EXHIBIT 10.9
CONTINGENT MANUFACTURING ASSIGNMENT AGREEEMENT
THIS CONTINGENT MANUFACTURING
ASSIGNMENT AGREEMENT (this “ Assignment ”),
dated as of November 7, 2007, is made by MiddleBrook
Pharmaceuticals, Inc. , a Delaware corporation (“
MiddleBrook ”) and Lex Pharmaceuticals, Inc. ,
a Delaware Corporation (“ Lex ”).
BACKGROUND STATEMENT
MiddleBrook and Lex are parties to an
Asset Purchase Agreement, dated as of the date of this Assignment
(the “ Purchase Agreement ”), and the Related
Agreements (as defined in the Purchase Agreement), pursuant to
which (i) Lex has purchased from MiddleBrook certain assets,
including the Part 1 Assets (as such term is defined in the
Purchase Agreement) and (ii) MiddleBrook and Kef have entered
into an Inventory Consignment Agreement, dated as of the date of
this Assignment (the “ Consignment Agreement ”),
pursuant to which Kef Pharmaceuticals, Inc. (“ Kef
”) has consigned the Part 1 Assets to MiddleBrook for
sale by MiddleBrook in the ordinary course of MiddleBrook’s
business. Pursuant to that certain Manufacturing Agreement, as
amended, between MiddleBrook and Ceph International Corp., a
Commonwealth of Puerto Rico corporation (“ Ceph
”), attached as Schedule A to this Assignment
(the “ Manufacturing Agreement ”), MiddleBrook
has contracted with Ceph to manufacture certain of the Products (as
defined in the Purchase Agreement) pursuant to purchase orders that
may be submitted from time to time by MiddleBrook. In the event
that the Consignment Agreement terminates, Lex desires to receive
from MiddleBrook an assignment of its rights and obligations under
the Manufacturing Agreement and desires for Ceph to consent to such
assignment. This Assignment sets out the agreement of the parties
hereto regarding the contingent assignment of the Manufacturing
Agreement from MiddleBrook to Lex.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties
hereto agree, for themselves, and their respective successors and
assigns, as follows:
1. Assignment . Upon the
date that all of the conditions set forth in Section 2
shall have been satisfied (the “ Assignment Date
”):
(a) MiddleBrook hereby assigns
all of its right, title and interest in, to and under the
Manufacturing Agreement to Lex effective upon satisfaction of the
conditions set forth in Section 2 ;
(b) Lex hereby accepts such
assignment and agrees to assume and perform all of the obligations
of MiddleBrook under the Manufacturing Agreement arising as of or
after the Assignment Date effective upon satisfaction of the
conditions set forth in Section 2 ; provided ,
that Lex shall have no obligation to assume, perform or discharge
any obligation of MiddleBrook th
