THIRD AMENDMENT TO MERGER
AGREEMENT
THIS THIRD
AMENDMENT TO MERGER AGREEMENT (this “Third Amendment”)
is made on the 21st day of April, 2009, by and among DUSA
Pharmaceuticals, Inc., a company incorporated in the State of New
Jersey, with principal offices at 25 Upton Drive, Wilmington,
Massachusetts (“DUSA”), Frank Pollard, residing at 3615
Crestview Drive, Long Grove, IL 60047 and Jeffrey Bernstein,
residing at 9739 Monte Mar Drive, Los Angeles, CA 90035
(collectively hereinafter referred to as the “Shareholder
Representatives”) and those certain shareholders of the
former Sirius Laboratories, Inc., a company incorporated in the
State of Illinois (“Sirius Illinois”) set forth on the
signature page hereto (each a “Principal Shareholder”
and collectively the “Principal Shareholders”). DUSA,
the Shareholder Representatives and the Principal Shareholders are
at times referred to each as a “Party” and collectively
as the “Parties.” All capitalized terms used, but not
specifically defined herein, shall have the meaning provided for
such terms in the Merger Agreement (as defined below).
WHEREAS, DUSA,
Sirius Illinois and the Principal Shareholders previously entered
into that certain Merger Agreement, dated December 30, 2005,
as amended, (the “Merger Agreement”) whereby such
parties subsequently effected a merger of Sirius Illinois with and
into a wholly-owned subsidiary of DUSA; and
WHEREAS, the
shareholders of Sirius Illinois appointed the Shareholder
Representatives; and
WHEREAS, the
Parties wish to amend certain terms of the Merger Agreement in
accordance with Section 15.8 of the Merger Agreement, as
provided for herein.
NOW, THEREFORE,
the Parties, in furtherance of the foregoing and for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, intending to be legally bound, agree as
follows:
1. As of the
date of this Third Amendment, the definition of the Milestone
Terminate Date in Section 1.76 of the Merger Agreement shall
be amended to state “Milestone Termination Date means
December 31, 2011.”
2. As of the
date of this Third Amendment, the definition of Net Sales in
Section 1.79 of the Merger Agreement shall be amended by
adding to the end thereof: “(iii) payments received by
DUSA pursuant to the divestiture of all rights, title and interest
to a Product, including the Intellectual Property Rights associated
with any such Product.”
3. As of the
date of this Third Amendment, a new Section 1.115a
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