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EXHIBIT 10.46
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (the "Termination Agreement") is made as of
this 14th day of December 2000, by and between SONUS PHARMACEUTICALS, INC., a
Delaware corporation ("Sonus") and XXXXXX LABORATORIES, an Illinois corporation
("Abbott").
R E C I T A L S
X. Xxxxxx and Sonus previously entered into that certain QW3600 Contrast
Agent Development and Supply Agreement dated May 6, 1993, as amended by (i) an
Amendment dated August 22, 1995, (ii) an Amendment 1 dated May 29, 1996, (iii)
Amendment 2 dated May 15, 1997 and (iv) a letter agreement dated February 3,
2000 (collectively, the "Supply Agreement").
X. Xxxxxx and Sonus desire to terminate the Supply Agreement and to set
forth herein all of the outstanding obligations of either party to the other.
NOW, THEREFORE, in consideration of the foregoing and the mutual terms
and conditions hereinafter set forth, Sonus and Abbott agree as follows:
1. TERMINATION OF SUPPLY AGREEMENT. The Supply Agreement is hereby
terminated effective upon the date hereof. Except as otherwise specifically
provided herein, neither party shall have any further duty, liability or
obligation to the other party in connection with the Supply Agreement.
2. OWNERSHIP OF EQUIPMENT AND OTHER PERSONAL PROPERTY. Abbott shall
retain possession and full and complete title to all equipment, tooling and
other personal property relating to the development and manufacture of the
Product and/or the Trays (as such terms are defined in the Supply Agreement)
pursuant to the Supply Agreement, including without limitation all manufacturing
equipment, tooling, inventory, raw materials, work in process and materials and
supplies related thereto (except for the Product and Sonus raw materials to be
delivered to Sonus as provided in Section 3 below), and Sonus hereby confirms
that it has no right, title and interest in and to any such equipment, tooling,
inventory, raw materials, work in process or materials or supplies.
3. OUTSTANDING OBLIGATIONS.
(a) The outstanding obligations of Sonus to Abbott shall consist
solely of (i) the obligation of Sonus to pay Abbott Twenty Four Thousand Dollars
($24,000.00) pursuant to Abbott invoice number 319008 for labeling development;
(ii) the obligation of Sonus to pay Abbott for the Product in the amount of
Ninety Three Thousand Four Hundred Sixty Five Dollars and Forty Nine Cents
($93,465.49) in the quantities specified in Sonus purchase order 200427; and
(iii) the obligation of Sonus to pay Abbott Twenty Six Thousand Six Hundred
Seventy Six Dollars and Fifty Nine Cents ($26,676.59) for commodities purchased
pursuant to purchase order 200427, provided, however, that Abbott shall retain
possession and full and complete title to such commodities. Sonus shall pay to
Abbott Twenty Four Thousand Dollars ($24,000.00) pursuant to clause (i) above,
Ninety Three Thousand Four Hundred Sixty Five and Forty Nine Cents ($93,465.49)
pursuant to clause (ii)
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above, and Twenty Six Thousand Six Hundred Seventy Six Dollars and Fifty Nine
Cents ($26,676.59) pursuant to clause (iii) above within thirty (30) days
following delivery of the Product and Sonus raw materials pursuant to paragraph
3(b) below. Except as expressly provided above, Sonus shall have no further
duty, liability or obligation to Abbott.
(b) The outstanding obligations of Abbott to Sonus shall consist
solely of the obligation of Abbott to deliver to Sonus (i) the Product referred
in clause (ii) of paragraph (a) above, and (ii) the DDFP and PEG Telomer B raw
materials on hand which were previously supplied by Sonus to Xxxxxx. Xxxxxx
shall deliver to Sonus such Product and Sonus raw materials at the Bothell,
Washington headquarters of Sonus promptly, but in any event within (30) days,
following execution and delivery of the executed Termination Agreement to
Abbott. Such delivery shall be F.O.B. Xxxxxx'x manufacturing site and Sonus
shall be responsible for all freight charges, risk of loss, or damage after
delivery by Abbott to the carrier at such F.O.B. point.
4. MUTUAL RELEASE. Each of Abbott on behalf of itself and its
representatives, officers, directors, successors, assigns and agents on the one
hand, and Sonus on behalf of itself and its representatives, officers,
directors, successors, assigns and agents on the other hand, do hereby fully
release forever discharge the other party and its representatives, officers,
directors, successors, assigns and agents of and from any and all manner of
actions, suits, liens, debts, damages, claims, obligations, liabilities and
demands of every nature, kind and description whatsoever, whether known or
unknown and whether suspected or unsuspected, either at law, in equity or
otherwise, which such party has, has had or may have or may claim to have,
against the other party, its representatives, officers, directors, successors,
assigns or agents. The parties intend that the foregoing shall be a general
mutual release and shall extend to all claims which the other party does not
know of or suspect to exist in its favor. In connection therewith, each party
waives the benefits afforded by any statute or regulation in connection
therewith.
5. GENERAL.
(a) Each of the parties represents and warrant to the other
party that it has not assigned or transferred to any person, corporation or
other entity, any claim, liability or cause of action based on or arising out
of, or in connection with any matter, claim or cause of action which is being
released pursuant to the provisions of this Termination Agreement.
(b) This Termination Agreement shall be binding upon, and shall
inure to the benefit of the parties hereto and their respective heirs,
successors, representatives and assigns.
(c) This Termination Agreement shall be governed and construed
by the laws of the State of Illinois.
(d) This Termination Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof and supercedes all
other agreements or understanding with respect to the subject matter hereof.
(e) The terms of this Termination Agreement may be amended,
modified or eliminated only upon the mutual written agreement of the parties
hereto. The waiver by either party hereto of any breach of any of the terms or
provisions of this Agreement shall not be construed as a waiver of any
subsequent breach.
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(f) Each of the parties of this Termination Agreement represents
and warrants that that the persons executing this Agreement are authorized and
empowered to enter and to execute this Agreement for and on behalf of such
party.
(g) This Termination Agreement may be executed in one or more
counterparts, each of which shall be deemed an original all of which together
shall be deemed one in the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Termination
Agreement as of the date herein first above written.
SONUS PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President and CEO
XXXXXX LABORATORIES
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Its: Corporate Senior Vice President
President, Hospital Products
Division
