EXHIBIT 10.12(c)
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
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Name: James R. Murphy
Title: Chairman and Chief Executive Officer
LABORATORIOS BELMAC, S.A.
By: /s/ JAMES R. MURPHY
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Name: James R. Murphy
Title: President
LABORATORIOS DAVUR, S.L.
By: /s/ JAMES R. MURPHY
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Name: James R. Murphy
Title: President
TEVA PHARMACEUTICAL INDUSTRIES LTD.
By:/s/ B. TH. VISSER
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Name: B. Th. Visser
Title: Vice President Europe
By:/s/ S.W. HU
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Name: S.W.Hu
Title: Legal Counsel Europe