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LICENSING AND SUPPLY
AGREEMENT  



     



Agreement made this 13th day of
September, 2006, between Laboratoires Carilène S.A.S a corporation existing under
the laws of France, and having its principal place of business at 7, rue du Chant des
Oiseaux, 78360 Montesson-France (hereinafter referred to as “Supplier”), and
Auriga Laboratories, Inc., existing under the laws of the State of Delaware, U.S.A, having
its principal place of business at 5555 Triangle Parkway, Suite 300 – Norcross,
Georgia 30092, U.S.A. (hereinafter referred to as “Buyer”). 



WITNESSETH : 



WHEREAS, The Supplier desires
to sell and the Buyer desires to buy the Product defined below and described in Attachment
A hereto; and 



WHEREAS, The Supplier
is willing to furnish all of Buyer’s requirements for the Product and Buyer is
willing to purchase all of its requirements for the Product from Supplier, subject to
Supplier’s ability to meet Buyer’s demand for the Product; and 



WHEREAS, The Buyer
shall be the exclusive distributor of the Product in the Territory defined below; except
with respect to urologists and gynecologists as more fully described herein. 



WHEREAS, Supplier is the
exclusive owner of an invention relating to the use in Xerostomia and the subject of a
patent filed in the U.S.A. under the number 10/538,835, published under the number
US-2006-0078620-A1 on April 13th, 2006, and all claims therein, that covers the
Product (hereinafter called the “Invention’). 



WHEREAS, the Supplier has
obtained for the Product all applicable Medical device Rx Approval by the FDA under
Section 510 k of the FD&C Act (as evidenced in FDA docket number K0518112). 



WHEREAS, The Supplier
will transfer to the Buyer the Information, as well as scientific and marketing data which
are essential to the manufacture and commercial exploitation of the Product. 



NOW THEREFORE, this Agreement
witnesses that for and in consideration of the respective covenants and agreements herein
contained, it is agreed by and between the parties as follows: 



     



ARTICLE 1
DEFINITIONS 



     



     	1.1.	
          Definitions. For the purpose of this Agreement or any amendment thereto, the
          following terms shall have the following meanings, respectively : 


          













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     	1.1.1.	
          “Product(s)” shall mean an oral artificial saliva that contains
          oxygenated triglycerides from corn oil that have lubricating and moisturizing
          properties, as covered by the Patent and all other Supplier intellectual
          property rights and as further described in Attachment A. Product shall include
          the Authorized Generic Version and all successor products and all line
          extensions, upgrades, new formulations and the like. The product is preserved,
          and supplied in a metal bottle with a spray pump containing 40 mL (1.35 fl.oz.)
          or in 20ml metal bottle . The spray pump delivers a metered dose of 0.100 mL per
          spray or approximately 400 sprays for the 40ml and 200 spray for the 20ml,
          corresponding to either two months treatment or one month treatment. Product
          shall also include sample packages as mutually agreed to between the parties
          from time to time. 


          



     	1.1.2.	
          “Territory” shall mean the United States of America and its
          possessions and territories 


          



     	1.1.3.	
          “Information” shall mean all trade secrets, data, information and
          know-how related to the Invention, Product and the Patent. 


          



     	1.1.4.	
          “Patent” means the U.S.A. Patent in process of registration as
          described above and further described in Attachment B, including all
          divisionals, reissuances, reexaminations, foreign counterparts and the like. 


          



     	1.1.5.	
          “Transfer Price” shall mean the price in U.S. dollars paid by Buyer to
          Supplier for the Product as described below in Article 5.4. 


          



1.1.6 “FCA” shall have the
meaning ascribed thereto in INCOTERMS 2000 of the International Chamber of Commerce,
meaning, among other things, that Supplier shall deliver the goods cleared for export, at
Supplier’s expense, and Buyer shall clear, at its expense, the goods for import into
the Territory. 



1.1.7 “Quality Assurance
Agreement”: Attached hereto as Exhibit A is Supplier’s Quality Assurance
Agreement with its industrial supplier. The Quality Assurance Agreement shall ensure all
applicable governing laws, rules and regulations including but not limited to those
relating to Good Manufacturing Practices (GMPs). At the time of first production, or as
reasonably requested by Buyer thereafter, the GMED (official organization in France upon
which the FDA calls) may audit and produce an official license for the purpose of
confirming compliance with the United States Food and Drug Adminstration’s laws,
rules and regulations, including but not limited to those relating to GMPs. 



1.1.8 “Manufacturing
Package” means all Information and instructions necessary to enable a third party to
manufacture the Product if permitted pursuant to this Agreement. 



1.1.9 “Net Sales” means all
amounts actually received by Buyer as a result of its sales of Products less all
deductions for discounts, product rebates, Medicaid rebates, forced or mandated
wholesales/distributor fees, rebates to other governmental agencies or purchasing
associations, returns, chargebacks and import fees.These rebates and discounts cannot
exceed 15% of gross sales. 



1.1.10 “Authorized Generic
Version” means the Product released under a generic label. 



     



ARTICLE 2
REQUIREMENTS AND
EXCLUSIVITY 



     



2.1. License. 



        2.1.1 Supplier
hereby grants to Buyer the exclusive (even as to Supplier) right, under all applicable
worldwide intellectual property rights, to sell, market, distribute, sublicense and
exploit the Product in the Territory under a trade name of its choice (including without
limitation using Supplier’s trade name). Buyer shall have the right to introduce an
Authorized Generic Version of the Product at a future date, in Buyer’s sole
discretion. Buyer is also hereby granted an exclusive right and license, under all
applicable worldwide proprietary rights, to make, have made, use, sell, have sold,
market, distribute, sublicense and manufacture the Product, but only if and when
expressly authorized under the terms and conditions of this Agreement.  
















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        2.1.2 Buyer
and Supplier hereby agree that Buyer shall negotiate in good faith with a party to be
designated by Supplier for the purpose of entering into a “co-promote” agreement
whereby such designee shall be permitted to sell, market and distribute the Product in
the Territory only under Buyer’s trade name (the “Urology Co-Promotion Partner”).
For purposes of this Agreement “CO-PROMOTE” shall mean an arrangement in the
Territory, in which (i) Supplier is the single registration holder for the Product; (ii)
Supplier is the single Party responsible for the manufacture of Product; (iii) Buyer is
the single Party establishing the price of Product; (iv) Buyer is the single Party
booking sales; (v) a single trademark being used in connection with the Product; (vi) the
Urology Co-Promotion Partner promotes, markets and sells the Product in the Territory to
urologists and gynecologists only ; (vii) Buyer promotes, markets and sells the
Product in the Territory outside of urologists and gynecologists ; and (viii) Buyer’s
name and logo appear on the Product.  




2.2 Sale of Requirements.
During the term of this Agreement, Supplier agrees to sell to Buyer all of Buyer’s
requirements of the Product in accordance with the terms of this Agreement. If Supplier is
unable to supply all of Buyer’s requirements, Supplier shall, as Buyer’s sole
remedy, use commercially reasonable efforts to provide Buyer, at prices at or lower than
those set forth in this Agreement, with the Product from other sources to avoid
out-of-stock situations. Notwithstanding the foregoing, if Supplier is unable to supply
Buyer’s requirements two (2) or more times during a ninety (90) day period, then
Buyer shall have the right to require qualification of a second manufacturer, of
Buyer’s choice, to manufacture the Product for Buyer by using the Manufacturing
Package. Such additional manufacturer shall be subject to the confidentiality restrictions
set forth herein. 



2.2.1 Purchase of
Requirements. During the term of this Agreement, Buyer agrees to buy from Supplier all
of Buyer’s requirements for the Product in accordance with the terms of this
Agreement. 



     2.3.    
          Exclusivity. During the term of this Agreement, Supplier agrees not to
          distribute or sell the Product directly or indirectly to any other party for the
          purpose of use or sale in the Territory in accordance with Article 2.1. If
          during the Term of the Agreement, Buyer at any time notifies Supplier that a
          party is distributing or selling Product in the Territory, Supplier agrees that
          it will take all action necessary to immediately halt all sales (direct and
          indirect) of Product to such party that is distributing or selling in the
          Territory providing that the source of the product is identified to be the
          Supplier. In the event any damages are recovered as a result of Supplier’s
          actions, after reimbursing Supplier its reasonable costs to take such action,
          all remaining proceeds shall belong to Buyer, subject to the royalty set forth
          in Article 5.3 If the source of the Product is other than Supplier, then Buyer
          shall have the right, by virtue of the exclusive license granted in Article 2.1,
          to take action against such third party, and all proceeds of any such action
          shall belong solely to Buyer, subject to the royalty set forth in Article 5.3. 



     2.4.    
          No Sales Outside the Territory. Buyer shall not, without the prior written
          approval of Supplier (to be granted or withheld in Supplier’s sole and
          absolute discretion), directly or indirectly sell Product outside the Territory,
          advertise, promote or solicit customers for Product outside the Territory,
          establish any office outside the Territory through which orders are solicited or
          establish any depot at which inventories of Product are stored outside the
          Territory. 















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2.5 Right of First Refusal. In
the event Supplier decides to grant an exclusive right to distribute and sell any further
Supplier products in the Territory, and such products are not included under the
definition of Products set forth in this Agreement, Supplier shall provide Buyer the first
opportunity to obtain such exclusive right for such products upon mutually agreed upon
terms and conditions. Upon receiving information regarding new Products, Buyers shall have
90 days to exercise right of first refusal. 



     



ARTICLE 3
REPRESENTATIONS 



     



     3.1.    
          Representations of Supplier. The Supplier represents that: 



     3.1.1.    
          Supplier is the exclusive owner of all rights, title and interest in and to
          the Invention, Patent, and Information, and has the right to grant to Buyer the
          rights and licenses set forth in this Agreement. The Invention and Products are
          completely safe for human use and does not have any direct or indirect adverse
          health effects. 



     3.1.2.    
          As of the date of this Agreement, other than the Patent, Supplier has not
          filed, or caused to be filed in the U.S., patent applications, or obtained in
          its name or caused to obtain in the name of others, any other patent based on or
          relating to the Invention, Information or devices or methods similar to the
          Invention. 



     3.1.3.    
          Supplier has, and will continue to, comply with all applicable laws, rules and
          regulations with respect to the development, manufacture, sale, use and
          distribution of the Product (“Laws”), including, at its sole cost and
          expense, obtaining and maintaining all applicable FDA approval to enable the
          Product to be sold in the Territory. 



     3.2.    
          Information. Supplier shall furnish to Buyer, or its nominees, any
          Information reasonably required (as determined by Supplier and Buyer) by Buyer
          to commercialise and exploit the use of the Invention and the Products permitted
          under this Agreement, including without limitation the clinical data and related
          materials that were conducted on the Invention and/or Products. 



     3.3.    
          Buyer represents that Buyer (i) will adhere to all applicable laws, rules and
          regulations, relating to the sale of Product in the Territory; and (ii) will
          store the Product in appropriate conditions and facilities (as instructed by
          Supplier). 



     



ARTICLE 4
GENERAL OBLIGATIONS 



     



     4.1.    
          Buyer’s Obligations. Marketing and distribution. In addition to
          any and all other obligations and liabilities of Buyer as provided in this
          Agreement, Buyer or Buyers successors shall use commercially reasonable efforts
          to promote and market the Product for sale according to the business plan
          covering the first 3 years communicated to Supplier. 



     4.2.1.    
          Supplier’s obligation. Lead time: Lead time for Products ordered
          hereunder shall be 12 weeks for the first order after reception of the final art
          work data signed by both supplier and buyer, and then 8 weeks after receipt of
          all other orders. Shipment time by ocean shall be 4/5 weeks; by air-freight
          shall be 1 week. Shipment time shall be added to lead time for purposes of
          scheduling delivery. 50% of total billing for the first order only, will be paid
          by money bank transfer at order time. 














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     4.2.2.    
          Supplier shall provide Buyer with a Certificate of Analysis for batches of
          Product by facsimile three (3) working days prior to shipment. Original copies
          of the Certificates of Analysis shall be sent regular mail. Additional
          supportive documentation per batch Is specified in the Quality Assurance
          Agreement. 



     4.2.3.    
          Supplier shall provide Buyer with a copy of the bill of lading by facsimile
          upon shipment. 



4.3 Manufacturing Rights. In
the event Supplier admits in writing its inability to pay its debts generally as they
become due, files an assignment or a petition in bankruptcy, as the case may be, or a
petition to take advantage of any insolvency statute, makes a general assignment for the
benefit of its creditors, consents to the appointment of a receiver of itself or of the
whole or any substantial part of its property, undertakes its liquidation, winding-up or
dissolution, or enters into an arrangement or composition with or for the benefit or
creditors generally occurring in circumstances in which it is unable to meet its
obligations as they fall due, then Buyer shall have a non-exclusive right and license to
use the Manufacturing Package and to select a third party to manufacture the Product for
continued distribution in the Territory. In the event Buyer exercises its rights under
this Section 4.3, all royalties payable hereunder shall remain unchanged. Supplier shall
place the Manufacturing Package in escrow pursuant to a mutually agreed upon escrow
agreement that enables release of the Manufacturing Package upon written notice of the
occurrence of any of the foregoing release conditions. When Supplier recovers it’s
total ability to run it’s business normally, the Buyer’s manufacturing rights
under this Section 4.3 shall terminate and the provisions, terms and conditions of this
Agreement shall be in full force and effect. 



     



ARTICLE 5
PRICE AND TERMS 



     



     5.1.    
          Payments : In consideration of the exclusive license granted in Article
          2.1, thirty (30) days prior to shipment of the first batch of Product ordered by
          Buyer hereunder, Buyer shall pay to Supplier a non refundable premium of USD
          $1.5 million in accordance with the following payment schedule: 



         (i).       US$250,000 upon the commercial launch of the Product in the U.S.; 



    (ii).      US$500,000
on or before the 90th day after commercial launch of the
                    Product in the U.S.; and  



    (iii).     US$750,000
upon the earlier of twelve months                     after the commercial launch of the
Product or at the time that Buyer achieves $5,000,000 of Net Sales. 




        Supplier
and Buyer agree that, in the sole discretion of Supplier, the payment provided by Buyer to
Supplier under Section 5.1(iii) of this Agreement may be paid in either U.S. dollars or
the common stock of Buyer with a value equal to the amount payable under Section 5.1(iii)
hereof as of the date of issuance. 



     5.2.    
          Minimum Batch size : The minimum batch size for stock bottles of the
          Product shall be 100,000 units with a maximum shelf life of three (3) years from
          date of manufacture deliverable in 2 shipments at 2 different dates within any
          12 month period. 



     5.3.    
          Royalties: Buyer will pay royalties equal to five percent (5%) on Net Sales.
          Royalties will be calculated for the first six months after initial distribution
          by Buyer and every six months thereafter. Royalty is to be paid 60 days
          following the determination period to Supplier. 












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     5.4.    
          Transfer Price: The official exchange rate applied on the 13/9/2006 will
          be applied all through the year 2007/2008 : 1€ = $ 1.27.  For the
          first twelve months of the term of this Agreement the Transfer Price shall be as
          set forth in Exhibit B. After the initial 24 months of exploitation of the
          product, the Transfer Price may be negotiated on an amicable basis following
          cost increase of raw materials, energy and labour; provided, however, that if
          agreement regarding the Transfer Price is not reached after good faith
          negotiations, then the Transfer Price from the most recent year shall be used
          for the current year. 



     5.5.    
          Price Decreases: Supplier shall use all commercially reasonable efforts to
          reduce the prices charged to Buyer hereunder for the Products. If such prices
          can be reduced as a result of market forces or cost reduction strategies
          identified by Supplier, then 50% of the amount of such price reduction shall be
          applied to the prices paid by Buyer hereunder. If prices can be reduced as a
          result of cost reduction strategies identified by Buyer, then 100% of the amount
          of such reduction shall be applied to the prices paid by Buyer hereunder. 



5.6 Transport and Product
Insurance : All risk of damage to or loss or delay of the Product shall pass to Buyer
upon Supplier’s delivery at the FCA pick-up point to a common carrier. Buyer shall
insure each shipment of the Product with a reputable insurer for the full invoice value of
such shipment. Such insurance shall provide for full coverage from the time the Product
are delivered from the FCA pick-up point until Buyer shall have paid Supplier in full for
such Product. 



     5.7.    
          Payment Terms : The Buyer shall be invoiced for purchases of Product with a
          payment term of 30 days from evidence of shipment. All invoices shall be paid by
          Buyer within thirty (30) days of receipt by bank transfer only. 



     5.8.    
          Forecasts : Buyer agrees to provide Supplier with a twelve (12) month
          non-binding forecast indicating Buyer’s estimated intended purchases of
          Product during each calendar quarter of such period. Such forecast shall be
          updated by Buyer on a rolling basis for a new twelve (12) month period, which
          updated forecast must be received by Supplier no later than thirty (30) days
          prior to the first day of each succeeding calendar quarter. Such rolling
          forecasts by Buyer are required to meet the lead times required by certain of
          Supplier’s suppliers as communicated to Buyer by Supplier. 



     5.9.    
          Minimum Purchase Requirements for USA. In order to maintain its exclusive
          distribution license in accordance with Article 2.1, Buyer shall purchase the
          following minimum amounts of the Product from Supplier during the term of this
          Agreement. 



     5.9.1.    
          During the first twelve (12) month period, Buyer will purchase at least
          50,000 units of Product to maintain exclusivity. 



     5.9.2.    
          During the second twelve (12) month period, Buyer will purchase at least
          75,000 units of Product to maintain exclusivity. 



     5.9.3.    
          During the third twelve (12) month period, Buyer will purchase at least
          100,000 units of Product to maintain exclusivity. 



     5.9.4.    
          During the fourth twelve (12) month period, and for each twelve (12) month
          period thereafter, Buyer will purchase at least 125,000 units of Product to
          maintain exclusivity. 














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     5.9.5.    
          Failure to achieve the above targets for two consecutive years, could result in
          the loss of exclusive rights to the Product in the Territory (whereupon Supplier
          shall give Buyer 90 days prior written notice of such loss of exclusive rights).
          Notwithstanding the foregoing, Buyer shall have the right to “buy out”
          the Minimum Purchase Requirement for any given year by paying to Supplier the
          amount of royalty that would have been paid to Supplier had Buyer met the
          applicable Minimum Purchase Requirement, based on Buyer’s sales price in
          effect at the time. 



     



ARTICLE 6
TRADEMARKS 



     



     6.1.    
          Use of Trademarks. Buyer can market Product in the Territory under its own
          trademarks and trade names; provided, however, Buyer shall include notices on
          each Product stating the US Patent pending number and Supplier’s ownership
          rights, as well as being identified as the manufacturer of the finished product
          or use Supplier’s trade name Aequasyal free of charge. Buyer is granted a
          non-exclusive right and license to use Supplier’s trademarks and trade
          names for the purpose of marketing and distributing the Products in the
          Territory. Supplier shall label the Product in accordance with Buyer’s
          instructions, as may be updated from time to time. 



In case Buyer chooses it’s own
trademark, Buyer, at its own expense, shall be responsible for the selection, registration
and maintenance of the brand name to be used with respect to the Product and shall own and
control such trademark. All goodwill arising as a result of such trademark shall inure
solely to the benefit of Buyer. 



ARTICLE 7
TERM AND TERMINATION 



     



     7.1.    
          Term. This Agreement shall take effect as of the date first above written,
          and unless earlier terminated as otherwise provided in this Agreement, shall
          continue in force until the expiration of the Patent so long as Buyer has
          purchased the minimum requirements set forth in Section 5.9. 



     7.2.    
          Termination. This Agreement may be terminated in accordance with the
          following provisions: 



     7.2.1.    
          Either party may terminate this Agreement by giving notice in writing to the
          other party should an event of Force Majeure continue to affect the other party
          hereto uninterrupted for more than six (6) months as provided in Section 8.5
          below; 



     7.2.2.    
          Either party may terminate this Agreement by giving notice in writing to the
          other party in the event the other party is in material breach of a material
          provision this Agreement and such breaching party shall have failed to correct
          such breach within thirty (30) days of receipt from the other party of written
          notice describing with specificity such breach (and if such breach is not
          reasonably corrected within such 30 days, such breaching party must have at
          least undertaken within such 30 day period reasonable steps to correct such
          breach after such 30 day period in order to prevent such termination). 



     7.3.    
          No compensation. In the event either party terminates this Agreement in
          accordance with the terms hereof, the parties hereby agree that neither party
          shall be entitled to any compensation or like payment from the other party or
          any affiliate of the other party as a result of such termination. 














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     7.4.    
          Upon termination or expiration of this Agreement in accordance with its terms,
          Buyer shall within 160 days thereafter immediately cease to sell and/or
          distribute the Product. Further, upon termination or expiration of this
          Agreement, subject to the foregoing sentence, each party shall return or destroy
          the other party’s Confidential Information (as defined below). 



     



ARTICLE 8
FORCE MAJEURE 



     



     8.1.    
          Definition. “Force Majeure” shall mean any event or condition not
          reasonably within the control of either party which prevents in whole or in
          material part the performance by one of the parties of its obligations hereunder
          or which renders the performance of such obligations so difficult or costly as
          to make such performance commercially unreasonable. Without limiting the
          foregoing, the following shall constitute events or conditions of Force Majeure;
          acts of State or governmental action, riots, war, strikes, prolonged extreme
          slowdowns, prolonged extreme shortage of energy supplies, epidemics, fire,
          flood, hurricane, typhoon, earthquakes, lightning and explosion; provided,
          however, a Force Majeure event shall not limit Buyer’s obligation to make
          payments to Supplier for Product. It is in particular expressly agreed that any
          refusal or failure of any governmental authority to grant any authorization,
          approval or license legally required for the fulfillment by Supplier of its
          obligations hereunder shall constitute an event of Force Majeure. 



     8.2.    
          Notice. Upon giving notice to the other party, a party affected by an event
          of Force Majeure shall be released without any liability on its part from the
          performance of its obligations under this Agreement, except for the obligation
          to pay any amounts due and owing hereunder, but only to the extent and only for
          the period that its performance of such obligation is prevented by the event of
          Force Majeure. Such notice shall include a description of the nature of the
          event of Force Majeure, and its cause and possible consequences. The party
          claiming Force Majeure shall promptly notify the other party of its termination
          of such event. 



     8.3.    
          Confirmation. The party invoking Force Majeure shall provide to the other
          party confirmation of the existence of the circumstances constituting Force
          Majeure. Such evidence may consist of statement or certificate of an appropriate
          governmental department or agency where available, or a statement describing in
          detail the facts claimed to constitute Force Majeure. 



     8.4.    
          Suspension of Performance. During the period that the performance by one of
          the parties of its obligations under this Agreement has been suspended by reason
          of an event of Force Majeure, the other party may likewise suspend the
          performance or all or part of its obligations hereunder to the extent that such
          suspension is commercially reasonable. 



     8.5.    
          Termination. Should the period of Force Majeure continue for more than sixty
          (60) consecutive days, the party not suffering the Force Majeure may terminate
          this Agreement without liability to the other party, except for payments due to
          such date, upon giving written notice to the other party. 













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ARTICLE 9
PRODUCT LIABILITY 



     



     9.1.    
          Supplier Product Liability Insurance. Supplier is the supplier of the
          finished consumer Product, and bears all products liability risk associated
          therewith. Supplier shall maintain and shall require all of its
          subcontractors and manufacturers to maintain Commercial General Liability
          insurance with a limit of not less than $1 million per each occurrence and $2
          million aggregate. Such insurance shall be maintained from the inception of this
          Agreement until 9 months following termination of this Agreement. 



Supplier shall provide certified
copies of each policy providing the such insurance upon Buyer’s request at any time
(and such certificates shall (1) clearly evidence all such coverage and specific evidence
of a separate commercial general liability endorsement adding such additional insured, and
(2) provide that such insurance shall not be modified, terminated or cancelled except on
30 days’ prior written notice to Buyer. If Supplier for any reason, fails to maintain
insurance coverage which is required pursuant to this Agreement, the same shall be deemed
a material breach of contract and Buyer may, at its sole option, terminate this Agreement
and obtain damages from Supplier resulting from said breach. (By requiring insurance
herein, Buyer does not represent that coverage and limits will necessarily be adequate to
protect Buyer and such coverage and limits shall not be deemed as a limitation on
liability under the indemnities hereunder.) 



     9.2.    
          Indemnity. Supplier shall indemnify, reimburse, and hold harmless Buyer,
          its affiliates, and their respective officers, directors, employees, agents,
          successors and assigns from and against any and all costs, losses, liabilities,
          damages, pending, threatened or concluded lawsuits, deficiencies, claims and
          expenses (including reasonable fees and disbursements of attorneys)
          (collectively, the “Damages”) to the extent such Damages are
          incurred in connection with or arise out of (i) any breach of any covenant or
          agreement of Supplier herein; (ii) the breach of any representation or warranty
          made by Supplier in this Agreement (without regard to materiality qualifiers
          contained in such representations or warranties); (iii) the negligence or
          willful misconduct of Supplier, its employees, agents or contractors; and
          (iv) the use or distribution of the Products, including without limitation
          any actual or alleged infringement of any third party intellectual property
          rights by the Products or Information, or the use, sale or distribution thereof. 



9.3 Buyer Product Liability
Insurance. Buyer shall maintain Commercial General Liability insurance with a limit of
not less than $1 million per each occurrence and $2 million aggregate. Such insurance
shall name Supplier and each of its members, managers, directors, officers and employees
as an “additional insured.” Such insurance shall be maintained from the
inception of this Agreement until 9 months following termination of this Agreement. 



Buyer shall provide certified copies
of each policy providing the such insurance upon Supplier’s request at any time (and
such certificates shall (1) clearly evidence all such coverage and specific evidence of a
separate commercial general liability endorsement adding such additional insured, and (2)
provide that such insurance shall not be modified, terminated or canceled except on 30
days’ prior written notice to Supplier. If Buyer for any reason, fails to maintain
insurance coverage which is required pursuant to this Agreement, the same shall be deemed
a material breach of contract and Supplier may, at its sole option, terminate this
Agreement and obtain damages from Buyer resulting from said breach. (By requiring
insurance herein, Supplier does not represent that coverage and limits will necessarily be
adequate to protect Supplier and such coverage and limits shall not be deemed as a
limitation on liability under the indemnities hereunder.) 












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ARTICLE 10 
GOVERNING LAW, ETC. 



     



     10.1.    
          Applicable Law. This Agreement shall be governed by, and shall be construed
          and enforced in accordance with, the internal laws of New York, USA, without
          regard to conflicts of laws provisions thereof and without regard to the United
          Nations Convention on Contracts for the International Sale of Goods. Any legal
          action or proceeding arising under this Agreement will be brought exclusively in
          the federal or state courts located in New York City, New York, and the parties
          hereby consent to the personal jurisdiction and venue therein. 



     



ARTICLE 11
MISCELLANEOUS 



     



11.1 Assignment: Neither party
shall have the right to assign or otherwise transfer its rights and obligations under this
Agreement except with the prior written consent of the other party and consent shall not
be unreasonably withheld; provided, however, that either party shall be entitled to assign
any or all of its rights and obligations hereunder to any of its affiliates, or in the
event of a merger or acquisition of substantially all of a party’s stock, assets or
business. 



11.2 Limitation of
Liability. Except in the event of a breach of any of the provisions of Article 2,
Article 3, Article 11.3 of this Agreement, or liability under Article 9, neither party
shall be liable to the other party or any third party for special, indirect, incidental,
consequential or punitive damages of any kind or nature whatsoever, whether arising under
contract, warranty, or tort (including negligence or strict liability) or any other theory
of liability even if the possibility of such damages were disclosed to the other party or
could have been reasonably foreseen. The limitations of liability reflect the allocation
of risk between the parties. The limitations specified in this Section 11.2 will survive
and apply even if any limited remedy specified in this Agreement is found to have failed
of its essential purpose. 



     11.3.    
          Confidentiality. Both parties acknowledge that either may receive (the
          “receiving party”) Confidential Information (as defined hereinafter)
          from the other (the “disclosing party”) during the term of this
          Agreement, including information designated as confidential at the time of
          disclosure, or summarized in writing as Confidential Information within a
          reasonable time after disclosure. The receiving party shall only use the other
          party’s Confidential Information to perform its obligations under this
          Agreement and disclose the other party’s Confidential Information only to
          persons within the receiving party having a need to know the information for the
          purpose of this Agreement. The receiving party shall treat the Confidential
          Information as it does its own valuable and sensitive information of a similar
          nature, and, in any event, with not less than a reasonable degree of care.
          “Confidential Information” means any business or technical information
          of a party, including but not limited to any information relating to product
          plans, designs, costs, product prices and names, finances, marketing plans,
          business opportunities, personnel, research, development or know-how that is
          designated by the disclosing party as “confidential” or
          “proprietary” and, if orally disclosed, reduced to writing by the
          disclosing party within thirty (30) days of such disclosure. 



     11.4.    
          Ownership. Supplier is and shall remain the owner of all Patents and
          Information, including any enhancements, modifications or enhancements to such
          Patents and/or Information which are made during the term of this Agreement by
          either party. 













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     11.5.    
          Entire Agreement/Modifications. Except with respect to the Quality
          Assurance Agreement, this Agreement constitutes the complete and exclusive
          statement of the agreement between the parties, and supersedes all proposals,
          and all other prior or contemporaneous communications between the parties
          relating to the subject matter hereof, whether written or oral. No purchase
          order shall add additional terms to or vary the terms of this Agreement.
          Modifications to this Agreement shall be in writing, expressly refer to this
          Agreement, and be signed by authorized representatives of Buyer and Supplier. 



     11.6.    
          Severability. If any provision of this Agreement is held by a court of
          competent jurisdiction to be contrary to law, the remaining provisions of the
          Agreement shall remain in full force and effect. 



     11.7.    
          Independent Contractors. The parties are independent contractors to each
          other. No agency, employment, or partnership is hereby created by and between
          the parties. Neither party shall have authority to act for the other in any
          manner to create obligations or debts that would be binding upon the other.
          Neither party shall be responsible for any obligations or expenses of the other
          except as expressly authorized to be incurred in the performance of this
          Agreement. 



IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed on the date first above written. 



Date 



		
	Laboratoires Carilène, SA	Auriga Laboratories, Inc..
	Signature    /s/ Stéphane Desjonquères	Signature    /s/ Philip S. Pesin
	Name           Stéphane Desjonquères	Name           Philip S. Pesin
	Position      President	Position      Chief Executive Officer