**Exhibit10.33**

 

**AMENDMENTTO NEW DISTRIBUTION AGREEMENT**

 

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

 

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

 

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

 

**9.2.1****                    **Shouldthe NET SALES during any 12-month period within the term of the AGREEMENTsurpass US$ $##########, FIRST HORIZON CAYMAN shall pay a success fee of US$ #########(############) to BAYER.  Should the NETSALES 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 FIRSTHORIZON CAYMAN shall provide BAYER with a monthly report of NET SALES withinforty-five (45) days following each calendar month.  Such report shall also cover the NET SALES ofthe past 12 month period to verify whether the payment stipulated according tothis Article 9.2.1 is due.  Suchpayment shall be due within fifteen (15) days following the receipt of thefirst monthly report of NET SALES of the past twelve months above US$ ##########.  For purposes of this amendment, FIRST HORIZONCAYMAN’S milestone payment in the amount of US$######### shall be due andpayable to BAYER on or before January 15, 2006.  This Section 9.2.1 shall becomeeffective on January 1, 2006.

 

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

 

**18.1**                        This AGREEMENT, with theexception of Section 9.1.1, shall come into effect and full force on theEFFECTIVE DATE for a term of seven (7) years.  Thereafter, the AGREEMENT will beautomatically extended for consecutive two (2) year periods unlessterminated by FIRST HORIZON CAYMAN giving twelve (12) months prior writtennotice expiring at the end of the of the initial period or any subsequent two (2) yearperiod.  Prior to the commencement of anytwo (2) year period, the PARTIES may renegotiate the commercial terms of thisAGREEMENT according to the then prevailing situation, provided that neitherPARTY is obligated to engage in such renegotiation.  Section 9.1.1 shall come into

 

----

* Redacted text has been omitted and filedseparately pursuant to a request for confidential treatment

 

----

 

 

effect and full force on the EFFECTIVE DATEfor 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**

**EXCHANGERATE**

 

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

 

**20.2****                       **If theaverage monthly (calendar month) exchange rate published by the EuropeanCentral Bank (i) is greater or less than US$ 1.3 to EURO 1.0 by at least10% (“ADJUSTED EXCHANGE RATE”), then the parties agree to share equally inconnection with the transfer price any amounts paid as a result of the ADJUSTEDEXCHANGE RATE.  For each subsequenttransaction between the parties, the BASELINE EXCHANGE RATE shall be based onthe previous ADJUSTED EXCHANGE RATE.

 

a.                                       Forexample, if FIRST HORIZON IRELAND purchases from BAYER and the average monthly exchangerate published by the European Central Bank is US$ 1.40 to EURO 1.0, then therewould be no alteration of the transfer price.

 

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

 

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

 

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

 

----

* Redacted text has been omitted and filedseparately pursuant to a request for confidential treatment

 

2

----

 
|   | **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 |
|        |                          |  |  |  |  |

 

----

* Redacted text has been omitted and filedseparately pursuant to a request for confidential treatment

 

3

----

 
|   | **FIRST HORIZON USA**                       |
|--------|---------------------------------------------|
|   |                                        |
|   | By:                                         |   | /s/ Patrick Fourteau |   |
|   | Title    President, CEO |

 

----

* Redacted text has been omitted and filedseparately pursuant to a request for confidential treatment

 

4

----