AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is entered
into as of February 8, 1996, by and among Utah Medical Products, Inc., a Utah
corporation ("Purchaser"), OB Tech Liquidating Company, L.L.C., a Delaware
limited liability company (the "Company") and the successor in interest to O.B.
Tech, Inc., a California Corporation ("O.B. Tech"), and James J. Bochnowski (the
"Agent").
R E C I T A L S
A. Purchaser, O.B. Tech, and the individuals and other entities
identified on the signature pages to the Agreement (as defined below) entered
into an Asset Purchase Agreement dated January 4, 1994 (the "Agreement").
Pursuant to Section 3.7 of the Agreement, among other things, the Agent was
irrevocably appointed as the agent and attorney-in-fact of the shareholders of
O.B. Tech that executed the Agreement to act in the name of such shareholders
for purposes of executing any documents and taking any actions that the Agent,
in his sole discretion, may deem necessary or desirable in connection with
Agreement or any of the transactions contemplated thereby.
B. The parties now wish to amend the Agreement pursuant to Section 14.7
thereof, as set forth in this Amendment. All capitalized terms used in the
Amendment and not otherwise defined herein shall have the respective meanings
assigned to them in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The product described on Exhibit A hereto as approved by the FDA under
submission number K954619 shall be deemed to constitute "Cordguard I" in place
of the product identified as "Cordguard I" in the Agreement.
2. The parties acknowledge and agree that Purchaser has satisfied all of
its obligations under Section 2.1 of the Agreement and Section 2.1 is of no
further force or effect.
3. Section 2.2 of the Agreement is hereby amended and restated in its
entirety to read as follows:
2.2 Exclusivity. Purchaser shall retain exclusive ownership
rights in, and exclusive rights to exploit, U.S. Patent No. 5,190,556
included in the Assets (the "Patent") and any other patents included
in the Assets or otherwise arising out of the Assets (the "Additional
Patents"), and have no obligation to grant the Company any rights
therein.
4. The parties acknowledge and agree that Purchaser has satisfied all of
its obligations under Section 2.3 of the Agreement and Section 2.3 of the
Agreement is of no further force or effect.
5. Section 3.2 of the Agreement is hereby amended and restated in its
entirety to read as follows:
3.2 Acceptance Payment. On or before February 15, 1996, Purchaser
shall pay to the Company in cash or other immediately available funds
Two Hundred Fifty Thousand Dollars ($250,000) (the "Acceptance
Payment").
Amendment to Asset Purchase Agreement
Page 2
6. Section 3.3 of the Agreement is hereby amended and restated in its
entirety to read as follows:
3.3 Incremental Payments. Purchaser shall make up to three
additional payments (the "Incremental Payments") to the Company of Two
Hundred Fifty Thousand Dollars ($250,000) each (or up to an additional
aggregate amount of Seven Hundred Fifty Thousand Dollars ($750,000))
in the event Gross Revenues from the sale of Cordguard I equal or
exceed in a calendar year during the remaining validity of the Patent
any of the following three benchmarks (with only one payment being due
for achievement of each benchmark): (i) Gross Revenues exceed Ten
Million Dollars ($10,000,000); (ii) Gross Revenues exceed Twenty
Million Dollars ($20,000,000); or (iii) after achieving benchmark
(ii), Gross Revenues exceed Twenty Million Dollars ($20,000,000) in a
subsequent calendar year. To illustrate Purchaser's obligation to
make the Incremental Payments: (A) in the event Gross Revenues exceed
Ten Million Dollars ($10,000,000) in one or more calendar years but
never exceed Twenty Million Dollars ($20,000,000) in a calendar year,
the Company shall only be entitled to the first Incremental Payment of
Two Hundred Fifty Thousand Dollars ($250,000); (B) in the event Gross
Revenues exceed Twenty Million Dollars ($20,000,000) in a calendar
year without having previously exceeded Ten Million Dollars
($10,000,000), the Company shall be entitled to the first and second
Incremental Payments of Two Hundred Fifty Thousand Dollars ($250,000)
each for Cordguard I having achieved benchmarks (i) and (ii) in such
calendar year; and (C) in the event Gross Revenues exceed Twenty
Million Dollars ($20,000,000) in two calendar years, the Company shall
be entitled to receive the third and final Two Hundred Fifty Thousand
Dollars ($250,000) Incremental Payment with respect to such second
calendar year. Any Incremental Payment which become due shall be paid
within thirty (30) days of the end of the year for which such payment
is due.
7. Section 3.4.1 of the Agreement is hereby amended and restated in its
entirety to read as follows:
3.4.1 Cordguard I. Five percent (5%) of Gross Revenues relating to
Cordguard I for the remaining validity of the Patent;
8. Except as expressly provided herein, the Agreement shall remain
unmodified and in full force and effect and, in the event of any inconsistency
between the terms of the Amendment and the Agreement, the terms of the Amendment
shall be controlling.
9. This Amendment may be executed in several counterparts, each of which
shall constitute and original and all of which, when taken together, shall
constitute one amendment.
10. This Amendment shall be binding upon and inure to the benefit of the
parties and their respective permitted successors and assigns.
Amendment to Asset Purchase Agreement
Page 3
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date specified above.
PURCHASER: THE COMPANY:
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UTAH MEDICAL PRODUCTS, INC. OB TECH LIQUIDATING COMPANY, L.L.C.
By /s/ Kevin L. Cornwell By /s/ James J. Bochnowski
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Kevin L. Cornwell James J. Bochnowski
President & CEO Manager
THE AGENT:
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/s/ James J. Bochnowski
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James J. Bochnowski
Exhibit A:
[Graphical information omitted}
Description: Exhibit A to the "Amendment to Asset Purchase Agreement" is a
copy of Utah Medical Products part number 5950 which is a printed brochure. The
brochure includes a photograph of a device identified as Cordguard II, brief
descriptions of product features, and gives the catalog number as CRD-200. The
brochure says that Cordguard II is "The Closed System for Umbilical Cord
Clamping, Cutting & Blood Collection". Identified product features include
"Integrated cord clamp", "Designed to minimize splashing and spraying of blood",
"Designed for Single-handed use", "2 five cc vacuum tubes", and "Protective
sheath to keep tubes clean".