EXHIBIT 10.13
[LOGO] CYTYC corporation
SUPPLY AGREEMENT
THIS AGREEMENT is made effective as of the 31st December 2000 by and between
1. Whatman, Inc., a US Corporation incorporated in the state of New Jersey, ,
having an address at 0 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, XXX (hereinafter
referred to as "Whatman"),
2. Whatman SA, having an address at Avenue Xxxxxxxx 00x, X-0000
Xxxxxxx-xx-Xxxxx, Xxxxxxx, (hereinafter to as "Whatman SA"), and
3. Cytyc Corporation, a Delaware corporation, having an address at 00 Xxxxxxx
Xxxx, Xxxxxxxxxx, XX 00000, XXX, (hereinafter referred to as "Cytyc"),
Whatman and Cytyc being collectively referred to as the "Parties'.
WHEREAS, Cytyc is the owner of technology, patent rights and regulatory
approvals related to Cytyc's ThinPrep cytyological sample preparation system,
which is sold by Cytyc under the "ThinPrep" trademark;
WHEREAS, Whatman manufactures itself or through its subsidiary or affiliated
companies, certain *** and *** polyester filter membrane material
("Whatman Product"), which is sold by Whatman itself or through its subsidiary
or affiliated companies under the trademarks "Cyclopore" and "Whatman"; and
WHEREAS, Cytyc wishes to be supplied exclusively by Whatman with Whatman Product
for incorporation into Cytyc's ThinPrep System and Whatman wishes exclusively to
supply Whatman Product to Cytyc pursuant to the terms and conditions of this
Agreement.
WHEREAS, Whatman SA and Cytyc are Parties to a Supply Agreement dated 21st
August 1997 ("the Supply Agreement") and wish to terminate that Agreement with
effect from the 31st December subject to commencement of this Agreement.
NOW, THEREFORE, for the mutual premises and covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the Parties hereby agree as follows:
1. TERMINATION OF WHATMAN SA and CYTYC AGREEMENT
In consideration of Whatman and Cytyc entering into this Supply Agreeement,
Cytyc and Whatman SA agree to terminate the Supply Agreement between them
effective 31st December 2000 subject to this Supply Agreement becoming
effective at that date and providing Whatman assumes full responsibility
for any Whatman Product sold to Cytyc by Whatman, but manufactured by
Whatman SA in accordance with the applicable provisions of this Agreement.
2. SUPPLY OF PRODUCTS
2.1 Exclusivity
Whatman agrees to supply exclusively to Cytyc and Cytyc agrees to
purchase exclusively from Whatman the Product as specified in Appendix
I (the "Whatman Product"). Providing Cytyc is not in breach of its
obligations hereunder, during the Term Whatman agrees not to supply a
product which is substantially similar to the Whatman Product to any
medical diagnostic company with products focused on filtering cell
preservative
solutions other than Cytyc and Cytyc agrees, providing Whatman is not
in breach of its obligations under the Agreement, not to purchase any
product which is substantially similar to the Whatman Product other
than from Whatman.
2.2 Manufacturing Specifications
(a.) Whatman agrees to manufacture the Whatman Product for Cytyc at
Whatman's manufacturing facilities in accordance with the product
specifications provided by Cytyc, in Appendix I (which includes
the pore size and density, other product specifications, tests
and range of acceptable values).
(b.) During the Term, Whatman shall (i) strictly follow the product
specifications set forth on Appendix I, in manufacturing the
Whatman Product and (ii) shall not make any changes or additions
to Appendix I, without Cytyc's prior written authorisation, which
shall not be reasonably withheld, delayed or conditioned.
(c.) In the event that Whatman desires to change any component or raw
material used in the Whatman Product, or its manufacturing
specifications or processes which could affect the Whatman
Product, Whatman shall first notify Cytyc in writing and obtain
Cytyc's written approval which approval shall not be unreasonably
withheld, delayed or conditioned.
(d.) Whatman agrees that in discharging its obligations hereunder, it
will comply with applicable laws and governmental regulations in
connection with its manufacturing processes and the conduct of
its business relevant to this Agreement and only providing it has
a consequence for Cytyc, Whatman shall have no responsibility or
liability to Cytyc for violating any intellectual property rights
of third parties if such alleged violation results directly from
Whatman's compliance with Cytyc's specification as set out in
Appendix I, or violating any other laws or regulations applicable
to its business, unless such violation has an impact on Cytyc.
2.3 Purchase Orders
(a) (i) This Agreement does not constitute a purchase order. From
time to time, Cytyc shall submit firm purchase orders for
quantities of Whatman Product required . If a conflict exists
between this Agreement and any purchase order issued by Cytyc
pursuant to this Agreement, this Agreement shall govern, with the
sole exception of any non price related terms in the "comments"
section of any purchase order which is to be agreed by the
Parties in advance and which shall govern for that specific
purchase order. A prototype Cytyc purchase order with the agreed
upon "comments" section is attached here as Appendix 2. (ii)Cytyc
agrees to purchase, and Whatman agrees to supply, Whatman Product
ordered by Cytyc on the terms and conditions contained herein.
Whatman shall fill such orders by the delivery date set forth in
the purchase order provided that such delivery date is more than
120 days from the date the purchase order is sent, or such other
period as may be agreed by the Parties in writing from time to
time.
2.4 Forecasts
Subject to Clause 3.1 of this Agreement, on or before the last
business day of January and July of each year, Cytyc shall submit to
Whatman written nonbinding rolling forecasts of the quarterly
quantities of Whatman Product expected to be ordered during the
twenty-four (24) months following the date of such forecasts and the
annual amounts required in the three years thereafter determined by
Cytyc to the best of its knowledge. Whatman shall co-operate fully in
estimating and scheduling production for firm purchase orders based on
Cytyc's forecasts.
2.5 Production Capacity
Whatman agrees that during the Term it shall maintain productive
capacity to supply no less than 110% of Cytyc's forecast annual
requirement for the Whatman Product; provided that not more than 30%
of such annual forecast is scheduled for any one quarter thereof. If
there is any increase of more than 10% in the actual volume required
for any annual period compared to the forecast then Whatman may defer
the supply of such excess for up to six months (or as otherwise agreed
between the Parties in writing) in order to modify production
capacity.
2.6 Quality Control
(a.) Prior to shipment of any order, Whatman shall perform quality
control and assurance on each lot of Whatman Product to ensure
that the Whatman Product shipped to Cytyc conforms to, and
complies with, the manufacturing specifications set forth on
Appendix I and the form of Certificate of Traceability set forth
on Appendix 3 attached hereto ("Certificate") containing the
results and data on the inspection and testing by Whatman for
each membrane lot of Whatman Product and certifying that the
shipped Whatman Product conforms to such manufacturing
specifications.
(b.) A Certificate shall accompany each shipment of Whatman Product.
(c.) All Whatman Product delivered to Cytyc hereunder shall be *** by
Whatman and/or its subsidiary or affiliate companies, within one
hundred and eighty (180) days prior to such shipment unless
otherwise agreed in writing by the Parties hereto.
(d.) Cytyc shall have the right to inspect and audit Whatman's
manufacturing facilities and to review all manufacturing
processes for the manufacture of the Whatman Product in
accordance with the specification pursuant to this Agreement
during normal business hours and upon reasonable notice to
Whatman.
2.7 Delivery, Acceptance and Warranty
(a.) Delivery
Whatman Product supplied to Cytyc hereunder shall be delivered
F.O.B. at Whatman's site of manufacture of Whatman Product, or on
such other terms as the Parties may agree from time to time in
writing. Whatman shall make delivery to Cytyc in accordance with
written delivery and shipping instructions accompanying each
purchase order, and shall promptly provide Cytyc written
verification of each shipment.
(b.) Warranty
Whatman warrants that all Whatman Products shall conform with the
specifications set forth in Appendix I and the Certificate for a
period of: eighteen (18) months from the date of delivery to
Cytyc until such time that Whatman's manufacturing facility at
Scarborough, Maine, has been validated by Cytyc,
whereafter the period shall be twelve (12) months from the date
of delivery to Cytyc.
Within 30 days of the date of delivery, or expected date of
delivery, as the case may be, or within 30 days of discovery of
any failure to comply with the Specifications or Certificate
during the Warranty period, Cytyc must notify Whatman in writing
if any Whatman Product does not conform to the specifications in
Appendix 1, or is damaged; or any order, or part of any order is
not delivered.
(c.) Payment
Payment for Whatman Products shall not constitute acceptance.
Acceptance by Cytyc shall not relieve Whatman of its warranty or
any other obligation under this agreement.
(d.) Cytyc and Whatman each represent and warrant to the other that
each of them shall use its best efforts to cure any breach as set
forth in Section 7.2 hereof.
2.8 Replacement of or Refunds for Products
In the event that a shipment of Whatman Product has been delivered in
damaged form or has not been delivered in full, or fails to comply
with the product specifications set forth on Appendix I, Certificate,
and if written notice thereof is duly given to Whatman as provided in
Section 2.7(b) and 3.2 hereof, Whatman shall replace the missing or
defective quantity of Whatman Product as soon as practicable, but in
any event, no later than sixty (60) days after notice thereof or shall
refund the purchase price in full, at Cytyc's option. Whatman shall
absorb all transportation costs related to defective product shipment
and returns and shall bear all risk of loss in transit for such
material.
3. MINIMUM PURCHASE AMOUNTS AND STOCK
3.1 Minimum Purchase Amounts
During the term of this Agreement, Cytyc agrees to purchase Whatman
Product for the minimum aggregate invoice price (net of taxes, duties,
tariffs or charges of any kind and net of rebates, returns and
credits) of US$ *** million or ***% of the forecasted amount for the
year, whichever is the higher, in the year 2001. In each subsequent
year of the Term, the minimum aggregate invoice price of US$***
million will be adjusted upward in proportion to any price increase
implemented pursuant to this Agreement.
3.2 Stock of Irradiated Membrane
(a.) Whatman shall manufacture and hold as safety stock *** membrane
conforming to Appendix 1, in an amount sufficient, for eventual
processing into Whatman Product ("the Stock") which is equivalent
to Cytyc's requirement for the second 12 months of Cytyc's 24
month forecasts provided pursuant to Clause 2.4 hereof. Whatman
shall provide Cytyc on a quarterly basis in January et. seq. of a
certificate showing the amount of the Stock.
(b.) Whatman shall not charge Cytyc for the Stock held by it other
than a storage charge which is included in the price in Clause
4.1 (a) below in an amount of ***% of that price, provided
however that Whatman shall be entitled, on any occasion that
prices may be increased pursuant to Clause 4.1 (c) or (d), to
increase the price of the Whatman Product to Cytyc in respect of
the storage cost according to the following formula:
( B x ***% ) X Current Price
-
( A )
Where in the year in respect of which stock is held
A = Actual amount ordered by Cytyc
B = Forecast amount by Cytyc
Which formula shall only be applied where B results in a factor of
more than ***. -
A
An example of this calculation is annexed hereto as Appendix 4.
(c.) Cytyc shall be unconditionally liable to purchase the Stock at a
price of ***% of the then current price of Whatman Product,
immediately upon termination of this Agreement for any reason but
only providing it conforms to the specification in respect of
*** in Appendix 1.
4. PAYMENTS
4.1 Price
(a.) In consideration of Cytyc agreeing to have Whatman be its
exclusive supplier of Whatman Product hereunder, Cytyc shall pay
to Whatman a price per square metre of US$*** FOB site of
manufacture for the year 2001. Cytyc shall make such payment to
Whatman in US dollars within thirty (30) days of the date of
receipt of each invoice.
(b.) Cytyc coordinates and shall pay all shipping and handling costs,
sales, use, excise or similar taxes or duties, tariffs,
withholding obligations and other export fees as applicable.
(c.) Whatman may revise prices annually during the Term, subject to
six month's prior notice thereof and the agreement thereto of the
Parties in writing. Should the Parties fail to agree, then the
existing price shall be increased by the amount of any increase
in the US Consumer price index for the previous twelve months.
Additionally, Whatman and Cytyc may discuss potential ways of
improving efficiencies and share any savings ratably.
(d.). Notwithstanding the foregoing, Whatman shall have the right to
revise the price for Whatman Product in order to take account of
any extraordinary circumstances which arise outside of the
reasonable control of Whatman and which have a material impact on
the raw material and other costs of production.
5. INTELLECTUAL PROPERTY
(a.) Whatman represents that, Whatman has the exclusive right to use the
trademark "Cyclopore" and "Whatman" in connection with the Whatman
Products and that Cytyc shall not use or permit others to use the
"Cyclopore" or "Whatman" trademark in any way whatsoever with or in
connection with the Whatman Product purchased by Cytyc hereunder
without the written permission of Whatman. Cytyc agrees that it shall
not resell the Whatman Product in any manner whatsoever under any
trademark other than the "ThinPrep" trademark without the express
written consent of Whatman.
(b.) Cytyc represents that it has the exclusive right to use the "Thin
Prep" trademark for medical sample preparations.
(c.) Nothing in this Agreement shall be construed as conveying a license,
right, title, or interest in or to any trademark other than the
permissive use in connection with the manufacture of Whatman Product
and its sale by Cytyc under the Thin Prep trademark.
(d). If Cytyc is sued alleging that the manufacturing process used for the
Whatman Product infringes a United States patent, Whatman agrees to
use reasonable efforts to defend the suit, pay reasonable litigation
costs, indemnify Cytyc for any actual damages awarded or any
settlement approved by Whatman, provided Cytyc: gives Whatman (i)
timely written notice of such suit; (ii) continuous cooperation in the
defense of the suit; and (iii) control over the defense of any such
suit. If in any such suit Cytyc is enjoined by a final, unappealable
court order, or by a settlement approved by Cytyc, from using the
Whatman Product , Whatman may at its discretion and using reasonable
endeavors (i) procure for Cytyc the right to continue using the
Whatman Product or, (ii) replace or modify the Whatman Product to
avoid infringement. Notwithstanding any other provision hereof,
Whatman shall have no obligation to defend, and shall not be liable
for any costs or damages awarded in, any suit for infringement
concerning (i) the Whatman Product if made to specifications supplied
by Cytyc, (ii) any infringement, based upon the use by Cytyc of the
Whatman Product (but not its manufacture).
6. LIMITATION OF LIABILITY
6.1 WHATMAN SHALL BE LIABLE (IN THE YEAR SUCH DAMAGES ARE INCURRED BY
CYTYC) FOR ALL DIRECT COSTS, LOSSES (FOR THE AVOIDANCE OF DOUBT,
EXCLUDING LOSS OF PROFITS) AND EXPENSES, PROVIDING SAME ARE DIRECTLY
ATTRIBUTABLE TO THE MANUFACTURE, DELIVERY AND SUBSEQUENT USE BY CYTYC
OF WHATMAN PRODUCT WHICH DOES NOT CONFORM TO THE PRODUCT
SPECIFICATIONS IN APPENDIX 1. WHATMAN'S TOTAL LIABILITY HEREUNDER
SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO WHATMAN BY CYTYC HEREUNDER
IN THE YEAR SUCH SUIT IS RESOLVED.
6.2 During the term of this Agreement and for a period of three years
following the termination of this Agreement, each Party shall maintain
insurance coverage of the types and in amounts usually insured by
companies of the size and operating the business conducted by such
Party, including, without limitation, such insurance coverage as such
Party is required to maintain under applicable law and comprehensive
general liability insurance (including product liability) safeguarding
against liability for injuries to persons, including injuries
resulting in death, and damage to property. In no event shall such
insurances have an aggregate value of less than US$ 10 million or
equivalent.
7. TERM and TERMINATION
7.1 Unless earlier terminated in accordance with this Article 7, this
Agreement shall commence on the date set forth above and shall
continue through December 31, 0000 ("xxx Xxxx").
7.2 Either Party shall have the right to terminate this Agreement
immediately, by notice in writing in the event that the other Party
hereto
(i) shall default on or materially breach any of its covenants,
undertakings or obligations on its part to be performed hereunder
(with respect of Cytyc, such breach to include non-payment by
Cytyc hereunder or failure to purchase Minimum Purchase Amounts),
and such default or breach is not corrected or cured within 30
days after written notice thereof has been given by the
nondefaulting party; or
(ii) enters into liquidation whether compulsorily or voluntarily
otherwise than for the purposes of amalgamation or reconstruction
or compound with its creditors or has a Receiver appointed over
all or any part of its assets or take or suffers any similar
action in consequence of debt.
7.3 Any termination under this Article 7 shall be without prejudice to the
rights of either Party against the other then accruing or otherwise
accrued under this Agreement. All outstanding obligations and
liabilities of Cytyc and Whatman under Articles 3.1, 3.2 (c) 5, 6, 7
and 8 hereof shall survive any expiration or termination of this
Agreement. Upon termination, Whatman shall promptly provide Cytyc with
all copies of Appendix 1 and any derivative documents and remaining
finished inventory of Whatman Product upon payment by Cytyc of the
applicable price for such Whatman Product. Whatman and Cytyc shall use
their best efforts to agree on reasonable terms for Whatman to provide
Cytyc with details of Whatman's manufacturing specifications in
respect of the Whatman Product.
8. CONFIDENTIALITY
8.1 The Parties hereto shall treat all confidential information and
materials received from the other, as confidential and agree not to
use or disclose to any third party, other than directors, officers,
employees, agents or advisors ("Representatives") who need to know
such information in connection with this Agreement, any such
information or materials without first obtaining the written consent
of the Party providing the information. Whatman further agrees to take
all practicable steps to ensure that any such information shall not be
used by its Representatives, except on like terms of confidentiality
as aforesaid, and that such information shall be kept fully private
and confidential by them. In any event, the Parties shall be
responsible for any breach of this Agreement by any of their
respective Representatives.
8.2 For purposes of this Article 8, confidential information shall mean
(i) all information marked confidential by the disclosing Party, and,
if disclosed orally, summarised in written format and marked
confidential within thirty (30) days of disclosure to the other Party,
and (ii) the existence or terms and conditions of this Agreement. The
Parties agree that disclosure of Confidential Information as defined
herein shall not be made by "e-mail" transmission. The term
Confidential Information shall mean certain information (including,
but not limited to, by way of sample) concerning the composition,
methods of manufacture, processes and quality control of the Parties'
respective products and processes, or other proprietary or
confidential information relating to their respective customers,
finances and business plans which is valuable and confidential (the
"Confidential Information").
8.4 Notwithstanding the foregoing, the obligations set forth in this
Article 8 shall not apply to any information which:
(a) at the time of its disclosure is already in the public domain or
subsequently comes into the public domain otherwise than by
breach of this Agreement;
(b) the recipient of such disclosure (the "Receiving Party")
demonstrates to the Party disclosing information (the "Disclosing
Party") was, immediately prior to its disclosure, already in the
possession of the Receiving Party, but not already published;
(c) the Disclosing Party authorises to the Receiving Party in writing
to be disclosed;
(d) the Receiving Party receives from a third party which such third
party did not itself obtain it in confidence directly or
indirectly from the Disclosing Party;
(e) is disclosed in response to a valid order by a court or other
governmental body, which was otherwise required be law, or any
disclosure necessary to establish the rights of either Cytyc or
Whatman under this Agreement; provided, however, that
the Receiving Party shall first give written notice of such
required disclosure to the Disclosing Party; or
(f) is independently developed by either party without reference to
Confidential Information, as evidenced by verifiable records.
9. NOTICES
9.1 Any notice required or permitted to be given hereunder shall be sent
in writing by registered or certified airmail, postage prepaid, return
receipt requested, or by air courier, or telecopier, or facsimile
transmission addressed to the Party to whom it is to be given as
follows:
If to Whatman: Whatman, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 XXX
Fax: (000) 000 0000
Attention: President and
Chief Executive Officer
Copy to: Company Secretary
Whatman plc
Xxxxxxx Xxxxx
Xx. Xxxxxxx'x Xxxx
00/00 Xxxxxxxxx
Xxxx XX00 0XX
Fax: x00(0)0000 000000
If to Cytyc: Cytyc Corporation
00 Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxxxxxxx 00000 XXX
Fax: (000) 000-0000
Attention: Vice President, Operations
With CC to: VP HR & General Counsel
or to such other address or addresses as may from time to time be
given in writing by either Party to the other pursuant to the terms
hereof.
9.2 Any notice sent pursuant to this Article 9 shall be deemed delivered
on the third business day after dispatch by airmail and on the second
business day after dispatch by air courier or telecopier or facsimile.
10. MISCELLANEOUS
10.1 Assignment
This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, except
(a.) with respect to Whatman, in connection with any reorganisation,
merger or consolidation of Whatman involving (i) only a change in
the state of incorporation of Whatman, (ii) a merger of Whatman
with or into a wholly-owned subsidiary of Whatman, (iii) the
transfer of the outstanding capital stock of Whatman to any
wholly-owned subsidiary of Whatman plc, or (iv) an acquisition or
merger, reorganisation or consolidation, of which Whatman is the
surviving corporation and operates as a going concern and 60% or
more of the same management, where Whatman is purchasing the
assets or stock of another entity (vs. the sale of all or
substantially all of the assets of Whatman) and
(b.) with respect to Cytyc, in connection with the acquisition of
Cytyc, including an acquisition by any (i) sale, issuance,
exchange or transfer, in a single transaction or a series of
related transactions, of greater than fifty percent (50%) of the
oustanding capital stock of Cytyc to a third party, (ii) sale of
all or substantially all of the assets of Cytyc, or (iii) merger,
consolidation or other reorganisation involving Cytyc and one or
more other entities in which the shares of Cytyc outstanding
capital stock immediately prior to such transaction are converted
into, exchanged for or represent less than a majority of the
voting power of the surviving or resulting entity.
(c.) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the Parties hereto and their respective
successors and permitted assigns.
10.2 Force Majeure
Any delays in or failures of performance by either Party under this
Agreement shall not be considered a breach of this Agreement if and to
the extent caused by occurrences beyond the reasonable control of the
Party affected, including, but not limited to: Acts of God; acts,
regulations or laws of any government (including, without limitation,
import and export regulations); strikes or other concerted acts of
workers; lawsuits relating to the subject matter hereof; fires;
floods; explosions; riots; wars; rebellion and sabotage; and any time
for performance hereunder shall be extended by the actual time of
delay caused by such occurrence. Each Party shall promptly give notice
to the other of the starting and stopping of the above-mentioned
occurrences. Cytyc may seek an alternative supplier if any disruption
of supply of Whatman Product exceeds 30 days.
10.3 Entire Agreement
This Agreement and its appendices constitute the entire understanding
between the Parties with respect to the subject matter hereof and
supersedes and replaces all prior agreements, understandings, writings
and discussions between the Parties relating to said subject matter.
10.4 Amendments
(a.) This Agreement may be amended and any of its terms or conditions
may be waived only by a written consent executed by both Parties,
or, in the case of a waiver, by the Party waiving compliance.
(b.) The failure of either Party at any time or times to require
performance of any provision hereof shall in no manner affect its
rights at a later time to enforce the same.
(c.) No waiver by either Party of any condition or term in any one or
more instances shall be construed as a further or continuing
waiver of such condition or term or of another condition or term.
10.5 Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which taken together
shall constitute one and the same instrument.
10.6 Governing Law
The validity interpretation and performance of this Agreement and the
rights and obligations of the Parties arising hereunder shall be
governed by the internal laws of the
Commonwealth of Massachusetts and the Parties hereby consent to the
non-exclusive jurisdiction of the courts of the Commonwealth of
Massachusetts.
10.7 Severability
If any provision of this Agreement is or becomes illegal or
unenforceable, as determined by a court of competent jurisdiction, the
remaining provisions contained herein shall nevertheless be valid and
binding upon the Parties hereto.
10.8 Relationship of the Parties
Neither Party shall act or represent or hold itself out as having
authority to act as an agent, employee or partner of the other Party,
or in any way bind or commit the other Party to any obligations.
Nothing contained in this Agreement shall be construed as creating a
partnership, joint venture, agency, trust or other association of any
kind, each Party being individually responsible only for its
obligations as set forth in this Agreement. All activities by either
Party under the terms hereof shall be carried on by them as
independent contractors and not as an agent for the other. Employees
of either Party performing services hereunder shall not be deemed to
be employees of the other.
10.9 Headings
The headings in this Agreement are inserted for convenience and
identification only, and are not intended to describe, interpret,
define or limit the scope or intent of this Agreement or any clause
hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Supply Agreement to be
executed by their duly authorised officers effective as of the date and year
first above written.
WHATMAN, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
WHATMAN S.A.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
CYTYC CORPORATION
BY: /s/ A. Xxxxxxx Xxxxxxx-Xxxxxxx
-------------------------------
A. Xxxxxxx Xxxxxxx-Xxxxxxx
Vice President, Human Resources, General Counsel and Secretary
CONFIDENTIAL
APPENDIX 1 Whatman Product
APPENDIX 2 Form of Purchase Order
APPENDIX 3 Form of Certificate
APPENDIX 4 Example for Irradiated membrane calculation pursuant to
section 3.2
AMENDMENT No. 1
dated October 16, 2001
to the Agreement dated December 31, 2000
(hereinafter referred to as "the Agreement")
between:
Whatman, Inc., a US Corporation incorporated in the state of New Jersey, having
an address at 0 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, XXX (hereinafter referred to
as "Whatman"),
Whatman SA, having an address at Xxxxxx Xxxxxxxx 00x, X-0000 Xxxxxxx-xx-Xxxxx,
Belgium, (hereinafter referred to as "Whatman SA"), and
Cytyc Corporation, a Delaware corporation, having an address at 00 Xxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, XXX, (hereinafter referred to as "Cytyc"),
Whatman, Whatman SA and Cytyc being collectively referred to as the "Parties".
WHEREAS, the Parties are desirous of amending the Agreement;
NOW THEREFORE, in consideration of the agreements, mutual representations and
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. This Amendment constitutes an amendment to the Agreement pursuant to
the provisions of clause 10.4 of the Agreement.
2. Clause 7.1 shall hereby read as follows:
Unless earlier terminated in accordance with this Article 7, this
Agreement shall commence on the date set forth above and shall
continue through December 31, 2007 ("the Term")
3. Whatman and Cytyc have agreed to purchase additional stock of ***,
a raw material used in the manufacturing of *** membranes for
Cytyc, conforming to the specifications in Appendix 1 of the Agreement
(the "Raw Material") for years 2006 and 2007 at an amount of ***
Kg @ *** BFR for $*** US, *** ***%) or $*** paid for by
Whatman and *** ***%) or $*** paid for by Cytyc.
4. During the Term of the Agreement, the Raw Material will be stored at
facilities of both Parties in the proportions respectively paid by
them, and neither party will charge the other for storage costs of the
Raw Material.
Page 1 of 2
5. Whatman agrees to first utilize all of its current stock of ***
(including the additional ***% purchased by Whatman) (the "current
stock") to meet Cytyc's production needs. Once the current stock is
depleted, Whatman agrees to only purchase from Cytyc the reserve stock
of *** (the ***% purchased and stored by Cytyc) as necessary to meet
Cytyc's production requirements at Cytyc's cost (as described in
clause 3 above). Cytyc agrees to purchase from Whatman, at the cost
Whatman paid for the Raw Material (whether as current stock or as
purchased from Cytyc) (as described in clause 3 above) any balance of
Raw Material purchased by Whatman which remains at the end of the Term
of the Agreement as amended herein, providing the Raw Material is in
compliance with the specifications of Appendix 1of the Agreement at
the time of the purchase.
6. Whatman shall continue to comply with the provisions of Section 3.2 of
the Agreement only to the extent that the Raw Material conforming to
the specifications in Appendix 1 of the Agreement shall be available
from the stocks purchased by Whatman pursuant to the Agreement as
amended herein or a newly qualified replacement of the Raw Material is
purchased by Whatman pursuant to a mutual agreement of the Parties.
7. The Parties expressly agree that there are no other understandings,
writings or discussions related to the subject matter hereof other
than the Agreement and this Amendment No.1.
8. Except as expressly modified by this Amendment No. 1, the Agreement
shall continue in full force and effect in accordance with its terms
as stated therein, but, to the extent of such modification, the
provisions of this Amendment shall supersede those of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be executed by their fully authorized representatives.
WHATMAN, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
WHATMAN S.A.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
CYTYC CORPORATION
By: /s/ A. Xxxxxxx Xxxxxxx-Xxxxxxx
-------------------------------
A. Xxxxxxx Xxxxxxx-Xxxxxxx
Vice President, Human Resources, General Counsel and Secretary
Page 2 of 2
AMENDMENT No. 2
dated May 2, 2002
to the Agreement dated December 31, 2000
(hereinafter referred to as "the Agreement")
between:
Whatman, Inc., a US Corporation incorporated in the state of New Jersey, having
an address at 0 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, XXX (hereinafter referred to
as "Whatman"),
Whatman SA, having an address at Xxxxxx Xxxxxxxx 00x, X-0000 Xxxxxxx-xx-Xxxxx,
Belgium, (hereinafter referred to as "Whatman SA"), and
Cytyc Corporation, a Delaware corporation, having an address at 00 Xxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, XXX, (hereinafter referred to as "Cytyc"),
Whatman, Whatman SA and Cytyc being collectively referred to as the "Parties".
WHEREAS, the Parties are desirous of amending the Agreement which was previously
amended by Amendment 1 on October 16, 2001;
NOW THEREFORE, in consideration of the agreements, mutual representations and
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. This Amendment constitutes an amendment to the Agreement pursuant to
the provisions of clause 10.4 of the Agreement.
2. Clause 7.1 shall hereby read as follows:
Unless earlier terminated in accordance with this Article 7, this
Agreement shall commence on the date set forth above and shall
continue through December 31, 2012 ("the Term")
3. Clause 3.1 shall hereby read as follows:
During the term of this Agreement, Cytyc agrees to purchase in each
year Whatman product for the minimum aggregate invoice price (net of
taxes, duties, tariffs or charges of any kind and net of rebates,
returns and credits) of US$ *** million or ***% of the
forecasted amount for the year, whichever is higher, beginning January
1, 2003. Based upon Cytyc's commitment above, Whatman agrees to
increase its production capacity for Cytyc by adding a third ***
line to be located in Whatman's plant in Scarborough, Maine which is
qualified by Cytyc.
Page 1 to 2
4. Clause 4.1 (c.) shall hereby read as follows:
Whatman may revise prices annually during the term, subject to one
year's prior notice to Cytyc and the agreement thereto by the parties
in writing. Should the parties fail to agree, then the existing price
shall change by the amount of any change in the United States Producer
Price Index, Commodity Code WPUSOP2900 "intermediate materials less
food and energy" for the previous twelve-month period. Additionally,
Whatman and Cytyc may discuss potential ways of improving efficiencies
and share any savings ratably.
5. The Parties expressly agree that there are no other understandings,
writings or discussions related to the subject matter hereof other
than the Agreement, Amendment No. 1 and this Amendment No.2.
6. Except as expressly modified by this Amendment No. 2, the Agreement,
as previously amended, shall continue in full force and effect in
accordance with its terms. In the event of any conflict between this
Amendment No. 2 and the terms of the Agreement as previously amended,
the terms of this Amendment No. 2 shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to the
Agreement to be executed by their fully authorized representatives.
WHATMAN, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
WHATMAN S.A.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
CYTYC CORPORATION
By: /s/ A. Xxxxxxx Xxxxxxx-Xxxxxxx
-------------------------------
A. Xxxxxxx Xxxxxxx-Xxxxxxx
Vice President, Human Resources, General Counsel and Secretary
Page 2 to 2
