FIRST AMENDMENT TO EXCLUSIVITY AGREEMENT
Exhibit 10.70
FIRST AMENDMENT TO EXCLUSIVITY AGREEMENT
This First Amendment (the “Amendment”) is made as of September 5, 2007, by and between Cardiac
Science Corporation, a Delaware corporation f/k/a Cardiac Science, Inc. (“Supplier” or “Cardiac
Science” or “CSC”), a medical device developer and manufacturer of automated external
defibrillators having its principal place of business at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx, XXX 00000 and GE Medical Systems Information Technologies, Inc., a Wisconsin
corporation d/b/a GE Healthcare (“GEMS-IT”), having its principal place of business at 0000 X.
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, CSC and GEMS-IT are parties to that certain OEM Purchase and Supply Agreement dated
July 29, 2003, as amended by (i) Addendum 1 thereto dated March 24, 2004 (“Addendum One”), (ii)
Amendment One thereto dated August 10, 2004 (“Amendment One”), (iii) Second Amendment thereto dated
February 14, 2005 (“Amendment Two”), and (iii) Third Amendment thereto dated June 10, 2005
(“Amendment Three”). The OEM Purchase and Supply Agreement, Addendum One, Amendment One, Amendment
Two and Amendment Three are collectively referred to herein as the “OEM Purchase and Supply
Agreement”.
WHEREAS, CSC and GEMS-IT are also parties to that certain Exclusive Distribution Agreement
dated June 10, 2005 (“Exclusivity Agreement”), which supplements the terms of the OEM Purchase and
Supply Agreement.
WHEREAS, CSC and GEMS-IT desire to supplement and further amend the Exclusivity Agreement as
set forth herein.
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NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Construction. Except as provided in this Amendment, the terms and conditions set
forth in the Exclusivity Agreement shall remain unaffected by the execution of this Amendment. To
the extent any provisions or terms set forth in this Amendment conflict with the terms set forth in
the Exclusivity Agreement, the terms set forth in this Amendment shall govern and control. Terms
not otherwise defined herein, shall have the meanings set forth in the Exclusivity Agreement or OEM
Purchase and Supply Agreement, as applicable. This Amendment supplements the OEM Purchase and
Supply Agreement and not that certain OEM Purchase Agreement entered into by the parties on July
29, 2003.
2. Exclusivity. The parties agree that Section 3 of the Exclusivity Agreement is
hereby amended to include the following language immediately after the first sentence:
“The Parties agree that GEMS-IT’s exclusive rights under this Section 3 shall not preclude
direct sales by CSC of the OEM Products and Parts and Accessories (as such terms are
defined in the OEM Purchase and Supply Agreement) to hospitals located in North America.”
3. Purchase Minimums.
| (a) | The parties agree that Section 4 of the Exclusivity Agreement is hereby deleted in its entirety and replaced with the following: |
“GEMS-IT has no minimum purchase commitments with respect to the sale of OEM Products,
Supplies and Accessories or the Other Defibrillator, Supplies and Accessories into the
hospital market in the United States and Canada.”
| (b) | The first sentence of Section 2 is hereby superseded and replaced with the following: |
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“This Agreement will commence as of the Effective Date and continue until June 30, 2009
(“Term”), unless GEMS-IT acquires a company that manufactures external defibrillators and
distributes said external defibrillators in the United States, in which case Supplier shall
have the option to terminate this Agreement by providing written notice of termination,
which shall be effective immediately.”
4. Referral of Hospital Prospects to GEMS-IT. The parties agree that Section 5 of the
Exclusivity Agreement is hereby deleted in its entirety.
5. Governing Law. The validity, construction, performance and enforceability of this
Amendment shall be governed in all respects by the laws of the State of New York, without reference
to the choice-of-law provisions thereof.
6. Counterparts; Facsimile. This Amendment may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Execution and delivery of this Amendment by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and
binding execution and delivery of this Amendment by such party. Such facsimile copies shall
constitute enforceable original documents.
7. Severability. In the event any provision of this Amendment shall be determined to
be invalid or unenforceable under applicable law, all other provisions of this Amendment shall
continue in full force and effect unless such invalidity or unenforceability causes substantial
deviation from the underlying intent of the parties expressed in this Amendment or unless the
invalid or unenforceable provisions comprise an integral part of, or in inseparable from, the
remainder of this Amendment. If this Amendment continues in full force and effect as provided
above, the parties shall replace the invalid provision with a valid provision which corresponds as
far as possible to the spirit and purpose of the invalid provision.
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8. Interpretation. This Amendment has been negotiated at arm’s length and between
persons sophisticated and knowledgeable in the matters dealt with in this Amendment. Each party
has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law
or legal decision that would require interpretation of any ambiguities in this Amendment against
the party that has drafted it is not applicable and is waived. The provisions of this Amendment
shall be interpreted in a reasonable manner to effect the purposes of the parties and this
Amendment.
9. Entire Agreement. The terms of this Amendment are intended by the parties to be
the final expression of their agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties further intend
that this Amendment constitute the complete and exclusive statement of its terms and shall
supersede any prior agreement with respect to the subject matter hereof.
10. Headings. The article and section headings contained in this Amendment are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their thereunto
duly authorized representatives as of the date first above written.
| Cardiac Science Corporation | GE Medical Systems Information Technologies, Inc. |
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By:
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/s/ Xxxxx Xxxxx | By: | /s/ Xxxxxxxx Xxxxx | |||
Name:
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Xxxxx Xxxxx | Name: | Xxxxxxxx Xxxxx | |||
Title:
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Senior Vice
President, Sales, Marketing and Service, North America |
Title: | Vice President & General Manager Cardiology Systems |
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