Exhibit 10.39
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT is made and entered into as of this 1st day of
February, 2002, by and among:
CHUGAI PHARMACEUTICAL CO., LTD a Japanese corporation (herinafter
"Chugai"), with its principal offices
located at 0-0 Xxxxxxxx 0-xxxxx,
Xxxx-xx, Xxxxx, Xxxxx 104-0031; and
GLIATECH INC., a Delaware corporation (hereinafter
"Gliatech"), with its principal offices
located at 00000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxx 00000, X.X.X.
WITNESSETH
WHEREAS, Chugai and Gliatech have entered into the DEVELOPMENT AND
EXCLUSIVE LICENSE AGREEMENT (hereinafter "License Agreement") and the
MANUFACTURING AGREEMENT (herein after "Manufacturing Agreement"; and License
Agreement and Manufacturing Agreement are hereinafter collectively
"Agreements"), both dated 10th day of December, 1996; and
WHEREAS, Chugai and Gliatech hereto desire to terminate the Agreements in
accordance with the provisions hereof.
NOW, THEREFORE, Chugai and Gliatech hereby agree as follows:
1. TERMINATION
Chugai and Gliatech agree that the Agreements shall terminate, effective
as of the earlier date of either the 28th day of February 2002 or the date
of the completion of providing materials under Article 4 of this
TERMINATION AGREEMENT. Such effective date shall be hereinafter referred
to as the "Termination Date".
2. ACKNOWLEDGEMENT
Chugai and Gliatech hereby acknowledge and agree that this TERMINATION
AGREEMENT irrevocably, unconditionally and permanently cancels and
nullifies, upon termination provided in Article 1 above, any and all their
rights and obligations contained in the Agreements. Chugai and Gliatech
specifically acknowledge and agree that, after the termination, Chugai
shall not be obliged to develop or commercialize Gliatech's ADCON(R)-L or
ADCON(R)-T/N nor be liable for any and all matters related to the
Importation Approval (hereinafter "Importation Approval") for Gliatech's
ADCON(R)-L or ADCON(R)-T/N as provided in Article 1.7 of the License
Agreement.
3. WITHDRAWAL OF THE APPLICATION FOR THE IMPORTATION APPROVAL
Chugai shall continue filing the application for the Importation Approval
until and including the Termination Date, and shall be entitled to withdraw
such application at its own discretion after the Termination Date.
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4. MATERIALS FOR THE IMPORTATION APPROVAL
Chugai will, at Chugai's sole discretion on or before the Termination
Date, provide Gliatech and/or a third party designated by Gliatech with
Patient Case Records Chugai received from Gliatech and photocopies of the
dossier filed to the MHLW in connection with the application for the
Importation Approval. This provision process shall be completed by
Chugai's mailing all relevant documents to the above address of Glaitech
or a third party designated by Gliatech. Gliatech and Chugai shall take
all reasonable steps so that such delivery shall be completed smoothly.
5. WAIVER
Chugai and Gliatech shall, upon the termination of the Agreements,
irrevocably, unconditionally and permanently waive any and all of their
rights to the other party, and shall not raise any claim against the other
party in connection with the Agreements after the Termination Date.
6. CONFIDENTIALITY
Neither Chugai nor Gliatech shall, for a period of five (5) years from the
Termination Date, disclose to a third party any confidential information
of the other party which it has acquired in connection with the Agreements
or in the course of performance of the Agreements.
7. OTHER
(a) This TERMINATION AGREEMENT shall be governed by and construed in
accordance with the laws of the United States of America.
(b) All disputes, controversies or differences that may arise out of or in
relation to this TERMINATION AGREEMENT shall be finally settled bt
arbitration. The arbitration will be conducted by a certified arbitration
service under regulations of the American Arbitration Association.
An Arbitrator will be selected by mutual agreement of the parties. Each
party hereby accepts and submits itself unconditionally to the exclusive
jurisdiction of the arbitrator. Gliatech and Chugai shall equally share
the fees and disbursements incurred for such arbitration.
IN WITNESS WHEREOF, Chugai and Gliatech hereto have executed this
TERMINATION AGREEMENT in duplicate on the day and year first above written.
CHUGAI PHARMACEUTICAL CO., LTD.
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Manager, Medical Device Division
GLIATECH INC.
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
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