MUTUAL TERMINATION AGREEMENT
Exhibit 10.1
This Mutual Termination Agreement (this “Agreement”) is entered as of October 29, 2009,
between Amicus Therapeutics, Inc., a Delaware corporation (“Amicus”), and Shire Pharmaceuticals
Ireland Ltd., a corporation organized under the laws of Ireland (“Shire”).
W I T N E S S E T H:
WHEREAS, Shire and Amicus entered into that certain License and Collaboration Agreement (the
“Original Agreement”) dated as of November 7, 2007; and
WHEREAS, Shire and Amicus have determined that it is in their respective best interests to
terminate the Original Agreement effective immediately rather than upon the one hundred eighty
(180) days’ notice provided under such Section 15.3.1 of the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and
agreements contained in this Agreement and intending to be legally bound, the Parties hereto agree
as follows:
1. Termination of Original Agreement. Effective as of the date hereof, the Original
Agreement shall be terminated in its entirety, including that Sections 15.5 and 15.6 shall be of no
further force or effect, except that Sections 14.1-14.4 (and all definitions in the Original
Agreement that give meaning to the capitalized terms in such Sections) shall survive such
termination. Except for the obligations set forth under this Agreement and the survival of the
obligations under the Original Agreement set forth above, all obligations between Shire and Amicus
as defined in the Original Agreement are terminated as of the date of this Agreement.
2. Termination of Licenses. Effective as of the date hereof, the licenses granted by
Amicus to Shire under the Original Agreement shall be terminated and of no further force or effect.
3. Termination Payment. Shire shall pay to Amicus Five Million One Hundred and
Ninety-Seven Thousand Four Hundred and Twenty-Five Dollars ($5,197,425.00) within ten (10) Business
Days after the date hereof in full and fair settlement of all development cost sharing obligations
through the date of this Agreement and any and all other liabilities or obligations that Shire may
have under the Original Agreement. Without limiting the foregoing, Amicus acknowledges that it
shall not be entitled to any further payment or reimbursement of costs or expenses from Shire under
the Original Agreement.
4. Data, Regulatory Filings, and Regulatory Correspondence. Within thirty (30) days
after the date hereof, Shire shall disclose (to the extent Shire has not already disclosed to
Amicus) all data and regulatory correspondence in Shire’s or its Affiliates’ possession or Control
with respect to the Licensed Products Developed under the Original Agreement. Amicus shall be
perpetually and irrevocably free to use, disclose and sublicense, on a fully paid-up, royalty free
basis such data and regulatory correspondence to Develop, Commercialize, Manufacture and otherwise exploit the Licensed Products, or other products containing a Compound in Amicus’s sole
discretion. Shire shall assign and transfer, or cause to be assigned and transferred, to Amicus all
Regulatory Filings solely for the Licensed Products, including without limitation all orphan drug
designations currently held by Shire related to all Licensed Products (the “Orphan Drug
Designations”), and shall take such actions and execute such other instruments, assignments and
documents as may be necessary to effect the transfer of rights under such Regulatory Filings,
including with out limitation the Orphan Drug Designations, to Amicus. In each case, unless
otherwise prohibited by any applicable Laws, the foregoing assignment shall be made within thirty
(30) days after the date hereof.
5. Press Release. On or shortly after the effective date of this Agreement, each
Party shall have the right to release a press release announcing (or incorporating an announcement
of) this Agreement and the termination of the relationship of the Parties. The parties will share
the contents of such releases that relate to the termination sufficiently in advance of the
announcement to permit comment, and each party shall make reasonable efforts to accommodate such
comments.
6. Representations and Warranties of Amicus. Amicus represents and warrants to Shire
as follows:
a. Organization. Amicus is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
b. Authorization. The execution, delivery and performance by Amicus of this Agreement
have been duly authorized by all necessary corporate action and do not and will not (i) require any
consent or approval of its stockholders or (ii) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in effect having
applicability to it or any provision of its charter documents.
c. Binding Agreement. This Agreement is a legal, valid and binding obligation of
Amicus enforceable against it in accordance with its terms.
7. Representations and Warranties of Shire. Shire hereby represents and warrants to
Amicus as follows:
a. Organization. Shire is a corporation duly organized, validly existing and in good
standing under the laws of Ireland.
b. Authorization. The execution, delivery and performance by Shire of this Agreement
have been duly authorized by all necessary corporate action and do not and will not (i) require any
consent or approval of its stockholders or (ii) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in effect having
applicability to it or any provision of its charter documents.
c. Intellectual Property. Shire has not (i) granted any sublicences to any one or
more of its Affiliates or Third Parties in connection with the Compounds or the Licensed Products,
(ii) made or developed any Shire Inventions in connection with its activities under the Original
Agreement or the Licensed Products, and (iii) filed any patent applications directly related to the Licensed Compounds.
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d. Binding Agreement. This Agreement is a legal, valid and binding obligation of
Shire enforceable against it in accordance with its terms.
8. Miscellaneous.
a. Definitions. Unless otherwise defined in this Agreement, all capitalized terms
used herein shall have the meanings ascribed to them in the Original Agreement.
b. Severability. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction.
c. Notices. Any consent, notice or report required or permitted to be given or made
under this Agreement by one of the parties hereto to the other shall be in writing, delivered
personally or by facsimile (and promptly confirmed by telephone), postage prepaid (where
applicable), addressed to such other party at its address indicated below, or to such other address
as the addressee shall have furnished in writing to the addressor and shall be effective upon
receipt by the addressee.
| If to Amicus: | Amicus Therapeutics, Inc. | |||
| 0 Xxxxx Xxxxx Xxxxx | ||||
| Xxxxxxxx, XX 00000 | ||||
| Fax: (000) 000-0000 | ||||
| Attention: Xxxx X. Xxxxxxx CEO & President | ||||
| With a copy to: General Counsel at the same address. | ||||
| If to Shire: | Shire Pharmaceuticals Ireland Ltd. | |||
| 0 Xxxxxxxxx | ||||
| Xxxxxxxx Xxxxxxxx Xxxxxx | ||||
| Xxxxxx 00 | ||||
| Xxxxxxx | ||||
| Fax: 00 000 0 000 0000 | ||||
| Attention: Legal Department |
d. Applicable Law. This Agreement shall be governed by and interpreted under the laws
of the State of New York, excluding its conflicts of laws principles.
e. Entire Agreement; Amendments. This Agreement constitutes the entire understanding
between the Parties with respect to the subject matter hereof and supersedes all prior or
contemporaneous oral communications, agreements or discussions with respect to the subject matter
hereof including, without limitation, the Original Agreement. This Agreement may be amended or
modified only by a writing signed by each of the Parties.
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f. Headings. The headings of this Agreement are for convenience of reference and shall
not form part of, or affect the interpretation of, this Agreement.
g. Waiver. The waiver by either Party of any right hereunder or the failure to
perform or of a breach by the other Party shall not be deemed a waiver of any other right hereunder
or of any other breach or failure by said other Party whether of a similar nature or otherwise.
h. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed an original, but both of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, each of the Parties, by their duly authorized officers, has executed this
Agreement as of the date first written above.
| SHIRE PHARMACEUTICALS IRELAND LTD. | ||||
| By: | /s/ XXXXXX XXXXXXXXXXXX | |||
| Name: Xxxxxx Xxxxxxxxxxxx | ||||
| Title: Director | ||||
| AMICUS THERAPEUTICS, INC. | ||||
| By: | /s/ XXXX X. XXXXXXX | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: President and CEO | ||||
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