FIRST AMENDMENT TO OEM AGREEMENT
EXHIBIT 10.17
FIRST
AMENDMENT TO OEM AGREEMENT
This
First Amendment to OEM Agreement (“Amendment”) is made and entered into as of
this __ day of July 2007, by and between Arthrex, Inc., a Delaware corporation
having its principle place of business at 0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxx 00000 (“Arthrex”) and Bovie Medical Corporation, a Delaware corporation
having its principle place of business at 0000 00xx Xxxxxx
X, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (“Bovie”). Arthrex and Bovie are
each a “Party” and, together, are “Parties.”
RECITALS:
WHEREAS,
capitalized terms used herein have the meaning set forth in this Amendment or
the meaning set forth in the respective agreement referenced herein where such
capitalized terms are defined;
WHEREAS,
the Parties entered into that certain Original Equipment Manufacturing Agreement
with a Start Date of March 13, 2003 (the “OEM Agreement”);
WHEREAS,
pursuant to Section 6.0 of the OEM Agreement, on or about May 22, 2007, Arthrex
provided Bovie with its written notice of non-renewal of the OEM Agreement,
which is set to expire on March 14, 2008 (the “Amendment Effective
Date”);
WHEREAS,
pursuant to Section 12.7 of the OEM Agreement, the Parties may modify the OEM
Agreement only by a signed writing; and
WHEREAS,
in lieu of non-renewal or termination pursuant to Section 6.0, the Parties have
negotiated new terms respecting (i) exclusivity, (ii) non-competition, (iii)
minimum purchase quantities, and (iv) related and affected provisions, under
which the Parties desire to modify, renew and extend the OEM Agreement, as
further set forth below.
NOW,
THEREFORE, in consideration of the foregoing recitals (which are incorporated
herein and made a part hereof) and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree as
follows.
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1.
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Amendment. As
of the Amendment Effective Date, the following modifications to the OEM
Agreement shall apply:
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a.
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The
text of Section 2.1(c) is hereby replaced with the
following:
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Notwithstanding
anything to the contrary in Sections 2.1(a) and (b), in the event that any
change or modification to the Products or the Product Specifications requires
additional professional services, or results in a change in the costs incurred
by Bovie in the engineering, development, production, manufacture, sterilization
or packaging of the Products, Bovie shall so notify Arthrex and, upon Bovie’s
receipt of Arthrex’s written consent thereto, Bovie shall invoice Arthrex for
the professional services, change the applicable purchase price of, and
implement the change or modification to, the Products and their Product
Specifications.
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b.
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The
text of Section 2.2(a) is hereby stricken and replaced with “Intentionally
Left Blank.”
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c.
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In
Section 2.2(b), the preamble “[s]ubject to Section 2.2(a) above,” is
hereby stricken.
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d.
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In
Section 2.7, the phrase “except to a Back-up Supplier as set forth in
Section 2.11” is hereby stricken.
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e.
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The
text of Sections 2.10(a) and 2.10(b) are hereby stricken and each replaced
with “Intentionally Left Blank.”
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First Amendment to OEM Agreement
07.11.07
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Page 1
of 2
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f.
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The
text of Section 2.11 (Alternate Source of Supply) is hereby stricken and
replaced with “Intentionally Left
Blank.”
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g.
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In
Section 3.1 (Purchase Price), the portion of the second sentence that
begins, “; provided, however, that
in no event…” to the end of that sentence, is hereby
stricken.
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h.
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Pursuant
to Section 6.0 (Term), the Parties hereby consent to the renewal of the
Term for consecutive three (3) year periods, as provided
therein. The first renewal shall commence on March 14, 2008 and
expire on March 14, 2011.
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i.
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The
text of Section 7.1(a)(iv) is hereby stricken and replaced with
“Intentionally Left Blank.”
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j.
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The
text of Section 10.0 (Non-Competition) is hereby stricken and replaced
with “Intentionally Left Blank.”
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2.
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Effect on
Agreement. Except as expressly stated herein, or by
necessary implication amended by the terms of this Amendment, the terms
and conditions of the OEM Agreement are ratified and confirmed, and shall
remain in full force and effect.
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IN WITNESS WHEREOF, the
Parties have hereby executed this Amendment as of the date first written
above.
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BOVIE
MEDICAL CORPORATION
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/S/ R. Xxxxx Xxxxx
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/S/ Xxxxx Citronowicz
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Signature
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Signature
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R. Xxxxx Xxxxx
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Xxxxx Citronowicz
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Printed
Name
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Printed
Name
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VP
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VP/COO
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Title
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Title
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8/21/07
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Date
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Date
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