Exhibit 10.26
AMENDMENT NO. 4 TO LICENSE
AGREEMENT
THIS AMENDMENT NO. 4 TO LICENSE
AGREEMENT is made as of the 25th day of March, 2004 by and between
BENTLEY PHARMACEUTICALS, INC., a Delaware corporation, with
offices at Bentley Park, 2 Holland Way, Exeter, New Hampshire 03833
(hereinafter, “BENTLEY” or “Licensor”), and
AUXILIUM PHARMACEUTICALS, INC. (formerly Auxilium
A², Inc.), a Delaware corporation having a principal
place of business at 160 W. Germantown Pike, Norristown,
Pennsylvania 19401 (hereinafter, “AUXILIUM” or
“Licensee”). BENTLEY and AUXILIUM may be referred
to as a “Party” or, collectively, as
“Parties.”
RECITALS
WHEREAS the parties have entered
into that certain License Agreement, dated May 31, 2000,
relating to the grant by BENTLEY to AUXILIUM of a license of
certain technology (the “License
Agreement”);
WHEREAS the parties clarified
certain aspects of the License Agreement by entering into Amendment
Nos. 1, 2 and 3 to the License Agreement, dated October 31,
2000, May 31, 2001 and September 6, 2002, respectively
(“Previous Amendments”); and
WHEREAS, BENTLEY would like to
provide incentives to AUXILIUM to enter into sub-licenses for the
Products in territories outside the United States; and
WHEREAS the Parties wish to further
amend the License Agreement to clarify certain sections of the
License Agreement;
NOW, THEREFORE, in consideration of
the promises and mutual covenants contained herein, and INTENDING
TO BE LEGALLY BOUND HEREBY, the Parties further amend the License
Agreement as follows:
ARTICLE I
DEFINITIONS
1.1 Except as amended below, the
terms defined in the License Agreement, as amended by the Previous
Amendments, shall remain unchanged. Unless otherwise defined in
this Amendment, all capitalized terms in this Amendment shall have
the meanings ascribed to them in the License Agreement, as amended
by the Previous Amendments.
“Net Sales Price” means,
with respect to the Product, the gross amount invoiced by Licensee
for such Product, less deductions for:
(i) returned goods;
(ii) trade and quantity discounts; (iii) rebates,
including those in respect of any governmental subsidized program,
rebate payments given to wholesalers, buying groups, healthcare
insurance carriers or other institutions; (iv) sales or other
taxes actually paid by Licensee or its sublicensee or distributor,
not including taxes assessed on the income resulting from such
sales; and (v) freight allowances, insurance and customs
duties, to the extent any of the foregoing are identified on the
invoice for the Product. If Product is sold for consideration other
than cash, the fair market value of such other consideration shall
be included in Net Sales. If a Product is sold in a package or kit
containing another product
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