[EXHIBIT 99.2]
OPTION AGREEMENT
This Agreement, effective as of June 28, 1996, is made by and between
▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, a Delaware corporation (hereinafter
"▇▇▇▇▇▇-▇▇▇▇▇▇▇"), with primary offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and PFIZER INC., a Delaware corporation
(hereinafter "PFIZER"), with primary offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, PFIZER and its Affiliates (as hereinafter defined) hold
certain rights to certain pharmaceutical compounds hereinafter described;
and
WHEREAS, PFIZER may further develop such pharmaceutical compounds into
pharmaceutical Products (as hereinafter defined) and may file at some
future date for regulatory approval in the United States and elsewhere to
market, distribute and sell some or all of the Products in the United
States and elsewhere; and
WHEREAS, simultaneously with the execution of this Agreement
▇▇▇▇▇▇-▇▇▇▇▇▇▇ and PFIZER are signing (i) a Collaboration Agreement, dated
the date hereof (hereinafter "Collaboration Agreement"), under which
▇▇▇▇▇▇-▇▇▇▇▇▇▇ grants to PFIZER certain co-promotion and other rights
regarding atorvastatin in the United States and (ii) an International
Collaboration Agreement, International Co-Promotion Agreement and
International License Agreement, each dated the date hereof (collectively
referred to herein as the "International Agreements"), under which
▇▇▇▇▇▇-▇▇▇▇▇▇▇ grants to PFIZER certain co-promotion and other rights
regarding atorvastatin in countries outside the United States; and
WHEREAS, PFIZER and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ have had discussions concerning the
possibility that the parties would enter into an agreement under which
PFIZER would grant to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ certain co-promotion and other rights
regarding a Product, when and if such Product is ever marketed, but
▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not desire to negotiate the terms of such an agreement
at this time; and
WHEREAS, PFIZER is willing to grant to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ is interested in obtaining an option to negotiate an
agreement granting such co-promotion and other rights in the future under
the terms set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and the
covenants and agreements contained herein, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and PFIZER,
intending to be legally bound, hereby agree as follows:
ARTICLE I - DEFINITIONS
SECTION 1.01 Definitions. The following capitalized terms shall have
the following meanings:
"Affiliate" shall mean any Person that directly or indirectly controls
or is controlled by or is under common control with ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or
PFIZER, as the case may be, but only for so long as said control shall
continue. As used herein the term "control" means possession of the power
to direct or cause the direction of the management and policies of a Person
whether by contract or otherwise.
"Change in Control" shall mean an event where:
(A) any Person(s) acquire beneficial ownership of capital stock of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ entitling the holder(s) thereof to at least fifty-one
percent (51%) of the voting power of the then outstanding capital
stock of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ with respect to the election of directors of
▇▇▇▇▇▇-▇▇▇▇▇▇▇, or (B) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ enters into a merger,
consolidation or similar transaction with another Person (the
"Acquiring Corporation") in which (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ is not the
surviving corporation in such transaction, (ii) the members of the
Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ prior to such transaction
constitute less than one half of the members of the Board of Directors
of the Acquiring Corporation following such transaction, and (iii) at
least fifty-one percent (51%) of the voting power of the outstanding
capital stock of the Acquiring Corporation with respect to the
election of directors following such transaction is held by Persons
who were shareholders of the Acquiring Corporation prior to such
transaction, or
(C) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ sells to any Person(s) in one or more related
transactions properties or assets representing at least fifty-one
percent (51%) of (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ consolidated total assets as
reflected on its most recent Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, provided that all or substantially all of the
properties and assets used in connection with ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇
pharmaceutical business are included in such transaction(s) and (ii)
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ consolidated operating income for the most recent
fiscal year as reflected on its most recent Annual Report on Form
10-K.
"Confidential Information" shall mean (i)-for ▇▇▇▇▇▇-▇▇▇▇▇▇▇, all
PFIZER Confidential Information and (ii) for PFIZER, all ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Confidential Information.
"Co-Promotion Agreement" shall mean an agreement or agreements whereby
PFIZER grants to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its designated Affiliates co-promotion
and/or other rights to a Product upon such terms as the parties may agree
upon pursuant to the terms of this Agreement. While the parties acknowledge
that they cannot as of the date hereof determine the specific terms or
parameters for such agreement or agreements, the parties intend that, at
the time they negotiate such agreement or agreements, they will consider as
relevant factors: (a) market and competitive environment regarding the
Product, (b) the medical profile of the Product, (c) the patent situation
relevant to the Product, (d) the regulatory and cost containment
environment affecting the Product, (e) estimated sales and profit levels
for the Product, (f) the extent of the operations of each of the parties in
various countries, and (g) the terms of the Collaboration Agreement and the
International Agreements.
"Darifenacin" shall mean the chemical compound (S)-1[2-(2,
3-Dihydro-5-benzofuranyl)ethyl]-a, a-dipheny]-3-pyrrolidineacetamide.
"Droloxifene" shall mean the chemical compound phenol, 3-
1-[4-]2-(dimethylamino)ethoxy]phenyl]-2-phenyl-l-butenyl],-(E)-.
"Eletriptan" shall mean the chemical compound (R)-lH-Indole,
3-{(l-methyl-2-pyrrolidinyl)methyl)-5-(2-(phenysulfonyl)ethyl)-.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, agency, commission, official or other instrumentality of any
federal, state, county, city or other political subdivision, domestic or
foreign.
"Laws" shall mean all laws, statutes, rules, regulations, ordinances
and other pronouncements having the effect of law of any government or
Governmental or Regulatory Authority.
"Person" shall mean any natural person, corporation, general
partnership, limited partnership, joint venture, proprietorship or other
business organization.
"PFIZER Confidential Information" shall mean information which has
prior to the date hereof been or which at any time hereafter is disclosed
in writing and marked "Confidential" (or if disclosed orally, is reduced to
writing within thirty (30) days of disclosure) directly or indirectly by
PFIZER or by any of its Affiliates or agents or agents of its Affiliates to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ in connection with this Agreement and which relates to the
business of PFIZER, including, without limitation, any information
concerning any Pfizer pharmaceutical compound or any of their intermediates
or the Products.
"Products" shall mean all finished pharmaceutical compositions,
formulations and dosage forms containing as an active ingredient any one of
Darifenacin, Droloxifene, Eletriptan or such other chemical compound as may
be contained in an Additional Product designated by PFIZER pursuant to
Section 2.03.
"Term of this Agreement" shall mean the period from the date hereof
until the expiration of this Agreement in accordance with Section 5.01 or
earlier termination of this Agreement in accordance with Section 5.02.
"Transaction" shall mean one or more related transactions involving
(i) any sale or grant of any rights to a Product (including patent and
trademark licenses), or (ii) any joint venture, co-promotion or similar
relationship involving a Product.
"▇▇▇▇▇▇-▇▇▇▇▇▇▇ Confidential Information" shall mean information which
has prior to the date hereof been or which at any time hereafter is
disclosed in writing and marked "Confidential" (or if disclosed orally, is
reduced to writing within thirty (30) days of disclosure) directly or
indirectly by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or by any of its Affiliates or agents or
agents of its Affiliates to PFIZER in connection with this Agreement and
which relates to the business of ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
ARTICLE II - OPTION RIGHTS AND RELATED OBLIGATIONS
SECTION 2.01 Option Rights. (a) Notice of Anticipated Regulatory
Filing. During the Term of this Agreement, PFIZER shall notify
▇▇▇▇▇▇-▇▇▇▇▇▇▇ at least six months, but no more than nine months, prior to
the date on which PFIZER reasonably anticipates filing a New Drug
Application (hereinafter, "NDA") with the United States Food and Drug
Administration (or, if earlier, filing for regulatory registration in any
of United Kingdom, France, Germany, Italy, Spain or Japan) covering any
Product (such notice to be referred to hereinafter as a "Notice of
Anticipated Regulatory Filing"). At the same time Pfizer provides a Notice
of Anticipated Regulatory Filing PFIZER shall provide to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ an
executive summary (hereinafter "Executive Summary") describing what PFIZER
reasonably believes to be pertinent safety and efficacy data for such
Product (which PFIZER may legally disclose) to assist ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in
making a preliminary scientific assessment of the applicable Product. All
information included in the Executive Summary shall be considered PFIZER
Confidential Information subject to the provisions of Article IV.
(b) Option. PFIZER grants to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ an option (hereinafter,
the "Option") to negotiate with PFIZER the terms and conditions of a
Co-Promotion Agreement relating to the Product that was the subject of a
Notice of Anticipated Regulatory Filing as follows:
(i) The Option may be exercised by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ by notifying PFIZER
of its intent to exercise the Option at any time during the period
beginning with the date of the Notice of Anticipated Regulatory Filing and
ending thirty (30) days thereafter (hereinafter, the "Option Period");
(ii) If ▇▇▇▇▇▇-▇▇▇▇▇▇▇ exercises the Option during the Option Period,
a negotiation period (hereinafter, a "Negotiation Period") shall commence,
beginning on the date the Option is exercised and ending on the earliest of
(x) the date a Co-Promotion Agreement is entered into by the parties, (y)
the date the Negotiation Period is terminated by the mutual agreement of
the parties, or (z) ninety (90) days after the date of the Notice of
Anticipated Regulatory Filing. During the Negotiation Period, the parties
shall negotiate in good faith regarding the entering into of a Co-Promotion
Agreement.
(iii) If ▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not exercise the Option during the
Option Period with respect to a given Product or no Co-Promotion Agreement
is entered into regarding such Product during the Negotiation Period
despite good faith negotiations by both parties, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have
no further rights, and PFIZER shall have no further obligations, with
respect to such Product pursuant to this Agreement, and PFIZER shall be
free to enter into any Transaction or take any other action with respect to
such Product as PFIZER may determine in its sole and absolute discretion.
(c) Notice of Transaction.
(i) During the Term of this Agreement at such time or times as
PFIZER, in its reasonable discretion, believes that there is a reasonable
likelihood that PFIZER will enter into a Transaction with any third party,
PFIZER shall notify ▇▇▇▇▇▇-▇▇▇▇▇▇▇ (such notice to be referred to
hereinafter as a "Notice of Transaction"). PFIZER in a Notice of
Transaction shall identify the Product involved, but shall not be required
to disclose any other details of the proposed Transaction. At the same time
of the giving of the Notice of Transaction, PFIZER shall provide to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ an Executive Summary regarding the Product identified in the
Notice of Transaction.
(ii) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall notify PFIZER of its desire to negotiate a
Co-Promotion Agreement with respect to a Product that is the subject of a
Notice of Transaction within thirty (30) days of a Notice of Transaction.
If within such period ▇▇▇▇▇▇-▇▇▇▇▇▇▇ notifies PFIZER that it desires to
negotiate such a Co-Promotion Agreement, a Negotiation Period shall take
place as described in Section 2.01(c)(iii). If ▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not
notify PFIZER that it desires to negotiate such a Co-Promotion Agreement or
no Co-Promotion Agreement is entered into regarding such Product during the
Negotiation Period, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have no further rights, and PFIZER
shall have no further obligations, with respect to such Product pursuant to
this Section 2.01, and PFIZER shall be free to enter into any Transaction
or take any other action with respect to such Product in PFIZER's sole and
absolute discretion; provided however that, if PFIZER shall not have
entered into the Transaction contemplated by the Notice of Transaction or
any other Transaction involving such Product within one (1) year following
the date of such Notice of Transaction and this Agreement is then still in
effect, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have all rights and PFIZER shall have all
obligations pursuant to Section 2.01 with respect to such Product.
(iii) The term of the Negotiation Period described in 2.01(c)(ii)
shall begin as of the date of the Notice of Transaction and end on the
earliest of (x) the date a definitive Co-Promotion Agreement is entered
into by the parties, (y) the date the Negotiation Period is terminated by
the mutual agreement of the parties, or (z) seventy-five (75) days after
the date of the Notice of Transaction. During such Negotiation Period, the
parties shall negotiate in good faith regarding the entering into of a
Co-Promotion Agreement.
(d) Notice of Interest.
(i) At any time during the Term of this Agreement ▇▇▇▇▇▇-▇▇▇▇▇▇▇
shall have the right to notify PFIZER of its interest in negotiating a
Co-Promotion Agreement for a Product (such notice to be referred to
hereinafter as a "Notice of Interest"). ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in a Notice of
Interest shall identify the Product. Within sixty (60) days of receipt of a
Notice of Interest, PFIZER shall provide to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ an Executive
Summary for such Product.
(ii) Upon receipt of a Notice of Interest, a negotiation period
(hereinafter, a "Negotiation Period") shall take place as described in
Section 2.01(d)(iii). If no Co-Promotion Agreement is entered into
regarding such Product during the Negotiation Period, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
have no further rights, and PFIZER shall have no further obligations, with
respect to such Product under this Agreement, and PFIZER shall be free to
enter into any Transaction or take any other action with respect to such
Product as PFIZER may determine in its sole and absolute discretion.
(iii) The term of the Negotiation Period described in 2.01(d)(ii)
shall begin as of the date of the Notice of Interest and end on the
earliest of (x) the date a definitive Co-Promotion Agreement is entered
into by the parties, (y) the date the Negotiation Period is terminated by
the mutual agreement of the parties, or (z) sixty (60) days after
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ receipt of the Executive Summary for the applicable
Product. During such Negotiation Period, the parties shall negotiate in
good faith regarding the entering into of a Co-Promotion Agreement.
(e) Letter of Intent. If during a Negotiation Period under Section
2.01(b), 2.01(c) or 2.01(d), the parties enter into a non-binding letter of
intent containing financial or other business terms acceptable to the
parties regarding a contemplated Co-Promotion Agreement, PFIZER shall
provide to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ reasonable access to all significant safety and
efficacy data regarding the relevant Product. All such data shall be
considered PFIZER Confidential Information subject to the provisions of
Article IV.
(f) Confidentiality of Negotiations. All discussions between the
parties pursuant to this Agreement, including but not limited to any terms
under discussion during any Negotiation Period, shall not be disclosed to
any third party.
SECTION 2.02 Negotiation Period Restriction. During a Negotiation
Period pursuant to Sections 2.01(b), 2.01(c) or 2.01(d), PFIZER shall not
discuss, negotiate or enter into any agreement with any third party to
effect any Transaction relating to a Product that is the subject of the
relevant Notice of Anticipated Regulatory Filing, Notice of Transaction or
Notice of Interest.
SECTION 2.03 Additional Product. In the event that, during the term
of this Agreement, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have no further rights pursuant to
Section 2.01 to any Products containing as an active ingredient
Darifenacin, Droloxifene or Eletriptan as a result of any of the following
circumstances or any combination thereof:
(a) Following a Notice of Anticipated Regulatory Filing, (i)
▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not, pursuant to Section 2.01(b), exercise an option
during an Option Period or (ii) no Co-Promotion Agreement is entered into
during the relevant Negotiation Period; or
(b) Following a Notice of Transaction, (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not
pursuant to Section 2.01(c)(ii) notify PFIZER of its desire to negotiate a
Co-Promotion Agreement or (ii) PFIZER has entered into a Transaction with a
third party regarding the Product that was the subject of such Notice of
Transaction; or
(c) Following a Notice of Interest, no Co-Promotion Agreement is
entered into during the relevant Negotiation Period; or
(d) PFIZER has delivered a Product Notice pursuant to Section 2.05;
then, upon ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ request to PFIZER, PFIZER shall, not less than
sixty days following such request, designate as an additional Product
(hereinafter, "Additional Product") a pharmaceutical product (selected in
PFIZER's sole and absolute discretion) currently under development and for
which PFIZER reasonably believes at such time that, subject to successful
development, will be an important product in major markets. Such
Additional Product shall be treated thereafter for all purposes of this
Agreement as a Product.
SECTION 2.04 No Obligation to Enter into Agreement. The parties
acknowledge and agree that they may fail for any reason whatsoever to enter
into a Co-Promotion Agreement for which they may commence negotiations
under this Agreement, and nothing herein shall obligate either party in any
way to enter into a Co-Promotion Agreement or any other agreement or
understanding relating to any Product. Any decision by a party to enter
into a Co-Promotion Agreement or any other agreement or understanding
relating to any Product shall be in the sole and absolute discretion of
such party. Provided the parties have complied with this Agreement, neither
party shall have any recourse against or liability to the other if the
parties fail to enter into a Co-Promotion Agreement or any other agreement
or understanding relating to any Product as contemplated herein, except for
the PFIZER Payments as set forth in Section 3.01.
SECTION 2.05 Future Development. Nothing herein shall obligate
PFIZER in any way to continue the development of, or to file for regulatory
approval for or to market any Product. Any decision regarding the
development, commercialization, marketing, or regulatory filing with
respect to any Product shall be in PFIZER's sole and absolute discretion.
Notwithstanding the foregoing, PFIZER shall send a notice to ▇▇▇▇▇▇-▇▇▇▇▇▇▇
(a "Product Notice") after Pfizer has determined that it will not pursue
the active development of and/or regulatory filing for a Product.
SECTION 2.06 Time Periods. The parties acknowledge and agree that
the time periods set forth herein are to be strictly complied with and are
essential to the accomplishment of the objectives of the parties in
entering into this Agreement.
SECTION 2.07 Clinical Development Reports. During the Term of this
Agreement, PFIZER shall provide semi-annual reports to ▇▇▇▇▇▇-▇▇▇▇▇▇▇
regarding the progress of clinical development programs for Products to
which ▇▇▇▇▇▇-▇▇▇▇▇▇▇ continues to have rights pursuant to Section 2.01.
ARTICLE III - PAYMENTS
SECTION 3.01 PFIZER Payments. In the event this Option Agreement is
still in effect and no Co-Promotion Agreement has been entered into between
the parties by the end of Agreement Year Five (as defined and determined
under the Collaboration Agreement), PFIZER shall pay to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ up
to a total of thirty million dollars ($30,000,000) as follows: six million
dollars ($6,000,000) shall be payable on the first day of Agreement Year
Six and six million dollars ($6-1,000,000) shall be payable on the first
day of each of Agreement Years Seven, Eight, Nine and Ten, respectively,
provided that this Agreement is still in effect on the date such payment is
due. It is understood that any Co-Promotion Agreement which may be entered
into, at any time after any payments have been made under this Section
3.01, shall provide that such payments be refunded to PFIZER by
▇▇▇▇▇▇-▇▇▇▇▇▇▇ as part of such Co-Promotion Agreement. Except as
specifically set forth in the preceding sentence, it is understood that all
payments made under this Section 3.01 shall be nonrefundable.
ARTICLE IV - CONFIDENTIAL INFORMATION
SECTION 4.01 Confidential Information. Each of PFIZER and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall keep all Confidential Information received from the
other with the same degree of care it maintains the confidentiality of its
own confidential information. Each party shall not use such Confidential
Information for any purpose other than in performance of this Agreement or
disclose the same to any other Person other than to such of its employees,
agents, advisers, representatives, consultants and counsel who have a need
to know such Confidential Information to implement the terms of this
Agreement; provided, however, any such consultants shall be subject to
confidentiality obligations consistent with those provided herein. The
party receiving the Confidential Information (the "Receiving Party") shall
advise any employee, agent, adviser, representative, consultant or counsel
who receives such Confidential Information of the confidential nature
thereof and of the obligations contained in this Agreement relating
thereto, and the Receiving Party shall ensure that all such employees,
agents, advisers, representatives, consultants and counsel comply with such
obligations as if they had been a party hereto. Upon termination of this
Agreement, or earlier if so requested in writing by the party disclosing
the Confidential Information (the "Disclosing Party") the Receiving Party
shall use reasonable efforts to return or destroy all documents, tapes or
other media containing Confidential Information in its possession, except
that the Receiving Party may keep one copy of Confidential Information in
the Legal Department files of the Receiving Party, solely for archival
purposes. Such archival copy shall be deemed to be the property of the
Disclosing Party, and shall not be copied or distributed in any manner
without the express prior written permission of the Disclosing Party;
provided, however, that the Receiving Party shall have the right to
disclose any Confidential Information provided hereunder if, in the
reasonable opinion of the Receiving Party's legal counsel, such disclosure
is necessary to comply with the terms of this Agreement, or the
requirements of any Law. The Receiving Party shall notify the Disclosing
Party of the Receiving Party's intent to make such disclosure of
Confidential Information pursuant to the proviso of the preceding sentence
sufficiently prior to making such disclosure so as to allow the Disclosing
Party adequate time to take whatever action the Disclosing Party may deem
to be appropriate to protect the confidentiality of the information.
SECTION 4.02 Exceptions. Each of PFIZER and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall be
relieved of any and all of the obligations of Section 4.01 with respect to
a specific item of Confidential Information if:
(a) such Confidential Information is in the public domain at the time
of disclosure hereunder or subsequently comes within the public domain
through no fault or action of the Receiving Party or any of its Affiliates;
or
(b) such Confidential Information is in the possession or control of
the Receiving Party or any of its Affiliates at the time of disclosure by
or on behalf of the Disclosing Party or is independently discovered, after
the date of disclosure, by the Receiving Party or any of its Affiliates
without the aid, application or use of the Confidential Information, in
each such case as evidenced by written records; or
(c) such Confidential Information is obtained by the Receiving Party
from any third party not in violation of any confidentiality obligation to
the Disclosing Party.
SECTION 4.03 Survival. The obligations and prohibitions contained
in this Article IV shall survive the expiration or termination of this
Agreement for a period of five (5) years.
ARTICLE V - TERM AND TERMINATION
SECTION 5.01 Term. Unless earlier terminated pursuant to Section
5.02 or as otherwise mutually agreed to by the parties, this Agreement
shall expire at the end of Agreement Year Ten (as defined and determined
under the Collaboration Agreement).
SECTION 5.02 Termination of Agreement.
(a) This Agreement shall automatically terminate without any further
notice from either party if any of the following events has occurred:
(i) Any Co-Promotion Agreement contemplated hereunder is entered into
between the parties; or
(ii) PFIZER has paid to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ thirty million dollars
($30,000,000) pursuant to Section 3.01; or
(iii) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has given notice to PFIZER of the termination
of PFIZER's co-promotion rights pursuant to Sections 14.02(a), 14.02(b) or
14.02(c) of the Collaboration Agreement; or
(iv) The Collaboration Agreement terminates for any reason, other than
PFIZER's material breach or PFIZER's termination pursuant to Section
14.03(a) of the Collaboration Agreement.
(b) If either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or PFIZER materially breaches or
defaults in the performance of any of the provisions of this Agreement, and
such material breach or default is not cured within sixty (60) days after
the giving of notice by the other party specifying such breach or default,
the other party shall have the right to terminate this Agreement forthwith.
(c) Promptly after a change in Control ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall notify
PFIZER thereof, and PFIZER shall have the right, at PFIZER's discretion,
within thirty (30) days of said ▇▇▇▇▇▇-▇▇▇▇▇▇▇ notice to pay to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ thirty million dollars ($30,000,000) less all amounts
previously paid to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ pursuant to Section 3.01 and to terminate
this Agreement immediately thereafter.
(d) If PFIZER terminates the Collaboration Agreement under Section
14.03(a) thereof, PFIZER shall have the right, at PFIZER's discretion,
within thirty (30) days after such termination of the Collaboration
Agreement to pay to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ thirty million dollars ($30,000,000)
less all amounts previously paid to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ pursuant to Section 3.01
and to terminate this Agreement immediately thereafter.
SECTION 5.03 No Prejudice to Rights. Termination of this Agreement
shall be without prejudice to either party's right to obtain performance of
any obligations provided for in this Agreement which survive termination by
their express terms. Unless any provisions herein expressly survive
termination, the parties understand and agree that all obligations
hereunder shall terminate upon termination of this Agreement without any
liability to the other party.
SECTION 5.04 Return of Confidential Information. Subject to the
terms of Section 4.01, upon termination of this Agreement, ▇▇▇▇▇▇-▇▇▇▇▇▇▇
shall within thirty (30) days return to PFIZER all tangible PFIZER
Confidential Information provided to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ by or on behalf of
PFIZER pursuant to this Agreement and PFIZER shall within thirty (30) days
return to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ all tangible ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Confidential
Information provided to PFIZER by or on behalf of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ pursuant
to this Agreement.
ARTICLE VI - MISCELLANEOUS
SECTION 6.01 PFIZER Representations and Warranties.
(a) PFIZER has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement by PFIZER has been
duly and validly authorized and approved by proper corporate action on the
part of PFIZER, and PFIZER has taken all other action required by law, its
certificate of incorporation, by-laws or any agreement to which it is a
party or to which it may be subject, required to authorize such execution,
delivery and performance. Assuming due authorization, execution and
delivery on the part of PFIZER, this Agreement constitutes a legal, valid
and binding obligation of PFIZER, enforceable against PFIZER in accordance
with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws of general application relating to creditors' rights.
(b) As of the date hereof, the execution and delivery of this
Agreement by PFIZER and the performance by PFIZER contemplated hereunder
will not violate any Laws or any order of any court or other Governmental
or Regulatory Authority.
(c) Subject to Section 6.01A, as of the date hereof, neither the
execution and delivery of this Agreement nor the performance hereof by
PFIZER requires PFIZER to obtain any permits, authorizations or consents
from any Governmental or Regulatory Authority or from any other Person, and
such execution, delivery and performance will not result in the breach of
or give rise to any termination of any agreement or contract to which
PFIZER may be a party and which relates to the Products.
(d) As of the date hereof, there are no actions, suits, proceedings
or claims, pending against PFIZER or any of its Affiliates, or, to the
knowledge of PFIZER, threatened against PFIZER or any of its Affiliates, at
law or in equity, or before or by any court or Governmental or Regulatory
Authority relating to the Products or any of the matters contemplated under
this Agreement. To the knowledge of PFIZER, there are no investigations,
pending or threatened against PFIZER or any of its Affiliates, at law or in
equity, or before or by any Governmental or Regulatory Authority relating
to the Products or any of the matters contemplated under this Agreement.
(e) As of the date hereof, to the best of PFIZER's knowledge, based
solely upon the actual knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, PFIZER's chief
patent counsel (located in New York, New York), without due inquiry, the
manufacture, use or sale of Products containing Darifenacin, Droloxifene or
Eletriptan would not infringe any patents of third parties; provided,
however, the foregoing representation in the case of Droloxifene is limited
to clinical indications for osteoporosis and breast cancer.
(f) PFIZER acknowledges that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ is relying, and is
entitled to rely, on the foregoing representations and warranties.
SECTION 6.01A Droloxifene. PFIZER has disclosed to ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ acknowledges, that PFIZER's rights to Droloxifene are
derived from, and are subject to, the terms of a license agreement with
▇▇▇▇▇▇ Pharma GmbH and ▇▇▇▇▇▇ Pharma & Co. Said license agreement
provides, inter alia, that: (i) PFIZER has no rights to sell Droloxifene in
Austria, Ireland or Switzerland, (ii) PFIZER's rights to sell Droloxifene
in Germany are limited to certain indications, and (iii) the entry by
PFIZER into a Co-Promotion Agreement with respect to Droloxifene for
countries (other than the United States) may require prior consultation by
PFIZER with ▇▇▇▇▇▇ and for Germany may be restricted or prohibited.
SECTION 6.02 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Representations and Warranties.
(a) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has the corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, and
the execution, delivery and performance of this Agreement by ▇▇▇▇▇▇-▇▇▇▇▇▇▇
has been duly and validly authorized and approved by proper corporate
action on the part of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has taken all
other action required by law, its certificate of incorporation, by-laws or
any agreement to which it is a party or to which it may be subject,
required to authorize such execution, delivery and performance. Assuming
due authorization, execution and delivery on the part of PFIZER, this
Agreement constitutes a legal, valid and binding obligation of
▇▇▇▇▇▇-▇▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in accordance with its
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws of general
application relating to creditors' rights.
(b) As of the date hereof, the execution and delivery of this
Agreement by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and the performance by ▇▇▇▇▇▇-▇▇▇▇▇▇▇
contemplated hereunder will not violate any Laws or any order of any court
or other Governmental or Regulatory Authority.
(c) As of the date hereof, neither the execution and delivery of this
Agreement nor the performance hereof by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ requires
▇▇▇▇▇▇-▇▇▇▇▇▇▇ to obtain any permits, authorizations or consents from any
Governmental or Regulatory Authority or from any other Person, and such
execution, delivery and performance will not result in the breach of or
give rise to any termination of any agreement or contract to which
▇▇▇▇▇▇-▇▇▇▇▇▇▇ may be a party and which relates to the Products.
(d) As of the date hereof, there are no actions, suits, proceedings
or claims, pending against ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Affiliates, or, to
the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, threatened against ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any
of its Affiliates, at law or in equity, or before or by any court or
Governmental or Regulatory Authority relating to any of the matters
contemplated under this Agreement. To the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
there are no investigations, pending or threatened against ▇▇▇▇▇▇-▇▇▇▇▇▇▇
or any of its Affiliates, at law or in equity, or before or by any
Governmental or Regulatory Authority relating to any of the matters
contemplated under this Agreement.
(e) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ acknowledges that PFIZER is relying, and is
entitled to rely, on the foregoing representations and warranties.
SECTION 6.03 Relationship of the Parties. Each party shall bear its
own costs incurred in the performance of its obligations hereunder without
charge or expense to the other. Neither party shall have any responsibility
for the hiring, termination or compensation of the other party's employees
or for any employee benefits of such employee. No employee or
representative of a party shall have any authority to bind or obligate the
other party to this Agreement for any sum or in any manner whatsoever, or
to create or impose any contractual or other liability on the other party
without said party's approval. For all purposes, and notwithstanding any
other provision of this Agreement to the contrary, PFIZER's legal
relationship under this Agreement to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall be that of
independent contractor. Nothing in this Agreement shall be construed to
establish a relationship of co-partners or joint venturers between the
parties.
SECTION 6.04 Force Majeure. The occurrence of an event which
materially interferes with the ability of a party to perform its
obligations or duties hereunder which is not within the reasonable control
of the party affected, not due to malfeasance, and which could not with the
exercise of due diligence have been avoided ("Force Majeure"), including,
but not limited to, fire, accident, labor difficulty, strike, riot, civil
commotion, act of God, delay or errors by shipping companies or change in
Law, shall not excuse such party from the performance of its obligations or
duties under this Agreement, but shall merely suspend such performance
during the continuation of Force Majeure.
SECTION 6.05 Confidentiality; Public Announcements.
(a) Each party shall keep the terms of this Agreement confidential
and shall not disclose the same to any third party other than (i) by
agreement of the parties hereto, or (ii) as required by Law or stock
exchange regulation or an order of a competent court; provided that prior
to disclosure pursuant to (ii) above, the disclosing party shall notify the
nondisclosing party sufficiently prior to making such disclosure so as to
allow the nondisclosing party adequate time to take whatever action it may
deem to be appropriate to protect the confidentiality of the information.
(b) Neither party shall make any press release or other public
announcement or other disclosure to third parties relating to this
Agreement without the prior consent of the other party, which consent shall
not be unreasonably withheld, except where required by applicable Law;
provided that prior to disclosure, the disclosing party shall notify the
nondisclosing party sufficiently prior to making such disclosure so as to
allow the nondisclosing party adequate time to take whatever action it may
deem to be appropriate to protect the confidentiality of the information.
SECTION 6.06 Choice of Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York other than
those provisions governing conflicts of law.
SECTION 6.07 Assignment. This Agreement may not be assigned by
either party without the prior written consent of the other party; provided
that each party shall have the right to assign its rights and obligations
under this Agreement to (a) any third party successor to all or
substantially all of (i) its entire business or (ii) its pharmaceutical
business without the consent of the other party, subject however to
PFIZER's right to terminate this Agreement pursuant to Section 5.02(c), or
(b) its Affiliate or Affiliates who shall be substituted directly in whole
or in part for it hereunder; provided that the assignor shall be
responsible for the performance of its Affiliate(s) assignee(s) hereunder.
This Agreement shall be binding upon, and, subject to the terms of the
foregoing sentence, inure to the benefit of the parties hereto, their
successors, legal representatives and assigns.
SECTION 6.08 Notices. All demands, notices, consents, approvals,
reports, requests and other communications hereunder must be in writing and
will be deemed to have been duly given only if delivered personally or by
facsimile transmission or by mail (first class, postage prepaid) to the
parties at the following addresses or facsimile numbers:
▇▇▇▇▇▇-▇▇▇▇▇▇▇:
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President, Pharmaceutical Sector
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Vice President and General Counsel
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
PFIZER:
Pfizer Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President, U.S. Pharmaceutical Group
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Senior Vice President and General Counsel
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the addressee shall have last furnished in
writing in accord with this provision to the addressor.
SECTION 6.9 Limitation of Liability. Notwithstanding anything to
the contrary in this Agreement, neither party shall be liable to the other
for any incidental, indirect or consequential damages.
SECTION 6.10 Headings. The headings used in this Agreement have
been inserted for convenience of reference only and do not define or limit
the provisions hereof.
SECTION 6.11 Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party or parties waiving
such term or condition. No waiver by any party of any term or condition of
this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement
or by Law or otherwise afforded, will be cumulative and not alternative.
SECTION 6.12 Entire Agreement. This Agreement together with the
Collaboration Agreement, the International Agreements and the Confidential
Disclosure Agreement, dated March 4, 1996, between ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
PFIZER (the "Confidential Disclosure Agreement") constitutes the entire
agreement between the parties hereto with respect to the within subject
matter and supersedes all previous agreements, whether written or oral. It
is agreed that (i) Article IV of this Agreement shall govern the protection
of Confidential Information disclosed pursuant to this Agreement and (ii)
the matters referred to in Paragraph 8 and Attachment A of the Confidential
Disclosure Agreement shall remain in full force and effect pursuant to the
terms thereof. This Agreement may be altered, amended or changed only by a
writing making specific reference to this Agreement and signed by duly
authorized representatives of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and PFIZER.
SECTION 6.13 No License. Nothing in this Agreement shall be deemed
to constitute the grant to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ of any license or other right to
or in respect of any Product except as expressly set forth herein.
SECTION 6.14 Third Party Beneficiaries. None of the provisions of
this Agreement shall be for the benefit of or enforceable by any third
party, including, without limitation, any creditor of either party hereto.
No such third party shall obtain any right under any provision of this
Agreement or shall by reasons of any such provision make any claim in
respect of any debt, liability or obligation (or otherwise) against either
party hereto.
SECTION 6.15 Counterparts. This Agreement may be executed in any
two or more counterparts, each of which, when executed, shall be deemed to
be an original and all of which together shall constitute one and the same
document.
IN WITNESS WHEREOF, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and PFIZER, by their duly
authorized officers, have executed this Agreement as of the date first
written above.
▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY PFIZER INC.
/s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇.▇. de ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Operating Officer Vice President