CONFIDENTIAL TREATMENT REQUESTED
Exhibit 10.43.1
The confidential portions of this
exhibit have been filed separately with the Securities and Exchange
Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 of the Securities and Exchange Act of
1934 as amended. REDACTED PORTIONS OF THIS EXHIBIT ARE MARKED BY AN
***.
AGREEMENT TO TERMINATE
THE
DEVELOPMENT AND MARKETING
STRATEGIC
ALLIANCE AGREEMENT
This Agreement to Terminate the
Development and Marketing Strategic Alliance Agreement (this
“ Agreement ”) effective as of February 12,
2007 (the “ Effective Date ”) by and among Endo
Pharmaceuticals Inc., a corporation organized and existing under
the laws of Delaware, having offices located at 100 Endo Boulevard,
Chadds Ford, PA 19317 (“ Endo ”), SkyePharma,
Inc., a corporation organized and existing under the laws of the
State of California, having offices located at 10450 Science Center
Drive, San Diego, CA 92121 (“ Skye Inc .”), and
Jagotec AG, assignee of SkyePharma Canada, Inc., a corporation
organized and existing under the laws of Switzerland, having
offices located at Eptingerstasse 51, CH–4132 Muttenz,
Switzerland (“ Jagotec ”) (collectively, Skye
Inc. and Jagotec, “ SkyePharma ”). Each of Endo
and SkyePharma is referred to as a “ Party ” and
collectively, the “ Parties ”).
Whereas the Parties entered into the
Development and Marketing Strategic Alliance Agreement dated
December 31, 2002 (the “ License Agreement
”); and
Whereas the Parties desire to
provide for the termination of the License Agreement while ensuring
the continued commercial support of the DepoDur product under the
License Agreement leading up to such termination and a transition
of such product to Skye Inc.
In consideration of the foregoing
preliminary statements and the mutual covenants herein contained,
the Parties hereby agree as follows:
By mutual agreement of the Parties
as set forth herein, the License Agreement shall terminate in its
entirety on March 31, 2007 (the “ Termination
Date ”) with no further rights, liabilities or
obligations thereunder other than with respect to those terms set
forth in Sections 5.3 (Mode of Payment), 5.4 (Records Retention),
5.5 (Payment and Other Audits), 5.6 (Taxes), 6.6(a) (Ownership),
6.6(b) (Ownership), 7 (Adverse Reaction Reporting), 8
(Representations and Warranties and Covenants), 9 (Publication;
Confidentiality), 10 (Indemnification; Insurance), 11.10(a)
(Accrued Rights; Surviving Obligations), and 13 (Miscellaneous) of
the License Agreement.
From the Effective Date until the
Termination Date, Endo shall provide and/or continue to provide a
number of services and otherwise undertake activities relating to
the License Agreement, as outlined in this Agreement and the ACP
(as defined below) and as will be set forth in a transition
services agreement to be negotiated and entered into by the Parties
in good faith within thirty (30) days from the Effective Date
(the “ Transition Services Agreement ”). The
Transition Services Agreement will contain terms customarily found
in such agreement and terms generally similar to those set forth
herein and will provide that Endo shall use commercially reasonable
efforts to:
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Maintain and continue at levels
consistent with Annual Commercial Plan submitted to the JEC for
approval on December 11, 2006, a copy of which is attached to
this Agreement (the “ ACP ”), all US commercial
activities in support of DepoDur through March 31,
2007;
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Maintain and continue such
commercial activities consistent with the ACP, on a month-to-month
basis and at SkyePharma’s option, after the Termination Date
and until June 30,
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CONFIDENTIAL TREATMENT REQUESTED
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2007, given at least 30 days’
notice to Endo for such continuation, only to the extent Endo
and/or its current DepoDur service providers have the right to do
so under applicable law; and
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Within a reasonable period of
time after receiving a written request from by Skye Inc., support
and/or undertake the transition of certain Endo functions and
activities (including third party activities) to Skye Inc., useful
and necessary for Skye Inc. to assume commercial and related
responsibilities for DepoDur in the U.S.
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In return for Endo services and
activities as provided hereunder and in the Transition Services
Agreement and the mutual agreement of the Parties to terminate the
License Agreement, Skye Inc. shall pay Endo *** (inclusive of all
taxes and third party fees) for the period until March 31,
2007 and *** per month for any additional months of Endo performing
activity. Such payments are due and payable as follows:
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*** on Feb. 15, 2007 for the
period through February 28, 2007
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*** on March 15, 2007 for
the period through March 31, 2007
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If Skye Inc. provides written
notice to Endo that it wishes Endo to continue Endo activity beyond
March 31, 2007, *** on the 15 th
of each
month of subsequent Endo activity requested by Skye Inc. in
writing, starting April 15, 2007.
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Failure to pay such amounts when due
will result in Endo ceasing to perform the activities within seven
days thereafter, and if such failure to pay is prior to
March 31, 2007, the Termination Date shall occur on such
seventh day. All late payments shall bear interest at the rate of
18% per annum.
Until the Termination Date, Endo
shall also use commercially reasonable efforts to continue at
levels consistent with the ACP to provide (itself and/or through
its agents) all necessary functions to maintain commercial
availability of DepoDur until the Termination Date, including but
not limited to:
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customer service, invoicing and
payment processing;
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customer support services
(medical information, product complaints, receipt and routing to
SkyePharma of adverse event reports);
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processing of product returns and
product rebate requests; and
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field sales force support of
DepoDur through February 28, 2007.
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SkyePharma and Endo shall jointly
approve any public disclosures and communications to customers,
supply chain members and other interested parties, including the
investment community at large, regarding the reason(s) for the
transition activities and termination of the License Agreement,
unless such disclosure is required by law; provided however, that
notwithstanding the foregoing the Parties agree that disclosure of
the termination of the License Agree
