AMENDMENT TO DISTRIBUTION AGREEMENT
* Certain portions of this exhibit have been omitted pursuant
to a request for confidential treatment and those portions have been filed
separately with the Securities and Exchange Commission.
AMENDMENT
TO DISTRIBUTION AGREEMENT
This
AMENDMENT TO DISTRIBUTION AGREEMENT (this "Amendment') is made and entered
into
as of December 13 2006, by and among SKINVISIBLE PHARMACEUTICALS, INC., a Nevada
corporation ("Skinvisible"), DERMAL DEFENSE, INC., a Nevada
corporation
("DDI”) and XX XXXXXX & ASSOCIATES, LLC, an Ohio limited liability company
("JDN")
(Skinvisible, DIM and JDN are collectively referred to as the
"Parties").
RECITALS
WHEREAS,
Skinvisible and DDI previously entered into a Distribution Agreement
(the
"Agreement") dated
as
of February 21, 2005 whereby Skinvisible granted DDI the right to manufacture,
distribute,
market,
sell and promote the Product
throughout
the Territory;
WHEREAS,
pursuant to the
terms
of the Agreement, DDI appointed JDN as a sub-distributor
under the Agreement as documented by the Distribution Agreement (the "JDN
Agreement") between DDI and JDN dated as of April 28, 2005;
WHEREAS,
DDI and JDN have amended and restated the terms of the JDN Agreement in its
entirety pursuant to the Amended and Restated Distribution Agreement (the
"Amended JDN Agreement") dated as of July 1, 2006; and
WHEREAS,
the Parties wish to
enter
into this Amendment to amend the terms of the Agreement
as provided herein and
to
grant certain rights and to impose certain obligations upon JDN
as
provided herein.
NOW,
THEREFORE, in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
AGREEMENTS
| 1. |
Incorporation
of Recitals.
The Parties acknowledge that the foregoing Recitals are true and
correct
and are incorporated herein as material terms of this
Amendment.
|
| 2. |
Definitions.
Capitalized terms not defined herein shall have the meanings assigned
to
them in the Agreement.
|
| 3. |
Definition
of Product. Section 1.5 of the Agreement is amended and restated in
its entirety as follows:
|
"Product"
means
Skinvisible's proprietary antimicrobial hand sanitizer product incorporating
the
active ingredient Triclosan and any the other
active ingredients included in the US FDA Monograph (see Schedule A), exclusive
of Chlorhexidine,
gltuconate
or iodine or any combinations of iodine or
Chlorhexidine
gluconate or Chlorhexidine.
.
| 4. |
Exclusivity.
|
4.1
Skinvisible.
Skinvisible
agrees and acknowledges that
so
long as the Agreement is
in
effect it shall not market or sell, or grant a Party other than DDI the right
to
market and sell, within
the Territory the Product.
4.2 DDI. DDI
agrees
and acknowledges that so long as the Amended JDN Agreement is in effect it
shall
not market or sell, or grant a Party other than JDN the right to market and
sell, within the Territory the Product. Skinvisible hereby consents to the
grant
of exclusivity by DDI to JDN as provided in this Section 4.2.
| 5. |
Royalty
Obligations of DDI.
*
|
| 6. |
Royalty
Payment by
JDN. *
|
| 7. |
Rights
and Obligations of JDN. The
Parties
agree and acknowledge that JDN shall be permitted to manufacture
the
Product as such right is granted to DDI pursuant to the Agreement
as
amended by
this Amendment.
JDN
shall be entitled to transact directly with Skinvisible for ordering
and
payment related to
raw materials such as polymer and related supplies. JDN shall be
entitled
to negotiate directly
with
Skinvisible for the pricing of raw materials and supplies. JDN shall
be
responsible for the payment for all JDN purchases from
Skinvisible-
The rights granted to JDN are limited to those explicitly set forth
in
this Section 7, JDN agrees and acknowledges
that:
|
7.1 JDN
shall
indemnify and hold DDI and Skinvisible harmless for any breach by
JDN
of
the Agreement or this Amendment;
*
The
confidential portion has been omitted and filed separately with the Securities
and Exhange Commission
2
7.2
Other
than negotiations with Skinvisible regarding pricing of raw materials, supplies
or the Product, JDN shall not enter into any Agreement with Skinvisible amending
any provision of the Agreement or Amendment without the prior written approval
of DDI.
7.3 A
breach
by JDN of this Section 7,
the
Agreement or this Amendment shall be deemed
a
breach
by
JDN of
the Amended
JDN Agreement which shall entitle DDI to exercise all of
DDI's
rights under the Amended
JDN Agreement.
7.4
A breach
by JDN of this Section 7, the Agreement or this Amendment shall entitle
Skinvisible to exercise its remedies under the
Agreement against JDN including a termination of the rights granted to JDN
under
the Amended JDN Agreement and this Amendment; provided however, a breach by
JDN
shall not be deemed a breach by DDI of its obligations under the Agreement
or
the Amendment. Notwithstanding any rights that Skinvisible may have against
JDN
for any breach of this Section 7, DDI shall be primarily liable and Skinvisible
shall be entitled to recover any damages incurred as a result of a breach by
JDN
of the provisions of this Section 7.
| 8. |
Notice
of JDN Breach.
Skinvisible agrees that it shall notify DDI of any breach by JDN
of the
Agreement and/or this Amendment, including without limitation the
obligation to pay royalty fees pursuant to Section
6.
|
| 9. |
Miscellaneous.
|
9.1 Controlling
Language, Reaffirmation.
To
the
extent any term(s)
or
condition(s) in
the
Agreement shall
contradict
or
be
in
conflict
with
the
amended terms
as
set
forth
in
this
Amendment,
such terms and conditions are hereby deemed modified and amended
accordingly,
upon the
effective date hereof, to reflect the terms as so amended herein. All terms
of
the Agreement,
as amended hereby, shall be and remain in full force and effect and shall
constitute the
legal, valid, binding and enforceable obligations of the Parties hereto. As
of
the date of this Amendment,
the Parties herein restate, ratify and reaffirm each and every term and
condition set forth
in
the Agreement and the Amended JDN Agreement as amended herein. There are no
other changes
to the Agreement and the Amended JDN Agreement except for the changes
specifically set
forth
herein. Notwithstanding the foregoing, each Party acknowledges and agrees that
in addition
to amending certain terms and conditions of the Agreement and the Amended
JDN Agreement,
this Amendment restates certain terms and conditions previously set forth in
the
Agreement and the Amended JDN Agreement. Any terms or conditions set forth
in
the Agreement
and the Amended JDN Agreement that are nut specifically amended or modified
by this
Amendment, even if not specifically restated herein, shall remain binding on
the
Parties
hereto.
9.2
Consent
to Amendments.
The
provisions of this Amendment may be amended only
by
the written agreement of all of the Parties hereto. Any waiver, permit, consent
or approval
of any kind or character on the part of any Party of any provisions or
conditions of this Amendment
must he made in writing and will be effective only to the extent specifically
set forth in
such
writing. No Party may assign its rights hereunder without written consent of
the
other Parties,
and no such assignment shall relieve a Party of its obligations
hereunder.
3
9.3
Severability.
Whenever
possible, each provision of this Amendment will be interpreted
in such manner as to be effective and valid under applicable law,
but
if
any provision
of this
Amendment is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Amendment.
9.4
Binding
Effect. This
Amendment will be binding
upon
and
inure to the benefit of and be enforceable against
the Parties hereto and their respective heirs, legal
representatives,
successors
and assigns.
9.5
Governing
Law.
This
Amendment will in all respects be governed by, and enforced and interpreted
in
accordance with the substantive law of, without regard to the law of conflicts
of the State of Nevada. Any dispute arising from
or
related to this Amendment shall be decided by the courts sited in Xxxxx County,
Nevada, to the exclusion of all other venues.
9.6 Headings. Section
and article headings used in this Amendment have no legal significance and
are
used solely for convenience of reference,
9.7
Counterparts. This
Amendment may be executed in counterparts, each which will he
deemed
an
original and all of which, taken together, will constitute one
instrument.
9.8 Attorneys
Fees.
The
prevailing Party in any action brought pursuant to this
Amendment
shall be entitled to recover its reasonable attorneys' fees
and
court
costs.
IN
WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first
set
forth above.
SKINVISIBLE
PHARMACEUTICALS, INC.
/s/
Xxxxx Xxxxxxx
By:
Xxxxx
Xxxxxxx
Its.
President
DERMAL
DEFENSE, INC.
/s/
G.
Xxxxxxx Xxxxx
By:
G.
Xxxxxxx Xxxxx
Its:
President & CEO
XX
XXXXXX
& ASSOCIATES, LLC
/s/
J.
Xxxxxxx Xxxxxx
By:
J.
Xxxxxxx Xxxxxx
Its:
President
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