COLUMBIA LABORATORIES, INC. 354 Eisenhower Parkway Second Floor – Plaza I Livingston, NJ TEL: (973) 994-3999 FAX: (973) 994-3001
COLUMBIA
LABORATORIES,
INC.
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000
Xxxxxxxxxx Xxxxxxx
Xxxxxx
Xxxxx –
Xxxxx X
Xxxxxxxxxx,
XX
TEL:
(000) 000-0000
FAX:
(000) 000-0000
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Exhibit
10.62
April
14,
2006
VIA
FACSIMILE (000) 000-0000
PharmaBio
Development Inc.
Attention:
Xxxxxx X. Xxxxxx, President
0000
Xxxxxxxxxx Xxxxx
Suite
200, Riverbirch Building
Durham,
North Carolina 27703
Re:
Letter Agreement Supplement to Striant® Investment and Royalty
Agreement
Dear
Xxx:
We
refer
to the Investment and Royalty Agreement between Columbia Laboratories, Inc.
(“Columbia”) and PharmaBio Development Inc. (“PharmaBio”), dated March 5, 2003
(the “Agreement”). The purpose of this letter agreement is to supplement the
Agreement by setting forth the terms and conditions under which Columbia will
pay certain royalties under Section 2.3 of the Agreement on a date earlier
than
otherwise required under such section. Capitalized terms that are not defined
in
this letter agreement have the same meaning as set forth in the
Agreement.
Pursuant
to Section 2.3 of the Agreement, if by the end of the third Annual Period (i.e.
September 30, 2006), PharmaBio has not received at least $13 million in
aggregate royalties under Section 2.3 (with respect to Net Sales for the first
three Annual Periods), then Columbia is required to pay PharmaBio not later
than
45 days following the end of the calendar quarter (i.e. November 14, 2006)
the
difference between the amount of royalties actually received and $13 million
(the “True Up Payment”). Columbia now expects the amount of the True Up Payment
to be approximately $12 million.
Columbia
proposes to pay $12 million of the True Up Payment on an accelerated basis
via
wire transfer in immediately available funds to an account designated by
PharmaBio. Specifically, Columbia agrees to pay PharmaBio on April 14, 2006,
Eleven Million Five Hundred Eighty-Five Thousand Two Hundred Thirty-Five Dollars
($11,585,235) (the “Early Payment”), which is the present value of a $12 million
True Up Payment using a six percent (6%) annual discount factor. In
consideration of such payment, PharmaBio agrees that PharmaBio will be deemed,
solely for purposes of the Agreement, to have received royalties by the end
of
the third Annual Period of $12 million plus royalties actually received by
PharmaBio with respect to Net Sales through September 30, 2006, subject to
the
last sentence of the next paragraph.
Following
the end of the third Annual Period, Columbia will determine the amount of the
actual True Up Payment that is due and payable as required by Section 2.3.
For
clarity, the amount of the True Up Payment will equal the excess, if any, of
$13
million over the sum of (i) the royalties actually received by PharmaBio (other
than
royalties deemed paid on account of the Early Payment) and (ii) $12 million
(royalties deemed paid on account of the Early Payment) (the sum of (i) and
(ii), the “Aggregate Royalties”). However, if the Aggregate Royalties exceed $13
million, then PharmaBio shall pay to Columbia the excess of the Aggregate
Royalties over $13 million (such amount, the “Excess Royalties Amount”) within
fifteen (15) days after PharmaBio receives Columbia’s written calculation of the
Excess Royalties Amount, and, solely for purposes of the Agreement, the amount
of royalties deemed received by PharmaBio through the end of the third Annual
Period shall be $13 million.
For
the
avoidance of doubt, this letter agreement supplements and does not amend the
Agreement, which remains in full force and effect. Without limiting the
foregoing, Columbia’s payment of the Early Payment does not affect Columbia’s
obligation to pay royalties with respect to Striant® Net Sales during the
quarter ended June 30, 2006.
This
letter agreement and any amendment hereto may be executed in counterparts,
each
of which when executed and delivered shall be deemed to be an original and
all
of which counterparts taken together shall constitute but one and the same
instrument. The execution of this letter agreement and any such amendment by
either party will not become effective until counterparts hereof have been
executed and delivered by both parties hereto. This letter agreement may be
executed by either party by delivery of such party’s signature thereon by
facsimile or by email transmission in portable digital format, or similar
format.
This
letter agreement shall be governed by and construed in accordance with the
Laws
of the State of Delaware, as applied to agreements executed and performed
entirely in the State of Delaware, without regard to conflicts of law
rules.
Please
acknowledge your agreement to the foregoing by countersigning this letter
agreement on the following page.
Sincerely,
COLUMBIA
LABORATORIES, INC.
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx
X. Xxxxxxxx
Title:
Vice
President, Finance, and
Chief Financial Officer
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PharmaBio
Development Inc.
April
14,
2006
Page
3
of
3
ACKNOWLEDGED
AND ACCEPTED:
PHARMABIO
DEVELOPMENT INC.
By: /s/ Xxxxxx Xxxx Xxxxxx | |||
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Name: Xxxxxx
Xxxx Xxxxxx
Title:
President
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