EXHIBIT 10.12
FIRST AMENDMENT TO RESEARCH AGREEMENT
THIS FIRST AMENDMENT TO RESEARCH AGREEMENT (this "Amendment"), dated as of
October 14, 2002, is made and entered into by and between Spectrum Laboratories,
Inc., a Delaware corporation ("Spectrum"), and ▇▇▇▇▇▇ Technologies, Inc., a
Delaware corporation ("▇▇▇▇▇▇"), with reference to the following facts:
A. Spectrum and ▇▇▇▇▇▇ are parties to that certain Research Agreement,
dated as of December 26, 2001 (the "Existing Agreement").
B. Exhibit C to the Existing Agreement ("Exhibit C") sets forth the
four-year schedule over which Spectrum is to expend defined sums of money to
research, develop, manufacture and deliver to ▇▇▇▇▇▇ within such four-year
period clinical-grade second-generation LAS modules for clinical testing.
C. As of the date of this Amendment, Spectrum has worked with ▇▇▇▇▇▇ in
developing the LAS modules and has satisfied ▇▇▇▇▇▇ with said work.
D. Spectrum and ▇▇▇▇▇▇ desire to amend the Existing Agreement to reflect
Spectrum's completion of all development work described in Exhibit C and to
provide for the basis upon which Spectrum may conduct additional research and
development work for ▇▇▇▇▇▇ regarding applications of the Spectrum Technology in
the Field of Use.
E. Spectrum and ▇▇▇▇▇▇ desire to amend the Existing Agreement in accordance
with the terms and conditions of this Amendment.
F. 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. Satisfaction of Exhibit C Milestones. Spectrum and ▇▇▇▇▇▇ hereby agree
that Spectrum has satisfied ▇▇▇▇▇▇ with all work set forth in all agreements to
date.
2. Accelerated Vesting of Shares. In consideration of the benefits to
▇▇▇▇▇▇ to be derived from Spectrum's satisfaction of the Exhibit C milestones
and the other agreements of Spectrum set forth in this Amendment, ▇▇▇▇▇▇ ▇▇▇▇▇
agrees that all of the 362,669 Shares shall be deemed to be vested and shall be
Vested Shares for purposes of Section 5.3 of the Existing Agreement as of
October 14, 2002. Spectrum and ▇▇▇▇▇▇ agree that ▇▇▇▇▇▇ has accrued billing at
Spectrum of $109,360.74 for the development of ▇▇▇▇▇▇' LAS modules through
September 29, 2002. They further agree that this amount owed by ▇▇▇▇▇▇, will be
reduced by $54,400.35 dollars in payment for 362,669 Shares of the common stock
of ▇▇▇▇▇▇. The balance of $54,960.39 shall be paid by Arbios to Spectrum in cash
in monthly payments over a 18-month period starting November 1, 2002.
3. Future Research Work. Spectrum agrees to perform such additional
research and development regarding applications of the Spectrum Technology in
the Field of Use as shall be requested in writing by ▇▇▇▇▇▇. The budget and
milestones for such future work shall be negotiated in good faith by Spectrum
and ▇▇▇▇▇▇. The payments for such future work shall be made by ▇▇▇▇▇▇ in cash in
monthly payments over a 36-month period. The parties hereby agree to delete
Section 5.1 of the Existing Agreement
4. Termination Provisions. The parties hereby agree to eliminate Spectrum's
right pursuant to Section 2.1 of the Existing Agreement to terminate its
obligations under the Existing Agreement with or without cause by deleting in
full the second sentence of Section 2.1 of the Existing Agreement.
5. Effect on Existing Agreement and Related Agreements. 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. This Amendment shall have no
effect upon the Stock Purchase Agreement, First Amended and Restated
Stockholders' Agreement, License Agreement or Manufacturing and Supply Agreement
that the parties hereto entered into contemporaneously with the Existing
Agreement.
6. No Novation. This Amendment is a revision to the Existing Agreement
only, and not a novation thereof.
7. 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.
8. 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.
9. 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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first written above.
"▇▇▇▇▇▇":
▇▇▇▇▇▇ TECHNOLOGIES, INC., a
Delaware corporation
By: ___________________________
▇▇▇▇▇ ▇▇▇▇▇, M.D., Ph.D.
President and Chief Scientific Officer
"SPECTRUM":
SPECTRUM LABORATORIES, INC., a
Delaware corporation
By: ___________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
