Exhibit 10.99
The omitted portions indicated by asterisks have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2 of the Securities and Exchange Act of 1934, as
amended.
SHARE PURCHASE AGREEMENT
BETWEEN
Q-MED INTERNATIONAL B.V.
AND
STARTSKOTTET 21914 AB
DATED AS OF FEBRUARY 10, 2003
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SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT dated as of February 10, 2003 (this
"AGREEMENT") between Q-Med International Holding B.V., a company organized under
the laws of the Netherlands (the "SELLER"), and Medicis Sweden Holdings AB, a
company organized under the laws of the Kingdom of Sweden (the "PURCHASER").
WHEREAS, the Seller owns all of the outstanding shares (the
"SHARES") of HA North American Sales AB, a company organized under the laws of
the Kingdom of Sweden ("NEWCO");
WHEREAS, the Seller desires to sell the Shares to the
Purchaser and the Purchaser desires to purchase the Shares, subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ACTION" shall mean any action, claim, suit, litigation,
arbitration, investigation, notification, audit or other proceeding brought by a
Governmental Authority or other Person.
"AESTHETIC ENHANCEMENT" shall mean the alteration of the
visual appearance, visual form or visual shape of the naked human body or any of
its components; provided that Aesthetic Enhancement shall not be deemed to
include modification, restoration, adjustment or correction of functions of the
human body or any of its component parts.
"AFFILIATE" of a Person shall mean, with respect to any
Person, any other Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such Person. As used in this definition, the term "CONTROL" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract, or otherwise.
"AGREEMENT" shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the terms hereof.
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"AMENDED AND RESTATED LICENSE AGREEMENT" shall mean the
Amended and Restated Intellectual Property License Agreement, to be entered into
prior to the Closing Date between Newco and Q-Med, amending and restating the
License Agreement.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a day on which banks in New York or Sweden are authorized or obligated
by Law or executive order to remain closed.
"CANADA'S FDA" means Health Canada's Food and Drugs Act,
R.S.C. 1985, c. F-27, as amended.
"CHANGE IN CONTROL" shall mean (a) the disposition of all or
substantially all of the outstanding shares, assets or business of a Party on a
consolidated basis; or (b) any transaction or event (or series of transactions
or events) as a result of which any Person (other than an Affiliate of such
Party), acting singly or as a part of a "partnership, limited partnerships,
syndicate or group" (within the meaning of Section 13(d)(3) of the United States
Securities Exchange Act of 1934, as amended): (i) acquires (by purchase, merger,
consolidation or otherwise) or for the first time controls or is able to vote
(directly or through nominees, beneficial ownership, proxy or contract) fifty
percent (50%) or more of the aggregate of all outstanding equity securities of a
Party; or (ii) acquires (by purchase, merger, consolidation or otherwise) or for
the first time is able to nominate or designate (directly or through nominees,
beneficial ownership, proxy or contract) at least fifty percent (50%) of the
nominees to the board of directors of such Party, in each of (a) or (b), in the
event that the Seller or the Purchaser, as the case may be, was not a party to
the applicable transaction and/or such transaction was not approved by the Board
of Directors of the Seller or the Purchaser, as the case may be.
"COMMERCIAL DISTRIBUTION" shall mean a distribution in
accordance with the terms and conditions of the Transaction Agreements for
purposes other than Investigational Distribution.
"CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality
Agreement, dated as of December 5, 2002, between Credit Suisse First Boston
(Europe) Limited, solely as Q-Med's representative, and Medicis Pharmaceutical
Corporation, a Delaware corporation ("MEDICIS"), as the same may be amended from
time to time in accordance with its terms, which shall supercede and replace in
their entirety any and all confidentiality agreements or arrangements entered
into prior to the Closing Date by the Parties or their respective officers,
directors, employees, agents, consultants or representatives with respect to the
transactions contemplated by the Transaction Agreements, other than the Prior
Confidentiality Agreement which shall continue in full force and effect in
accordance with its terms.
"ESCROW AGENT" shall mean an escrow agent selected by mutual
agreement of the Seller and the Purchaser.
"ESCROW AGREEMENT" shall mean the Escrow Agreement to be
entered into among the Seller, the Purchaser and the Escrow Agent, in
substantially the form attached hereto as Exhibit B, with such changes and
additions as the Escrow Agent shall reasonably request to
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the extent agreed to by the Parties, as the same may be amended from time to
time in accordance with its terms.
"FDA" shall mean the United States Food and Drug
Administration.
"FDCA" shall mean the United States Federal Food, Drug and
Cosmetic Act of 1938, as amended (21 U.S.C. 301 et seq.).
"FIELD" shall mean dermatologic aesthetic enhancement and the
aesthetic enhancement of the lips.
"GOVERNMENTAL AUTHORITY" shall mean any supranational,
national, federal, state, provincial or local judicial, legislative, executive
or regulatory authority.
"HSR ACT" shall mean the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder.
"IMPROVEMENTS" shall mean any replacements, improvements or
modifications, including without limitation, new indications or new uses, in
each case in the Field.
"INVESTIGATIONAL DISTRIBUTION" shall mean distribution in
accordance with the terms and conditions of the Transaction Agreements pursuant
to the requirements of 21 C.F.R. Part 812 in the United States and Part 3 of the
Canadian Medical Device Regulations SOR/98-282 in Canada.
"LAWS" shall mean all applicable laws, statutes, rules,
regulations, ordinances, and other pronouncements of law of any Governmental
Authority.
"LICENSE AGREEMENT" shall mean the Intellectual Property
License Agreement, dated as of December 20, 2002 between Q-Med AB, a company
organized under the laws of the Kingdom of Sweden ("Q-MED"), and Q-Med Holding
Sweden AB, a company organized under the laws of the Kingdom of Sweden and a
wholly owned subsidiary of Q-Med ("HOLDCO"), which was assigned by Holdco to
Newco as of December 27, 2002.
"LICENSED PRODUCTS" ****
"LICENSED RIGHTS" shall have the meaning set forth in the
Amended and Restated License Agreement.
"LOSS" or "LOSSES" shall mean any and all damages, fines,
fees, penalties, deficiencies, losses and expenses, including reasonable legal
fees and expenses but excluding loss of profits or other special, punitive or
consequential damages.
"NEW PRODUCTS" ****
"NEWCO ORGANIZATIONAL DOCUMENTS" shall have the meaning set
forth in Section 3.1 hereof.
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"PARTY" shall mean the Seller or the Purchaser and, when used
in the plural, means both the Seller and the Purchaser or their respective
Permitted Transferees or Third Party transferees, in each case upon the
consummation of a Transfer in accordance with the terms and conditions herein.
"PERMITTED TRANSFEREE" shall mean Medicis or any Affiliate of
Medicis or the Seller, as applicable, of whom Medicis or the Seller, as
applicable, owns or controls more than fifty percent (50%) of the voting
securities or economic interest; provided, that the Purchaser or the Seller, as
applicable, shall remain directly liable for the performance by the Permitted
Transferee of all obligations of the Purchaser or the Seller, as applicable,
under this Agreement and no Transfer to a Permitted Transferee hereunder shall
relieve the Purchaser or the Seller, as applicable, of its obligations pursuant
to this Agreement.
"PERSON" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture or other entity or
organization.
"PMA APPLICATION" shall mean a premarket approval application
under section 515(c) of the FDCA requesting FDA's approval to commercially sell
and distribute a Licensed Product in the United States and its territories and
possessions, including all information submitted with or incorporated by
reference therein.
"PMA APPROVAL" shall mean approval from the FDA of a PMA
Application.
"PMA SUPPLEMENT" shall mean a supplemental application to an
approved PMA Application requesting FDA's approval of a Licensed Product or
relating to the manufacture or Labeling thereof, including all information
submitted with or incorporated by reference therein.
"PMA SUPPLEMENT APPROVAL" shall mean FDA's approval of a PMA
Supplement allowing Commercial Distribution of a Licensed Product.
"PRE-CLOSING TAX PERIOD" shall mean any Tax period ending on
or before the Closing Date; and, with respect to a Tax period that begins on or
before the Closing Date and ends thereafter, the portion of such Tax period
ending on the Closing Date.
"PRIOR CONFIDENTIALITY AGREEMENT" shall have the meaning set
forth in Section 5.6(c) hereof.
"REGULATORY APPROVALS" shall have the meaning set forth in the
Supply Agreement.
"SUPPLY AGREEMENT" shall mean the Supply Agreement to be dated
as of the Closing Date between Q-Med and Medicis as the same may be amended from
time to time in accordance with its terms.
"TAX" or "TAXES" shall mean (i) any income, gross receipts,
license, capital, profits, sales, use, franchise, property, transfer,
registration, value added, or other tax of any kind whatsoever (whether payable
directly or by withholding), including any interest, penalty, or addition
thereto, whether disputed or not, imposed by any taxing authority (a "TAXING
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AUTHORITY"), (ii) liability for payment of any amount of the type described in
clause (i) as a result of having been before the Closing Date a member of an
affiliated, consolidated, combined or unitary group, or party to any agreement
or arrangement, and (iii) liability for the payment of any amount as a result of
being a party to any Tax sharing agreement or with respect to the payment of any
amount of any Person of the type described in (i) or (ii) as a result of any
existing express or implied agreement or arrangement.
"TAX RETURN" shall mean any return, declaration, report, form,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"TERRITORY" shall mean United States, including its
territories and possessions, and Canada.
"THIRD PARTY" shall mean any Person who or which is neither a
Party nor an Affiliate of a Party.
"TRADEMARKS" shall have the meaning set forth in the Asset
Transfer Agreement, dated as of December 20, 2002, between Q-Med and Holdco, a
true and correct copy of which, including any and all amendments, modifications
or supplements thereto, is attached hereto as Exhibit C.
"TRANSFER" shall mean any Change in Control or Volitional
Change in Control of a Party or a transfer or assignment by a Party of its
rights and obligations under this Agreement.
"TRANSFEREE" shall mean any Person who or which acquires
Shares from the Purchaser in accordance with the terms and conditions of this
Agreement and simultaneously therewith shall have succeeded to the Purchaser's
rights and obligations hereunder Transferred to it all in accordance with this
Agreement.
"TRANSACTION AGREEMENTS" shall mean this Agreement, the Supply
Agreement, the Amended and Restated License Agreement, the Escrow Agreement and
the Confidentiality Agreement.
"VOLITIONAL CHANGE IN CONTROL" shall mean (a) the disposition
of all or substantially all of the outstanding shares, assets or business of a
Party on a consolidated basis; or (b) any transaction or event (or series of
transactions or events) as a result of which any Person (other than an Affiliate
of such Party), acting singly or as a part of a "partnership, limited
partnerships, syndicate or group" (within the meaning of Section 13(d)(3) of the
United States Securities Exchange Act of 1934, as amended): (i) acquires (by
purchase, merger, consolidation or otherwise) or for the first time controls or
is able to vote (directly or through nominees, beneficial ownership, proxy or
contract) fifty percent (50%) or more of the aggregate of all outstanding equity
securities of a Party; or (ii) acquires (by purchase, merger, consolidation or
otherwise) or for the first time is able to nominate or designate (directly or
through nominees, beneficial ownership, proxy or contract) at least fifty
percent (50%) of the nominees to the board of directors of such Party, in each
of (a) or (b), in which the Seller or the Purchaser, as the case may be, was a
party to the applicable transaction or of which the Board of Directors of the
Seller or the Purchaser, as the case may be, shall have approved.
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1.2. OTHER DEFINITIONAL PROVISIONS.
(a) The words "HEREOF", "HEREIN", "HERETO" and
"HEREUNDER" and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
(b) The terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
(c) The term "INCLUDING" shall mean "INCLUDING, WITHOUT
LIMITATION".
(d) When a reference is made in this Agreement to an
Article, a Section or Schedule, such reference shall be to an Article of, a
Section of or a Schedule to, this Agreement unless otherwise indicated.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1. PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement, at the Closing the Seller shall sell, assign,
transfer and deliver to the Purchaser and the Purchaser shall purchase from the
Seller the Shares.
2.2. PURCHASE PRICE. The purchase price for the Shares
shall be Xxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$160,000,000.00)
(the "PURCHASE PRICE") and shall be paid as follows:
(a) Fifty-Eight Xxxxxxx Xxx Xxxxxxx xxx Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (US$58,240,000.00) shall be paid upon the Closing Date to
the Seller, which amount shall be paid to the Seller free and clear of, and
without deduction for, any withholding or similar taxes.
(b) Xxxxx-Xxxxx Xxxxxxx Xxx Xxxxxxx xxx Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (US$53,280,000) (the "ESCROW AMOUNT") shall be paid upon
the Closing Date by wire transfer in immediately available funds to the Escrow
Agent for deposit pursuant to the terms of the Escrow Agreement. Subject to
Section 2.2(d) below, upon the receipt by the Seller or its Affiliates of the
PMA Approval with respect to Restylane(R), the Seller shall promptly provide
written notice and a copy of such approval to the Purchaser and the Escrow
Agent. Within ten (10) Business Days following the date of such notice, the
Purchaser shall provide written notice to the Seller and the Escrow Agent
whether it accepts such approval, and on the next succeeding Business Day after
any such acceptance, the Escrow Agent shall pay to the Seller the Escrow Amount
and shall pay to the Purchaser any income on the Escrow Amount, such payment to
the Seller to be payable free and clear of, and without deduction for, any
withholding or similar taxes (such payment sometimes referred to herein as a
"MILESTONE PAYMENT" or the "RESTYLANE(R) MILESTONE PAYMENT").
(c) The Purchaser shall pay to the Seller the additional
milestone payments as set forth below, each such payment to be paid to the
Seller free and clear of, and without
8
deduction for, any withholding or similar taxes (each, a "MILESTONE PAYMENT" and
in the aggregate with the Restylane(R) Milestone Payment, the "MILESTONE
PAYMENTS").
(i) Upon the aggregate cumulative net sales for a
consecutive twelve (12) month period of the Licensed Products in the
Territory in accordance with the Transaction Agreements by the
Purchaser and its Affiliates reaching Forty Million United States
Dollars (US$40,000,000.00) (the "NET SALES MILESTONE PAYMENT"), the
Purchaser shall promptly, and in any event within ten (10) Business
Days following a month end, provide to the Seller written notice
thereof and the Purchaser shall pay to the Seller Nineteen Million
Three Hundred Sixty Thousand United States Dollars (US$19,360,000).
Notwithstanding the foregoing, if the Seller reasonably believes that
such Net Sales Milestone Payment has been reached by the Purchaser and
its Affiliates and the Seller has not received written notice thereof
from the Purchaser, the Seller shall have the right to inspect, upon
reasonable prior notice to the Purchaser and during the Purchaser's
normal business hours, the books and records of the Purchaser and its
Affiliates related thereto; and
(ii) Upon the receipt by the Seller or its Affiliates of
the PMA Approval or PMA Supplement Approval with respect to
Perlane(TM), the Seller shall promptly provide written notice and a
copy of such approval to the Purchaser. Within ten (10) Business Days
following the date of such notice, the Purchaser shall provide written
notice to the Seller whether it accepts such approval, and within five
(5) Business Days of any such acceptance, the Purchaser shall pay to
the Seller Twenty-Nine Million Xxx Xxxxxxx xxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Dollars (US$29,120,000) (the "PERLANE(TM) MILESTONE PAYMENT").
(d) In the event that the PMA Approval with respect to
(i) Restylane(R) referenced in Section 2.2(b) above or (ii) Perlane(TM)
referenced in Section 2.2(c)(ii) above is received by the Seller or its
Affiliates**** the Purchaser shall state in its notice of acceptance of such PMA
Approval, to be delivered in accordance with Section 2.2(b) or 2.2(c)(ii), as
the case may be, that the Purchaser accepts such PMA Approval **** and (i) the
Escrow Agent shall pay to the Seller with respect to Restylane(R), (A)
Twenty-Six Million Six Hundred and Forty Thousand United States Dollars
(US$26,640,000) on the next Business Day after receipt by the Seller and the
Escrow Agent of the Purchaser's notice of acceptance of such PMA Approval and
(B) Twenty-Six Million Six Hundred and Forty Thousand United States Dollars
(US$26,640,000) on the next Business Day after receipt by the Purchaser and the
Escrow Agent from the Seller of a copy of FDA documentation **** and (ii) the
Purchaser shall pay to the Seller with respect to Perlane(TM), (A) Fourteen
Million Five Hundred and Sixty Thousand United States Dollars (US$14,560,000) on
the next Business Day after receipt by the Seller of the Purchaser's notice of
acceptance of such PMA Approval and (B) Fourteen Million Five Hundred and Sixty
Thousand United States Dollars (US$14,560,000) within five (5) Business Days
after receipt by the Purchaser from the Seller of a copy of FDA
documentation****.
(e) No part of any payments made in accordance with this
Section 2.2 shall under any circumstances or for any reason whatsoever be
refundable to, or recoverable by, the Purchaser; provided that nothing in this
Section 2.2(e) shall affect the rights or obligations of the Parties pursuant to
Article IX hereof.
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2.3. CLOSING. (a) The closing of the transactions
contemplated hereby (the "CLOSING") will take place at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 425 Lexington Avenue, New York, New York, or at such other
place as may be mutually agreeable in writing by the Parties hereto, on the
third Business Day following the satisfaction or waiver of the conditions set
forth in Article VI and Article VII, respectively, or such other date as the
Parties may agree to in writing (the "CLOSING DATE"). At the Closing, the
Parties hereto will duly execute and deliver all documents and instruments
required to be delivered, and the Purchaser will make all payments required to
be paid by the Purchaser at the Closing, in each case as provided in this
Agreement. The Closing of the transactions contemplated hereby shall be deemed
to have occurred as of 12:01 a.m. (New York City time) on the Closing Date.
(b) At the Closing, the Seller shall deposit the Shares
with the Escrow Agent on behalf of the Purchaser, such Shares shall be held by
the Escrow Agent in accordance with the terms of the Escrow Agreement.
2.4. METHOD OF PAYMENT. All amounts payable by the
Purchaser hereunder shall be paid in United States Dollars by wire transfer in
immediately available funds to such bank account as designated from time to time
in writing by the Seller to the Purchaser at least three (3) Business Days prior
to the date such payment is due.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser
that:
3.1. CORPORATE ORGANIZATION AND AUTHORITY. The Seller is a
company duly organized, validly existing and in good standing under the Laws of
the Netherlands and has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. Newco is a company duly
organized, validly existing and in good standing under the laws of the Kingdom
of Sweden and a true, correct and complete copy of the registration certificate
and articles of association of Newco as in effect as of the date of this
Agreement are attached hereto as Exhibit E (the "NEWCO ORGANIZATIONAL
DOCUMENTS"). The execution and delivery by the Seller of this Agreement, the
performance by the Seller of its obligations hereunder, and the consummation by
the Seller of the transactions contemplated hereby have been duly authorized by
all requisite corporate action. This Agreement has been duly executed and
delivered by the Seller and, assuming the due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium, or other Laws of general
application relating to or affecting enforcement of creditors' rights and Laws
concerning equitable remedies.
3.2. OWNERSHIP OF THE SHARES. (a) The authorized capital
stock of Newco consists of 1,000 shares of par value 100 SEK per share (the
"EQUITY SECURITIES") and no shares of Equity Securities are held by Newco as
treasury stock. The Shares represent all of the issued and outstanding Equity
Securities. The Shares were duly authorized for issuance and are validly
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issued, fully paid and non-assessable. The Seller holds of record and
beneficially the Shares, free and clear of any lien, mortgage, pledge,
encumbrance, charge or other security interest (collectively, "LIENS"). Upon
delivery of and payment for the Shares as contemplated herein, the Seller will
transfer to the Purchaser good and valid title to the Shares, free and clear of
all Liens.
(b) There is no existing option, warrant, call, right,
commitment or other agreement to which the Seller or Newco is a party requiring,
and there are no securities of Newco outstanding which upon the conversion or
exchange would require, the issuance, sale or transfer of any additional shares
of capital stock or other equity securities of Newco or other securities
convertible into, exchangeable for or evidencing the right to subscribe for or
purchase capital stock or other equity securities of Newco. Neither the Seller
nor Newco is a party to any voting trust or other voting agreement with respect
to any of the shares of Equity Securities or to any agreement relating to the
issuance, sale, redemption, transfer or other disposition of the capital stock
of Newco other than this Agreement.
3.3. NO CONFLICT. Except as set forth on Schedule 3.3, the
execution, delivery and performance by the Seller of this Agreement and the
consummation by the Seller of the transactions contemplated hereby do not and
will not, with or without the giving of notice or the passage of time or both,
violate, conflict with or cause a breach or termination of or constitute a
default under (i) the provisions of any Law applicable to the Seller or its
properties or assets, or applicable to Newco or its properties or assets; (ii)
the provisions of the constituent organizational documents or other governing
instruments of the Seller or Newco; (iii) any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which the Seller or
Newco is a party or by which either of them or the Licensed Products, Licensed
Rights or the Trademarks are bound or subject, or (iv) any judgment, decree,
order or award of any court or Governmental Authority applicable to the Seller
or its properties or assets, or to Newco or its properties or assets.
3.4. GOVERNMENTAL AND THIRD PARTY CONSENTS. Except as set
forth on Schedule 3.4, no consent, approval, exemption or authorization is
required to be obtained from, no notice is required to be given to and no filing
is required to be obtained from any Third Party by the Seller by virtue of the
execution of this Agreement.
3.5. CONTRACTS, ASSETS AND LIABILITIES. Except as set
forth on Schedule 3.5 and the agreements or other arrangements described in
Section 5.15 and, as of the Closing, cash in the amount of SEK 125,000. Newco
does not have (a) any contracts, agreements, commitments, obligations or other
similar understandings, whether oral or written, (b) any liabilities or
obligations of any nature whatsoever or (c) any assets, including but not
limited to, real property, intellectual property or personal property.
3.6. LITIGATION. Except as set forth on Schedule 3.6, as
of the date of this Agreement, (i) there are no Actions pending or, to the
Seller's knowledge, threatened, which could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the prospects or
condition (financial or otherwise) of Newco, the Trademarks or the Regulatory
Approvals for the Licensed Products in the Territory and (ii) no circumstances
exist
11
which, to the knowledge of the Seller, are reasonably likely to result in any
Action of the kind described in clause (i) above.
3.7. BROKERS. Except for Credit Suisse First Boston
(Europe) Limited, the fees and expenses of which will be paid by the Seller,
there are no claims for brokerage commissions, finders fees or similar
compensation in connection with the transactions contemplated by the Transaction
Agreements based upon any arrangement, actions or agreement by or on behalf of
the Seller or its Affiliates.
3.8. TAXES. Newco has timely filed all Tax Returns that it
was required to file under applicable Law with the applicable Taxing Authorities
(or to the extent there is any delay in filing, such delay has been cured). All
such Tax Returns were correct and complete in all material respects. All Taxes
due and owed by Newco have been duly and timely paid, or withheld or remitted to
the appropriate Taxing Authority (or to the extent there is a delay in payment,
such delay has been cured). There are no Liens for Taxes on any of the assets of
Newco. No amount of the type described in clause (ii) or (iii) of the definition
of Tax is currently payable by Newco, regardless of whether such Tax is imposed
on Newco. None of the Seller, Newco or Q-Med, has entered into any agreement or
arrangement with any Taxing Authority with regard to the Tax liability of Newco
affecting any Tax period for which the applicable statute of limitations, after
giving effect to extensions and waivers, has not yet expired. No election has
been made under United States Treasury Regulation Section 301.7701-3 or any
similar provision of Tax Law to treat Newco as an association, corporation,
partnership or disregarded entity, other than an election required to be made by
Newco at the Purchaser's request. Newco is not a party to any Tax allocation or
sharing agreement.
3.9. EMPLOYEE BENEFITS. Except as set forth on Schedule
3.9(a), Newco has no employees in the Territory and only one employee outside
the Territory. Except as set forth on Schedule 3.9(b), Newco has never
maintained any employee benefit plans subject to the Internal Revenue Code of
1986, as amended (the "CODE"), any similar Canadian Law or the Laws of any other
jurisdiction, except as required by Law (such required plans, including any
benefits listed on Schedule 3.9(b) the "EMPLOYEE BENEFIT PLANS").
3.10. TRADEMARKS. Newco is the sole owner of the Trademarks
and the goodwill represented by them.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as
follows:
4.1. CORPORATE ORGANIZATION AND AUTHORITY. The Purchaser
is a company duly organized, validly existing and in good standing under the
laws of the Kingdom of Sweden and has all requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by the Purchaser of this Agreement, the performance by
the Purchaser of its obligations hereunder, and the consummation by the
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Purchaser of the transactions contemplated hereby have been duly authorized by
all requisite corporate action. This Agreement has been duly executed and
delivered by the Purchaser and, assuming the due authorization, execution and
delivery hereof by the Seller, constitutes a legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium, or other Laws of general
application relating to or affecting enforcement of creditors' rights and Laws
concerning equitable remedies.
4.2. NO CONFLICT. The execution, delivery and performance
by the Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby do not and will not, with or without the giving
of notice or the passage of time or both, violate, conflict with or cause a
breach or termination of or constitute a default under (i) the provisions of any
Law applicable to the Purchaser or its properties or assets; (ii) the provisions
of the constituent organizational documents or other governing instruments of
the Purchaser; (iii) any note, bond, mortgage, indenture, license, agreement, or
other instrument or obligation to which the Purchaser is a party or by which it
is bound or subject; or (iv) any judgment, decree, order or award of any court
or Governmental Authority applicable to the Purchaser or its properties or
assets.
4.3. GOVERNMENTAL AND THIRD PARTY CONSENTS. Except as set
forth on Schedule 4.3, no consent, approval, exemption or authorization is
required to be obtained from, no notice is required to be given to and no filing
is required to be obtained from any Third Party by the Purchaser by virtue of
the execution and delivery of this Agreement.
4.4. BROKERS AND FINDERS. There are no claims for
brokerage commissions, finders fees or similar compensation in connection with
the transactions contemplated by this Agreement based upon any arrangement,
actions or agreement by or on behalf of the Purchaser.
4.5. FINANCING. The Purchaser has, and on the Closing Date
will have, sufficient funds to purchase the Shares in accordance with the terms
and conditions hereof, pay all of its related fees and expenses and affect all
other transactions contemplated hereby.
4.6. INVESTMENT. This Agreement is made with the Purchaser
in reliance upon its representation to the Seller, which by the Purchaser's
execution of this Agreement the Purchaser hereby confirms, that the Shares to be
received by the Purchaser will be acquired for investment purposes only for the
Purchaser's own account, not as a nominee or agent, and not with a view to the
sale or distribution of any part thereof, and that the Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
any of the Shares. By executing this Agreement, the Purchaser further represents
that it has no current contract, undertaking, agreement, or arrangement with any
Person to sell, transfer, or grant participation to such Person or to any Third
Party, with respect to any of the Shares. Notwithstanding the foregoing, nothing
contained herein shall prohibit or otherwise prevent the Purchaser from
transferring, selling or otherwise disposing of the Shares in the future in
compliance with applicable Laws and Sections 5.7, 5.8, 5.9 and 11.1 hereof.
4.7. INVESTIGATION. The Purchaser has been afforded full
and adequate access to the business, operations, books, records, facilities and
personnel of the Seller and its Affiliates
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for purposes of conducting a due diligence investigation of the Licensed
Products, the Licensed Rights and the Trademarks. The Purchaser acknowledges
that it has conducted a full due diligence investigation of the Seller and its
Affiliates, the Licensed Products, the Licensed Rights and the Trademarks. In
entering into this Agreement, the Purchaser acknowledges that it has relied
solely upon the aforementioned investigation, review and analysis and not on any
factual representations of the Seller or the Seller's representatives (except
the specific representations and warranties of the Seller set forth in this
Agreement and the specific representations and warranties of the Seller's
Affiliates set forth in the other Transaction Agreements), and the Purchaser:
(a) has no knowledge that any of the representations and
warranties of the Seller set forth in Article III of this Agreement is not true
or correct in all material respects; and
(b) agrees that none of the Seller's or its Affiliate's
or any of their respective directors, officers, employees, shareholders,
Affiliates, controlling persons, agents, advisors or representatives, shall have
any liability or responsibility whatsoever to the Purchaser or its directors,
officers, employees, Affiliates, controlling persons, agents or representatives
on any basis (including in contract or tort, under Law or otherwise) based upon
any information provided or made available, or statements made or not made
(including in materials furnished in the data room, in presentations by the
Seller's or its Affiliate's management or otherwise), to the Purchaser or its
directors, officers, employees, Affiliates, controlling persons, advisors,
agents or representatives (or any omissions therefrom), other than as expressly
set forth in the specific representations and warranties of the Seller set forth
in this Agreement, as limited by and subject to Article IX hereof, and the
specific representations and warranties of the Seller's Affiliates set forth in
the other Transaction Agreements; provided, however, that the consequence of any
breach of a representation or warranty in any other Transaction Agreement shall
be governed solely by the terms and conditions of the Transaction Agreement in
which such representation or warranty was made.
ARTICLE V
COVENANTS AND AGREEMENTS
5.1. CONDUCT OF BUSINESS PRIOR TO THE CLOSING. Except as
set forth on Schedule 5.1, without the prior written approval of the Purchaser,
from and after the date of this Agreement and until the Closing, the Seller
shall cause Newco to not do any of the following:
(a) purchase or sell any of its capital stock or other
equity interests or grant or make any option, subscription, warrant, call,
commitment or agreement of any character in respect of its capital stock or
other equity interests;
(b) amend any of the Newco Organizational Documents;
(c) merge or consolidate with any Person;
(d) enter into any partnership, limited liability company
or joint venture agreement;
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(e) amend or terminate any contract, agreement or license
to which it is a party or by which it is bound;
(f) incur, assume or guarantee any indebtedness or other
liability;
(g) enter into any transaction with any officer, director
or shareholder of Newco or its Affiliates;
(h) waive any right or release any debt or claim by
Newco;
(i) purchase or lease any assets;
(j) sell, lease, or otherwise dispose of any asset of
Newco;
(k) destroy, damage or incur any loss to any asset of
Newco;
(l) incur or suffer to exist any lien on any of the
assets of Newco; or
(m) agree or commit to do any of the foregoing.
5.2. SUPPLY AGREEMENT. The Purchaser shall cause Medicis
to, and the Seller shall cause Q-Med to, enter into the Supply Agreement in the
form attached hereto as Exhibit D as of the Closing Date.
5.3. AMENDED AND RESTATED LICENSE AGREEMENT. The Seller
shall cause Q-Med and Newco to enter into the Amended and Restated License
Agreement prior to the Closing.
5.4. ESCROW AGREEMENT. The Purchaser, the Seller and the
Escrow Agent shall enter into the Escrow Agreement as of the Closing Date.
5.5. NEWCO ORGANIZATIONAL DOCUMENTS. On the Closing Date,
the Seller shall deliver to the Purchaser true, correct and complete copies of
the Newco Organizational Documents and any and all amendments, modifications or
supplements thereto and the corporate books and records of Newco as the same
shall exist on the Closing Date.
5.6. ACCESS TO BOOKS AND RECORDS; COOPERATION;
CONFIDENTIALITY. (a) During the period commencing on the date hereof and ending
on the Closing, the Seller will, and will cause Newco to, afford the Purchaser
and its counsel, accountants and other authorized representatives, and the
Purchaser will afford the Seller and its counsel, accountants and other
authorized representatives, reasonable access, during normal business hours and
upon reasonable advance notice to the officers, directors, employees,
accountants and other advisors and agents, premises, properties, books, records,
data and contracts of the Seller and Newco, on the one hand, or the Purchaser,
on the other hand; provided that such access does not interfere with normal
business operations. All communications and requests made pursuant to this
Section 5.6(a) shall be made (1) by **** on the part of the Purchaser and shall
be directed to **** on behalf of the Seller and (2) by **** at Q-Med on the part
of the Seller and shall be directed to Xxxxxxx Xxxxxxxx on behalf of the
Purchaser.
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(b) The Purchaser agrees that all information received or
obtained by the Purchaser or any of its Affiliates, counsel, accountants and
other authorized representatives from the Seller or its Affiliates or their
respective representatives during the period from the date hereof through the
Closing shall be considered Evaluation Materials as defined under the
Confidentiality Agreement unless the Purchaser can demonstrate that such
information is available to it from sources other than the Seller or its
Affiliates or their respective representatives that are not under a duty of
confidentiality with respect thereto. The Purchaser shall use such information
only in connection with and for the purpose reflected in this Agreement and the
other Transaction Agreements and for no other purpose. The Purchaser will hold,
and will cause its respective directors, officers, employees, accountants,
counsel, financial advisors and other representatives and Affiliates to hold any
such information in confidence in accordance with the provisions of the
Confidentiality Agreement.
(c) The Seller agrees that all information received or
obtained by the Seller or any of its Affiliates, counsel, accountants and other
authorized representatives from the Purchaser or its Affiliates or their
respective representatives during the period from the date hereof through the
Closing shall be considered to be the confidential information of the Purchaser
and shall be protected as confidential information pursuant to the Mutual
Disclosure and Confidentiality Agreement, dated September 15, 1999, between
Medicis Pharmaceutical Corporation and Q-MED AB (the "PRIOR CONFIDENTIALITY
AGREEMENT") unless the Seller can demonstrate that such information is available
to it from sources other than the Purchaser or its Affiliates or their
respective representatives that are not under a duty of confidentiality with
respect thereto. The Seller shall use such information only in connection with
and for the purpose reflected in this Agreement and the other Transaction
Agreements and for no other purpose.
5.7. TRANSFERS IN ACCORDANCE WITH THIS AGREEMENT. The
Purchaser shall not, directly or indirectly, Transfer, sell, pledge,
hypothecate, encumber, or otherwise dispose of the Shares or any economic
interest therein (including without limitation by means of any participation or
swap transaction) to any Person, except in compliance with applicable Laws and
Sections 5.7, 5.8, 5.9 and 11.1 of this Agreement. Except for the escrow of the
Shares as contemplated by this Agreement, any attempt to transfer or otherwise
dispose of the Shares in violation of the terms of this Agreement shall be null
and void from inception and of no further force and effect.
5.8. SHARES TRANSFERS ONLY IN CONJUNCTION WITH TRANSFER OF
THE AGREEMENT. No Transfer or other disposition of Shares shall be effective
unless the Transferee, if not already a Party hereto, shall have executed and
delivered to each other Party hereto, as a condition precedent to such Transfer
or other disposition, an instrument or instruments reasonably satisfactory to
such Parties confirming that the Transferee agrees to be bound by the terms of
this Agreement with respect to the Shares so Transferred or disposed to the same
extent applicable to the transferor thereof as if such party was originally a
party hereto. The Purchaser shall not, directly or indirectly, Transfer this
Agreement or its rights or obligations hereunder other than in connection with a
Transfer or other disposition of the Shares in accordance with the terms and
conditions of this Agreement.
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5.9. SHARE CERTIFICATE LEGEND. A copy of this Agreement
shall be kept with the records of Newco, and the share certificates of Newco
shall, so long as it is true, contain a notation, with respect to all Shares
subject to this Agreement reading substantially as follows:
THE SHARES OF HA NORTH AMERICAN SALES AB HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED,
OR ANY OTHER SIMILAR LAW AND MAY BE OFFERED AND SOLD ONLY IF
SO REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THESE SHARES ALSO ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE SHARE PURCHASE AGREEMENT, DATED
AS OF FEBRUARY 10, 2003, COPIES OF WHICH MAY BE OBTAINED FROM
HA NORTH AMERICAN SALES AB.
5.10. TERMINATION OF AGREEMENTS. The Purchaser hereby
agrees that the breach by the Purchaser of its obligations to make the Milestone
Payments when due pursuant to Section 2.2 herein shall constitute a breach
hereof and in the event of such a breach, (i) each of the Transaction Agreements
(other than the Confidentiality Agreement and the Prior Confidentiality
Agreement) shall automatically terminate and be of no further force and effect
and (ii) the Purchaser shall, and shall cause its Affiliates to, assign any
rights it or its Affiliates may have pursuant to the Trademarks to the Seller or
such of the Seller's Affiliates as the Seller may designate, such assignment to
be in the form attached hereto as Exhibit A. The Parties agree that the
foregoing remedy pursuant to this Section 5.10 shall be the exclusive remedy for
any breach of the Purchaser's obligation to make the Milestone Payments when due
pursuant to Section 2.2; provided, that if such breach occurs after any
Milestone Payment is due, the Seller shall be entitled to such Milestone
Payment.
5.11. FILINGS AND CONSENTS. Each of the Seller and the
Purchaser shall use its reasonable best efforts to take, or cause to be taken,
all actions to obtain and to cooperate in obtaining any consent, approval,
authorization or order of, and in making any registration or filing with, any
Governmental Authority or other Person required in connection with the
execution, delivery or performance of this Agreement, except that other than
with respect to filing fees payable to any Governmental Authority, the Purchaser
shall not be required to make any payments to any Third Party. The Parties shall
within three (3) Business Days following the date of this Agreement each make
all appropriate filings under the HSR Act and thereafter shall diligently pursue
termination of the waiting period under the HSR Act. The Parties further agree
to respond promptly to any request from a Governmental Authorities for
additional information or documentary material made pursuant to the HSR Act.
Each Party agrees to furnish the other Party with copies of all non-confidential
documents and correspondence (A) prepared by or on behalf of such Party for
submission to any Governmental Authority and (B) received by or on behalf of
such Party from any Governmental Authority, in each case in connection with the
transactions contemplated hereby. Each Party agrees to use its reasonable best
efforts to consult with and keep the other Party informed as to the status of
such matters. The Purchaser shall pay
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all filing fees required to be paid in connection with the respective filings to
be made under the HSR Act and each such foreign Law.
5.12. BOARD MEMBERS. (a) The Seller shall cause Newco to
maintain a Board of Directors in accordance with the requirements of the Laws of
the Kingdom of Sweden from the date hereof until the Closing. On the Closing
Date, the Seller shall cause to be delivered to the Purchaser duly signed
resignations, effective immediately after the Closing, of all board members,
officers and other Persons having authority to sign on behalf of or otherwise
bind Newco whose occupation is to perform services for the Seller or an
Affiliate and shall take such other reasonable action as is necessary to
accomplish the foregoing.
(b) On the Closing Date, the Purchaser shall cause a
shareholders meeting of Newco to be duly held in accordance with Law (the
"SHAREHOLDERS MEETING") at which meeting new board members of Newco shall be
duly appointed in accordance with Law. The Purchaser shall cause such newly
appointed board members to be registered at the Swedish Patent and Registration
Office promptly after the Closing.
(c) At each annual shareholder's meeting for the 2003 and
2004 calendar years, the Purchaser shall cause the board members who have
resigned on or before the Closing Date pursuant to clause (a) above to be
discharged from all liability for their service on the board prior to and until
the Closing Date (or the earlier date of their resignation); provided that the
independent auditors of Newco at the time of the applicable shareholders meeting
do not recommend against such discharge in such auditor's reports for the
relevant period.
5.13. TAX MATTERS. (a) The Seller covenants that Newco will
be a private aktiebolag as of the Closing Date.
(b) The Purchaser shall be permitted, at its option, to
make an election under Section 338(g) of the Code.
(c) The Purchaser shall be permitted, at its election, to
make an election under United States Treasury Regulation 301.7701-3 to treat
Newco as a disregarded entity or partnership for United States Federal income
tax purposes.
(d) The Purchaser will pay any Taxes or other expenses
attributable to the making of any such election described in paragraph (b) or
(c) above.
(e) All transfer, documentary, sales, use, stamp,
registration, value added and other such Taxes and fees (including any penalties
and interest) attributable solely to the purchase of the Shares by the Purchaser
or to the making of any election described in paragraph (b) or (c) above shall
be paid by the Purchaser when due, and the Purchaser will, at its own expense,
file all necessary tax returns and other documentation with respect to all such
taxes and fees, and, if required under applicable Law, the Purchaser will cause
its Affiliates to, join in the execution of any such tax returns and other
documentation.
5.14. ACTIONS WITH RESPECT TO NEWCO. The Purchaser hereby
agrees that it shall not cause the liquidation of, or take any actions with
respect to the liquidation of, Newco (other
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than a deemed liquidation arising solely for U.S. federal income tax purposes)
prior to the date that is three (3) months following the Closing Date.
5.15. EMPLOYEES; CONSULTING AGREEMENT. On the Closing Date
and for a period of at least three (3) months thereafter, the Purchaser shall
cause Newco to (a) employ the Person set forth on Schedule 5.15 (the "NEWCO
EMPLOYEE") in the same position and on the same terms and conditions as Newco
employed such Newco Employee immediately prior to the Closing Date, and (b)
honor the existing terms and conditions of the Consulting Agreement, dated
December 10, 2002, by and between Q-Med AB and Q-Med, Inc. (the "CONSULTING
AGREEMENT").
5.16. CERTAIN CONTACTS. The Seller hereby acknowledges and
agrees on behalf of itself and its Affiliates that the Purchaser may, after the
Closing Date, contact the employee identified on Schedule 5.16 hereto and the
Purchaser or any of its Affiliates may enter into a consulting and/or employment
arrangement with such employee.
ARTICLE VI
CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of the Purchaser under this Agreement are
subject to the fulfillment at or before the Closing of each of the following
conditions, any of which may be waived in writing by the Purchaser:
6.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Seller contained herein shall be true and correct in all
respects (and in all material respects, in the case of those representations and
warranties which are not by their express terms qualified by reference to
materiality) on and as of the Closing Date with the same effect as if made on
and as of the Closing Date, except that those representations and warranties
which are made as of a specific date shall be true and correct only as of such
date.
6.2. PERFORMANCE. The Seller shall have performed or
fulfilled in all material respects all agreements, obligations, covenants and
conditions contained herein required to be performed or fulfilled by the Seller
before the Closing.
6.3. HSR ACT. All applicable waiting periods under the HSR
Act with respect to the transactions contemplated hereby shall have expired or
been terminated.
6.4. PROCEEDINGS SATISFACTORY; COMPLIANCE CERTIFICATE. All
corporate and legal proceedings taken by the Seller in connection with the
transactions contemplated by this Agreement and all documents and papers
relating to such transactions shall be satisfactory in all material respects to
the Purchaser, in the reasonable exercise of its judgment. The Seller shall have
delivered to the Purchaser a certificate dated as of the Closing, signed by the
Seller certifying that the conditions set forth in Sections 6.1 and 6.2 have
been satisfied.
6.5. SUPPLY AGREEMENT. Q-Med shall have entered into the
Supply Agreement in the form attached hereto as Exhibit D.
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6.6. AMENDED AND RESTATED LICENSE AGREEMENT. Q-Med and
Newco shall have entered into the Amended and Restated License Agreement prior
to Closing, in a form satisfactory to the Purchaser, and the Amended and
Restated License Agreement shall not have been further amended, modified or
supplemented subsequent thereto and shall be in full force and effect as of the
Closing.
6.7. ESCROW AGREEMENT. The Purchaser, the Seller and the
Escrow Agent shall have entered into the Escrow Agreement.
6.8. INJUNCTIONS. At the Closing there shall not be in
effect any Law or any order, writ, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority
("GOVERNMENTAL ORDER") directing that the transactions provided for herein not
be consummated as provided herein or which has the effect of rendering it
impossible to consummate such transactions.
6.9. CERTIFICATE. The Seller shall deliver to the
Purchaser a certificate of an authorized board member of the Seller certifying
and attaching: (a) the Seller's organizational documents as in effect as of the
date hereof, (b) the board resolutions of the Seller authorizing the
transactions contemplated by this Agreement and (c) the incumbency of the
Seller's officers signing this Agreement and any other documents, instruments or
certificates executed and delivered by the Seller at Closing.
6.10. SHARE CERTIFICATES. The Share certificates to be
deposited pursuant to the Escrow Agreement shall be duly endorsed to the
Purchaser and Newco's securities ledger shall have been updated to reflect the
change in ownership of the Shares from the Seller to the Purchaser.
6.11. NEWCO. As of the Closing there shall have been no
assignment by Newco for the benefit of its creditors, commencement by or against
Newco of a voluntary or involuntary proceeding under any bankruptcy, insolvency,
liquidation or similar Law, appointment with respect to Newco of a successor,
trustee, custodian, sequestratror or similar official, and Newco shall not have
been dissolved.
6.12. OPINIONS. The Purchaser shall have received opinions
from Advokatfirman Xxxxx KB and Xxxxxxx Xxxxxxx & Xxxxxxxx, each in a form
reasonably acceptable to the Purchaser.
6.13. NEWCO BALANCE SHEET. The Purchaser shall have
received a balance sheet of Newco setting forth the capitalization, fixed assets
and cash of Newco as of the Closing Date.
ARTICLE VII
CONDITIONS OF THE SELLER'S OBLIGATIONS AT CLOSING
The obligations of the Seller under this Agreement are subject
to the fulfillment at or before the Closing of each of the following conditions,
any of which may be waived in writing by the Seller:
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7.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Purchaser contained herein shall be true and correct in
all respects (and in all material respects, in the case of those representations
and warranties which are not by their express terms qualified by relevance to
materiality) on and as of the Closing Date with the same effect as if made on
and as of the Closing Date, except that those representations and warranties
which are made as of a specific date shall be true and correct only as of such
date.
7.2. PERFORMANCE. The Purchaser shall have performed or
fulfilled in all material respects all agreements, obligations, covenants and
conditions contained herein required to be performed or fulfilled by the
Purchaser before the Closing.
7.3. HSR ACT. All applicable waiting periods under the HSR
Act with respect to the transactions contemplated hereby shall have expired or
been terminated.
7.4. PROCEEDINGS SATISFACTORY; COMPLIANCE CERTIFICATE. All
corporate and legal proceedings taken by the Purchaser in connection with the
transactions contemplated by this Agreement and all documents and papers
relating to such transactions shall be satisfactory in all material respects to
the Seller, in the reasonable exercise of its judgment. The Purchaser shall have
delivered to the Seller a certificate dated as of the Closing, signed by the
Purchaser, certifying that the conditions set forth in Sections 7.1 and 7.2 have
been satisfied.
7.5. SUPPLY AGREEMENT. Medicis shall have entered into the
Supply Agreement in the form attached hereto as Exhibit D.
7.6. ESCROW AGREEMENT. The Purchaser, the Seller and the
Escrow Agent shall have entered into the Escrow Agreement.
7.7. INJUNCTIONS. At the Closing there shall not be in
effect any Law or any Governmental Order directing that the transactions
provided for herein not be consummated as provided herein or which has the
effect of rendering it impossible to consummate such transactions.
7.8. CERTIFICATE. The Purchaser shall deliver to the
Seller a certificate of an authorized board member of the Purchaser certifying
and attaching: (a) the Purchaser's organizational documents as in effect as of
the date hereof, (b) the board resolutions of the Purchaser authorizing the
transactions contemplated by this Agreement and (c) the incumbency of the
Purchaser's officers signing this Agreement and any other documents, instruments
or certificate executed and delivered by the Purchaser at Closing.
7.9. OPINIONS. The Seller shall have received opinions
from Xxxxxxxxxx Swartling Advokatbyra AB and Akin Gump Xxxxxxx Xxxxx & Xxxx LLP,
each in a form reasonably acceptable to the Seller.
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ARTICLE VIII
TERMINATION
8.1. TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) by the mutual written consent of the Seller and the
Purchaser;
(b) by the Seller if the Closing has not occurred on or
before the date that is forty-five (45) days after the date of this Agreement,
unless the failure of such consummation shall be due to the failure of the
Seller to comply in all material respects with the agreements and covenants
contained herein; or
(c) by the Seller or the Purchaser if any of the
conditions to such Party's obligations to perform set forth in Article VI or
Article VII, as applicable, becomes incapable of fulfillment; provided, however,
that a Party may not seek termination pursuant to this Section 8.1(c) if such
condition is incapable of fulfillment due to the failure of such Party to
perform the agreements contained herein required to be performed by such Party
at or before the Closing.
8.2. PROCEDURE AND EFFECT OF TERMINATION. In the event of
the termination of this Agreement and the abandonment of the transactions
contemplated hereby pursuant to Section 8.1 or a termination of this Agreement
pursuant to Section 8.4, written notice thereof shall forthwith be given to all
other Parties and:
(a) Each of the Purchaser and the Seller will immediately
at its expense return to the other Party all documents, work papers and other
material of the other Party and its Affiliates relating to the transactions
contemplated hereby obtained from that other Party or its Affiliates, whether so
obtained before or after the execution hereof, and all copies, extracts or other
reproductions, in whole or in part thereof which may have been by or on behalf
of the Purchaser or the Seller or their respective representatives, as the case
may be, and shall deliver to the other Party or destroy all notes or memorandum
or other stored information of any kind containing, reflecting or derived from
such documents, work papers and other material, except that one archival copy
may be retained by each Party's outside counsel or in-house counsel. The return
or destruction, as applicable, of such documents, work papers and other material
(and all copies, extracts or other reproductions in whole or in part thereof)
pursuant to this Section 8.2(a) shall be certified in writing by an authorized
officer supervising the same. Notwithstanding such return or destruction, each
of the Purchaser and the Seller shall not use or disclose to any Person any
confidential information derived from the documents, work papers and other
material of the other Party and shall be responsible for preventing the
disclosure of any such information as provided in Section 5.6(b) and (c);
(b) All obligations of the Parties hereunder shall
terminate, except for the confidentiality obligations under the Confidentiality
Agreement and the Prior Confidentiality Agreement, Article X [Dispute
Resolution] and Sections 5.6(b) and (c) [Confidentiality], 8.2 [Procedure and
Effect of Termination], 11.8 [Expenses] and 11.16 [Publicity]; provided,
22
however, that termination pursuant to such Section 8.1 and 8.4 will not relieve
a defaulting or breaching Party from any liability to the other Party hereto,
unless expressly otherwise provided herein;
(c) The Purchaser or its Permitted Transferees or Third
Party transferees shall, and shall cause their Affiliates to, assign any rights
it or its Affiliates may have pursuant to the Trademarks to the Seller or such
of the Seller's Affiliates as the Seller may designate; and
(d) Other than as set forth in this Article VIII, neither
Party hereto shall have any further obligation pursuant to this Agreement.
8.3. NON-COMPETE. If this Agreement terminates pursuant to
Section 8.1(b) due to the failure of the condition set forth in Section 7.3 to
have been met prior to the date set forth in Section 8.1(b), then the Purchaser
shall not, and shall cause its Affiliates not to, for the period from the date
of such termination to the six (6) month anniversary of such termination, engage
in a business involving the marketing, use, import, offer for sale, sale,
license, development, manufacturing or having manufactured any product that is
in direct competition with the Licensed Products.
8.4. TRANSFER IN VIOLATION OF SECTION 11.1. If at any time
there shall have been a Transfer by either Party pursuant to a Change in Control
(other than a Volitional Change in Control) in violation of Section 11.1, the
non-transferring Party shall have the right, in its sole discretion, to
terminate this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE SELLER. Subject to the limits
set forth in this Article IX and except as is otherwise provided in Section 9.8
hereof which shall govern the Parties' respective indemnification obligations
with respect to Tax matters, from and after the Closing, the Seller shall
indemnify, defend and hold the Purchaser and its Affiliates (including, after
the Closing, Newco) and their respective officers, directors, stockholders,
employees, agents and representatives (the "PURCHASER INDEMNIFIED PERSONS")
harmless from and in respect of any and all Losses that they may incur as a
result of, arising out of or due to (i) any breach of any representation or
warranty, covenant or other agreement of the Seller contained in this Agreement
(provided, that for purposes of this Section 9.1(a)(i), Section 3.6(ii) shall be
read without regard to qualification with respect to knowledge), (ii) other than
as a result of, arising out of or due to any improper action or improper
omission of the Purchaser and its Affiliates, any Action attributable to the
three month period following the Closing Date (the "THREE MONTH PERIOD") which
relates to (x) the employment of the Newco Employee, (y) the Consulting
Agreement or (z) the Employee Benefit Plans, to the extent such Losses are in
excess of the funds held by Newco on the Closing Date with respect to such
matters or (iii) other than as a result of, arising out of or due to any
improper action or improper omission of the Purchaser and its Affiliates, any
Action related to a termination of the employment of the Newco Employee or the
termination of the Consulting Agreement that occurs no later than thirty (30)
days following the Three Month Period (including any Losses attributable to
Benefit Plans in connection with a
23
termination of the employment of the Newco Employee during such period, whether
or not such Losses arise during such period), but only to the extent such Losses
exceed the funds held by Newco on the Closing Date with respect to such matters.
(b) The Seller shall not have any liability under Section
9.1(a) unless the aggregate of all Losses relating thereto for which the Seller
would, but for this Section 9.1(b), be liable exceeds on a cumulative basis an
amount equal to $159,000, and then only to the extent of any such excess, after
which the entire amount of such Losses which is payable pursuant to the
provisions of Section 9.1 shall be paid by the Seller subject to the Cap (as
such term is defined below); provided, that the Seller shall not have any
liability under Section 9.1(a) for any individual item where the Loss relating
to such item is less than $10,000; provided, further, however, that the Seller's
aggregate liability under Section 9.1(a) shall in no event exceed the aggregate
of the amounts paid to and received by the Seller pursuant to Section 2.2 (the
"CAP"). All amounts paid to Purchaser Indemnified Persons pursuant to Section
9.1 of this Agreement and all amounts paid to Licensee Indemnified Persons (as
such term is defined in the Amended and Restated License Agreement) pursuant to
Section 10.1 of the Amended and Restated License Agreement shall be aggregated
for purposes of determining the satisfaction of the Cap. The limitations of this
Section 9.1(b) shall not apply to any claim for indemnification made under
Section 9.1(a)(ii). The Seller shall have no liability under Section 9.1(a) to
the extent a Purchaser Indemnified Person has been paid pursuant to the Supply
Agreement or the Amended and Restated License Agreement for an indemnification
claim involving the identical substantive issue.
9.2. INDEMNIFICATION BY THE PURCHASER. (a) Subject to the
limits set forth in this Article IX and except as otherwise provided in Section
9.8 hereof which shall govern the Parties' respective indemnification
obligations with respect to Tax matters, from and after the Closing, the
Purchaser shall indemnify, defend and hold the Seller and its Affiliates and its
officers, directors, stockholders, employees, agents and representatives (the
"SELLER INDEMNIFIED PERSONS") harmless from and in respect of any and all Losses
that they may incur as a result of, arising out of or due to any breach of any
representation or warranty, covenant or other agreement of the Purchaser or its
Affiliates (including, after Closing, Newco) contained in this Agreement.
(b) The Purchaser shall not have any liability under
Section 9.2(a) unless the aggregate of all Losses relating thereto for which the
Purchaser would, but for this Section 9.2(b), be liable exceeds on a cumulative
basis an amount equal to $159,000, and then only to the extent of any such
excess; provided, that the Purchaser shall not have any liability under Section
9.2(a) for any individual item where the Loss relating to such item is less than
$10,000; provided, further, however that the Purchaser's aggregate liability
under Section 9.2(a) shall in no event exceed the Cap. All amounts paid to
Seller Indemnified Person pursuant to this Section 9.2 and all amounts paid to
Licensor Indemnified Persons (as such term is defined in the Amended and
Restated License Agreement) pursuant to Section 10.2 of the Amended and Restated
License Agreement shall be aggregated for purposes of determining the
satisfaction of the Cap. The Purchaser shall have no liability under Section
9.2(a) to the extent a Seller Indemnified Person has been paid pursuant to the
Supply Agreement or the Amended and Restated License Agreement for an
indemnification claim involving the identical substantive issue.
24
9.3. NOTICE OF CLAIMS. If there occurs an event which any
of the Persons to be indemnified under this Article IX asserts is indemnifiable
pursuant to Section 9.1 or 9.2 (the "INDEMNIFIED PARTY"), the Party or Parties
seeking indemnification shall so notify the Party from whom indemnification is
sought (the "INDEMNIFYING PARTY") promptly in writing describing such Loss, the
amount or estimated amount thereof, if known or reasonably capable of
estimation, and the method of computation of such Loss, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such Loss shall have occurred. If any Action at law or in
equity is instituted by or against a Third Party with respect to which the
Indemnified Party intends to claim any liability as a Loss under this Section
9.3, the Indemnified Party shall promptly notify the Indemnifying Party of such
Action and tender to the Indemnifying Party the defense of such Action. A
failure by the Indemnified Party to give notice and to tender the defense of the
Action in a timely manner pursuant to this Section 9.3 shall not limit the
obligation of the Indemnifying Party under this Article IX, except to the extent
such Indemnifying Party is materially prejudiced thereby.
9.4. CONTROL OF CLAIMS. The Indemnifying Party under this
Article IX shall have the right, but not the obligation, to conduct and control,
through counsel of its choosing, any Action for which indemnification is sought
pursuant to this Article IX ("INDEMNIFIABLE CLAIM"), and if the Indemnifying
Party elects to assume the defense thereof, the Indemnifying Party shall not be
liable to the Party or Parties seeking indemnification hereunder for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Party or Parties in connection with the defense thereof; provided that if the
Indemnified Party has been advised in writing by outside counsel that there is a
potential conflict between the interests of the Indemnifying Party and the
Indemnified Party, the reasonable out-of-pocket fees and expenses of one
separate counsel for the Indemnified Party shall be paid by the Indemnifying
Party and such separate counsel shall be selected by the Indemnified Party in
its sole discretion. Notwithstanding the foregoing, the reasonable legal fees
and expenses of counsel selected by the Indemnified Party in its sole discretion
in connection with an Indemnifiable Claim as to which the Indemnifying Party
does not assume the defense or is not entitled to assume the defense shall be
considered Losses for purposes of this Article IX. The Indemnifying Party may
compromise or settle such Action, provided that the Indemnifying Party shall
give the Indemnified Party advance notice of any proposed compromise or
settlement, provided, further that the Indemnifying Party shall not compromise
or settle any Indemnifiable Claim without the prior written approval of the
Indemnified Party, such approval not to be unreasonably withheld or delayed,
unless all relief provided is paid or satisfied in full by the Indemnifying
Party. No Indemnified Party may compromise or settle any Indemnifiable Claim
without the prior written approval of the Indemnifying Party. If the
Indemnifying Party elects not to control or conduct the defense or prosecution
of an Indemnifiable Claim, the Indemnifying Party nevertheless shall have the
right to participate in the defense or prosecution of any Indemnifiable Claim
and, at its own expense, to employ counsel of its own choosing for such purpose.
The Parties hereto shall cooperate with each other and their respective counsel
in the defense, negotiation or settlement of any Indemnifiable Claim.
9.5. SURVIVAL. The representations and warranties of the
Parties contained in this Agreement shall survive until the eighteen (18) month
anniversary of the Closing Date and the covenants to be performed following the
Closing Date shall survive until the date that is six (6) months after the end
of the applicable period for performance thereof.
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9.6. INDEMNIFICATION CALCULATIONS. The amount of any
Losses for which indemnification is provided under this Article IX shall be
computed net of any insurance proceeds received by the Indemnified Party in
connection with such Losses. If an Indemnified Party receives insurance proceeds
in connection with Losses for which it has received indemnification, such Party
shall refund to the Indemnifying Party the amount of such insurance proceeds
when received, up to the amount of indemnification received. An Indemnified
Party shall use its commercially reasonable efforts to pursue insurance claims
with respect to any Losses. The Parties agree that any indemnification payments
made pursuant to this Agreement shall be treated for tax purposes as an
adjustment to the Purchase Price, unless otherwise required by applicable Law.
9.7. LEGISLATION ETC. The Seller shall not have any
liability under Section 9.8 to the extent that any Losses relating thereto for
which the Seller would, but for this Section 9.7, be liable (i) occur as a
result of the passing of any legislation not in force at the date hereof or
which has retroactive effect or (ii) are recoverable under an insurance policy
or would have been recoverable had the insurance protection level which existed
as of the Closing Date been continued and would not have arisen but for an act,
omission or transaction carried out by the Purchaser or persons deriving title
for the Purchaser or Newco after the Closing Date.
9.8. TAX INDEMNIFICATION. (a) The Seller shall indemnify,
defend and hold harmless (on an after tax basis and net of any directly related
tax credit or deduction that the Purchaser Indemnified Persons actually obtain)
the Purchaser Indemnified Persons from, and without any duplication, any (1) Tax
of Newco described in clause (i) of the definition of Taxes related to the
Pre-Closing Tax Period, (2) Tax described in clause (ii) and (iii) of the
definition of Tax, provided, that notwithstanding anything to the contrary in
this Section 9.8(a)(1) or (a)(2), the Seller in no event shall be obligated to
indemnify, defend or hold harmless any Purchaser Indemnified Party for any Taxes
of Newco for any tax period to the extent such Taxes arise solely from or as a
result of any action taken by Newco (or by any Purchaser Indemnified Person or
Affiliate with respect to Newco) post-Closing including, without limitation, any
elections or changes in the legal structure of Newco, (3) Tax of Newco resulting
from the breach of the provision of Sections 3.8 or 5.13(a), (4) Taxes
attributable to the first three-months as of and after the Closing Date during
which Newco Employees are employed by Newco, including any Taxes resulting from
the Consulting Agreement, in each case other than as a result of, or arising out
of the failure of the Purchaser and its Affiliates to comply with the
requirements set forth in Schedule 9.8, but only to the extent such Taxes exceed
the funds held by Newco on the Closing Date with respect to such matters, and
(5) Losses arising out of or incident to the imposition, assessment or assertion
of any Tax described in (1)-(4).
(b) The Purchaser shall indemnify, defend and hold
harmless (on an after tax basis and net of any directly related tax credit or
deduction that the Seller Indemnified Persons actually obtain) the Seller from
any Taxes (1) imposed on Newco solely as a result of any action by the Purchaser
or its Affiliates (or by Newco after the Closing), including but not limited to
Taxes resulting from such action (i) occurring on the Closing Date after the
Closing that is not in the ordinary course of business, (ii) occurring after the
Closing Date or (iii) occurring during a Pre-Closing Tax Period, (2) resulting
from the breach of Section 5.13(d), or (3) imposed on Newco with respect to any
taxable period or portion thereof that begins after the Closing Date;
26
except to the extent that such Taxes above are subject to indemnification by the
Seller pursuant to Section 9.8(a)(1)-(5) above.
(c) The Purchaser shall indemnify, defend and hold
harmless (on an after tax basis and net of any directly related tax credit or
deduction that the Seller actually obtains) the Seller from any Taxes not
subject to indemnification pursuant to paragraph (a), including but not limited
to Taxes (1) resulting from any transaction (i) occurring on the Closing Date
after the Closing that is not in the ordinary course of business, (ii) occurring
after the Closing Date or (iii) occurring during a Pre-Closing Tax Period as a
result of any action by the Purchaser or by the Seller at the direction of the
Purchaser (including, without limitation, any Taxes resulting from, arising out
of or due to any action or election taken by the Seller at the request or
direction of the Purchaser) or (2) imposed on Newco with respect to any taxable
period or portion thereof that begins after the Closing Date.
(d) For purposes of this Section, in the case of Taxes
that are imposed on a periodic basis and are payable for a Tax period that
includes (but does not end on) the Closing Date, the portion of such Tax related
to the portion of such Tax period ending on and including the Closing Date shall
(1) in the case of any Taxes other than gross receipts, sales or use Taxes and
Taxes based upon or related to income, be deemed to be the amount of such Tax
for the entire Tax period multiplied by a fraction the numerator of which is the
number of days in the Tax period ending on and including the Closing Date and
the denominator of which is the number of days in the entire Tax period, and (2)
in the case of any Tax based upon or related to income and any gross receipts,
sales or use Tax, be deemed equal to the amount which would be payable if the
relevant Tax period ended on and included the Closing Date. All determinations
necessary to give effect to the allocation set forth in the foregoing clause (2)
shall be made in a manner consistent with prior practice of Newco.
9.9. EXCLUSIVE REMEDIES. Except as otherwise set forth
herein, the remedies set forth in this Article IX will be the exclusive remedies
available to the Parties hereto with respect to any Losses or any other damages,
costs or expenses of any kind or nature or any other claim or remedy directly or
indirectly resulting from, arising out of or relating to any of this Agreement
(including alleged breaches of representation, warranty, covenant or any other
term or provision or for any alleged misrepresentation), the transactions
contemplated hereby and the Shares; provided that nothing herein shall limit in
any way any Party's remedies in respect of fraud by the other Party in
connection herewith or in connection with the transactions contemplated hereby.
Notwithstanding anything to the contrary in this Agreement, the Parties hereby
agree that any and all Actions resulting from, arising out of or based upon the
provisions of this Agreement may be asserted or brought solely under and in
accordance with the terms of this Agreement.
ARTICLE X
DISPUTE RESOLUTION
10.1. PURPOSE. It is the objective of the Parties to
establish procedures to facilitate the resolution of disputes arising under this
Agreement in an expedient manner by mutual cooperation and without resort to
litigation. To accomplish this objective, the Parties
27
agree to follow the procedures set forth in this Article X if and when a dispute
arises out of, or relating to, this Agreement.
10.2. ARBITRATION. The Parties agree that any dispute
arising out of or in connection with this Agreement, or the breach, termination,
or invalidity thereof, shall be resolved as follows. In the event of a dispute
between the Parties, either Party may initiate the dispute resolution procedures
of this Section 10.2 by providing written notice (the "NOTICE OF CLAIM") to the
other Party identifying the dispute and stating the desire to resolve the
dispute. After receiving the Notice of Claim, respondent will respond in writing
by stating its position and setting forth a proposed resolution of the dispute.
If claimant and respondent are not able to resolve the dispute within twenty
(20) days thereafter, the matter in dispute shall be settled by arbitration in
accordance with the Rules of Arbitration of the International Chamber of
Commerce. The arbitral tribunal shall be comprised of three arbitrators; the
Party nominated arbitrators shall be appointed in accordance with the Rules of
the ICC. The Party nominated arbitrators will have thirty (30) days to appoint a
chair. If they are unable to make such appointment within that time, then the
chair shall be appointed in accordance with the Rules of the ICC. The place of
arbitration shall be Stockholm, Sweden. The language to be used in the arbitral
proceedings shall be English. The Parties agree that the losing Party shall bear
the cost of the arbitration filing and hearing fees, the cost of the arbitrators
and the ICC administrative expenses and the attorney's fees and associated costs
and expenses of each Party. The Parties agree to reasonable document discovery
provided the requesting Party makes a showing of relevance and need to the
tribunal.
ARTICLE XI
MISCELLANEOUS
11.1. ASSIGNMENT.
(a) The Purchaser may only Transfer or assign this
Agreement and its rights and obligations hereunder in accordance with Sections
5.7, 5.8, 5.9 and 11.1. The Seller may only Transfer its respective rights and
obligations hereunder in accordance with this Section 11.1.
(b) Commencing on the date that is three (3) months
following the Closing Date, each of the Seller and the Purchaser shall be
entitled to Transfer its rights or obligations under this Agreement without the
written consent of the other Party hereto to its Permitted Transferee for so
long as such Permitted Transferee continues to be a Permitted Transferee;
provided that such Transfer shall be null and void ab initio and of no further
force and effect unless (i) such Transfer was effected in accordance with the
terms and conditions of this Agreement and (ii) the Permitted Transferee, if not
already a Party hereto, shall have executed and delivered to the other Party
hereto, as a condition precedent to such Transfer, an instrument or instruments
reasonably satisfactory to the other Party hereto, confirming that the Permitted
Transferee shall be bound by the terms of this Agreement to the same extent
applicable to the transferring Party, as if such Permitted Transferee was
originally a Party hereto. Any such Permitted Transferee shall and the
transferring Party shall cause such Permitted Transferee to Transfer back to the
transferring Party (or to another Permitted Transferee of the transferring
28
Party), its rights and obligations hereunder prior to such Permitted Transferee
ceasing to be a Permitted Transferee of the transferring Party. Upon such
Permitted Transferee ceasing to be a Permitted Transferee hereunder, any
Transfer of rights and obligations hereunder shall be null and void from
inception and of no further force or effect.
(c) Commencing on the date on which all of the Milestone
Payments to be paid pursuant to Section 2.2(b) hereof have been paid to and
received by the Seller (provided that all such Milestone Payments may be
pre-paid at any time, regardless of whether such Milestone Payments are then due
under Section 2.2 hereof), the Purchaser or its Permitted Transferees shall be
entitled in accordance with this clause (c) to Transfer its rights and
obligations under this Agreement to a Third Party, subject to the prior written
consent of the Seller; provided that (i) in the event of a Volitional Change in
Control such Transfer shall be null and void ab initio and of no further force
and effect unless (A) such Transfer was effected in accordance with the terms
and conditions of this Agreement and (B) the Third Party shall have executed and
delivered to the Seller as a condition precedent to such Transfer, an instrument
or instruments reasonably satisfactory to the Seller confirming that the Third
Party shall be bound by the terms of this Agreement to the same extent
applicable to the Purchaser as if such Third Party was originally a Party hereto
and (ii) in the event of a Change in Control (other than a Volitional Change in
Control) such Transfer shall give rise to a right of termination pursuant to
Section 8.4 herein unless such Transfer was effected in accordance with the
terms and conditions of this Agreement. The Parties agree that the Seller may
only withhold its consent in the event that the Seller reasonably determines
(such determination to be made without unreasonable delay, and such consent, or
the withholding thereof, to be promptly communicated once determined) that the
proposed Third Party transferee **** (iv) does not have financial condition at
least comparable to that of Medicis as of Closing or (v) has been or is
currently debarred under the authority of the FDCA or Canada's FDA and/or
regulations thereunder.
(d) The Seller or its Permitted Transferees shall be
entitled to Transfer its rights and obligations under this Agreement to a Third
Party, subject to the prior written consent of the Purchaser; provided that (i)
in the event of a Volitional Change in Control such Transfer shall be null and
void ab initio and of no further force and effect, unless (A) such Transfer was
effected in accordance with the terms and conditions of this Agreement and (B)
the Third Party shall have executed and delivered to the Purchaser as a
condition precedent to such Transfer, an instrument or instruments reasonably
satisfactory to the Purchaser confirming that the Third Party shall be bound by
the terms of this Agreement to the same extent applicable to the Seller or its
Permitted Transferees as if such Third Party was originally a Party hereto and
(ii) in the event of a Change in Control (other than a Volitional Change in
Control) such Transfer shall give rise to a right of termination pursuant to
Section 8.4 herein unless such Transfer was effected in accordance with the
terms and conditions of this Agreement. The Parties agree that the Purchaser may
only withhold its consent in the event that the Purchaser reasonably determines
(such determination to be made without unreasonable delay, and such consent, or
the withholding thereof, to be promptly communicated once determined) that (i)
the proposed Third Party transferee does not have the financial condition to
perform the Seller's obligations under this Agreement, (ii) if the Seller and/or
one of its Affiliates is not the surviving entity upon the consummation of such
proposed Transfer, upon the consummation of such proposed Transfer the successor
entity will not have a manufacturing capacity at least comparable to the
Seller's and its Affiliates' manufacturing capacity immediately prior to such
proposed Transfer, (iii) such
29
Transfer has not received all required Regulatory Approvals, or if the Seller
and/or one of its Affiliates is not to be the surviving entity upon the
consummation of such proposed Transfer, upon the consummation of such proposed
Transfer the proposed Third Party transferee will not have all Regulatory
Approvals required for its performance of this Agreement or (iv) such proposed
Third Party transferee has been or is currently debarred under the authority of
the FDCA or Canada's FDA and/or regulations thereunder.
(e) The Seller and the Purchaser, as the case may be, and
each of their respective present and former officers, directors, employees and
Affiliates shall be released and discharged of its respective rights and
obligations pursuant to this Agreement and from any and all claims, rights,
causes of actions or suits and recoveries related thereto upon the consummation
of a Transfer to a Third Party in accordance with the terms and conditions set
forth herein.
(f) Subject to the foregoing provisions of this Section
11.1, this Agreement shall be binding upon and inure to the benefit of the
successors and assigns of each of the Parties.
11.2. NOTICES. All notices or other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the Party for whom it is intended, if delivered
by registered or certified mail, return receipt requested, or by a national
courier service, or if sent by facsimile, provided that the facsimile is
promptly confirmed by telephone confirmation thereof, to the Person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such Person.
If to the Seller:
Q-Med International Holding B.V.
Narita Xxx 000
0000 XX Xxxxxxxxx
with a copy to (which shall not constitute notice):
Q-Med
Xxxxxxxxxxxxxx 00
000 00 Xxxxxxx, Xxxxxx
Attention: Legal Department
Telephone No.: x00 00 000 00 00
Facsimile No.: x00 00 000 00 00
with a copy to (which shall not constitute notice):
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
30
If to the Purchaser:
Medicis Sweden Holdings AB
c/o Medicis Pharmaceutical Corporation
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx, 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Medicis Pharmaceutical Corporation
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Legal Department
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Older and Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
11.3. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the Laws of the State of New York regardless of
the Laws that might govern pursuant to applicable principles of conflicts of
Laws thereof.
11.4. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same agreement.
11.5. HEADINGS. The heading references herein are for
convenience purposes only, do not constitute a part of this Agreement and shall
not be deemed to limit or affect any of the provisions hereof.
11.6. ENTIRE AGREEMENT. The Transaction Agreements, each of
their appendices, exhibits, schedules and certificates, and all documents and
certificates delivered or contemplated in connection herewith and therewith
constitute the entire agreement between the Parties with respect to the subject
matter hereof and supersede all prior agreements or understandings of the
Parties relating thereto.
11.7. SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or
31
unenforceable in any respect for any reason, the Parties shall negotiate in good
faith with a view to the substitution therefor of a suitable and equitable
solution in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid provision; provided, however, that the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Parties shall be enforceable to the fullest extent permitted by Law.
11.8. EXPENSES. The Seller and the Purchaser will each bear
their own expenses incurred in connection with the negotiation and preparation
of this Agreement and, except as set forth in this Agreement, the performance of
the obligations contemplated hereby.
11.9. FURTHER ACTIONS. The Seller and the Purchaser each
hereby agrees to use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or proper and
execute and deliver such documents and other papers as may be required to make
effective the transactions contemplated by this Agreement.
11.10. NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT AS
SPECIFICALLY AND EXPRESSLY SET FORTH HEREIN, (I) THE SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, RELATING TO
THE SHARES OR NEWCO, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR
WARRANTY AS TO VALUE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FOR
ORDINARY PURPOSES, OR ANY OTHER MATTER, (II) THE SELLER MAKES NO, AND HEREBY
DISCLAIMS ANY, REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE REGARDING THE
SHARES OR NEWCO AND (III) THE SHARES AND NEWCO ARE BEING TRANSFERRED TO THE
PURCHASER ARE CONVEYED ON AN "AS IS, WHERE IS" BASIS AS OF THE CLOSING, AND THE
PURCHASER SHALL RELY UPON ITS OWN EXAMINATION THEREOF. Without limiting the
foregoing, the Purchaser acknowledges that it has not and is not relying upon
any implied warranty of merchantability or fitness for a particular purpose, or
upon any representation or warranty whatsoever as to the prospects (financial,
regulatory or otherwise) or the reliability, suitability, ability to produce a
particular result, and validity, regarding the Shares or Newco, except that the
Purchaser may rely on the representations and warranties contained herein. This
provision shall not affect the rights or obligations of either Party hereto with
respect to any other Transaction Agreement.
32
11.11. WAIVER. Any term or provision of this Agreement may
be waived at any time by the Party entitled to the benefit thereof only by a
written instrument executed by such Party. No delay on the part of the Seller or
the Purchaser in exercising any right, power or privilege hereunder will operate
as a waiver thereof, nor will any waiver on the part of either the Seller or the
Purchaser of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder nor will any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
11.12. AMENDMENT. This Agreement may be modified or amended
only by written agreement of the Parties hereto signed by authorized
representatives of the Parties hereto and specifically referencing this
Agreement.
11.13. NO THIRD PERSON RIGHTS. Except as provided in Article
IX and Section 11.18, no provision of this Agreement will be deemed or construed
in any way to result in the creation of any rights or obligations in any Person
not a Party to this Agreement.
11.14. CONSTRUCTION. This Agreement will be deemed to have
been drafted by each of the Seller and the Purchaser and will not be construed
against any Party as the draftsperson hereof. Whenever this Agreement refers to
a number of days, such number shall refer to calendar days unless Business Days
are specified.
11.15. APPENDICES, EXHIBITS, SCHEDULES AND CERTIFICATES.
Each appendix, exhibit, schedule and certificate attached hereto is incorporated
herein by reference and made a part of this Agreement.
11.16. PUBLICITY. Neither Party shall issue or release any
media release or public announcement (including, without limitation, any
announcements made via any posting on the World Wide Web or Internet), or other
similar publicity announcing the existence of this Agreement or relating to any
term or condition of this Agreement or the relationships created by this
Agreement without three (3) Business Days prior written notice, including by
e-mail, to the other Party and the prior agreement of the other Party on the
relevant wording relating to the Agreement or term or condition of the
Agreement. Notwithstanding the foregoing, each Party shall have the right to
issue media releases immediately and without the prior consent of the other
Party that disclose any information required by the rules and regulations of the
Securities and Exchange Commission, the Stockholm Stock Exchange or applicable
Law; provided that the disclosing Party shall notify, including by e-mail, the
other Party no later than simultaneously with such issuance of such issuance and
shall use commercially reasonable efforts to provide a copy of the relevant
wording relating to the Agreement, or any term or condition thereof or the other
Party prior to the disclosure thereof. The Seller shall contact Medicis'
Investor Relations Group for approval. The Purchaser shall contact **** at Q-Med
for approval.
11.17. ENFORCEMENT. The Parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is accordingly
agreed that the Parties shall be entitled to specific performance of the terms
of this Agreement, this being in addition to any other remedy to which they are
entitled at law or in equity.
33
11.18. CERTAIN AFFILIATE TRANSFERS. Neither Party shall (1)
invest, directly or indirectly, in an Affiliate which has operations or conducts
activities in the field of Aesthetic Enhancement, or (2) transfer or make
available any of its activities, operations or assets in the field of Aesthetic
Enhancement (including research and development, marketing, know-how or other
intellectual property, management of regulatory relations and protection of
intellectual property) to an Affiliate, without causing such Affiliate to enter
into an agreement for the benefit of the other Party by which such Affiliate
agrees to be bound by the provisions hereof in all relevant respects to the same
effect as if such Affiliate had originally been a party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Q-MED INTERNATIONAL HOLDING. B.V.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx-Xxxxxxxx
Title: Director
MEDICIS SWEDEN HOLDINGS AB
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
