EXHIBIT 10.12
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CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT.
SUPPLY AGREEMENT
is made and entered into as of this 18th day of July 2000
between
TEVA PHARMACEUTICAL INDUSTRIES LTD.
a limited liability company incorporated under the laws of Israel, of 5,
Basel Street, 49131 Petach Tiqva, Israel (hereinafter referred to as "TEVA")
and
LABORATORIOS BELMAC,S.A.
a limited liability company incorporated under the laws of Spain, of
Montearagon, 9 - 1.(a)pta, 28033 Madrid, Spain
and
LABORATORIOS DAVUR S.L.
a limited liability company incorporated under the laws of Spain, of Lopez de
Hoyos 327, 28043, Madrid, Spain
("MARKETING AUTHORISATION HOLDERS" defined below)
WHEREAS TEVA and LABORATORIOS BELMAC, S.A. TOGETHER WITH LABORATORIOS DAVUR
S.L. have entered into the Licence Agreement this day for their
appointment as Marketing Authorisation Holder of the Products (as
defined hereunder) and the non-exclusive licence of certain rights and
obligations in the registration files of the Product.
WHEREAS MARKETING AUTHORISATION HOLDERS desire to engage the facilities and
services of TEVA together with its Affiliates to manufacture Product
for MARKETING AUTHORISATION HOLDERS and TEVA has appropriate
facilities to manufacture Product and TEVA together with its
Affiliates is willing to undertake manufacture of Products for
MARKETING AUTHORISATION HOLDERS in accordance with the terms and
conditions set forth herein.
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
1. INTERPRETATION AND DEFINITION
1.1 The preamble to this Agreement forms an integral part hereof. Clause
headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the interpretation of this
Agreement. All agreed upon and signed annexes to this Agreement,
whether attached at the time of signature hereof or at any time
thereafter, shall be construed as an integral part of this Agreement.
In this Agreement, the following expressions shall bear the meanings
assigned to them below and cognate expressions shall bear
corresponding meanings:
1.1.1 "Affiliates" shall mean with respect to either party, any
person, corporation, company, partnership, joint venture or
other entity controlling, controlled by or under common
control with such party. For such purpose the term "control"
means the holding of 50% or more of the common voting stock
or ordinary shares in, or the right to appoint 50% or more
of the directors of, or the right to share in 50% or more of
the profits of, the said corporation, company, partnership,
joint venture or entity.
1.1.2 "Commercialisation" shall mean the activities carried out in
the Territory pertaining to the importation into,
distribution, marketing and sale of Products.
1.1.3 "Dossier" shall mean the registration file of the Products
(as further defined in the Licence Agreement).
1.1.4 "Launch Date" shall mean the date of Commercialisation of
the Product in the Territory.
1.1.5 "Manufacture" shall mean except as may otherwise be agreed
in writing by the Parties hereto, all technical operations,
including the purchase of raw materials, preparation of the
bulk packages of the Products, final packaging for shipment
and labelling if required, quality control testing,
necessary in order to obtain the Products.
1.1.6 "Manufacturing Cost" shall mean all direct costs of
manufacture, excluding general and administrative costs and
research and development costs.
1.1.7 "Manufacturing Standards" shall mean the specifications of
the Products in compliance with the Dossier, Marketing
Authorisation, cGMP regulations, separate Technical
Agreement and such other specifications as may be agreed to
in writing between the Parties, according to which TEVA or
its Affiliates
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shall manufacture and supply each of the Products under
this Agreement.
1.1.8 "Marketing Authorisation" shall mean any approvals, licences
and permits, required by the Regulatory Authorities in Spain
for the importation, packaging, distribution, marketing and
sale of Products in the Territory.
1.1.9 "MARKETING AUTHORISATION HOLDERS" shall mean Laboratorios
Belmac, S.A. which is owned 100% by Bentley Pharmaceuticals,
Inc. and/or Laboratorios Davur S.L. which is owned 100% by
Laboratorios Belmac, S.A., except in both cases shares held
by directors of each company
1.1.10 "Products" shall mean finished pharmaceutical products ready
for use in humans listed in Appendix A as amended from time
to time hereafter.
1.1.11 "Regulatory Authorities" shall mean any government body or
public organisation responsible for all regulatory matters,
including those incidental thereto, concerning the
importation, distribution, marketing and sale of finished
pharmaceutical products in the Territory.
1.1.12 "Technical Agreement" shall have the meaning set forth in
Clause 3.1 of this Agreement.
1.1.13 "Teva Supply Contact" shall mean Teva or any party that is
so designated by Teva from time to time, responsible for the
co-ordination of the undertakings of Teva Manufacturing Site
(as defined in Clause 2.3).
1.1.14 "Territory" shall mean Spain, including its territories and
possessions and other regions as agreed to in writing
between the parties.
2. SUPPLY AND PURCHASE OF REQUIREMENTS
2.1 TEVA and its Affiliates undertakes to Manufacture and supply to
MARKETING AUTHORISATION HOLDERS all of their requirements of the
Products for the importation, distribution, marketing and sale in the
Territory in accordance with the terms and conditions of this
Agreement.
2.2 The supply by TEVA and its Affiliates of each Product to MARKETING
AUTHORISATION HOLDERS shall be with due regard to MARKETING
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AUTHORISATION HOLDERS' Preferred Customer Pricing Status. "Preferred
Customer Pricing Status" shall mean the Manufacturing Cost for each
Product at TEVA Manufacturing Site , plus the agreed margin of *.
MARKETING AUTHORISATION HOLDERS' obligation to purchase all of their
requirements of the Products shall be non-exclusive; MARKETING
AUTHORISATION HOLDERS shall be permitted to purchase each Product from
other sources in order to meet their requirements subject to the
conditions precedent that MARKETING AUTHORISATION HOLDERS can
establish by contemporaneous written proof that TEVA's or its
Affiliates' price for such Product exceeds the current price from
other qualified sources and TEVA has not exercised its right to match
such lower price upon written notice within seven (7) days from the
date of MARKETING AUTHORISATION HOLDERS' notification to Teva, which
notice need not be given more frequently than once every two (2)
years.
2.3 Each Product shall be supplied by TEVA or its Affiliates. TEVA Supply
Contact shall provide MARKETING AUTHORISATION HOLDERS of the contact
details of the manufacturing site responsible for the supply of such
Product, which site shall be owned by Teva ("Teva Manufacturing
Site"). TEVA Supply Contact shall advise MARKETING AUTHORISATION
HOLDERS of any changes to the contact details of TEVA Manufacturing
Site and any other information that may be relevant for the
undertakings contemplated hereunder.
3. MANUFACTURE AND SUPPLY OF PRODUCTS
3.1 All Products Manufactured by TEVA Manufacturing Site shall be supplied
in accordance with the Manufacturing Standards. TEVA Manufacturing
Site will supply with each batch a Certificate of Analysis and other
documentation as required by the Spanish Regulatory Authorities. The
QA Departments of both Parties shall enter into a Technical Agreement
covering aspects including without limitation quality control, quality
assurance, documentation and batch release to be attached to this
Agreement as an Appendix. Notwithstanding the foregoing, TEVA shall
conduct pre-licensing stability studies as detailed in the Dossiers
and provide updates to MARKETING AUTHORISATION HOLDERS on their
request. TEVA Manufacturing Site shall also conduct post-licensing
stability studies on the first three batches of each Product;
MARKETING AUTHORISATION HOLDERS shall provide TEVA Manufacturing Site
with free samples of the respective Product, the quantity thereof to
be agreed upon between the Parties. TEVA Manufacturing Site shall
provide the data of such studies to MARKETING AUTHORISATION HOLDERS on
their request.
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
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3.2 All Products formulated as tablets or capsules shall be Manufactured
and supplied by TEVA Manufacturing Site in bulk packages, unless
agreed otherwise between the Parties in writing. All other Product
formulations shall be Manufactured and supplied in final finished
dosage form, unless agreed otherwise between the Parties in writing.
Upon TEVA'S request MARKETING AUTHORISATION HOLDERS shall include on
packs, patient information leaflets and package inserts the reference
that the respective Product is licensed from Teva(R).
3.3 MARKETING AUTHORISATION HOLDERS shall be entitled on any business day,
upon reasonable prior written notice to TEVA Manufacturing Site, to
inspect TEVA Manufacturing Site's facilities, in order to verify
compliance by TEVA Manufacturing Site with the applicable
Manufacturing Standards. MARKETING AUTHORISATION HOLDERS shall use
their best efforts to limit audits under this Clause to only one visit
in aggregate per year, unless required by special circumstances by the
requirements of the Spanish Regulatory Authorities.
In the event of dispute between the Parties regarding the conclusions
of such audit, the audit report shall be referred for examination to
an independent expert mutually selected by the Parties in order to
determine its compliance to the applicable Manufacturing Standards.
The findings of such expert shall be final and binding on the Parties.
All costs charged by the expert in connection with its examination
shall be borne by the Party that was found to be incorrect.
4. FORECASTS, ORDERS AND DELIVERY OF PRODUCTS
4.1 No later than one hundred and eighty (180) days before the Launch Date
of each Product and each month thereafter commencing at the Launch
Date MARKETING AUTHORISATION HOLDERS shall provide TEVA Manufacturing
Site with a twelve (12) months rolling forecast. The forecast for the
first three (3) months shall constitute a Firm Order and shall set
forth (i) the quantities of each Product to be purchased, (ii)
reasonable delivery dates allowing a lead time of ninety (90) days
from the date of Firm Order and (iii) other reasonable instructions
for shipping and packaging. Such Firm Order shall be binding on both
Parties, when confirmed in writing by TEVA Manufacturing Site within
ten (10) working days. The Forecast for the remaining nine (9) months
shall be for production planning purposes only and shall not
constitute a Firm Order.
4.2 Marketing Authorisation Holders shall purchase from Teva Manufacturing
Site not less than the annual minimum quantities of each Product based
on batch size set out in Appendix D. If Marketing Authorisation
Holders fail to meet these minimum quantities in any year, Teva shall
have the
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right to terminate this Agreement on a Product-by-Product basis.
MARKETING AUTHORISATION HOLDERS shall maintain at least three (3)
month inventory of each Product for Commercialisation in the
Territory.
4.3 TEVA Manufacturing Site shall deliver all Products supplied hereunder
Ex Works [place of manufacture site as advised by TEVA Supply contact]
(Incoterms 2000).
4.4 MARKETING AUTHORISATION HOLDERS shall have a maximum of forty-five
(45) days from the date of its receipt of any delivery of Products by
TEVA Manufacturing Site to inspect the quantity and quality delivered
and to accept or reject such delivery, in whole or in part. The
methods of analysis agreed upon by the Parties shall be used to
determine whether or not the Products meet the relevant
specifications. In the event MARKETING AUTHORISATION HOLDERS do not
notify TEVA Manufacturing Site in writing of either acceptance, defect
or a shortage within such forty-five (45) day period, all of such
delivery shall be deemed to be accepted. Notwithstanding the
foregoing, in the event of a latent defect to any batch of the
Products, which could not have been discovered by MARKETING
AUTHORISATION HOLDERS with reasonable diligence within such forty-five
(45) day period, MARKETING AUTHORISATION HOLDERS shall have fifteen
(15) days from the date that such latent defect was in fact discovered
or should have been discovered to notify TEVA Manufacturing Site in
writing, failing which such batch shall be deemed accepted. TEVA
Manufacturing Site shall upon verification of such defect or shortage,
as the case may be, dispatch non-defective quantities of the relevant
Product in a quantity sufficient to cure the shortage or defect free
of charge.
4.5 In the event of dispute between the Parties regarding the quality of
any Products supplied hereunder, the batch in question or
representative samples thereof, shall be referred for examination to
an independent laboratory mutually selected by the Parties and
authorised by the Regulatory Authorities in order to determine its
compliance to the applicable Manufacturing Standards for such Product.
The findings of such laboratory shall be final and binding on the
Parties. All costs charged by the laboratory in connection with its
analysis shall be borne by the Party that was found to be incorrect.
5. PRICE AND TERMS OF PAYMENT
5.1 The price to be paid by MARKETING AUTHORISATION HOLDERS to TEVA
Manufacturing Site for all quantities of the Products supplied by TEVA
Manufacturing Site shall be at Preferred Customer Pricing Status. No
later than one hundred and eighty (180) days before the Launch Date of
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each Product and thereafter once every year before or on the first
business day of the calendar year TEVA Manufacturing Site shall
provide MARKETING AUTHORISATION HOLDERS with the price of each
Product, which shall be applicable on supplies of Products during the
relevant calendar year or portion thereof. Estimates of Manufacture
costs of the Products are set forth in Appendix B of this Agreement
for reference and information purposes only and shall be construed not
to be binding on either Party. The Preferred Customer Status pricing
shall be in effect no less than for a period of three (3) years
following the Launch Date of the particular Product, or, if there is a
Material Event (as defined below), three years after such Material
Event, whichever is later.
5.2 Notwithstanding Clause 5.1 above, Parties acknowledge and agree that
outside factors may affect the price of one or more Products supplied
by TEVA Manufacturing Site, including without limitation changes in
foreign currency exchange rates, inflation, market conditions and
competition, cost of raw materials, labour and public utilities. Upon
the occurrence of such unforeseen events or circumstances Parties
shall meet and negotiate in good faith the prices and terms of this
Agreement in order to re-establish the basic economic balance thereof
with respect to the Product so affected. In the event Parties cannot
reach an agreement, either Party shall have the right to terminate
this Agreement for the relevant Product.
5.3 Payment for all Products shall be effected by MARKETING AUTHORISATION
HOLDERS to TEVA Manufacturing Site within ninety (90) days of the date
of invoice (such date of invoice not to be earlier than the date of
delivery of the relevant Product) Payments due hereunder shall be made
by bank transfer in Euros as directed by TEVA Manufacturing Site.
5.4 Notwithstanding delivery of the Products to MARKETING AUTHORISATION
HOLDERS, or the mode thereof, title in the Products shall pass to
MARKETING AUTHORISATION HOLDERS upon receipt by TEVA Manufacturing
Site of full payment therefor. Risk of loss and damage in and to the
Product shall pass to MARKETING AUTHORISATION HOLDERS upon delivery
thereof at the agreed delivery location.
6. ADVERSE REACTIONS
6.1 Both Parties shall co-operate with one another and share information
concerning the safety and efficacy of the Products and other
information that may affect the use, sale and marketing of the
Products.
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6.2 Both Parties shall promptly notify each other in writing of any
information concerning any serious or unexpected side-effect, injury,
toxicity, or sensitivity reaction, any unexpected incidents or any
adverse drug experience reports and the severity thereof associated
with the Products, the use, sale and marketing thereof. Both Parties
shall notify each other upon request by the other of other information
concerning not serious adverse reactions attributable to the use of
the Products.
6.3 Nothing in this Article shall be construed as overriding the duty and
responsibilities of both Parties to report adverse reactions
concerning the Product to any Regulatory Authorities in the Territory.
6.4 Both Parties shall advise each other of the names and contact details
of persons responsible for pharmacovigilance / reporting of adverse
reactions / medical information matters in its organisation and shall
keep these details up to date.
7. RECALL
7.1 Whenever a recall in the Territory of a Product manufactured by Teva
Manufacturing Site is being contemplated for any reason, both Parties
shall promptly consult with each other with the purpose of deciding
the appropriate action to be taken with respect thereto. For the sake
of clarity, the responsibility of any recall shall rest with MARKETING
AUTHORISATION HOLDERS as the Marketing Authorisation holder, but it is
agreed that MARKETING AUTHORISATION HOLDERS shall fully consult with
TEVA if a recall is contemplated. Nothing in this Article shall be
construed as overriding the Parties' duties and obligations towards
any Regulatory Authorities in the Territory.
7.2 In the event the recall is due to any act or omission of either Party,
the Party to which such recall is attributable shall bear the costs
and expenses related directly to such recall, or in the case of action
from the Regulatory Authorities regarding a recall which is not
attributable to any act or omission of either Party, the direct costs
and expenses shall be shared equally by TEVA (50%) and the MARKETING
AUTHORISATION HOLDERS (50%).
8. REPRESENTATIONS AND WARRANTIES
8.1 TEVA represents and warrants to the best of its knowledge after
reasonable enquiry that the Manufacturing, use and sale of the
Products,
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in accordance with the corresponding Dossiers, shall contravene no
patents or rights owned or held by third parties in the Territory, it
being understood that the sale of certain Products in the Territory;
provided however it being understood that is anticipated to be cleared
from patent protection on the dates mentioned in Appendix C. For the
avoidance of any doubt, the anticipated dates set forth in Appendix C
are based on the information available to TEVA at the date of this
Agreement. TEVA shall inform MARKETING AUTHORISATION HOLDERS in
writing of any information becoming available to TEVA in the future
that would alter such dates.
8.2 TEVA represents and warrants that (i) the Product supplied hereunder
will be of merchantable quality and fit for the purposes set forth in
the Product package insert, (ii) the Product supplied hereunder shall
be manufactured, packaged (when applicable pursuant to Clause 3.2) and
stored in accordance with the Manufacturing Standards (iii) the
Product supplied hereunder shall be free and clear of all security
interests, liens, or other encumbrances of any kind or character. For
the avoidance of any doubt, the warranties set out in this Clause are
the only warranties given by TEVA and are made in lieu of all other
warranties, express or implied. Any implied warranties of fitness for
a particular purpose or merchantibility applicable to the Product are
hereby excluded.
8.3 MARKETING AUTHORISATION HOLDERS represent and warrant that all
Products purchased hereunder shall be properly packaged (when
applicable pursuant to Clause 3.2), transported and stored in
accordance with the relevant Dossier and Marketing Authorisation.
8.4 Each Party represents and warrants to the other that it holds and will
hold all licences and permits required from all relevant authorities
for the implementation of this Agreement and that it will maintain
such licences and permits for the term of this Agreement, and also
after termination of this Agreement (for any reason) during such
continuing period that any Products manufactured and supplied
hereunder by TEVA are held in inventory by MARKETING AUTHORISATION
HOLDERS.
9. MATERIAL EVENT
9.1 The following occurrences shall be considered a Material Event for
purposes of this Agreement and the Licence Agreement:
9.1.1 for each respective Product, where MARKETING AUTHORISATION
HOLDERS fail to place a Firm Order for such Product with
TEVA Manufacturing Site within 24 months of the date of the
respective Marketing Authorisation, or such later date due
to existing patent
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restrictions as referred to in Clause 6.1 of the Licence
Agreement between the Parties of even date; or
9.1.2 for all respective Products, where MARKETING AUTHORISATION
HOLDERS shall come under the direct or indirect or de facto
direction or control of any party, other than the direction
and control which such parties are under on the date of this
Agreement; or
9.1.3 for all Products, upon TEVA's initiation of commercial
operations in Spain concerning all or substantially all of
the Products through TEVA's acquisition of or joint venture
engagement or similar transactions with a party in Spain.
9.2 For the avoidance of any doubt, the occurrence of any Material Event
shall not itself terminate this Agreement, save the provisions
pursuant to Article 12 below.
10. CONSEQUENCES MATERIAL EVENT
Upon the occurrence of any Material Event pursuant to Article 9 above,
TEVA shall be obligated to supply MARKETING AUTHORISATION HOLDERS with
the Products with due regard to MARKETING AUTHORISATION HOLDERS'
Preferred Customer Status, as set forth in Section 5,1 above.
Following the end of all periods during which the Marketing
Authorisation Holders have Preferred Customer Pricing Status, the
parties shall renegotiate in good faith the price of each relevant
Product commensurate with the prevailing market conditions in the
Territory representing an equitable reward to TEVA for the supply of
Products to MARKETING AUTHORISATION HOLDERS as Marketing Authorisation
holder. In the event Parties cannot reach an agreement, either Party
shall have the right to terminate this Agreement for the relevant
Product.
11. CONFIDENTIALITY
11.1 The term "Confidential Information" shall hereafter be defined as any
secret and/or proprietary information, including without limitation
chemical processes, pharmaceutical formulations, business information
and data, business strategies, product development information,
financial information and data, market studies, and possible or
intended submissions to the relevant Regulatory Authorities,
regardless whether such information is verbal, written, graphic,
photographic, recorded, prototype, sample or in any other form.
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11.2 Each Party shall treat and maintain in strict confidence and secrecy
and shall not use, for a period of ten (10) years from the date of
termination of this Agreement, the Confidential Information disclosed
by the other Party (including all information disclosed prior to the
date hereof). Neither Party shall use any portion of the Confidential
Information disclosed to it by the other Party or disclose such
information to any person or entity whatsoever, except as specifically
provided herein. The Parties may disclose the Confidential Information
of the other Party to their respective consultants, Affiliates,
directors, officers and employees, but only to the extent for which
such disclosure is necessary in furtherance of this Agreement,
provided such Party shall procure from such persons commitments to
treat and maintain the Confidential Information in strict confidence
and secrecy and to not use the information for any purpose whatsoever
except in the performance of their duties in furtherance of this
Agreement.
11.3 Confidential Information shall not include information that can
clearly be demonstrated to have been:
11.3.1 Generally known to the public through no fault of the Party
to whom the Confidential Information was disclosed;
11.3.2 Known to and in the lawful possession of a Party prior to
disclosure thereto by the other Party, as evidenced by
written evidence; or
11.3.3 Obtained from a third party lawfully in possession and with
no limitation regarding disclosure thereof, and having the
right to disclose the same; or
11.3.4 Required to be disclosed by operation of law, provided that
prior to any such disclosure the Party required to make such
disclosure shall notify the other Party in order to enable
the other Party to seek an appropriate protective order and
provided that any such disclosure shall only be to the
extent required to comply with the applicable law.
11.4 In the event that either Party at any time requests return of the
Confidential Information that it provided to the other Party, the
other Party shall promptly surrender to the requesting Party all
documents, records, notes, copies, computer files and other material
containing the applicable Confidential Information and shall not
retain any copies thereof.
12. TERM AND TERMINATION
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12.1 This Agreement and the Licence Agreement that is entered into on the
same date shall become effective as from the date of signature and
shall for each Product be concluded an initial term of 5 years
starting from its Launch Date and shall thereafter be renewed
automatically on an annual and Product-by-Product basis unless either
party provides the other with not less than 6 months' prior written
notice of its intention not to renew.
12.2 Notwithstanding Clause 12.1 above, this Agreement may be terminated
earlier in the way and manner described below:
12.2.1 In the event that a Party to this Agreement should be
dissolved, becomes insolvent, makes a voluntary or
involuntary assignment of assets for the benefit of
creditors, be assigned in bankruptcy court, or otherwise be
faced with circumstances reasonably warranting the
conclusion that, that Party will not be able within the
foreseeable future, to adequately comply with its
obligations under this Agreement, then the other Party to
this Agreement may terminate the Agreement immediately, by
giving notice of its intention to terminate in writing, and
without the Party thereby being terminated having any
entitlement to compensation under whatever title;
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12.2.2 Either Party shall have the right to terminate this
Agreement upon three (3) months written notice to the other
Party in the event of any (direct or indirect) voluntary,
involuntary or compulsory change in the ownership of the
other Party, without any entitlement to compensation under
whatever title. This right of termination is in addition to
and shall not limit TEVA's right to terminate under Article
10.
12.3 Notwithstanding Clause 12.1 above, this Agreement may be terminated
earlier and in part on a Product-by-Product basis in the way and
manner described below:
12.3.1 If one of the Parties to this Agreement commits a breach of
any provision of this Agreement pertaining to a certain
Product and fails to remedy such breach within forty-five
(45) days after written notification of the breach by the
Party not in default, then, the Party not in default shall
have the right to terminate this Agreement in regard of that
relevant Product. If it is apparent that such breach is not
capable of remedy, the Party not in default shall have the
right to terminate this Agreement in regard of that relevant
Product immediately on the date of its written notification
of the breach;
12.3.2 In the event of termination of this Agreement upon three (3)
months written notification by either Party pursuant to
Clause 5.2 and Article 10 and upon three (3) months written
notification by TEVA pursuant to Clause 4.2 of this
Agreement.
13. RIGHTS AND OBLIGATIONS UPON TERMINATION
13.1 Termination of this Agreement for whatever reason (by expiration of
term or otherwise) shall not affect the liabilities of the Parties
hereunder in respect of matters outstanding at the time of such
termination.
13.2 In the event of termination of this Agreement or on a
Product-by-Product basis in accordance with Sections 12.2 or 12.3
above:
13.2.1 TEVA shall have the option, exercisable by written notice
within thirty (30) days of termination, of repurchasing all
stocks of the Products, held by MARKETING AUTHORISATION
HOLDERS, in good and marketable condition at the price paid
to TEVA Manufacturing Site to MARKETING AUTHORISATION
HOLDERS. If the said option is not exercised, MARKETING
AUTHORISATION HOLDERS shall be entitled to continue to
market the Products in the Territory;
13.2.2 Neither Party shall be entitled to any compensation for loss
of profit or loss of goodwill directly or indirectly
attributable to such termination or for any other reason;
13.2.3 Each Party shall return to the other all Confidential
Information supplied by one Party to the other in accordance
with Clause 11.4 above.
13.3 The provisions of Articles 1, 7, 8, 11, 13, 14 and 21 shall survive
termination of this Agreement.
14. CROSS-INDEMINIFACTION
14.1 TEVA agrees to defend, indemnify and hold harmless MARKETING
AUTHORISATION HOLDERS and its Affiliates, its respective officers,
agents, and employees from and against any and all claims, losses,
suits, liabilities, damages and expenses (including, but not limited
to, reasonable attorney's fees) arising out of injuries to persons
and/or damage to property due to (i) a breach by TEVA of any of its
representations and warranties under Article 8 of this Agreement
and/or (ii) a material breach by TEVA of any of its obligations under
this
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Agreement and/or (iii) any damages resulting from the use of the
Products Manufactured by Teva Manufacturing Site which damages are
attributable to acts or omissions of Teva Manufacturing Site in the
Manufacture of such Products and/or (iv) the willful misconduct or
negligence of TEVA in its performance in accordance with this
Agreement.
14.2 MARKETING AUTHORISATION HOLDERS agree to defend, indemnify and hold
harmless TEVA and its Affiliates, its respective officers, agents, and
employees from and against any and all claims, losses, suits,
liabilities, damages and expenses (including, but not limited to,
reasonable attorney's fees) arising out of injuries to persons and/or
damage to property due to (i) a breach by MARKETING AUTHORISATION
HOLDERS of any of its representations and warranties under Article 8
of this Agreement and/or (ii) a material breach by MARKETING
AUTHORISATION HOLDERS of any of its obligations under this Agreement
and/ or (iii) any damages attributable to any acts or omissions in the
Commercialisation of the Products and/or (iv) the willful misconduct
or negligence of MARKETING AUTHORISATION HOLDERS in its performance in
accordance with this Agreement.
14.3 Indemnification pursuant to Clauses 14.1 and 14.2 as the case may be
shall be subject to the condition that either Party shall notify the
other if it becomes aware of any claims, actions, suits, losses,
liability, costs or expenses in respect of which indemnification by
the other Party is called for by this Article. Both Parties shall
consult and co-operate to the extent possible in the defense of any
such claims or suits or negotiations pertaining hereto.
Notwithstanding each Party's responsibility in respect of court
proceedings, neither Party shall take any action with respect to such
claims or suits to prejudice the interests of the other Party.
14.4 Each Party shall effect and maintain product liability insurance
reasonably sufficient to cover damages relating to the Product under
this Agreement. The Parties shall provide each other with proof of
such insurance upon request.
14.5 In the event any third party makes a claim or files a suit alleging
that Teva or the Marketing Authorisation Holders have infringed an
intellectual property right, including a patent or trademark, of such
third party, relating to a Product (an "Infringement Claim"), the
parties agree to inform each other of such infringement or alleged
infringement and to assist each other in taking the necessary steps to
defend these rights.
14.6 Upon receipt of notice to the parties of an Infringement Claim, (i) if
the parties jointly determine to continue to sell the Products in the
Territory, they shall then jointly agree in writing upon how any
eventual liabilities
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will be shared if the third party prevails in the Infringement Claim;
(ii) if Teva decides that the sales of the Products in the Territory
shall continue and the Marketing Authorisation Holders have not
agreed, the Marketing Authorisation Holders shall continue the sales
of the Products in the Territory only upon receipt from Teva of a
written indemnity for all costs and liabilities relating to the
Infringement Claim; and (iii) if the Marketing Authorisation Holders
decides that the sales of the Products in the Territory shall continue
and Teva has not agreed, the Teva shall continue supply the Products
to the Marketing Authorisation Holders only upon receipt from the
Marketing Authorisation Holders of a written indemnity for all costs
and liabilities relating to the Infringement Claim. If no agreement is
reached as set forth in the prior sentence, Teva shall repurchase any
inventory of the affected Products held by the Marketing Authorisation
Holders at the paid to the Teva Manufacturing Site and pay for any
costs and fees for returning such inventory.
15. SEVERABILITY
If any term or provision of this Agreement shall be held invalid or
unenforceable, the remaining terms hereof shall not be affected but
shall be valid and enforced to the fullest extent permitted by law.
The Parties hereto shall use best efforts to substitute a valid, legal
and enforceable provision, which, in so far as practical, implements
the purpose hereof.
16. WAIVER
Failure by either Party at anytime to terminate this Agreement (either
in whole or in part) as a result of a material or persistent breach of
the terms hereof by the other Party or to enforce any of the terms or
conditions of this Agreement, shall not prejudice the right of that
Party subsequently to terminate this Agreement (either in whole or in
part) or enforce its rights hereunder for a subsequent breach of its
obligation hereunder by the other Party.
17. ASSIGNMENT AND DELEGATION
This Agreement, or any part thereof, and the rights and/or obligations
of TEVA hereunder, shall be assignable and/or delegable to its
Affiliates without the prior written consent of the other Party
provided that any such assignment or delegation shall not relieve such
assigning party of its obligations hereunder, and such party shall
remain liable for the proper performance hereunder.
15
18. ENTIRE AGREEMENT
This Agreement, including the preamble and Appendices, constitutes,
with the Licence Agreement and the Rights Agreement, signed on the
same date, the entirety of the agreements binding the Parties on the
subject matter hereof and cancels and replaces all previous
agreements, negotiations, commitments and documents pertaining to the
object of this Agreement. Any amendment thereto, discharge or release
therefrom or other modification thereto, shall be expressed in writing
and signed by the Parties' duly authorised representatives.
For purposes of clarity, no Firm Order, or similar documents delivered
subsequent to the date of this Agreement containing terms and
conditions inconsistent herewith or in addition to this Agreement
shall be effective to amend or modify this Agreement.
19. INDEPENDENT PARTY
This Agreement does not constitute either Party as the agent, legal
representative, or partner of the other for any purpose whatsoever.
Neither Party is granted any right or authority to assume or to create
any obligation or responsibility, express or implied, on behalf of or
in the name of the other, with regard to any manner or thing
whatsoever, unless otherwise specifically agreed upon in writing.
20. NOTICES
Any notice or other written communication required or permitted to be
made or given hereunder may be made or given by either party by
facsimile; by first-class mail, postage prepaid; or by air courier to
the mailing address or facsimile numbers set as below:
If to TEVA:
Teva Pharmaceutical Industries Ltd.
5, Basel Street, 49131 Petach Tiqva, Israel
Attention: VP Export & Coordination (N. America/Europe)
Telephone: +972 3 9267 248 Facsimile: +972 3 9267 431
With a copy to:
Teva Pharmaceuticals Europe B.V.
16
Industrieweg 23; 3641 RK Mijdrecht, The Netherlands
Attention: President
Telephone: +31 (0)297 290 200 Facsimile: +31 (0)297 290 289
If to MARKETING AUTHORISATION HOLDERS:
C/o Laboratorios Belmac, S.A.
Montearagon, 9 - 1.(a)pta, 28033 Madrid, Spain
Attention: Managing Director
Telephone: Facsimile:
With a copy to:
Bentley Pharmaceuticals, Inc.
65 Lafayette Road, 3rd Floor
North Hampton, NH 03862, USA
Attention: President
Telephone: +1 603 964 8006 Facsimile: +1 603 964 6889
or to such other addresses or facsimile numbers as either party shall
designate by notice, similarly given, to the other party. Notices or
written communications shall be deemed to have been sufficiently made
or given: (i) if mailed, fourteen days after being dispatched by mail,
postage prepaid; (ii) if by air courier, seven days after delivery to
the air courier company; or (iii) if by facsimile with confirmed
transmission, within five days of transmission.
21. GOVERNING LAW AND DISPUTE SETTLEMENT
This Agreement, shall be exclusively governed and construed in
accordance with the laws of The Netherlands. The Parties shall
undertake all reasonable efforts in order to solve in an amicable
manner any controversy arising in connection with this Agreement. Any
controversy or dispute or claim arising between the Parties which
cannot be settled amicably in connection with this Agreement or any
agreement in furtherance thereof including disputes with respect to
the validity of those Agreements, shall be finally and exclusively
settled by the competent court in Utrecht, The Netherlands.
22. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be
considered one and the same agreement.
17
23. FORCE MAJEURE
23.1 Neither Party shall be liable for non-performance or delay in the
fulfilment of its obligations when any such non-performance or delay
shall be occasioned by and unforeseeable cause beyond the reasonable
control of Teva or Marketing Authorisation Holder, as the case may be,
including without limitation, acts of God, fire, flood, earthquakes,
explosions, sabotage, strikes, or labour disturbances (regardless of
the reasonableness of the demands of the labour force), or any acts,
restraints, requisitions, regulations, or directives issued by a
competent government authority ("Force Majeure Events").
18
23.2 In the event that either Party is prevented from discharging its
obligations under this Agreement on account of a Force Majeure Event,
such Party shall notify the other forthwith, and shall nevertheless
make every endeavour, in the utmost good faith, to discharge its said
obligations, even if in a partial or compromised manner. In the event
a Force Majeure Event subsists for a period of ninety (90) consecutive
days, the Party not claiming the Force Majeure Event shall be entitled
to terminate this Agreement forthwith, on written notice to the Party
claiming the Force Majeure Event.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement and the
Appendices hereto as of the date below.
TEVA PHARMACEUTICAL INDUSTRIES LTD. LABORATORIOS BELMAC, S.A.
Signature: /s/ B.TH. VISSER Signature: /s/ JAMES R. MURPHY
------------------------------ -------------------
Name: B.TH. Visser Name: James R. Murphy
Designation: V.P. Europe Designation: President
Signature: /s/ S.W. HU Signature:
------------------------------ -------------------
Name: S.W. Hu name:
---------------------------
Designation: Legal Counsel Europe designation:
--------------------
Date: July 18, 2000 date: July 18, 2000
LABORATORIOS DAVUR S.L.
Signature: /s/ JAMES R. MURPHY
--------------------------
Name: James R. Murphy
Designation: President
Signature:
--------------------------
Name:
--------------------------
Designation:
--------------------------
Date: July 18, 2000
19
APPENDIX A
LIST OF PRODUCTS Page 1 OF 2
Product Nr. Active Ingredient Formulation
- ----------- ----------------- -----------
* * *
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
20
APPENDIX A
List of Products Page 2 of 2
Product Nr. Active Ingredient Formulation
- ----------- ----------------- -----------
* * *
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
21
APPENDIX B
NON-BINDING COST ESTIMATES OF MANUFACTURE BY TEVA MANUFACTURING SITE
PURSUANT TO CLAUSE 5.1
Page 1 of 2
Product Nr. Active Ingredient Cost per 1,000 tabl/caps unless
otherwise indicated (in U.S. $)
- ----------- ----------------- ------------------------------------
* * *
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
22
APPENDIX B
NON-BINDING COST ESTIMATES OF MANUFACTURE BY TEVA MANUFACTURING SITE
PURSUANT TO CLAUSE 5.1
Page 2 of 2
Product Nr. Active Ingredient Cost per 1,000 tabl/caps unless
otherwise indicated (in U.S. $)
- ----------- ----------------- ------------------------------------
* * *
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
23
APPENDIX C
NON-BINDING ANTICIPATED PATENT EXPIRY DATES SUBJECT TO CHANGE
PURSUANT TO CLAUSE 8.1
PRODUCT NR. ACTIVE INGREDIENT DATE PATENT NR.
- ----------- ----------------- ---- ----------
* * * *
* Confidential information has been omitted and filed confidentially
with the Securities and Exchange Commission.
24
APPENDIX D
ANNUAL MINIMUM QUANTITIES PURSUANT TO CLAUSE 4.2
Batch size not available yet on the date of this Agreement.
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT.
LICENCE AGREEMENT
is made and entered into as of this 18th day of July 2000
between
TEVA PHARMACEUTICAL INDUSTRIES LTD.
a limited liability company incorporated under the laws of Israel, of 5, Basel
Street, 49131 Petach Tiqva, Israel (hereinafter referred to as "TEVA")
and
LABORATORIOS BELMAC,S.A.
a limited liability company incorporated under the laws of Spain, of
Montearagon, 9 - 1.(a)pta, 28033 Madrid, Spain
and
LABORATORIOS DAVUR S.L.
a limited liability company incorporated under the laws of Spain, of Lopez de
Hoyos 327, 28043, Madrid, Spain
( "LICENSEES " defined below)
WHEREAS TEVA together with its Affiliates is developing and/or has
developed and is engaged, inter alia, in the manufacture,
distribution, marketing and sale of certain finished
pharmaceutical products ( "Products" as defined hereunder), from
which specifically are excluded TEVA's oncology products other
than the solid dose formulations thereof; and
WHEREAS it is the intention of TEVA together with its Affiliates to
commence with the registration, marketing, distribution and sale
of the Products in the Territory (as defined hereinafter) as soon
as possible, and that for such purposes, TEVA together with its
Affiliates wishes to appoint LICENSEES as non-exclusive Marketing
Authorisation Holder of certain Products and to license on a
non-exclusive basis the registration dossiers of such Products
that TEVA together with its Affiliates owns or has in its
possession to LICENSEES with the purpose of submitting the
registration dossiers with the relevant regulatory authorities in
the Territory in order to obtain marketing authorisations for the
Products in the Territory and to supply LICENSEES with the
Products in the Territory;
WHEREAS LICENSEES have the capability and the facilities to register,
import, promote, package, sell, market and distribute
pharmaceutical products in the Territory; and
WHEREAS LICENSEES wish to accept their appointment as non-exclusive
holders of Marketing Authorisation and to acquire the
non-exclusive licence right of the registration dossiers of
certain Products and be supplied with their requirements of such
Products for marketing, distribution and sale in the Territory,
subject to the terms and conditions of this Agreement.
WHEREAS TEVA and LICENSEES wish to confirm in writing the undertakings
described above as well as other mutual undertakings with respect
to other Products described herein.
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
1. INTERPRETATION AND DEFINITION
1.1 The preamble to this Agreement forms an integral part hereof. Clause
headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the interpretation of this
Agreement. All agreed upon and signed annexes to this Agreement,
whether attached at the time of signature hereof or at any time
thereafter, shall be construed as an integral part of this Agreement.
In this Agreement, the following expressions shall bear the meanings
assigned to them below and cognate expressions shall bear
corresponding meanings:
1.1.1 "Affiliates" shall mean with respect to either party, any
person, corporation, company, partnership, joint venture or
other entity controlling, controlled by or under common
control with such party.
"Control" shall mean the holding of 50% or more of the
common voting stock or ordinary shares in, or the right to
appoint 50% or more of the directors of, or the right to
share in 50% or more of the profits of, the said
corporation, company, partnership, joint venture or entity.
1.1.2 "A Products" shall mean Products being the primary objects
of this Agreement and the Supply Agreement between TEVA
together with its Affiliates and LICENSEES set forth in
Appendix A of this Agreement of which the Dossier is either
complete for submission to the Regulatory Authorities or in
development. Such list shall be amended from time to time to
include additional future Products to be mutually agreed
upon between the Parties and/or delete any Products of which
development has been abandoned for whatever reason.
2
1.1.3 "B Products" shall mean Products as listed in Appendix B,
which are excluded from A Products solely on the grounds
that such Products are already being Commercialised by
LICENSEES under LICENSEES' existing contractual commitments.
LICENSEES agree to undertake the regulatory endeavours for
TEVA's B Product Dossiers under Article 4 of this Agreement
on behalf of TEVA. Such list may be amended from time to
time by agreement of TEVA and LICENSEES to include
additional future Products.
1.1.4 "Commercialise" / "Commercialisation" shall mean the
activities carried out in the Territory pertaining to the
importation into, packaging, distribution, marketing and
sale of Products.
1.1.5 "C Products" shall mean a list of Products to be attached as
Appendix C to this Agreement for which Products Licensees
have limited resources available for Commercialisation.
LICENSEES agree to undertake the regulatory endeavours under
Article 4 of this Agreement on behalf of TEVA. Such list may
be amended from time to time by agreement of TEVA and
LICENSEES to include additional future Products.
1.1.6 "Dossier" shall mean the A Product and/or B Product and/or C
Product registration file, as the case may be, which shall
contain all necessary information and data, including
without limitation pharmacokinetic and stability studies,
expert reports, the open part of the Drug Master File, to be
submitted to the Regulatory Authorities in order to obtain
the Marketing Authorisation for such Product in the
Territory.
1.1.7 "LICENSEES" shall mean Laboratorios Belmac, S.A. which is
owned 100% by Bentley Pharmaceuticals, Inc. and/or
Laboratorios Davur S.L. which is owned 100% by Laboratorios
Belmac, S.A., except in both cases shares are held by
directors of each company.
1.1.8 "Marketing Authorisation" shall mean any approvals, licences
and permits, including any price and reimbursement
approvals, required by the Regulatory Authorities in the
Territory for the
3
importation, distribution, marketing and sale of A Products
and/or B Products and/or C Products in the Territory.
1.1.9 "Products" shall mean finished pharmaceutical products ready
for use in humans, from which definition oncology products
other than the solid dose formulations thereof are excluded,
now or hereafter developed by TEVA or its Affiliates, or,
now or hereafter in development by TEVA or its Affiliates,
for which TEVA or both Parties have expressed the interest
and commitment to Commercialise in the Territory. The
definition may be extended to include Dossiers that have not
been developed by TEVA and/or its Affiliates, to which title
belongs to TEVA and/or its Affiliates now or hereafter.
Products that have been initially classified as B Products
or C Products may at any time during the term of this
Agreement be re-classified in A, B, or C Products, if agreed
in writing between the Parties.
1.1.10 "Regulatory Authorities" shall mean any government body or
public organisation responsible for all regulatory matters,
including those incidental thereto, concerning the
Commercialisation of finished pharmaceutical products in the
Territory.
1.1.11 "Supply Agreement" shall mean the supply agreement entered
into between the Parties at the same date of this Agreement.
1.1.12 "Territory" shall mean Spain, including its geographic
territories and possessions and other regions as agreed
between the Parties in writing.
1.1.13 "TEVA Regulatory Contact" shall mean TEVA, consultants or
any party that is so designated by TEVA from time to time,
responsible for the co-ordination and process of certain
regulatory matters on behalf of TEVA under this Agreement.
TEVA shall advise LICENSEES of any changes to the contact
details of Teva Regulatory Contact.
2. APPOINTMENT MARKETING AUTHORISATION HOLDER
2.1 TEVA appoints each of the LICENSEES as non-exclusive Marketing
Authorisation Holder for the A Products in the Territory, which each
of the LICENSEES accepts, and as such, the LICENSEES shall be
permitted to Commercialise the A Products in the Territory.
4
2.2 TEVA grants each of the LICENSEES for the term of this Agreement a
royalty free non-exclusive licence in the Territory of the A Product
Dossiers, which LICENSEES accept, for the sole purpose of LICENSEES
submitting the A Product Dossiers with the relevant Regulatory
Authorities in order to obtain each in their own name one or more
Marketing Authorisations of the respective A Products in the
Territory.
2.3 TEVA grants LICENSEES (each or both as the case may be) for the term
of this Agreement a royalty free non-exclusive limited licence in the
Territory of the B Product and C Product Dossiers from TEVA, which
LICENSEES accept. Such licence is restricted to LICENSEES' sole use of
submitting the B Product Dossier and C Product Dossier from TEVA with
the relevant Regulatory Authorities in order to obtain in their own
name one or more Marketing Authorisations of the respective B Products
and/or C Products from TEVA in the Territory as agreed in writing
between the Parties. For clarity purposes, the licence granted under
this Clause shall be restricted to one or more Marketing
Authorisations per B Product and C Product to be obtained and
maintained by the LICENSEES in the aggregate. LICENSEES shall not be
permitted to Commercialise the B Products and C Products from TEVA in
the Territory without prior written authorisation from TEVA.
2.4 All proprietary rights to the A Product, B Product and C Product
Dossiers from TEVA shall not be assigned to LICENSEES and shall remain
fully vested in TEVA and LICENSEES shall not be allowed to use the A
Product, B Product and C Product Dossier from TEVA for any other
purpose than that described in Clause 2.1 above and in the Supply
Agreement in respect of A Products and Clause 2.3 above in respect of
B Products and C Products from TEVA.
2.5 LICENSEES shall maintain the Marketing Authorisations of A Products, B
Products and C Products from TEVA in their own name and shall refrain
from granting any cross-referral, duplicate access and so-called
piggy-backs to any party without prior written authorisation from
TEVA.
3. MUTUAL CO-OPERATION
3.1 From time to time TEVA shall provide, in its discretion, LICENSEES
with a list of Products with the object of inclusion in this Agreement
and the Supply Agreement. From such list LICENSEES shall identify, in
their discretion, the A Products, which shall be affixed to this
Agreement and the Supply Agreement as addendum. TEVA shall have the
right to remove any A Products from such list at any time prior to the
date of transfer by TEVA of the A Product Dossier to LICENSEES
pursuant to Clause 4.2 below.
5
3.2 Both Parties shall identify from the Products that have not been
identified as A Products pursuant to Clause 3.1 above, the B Products,
which shall be affixed to this Agreement as addendum. Without
derogation to Clause 2.3 above LICENSEES shall use their best efforts
to find suitable partners for TEVA to Commercialise the B Products in
the Territory.
4. MUTUAL REGULATORY ENDEAVOURS
4.1 TEVA shall provide LICENSEES with the Dossiers of the A Products and
any other necessary information in the English language to submit the
Dossiers to the relevant Regulatory Authorities to obtain the
Marketing Authorisation in the Territory in their own name. TEVA
undertakes to sign all necessary waivers or letters of approval with
the sole purpose of enabling the granting of the Marketing
Authorisation to LICENSEES.
Parties acknowledge and agree that the anticipated data package
availability set forth in Appendix D are subject to change. TEVA
shall inform LICENSEES of any changes to such dates.
4.2 TEVA shall transfer by mutual consent the A Product Dossier to each of
the LICENSEES from the anticipated date of data package availability.
The transfer by TEVA of the A Product Dossier shall be subject to the
condition precedent of TEVA's prior receipt from each of the LICENSEES
of a letter of access concerning the relevant Dossier and Marketing
Authorisation, or similar document, together with the power of
attorney from each of the LICENSEES to TEVA to sign on behalf of
Licensees such notice, or similar document solely in the Permitted
Event (as defined hereunder) under this Agreement in form and
substance satisfactory to TEVA,
LICENSEES shall submit the Dossiers of the A Products with the
Regulatory Authorities within six (6) months of the date of their
receipt from TEVA . LICENSEES shall provide TEVA with copies of the
Acknowledgement of Receipt from the Regulatory Authorities of each
submitted Dossier. LICENSEES shall be responsible for an accurate
translation of the Dossiers of the A Products and any other necessary
information in Spanish. LICENSEES shall provide TEVA upon its request
with copies of such translations free of charge.
Licensees shall submit the Dossiers of the A Products to the
Regulatory Authorities in the Territory in accordance with all
applicable laws and regulations, including without limitation data
exclusivity rules, applicable now or hereafter in the Territory.
6
4.3 TEVA shall provide LICENSEES with any additional information and
assistance required answering any questions raised by the Regulatory
Authorities in respect of the submissions pursuant to Clause 4.2
above. The information and assistance to be provided by TEVA shall be
based on data and information available with TEVA at the time of the
request from the Regulatory Authorities for additional information.
LICENSEES shall refrain from answering any questions concerning Part
II of the Dossier without prior written authorisation from TEVA.
In the event any request from the Regulatory Authorities requires
additional studies, data or other information involving substantial
work and/or costs, Parties will engage in good faith discussions to
decide whether the Marketing Authorisation procedure of the
respective A Product is to be progressed. If it is decided to
continue such procedure Parties shall agree on each Parties' share in
the costs involved.
4.4 LICENSEES shall be responsible for obtaining Marketing Authorisations
of the A Products and the maintenance thereof, including without
limitation any renewals and/or variations. LICENSEES shall bear all
fees, costs and expenses incurred in connection hereof.
4.5 TEVA shall use its best reasonable efforts to assist LICENSEES with
the validating and updating of the Dossier and corresponding Marketing
Authorisation as required by local regulations during the term of this
Agreement.
4.6 LICENSEES shall provide TEVA with photocopies of the Marketing
Authorisations granted to LICENSEES, including without limitation any
renewal certificates.
4.7 The regulatory endeavours of TEVA under this Article shall be
undertaken by TEVA Regulatory Contact.
4.8 The provisions of and mutual undertakings under this Article shall
also apply to B Products and C Products from TEVA to be agreed upon by
the Parties, except that all cost related to the C Products as
referred to in Clause 4.4 above shall be paid by TEVA. If, however, by
written consent of the Parties a C Product becomes an A Product,
Licensees will refund such costs to TEVA. LICENSEES shall provide TEVA
with the specification of all cost involved subject to TEVA's approval
prior to Licensees' undertakings under this Article.
5. REPRESENTATIONS AND WARRANTIES
7
5.1 TEVA represents and warrants to the best of its knowledge after
reasonable enquiry that the development of the A Product, B Product
and C Product Dossiers from TEVA and the manufacture, use and sale of
the A Product has not infringed any third party intellectual property
rights, it being understood that the sale of certain A Products in the
Territory is anticipated to be cleared from patent protection on the
dates mentioned in Appendix E. For the avoidance of any doubt, the
anticipated dates set forth in Appendix E are based on the information
available to TEVA at the date of this Agreement. TEVA shall inform
LICENSEES in writing of any information becoming available to TEVA in
the future that would alter such dates.
5.2 TEVA represents and warrants that each of the A Product, B Product and
C Product Dossier from TEVA is valid and comply, to the best of its
knowledge, with the standards and specifications in force on the date
on which it was transferred to LICENSEES. TEVA represents that it or
its Affiliates has the full right, title and interest in the A
Products and C Products and the right to grant the interests thereto
provided in this Agreement.
5.3 TEVA and LICENSEES each represent and warrant it has all required
permits, approvals, regulatory licences and resources to carry on its
business and to undertake the activities contemplated in this
Agreement.
5.4 TEVA and LICENSEES each represent and warrant to the best of their
knowledge after reasonable enquiry that their trademarks or marks to
be used in the Commercialisation of the A Products have not infringed
any third party trademark rights.
5.5 Licensees represent and warrant to the best of their knowledge after
reasonable enquiry that their undertakings under this Agreement,
including without limitation their regulatory endeavours under Article
4 and Commercialisation under Article 6 have not infringed any third
party intellectual property rights.
5.6 TEVA and LICENSEES agree to notify each other promptly if the
representations under this Article are no longer true.
6. LAUNCH OF A PRODUCT ON MARKET
6.1 LICENSEES shall Commercialise each A Product in the Territory within
24 months following the date of grant of the respective Marketing
Authorisation. If on the date of such Commercialisation patent rights
to a certain A Product owned by a third party have not expired,
LICENSEES
8
shall then Commercialise such A Product within two (2) months
following such expiry date.
Parties entered into the Supply Agreement on the same date of this
Agreement.
6.2 During the term of LICENSEES' appointment as Marketing Authorisation
Holder under this Agreement, neither LICENSEES, nor its Affiliates,
shall directly or indirectly without prior authorisation of TEVA (i)
solicit customers for the A Products outside the Territory, (ii)
establish a branch or distribution depot for the A Products outside
the Territory and (iii) sell the A Products outside the Territory in
whatever form or fashion.
6.3 LICENSEES shall Commercialise each A Product in the Territory under
their own trademarks or marks. Such trademarks or marks used by
LICENSEES shall remain the exclusive property of LICENSEES.
7. MATERIAL EVENT
7.1 The following occurrences shall be considered a Material Event for A
Products for purposes of this Agreement and the Supply Agreement:
7.1.1 for each respective A Product, where LICENSEES fail to place
a purchase order for such A Product with TEVA within 24
months of the date of the respective Marketing
Authorisation, or such later date pursuant to Article 6 of
this Agreement; or
7.1.2 for all A Products, where LICENSEES shall come under the
direct or indirect or de facto direction or control of any
party other than the direction or control which such parties
are under on the date of this Agreement; or
7.1.3 for all A Products, upon TEVA's initiation of commercial
operations in Spain concerning all or substantially all of
the Products through Teva's acquisition of or joint venture
engagement or similar transaction with a party in Spain.
7.2 For the avoidance of any doubt, the occurrence of any Material Event
shall not itself terminate this Agreement, save the provisions
pursuant to Article 10 below.
8. CONSEQUENCES MATERIAL EVENT
9
Upon the occurrence of any Material Event pursuant to Article 7
above, LICENSEES shall be obligated to transfer or arrange the
transfer to TEVA or Affiliate designated by TEVA within one (1) month
as from the date of such Material Event the letter of access, or
similar document in form and substance satisfactory to TEVA
concerning each relevant Marketing Authorisation, including any
Marketing Authorisations granted after the date of Material Event
which were applied for from the Regulatory Authorities, together with
a photocopy of the corresponding complete and current Dossier of
LICENSEES for each A Product the Material Event has occurred free of
charge. LICENSEES shall undertake to sign all papers, documents and
instruments, and do all that may be necessary to obtain such
Marketing Authorisation and Dossier in Teva's name.
In the event TEVA or designated Affiliate has not obtained such
relevant letter of access or similar document within such one (1)
month period, this event shall be a "Permitted Event" under this
Agreement. Licensees shall permit Teva to exercise the power of
attorney pursuant to Clause 4.2 above to obtain such Marketing
Authorisation to Teva or designated Affiliate.
9. CONFIDENTIALITY
9.1 The term "Confidential Information" shall hereafter be defined as any
secret and/or proprietary information, including without limitation
chemical processes, pharmaceutical formulations, business information
and data, business strategies, product development information,
financial information and data, market studies, and possible or
intended submissions to the relevant Regulatory Authorities,
regardless whether such information is verbal, written, graphic,
photographic, recorded, prototype, sample or in any other form.
9.2 Each Party shall treat and maintain in strict confidence and secrecy
and shall not use, for a period of ten (10) years from the date of
termination of this Agreement, the Confidential Information disclosed
by the other Party (including all information disclosed prior to the
date hereof). Neither Party shall use any portion of the Confidential
Information disclosed to it by the other Party or disclose such
information to any person or entity whatsoever, except as specifically
provided herein. The Parties may disclose the Confidential Information
of the other Party to their respective consultants, Affiliates,
directors, officers and employees, but only to the extent for which
such disclosure is necessary in furtherance of this Agreement,
provided such Party shall procure from such persons commitments to
treat and maintain the Confidential Information in strict confidence
and secrecy and to not use the information for any purpose
10
whatsoever except in the performance of their duties in furtherance of
this Agreement.
9.3 Confidential Information shall not include information that can
clearly be demonstrated to have been:
9.3.1 Generally known to the public through no fault of the Party
to whom the Confidential Information was disclosed;
9.3.2 Known to and in the lawful possession of a Party prior to
disclosure thereto by the other Party, as evidenced by
written evidence; or
9.3.3 Obtained from a third party lawfully in possession and with
no limitation regarding disclosure thereof, and having the
right to disclose the same; or
9.3.4 Required to be disclosed by operation of law, provided that
prior to any such disclosure the Party required to make such
disclosure shall notify the other Party in order to enable
the other Party to seek an appropriate protective order and
provided that any such disclosure shall only be to the
extent required to comply with the applicable law.
9.4 In the event that either Party at any time requests return of the
Confidential Information that it provided to the other Party, the
other Party shall promptly surrender to the requesting Party all
documents, records, notes, copies, computer files and other material
containing the applicable Confidential Information and shall not
retain any copies thereof.
10. TERM AND TERMINATION
10.1 This Agreement and the Supply Agreement that is entered into on the
same date shall become effective as from the date of signature and
shall for each A Product be concluded an initial term of 5 years
starting from the date of its Commercialisation and shall thereafter
be renewed automatically on an annual and Product-by-Product basis
unless either party provides the other with not less than 6 months'
prior written notice of its intention not to renew.
10.2 This Agreement that is entered into in respect of B Products and C
Products from TEVA shall become effective as from the date of
signature and shall thereafter be renewed automatically on an annual
basis and Product-by-Product basis unless either Party provides the
other with not less than thirty (30) days prior written notice of its
intention not to renew.
11
10.3 Notwithstanding Clause 10.1 and 10.2 above, this Agreement may be
terminated earlier in the way and manner described below:
10.3.1 In the event that a Party to this Agreement should be
dissolved, becomes insolvent, makes a voluntary or
involuntary assignment of assets for the benefit of
creditors, be assigned in bankruptcy court, or otherwise be
faced with circumstances reasonably warranting the
conclusion that, that Party will not be able within the
foreseeable future, to adequately comply with its
obligations under this Agreement, then the other Party to
this Agreement may terminate the Agreement immediately, by
giving notice of its intention to terminate in writing, and
without the Party thereby being terminated having any
entitlement to compensation under whatever title;
10.3.2 Either Party shall have the right to terminate this
Agreement upon three (3) months written notice to the other
Party in the event of any (direct or indirect) voluntary,
involuntary or compulsory change in control or effective
control of the other Party, without any entitlement to
compensation under whatever title as a result of such
termination.
10.4 Notwithstanding Clause 10.1 and 10.2 above, this Agreement may be
terminated earlier and in part on a Product-by-Product basis if one of
the Parties to this Agreement commits a material breach of any
provision of this Agreement pertaining to a certain A Product, B
Product and/or C Product from TEVA and fails to remedy such breach
within forty-five (45) days after written notification of the breach
by the Party not in default, then, the Party not in default shall have
the right to terminate this Agreement in regard of that relevant
Product. If it is apparent that such breach is not capable of remedy,
the Party not in default shall have the right to terminate this
Agreement immediately on the date of its written notification of the
breach.
10.5 Notwithstanding Clause 10.1 above, this Agreement may be terminated
earlier and in part on a Product-by-Product basis in the way and
manner described in Clause 12.3 of the Supply Agreement.
11. RIGHTS AND OBLIGATIONS UPON TERMINATION
11.1 Upon termination of this Agreement pursuant to Clause 10.1 above, TEVA
shall assign its rights in the relevant A Product Dossier and
corresponding Marketing Authorisations to LICENSEES subject to the
conditions precedent that LICENSEES have provided TEVA within one (1)
month from the date of such termination with the letter of access or
12
similar document in form and substance satisfactory to TEVA concerning
each respective Marketing Authorisation, together with a photocopy of
the complete and current Dossier of LICENSEES and in the way and
manner described in Article 8 of this Agreement. For the avoidance of
any doubt, the assignment of rights shall be non-exclusive and for the
Territory only.
11.2 Upon termination of this Agreement pursuant to Clause 10.2 above for
each respective B Product and/or C Product from Teva, LICENSEES shall
provide TEVA or Affiliate designated by TEVA within one (1) month from
the date of such termination with the letter of access or similar
document in form and substance satisfactory concerning each respective
Marketing Authorisation, including any applications for Marketing
Authorisations, together with the original complete and current
Dossier of the relevant B Product and/or C Product from TEVA.
11.3 Upon termination of this Agreement of each respective A Product for
reason or cause of TEVA's material breach of any of its obligations
under this Agreement and/or the Supply Agreement, the provisions of
Clause 11.1 of this Agreement shall survive such termination.
11.4 Upon termination of this Agreement of each respective A Product for
reason or cause of (i) each of LICENSEES' material breach of any of
its obligations under this Agreement and/or the Supply Agreement (ii)
the direct or indirect change in control of each of LICENSEES pursuant
to Clause 10.3.2 above and (iii) LICENSEES' failure to satisfy the
annual minimum quantities on a Product-by-Product basis pursuant to
Clause 12.3.2 of the Supply Agreement and (iv) Clause 10.3.1 of this
Agreement, LICENSEES shall within one (1) month from the date of such
termination provide TEVA or Affiliate designated by TEVA with the
letter of access or similar document in form and substance
satisfactory to TEVA concerning each respective Marketing
Authorisation, including any applications for Marketing
Authorisations, together with the original of the complete and current
relevant Dossier of LICENSEES and in the way and manner described in
Article 8 of this Agreement. LICENSEES shall sign all necessary
waivers or letters of approval with the sole purpose of transferring
the concerned Product Dossiers and/or Marketing Authorisations back to
TEVA.
11.5 In the event TEVA or designated Affiliate has not obtained the letter
of access or similar document in form and substance satisfactory to
TEVA within such one (1) month period under this Article, this event
shall be construed as Permitted Event under this Agreement. Licensees
shall permit TEVA to exercise the power of attorney pursuant to Clause
4.2
13
above to transfer such Marketing Authorisation to TEVA or designated
Affiliate.
11.6 Upon termination of this Agreement for whatever reason or cause,
neither Party shall be entitled to any compensation for loss of profit
or loss of goodwill directly or indirectly attributable to (i) such
termination or (ii) for any other reason.
11.7 Upon termination for whatever reason or cause, LICENSEES and TEVA
shall return to each other all Confidential Information supplied by
one Party to the other in accordance with Clause 9.4 above.
11.8 The provisions of Articles 1, 5, 9, 11, 12 and 19 shall survive
termination of this Agreement.
12. CROSS-INDEMINIFICATION
12.1 TEVA agrees to defend, indemnify and hold harmless LICENSEES and their
Affiliates, their respective officers, agents, and employees from and
against any and all claims, losses, suits, liabilities, damages and
expenses (including, but not limited to, reasonable attorney's fees)
arising out of injuries to persons and/or damage to property due to
(i) a breach by TEVA of any of its representations and warranties
under Article 5 of this Agreement and/or (ii) a material breach by
TEVA of any of its obligations under this Agreement and/or (iii) the
wilful misconduct or negligence of TEVA in its performance in
accordance with this Agreement.
12.2 LICENSEES agrees to defend, indemnify and hold harmless TEVA and its
Affiliates, its respective officers, agents, and employees from and
against any and all claims, losses, suits, liabilities, damages and
expenses (including, but not limited to, reasonable attorney's fees)
arising out of injuries to persons and/or damage to property due to
(i) a breach by LICENSEES of any of their representations and
warranties under Article 5 of this Agreement and/or (ii) a material
breach by LICENSEES of any of their obligations under this Agreement
and/or (iii) any damages attributable to any acts or omissions in the
Commercialisation of the Products and/or (iv) the wilful misconduct or
negligence of LICENSEES in their performance in accordance with this
Agreement.
12.3 Indemnification pursuant to Clauses 12.1 and 12.2 as the case may be
shall be subject to the condition that either Party shall notify the
other if it becomes aware of any claims, actions, suits, losses,
liability, costs or expenses in respect of which indemnification by
the other Party is called for by this Article. Both Parties shall
consult and co-operate to the extent
14
possible in the defence of any such claims or suits or negotiations
pertaining hereto. Notwithstanding each Party's responsibility in
respect of court proceedings, neither Party shall take any action with
respect to such claims or suits to prejudice the interests of the
other Party.
12.4 In the event any third party makes a claim or files a suit alleging
that Teva or the Marketing Authorisation Holders have infringed an
intellectual property right, including a patent or trademark, of such
third party, relating to a Product (an "Infringement Claim"), the
parties agree to inform each other of such infringement or alleged
infringement and to assist each other in taking the necessary steps to
defend these rights.
12.5 Upon receipt of notice to the parties of an Infringement Claim, (i) if
the parties jointly determine to continue to sell the Products in the
Territory, they shall then jointly agree in writing upon how any
eventual liabilities will be shared if the third party prevails in the
Infringement Claim; (ii) if Teva decides that the sales of the
Products in the Territory shall continue and the Marketing
Authorisation Holders have not agreed, the Marketing Authorisation
Holders shall continue the sales of the Products in the Territory only
upon receipt from Teva of a written indemnity for all costs and
liabilities relating to the Infringement Claim; and (iii) if the
Marketing Authorisation Holders decides that the sales of the Products
in the Territory shall continue and Teva has not agreed, the Teva
shall continue supply the Products to the Marketing Authorisation
Holders only upon receipt from the Marketing Authorisation Holders of
a written indemnity for all costs and liabilities relating to the
Infringement Claim. If no agreement is reached as set forth in the
prior sentence, Teva shall repurchase any inventory of the affected
Products held by the Marketing Authorisation Holders and pay for such
inventory returned at the price paid to Teva.
13. SEVERABILITY
If any term or provision of this Licence Agreement shall be held
invalid or unenforceable, the remaining terms hereof shall not be
affected but shall be valid and enforced to the fullest extent
permitted by law. The Parties hereto shall use best efforts to
substitute a valid, legal and enforceable provision, which, in so far
as practical, implements the purpose hereof.
14. WAIVER
Failure by either Party at anytime to terminate this Agreement as a
result of a material or persistent breach of the terms hereof by the
other Party or to enforce any of the terms or conditions of this
Agreement, shall not
15
prejudice the right of that Party subsequently to terminate this
Agreement or enforce its rights hereunder for a subsequent breach of
its obligation hereunder by the other Party.
15. ASSIGNMENT AND DELEGATION
This Agreement, or any part thereof, and the rights and/or obligations
of TEVA hereunder, shall be assignable and/or delegable to its
Affiliates without the prior written consent of the other Party
provided that any such assignment or delegation shall not relieve such
assigning party of its obligations hereunder, and such party shall
remain liable for the proper performance hereunder.
16. ENTIRE AGREEMENT
This Agreement, including the preamble and Appendices, constitutes,
with the Supply Agreement and the Rights Agreement, signed on the same
date, the entirety of the agreements binding the Parties on the
subject matter hereof and cancels and replaces all previous
agreements, negotiations, commitments and documents pertaining to the
object of this Agreement. Any amendment thereto, discharge or release
therefrom or other modification thereto, shall be expressed in writing
and signed by the Parties' duly authorised representatives.
17. INDEPENDENT PARTY
This Agreement does not constitute either Party as the agent, legal
representative, or partner of the other for any purpose whatsoever.
Neither Party is granted any right or authority to assume or to create
any obligation or responsibility, express or implied, on behalf of or
in the name of the other, with regard to any manner or thing
whatsoever, unless otherwise specifically agreed upon in writing.
18. NOTICES
Any notice or other written communication required or permitted to be
made or given hereunder may be made or given by either party by
facsimile; by first-class mail, postage prepaid; or by air courier to
the mailing address or facsimile numbers set as below:
16
If to TEVA:
Teva Pharmaceutical Industries Ltd.
5, Basel Street, 49131 Petach Tiqva, Israel
Attention: VP Global Product Development (Generics)
Telephone: +972 3 9267 755 Facsimile: +972 3 9267 309
With a copy to:
Teva Pharmaceuticals Europe B.V.
Industrieweg 23; 3641 RK Mijdrecht, The Netherlands
Attention: President
Telephone: +31 (0)297 290 200 Facsimile: +31 (0)297 290 289
If to LICENSEES:
C/o Laboratorios Belmac, S.A.
Montearagon, 9 - 1.(a)pta, 28033 Madrid, Spain
Attention: Managing Director
Telephone: +34 91 388 7201 Facsimile: + 34 91 388 7647
With a copy to:
Bentley Pharmaceuticals, Inc.
65 Lafayette Road, 3rd Floor
North Hampton, NH 03862, USA
Attention: President
Telephone: +1 603 964 8006 Facsimile: +1 603 964 6889
or to such other addresses or facsimile numbers as either party shall
designate by notice, similarly given, to the other party. Notices or
written communications shall be deemed to have been sufficiently made
or given: (i) if mailed, fourteen days after being dispatched by mail,
postage prepaid; (ii) if by air courier, seven days after delivery to
the air courier company; or (iii) if by facsimile with confirmed
transmission, within five days of transmission.
19. GOVERNING LAW AND DISPUTE SETTLEMENT
This Agreement shall be exclusively governed and construed in
accordance with the laws of The Netherlands. The Parties shall
undertake all reasonable efforts in order to solve in an amicable
manner any controversy arising in connection with this Agreement. Any
controversy or dispute or claim arising between the Parties which
cannot
17
be settled amicably in connection with this Agreement or any agreement
in furtherance thereof including disputes with respect to the validity
of those Agreements, shall be finally and exclusively settled by the
competent court in Utrecht, The Netherlands.
20. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be
considered one and the same agreement.
18
IN WITNESS WHEREOF, each of the Parties has executed this Agreement and the
Appendices hereto as of the date below.
TEVA PHARMACEUTICAL INDUSTRIES LTD. LABORATORIOS BELMAC, S.A.
Signature: /s/ B.TH. VISSER Signature: /s/ JAMES R. MURPHY
------------------------------ --------------------
Name: B.TH. Visser Name: James R. Murphy
Designation: V.P. Europe Designation: President
Signature: /s/ S.W. HU Signature:
------------------------------ --------------------
Name: S.W. Hu Name:
--------------------------
Designation: Legal Counsel Europe designation:
-------------------
Date: July 18, 2000 date: July 18, 2000
LABORATORIOS DAVUR S.L.
Signature: /s/ JAMES R. MURPHY
------------------------------
Name: James R. Murphy
Designation: President
Signature:
--------------------------
Name:
--------------------------
Designation:
--------------------------
Date: July 18, 2000
19
APPENDIX A
LIST OF A PRODUCTS Page 1 of 2
Product Nr. Active Ingredient Formulation
- ----------- ----------------- -----------
* * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
20
APPENDIX A
LIST OF A PRODUCTS Page 2 of 2
Product Nr. Active Ingredient Formulation
- ----------- ----------------- -----------
* * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
21
APPENDIX B
List of B Products Page 1 of 1
Product Nr. Active Ingredient Formulation
- ----------- ----------------- -----------
* * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
22
APPENDIX C
List of C Products Page 1 of 1
No list available yet on the date of this Agreement
23
APPENDIX D
NON- BINDING ANTICIPATED DATES OF DATA PACKAGE AVAILABILITY REFERRED TO IN
CLAUSE 4.1
Page 1 of 2
Product Nr. Active Ingredient Anticipated Date
- ----------- ----------------- ----------------
* * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
24
APPENDIX D
NON- BINDING ANTICIPATED DATES OF DATA PACKAGE AVAILABILITY REFERRED TO IN
CLAUSE 4.1
Page 2 of 2
Product Nr. Active Ingredient Anticipated Date
* * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
25
APPENDIX E
NON-BINDING ANTICIPATED PATENT EXPIRY DATES SUBJECT TO CHANGE PURSUANT TO
CLAUSE 5.1
Page 1 of 1
Product Nr. Active Ingredient Date Patent Nr.
- ----------- ----------------- ---- ----------
* * * *
* Confidential information has been omitted and filed confidentially with
the Securities and Exchange Commission.
26
RIGHTS AGREEMENT
This RIGHTS AGREEMENT (the "Agreement"), dated as of July 18, 2000, is by
and between BENTLEY PHARMACEUTICALS, INC., a Delaware corporation ("Bentley"),
LABORATORIOS BELMAC, S.A., a company formed under the laws of Spain ("Belmac"),
LABORATORIOS DAVUR, S.L., a company formed under the law of Spain ("Davur") on
the one hand and TEVA PHARMACEUTICAL INDUSTRIES LTD., a company formed under the
laws of Israel ("Teva"), on the other hand.
WITNESSETH
WHEREAS, Teva, Belmac and Davur have entered into a Supply Agreement and a
License Agreement (together, the "Other Agreements"), of even date herewith,
whereby the parties thereto have established certain relationships related to
the license and marketing of various pharmaceutical products; and
WHEREAS, the parties hereto have agreed that Teva shall receive various
protections regarding its right to certain of the results of such collaboration,
as set forth in particularity herein;
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein and in the Other Agreements, the parties hereto have agreed as
follows:
1. Bentley represents and warrants that all issued and outstanding shares
of Belmac are held by Bentley and all issued and outstanding shares of Davur are
held by Belmac, except in both cases shares held by directors of each company.
2. Right of First Refusal. (a) Not later than two (2) months prior to any
proposed sale of direct or indirect ownership or control of substantially all of
the capital stock or assets of Davur, Belmac or Bentley shall notify Teva in
writing (the "Proposed Sale Notice") of its intention to effect such sale. The
Proposed Sale Notice shall include the identity of the proposed third party
purchaser and the third party offer price. If the third party purchaser and
Belmac or Bentley have entered into a confidentiality agreement with regard to
the proposed transaction, Teva shall agree to a substantially similar
confidentiality agreement prior to receiving the Proposed Sale Notice. Teva
shall thereupon have the option, exercisable in writing to the entity which
provided the Proposed Sale Notice (the "Exercise Notice") given within thirty
(30) days of receipt of the Proposed Sale Notice, to (i) cause Belmac to
transfer to Davur all of the rights, obligations, inventory, property rights,
intellectual property, dossiers, marketing authorisations, samples and other
materials, including without limitation brands, trademarks, customer lists,
received by Belmac directly or indirectly from Teva or produced and developed by
Belmac related to its performance or rights under the Other Agreements
(collectively, the "Teva Assets"); and (ii) upon such transfer, purchase
(directly or through its designee) all of the capital stock of Davur, free and
clear of all liens, claims and encumbrances, upon the terms set forth below. If
Teva does not deliver an Exercise Notice to Belmac within such 30-day period,
Belmac and Davur shall be free to proceed with the transaction specified in the
Proposed Sale Notice with the identified third party for a period of six (6)
months and Teva shall have no further rights under this Article 2 related to
such transaction. If the specified transaction does not
close with the third party within such six (6) month period, then all of Teva's
rights shall be reinstituted.
(b) Teva shall specify the offer price for the Davur shares in the Exercise
Notice which shall be an amount equal to the offer price of the third party in
the Proposed Sales Notice, less the value of all of Teva Assets and all of the
rights, obligations, inventory, property rights, intellectual property,
dossiers, marketing authorisations, samples and other materials, including
without limitation brands, trademarks, customer lists, received by Davur
directly or indirectly from Teva or produced and developed by Teva related to
its performance or rights under the Other Agreements (the "Additional Teva
Assets"). If such offer is acceptable to Belmac, then the purchase and sale of
the Davur shares shall take place within 10 business days following the date of
completion of transfer of all of the Teva Assets by Belmac to Davur pursuant to
Section 2(a)(i) of this Agreement and the execution of and satisfaction of all
conditions under a Purchase and Sale Agreement for the Davur shares in form and
substance reasonably satisfactory to Teva. If Belmac does not agree to the value
of the Teva Assets and Additional Teva Assets, then the parties hereto shall
request an independent auditor or appraiser (which does not perform regular
services for any of the parties hereto) to render an appraisal of the fair
market value of the Davur shares, less the value of the Teva Assets and
Additional Teva Assets, which appraisal shall be binding on the parties and
shall be and become the purchase price payable by Teva (or its designee) for all
of the Davur Shares. If the parties cannot agree on the identity of an auditor
or appraiser, Teva and Belmac's regular auditors shall jointly designate such an
auditor or appraiser. The fees and expenses of the auditor or appraiser shall be
borne by Belmac unless the price for the Davur shares established by the auditor
or appraiser is five percent or more higher (after deducting the value of the
Teva Assets and the Additional Teva Assets) than the purchase price set forth in
the Exercise Notice, whereupon such fees and expenses shall be borne by Teva.
3. Right of First Offer. (a) Not later than two (2) months prior to any
proposed sale of direct or indirect ownership or control of substantially all of
the capital stock or assets of Belmac, Bentley shall notify Teva in writing (the
"Proposed Belmac Sale Notice") of its intention to effect such sale. The
Proposed Belmac Sale Notice shall include the identity of the proposed third
party purchaser and the third party offer price. If the third party purchaser
and Belmac or Bentley have entered into a confidentiality agreement with regard
to the proposed transaction, Teva shall agree to a substantially similar
confidentiality agreement prior to receiving the Proposed Belmac Sale Notice.
Teva shall thereupon have the option, exercisable in writing to Bentley (the "
Belmac Exercise Notice") within thirty (30) days of receipt of the Proposed
Belmac Sale Notice, to (i) cause Belmac to transfer to Davur all of the Teva
Assets and (ii) upon such transfer, purchase (directly or through its designee)
all of the capital stock of Davur, free and clear of all liens, claims and
encumbrances, at a price equal to the fair market value of the Davur Shares less
the value of the Teva Assets and Additional Teva Assets and in accordance with
the procedures set forth in Section 2 (b) above. If the Parties are unable to
agree upon such purchase price then such purchase price shall be established in
accordance with the appraisal procedure set forth in Section 2 (b) above. If
Teva does not deliver a Belmac Exercise Notice to Bentley within the 30-day
period, Bentley shall be free to proceed with the transaction specified in the
Proposed Belmac Sale Notice for a period of four (4) months and Teva shall have
no further rights under this Section 3 (a) related to such transaction. If the
specified
transaction does not close with the third party within such four (4) month
period then all of Teva's rights under this Agreement shall be reinstituted.
(b) Without derogation to the rights granted to Teva pursuant to Section 3
(a) above, upon any offer by or to Bentley for the sale to or the purchase by an
unrelated third party of a controlling interest in Belmac or substantially all
of its assets, Bentley shall grant to Teva the same right to bid for and
purchase Belmac as any other third party, except that Teva (or its designee)
shall receive credit in its purchase price for the value of the Teva Assets. The
right in this paragraph shall be in addition to and not in substitution for the
rights of Teva under Article 3 of this Agreement.
4. Term. This agreement shall be effective as of the date hereof and shall
terminate upon the later of (i) five years from the date hereof; or (ii) the
termination of the License Agreement, dated the date hereof, among Teva, Belmac
and Davur, pursuant to its terms.
5. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of any successor or assign of the parties hereto.
6. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of New York, without regard to the
conflict of law provisions or any other law that would defer to the substantive
laws of another jurisdiction.
7. Partial Invalidity. The invalidity, illegality or unenforceability of
any term or provision herein shall not affect the validity, legality or
enforceability of any other term or provision, all of which shall be valid,
legal and enforceable to the fullest extent permitted by applicable law.
8. Notices. All notices shall be given as set forth in the Other
Agreements, provided that notices to Bentley shall be given in to the address
set forth in the Other Agreement for notices to Belmac.
9. Entire Agreement. This Agreement (together with the Other Agreements)
constitutes the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes any prior and/or
contemporaneous agreements or understandings with respect thereto (whether
written or oral), all of which are merged herein. This Agreement may not be
amended or modified except by an instrument in writing signed by the parties
hereto, and no term or provision hereof may be waived by any party except by an
instrument in writing signed by such party.
10. No rescission. Other than as stipulated expressly in this Agreement,
the parties hereto will not exercise rights to claim or incur rescission of this
Agreement.
[The next page is the signature page]
The parties have executed and delivered this Rights Agreement as of the
date first written above.
BENTLEY PHARMACEUTICALS, INC.
By:/s/ JAMES R. MURPHY
--------------------------------
Name: James R. Murphy
Title: Chairman and Chief Executive Officer
LABORATORIOS BELMAC, S.A.
By: /s/ JAMES R. MURPHY
--------------------------------
Name: James R. Murphy
Title: President
LABORATORIOS DAVUR, S.L.
By: /s/ JAMES R. MURPHY
--------------------------------
Name: James R. Murphy
Title: President
TEVA PHARMACEUTICAL INDUSTRIES LTD.
By:/s/ B. TH. VISSER
--------------------------------
Name: B. Th. Visser
Title: Vice President Europe
By:/s/ S.W. HU
--------------------------------
Name: S.W.Hu
Title: Legal Counsel Europe