Exhibit 10.62
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "AGREEMENT") is dated as of the 21st
day of December, 2004, by and between FSC Laboratories, Inc. ("FSC") and Par
Pharmaceutical, Inc. ("PAR"). FSC and Par are referred to individually as a
"Party", and collectively as the "Parties". Capitalized terms used herein shall
have the meanings assigned to such terms in the ***/FSC Asset Purchase Agreement
(as defined below) unless otherwise defined herein.
BACKGROUND STATEMENT
FSC has purchased certain assets from *** relating to the Isoptin product
line and FSC has agreed to sell to Par the New Drug Application relating to such
Isoptin Product line (the "Registration", as further defined herein) in
accordance with the terms and conditions of this Agreement.
The parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. In addition to the terms defined above and other terms
defined in other Sections of this Agreement, the following terms shall have the
meanings set forth below for purposes of this Agreement:
(a) "***/FSC ASSET PURCHASE AGREEMENT" means the Asset Purchase
Agreement entered into between FSC and *** under which *** has
agreed to sell to FSC certain assets, including the Registration.
(b) "*** AGREEMENTS" means, the ***/FSC Asset Purchase Agreement and the
Manufacturing Agreement entered into between FSC and *** under which
*** will manufacture and sell to FSC finished dosages of certain
verapamil products.
(c) "AFFILIATES" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by, or under direct
or indirect common control with, such Person. For purposes of this
definition, a Person shall be deemed to control another Person if
(a) it owns or controls more than fifty percent (50%) of the voting
equity of the other Person (or other comparable ownership if the
Person is not a corporation) or (b) in the absence of the ownership
of at least fifty percent (50%) of the voting equity or in the case
of a non-corporate entity, if it has the direct or indirect power to
cause the direction of the management and policies of such
corporation or non-corporate entity, as applicable.
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
(d) "BRANDED PRODUCT(S)" means any Products offered for sale and/or sold
under the trademark "ISOPTIN".
(e) "GENERIC PRODUCT" means any sustained release verapamil not bearing
the Isoptin trademark.
(f) "OTHER AGREEMENTS" means, collectively, the Pass-Through Supply
Agreement, the Economic Arrangements Agreement and the Registration
License Agreement.
(g) "PRODUCT" means all dosage forms, formulations, strengths and
package sizes and types of Isoptin SR currently marketed by *** or
any of its Affiliates and all dosage forms, formulations, strengths
and package sizes and types, whether or not currently marketed by
*** or any of its Affiliates.
(h) "REGISTRATION" means the New Drug Application ("NDA") and all
supplements thereto applicable to the Product, including, without
limitation, the Registration listed on Schedule 1.1(g).
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) The words "hereof," "herein," "hereto" and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
(b) The terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
(c) The terms "dollars" and "$" shall mean United States dollars.
(d) The word "including" shall mean including without limitation and the
words "include" and "includes" shall have corresponding meanings.
(e) With respect to any particular action or agreement, the use of the
words a Party "shall" or "will" herein shall also mean that such
Party "shall cause" the particular action to be performed.
ARTICLE II
PURCHASE AND SALE
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and conditions
contained herein, at the Closing (as defined below), FSC shall sell, transfer,
convey and assign to Par, and Par shall purchase and accept from FSC, all right,
title and interest of FSC in and to the Registration (the "TRANSFERRED ASSETS").
2
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
2.2 EXCLUDED ASSETS. The Transferred Assets shall not include (i) the
trademark "Isoptin" registered in the United States Patent and Trademark Office
under Registration Number 771,062, or (ii) any other assets, rights, properties
or interests not specifically included in the Transferred Assets.
2.3 ASSUMED LIABILITIES. On the Closing Date, Par shall assume all of
the following "Assumed Liabilities":
(a) PRODUCT LIABILITY CLAIMS. All damages, losses, expenses,
liabilities, claims or other damages, including reasonable costs of
investigation, interest, penalties and attorneys' fees
(collectively, "LOSSES") arising out of claims of third parties due
to the use or sale of any Generic Product (whether or not defective)
sold after the Closing Date by Par or any of its Affiliates and all
Losses arising out of claims of third parties due to or relating to
any voluntary or involuntary recall of the Generic Product sold on
or after the Closing Date.
2.4 EXCLUDED LIABILITIES. Par shall not assume any liabilities not
specifically and explicitly stated in this Agreement; including, but not limited
to, any liabilities that arise out of the sales of Branded Products, and any
liabilities that arise from the *** Agreements or any other agreement between
FSC and ***.
ARTICLE III
PURCHASE PRICE; PAYMENT
3.1 PURCHASE PRICE. The total purchase price for the Transferred Assets
shall be Fifteen Million Dollars ($15,000,000) (the "PURCHASE PRICE"), payable
in immediately available funds directly to the account designated by FSC.
3.2 PAYMENT OF PURCHASE PRICE. Par shall pay the purchase price on the
Closing Date in accordance with Section 4.2.
ARTICLE IV
CLOSING
4.1 CLOSING DATE. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at a time as may be mutually agreed
upon by Par and FSC and at such place as may be mutually agreed upon by Par and
FSC, or if mutually agreed to telephonically. At the Closing, FSC and Par shall
make the payments and deliveries as provided in Section 4.2.
4.2 TRANSACTIONS AT CLOSING. At the Closing, subject to the terms and
conditions hereof:
(a) In consideration of payment by Par of the Purchase Price, FSC shall:
3
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
(i) transfer and convey to Par all of the Transferred
Assets, and FSC shall execute and deliver to Par a bill of sale and
an assignment and assumption agreement ("Assignment and Assumption
Agreement") in the form of Exhibit A, and such other good and
sufficient agreements, assignments, documents or instruments of
transfer and conveyance as shall be necessary to vest in Par title
to all of the Transferred Assets;
(ii) deliver to Par a letter from FSC to the FDA in the
form of Exihbit B, duly executed by FSC, transferring the rights to
the Registration to Par; and
(iii) execute and deliver to Par (A) the Registration
License Agreement in the form of Exhibit C, (B) the Pass-Through
Supply Agreement is the form of Exhibit D, and (B) the Economic
Arrangements Agreement in the Form of Exhibit E.
(b) In consideration for transfer of the Transferred Assets, Par shall:
(i) pay to FSC the Purchase Price in full by wire
transfer of immediately available funds as per Section 3.1 above;
(ii) execute and deliver to FSC the Assignment and
Assumption Agreement in the form of Exhibit A;
(iii) execute and deliver to FSC (A) the Registration
License Agreement in the form of Exhibit C, (B) the Pass-Through
Supply Agreement is the form of Exhibit D, and (B) the Economic
Arrangements Agreement in the Form of Exhibit E; and
(iv) deliver to FSC such other documents and
instruments as may be reasonably necessary to effect or evidence the
transactions contemplated by this Agreement.
4.3 COORDINATION WITH *** TRANSACTION.
----------------------------------
(a) Should FSC, for any reason, at any time and regardless of fault,
fail to complete this transaction or fail to complete the ***
Agreements or otherwise fail to transfer to Par beneficial ownership
of the Transferred Assets, contemplated in this agreement, FSC shall
immediately refund the entire Purchase Price directly to Par,
subject to the provisions of Section 7.1.
(b) In the event Par fails to receive full title and ownership of the
Transferred Assets, FSC shall fully cooperate with Par and shall
take such actions as Par may request in making any legal or
equitable claims against *** under the *** Agreements. At Par's
4
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
request, FSC shall engage counsel of Par's choosing and shall permit
Par to exercise full control over any legal proceeding, including
settlement thereof. The costs of any such proceeding, including
attorneys' fees, shall be paid by the Parties in proportion to their
recoveries in such proceeding. FSC shall promptly remit to Par any
amounts recovered from *** in respect of Par's damages.
Additionally, at Par's request, to the extent permitted by
applicable law FSC shall assign to Par, in writing, any legal or
equitable claims FSC may have against *** that may arise out of the
***/FSC Asset Purchase Agreement, which may have a bearing on Par's
receipt of full title and ownership of the Transferred Assets or
otherwise damage Par in connection with this Agreement, provided,
however, that in the event of any such assignment, Par shall proceed
with diligence to prosecute any such claim on behalf of FSC to the
extent the assigned claim includes damages suffered by FSC under the
***/FSC Asset Purchase Agreement other than those damages suffered
by Par (the "FSC damages").Par shall promptly remit to FSC any
recoveries from *** constituting FSC damages that are in excess of
any Losses (as defined below) actually suffered by Par. To the
extent that a claim relates solely to FSC damages, Par shall not
compromise or release any such assigned claim for damages owing to
FSC pursuant hereto without the prior written consent of FSC.
ARTICLE V
REPRESENTATIONS OF FSC
FSC hereby represents, warrants and covenants to Par as follows:
5.1 ORGANIZATION. FSC is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware. FSC has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as is now being conducted.
5.2 DUE AUTHORIZATION. FSC has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
and the execution and delivery of this Agreement and the performance of all of
its obligations hereunder have been duly authorized by FSC, including, without
limitation, by its board of directors. The signing, delivery and performance of
this Agreement by FSC is not prohibited or limited by, and will not result in
the breach of or a default under, any provision of the Certificate of
Incorporation, Bylaws or other formation documents of FSC, or of any material
agreement or instrument binding on FSC, or of any applicable Law, order, writ,
injunction or decree of any court or governmental instrumentality, except for
such prohibition, limitation or default which would not prevent consummation by
FSC of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by FSC and constitutes the legal, valid and binding
obligations of FSC, enforceable against FSC in accordance with its terms, except
as enforceability may be limited or affected by applicable bankruptcy,
5
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
insolvency, moratorium, reorganization or other laws of general application
relating to or affecting creditors' rights generally.
5.3 NO CONFLICTS; ENFORCEABILITY. The execution, delivery and
performance of this Agreement and its compliance with the terms and provisions
hereof does not and will not conflict with or result in a breach of any of the
terms and provisions of or constitute a default, with or without the passage of
time and the giving of notice, under (i) a loan agreement, guaranty, financing
agreement, license, agreement affecting a product or other agreement or
instrument binding or affecting FSC or FSC's property; (ii) the provisions of
FSC's charter or operative documents or bylaws; or (iii) any order writ,
injunction or decree of any court or governmental authority entered against FSC
or by which any of FSC's property is bound;
5.4 COMPLIANCE WITH THE LAW. There are no proceedings pending or, to
FSC's knowledge, threatened, which could result in the revocation, cancellation
or suspension of any Registration. FSC is the sole and exclusive owner of the
Registration. The Registration is in full force and effect.
5.5 OFFICERS AND EMPLOYEES. As of the date of this Agreement, to the
knowledge of FSC, no officer or employee of the corporation is in violation of
any term of any employment contract, patent disclosure agreement, proprietary
information agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant relating to the right of any such officer
or employee to be employed by FSC because of the nature of the business
conducted or to be conducted by FSC or relating to the use of trade secrets or
proprietary information of others, and the continued employment of FSC's
officers and key employees does not subject FSC or Par to any liability to third
parties as a result of the existence or terms of any such contracts or
agreements.
5.6 LITIGATION. To the Knowledge of FSC there is no action, suit,
litigation, proceeding, claim, governmental investigation or administrative
action pending or, to FSC's Knowledge, threatened directly or indirectly
involving the Trademark, the Registration or the transactions contemplated
hereby or FSC's ability to perform its obligations hereunder and under the Other
Agreements. Furthermore, to FSC's knowledge there is no action, suit,
litigation, proceeding, claim, lien, judgment, governmental investigation or
administrative action pending or threatened against any officer of FSC, for
which FSC could be made a party, found liable or otherwise be legally
responsible, which may relate to the Trademark, the Registration, or the
transactions contemplated hereby.
5.7 FINANCIAL CONDITION. No insolvency proceeding of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, has been
commenced by or against FSC or any of their assets or properties, nor, to the
knowledge of FSC, is any such proceeding threatened. FSC has not taken any
action in contemplation of the institution of any such insolvency proceedings.
FSC and its Affiliates are in compliance in all material respects with all Laws
applicable to the ownership and operation of its business to the extent that
such may have any bearing on its ability to own and to transfer to Par the
6
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
Transferred Assets free and clear of any and all encumbrances, to assign any
claims that it may have against *** as they may arise including passing any and
all damages received from *** to Par in respect of any damages that may be
suffered by Par in connection with this Agreement together with the ***/FSC
Asset Purchase Agreement, or to otherwise meet its obligations under this
Agreement.
5.8 BROKERS, ETC. No broker, investment banker, agent, finder or other
intermediary acting on behalf of FSC or under the authority of FSC is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
directly or indirectly in connection with any of the transactions contemplated
hereby.
5.9 TITLE. FSC is the sole and exclusive owner of the Registration and
FSC has not assigned or granted any licenses to the Transferred Assets; and
there are no Affiliates of FSC or any third parties that have any legal title to
or beneficial interest in any of the Transferred Assets nor any license rights
thereto. At the Closing, Par will receive (a) full beneficial ownership of all
of the Transferred Assets and (b) legal title to all of the Transferred Assets,
free and clear of all Encumbrances (except for the Encumbrances set forth on
Section 5.4(b) of the Disclosure Schedule in the ***/FSC Asset Purchase
Agreement, the rights of the parties to the Searle Manufacturing Agreements and
any licenses granted back to FSC pursuant to the Registration License Agreement
(the "PERMITTED Encumbrances")).
ARTICLE VI
REPRESENTATIONS AND COVENANTS OF PAR
6.1 ORGANIZATION. Par is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware. Par has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as is now being conducted.
6.2 DUE AUTHORIZATION. Par has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and the execution and delivery of this Agreement and the performance of all of
its obligations hereunder have been duly authorized by Par, including, without
limitation, by its board of directors. The signing, delivery and performance of
this Agreement by Par is not prohibited or limited by, and will not result in
the breach of or a default under, any provision of the Certificate of
Incorporation, Bylaws or other formation documents of Par, or of any material
agreement or instrument binding on Par, or of any applicable Law, order, writ,
injunction or decree of any court or governmental instrumentality, except for
such prohibition, limitation or default which would not prevent consummation by
Par of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid and binding
obligation of Par, enforceable against Par in accordance with its terms, except
as enforceability may be limited or affected by applicable bankruptcy,
7
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
insolvency, moratorium, reorganization or other laws of general application
relating to or affecting creditors' rights generally.
6.3 NO CONFLICTS; ENFORCEABILITY. The execution, delivery and
performance of this Agreement and its compliance with the terms and provisions
hereof does not and will not conflict with or result in a breach of any of the
terms and provisions of or constitute a default, with or without the passage of
time and the giving of notice, under (i) a loan agreement, guaranty, financing
agreement, license, agreement affecting a product or other agreement or
instrument binding or affecting Par or Par's property; (ii) the provisions of
Par's charter or operative documents or bylaws; or (iii) any order writ,
injunction or decree of any court or governmental authority entered against Par
or by which any of Par's property is bound;
6.4 LITIGATION. There is no action, suit, litigation, proceeding, claim,
governmental investigation or administrative action pending or, to Par's
knowledge, threatened directly or indirectly involving the transactions
contemplated hereby or Par's ability to perform its obligations hereunder and
under the Other Agreements.
6.5 FINANCIAL CONDITION. No insolvency proceeding of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, has been
commenced by or against Par or any of their assets or properties, nor, to the
knowledge of Par, is any such proceeding threatened. Par has not taken any
action in contemplation of the institution of any such insolvency proceedings.
6.6 BROKERS, ETC. No broker, investment banker, agent, finder or other
intermediary acting on behalf of Par or under the authority of Par is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
directly or indirectly in connection with any of the transactions contemplated
hereby.
6.7 MAINTENANCE OF REGISTRATION. Par shall take all actions reasonably
necessary for maintaining the Registration, including the filing of annual
reports and adverse event notices; provided, however, that Par's obligation
under this Section shall cease in the event that (i) no products are sold under
the Registration for a period of six (6) consecutive months or (ii) FSC (and
Searle or its Affiliates or designees) are the only parties selling product
under the Registration, and in either event Par shall have the right to assign
the Registration to FSC.
ARTICLE VII
LIMITATION OF LIABILITY
7.1 EXCEPT WITH REGARD TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF
A PARTY, NEITHER PARTY OR ANY OF SUCH PARTY'S AFFILIATES SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY OR ANY OF ITS AFFILIATES FOR ANY CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT AND LOSSES
INDEMNIFIABLE HEREUNDER SHALL NOT INCLUDE SUCH DAMAGES, EXCEPT TO THE EXTENT
8
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
SUCH OTHER PARTY OR SUCH OTHER PARTY'S AFFILIATE IS REQUIRED TO PAY SUCH AMOUNT
TO A THIRD PARTY. THE FOREGOING NOTWITHSTANDING, THERE SHALL BE NO LIMIT ON OR
IMPEDENCE ON THE PASSING THROUGH TO PAR OF ANY DAMAGES RECEIVED FROM *** IN ANY
FASHION. ADDITIONALLY, TO THE EXTENT THAT ANY LOSSES INCURRED UNDER THIS
AGREEMENT ARE SOLELY DUE TO THE FAULT OF ***, THE AMOUNT PAYABLE DIRECTLY BY A
PARTY (THE "PAYING PARTY") TO THE OTHER PARTY FOR CLAIMS UNDER THIS AGREEMENT
DUE TO SUCH FAULT OF *** SHALL BE CAPPED AT THE AMOUNTS RECEIVABLE FROM *** FOR
SUCH CORRESPONDING CLAIMS AS MAY BE DETERMINED BY A COURT OR ARBITRAL BODY
EXERCISING JURISDICTION OR IN A SETTLEMENT, AS APPLICABLE, BEFORE ANY TYPE OF
"SET-OFF" DUE TO CLAIMS, COUNTER CLAIMS OR DEFENSES BY *** ARISING SOLELY
AGAINST THE PAYING PARTY. SUCH "SET-OFF" AMOUNTS SHALL ONLY BE COUNTED IF
ARISING IN A SETTLEMENT TO THE EXTENT THAT THE PAYING PARTY AGREES TO SUCH
AMOUNTS IN THE SETTLEMENT, SUCH AGREEMENT NOT TO BE UNREASONABLY WITHHELD.
ARTICLE VIII
INDEMNIFICATION
8.1 PAR INDEMNIFICATION OF FSC. Par agrees to indemnify and hold
harmless FSC and FSC's Affiliates and their respective parents, Affiliates,
subsidiaries, officers, directors, employees, agents, assignees and successors
(collectively, the "FSC INDEMNIFIED PARTIES"), at all times from and against and
in respect of all damages, loss, liability, claims, expense (including costs of
investigation and reasonable attorneys' fees) and diminution of value ("LOSSES")
that any FSC Indemnified Party may suffer or incur either directly or in
connection with a third party claim, including a claim by ***, to the extent
arising out of or based upon (i) Par's ownership, use or sale of the Transferred
Assets and discharging of the liabilities assumed by Par under Section 2.3, (ii)
any material breach of any of the representations or warranties of Par set forth
in this Agreement, and (iii) any material breach of any of the covenants or
agreements of Par set forth in this Agreement.
8.2 FSC INDEMNIFICATION OF PAR. FSC agrees to indemnify and hold
harmless Par and Par's Affiliates and their respective parents, Affiliates,
subsidiaries, officers, directors, employees, agents, assignees and successors
(collectively, the "PAR INDEMNIFIED PARTIES"), at all times from and against and
in respect of all Losses that any Par Indemnified Party may suffer or incur
either directly or in connection with a third party claim, including a claim by
***, to the extent arising out of or based upon (i) a material breach of any of
the representations or warranties of FSC set forth in this Agreement, (ii) a
material breach of any of the covenants or agreements of FSC set forth in this
Agreement, (iii) FSC's ownership or operation of the Transferred Assets on or
9
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
prior to the Closing Date, (iv) FSC's ownership or operation of the Excluded
Assets, and (iv) any claim by *** for any actions taken by FSC relating the
formation, execution, performance or breach of any agreement between FSC and
***. Additionally, in the event Par has any claims relating to this Agreement
against ***, FSC shall fully cooperate with Par to address and resolve such
issues or claims with ***. If such claims constitute legal claims that FSC can
make against *** under the *** Agreements or otherwise, FSC shall assert such
claims against *** at Par's request, provided that Par shall pay all expenses
relating to such assertion of claims. FSC shall pay any recovery with respect to
such claims to Par or otherwise pass to Par any such remedy obtained. If FSC
elects to pursue other claims than those requested by Par, in the same
proceeding, Par and FSC shall share the costs of such proceeding in proportion
to the amount of their respective claims; provided, that each Party shall bear
all legal fees of any separate counsel engaged solely by it. In the event Par
takes an action to cure a breach by FSC of the *** Agreements, FSC shall fully
indemnify Par for the amount of any proper payment made by Par to cure such
breach.
8.3 NOTICE OF CLAIMS. The indemnified party shall promptly notify the
indemnifying party in writing of all matters which may give rise to the right to
indemnification hereunder; PROVIDED, HOWEVER, that failure to timely give the
notice provided in this SECTION 8.3 shall not be a defense to the liability of
the indemnifying party for such claim, but the indemnifying party may recover
any actual damages arising from the indemnified party's failure to give such
timely notice. The indemnified party shall not admit any liability with respect
to, or settle, compromise or discharge any such matter covered by this ARTICLE
VIII without the indemnifying party's prior written consent (which shall not be
unreasonably withheld). The indemnifying party shall have the right, with the
consent of the indemnified party (which shall not be unreasonably withheld), to
settle all indemnifiable matters related to claims by third parties which are
susceptible to being settled. In connection with any claim giving rise to
indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person other than the indemnified party, the indemnifying party
at its sole cost and expense may, upon written notice to the indemnified party
received by the indemnified party within ten (10) calendar days after the
indemnifying party's receipt of notice of such claim, assume the defense of any
such claim or legal proceeding. If the indemnifying party assumes the defense of
any such claim or legal proceeding, the indemnifying party shall select counsel
reasonably acceptable to the indemnified party to conduct the defense of such
claims or legal proceedings and, at the indemnifying party's sole cost and
expense (which costs and expenses shall not be applied against any indemnity
limitation herein), shall take all steps necessary in the defense or settlement
thereof. The indemnified party shall be entitled to participate in (but not
control) the defense of any such action, with its own counsel and at its own
expense, and shall be entitled to any and all information and documentation
relating thereto. If the indemnifying party does not assume (or continue to
diligently and competently prosecute) the defense of any such claim or
litigation resulting there from in accordance with the terms hereof, the
indemnified party may, at the indemnifying party's expense, defend against such
claim or litigation in such manner as it may deem appropriate, including, but
not limited to, settling such claim or litigation, after giving notice of the
same to the indemnifying party, on such reasonable terms as the indemnified
party may deem appropriate. The indemnified party will cooperate reasonably with
10
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
the indemnifying party in its efforts to conduct or resolve such matters,
including by making available to the indemnifying party relevant documents and
witnesses. The indemnified party and the indemnifying party shall keep each
other informed of all settlement negotiations with third parties and of the
progress of any litigation with third parties. The indemnified party and the
indemnifying party shall permit each other reasonable access to books and
records and shall otherwise cooperate with all reasonable requests of each other
in connection with any indemnifiable matter resulting from a claim by a third
Person.
ARTICLE IX
MISCELLANEOUS
9.1 NOTICES. Any notice or other communication to be given under this
Agreement by any Party to any other Party shall be in writing and shall be
either (a) personally delivered, (b) mailed by registered or certified mail,
postage prepaid with return receipt requested, (c) delivered by overnight
express delivery service or same-day local courier service, or (d) delivered by
telex or facsimile transmission, to the address of the applicable Party as set
forth below, or to such other address as may be designated by the Parties from
time to time in accordance with this section. Notices delivered personally, by
overnight express delivery service or by local courier service shall be deemed
given as of actual receipt. Mailed notices shall be deemed given three (3)
business days after mailing. Notices delivered by telex or facsimile
transmission shall be deemed given upon receipt by the sender of the answerback
(in the case of a telex) or transmission confirmation (in the case of a
facsimile transmission).
If to Par at: Par Pharmaceutical, Inc.
300 Tice Boulevard
Woodcliff Lake, New Jersey 07677
ATTENTION: General Counsel
Facsimile Number: (201) 802-4224
If to FSC at: FSC Laboratories, Inc.
6000 Fairview Road, Suite 1200
Charlotte, North Carolina 28210
ATTENTION: President
Facsimile Number: (704) 552-3805
or to such other address as each Party may designate for itself by like notice.
9.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the successors and assigns of the
Parties hereto; provided however, that neither Party may assign this Agreement
without the express written consent of the other Party. This Agreement may not
11
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
be assigned by either Party without the prior consent of the other Party;
provided, however, that either Party may assign this Agreement without such
consent to an Affiliate or any entity which acquires substantially all of its
assets or business and, notwithstanding such assignment, the assigning Party
shall remain liable under this Agreement for all of its obligations. Any
assignment in contravention of this provision shall be null and void.
9.3 Neither Party shall issue any press release or any other form of
public disclosure regarding the existence of this Agreement, the terms hereof or
the relationship of the Parties hereunder or use the name of the other Party
hereto in any press release or other public disclosure (collectively, "AGREEMENT
PUBLICITY") without the prior written consent of the other Party except as
required by a mandatory provision of applicable law or regulations (including,
without limitation, the rules and regulations of the Securities and Exchange
Commission and any applicable stock exchange) and solely to the extent necessary
to comply with such provision. Each party agrees to cooperate in good faith
regarding such disclosures by Par in order to address obligations to *** and Par
shall not issue any press release specifically disclosing the existence of any
of the *** Agreements, the terms thereof or the relationship of the parties
thereunder or use the name of *** in any press release or other public
disclosure without the prior written consent of FSC except as required by a
mandatory provision of applicable Law and solely to the extent necessary to
comply with such provision of Law. FSC understands and agrees that Par shall
make a press release regarding this transaction and will be obligated to
disclose this transaction to conform to its disclosure obligations as a public
company.
9.4 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
be executed on signature pages exchanged by facsimile, in which event each party
shall promptly deliver to the others such number of original executed copies as
the others may reasonably request.
9.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of New York, without regard to
the conflicts of law provisions thereof.
9.6 AMENDMENT AND WAIVER. This Agreement may be amended only by a
writing that specifically states that such is an amendment, specifically states
its purpose and that is signed by both Parties. No course of dealing between the
Parties or failure by either Party to exercise any right or remedy hereunder
shall constitute an amendment to this Agreement or a waiver of any other right
or remedy or the later exercise of any right or remedy.
9.7 SEVERABILITY. If a court or other tribunal of competent jurisdiction
should hold any term or provision of this Agreement to be excessive, or invalid,
void or unenforceable, the offending term or provision shall be deleted or
revised to the extent necessary to be enforceable, and, if possible, replaced by
a term or provision which, so far as practicable achieves the legitimate aims of
the Parties.
12
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
9.8 RELATIONSHIP BETWEEN THE PARTIES. FSC and Par are independent
contractors under this Agreement. Nothing herein contained shall be deemed to
create an employment, agency, joint venture or partnership relationship between
the Parties hereto or any of their agents or employees, or any other legal
arrangement that would impose liability upon one Party for the act or failure to
act of the other Party. No Party shall have on accord of this Agreement any
express or implied power to enter into any contracts or commitments or to incur
any liabilities in the name of, or on behalf of, the other Party, or to bind the
other Party in any respect whatsoever.
9.9 ENTIRE AGREEMENT; AMENDMENT. This Agreement, and all the covenants,
promises, agreements, warranties, representations, conditions and understandings
contained herein and therein set forth the complete, final and exclusive
agreement between the Parties and supersedes and terminates all prior and
contemporaneous agreements and understandings between the Parties, whether oral
or in writing except as set forth herein. There are no covenants, promises,
agreements, warranties, representations, conditions or understandings, either
oral or written, between the Parties other than as are set forth in the other
agreements between the Parties entered into contemporaneously with this
Agreement. No subsequent alteration, amendment, change, waiver or addition to
this Agreement shall be binding upon the Parties unless reduced to writing and
signed by an authorized officer of each Party. No understanding, agreement,
representation or promise, not explicitly set forth herein, has been relied on
by any Party in deciding to execute this Agreement.
13
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
The Parties are entering into this Asset Purchase Agreement as of the date
stated in the introductory clause.
FSC LABORATORIES, INC. PAR PHARMACEUTICAL, INC.
By: /s/ Peter W. Steelman By: /s/ Scott L. Tarriff
----------------------------- -----------------------------
Name: Peter W. Steelman Name: Scott L. Tarriff
----------------------------- -----------------------------
Title: President Title: President & CEO
----------------------------- -----------------------------
14
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
AND EXCHANGE ACT OF 1934, AS AMENDED.
Schedule 1.1(g) -- Registration
Isoptin SR, NDA (19-152)
15