Exhibit 10.20*
The confidential portions of this exhibit, which have been removed and
replaced with an asterisk, have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406.
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this
12 day of April, 2000, by and among MEDTRONIC, INC. ("MEDTRONIC"), a Minnesota
corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Ltd. Located at 10,000 ▇▇▇▇▇▇ Drive in Clarence,
New York ("WGL").
WITNESSETH:
WHEREAS, MEDTRONIC has developed expertise and intellectual property in
the field of implantable medical devices and external devices used to treat
arrhythmias; and
WHEREAS, WGL has developed expertise and intellectual property with
batteries and tantalum capacitors for use in implantable devices; and
WHEREAS, MEDTRONIC and WGL desire to enter in this Development Agreement
whereby WGL will develop custom tantalum capacitors for use in Medtronic devices
upon the terms and conditions set forth in this Agreement; and
WHEREAS, if development of die tantalum capacitors is successful, WGL
would agree to manufacture and supply the tantalum capacitors to Medtronic under
a separate agreement; and
WHEREAS, MEDTRONIC and WGL desire to work together to develop the
technology for suitable application for MEDTRONIC implantable devices;
AGREEMENTS:
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, and for other valuable consideration
described herein, the receipt and adequacy of which is hereby acknowleged, the
parties mutually agree as follows:
ARTICLE 1
DEFINITIONS
1.1) Specific Definitions. As used in this Agreement, the following
capitalized terms shall have the meanings set forth below:
"Affiliate" of any entity means any other entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the first entity. "Control" shall mean owning more
than fifty percent (50%) of the total voting power of the entity.
"Agreement" means this Agreement and all Appendices hereto.
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"Confidential Information" means know-how, trade secrets, and unpublished
information disclosed by one of the parties (the "disclosing party") to the
other party (the "receiving party") or generated under this Agreement, excluding
information which:
(a) was already in the possession of receiving party prior to its
receipt from the disclosing party, provided that whenever relying on this
paragraph for any reason, the receiving party shall, if requested,
promptly provide the disclosing party with reasonable documentary proof
thereof;
(b) is or becomes part of the public domain by reason of acts not
attributable to the receiving party;
(c) is or becomes available to receiving party from a source other
than the disclosing party which source, to the best of the receiving
party's knowledge, has rightfully obtained such information and has no
obligation of nondisclosure or confidentiality with respect thereto;
(d) is made available by the disclosing party to a third party
unaffiliated with the disclosing party on an unrestricted basis; or
(e) is independently developed by employees or consultants of the
receiving party without the use or knowledge of any Confidential
Information of the disclosing party.
All Confidential Information disclosed by one party to the other under
this Agreement, insofar as practicable, shall ultimately be in writing and bear
a legend "Company Proprietary", "Company Confidential" or words of similar
import. Accordingly, all Confidential Information disclosed in any manner other
than writing shall, insofar as practicable, be preceded by an oral statement
indicating that the information is Company proprietary or confidential, and
shall be followed by transmittal of a reasonably detailed written summary of the
information provided to the receiving party with identification as Confidential
Information designated as above within thirty (30) days.
"Design Qualification" means the satisfactory electrical, mechanical,
stress and life-testing of selected test vehicle for tantalum capacitors. The
criteria for evaluating these lots will include that listed in Appendix B.
"Design Specification" means the complete electrical, chemical, mechanical
shape (including terminal locations) and other specifications, taken as a whole,
developed and delivered to Medtronic for a WGL Capacitors under this Agreement.
"Exclusive Field of Use" means implantable and external medical devices,
including without limitation portable electrically active medical devices used
in connection with any cardiovascular systems of the human body.
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"Intellectual Property" means letters patent and patent applications;
trademarks, service marks and registrations thereof and applications therefore;
copyrights and copyright registrations and applications; inventions, formulas,
drawings, designs, models, computer programs and software; and all license
rights in or to any of the foregoing.
"MEDTRONIC" means MEDTRONIC, INC. and its Affiliates.
"MEDTRONIC Products" means any products designed and/or manufactured by
MEDTRONIC, which incorporates the WGL Capacitor, which is intended for
commercial sale in the Exclusive Field of Use.
"WGL" means WGL and its Affiliates.
"Phase" means the stages of development between the major milestones as
specified in a Statement of Work.
"Prototype" means a prototype WGL Capacitor supplied to MEDTRONIC for
evaluation purposes. Prototypes will be supplied at the quantities listed in
Appendix A and shall be included as deliverables under Phase I.
"Statement of Work" means the mutually agreed upon and written description
of the development process for a Prototype and shall include a description of
each Phase and a designation of the parties' respective responsibilities for the
performance of such Phases including a schedule of payments and such other
details as the pasties may agree in writing. The Statement of Work for Phase I
is attached as Appendix A.
"WGL Capacitor" means a tantalum capacitor developed specifically for
Medtronic under the terms and conditions set forth in this Agreement.
ARTICLE 2
DEVELOPMENT
2.1) Statement of Work.
(a) Development will be conducted under this Agreement in two
Phases. Appendix A contains the Statement of Work for Phase I and the
deliverables due under Phase I. MEDTRONIC and WGL will use reasonable
efforts to perform their respective activities under the agreed upon
Phases of development within the timeframes and budget specified in the
Statement of Work and an accordance with the general allocation of roles
and responsibilities applicable to each party as set forth in the
Statement of Work. Any changes to the Statement of Work and the allocation
of roles and responsibilities will require mutual written agreement by the
parties.
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b) If the scope of any mutually agreed upon development project
changes so as to materially change the costs or length of time necessary
to complete any Phase, the parties shall negotiate in good faith to adjust
the Statement of Work, prospective schedules and budgets included therein
accordingly. The parties shall cooperate in good faith to minimize
development costs to the extent reasonably practical.
(c) The parties shall periodically but no less than quarterly
provide each other with a report setting forth a summary of the work
performed by that party under the current Phase.
2.2) Phase I.
(a) During Phase I, WGL will provide Prototypes for the evaluation
of WGL tantalum capacitor technology. WGL Tantalum capacitor performance,
reliability and life test data and reports will be provided to MEDTRONIC
to supplement this evaluation. WGL will also provide engineering support
and otherwise assist MEDTRONIC as needed and agreed to by WGL in the
development of a Tantalum capacitor Design Specification. The Prototypes
supplied under Phase I may not necessarily represent the final shape or
size of the WGL Capacitors which will ultimately be used in Medtronic
Products. Prototypes provided under Phase I will be used to test and
assess the long term performance of the WGL Capacitors which must meet
specified Design Qualification requirements. WGL will arrange for
MEDTRONIC's reasonable access to WGL's technical employees and
non-production facilities for the purposes of discussing, reviewing and
understanding the technology, design and manufacturing process and of
evaluating Prototypes under Phase I. Prototypes will be supplied by WGL in
the quantities listed in the Statement of Work.
(b) During Phase I, MEDTRONIC will evaluate and assess the
performance characteristics of Prototypes including but not limited to:
(a) life testing, (b) stability, (c) reliability, (d) consistency, (e)
manufacturing reproducibility, (f) yield performance and (g) all
applicable physical and electrical attributes. At the conclusion of Phase
I, MEDTRONIC shall have the option, in its discretion, to continue further
development under Phase II. If MEDTRONIC elects not to proceed with
further development, this Agreement shall automatically terminate, subject
to the provisions of Section 6.3 and the other sections of this Agreement
referred to therein. In addition, Medtronic shall be entitled to exclusive
rights to purchase the exact mechanical design (including termination) of
the design specification for the WGL Capacitor for three (3) years from
date of this agreement.
2.3) Phase II.
(a) If MEDTRONIC elects, in its sole discretion, to continue
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development under Phase II, WGL will assist MEDTRONIC in incorporating and
integrating the WGL Capacitor, into a Medtronic Product. The milestone for
Phase II will require the delivery by way of custom designed WGL
Capacitors which will meet Design Qualification requirements and be of
implantable grade. WGL will provide Medtronic with long term test data
which will be used to determine whether the Design Specification and
Prototypes meet the agreed upon specifications.
(b) If MEDTRONIC elects to continue development under Phase II,
the parties will mutually agree to a Statement of Work for Phase II
which includes the respective responsibilities of the parties, target
dates for achievement of established milestones, a budget showing
estimated costs to be incurred.
2.4) Access to Technical Data. WGL will provide MEDTRONIC with reasonable
access to all WGL's technical data, design libraries, mask works, reliability
and life testing data and such other technical data and processes sufficient to
allow MEDTRONIC to conduct its evaluation and as appropriate to incorporate the
WGL Capacitors into Medtronic Products. All information provided by WGL to
Medtronic or by Medtronic to WGL will remain the sole property of its provider
as stated in Article 7, paragraph 2.
ARTICLE 3
PAYMENTS
3.1) Payments. MEDTRONIC will make payments to WGL/ pursuant to the
following terms and schedule:
(a) Under Phase I, Medtronic shall pay WGL * which will be paid in
accordance with the schedule set forth in Appendix A.
(b) If, at the conclusion of Phase I, MEDTRONIC elects to proceed
with Phase II of the development MEDTRONIC shall pay WGL * pursuant to the
budget and schedule agreed upon by the Parties.
ARTICLE 4
SUPPLY OF CAPACITORS
4.1) Upon MEDTRONIC's acceptance of WGL Capacitors developed during Phase
One and Two, WGL will supply WGL Capacitors to MFDTRONIC which meet the agreed
upon specifications pursuant to a definitive supply agreement, which will be
negotiated by Medtronic and WGL during Phase II and executed by the Parties upon
Medtronic's acceptance of the Phase II WGL Capacitors. The supply agreement
negotiated in Phase II will (a) require Medtronic to purchase its entire annual
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requirements for tantalum capacitors from WGL, (b) will be similar in form and
content to the supply agreements for silver vanadium oxide batteries currently
in effect between WGL and Medtronic and (c) will contain the usual and customary
provisions typical in supply agreements of this type, except the parties agree
the supply agreement will not include excluding language related to license of
technology, provisions for purchase quotas, manufacturing fees, minimum purchase
requirements, or advance fees to maintain inventory. The parties do not
anticipate the agreement will include any license to Medtronic of WGL
intellectual property except to the extent such rights to Intellectual Property
are required in order to permit Medtronic to incorporate the WGL Capacitor into
Medtronic Product for sale and distribution, and other information specific to
the design or manufacture of non-capacitor technology. Pricing for WGL
Capacitors will be as stated in the Price List attached as Appendix C.
4.2) MEDTRONIC Exclusivity. WGL will not, without the prior written
consent of MEDTRONIC, supply, sell, transfer or otherwise dispose of capacitors
to any third party for use in the Exclusive Field of Use that have
specifications that are identical to the mechanical portion (including the
terminal locations) of the Design Specifications for any WGL Capacitor developed
by WGL for Medtronic under this Agreement.
4.3) MEDTRONIC will be responsible for submitting documentation with
appropriate Regulatory authorities. WGL agrees that it will cooperate with
MEDTRONIC as necessary in the application process to assist in obtaining
appropriate regulatory approval.
4.4) WGL acknowledges that maintaining continuity of supply once the WGL
Capacitors have been incorporated into a Medtronic product is of critical
importance. Therefore, effective beginning on the date Medtronic issues its
first non cancelable Purchase Order for WGL Capacitors which has been accepted
by WGL, at anytime thereafter WGL determines it wishes to exit the business of
manufacturing tantalum capacitors, for any reason, it will first provide
Medtronic with a 24 month written notice of WGL's intent to exit the tantalum
capacitor business. During the 24 month notice period, Medtronic shall be
permitted to purchase its required volume of WGL Capacitors at the then current
price therefore. At the end of the 24 month notice period, Medtronic shall be
permitted a last time buy sufficient to cover an additional 12 month period at
the then existing purchase volumes of WGL Capacitors, at the then current price
therefore; provided however, that WGL shall not be required to provide WGL
Capacitors to Medtronic pursuant to this provision in an amount or with lead
times or delivery schedules different in any material way from the number, lead
times and delivery schedule over the prior 12 months immediately prior to its 24
month notice.
4.5) Effective beginning on the date that Medtronic issues its first non
cancelable Purchase Order for WGL Capacitors which has been accepted by WGL, in
the event the business of WGL is sold or purchased in part or in whole by a
third party, but excluding, however (A) any public offering of stock and (B) any
private placement of stock not involving the acquisition of 50% or more of the
outstanding voting securities (on a fully-diluted basis) by WGL or the parent
company of WGL, then WGL shall
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ensure that any such sale or purchase of its business by a third party buyer
("Buyer") is contingent upon the Buyer of WGL's business maintaining continued
supply of WGL Capacitors to Medtronic pursuant to the terms and subject to the
conditions of this Section 4.5. In that regard, WGL shall ensure that any such
Buyer will be required to supply WGL Capacitors to Medtronic in accordance with
the following provisions: (a) the prices and other terms and conditions of sale
set forth in the definitive supply agreement contemplated by Section 4.1,
including any price increases permitted thereby, shall continue to apply to all
WGL Capacitors sold to Medtronic; (b) if at any time after this Section 4.5
becomes applicable a Buyer determines that it wishes either (i) to terminate its
sales of WGL Capacitors to Medtronic or (ii) to exit the business of
manufacturing tantalum capacitors, for any reason ("Termination Decision"), then
it will first provide Medtronic with a 36 month written notice of such
Termination Decision; and (c) WGL or such buyer shall not be required to provide
WGL Capacitors to Medtronic pursuant to this Section 4.5 in any amount or with
lead times or delivery schedules different in any material way from the number,
lead times and delivery schedule over the prior 12 months immediately prior to
its Termination Decision notice. Following such 36 month notice period,
Medtronic shall be permitted to continue to purchase its required volume of WGLS
Capacitors for an additional period of 24 months. At the end of the 24 month
period, Medtronic shall be permitted a last time buy sufficient to cover an
additional 12 month period at the then existing purchase volumes of WGL
Capacitors. The definitive supply agreement contemplated by Section 4.1 shall
include provisions consistent with this Section 4.5.
ARTICLE 5
INTELLECTUAL PROPERTY
5.1) Ownership of Inventions. All Intellectual Property of MEDTRONIC
existing on the Effective Date, any Inventions developed solely by employees of,
or non-WGL consultants working for, MEDTRONIC in the course of any Statement of
Work, shall be and remain the property of MEDTRONIC and WGL shall not acquire
any rights therein. Except for the rights granted to MEDTRONIC herein, all
Intellectual Property of WGL existing on the Effective Date, and any Inventions
developed solely by employees of, or consultant, working for, WGL in the course
of any Statement of Work, shall be the property of WGL, and MEDTRONIC, shall not
acquire any rights therein.
5.2) No Assurance. Neither WGL nor MEDTRONIC make any representation or
warranty that a WGL Capacitor suitable for use in implantable products can or
will be developed satisfactorily for sale. MEDTRONIC will engage in such
research, development, marketing and sales activities concerning capacitors as
MEDTRONIC deems appropriate in its sole commercial judgment. WGL, and MEDTRONIC
acknowledge that MEDTRONIC and its Affiliates are and will continue to be
engaged in developing and exploiting technologies, processes and products which
are similar to or competitive with WGL's products; nothing herein will limit
MEDTRONIC or its Affiliates from continuing to develop or exploit for
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MEDTRONIC's benefit such technologies, processes or products without obligation
to WGL except as set forth herein.
ARTICLE 6
TERMINATION
6.1. MEDTRONIC Option to Terminate.
(a) Evaluation/Development Plan. MEDTRONIC may terminate this
Agreement at any time in its discretion during Phases I and II. If
MEDTRONIC elects to terminate the development at the conclusion of Phase I
or II MEDTRONIC will be only obligated to pay for WGL's assistance as
provided for herein prior and the payments otherwise due up to the date of
termination. In addition, Meditronic shall be entitled to exclusive rights
to purchase the exact mechanical design (including termination) of the
design specification for the WGL Capacitor for three (3) years from date
of this agreement.
6.2) Termination. Notwithstanding the provisions of Section 6.1 above,
this Agreement may be terminated in its entirety (including all uncompleted
Statements of Work) or with respect to any one or more specified Statements of
Work in accordance with the following provisions:
(a) by written notice from WGL to MEDTRONIC in the event of (i) a
breach of any material term of this Agreement by MEDTRONIC that is not
cured within ninety (90) calendar days after receipt by MEDTRONIC of
written notice from WGL specifying the nature of and basis for the
asserted breach, provided that if such breach cannot reasonably be cured
within ninety (90) days, such breach shall be deemed cured if MEDTRONIC
commences to cure such breach within such ninety (90) day period and
diligently thereafter prosecutes such cure, or (ii) the commencement by or
against MEDTRONIC of any bankruptcy, insolvency or reorganization
proceeding which has not been dismissed within ninety (90) days after
commencement;
(b) by WGL for nonpayment by Medtronic of any amounts due under this
Agreement after 10 days written notice from WGL.
(c) by written notice from MEDTRONIC to WGL in the event of (i) a
breach of any material term of this Agreement by WGL that is not cured
within ninety (90) calendar days after receipt by WGL of written notice
from MEDTRONIC specifying the nature of and basis for the assorted breach,
provided that if such breach cannot reasonably be cured within ninety (90)
days, such breach shall be deemed cured if WGL commences to cure such
breach within such ninety (90) day period and diligently prosecutes such
cure, or (ii) the commencement by or against WGL of any bankruptcy,
insolvency or
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reorganization proceeding which has not been dismissed within ninety (90)
days after commencement.
(d) by written notice from either party to the other party (which
notice shall be effective upon dispatch), in the event that such other
party becomes insolvent, makes assignment for the benefit of creditors,
goes into liquidation or receivership or otherwise loses legal control of
its business: or
(e) by written notice from either party to the other party should
such other party's performance be suspended by an event of Force Majeure
for more than one hundred eighty (180) consecutive days.
6.3) Rights and Obligations on Termination. In the event of termination of
this Agreement in its entirety or with respect to any one or more specified
Statements of Work for any reason, the parties shall have the following rights
and obligations:
(a) Termination shall not release either party from the obligation
to make payment of all amounts due and payable with respect to work
performed and the deliverables otherwise, due prior to such termination;
(b) Upon termination of this Agreement and all Statements of Work
hereunder, each party will within thirty (30) days return to the other all
tangible Confidential Information of the other party (except one copy
which may be retained by legal counsel solely for evidentiary purposes in
the event of a dispute), and each party will deliver to the other a copy
of any documentation in its possession or control; and
(c) in addition to the foregoing, the provisions of Articles 5,7 and
8 (and any definitions related thereto set forth in Article 1) shall
survive the termination of this Agreement for any reason whatsoever.
ARTICLE 7
CONFIDENTIALITY
7.1) Protection of Confidential Information. Each party acknowledges that
the other party claims its trade secrets and other Confidential Information as
special, valuable and unique assets. During the Restricted Period, for itself
and on behalf of its officers, directors, agents and employees, each party
agrees to the following;
(a) Each receiving party will not disclose Confidential Information
to any third party or disclose to an employee unless such third party or
employee has a need to know such Confidential Information in order to
enable the disclosing party to exercise its rights or perform its
obligations under this Agreement. Each party will use the Confidential
Information of the other party only for the purposes of exercising its
rights or fulfilling its obligations under this Agreement and will not
otherwise use it for its own benefit. In no event shall the receiving
party use less than the same degree of care to protect the Confidential
Information
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as it would employ with respect to its own information of like importance
which it does not desire to have published or disseminated.
(b) If the receiving party faces legal action or is subject to legal
proceedings requiring disclosure of Confidential Information, then, prior
to disclosing any such Confidential Information, the receiving party shall
promptly notify the disclosing party and, upon the disclosing party's
request, shall cooperate with the disclosing party in contesting such
request.
(c) For purposes hereof, the term "Restricted Period" means (i) in
the case of the trade secrets of a disclosing party, in perpetuity,
subject to the exceptions contained in the definition of Confidential
Information contained in Article 1 and (ii) in the case of other
Confidential Information of a disclosing party, during the term of this
Agreement and for six (6) subject to the defined exceptions.
7.2) Return of Confidential Information. All information furnished under
this Agreement shall remain the property of the disclosing party and shall be
returned to it or destroyed or purged promptly at the request of the disclosing
party upon termination of this Agreement provided, however, that either party
may retain Confidential Information as reasonably necessary to fulfill its
obligations under this Agreement or any executed supply agreement for the supply
of WGL Capacitors and (b) retain a copy of the Confidential Information for
evidentiary purposes only. All other documentation, memoranda, notes and other
tangible embodiments whatsoever prepared by the receiving party based on or
which includes Confidential Information shall by destroyed to the extent
necessary to remove all such Confidential Information upon the disclosing
party's request. Upon request, an authorized officer of the receiving party
shall confirm all destruction required pursuant to this Section in writing to
the disclosing party.
7.3) Public Announcements. Notwithstanding anything to the contrary
contained in this Agreement, neither party may initiate or make any public
announcement or other disclosure concerning the terms and conditions of the
subject matter of this Agreement to any third party without the prior written
approval of the other party except as may be required by law or regulatory
agency.
ARTICLE 8
ALTERNATIVE DISPUTE RESOLUTION
8.1) Arbitration. Except as set forth in Section 8.3, all claims,
disputes, controversies, and other matters in question arising out of or
relating to this Agreement or to an alleged breach thereof shall be settled by
arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association.
8.2) Procedural Matters.
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(a) Any arbitration shall be conducted in Minneapolis, Minnesota if
requested by WGL and in Buffalo, New York if requested by Medtronic. In
any dispute involving a claim in excess of $100,000, three arbitrators
shall be employed. Absent a showing of good cause, the hearing shall be
conducted within ninety (90) days from the service of the statement of
claim. All proceedings shall be governed by the Federal Arbitration Act.
(b) Each party shall bear the expense of its own attorneys, experts
and out of pocket costs as well as fifty percent (50%) of the expense of
administration and arbitrator fees.
(c) The parties hereby WAIVE THE RIGHT TO SEEK OR RECEIVE
CONSEQUENTIAL OR PUNITIVE DAMAGES unless the arbitrator(s) or a court of
competent jurisdiction determines that this limitation, under the
circumstances, is unconscionable or violates public policy.
(d) Deposition, other than those taken in lieu of live testimony,
shall not be taken except upon the arbitrator(s) finding of special need.
Parties shall be entitled to conduct document discovery in accordance with
a procedure where responses to information request shall be made within
twenty (20) days from their receipt.
8.3) Injunctive Relief. Either party shall be entitled to pursue
injunctive and other remedies for emergency judicial relief in any court of
competent jurisdiction, including but not limited to an action to enforce
Sections 4.4 and 4.5, Articles 5 and 7, except that immediately following the
preliminary adjudication of such request for emergency relief, the parties
hereby consent to a stay of the judicial proceedings pending a determination of
the dispute on the merits by arbitration as herein provided. WGL expressly
agrees that if the provisions of Section 4.4 or 4.5 are breached, Medtronic may
suffer irreparable harm and that Medtronic shall be entitled to seek injunctive
or other appropriate equitable relief to prevent any such breach or harm.
ARTICLE 9
OTHER PROVISIONS
9.1) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the successors or permitted
assigns of the parties hereto. The rights and obligations of WGL herein may not
be assigned. The rights and obligations of WGL and MEDTRONIC herein may not be
assigned except to an Affiliate of WGL or MEDTRONIC, as the case may be, or to
any person who succeeds to substantially all of that portion of WGL's or
MEDTRONIC's business to which this Agreement relates.
9.2) Complete Agreement. Any Appendices to this Agreement shall be
construed as an integral part of this Agreement to the same extent as if they
had been set
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forth verbatim herein. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
previous proposals or agreements, oral or written, and all negotiations,
Conversations or discussions heretofore had between the parties related to the
subject matter of such agreements.
9.3) Waiver, Discharge, Amendment, Etc. The failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part thereof or the right of the party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to be a waiver of any other or subsequent breach.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated, nor may any waiver, permit, consent or approval of any kind or
character on the part of any party be effective against such party, other than
by a written instrument signed by the party against whom enforcement of such
amendment, waiver, discharge, termination, permit, consent or approval is sought
and expressly stating the extent to which such instrument shall be an amendment,
waiver, discharge, termination, permit, consent or approval relating to this
Agreement.
9.4) Notices. All notices or other communications to a party required or
permitted hereunder shall be in writing in the English language and shall be
delivered personally or by telecopy to such party (or, in the case of an entity,
to an executive officer of such party) or shall be given by certified mail,
postage prepaid with return receipt requested, addressed as follows:
if to MEDTRONIC to:
Medtronic, Inc.
Corporate Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy Number: (612)
if to WGL, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Ltd.
10,000 ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change the above specified recipient and/or mailing address
by notice to all other parties given in the manner herein prescribed. All
notices shall be
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deemed given on the day when actually delivered as provided above (if delivered
personally or by telecopy) or on the day shown on the return receipt (if
delivered by mail).
9.5) Public Announcement. In the event any party proposes to issue any
press release or public announcement concerning any provisions of this Agreement
or the transactions contemplated hereby, such party shall so advise the other
parties hereto, and the parties shall thereafter use all reasonable efforts to
cause a mutually agreeable release or announcement to be issued. Except as
otherwise required by law or applicable stock exchange regulations, neither
party will publicly or privately disclose or divulge other than to its employees
(who shall be required to hold such information in confidence) any provisions of
this Agreement or the transactions contemplated hereby without the other party's
written consent.
9.6) Expenses. Each party hereto shall pay its own expenses incident to
the negotiations and preparation of this Agreement and the consummation of the
transactions provided for herein.
9.7) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Minnesota, United States of America,
including all matters of construction, validity, performance and enforcement,
without giving effect to principles of conflict of laws.
9.8) Titles and Headings; Construction. Titles and headings to Sections
herein are inserted for convenience of reference only and are not intended to
affect the meaning or interpretation of this Agreement This Agreement shall be
construed without regard to any presumption or other rule requiring construction
hereof against the party causing this Agreement to be drafted.
9.9) Benefit Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties hereto or their respective
permitted successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.10) Independent Contractors. The parties hereto are independent
contractors and nothing contained in this Agreement shall be deemed or construed
to create the relationship of a partnership or joint venture or of any
association or relationship between the parties. MEDTRONIC and WGL acknowledge
that, except as expressly provided in this Agreement they do not have the
authority to make and shall not make any representation to any third party,
either directly or indirectly, indicating that they have the authority to act
for or on behalf of the other party or to obligate the other party in any manner
whatsoever.
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9.11) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed as original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in the manner appropriate for each, as of the day and year first above
written.
MEDTRONIC, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LTD.
By By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- --------------------------------------
Title Title Group Vice President
------------------------------ -----------------------------------
Date: Date: April 12, 2000
------------------------------ -----------------------------------
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