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EXHIBIT 10.4
AMENDMENT TO PRODUCTION AND SUPPLY AGREEMENT
This Amendment ("Amendment") is made as of the 30 day of October 2000 by and
between Dade Behring Marburg GmbH, successor company to Behring Diagnostics GmbH
("Dade") and Messer Cutting and Welding AG, successor to Messer Griesheim
Schweisstechnik GmbH & Co. ("Messer").
Preamble
A. Dade and Messer have entered into a Production and Supply Agreement dated
September 29, 1997 (the "Agreement"), pursuant to which Dade has agreed to
purchase certain Products from Messer, and pursuant to which the parties
have agreed to certain terms relating to development of new products and
technological advances affecting the existing Products.
B. Dade wishes to take steps to ensure the performance of Messer under the
Agreement and to gain greater control over the manufacture of certain
Products; in particular the BN Prospec which is currently manufactured for
Dade solely by Messer.
C. Dade and Messer wish to amend the terms of the Agreement in accordance with
the terms of section 17.6 thereof.
D. Capitalised terms used and not otherwise defined herein shall have the same
meanings as are ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of Dade's agreement to forbear from exercising
certain rights under the Agreement based on Messer's performance thereunder,
Dade's agreement to maintain Messer as manufacturer for other Products, and the
mutual promises made herein, the parties hereby agree as follows:
Article 1
Transition of Products Manufacturing
1.1 Dade and Messer agree that manufacture of the Product BN Prospec, which is
currently manufactured by Messer at its Schwalbach facility, shall be
transferred to Dade's facility in Brookfield, United States of America, on
or near June 30, 2001. Transition procedures include activities relating to
training, transfer of know-how, scale-up, and parts supply, all as more
fully described on Schedule 1 attached hereto. Each of such procedures
shall be completed by the date specified on Schedule 1 and Messer agrees
that failure to meet such milestones shall, absent an express waiver from
Dade, constitute a breach of the Agreement as amended hereby, if such
failure has a material adverse effect on the transition process. Such
milestone dates may be adjusted from time to time as the parties may agree,
provided, however, that such adjustments shall not be construed as
permitting Messer to delay the transfer. After such transfer is complete,
Messer shall cease all production of BN Prospec and the Brookfield facility
shall be the sole manufacturer and supplier to Dade of BN Prospec.
1.2 Notwithstanding the target dates established in section 1.1 above and on
Schedule 1, Dade shall determine in its sole discretion when the transfer
of manufacture of BN Prospec to Brookfield shall be completed. Dade and
Messer agree to jointly create a detailed transition plan within ninety
(90) days of the date of this Agreement.
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1.3 Dade agrees and guarantees that Messer shall have the right to produce all
of Dade's requirements for BN Prospec for the Year 2000. Dade further
agrees that Messer shall have the right to produce at least fifty percent
(50%) of Dade's requirements for the Year 2001 (the latter estimated to
consist of 200 units), provided that Messer meets its milestones as set
forth on Schedule 1. Failing this, Dade shall have the option to reduce
Messer's production to thirty percent (30%) of Dade's requirements for BN
Prospec, subject in each case to the terms of the Agreement as amended
hereby.
1.4 Dade expressly reserves the right to transfer the manufacture of any other
Products currently manufactured by Messer to other facilities if Messer
fails to meet its quality and continuity of supply obligations pursuant to
the Agreement or this Amendment, including, without limitation, its
obligations pursuant to section 4.4 hereof.
1.5 In addition to, and not in limitation of, the foregoing, Dade shall have
the option to transfer the manufacture of the Product known as Behring
Coagulation System (BCS) from Messer to Brookfield at any time after
December 31, 2003.
1.6 Messer agrees to provide to Brookfield or any other facility designated by
Dade spare parts and components for BN Prospec and any other transferred
Products as required and ordered by Dade from time to time. Prices for
such spare parts and components shall be in accordance with the terms of
section 7 of this Amendment.
1.7 Dade agrees to purchase from Messer, and Messer agrees to provide to Dade,
all material that Messer itself has purchased for use in 2001 in connection
with BN Prospec manufacturing and spare parts requirements, at Messer's
cost less the amount required by Messer to manufacture certain quantities
of instruments; provided, however, that all such material shall be useable
and the purchased quantities shall be generally in line with Dade forecasts
made to Messer.
Article 2
Products Remaining at Messer
2.1 All Products other than BN Prospec which are currently manufactured by
Messer pursuant to the Agreement and set out on Annex 1.1(a) thereto shall
continue to be manufactured by Messer through the life of the respective
Products or as otherwise agreed by Dade and Messer; subject, however, to
the additional terms set out below.
2.2 The reference to the Behring Nephelometer 100 (BN 100) is hereby deleted
from Annex 1.1(a) to the Agreement. The reference to New Small Analyzer
(NSA) is hereby also deleted from Annex 1.1(a) as this is an earlier
designation for BN Prospec. The references to Behring Elisa Processor II
Plus (BEP II Plus) and Behring Fibrintimer A (BFA) shall remain on Annex
1.1(a), but the parties acknowledge and agree that production of these
products has ceased and only refurbishment and re-manufacturing work is
carried out from time to time with respect thereto.
2.3 Dade agrees that Messer shall be its exclusive supplier of category II sub-
assemblies, each as more fully described on Schedule 2 attached hereto, for
a minimum period of three (3) years from the date of this Amendment,
subject to (i) Messer's timely meeting of the milestones set forth on
Schedule 1 and (ii) Messer's continuing to meet its quality and continuity
of supply obligations pursuant to the Agreement as amended hereby. In the
event of such failure(s) by Messer, provided that such failure has a
--------------------------------
material adverse effect on the transition process or the implementation of
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the Agreement as amended hereby, Dade shall have the option of reducing
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such three-year commitment for production of the category II sub-assemblies
to any shorter period as it shall deem appropriate. Dade shall have the
option at the end of such period, whether it be three (3)
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years or less, to transfer manufacture and supply of these sub-assemblies
to Brookfield, to another facility or facilities, or to an outside supplier
in its sole discretion.
2.4 The reference to New Small Analyzer (NSA) in Annex 7.2 to the Agreement is
hereby deleted.
Article 3
Transition Support for BN Prospec
3.1 Messer shall use its best efforts to provide all necessary or desirable
assistance and support to Dade relating to the transfer of know-how,
practices and information as contemplated by Articles 1 and 2 of this
Amendment.
3.2 Further to section 3.1 above, Messer agrees to provide Dade with all
relevant documentation and other materials necessary or desirable in
connection with the transition of manufacturing to Brookfield. Such
documentation shall include, without limitation, drawings, specifications,
manufacturing details, instructions, test procedures, supplier
specifications, supplier listings, SOPs, process instructions, and any
other relevant supplier information whether owned by Dade or by Messer.
3.3 Messer agrees to duplicate all manufacturing test fixtures, jigs or other
equipment required for manufacturing of the transferred Products and to
provide these to Dade at the Brook field or any other designated facility.
3.4 Messer agrees to provide specialist personnel as appropriate to assist in
the transfer of know-how to Dade and to train Brookfield personnel either
at Brookfield or at Schwalbach as the parties may agree.
3.5 Each of the undertakings described in this Article 3 shall be billed to
Dade at the level of Messer's cost; provided, however, that the total
amount billed to Dade for the same shall not exceed $300,000, with the sole
exception that Dade shall pay for costs incurred by Messer above the
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$300,000 threshold if such additional costs are directly attributable to
Dade's failure to meet an agreed deadline pursuant to this Amendment and if
such delay has a material adverse effect on Messer's transition support
costs.
3.6 Notwithstanding the provisions of section 3.5 above, if Dade is able to
provide new business as described in Article 6 hereof, then Messer shall
absorb the costs described in sections 3.2 and 3.4 above. The costs
described in section 3.3 above shall be absorbed by Dade (subject to
section 3.5) regardless of its provision of new business as described in
Article 6.2.
3.7 Subject to Section 4.4 below, all of the transition support services
referred to in this Article 3, and the costs and obligations incurred in
connection therewith, relate exclusively to BN Prospec.
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Article 4
Ongoing Messer Obligations
4.1 Messer agrees to maintain an effective manufacturing environment that is
fully compliant with all governmental regulations in support of the
activities contemplated by the Agreement and this Amendment. To this end,
Messer guarantees that Messer's Schwalbach Plant will remain fully
operational for a period lasting at least through December 31, 2004,
provided that Dade's business with Messer amounts to at least 15 million DM
in 2003 and 10 million DM in 2004, including in each case all instrument
and parts purchases. If such levels are not maintained and Messer
therefore decides to close the Schwalbach Plant, it shall provide Dade with
prior written notice equal to the period covered by Dade's then-current
volume forecast or eighteen (18) months, whichever is shorter. In
addition, in such case, the same terms expressed in section 4.3 for
shutdown after December 31, 2004 shall apply to shutdown prior to December
31, 2004 pursuant to this section 4.1.
4.2 Regardless of volume reductions in Dade's business with Messer and
notwithstanding section 4.1 above, in no event shall the Schwalbach Plant
be closed earlier than December 31, 2003, provided that Dade's business
with Messer amounts to at least 15 million DM in 2002.
4.3 In the event of a shutdown of Messer's Schwalbach Plant after December 31,
2004, provided that manufacturing for Dade is still carried out at the
Plant, the existing terms of the Agreement, as modified by this Amendment,
regarding notification and transition support shall apply. In addition,
Messer expressly agrees and acknowledges that all costs of such shutdown
shall be at Messer's expense. Such costs include, without limitation,
payment of retention bonuses, severance, relocation costs, scrap, lease
costs, and unabsorbed overhead.
4.4 Messer agrees and guarantees to maintain a high quality of production and
continuity of supply in support of each of the activities contemplated by
the Agreement and this Amendment. Provided that Messer fails to meet its
obligations pursuant to the preceding sentence and that such failure has a
material adverse effect on the transition process or the implementation of
the Agreement as amended hereby, Dade shall have the option of transferring
any other manufacturing then carried out by Messer for Dade to any other
facility or facilities selected by Dade unless Messer is able to remedy the
situation within ninety (90) days of receipt of written notice thereof. In
such event, Messer shall be obliged to support the transfer of any Products
according to the same terms as are set forth in Article 3 with respect to
BN Prospec. With respect to its specific obligations under this section
4.4, Messer shall maintain its level of performance (including both product
delivery and field reliability) at a level at least equal with its levels
for the same quarter during 1999 (subject to the permitted monthly
deviations set forth in section 4.1 of the Agreement). It shall be Messer's
responsibility to demonstrate, at quarterly intervals, commencing three (3)
months from the date of signature of this Agreement, that its performance
post-1999 is at least equal with its performance for the respective
quarter of 1999, as approved by Dade.
4.5 Messer expressly agrees to do everything within its power to prevent any of
its obligations under the Agreement or this Amendment from being
jeopardised, compromised or unfulfilled in any way as a result of work
force, labour union, or personnel difficulties at the Messer Schwalbach
facility or any other location utilised by Messer in connection therewith.
In addition, Messer agrees, whenever a situation exists which is likely to
result in production or supply interruption, to provide Dade with written
reports summarising its current relationship with its works councils and
describing in detail the circumstances leading to such situation. Included
in each such report shall be a detailed statement by Messer regarding its
actions taken or proposed to be taken to remedy any existing or foreseen
difficulties.
4.6 In order to facilitate Dade's assessment of Messer's performance under the
Agreement as amended hereby, Messer shall, no later than three (3) business
days prior to each scheduled quarterly meeting of the parties (as the same
are provided for in section 4.1 of the Agreement), provide to Dade a
written report setting forth manufacturing details, production volume,
anticipated delays, and such other information as Dade shall request with
respect to each of the Products manufactured and/or supplied by Messer to
Dade during the immediately preceding full calendar quarter and the current
calendar quarter to date. The parties agree
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to use the occasion of their scheduled quarterly meetings to resolve any
issues identified in such reports, as well as to determine rolling
forecasts for Products in accordance with section 4.1 of the Agreement.
4.7 Messer shall maintain complete, clear and accurate books and records
documenting all activities regarding its performance under the Agreement as
amended hereby to the extent necessary to enable Dade and its auditors and
examiners to conduct audits and examinations of bills and invoices
submitted to Dade. During the term of the Agreement and for three (3)
years afterward, Dade may, upon at least two (2) weeks' written notice,
have its duly authorised representatives, agents or accountants examine
such books and records and conduct such other reasonable investigations for
the purposes of determining the accuracy of Messer's charges billed to or
paid by Dade. All such audits and examinations shall be conducted during
normal business hours and in a manner that does not unreasonably interfere
with Messer's business operations. If any such audit discloses that Messer
overbilled Dade by more than five percent (5 %) and that Dade actually paid
such excess amount, then Messer shall pay to Dade the costs of such audit
or the amount by which Messer was overpaid by Dade, whichever is greater.
4.8 Messer shall continue to be responsible for warranty costs for instruments
or parts it produces as per sections 12.2 and 12.3 of the Agreement. At
the point when Messer ceases to produce BN Prospec instruments for Dade, it
shall no longer be responsible for warranty costs for such instruments. At
the point when full manufacture of BN Prospec instruments and spare parts
transfers to Dade's Brookfield facility from Messer's Schwalbach facility,
the parties will enter into an agreement relating to Messer's obligation
for instruments and spare parts it produced through the term of the then
existing warranty period. The parties hereby agree, without now selecting
one option over the other or excluding either one of them, that the
following are to be options for such agreement:
(a) Messer continues to process all defective material under warranty
returned to it by Dade, and to repair or replace, as necessary, such
material in line with its then current practices; and
(b) At the point when its infrastructure for supporting BN Prospec is no
longer viable, Messer reimburses Dade for all warranty costs, on an event
basis or by means of lump sum payment based on an estimate of future
warranty costs jointly developed by the parties.
4.9 Whenever the quality of a Product supplied hereunder or under the Agreement
is deficient and is attributable to Messer workmanship, parts, or a Messer
supplier, Messer shall be liable to Dade therefor. Messer shall in such
case observe all of its applicable warranty obligations under the
Agreement and this Amendment.
Article 5
Excess and Obsolete Materials
5.1 As of the date of this Amendment, Dade shall be responsible for the costs
of any excess material (that is not reasonably usable) which results from
specific Dade forecasts which have turned out to be substantially greater
than actual Dade purchases from Messer.
5.2 As of the date of this Amendment, Dade shall also be responsible for
obsolescence costs which result directly from any design changes originated
by Dade and in connection with which a strategy of using up existing stock
was expressly rejected by Dade.
5.3 Dade shall only be responsible for the costs described in sections 5.1 and
5.2 above if Messer notifies Dade of such costs, and provides documentation
reasonably satisfactory to Dade in support thereof, within one hundred and
eighty (180) days of such cost occurrence.
5.4 All other costs related to excess or obsolete materials shall be borne by
Messer.
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5.5 This Amendment shall render null and void, and Messer hereby expressly
waives, any other claims by Messer against Dade for costs of excess or
obsolete material, which claims are based on facts existing or events
occurring prior to the date of this Amendment.
Article 6
New Business
6.1 Dade agrees to use its reasonable efforts to assist Messer in finding new
business for the Schwalbach Plant by acting as a reference if requested by
Messer, or by providing Messer with information about potential new
business about which Dade may become aware.
6.2 If Dade is able to provide Messer with incremental new refurb business in
an amount of US$ 1 million or more per year for the years 2001 and 2002,
then Messer agrees to absorb the full costs and expenses described in
section 3.5 hereof.
Article 7
Pricing
7.1 Messer agrees and guarantees to Dade that there shall be no increase in
prices for manufacture and supply of Products (including all Instruments,
Spare Parts, sub-assemblies and refurbs) over the prices in effect as of
the date of this Amendment until December 31, 2002. Thereafter, the
terms of the Agreement as amended by this Amendment shall apply with
respect to price adjustments.
7.2 Notwithstanding the foregoing, the existing pricing terms may be adjusted
otherwise by the parties as follows:
a. Spare Parts for BN Prospec shall be negotiated at prices lower than
those in effect currently;
b. Prices may be adjusted with respect to certain purchase discounts where
such discount is predicated on a certain purchase volume and such volume is
reduced from 2000 levels by twenty percent (20%) or more;
c. If the direct cost of Spare Parts to Messer increases due to loss of
volume discounts or end of life substitution, and such costs are proved to
be attributable to Dade, then Dade shall agree to price adjustments
proportional to such increases, until December 31, 2002, for cost increases
greater than eight percent (8%);
d. The existing volume/price reduction terms still apply for BN Prospec;
e. Prices may be increased based on documented price increases for the
purchased personal computers which accompany Dade's ordered Instruments;
f. Messer and Dade agree to continue work on value engineering and
successful results from such work shall be shared on a 50-50 basis by the
two parties;
g. Direct purchase costs may be increased in line with specific engineering
changes initiated by Dade Engineering, if such changes actually and
directly result in higher manufacturing costs. The occurrence of such
increased costs shall be determined as follows: Messer shall compile and
implement engineering changes initiated by Dade Engineering and,
periodically, negotiate increased prices with Dade's Purchasing Department
based on the collective cost increase resulting from such engineering
changes as calculated for the period in question.
Article 8
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Additional Remedies and Performance Guarantees
8.1 Messer acknowledges that one of the business objectives behind Dade's
decision to enter into this Amendment is to ensure and optimise Messer's
manufacturing and supply obligations under the Agreement. To this end, in
addition to any other remedies Dade has under the Agreement or this
Amendment, the parties agree to implement a liquidated damages program
("Liquidated Damages") in the event of Messer's failure to adequately
perform. Messer expressly agrees that Dade may exercise its right to
Liquidated Damages within six (6) months after any of the following occurs
(subject to the notice provisions of the Agreement as amended hereby),
without having to resort to or exhaust any other remedies available to it,
but only if such occurrence has a material adverse effect on the transition
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process or the implementation of the Agreement as amended hereby: if
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Messer fails to (i) implement the transition procedures set forth on
Schedule 1 hereto in the manner and by the dates specified by Dade, (ii)
manufacture and supply the sub-assemblies in accordance with Schedule 2
attached hereto, (iii) provide transitional support as specified in Article
3 hereof, (iv) observe its ongoing obligations as specified in Article 4
hereof, (v) meet its manufacturing and supply obligations as agreed by the
parties at scheduled quarterly meetings or as otherwise agreed from time to
time, (vi) observe the pricing terms agreed by the parties from time to
time, or (vii) observe the competitive constraints as specified in Article
8 hereof, then Messer shall pay to Dade as Liquidated Damages the amounts
set forth on Schedule 3 attached hereto.
8.2 In the event that Messer's failure to perform entitles Dade to invoke its
rights to Liquidated Damages, Dade may, at its option, demand payment of
the specified Liquidated Damages amounts, or offset such amounts against
any amounts otherwise due to Messer by Dade under the Agreement as amended
hereby.
Article 9
Competitive Constraints
9.1 Dade agrees to amend the existing Agreement terms regarding Messer's
obtaining business competitive to Dade (including, without limitation,
Article 8 thereof) such that Messer may obtain additional business for its
Schwalbach Plant, including business from competitors of Dade, provided
that:
a. Dade technology is not utilised in obtaining or conducting such business
without Dade's permission;
b. the terms and provisions of all existing confidentiality agreements
relating to Dade technology continue to be observed; and
c. Messer provides Dade with prior written notice of its intention to
produce for a competitor of Dade, including the identity of such competitor
and the material terms of such arrangement.
Article 10
Miscellaneous Provisions
10.1 The parties agree and acknowledge that, in connection with the execution
of this Amendment, all relevant notice and/or termination terms of the
Agreement have either been complied with or are hereby expressly waived by
each of the parties.
10.2 Sections 7.2 and 7.3 of the Agreement are hereby deleted in their
entirety. Section 7.6 shall be retained, subject to section 1.6 hereof.
Section 7.7 is deleted save for its first sentence. Section 7.1 shall be
amended such that the last sentence thereof reads as follows:
"If Dade and Messer agree to continue this Agreement beyond December 31,
2007, either party may terminate this Agreement with or without cause
thereafter with two (2) years' prior written notice to the end of a
calendar quarter and an appropriate transition plan shall be submitted by
the terminating party to the other party for negotiation."
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10.3 With respect to each of the parties, the notice provisions in section 17.2
of the Agreement shall be amended as follows:
Under "Notices to Messer", the name of the company is hereby amended to
read "Messer Cutting and Welding AG". In addition, for all Messer
addresses provided, correspondence shall be directed to the attention of
Dr. Rudiger Simonek rather than Dr. Michael Rornberg.
Under "Notices to Behring", the reference to Behring Diagnostics GmbH at
Marburg, Germany is hereby deleted. Primary notice, as opposed to copies,
shall hereafter be provided to Dade International Inc. at the Deerfield,
Illinois address already given, to the Mr. Donald Fuller, Senior Vice
President, Global Manufacturing Operations. The reference to Kirkland &
Ellis at London, England is hereby deleted and replaced by a reference to
Kirkland & Ellis at Chicago, Illinois.
10.4 Except as expressly set forth in this Amendment or as otherwise
inconsistent with the actions contemplated by this Amendment, the terms of
the Agreement shall remain unmodified and in full force and effect.
10.5 This Amendment may be executed in two or more counterparts, all of which
taken together shall constitute the same document.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
DADE BEHRING MARBURG GMBH
By: _________________________
Name: __________________
Title: __________________
MESSER CUTTING AND WELDING AG
By: ___________________________
Name: ____________________
Title: ____________________
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SCHEDULE 1
TRANSITION PROCEDURES
Transition Activity Completion Date
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1. Messer to announce BN Prospec September 30, 2000
transfer to Messer employees, including
notice to and consultation with relevant
Works Council
2. Messer to identify and announce Messer
team members October 27, 2000
3. Messer project members participate November 13, 2000
in project kick-off meeting
4. Messer ready to conduct first Brookfield November 22, 2000
assembler training at Schwalbach
5. Messer completes transfer of documentation December 1, 2000
to Brookfield per section 3.2 of Amendment
6. Messer prepared for critical evaluation of December 15, 2000
pilot builds at Schwalbach
7. Messer delivers all required BN Prospec February 2, 2001
raw materials and sub-assemblies to
Brookfield
8. Messer provides all information, documents April 8, 2001
training etc. to transfer raw material planning/
ordering responsibility to Brookfield
9. Messer completes beta-build training of May 11, 2001
Dade employees at Brookfield
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SCHEDULE 2
CATEGORY II SUB-ASSEMBLIES
Dilutor
Pipetting Systems
Sample Unit
Reagent Unit
Measuring Unit
Optics
In contrast to Category I Sub-Assemblies, the above sub-assemblies consist of
nearly 200 different designed parts. More than 130 parts are cast or molded; the
other parts come from different suppliers in Germany and Eastern Europe.
Due to the required quality, in many cases a close communication between
supplier and instrument manufacturer is mandatory.
In addition, two sub-assemblies (dilutor; optics) are also used in other
instruments (BN 2; BN 100; BCS).
VOP is approximately DM 8,000.
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SCHEDULE 3
LIQUIDATED DAMAGES
Event/Breach Damages in $US Dollars
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Failure to Implement 50,000
Transition Procedures
per Schedule 1
Failure to Comply with 20,000
Schedule 2 (Sub-Assemblies)
Failure to Provide 50,000
Transitional Support
per Article 3
Failure to Observe 50,000
Ongoing Obligations per
Article 4
Failure to Meet Supply 50,000
Obligations per Quarterly
Meetings
Failure to Observe Pricing 25,000
Terms
Failure to Observe Competitive 25,000
Constraints per Article 9
Any Other Breaches of 50,000
Agreement as Amended
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