Unassociated Document


    Exhibit
10.10

    


    AMENDMENT
NO. 6 TO EXCLUSIVE LICENSE AGREEMENT

    


    AMENDMENT NO. 6 TO EXCLUSIVE LICENSE
AGREEMENT, dated August 30, 2010 (this “Amendment”), between
S.L.A. PHARMA AG (the
“Licensor”) and
VENTRUS BIOSCIENCES,
INC. (the “Licensee”), as
assignee of Paramount Biosciences, LLC (“Paramount”).

    


    WHEREAS, the Licensor and the
Licensee have entered into that certain Exclusive License Agreement, dated as of
March 23, 2007, as amended by Amendment No. 1 to Exclusive License Agreement
dated as of July 24, 2008, Amendment No. 2 to Exclusive License Agreement dated
as of November 20, 2008, Amendment No. 3 to Exclusive License Agreement dated as
of June 1, 2009, Amendment No. 4 to Exclusive License Agreement dated as of
December 18, 2009 (“Amendment No. 4”) and
Amendment No. 5 to Exclusive License Agreement dated as of June 24, 2010 (“Amendment No. 5”),
and as supplemented by those certain side letters dated as of October 27, 2008,
November 20, 2008, and January 22, 2009 (as amended, restated, supplemented or
otherwise modified to date the “License  Agreement”);

    


    WHEREAS, the parties hereto
desire to further amend the License Agreement as set forth herein.

    


    NOW, THEREFORE, in
consideration of the foregoing and for other consideration the sufficiency and
receipt of which is hereby acknowledged by the parties, it is hereby agreed by
and between the parties as follows:

    


    1.           Capitalized
Terms. Terms used herein but not otherwise defined shall have the meaning
ascribed thereto in the License Agreement.

    


    2.           Amendments.

    


    (a)           Given
Licensee’s continuing performance pursuant to the terms and conditions under
this Agreement, the License Agreement shall be in good standing and remain in
full force and effect.

    


    (b)           Effective
as of September 30, 2010, no additional Incostop Project Payments shall accrue
or otherwise be payable (excluding Incostop Project Payments due and payable
prior to September 30, 2010).  For the avoidance of doubt, Anoheal Project
Payments shall continue to be due and payable as set forth in Amendment No.
5.

    


    (c)           Upon
the execution of this Amendment, Licensee shall issue to Licensor a Warrant
substantially in the form attached hereto as Exhibit
A.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (d)           Section
2(f) of Amendment No 4. shall be deleted in its entirety.  For so long as
Licensee complies with the payment terms and conditions of this Amendment, then
Licensor shall not be entitled to terminate this License Agreement for
non-payment.  Licensor shall, however, be entitled to terminate the License
Agreement without notice and with immediate effect, if the Licensee has not
consummated a financing (or series of related financings) resulting in net
proceeds to it of at least US$10 million by December 31, 2010. 
Furthermore, Licensor shall be entitled to terminate the License Agreement with
one month’s notice in the event a third party wishes to enter into a license
agreement relating to Anoheal and Incostop and has entered into a binding
agreement with Licensor to that end. The termination shall however not become
effective if within the one month notice period Licensee pays all moneys
invoiced and unpaid as of such notice and the balance of the Maximum Anoheal
Amount (which in no event shall be the increased Maximum Anoheal Amount
described in Section 2(g) below, even if the events therein have occurred, i.e.
the Maximum Anoheal Amount will be $4,000,000).

    


    (e)           Schedule B of
Amendment No. 4 shall be amended to delete the October 31, 2010 payment date for
the $600,000 payment and replace it with December 31, 2010.

    


    (f)           
Schedule B of
Amendment No. 4 shall be amended to delete the February 28, 2011 payment date
for the $800,000 payment and replace it with the following: “within 14 calendar
days of Licensor providing Licensee with written notification of the completion
of enrollment into the Phase III Study of a Licensed Product incorporating
Anoheal API currently conducted by SLA in Europe (the “Phase III Anoheal
Study”).”

    


    (g)           Upon
the occurrence of the two (2) events set forth below, the “Maximum Anoheal
Amount” shall be increased to $4,400,000, and all references in the License
Agreement to the “Maximum Anoheal Amount” shall refer to such increased
amount:

    


    (1)
Licensee has received a quality-controlled final study report for such study;
and

    


    (2)
between October 1, 2010 and the date Licensee receives such report, Licensee
receives aggregate net proceeds of at least $20,000,000 (i) pursuant to one or
more equity financings or (ii) as up-front consideration for Licensee licensing
its intellectual property to a third party in connection with a partnering
agreement.

    


    (h)           Notwithstanding
anything to the contrary in the License Agreement, in the event Licensee,
pursuant to Section 23.2 of the License Agreement, terminates the License
Agreement (whether in its entirety or with respect to its rights and obligations
with respect to Licensed Products incorporating Anoheal or Incostop), Licensee’s
obligation to pay costs and expenses of performing work described in the
Licensor Clinical Development Plan or any amounts that are part of the Maximum
Anoheal Amount or Maximum Incostop Amount (including, without limitation,
payments set forth in Schedule B of Amendment No. 4) shall terminate as of the
date of Licensee’s notice of such termination (and not on the effective date of
termination), such that Licensee shall only be responsible for such payments
which have accrued prior to the date of such notice. For the avoidance of doubt,
Licensee shall be responsible for all costs (as defined in section...of the
License agreement) that have been actually incurred by Licensor in pursuance of
the Anoheal development plan that are in excess of the “Maximum Anoheal” amounts
already received by Licensor prior to the termination date.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (i)
           If (i) there
is Change of Control (as defined below) prior to the completion of the Phase III
Anoheal Study; and (ii) Licensee, pursuant to Section 23.2 of the License
Agreement, terminates the License Agreement within thirty (30) days following
the closing of the transaction resulting in the Change of Control, then Licensee
shall pay Licensor the balance of the Maximum Anoheal Amount (as increased per
Section 2(g) above) regardless of whether Licensor has incurred expenses equal
to such balance.  Such balance shall be paid within thirty (30) days
following the effective date of termination.  “Change of Control”
means a (i) a merger, share exchange or other reorganization in which the
stockholders of Licensee prior to such transaction do not own a majority of the
voting power of the acquiring, surviving or successor entity, (b) the sale by
one or more stockholders of a majority of the voting power of Licensee, or (c) a
sale of all or substantially all of the assets of Licensee related to the
subject matter of this License Agreement; provided, that, a Change of Control
shall not include a bona fide financing transaction in which voting control of
License transfers to one or more persons or entities who acquire shares of
Licensee’s capital stock in exchange for either an investment in Licensee or the
cancellation of indebtedness owed by Licensee, or a combination
thereof.

    


    (j) 
          If (i) there is
Change of Control following the completion of the Phase III Anoheal Study; and
(ii) Licensee, pursuant to Section 23.2 of the License Agreement, terminates the
License Agreement within thirty (30) days following the closing of the
transaction resulting in the Change of Control, then Licensee shall pay Licensor
(x) the balance of the Maximum Anoheal Amount (as increased per Section 2(g)
above) regardless of whether Licensor has incurred expenses equal to such
balance and (y) any other development expenses mutually agreed upon in writing,
but excluding Anoheal and Incostop Project Payments. Such amount shall be paid
within thirty (30) days following the effective date of
termination.

    


    3.           Counterparts.
This Amendment may be executed in any number of separate counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument. Facsimile counterpart signatures to this Amendment
shall be acceptable and binding.

    


    4.           Applicable
Law. This Amendment shall he governed by and construed in accordance with
the laws of Switzerland without regard to principles of conflicts of
law.

    


    5.           Dispute
Resolution. All disputes arising out of or in connection with this
Amendment shall be resolved by the ordinary courts of Zurich, Switzerland,
without limiting the right of recourse.

    


    6.           No Other
Amendments. Except as expressly set forth herein, the License Agreement
remains in full force and effect in accordance with its terms and nothing
contained herein shall be deemed to be a waiver, amendment, modification or
other change of any term, condition or provision of the License Agreement. 
In the event of any conflict between the terms of this Amendment and any other
terms in the License Agreement, the terms of this Amendment shall
govern.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    7.           Effectiveness.
This Amendment shall become effective immediately upon the date
hereof.

    


    8.           References
to the License Agreement. From and after the date hereof, all references
in the License Agreement and any other documents to the License Agreement shall
be deemed to be references to the License Agreement after giving effect to this
Amendment.

    


    * * *
*


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    IN WITNESS WHEREOF, the
parties hereto have executed this Amendment No. 5 to Exclusive License Agreement
as of the date first written above.

    


    
      
        	
                By:

              	
                /s/ D. Slagel

              	 
      	
                By:

              	
                /s/ Russell H. Ellison

              
	 
      	
                Name:  D.
      Slagel

              	 
      	
                Name:  Chief
      Executive Officer

              
	 
      	
                Title:
      PRESIDENT

              	 
      	
                Title:  Russell
      H. Ellison

              


      

    

    

      
        
           


        

        
           


          
            

          

        

        
           


        

      



    Warrant
No.  ___ (CS-2010)

    


    EXHIBIT
A

    


    FORM OF
WARRANT

    


    VENTRUS
BIOSCIENCES, INC.

    COMMON
STOCK WARRANT

    


    As
partial consideration for Amendment No. 6 to the Exclusive License Agreement
between the parties, this certifies that S.L.A. Pharma AG (the “Holder”), its
designees or permitted assigns, subject to the terms and conditions set forth
herein, at any time after the Commencement Date and prior to the Expiration Date
(as such terms are defined below), is entitled to purchase from Ventrus
Biosciences, Inc., a Delaware corporation (the “Company”), 168,700 fully-paid and
non-assessable shares (subject to adjustment as provided herein) (the “Warrant Shares”) of
the Company’s Common Stock, $0.001 par value per share (the “Common Stock”), upon
surrender to the Company at its principal office (or at such other location as
the Company may advise the Holder in writing) of this Warrant properly endorsed
with the Form of Subscription attached hereto duly completed and signed and upon
payment of the aggregate Exercise Price (as defined below) for the number of
Warrant Shares for which this Warrant is being exercised determined in
accordance with the provisions hereof.  The exercise price (the “Exercise Price”) per
Warrant Share issuable pursuant to this Common Stock Warrant shall be equal to
$0.10 per share.

     

    This
Warrant is issued subject to the following terms and conditions:

     

    1.           Exercise, Issuance of
Certificates.  The Holder may exercise this Warrant, at any time or
from time to time, during the period (a) commencing at 5:00 p.m. (Eastern Time)
on August __,
2010 (the “Commencement Date”),
and (b) expiring at 5:00 p.m. (Eastern Time) on August __, 2013 (the
“Expiration
Date”).  The Holder may exercise this Warrant on or prior to the
Expiration Date for all or any part of the Warrant Shares (but not for a
fraction of a share) that may be purchased hereunder, as that number may be
adjusted pursuant to Section 3 of this Warrant.  The Company agrees that
the Warrant Shares purchased under this Warrant shall be and are deemed to be
issued to the Holder hereof as the record owner of such Warrant Shares as of the
close of business on the date on which this Warrant shall have been surrendered,
properly endorsed, the completed and executed Form of Subscription delivered,
and payment made for such Warrant Shares (such date, a “Date of
Exercise”).  Certificates for the Warrant Shares so purchased,
together with any other securities or property to which the Holder hereof is
entitled upon such exercise, shall be delivered to the Holder hereof by the
Company at the Company’s expense as soon as practicable after the rights
represented by this Warrant have been so exercised, but in any event not later
than ten (10) business days following the Date of Exercise.  In case of a
purchase of less than all the Warrant Shares which may be purchased under this
Warrant, the Company shall cancel this Warrant and execute and deliver to the
Holder hereof within a reasonable time a new Warrant or Warrants of like tenor
for the balance of the Warrant Shares purchasable under the Warrant surrendered
upon such purchase.  Each stock certificate so delivered shall be
registered in the name of such Holder and issued with a legend in substantially
the form of the legend placed below on this Warrant.

     

    (a)           The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same.  Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of the
Warrant  as required pursuant to the terms hereof.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (b)           Payment of Exercise
Price. The Holder shall pay the Exercise Price by delivering immediately
available funds to the Company.

     

    2.           Shares to be Fully Paid;
Reservation of Shares.  The Company covenants and agrees that all
Warrant Shares will, upon issuance and payment of the applicable Exercise Price,
be duly authorized, validly issued, fully paid and nonassessable, and free of
all preemptive rights, liens and encumbrances, except for restrictions on
transfer provided for herein.  The Company shall at all times reserve and
keep available out of its authorized and unissued Common Stock, solely for the
purpose of providing for the exercise of the rights to purchase all Warrant
Shares granted pursuant to this Warrant, such number of shares of Common Stock
as shall, from time to time, be sufficient therefor.

     

    3.           Adjustment of Exercise Price
and Number of Shares.  The Exercise Price and the total number of
Warrant Shares shall be subject to adjustment from time to time upon the
occurrence of certain events described in this Section 3.

     

    (a)           Subdivision or Combination
of Stock.  In the event the outstanding shares of the Company’s
Common Stock shall be increased by a stock dividend payable in Common Stock,
stock split, subdivision, or other similar transaction occurring after the date
hereof into a greater number of shares of Common Stock, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately reduced
and the number of Warrant Shares issuable hereunder proportionately
increased.  Conversely, in the event the outstanding shares of the
Company’s Common Stock shall be decreased by reverse stock split, combination,
consolidation, or other similar transaction occurring after the date hereof into
a lesser number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the
number of Warrant Shares issuable hereunder proportionately
decreased.

     

    (b)           Reclassification. 
If any reclassification of the capital stock of the Company or any
reorganization, consolidation, merger, or any sale, lease, license, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all, of the business and/or assets of the Company (the “Reclassification
Events”) shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, or other assets or property,
then, as a condition of such Reclassification Event, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter have the
right to purchase and receive (in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby) such shares of stock, securities, or other assets
or property as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Common Stock equal to the number of shares
of such stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby.  In any Reclassification Event,
appropriate provision shall be made with respect to the rights and interests of
the Holder of this Warrant to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Exercise Price and of the
number of Warrant Shares), shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities, or assets thereafter deliverable
upon the exercise hereof.

     

    (c)           Notice of
Adjustment.  Upon any adjustment of the Exercise Price or any
increase or decrease in the number of Warrant Shares, the Company shall give
written notice thereof, by first class mail postage prepaid, addressed to the
registered Holder of this Warrant at the address of such Holder as shown on the
books of the Company.  The notice shall be prepared and signed by the
Company’s Chief Financial Officer and shall state the Exercise Price resulting
from such adjustment and the increase or decrease, if any, in the number of
shares purchasable at such price upon the exercise of this Warrant, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    4.           No Voting or Dividend
Rights.  Nothing contained in this Warrant shall be construed as
conferring upon the holder hereof the right to vote or to consent to receive
notice as a stockholder of the Company on any other matters or any rights
whatsoever as a shareholder of the Company.  No dividends or interest shall
be payable or accrued in respect of this Warrant or the interest represented
hereby or the shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.

     

    5.           Compliance with the
Act. The Holder of this Warrant, by acceptance hereof, agrees that this
Warrant is being acquired for its own account and not for any other person or
persons, for investment purposes and that it will not offer, sell, or otherwise
dispose of this Warrant except under circumstances which will not result in a
violation of the Act or any applicable state securities laws.

     

    6.           Limited
Transferability.  The Holder represents that by accepting this
Warrant it understands that this Warrant and any securities obtainable upon
exercise of this Warrant have not been registered for sale under Federal or
state securities laws and are being offered and sold to the Holder pursuant to
one or more exemptions from the registration requirements of such securities
laws.  In the absence of an effective registration of such securities or an
exemption therefrom, any certificates for such securities shall bear the legend
set forth on the first page hereof.  The Holder understands that it must
bear the economic risk of its investment in this Warrant and any securities
obtainable upon exercise of this Warrant for an indefinite period of time, as
this Warrant and such securities have not been registered under Federal or state
securities laws and therefore cannot be sold unless subsequently registered
under such laws, unless an exemption from such registration is available. THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR
UNDER THE SECURITIES LAWS OF ANY STATE.  THIS WARRANT IS SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.  THE ISSUER OF THIS
WARRANT MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

     

    7.           Amendment, Waiver,
etc.  Except as expressly provided herein, neither this Warrant
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.

     

    8.           Notices.  Any
notice, request, or other document required or permitted to be given or
delivered to the Holder hereof or the Company shall be delivered as set forth in
the Exclusive License Agreement.

     

    9.           Governing
Law.  This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York without regard to the conflicts of laws provisions
thereof.

     

    10.         Lost or Stolen
Warrant.  Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation,
upon surrender and cancellation of such Warrant, the Company, at its expense,
will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    11.         Fractional
Shares.  No fractional shares shall be issued upon exercise of
this Warrant.  The Company shall, in lieu of issuing any fractional
share, pay the Holder entitled to such fraction a sum in cash equal to such
fraction (calculated to the nearest 1/100th of a share) multiplied by the then
effective Exercise Price on the date the Form of Subscription is received by the
Company.

     

    12.         Successors and
Assigns.  This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the successors and assigns of the Holder.  The provisions of this
Warrant are intended to be for the benefit of all Holders from time to time of
this Warrant, and shall be enforceable by any such Holder.

     

    13.         Severability of
Provisions. In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
officer, thereunto duly authorized as of this ____ of August 2010.

    


    
      
        
          	 
      	
                  VENTRUS
      BIOSCIENCES, INC.

                
	 
      	 
      
	 
      	
                  By:

                	 
      
	 
      	
                  Name:
      Dr. Russell Ellison

                
	 
      	
                  Title:
      CEO

                


        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    FORM
OF SUBSCRIPTION

     

    (To be
signed only upon exercise of Warrant)

     

    To:           Ventrus
Biosciences, Inc.

     

    The
undersigned, the holder of the attached Common Stock Warrant, hereby elects to
exercise the purchase right represented by such Warrant for, and to purchase
thereunder, _________________ shares of Common Stock of Ventrus Biosciences,
Inc. and such
holder herewith makes payment of $_________ therefor.

     

    The
undersigned requests that certificates for such shares be issued in the name of,
and delivered to:
__________________________________________________________________________________ whose address is:
______________________________________________________________________.

     

    
      
        
          
            
              
                
                  
                    
                      	
                              DATED:   

                            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                              (Signature
      must conform in all respects to name of

                            
	 
      	 
      	 
      	
                              Holder
      as specified on the face of the Warrant)

                            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                              Name:   

                            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                              Title: