exv10w5






Exhibit 10.5




Execution Copy




ASSIGNMENT AND ASSUMPTION AGREEMENT




     This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), is made as of September
3, 2010 (the “Effective Date”), by and between S2 Therapeutics, Inc. f/k/a Wythe
Therapeutics, Inc., a Tennessee corporation (“S2”), and Santarus, Inc., a Delaware
corporation (“Santarus”). Each of S2 and Santarus is referred to herein individually as a
“party” and collectively as the “parties.”



     WHEREAS, S2 and Patheon Pharmaceuticals Inc. (“Patheon”) are parties to that certain
Manufacturing Services Agreement, dated as of May 26, 2010, that certain Capital Expenditure and
Equipment Agreement, dated as of May 26, 2010 (the “Equipment Agreement”), and that certain
Quality Agreement, dated as of May 26, 2010, each as amended from time to time (collectively, the
“Patheon Agreements”), relating to the manufacture of the Product;



     WHEREAS, S2, Santarus and VeroScience, LLC (“VeroScience”) have entered into a
Distribution and License Agreement dated the date hereof (the “License Agreement”),
pursuant to which S2 and VeroScience licensed to Santarus certain exclusive rights to Manufacture
and Commercialize the Product in the Territory;



     WHEREAS, pursuant to the License Agreement, S2 has agreed to assign all right, title and
interest under the Patheon Agreements, and Santarus has agreed to assume all of S2’s obligations
thereunder; and



     WHEREAS, the parties desire to execute and deliver this Agreement for the purpose of effecting
such assignment and assumption.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:



     1. Definitions. Unless otherwise defined herein, all capitalized terms used in
this Agreement shall have the meanings set forth in the License Agreement.



     2. Agreement and Assumption. Subject to the terms of the License Agreement, S2 hereby
assigns to Santarus, and Santarus hereby accepts and assumes all of S2’s rights, obligations, title
and interest in, to and under the Patheon Agreements. From and after the Effective Date, S2 shall
have no further liabilities or obligations under the Patheon Agreements other than any liabilities
or obligations for any claim by Patheon arising out of or in connection with the Patheon Agreements
from activities prior to the Effective Date, except for those obligations described on Schedule
2.8(a) of the License Agreement assumed by Santarus in accordance with the terms and conditions of
the License Agreement. S2 shall indemnify Santarus in connection with any such claims arising out
of or in connection with the Patheon Agreements from activities prior to the Effective Date in
accordance with Section 11.1(b) of the License Agreement. Santarus shall indemnify S2 in
connection with any claims arising out of or in connection with the Patheon Agreements from
activities following the Effective Date in accordance with Section 11.1(c) of the License
Agreement.



 









 





     3. Equipment. Without limiting anything contained in Section 2 above, from and after
the Effective Date, Santarus shall, upon the reasonable request of S2, use commercially reasonable
efforts to permit Patheon to use the Dedicated Manufacturing Equipment (as defined in the Equipment
Agreement) on S2’s behalf; provided, that any such use shall be consistent with the terms
and conditions of the License Agreement; provided, further, that in no event shall
such use diminish or otherwise interfere with Santarus’s rights under the Equipment Agreement,
including, without limitation, Santarus’s rights to the Dedicated Manufacturing Equipment or the
ability of Patheon to use the Dedicated Manufacturing Equipment for the benefit of Santarus. The
terms and conditions applicable to any such use of the Dedicated Manufacturing Equipment by Patheon
on S2’s behalf shall be set forth in a written agreement mutually agreed among Santarus, S2 and
Patheon or an amendment to the Equipment Agreement entered into between Santarus and Patheon.



     4. Representations and Warranties. Each of the parties represents and warrants that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its
incorporation, and has full corporate power and authority to enter into this Agreement and to carry
out the provisions hereof; (b) it is duly authorized to execute and deliver this Agreement and to
perform its obligations hereunder, and the person executing this Agreement on its behalf has been
duly authorized to do so by all requisite corporate action; (c) this Agreement is legally binding
upon it and enforceable in accordance with its terms and the execution, delivery, and performance
of this Agreement by it does not conflict with any agreement, instrument, or understanding, oral or
written, to which it is a party or by which it may be bound, nor violate any material applicable
law; and (d) it is not aware of any action, suit, inquiry, or investigation instituted by any
entity which questions or threatens the validity of this Agreement.



     5. Miscellaneous.



          (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.




          (b) This Agreement (including any claim or controversy arising out of or relating to this
Agreement) shall be governed by, interpreted under, and construed and enforced in accordance with
the laws of New York, without regard to the conflict of laws principles thereof.




          (c) This Agreement may be amended or modified only by a written instrument executed by all of
the parties.




          (d) If any term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void, unenforceable or against its
regulatory policy, such determination shall not affect the enforceability of any others or the
remainder of this Agreement.




          (e) This Agreement may be executed in any number of counterparts (including by facsimile or
electronic signature), each of which will be deemed an original as against the party whose
signature appears thereon, but all of which taken together will constitute but one and the same
instrument.







 









 








          (f) Nothing in this Agreement shall be construed to be a modification of, or limitation on,
any provision of the License Agreement, including the representations, warranties and agreements
set forth therein.




          (g) This Agreement, the Patheon Agreements and the License Agreement contain the entire
understanding of the parties with respect to the subject matter of this Agreement. All express or
implied agreements and understandings, either oral or written, made on or before the Effective Date
(other than the provisions of the License Agreement), are expressly superseded by this Agreement.




[Signature Page Follows]









 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to
be executed by their respective officers thereunto duly authorized as of the date first above
written.



	 	 	 	 	 	 	 

	 
	S2 THERAPEUTICS, INC.	 	SANTARUS, INC.
	 
	By: 	 /s/ Charles P. Sutphin	 	By: 	  /s/ Gerald T. Proehl
	 	Name: 	 Charles P. Sutphin	 	 	Name: 	 Gerald T. Proehl
	 	Title:	 President and CEO	 	 	Title:	 President and CEO








SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT