UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-17019
ANGEION CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 41-1579150
(State of Incorporation) (IRS Employer Identification No.)
7601 Northland Drive, Brooklyn Park, MN 55428-1088
(Address of principal (Zip Code)
executive offices)
(612) 315-2000
(Telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES _X_ NO ___
Common stock, par value $.01 per share: 4,009,659 shares
outstanding as of August 12, 1999
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
Item No. Item
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3.1 Articles of Merger, including Amended and Restated
Articles of Incorporation (incorporated by reference to
Exhibit 3A contained in the Company's Registration
Statement on Form 8-A (File No. 0-17019)).
3.2 Amendment to the Company's Amended and Restated Articles
of Incorporation (incorporated by reference to Exhibit
4.3 contained in the Company's Registration Statement on
Form S-3 (File No. 333-36005)).
3.3 Amendment to the Company's Amended and Restated Articles
of Incorporation (incorporated by reference to Exhibit
4.4 to the Company's Registration Statement on Form S-3
(File No. 333-50557)).
3.4 Amended Bylaws (incorporated by reference to Exhibit 4.2
contained in the Company's Registration Statement on
Form S-3 (File No. 333-04993)).
4.1 Warrant dated as of March 12, 1999 in the name of
Synthelabo to purchase 9,090,171 shares of Common Stock.
4.2 Warrant dated as of March 12, 1999 in the name of
Synthelabo to purchase 5,405,405 shares of Common Stock.
10.1 Letter Amendment dated as of March 12, 1999 to the
Amended and Restated Investment and Master Strategic
Relationship Agreement dated as of October 9, 1997
between the Company and Synthelabo.
10.2 Withdrawal Agreement dated as of May 11, 1999 by and
between the Company and ELA Medical, Inc.
10.3 Amendment and Termination of Implantable Cardioverter
Defibrillator Product Manufacturing and Supply Agreement
dated as of May 11, 1999 by and between the Company and
ELA* Angeion, LLC.
10.4 Amendment of Implantable Cardioverter Defibrillator
Product Manufacturing and Supply Agreement dated May 11,
1999 by and between the Company and ELA Medical, S. A.
10.5 Amendment to Investment and Master Strategic
Relationship Agreement dated as of May 11, 1999 between
the Company and Synthelabo
10.6 Settlement Agreement and Mutual Release dated as of May
11, 1999 by and between the Company, ELA Medical, Inc.,
and ELA Medical, S. A.
12 Computation of ratio of earnings to fixed charges.
27 Financial Data Schedule.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGEION CORPORATION
Dated: October 6, 1999 By: /s/ James B. Hickey, Jr.
----------------------------------------
James B. Hickey, Jr.
President and Chief Executive Officer
(principal executive officer and acting
principal financial officer)
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EXHIBIT INDEX
Exhibit Description of Document Method of Filing
------- ----------------------- ----------------
3.1 Articles of Merger, including Amended and Incorporated by
Restated Articles of Incorporation Reference
(incorporated by reference to Exhibit 3A
contained in the Company's Registration
Statement on Form 8-A (File No. 0-17019)).
3.2 Amendment to the Company's Amended and Incorporated by
Restated Articles of Incorporation Reference
(incorporated by reference to Exhibit 4.3
contained in the Company's Registration
Statement on Form S-3 (File No. 333-36005)).
3.3 Amendment to the Company's Amended and Incorporated by
Restated Articles of Incorporation Reference
(incorporated by reference to Exhibit 4.4 to
the Company's Registration Statement on Form
S-3 (File No. 333-50557)).
3.4 Amended Bylaws (incorporated by reference to Incorporated by
Exhibit 4.2 contained in the Company's Reference
Registration Statement on Form S-3 (File No.
333-04993)).
4.1 Warrant dated as of March 12, 1999 in the Previously Filed
name of Synthelabo to purchase 9,090,171
shares of Common Stock.
4.2 Warrant dated as of March 12, 1999 in the Previously Filed
name of Synthelabo to purchase 5,405,405
shares of Common Stock.
10.1 Letter Amendment dated as of March 12, 1999 Previously Filed
to the Amended and Restated Investment and
Master Strategic Relationship Agreement
dated as of October 9, 1997 between the
Company and Synthelabo.
10.2 Withdrawal Agreement dated as of May 11, Filed herewith
1999 by and between the Company and ELA
Medical, Inc.
10.3 Amendment and Termination of Implantable Filed herewith
Cardioverter Defibrillator Product
Manufacturing and Supply Agreement dated as
of May 11, 1999 by and between the Company
and ELA* Angeion, LLC.
10.4 Amendment of Implantable Cardioverter Filed herewith
Defibrillator Product Manufacturing and
Supply Agreement dated May 11, 1999 by and
between the Company and ELA Medical, S. A.
10.5 Amendment to Investment and Master Strategic Filed herewith
Relationship Agreement dated as of May 11,
1999 between the Company and Synthelabo
10.6 Settlement Agreement and Mutual Release Filed herewith
dated as of May 11, 1999 by and between the
Company, ELA Medical, Inc., and ELA Medical,
S. A.
12 Computation of ratio of earnings to fixed Previously Filed
charges.
27 Financial Data Schedule. Previously Filed
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EXHIBIT 10.2
WITHDRAWAL AGREEMENT
THIS WITHDRAWAL AGREEMENT is entered into this 11th day of May, 1999
by and between Angeion Corporation, a Minnesota corporation ("Angeion"), and ELA
Medical, Inc., a Delaware corporation ("ELA").
RECITALS
WHEREAS, Angeion and ELA entered into a joint venture to market and
sell cardiac stimulation and related devices manufactured by ELA and Angeion in
the United States (the "Business").
WHEREAS, in connection with the joint venture, Angeion and ELA
formed ELA*Angeion LLC (formerly known as Angellan Medical Systems, LLC), a
Delaware limited liability company (the "Company") by entering into the Limited
Liability Company Operating Agreement of Angellan Medical Systems, LLC dated
December 9, 1997 (the "Operating Agreement"; capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Operating
Agreement).
WHEREAS, Angeion and ELA now wish to terminate their joint venture.
WHEREAS, in connection with the termination of the joint venture,
Angeion and ELA have agreed that, subject to the terms and conditions set forth
herein, ELA shall assume certain obligations of Angeion, and Angeion shall
withdraw from the Company.
NOW, THEREFORE, in consideration of the mutual premises set forth
herein and other good and valuable consideration, the parties hereto hereby
agree as follows:
ARTICLE I
WITHDRAWAL OF ANGEION
1.1 Members Consent. Angeion and ELA hereby consent, in accordance
with the provisions of Section 14.1(a)(ii) of the Operating Agreement, to the
withdrawal of Angeion as a Member of the Company effective as of the Closing
Date (as hereinafter defined). The parties hereby agree that, as of the Closing
Date and notwithstanding any provisions of Section 14.3 of the Operating
Agreement, Angeion (i) shall withdraw from the Company, (ii) shall no longer be
a Member of the Company, (iii) shall no longer be a party to the Operating
Agreement and (iv) shall not be entitled to the benefits, or be bound by the
provisions, thereof; provided, however, that, not withstanding the provisions of
Section 17.3 of the Operating Agreement, Angeion and ELA shall continue to be
bound by the provisions of Articles I, IX, XV and XVII
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and Sections 6.1 and 6.4, Section 10.3(a) to 10.3(d), Section 11.2, Section 14.7
and Section 16.1 of the Operating Agreement to the extent such provisions are
not superceded by Section 1.2 of this Agreement.
1.2 Further Agreements for the Operating Agreement. Notwithstanding
the provisions of the Operating Agreement, including, without limitation,
Sections 8.2, 9.1, 9.10, 11.3, 11.4, 11.5, 14.4 and 14.6 thereof, all of which
Angeion and ELA hereby waive, Angeion and ELA hereby agree as follows:
(a) As of the Closing Date, ELA shall assume sole
responsibility, without recourse to Angeion, its successors or assigns for
financing the operations of the Company. From and after the Closing Date,
Angeion shall have no further present or future obligation to make any Capital
Contributions to the Company, including, without limitation, any obligation to
pay any Capital Contributions previously due, if any. Angeion further agrees and
acknowledges that it shall not be entitled to any return of its Capital
Contributions.
(b) As of the date hereof, the Percentage Interests of Angeion
and ELA in the Company shall be 0% and 100%, respectively.
(c) As of April 1, 1999, ELA is designated to serve as the
"tax matters partner" pursuant to Section 9.10 of the Operating Agreement.
(d) As of the Closing Date, any and all Company Trademarks
shall be the sole property of the Company and, notwithstanding the provisions of
Section 11.3, the Company shall have no obligation to abandon such trademarks
upon dissolution, and ELA shall have the right to use such Company Trademarks as
it sees fit for any use or activity.
(e) As of the Closing Date, any and all patents and patent
applications filed on behalf of the Company shall be the sole property of the
Company and, notwithstanding the provisions of Section 11.4(b) of the Operating
Agreement, the Company shall have no obligation to assign any of such patents or
patent applications to Angeion upon dissolution and such patents and patent
applications may be assigned in their entirety upon dissolution to ELA.
(f) As of the Closing Date, any and all Published Works
prepared by the Company shall be the sole property of the Company and,
notwithstanding the provisions of Section 11.5 of the Operating Agreement, the
Company shall have no obligation to assign such Published Works to Angeion and
such Published Works may be assigned in their entirety upon dissolution to ELA.
(g) Within thirty (30) days following the Closing Date,
Angeion shall deliver to the Company the originals of all books, records and
files of the Company maintained by Angeion, provided that Angeion shall be
entitled to keep a copy thereof for archival purposes.
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(h) Angeion hereby acknowledges and agrees that, in the event
that ELA elects to liquidate and dissolve the Company pursuant to the provisions
of the Delaware Act, Angeion shall not receive any distribution pursuant to
Section 14.4 of the Operating Agreement or pursuant to the provisions of the
Delaware Act, or any return of its Capital Contribution pursuant to the
provisions of the Delaware Act or the Operating Agreement.
1.3 Paravant Agreements. ELA hereby agrees to assume, as of April 1,
1999, any and all of Angeion's obligations and liabilities with respect to
Angeion's guaranty of the Company's performance of the Supply Agreement dated
January, 1999 by and among the Company, Angeion, ELA and Paravant Computer
Systems, Inc. ("Paravant") and the Development Agreements dated January, 1999 by
and among the Company, Angeion and ELA and Paravant (collectively, the "Paravant
Agreements").
1.4 Indemnification of Angeion. ELA hereby agrees to indemnify and
hold Angeion harmless from and against any liability, loss, damage or expense
that Angeion, its successors or permitted assigns may incur as a result of,
based on or arising from:
(a) the liabilities and obligations of the Company reflected
on the balance sheet of the Company as at March 31, 1999;
(b) all other liabilities and obligations of the Company, and
any claims or disputes relating thereto, whether existing as of the Closing Date
or arising thereafter, fixed or contingent, known or unknown, asserted or
unasserted, to the extent that such liabilities or obligations relate to, are
based on or arise from the conduct of the Business by the Company from and after
April 1, 1999, excluding, however, any and all Third Party Claims asserted by or
on behalf of a patient arising out of or relating to any Product supplied to the
Company by Angeion under the Angeion Supply Agreement.
(c) the liability of Angeion with respect to its guaranty of
the Company's performance of the Paravant Agreements.
1.5 Angeion Supply Agreement. The parties hereby agree that, in
accordance with Section 10.1 of the Angeion Supply Agreement and with effect
from and after the Closing Date, the Angeion Supply Agreement shall be
terminated in accordance with the Amendment and Termination of the Implantable
Cardioverter Defibrillator Product Manufacturing and Supply Agreement between
Angeion and the Company attached hereto as Exhibit A (the "Amended and
Terminated Angeion Supply Agreement"). Angeion and ELA shall enter into an
Implantable Cardioverter Defibrillator Manufacturing and Supply Agreement with
respect to future ICD products of Angeion in the form attached hereto as Exhibit
B (the "New Supply Agreement"). To the extent that ELA purchases, receives as a
liquidating distribution or otherwise acquirers any Products from the Company,
Angeion hereby makes the representations,
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warranties and covenants set forth in Section 9.1(a) of the Angeion Supply
Agreement and agrees to indemnify ELA on the terms and subject to the conditions
set forth in Sections 9.3, 9.4, 9.5 and 9.9 of the Angeion Supply Agreement, the
provisions of Section 9.1(a), 9.3, 9.4, 9.5 and 9.9 of the Angeion Supply
Agreement being incorporated by reference herein and made a part hereof.
1.6 Assumption of Other Angeion Obligations. Subject to receiving
from Angeion a copy of the complete technical dossiers for such products and all
information and know how necessary to provide such service such dossiers and
information being limited to that information currently in Angeion's possession,
ELA or its Affiliates agrees to provide at its own expense full warranty
coverage, technical service and regulatory compliance services, for which
Angeion is currently responsible under (i) Applicable Law, (ii) the Angeion
Supply Agreement for products supplied to the Company and (iii) contracts with
third parties for model 2000 and 2010 series ICD products and associated leads
and programmers supplied to such third parties, and implanted in humans in the
United States (including associated programmers for such ICD models) whether
sold by ELA, the Company or Angeion, other than any and all such units implanted
or sold by St. Jude Medical, Inc.
(a) In the event Angeion does not agree with ELA's
determination that such Product is defective under Section 9.1(b), Angeion and
ELA may retain an appropriate expert to make such determination in accordance
with the provisions of Section 9.1(b) of the Angeion Supply Agreement.
(b) Angeion hereby grants to ELA a limited license to use such
technical information and know how contained in the technical dossier materials
for the purposes of providing the warranty, technical and regulatory compliance
services.
(c) Angeion shall lend to ELA, rent-free, at the expense of
Angeion for shipping from Angeion, a test system (the "Test System"), including
EDF board, emulator, load box, emulation tank, associated interconnect fixtures,
captive programmer, captive wand, ECG duplicating software and memory
decomposition software, required to perform the services undertaken by ELA or
its Affiliates, subject to Angeion's right to use such Test System if necessary
for warranty services, technical support or regulatory compliance on units
implanted in Argentina or by St. Jude.
1.7 Closing. The closing for this Agreement (the "Closing") shall
take place at the offices of the Faegre & Benson, LLP on May 11, 1999 (the
"Closing Date") and shall occur simultaneously with the execution of this
Agreement.
1.8 Deliveries.
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(a) Deliveries by Angeion. Angeion shall deliver to ELA at the
Closing the following:
(i) an executed counterpart of the Amended and
Terminated Angeion Supply Agreement;
(ii) an executed counterpart of the New Supply
Agreement; and
(iii) an executed counterpart of a Settlement Agreement
and Mutual Release in the form attached hereto as Exhibit E (the "Mutual
Release).
(b) Deliveries by ELA. ELA shall deliver to Angeion at the
Closing the following:
(i) an executed counterpart of the Amended and
Terminated Angeion Supply Agreement;
(ii) an executed counterpart of the New Supply
Agreement; and
(iii) an executed counterpart of the Mutual Release.
(c) Further Agreements. As soon as possible after the Closing
Date,
(i) ELA Medical S.A. and Angeion shall execute and
deliver an Amendment to the Implantable Cardioverter Defibrillator Product
Manufacturing and Supply Agreement between Angeion and Ela Medical s.a. in
the form attached hereto as Exhibit C (the "Ela Medical Supply Agreement
Amendment");
(ii) Synthelabo S.A. and Angeion shall execute and
deliver an Amendment to the Amended and Restated Master Strategic
Investment and Relationship Agreement dated as of October 9, 1997, between
Angeion and Synthelabo S.A. in the form attached hereto as Exhibit D (the
"Synthelabo Amendment");
(iii) Angeion and ELA Medical S.A. shall execute and
deliver the Escrow Agreement described in Section 3.1 hereof; and
(iv) ELA shall deliver evidence reasonably satisfactory
to Angeion that ELA has assumed the liabilities and obligations of Angeion
with respect to its guaranty of the Company's performance of Paravant
Agreements.
(d) Payments. On or before May 21, 1999, ELA or its Affiliates
shall pay by wire transfer or bank check the following amounts:
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(i) all past due amounts owing by the Company to
Angeion;
(ii) all past due amounts owing by ELA Medical S.A. to
Angeion; and
(iii) all amounts owing by ELA to Angeion with respect
to the Paravant Development Agreement, it being agreed and understood that
ELA shall also pay directly to Paravant the balance due to Paravent under
the Paravant Agreements.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of Angeion and ELA make the representations and warranties to
the other set forth in this Article II, each of which is true and correct as of
the date hereof and will be true and correct as of the Closing Date:
2.1 Organization; Authority. It is a corporation duly organized,
validly existing and in good standing in its jurisdiction of incorporation. It
has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on its part.
2.2 Binding Effect; Performance. This Agreement has been duly
executed and delivered on its behalf and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms. No
other corporate action on its part or its stockholders is necessary to authorize
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby.
2.3 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by it and the consummation of the transactions
contemplated hereby will not (i) violate or conflict with any provision of its
Certificate or Articles of Incorporation or By-Laws; (ii) violate or conflict
with, result in the breach of, constitute an event of default (or an event
which, with the lapse of time, or the giving of notice, or both, would
constitute an event of default) under, or result in the creation in any party of
any right to accelerate, modify, cancel or terminate, any contract or other
instrument to which it is a party, or by which it or any of its assets is bound,
or result in the creation of any encumbrance or other right of any third party
upon any of the Assets, (iii) violate or conflict with in any material respect
any law, rule, regulation, ordinance, code, judgment, order, writ, injunction or
decree of any court or any governmental body or agency thereof of any
jurisdiction to which it or any of its
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assets may be subject; or (iv) require any material registration, declaration or
filing with, or material permit, license, exemption, order, franchise, approval,
consent or other authorization of, or the giving of notice to, any governmental
or regulatory body, agency or authority.
ARTICLE III
POST-CLOSING COVENANTS
3.1 Product Liability Insurance. Angeion hereby agrees to maintain
in full force and effect at its expense for a period of five (5) years from and
after the Closing Date product liability insurance with limits of liability at
least as high as those currently in place and with the current carrier or such
other carrier as ELA may reasonably approve, subject to availability on
commercially reasonable terms. Each such policy shall provide for not less than
thirty (30) days' prior written notice to ELA of the exercise of any right of
cancellation or the failure of Angeion to renew any such policy during the
five-year period following the Closing Date. Angeion shall provide ELA with
copies of certificates of insurance evidencing compliance with this Section as
soon as practicable after the Closing Date and within thirty (30) days after the
expiration of each policy during the five-year period following the Closing
Date. Angeion and ELA agree that, of the amounts payable by ELA Medical S.A.
with respect to the Units to be shipped in accordance with Exhibit C hereto, an
aggregate amount of $800,000 shall be paid by ELA Medical S.A. into an escrow
account (the "Escrow Account'), such amount to be paid from amounts due and
owing by ELA Medical S.A. to Angeion in the amount of 50% of each invoice until
such time as the sum in the Escrow Account aggregates $800,000. The Escrow
Account shall be established by ELA, Angeion and a mutually acceptable escrow
agent (the "Escrow Agent") pursuant to the terms of an escrow agreement to be
entered into among Angeion, ELA and the Escrow Agent (the "Escrow Agreement")
which shall provide that the Escrow Agent shall only distribute amounts in the
Escrow Account for the payment of premiums for such product liability insurance.
It is hereby agreed that any residual amounts remaining in the Escrow Account
after the payment in full of premium for the product liability insurance
coverage for the five-year period following the Closing Date (either by means of
a prepayment in full or annual payments during such five-year period) shall be
reimbursed to Angeion.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Amendment. This Agreement may not be amended except by a written
instrument signed by each of the parties hereto.
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4.2 Indemnification Procedures. If Angeion or ELA seeks
indemnification hereunder for a matter that involves a claim by a third party,
the party seeking indemnification (an "Indemnitee") shall promptly notify the
indemnifying party (the "Indemnitor") of and shall provide reasonable
information and details concerning the nature of such claim. Indemnitor shall,
to the extent applicable, have the right to assume the defense at its expense of
all third party claims and shall pay all costs and damages finally awarded
against the Indemnitor and the Indemnitee in conjunction with such third party
claims, provided that (i) the Indemnitee provides prompt written notice to the
Indemnitor of its receipt of service of any such claim; (ii) the Indemnitor
controls the defense of the third party claim on behalf of all Parties; (iii)
the Indemnitee consents to representation in such claims by counsel selected by
and representing the Indemnitor; provided, however, that if outside counsel to
the Indemnitee reasonably advises the Indemnitee and the Indemnitor in a written
opinion that such joint representation raises a potential conflict of interest
as between the Indemnitee and the Indemnitor (other than a conflict concerning
the right to indemnification under this Agreement), then the Indemnitee shall
have the right to retain separate counsel to represent its interests in such
third party claim and the reasonable costs, fees and expenses thereof shall be
borne equally by the Indemnitee and the Indemnitor; and (iv) upon request of the
Indemnitor, the Indemnitee uses its Best Efforts to cooperate with the
Indemnitor in defending such third party claim by providing the Indemnitor with
all necessary business information and relevant documents under its control
related to the third party claim and cooperating with such other reasonable
requests of the Indemnitor at the Indemnitor's expense in accordance with
Applicable Law. The indemnity obligations under this Section 4.2 shall not apply
to amounts paid in settlement of any loss, claim, liability or action if such
settlement is effected without the consent of the Indemnitor, which consent
shall not be unreasonably withheld. The Indemnitee's failure to deliver notice
to the Indemnitor within a reasonable time after the commencement of any such
action, if materially prejudicial to the Indemnitor's ability to defend such
action, shall relieve the Indemnitor of any liability to the Indemnitee under
this Section 4.2, but not any liability that it may have to the Indemnitee
otherwise than under this Section 4.2.
4.3 Dispute Resolution. Any and all disputes between the parties or
between a party and the Company concerning this Agreement shall be governed by
the provisions of Article XV of the Operating Agreement, which shall survive any
termination of the Operating Agreement or dissolution of the Company.
4.4 Waiver of Compliance. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant or agreement contained herein may be waived only by a written notice
from the party entitled to the benefits thereof. No failure by any party hereto
to exercise, and no delay in exercising, any right hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of either right
hereunder preclude any other or future exercise of that right by that party.
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4.5 Notices. All notices and other communications hereunder shall be
deemed given if given in writing and delivered personally, by courier or by
facsimile transmission, telexed or mailed by registered or certified mail
(return receipt requested), fax, telex or postage fees prepaid, to the party to
receive the same at its respective address set forth below (or at such other
address as may from time to time be designated by such party to the others in
accordance with this Section 4.5):
If to the Manufacturer: With copies to:
Angeion Corporation Faegre & Benson, LLP
90 South Seventh Street
7601 Northland Drive 2200 Norwest Center
Brooklyn Park, MN 554 Minneapolis, MN 55401
Telephone: (612) 315-2000 Telephone: (612) 336-3600
Telecopier: (612) 315-2059 Telecopier: (612) 336-3026
Attention: Chief Executive Officer Attention: Jerry E. Snider
If to the Purchaser: With copies to:
ELA Medical, Inc. ELA Medical
2950 Xenium Lane Centre d'Affaires la Boursidiere
Plymouth, MN 55441 92357 Le Plessis Robinson
Telephone: (612) 519-9400 France
Telecopier: (612) 519-9440 Telephone: (33)(1)46.01.33.01
Attention: Chief Executive Officer Telecopier: (33)(1)46.01.33.15
Attention: President
Synthelabo
22 Avenue Galilee
92350 Le Plessis Robinson
France
Telephone: (33)(1)45.37.56.67
Telecopier: (33)(1)45.37.58.04
Attention: General Counsel
and
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703
Telephone: (212) 626-4400
Telecopier: (212-626-4120
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Attention: James C. Colihan, Esq.
All such notices and communications hereunder shall be deemed given when
received, as evidenced by the signed acknowledgment of receipt of the person to
whom such notice or communication shall have been personally delivered,
confirmed answer back or other evidence of transmission or the acknowledgment of
receipt returned to the sender by the applicable postal authorities. Receipt of
notices sent by facsimile shall be confirmed by telephone.
4.6 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any
rights, duties or obligations hereunder shall be assigned by either party
without the prior written consent of the other (which consent shall not be
unreasonably withheld) and any attempted assignment or transfer without such
prior written consent shall be null and void; provided that, ELA shall have the
right, without the prior written consent of Angeion, to assign its rights and to
delegate its duties under this Agreement to any Affiliate of ELA, and provided
that, Angeion shall have the right, without the prior written consent of ELA, to
assign its rights and to delegate its duties under this Agreement in connection
with the sale of substantially all of the assets of Angeion related to the
design, development and manufacture of implantable cardioverter defibrillators;
provided, however, that Angeion shall not, without the prior written consent of
ELA, sell all or substantially all of such assets unless the purchaser of such
assets provides ELA with evidence reasonably satisfactory to ELA of such
purchaser's agreement to assume all of Angeion's obligations and liabilities
under, and to be found by all the provision of, this Agreement and the Amended
and Terminated Angeion Supply Agreement.
4.7 No Third Party Beneficiaries. Neither this Agreement or any
provision hereof nor any Exhibit, certificate or other instrument delivered
pursuant hereto, nor any agreement to be entered into pursuant hereto or any
provision hereof, is intended to create any right, claim or remedy in favor of
any person or entity, other than the parties hereto and their respective
successors and permitted assigns.
4.8 Expenses. Each party shall pay its own expenses, including
attorneys' fees and disbursements, in connection with this Agreement, the
agreements to be entered into pursuant hereto and the transactions contemplated
hereby.
4.9 Public Announcements. Unless required by law, regulatory
authority or the rules of any applicable securities exchange, no party shall
issue any press release or make any other public announcement with respect to
this Agreement or the transactions contemplated hereby, without the prior
consent of the other parties, which consent shall not be unreasonably withheld.
The parties will reasonably cooperate with each other in the development and
distribution of all press releases and other public announcements with respect
to this Agreement
-10-
<PAGE>
and the transactions contemplated hereby, and will furnish the other with drafts
of any such releases and announcements as far in advance as practicable.
4.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.11 Headings. The article and section headings contained in this
Agreement are solely for convenience of reference, are not part of the agreement
of the parties and shall not be used in construing this Agreement or in any way
affect the meaning or interpretation of this Agreement.
4.12 Entire Agreement; Severability. This Agreement, and the
Exhibits, certificates and other instruments and documents delivered pursuant
hereto, together with the other agreements referred to herein and to be entered
into pursuant hereto, embody the entire agreement of the parties hereto in
respect of, and there are no other agreements or understandings, written or
oral, among the parties relating to, the subject matter hereof. This Agreement
supersedes all prior agreements and understandings, written or oral, between the
parties with respect to the subject matter hereof. The invalidity, illegality or
unenforceability for any reason of any one or more provisions of this Agreement
shall not affect the validity, legality or enforceability of the remainder of
this Agreement.
4.13 Governing Law. This Agreement, and the respective rights,
duties and obligations of the parties hereunder, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law thereunder.
-11-
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of this 11th day of May, 1999.
ANGEION CORPORATION
By: /s/ James B. Hickey Jr.
-------------------------------------
Name: James B. Hickey Jr.
Title: President & CEO
ELA MEDICAL, INC.
By: /s/ Michel Mounier
-------------------------------------
Name: Michel Mounier
Title:
-12-
EXHIBIT 10.3
AMENDMENT AND TERMINATION
OF
IMPLANTABLE CARDIOVERTER DEFIBRILLATOR PRODUCT
MANUFACTURING AND SUPPLY AGREEMENT
THIS AMENDMENT AND TERMINATION is entered into this 11th day of May,
1999 by and between Angeion Corporation, a Minnesota corporation ("Angeion"),
and ELA* Angeion, LLC, a Delaware limited liability company (the "Company").
RECITALS
WHEREAS, Angeion and ELA Medical, Inc., a Delaware corporation
("ELA") entered into a joint venture to market and sell cardiac stimulation and
related devices manufactured by ELA and Angeion in the United States (the
"Business").
WHEREAS, in connection with the joint venture, Angeion and ELA
formed the Company (formerly known as Angellan Medical Systems, LLC), by
entering into the Limited Liability Company Operating Agreement of Angellan
Medical Systems, LLC dated December 9, 1997 (the "Operating Agreement").
WHEREAS, Angeion and the Company entered into an Implantable
Cardioverter Defibrillator Product Manufacturing and Supply Agreement dated
December 9, 1997 (the "Angeion Supply Agreement"; capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Angeion Supply Agreement).
WHEREAS, pursuant to a Withdrawal Agreement between Angeion and ELA
of even date herewith, Angeion has withdrawn from the Company and ELA has
assumed certain obligations of Angeion.
WHEREAS, pursuant to Section 10.1 of the Operating Agreement, the
Angeion Supply Agreement is terminated as a result of Angeion's withdrawal from
the Company, except as to Angeion's Current Products (as hereinafter defined).
WHEREAS, Angeion and the Company wish to acknowledge the termination
of the Angeion Supply Agreement, except as to Angeion's Current Products, and to
amend the Angeion Supply Agreement to clarify the obligations and rights of each
other from and after the Effective Date (as hereinafter defined) under the
Angeion Supply Agreement with respect to Angeion's Current Products.
NOW, THEREFORE, in consideration of the mutual premises set forth
herein and other good and valuable consideration, the parties hereto hereby
agree as follows:
<PAGE>
ARTICLE I
TERMINATION OF ANGEION SUPPLY AGREEMENT
1.1 Termination of Future Products Due to Angeion Withdrawal. The
parties agree and acknowledge that, in accordance with Section 10.1 of the
Angeion Supply Agreement, the Angeion Supply Agreement is terminated, null and
void and of no further force and effect except as to Angeion's Current Products
from and after the date of this Agreement (the "Effective Date").
1.2 Survivability as to Future Products. Notwithstanding Section
13.7 of the Angeion Supply Agreement, the parties agree and acknowledge that
none of the provisions of the Angeion Supply Agreement shall have any force or
effect as to Products other than the model series of Products supplied to the
Company by Angeion under the Angeion Supply Agreement as of the Effective Date,
including the model series 2010 ICD, the model series 2020 ICD, the model series
4020 lead, the model series 4040 lead, the model series 4080 lead, the model
series 4090 lead and the model series 3000 programmer (collectively "Angeion's
Current Products").
ARTICLE II
AMENDMENT OF ANGEION SUPPLY AGREEMENT
2.1 Incorporation of Angeion Supply Agreement. The rights and
obligations of the parties with respect to Angeion's Current Products as of the
Effective Date shall be governed by the terms and conditions of the Angeion
Supply Agreement as amended herein. Unless otherwise expressly amended herein,
the provisions of the Angeion Supply Agreement are hereby ratified with respect
to Angeion's Current Products as of the Effective Date.
2.2 Rights and Obligations upon Termination. Notwithstanding the
provisions of Section 10.3 of the Angeion Supply Agreement, but subject to the
provisions of Section 13.7 as hereby amended, neither party shall have any
further duties or obligations to the other under the Angeion Supply Agreement
from and after the Effective Date. without limiting the generality of the
foregoing, the Parties hereby agree as follows:
(a) Termination of Exclusive Obligation to Manufacture.
Subject to filling a final Order for Products in accordance with the Firm Order
attached hereto as Exhibit 1, Angeion shall have no further obligations under
Section 2.1(a), Sections 2.2(a) to 2.2(c), all of Section 6.1, and all of
Section 7.1 of the Angeion Supply Agreement with respect to Angeion's Current
Products. Notwithstanding Section 2.1(c) of the Angeion Supply Agreement,
Angeion agrees and acknowledges that the Company
2
<PAGE>
may in its sole discretion sell or otherwise transfer in any way whatsoever any
Products in its inventory to ELA or an Affiliate of ELA.
(b) Termination of Obligations for Other Cardiac-Related
Devices. Neither party shall have any further obligations under Section 2.4 of
the Angeion Supply Agreement.
(c) Ownership of Copyrights. Section 3.4 of the Angeion Supply
Agreement is ratified except to the extent that title to all copyrights of the
Company shall be governed by the Withdrawal Agreement.
(d) Termination of Obligations to Commercialize. Purchaser
shall have no further obligations under Sections 4.1(a), all of Section 4.2 and
Section 7.4 of the Angeion Supply Agreement. Company shall have no further
obligations under Section 4.1(f) of the Angeion Supply Agreement as such
obligations have been assumed by ELA pursuant to the Withdrawal Agreement.
(e) Promotional Materials. Neither party shall have any
further obligations under Section 4.3 of the Angeion Supply Agreement with
respect to newly developed Technical Materials or Promotional Materials;
provided, however, that each party shall remain obligated under Section 4.3(a)
and 4.3(b) of the Angeion Supply Agreement for existing Technical Materials and
Promotional Materials.
(f) Transfer of Obligations for Technical Service. Angeion
shall have no further obligations to provide services under Section 4.4 of the
Angeion Supply Agreement as such obligations have been assumed by ELA pursuant
to the Withdrawal Agreement.
(g) Termination of Obligations for Clinical Studies. Angeion
shall have no further obligations under all of Section 5.1 of the Angeion Supply
Agreement.
(h) Transfer of Obligations for Governmental Approvals.
Angeion shall have no further obligations under Sections 5.2 (a), 5.2(b), 5.2(d)
or 5.2(f) of the Angeion Supply Agreement as such obligations have been assumed
by ELA pursuant to the Withdrawal Agreement.
3
<PAGE>
(i) Amendment to Return of Expired Products. Section 7.5 of
the Angeion Supply Agreement is amended such that, as of the Effective Date, the
Company shall return any expired Inventory to ELA as such obligations have been
assumed by ELA pursuant to the Withdrawal Agreement.
(j) Amendment to Quality Control. The rights of inspection
under Section 8.1 of the Angeion Supply Agreement are terminated as of the date
of the final shipment of the final Order for Angeion's Current Products from
Angeion.
(k) Transfer of Obligations for Records and Traceability. Upon
receipt by ELA of complete technical dossiers for Angeion's Current Products,
Angeion shall have no further obligations under Section 8.3 of the Angeion
Supply Agreement and the Company shall have no further obligation under Section
10.3(d) and 10.3(e) of the Angeion Supply Agreement as such obligations have
been assumed by ELA pursuant to the Withdrawal Agreement.
(l) Amendment of Obligations for Warranty Coverage. Section
9.1(b) of the Angeion Supply Agreement is amended to reflect that Angeion has no
continuing obligations for any such breach of warranty and that ELA has assumed
all of the obligations of Angeion under Section 9.1(b) as such obligations have
been assumed by ELA pursuant to the Withdrawal Agreement. In the event Angeion
does not agree with ELA's determination that such Product is defective, Angeion
and ELA may retain an appropriate expert to make such determination in
accordance with the provisions of Section 9.1(b) of the Angeion Supply
Agreement. Neither party shall have any further obligation to discuss the nature
and content of written product warranties under Section 9.1(c) of the Angeion
Supply Agreement.
(m) Obligations Concerning Termination.
(i) The parties agree that Section 10.3(a) of the
Angeion Supply Agreement shall not apply to the Company with respect to
Angeion's Current Products.
(ii) Pursuant to Section 10.3(f) of the Angeion Supply
Agreement, the Company agrees to accept as a final order of Angeion's
Current Products the outstanding Order for fifteen (15) Units represented
by the Firm Order attached hereto as Exhibit 1, to be shipped to the
Company under the Angeion Supply Agreement at an agreed upon Transfer
Price of $10,750 per Unit (Unit being a model 2020 Series ICD together
with a model 4040 Series lead), and that the Company shall not cancel this
Order or submit any further Orders for Angeion's Current Products.
(iii) Notwithstanding Section 10.3(g) of the Angeion
Supply Agreement, Angeion agrees that the Company may transfer to ELA, at
its
4
<PAGE>
discretion in the event of a dissolution of the Company or by an assignment by
the Company to ELA of all of the Company's rights under the Angeion Supply
Agreement, all Technical Information or Confidential Information of the Company
with respect to Angeion's Current Products in the possession of the Company in
connection with the obligations assumed by ELA pursuant to the Withdrawal
Agreement.
(n) Termination of Obligations for Publicity and
Non-Solicitation. Neither party shall have any further obligations under
Sections 11.2 and 11.3 of the Angeion Supply Agreement.
2.3 Termination of Survival Provision. Section 13.7 of the Angeion
Supply Agreement is hereby superceded by this Amendment and Termination which
provides that only Sections 5.2(g), 6.3, 8.1, 9.1, 9.2, 9.3, 9.4, 9.5, 9.9 and
Articles 12 and 13 shall survive the expiration of the term of the Angeion
Supply Agreement as amended hereby.
2.4 Successors and Assigns. Angeion hereby agrees that, pursuant to
the terms of Section 13.8 of the Angeion Supply Agreement, ELA may acquire the
entire rights and obligations of the Angeion Supply Agreement as amended by this
Amendment and Termination by dissolution of the Company, acquisition,
assignment, transfer or otherwise.
ARTICLE III
RELATED ACKNOWLEDGEMENTS
3.1 No Obligation to Repurchase Inventory. The Company hereby agrees
and acknowledges that Angeion shall have no obligation to repurchase any
inventory purchased by the Company from Angeion pursuant to the Angeion Supply
Agreement.
3.2 Changes in Labeling. The Company hereby agrees and acknowledges
that Angeion shall not be responsible for and cannot provide services for any
labeling and regulatory changes, if any, required by the withdrawal of Angeion
from the Company, and that the Company shall bear all labeling and regulatory
costs associated with such withdrawal.
5
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Amendment and
Termination as of this 11th day of May, 1999.
ANGEION CORPORATION
By: /s/ James B. Hickey Jr.
-------------------------------------
Name: James B. Hickey Jr.
Title: President & CEO
ELA*ANGEION, LLC
By: /s/ Michel Mounier
-------------------------------------
Name: Michel Mounier
Title:
6
EXHIBIT 10.4
AMENDMENT OF
IMPLANTABLE CARDIOVERTER DEFIBRILLATOR PRODUCT
MANUFACTURING AND SUPPLY AGREEMENT
This Amendment is entered into as of the 11th day of May, 1999 (the
"Effective Date") by and between Angeion Corporation, a Minnesota corporation
("Angeion"), and ELA Medical, a societe anonyme organized and existing under the
laws of the Republic of France ("ELA").
RECITALS
WHEREAS, Angeion and ELA Medical, Inc., a Delaware corporation and
an affiliate of ELA ("ELA US"), entered into a joint venture (the "Joint
Venture") to market and sell cardiac stimulation and related devices
manufactured by ELA and Angeion in the United States (the "Cardiac Stimulation
Device Business");
WHEREAS, in connection with the formation of the Joint Venture,
Angeion and ELA entered into an Implantable Cardioverter Defibrillator Product
Manufacturing and Supply Agreement dated December 9, 1997 (the "Supply
Agreement"; capitalized terms used but not otherwise defined herein shall have
the meaning ascribed to such term in the Supply Agreement) to market and sell
cardiac stimulation and related devices manufactured by Angeion in Europe and
Japan;
WHEREAS, Angeion is currently considering certain strategic
alternatives, including, but not limited to, refocusing its operations so that
it would no longer be engaged in the Cardiac Stimulation Device Business;
WHEREAS, pursuant to a Withdrawal Agreement dated May 11, 1999 (the
"Withdrawal Agreement"), Angeion has withdrawn from the Joint Venture;
WHEREAS, as part of the Withdrawal Agreement, it was agreed that the
Supply Agreement would be amended to clarify the obligations and rights of each
party from and after May 11, 1999 under the Supply Agreement with respect to
Angeion's Current Products (as hereinafter defined);
NOW, THEREFORE, in consideration of the mutual premises set forth
herein and other good and valuable consideration, the parties hereto hereby
agree to amend the Supply Agreement as follows:
ARTICLE I
AMENDMENT OF SUPPLY AGREEMENT
1.1 Incorporation of Supply Agreement. The rights and obligations of
the parties with respect to the model Series 2010 and 2020 ICD, the model Series
4020, 4040, 4080 and 4090
<PAGE>
leads, and the model series 3000 programmer (collectively "Angeion's Current
Products") as of the Effective Date shall be governed by the terms and
conditions of the Supply Agreement as amended hereby. Unless otherwise expressly
amended herein, the provisions of the Supply Agreement are hereby ratified as of
the Effective Date.
1.2 Obligations as to Angeion's Current Products. From and after the
Effective Date, the parties hereby agree that the Supply Agreement with respect
to Angeion's Current Products shall be amended to provide as follows:
(a) Notwithstanding the obligations of Angeion pursuant to
Article II of the Supply Agreement, Angeion's obligation to supply to ELA the
model series 2010 and 2020 ICD, the model series 4020 and 4040 leads and the
model series 3000 programmer shall be limited to the one hundred eighty-five
(185) Units (as hereinafter defined) represented by the Order received by
Angeion on or about May 1, 1999. Each "Unit" is defined as being comprised of a
model series 2020 ICD and a model series 4040 lead; provided, that Angeion's
obligation to supply to ELA the model series 4080 and 4090 leads shall be
limited to filling Orders for no more than the total number of such leads in
Angeion's possession on the Effective Date as set forth in Exhibit 1 attached
hereto.
(b) Notwithstanding the rights and obligations of each party
pursuant to Article VI of the Supply Agreement, the Unit Transfer Price for each
of the one hundred eighty-five (185) Units represented by the Order received on
or about May 1, 1999 shall be $8,900 USD, and ELA shall be prohibited from
canceling this Order.
(c) Neither party shall have any further obligations under
Section 4.3 of the Supply Agreement with respect to newly developed Technical
Materials or Promotional Materials for Angeion's Current Products; provided,
however, that each party shall remain obligated under Section 4.3(a) and 4.3(b)
of the Supply Agreement for existing Technical Materials and Promotional
Materials.
(d) Angeion shall have no further obligations to provide
services under Section 4.4 of the Supply Agreement for Angeion's Current
Products as such obligations have been assumed by ELA pursuant to Article II
hereof.
(e) ELA hereby agrees and acknowledges that Angeion shall not
be responsible for and cannot provide service for any labeling or regulatory
changes in the Labels and Markings or the Technical Materials under Section 4.5
of the Supply Agreement for Angeion's Current Products, and that ELA shall bear
all labeling and regulatory responsibilities and costs for any changes to the
existing Labels and Markings or Technical Materials for Angeion's Current
Products.
(f) Angeion shall have no further obligations under Sections
5.2(a), 5.2(b), 5.2(c) or 5.2(h) of the Supply Agreement for Angeion's Current
Products as such obligations have been assumed by ELA pursuant to Article II
hereof.
2
<PAGE>
(g) The rights of inspection under Section 8.1 of the Supply
Agreement for Angeion's Current Products are hereby terminated as of the date of
the final shipment by Angeion of the final Order for Angeion's Current Products.
(h) Upon receipt by ELA of the complete technical dossiers for
Angeion's Current Products pursuant to Article II hereof, Angeion shall have no
further obligation under Section 8.3 of the Supply Agreement for Angeion's
Current Products.
(i) Section 9.1(b) of the Supply Agreement is amended to
reflect that Angeion has no continuing obligations for any breach of warranty
for Angeion's Current Products and that ELA has assumed all such obligations of
Angeion under Section 9.1(b) pursuant to Article II hereof. In the event Angeion
does not agree with ELA's determination that any such Product is defective under
Section 9.1(b) of the Supply Agreement, Angeion and ELA may retain an
appropriate expert to make such determination in accordance with the provisions
thereof.
(j) Neither party shall have any further obligations under
Section 11.3 of the Supply Agreement.
ARTICLE II
ASSUMPTION OF CERTAIN ANGEION OBLIGATIONS
2.1 Assumption of Warranty, Technical Service and Regulatory
Compliance. Subject to receiving from Angeion a copy of the complete technical
dossiers for such products and all information and know how necessary to provide
such service, such dossiers and information being limited to that information
currently in Angeion's possession, ELA (directly or through its Affiliates)
agrees to provide at its own expense full warranty coverage, technical service
and regulatory compliance services, for which Angeion was previously responsible
under (i) Applicable Law and (ii) the Supply Agreement for all Angeion ICD
models Series 2000, 2010 and 2020 and associated leads implanted in humans in
Europe or Japan (including associated programmers for such ICD models), whether
sold by ELA or Angeion and its Affiliates, other than any and all such units
implanted or sold by St. Jude Medical, Inc.. Upon transfer to ELA by Angeion of
the complete technical dossiers for such products, ELA agrees to (i) make such
technical dossiers available to Angeion within two (2) business days of a
written request for access, (ii) provide copies to Angeion, at Angeion's cost,
of specific documents from such technical dossiers within five (5) business days
of a written request for such specific documents, and (iii) provide copies to
Angeion of all field communications and product or software upgrades issued by
ELA (directly or through its Affiliates) in the United States or Europe
concerning such products.
2.2 Grant of Limited License. Angeion hereby grants to ELA a limited
license to use such technical information and know how contained in the
technical dossier materials provided pursuant to Section 2.1 for the purposes of
providing the warranty, technical and regulatory compliance services.
3
<PAGE>
2.3 Survival. Angeion and ELA agree and acknowledge that ELA's
obligation to provide warranty, technical and regulatory compliance services
shall survive any termination of the Supply Agreement.
ARTICLE III
AMENDMENT OF WITHDRAWAL AGREEMENT
3.1 Cancellation of Obligation to Maintain Escrow Account. Pursuant
to Section 3.1 of the Withdrawal Agreement, Angeion had agreed that fifty per
cent (50%) of amounts payable by ELA with respect to the Units to be shipped by
Angeion pursuant to the Order received on or about May 11, 1999 and referred to
in Section 1.2(a) above would be paid into an escrow account until such time as
the amount in the escrow account equaled $800,000. Angeion and ELA hereby agree
that such obligation shall be superceded by the provisions of Section 3.2.
3.2 Prepayment of Product Liability Insurance. On or prior to July
31, 1999, Angeion will prepay the premium for product liability insurance for
Angeion's Current Products for a period of five (5) years from and after the
Effective Date in the approximate amount of $1,111,000. Angeion further agrees
to pay the premium for such product liability insurance as a binding,
non-cancelable payment and will not cancel this policy.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
ANGEION CORPORATION
By: /s/ James B. Hickey Jr.
-------------------------------------
Name: James B. Hickey Jr.
Title: President and CEO
ELA MEDICAL
By: /s/ Michel R. Mournier
-------------------------------------
Name: Michel R. Mournier
Title: President
EXHIBIT 10.5
Angeion Corporation
7601 Northland Drive
Brooklyn Park, Minnesota 55428-1008
USA
Telephone: 612/315-2057
Facsimile: 612/315-2059
11 May 1999 [LOGO]
ANGEION (R)
Philippe Goupit CORPORATION
Synthelabo
22 avenue Galilee
B.P. 82
92355 Le Plessis Robinson
Cedex, France
RE: LETTER AMENDMENT TO INVESTMENT AND MASTER STRATEGIC
RELATIONSHIP AGREEMENT BETWEEN ANGEION AND SYNTHELABO
Dear Philippe:
This letter will document our amendment to the Amended and Restated Investment
and Master Strategic Relationship Agreement dated as of October 9, 1997 (the
"Investment Agreement") between Angeion Corporation, a Minnesota corporation
("Angeion"), and Synthelabo, a societe anonyme organized under the laws of the
Republic of France ("Synthelabo"), pursuant to the terms of the Withdrawal
Agreement dated as of May 11, 1999 between Angeion and ELA Medical, Inc., a
Delaware corporation and wholly-owned subsidiary of Synthelabo. Angeion and
Synthelabo hereby amend the Investment Agreement as follows:
(a) Sections 4.3(d) and 4.3(e) of the Investment Agreement
are terminated as of May 11, 1999; and
(b) Section 4.3(c) of the Investment Agreement is amended
such that Section 4.3(c) shall not apply to Joint
Venture Liabilities, as that term is defined in the
Investment Agreement, to the extent such Joint Venture
Liabilities (i) relate to, or are based on or arise from
the conduct of the business of the Joint Venture, as
that term is defined in the Investment Agreement, from
and after April 1, 1999, excluding, however, any Third
Party Claim, as that term is defined in the Limited
Liability Company Operating Agreement of Angellan
Medical Systems, LLC dated December 9, 1997 (the
"Operating Agreement"), asserted by or on behalf of a
patient arising out of or relating to any Product
supplied by Angeion under the Angeion Supply Agreement,
as those terms are defined in the Operating Agreement or
(ii) are reflected on the balance sheet of the Joint
Venture as of March 31, 1999.
<PAGE>
Please indicate your acceptance of this amendment to the Investment Agreement by
executing and returning to me one of the originals of this Letter Amendment.
Sincerely,
/s/ James B. Hickey, Jr.
James B. Hickey, Jr.
President/CEO
Agreed and accepted on behalf of Synthelabo
as the date first written above by:
By: /s/ J. P. Charlet
--------------------------------------
Its: Vice President
--------------------------------------
General Counsel
/s/ Marr Guyader
M. Guyader
Vice President
EXHIBIT 10.6
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this "Settlement
Agreement") is made and entered into as of the 11th day of May, 1999, by and
between ANGEION CORPORATION, a Minnesota corporation ("Angeion"), ELA MEDICAL,
INC., a Delaware corporation ("ELA US"), and ELA MEDICAL, a societe anonyme
organized under the laws of France ("ELA SA"). Angeion, ELA US and ELA SA are
collectively known hereinafter as the "Parties". Terms used but not defined
herein shall have the meaning assigned to such terms in the Operating Agreement
(as hereinafter defined).
RECITALS
WHEREAS, Angeion and ELA US are party to that certain Withdrawal
Agreement (the "Withdrawal Agreement") dated of even date herewith, pursuant to
which ELA US has assumed certain obligations of Angeion and Angeion has
withdrawn from ELA*Angeion LLC, a Delaware limited liability company (the
"Company");
WHEREAS, the Parties would like to resolve and settle certain
potential obligations and liabilities of Angeion, ELA US and ELA SA pursuant to
and arising under certain provisions of the Limited Liability Company Operating
Agreement of the Company dated December 9, 1997 (the "Operating Agreement")
between Angeion and ELA US, the ELA Supply Agreement and the Angeion Supply
Agreement, as amended by the Amendment and Termination of the Angeion Supply
Agreement dated May 11, 1999 (collectively, the "Supply Agreements"); and
WHEREAS, the Parties have agreed to resolve and settle the potential
obligations and liabilities of Angeion, ELA US and ELA SA described herein in
accordance with this Settlement Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the
terms and provisions set forth herein, the receipt and sufficiency of which
consideration is hereby acknowledged, each of the Parties agree as follows:
TERMS OF AGREEMENT
1. Settlement and Release of ELA US. ELA US and its predecessors, successors,
affiliates, assigns, parents, subsidiaries, and related corporations and
entities (collectively, the "ELA US Parties"), hereby forever and
completely remise, release and forever quitclaim and discharge Angeion and
its predecessors, successors, affiliates, assigns, parents, subsidiaries,
and related corporations and entities (collectively, the "Angeion
Parties") and the respective officers, directors,
<PAGE>
employees, agents and attorneys of each of the Angeion Parties, of and
from all actions, causes of actions, suits, debts, dues, sums of money,
accounts, bonds, bills, covenants, contracts, controversies, agreements,
promises, damages, judgements, claims, and demands whatsoever, in law or
in equity, whether present or future, known or unknown, asserted or
unasserted, suspected or unsuspected, arising out of or relating to any
obligations or liabilities of the Angeion Parties related to or arising
under the Operating Agreement or the Angeion Supply Agreement, except for
(i) any such obligations or liabilities of any of the Angeion Parties
arising under or related to the Withdrawal Agreement, and (ii) those
provisions of the Operating Agreement and the Supply Agreements, which by
the terms of each such respective Agreement survive the expiration or
termination thereof.
2. Settlement and Release of ELA SA. ELA SA and its predecessors, successors,
affiliates, assigns, parents, subsidiaries, and related corporations and
entities (collectively, the "ELA SA Parties"), their respective officers,
directors, employees, agents and attorneys, hereby forever and completely
remise, release and forever quitclaim and discharge the Angeion Parties of
and from all actions, causes of actions, suits, debts, dues, sums of
money, accounts, bonds, bills, covenants, contracts, controversies,
agreements, promises, damages, judgements, claims, and demands whatsoever,
in law or in equity, whether present or future, known or unknown, asserted
or unasserted, suspected or unsuspected, arising out of or relating to any
obligations or liabilities of the Angeion Parties related to or arising
under ELA Supply Agreement, except for (i) any such obligations or
liabilities of any of the Angeion Parties arising under or related to the
Withdrawal Agreement, and (ii) those provisions of the Operating Agreement
and the Supply Agreements, which by the terms of each such respective
Agreement survive the expiration or termination thereof and (iii) claims
of Angeion with respect to software development costs for ELA SA's
installed base of programmers.
3. Settlement and Release of Angeion. The Angeion Parties hereby forever and
completely remise, release and forever quitclaim and discharge the ELA US
Parties and the ELA SA Parties (collectively, the "ELA Parties"), their
respective officers, directors, employees, agents and attorneys, of and
from all actions, causes of actions, suits, debts, dues, sums of money,
accounts, bonds, bills, covenants, contracts, controversies, agreements,
promises, damages, judgements, claims, and demands whatsoever, in law or
in equity, whether present or future, known or unknown, asserted or
unasserted, suspected or unsuspected, arising out of or relating to any
obligations or liabilities of the ELA Parties related to or arising under
the Operating Agreement or either of the Supply Agreements, except for (i)
any such obligations or liabilities of any of the ELA US Parties arising
under or related to the Withdrawal Agreement, and (ii) those provisions of
the Operating Agreement and the Supply
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Agreements, which by the terms of each such respective Agreement survive
the expiration or termination thereof.
4. No Admission of Liability. This Settlement Agreement is in no way an
admission of liability by any of the Parties.
5. No Third Party Beneficiaries. This Settlement Agreement shall inure to the
benefit of and be binding upon each of the Parties hereto and their
respective successors and assigns. Nothing expressed or mentioned in this
Settlement Agreement is intended to nor shall be construed, to give any
person other than the Parties hereto and their respective successors and
assigns any legal or equitable right, remedy or claim under or in respect
of this Settlement Agreement or any provision herein contained. This
Settlement Agreement and all conditions and provisions hereof are intended
to be and are for the sole and exclusive benefit of the Parties hereto and
their respective successors and assigns, and for the benefit no other
person.
6. Entire Agreement. This Settlement Agreement, together with the Withdrawal
Agreement and the related agreements contemplated thereby, constitutes the
entire agreement between the Parties with respect to these specific
matters and it shall not be amended or modified in any way except by a
subsequent agreement executed in writing by all of the Parties. This
Settlement Agreement supercedes any prior understandings, agreements or
representations between or among the Parties, whether written or oral,
with respect to the specific matters referred to herein.
7. Non-Disclosure. This Settlement Agreement shall not be cited or otherwise
referenced to in any other proceeding without the prior written consent of
each of the other Parties (which consent shall not be unreasonably
withheld), except as otherwise required by law, whether judicial or
administrative in nature, in which the Parties have or may acquire an
interest, except as necessary to implement the terms of this Settlement
Agreement.
8. Succession and Assignment. This Settlement Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. None of the Parties may assign either
this Settlement Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of each of the other Parties.
9. Governing Law. This Settlement Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
without giving effect to any choice or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of laws of
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any jurisdiction other than those of the State of New York.
10. Headings. The section headings contained in this Settlement Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Settlement Agreement.
11. Counterparts. This Settlement Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
12. No Other Change to Operating Agreement or Supply Agreements. All other
provisions of the Operating Agreement and the Supply Agreements not
changed by this Settlement Agreement remain in place in accordance with
the terms of each such agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Settlement
Agreement to be duly executed as of the date and year first written above.
ANGEION CORPORATION ELA MEDICAL, INC.
By: /s/ James B. Hickey, Jr. By: /s/ Michel Mounier
--------------------------------- -----------------------------
Its: President & CEO Its:
--------------------------------- -----------------------------
ELA MEDICAL
By: /s/ Michel Mounier
-----------------------------
Its:
-----------------------------
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