CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT 10.45
DATE: DECEMBER 20, 2002
ELAN CORPORATION, PLC.
AND
PAR PHARMACEUTICAL, INC.
TERMINATION AGREEMENT
RELATING TO
DEVELOPMENT, LICENCE AND SUPPLY AGREEMENT
DATED 11 DECEMBER 2001
CONTROLLED RELEASE ET AL. / NOMINATED COMPOUNDS
Exhibit 10.45 - Page 1
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
THIS TERMINATION AGREEMENT is made December 20, 2002
BETWEEN:
(1) ELAN CORPORATION, PLC., a public limited company incorporated under the
laws of Ireland and having its registered office at Lincoln House,
Lincoln Place, Dublin 2, Ireland ("ELAN"); and
(2) PAR PHARMACEUTICAL, INC., a company organized under the laws of New
Jersey, with offices at One Ram Ridge Road, Spring Valley, New York
10977, United States of America ("PAR")
RECITALS:
(A) Elan and Par entered into a development, licence and supply agreement
dated 11 December 2001 (the "ORIGINAL AGREEMENT").
(B) Pursuant to the Original Agreement, the parties selected for
development the Compound ********** and Elan has subsequently conducted
development work to apply the Elan Technology to such Compound.
(C) Elan and Par now wish to terminate the Original Agreement, on the terms
and conditions set out in this Termination Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS in consideration of the premises and mutual
covenants promises herein contained:
1. DEFINITIONS AND INTERPRETATION
------------------------------
Except where expressly provided to the contrary in this Termination Agreement:
1.1. all capitalised terms used in this Termination Agreement shall have the
same meanings as are assigned thereto in the Original Agreement; and
1.2. "TERMINATION DATE" shall mean December 20, 2002.
2. TERMINATION
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2.1. The Original Agreement is hereby terminated with effect from the
Termination Date.
2.2. For the avoidance of doubt:
2.2.1 the license granted by Elan to Par to import, use, offer for
sale and sell the Products in the Territory is hereby
terminated with effect from the Termination Date;
2.2.2 development work in respect of the Compound ********** is
hereby abandoned;
2.2.3 Elan shall remain the owner of the Elan Intellectual Property;
2.2.4 no further Compounds will be selected for development; and
Exhibit 10.45 - Page 2
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
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ASTERISKS DENOTE SUCH OMISSION
2.2.5 Par's obligation not to develop, market or sell a Competing
Product is hereby terminated with effect from the Termination
Date.
3. EXISTING RIGHTS
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Except as expressly provided to the contrary in this Termination Agreement, each
of the parties hereby waives all and any claims it may have against any other
party as at the date hereof in respect of any breach of the Original Agreement.
4. SURVIVAL
--------
Termination of the Original Agreement shall be without prejudice to:
4.1. the provisions of the Original Agreement relating to confidentiality,
which shall accordingly survive until the 7th (seventh) anniversary of
the Termination Date, and provisions ancillary thereto; or
4.2. any other agreement between Elan and Par.
5. FINANCIAL PROVISIONS
--------------------
Within five business days of the Termination Date, Par shall pay to Elan the
non-refundable sum of US$ 651,797 (o United States dollars), being the total
amount outstanding in respect of development work up to and including the
Termination Date and being in complete satisfaction of all amounts payable to
Elan in respect of development or otherwise pursuant to the terms of the
Original Agreement. Such payment shall be made by bank transfer without any
deduction, set off or withholding whatsoever.
6. PATENT OPINION.
- -----------------
Elan shall have not right to, and shall not, rely on any opinion of Frommer
Lawrence & Haug LLP in respect of any intellectual property matters related to
**********.
6. FURTHER ASSURANCE
-----------------
At the request of any of the parties, each other party shall (and shall use
reasonable efforts to procure that any other necessary persons shall) execute
and perform all such documents, acts and things as may reasonably be required
subsequent to the execution of this Termination Agreement for assuring to or
vesting in the requesting party the full benefit of the terms hereof.
7. COUNTERPARTS
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This Termination Agreement may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Termination Agreement.
8. GOVERNING LAW AND JURISDICTION
------------------------------
This Termination Agreement shall be governed by the laws of the State of New
York, excluding its conflict of laws rules. Any dispute arising shall be
disposed of in the same manner as a dispute under the Original Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Termination Agreement.
Exhibit 10.45 - Page 3
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
SIGNED SIGNED
By: /s/ Alex Nesbitt By: /s/ Scott Tarriff
-------------------------------------- -------------------------------
For and on behalf of for and on behalf of
ELAN CORPORATION, PLC. PAR PHARMACEUTICAL, INC.
Exhibit 10.45 - Page 4