AMENDMENT NO. 1 TO FINISHED PRODUCT SUPPLY AGREEMENT
AMENDMENT
NO. 1 TO FINISHED PRODUCT SUPPLY AGREEMENT
THIS
AMENDMENT NO. 1 (the “Amendment No. 1”) dated as of April 15, 2005 with an
effective date of April 1, 2005 (the “Amendment No. 1 Effective Date”) to the
Finished Product Supply Agreement (the “Supply Agreement”) dated as of March 5,
2004 and effective as of March 31, 2004, is made and entered into by and between
Inyx, Inc. (“Inyx”), the assignee and successor in interest to Aventis
Pharmaceuticals Inc. and its Affiliates (“Aventis”) and Aeropharm Technology,
LLC, the successor in interest to Aeropharm Technology, Inc. (“Purchaser”).
Capitalized terms used in this Amendment No. 1 shall have the meanings ascribed
to them in of the Supply Agreement, unless as otherwise provided
herein.
The
following terms and conditions of this Amendment No. 1 set forth the
understanding between the Purchaser and Inyx. Except as expressly amended and
modified by this Amendment No. 1, the Supply Agreement shall continue to be and
shall remain in full force and effect in accordance with its terms. The
Purchaser and Inyx (hereinafter referred to collectively as the “Parties”)
hereby acknowledge and agree that, upon the Parties’ execution of this Amendment
No. 1, the Supply Agreement shall be deemed to include the terms and conditions
of this Amendment No. 1, and all references to the Supply Agreement in any form
or manner shall be deemed to include a reference to this Amendment No.
1.
(1) Schedule
3.1 shall be deleted in its entirety and replaced with the following new
Schedule 3.1:
The price
for any Product and any finished HFA Product (as defined in the Product
Acquisition Agreement) commencing on the Amendment No. 1 Effective Date shall be
$4.50/unit. To the extent Purchaser is supplying New Components, the per unit
price shall be reduced by $.23 when canisters are supplied by Purchaser and by
an additional $.34 when valves are supplied by Purchaser.
(2) Section
3.1(b) of the Supply Agreement shall be deleted in its entirety.
(3) The first
sentence of Section 3.1(c) shall be deleted in its entirety and replaced with
the following:
If the
Initial Product Cost is scheduled to increase by more than an aggregate ten
percent (10%) for any calendar year, Inyx shall notify Purchaser, and Inyx and
Purchaser shall consult with each other and take such actions as may be mutually
agreed to (including attempting to renegotiate the price increase of any
individual raw material item or component).
(4) The third
sentence of Section 3.2(a) shall be deleted in its entirety and replaced with
the following:
The date
of each invoice shall be no earlier than ninety (90) days prior to the date the
Products are available for shipment pursuant to Section 2.4.
(5) The first
sentence of Section 4.1 shall be deleted in its entirety and replaced with the
following:
The Term
will commence upon the Effective Date and will continue for a ten (10) year
period thereafter, unless terminated earlier in accordance with the provisions
of Section 4.2 (the “Term”).
(6) The
following sentence shall be added immediately after the last sentence of Section
7.12:
The
parties shall use good faith efforts to negotiate (or cause their respective
Affiliates to negotiate) the terms of a research and development collaboration
related to the Purchaser’s HFA Product on or before June 30, 2005.
This Amendment No. 1 is agreed upon as of the date first written above
by:
| INYX: | PURCHASER: | ||
| INYX, INC. | AEROPHARM TECHNOLOGY, LLC | ||
| By: /s/ Xxxx Xxxxxxx | By: /s/ Xxxxxx X. Xxxxx | ||
|
|
| ||
| Name: Xxxx
Xxxxxxx Title: Chairman & CEO |
Name: Xxxxxx
X Xxxxx Title: |
