Exhibit
10.33


 


AMENDMENT
TO NEW DISTRIBUTION AGREEMENT


 


This Amendment to the New Distribution Agreement
dated October 1, 2004 is made this December 7, 2005 and effective as
of January 1, 2006, between First Horizon Pharmaceutical Cayman Limited (“FIRST
HORIZON CAYMAN”), First Horizon Pharmaceutical Corporation (“FIRST HORIZON USA”)
and Bayer Healthcare Aktiengesellschaft (“BAYER”).


 


In consideration of the mutual promises of
the parties, it is agreed as follows:


 


1.                                       Section 9.2.1
of the New Distribution Agreement shall be replaced in its entirety with the
following provision:


 


9.2.1                     Should
the NET SALES during any 12-month period within the term of the AGREEMENT
surpass US$ $##########, FIRST HORIZON CAYMAN shall pay a success fee of US$ #########
(############) to BAYER.  Should the NET
SALES during any 12-month period within the term of the AGREEMENT surpass US$ $##########,
FIRST HORIZON CAYMAN shall pay an additional success fee of US$ ######### (############)
to BAYER.  Each calendar month FIRST
HORIZON CAYMAN shall provide BAYER with a monthly report of NET SALES within
forty-five (45) days following each calendar month.  Such report shall also cover the NET SALES of
the past 12 month period to verify whether the payment stipulated according to
this Article 9.2.1 is due.  Such
payment shall be due within fifteen (15) days following the receipt of the
first monthly report of NET SALES of the past twelve months above US$ ##########.  For purposes of this amendment, FIRST HORIZON
CAYMAN’S milestone payment in the amount of US$######### shall be due and
payable to BAYER on or before January 15, 2006.  This Section 9.2.1 shall become
effective on January 1, 2006.


 


2.                                       Section 18.1
of the New Distribution Agreement shall be amended as follows:


 


18.1                        This AGREEMENT, with the
exception of Section 9.1.1, shall come into effect and full force on the
EFFECTIVE DATE for a term of seven (7) years.  Thereafter, the AGREEMENT will be
automatically extended for consecutive two (2) year periods unless
terminated by FIRST HORIZON CAYMAN giving twelve (12) months prior written
notice expiring at the end of the of the initial period or any subsequent two (2) year
period.  Prior to the commencement of any
two (2) year period, the PARTIES may renegotiate the commercial terms of this
AGREEMENT according to the then prevailing situation, provided that neither
PARTY is obligated to engage in such renegotiation.  Section 9.1.1 shall come into


 






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effect and full force on the EFFECTIVE DATE
for a term which shall continue until June 30, 2008.


 


3.                                       Article 20,
a new provision in the New Distribution Agreement, shall read as follows:


 


Article 20


EXCHANGE
RATE


 


20.1                        The
Exchange Rate for the initial transaction after April 1, 2005 between the
parties shall be US$ 1.3 to EURO 1.0 (“BASELINE EXCHANGE RATE”).


 


20.2                        If the
average monthly (calendar month) exchange rate published by the European
Central Bank (i) is greater or less than US$ 1.3 to EURO 1.0 by at least
10% (“ADJUSTED EXCHANGE RATE”), then the parties agree to share equally in
connection with the transfer price any amounts paid as a result of the ADJUSTED
EXCHANGE RATE.  For each subsequent
transaction between the parties, the BASELINE EXCHANGE RATE shall be based on
the previous ADJUSTED EXCHANGE RATE.


 


a.                                       For
example, if FIRST HORIZON IRELAND purchases from BAYER and the average monthly exchange
rate published by the European Central Bank is US$ 1.40 to EURO 1.0, then there
would be no alteration of the transfer price.


 


b.                                      For
example, if FIRST HORIZON IRELAND purchases from BAYER and the average monthly exchange
rate published by the European Central Bank is US$ 1.50 to EURO 1.0 then the
new exchange rate will be US$ 1.40 to EURO 1.0 resulting in a transfer price of
EURO 0.1439 [(EURO 0.155 ÷ 1.4) x 1.3]. 
For future transactions, the new BASELINE EXCHANGE RATE WILL BE US$ 1.50
to EURO 1.0.


 


Except as expressly modified herein, the New
Distribution Agreement shall remain in full force and effect.


 


In witness whereof, the parties have caused
this instrument to be executed by their duly authorized representatives.


 






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  BAYER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
     /s/ Joachim Neipp

  	
   

  
	
   

  	
  Title:

  	
  VP Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  8 December, 2005

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRST HORIZON CAYMAN

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
     /s/ Leslie B. Zacks

  	
   

  
	
   

  	
  Title

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  7 December, 2005

  
						



 






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  FIRST HORIZON USA

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patrick Fourteau

  	
   

  
	
   

  	
  Title    President, CEO

  



 






* Redacted text has been omitted and filed
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