AMENDMENT TO DEVELOPMENT AND SUPPLY AGREEMENT
This Amendment (the "Amendment"), dated as of December 23, 1997, to
that certain Development and Supply Agreement (the "Agreement"), dated
as of January 26, 1990, by and between Gensia Pharmaceuticals, Inc.
(now known as GENSIA SICOR INC.), a Delaware corporation ("Gensia"),
and PROTOCOL SYSTEMS, INC., an Oregon corporation ("PS").
WITNESSETH:
WHEREAS Gensia and PS have entered into the Agreement; and
WHEREAS Gensia and PS, in light of the facts and circumstances
which have developed since the effective date of the Agreement, now
wish to amend the Agreement as set forth in this Amendment;
Now, therefore, the parties hereto agree as follows:
1. DEFINITIONS; REFERENCES. Capitalized terms in this
Amendment shall, unless otherwise defined herein, have the meanings
ascribed to them in the Agreement.
2. AMENDMENT OF SECTION 3.2. Section 3.2(d) of the Agreement
is hereby amended to read as follows:
"(d) purchase at least 2,500 units in
total by the end of the five (5) year
period commencing January 1, 1998 and
ending on December 31, 2002. At lest 500
Units shall be purchased in each calendar
year during such period, and at least 125
Units shall be purchased in each calendar
quarter during such period, provided that
the 100 Units ordered pursuant to purchase
orders issued during 1997 may be credited
against the 125 Unit requirement for the
first calendar quarter of 1998."
3. EQUITY PURCHASE. In consideration of PS's execution of
this Amendment, on the date hereof, Gensia Automedics, Inc., a Delaware
corporation ("Automedics"), shall issue to PS 400,000 shares of
Subordinated Convertible Preferred Stock (the "Shares") of Automedics,
equal to 4% of the outstanding shares of Automedics on a fully diluted
basis. In connection with the issuance of such shares, PS hereby makes
the representations and warranties set forth on Exhibit A hereto.
4. CONSENT TO ASSIGNMENT. Pursuant to Section 9.7 of the
Agreement, PS hereby consents to the assignment by Gensia of all its
rights and obligations under the Agreement to Automedics, provided,
however, that Gensia and Automedics shall be jointly and severally
liable to PS for any breach of Section 3.2(d) of the Agreement as
amended hereby.
5. RELEASE. In consideration of Gensia's and Automedics'
execution of this Amendment, PS on its own behalf and on behalf of
officers, directors, parents, subsidiaries, affiliates, assigns,
employees, agents, attorneys, and representatives, hereby releases
Gensia, its officers, directors, parents, subsidiaries, affiliates,
assigns, employees, agents, attorneys and representatiaves, and
Automedics, its officers, directors, parents, subsidiaries, affiliates,
assigns, employees, agents, attorneys and representatives, from any and
all claims, damages, liability or causes of action of any kind relating
to Gensia's performance to date of its obligations under Section 3.2(d)
of the Agreement. PS specifically waives the provisions of Section
1542 of the California Civil Code, which provides that, "(a) general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
the debtor."
6. FULL FORCE AND EFFECT. Except as expressly modified,
amended or supplemented above, all rights, terms and conditions of the
Agreement shall remain in full force and effect.
7. GOVERNING LAW. This Amendment shall be construed and
enforced in accordance with, and the rights shall be governed by and
construed under, the laws of the State of Oregon (irrespective of its
choice of law principles).
8. COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date first above written.
GENSIA SICOR INC. PROTOCOL SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------- --------------------------
Name: Xxxx Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: V.P. Finance, CFO Title: V.P. Finance, CFO
& Treasurer
GENSIA AUTOMEDICS, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: President
EXHIBIT A
ACQUISITION ENTIRELY FOR OWN ACCOUNT. The shares of Subordinated
Preferred Stock to be acquired by PS pursuant to Section 3 hereof are
acquired for investment purposes and for its own account, not as a
nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that PS has no present intention of selling,
granting any participation in, or otherwise distributing the same. By
executing this Agreement, PS further represents that PS does not have
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third
person, with respect to any of such shares of Subordinated Preferred
Stock.
RESTRICTED SECURITIES. PS understands that the shares of
Subordinated Preferred Stock it is acquiring are characterized as
"restricted securities" under the federal securities laws inasmuch as
they are being acquired from Automedics in a transaction exempt from
registration under the Securities Act of 1933, as amended (the
"Securities Act"), and that such shares of Subordinated Preferred Stock
may be resold without registration under the Securities Act only in
certain limited circumstances. In this connection PS represents that
it is familiar with Rule 144 promulgated under the Securities Act, as
presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
LEGENDS. It is understood that the certificates evidencing the
Securities may bear one or all of the following legends:
"These securities have not been registered
under the Securities Act of 1933, as amended. They
may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration
statement in effect with respect to the securities
under such Act or an opinion of counsel satisfactory
to Automedics that such registration is not required
or unless sold pursuant to Rule 144 of such Act."
Any legend required by the laws of the State of
California or other jurisdiction.
ACCREDITED INVESTOR. PS is an accredited investor as defined in
Rule 501(a) of Regulation D promulgated under the Securities Act.
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