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Exhibit
10.49.1
CONFIDENTIAL TREATMENT
REQUESTED
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
***.
TERMINATION
AGREEMENT
This Termination Agreement
(this “Termination”) is made and entered into by way of
deed on February 19, 2008, by Endo Pharmaceuticals Inc.
(“Endo”) and Vernalis Development Limited
(“Company”) and Vernalis plc
(“Parent”).
RECITALS
WHEREAS, Company, Endo and
Parent entered into that certain Loan Agreement, dated as of
July 14, 2004 (the “Loan Agreement”);
WHEREAS, in connection with
the Loan Agreement, Company and Endo entered into that certain
Security Deed, dated as of August 23, 2004 (the
“Security Agreement”);
WHEREAS, pursuant to the
Security Agreement, Company granted to Endo a security interest in
certain Collateral (as defined in the Security Agreement);
and
WHEREAS, the parties now wish
to accelerate the payment of the full amount outstanding under the
Loan Agreement and terminate the Loan Agreement, the Security
Agreement and Endo’s security interest in the
Collateral.
WHEREAS, it is the intention
of the parties that this document be executed as a deed.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and agreed, the parties agree as
follows:
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1. |
Payment by Company of the value outstanding under the Loan
Agreement shall be satisfied as follows: |
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(a) |
payment of seven million US Dollars (US$7,000,000) in cash
within five business days of the date hereof. |
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(b) |
payment of the balance shall be satisfied by way of a deemed
prepayment by Endo of certain future royalties on Net Sales of
Product in the Territory payable to Company as provided and defined
in the License Agreement dated July 14, 2004 between Endo and
Company (‘License Agreement’). |
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2. |
To give effect to payment by Company under paragraph 1
above: |
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2.1 |
Endo and Company shall enter into of even date
herewith: |
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(a) |
an amendment to the License Agreement in the form attached
hereto as Schedule 1 whereby, in recognition of the deemed
prepayment of certain future royalties as detailed in paragraph
1(b) above, Endo shall going forward only be required to pay
royalties to Company on the aggregate Net Sales of Product in the
US Territory which, during the Year in question, is equal to or
more than eighty-five million US Dollars (US$85,000,000) (all such
terms as defined in the License Agreement), and |
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(b)
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a letter agreement in the
form attached hereto as Schedule 2 terminating the agreement dated
1 st
July 2005 between Endo
and Company relating to the co-promotion of frovatriptan in the
U.S.A. (‘Letter Agreement’).
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2.2 |
Not later than five (5) Business Days (as defined in the
Loan Agreement) after the date hereof, Company shall make a payment
of seven million US Dollars (US$7,000,000 (the “Payoff
Amount”) to the bank account of Endo, details of which are
set forth in Schedule 3. |
The amendments to the License
Agreement and the Letter Agreement (as provided in paragraph 2.1
above), when signed, and the Payoff Amount, when received, will
constitute full and final settlement of (a) all principal,
interest, fees and other sums due under the Loan Agreement and
(b) all Secured Obligations (as defined in the Security
Agreement).
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3. |
Immediately following signature of the amendment to the License
Agreement, the Letter Agreement and receipt of the Payoff Amount by
Endo, |
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(a) |
the Loan Agreement and the Security Agreement, including
without limitation the Guarantee of Parent under clause 8 of the
Loan Agreement, will terminate; |
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(b) |
Endo’s security interest in the Collateral will terminate
and Endo will release any claim of right, title or interest
whatsoever in or to any of the Collateral; and |
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(c) |
Endo shall provide Company with such signed UCC Termination
Statements as may reasonably requested by Company to effect the
termination of any UCC Financing Statements in its favor in respect
of the Collateral. |
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4. |
Endo hereby irrevocably consents, upon signature of the
amendment to the License Agreement and receipt of the Payoff
Amount, to the Company filing a return form 403a at Companies House
in the United Kingdom to record the satisfaction in full and
discharge of the security interest in the Collateral granted by the
Security Agreement. |
2
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5. |
Each party hereto shall execute and deliver to any other party
hereto such other documents as may reasonably be requested to
evidence the termination of the Loan Agreement, the Security
Agreement and Endo’s security interest in the
Collateral. |
[SIGNATURE PAGE
FOLLOWS]
IN WITNESS WHEREOF, this
Termination is executed as a deed and has been delivered on the
first date written above.
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| EXECUTED by ENDO PHARMACEUTICALS INC,. |
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| acting
by |
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/s/ Charles A. Rowland
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[AGENT] |
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| and |
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/s/ Nancy J.
Wysenski
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[SECOND
AGENT] |
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| acting under the authority of that Company, in the presence
of: |
| </</tr> |
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