EXHIBIT 10.1
SHARE TRANSFER AGREEMENT
This SHARE TRANSFER AGREEMENT (this "AGREEMENT"), dated January 20,
2006 and effective December 31, 2005 (the "EFFECTIVE DATE"), by and between Par
Pharmaceutical Companies, Inc. (formerly known as Pharmaceutical Resources,
Inc.), a Delaware corporation (the "SELLER"), and Dr. Arie Gutman (the
"PURCHASER").
WHEREAS, the Seller owns all of the issued and outstanding shares of
capital stock (the "SHARES") of FineTech Laboratories Ltd., a company organized
under the laws of the State of Israel ("FINETECH"); and
WHEREAS, the Seller determined prior to the Effective Date that
FineTech is not profitable and, therefore, the Seller desires to abandon its
interest therein and transfer the Shares to the Purchaser, and the Purchaser
desires to acquire from the Seller, subject to the terms and conditions set
forth herein, the Shares for the consideration set forth herein; and
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the Seller and the Purchaser hereby agree as follows:
1. TRANSFER AND ACQUISITION; CLOSING.
1.1 TRANSFER AND ACQUISITION OF THE SHARES. Subject to the terms set forth
herein, the Purchaser hereby agrees to acquire from the Seller, and the Seller
hereby agrees to transfer to the Purchaser, the Shares "as is" and without
representation or warranty of any kind, express or implied, except as
specifically set forth herein. As soon as practicable after the Closing (as
defined below), the Seller shall deliver to the Purchaser stock certificates
evidencing the Shares.
1.2 THE CLOSING. The closing of the transfer and acquisition of the Shares
hereunder (the "CLOSING") shall take place effective as of the Effective Date.
The Closing shall occur remotely via the exchange of documents and signatures.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Purchaser that the Seller owns, beneficially and
of record, all of the Shares free and clear of any liens or other encumbrances.
The Seller is hereby transferring to the Purchaser all of the Seller's title and
ownership in and to the Shares "as is" without representation or warranty of any
kind (including, with respect to FineTech's business, condition, prospects or
otherwise and the Purchaser hereby acknowledges that no such representations or
warranties have been made), express or implied, except as specifically set forth
herein.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Seller that the Purchaser (a) is acquiring
the Shares solely for its own account for the purpose of investment and not as a
nominee or agent for any other person and not with a view to, or for offer or
sale in connection with, any distribution thereof, (b) is an "accredited
investor" within the meaning of Rule 501(a)(4), (4) or (6) of Regulation D under
the Securities Act of 1933, as amended, (c) is not relying on the Seller,
FineTech or any of their respective employees, representatives or agents with
respect to the legal, tax, economic and related considerations as to an
investment in the Shares, (d) has engaged legal counsel in connection herewith
and such counsel is not Kirkpatrick & Lockhart Nicholson Graham LLP, (e) has
relied solely on its independent investigation and the advice of its legal
advisors and (f) has such knowledge and experience in financial and business
matters that the Purchaser is capable of evaluating the merits and risks of an
investment in the Shares and is capable of protecting the Purchaser's own
interest in connection with the transfer and acquisition of the Shares.
4. CERTAIN TAX MATTERS. The Seller shall prepare and file, or cause
to be prepared and filed, all tax returns of FineTech for all tax periods ending
on or prior to the Effective Date, and pay or cause to be paid, when due, all
taxes owing by FineTech for all periods covered by such tax returns (except to
the extent such taxes were reserved for on FineTech's balance sheet or accrued
by FineTech in the ordinary course of business). Notwithstanding anything to the
contrary contained in this Agreement or provided by applicable law, all sales,
real property, stock or other transfer, or similar taxes arising directly from
the consummation of the transactions contemplated hereby shall be paid by the
Seller. The Seller shall prepare and file all tax returns in connection with all
such sales and transfer taxes. The Purchaser shall have provided the Seller, in
properly completed form, any exemption certificates with respect to such sales
and transfer taxes that may be executed by the Purchaser under applicable law.
From and after the Effective Date, the Seller and the Purchaser shall cooperate
with each other and provide each other with such assistance (including
testimony) as may reasonably be requested by either of them in connection with
the preparation of any tax return or any audit or other examination by any
taxing governmental entity, any judicial or administrative proceedings relating
to any liability for taxes under this Agreement, or any claims for refunds. The
party requesting assistance hereunder shall promptly reimburse the party
providing assistance for all reasonable third-party out-of-pocket expenses
incurred in providing such assistance.
5. ACCELERATION OF CERTAIN STOCK OPTIONS. The Seller's board of
director's Compensation and Stock Option Committee shall accelerate the vesting
of all of the unvested stock options set forth on EXHIBIT A hereto, which shall
be fully vested on the date hereof and exercisable, pursuant to the terms of the
award agreement evidencing the Seller's grant thereof, by the respective
optionees set forth opposite such options on EXHIBIT A within thirty (30) days
after the date hereof.
6. MISCELLANEOUS.
6.1 EXPENSES; OPERATING COSTS AND EXPENSES. The Seller and the Purchaser
shall each bear their own expenses with respect to this Agreement. The Purchaser
shall be responsible for all costs and expenses related to the operation of
FineTech after the Effective Date.
6.2 SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
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6.3 BINDING EFFECT; GOVERNING LAW AND JURISDICTION. This Agreement shall
be binding upon the parties and their respective successors and assigns, and all
matters arising in connection with this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
The parties hereby irrevocably consent to the nonexclusive jurisdiction of the
courts of the State of New York and of any federal court located in such State
in connection with any action or proceeding arising out of or relating to this
Agreement.
6.4 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally,
sent by facsimile transmission or reputable overnight courier, or mailed
(certified or registered mail, return receipt requested):
If to the Seller, to:
Par Pharmaceutical Companies, Inc.
300 Tice Blvd.
Woodcliff Lake, NJ 07677
Attention: General Counsel
Telecopier: (201) 802-4215
With a copy (which copy shall not constitute notice) to:
Kirkpatrick & Lockhart Nicholson Graham LLP
599 Lexington Avenue
New York, New York 10022
Attn: R. King Milling Jr., Esq.
Telecopier: (212) 536-3901
If to the Purchaser, to:
Dr. Arie Gutman
FineTech Laboratories Ltd.
33 Hanarkissim Street
Science Park Nesharim
Nesher 36601 Israel
Telecopier: 011 (972) 524 733 833
or to such other person or address as any party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date on which so
hand-delivered, telecommunicated or delivered by overnight courier or on the
fifth (5th) business day following the date on which so mailed, except for a
notice of change of address, which shall be effective only upon receipt thereof.
6.5 COMPLETE AGREEMENT. This Agreement (including the exhibits hereto)
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
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6.6 AMENDMENTS AND WAIVERS. This Agreement may be amended or terminated
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Seller and the Purchaser. No waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
6.7 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which shall constitute one and the same document. This Agreement may be
executed by facsimile signatures.
6.8 ASSIGNMENT; CHANGE OF CONTROL. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned or delegated by
either the Seller or the Purchaser by operation of law or otherwise (including,
without limitation, by way of Purchaser's estate), without the prior written
consent of the other party hereto and any such purported assignment or
delegation shall be null and void AB INITIO; PROVIDED, HOWEVER, no consent shall
be required for the Seller to assign this Agreement to any of its affiliates. As
a condition to any permitted assignment, the assignee shall agree to be bound by
the terms and provisions of this Agreement.
6.9 SECTION HEADINGS AND REFERENCES. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties. Any reference in this agreement to a
particular section or subsection shall refer to a section or subsection of this
Agreement, unless specified otherwise.
6.10 FURTHER ASSURANCES. From time to time after the Closing, at the
request of one of the parties hereto and at the expense of the party so
requesting, the Seller and the Purchaser shall execute and deliver to such
requesting party such documents and take such other action as such requesting
party may reasonably request in order to consummate more effectively the
transactions contemplated hereby, including, without limitation, the filing of
applicable taxes with the appropriate governmental agencies.
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IN WITNESS WHEREOF, the parties hereto have executed this Share Transfer
Agreement as of the date first above written.
PAR PHARMACEUTICAL COMPANIES, INC.
By:______________________________
Name:
Title:
_________________________________
DR. ARIE GUTMAN