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(d)
AMENDMENT AND EXTENSION OF THE
SUPPLY & DEVELOPMENT AGREEMENT
THIS AMENDMENT AND EXTENSION OF THE SUPPLY & DEVELOPMENT AGREEMENT (the
"Amendment"), is made as of February 16, 2006 (the "Effective Date") by and
between SIRIUS LABORATORIES, INC., an Illinois corporation with a place of
business at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 ("SIRIUS"), and
HARMONY LABS, INC., a North Carolina corporation with a place of business at
0000 Xxxxx Xxxx Xxxxxx, Xxxxxx, XX 00000 ("HARMONY"). SIRIUS and HARMONY 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 & Development Agreement
dated as of September 18, 2001 (also entitled as "Manufacturing Agreement"), as
amended, (the "Original Agreement"), pursuant to which HARMONY has been
providing certain manufacturing and supply services and related activities to
SIRIUS; 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. SCHEDULE A to the Original Agreement shall be deleted in its entirety,
and replaced with SCHEDULE A attached to this Amendment, which the Parties
acknowledge and agree identifies the following Products as being the subject of
the Original Agreement as of the Effective Date:
Nicosyn (sodium sulfacetamide 10% and sulfur 5%)
nicotinamide-T
AVAR CLEANSER, AVAR GEL, AVAR E, AVAR GREEN, AVAR E GREEN
2. Harmony shall maintain the drug products listings for the products
listed in Schedule A as the manufacturer in accordance with FDA requirements for
Drug Product Listing.
3. The phrase "[c.i.]" in the 4th paragraph of Section 2.1 of the Original
Agreement shall be replaced with the phrase "[c.i.]".
4. A new paragraph shall be added to the end of Section 2.1 of the Original
Agreement which shall read as follows:
"Notwithstanding the provisions set forth above in this Section 2.1 that
[c.i.], without limiting any other right or remedy available to [c.i.] at
law or in equity, [C.I.] may [c.i.] from third parties and
[c.i.] (a) in [c.i.], or (b) in [c.i.]"
5. The phrase "[c.i.]" in Section 4.2(a) of the Original Agreement shall be
replaced with the phrase "[c.i.]".
6. A new paragraph shall be added to the end of Section 10.1 of the
Original Agreement which shall read as follows:
"Notwithstanding the foregoing, during the term of this Agreement HARMONY
[c.i.]."
7. 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 [c.i.], the [c.i.] as well as [c.i.] any of the [c.i.]."
8. The following sentence shall be added to the end of Section 13.2 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."
9. The following phrase shall be added and inserted into Section 13.5 of
the Original Agreement (Assignment) following the phrase "will not be
unreasonably withheld": "; provided however, either party may, without consent
of the other, assign or otherwise transfer this Agreement and its rights and
obligations hereunder in whole or in part to an Affiliate or in connection with
(a) a sale of all or substantially all of its assets or business to which this
Agreement relates; (b) a merger, reorganization or consolidation in which the
stockholders of a party immediately prior to such transaction cease to own
collectively [c.i.] ([c.i.]%) or more of the voting equity securities of a
successor entity; or (c) the acquisition of [c.i.] ([c.i.]%) or more of the
voting equity securities of a party by a person or group of persons acting in
concert, except that in the case of HARMONY, consent of DUSA shall nonetheless
be required if the manufacture of any Product by a successor under subsections
(a) - (c) above will not be conducted at HARMONY's current facility. ".
10. Notwithstanding Section 4.1 of the Original Agreement, the Parties
agree that the term of the Original Agreement shall continue with respect to
each Product until three (3) years following the Effective Date unless further
extended by mutual agreement or terminated earlier pursuant to the terms of the
Original Agreement.
11. Each of the Parties represents and warrants to the other Party that the
Original Agreement is in full force and effect on the Effective Date and that,
as of the Effective Date, neither of the Parties is in default in the
performance of its obligations under the Original Agreement, nor are there any
circumstances that with the passage of time or the giving of notice, or both,
could constitute a default under the Original Agreement.
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12. Except as expressly provided above, all terms and conditions of the
Original Agreement shall remain in full force and effect and shall apply to this
amendment and are incorporated herein by reference as though fully set forth.
IN WITNESS WHEREOF, the Parties have caused this agreement to be executed
by their respective duly authorized officers as of the Effective Date, each copy
of which shall for all purposes be deemed to be an original.
SIRIUS LABORATORIES, INC. HARMONY LABS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ W. A. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: W.A. Xxxxx
Title: President and CEO Title: President
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EXHIBIT A
27-Jan-06
DESCRIPTION HARMONY ITEM # SIZE CURRENT PRICE
---------------- -------------- ----- -------------
Avar Gel 6267BP 6gm $[c.i.]
Avar Gel 6267CP 45gm $[c.i.]
Avar Green 6268BP 6gm $[c.i.]
Avar Green 6268CP 45gm $[c.i.]
Avar Cleanser 6266BP 6gm $[c.i.]
Avar Cleanser 6266GP 8oz $[c.i.]
Avar E 6271AP 6gm $[c.i.]
Avar E 6271BP 45gm $[c.i.]
Avar E Green 6272AP 6gm $[c.i.]
Avar E Green 6272BP 45gm $[c.i.]
Nicomide T Gel 6273AP 6gm $[c.i.]
Nicomide T Gel 6273BP 30gm $[c.i.]
Nicomide T Cream 6278AP 3gm $[c.i.]
Nicomide T Cream 6878BP 30gm $[c.i.]
Cetam Gel 6275AP 6gm $[c.i.]
Cetam Gel 6275BP 30gm $[c.i.]
BenNic 6276AP 3gm $[c.i.]
BenNic 6276GP 125ml $[c.i.]
FOOTNOTE: THERE IS AN [C.I.] FOR ANY OF THE ABOVE PRODUCTS WHEN [C.I.].
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