AMENDMENT N° 1 TO THE AMENDED AND RESTATED LICENSE AND
SUPPLY AGREEMENT
THIS AMENDMENT N° 1 TO THE AMENDED AND RESTATED LICENSE AND
SUPPLY AGREEMENT
(the “Amendment”) effective as of the Closing Date, is
made and entered into by and between Columbia Laboratories
(Bermuda) Limited, a corporation organized and existing under the
laws of Bermuda (“Licensor”) and Ares Trading S.A., a
corporation organized and existing under the laws of Switzerland
(“Licensee”). Licensor and Licensee may be referred to
herein as a “Party” or, collectively, as
“Parties.”
WHEREAS
, the Parties entered into an Amended and Restated License and
Supply Agreement on June 4, 2002 (the “License and Supply
Agreement”), amending and restating the License and Supply
Agreement entered into between the Parties on May 20,
1999;
WHEREAS
, the Parties wish to enter into this Amendment as a result of the
Parties, Serono Inc. (which is an Affiliate of Licensee), and
Columbia Laboratories, Inc. entering into an agreement pursuant to
which Licensee’s U.S. rights under the License and Supply
Agreement are terminated (the “U.S.
Agreement”);
WHEREAS
the Parties shall enter into this Amendment simultaneously with the
execution of the U.S. Agreement;
WHEREAS
, capitalized terms used and not otherwise defined in this
Amendment are used as defined in the License and Supply Agreement
and/or the U.S. Agreement. If a capitalized term is defined in both
the License and Supply Agreement and the U.S. Agreement, then for
the purposes of this Amendment, the definition in the License and
Supply Agreement shall apply.
NOW, THEREFORE
, in consideration of the various promises and undertakings set
forth herein, the Parties agree to amend the License and Supply
Agreement as follows:
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1.
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Section 1 (f)
is deleted and not
replaced.
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2.
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The
following phrase of Section 1 (h) is deleted and not
replaced:
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“(i) the United States or
(ii)”
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3.
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The
following wording is inserted to the first sentence of
Section 1 (s), between the phrases “or
sublicensees” and “from or on account
of”:
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“(for the sake of clarity, the
definition of Net Sales hereunder shall not include any sales of
Product by the Licensor)”
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4.
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The
last two sentences of Section 1 (s) are deleted and not
replaced.
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5.
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Section 1 (z) (bb)
is amended to read as
follows:
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“Territory” shall mean all countries and territories of
the world except for the United States and for Sub-Saharan Africa.
“Sub-Saharan Africa” shall mean the following
countries: the Republic of South Africa, Lesotho, Botswana,
Zimbabwe, Namibia,
Mozambique, Zaire, Kenya, Malawi, Mauritius, Seychelles,
Madagascar, Zambia and Swaziland.”
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6.
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Section 2 (g)
is amended to read as
follows:
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“Licensor shall make reasonable efforts to obtain from its
licensee in Sub-Saharan Africa any right such licensee may have to
market, use, sell, make or have made the Product and to use the
Trademarks. Upon Licensor obtaining such rights,
“Territory” under this Agreement shall be automatically
redefined to mean “all the countries in the world, excluding
the United States”. Any incidental out-of-pocket costs
incurred by Licensor in obtaining such rights shall be for the
account of Licensee, when prior approved by
Licensee.”
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7.
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Section 2 (h)
is deleted and not
replaced.
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8.
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Sections 3 ( a),
(b) and (c ) are deleted and not
replaced.
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9.
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The
last sentence of the first paragraph of Section 4 (m)
(which, for the avoidance of doubt, begins with “Licensor may
manufacture..” and ends with “..shearing cycles.”
is deleted and not replaced.
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10.
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The
last paragraph Section 4 (m) (which is the last
sentence of Section&nbs
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