CURRENT ASSETS

EX-10.9 2 c34725exv10w9.htm EXHIBIT 10.9 exv10w9

Exhibit 10.9

*Confidential Treatment Requested Under
17 C.F.R. §§ 200.80(b)(4) and 240.24b-2

SECOND AMENDMENT TO
EXCLUSIVE DISTRIBUTION AGREEMENT
BETWEEN
AKORN, INC., AND
MASSACHUSETTS BIOLOGICAL LABORATORIES

This Second Amendment (the “Second Amendment”) is entered into as of July 30, 2008 (the “Effective Date”), by and between Massachusetts Biologic Laboratories of the University of Massachusetts Medical School (“MBL”) and Akorn, Inc. (“Akorn”) (each a “Party” and together the “Parties”).

Recitals

WHEREAS, MBL as manufacturer and Akorn as distributor entered into an Exclusive Distribution Agreement for Tetanus-Diphtheria vaccine (“Td vaccine”) on March 22, 2007 (the “Exclusive Distribution Agreement” or the “Agreement”);

WHEREAS, by an Amendment with an effective date of July 3, 2008 (the “First Amendment”), MBL and Akorn modified their Exclusive Distribution Agreement for certain purposes (the “Modified Exclusive Distribution Agreement” or the “Modified Agreement”); and

WHEREAS, since the effective date of the First Amendment, circumstances have arisen that warrant a further amendment to the Modified Exclusive Distribution Agreement;

NOW, THEREFORE, the Parties agree to amend the Modified Exclusive Distribution Agreement as follows:

Amendment

1.		Consideration. The Parties agree that the consideration for this Second Amendment consists of the mutual benefits arising from the modifications set out below.

2.		Amendment to Section 2(a)(1)(1). Section 2(a)(1)(1) of the Modified Exclusive Distribution Agreement is hereby deleted in its entirety, and replaced by the following:

2(a)(1)(1)

Destruction of Multi-Dose Vials to MBL. MBL will accept from Akorn for return [***...***] doses in multi-dose vials for destruction, which were manufactured by MBL and meet the federal guidelines for federal excise tax return and are in Akorn’s possession or control for excise tax purposes (the “Original Doses”). Rather than physically return the Original Doses, Akorn at its cost shall arrange for the

* CONFIDENTIAL TREATMENT REQUESTED — This language has been omitted and filed separately with the Securities and Exchange Commission.

*Confidential Treatment Requested Under
17 C.F.R. §§ 200.80(b)(4) and 240.24b-2

destruction of the Original Doses, on or before August 6, 2008. Akorn shall (i) pay the destruction costs billed by the contractor responsible for the destruction of the Original Doses (the “Contractor”); and (ii) provide MBL with the Contractor’s destruction certificate for the Doses, as well as all required documentation to allow proper processing for Excise Tax purposes.

Amendment to Section 2(a)(1)(2). Section 2(a)(1)(2) is hereby revised by replacing the term [***...***] with the term [***...***] so that the Section, in its entirety, reads as follows:

2(a)(1)(2)

Delivery of Single Dose Vials to Akorn. MBL will make available to Akorn for pickup [***...***] doses in single dose vials (the “Replacement Doses”) in consideration of Akorn’s timely payment of the first installment of the Year 1 Resolution Amount (as such term is defined in Section 2 (a)(3) (Akorn Resolution Payment) below). Of the Replacement Doses, Akorn will pick up [***...***] doses on or before August 15, 2008, and the remainder of the Replacement Doses on or before September 30, 2008. Dating for Replacement Doses will be no less favorable than the dating for single dose vials distributed in Year 1 under Section 2(c) of the Modified Exclusive Distribution Agreement, i.e. no less than 12 months.

Confidentiality. The Parties understand and agree that the terms and conditions of this Second Amendment are and shall at all times remain confidential. Neither Party shall disclose the terms or conditions of this Amendment, except for required disclosures to: (a) tax advisors; (b) attorneys; (c) accountants; or (d) if required to do so by law, regulatory authorities, or legal process.

Effect of Amendment. Nothing in this Second Amendment is intended to modify, alter, reduce or change the rights or obligations of Akorn and MBL in the Modified Exclusive Distribution Agreement, except as expressly stated in this Second Amendment. In the event there is any conflict between the terms of this Second Amendment and the terms of the Modified Agreement, the terms of this Second Amendment shall control.

Continued Effectiveness. Unless specifically modified or amended by the terms of this Second Amendment, all the terms, conditions, liabilities and obligations of the Modified Exclusive Distribution Agreement shall be and remain applicable, in effect, valid, and enforceable between the parties and applicable to this Second Amendment; all in accordance with the terms of the Modified Exclusive Distribution Agreement.

* CONFIDENTIAL TREATMENT REQUESTED — This language has been omitted and filed separately with the Securities and Exchange Commission.

*Confidential Treatment Requested Under
17 C.F.R. §§ 200.80(b)(4) and 240.24b-2

Additional Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Modified Exclusive Distribution Agreement.

Execution in Counterparts. This Second Amendment may be executed in one or more counterparts, each of which when so executed will be deemed to be an original, and all such counterparts together will constitute but one and the same instrument.

In Witness Whereof, the Parties have caused this Amendment to be executed by their duly authorized representatives.


Akorn, Inc.		Massachusetts Biologic
		Laboratories of the University of
		Massachusetts Medical School

By:	/s/ Arthur Przybyl	By:	/s/ Donna M. Ambrosino, M.D.

	Arthur Przybyl		Donna M. Ambrosino, M.D.
	President and CEO		Director

* CONFIDENTIAL TREATMENT REQUESTED — This language has been omitted and filed separately with the Securities and Exchange Commission