SETTLEMENT AGREEMENT
Exhibit 10.16.2
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[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. portions.
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This Settlement Agreement (the “Agreement”) is made and entered into as of January 21, 2011 (the “Settlement Date”), by and between Impax Laboratories, Inc., a Delaware corporation, (“Impax”) and Medicis Pharmaceutical Corp., a Delaware corporation (“Medicis”). Impax and Medicis are each referred to as a “Party” and collectively referred to as the “Parties.”
RECITALS
WHEREAS, Impax has asserted various claims and causes of action against Medicis in an action captioned Impax Laboratories, Inc. v. Medicis Pharmaceutical Corp., Case No. cv 2010-022735 (the “Litigation”), which is pending in the Superior Court of Maricopa County, Arizona (the “Court”);
WHEREAS, Medicis has asserted various counterclaims and causes of action against Impax in the Litigation;
WHEREAS, Medicis and Impax both deny any wrongdoing or liability;
WHEREAS, to avoid the expense of further litigation, and without any admission of wrongdoing or liability, the Parties desire to settle the Litigation on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Dismissal Order. [***], the Parties shall file a notice of settlement with the Court. [***], the Parties shall file with the Court a Stipulation and Order, in the form attached as Exhibit A, dismissing the Litigation with prejudice, with each side to bear its own costs and attorneys’ fees.
2. [***]
3. [***]
4. No Liability. [***].
5. Amendments.
5.1 That certain Joint Development Agreement entered into between the Parties and dated November 26, 2008 (as amended, the “JDA”) is hereby amended by replacing the first sentence of Section 6.3 of the JDA with the following sentence:
“Subject to the terms and conditions of this Agreement, within sixty (60) days following the end of each calendar quarter, Impax shall pay to Medicis [***].”
5.2 The Joint Development Agreement is hereby further amended by replacing the first sentence of Section 6.4 of the JDA with the following sentence:
“Subject to the terms and conditions of this Agreement, Medicis shall pay to Impax [***].”
5.3 The Joint Development Agreement is hereby further amended by replacing the first sentence of Section 6.5 of the JDA with the following sentence:
“Subject to the terms and conditions of this Agreement, Medicis shall pay to Impax [***].”
6. Confidentiality. The Parties agree that, except as otherwise may be required by applicable laws, regulations, rules or orders, no information concerning this Agreement shall be made public by either Party without the prior written consent of the other.
7. No Prior Transfer. The Parties hereby mutually represent and warrant that there has been no assignment, sale or other transfer or disposition of any interest in any of the Claims.
8. Due Authorization. The Parties represent and warrant that the individuals signing this Agreement on their behalf are duly authorized and fully competent to do so.
9. Assignment, Predecessors, Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns.
10. Construction. The Parties hereby mutually acknowledge and represent that they have been fully advised by their respective legal counsel of their rights and responsibilities under this Agreement, that they have read, know and understand completely the contents of this Agreement, and that they have voluntarily executed the same. The Parties further mutually acknowledge that they have had input into the drafting of this Agreement and that, accordingly, in any construction to be made of the Agreement, it shall not be construed for or against any party, but rather shall be given a fair and reasonable interpretation, based on the plain language of the Agreement and the expressed intent of the Parties.
11. Entire Agreement. The Parties acknowledge that this Agreement sets forth the entire agreement and understanding of the Parties and supersedes all prior written or oral agreements or understandings with respect to the subject matter hereof. No modification of any of the terms of this Agreement, or any amendments thereto, shall be deemed to be valid unless in writing and signed by an authorized agent or representative of both parties hereto. No course of dealing or usage of trade shall be used to modify the terms and conditions herein. This Agreement shall be binding on each of Impax and Medicis and their respective permitted successors and assigns. Except as expressly set forth herein, the License Agreement and JDA shall remain in full force and effect in accordance with their respective terms.
12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that telecopied or PDF copies of signatures will be sufficient, with original signature pages to be supplied and exchanged at a later date.
13. Governing Law. In any action brought regarding the validity, construction and enforcement of this Agreement, it shall be governed in all respects by the laws of the State of Arizona, without regard to the principles of conflicts of laws. The federal and state courts in the State of Arizona shall have jurisdiction over the parties hereto in all matters arising hereunder and the parties hereto agree that the venue with respect to such matters will be a state or federal court in the State of Arizona.
14. Waiver of Claims and Defenses. The Parties agree that this Agreement shall not be subject to any claim of duress, mistake of law or mistake of fact, and that it expresses the full and complete settlement of the Parties.
IN WITNESS WHEREOF, the Parties have fully executed and delivered this Settlement Agreement as of the day and year first written above.
IMPAX LABORATORIES, INC.
| By: |
/s/ Xxxxx Xxx
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| Name: |
Xxxxx Xxx
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| Title: |
President & CEO
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MEDICIS PHARMACEUTICAL CORP.
| By: |
/s/ Xxxxxxx X. Xxxxxxxx
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| Name: |
Xxxxxxx X. Xxxxxxxx
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| Title: |
EVP, CFO & Treasurer
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Exhibit A
Xxxxxxxx Xxx Refo (#017032)
Xxxxx Xxxxxxxxxxx (#025578)
Xxxxx & Xxxxxx LLP
000 X. Xxx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
xxxxx@xxxxx.xxx
xxxxxxxxxxxx@xxxxx.xxx
Of Counsel:
Xxxxxx X. Xxxxxx (NY Bar No. 2214138)
Xxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxx, LLP
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx
Xxxxxx X. Xxxxxxxxx (Mass. Bar No. 180690)
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxxxxx@xxxx.xxx
Xxxxxxxx Xxxxxxxxx
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxx.xxxxxxxxx@xxxx.xxx
Attorneys for Defendant Medicis Pharmaceutical Corp.
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
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Impax Laboratories, Inc.,
Plaintiff,
v.
Medicis Pharmaceutical Corp.,
Defendant.
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No. CV 2010-022735
STIPULATION FOR DISMISSAL
WITH PREJUDICE
(Assigned to the Xxxxxxxxx Xxxx X.
Xxxxxxxx)
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Plaintiff Impax Laboratories, Inc. and Defendant Medicis Pharmaceutical Corp., by and through counsel undersigned, stipulate and agree that this matter shall be dismissed with prejudice, each party to bear its own costs and attorneys’ fees.
DATED this ___ day of January 2011.
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XXXXX & XXXXXX L.L.P.
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MARISCAL, WEEKS, XXXXXXXX &
XXXXXXXXXXX, P.A.
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By
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/s/Xxxxxxxx Xxx Refo
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Xxxxxxxx Xxx Refo
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Xxxxx X. Kszywienski
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By
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/s/Xxxxx X. Xxxx (with permission)
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One Arizona Center
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Xxxxxxx X. Xxxxxxxx
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400 X. Xxx Xxxxx
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Xxxxx X. Xxxx
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Xxxxxxx, XX 00000-0000
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0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxxxx for Defendant
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Xxxxxxx, Xxxxxxx 00000-0000
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Attorney for Plaintiff
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MAILED this ____ day of January 2011 to:
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxx
Mariscal, Weeks, XxXxxxxx & Xxxxxxxxxxx PA
0000 X. Xxxxxxx #000
Xxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx & Van Nest LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attorneys for Plaintiff Impax Laboratories, Inc.
Xxxxxxxx Xxx Refo (#017032)
Xxxxx Xxxxxxxxxxx (#025578)
Xxxxx & Xxxxxx LLP
000 X. Xxx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
xxxxx@xxxxx.xxx
xxxxxxxxxxxx@xxxxx.xxx
Of Counsel:
Xxxxxx X. Xxxxxx (NY Bar No. 2214138)
Xxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxx, LLP
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx
Xxxxxx X. Xxxxxxxxx (Mass. Bar No. 180690)
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxxxxx@xxxx.xxx
Xxxxxxxx Xxxxxxxxx
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxx.xxxxxxxxx@xxxx.xxx
Attorneys for Defendant Medicis Pharmaceutical Corp.
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
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Impax Laboratories, Inc., a Delaware
corporation,
Plaintiff,
v.
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No. CV 2010-022735
ORDER FOR DISMISSAL WITH
PREJUDICE
(Assigned to the Xxxxxxxxx Xxxx X. Xxxxxxxx)
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Medicis Pharmaceutical Corp., a Delaware
corporation,
Defendant.
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Pursuant to the parties’ Stipulation for Dismissal With Prejudice, and good cause appearing,
IT IS HEREBY ORDERED that this action is dismissed in its entirety with prejudice, each party to bear its own costs and attorneys’ fees.
DATED this ____ day of January, 2011.
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The Xxxxxxxxx Xxxx X. Xxxxxxxx
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Judge of the Maricopa County Superior Court
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