EXHIBIT 10.6
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement"), dated as of
August 1, 2003 (the "Effective Date"), is by and between Berlex Laboratories,
Inc., a Delaware corporation, with offices at 340 Changebridge Road, P.O. Box
1000, Montville, New Jersey 07045-1000 ("Berlex"), and Cytogen Corporation, a
Delaware corporation, with offices at 650 College Road East, Suite 3100,
Princeton, New Jersey 08540 ("Cytogen"). For the purposes of this Agreement,
Berlex and Cytogen are sometimes referred to collectively as the "Parties" and
individually, each as a "Party."
RECITALS
WHEREAS, Cytogen and Berlex entered into that certain
Termination Agreement, dated June 16, 2003 (the "Termination Agreement"),
pursuant to which, each Party agreed to terminate that certain License
Agreement, dated as of October 28, 1998 (the "License A greement"), as of the
Effective Date; and
WHEREAS, pursuant to Section 6 of the Termination Agreement,
at the Closing (as defined in the Termination Agreement), Berlex is required to
assign to Cytogen all of its rights and obligations under that certain
Manufacturing and Supply Agreement, dated as of January 1, 1999 (the "Supply
Agreement"), between Bristol-Myers Squibb ("BMS"), formerly known as Dupont
Pharmaceuticals Company, Berlex and Cytogen, as permitted by Section 9.7 of the
Supply Agreement; and
WHEREAS, the Parties wish to conduct the Closing pursuant to
the Termination Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Parties hereby agree as follows:
1. Berlex hereby assigns and transfers to Cytogen, and Cytogen
hereby accepts and takes assignment of, all of Berlex's right,
title and interest in, and all of Berlex's duties and obligations
under the Supply Agreement as of the Effective Date.
Notwithstanding the foregoing, Cytogen shall not be responsible
for, or obligated to pay, for any: (i) services provided, (ii)
Product (as defined in the Supply Agreement) manufactured; (iii)
Product sold; (iv) Product delivered; or (v) any liabilities
incurred by Berlex under the Supply Agreement prior to the
Effective Date, unless such services, Product or liabilities are
set forth on SCHEDULE A, attached hereto.
2. Berlex represents and warrants that: (i) it is not in default of
any of its obligations, payments or liabilities under the Supply
Agreement; (ii) it has paid all amounts due and payable to BMS
and Cytogen as of the Effective Date; (iii) it has not previously
assigned any of its rights or delegated any of its duties or
obligations under the Supply Agreement to any third party; and
(iv) it will pay any amounts to BMS that become due and payable
for services performed, Product manufactured, Product delivered,
Product sold or Product used prior to the Effective Date (other
than any payment that is set forth on SCHEDULE A, attached
hereto).
3. Berlex represents and warrants that, to its knowledge, as of the
Effective Date, BMS is not in default, nor does Berlex have any
reason to believe that BMS will, in the future, be in default of
any of any of its obligations or responsibilities under the
Supply Agreement. Furthermore, Berlex represents and warrants
that, as of the Effective Date, it has no reason to believe that
BMS will not be able supply and distribute the quantities of
Product ordered under the Supply Agreement.
4. Berlex acknowledges that it will remain responsible for invoicing
all customers that receive Product sold prior to the Effective
Date. As used herein, a Product will be "sold" and a Product
"sells" upon the date which the customer receives the Product.
The Parties acknowledge that Berlex shall be entitled to receive
and retain any payments made by customers for Product sold prior
to the Effective Date, subject to Cytogen's right to receive
royalty payments thereon from Berlex.
5. Subject to the surviving obligations of the parties pursuant to
the License Agreement and the Termination Agreement, Berlex
acknowledges that it will remain responsible for any and all
liabilities, demands, judgments, suits, causes of action, claims,
damages, penalties, sanctions, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) of
any kind or character that arise out of services provided,
Product manufactured, Product delivered, Product used or Product
sold under the Supply Agreement prior to the Effective Date,
unless such services, Product or liabilities are set forth on
SCHEDULE A, attached hereto ("Claims").
6. Berlex shall indemnify and hold harmless Cytogen and its
affiliates and its respective officers, directors, employees,
partners and agents from any and all Claims.
7. For a period of 90 days after the Effective Date, the Parties
shall use commercially reasonable efforts to cooperate with each
other for an orderly transition of the Supply Agreement to
Cytogen.
8. For a period of 90 days after the Effective Date, in the event of
a substantial disruption in the manufacturing or supply of the
Product, Berlex shall, at Cytogen's request, use commercially
reasonable efforts to assist Cytogen in procuring an alternative
source of supply of Product.
9. Except as expressly described above, this Agreement shall not
constitute a modification or an alteration of any of the terms
and conditions of the Supply Agreement, which shall remain in
full force and effect.
10. Cytogen shall use commercially reasonable efforts in conjunction
with Bristol Myers Squibb Medical Imaging to effect the
transition of labeling and packaging from Berlex to Cytogen for
Product, per regulatory requirements within ninety (90) days of
the Effective Date. The parties agree that until such time as
Cytogen has completed such transitional labeling and packaging
for the Product, Cytogen shall be entitled to use the name
"Berlex" or any trade names, trademarks, identifying logos or
service marks related thereto or employing the word "Berlex" or
any part or variation of any of the foregoing on any Product
(including its labeling and packaging) (collectively, "Berlex
Marks") without any obligation on the part of Cytogen to pay
royalties or similar fees related thereto to Berlex. Cytogen
agrees that upon the completion of such transitional labeling and
packaging for Product, Cytogen shall cease and desist from all
further use of the Berlex Marks. Cytogen shall not use the Berlex
Marks in any manner that might dilute, tarnish, disparage or
reflect adversely on Berlex or the Berlex Marks. The foregoing
provisions of this Section 10 shall not be interpreted as
convening any interest in the Berlex Marks to Cytogen. Cytogen
shall indemnify and hold harmless Berlex and its affiliates and
its respective officers, directors, employees, partners and
agents from any and all any and all liabilities, demands,
judgments, suits, causes of action, claims, damages, penalties,
sanctions, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any kind or character
that arise out of Cytogen's use of the Berlex Marks in manner
inconsistent with the rights granted by Berlex to Cytogen under
this Section 10.
11. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of
the State of Delaware, without reference to its conflicts of law
provisions, and the United States of America. The State of
Delaware and federal courts within the State of Delaware shall be
the only courts of competent jurisdiction.
12. This Agreement may be executed in any number of counterparts, and
any such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute
one and the same Agreement.
* * * * * * * * * *
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
BERLEX LABORATORIES, INC.
By: /s/ Lutz Lingnau
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Name: Lutz Lingnau
Title: Chairman
CYTOGEN CORPORATION
By: /s/ Michael D. Becker
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Name: Michael D. Becker
Title: President and Chief Executive Officer
SCHEDULE A
- - Cost of goods for sales of Products that Cytogen sells on and after the
Effective Date.
- - Any sample requests in process as of the Effective Date.
- - Any open vial shield and calibration sample requests in process as of the
Effective Date.