Exhibit 10.1


 


BINDING TERM SHEET


 


This
binding term sheet is entered into as of this 30th day of
September, 2009 by and between Advanced Life Sciences Holdings, Inc., a
Delaware corporation (“ADLS”) and Abbott Laboratories, an Illinois corporation
(“Abbott”).


 


ADLS
and Abbott agree to the following binding terms:


 


1.                                       Section 6.2(a)(i)
of the License Agreement, as amended by the Amended and Restated Second
Amendment to License Agreement (“Second Amendment”), shall be deleted in its
entirety and replaced with the following:


 


“seventeen
percent (17%) on Net Sales of up to $100,000,000; sixteen percent (16%) on Net
Sales of $100,000,000.01 to $200,000,000; and fifteen percent (15%) on Net
Sales of $200,000,000.01 and above, with respect to which, but for the license
granted hereunder, the manufacture, use or sale of Product would infringe a
Valid Claim in such country, and”


 


2.                                       The $
30,000,000 milestone payment due Abbott from ALS upon United States Regulatory
Approval of Compound A pursuant to Section 6.1 of the License Agreement shall
be paid to Abbott as follows: (i) $ 20,000,000 within twenty (20) business days
of Regulatory Approval; (ii) $ 5,000,000 six (6) months after receipt of
Regulatory Approval; and (iii) $ 5,000,000 twelve (12) months after receipt of
Regulatory Approval.


 


3.                                       Mutual Release 


 


a.                                       In
consideration for the terms outlined above, ADLS for itself, and its parents,
subsidiaries, affiliates, predecessors, successors, and assigns waives,
releases, and forever discharges (i) Abbott; (ii) Abbott’s parents,
subsidiaries, affiliates, predecessors, successors,


 

















 


and
assigns; and (iii) Abbott’s past, present, and future officers, directors,
partners, members, employees, agents, and servants from any and all claims,
duties, obligations, demands, actions, causes of action, debts, sums of money,
suits, contracts, agreements, promises, damages, and liabilities, of whatever
kind, nature, character, or description, whether in law or equity, whether
arising in tort, contract, equity, or otherwise, whether presently known or
unknown, and whether anticipated or unanticipated, which ADLS or its successors
and assigns ever had or now have arising out of, in connection with, or
relating in any way to the License Agreement, as amended, including all claims
ADLS has or could have asserted in the arbitration currently pending before M.
Scott Donahey captioned In the Matter of the
Arbitration Between Advanced Life Sciences Holdings, Inc. and Abbott
Laboratories, Case No. CH 03624.


 


b.                                      Abbott for
itself, and its parents, subsidiaries, affiliates, predecessors, successors,
and assigns waives, releases, and forever discharges (i) ADLS; (ii) ADLS’s
parents, subsidiaries, affiliates, predecessors, successors, and assigns; and (iii)
ADLS’s past, present, and future officers, directors, partners, members,
employees, agents, and servants from any and all claims, duties, obligations,
demands, actions, causes of action, debts, sums of money, suits, contracts,
agreements, promises, damages, and


 


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liabilities,
of whatever kind, nature, character, or description, whether in law or equity,
whether arising in tort, contract, equity, or otherwise, whether presently
known or unknown, and whether anticipated or unanticipated, which Abbott or its
successors and assigns ever had or now have arising out of, in connection with,
or relating in any way to the License Agreement, as amended.


 


c.                                       The
consequences of the foregoing waiver and release provisions have been explained
by each of the Parties’ respective counsel. Each of the Parties acknowledge it
may hereafter discover facts different from, or in addition to, those which it
now knows or believed to be true with respect to the matters released herein,
and agrees that this Settlement Agreement and the release contained herein
shall be and remain effective in all respects notwithstanding such different or
additional facts or the discovery thereof.


 


4.                                       This term sheet
is binding on the parties and specifically enforceable upon execution. The
terms of this document shall be incorporated in a formal amendment to the
Agreement between ADLS and Abbott. To the extent the parties are unable to
reach agreement with respect to the language of the amendment, any disagreement
shall be resolved by M. Scott Donahey to the extent he is willing to do so.
Should Mr. Donahey be unwilling to resolve any dispute between the parties,
Abbott and ALS shall select a neutral to resolve their dispute according to the
process described in Exhibit C to the Agreement.


 


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  Advanced
  Life Sciences Holdings, Inc.,

  	
   

  	
  Abbott
  Laboratories

  
	
  By:

  	
  /s/
  Michael T. Flavin

  	
   

  	
  By:

  	
  /s/
  Sean Murphy

  
	
  Its

  	
  Chief
  Executive Officer

  	
   

  	
  Its

  	
  Vice
  President of Business Development

  



 


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