EXECUTION COPY
Exhibit 10.2
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ASSET PURCHASE AGREEMENT
between
BRISTOL-MYERS SQUIBB COMPANY,
as Seller,
and
PAR PHARMACEUTICAL, INC.
as Purchaser
SALE OF SUMYCIN(R) BRAND
Dated as of March 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
SALE AND PURCHASE OF ASSETS
Section 1.1 Purchase and Sale.................................................1
Section 1.2 Transfer of Assets................................................1
Section 1.3 Assumed Liabilities...............................................3
Section 1.4 Closing...........................................................6
Section 1.5 Risk of Loss......................................................6
Section 1.6 Rebates; Return Handling..........................................6
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 2.1 Organization......................................................7
Section 2.2 Authority; Execution and Delivery; Enforceability.................7
Section 2.3 Consents and Approvals; No Violations.............................8
Section 2.4 Title to Acquired Assets..........................................8
Section 2.5 Financial Statements..............................................9
Section 2.6 Trademarks........................................................9
Section 2.7 No Other Seller Representations and Warranties....................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 3.1 Organization......................................................9
Section 3.2 Authority; Execution and Delivery; Enforceability................10
Section 3.3 Consents and Approvals; No Violations............................10
Section 3.4 Availability of Funds............................................10
Section 3.5 No Knowledge of Misrepresentations or Omissions..................10
Section 3.6 No Other Purchaser Representations or Warranties.................11
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ARTICLE IV
COVENANTS
Section 4.1 Confidentiality..................................................11
Section 4.2 Further Assurances...............................................11
Section 4.3 Transfer Taxes...................................................11
Section 4.4 [Intentionally Omitted]..........................................11
Section 4.5 Temporary Use of Certain Names and Information...................12
Section 4.6 Bulk Transfer Laws...............................................12
Section 4.7 Intercompany Arrangements........................................12
Section 4.8 Customer Notifications...........................................12
Section 4.9 Post-Closing Cooperation.........................................13
Section 4.10 Licenses.........................................................14
Section 4.11 Transfer of Regulatory Filings; Responsibility for Products......15
ARTICLE V
AMENDMENT
Section 5.1 Amendments and Waivers...........................................16
ARTICLE VI
SURVIVAL; INDEMNIFICATION
Section 6.1 Survival of Representations......................................16
Section 6.2 Indemnification by Seller........................................16
Section 6.3 Indemnification by Purchaser.....................................17
Section 6.4 Calculation of Losses............................................17
Section 6.5 Termination of Indemnification...................................17
Section 6.6 No Additional Representations....................................17
Section 6.7. Limitations on Liability.........................................18
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices..........................................................18
Section 7.2 Definitions; Interpretation......................................19
Section 7.3 Descriptive Headings; Seller Disclosure Schedule.................24
Section 7.4 Counterparts.....................................................24
Section 7.5 Entire Agreement.................................................24
Section 7.6 Fees and Expenses................................................24
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Section 7.7 Governing Law...................................................24
Section 7.8 Specific Performance............................................25
Section 7.9 Assignment......................................................26
Section 7.10 Successors and Assigns..........................................26
Section 7.11 Severability....................................................26
Section 7.12 Consent to Jurisdiction.........................................26
Section 7.13 Waiver of Jury Trial............................................27
EXHIBITS
Exhibit A Brand
Exhibit B Form of Assumption of Assumed Liabilities
Exhibit C Form of Bill of Sale
Exhibit D Form of Supply Agreement
Exhibit E Form of Trademark Assignment
Exhibit F Form of Promissory Note
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ASSET PURCHASE AGREEMENT dated as March 1, 2002 (this "Agreement"),
between BRISTOL-MYERS SQUIBB COMPANY, a Delaware corporation ("Seller"), and PAR
PHARMACEUTICAL, INC., a New Jersey corporation ("Purchaser").
Seller, directly or indirectly through its Affiliates, manufactures,
markets and sells in the Territory products under the trademarked brand listed
on Exhibit A hereto (the "Brand"). Seller desires to sell to Purchaser, and
Purchaser desires to purchase from Seller, the Acquired Assets (Section 7.2(b)
identifies the sections of this Agreement in which this term and other
capitalized terms used herein and not defined in Section 7.2(a) are defined)
related to the Brand.
ARTICLE I
SALE AND PURCHASE OF ASSETS
Section 1.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Seller shall, and shall cause its
Affiliates to, sell, assign, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase, acquire and accept from Seller and its Affiliates, all
the right, title and interest of Seller and such Affiliates in, to and under the
Acquired Assets for (a) an aggregate purchase price of $97,500 (the "Purchase
Price"), payable as set forth in Section 1.4, and (b) the assumption by
Purchaser of the Assumed Liabilities. The purchase and sale of the Acquired
Assets and the assumption of the Assumed Liabilities are referred to in this
Agreement collectively as the "Acquisition".
Section 1.2 TRANSFER OF ASSETS. (a) Subject to Section 1.2(b), the
term "Acquired Assets" means all Seller's and its Affiliates' right, title and
interest in, to and under those certain assets, as they exist at the time of
Closing, set forth below:
(i) the Transferred Intellectual Property;
(ii) the Transferred NDAs and all other regulatory files
(including correspondence, applications, approvals, licenses and
permits of Seller) exclusively relating to the sale, use, or marketing
of Products that are the subject of the Transferred NDAs with or from
any applicable regulatory authority in the Territory;
(iii) all market research, customer and sales information,
product literature, promotional materials and data, advertising and
display materials and all training materials in whatever medium (e.g.,
audio, visual or print) exclusively related to the Business or to the
Acquired Assets (including the Products), in each case to the extent
transferable in light of legal, contractual and practical
considerations; and
(iv) all records and recorded information, including customer
and supplier lists exclusively related to the Business, the Acquired
Assets or the Brand, other than the Retained Information, in each case
to the extent transferable in light of legal, contractual and practical
considerations.
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(b) Purchaser acknowledges and agrees that the Acquired Assets do not
include or confer any rights to market or sell any Products in any country
outside the Territory. Purchaser agrees that it will not register, apply to
register or otherwise use any Trademark in any country other than the Territory.
Purchaser also acknowledges and agrees that it is not acquiring any rights,
title or interest in, to and under any of the following assets (the "Excluded
Assets"):
(i) any real estate owned or leased by Seller or any of its
Affiliates;
(ii) any cash, cash equivalents and bank accounts of Seller or any
of its Affiliates;
(iii) the Names;
(iv) any Accounts Receivable;
(v) any manufacturing equipment and supplies and packaging assets
used in the manufacture of the Products;
(vi) any assets, properties or rights of Seller or any of its
Affiliates other than the Acquired Assets, including all
inventories ("Inventory") which are finished goods and
work-in-process inventories and samples of Products;
(vii) all rights, claims and credits of Seller or any of its
Affiliates, relating to any Excluded Asset or any Excluded
Liability, including any such items arising under insurance
policies and all guarantees, warranties, indemnities and
similar rights in favor of Seller or any of its Affiliates
relating to any Excluded Asset or any Excluded Liability;
(viii) any refunds or credits, claims for refunds or credits or rights
to receive refunds or credits from any Taxing Authority with
respect to Taxes paid or to be paid by Seller or any of its
Affiliates relating to any Pre-Closing Tax Period;
(ix) any records (including accounting records) related to Taxes
paid or payable by Seller or any of its Affiliates and all
financial and Tax records relating to the Business that form
part of Seller's or any of its Affiliates' general ledger;
(x) all records prepared in connection with the sale of the
Business, including bids received from third persons and
analyses relating to the Business, and all records which are
subject to attorney-client privilege;
(xi) all rights of Seller or any of its Affiliates under this
Agreement and the Related Instruments;
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(xii) (A) all rights of Seller in any and all regulatory files
(including correspondence, registrations, applications,
approvals, licenses and permits) that do not exclusively relate
to the sale, use, or marketing Products that are the subject of
the Transferred NDAs with or from any applicable regulatory
authority in the Territory; and (B) all rights of Seller in any
and all other regulatory files (including correspondence,
registrations, applications, approvals, licenses and permits)
that do not relate exclusively to the Business or the Acquired
Assets (including the Products);
(xiii) all Other Intellectual Property that is not Other Exclusive
Intellectual Property
(xiv) any internet or domain names relating to the Brand; and
(xv) all Retained Information.
Section 1.3 ASSUMED LIABILITIES. (a) Upon the terms and subject to the
conditions of this Agreement, Purchaser shall assume, effective as January 1,
2002, and from and after January 1, 2002 Purchaser shall pay, perform and
discharge when due, all the following liabilities, obligations and commitments
of Seller and its Affiliates, except to the extent such liabilities, obligations
and commitments are Excluded Liabilities (the "Assumed Liabilities"):
(i) all liabilities, obligations and commitments in respect of
any and all Products other than Shipped Products, including product
liability, breach of warranty or similar claims and other claims
(including all Proceedings relating to any such liabilities,
obligations or commitments);
(ii) all liabilities, obligations and commitments in respect
of any Proceedings to the extent arising out of or relating to,
directly or indirectly, the Business or the ownership, sale or lease of
any of the Acquired Assets arising from or after January 1, 2002;
(iii) all liabilities arising out of or relating to the return
of any Products from and after January 1, 2002, whether or not sold by
Seller or its Affiliates prior to, on or after such date, other than
any liabilities associated with (A) the return after January 1, 2002 of
Shipped Products which returns are a result of adulteration or
misbranding (within the meaning of the FDA Act or the rules and
regulations promulgated thereunder) by Seller and (B) the return during
the six (6) month period after January 1, 2002 of any Shipped Product
that on the date of return has an expiration date that is less than
three (3) months after such date of return, subject to a maximum
liability on the part of Seller under this subsection (iii)(B) of
$50,000 (with all such returns to be shipped at Seller's expense F.O.B.
the facility of Seller's designated Return Goods Processor, The
Ballantine Group, Inc.) (subsections A and B together, the "Return
Exceptions");
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(iv) all liabilities for Taxes arising out of the Business or
the Acquired Assets or the ownership, sale or lease of any of the
Acquired Assets, other than the Excluded Tax Liabilities, and all
liabilities for Taxes for which Purchaser is responsible pursuant to
Section 4.3;
(v) all liabilities, obligations and commitments arising out
of or relating to any rebates, price protection and discount
agreements, and chargebacks due a third party that are related to any
Product, including Shipped Products (whether or not manufactured by
Seller or its Affiliates prior to January 1, 2002 and whether under
Purchaser's or Seller's NDC Codes for the Product), where invoiced or
charged from and after January 1, 2002, except for such of the
foregoing as are the Seller's responsibility as set forth in Section
1.6(a);
(vi) all liabilities, obligations and commitments arising out
of or relating to any advertising or promotional liabilities due a
third party that are related to any Product other than Shipped Products
(whether or not manufactured by Seller or its Affiliates prior to
January 1, 2002 and whether under Purchaser's or Seller's NDC Codes for
the Products); and
(vii) all other liabilities, obligations and commitments of
whatever kind and nature, primary or secondary, direct or indirect,
absolute or contingent, known or unknown, whether or not accrued,
arising out of or relating to, directly or indirectly, the Acquired
Assets, the Business or the Brand or the ownership, sale or lease of
any of the Acquired Assets, in each case from and after January 1,
2002.
Purchaser shall not be obligated to reimburse Seller for any Assumed Liabilities
paid by Seller prior to Closing and that were incurred by Seller in the ordinary
course of business between January 1, 2002 and the Closing. Purchaser shall
reimburse Seller for any Assumed Liabilities paid by Seller prior to Closing and
that were incurred by Seller between January 1, 2002 and the Closing but not in
the ordinary course of business.
(b) Notwithstanding any other provision of this Agreement or any
Related Instrument, Purchaser shall not assume any Excluded Liability, each of
which shall be retained and paid, performed and discharged when due by Seller
and its Affiliates. The term "Excluded Liability" means:
(i) all liabilities, obligations and commitments of Seller or
its Affiliates not listed in Section 1.3(a);
(ii) account payables and liabilities, obligations and
commitments of Seller or any of its Affiliates existing immediately
prior to January 1, 2002 and arising out of the operation or conduct of
the Business prior to January 1, 2002;
(iii) subject to Sections 1.3(a)(iii) and 1.3(a)(v), any
liability, obligation or commitment of Seller or any of its Affiliates
directly and primarily related to any Excluded Asset;
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(iv) subject to Sections 1.3(a)(iii) and 1.3(a)(v), all
liabilities, obligations and commitments in respect of any and all
Shipped Products, including product liability, breach of warranty or
similar claims and other claims (including Proceedings relating to any
such liabilities, obligations or commitments);
(v) subject to Sections 1.3(a)(iii) and 1.3(a)(v), all
obligations, liabilities and commitments in respect of any claim,
action, or proceeding, including product liability claims
(collectively, a "Proceeding"), pending or, to Seller's Knowledge,
threatened in writing against Seller or its Affiliates in respect of
the Acquired Assets or the conduct of the Business to the extent
arising out of or relating to, directly or indirectly, the conduct of
the Business or the ownership, sale or lease of any of the Acquired
Assets prior to January 1, 2002;
(vi) subject to Sections 1.3(a)(v), all liabilities arising
out of or relating to the Return Exceptions and rebates or chargebacks
or any advertising or promotional liabilities related to any Shipped
Products;
(vii) all liabilities for Taxes arising out of the Business or
the Acquired Assets imposed upon Seller or its Affiliates or any
present or former Affiliate of Seller or its Affiliates for any
Pre-Closing Tax Periods ("Excluded Tax Liabilities"); and
(viii) any liability, obligation or commitment of Seller or
any of its Affiliates of any kind relating to employment, compensation
or benefits (including severance) for the past, present or future
employees of Seller or any of its Affiliates for all employment
relating to the Business prior to and through the Closing.
(c) Each of Purchaser and Seller hereby agrees to reimburse the other
party and such party's Affiliates, dollar for dollar, in the event that any of
the other party's or such party's Affiliate's customers (x) offset the cost of
any Products returned by such customer against accounts payable by such customer
to such other party or such other party's Affiliate or (y) such other party or
its Affiliates is required to issue a credit for the account of any customer for
returns, in each case (x) or (y) which are the responsibility of such
reimbursing party pursuant to this Section 1.3. The reimbursing party shall pay
the other party or such party's Affiliate promptly following receipt of notice
of any such offset by or issuance of credit to a customer (together with
supporting documentation). Seller and Purchaser shall, and each party shall
cause its respective Affiliates to, cooperate to ensure that a customer does not
offset returns of any Product against both Seller and Purchaser (or any of their
respective Affiliates).
(d) Neither party's obligations under this Section 1.3 will be subject
to offset or reduction by reason of any actual or alleged breach of any
representation, warranty or covenant contained in this Agreement or any Related
Instrument by such party or any right or alleged right to indemnification
hereunder.
Section 1.4 CLOSING. (a) The consummation of the transactions
contemplated by this Agreement (the "Closing") will take place on the date of
this Agreement, at 10:00 a.m., at the offices of Cravath, Swaine & Moore,
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Worldwide Plaza, 825 Eighth Avenue, New York, New York. The date on which the
Closing occurs is referred to herein as the "Closing Date." The Closing shall be
deemed to be effective as of 12:01 a.m. on the Closing Date.
(b) At the Closing, Seller shall deliver or cause to be delivered to
Purchaser, the following: (i) a duly executed Bill of Sale, (ii) a duly executed
Trademark Assignment, (iii) a duly acknowledged Assumption of Assumed
Liabilities and (iv) a duly executed Supply Agreement.
(c) At the Closing, Purchaser shall deliver to Seller, the following:
(i) cash in the amount of 50% of the Purchase Price by wire transfer of
immediately available funds to one or more accounts designated in writing by
Seller (such designation to be made at least two business days prior to the
Closing Date), (ii) a duly executed Assignment and Assumption Agreement, (iii) a
duly executed Trademark Assignment, (iv) a duly executed Assumption of Assumed
Liabilities and (iv) a duly executed Supply Agreement, and (v) the duly executed
Promissory Note.
Section 1.5 RISK OF LOSS. Until the Closing, any loss of or damage to
the Acquired Assets from fire, casualty or any other occurrence shall be the
sole responsibility of Seller or its Affiliates, as applicable.
Section 1.6 REBATES; RETURNS HANDLING.
(a) Seller agrees to be responsible for all rebates (e.g., Medicaid
rebates), price protection and discount agreements, chargebacks, and any other
post-sale rebates, refunds, price adjustments or other similar credits relating
to the Products ("Rebate Programs") that Seller is obligated to pay pursuant to
any such Rebate Programs for amounts charged to Seller's NDC codes for such
Products and that are invoiced by such Rebate Programs prior to April 1, 2002.
Purchaser shall pay and be responsible for (i) all Rebate Program amounts
charged to Purchaser's NDC codes for such Products and (ii) all Rebate Program
amounts that are charged to Seller's NDC codes for such Products and that are
invoiced by such Rebate Programs after April 1, 2002. All payments due under
this Section 1.06(a) for which Purchaser is responsible shall be made promptly
to Seller upon submission to Purchaser of invoices that describe the requested
payments in reasonable detail. In the event either party disputes an amount owed
under any Rebate Program, each party shall provide to the other copies of any
documents and records evidencing original rebate claims and any resubmissions of
such claims and data relating to unit rebate calculations in order to enable the
responsible party to resolve such disputed amount.
(b) Following the Closing, the Parties shall mutually agree upon the
content and joint (or if mutually agreed, one party's) issuance of a letter to
customers of the Products, advising such customers of Purchaser's and Seller's
respective responsibilities in connection with returns for credit as herein set
forth. Seller and Purchaser agree that during the six (6) month period from
January 1, 2002 to June 30, 2002, Seller shall be responsible for processing and
handling returns and issuance of credits of all Shipped Products. Seller shall
handle such returns and issue credits during such period in accordance with
Seller's then applicable returned goods policy; PROVIDED, that if any such
return credits issued by Seller following January 1, 2002 exceed the maximum
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amount for which Seller is to be liable under Section 1.3(a)(iii)(B), Purchaser
shall promptly reimburse Seller for the amount of credits issued by Seller in
excess of such maximum (payment to be made no later than ten business days
following receipt of an invoice from Seller indicating the amount owed).
Purchaser shall provide Seller with any information reasonably requested by
Seller from time to time regarding Purchaser's selling prices for the Product in
order to assist Seller in Seller's determination of the reimbursement prices for
returned Shipped Products. Such information shall be provided by Purchaser to
Seller promptly, and in any event within ten (10) business days, after Seller's
written request therefor. In the event that during such six (6) month period any
returns of Shipped Products are delivered to Purchaser, such returns shall be
shipped by Purchaser to Seller at Purchaser's expense. Any Product returned
after the six (6) month period shall be the responsibility of the Purchaser
(both as to the cost of any credits to be issued as well as for the processing
and handling of such returns). In the event that following such six (6) month
period any returns are delivered to Seller, such returns shall be shipped by
Seller to Purchaser and Purchaser shall reimburse Seller for the shipping costs
incurred. For the sake of clarity, during such six (6) month period, this
Section 1.6(b) shall not apply to any Product misshipped by Purchaser that is
returned by the customer for non-compliance with the terms of the customer's
order (including by way of example non-compliance with respect to quantity,
delivery date, pricing error, or delivery location), all of which, if received
by Seller, shall be returned by Seller to Purchaser at Purchaser's expense.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Seller Disclosure Schedule attached hereto
(the "Seller Disclosure Schedule"), Seller represents and warrants to Purchaser
as follows:
Section 2.1 ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of Seller and its Affiliates has all requisite corporate power and
authority to own, lease and operate the Acquired Assets and to carry on the
Business as they are presently conducted.
Section 2.2 AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. Seller
has the requisite corporate power and authority to execute and deliver this
Agreement and the Related Instruments, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Related Instruments and the
performance by Seller of its obligations hereunder and thereunder have been
authorized by all requisite corporate action on the part of Seller. This
Agreement has been validly executed and delivered by Seller and, assuming that
this Agreement has been duly authorized, executed and delivered by Purchaser,
constitutes, and each Related Instrument that is to be executed and delivered by
Seller will when executed and delivered by Seller, assuming that such Related
Instrument has been duly authorized, executed and delivered by Purchaser, to the
extent applicable, constitute a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject, as to
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enforcement, to applicable bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization or similar laws affecting creditors' rights generally
and to general equitable principles.
Section 2.3 CONSENTS AND APPROVALS; NO VIOLATIONS. (a) Neither the
execution and delivery of this Agreement nor any Related Instrument by Seller
nor the performance by Seller of its obligations hereunder or thereunder will
(i) violate the certificate of incorporation or by-laws of Seller, (ii) conflict
with or result in a violation or breach of, or constitute a default under,
directly or indirectly, any contract, lease, license, indenture, agreement,
commitment or other legally binding written arrangement (each, a "Contract"), to
which Seller is a party or by which the Acquired Assets are bound, or result in
the creation or imposition of any Lien upon any of the Acquired Assets or (iii)
violate or conflict with any law, rule, regulation, judgment, order or decree of
any court applicable to Seller or the Acquired Assets, except in the case of
clauses (ii) or (iii) for violations, breaches or defaults which, individually
or in the aggregate, would not (x) be reasonably likely to result in a material
adverse effect on the Acquired Assets, the Assumed Liabilities or the financial
position of the Business, taken as a whole, other than any such effects relating
to (a) United States or foreign economies in general or the industries relating
to the Business in general, (b) the announcement that the Business is for sale
or (c) the execution of this Agreement (including the disclosure of the identity
of Purchaser) and possible consummation of the transactions contemplated hereby
(a "Material Adverse Effect"), or (y) materially delay the consummation of the
transactions contemplated hereby.
(b) No filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the consummation by Seller of the
transactions contemplated by this Agreement, other than (i) compliance with and
filings under the HSR Act, if applicable, (ii) those that may be required solely
by reason of Purchaser's or any of Purchaser's Affiliates' (as opposed to any
other third party's) participation in the transactions contemplated hereby or by
the Related Instruments and (iii) such filings, permits, authorizations,
consents and approvals the absence of which, or the failure to make or obtain
which, individually or in the aggregate, would not be reasonably likely to have
a Material Adverse Effect or materially delay the consummation of the
transactions contemplated hereby.
Section 2.4 TITLE TO ACQUIRED ASSETS. Seller or an Affiliate of Seller
has, or as of the Closing Date will have, good and valid title to all material
Acquired Assets, except those sold or otherwise disposed of in the ordinary
course of business consistent with past practice and not in violation of this
Agreement, in each case free and clear of all Liens, other than Permitted Liens.
This Section 2.4 does not apply to the Transferred Intellectual Property which
is the subject of Section 2.6.
Section 2.5 FINANCIAL STATEMENTS. Schedule 2.5 sets forth the
"Statements of Net Sales and Product Contribution" for the Brand for the years
ended December 31, 1999, 2000, and 2001 and the monthly statement for the month
ending January 31, 2002 (the "Financial Statements"). The Financial Statements
have been prepared in accordance with Seller's accounting policies applied on a
consistent basis and fairly present, in all material respects, as of the dates
thereof and for the periods then ended the aggregate Product contribution (as
described therein) for the Business, taken as a whole. The Audited Financial
Statements, when delivered to Purchaser pursuant to Section 4.09(d), will be
prepared in accordance with Seller's accounting policies applied on a consistent
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basis and will fairly present, in all material respects, as of the dates thereof
the aggregate Product contribution (as described therein) of the Business, taken
as a whole. The aggregate Product contribution for the Business, taken as a
whole, as presented in the Audited Financial Statements for the years ended
December 31, 1999, 2000 and 2001, shall not reflect any material adverse change
from the aggregate Product contribution for the Business, taken as a whole,
presented in the Financial Statements as of such respective dates.
Section 2.6 TRADEMARKS.
(a) Schedule 2.6(a) sets forth a list of all material registered
trademarks, common law trademarks and service marks, and applications therefor,
used in the Business.
(b) Except as would not have a Material Adverse Effect, (i) Seller or
an Affiliate of Seller is the owner of all the registered Trademarks or
applications therefore in the Territory, and such registrations are valid,
enforceable and in full force and effect, (ii) to the Knowledge of Seller, no
Third Party has a superior right to Seller or Seller's Affiliates to use any of
the Trademarks set forth on Schedule 2.6(a), and (iii) none of the Trademarks is
subject to any contractual obligation restricting Seller's or its Affiliates'
use thereof or entitling others to use the same or in any way obligating Seller
or its Affiliates to make payments to others.
Section 2.7 NO OTHER SELLER REPRESENTATIONS OR WARRANTIES. Except for
the representations and warranties contained in this Article II, none of Seller,
its Affiliates or any other Person makes any other express or implied
representation or warranty on behalf of Seller or any of its Affiliates.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 3.1 ORGANIZATION. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation. Purchaser has all requisite corporate power and authority to own,
lease and operate its properties and to conduct its business as now being
conducted.
Section 3.2 AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY.
Purchaser has the requisite corporate power and authority to execute and deliver
this Agreement and the Related Instruments, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Related
Instruments and the performance by Purchaser of its obligations hereunder and
thereunder have been authorized by all requisite corporate action on the part of
Purchaser. This Agreement has been validly executed and delivered by Purchaser
and, assuming that this Agreement has been duly authorized, executed and
delivered by Seller, constitutes, and each Related Instrument that is to be
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executed and delivered by Purchaser will when executed and delivered by
Purchaser, assuming that such Related Instrument has been duly authorized,
executed and delivered by Seller, to the extent applicable, constitute a legal
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or similar laws
affecting creditors' rights generally and to general equitable principles.
Section 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. (a) Neither the
execution and delivery of this Agreement nor any Related Instrument by Purchaser
nor the performance by Purchaser of its obligations hereunder or thereunder will
(i) violate the certificate of incorporation or by-laws of Purchaser, (ii)
conflict with or result in a violation or breach of, or constitute a default
under, directly or indirectly, any Contract to which Purchaser is a party or by
which any of its properties or assets are bound or (iii) violate or conflict
with any law, rule, regulation, judgment, order or decree of any court
applicable to Purchaser, except in the case of clauses (ii) or (iii) for
violations, breaches or defaults which, individually or in the aggregate, would
not be reasonably likely to materially delay the consummation of the
transactions contemplated by this Agreement.
(b) No filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the consummation by Purchaser of
the transactions contemplated by this Agreement, other than (i) compliance with
and filings under the HSR Act, if applicable, (ii) those that may be required
solely by reason of Seller's or any of Seller's Affiliates' (as opposed to any
other third party's) participation in the transactions contemplated hereby or by
the Related Instruments and (iii) such filings, permits, authorizations,
consents and approvals the absence of which, or the failure to make or obtain
which, individually or in the aggregate, would not be reasonably likely to
materially delay the consummation of the transactions contemplated hereby.
Section 3.4 AVAILABILITY OF FUNDS. Purchaser has cash available
sufficient to enable it to finance and consummate the Acquisition and the other
transactions contemplated by this Agreement on the terms set forth herein.
Section 3.5 NO KNOWLEDGE OF MISREPRESENTATIONS OR OMISSIONS. Purchaser
has no knowledge that the representations and warranties of Seller made in this
Agreement qualified as to materiality are not true and correct, or that those
not so qualified are not true and correct in all material respects, and
Purchaser has no knowledge of any material errors in, or material omissions
from, the Seller Disclosure Schedule.
Section 3.6 NO OTHER PURCHASER REPRESENTATIONS OR WARRANTIES. Except
for the representations and warranties contained in this Article III, none of
Purchaser, its Affiliates or any other Person makes any other express or implied
representation or warranty on behalf of Purchaser or any of its Affiliates.
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ARTICLE IV
COVENANTS; LICENSE GRANTS
Section 4.1 CONFIDENTIALITY. (a) Purchaser acknowledges and agrees
that any and all other information provided to it by Seller or Seller's
representatives concerning Seller or its Affiliates and the Excluded Assets
shall be kept confidential by Purchaser and shall not be disclosed or otherwise
made available to the public.
(b) Each of Purchaser and Seller agrees that the terms of this
Agreement and the Related Instruments shall not be disclosed or otherwise made
available to the public and that copies of this Agreement and the Related
Instruments shall not be publicly filed or otherwise made available to the
public, except where such disclosure, availability or filing is required by
applicable law and only to the extent required by such law. In the event that
such disclosure, availability or filing is required by applicable law, each of
Purchaser and Seller (as applicable) agrees to use commercially reasonable
efforts to obtain "confidential treatment" of this Agreement and the Related
Instruments with the U.S. Securities and Exchange Commission (or the equivalent
treatment by any other Governmental Entity) and to redact such terms of this
Agreement and the Related Instruments as the other party shall request.
Section 4.2 FURTHER ASSURANCES. Each party shall from time to time
after the Closing, without additional consideration, execute and deliver such
further instruments and take such other action as may be reasonably requested by
the other party to make effective the transactions contemplated by this
Agreement and each Related Instrument. Purchaser shall not, and shall not permit
its Affiliates to, directly or indirectly induce, instruct, suggest as a course
of action or request customers who have purchased Products to return any of such
Products to Seller or Purchaser for credit or other consideration.
Section 4.3 TRANSFER TAXES. Except as otherwise provided herein, any
fees, charges, Taxes (excluding income taxes) or other payments required to be
made to any Governmental Entity in connection with the transfer of the Acquired
Assets and the assignment and assumption of the Assumed Liabilities pursuant to
the terms of this Agreement shall be paid and borne 100% by Purchaser. Seller
and Purchaser shall cooperate in timely making and filing all filings, Tax
Returns, reports and forms as may be required with respect to any Taxes payable
in connection with the transfer of the Acquired Assets.
Section 4.4 [Intentionally Omitted.].
Section 4.5 TEMPORARY USE OF CERTAIN NAMES AND INFORMATION. Purchaser
shall promptly, and in any event (x) within ninety (90) days after Closing
complete the revision of Product literature, and (y) within eighteen (18) months
after Closing (unless requested to be completed sooner by an applicable
regulatory authority), change the NDC number and complete the revision of all
packaging and labeling, in each case: (i) to delete all references to the Names
(other than appropriate references to Seller's responsibility for manufacturing)
and (ii) to delete all references to Seller's or its Affiliates' customer
service address or phone number. For a period of 90 days after the Closing Date,
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Purchaser may continue to distribute Product literature that uses any Names,
addresses or phone numbers to the extent that such literature exists on the
Closing Date, and Seller hereby grants to Purchaser rights under any copyrights
and other intellectual property owned by Seller (and covenants to cause each of
its Affiliates to grant Purchaser rights under any copyrights and other
intellectual property owned by such Affiliate) to the extent necessary to allow
Purchaser to so use such Product literature. In no event shall Purchaser use any
Names after the Closing in any manner or for any purpose different from the use
of such Names by Seller during the 90-day period preceding the Closing. Any use
of the Names by Purchaser pursuant to this Section 4.5 shall be in reasonable
conformity with the practices of Seller with respect to such Names as of the
Closing Date and shall be in a manner that is not intended to or is not
reasonably likely to harm or disparage Seller or any of its respective
Affiliates or the quality, reputation or goodwill of the Names. Purchaser
acknowledges that because its right to use the Names is pursuant to a
non-exclusive license from Seller to the extent necessary to allow Purchaser and
its Affiliates to market, distribute and sell the Products utilizing the labels
and packaging existing on or on order by Seller as of the Closing Date, any and
all goodwill developed by virtue of such use shall inure to the sole benefit of
Seller. "Names" means "Bristol-Myers Squibb Company", "Bristol-Myers Squibb",
"BMS", "Bristol-Myers Products", "B-MS", "Squibb", "E.R. Squibb & Sons",
"Apothecon", "Apothecon, Inc.", any variations, derivatives thereof or any other
logos or trademarks, trade names or service marks of Seller or its Affiliates
not listed on Schedule 2.6.
Section 4.6 BULK TRANSFER LAWS. Purchaser hereby waives compliance by
Seller and its Affiliates with the provisions of any so-called "bulk transfer
law" of any jurisdiction in connection with the sale of the Acquired Assets to
Purchaser.
Section 4.7 INTERCOMPANY ARRANGEMENTS. Seller and Purchaser
acknowledge and agree that, immediately prior to Closing, any contract, lease,
license, commitment or arrangement between the Business, on the one hand, and
Seller or any of its Affiliates (exclusive of the Business), on the other hand,
shall be terminated and be of no further force or effect, notwithstanding any
terms thereof to the contrary.
Section 4.8 CUSTOMER NOTIFICATIONS. Promptly after the Closing, Seller
shall notify all customers of the Business (i) of the transfer of the Acquired
Assets to Purchaser, (ii) that all purchase orders for Products received by
Seller or any of its Affiliates prior to the Closing Date but not filled as of
such date will be transferred to Purchaser; provided, that, to the extent that
any purchase order cannot be so transferred, Seller and Purchaser shall
reasonably cooperate with each other to ensure that such purchase order is
filled and that Purchaser receives the same economic benefit and assumes the
same liability associated with filling such purchase order as if such purchase
order had been so transferred, so long as the same does not adversely impact any
rebates or chargebacks or best pricing allowances or programs granted or
required to be given by Seller based on transactions entered into prior to
Closing or require any burdensome efforts on the part of Seller, and (iii) that
all subsequent purchase orders for Products should be sent to Purchaser or
Purchaser's Distributor. To the extent any on-going contract, commitment or
arrangement between Seller and any of Seller's Affiliates and any customer
exists on or prior to Closing with respect to any given Product(s), promptly
after the Closing Seller shall use its reasonable best efforts to terminate such
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contracts (but only with respect to such Product(s)) with effect as of the
Closing, so that Purchaser can enter into its own contract thereafter with such
customer for such Product(s) on such terms as Purchaser may determine.
Section 4.9 POST-CLOSING COOPERATION. (a) Purchaser and Seller shall
cooperate with each other, and shall cause their officers, employees, agents,
independent public accountants, Affiliates and representatives to cooperate with
each other, for a period of 180 days after Closing to ensure the orderly
transition of the Business from Seller to Purchaser and to minimize any
disruption to the Business and the other respective businesses of Seller and
Purchaser that might result from the transactions contemplated hereby. After
Closing, upon reasonable written notice, Purchaser and Seller shall furnish or
cause to be furnished to each other and their employees, counsel, auditors and
representatives access, during normal businesses hours, to such information and
assistance relating to the Business (to the extent within the control of such
party) as is reasonably requested for financial reporting and accounting
matters.
(b) After Closing, upon reasonable written notice, Purchaser and
Seller shall furnish or cause to be furnished to each other, as promptly as
practicable, such information and assistance (to the extent within the control
of such party) relating to the Business and the Acquired Assets (including
access to books and records) as is reasonably requested for the filing of all
Tax Returns, and making of any election related to Taxes, the preparation for
any audit by any Taxing Authority, and the prosecution or defense of any claim,
suit or proceeding related to any Tax Return. Seller and Purchaser shall
cooperate with each other in the conduct of any audit or other proceeding
relating to Taxes involving the Business. Purchaser shall retain the books and
records of Seller and its Affiliates included in the Acquired Assets for a
period of seven years after Closing. After the end of such seven-year period,
before disposing of such books or records, Purchaser shall give notice to such
effect to Seller and shall give Seller, at Seller's cost and expense, an
opportunity to remove and retain all or any part of such books or records as
Seller may select.
(c) Each party shall reimburse the other for reasonable out-of-pocket
costs and expenses incurred in assisting the other pursuant to this Section 4.9.
Neither party shall be required by this Section 4.9 to take any action that
would or would reasonably be expected to (a) unreasonably interfere with the
conduct of its business or unreasonably disrupt its normal operations (or, in
the case of Purchaser, the Business), (b) violate any attorney-client privilege
or violate any applicable laws or (c) breach any duty of confidentiality owed to
any Person whether such duty arises contractually, statutorily or otherwise;
provided, further, that Seller may redact any information directly and primarily
related to the Excluded Assets or not directly associated with the Business and
the Acquired Assets.
(d) Seller shall cause to be delivered to Purchaser as soon as
reasonably practical after the Closing Date but not later than sixty (60) days
after the Closing Date, an audited "Statement of Net Sales and Product
Contribution" for each Brand for the years ended December 31, 1999, 2000 and
2001 (the "Audited Financial Statements"), together with a report of
PricewaterhouseCoopers LLP, Seller's independent accountants, with respect
thereto. The Audited Financial Statements shall be prepared at Purchaser's
expense.
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Section 4.10 LICENSES.
(a) Seller hereby grants to Purchaser a non-exclusive and fully
paid-up right and license under the Other Intellectual Property, solely to make
and have made Products anywhere in the world and solely for the sale, marketing,
use, and distribution of the Products in the Territory, in each case solely
under the applicable Trademark. The foregoing license grant shall also include
any and all improvements developed subsequent to the Closing to any
manufacturing processes and know-how that are incorporated into the manufacture
of the Products by Seller.
(b) Purchaser expressly acknowledges and agrees that the grant of the
licenses pursuant to Section 4.10(a) are non-transferable and non-assignable,
except as part of a sale of all of Purchaser's rights, title and interest in and
to a Product where the purchaser thereof expressly assumes all obligations of
the Purchaser under this Agreement relating to such license. Purchaser expressly
acknowledges and agrees that Purchaser shall have no right to sublicense to or
share with any person any of the licenses granted to it pursuant to Section
4.10(a), except that Purchaser may sublicense either of such licenses to a
wholly-owned subsidiary of Purchaser or to a Third Party for the manufacture of
Products by such Third Party for sale to Purchaser; provided, however, that as a
condition precedent to the effectiveness of any such sublicense, Purchaser shall
cause each such wholly-owned subsidiary or Third Party that is to be a
sublicensee to agree in writing, for the benefit of Seller, to be bound by the
terms and conditions of this Section 4.10 and Purchaser shall provide a copy of
such writing to Seller; and provided, further, that if any such subsidiary
ceases to be a wholly-owned subsidiary of Purchaser or such Third Party ceases
to manufacture such Products for Purchaser, such sublicense shall immediately
terminate and become void without any action by Purchaser or Seller. Purchaser
covenants that it will use the licensed rights granted to it under Section
4.10(a) solely in accordance with the terms set forth in this Section 4.10.
Purchaser shall remain jointly and severally liable with any such sublicensee
for the observance by such sublicensee of the terms and conditions of this
Agreement. Seller retains all rights in and to the foregoing not expressly
licensed under this Section 4.10 or sold as Acquired Assets.
(c) Purchaser hereby grants to Seller a non-exclusive, fully paid-up,
irrevocable, worldwide, and sublicensable right and license under its rights,
title and interests in and to the Acquired Assets (and agrees that Seller may
cross-reference the Transferred NDAs) solely for (A) the manufacture by or on
behalf of Seller and its Affiliates of a Product for Purchaser or its
Affiliates; (B) the sale, use or distribution of any Product outside the
Territory, and the manufacture of any Product in or outside the Territory for
sale, use or distribution outside the Territory; and (C) internal research
purposes. Seller covenants that it will use the licensed rights solely in
accordance with the preceding sentence. Purchaser retains all rights in and to
the Acquired Assets not expressly licensed under this Section 4.10(c).
(e) Purchaser hereby acknowledges and agrees that neither Purchaser
nor its Affiliates shall interfere with, or have the right to prohibit (i) the
manufacture, sale, or distribution of the Products by Seller or its Affiliates
14
or any other person outside the Territory or (ii) the manufacture of Products by
Seller or its Affiliates or any other person outside or within the Territory for
use outside the Territory.
(f) Nothing in this Agreement or the Supply Agreement shall prohibit
the research, development, manufacture, marketing, distribution, sale or use by
Seller or any of its Affiliates of any products that compete with the Products
within or outside the Territory.
Section 4.11 TRANSFER OF REGULATORY FILINGS; RESPONSIBILITY FOR
PRODUCTS.
(a) Promptly after Closing and in any event within sixty (60) business
days after Closing, the parties shall file with the FDA the information required
pursuant to 21 C.F.R. Part 314, or any successor regulation thereto, regarding
the transfer of the Transferred NDAs from Seller to Purchaser. Seller shall file
the information required of a former owner, and Purchaser shall file the
information required of a new owner. Contemporaneously with such filings, Seller
also shall file with the FDA any required information regarding the transfer of
the INDs for the Transferred NDAs from Seller to Purchaser. The parties also
agree to use their reasonable efforts to take any and all other actions required
by the FDA, or other necessary U.S. Governmental Entity, if any, to effect the
transfer of the Transferred NDAs and the INDs from Seller to Purchaser. Seller
may retain an archival copy of the Transferred NDAs and the INDs, including
supplements and records that are required to be kept under applicable law, and
Seller shall treat such archived copies as Confidential Information (as defined
in the Supply Agreement) of Purchaser and disclosure of such information shall
be governed by the Supply Agreement.
(b) (i) After the Closing, Purchaser shall assume all regulatory
responsibilities under applicable laws and regulations to be assumed by
Purchaser in the Territory in connection with the Transferred NDAs and INDs
including responsibility for reporting any adverse drug events in connection
with the Products, and responsibility for compliance with the Prescription Drug
Marketing Act of 1987, as the same may be amended from time to time.
(ii) After the Closing, the parties shall reasonably agree upon
procedures to ensure an orderly transition from Seller to Purchaser of the
activities required to be undertaken by the holder of the Transferred NDAs,
including adverse experience reporting, quarterly and annual FDA reports,
complaint and sample tracking, and communication with health care professionals
and customers.
(iii) In order for the parties to comply with their respective
responsibilities under this subsection (iii) in connection with the reporting of
adverse drug events, to the extent either party hereto receives any information
regarding adverse drug events related to the use of any one of the Products,
whether such use is within or outside of the Territory, such party shall
promptly provide the other party with such information in accordance with a
mutually agreed to reporting procedure between Purchaser and Seller to be
determined with three months after closing.
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(iv) After the Closing, Purchaser shall assume all responsibility for
any and all FDA fee obligations for holders or owners of approved New Drug
Applications and approved, marketed prescription drug products relating to the
Products, including those defined under the Prescription Drug User Fee Act of
1992, for the Transferred NDAs.
(v) After the Closing, Seller shall direct all complaints or inquiries
concerning the Products in the Territory to Purchaser to the attention of
Purchaser's Medical Affairs Department or otherwise as required under the Supply
Agreement.
ARTICLE V
AMENDMENT
Section 5.1 AMENDMENTS AND WAIVERS. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. By an instrument in writing Purchaser, on the one hand, or Seller, on
the other hand, may waive compliance by the other party with any term or
provision of this Agreement that such other party was or is obligated to comply
with or perform.
ARTICLE VI
SURVIVAL; INDEMNIFICATION
Section 6.1 SURVIVAL OF REPRESENTATIONS. The representations and
warranties contained in this Agreement shall survive the Closing solely for
purposes of Article VII and shall terminate at 5 p.m. New York City time on the
twelve month anniversary of the Closing Date.
Section 6.2 INDEMNIFICATION BY SELLER. (a) Seller shall indemnify
Purchaser and its Affiliates and each of their respective officers, directors,
employees, stockholders, agents and representatives against, and hold them
harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses) ("Losses"), as incurred (payable promptly
upon written request), to the extent arising from; (i) any breach of any
representation or warranty of Seller that survives the Closing and is contained
in this Agreement; (ii) any breach of any covenant of Seller contained in this
Agreement requiring performance after the Closing; (iii) any Excluded Liability;
and (iv) any fees, expenses or other payments incurred or owed by Seller to any
brokers, financial advisors or comparable other Persons retained or employed by
it in connection with the transactions contemplated by this Agreement.
(b) Seller's indemnification obligations under this Section 6.2 shall
be limited as set forth in Section 6.2(b) of the Seller Disclosure Schedule.
(c) Purchaser acknowledges and agrees that its sole and exclusive
remedy with respect to any and all claims relating to this Agreement and the
Related Instruments, the Acquisition and the other transactions contemplated
hereby and thereby, the Businesses, the Acquired Assets and the Assumed
Liabilities (other than claims of, or causes of action arising from, fraud)
shall be pursuant to the indemnification provisions set forth in this Article
VI. In furtherance of the foregoing, Purchaser hereby waives, to the fullest
16
extent permitted under applicable law, any and all rights, claims and causes of
action (other than claims of, or causes of action arising from, fraud) it may
have against Seller or Seller's Affiliates arising under or based upon any
applicable law or arising under or based upon common law or otherwise (except
pursuant to the indemnification provisions set forth in this Section 6.2).
Section 6.3 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify
Seller, its Affiliates and each of their respective officers, directors,
employees, stockholders, agents and representatives against, and hold them
harmless from, any Loss, as incurred (payable promptly upon written request), to
the extent arising from (a) any breach of any representation or warranty of
Purchaser contained in this Agreement, (b) any breach of any covenant of
Purchaser contained in this Agreement requiring performance after the Closing,
(c) any Assumed Liability and (d) any fees, expenses or other payments incurred
or owed by Purchaser to any brokers, financial advisors or other comparable
Persons retained or employed by it in connection with the transactions
contemplated by this Agreement.
Section 6.4 CALCULATION OF LOSSES. The amount of any Loss for which
indemnification is provided under this Article VI shall be net of any amounts
recovered by the indemnified party under insurance policies with respect to such
Loss and shall be reduced to take account of any net Tax benefit realized by the
indemnified party arising from the incurrence or payment of any such indemnified
amount. In computing the amount of any such Tax benefit, the indemnified party
shall be deemed to recognize all other items of income, gain, loss deduction or
credit before recognizing any item arising from the receipt of any indemnity
payment hereunder or the incurrence or payment of any indemnified Loss. Any
indemnity payment hereunder shall be treated as an adjustment to the Purchase
Price for Tax purposes, unless a final determination (which shall include the
execution of a Form 870-AD or successor form) with respect to the indemnified
party or any of its Affiliates causes any such payment not to be treated as an
adjustment to such price for federal income Tax purposes.
Section 6.5 TERMINATION OF INDEMNIFICATION. The obligations to
indemnify and hold harmless any party, (a) pursuant to Section 6.2(a)(i) or
6.3(a), shall terminate on the twelve-month anniversary of the Closing Date and
(b) pursuant to the other clauses of Sections 6.2 and 6.3, shall not terminate;
provided, however, that such obligations to indemnify and hold harmless shall
not terminate with respect to any item as to which the Person to be indemnified
shall have, before the expiration of the applicable period, previously made a
claim by delivering a notice of such claim (stating in reasonable detail the
basis of such claim) to the party to be providing the indemnification.
Section 6.6 NO ADDITIONAL REPRESENTATIONS. Purchaser acknowledges that
it and its representatives have received or been afforded the opportunity to
review prior to the date hereof all written materials which Seller was required
to deliver or make available, as the case may be, to Purchaser pursuant to this
Agreement on or prior to the date hereof. Purchaser acknowledges that it and its
representatives have been permitted full and complete access to the books and
records, facilities, equipment, tax returns, contracts, insurance policies (or
summaries thereof) and other properties and assets of the Business that it and
its representatives have desired or requested to see or review, and that it and
its representatives have had a full opportunity to meet with the officers and
17
employees of Seller and its Affiliates to discuss the Business. Purchaser
acknowledges that none of Seller, its Affiliates or any other Person has made
any representation or warranty, expressed or implied, as to the accuracy or
completeness of any information regarding the Business, the Brand or the
Acquired Assets furnished or made available to Purchaser and its
representatives, except as expressly set forth in this Agreement or the Seller
Disclosure Schedule, and none of Seller, its Affiliates or any other Person
shall have or be subject to any liability to Purchaser or any other Person
resulting from the distribution to Purchaser, or Purchaser's use of, any such
information, and any information, documents or material made available to
Purchaser in any "data rooms", management presentations or in any other form in
expectation of the transactions contemplated hereby. Except as expressly set
forth in the representations and warranties set forth in Article II of this
Agreement, Purchaser is purchasing the Acquired Assets "as is", "where is" and
"with all faults". Without limiting the generality of the foregoing, except as
expressly set forth in the representations and warranties set forth in Article
II of this Agreement, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 6.7 LIMITATIONS ON LIABILITY. Notwithstanding any provision
herein, neither Seller nor Purchaser shall in any event be liable to the other
party or its Affiliates, officers, directors, employees, stockholders, agents or
representatives on account of any indemnity obligation set forth in Section
6.02(a)(i) or 6.03(a), for any indirect, special, incidental, consequential or
punitive damages (including, but not limited to, lost profits, loss of use,
damage to goodwill or loss of business).
ARTICLE VII
MISCELLANEOUS
Section 7.1 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given upon receipt if delivered
personally, or when sent if mailed by registered or certified mail (return
receipt requested) or by reputable overnight express courier (charge prepaid) or
transmitted by facsimile (with confirmation of transmittal) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Seller, to:
Bristol-Myers Squibb Company
P.O. Box 4000
Route 206 at Province Line Road
Princeton, NJ 08543-4000
Telephone: (609) 252-4311
Facsimile: (609) 252-4232
Attention: Vice President and Senior Counsel --
PRI & WSBD
18
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
Attention: Thomas E. Dunn, Esq.
(b) if to Purchaser, to:
Par Pharmaceutical, Inc.
One Ram Ridge Road
Spring Valley, NY 10977
Telephone: (914) 425-7100
Facsimile:
Attention: Scott Tarriff, President and CEO
with a copy to:
Kirkpatrick & Lockhart LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 536-3900
Facsimile: (212) 536-3901
Attention: Jay Hecht
Section 7.2 DEFINITIONS; INTERPRETATION. (a) For purposes of this
Agreement:
"Accounts Receivable" shall mean all accounts receivable, notes
receivable and other indebtedness due and owed by any third party to Seller or
any of its Affiliates arising or held in connection with the Business.
"Affiliate" shall mean, with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the specified Person. For purposes of this definition, the term "Control"
as applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management of that Person, whether
through ownership of voting securities or otherwise.
"Assumption Of Assumed Liabilities" shall mean the Assumption of
Assumed Liabilities in substantially the form of Exhibit B.
"Bill of Sale" shall mean the Bill of Sale in substantially the form
of Exhibit C.
"Business" shall mean the business of marketing and selling the
Products constituting the Brand in the Territory using the Trademarks, as
conducted by Seller or its Affiliates as of December 31, 2001.
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"Controlled By" shall mean with respect to any Other Intellectual
Property, Other Exclusive Intellectual Property, data, or regulatory filing or
registration, any Other Intellectual Property, Other Exclusive Intellectual
Property, data, regulatory filing or registration that a Party owns, has a
license to, or otherwise uses and has the ability to grant to the other Party
access, a license or a sublicense (as applicable) to such Other Intellectual
Property, data, regulatory filing or registration as provided for herein without
violating the terms of any agreement or other arrangement with any Third Party
existing at the time such Party would be first required hereunder to grant the
other Party such access, license or sublicense.
"FDA Act" means the United States Food, Drug and Cosmetic Act, as
amended from time to time.
"Governmental Entity" shall mean any Federal, state, local or non-U.S.
government or any court of competent jurisdiction, legislature, governmental
agency, administrative agency or commission or other governmental authority or
instrumentality, U.S. or non-U.S.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"IND" means an Investigational New Drug Application filed with the
United States Food and Drug Administration.
"Knowledge" shall mean, with respect to Seller, the actual knowledge
of the representatives of Seller set forth on Schedule 7.2(a)(i), without any
such representative having made any special inquiry or investigation.
"Lien" shall mean any lien, security interest, pledge, mortgage or
similar encumbrance.
"Other Intellectual Property" means (a) all processes, specifications
and know-how (including trade secrets and proprietary knowledge to the extent
any exists) used to manufacture the Products as of the Closing Date and (b) all
trade dress relating to the Brand and the copyrights used for product literature
of the Products distributed as of the Closing Date, in the case of each of (a)
and (b) solely to the extent Controlled By Seller, used in the conduct of the
Business in the Territory as of the Closing Date and not Other Exclusive
Intellectual Property.
"Other Exclusive Intellectual Property" means (a) all processes,
specifications and know-how (including trade secrets and proprietary knowledge
to the extent any exists) exclusively used to manufacture the Products as of the
Closing Date, and (b) all trade dress relating exclusively to the Brand and the
copyrights exclusively covering product literature for the Products distributed
as of the Closing Date, which are currently owned and Controlled By Seller and
used exclusively in the conduct of the Business as of the Closing Date (and not
used at any time during the five year period prior to the Closing Date for any
20
products (other than the Products) or in any other business of Seller or its
Affiliates, whether within or outside the Territory).
"Permitted Liens" shall mean, collectively (a) Liens for Taxes or
other governmental charges which are not due and payable, may be paid without
penalty or are being contested in good faith by appropriate proceedings, (b)
mechanics, warehousemens, materialmens, contractors, workmens, repairmens,
employee's carriers liens, and other similar Liens arising or incurred in the
ordinary course of business, (c) the rights, if any, of third parties, appearing
in product advertisements for the Brand being transferred as part of the
Acquired Assets, (d) Liens arising under original purchase price conditional
sales contracts and equipment leases with third parties entered into in the
ordinary course of business, (e) other imperfections of title, licenses or
encumbrances, if any, which do not, individually or in the aggregate, materially
impair the continued use and operation of the assets to which they relate in the
Business, as presently conducted, and (f) all Liens approved in writing by
Purchaser.
"Person" shall mean any individual, firm, group, corporation,
partnership, limited liability company, trust, joint venture or other
organization or entity (including any Governmental Entity).
"Pre-Closing Tax Period" shall mean all taxable periods ending on or
before the Closing Date and the portion ending the Closing Date of any taxable
period that includes but does not end on the Closing Date.
"Products" shall mean the products represented by the SKUs listed on
Schedule 7.2(a)(ii) for the Brand.
"Product Registration" shall mean the approvals, registrations,
applications, licenses and permits (including, but not limited to, the
Transferred NDAs) for each Product which have been received in order to market
or sell same in the Territory (and related submissions to and correspondence
with the regulatory authority responsible for the Product Registration).
"Promissory Note" shall mean the Promissory Note evidencing the
obligation of Purchaser to pay Seller cash in the amount of 50% of the Purchase
Price on the date of the one year anniversary of the Closing Date, without
interest, in the form of Exhibit F.
"Rebate Programs" has the meaning set forth in Section 1.6(a).
"Related Instruments" shall mean the Promissory Note, the Bill of
Sale, the Assumption of Assumed Liabilities, the Trademark Assignment and the
Supply Agreement.
"Retained Information" shall mean any and all books and records
prepared and maintained by Seller in connection with the Business, including all
regulatory files (including correspondence with regulatory authorities),
research data, marketing data, laboratory books, batch records and stability
studies, that do not relate exclusively to the Business or otherwise are
21
appropriately retained by Seller in connection with Sellers' or its Affiliates'
conduct of the Business prior to the Closing Date.
"Specifications" shall have the meaning assigned to it in the Supply
Agreement.
"Shipped Products" shall mean any Products manufactured by or on
behalf of Seller and shipped to a third party prior to January 1, 2002.
"Supply Agreement" shall mean the Supply Agreement of even date
herewith between Seller and Purchaser in the form of Exhibit D.
"Taxes", or "Tax" in the singular form, shall mean any and all taxes,
levies or other like assessments, including, but not limited to, income,
transfer, gains, gross receipts, excise, inventory, property (real, personal or
intangible), custom duty, sales, use, license, withholding, payroll, employment,
capital stock and franchise taxes, imposed by a Taxing Authority and any
interest, penalty, addition to tax or additional amount due or imposed with
respect to any such tax by any Taxing Authority.
"Taxing Authority" shall mean any Federal, state, provincial, local or
foreign government, any subdivision, agency, commission or authority thereof or
any quasi-governmental body exercising tax regulatory authority.
"Tax Return" shall mean any report, return or other information filed
with any Taxing Authority with respect to Taxes imposed upon or attributable to
the operations of the Business.
"Territory" means the United States, Puerto Rico and Guam. Any other
United States territories or possessions are not included in the Territory.
"Trademarks" shall mean the trademarks, and the trademark
registrations and applications therefor, in each case listed on Schedule 2.6(a),
together with the goodwill associated therewith. For sake of clarity, the
Trademarks do not include any marks associated with the use of the Products
outside of the Territory, nor do the Trademarks include the names "Bristol-Myers
Squibb Company", "Bristol-Myers Squibb", "BMS", "Bristol-Myers Products",
"B-MS", "Squibb", "E.R. Squibb & Sons", "Apothecon", "Apothecon, Inc.", any
variations, derivatives thereof or any other logos or trademarks, trade names or
service marks of Seller or its Affiliates.
"Trademark Assignment" shall mean the Trademark Assignment in
substantially the form of Exhibit E.
"Transferred Intellectual Property" shall mean, collectively, (a) the
Trademarks and (b) any Other Exclusive Intellectual Property.
"Transferred NDAs" shall mean the Abbreviated New Drug Applications
for the Sumycin(R) Product in the form of syrup and tablets (it being understood
that Sumycin(R) capsules are not included in the Brand, the Products or the
22
Transferred NDAs), requesting permission to place a drug on the market in
accordance with 21 CFR Part 314, and all supplements filed pursuant to the
requirements of the FDA, including all filings, correspondence, and documents
exclusively concerning the Sumycin(R) product which are necessary for FDA
approval to market the Sumycin(R) product in the Territory.
(b) The following terms have the meanings set forth in the Sections
set forth below:
Term Section
---- -------
Acquired Assets 1.2(a)
Acquisition 1.1
Agreement Preamble
Assumed Liabilities 1.3(a)
Brand First Recital
Closing 1.4(a)
Closing Date 1.4(a)
Contract 2.3
Excluded Assets 1.2(b)
Excluded Liability 1.3(b)
Excluded Tax Liability 1.3(b)
Financial Statements 2.5
Inventory 1.2(b)
Losses 6.2(a)
Material Adverse Effect 2.3(a)
Names 4.5
Purchase Price 1.1
Purchaser Preamble
Return Exceptions 1.3(a)
Seller Preamble
Seller Disclosure Schedule Article II Preamble
(c)(i) In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
(ii) The definitions of the terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (A) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (B) any reference
23
herein to any Person shall be construed to include the Person's successors and
assigns, (C) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (D) all references herein to Articles, Sections
or Exhibits shall be construed to refer to Articles, Sections and Exhibits of
this Agreement unless the context expressly states otherwise and (E) all
references herein to Schedules shall be construed to refer to Schedules in the
Seller Disclosure Schedule.
Section 7.3 DESCRIPTIVE HEADINGS; SELLER DISCLOSURE SCHEDULE. The
headings contained in this Agreement, in the Seller Disclosure Schedule, in any
Exhibit hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any matter set forth in any provision, subprovision, section or
subsection of the Seller Disclosure Schedule shall be deemed set forth for all
purposes of the Seller Disclosure Schedule to the extent relevant. The Seller
Disclosure Schedule and all Exhibits annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in the Seller Disclosure Schedule or any
Exhibit annexed hereto but not otherwise defined therein, shall have the meaning
as defined in this Agreement. The inclusion of any matter on any Schedule in the
Seller Disclosure Schedule shall not be deemed an admission by Seller that such
listed matter has or would have a Material Adverse Effect.
Section 7.4 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other party.
Section 7.5 ENTIRE AGREEMENT. This Agreement, the Related Instruments
and the Confidentiality Agreement, along with the Seller Disclosure Schedule and
Exhibits hereto and thereto, contain the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings relating to such subject
matter. Neither party shall be liable or bound to any other party in any manner
by any representations, warranties or covenants relating to such subject matter
except as specifically set forth herein or in the Related Instruments or the
Confidentiality Agreement. In the event of any conflict between the provisions
of this Agreement (including the Seller Disclosure Schedule (and the
introduction thereto) and Exhibits hereto), on the one hand, and the provisions
of the Related Instruments (including the schedules and exhibits thereto) and/or
the Confidentiality Agreement, on the other hand, the provisions of this
Agreement shall control.
Section 7.6 FEES AND EXPENSES. Regardless of whether or not the
transactions contemplated by this Agreement are consummated, each party shall
bear its own fees and expenses incurred in connection with the transactions
contemplated by this Agreement and the Related Instruments.
Section 7.7 GOVERNING LAW. This Agreement and any disputes arising
under or related thereto (whether for breach of contract, tortious conduct or
otherwise) shall be governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
24
entirely within such State, without regard to the conflicts of law principles of
such State.
Section 7.8 SPECIFIC PERFORMANCE. The parties hereto agree that if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
Section 7.9 ASSIGNMENT. This Agreement and the rights and obligations
hereunder may not be assigned by any party hereto (other than by operation of
law in connection with a merger or consolidation or sale of all or substantially
all the assets of either party) without the prior written consent of the other
party; provided, however, that Purchaser may assign its rights but not its
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Purchaser without the prior written consent of Seller provided, that, Purchaser
fully and unconditionally guarantees the obligations of such entity; provided,
further, that no assignment shall limit or affect the assignor's obligations
hereunder. Any attempted assignment in violation of this Section 7.9 shall be
void.
Section 7.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto, their successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person or persons any right, benefits
or remedies of any nature whatsoever under or by reason of this Agreement.
Section 7.11 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof (or any portion thereof)
in any circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the parties shall negotiate in good faith with a view to the
substitution therefor of a suitable and equitable solution in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid provision; provided, however, that the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
Section 7.12 CONSENT TO JURISDICTION. Each of Purchaser and Seller
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of
the State of New York, New York County, and (b) the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement, any Related Instrument or any
transaction contemplated hereby or thereby. Each of Purchaser and Seller agrees
to commence any such action, suit or proceeding either in the United States
District Court for the Southern District of New York or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in
the Supreme Court of the State of New York, New York County. Each of Purchaser
and Seller further agrees that service of any process, summons, notice or
document by U.S. registered mail to such party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in New York with respect to any matters to which it has submitted to
25
jurisdiction in this Section 7.12. Each of Purchaser and Seller irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement, any Related Instrument or the
transactions contemplated hereby and thereby in (i) the Supreme Court of the
State of New York, New York County or (ii) the United States District Court for
the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
Section 7.13 WAIVER OF JURY TRIAL. Each party hereto hereby
waives to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement or any Related Instrument or
any transaction contemplated hereby or thereby. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement and
the Related Instruments, as applicable, by, among other things, the mutual
waivers and certifications in Section 7.12 and this Section 7.13.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BRISTOL-MYERS SQUIBB COMPANY
By: /s/
------------------------------------
Name:
Title:
PAR PHARMACEUTICAL, INC.
By: /s/
------------------------------------
Name:
Title:
26
EXHIBIT A
TO ASSET PURCHASE
AGREEMENT
Brand
ANDA 60-400 Sumycin Oral Suspension
ANDA 61-147 Sumycin Tablets
Sumycin Capsules are excluded.
27