Exhibit
10.9


 


SIXTH
AMENDMENT

TO THE

AMENDED AND RESTATED DISTRIBUTION RIGHTS AGREEMENT


 


THIS
SIXTH AMENDMENT TO THE AMENDED AND RESTATED DISTRIBUTION RIGHTS AGREEMENT (the “Sixth
Amendment”) is made effective as of this 16th day of September, 2009 by and between Biovail
Laboratories International SRL, a Barbados International Society with
Restricted Liability and having a principal place of business at Welches,
Christ Church, BB17154, Barbados, West Indies (“Biovail”) and SmithKline
Beecham Corporation, a GlaxoSmithKline company, a corporation duly organized
and existing under the applicable laws of the Commonwealth of Pennsylvania
having a principal place of business at One Franklin Plaza, Philadelphia, PA
19102 (“GSK”). GSK and Biovail are collectively referred to in this Sixth
Amendment as “Parties” and individually as a “Party”.


 


WHEREAS,
GSK and Biovail are parties to an Amended and Restated Distribution Rights
Agreement, effective as of October 26, 2001, as amended on May 1,
2005, October 12, 2005, December 18, 2006, November 21, 2008 and
May 14, 2009 (collectively, the “Agreement”);


 


WHEREAS,
the Parties desire to amend the Agreement to allow for Biovail or its Affiliate
to market, promote, advertise, detail, sell and distribute a 30 gram tube size
of Zoviraxe Ointment in the Territory in accordance with the terms of the
Agreement.


 


NOW
THEREFORE, in consideration of the promises, representations, warranties,
covenants and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto, intending to be legally bound
hereby, agree to amend the Agreement as follows:


 


1.                                       The following
shall be added as the last entry under the list of “Trade Product (tubes)” set
forth in Exhibit 1.01A:


 


“Zovirax Ointment 30G     [NDC # to be
provided]     I tube”


 


2.                                       The reference to “30
gram Tube” shall be added as the last entry under the heading “Zovirax Ointment”
set forth in Exhibit 5.05 and the corresponding order quantity amount of “15,250”
shall be added as the last entry under the corresponding heading “Minimum Order
Quantity” in Exhibit 5.05.”


 


3.                                       For clarity, the
purchase price to be paid by Biovail for the 30 gram tube of Zovirax Ointment
will be as set forth in Sections 5.06(a)(ii) and 5.06(a)(iii) of the
Agreement, as applicable.


 


4.                                       All capitalized
terms not otherwise defined in this Sixth Amendment will have meanings ascribed
to them in the Agreement.


 


5.                                       Except as
otherwise amended by the terms of this Sixth Amendment, the provisions of the
Agreement are unchanged, remain in full force and effect and


 

















 


are hereby ratified and
confirmed except that each reference to “Agreement” or words of like import in
the Agreement will mean and be a reference to the Agreement as amended by this
Sixth Amendment.


 


6.                                       In all events,
the terms and provisions of this Sixth Amendment shall be enforceable
notwithstanding any conflicting term or provision set forth in the Agreement.
In the event of any conflict between any term or provision of this Sixth
Amendment and any term or provision set forth in the Agreement, such term or
provision of this Sixth Amendment shall prevail over such term or provision set
forth in the Agreement.


 


7.                                       This Sixth
Amendment will be construed, and the respective rights of the Parties
determined, according to the substantive law of New York notwithstanding the
provisions governing conflict of laws under such New York law to the contrary.


 


8.                                       This Sixth
Amendment may be executed in any number of counterparts, each of which will be
deemed an original but all of which together will constitute one and the same
document.


 


9.                                       Nothing contained
in this Sixth 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.


 


10.                                 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
Sixth Amendment.


 


[signatures
follow]


 


2

















 


IN WITNESS WHEREOF,
the Parties have executed this Sixth Amendment to the Amended and Restated
Distribution Agreement on the day and year first above written.


 


 




	
  SMITHKLINE BEECHAM CORPORATION

  d/b/a GLAXOSMITHKLINE

  	
   

  	
  BIOVAIL LABORATORIES

  INTERNATIONAL SRL

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Justin T. Huang

  	
   

  	
  By: 

  	
  /s/ Jean-Luc Martre

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name: 

  	
  Justin t. Huang

  	
   

  	
  Name: 

  	
  Jean-Luc Martre

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
  Assistant Secretary

  	
   

  	
  Title:  

  	
  VP Commercial Operations

  






 


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