AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT AND AMENDMENT NO. 1 TO RESEARCH AND DEVELOPM ENT AGREEMENT
Exhibit 10.4
AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT AND AMENDMENT NO. 1 TO RESEARCH AND DEVELOPM ENT AGREEMENT
This is Amendment No. 1 dated January 28, 2015 by and between Point Medical, Inc., a Delaware corporation (“PMI”), and Leveraged Developments LLC, a New Hampshire limited liability company (“LD”), (this “Amendment”) to the Development Agreement dated October 29, 2014 (the “Development Agreement”) and to the Research and Development Agreement dated October 29, 2014 (the “R&D Agreement”) (the Development Agreement and the R&D Agreement collectively the “Collaboration Agreements” and each a “Collaboration Agreement”) to which PMI and LD are party.
Provisions Applicable to the Development Agreement
4.1 LD states that it is approving the Invoice for payment, which approval shall be deemed a representation and warranty the payee is in compliance in all material respects as to its obligations to LD with respect to the goods and services which are the subject of the Invoice, in terms of quality, scope, adherence to time schedule, and any other parameter reasonably requested by PMI from time to time; and
4.2 The total amount of funds remitted by PMI in payment of all Invoices from all Current Contractors pursuant to this Section 3 does not exceed the total amount of funds referenced on Schedule A in the “total” line, unless PMI shall in its sole discretion agree to pay such overage; and
4.3 LD is not in breach of any of its agreements with PMI including without limitation the Development Agreement and the Asset Purchase Agreement; and
4.4 LD remits the funds received from PMI directly to the respective Current Contractor and Subcontractor not later than four (4) business days after receipt from PMI.
5. Funding of LD Payroll During the Period February 1, 2015 through April 30, 2015. LD represents and warrants that its payroll obligation for its current employees is approximately $75,000 per month. PMI agrees to remit $75,000 to LD on February 1, 2015, March 1, 2015 and April 1, 2015 which LD agrees will be used for employee payroll solely to the extent pertaining to employee time allocated to the development of the Product under the Development Agreement; provided, however, that as of each such date LD is not then in breach of any its agreements with PMJ including without limitation the Development Agreement and the Asset Purchase Agreement. PMI may agree to pay amounts in addition to this $75 000, if its sole discretion it agrees to increased LD staffing to accelerate the Development Plan.
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Provisions Applicable to the R&D Agreement
8. Development Costs under the R&D Agreement. Section 4.6 of the Development Agreement is deleted in its entirety and in its place and stead it is agreed as follows:
8.1 Commencing June 1, 2015 and on the first day of each month thereafter during the Term of the R&D Agreement, PMI shall remit to LD up to $75,000 or such lesser amount as shall then equal LD’s payroll obligation for the ensuing month which shall be used by LD to pay its payroll solely to the extent pertaining to employee time allocated to the development of the agreed to under the R&D Agreement; provided prior to the first day of each month LD shall provide PMI with a statement representing to its payrol1 obligation for the ensuing month, and if such payroll obligation is less than $75,000, then PMI shall remit such lesser amount; provided, further however, that as of each such date LD is not then in breach of any its agreements with PMI including without limitation the R&D Agreement, the Development Agreement and the Asset Purchase Agreement. PMI may agree to pay amounts in addition to this $75,000 if in its sole discretion it agrees to increased LD staffing to accelerate the R&D Agreement Development Plan. The total amount to be paid pursuant to this Section 8.1 shall not exceed One Million Four Hundred Forty Thousand Dollars ($1,440,000), unless PMI in its sole discretion shall elect to pay any additional amount.
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8.2 PMI agrees to remit funds to LD to pay Invoices for work performed pursuant to each Three Month Rolling R&D Agreement Development Plan (as hereafter defined), not later than 30 days after PMT ’s receipt of the respective Invoice, provided that:
8.2.1 LD states that it is approving the Invoice for payment, which approval shall be deemed a representation and warranty the payee is in compliance in all material respects as to its obligations to LD with respect to the goods and services which are the subject of the Invoice, in terms of quality, scope, adherence to time schedule, and any other parameter reasonably requested by PMI from time to time: and
8.2.2 The total amount of the Invoice for the period in question does not exceed the amount set forth in the Three Month Rolling R&D Agreement Development Plan for the such payee for such period in question, unless PMI shall in its sole discretion agree to pay such overage; and
8.2.3 The total amount of funds remitted by PMI in payment of all Invoices from all Current Contractors and Subcontractors during the period in question pursuant to the Three Month Rolling R&D Agreement Development Plan does not exceed the total amount indicated for the period shown as payable in Three Month Rolling R&D Agreement Development Plan, unless PMI shall in its sole discretion agree to pay such overage; and
8.2.4 The total amount of funds remitted by PMI pursuant to the Three Month Rolling R&D Agreement Development Plan does not exceed the total amount of funds shown as payable in Three Month Rolling R&D Agreement Development Plan in the “total” line and the total amount of funds remitted to date pursuant to all Three Month Rolling Development Plans does not exceed One Million Four Hundred Forty Thousand Dollars ($1,440,000), unless PMI shall in its sole discretion agree to pay such overage; and
8.2.5 LD remits the funds received from PMI directly to the respective Current Contractor and Subcontractor not later than four (4) business days after receipt from PMI, and LD provides evidence to PMI of such payment, not later than four (4) business days after making such payment.
8.3 Notwithstanding anything herein to the contrary, PMI shall have no obligation to make payments under any Three Month Rolling R&D Agreement Development Plan if at the time that the payment is otherwise due the Parties have not reached agreement on the Three Month Rolling Development Plan covering the month as to which payment is being made or LD is then in breach of any its agreements with PMI including without limitation either of the Collaboration Agreements or the Asset Purchase Agreement.
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8.4 The term “Three Month Rolling R&D Agreement Development Plan” shall mean the R&D Agreement Development Plan for any given three month period, which shall contain the information provided for in the definition of “R&D Agreement Development Plan” for such three month period, together with the names of all then Current Contractors and Subcontractors, work to be performed by each such person, and amounts to be paid to each such person on a monthly basis, and such other information as reasonably required by PMI. The first Three Month Rolling R&D Agreement Development Plan shall be for the period starting June I , 20 1 5 through August 31, 2015, and the second Three Month Rolling R&D Agreement Development Plan shall be for the period September 1, 2015 through November 30, 2015, and further Three Month Rolling R&D Agreement Development Plans shall similarly follow thereafter; provided, however, that the Parties shall revise a Three Month Rolling R&D Agreement Development Plan whenever reasonably requested by PMI, upon the occurrence of an unanticipated material development or otherwise. The planning by LD and PMI for each Three Month Rolling R&D Agreement Development Plan shall occur during the three month period prior to the commencement date of each Plan and the Parties shall work in good faith together to develop each such Plan and to agree upon the final version of each such Plan prior to the commencement date of such Plan.
8.5 Additional Termination Right. PMI may terminate the R&D Agreement upon sixty (60) days prior written notice, if, in the opinion of an Independent Product Design(IPD) firm selected by PMI, LD has failed to deliver on key project deliverables in the previous or the current Three Month R&D Agreement Development Plan. The termination will not take effect if during this notice period, LD cures the default in the deliverables to PMI’s satisfaction or as determined by a subsequent review of the IPD firm. This termination right is in addition to the termination rights under Section 6.2 of the R&D Agreement.
Additional Provisions Applicable to Both Collaboration Agreements
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10. Representation and Warranties.
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11.1 No Third Party Beneficiaries. This Amendment shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.
11.2 Entire Agreement. Except as agreed to by the parties in writing, this Amendment and Schedules hereto, and the Collaboration Agreements together with the Asset Purchase Agreement and their respective attachments and schedules, constitute the entire agreement among the Parties and supersedes any prior understandings, agreements or representations by or among the Parties, whether written or oral, with respect to the subject matter hereof.
11.3 Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, notwithstanding variations in format or file designation which may result from the electronic transmission, storage and printing of copies of this Amendment from separate computers or printers. Facsimile signatures and signatures transmitted via PDF shall or by any other electronic means shall be treated as original signatures.
11.4 Headings. The Section headings contained in this Amendment are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Amendment.
11.5 Governing Law. This Amendment shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The Parties hereto submit to the exclusive jurisdiction of the State and Federal courts in the State of Delaware and New Castle County with respect to any dispute.
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POINT MEDICAL, INC. | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | President and COO | |
Date: |
LEVERAGED DEVELOPMENTS LLC | ||
By: | /s/ Xxxxxxx Xxxxxxxx |
|
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Member | |
Date: | 1 /29 /15 |
Schedule A
Breeze Cash Planning
Feb | Mar | Apr | May | |||||||||||||
Eclipse | $ | 12 | $ | 20 | $ | 10 | ||||||||||
Continuum | $ | 30 | $ | 30 | $ | 20 | ||||||||||
Xxxxx | $ | 18 | $ | 18 | $ | 18 | ||||||||||
Protolabs | $ | 18 | $ | 12 | $ | |||||||||||
Branson | $ | 4 | $ | 4 | $ | |||||||||||
Intertech | $ | $ | $ | 20 | ||||||||||||
C&C Plaistow | $ | 8 | $ | 8 | $ | 8 | ||||||||||
McMaster | $ | 5 | $ | 5 | $ | 5 | ||||||||||
Ethox | $ | 15 | $ | |||||||||||||
Bbraun | $ | 3 | $ | 3 | $ | 3 | ||||||||||
Bellowstech | $ | 7 | $ | 4 | $ | 4 | ||||||||||
Xxx Valve | $ | 2 | $ | 2 | $ | |||||||||||
Electrocraft | $ | 2 | $ | 3 | $ | |||||||||||
XX Xxxxx | $ | 12 | $ | 20 | $ | 6 | ||||||||||
Magnetyze | $ | 3 | $ | 3 | $ | |||||||||||
New England Electropolish | $ | $ | 4 | $ | 3 | |||||||||||
Tenergy | $ | $ | 3 | $ | ||||||||||||
Unallocated | $ | 2 | $ | 21 | $ | 2 | $ | 60 | ||||||||
123 | $ | 154 | $ | 98 | $ | 0 | ||||||||||
Total non-payroll oudget | 125 | 175 | 100 | 60 |