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EXHIBIT 10.7
AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT
This Amendment No. 1 to Distribution Agreement (this "Amendment") is
made as of November 25, 1998 between Ortho-XxXxxx Pharmaceutical Corporation, a
Delaware corporation ("Ortho"), and Women First HealthCare, Inc., a Delaware
corporation ("WFHC"). In consideration of the mutual covenants contained
herein, the parties hereto agree to amend the Distribution Agreement dated July
1, 1998 by and between Ortho and WFHC (the "Distribution Agreement") as
follows:
1. Definitions. "Article I - Definitions," of the Distribution Agreement
is hereby amended by:
(a) deleting the definitions labeled "Inventory Base Amount" and
"Inventory Payment" in their entirety;
(b) deleting the phrase ***" from the definition of "Royalty
Payment" in such Article I and by replacing the same with the phrase ***"; and
(c) inserting the following new definition of "Actual Manufacturing
Costs" in Article I in its proper alphabetical order:
"Actual Manufacturing Costs" shall mean, with respect to a given
period, the actual number of Trade Units purchased during such period
multiplied by the applicable manufacturing costs per unit set forth
on Exhibit F attached hereto."
2. Payments. Section 3.1 of the Distribution Agreement is hereby amended
by deleting the phrase "Inventory Payment" at each instance where such phrase
appears in Section 3.1 and by replacing the same with the phrase "Actual
Manufacturing Costs".
3. Term. Section 6.1 is hereby amended by deleting the phrase ***" from
the second (2nd) to last line of such section and by replacing the same with the
phrase ***.
4. 1998 Year-to-Date. Notwithstanding any other provision of the
Distribution Agreement to the contrary, the parties hereby amend the
Distribution Agreement as follows: (i) when computing the Invoiced Amount paid
by WFHC on a year-to-date basis for 1998, an amount equal to *** shall be
added to the Invoiced Amount (representing the actual Trade Units shipped by
Ortho between January 1, 1998 and June 30, 1998 multiplied by the applicable
Transfer Price); and (ii) when computing the Actual Net Sales of WFHC on a
year-to-date basis for 1998, an amount equal to *** shall be added to Actual
Net Sales (representing the actual net sales by Ortho between January 1, 1998
and June 30, 1998). By way of illustration and not limitation, the parties agree
that the year-to-date payment reconciliation under Section 3.1(b) of the
Distribution Agreement for the month of August 1998 is attached hereto as
Exhibit G.
5. Exhibit A. Exhibit A to the Distribution Agreement is hereby deleted
in its entirety and is replaced by the new Exhibit A attached hereto.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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6. Binding Effect. After the date of this Amendment, each reference to
the Agreement shall mean and refer to this Agreement as amended hereby. Except
as provided in this Amendment No. 1, the Distribution Agreement and all related
documents shall remain in full force and effect and are ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed by their duly authorized representative.
ORTHO-XXXXXX PHARMACEUTICAL
CORPORATION
By: /S/
-------------------------------------
Name:
Title:
WOMEN FIRST HEALTHCARE, INC.
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
Title: President & CEO
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Exhibit A
Ortho-Est
Payment Reconciliation - Trade Product
1. No Reconciliation Payment Due
Actual Trade Units Shipped Transfer Price Total
-------------------------- -------------- ---------
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Total invoiced product $ ***
Total forecasted IBT (36,637 divided by 12) $ ***
Total Invoiced Product over IBT forecast $ ***
Actual Net Sales $ ***
Forecasted Net Sales $ ***
Actual Incremental Sales (Assumes
no incremental sales) $ --
Royalty payment of 15% on incremental sales $ --
Actual Manufacturing Cost $
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Actual Manufacturing Cost
due to OMP $ ***
---------
Equalization Payment Due (Rebate
Payment Due) $ ***
=========
2. Equalization Payment Due
Actual Trade Units Shipped Transfer Price Total
-------------------------- -------------- ---------
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Total invoiced product $ ***
Total forecasted IBT (36,637 divided by 12) $ ***
Total forecasted IBT over total invoiced
product $ ***
Actual Net Sales $ ***
Forecasted Net Sales $ ***
---------
Actual Incremental Sales (Assumes no
incremental sales) $ ***
Royalty payment of 15% on incremental sales $ ***
Actual Manufacturing Cost
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Actual Manufacturing Cost due to OMP $ ***
---------
Equalization Payment Due (Rebate
Payment Due) $ ***
=========
3. Rebate Payment Due
Actual Trade Units Shipped Transfer Price Total
-------------------------- -------------- ---------
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Total invoiced product $ ***
Total forecasted IBT (36,637 divided by 12) $ ***
Total forecasted IBT over total invoiced
product $ ***
Actual Net Sales $ ***
Forecasted Net Sales $ ***
---------
Actual Incremental Sales $ ***
Royalty payment of 15% on incremental sales $ ***
Actual Manufacturing Cost
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
---------
Actual Manufacturing Cost due to OMP $ ***
---------
Equalization Payment Due/(Rebate
Payment Due) $ ***
=========
--------------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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Exhibit F
Ortho-Est
Standard Cost
Trade 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
-------------------------------------------------------------------------------------------
.625 mg *** *** *** *** *** *** *** *** *** ***
-------------------------------------------------------------------------------------------
1.25 mg *** *** *** *** *** *** *** *** *** ***
-------------------------------------------------------------------------------------------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT G
-----------------
JULY 1, 1998 DISTRIBUTION AGREEMENT BETWEEN ORTHO-XxXXXX
AND WOMEN FIRST HEALTHCARE, INC.
ORTHO-EST
PAYMENT RECONCILIATION - TRADE PRODUCT
AUGUST 1998
Actual Trade Units Shipped Transfer Price Total
-------------------------- -------------- -----------
Jan - June:
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
July:
.625 MG *** $ *** $ ***
1.25 MG *** $ *** $ ***
August:
.625 MG - $ *** $ -
1.25 MG *** $ *** $ ***
-----------
Total Invoiced Product $ ***
Total forecasted IBT
$ *** X 8 months $ ***
-------- -----------
12
TOTAL FORECASTED IBT OVER TOTAL INVOICED PRODUCT $ ***
Actual Net Sales $ ***
Jan - June actual Ortho-XxXxxx $ ***
July $ ***
August $ ***
Forecasted Net Sales
$ *** X 8 months $ ***
-------- -----------
12
Actual Incremental Sales $ ***
ROYALTY PAYMENT OF 15% ON INCREMENTAL SALES $ ***
ACTUAL MANUFACTURING COSTS $ ***
July $ ***
August $ ***
PAYMENT DUE WOMEN FIRST HEALTHCARE, INC.
EQUALIZATION PAYMENT DUE/(REBATE PAYMENT DUE) $ (1,977,928)
((***) + *** + ***)
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
