exhibit1052.htm


    Exhibit 10.52

    The confidential portions
of this exhibit have been filed separately with the Securities and Exchange
Commission pursuant to a confidential treatment request in accordance with Rule
24b-2 of the Securities and Exchange Act of 1934, as amended.  REDACTED
PORTIONS OF THIS EXHIBIT ARE MARKED BY AN [##].


    Amendment
and Addendum to

     

    Consultant
Services and Confidentiality Agreement

     

    This
Amendment and Addendum to Consultant Services and Confidentiality Agreement
(the “Amendment”)
is entered into as of December 1, 2008 (the “Amendment
Date”) by and between, on the one hand, OMP,
Inc., a Delaware corporation (“OMP”);
and, on the other hand, José
Ramirez, an individual, and JR Chem
LLC, a Florida limited liability company (collectively, “JR”).  All
capitalized terms used but not otherwise defined herein shall have the meanings
assigned under the Consultant Services and Confidentiality Agreement between OMP
and JR dated as of July 18, 2005 (the “Original
Agreement” and, collectively with, and as amended by, this Amendment, the
“Agreement”).

     

    Whereas,
subject to the terms and conditions of the OriginalAgreement, and
effective as of July 18, 2005, JR granted to OMP, during the License Term,
an exclusive, royalty-bearing license, including the right to sublicense through
multiple tiers of sublicense, under the Licensed Technology, to develop, make,
have made, use, sell, have sold, offer for sale and import BiMineral Complex and
Products;

     

    Whereas,
OMP and JR wish to amend the terms and conditions applicable to the
license granted by JR to OMP with respect to the BiMineral Complex (defined
below) but only insofar as it applies to sales to Rohto (as defined below);
and

     

    Whereas,
OMP currently wishes to sub-license products set forth on Exhibit A
that contain the BiMineral Complex to Rohto Pharmaceutical Co. Ltd., a Japanese
corporation with principal offices located at 1-8-1, Tatsumi-nishi, Ikuno-ku,
Osaka 544-8666, Japan (“Rohto”).

     

    Now,
Therefore, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:

     

    1. Additional
Defined Terms.

     

    (a)           “BiMineral Complex” shall mean
reacted active, copper zinc malonate.

     

    (b)           “Effective Date” shall mean
July 18, 2005.

     

    (c)           “Field” shall mean Skin
Healthcare, dermatology, aesthetic procedures, plastic surgery, and each other
use described in Exhibit B to the Original Agreement.

     

    (d)           “Licensed Patents” shall mean:
(a) the patents and patent applications listed in Schedule 1
to this Amendment; (b) any and all divisionals, continuations and
continuations-in-part of any of the foregoing patents and patent applications;
(c) any and all foreign patents and patent applications associated with any
of the foregoing patents and patent applications; (d) any and all patents
issued or issuing from any of the foregoing patent applications; and
(e) reissues, reexaminations, restorations (including supplemental
protection certificates) and extensions of any of the foregoing.

     

    


    
      
        
          
             

          

           


        

        
          1

          
            

          

        

        
           


        

      

    

    


    (e)           “Licensed Technology” shall
mean the Licensed Patents and all related know-how disclosed, or that may in the
future be disclosed, to OMP in connection with the Services or otherwise
pursuant to the Agreement.

     

    (f)           “License Term” shall mean the
period beginning on the Effective Date and, unless the license granted under
this Amendment is earlier terminated in accordance with Section 2(b) of
this Amendment, continuing until the expiration of all royalty payment
obligations hereunder.

     

    (g)           “Product” shall mean any
product in any form or formulation that contains or incorporates BiMineral
Complex.

     

    (h)           “Sales Revenues” shall mean
the amounts actually received by OMP from the sale of BiMineral Complex and/or
Product, as applicable, to Rohto.

     

    (i)           “Unit” shall mean a single
unit of a particular Product that is intended for sale to the end user or
consumer.

     

    (j)           “Valid Claim” shall mean a
claim contained in an issued and unexpired patent which has not been held
unenforceable, unpatentable or invalid by a decision of a court or other
governmental agency of competent jurisdiction, unappealable or unappealed within
the time allowed for appeal, and which has not been admitted to be invalid or
unenforceable through abandonment, reissue, disclaimer or
otherwise.

     

    2. Payments.


     

    (a) Royalty.  In full
consideration of the license granted under this Amendment, OMP shall pay to JR
royalties based on Rohto annual Sales Revenues paid to OMP at the rates set
forth below:

     

    (i) [ 1* ] of
the first [ 2* ] Units of Product in any calendar year;

     

    (ii) [ 3*
] of  the [ 4* ] Unit (inclusive) of Product in any calendar
year ;

     

    (iii) [ 5*
]  of the [ 6* ] Unit (inclusive) of Product in any calendar year;
and

     

    (iv) [ 7*
]  of the [ 8* ]  of Product in any calendar year.

     

     (b)           Royalty
Term.  Royalties under Section 2(a) of this Amendment
shall be payable based on Rohto annual Sales Revenues until the expiration of
the last-to-expire Valid Claim of the Licensed Patents that claims the
manufacture, use or sale of a Product (or the BiMineral Complex contained in
such Product, as applicable) in Japan. For purposes of clarification, royalties
shall only be payable if there is at least one Valid Claim of the Licensed
Patents claiming the manufacture, use or sale of the applicable Product (or the
BiMineral Complex contained in such Product, as applicable) in
Japan.

     

    * Subject
to confidential treatment request

    
      
        
          
            


                                                                             
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          2

          
            

          

        

        
           


        

      

    

    


    (c)           Payment;
Reports.  Royalties shall be calculated and reported for each
calendar quarter and shall be paid within [ 9* ] after the end of each calendar
quarter.  Each payment shall be accompanied by a report of Sales
Revenues in sufficient detail to permit confirmation of the accuracy of the
royalty payment made, including the number of Units of Product to which such
Sales Revenues are attributable, the royalties payable, and the exchange rates
used.  

     

    (d)           Exchange Rate; Manner and Place of
Payment.  All payments hereunder shall be payable in U.S.
dollars.  When conversion of payments from any foreign currency is
required, such conversion shall be at the exchange rate used by OMP throughout
its accounting system during the calendar quarter for which a payment is
due.  All payments owed under this Amendment shall be made by wire
transfer in immediately available funds to a bank and account designated in
writing by JR, unless otherwise specified in writing by JR.

     

    (e)           Income Tax
Withholding.  JR will pay any and all taxes levied on account
of any payments made to it under this Amendment.  If any taxes are
required to be withheld by OMP, OMP will (i) deduct such taxes from the
payment made to JR, (ii) timely pay the taxes to the proper taxing
authority, and (iii) send proof of payment to JR and certify its receipt by
the taxing authority as promptly as practicable following such
payment.

     

    (f)           Audits.  For so long
as royalty payments are due hereunder and for a period of three (3) years
thereafter, OMP shall keep records pertaining to Sales Revenues in sufficient
detail to permit JR to confirm the accuracy of the royalty payments due
hereunder.  JR shall have the right, exercisable no more than once
annually, to cause an independent, certified public accountant reasonably
acceptable to OMP to audit such records to confirm Sales Revenues and royalties
for a period covering not more than the preceding three (3)
years.  Such audits may be exercised during normal business hours upon
reasonable prior written notice to OMP.  Prompt adjustments shall be
made by the parties to reflect the results of such audit.  JR shall
bear the full cost of such audit unless such audit discloses an underpayment by
OMP of more than 10% of the royalties due under this Amendment, in which case,
OMP shall bear the full cost of such audit and shall promptly remit to JR the
amount of any underpayment.

     

    (g)           Sales Revenues from Other
Customers                                                                                     JR
understands and agrees that the royalty payments in this Agreement are solely
derived from OMP’s royalty payments received from Rohto.  If OMP
negotiates a sub-license agreement with another customer other than Rohto, the
terms of the Original Agreement shall apply unless JR and OMP negotiate in good
faith another amendment to satisfy that demand.

     

    3. Termination
of License. For the avoidance of doubt, the License Term shall be
independent, and shall survive expiration or termination, of the Original
Agreement.  Rights to terminate shall be as set forth in the Original
Agreement.

     

    4. Miscellaneous.  Except as specifically
amended by this Amendment, the terms and conditions of the Original Agreement
shall remain in full force and effect.  This Amendment may be executed
in counterparts, each of which shall be deemed an original document, and all of
which, together with this writing, shall be deemed one instrument.

     

    * Subject
to confidential treatment request

    
      
        
          
            


                                                                              
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    5. In Witness
Whereof, the parties hereto have executed this Amendment in duplicate
originals by their duly authorized officers or representatives.

     

    
      	
              OMP,
      Inc.

            	
              JR
      Chem LLC

            


    

     

    


     

    By:                                                                By:                                                                

     

    Name:                                                                           Name:

     

    Title:                                                                           Title:

     

    


     

    José
Ramirez

     

    


     

    


     

    


    
      
        
          
            


                                                                         
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    EXHIBIT
A

    BiMineral
Complex

    


    The
BiMineral Complex to be supplied by OMP to Rohto under this Agreement is the
reacted active, copper zinc malonate.  The BiMineral Complex is
prepared in two concentrates, one prepared for a cream-based formulation and one
prepared for a gel-based formulation.

    


    Cream-based concentrate
(Complex JR
23-14):

    Per the
current formulation used by JR, the Eye Cream uses approximately 0.375g per 15g
unit of Product.  The Eye Cream liquid 40X reacted copper zinc
malonate will be supplied in sanitary polyolefin drums.  Appropriate
MSDS and chemical analysis for Cu, Zn, pH and microbial quality will be supplied
with each lot of BiMineral Complex delivered to Rohto.

    


    The
Purchase Orders placed by Rohto shall be in multiples of 25kg (each 25kg is
sufficient quantity for producing approximately 66000 Eye Cream units per the
OMP formulation).  The price for the 40X concentrate custom made for
the Eye Cream is [ 10* ]/kg.

    


    Gel-based concentrate
(Complex JR
23-15):

    Per the
current formulation used by JR, the Eye Gel uses approximately 0.35g per 15g
unit of Product.  The gel base liquid is a 40X concentrate (due to the
manufacturing difference and pH adjustments required in the gel).  As
above, appropriate chemical analysis and MSDS will be provided.

    


    The
Purchase Orders placed with OMP directly by Rohto shall be in multiples of 25kg
(each 25kg is sufficient quantity for producing approximately 100,000 Eye Gel
units per the OMP formulation).  The price for the 40X concentrate
custom made for the Eye Gel is [ 11* ]  /kg.

    


     

    


    * Subject
to confidential treatment request

    


    
      
        
          
            


                                                                
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    Schedule
1

     

    Licensed
Patents

     

    
      	
              Reference:
      1169-36 CIP (Copper Zinc Malonate)

            
	
              Title:
      Chemical Compositions and Methods of Making Them

            
	
              Country

            	
              Application
      No.

            	
              Patent
      No.

            	
              Filing
      Date

            	
              Status

            
	
              JAPAN

            	
              [
      12* ]

            	 
      	
              [
      13* ] 

            	 
      
	 
      	
              [
      14* ] 

            	 
      	
              [
      15* ] 

            	 
      
	 
      	
              [
      16* ] 

            	 
      	
              [
      17* ] 

            	
              Laid
      Open No.

              P2007-204479A
      on 8/16/07

              Awaiting
      Office Action

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

    


     

    
      	
              Reference:
      1169-37 PCT

            
	
              Title:
      Anti-aging Treatment Method using Copper Zinc
  Composition

            
	
              Country

            	
              Application
      No.

            	
              Patent
      No.

            	
              Filing
      Date

            	
              Status

            
	
              Need
      to specify Japan

            	
              [
      18* ] 

              [
      20* ] 

            	 
      	
              [
      19* ] 

              [
      21* ] 

            	
              Response
      to OA Due 12/16/08

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

    


     

    
      	
              Reference:

            
	
              Title:

            
	
              Country

            	
              Application
      No.

            	
              Patent
      No.

            	
              Filing
      Date

            	
              Status

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

    


    * Subject
to confidential treatment request

    


    6