EXHIBIT 10.5
EXHIBIT A
SECOND AMENDMENT TO EMPLOYEE LOAN-OUT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYEE LOAN-OUT AGREEMENT (this "Amendment"),
dated as of May 7, 2003, is made and entered into by and between Cedars-Sinai
Medical Center, a California nonprofit public benefit corporation (the "Medical
Center"), and Xxxxxx Technologies, Inc., a Delaware corporation (the "Company"),
with reference to the following facts:
A. The Medical Center and the Company are parties to that certain Employee
Loan-Out Agreement, dated as of July 1, 2001, as amended by that certain First
Amendment to Employee Loan-Out Agreement, dated as of December 1, 2001 (as so
amended, the "Existing Agreement").
B. The Company has requested that the Medical Center extend the term of
the Existing Agreement for an additional twelve (12) months, to commence on July
1, 2003 and to end on June 30, 2004. Subject to the terms and conditions set
forth herein, the Medical Center has agreed to do so.
C. Article XI, Section 11.8 of the Existing Agreement provides that the
Existing Agreement may be modified only in writing, signed by the parties
thereto. Furthermore, Article II, Section 2.1 of the Existing Agreement provides
that the parties thereto may modify Exhibit "A" and Exhibit "B" to the Existing
Agreement from time to time in a writing signed by both parties.
D. Pursuant to said Article XI, Section 11.8, and said Article II, Section
2.1, the Medical Center and the Company desire to amend the Existing Agreement
and Exhibit "A" and Exhibit "B" thereto, in accordance with the terms and
conditions of this Amendment.
E. Capitalized terms used in this Amendment but not otherwise defined
herein shall have the meanings ascribed to them in the Existing Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Amendments to Existing Agreement. The parties hereby agree to amend the
Existing Agreement as follows:
(a) Section 1.1. Section 1.1 of the Existing Agreement is hereby
amended in its entirety to read in full as follows:
1.1 Term. The term of this Agreement ("Term ") shall commence
on the date set forth above ("Commencement Date"), and shall continue for a term
of three (3) years, unless sooner terminated as provided herein.
(b) Exhibit "A". The entry for Xxxxxx Xxxxxxxxx in Paragraph 2 of
Exhibit "A" of the Existing Agreement is hereby deleted in its entirety, and
replaced with the following:
2. INTENTIONALLY DELETED
(c) Exhibit "B". Exhibit "B" to the Existing Agreement is hereby
deleted in its entirety, and replaced with Exhibit "B" attached to this
Amendment.
2. Consideration. In consideration of the Medical Center's agreement to
amend the Existing Agreement as provided hereinabove, the Company shall,
concurrently with its execution and delivery of this Amendment deliver to the
Medical Center a corporate check in the amount of $70,262, representing
twenty-five percent (25%) of the Medical Center Employees' salaries (including
fringe benefits of 20.2% of such salaries), listed in the table for "Time Period
Number Four" in Exhibit "B" to this Amendment. Further, the Company shall
deliver a corporate check in the same amount to the Medical Center on October 1,
2003, January 1, 2004 and April 1, 2004 to cover the balance of the Medical
Center's Employees' salaries (and fringe benefits of such salaries) for said
Time Period Number Four.
3. Effect on Existing Agreement. Except as amended by this Amendment, the
Existing Agreement shall remain in full force and effect, and is hereby
ratified, reaffirmed and confirmed in all respects by the parties. Upon the
effectiveness of this Amendment, each reference in the Existing Agreement to
"this Agreement," "hereunder," "herein," "hereof" or words of like import
referring to the Existing Agreement shall mean and be a reference to the
Existing Agreement as amended by this Amendment.
4. No Novation. This Amendment is a revision to the Existing Agreement
only, and not a novation thereof.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflict of laws principles.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
7. Further Assurances. Each party shall, from time to time when requested
by the other party, execute and deliver such further instruments, documents and
agreements, and take such further actions, as the other party may reasonably
require in order to effect fully the intent and accomplish the purposes of this
Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first written above.
THE "MEDICAL CENTER:"
CEDARS-SINAI MEDICAL CENTER, a
California nonprofit public benefit
corporation
By:____________________________________
Xxxxxx Xxxxxx, M.D.
Senior Vice President for
Academic Affairs
By:____________________________________
Xxxxxx X. Xxxxxxxxxx
Senior Vice President for
Finance and CFO
THE "COMPANY"
XXXXXX TECHNOLOGIES, INC.,
a Delaware corporation
By:____________________________________
Xxxxx Xxxxx, M.D., Ph.D.
President
