EXHIBIT
10.212


 


MUTUAL TERMINATION OF 

WAREHOUSE DISTRIBUTION CONTRACT

between


UPS SUPPLY CHAIN MANAGEMENT, INC.


and


CYGNUS, INC.


Dated


August 25, 2000


 


This Mutual Termination (“Termination”), having an
Effective Date of September 10, 2002, of the Warehouse Distribution Contract
(“Contract”), having an effective date of August 25, 2000, and amended pursuant
to a First Amendment dated February 9, 2001, a Second Amendment dated March 1,
2001, a Third Amendment dated June 1, 2001, a Fourth Amendment dated February
18, 2002, a Fifth Amendment dated February 27, 2002, a Sixth Amendment dated
March 7, 2002, a Seventh Amendment dated May 23, 2002, and an Eighth Amendment
dated June 20, 2002, collectively the “Amendments,” is between UPS Supply Chain
Management, Inc. (hereinafter “SCM”), f/d/b/a Livingston Healthcare Services
Inc., having a principal place of business at 220 Lake Drive, Newark, DE 19702,
and Cygnus, Inc. (hereinafter “Client”), having its principal place of business
at 400 Penobscot Drive, Redwood City, CA 94063.


 


RECITALS


 


WHEREAS, SCM and Client now wish to mutually terminate the Contract and
its Amendments;


 


NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereby agree to terminate the Contract and its Amendments
as follows


 


1.               This Mutual
Termination is made according to Section 5.1 of the Contract.


 


2.               Commencing
September 1, 2002, the Logistics Fee Schedule will be as set forth on Exhibit
A.1 to this Termination.


 


3.               Within ten (10)
calendar days of the Effective Date of this Termination, Client will assume all
responsibilities for order processing, and for the month in which Client
assumes order processing responsibilities, SCM will bill Client on a pro-rated
basis for the monthly fee.


 


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4.                On or before
October 31, 2002, Client will transfer the dispensing and warehousing services
currently provided by SCM to a third party distributor or its designee.  SCM will cooperate fully with Client and its
third-party distributor and any designee in this transfer. For the month in
which Client transfers dispensing and warehousing services, SCM will bill
Client on a pro-rated basis for the monthly fee.


 


5.               SCM will send in a
timely manner any prescriptions received after the date on which Client
transfers dispensing and warehousing services to Client’s third-party
distributor or its designee, provided that such third-party distributor or its
designee is licensed to dispense products into the state for which the prescription
was received.  In consideration for
performing this service, Client will pay SCM a one-time fee of *** on January
31, 2003.  SCM will maintain its
facsimile machine in Rancho Cucamonga CA through January 31, 2003 to receive
any such prescriptions.


 


6.               On or before
October 31, 2002, Client will notify SCM where to ship all Products then in
SCM’s possession or control, all packaging, shipping and labeling materials
related thereto, all invoice forms, any equipment or property purchased by
Client, including the Dedicated Assets set forth on Exhibit C of the Contract,
as amended, and all customer and sales representative lists and other
confidential or proprietary information provided under the Contract by Client
or developed by SCM in relation to the Contract, and any information provided
in order that SCM may have obtained any government licenses and permits.  SCM shall be compensated at the accessorial
labor rate set forth in Exhibit A.1 to this Termination in returning property
of Client.


 


7.               As additional
consideration, Client will pay SCM a one-time payment of *** to fully
compensate SCM for its start-up costs and ongoing services prior to September
1, 2002.  Such payment shall be made
within thirty (30) calendar days of receipt of an invoice in this amount from
SCM.


 


8.               The parties
mutually release each other from any claims arising from or incident to the
Contract or this Termination of the Contract. 
The obligations to make the payments set forth in Paragraphs 2, 3, 5,
and 7 above, the obligations of both parties under Article IV of the Contract,
the rights and obligations of both parties under Article VII, and the
applicable definitions and general provisions set forth in Articles I and IX of
the Contract shall survive this Termination.


 












*** Certain information on this page has been omitted and filed
separately with the Commission. 
Confidential treatment has been requested with respect to the omitted
portions.


 


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IN WITNESS WHEREOF, the parties have executed this Mutual Termination
to the Contract.


 


 


	
  UPS SUPPLY CHAIN MANAGEMENT, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ Peter
  Westerman

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   Peter
  Westerman

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   SVP BD

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   9/12/02

  	
   

  
	
   

  	
   

  
	
  CYGNUS, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ John C
  Hodgman

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   John C Hodgman

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Chairman, President & CEO

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   September 9, 2002

  	
   

  
						



 


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