Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND
RESTATED LICENSE,
COMMERCIALIZATION AND SUPPLY
AGREEMENT
THIS FIRST AMENDMENT TO AMENDED
AND RESTATED LICENSE, COMMERCIALIZATION AND SUPPLY
AGREEMENT (this “
Amendment ”), dated as of January 9, 2009 (the
“ Amendment Effective Date ”), is entered into
by and among Indevus Pharmaceuticals, Inc., a corporation organized
and existing under the laws of the State of Delaware and having its
principal office at 33 Hayden Avenue, Lexington, MA 02421 (“
Indevus ”), and Allergan USA, Inc., a corporation
organized and existing under the laws of the State of Delaware and
having its principal office at 2525 Dupont Drive, Irvine, CA 92612
(f/k/a Esprit Pharma, Inc.) (“ Allergan ”).
Indevus and Allergan are collectively referred to herein as the
“ Parties ”.
WITNESSETH:
WHEREAS , the Parties entered into that certain Amended
and Restated License, Commercialization and Supply Agreement, dated
as of September 18, 2007 (as in effect as of the Amendment
Effective Date, the “ Agreement ”);
and
WHEREAS , the Parties mutually desire to extend the
Copromotion Period and to otherwise amend the Agreement to set
forth certain terms and conditions applicable to the extension of
the Copromotion Period.
NOW , THEREFORE , in consideration of the
foregoing statements and the mutual agreements and covenants herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Definitions and References
. Except as set forth herein, capitalized terms not otherwise
defined or amended in this Amendment shall have the meaning
ascribed to them in the Agreement. References to Articles or
Sections are to the same with all their subparts as they appear in
the Agreement. References to Paragraphs are to the numbered
paragraphs with all their subparts as they appear in this
Amendment.
2. Amendments to the
Agreement . Effective as of the Amendment Effective Date, the
Agreement shall be amended as set forth in this Paragraph
2:
(a) Section 1.20 shall be amended and restated
in its entirety to read as follows:
“1.20 Copromotion
Period ” means the period commencing on the Effective
Date and expiring on (a) September 30, 2009, or
(b) the last day of any applicable Cure Period in which
Indevus completes its Detail Obligations in accordance with
Section 5.5(b)(ii) after September 30,
2009.”
(b) Section 5.5 (b) shall be amended to
add the following subsection (iii) after subsection
(ii) thereof:
“(iii) The number of Quarterly
Indevus Details, all of which shall be Secondary Position Details,
to be delivered to the Indevus Target Prescribers during the
Calendar Quarters ending June 30, 2009 and September 30,
2009 shall be twenty-three thousand four hundred thirty-seven
(23,437) per Calendar Quarter.”
(c) Section 6.3 shall be amended to
(i) change the current subsection (c) thereof to
subsection (d); and (ii) insert the following new subsection
(c) thereof:
“(c) Allergan shall pay to
Indevus, as a sales force reimbursement for the Indevus Sales
Force, an amount equal to (i) US$1,150,000 (one million one
hundred fifty thousand dollars) for each Calendar Quarter from
April 1, 2009 through September 30, 2009.
The sales force reimbursement
amounts set forth in (a), (b) and (c), above (the “
Sales Force Reimburs
