1
EXHIBIT 10.95
===============================================================================
ASSET PURCHASE AGREEMENT
by and between
MEDICIS PHARMACEUTICAL CORPORATION
and
BIOGLAN PHARMA PLC
-------------------------------
Dated as of June 29, 1999
-------------------------------
===============================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS............................................................................................. 1
ARTICLE II SALE AND PURCHASE OF ASSETS; PURCHASE PRICE; ASSUMPTION OF OBLIGATIONS................................. 4
Section 2.1 Sale and Purchase of Assets..................................................................... 4
Section 2.2 Purchase Price.................................................................................. 5
Section 2.3 Deferred Purchase Payments...................................................................... 5
Section 2.4 Payments........................................................................................ 6
Section 2.5 Records and Audit............................................................................... 6
Section 2.6 Taxes........................................................................................... 7
Section 2.7 Currency Conversion............................................................................. 7
Section 2.8 Form of Payment................................................................................. 7
Section 2.9 Assumption of Obligations....................................................................... 7
Section 2.10 Excluded Assets and Liabilities............................................................... 8
ARTICLE III CLOSING............................................................................................... 8
Section 3.1 Closing......................................................................................... 8
Section 3.2 Closing Deliveries of Medicis................................................................... 8
Section 3.3 Closing Deliveries of Bioglan................................................................... 9
ARTICLE IV CONDITIONS TO CLOSING................................................................................. 10
Section 4.1 Conditions to Bioglan's Obligations............................................................ 10
Section 4.2 Conditions to Medicis' Obligations............................................................. 11
ARTICLE V OTHER MATTERS.......................................................................................... 11
Section 5.1 Use of Know-How................................................................................ 11
Section 5.2 New Product Development........................................................................ 12
Section 5.3 Risks Associated With the Products............................................................. 12
Section 5.4 Agreement to Distribute........................................................................ 12
Section 5.5 Notification of Customers...................................................................... 12
Section 5.6 Customer Orders................................................................................ 12
Section 5.7 Accounts Receivable............................................................................ 12
Section 5.8 Product Registration........................................................................... 13
Section 5.9 Recall and Return of Products.................................................................. 14
Section 5.10 Enforcement of GenDerm Warranties.............................................................. 14
Section 5.11 Similar Marks.................................................................................. 14
Section 5.12 GenDerm Earnout................................................................................ 15
Section 5.13 Payment of Royalties........................................................................... 15
Section 5.14 Title to Assets................................................................................ 15
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................................ 15
Section 6.1 Representations and Warranties of Medicis...................................................... 15
Section 6.2 Representations and Warranties of Bioglan...................................................... 18
3
ARTICLE VII CONDUCT PRIOR TO CLOSING............................................................................. 20
Section 7.1 Cooperation.................................................................................... 20
Section 7.2 Conduct of Business by Medicis................................................................. 20
Section 7.3 Conduct of Private Label Litigation............................................................ 20
Section 7.4 Review......................................................................................... 20
Section 7.5 Shareholder's Meeting.......................................................................... 20
Section 7.6 Validation Claims.............................................................................. 20
ARTICLE VIII INDEMNIFICATION..................................................................................... 21
Section 8.1 Indemnification by Medicis..................................................................... 21
Section 8.2 Indemnification by Bioglan..................................................................... 21
Section 8.3 Procedure for Indemnification.................................................................. 22
ARTICLE IX GENERAL PROVISIONS.................................................................................... 23
Section 9.1 Survival of Representations and Warranties..................................................... 23
Section 9.2 Notices.:...................................................................................... 23
Section 9.3 Confidential Information....................................................................... 23
Section 9.4 Amendment...................................................................................... 24
Section 9.5 Binding Effect................................................................................. 24
Section 9.6 Press Releases................................................................................. 24
Section 9.7 Expenses; Taxes................................................................................ 25
Section 9.8 Headings....................................................................................... 25
Section 9.9 Entire Agreement............................................................................... 25
Section 9.10 Waiver......................................................................................... 25
Section 9.11 Severability................................................................................... 25
Section 9.12 Termination.................................................................................... 25
Section 9.13 Governing Law.................................................................................. 26
Section 9.14 Counterparts................................................................................... 26
Section 9.15 Shareholder Approval........................................................................... 26
ARTICLE X ARBITRATION............................................................................................ 26
Section 10.1 Submission to Arbitration.................................................................... 26
Section 10.2 Arbitrator and Rules of Arbitration.......................................................... 26
Section 10.3 Selection of Arbitrators..................................................................... 26
Section 10.4 Procedure.................................................................................... 27
Section 10.5 Arbitration Costs............................................................................ 27
ARTICLE XI DERMASTICK............................................................................................ 28
Section 11.1 Assignment of Dermastick License............................................................. 28
Section 11.2 Consideration................................................................................ 28
Section 11.3 Offset....................................................................................... 28
Section 11.4 Warranties................................................................................... 28
Section 11.5 Form of Assignment........................................................................... 28
Section 11.6 Deliveries................................................................................... 28
ii
4
SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1 License Agreements
Schedule 2 Trademarks
Schedule 3 Deferred Payment Assets
Schedule 4 Territory
Schedule 5 Other Agreements
Schedule 6 Previous Agreements Products
EXHIBITS
Exhibit A Form of License Assignment
Exhibit B Form of Trademark Assignment
Exhibit C Form of ▇▇▇▇ of Sale
Exhibit D Form of Transition Services Agreement
Exhibit E Form of Canadian License Agreement
Exhibit F Form of License Agreement
Exhibit G Form of Promissory Note
Exhibit H Form of Security Agreement
Exhibit I Form of License Termination
Exhibit J Form of Trademark Security Agreement
iii
5
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement") dated as of this 29th day of June,
1999, by and between MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation
("Medicis"),and BIOGLAN PHARMA PLC, a company incorporated under the laws of
England and Wales under company registration number 1779870 ("Bioglan").
W I T N E S S E T H:
WHEREAS, Medicis or its Affiliate is the licensee (or, where
stipulated, a sublicensee) under the license agreements set forth in Schedule 1
hereto (collectively, the "License Agreements"); and
WHEREAS, Medicis or its Affiliate desires to sell to Bioglan and
Bioglan desires to purchase from Medicis or its Affiliate all of Medicis' or its
Affiliate's right, title and interest in, to and under the Purchased Assets (as
defined) on the terms and conditions set forth below; and
WHEREAS, Bioglan AB, an Affiliate of Bioglan, desires to grant to
Medicis and Medicis desires to accept from Bioglan AB, the License
Agreement on the terms and conditions set forth below; and
WHEREAS, in connection with and as a condition to the transactions
contemplated hereby, Bioglan and The Exorex Company, LLC (a 51% owned Affiliate
of Medicis) will enter into and consummate a Purchase Agreement (the "Exorex
Asset Purchase Agreement") pursuant to which Bioglan will acquire all of the
assets and liabilities as of June 1, 1999 of The Exorex Company, LLC.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
In this Agreement the following terms shall have the following
meanings:
"Affiliate" means any person, firm, corporation or other business
entity, directly or indirectly controlling, controlled by or under direct or
indirect common control with another person. A person shall be deemed to control
another person if such person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such entity,
whether through ownership of voting securities, by contract or otherwise.
"Authorizations" means Medicis' or its Affiliates' authorizations
relating to the Products, where such are required, from the U.S. Food and Drug
Administration ("FDA") and the right to refer to the data contained therein and
copies of all documents submitted and correspondence between Medicis or its
Affiliates and the FDA with respect to the Products.
6
"Contribution Margin" means the amount equal to Net Sales (assuming for
purposes of Contribution Margin only that the definition of Net Sales relates to
Medicis or its Affiliate) less (i) all reasonable charges from June 1, 1999 to
the Closing for overhead directly associated with the Products (which costs
shall not exceed US $500,000) and the direct and indirect cost of goods (absent
the cost of Inventory paid at the Closing Date by Bioglan), and (ii) returns
from the period from June 1, 1999 to the Closing.
"Dermastick License" means the license by and between Bioglan AB and
GenDerm Corporation dated January 31, 1998 relating to a topical steroid
preparation known as `Dermastick'.
"Disclosure Letter" means the disclosure letter as of the date hereof
from Medicis to Bioglan relating to the representations and warranties of
Medicis set out in Section 6.1.
"GenDerm Warranties" means the representations and warranties which
relate to the Products as are contained in Section 3 of the Merger Agreement.
"Improvements" means any findings, discoveries, inventions, additions,
modifications, formulations or changes made by Bioglan or its Affiliates or
sublicensees during the term specified in Section 2.3 which relate to the
products set forth in Schedule 3 including, without, limitation, new or improved
methods of administration, improved side effect profile, new medical indications
and improvements in the manufacturing process. The term "Improvements" shall not
include findings, discoveries or inventions which are developed independently by
Bioglan or its agents and are not derived from or based on the Products or
Know-How.
"Know-How" means the information known to Medicis or its Affiliate
relating solely and uniquely to the formulae, manufacturing processes, customer
lists, marketing and advertising rights and promotional materials, technology
and testing data for the Products including, without limitation, all chemical,
pharmacological, toxicological, clinical, assay, and control data relating
solely to the Products, if any.
"Merger Agreement" means the Merger Agreement by and among GenDerm
Corporation, Medicis and Medicis Acquisition Corporation dated as of December 1,
1997.
"Net Sales" means the gross amount invoiced by Bioglan, its Affiliates
and/or its sublicensees to third parties on all sales of Products and any
improvements (as defined in the respective License Agreements), less deductions
for: (i) sales taxes, value-added taxes and excise taxes, tariffs, import or
export duties, and duties paid or allowed by a selling party and any other
governmental charges imposed upon the import, use or sale of such Products
(except income taxes of Bioglan and sublicensees) which are included in the
gross amount invoiced; (ii) allowed customary trade and quantity discounts (such
discounts not to exceed 10% of the sales price) and sales discounts (as defined
in accordance with GAAP, such discounts not to exceed 5% of the sales price);
(iii) transportation, bulk packaging, handling and freight charges (such charges
not to exceed 3% of the sales price) and reasonable and customary insurance
where such are separately stated as part of the sales price and are included in
the gross amount invoiced; and (iv) allowances and credits to its Affiliates or
sublicensees which shall be excluded from the computation of Net Sales, but Net
Sales shall include subsequent sales to third parties by such
2
7
Affiliates or sublicensees. For purposes of determining Net Sales, a sale shall
be deemed to have occurred when the Products have been shipped by Bioglan, its
Affiliates or a sublicensee.
"Previous Agreements" means collectively the Asset Purchase Agreement
by and between Medicis and Bioglan dated as of January 31, 1999 and the
Trademark License Agreement and Option to Purchase by and between Medicis and
Bioglan dated March 24, 1999.
"Previous Agreements Products" means the pharmaceutical products listed
in Schedule 6 and referred to in the Previous Agreements.
"Products" means each of the pharmaceutical products which are subject
to the License Agreements.
"Trademarks" means the trademarks and tradenames (whether registered or
unregistered) listed in Schedule 2 (other than the rights to such trademarks in
Canada which shall be retained by Medicis) hereto together with the goodwill
symbolized by such trademarks and tradenames.
"Warranties" means the warranties and representations of Medicis set
out in Section 6.1.
The following terms have the meanings defined for such terms in the
Sections set forth below:
Term Section
---- -------
Agreement............................................................................................. Recitals
Arbitrator............................................................................................ 2.5
Assumed Liabilities................................................................................... 2.9
Average Exchange Rate................................................................................. 2.7
Award................................................................................................. 10.4
Base Purchase Price................................................................................... 2.2(a)
Basket................................................................................................ 8.3(e)
▇▇▇▇ of Sale.......................................................................................... 3.2(c)
Bioglan............................................................................................... Recitals
Branded Litigation.................................................................................... 2.10
Canadian License Agreement............................................................................ 3.2(h)
Chemsyn Agreement..................................................................................... 7.6
Closing............................................................................................... 3.1
Closing Date.......................................................................................... 3.1
Deferred Payment Assets............................................................................... 2.3
Deferred Purchase Payments............................................................................ 2.3
Deposit............................................................................................... 2.2(b)
Exorex Asset Purchase Agreement....................................................................... Recitals
GAAP.................................................................................................. 6.1(f)
Hearing............................................................................................... 10.4
HSR Act............................................................................................... 4.1(d)
Indemnified Party..................................................................................... 8.3(a)
Indemnifying Party.................................................................................... 8.3(a)
Inventory............................................................................................. 2.1(c)
3
8
Joint Notice.......................................................................................... 5.5
License Agreements.................................................................................... Recitals
License Termination................................................................................... 4.1(g)
Losing Party.......................................................................................... 10.5
Losses................................................................................................ 8.1
Material Adverse Effect............................................................................... 6.1(c)
Medical Affairs Liaison............................................................................... 5.8(d)
Medicis............................................................................................... Recitals
License Agreement............................................................................. 3.2(i)
New Authorizations.................................................................................... 5.8(a)
Private Label Litigation.............................................................................. 2.9
Prevailing Interest Rate.............................................................................. 2.5
Promissory Note....................................................................................... 2.2(b)
Purchased Assets...................................................................................... 2.1
Required Consents..................................................................................... 4.1(e)
Security Agreement.................................................................................... 3.2(k)
Successful Party...................................................................................... 10.5
Territory............................................................................................. 2.3
Trademark Security Agreement.......................................................................... 3.2(l)
Transition Services Agreement......................................................................... 3.2(d)
ARTICLE II
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE; ASSUMPTION OF OBLIGATIONS
Section 2.1 Sale and Purchase of Assets. Subject to the terms and
conditions set forth herein, and in reliance upon the representations and
warranties contained herein, Medicis will (or will cause its relevant Affiliate
to) sell, assign, convey, transfer and deliver to Bioglan or to the nominated
Affiliate of Bioglan, and Bioglan will purchase and acquire from Medicis or its
Affiliate all of Medicis' or its Affiliate's right, title and interest in, to
and under the following assets:
(a) License Agreements. Each of the License Agreements and the right to
license the formulation of Lincoln Ventures, Inc. as it exists as of the date
hereof with respect to Theraplex pursuant to that letter dated December 12, 1988
from Medicis to Lincoln Ventures, Inc. so long as Bioglan fulfills its
obligation to pay Lincoln Ventures, Inc. the 1.75% royalty rate of net sales of
Theraplex in the United States or other countries;
(b) Trademarks, Know-How and Authorizations. The Trademarks, Know-How
and Authorizations;
(c) Inventory. All inventory (the "Inventory") of the Products as of
June 1, 1999 with a remaining shelf life as of June 1, 1999 of no less than
twelve (12) months;
(d) Contribution Margin. An amount equal to the Contribution Margin to
be paid pursuant to the Transition Services Agreement;
4
9
(e) Extension of Territory. An extension to the licensed territories
set forth in the Previous Agreements in respect of the Previous Agreements
Products as set forth on Schedule 6 with respect to the territories specified on
Schedule 6; and
(f) Litigation. Subject to the provisions of Section 7.3, any benefits
and settlements relating to the Private Label Litigation and any non-financial
benefits relating to the Branded Litigation (each as set forth and described as
such in the Disclosure Letter) accruing after the Closing Date.
The assets to be sold, assigned, conveyed, transferred and delivered to
Bioglan by Medicis pursuant to this Agreement are herein collectively referred
to as the "Purchased Assets."
Section 2.2 Purchase Price.
(a) In consideration for the sale, assignment, conveyance, transfer and
delivery of the Purchased Assets hereunder and all of the assets and liabilities
as of June 1, 1999 of The Exorex Company, LLC under the Exorex Asset Purchase
Agreement, Bioglan will (i) pay to Medicis the net sum of United States Forty
Million Dollars (US $40,000,000), exclusive of any value added taxes (the "Base
Purchase Price"); Bioglan AB is also granting to Medicis a product license,
valued by Bioglan at ), for the product which
and Medicis will
evaluate each component of the overall transaction individually and
independently from Bioglan based on its own criteria and its own accounting
policies, and Bioglan will accordingly cause its Affiliate Bioglan AB to grant
the Micanol License Agreement to Medicis, (ii) assume the Assumed Liabilities,
and (iii) pay to Medicis an amount equal to Medicis' cost in the Inventory.
(b) United States Nine Hundred Thousand Dollars (US $900,000) of the
Base Purchase Price (the "Deposit") shall be payable to Medicis upon the
execution of this Agreement. At Closing Bioglan shall issue a promissory note
(the "Promissory Note") for the balance of the Base Purchase Price (US
$39,100,000) substantially in the form of Exhibit G attached hereto to Medicis.
The Deposit shall be non-refundable to Bioglan unless the transactions
contemplated hereby are not consummated because any of the conditions set forth
in Section 4.1 are not satisfied. If the Deposit becomes refundable to Bioglan
pursuant to any of the provisions of this Agreement and Medicis shall not have
refunded the Deposit within five (5) business days of written demand by Bioglan
requesting repayment, then interest at the Prevailing Interest Rate shall be due
thereon to Bioglan from the date of such demand until such Deposit is repaid to
Bioglan.
Section 2.3 Deferred Purchase Payments. In addition to the Base
Purchase Price, in consideration for the sale, assignment, conveyance, transfer
and delivery of the Purchased Assets, Bioglan will pay to Medicis an additional
purchase price (the "Deferred Purchase Payments"), equal to five percent (5%) of
Net Sales of each of the products set forth in Schedule 3 in each of the
countries set forth in Schedule 4 (the "Territory"), except as otherwise
expressly provided in Schedule 4, and any Improvements thereon (the "Deferred
Payment Assets") for a period of ten years from the Closing Date; provided
however, that if any of the Deferred Payment Assets have not been used
commercially in any of the countries specified in the Territory, then the
Deferred Purchase Payments with respect to such Deferred Payment
5
10
Assets in such country shall be payable for a period of ten years from the date
of the first commercial use of each such Deferred Payment Asset in each such
country in the Territory; further provided that the total liability of Bioglan
pursuant to this provision taken together with its liability to make royalty
payments pursuant to the License Agreement by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ M.D.
and GenDerm Corporation dated January 1, 1995 and the License Agreement by and
between Jaye-Boern Laboratories, Inc. and GenDerm Corporation dated May 21, 1985
and the Assumption Agreement, Acceptance and Consent, dated December 15, 1993
between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the successor in interest to Jaye-Boern Laboratories,
Inc. and GenDerm Corporation (being two of the License Agreements) (which are
currently 3.5% of Net Sales and shall not be amended or extended without
Medicis' written consent, which may be withheld at Medicis' sole discretion)
shall not exceed eight percent (8%) of Net Sales but, to the extent that such
liability would (but for this provision) exceed eight per cent (8%) the rate of
royalty due to Medicis hereunder shall be reduced accordingly (but never below
4.5%) so that such liability to Medicis under this Section 2.3 shall never
exceed five per cent (5%).
Section 2.4 Payments. Bioglan shall furnish to Medicis within forty
(40) days from the last day of each calendar quarter a written report setting
forth the amount of Deferred Payment Assets sold, the gross selling price and
the Net Sales by Bioglan, its Affiliates and sublicensees, during the preceding
quarter and the amount of Deferred Purchase Payment due, together with payment
of the Deferred Purchase Payment, in United States Dollars based on the
applicable Average Exchange Rate. If the Deferred Purchase Payment earned for
any quarter is not paid within such forty (40) day period, interest shall accrue
on all amounts outstanding at the Prevailing Interest Rate from the date such
payment is due until payment. If no Deferred Purchase Payment is due Bioglan
shall so advise Medicis. Medicis shall promptly issue receipt of payment to
Bioglan in respect of all payments of Deferred Purchase Payment made by Bioglan.
Section 2.5 Records and Audit. Bioglan shall furnish to Medicis copies
of its annual report and audited accounts at the same time that such information
is made available to Bioglan's shareholders. Bioglan shall keep and require its
Affiliates and sublicensees to keep complete and accurate records of all sales
of the Deferred Payment Assets.
Medicis shall have the right, at Medicis' expense (except as provided
below), through a certified public accountant or like person reasonably
acceptable to Bioglan, to examine such relevant records during regular business
hours during the term of Section 2.3 of this Agreement and for two years
thereafter to verify the calculation of any Deferred Purchase Payment reflected
in such report. If Medicis does not agree that any such accounting correctly
states Bioglan's Net Sales or the applicable Deferred Purchase Payment, it shall
not later than sixty (60) days after the delivery of such accounting give notice
to Bioglan of any exceptions thereto. If Bioglan and Medicis reconcile their
differences, the accounting shall be adjusted accordingly and shall thereupon
become final and binding upon the parties hereto. If Bioglan and Medicis are
unable to reconcile their differences in writing within twenty (20) days after
written notice of exceptions is received by Bioglan, the items in dispute shall
be submitted to an accounting firm selected by Medicis from among the five
largest accounting firms in the United States in terms of gross revenues (the
"Arbitrator"), provided that such firm shall not be performing accounting
services for Medicis or Bioglan, for final determination and the accounting
shall be deemed adjusted in accordance with the determination of the Arbitrator
and
6
11
shall become final and binding upon all of the parties hereto. The Arbitrator
shall be instructed to act within thirty (30) days to resolve all items in
dispute. In the event that any such examination shall reveal an underpayment of
Deferred Purchase Payment to Medicis, Bioglan shall pay to Medicis the amount of
the underpayment and interest at the prevailing prime rate during such period
(as set forth in the New York edition of The Wall Street Journal) (the
"Prevailing Interest Rate"). If the underpayment is five percent (5%) or more
with respect to the period under examination the fees and expenses of such
examination (including Medicis' initial audit) will be paid solely by Bioglan.
In the event that any such examination shall reveal an overpayment of five
percent (5%) or more with respect to the period under examination Bioglan shall
be entitled to deduct from any Deferred Purchase Payment that may become due to
Medicis the amount of such overpayment together with interest on such sum at the
Prevailing Interest Rate from the date of the overpayment until such overpayment
has been fully refunded to Bioglan.
Section 2.6 Taxes. Any and all taxes paid or required to be paid by
Medicis on account of or directly related to the Deferred Purchase Payment
payable to Medicis under this Agreement shall be the sole and exclusive
responsibility of Medicis. All taxes assessed or imposed against, or required to
be withheld from the Deferred Purchase Payment due Medicis shall be deducted
from the amount payable hereunder and Bioglan shall promptly pay the appropriate
fiscal or tax authorities on behalf of Medicis. Tax receipts received by Bioglan
evidencing payment of such taxes shall be forwarded promptly to Medicis.
Section 2.7 Currency Conversion. Monetary conversions from the currency
of a foreign country, in which Deferred Payment Assets are sold, into U.S.
currency shall be determined using the Average Exchange Rate. The "Average
Exchange Rate" shall be the average of the official exchange rate in force in
that country for financial transactions on the first and last business day of
the calendar quarter for which the Deferred Purchase Payment is being paid. If
there is no such official exchange rate, the conversion shall be made at the
rate for such remittances on the date as published in The New York edition of
The Wall Street Journal.
Section 2.8 Form of Payment. Except as otherwise provided herein, all
payments made hereunder shall be made in United States Dollars by wire transfer
in immediately available funds to an account designated in writing by Medicis to
Bioglan.
Section 2.9 Assumption of Obligations. Subject to the terms and
conditions set forth herein, and in reliance upon the representations and
warranties contained herein, at the Closing, in consideration for the sale,
assignment, conveyance, transfer and delivery of the Purchased Assets to
Bioglan, Medicis will assign, convey and transfer to Bioglan, and Bioglan will
unconditionally assume and undertake to pay, perform and discharge, in a timely
manner and in accordance with the terms thereof, all liabilities related to or
arising out of the Purchased Assets as are incurred and become due at any time
following the Closing Date and, subject to the provisions of Section 7.3, any
and all obligations relating to the litigation (the "Private Label Litigation")
set forth and described as such in the Disclosure Letter, including any claim
related to the Private Label Litigation arising prior to the Closing Date
(collectively, the "Assumed Liabilities"). Without limiting the generality of
the foregoing, Bioglan hereby agrees to assume, undertake and perform all
obligations of Medicis under the Assumed Liabilities to the extent such
obligations arise or are to be performed after June 1, 1999.
7
12
Section 2.10 Excluded Assets and Liabilities. Notwithstanding anything
in this Article II to the contrary (but subject to the provisions of Section
7.3), any and all benefits and expenses relating to the litigation (the "Branded
Litigation") set forth and described as such in the Disclosure Letter shall be
retained by Medicis and Bioglan will not purchase or acquire any right, title or
interest therein or obligation thereunder except as set forth in Section 2.1(f).
ARTICLE III
CLOSING
Section 3.1 Closing. The consummation of the transactions contemplated
herein (the "Closing") shall take place within five (5) business days of
satisfaction of the conditions set forth in Article IV, or at such other date
and time as mutually agreed to by the parties (the "Closing Date").
Section 3.2 Closing Deliveries of Medicis. At the Closing, and subject
always to Section 9.15, Medicis shall (if appropriate) execute and deliver or
cause the appropriate Affiliate to execute (if appropriate) and deliver to
Bioglan:
(a) a License Assignment for each of the License Agreements
substantially in the form of Exhibit A attached hereto;
(b) a Trademark Assignment for each of the Trademarks substantially in
the form of Exhibit B attached hereto,
(c) a ▇▇▇▇ of Sale substantially in the form of Exhibit C attached
hereto,
(d) a Transition Services Agreement (the "Transition Services
Agreement") substantially in the form of Exhibit D attached hereto, pursuant to
which the parties hereto shall agree that Medicis shall pay the Contribution
Margin;
(e) a Secretary's Certificate of Medicis setting forth copies of the
resolutions or other instruments authorizing this Agreement and the transactions
contemplated herein;
(f) an Officer's Certificate of Medicis as required under Section
4.1(b) hereof;
(g) a copy of all consents, approvals and authorizations as required
under Section 4.1(e) hereof;
(h) a counterpart license agreement (the "Canadian License Agreement")
pursuant to which Bioglan will license to Medicis the right to market and sell
certain of the Products in Canada substantially in the form of Exhibit E
attached hereto;
(i) a counterpart license agreement
pursuant to which Bioglan AB will grant a semi exclusive license to Medicis to
use in its sole discretion in the United States of America only
but which shall not
include the right to use the trademark or tradename or any name
colorably similar thereto substantially in the form of Exhibit F attached
hereto;
8
13
(j) the Inventory;
(k) a counterpart security agreement (the "Security Agreement")
substantially in the form of Exhibit H attached hereto pursuant to which Bioglan
or its Affiliate will grant a first priority security interest in the Purchased
Assets at Closing until the Promissory Note is paid in full or otherwise
cancelled in accordance with its terms or pursuant to the terms of this
Agreement;
(l) a trademark security agreement (the "Trademark Security Agreement")
substantially in the form of Exhibit J attached hereto pursuant to which Bioglan
or its Affiliate will grant a first priority trademark security interest in the
Trademarks at Closing until the Promissory Note is paid in full or otherwise
cancelled in accordance with its terms or pursuant to the terms of this
Agreement;
(m) a receipt of payment for the Deposit and cost of Inventory; and
(n) a counterpart of the License Termination as required under Section
4.1(g);
(o) the originals of all the License Agreements; and
(p) such other documents as Bioglan shall reasonably request.
Section 3.3 Closing Deliveries of Bioglan. At the Closing, and subject
always to Section 9.15, Bioglan shall (if appropriate) execute and deliver or
cause Bioglan AB or Bioglan Pharma, Inc. (as appropriate) to execute (if
appropriate) and deliver to Medicis:
(a) an amount equal to Medicis' cost of the Inventory being delivered
pursuant to Section 3.2(j).
(b) a counterpart License Assignment for each of the License Agreements
substantially in the form of Exhibit A attached hereto,
(c) a counterpart Trademark Assignment for each of the Trademarks
substantially in the form of Exhibit B attached hereto,
(d) a counterpart Transition Services Agreement substantially in the
form of Exhibit D attached hereto;
(e) a Secretary's Certificate of Bioglan setting forth copies of the
resolutions or other instruments authorizing this Agreement and the transactions
contemplated herein;
(f) an Officer's Certificate of Bioglan as required under Section
4.2(b) hereof;
(g) the Canadian License Agreement substantially in the form of Exhibit
E attached hereto;
(h) the substantially in the form of Exhibit
F attached hereto;
9
14
(i) the Promissory Note substantially in the form of Exhibit G attached
hereto;
(j) the Security Agreement substantially in the form of Exhibit H
attached hereto and related financing statements;
(k) the Trademark Security Agreement substantially in the form of
Exhibit J attached hereto;
(l) the License Termination as required under Section 4.1(g); and
(m) such other documents as Medicis shall reasonably request.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1 Conditions to Bioglan's Obligations. Bioglan's obligation
to consummate the transactions contemplated herein at the Closing are subject to
the fulfillment at or prior to the Closing of each of the following conditions,
the fulfillment of any of which may be waived, in whole or in part or subject to
conditions, by Bioglan:
(a) The completion by Medicis of all acts necessary to authorize its
execution, delivery and performance of this Agreement and the other agreements
provided for herein, and the consummation of the transactions contemplated
herein and therein.
(b) All the representations and warranties (including the disclosures
made in the Disclosure Letter) of Medicis contained in this Agreement being true
and correct in all material respects as of the date of execution of this
Agreement and at the Closing Date by Medicis and all of the agreements of
Medicis which are provided in this Agreement to be performed at or prior to the
Closing having been duly performed, and Medicis having complied with this
Agreement in all other material respects, except as otherwise provided in
Section 6.1(k), and Medicis having delivered to Bioglan a certificate, dated as
of the Closing Date, and signed by an executive officer of Medicis, to the
effect set forth in this Section 4.1(b).
(c) Medicis or its relevant Affiliate having assigned to Bioglan (with
the consent of the other parties thereto) the benefit of the Chemsyn Agreement
and having assigned to Bioglan AB the Dermastick License.
(d) All applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), having expired
or been terminated.
(e) Medicis having obtained all consents, approvals, releases,
discharges and authorizations necessary to be obtained on the part of Medicis to
consummate the transactions contemplated hereby including without limitation,
all necessary consents of shareholders, mortgagees, lienholders, encumbrancers,
assignees and licensors (pursuant to the License Agreements) (the "Required
Consents").
10
15
(f) The simultaneous consummation of the transactions contemplated
pursuant to the Exorex Asset Purchase Agreement.
(g) The termination of the license agreements by and between GenDerm
Corporation and Bioglan Laboratories Limited dated February 1, 1998 relating to
(i) pharmaceutical topical anti-pruritic preparations containing tricyclic
anti-depressant compounds and (ii) a pharmaceutical topical preparation
containing capsaicin to be effected by the execution by Medicis or its Affiliate
of a license termination substantially in the form of the license termination
(the "License Termination") set forth in Exhibit I attached hereto.
Section 4.2 Conditions to Medicis' Obligations. The obligations of
Medicis to consummate the transactions contemplated at the Closing are subject
to the fulfillment at or prior to the Closing of each of the following
conditions, the fulfillment of any of which may be waived, in whole or in part
or subject to conditions, by Medicis:
(a) All applicable waiting periods under the HSR Act having expired or
been terminated.
(b) All the representations and warranties of Bioglan contained in this
Agreement being true and correct in all material respects as of the date of
execution of this Agreement and at the Closing Date by Bioglan and all of the
agreements of Bioglan which are provided in this Agreement to be performed at or
prior to the Closing Date having been duly performed, and Bioglan having
complied with this Agreement in all other material respects, and Bioglan having
delivered to Medicis a certificate, dated as of the Closing Date and signed by
an executive officer of Bioglan, to the effect set forth in this Section 4.2(b).
(c) Payment in full having been made by Bioglan of the Deposit and all
other sums (other than Deferred Purchase Payments) required by this Agreement to
be paid by Bioglan to Medicis at or prior to the Closing.
(d) The simultaneous consummation of the transactions contemplated
pursuant to the Exorex Asset Purchase Agreement.
(e) The simultaneous termination of the license agreements by and
between GenDerm Corporation and Bioglan Laboratories Limited dated February 1,
1998 referred to in Section 4.1(g) above to be effected by the execution by
Bioglan or its Affiliate of a license termination substantially in the form of
the License Termination set forth in Exhibit I attached hereto.
ARTICLE V
OTHER MATTERS
Section 5.1 Use of Know-How. Except as otherwise provided for in this
Agreement, after the Closing, Medicis shall not use the Know-How. Furthermore,
after the Closing Medicis shall not disclose the Know-How to any third party,
unless such disclosure is required by law or regulation.
11
16
Section 5.2 New Product Development. Notwithstanding anything in this
Agreement to the contrary, the transfer and assignment to Bioglan by Medicis or
its Affiliate of the Purchased Assets shall not prevent Medicis or its Affiliate
from continuing to manufacture and sell other products included or expected to
be included in its current line or to use other trademarks owned by Medicis and
its Affiliates or restrict the rights of Medicis and its Affiliates to develop
and sell new products using the same active ingredients contained in the
Products, but using different formulations, or different presentations, and
under different product trademarks; provided that such new products do not
contain capsaicin or doxepin, either alone or in combination with other
ingredients.
Section 5.3 Risks Associated With the Products. After the Closing Date,
subject to the terms of the Transition Services Agreement, Bioglan shall bear
the entire responsibility for and risk in the use, manufacture, distribution,
marketing and sale of the Products, including those associated with returns of
Product after June 1, 1999 sold by Medicis and its Affiliates prior to June 1,
1999, and compliance with all regulations and laws pertaining to the Products.
Medicis shall, for one year following the Closing Date, use its reasonable best
efforts to assist Bioglan in these matters, but they shall remain the sole
responsibility of Bioglan.
Section 5.4 Agreement to Distribute. In order to ensure continued
supply of the Products to customers following consummation of this Agreement,
Medicis hereby agrees to act as distributor of the Products for the earlier of
(i) a period of four (4) months from the consummation of this Agreement, or (ii)
until Bioglan gives written notice to Medicis that Bioglan has developed its own
distribution network. This period shall be extended, at the written request of
Bioglan, for a further two (2) months if, after using its reasonable best
efforts, Bioglan has been unable to develop its own distribution system at the
end of the four month period. Upon expiration of the period for which Medicis
shall distribute Products on behalf of Bioglan as set forth above, Medicis shall
return to Bioglan any inventory of the Products in Medicis' possession as of the
date thereof.
Section 5.5 Notification of Customers. Medicis and Bioglan agree to
cooperate in the notification to customers of the transactions contemplated by
this Agreement. Neither Medicis nor Bioglan shall notify any customers of such
transactions without the written consent of the other. Such notification (the
"Joint Notice") shall be in such form as is reasonably satisfactory to Bioglan
and Medicis and shall also inform such customers of Bioglan's address.
Section 5.6 Customer Orders. Medicis agrees for a period of four (4)
months after the Closing Date to use its reasonable best efforts to forward to
Bioglan all customer orders or inquiries for the Products received after the
Closing as soon as practicable after receipt by Medicis. Medicis agrees that,
for a period of six (6) months from the Closing Date, it will inform any
customers ordering the Products or requesting information about the Products,
that Bioglan is now supplying the Products and provide such customers with
Bioglan's address.
Section 5.7 Accounts Receivable.
(a) In the event that Medicis or any of Medicis' Affiliates receive any
payment relating to any accounts receivable that accrued on or after the date on
which the Transition Services Agreement is terminated or expires, such payment
will be the property of, and will be
12
17
immediately forwarded and remitted to Bioglan. Medicis or any such Affiliates
will promptly endorse and deliver to Bioglan any cash, checks or other documents
received by Medicis or any such Affiliate on account of any such accounts
receivable and will advise Bioglan of any counterclaims or set-offs that may
arise subsequent to the Closing Date with respect to such accounts receivable.
(b) In the event that Bioglan or any of Bioglan's Affiliates receive
any payment relating to any accounts receivable that accrued prior to the date
on which the Transition Services Agreement is terminated or expires, such
payment will be the property of, and will be immediately forwarded and remitted
to Medicis. Bioglan or any such Affiliates will promptly endorse and deliver to
Medicis any cash, checks or other documents received by Bioglan or any such
Affiliate on account of any such accounts receivable and will advise Medicis of
any counterclaims or set-offs that may arise subsequent to the Closing Date with
respect to such accounts receivable.
Section 5.8 Product Registration.
(a) After the Closing, Bioglan will initially market the Products under
the Authorizations, such Authorizations having been varied to permit the same.
Such distribution relationship shall continue until Bioglan obtains regulatory
authorization from the FDA to market the Products under its own authorizations
(the "New Authorizations").
(b) To permit Bioglan to distribute and sell the Products, Bioglan
shall, promptly following signature hereof at its own expense, file all
necessary instruments with the FDA to obtain a waiver to vary Medicis'
Authorizations to allow Bioglan to sell the Products.
(c) Bioglan shall, at its sole expense, file a product license
application with the FDA for each of the Products. Medicis shall, at its
expense, file all necessary instruments with the FDA to authorize Bioglan to
cross-refer to the data contained in the Authorizations in order for Bioglan to
obtain the New Authorizations.
(d) Within thirty (30) days after the Closing Date, the parties shall
each appoint a primary liaison (the "Medical Affairs Liaison") to communicate
with each other with regard to the actions and information required pursuant to
this Section 5.8 and shall notify the other of the name, address and telephone
number of the person so appointed.
(e) During the period that Bioglan is selling the Products under the
Authorizations, each party shall advise the other as set forth in (i) and (ii)
below of any adverse drug experience associated with the Products. In addition,
Bioglan shall report all adverse drug experience information it obtains,
including that obtained from Medicis, to the FDA as set forth in Section 5.8(f)
below:
(i) Any adverse drug experience information obtained by a
party shall be reported to Bioglan's Medical Affairs Liaison, by
telephone or in writing (only by facsimile) within three (3) working
days after the first party's initial receipt of the information;
provided, however, that any report of a serious unlabelled side effect
or any report of a death shall be reported to Bioglan's Medical Affairs
Liaison within twenty-four (24) hours of receipt of the information;
and
13
18
(ii) The reports of adverse drug experience shall contain the
following information: (i) the date the report was received; (ii) the
name of the reporter; (iii) the address and telephone number of the
reporter; (iv) the patient details; (v) the suspected drug; (vi) other
concomitant therapy; (vii) a description of the adverse drug
experience; and (viii) any additional relevant information; provided
such information is obtainable through the use of reasonable efforts
and is not subject to any duty of non-disclosure or confidence.
(f) Bioglan shall report all adverse drug experience information
associated with the Products, including those received from Medicis under this
Section 5.8 to the FDA, in accordance with the laws and regulations of the
United States.
(g) After the Closing, Bioglan shall bear the entire responsibility for
the manufacture, distribution, advertising and sale of the Products and for all
actions required by the FDA and other governmental laws and regulations relating
to the manufacture, distribution, and use of the Products after June 1, 1999.
(h) Upon the grant to Bioglan of the New Authorizations, Medicis agrees
at its own expense to take all reasonably necessary steps to cancel, transfer or
assign forthwith at Bioglan's option its Authorizations in the United States.
Section 5.9 Recall and Return of Products. During the period that
Bioglan is selling Products pursuant to the Authorizations, Bioglan shall, at
its cost, be responsible for all activities to be performed relating to any
recall or return of such Products and Medicis shall during such period promptly
notify Bioglan of all decisions and notifications of the FDA relating to the
Products.
Section 5.10 Enforcement of GenDerm Warranties. In further
consideration of Bioglan entering into this Agreement, Medicis agrees that for a
period of two (2) years from the Closing Date, upon written request by Bioglan,
it shall take all reasonable actions necessary to enforce any and all of the
GenDerm Warranties in accordance with terms of the Merger Agreement by and among
GenDerm Corporation, Medicis and Medicis Acquisition Corporation for the benefit
of Bioglan; provided that Bioglan shall be responsible for all out of pocket
expenses relating to such enforcement and provided further that Medicis shall
not be required to take any position or pursue any claim that is adverse, in any
respect, to Medicis. Notwithstanding anything in this Section 5.10 to the
contrary, any and all claims by Medicis pursuant to the Merger Agreement pending
as of the date hereof are solely for the benefit of Medicis.
Section 5.11 Similar Marks. Medicis is the owner of the trademark
GLYCOTHERAPLEX, U.S. Registration No. 2,179,275, issued August 4, 1998 for the
▇▇▇▇ GLYCOTHERAPLEX, and Community Trademark Registration No. 510,784 issued
January 20, 1999, for the ▇▇▇▇ GLYCOTHERAPLEX. An Affiliate of Medicis is the
owner of the trademark KERAPLEX and U.S. Trademark Application Serial No.
75/368,443, filed on October 6, 1997, for the ▇▇▇▇ KERAPLEX. Medicis is also the
owner of the following marks and registrations, which by this Agreement, Medicis
transfers to Bioglan: THERAPLEX; THERAPLEX CLEARLOTION; U.S. registration No.
1,639,471, issued April 2, 1991, for the
14
19
▇▇▇▇ THERAPLEX; and U.S. Registration No. 1,797,498, issued October 12, 1993,
for the ▇▇▇▇ THERAPLEX CLEARLOTION. The parties acknowledge each other's right
in and to the noted marks, registrations and application, and further agree that
concurrent use of the marks THERAPLEX and/or THERAPLEX CLEARLOTION by Bioglan
and its Affiliates, and KERAPLEX, or GLYCOTHERAPLEX and/or GLYCOPLEX by Medicis
and its Affiliates, all for dermatological or cosmetic products, is not likely
to cause confusion. Bioglan hereby consents to use and registration of the marks
KERAPLEX, GLYCOTHERAPLEX and GLYCOPLEX for dermatological or cosmetic products
by Medicis and its Affiliates and agrees that it will not interfere with issued
registrations for the marks for such products. Likewise, Medicis agrees that it
will not interfere with use or oppose registration of the marks THERAPLEX or
THERAPLEX CLEARLOTION by Bioglan and its Affiliates for dermatological or
cosmetic products and agrees that it will not interfere with issued
registrations for the marks for such products. The parties agree to assist one
another, to the extent reasonably required and at the expense of the trademark
owner, to obtain registrations for their respective marks for dermatological
and/or cosmetic products.
Section 5.12 GenDerm Earnout. Bioglan agrees to fulfill all of the
obligations of Medicis or its Affiliates pursuant to Section 2(h)(iv) and
2(h)(v) of the Merger Agreement; provided always that Bioglan shall have no
liability to GenDerm Corporation or the Target Stockholders or the Target
Stockholders Representative (each as defined therein) in connection with the
Merger Agreement, including, without limitation, the payment of the Earnout
Amount.
Section 5.13 Payment of Royalties. Medicis agrees that it will pay all
royalties which accrued under the License Agreements prior to June 1, 1999 in
accordance with the terms of such License Agreements.
Section 5.14 Title to Assets. Bioglan agrees that Bioglan Pharma, Inc.
shall be the sole owner of the Purchased Assets and it shall not permit Bioglan
Pharma, Inc. to sell, assign, encumber or sublicense any right, title or
interest in any of the Purchased Assets, other than in the ordinary course of
business, until such time as the Promissory Note is fully paid or otherwise
cancelled in accordance with its terms.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Medicis. Except as set
forth in the Disclosure Letter, Medicis hereby represents and warrants to
Bioglan as of the date hereof as follows:
(a) Organization. Medicis and each of its Affiliates that is a party to
any of the License Agreements or to any of the agreements contemplated hereby
(i) is a corporation duly organized and validly existing and in good standing
under the laws of its state of incorporation and (ii) has all necessary
corporate power and authority to own its properties and to conduct its business,
as currently conducted.
(b) Authorization. The execution and delivery of this Agreement and the
other agreements contemplated hereby, and the consummation of the transactions
contemplated hereby
15
20
and thereby, are within the corporate power of Medicis and any relevant
Affiliate of Medicis, have been or will be, on or prior to the Closing Date,
duly authorized by all necessary corporate proceedings and such agreements have
been or will be, on or prior to the Closing, duly executed and delivered by
Medicis or such Affiliate (where appropriate).
(c) Execution and Delivery. Neither the execution of this Agreement and
the other agreements contemplated hereby nor the consummation of the
transactions contemplated herein and therein: (i) requires Medicis to obtain any
approval, consent or withholding of objections on the part of any regulatory or
governmental body; (ii) will result in any violation or breach of any term or
provision of Medicis' Certificate of Incorporation or Bylaws; (iii) will
constitute a default under any material indenture, mortgage, deed of trust,
license agreement or other contract or agreement to which Medicis or any
Affiliate of Medicis that is a party to any of the License Agreements or any of
the agreements contemplated hereby is a party or to which the Purchased Assets
may be subject; or (iv) will violate any provision of any judicial, governmental
or administrative order, writ, injunction, award, judgment or decree applicable
to Medicis or any Affiliate of Medicis that is a party to any of the License
Agreements or any of the agreements contemplated hereby which would result in a
material adverse effect in the condition, business or operations ("Material
Adverse Effect") of Medicis.
(d) Binding Obligation. As of the Closing, this Agreement and the other
agreements contemplated hereby will have been duly and validly authorized,
executed and delivered by Medicis or the relevant Affiliate of Medicis as
provided hereunder and, when duly executed and delivered by Bioglan or Bioglan
AB as provided hereunder, will constitute valid and binding obligations of
Medicis or the relevant Affiliate of Medicis, enforceable against Medicis and
the relevant Affiliate of Medicis in accordance with their terms, except as such
enforcement may be limited by bankruptcy or other laws of general application
affecting creditor rights or general principles of equity or principles of
public policy relating to indemnification.
(e) Broker. Except for Corporate Development Specialists, Inc., neither
Medicis nor any officer, director or agent of Medicis has employed any broker,
finder, or agent with respect to this Agreement or the transactions contemplated
hereby.
(f) Gross Sales. The amount of gross sales, less returns, for the
calendar year ended December 31 1998, and for the calendar quarter ended March
31, 1999 as accounted for by Medicis in accordance with United States generally
accepted account principles ("GAAP"), which has been provided by Medicis to
Bioglan prior to the date of this Agreement as contained in the Disclosure
Letter, was correct in all material respects. Medicis has also provided Bioglan
in the Disclosure Letter with information regarding shipments and returns for
the period from April 1, 1999 to May 31, 1999, which information was correct in
all material respects.
(g) Trademarks. The Trademarks are currently being used commercially by
Medicis and have been properly filed or registered with the U.S. Patent and
Trademark Office and are valid and in full force and effect as of the date of
execution of this Agreement.
Except as may be restricted or prohibited by any applicable law, rule,
regulation or decision, Medicis or its Affiliates has the exclusive right to
use, transfer and assign, free and clear of any material liens, royalties or
encumbrances, the registrations for the Trademarks.
16
21
To the best of Medicis' knowledge, the manufacture, use or sale of the
Products by Medicis or the use of the Trademarks in the United States of America
for the sale of the Products does not infringe the rights of any third party
including inter alia intellectual property rights.
Except for any restriction or prohibition set forth in any applicable
law, rule, regulation, decision or other governmental action, Medicis is not
aware of any restriction or prohibition which would prevent or restrict the
disclosure of the Know-How to Bioglan hereunder.
(h) Adverse Drug Experiences. Medicis has informed Bioglan of all
material adverse drug experiences related to the Products of which it has
knowledge.
(i) License Agreements. Each License Agreement is in full force and
effect, and a full and complete copy thereof including all amendments thereof
(if any), as duly executed by all parties, is attached to the Disclosure Letter.
There have been and are no other amendments, changes or waivers by either party
of any of the terms thereof, written or otherwise.
Medicis or its Affiliates have the full legal right, power and
authority to convey the License Agreements.
Neither Medicis nor its Affiliates have assigned, sublicensed
or granted, nor is there otherwise outstanding, any material lien or encumbrance
of any kind in, any License Agreement.
Medicis and its Affiliates are in compliance with all material
terms of each License Agreement. To the knowledge of Medicis, there are no
counterclaims, defenses or offsets against any obligation of Medicis or any of
its Affiliates to perform under any of the License Agreements.
(j) Inventory. Medicis has good and valid title to the Inventory, free
and clear of any material lien or encumbrance, and has not sold or contracted to
sell any of the Inventory other than in the ordinary course of business.
All Inventory is held under and in accordance with all
material requirements of the License Agreements.
All Inventory is in good and marketable condition, has an
anticipated remaining shelf life as of June 1, 1999 of not less than twelve (12)
months, and does not include any patently damaged, obsolete, or outdated
material; provided that if the representation made in the foregoing sentence is
not materially true and correct Medicis shall refund to Bioglan any amounts paid
pursuant to Section 2.2(a) relating to such Inventory or provide substitute
Inventory in the same amount to replace the Inventory which does not conform
with this representation and such breach of the representation shall not be
sufficient reason for Bioglan not to consummate the transactions contemplated
hereby.
17
22
All Products sold by Medicis or its Affiliates after June 1,
1999 to the Closing Date or in Inventory as of the Closing Date were
manufactured in accordance with Good Manufacturing Practices, are adequately
packaged and labeled and are in conformity with all applicable Authorizations.
(k) Litigation. There is no litigation, arbitration proceeding,
governmental investigation, action or claims of any kind, pending or, to the
knowledge of Medicis, threatened, or facts which could reasonably be expected to
give rise thereto, by or against Medicis or any of its Affiliates which would
affect Bioglan as the purchaser hereunder or relative to the License Agreements
or the Products, other than the Private Label Litigation and the Branded
Litigation, including, without limitation, regarding breach of express or
implied warranty or representation or failure to warn or relating to personal
injury, property damage or other liability arising from or caused by the
Products.
Notwithstanding anything set forth in the Disclosure Letter, Medicis
warrants that Bioglan is not and will not be materially adversely affected by
any dispute or litigation directly related to the Products based upon claims up
to the Closing Date by Medicis against the Target Shareholders under the Merger
Agreement.
(l) Customer and Supplier Lists. Medicis has, or prior to the Closing
will have, provided Bioglan with complete and accurate lists of the names and
addresses of all material customers and suppliers of the Products.
(m) DISCLAIMER. OTHER THAN THOSE ARISING AS A RESULT OF A BREACH OF THE
REPRESENTATIONS AND WARRANTIES HERETO AND THE ▇▇▇▇ OF SALE, BIOGLAN HEREBY
WAIVES ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, DUTIES, AND GUARANTEES OF
ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, CONCERNING THE
PURCHASED ASSETS OR THE VALUE, CONDITION, EFFECTIVENESS OR COMPLIANCE WITH
SPECIFICATION OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, THE ABSENCE
OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR THE QUALITY OF THE
MATERIALS OR WORKMANSHIP, AND BIOGLAN HEREBY WAIVES ANY AND ALL RIGHTS AND
REMEDIES IT MAY HAVE AGAINST MEDICIS RELATING TO ANY OF THE FOREGOING AND
ARISING BY LAW OR OTHERWISE OR WITH RESPECT TO LOSS OF USE, REVENUE OR PROFIT,
THE EXISTENCE OF ANY LATENT, INHERENT OR ANY OTHER DEFECT (WHETHER OR NOT
DISCOVERABLE), OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Section 6.2 Representations and Warranties of Bioglan. Bioglan hereby
represents and warrants to Medicis as of the date hereof as follows:
(a) Organization. Bioglan (i) is a public limited company duly
organized, validly existing under the Laws of England and Wales and (ii) has all
necessary power and authority to own its properties and to conduct its business
as presently conducted.
18
23
(b) Authority. The execution and delivery of this Agreement and the
other agreements contemplated hereby, and the consummation of the transactions
contemplated hereby and thereby, are within the corporate power of Bioglan and
any relevant Affiliate of Bioglan, have been or will be, on or prior to the
Closing Date, duly authorized by all necessary corporate proceedings except for
shareholder approval, the obtaining of which shall be governed by and subject to
Section 7.5, and such agreements have been or will be, on or prior to the
Closing, duly executed and delivered by Bioglan and any relevant Affiliate of
Bioglan.
(c) has good and marketable title
to the which is the subject of the
and has the full legal right, power and authority to license such formulation to
Medicis. Bioglan has not otherwise assigned, sublicensed or granted any rights
to the which could conflict with the
.
(d) Execution and Delivery. Subject to the approval of the shareholders
of Bioglan at the shareholders' meeting as contemplated in Section 7.5, neither
the execution of this Agreement and the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby and thereby: (i)
requires Bioglan to obtain the approval, consent or withholding of objection on
the part of any governmental body; (ii) will result in any violation or breach
of any term or provisions of Bioglan's memorandum and articles of association;
(iii) will constitute a default under any indenture, mortgage, deed of trust,
license, agreement, or other contract or agreement to which Bioglan or any
Affiliate of Bioglan that is a party to any of the agreements contemplated
hereby is a party; or (iv) will violate any provision of any judicial,
governmental or administrative order, writ, injunction, award, judgment or
decree applicable to Bioglan or any Affiliate of Bioglan that is a party to any
of the agreements contemplated hereby which could reasonably be expected to
result in a Material Adverse Effect on Bioglan.
(e) Binding Obligation. Subject to the approval of the shareholders of
Bioglan at the shareholders' meeting as contemplated in Section 7.5, as of the
Closing this Agreement and the other agreements contemplated hereby will have
been duly and validly authorized, executed and delivered by Bioglan or the
relevant Affiliate of Bioglan, and when duly executed and delivered by Medicis
and any relevant Affiliate of Medicis, will constitute valid and binding
obligations of Bioglan or the relevant Affiliate of Bioglan, enforceable against
Bioglan in accordance with their terms, except as such enforcement may be
limited by bankruptcy or other laws of general application affecting creditor
rights or general principles of equity or principles of public policy relating
to indemnification.
(f) Broker. Neither Bioglan nor any officer, director or agent of
Bioglan, has employed any broker or finder with respect to this Agreement or the
transactions contemplated hereby.
(g) Shareholders' Meeting. Bioglan has obtained irrevocable
undertakings to vote for the transactions contemplated by this Agreement from
holders of a majority of Bioglan's issued ordinary shares.
19
24
ARTICLE VII
CONDUCT PRIOR TO CLOSING
Section 7.1 Cooperation. The parties agree to cooperate mutually and
make all reasonable efforts toward consummating the transactions contemplated
hereby and fulfilling the purposes of this Agreement prior to and following
Closing, including providing and executing such additional documentation and
communications as may be appropriate for such purposes.
Section 7.2 Conduct of Business by Medicis. Upon execution of this
Agreement, Medicis shall not without the prior written consent of Bioglan take
any action out of the ordinary course of business in relation to the Products
prior to Closing nor will it do, procure or allow anything which may cause,
constitute or result in a breach of the Warranties. After the execution of this
Agreement through the Closing Date, Medicis shall provide Bioglan, its agents,
representatives and professional advisors reasonable access to all information
and facilities relating to the Purchased Assets, as reasonably requested by
Bioglan during normal business hours.
Section 7.3 Conduct of Private Label Litigation. From the date of this
Agreement until the Closing Date, Medicis agrees that it will take no material
actions, including the settlement of any claims, relating to the Private Label
Litigation without the consent of Bioglan, which consent shall not be
unreasonably withheld, conditioned or delayed. During such period Medicis shall
provide Bioglan with all information reasonably necessary for Bioglan to
evaluate the Private Label Litigation. If Bioglan notifies Medicis within one
(1) day prior to the Closing Date, Medicis shall no longer pursue the Private
Label Litigation.
Section 7.4 Review. Medicis shall permit Bioglan's auditors to inspect
Medicis' records relating to sales of the Products to enable the said auditors
to adequately validate the financial receipts relating to the sales of the
Purchased Assets (as required under the Listing Rules of the London Stock
Exchange) since January 1, 1998; provided, however, that Medicis shall have no
liability whatsoever in connection with the review described herein, unless the
review shall indicate the existence of a material breach of the Warranties.
Section 7.5 Shareholders' Meeting. Bioglan shall cause a shareholders'
meeting to be called to vote on the transactions contemplated by this Agreement
as soon as possible, but no later than July 24, 1999 and shall use its best
efforts to cause the shareholders to approve the transactions contemplated by
this Agreement.
Section 7.6 Validation Claims. Bioglan will remit to Medicis bills for
validation in connection with (i) that certain Civamide/Capsaicin Development
and Supply Agreement dated October 13, 1998 ("Chemsyn Agreement") by and between
GenDerm and Eagle Picher Technologies LLC and (ii) that certain Contract
Manufacturing Agreement dated December 15, 1993 by and between GenDerm and DPT
Laboratories, Inc. ("DPT Agreement") and Medicis shall reimburse Bioglan for all
validation expenses under such agreements; provided, however, that Medicis shall
not be liable for reimbursements on (i) the Chemsyn Agreement for amounts
greater than US $250,000 less any validation costs previously paid by Medicis or
its Affiliates for validation costs under the Chemsyn Agreement; and (ii) the
DPT
20
25
Agreement for amounts greater than US $250,000 less any validation costs
previously paid by Medicis or any of its Affiliates for validation costs under
the DPT Agreement.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by Medicis. Medicis agrees to indemnify,
defend and hold harmless Bioglan (and its directors, officers, employees,
Affiliates, successors and assigns) from and against all losses, personal
injuries, liabilities, damages (other than incidental or consequential),
deficiencies, costs or expenses including, without limitation, interest,
penalties and reasonable attorneys' fees and disbursements ("Losses") of Bioglan
and its Affiliates based upon, arising out of or otherwise in respect of:
(a) any material inaccuracy in or material breach of, any
representation, warranty, covenant or agreement (other than with respect to the
covenant set forth in Section 7.4, for which Medicis shall have no liability,
unless the review shall indicate the existence of a material breach of the
Warranties) of Medicis or any relevant Affiliate contained in this Agreement.
(b) any harm to any third party caused by any defect in the Products
manufactured, mandated, distributed, or sold by Medicis or any relevant
Affiliate, prior to June 1, 1999, or by any negligent or wrongful act of Medicis
or any relevant Affiliate prior to the Closing in connection with the
manufacture, distribution, advertising, or sale of the Products, or any failure
to comply with any regulation or statute in connection with the Products.
(c) failure of Medicis or any relevant Affiliate prior to the Closing
Date to use its reasonable best efforts to conduct its efforts under this
Agreement at all times in accordance with all applicable laws and regulations
which may materially affect the Products including without limitation the U.S.
Foreign Corrupt Practices Act.
(d) all liabilities (other than for royalties referred to in Section
2.1(a)) due to ▇▇. ▇▇▇▇ pursuant to that letter dated December 12, 1988 from
Medicis to Lincoln Ventures, Inc.
Section 8.2 Indemnification by Bioglan. Bioglan agrees to indemnify,
defend and hold harmless Medicis (and its directors, officers, employees,
Affiliates, successors and assigns) from and against all Losses of Medicis and
its Affiliates based upon, arising out of or otherwise in respect of:
(a) any material inaccuracy in or material breach of any
representation, warranty, covenant or agreement of Bioglan or any of its
Affiliates contained in this Agreement.
(b) any harm to any third party caused by any defect in the Products
manufactured, mandated, distributed or sold by Bioglan or any relevant Affiliate
after June 1, 1999 or by any negligent or wrongful act of Bioglan in connection
with the manufacture, distribution, advertising, or sale of the Products after
the Closing Date, or any failure after the Closing Date to comply with any
regulation or statute.
(c) failure of Bioglan or any relevant Affiliate to use its reasonable
best efforts to conduct its efforts under this Agreement at all times in
accordance with all applicable laws and
21
26
regulations which may materially affect the Products including without
limitation the US Foreign Corrupt Practices Act.
Section 8.3 Procedure for Indemnification.
(a) If any legal proceeding shall be instituted, or any claim or demand
made, against an indemnifying party in respect of which an indemnifying party
may be liable hereunder, or if either party hereto for any reason shall believe
that it has a claim against the other pursuant to the respective Sections 8.1 or
8.2 hereof, then the indemnified party or the party believing it has a claim
against the other, as the case may be (in either case, the "Indemnified Party"),
shall give prompt written notice hereunder to the indemnifying party or the
party against whom the party giving notice believes it has a claim, as the case
may be (in either case, the "Indemnifying Party"). Such notice shall specify in
reasonable detail the date such underlying claim or belief first was asserted or
arose, the nature of the Loss(es) for which payment is claimed, the Section or
Sections of this Agreement upon which such claim is based, and the amount
payable in respect thereto, and shall provide a copy of all pleadings relating
to the underlying claim.
(b) If an Indemnifying Party shall receive notice pursuant to this
Section 8.3, the Indemnifying Party may, at its sole option, elect to defend
against the Loss, which is the subject of such notice. If the Indemnifying Party
elects to defend, then the Indemnified Party shall have the right to participate
in such defense, and the trial counsel for the Indemnified Party shall be chosen
by the Indemnifying Party provided that such trial counsel shall be reasonably
satisfactory to the Indemnified Party, the costs of which shall be borne by the
Indemnified Party. If the Indemnifying Party does not elect to defend, then the
Indemnified Party may do so by its own counsel provided that such counsel shall
be reasonably satisfactory to the Indemnifying Party, the costs of which shall
be borne by the Indemnifying Party, and the Indemnifying Party agrees to
cooperate with the Indemnified Party in such defense.
(c) If the amount of any actual Loss indemnified against hereunder
shall at any time subsequent to the payment of any indemnity payable hereunder,
be reduced by any recovery, settlement or other payment, then the amount of such
reduction, less any expense incurred by the party receiving such recovery,
settlement or other payment in connection therewith, shall be repaid promptly to
the Indemnifying Party.
(d) The aggregate indemnification obligations of each of the parties
hereto under Section 8.1 or 8.2 hereof, as the case may be, will not exceed
United States Thirty-Seven Million Dollars (US $37,000,000).
(e) Neither party shall be obligated to indemnify the other for any
Losses hereunder, unless and until the aggregate amount of all Losses exceeds US
$250,000 (the "Basket"), and shall be liable only for amounts in excess of the
Basket; provided, however, that if the amount of Losses with respect to a breach
solely of either Section 6.1(f) or 6.1(i) exceeds US $250,000, Medicis shall be
liable for all Losses with respect to such breaches of either Section 6.1(f) or
6.1(i) from the first dollar and provided further that the Basket shall not
apply to Section 8.1(d).
22
27
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Survival of Representations and Warranties. All
representations or warranties set forth herein shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby for a period of two (2) years after the Closing Date. Thereafter, no
claim for breach of any representation or warranty shall be made. If this
Agreement is terminated pursuant to Section 9.12 hereof, neither Bioglan nor
Medicis shall be under any liability whatsoever with respect to any such
representation or warranty. The covenants and agreements shall survive
indefinitely, unless otherwise specified herein.
Section 9.2 Notices. All communications under this Agreement shall be
in writing and shall either be faxed, sent by courier or mailed by first class
mail, postage prepaid, to the fax number and/or address specified below. If
faxed, such communication shall be deemed to be given when sent; provided,
however, that any fax shall be confirmed by sending a hard copy by express
courier or first class mail (by methods specified herein) within one (1)
business day of the sending of such fax. If sent by courier or mailed by first
class mail as specified herein, such communication shall be deemed to be given
either two (2) business days after sending (for communications sent by courier)
or ten (10) business days after mailing (for communications sent by mail). All
communications hereunder shall be sent:
TO BIOGLAN: at its address shown below or such other address as it may
give to Medicis by notice hereunder:
5 Hunting Gate and to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Solicitors
England ▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
TO MEDICIS, at its address shown below or such other address as it may
give to Bioglan by notice hereunder:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, and to:
Suite 250 Akin, Gump, Strauss, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, L.L.P.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Older, Esq.
Section 9.3 Confidential Information. Bioglan and Medicis shall each
hold (and shall cause their respective Affiliates to hold) in confidence all
documents and information received by it in connection with the transactions
contemplated by this Agreement and, in the event that for any reason the
transactions contemplated by this Agreement shall not be
23
28
consummated, Bioglan and Medicis shall refrain (and shall cause their respective
Affiliates to refrain) from disclosing or otherwise using such documents and
information except in connection with any legal proceeding that may be
contemplated or instigated by either party against the other in relation to any
matter arising out of or under this Agreement, or as required by law or
regulation. This Section 9.3 shall not apply to information generally available
to the public through no fault of the disclosing party. Nothing in this Section
9.3 shall prevent either party from disclosing such information as may be
required by applicable law or any governmental or regulatory body or by the
rules or regulations of any national securities exchange upon which the
securities of either party are listed. If either party is requested to disclose
confidential information pursuant to the preceding sentence, (i) such party will
notify the other party immediately of the existence, terms and circumstances
surrounding such a request so that the other party may seek a protective order
or other appropriate remedy and/or waive compliance with the provisions of this
Agreement, and (ii) if, in the absence of a protective order, such disclosure is
required in the opinion of the disclosing party's counsel, such party may make
such disclosure without liability hereunder, provided that only that portion of
the confidential information which is legally required is disclosed, the other
party receives notice of the information to be disclosed as far in advance of
its disclosure as practicable and will use its reasonable best efforts to ensure
that confidential treatment will be accorded to all such disclosed information.
Bioglan shall not disclose confidential information to any third party in
connection with the marketing and selling of Bioglan's securities to such third
party without the prior written consent of Medicis (which consent shall not be
unreasonably withheld), provided that such consent shall be deemed granted if
Medicis has not responded to a request by Bioglan for such consent within
twenty-four (24) hours after Medicis receives actual notice of such request with
sufficient information regarding the terms and conditions of such proposed
disclosure to allow Medicis to evaluate the proposed disclosure.
Section 9.4 Amendment. This Agreement may be amended, modified or
supplemented only by written agreement of the parties hereto.
Section 9.5 Binding Effect. The rights and obligations of Bioglan and
Medicis under this Agreement and the agreements contemplated hereby shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but may not be assigned by either party
without the prior written consent of the other party. Nothing set forth herein
shall prevent either party from assigning its rights or obligations hereunder to
an Affiliate of said party provided that no such assignment shall relieve said
party of its obligations hereunder.
Section 9.6 Press Releases. Bioglan and Medicis agree to approve
jointly the text of an initial press release announcing the execution of this
Agreement or the consummation of the transactions contemplated hereby and not to
use the name of the other party in any press information, marketing or
advertising materials or other release to the public without the prior written
approval of the other, which approval shall not be unreasonably withheld. The
foregoing shall not be deemed to prevent either party from making any public
announcement or issuing any circular which may be required by legislation or any
governmental or regulatory body or by the rules and regulations of any national
securities exchange upon which the securities of either party are traded;
provided that the disclosing party has notified the non-disclosing party of the
intended text of such public announcement and the non-disclosing party has been
given an opportunity to
24
29
comment on such text prior to its announcement. The disclosing party shall make
such changes as are reasonably requested.
Section 9.7 Expenses; Taxes. Medicis and Bioglan shall each be
responsible for their respective costs incurred in connection with this
Agreement and the transactions contemplated hereby. Except as otherwise provided
herein, Bioglan shall pay all recording fees and all taxes due by Bioglan in
connection with the transfer of the Purchased Assets to Bioglan hereunder.
Section 9.8 Headings. All headings in this Agreement are for
convenience only and shall not affect the interpretation or meaning of any
provision hereof.
Section 9.9 Entire Agreement. This Agreement and the Disclosure Letter,
together with the other agreements provided for herein, and the Schedules and
Exhibits attached hereto, constitutes the entire agreement of the parties,
merges all prior negotiations, agreements and understandings, and states in full
all representations and warranties applicable to this Agreement. To the extent
there are any inconsistencies between the provisions of this Agreement and the
Disclosure Letter, the Schedules and Exhibits and any of the other agreements
provided for herein, this Agreement shall govern.
Section 9.10 Waiver. No delay on the part of any party in exercising
any right, power, or privilege hereunder shall operate as a waiver thereof; nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies of any party based on, arising out
of or otherwise in respect of any inaccuracy in or breach of any representation,
warranty, covenant or agreement contained in this Agreement shall in no way be
limited by the fact that the act, omission, occurrence or other state of facts
upon which any claim of any such inaccuracy or breach is based may also be the
subject matter of any other representation, warranty, covenant or agreement
contained in this Agreement (or in any other agreement between the parties) as
to which there is no inaccuracy or breach.
Section 9.11 Severability. If any provision of this Agreement is found
or declared to be invalid or unenforceable by any court or other competent
authority having jurisdiction, such finding or declaration shall not invalidate
any other provision hereof, and this Agreement shall thereafter continue in full
force and effect except that such invalid or unenforceable provision, and (if
necessary) other provisions thereof, shall be reformed by a court of competent
jurisdiction so as to effect, insofar as is practicable, the intention of the
parties as set forth in this Agreement, provided that if such court is unable or
unwilling to affect such reformation, the invalid or unenforceable provision
shall be deemed deleted to the same extent as if it had never existed.
Section 9.12 Termination. If the Closing does not occur on or prior to
August 30, 1999 this Agreement shall terminate, but without prejudice to the
provisions of Section 2.2(b); provided that Medicis may, at its option, extend
this Agreement to a date no later than December 31, 1999 by providing notice to
Bioglan and Bioglan may, at its option, extend this Agreement to a date no later
than December 31, 1999 by providing notice to Medicis if the
25
30
Closing has not occurred by that date because any of the conditions set forth in
Section 4.1 have not been satisfied; provided, however, that the provisions of
Sections 9.3, 9.7, 9.12 and 9.13 and Article X shall survive the termination of
this Agreement; and provided further that such termination shall not relieve any
party hereto of any liability for any breach of this Agreement.
Section 9.13 Governing Law. This Agreement shall be governed by the
substantive laws of the State of Arizona, United States of America (without
regard to principles of conflict of laws) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
Bioglan consents and submits to the personal jurisdiction of the state and
federal courts in Arizona.
Section 9.14 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.15 Shareholder Approval. Subject to Section 9.12,
notwithstanding the Closing having taken place, if Bioglan shall for any reason
whatsoever fail to procure shareholder approval as provided in Section 7.5, then
(other than the assignment of the Dermastick License provided in Article XI,
which shall survive) the Closing shall be deemed for all purposes never to have
taken place and all documents delivered at the Closing shall be cancelled and
deemed to be null and void and all the Purchased Assets and Assumed Liabilities
shall be re-transferred to Medicis in the condition that they are in at such
time and the Micanol License Agreement shall be terminated; provided that the
Deposit shall be forfeited to Medicis and subject thereto, except for the
Security Agreement and the Trademark Security Agreement, neither party shall be
under any further liability or obligation to the other whether pursuant to this
Agreement or otherwise howsoever; provided, further, that the Security Agreement
and the Trademark Security Agreement shall remain in full force and effect.
ARTICLE X
ARBITRATION
Section 10.1 Submission to Arbitration. The parties shall promptly
submit to arbitration any dispute which may arise in connection with this
Agreement that is not promptly resolved by them, except that each party may seek
injunctive relief for breaches of this Agreement if either party makes a good
faith determination that a breach of the terms of this Agreement by the other
party will result in irreparable harm and that injunctive relief is the only
adequate remedy.
Section 10.2 Arbitrator and Rules of Arbitration. The American
Arbitration Association shall have jurisdiction over the arbitration, which
shall be conducted in accordance with the Commercial Arbitration Rules of such
Association, except as modified by agreement of the parties.
Section 10.3 Selection of Arbitrators. In the event a dispute is to be
submitted to arbitration pursuant to this Article X, the parties agree that the
dispute shall be resolved by a private arbitration conducted by one arbitrator.
Within ten (10) days after the submission of such dispute to arbitration, the
parties shall agree upon one arbitrator, selected from a panel of
26
31
five individuals, none of whom is an officer, director or employee of a party or
an Affiliate of such party, or a person who has a direct or indirect personal or
financial interest in the outcome of the arbitration, designated by the American
Arbitration Association from its permanent panel of commercial arbitrators. The
parties shall select the arbitrator by alternately striking names of the
individuals so designated until only one name remains. A coin toss will
determine which party is to strike the first name.
Section 10.4 Procedure. The arbitrator shall set a hearing date for an
arbitration (the "Hearing") within ninety (90) days from the date the arbitrator
is selected, unless otherwise agreed by the parties. At least fifteen (15) days
before the Hearing, each party shall submit to the arbitrator a list of all
witnesses and exhibits which it intends to present at the Hearing. No later than
five (5) days before the Hearing, each party shall provide to the arbitrator a
short (not to exceed five single-spaced pages or such other page limit as the
arbitrator permits) statement of its position with regard to the dispute.
Notwithstanding the Commercial Arbitration Rules, each party shall have the
right to conduct up to a total of two (2) depositions. At the Hearing, each
party shall, unless it waives the opportunity, make an oral opening statement
and an oral closing statement. The arbitrator shall not be strictly bound by
rules of procedure or rules of evidence, but shall use the Federal Rules of
Evidence as a guideline in conducting the Hearing. When testimony is complete
and each party has introduced its exhibits pursuant to the provisions of this
Agreement, and each party has made a closing statement pursuant to the
provisions of this Agreement or waived the opportunity to do so, the arbitrator
shall declare the Hearing closed; provided that the parties may submit
post-hearing briefs pursuant to an agreed upon schedule or a schedule formulated
by the arbitrator. The Hearing shall be conducted in private. Attendance at the
Hearing shall be limited to the following: (i) the arbitrator; (ii)
representatives of each party; (iii) each party's attorneys and such attorneys'
assistants or advisors, if any, including expert witnesses if any; (iv) a court
reporter if requested by either party; and (v) any witnesses. The arbitrator may
sequester witnesses upon the motion of a party. Within thirty (30) days of the
close of the Hearing or submission of the post-hearing briefs, the arbitrator
shall issue a written opinion and an award (the "Award") based on evidence,
arguments and post-hearing briefs, if any. The Award shall be a decision of the
arbitrator, shall resolve the parties' dispute and shall be final and binding on
the parties. Except as otherwise provided in this Agreement, there shall be no
ex parte communication regarding the subject matter of the Hearing, in which
event the arbitrator will render and deliver to the parties a written opinion
and Award within thirty (30) days of being notified that the parties waive the
Hearing. Notwithstanding any other provision of this Agreement, the arbitrator
shall have no power to delete from, add to or modify the terms of this
Agreement, and may not award any remedy which effectively conflicts directly or
indirectly with any provision of this Agreement.
Section 10.5 Arbitration Costs. In any arbitration, all of the
reasonable costs and expenses of the successful party ("Successful Party")
(including reasonable attorneys' fees and expenses), all fees and expenses of
experts retained by the Successful Party and all costs of the arbitrator shall
be borne by the losing party ("Losing Party") in such arbitration. The "Losing
Party" and the "Successful Party" shall be determined by the arbitrator based on
the relative success or failure of each party to such arbitration.
27
32
ARTICLE XI
DERMASTICK
Section 11.1 Assignment of Dermastick License. Notwithstanding any of
the other provisions of this Agreement, on June 30, 1999 Medicis will (or will
cause its relevant Affiliate to) sell, assign, convey, transfer and deliver to
Bioglan AB, and Bioglan will cause its Affiliate Bioglan AB to acquire from
Medicis or its Affiliate all of Medicis' or its Affiliate's right, title and
interest in, to and under the Dermastick License free from any liens, charges,
encumbrances, sub-licenses or other third party rights whatsoever.
Section 11.2 Consideration. The consideration for the assignment of the
Dermastick License shall be the sum of US $1,600,000 which sum shall (subject to
Section 11.3) be paid by Bioglan to Medicis on June 30, 1999.
Section 11.3 Offset. Provided that Bioglan shall obtain the shareholder
approval as provided in Section 7.5, the consideration paid pursuant to Section
11.2 shall be offset against and deducted from the sums otherwise due to Medicis
pursuant to the Promissory Note.
Section 11.4 Warranties. Medicis hereby represents and warrants to
Bioglan as of the date hereof as follows:
(a) neither Medicis nor any of its Affiliates has assigned, sublicensed
or granted, nor is there otherwise outstanding, any material lien or encumbrance
of any kind in or affecting the Dermastick License.
(b) Medicis or its relevant Affiliate has the full legal right, power
and authority to convey the Dermastick License.
(c) there are no material disputes or litigation known to Medicis
relating in any way to the Dermastick License.
Section 11.5 Form of Assignment. The assignment of the Dermastick
License shall be substantially in the form of the License Assignment set forth
in Exhibit A attached hereto with such amendments thereto as are appropriate
having regard to the identity of the assignor and assignee therein and the
consideration as are provided for in this Section 11.
Section 11.6 Deliveries. On June 30, 1999 Medicis shall (or shall cause
it relevant Affiliate to) execute and deliver to Bioglan AB an assignment of the
Dermastick License duly executed, together with the original Dermastick License
and Bioglan shall (or shall cause Bioglan AB to) execute and deliver to Medicis
a counterpart assignment of the Dermastick License duly executed, together with
payment of the consideration referred to in Section 11.2.
[SIGNATURE PAGE FOLLOWS]
28
33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
MEDICIS PHARMACEUTICAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
BIOGLAN PHARMA PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
29
34
SCHEDULE 2
TRADEMARKS
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
TRADEMARK COUNTRY REG. NO. REG. DATE CLASS & GOODS/
SERVICES
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
THERAPLEX US 1639471 4/2/91 IC3: DERMATOLOGICAL OINTMENT, NAMELY, SKIN
MOISTURIZERS.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
THERAPLEX CLEARLOTION US 1797498 10/12/93 IC5: Dermatologic products; namely, a
therapeutic skin emollient for the treatment
of dry or damaged skin.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 5/9/97 IC5: Pharmaceutical preparations.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 6/20/95 IC5: Topical dermatological preparations.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZONALON US 1864160 11/22/94 IC5: Topical dermatological preparations.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX CL 516,028 7/6/98 IC5: Topical analgesic preparation.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 7/7/87 IC5: Topical analgesic preparation.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX JP 2242915 7/30/90 Class 1: Chemicals, medicines, medical
accessories.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX KR 324198 10/17/95 IC10: Drugs for central nervous system,
drugs for peripheral nervous system, drugs
for sensory organs, drugs for skin, drugs for
dispensing use.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED CONDITIONING SYSTEM PU IC5: Conditioning component of a
dermatologic hair shampoo.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED CONDITIONING SYSTEM US IC5: Conditioning component of a
dermatologic hair shampoo.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED CONDITIONING SYSTEM US 1732211 11/10/92 Supplemental Register: IC3: Dermatologic
conditioning component of a hair shampoo.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED DELIVERY SYSTEM PU IC5: Conditioning component of a
dermatologic hair shampoo.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED DELIVERY SYSTEM US Principal Register: IC5: Carrier component
of a dermatologic hair shampoo.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED DELIVERY SYSTEM US 1744076 12/29/92 Supplemental Register: IC5: Carrier
component of dermatologic hair shampoo,
containing coal, tar, and conditioners.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ACTIVATED HYDROSILICONE US 1853452 9/13/94 IC5: Dermatologic preparation; namely a
component of a thermapeutic
30
35
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
TRADEMARK COUNTRY REG. NO. REG. DATE CLASS & GOODS/
SERVICES
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
skin emollient which functions to prevent
moisture loss through the skin.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 10/20/94 IC5: Topical analgesic products.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX US 1423561 1/6/87 IC5: Cream for relief of herpes zoster
(shingles).
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX US 1978408 6/4/96 IC5: Topical analgesic pharmaceutical
preparations.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX & DESIGN US 1989291 7/23/96 IC5: Topical analgesic preparations.
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
ZOSTRIX HP TRIPLE STRENGTH & US 1992073 8/6/96 IC5: Topical analgesic preparations.
Design
------------------------------ ----------------- ---------- --------------- ---------------------------------------------
31
36
SCHEDULE 3
DEFERRED PAYMENT ASSETS
All pharmaceutical topical preparations that are currently sold under the U.S.
tradenames:
Zostrix
Zonalon
Theramycin Z
Benzashave (Except in such territories described in the
Letter of Disclosure and Schedule 4 to this Agreement)
Pramegel
Texacort
A-Fil
Meted
Packer's Pine Tar Soap
Occlusal
Pentrax
Medicis makes no representation or warranty to the salability of the products
outside the ▇.▇.
▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ is granted the right to manufacture, market and sell the products listed
in Schedule 3 subject to the terms and conditions of the Licensing Agreements in
all territories of the world in which Bioglan decides to market the products,
except that with respect to the Benzashave product, Medicis has granted rights
to Embil Pharmaceutical Co. LTD to sell Benzashave in Turkey, Cyprus, Morocco,
Tunisia, Turkmenistan and Algeria.
33
38
SCHEDULE 5
OTHER AGREEMENTS
Chemsyn Agreement
34
39
SCHEDULE 6
PREVIOUS AGREEMENTS PRODUCTS
Theramycin Z
Benzashave
Pramegel
Texacort
A-Fil
Meted
Packer's Pine Tar Soap
Pentrax
Occlusal
TERRITORIES
All countries other than Canada
35
40
EXHIBIT A
FORM OF LICENSE ASSIGNMENT
36
41
EXHIBIT B
FORM OF TRADEMARK ASSIGNMENT
37
42
EXHIBIT C
FORM OF ▇▇▇▇ OF SALE
38
43
EXHIBIT D
FORM OF TRANSITION SERVICES AGREEMENT
39
44
EXHIBIT E
FORM OF CANADIAN LICENSE AGREEMENT
40
45
EXHIBIT F
FORM OF LICENSE AGREEMENT
41
46
EXHIBIT G
FORM OF PROMISSORY NOTE
42
47
EXHIBIT H
FORM OF SECURITY AGREEMENT
43
48
EXHIBIT I
FORM OF LICENSE TERMINATION
44
49
EXHIBIT J
FORM OF TRADEMARK SECURITY AGREEMENT
45