TERMINATION AGREEMENT
Exhibit 10.1
EXECUTION
VERSION
Certain confidential information contained in this document, marked
by [***], has been omitted because Palatin Technologies, Inc.
(“Palatin”) has determined the information (i) is not
material and (ii) would likely cause competitive harm to
Palatin or its subsidiaries or affiliates if publicly
disclosed.
This
Termination Agreement (“Termination Agreement”) is made
and entered into as of July 24, 2020 (the “Termination Agreement Date”) by
and between AMAG Pharmaceuticals,
Inc., a Delaware corporation with its principal place of
business at 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, XXX
(“AMAG”) and
Palatin
Technologies, Inc., a company organized under the laws of
Delaware, with its principal place of business at 4-B Cedar Brook
Drive, Cedar Brook Corporate Center, Xxxxxxxx, XX 00000
(“Palatin”).
AMAG and Palatin are sometimes referred to herein individually as a
“Party” and
collectively as the “Parties”.
RECITALS
Whereas, AMAG
and Palatin are parties to that certain License Agreement, dated as
of January 8, 2017 (the “Agreement”), pursuant to which
Palatin granted AMAG an exclusive license to use, research,
develop, manufacture and commercialize Compounds (as defined under
the Agreement) and Products (as defined under the Agreement),
including the bremelanotide acetate product marketed by AMAG as
Vyleesi® pursuant to NDA
No. 210557 (“Vyleesi”), in the
Territory;
Whereas,
pursuant to its rights under the Agreement, AMAG has been
developing and commercializing the Products in the
Territory;
Whereas, the
Parties have agreed to terminate the Agreement and AMAG will
transition the development and commercialization of the Products to
Palatin, which termination will be effective as of the Termination
Agreement Date; and
Whereas, the
Parties anticipate that Palatin will require certain services from
AMAG, which services AMAG has agreed to conduct, for a period of
time following the termination of the Agreement to facilitate the
transition of the Products to AMAG.
Now,
Therefore, in consideration of the foregoing premises, the
mutual promises and covenants of the Parties contained herein and
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.
Definitions
1.1
Capitalized terms
used but not otherwise defined in this Termination Agreement have
the meanings provided in the Agreement.
1.2
“Accounts Payable” means accrued
receipts and accounts payable arising out of or relating to the
operation or conduct of the Business.
1.4
“Affiliate” means as of any point
in time and for so long as such relationship continues to exist
with respect to any Person, any other Person that controls, is
controlled by or is under common control with such Person. A Person
shall be regarded as in control of another Person if it (a) owns or
controls at least fifty percent (50%) of the equity securities of
the subject Person entitled to vote in the election of directors or
(b) possesses, directly or indirectly, the power to direct or cause
the direction of the management or policies of any such Person
(whether through ownership of securities or other ownership
interests, by contract or otherwise).
1.5
“Ancillary Agreements” means the
Transition Services Agreement, the Transitional Trademark License
Agreement, the Patent Assignment Agreement and the Trademark
Assignment Agreement.
1.6
“Assumed
Liabilities” means the Liabilities identified on
Schedule 1.6.
1.7
“Business” means the business of
developing, manufacturing, packaging, promoting, marketing,
selling, distributing and/or otherwise commercializing the Products
in the Territory.
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1.8
“Co-Pay Agreement” means the Master
Services Agreement by and between AMAG and TrialCard Incorporated,
dated as of July 1, 2019, as supplement by that certain Statement
of Work No. 1, dated as of July 11, 2019, Change Order Number 1 to
the Statement of Work No. 1, dated October 8, 2019 and Change Order
Number 2 to the Statement of Work No. 1, dated January 1,
2020.
1.9
“Excluded
Assets” means any assets, properties and rights of
AMAG or any of its Affiliates other than the Transferred Assets,
including, without limitation, the assets, rights and interests of
AMAG and its Affiliates set forth or described on Schedule 1.9, which assets,
rights and interests are not to be transferred to Palatin
hereunder.
1.10
“Excluded
Liabilities” means all Liabilities of AMAG and its
Affiliates other than the Assumed Liabilities, including, without
limitation and solely for illustrative purposes, the Liabilities
set forth or described on Schedule 1.10.
1.11
“Intellectual Property” means any
or all of the following in any jurisdiction in the world: (a)
copyrights, copyrightable works, and registrations and applications
for registration thereof; (b) trade names, trademarks, service
marks, and trade dress, and registrations and applications for
registration thereof, and all goodwill associated therewith; (c)
patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (d) internet uniform resource
locators and domain names; (e) rights in software, data, and
databases; and (f) trade secrets, know-how, and other confidential
information.
1.12
“Inventory” means all inventory
owned by AMAG and used exclusively in the Business or held for sale
exclusively to customers of the Business, including the Products
and active pharmaceutical ingredients, spare parts, raw materials,
containers, packaging and packaging supplies and work-in-process
([***]).
1.13
“Liabilities” means any and all
debts, liabilities, assessments, expenses, deficiencies, judgments,
losses, damages, fines, penalties and obligations of any nature,
whether accrued or unaccrued, known or unknown, express or implied,
primary or secondary, direct or indirect, liquidated, disputed or
undisputed, absolute or contingent, matured or un-matured or
determined or determinable and whether due or to become
due.
1.14
“Marketing
Authorizations” means all Regulatory Approvals owned
by AMAG or its Affiliates with respect to all Continuation Products
in the Territory, each of which is identified on Schedule 1.14 attached
hereto.
1.15
“Patent Assignment Agreement” means
that certain patent assignment agreement, substantially in the form
attached to this Termination Agreement as Exhibit A, to be entered into
between the Parties on or about the Termination Agreement
Date.
1.16
“Regulatory Files” means copies of
all regulatory files with respect to (a) Marketing
Authorizations for the Products, (b) manufacturing processes, batch
records and quality assurance records within AMAG’s
possession or control, (c) all adverse event reports and other
data, information and materials relating to adverse experiences and
other safety issues submitted to any Governmental Authority with
respect to any of the Products and included in the global safety
database for the Product, (d) clinical information related to
investigational studies and sponsored studies within AMAG’s
possession or control, and (e) all material correspondence with any
Governmental Authority relating to any of the Products, including
any safety reports or updates, complaint files and product quality
reviews.
1.17
“Taxes” means U.S. federal, state,
and local taxes and non-U.S. taxes (including interest, penalties
or additions associated therewith), including income, alternative,
minimum, franchise, capital stock, profits, real property, personal
property, tangible, withholding, employment, payroll, social
security, social contribution, unemployment compensation,
severances, disability, stamp, transfer, registration, sales, use,
excise, premium, ad valorem, gross receipts and value-added
taxes.
1.18
“Trademark Assignment Agreement”
means that certain trademark assignment agreement, substantially in
the form attached to this Termination Agreement as Exhibit B, to be entered into
between the Parties on or about the Termination Agreement
Date.
1.19
“Transfer Letters” means the
letters to be filed with the FDA, substantially in the form
attached to this Termination Agreement as Exhibit C and Exhibit D, respectively, to
transfer the Marketing Authorizations for the Products from AMAG or
its Affiliates to Palatin in accordance with 21 C.F.R. §
314.72.
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1.20
“Transferred
Assets” means the assets, rights and interests of AMAG
and its Affiliates set forth or described on Schedule 1.20, which
expressly exclude the Excluded Assets.
1.21
“Transferred
Contracts” means the agreements, contracts, licenses
and purchase orders identified on Schedule 1.21.
1.22
“Transfer Taxes” means any U.S.,
state, county, local, non-U.S. and other sales, use, transfer,
goods and services, value added, conveyance, documentary transfer,
stamp duty, recording or other similar Tax, fee or charge imposed
on or in connection with the transactions contemplated by or the
instruments executed under or in connection with this Termination
Agreement or the recording of any sale, transfer, or assignment or
property (or any interest therein) effected pursuant to this
Termination Agreement.
1.23
“Transferred
IP” means the (i) the Applicable AMAG Technology
exclusively related to the Business, and (ii) Intellectual Property
identified on Schedule 1.23.
1.24
“Transition Services Agreement”
means that certain Transition Services Agreement, dated as of the
date hereof, by and between AMAG and Palatin, substantially in the
form attached hereto as Exhibit E, to be entered into
between the Parties on or about the Termination Agreement
Date.
2.
Termination
2.1
The Parties hereby
agree to terminate each of the Agreement and the Trademark
Coexistence Agreement by and between AMAG and Palatin, dated as of
October 31, 2017, in its entirety upon the Termination Agreement
Date. Upon the Termination Agreement Date, all rights and
obligations of each Party under the Agreement shall cease
(including all rights and licenses granted by either Party to the
other Party thereunder), and AMAG shall cease all Development and
Commercialization activities with respect to the Product, and shall
have no further obligations thereafter to Develop and Commercialize
the Product in the Territory, except as set forth in this
Termination Agreement and/or under the Transition Services
Agreement.
2.2
The effects of
termination set forth in Section 9.7 of the Agreement are
superseded by the terms of this Termination Agreement; provided, however, that Sections 1.3,
3.6.6, 3.6.7, 3.6.8, 3.6.9, 3.6.10, 6.1.1, 7, 10.1 and 11.10 of the
Agreement shall survive the termination of the Agreement pursuant
to this Termination Agreement for five (5) years following the
Termination Agreement Date, except with respect to Section 3.6.7
which shall survive for three (3) years following the Termination
Agreement Date.
2.3
From and after the
Termination Agreement Date, each Party shall cooperate with the
other Party in good faith to take all actions reasonably necessary
for Palatin to assume, as soon as reasonably practicable after the
Termination Agreement Date, all operations pertaining to the
Business; provided,
however, that
nothing in this paragraph will be interpreted as requiring AMAG to
take any actions or provide any support beyond the scope of its
obligations under this Termination Agreement and Transition
Services Agreement.
3.1
Transferred Assets. Upon the
terms and subject to the conditions set forth in this Termination
Agreement, as soon as reasonably practicable after the Termination
Agreement Date, AMAG agrees to transfer, assign, convey and deliver
to Palatin, and Palatin agrees to assume and accept delivery from
AMAG, all of AMAG’s rights, title and interests in, to and
under the Transferred Assets.
3.2
Excluded Assets. Nothing in
this Termination Agreement shall operate to transfer from AMAG,
create any obligation on AMAG to transfer or cause to have
transferred any rights, title or interests in or to any of the
Excluded Assets, or create any Liability on the part of Palatin
with respect thereto.
3.3
Assumed Liabilities. Effective
at the Termination Agreement Date and from and after the
Termination Agreement Date, Palatin shall assume or cause its
applicable Affiliates to assume the Assumed Liabilities and shall
agree to satisfy and discharge when due the liabilities and
obligations of AMAG and its Affiliates in respect of the Assumed
Liabilities. After the Termination Agreement Date, Palatin or its
applicable Affiliates shall be liable to pay, perform and discharge
when due all Assumed Liabilities.
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3.4
Excluded Liabilities.
Notwithstanding anything to the contrary set forth herein,
(a) Palatin shall not assume and shall not be responsible to
pay, perform or discharge any Excluded Liabilities, and (b) AMAG
shall retain and be responsible for all Excluded Liabilities, and,
as the case may be, their payment, performance and discharge when
due.
3.5
Business Transfer Documents. To
the extent required under applicable Law or as reasonably deemed
necessary by either of the Parties, to effect the transactions
contemplated hereunder, the Parties shall execute and deliver, or
cause their respective Affiliates to execute and deliver, such
asset and/or business transfer agreements, bills of sale, deeds,
assignments, assumptions and other documents and instruments of
sale, conveyance, assignment, novation, transfer and assumption
(the “Business Transfer
Documents”) as are necessary to effect any transfer of
the Transferred Assets or Assumed Liabilities. The Business
Transfer Documents shall be in form and substance reasonably agreed
to by the Parties and as is usual and customary in the applicable
jurisdiction; provided that the Parties agree
and acknowledge that the Business Transfer Documents are intended
solely to formalize the terms and conditions of this Termination
Agreement in order to comply with any applicable Law and shall be,
in all respects, consistent with the terms and conditions set forth
in this Termination Agreement. In the event of any inconsistency
between this Termination Agreement and a Business Transfer
Document, this Termination Agreement shall control to the extent it
would not be incompatible with applicable Law.
3.6
Recording and Similar
Responsibilities. Notwithstanding the foregoing provisions
of this Section
3, it shall be
Palatin’s responsibility (a) to record the applicable Patent
Assignment Agreement and Trademark Assignment Agreement following
execution thereof by AMAG at the Termination Agreement Date and (b)
to bear the fees and other costs and any Taxes arising from such
activities.
3.7
Transfer of Marketing
Authorizations. As promptly as reasonably practicable
following the Termination Agreement Date, Palatin and AMAG shall
(a) file the Transfer Letters with the FDA to transfer ownership of
the Marketing Authorizations for the Products and (b) submit all
appropriate and necessary documentation with respect to FDA
approval by the applicable Governmental Authority of the removal of
trademarks of AMAG or its Affiliates and the inclusion of
Palatin’s name, corporate logo and National Drug Code on
labeling for the Product, subject to the Transitional Trademark
License Agreement. As promptly as reasonably practicable
following the Termination Agreement Date, Palatin shall apply for
and initiate applicable processes to obtain, establish and begin
using its own National Drug Code for the Products, and shall
promptly notify AMAG thereof. Notwithstanding the foregoing,
Palatin shall only be entitled to promote, market, sell, distribute
and/or otherwise Commercialize Product using AMAG’s National
Drug Code in accordance with the requirements set forth in
Schedule 3.7.
3.8
Data Room Information. As
promptly as reasonably practicable following the Termination
Agreement Date, AMAG shall deliver or cause to be delivered to
Palatin a DVD, CD-ROMs or other digital media file transfer with
all documents or information relating exclusively to the Product
and the Transferred Assets and available to Palatin as of the date
hereof in the electronic data room related to the Product and
hosted by Datasite, access of which has been made available to
Palatin prior to the Termination Agreement Date.
4.
Transition Services; Covenants
4.1
AMAG shall provide
to Palatin the transition services set forth in the Transition
Services Agreement. Each Party shall bear its own costs in
connection with performing its obligations to complete the transfer
of Product operations to Palatin.
4.2
From and after the
transfer of the Marketing Authorizations, and during the term of
the Transition Services Agreement, Palatin shall conduct the
Business, including the Development, Manufacture, Commercialization
or use of any Product by, on behalf of, or under the authority of,
Palatin, in material compliance with applicable Law and
requirements and directions of applicable Governmental Entities to
the extent relevant thereto.
4.3
Palatin shall pay
and deliver the deposit required under the Co-Pay Agreement to
TrialCard Incorporated within three (3) Business Days following the
assignment of the Co-Pay Agreement.
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5.
Financial Terms
5.1
In consideration
for the early termination of the Agreement and the assumption of
the Assumed Liabilities, including commitments under certain
Transferred Contracts, AMAG shall make the following
non-refundable, non-creditable payments to Palatin:
a.
Twelve million
dollars ($12,000,000) within three (3) Business Days following the
Termination Agreement Date; and
b.
Four million and
three hundred thousand dollars ($4,300,000) on March 31,
2021.
5.2
AMAG shall pay the
amounts payable pursuant to this Termination Agreement by wire
transfer of immediately available funds to such account or accounts
as are designed in writing by Palatin.
6.
Representations and Warranties
6.1
Mutual Representations and
Warranties. Each
Party hereby represents and warrants to the other Party as follows,
as of the Termination Agreement Date:
a.
it is a company or
corporation duly organized, validly existing, and in good standing
under the laws of the jurisdiction in which it is
incorporated;
b.
it has the
corporate power and authority and the legal right to enter into
this Termination Agreement and perform its obligations
hereunder;
c.
it has taken all
necessary corporate action on its part required to authorize the
execution and delivery of this Termination Agreement and the
performance of its obligations hereunder and the consummation of
the transactions contemplated hereby; and
d.
this Termination
Agreement has been duly executed and delivered on behalf of such
Party, and constitutes a legal, valid, and binding obligation of
such Party that is enforceable against it in accordance with its
terms.
6.2
Additional Representations and
Warranties of AMAG. AMAG hereby represents and warrants to
Palatin as follows, as of the Termination Agreement
Date:
a.
other than the
Marketing Authorizations, AMAG does not own or hold any technical,
medical or scientific licenses, registrations, authorizations or
approvals (including approvals of NDAs, supplements and amendments,
pre- and post- approvals, Price Approvals, and labeling approvals),
in any regulatory jurisdiction, that relate exclusively to any
Continuation Product or other Product; and
b.
other than the
Transferred IP, there is no AMAG Patent Right or registered
trademarks owned or controlled by AMAG that is used or held
exclusively for use in the conduct of the Business as currently
conducted or proposed to be conducted.
6.3
DISCLAIMER OF WARRANTY. EXCEPT
AS EXPRESSLY STATED IN THIS TERMINATION AGREEMENT, NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, OR NON-MISAPPROPRIATION OF
THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ARE MADE OR GIVEN BY OR
ON BEHALF OF A PARTY, AND ALL REPRESENTATIONS AND WARRANTIES,
WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY
EXPRESSLY EXCLUDED.
6.4
EXCEPT FOR A
PARTY’S OBLIGATIONS UNDER SECTION 7.2 (INDEMNIFICATION), AND
ANY BREACH OF SECTION 9.1 (CONFIDENTIALITY), IN NO EVENT WILL
EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR THE OTHER
PARTY’S AFFILIATES) IN CONNECTION WITH THIS TERMINATION
AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT,
SPECULATIVE, TREBLE OR PUNITIVE DAMAGES, LOSS OF BUSINESS
REPUTATION OR OPPORTUNITY, LOST REVENUE, INCOME OR PROFITS,
DIMINUTION IN VALUE, DAMAGE TO GOODWILL OR SIMILAR ITEMS UNDER ANY
THEORY, INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, EVEN
IF THAT PARTY HAS BEEN PLACED ON NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES.
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7.
Release; Indemnification
a.
Palatin, for itself
and on behalf of its Affiliates, and each of their respective
current or past directors, officers, stockholders, employees,
agents, and insurers and their respective successors, heirs,
assigns and representatives, or anyone claiming through any of the
foregoing (collectively, the “Palatin Releasors”), hereby
completely, irrevocably, fully, finally, and forever release,
relinquish, waive and discharge AMAG and its Affiliates, and each
of them, including their present and former parents, subsidiaries,
predecessors, successors, assigns, and any of their respective
current or past officers, directors, employees, agents, insurers,
and their respective successors, heirs, assigns and representatives
(collectively, the “AMAG
Releasees”), of and from (i) any and all Liabilities,
claims, actions, causes of action, judgments, demands, costs and
expenses of any kind, whether known or unknown (collectively,
“Losses”), that
the Palatin Releasors, or any of them, had, has, may have or may
ever claim to have against the AMAG Releasees, or any of them,
under or directly or indirectly related to the Agreement, based
upon facts and circumstances arising or existing on or before the
Termination Agreement Date, (ii) any Losses the Palatin Releasors,
or any of them, has, may have or may ever claim to have against the
AMAG Releasees, or any of them, arising out of or related to
AMAG’s assignment and transfer of the Transferred Assets;
provided,
however, that
the release under the foregoing clauses (i) and (ii) shall not
extend to any royalties owing by AMAG to Palatin pursuant to
Section 3 of the Agreement (including AMAG’s obligations
under Section 3.6.8 of the Agreement with respect to underpayments
and AMAG’s obligations under Section 3.6.9 of the Agreement
with respect to late payments) immediately prior to the
effectiveness of this Termination Agreement, and (iii) any
indemnity obligations under the Agreement.
b.
AMAG, for itself
and on behalf of its Affiliates, and each of their respective
current or past directors, officers, stockholders, employees,
agents, and insurers and their respective successors, heirs,
assigns and representatives, or anyone claiming through any of the
foregoing (collectively, the “AMAG Releasors”), hereby
completely, irrevocably, fully, finally, and forever release,
relinquish, waive and discharge Palatin and its Affiliates, and
each of them, including their present and former parents,
subsidiaries, predecessors, successors, assigns, and any of their
respective current or past officers, directors, employees, agents,
insurers, and their respective successors, heirs, assigns and
representatives (collectively, the “Palatin Releasees”), of and from
any and all Losses that the AMAG Releasors, or any of them, had,
has, may have or may ever claim to have against the Palatin
Releasees, or any of them, under or directly or indirectly related
to the Agreement, based upon facts and circumstances arising or
existing on or before the Termination Agreement Date; provided, however, that the release under
the foregoing Section 7.1(b) shall not extend to any of
Palatin’s obligations under Section 3.6.8 of the Agreement
with respect to overpayments immediately prior to the effectiveness
of this Termination Agreement and (ii) any indemnity obligations
under the Agreement.
c.
Notwithstanding any
provision of this Termination Agreement to the contrary, nothing
herein shall be deemed to (i) release, acquit or discharge any
Palatin Releasee or any AMAG Releasee from its obligations (if any)
under this Termination Agreement or any claim arising from any
breach of such obligations or (ii) otherwise limit or impair any
obligation of any Palatin Releasee or any AMAG Releasee under this
Termination Agreement (including any indemnification obligation
under Section 7.2).
a.
The Parties’
indemnification rights and obligations under the Agreement will
terminate following termination of the Agreement.
b.
AMAG will
indemnify, defend and hold harmless Palatin, each of its
Affiliates, and each of its and its Affiliates’ employees,
officers, directors and agents (each, a “Palatin Indemnified Party”) from
and against any and all Liabilities (including reasonable
attorneys’ fees and expenses) that the Palatin Indemnified
Party may be required to pay to one or more Third Parties resulting
from or arising out of: (i) the conduct of the Business by AMAG and
its Affiliates prior to the Termination Agreement Date, including
the Development, Manufacture, Commercialization or use of any
Product by, on behalf of, or under the authority of, AMAG (other
than by any Palatin Indemnified Party), including its respective
sublicensees and distributors in or for the Territory, other than
(A) claims by Third Parties relating to patent infringement arising
out of the exercise of rights under the Palatin Patent Rights, (B)
claims by Third Parties relating misappropriation of trade secrets
arising out of the exercise of rights under the Palatin Know-How
and (C) claims for which Palatin is required to indemnify AMAG
pursuant to Section
7.2(c), (ii) any breach of its
obligations, representations, warranties and covenants under this
Termination Agreement (for the avoidance of doubt, this shall not
include any breach under the Transition Services Agreement), and
(iii) any Excluded Asset or any Excluded Liability.
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c.
Palatin will
indemnify, defend and hold harmless AMAG, each of its Affiliates,
Sublicensees, contractors, distributors and each of its and their
respective employees, officers, directors and agents (each, an
“AMAG Indemnified
Party”) from and against any and all Liabilities
(including reasonable attorneys’ fees and expenses) that the
AMAG Indemnified Party may be required to pay to one or more Third
Parties resulting from or arising out of (i) the conduct of
the Business by Palatin and its Affiliates and licensees after the
Termination Agreement Date, including the Development, Manufacture,
Commercialization or use of any Product by, on behalf of, or under
the authority of, Palatin, including its respective licensees and
distributors in or for any Territory, after the Termination
Agreement Date, (ii) any breach of its obligations,
representations, warranties and covenants under this Termination
Agreement, (iii) the payment, performance and discharge of Assumed
Liabilities, (iv) any claim that the practice of the Palatin
Technology to Develop, Manufacture, Commercialize or use any
Compound, Product, Pharmaceutical Product or Product Delivery
Device in connection with the conduct of the Business by AMAG and
its Affiliates prior to the Termination Agreement Date infringed or
misappropriated any issued patent or other proprietary right owned
or possessed by any Third Party, (v) negligence or willful
misconduct of Palatin in the conduct of the Palatin Development
Activities by or on behalf of Palatin, and (vi) any Assumed
Liability.
7.3
Procedure. The following
provisions shall apply to the Parties’ indemnification
obligations under Section 7.2:
a.
Notice. Each Party will notify
the other Party in writing in the event it becomes aware of a claim
for which indemnification may be sought hereunder. In the event
that any Third Party asserts a claim or other proceeding (including
any governmental investigation) with respect to any matter for
which a Party (the “Indemnified Party”) is entitled to
indemnification hereunder (a “Third Party Claim”), then the
Indemnified Party shall promptly notify the Party obligated to
indemnify the Indemnified Party (the “Indemnifying Party”) thereof;
provided,
however, that no
delay on the part of the Indemnified Party in notifying the
Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then only to the extent that) the
Indemnifying Party is prejudiced thereby.
b.
Control. The Indemnifying Party
shall have the right, exercisable by notice to the Indemnified
Party within ten Business Days after receipt of notice from the
Indemnified Party of the commencement of or assertion of any Third
Party Claim, to assume direction and control of the defense,
litigation, settlement, appeal or other disposition of the Third
Party Claim (including the right to settle the claim solely for
monetary consideration) with counsel selected by the Indemnifying
Party and reasonably acceptable to the Indemnified Party;
provided that (a)
the Indemnifying Party has sufficient financial resources, in the
reasonable judgment of the Indemnified Party, to satisfy the amount
of any adverse monetary judgment that is sought, (b) the Third
Party Claim seeks solely monetary damages and (c) the Indemnifying
Party expressly agrees in writing that as between the Indemnifying
Party and the Indemnified Party, the Indemnifying Party shall be
solely obligated to satisfy and discharge the Third Party Claim in
full (the conditions set forth in clauses (a), (b) and (c) above
are collectively referred to as the “Litigation Conditions”). Within
ten (10) Business Days after the Indemnifying Party has given
notice to the Indemnified Party of its exercise of its right to
defend a Third Party Claim, the Indemnified Party shall give notice
to the Indemnifying Party of any objection thereto based upon the
Litigation Conditions. If the Indemnified Party reasonably so
objects, the Indemnified Party shall continue to defend the Third
Party Claim, at the expense of the Indemnifying Party, until such
time as such objection is withdrawn. If no such notice is given, or
if any such objection is withdrawn, the Indemnifying Party shall be
entitled, at its sole cost and expense, to assume direction and
control of such defense, with counsel selected by the Indemnifying
Party and reasonably acceptable to the Indemnified Party. During
such time as the Indemnifying Party is controlling the defense of
such Third Party Claim, the Indemnified Party shall cooperate, and
shall cause its Affiliates and agents to cooperate upon request of
the Indemnifying Party, in the defense or prosecution of the Third
Party Claim, including by furnishing such records, information and
testimony and attending such conferences, discovery proceedings,
hearings, trials or appeals as may reasonably be requested by the
Indemnifying Party. In the event that the Indemnifying Party does
not satisfy the Litigation Conditions or does not notify the
Indemnified Party of the Indemnifying Party’s intent to
defend any Third Party Claim within ten Business Days after notice
thereof, the Indemnified Party may (without further notice to the
Indemnifying Party) undertake the defense thereof with counsel of
its choice and at the Indemnifying Party’s expense (including
reasonable, out-of-pocket attorneys’ fees and costs and
expenses of enforcement or defense). The Indemnifying Party or the
Indemnified Party, as the case may be, shall have the right to join
in (including the right to conduct discovery, interview and examine
witnesses and participate in all settlement conferences), but not
control, at its own expense, the defense of any Third Party Claim
that the other party is defending as provided in this Termination
Agreement.
c.
Settlement. The Indemnifying
Party shall not, without the prior written consent of the
Indemnified Party, enter into any compromise or settlement that
commits the Indemnified Party to take, or to forbear to take, any
action. The Indemnified Party shall have the sole and exclusive
right to settle any Third Party Claim, on such terms and conditions
as it deems reasonably appropriate, to the extent such Third Party
Claim involves equitable or other non-monetary relief, but shall
not have the right to settle such Third Party Claim to the extent
such Third Party Claim involves monetary damages without the prior
written consent of the Indemnifying Party. Each of the Indemnifying
Party and the Indemnified Party shall not make any admission of
liability in respect of any Third Party Claim without the prior
written consent of the other party, and the Indemnified Party shall
use reasonable efforts to mitigate liabilities arising from such
Third Party Claim.
7
8.
Insurance.
8.1
Each Party further
agrees to obtain and maintain, for (i) with respect to Palatin,
five (5) years after the Termination Agreement Date and (ii) with
respect to AMAG, three (3) years after the Termination Agreement
Date, commercial general liability insurance, including products
liability insurance, with reputable and financially secure
insurance carriers (or pursuant to a program of self-insurance
reasonably satisfactory to the other Party) to cover its
indemnification obligations under Section 7.2, in each case
with limits of not less than ten million dollars ($10,000,000) per
occurrence and in the aggregate. Insurance shall be procured with
carriers having an A.M. Best Rating of A-VII or
better.
9.
Confidentiality
9.1
From and after the
Termination Agreement Date, the Transferred Assets will be deemed
Confidential Information of Palatin under the Agreement and subject
to Section 7 thereof. All other information disclosed by one Party
to another Party under this Termination Agreement will be deemed
the disclosing Party’s Confidential Information under the
Agreement and subject to Section 7 thereof. In addition, the terms
of this Termination Agreement will be deemed the Confidential
Information of each Party under the terms of Section 7 of the
Agreement.
9.2
No press release or
public announcement, written or oral, related to this Termination
Agreement, the transactions contemplated herein or to the existence
of any arrangement between the Parties shall be issued or made by
any Party (or any Affiliate of a Party) without the joint approval
of Palatin and AMAG (which approval shall not be unreasonably
withheld), unless required by Law or the listing requirements of
the Nasdaq (on the reasonable advice of counsel) in which case
Palatin and AMAG shall have the right to review such press release,
announcement or communication prior to issuance, distribution or
publication to the extent reasonably practicable. For the avoidance
of doubt, the Parties acknowledge and agree that each Party and its
Affiliates may provide general information about the subject matter
of this Termination Agreement in connection with their fund
raising, marketing, informational or reporting activities.
Notwithstanding anything contained herein to the contrary, unless
required by Law or the listing requirements of the Nasdaq (on the
reasonable advice of counsel), neither Party shall use the name or
xxxx of any Affiliates of the other Party, or any abbreviation,
variation or derivative thereof, in any press release, public
announcement or similar public document or communication relating
to the transactions contemplated by this Termination Agreement
without the express written consent of the other Party. If either
Party, based on the advice of its counsel, determines that this
Termination Agreement, or any of the Ancillary Agreements, must be
publicly filed with a Governmental Authority, then such Party,
prior to making any such filing, shall provide the other party and
its counsel with a redacted version of this Termination Agreement
(and any other Ancillary Agreement) which it intends to file, and
will give due consideration to any comments provided by the other
Party or its counsel and use commercially reasonable efforts to
obtain confidential treatment by such Governmental Authority of
such portions of this Termination Agreement as may be reasonably
requested by the other Party or its counsel.
10.
Miscellaneous
10.1
Dispute Resolution. All
disputes arising under this Termination Agreement will be resolved
in accordance with Section 11.10 of the Agreement.
10.2
Entire Agreement; Amendments.
This Termination Agreement (including the Exhibits, Annexes and
Schedules hereto), the Ancillary Agreements and the Agreement
constitute the entire, final and exclusive understanding and
agreement between the Parties with respect to the subject matter
hereof and thereof and cancels and supersedes any and all prior
negotiation, correspondence, understandings and agreements, whether
oral or written, between the Parties with respect to the subject
matter hereof and thereof. In the event of any conflict between the
terms of this Termination Agreement and the Agreement, the terms of
this Termination Agreement will control and prevail. No amendment,
modification, supplement release or discharge with respect to this
Termination Agreement or any provision hereof will be valid,
effective or binding upon the Parties unless in writing and duly
executed by authorized representatives of both
Parties.
10.3
Notices. Any notice required or
permitted to be given under this Termination Agreement shall
be in writing, shall specifically refer to this Termination Agreement, and
shall be addressed to the appropriate Party at the address
specified below or such other address as may be specified by such
Party in writing in accordance with this Section 10.3, and shall be
deemed to have been given for all purposes (a) when personally
delivered, (b) when transmitted via facsimile machine to the
number set out below if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery
service (charges prepaid), (c) the day following the day
(except if not a business day then the next business day) on which
the same has been delivered prepaid to a reputable national
overnight air courier service or (d) the fifth business day
following the day on which the same is sent by certified or
registered mail, postage prepaid.
8
|
If
to AMAG:
|
AMAG
Pharmaceuticals, Inc.
|
|
|
0000 Xxxxxx
Xx.
|
|
|
Xxxxxxx, XX
00000
|
|
|
Attention: Xxxxxx
Xxxxxxxxx & Xxxxx Xxxxxx
|
|
|
Fax: (000)
000-0000
|
|
|
|
|
With a copy to
(which shall not constitute notice):
|
Xxxxxxx Procter
LLP
|
|
|
000 Xxxxxxxx
Xxx.
|
|
|
Xxxxxx, XX
00000
|
|
|
Attention: Xxxxxx
Xxxxx, Xxxxxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx
|
|
|
Fax: (000)
000-0000
|
|
|
|
|
If
to Palatin:
|
Palatin
Technologies, Inc.
|
|
|
0-X Xxxxx Xxxxx
Xxxxx
|
|
|
Xxxxxxxx, XX
00000
|
|
|
Attention: Xxxxxxx
X. Xxxxx & Xxxxxxx X. Xxxxxxx
|
|
|
Fax: (000)
000-0000
|
|
|
Email:
xxxxxx@xxxxxxx.xxx & xxxxxxxx@xxxxxxx.xxx
|
|
|
|
|
With a copy to
(which shall not constitute notice) to:
|
Xxxxxxxx Xxxx
LLP
|
|
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000 Xxxxxxx Xxxxxx,
00xx Xxxxx
|
|
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Xxx Xxxx, XX
00000
|
|
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Attention: Xxxxx X.
Xxxxxxx, Esq.
|
|
|
Fax: (000)
000-0000
|
|
|
Email:
Xxxxx.Xxxxxxx@XxxxxxxxXxxx.xxx
|
10.4
No Strict Construction;
Headings. This Termination Agreement has been prepared
jointly by the Parties and shall not be strictly construed against
either Party. Ambiguities, if any, in this Termination Agreement shall
not be construed against any Party, irrespective of which Party may
be deemed to have authored the ambiguous provision. The headings of
each Article and Section in this Termination Agreement have been
inserted for convenience of reference only, are not intended to
limit or expand on the meaning of the language contained in the
particular Article or Section and shall be of no force or effect in
construing or interpreting any of the provisions of this
Termination Agreement.
10.5
Assignment. Neither this
Agreement nor any interest hereunder shall be assignable by a Party
without the prior written consent of the other Party, except as
follows: (a) a Party may assign its rights and obligations under
this Agreement by way of sale of itself or the sale of the entire
portion of its business to which this Agreement relates, through
merger, sale of assets or sale of stock or ownership interest,
provided that the
assignee shall expressly agree to be bound by such Party’s
obligations under this Agreement and that such sale is not
primarily for the benefit of its creditors, (b) such Party may
assign its rights and obligations under this Agreement to any of
its Affiliates, provided that the assignee shall expressly agree to
be bound by such Party’s obligations under this Agreement and
that such Party shall remain liable for all of its rights and
obligations under this Agreement. Each Party shall promptly notify
the other Party of any assignment or transfer under the provisions
of this Section 10.5. This Agreement shall be binding upon the
successors and permitted assigns of the Parties and the name of a
Party appearing herein shall be deemed to include the names of such
Party’s successors and permitted assigns to the extent
necessary to carry out the intent of this Agreement. Any assignment
not in accordance with this Section 10.5 shall be void. For the
avoidance of doubt, neither the consent of or notice to AMAG shall
be required in connection with any sale, transfer, license or other
disposition of the Transferred Assets or any rights of Palatin
relating thereto; provided, however, that such sale,
transfer, license or other disposition shall not release Palatin
from its obligations with respect to such Transferred Assets under
this Agreement.
10.6
Performance by Affiliates. Each
Party may discharge any obligations and exercise any right
hereunder through any of its Affiliates. Each Party hereby
guarantees the performance by its Affiliates of such Party’s
obligations under this Termination Agreement, and
shall cause its Affiliates to comply with the provisions of this
Termination
Agreement in connection with such performance. Any breach by a
Party’s Affiliate of any of such Party’s obligations
under this Termination Agreement shall
be deemed a breach by such Party, and the other Party may proceed
directly against such Party without any obligation to first proceed
against such Party’s Affiliate.
10.7
Further Actions. Each Party
agrees to execute, acknowledge and deliver such further
instruments, and to do all such other acts, as may be necessary or
appropriate in order to carry out the purposes and intent of this
Termination
Agreement.
9
10.8
Force Majeure. Each Party shall
be excused from the performance of its obligations under this
Termination Agreement to the extent that such performance is
prevented by force majeure (as defined below) and the nonperforming
Party promptly provides notice of the prevention to the other
Party. Such excuse shall be continued so long as the condition
constituting force majeure continues and the nonperforming Party
takes commercially reasonable efforts to remove the condition. For
purposes of this Agreement, “force majeure” shall
include conditions beyond the control of the Parties, including an
act of God, voluntary or involuntary compliance with any
regulation, law or order of any government, war, act of terror,
civil commotion, labor strike or lock-out, epidemic, pandemic,
failure or default of public utilities or common carriers,
destruction of production facilities or materials by fire,
earthquake, storm or like catastrophe.
10.9
Severability. If any one or
more of the provisions of this Termination Agreement or
portion thereof is for any reason held to be invalid or
unenforceable by any court of competent jurisdiction from which no
appeal can be or is taken, the same shall be considered severed
from this Termination Agreement and
shall not affect or serve to invalidate any remaining provisions
hereof, as it is the intent of the Parties that this Termination
Agreement shall be construed in such fashion as to maintain its
existence, validity and enforceability to the greatest extent
possible. In any such event, this Termination Agreement shall be
construed as if such provision of portion thereof had never been
contained in this Termination Agreement, and there shall be deemed
substituted therefor such provision as will most nearly carry out
the intent of the Parties as expressed in this Termination
Agreement to the fullest extent permitted by applicable law, unless
the Parties elect to make a good faith effort to replace any
invalid or unenforceable provision with a valid and enforceable one
such that the objectives contemplated by the Parties when entering
this Termination
Agreement may be realized.
10.10
No Waiver. Any delay in
enforcing a Party’s rights under this Termination Agreement or any
waiver as to a particular default or other matter shall not
constitute a waiver of such Party’s rights to the future
enforcement of its rights under this Termination Agreement, except
with respect to an express written and signed waiver relating to a
particular matter for a particular period of time. No provision of
this Termination Agreement shall be waived by any act, omission or
knowledge of a Party or its agents or employees except by an
instrument in writing expressly waiving such provision and signed
by a duly authorized officer of the waiving Party. The waiver by
either of the Parties of any breach of any provision hereof by the
other Party shall not be construed to be a waiver of any succeeding
breach of such provision or a waiver of the provision
itself.
10.11
Independent Contractors. Each
Party shall act solely as an independent contractor, and nothing in
this Termination
Agreement shall be construed to give either Party the power or
authority to act for, bind, or commit the other Party in any way.
Nothing herein shall be construed to create the relationship of
partners, principal and agent, or joint-venture partners between
the Parties or any of their agents or employees, or any other legal
arrangement that would impose liability upon one Party for the act
or failure to act of the other Party.
10.12
English Language; Governing
Law. This Termination Agreement was
prepared in the English language, which language shall govern the
interpretation of, and any dispute regarding, the terms of this
Termination
Agreement. This Termination Agreement and all
disputes arising out of or related to this Termination Agreement or any
breach hereof shall be governed by and construed under the laws of
the State of New York, United States of America, without giving
effect to any choice of law principles that would require the
application of the laws of a different state.
10.13
Jurisdiction. Except as
otherwise expressly provided in this Termination Agreement, any
proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Termination
Agreement or the transactions contemplated hereby shall be
commenced exclusively in the state and federal courts sitting in
the City of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
the City of New York, Borough of Manhattan (and of the appropriate
appellate courts therefrom) in any such proceeding and irrevocably
waives, to the fullest extent permitted by Law, any objection which
it may now or hereafter have to the laying of the venue of any such
proceeding in any such court or that any such proceeding which is
brought in any such court has been brought in an inconvenient
forum. Process in any such proceeding may be served on any Party
anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each Party
agrees that service of process on such Party as provided in this
Section 10.13 shall be
deemed effective service of process on such party.
10.14
Representation by Legal
Counsel. Each Party hereto represents that it has been
represented by legal counsel in connection with this Termination
Agreement and acknowledges that it has participated in the drafting
hereof. In interpreting and applying the terms and provisions of
this Termination Agreement, the Parties agree that no presumption
shall exist or be implied against the Party which drafted such
terms and provisions.
10.15
No Third Party Rights or
Obligations. No provision of this Termination Agreement
shall be deemed or construed in any way to result in the creation
of any rights or obligation in any person or entity not a Party to
this Termination Agreement.
10
10.16
Counterparts. This Termination Agreement may be
executed in one (1) or more counterparts, each of which shall be
deemed an original and all of which shall together constitute one
and the same instrument. This Termination Agreement shall become
effective when each Party shall have received a counterpart hereof
signed by the other Party. Until and unless each Party has received
a counterpart hereof signed by the other Party, this Termination
Agreement shall have no effect and no Party shall have any right or
obligation hereunder (whether by virtue hereof or any other oral or
written agreement or other communication).
10.17
Delivery by Electronic
Transmission. This Termination Agreement and any
signed agreement entered into in connection herewith or
contemplated hereby, and any amendments hereto or thereto, to the
extent signed and delivered by means of a facsimile machine or by
..pdf, .tif, .gif, .jpeg or similar attachment to electronic mail,
shall be treated in all manner and respects as an original contract
and shall be considered to have the same binding legal effects as
if it were the original signed version thereof delivered in person.
At the request of any party hereto or to any such contract, each
other party hereto or thereto shall re–execute original forms
thereof and deliver them to all other parties. No party hereto or
to any such contract shall raise the use of a facsimile machine or
by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail
to deliver a signature or the fact that any signature or contract
was transmitted or communicated through the use of facsimile
machine or by .pdf, .tif, .gif, .jpeg or similar attachment to
electronic mail as a defense to the formation of a contract and
each such party forever waives any such defense.
[SIGNATURE
PAGE FOLLOWS]
11
In Witness
Whereof, the Parties have executed this Termination
Agreement in duplicate originals by their duly authorized officers
as of the Effective Date.
|
Palatin
Technologies, Inc.
|
|
|
AMAG
Pharmaceuticals, Inc.
|
|
|
/s/ Xxxxxxx X.
Xxxxx
|
|
|
/s/ Xxxxx
Xxxxx
|
|
|
Name: Xxxxxxx X.
Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
|
|
Title:
Chief
Financial Officer, Chief Operating
Officer
and Executive Vice President
|
|
|
Title: President and Chief
Executive Officer
|
|
[Signature
Page to Termination Agreement]
12
Exhibit A
Patent Assignment Agreement
A-1
Exhibit B
Trademark Assignment Agreement
B-1
Exhibit C
Palatin Transfer Letter
C-1
Exhibit D
AMAG Transfer Letter
D-1
Exhibit E
Transition Services Agreement
E-1
