Exhibit 10.2
Mutual Release
This Mutual Release (the “
Mutual Release ”) is entered into as of July 3,
2008 (the “ Effective Date ”), by and between
Massachusetts Biologic Laboratories of the University of
Massachusetts Medical School (“ MBL ”) and
Akorn, Inc. (“ Akorn ”) (each a “
Party ” and together the “ Parties
”).
Recitals
WHEREAS , MBL as manufacturer
and Akorn as distributor entered into an Exclusive Distribution
Agreement for Tetanus-Diphtheria vaccine (“Td vaccine”)
on March 22, 2007 (the “ Exclusive Distribution
Agreement ”);
WHEREAS , Akorn to date has
not picked up shipments to fulfill Akorn’s purchase
obligations through June 30, 2008;
WHEREAS , Akorn has requested
that its obligations to take delivery of Td vaccine under the
Agreement be modified and reduced for the remainder of the
Agreement’s term;
WHEREAS , a dispute arose
between the Parties whereby, among other claims, (a) MBL
claimed that Akorn is or would be in breach of the Exclusive
Distribution Agreement, and (b) Akorn claimed that it was
mislead concerning the market for Td vaccine (collectively, the
“ Disputes ”);
WHEREAS , the Parties
mediated their Disputes and related issues on June 26, 2008
with the Hon. Charles B. Swartwood III of JAMS;
WHEREAS , the Parties have
resolved all material aspects of their Disputes and related issues,
and have memorialized this resolution in the agreement entitled
“MBL-Akorn Binding Term Sheet — July 3,
2008” (the “ Term Sheet ”); and
WHEREAS , as provided in
sections 8 and 10 of the Term Sheet, the Parties wish to embody the
rights and obligations set out in the Term Sheet (a) in a more
formal mutual release, as set out below, and (b) in a more
formal amendment to the Exclusive Distribution Agreement, which is
being executed simultaneously with this Mutual Release (the “
Amendment ”);
NOW, THEREFORE , the Parties
agree as follows:
Release
1
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1.1 |
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“ Akorn Releasees ” means Akorn and all of
its present and former officers, directors, members, managers,
shareholders, trustees, partners, subsidiaries, affiliates, parent
companies, agents, representatives, insurers, employees, and
attorneys and all of their respective predecessors, successors,
heirs, executors, administrators, and assigns. |
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1.2 |
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“ Akorn Releasors ” means Akorn and all of
its present and former officers, directors, members, managers,
shareholders, trustees, partners, subsidiaries, affiliates, parent
companies, agents, insurers, representatives, employees, and
attorneys and all of their respective predecessors, successors,
heirs, executors, administrators, and assigns. |
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1.3 |
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“ MBL Releasees ” means MBL and all of its
present and former officers, directors, members, managers,
shareholders, trustees, partners, subsidiaries, affiliates, parent
companies, agents, representatives, insurers, employees, and
attorneys and all of their respective predecessors, successors,
heirs, executors, administrators, and assigns. |
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1.4 |
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“ MBL Releasors ” means MBL and all of its
present and former officers, directors, members, managers,
shareholders, trustees, partners, subsidiaries, affiliates, parent
companies, agents, insurers, representatives, employees, and
attorneys and all of their respective predecessors, successors,
heirs, executors, administrators, and assigns. |
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1.5 |
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“ Performance Obligation ” means an
obligation to perform under a contract. By way of example and not
by way of limitation, the term “Performance Obligation”
excludes non-contractual duties, such as duties in tort. |
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MBL Specific Release . In consideration of Akorn’s
release under Section 3 (Akorn Specific Release), the MBL
Releasors hereby fully and forever release, remise, and forever
discharge the Akorn Releasees of and from all claims, demands,
disputes, or objections based in contract, tort, and other theories
(contingent, accrued, mature, direct, derivative, subrogated,
personal, assigned, discovered, undiscovered, inchoate, or
otherwise), arising |
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