EXHIBIT
10.60
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 ”.
W I T N E S S E TH:
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
Reimbursement ”) shall be payable in accordance with
Section 6.4(a).”
3. Other
.
(a) Effect of
Amendment. From and after the Amendment Effective
Date, all references to the Agreement
