Exhibit
10.36


 


FIFTH
AMENDMENT TO

PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS


 


THIS FIFTH AMENDMENT TO PURCHASE AGREEMENT AND ESCROW
INSTRUCTIONS (“Amendment”) is entered into at San Diego, California as of April
25, 2003, between H. G. FENTON COMPANY, a California corporation which acquired
title as H. G. Fenton Material Company (“Seller”), and BIOSITE INCORPORATED, a
Delaware corporation (“Buyer”), with reference to the following


 


R
E C I T A L S:


 


A.                                   Seller
and Buyer are the parties to a Purchase Agreement and Escrow Instructions dated
as of December 7, 2001 and previously amended as of February 12, February 14,
June 10, 2002 and January 24, 2003 (“Agreement”), relating to certain real
property in the Carroll Canyon area of San Diego, California as depicted on Exhibit
A to the Agreement (“Land”). Initially capitalized terms not otherwise
defined in this Amendment have the same meanings as in the Agreement, as
previously amended. Pursuant to the Agreement, the parties have established
Escrow No. 51943-PM with Stewart Title of California, Inc. as Escrow Holder.


 


B.                                     The
Final Map has been recorded, and the parties wish to reflect that the legal
description of the Land shall now be:


 


Lots 7, 8 and 9 of
FENTON CARROLL CANYON, in the City of San Diego, County of San Diego, State of
California, according to Map thereof No. 14555, filed in the Office of the
County Recorder of San Diego County, March 10, 2003.


 


C.                                     The
parties also wish to provide for a two-stage acquisition of the Land, with
Buyer to close on Lots 7 and 8 of Map No. 14555 (“Recorded Final Map”) by May
29, 2003 (i.e., the current
Latest Closing Date), and on Lot 9 of the Recorded Final Map by September 30,
2003.


 


THE
PARTIES AGREE:


 


1.                                       Satisfaction
of Special Conditions.  The parties
acknowledge and agree that the special conditions of Paragraphs 6.1.1 through
6.1.6 of the Agreement have all been satisfied.


 


2.                                       Two-Stage
Acquisition.  Instead of a single
Closing as contemplated in Paragraph 8.1 of the Agreement, the Escrow shall
close, and the Land shall be conveyed by Seller to Buyer, in two stages, as
follows:


 


(a)                                  The first stage (“First Closing”) shall take
place on or before May 29, 2003, without the need for further notice from
Seller, and shall relate to that portion of the Land described as:


 


Lots 7 and 8 of FENTON
CARROLL CANYON, in the City of San Diego, County of San Diego, State of
California, according to Map thereof No. 14555, filed in the Office of the
County Recorder of San Diego County, March 10, 2003


 


(“Lots 7 & 8”).  The portion of the Purchase Price applicable
to Lots 7 & 8 shall be $19,076,167 (“Lots 7 & 8 Purchase Price”), or
67.77% of the total Purchase Price, and $677,700 of the Deposits shall be
applicable to the Lots 7 & 8 Purchase Price. Except for the description of
the real property conveyed (i.e., Lots 7 & 8 instead of all of the Land)
and amount of the Purchase Price and 


 


1

















 


applicable portion of the
Deposits, the First Closing shall in all other respects be governed by Articles
4, 5, 8, 9 and 10 of the Agreement.


 


(b)                             The second stage (“Second Closing”) shall
take place on or before September 30, 2003, upon not less than ten (10)
business days prior written notice to Buyer and Escrow Holder (although if the
Second Closing is to occur on September 30, 2003, no such additional notice
shall be required), and shall relate to the remainder of the Land, i.e., that
portion described as:


 


Lot 9 of FENTON CARROLL
CANYON, in the City of San Diego, County of San Diego, State of California, according
to Map thereof No. 14555, filed in the Office of the County Recorder of San
Diego County, March 10, 2003


 


(“Lot 9”). The portion of
the Purchase Price applicable to Lot 9 shall be $9,071,370 (“Lot 9 Purchase
Price”), or 32.23% of the total Purchase Price, and $322,300 of the Deposits
shall be retained in Escrow following the First Closing for application to the
Lot 9 Purchase Price. Except for the description of the real property conveyed
(i.e., Lot 9 instead of all of the Land) and amount of the Purchase Price and
applicable portion of the Deposits, the Second Closing shall in all other
respects be governed by Articles 4, 5, 8, 9 and 10 of the Agreement.


 


(c)                                  Paragraph 14.3 of the Agreement is amended
and restated in its entirety to read as follows:


 


14.3                           Liquidated Damages. THE PARTIES AGREE
THAT THE PURCHASE PRICE HAS BEEN DETERMINED NOT ONLY BY A CONSIDERATION OF THE
VALUE OF THE LAND PER SE BUT ALSO BY A CONSIDERATION OF THE VALUE OF THE
VARIOUS COVENANTS, CONDITIONS AND WARRANTIES OF THIS AGREEMENT AS THEY RELATE
TO THE LAND. THE IMPLICATIONS OF SUCH VALUES, SOMETIMES MEASURABLE IN RELATION
TO KNOWN EXTERNAL STANDARDS AND SOMETIMES DETERMINED ONLY BY SUBJECTIVE
BUSINESS JUDGMENTS OF THE PARTIES, ARE ALL INTERRELATED AND AFFECTED BY THE
PARTIES’ ULTIMATE AGREEMENT UPON THE PURCHASE PRICE. THE PARTIES HAVE DISCUSSED
AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF THE DAMAGES THAT WOULD BE
SUFFERED BY SELLER IN THE EVENT BUYER BREACHES THIS AGREEMENT. THE PARTIES HAVE
ENDEAVORED TO REASONABLY ESTIMATE SUCH DAMAGES AND THEY HEREBY AGREE THAT, BY
REASON OF THE AFORESAID CONSIDERATIONS, (I) SUCH DAMAGES ARE AND WILL BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, (II) LIQUIDATED DAMAGES IN THE
AMOUNT OF THE ESCROW OPENING DEPOSIT (AND, AFTER DELIVERY THEREOF, EACH OF THE
ADDITIONAL DEPOSITS)ARE AND WILL BE REASONABLE IF BUYER FAILS TO CLOSE ON LOTS
7 & 8, (III) IN THE EVENT OF SUCH BREACH, SELLER SHALL RECEIVE THE ESCROW
OPENING DEPOSIT AND (IF DELIVERED) THE ADDITIONAL DEPOSITS AS SUCH LIQUIDATED
DAMAGES, (IV) IF BUYER FAILS TO CLOSE ON LOT 9 AFTER THE FIRST CLOSING,
LIQUIDATED DAMAGES IN THE AMOUNT OF ALL REMAINING DEPOSITS NOT APPLIED TO THE
LOTS 7 & 8 PURCHASE PRICE ARE AND WILL BE REASONABLE IF BUYER FAILS TO
CLOSE ON LOT 9 AFTER THE FIRST CLOSING, AND (V) IN CONSIDERATION OF THE PAYMENT
OF SUCH LIQUIDATED DAMAGES, SELLER SHALL BE DEEMED TO HAVE WAIVED ANY AND ALL
CLAIMS AT LAW OR IN EQUITY, INCLUDING ANY CLAIM FOR DAMAGES OR FOR SPECIFIC
PERFORMANCE, EXCEPT FOR: (A) CLAIMS 


 


2

















 


FOR INDEMNITY PURSUANT TO
PARAGRAPH 11.2; (B)ACTIONS FOR THE RECOVERY OF THE DEPOSITS FROM ESCROW HOLDER
AS LIQUIDATED DAMAGES OR FOR THE RETURN OF DOCUMENTS PURSUANT TO PARAGRAPH
14.2; (C) ACTIONS TO EXPUNGE A LIS PENDENS OR OTHERWISE TO CLEAR TITLE OF ANY
LIEN WRONGFULLY FILED OR WRONGFULLY IMPOSED BY BUYER; AND (D) REASONABLE
ATTORNEYS’ FEES AND COSTS INCURRED BY SELLER INCIDENT TO CLAUSES (A) THROUGH
(C).


 


	
   

  	
   

  	
   

  
	
  Seller’s
  Initials

  	
   

  	
  Buyer’s Initials

  



 


3.                                       Additional
Expenses Incurred by Buyer.


 


(a)                                  The
parties acknowledge the possibility that the two-stage closing described in
Paragraph 1 may cause Buyer to incur additional improvement costs in the course
of Buyer’s Project - e.g., Buyer
may have to enter into separate design and improvement contracts for Lot 9,
with higher unit costs than would have been available had Buyer used a single
contract covering design and development of all of the Land, or as a result of
Buyer’s mobilizing for the development of Lots 7 & 8 following the First
Closing and having to mobilize again for the development of Lot 9 following the
Second Closing. Any such additional improvement costs that would not have been
incurred by Buyer had there been a single Closing for all of the Land are
referred to herein as “Additional Improvement Costs.”  Additional Improvement Costs shall be determined net of any
savings that are actually realized by Buyer as a result of the two-stage
closing.


 


(b)                                 The
parties have agreed that the first $100,000 of any such Additional Improvement
Costs shall be borne by Buyer at its sole expense (“Buyer’s Share”), and that
Seller bear any excess above $100,000, according to the following procedure:


 


(i)                                     Within
ninety (90) days after the earlier to occur of (i) completion of Buyer’s Project
or (ii) twenty-four (24) months after the Second Closing, Buyer shall calculate
and report to Seller the amount of any Additional Improvement Costs incurred by
Buyer in excess of Buyer’s Share. The report shall be accompanied by reasonable
supporting detail that documents why costs actually incurred were higher than
would have been the case had there been a single Closing. Within thirty (30)
days after receipt of Buyer’s report and accompanying supporting documentation,
Seller shall either approve the determination or provide Buyer a detailed
statement of Seller’s grounds for objection thereto.


 


(ii)                                  If
Seller does agree with Buyer’s determination of the Additional Improvement
Costs, Seller shall reimburse all Additional Improvement Costs in excess of Buyer’s
Share within thirty (30) days thereafter.


 


(iii)                               If
Seller does not agree with Buyer’s determination of the Additional Improvement
Costs, the parties shall meet and confer to see if they are able to resolve the
disagreement within thirty (30) days of Seller’s objection thereto. Thereafter,
within ten (10) days after the written request of either party, each party
shall appoint a qualified engineer who shall have not less than ten (10) years
prior experience in land development practices and costs in the general
vicinity of the Property similar in size and scope to Buyer’s Project. The two
engineers so appointed shall within ten (10) days thereafter appoint a third
qualified engineer (who shall be neutral), and the matter shall be finally
decided within thirty (30) days after appointment of the third engineer by a
majority vote of the three engineers. If one party fails to timely appoint an
engineer, the matter shall


 


3

















 


be finally decided by the
single engineer appointed by the other party. All costs and expenses incurred
for the engineers shall be borne by the parties equally.


 


4.                                       Use
of Lot 9 for Staging Area Following First Closing.  Following the First Closing, Buyer may,
during the term of this Escrow following the First Closing, reasonably go upon
Lot 9 for purposes of storing and staging construction materials and equipment,
but not for any improvement or construction activities. Buyer shall hold
Seller and Lot 9 harmless from any claim, cost, lien, action or judgment
(including, without limitation, Seller’s attorneys’ fees and defense costs)
incurred by Seller as a result of Buyer’s use of Lot 9 for this purpose, and
for personal injury and property damage caused by Buyer or any of its
employees, agents or independent contractors except to the extent arising from
pre-existing conditions or the negligence or misconduct of Seller or its
agents, employees or contractors. Before storing or staging any construction
materials and equipment on Lot 9, Buyer shall secure and maintain, at Buyer’s
sole cost, a commercial general liability and property damage insurance policy
covering Buyer’s activities on the Land, with combined limits of $5,000,000 for
personal injury or death, $5,000,000 for property damage, and $5,000,000 policy
limit for aggregate operations on an occurrence basis, which shall name Seller
as an additional insured. If this Agreement is terminated for any reason prior
to the Second Closing, Buyer shall, as soon as practicable after such termination,
at Buyer’s sole cost, remove its materials and equipment from Lot 9 and repair
any physical damage resulting from its activities thereon and restore Lot 9 to
substantially the same condition it was in prior to Buyer’s entry thereon.


 


5.                                       Other
Matters of Agreement.


 


(a)                                  Brokerage Commission. 
Seller shall indemnify, defend and hold Buyer harmless from claims made
by the brokers identified in Section 12.8 of the Agreement to the extent
arising from the bifurcation of the Closing.


 


(b)                                 Completion of Infrastructure Improvements.  For
purposes of Seller’s obligations under Section 13.2.1 of the Agreement, the
term “Close of Escrow” used therein shall be deemed to refer to the First
Closing.


 


(c)                                  Counterparts. 
This Amendment may be executed in any number of counterparts, each of
which will be deemed to be an original, but all of which together will
constitute one instrument.


 


(d)                                 Effect of Amendment. 
Except to the extent modified hereby, all provisions of the Agreement as
previously amended shall remain in full force and effect.


 


	
  Seller:

  	
  Buyer:

  
	
   

  	
   

  
	
  H. G. FENTON
  COMPANY, a California

  corporation

  	
  BIOSITE
  INCORPORATED, a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael P.
  Neal

  	
   

  	
  By:

  	
  /s/ Christopher
  J. Twomey

  	
   

  
	
  Its:

  	
  President and
  CEO

  	
   

  	
  Its:

  	
  V.P., Finance
  and CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Allen Jones

  	
   

  	
  By:

  	
   

  	
   

  
	
  Its:

  	
  Vice President

  	
   

  	
  Its:

  	
   

  	
   

  



 


4