<PAGE>
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.
EXHIBIT 10(F)
PERRIGO SUPPLY AGREEMENT
<PAGE>
TABLE OF CONTENTS
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PAGE
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<C>
Article I -
DEFINITIONS..................................................
4
Article II -
CONFIDENTIALITY.............................................
7
2.1
Confidentiality.................................................
7
Article III - SUPPLY OF FINISHED
PRODUCT................................. 7
3.1
Supply..........................................................
7
3.2 Regulatory
Approval............................................. 7
3.3
Repackaging.....................................................
7
3.4 Sales by
Purchaser..............................................
7
3.5 Brand Name for
[c.i.]........................................... 8
Article IV - MINIMUM COMMITMENT, PURCHASE ORDERS &
FORECASTS............. 8
4.1
Forecast........................................................
8
4.2 Purchase
Orders.................................................
8
4.3 Purchaser's Modification or
Cancellation........................ 8
Article V - TESTING
INSPECTION.........................................
8
5.1
Records.........................................................
8
5.2 Certificate of
Analysis......................................... 9
5.3 Perrigo
Testing.................................................
9
5.4 Purchaser
Testing............................................... 9
5.5
Rejection.......................................................
9
5.6
Claims..........................................................
9
Article VI - PRICES AND TERMS OF
SALE.................................... 9
6.1
Price...........................................................
9
6.2
Invoice.........................................................
10
6.3 Inconsistent
Terms.............................................. 10
6.4
Taxes...........................................................
10
6.5 Collection Costs and
Interest................................... 10
Article VII -
ROYALTIES..................................................
10
7.1 Amount of
Royalty............................................... 10
7.2 Intercompany
Sales.............................................. 10
7.3 Royalties on Sales for
Non-monetary Consideration............... 10
7.4
Currency........................................................
10
Article VIII -
WARRANTIES................................................
11
8.1 Perrigo
Warranties..............................................
11
8.2 Purchaser
Warranties............................................ 11
8.3
Recalls.........................................................
11
</TABLE>
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<TABLE>
<S>
<C>
Article IX -
INDEMNIFICATION.............................................
11
9.1 Indemnity by
Purchaser.......................................... 11
9.2 Indemnity by
Perrigo............................................ 11
9.3
Cooperation.....................................................
12
Article X - TERM AND
TERMINATION......................................... 12
10.1
Term............................................................
12
10.2
Termination.....................................................
12
10.3
Duties Upon
Termination......................................... 12
10.4
Continuing
Obligations.......................................... 13
Article XI -
MISCELLANEOUS...............................................
13
11.1
Governing
Law................................................... 13
11.2
Export of Finished
Product...................................... 13
11.3
Notices.........................................................
13
11.4
Partial
Invalidity..............................................
13
11.5
Entire
Agreement................................................
13
11.6
Assignability...................................................
14
11.7
Successors and
Permitted Assigns................................ 14
11.8
Excused
Non-Performance.........................................
14
11.9
Announcements...................................................
14
11.10
Trademarks......................................................
14
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<PAGE>
EXHIBIT 10(F)
SUPPLY AGREEMENT
THIS
SUPPLY AGREEMENT (this "Agreement") made as of the 21st day of
October, 2005 (the "Effective Date"), by and between L. Perrigo
Company
("Perrigo"), having its principal offices at 515 Eastern Avenue,
Allegan,
Michigan 49010 USA and Sirius Laboratories, Inc ("Purchaser"),
having its
principal office at 100 Fairway Drive, Suite 130, Vernon Hills,
Illinois 60061.
RECITALS
1.
Perrigo and the Purchaser are each engaged in the business of
manufacturing, marketing and selling various pharmaceutical
products.
2.
Perrigo and the Purchaser desire to enter into this Agreement to
set
forth the terms and conditions of purchase and sale of Finished
Products
(defined below) that Perrigo will manufacture and sell to the
Purchaser and the
Purchaser will purchase from Perrigo.
3.
Purchaser desires [c.i.] the Finished Product from Perrigo
[c.i.]
(defined below) and desires to sell such [c.i.] to Third
Parties.
4.
Purchaser desires that Perrigo be the exclusive third party
manufacturer
of the requirements of Finished Product to be incorporated into
[c.i.] to
Purchaser and its Affiliated Companies, and Perrigo desires to be
the exclusive
third party supplier to Purchaser and its Affiliates of their
requirements for
Finished Product to be included in [c.i.].
5.
Purchaser and its Affiliated Companies desire that Purchaser be
granted
exclusive rights to purchase Finished Product to be incorporated
into [c.i.] for
resale to third parties and Perrigo desires to grant Purchaser
exclusive rights
to purchase Finished Product from Perrigo for to be incorporated
into [c.i.] for
resale to third parties.
NOW,
THEREFORE, IT IS AGREED between the parties as follows:
ARTICLE I - DEFINITIONS
1.1
"The Act" shall mean the Federal Food, Drug, and Cosmetic Act, as
it
may be amended from time-to time, and regulations promulgated
thereunder.
1.2
"Affiliate" as applied to Perrigo or Purchaser shall mean any
legal
entity other than Perrigo or Purchaser, as the case may be, in
whatever country,
organized, controlling, controlled by or under common control with
Perrigo or
Purchaser. An entity is deemed to be in control of another entity
(controlled
entity) if the former owns directly or indirectly at least [c.i.],
of the
outstanding voting equity of the controlled entity (or other equity
or ownership
interest if such controlled entity is other than a corporation) or
otherwise has
the power to direct or cause the direction of the management of the
controlled
entity.
1.3
[c.i.] means Purchaser's apparatus used for the purpose [c.i.]
including but not limited to those contained in the Finished
Product, [c.i.] of
the human body.
1.4
"Batch" shall mean [c.i.] Units.
1.5
"cGMPs" shall mean all applicable current Good Manufacturing
Practices
promulgated by the FDA.
<PAGE>
1.6
"Contract Quarter" shall mean three (3) successive calendar
months
during the term of this Agreement commencing on January 1, April 1,
July 1 and
October 1. The first Contract Quarter shall commence on the
Effective Date and
expire on the day before the commencement of the next Contract
Quarter.
1.7
"Contract Year" shall mean a twelve (12) consecutive month period
that
(a) for the First Contract Year, commences on the Effective Date
and expires on
the day prior to the anniversary of the Effective Date if such date
is the last
day of a Contract Quarter, or expires on the last day of the
Contract Quarter in
which the Effective Date falls; and (b) for every Contract Year
after the First
Contract Year, commences on the first day of the next Contract
Quarter (the
"Anniversary Date") and each succeeding Anniversary Date during the
term of this
Agreement.
1.8
"Drug" shall mean the chemical compound commonly referred to as
Clindamycin 1%.
1.9
"FDA" shall mean the United States Food and Drug Administration, or
any
successor entity thereto.
1.10
"Facility" shall mean Perrigo's processing site located in Bronx,
New
York, or such other Perrigo facility as agreed to by the
parties.
1.11
"Finished Product" shall mean [c.i.]
1.12
[c.i.] means a [c.i.] designed and manufactured by Purchaser to
be
sold to third parties marketed for the for [c.i.] on the [c.i.]
that contains a
[c.i.].
1.13
"Net Sales Value" means the gross invoiced sales for [c.i.] [c.i.]
by
Purchaser or its Affiliates or sub-licensees or its marketing
partners, after
deduction of the following amounts:
(a) [c.i.], including [c.i.] to [c.i.] and excluding any [c.i.]
in
relation to [c.i.] [c.i.];
(b) [c.i.] given or made for [c.i.] of previously sold [c.i.]
[c.i.];
and
(c) any [c.i.] (including any [c.i.] on the [c.i.] and [c.i.].
1.14
"Marketing Quarter" shall mean three (3) successive calendar
months
during the term of this Agreement commencing on the first day of
the month of
the first commercial sale. The first Marketing Quarter shall
commence on the
earlier of (a) May 1, 2006; or (b) the first day of the month of
the first
commercial sale; and shall expire on the day before the
commencement of the next
Marketing Quarter.
1.15
"Marketing Year" shall mean a twelve (12) consecutive month
period
that (a) for the first Marketing Year, commences on the first day
of the first
Marketing Quarter and expires on the day prior to the anniversary
of the first
Marketing Quarter; and (b) for every Marketing Year after the First
Marketing
Year, commences on the first day of the next Marketing Quarter (the
"Anniversary
Date") and each succeeding Anniversary Date during the term of this
Agreement.
1.16
"Processing" shall mean the manufacturing and packaging procedures
to
be undertaken by Perrigo for Purchaser in order to create Finished
Product
accordance with the Specifications. "Process", "Processing" and
"Processed"
shall have comparable meanings as the context requires.
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<PAGE>
1.17
"Proprietary Information," unless otherwise agreed to in
writing,
includes all information or data first communicated from one party
(the
"Disclosing Party") to the other (the "Receiving Party"), whether
in writing,
orally, by observation or other sensory detection, including,
without
limitation, trade secrets, know-how, compilations, formulae,
processes, business
plans, requirements, timelines, formulations, technical
information, new product
information, methods of product delivery, development strategies,
manufacturing
capabilities, test procedures and results, product samples,
specifications,
material safety data sheets, marketing and business plans, as well
as other
scientific, clinical, commercial and other information, data or
techniques
considered confidential in nature. Proprietary Information shall
not include
information which:
(a) at the time of disclosure, is properly in the public domain
or
thereafter properly becomes part of the public domain by
publication or
otherwise through no fault or act of the Receiving Party, it's
Affiliates,
employees or agents;
(b) the Receiving Party can conclusively establish was properly in
its
possession prior to the time of the disclosure to it;
(c) is independently made available to the Receiving Party in
good
faith by a third party who has not violated a confidential
relationship with the
Disclosing Party;
(d) is independently developed by the Receiving Party, without use
of
the other party's information, data or materials, as evidenced by
the Receiving
Party's written records;
(e) is required to be disclosed by legal process;
(f) is information which is required to be included in patent
applications filed hereunder or required to be provided to a
government agency
in order for Purchaser to obtain approvals to market the Finished
Product or for
Perrigo to make the Finished Product for Purchaser hereunder;
provided, however,
that no Proprietary Information of Purchaser or Perrigo will be
disclosed in any
such patent application or otherwise without the prior written
consent of the
other party; or
(g) is information which is required to be disclosed to
customers,
users and prescribers of Finished Product or which is reasonably
necessary to
disclose in connection with the ethical marketing of Finished
Product; provided,
however, that no Proprietary Information of a party will be so
disclosed without
the prior written consent of the other party.
The
exclusions enumerated above shall not apply to any specific
information
merely because it is included in more general non-proprietary
information nor to
any specific combination of information merely because individual
elements, but
not the combination, are included in non-proprietary
information.
1.18
"Specifications" shall mean the final specifications for the
Finished
Product [c.i.], the written specifications for the product and
package label
mutually agreed to by the parties, as well as any revised
specifications and/or
additional specifications for the Finished Product implemented by
Perrigo from
time to time in writing.
1.19
"Territory" means the United States of America, its territories
and
possessions.
1.20
"Third Party" means any person, firm or corporate body other
than
[Purchaser], Perrigo, a Purchaser Affiliate or a Perrigo
Affiliate.
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<PAGE>
1.21
"Unit" means Finished Product retail packaged in a primary
container
consisting of [c.i.] with (a) Purchaser's logo; (b) Purchaser's
graphics; and
(c) the phrase "Dist. By: Sirius Laboratories, Inc., Vernon Hills,
IL 60061" in
lieu of [c.i.]
ARTICLE II - CONFIDENTIALITY
2.1
Confidentiality. In connection with the process and the
business
relationship contemplated by this Agreement, each party may
disclose Proprietary
Information to the other. Proprietary Information and know-how
represent such
party's valuable trade secrets and business assets. In
consideration of the
mutual benefits that each party will receive, the disclosure to
each party of
the Proprietary Information of the other and the mutual promises
set forth in
this Agreement, the parties agree that all Proprietary Information
will be held
in confidence for a period of [c.i.] and not used, disclosed to
others or in any
way exploited for the Receiving Party's own benefit or for any
purpose without
the Disclosing Party's prior written consent other than as
permitted by this
Agreement. A party receiving Proprietary Information will use such
information
only to carry out its obligations hereunder and will not use such
information
for its own benefit or for the benefit of others or in any way
inconsistent with
this Agreement. The parties also agree to restrict dissemination of
Proprietary
Information to those of their employees and agents who have an
actual need to
know, have been informed of the requirements of this Agreement and
have a legal
obligation to protect the confidentiality of such Proprietary
Information. The
parties further agree that all Proprietary Information disclosed by
one party to
the other remains the sole property of the Disclosing Party and
neither party
obtains any right or license of any kind (whether by implication or
otherwise)
to Proprietary Information so disclosed. Upon written request, the
parties will
promptly return all documents and copies referencing the other's
Proprietary
Information, except for one copy of written materials, which may be
retained in
the files of the Receiving Party's legal counsel. Each party hereby
acknowledges
that unauthorized disclosure or use of the Proprietary Information
could cause
irreparable harm and significant injury to the Disclosing Party,
which may be
difficult to ascertain. Accordingly, each party agrees that the
Disclosing Party
shall have the right to seek and obtain immediate injunctive relief
from any
breach of this Agreement, in addition to any other rights or
remedies it may
have.
ARTICLE III - SUPPLY OF FINISHED PRODUCT
3.1
Supply. Purchaser will purchase exclusively from Perrigo, and
Perrigo
will be the exclusive, worldwide supplier to Purchaser for, all of
Purchaser's
and its Affiliates' requirements of Finished Product or Drug that
is delivered
[c.i.] for the term of this Agreement. Perrigo shall sell
exclusively to
Purchaser Finished Product for the limited purpose of being sold
[c.i.] the
Territory. Sales of Finished Product by Affiliates of Purchaser
shall be deemed
to be made by Purchaser for this purpose, and Perrigo may assign to
its
Affiliates, as appropriate, responsibilities for compliance or
partial
compliance with its responsibilities hereunder.
3.2
Regulatory Approval. [c.i.] will be solely responsible fo