EXHIBIT 2.13
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "AMENDMENT") is
made and entered into, to be effective as of ___________, 2004 (the "EFFECTIVE
DATE"), by and between ENDOCARE, INC., a Delaware corporation (the "COMPANY"),
and XXXX XXXX, M.D., an individual and any person or entity that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with Xx. Xxxx (collectively, "ASSIGNOR") (each a "PARTY"
and together, the "PARTIES"). Capitalized terms used in this Amendment shall
have the meanings set forth in the Asset Purchase Agreement dated February 6,
2002, by and between the Company and Assignor (the "AGREEMENT"), or elsewhere in
the text of this Amendment.
WITNESSETH:
WHEREAS, the Company is a medical device company, which provides medical
devices and related supplies and services used in connection with cryosurgical
procedures, and
WHEREAS, Assignor is a radiologist who has developed intellectual property
used in connection with cryosurgery procedures as a byproduct of his urology
practice, and
WHEREAS, the Company and Assignor entered into the Agreement pursuant to
which the Company acquired the Rights (as defined in Section 1 of the Agreement)
to the Technology (as defined in Section 1 of the Agreement) as used in the
Business (as defined in Section 16 of the Agreement) and also engaged Assignor
to perform certain consulting services (the "CONSULTING SERVICES"); and
WHEREAS, each Party acknowledges Assignor's continuing obligation to
provide the Consulting Services under the terms set forth in the Agreement; and
WHEREAS, the Parties desire to amend the Agreement to clarify that the
Rights do not include any right, title or interest to Assignor's ideas,
developments and other intellectual property directly related to percutaneous
cryoablation techniques, procedures, equipment and supplies for the treatment of
liver, lung, kidney, bone and other conditions unrelated to the prostate that
Assignor has developed or will develop in the future (collectively,
"NON-PROSTATE-RELATED INTELLECTUAL PROPERTY"), and
WHEREAS, the Company desires to obtain from Assignor a right of first
refusal option to purchase Assignor's entire interest in any
Non-Prostate-Related Intellectual Property, and
WHEREAS, Assignor is willing to grant such a right of first refusal option
to the Company under the terms and conditions of this Amendment,
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
terms and conditions herein contained, Assignor and the Company agree as
follows:
1. The Parties acknowledge and agree that the Agreement is now in full
force and effect, and no event has occurred which, with the passage of time or
the sending of notice, or both, would constitute grounds for termination of the
Agreement.
2. Without amending any other term or condition contained in the
Agreement, the Parties agree to amend Section 1 of the Agreement, to add the
following sentence to the end of the Section:
Notwithstanding the foregoing, the Technology and the Rights thereto
acquired by the Company pursuant to this Agreement shall not include
Assignor's ideas, developments and other intellectual property directly
related to percutaneous cryoablation techniques, procedures, equipment and
supplies for the treatment of liver, lung, kidney, bone and other
conditions unrelated to the prostate that Assignor has developed or will
develop in the future (collectively, "Non-Prostate-Related Intellectual
Property") and any right, title or interest to the Non-Prostate-Related
Intellectual Property.
3. Without amending any other term or condition contained in the
Agreement, the Parties agree to amend the Agreement to add a new Section 28, to
read as follows:
28. Grant of Right of First Refusal. Assignor hereby grants to the
Company the right to purchase any Non-Prostate-Related Intellectual
Property at the same price offered to Assignor in an arms-length
negotiation with a third party under the following terms ("Right of First
Refusal"):
(a) In the event that Assignor receives an offer for any
Non-Prostate-Related Intellectual Property from a third party (a
"Third-Party Offer"), Assignor shall forward a copy of such Third-Party
Offer (or a written term sheet summarizing any oral Third-Party Offer) to
the Company within three (3) days of Assignor's receipt of the Third-Party
Offer and prior to accepting the Third-Party Offer.
(b) Following receipt of a copy of a Third-Party Offer (or
written term sheet summarizing any oral Third-Party Offer), the Company
shall have twenty one (21) days to review the Third-Party Offer.
(c) If the Company desires to purchase the
Non-Prostate-Related Intellectual Property which is the subject of the
Third-Party Offer on the same terms as set forth in the Third-Party Offer,
then the Company shall deliver written notice of its decision to exercise
its Right of First Refusal to Assignor prior to the expiration of the
three-week review period.
(d) Promptly after the Company's exercise of its Right of
First Refusal, the Parties shall take any and all actions necessary to
close the transfer of the Non-Prostate-Related Intellectual Property to
the Company on a timely basis.
4. Counterparts: Facsimile Signatures. This Amendment may be executed in
two counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument. Copies of signatures sent
by facsimile transmission shall be deemed to be originals for purposes of
execution and proof of this Amendment.
IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of
the day and year first set forth above.
/s/ XXXX XXXX, M.D.
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Xxxx Xxxx, M.D.
/s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
President
