Exhibit
10.8


 


Biovail
Laboratories International SRL

Welches, Christ Church

Barbados, West Indies BB17154


 


May 14, 2009


 


SmithKline Beecham
Corporation


5 Moore Drive


Research Triangle Park, NC
27709


 


Re:  Fifth Amendment to the Distribution Rights
Agreement


 


Dear Sir/Madam:


 


This letter (the “Fifth
Amendment”), to be effective as of the date set forth above, is in
reference to that certain Amended and Restated Distribution Rights Agreement,
effective as of October 26, 2001, as amended by the First Amendment to the
Amended and Restated Distribution Rights Agreement, effective as of May 1,
2005, the Second Amendment to the Amended and Restated Distribution Rights
Agreement, effective as of October 12, 2005, the Third Amendment to the
Amended and Restated Distribution Rights Agreement, effective as of December 18,
2006, and the Fourth Amendment to the Amended and Restated Distribution Rights
Agreement, effective as of November 21, 2008 (collectively, the “Zovirax
Agreement”), between Biovail Laboratories International SRL (“Biovail”)
and SmithKline Beecham Corporation (“GSK”). Capitalized terms used herein but
not otherwise defined shall have the meanings set forth in the Zovirax
Agreement.


 


WHEREAS, Biovail and
GSK have entered into that certain Asset Purchase Agreement (“Asset Purchase
Agreement”), dated May 5, 2009, whereby Biovail purchased certain
assets of GSK related to Wellbutrin XL® in the United States.


 


NOW, THEREFORE, in
consideration of Biovail entering into the Asset Purchase Agreement and other
good and valuable consideration, the receipt and legal sufficiency of which are
mutually acknowledged, Biovail and GSK hereby agree to amend the Zovirax
Agreement as follows:


 


1.                                       Amendments to the
Zovirax Agreement.


 


(a)                                  Sections 5.01(c),
5.01(d), 5.01(f), 5.02(c) and 5.02(d) of the Zovirax Agreement are
hereby deleted in their entirety and shall have no further force or effect.


 


(b)                                 Section 5.02(b) of
the Zovirax Agreement is hereby amended and restated in its entirety as
follows:


 


“(b) Minimum
Purchase Requirements — There will be no minimum purchase requirements under
this Agreement.”


 


(c)                                  The following
definitions of the Zovirax Agreement are hereby deleted in their entirety:


 

















 


“Additional Rights
Lump Sum Payment”


“Additional Rights
Payment”


“Annual Minimum
Purchase Requirements”


“Fixed Annual Minimum
Purchase Requirement”


“Variable Additional
Rights Payment”


“Variable Annual
Minimum Purchase Requirement”


 


2.                                       Miscellaneous.


 


(a)                                  Amendment.  This Fifth Amendment may not be amended,
terminated, waived or altered except by written instrument executed by Biovail
and GSK, nor shall any waiver be effective against any party unless in writing
and executed by such party.


 


(b)                                 Full Force and
Effect.  Except as expressly amended by
this Fifth Amendment, all terms and conditions of the Zovirax Agreement shall
remain in full force and effect except that each reference to the “Agreement”
or words of like import in the Agreement will mean and be a reference to the
Agreement as amended by this Fifth Amendment.


 


(c)                                  Governing Law.  This Fifth Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its conflicts of laws principles.


 


(d)                                 Conflict.  In all events, the terms and provisions of
this Fifth Amendment shall be enforceable notwithstanding any conflicting term
or provision set forth in the Zovirax Agreement. In the event of any conflict
between any term or provision of this Fifth Amendment and any term or provision
set forth in the Zovirax Agreement, such term or provision of this Fifth
Amendment shall prevail over such term or provision set forth in the Zovirax
Agreement.


 


(e)                                  Counterparts.  This Fifth Amendment may be executed in
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


(f)                                    No Agency.  Nothing contained in this Fifth Amendment
shall be deemed to imply or constitute either party as the agent or
representative of the other party, or both parties as joint venturers or
partners for any purpose.


 


(g)                                 Validity.  If a court of competent jurisdiction holds
any provision hereof invalid or unenforceable, such invalidity shall not affect
the validity or operation of any other provision and such invalid provision
shall be deemed to be severed from this Fifth Amendment.


 


[NO
FURTHER TEXT ON THIS PAGE]


 


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Please indicate your
acceptance of the terms of this Fifth Amendment to the Amended and Restated
Distribution Rights Agreement by returning a signed copy to the undersigned.


 


 


	
   

  	
  BIOVAIL LABORATORIES INTERNATIONAL SRL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michel Chouinard

  
	
   

  	
  Name: Michel Chouinard

  
	
   

  	
  Title: Chief Operating Officer

  



 


 


ACCEPTED AND AGREED BY:


 


	
  SMITHKLINE BEECHAM CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ William J. Mosher

  	
   

  
	
   

  	
  Name: William J. Mosher

  	
   

  
	
   

  	
  Title: Vice President & Secretary

  	
   

  
	
   

  	
  Date:

  	
   

  



 


Signature
Page to Fifth Amendment to the Distribution Rights Agreement


 


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