EXECUTION COPY
EXHIBIT 4.31
PURCHASE AND SALE AGREEMENT
(OCS)
AMONG
PFIZER INC.,
XXXXX (CHEMICALS) LIMITED
AND
XXXXX HOLDINGS PLC
DATED AS OF MARCH 5, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND TERMS....................................................... 1
Section 1.1 Definitions............................................................. 1
Section 1.2 Other Definitional Provisions........................................... 8
ARTICLE II PURCHASE AND SALE........................................................... 9
Section 2.1 Purchase and Sale of the Purchased Assets............................... 9
Section 2.2 Consents................................................................ 10
Section 2.3 Excluded Assets......................................................... 10
Section 2.4 Assumption of Certain Liabilities....................................... 10
Section 2.5 Retained Liabilities.................................................... 11
Section 2.6 Purchase Price; Additional Purchase Payments............................ 13
Section 2.7 Allocation of the Purchase Price........................................ 15
Section 2.8 Risk of Loss............................................................ 15
Section 2.9 Adjustment of the Purchase Price........................................ 15
ARTICLE III CLOSING..................................................................... 16
Section 3.1 Closing................................................................. 16
ARTICLE IV CONDITIONS TO CLOSING....................................................... 16
Section 4.1 Conditions to the Obligations of Purchaser and Pfizer................... 16
Section 4.2 Conditions to the Obligations of Purchaser.............................. 17
Section 4.3 Conditions to the Obligations of Pfizer................................. 17
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PFIZER.................................... 18
Section 5.1 Organization............................................................ 18
Section 5.2 Authority; Binding Effect............................................... 18
Section 5.3 Non-Contravention....................................................... 19
Section 5.4 Governmental Consents................................................... 19
Section 5.5 No Litigation........................................................... 19
Section 5.6 Compliance with Laws.................................................... 20
Section 5.7 Product Registrations................................................... 20
Section 5.8 Material Contracts...................................................... 20
Section 5.9 Intellectual Property; Know-how......................................... 21
Section 5.10 Assets.................................................................. 22
Section 5.11 Brokers................................................................. 22
Section 5.12 Statements of Net Sales and Product Contribution........................ 22
Section 5.13 Medical Information..................................................... 22
Section 5.14 Domain Names and Websites............................................... 23
Section 5.15 Inventory............................................................... 23
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT...................... 23
Section 6.1 Organization and Qualification.......................................... 23
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TABLE OF CONTENTS
(CONTINUED)
Section 6.2 Corporate Authorization................................................. 23
Section 6.3 Binding Effect.......................................................... 23
Section 6.4 Non-Contravention....................................................... 24
Section 6.5 Governmental Consents................................................... 24
Section 6.6 Financial Resources..................................................... 24
Section 6.7 Condition of the Purchased Assets....................................... 25
Section 6.8 Brokers................................................................. 25
Section 6.9 Voting Requirement...................................................... 25
ARTICLE VII COVENANTS................................................................... 25
Section 7.1 Information and Documents............................................... 25
Section 7.2 Interim Operations Relating to the Products............................. 26
Section 7.3 Reasonable Best Efforts; Certain Governmental Matters................... 27
Section 7.4 Transitional Services Agreement......................................... 28
Section 7.5 Transitional Intellectual Property License Agreement.................... 29
Section 7.6 Transitional Supply Agreement........................................... 29
Section 7.7 Litigation Support...................................................... 29
Section 7.8 Notifications........................................................... 29
Section 7.9 Post-Closing Cooperation................................................ 30
Section 7.10 Right of First Refusal on the Fajardo Plant............................. 30
Section 7.11 Confidentiality......................................................... 31
Section 7.12 Parent Shareholder Approval............................................. 31
Section 7.13 Transfer of Regulatory Approvals........................................ 32
Section 7.14 Certain Patents......................................................... 33
ARTICLE VIII INDEMNIFICATION............................................................. 33
Section 8.1 Indemnification by Pfizer............................................... 33
Section 8.2 Indemnification by Parent............................................... 33
Section 8.3 Notice of Claims........................................................ 34
Section 8.4 Third Party Claims...................................................... 34
Section 8.5 Expiration.............................................................. 35
Section 8.6 Certain Limitations..................................................... 35
Section 8.7 Losses Net of Insurance, Etc............................................ 35
Section 8.8 Sole Remedy/Waiver...................................................... 36
Section 8.9 No Consequential Damages................................................ 36
ARTICLE IX TERMINATION................................................................. 36
Section 9.1 Termination............................................................. 36
Section 9.2 Effect of Termination................................................... 37
ARTICLE X MISCELLANEOUS............................................................... 38
Section 10.1 Notices................................................................. 38
Section 10.2 Amendment; Waiver....................................................... 39
Section 10.3 Assignment.............................................................. 40
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TABLE OF CONTENTS
(CONTINUED)
Section 10.4 Entire Agreement........................................................ 40
Section 10.5 Fulfillment of Obligations.............................................. 40
Section 10.6 Parties in Interest..................................................... 40
Section 10.7 Public Disclosure....................................................... 40
Section 10.8 Return of Information................................................... 40
Section 10.9 Expenses................................................................ 41
Section 10.10 Schedules............................................................... 41
Section 10.11 Governing Law; Jurisdiction............................................. 41
Section 10.12 Counterparts............................................................ 42
Section 10.13 Headings................................................................ 42
Section 10.14 Severability............................................................ 42
Section 10.15 Guarantee of Parent..................................................... 42
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TABLE OF CONTENTS
(CONTINUED)
LIST OF SCHEDULES
A Certain Trademarks
B Product in Development
1.1(A) Asset Selling Corporations
1.1(B) Historic Gross Profit Percentage
1.1(C) Knowledge of Pfizer
2.1(a)(i) Patents
2.1(a)(iii) Assumed Contracts
2.1(a)(ix) Domain Names and Websites
2.1(a)(x) Governmental Authorizations
2.9 Months of Supply
2.9(b) Adjustment of the Purchase Price
5.5 No Litigation
5.6 Compliance with Laws
5.7 Product Registrations
5.8(a) Material Contracts
5.8(c) Managed Care Agreements
5.9(b) Intellectual Property
5.9(c) Infringement
5.10 Assets
5.12 Statements of Net Sales and Product Contribution
5.15 Inventory
7.2 Interim Operations
LIST OF EXHIBITS
A. List of instruments and documents to be provided by Pfizer to Purchaser
B. List of instruments and documents to be provided by Purchaser to Pfizer
C. Form of Transitional Services Agreement (OCs)
D. Form of Transitional Intellectual Property License Agreement (OCs)
E. Form of Transitional Supply Agreement
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PURCHASE AND SALE AGREEMENT (OCS)
This Purchase and Sale Agreement (OCs) (this "AGREEMENT") is
made and entered into as of this 5th day of March, 2003 among Pfizer Inc., a
Delaware corporation ("PFIZER"), Xxxxx (Chemicals) Limited, an Irish corporation
("PURCHASER"), and Xxxxx Holdings plc, a public limited company organized under
the Laws of Northern Ireland ("PARENT").
W I T N E S S E T H:
WHEREAS, Pfizer, through certain of its Subsidiaries, is
engaged in selling, promoting and marketing certain oral contraceptive products
under the Estrostep(R) and Loestrin(R) trademarks set forth on Schedule A and is
developing for commercialization a certain low-dose oral contraceptive product
set forth on Schedule B (collectively, the "PRODUCTS");
WHEREAS, the Asset Selling Corporations own the Purchased
Assets; and
WHEREAS, the parties hereto desire that, at the Closing,
Pfizer shall cause the Asset Selling Corporations to sell and transfer to
Purchaser, and Purchaser shall purchase from the Asset Selling Corporations, all
of the Purchased Assets and assume all of the Assumed Liabilities, upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the meanings set forth or as referenced below:
"ADDITIONAL PAYMENTS" shall have the meaning set forth in
Section 2.6(b)(i).
"ADJUSTED PURCHASE PRICE" shall have the meaning set forth in
Section 2.9(d).
"AFFILIATE" 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 at any
time during the period for which the determination of affiliation is being made.
"AGREEMENT" shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the terms hereof.
"ALLOCATION" shall have the meaning set forth in Section 2.7.
"ANCILLARY AGREEMENTS" shall mean the Transitional
Intellectual Property License Agreement, the Transitional Services Agreement and
the Transitional Supply Agreement.
"ANDA" shall mean an Abbreviated New Drug Application
submitted to the FDA for approval of a generic drug product.
"APPLICABLE AVERAGE DAILY SALES", with respect to either
Product, shall mean (a) the aggregate dollar amount of gross sales of the
Product for the period from and including February 1, 2003 to and including the
Closing Date divided by (b) the number of days in such period.
"ASSET SELLING CORPORATIONS" shall mean the Persons set forth
on Schedule 1.1(A).
"ASSUMED CONTRACTS" shall have the meaning set forth in
Section 2.1(a)(iii).
"ASSUMED LIABILITIES" shall have the meaning set forth in
Section 2.4.
"XXXX" shall have the meaning set forth in Section 2.6(b)(ii).
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a day on which banks in New York, New York, United States of America
are authorized or obligated by Law or executive order to close.
"CALCULATION DATE" shall have the meaning set forth in Section
2.9(a).
"CLOSING" shall mean the closing of the transactions
contemplated by this Agreement pursuant to the terms of this Agreement.
"CLOSING DATE" shall have the meaning set forth in Section
3.1(a).
"COLLATERAL SOURCE" shall have the meaning set forth in
Section 8.7.
"COMPETING DRUG" shall have the meaning set forth in Section
2.6(b)(i).
"COMPETITION LAWS" shall mean statutes, rules, regulations,
orders, decrees, administrative and judicial doctrines and other Laws that are
designed or intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization, lessening of competition or restraint of
trade.
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"CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality
Agreement, dated as of August 13, 2002, between Pfizer and Parent relating to
certain products, including the Products.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 7.11(a).
"DAILY SALES ADJUSTMENT AMOUNT" shall have the meaning set
forth in Section 2.9(c).
"EXCLUDED ASSETS" shall have the meaning set forth in Section
2.3.
"EXCLUSIVITY PERIOD" shall have the meaning set forth in
Section 2.6(b)(i).
"FAJARDO NOTICE" shall have the meaning set forth in Section
7.10.
"FAJARDO PLANT" shall mean the manufacturing and packaging
facility and equipment located in Fajardo, Puerto Rico used to manufacture the
Products.
"FDA" shall mean the United States Food and Drug
Administration.
"FDCA" shall mean the Federal Food, Drug and Cosmetic Act of
1938, as amended.
"FTC" shall mean the United States Federal Trade Commission.
"GOVERNMENTAL ANTITRUST ENTITY" shall have the meaning set
forth in Section 7.3(c).
"GOVERNMENTAL AUTHORITY" shall mean any supranational,
national, federal, state or local judicial, legislative, executive or regulatory
authority.
"GOVERNMENTAL AUTHORIZATIONS" shall mean all INDs, NDAs,
licenses, permits, certificates and other authorizations and approvals required
to carry on the sale and marketing of the Products as conducted as of the date
of this Agreement under the applicable Laws of any Governmental Authority.
"GOVERNMENTAL ORDER" shall mean any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"HISTORIC AVERAGE DAILY SALES", with respect to Loestrin(R),
shall mean $296,790; and with respect to Estrostep(R), shall mean $190,558.
"HISTORIC GROSS PROFIT PERCENTAGE", with respect to each
Product, shall mean the historic gross profit percentage for such Product as set
forth on Schedule 1.1(B).
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"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"IMS" shall have the meaning set forth in Section 2.9(a).
"IND" shall mean an Investigational New Drug exemption filed
with the FDA relating solely to the Products.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 8.3.
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 8.3.
"INTELLECTUAL PROPERTY" shall mean the copyrights, Patents,
trademarks, service marks, trade names, trade dress, labels, logos and all other
names and slogans, whether or not registered, and any other applications and
registrations therefor, in each case relating solely to the Products.
"INVENTORIES" shall mean all inventory of finished goods
relating solely to the Products.
"KNOW-HOW" shall mean all ideas, inventions, data,
instructions, secrets, processes, master batch records, drug master files,
formulas, formulation information, validations, validation protocols, package
specifications, chemical specifications, chemical and finished goods analytical
test methods, stability data, testing data, product specifications, information
with respect to expert opinion and information (whether or not patented or
patentable) and technology owned, licensed or controlled by any of the Asset
Selling Corporations or under which any of the Asset Selling Corporations has
the right to grant sublicenses, as of the date of this Agreement, all of the
foregoing only to the extent relating solely to the Products, including all
biological, chemical, pharmacological, toxicological, pharmaceutical, physical
and analytical, clinical, safety, manufacturing and quality control data and
information related thereto and all correspondence with the FDA or other similar
Governmental Authority and all other documents pertaining to communications with
the FDA or other similar Governmental Authority (including minutes of any FDA
communications and applications for any regulatory approval of the Products, if
any).
"KNOWLEDGE OF PFIZER" shall mean the actual knowledge of any
of the individuals set forth on Schedule 1.1(C).
"LAUNCH DATE" shall have the meaning set forth in Section
2.6(b)(i).
"LAW" shall mean any federal, state, foreign or local law,
common law, statute, ordinance, rule, regulation, code or Governmental Order.
"LIABILITIES" shall mean any debts, liabilities or
obligations, whether accrued or fixed, known or unknown, absolute or contingent,
matured or unmatured or determined or determinable.
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"LIEN" shall mean any lien, security interest, mortgage,
charge or similar encumbrance.
"LOSS" or "LOSSES" shall have the meaning set forth in Section
8.1(a).
"MANAGED CARE AGREEMENTS" shall have the meaning set forth in
Section 5.8(c).
"MANUFACTURING AGREEMENT" shall mean that certain
Manufacturing Agreement, dated as of September 24, 1997, between Duramed
Pharmaceuticals, Inc., an Ohio corporation, and Xxxxxx Xxxxxxx.
"MATERIAL ADVERSE EFFECT" shall mean any change or effect that
is, or is reasonably likely to be, materially adverse to the Products, taken as
a whole, or the assets, revenues or profits relating to the Products, taken as a
whole, or the manufacture, distribution or sale of the Products, taken as a
whole, other than any change, effect, event, circumstance or occurrence relating
to (a) the economy or financial markets in general, (b) conditions affecting the
industries in which the Products participate generally, provided that the
Products, taken as a whole, are not materially disproportionately affected as
compared to other Persons engaged in such industry by such change, effect,
event, circumstance or occurrence, (c) the transactions contemplated by this
Agreement, (d) actions required to be taken by applicable Law, (e) acts of
terrorism or war (whether or not threatened, pending or declared), (f) the
public announcement of this Agreement or the transactions contemplated hereby,
(g) the declining sales of the Products due to competition, (h) the lack of
marketing of the Products and (i) the refusal of Parent to provide its consent
under Section 7.2 if Parent acted unreasonably in withholding its consent.
"MATERIAL CONTRACTS" shall have the meaning set forth in
Section 5.8(b).
"MONTHS OF SUPPLY" shall have the meaning set forth in Section
2.9(a).
"NDA" shall mean a New Drug Application filed with the FDA
relating solely to any of the Products requesting permission to place a drug on
the market in accordance with 21 C.F.R. Part 314 and all supplements filed
pursuant to the requirements of the FDA, including all documents, data and other
information concerning any such Product that are necessary for FDA approval to
market any such Product in the United States of America.
"NEGOTIATION PERIOD" shall have the meaning set forth in
Section 7.10.
"PARENT" shall have the meaning set forth in the preamble to
this Agreement.
"PARENT ADVERSE RECOMMENDATION CHANGE" shall have the meaning
set forth in Section 7.12(a).
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"PARENT CIRCULAR" shall have the meaning set forth in Section
7.12(b)(i).
"PARENT SHAREHOLDER APPROVAL" shall have the meaning set forth
in Section 6.9.
"PATENTS" shall mean all patents and patent applications and
all additions, divisions, continuations, continuations-in-part, substitutions,
reissues, extensions, registrations and renewals of any of the foregoing.
"PERMITTED ENCUMBRANCES" shall mean (a) all Liens approved in
writing by Purchaser; (b) statutory Liens arising out of operation of Law with
respect to a Liability incurred in the ordinary course of the sale and marketing
of the Products and that are not delinquent, including mechanics',
materialmens', carriers', workmens', warehousemens', repairmens', landlords' or
other like Liens and security obligations; (c) such Liens and other
imperfections of title as do not materially detract from the value or impair the
use of the property subject thereto or make such property unmarketable or (d)
Liens for Taxes that are not yet delinquent or that are being actively contested
in good faith by appropriate proceedings.
"PERSON" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture, Governmental
Authority or other entity or organization.
"PFIZER" shall have the meaning set forth in the preamble to
this Agreement.
"PFIZER REIMBURSABLE FEES" shall have the meaning set forth in
Section 9.2(c).
"PROCEEDING" shall have the meaning set forth in Section
10.11(b).
"PRODUCT CLAIM" shall mean a claim from a third party for
money or other compensation (beyond the cost of a particular Product) in respect
of potential or actual injury or harm allegedly due and owing as a result of the
use, application or defect of any of the Products or labeling of any of the
Products, in each case irrespective of the legal theory of liability.
"PRODUCT REGISTRATIONS" shall have the meaning set forth in
Section 5.7(a).
"PRODUCTS" shall have the meaning set forth in the recitals to
this Agreement.
"PURCHASED ASSETS" shall have the meaning set forth in Section
2.1(a), it being understood that the Purchased Assets do not include the
Excluded Assets.
"PURCHASE PRICE" shall have the meaning set forth in Section
2.6(a).
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"PURCHASER" shall have the meaning set forth in the preamble
to this Agreement.
"PURCHASER MATERIAL ADVERSE EFFECT" shall have the meaning set
forth in Section 6.4.
"REBATES" shall mean all rebates to all United States federal
and state rebate programs and local governmental programs and to pharmacy
benefit management companies, health plans, insurance companies, mail service
pharmacies and other health care providers based upon the utilization of any of
the Products. For purposes of this Agreement, a Rebate in respect of any of the
Products shall be deemed to have occurred in the calendar quarter in which the
pharmacy or other applicable entity dispensed any of the Products to the
end-user.
"RETAINED LIABILITIES" shall have the meaning set forth in
Section 2.5.
"RIGHT OF FIRST REFUSAL" shall have the meaning set forth in
Section 7.10.
"SELLER CORPORATIONS" shall mean Pfizer and the Asset Selling
Corporations.
"SHAREHOLDERS' MEETING" shall have the meaning set forth in
Section 7.12(b)(ii).
"SHIPPED PRODUCTS" shall have the meaning set forth in Section
2.5(a).
"STATEMENTS OF NET SALES AND PRODUCT CONTRIBUTION" shall have
the meaning set forth in Section 5.12.
"SUBSIDIARY" shall mean any Person as to which Pfizer,
Purchaser, Parent or any other relevant Person, as the case may be, owns
directly or indirectly 50% or more of the voting power or other similar
interests.
"SUPPLY NOTICE" shall have the meaning set forth in Section
2.9(a).
"TAXES" shall mean any and all taxes, levies or other like
assessments, including income, transfer, gains, gross receipts, excise, property
(real, personal or intangible), sales, use, withholding, payroll, employment,
capital stock and franchise taxes, imposed by a Governmental Authority.
"TERMINATION DATE" shall have the meaning set forth in Section
9.1(b).
"TERMINATION FEE" shall have the meaning set forth in Section
9.2(b).
"THIRD PARTY CLAIM" shall have the meaning set forth in
Section 8.4(a).
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"TRANSITIONAL INTELLECTUAL PROPERTY LICENSE AGREEMENT" shall
have the meaning set forth in Section 7.5.
"TRANSITIONAL SERVICES AGREEMENT" shall have the meaning set
forth in Section 7.4.
"TRANSITIONAL SUPPLY AGREEMENT" shall have the meaning set
forth in Section 7.6.
"UKLA" shall have the meaning set forth in Section 7.12(b)(i).
"XXXXXX XXXXXXX" shall mean Xxxxxx-Xxxxxxx Company LLC, a
Delaware limited liability company.
"WITHDRAWAL DATE" shall have the meaning set forth in Section
2.6(b)(iii).
Section 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 definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms.
(c) The terms "DOLLARS" and "$" shall mean United States
dollars.
(d) The term "INCLUDING" shall mean "INCLUDING, WITHOUT
LIMITATION".
(e) When a reference is made in this Agreement to an
Article, a Section, Exhibit or Schedule, such reference shall be to an Article
of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
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ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Purchased Assets.
(a) Upon the terms and subject to the conditions set
forth herein, at the Closing, Pfizer shall cause the Asset Selling Corporations
to sell, convey, assign and transfer to Purchaser, and Purchaser shall purchase,
acquire and accept from the Asset Selling Corporations, free and clear of all
Liens, other than Permitted Encumbrances, all of the Asset Selling Corporations'
right, title and interest in the following assets, properties and rights owned
or held by the Asset Selling Corporations on the Closing Date (collectively, the
"PURCHASED ASSETS"):
(i) all the Intellectual Property, including (A) the
Patents set forth on Schedule 2.1(a)(i) and (B) the trademarks, trade
names and service marks set forth on Schedule A, together with the
goodwill associated therewith;
(ii) all Know-how (including all clinical data relating to
the Products);
(iii) subject to Section 2.2, all contracts, licenses,
agreements and commitments set forth on Schedule 2.1(a)(iii) (the
"ASSUMED CONTRACTS");
(iv) all Inventories;
(v) all customer and vendor lists relating to the
Products, provided that any information set forth in such lists that
does not relate to the Products will be redacted from such lists;
(vi) to the extent permitted by Law, all books and records
(including regulatory files) relating solely to the Products; provided,
however, that Pfizer may retain a copy of any such books and records to
the extent necessary for Tax, accounting, litigation or other valid
business purposes;
(vii) all rights under or pursuant to all representations,
warranties and guarantees or otherwise against manufacturers to the
extent (A) relating solely to the Products or the Purchased Assets and
(B) transferable;
(viii) all advertising, marketing, sales, product
literature, promotional materials and data and all training materials
in whatever medium (e.g., audio, visual, print or electronic), in each
case relating solely to the Products;
(ix) all domain names and websites set forth on Schedule
2.1(a)(ix); and
(x) all Governmental Authorizations set forth on Schedule
2.1(a)(x) to the extent transferable.
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(b) Pfizer or an Affiliate of Pfizer, as the case may be,
shall retain the right and title in and to any intellectual property or
know-how, as the case may be, that is not Intellectual Property or Know-how, as
the case may be, utilized in connection with the manufacturing, packaging,
testing, development, distribution, marketing, use or sale of any products of
Pfizer or an Affiliate of Pfizer, as the case may be, other than the Products,
and Purchaser shall be granted by Pfizer or an Affiliate of Pfizer, as the case
may be, a non-exclusive, perpetual, royalty-free, worldwide license to use such
intellectual property or know-how, as the case may be, solely with respect to
the Products or any line extensions of the Products.
Section 2.2 Consents.
(a) There shall be excluded from the transactions
contemplated by this Agreement any agreement, license or right which is not
assignable or transferable without the consent of any Person, other than Pfizer
or any of its Affiliates or Purchaser or any of its Affiliates, to the extent
that such consent shall not have been obtained prior to the Closing; provided,
however, that each of Pfizer and Purchaser shall have the continuing obligation
after the Closing to use its commercially reasonable efforts to endeavor to
obtain all necessary consents to the assignment thereof (provided that neither
Pfizer, Purchaser nor any of their respective Affiliates shall be required to
expend money, commence any litigation or offer or grant any accommodation
(financial or otherwise) to any third party) and, upon obtaining the requisite
third party consents thereto, such agreement, license or right, if otherwise
includable in the Purchased Assets, shall be transferred and assigned to
Purchaser hereunder.
(b) With respect to any agreement, license or right that
is not included in the Purchased Assets or assigned to Purchaser at the Closing
by reason of Section 2.2(a), after the Closing and until any requisite consent
is obtained and the foregoing sold and assigned to Purchaser, the parties hereto
shall cooperate with each other, upon written request, in endeavoring to obtain
for Purchaser, at no incremental cost to Pfizer or any of its Affiliates, to the
extent practicable, an arrangement which Purchaser reasonably shall desire
designed to provide for Purchaser the same net benefits thereof in some other
manner.
Section 2.3 Excluded Assets. Notwithstanding any provision in
this Agreement, Purchaser is not purchasing any of the following (the "EXCLUDED
ASSETS"):
(a) the corporate books and records of the Asset Selling
Corporations and the general account and books of original entry that comprise
the Asset Selling Corporations' permanent accounting or tax records; and
(b) the "Pfizer", "Xxxxx-Xxxxx" and "Xxxxxx Xxxxxxx"
names and logos.
Section 2.4 Assumption of Certain Liabilities. Upon the terms
and subject to the conditions of this Agreement, Purchaser agrees, effective at
the Closing,
10
except as set forth in Section 2.5, to assume all the following Liabilities of
the Seller Corporations (collectively, the "ASSUMED LIABILITIES"):
(a) all Liabilities arising out of or relating to any
Product Claim made after the Closing that results from the use or misuse of any
Products shipped to a third party prior to or after the Closing;
(b) all Liabilities for lawsuits commenced prior to or
after the Closing to the extent relating to the Intellectual Property, including
the litigation matters set forth as items 2 and 3 on Schedule 5.5;
(c) all Liabilities to customers under purchase orders
made in the ordinary course of the sale and marketing of the Products consistent
with past practice for Products that have not yet been shipped at the Closing;
(d) all Liabilities arising after the Closing under any
contracts, agreements, licenses or commitments that are assigned to Purchaser
pursuant to Section 2.1 or 2.2(a) at or after the Closing;
(e) all Liabilities arising out of or relating to (i) the
return of any of the Products after the Closing, (ii) any chargebacks relating
to any of the Products claimed to be due and owing after the Closing and (iii)
any Rebates occurring in the calendar quarters subsequent to the expiration of
the first full calendar quarter after the Closing and the related reporting
activities;
(f) all Liabilities for Taxes relating solely to the
Products with respect to the period on or after the Closing; and
(g) all other Liabilities relating solely to the Products
to the extent relating to any period on or after the Closing.
Section 2.5 Retained Liabilities. Notwithstanding any
provision in this Agreement to the contrary, Pfizer shall, or shall cause one of
the Asset Selling Corporations to, retain and be responsible for the following
(the "RETAINED LIABILITIES"):
(a) all Liabilities arising out of or relating to any
Product Claim pending as of the Closing that resulted from the use or misuse of
any Products manufactured by or on behalf of Pfizer or one of the Asset Selling
Corporations and shipped to a third party prior to the Closing (the "SHIPPED
PRODUCTS");
(b) all Liabilities arising out of or relating to (i) the
return after the Closing of any Shipped Products which returns are a result of
adulteration or misbranding (within the meaning of the FDCA or the rules and
regulations of the FDA promulgated thereunder) by Pfizer or one of the Asset
Selling Corporations, (ii) the return during the six month period after the
Closing of any Shipped Product that either has (A) expired, provided that
neither Pfizer nor any of its Affiliates shall be responsible for any such
11
Shipped Product having an expiration date greater than one year prior to the
date of return or (B) not expired, provided that neither Pfizer nor any of its
Affiliates shall be responsible for any such Shipped Product with an expiration
date greater than six months after the date of return (with all such returns for
which Pfizer has responsibility to be shipped at Pfizer's expense to Pfizer's
designated returned goods processing facility), (iii) any chargebacks relating
to any Shipped Products and (iv) any Rebates occurring until the expiration of
the first full calendar quarter after the Closing and the related reporting
activities;
(c) all Liabilities for Taxes relating to the Products
with respect to the period prior to the Closing;
(d) all Liabilities relating to employees of Pfizer or
any of its Affiliates;
(e) all Liabilities for which Pfizer expressly has
responsibility pursuant to the terms of this Agreement;
(f) all Liabilities relating to the Excluded Assets;
(g) all Liabilities to suppliers for raw materials,
intermediates, packaging and other supplies and services relating to the
manufacture of the Products;
(h) all Liabilities arising out of or relating to the
matter set forth as item 3 on Schedule 5.9(b);
(i) all Liabilities arising out of the loan guarantee
entered into by Xxxxxx Xxxxxxx in connection with the Manufacturing Agreement;
and
(j) all other Liabilities relating to the Products to the
extent relating to any period prior to the Closing.
Purchaser and Pfizer agree to reimburse one another, dollar for dollar, in the
event that (i) any of their or their respective Affiliate's customers offset,
against accounts payable by such customer to Pfizer or Purchaser or their
respective Affiliates, the cost of any Product returned by such customer or (ii)
Purchaser, Pfizer or any of their respective Affiliates are required to issue a
credit for the account of any customer for returns, in each case which are the
responsibility of the other party hereto pursuant to Sections 2.4(e) and 2.5(b).
Pfizer and Purchaser agree to, and to cause their respective Affiliates to,
provide notice to one another of any such offset or issuance of credit for which
such party or its Affiliate is entitled to be reimbursed pursuant to this
provision. Payment shall be made promptly following receipt of notice of any
such offset by or issuance of a credit to a customer (together with supporting
documentation). Pfizer and Purchaser shall, and Pfizer and Purchaser shall cause
their respective Affiliates to cooperate to, ensure that a customer does not
offset returns of any Product against both Pfizer (or any of its Affiliates) and
Purchaser (or any of its Affiliates).
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Section 2.6 Purchase Price; Additional Purchase Payments.
(a) Purchase Price. In consideration of the sale and
transfer of the Purchased Assets, Purchaser agrees to purchase from each of the
Asset Selling Corporations the Purchased Assets owned by such Asset Selling
Corporation for an aggregate amount equal to $197,000,000 (One Hundred and
Ninety-Seven Million Dollars) (the "PURCHASE PRICE"), allocated among each of
the Asset Selling Corporations as described in Section 2.7 and subject to
adjustment as described in Section 2.9.
(b) Additional Purchase Payments.
(i) Subject to the limitations set forth in the next
sentence, as further consideration of the sale and transfer of the
Purchased Assets, for the period commencing on the first day of the
third calendar quarter of 2004 and ending on the expiration of the
third calendar quarter of 2007 (the "EXCLUSIVITY PERIOD"), Purchaser
shall pay to Pfizer, as agent for the Asset Selling Corporations (or to
Pfizer's Affiliates as Pfizer may designate on behalf of the Asset
Selling Corporations), on the last Business Day of each calendar
quarter of the Exclusivity Period, $4,300,000 (except for any such
payment made on the last Business Day of the third calendar quarter of
2007, which payment shall be $3,800,000) (the "ADDITIONAL PAYMENTS")
(for an aggregate total payment of $55,400,000 for the entire
Exclusivity Period), by wire transfer in immediately available funds to
one or more accounts specified in writing by Pfizer at least two
Business Days prior to the last Business Day of such calendar quarter.
Notwithstanding the foregoing, but subject to Section 2.6(b)(iii),
Purchaser's obligation to make the Additional Payments shall terminate
on the first date (the "LAUNCH DATE") of commercial sales to
unaffiliated third parties by any Person (other than Purchaser or any
of its Affiliates) of a generic drug that is AB rated to Estrostep(R)(a
"COMPETING DRUG"); provided, however, that if the Launch Date occurs
during the Exclusivity Period, within two Business Days after the
Launch Date, Purchaser shall pay to Pfizer, as agent for the Asset
Selling Corporations (or to Pfizer's Affiliates as Pfizer may designate
on behalf of the Asset Selling Corporations), by wire transfer in
immediately available funds to one or more accounts specified in
writing by Pfizer, an amount equal to the product (rounded up to the
nearest whole cent) of (i) $4,300,000 (unless the Launch Date occurs
during the third calendar quarter of 2007, then $3,800,000) and (ii) a
fraction, (A) the numerator of which is equal to the number of days
elapsed since the first day of the calendar quarter in which the Launch
Date occurs and the Launch Date (including such first day, but
excluding the Launch Date) and (B) the denominator of which is equal to
90.
(ii) In the event that (A) Purchaser settles any of the
litigation matters set forth as items 2 and 3 on Schedule 5.5 and such
settlement permits, or does not prohibit, commercial sales to
unaffiliated third parties by Xxxx Laboratories, Inc. ("XXXX") or any
of its Affiliates of a Competing Drug and (B) Xxxx or any of its
Affiliates commences such commercial sales, (I) Purchaser's obligation
to make
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the Additional Payments will terminate in accordance with the last
sentence of Section 2.6(b)(i) and (II) for a period of ten days
thereafter, Purchaser and Pfizer shall negotiate in good faith whether
or not Purchaser shall provide to Pfizer (as agent on behalf of the
Asset Selling Corporations) further consideration for the sale and
transfer of the Purchased Assets, in lieu of the continuation of the
Additional Payments and, if so, the amount of such consideration and
such terms and conditions as may be reasonably acceptable to Purchaser
and Pfizer. If, by the end of such ten day period, Purchaser and Pfizer
are unable to reach an agreement on whether and how much further
consideration shall be paid and the terms and conditions thereof,
Purchaser and Pfizer shall refer such matter to an independent third
party valuation specialist (such as a reputable investment bank)
mutually acceptable to Purchaser and Pfizer. Such valuation specialist
shall make a determination with respect to whether and how much further
consideration shall be paid and the terms and conditions thereof within
15 days after its engagement by Purchaser and Pfizer. In making such
determination, such valuation specialist shall consider the value to
Pfizer of the remaining Additional Payments that it would have
otherwise likely received in the absence of the settlement, the terms
of Purchaser's settlement and such other matters as the parties and
such valuation specialist deem relevant. Such determination shall be
delivered in writing to Purchaser and Pfizer within such 15 day period
and shall be final and binding on, and nonappealable by, Purchaser and
Pfizer. Purchaser and Pfizer shall each pay one-half the costs incurred
in connection with the engagement of such valuation specialist.
(iii) If (A) a Competing Drug (other than a Competing Drug
commercially sold to unaffiliated third parties by Xxxx or any of its
Affiliates as permitted, or not prohibited, by any settlement of any of
the litigation matters set forth as items 2 and 3 on Schedule 5.5) is
withdrawn from the market in the United States (the date of such
withdrawal, the "WITHDRAWAL DATE") and (B) the Exclusivity Period has
not expired, Purchaser shall resume payment of the Additional Payments
commencing on the last Business Day of the calendar quarter following
the first full calendar quarter after the Withdrawal Date occurs until
the expiration of the Exclusivity Period in accordance with the first
sentence of Section 2.6(b)(i). All other Additional Payments made
pursuant to this Section 2.6(b)(iii) shall be made in accordance with
the first sentence of Section 2.6(b)(i) (excluding the parenthetical
relating to the aggregate total payment), unless Purchaser's obligation
to make such Additional Payments is terminated pursuant to and in
accordance with the last sentence of Section 2.6(b)(i); it being
understood that the date of re-commencement of commercial sales to
unaffiliated third parties of a withdrawn Competing Drug shall be
deemed to be a "Launch Date" for purposes of Section 2.6(b)(i). For the
avoidance of doubt, this Section 2.6(b)(iii) shall in no way affect the
rights and obligations of the parties under Section 2.6(b)(ii),
including the respective rights and obligations of the parties upon a
withdrawal from the market in the United States of a Competing Drug
commercially sold to unaffiliated third parties by
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Xxxx or any of its Affiliates as permitted, or not prohibited, by any
settlement of any of the litigation matters set forth as items 2 and 3
on Schedule 5.5.
Section 2.7 Allocation of the Purchase Price. The parties
shall negotiate in good faith and agree upon an allocation of the Purchase Price
(a) among each of the Asset Selling Corporations and (b) between tangible and
intangible Purchased Assets (collectively, the "ALLOCATION"). Pfizer and
Purchaser agree not to take a position on any income tax return, before any
Governmental Authority or in any judicial proceeding that is inconsistent with
the Allocation. The Additional Payments shall be allocated in the same manner as
the Purchase Price.
Section 2.8 Risk of Loss. Until the Closing, any loss of or
damage to the Purchased Assets from fire, casualty or any other occurrence shall
be the sole responsibility of Pfizer or its Affiliates, as the case may be. At
the Closing, title to the Purchased Assets shall be transferred to Purchaser,
and Purchaser shall thereafter bear all risks of loss associated with the
Purchased Assets.
Section 2.9 Adjustment of the Purchase Price.
(a) Promptly after the execution of this Agreement,
Pfizer shall engage IMS Health Incorporated ("IMS") to determine the Months of
Supply of each Product that was held by Pfizer's or its Affiliates' wholesale
and chain customers, as of January 31, 2003 (the "CALCULATION DATE"). Pfizer and
Purchaser shall each pay one-half of all the costs incurred in connection with
the engagement of IMS. "MONTHS OF SUPPLY" shall be determined as set forth on
Schedule 2.9. Pfizer shall request that IMS deliver to each of Pfizer and
Purchaser, within 30 days of the Closing Date, a notice (the "SUPPLY NOTICE")
setting forth the Months of Supply as of the Calculation Date for each Product.
The determination of IMS of Months of Supply as set forth on the Supply Notice
shall be final, conclusive and binding on the parties hereto.
(b) The Purchase Price shall be adjusted in accordance
with the formula set forth on Schedule 2.9(b).
(c) In addition, with respect to any Product, if the
Applicable Average Daily Sales exceeds the Historic Average Daily Sales, the
Purchase Price shall be reduced by an amount equal to such excess multiplied by
the Historic Gross Profit Percentage multiplied by the number of days in the
period from February 1, 2003 to and including the Closing Date (the "DAILY SALES
ADJUSTMENT AMOUNT"). As promptly as practicable after the Closing, Pfizer shall
deliver a certificate to Purchaser setting forth in reasonable detail the
Applicable Average Daily Sales for each Product and the Daily Sales Adjustment
Amount for each Product, if any, calculated pursuant to this Section 2.9(c). If
any adjustment to the Purchase Price is required pursuant to this Section 2.9(c)
as set forth in such certificate delivered by Pfizer, Pfizer shall pay to
Purchaser the aggregate Daily Sales Adjustment Amount by wire transfer in
immediately available funds to an account specified in writing by Purchaser
within five Business Days after delivery of such certificate.
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(d) The Purchase Price as it may be adjusted pursuant to
Sections 2.9(b) and (c) shall be referred to herein as the "ADJUSTED PURCHASE
PRICE".
ARTICLE III
CLOSING
Section 3.1 Closing.
(a) The Closing shall take place at the offices of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of
America at 10:00 A.M., New York time, on the second Business Day following the
satisfaction or waiver of the conditions precedent specified in Article IV
(other than the conditions to be satisfied on the Closing Date, but subject to
the waiver or satisfaction of such conditions), or at such other time and place
as the parties hereto may mutually agree; provided, however, that without the
agreement of Pfizer, Purchaser and Parent, the Closing shall not occur later
than the applicable date specified in Section 9.1(b). The date on which the
Closing occurs is called the "CLOSING DATE". The Closing shall be deemed to
occur and be effective as of the close of business on the Closing Date.
(b) At the Closing, Pfizer shall deliver, or cause to be
delivered, to Purchaser the instruments and documents set forth in Exhibit A, in
each case in a form reasonably acceptable to Purchaser.
(c) At the Closing, Purchaser shall deliver, or cause to
be delivered, to Pfizer the following: (i) the Purchase Price, by wire transfer
in immediately available funds to one or more accounts specified in writing by
Pfizer at least two Business Days prior to the Closing Date, and (ii) the
instruments and documents set forth in Exhibit B, in each case in a form
reasonably acceptable to Pfizer.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1 Conditions to the Obligations of Purchaser and
Pfizer. The respective obligations of each of the parties to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
of the following conditions precedent:
(a) there shall not (i) be in effect in any Law or
Governmental Order that makes illegal or enjoins or prevents in any respect the
consummation of the transactions contemplated by this Agreement or (ii) have
been commenced, and shall be continuing or threatened in writing, any action or
proceeding by any Governmental Authority that seeks to prevent or enjoin in any
respect the transactions contemplated by this Agreement; and
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(b) the waiting period required under the HSR Act,
including any extensions thereof, shall have expired and any investigations
relating to the sale hereunder that may have been opened by either the United
States Department of Justice or the FTC by means of a request for additional
information or otherwise shall have terminated.
Section 4.2 Conditions to the Obligations of Purchaser. The
obligations of Purchaser and Parent to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction of the following
conditions precedent:
(a) Pfizer shall have performed in all material respects
its agreements and obligations contained in this Agreement required to be
performed by it at or before the Closing;
(b) the representations and warranties of Pfizer
contained in this Agreement (i) that are qualified as to materiality or by
reference to Material Adverse Effect shall be true and correct and (ii) that are
not so qualified shall be true and correct in all materials respects, in each
case as of the date of this Agreement and as of the Closing Date, except to the
extent such representations and warranties expressly relate to a particular date
(in which case, on and as of such particular date);
(c) Pfizer shall have made, or caused to be made,
delivery to the Purchaser of the items required by Section 3.1(b);
(d) Pfizer shall have consented to Purchaser's engagement
of Fitzpatrick, Cella, Xxxxxx & Xxxxxx as patent counsel for the litigation
matters set forth as items 2 and 3 on Schedule 5.5 and waived any conflict of
interests in relation thereto;
(e) the Parent Shareholder Approval shall have been
obtained; and
(f) since the date of this Agreement, there shall not
have been a Material Adverse Effect.
Section 4.3 Conditions to the Obligations of Pfizer. The
obligation of Pfizer to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction of the following conditions
precedent:
(a) each of Purchaser and Parent shall have performed in
all material respects its agreements and obligations contained in this Agreement
required to be performed by it at or before the Closing;
(b) the representations and warranties of each of Parent
and Purchaser contained in this Agreement (i) that are qualified as to
materiality or by reference to Purchaser Material Adverse Effect shall be true
and correct and (ii) that are not so qualified shall be true and correct in all
materials respects, in each case as of the date of this Agreement and as of the
Closing Date, except to the extent such representations and
17
warranties expressly relate to a particular date (in which case, on and as of
such particular date); and
(c) Purchaser shall have made, or caused to be made,
delivery to Pfizer of the items required by Section 3.1(c).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PFIZER
Pfizer hereby represents and warrants to Purchaser and Parent
as follows:
Section 5.1 Organization. Pfizer is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Each of the Asset Selling Corporations is a corporation duly
organized, validly existing and, where applicable, in good standing under the
Laws of the jurisdiction of its organization.
Section 5.2 Authority; Binding Effect.
(a) Pfizer has all requisite corporate power and
authority to carry on its business as it is now being conducted and to execute
and deliver this Agreement and the Ancillary Agreements and to perform its
obligations hereunder. The execution and delivery by Pfizer of this Agreement
and the Ancillary Agreements and the performance by Pfizer of its obligations
hereunder have been, or will have been at the Closing, duly authorized by all
requisite corporate action.
(b) Each of the Asset Selling Corporations has all
requisite corporate power and authority to carry on its business as it is now
being conducted. The performance by each of the Asset Selling Corporations of
all actions necessary to permit Pfizer to fulfill its obligations hereunder has
been, or will have been at the Closing, duly authorized by all requisite
corporate action. Pfizer has the requisite corporate authority to bind each of
the Asset Selling Corporations and to cause each of them to act and perform all
their respective obligations herein and in the Ancillary Agreements.
(c) This Agreement has been duly executed and delivered
by Pfizer and, assuming the due authorization, execution and delivery by each of
Purchaser and Parent of this Agreement, constitutes a valid and binding
obligation of Pfizer, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law). Assuming the due authorization, execution and
delivery by Purchaser of each of the Ancillary Agreements, each of the Ancillary
Agreements when duly executed and delivered by Pfizer at the Closing will
constitute a valid and binding obligation of Pfizer, enforceable against it in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization,
18
moratorium or similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law).
Section 5.3 Non-Contravention. The execution, delivery and
performance by Pfizer of this Agreement and the Ancillary Agreements, the
actions to be taken by the Asset Selling Corporations necessary to permit Pfizer
to fulfill its obligations hereunder and the consummation of the transactions
contemplated hereby do not and will not (i) violate any provision of the
certificate of incorporation or bylaws of Pfizer or the comparable
organizational documents of any of the Asset Selling Corporations; (ii) conflict
with, or result in the breach of, constitute a default under, result in the
termination, cancellation or acceleration (whether after the giving of notice or
the lapse of time or both) of any right or obligation of any of the Asset
Selling Corporations under or to a loss of any benefit to which any of the Asset
Selling Corporations is entitled under, any contract, agreement or other
arrangement or understanding, lease of real estate or license of the
Intellectual Property to which any of the Asset Selling Corporations is a party
or to which its assets are subject and that relates solely to the Products or
(iii) assuming compliance with the matters set forth in Sections 5.4 and 6.5,
violate or result in a breach of or constitute a default under any Law or other
restriction of any Governmental Authority to which any of the Seller
Corporations is subject; except, with respect to clauses (ii) and (iii), for any
violations, breaches, conflicts, defaults, terminations, cancellations or
accelerations that have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or a material
adverse effect on the ability of Pfizer to consummate the transactions
contemplated hereby without material delay.
Section 5.4 Governmental Consents. Except for the applicable
requirements of the HSR Act, the execution and delivery by Pfizer of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby do not require any consent or approval of any Governmental
Authority, except for consents or approvals, the failure of which to obtain has
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.5 No Litigation.
(a) Except as set forth on Schedule 5.5, as of the date
hereof, no action, audit, litigation, investigation, suit or proceeding by or
before any Governmental Authority relating solely to the Products, the Purchased
Assets or the transactions contemplated hereby is pending against or threatened
in writing or, to the Knowledge of Pfizer, threatened orally against any of the
Seller Corporations, in each case which has had, or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(b) There are no outstanding orders, injunctions or
decrees of any United States Governmental Authority that apply to any of the
Purchased Assets (or will
19
apply to Purchaser after the Closing) that restrict the ownership, disposition
or use of the Purchased Assets in any material respect.
Section 5.6 Compliance with Laws. Except with respect to
Product Registrations (which are the subject of Section 5.7) and except as set
forth on Schedule 5.6:
(a) each of the Asset Selling Corporations is in
compliance in all respects with all Laws applicable to the ownership of the
Purchased Assets and has not received any written notice or, to the Knowledge of
Pfizer, oral notice that any non-compliance of the foregoing is being alleged,
in each case except to the extent that the failure to comply therewith has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and
(b) a Seller Corporation possesses all Governmental
Authorizations, except where the failure to possess any such Governmental
Authorization has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section 5.7 Product Registrations.
(a) Schedule 5.7 sets forth, as of the date hereof, a
list of all material Governmental Authorizations granted to the Asset Selling
Corporations by any Governmental Authority to market any of the Products (the
"PRODUCT REGISTRATIONS").
(b) Except as set forth on Schedule 5.7, all Products
sold under the Product Registrations are manufactured and marketed in accordance
with the specifications and standards contained in such Product Registrations,
except where the failure to comply therewith has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(c) Except as set forth on Schedule 5.7, an Asset Selling
Corporation is the sole and exclusive owner of the Product Registrations and has
not granted any right of reference with respect thereto.
Section 5.8 Material Contracts.
(a) Except as set forth on Schedule 5.8(a), none of the
Asset Selling Corporations is a party to or bound by any:
(i) contract, agreement or other arrangement for the
purchase of Inventories or other personal property with any supplier or
manufacturer relating solely to the Products, in each case providing
for financial commitments in excess of (A) $50,000 and extending beyond
one year from the date hereof or (B) $150,000;
20
(ii) contract, agreement or other arrangement for the sale
of Inventories or other personal property with any customer relating
solely to the Products, in each case with firm commitments in excess of
one year from the date hereof;
(iii) broker, distributor, dealer, manufacturer's
representative, franchise or agency agreement relating solely to the
Products, the terms of which provide for financial commitments in
excess of $150,000; or
(iv) contract, agreement or other arrangement materially
limiting the sale of the Products.
(b) Except as otherwise set forth on Schedule 5.8(a), (i)
each of the contracts, agreements or other arrangements set forth on Schedule
5.8(a) (collectively, the "MATERIAL CONTRACTS") is valid and binding on the
Asset Selling Corporation that is a party thereto, and, to the Knowledge of
Pfizer, the other party thereto, and is in full force and effect; and (ii) no
Asset Selling Corporation is, and, to the Knowledge of Pfizer, the other party
thereto is not, in breach of, or default under, any Material Contract, in any
material respect.
(c) Schedule 5.8(c) sets forth a list of all of the
agreements that any of the Seller Corporations is a party to providing for the
payment of Rebates ("MANAGED CARE AGREEMENTS") as of December 31, 2002. If any
Managed Care Agreements have expired between December 31, 2002 and the Closing,
Pfizer shall deliver a revised Schedule 5.8(c) at or prior to the Closing
reflecting those expirations.
Section 5.9 Intellectual Property; Know-how.
(a) Schedule 2.1(a)(i) sets forth a true and complete
list of all Patents relating solely to the Products, and Schedule A sets forth a
true and complete list of all registered trademarks and service marks relating
solely to the Products. None of the Seller Corporations is a party to a license
of the Intellectual Property.
(b) Except as set forth on Schedule 5.9(b), (i) there is
no notice of any claim being asserted in writing or, to the Knowledge of Pfizer,
asserted orally by any Person with respect to the ownership, validity,
inventorship or enforceability of any of the Intellectual Property or Know-how
which claim has had, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; (ii) to the Knowledge of Pfizer, an
Asset Selling Corporation owns or licenses the Intellectual Property or
Know-how; (iii) to the Knowledge of Pfizer, the Intellectual Property is free
and clear of any Liens, other than Permitted Encumbrances; and (iv) there is no
written notice or, to the Knowledge of Pfizer, oral notice by any Person that
the use of the Intellectual Property by any of the Asset Selling Corporations
infringes, misappropriates or otherwise violates the intellectual property
rights of any Person, except for such infringements, misappropriations or
violations that have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse
21
Effect. Except as set forth on Schedule 5.9(b), as of the date hereof, none of
the Seller Corporations has received a notice pursuant to 21 U.S.C. Section
505(j)(2)(B)(ii) alleging the invalidity or non-infringement of the Patents
relating solely to the Products.
(c) Except as set forth on Schedule 5.9(c), to the
Knowledge of Pfizer, no third party is infringing, misappropriating or otherwise
violating any of the Intellectual Property or Know-how, except for such
infringements, misappropriations or violations by such third party that have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.10 Assets. Except as set forth on Schedule 5.10,
each of the Asset Selling Corporations owns, leases or has the legal right to
use all of its Purchased Assets (other than Intellectual Property and Know-how,
which are the subjects of Section 5.9) free and clear of all Liens, other than
Permitted Encumbrances. Except as set forth on Schedule 5.10, each of the Asset
Selling Corporations has good title to (or in the case of leased Purchased
Assets, valid leasehold interests in) all its Purchased Assets (other than
Intellectual Property and Know-how, which are the subjects of Section 5.9). At
the Closing, Purchaser will acquire good and marketable title in and to each of
the Purchased Assets, free and clear of all Liens, other than Permitted
Encumbrances. The Purchased Assets (without giving effect to the Excluded
Assets) and those assets that are to be retained by Pfizer or any of its
Affiliates, but made available to Purchaser pursuant to the Ancillary Agreements
and the licenses referred to in Section 2.1(b), constitute all the assets and
rights sufficient to conduct in all material respects the marketing, sale and
distribution of the Products as conducted as of the date of this Agreement,
except for any services or other functions provided by any employees of Pfizer
or any of its Affiliates.
Section 5.11 Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Pfizer.
Section 5.12 Statements of Net Sales and Product Contribution.
Schedule 5.12 sets forth (a) the "Statements of Net Sales and Product
Contribution" for each of the Products of Pfizer and its United States
Affiliates for the years ended December 31, 2000, 2001 and 2002 and (b) the
"Statement of Net Sales and Product Contribution" for each of the Products of
Pfizer's non-United States Affiliates for the fiscal years ended November 30,
2000, 2001 and 2002 (clauses (a) and (b), collectively, the "STATEMENTS OF NET
SALES AND PRODUCT CONTRIBUTION"). The Statements of Net Sales and Product
Contribution have been derived from Pfizer's books and records, which have been
prepared in accordance with Pfizer's accounting policies and practices applied
on a consistent basis and are in accordance with United States generally
accepted accounting principles.
Section 5.13 Medical Information. Pfizer has made available to
Purchaser copies of all serious adverse event reports
22
and periodic adverse event reports relating to the Products that have been filed
with the FDA since January 1, 1997, including any material correspondence or
other material documents.
Section 5.14 Domain Names and Websites. None of Pfizer or any
of its Affiliates has any interest or ownership rights in any domain names or
websites relating solely to the Products, other than as set forth on Schedule
2.1(a)(ix).
Section 5.15 Inventory. Except as set forth on Schedule 5.15,
the Inventory sold to Purchaser pursuant to this Agreement (a) shall not be
adulterated or misbranded (within the meaning of the FDCA or the rules and
regulations of the FDA promulgated thereunder) at the time the same is tendered
to the common carrier for delivery to Purchaser, (b) shall meet in all material
respects all the specifications therefor at the time the same is tendered to the
common carrier for delivery to Purchaser and (c) shall be manufactured, labeled
and packaged in accordance in all material respects with Good Manufacturing
Practices set forth in 21 C.F.R. Parts 210 and 211 and all other applicable
Laws.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT
Purchaser and Parent hereby represent and warrant to Pfizer as
follows:
Section 6.1 Organization and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the Laws
of Ireland. Parent is a corporation duly organized, validly existing and in good
standing under the Laws of Northern Ireland.
Section 6.2 Corporate Authorization. Each of Purchaser and
Parent has all requisite corporate power and authority to carry on its business
as it is now being conducted and to execute and deliver this Agreement and, in
the case of Purchaser, the Ancillary Agreements and to perform its obligations
hereunder. The execution and delivery by each of Purchaser and Parent of this
Agreement and, in the case of Purchaser, of the Ancillary Agreements and the
performance by each of Purchaser and Parent of its obligations hereunder have
been, or will have been at the Closing, duly authorized by all requisite
corporate action. The Board of Directors of Parent, at a meeting duly called and
held, duly adopted resolutions (i) approving this Agreement and declaring that
the transactions contemplated by this Agreement are in the best interests of the
shareholders of Parent, (ii) directing that the approval of this Agreement and
the transactions contemplated by this Agreement be submitted to a vote at a
meeting of the shareholders of Parent and (iii) recommending that the
shareholders of Parent approve this Agreement and the transactions contemplated
by this Agreement.
Section 6.3 Binding Effect. This Agreement has been duly
executed and delivered by each of Purchaser and Parent and, assuming the due
authorization, execution and delivery by Pfizer of this Agreement, constitutes a
valid and binding
23
obligation of Purchaser, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law). Assuming the due authorization, execution and
delivery by Pfizer of each of the Ancillary Agreements, each of the Ancillary
Agreements when duly executed and delivered by Purchaser at the Closing will
constitute a valid and binding obligation of Purchaser, enforceable against it
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or law).
Section 6.4 Non-Contravention. The execution, delivery and
performance by each of Purchaser and Parent of this Agreement and, in the case
of Purchaser, of the Ancillary Agreements and, subject to the receipt of the
Parent Shareholder Approval, the consummation of the transactions contemplated
hereby do not and will not (i) violate any provision of the certificate of
incorporation, bylaws or other organizational documents of Purchaser or Parent;
(ii) conflict with, or result in the breach of, constitute a default under,
result in the termination, cancellation or acceleration (whether after the
giving of notice or the lapse of time or both) of any right or obligation of
Purchaser or Parent under, or to a loss of any benefit to which Purchaser or
Parent is entitled under, any contract, agreement or other arrangement or
understanding, lease of real estate or license of intellectual property to which
Purchaser or Parent is a party or to which its assets are subject or (iii)
assuming compliance with the matters set forth in Sections 5.4 and 6.5, violate
or result in a breach of or constitute a default under any Law or other
restriction of any Governmental Authority to which Purchaser or Parent is
subject; except, with respect to clauses (ii) and (iii), for any violations,
breaches, conflicts, defaults, terminations, cancellations or accelerations that
have not had, and would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the ability of Purchaser or Parent,
as the case may be, to perform its obligations under this Agreement and, in the
case of Purchaser, the Ancillary Agreements (a "PURCHASER MATERIAL ADVERSE
EFFECT") or would not reasonably be expected to materially delay the
consummation of the transactions contemplated hereby.
Section 6.5 Governmental Consents. Except for the applicable
requirements of the HSR Act, the execution and delivery by each of Purchaser and
Parent of this Agreement and, in the case of Purchaser, the Ancillary
Agreements, and the consummation of the transactions contemplated hereby do not
require any consent or approval of any Governmental Authority, except for
consents or approvals, the failure of which to obtain has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Purchaser
Material Adverse Effect.
Section 6.6 Financial Resources. Purchaser has, or Parent
shall cause Purchaser to have, on or prior to the Closing Date, sufficient cash
to pay the Purchase Price.
24
Section 6.7 Condition of the Purchased Assets. Purchaser and
its representatives and agents have had and have exercised, prior to the date
hereof, the right to make all inspections and investigations of the Products and
the Purchased Assets deemed necessary or desirable by Purchaser. Purchaser is
purchasing the Purchased Assets based solely on the results of its inspections
and investigations and on the representations and warranties of Pfizer expressly
set forth in this Agreement and the Ancillary Agreements. In light of these
inspections and investigations and the representations and warranties made to
Purchaser by Pfizer in Article V, Purchaser is relinquishing any right to any
claim based on any representations and warranties, other than those specifically
included in Article V. Any claims Purchaser may have for breach of
representation or warranty shall be based solely on the representations and
warranties of Pfizer set forth in Article V. All warranties of habitability,
merchantability and fitness for any particular purpose, and all other warranties
arising under the Uniform Commercial Code (or similar foreign Laws), are hereby
waived by Purchaser. Purchaser further represents that neither Pfizer nor any
other Person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any information regarding any of the Seller
Corporations, the Products, the Purchased Assets or the Assumed Liabilities not
expressly set forth in this Agreement, and neither Pfizer nor any other Person
will have or be subject to any Liability to Purchaser or any other Person
resulting from the distribution to Purchaser or its representatives or agents,
or Purchaser's use of, any such information, including any confidential
memoranda distributed by Pfizer relating to the Products or other publication
provided to Purchaser or its representatives or agents, or any other document or
information provided to Purchaser or its representatives or agents in connection
with the sale of the Products.
Section 6.8 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Purchaser or Parent.
Section 6.9 Voting Requirement. The affirmative vote of the
holders of a majority of the issued ordinary shares of Parent at the
Shareholders' Meeting or any adjournment or postponement thereof to approve this
Agreement and the transactions contemplated by this Agreement (the "PARENT
SHAREHOLDER APPROVAL") is the only vote of the holders of any class or series of
the capital stock and/or any class or share in the capital of Purchaser or
Parent necessary to approve this Agreement and the transactions contemplated
hereby.
ARTICLE VII
COVENANTS
Section 7.1 Information and Documents.
(a) From and after the date hereof and pending Closing,
upon reasonable advance notice, Pfizer shall, and shall cause each of the Asset
Selling
25
Corporations to, permit Purchaser and its representatives to have access, during
regular business hours, to the assets, manufacturing facilities, employees,
books and records of each of the Seller Corporations relating to the Products,
and shall furnish, or cause to be furnished, to Purchaser and its
representatives such financial, tax and operating data and other available
information with respect to the Products as Purchaser and its representatives
shall from time to time reasonably request; provided, however, that no such
access shall unreasonably interfere with the Seller Corporations' operation of
their respective businesses.
(b) All information received by Purchaser and given by or
on behalf of the Seller Corporations in connection with this Agreement and the
transactions contemplated hereby will be held by Purchaser and its Affiliates,
agents and representatives as "Evaluation Material", as defined in, and pursuant
to the terms of, the Confidentiality Agreement.
Section 7.2 Interim Operations Relating to the Products. From
and after the date hereof and to the Closing, except (i) as set forth on
Schedule 7.2 or as otherwise contemplated by this Agreement or (ii) as Parent
shall otherwise consent in writing, Pfizer covenants and agrees that it shall,
or shall cause each of the Asset Selling Corporations to, conduct the sale and
marketing of the Products in the ordinary and usual course consistent with past
practice, and use its commercially reasonable efforts to preserve intact the
business and related relationships with customers, suppliers and other third
parties. From and after the date hereof and to the Closing, except (i) as set
forth on Schedule 7.2 or as otherwise contemplated by this Agreement or (ii) as
Parent shall otherwise consent in writing, Pfizer covenants and agrees that it
shall cause each of the Asset Selling Corporations, with respect to the sale and
marketing of the Products, to:
(a) not incur, create or assume any Lien with respect to
any of the Purchased Assets, other than Permitted Encumbrances;
(b) not dispose of any of the Purchased Assets, other
than in the ordinary course of the sale and marketing of the Products consistent
with past practice;
(c) not enter into, amend any material term of or waive
any material right under any Material Contract;
(d) not institute any new methods of purchase, sale or
operation nor institute any changes in the pricing of the Products or in
promotional allowances, other than in the ordinary course of the sale and
marketing of the Products consistent with past practice;
(e) not make any changes in the selling, pricing or
advertising practices, other than non-material changes in the ordinary course of
the sale and marketing of the Products consistent with past practice;
26
(f) not launch any packaging changes of the Products or
any line extensions of the Products;
(g) not waive, release, grant or transfer any
Intellectual Property, other than in the ordinary course of the sale and
marketing of the Products;
(h) not compromise or settle any of the litigation
matters set forth as items 2 and 3 on Schedule 5.5;
(i) not enter into any managed care or PBM contract to
include any of the Products, including amending or supplementing any existing
managed care or PBM contract to include any of the Products, not renew any
existing Managed Care Agreement or modify the terms relating to any of the
Products in any such existing Managed Care Agreement; and
(j) not agree to take any of the foregoing actions.
Section 7.3 Reasonable Best Efforts; Certain Governmental
Matters
(a) Upon the terms and subject to the conditions herein
provided (including Section 2.2), each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary for it to do under applicable Laws to
consummate and make effective the transactions contemplated by this Agreement,
including (i) to comply promptly with all legal requirements which may be
imposed on it with respect to this Agreement and the transactions contemplated
hereby (which actions shall include furnishing all information required by
applicable Law in connection with approvals of or filings with any Governmental
Authority or other Person); (ii) to satisfy the conditions precedent to the
obligations of such party hereto; (iii) to obtain any consent, authorization,
order or approval of, or any exemption by, any Governmental Authority or other
public or private third party required to be obtained or made by Purchaser or
Parent or the Seller Corporations in connection with the acquisition of the
Purchased Assets or the taking of any other action contemplated by this
Agreement and (iv) to take any action reasonably necessary to vigorously defend,
lift, mitigate, or rescind the effect of any litigation or administrative
proceeding adversely affecting the acquisition of the Purchased Assets or the
other transactions contemplated by this Agreement, including promptly appealing
any adverse court or administrative decision.
(b) Subject to appropriate confidentiality protections,
each of the parties hereto will furnish to the other party such necessary
information and reasonable assistance as such other party may reasonably request
in connection with the foregoing and will provide the other party with copies of
all filings made by such party with any Governmental Authority and, upon
request, any other information supplied by such party to a Governmental
Authority in connection with this Agreement and the transactions contemplated
hereby.
27
(c) Without limiting the generality of the undertakings
pursuant to this Section 7.3, (i) Purchaser, Parent and Pfizer agree to provide
or cause to be provided promptly to Governmental Authorities with regulatory
jurisdiction over enforcement of any applicable Competition Laws ("GOVERNMENTAL
ANTITRUST ENTITY") information and documents requested by any Governmental
Antitrust Entity or necessary, proper or advisable to permit consummation of the
acquisition of the Purchased Assets and the other transactions contemplated by
this Agreement; (ii) without in any way limiting the other provisions of this
Section 7.3, Purchaser, Parent and Pfizer agree to file any notification and
report form and related material required under the HSR Act as soon as
practicable and in any event not later than five Business Days after the date
hereof, and thereafter use its reasonable best efforts to certify as soon as
practicable its substantial compliance with any requests for additional
information or documentary material that may be made under the HSR Act and (iii)
Purchaser or Parent, as the case may be, shall take promptly, in the event that
any permanent or preliminary injunction or other order is entered or becomes
reasonably foreseeable to be entered in any proceeding relating to the
enforcement of any applicable Competition Laws that would make consummation of
the acquisition of the Purchased Assets or the other transactions contemplated
hereby in accordance with the terms of this Agreement unlawful or that would
prevent or delay consummation of the acquisition of the Purchased Assets or the
other transactions contemplated by this Agreement, any and all steps (including
the appeal thereof or the posting of a bond) necessary to vacate, modify or
suspend such injunction or order so as to permit such consummation on a schedule
as close as possible to that contemplated by this Agreement. Each of Pfizer,
Purchaser and Parent will provide to the other copies of all correspondence
between it (or its advisor) and any Governmental Antitrust Entity relating to
the acquisition of the Purchased Assets or any of the matters described in this
Section 7.3. Pfizer, Purchaser and Parent agree that all telephone calls and
meetings with a Governmental Antitrust Entity solely regarding the acquisition
of the Purchased Assets or any of the matters described in this Section 7.3
shall include representatives of Pfizer, Purchaser and Parent.
(d) The parties hereto expressly agree: (i) that any
breach by Purchaser or Parent, as the case may be, of its obligations under
Section 7.3(c) will cause irreparable harm to Pfizer; (ii) that Pfizer has
agreed to this transaction with Purchaser and Parent in specific reliance on
Purchaser's and Parent's obligations under Section 7.3(c), and would not have
otherwise agreed to go forward with Purchaser and Parent; and (iii) therefore,
Pfizer is entitled to specific performance of Purchaser's or Parent's
obligations under Section 7.3(c), and Purchaser and Parent hereby agree in
advance to the granting of such specific performance of such obligations without
proof of actual damages or harm.
Section 7.4 Transitional Services Agreement. At the Closing,
Purchaser and Pfizer shall enter into, execute and deliver a transitional
services agreement substantially to the effect set forth in Exhibit C (the
"TRANSITIONAL SERVICES AGREEMENT").
28
Section 7.5 Transitional Intellectual Property License
Agreement. At the Closing, Purchaser and Pfizer shall enter into, execute and
deliver a transitional intellectual property license agreement substantially to
the effect set forth in Exhibit D (the "TRANSITIONAL INTELLECTUAL PROPERTY
LICENSE AGREEMENT").
Section 7.6 Transitional Supply Agreement. At the Closing,
Purchaser and Pfizer shall enter into, execute and deliver a transitional supply
agreement relating to the Products substantially to the effect set forth in
Exhibit E (the "TRANSITIONAL SUPPLY AGREEMENT").
Section 7.7 Litigation Support. Purchaser and its Affiliates,
on the one hand, and Pfizer and its Affiliates, on the other hand, will
cooperate with each other in the defense or settlement of any Liabilities or
lawsuits involving the Products by providing the other party and such other
party's legal counsel and other designated Persons access to employees, records,
documents, data, equipment, facilities, products, parts, prototypes and other
information regarding the Products as such other party may request, to the
extent maintained or under the possession or control of the requested party. The
requesting party shall reimburse the other party for its reasonable
out-of-pocket expenses paid to third parties in performing its obligations under
this Section 7.7. Pfizer shall keep Purchaser informed of the status of the
pendency of the relevant Liabilities and lawsuits involving the Products for
which Pfizer has responsibility under this Agreement, shall advise Purchaser of
material issues involved in the litigation and shall use its commercially
reasonable efforts to seek a confidentiality agreement with respect to any
settlements of such lawsuits. For so long as any Liabilities or lawsuits
involving the Products for which Pfizer has responsibility under this Agreement
remain outstanding, Purchaser shall advise Pfizer of material issues involved in
the lawsuits involving the Products for which Purchaser has responsibility and
shall use its commercially reasonable efforts to seek a confidentiality
agreement with respect to any settlements of such lawsuits.
Section 7.8 Notifications.
(a) Pfizer and Purchaser shall agree on the method and
content of the notifications to customers of the sale of the Purchased Assets to
Purchaser. Pfizer and Purchaser agree that said notifications are to provide
sufficient advance notice of the sale and the plans associated therewith, with
the objective of minimizing any disruption of the sale and marketing of the
Products.
(b) Within ten Business Days after the Closing, Pfizer
and Purchaser jointly shall notify the counterparties to the Managed Care
Agreements in effect at such time that the Products have been sold to Purchaser.
In addition, Pfizer shall inform each such counterparty that, effective as of
the first day in the calendar quarter subsequent to the expiration of the first
full calendar quarter after the Closing, the Managed Care Agreement to which it
is a party shall be terminated solely with respect to the Products.
29
Section 7.9 Post-Closing Cooperation.
(a) Purchaser and Pfizer shall cooperate with each other,
and shall cause their officers, employees, agents, auditors, Affiliates and
representatives to cooperate with each other, for a period of 180 days after the
Closing to ensure the orderly transition of the sale and distribution of the
Products from Pfizer to Purchaser and to minimize any disruption to the sale and
distribution of the Products and the other respective businesses of Pfizer and
Purchaser that might result from the transactions contemplated hereby. After the
Closing, upon reasonable written notice, Purchaser and Pfizer shall furnish or
cause to be furnished to each other and their respective employees, counsel,
auditors and representatives access, during normal businesses hours, to such
information and assistance relating to the sale and distribution of the Products
(to the extent within the control of such party) as is reasonably requested for
financial reporting and accounting matters.
(b) After the Closing, upon reasonable written notice,
Purchaser and Pfizer shall furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance (to the extent within
the control of such party) relating to the Purchased Assets (including access to
books and records) as is reasonably requested for the filing of all Tax returns.
(c) Each of the parties hereto shall from time to time
after the Closing, without additional consideration, execute and deliver such
further instruments and take such other action as may be reasonably requested by
the other party to make effective the transactions contemplated by this
Agreement and the Ancillary Agreements. With respect to all documents,
information and other materials included in the Purchased Assets, in addition to
paper and other tangible copies, Pfizer shall, upon Purchaser's reasonable
request, also provide to Purchaser electronic copies of such documents,
information and other materials, provided that Pfizer or any of its Affiliates
or their respective agents have electronic copies thereof.
(d) Each party shall reimburse the other for reasonable
out-of-pocket costs and expenses incurred in assisting the other pursuant to
this Section 7.9. Neither party shall be required by this Section 7.9 to take
any action that would unreasonably interfere with the conduct of its business or
unreasonably disrupt its normal operations.
Section 7.10 Right of First Refusal on the Xxxxxxx Plant. For
a period of five years following the Closing Date, if Pfizer decides to seek
offers from third parties for the sale of the Xxxxxxx Plant, Pfizer shall notify
Purchaser of such decision in writing (the "XXXXXXX NOTICE"). Within 15 Business
Days after receipt of the Xxxxxxx Notice, Purchaser may elect to make an offer
to purchase the Xxxxxxx Plant by notifying Pfizer in writing (the "RIGHT OF
FIRST REFUSAL"). If Purchaser exercises its Right of First Refusal, Pfizer and
Purchaser shall negotiate in good faith the terms of a written agreement for the
sale and purchase of the Xxxxxxx Plant for a period of 90 days from the date of
Purchaser's notice of the exercise of its Right of First Refusal (the
"NEGOTIATION PERIOD"). During the Negotiation Period, Pfizer shall grant to
Purchaser access to the
30
due diligence information regarding the Xxxxxxx Plant to allow Purchaser to
conduct a reasonable due diligence review and examination regarding its possible
acquisition of the Xxxxxxx Plant. If, after the expiration of the Negotiation
Period, despite good faith negotiations, Pfizer and Purchaser have not entered
into a definitive written agreement setting forth the terms of the sale and
purchase of the Xxxxxxx Plant, Pfizer shall have the right at any time
thereafter to sell the Xxxxxxx Plant to any third party, provided that for a
period of two years following the expiration of the Negotiation Period, Pfizer
shall not sell the Xxxxxxx Plant to any such third party on terms and conditions
(including purchase price and economic or other material terms for the supply of
products), taken as a whole, materially less favorable to Pfizer than those last
offered by Purchaser to Pfizer in writing.
Section 7.11 Confidentiality.
(a) Except as otherwise contemplated by this Agreement,
Pfizer agrees that for a period of ten years following the Closing Date, it
shall, and it shall cause its Affiliates, agents and representatives to, keep
confidential any and all information, in any form or medium, relating solely to
the Products ("CONFIDENTIAL INFORMATION") strictly confidential. The term
"Confidential Information" does not include any information that (i) at the time
of disclosure or thereafter is generally available in the public domain (other
than as a result of a disclosure by Pfizer or any of its Affiliates, agents or
representatives) or (ii) is required to be disclosed under applicable Law or
judicial process.
(b) The parties hereto agree that a breach of this
Section 7.11 would cause irreparable damage for which no adequate remedy at law
would exist and damages would be difficult to determine and that Purchaser shall
be entitled to an injunction or injunctions to prevent breaches of this Section
7.11 and to enforce specifically the terms and provisions of this Section 7.11,
in addition to any other remedy at law or equity.
Section 7.12 Parent Shareholder Approval.
(a) Recommendation of the Board of Directors of Parent.
Neither the Board of Directors of Parent nor any committee thereof shall (or
shall agree or resolve to) withdraw or modify in a manner adverse to Pfizer or
propose publicly to withdraw or modify in a manner adverse to Pfizer the
recommendation by such Board of Directors or any such committee of this
Agreement or the transactions contemplated hereby, unless such Board of
Directors or a committee thereof determines in good faith (after consultation
with outside counsel) that the failure to take such action would result in a
breach of its fiduciary duties under applicable Law (any such action taken in
accordance with this Section 7.12 being referred to herein as a "PARENT ADVERSE
RECOMMENDATION CHANGE").
(b) Preparation of the Parent Circular; Shareholders'
Meeting.
(i) As promptly as practicable following the date of this
Agreement, Parent shall prepare and mail the circular of Parent (the
"PARENT CIRCULAR") to be
31
sent to the shareholders of Parent in connection with obtaining the
Parent Shareholder Approval at the Shareholders' Meeting. Parent shall
respond promptly to any comments of the UK Listing Authority (the
"UKLA") with respect to the Parent Circular. In any event, Parent shall
use its reasonable best efforts to obtain the clearance of the UKLA on
or before March 7, 2003. Pfizer covenants and agrees that it shall
provide such reasonable assistance in the preparation of the Parent
Circular as may be reasonably requested by Parent. The Parent Circular
shall comply in all material respects with the requirements of the UKLA
Listing Rules as published by the Financial Services Authority, the
articles of association and memorandum of association of Parent and all
other applicable Laws.
(ii) Parent shall, as promptly as practicable after the
receipt of the clearance of the UKLA, establish a record date (which
will be as promptly as reasonably practicable following the receipt of
the clearance of the UKLA) for, duly call, give notice of, convene and
hold a meeting of its shareholders, which meeting Parent shall cause to
occur on the earlier of (A) the 20th day following the mailing of the
Parent Circular and (B) the sixth Business Day prior to the Termination
Date (the "SHAREHOLDERS' MEETING"), for the purpose of obtaining the
Parent Shareholder Approval; provided, however, that if Parent is
unable to obtain a quorum of its shareholders at such time, Parent may
extend the date of the Shareholders' Meeting by no more than five
Business Days and Parent shall use its best efforts during such five
Business Day period to obtain such a quorum as soon as practicable. The
notice of such Shareholders' Meeting shall state that a resolution to
approve this Agreement and the transactions contemplated hereby will be
considered at the Shareholders' Meeting. Subject to Section 7.12(a),
Parent shall, through its Board of Directors or any committee thereof,
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby and shall include such recommendation
in the Parent Circular.
Section 7.13 Transfer of Regulatory Approvals.
(a) Assignment. Promptly after the Closing, Pfizer and
Purchaser shall work together to transfer and assign all Product Registrations
to Purchaser at such times and in such a manner as is reasonably acceptable to
Purchaser. In the event that Purchaser assigns any Product Registrations to an
Affiliate of Purchaser or to a third party, Purchaser shall remain liable for
the performance of its obligations under this Agreement.
(b) Reporting Obligations. Upon the transfer and
assignment of each of the Product Registrations to Purchaser, as provided in
Section 7.13(a), and thereafter, Purchaser shall be solely responsible for
making all reports to the appropriate Governmental Authorities as are required
in connection with such Product Registrations assigned to Purchaser and for
conducting all pharmacovigilance activities in connection with such Product
Registrations. In order for the parties hereto to comply with their
32
respective responsibilities under this Section 7.13 and otherwise relating to
the reporting of adverse drug experiences, to the extent any party receives any
information regarding an adverse drug experience relating to the use of any of
the Products, such party shall promptly provide the other party with such
information in accordance with adverse drug experience procedures that shall be
mutually agreed upon by Pfizer and Purchaser after the signing of this
Agreement, but in any event no later than one month following the Closing Date.
Section 7.14 Certain Patents. Immediately following the
Closing, Purchaser shall grant to Pfizer or its designated Affiliate a
non-exclusive, perpetual, royalty-free, worldwide license to use the Patents set
forth as item 2 on Schedule 2.1(a)(i), it being understood that Pfizer or such
Affiliate shall not use such Patents in connection with any oral contraceptive
products.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by Pfizer.
(a) Subject to the provisions of this Article VIII,
Pfizer agrees to defend, indemnify and hold harmless Parent, Purchaser and their
respective Affiliates, and their respective directors, officers, agents,
employees, successors and assigns, from and against any and all claims, actions,
causes of action, judgments, awards, Liabilities, losses, costs (including
reasonable attorney's fees) or damages (collectively, a "LOSS" or, the "LOSSES")
claimed or arising from (i) any Retained Liability, (ii) any breach by Pfizer of
any of its covenants or agreements contained in this Agreement or (iii) any
breach of any representation or warranty of Pfizer contained in this Agreement,
the Transitional Services Agreement or the Transitional Intellectual Property
License Agreement (it being agreed that solely for the purposes of such right to
indemnification, such representations and warranties shall be deemed not
qualified by any reference therein to materiality (including Material Adverse
Effect)).
(b) Purchaser and Parent acknowledge and agree that
Pfizer shall not have any Liability under any provision of this Agreement for
any Loss to the extent that such Loss relates to action taken by Purchaser,
Parent or their Affiliates (other than action taken by Pfizer in breach of this
Agreement) after the Closing Date. Each of Parent and Purchaser shall take, and
shall cause their respective Affiliates to take, all reasonable steps to
mitigate any Loss upon becoming aware of any event which would reasonably be
expected to, or does, give rise thereto, including incurring costs only to the
extent reasonably necessary to remedy the breach which gives rise to the Loss.
Section 8.2 Indemnification by Parent.
(a) Subject to the provisions of this Article VIII,
Parent agrees to defend, indemnify and hold harmless Pfizer and its Affiliates,
and their respective
33
directors, officers, agents, employees, successors and assigns, from and against
any and all Loss claimed or arising from (i) any Assumed Liability, (ii) any
breach by Purchaser or Parent of any of its covenants or agreements in this
Agreement, (iii) any breach of any representation or warranty of Purchaser or
Parent contained in this Agreement or, in the case of Purchaser, the
Transitional Services Agreement or the Transitional Intellectual Property
License Agreement or (iv) events occurring on or after the Closing Date in
connection with the Products or the Purchased Assets, including the use,
ownership or possession of the Purchased Assets from and after the Closing Date.
(b) Pfizer shall take, and cause its Affiliates to take,
all reasonable steps to mitigate any Loss upon becoming aware of any event which
would reasonably be expected to, or does, give rise thereto, including incurring
costs only to the extent reasonably necessary to remedy the breach which gives
rise to the Loss.
Section 8.3 Notice of Claims. If any of the Persons to be
indemnified under this Article VIII (the "INDEMNIFIED PARTY") has suffered or
incurred any Loss, the Indemnified Party 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 or any other agreement or instrument delivered pursuant hereto
in respect of which such Loss shall have occurred. If any action at Law or suit
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 Article
VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such
action or suit and tender to the Indemnifying Party the defense of such action
or suit. A failure by the Indemnified Party to give notice and to tender the
defense of the action or suit in a timely manner pursuant to this Section 8.3
shall not limit the obligation of the Indemnifying Party under this Article
VIII, except (i) to the extent such Indemnifying Party is materially prejudiced
thereby, (ii) to the extent expenses that are incurred during the period in
which notice was not provided shall not be deemed a Loss and (iii) as provided
by Section 8.5.
Section 8.4 Third Party Claims.
(a) The Indemnifying Party under this Article VIII shall
have the right, but not the obligation, to conduct and control, through counsel
of its choosing, any third party claim, action, suit or proceeding (a "THIRD
PARTY CLAIM"), and the Indemnifying Party may compromise or settle the same,
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 Third Party Claim without
the approval of the Indemnified Party if such compromise or settlement imposes
any obligations on the Indemnified Party, such approval not to be unreasonably
withheld. No Indemnified Party may compromise or settle any Third Party Claim
for which it is seeking indemnification hereunder without the consent of the
Indemnifying Party. The Indemnifying Party shall permit the Indemnified Party to
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participate in, but not control, the defense of any such action or suit through
counsel chosen by the Indemnified Party, provided that the fees and expenses of
such counsel shall be borne by the Indemnified Party. If the Indemnifying Party
elects not to control or conduct the defense or prosecution of a Third Party
Claim, the Indemnifying Party nevertheless shall have the right to participate
in the defense or prosecution of any Third Party Claim and, at its own expense,
to employ counsel of its own choosing for such purpose.
(b) The parties hereto shall cooperate in the defense or
prosecution of any Third Party Claim, with such cooperation to include (i) the
retention of and the provision to the Indemnifying Party of records and
information that are reasonably relevant to such Third Party Claim and (ii) the
making available of employees on a mutually convenient basis for providing
additional information and explanation of any material provided hereunder.
Section 8.5 Expiration Notwithstanding anything in this
Agreement to the contrary, if the Closing shall have occurred, all covenants,
agreements, representations and warranties made herein shall survive the
Closing. Notwithstanding the foregoing, all representations and warranties made
herein (except for the last two sentences of Section 5.10 and Section 5.11), and
all indemnification obligations under Sections 8.1 and 8.2 with respect to any
such representation or warranty, shall terminate and expire on, and no action or
proceeding seeking damages or other relief for breach of any thereof or for any
misrepresentation or inaccuracy with respect thereto shall be commenced after,
the expiration of 18 months following the Closing Date, unless prior to such
date a claim for indemnification with respect thereto shall have been made, with
reasonable specificity, by written notice given under Section 8.3.
Section 8.6 Certain Limitations. Notwithstanding the other
provisions of this Article VIII, Pfizer shall not have any indemnification
obligations for Losses under Section 8.1(a)(iii), (i) for any individual item
where the Loss relating thereto is less than $50,000 and (ii) in respect of each
individual item where the Loss relating thereto is equal to or greater than
$50,000, (A) unless the aggregate amount of all such Losses exceeds 1% of the
Adjusted Purchase Price, in which event Pfizer shall be required to pay all
amounts of such Losses (from the first dollar of such Losses), and (B) only up
to a maximum amount of 35% of the Adjusted Purchase Price; provided, however,
that the foregoing limitations shall not apply to breaches of any of the
representations and warranties contained in the last two sentences of Section
5.10 and Section 5.11.
Section 8.7 Losses Net of Insurance, Etc.. The amount of any
Loss for which indemnification is provided under Section 8.1 or 8.2 shall be net
of (i) any amounts recovered by the Indemnified Party pursuant to any
indemnification by or indemnification agreement with any third party (any such
third party, a "COLLATERAL SOURCE") and (ii) an amount equal to the present
value of the tax benefit, if any, attributable to such Loss. Indemnification
under this Article VIII shall not be available unless the Indemnified Party
first uses all commercially reasonable efforts to seek recovery from all
Collateral Sources. The Indemnifying Party may require an
35
Indemnified Party to assign the rights to seek recovery pursuant to the
preceding sentence; provided, however, that the Indemnifying Party will then be
responsible for pursuing such claim at its own expense. If the amount to be
netted hereunder from any payment required under Section 8.1 or 8.2 is
determined after payment by the Indemnifying Party of any amount otherwise
required to be paid to an Indemnified Party to this Article VIII, the
Indemnified Party shall repay to the Indemnifying Party, promptly after such
determination, any amount that the Indemnifying Party would not have had to pay
pursuant to this Article VIII had such determination been made at the time of
such payment.
Section 8.8 Sole Remedy/Waiver. Subject to Sections 7.3(d),
7.11(b) and 9.2, the parties hereto acknowledge and agree that the remedies
provided for in this Agreement shall be the parties' sole and exclusive remedy
with respect to the subject matter of this Agreement, other than claims for
injunctive relief. In furtherance of the foregoing, the parties hereby waive, to
the fullest extent permitted by applicable Law, any and all other rights, claims
and causes of action (including rights of contributions, if any) known or
unknown, foreseen or unforeseen, which exist or may arise in the future, other
than claims for injunctive relief, that it may have against Pfizer or any of its
Affiliates or Purchaser or any of its Affiliates, as the case may be, arising
under or based upon any federal, state or local Law.
Section 8.9 No Consequential Damages. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO
OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO OR ANY AFFILIATE OF ANY OTHER
PARTY HERETO FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR FOR DIMINUTION
IN VALUE OR LOST PROFITS THAT ARISE OUT OF OR RELATE TO A BREACH OF THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (OTHER THAN THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LAST TWO SENTENCES OF SECTION
5.10 AND SECTION 5.11), THE TRANSITIONAL SERVICES AGREEMENT AND THE TRANSITIONAL
INTELLECTUAL PROPERTY LICENSE AGREEMENT.
ARTICLE IX
TERMINATION
Section 9.1 Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written agreement among Purchaser, Parent
and Pfizer;
(b) by Purchaser, Parent or Pfizer, by giving written
notice of such termination to the other party, if the Closing shall not have
occurred on or prior to April 30, 2003 (the "TERMINATION DATE") (unless the
failure to consummate the Closing by such date (i) shall be due to the failure
of the party seeking to terminate this
36
Agreement to have fulfilled any of its obligations under this Agreement or
(ii) is due to the continuance of a waiting period or lack of an approval
required under or an injunction or equivalent thereof entered based upon any
Competition Laws, in which event Purchaser and Parent may not rely upon this
Section 9.1(b) to terminate this Agreement until nine months from the date of
this Agreement);
(c) by Purchaser, Parent or Pfizer, if any court of
competent jurisdiction or other competent Governmental Authority shall have
issued a Governmental Order or taken any other action permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such Governmental Order or other action shall have become final
and nonappealable;
(d) by Purchaser, Parent or Pfizer, if the Parent
Shareholder Approval shall not have been obtained at the Shareholders' Meeting
duly convened therefor or at any adjournment or postponement thereof;
(e) by Pfizer, in the event that a Parent Adverse
Recommendation Change shall have occurred; or
(f) by Pfizer, if Parent shall have failed to perform any
of its material covenants and agreements set forth in Section 7.12.
Section 9.2 Effect of Termination.
(a) In the event of the termination of this Agreement in
accordance with Section 9.1, this Agreement shall thereafter become void and
have no effect, and no party hereto shall have any Liability to the other party
hereto or their respective Affiliates, directors, officers or employees, except
for the obligations of the parties hereto contained in this Section 9.2 and
Sections 7.1(b), 10.1, 10.7, 10.8, 10.9 and 10.11, and except that nothing
herein will relieve any party from Liability for any material breach of any
covenant set forth in this Agreement prior to such termination.
(b) If this Agreement is terminated pursuant to Section
9.1(e) or (f) and both (i) Pfizer shall have performed in all material respects
its agreements and obligations contained in this Agreement required to be
performed by it at or before such Parent Adverse Recommendation Change (in the
case of Section 9.1(e)) or such failure (in the case of Section 9.1(f)), as the
case may be, and (ii) the representations and warranties of Pfizer contained in
this Agreement (A) that are qualified as to materiality or by reference to
Material Adverse Effect are true and correct and (B) that are not so qualified
are true and correct in all material respects, in each case as of the date of
this Agreement and as of the date of such Parent Adverse Recommendation Change
(in the case of Section 9.1(e)) or such failure (in the case of Section 9.1(f)),
as the case may be, except to the extent such representations and warranties
expressly relate to a particular date (in which case, on and as of such
particular date), then Parent shall pay Pfizer a fee equal to $3,300,000 (the
"TERMINATION FEE") by wire transfer of immediately available
37
funds to an account designated by Pfizer within two Business Days after such
termination.
(c) If this Agreement is terminated pursuant to Section
9.1(d) and Pfizer shall have performed in all material respects its agreements
and obligations contained in this Agreement required to be performed by it at or
before such termination, then Parent shall reimburse Pfizer for all the
reasonable fees and expenses, not in excess of $137,500, of Pfizer's outside
vendors (including its attorneys) incurred since October 17, 2002 in connection
with the evaluation and pursuit of the transactions contemplated by this
Agreement (the "PFIZER REIMBURSABLE FEES") by wire transfer of immediately
available funds to an account designated by Pfizer within two Business Days
after such termination.
(d) Parent acknowledges and agrees that the agreements
contained in Sections 9.2(b) and (c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Pfizer would
not enter into this Agreement; accordingly, if Parent fails promptly to pay the
amount due pursuant to either Section 9.2(b) or (c), and, in order to obtain
such payment, Pfizer commences a suit that results in a judgment against Parent
for the Termination Fee or the Pfizer Reimbursable Fees, as the case may be,
Parent shall pay to Pfizer its costs and expenses (including attorneys' fees and
expenses) in connection with such suit, together with interest on the amount of
the Termination Fee or the Pfizer Reimbursable Fees, as the case may be, from
the date such payment was required to be made until the date of the payment at
the prime rate of Citibank, N.A. in effect on the date such payment was required
to be made.
(e) In the event this Agreement shall be terminated and
at such time any party is in material breach of or default under any term or
provision hereof, such termination shall be without prejudice to, and shall not
affect, any and all rights to damages that the other party may have hereunder or
otherwise under applicable Law. The damages recoverable by the non-defaulting
party shall include all attorneys' fees reasonably incurred by such party in
connection with the transactions contemplated hereby.
(f) If this Agreement is terminated in accordance with
Section 9.1, Purchaser agrees that the prohibition in the Confidentiality
Agreement restricting Purchaser's ability to solicit any employee of Pfizer or
any of its Affiliates to join the employ of Purchaser or any of its Affiliates
shall be extended to a period of two years from the date of this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 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
38
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:
To Pfizer:
PFIZER INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Senior Vice President and
General Counsel
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
To Purchaser or Parent:
XXXXX HOLDINGS PLC
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Senior Vice President, Corporate Development,
General Counsel and Corporate Secretary
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxxxxx, Esq.
Section 10.2 Amendment; Waiver. Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and
39
signed, in the case of an amendment, by Parent, Purchaser and Pfizer, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
Section 10.3 Assignment. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that Purchaser may without such
consent assign its rights to purchase the Purchased Assets or its obligation to
assume the Assumed Liabilities hereunder to one or more of its Affiliates or to
any successor to all or substantially all of its pharmaceuticals business;
provided, however, that no such assignment by Purchaser shall relieve Purchaser
of any of its obligations hereunder.
Section 10.4 Entire Agreement. This Agreement (including all
Schedules and Exhibits) contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect to such matters, except for
the Confidentiality Agreement which will remain in full force and effect for the
term provided for therein and other than any written agreement of the parties
that expressly provides that it is not superseded by this Agreement.
Section 10.5 Fulfillment of Obligations. Any obligation of any
party to any other party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such party, shall be deemed to have
been performed, satisfied or fulfilled by such party.
Section 10.6 Parties in Interest. Except as provided in
Article VIII, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
Person other than Parent, Purchaser, Pfizer or their respective successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
Section 10.7 Public Disclosure. Notwithstanding anything
herein to the contrary, each of the parties to this Agreement hereby agrees with
the other parties hereto that, except as may be required to comply with the
requirements of any applicable Laws, and the rules and regulations of each stock
exchange upon which the securities of either of the parties is listed, no press
release or similar public announcement or communication shall, if prior to the
Closing, be made or caused to be made concerning the execution or performance of
this Agreement unless the parties shall have consulted in advance with respect
thereto.
Section 10.8 Return of Information. If for any reason
whatsoever the transactions contemplated by this Agreement are not consummated,
Purchaser or Parent, as applicable, shall promptly return to Pfizer, or an
officer of Purchaser or Parent, as
40
applicable, shall certify on behalf of Purchaser or Parent, as applicable, to
the destruction of, all books and records furnished by Pfizer, any other Seller
Corporation or any of their respective Affiliates, agents, employees, or
representatives (including all copies, summaries and abstracts, if any, thereof)
in accordance with the terms of the Confidentiality Agreement.
Section 10.9 Expenses. Except as otherwise expressly provided
in this Agreement, whether or not the transactions contemplated by this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses. Notwithstanding the foregoing, all Taxes
(including any value added taxes but excluding any income taxes) and recording
fees, in each case relating to the transfer of the Purchased Assets, shall be
paid by Purchaser.
Section 10.10 Schedules. The disclosure of any matter in any
one Schedule shall be deemed to be a disclosure for all purposes of this
Agreement to the extent that the relevance of such matters to other Sections or
other applicable Schedules is reasonably apparent to a reader on its face, but
shall expressly not be deemed to constitute an admission by Pfizer, Purchaser or
Parent, or to otherwise imply, that any such matter is material for the purposes
of this Agreement.
Section 10.11 Governing Law; Jurisdiction.
(a) 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 otherwise govern applicable principles of conflicts of Laws thereof.
(b) With respect to any suit, action or proceeding
relating to this Agreement (each, a "PROCEEDING"), each party hereto irrevocably
(i) agrees and consents to be subject to the jurisdiction of the United States
District Court for the Southern District of New York or any New York State court
sitting in New York, New York, United States of America and (ii) waives any
objection which it may have at any time to the laying of venue of any Proceeding
brought in any such court, waives any claim that such Proceeding has been
brought in an inconvenient forum and further waives the right to object, with
respect to such Proceeding, that such court does not have any jurisdiction over
such party. Purchaser and Parent hereby irrevocably designate, appoint and
empower CT Corporation System, with offices located at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as their designee, appointee and agent to
receive, accept and acknowledge for and on their behalf service of any legal
process, summons notices and documents which may be served in any such
Proceeding. If for any reason CT Corporation System is unable or unwilling to
continue to act as such designee, appointee and agent, Purchaser and Parent
agree to immediately appoint a successor designee, appointee and agent in Xxx
Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx xx Xxxxxxx reasonably acceptable to Pfizer.
41
Section 10.12 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.
Section 10.13 Headings. The heading references herein and the
table of contents hereto 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.
Section 10.14 Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any Person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
Section 10.15 Guarantee of Parent. Parent guarantees the full
and timely payment and performance of Purchaser's and any of its other
Affiliates' covenants, agreements, obligations, Liabilities, representations and
warranties under this Agreement and the Ancillary Agreements.
42
IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed as of the date first written above.
PFIZER INC.,
By: ____________________________________
Name:
Title:
XXXXX (CHEMICALS) LIMITED,
By: ____________________________________
Name:
Title:
XXXXX HOLDINGS PLC,
By: ____________________________________
Name:
Title:
43
