EXHIBIT 10.60
AMENDMENT FOUR
TO THE MANUFACTURING AGREEMENT
BY AND BETWEEN VIVUS AND CHINOIN
This Amendment Four ("Amendment Four"), effective as of December 31, 2006
("Amendment Date"), by and between VIVUS, Inc., having a principal place of
business at 1172 Castro Street, Mountain View, CA 94040 United States of America
("VIVUS"), and CHINOIN Pharmaceutical and Chemical Works Private Co. Ltd.,
having a principal place of business at H-1045, Budapest, To u. 1-5 Hungary
("CHINOIN") (VIVUS and CHINOIN collectively, the "Parties"), amends (i) that
certain Manufacturing Agreement by and between the Parties dated December 20,
1995 (the "Agreement") and (ii) Amendment One to the Agreement dated
December 11, 1997 ("Amendment One") and (iii) Amendment Two to the Agreement
dated December 18, 1998 ("Amendment Two") and (iv) Amendment Three to the
Agreement dated November 21, 2002 ("Amendment Three")
The Parties desire to amend the Agreement, the Amendment One, the Amendment Two
and Amendment Three as set forth herein below;
NOW, THEREFORE, the Parties agree as follows:
1.
AMENDMENT.
THIS AMENDMENT FOUR HEREBY AMENDS THE AGREEMENT TO
INCORPORATE THE TERMS AND CONDITIONS SET FORTH IN THIS AMENDMENT FOUR.
THE
RELATIONSHIP OF THE PARTIES SHALL CONTINUE TO BE GOVERNED BY THE TERMS AND
CONDITIONS OF THE AGREEMENT, THE AMENDMENTS ONE, TWO AND THREE, AS AMENDED
HEREIN; AND IN THE EVENT THAT THERE IS ANY CONFLICT BETWEEN THE TERMS AND
CONDITIONS OF THE AGREEMENT OR AMENDMENT ONE OR TWO OR THREE AND THIS AMENDMENT
FOUR, THE TERMS AND CONDITIONS OF THIS AMENDMENT FOUR SHALL CONTROL.
AS USED IN
THIS AMENDMENT FOUR, ALL CAPITALIZED TERMS SHALL HAVE THE MEANINGS DEFINED FOR
SUCH TERMS IN THIS AMENDMENT FOUR OR, IF NOT DEFINED IN THIS AMENDMENT FOUR, THE
MEANINGS DEFINED IN THE AGREEMENT.
2.
MODIFICATION TO THE AGREEMENT.
2.1
THE PARTIES HEREBY ACKNOWLEDGE THE CHANGE OF THE FULL NAME OF
CHINOIN FROM CHINOIN PHARMACEUTICAL AND CHEMICAL WORKS CO. LTD. TO CHINOIN
PHARMACEUTICAL AND CHEMICAL WORKS PRIVATE CO. LTD.
2.2
THE PARTIES HEREBY AGREE TO PROLONG THE VALIDITY OF THE AGREEMENT
FOR CALENDAR YEAR 2011, BEING CONSIDERED AGREEMENT YEAR FIFTH TEEN.
2.3
THE PARTIES AGREE THAT VIVUS SHALL NOT BE REQUIRED TO PURCHASE
FROM CHINOIN ANY AMOUNT OF THE PRODUCT IN THE REMAINDER OF THE TENTH AGREEMENT
YEAR (CALENDAR YEAR 2006), AND ALSO IN AGREEMENT YEARS TWELVE (2008) AND
FOURTEEN (2010).
VIVUS SHALL HAVE ONLY THE
following firm commitments to purchase the Product from CHINOIN during the
validity of the Agreement as extended according to Section 2.2 of this Amendment
Four:
2.3.1
FROM THE ELEVENTH AGREEMENT YEAR ONWARD, AND FOR QUANTITIES OF THE
PRODUCT VIVUS ORDERS THAT ARE IN EXCESS OF ITS EXISTING MINIMUM CONTRACTUAL
PURCHASE OBLIGATIONS, VIVUS AGREES TO PLACE NOT LESS THAN [**] OF ITS ORDERS FOR
THE PRODUCT (BASED ON MASS) FROM CHINOIN.
IN NO EVENT WILL CHINOIN BE OBLIGATED
TO SUPPLY MORE THAN [**] OF PRODUCT ANNUALLY.
2.3.2
SECTION 2.12 OF THE AGREEMENT IS HEREBY AMENDED IN ITS ENTIRETY TO
READ AS FOLLOWS:
2.12
Minimum Quantities
2.12.1
VIVUS agrees that the quantity of Product