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Note: Certain portions of this document have been marked "[C.I.]"
to indicate
that confidential treatment has been requested for this
confidential
information. The confidential portions have been omitted and filed
separately
with the Securities and Exchange Commission.
AMENDMENT AND EXTENSION OF THE
SUPPLY AGREEMENT
This
AMENDMENT AND EXTENSION OF THE SUPPLY AGREEMENT (the "Amendment"),
is
made as of February 8, 2006 (the "Effective Date") by and between
Sirius
Laboratories, Inc., an Illinois corporation headquartered at 100
Fairway Drive,
Suite 130, Vernon Hills, IL 60061 ("SIRIUS"), and Amide
Pharmaceuticals, Inc., a
New Jersey corporation with its principal place of business at 101
East Main
Street, Little Falls, New Jersey 07424 ("AMIDE"). SIRIUS and AMIDE
shall
hereinafter be collectively referred to as the "Parties" or
individually as a
"Party" to this Amendment.
A.
The Parties entered into that certain Supply Agreement dated as of
May
18, 2001, as amended, (the "Original Agreement"), pursuant to which
AMIDE has
been providing to SIRIUS certain manufacturing and supply services
and
activities related to Nicomide; and
B.
The Parties desire to amend the Original Agreement to adjust
certain of
the terms and conditions of the Original Agreement, to clarify
certain matters
relating to the Original Agreement and to extend the term of the
Original
Agreement, as so amended, in each case pursuant to the terms and
conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the various promises and
undertakings set forth herein, the Parties agree as follows:
1.
The phrase "SIRIUS shall not utilize such secondary
manufacturing
facility unless and until" contained in Section 2.2(c) of the
Original Agreement
shall be deleted and replaced with the phrase "without limiting any
other right
or remedy available to SIRIUS at law or in equity, SIRIUS may order
Product from
such secondary manufacturing facility in such quantities as
necessary to
maintain such sources of supply for such period of time that Amide
cannot
deliver Product, but not to exceed twelve (12) weeks beyond the
time that Amide
has remedied the cause of the non-delivery (i.e., Amide can again
meet Sirius'
demand or is willing to offer the Product at a Manufacturer's Fee
equal to or
less than the qualified secondary manufacturing facility), in which
case Sirius
shall continue to order Product from Amide as specified in Section
2.2 (d)(iii).
SIRIUS acknowledges that the manufacturing process and analytical
methods
developed by Amide shall not be provided to any secondary
manufacturer.
2.
The phrase "[c.i.]" in the Section 2.2(e) of the Original
Agreement
shall be replaced with the phrase "[c.i.]".
3.
Schedule A attached hereto sets forth the Manufacturing Fees
provided
for in Section 2.7(a) of the Original Agreement which have been
renegotiated by
the parties and shall beginning with the Effective Date of this
Amendment apply
pursuant to the terms of Section 2.7(a) of the Original
Agreement.
4.
Section 4.2(c) of the Original Agreement (termination if either
Party
changes ownership) shall be deleted in its entirety and be of no
further force
or effect.
5.
Section 4.2 (d) of the Original Agreement ([c.i.]) shall be deleted
in
its entirety and be of no further force or effect.
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6. A
new Section 10.3 shall be added to the Original Agreement which
shall
read as follows:
"10.3 Ownership of Products. [C.I.] acknowledges and agrees that
[C.I.]
shall own [c.i.], and any and all [c.i.]. [C.I.] acknowledges and
agrees
that
[c.i.] developed and owns [c.i.] hereunder and [c.i.]."
7.
The following sentence shall be added to the end of Section 12.2 of
the
Original Agreement which shall read as follows: "In the event of
any
inconsistency between a term or a condition set forth on a Schedule
to this
Agreement and a term or a condition set forth the Agreement itself,
the term or
condition set forth on a Schedule to this Agreement shall
govern."
8.
Section 12.15 of the Original Agreement (Right to Purchase
Product
Formulation) shall be deleted in its entirety and be of no further
force or
effect.
9.
The phrase "; provided however SIRIUS may, without the
