Exhibit 10.74
TERMINATION
AGREEMENT
This agreement for
the termination of the “ Supply Agreement”
between Anesiva, Inc and PowderMed, Ltd (the “Parties”)
(originally the Supply Agreement between AlgoRx Pharmaceuticals,
Inc. and PowderJect Technologies Ltd.) dated March 22
nd
, 2002 (as amended)
is made and entered into as of the 18 th day of December, 2008 (the
“Effective Date”).
WHEREAS, Anesiva and PowderMed are
parties to a Supply Agreement (originally the Supply Agreement
between AlgoRx Pharmaceuticals, Inc and PowderJect Technologies
Ltd.) dated March 22, 2002 (as amended) (“the
Agreement”);
WHEREAS, PowderMed and BOC are
parties to a Services, Manufacture and Supply Agreement dated
February 21, 2003 (the “SMSA”);
WHEREAS, PowderMed currently
supplies certain gas microcylinders to Anesiva for the manufacture
of certain of Anesiva’s products, in particular the product
known as Zingo™;
WHEREAS, Anesiva has informed
PowderMed that it will no longer produce and commercialize the
product Zingo™ and has asked PowderMed to immediately cease
the supply of gas microcylinders as provided under the terms of the
Agreement;
WHEREAS, PowderMed and Anesiva
desire to effect the termination of the Agreement and the SMSA
under certain conditions mutually agreed upon and detailed
herein.
NOW, THEREFORE, the Parties hereto
agree as follows:
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1.
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The Agreement
is hereby terminated as of the Effective Date.
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2.
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Upon
termination of the Agreement, POWDERMED will forego its ongoing
right to the 5% royalty payment under section 3.1 of the License
Agreement dated March 22, 2002 (as amended) between the
Parties.
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3.
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POWDERMED will
cause the SMSA to be terminated, and upon termination of the SMSA,
POWDERMED will grant ANESIVA a non-exclusive, worldwide,
royalty-free sublicense (with rights to further sublicenses upon
POWDERMED’s prior consent) under Intellectual Property Rights
in the Gas Supply System, that becomes licensed to POWDERMED by BOC
or its Affiliates pursuant to the SMSA at any time prior to or
after the effective date of termination of the BOC SMSA, to the
extent necessary to manufacture and/or have manufactured gas
microcylinders and/or devices containing gas
microcylinders.
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4.
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Upon termination of the
Agreement, POWDERMED will forego the existing financial commitment
of ANESIVA for the 2 nd , 3 rd and 4 th quarters of 2008 purchase orders
which were already invoiced or currently in the process of being
invoiced to ANESIVA (invoice 1000003524 for the amount of
$446,515.20 to cover order 6891 and invoice 1000003541 for the
amount of $852,028.80 to cover orders 7445, 7954, together with the
royalty payment agreed for the amount of $6,000).
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5.
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ANESIVA will
provide POWDERMED, within 30 days of the Effective date, a
notification indicating whether or not ANESIVA would like to have
the equipment used in
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