Exhibit 2
ALLOCATION OF RESPONSIBILITIES AGREEMENT
This Agreement made this 31st day of January, 2000 between Advance
Biofactures Corporation, a New York corporation having offices at 00 Xxxxxx
Xxxxxx, Xxxxxxxx, XX 11563(hereinafter called "ABC"), Xxxxx Pharmaceutical
Company, a New Jersey corporation having offices at 0000 Xxxxxxxxxxx Xxxxx -
North, Mount Olive, NJ 07828-1234(hereinafter "KPC"), and Xxxxx & Nephew, Inc, a
Delaware corporation having offices at 00000 Xxxxxxx Xxxx, Xxxxx, XX 00000-0000
(hereinafter "S&N").
WITNESSETH:
WHEREAS, ABC and KPC are parties to an Agreement dated August 16, 1993 (the
"License Agreement") pursuant to which ABC granted to KPC an exclusive license
to market the Licensed Product (as defined in the License Agreement) in the
United States, including the Commonwealth of Puerto Rico, and Canada with the
right to sublicense upon prior written consent of ABC (the "Licensed Rights");
WHEREAS, pursuant to the terms of a Sublicense and Assignment Agreement, KPC
desires to grant a sublicense of the Licensed Rights to S&N for the period of
time during which ABC will be addressing certain regulatory issues raised by the
U. S. Food and Drug Administration ("FDA") related to the Licensed Product (the
"Compliance Program"), and S&N desires to receive such sublicense (the
"Sublicense");
WHEREAS, pursuant to the terms of a Sublicense and Assignment Agreement, KPC
desires to assign the Licensed Rights to S&N following FDA approval of the
Compliance Program, and S&N desires to receive such assignment (the
"Assignment");
WHEREAS, ABC and KPC are parties to a Sublicense Agreement dated December 13,
1999 (the "Sublicense Agreement"), which sets forth the conditions by which ABC
has consented to Xxxxx'x Sublicense;
WHEREAS, one condition of the Sublicense Agreement was that ABC and KPC meet to
determine the allocation between KPC, S&N, or both, of the rights, duties, and
responsibilities under the License Agreement (the "Allocation") for the period
during which the Sublicense shall be in effect, and for the period following the
Assignment; and
WHEREAS, ABC, KPC and S&N desire to memorialize the Allocation in this
Allocation Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, it
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is mutually agreed between the parties hereto as follows:
1. The following sets forth the Allocation. The first column, entitled "License
Agreement" shall refer to the Articles and Paragraphs in the License Agreement
having the same designation. The second column entitled "Sublicense Period"
shall indicate the party or parties which shall have duties or responsibilities
under the Article or Paragraph referenced in the first column during the period
when the Sublicense shall be in effect. The third column entitled "Assignment
Period" shall indicate the party or parties which shall have duties or
responsibilities under the Article or Paragraph referenced in the first column
following the Assignment.
License Sublicense Assignment
------- ---------- ----------
Agreement Period Period
--------- ------ ------
1A KPC S&N, without the right to sublicense except to a
subsidiary or affiliate
1B KPC and X&X X&X
0X XXX; provided however, that action or inaction S&N provided that the phrase "starting with the
by S&N shall be deemed the action or inaction of year 2001" shall be inserted after the phrase
KPC and provided further that the phrase "Product for any year" in line 10 of 2A of the
"starting with the year 2001" shall be inserted License Agreement.
after the phrase "Product for any year" in line
10 of 2A of the License Agreement.
2B KPC KPC, except S&N shall be substituted for KPC in
3A [Redacted] [Redacted]
3B KPC KPC
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3C KPC KPC
4A KPC KPC shall pay royalties to ABC; and S&N shall
provide information on Net Sales of the Licensed
Product.
4B KPC and S&N KPC and S&N shall each keep accurate records for
calculating royalties and shall make such records
available for examination. S&N shall confer with
ABC respecting sales and marketing of Licensed
Product.
5 N/A N/A
6 KPC and S&N KPC and S&N
7 KPC and S&N; provided, ABC shall seek permission S&N; provided, ABC shall seek permission from S&N
from KPC or S&N to reference or make copies of to reference or make copies of reports unless such
reports from the source of such reports unless reports have appeared in published literature.
such reports have appeared in published
literature.
8A KPC KPC
8B KPC with respect to payment for Collagenase KPC with respect to payment for Collagenase Powder
Powder and Services, as both terms are defined and Services and KPC's anticipated requirements of
in the License Agreement, used in Licensed Collagenase Powder for manufacture of new dosage
Product, and KPC's anti-cipated requirements of forms of Licensed Product. S&N with respect to
Collagenase Powder for manufacture of new dosage marketing new dosage forms of Licensed Products
forms of Licensed Product. S&N with respect to and one-time payment therefor.
marketing new dosage forms of Licensed Products
and one time payment therefor.
8C KPC KPC
8D KPC KPC
8E KPC KPC
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8F KPC KPC
8G KPC KPC
8H KPC KPC
8I KPC and S&N KPC and S&N
9 KPC KPC with respect to the supply of Licensed
Product, and S&N with respect to matters related
to the exclusive license.
10A KPC The License Agreement shall renew as of the date
that the Assignment is granted, and shall remain
in effect until August 16, 2013 (i.e.; the right
under this provision of KPC or S&N to terminate
the License Agreement at the end of the initial
ten year term shall be deemed waived). The term
of the License Agreement shall thereafter
automatically renew for an additional term of ten
(10) years; provided S&N may terminate the License
Agree-ment as of August 16, 2013 upon not less
than six (6) months prior written notice to ABC."
10B KPC and S&N; provided, however, that the words KPC and S&N; provided, however, that the words
"enzymatic pharmaceutical" shall be inserted "enzymatic pharmaceutical" shall be inserted after
after the word "another" in line 3 of 10B of the the word "another" in line 3 of 10B of the License
License Agreement. The owner of the Santyl(R) Agreement. The owner of the Santyl(R); trademark as
trademark as of the date of termination shall be of the date of termination shall be obligated to
obligated to assign such trademark to ABC. assign such trademark to ABC.
10C KPC In the event of a default by KPC or S&N which
could result in termination of the License
Agreement, ABC and the non-defaulting party shall
use their best efforts to avoid termination with
respect to the non-defaulting party, and shall
seek a commercially reasonable
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alternative means of achieving the main goals and
purposes of the License Agreement.
10D N/A N/A
11 KPC KPC and S&N
12A KPC KPC and S&N
12B KPC An assignment under the License Agreement by ABC,
KPC, or S&N shall require the prior written
consent of the other two parties.
13A KPC KPC
13B KPC KPC and S&N
14 N/A N/A
15 N/A N/A
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate originals by their duly authorized representatives.
ADVANCE BIOFACTURES CORPORATION XXXXX PHARMACEUTICAL COMPANY
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------- ----------------------
Title: Executive Vice President Title: President
------------------------ ---------
Date: January 31, 2000 Date: January 31, 2000
---------------- ----------------
XXXXX & NEPHEW, INC
By: /s/ Xxx Xxxxxx Xx.
----------------------
Title: President
----------------
Date: January 31, 2000
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