EXECUTION COPY
EXHIBIT 4.32
PURCHASE AND SALE AGREEMENT
(FEMHRT)
AMONG
PFIZER INC.,
▇▇▇▇▇ (CHEMICALS) LIMITED
AND
▇▇▇▇▇ HOLDINGS PLC
DATED AS OF MARCH 5, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND TERMS............................................................ 1
Section 1.1 Definitions............................................................. 1
Section 1.2 Other Definitional Provisions........................................... 8
ARTICLE II PURCHASE AND SALE................................................................ 9
Section 2.1 Purchase and Sale of the Purchased Assets............................... 9
Section 2.2 Consents................................................................ 10
Section 2.3 Excluded Assets......................................................... 10
Section 2.4 Assumption of Certain Liabilities....................................... 10
Section 2.5 Retained Liabilities.................................................... 11
Section 2.6 Purchase Price; Additional Purchase Payments............................ 13
Section 2.7 Allocation of the Purchase Price........................................ 15
Section 2.8 Risk of Loss............................................................ 15
Section 2.9 Adjustment of the Purchase Price........................................ 15
ARTICLE III CLOSING.......................................................................... 16
Section 3.1 Closing................................................................. 16
ARTICLE IV CONDITIONS TO CLOSING............................................................ 16
Section 4.1 Conditions to the Obligations of Purchaser and Pfizer................... 16
Section 4.2 Conditions to the Obligations of Purchaser.............................. 17
Section 4.3 Conditions to the Obligations of Pfizer................................. 17
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PFIZER......................................... 18
Section 5.1 Organization............................................................ 18
Section 5.2 Authority; Binding Effect............................................... 18
Section 5.3 Non-Contravention....................................................... 19
Section 5.4 Governmental Consents................................................... 19
Section 5.5 No Litigation........................................................... 19
Section 5.6 Compliance with Laws.................................................... 20
Section 5.7 Product Registrations................................................... 20
Section 5.8 Material Contracts...................................................... 20
Section 5.9 Intellectual Property; Know-how......................................... 21
Section 5.10 Assets.................................................................. 22
Section 5.11 Brokers................................................................. 22
Section 5.12 Statements of Net Sales and Product Contribution........................ 22
Section 5.13 Medical Information..................................................... 23
Section 5.14 Domain Names and Websites............................................... 23
Section 5.15 Inventory............................................................... 23
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT........................... 23
Section 6.1 Organization and Qualification.......................................... 23
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TABLE OF CONTENTS
(CONTINUED)
Section 6.2 Corporate Authorization................................................. 23
Section 6.3 Binding Effect.......................................................... 24
Section 6.4 Non-Contravention....................................................... 24
Section 6.5 Governmental Consents................................................... 24
Section 6.6 Financial Resources..................................................... 25
Section 6.7 Condition of the Purchased Assets....................................... 25
Section 6.8 Brokers................................................................. 25
Section 6.9 Voting Requirement...................................................... 25
ARTICLE VII COVENANTS........................................................................ 26
Section 7.1 Information and Documents............................................... 26
Section 7.2 Interim Operations Relating to the Products............................. 26
Section 7.3 Reasonable Best Efforts; Certain Governmental Matters................... 27
Section 7.4 Transitional Services Agreement......................................... 28
Section 7.5 Transitional Intellectual Property License Agreement.................... 29
Section 7.6 Litigation Support...................................................... 29
Section 7.7 Certain Employee Arrangements........................................... 29
Section 7.8 Notifications........................................................... 30
Section 7.9 Post-Closing Cooperation................................................ 30
Section 7.10 Confidentiality......................................................... 31
Section 7.11 Parent Shareholder Approval............................................. 31
Section 7.12 Transfer of Regulatory Approvals........................................ 32
Section 7.13 Certain Patents......................................................... 33
ARTICLE VIII INDEMNIFICATION.................................................................. 33
Section 8.1 Indemnification by Pfizer............................................... 33
Section 8.2 Indemnification by Parent............................................... 34
Section 8.3 Notice of Claims........................................................ 34
Section 8.4 Third Party Claims...................................................... 34
Section 8.5 Expiration.............................................................. 35
Section 8.6 Certain Limitations..................................................... 35
Section 8.7 Losses Net of Insurance, Etc............................................ 35
Section 8.8 Sole Remedy/Waiver...................................................... 36
Section 8.9 No Consequential Damages................................................ 36
ARTICLE IX TERMINATION...................................................................... 36
Section 9.1 Termination............................................................. 36
Section 9.2 Effect of Termination................................................... 37
ARTICLE X MISCELLANEOUS.................................................................... 39
Section 10.1 Notices................................................................. 39
Section 10.2 Amendment; Waiver....................................................... 40
Section 10.3 Assignment.............................................................. 40
Section 10.4 Entire Agreement........................................................ 40
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TABLE OF CONTENTS
(CONTINUED)
Section 10.5 Fulfillment of Obligations.............................................. 41
Section 10.6 Parties in Interest..................................................... 41
Section 10.7 Public Disclosure....................................................... 41
Section 10.8 Return of Information................................................... 41
Section 10.9 Expenses................................................................ 41
Section 10.10 Schedules............................................................... 41
Section 10.11 Governing Law; Jurisdiction............................................. 42
Section 10.12 Counterparts............................................................ 42
Section 10.13 Headings................................................................ 42
Section 10.14 Severability............................................................ 42
Section 10.15 Guarantee of Parent..................................................... 43
Section 10.16 Unwind.................................................................. 43
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TABLE OF CONTENTS
(CONTINUED)
LIST OF SCHEDULES
A Certain Trademarks
B Product in Development
1.1(A) Asset Selling Corporations
1.1(B) Historic Gross Profit Percentage
1.1(C) Knowledge of Pfizer
2.1(a)(i) Patents
2.1(a)(iii) Assumed Contracts
2.1(a)(ix) Domain Names and Websites
2.1(a)(x) Governmental Authorizations
2.9 Months of Supply
2.9(b) Adjustment of the Purchase Price
5.5 No Litigation
5.6 Compliance with Laws
5.7 Product Registrations
5.8(a) Material Contracts
5.8(c) Managed Care Agreements
5.9(b) Intellectual Property
5.9(c) Infringement
5.10 Assets
5.12 Statements of Net Sales and Product Contribution
5.15 Inventory
7.2 Interim Operations
LIST OF EXHIBITS
A. List of instruments and documents to be provided by Pfizer to Purchaser
B. List of instruments and documents to be provided by Purchaser to Pfizer
C. Form of Transitional Services Agreement (FEMHRT)
D. Form of Transitional Intellectual Property License Agreement (FEMHRT)
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PURCHASE AND SALE AGREEMENT (FEMHRT)
This Purchase and Sale Agreement (FEMHRT) (this "AGREEMENT")
is made and entered into as of this 5th day of March, 2003 among Pfizer Inc., a
Delaware corporation ("PFIZER"), ▇▇▇▇▇ (Chemicals) Limited, an Irish corporation
("PURCHASER"), and ▇▇▇▇▇ Holdings plc, a public limited company organized under
the Laws of Northern Ireland ("PARENT").
W I T N E S S E T H:
WHEREAS, Pfizer, through certain of its Subsidiaries, is
engaged in selling, promoting and marketing a hormone replacement therapy
product under the femhrt(R) trademark set forth on Schedule A (the "PRODUCT");
WHEREAS, the Asset Selling Corporations own the Purchased
Assets; and
WHEREAS, the parties hereto desire that, at the Closing,
Pfizer shall cause the Asset Selling Corporations to sell and transfer to
Purchaser, and Purchaser shall purchase from the Asset Selling Corporations, all
of the Purchased Assets and assume all of the Assumed Liabilities, upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the meanings set forth or as referenced below:
"ACCESS PERIOD" shall have the meaning set forth in Section
7.7(a).
"ADDITIONAL PAYMENTS" shall have the meaning set forth in
Section 2.6(b)(i).
"ADJUSTED PURCHASE PRICE" shall have the meaning set forth in
Section 2.9(d).
"AFFILIATE" shall mean, with respect to any Person, any other
Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person at any
time during the period for which the determination of affiliation is being made.
"AGREEMENT" shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the terms hereof.
"ALLOCATION" shall have the meaning set forth in Section 2.7.
"ANCILLARY AGREEMENTS" shall mean the Transitional
Intellectual Property License Agreement and the Transitional Services Agreement.
"ANDA" shall mean an Abbreviated New Drug Application
submitted to the FDA for approval of a generic drug product.
"APPLICABLE AVERAGE DAILY SALES" shall mean (a) the aggregate
dollar amount of gross sales of the Product for the period from and including
February 1, 2003 to and including the Closing Date divided by (b) the number of
days in such period.
"ASSET SELLING CORPORATIONS" shall mean the Persons set forth
on Schedule 1.1(A).
"ASSUMED CONTRACTS" shall have the meaning set forth in
Section 2.1(a)(iii).
"ASSUMED LIABILITIES" shall have the meaning set forth in
Section 2.4.
"▇▇▇▇" shall have the meaning set forth in Section 2.6(b)(ii).
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a day on which banks in New York, New York, United States of America
are authorized or obligated by Law or executive order to close.
"CALCULATION DATE" shall have the meaning set forth in Section
2.9(a).
"CLOSING" shall mean the closing of the transactions
contemplated by this Agreement pursuant to the terms of this Agreement.
"CLOSING DATE" shall have the meaning set forth in Section
3.1(a).
"COLLATERAL SOURCE" shall have the meaning set forth in
Section 8.7.
"COMPETING DRUG" shall have the meaning set forth in Section
2.6(b)(i).
"COMPETITION LAWS" shall mean statutes, rules, regulations,
orders, decrees, administrative and judicial doctrines and other Laws that are
designed or intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization, lessening of competition or restraint of
trade.
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"CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality
Agreement, dated as of August 13, 2002, between Pfizer and Parent relating to
certain products, including the Product.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 7.10(a).
"DAILY SALES ADJUSTMENT AMOUNT" shall have the meaning set
forth in Section 2.9(c).
"DURAMED" shall mean Duramed Pharmaceuticals, Inc., an Ohio
corporation.
"EXCLUDED ASSETS" shall have the meaning set forth in Section
2.3.
"EXCLUSIVITY PERIOD" shall have the meaning set forth in
Section 2.6(b)(i).
"FDA" shall mean the United States Food and Drug
Administration.
"FDCA" shall mean the Federal Food, Drug and Cosmetic Act of
1938, as amended.
"FEMHRT EMPLOYEES" shall mean employees of Pfizer or any of
its Affiliates who, within the 18 month period immediately prior to the Closing
Date, participated (through the dedication of a significant portion of their
working time) in the manufacture, marketing and sale, regulatory or litigation
support of the Product.
"FTC" shall mean the United States Federal Trade Commission.
"FTC CONSENT ORDER" shall mean the agreement containing
consent orders to be entered into by Pfizer, Pharmacia Corporation and counsel
for the FTC relating to the merger contemplated by the Merger Agreement.
"GOVERNMENTAL ANTITRUST ENTITY" shall have the meaning set
forth in Section 7.3(c).
"GOVERNMENTAL AUTHORITY" shall mean any supranational,
national, federal, state or local judicial, legislative, executive or regulatory
authority.
"GOVERNMENTAL AUTHORIZATIONS" shall mean all INDs, NDAs,
licenses, permits, certificates and other authorizations and approvals required
to carry on the sale and marketing of the Product as conducted as of the date of
this Agreement under the applicable Laws of any Governmental Authority.
"GOVERNMENTAL ORDER" shall mean any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
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"HISTORIC AVERAGE DAILY SALES" shall mean $197,021.
"HISTORIC GROSS PROFIT PERCENTAGE" shall mean the historic
gross profit percentage for the Product as set forth on Schedule 1.1(B).
"IMS" shall have the meaning set forth in Section 2.9(a).
"IND" shall mean an Investigational New Drug exemption filed
with the FDA relating solely to the Products.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 8.3.
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 8.3.
"INTELLECTUAL PROPERTY" shall mean the copyrights, Patents,
trademarks, service marks, trade names, trade dress, labels, logos and all other
names and slogans, whether or not registered, and any other applications and
registrations therefor, in each case relating solely to the Product.
"INVENTORIES" shall mean all inventory of finished goods
relating solely to the Product.
"KNOW-HOW" shall mean all ideas, inventions, data,
instructions, secrets, processes, master batch records, drug master files,
formulas, formulation information, validations, validation protocols, package
specifications, chemical specifications, chemical and finished goods analytical
test methods, stability data, testing data, product specifications, information
with respect to expert opinion and information (whether or not patented or
patentable) and technology owned, licensed or controlled by any of the Asset
Selling Corporations or under which any of the Asset Selling Corporations has
the right to grant sublicenses, as of the date of this Agreement, all of the
foregoing only to the extent relating solely to the Product, including all
biological, chemical, pharmacological, toxicological, pharmaceutical, physical
and analytical, clinical, safety, manufacturing and quality control data and
information related thereto and all correspondence with the FDA or other similar
Governmental Authority and all other documents pertaining to communications with
the FDA or other similar Governmental Authority (including minutes of any FDA
communications and applications for any regulatory approval of the Product, if
any).
"KNOWLEDGE OF PFIZER" shall mean the actual knowledge of any
of the individuals set forth on Schedule 1.1(B).
"LATE PAYMENT ADJUSTMENT" shall mean an amount equal to the
sum of (a)(i) $4,000,000 multiplied by (ii) the number of full months elapsed
between April 1, 2003 and the Closing Date plus (b)(i) $4,000,000 multiplied by
(ii) a fraction, the numerator of which is the number of days elapsed from and
including the first day of the
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month in which the Closing occurs to and including the Closing Date and the
denominator of which is 30.
"LAUNCH DATE" shall have the meaning set forth in Section
2.6(b)(i).
"LAW" shall mean any federal, state, foreign or local law,
common law, statute, ordinance, rule, regulation, code or Governmental Order.
"LIABILITIES" shall mean any debts, liabilities or
obligations, whether accrued or fixed, known or unknown, absolute or contingent,
matured or unmatured or determined or determinable.
"LIEN" shall mean any lien, security interest, mortgage,
charge or similar encumbrance.
"LOSS" or "LOSSES" shall have the meaning set forth in Section
8.1(a).
"MANAGED CARE AGREEMENTS" shall have the meaning set forth in
Section 5.8(c).
"MANUFACTURING AGREEMENT" shall mean that certain
Manufacturing Agreement, dated as of September 24, 1997, between Duramed and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as amended.
"MATERIAL ADVERSE EFFECT" shall mean any change or effect that
is, or is reasonably likely to be, materially adverse to the Product or the
assets, revenues or profits relating to the Product or the manufacture,
distribution or sale of the Product, other than any change, effect, event,
circumstance or occurrence relating to (a) the economy or financial markets in
general, (b) conditions affecting the industry in which the Product participates
generally, provided that the Product is not materially disproportionately
affected as compared to other Persons engaged in such industry by such change,
effect, event, circumstance or occurrence, (c) the transactions contemplated by
this Agreement, (d) actions required to be taken by applicable Law, (e) acts of
terrorism or war (whether or not threatened, pending or declared), (f) the
public announcement of this Agreement or the transactions contemplated hereby,
(g) the declining sales of the Product due to competition, (h) the lack of
marketing of the Product and (i) the refusal of Parent to provide its consent
under Section 7.2 if Parent acted unreasonably in withholding its consent.
"MATERIAL CONTRACTS" shall have the meaning set forth in
Section 5.8(b).
"MERGER AGREEMENT" shall mean that certain Agreement and Plan
of Merger, dated as of July 13, 2002, among Pfizer, Pilsner Acquisition Sub
Corp. and Pharmacia Corporation.
"MONTHS OF SUPPLY" shall have the meaning set forth in Section
2.9(a).
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"NDA" shall mean a New Drug Application filed with the FDA
relating solely to the Product requesting permission to place a drug on the
market in accordance with 21 C.F.R. Part 314 and all supplements filed pursuant
to the requirements of the FDA, including all documents, data and other
information concerning the Product that are necessary for FDA approval to market
the Product in the United States of America.
"PARENT" shall have the meaning set forth in the preamble to
this Agreement.
"PARENT ADVERSE RECOMMENDATION CHANGE" shall have the meaning
set forth in Section 7.11(a).
"PARENT CIRCULAR" shall have the meaning set forth in Section
7.11(b)(i).
"PARENT REIMBURSABLE FEES" shall have the meaning set forth in
Section 9.2(d).
"PARENT SHAREHOLDER APPROVAL" shall have the meaning set forth
in Section 6.9.
"PATENTS" shall mean all patents and patent applications and
all additions, divisions, continuations, continuations-in-part, substitutions,
reissues, extensions, registrations and renewals of any of the foregoing.
"PERMITTED ENCUMBRANCES" shall mean (a) all Liens approved in
writing by Purchaser; (b) statutory Liens arising out of operation of Law with
respect to a Liability incurred in the ordinary course of the sale and marketing
of the Product and that are not delinquent, including mechanics', materialmens',
carriers', workmens', warehousemens', repairmens', landlords' or other like
Liens and security obligations; (c) such Liens and other imperfections of title
as do not materially detract from the value or impair the use of the property
subject thereto or make such property unmarketable or (d) Liens for Taxes that
are not yet delinquent or that are being actively contested in good faith by
appropriate proceedings.
"PERSON" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture, Governmental
Authority or other entity or organization.
"PFIZER" shall have the meaning set forth in the preamble to
this Agreement.
"PFIZER REIMBURSABLE FEES" shall have the meaning set forth in
Section 9.2(c).
"PROCEEDING" shall have the meaning set forth in Section
10.11(b).
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"PRODUCT CLAIM" shall mean a claim from a third party for
money or other compensation (beyond the cost of a particular Product) in respect
of potential or actual injury or harm allegedly due and owing as a result of the
use, application or defect of the Product or labeling of the Product, in each
case irrespective of the legal theory of liability.
"PRODUCT REGISTRATIONS" shall have the meaning set forth in
Section 5.7(a).
"PRODUCT" shall have the meaning set forth in the recitals to
this Agreement.
"PURCHASED ASSETS" shall have the meaning set forth in Section
2.1(a), it being understood that the Purchased Assets do not include the
Excluded Assets.
"PURCHASE PRICE" shall have the meaning set forth in Section
2.6(a).
"PURCHASER" shall have the meaning set forth in the preamble
to this Agreement.
"PURCHASER MATERIAL ADVERSE EFFECT" shall have the meaning set
forth in Section 6.4.
"REBATES" shall mean all rebates to all United States federal
and state rebate programs and local governmental programs and to pharmacy
benefit management companies, health plans, insurance companies, mail service
pharmacies and other health care providers based upon the utilization of the
Product. For purposes of this Agreement, a Rebate in respect of the Product
shall be deemed to have occurred in the calendar quarter in which the pharmacy
or other applicable entity dispensed the Product to the end-user.
"RETAINED LIABILITIES" shall have the meaning set forth in
Section 2.5.
"SELLER CORPORATIONS" shall mean Pfizer and the Asset Selling
Corporations.
"SHAREHOLDERS' MEETING" shall have the meaning set forth in
Section 7.11(b)(ii).
"SHIPPED PRODUCTS" shall have the meaning set forth in Section
2.5(a).
"STATEMENTS OF NET SALES AND PRODUCT CONTRIBUTION" shall have
the meaning set forth in Section 5.12.
"SUBSIDIARY" shall mean any Person as to which Pfizer,
Purchaser, Parent or any other relevant Person, as the case may be, owns
directly or indirectly 50% or more of the voting power or other similar
interests.
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"SUPPLY NOTICE" shall have the meaning set forth in Section
2.9(a).
"TAXES" shall mean any and all taxes, levies or other like
assessments, including income, transfer, gains, gross receipts, excise, property
(real, personal or intangible), sales, use, withholding, payroll, employment,
capital stock and franchise taxes, imposed by a Governmental Authority.
"TERMINATION DATE" shall have the meaning set forth in Section
9.1(b).
"TERMINATION FEE" shall have the meaning set forth in Section
9.2(b).
"THIRD PARTY CLAIM" shall have the meaning set forth in
Section 8.4(a).
"TRANSITIONAL INTELLECTUAL PROPERTY LICENSE AGREEMENT" shall
have the meaning set forth in Section 7.5.
"TRANSITIONAL SERVICES AGREEMENT" shall have the meaning set
forth in Section 7.4.
"UKLA" shall have the meaning set forth in Section 7.11(b)(i).
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company LLC, a
Delaware limited liability company.
"WITHDRAWAL DATE" shall have the meaning set forth in Section
2.6(b)(iii).
Section 1.2 Other Definitional Provisions.
(a) The words "HEREOF", "HEREIN", "HERETO" and
"HEREUNDER" and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
(b) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms.
(c) The terms "DOLLARS" and "$" shall mean United States
dollars.
(d) The term "INCLUDING" shall mean "INCLUDING, WITHOUT
LIMITATION".
(e) When a reference is made in this Agreement to an
Article, a Section, Exhibit or Schedule, such reference shall be to an Article
of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
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ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Purchased Assets.
(a) Upon the terms and subject to the conditions set
forth herein, at the Closing, Pfizer shall cause the Asset Selling Corporations
to sell, convey, assign and transfer to Purchaser, and Purchaser shall purchase,
acquire and accept from the Asset Selling Corporations, free and clear of all
Liens, other than Permitted Encumbrances, all of the Asset Selling Corporations'
right, title and interest in the following assets, properties and rights owned
or held by the Asset Selling Corporations on the Closing Date (collectively, the
"PURCHASED ASSETS"):
(i) all the Intellectual Property, including (A) the
Patents set forth on Schedule 2.1(a)(i) and (B) the trademarks, trade
names and service marks set forth on Schedule A, together with the
goodwill associated therewith;
(ii) all Know-how (including all clinical data relating to
the Product);
(iii) subject to Section 2.2, all contracts, licenses,
agreements and commitments set forth on Schedule 2.1(a)(iii) (the
"ASSUMED CONTRACTS");
(iv) all Inventories;
(v) all customer and vendor lists relating to the
Product, provided that any information set forth in such lists that
does not relate to the Product will be redacted from such lists;
(vi) to the extent permitted by Law, all books and records
(including regulatory files) relating solely to the Product; provided,
however, that Pfizer may retain a copy of any such books and records to
the extent necessary for Tax, accounting, litigation or other valid
business purposes;
(vii) all rights under or pursuant to all representations,
warranties and guarantees or otherwise against manufacturers to the
extent (A) relating solely to the Product or the Purchased Assets and
(B) transferable;
(viii) all advertising, marketing, sales, product
literature, promotional materials and data and all training materials
in whatever medium (e.g., audio, visual, print or electronic), in each
case relating solely to the Product;
(ix) all domain names and websites set forth on Schedule
2.1(a)(ix); and
(x) all Governmental Authorizations set forth on Schedule
2.1(a)(x) to the extent transferable.
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(b) Pfizer or an Affiliate of Pfizer, as the case may be,
shall retain the right and title in and to any intellectual property or
know-how, as the case may be, that is not Intellectual Property or Know-how, as
the case may be, utilized in connection with the manufacturing, packaging,
testing, development, distribution, marketing, use or sale of any products of
Pfizer or an Affiliate of Pfizer, as the case may be, other than the Product,
and Purchaser shall be granted by Pfizer or an Affiliate of Pfizer, as the case
may be, a non-exclusive, perpetual, royalty-free, worldwide license to use such
intellectual property or know-how, as the case may be, solely with respect to
the Product or any line extensions of the Product.
Section 2.2 Consents.
(a) There shall be excluded from the transactions
contemplated by this Agreement any agreement, license or right which is not
assignable or transferable without the consent of any Person, other than Pfizer
or any of its Affiliates or Purchaser or any of its Affiliates, to the extent
that such consent shall not have been obtained prior to the Closing; provided,
however, that each of Pfizer and Purchaser shall have the continuing obligation
after the Closing to use its commercially reasonable efforts to endeavor to
obtain all necessary consents to the assignment thereof (provided that neither
Pfizer, Purchaser nor any of their respective Affiliates shall be required to
expend money, commence any litigation or offer or grant any accommodation
(financial or otherwise) to any third party) and, upon obtaining the requisite
third party consents thereto, such agreement, license or right, if otherwise
includable in the Purchased Assets, shall be transferred and assigned to
Purchaser hereunder.
(b) With respect to any agreement, license or right that
is not included in the Purchased Assets or assigned to Purchaser at the Closing
by reason of Section 2.2(a), after the Closing and until any requisite consent
is obtained and the foregoing sold and assigned to Purchaser, the parties hereto
shall cooperate with each other, upon written request, in endeavoring to obtain
for Purchaser, at no incremental cost to Pfizer or any of its Affiliates, to the
extent practicable, an arrangement which Purchaser reasonably shall desire
designed to provide for Purchaser the same net benefits thereof in some other
manner.
Section 2.3 Excluded Assets. Notwithstanding any provision in
this Agreement, Purchaser is not purchasing any of the following (the "EXCLUDED
ASSETS"):
(a) the corporate books and records of the Asset Selling
Corporations and the general account and books of original entry that comprise
the Asset Selling Corporations' permanent accounting or tax records; and
(b) the "Pfizer", "▇▇▇▇▇-▇▇▇▇▇" and "▇▇▇▇▇▇ ▇▇▇▇▇▇▇"
names and logos.
Section 2.4 Assumption of Certain Liabilities. Upon the terms
and subject to the conditions of this Agreement, Purchaser agrees, effective at
the Closing,
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except as set forth in Section 2.5, to assume all the following Liabilities of
the Seller Corporations (collectively, the "ASSUMED LIABILITIES"):
(a) all Liabilities arising out of or relating to any
Product Claim made after the Closing that results from the use or misuse of any
Product shipped to a third party prior to or after the Closing;
(b) all Liabilities for lawsuits commenced prior to or
after the Closing to the extent relating to the Intellectual Property, including
the litigation matter set forth as item 1 on Schedule 5.5;
(c) all Liabilities to customers under purchase orders
made in the ordinary course of the sale and marketing of the Product consistent
with past practice for any Product that has not yet been shipped at the Closing;
(d) all Liabilities arising after the Closing under any
contracts, agreements, licenses or commitments that are assigned to Purchaser
pursuant to Section 2.1 or 2.2(a) at or after the Closing;
(e) all Liabilities arising out of or relating to (i) the
return of any Product after the Closing, (ii) any chargebacks relating to any
Product claimed to be due and owing after the Closing and (iii) any Rebates
occurring in the calendar quarters subsequent to the first full calendar quarter
after the Closing and the related reporting activities;
(f) all Liabilities for Taxes relating solely to the
Product with respect to the period on or after the Closing; and
(g) all other Liabilities relating solely to the Product
to the extent relating to any period on or after the Closing.
Section 2.5 Retained Liabilities. Notwithstanding any
provision in this Agreement to the contrary, Pfizer shall, or shall cause one of
the Asset Selling Corporations to, retain and be responsible for the following
(the "RETAINED LIABILITIES"):
(a) all Liabilities arising out of or relating to any
Product Claim pending as of the Closing that resulted from the use or misuse of
any Product manufactured by or on behalf of Pfizer or one of the Asset Selling
Corporations and shipped to a third party prior to the Closing (the "SHIPPED
PRODUCTS");
(b) all Liabilities arising out of or relating to (i) the
return after the Closing of any Shipped Products which returns are a result of
adulteration or misbranding (within the meaning of the FDCA or the rules and
regulations of the FDA promulgated thereunder) by Pfizer or one of the Asset
Selling Corporations, (ii) the return during the six month period after the
Closing of any Shipped Product that either has (A) expired, provided that
neither Pfizer nor any of its Affiliates shall be responsible for any such
11
Shipped Product having an expiration date greater than one year prior to the
date of return or (B) not expired, provided that neither Pfizer nor any of its
Affiliates shall be responsible for any such Shipped Product with an expiration
date greater than six months after the date of return (with all such returns for
which Pfizer has responsibility to be shipped at Pfizer's expense to Pfizer's
designated returned goods processing facility), (iii) any chargebacks relating
to any Shipped Products and (iv) any Rebates occurring until the expiration of
the first full calendar quarter after the Closing and the related reporting
activities;
(c) all Liabilities for Taxes relating to the Product
with respect to the period prior to the Closing;
(d) all Liabilities relating to employees of Pfizer or
any of its Affiliates;
(e) all Liabilities for which Pfizer expressly has
responsibility pursuant to the terms of this Agreement;
(f) all Liabilities relating to the Excluded Assets;
(g) all Liabilities arising out of or relating to the
matter set forth as item 3 on Schedule 5.9(b);
(h) all Liabilities arising out of the loan guarantee
entered into by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection with the Manufacturing Agreement;
(i) all Liabilities, including Liabilities to Duramed, to
suppliers for raw materials, intermediates, packaging and other supplies and
services to the extent relating to the manufacture of the Product for any period
prior to the Closing; and
(j) all other Liabilities relating to the Product to the
extent relating to any period prior to the Closing.
Purchaser and Pfizer agree to reimburse one another, dollar for dollar, in the
event that (i) any of their or their respective Affiliate's customers offset,
against accounts payable by such customer to Pfizer or Purchaser or their
respective Affiliates, the cost of any Product returned by such customer or (ii)
Purchaser, Pfizer or any of their respective Affiliates are required to issue a
credit for the account of any customer for returns, in each case which are the
responsibility of the other party hereto pursuant to Sections 2.4(e) and 2.5(b).
Pfizer and Purchaser agree to, and to cause their respective Affiliates to,
provide notice to one another of any such offset or issuance of credit for which
such party or its Affiliate is entitled to be reimbursed pursuant to this
provision. Payment shall be made promptly following receipt of notice of any
such offset by or issuance of a credit to a customer (together with supporting
documentation). Pfizer and Purchaser shall, and Pfizer and Purchaser shall cause
their respective Affiliates to cooperate to, ensure that a customer
12
does not offset returns of any Product against both Pfizer (or any of its
Affiliates) and Purchaser (or any of its Affiliates).
Section 2.6 Purchase Price; Additional Purchase Payments.
(a) Purchase Price. In consideration of the sale and
transfer of the Purchased Assets, Purchaser agrees to purchase from each of the
Asset Selling Corporations the Purchased Assets owned by such Asset Selling
Corporation for an aggregate amount equal to $162,000,000 (One Hundred and
Sixty-Two Million Dollars) (as it may be adjusted by the immediately following
proviso, the "PURCHASE PRICE"), provided that if (i) the Closing does not occur
on or before April 1, 2003 solely due to the failure of the condition to Closing
set forth in Section 4.1(b) and (ii) such failure was not caused by any action
taken by Purchaser and/or Parent, then the Purchase Price shall be an amount
equal to the difference of (A) $162,000,000 and (B) the Late Payment Adjustment.
The Purchase Price shall be allocated among each of the Asset Selling
Corporations as described in Section 2.7 and subject to adjustment as described
in Section 2.9.
(b) Additional Purchase Payments.
(i) Subject to the limitations set forth in the next
sentence, as further consideration of the sale and transfer of the
Purchased Assets, for the period commencing on the first day of the
second calendar quarter of 2004 and ending on the expiration of the
first calendar quarter of 2010 (the "EXCLUSIVITY PERIOD"), Purchaser
shall pay to Pfizer, as agent for the Asset Selling Corporations (or to
Pfizer's Affiliates as Pfizer may designate on behalf of the Asset
Selling Corporations), on the last Business Day of each calendar
quarter of the Exclusivity Period, $2,900,000 (the "ADDITIONAL
PAYMENTS") (for an aggregate total payment of $69,600,000 for the
entire Exclusivity Period), by wire transfer in immediately available
funds to one or more accounts specified in writing by Pfizer at least
two Business Days prior to the last Business Day of such calendar
quarter. Notwithstanding the foregoing, but subject to Section
2.6(b)(iii), Purchaser's obligation to make the Additional Payments
shall terminate on the first date (the "LAUNCH DATE") of commercial
sales to unaffiliated third parties by any Person (other than Purchaser
or any of its Affiliates) of a generic drug that is AB rated to the
Product (a "COMPETING DRUG"); provided, however, that if the Launch
Date occurs during the Exclusivity Period, within two Business Days
after the Launch Date, Purchaser shall pay to Pfizer, as agent for the
Asset Selling Corporations (or to Pfizer's Affiliates as Pfizer may
designate on behalf of the Asset Selling Corporations), by wire
transfer in immediately available funds to one or more accounts
specified in writing by Pfizer, an amount equal to the product (rounded
up to the nearest whole cent) of (i) $2,900,000 and (ii) a fraction,
(A) the numerator of which is equal to the number of days elapsed since
the first day of the calendar quarter in which the Launch Date occurs
and the Launch Date (including such first day, but excluding the Launch
Date) and (B) the denominator of which is equal to 90.
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(ii) In the event that (A) Purchaser settles the
litigation matter set forth as item 1 on Schedule 5.5 and such
settlement permits, or does not prohibit, commercial sales to
unaffiliated third parties by ▇▇▇▇ Laboratories, Inc. ("▇▇▇▇") or any
of its Affiliates of a Competing Drug and (B) ▇▇▇▇ or any of its
Affiliates commences such commercial sales, (I) Purchaser's obligation
to make the Additional Payments will terminate in accordance with the
last sentence of Section 2.6(b)(i) and (II) for a period of ten days
thereafter, Purchaser and Pfizer shall negotiate in good faith whether
or not Purchaser shall provide to Pfizer (as agent on behalf of the
Asset Selling Corporations) further consideration for the sale and
transfer of the Purchased Assets, in lieu of the continuation of the
Additional Payments and, if so, the amount of such consideration and
such terms and conditions as may be reasonably acceptable to Purchaser
and Pfizer. If, by the end of such ten day period, Purchaser and Pfizer
are unable to reach an agreement on whether and how much further
consideration shall be paid and the terms and conditions thereof,
Purchaser and Pfizer shall refer such matter to an independent third
party valuation specialist (such as a reputable investment bank)
mutually acceptable to Purchaser and Pfizer. Such valuation specialist
shall make a determination with respect to whether and how much further
consideration shall be paid and the terms and conditions thereof within
15 days after its engagement by Purchaser and Pfizer. In making such
determination, such valuation specialist shall consider the value to
Pfizer of the remaining Additional Payments that it would have
otherwise likely received in the absence of the settlement, the terms
of Purchaser's settlement and such other matters as the parties and
such valuation specialist deem relevant. Such determination shall be
delivered in writing to Purchaser and Pfizer within such 15 day period
and shall be final and binding on, and nonappealable by, Purchaser and
Pfizer. Purchaser and Pfizer shall each pay one-half the costs incurred
in connection with the engagement of such valuation specialist.
(iii) If (A) a Competing Drug (other than a Competing Drug
commercially sold to unaffiliated third parties by ▇▇▇▇ or any of its
Affiliates as permitted, or not prohibited, by any settlement of the
litigation matter set forth as item 1 on Schedule 5.5) is withdrawn
from the market in the United States (the date of such withdrawal, the
"WITHDRAWAL DATE") and (B) the Exclusivity Period has not expired,
Purchaser shall resume payment of the Additional Payments commencing on
the last Business Day of the calendar quarter following the first full
calendar quarter after the Withdrawal Date occurs until the expiration
of the Exclusivity Period in accordance with the first sentence of
Section 2.6(b)(i). All other Additional Payments made pursuant to this
Section 2.6(b)(iii) shall be made in accordance with the first sentence
of Section 2.6(b)(i) (excluding the parenthetical relating to the
aggregate total payment), unless Purchaser's obligation to make such
Additional Payments is terminated pursuant to and in accordance with
the last sentence of Section 2.6(b)(i); it being understood that the
date of re-commencement of commercial sales to unaffiliated third
parties of a withdrawn Competing Drug shall be deemed to be a "Launch
Date" for purposes
14
of Section 2.6(b)(i). For the avoidance of doubt, this Section
2.6(b)(iii) shall in no way affect the rights and obligations of the
parties under Section 2.6(b)(ii), including the respective rights and
obligations of the parties upon a withdrawal from the market in the
United States of a Competing Drug commercially sold to unaffiliated
third parties by ▇▇▇▇ or any of its Affiliates as permitted, or not
prohibited, by any settlement of the litigation matter set forth as
item 1 on Schedule 5.5.
Section 2.7 Allocation of the Purchase Price. The parties
shall negotiate in good faith and agree upon an allocation of the Purchase Price
(a) among each of the Asset Selling Corporations and (b) between tangible and
intangible Purchased Assets (collectively, the "ALLOCATION"). Pfizer and
Purchaser agree not to take a position on any income tax return, before any
Governmental Authority or in any judicial proceeding that is inconsistent with
the Allocation. The Additional Payments shall be allocated in the same manner as
the Purchase Price.
Section 2.8 Risk of Loss. Until the Closing, any loss of or
damage to the Purchased Assets from fire, casualty or any other occurrence shall
be the sole responsibility of Pfizer or its Affiliates, as the case may be. At
the Closing, title to the Purchased Assets shall be transferred to Purchaser,
and Purchaser shall thereafter bear all risks of loss associated with the
Purchased Assets.
Section 2.9 Adjustment of the Purchase Price.
(a) Promptly after the execution of this Agreement,
Pfizer shall engage IMS Health Incorporated ("IMS") to determine the Months of
Supply of the Product that was held by Pfizer's or its Affiliates' wholesale and
chain customers, as of January 31, 2003 (the "CALCULATION DATE"). Pfizer and
Purchaser shall each pay one-half of all the costs incurred in connection with
the engagement of IMS. "MONTHS OF SUPPLY" shall be determined as set forth on
Schedule 2.9. Pfizer shall request that IMS deliver to each of Pfizer and
Purchaser, within 30 days of the Closing Date, a notice (the "SUPPLY NOTICE")
setting forth the Months of Supply as of the Calculation Date for the Product.
The determination of IMS of Months of Supply as set forth on the Supply Notice
shall be final, conclusive and binding on the parties hereto.
(b) The Purchase Price shall be adjusted in accordance
with the formula set forth on Schedule 2.9(b).
(c) In addition, if the Applicable Average Daily Sales
exceeds the Historic Average Daily Sales, the Purchase Price shall be reduced by
an amount equal to such excess multiplied by the Historic Gross Profit
Percentage multiplied by the number of days in the period from February 1, 2003
to and including the Closing Date (the "DAILY SALES ADJUSTMENT AMOUNT"). As
promptly as practicable after the Closing, Pfizer shall deliver a certificate to
Purchaser setting forth in reasonable detail the Applicable Average Daily Sales
and the Daily Sales Adjustment Amount, if any, calculated pursuant to this
Section 2.9(c). If any adjustment to the Purchase Price is
15
required pursuant to this Section 2.9(c) as set forth in such certificate
delivered by Pfizer, Pfizer shall pay to Purchaser the Daily Sales Adjustment
Amount by wire transfer in immediately available funds to an account specified
in writing by Purchaser within five Business Days after delivery of such
certificate.
(d) The Purchase Price as it may be adjusted pursuant to
Sections 2.9(b) and (c) shall be referred to herein as the "ADJUSTED PURCHASE
PRICE".
ARTICLE III
CLOSING
Section 3.1 Closing.
(a) The Closing shall take place at the offices of Weil,
Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America at 10:00 A.M., New York time, on the second Business Day following the
satisfaction or waiver of the conditions precedent specified in Article IV
(other than the conditions to be satisfied on the Closing Date, but subject to
the waiver or satisfaction of such conditions), or at such other time and place
as the parties hereto may mutually agree; provided, however, that without the
agreement of Pfizer, Purchaser and Parent, the Closing shall not occur later
than the applicable date specified in Section 9.1(b). The date on which the
Closing occurs is called the "CLOSING DATE". The Closing shall be deemed to
occur and be effective as of the close of business on the Closing Date.
(b) At the Closing, Pfizer shall deliver, or cause to be
delivered, to Purchaser the instruments and documents set forth in Exhibit A, in
each case in a form reasonably acceptable to Purchaser.
(c) At the Closing, Purchaser shall deliver, or cause to
be delivered, to Pfizer the following: (i) the Purchase Price, by wire transfer
in immediately available funds to one or more accounts specified in writing by
Pfizer at least two Business Days prior to the Closing Date, and (ii) the
instruments and documents set forth in Exhibit B, in each case in a form
reasonably acceptable to Pfizer.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1 Conditions to the Obligations of Purchaser and
Pfizer. The respective obligations of each of the parties to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
of the following conditions precedent:
(a) there shall not (i) be in effect in any Law or
Governmental Order that makes illegal or enjoins or prevents in any respect the
consummation of the
16
transactions contemplated by this Agreement or (ii) have been commenced, and
shall be continuing or threatened in writing, any action or proceeding by any
Governmental Authority that seeks to prevent or enjoin in any respect the
transactions contemplated by this Agreement;
(b) the FTC Consent Order (i) shall have been fully
executed by the parties thereto, (ii) shall permit the transactions contemplated
by this Agreement and the Ancillary Agreements and (iii) shall have been
accepted by the FTC and placed on the public record for the receipt and
consideration of public comments; and
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Duramed each shall have duly
executed and delivered to Purchaser an instrument, in form and substance
reasonably satisfactory to Purchaser and Pfizer, pursuant to which Duramed shall
have consented to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ assignment to Purchaser of its rights and
obligations under the Manufacturing Agreement as part of the transactions
contemplated hereby.
Section 4.2 Conditions to the Obligations of Purchaser. The
obligations of Purchaser and Parent to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction of the following
conditions precedent:
(a) Pfizer shall have performed in all material respects
its agreements and obligations contained in this Agreement required to be
performed by it at or before the Closing;
(b) the representations and warranties of Pfizer
contained in this Agreement (i) that are qualified as to materiality or by
reference to Material Adverse Effect shall be true and correct and (ii) that are
not so qualified shall be true and correct in all materials respects, in each
case as of the date of this Agreement and as of the Closing Date, except to the
extent such representations and warranties expressly relate to a particular date
(in which case, on and as of such particular date);
(c) Pfizer shall have made, or caused to be made,
delivery to the Purchaser of the items required by Section 3.1(b);
(d) Pfizer shall have consented to Purchaser's engagement
of Fitzpatrick, Cella, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ as patent counsel for the litigation
matter set forth as item 1 on Schedule 5.5 and waived any conflict of interests
in relation thereto;
(e) the Parent Shareholder Approval shall have been
obtained; and
(f) since the date of this Agreement, there shall not
have been a Material Adverse Effect.
Section 4.3 Conditions to the Obligations of Pfizer. The
obligation of Pfizer to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction of the following conditions
precedent:
17
(a) each of Purchaser and Parent shall have performed in
all material respects its agreements and obligations contained in this Agreement
required to be performed by it at or before the Closing;
(b) the representations and warranties of each of Parent
and Purchaser contained in this Agreement (i) that are qualified as to
materiality or by reference to Purchaser Material Adverse Effect shall be true
and correct and (ii) that are not so qualified shall be true and correct in all
materials respects, in each case as of the date of this Agreement and as of the
Closing Date, except to the extent such representations and warranties expressly
relate to a particular date (in which case, on and as of such particular date);
and
(c) Purchaser shall have made, or caused to be made,
delivery to Pfizer of the items required by Section 3.1(c).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PFIZER
Pfizer hereby represents and warrants to Purchaser and Parent
as follows:
Section 5.1 Organization. Pfizer is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Each of the Asset Selling Corporations is a corporation duly
organized, validly existing and, where applicable, in good standing under the
Laws of the jurisdiction of its organization.
Section 5.2 Authority; Binding Effect.
(a) Pfizer has all requisite corporate power and
authority to carry on its business as it is now being conducted and to execute
and deliver this Agreement and the Ancillary Agreements and to perform its
obligations hereunder. The execution and delivery by Pfizer of this Agreement
and the Ancillary Agreements and the performance by Pfizer of its obligations
hereunder have been, or will have been at the Closing, duly authorized by all
requisite corporate action.
(b) Each of the Asset Selling Corporations has all
requisite corporate power and authority to carry on its business as it is now
being conducted. The performance by each of the Asset Selling Corporations of
all actions necessary to permit Pfizer to fulfill its obligations hereunder has
been, or will have been at the Closing, duly authorized by all requisite
corporate action. Pfizer has the requisite corporate authority to bind each of
the Asset Selling Corporations and to cause each of them to act and perform all
their respective obligations herein and in the Ancillary Agreements.
(c) This Agreement has been duly executed and delivered
by Pfizer and, assuming the due authorization, execution and delivery by each of
Purchaser and Parent of this Agreement, constitutes a valid and binding
obligation of Pfizer, enforceable
18
against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or law). Assuming the
due authorization, execution and delivery by Purchaser of each of the Ancillary
Agreements, each of the Ancillary Agreements when duly executed and delivered by
Pfizer at the Closing will constitute a valid and binding obligation of Pfizer,
enforceable against it in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or law).
Section 5.3 Non-Contravention. The execution, delivery and
performance by Pfizer of this Agreement and the Ancillary Agreements, the
actions to be taken by the Asset Selling Corporations necessary to permit Pfizer
to fulfill its obligations hereunder and the consummation of the transactions
contemplated hereby do not and will not (i) violate any provision of the
certificate of incorporation or bylaws of Pfizer or the comparable
organizational documents of any of the Asset Selling Corporations; (ii) conflict
with, or result in the breach of, constitute a default under, result in the
termination, cancellation or acceleration (whether after the giving of notice or
the lapse of time or both) of any right or obligation of any of the Asset
Selling Corporations under or to a loss of any benefit to which any of the Asset
Selling Corporations is entitled under, any contract, agreement or other
arrangement or understanding, lease of real estate or license of the
Intellectual Property to which any of the Asset Selling Corporations is a party
or to which its assets are subject and that relates solely to the Products or
(iii) assuming compliance with the matters set forth in Sections 5.4 and 6.5,
violate or result in a breach of or constitute a default under any Law or other
restriction of any Governmental Authority to which any of the Seller
Corporations is subject; except, with respect to clauses (ii) and (iii), for any
violations, breaches, conflicts, defaults, terminations, cancellations or
accelerations that have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or a material
adverse effect on the ability of Pfizer to consummate the transactions
contemplated hereby without material delay.
Section 5.4 Governmental Consents. Except as set forth in
Section 4.1(b), the execution and delivery by Pfizer of this Agreement and the
Ancillary Agreements and the consummation of the transactions contemplated
hereby do not require any consent or approval of any Governmental Authority,
except for consents or approvals, the failure of which to obtain has not had,
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
Section 5.5 No Litigation.
(a) Except as set forth on Schedule 5.5, as of the date
hereof, no action, audit, litigation, investigation, suit or proceeding by or
before any Governmental Authority relating solely to the Product, the Purchased
Assets or the transactions contemplated hereby is pending against or threatened
in writing or, to the Knowledge of
19
Pfizer, threatened orally against any of the Seller Corporations, in each case
which has had, or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(b) There are no outstanding orders, injunctions or
decrees of any United States Governmental Authority that apply to any of the
Purchased Assets (or will apply to Purchaser after the Closing) that restrict
the ownership, disposition or use of the Purchased Assets in any material
respect.
Section 5.6 Compliance with Laws. Except with respect to
Product Registrations (which are the subject of Section 5.7) and except as set
forth on Schedule 5.6:
(a) each of the Asset Selling Corporations is in
compliance in all respects with all Laws applicable to the ownership of the
Purchased Assets and has not received any written notice or, to the Knowledge of
Pfizer, oral notice that any non-compliance of the foregoing is being alleged,
in each case except to the extent that the failure to comply therewith has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and
(b) a Seller Corporation possesses all Governmental
Authorizations, except where the failure to possess any such Governmental
Authorization has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section 5.7 Product Registrations.
(a) Schedule 5.7 sets forth, as of the date hereof, a
list of all material Governmental Authorizations granted to the Asset Selling
Corporations by any Governmental Authority to market the Product (the "PRODUCT
REGISTRATIONS").
(b) Except as set forth on Schedule 5.7, the Product is
manufactured and marketed in accordance with the specifications and standards
contained in such Product Registrations, except where the failure to comply
therewith has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(c) Except as set forth on Schedule 5.7, an Asset Selling
Corporation is the sole and exclusive owner of the Product Registrations and has
not granted any right of reference with respect thereto.
Section 5.8 Material Contracts.
(a) Except as set forth on Schedule 5.8(a), none of the
Asset Selling Corporations is a party to or bound by any:
20
(i) contract, agreement or other arrangement for the
purchase of Inventories or other personal property with any supplier or
manufacturer relating solely to the Product, in each case providing for
financial commitments in excess of (A) $50,000 and extending beyond one
year from the date hereof or (B) $150,000;
(ii) contract, agreement or other arrangement for the sale
of Inventories or other personal property with any customer relating
solely to the Product, in each case with firm commitments in excess of
one year from the date hereof;
(iii) broker, distributor, dealer, manufacturer's
representative, franchise or agency agreement relating solely to the
Product, the terms of which provide for financial commitments in excess
of $150,000; or
(iv) contract, agreement or other arrangement materially
limiting the sale of the Product.
(b) Except as otherwise set forth on Schedule 5.8(a), (i)
each of the contracts, agreements or other arrangements set forth on Schedule
5.8(a) (collectively, the "MATERIAL CONTRACTS") is valid and binding on the
Asset Selling Corporation that is a party thereto, and, to the Knowledge of
Pfizer, the other party thereto, and is in full force and effect; and (ii) no
Asset Selling Corporation is, and, to the Knowledge of Pfizer, the other party
thereto is not, in breach of, or default under, any Material Contract, in any
material respect.
(c) Schedule 5.8(c) sets forth a list of all of the
agreements that any of the Seller Corporations is a party to providing for the
payment of Rebates ("MANAGED CARE AGREEMENTS") as of December 31, 2002. If any
Managed Care Agreements have expired between December 31, 2002 and the Closing,
Pfizer shall deliver a revised Schedule 5.8(c) at or prior to the Closing
reflecting those expirations.
Section 5.9 Intellectual Property; Know-how.
(a) Schedule 2.1(a)(i) sets forth a true and complete
list of all Patents relating solely to the Product, and Schedule A sets forth a
true and complete list of all registered trademarks and service marks relating
solely to the Product. None of the Seller Corporations is a party to a license
of the Intellectual Property.
(b) Except as set forth on Schedule 5.9(b), (i) there is
no notice of any claim being asserted in writing or, to the Knowledge of Pfizer,
asserted orally by any Person with respect to the ownership, validity,
inventorship or enforceability of any of the Intellectual Property or Know-how
which claim has had, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; (ii) to the Knowledge of Pfizer, an
Asset Selling Corporation owns or licenses the Intellectual Property or
Know-how; (iii) to the Knowledge of Pfizer, the Intellectual Property is free
21
and clear of any Liens, other than Permitted Encumbrances; and (iv) there is no
written notice or, to the Knowledge of Pfizer, oral notice by any Person that
the use of the Intellectual Property by any of the Asset Selling Corporations
infringes, misappropriates or otherwise violates the intellectual property
rights of any Person, except for such infringements, misappropriations or
violations that have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Except as set forth
on Schedule 5.9(b), as of the date hereof, none of the Seller Corporations has
received a notice pursuant to 21 U.S.C. Section. 505(j)(2)(B)(ii) alleging the
invalidity or non-infringement of the Patents relating solely to the Products.
(c) Except as set forth on Schedule 5.9(c), to the
Knowledge of Pfizer, no third party is infringing, misappropriating or otherwise
violating any of the Intellectual Property or Know-how, except for such
infringements, misappropriations or violations by such third party that have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.10 Assets. Except as set forth on Schedule 5.10,
each of the Asset Selling Corporations owns, leases or has the legal right to
use all of its Purchased Assets (other than Intellectual Property and Know-how,
which are the subjects of Section 5.9) free and clear of all Liens, other than
Permitted Encumbrances. Except as set forth on Schedule 5.10, each of the Asset
Selling Corporations has good title to (or in the case of leased Purchased
Assets, valid leasehold interests in) all its Purchased Assets (other than
Intellectual Property and Know-how, which are the subjects of Section 5.9). At
the Closing, Purchaser will acquire good and marketable title in and to each of
the Purchased Assets, free and clear of all Liens, other than Permitted
Encumbrances. The Purchased Assets (without giving effect to the Excluded
Assets) and those assets that are to be retained by Pfizer or any of its
Affiliates, but made available to Purchaser pursuant to the Ancillary Agreements
and the licenses referred to in Section 2.1(b), constitute all the assets and
rights sufficient to conduct in all material respects the marketing, sale and
distribution of the Product as conducted as of the date of this Agreement,
except for any services or other functions provided by any employees of Pfizer
or any of its Affiliates.
Section 5.11 Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Pfizer.
Section 5.12 Statements of Net Sales and Product Contribution.
Schedule 5.12 sets forth (a) the "Statements of Net Sales and Product
Contribution" for the Product of Pfizer and its United States Affiliates for the
years ended December 31, 2000, 2001 and 2002 and (b) the "Statement of Net Sales
and Product Contribution" for the Product of Pfizer's non-United States
Affiliates for the fiscal years ended November 30, 2000, 2001 and 2002 (clauses
(a) and (b), collectively, the "STATEMENTS OF NET SALES AND PRODUCT
CONTRIBUTION"). The Statements of Net Sales and Product Contribution have been
derived from Pfizer's books and records, which have been prepared in
22
accordance with Pfizer's accounting policies and practices applied on a
consistent basis and are in accordance with United States generally accepted
accounting principles.
Section 5.13 Medical Information. Pfizer has made available to
Purchaser copies of all serious adverse event reports and periodic adverse event
reports relating to the Product that have been filed with the FDA since January
1, 1997, including any material correspondence or other material documents.
Section 5.14 Domain Names and Websites. None of Pfizer or any
of its Affiliates has any interest or ownership rights in any domain names or
websites relating solely to the Product, other than as set forth on Schedule
2.1(a)(ix).
Section 5.15 Inventory. Except as set forth on Schedule 5.15,
the Inventory sold to Purchaser pursuant to this Agreement (a) shall not be
adulterated or misbranded (within the meaning of the FDCA or the rules and
regulations of the FDA promulgated thereunder) at the time the same is tendered
to the common carrier for delivery to Purchaser, (b) shall meet in all material
respects all the specifications therefor at the time the same is tendered to the
common carrier for delivery to Purchaser and (c) shall be manufactured, labeled
and packaged in accordance in all material respects with Good Manufacturing
Practices set forth in 21 C.F.R. Parts 210 and 211 and all other applicable
Laws.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT
Purchaser and Parent hereby represent and warrant to Pfizer as
follows:
Section 6.1 Organization and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the Laws
of Ireland. Parent is a corporation duly organized, validly existing and in good
standing under the Laws of Northern Ireland.
Section 6.2 Corporate Authorization. Each of Purchaser and
Parent has all requisite corporate power and authority to carry on its business
as it is now being conducted and to execute and deliver this Agreement and, in
the case of Purchaser, the Ancillary Agreements and to perform its obligations
hereunder. The execution and delivery by each of Purchaser and Parent of this
Agreement and, in the case of Purchaser, of the Ancillary Agreements and the
performance by each of Purchaser and Parent of its obligations hereunder have
been, or will have been at the Closing, duly authorized by all requisite
corporate action. The Board of Directors of Parent, at a meeting duly called and
held, duly adopted resolutions (i) approving this Agreement and declaring that
the transactions contemplated by this Agreement are in the best interests of the
shareholders of Parent, (ii) directing that the approval of this Agreement and
the transactions contemplated by this Agreement be submitted to a vote at a
meeting of the shareholders
23
of Parent and (iii) recommending that the shareholders of Parent approve this
Agreement and the transactions contemplated by this Agreement.
Section 6.3 Binding Effect. This Agreement has been duly
executed and delivered by each of Purchaser and Parent and, assuming the due
authorization, execution and delivery by Pfizer of this Agreement, constitutes a
valid and binding obligation of Purchaser, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or law). Assuming the due authorization, execution and
delivery by Pfizer of each of the Ancillary Agreements, each of the Ancillary
Agreements when duly executed and delivered by Purchaser at the Closing will
constitute a valid and binding obligation of Purchaser, enforceable against it
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or law).
Section 6.4 Non-Contravention. The execution, delivery and
performance by each of Purchaser and Parent of this Agreement and, in the case
of Purchaser, of the Ancillary Agreements and, subject to the receipt of the
Parent Shareholder Approval, the consummation of the transactions contemplated
hereby do not and will not (i) violate any provision of the certificate of
incorporation, bylaws or other organizational documents of Purchaser or Parent;
(ii) conflict with, or result in the breach of, constitute a default under,
result in the termination, cancellation or acceleration (whether after the
giving of notice or the lapse of time or both) of any right or obligation of
Purchaser or Parent under, or to a loss of any benefit to which Purchaser or
Parent is entitled under, any contract, agreement or other arrangement or
understanding, lease of real estate or license of intellectual property to which
Purchaser or Parent is a party or to which its assets are subject or (iii)
assuming compliance with the matters set forth in Sections 5.4 and 6.5, violate
or result in a breach of or constitute a default under any Law or other
restriction of any Governmental Authority to which Purchaser or Parent is
subject; except, with respect to clauses (ii) and (iii), for any violations,
breaches, conflicts, defaults, terminations, cancellations or accelerations that
have not had, and would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the ability of Purchaser or Parent,
as the case may be, to perform its obligations under this Agreement and, in the
case of Purchaser, the Ancillary Agreements (a "PURCHASER MATERIAL ADVERSE
EFFECT") or would not reasonably be expected to materially delay the
consummation of the transactions contemplated hereby.
Section 6.5 Governmental Consents. Except as set forth in
Section 4.1(b), the execution and delivery by each of Purchaser and Parent of
this Agreement and, in the case of Purchaser, the Ancillary Agreements, and the
consummation of the transactions contemplated hereby do not require any consent
or approval of any Governmental Authority, except for consents or approvals, the
failure of
24
which to obtain has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 6.6 Financial Resources. Purchaser has, or Parent
shall cause Purchaser to have, on or prior to the Closing Date, sufficient cash
to pay the Purchase Price.
Section 6.7 Condition of the Purchased Assets. Purchaser and
its representatives and agents have had and have exercised, prior to the date
hereof, the right to make all inspections and investigations of the Product and
the Purchased Assets deemed necessary or desirable by Purchaser. Purchaser is
purchasing the Purchased Assets based solely on the results of its inspections
and investigations and on the representations and warranties of Pfizer expressly
set forth in this Agreement and the Ancillary Agreements. In light of these
inspections and investigations and the representations and warranties made to
Purchaser by Pfizer in Article V, Purchaser is relinquishing any right to any
claim based on any representations and warranties, other than those specifically
included in Article V. Any claims Purchaser may have for breach of
representation or warranty shall be based solely on the representations and
warranties of Pfizer set forth in Article V. All warranties of habitability,
merchantability and fitness for any particular purpose, and all other warranties
arising under the Uniform Commercial Code (or similar foreign Laws), are hereby
waived by Purchaser. Purchaser further represents that neither Pfizer nor any
other Person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any information regarding any of the Seller
Corporations, the Product, the Purchased Assets or the Assumed Liabilities not
expressly set forth in this Agreement, and neither Pfizer nor any other Person
will have or be subject to any Liability to Purchaser or any other Person
resulting from the distribution to Purchaser or its representatives or agents,
or Purchaser's use of, any such information, including any confidential
memoranda distributed by Pfizer relating to the Product or other publication
provided to Purchaser or its representatives or agents, or any other document or
information provided to Purchaser or its representatives or agents in connection
with the sale of the Product.
Section 6.8 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Purchaser or Parent.
Section 6.9 Voting Requirement. The affirmative vote of the
holders of a majority of the issued ordinary shares of Parent at the
Shareholders' Meeting or any adjournment or postponement thereof to approve this
Agreement and the transactions contemplated by this Agreement (the "PARENT
SHAREHOLDER APPROVAL") is the only vote of the holders of any class or series of
the capital stock and/or any class or share in the capital of Purchaser or
Parent necessary to approve this Agreement and the transactions contemplated
hereby.
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ARTICLE VII
COVENANTS
Section 7.1 Information and Documents.
(a) From and after the date hereof and pending Closing,
upon reasonable advance notice, Pfizer shall, and shall cause each of the Asset
Selling Corporations to, permit Purchaser and its representatives to have
access, during regular business hours, to the assets, manufacturing facilities,
employees, books and records of each of the Seller Corporations relating to the
Product, and shall furnish, or cause to be furnished, to Purchaser and its
representatives such financial, tax and operating data and other available
information with respect to the Product as Purchaser and its representatives
shall from time to time reasonably request; provided, however, that no such
access shall unreasonably interfere with the Seller Corporations' operation of
their respective businesses.
(b) All information received by Purchaser and given by or
on behalf of the Seller Corporations in connection with this Agreement and the
transactions contemplated hereby will be held by Purchaser and its Affiliates,
agents and representatives as "Evaluation Material", as defined in, and pursuant
to the terms of, the Confidentiality Agreement.
Section 7.2 Interim Operations Relating to the Products. From
and after the date hereof and to the Closing, except (i) as set forth on
Schedule 7.2 or as otherwise contemplated by this Agreement or (ii) as Parent
shall otherwise consent in writing, Pfizer covenants and agrees that it shall,
or shall cause each of the Asset Selling Corporations to, conduct the sale and
marketing of the Product in the ordinary and usual course consistent with past
practice, and use its commercially reasonable efforts to preserve intact the
business and related relationships with customers, suppliers and other third
parties. From and after the date hereof and to the Closing, except (i) as set
forth on Schedule 7.2 or as otherwise contemplated by this Agreement or (ii) as
Parent shall otherwise consent in writing, Pfizer covenants and agrees that it
shall cause each of the Asset Selling Corporations, with respect to the sale and
marketing of the Product, to:
(a) not incur, create or assume any Lien with respect to
any of the Purchased Assets, other than Permitted Encumbrances;
(b) not dispose of any of the Purchased Assets, other
than in the ordinary course of the sale and marketing of the Product consistent
with past practice;
(c) not enter into, amend any material term of or waive
any material right under any Material Contract;
(d) not institute any new methods of purchase, sale or
operation nor institute any changes in the pricing of the Product or in
promotional allowances, other
26
than in the ordinary course of the sale and marketing of the Product consistent
with past practice;
(e) not make any changes in the selling, pricing or
advertising practices, other than non-material changes in the ordinary course of
the sale and marketing of the Product consistent with past practice;
(f) not launch any packaging changes of the Product or
any line extensions of the Product;
(g) not waive, release, grant or transfer any
Intellectual Property, other than in the ordinary course of the sale and
marketing of the Product;
(h) not compromise or settle the litigation matter set
forth as item 1 on Schedule 5.5;
(i) not enter into any managed care or PBM contract to
include the Product, including amending or supplementing any existing managed
care or PBM contract to include the Product, not renew any existing Managed Care
Agreement or modify the terms relating to the Product in any such existing
Managed Care Agreement; and
(j) not agree to take any of the foregoing actions.
Section 7.3 Reasonable Best Efforts; Certain Governmental
Matters.
(a) Upon the terms and subject to the conditions herein
provided (including Section 2.2), each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary for it to do under applicable Laws to
consummate and make effective the transactions contemplated by this Agreement,
including to (i) comply promptly with all legal requirements which may be
imposed on it with respect to this Agreement and the transactions contemplated
hereby (which actions shall include furnishing all information required by
applicable Law in connection with approvals of or filings with any Governmental
Authority or other Person); (ii) satisfy the conditions precedent to the
obligations of such party hereto; (iii) obtain any consent, authorization, order
or approval of, or any exemption by, any Governmental Authority or other public
or private third party required to be obtained or made by Purchaser or Parent or
the Seller Corporations in connection with the acquisition of the Purchased
Assets or the taking of any other action contemplated by this Agreement and (iv)
take any action reasonably necessary to vigorously defend, lift, mitigate, or
rescind the effect of any litigation or administrative proceeding adversely
affecting the acquisition of the Purchased Assets or the other transactions
contemplated by this Agreement, including promptly appealing any adverse court
or administrative decision.
27
(b) Subject to appropriate confidentiality protections,
each of the parties hereto will furnish to the other party such necessary
information and reasonable assistance as such other party may reasonably request
in connection with the foregoing and will provide the other party with copies of
all filings made by such party with any Governmental Authority and, upon
request, any other information supplied by such party to a Governmental
Authority in connection with this Agreement and the transactions contemplated
hereby.
(c) Without limiting the generality of the undertakings
pursuant to this Section 7.3, (i) Purchaser, Parent and Pfizer agree to provide
or cause to be provided promptly to Governmental Authorities with regulatory
jurisdiction over enforcement of any applicable Competition Laws ("GOVERNMENTAL
ANTITRUST ENTITY") information and documents requested by any Governmental
Antitrust Entity or necessary, proper or advisable to permit consummation of the
acquisition of the Purchased Assets and the other transactions contemplated by
this Agreement and (ii) Purchaser or Parent, as the case may be, shall take
promptly, in the event that any permanent or preliminary injunction or other
order is entered or becomes reasonably foreseeable to be entered in any
proceeding relating to the enforcement of any applicable Competition Laws that
would make consummation of the acquisition of the Purchased Assets or the other
transactions contemplated hereby in accordance with the terms of this Agreement
unlawful or that would prevent or delay consummation of the acquisition of the
Purchased Assets or the other transactions contemplated by this Agreement, any
and all steps (including the appeal thereof or the posting of a bond) necessary
to vacate, modify or suspend such injunction or order so as to permit such
consummation on a schedule as close as possible to that contemplated by this
Agreement. Each of Pfizer, Purchaser and Parent will provide to the other copies
of all correspondence between it (or its advisor) and any Governmental Antitrust
Entity relating to the acquisition of the Purchased Assets or any of the matters
described in this Section 7.3. Pfizer, Purchaser and Parent agree that all
telephone calls and meetings with a Governmental Antitrust Entity solely
regarding the acquisition of the Purchased Assets or any of the matters
described in this Section 7.3 shall include representatives of Pfizer, Purchaser
and Parent.
(d) The parties hereto expressly agree: (i) that any
breach by Purchaser or Parent, as the case may be, of its obligations under
Section 7.3(c) will cause irreparable harm to Pfizer; (ii) that Pfizer has
agreed to this transaction with Purchaser and Parent in specific reliance on
Purchaser's and Parent's obligations under Section 7.3(c), and would not have
otherwise agreed to go forward with Purchaser and Parent; and (iii) therefore,
Pfizer is entitled to specific performance of Purchaser's or Parent's
obligations under Section 7.3(c), and Purchaser and Parent hereby agree in
advance to the granting of such specific performance of such obligations without
proof of actual damages or harm.
Section 7.4 Transitional Services Agreement. At the Closing,
Purchaser and Pfizer shall enter into, execute and deliver a transitional
services agreement substantially to the effect set forth in Exhibit C (the
"TRANSITIONAL SERVICES AGREEMENT").
28
Section 7.5 Transitional Intellectual Property License
Agreement. At the Closing, Purchaser and Pfizer shall enter into, execute and
deliver a transitional intellectual property license agreement substantially to
the effect set forth in Exhibit D (the "TRANSITIONAL INTELLECTUAL PROPERTY
LICENSE AGREEMENT").
Section 7.6 Litigation Support. Purchaser and its Affiliates,
on the one hand, and Pfizer and its Affiliates, on the other hand, will
cooperate with each other in the defense or settlement of any Liabilities or
lawsuits involving the Product by providing the other party and such other
party's legal counsel and other designated Persons access to employees, records,
documents, data, equipment, facilities, products, parts, prototypes and other
information regarding the Product as such other party may request, to the extent
maintained or under the possession or control of the requested party. The
requesting party shall reimburse the other party for its reasonable
out-of-pocket expenses paid to third parties in performing its obligations under
this Section 7.6. Pfizer shall keep Purchaser informed of the status of the
pendency of the relevant Liabilities and lawsuits involving the Product for
which Pfizer has responsibility under this Agreement, shall advise Purchaser of
material issues involved in the litigation and shall use its commercially
reasonable efforts to seek a confidentiality agreement with respect to any
settlements of such lawsuits. For so long as any Liabilities or lawsuits
involving the Product for which Pfizer has responsibility under this Agreement
remain outstanding, Purchaser shall advise Pfizer of material issues involved in
the lawsuits involving the Product for which Purchaser has responsibility and
shall use its commercially reasonable efforts to seek a confidentiality
agreement with respect to any settlements of such lawsuits.
Section 7.7 Certain Employee Arrangements.
(a) For a period of six months commencing on the Closing
Date (the "ACCESS PERIOD"), Pfizer will allow Purchaser an opportunity to enter
into an employment arrangement with any Femhrt Employee. In furtherance thereof,
at the request of Purchaser, during the Access Period, Pfizer shall (i) allow
Purchaser an opportunity to interview any Femhrt Employee, (ii) allow Purchaser
to inspect the personnel files and other documentation relating to any Femhrt
Employee, to the extent permissible under applicable Laws, (iii) not interfere
with the hiring or employment by Purchaser of any Femhrt Employee, (iv) remove
any impediments within the control of Pfizer or any of its Affiliates that may
deter a Femhrt Employee from accepting employment with Purchaser, including any
non-compete provisions of employment or other contracts with Pfizer or any of
its Affiliates that would affect the ability or incentive of those individuals
to be employed by Purchaser and (v) not make any counteroffer to any Femhrt
Employee who receives a written offer of employment from Purchaser.
(b) At or prior to the Closing, Pfizer shall deliver to
Purchaser a true and complete list of those individuals who, to the Knowledge of
Pfizer, are Femhrt Employees.
29
(c) Pfizer agrees that it shall pay to any Femhrt
Employee who accepts an offer of employment made by Purchaser during the Access
Period and remains an employee of Purchaser for the continuous one year period
after acceptance of such offer, a cash payment equal to one month of the base
annual salary of such Femhrt Employee in effect as of the date of this Agreement
at the expiration of such one year period.
(d) The provisions of this Section 7.7 shall terminate
and have no further force and effect in the event the provisions of Section
10.16 are effected.
Section 7.8 Notifications.
(a) Pfizer and Purchaser shall agree on the method and
content of the notifications to customers of the sale of the Purchased Assets to
Purchaser. Pfizer and Purchaser agree that said notifications are to provide
sufficient advance notice of the sale and the plans associated therewith, with
the objective of minimizing any disruption of the sale and marketing of the
Product.
(b) Within ten Business Days after the Closing, Pfizer
and Purchaser jointly shall notify the counterparties to the Managed Care
Agreements in effect at such time that the Product has been sold to Purchaser.
In addition, Pfizer shall inform each such counterparty that, effective as of
the first day in the calendar quarter subsequent to the expiration of the first
full calendar quarter after the Closing, the Managed Care Agreement to which it
is a party shall be terminated solely with respect to the Product.
Section 7.9 Post-Closing Cooperation.
(a) Purchaser and Pfizer shall cooperate with each other,
and shall cause their officers, employees, agents, auditors, Affiliates and
representatives to cooperate with each other, for a period of 180 days after the
Closing to ensure the orderly transition of the sale and distribution of the
Product from Pfizer to Purchaser and to minimize any disruption to the sale and
distribution of the Product and the other respective businesses of Pfizer and
Purchaser that might result from the transactions contemplated hereby. After the
Closing, upon reasonable written notice, Purchaser and Pfizer shall furnish or
cause to be furnished to each other and their respective employees, counsel,
auditors and representatives access, during normal businesses hours, to such
information and assistance relating to the sale and distribution of the Product
(to the extent within the control of such party) as is reasonably requested for
financial reporting and accounting matters.
(b) After the Closing, upon reasonable written notice,
Purchaser and Pfizer shall furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance (to the extent within
the control of such party) relating to the Purchased Assets (including access to
books and records) as is reasonably requested for the filing of all Tax returns.
30
(c) Each of the parties hereto shall from time to time
after the Closing, without additional consideration, execute and deliver such
further instruments and take such other action as may be reasonably requested by
the other party to make effective the transactions contemplated by this
Agreement and the Ancillary Agreements. With respect to all documents,
information and other materials included in the Purchased Assets, in addition to
paper and other tangible copies, Pfizer shall, upon Purchaser's reasonable
request, also provide to Purchaser electronic copies of such documents,
information and other materials, provided that Pfizer or any of its Affiliates
or their respective agents have electronic copies thereof.
(d) Each party shall reimburse the other for reasonable
out-of-pocket costs and expenses incurred in assisting the other pursuant to
this Section 7.9. Neither party shall be required by this Section 7.9 to take
any action that would unreasonably interfere with the conduct of its business or
unreasonably disrupt its normal operations.
Section 7.10 Confidentiality.
(a) Except as otherwise contemplated by this Agreement,
Pfizer agrees that for a period of ten years following the Closing Date, it
shall, and it shall cause its Affiliates, agents and representatives to, keep
confidential any and all information, in any form or medium, relating solely to
the Product ("CONFIDENTIAL INFORMATION") strictly confidential. The term
"Confidential Information" does not include any information that (i) at the time
of disclosure or thereafter is generally available in the public domain (other
than as a result of a disclosure by Pfizer or any of its Affiliates, agents or
representatives) or (ii) is required to be disclosed under applicable Law or
judicial process.
(b) The parties hereto agree that a breach of this
Section 7.10 would cause irreparable damage for which no adequate remedy at law
would exist and damages would be difficult to determine and that Purchaser shall
be entitled to an injunction or injunctions to prevent breaches of this Section
7.10 and to enforce specifically the terms and provisions of this Section 7.10,
in addition to any other remedy at law or equity.
Section 7.11 Parent Shareholder Approval.
(a) Recommendation of the Board of Directors of Parent.
Neither the Board of Directors of Parent nor any committee thereof shall (or
shall agree or resolve to) withdraw or modify in a manner adverse to Pfizer or
propose publicly to withdraw or modify in a manner adverse to Pfizer the
recommendation by such Board of Directors or any such committee of this
Agreement or the transactions contemplated hereby, unless such Board of
Directors or a committee thereof determines in good faith (after consultation
with outside counsel) that the failure to take such action would result in a
breach of its fiduciary duties under applicable Law (any such action taken in
accordance with this Section 7.11 being referred to herein as a "PARENT ADVERSE
RECOMMENDATION CHANGE").
31
(b) Preparation of the Parent Circular; Shareholders'
Meeting.
(i) As promptly as practicable following the date of this
Agreement, Parent shall prepare and mail the circular of Parent (the
"PARENT CIRCULAR") to be sent to the shareholders of Parent in
connection with obtaining the Parent Shareholder Approval at the
Shareholders' Meeting. Parent shall respond promptly to any comments of
the UK Listing Authority (the "UKLA") with respect to the Parent
Circular. In any event, Parent shall use its reasonable best efforts to
obtain the clearance of the UKLA on or before March 7, 2003. Pfizer
covenants and agrees that it shall provide such reasonable assistance
in the preparation of the Parent Circular as may be reasonably
requested by Parent. The Parent Circular shall comply in all material
respects with the requirements of the UKLA Listing Rules as published
by the Financial Services Authority, the articles of association and
memorandum of association of Parent and all other applicable Laws.
(ii) Parent shall, as promptly as practicable after the
receipt of the clearance of the UKLA, establish a record date (which
will be as promptly as reasonably practicable following the receipt of
the clearance of the UKLA) for, duly call, give notice of, convene and
hold a meeting of its shareholders, which meeting Parent shall cause to
occur on the earlier of (A) the 20th day following the mailing of the
Parent Circular and (B) the sixth Business Day prior to the Termination
Date (the "SHAREHOLDERS' MEETING"), for the purpose of obtaining the
Parent Shareholder Approval; provided, however, that if Parent is
unable to obtain a quorum of its shareholders at such time, Parent may
extend the date of the Shareholders' Meeting by no more than five
Business Days and Parent shall use its best efforts during such five
Business Day period to obtain such a quorum as soon as practicable. The
notice of such Shareholders' Meeting shall state that a resolution to
approve this Agreement and the transactions contemplated hereby will be
considered at the Shareholders' Meeting. Subject to Section 7.11(a),
Parent shall, through its Board of Directors or any committee thereof,
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby and shall include such recommendation
in the Parent Circular.
Section 7.12 Transfer of Regulatory Approvals.
(a) Assignment. Promptly after the Closing, Pfizer and
Purchaser shall work together to transfer and assign all Product Registrations
to Purchaser at such times and in such a manner as is reasonably acceptable to
Purchaser. In the event that Purchaser assigns any Product Registrations to an
Affiliate of Purchaser or to a third party, Purchaser shall remain liable for
the performance of its obligations under this Agreement.
(b) Reporting Obligations. Upon the transfer and
assignment of each of the Product Registrations to Purchaser, as provided in
Section 7.12(a), and thereafter,
32
Purchaser shall be solely responsible for making all reports to the appropriate
Governmental Authorities as are required in connection with such Product
Registrations assigned to Purchaser and for conducting all pharmacovigilance
activities in connection with such Product Registrations. In order for the
parties hereto to comply with their respective responsibilities under this
Section 7.12 and otherwise relating to the reporting of adverse drug
experiences, to the extent any party receives any information regarding an
adverse drug experience relating to the use of any of the Products, such party
shall promptly provide the other party with such information in accordance with
adverse drug experience procedures that shall be mutually agreed upon by Pfizer
and Purchaser after the signing of this Agreement, but in any event no later
than one month following the Closing Date.
Section 7.13 Certain Patents. Immediately following the
Closing, Purchaser shall grant to Pfizer or its designated Affiliate a
non-exclusive, perpetual, royalty-free, worldwide license to use the Patents set
forth as item 2 on Schedule 2.1(a)(i), it being understood that Pfizer or such
Affiliate shall not use such Patents in connection with any hormone replacement
therapy products.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by Pfizer.
(a) Subject to the provisions of this Article VIII,
Pfizer agrees to defend, indemnify and hold harmless Parent, Purchaser and their
respective Affiliates, and their respective directors, officers, agents,
employees, successors and assigns, from and against any and all claims, actions,
causes of action, judgments, awards, Liabilities, losses, costs (including
reasonable attorney's fees) or damages (collectively, a "LOSS" or, the "LOSSES")
claimed or arising from (i) any Retained Liability, (ii) any breach by Pfizer of
any of its covenants or agreements contained in this Agreement or (iii) any
breach of any representation or warranty of Pfizer contained in this Agreement,
the Transitional Services Agreement or the Transitional Intellectual Property
License Agreement (it being agreed that solely for the purposes of such right to
indemnification, such representations and warranties shall be deemed not
qualified by any reference therein to materiality (including Material Adverse
Effect)).
(b) Purchaser and Parent acknowledge and agree that
Pfizer shall not have any Liability under any provision of this Agreement for
any Loss to the extent that such Loss relates to action taken by Purchaser,
Parent or their Affiliates (other than action taken by Pfizer in breach of this
Agreement) after the Closing Date. Each of Parent and Purchaser shall take, and
shall cause their respective Affiliates to take, all reasonable steps to
mitigate any Loss upon becoming aware of any event which would reasonably be
expected to, or does, give rise thereto, including incurring costs only to the
extent reasonably necessary to remedy the breach which gives rise to the Loss.
33
Section 8.2 Indemnification by Parent.
(a) Subject to the provisions of this Article VIII,
Parent agrees to defend, indemnify and hold harmless Pfizer and its Affiliates,
and their respective directors, officers, agents, employees, successors and
assigns, from and against any and all Loss claimed or arising from (i) any
Assumed Liability, (ii) any breach by Purchaser or Parent of any of its
covenants or agreements in this Agreement, (iii) any breach of any
representation or warranty of Purchaser or Parent contained in this Agreement
or, in the case of Purchaser, the Transitional Services Agreement or the
Transitional Intellectual Property License Agreement or (iv) events occurring on
or after the Closing Date in connection with the Products or the Purchased
Assets, including the use, ownership or possession of the Purchased Assets from
and after the Closing Date.
(b) Pfizer shall take, and cause its Affiliates to take,
all reasonable steps to mitigate any Loss upon becoming aware of any event which
would reasonably be expected to, or does, give rise thereto, including incurring
costs only to the extent reasonably necessary to remedy the breach which gives
rise to the Loss.
Section 8.3 Notice of Claims. If any of the Persons to be
indemnified under this Article VIII (the "INDEMNIFIED PARTY") has suffered or
incurred any Loss, the Indemnified Party shall so notify the party from whom
indemnification is sought (the "INDEMNIFYING PARTY") promptly in writing
describing such Loss, the amount or estimated amount thereof, if known or
reasonably capable of estimation, and the method of computation of such Loss,
all with reasonable particularity and containing a reference to the provisions
of this Agreement or any other agreement or instrument delivered pursuant hereto
in respect of which such Loss shall have occurred. If any action at Law or suit
in equity is instituted by or against a third party with respect to which the
Indemnified Party intends to claim any Liability as a Loss under this Article
VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such
action or suit and tender to the Indemnifying Party the defense of such action
or suit. A failure by the Indemnified Party to give notice and to tender the
defense of the action or suit in a timely manner pursuant to this Section 8.3
shall not limit the obligation of the Indemnifying Party under this Article
VIII, except (i) to the extent such Indemnifying Party is materially prejudiced
thereby, (ii) to the extent expenses that are incurred during the period in
which notice was not provided shall not be deemed a Loss and (iii) as provided
by Section 8.5.
Section 8.4 Third Party Claims.
(a) The Indemnifying Party under this Article VIII shall
have the right, but not the obligation, to conduct and control, through counsel
of its choosing, any third party claim, action, suit or proceeding (a "THIRD
PARTY CLAIM"), and the Indemnifying Party may compromise or settle the same,
provided that the Indemnifying Party shall give the Indemnified Party advance
notice of any proposed compromise or settlement, provided further that the
Indemnifying Party shall not compromise or settle any Third Party Claim without
the approval of the Indemnified Party if such compromise or
34
settlement imposes any obligations on the Indemnified Party, such approval not
to be unreasonably withheld. No Indemnified Party may compromise or settle any
Third Party Claim for which it is seeking indemnification hereunder without the
consent of the Indemnifying Party. The Indemnifying Party shall permit the
Indemnified Party to participate in, but not control, the defense of any such
action or suit through counsel chosen by the Indemnified Party, provided that
the fees and expenses of such counsel shall be borne by the Indemnified Party.
If the Indemnifying Party elects not to control or conduct the defense or
prosecution of a Third Party Claim, the Indemnifying Party nevertheless shall
have the right to participate in the defense or prosecution of any Third Party
Claim and, at its own expense, to employ counsel of its own choosing for such
purpose.
(b) The parties hereto shall cooperate in the defense or
prosecution of any Third Party Claim, with such cooperation to include (i) the
retention of and the provision to the Indemnifying Party of records and
information that are reasonably relevant to such Third Party Claim and (ii) the
making available of employees on a mutually convenient basis for providing
additional information and explanation of any material provided hereunder.
Section 8.5 Expiration Notwithstanding anything in this
Agreement to the contrary, if the Closing shall have occurred, all covenants,
agreements, representations and warranties made herein shall survive the
Closing. Notwithstanding the foregoing, all representations and warranties made
herein (except for the last two sentences of Section 5.10 and Section 5.11), and
all indemnification obligations under Sections 8.1 and 8.2 with respect to any
such representation or warranty, shall terminate and expire on, and no action or
proceeding seeking damages or other relief for breach of any thereof or for any
misrepresentation or inaccuracy with respect thereto shall be commenced after,
the expiration of 18 months following the Closing Date, unless prior to such
date a claim for indemnification with respect thereto shall have been made, with
reasonable specificity, by written notice given under Section 8.3.
Section 8.6 Certain Limitations. Notwithstanding the other
provisions of this Article VIII, Pfizer shall not have any indemnification
obligations for Losses under Section 8.1(a)(iii), (i) for any individual item
where the Loss relating thereto is less than $50,000 and (ii) in respect of each
individual item where the Loss relating thereto is equal to or greater than
$50,000, (A) unless the aggregate amount of all such Losses exceeds 1% of the
Adjusted Purchase Price, in which event Pfizer shall be required to pay all
amounts of such Losses (from the first dollar of such Losses), and (B) only up
to a maximum amount of 35% of the Adjusted Purchase Price; provided, however,
that the foregoing limitations shall not apply to breaches of any of the
representations and warranties contained in the last two sentences of Section
5.10 and Section 5.11.
Section 8.7 Losses Net of Insurance, Etc.. The amount of any
Loss for which indemnification is provided under Section 8.1 or 8.2 shall be net
of (i) any amounts recovered by the Indemnified Party pursuant to any
indemnification by or indemnification agreement with any third party (any such
third party, a "COLLATERAL
35
SOURCE") and (ii) an amount equal to the present value of the tax benefit, if
any, attributable to such Loss. Indemnification under this Article VIII shall
not be available unless the Indemnified Party first uses all commercially
reasonable efforts to seek recovery from all Collateral Sources. The
Indemnifying Party may require an Indemnified Party to assign the rights to seek
recovery pursuant to the preceding sentence; provided, however, that the
Indemnifying Party will then be responsible for pursuing such claim at its own
expense. If the amount to be netted hereunder from any payment required under
Section 8.1 or 8.2 is determined after payment by the Indemnifying Party of any
amount otherwise required to be paid to an Indemnified Party to this Article
VIII, the Indemnified Party shall repay to the Indemnifying Party, promptly
after such determination, any amount that the Indemnifying Party would not have
had to pay pursuant to this Article VIII had such determination been made at the
time of such payment.
Section 8.8 Sole Remedy/Waiver. Subject to Sections 7.3(d),
7.10(b) and 9.2, the parties hereto acknowledge and agree that the remedies
provided for in this Agreement shall be the parties' sole and exclusive remedy
with respect to the subject matter of this Agreement, other than claims for
injunctive relief. In furtherance of the foregoing, the parties hereby waive, to
the fullest extent permitted by applicable Law, any and all other rights, claims
and causes of action (including rights of contributions, if any) known or
unknown, foreseen or unforeseen, which exist or may arise in the future, other
than claims for injunctive relief, that it may have against Pfizer or any of its
Affiliates or Purchaser or any of its Affiliates, as the case may be, arising
under or based upon any federal, state or local Law.
Section 8.9 No Consequential Damages. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO
OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO OR ANY AFFILIATE OF ANY OTHER
PARTY HERETO FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR FOR DIMINUTION
IN VALUE OR LOST PROFITS THAT ARISE OUT OF OR RELATE TO A BREACH OF THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (OTHER THAN THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LAST TWO SENTENCES OF SECTION
5.10 AND SECTION 5.11), THE TRANSITIONAL SERVICES AGREEMENT AND THE TRANSITIONAL
INTELLECTUAL PROPERTY LICENSE AGREEMENT.
ARTICLE IX
TERMINATION
Section 9.1 Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written agreement among Purchaser, Parent
and Pfizer;
36
(b) by Purchaser, Parent or Pfizer, by giving written
notice of such termination to the other party, if the Closing shall not have
occurred on or prior to April 30, 2003 (the "TERMINATION DATE") (unless the
failure to consummate the Closing by such date (i) shall be due to the failure
of the party seeking to terminate this Agreement to have fulfilled any of its
obligations under this Agreement or (ii) is due to the continuance of a waiting
period or lack of an approval required under or an injunction or equivalent
thereof entered based upon any Competition Laws, in which event Purchaser and
Parent may not rely upon this Section 9.1(b) to terminate this Agreement until
nine months from the date of this Agreement);
(c) by Purchaser, Parent or Pfizer, if any court of
competent jurisdiction or other competent Governmental Authority shall have
issued a Governmental Order or taken any other action permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such Governmental Order or other action shall have become final
and nonappealable;
(d) by Purchaser, Parent or Pfizer, if the Parent
Shareholder Approval shall not have been obtained at the Shareholders' Meeting
duly convened therefor or at any adjournment or postponement thereof;
(e) by Pfizer, in the event that a Parent Adverse
Recommendation Change shall have occurred; or
(f) by Pfizer, if Parent shall have failed to perform any
of its material covenants and agreements set forth in Section 7.11.
Section 9.2 Effect of Termination.
(a) In the event of the termination of this Agreement in
accordance with Section 9.1, this Agreement shall thereafter become void and
have no effect, and no party hereto shall have any Liability to the other party
hereto or their respective Affiliates, directors, officers or employees, except
for the obligations of the parties hereto contained in this Section 9.2 and
Sections 7.1(b), 10.1, 10.7, 10.8, 10.9 and 10.11, and except that nothing
herein will relieve any party from Liability for any material breach of any
covenant set forth in this Agreement prior to such termination.
(b) If this Agreement is terminated pursuant to Section
9.1(e) or (f) and both (i) Pfizer shall have performed in all material respects
its agreements and obligations contained in this Agreement required to be
performed by it at or before such Parent Adverse Recommendation Change (in the
case of Section 9.1(e)) or such failure (in the case of Section 9.1(f)), as the
case may be, and (ii) the representations and warranties of Pfizer contained in
this Agreement (A) that are qualified as to materiality or by reference to
Material Adverse Effect are true and correct and (B) that are not so qualified
are true and correct in all material respects, in each case as of the date of
this Agreement and as of the date of such Parent Adverse Recommendation Change
(in the case of Section 9.1(e)) or such failure (in the case of Section 9.1(f)),
as the case may be,
37
except to the extent such representations and warranties expressly relate to a
particular date (in which case, on and as of such particular date), then Parent
shall pay Pfizer a fee equal to $2,700,000 (the "TERMINATION FEE") by wire
transfer of immediately available funds to an account designated by Pfizer
within two Business Days after such termination.
(c) If this Agreement is terminated pursuant to Section
9.1(d) and Pfizer shall have performed in all material respects its agreements
and obligations contained in this Agreement required to be performed by it at or
before such termination, then Parent shall reimburse Pfizer for all the
reasonable fees and expenses, not in excess of $112,500, of Pfizer's outside
vendors (including its attorneys) incurred since October 17, 2002 in connection
with the evaluation and pursuit of the transactions contemplated by this
Agreement (the "PFIZER REIMBURSABLE FEES") by wire transfer of immediately
available funds to an account designated by Pfizer within two Business Days
after such termination.
(d) If (i) this Agreement is terminated by Parent and
Purchaser pursuant to Section 9.1(b) or (c) as a consequence of and based upon
the failure of the condition to the Closing set forth in Section 4.1(b) and both
(A) the conditions to the Closing set forth in Sections 4.1(c) and 4.2(e) shall
have been satisfied at the time of such termination and (B) Parent and Purchaser
shall have performed in all material respects their respective agreements and
obligations contained in this Agreement required to be performed by them at or
before such termination or (ii) the provisions of Section 10.16 are effected,
then Pfizer shall reimburse Parent and Purchaser for all of their reasonable
fees and expenses, not in excess of $250,000, of their outside vendors
(including their attorneys) in connection with their evaluation and pursuit of
the transactions contemplated by this Agreement (the "PARENT REIMBURSABLE FEES")
by wire transfer of immediately available funds to an account designated by
Parent within two Business Days after such termination.
(e) Parent acknowledges and agrees that the agreements
contained in Sections 9.2(b) and (c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Pfizer would
not enter into this Agreement; accordingly, if Parent fails promptly to pay the
amount due pursuant to either Section 9.2(b) or (c), and, in order to obtain
such payment, Pfizer commences a suit that results in a judgment against Parent
for the Termination Fee or the Pfizer Reimbursable Fees, as the case may be,
Parent shall pay to Pfizer its costs and expenses (including attorneys' fees and
expenses) in connection with such suit, together with interest on the amount of
the Termination Fee or the Pfizer Reimbursable Fees, as the case may be, from
the date such payment was required to be made until the date of the payment at
the prime rate of Citibank, N.A. in effect on the date such payment was required
to be made.
(f) Pfizer acknowledges and agrees that the agreements
contained in Section 9.2(d) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Parent and
Purchaser would not enter into this Agreement; accordingly, if Pfizer fails
promptly to pay the amount due pursuant to
38
Section 9.2(d), and, in order to obtain such payment, Parent and Purchaser
commence a suit that results in a judgment against Pfizer for the Parent
Reimbursable Fees, Pfizer shall pay to Parent its costs and expenses (including
attorneys' fees and expenses) in connection with such suit, together with
interest on the amount of the Parent Reimbursable Fees, from the date such
payment was required to be made until the date of the payment at the prime rate
of Citibank, N.A. in effect on the date such payment was required to be made.
(g) In the event this Agreement shall be terminated and
at such time any party is in material breach of or default under any term or
provision hereof, such termination shall be without prejudice to, and shall not
affect, any and all rights to damages that the other party may have hereunder or
otherwise under applicable Law. The damages recoverable by the non-defaulting
party shall include all attorneys' fees reasonably incurred by such party in
connection with the transactions contemplated hereby.
(h) If this Agreement is terminated in accordance with
Section 9.1 or the provisions of Section 10.16 are effected, Purchaser agrees
that the prohibition in the Confidentiality Agreement restricting Purchaser's
ability to solicit any employee of Pfizer or any of its Affiliates to join the
employ of Purchaser or any of its Affiliates shall be extended to a period of
two years from the date of this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. All notices or other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended, if delivered
by registered or certified mail, return receipt requested, or by a national
courier service, or if sent by facsimile, provided that the facsimile is
promptly confirmed by telephone confirmation thereof, to the Person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such Person:
To Pfizer:
PFIZER INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Senior Vice President and
General Counsel
39
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To Purchaser or Parent:
▇▇▇▇▇ HOLDINGS PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Senior Vice President, Corporate Development,
General Counsel and Corporate Secretary
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Section 10.2 Amendment; Waiver. Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Parent, Purchaser and
Pfizer, or in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
Section 10.3 Assignment. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that Purchaser may without such
consent assign its rights to purchase the Purchased Assets or its obligation to
assume the Assumed Liabilities hereunder to one or more of its Affiliates or to
any successor to all or substantially all of its pharmaceuticals business;
provided, however, that no such assignment by Purchaser shall relieve Purchaser
of any of its obligations hereunder.
Section 10.4 Entire Agreement. This Agreement (including all
Schedules and Exhibits) contains the entire agreement between the parties hereto
with
40
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters, except for the
Confidentiality Agreement which will remain in full force and effect for the
term provided for therein and other than any written agreement of the parties
that expressly provides that it is not superseded by this Agreement.
Section 10.5 Fulfillment of Obligations. Any obligation of any
party to any other party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such party, shall be deemed to have
been performed, satisfied or fulfilled by such party.
Section 10.6 Parties in Interest. Except as provided in
Article VIII, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
Person other than Parent, Purchaser, Pfizer or their respective successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
Section 10.7 Public Disclosure. Notwithstanding anything
herein to the contrary, each of the parties to this Agreement hereby agrees with
the other parties hereto that, except as may be required to comply with the
requirements of any applicable Laws, and the rules and regulations of each stock
exchange upon which the securities of either of the parties is listed, no press
release or similar public announcement or communication shall, if prior to the
Closing, be made or caused to be made concerning the execution or performance of
this Agreement unless the parties shall have consulted in advance with respect
thereto.
Section 10.8 Return of Information. If for any reason
whatsoever the transactions contemplated by this Agreement are not consummated
(including by reason of Section 10.16), Purchaser or Parent, as applicable,
shall promptly return to Pfizer, or an officer of Purchaser or Parent, as
applicable, shall certify on behalf of Purchaser or Parent, as applicable, to
the destruction of, all books and records furnished by Pfizer, any other Seller
Corporation or any of their respective Affiliates, agents, employees, or
representatives (including all copies, summaries and abstracts, if any, thereof)
in accordance with the terms of the Confidentiality Agreement.
Section 10.9 Expenses. Except as otherwise expressly provided
in this Agreement, whether or not the transactions contemplated by this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses. Notwithstanding the foregoing, all Taxes
(including any value added taxes but excluding any income taxes) and recording
fees, in each case relating to the transfer of the Purchased Assets, shall be
paid by Purchaser.
Section 10.10 Schedules. The disclosure of any matter in any
one Schedule shall be deemed to be a disclosure for all purposes of this
Agreement to the
41
extent that the relevance of such matters to other Sections or other applicable
Schedules is reasonably apparent to a reader on its face, but shall expressly
not be deemed to constitute an admission by Pfizer, Purchaser or Parent, or to
otherwise imply, that any such matter is material for the purposes of this
Agreement.
Section 10.11 Governing Law; Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the Laws of the State of New York, regardless of the Laws that
might otherwise govern applicable principles of conflicts of Laws thereof.
(b) With respect to any suit, action or proceeding
relating to this Agreement (each, a "PROCEEDING"), each party hereto irrevocably
(i) agrees and consents to be subject to the jurisdiction of the United States
District Court for the Southern District of New York or any New York State court
sitting in New York, New York, United States of America and (ii) waives any
objection which it may have at any time to the laying of venue of any Proceeding
brought in any such court, waives any claim that such Proceeding has been
brought in an inconvenient forum and further waives the right to object, with
respect to such Proceeding, that such court does not have any jurisdiction over
such party. Purchaser and Parent hereby irrevocably designate, appoint and
empower CT Corporation System, with offices located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as their designee, appointee and agent to
receive, accept and acknowledge for and on their behalf service of any legal
process, summons notices and documents which may be served in any such
Proceeding. If for any reason CT Corporation System is unable or unwilling to
continue to act as such designee, appointee and agent, Purchaser and Parent
agree to immediately appoint a successor designee, appointee and agent in ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ reasonably acceptable to Pfizer.
Section 10.12 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same agreement.
Section 10.13 Headings. The heading references herein and the
table of contents hereto are for convenience purposes only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
Section 10.14 Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any Person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the
42
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
Section 10.15 Guarantee of Parent. Parent guarantees the full
and timely payment and performance of Purchaser's and any of its other
Affiliates' covenants, agreements, obligations, Liabilities, representations and
warranties under this Agreement and the Ancillary Agreements.
Section 10.16 Unwind. If the Closing shall have occurred prior
to final FTC approval of the FTC Consent Order, and Pfizer thereafter receives
notice from the FTC that Purchaser is not an acceptable purchaser of the
Purchased Assets or that the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements does not constitute an acceptable
manner of divestiture, then the parties shall immediately rescind the
transactions consummated at the Closing, and this Agreement and the Ancillary
Agreements shall be automatically terminated upon such rescission (other than
Section 9.2 of this Agreement and the Sections referenced therein). In
connection with such rescission, Pfizer shall refund the Purchase Price (or
Adjusted Purchase Price, as the case may be, in either case without interest) to
Purchaser, Purchaser shall return all the Purchased Assets in its or its
Affiliates' possession or control to Pfizer, and the parties shall take such
other actions as may be necessary in order to return each party to the
respective position it occupied immediately prior to the Closing (it being
understood, however, that Purchaser shall retain any profits and bear any losses
in respect of its ownership of the Purchased Assets).
43
IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed as of the date first written above.
PFIZER INC.,
By: ________________________________________
Name:
Title:
▇▇▇▇▇ (CHEMICALS) LIMITED,
By: ________________________________________
Name:
Title:
▇▇▇▇▇ HOLDINGS PLC,
By: ________________________________________
Name:
Title:
44