AMENDMENT NO. 2 TO OEM PRODUCT DEVELOPMENT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2 TO
This AMENDMENT NO. 2 (“Amendment No. 2”) is made this 5th day of February, 2007, by and
between Aspect Medical Systems, Inc., a Delaware corporation (“AMS”), and Boston Scientific
Corporation, a Delaware corporation (“BSC”), and amends that certain OEM PRODUCT
DEVELOPMENT AGREEMENT, dated as of August 7, 2002, among AMS and BSC (the “Agreement”), as
amended by that certain Amendment No. 1 to OEM PRODUCT DEVELOPMENT AGREEMENT, dated as of January
31, 2005, among AMS and BSC (“Amendment No. 1”). Capitalized terms used
herein but not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
WHEREAS, pursuant to the Agreement, AMS agreed to work exclusively with BSC during the Joint
Development Period to develop Joint Products;
WHEREAS, pursuant to the Agreement, AMS granted to BSC an exclusive option to become the
distributor for a period of time of Company Products on the terms set forth in the Agreement,
referred to in the Agreement, in Amendment No. 1 and in this Amendment No. 2 as the
“Distribution Option”.
WHEREAS, AMS and BSC have previously executed Amendment No. 1, pursuant to which each of (i)
the Joint Development Period, (ii) the Option Period, (iii) the Distribution Term and (iv) the Term
of the Agreement were extended;
WHEREAS, AMS and BSC wish to further extend (i) the Joint Development Period, (ii) the Option
Period, (iii) the Distribution Term and (iv) the Term of the Agreement; and
WHEREAS, AMS and BSC wish to further amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises made herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Agreement as follows:
1. Amendment of Section 1. In order to amend the Option Period, the Agreement is
hereby amended by deleting the date “December 31, 2004” appearing in the second line of the
definition of “Option Period” in Section 1 of the Agreement and replacing such date with the date
“December 31, 2008”.
2. Amendment of Section 2.2. In order to amend the Joint Development Period, the Agreement
is hereby amended by deleting the date “December 31, 2004” appearing in the third line of Section
2.2 of the Agreement and replacing such date with the date “December 31, 2008”.
3. Amendment of Section 3.1(b). In order to amend the Distribution Term, the
Agreement is hereby amended by deleting the date “December 31, 2012” appearing in the sixth line of
Section 3.1(b) of the Agreement and replacing such date with the date “December 31, 2016”. In
addition, the Agreement is hereby amended by deleting the date “June 30, 2004” appearing in the
eighth and ninth lines of Section 3.1(b) of the Agreement and replacing such dates with the date
“June 30, 2008”.
4. Amendment of Section 10.1. In order to amend the Term of the Agreement, the
Agreement is hereby amended by deleting the date “December 31, 2012” appearing in the fourth line
of Section 10.1 of the Agreement and replacing such date with the date “December 31, 2016”.
5. Termination of Amendment No. 1. The parties hereto acknowledge and agree that
Amendment No. 1 is hereby terminated in its entirety and is superseded by this Amendment No. 2.
6. No Other Amendments. Except to the extent amended hereby, all of the definitions,
terms, provisions and conditions set forth in the Agreement are hereby ratified and confirmed and
shall remain in full force and effect. The Agreement and this Amendment No. 2 shall be read and
construed together as a single agreement and the term “Agreement” shall be deemed a reference to
the Agreement as amended by this Amendment No. 2. This Amendment No. 2 may be signed in any number
of counterparts, each of which shall be deemed to be an original and all of which together shall
constitute but one and the same instrument. In making proof of this Amendment No. 2 it shall not
be necessary to produce or account for more than one such counterpart.
In Witness Whereof, this Agreement has been executed under seal by the parties hereto
as of the day and year first above written.
| ASPECT MEDICAL SYSTEMS, INC. | BOSTON SCIENTIFIC CORPORATION | |||||
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Title: V. P. Finance | Title: V. P. & Assistant General Counsel | |||||
2