Exhibit 10.33
AMENDMENT TO NEW DISTRIBUTION
AGREEMENT
This Amendment to the New
Distribution Agreement dated October 1, 2004 is made this
December 7, 2005 and effective as of January 1, 2006,
between First Horizon Pharmaceutical Cayman Limited (“FIRST
HORIZON CAYMAN”), First Horizon Pharmaceutical Corporation
(“FIRST HORIZON USA”) and Bayer Healthcare
Aktiengesellschaft (“BAYER”).
In consideration of the mutual
promises of the parties, it is agreed as follows:
1.
Section 9.2.1 of the New
Distribution Agreement shall be replaced in its entirety with the
following provision:
9.2.1
Should the NET SALES during any
12-month period within the term of the AGREEMENT surpass US$
$##########, FIRST HORIZON CAYMAN shall pay a success fee of US$
######### (############) to BAYER. Should the NET SALES
during any 12-month period within the term of the AGREEMENT surpass
US$ $##########, FIRST HORIZON CAYMAN shall pay an additional
success fee of US$ ######### (############) to BAYER. Each
calendar month FIRST HORIZON CAYMAN shall provide BAYER with a
monthly report of NET SALES within forty-five (45) days following
each calendar month. Such report shall also cover the NET
SALES of the past 12 month period to verify whether the payment
stipulated according to this Article 9.2.1 is due. Such
payment shall be due within fifteen (15) days following the receipt
of the first monthly report of NET SALES of the past twelve months
above US$ ##########. For purposes of this amendment, FIRST
HORIZON CAYMAN’S milestone payment in the amount of
US$######### shall be due and payable to BAYER on or before
January 15, 2006. This Section 9.2.1 shall become
effective on January 1, 2006.
2.
Section 18.1 of the New
Distribution Agreement shall be amended as follows:
18.1
This AGREEMENT, with the exception
of Section 9.1.1, shall come into effect and full force on the
EFFECTIVE DATE for a term of seven (7) years.
Thereafter, the AGREEMENT will be automatically extended for
consecutive two (2) year periods unless terminated by FIRST
HORIZ
