Exhibit 10.17(c)
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INTELLECTUAL PROPERTY AND OTHER ASSET PURCHASE AGREEMENT
Between
SANOFI-SYNTHELABO
And
CEPHALON FRANCE
Dated December 13, 2001
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**Certain portions of this document have been omitted based upon a
request for confidential treatment that has been filed with the Commission.
The omitted portions have been filed separately with the Commission.
TABLE OF CONTENTS
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ARTICLE 1: DEFINITIONS AND TERMS.............................................................................1
1.1 Specific Definitions................................................................................1
1.2 Other Definitional Provisions.......................................................................3
ARTICLE 2: TRANSFER OF INTELLECTUAL PROPERTY AND ASSETS AND LIABILITIES......................................4
2.1 Purchase and Sale of Transferred Assets:............................................................4
2.2 Obligations Undertaken..............................................................................4
ARTICLE 3: PURCHASE PRICE - PAYMENT OF PURCHASE PRICE........................................................5
ARTICLE 4: CLOSING/COMPLETION DATE...........................................................................7
4.1 Closing.............................................................................................7
4.2 Deliveries by Seller................................................................................7
4.3 Deliveries by Purchaser.............................................................................7
4.4 Completion Date.....................................................................................8
ARTICLE 5: REPRESENTATIONS AND WARRANTIES OF SELLER..........................................................8
5.1 Corporate Organization..............................................................................8
5.2 Corporate Authorization.............................................................................8
5.3 No Violations - Consents and Approvals..............................................................8
5.4 Transferred Contracts...............................................................................9
5.5 Compliance With Specifications......................................................................9
5.6 Product Registrations...............................................................................9
5.7 Litigation..........................................................................................9
5.8 Title and Ownership................................................................................10
5.9 Encumbrances.......................................................................................10
5.10 Sales and Profits Prior to Closing................................................................10
5.11 Absence of Lease..................................................................................10
5.12 No Breach of Novo Nordisk A/S Representations and Warranties......................................10
5.13 Brokers and Finders...............................................................................10
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF PURCHASER......................................................11
6.1 Corporate Organization.............................................................................11
6.2 Corporate Authorization............................................................................11
6.3 No Violations - Consents and Approvals.............................................................11
6.4 Brokers and Finders................................................................................11
ARTICLE 7: COVENANTS OF THE PARTIES.........................................................................12
7.1 Operation of the Transferred Assets Pending the Closing............................................12
7.2 Reasonable Efforts.................................................................................12
7.3 Execution of Agreements............................................................................12
7.4 Transfer of the Product Registrations, Related Applications and Dossiers...........................12
7.5 Transfer of the Transferred Contracts..............................................................13
7.6 Transfer of Books and Records and Promotional Material.............................................14
7.7 Adverse Event Reporting Responsibilities...........................................................14
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7.8 Confidentiality....................................................................................14
7.9 Non - competition:.................................................................................14
7.10 Further Actions...................................................................................15
ARTICLE 8: CONDITIONS PRECEDENT TO CLOSING..................................................................15
8.1 General Conditions.................................................................................15
8.2 Conditions to Obligations of Purchaser.............................................................15
8.3 Conditions to Obligations of Seller................................................................16
ARTICLE 9: TERMINATION......................................................................................16
ARTICLE 10: INDEMNIFICATION FOR BREACH OF REPRESENTATIONS AND WARRANTIES....................................16
10.1 Indemnification....................................................................................16
10.2 Indemnification for Direct Claims..................................................................17
10.3 Third Party Claims.................................................................................17
10.4 Limitation on Indemnity Payments...................................................................18
10.5 Survival of Representations and Warranties.........................................................19
ARTICLE 11: GENERAL PROVISIONS..............................................................................19
11.1 Expenses and Taxes.................................................................................19
11.2 Amendments.........................................................................................19
11.3 Entire Agreement...................................................................................20
11.4 Public Announcements...............................................................................20
11.5 Governing Law - Arbitration........................................................................20
11.6 Counterparts.......................................................................................20
11.7 Headings...........................................................................................20
11.8 Notices............................................................................................21
11.9 Severability.......................................................................................22
11.10 Binding Effect - No Assignment.....................................................................22
11.11 Language...........................................................................................22
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LIST OF SCHEDULES AND ANNEXES
Schedule I.4 List of the Product Registrations and of Pending Applications..............................24
Schedule I.5 List of Required Consents..................................................................25
Schedule I.7 List of Transferred Contracts..............................................................26
Schedule 5 Disclosure Schedule........................................................................27
Schedule 5.10 Information Relating to the Sales of the Licensed Products.................................28
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This Intellectual Property and Other Asset Purchase Agreement (the "
Agreement ") is made on December 13, 2001, by and between Sanofi-Synthelabo, a
French corporation with its principal place of business located at ▇▇▇, ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ("Sanofi-Synthelabo" or the "Seller"), and
Cephalon France, a French corporation with its principal place of business
located at ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇ "Purchaser").
Sanofi-Synthelabo and Purchaser are individually referred to as a
"Party" and collectively as the "Parties".
Unless otherwise indicated, capitalized terms used herein shall have
the meaning set forth in Article I hereof.
WITNESSETH:
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WHEREAS, Sanofi-Synthelabo is licensed by Novo Nordisk A/S for the use
in France of industrial property rights related to pharmaceutical drugs
containing tiagabine as its active ingredient, Novo Nordisk A/S having retained
full ownership of the trademark Gabitril(R).
WHEREAS, Purchaser intends to purchase and acquire certain Intellectual
property and other assets and rights (including the right to the hereinabove
referred license agreement between Sanofi-Synthelabo and Novo Nordisk A/S with
respect to the Territory) related to such pharmaceutical product, and
Sanofi-Synthelabo intends to sell such intellectual property and other assets
and rights;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein, the
Parties hereto agree as follows:
ARTICLE 1: DEFINITIONS AND TERMS
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1.1 Specific Definitions
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As used in this Agreement, the following terms shall have the meanings
set forth or as referenced below:
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For the purpose of this definition, "control" means the
possession of the power to direct or cause the direction of management and
policies of such Person, whether through direct or indirect ownership of voting
securities or otherwise.
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"Agreement" shall mean this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof, including
the Annexes and Schedules hereto.
"Ancillary Agreements" shall mean collectively, the Gabitril License
Amendment and the Gabitril Consent to Assignment.
"Business Days" shall mean any day other than a Saturday, a Sunday or a
day on which banks in Paris (France) are obligated by law or executive order to
close.
"Closing" shall mean the closing of the transactions contemplated in
this Agreement.
"Closing Date" shall have the meaning specified in Section 4.1 (a).
"Completion Date" shall have the meaning specified in Section 4.4.
"Disclosure Schedule" shall have the meaning specified in Article 5.
"Dossiers" shall mean any and all product registration applications,
their respective pricing and reimbursement approval applications (if
applicable), including all supporting files, writings, data, studies and
reports, compiled in final form and submitted to the competent Governmental Body
for granting of a Product Registration and of the relevant pricing and
reimbursement approval (if applicable);
"Gabitril License Agreement" shall mean the License Agreement dated as
of December 2, 1997 between Sanofi, a French corporation the legal successor of
which is Sanofi-Synthelabo, and Novo Nordisk A/S.
"Gabitril License Amendment" shall mean the Amendment to the Gabitril
License Agreement to be entered into prior to the Closing between Novo Nordirsk
A/S and Sanofi-Synthelabo.
"Gabitril Consent to Assignment" shall mean the agreement to be entered
into, on, or prior to, the Closing, between Novo Nordisk A/S, Purchaser and
Sanofi-Synthelabo whereby Novo Nordisk A/S consents to the assignment by Seller
to Purchaser of its rights and obligations under the Gabitril License Agreement
with respect to the Territory.
"Governmental Body" shall mean any government or governmental or
regulatory body thereof, or political subdivision thereof, whether national,
federal, state, local or foreign, or any other agency or instrumentality
thereof.
"Licensed Product" shall have the meaning specified in Section 1.6 of
the Gabitril License Agreement.
"Obligations Undertaken" shall have the meaning specified in Section
2.2 (a).
"Person" shall mean any individual, corporation, partnership,
association, trust or other legal entity or organization, having legal
personality, or the right to ▇▇▇ in its own name.
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"Product Registration" shall mean, to the extent transferable, any
approvals issued by the relevant Governmental Bodies of the Territory to import,
distribute and/or sell the Licensed Product in such country. To the extent
transferable, the Product Registration shall include the pricing and
reimbursement approval (if applicable). Schedule I.4 sets forth the list of (i)
all Product Registrations issued to the Seller and/or to its Affiliates relating
to the importation, distribution and sale of the Licensed Product, and (ii) of
all applications for a Product Registration currently pending.
"Purchaser's Designee" shall have the meaning specified in Section
12.10.
"Required Consents" shall mean the consents, approvals and waivers
referred to on Schedule I.5.
""Specifications" shall mean the specifications of the Licensed Product
and raw materials as defined in the Product Registrations.
"Territory" shall mean France.
"Transferred Assets" shall have the meaning specified in Section 2.1
(a).
"Transferred Books and Records" shall mean all books and records
relating exclusively to the Licensed Product, including without limitation
accounting books and records and the results of tests and studies made by
Sanofi-Synthelabo or its Affiliates in connection with the Licensed Product, but
only to the extent they relate exclusively to the Territory and excluding
customer lists, if any.
"Transferred Contracts" shall mean the contracts listed on Schedule I.7
and Unsatisfied Orders.
"Transitory Distribution Agreement" shall mean the distribution
agreement to be signed between Sanofi-Synthelabo France and Purchaser pursuant
to which Sanofi-Synthelabo France will continue after the Completion Date to
distribute the Licensed Product for a short term period.
"Unsatisfied Order" shall have the meaning specified in Section 2.1
(a).
[**].
1.2 Other Definitional Provisions
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(a) the words "hereof", "herein", "hereinafter", "hereinabove" and
words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not any particular provision of this Agreement. A
reference to an Article, Section, Schedule or Annex is, except as otherwise
expressly stated, a reference to an Article or Section of, or a Schedule or
Annex to, this Agreement.
(b) Terms defined in the singular shall have a comparable meaning when
used in the plural, and vice versa.
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(c) The words "include", "includes" and "including" are not limiting.
ARTICLE 2: TRANSFER OF INTELLECTUAL PROPERTY AND ASSETS AND LIABILITIES
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2.1 Purchase and Sale of Transferred Assets:
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(a) Upon the terms and subject to the conditions of this Agreement,
subject to the conditions precedent set forth at Article 8, on the Completion
Date, Seller shall, and/or shall cause its Affiliates to, sell, transfer, and
assign to Purchaser, and Purchaser shall purchase, acquire and assume from
Seller and/or its Affiliates, all right, title, and interest of the Seller
and/or such Affiliates under the Gabitril License Agreement, to which
Sanofi-Synthelabo is entitled as of the date hereof, including the product
development rights (as provided for in the Gabitril License Agreement), all the
rights inuring to Sanofi-Synthelabo under the license of trademarks and patents
granted thereunder, and all related goodwill (including without limitation
Unsatisfied Orders of Licensed Products received from third parties (other than
Affiliates of Seller) within the Territory prior to the Completion Date), but in
each case only with respect to the Territory. "Unsatisfied Order" shall mean for
the purposes of this agreement any order of Licensed Products which is not
shipped by Seller or its Affiliates on the Completion Date.
(b) The Transferred Assets shall exclude any asset or right not
specifically listed in Section 2.1 (a). In particular, shall not be included in
the Transferred Assets, any and all rights to the accounts receivable related to
the sales of the Licensed Product prior to the Completion Date (other than with
respect to any Unsatisfied Orders of Licensed Products), such rights remaining
vested in Seller and/or its Affiliates.
2.2 Obligations Undertaken
----------------------
(a) Upon the terms and subject to the conditions of this Agreement,
subject to the conditions precedent set forth at Article 8, on the Completion
Date, Purchaser shall undertake to fulfill and be liable for the following
obligations, liabilities, commitments and/or indebtedness of the Seller and/or
its Affiliates (the "Obligations Undertaken"), in each case only with respect to
the Territory:
(i) any obligation, liability, commitment and/or indebtedness
incurred after the Completion Date in respect of any of the Transferred Assets ,
including, but not limited to, any obligation arising under the Gabitril License
Agreement, including any liabilities of the Seller related to Seller's
representations and warranties in the Gabitril License Agreement;
(ii) any obligation, liability, commitment and/or indebtedness
incurred after the Completion Date with respect to the manufacture, marketing,
distribution and/or sale of the Licensed Product; and
(iii) any obligation, liability, commitment and/or indebtedness
specifically undertaken by Purchaser under this Agreement.
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(b) The Parties agree that Purchaser shall not hereunder assume or
become liable for any obligation, commitment and or indebtedness other than the
Obligations Undertaken. In particular, the following shall not be included in
the Obligations Undertaken (i) any and all obligations related to accounts
payable with respect to goods purchased or services rendered prior to the
Completion Date, Seller and/or its Affiliates remaining liable for the payment
of such accounts payable, and (ii) any and all obligations, liabilities,
commitments and/or indebtedness relating to the employment contract of Seller's
and Seller's Affiliates' employees dedicated to the operation of the Transferred
Assets and of the related business, Seller and Seller's Affiliates remaining
fully liable for any such obligations, liabilities, commitments and/or
indebtedness.
(c) For the avoidance of doubt, prior to the Completion Date,
Sanofi-Synthelabo shall terminate, and shall cause each of its Affiliates to
terminate, at its own cost and expenses, to the extent they relate to the
Licensed Product and the Territory (i) the sub-license agreement between
Sanofi-Synthelabo and Sanofi-Winthrop Industrie according to which
Sanofi-Synthelabo has granted to Sanofi-Winthrop Industrie a sub-license of the
industrial property rights related to the Licensed Product, and (ii) any and all
the existing distribution agreements between Sanofi-Winthrop Industrie and
Sanofi-Synthelabo France according to which the Licensed Product is marketed in
the Territory. Seller shall indemnify and hold harmless Purchaser from and
against any claim of any of such Affiliates in connection with the termination
of the hereabove referred agreements and/or with the collection of the Purchase
Price.
For the further avoidance of doubt, it is expressly understood and
agreed that none of the employees of Seller or its Affiliates is employed in
whole, or for more than one half of his working hours in connection with the
distribution or sale of Licensed Product and therefore Purchaser shall not be or
be deemed liable for any transfer or deemed transfer of employees, in
consequence of which Seller shall indemnify Purchaser if its becomes obliged to
bear any liability related to Seller's employees of Seller or its Affiliates.
ARTICLE 3: PURCHASE PRICE - PAYMENT OF PURCHASE PRICE - ADVANCE
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PAYMENT INDEMNITY
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(a) Upon the terms and subject to the conditions of this Agreement,
Purchaser shall deliver or cause to be delivered to Seller at the Closing, in
full payment of the aforesaid sale, transfer and assignment of the Transferred
Assets, immediately available funds in the total amount of Euros [**] (the
"Purchase Price"). Payment of the purchase price shall be made by a bank check
("cheque de banque") drawn on a French bank reasonably acceptable by Seller, to
be delivered to Seller on the Closing. The Purchase Price shall not be subject
to any adjustment or revision except as provided hereafter and represents the
entire purchase price of the Transferred Assets.
(b) In consideration for the fact that the Purchaser shall pay the
Purchase Price on the Closing Date but that the transfer of the Transferred
Assets shall only occur on the Completion Date, Seller shall pay to Purchaser,
as an advance payment indemnity, an amount equal to the net margin of Seller 's
Affiliates or any order of Licensed Product shipped to third party customers in
the Territory (other than Affiliates of Seller) from, and including, the
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Closing Date to the Completion Date (the "Net Margin"). For the purpose of this
clause, Net Margin shall be equal to [**] of Net Sales in the Territory.
Net Sales shall have the same meaning as in the Transitory Distribution
Agreement. Net Sales from the Closing Date to December 31, 2001 shall be deemed
to be equal to 18/31st of the Net Sales during the entire month of December.
Seller shall notify the amounts of Net Margin, together with the amount and
localization of the Net Sales on which such Net Margin was made, within 20
Business Days from the Completion Date. Purchaser (or a designated
representative of Purchaser) shall have the right to review all work papers and
procedures used to calculate the Net Sales and shall have the right to perform
any other reasonable procedures necessary to verify the accuracy thereof.
Unless, within fifteen (15) Business Days after notification to Purchaser of the
amount of the Net Margin, Purchaser notifies Seller in writing that it objects
to the calculation of the Net Margin and specifies the basis for such objection,
such calculation of Net Margin shall become final and binding upon the Parties
for the purpose of this Article 3. If Purchaser objects and if Purchaser and
Seller are unable to resolve all of Purchaser's objections within fifteen (15)
Business Days after such notification has been given, all remaining matters in
dispute shall be submitted to the office of KPMG-Peat Marwick located in the
Paris Region, or if such office of KPMG-Peat Marwick is not available or refuses
to act, another accounting firm to be chosen among the offices of
internationally reputed accounting firms ("big five") in the Paris Region other
than the auditors of Seller or Purchaser (KPMG - Peat Marwick or such other
firm, as the case may be, are referred to herein as the "Accounting Firm"). In
the event Seller and Purchaser are unable to agree upon the selection of the
Accounting Firm within five (5) Business Days after expiration of the herein
above referred fifteen (15) Business Day period, the Accounting Firm shall be
appointed by the International Center for Expertise of the International Chamber
of Commerce, Paris, France at the request of the most diligent party. The
International Center for Expertise shall not, however, administer the dispute
resolution procedure. The request to the International Center for Expertise
shall include a copy of the present clause and shall stipulate that the
Accounting Firm shall be a French firm affiliated to one of the "big five"
networks and based in the Paris Region. The Accounting Firm shall, acting as
experts and not as arbitrators, make a final determination as to all remaining
matters in dispute with respect to Net Margin which determination shall be
conclusive and binding on Purchaser and Seller. Purchaser and Seller agree to
cooperate with each other in order to resolve any and all matters in dispute as
soon as possible. Purchaser shall provide Seller and Seller's accountants full
access to the Transferred Books and Records, to any other information, and to
its employees, and shall cooperate with Seller, to the extent necessary for
Seller to calculate the Net Margin.
Within thirty (30) Business Days after the Net Margin has been finally
determined in accordance with the procedure set forth above, Seller shall pay
the Net Margin to Purchaser. Such payment shall be made by wire transfer to the
account specified by Purchaser to this effect.
ARTICLE 4: CLOSING/COMPLETION DATE
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4.1 Closing
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(a) Unless otherwise mutually agreed between the Parties, the Closing
will take place at 10:00 a.m. at the Geneva offices of Sanofi S.A./AG on
December 13, 2001 (the "Closing Date"), provided that all conditions precedent
set for in Article 8 have been satisfied, or at such later date as the Parties
hereto may agree.
(b) Notwithstanding anything to the contrary contained in this
Agreement, to the extent that the sale, transfer and assignment or attempted
sale, transfer and assignment, of any Transferred Asset requires any Required
Consent and such Required Consent shall not have been obtained at or prior to
the Closing Date, this Agreement shall not constitute a sale, transfer and/or
assignment, or any attempted sale, transfer and/or assignment with respect to
such Transferred Asset, until such Required Consent is obtained.
4.2 Deliveries by Seller
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At the Closing, Seller shall deliver or cause to be delivered to
Purchaser the following:
(a) The Gabitril License Amendment, duly executed by Novo-Nordisk A/S
and Sanofi-Synthelabo;
(b) The Gabitril Consent to Assignment, duly executed by Novo-Nordisk
A/S and Sanofi-Synthelabo;
(c) The Transitory Distribution Agreement duly executed by
Sanofi-Synthelabo France; and
(d) all such other deeds, endorsements, assignments and other
instruments as, in the reasonable opinion of Purchaser, shall be necessary to
vest in Purchaser title to the Transferred Assets.
4.3 Deliveries by Purchaser
-----------------------
At the Closing, Purchaser shall deliver or cause to be delivered to
Seller the following:
(a) the payment of the Purchase Price by bank check as set forth in
Section 3.(a);
(b) subject to delivery under Section 4.2 (b), the Gabitril Consent to
Assignment, duly executed by Novo-Nordisk A/S, Sanofi-Synthelabo and Purchaser;
(c) The Transitory Distribution Agreement duly executed by Purchaser;
and
(d) all such other instrument of assumption as, in the reasonable
opinion of Seller, shall be necessary to vest in Purchaser the Obligations
Undertaken as of the Completion Date.
4.4 Completion Date
---------------
Notwithstanding any other provision of this Agreement, the Parties
agree that the
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transfer of the Transferred Assets, and the undertaking to fulfill the
Obligations Undertaken as provided in Article 2 hereof shall only be effective
on January 31st, 2002, in order to enable the parties to take all measures each
of them deems appropriate in order to implement the transaction contemplated
hereby without disruption.
ARTICLE 5: REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby represents and warrants to Purchaser that, except as
disclosed in Schedule 5 attached hereto (the "Disclosure Schedule"):
5.1 Corporate Organization
----------------------
Each of Seller and each of its Affiliates in the Territory is a
corporation duly organized, validly existing and in good standing under the laws
of France and Seller and such Affiliates have all requisite corporate power and
authority to own and operate their properties and to carry on their businesses
as now conducted.
5.2 Corporate Authorization
-----------------------
Each of Seller and each of its Affiliates in the Territory has full
corporate power and authority to execute and deliver this Agreement and each
other agreement, document, instrument or certificate contemplated by this
Agreement to be executed by Seller or any of such Affiliates in connection with
the consummation of the transactions contemplated hereby and thereby and to
perform fully its obligations hereunder and thereunder. The execution, delivery
and performance by Seller of this Agreement and the execution, delivery and
performance by Seller of any of the Ancillary Agreements has been duly
authorized or, as far as the Ancillary Agreements are concerned, shall have been
duly authorized at the Closing Date, by all necessary corporate action on the
part of Seller. This Agreement constitutes, and each of the Ancillary Agreements
when so executed and delivered will constitute, legal, valid and binding
obligations of Seller enforceable against it in accordance with their respective
terms.
5.3 No Violations - Consents and Approvals
--------------------------------------
Subject to receipt of the Required Consents, if any, the execution,
delivery and performance of this Agreement and of the Ancillary Agreements and
the consummation of the transactions contemplated hereby and thereby do not and
will not, (i) conflict with, violate, result in the breach of, or constitute a
default under any law or regulation applicable to Seller and/or any of its
Affiliates, (ii) conflict with, violate, result in the breach of, or constitute
a default under, any provision of the certificate of incorporation or by-laws or
similar documents of Seller or any of its Affiliates, (iii) conflict with,
violate, result in the breach of, constitute a default under, or result in the
termination, cancellation, acceleration of any right or obligation of Seller or
any of its Affiliates under the Gabitril License Agreement and/or the
Transferred Contracts, or more generally otherwise modify the terms or
conditions of such Gabitril License Agreement and/or Transferred Contracts,
except as provided under the Gabitril License Amendment. Except for the Required
Consents, no consents, approvals or waivers are required on the part of Seller
or any of its Affiliates in connection with the execution delivery and
performance of this Agreement or of any of the Ancillary
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Agreements, or the consummation of the transactions contemplated hereby and
thereby.
5.4 Transferred Contracts
---------------------
Seller and/or its Affiliates have performed all of the obligations
required to be performed under the Transferred Contracts, and none of them is in
material default thereunder. To Seller's knowledge, no party to any of the
Transferred Contracts is in material default thereunder. Neither Seller nor any
of its Affiliates, has received from any party to any of the Transferred
Contracts (i) any notice that any such party intends to terminate any such
Transferred Contract, or (ii) any claim of material breach from any such party
with respect to the performance of obligations pursuant to any such Transferred
Contract. Each such Transferred Contract constitutes the legal, valid and
binding obligations of Seller or its corresponding Affiliate, and such
Transferred Contract is enforceable in accordance with its terms. Except for
Required Consents, Purchaser will succeed to all rights, title and interests of
Seller and/or the corresponding Affiliate under each Transferred Contract
without necessity to obtain the consent by the other party or parties to the
assignment of such Transferred Contract.
5.5 Compliance With Specifications
------------------------------
All the Licensed Product under its finished form sold prior to the
Closing was in compliance with the Specifications.
5.6 Product Registrations
---------------------
(a) To Seller's knowledge, each Product Registration listed on Schedule
I.4 has been validly issued by the appropriate Governmental Body.
(b) Seller and/or its Affiliates are in material compliance with all
regulatory, agency and other requirements of all competent Governmental Bodies
relating to the Product Registrations listed on Schedule I.4, and (ii) neither
Seller nor such any of such Affiliates has received any notice or charge, which
has not been complied with or withdrawn, by such Governmental Bodies asserting
any material violation of any such regulatory, agency or other requirement.
5.7 Litigation
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There are no Legal Proceedings pending against Seller or any of the
Affiliates, or to Seller's knowledge currently threatened, that relate (i) to
the manufacture, distribution and/or sale of the Product, or (ii) to any of the
Transferred Assets. [**].
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5.8 Title and Ownership
-------------------
Seller and/or its Affiliates have good and marketable title to, and
ownership of, the Transferred Assets and related business which have been
created and/or developed by them on the basis of the rights granted by
Novo-Nordisk A/S under the Gabitril License Agreement. Except as otherwise
expressly set forth herein, Seller does not make any express or implied warranty
regarding the condition of any of the Transferred Assets or of it related
business.
5.9 Encumbrances
------------
The Transferred Assets are free and clear of all pledges, liens or
other encumbrances.
5.10 Sales and Profits Prior to Closing
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Schedule 5.10 attached to this Agreement contain the information
relating to the sales of the Licensed Product, as realized by Seller and/or its
Affiliates with non-related customers, during the three (3) year period
preceding the Closing and the corresponding net profits or losses during the
same period. Considering the specificity of the Transferred Assets, Purchaser
acknowledges and agrees that such profit and loss figures, which have been
determined according to Sanofi-Synthelabo group's accounting rules and extracted
from Sanofi-Synthelabo group's analytical accounting system, are only estimates
prepared in good faith on the basis of the books and records of Seller and of
the structure of operations in place within the Sanofi-Synthelabo group, and
that, as such, they are not relevant to assess the expected profitability in the
future of the business related to the Transferred Assets as such business may be
operated in a group other than the Sanofi-Synthelabo group. Purchaser
acknowledges and agrees that through the Due Diligence Process referred to in
Section 10.3 (a) of this Agreement it has had access, prior to the date hereof,
to all information necessary for Purchaser to assess the expected profitability
of the business related to the Transferred Assets, following the Closing Date.
5.11 Absence of Lease
----------------
No right to occupancy of any real estate to the benefit of Purchaser
shall result from, or arise out of, the sale, transfer and assignment of the
Transferred Assets under this Agreement.
5.12 No Breach of Novo Nordisk A/S Representations and Warranties
------------------------------------------------------------
There is no specific fact, event or circumstance which it considers
likely to constitute a breach by Novo Nordisk A/S of Novo Nordisk's
representations and warranties under Section 18 of the Gabitril License
Agreement.
5.13 Brokers and Finders
-------------------
There is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of Seller or any
Affiliate of Seller who might be entitled to any fee or commission from
Purchaser or any Affiliate of Purchaser in connection with the transactions
contemplated by this Agreement or any of the Ancillary Agreements.
10
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF PURCHASER
------------------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
6.1 Corporate Organization
----------------------
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and Purchaser
has all requisite corporate power and authority to own and operate its
properties and to carry on its business as now conducted.
6.2 Corporate Authorization
-----------------------
Purchaser has full corporate power and authority to execute and deliver
this Agreement and each other agreement, document, instrument or certificate
contemplated by this Agreement to be executed by Purchaser in connection with
the consummation of the transactions contemplated hereby and thereby and to
perform fully its obligations hereunder and thereunder. The execution, delivery
and performance by Purchaser of this Agreement and of any of the Ancillary
Agreements has been duly authorized by all necessary corporate action on the
part of Purchaser. This Agreement constitutes, and each of the Ancillary
Agreements when so executed and delivered on or prior to the Closing Date will
constitute, legal, valid and binding obligations of Purchaser enforceable
against it in accordance with their respective terms.
6.3 No Violations - Consents and Approvals
--------------------------------------
The execution, delivery and performance by Purchaser of this Agreement
or of any of the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby, do not, and will not, (i) conflict with,
violate, result in the breach of, or constitute a default under any law or
regulation applicable to Purchaser, (ii) conflict with, violate, result in the
breach of, or constitute a default under, any provision of the certificate of
incorporation or by-laws of Purchaser, (iii) conflict with, violate, result in
the breach of, constitute a default under, or result in the termination,
cancellation, acceleration of any right or obligation of Purchaser or under any
contract by which Purchaser is bound. No consents, approvals or waivers are
required on the part of Purchaser in connection with the execution and delivery
of this Agreement or of any of the Ancillary Agreements, or the consummation of
the transactions contemplated hereby and thereby.
6.4 Brokers and Finders
-------------------
There is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of Purchaser or any
of its Affiliates who might be entitled to any fee or commission from Seller or
any Affiliate of Seller in connection with the transactions contemplated by this
Agreement or any of the Ancillary Agreements.
11
ARTICLE 7: COVENANTS OF THE PARTIES
-----------------------------------
7.1 Operation of the Transferred Assets Pending the Closing
-------------------------------------------------------
Until the Completion Date, Seller shall, and shall cause its Affiliates
to, (unless prior written consent of Purchaser or except as otherwise
contemplated by this Agreement):
(a) continue to deal with the Transferred Assets consistent with past
practices. In particular, and without limitation to the generality of the
foregoing, Seller shall and shall cause its Affiliates to deal with any
Unsatisfied Order of Licensed Products in the ordinary course of business,
consistent with past practice and taking into account any specific requirement
of third party customers;
(b) in the event that Seller or any of its Affiliates receives written
notice by a competent Governmental Body of a material violation of any
regulatory, agency or other requirement relating to the Product Registrations,
undertake all such actions as may be necessary to cure such material violation;
(c) not amend or terminate the Gabitril License Agreement.
7.2 Reasonable Efforts
------------------
Upon the terms and subject to the conditions hereof, each of the
Parties shall use its commercially reasonable efforts to fulfill the conditions
precedent set forth in Article 8 hereof, to the extent it is within its power to
fulfill such conditions. Each Party shall use all its commercially reasonable
efforts to cooperate with the other Party for such purpose.
7.3 Execution of Agreements
-----------------------
On the Closing Date, Seller and Purchaser shall execute the Gabitril
Consent to Assignment.
7.4 Transfer of the Product Registrations, Related Applications
and Dossiers
-----------------------------------------------------------
The Product Registrations and related applications shall be transferred
to Purchaser, in accordance with the following provisions: (a) Seller shall use,
and shall cause its Affiliates to use, all commercially reasonable efforts to
complete the transfer of the corresponding Product Registrations as promptly as
practicable after the Completion Date to the benefit of Purchaser.
Purchaser shall accept the transfer of the corresponding Product
Registrations and, for such purpose, shall formalize with Seller and/or its
Affiliates, as promptly as practicable, all necessary documents. More generally,
Purchaser shall use all commercially reasonable efforts to assist Seller for the
transfer of such Product Registrations.
If the transfer is not possible within the hereafter referred time
limits, and/or permitted under applicable laws and regulations, Seller and/or
its Affiliates shall have the right (i) to discontinue the promotion of the
Licensed Product at the expiration of a period of [**] after
12
the Completion Date, and (ii) to discontinue the sale of the Licensed Product at
the expiration of a period of [**] after the Completion Date, it being
understood that, in such case, Seller and/or its Affiliates shall use all
commercially reasonable efforts to maintain the corresponding Product
Registration in full force and not to withdraw it until the expiration of a
period of [**] after the Completion Date, unless said date is extended by mutual
written agreement of the Parties. At the expiration of such [**] period, Seller
and/or its Affiliates shall have the right to withdraw such Product
Registration.
During the period from the Completion Date to the date at which the
transfer of the Product Registration shall have been completed, Seller shall
continue to promote, market, distribute and sell the Licensed Product in France,
or shall cause its Affiliates to continue to do so, consistent with past
practice, in its name but as Purchaser's distributor, on an interim basis, in
accordance with the conditions of the Transitory Distribution Agreement.
(b) Each of the Parties shall bear all its internal costs resulting
from the implementation of the provisions of this Section 7.4. Purchaser shall
bear all external costs resulting from the implementation of the provisions of
this Section 7.4. Purchaser shall therefore, upon presentation of the
appropriate documentation evidencing such costs, reimburse to Seller or to its
Affiliates, as appropriate all the external costs incurred by Seller and such
Affiliates for the implementation of the provisions of this Section 7.4. Such
reimbursement shall be made on a quarterly basis and at cost.
7.5 Transfer of the Transferred Contracts
-------------------------------------
(a) On the Completion Date, and subject to the Required Consents,
Seller shall transfer, or shall cause its Affiliates to transfer, to Purchaser
the Transferred Contracts, including any and all Unsatisfied Orders for Licensed
Products received from customers in the Territory prior to such Completion Date.
Seller shall use, and shall cause each of its Affiliates to use, all its
commercially reasonable efforts to obtain the Required Consents as promptly as
practicable after the Completion Date (to the extent relating to Transferred
Contracts it entered into).
(b) In each instance in which a Required Consent cannot be obtained, or
if an attempted transfer or assignment would be ineffective or would adversely
affect the ability of Seller and/or the corresponding Affiliate to convey the
interest in question to Purchaser, Seller shall use, and/or shall cause the
corresponding Affiliate to use, all its commercially reasonable efforts to enter
into any such alternative arrangement and agreement with Purchaser as may be
appropriate in order to allow Purchaser to realize, receive and enjoy
substantially similar and equivalent rights and benefits. For the avoidance of
doubt, nothing in this Agreement shall be interpreted or construed (i) as an
attempt to transfer or assign any Transferred Contract that is by its terms
non-transferable or assignable without the consent of the other party or parties
thereto, and (ii) as far as any such Required Consent is concerned, as a
condition precedent to Purchaser's obligations under this Agreement.
13
7.6 Transfer of Books and Records and Promotional Material
------------------------------------------------------
As promptly as reasonably possible after the Completion Date, Seller
shall transmit, and/or shall cause its Affiliates to transmit, to Purchaser all
Transferred Books and Records, Dossiers and promotional material relating to the
Licensed Product, with the exception of the Transferred Books and Records and
the promotional material the possession of which will be necessary or useful to
Seller and/or its Affiliates for the implementation of its/their obligations
under this Agreement or under any of the Ancillary Agreements, such Transferred
Books and Records being, in such case, transmitted to Purchaser following full
completion of such obligations by Seller and/or its Affiliates.
Seller and/or its Affiliates shall have the right to retain the
Transferred Books and Records for legal, regulatory, tax or accounting purposes,
so long as Seller or such Affiliates provide at least one copy of such Books and
Records to Purchaser.
Seller shall give, and shall cause its Affiliates to give, access to
its and/or their books and records that relate only partially to the Licensed
Product subject to the following conditions: (i) the information relating to the
Licensed Product will be necessary to Purchaser for the manufacture and/or sale
of the Licensed Product or to satisfy Purchaser's tax or financial reporting
requirements, (ii) such books and records do not contain information relating to
the activities of Seller, any of its Affiliates, and/or any third party the
nature and/or content of which would be confidential for Seller, its Affiliates,
or to any third party, (iii) the access will be given in Seller's offices at
normal business hours, and (iv) all information included in such books and
records that do not relate to the Licensed Product shall be subject to the
signature by Purchaser, prior to disclosure, of a confidentiality and restricted
use agreement containing provisions at least as strict as the provisions defined
in Section 20.2 of the Gabitril License Agreement. If the information relating
to the Licensed Product can be physically extracted from the corresponding books
and records, Purchaser shall have the right to require from Seller to extract
such information. All internal and external costs incurred by Seller as
consequence of such extraction shall be borne by Purchaser.
7.7 Adverse Event Reporting Responsibilities
----------------------------------------
Seller shall comply with the Adverse Event Reporting Provisions
contained in the Transitory Distribution Agreement for the duration
hereof.
7.8 Confidentiality
---------------
The terms and conditions of this Agreement shall be maintained in
confidence by each of the Parties from and after the date hereof with the same
degree of care as it maintains its own confidential and proprietary information
and shall not be - without the prior written consent of the other Party not to
be unreasonably withheld - published, disseminated or disclosed to any third
party nor used by such Party for any purpose except to the extent necessary for
the performance of this Agreement.
7.9 Non - Competition:
-------------------
During a period of three (3) years after the Completion Date, Seller
shall not, directly or through any of its Affiliates, except in accordance with
the terms and conditions of any
14
agreement between Seller and/or its Affiliates, on the one hand, Purchaser
and/or its Affiliates, on the other hand, manufacture, distribute and/or sell
any pharmaceutical product containing Tiagabine (as such term is defined in
Section 1.17 of the Gabitril License Agreement) as active ingredient, in the
Territory.
7.10 Further Actions
---------------
Each of the Parties shall, and shall cause its Affiliates, to execute
and deliver such instruments and take such other actions as, in the reasonable
opinion of the other Party, may be required to carry out the intent of this
Agreement, and consummate the transactions contemplated hereby. In particular
and without limitation to the foregoing, Seller shall cause its Affiliates to
cooperate with Purchaser and its Affiliates in order to ensure a smooth and
orderly transfer of the manufacturing and distribution of the Licensed Products
upon termination or expiration of the Transitory Distribution Agreement, as
provided pursuant to the provisions of such agreement.
ARTICLE 8: CONDITIONS PRECEDENT TO CLOSING
------------------------------------------
8.1 General Conditions
------------------
The obligations of each Party hereto to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing of the following conditions:
(a) No order, statute, rule, regulation, executive order, injunction,
stay, decree or restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or Governmental Body that
prohibits the consummation of the transactions contemplated hereby, and no
Proceeding by any third party, including, but not limited to, any Governmental
Body shall be pending which seeks to prohibit or declare illegal or invalid or
which seeks to enjoin or obtain monetary damages in respect of, the transactions
contemplated hereby,
(b) Novo Nordisk A/S shall have executed the Gabitril License
Amendment; and
(c) Novo Nordisk A/S shall have executed the Gabitril Consent to
Assignment.
8.2 Conditions to Obligations of Purchaser
--------------------------------------
The obligations of Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, or waiver
by Purchaser, at or prior to the Closing, of the following condition: (i) Seller
shall have performed in all material respects its obligations required under
this Agreement to be performed by it at or prior to the Closing (including, but
not limited to deliveries according to Section 4.2), and (ii) the
representations and warranties made by Seller according to the provisions of
this Agreement shall be true and correct in all material respects at and as of
the date hereof and at and as of the Closing Date as though restated on and as
of such date (except in the case of any representation or warranty that by its
terms is made as of a date specified therein, in which case such representation
or warranty shall be true and correct in all material respect as of such date).
15
8.3 Conditions to Obligations of Seller
-----------------------------------
The obligations of Seller to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction, or waiver by Seller, at
or prior to the Closing, of the following conditions: (i) Purchaser shall have
performed in all material respects its obligations required under this Agreement
to be performed by it at or prior to the Closing (including, but not limited to,
deliveries according to Section 4.3 and (ii) the representations and warranties
made by Purchaser according to the provisions of this Agreement shall be true
and correct in all material respects at and as of the date hereof and at and as
of the Closing Date as though restated on and as of such date (except in the
case of any representation or warranty that by its terms is made as of a date
specified therein, in which case such representation or warranty shall be true
and correct in all material respect as of such date);
ARTICLE 9: TERMINATION
----------------------
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing:
(a) by the written agreement of each of Purchaser and Seller; or
(b) by either Purchaser or Seller, by giving written notice of such
termination to the other Party, if the Closing shall have not occurred on, or
before the expiration of a period of three (3) months after the date of
execution of this Agreement.
ARTICLE 10: INDEMNIFICATION FOR BREACH OF REPRESENTATIONS AND WARRANTIES
------------------------------------------------------------------------
10.1 Indemnification
---------------
(a) Indemnification by Seller: From, and after, the Closing, and
subject to the provisions of this Article 10, Seller hereby agrees to indemnify
and hold harmless Purchaser and/or its Affiliates from and against any and all
claims, liabilities, obligations, judgments, penalties, losses, costs and
expenses (including, without limitation, the reasonable fees and expenses of
counsel (collectively referred to as the "Damages") incurred by Purchaser and/or
its Affiliates in connection with (i) any material inaccuracy or breach of any
representation or warranty on the part of Seller contained herein, and (ii) any
obligation, liability, commitment and/or indebtedness incurred in connection
with the operation of the Transferred Assets and of the related business prior
to the Closing other than the Obligations Undertaken.
(b) Indemnification by Purchaser: From, and after, the Closing, and
subject to the provisions of this Article 10, Purchaser hereby agrees to
indemnify and hold harmless Seller and/or its Affiliates from and against any
and all Damages incurred by Seller or Seller's Affiliates in connection with (i)
any material inaccuracy or breach of any representation or warranty on the part
of Purchaser contained herein, and (ii) any of the Obligations Undertaken.
(c) All claims made by any Party (the "Indemnifiable Party") against
the other Party
16
(the "Indemnifying Party") under this Article 10 shall be asserted as
contemplated by section 10.2 below.
10.2 Indemnification for Direct Claims
---------------------------------
In the event of a claim (other than a Third Party Claim as defined in
Section 10.3) made by one party and/or its Affiliates under Section 10.1 (a) or
(b) as the case may be (a "Direct Claim"), the Indemnifiable Party shall notify
such Direct Claim in writing to the Indemnifying Party with reasonable
promptness, specifying the nature of such Direct Claim and the amount or
estimated amount thereof (which estimate shall not be conclusive of the final
amount of such Direct Claim).
10.3 Third Party Claims
------------------
(a) In the event that (i) any claim, demand or action, suit or legal,
administrative, arbitration or other alternative dispute resolution proceeding
or investigation (each, a "Proceeding" and collectively, "Proceedings") is
asserted or instituted by any party other than the Parties and their Affiliates
which could give rise to Damages for which an Indemnifying Party would be liable
to an Indemnifiable Party hereunder (such Proceeding being hereinafter referred
to as a "Third Party Claim"), the Indemnifiable Party shall with reasonable
promptness send to the Indemnifying Party a written notice specifying the nature
of such claim or demand and the amount or estimated amount (which estimate shall
not be conclusive of the final amount of such claim and demand) (a "Third Party
Claim Notice").
(b) In the event of a Third Party Claim, the Indemnifying Party may
retain counsel of its choice, reasonably acceptable to the Indemnifiable Party,
to represent the Indemnifiable Party and any others the Indemnifying Party may
reasonably designate in connection with such claim or demand and shall pay the
fees and disbursements of such counsel with regard thereto. If requested by the
Indemnifying Party, the Indemnifiable Party agrees to cooperate with the
Indemnifying Party and its counsel in contesting any claim or demand which the
Indemnifying Party defends, or, if appropriate and related to the claim in
question, in making any counterclaim against the person asserting the Third
Party Claim or demand, or any cross-complaint against any person. No claim or
demand may be settled without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed.
(c) From and after the delivery of a Claim Notice hereunder, at the
reasonable request of the Indemnifying Party, the Indemnifiable Party shall
grant the Indemnifying Party and its representatives all reasonable access to
the books, records and properties of the Indemnifiable Party to the extent
reasonably related to the matters to which the Third Party Claim Notice relates.
The Indemnifying Party will not, and shall require that its representatives do
not, use (except in connection with such Third Party Claim Notice) or disclose
to any third Person other than the Indemnifying Party's representatives (except
as may be required by applicable Laws) any information obtained pursuant to this
Section which is designated confidential by the Indemnifiable Party. All such
access shall be granted during normal business hours and shall be granted under
conditions which will not interfere with the business and operations of the
Indemnifiable Party.
17
10.4 Limitation on Indemnity Payments
--------------------------------
(a) General Limitations:
(i) Subject to the provisions of Section 10.4 (b) (i), if an
Indemnifying Party pays to an Indemnifiable Party an amount in respect of a
Claim, and the Indemnifiable Party subsequently recovers or is entitled to
recover part or all of such amount from a third party (including tax
authorities) in relation to the same Claim, the Indemnifiable Party shall take
all reasonable steps to obtain such payment and, immediately thereupon, shall
pay to the Indemnifying Party the amount thereby recovered from such third
party; provided, however, that the cumulated sums paid to the Indemnifying Party
shall not exceed the amount paid by the Indemnifying Party and shall also not
exceed the amount paid by such third party less any costs, fees and expenses,
duly evidenced, incurred by the Indemnifiable Party in connection with the
recovery of such amount from such third party.
(ii) No Party hereto shall be entitled, under Section 10.1, to
claim any indemnification (x) on the basis of any and all facts, events or
circumstances which are explicitly disclosed in this Agreement or in any
Schedule hereto or (y) in respect of any breach of a representation or warranty
to the extent it was aware of such breach at the date hereof.
In particular, Purchaser acknowledges that it has been given
access by Seller to the documents listed in the Data Room Index communicated
today by Seller to Purchaser during a due diligence process (the "Due Diligence
Process"), and that, without limiting in any way the generality of the
foregoing, Purchaser shall not be entitled to claim any indemnification under
this Agreement on the basis of any and all facts or matters which have been
explicitly disclosed to Purchaser during such Due Diligence Process.
(iii) No Indemnifiable Party may seek or obtain indemnification
more than one (1) time from the same Indemnifying Party for any claim in which
the facts and circumstances are identical in all material respects to the facts
and circumstances with respect to which there was a final determination or
settlement under this Article 10 of a claim brought by such Indemnifiable Party
against such Indemnifying Party. If any claim for indemnification is based upon
a liability which is contingent only, the Indemnifiable Party shall not be
liable to make any indemnification payment unless and until such contingent
liability becomes due and payable; provided however that any claim for
indemnification that is made with respect to a contingent liability prior to the
termination of the survival period defined in Section 10.4 shall not be denied,
and no Indemnifying Party's liability hereunder shall be extinguished because
such liability remains contingent at the end of such survival period.
(iv) The Indemnifiable Party shall take all reasonable steps to
avoid or mitigate any Damages in respect of which it might be entitled to
indemnification pursuant to this Article 10.
(b) Limitation on Indemnity Payments by Seller
(i) No claim for indemnification under Section 10.1 may be made by
Purchaser or aggregated for the purposes of paragraph (ii) and no payment in
respect
18
thereof shall be required from Seller or any of its Affiliates with respect to
any Damage for which Purchaser shall be entitled to a claim towards Novo Nordisk
A/S according to the provisions of Section 19 of the Gabitril License Agreement.
(ii) No claim for indemnification under Article 10 may be made by
Purchaser and no payment in respect of any material inaccuracy or breach of any
representation or warranty on the part of Seller contained herein shall be
required from Seller or any of its Affiliates unless (x) the amount of each
individual claim for which indemnification is sought exceeds Euros [**], and (y)
the aggregate amount of Damages resulting from such individual claims exceeds
Euros [**] (and then only for the amount of such excess).
10.5 Survival of Representations and Warranties
------------------------------------------
(a) The Parties hereby agree that, except as set forth in Section 10.4
(b), the representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement and the Closing hereunder
for a period of three (3) years after the Closing and any claim for
indemnification arising out, or resulting from, an alleged inaccuracy or breach
of any such representations and warranties must be made prior to the termination
of such period.
(b) Each representation and warranty contained in Sections 5.1, 5.2,
5.3, 6.1, 6.2 and 6.3 shall survive the execution and delivery of this Agreement
and the Closing hereunder until the applicable statute of limitations governing
claims with respect to such representations and warranties has expired.
ARTICLE 11: GENERAL PROVISIONS
------------------------------
11.1 Expenses and Taxes
------------------
Each Party shall pay all fees and expenses incurred by it in connection
with this Agreement and the transactions contemplated hereby, except that the
Parties agree that all applicable excise, sales, use, registration and/or value
added, transfer, stamp, documenting, filing, recordation and other similar taxes
(excluding, for the avoidance of doubt, income taxes), levies, fees and charges,
if any, that may be imposed upon, or payable or collectible or incurred in
connection with this Agreement and the transactions contemplated hereby shall be
borne by Purchaser, regardless of the Party on which such taxes, levies, fees or
charges are imposed. Purchaser shall provide Seller with a copy of this
Agreement, duly registered with French tax authorities pursuant to Article 719
of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tax Code and bearing the corresponding registration
references.
11.2 Amendments
----------
This Agreement may be amended, supplemented or modified and any
provision hereof may be waived, only pursuant to a written instrument making
specific reference to this Agreement and executed by duly authorized
representatives of the Parties.
19
11.3 Entire Agreement
----------------
This Agreement constitutes the entire agreement among the Parties with
respect to the matters herein and supersedes any previous agreements and
understandings between the Parties with respect to those matters.
11.4 Public Announcements
--------------------
Purchaser and Seller will consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement, the other Party's name or the transactions contemplated hereby and
neither Purchaser nor Seller shall issue any such press release or make any such
public statement without having first submitted a draft thereof to the other
Party. The issuance thereof shall not be made without the prior written approval
of the other Party (such approval not to be unreasonably withheld). However,
such approval shall be unnecessary if the disclosing Party is subject to a legal
requirement to disclose the existence and terms of this Agreement. In such
event, the disclosing Party shall notify without delay the other Party and
provide the other Party with a copy of the contemplated disclosure prior to
submission or release as the case may be, unless notifying is impossible due to
circumstances beyond the Party's control. The other Party may provide comments
to the submission or release and the disclosing Party shall in such case take
into consideration all such reasonable comments. Unless otherwise agreed with
the other Party the disclosing Party shall only disclose such information that
is needed to comply with the applicable law.
11.5 Governing Law - Arbitration
---------------------------
(a) This Agreement shall be governed in all respects by the laws of
France, including validity, interpretation and effect, without regards to the
principle of conflicts of laws that might otherwise be applicable.
(b) All disputes arising in connection herewith shall be finally
settled under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce ("ICC") as in effect as of the date of commencement of the
arbitration proceedings, by three (3) arbitrators. The arbitration proceeding
shall take place in Paris (France) and shall be conducted in the English
language. The arbitration decision shall be binding upon the Parties and
judgment upon any award rendered may be entered in any court having
jurisdiction.
11.6 Counterparts
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument.
11.7 Headings
--------
The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
20
11.8 Notices
-------
All notices and other communications under this Agreement shall be in
writing and in English language and shall be deemed to have been duly given when
delivered in person or upon confirmation of receipt when transmitted by
facsimile transmission or on receipt after dispatch by registered or certified
mail, postage prepaid, addressed as follows (or at such other address as the
Party to whom notice is to be given has furnished in writing to the other
Party):
If to Seller:
Sanofi-Synthelabo
▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇)
Attention: General Counsel
Telephone: + ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 30
Facsimile: + ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 85
With a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇
Attention: Gael Saint Olive
Telephone: ▇▇▇(▇) ▇ ▇▇ ▇▇ ▇▇ 39
Facsimile: +33(0) 1 56 59 39 38
If to Purchaser:
Cephalon France
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇ (▇▇▇▇▇▇)
Attention: President
Telephone: + ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 05
Facsimile: + ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 00
With a copy to:
Cephalon, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (U.S.A.)
Attention: General Counsel & Secretary
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: + 1 610 738 6590
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With a copy to:
Dechert
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇(▇) ▇ ▇▇ ▇▇ ▇▇ 00
Facsimile: ▇▇▇(▇) ▇ ▇▇ ▇▇ ▇▇ 05
11.9 Severability
------------
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or unenforceability of any other provision of this
Agreement, each of which shall remain in full force and effect. However the
Parties agree to substitute any invalid or unenforceable provision by a valid
and enforceable provision which maintains, to the greatest extent possible, the
respective interests of the Parties as established by the present terms and
conditions of the Agreement.
11.10 Binding Effect - No Assignment
------------------------------
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. Nothing in this
Agreement shall create or be deemed to create any third party beneficiary rights
in any Person not party to this Agreement. No assignment of this Agreement or of
any rights or obligations hereunder may be made by any Party without the prior
written consent of the other Party and any attempted assignment without such
required consent shall be null and void.
11.11 Language
--------
This Agreement is executed in the English and French languages. In the
event of an inconsistency between the two versions, the English language version
shall prevail.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written in three originals including one for registration
purposes, in Geneva, Switzerland.
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Seller:
SANOFI-SYNTHELABO
/s/ ▇▇▇▇ ▇▇▇▇▇
....................
By: ▇▇▇▇ ▇▇▇▇▇
Title: Director, Legal Operations
Purchaser:
CEPHALON FRANCE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
....................
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in Fact
Schedule I.4
LIST OF THE PRODUCT REGISTRATIONS AND OF PENDING APPLICATIONS
[**]
SCHEDULE I.5
LIST OF REQUIRED CONSENTS
[**]
SCHEDULE I.7
LIST OF TRANSFERRED CONTRACTS
[**]
SCHEDULE 5
DISCLOSURE SCHEDULE
[**]
SCHEDULE 5.10
INFORMATION RELATING TO THE SALES OF THE LICENSED PRODUCTS
[**]
