1
EXHIBIT 10.93
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT") effective as of this 31st day of
JANUARY, 1999,
BETWEEN:
MEDICIS PHARMACEUTICAL CORPORATION a company incorporated under the
laws of Delaware and with its principal place of business at 4343 East Camelback
Road, Suite 250, Phoenix, Arizona, United States of America ("Medicis") and
BIOGLAN PHARMA PLC, a company incorporated under the laws of England
and Wales and with its principal place of business at 5 Hunting Gate, Hitchin,
Hertfordshire ("Bioglan").
1. RECITALS
1.1 Medicis is engaged in the sale of certain human,
over-the-counter and ethical pharmaceutical products including
the products set forth in Schedule 1 hereto ("the Products").
1.2 Medicis desires to sell to Bioglan and Bioglan, subject to
satisfactory due diligence, desires to purchase from Medicis
the Products and all rights associated therewith including the
relevant product trademarks, Know-How, authorizations and
permits as defined below (together referred to as the "Product
Rights") on the terms and conditions set out below.
NOW IT IS HEREBY AGREED as follows:
2. Definitions
In this Agreement the following terms shall have the following meanings:
"Know-How" means the information known to Medicis
relating solely and uniquely to the
formulae, manufacturing processes, customer
lists, marketing and advertising rights and
promotional materials, technology and
testing data relating to, the Products, as
identified on the Schedule of Know-How made
available during due diligence.
"Letter of Intent" means that certain letter of even date
herewith from Medicis to Bioglan and
countersigned by Bioglan.
"Product Licenses and means Medicis' authorizations, where such
Permits" are required, from the U.S. Food and Drug
Administration ("FDA") and the right to
refer to the data contained therein and
copies of all documents submitted and
correspondence between Medicis and the FDA
with respect to the Products
2
"Territory" means the United States of America and its
territories, possessions and commonwealth.
"Trademarks" means the trademarks listed in Schedule 3
hereto together with the goodwill symbolized
by such trademarks.
3. DUE DILIGENCE AND SALE OF PRODUCTS
3.1 Immediately following signature hereof Bioglan shall conduct a
due diligence investigation of the Products, which shall be
completed in time to close this transaction on the date set
out in subclause 5.1 hereof. Medicis shall cooperate with
Bioglan and provide answers to all reasonable enquiries as
fully and completely as it can and all reasonable assistance
to Bioglan, including providing Bioglan with access to
relevant Medicis facilities, personnel and documents and shall
permit Bioglan to obtain copies of relevant Medicis
documentation and contracts. Upon completing of due diligence,
Bioglan shall provide Medicis with written notice of its
acceptance or termination of this Agreement.
3.2 Provided that nothing is revealed during the due diligence
process which would result in Bioglan reasonably wishing to
terminate this Agreement and upon the basis of the
representations and warranties, and the terms and conditions
provided herein, Medicis agrees to sell and Bioglan agrees to
purchase the Products together with the Product Rights on the
terms set out below.
4. PURCHASE PRICE AND PAYMENT SCHEDULE
4.1 Bioglan shall pay to Medicis for the Products and the Product
Rights, a net consideration of Eleven Million One Hundred
Thousand Dollars US ($11,100,000 US), exclusive of any Value
Added Taxes (the "Purchase Price"). The Purchase Price shall
be paid to Medicis as follows:
4.1.1 an initial sum of Five Hundred Thousand dollars US
($500,000 US) paid to Medicis within twenty-four
hours of the execution of this Agreement; and
4.1.2 a further sum of Ten Million Six Hundred Thousand
Dollars US ($10,600,000 US) be paid to Medicis at the
Closing Date subject to satisfactory due diligence.
4.2 Upon payment by Bioglan to Medicis of the Purchase Price
provided for in sub-clause 4.1 hereof, Medicis shall execute
and deliver to Bioglan an assignment in the form of Exhibit
"A" hereto of the Trademarks and a Bill of Sale in the form of
Exhibit "B" to be attached hereto for the Products and Product
Rights.
4.3 Contemporaneously with the Closing (as defined below), Bioglan
and Medicis shall enter into a separate agreement pursuant to
which Bioglan will license to
3
Medicis use certain technologies in connection with Medicis'
products containing the active ingredient ciclopirox.
4.4 For the avoidance of doubt, if Bioglan terminates this
Agreement as a result of matters disclosed during the due
diligence process, (regardless of the nature of such matters)
or Medicis elects to unwind the transaction in accordance with
Clause 14.6 hereof, the initial sum payable pursuant to the
Clause 4.1.1 hereof shall NOT be refunded to Bioglan.
4.5 All payments made hereunder shall be made in United States
Dollars by telegraphic transfer in immediately available funds
to the Medicis bank account as previously provided to Bioglan.
5. CLOSING
5.1 Provided that nothing is revealed as a result of the due
diligence process that would result in Bioglan reasonably
wishing to terminate this Agreement, the consummation of the
transaction contemplated herein (the "Closing") shall take
place on February 15, 1999 ("Closing Date") at a time to be
mutually agreed to by the parties.
5.2 Except as otherwise provided for in this Agreement, after the
Closing Date, Medicis shall not use the Know-How. Furthermore,
after the Closing Date, Medicis shall not disclose the
Know-How to any third party, unless such disclosure is
required by law or regulation.
5.3 At the Closing, Medicis (a) shall deliver to Bioglan a Letter
of Disclosure as referenced in sub-clause 10.1 hereof, (b)
shall transfer to Bioglan ownership of the Product Rights, (c)
shall deliver to Bioglan such of the Product Rights which are
capable of delivery up to Bioglan, including but not limited
to, Medicis' customer lists for the Products, such marketing
and promotional materials for the Products, as may be
available, and (d) shall transfer to Bioglan possession of
Medicis' then-existing inventory of the Products, including
components thereof, ("Inventory") at cost, such Inventory
being in good condition and bearing a remaining shelf life of
not less than twelve (12) months. At the Closing, Bioglan
shall pay Medicis for the Inventory at Medicis' cost of the
Inventory.
5.4 Not withstanding anything in this Agreement to the contrary,
the sale to Bioglan by Medicis of the Products and Product
Rights shall not prevent Medicis from continuing to
manufacture and sell other products included or expected to be
included in its current line or to use other trademarks owned
by Medicis. Nor shall the sale restrict the rights of Medicis
to develop and sell new products using the same active
ingredients as the Products, but using different formulations,
or different presentations, and under different product
trademarks.
5.5 After the Closing, subject to the terms of the Transition
Services Agreement, Bioglan shall bear the entire
responsibility for and risk in the manufacture, distribution,
marketing and sale of the Products, including those associated
with
4
returns of Product previously sold, and compliance with all
regulations and laws pertaining to the Products. Medicis
shall, for one year following the Closing, use its reasonable
best efforts to assist Bioglan in these matters, but they
shall remain the sole responsibility of Bioglan.
6. CONDITIONS TO BIOGLAN'S OBLIGATIONS
6.1 Bioglan's obligation to consummate the transactions
contemplated herein at the Closing are subject to the
fulfillment at or prior to the Closing of each of the
following conditions, the fulfillment of any of which may be
waived by Bioglan:
6.1.1 The completion of the due diligence process to
Bioglan's reasonable satisfaction.
6.1.2 The completion by Medicis of all acts necessary to
authorize its execution, delivery and performance of
this Agreement and the other agreements provided for
herein, and the consummation of the transactions
contemplated herein and therein.
6.1.3 The provision by the Secretary of Medicis to Bioglan
of a Certificate setting forth copies of the
resolutions or other instruments authorizing this
Agreement and the transactions contemplated herein.
6.1.4 All the representations and warranties of Medicis
contained in this Agreement shall be true and correct
in all material respects as of the date of execution
of this Agreement by Medicis and all of the covenants
and agreements of Medicis which are provided in this
Agreement to be performed at or prior to the Closing
shall have been duly performed, and Medicis shall
have complied with this Agreement in all other
material respects. Medicis shall deliver to Bioglan a
certificate, dated the Closing Date, and signed by an
executive officer of Medicis, to the effect set forth
above.
6.1.5 Medicis shall have delivered to Bioglan a copy of any
FDA authorizations for the Products, where
applicable.
6.1.6 Medicis shall, at Bioglan's request, have assigned to
Bioglan the benefit of any agreements including, but
not limited to, manufacturing agreements for the
Products.
6.1.7 Medicis shall have obtained all consents, approvals
and authorizations necessary to consummate the
Closing.
6.1.8 Bioglan shall have approved any changes between the
unsigned draft Letter of Disclosure referred to in
Clause 10.1 thereof and the final version of that
Letter of Disclosure delivered at the Closing.
5
7. CONDITIONS TO MEDICIS' OBLIGATIONS
7.1 The obligations of Medicis to consummate the transactions
contemplated at the Closing are subject to the fulfillment at
or prior to the Closing of each of the following conditions,
the fulfillment of any of which may be waived by Medicis:
7.1.1 Medicis shall have been furnished with a certificate
of the Company Secretary of Bioglan setting forth
copies of the resolutions or other instruments
authorizing this Agreement and the transactions
contemplated herein.
7.1.2 All the representations and warranties of Bioglan
contained in this Agreement shall be true and correct
in all material respects as of the date of execution
of this Agreement by Bioglan and all of the
agreements of Bioglan which are provided in this
Agreement to be performed at or prior to the Closing
Date shall have been performed, and Bioglan shall
have complied with this Agreement in all other
material respects.
7.1.3 Bioglan shall deliver to Medicis a certificate, dated
the Closing Date and signed by an executive officer
of Bioglan, to the effect set forth above.
7.1.4 Payment in full by Bioglan of the Purchase Price and
all other sums required by this Agreement to be paid
by Bioglan to Medicis prior to the Closing Date.
7.1.5 Medicis shall have obtained all consents, approvals
and authorizations necessary to consummate the
Closing.
7.1.6 Bioglan shall have approved any changes between the
unsigned draft Letter of Disclosure referred to in
Clause 10.1 hereof and the final version of that
Letter of Disclosure delivered at the Closing.
8. CONTINUING OBLIGATIONS
8.1 Medicis' Continuing Obligations
8.1.1 In order to ensure continued supply of the Products
to customers following execution of this Agreement,
Medicis hereby agrees to act as distributor of the
Products for a period of four (4) months from the
execution of this Agreement, or until Bioglan gives
written notice to Medicis that Bioglan has developed
its own distribution network within the Territory,
whichever is the sooner. This period shall be
extended, at the written request of Bioglan, for a
further two (2) months if, after using its reasonable
best efforts, Bioglan has been unable to develop its
own distribution system at the end of the four month
period.
8.1.2 Bioglan and Medicis shall execute the Transition
Services Agreement attached as Exhibit "C" hereto
which sets out the terms on which Medicis shall
distribute the Products as required in sub-clause 8.1
above.
6
8.1.3 Upon expiration of the period for which Medicis shall
distribute Products on behalf of Bioglan as set out
above, Medicis shall return to Bioglan any inventory
of the Products in its possession as of the date
thereof.
8.2 Bioglan's Continuing Obligations
8.2.1 Bioglan shall provide to Medicis, on a quarterly
basis a written report setting forth Gross Sales and
Returns of all Products during calendar 1999.
9. PRODUCT REGISTRATIONS
9.1 After the Closing, Bioglan will initially market the Products
under the Product Licenses and Permits, such Product Licenses
and Permits having been varied to permit the same. Such
arrangement shall continue until Bioglan obtains regulatory
authorization from the FDA to market the Products under its
own product licenses (the "New Product Licenses and Permits").
9.2 To permit Bioglan to market the Products under the Product
Licenses and Permits, Medicis shall, promptly following
Closing hereof at its own expense, file all necessary
instruments with the FDA to obtain a waiver to vary Medicis'
Product Licenses and Permits to allow Bioglan to sell the
Products.
9.3 Bioglan shall at its expense, file a product license
application with the FDA for each of the Products that
requires FDA authorization. Medicis shall, at its expense,
file all necessary instruments with the FDA to authorize
Bioglan to cross-refer to the data contained in the Product
Licenses and Permits in order for Bioglan to obtain the New
Product Licenses and Permits.
9.4 Within thirty (30) days after the execution of this Agreement,
the parties shall each appoint a primary liaison (the "Medical
Affairs Liaison") to communicate with each other with regard
to the actions and information required pursuant to this
Clause 9.
9.5 During the period that Bioglan is selling Products under the
Product Licenses and Permits, each party shall advise the
other as set forth in 9.5.1 and 9.5.2 below of any adverse
drug experience associated with the Products. In addition,
Bioglan shall report all adverse drug experience information
it obtains, including that obtained from Medicis, to the FDA
as set forth in 9.6 below.
9.5.1 Any adverse drug experience information obtained by a
party shall be reported to Bioglan's Medical Affairs
Liaison, by telephone or in writing (only by
facsimile) within three (3) working days after the
first party's initial receipt of the information;
provided, however, any report of a serious unlabelled
side effect or any report of a death shall be
reported to Bioglan's Medical Affairs Liaison within
twenty-four (24) hours of receipt of the information;
and
7
9.5.2 The reports of adverse drug experience shall contain
the following information: (i) the date the report
was received by Medicis; (ii) the name of the
reporter; (iii) the address and telephone number of
the reporter; (iv) the patient details; (v) the
suspected drug; (vi) other concomitant therapy; (vii)
a description of the adverse drug experience; and
(viii) any additional relevant information; provided
such information is obtainable through the use of
reasonable efforts.
9.6 Bioglan shall report all adverse drug experience information
associated with the Products, including those received from
Medicis under this Clause 9 to the FDA, in accordance with the
laws and regulations of the Territory.
9.7 After execution of this Agreement, Bioglan shall take all
actions required by FDA regulations and other governmental
laws relating to the manufacture, distribution and use of the
Products and shall be solely responsible for compliance with
all such laws.
10. REPRESENTATIONS AND WARRANTIES OF MEDICIS
10.1 Except as set forth in a Letter of Disclosure which shall be
delivered by Medicis to Bioglan, as of the Closing Date (an
unsigned draft of which shall be delivered to Bioglan within
seven (7) days of the date hereof), Medicis hereby represents
and warrants to Bioglan as follows:
10.1.1 Medicis (i) is a corporation duly organized and
validly existing and in good standing under the laws
of Delaware and (ii) has all necessary corporate
power and authority to own its properties and to
conduct its business, as currently conducted.
10.1.2 The execution and delivery of this Agreement and the
other agreements provided for herein, and the
consummation of the transactions contemplated herein
and therein, are within the corporate power of
Medicis, have been or will be, on or prior to the
Closing Date, duly authorized by all necessary
corporate proceedings and such other agreements have
been or will be, on or prior to the Closing Date,
duly executed and delivered by Medicis.
10.1.3 Neither the execution of this Agreement and the other
agreements provided for herein nor the consummation
of the transactions contemplated herein and therein:
(i) requires Medicis to obtain any approval, consent
or withholding of objections on the part of any
regulatory or governmental body, except as may be
provided for above; (ii) will result in any violation
or breach of any term or provision of Medicis'
Certificate of Incorporation or Bylaws; (iii) will
constitute a default under any material indenture,
mortgage, deed of trust, license agreement or other
contract or agreement to which Medicis is a party or
to which it or any of the Products or Product Rights
may be subject; or
8
(iv) will violate any provision of any judicial,
governmental or administrative order, writ,
injunction, award, judgment or decree applicable to
Medicis.
10.1.4 This Agreement and the other agreements provided for
herein have been duly and validly authorized,
executed and delivered by Medicis and, when duly
executed and delivered by Bioglan, will constitute
valid and binding obligations of Medicis, enforceable
against Medicis in accordance with their terms,
except as such enforcement may be limited by
bankruptcy or other laws of general application
affecting creditor rights or general principles of
equity or principles of public policy relating to
indemnification.
10.1.5 Other than the use of Corporate Development
Specialists, Inc., neither Medicis nor any officer,
director or agent of Medicis has employed any broker,
finder, or agent with respect to this Agreement or
the transactions contemplated hereby.
10.1.6 Medicis will have used its best efforts to provide
Bioglan with true, complete and accurate information
in response to the due diligence requests of Bioglan
during the due diligence period.
10.1.7 The amount of Gross Sales, less returns, for the
calendar year ended December 31 1998, as accounted
for by Medicis in accordance with GAAP, which were
provided by Medicis to Bioglen during the due
diligence, were correct in all material respects.
10.1.8 EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES HEREIN
IN THE BILL OF SALE AND THE ASSIGNMENT OF TRADEMARKS,
THE PRODUCTS AND PRODUCT RIGHTS ARE SOLD ON AN "AS
IS, WHERE IS" BASIS, AND, OTHER THAN THOSE ARISING AS
A RESULT OF A BREACH OF THE REPRESENTATIONS AND
WARRANTIES HERETO AND THE BILL OF SALE, BIOGLAN
HEREBY WAIVES, ANY AND ALL OTHER REPRESENTATIONS,
WARRANTIES, DUTIES, AND GUARANTEES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, CONCERNING THE PRODUCTS OR THE PRODUCT
RIGHTS OR THE VALUE, CONDITION, EFFECTIVENESS OR
COMPLIANCE WITH SPECIFICATION OF THE PRODUCTS,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE, THE ABSENCE OF OBLIGATIONS BASED ON STRICT
LIABILITY IN TORT, OR THE QUALITY OF THE MATERIALS OR
WORKMANSHIP, AND BIOGLAN HEREBY WAIVES ANY AND ALL
RIGHTS AND REMEDIES IT MAY HAVE AGAINST MEDICIS
RELATING TO ANY OF THE FOREGOING AND ARISING BY LAW
OR OTHERWISE OR WITH RESPECT TO
9
LOSS OF USE, REVENUE OR PROFIT, THE EXISTENCE OF ANY
LATENT, INHERENT OR ANY OTHER DEFECT (WHETHER OR NOT
DISCOVERABLE), OR OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
11. INTELLECTUAL PROPERTY
11.1 Except as set forth in the Letter of Disclosure, Medicis hereby
represents and warrants to Bioglan in respect of the Intellectual
Property as follows:
11.1.1 The Trademarks are currently being used commercially
by Medicis and have been properly filed or registered
with the US Patent and Trademark Office and will be,
to the best of Medicis' knowledge, valid and in full
force and effect as of the date of execution of this
Agreement.
11.1.2 Except as may be restricted or prohibited by any
applicable law, rule, regulation or decision, Medicis
has the exclusive right to use, transfer and assign,
free and clear of any liens or encumbrances, the
registrations for the Trademarks set out in Schedule
"3" hereto.
11.1.3. To the best of Medicis' knowledge, the manufacture,
use or sale of the Products by Medicis or the use of
the Trademarks in the United States of America for
the sale of the Products does not infringe the rights
of any third party including inter alia intellectual
property rights.
11.1.4 Except for any restriction or prohibition set forth
in any applicable law, rule, regulation, decision or
other governmental action, Medicis is not aware of
any restriction or prohibition which would prevent or
restrict the disclosure of the Know-How to Bioglan
hereunder.
11.1.5 Medicis has informed Bioglan of adverse drug
experiences related to the Products of which it has
knowledge.
12. REPRESENTATIONS AND WARRANTIES OF BIOGLAN
12.1 Bioglan hereby represents and warrants to Medicis as follows:
12.1.1 Bioglan (i) is a public limited company duly
organized, validly existing and in good standing
under the Laws of England and Wales (ii) has all
necessary power and authority to own its properties
and to conduct business as presently conducted.
12.1.2 The execution and delivery of this Agreement and the
other agreements provided for herein, and the
consummation of the transactions contemplated herein
and therein, are within the corporate power of
Bioglan, have been or will be, on or prior to the
Closing Date, duly authorized by all necessary
corporate proceedings and such other
10
agreements have or will be, on or prior to the
Closing Date, duly executed and delivered to Bioglan.
12.1.3 Neither the execution of this Agreement and the other
agreements provided for herein nor the consummation
of the transactions contemplated herein and therein:
(i) require Bioglan to obtain the approval, consent
or withholding of objection on the part of any
governmental body, except as may be provided for
above; (ii) will result in any violation or breach of
any term or provisions of Bioglan's Memorandum and
Articles of Incorporation or By-Laws; (iii) will
constitute a default under any indenture, mortgage,
deed of trust, license, agreement, or other contract
or agreement to which Bioglan is a party or to which
it or any of its properties may be subject; or (iv)
violates any provision of any judicial, governmental
or administrative order, writ, injunction, award,
judgment or decree applicable to Bioglan.
12.1.4 This Agreement and the other agreements provided for
herein have been duly and validly authorized,
executed and delivered by Bioglan, and when duly
executed and delivered by Medicis, will constitute
valid and binding obligations of Bioglan, enforceable
against Bioglan in accordance with their terms,
except as such enforcement may be limited by
bankruptcy or other laws of general application
affecting creditor rights or general principles of
equity or principles of public policy relating to
indemnification.
12.1.5 Other than the use of Corporate Development
Specialists, Inc., neither Bioglan nor any officer,
director or agent of Bioglan, has employed any
broker, finder or agent with respect to this
Agreement or the transactions contemplated hereby.
12.1.6 OTHER THAN THE REPRESENTATIONS AND WARRANTIES OF
MEDICIS IN THIS AGREEMENT, BIOGLAN EXPRESSLY AGREES
AND ACKNOWLEDGES THAT IT HAS NOT, IN ENTERING INTO
THIS AGREEMENT, RELIED ON ANY CONDITION, WARRANTY OR
REPRESENTATION BY MEDICIS, EXPRESS OR IMPLIED,
WHETHER ARISING BY APPLICABLE LAW OR OTHERWISE IN
RELATION TO THE PRODUCTS AND PRODUCT RIGHTS,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OR
REPRESENTATIONS AS TO THE DESCRIPTION, QUALITY,
DURABILITY, MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, THE ABSENCE OF OBLIGATIONS BASED
ON STRICT LIABILITY IN TORT, THE QUALITY OF THE
MATERIALS OR WORKMANSHIP, VALUE, CONDITION, AS TO THE
ABSENCE OF ANY LATENT, INHERENT OR ANY OTHER DEFECT
(WHETHER OR NOT DISCOVERABLE), AND THE BENEFIT IN
FAVOR OF BIOGLAN, OF ANY SUCH CONDITION,
11
WARRANTY OR REPRESENTATION, IS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVED BY BIOGLAN.
13. CONDUCT AND TRANSACTIONS PRIOR TO CLOSING
13.1 The parties agree to cooperate mutually and make all
reasonable efforts toward consummating the transactions herein
contemplated and fulfilling the purposes of this Agreement
prior to and following Closing, including providing and
executing such additional documentation and communications as
may be appropriate for such purposes.
13.2 Medicis shall not take any action out of the ordinary course
of business to significantly increase sales of the Products in
the calendar month prior to the month in which the Closing
occurs. If the sales in the calendar month prior to the month
in which the Closing occurs are greater than 110% of the sales
of the Product in the preceding calendar month, Medicis shall
credit the Purchase Price for Medicis' gross margin on such
incremental sales.
14. POST-CLOSING COVENANTS
14.1 Medicis and Bioglan agree to cooperate in the notification to
customers of the transactions contemplated by this Agreement.
Neither Medicis nor Bioglan shall notify any customers of such
transactions without the consent of the other. Such
notification (the "Joint Notice") shall be in such form as is
reasonably satisfactory to Bioglan and Medicis.
14.2 Medicis agrees for a period of four (4) months after the
Closing Date to use its reasonable best efforts to forward to
Bioglan all customer orders for the Products received after
the Closing as soon as practicable after receipt by Medicis.
Medicis agrees that, for a period of six (6) months from the
Closing Date, it will inform any customers ordering the
Products or requesting information about the Products, that
Bioglan is now supplying the Products.
14.3 During the period that Bioglan is selling Products under the
Product Licenses and Permits if Medicis or an appropriate
government agency in the Territory determines that the
Products or any of them should be recalled, Bioglan shall at
its cost, be responsible for all activities to be performed
relating to such recall. If such recall occurs during such
period, then, prior to implementing such recall, Medicis shall
endeavor to advise Bioglan of the situation. Bioglan shall
provide Medicis with a prepared statement for use in response
to any inquiries regarding the Products' recall which Medicis
shall provide to its sales representatives. Medicis and its
sales representatives shall use such prepared statements to
respond to any inquiries received with regard to the Products
recalled and shall not make any other statements regarding the
recalls.
14.4 Medicis and Bioglan will coordinate to ensure that all
necessary and appropriate language is added to the labeling
for the Products so that each party is able to comply with any
applicable laws and regulatory requirements.
12
14.5 During the period that Bioglan is selling Products under the
Product Licenses and Permits, Bioglan shall not use any
promotional material with respect to the Products without
first obtaining the written approval of Medicis.
14.6 Simultaneously with the execution of this Agreement, Medicis
and Bioglan are entering into a Letter of Intent relating to
the license of rights to Medicis' products sold under its
Trademarks OCCLUSAL, SALAC and PENTRAX. If Bioglan fails to
execute, deliver and consummate the transaction contemplated
in the Letter of Intent, Medicis shall have the right, in its
sole discretion, to unwind the effect of this Agreement.
Medicis shall, in that event, repay to Bioglan the $10.6
million paid by Bioglan to Medicis under Sub-Clause 4.1.2
hereof and Bioglan shall immediately transfer all right, title
and interest in and to the Products and ownership of the
Product Rights to Medicis. Bioglan agrees to indemnify, defend
and hold harmless Medicis (and its directors, employees,
affiliates, successors and assigns) from and against all
Losses of Medicis based upon, arising out of or otherwise in
respect of Bioglan's actions or inactions relating to the
Products during the time period from the date of this
Agreement until the complete transfer of all Products and
Product Rights to Medicis.
15. INDEMNIFICATION BY MEDICIS
15.1 Medicis agrees to indemnify, defend and hold harmless Bioglan
(and its directors, officers, employees, affiliates,
successors and assigns) from and against all losses, personal
injuries, liabilities, damages (other than incidental or
consequential), deficiencies, costs or expenses including,
without limitation, interest, penalties and reasonable
attorneys' fees and disbursements ("Losses") of Bioglan based
upon, arising out of or otherwise in respect of:
15.1.1 any material inaccuracy in or material breach of, any
representation, warranty, covenant or agreement of
Medicis contained in this Agreement, provided
however, that any such Losses shall have been first
asserted in writing against Medicis within
twenty-four months after the Closing Date.
15.1.2 any harm to any third party caused by any defect in
the Products manufactured, mandated, distributed, or
sold by Medicis, prior to the Closing, or by any
negligent or wrongful act of Medicis prior to the
Closing in connection with the manufacture,
distribution, advertising, or sale of the Products,
or any failure to comply with any regulation or
statute, provided, however, that any such Losses
shall have been first asserted in writing against
Medicis within twenty-four months after the Closing
Date.
15.1.3 failure of Medicis prior to the Closing Date to
conduct its efforts under this Agreement at all times
in accordance with all applicable laws and
regulations which may materially affect the Products
including without limitation the US Foreign Corrupt
Practices Act, with the highest commercial standards
and in a manner that reflects favorably at all times
13
on the Products and the reputation of Medicis,
provided, however, that any such Losses shall have
been first asserted in writing against Medicis within
twenty-four months after the Closing Date.
16. INDEMNIFICATION BY BIOGLAN
16.1 Bioglan agrees to indemnify, defend and hold harmless Medicis
(and its directors, officers, employees, affiliates,
successors and assigns) from and against all Loss of Medicis
based upon, arising out of or otherwise in respect of:
16.1.1 any material inaccuracy in or material breach of any
representation, warranty, covenant or agreement of
Bioglan contained in this Agreement, provided
however, that any such Loss shall have been first
asserted in writing against Bioglan within
twenty-four months after the Closing Date.
16.1.2 any harm to any third party caused by any defect in
the d Products manufactured, mandated, or distributed
sold by Bioglan or by any negligent or wrongful act
of Bioglan in connection with the manufacture,
distribution, advertising, or sale of the Products,
or any failure to comply with any regulation or
statute.
16.1.3 failure of Bioglan to conduct its efforts under this
Agreement at all times in strict accordance with all
applicable laws and regulations which may materially
affect the Products including without limitation the
US Foreign Corrupt Practices Act, with the highest
commercial standards and in a manner that reflects
favorably at all times on the Products and the
reputation of Medicis.
17. PROCEDURE FOR INDEMNIFICATION
17.1 If any legal proceeding shall be instituted, or any claim or
demand made, against an indemnified party in respect of which
an indemnifying party may be liable hereunder, or if either
party hereto for any reason shall believe that it has a claim
against the other pursuant to the respective Clause 15 or 16
hereof, then the indemnified party or the party believing it
has a claim against the other, as the case may be (in either
case, the "Indemnified Party"), shall give prompt written
notice hereunder to the indemnifying party or the party
against whom the party giving notice believes it has a claim,
as the case may be (in either case, the "Indemnifying Party").
Such notice shall specify in reasonable detail the date such
underlying claim or belief first was asserted or arose, the
nature of the loss (es) for which payment is claimed, the
Clause or Clauses of this Agreement upon which such claim is
based, and the amount payable in respect thereto, and shall
provide a copy of the underlying claim.
17.2 If an Indemnifying Party shall receive notice pursuant to this
Clause 17, the Indemnifying Party may, at its sole option,
elect to defend against the loss, which
14
is the subject of such notice. If the Indemnifying Party
elects to defend, then the Indemnified Party shall have the
right to participate in such defense, trial counsel shall be
chosen by the Indemnifying Party and such trial counsel shall
be reasonably satisfactory to the Indemnified Party. If the
Indemnifying Party does not elect to defend, then the
Indemnified Party may do so by its own counsel, such counsel
shall be reasonably satisfactory to the Indemnifying Party,
the costs of which shall be borne by the Indemnifying Party,
and the Indemnifying Party agrees to cooperate with the
Indemnified Party in such defense.
17.3 If the amount of any actual loss indemnified against hereunder
shall at any time subsequent to the payment of any indemnity
payable hereunder, be reduced by any recovery, settlement or
other payment, then the amount of such reduction, less any
expense incurred by the party receiving such recovery,
settlement or other payment in connection therewith, shall be
repaid promptly to the Indemnifying Party.
17.4 Except as otherwise provided herein, the terms of this Clause
17 shall survive the Closing.
18. GENERAL PROVISION
18.1 All representations, warranties, covenants and agreements set
forth herein shall survive the execution and delivery of this
Agreement and the transfer of Product Rights hereunder, but
shall expire two (2) years after the Closing. Thereafter, no
claim for breach of any representation, warranty, covenant, or
agreement shall be made. If this Agreement is terminated
pursuant to Clause 18.12 hereof, neither Bioglan nor Medicis
shall be under any liability whatsoever with respect to any
such representation or warranty.
18.2 All communications under this Agreement attached hereto shall
be in writing and shall either be faxed, sent by courier or
mailed by first class mail, postage prepaid, to the fax number
and/or address specified below. If faxed, such communication
shall be deemed to given when sent; provided, however, that
such fax shall be confirmed by sending a hard copy by courier
or first class mail (by methods specified herein) within one
(1) working day of the sending of such fax. If sent by courier
or mailed by first class mail as specified herein, such
communication shall be deemed to be given either two (2)
business days after sending (for communications sent by
courier) or ten (10) business days after mailing (for
communications sent by mail). All communications hereunder
shall be sent:
18.2.1 TO BIOGLAN: at its address shown below or such other
address as it may give to Bioglan by notice
hereunder:
5 Hunting Gate and to:
Hitchin, Hertfordshire Roiter Zucker Solicitors
England Regent House
Attn: Terry I. Sadler Swiss Cottage
15
London NW 3RZ ENGLAND
Attention: Warren Roiter
18.2.2 TO MEDICIS, at its address shown below or such other
address as it may give to Medicis by notice
hereunder:
4343 East Camelback Road, Suite 250
Phoenix, Arizona 85018-2100 USA
Attn: Jonah Shacknai
18.3 Prior to the Closing, Bioglan and Medicis shall each hold in
confidence all documents and information received by it in
connection with the transactions contemplated by this
Agreement and, in the event that for any reason the
transactions contemplated by this Agreement shall not be
consummated, Bioglan and Medicis shall refrain from disclosing
or otherwise using such documents and information.
18.4 This Agreement may be amended, modified or supplemented only
by written agreement of the parties hereto.
18.5 The rights and obligations of Bioglan and Medicis under this
Agreement and the agreements provided for herein shall be
binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but may
not be assigned by either party without the prior written
consent of the other party; provided however, Bioglan may
assign this Agreement without obtaining Medicis' consent if
Bioglan has paid the entire Purchase Price to Medicis in
accordance with Clause 4. Nothing set forth herein shall
prevent either party from assigning its rights or obligations
hereunder to an Affiliate of said party provided that no such
assignment shall relieve said party of its obligations
hereunder. For purposes hereof, an "Affiliate" of a party
shall refer to any person or entity controlling, controlled by
or under common control with said party.
18.6 Bioglan and Medicis agree to approve jointly the text of an
initial press release announcing the consummation of the
transactions contemplated hereby and not to use the name of
the other party in any press information, marketing or
advertising materials or other release to the public without
prior written approval of the other, which approval shall not
be unreasonably withheld. The foregoing shall not be deemed to
prevent either party from making any public announcement which
may be required by legislation or any governmental or
regulatory body or by the rules and regulations of any
national securities exchange upon which the securities of
either party are traded; provided that the disclosing party
has notified the non-disclosing party of such public
announcement and the non-disclosing party has been given an
opportunity to comment on such announcement. The disclosing
party shall make such changes as reasonably requested.
16
18.7 Except as otherwise provided herein, Bioglan and Medicis agree
that each of the parties hereto shall bear one half of the
legal costs incurred in connection with the preparation,
drafting, execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby, but not
the cost of Bioglan's due diligence in this transaction.
Bioglan shall pay all recording fees and all taxes due by
Bioglan in connection with the transfer of the Product Rights
to Bioglan hereunder.
18.8 All headings in this Agreement are for convenience only and
shall not affect the interpretation or meaning of any
provision hereof.
18.9 This Agreement, together with the other agreements provided
for herein, and the Schedules and Exhibits attached hereto,
constitutes the entire agreement of the parties, merges all
prior negotiations, agreements and understandings, and states
in full all representations and warranties or warranties other
than those herein stated. To the extent there are any
inconsistencies between the provisions of this Agreement, the
Schedules and Exhibits and any of the other agreements
provided for herein, this Agreement shall govern.
18.10 No delay on the part of any party in exercising any right,
power, or privilege hereunder shall operate as a waiver
thereof; nor shall any waiver on the part of any party of any
such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such
right, power or privilege. The rights and remedies of any
party based on, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty,
covenant or agreement contained in this Agreement shall in no
way be limited by the fact that the act, omission, occurrence
or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject matter
of any other representation, warranty, covenant or agreement
contained in this Agreement (or in any other agreement between
the parties) as to which there is no inaccuracy or breach.
18.11 If any provision of this Agreement is found or declared to be
invalid or unenforceable by any court or other competent
authority having jurisdiction, such finding or declaration
shall not invalidate any other provision hereof, and this
Agreement shall thereafter continue in full force and effect
except that such invalid or unenforceable provision, and (if
necessary) other provisions thereof, shall be reformed by a
court of competent jurisdiction so as to effect, insofar as is
practicable, the intention of the parties as set forth in this
Agreement, provided that if such court is unable or unwilling
to affect such reformation, the invalid or unenforceable
provision shall be deemed deleted to the same extent as if it
had never existed.
18.12 In the event any of the conditions specified in Clause 6 or
Clause 7 of this Agreement shall not be fulfilled on or before
the Closing Date, then Bioglan, with respect to the conditions
in Clause 6, or Medicis, with respect to the conditions in
Clause 7, shall have the right either to proceed or, upon
prompt written notice to
17
the other, terminate and rescind this Agreement without
liability to any party. In no circumstances, however, shall
Bioglan be entitled to recover the $500,000 US paid under
subclause 4.1.1 hereof. The election to proceed shall not
affect the right of such electing party to require the other
party to use commercially reasonable efforts to fulfill such
conditions.
18.13 This Agreement shall be governed by the substantive laws of
the State of Arizona, United States of America (without regard
to principles of conflict of laws) as to all matters,
including but not limited to matters of validity,
construction, effect, performance and remedies.
18.14 Bioglan consents and submits to the personal jurisdiction of
the state and federal courts in Arizona.
18.15 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. ARBITRATION
19.1 The parties shall promptly submit to arbitration any dispute
which may arise in connection with this Agreement that is not
promptly resolved by them, except that each party may seek
injunctive relief for breaches of this Agreement if either
party makes a good faith determination that a breach of the
terms of this Agreement by the other party will result in
irreparable harm and that injunctive relief is the only
adequate remedy.
19.2 The American Arbitration Association shall have jurisdiction
over the arbitration, which shall be conducted in accordance
with the Commercial Arbitration Rules of such Association,
except as modified by agreement of the parties.
19.3 In the event a dispute is to be submitted to arbitration
pursuant to this Article X, the parties agree that the dispute
shall be resolved by a private arbitration conducted by one
arbitrator. Within ten (10) days after the submission of such
dispute to arbitration, the parties shall agree upon one
arbitrator, selected from a panel of five individuals, none of
whom is an officer, director or employee of a party or an
affiliate of such party, or a person who has a direct or
indirect personal or financial interest in the outcome of the
arbitration, designated by the American Arbitration Associated
from its permanent panel of commercial arbitrators. The
parties shall select the arbitrator by alternately striking
names of the individuals so designated until only one name
remains. A coin toss will determine which party is to strike
the first name.
19.4 The arbitrator shall set a hearing date for an arbitration
(the "Hearing") within ninety (90) days from the date the
arbitrator is selected, unless otherwise agreed by the
parties. At least fifteen (15) days before the Hearing, each
party shall submit to the arbitrator a list of all witnesses
and exhibits, which it intends to present at the Hearing. No
later than ten (10) days before the Hearing, each party shall
provide to the arbitrator a short (not to exceed five
single-spaced pages or such other page limit as the arbitrator
permits) statement of its position with regard to the dispute.
Notwithstanding the Commercial
18
Arbitration Rules, each party shall have the right to conduct
up to a total of two depositions. At the Hearing, each party
shall, unless it waives the opportunity, make an oral opening
statement and an oral closing statement. The arbitrator shall
not be strictly bound by rules of procedure or rules of
evidence, but shall use the Federal Rules of Evidence as a
guideline in conducting the Hearing. When testimony is
complete and each party has introduced its exhibits pursuant
to the provisions of this Agreement, and each party has made a
closing statement pursuant to the provisions of this Agreement
or waived the opportunity to do so, the arbitrator shall
declare the Hearing closed; provided that the parties may
submit post-hearing briefs pursuant to an agreed upon schedule
or a schedule formulated by the arbitrator. The Hearing shall
be conducted in private. Attendance at the Hearing shall be
limited to the following: (i) the arbitrator; (ii)
representatives of each party; (iii) each party's attorneys
and attorney's assistants or advisors, if any, including
expert witnesses if any; (iv) a court reporter if requested by
either party; and (v) any witnesses. The arbitrator may
sequester witnesses upon the motion of a party. Within thirty
(30) days of the close of the Hearing or submission of the
post-hearing briefs, the arbitrator shall issue a written
opinion and an award (the "Award") based on evidence,
arguments and post-hearing briefs, if any. The Award shall be
a decision of the arbitrator, shall resolve the parties'
dispute and shall be final and binding on the parties. Except
as otherwise provided in this Agreement, there shall be no ex
parte communication regarding the subject matter of the
Hearing, in which event the arbitrator will render and deliver
to the parties a written opinion and Award within thirty (30)
days of being notified that the parties waive the Hearing.
Notwithstanding any other provision of this Agreement, the
arbitrator shall have no power to delete from, add to or
modify the terms of this Agreement, and may not award any
remedy which effectively conflicts directly or indirectly with
any provision of this Agreement.
19.5 In any arbitration, all of the reasonable costs and expenses
of the Successful Party (including reasonable attorney's fees
and expenses), all fees and expenses of experts retained by
the Successful party and all costs of the arbitrator shall be
borne the Losing Party in such arbitration. The "Losing Party"
and the "Successful party" shall be determined by the
arbitrator based on the relative success or failure of each
party to such arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for Purchase
and Sale of Assets as of the date first set forth above.
MEDICIS PHARMACEUTICAL CORPORATION
by: /s/ Mark A. Prygocki, Sr.
---------------------------------------
its: Chief Financial Officer
---------------------------------------
BIOGLAN PHARMA PLC
19
by: /s/ Terry I. Sadler
---------------------------------------
its: Chairman and Chief Executive Officer
---------------------------------------
20
SCHEDULE "1"
PRODUCTS
1. BENZASHAVE shaving cream
2. THERAMYCIN Z skin lotion
3. PRAMEGEL topical medication
4. A-FIRM vitamin-A cream
5. A-FIL sunburn protection
6. BETALIFTX skin peel preparation
7. METED hair shampoo
8. TEXACORT dermatosis preparation
9. PACKER'S pine tar soap
A total of nine (9) products.
21
SCHEDULE "2"
KNOW-HOW
[TO BE SUPPLIED]
22
SCHEDULE "3"
-----------------------------------------------------------------------------------------------------
NO. TRADEMARK REG. NO. & DATE GOODS
-----------------------------------------------------------------------------------------------------
1 BENZASHAVE 1,612,636 brushless, medicated
shaving cream
9/11/1990
-----------------------------------------------------------------------------------------------------
2 THERAMYCIN Z 2,129,191 dermatologic products,
namely, therapeutic skin
1/13/1998 lotion
-----------------------------------------------------------------------------------------------------
3 PRAMEGEL 1,391,339 anti-pruritic topical
medication
4/29/1986
-----------------------------------------------------------------------------------------------------
4 AFIRM 2,197,069 dermatological preparation,
namely, a vitamin-A cream
10/20/1998
-----------------------------------------------------------------------------------------------------
5 A-FIL (Stylized) 532,880 vanishing cream type
preparation for use as a
10/31/1950 protection against sunburn
-----------------------------------------------------------------------------------------------------
6 BETA-LIFTX 2,137,236 pharmaceutical preparation,
namely, a chemical skin
B-LIFTX Design 2,125,549 peel preparation
-----------------------------------------------------------------------------------------------------
7 METED 1,419,732 medicated hair shampoo
12/9/1986
-----------------------------------------------------------------------------------------------------
8 TEXACORT 1,304,643 preparations for the
treatment of dermatosis
11/13/1984
-----------------------------------------------------------------------------------------------------
9 PACKER'S PINE TAR SOAP & 407,047 soap
Design
910,485 hair shampooing preparation
PACKER'S & Design
-----------------------------------------------------------------------------------------------------
23
SCHEDULE "A"
-------------------------------------------------------------------------------------------------------
TRADEMARK REG. NO. & DATE GOODS
-------------------------------------------------------------------------------------------------------
BENZASHAVE 1,612,636 brushless, medicated shaving
9/11/1990 cream
-------------------------------------------------------------------------------------------------------
THERAMYCIN Z 2,129,191 dermatologic products,
1/13/1998 namely, therapeutic skin
lotion
-------------------------------------------------------------------------------------------------------
PRAMEGEL 1,391,339 anti-pruritic topical
4/29/1986 medication
-------------------------------------------------------------------------------------------------------
AFIRM 2,197,069 dermatological preparation,
10/20/1998 namely, a vitamin-A cream
-------------------------------------------------------------------------------------------------------
A-FIL (Stylized) 532,880 vanishing cream type
10/31/1950 preparation for use as a
protection against sunburn
-------------------------------------------------------------------------------------------------------
BETA-LIFTX 2,137,236 pharmaceutical preparation,
2/17/1998 namely, a chemical skin peel
preparation
-------------------------------------------------------------------------------------------------------
B-LIFTX Design 2,125,549 pharmaceutical preparation,
12/30/1997 namely, a chemical skin peel
preparation
-------------------------------------------------------------------------------------------------------
METED 1,419,732 medicated hair shampoo
12/9/1986
-------------------------------------------------------------------------------------------------------
TEXACORT 1,304,643 preparations for the
11/13/1984 treatment of dermatosis
-------------------------------------------------------------------------------------------------------
PACKER'S PINE TAR SOAP & Design 407,047 soap
5/16/1944
-------------------------------------------------------------------------------------------------------
PACKER'S & Design 910,485 hair shampooing preparation
3/23/1971
-------------------------------------------------------------------------------------------------------
24
TRANSITION SERVICES AGREEMENT
EXHIBIT "C"