EXHIBIT 10.62
SECOND AMENDMENT
TO
LICENSE DEVELOPMENT AND MARKETING
AGREEMENT
This Second Amendment to License,
Development and Marketing Agreement (“Second
Amendment”) dated as of December 24, 2008 between
Inspire and Allergan.
Whereas the undersigned entered into
a License, Development and Marketing Agreement dated as of
June 22, 2001, as amended December 8, 2003
(“Agreement)”; and
Whereas the undersigned wish to
amend the Agreement as follows:
1. Inspire
shall cease co-promoting Restasis ™
(as previously
elected under Section 7.3(c)) as of December 31,
2008.
2. Section 7.3(c)
shall be deleted in its entirety.
3. Section 7.3(d)
shall be deleted in its entirety and replaced by the following new
Section 7.3(d).
(d) In addition to
the rights set forth in Section 7.3(a) and (b), in the event
that the JDC decides to terminate the Development Program for all
Inspire Products in the U.S. in accordance with its
responsibilities under Section 3.2(a) of this Agreement (the
“Program Termination”), Inspire shall have the right to
co-promote Restasis ™ . Such right must be elected by
Inspire by providing written notice of such election to Allergan no
later than sixty (60) days after the Program Termination. The
co-promotion of Restasis ™ shall be subject to the
following:
(i) Within
six (6) months of such Program Termination, Inspire shall
provide for each quarter during such co-promotion, an average of
twenty percent (20%) of the budgeted Allergan sales force
effort, as set forth in the latest Marketing Plan provided to the
JCC for Restasis ™
, based on the
number of Allergan Full-Time Sales Representatives in the
U.S.
(ii) In
the event that during any two (2) calendar quarters thereafter
Inspire fails to provide an average of twenty (20%) of
Allergan’s budgeted sales force effort as required hereunder,
Inspire shall have one (1) calendar quarter to cure such
failure. If Inspire is unable to cure such failure during the
calendar quarter cure period, the royalty amounts due on Net Sales
of Restasis ™
shall be adjusted on
a going-forward basis, as set forth in
Section 9.7(b)(iii).
(iii) The
Inspire sales force effort shall be provided by Inspire at its sole
expense.
(iv) The JCC
shall determine the targets, roles and assignments of
Inspire’s and Allergan’s sales representatives within
such selling effort.
(v) Inspire
shall provide Allergan with at least sixty (60) days notice of
its intent to begin co-promoting Restasis ™
and at least sixty
(60) days notice of its intent to cease co-promoting
Restasis ™ pursuant to this
Section 7.3(d), and, in any event, if it commences the
co-promotion of Restasis ™ , Inspire shall not cease
co-promoting Restasis ™ during any Restasis
™ marketing cycle (trimester) as
determined by the JCC.
(vi) It
is understood that Allergan will retain exclusive rights to sell
and distribute Restasis ™ in the Restasis
™ Territory, so that
Inspire’s right and obligation to promote would be in the
nature of a co-promotion arrangement in which Inspire and/or its
designee promote Restasis ™ , but sales continue to be made
by Allergan.
(vii) In
the event Inspire materially fails to competently co-promote
Restasis ™ , violates any law or regulation
in connection with such co-promoti
