Termination of Litigation
Exhibit 10.1
Termination of Litigation
This Termination of Litigation agreement (this “Agreement”), dated as of January 2,
2008 (the “Effective Date”), is made by and among King Pharmaceuticals, Inc. (“King
Pharma”), a Tennessee corporation having its principal place of business at 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, King Pharmaceuticals Research and Development, Inc. (“King
R&D”), a Delaware corporation having its principal place of business at 0000 XxxxxxXxxxx Xxx,
Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx and CorePharma LLC, a New Jersey limited liability company having
its principal place of business at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (“Core”).
WHEREAS King Pharma, King R&D and Core are parties to a patent infringement lawsuit captioned
“Elan Pharmaceuticals, King Pharmaceuticals, Inc. and Xxxxx Pharma Inc. v. CorePharma LLC” Case No.
03-CV-2996, pending in the United States District Court for the Eastern District of New York before
Judge Xxxxx X. Xxxxxx (the “Lawsuit”);
WHEREAS, on July 24, 2002, Core filed with the FDA an Abbreviated New Drug Application
(“Core ANDA ,” as further defined below) with a statement pursuant to 21 USC §
355(j)(2)(A)(viii) (“Section viii Statement ,” as further defined below) for approval of a
generic 400 mg metaxalone product with a “carved-out” label and package insert from which certain
information relating to the bioavailability of metaxalone had been removed (“Section viii
Product ,” as further defined below);
WHEREAS, on January 24, 2003, Core changed its Section viii Statement to a certification under
21 USC § 355(j)(2)(A)(vii)(IV) (“Paragraph IV Certification”) and asserted that the generic
400 mg metaxalone product for which it was seeking approval, with a label and package insert
identical to that approved under King’s NDA No. 13-217 for Skelaxin®, (“Paragraph IV
Product”) did not infringe King’s Orange Book Listed patents and that such patents were invalid
and/or unenforceable;
WHEREAS, on March 7, 2003, in response to Core’s Paragraph IV Certification the Lawsuit was
initiated with respect to Core’s Paragraph IV Product, asserting that such product infringes United
States Patent Nos. 6,407,128 ( the “‘128 Patent” as further defined below) and 6,683,102 (
the “‘102 Patent” as further defined below);
WHEREAS, on September 5, 2003, Core asserted affirmative defenses and counterclaims in the
Lawsuit alleging inter alia that the ‘102 Patent and the ‘128 Patent are not infringed and are
invalid and/or unenforceable;
WHEREAS, on March 4, 2004, after the FDA issued a “Dear Applicant” letter indicating its
intention to approve a generic metaxalone product with a statement under 21 USC §
355(j)(2)(A)(viii) and a “carved-out” label and package insert analogous to Core’s Section viii
Product, Core requested the FDA to amend its Paragraph IV Certification for its 400 mg metaxalone
product to a Section viii Statement and again submitted a Section viii Statement;
WHEREAS King believes that the Core Section viii Product is both less safe and less
efficacious than Skelaxin®, as documented in the Citizen Petition filed by King, as well as similar
filings made to the FDA by third parties; and
WHEREAS the parties seek to settle the Lawsuit and certain ancillary matters relating to
Core’s Section viii Product and Paragraph IV Product, and King’s patents, including without
limitation withdrawing Core’s Section viii Statements, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
Parties covenant and agree as follows.
AGREEMENT
1. DEFINITIONS
“‘102 Patent” means United States Patent Number 6,683,102.
“‘128 Patent” means United States Patent Number 6,407,128.
“Act” means the United States Federal Food, Drug and Cosmetic Act, as amended.
“Affiliate” means any corporation, firm, partnership, or other entity that directly or
indirectly controls or is controlled by or is under common control with a Party. For purposes of
this definition, “control” means ownership, directly or through one or more Affiliates, of (a)
fifty percent (50%) or more of the shares or voting rights in case of a corporation or limited
company, (b) fifty percent (50%) or more of the shares of stock entitled to vote for the election
of directors, in the case of a corporation, (c) fifty percent (50%) or more of the equity or
controlling interests in the case of any other type of legal entity (including, without limitation,
joint ventures) or status as a general partner in any partnership, or (d) any other arrangement
whereby a Party controls or has the right to control the Board of Directors or equivalent governing
body of an entity.
“Applicable Law” means applicable United States (federal or state) and foreign laws,
rules, regulations, guidelines and standards, including, but not limited to, those of the FDA and
comparable foreign regulatory authorities, including without limitation the Act and the Medicare
Reform Act.
“Asserted Patents” means, collectively, the ‘102 Patent and the ‘128 Patent.
“At Risk Launch” means the marketing, distribution or sale by any Third Party of a
generic version of the Branded Product that is not authorized or licensed by King and that follows
(a) a District Court or other non-final, appealable trial court determination that the Asserted
Patents are invalid, unenforceable or not infringed or (b) the expiration of the 30 month stay
pursuant to 21 USC § 355(j) precluding the FDA from granting to such Third Party final marketing
approval for a generic version of the Branded Product.
“Branded Product” means the pharmaceutical product containing the active ingredient
metaxalone as marketed, or previously marketed, by King under the name Skelaxin® and as approved by
the FDA under New Drug Application Number 13-217 or any supplements or amendments thereto.
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“Core 400 mg Product” means a pharmaceutical product that (a) contains the active
ingredient metaxalone, in a 400 mg dosage strength and (b) bears labeling not materially different
from the labeling of the Branded Product as it exists on the Effective Date hereof, as such
pharmaceutical product may be approved by the FDA under a Core ANDA, including without limitation a
Paragraph IV Product.
“Core 400 mg Product Launch Date” means the earlier of (a) January 1, 2012 and (b) six
(6) months after the date of the first sale in the Territory of the first 400 mg generic version of
the Branded Product by a Third Party that is not an At Risk Launch, which sale is verified by King
in writing.
“Core ANDA” means the Abbreviated New Drug Application Number [40-722], filed by Core
with the FDA on December 27, 2005 and/or the Abbreviated New Drug Application Number [40-486],
filed by Core with the FDA on April 24, 2002.
“FDA” means the United States Food and Drug Administration or any successor
organization and all agencies under their direct control.
“FTC” means the Federal Trade Commission or any successor organization and all
agencies under their direct control.
“King” means and includes King Pharmaceuticals, Inc. (“King Pharma”) and King
Pharmaceuticals Research and Development, Inc. (“King R&D”), the latter formerly known as
Xxxxx Pharma, Inc.
“King Patent Rights” means and includes the Asserted Patents together with all present
and future patents and patent applications which claim priority to such patents; and all issuances,
registrations, divisions, continuations, continuations-in-part, renewals, reexamination
certificates, reissues, continued prosecution applications, extensions, substitutions,
nationalizations of such patents; and any and all other patents and patent applications that are
(a) solely owned by King during the term of this Agreement or (b) otherwise licensed-in by King
during the term of this Agreement with respect to which King has a right to grant a sublicense to
Core on the terms and conditions of this Agreement, in each case only to the extent that such
patents and patent applications would otherwise be infringed by the manufacture, use, offer for
sale, sale or importation of the Core 400 mg Product.
“Medicare Reform Act” means the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, Pub. L. Xx. 000-000, Xxxxx XX, Xxxxxxxx X, 000 Xxxx. 0000, 2461-64
(2003).
“Party” or “Parties” means King and Core.
“Section viii Statement” means any statement filed at any time by Core, its Affiliate
or any Third Party under 21 USC § 355(j)(2)(A)(viii) in conjunction with its ANDA seeking marketing
approval from the FDA with respect to a label for a generic metaxalone product, in any dosage
strength, from which information described or claimed in the Asserted Patents or the King Patent
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Rights, including without limitation information relating to the bioavailability of
metaxalone, has been carved out.
“Section viii Product” means any generic metaxalone product, in any dosage strength,
for which Core, its Affiliate or any Third Party has filed or files a Section viii Statement.
“Term” has the meaning set forth in Section 7.1.
“Territory” means the United States.
“Third Party” means any person other than a Party or an Affiliate of a Party.
2. DISMISSAL TERMS
2.1 Dismissal. Within five (5) business days of the execution hereof by all Parties
hereto, the Parties will jointly file a stipulation of dismissal in the form attached hereto as
Exhibit A with the United States District Court for the Eastern District of New York, dismissing
all of King’s claims and all of Core’s counterclaims in the Lawsuit without prejudice.
2.2 Release by King. Effective beginning upon the date on which Core is permitted to
file a certification pursuant to 21 USC § 355(j)(2)(A)(vii)(IV) in connection with the Core 400 mg
Product, pursuant to Section 2.5 hereof, King on behalf of itself, its attorneys, administrators,
successors, heirs and assigns, hereby releases and forever discharges Core, its current and former
directors, officers, principals, employees, attorneys, agents, shareholders, predecessors,
successors, assigns, parent companies, subsidiaries, divisions and Affiliates, from all claims,
demands, assessments, agreements, actions, suits, causes of action, damages, injunctions,
restraints and liabilities, of whatever kind or nature, in law, equity or otherwise, whether now
known or unknown or which have ever existed or that may now exist, which King has, has had or may
have against any one or more of them arising out of, or related to: (a) the Lawsuit and (b) any
alleged infringement of the King Patent Rights by virtue of the manufacture, use, offer for sale,
sale or importation of the Core 400 mg Product in accordance with the terms and conditions of this
Agreement, provided, however, that nothing herein shall constitute a release of any obligations of
Core under this Agreement or a release of claims under the King Patent Rights unrelated to the Core
400 mg Product.
2.3 Release by Core. Effective beginning upon the date on which Core is permitted to
file a certification pursuant to 21 USC § 355(j)(2)(A)(vii)(IV) in connection with the Core 400 mg
Product, pursuant to Section 2.5 hereof, Core on behalf of itself, its attorneys, administrators,
successors, heirs and assigns, hereby releases and forever discharges King, its current and former
directors, officers, principals, employees, attorneys, agents, shareholders, predecessors,
successors, assigns, parent companies, subsidiaries, divisions and Affiliates, from all claims,
demands, assessments, agreements, actions, suits, causes of action, damages, injunctions,
restraints and liabilities, of whatever kind or nature, in law, equity or otherwise, whether now
known or unknown or which have ever existed or that may now exist, which Core has, has had or may
have against any one or more of them arising out of, or related to: (a) the Lawsuit and (b) any
alleged affirmative defense or counterclaim against the King Patent Rights related to the
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Core 400 mg Product, provided, however, that nothing herein shall constitute a release of any
obligations of King under this Agreement or a release of claims or defenses against King Patent
Rights unrelated to the Core 400 mg Product.
2.4 FTC Filings. Within ten (10) days of the execution hereof by all Parties hereto,
this Agreement shall be filed by each Party with the FTC and with federal and state governmental or
regulatory authorities to the extent required by Applicable Law.
2.5 Withdrawal of Section viii Statements. Within seven (7) business days of the
execution hereof by all Parties hereto, Core shall withdraw the Section viii Statement filed with
the Core ANDA in connection with the Core 400 mg Product and shall, as soon as reasonably
practicable, file a certification pursuant to 21 USC § 355(j)(2)(A)(vii)(III) in connection with
the Core 400 mg Product. Core agrees that it shall not, during the Term of this Agreement, file any
Section viii Statement in connection with the Core ANDA or the Core 400 mg Product. With respect
to the Core 400 mg Product, Core shall have the right to file a certification pursuant to 21 USC §
355(j)(2)(A)(vii)(IV) upon the earlier of (a) July 1, 2011 or (b) the date of the first sale in the
Territory of the first 400 mg generic version of the Branded Product by a Third Party that is not
an At Risk Launch.
3. CORE 400 mg PRODUCT
3.1 License. Effective beginning upon the Core 400 mg Product Launch Date and
continuing through the Term, King hereby grants to Core a non-exclusive, personal, non-transferable
and, except as set forth in Section 8.6 hereof, non-assignable license under the King Patent Rights
to make, use, offer for sale, sell and import the Core 400 mg Product in the Territory, expressly
excluding any Section viii Products.
3.2 Marking. Core shall place in a conspicuous location on the packaging of the Core
400 mg Product a patent notice and shall indicate “Licensed — United States Patent Nos. 6,407,128
and 6,683,102.” King shall provide Core written notice of additional patent numbers of any valid,
enforceable and unexpired patents within the King Patent Rights covering the Core 400 mg Product
when issued.
3.3 Sublicensing. Core may not grant any sublicenses under the King Patent Rights or
allow any Third Party to practice same or to manufacture, use, offer for sale, sell or import the
Core 400 mg Product without obtaining the prior written approval of King.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of King
(a) Corporate Power. King Pharma is organized and validly existing under the laws of
the State of Tennessee, King R&D is organized and validly existing under the laws of the State of
Delaware, and each has full corporate power and authority to enter into this Agreement and to carry
out the provisions hereof.
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(b) Due Authorization. King is duly authorized to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) Binding Agreement. This Agreement is a legal and valid obligation binding upon
King and enforceable in accordance with its terms. The execution, delivery and performance of this
Agreement by King does not conflict with any agreement, instrument or understanding, oral or
written, to which King is a party or by which it may be bound, nor violate any material law or
regulation of any court, governmental body or administrative or other agency having jurisdiction
over it.
4.2 Representations and Warranties of Core.
(a) Corporate Power. Core is organized and validly existing under the laws
of New Jersey and has full corporate power and authority to enter into this Agreement and to carry
out the provisions hereof.
(b) Due Authorization. Core is duly authorized to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) Binding Agreement. This Agreement is a legal and valid obligation binding upon
Core and enforceable in accordance with its terms. The execution, delivery and performance of this
Agreement by Core does not conflict with any agreement, instrument or understanding, oral or
written, to which it is a party or by which it may be bound, nor violate any material law or
regulation of any court, governmental body or administrative or other agency having jurisdiction
over it.
(d) Absence of Fraud. Core has not committed fraud in relation to the filing of
either of the Core ANDAs or used unfair methods of competition in connection with any such filings,
including without limitation in connection with any data supplied by Core to the FDA. The Parties
acknowledge and agree that a breach of this representation is not subject to cure and King shall
have an immediate right to terminate this Agreement in the event that (i) the FDA or any other
regulatory authority (x) files an enforcement action in U.S. District Court, (y) files an
administrative complaint in an enforcement action before any regulatory authority including without
limitation any request to withdraw or suspend any Core ANDA, or (z) issues a letter imposing the
FDA’s Application Integrity Policy or any provision of the Act relating to fraud, bribery or deceit
that alleges that Core has committed such fraud or unfair method of competition or (ii) a court of
competent jurisdiction in an action brought by any person alleging that Core has committed such
fraud or unfair method of competition shall have issued an order, decree or ruling granting
judgment against Core or denying any motion to dismiss by Core or other finding that Core has
committed such fraud or unfair method of competition. The Parties agree that the filing by Core of
a certification under 21 USC § 355(j)(2)(A)(vii)(III), pursuant to and in accordance with Section
2.5 hereof, shall not, in and of itself, constitute a breach of any representation or warranty
delivered by Core hereunder or by Core to King pursuant to any agreement between the Parties in
effect on the Effective Date hereof.
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5. INDEMNIFICATION
5.1 Indemnification by King. King agrees to indemnify, defend and hold Core harmless
from and against all liability, demands, damages, expenses and losses, of any kind or nature
whatsoever, arising from (a) the material inaccuracy or breach of any representation or warranty of
King contained in this Agreement or (b) the breach of any covenant or other agreement of King in
this Agreement, except, in each case, to the extent liability is based on a breach of contract,
negligent act or omission, or intentional misconduct by Core or its Affiliates.
5.2 Indemnification by Core. Core agrees to indemnify, defend and hold King harmless
from and against all liability, demands, damages, expenses and losses, of any kind or nature
whatsoever, arising from (a) the material inaccuracy or breach of any representation or warranty of
Core contained in this Agreement; (b) the breach of any covenant or other agreement of Core in this
Agreement, except, in each case, to the extent liability is based on a breach of contract,
negligent act or omission, or intentional misconduct by King or its Affiliates.
6. DISCLAIMER; LIMITATIONS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
PRECEDING REPRESENTATIONS AND WARRANTIES ARE THE PARTIES’ ONLY REPRESENTATIONS AND WARRANTIES
CONCERNING THE LAWSUIT AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED.
7. TERM AND TERMINATION
7.1 Term. Unless earlier terminated as set forth in Section 7.2, this Agreement will
continue in effect until the expiration of the last to expire of the Asserted Patents (the
“Term”).
7.2 Termination. This Agreement may only be terminated as follows:
(a) upon mutual written agreement of King and Core; or
(b) by King or Core upon three (3) months’ prior written notice if the other is in material
breach of this Agreement and fails to cure that breach within such three (3) month period; or
(c) by King or Core, at its sole and exclusive option, in the event that (i) any injunction or
other order shall have been entered or enforced by any court or governmental or regulatory
authority of competent jurisdiction making illegal, or otherwise prohibiting, the consummation of
any matter or transaction contemplated by this Agreement, (ii) any injunction or enforcement action
shall be pending or threatened by or before any governmental or regulatory authority against any
Party to this Agreement seeking to restrain or materially and adversely alter the transactions
contemplated by this Agreement or (iii) a decision that all claims of the Asserted Patents are
invalid or unenforceable is entered by a court of competent jurisdiction from which decision no
appeal (other than a petition for certiorari) has been or can be taken in an infringement case or
declaratory judgment action.
7.3 Survival. The terms of Articles 1, 2, 4, 5, 6 and 8, and this Section 7.3, will
survive any expiration or termination of this Agreement provided, however, that Sections 2.2 and
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2.3 of this Agreement shall survive the termination of this Agreement only if terminated
pursuant to Section 7.2(a), if terminated pursuant to Section 7.2(b) by Core for King’s material
breach, or if terminated pursuant to Section 7.2(c)(iii), and such sections shall not survive any
other termination of this Agreement.
8. MISCELLANEOUS
8.1 Public Announcements. No Party nor any Affiliate of any Party will make any
publicity releases, interviews, or other dissemination of information concerning this Agreement or
its terms, or any Party’s or its Affiliates’ performance hereunder, to communication media,
financial analysts, or others without the approval of the other Parties, which approval will not
unreasonably be withheld. Any Party may, upon notice to the other Parties and after providing the
other Parties with the opportunity to comment, to the extent practicable, make any disclosure in
filings with regulatory agencies as required by law or applicable court order.
8.2 Force Majeure. No Party nor any Affiliate of any Party will be liable for any
default or delay in such Party’s or its Affiliate’s performance if such default or delay is caused
by an event beyond the reasonable control of such Party or its Affiliate, including, but not
limited to: act of God; war or insurrection; civil commotion; destruction of essential facilities
or materials by earthquake, fire, flood or storm; labor disturbance; epidemic; or other similar
event; provided, however, that the Party or Affiliate so affected will give prompt notice of such
event to the other Parties to this Agreement, and will use its commercially reasonable efforts to
avoid, remove or alleviate such causes of nonperformance and will continue performance hereunder
with the utmost dispatch whenever such causes are removed.
8.3 Entire Agreement. This Agreement and stipulation of dismissal in the form
attached hereto as Exhibit A (which is herein incorporated by reference), constitute the entire
agreement between the Parties and the Affiliates of each pertaining to the subject matter hereof,
and this Agreement supersedes any other agreements, understandings, promises and representations,
whether written or oral, between the Parties and such Affiliates relating to the same subject
matter save for where otherwise expressed in this Agreement. No agent of any Party or any of its
Affiliates is authorized to make any representation, promise, or warranty not contained in this
Agreement.
8.4 Amendment and Waiver. This Agreement may only be amended by the Parties in
writing, making specific reference to this Agreement; provided that the same is signed by all
Parties. No course of dealing between the Parties and any of their Affiliates or failure by any
Party or any Affiliate thereof to exercise any right or remedy hereunder will constitute an
amendment to this Agreement or a waiver of any other right or remedy or the later exercise of any
right or remedy.
8.5 Governing Law. This Agreement will be construed in accordance with the laws of
the State of New York, without regard to any choice of law provisions.
8.6 Assignment. No Party may assign any right or obligation hereunder without the
written consent of the other Parties, such consent not to be unreasonably withheld; provided that
each Party may assign this Agreement and the rights, obligations, and interests of such Party, in
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whole or in part, to any of its Affiliates (for so long as they remain Affiliates) or to any
Third Party that succeeds to all or substantially all of a Party’s business or assets relating to
this Agreement, whether by sale, merger, operation of law, or otherwise, or to one or more
financial institutions providing financing to such Party, pursuant to the terms of the relevant
security agreement, and, upon the occurrence of any such succession, will make such assignment;
further provided that such assignee or transferee promptly agrees in writing to be bound by the
terms and conditions of this Agreement. This Agreement will be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted assigns. Any attempted
assignment in violation of this provision will be void and of no effect.
8.7 Nature of Agreement. In operating under the Agreement, each Party will act
independently and this Agreement will not be construed as creating any partnership, joint venture
or incorporated business entity. Neither Party will have any authority to incur any liability or
obligation whatsoever on behalf of the other.
8.8 Notice. Any notice, demand, waiver, consent, approval or other communication
which is required or permitted to be given to any Party under this Agreement will be in writing,
will specifically refer to this Agreement, and will be effective on receipt, as evidenced in
writing, when given by registered airmail or certified mail, postage prepaid, or overnight courier,
and addressed, unless otherwise specified in writing, to the addresses of the Parties described
below, and effective upon sending if sent by facsimile confirmed by a
written transmission report:
If to King
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax:
Attention: General Counsel
Xxxxxxx, XX 00000
Fax:
Attention: General Counsel
copy to:
King Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Fax:
Attention: General Counsel
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Fax:
Attention: General Counsel
and copy to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax:
Attention: F. Xxxxxxx Cerrito, Esq.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax:
Attention: F. Xxxxxxx Cerrito, Esq.
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If to Core:
CorePharma LLC
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention:
CorePharma LLC
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention:
copy to:
Xxxx, Xxxx & Xxxxx LLP
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone:
Facsimile:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone:
Facsimile:
8.9 Severability. In the event any portion of this Agreement will be held illegal,
void or ineffective, the remaining portions hereof will remain in full force and effect. If any of
the terms or provisions of this Agreement are in conflict with any applicable statute or rule of
law, then such terms or provisions will be deemed inoperative to the extent that they may conflict
therewith and will be deemed to be modified to conform with such statute or rule of law, and the
remaining portions hereof will remain in full force and effect. In the event that the terms and
conditions of this Agreement are materially altered as a result of this Section 8.9, the Parties
will renegotiate the terms and conditions of this Agreement to resolve any inequities.
8.10 Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be an original and all of which will constitute together the same
instrument.
8.11 No Party is the Drafter. This Agreement shall be deemed to have been mutually
prepared by the Parties hereto and shall not be construed against any of them solely by reason of
authorship.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Termination of Litigation as of
the date first above written.
| KING PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Signature | ||||
| Xxxxx Xxxxxxxx | ||||
| Print Name | ||||
| President and CEO | ||||
| Title | ||||
| KING PHARMACEUTICALS RESEARCH AND DEVELOPMENT, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Signature | ||||
| Xxxxx Xxxxxxxx | ||||
| Print Name | ||||
| President and CEO | ||||
| Title | ||||
| CorePharma LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Signature | ||||
| Xxxxxxx X. Xxxxx | ||||
| Print Name | ||||
| CEO | ||||
| Title | ||||
ELAN PHARMACEUTICALS, INC., et al.
|
) ) |
|||||
Plaintiff/Counterclaim
|
) | |||||
Defendants,
|
) | 03-CV-2996 | ||||
v.
|
) | |||||
| ) | (DGT/RLM) | |||||
| ) | ||||||
COREPHARMA, LLC,
|
) | |||||
| ) | ||||||
Defendant/Counterclaim
|
) | |||||
Plaintiff.
|
) |
STIPULATION OF DISMISSAL WITHOUT PREJUDICE
Pursuant to Rule 41(a)(1)(ii), Fed. R. Civ. P., IT IS HEREBY STIPULATED AND AGREED, by and
between the parties, through their undersigned counsel of record, that this action be and hereby is
voluntarily dismissed in its entirety without prejudice, including all claims and counterclaims by
and against all parties arising out of the pleadings in this action. Each party shall bear its own
attorneys’ fees and costs.
Dated this 2nd day of January, 2008.
Respectfully submitted,
One of the Attorneys for
|
One of the Attorneys for | |||
Plaintiff Elan Pharmaceuticals, Inc.
|
King Pharmaceuticals, Inc., | |||
| Xxxxx Pharma Inc., and | ||||
Xxxxx X. Xxxxxx
|
King Pharmaceuticals Research and Development | |||
Xxxx X. Xxxxxxxx |
||||
FINNEGAN, HENDERSON, FARABOW,
|
F. Xxxxxxx Cerrito (FC 4216) | |||
XXXXXXX & DUNNER, L.L.P.
|
Xxxx X. Xxxxxxx (JN 0805) | |||
000 Xxx Xxxx Xxxxxx, X.X.
|
XXXXX DAY | |||
Xxxxxxxxxx, X.X. 00000-0000
|
000 Xxxx 00xx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
One of the Attorneys for |
||||
Plaintiff Corepharma, LLC |
||||
Xxxxxxxx X. Xxxxxxxx (PT 9509) |
||||
Xxxxxxxx X. Xxxxxxxxxxx (DH 0955) |
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XXXXXX XXXXXX LLP |
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0000 Xxxxx Xxxxx |
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Xxxxxxx, Xxxxxxxx 00000 |
||||
Xxxx X. Xxxxx (BJ 6415) |
||||
XXXXXX XXXXXX LLP |
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000 Xxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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3
ELAN PHARMACEUTICALS, INC., et al.
|
) ) |
|||||
Plaintiff/Counterclaim
|
) | |||||
Defendants,
|
) | 03-CV-2996 | ||||
v.
|
) | |||||
| ) | (DGT/RLM) | |||||
| ) | ||||||
COREPHARMA, LLC,
|
) | |||||
| ) | ||||||
Defendant/Counterclaim
|
) | |||||
Plaintiff.
|
) |
ORDER FOR DISMISSAL
In view of the stipulation of the parties, and for good cause,
IT IS HEREBY ORDERED, that the above-identified action is dismissed without prejudice,
pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), with each party to bear its own
attorneys’ fees and costs.
Dated: |
||
| Xxx. Xxxxx X. Xxxxxx | ||
| U.S. District Court Judge |
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