Amendment to License, Development and Supply Agreement


    Exhibit
      4.12

    


    Canadian
      License Amendment

    


    AMENDMENT
      TO LICENSE, DEVELOPMENT AND SUPPLY AGREEMENT

    


    THIS
      AMENDMENT AGREEMENT effective
      as of December 9, 2005 is made by and between PREMD
      INC. (previously
      known as IMI
      International Medical Innovations Inc.),
      a corporation incorporated under the laws of Canada, and having its principal
      place of business at Suite 615, 4211 Yonge Street, Toronto, Ontario, M2P 2A9,
      Canada (hereinafter referred to as “PreMD”)
      and McNEIL PDI Inc., a corporation incorporated under the laws of Canada, with
      and having its principal place of business at 768 Hebert Street, Desbiens,
      Quebec, Canada (acting through its McNEIL Consumer Healthcare division)
      (hereinafter referred to as “McNEIL”).
      McNEIL
      and PreMD may also be referred to as“Parties.”
      

    


    Whereas:

    A. The
      Parties are parties to a License, Development And Supply Agreement dated as
      of
      May 9, 2002, as amended by agreement dated December 20, 2002 (the “Agreement”);
      

    B.
       The
      Parties wish to waive certain rights and obligations they may have pursuant
      to
      certain provisions contained in the Agreement and to amend the provisions of
      the
      Agreement, in each case as specifically contemplated herein; 

    C. The
      Parties are parties to a License, Development and Supply Agreement dated as
      of
      May 28, 2004 (the “International
      Agreement”);
      and

    D. Capitalized
      terms used herein which are not otherwise defined shall have their respective
      meanings ascribed thereto in the Agreement. 

    


    NOW,
      THEREFORE, in consideration of the mutual covenants and obligations contained
      herein and for other good and valuable consideration, the receipt and
      sufficiency of which is hereby acknowledged, the Parties agree as
      follows:

    Sales
      Minimums

    Professional
      Product

    
      	 	
              1.

            	
              PreMD
                hereby waives any rights which it may have pursuant to section 17.4.1
                of
                the Agreement as a result of McNeil’s not having the amount of Net Sales
                of Licensed Products as contemplated thereunder provided
                that:

            


    

    
      	 	
              a.

            	
              The
                provisions of section 17.4.1(i) shall be
                deleted;

            


    

    
      	 	
              b.

            	
              The
                provisions of section 17.4.1(ii) shall be deemed to be amended by
                deleting
                the phrase “in any subsequent calendar year commencing after the first
                anniversary of the Effective Date” and replacing it with “in any calendar
                year commencing on and after 2005” and adding the following phrase at the
                end of section 17.4.1(ii): “subject to the provisions of section
                17.4.5”;

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Consumer
      Product 

    
      	 	
              2.

            	
              PreMD
                hereby waives any rights which it may have pursuant to section 17.4.2
                of
                the Agreement as a result of McNeil’s not having the amount of Net Sales
                of Licensed Products as contemplated thereunder provided
                that:

            


    

    
      	 	
              a.

            	
              The
                provisions of section 17.4.2(i) shall be deleted and replaced with
                the
                following: 

            


    

    
      	 	
              “i)

            	
                  by
                the
                end of the calendar year in which a Licensed Product is cleared for
                sale
                in Canada as a Consumer Product and when PreMD has made such product
                available for sale to McNeil that meet the Consumer Product Specifications
                agreed to by the Parties as defined in paragraph 2 c. hereto and
                PreMD has
                given McNeil notice in writing that all of the aforesaid conditions
                have
                been satisfied (the “Availability
                Date”),
                MCNEIL has not had Net Sales of such Consumer Products in an amount
                equal
                to at least the amount which results when *****; provided however,
                that
                the minimum Net Sales obligation set forth in this Section 17.4.2
                (i)
                shall not apply *****”

            


    

    
      	 	
              b.

            	
              The
                provisions of section 17.4.2(ii) shall be deemed to be amended
                by:

            


    

    
      	 	
              i.

            	
              Deleting
                “first anniversary of the Effective date” and replacing it with
                “Availability Date”); and

            


    

    
      	 	
              ii.

            	
              adding
                the following phrase at the end thereof: “subject to the provisions of
                section 17.4.5”;

            


    

    c. The
      Parties acknowledge that as of the effective date of this Amendment, the Parties
      have not established and agreed upon specifications for the Consumer Product
      for
      sale in the Consumer and Nutritional Fields. The Parties agree to use reasonable
      efforts to mutually agree upon such specifications for the Consumer Product
      in
      writing. After such specifications have been mutually agreed upon by the
      parties, such specifications will be attached hereto as Appendix A and made
      a
      part hereof (hereinafter referred to as the “Consumer Product Specifications”).


    


    Nutraceutical
      Field

    
      	 	
              3.

            	
              PreMD
                hereby waives any rights which it may have pursuant to section 17.4.3
                of
                the Agreement as a result of McNeil’s not having the amount of Net Sales
                of Licensed Products as contemplated thereunder provided
                that:

            


    

    
      	 	
              a.

            	
              The
                provisions of section 17.4.3(i) shall be deleted and replaced with
                the
                following: 

            


    

    
      	 	
              “i)
                

            	
                  by
                the
                end of the calendar year in which a Licensed Product is cleared for
                sale
                in Canada as a Consumer Product and when PreMD has made such product
                available for sale to McNeil that meet the Consumer Product Specifications
                agreed to by the Parties and PreMD has given McNeil notice in writing
                that
                all of the aforesaid conditions have been satisfied (the “Availability
                Date”),
                MCNEIL has not had Net Sales of Licensed Products in the Nutraceutical
                Field in an amount equal to at least the amount which results *****
                provided, however that the minimum Net Sales obligation set forth
                in this
                Section 17.4.3 (i) shall not apply
                *****

            


    

    
    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              b.

            	
              The
                provisions of section 17.4.3(ii) shall be deemed to be amended
                by:

            


    

    
      	 	
              i.

            	
              Deleting
                “first anniversary of the Effective Date” and replacing it with
                “Availability Date”); and

            


    

    
      	 	
              ii.

            	
              adding
                the following phrase at the end thereof: “subject to the provisions of
                section 17.4.5”;

            


    

    


    Laboratory
      Field

    
      	 	
              4.

            	
              PreMD
                hereby waives any rights which it may have pursuant to section 17.4.4
                of
                the Agreement as a result of McNeil’s not having the amount of Net Sales
                of Licensed Products as contemplated thereunder provided
                that:

            


    

    
      	 	
              a.

            	
              The
                provisions of section 17.4.4(i) shall be deleted and replaced with
                the
                following:

            


    

    “i)
       in
      any year (and in succeeding years) after the earlier of:

    
      	 	
              1.

            	
              the
                first commercial sale of the Tape Test (as defined in the International
                Agreement) in the Laboratory Field ,
                and

            


    

    
      	 	
              2.

            	
              the
                date the Tape Test is cleared for sale in Canada and when product
                is
                available for sale to McNeil that meets the specifications set out
                on
                Appendix I to the International Agreement in respect of such Tape
                Test

            


    

    (the
      earlier of such times being herein referred to as the “Commencement
      Date”)
      McNeil has not had Net Sales of at least ***** related to any Licensed Product
      in the Laboratory Field in the Territory, including at least ***** in Net Sales
      in Canada relating to the Laboratory Field (or, in the case of the first partial
      calendar year after the Commencement Date, at least the amount which results
      when both such foregoing dollar amounts ***** after the Commencement Date);
      provided however, that such minimum Net Sales obligation shall not apply
      *****.

    
      	 	
              5.

            	
              The
                Agreement shall be amended by adding the following as a new section
                17.4.5
                thereto:

            


    

    “Notwithstanding
      the foregoing provisions of section 17.4. if MCNEIL’s minimum Net Sales in a
      Field do not exceed the minimums outlined above, MCNEIL has the right *****
      in
      respect of each Field unless otherwise extended by the mutual consent of the
      parties, to make a payment to PreMD equivalent to ***** to maintain its rights
      hereunder in respect ***** shall only be exercisable within the *****. Such
      conversion shall become effective at the end of such thirty (30) day period,
      unless during such thirty (30) day period *****.

    


    
      	 	
              6.

            	
              The
                parties acknowledge and agree that nothing contained herein shall
                affect
                the entitlement of PreMD to receive the amount by which the Minimum
                Administration Charge exceeds the Administration Charge for such
                year.

            


    

    


    *****

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


      
      


    
    

     

     

     

    
      	 	7.	
              The
                provisions of section 8.5 of the Agreement (other than the first
                sentence
                thereof) shall not apply in respect of the Product in circumstances
                where
                the Product is *****, the specifications of which are identified
                in
                Appendix “A” hereto. *****
                For example, if the initial *****, and development work results in
                a
                *****. 

            


      	 	 	 


      	 	
              8.

            	
              Notwithstanding
                the provisions of section 7 of this amending agreement, in the event
                that
                the specifications for the ***** (a) change from those identified
                on
                Appendix A ***** solely by PreMD, its affiliates and/or its
                subcontractors, then PreMD may deem the provisions of section 8.5
                of the
                Agreement to be ***** the purposes of such Products. For example,
                if
                subsequent development efforts are required that *****, then the
                going
                forward *****

            


    

    
      	 	
              a)

            	
              *****;

            


    

    
      	 	
              b)

            	
              *****;
                and

            


    

    
      	 	
              c)

            	
              *****.

            


    

    


    

      	 	
              9.

            	
              

                  PreMD
                    agrees to use commercially reasonable efforts, which for purposes
                    of
                    clarity may, at a minimum, include the need to expend funds or
                    make
                    payments (other than PreMD’s attorneys fees and any other PreMD’s
                    out-of-pocket expenses in connection with the negotiations thereof)
                    of
                    ***** to renegotiate the development agreement with ***** (such
                    agreement,
                    as amended from time to time, being herein referred to as the
                    ***** to
                    further define the rights of PreMD in Collaboration IP (as defined
                    in the
                    ***** in the event that intellectual property is created during
                    development work in order to provide that PreMD will be granted
                    a
                    worldwide, irrevocable, royalty-free, non-exclusive license,
                    with the
                    right to grant a sublicense, to use and sell Design Elements
                    (as defined
                    in the *****. It is acknowledged that there is a similar obligation
                    to
                    make the ***** and certain other payments to ***** pursuant to
                    an
                    amendment to the International Agreement dated the date hereof.
                    For
                    greater certainty, ***** contemplated in such amendment to the
                    International Agreement, without
                    duplication.


              

            


    

    
      	 	 	 


      	 	
              9.1

            	
              In
                the event that the amount of payment required to obtain the rights
                set
                forth in this Paragraph exceeds the amount of the ***** (other than
                attorneys fees and any other out-of-pocket expenses in connection
                with the
                negotiations thereof) *****.

            


    

    
      	 	
              9.2

            	
              In
                the event that the amount of payment required to obtain the rights
                set
                forth in this Paragraph exceeds a total of ***** shall be equally
                responsible for any additional payment ***** in an amount of *****
                (other
                than attorneys fees and any other out-of-pocket expenses in connection
                with the negotiations thereof) in excess of the sum of
                *****.

            


    

    
      	 	
              9.3

            	
              In
                the event that the amount of payment required to obtain the rights
                set
                forth in this Paragraph exceeds a total of ***** shall discuss their
                respective payment responsibilities for the amount, if any, that
                may be
                due to ***** (but, for greater certainty, no Party shall be required
                to
                make any payment under Section 9.3 unless such Party specifically
                agrees
                to do so). 

            


    

    
    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              9.4

            	
              Each
                party shall be responsible for the payment of their own, respective,
                attorneys fees and out of pocket expenses that it may incur in connection
                with the negotiations as set forth in this Section 9.

            


    

    


    
      	
              10

            	
              To
                the extent commercially practicable, PreMD shall offer to include
                a
                designated representative of McNeil (the “McNeil
                Designate”)
                in all meetings with ***** and persons from whom ***** licenses any
                patents or rights to patent applications to the extent that such
                meetings
                relate to Collaboration IP ***** in all cases to the extent that
                McNeil
                shall wish to participate in such meetings. PreMD shall provide the
                McNeil
                Designate with such advance notice of such meetings as PreMD shall
                have
                received and PreMD shall use commercially reasonable efforts to schedule
                such meetings at least 48 hours after notice of such meeting has
                been
                provided to the McNeil Designate. McNeil acknowledges that this advance
                notice shall not always be possible, and that the obligations of
                PreMD
                under this section 10 shall
                be subject to PreMD’s need and desire to proceed with meetings with such
                persons on a commercially reasonable and timely and efficient basis.
                If
                such a meeting occurs and McNeil has not been provided with such
                advance
                notice, PreMD will as soon as reasonably practicable after such meeting
                provide the McNeil Designate with a summary of the material matters
                discussed and agreed upon at such
                meeting.

            


    

    


    
      	
              11

            	
              Subject
                to compliance with the terms and conditions of the *****, the parties
                agree that the Collaboration IP shall be considered as Licensed Know-How
                for the purposes of the Agreement.

            


    

     

    Royalty
      on ***** Sales

    
      	
              12

            	
              The
                parties acknowledge and agree that for the purposes of provisions
                of
                Article IV of the Agreement the Net Sales of the Licensed Product
                are to
                include any Net Sales attributed to the sales of
                *****.

            


    

    Miscellaneous

    
      	
              13

            	
              In
                all other respects, the terms and conditions of the Agreement shall
                remain
                in full force and effect,
                unamended.

            


    

    
      	
              14

            	
              The
                provisions of sections 18.7, 18.9 and 18.10 shall apply, mutatis
                mutandis,
                to this amending agreement. 

            


    

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    IN
      WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day
      and
      year first written above. 

     

    MCNEIL
      PDI INC.

    (acting
      through its McNEIL Consumer Healthcare

    division
      on behalf of McNEIL PDI Inc.)

    


    By:
      /s/______________________

    Name:

    Title:

    Authorized
      Signing Officer



    PREMD
      INC.

    A
      Canadian corporation

    


    By:
      /s/______________________

    Name:

    Title:

    Authorized
      Signing Officer