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EXHIBIT 10.18
CONFIDENTIAL
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AGREEMENT
FOR
PURCHASE AND SALE
OF ASSETS RELATING TO
SEPTRA(R), PROLOPRIM(R), MANTADIL(R),
AND KEMADRIN(R)
BY AND BETWEEN
GLAXO WELLCOME INC.
AND
MONARCH PHARMACEUTICALS, INC.
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TABLE OF CONTENTS
ARTICLE 1 CONVEYANCE OF ASSETS; OTHER AGREEMENTS.................................... 2
1.01 Assets to be Conveyed................................................. 2
1.02 Purchase Price........................................................ 3
1.03 Payment............................................................... 3
1.04 Existing Inventory of Products........................................ 3
1.05 Closing............................................................... 4
1.06 Delivery of Documents................................................. 4
1.07 Conveyance of Assetes and Inventory................................... 5
1.08 Scope of Monarch's Rights............................................. 5
1.09 Supply Agreement...................................................... 8
1.10 Taxes................................................................. 8
1.11 Tools, Dies, Molds.................................................... 8
ARTICLE 2 ACCOUNTS RECEIVABLE AND RETURNED GOODS.................................... 9
2.01 Pre-Closing Accounts Receivable....................................... 9
2.02 Post-Closing Accounts Receivable...................................... 9
2.03 Returned Goods........................................................ 9
2.04 Excess Returned Goods.................................................10
ARTICLE 3 REGULATORY MATTERS........................................................11
3.01 Filings with FDA Regarding Transfer of NDAs...........................11
3.02 Responsibility for the Products.......................................12
3.03 Rebates for Amounts Paid under Government Programs....................13
ARTICLE 4 REPRESENTATIONS AND WARRANTIES............................................14
4.01 Representations and Warranties of GW..................................14
4.02 Representations and Warranties of Monarch.............................18
4.03 Survival of Representations and Warranties............................20
4.04 Certain Limitations...................................................20
ARTICLE 5 INDEMNIFICATION...........................................................20
5.01 Indemnification by GW.................................................20
5.02 Indemnification by Monarch............................................21
5.03 Payments..............................................................22
5.04 Conduct of Litigation.................................................22
ARTICLE 6 MISCELLANEOUS.............................................................23
6.01 Entire Agreement......................................................23
6.02 Counterparts..........................................................24
6.03 Brokerage and Other Commissions.......................................24
6.04 Notices...............................................................24
6.05 Assignment............................................................25
6.06 Governing Law.........................................................26
6.07 Headings..............................................................26
6.08 Expenses..............................................................26
6.09 Successors and Assigns................................................26
6.10 Agreement to Take Necessary and Desirable Actions.....................26
6.11 No Implied Waiver.....................................................27
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6.12 Force Majeure.........................................................27
6.13 Confidentiality.......................................................28
6.14 Relationship..........................................................28
6.15 Severability..........................................................28
6.16 Press Release.........................................................28
6.17 Affiliates............................................................28
6.18 Waiver of Bulk Sales..................................................29
6.19 Exhibits and Schedules................................................29
6.20 Guaranty..............................................................29
SCHEDULES
Schedule 1 List of Products
Schedule 1.01(a) Trademarks
Schedule 1.01(b) Description of Know-How
Schedule 1.01(c) Regulatory Approvals and Filings
Schedule 1.03 Wiring Instructions to Glaxo Wellcome Inc.
Schedule 1.04 Inventory
Schedule 1.07 Liens, Claims, Charges, Encumbrances and Restrictions on the Assets
and the Inventory
Schedule 1.08(c) Active Ingredients for Identical Products
Schedule 4.01(f) Litigation
Schedule 4.01(k) Form 483s, Warning Letters, Etc.
EXHIBITS
Exhibit A - Note
Exhibit B - Security Agreement
Exhibit C - Xxxx of Sale
Exhibit D - Assignment of Trademarks
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AGREEMENT
THIS AGREEMENT, is dated and entered into as of November 14, 1997 (this
"Agreement"), between GLAXO WELLCOME INC., a corporation organized and existing
under the laws of the State of North Carolina, having a principal place of
business at Five Xxxxx Drive, Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
("GW") and MONARCH PHARMACEUTICALS, INC., a corporation organized and existing
under the laws of the State of Tennessee, having a principal place of business
at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 ("Monarch")
WITNESSETH:
WHEREAS, GW desires to sell to Monarch, and Monarch desires to purchase
from GW, certain assets relating to GW's pharmaceutical products marketed under
the Septra(R), Proloprim(R), Mentadil(R), and Kemadrin(R) trademarks listed on
Schedule I attached hereto (collectively, the "Products"), on the terms and
subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby mutually acknowledged, GW and Monarch
hereby covenant, contract, and agree as follows:
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ARTICLE 1
CONVEYANCE OF ASSETS; OTHER AGREEMENTS
1.01 ASSETS TO BE CONVEYED.
On the Closing Date (as defined below), and subject to the terms and
conditions of this Agreement, GW will sell, assign, convey, transfer, and
deliver to Monarch, and Monarch will purchase and accept from GW, the following:
(a) All of GW's right, title, and interest in the United States of
America, its territories and possessions (the "Territory"), in and to the
trademarks set forth on Schedule 1.01(a) attached hereto (collectively, the
"Trademarks"), together with the goodwill of the business symbolized by the
Trademarks in the Territory;
(b) All of GW's right, title, and interest in the Territory in and to
the know-how relating to the production, manufacturing, packaging, release,
validation, and stability of the Products as described or referenced in the
documents and other materials set forth on Schedule 1.01(b) attached hereto (the
"Know-How");
(c) All of GW'S right, title, and interest in and to the new drug
applications (and other regulatory applications) for the Products set forth on
Schedule 1.01(c) attached hereto (collectively, the "NDAs"), including
supplements, records, and reports that are required to be kept under 21 C.F.R.
ss. 314.81 (or under any comparable regulation applicable to an abbreviated
antibiotic drug application), whether issued, pending, or in draft form,
together with correspondence to or from the United States Food and Drug
Administration (the "FDA") which relates to the Products; and
(d) Subject to Section 1.08(e) of this Agreement, the tradedress, if
any, associated with the Products in the Territory, excluding any corporate or
division name of GW or any of its
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Affiliates, any logo of GW or its Affiliates, and any trademark (other than the
Trademarks) of GW or any of its Affiliates (the "Tradedress")
All of the assets described in Sections 1.01(a) - (d) are hereinafter
sometimes referred to collectively as the "Assets." Monarch acknowledges and
agrees that the Assets do not include any assets of the type described in
Section 1.01(c) relating to Mantadil(R)).
1.02 PURCHASE PRICE.
The purchase price for the Assets (the "Purchase Price") shall be
Thirteen Million Nine Hundred Thousand Dollars ($13,900,000).
1.03 PAYMENT.
Monarch shall pay to GW the Purchase Price as follows: (i) One Million
Dollars ($1,000,000) shall be paid to GW by Monarch by wire transfer of
immediately available funds to the account specified in Schedule 1.03 attached
hereto at the Closing (as defined below), and (ii) Monarch shall execute and
deliver to GW at the Closing a promissory note in the original principal amount
of Twelve Million Nine Hundred Thousand Dollars ($12,900,000) in the form of
Exhibit A attached hereto (the "Note"). To secure Monarch's obligations under
the Note, Monarch shall execute and deliver to GW at the Closing a security
agreement in the form of Exhibit B attached hereto (the "Security Agreement")
granting GW a security interest and lien on the collateral described therein.
1.04 EXISTING INVENTORY OF PRODUCTS.
On the Closing Date, GW will sell, assign, convey, and transfer to
Monarch, and Monarch will purchase and accept from GW, all of GW's finished
goods inventory of the Products as set forth on Schedule 1.04 attached hereto
(the "Inventory"). The purchase price for the Inventory shall be Seven Hundred
Twenty Seven Thousand Six Hundred Twenty Nine & 42 Dollars ($727,629 42/100 ),
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and shall be paid by Monarch to GW one hundred twenty (120) days after the
Closing by wire transfer of immediately available funds to the account specified
in Schedule 1.03. GW will begin shipping the Inventory on the Closing Date and
will complete shipping of the Inventory within ten (10) business days after the
Closing Date. All Inventory will be shipped at Monarch's expense to Monarch's
facilities in Bristol, Tennessee or such other locations as the parties may
mutually agree via a carrier designated by Monarch. GW shall bear the risk of
loss to the Inventory until the Inventory has been delivered to the carrier
designated by Monarch, thereafter Monarch shall bear the risk of loss to the
Inventory. GW will provide to Monarch (i) upon shipment of the Inventory, GW's
standard certificate of analysis for each batch of Product and (ii) within ten
(10) days of the initial shipment of each Product, a complete copy of one
representative batch record for such Product.
1.05 CLOSING.
The closing of the transactions provided for in this Agreement (the
"Closing") shall take place at 8:30 a.m. local time on November 14, 1997, or on
such other date as GW and Monarch may agree in writing (the "Closing Date"), at
the offices of GW located at Five Xxxxx Drive, Research Triangle Park, North
Carolina.
1.06 DELIVERY OF DOCUMENTS.
(a) Subject to the terms and conditions of this Agreement, GW will
deliver to Monarch at the Closing (unless otherwise specified):
(i) An irrevocable xxxx of sale in the form of Exhibit B hereto
(the "Xxxx of Sale");
(ii) An assignment in the form of Exhibit C hereto regarding the
Trademarks (the "Assignment of Trademarks");
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(iii) Copies of the materials comprising the Know-How described on
Schedule 1.01(b), all in accordance with a time frame and in a manner reasonably
acceptable to the parties, but in no event later than thirty (30) days after the
Closing Date, and
(iv) A complete copy of the NDAs and other materials described in
Section 1.01(c), all in accordance with a time frame and in a manner reasonably
acceptable to the parties, but in no event later than thirty (30) days after the
Closing Date.
(b) Subject to the terms and conditions of this Agreement, Monarch will
deliver to GW at the Closing:
(i) The Note,
(ii) The Security Agreement, and
(iii) Uniform Commercial Code Financing Statements in appropriate
form for filing with the offices of the Tennessee Secretary of State and the
Register of Deeds of Xxxxxxxx County, Tennessee listing Monarch as debtor and GW
as secured party covering the collateral described in the Security Agreement.
1.07 CONVEYANCE OF ASSETS AND INVENTORY.
The Assets and the Inventory shall be transferred and conveyed to
Monarch free and clear of all liens, claims, charges, encumbrances, or
restrictions, except as specifically described on Schedule 1.07 attached hereto.
1.08 SCOPE OF MONARCH'S RIGHTS
(a) Monarch hereby acknowledges and agrees that: (i) GW manufactures,
sells, and distributes one or more pharmaceutical products outside of the
Territory that are equivalent or substantially equivalent to the Products and
that GW will continue to do so after the Closing Date; (ii) neither Monarch nor
its Affiliates shall interfere with, or have the right to prohibit, the
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development, manufacture, sale, or distribution of the Products outside the
Territory, (iii) Monarch will acquire no right, title, or interest whatsoever in
any property or assets of GW or any of GW's Affiliates except as expressly set
forth in this Agreement, including no right, title, or interest to any property
or assets outside the Territory; (iv) neither Monarch nor its Affiliates shall
use or disclose the Know-How outside of the Territory; and (v) neither Monarch
nor its Affiliates shall manufacture, market, distribute, or sell any of the
Products outside of the Territory or knowingly cause the Products to be
manufactured, marketed, distributed, or sold outside the Territory.
(b) Monarch acknowledges and agrees that GW and its Affiliates shall be
entitled to use the Trademarks and the Know-How after Closing only to the extent
necessary to fulfill GW's obligations hereunder, under the Supply Agreement (as
defined below), or under applicable laws or regulations.
(c) GW shall not, and shall not permit any of its Affiliates to, for a
period of five (5) years from the Closing Date, except as provided in the Supply
Agreement, sell, produce, manufacture, market, or distribute in the Territory
any products which contain the active ingredients set forth on Schedule 1.08(c)
attached hereto ("Identical Products"); and neither GW nor its Affiliates shall
knowingly cause the Products to be manufactured, marketed, distributed, or sold
inside the Territory; provided, however, that this Section 1.08(c) shall not
apply to any products produced, sold, manufactured, marketed, or distributed by
any business (or any portion thereof), person, or group of persons, which is
acquired by, or which acquires, or which forms a merger with GW or any of its
Affiliates (whether through the formation of a new holding company or
otherwise), in a single transaction or a series of related transactions. GW
agrees that neither GW nor its Affiliates shall use or disclose the Know-How
inside the Territory.
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(d) Nothing in this Section 1.08 shall prohibit (i) the provision by GW
or any of its Affiliates of assistance to the purchaser of any manufacturing
facility previously owned by GW or any of its Affiliates that is of the type of
assistance that is customarily provided by sellers of manufacturing facilities
to purchasers of such facilities and that relates solely to manufacturing, or
(ii) the manufacture by GW or any of its Affiliates of any Identical Products in
the Territory for sale or distribution outside the Territory.
(e) The parties acknowledge that the Inventory purchased under this
Agreement and the Products to be supplied under the Supply Agreement may contain
packaging and labeling with the names, logos, and trademarks of GW and its
Affiliates (the "GW Packaging Materials"). Monarch may distribute such Inventory
and Products with the GW Packaging Materials; however, Monarch shall not, and
shall have no right to, use such names, logos, or trademarks for any other
purpose and Monarch shall acquire no right, title, or interest in or to such
names, logos, and trademarks.
(f) Notwithstanding Section 1.08(e) above, (i) Monarch shall use its
reasonable best efforts to make all necessary arrangements as soon as possible
so that Monarch will ship all Products (other than the Inventory) without the
use of any GW Packaging Materials, including obtaining all necessary packaging
and labeling materials to do so and related regulatory approvals and, in any
event, by February 1, 1998, Monarch shall distribute all such Products without
the use of any GW Packaging Materials, (ii) if any changes of packaging and
labeling described in this subsection (f) render obsolete or unusable any
packaging or labeling materials or components acquired by GW for the Products,
then Monarch shall purchase from GW at GWs Acquisition Cost (as defined in the
Supply Agreement) all such packaging and labeling materials or components
rendered obsolete or unusable, and (iii) Monarch will purchase, at its expense,
all
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tooling and/or equipment necessary to package and label the Products without GW
Packaging Materials as contemplated by this subsection (f), except the tools,
dies, molds, and the like used exclusively in the manufacture of the Products,
if any, referenced in Section 1.11 of this Agreement.
1.09 SUPPLY AGEREEMENT.
Contemporaneously with the execution of this Agreement, GW and Monarch
are entering into a supply agreement (the "Supply Agreement") under which GW
agrees to supply, and Monarch agrees to purchase, certain of the Products on the
terms and conditions more specifically described therein, and which provides for
certain other matters.
1.10 TAXES.
Monarch shall be responsible for and shall promptly pay all federal,
state, and local transfer, sales, and other taxes, if any, levied or imposed as
a result of the transactions contemplated by this Agreement, excluding any tax
payable on any income or gain of GW.
1.11 TOOLS, DIES, MOLDS.
As soon as reasonably practicable after the Closing, GW will notify its
component suppliers for the Products that GW's right, title, and interest in the
tools, dies, molds, and the like used exclusively in the manufacture of such
components, if any, have been transferred to Monarch. GW, upon the reasonable
request of Monarch, will execute and deliver such instruments and documents as
reasonably necessary to evidence such transfer.
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ARTICLE 2
ACCOUNTS RECEIVABLE AND RETURNED GOODS
2.01 PRE-CLOSING ACCOUNTS RECEIVABLE.
GW and Monarch agree that any accounts receivable or invoices arising
out of sales of the Products by or on behalf of GW on or prior to 11:59 p.m.
(E.S.T.) on the Closing Date shall inure to the benefit of GW.
2.02 POST-CLOSING ACCOUNTS RECEIVABLE.
Monarch and GW agree that any accounts receivable or invoices arising
out of sales of the Products by or on behalf of Monarch after 11:59 p.m.
(E.S.T.) on the Closing Date shall inure to the benefit of Monarch.
2.03 RETURNED GOODS.
Except as otherwise expressly set forth below and subject to Monarch's
timely compliance with its obligations set forth in this Section 2.03 and
Section 2.04, GW and Monarch agree that during the one (1) year period
immediately following the Closing Date, GW shall be responsible for handling
returns of all Products that were sold by GW prior to the Closing Date and that
are returned by customers for credit after the Closing Date. GW shall handle
such returns during such period in accordance with its then applicable resumed
goods policy. Monarch agrees to provide GW with any information reasonably
requested by GW from time to time regarding Monarch's selling prices for the
Products in order to assist GW in its determination of the reimbursement prices
for returned Products. Such information shall be provided by Monarch to GW
promptly, and in any event within ten (10) days, after GW's written request
therefor.
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In the event that during such one (1) year period any returns are
delivered to Monarch, such returns shall be shipped by Monarch to GW and GW
shall reimburse Monarch for the shipping costs incurred.
2.04 EXCESS RETURNED GOODS.
(a) Notwithstanding Section 2.03, or any other provisions of this
Agreement, to the extent the aggregate amount of all credits for resumed
Products granted by GW from and after the Closing Date exceeds One Million One
Hundred Thousand Dollars ($1,100,000) (the "Excess Aggregate Amount"), Monarch
agrees to reimburse GW for the Excess Aggregate Amount promptly, and in any
event within thirty (30) days, after written demand therefor by GW; provided,
however, that any credits granted by GW for any Products as a result of any
product withdrawal or recall by GW (other than a withdrawal or recall resulting
from acts or omissions of Monarch, its Affiliates, or their respective
employees, agents, or distributors) shall not be included for purposes of
determining whether credits for returned goods granted by GW in respect of the
Products exceed the Excess Aggregate Amount. GW shall submit to Monarch any
request for an Excess Aggregate Amount within one hundred twenty (120) days
following the end of the one (1) year period described in Section 2.03.
(b) From time to time during the one (1) year period described in
Section 2.03, but no more than once every ninety (90) calendar days from the
Closing Date, GW, upon Monarch's written request, shall provide Monarch with
information related to aggregate amounts of credits extended for returned
Products anal the methodology of calculating the same. In the event GW claims
that an Excess Aggregate Amount is owed to it, then Monarch shall have ten (10)
days within which to request in writing an audit (either by Monarch or its duly
authorized agents) of GW's records relative to the claimed Excess Aggregate
Amount. Further, if Monarch requests
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such an audit in accordance with this Section, then GW shall permit Monarch or
its duly authorized agents to audit all necessary and reasonable information
related to the actual goods returned and GW's valuation of such goods in order
to confirm the accuracy of the claimed Excess Aggregate Amount. All persons or
entities conducting or involved in such audit shall execute a written agreement
to maintain in confidence all information obtained during the course of any
such audit except for disclosure to Monarch. Each such audit shall be conducted
during GW's normal business hours. In no event shall such audit exceed three
(3) business days in duration, and in all cases Monarch shall use its
reasonable efforts to ensure that such audits are conducted so as not to
interfere with the normal and ordinary operation of GW's business. Monarch
shall be responsible for all of its and its agents' costs and expenses incurred
in connection with such audit. In the event of an audit regarding an Excess
Aggregate Amount pursuant to this Section 2.04(b), the date on which the
payment of such Excess Aggregate Amount is due pursuant to Section 2.04(a)
shall be postponed until such audit is completed or is required to be completed
pursuant to this Section 2.04(b).
ARTICLE 3
REGULATORY MATTERS
3.01 FILINGS WITH FDA REGARDING TRANSFER OF NDAS.
At the Closing, the parties shall file with the FDA the information
required pursuant to 21 C.F.R. ss. 314.72, or any successor regulation thereto,
regarding the transfer of the NDAs from GW to Monarch. GW shall file the
information required of a former owner, and Monarch shall file the information
required of a new owner. The parties also agree to use their reasonable best
efforts to take any and all other actions required by the FDA, or other
necessary governmental agencies, if any, to effect the transfer of the NDAs from
GW to Monarch. GW may retain an
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archival copy of the NDAs, including supplements and records that are required
to be kept under 21 C.F.R. ss. 314.81, and GW shall treat such archived copies
as Confidential Information (as defined in the Supply Agreement) of Monarch and
disclosure of such information shall be governed by the Supply Agreement.
3.02 RESPONSIBILITY FOR THE PRODUCTS.
(a) After the Closing, Monarch shall assume all regulatory
responsibilities permitted by applicable laws and regulations to be assumed by
Monarch, reporting and otherwise, in connection with the Products and the NDAs
including, but not limited to, responsibility for reporting any adverse drug
experiences in connection with the Products, and responsibility for compliance
with the Prescription Drug Marketing Act of 1987, as the same may be amended
from time to time.
(b) Monarch and its Affiliates agree promptly to submit to GW all
adverse drug experience information or customer complaints brought to the
attention of Monarch or its Affiliates in respect of the Products, as well as
any material events and matters concerning or affecting the safety or efficacy
of the Products. GW and its Affiliates agree promptly to submit to Monarch all
adverse drug experience information or customer complaints brought to the
attention of GW or its Affiliates in respect of the Products, as well as any
material events and matters concerning or affecting the safety or efficacy of
the Products. Monarch and GW agree to determine promptly after Closing a
mutually agreeable reporting procedure to communicate the information required
by this Section 3.02(b).
(c) After the Closing, Monarch shall assume all responsibility for any
and all FDA fee obligations for holders or owners of approved new drug
applications and approved, marketed prescription drug products relating to the
Products, including, but not limited to, those defined
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under the Prescription Drug User Fee Act of 1992, as the same may be amended
from time to time.
(d) Promptly after the Closing, Monarch shall take all actions
necessary or required under applicable laws, rules, and regulations, to reflect
that the Assets are owned by Monarch and that Monarch has responsibility
therefor.
(e) After the Closing, GW shall direct all complaints or inquiries
concerning the Products in the Territory to Monarch to the attention of Medical
Affairs Department, at facsimile number 000-000-0000.
3.03 REBATES FOR AMOUNTS PAID UNDER GOVERNMENT PROGRAMS.
Monarch shall reimburse GW for all rebates GW is obligated to pay
pursuant to any government rebate program for amounts charged to GW's NDC codes
for the Products with respect to sales of the Products from thirty (30) days
after the Closing Date. All payments due under this Section 3.03 shall be made
promptly to GW upon submission to Monarch of invoices that describe the
requested payments in reasonable detail. Monarch shall obtain new NDC codes for
the Products as soon as practicable after the Closing Date. In the event Monarch
disputes an amount owed under a government rebate program, GW shall provide to
Monarch copies of any documents and records evidencing original rebate claims
and any resubmissions of such claims and data relating to unit rebate
calculations in order to enable Monarch to resolve such disputed amount.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 REPRESENTATIONS AND WARRANTIES OF GW.
GW makes the following representations and warranties. The phrase "to
the knowledge of GW" or any substantially equivalent phrase, as used in this
Article 4, shall mean to the actual knowledge of officers and directors of GW
after reasonable inquiry.
(A) ORGANIZATION AND STANDING. GW is a corporation duly organized,
validly existing, and in good standing under the laws of the State of North
Carolina.
(B) POWER AND AUTHORITY. GW has all requisite corporate power and
authority to execute, deliver, and perform this Agreement and the other
agreements and instruments to be executed and delivered by it pursuant hereto
and to consummate the transactions contemplated herein and therein. The
execution, delivery, and performance of this Agreement by GW do not, and the
consummation of the transactions contemplated hereby will not, violate any
provisions of GW's Articles of Incorporation, Bylaws, any law or regulation
applicable to GW, or any agreement, mortgage, lease, instrument, order,
judgment, or decree to which GW is a party or by which GW is bound or result in
the creation or acceleration of any lien charge, security interest, or other
encumbrance on the Assets.
(C) CORPORATE ACTION; BINDING ECT. GW has duly and properly taken all
action required by law, its Articles of Incorporation, its Bylaws, or otherwise,
to authorize the execution, delivery, and performance of this Agreement, the
Xxxx of Sale, the Supply Agreement, and the Assignment of Trademarks
(collectively, the Xxxx of Sale, the Supply Agreement, and the Assignment of
Trademarks are referred herein to as The "Collateral Agreements"), and the other
instruments to be executed and delivered by it pursuant hereto and the
consummation of
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transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by GW and constitutes, and the Collateral Agreements and
the other instruments contemplated hereby when duly executed and delivered by GW
will constitute, legal, valid, and binding obligations of GW enforceable against
it in accordance with their respective terms, except as enforcement may be
affected by bankruptcy, insolvency, or other similar laws and by general
principles of equity.
(d) Consents. No consent or approval of, or filing with or notice to,
any federal, state, or local governmental or regulatory authority, agency, or
department or any other person not a party to this Agreement is required or
necessary to be obtained by GW or on its behalf in connection with the
execution, delivery, and performance of this Agreement or to consummate the
transactions contemplated hereby, except as contemplated by Section 3.01 hereof.
(e) OWNERSHIP OF ASSETS. GW is the owner of the Assets described in
Sections 1.01(a), 1.01(c), and 1.01(d) and, to GW's knowledge, the Assets
described in Section 1.01(b), free and clear of all liens, claims, charges, or
encumbrances, except for liens for taxes not yet due and payable and except as
described on Schedule 1.07 attached hereto.
(f) LITIGATION OR DISPUTES. Except as disclosed in Schedule 4.01(f)
attached hereto, there is no claim, outstanding commitment to any governmental
regulatory agency, action, suit, proceeding, investigation, or arbitration
pending or, to GW's knowledge, threatened against GW relating to the Assets, and
GW is not in violation of or in default with respect to any applicable law,
rule, regulation, judgment, order, writ, injunction, award, or decree of any
arbitrator, court, or administrative body, the result of any of which, either
individually or cumulatively, would have a materially adverse effect on the
Assets in the Territory or GW's compliance with and performance under the terms
of this Agreement or the Collateral Agreements.
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(g) TRADEMARKS; INTELLECTUAL PROPERTY. Schedule 1.01(a) attached hereto
is a true and correct list of all trademarks owned by GW and used by GW in the
manufacture, marketing, and sale of the Products in the Territory. The
Trademarks are the only trademarks used or held by GW for use in connection with
or otherwise necessary for the conduct of GW's business as now conducted for the
Products in the Territory. GW owns no patents necessary for the conduct of GW's
business as now conducted for the Products in the Territory. GW has not received
any notice of any claim that any of the Assets infringe on any property rights
of any other party. There is no claim, action, suit, or proceeding, pending or,
to GW's knowledge, threatened alleging that the use by GW or its Affiliates of
the Trademarks or the Know-How infringes any patents or other intellectual
property rights of third parties. GW has not executed or granted to any
Affiliate or any third party in the Territory any license, sublicense, or
contract covering the Know-How or the Trademarks.
(h) COMPLIANCE WITH LAW. GW has, to its knowledge, conducted its
operations in connection with the manufacture and sale of the Products in
material compliance with all applicable federal, state, and local laws and
regulations, including FDA regulations, and possesses all approvals, consents,
licenses, and permits required for the conduct of its business as now conducted
for the Products or as will be necessary to perform its obligations under the
Supply Agreement.
(i) WARRANTY AND DISCLAIMER OF WARRANTIES. GW warrants that the
Inventory was manufactured in accordance with the then-applicable specifications
for the Products and in accordance with current good manufacturing practices in
effect at the time of manufacture. GW further warrants that the Inventory, when
delivered to Monarch, will not be (i) adulterated or misbranded by GW within the
meaning of the United States Federal Food, Drug and Cosmetic
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Act, as amended (the "FD&C Act") or (ii) an article that may not be introduced
into interstate commerce under the provisions of Sections 404 or 505 of the FD&C
Act. Set forth on Schedule 1.04 attached hereto is a list accurate in all
material respects of the expiration dates of the Inventory. WITH RESPECT TO THE
INVENTORY, GW MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY
MAKES NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR ANY PARTICULAR
PURPOSE.
(j) RECALLS OR WITHDRAWALS. During the period commencing on June 30,
1996, and ending on the date hereof, there have been no: (i) Products which have
been recalled or withdrawn by GW or its Affiliates in the Territory (whether
voluntarily or otherwise) or (ii) proceedings in the Territory brought against
GW or its Affiliates (whether such proceedings have since been completed or
remain pending) seeking the recall, withdrawal, or seizure of any of the
Products or seeking to enjoin GW or any of its Affiliates from distributing such
Products.
(k) FACILITIES AND MANUFACTURE. Except as set forth on Schedule 4.01(k)
attached hereto, and only to the extent it could have a material adverse effect
on the Assets or GW's performance hereunder or under any of the Collateral
Agreements, during the period commencing on June 30, 1996, and ending on the
date hereof, with respect only to the Products, neither GW nor its Affiliates
have received or been subject to: (i) any FDA Form 483's relative to the
Products; (ii) any FDA Notices of Adverse Findings relative to the Products, or
(iii) warning letters or other correspondence from the FDA or any other
governmental officials or agencies concerning the Products in which the FDA or
other such governmental officials or agencies asserted that the operations of GW
were not in compliance with applicable law, regulations, rules, or guidelines.
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(l) Since June 30, 1996, GW has conducted its business relating to the
Products in the ordinary course of its business in all material respects and,
since June 30, 1996, through the date hereof, GW has not offered any
extraordinary rebates, discounts, or any other promotion or marketing incentives
relating to the Products other than in the ordinary course of its business
4.02 REPRESENTATIONS AND WARRANTIES OF MONARCH.
Monarch represents and warrants to GW as follows:
(a) ORGANIZATION AND STANDING. Monarch is a corporation duly organized,
validly existing and in good standing under the laws of the State of Tennessee.
(b) POWER AND AUTHORITY. Monarch has all requisite corporate power and
authority to execute, deliver, and perform this Agreement, and the other
agreements and instruments to be executed and delivered by it pursuant hereto
and to consummate the transactions contemplated herein and therein. The
execution, delivery, and performance of this Agreement by Monarch do not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of Monarch's Articles of Incorporation, Bylaws, any law or regulation
applicable to Monarch, or any agreement, mortgage, lease, instrument, order,
judgment, or decree to which Monarch is a party or by which Monarch is bound.
(c) CORPORATE ACTION; BINDING EFFECT. Monarch has duly and properly
taken all action required by law, its Articles of Incorporation, its Bylaws, or
otherwise, to authorize the execution, delivery, and performance by it of this
Agreement, the Note, the Security Agreement, the Collateral Agreements, and the
other instruments to be executed by it pursuant hereto and the consummation of
the transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by Monarch and constitutes, and the Collateral
Agreements, and the other instruments contemplated hereby when duly executed and
delivered by Monarch will
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constitute, legal, valid, and binding obligations of Monarch enforceable against
it in accordance with their respective terms, except as enforcement may be
affected by bankruptcy, insolvency, or other similar laws and by general
principles of equity.
(d) ACCESS TO INFORMATION. After the Closing, Monarch agrees to
cooperate with GW and to grant to GW and its employees, attorneys, accountants,
officers, representatives, and agents, during normal business hours and upon ten
(10) days' advance notice, reasonable access to Monarch's management personnel
and to the records relating to the Products (including, without limitation, the
NDAs) and to permit copying at GW's expense or, where reasonably necessary, to
loan original documents relating to the Assets during the period the Assets were
owned by GW for the sole purposes of (i) any financial reporting or tax matters
(including, without limitation, any financial and tax audits, tax contests, tax
examination, preparation of any GW tax returns or financial records) relating to
the Products; (ii) any claims or litigation involving GW and the Assets relating
to the Products; (iii) any investigation of GW being conducted by any federal,
state, or local governmental authority relating to the Products; (iv) any matter
relating to any indemnification or representation or warranty or any other term
of this Agreement, or (v) any similar or related matter. Monarch shall maintain
all such records and documents in the United States and shall not destroy or
dispose of any such records and documents without the prior written consent of
GW. GW shall use its reasonable efforts to ensure that its access to and
requests for records and documents pursuant to this Section are conducted so as
not to interfere with the nommal and ordinary operation of Monarch's business.
GW acknowledges that the records and documents made available to GW by Monarch
pursuant to this Section constitute Confidential Information (as defined in the
Supply Agreement) of Monarch and disclosure of such information shall be
governed by the Supply Agreement.
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(e) Consents. No consent or approval of, or filing with or notice to,
any federal, state, or local governmental or regulatory authority, agency, or
department or any other person not a party to this Agreement is required or
necessary to be obtained by Monarch or on its behalf in connection with the
execution, delivery, and performance of this Agreement or to consummate the
transactions contemplated hereby, except as contemplated by Section 3.01 hereof.
4.03 SURVIVAL OF REPRESENTATIONS WARRANTIES.
The representations, warranties, and indemnities of the parties hereto
contained in this Article 4 and in Article 5 shall survive the Closing Date for
a period equal to three (3) years, except that Section 4.01(e) (Ownership of
Assets) and the indemnification with respect thereto shall survive the Closing
Date for a period equal to five (5) years.
4.04 CERTAIN LIMITATIONS.
GW does not make any representation or warranty as to the business
prospects of the Products. Monarch has conducted its own review and analysis, as
it deemed necessary and appropriate, of the business prospects of the Products
and is not relying on any representations or warranties from GW as to the
business prospects.
ARTICLE 5
INDEMNIFICATION
5.01 INDEMNIFICATION BY GW.
(a) GW hereby indemnifies, defends, and holds harmless Monarch from and
against any and all damage, loss, liability, and expense (including, without
limitation, reasonable attorneys' fees and expenses) (collectively, "Indemnified
Amounts") arising out of any misrepresentation or breach of warranty, covenant,
or agreement made or to be performed by GW pursuant to this Agreement or the
Collateral Agreements; provided, however, that GW shall not have any
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obligation to indemnify Monarch from and against any Indemnified Amounts: (i)
until Monarch has incurred Indemnified Amounts in excess of a Fifty Thousand
Dollar ($50,000) deductible (after which point GW will be obligated only to
indemnify Monarch from and against further such Indemnified Amounts) or
thereafter (ii) to the extent the Indemnified Amounts Monarch has incurred
exceed a Six Million Nine Hundred Fifty Thousand Dollar ($6,950,000) aggregate
ceiling (after which point GW will have no obligation to indemnify Monarch from
and against further such Indemnified Amounts).
(b) GW shall not be liable under this Section 5.01 for any settlement
effected without its consent of any claim, litigation, or proceeding in respect
of which indemnity may be sought hereunder, which consent shall not unreasonably
be withheld.
5.02 INDEMNIFICATION BY MONARCH.
(a) Monarch hereby indemnifies, defends, and holds harmless GW from and
against any and all Indemnified Amounts arising out of any misrepresentation or
breach of warranty, covenant, or agreement made or to be performed by Monarch
pursuant to this Agreement or the Collateral Agreements; provided, however, that
Monarch shall not have any obligation to indemnify GW from and against any
Indemnified Amounts until GW has incurred Indemnified Amounts in excess of a
Fifty Thousand Dollar ($50,000) deductible (after which point Monarch will be
obligated only to indemnify GW from and against further such Indemnified
Amounts).
(b) Monarch shall not be liable under this Section 5.02 for any
settlement effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought, which consent shall not
unreasonably be withheld.
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5.03 PAYMENTS.
All amounts payable under this Article 5 shall be paid promptly after
receipt by the indemnifying party of written notice from the indemnified party
stating that such Indemnified Amounts have been incurred, the amount thereof and
of the related indemnity payment and substantiation of such amount and such
indemnity payment; provided, however, any disputed amounts shall be due and
payable promptly after such amounts are finally determined to be owing by the
indemnifying party to the indemnified party.
5.04 CONDUCT OF LITIGATION.
Each party indemnified under the provisions of this Agreement, upon
receipt of written notice of any claim or the service of a summons or other
initial legal process upon it in any action instituted against it, in respect of
the agreements contained in this Agreement, shall promptly give written notice
of such claim, or the commencement of such action, or threat thereof, to the
party from whom indemnity shall be sought hereunder; provided, however, the
failure to provide such notice within a reasonable period of time shall not
relieve the indemnifying party of any of its obligations hereunder except to the
extent the indemnifying party is prejudiced by such failure. Each indemnifying
party shall be entitled at its own expense to participate in the defense of such
claim or action, or, if it shall elect, to assume such defense, in which event
such defense shall be conducted by counsel chosen by such indemnifying party,
which counsel may be any counsel reasonably satisfactory to the indemnified
party against whom such claim is asserted or who shall be the defendant in such
action, and such indemnified party shall bear all fees and expenses of any
additional counsel retained by it or them. Notwithstanding the immediately
preceding sentence, if the named parties in such action (including impleaded
parties) include the indemnified and the indemnifying parties, and the
indemnified party shall have been advised by counsel that there may
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be a conflict between the positions of the indemnifying party and the
indemnified party in conducting the defense of such action or that there are
legal defenses available to such indemnified party different from or in addition
to those available to the indemnifying party, then counsel for the indemnified
party shall be entitled, if the indemnified party so elects, to conduct the
defense to the extent reasonably determined by such counsel to be necessary to
protect the interests of the indemnified party, at the expense of the
indemnifying party, if it is determined by agreement of the indemnifying party
and the indemnified party or by a court of competent jurisdiction that the
indemnified party is entitled to indemnification hereunder for the Indemnified
Amounts giving rise to such action. If the indemnifying party shall elect not to
assume the defense of such claim or action, such indemnifying party shall
reimburse such indemnified party for the reasonable fees and expenses of any
counsel retained by it, and shall be bound by the results obtained by the
indemnified party in respect of such claim or action if it is determined by
agreement of the indemnifying party and the indemnified party or by a court of
competent jurisdiction that the indemnified party is entitled to indemnification
hereunder for the Indemnified Amounts giving rise to such action; provided,
however, that no such claim or action shall be settled without the written
consent of the indemnifying party.
ARTICLE 6
MISCELLANEOUS
6.01 ENTIRE AGREEMENT.
This Agreement, the Note, the Security Agreement, and the Collateral
Agreements constitute the entire agreement between GW and Monarch with respect
to the subject matter hereof and thereof and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof. This Agreement or any
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provision hereof cannot be amended, changed, supplemented, or waived except in a
writing signed by each of the parties hereto.
6.02 COUNTERPARTS.
This Agreement and any amendment or supplement hereto may be executed
in several counterparts, each of which shall be deemed to be an original, and
all of which taken together shall constitute one and the same instrument.
6.03 BROKERAGE AND OTHER COMMISSIONS.
GW and Monarch each represent and warrant to the other that all
negotiations relative to this Agreement and the transactions contemplated hereby
have been carried on by each directly with the other without intervention of any
broker, finder, or other intermediary and that, subject to the provisions of
Article 5, each indemnifies the other and holds it harmless against any claim
against the other for brokerage or other commissions relating to this Agreement
or to the transactions contemplated hereby by any person claiming to have been
engaged as a broker or finder by the indemnifying party.
6.04 NOTICES.
All notices and other communications required or permitted under this
Agreement shall be in writing and shall be delivered personally or sent by: (A)
registered or certified mail, return receipt requested; (B) a
nationally-recognized courier service guaranteeing next-day delivery, charges
prepaid; or (C) facsimile (with the original promptly sent by any of the
foregoing manners). Any such notices shall be addressed to the receiving party
at such party's address set forth below, or at such other address as may from
time to time be furnished by similar notice by either party.
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If to GW:
Glaxo Wellcome Inc.
Five Xxxxx Xxxxx
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Company Secretary
Facsimile No.: 000-000-0000
If to Monarch:
Monarch Pharmaceuticals, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
With a copy to:
King Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
Facsimile No.: 000-000-0000
Any such notice or communication shall be effective upon such personal
delivery or delivery to such courier, upon transmission by facsimile, or three
(3) days after it is sent by such registered or certified mail, as the case may
be. Copies shall be sent in the same manner as originals.
6.05 ASSIGNMENT.
Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party; provided, however, that
either party may assign its rights and obligations under this Agreement, without
the prior written consent of the other party, to an Affiliate or to a successor
of the assigning party's business by reason of merger, sale of all or
substantially all of its assets or similar transaction, provided that such
successor agrees in writing
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to be bound by this Agreement. Such consent shall not be unreasonably withheld.
Any purported assignment without a required consent shall be void. Any permitted
assignee shall assume all obligations of its assignor under this Agreement. No
assignment shall relieve either party of its responsibility for the performance
of any obligation which accrued prior to the effective date of such assignment.
For the avoidance of doubt, the parties acknowledge that no consent of GW shall
be required for the sale by Monarch of the Assets.
6.06 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED IN ALL RESPECTS UNDER
AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
6.07 HEADINGS.
The table of contents and all headings used in this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
6.08 EXPENSES.
All legal and other costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
6.09 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns.
6.10 AGREEMENT TO TAKE NECESSARY AND DESIRABLE ACTIONS.
GW and Monarch each agree to execute and deliver such other documents,
certificates, agreements, and other writings and to take such other actions as
may be reasonably necessary in
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order to consummate or implement expeditiously the transactions contemplated by
this Agreement.
6.11 NO IMPLIED WAIVER.
No failure or delay on the part of the parties hereto to exercise any
right, power, or privilege hereunder or under any instrument executed pursuant
hereto shall operate as a waiver; nor shall any single or partial exercise of
any right, power, or privilege preclude any other or further exercise thereof or
the exercise of any other right, power, or privilege. All rights and remedies
granted herein shall be cumulative and in addition to other rights and remedies
to which the parties may be entitled at law or in equity.
6.12 FORCE MAJEURE.
Any delay in the performance of any of the obligations of either party
hereto (except the payment of money owed) shall not be considered a breach of
this Agreement and the time required for performance shall be extended for a
period equal to the period of such delay, provided that such delay is due to:
acts of God, weather, fire, explosion; invasion, riot or other civil unrest;
governmental laws, orders, restrictions, actions, embargoes or blockades;
national or regional emergency, injunction, strikes, lock-outs, labor trouble or
other industrial disturbances; inability to obtain or interruption of materials,
labor, containers, fuel or transportation; or any other cause beyond the control
of the affected party. The party so affected shall give prompt notice to the
other party of such cause and shall use its reasonable efforts to relieve the
effect of such cause as rapidly as possible.
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6.13 CONFIDENTIALITY
GW and Monarch have entered into a Confidential Disclosure Agreement
dated as of May 30, 1996 and a Confidential Disclosure Agreement dated November
3, 1997 (collectively the "Disclosure Agreement").
6.14 RELATIONSHIP.
Nothing in this Agreement shall be deemed to create an agency, joint
venture, amalgamation, partnership, or similar relationship between Monarch and
GW.
6.15 SEVERABILITY.
In case any provision of this Agreement shall be held to be invalid,
illegal, or unenforceable, the validity, legality, or enforceability of the
remaining provisions hereof will not in any way be affected or impaired thereby.
6.16 PRESS RELEASE.
On the Closing Date, the parties shall issue a joint press release
regarding the sale of the Assets, and GW shall, in cooperation with Monarch,
inform any customer who places a purchase order with GW for the Products that
the Assets have been sold to Monarch. As soon as practicable after the Closing,
GW shall send to all of its current wholesalers and distributors a letter, in
form and substance mutually agreeable to GW and Monarch, on GW letterhead
informing them of the sale of the Assets to Monarch.
6.17 AFFILIATES.
As used in this Agreement, "Affiliate" shall mean any corporation or
non-corporate entity that controls, is controlled by, or is under common control
with the party. A corporation or non-corporate entity shall be regarded as in
control of another corporation if it owns or directly or indirectly controls at
least fifty percent (50%) of the voting stock of the other corporation or (A)
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in the absence of the ownership of at least of fifty percent (50%) of the voting
stock of a corporation or (b) in the case of a non-corporate entity, the power
to direct or cause the direction of the management and policies of such
corporation or non-corporate entity, as applicable.
6.18 WAIVER OF BULK SALES.
GW and Monarch waive compliance with any bulk sales law or similar law
in connection with the consummation of the transactions contemplated herein.
6.19 EXHIBITS AND SCHEDULES.
All Exhibits and Schedules referred to herein form an integral part of
this Agreement and are incorporated into this Agreement by reference.
6.20 GUARANTY.
King Pharmaceuticals, Inc., a Tennessee corporation ("King"),
irrevocably and unconditionally guarantees the full and punctual performance of
all of the obligations of Monarch (or any Affiliate to whom Monarch assigns any
right or obligation under this Agreement) contained in or arising out of this
Agreement, the Note, and the Security Agreement, including, but not limited to,
payment when due of all amounts owed by Monarch to GW hereunder and thereunder.
This is a guaranty of payment and performance and not of collection.
King consents and agrees that, without the necessity of any reservation
of rights against it, the whole or any part of the security now or hereafter
held for the Note may be exchanged, compromised, or surrendered from time to
time, the time or place of payment of the Note or of any security therefor may
from time to time be extended, in whole or in part, to a time certain or
otherwise, and may be renewed, in whole or in part; Monarch may be granted
indulgences generally; and any of the provisions of this Agreement, the Note, or
the Security Agreement may be modified or waived, all without notice to or
further assent by King, who shall remain bound,
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notwithstanding any such exchange, compromise, surrender, extension, renewal,
modification, indulgence, or release.
King expressly waives: (a) presentment and demand for payment of the
Note or of payment or performance under this Agreement or the Security
Agreement; (b) protest and notice of dishonor or of default to King or to any
other party with respect to the Note or with respect to any security therefor;
(c) any diligence in collecting the Note or this guaranty or protecting or
realizing upon any security therefor; (d) any duty or obligation on the part of
GW to ascertain the validity, extent, or nature of any security for the Note, or
any insurance or other rights respecting such security, or the liability of any
party primarily or secondarily liable for payment of the Note or liable upon any
security therefor, or to take any steps or action to safeguard, protect, handle,
obtain, or convey information respecting, or otherwise follow in any manner, any
such security, insurance, or other rights; (e) any duty or obligation on GW to
proceed to collect payment of the Note from, or to commence an action against,
Monarch or any other person, or to resort to any security despite any notice or
request of King to do so; (f) any rights of King pursuant to North Carolina
General Statute Chapter 26 or any similar or subsequent law; (g) all other
notices to which King might otherwise be entitled; (h) any defense relative to
the financial condition of Monarch; and (i) demand for payment or performance
under this guaranty.
Until all obligations of Monarch under this Agreement, the Note, and
the Security Agreement shall have been fully paid to GW or otherwise performed,
King shall not be released by any act or thing which might, but for this
provision, be deemed a legal or equitable discharge of a surety, or by reason of
any waiver, extension, modification, forbearance or delay or other act or
omission of GW or its failure to proceed promptly or otherwise, or by reason of
any action taken or omitted or circumstance which may or might vary the risk or
affect the rights or remedies
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of King, or by reason of any further dealings between Monarch and King, and King
hereby expressly waives and surrenders any defense to its liability hereunder
based upon any of the forgoing acts, omissions, agreements, or waivers; it being
the purpose and intent of King and GW that the obligations of King hereunder are
absolute and unconditional under any and all circumstances. Upon the payment of
all such obligations, GW agrees to take such action as may be required by the
Security Agreement.
This guaranty shall continue to be effective, or be reinstated, as the
case may be, if at any time payment of any of the obligations under the Note or
any security therefor, or any part thereof, is rescinded or must otherwise be
restored or returned by GW upon the insolvency, bankruptcy, dissolution,
liquidation, or reorganization of Monarch, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, Monarch or any substantial part of its property, or otherwise, all
as though such payments had not been made.
King is executing this Agreement for the sole purpose of agreeing to
its guaranty obligations set forth in this Section 6.20. Monarch and King
represent and warrant to GW that Monarch is a wholly-owned subsidiary of King.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
GLAXO WELLCOME INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
MONARCH PHARMACEUTICALS, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: Authorized Agent
--------------------------------
KING PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
---------------------------------
Title: President
--------------------------------
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