Duly authorised for and on behalf of
Exhibit 4.90
Execution
Copy
|
ELAN
PHARMA INTERNATIONAL LIMITED
AND
AMARIN
PHARMACEUTICALS IRELAND LIMITED
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|
|
Certain
portions of this Exhibit have been omitted pursuant to a request for
“Confidential Treatment” under Rule 24b-2 of the Securities and Exchange
Commission. Such portions have been redacted and bracketed in the
request and appear as [*] in the text of this Exhibit. The omitted
confidential information has been filed with the Securities and Exchange
Commission.
INDEX
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1.
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Definitions
and Interpretation
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1
|
|
2.
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Termination
of Agreement
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3
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3.
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Assignment
and Transfer
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3
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4.
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Consideration
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4
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5.
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Effecting
Transfer
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4
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6.
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Material
Agreements
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5
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7.
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No
Assumption of Obligations
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5
|
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8.
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Representations,
Warranties and Indemnification
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6
|
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9.
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Miscellaneous
Provisions
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8
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Schedule
1
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Material
Agreements
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12
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|
Schedule
2
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Project
Materials
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13
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i
THIS TERMINATION AND ASSIGNMENT
AGREEMENT is dated 21 July 2009
PARTIES:
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(1)
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ELAN
PHARMA INTERNATIONAL LIMITED, a
limited liability company incorporated under the laws of Ireland, whose
registered office is at Xxxxxxxxx, Xxxxxxx, Xx. Xxxxxxxxx, Xxxxxxx (“Elan”);
and
|
|
(2)
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AMARIN
PHARMACEUTICALS IRELAND LIMITED , a
limited liability company incorporated under the laws of Ireland, whose
registered office is at First Floor, Block 3, The Oval, Xxxxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxx 0, Xxxxxxx (“Amarin”)
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BACKGROUND:
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(A)
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Elan
and Amarin entered into a Development and License Agreement (dated 6 March
2007) relating to the joint development and commercialization of a
pharmaceutical product containing the active drug substance known as
lorazepam which incorporates Elan Intellectual Property, as defined
therein (the “Development
and License Agreement”).
|
|
(B)
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Elan
and Amarin now wish to terminate the Development and License Agreement and
to transfer any other assets and/or rights which Amarin currently
maintains and Elan wishes to acquire in reference to the development and
commercialization of Product, Product Intermediate or Device (as said
terms are defined in the Development and License Agreement) with effect
from the Termination Date in accordance with the terms and conditions set
out below.
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TERMS:
The
parties agree as follows:
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1.
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DEFINITIONS AND
INTERPRETATION
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|
1.1.
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Definitions.
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1.1.1
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Except
where expressly provided to the contrary in this Termination and
Assignment Agreement, all capitalised terms used in this Termination and
Assignment Agreement shall have the same meanings as are assigned thereto
in the Development and License
Agreement.
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1.1.2
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“Amarin Intellectual Property
Rights” means (a) Amarin Intellectual Property, comprising for the
avoidance of doubt Amarin Improvements (which in turn includes Amarin’s
interest in the Joint Compound Improvements), Amarin Know-How and Amarin
Patents; and (b) all of Amarin’s rights (if any) in and to the Project
Materials.
|
|
1.1.3
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“Encumbrance” means any
mortgage, charge, pledge, lien, option, restriction, right of first
refusal, right of pre-emption, third party right or interest, any other
encumbrance or security interest of any kind and any other type of
preferential arrangement (including title, transfer and retention
arrangements) having similar
effect.
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Page
1
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1.1.4
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“Material Agreements”
shall mean any agreements which currently exist between Amarin and a third
party relating to the development or commercialization of Product
Intermediate, Product or Device, including those set forth in Schedule
1.
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1.1.5
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“Neurostat Agreement”
means the Agreement dated January 18, 2007 for the termination and release
of certain confidentiality obligations between Neurostat Pharmaceuticals
Inc., Amarin Pharmaceuticals Ireland Limited, Amarin Corporation plc and
Xxx Xxxxx
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1.1.6
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“Neurostat Know How”
means the Licensed Know How (if any), as such term is defined in the
Neurostat Agreement
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1.1.7
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“Project Materials” shall
mean all materials owned, held and/or controlled by Amarin, whether in
electronic or hard copy form, in reference to Product Intermediate,
Product or Device, including:
|
|
·
|
Amarin
Compound Data (as such term is defined in the Development and License
Agreement)
|
|
·
|
pharmacology,
pharmacokinetics and toxicology information relating to the Compound,
Product Intermediate, Product or Device not already covered by Amarin
Compound Data;
|
|
·
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draft
or final study protocols which describe the details of approach and
experimental design of Product Intermediate, Product or Device not already
included in Amarin Compound Data;
|
|
·
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draft
or final study reports which present data, charts and figures generated
from any preclinical studies relating to Product Intermediate, Product or
Device not already included in Amarin Compound
Data;
|
|
·
|
any
correspondence or notes relating to any communication with any patent
offices, Regulatory Authorities, consultants or other third parties with
respect to any filings, development, commercialization or other plans
associated with the development and/or commercialization of Product
Intermediate, Product or Device.
|
This
term shall include materials are set out in Schedule 2.
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1.1.8
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“Termination and Assignment
Agreement” means this termination and assignment agreement,
including its recitals.
|
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1.1.9
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“Termination Date” shall
mean the date of the last party to sign this Termination
Agreement.
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|
1.1.10
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“Workplans” shall mean
all work plans agreed and executed by the parties pursuant to the
Development and License Agreement, including but not limited to those
workplans executed in November 2007, January 2008 and August
2008.
|
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1.2.
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Interpretation. In
this Termination and Assignment
Agreement:
|
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1.2.1
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Unless
the context otherwise requires, reference to a recital, article,
paragraph, provision, clause or schedule is to a recital, article,
paragraph, provision, clause or schedule of or to this Termination and
Assignment Agreement.
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Page
2
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1.2.2
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The
headings in this Termination and Assignment Agreement are inserted for
convenience only and do not affect its
construction.
|
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1.2.3
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The
expressions “include”, “includes”, “including”, “in particular” and
similar expressions shall be construed without
limitation.
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|
2.
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TERMINATION OF
AGREEMENT
|
|
2.1.
|
The
Development and License Agreement and all Workplans are hereby terminated
with effect from the Termination
Date.
|
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2.2.
|
Subject
to Clause 2.3 below, as of the Termination Date the Development and
License Agreement shall terminate and be of no further legal force and
effect and all rights granted to Amarin by Elan under that agreement shall
cease and revert to Elan. In particular, but without prejudice
to the generality of the foregoing, with effect from the Termination Date,
the Elan License granted in Clause 2.1 of the Development and License
Agreement and the options granted to develop and obtain additional license
rights to Expanded Formulations set out in Clause 2.4 of the Development
and License Agreement shall terminate and be of no further effect, and any
purported exercise of such an option prior to the Termination Date shall
be void and of no effect.
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|
2.3.
|
Notwithstanding,
and in substitution for, the provisions of Clause 13 (Consequences of
Termination) of the Development and License
Agreement:
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2.3.1
|
All
representations and warranties contained in the Development and License
Agreement insofar as appropriate remain in full force and
effect;
|
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2.3.2
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The
provisions of the Development and License Agreement regarding
confidentiality and non-use of materials or confidential information in so
far as these provisions apply to Amarin shall remain in effect for a
further period of [*******]1 from the
Termination Date; and for the avoidance of doubt in applying the
foregoing, all confidential information transferred to Elan under this
Termination and Assignment Agreement shall be considered Confidential
Information of Elan and not Confidential Information of
Amarin;
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2.3.3
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The
provisions of the Development and License Agreement regarding
non-competition set out in Clause 4.1 and 4.2 and 4.4 thereof with respect
to Amarin alone shall remain in effect for a further period of one (1)
year from the Termination Date;
|
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2.3.4
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To
the extent that any Claim is made in respect of any Product Intermediate,
Product or Device used, distributed or administered prior to the
Termination Date, the indemnification provisions set forth in Clause 14.5
of the Development and License Agreement shall remain in full force and
effect; and
|
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2.3.5
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Any
other provision of the Development and License Agreement, which is
necessary to survive to effectuate Clauses 2.3.1 through 2.3.4 of this
Termination Agreement, shall survive
termination.
|
|
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CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS [*] DENOTE SUCH
OMISSIONS.
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Page
3
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3.
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ASSIGNMENT AND
TRANSFER
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3.1.
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On
the Termination Date, Amarin shall transfer and supply to Elan and Elan
shall acquire all right, title and interest in the Project Materials, free
from Encumbrances.
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3.2.
|
On
the Termination Date, Amarin shall transfer and assign all rights, title
and interest in Amarin Intellectual Property Rights to Elan free from
Encumbrances.
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|
4.
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CONSIDERATION
|
|
4.1.
|
Payment. In
consideration of Amarin’s entry into and performance of this Termination
and Assignment Agreement, Elan shall pay to Amarin the sum of US$700,000
(seven hundred thousand United States dollars). All payments due hereunder
shall be made in US dollars to the designated bank account of Amarin in
accordance with such reasonable written instructions as Amarin shall
provide.
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|
4.2.
|
VAT. Payments
made by Elan pursuant to Clause 4.1 of this Termination and Assignment
Agreement are exclusive of VAT which will be additionally payable by Elan
in the event that VAT applies to this payment, provided that Amarin will
issue an appropriate VAT invoice to support any such VAT
charge. As Elan holds a valid VAT 13B authorization
(authorization number: 90/11298/102009) the parties acknowledge that VAT
will not be charged on this
transaction.
|
|
4.3.
|
Withholding. Any
income or other taxes which Elan is required by law to withhold from
amounts payable to Amarin under this Termination and Assignment Agreement
shall be deducted from the amount of such payments due to
Amarin. Any such tax required to be withheld shall be an
expense of and borne solely by Amarin. Elan shall promptly
provide Amarin with a certificate or other documentary evidence of such
withholding.
|
|
5.
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EFFECTING
TRANSFER
|
|
5.1.
|
To
the extent that it has not already done so prior to the Termination Date,
Amarin shall as soon as reasonably practicable and in any event within
fifteen (15) days after the Termination Date provide to
Elan:
|
|
5.1.1
|
originals
and copies of all Project Materials, except that Amarin may retain one (1)
copy solely for the purposes of ensuring compliance with this Termination
and Assignment Agreement;
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5.1.2
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copies
of all Material Agreements;
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5.1.3
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an
itemised list of all Project Materials together with confirmation that
such list is complete and accurate.
|
|
5.2.
|
All
items referred to in Clause 5.1 shall be delivered
to:
|
[***********]2
Project
Manager
Elan
Pharma International Ltd.
Monksland
Athlone
Co.
Westmeath
|
|
CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS [*] DENOTE SUCH
OMISSIONS.
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Page
4
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5.3.
|
Within
fifteen (15) days after the Termination Date Amarin shall provide to Elan
an officer’s certificate confirming that the provisions of Clauses 5.1
have been duly complied with.
|
|
6.
|
MATERIAL
AGREEMENTS
|
|
6.1.
|
The
parties hereby acknowledge that Elan does not assume any liability or
obligation under the Material Agreements or any other agreement between
Amarin and a Third Party except as expressly set forth in this Clause
6. Amarin further agrees to indemnity and hold harmless Elan
for any obligations or liabilities arising from any circumstance or breach
by Amarin of the Material
Agreements.
|
|
6.2.
|
As
and when requested by Elan in respect of any Material Agreement, Amarin
shall either:
|
|
6.2.1
|
assign
such Material Agreement to Elan for no further consideration, except that
Elan shall be responsible for the performance of Amarin’s obligations
thereunder as from the time of assignment;
or
|
|
6.2.2
|
use
commercially reasonable efforts to terminate such Material
Agreement.
|
|
6.3.
|
In
the event that Elan wishes to assume a Material Agreement but Amarin is
not entitled to assign it without the consent of the
counter-party:
|
|
6.3.1
|
Elan
and Amarin shall use commercially reasonable efforts to procure the
expeditious assignment or novation of such Material
Agreement;
|
|
6.3.2
|
unless
and until such Material Agreement is assigned or
novated:
|
|
6.3.2.1
|
Elan
shall perform Amarin’s obligations under the Material Agreement in
question as Amarin’s sub-contractor, if such sub-contracting is
permissible under the Material Agreement in
question;
|
|
6.3.2.2
|
if
such sub-contracting is not permissible, Amarin shall duly perform all of
its obligations under the Material Agreement at Elan’s expense;
and
|
|
6.3.2.3
|
Amarin
shall hold the benefit of the Material Agreement on trust for Elan
absolutely, account to Elan for it promptly on demand and otherwise
operate the Material Agreement in such manner as Elan may lawfully
specify.
|
|
6.4
|
Amarin
hereby grants to Elan an exclusive, worldwide royalty-free sub-license to
use the Neurostat Know How to research, develop, use, make, have made,
import, offer for sale, sell and otherwise dispose of Products (as defined
in the Neurostat Agreement) with respect to which Amarin obtained rights
pursuant to the Development and License Agreement. Except to
the extent that Amarin’s license to the Neurostat Know How may be
revocable by the counter-parties thereto, such sub-license shall be
irrevocable.
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Page
5
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7.
|
NO ASSUMPTION OF
OBLIGATIONS
|
|
7.1.
|
Generally. Elan
does not assume any liabilities of Amarin outstanding as of the
Termination Date, whether actual or
contingent.
|
|
7.2.
|
Employees. Elan
and Amarin acknowledge and agree that this Termination and Assignment
Agreement and the transactions contemplated by it are not intended to
constitute the transfer of an undertaking or any part thereof for the
purposes of the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246) (“TUPE”). As
between Elan and Amarin, Amarin shall remain solely responsible for its
employees, including all those employees whose duties include or have ever
included activities contemplated by the Development and License
Agreement.
|
|
7.3.
|
Indemnity. Amarin
shall indemnify and keep indemnified Elan against all moneys, actions,
proceedings, costs, claims, demands, damages and expenses made by or due
to any employee or former employee of Amarin in respect of or arising out
of the transactions contemplated by this Termination and Assignment
Agreement.
|
|
8.
|
REPRESENTATIONS,
WARRANTIES AND
INDEMNIFICATION
|
|
8.1.
|
Amarin. Amarin
represents and warrants to Elan as of the Termination Date as
follows:
|
|
8.1.1
|
Organisation and
Authority. Amarin is a limited liability company duly
incorporated and validly existing in Ireland. Amarin has all
the requisite legal and corporate power and authority to enter into this
Termination and Assignment Agreement and perform its obligations under
this Termination and Assignment Agreement. This Termination and
Assignment Agreement is the valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms except as limited by
applicable insolvency and other laws of general application affecting the
enforcement of creditors’ rights
generally.
|
|
8.1.2
|
No
Conflicts. There are no agreements between Amarin and
any third party that conflict with this Termination and Assignment
Agreement.
|
|
8.1.3
|
Approvals. No
permit, authorisation, consent or approval of or by, or any notification
of or filing with, any person is required in connection with the
execution, delivery or performance of this Termination and Assignment
Agreement by Amarin.
|
|
8.1.4
|
Standing. To
the best knowledge of Amarin, no order has been made or petition presented
or resolution passed for the winding up of Amarin. To the best
knowledge of Amarin, no distress, execution or other process has been
levied on any of the assets of Amarin. No power to appoint a
receiver has been exercised or has arisen in respect of the business or
any of the assets of Amarin and there is no unfulfilled or unsatisfied
judgment or Court order outstanding against any of them. None
of the foregoing statements in this Clause 8.1.4 will be rendered false by
the execution, delivery or performance of this Termination and Assignment
Agreement by Amarin.
|
|
8.1.5
|
Third Party
Rights. To the best knowledge of Amarin, without having
conducted any special search, no third party (including any counterparty
to a Material Agreement) has or will have any rights which may be
infringed by the importation, use, making, having made, offering for sale
or sale of Product or Product
Intermediate.
|
Page
6
|
8.1.6
|
Employees. No
employee of Amarin or any of its Affiliates is wholly or principally
engaged in the development and/or future commercialisation of Product or
Product Intermediate.
|
|
8.1.7
|
Grants. Amarin
has not done or failed to do any act or thing which could result in all or
any part of a government grant or other similar payment or allowance, in
each case wholly or partly related to the development and/or future
commercialisation of Products, made or due to be made by it becoming
repayable or being forfeited by it, nor will the execution, delivery or
performance of this Termination and Assignment Agreement by Amarin result
in such a repayment or forfeiture.
|
|
8.1.8
|
Operation of
Development and License Agreement. Amarin has conducted
all activities under the Development and License Agreement in accordance
with all applicable laws and
regulations.
|
|
8.1.9
|
Intellectual
Property. There is no Amarin Intellectual Property,
comprising for the avoidance of doubt Amarin Improvements (which in turn
includes Amarin’s interest in the Joint Compound Improvements), Amarin
Know-How and Amarin Patents. To the best of Amarin’s knowledge,
neither Neurostat Pharmaceuticals Inc. nor Xxx Xxxxx own or control any
patent rights relating to or disclosing Product or Product
Intermediate.
|
|
8.1.10
|
Litigation. There
are no claims or actions pending or threatened against Amarin, or any
person for whom Amarin is vicariously liable, arising out of the conduct
of its activities under the Development and License Agreement and/or the
development and/or commercialisation of the Products, and there is no
circumstance of which Amarin is aware which is likely to give rise to such
a claim or action.
|
|
8.2.
|
Elan. Elan
represents and warrants to Amarin as of the Termination Date as
follows:
|
|
8.2.1
|
Organisation and
Authority. Elan is a limited liability company duly
incorporated and validly existing in Ireland. Elan has all the
requisite legal and corporate power and authority to enter into this
Termination and Assignment Agreement and perform its obligations under
this Termination and Assignment Agreement. This Termination and
Assignment Agreement is the valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms except as limited by
applicable insolvency and other laws of general application affecting the
enforcement of creditors’ rights
generally.
|
|
8.2.2
|
No
Conflicts. There are no agreements between Elan and any
third party that conflict with this Termination and Assignment
Agreement.
|
|
8.2.3
|
Approvals. No
permit, authorisation, consent or approval of or by, or any notification
of or filing with, any person is required in connection with the
execution, delivery or performance of this Termination and Assignment
Agreement by Elan.
|
|
8.3.
|
Indemnification. Each
of the parties shall indemnify and hold harmless the other party against
all and any claims (whether successful or otherwise), loss, liability,
damages and expenses, including reasonable legal fees and expenses
(together, “Claims”) insofar as they
arise out of any breach by the first party of any of its obligations or
warranties under this Termination and Assignment Agreement or from the
first party’s fraud or wilful
misconduct.
|
|
8.4.
|
Conduct of
Claims. The party seeking an indemnity
shall:
|
Page
7
|
8.4.1
|
fully
and promptly notify the other party of any Claim or proceedings, or
threatened Claim or proceedings;
|
|
8.4.2
|
permit
the indemnifying party to take full control of such Claim or proceedings,
with counsel of the indemnifying party’s choice, provided that the
indemnifying party shall reasonably and regularly consult with the
indemnified party in relation to the progress and status of such Claim or
proceedings;
|
|
8.4.3
|
co-operate
in the investigation and defence of such Claim or proceedings;
and
|
|
8.4.4
|
take
all reasonable steps to mitigate any loss or liability in respect of any
such Claim or proceedings.
|
The
indemnifying party may settle a Claim on terms which provide only for monetary
relief and do not include any admission of liability. Save as
aforesaid, neither the indemnifying party nor the party to be indemnified shall
acknowledge the validity of, compromise or otherwise settle any Claim without
the prior written consent of the other, which shall not be unreasonably
withheld.
|
8.5.
|
Release.
|
|
8.5.1
|
Subject
to Clause 8.5.2, with effect from the date hereof, each party and each of
its Affiliates (“Releasor”):
|
|
8.5.1.1
|
waives
any accrued rights that Releasor may have accrued against the other party,
whether known or unknown, foreseen or unforeseen, fixed or contingent, of
any nature whatsoever from the beginning of time to the date hereof under
the Development and License Agreement;
and
|
|
8.5.1.2
|
fully
and finally releases and discharges that party from any and all manner of
actions, claims, promises, debts, sums of money, demands, obligations, in
law or in equity, directly or indirectly, whether known or unknown,
foreseen or unforeseen, fixed or contingent, of any nature whatsoever that
Releasor may have by reason of any act, omission, matter, provision, cause
or thing whatsoever from the beginning of time to the date hereof under
the Development and License
Agreement.
|
|
8.5.2
|
Neither
party or any other Releasor waives, releases or discharges any obligation
arising under or specifically set forth in this Termination and Assignment
Agreement, including obligations which continue in force pursuant to
Clause 2.3. Further, Elan does not waive any right it has or
may have, or release or discharge any liability which Amarin has or may
have, pursuant to Clause 15 of the Development and License Agreement
(confidentiality), but Elan acknowledges as of the Termination Date that
it has no knowledge of any breach of that provision by
Amarin.
|
|
8.6.
|
Extension of
Indemnification Etc. Where this Termination and
Assignment Agreement provides for the indemnification of a party to this
Termination and Assignment Agreement or for the limitation of a party’s
liability or for the release of a party from liability, such
indemnification and/or limitation and/or release (as the case may be)
shall also apply for the benefit of such party’s Affiliates and the
employees, officers, directors and agents of any of them, acting in such
capacity.
|
Page
8
|
9.
|
MISCELLANEOUS
PROVISIONS
|
|
9.1.
|
Assignment. This
Termination and Assignment Agreement may be freely assigned by
Elan. Amarin may not assign any of its rights or obligations
under this Termination and Assignment
Agreement.
|
|
9.2.
|
Parties
Bound. This Termination and Assignment Agreement shall
be binding upon and run for the benefit of the parties, their successors
and permitted assigns.
|
|
9.3.
|
Relationship of the
Parties. In this Termination and Assignment Agreement,
nothing shall be deemed to constitute a partnership between the parties,
or any of them, or make any party an agent for any other party, for any
purpose whatsoever.
|
|
9.4.
|
Entire
Agreement. This Termination and Assignment Agreement
constitutes the entire agreement and understanding between the parties
with respect to their subject matter, and except as expressly provided,
supersede all prior representations, writings, negotiations or
understandings with respect to that subject
matter.
|
|
9.5.
|
Costs. Each
party shall bear its own legal and professional advisers’ costs and
expenses incurred in connection with the negotiation and entering into of
this Termination and Assignment
Agreement.
|
|
9.6.
|
Severability. If
any provision in this Termination and Assignment Agreement is deemed to
be, or becomes invalid, illegal, void or unenforceable under applicable
laws, such provision will be deemed amended to conform to applicable laws
so as to be valid and enforceable, or if it cannot be so amended without
materially altering the intention of the parties, it will be deleted, but
the validity, legality and enforceability of the remaining provisions of
this Termination and Assignment Agreement shall not be impaired or
affected in any way.
|
|
9.7.
|
Further
Assurance. Each party shall do and execute, or arrange
for the doing and executing of, each necessary act, document and thing
reasonably within its power to implement this Termination and Assignment
Agreement.
|
|
9.8.
|
Counterparts. This
Termination and Assignment Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute this
Termination and Assignment
Agreement.
|
|
9.9.
|
Notices.
|
|
9.9.1
|
A
notice under or in connection with this Termination and Assignment
Agreement (a “Notice”):
|
|
9.9.1.1
|
shall
be in writing; and
|
|
9.9.1.2
|
may
be delivered personally or sent by first class post (and air mail if
overseas) or by fax to the party due to receive the Notice at its address
set out below:
|
|
9.9.2
|
The
address referred to in Clause 9.9.1.2
is:
|
(a) in
the case of Elan:
|
|
Address:
Fax:
|
Elan
Pharma International Limited
Monksland
Athlone
Co.
Westmeath
Ireland [**********]3 |
|
|
CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS [*] DENOTE SUCH
OMISSIONS.
|
Page
9
Marked
for the attention of : Vice President & Legal
Counsel
(b) in
the case of Amarin:
|
|
Address:
Fax:
|
Amarin
Pharmaceuticals Ireland Limited
First
Xxxxx
Xxxxx
0
Xxx
Xxxx
Xxxxxxxxxx
Xxxx
Xxxxxxxxxxx
Xxxxxx
0
Xxxxxxx
x000 0 000
0000
|
Marked
for the attention of : General Counsel
|
9.9.3
|
Notice
is deemed given:
|
|
9.9.3.1
|
if
delivered personally, when the person delivering the notice obtains the
signature of a person at the address referred to in Clause
9.9.1.2;
|
|
9.9.3.2
|
if
sent by post, except air mail, six Business Days after posting
it;
|
|
9.9.3.3
|
if
sent by air mail, two Business Days after posting
it;
|
|
9.9.3.4
|
if
sent by fax, when confirmation of its transmission has been recorded by
the sender's fax machine.
|
|
9.10.
|
Confidentiality and
Announcements. The parties shall treat this Termination
and Assignment Agreement as confidential. No announcement or public
statement concerning the existence, subject matter or any term of this
Termination and Assignment Agreement, or its performance, shall be made by
or on behalf of any party without the prior written approval of the
other.
|
|
9.11.
|
Required
Disclosures. A party (the “Disclosing Party”) will be
entitled to make an announcement or public statement concerning the
existence, subject matter or any term of this Termination and Assignment
Agreement, or to disclose Confidential Information that the Disclosing
Party is required to make or disclose pursuant
to:
|
|
9.11.1
|
A
valid order of a court or Governmental
Authority
|
|
9.11.2
|
Any
other requirement of law or any securities or stock
exchange;
|
Page
10
Provided
that if the Disclosing Party becomes legally required to make such announcement,
public statement or disclosure hereunder, the Disclosing Party shall give the
other party prompt notice of such fact to enable the other party to seek a
protective order or other appropriate remedy concerning any such disclosure,
including confidential treatment and/or appropriate redactions.
The
Disclosing Party shall fully co-operate with the other party in connection with
that other party’s efforts to obtain any such order or other
remedy. If any such order or other remedy does not fully preclude
announcement, public statement or disclosure, the Disclosing Party shall make
such announcement, public statement, or disclosure only to the extent that the
same is legally required.
Amarin
shall be entitled to file this Termination and Assignment Agreement with the US
Securities and Exchange Commission as an exhibit to its Form 20-F for the year
ended December 31, 2008. Within 15 days after the Termination Date,
Elan shall notify Amarin of any redactions to the Agreement that Elan proposes
that Amarin consider prior to Amarin making the aforesaid filing.
|
9.12.
|
Other
Disclosures. Each of the parties shall be entitled to
provide a redacted copy of this Termination and Assignment Agreement, to
be agreed between the parties, to establish the termination of the
Development and License Agreement and assignment of rights under this
Termination and Assignment Agreement to third parties, as may be required
by each party to conduct its commercial
business.
|
|
9.13.
|
Waivers. A
failure to exercise or delay in exercising a right or remedy provided by
this Termination and Assignment Agreement or by law does not constitute a
waiver of the right or remedy or a waiver of other rights or
remedies. No single or partial exercise of a right or remedy
provided by this Termination and Assignment Agreement or by law prevents
further exercise of the right or remedy or the exercise of another right
or remedy.
|
|
9.14.
|
Variations. No
variation of this Termination and Assignment Agreement shall be effective
unless it is made in writing and signed by each of the
parties.
|
|
9.15.
|
Governing Law and
Jurisdiction. This Termination and Assignment Agreement
shall be governed by and construed in accordance with the laws of Ireland,
and shall be subject to the non-exclusive jurisdiction of the Irish
courts.
|
***
Page
11
|
|
SCHEDULE
1MATERIAL AGREEMENTS
|
[***
1 line omitted
***]4
|
|
CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS [*] DENOTE SUCH
OMISSIONS.
|
Page
12
|
|
SCHEDULE
2PROJECT MATERIALS
|
[
*** Approximately 18 lines omitted ***]5
|
|
5
CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS [*] DENOTE SUCH
OMISSIONS.
|
Page
13
EXECUTED by the parties on the
date appearing at the top of page 1.
SIGNED
_________________________________
|
|
Duly
authorised for and on behalf of
|
ELAN
PHARMA INTERNATIONAL LIMITED
SIGNED
_________________________________
|
|
Duly
authorised for and on behalf of
|
|
|
AMARIN
PHARMACEUTICALS IRELAND LIMITED
|
