First Amendment To Capital Expenditure And Equipment Agreement between Patheon Pharmaceuticals Inc., and POZEN Inc., dated as of July 10, 2013

 

THIS FIRST AMENDMENT TO CAPITAL EXPENDITURE AND EQUIPMENT AGREEMENT (this “Amendment”) is effective as of                  , 2013 (the “Amendment Effective Date”) between

Pozen and Patheon entered into a Capital Expenditure and Equipment Agreement dated December 19, 2011 (the “Agreement”).  The purpose of this Amendment is to revise the Agreement to include capital required for a new 81/40 mg tablet Product and to update the capital for the 325/40 mg tablet strength Product.

NOW, THEREFORE, in consideration of the rights conferred and the obligations assumed herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:

1.

Amendment

(a)

In the Background Section, the first sentence is deleted and replaced by this following new sentence; “Pozen and Patheon are parties to a Master Pharmaceutical Development Agreement dated August 18, 2010 and a Manufacturing Services Agreement (the “MSA”) dated December 19, 2011 under which Patheon will perform certain manufacturing services (the “Services”) related to Pozen’s PA 325 and PA 81 Tablets (the “Products”).”

(b)

In Section 2, Payment and Expenditures, first paragraph, line six, the reference to “$***” is deleted and replaced with “$*** plus to-be-determined Non-Dedicated Equipment and Facility Modification costs as shown on Schedule A Part III.”

(c)

In Section 2, Payment and Expenditures, paragraph 2 is deleted in its entirety, and replaced with the following new paragraph.

 

Patheon has reviewed the capacity of its existing ***, which will be used for Pozen and also for other Patheon clients, to determine if additional *** will be required to perform the Services for Pozen. Based on the current long range forecasts for the Product and for third party products, Patheon anticipates being able to support most, if not all of the Pozen’s projected forecast for the Product using the existing ***. If for some unforeseen reason, additional *** capacity is required, the Parties will negotiate responsibility for the additional capital in good faith.

(d)

In Section 6, Term; Termination; Effect of Termination on Future Spending, subsection (a), Term, Termination, paragraph (iii) and subsection (b), the third paragraph, are deleted in their entirety since the Parties have entered into an MSA, and this language is no longer relevant.

(e)

Schedule A to the Agreement is deleted its entirety and is replaced with revised Schedule A as attached hereto.

(f)

The “Background” section of this document set forth above is expressly incorporated into this Amendment.

2.

General

All other terms and conditions of the Agreement shall continue unchanged and remain in full force and effect.

IN WITNESS WHEREOF the duly authorized representatives of the parties have executed this Agreement.