TRANSITION SERVICES AGREEMENT
Exhibit
10.7
This
Transition Services Agreement (this “Agreement”), dated as of
November 1, 2019 (the “Effective Date”), is made
by and between Aytu Bioscience, Inc., a Delaware
corporation (“Buyer”) and Cerecor,
Inc., a Delaware corporation (“Seller”). All capitalized
terms used herein (or in any schedule) but not defined herein have
the meanings given to them in the Purchase Agreement (defined
below).
Recitals
A. Buyer and Seller
are parties to an Asset Purchase Agreement, dated as of October 10,
2019, (the “Purchase
Agreement”), under which Buyer agreed to purchase from
Seller certain assets of Seller used in the operation of the
Business.
B. In connection
with the Purchase Agreement and transactions contemplated thereby,
and for purposes of easing the transition of the Business to Buyer
and minimizing interruptions to the continuing operations of
Seller, the parties have agreed to enter into this Agreement for
the purpose of providing certain transition services to each
other.
Agreement
In
consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Buyer and Seller agree:
1. Transition
Services.
(a) Applicable
Transition Services. Upon the terms
and subject to the conditions contained herein and in the Schedules
hereto, Seller shall provide, or cause its Affiliates to provide,
to Buyer the services described on Schedule A-1 and Schedule A-3 (together with the
services described in the other provisions of this Agreement that
Seller is obligated to provide to Buyer, collectively, the
“Seller-Provided
Services”) and Buyer shall provide, or cause its
Affiliates to provide, to Seller the services described on
Schedule A-2 and
Schedule A-3
(together with the services described in the other provisions of
this Agreement that Buyer is obligated to provide to Seller
collectively, “Buyer-Provided Services,”
and together with the Seller-Provided Services, the
“Transition
Services,” it being understood that the services
described on Schedule
A-3 are mutual services that each party will provide to the
other). The parties agree to negotiate in good faith the provision
of any additional related services reasonably requested by Buyer to
be provided by Seller, or by Seller to be provided by Buyer,
including any applicable pricing. Any such additional services so
provided by Seller or Buyer, as applicable, shall constitute
Transition Services under this Agreement and be subject to this
Agreement as if fully set forth on Schedule X-0, Xxxxxxxx X-0, or Schedule A-3, as applicable,
beginning as of the commencement of such additional services.
During the first three (3) months following Closing, Buyer will
provide the Transition Services free of charge. Thereafter, Seller
will pay Buyer for any continuing Buyer-Provided Services related
to the continued commercialization of the Excluded Products at the
rate specified in Schedule A-2. The Transition Services provided by
Sellers will be free of charge throughout the term of this
agreement.
(b) Non-Assignable
Assets. In connection
with the Transition Services, the parties agree that Buyer and
Seller shall use, each at its own cost and expense, commercially
reasonable efforts to enter into such arrangements (such as
subleasing, sublicensing or subcontracting) to provide to the
parties the economic and, to the extent permitted under applicable
law, operational equivalent of the transfer to Buyer of those
Purchased Assets and Assumed Liabilities that cannot be transferred
to Buyer following the Closing, each as described on Schedule B hereto
(collectively, the “Non-Assignable Assets”).
To the extent permitted under applicable Law, Seller shall hold for
the benefit of Buyer, and pay to Buyer promptly upon receipt
thereof, such Purchased Assets and all income, proceeds and other
monies received by Seller to the extent related to such Purchased
Assets for the post-Closing period in connection with the
arrangements under this Agreement. Notwithstanding anything herein
to the contrary, the provisions of this Section 1(b) shall not apply to any
consent or approval required under any antitrust, competition or
trade regulation law.
(c) Excluded Assets. In connection
with the Transition Services, the parties agree that Buyer and
Seller shall use, each at its own cost and expense, commercially
reasonable efforts to enter into such arrangements (such as
subleasing, sublicensing or subcontracting) to provide to the
parties the economic and operational equivalent of the retention of
the Excluded Assets and Excluded Liabilities by Seller. To the
extent permitted by applicable Law, Buyer shall hold for the
benefit of Seller, and pay to Seller promptly upon receipt thereof,
such Excluded Assets and all income, proceeds, and other monies
received by Buyer to the extent related to such Excluded Assets for
the post-Closing period in connection with the arrangements under
this Agreement.
(d) Subcontracting
of Transition Services. Each party agrees
that Seller may, without Buyer’s consent, provide any or all
of such Seller-Provided Services, in whole or in part, directly or
through one or more of Seller’s Affiliates or third-party
subcontractors. Seller shall in all cases retain responsibility for
any Seller-Provided Services to be performed by any subcontractor
or any of its Affiliates. Each party agrees that Buyer may, without
Seller’s consent, provide any or all of such Buyer-Provided
Services, in whole or in part, directly or through one or more of
Buyer’s Affiliates or third-party subcontractors. Buyer shall
in all cases retain responsibility for any Buyer-Provided Services
to be performed by any subcontractor or any of its
Affiliates.
(e) Standards
for Transition Services. Except as
otherwise set forth on Schedule A-1, Seller shall
provide the Seller-Provided Services to Buyer in a commercially
reasonable manner reasonably consistent with how such
Seller-Provided Services were performed in the ordinary course by
Seller or its Affiliates regarding the Business prior to the
Closing Date. Except as otherwise set forth on Schedule A-2, Buyer shall
provide the Buyer-Provided Services to Seller in a commercially
reasonable manner as if Buyer were performing the services for its
own benefit.
(f) No Representations or
Warranties. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE
NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TRANSITION
SERVICES AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES
SHALL HAVE NO LIABILITY IN RELATION TO THE TRANSITION SERVICES
(EXCEPT IN THE CASE OF ANY BREACH OF CONFIDENTIALITY) FOR ANY
PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF THEY HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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(g) Key
Contacts. During the term
of this Agreement (including any extensions thereof), the parties
shall each appoint primary and secondary contacts for purposes of
coordinating the provision of Transition Services under this
Agreement. Each party shall provide the other party with the name
and contact information of a senior level employee who will serve
as the primary point of contact for such party regarding Transition
Services (referred to herein as the “Primary Employee” of
Seller or Buyer, respectively), and another senior level employee
to serve as a secondary point of contact for such party regarding
Transition Services and an alternative point of contact if the
Primary Employee is unavailable (referred to herein as the
“Secondary
Employee” of Seller or Buyer,
respectively).
(h) Cooperation.
The parties will cooperate, and will cause their respective
Affiliates, officers, employees, agents, and representatives to
cooperate, to provide such information, and to take such actions in
good faith and as may be reasonably required to assist each other
to implement or give effect to this Agreement.
(i) No
Assignment of Property or Rights. This Agreement
shall not constitute an assignment, sale or transfer of any
technology, third-party agreements, intellectual property, licensed
rights, or other property of Seller, Buyer or any of their
respective Affiliates.
(j) Additional Services.
Notwithstanding anything to the contrary herein, this Agreement
does not apply to the services that are expressly agreed to be
provided by, or the other obligations of, a particular party (or
any of its subsidiaries) pursuant to the Purchase Agreement or any
commercial agreement.
2. Access.
(a) To enable the
provision or obtain the benefit of the Transition Services, during
the Term each party will provide to the other party, their
Affiliates, employees and any third-party service providers or
subcontractors that perform the Transition Services, upon
reasonable advance notice and at reasonable business hours, with
access to the facilities of such party, in all cases to the extent
necessary for the parties to fulfill their obligations under this
Agreement. When on the property of a party or when given access to
any equipment or files owned or controlled by such party, the other
party shall conform to (and its access shall be subject to) the
policies and procedures of such party concerning health, safety and
security made known to the other party in advance and such other
party shall cause its Affiliates, employees, and third-party
subcontractors to do likewise.
(b) During the Term,
Seller shall provide Buyer with reasonable access (which shall not
unreasonably interfere with the business of Seller), upon
reasonable written notice and during normal business hours, to the
management and other personnel of Seller for the purpose of (i)
discussing all reasonable inquiries regarding the Purchased Assets
or the Business and (ii) providing such other assistance as Buyer
may reasonably request related to the sale, conveyance, delivery,
transfer and assignment of the Purchased Assets
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3. Grant of License.
(a) Seller
hereby grants (on behalf of itself and its relevant Affiliates) to
Buyer a limited, royalty-free, world-wide, fully paid-up,
non-exclusive, sublicensable right and license to use, display, and
reproduce the marks “Avadel®”,
“Zylera™”, “Zylera
Pharmaceuticals®” and “Cerecor®” (in
each case, in word and/or logo form) (the “Trademarks”), if needed
in connection with the conduct of the Business by Buyer for the
period beginning on the Closing Date and ending on the date that is
the later of 180 days following the Closing Date or the expiration
of any currently labeled product. Buyer shall use commercially
reasonable efforts to develop its own marketing, promotional and
sales materials for the Purchased Assets as soon as reasonably
possible following the Closing Date. Buyer may use, display, and
reproduce the Trademarks for other purposes if Buyer submits a
written consent to Seller and Seller consents to the additional use
(which consent Seller may not withhold unreasonably).
(b) Buyer agrees that:
(i) Seller retains full ownership of the Trademarks and the
goodwill associated with the Trademarks; and (ii) Buyer shall
acquire no rights in the Trademarks other than those rights
expressly granted pursuant to and during the term of this
Agreement. In connection with its use of the Trademarks as
authorized herein, Buyer will use commercially reasonable efforts
to comply with any applicable written trademark usage guidelines of
which Seller has notified Buyer, and to assure that the quality of
Products commercialized by Buyer under the Trademarks will be
materially consistent with the quality of such Products as
commercialized by Seller prior to the Closing.
(c) Buyer agrees to
keep accurate information concerning transactions relating to the
use of the Trademarks. Seller and its authorized representatives
shall have the right to examine and copy such information upon at
least ten days’ prior written notice.
(d) THE TRADEMARKS ARE
LICENSED AS IS. SELLER MAKES NO WARRANTIES REGARDING THE
TRADEMARKS, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN
LAW, OR FROM A COURSE OF DEALING, OR USAGE OF TRADE INCLUDING, BUT
NOT LIMITED TO, THE WARRANTY OF TITLE, THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL
NOT HAVE ANY LIABILITY FOR ANY LOST PROFITS OR SAVINGS, OR FOR
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES RELATED TO THE
LICENSE OF THE TRADEMARKS HEREUNDER EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
(e) It is the
parties’ understanding and belief that following the Closing,
Seller and its Affiliates do not own or Control any Intellectual
Property Rights, other than the Trademarks, that would necessarily
be infringed by, or that are otherwise reasonably necessary for,
Buyer’s conduct of the Business (such Intellectual Property
Rights, “Necessary
IP”). Notwithstanding the foregoing, and without
implying any limitation in the scope or content of the Purchased
Assets, in the event and to the extent that any Necessary IP is
discovered to be owned or Controlled by Seller or its Affiliates
after Closing, upon Seller’s written consent (which consent
will not be unreasonably withheld), Seller will grant (on behalf of
itself and its Affiliates) to Buyer a limited, royalty-free,
world-wide, fully paid-up, non-exclusive, sublicensable right and
license to use, practice, and exploit such Necessary Retained IP
solely in connection with Buyer’s conduct of the Business for
a term to be reasonably determined by Seller.
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4. Force
Majeure.
(a) A party shall not
be deemed to have breached this Agreement for any failure of
performance attributable to acts, events or causes beyond such
party’s control to the extent that they prevent or delay in
whole or in part performance by such party, including war, riot,
rebellion, terrorism, civil disturbances, power failures, failure
of telephone lines and equipment, flood, storm, fire, earthquake,
or other acts of God or conditions or events of nature
(“Force Majeure
Events”). The obligations of each party under this
Agreement regarding any Transition Services shall be suspended
during the period and to the extent that a party is prevented or
hindered from providing such Transition Service, or a party is
prevented or hindered from receiving such Transition Service, due
to a Force Majeure Event.
(b) Buyer may, by
written notice to Seller, terminate any Seller-Provided Services
(in addition and without prejudice to its rights to terminate this
Agreement in accordance with Section 5 or Section 9) and perform such
Seller-Provided Services internally or engage one or more third
parties to provide such Seller-Provided Services during the
occurrence of a Force Majeure Event if after five (5) days (or a
shorter period if a lack of Seller-Provided Services beyond such
shorter period could substantially impair Buyer’s operations
or interests) Seller remains unable to perform such Seller-Provided
Services due to the Force Majeure Event. Each party shall
reasonably cooperate with the other party and any third parties
designated by Buyer to provide such replacement Seller-Provided
Services; provided,
that the other provisions of this Agreement shall remain in full
force and effect.
(c) Seller may, by
written notice to Buyer, terminate any Buyer-Provided Services (in
addition and without prejudice to its rights to terminate this
Agreement in accordance with Section 5 or Section 9) and perform such
Buyer-Provided Services internally or engage one or more third
parties to provide such Buyer-Provided Services during the
occurrence of a Force Majeure Event if after five (5) days (or a
shorter period if a lack of Buyer-Provided Services beyond such
shorter period could substantially impair Seller’s operations
or interests) Buyer remains unable to perform such Buyer-Provided
Services due to the Force Majeure Event. Each party shall
reasonably cooperate with the other party and any third parties
designated by Seller to provide such replacement Buyer-Provided
Services; provided,
that the other provisions of this Agreement shall remain in full
force and effect.
5. Events of
Default. A party will be
in default only if (a) such party commits a breach of any term
or condition of this Agreement and such party receives written
notice thereof from the other party; (b) there is a filing of
an involuntary case for the entry of relief against such party
under any bankruptcy, insolvency or similar Law for the relief of
debtors and such case remains undismissed for ninety (90) days
or more; (c) a trustee or receiver is appointed for such party
or its assets or any substantial part thereof; or (d) such
party files a voluntary petition under any bankruptcy, insolvency
or similar Law for the relief of debtors. Upon a default by a
party, the other party may terminate this Agreement by written
notice and/or pursue any and all remedies available to it under
applicable Law based on such default. Either party’s failure
to send a notice of default or to pursue legal remedies available
to it shall not constitute or be construed as a waiver or
acquiescence, and each party expressly reserves the right to
subsequently pursue such remedies for the same or any other
default, either of the same or different character. Notwithstanding
the foregoing, if a default occurs, prior to any party terminating
this Agreement and/or pursuing any and all remedies available to it
under applicable Law, the defaulting party shall have fifteen
(15) days after giving written notice of such default by the
non-defaulting party to cure such default.
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(a) Subject to the
exceptions set forth below in this Section 6(a), and further
subject to the provisions of Section 6(c), each party shall
not, and each party shall ensure that such party’s Affiliates
do not, disclose, directly or indirectly, nor use for any purpose
other than the provision or receipt of Transition Services, any
documents, work papers or other materials of a confidential or
proprietary nature (“Confidential
Information”) related to the other party or any of its
Affiliates and shall have all such Confidential Information kept
confidential in accordance with its past practices; provided, however, that such party may
disclose or use any such Confidential Information (a) that was
in the public domain at the time of its disclosure by the other
party or thereafter becomes part of the public domain by
publication or otherwise subsequent to the time of disclosure by
the other party under this Agreement, (b) that is
independently developed by the receiving party without use of the
other party’s Confidential Information, (c) that the
other Party has approved for unrestricted disclosure in writing,
(d) that is furnished to the receiving party by a third party
having the authority to disclose such Confidential Information and,
to the knowledge of the receiving party, the disclosure of such
Confidential Information by the third party to the receiving party
is not subject to a confidentiality obligation, or (e) that is
required to be included in any filings made with the U.S.
Securities and Exchange Commission (the “Commission”) pursuant to
the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended (which, for the avoidance of doubt, shall
include filing a copy of this Agreement with the Commission,
redacted to protect sensitive information to the extent requested
by either party and allowed by the Commission). Notwithstanding the
foregoing, if a party or its Affiliates becomes legally compelled
to disclose any such Confidential Information by any Governmental
Entity or if such party or any of its Affiliates is required to
disclose in order to avoid violating any Law, such party or its
Affiliates may disclose such Confidential Information but only
after, if applicable or relevant, it has used commercially
reasonable efforts to afford the other party, at such other
party’s sole cost and expense, the opportunity to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the Confidential Information required
to be disclosed; provided, however, that such party may
only disclose such Confidential Information to the extent necessary
to comply with applicable Law or regulation, or to enforce its
obligations under this Agreement.
(b) Upon the expiration
of the applicable Term (as defined below), upon the disclosing
party’s request, the receiving party shall promptly either
return, destroy or erase (including expunging all Confidential
Information from any computer, server or other device containing
such information) all Confidential Information (including all
copies, reproductions, summaries, analyses or extracts thereof or
based thereon) in the possession or control of the receiving party
or any of its representatives (and, in the case of destruction or
erasure, provide to the disclosing party a certificate addressed to
the disclosing party confirming such destruction or erasure).
Notwithstanding any such return, destruction or erasure of the
Confidential Information, the receiving part and its
representatives (a) may retain the Confidential Information to
comply with applicable law or bona fide internal record-keeping
policies and (b) shall not be required to erase or expunge any
Confidential Information residing on the receiving party’s
automatic electronic backup or archival systems to the extent
impracticable; provided, that the receiving
party and its representatives shall continue to be bound by the
obligations of confidentiality and use hereunder until the sooner
of the time such Confidential Information is returned or destroyed
in accordance herewith or the two year anniversary of the
expiration of the applicable Term.
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(c) The foregoing
provisions of this Section 6 will not be construed as
creating exceptions to, or otherwise limiting or diminishing, the
obligations and restrictions imposed upon Seller under Section 5.1
of the Purchase Agreement in relation to Confidential Information
as defined therein, nor as imposing any obligations or restrictions
upon Buyer, or limiting or diminishing Buyer’s rights, in
relation to Confidential Information as defined in Section 5.1 of
the Purchase Agreement. For clarity, however, Buyer hereby consents
to Seller’s use of relevant Confidential Information as
defined in Section 5.1 of the Purchase Agreement during the
applicable Term for the purposes of providing the Seller-Provided
Services and receiving the Buyer-Provided Services in accordance
with this Agreement.
7. Indemnification. Each party
agrees to indemnify, defend and hold the other party and its
officers, directors, agents, Affiliates, and their respective
successors and permitted assigns, harmless from and in respect of
any and all actual losses, damages, costs and reasonable expenses
(including, without limitation, reasonable legal expenses)
(individually a “Loss” and collectively,
“Losses”) that they may
incur arising out of or due to the breach of any covenant,
undertaking or other agreement of the indemnifying party contained
in this Agreement, or fraud or willful misconduct of the
indemnifying party, except that the parties shall have no liability
in relation to the Transition Services (except in the case of any
breach of confidentiality) for any punitive, exemplary, or
incidental damages or Losses even if they have been advised of the
possibility of such damages or Losses.
(a)
Each
party shall keep accurate and complete books and records relating
to the Transition Services in compliance with applicable Law and,
subject to Section
8(e) of this
Agreement, such party’s record management practices.
Following the termination of this Agreement, each party shall keep
accurate and complete books and records relating to the Transition
Services in compliance with applicable Law and, subject to
Section
8(e) of this
Agreement, such party’s record management
practices.
(b) Following the
Effective Date, each party shall afford, and will cause its
Affiliates to afford, to the other party and any of its Affiliates,
counsel, accountants or designated representatives, at such other
party’s expense, during normal business hours, the right to
examine and make copies of the books and records relating to the
Transition Services for such period as this Agreement is in effect
or for as long thereafter as required by applicable Law or any
rights or obligations of any party survives or to the extent that
such access may be required by the requesting party in connection
with (i) the preparation of financial statements, (ii) responding
to regulatory inquiries or other regulatory purposes, (iii) the
preparation of tax returns or in connection with any audit, amended
return, claim for refund or any proceeding with respect thereto,
(iv) the investigation, arbitration, litigation and final
disposition of any claims that may have been or may be made against
the party (or its Affiliates), as the case may be, in connection
with the party’s business or which such party (or its
Affiliates), as the case may be, may make with respect to the
Transition Services, (v) compliance with the party’s
respective obligations under this Agreement, and (vi) as the
parties otherwise mutually agree. Notwithstanding anything to the
contrary in the this Agreement, neither party will be required to
provide access to any information that is protected by
attorney-client privilege, attorney work product, or similar
theories of confidentiality.
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(c) If and to the
extent required by Section 1395(x)(v)(1)(I) of Title 42 of the
United States Code, until the expiration of four (4) years after
the furnishing of Transition Services under this Agreement, each
party shall make available to the Secretary of the U.S. Department
of Health and Human Services, the U.S. Comptroller General, or any
of their duly authorized representatives, upon written request, a
copy of this Agreement and such books, documents and records as are
necessary to verify the nature and extent of the costs incurred by
a party with respect to such Transition Services for which payment
may be made under Title XVIII or XIX of the United States Social
Security Act.
(d) If any party
carries out any of the duties of this Agreement through a
subcontract, with a value or cost of ten thousand dollars ($10,000)
or more over twelve (12) months with a related organization, such
subcontract shall contain a clause to the effect that until the
expiration of four (4) years after the furnishing of such
Transition Services pursuant to such subcontract, the related
organization shall make available, upon written request by the
Secretary of the U.S. Department of Health and Human Services or
the Comptroller General of the United States, or any their duly
authorized representatives, the subcontract and books, documents
and records of such organization that are necessary to verify the
nature and extent of the cost of Transition Services provided
pursuant to such subcontract.
(e) Each party will
not, and will cause its Affiliates to not, dispose of, alter or
destroy any such books and records relating to the Transition
Services except in accordance with each party’s respective
record retention policies or as otherwise provided in the Purchase
Agreement.
(a) Term. Except as otherwise
stated in Schedule
X-0, Xxxxxxxx
X-0, or Schedule
A-3 for any particular Transition Services (including the
18-month term in respect of the Buyer-Provided Services related to
the commercialization of Millipred), the initial term of this
Agreement shall commence on the Effective Date and end on the first
anniversary thereof, unless earlier terminated in accordance with
Section
5 above or
Section
9(b) below;
provided,
however, that if
either party wishes to extend the initial term for which it will
receive any of the Transition Services hereunder beyond the initial
term (as stated above or, where applicable, as specified in
Schedule X-0,
Xxxxxxxx X-0, or
Schedule A-3 for
the particular Transition Services), the parties shall, upon such
party’s request, enter into good faith negotiations at least
three (3) months prior to the termination of the initial term,
which initial term may then be extended upon mutual agreement for
such Transition Services for an additional period not to exceed
twelve (12) months from the scheduled initial expiration of the
initial term for such Transition Services (the foregoing time
periods, as the case may be, including any applicable extension,
referred to herein as the applicable “Term”).
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(b) Termination of Seller-Provided
Services. Any particular Seller-Provided Service may be
terminated by Buyer when it determines such Seller-Provided Service
is no longer needed; provided, that except as
otherwise provided in Schedule A-1, Buyer shall give Seller at
least fifteen (15) days’ prior written notice specifying the
date that such termination is to be effective (or such shorter
notice as may be agreed upon by Buyer and Seller). Notwithstanding
the foregoing, no prior notice period is required to terminate any
Seller-Provided Service for which the transition of such
Seller-Provided Service has been completed (that is, where Seller
has ceased providing such Seller-Provided Services in accordance
with Buyer’s confirmation that they are no longer needed or
are being performed by Buyer or a third party that it has engaged
directly), which termination shall be effective immediately upon
receipt of such notice by Buyer.
(c) Termination of Buyer-Provided
Services. Any particular Buyer-Provided Service may be
terminated by Seller when it determines such Buyer-Provided Service
is no longer needed; provided, that except as
otherwise provided in Schedule A-2, Seller shall give
Buyer at least fifteen (15) days’ prior written notice
specifying the date that such termination is to be effective (or
such shorter notice as may be agreed upon by Buyer and Seller).
Notwithstanding the foregoing, no prior notice period is required
to terminate any Buyer-Provided Service for which the transition of
such Buyer-Provided Service has been completed (that is, where
Buyer has ceased providing such Buyer-Provided Services in
accordance with Seller’s confirmation that they are no longer
needed or are being performed by Seller or a third party that it
has engaged directly), which termination shall be effective
immediately upon receipt of such notice by Seller.
10. Amendments
and Waiver. This Agreement
may not be amended, modified or supplemented in any manner, whether
by course of conduct or otherwise, except by written agreement
signed by each party. No failure or delay of either party in
exercising any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce
such right or power, or any course of conduct, preclude any other
or further exercise thereof or the exercise of any other right or
power. Any agreement by a party to any extension or waiver of any
provision of this Agreement will be valid only if set forth in an
instrument in writing signed by each party. A waiver by a party of
the performance of any provision hereof will not be construed as a
waiver of any other provision. THE PROVISIONS OF THIS AGREEMENT
SHALL IN NO WAY MODIFY OR AMEND, OR BE CONSTRUED TO MODIFY OR
AMEND, ANY TERMS OR CONDITIONS OF THE PURCHASE
AGREEMENT.
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11. Notices. All notices,
requests, demands, waivers and other communications required or
permitted to be given under this Agreement to any party hereunder
shall be in writing and shall be deemed duly given upon
(a) personal delivery, (b) confirmed delivery by a
standard overnight carrier or when delivered by hand or (c) five
(5) Business Days after the date mailed in the United States by
certified or registered mail, return receipt requested, postage
prepaid, addressed at the following addresses (or at such other
address for a party as shall be specified by notice given
hereunder):
(i)
if to Buyer,
to:
000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX
00000
Email:
xxxxxx@xxxxxxx.xxx
Attention: Xxxxx
Xxxxx, Chief Financial Officer
with a
copy (which shall not constitute notice) to:
Xxxxxx
& Whitney LLP
000 X.
Xxxx Xx., Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000
Email:
xxxxxx.xxxxx@xxxxxx.xxx
Attention: Xxxxx
Xxxxxx
(ii)
if to Seller,
to:
Cerecor,
Inc.
000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX
00000
Email:
xxxxxxx@xxxxxxx.xxx
Attention: Xxxxxx
Xxxxxx, Chief Financial Officer
with a
copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxx & Xxxxxx LLP
0000
Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX
00000
Email: xxxxxxxxx@xxxxxx.xxx;
xxxxxxxxx@xxxxxx.xxx
Attention: Xxx
Xxxxxxxx and Xxxxx Xxxxxxxx
or to
such other representative or at such other address as such party
may furnish to the other parties in writing.
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12. Interpretation.
When a reference is made in this Agreement to a Section or Schedule
such reference shall be to a Section or Schedule of this Agreement
unless otherwise indicated. The headings contained in this
Agreement or in any Schedule are for convenience of reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All words used in this Agreement
will be construed to be of such gender or number as the
circumstances require. All Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement
as if set forth herein. The word “including” and words
of similar import when used in this Agreement will mean
“including, without limitation,” unless otherwise
specified.
13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which when executed, shall be deemed to be an original and all
of which together will be deemed to be one and the same instrument
binding upon each of the parties hereto notwithstanding the fact
that each party is not signatory to the original or the same
counterpart. For purposes of this Agreement, facsimile signatures
and electronically delivered signatures shall be deemed
originals.
14. Entire
Agreement. This Agreement
(including the Schedules) constitutes the entire agreement
regarding Transition Services, and supersedes all prior written
agreements, arrangements, communications and understandings and all
prior and contemporaneous oral agreements, arrangements,
communications and understandings between the parties with respect
to the subject matter hereof; provided, however, that this Agreement
shall not supersede, modify or amend the Purchase Agreement in any
respect.
15. Severability.
If any term or other provision of this Agreement is finally
adjudicated by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced by any law or public policy,
all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
16. Governing
Law. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
(a) Each Party
irrevocably submits to the exclusive jurisdiction of the Delaware
Court of Chancery or in the event (but only in the event) that such
court does not have subject matter jurisdiction, in any federal
court within the State of Delaware, for the purposes of any suit,
action or other proceeding arising out of this Agreement. Each
Party agrees to commence any such action, suit or proceeding either
in the Delaware Court of Chancery or if such suit, action or other
proceeding may not be brought in such court for jurisdictional
reasons, in any federal court within the State of Delaware. Each
Party further agrees that service of any process, summons, notice
or document by the U.S. registered mail to such Party’s
respective address set forth above shall be effective service of
process for any action, suit or proceeding in Delaware with respect
to any matters to which it has submitted to jurisdiction in this
Section
17. Each Party
irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this
Agreement in (x) the Delaware Court of Chancery, and (y) any
federal court within the State of Delaware, and hereby and thereby
further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an
inconvenient forum.
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(b) EACH PARTY WAIVES
ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. Each Party (i) certifies
that no representative, agent or attorney of the other Party has
represented, expressly or otherwise, that such Party would not, in
the event of any action, suit or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other Party
has been induced to enter into this Agreement, by, among other
things, the mutual waiver and certifications in this Section 17(b).
18. Assignment.
Neither this Agreement, nor any rights hereunder, may be assigned
by any party (in whole or in part) without the prior written
consent of the other party hereto, except that Seller may assign
its rights to receive the Buyer-Provided Services to a third-party
purchaser of Seller’s rights and assets in respect of
Millipred upon Buyer’s prior written consent (which consent
shall not be unreasonably withheld, conditioned or delayed);
provided that any such assignment shall not result in a significant
increase in the service levels provided hereunder as compared to
historical levels (i.e., that service levels do not significantly
change as a result of such third-party purchase).
19. No
Third Party Beneficiaries. This Agreement is
for the sole benefit of the parties hereto and their successors and
permitted assigns, and nothing herein expressed or implied shall
give or be construed to give to any person, other than the parties
hereto and such successors and assigns, any legal or equitable
rights hereunder.
20. Independent Contractor. For all
purposes hereof, except as explicitly set forth herein, or as
necessary to provide the Transition Services, each party shall at
all times solely act as an independent contractor and Seller, on
the one hand, and Buyer, on the other hand, shall not be deemed an
agent, lawyer, employee, representative, joint venture or fiduciary
of one another, nor shall this Agreement or the Transition Services
or any activity or any transaction contemplated hereby, or any
commission or omission by any party, be deemed to create any
partnership, joint venture, agency or employment between the
parties or among their Affiliates.
21.
Dispute
Resolution. The Primary
Employee for each of Seller and Buyer shall work together in good
faith to promptly and fully resolve any disputes arising out of or
related to this Agreement or the relationship between the parties.
Any dispute hereunder which cannot be resolved by the Primary
Employee for each of Seller and Buyer within thirty (30) days may
be escalated by either party and in its reasonable discretion, to
an executive officer of each party empowered to resolve such
matter, which executive officers shall meet and attempt in good
faith to resolve such matter prior to pursuit of other
remedies.
22. Survival. Sections 1(f), 3(e), 6 (as it relates to
Confidential Information received during the Term), 7, 8, 11-21 and any schedule(s) thereto
shall survive the termination of this Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the
Effective Date.
|
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CERECOR
By:
Name:
Title:
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AYTU
BIOSCIENCE INC.
By:
Name:
Title:
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[Signature Page to Transition
Service Agreement]
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