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EXHIBIT 10.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is entered into as of
the
19th day of November 2008, by and between Ivivi Technologies, Inc.,
a New Jersey
corporation ("Ivivi"), and Allergan Sales, LLC, a Delaware limited
liability
company and successor in interest to Inamed Medical Products
Corporation, and
its wholly-owned subsidiary, Allergan USA, Inc., a Delaware
corporation
(collectively, "Allergan").
W I T N E S S E T H:
WHEREAS, Ivivi and Inamed Medical Products Corporation
previously
entered into an Exclusive Distribution Agreement, dated as of
November 9, 2006,
pursuant to which, among other things, Ivivi granted Allergan
certain rights to
distribute and sell the pulsed electromagnetic field generating
device commonly
known as SofPulse(R) (the "Distribution Agreement"); and
WHEREAS, each of Ivivi and Allergan desires to terminate the
Distribution Agreement, upon and subject to the terms and
conditions specified
herein.
NOW, THEREFORE, in consideration of the conditions and mutual
covenants
set forth herein, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties to this
Agreement
hereby agree as follows:
1. TERMINATION OF DISTRIBUTION AGREEMENT. Effective as of the date
of
this Agreement, the Distribution Agreement is hereby terminated in
all respects
and except as set forth in the immediately succeeding sentence, the
Distribution
Agreement shall be null and void and of no effect whatsoever, and
no party to
the Distribution Agreement shall have any further right, liability,
or
obligation thereunder. Notwithstanding the termination of the
Distribution
Agreement, the provisions of Article 1 (Definitions) of the
Distribution
Agreement shall survive the termination of the Distribution
Agreement solely for
purposes of this Agreement; the provisions of Article 12
(Confidential
Information) and Section 16.13 (Press Releases and Announcements)
of the
Distribution Agreement shall survive the termination of the
Distribution in
accordance with Section 4 of this Agreement; the provisions of
Section 7.3
(Technical Support) of the Distribution Agreement shall survive the
termination
of the Distribution Agreement until the first anniversary of the
date hereof;
Article 8 (Product Warranties) of the Distribution Agreement shall
survive the
termination of the Distribution Agreement; and the provisions of
certain
sections of Article 14 (Indemnification; Insurance Requirements) of
the
Distribution Agreement shall survive the termination of the
Distribution
Agreement in accordance with Section 6 of this Agreement.
Capitalized terms
used, but not defined herein, shall have the meanings ascribed to
them in the
Distribution Agreement.
2. REPURCHASE OF INVENTORY.
(a) Allergan hereby agrees to provide the Product in its
possession to Ivivi, estimated and identified on SCHEDULE A
attached hereto
(collectively, the "INVENTORY") in Irvine, California, which
Product was
initially delivered to Allergan by Ivivi. Promptly following the
execution and
delivery of this Agreement, Allergan shall return to Ivivi the
Inventory in
exchange for $450,000 (the "INVENTORY REPURCHASE PRICE") payable in
immediately
available funds, as more specifically set forth in this Section
2.
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(b) Within five (5) business days of the date of this
Agreement, Ivivi shall pay the Inventory Repurchase Price in
immediately
available funds by wire transfer to the bank account designated in
writing by
Allergan. Within 20 business days of the date of this Agreement,
Allergan shall
ship the Inventory from Irvine, California (the "ALLERGAN SHIPPING
POINT") to
the location designated in writing by Ivivi (the "IVIVI DESTINATION
POINT").
Ivivi shall pay the reasonable and customary costs of such shipping
and the risk
of loss for the Inventory shall pass to Ivivi when the Inventory
leaves the
Allergan Shipping Point. The parties shall cooperate to obtain
commercially
reasonable rates for such shipping costs. All Inventory delivered
by Allergan to
Ivivi shall be suitably packed for surface or air shipment, in
Ivivi's sole
discretion, marked for shipment to the Ivivi Destination Point.
3. THIRD-PARTY DISTRIBUTORS. Ivivi hereby agrees that during the
period
commencing on the date hereof and ending on the 180th day
immediately following
the date hereof, Ivivi shall not enter into a distribution
agreement with any
third-party distributor for the distribution by such distributor of
the Product
in the Field in the United States.
4. CONFIDENTIAL INFORMATION; RELEASE OF ESCROW DEPOSIT.
(a) Notwithstanding anything contained herein to the contrary,
the provisions of Article 12 (Confidential Information) and Section
16.13 (Press
Releases and Announcements) of the Distribution Agreement shall
survive the
termination of the Distribution Agreement until the fifth
anniversary of the
date hereof, and each of Ivivi and Allergan, on behalf of
themselves and their
respective directors, officers, affiliates, employees, and agents,
hereby ratify
and adopt and agree to continue to comply with provisions contained
in Article
12 (Confidential Information) and Section 16.13 (Press Releases
and
Announcements) of the Distribution Agreement, as though such
provisions were
fully incorporated herein. Promptly following the execution and
delivery of this
Agreement, each of Ivivi and Allergan shall deliver to the other
party or
destroy all Confidential Information of the other party, including,
without
limitation, materials, samples and documents of the other party,
subject to
either party retaining a copy of the other party's Confidential
Information
solely as may be required by law.
(b) Promptly following the execution and delivery of this
Agreement, the Escrow Deposit shall be released to Ivivi and the
parties hereto
shall execute any and all documents, consents and instruments and
take any and
all actions and do any and all things reasonably necessary and
appropriate to
effectuate such release.
5. INTELLECTUAL PROPERTY.
(a) The parties hereto hereby acknowledge and agree that
without limiting or restricting in any way any of Ivivi's right,
title and
interest in and to any of its Intellectual Property whatsoever, the
Product, the
Patents and the Ivivi Intellectual Property, including all
derivatives,
Improvements and documentation thereof, that were solely conceived,
fixed in a
tangible medium of expression or otherwise developed, invented or
reduced to
practice by Ivivi or its Affiliates during the term of the
Distribution
Agreement are the proprietary property of Ivivi or its licensors,
and exclusive
title to such property shall remain with Ivivi or its licensors,
after
termination of the Distribution Agreement.
(b) The parties hereto hereby acknowledge and agree that
without limiting or restricting in any way any of Allergan's right,
title and
interest in and to any of its Intellectual Property whatsoever,
Allergan shall
retain sole title to, and ownership of, all Allergan products,
Allergan's
Intellectual Property and improvements thereon, all derivative
works of Allergan
products, Allergan's Intellectual Property and improvements and all
proprietary
rights therein, that were solely conceived, fixed in a tangible
medium of
expression or otherwise developed, invented or reduced to practice
by Allergan
or its Affiliates during and after termination of the Distribution
Agreement.
The parties agree that Allergan shall retain sole ownership of
information
regarding customers, distributors, sublicensees and subdistributors
of the
Product acquired under the Distribution Agreement, which
information shall be
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treated as confidential pursuant to Article 12 of the Distribution
Agreement
(which shall survive the termination of the Distribution Agreement
in accordance
with Section 4). The parties further agree that works that were
created,
marketed or bundled with the Product by Allergan, during the term
of the
Agreement, which works do not infringe the Patents, are the
proprietary property
of Allergan or its licensors, and exclusive title to such property
shall remain
with Allergan or its licensors, after termination of the
Distribution Agreement.
(c) The parties hereto hereby acknowledge and agree that from
and after the date hereof, Ivivi shall not use any of (i)
Allergan's name,
subject to Section 16.13, (ii) Allergan's marks or (iii) sales
and/or
promotional materials conceived or developed by Allergan or its
Affiliates or
agents in connection with the Distribution Agreement.
6. INDEMNIFICATION. Notwithstanding anything to the contrary
contained
herein, the provisions of Sections 14.1, 14.3, 14.4, 14.6, 14.7 and
14.8 of the
Distribution Agreement shall survive the termination of the
Distribution
Agreement; PROVIDED, HOWEVER, that Ivivi's obligation to indemnify,
defend and
hold harmless the Allergan Indemnified Parties for any claims,
losses, damages,
liabilities, causes of action, suits, costs and expenses incurred
by the
Allergan Indemnified Parties under Section 14.1 of th
