**EXHIBIT 10.9**

** **

**FOURTH AMENDMENT TO LICENSEAGREEMENT**

 

This FOURTHAMENDMENT TO LICENSE AGREEMENT (this “Amendment”) is entered into as of this13th day of November, 2007 by and between Advanced Life Sciences Holdings, Inc.,a Delaware corporation (“ALS”), and Abbott Laboratories, an Illinoiscorporation (“Abbott”) to amend the terms of that certain License Agreementdated December 13, 2004 between Abbott and ALS (the “Agreement”).

 

## BACKGROUND

##  

A.                                   Abbott and ALS entered into the Agreement on December 13,2004.

 

B.                                     ALS has requested the right to practice severalAbbott patents related to the manufacture of Compound A.

 

C.                                   The parties wish to amend the Agreement to allowALS right to practice several Abbott patents related to the manufacture ofCompound A.

 

1.                                       Incorporation of Agreement. All capitalized terms which are not definedherein shall have the same meanings as set forth in the Agreement, and theAgreement, to the extent not inconsistent with this Amendment, is incorporatedherein by this reference as though the same was set forth in its entirety. Tothe extent any terms and provisions of the Agreement are inconsistent with theamendment set forth in Paragraph 2 below, such terms and provisions shall bedeemed superseded hereby. Except as specifically set forth herein, theAgreement shall remain in full force and effect and its provisions shall bebinding on the parties hereto.

 

2.                                       Amendment of the Agreement.

 

a). Section 1.6 is hereby amended byinserting the following sentence prior to the last sentence of Section 1.6:

 

“ALS shall hold in confidence and shall notdirectly or indirectly disclose or provide to any third party ConfidentialInformation pertaining to the patents listed in Exhibit D without Abbott’sprior written consent. Notwithstanding the forgoing, ALS may disseminateConfidential Information pertaining to the patents listed in Exhibit Dwithout Abbott’s prior written consent to those of its employees, Affiliates,contractors, agents and sublicensees (if any) who have a need therefore incarrying out their functions; provided, however, that such employees,Affiliates, contractors, agents and sublicensees are bound by confidentialityobligations covering such Confidential Information at least as rigorous asthose set forth herein and that ALS shall be responsible for any breach of suchconfidentiality obligations.”

 

b). Article 2 is hereby amended asfollows:

 

The original License Grant paragraph in theAgreement and later Amended in the Second Amendment dated August 2, 2005,shall become paragraph “(a)”.

 

The following paragraph “(b)” shall be addedas follows:

 

“(b) Subject to the terms and conditions of this Agreement, Abbott hereby grants toALS a non-exclusive license to the patents listed in Exhibit D, with aright to grant sublicenses, to make, use, and manufacture Compound A andProduct(s) containing Compound A, in the Territory. In the event that ALS wantsto use a third party to make, use, and manufacture Compound A and Product(s)containing Compound A on behalf of ALS, ALS will provide thirty (30) days priorwritten notice to Abbott informing Abbott of ALS’s intent to sublicense thepatents listed on Exhibit D to such third party for the manufacture ofCompound A and Product(s) containing Compound A.

 

c). Section 10.2, paragraph (a) ishereby amended to add subparagraph (iii).

 

Add Subparagraph (iii):

 

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“(iii)  Ifa third party infringes any patent listed in Exhibit D, Abbott has thesole discretion, but not the obligation, to institute and prosecute an action,lawsuit or other proceeding to abate or resolve such infringement by settlementor otherwise. ALS, or its sublicensees, have no rights to enforce any of thepatents listed in Exhibit D. In the event that Abbott does institute an action,lawsuit or other proceeding against a third party, ALS shall cooperate fully ifreasonably requested to do so by Abbott.”

 

d). Section 12.2 is hereby amended.

 

The originalparagraph in Section 12.2 of the Agreement shall become paragraph “(a)”.

 

The following paragraph “(b)” shall be addedas follows:

 

“(b) Abbott has the sole discretion as to the prosecution and maintenance of allpatents listed in Exhibit D. In the event that Abbott determines toabandon any patent application that is included in Exhibit D or to nolonger maintain any patent that is included within Exhibit D, Abbott shallgive ALS ninety (90) days prior written notice before taking any action orinaction in furtherance of such determination during which time ALS shall havethe right but not the obligation to assume the prosecution of such patentapplication or the maintenance of such patent. Abbott and ALS shall consult andcooperate with each other, and Abbott shall keep ALS reasonably informed, withrespect to the prosecution and maintenance of the patents listed in Exhibit Dhereunder. Abbott will provide ALS with copies of all material correspondencesent to or received from the United States Patent and Trademark Office inconnection with the prosecution and maintenance of the patents listed in Exhibit D.

 

3.                                       Effectuation. The amendment to the Agreement contemplated by this Amendment shall bedeemed effective as of the date first written above upon the full execution ofthis Amendment and without any further action required by the parties hereto. Thereare no conditions precedent or subsequent to the effectiveness of thisAmendment.

 

4.                                       Counterparts. This Amendment may be executed in two or more counterparts, eachof which shall be deemed to be an original, but all of which together shallconstitute one and the same instrument. One or more counterparts of thisAmendment may be delivered by facsimile, with the intention that deliveryby such means shall have the same effect as delivery of an original counterpart thereof.

 

IN WITNESSWHEREOF, the parties hereto have duly executed this Amendment as of the datefirst above written.

 

 
| **ABBOTT**       | ** **                        | **ADVANCED LIFE** |
|------------------|-----------------------------------|-------------------|
| **LABORATORIES** | **SCIENCES  HOLDINGS, INC.** |
|             |                              |

 
| By:                                                                                                              | /s/ John Poulos |                                  | By: | /s/ Michael T. Flavin |   |
|------------------------------------------------------------------------------------------------------------------|-----------------|---------------------------------------|-----|-----------------------|--------|
| Name:  John Poulos                                                                                          | Name:           | Michael T. Flavin, Ph.D.              |
| Its:       Group Vice  President, Global Licensing and New 

Business  Development | Its:            | Chairman and Chief Executive  Officer |

 

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EXHIBIT D

 

U.S. Patent No. 6,028,181  (Claims 8 and 9 only)

 

U.S. Patent No. 6,437106

 

U.S. Patent No. 6,579986

 

U.S. Patent No. 6,417,366

 

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