Exhibit 10.19
AMENDMENT D
This AMENDMENT D (the
“Amendment D”) is made and entered as of the 3rd day of
May 2005, by and between Baxter Healthcare Corporation, a
Delaware corporation (“Baxter”), and
Physiometrix, Inc., a Delaware corporation
(“Physiometrix”).
WHEREAS, Baxter and Physiometrix
entered into a Strategic Alliance and Distribution Agreement dated
May 2000 to form an alliance for the distribution and sale of
certain Products (the “Agreement”), and such Agreement
was amended by Amendment A on October 17, 2000, by Amendment B
on December 6, 2000, and by Amendment C on February 12,
2003.
WHEREAS, Baxter and Physiometrix
desire to further amend the Agreement.
NOW, THEREFORE the parties hereby
agree to amend the Agreement as follows:
1.
Amendment D
Controlling.
Baxter’s obligations in the marketing and sales of the
Products shall be governed by the provisions of this Amendment D,
and to the extent this Amendment D conflicts with any provision of
the Agreement, including sections 2.1, 5, 7, 8, 9, 10, 13 and 15,
as amended, this Amendment D shall control. Additionally, sections
2.4, 16.2 and 43 are hereby omitted.
2.
Product Sales.
Active sales efforts for the
PSA 4000 by Baxter shall end on the earlier of
(i) December 31, 2005, or (ii) the exhaustion of all
existing Baxter inventory of PSA 4000 devices. Active sales
efforts for the PSArrays for the installed base and new device
placements in 2005 shall continue through December 31,
2005. Baxter will continue to sell PSArrays to Baxter
customers until December 31, 2007.
3.
PSA 4000
Pricing.
Baxter, at its discretion, may issue Purchase Orders for additional
PSA 4000 devices, at a cost of $1,000 per unit. Such Purchase
Orders must specify a delivery date prior to December 31,
2005.
4.
PSArray
Pricing.
Baxter, at its discretion, may purchase, in a manner consistent
with past practices, PSArrays at a cost of $7.50 per unit.
Baxter shall have the exclusive right to sell the PSArray for use
with the PSA 4000 device through December 31, 2007.
5.
Physiometrix
Support.
Physiometrix will continue to support Baxter’s efforts to
sell or lease the PSA 4000 in the hospital setting with technical
and in-hospital consultative support provided by
Physiometrix.
6.
PSA 5000 Sales.
The sale or lease of the PSA
5000 device, or any other new PSA variant, (“PSA 5000”)
will be the sole responsibility of Physiometrix. The sale of
the PSA 5000 array or any new array variant (the “New
Array”) will be the sole responsibility of
Physiometrix.
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