Exhibit 10.36
AMENDMENT NUMBER ONE TO
DEVELOPMENT AND DISTRIBUTION AGREEMENT
BETWEEN
GE MEDICAL SYSTEMS
AND
HEALTHGATE DATA CORP.
MAY 7, 2001
AMENDMENT NUMBER ONE TO
DEVELOPMENT AND DISTRIBUTION AGREEMENT
This Amendment, effective as of May 7, 2001 (the "Amendment"), is between
GE Medical Systems, a division of General Electric Company, a corporation
organized and existing under the laws of the state of New York ("GEMS"), and
HealthGate Data Corp., a corporation organized and existing under the laws of
the state of Delaware ("HealthGate").
RECITALS
A. HealthGate and GEMS are parties to the Development and Distribution
Agreement dated June 11, 2000 (the "Original Agreement"); the Original Agreement
is an amendment and restatement in its entirety of the first development and
distribution agreement entered into between HealthGate and GEMS on June 11,
1999, which agreement was amended on December 22, 1999.
B. The parties desire to amend the Original Agreement as set forth herein
to revise the revenue sharing provisions of the Original Agreement in
recognition of the evolution of the relationship and changed activities of the
parties since the date of the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants set forth below, the parties agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms herein shall have the following meanings for purposes of
this Amendment; and capitalized terms not otherwise defined herein shall have
the meaning given them in the Original Agreement:
1.1 "Amendment" has the meaning set forth in the preamble.
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1.2 "Original Agreement" has the meaning given set forth in recital A.
1.3 "Pipeline Report" means the report attached as Exhibit A hereto.
1.4 "GEMS Lead" means a lead with a potential customer for HealthGate
Products for which GEMS delivers written notice to HealthGate (a) identifying
such potential customer, (b) identifying a contact at such potential customer,
and (c) describing the discussions between GEMS and the potential customer
concerning HealthGate Products as of the date of such notice.
1.5 "Renewal Customer" means any entity which as a result of a GEMS Lead
has entered into or enters into an end-user agreement with HealthGate to
subscribe for or purchase any HealthGate Products, which entity continues to
subscribe for or purchase such HealthGate Products beyond the original
termination date or end of the initial term of the applicable end-user
agreement.
ARTICLE II
REVENUE SHARING
Article VII of the Original Agreement shall be amended and restated in its
entirety as follows:
7.1 HEALTHGATE PRODUCTS. As of January 1, 2001, HealthGate shall pay to
GEMS: (i) five percent (5%) of the Revenue HealthGate collects from the
subscription to or sale of any HealthGate Products to any Renewal Customer
(other than Consorta or any Columbia/HCA hospital); (ii) ten percent (10%) of
all Revenue HealthGate collects from the subscription to or sale of any
HealthGate Products to Consorta; (iii) fifteen percent (15%) of all Revenue
HealthGate collects from the subscription to or sale of any HealthGate Products
to any Columbia/HCA hospital; (iv) fifteen percent (15%) of all Revenue
HealthGate collects from the subscription to or sale of any HealthGate Products
to any entity listed on the Pipeline Report
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during the initial term of the end-user agreement between HealthGate and any
such entity; and (v) five percent (5%) of all Revenue HealthGate collects from
the subscription to or sale of any HealthGate Products to any GEMS Lead (other
than Consorta or any Columbia/HCA hospital) during the initial term of the
end-user agreement between HealthGate and any Gems Lead.
7.2 GEMS PRODUCTS. At such time as GEMS begins to develop and market a GEMS
Product, HealthGate and GEMS shall mutually agree to the applicable pricing and
revenue sharing arrangement with respect to such GEMS Product.
7.3 SURVIVAL OF REVENUE SHARING. The Revenue sharing arrangements set forth
in this Article VII shall survive the termination or expiration of this
Agreement with respect to (i) customers with an end-user agreement then in
effect and (ii) the sale or subscription of any HealthGate Product to any GEMS
Lead within six (6) months of the termination or expiration of this Agreement.
GEMS shall continue to share in the Revenue for such customers during the term
of the applicable end-user agreement; provided, however, notwithstanding
anything herein to the contrary, GEMS shall not be entitled to Revenue sharing
for any renewal periods by such customers.
ARTICLE III
ACCOUNTING
Section 8.1 of Article VIII of the Original Agreement shall be amended and
restated in its entirety as follows:
8.1 ACCOUNTING. Reconciliation of accounts in accordance with the Revenue
sharing arrangements set forth in Article VII above shall be made within 45 days
after each calendar quarter with respect to Revenues received during such
calendar quarter, by each party delivering to the other party a check (or by
making a wire transfer or in such other reasonable manner as the
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receiving party may direct) for the amount due without offset for any amount due
from the other party together with the report described in Section 8.2 below.
Payments made in accordance with this Section 8.1 shall be made based on
Revenues received during the applicable calendar quarter.
ARTICLE IV
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. Except as specifically set forth in this Amendment,
all other terms and conditions set forth in the Original Agreement shall remain
in full force and effect.
4.2 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be an original,
and such counterparts shall together constitute one and the same instrument.
4.3 SECTION HEADINGS. The section headings contained herein are for
convenience and for reference purposes only, and shall not be deemed to
constitute a substantive portion hereof.
[Remainder of Page Intentionally Blank]
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Executed on the dates set forth below.
GE MEDICAL SYSTEMS, a division of
GENERAL ELECTRIC COMPANY
By:
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Title:
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Date:
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HEALTHGATE DATA CORP.
By:
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Title:
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Date:
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