*** CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND HAS BEEN FILED SEPARATELY WITH
THE COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED
WITH ASTERISKS.
Exhibit 10.2
TERMINATION AGREEMENT AND MUTUAL RELEASE
This Termination Agreement and Mutual Release ("Termination Agreement") is
made by and between ▇▇▇▇▇▇, INC., a Delaware corporation having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Zimmer")
and ANIKA THERAPEUTICS, INC., a Massachusetts corporation having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Anika") (sometimes collectively referred to as the "Parties") on the last date
executed by both Parties (the "Termination Effective Date").
Recitals
1. Zimmer and ▇▇▇▇▇ entered into an Exclusive Distribution Agreement dated
November 7, 1997, as amended by a First Amendment thereto dated June 1, 1998,
and a Second Amendment thereto dated June 3, 1999 and incorporating certain
additional letters dated September 30, 1998, May 3, 1999, May 20, 1999 and
October 20, 1999 (the Exclusive Distribution Agreement, as amended, is
hereinafter referred to as the "Distribution Agreement").
2. Pursuant to the Distribution Agreement, Zimmer agreed to purchase a
hyaluronic acid product (the "Product") and received the exclusive right to
distribute the Product in the Territory, as more fully described in the
Distribution Agreement.
3. Notwithstanding anything in the Distribution Agreement to the contrary,
the Parties now wish an early termination of the Distribution Agreement as of
the Termination Effective Date in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
Agreement
1. Disclaimer of Liability. By entering into this Termination Agreement,
except as specifically provided herein, the Parties do not admit to, and
specifically disclaim any liability to each other arising out of, concerning or
relating, directly or indirectly, to (i) the Distribution Agreement, (ii) the
negotiation, formation or termination of the Distribution Agreement, (iii) the
negotiation or formation of this Termination Agreement, or (iv) the Product.
2. One-time Payment. Except as expressly provided in this Termination
Agreement, Zimmer shall pay Anika the gross sum of *** Dollars ($***) within ten
(10) days after the execution of this Termination Agreement in complete
satisfaction of any and all financial obligations of Zimmer to ▇▇▇▇▇ of any type
now existing, arising out of, concerning or relating, directly or indirectly, to
(i) the Distribution Agreement, (ii) the negotiation, formation or termination
of the Distribution Agreement, (iii) the negotiation or formation of this
Termination Agreement, or (iv) the Product.
3. Orthovisc Materials. Zimmer shall deliver, transfer, convey and assign
to Anika, within ten (10) days of the Termination Effective Date all such
rights, title and interest as it may have
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in and to the materials described on Exhibit A attached hereto (and subject to
the terms thereof), in all forms in which they exist, including but not limited
to, electronic format, hard copy, inventory and associated files required for
reproduction. Zimmer hereby grants to Anika the perpetual exclusive royalty-free
right to use such materials, unless a more limited grant is specified on Exhibit
▇. ▇▇▇▇▇▇ represents and warrants that such materials comprise substantially all
of the materials it has developed or produced expressly for the sale, marketing,
promotion and/or reimbursement of the Product and to which it has any right,
title or interest ("Orthovisc Materials"). Through December 31, 2000, upon
request from Anika, Zimmer shall take reasonable steps to do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered every further act, deed, conveyance, transfer and assurance necessary
to deliver such Orthovisc Materials and ▇▇▇▇▇▇'▇ rights, title and interest
thereto. Through December 31, 2000, Zimmer hereby agrees to deliver any
additional Orthovisc Materials not listed on Exhibit A to Anika immediately
after such additional Orthovisc Materials are discovered by Zimmer, and hereby
transfers, conveys and assigns to ▇▇▇▇▇ ▇▇▇▇▇▇'▇ rights, title and interest to
such materials. Furthermore, Zimmer shall retain no right, title or interest in
the Orthovisc Materials unless otherwise specified on Exhibit A. Anika
acknowledges that the Orthovisc Materials are provided in "AS IS" condition,
with all faults, and without any express or implied warranties or
representations of any kind.
4. Regulatory Materials. Within ten (10) days of the Termination Effective
Date, Zimmer shall deliver to Anika (i) all materials, in all forms in which
they exist, relating to any regulatory and reimbursement approvals and
authorizations of the Product obtained by or on behalf of Zimmer or its
affiliates, including but not limited to any and all correspondence regarding
reimbursement approvals obtained by or on behalf of Zimmer or its affiliates, as
well as any files relating thereto, within its control and (ii) copies of all
such materials to which it has access (together, "Regulatory Materials"). To the
fullest extent possible under applicable laws, Zimmer hereby grants, transfers,
assigns and conveys all of ▇▇▇▇▇▇'▇ right, title and interest in and to the
Regulatory Materials to Anika. In the event the Regulatory Materials are not
transferable, Zimmer hereby grants to Anika the perpetual exclusive royalty-free
right to use such Regulatory Materials. Through December 31, 2000, Zimmer hereby
agrees to deliver any Regulatory Materials not delivered upon execution of this
Termination Agreement to Anika immediately after such Regulatory Materials are
discovered by Zimmer, and grants Anika all of ▇▇▇▇▇▇'▇ rights, title and
interest in and to such materials. Upon request from Anika, through December 31,
2000, Zimmer shall take reasonable steps to do, execute, acknowledge and deliver
or cause to be done, executed, acknowledged and delivered every further act,
deed, conveyance, transfer and assurance necessary to deliver such Regulatory
Materials and ▇▇▇▇▇▇'▇ rights to use the Regulatory Materials.
5. Mutual Release. Except as expressly provided in this Termination
Agreement, the Parties, for and on behalf of themselves and each of their
respective future, current and/or former officers, directors, shareholders,
representatives, principals, agents, employees, trustees, partners, general
partners, limited partners, co-venturers, parents, subsidiaries, affiliates,
predecessors, successors, assigns, beneficiaries, heirs, executors,
administrators, insurers, attorneys and all persons acting by, through, under,
in concert with or on behalf of any of them hereby irrevocably and
unconditionally release and hereby completely and fully remise, release, acquit
and forever discharge each other, each of their respective future, current
and/or former officers, directors, shareholders, representatives, principals,
agents, employees, trustees, partners, general partners, limited partners,
co-venturers, parents, subsidiaries, affiliates, predecessors, successors,
assigns, beneficiaries, heirs, executors, administrators, insurers, attorneys
and all persons acting by, through, under, or in concert
-2-
with any of them, from all charges, complaints, claims, demands, liabilities,
obligations, actions, and causes of action of any kind or nature (including for
attorneys' fees, interest, expenses and costs actually incurred), whether at
law, in equity, or by statute, liquidated or unliquidated, known or unknown,
suspected or unsuspected, reasonably discoverable or not, present, fixed or
contingent, arising out of, concerning or relating, directly or indirectly, to
(i) the Distribution Agreement, (ii) the negotiation, formation or termination
of the Distribution Agreement, (iii) the negotiation or formation of this
Termination Agreement or (iv) the Product, which exist as of the Termination
Effective Date or may arise hereafter and which could be asserted in any forum,
including without limitation administrative, arbitral or judicial. Without
limiting the foregoing, the parties expressly acknowledge and agree that this
release shall encompass and include claims for fraud and fraudulent inducement.
6. Termination of Distribution Agreement. The Distribution Agreement shall
be terminated upon the Termination Effective Date. Upon the Termination
Effective Date, neither Party shall have any further rights or obligations under
the Distribution Agreement except as provided in Sections 7 and 8 hereof.
Termination of the Distribution Agreement shall not affect the rights and
obligations of the parties pursuant to this Termination Agreement.
7. Representations, Warranties, Obligations, Undertakings, Covenants and
Agreements Surviving Termination. Certain specified representations, warranties,
obligations, undertakings, covenants and agreements set forth in the
Distribution Agreement shall survive the termination thereof. Such
representations, warranties, obligations, undertakings, covenants and agreements
are incorporated into this Termination Agreement, and are expressly limited to,
Sections 8(h), 10, 12, 14, 15(a)(ii), 15(c)(i), 15(c)(ii), 15(c)(iii), 16(a)(i),
17(g) 17(h), 18, 20 and Annex A of the Distribution Agreement, subject to the
provisions of this Section 7 below:
(a) Licenses for Intellectual Property. The licenses granted to
Zimmer under Sections 15(a)(ii) and 16(a)(i) of the Distribution Agreement
shall become nonexclusive as of the Termination Effective Date, and shall
terminate altogether on December 31, 2000.
(b) Governing Law and Dispute Resolution. The provisions of Section
20 of the Distribution Agreement shall be expressly limited in application
to disputes, controversies, or claims arising out of (i) the surviving
provisions of the Distribution Agreement enumerated in the first paragraph
of this Section 7 or (ii) an alleged breach of this Termination Agreement,
which the Parties hereby agree shall be governed by Section 20 thereof,
and shall have no other force or effect.
(c) Existing Inventory. ▇▇▇▇▇▇'▇ right to dispose of the Product
pursuant to Section 17(h) of the Distribution Agreement shall terminate on
December 31, 2000. Prior to December 31, 2000, Zimmer may sell its
remaining Product inventory (including Product to which it holds title but
stores in Anika's refrigerators) in its ordinary course of business. The
parties hereby acknowledge that only sales consistent with past practices
(excluding any wholesale brokers) will be considered in the ordinary
course. Notwithstanding the foregoing, in no event shall Zimmer be
entitled to any selling price adjustments under the Distribution Agreement
(including but not limited to Section 7(b) thereof) for any Product
previously purchased by Zimmer, whether previously or hereafter resold by
Zimmer and regardless of the prices of such resale. Consistent with the
foregoing, the provisions adjusting the
-3-
purchase price of the Product pursuant to Section 7 of the Distribution
Agreement are hereby terminated and have no further force or effect.
Zimmer shall also continue to receive, process, ship, distribute, invoice,
service and collect all orders (and returns) for the Product in the
Territory consistent with its past practices. Zimmer shall also provide a
list of its existing customers of the Product to Anika or Anika's
designees. On or before January 31, 2001, Zimmer shall destroy its entire
remaining inventory. With respect to any Product purchased by Zimmer and
stored in Anika's refrigerators, Zimmer gives ▇▇▇▇▇ the express right and
obligation to destroy all such Product and shall be entitled to rely on
Anika's representations that such Product has been destroyed on or before
January 31, 2001.
(d) Indemnification. Sections 18(a)(i), (a)(ii), (b)(i) and (b)(ii)
of the Distribution Agreement shall be expressly limited in application to
the representations, warranties, obligations, undertakings, covenants and
agreements that survive pursuant to this Termination Agreement. Except as
otherwise expressly provided in this Termination Agreement, neither party
shall in any event be liable to the other for incidental, special or
consequential damages arising out of this Agreement, including but not
limited to loss of profits. Furthermore, Zimmer shall indemnify, defend
and hold harmless Anika, its present and former Affiliates, directors,
officers, shareholders, agents, employees, and representatives, and their
successors, all affiliated companies, heirs, administrators, and assigns,
and all persons acting by, through, under, or in concert with any of them,
from any employment, severance and other social employment obligations and
responsibilities of Zimmer for any of ▇▇▇▇▇▇'▇ employees, consultants,
agents or representatives.
8. Definitions and Abbreviations. Section 26 of the Distribution Agreement
defines particular words and phrases, some of which are incorporated into the
representations, warranties, obligations, undertakings, covenants and agreements
set forth in this Termination Agreement which survive the termination of the
Distribution Agreement. Such representations, warranties, obligations,
undertakings, covenants and agreements shall be construed and interpreted in
accordance with the definitions contained in Section 26 of the Distribution
Agreement; provided, however, Section 26 thereof shall have no force and effect
except as specifically provided in this Termination Agreement.
9. Successors and Assigns. This Termination Agreement shall bind the
Parties and their successors and assigns.
10. Severability. The Parties intend that if a court should declare or
determine any provision of this Termination Agreement to be illegal or invalid,
the validity of the remaining parts, terms, or provisions shall not be affected
thereby. The Parties intend that a court shall deem any illegal or invalid part,
term, or provision not to be a part of this Termination Agreement.
11. Entire Agreement. Except to the extent set forth herein, this
Termination Agreement sets forth the entire agreement between the Parties, and
fully supersedes any and all prior written or oral negotiations, commitments and
writings between the Parties pertaining to the subject matter hereof. No
promises, representations, understandings, warranties and agreements have been
made by any of the parties hereto except as referred to herein; and all
inducements to the making of this Agreement relied upon by either party hereto
have been expressed herein. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by the parties
-4-
or their successors or assigns. No waiver of any of the provisions of this
Agreement shall be valid unless in writing and signed by the party against whom
it is sought to be enforced.
12. No Reliance. Each party hereby represents to the other that it has
adequate information regarding all matters encompassed by this Termination
Agreement to make an informed and knowledgeable decision regarding the decision
to enter into this Termination Agreement, and that it has independently and
without reliance upon the other party made its own analysis and decision to
enter into this Termination Agreement. Further, each party acknowledges and
hereby verifies that the other party has not made any representations or
warranties in connection with this Termination Agreement, whether express or
implied, of any kind or character, except as expressly set forth herein.
13. Advice of Counsel. Each party to this Termination Agreement
acknowledges that it has had the benefit of advice of competent legal counsel
with respect to its decision to enter into this Termination Agreement.
[END OF TEXT]
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IN WITNESS WHEREOF, the Parties, by their duly authorized officers, have
executed this Termination Agreement as of the dates indicated.
▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: 11/10/00
ANIKA THERAPEUTICS, INC.
By: /s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman, President & CEO
Date: 11/10/00
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EXHIBIT A
ORTHOVISC MATERIALS
--------------------------------------------------------------------------------
MARKETING
--------------------------------------------------------------------------------
Master Sales Aid
--------------------------------------------------------------------------------
Patient Brochure and Holders
--------------------------------------------------------------------------------
Injection Technique Sales Aid
--------------------------------------------------------------------------------
Tent Card
--------------------------------------------------------------------------------
Product Monograph/Design Rationale (25 page & 50 page) *
--------------------------------------------------------------------------------
Patient Video
--------------------------------------------------------------------------------
Surgeon Video
--------------------------------------------------------------------------------
Surgeon Video Production in French, German, Italian
--------------------------------------------------------------------------------
Pocket Profiler
--------------------------------------------------------------------------------
Script Pads *
--------------------------------------------------------------------------------
Journal Reprints/Whitepapers
--------------------------------------------------------------------------------
▇▇▇▇: Acute Local Reactions after Intraarticular Hylan for Osteoarthritis
--------------------------------------------------------------------------------
Peyron: Intraarticular Hyaluronan Injections in the Treatment of
Osteoarthritis
--------------------------------------------------------------------------------
OV-SICOT SYMPOSIUM NEW
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇: Hyaluronan: biological role and function in articular joints
--------------------------------------------------------------------------------
Physician Premiums
--------------------------------------------------------------------------------
Long Sleeve Shirts
--------------------------------------------------------------------------------
BIC Pens
--------------------------------------------------------------------------------
Spring Pens
--------------------------------------------------------------------------------
Website*+
--------------------------------------------------------------------------------
Stock Photographs+
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SALES
--------------------------------------------------------------------------------
Sales Training Manuals
--------------------------------------------------------------------------------
Sales Training Manuals Translations
--------------------------------------------------------------------------------
Sales Training Video
--------------------------------------------------------------------------------
Customer Sales History (including sales to distributors & wholesalers) in units
and local currency.
--------------------------------------------------------------------------------
Customer lists and contact information for each customer (including name,
address, telephone number, fax number and e-mail addresses, to the extent that
any of the foregoing appear in existing ▇▇▇▇▇▇ records)+
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
OTHER
--------------------------------------------------------------------------------
Cambridge Pharma - Commercial Strategy Country by Country Incorporating
Clinical Positioning of Product and Approach to Funding
--------------------------------------------------------------------------------
Cambridge Pharma - Pharmacoeconomic Study (Retrospective Analysis that
demonstrates the clinical and economic contribution of Orthovisc use in
treatment)
--------------------------------------------------------------------------------
Covance Study
--------------------------------------------------------------------------------
Convention Material *
--------------------------------------------------------------------------------
Advertising Development
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
Launch Artwork
--------------------------------------------------------------------------------
Logo Development
--------------------------------------------------------------------------------
Master CD - Canadian French & English, CE English
--------------------------------------------------------------------------------
Strategic and Tactical Plans - Hamilton
--------------------------------------------------------------------------------
Update & Core Materials
--------------------------------------------------------------------------------
Canadian Translations
--------------------------------------------------------------------------------
French Translations
--------------------------------------------------------------------------------
Pop-up Stands
--------------------------------------------------------------------------------
Penguin Stands
--------------------------------------------------------------------------------
Direct Mail Brochure
--------------------------------------------------------------------------------
Spring Image
--------------------------------------------------------------------------------
Orthovisc Clinical Trial Records, Forms and Protocols +
--------------------------------------------------------------------------------
* denotes materials that are not complete
+ Web site: Anika shall have a perpetual, royalty-free, non-exclusive license to
use, copy, and display the information included in the materials for
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇. Zimmer acknowledges that all rights to the domain name
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ and all intellectual property related thereto are the sole and
exclusive property of Anika and hereby disclaim any rights thereto. Zimmer shall
retain all other rights in the information. Images of Zimmer products: Anika
shall have a perpetual, royalty-free, non-exclusive license to use, copy, and
display the images of Zimmer knee femoral components in the Orthovisc Materials.
Except as set forth in this Termination Agreement, Zimmer shall retain all other
rights in the images, and in all other images of its products. Customer lists:
Zimmer shall retain the right to use the customer lists in its own business.
Clinical trial records, forms, and protocols: Zimmer shall retain non-exclusive
rights, including copyrights, necessary and sufficient for Zimmer to continue to
use the forms and format of these materials in its own business. Trademarks,
trade names, etc.: Anika shall have no rights whatsoever in any trademarks,
trade names, or other intellectual property of Zimmer or of its affiliates,
parents, or agents.
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