Exhibit 10.18


 


FIRST AMENDMENT TO

DISTRIBUTION, MANUFACTURING AND SUPPLY AGREEMENT


 


THIS FIRST AMENDMENT
TO THE  DISTRIBUTION, MANUFACTURING AND SUPPLY AGREEMENT (the “First Amendment”) is made as of
January 30, 2004 (the “First Amendment
Date”) by and between AEROGEN,
INC., a Delaware corporation, with offices at 2071 Stierlin Court,
Mountain View, CA  94043 (“Aerogen”), and MEDICAL INDUSTRIES AMERICA, INC.,  an Iowa corporation, with offices at 2636 289th
Place, Adel, IA  50003 (“MIA”).


 


WHEREAS, Aerogen and
MIA entered into that certain Distribution, Manufacturing and Supply Agreement
dated September 30, 2003 (the “Agreement”);
and


 


WHEREAS, Aerogen and
MIA now desire to amend the Agreement to reflect the parties’ agreement
regarding the modification of certain terms relating to certain countries of
the Territory (as defined in the Agreement).


 


NOW, THEREFORE, in
consideration of the foregoing premises and the covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Aerogen and MIA agree to amend the Agreement as
follows:


 


1.                                      All
capitalized terms used but not defined herein have the meaning given them in
the Agreement.


 


2.                                      Section 2.2
shall be deleted in its entirety and replaced with the following:


 


2.2                               Sub-Distributor
Obligation.  In order for MIA to
retain distribution rights in each Expansion Country of the Territory (as
defined in Exhibit C),
MIA shall complete and present to Aerogen a definitive business plan, including
a distribution strategy with either intent to contract or hire sales
representatives, or a letter of intent and a draft definitive agreement with a
sub-distributor, in each such Expansion Country no later than June 30,
2004.  The business terms of each such agreement
shall be subject to approval by Aerogen. 
At any time prior to June 30, 2004, MIA may elect to terminate the
Agreement with respect to any Expansion Country, which will result in a
commensurate reduction of the minimum royalties and Product System (as Systems
are defined on Exhibit A)
sales requirements attributable to such country as reflected in Exhibit I and Exhibit J; provided, however, that the aggregate
minimum Product System sales requirements for Europe in its entirety (as
defined in Exhibit J)
shall remain unchanged and the minimums for the remaining individual European
countries adjusted as mutually agreed upon by the Parties.  If as to any particular Expansion Country,
MIA has not met the preceding requirements of this section by
June 30, 2004, then Aerogen may thereafter terminate MIA’s rights under
this Agreement with respect to such country, by written notice, and on such
termination such country shall no longer be in the Territory and all rights in
such country shall revert exclusively to Aerogen.  MIA will provide Aerogen with written notice
regarding any direct or indirect financial affiliation that arises between MIA
(or any of its Affiliates) and any of its existing or proposed sub-distributors
during the Term, with such notice to be given promptly upon the commencement of
negotiations with a sub-distributor involving any financial interest
(including, but not limited to, equity ownership, credit facilities, rebates,
profit or revenue interest, etc.), with full details of the final relationship
to be provided to Aerogen upon


 
















 


final deal closure.  MIA shall
require that any Related Sub-Distributors make complete and accurate reports to
MIA in writing on a quarterly basis of all Gross Selling Prices for Products
sold or otherwise transferred by such Related Sub-Distributor, and Aerogen
shall have the right to inspect and audit all such reports pursuant to Section 5.7.


 


3.                                      Except
as specifically amended by this First Amendment, the terms and conditions of
the Agreement shall remain in full force and effect.  This First Amendment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.


 


IN WITNESS WHEREOF,
the Aerogen and MIA have caused this First Amendment to be executed by their
duly authorized officers as of the First Amendment Date.


 


 


	
  AEROGEN, INC.

  	
   

  	
  MEDICAL INDUSTRIES AMERICA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/Robert Breuil

  	
   

  	
  /s/Dan Bunting

  
	
   

  	
   

  	
   

  
	
  Name:  Robert Breuil

  	
   

  	
  Name:  Dan Bunting

  
	
  Title:  Chief Financial Officer

  	
   

  	
  Title:  Chief Operating Officer