Exhibit 4
AMENDMENT NO. 1
TO THE STOCK AND ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 dated August 6, 1999 (this "AMENDMENT"), among
SmithKline Xxxxxxx plc, a public limited company organized under the laws of
England ("SELLER"), SmithKline Xxxxxxx Corporation, a Pennsylvania corporation
and an indirect wholly owned subsidiary of Seller ("SELLER SUBSIDIARY"), and
Quest Diagnostics Incorporated, a Delaware corporation ("BUYER"), to the Stock
and Asset Purchase Agreement dated as of February 9, 1999 (the "AGREEMENT")
among Seller, Buyer and, for purposes of Articles IX, XI and XIII of the
Agreement only, Seller Subsidiary. Capitalized terms used herein without
definition have the meanings assigned to them in the Agreement.
WHEREAS, pursuant to Section 13.02 of the Agreement, the
Agreement may be amended by a written amendment signed by Seller, Seller
Subsidiary and Buyer; and
WHEREAS, Seller, Seller Subsidiary and Buyer wish to amend the
Agreement as to certain of its provisions, as specified herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, Seller, Seller Subsidiary
and Buyer hereby agree to amend the Agreement as follows:
SECTION 1. AMENDMENT TO SECTION 1.01(A). (a) Section 1.01(a)
hereby amended by deleting the definition of "Intellectual Property Agreements"
therefrom.
(b) Section 1.01(a) is hereby further amended by deleting the
definition of "License Agreement" therefrom and replacing it with the following
definition:
""LICENSE AGREEMENT" means the Names License Agreement
attached hereto as Exhibit G."
(c) Section 1.01(a) is hereby further amended by deleting the
definition of "Data Access Agreement" therefrom and replacing it with the
following definition:
""DATA ACCESS AGREEMENT" means the Category One Laboratory
Data Access Agreement, the Category Three Laboratory Data Access
Agreement, the Participation Agreement and the Encoding Letter
Agreement, in the form attached hereto as Exhibits B-1 through B-4,
respectively, and any related letter agreements.
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SECTION 2. AMENDMENT TO SECTION 2.01(C)(III). Section
2.01(c)(iii) is hereby amended by deleting "Non-U.S. Leased Property" therefrom
and replacing it with "Non-U.S. Leased Real Property".
SECTION 3. NEW SECTION 2.03(D). A new Section 2.03(d) is
hereby added to read as follows:
"(d) At Closing (i) Seller and Buyer shall each execute (A) a
copyright license agreement (the "COPYRIGHT LICENSE AGREEMENT"), in the
form attached hereto as Exhibit F-1, and (B) a trademark license
agreement (the "TRADEMARK LICENSE AGREEMENT"), in the form attached
hereto as Exhibit F-2 and (ii) Seller shall deliver to Buyer (A) a
copyright assignment (the "COPYRIGHT ASSIGNMENT"), in the form attached
hereto as Exhibit F-3, (B) a patent assignment (the "PATENT
ASSIGNMENT"), in the form attached hereto as Exhibit F-4, and (C)
trademark assignments (the "TRADEMARK ASSIGNMENTS"), in the forms
attached hereto as Exhibits F-5 through F-9 (the Trademark Assignments,
collectively with the Copyright License Agreement, the Trademark
License Agreement, the Copyright Assignment and the Patent Assignment,
are referred to herein as the "INTELLECTUAL PROPERTY AGREEMENTS")."
SECTION 4. NEW SECTION 2.04(D). A new Section 2.04(d) is
hereby added to read as follows:
"(d) Buyer agrees to fund the employer contribution which
would have otherwise been paid into Seller's 401(k) Plan, into Buyer's
401(k) Plan, for the first payroll paid to Continued Employees
subsequent to the Closing Date; PROVIDED that Seller shall accrue such
liability and such liability shall be included in the Statement of Net
Worth."
SECTION 5. AMENDMENT TO SECTION 3.17. Section 3.17 is amended
hereby by inserting "(a)" after "Employees." and before "Except".
SECTION 6. AMENDMENT OF SECTION 3.20. Section 3.20 is hereby
amended to add the following sentence to the end of such Section:
"Notwithstanding the foregoing, Seller makes no
representations or warranties with respect to the Names."
SECTION 7. NEW SECTION 3.22. A new Section 3.22 is hereby
added to read as follows:
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"SECTION 3.22. DISCLOSURE SUPPLEMENT. (a) Seller hereby
delivers to Buyer a supplement to the Seller Disclosure Schedule (the
"SELLER DISCLOSURE SUPPLEMENT"), in the form attached hereto. The
Seller Disclosure Supplement shall amend the Seller Disclosure Schedule
and such amendment shall be effective as of February 9, 1999. Each
reference to the Seller Disclosure Schedule in the Agreement shall be
deemed to refer the Seller Disclosure Schedule as amended and
supplemented by the Seller Disclosure Supplement."
(b) Buyer hereby delivers to Seller a supplement to the Buyer
Disclosure Schedule (the "BUYER DISCLOSURE SUPPLEMENT"), in the form
attached hereto. The Buyer Disclosure Supplement shall amend the Buyer
Disclosure Schedule and such amendment shall be effective as of
February 9, 1999. Each reference to the Buyer Disclosure Schedule in
the Agreement shall be deemed to refer the Buyer Disclosure Schedule as
amended and supplemented by the Buyer Disclosure Supplement."
SECTION 8. AMENDMENT TO SECTION 5.02(K). Section 5.02(k) is
hereby amended by inserting ", for each such individual lease," after the word
"which".
SECTION 9. AMENDMENT TO SECTION 5.11(A). (a) Section 5.11(a)
is hereby amended by deleting "Exhibit 5.11(a)" therefrom and replacing it with
"Section 5.11(a) of the Seller Disclosure Schedule".
(b) Section 5.11(a) is hereby further amended by deleting
"Section 5.13(a)" therefrom and replacing it with "Section 5.11(a)".
SECTION 10. NEW SECTION 5.13. A new Section 5.13 is hereby
added to read as follows:
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"SECTION 5.13. NO SOLICITATION. Seller shall not, and shall
not permit its Affiliates to, directly or indirectly, (a) prior to the
second anniversary of the Closing Date, induce or attempt to induce any
officer or employee to leave the employ of Buyer, the Company or the
Company Subsidiary or violate the terms of their contracts, or any
employment arrangements, with Buyer, the Company or the Company
Subsidiary or (b) hire or employ any (i) Senior Level Employee or any
Continued Employee who is a sales manager of the Business prior to the
second anniversary of the Closing Date, or (ii) Continued Employee who
is primarily engaged in providing information technology services and
is either a vice president or a participant in Seller's MRI Programme
("IT PERSONNEL") for the period beginning as of the Closing Date and
ending on December 31, 2000. Notwithstanding the foregoing, the
limitations set forth in this Section 5.13 shall not apply to the
inducement, attempted inducement, hiring or employment of any Person
other than any Senior Level Employee, sales manager or member of IT
Personnel, who responds to a BONA FIDE advertisement placed in general
circulation and which is not targeted at any of the Persons to whom
Section 5.13(a) or (b) would otherwise apply."
SECTION 11. AMENDMENT TO SECTION 6.07. Section 6.07 is hereby
amended by adding the following sentence to the end thereof:
"Seller makes no representations or warranties with respect to
the Names."
SECTION 12. AMENDMENT TO SECTION 7.09(A). Section 7.09(a) of
the Agreement is hereby amended by deleting "$1.0 billion" therefrom and
replacing it with "$980 million".
SECTION 13. AMENDMENT TO SECTION 7.09(A). Section 7.09(a) is
hereby amended by adding the following sentence between the first and second
sentences thereof:
"For the avoidance of doubt, a subletting of the property
identified as item 2 of Section 7.09 of the Seller Disclosure Schedule
for the same term and on substantially the same economic terms as the
existing lease shall fully satisfy Seller's obligations under this
Section 7.09(a) with respect to such property."
SECTION 14. AMENDMENT TO SECTION 8.14. Section 8.14 is hereby
amended by adding "Except as provided in Note 18 of Exhibit A of the Transition
Services Agreement," to the beginning of the second sentence thereof.
SECTION 15. AMENDMENT TO SECTION 8.15. Section 8.15 is hereby
deleted in its entirety and replaced with a new Section 8.15 to read as follows:
"SECTION 8.15. MRI BONUSES. (a) With respect to Seller's
Millennium Retention Initiative Programme ("SELLER'S MRI PROGRAMME"),
Buyer shall establish,
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effective as of the Closing, a plan replicating all of the terms of the
Seller's MRI Programme as in effect on the date hereof (other than the
share option component of Seller's MRI Programme, which Buyer shall
have no obligation to replicate) to the extent necessary to comply with
the provisions of this Section 8.15 ("BUYER'S MRI PROGRAMME"). Buyer
shall pay to eligible Continued Employees all annual cash awards earned
in respect of 1998 and 1999 to the extent reflected on the Closing Date
Balance Sheet and not paid by Seller prior to the Closing. The
determination of whether the annual cash awards in respect of 1999 have
been earned will be determined by Buyer in accordance with the terms of
the Buyer's MRI Programme which replicate the applicable terms of
Seller's MRI Programme as in effect on the date hereof.
(b) With respect to the Year 2000 award payable under Seller's
MRI Programme in 2000 which is funded, in part, through share options
(the "YEAR 2000 AWARD"), eligible Continued Employees will forfeit the
Year 2000 Award as of the Closing; PROVIDED, HOWEVER, that the Buyer
shall provide a payment to such eligible Continued Employees in respect
of the cash and share option components of their forfeited Year 2000
Awards, and Seller will reimburse Buyer for any such payment made to
eligible Continued Employees, as provided hereinbelow. Buyer will cause
the Company to establish a cash award initiative under Buyer's MRI
Programme which will replicate the Year 2000 Award (the "SUBSTITUTE
YEAR 2000 AWARD"). Buyer will make all determinations with respect to
whether the applicable performance criteria in respect of the
Substitute Year 2000 Awards have been achieved as of the end of the
performance period (applying the same performance criteria set forth in
Seller's MRI Programme as in effect as of the date hereof), subject to
Buyer's consultation with the chief information officer of Seller
before finalizing such determinations. Seller shall reimburse Buyer for
a portion of the amount paid by Buyer to eligible Continued Employees
in respect of the Substitute Year 2000 Awards, as follows:
(i) In respect of the cash component of the forfeited
Year 2000 Award, Seller shall reimburse Buyer for a
proportional share of the cost of the cash component of the
Substitute Year 2000 Award based upon the portion of the
aggregate annual cash awards for 1997, 1998 and 1999 under the
Seller's MRI Programme (the "THREE MRI ANNUAL AWARDS") and
Buyer's MRI Programme that were either paid by Seller or
accrued on the Closing Date Balance Sheet (based upon a
calendar year accrual for bonuses paid or payable in 1997,
1998 and 1999 and prorated for 1999 based upon the assumption
that 50% of the 1999 annual cash award was paid or accrued by
Seller)) as a percentage of the aggregate Three MRI Annual
Awards which are paid, respectively, by the Seller and Buyer
under such Programmes.
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(ii) Seller shall reimburse Buyer for an amount equal
to the product of (x) multiplied by (y), where (x) is an
amount equal to the excess, if any, by which the aggregate
value of the share option component of the Year 2000 Awards
under the Seller's MRI Programme for eligible Continued
Employees on the date that the execution of this Agreement is
publicly announced by the Seller, based upon the closing price
per share for Parent's American Depository Receipts as
reported on such date on the New York Stock Exchange, exceeds
67% of the aggregate Three MRI Annual Awards, and where (y)
equals 0% (if the level 1 performance threshold is not
achieved) 50% (if only the level 1 performance is achieved) or
100% (if the level 2 performance threshold is achieved) as
determined by Buyer (after consultation with Seller, as
provided hereinabove) in respect of the Substitute Year 2000
Awards.
(iii) The allocation of the cost of Year 2000 Awards
and Substitute Year 2000 Awards is set forth in Section 8.15
of the Seller Disclosure Schedule. To the extent there is any
inconsistency between the language set forth in this Section
8.15 and the allocation set forth in Section 8.15 of the
Seller Disclosure Schedule, the latter shall govern."
SECTION 16. NEW SECTION 8.16. A new Section 8.16 is hereby
added to read as follows:
"Promptly after the Closing, but in any event within sixty
days following the Closing Date, Buyer shall cause SBCL to pay all
amounts earned through the Closing to all of the Continued Employees in
accordance with all variable compensation plans maintained by Seller or
any of its Affiliates for the benefit of the Continued Employees
immediately prior to the Closing including, but not limited to, those
items listed in Section 3.13 of the Seller's Disclosure Schedule. In
order to effect such payment, Seller shall be responsible for the
administration of such bonus payments, including the preparation and
distribution of any communications, the calculation of such bonus
payments and shall provide Buyer a copy of all such communications and
the basis for calculations. The aggregate gross amount of such
payments, and other amounts accruing as a result of such payments
(including payroll taxes and employer matches under the 401(k) or other
plans) shall be accrued and reflected as a liability on the statement
of Consolidated Tangible Net Worth of the Business as of the Closing
Date."
SECTION 17. AMENDMENT TO SECTION 9.12(H). Section 9.12(h) is
hereby amended by deleting the reference to "paragraph (h)" from the second
sentence thereof and replacing it with "paragraph (g)".
7
SECTION 18. AMENDMENT TO SECTION 9.12(I). Paragraph (i) of
Section 9.12 of the Agreement is hereby amended and restated in its entirety to
read as follows:
"(i) In order to allow Buyer to make proper payments of quarterly
estimated U.S. federal, state and local Taxes, and proper payments in
connection with extensions of time to file U.S. federal, state and
local Tax Returns, on behalf of the Buyer Group (including the Company
and the Company Subsidiary) for taxable periods (or portions thereof)
ending after the Closing Date (such quarterly payments and extension
payments hereinafter are referred to as "Post-Closing Estimated
Taxes"), Seller and Seller Subsidiary estimate that, following the
Closing Date, the Company and the Company Subsidiary will be required
by U.S. federal income Tax law to report no more than $159,755,404 of
net Code Section 481 adjustments attributable to (x) the enactment of
Code Section 475(c)(4) and Section 7003(c)(2) of the IRS Restructuring
and Reform Act of 1998 and (y) the Company Subsidiary's applications
for a change in accounting method with respect to accounts receivable
to be effective beginning with the 1998 taxable year of the Company
Subsidiary (the "Estimated Adjustments"), and that the Company and the
Company Subsidiary will carry forward $0 of net operating losses from
Pre-Closing Tax Periods to Post-Closing Tax Periods (the "Estimated
NOLs"). Following the Closing Date, when necessary or appropriate,
Seller Subsidiary will notify Buyer, in writing, of any changes in the
amounts of the Estimated Adjustments and the Estimated NOLs, and of any
compensation deductions believed to be available to the Company or the
Company Subsidiary in respect of the exercise of options on Seller
Shares (the "Estimated Compensation Deductions"), and Seller Subsidiary
will provide Buyer with reasonable documentation in support of such
changes and the Estimated Compensation Deductions. Within 30 days prior
to each due date prescribed by the Code for the payment of Post-Closing
Estimated Taxes for a Post-Closing Tax Period with respect to which the
Estimated Adjustments exceed the sum of the Estimated NOLs and the
Estimated Compensation Deductions, Buyer shall provide Seller
Subsidiary with preliminary calculations, and within 10 days prior to
each such due date, Buyer shall provide Seller Subsidiary with final
calculations (in each case, with reasonable supporting documentation),
of (a) the Post-Closing Estimated Taxes payable for the applicable
period and (b) the amount of such Taxes attributable to the Estimated
Adjustments, the Estimated NOLs and the Estimated Compensation
Deductions (the "Relevant Estimated Taxes"). For purposes of such
calculations, Buyer and Seller Subsidiary agree that (a) except with
respect to payments made in connection with extensions of time to file,
Buyer will use the annualized income method under Section 6655 of the
Code (and, where available, under any similar provision of state or
local Tax law) to the extent that Buyer reasonably determines that such
method would reduce the amount of Post-Closing Estimated Taxes payable
for any applicable period, and (b) Buyer's final calculations of the
Relevant Estimated Taxes will be determined with reference to Buyer's
actual U.S.
8
federal Tax liability and an estimate of Buyer's state and local Tax
liability using the combined effective state and local Tax rate for the
Company and the Company Subsidiary in jurisdictions where they file on
a stand-alone basis, and the combined effective state and local Tax
rate of the Buyer Group in jurisdictions where the Company and the
Company Subsidiary file on a consolidated, combined or unitary basis
with other members of the Buyer Group, in each case calculated taking
into account the benefit of deducting state and local Taxes from
federal income Tax . Buyer and Seller Subsidiary agree to negotiate in
good faith to resolve any disputes with respect to the amounts of the
Estimated Adjustments, the Estimated NOLs and the Estimated
Compensation Deductions, and with respect to calculations of the
Post-Closing Estimated Taxes and the Relevant Estimated Taxes. In the
event that any disputes remain unresolved after such negotiations, then
for purposes of this Section 9.12(i), the determination of Seller
Subsidiary shall be final with respect to disputes relating to the
Estimated Adjustments, the Estimated NOLs and the Estimated
Compensation Deductions, and the determination of Buyer shall be final
with respect to all other matters relating to calculations of the
Post-Closing Estimated Taxes and the Relevant Estimated Taxes, provided
that Seller Subsidiary shall indemnify Buyer for interest and penalties
that are payable by Buyer (or any of its Subsidiaries) to the Internal
Revenue Service or other relevant Taxing authority and that are
attributable to a material error or omission in such a final
determination of Seller Subsidiary, and Buyer shall pay to Seller
Subsidiary interest at the "underpayment rate" (as defined in Section
6621 of the Code) on any overpayments that are made by Seller
Subsidiary to Buyer under this Section 9.12(i) that are attributable to
a material error or omission in such a final determination of Buyer
(which interest, for purposes of clarification, shall run from the date
of Seller Subsidiary's overpayment to Buyer to the date on which such
overpayment is reimbursed from Buyer to Seller Subsidiary or is
credited against other amounts owing from Seller Subsidiary to Buyer
under this Section 9.12). Within 7 days following its receipt of
Buyer's final calculations of Post-Closing Estimated Taxes and Relevant
Estimated Taxes for any applicable period (but in no event earlier than
3 days prior to the due date prescribed by the Code for the
Post-Closing Estimated Taxes to which such final calculations relate),
Seller Subsidiary shall remit payment to Buyer of the lesser of (a) the
Post-Closing Estimated Taxes and (b) the Relevant Estimated Taxes, as
determined hereunder for the applicable period. Payments by Buyer and
Seller Subsidiary pursuant to this Section 9.12(i) shall be taken into
account in determining amounts due to Buyer (as a reduction therein),
or amounts due from Buyer (as an addition thereto), under paragraph (f)
of this Section 9.12."
SECTION 19. NEW SECTION 9.12(K). A new Section 9.12(k) is
hereby added to read as follow:
"(k) If the Company Subsidiary's applications for a change in method of
accounting with respect to accounts receivable (to be effective
beginning with the 1998 taxable year
9
of the Company Subsidiary) remain pending with the Internal Revenue
Service as of the Closing Date (the "Pending Applications"), then both
Seller Subsidiary and Buyer shall have the right to participate in the
conduct of all subsequent matters relating to the Pending Applications
(including, but not limited to, discussions and negotiations with the
Internal Revenue Service and the filing of revisions to the Pending
Applications to reflect the transactions contemplated by this
Agreement). In connection therewith, Seller Subsidiary and Buyer shall
keep each other reasonably informed of any developments relating to the
Pending Applications, and shall provide such cooperation as may be
reasonably requested by the other party (including, but not limited to,
providing copies of any correspondence received by or submitted to the
Internal Revenue Service, granting access to the accountants and other
professionals that were involved in the preparation of the Pending
Applications and executing powers of attorney to authorize the
designation of representatives selected by the other party). All final
decisions with respect to the Pending Applications shall be made by
Seller Subsidiary with the consent of Buyer (which consent shall not be
unreasonably withheld). Seller and Seller Subsidiary acknowledge that,
in the event that the Pending Applications are withdrawn, denied or
otherwise terminated after the Closing Date, Buyer shall have the
right, in its sole discretion, to file, or to cause the Company or the
Company Subsidiary to file, new applications for a change in the
Company Subsidiary's method of accounting for accounts receivable
(which new applications may or may not be based upon the same facts and
supporting information as the Pending Applications)."
SECTION 20. AMENDMENT TO SECTION 11.02(A)(V). Section
11.02(a)(v) is hereby amended by deleting the "." at the end of Section
11.02(a)(v) and replacing it with "; or".
10
SECTION 21. NEW SECTION 11.02(A)(VI). Section 11.02(a) is
hereby amended by adding thereto a new Section 11.02(a)(vi) to read as follows:
"(vi) any Action, matter or claim (including, but not limited
to, medical professional liability) both (x) arising out of or relating
to the conduct or actions or failure to act prior to the Closing of Xx.
Xxxxxx Xxxxxx while working for or on behalf of Seller, Seller
Subsidiary, the Company or any other subsidiary or affiliate of Seller
and (y) relating to any actual or alleged effect on or the state of the
health (including emotional well-being) of patients of the Company or
any subsidiary of the Company (whether or not any such Action, matter
or claim is pending as of the Closing); PROVIDED that Seller shall not
have any liability hereunder for (1) consequential, punitive, indirect,
special or incidental damages incurred by any Buyer Indemnified Party
(including, without limitation, additional economic losses incurred by
a Buyer Indemnified Party as a result of a change in industry
conditions or practice or in applicable law or regulation) other than
consequential, punitive, indirect, special or incidental damages
actually paid to any third party by such Buyer Indemnified Party, (2)
Losses related to patient counseling, testing and/or treatment programs
voluntarily offered by a Buyer Indemnified Party, solely after the
Closing Date, that are not approved by Seller, (3) except to the extent
such employees' services are requested by Seller, employee compensation
and overhead costs related to time spent by a Buyer Indemnified Party
and its employees in responding to, or in assisting Seller in its
management of, matters (other than Actions or claims) arising from Xx.
Xxxxxx'x conduct and (4) employee compensation and overhead costs
related to time spent by a Buyer Indemnified Party and its employees
responding to any Action or claim related to Xx. Xxxxxx'x conduct."
SECTION 22. AMENDMENT TO SECTION 11.03(A)(III). Section
11.03(a)(iii) is hereby amended by deleting "Assumed Liabilities" therefrom and
replacing it with "Assumed Non-U.S. Liabilities".
SECTION 23. AMENDMENT TO SECTION 12.02(B). (a) Section
12.02(b) is hereby amended by deleting the reference to "Section 6.02" therefrom
and replacing it with "Section 6.03".
(b) Section 12.02(b) is hereby further amended by deleting the
reference to "Section 6.11(e)" therefrom and replacing it with "Section
6.11(d)".
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SECTION 24. AMENDMENT TO SECTION 13.03. Section 13.03 is
hereby deleted in its entirety and replaced with a new Section 13.03 to read as
follows:
"This Agreement and the rights and obligations hereunder shall not be
assignable or transferable by Buyer, Seller or Seller Subsidiary (other
than by operation of law in connection with a merger, or sale of
substantially all the assets, of Buyer, Seller or Seller Subsidiary)
without the prior written consent of the other parties hereto;
PROVIDED, HOWEVER, that Buyer may assign its right to purchase the
Shares and the Other Assets hereunder to a wholly owned subsidiary of
Buyer without the prior written consent of Seller or Seller Subsidiary;
PROVIDED FURTHER, that Buyer may assign its right to receive monetary
indemnification (but no other rights, including procedural rights or
rights to control, approve or participate in litigation or settlement
negotiations) under Article XI to a third party to the extent necessary
or desirable to obtain the Financing or any replacement financing
following the Closing without the prior written consent of Seller or
Seller Subsidiary; PROVIDED FURTHER, HOWEVER, that no assignment shall
limit or affect the assignor's obligations hereunder. Any attempted
assignment in violation of this Section 13.03 shall be void."
SECTION 25. AMENDMENT TO EXHIBIT B. Exhibit B of the Agreement
is hereby deleted in its entirety and replaced with the Exhibit B containing the
following documents in the forms attached hereto:
Exhibit B-1: Category One Laboratory Data Access Agreement
Exhibit B-2: Category Three Laboratory Data Access Agreement
Exhibit B-3: Participation Agreement
Exhibit B-4: Encoder Letter Agreement
SECTION 26. AMENDMENT TO EXHIBIT C. Exhibit C of the Agreement
is hereby deleted in its entirety and replaced with the Exhibit C attached
hereto.
SECTION 27. AMENDMENT TO EXHIBIT E. Exhibit E of the Agreement
is hereby deleted in its entirety and replaced with the Exhibit E attached
hereto.
SECTION 28. NEW EXHIBIT F. A new Exhibit F to the Agreement is
hereby added, containing the following documents in the forms attached hereto:
Exhibit F-1: Copyright License Agreement
Exhibit F-2: Trademark License Agreement
Exhibit F-3: Copyright Assignment
Exhibit F-4: Patent Assignment
Exhibit F-5: Trademark Assignment
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Exhibit F-6: Trademark Assignment
Exhibit F-7: Trademark Assignment
Exhibit F-8: Trademark Assignment
Exhibit F-9: Trademark Assignment
SECTION 29. NEW EXHIBIT G. A new Exhibit G containing the
License Agreement to the Agreement is hereby added in the form of Exhibit G
attached hereto.
SECTION 30. INTERPRETATION. Seller and Buyer acknowledge that
earlier drafts of this Amendment contained proposed language that was not
included in this Amendment. Seller and Buyer agree that no evidentiary weight or
value regarding the intent of the parties hereto with respect to the
interpretation of the Agreement shall be attributed to the non-inclusion of such
language. After giving effect to this Amendment, all references in the Agreement
to the "date hereof", the "date of this Agreement" and any similar reference
shall continue to refer to February 9, 1999, unless otherwise expressly provided
in this Amendment.
SECTION 31. EFFECT ON AGREEMENT. Except as amended hereby, the
provisions of the Agreement are and shall remain in full force and effect.
SECTION 32. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State other than
Section 5-1401 of the New York General Obligations Law.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the date first written above.
SMITHKLINE XXXXXXX PLC,
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
QUEST DIAGNOSTICS INCORPORATED,
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
With respect to the amendments to
Articles IX, XI and XIII only,
SMITHKLINE XXXXXXX CORPORATION,
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
