exv10w71



 





Exhibit 10.71




FIFTH AMENDMENT TO OEM PURCHASE AGREEMENT




     This Fifth Amendment (the “Amendment”) is made as of September 7, 2007, by and between Cardiac
Science Corporation, a Delaware corporation f/k/a Cardiac Science, Inc. (“Supplier” or “Cardiac
Science” or “CSC”), a medical device developer and manufacturer of automated external
defibrillators having its principal place of business at 3303 Monte Villa Parkway, Bothell,
Washington, USA 98021, and GE Medical Systems Information Technologies, Inc., a Wisconsin
corporation d/b/a GE Healthcare (“GEMS-IT”), having its principal place of business at 8200 W.
Tower Avenue, Milwaukee, WI 53223.



W I T N E S S E T H:




     WHEREAS, CSC and GEMS-IT are parties to that certain OEM Purchase Agreement dated July 29,
2003 (“Initial OEM Purchase Agreement”), as amended by (i) Amendment One thereto dated August 10,
2004 (“Amendment One”), (ii) Second Amendment thereto dated February 14, 2005 (“Amendment Two”),
(iii) Third Amendment thereto dated June 10, 2005 (“Amendment Three”), and (iv) Fourth Amendment
thereto dated October 20, 2006 (“Amendment Four”). The Initial OEM Purchase Agreement, Amendment
One, Amendment Two, Amendment Three, and Amendment Four are collectively referred to herein as the
“OEM Purchase Agreement”.



     WHEREAS, CSC and GEMS-IT desire to supplement and further amend the OEM Purchase Agreement as
set forth herein.



     NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.





 









 





     1. Construction. Except as provided in this Amendment, the terms and conditions set
forth in the OEM Purchase Agreement shall remain unaffected by the execution of this Amendment. To
the extent any provisions or terms set forth in this Amendment conflict with the terms set forth in
the OEM Purchase Agreement, the terms set forth in this Amendment shall govern and control. Terms
not otherwise defined herein, shall have the meanings set forth in the OEM Purchase Agreement.
This Amendment amends the OEM Purchase Agreement and not that certain OEM Purchase and Supply
Agreement entered into by the parties on July 29, 2003.




2. Additional Definitions. As used herein:




“Transistor/Resistor Issue” refers to [**].




“Software Solution” refers to software developed by CSC that when loaded into the
OEM Product will alert the user that the OEM Product has failed as a result of the
Transistor/Resistor Issue. A high level description of the Software Solution is attached
hereto as Exhibit E.




“Replacement Costs” refers to the costs of replacement or repairing an OEM Product
unit damaged as a result of the Transistor/Resistor Issue, as set forth on Exhibit G.




“Supplemental Customer Instructions” refers to written instructions developed by
GEMS-IT and approved by CSC, and attached hereto as Exhibit F, which explains the
Transistor/Resistor Issue and the Software Solution to customers.



     3. Implementation of Software Solution. CSC has completed development of the Software
Solution. GEMS-IT is in the process of evaluating the OEM Products with the Software Solution,
which evaluation will include Verification and Validation Testing, a





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 









pilot test phase using up to [**] units in various locations worldwide, satisfactory
completion of a field audit of CSC’s facility in Lake Forest, California, finalization of the
Supplemental Customer Instructions, full GEMS-IT regulatory approval to release the OEM Products
for commercial sale and achievement of any other steps needed to complete the GEMS-IT Milestone
known as M-4 Qualification. The date on which all steps of this evaluation process, including
achievement of M-4 Qualification, shall have been successfully completed in their entirety shall be
designated the First Delivery Date for all purposes under the OEM Delivery Agreement.




     4. Commercial Sales. In addition to all other product literature that accompanies
each OEM Product unit, each customer shall be provided with a copy of the Supplemental Customer
Instructions. In the event any such customer advises GEMS-IT that the customer uses a Hellige
energy delivery lamp tester, GEMS-IT will offer to replace each such tester with a new tester (CS
301) at no charge to the customer. GEMS-IT and CSC will share equally (on a 50/50 basis) the cost
of each new tester, not to exceed [**] per unit, or [**] for each Party. GEMS-IT will control when
and where it is appropriate to offer to replace a Hellige tester with a new tester, but GEMS-IT
will not offer more than one new tester for each Hellige tester being replaced.



     5. Replacing Damaged Units. For OEM Product units that are reported by customers to
have been damaged as a result of the Transistor/Resistor Issue, the Parties will use the following
process:




	 	(a)	 	GEMS-IT will be responsible for all communications with the customer.







 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 











	 	(b)	 	Until cumulative Replacement Costs exceed $[**], GEMS-IT will consult with
CSC but will retain full discretion as to whether a unit should be repaired or
replaced without charge to the customer.
	 
	 	(c)	 	After cumulative Replacement Costs exceed $[**], GEMS-IT will not repair or
replace a unit without charging the customer for the full Replacement Costs unless CSC
gives its prior written consent to incurring such Replacement Costs, or, absent such
consent, if GEMS-IT elects in its sole discretion to absorb any Replacement Costs not
paid by the customer.
	 
	 	(d)	 	GEMS-IT will bear [**]% of the first $[**] of Replacement Costs, and CSC will
bear [**]%. Replacement Costs in excess of the first $[**] will be borne [**]% by
GEMS-IT and [**]% by CSC.
	 
	 	(e)	 	If customer complaints relating to the Transistor/Resistor Issue result in
repair or replacement of units at more than [**] individual customer locations
cumulatively over any two consecutive calendar quarters, then the Parties agree to
renegotiate in good faith GEMS-IT’s minimum purchase obligations under the OEM
Purchase Agreement, taking into account the impact of the Transistor/Resistor Issue.
If the Parties cannot agree on the adjusted minimum purchase obligations within 120
days after the commencement of negotiations, then either Party may initiate
arbitration proceedings pursuant to Section 21.13 of the OEM Purchase Agreement.
	 
	 	(f)	 	In the event GEMS-IT provides loaner units to customers whose units cannot be
repaired or replaced on a timely basis as reasonably determined by GEMS-IT, CSC shall
provide such loaner units at no charge to GEMS-IT or the customer.







 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 










     6. Indemnification. CSC shall defend, indemnify, and hold harmless GEMS-IT and its
Affiliates from and against any losses, expenses, and liability to third parties (including
attorney fees) for any and all claims of personal injury and/or damages arising out of the
Transistor/Resistor Issue, provided that: (a) GEMS-IT promptly notifies CSC in writing of any claim
or threatened claim against GEMS-IT and its Affiliates, provided that delay in notification shall
not affect CSC’s indemnification obligations hereunder except to the extent that such delay
prejudices CSC’s ability to defend such claim; (b) in the case of claims seeking solely monetary
relief, GEMS-IT and its Affiliates permit CSC to have sole control of the defense and settlement of
such claim or threatened claim with legal counsel selected by CSC but subject to GEMS-IT’s
approval, which will not be unreasonably withheld (provided that CSC shall not enter into any
settlement that does not include a general release of all claims against GEMS-IT and its
Affiliates, or that includes any admission of liability on the part of GEMS-IT or any of its
Affiliates, or that otherwise adversely affects GEMS-IT and its Affiliates without GEMS-IT’s prior
written consent, which shall not be unreasonably withheld, delayed or conditioned); (c) in the case
of claims seeking injunctive or other equitable relief, CSC shall not have the right to control the
defense and settlement of such claims without the consent of GEMS-IT in its sole discretion, and
GEMS-IT shall have no obligation to consent to any settlement that includes injunctive relief
applicable to GEMS-IT or any of its Affiliates and (d) GEMS-IT and its Affiliates reasonably
cooperate with CSC in connection with such matters,. The indemnification provided in this Section
shall not apply to any claim to the extent it results from any modifications of the OEM Products
made by GEMS-IT or any third party without CSC’s authorization or consent. CSC’s agreement to
provide a defense under this Section





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 









includes the hiring of counsel; therefore, costs and expenses to be borne by CSC do not
include separate attorneys’ fees incurred by GEMS-IT and its Affiliates in defense of any claim
after CSC has acknowledged its indemnification obligation with respect to such claim and has
properly assumed the defense thereof in accordance with the terms hereof, or unless CSC has
requested in writing the additional assistance of counsel.




     7. Revised Pricing. Exhibit C as attached to Amendment Four is hereby superseded and
replaced by the revised Exhibit C attached hereto.



     8. Governing Law. The validity, construction, performance and enforceability of this
Amendment shall be governed in all respects by the laws of the State of New York, without reference
to the choice-of-law provisions thereof.



     9. Counterparts; Facsimile. This Amendment may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Execution and delivery of this Amendment by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and
binding execution and delivery of this Amendment by such party. Such facsimile copies shall
constitute enforceable original documents.



     10. Severability. In the event any provision of this Amendment shall be determined to
be invalid or unenforceable under applicable law, all other provisions of this Amendment shall
continue in full force and effect unless such invalidity or unenforceability causes substantial
deviation from the underlying intent of the parties expressed in this Amendment or unless the
invalid or unenforceable provisions comprise an integral part of, or in inseparable from, the
remainder of this Amendment. If this Amendment continues in full force and effect as provided
above, the parties shall replace





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 









the invalid provision with a valid provision which corresponds as far as possible to the
spirit and purpose of the invalid provision.




     11. Interpretation. This Amendment has been negotiated at arm’s length and between
persons sophisticated and knowledgeable in the matters dealt with in this Amendment. Each party
has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law
or legal decision that would require interpretation of any ambiguities in this Amendment against
the party that has drafted it is not applicable and is waived. The provisions of this Amendment
shall be interpreted in a reasonable manner to effect the purposes of the parties and this
Amendment.



     12. Entire Agreement. The terms of this Amendment are intended by the parties to be
the final expression of their agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties further intend
that this Amendment constitute the complete and exclusive statement of its terms and shall
supersede any prior agreement with respect to the subject matter hereof.



     13. Headings. The article and section headings contained in this Amendment are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Amendment.


      IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their
thereunto duly authorized representatives as of the date first above written.





	 	 	 	 	 	 	 	 	 
	Cardiac Science Corporation	 	GE Medical Systems
Information Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Allan Criss
	 	By:
	 	/s/ Matthias Weber	 	 
	 

	 	 
	 	 	 	 	 	 
	Name: Allan Criss	 	Name: Matthias Weber	 	 
	Title: Senior Vice
President, Sales, Marketing and
Service, North America	 	Title	 	: Vice President & General Manager
Cardiology Systems	 	 








 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 










Exhibit C




Supplier’s Prices




	 	 	 	 	 
	 	 	Responder 2000	 	Powerheart ECD
	GEMS-IT OEM Products	 	Price	 	Price
	 	 	 
	OEM Product basic version package

	 	$[**]
	 	$[**]
	 
	OEM Product pacing version package

	 	$[**]
	 	$[**]
	 
	OEM Product pacing & SpO2 version package

	 	$[**]
	 	$[**]






Each Responder 2000 package includes one (1) each of:





	 	•	 	OEM Product defibrillator
	 
	 	•	 	Pair of external defibrillation paddles
	 
	 	•	 	Rechargeable battery
	 
	 	•	 	Roll of Thermal Paper
	 
	 	•	 	User Manual





Each Powerheart ECD package includes one (1) each of:




	 	•	 	OEM Product defibrillator
	 
	 	•	 	Pair of external defibrillation paddles
	 
	 	•	 	Power Cord
	 
	 	•	 	Rechargeable battery
	 
	 	•	 	Roll of Thermal Paper
	 
	 	•	 	User Manual





Powerheart ECD pricing includes provision of a [**] year warranty, while Responder 2000 pricing
includes provision of a [**] year warranty.



Powerheart ECD pricing includes a $[**] Kitting Fee for Supplier stocking and kitting of optional
accessories to be bundled with the OEM Product package. This Kitting Fee is included in the
Powerheart ECD price regardless of whether a specific purchase order requires optional accessories.
Optional accessories are to be purchased from the GEMS-IT approved suppliers at GEMS-IT pricing
and inventoried at the Supplier. These accessories will be listed on the Purchase Order from
GEMS-IT at the time of customer order and Supplier will be reimbursed for the cost of the items,
without additional mark-up, according to the terms and conditions of the agreement. At its sole
discretion, GEMS-IT may choose to take over this kitting responsibility from Supplier after first
giving Supplier (90) days notice of its intent, at which time the Kitting Fee would be





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 









removed from the Powerheart ECD product price. Kitting of optional accessories is not provided by
Supplier for the Responder 2000.




Responder 2000 Power Cords will be purchased by GEMS-IT from the Supplier, at a price of $[**]
each. Responder 2000 Power Cord purchase orders will be placed as bulk orders separate from OEM
Product purchase orders. Kitting of the correct power cord for a Responder 2000 customer order will
be the responsibility of GEMS-IT.





 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.






 









 








Exhibit E




High Level Description of Software Solution



See attached document entitled “Exhibit E — Overview”. References in the attachment to “Responder
2000” or “R2K” shall include all OEM Products.






 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 










Exhibit E — Overview




[**]






 




			
	[**]	 	Designates information (3 pages) that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested with respect to
the omitted portions.






 









 








Exhibit F




Supplemental Customer Instructions



See attached documents entitled “Technical Bulletin” and “Additional Information for Pilot Shipment
Customers”. References in the attachment to “Responder 2000” shall include all OEM Products.






 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.






 









 








Technical Bulletin




[**]






 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 











Additional Information for Pilot Shipment Customers




			
	

	

 
	 	GE Medical Systems

Information Technologies






Additional information for Pilot Shipment Customers




Keep this with your Operator’s Manual Responder 2000 (2026116-001, -008)

(English / German)




ECG Monitoring



PRECAUTION: Electrosurgery equipment may cause interference in the Responder 2000 if
operated on or nearby the patient. Disconnect Responder 2000 from the patient before using
electrosurgery equipment.



Printing



Storage Instructions for GE Thermal Recording Paper 2026327-001



To avoid deterioration or fading of patient data and traces, follow these precautions:





	-	 	Store in cool, dark and dry locations.
	 
	 	 	Temperature must be below 77°F (25°C). Relative humidity must be between 45% and 65%.
	 
	-	 	Avoid exposure to bright light or UV sources such as sunlight, fluorescent, and
similar lighting.
	 
	-	 	Store separately in manilla folder to assure maximum trace and patient data image life.
	 
	-	 	Do not store with carbon and carbon- less forms, plastic document protectors, or
pressure sensitive tapes or labels.





The image lifetime under these conditions is 5 years.



Recommended Maintenance and Care



Safety Technical Inspections



The manufacturer of the Responder 2000 does not require periodic inspection nor maintenance of the
product in addition to that indicated in the Operators Manual. However, local regulations may
require periodic inspection and maintenance of such medical devices.



To assist in meeting these requirements, inspection and maintenance of the Responder 2000 can be
carried out by GE Medical Systems within the framework of a service contract.






 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.




 









 











PRECAUTION: Do not shock into devices with highly non-linear resistance versus the voltage, (e.g.
an overvoltage protector). This may damage the Responder 2000.

Do not use the HELLIGE Test Lamp 301 495 00 for testing. This test lamp includes an overvoltage protector. Shocking into it may damage the Responder 2000.



HELLIGE Test Lamp




Contact Information / Customer Service




Responder 2000 is manufactured by:

Manufacturing: Cardiac Science Corporation

500 Burdick Parkway

Deerfield, WI 53531, USA




Authorized European Representative:

MDSS GmbH

Schiffgraben 41

D-30175 Hannover

Germany

Tel: +49 511 62 62 86 30

Fax: +49 511 62 62 86 33






   0086




Distributor:

GE Medical Systems Information Technologies, Inc.

8200 West Tower Avenue, Milwaukee, WI 53223 USA

Tel.: 800 558 7044 (USA only)

Fax: 800 421 6841

Canada Tel: 800 668 0732




GE Medical Systems Information Technologies GmbH

Munzinger Str. 3, D-79111 Freiburg, Germany

Tel.: +49 761 4543 0

Fax: +49 761 4543 233






 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.






 









 








Exhibit G




Replacement Costs




Replacement Costs are as follows:




Domestic Customers (located in the United States and Canada)





	 	•	 	$[**] per unit for each domestic unit repaired plus up to 11/2 (1.5) hours of labor at
CSC’s prevailing hourly rate (currently $[**] per hour).
	 
	 	•	 	$[**] per unit for each unit replaced.
	 
	 	•	 	Costs associated with shipping the repaired or replaced unit from CSC back to GEMS-IT
at any location designated by GEMS-IT.
	 
	 	•	 	$[**] per unit for costs incurred by GEMS-IT for shipping units to and from the
customer location and to CSC, handling and other logistics.





International Customers





	 	•	 	$[**] per unit for each international unit repaired. For all international repairs, CSC
will ship the part (Item #2029882-001 — “Therapy Board with Cable Kit”) to GEMS-IT and
GEMS-IT will be responsible for performing the repair service with up to 11/2 (1.5) hours of
labor at GEMS-IT’s prevailing hourly rate (currently €[**] per hour).
	 
	 	•	 	$[**] per unit for each unit replaced.
	 
	 	•	 	Costs associated with shipping the repaired or replaced unit from CSC back to GEMS-IT
at any location designated by GEMS-IT.
	 
	 	•	 	$[**] per unit for costs incurred by GEMS-IT for shipping units to and from the
customer location and to CSC, handling and other logistics.







 




			
	[**]	 	Designates information that has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.