Exhibit 10.1
CERTAIN INFORMATION HAS BEEN OMITTED IN ACCORDANCE WITH ITEM 601(B)(10) OF REGULATION S-K BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. OMISSIONS ARE MARKED [***].
CO-PROMOTION AGREEMENT
THIS CO-PROMOTION AGREEMENT (the “Agreement”) is dated this 5th day of January, 2024, but effective as of January 1, 2024 (the “Effective “Date”) by and between Heron Therapeutics, Inc., a Delaware corporation (hereinafter called “Heron”) and Crosslink Network, LLC, a Georgia limited liability company (hereinafter called “Co-Promoter”) (Heron and Co-Promoter sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”).
WITNESSETH:
WHEREAS, the Parties hereto desire to enter into this Agreement upon the terms hereinafter set forth so as to promote the sale of ZYNRELEF® (bupivacaine and meloxicam) extended-release solution (the “Product”) for all of the Product’s current and future FDA approved indications involving surgical procedures performed within the Territory (as hereinafter defined). For purposes hereof, the term “Product” includes all subsequent FDA approved enhancements or improvements made by Heron to the Product including without limitation enhancements and improvements to the method of dosing or delivery of the Product (e.g., Heron’s proposed pre-filled syringe delivery mechanism).
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:
For the Term (as hereinafter defined) of this Agreement, Heron appoints Co-Promoter as its exclusive co-promoter (with the exception of sales personnel directly employed by Heron and with respect to geographic regions where Co-Promoter has not granted rights or intends to grant rights prior to the first anniversary of this Agreement to any of its affiliated Sub-Promoters referenced in Section 2.02 below) for the sale of the Product within the United States (the “Territory”) for all of the Product’s current and future FDA approved indications and Co-Promoter hereby accepts this appointment, all subject to the terms and conditions of this Agreement.
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Any dispute, controversy or claim initiated by either Party arising out of, resulting from or relating to this Agreement, or the performance by either Party of its obligations under this Agreement (other than bona fide third party actions or proceedings filed or instituted in an action or proceeding by a third party against a Party), whether before or after termination of this Agreement, shall be finally resolved by binding arbitration. Any such arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association by a panel of three arbitrators appointed in accordance with such rules with the arbitration taking place in North Carolina. The method and manner of discovery in any such arbitration proceeding shall be governed by the laws of the State of Delaware. The arbitrators shall have the authority to grant injunctions and/or specific performance and to allocate between the Parties the costs of arbitration in such equitable manner as they determine. Judgment upon the award so
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rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations. Notwithstanding the foregoing, either Party shall have the right, without waiving any right or remedy available to such Party under this Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such Party, pending the selection of the arbitrators hereunder or pending the arbitrators’ determination of any dispute, controversy or claim hereunder.
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If to Heron: Heron Therapeutics, Inc.
4242 Campus Point Court
Suite 200
San Diego, CA 92121
Attn: Chief Executive Officer
Email: [***]
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With copies to:
Heron Therapeutics, Inc.
4242 Campus Point Court
Suite 200
San Diego, CA 92121
Attn: Chief Financial Officer
Email: [***]
Heron Therapeutics, Inc.
4242 Campus Point Court
Suite 200
San Diego, CA 92121
Attn: Legal Department
Email: [***]
If to Co-Promoter: CrossLink Network, LLC
1880 Beaver Ridge Circle
Norcross, GA 30071
Attn: Thomas Fleetwood, CEO
Email: [***]
With a copy to:
Richard L. Haury, Jr., Esq.
Sr.VP/General Counsel
CrossLink Life Sciences, LLC
1880 Beaver Ridge Circle
Norcross, GA 30071
Email: [***]
or to such other address or person as a Party may hereinafter designate by written notice to the other Party.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have hereunto signed this Agreement, effective as of the Effective Date.
HERON THERAPEUTICS, INC.
By: /s/ Craig Collard____________________
Craig Collard, CEO
Date: _January 5, 2024__________________
CROSSLINK NETWORK, LLC
By:_/s/ Thomas Fleetwood______________
Thomas Fleetwood, CEO
Date:_January 5, 2024___________________
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EXHIBIT A
[***]
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EXHIBIT B
[***]
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EXHIBIT C
[***]
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