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 ***.
This Termination
Agreement (“Termination Agreement”) is dated as of
February 24, 2006, by and between Noven Pharmaceuticals, Inc.,
a Delaware corporation (“Noven”), and Endo
Pharmaceuticals, Inc., a Delaware corporation (“Endo”).
Noven and Endo are collectively referred to as
“Parties” and individually as
“Party.”
WHEREAS, the
Parties entered into an agreement dated February 25, 2004
(“License Agreement”) related to the exclusive
distribution of certain fentanyl transdermal patch products
(“Licensed Product”);
WHEREAS, the
Parties entered into a supply agreement dated as of
February 25, 2004 ( “Supply Agreement”) and an
intercompany quality control agreement dated as of
February 25, 2004 ( “Quality Agreement”) relating
to the Licensed Product;
WHEREAS, the
Parties further agreed that they would work together with respect
to certain additional products using Noven’s transdermal
patch technology (“Additional Products”), as more
particularly described in the License Agreement;
WHEREAS, the Food
& Drug Administration (“FDA”) advised Noven on
September 27, 2005 that the FDA would not approve the Licensed
Product based on the FDA’s assessment of potential safety
concerns related to the higher drug content in the Licensed
Product;
WHEREAS, the
Parties mutually desire to terminate the Supply Agreement and
Quality Control Agreement and wish to terminate the License
Agreement with respect to the Licensed Product as set forth below;
and
WHEREAS, the
Parties desire that the License Agreement survive with respect to
the Additional Products, with certain modifications as described
herein; and
WHEREAS, this
Agreement memorializes the understandings of the parties with
respect to the subject matter hereof as of December 31, 2005
(the “Effective Date”).
1
NOW, THEREFORE, in
consideration of the foregoing premises, and of the mutual promises
and covenants contained in the Termination Agreement, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Noven and Endo agree as
follows:
Capitalized terms
used herein shall have the meaning as provided in the License
Agreement, unless as otherwise set forth below.
Article 2. Termination of Rights and
Obligations with Respect to Licensed Product.
2.1 Generally. The
Parties mutually agree to, and hereby do, terminate in their
entirety the Supply Agreement and the Quality Agreement, and all of
the Parties’ respective rights and obligations thereunder, if
any, shall terminate as of the Effective Date. Except as explicitly
provided in this Termination Agreement, all of the Parties’
respective rights and obligations with respect to Licensed Product
under the License Agreement, if any, shall terminate; provided,
that all of the Parties’ rights and obligations under the
License Agreement with respect to any Additional Product(s) shall
continue. By way of clarification of the preceding sentence, on and
after the date hereof Section 13.03 of the License Agreement
(including Section 13.03(b) with respect to the Licensed
Products) shall survive a
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