EXHIBIT 10.22
FIRST AMENDMENT TO MANUFACTURING,
DISTRIBUTION AND ASSIGNMENT AGREEMENT
This First Amendment to Manufacturing, Distribution and Assignment
Agreement is entered into on the dates set forth below but effective the 19th
day of June, 1998 by and between National Boston Medical, Inc., hereafter called
"NBM" and DermaGuard, Inc. hereinafter called "DermaGuard".
WHEREAS, NBM and DermaGuard have entered into that certain Manufacturing,
Distribution and Assignment Agreement made effective the 19th day of June, 1998
(hereinafter the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual obligations
set forth herein, the parties do hereby agree to amend the Agreement as follows:
1. The first sentence of the first paragraph of Article 10 of the Agreement is
hereby amended to read as follows:
"This Agreement shall be for a primary term commencing effective the
19th day of June, 1998 and terminating on the date of expiration of
the patent presently pending on the Product presently known as
'VIRUSHIELD'."
2. Article 3G is amended to delete the last word "products" and to insert the
word "Products", in lieu thereof.
3. Article 13 is hereby amended to read as follows:
"NBM does hereby assign, transfer, convey and deliver to DermaGuard
the exclusive right and the ability to use all rights, statements and
claims made by, for, or on behalf of VIRUSHIELD as evidenced by and
pursuant to NBM's patent or patent pending (Application No.
), including, although not limited to, the trademarks and service
marks associated therewith. Further, this assignment shall
automatically extend and apply to and include any further patents,
patent pending applications or related rights obtained by NBM
relative to any of its Products including, although not limited to,
VIRUSHIELD. NBM hereby represents, warrants and covenants that it has
executed no other or prior assignment or transfer of said patents,
patent pending applications or related rights or any portion thereof
or any rights associated therewith. This assignment, transfer,
conveyance and delivery to DermaGuard of the exclusive right and the
ability to use all rights, statements and claims made by, for or on
behalf of the Product, VIRUSHIELD shall include such rights,
statements and claims made by, for or on behalf of the Product
presently known as VIRUSHIELD, whether or not said Product presently
known as VIRUSHIELD is manufactured, marketed or distributed under
the name VIRUSHIELD or any other trade name whatsoever."
4. A new Article 17 is added to the Agreement as follows:
17. Default. In the event either party is in default of any of its
obligations herein, the other party may, after having given written
notice of the specific default complained of and the defaulting party
failing to cure the default complained of within thirty (30) days
after receipt of said written notice, (a) terminate this Agreement by
written notice to the defaulting party and recover any and all
damages including attorneys fees, costs and expenses caused by or
incurred
as a result of said defaults, (b) enforce specific performance of the
defaulting party's obligations, (c) xxx for and recover any and all
damages sustained by said party as a result of the defaults
complained of without terminating this Agreement, (d) obtain a
temporary restraining order to restrain the defaulting party from
continuing the actions complained of, it being hereby acknowledged
that any default under this Agreement by either party shall cause
irreparable harm to the other party thereby entitling the movant to a
temporary restraining order without the necessity of proving
irreparable harm, (e) perform such obligation on behalf of the
defaulting party, who shall immediately reimburse the other party for
the full cost of performing such obligation, of (f) have recourse to
any other remedy to which it may be entitled by law. Notwithstanding
anything herein to the contrary, if any default by either party
herein cannot reasonably be remedied within thirty (30) days after
written notice of default, then such party shall have such additional
time as shall be reasonably necessary to remedy such default before
any remedies of default may be enforced. The prevailing party in any
litigation herein shall be entitled to recover the full amount of its
attorneys fees, costs and expenses incurred in order to enforce and
protect its rights."
5. The last three lines of Article 14 are deleted and the following inserted
in lieu thereof:
"it being the express intent of the parties hereto, that no entity,
other than DermaGuard, shall be granted the right by NBM to compete
with NBM utilizing private labeled Products of NBM or any derivatives
thereof. Nothing in this Article 14 shall be construed as limiting,
modifying or an exception to the exclusive rights granted to
DermaGuard set forth in Article 2 above. It being further agreed and
understood that any private label agreements established by NBM
pursuant to this Article 14 shall expressly prohibit said national
accounts and/or vendors, including direct marketing companies and
distributors with access to limited or specified market groups from
sale of any of the Products including those marketed under any
private label agreements to any Exclusive Customers.
6. All of the terms, covenants, conditions and obligations set forth in the
Agreement except as specifically hereby amended are hereby ratified and
confirmed.
WITNESSES: DERMAGUARD, INC.
/s/illegible By: /s/ Xxxxxx X. Xxxx
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/s/Alverz Ferrovilles President
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NATIONAL BOSTON MEDICAL, INC.
/s/ Xxxxx X Xxxxxx
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/s/ Xxx X. Kristurns By: /s/Xxxxxx X. Xxxxx
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President
