Exhibit 10.1
December 1, 2006
VIA FACSIMILE AND EXPRESS
COURIER
Mr. Philip Blake
President
Bayer Inc.
77 Belfield Road
Toronto, ON M9W 1G6
CANADA
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RE:
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Termination of Distribution
Agreement
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Dear Mr. Blake:
Reference is made to the
Distribution Agreement between Bayer Inc. (“Bayer”) and
Auxilium Pharmaceuticals, Inc. (“Auxilium”), entered
into on December 29, 2003 (the “Agreement”). This
letter agreement sets forth the terms and conditions upon which
Bayer and Auxilium have mutually agreed to terminate the Agreement.
All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Agreement. The
terms and conditions of the mutual termination are as
follows:
1. Effective upon the close of
business on December 4, 2006 (the “Termination
Date”), the Agreement is terminated and Bayer shall cease all
distribution activities related to the Product.
2. On or before December 22,
2006, at Bayer’s expense, Bayer shall return to Auxilium or
destroy all Confidential Information in its possession or control,
and deliver to Auxilium or destroy all Promotional Materials
related to the Product in its possession related to the
Product.
3. Except as to such rights, claims
or obligations as may be created by this letter agreement, Bayer
hereby releases and forever discharges Auxilium, any Affiliate, and
its and their present and former shareholders, officers, directors,
agents, employees, attorneys, successors, and assigns from any and
all debts, liabilities, obligations, promises, covenants,
contracts, endorsements, bonds, controversies, actions, causes of
action, judgments, damages, expenses, claims and demands of any
nature whatsoever, known or unknown, fixed or contingent, in law or
in equity, which Bayer had, or now has, or hereafter can, shall or
may have against Auxilium jointly, severally, or in the
alternative, for, or by reason of, any matter or cause whatsoever
arising from or related in any manner whatsoever to the Agreement.
Bayer agrees that it will not assert any claim against any third
party who might claim contribution or indemnity from Auxilium in
respect of any of the matters released hereby.
Mr. Philip Blake
December 1, 2006
4. Except as to such rights, claims
or obligations as may be created by this letter agreement, Auxilium
hereby releases and forever discharges Bayer, any Affiliate, and
its and their present and former shareholders, officers, directors,
agents, employees, attorneys, successors, and assigns from any and
all debts, liabilities, obligations, promises, covenants,
contracts, endorsements, bonds, controversies, actions,
causes
