Exhibit 4.1
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
by and between
ELAN PHARMACEUTICALS, INC.,
and
AMARIN CORPORATION, PLC,
dated as of September 29, 1999
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 3
Section 1.01 Defined Terms......................................... 3
Section 1.02 Construction of Certain Terms and Phrases............. 8
ARTICLE II. PURCHASE AND SALE OF ASSETS 8
Section 2.01 Purchase and Sale of Assets........................... 8
Section 2.02 Security Interest..................................... 8
ARTICLE III. ASSUMPTION OF LIABILITIES 9
Section 3.01 Assumption of Assumed Contracts....................... 9
Section 3.02 No Other Liabilities Assumed.......................... 9
ARTICLE IV. PURCHASE PRICE AND PAYMENT 9
Section 4.01 Purchase Price........................................ 9
Section 4.02 Payment of Sales, Use and Other Taxes................. 10
Section 4.03 Title................................................. 10
ARTICLE V. DELIVERIES 10
Section 5.01 Deliveries By Seller.................................. 10
Section 5.02 Deliveries by Buyer................................... 10
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER 10
Section 6.01 Organization, Etc..................................... 10
Section 6.02 Authority of Seller................................... 11
Section 6.03 Consents and Approvals................................ 11
Section 6.04 Non-Contravention..................................... 11
Section 6.05 Financial Statements.................................. 12
Section 6.06 No Undisclosed Liabilities or Encumbrances............ 12
Section 6.07 Purchased Assets Generally............................ 12
Section 6.08 Intellectual Property Rights.......................... 12
Section 6.09 Litigation............................................ 13
Section 6.10 Compliance with Law................................... 13
Section 6.11 Contracts............................................. 13
Section 6.12 Inventory............................................. 14
Section 6.13 Regulatory Matters.................................... 14
Section 6.14 Bulk Sales............................................ 15
Section 6.15 Disclosure............................................ 15
ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF BUYER 15
Section 7.01 Corporate Organization.............................. 15
Section 7.02 Authority of Buyer.................................. 15
Section 7.03 Non-Contravention................................... 15
Section 7.04 Litigation.......................................... 15
Section 7.05 Consents and Approvals.............................. 15
Section 7.06 Disclosure.......................................... 16
ARTICLE VIII. COVENANTS OF THE PARTIES 16
Section 8.01 Non-Assertion of Intellectual Property Rights....... 16
Section 8.02 Cooperation......................................... 16
Section 8.03 Notification of Certain Matters..................... 17
Section 8.04 Adverse Events...................................... 17
Section 8.05 Transition Services................................. 17
Section 8.06 Assignment of Contracts............................. 18
Section 8.07 Marketing and Promotion of Phrenilin Products....... 18
Section 8.08 Insurance........................................... 18
Section 8.09 Midrin Negotiation Right............................ 18
Section 8.10 Pre-Closing Purchase Orders......................... 19
ARTICLE IX. ACTIONS BY THE PARTIES ON AND AFTER THE CLOSING DATE 19
Section 9.01 Survival of Representations, Warranties, Etc........ 19
Section 9.02 Indemnification..................................... 19
Section 9.03 Covenant not to Compete............................. 20
ARTICLE X. MISCELLANEOUS 20
SECTION 10.01 Confidentiality..................................... 20
Section 10.02 Survival............................................ 21
Section 10.03 Public Statements................................... 21
Section 10.04 Notices............................................. 22
Section 10.05 Entire Agreement.................................... 22
Section 10.06 Waiver.............................................. 22
Section 10.07 Amendment........................................... 23
Section 10.08 Third Party Beneficiaries........................... 23
Section 10.09 Assignment Binding Effect........................... 23
Section 10.10 Headings............................................ 23
Section 10.11 Severability........................................ 23
Section 10.12 Governing Law....................................... 23
Section 10.13 Expense............................................. 24
Section 10.14 Counterparts........................................ 24
Section 10.15 Schedules, Exhibits and Other Agreements............ 24
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This Amended and Restated
Asset Purchase Agreement (this "Agreement") is
made and entered into as of September 29, 1999 by and between Amarin
Corporation, PLC, a United Kingdom public limited company ("Buyer") and Elan
Pharmaceuticals, Inc., a
Delaware corporation ("Seller"). Buyer and Seller may
sometimes hereinafter be referred to as a "Party" or collectively as the
"Parties."
WHEREAS, Buyer was formerly known as Ethical Holdings PLC ("Ethical"),
and Seller is the successor by assignment of the assets and liabilities of
Carnrick Laboratories, Inc. ("Carnrick");
WHEREAS, Ethical and Carnrick entered into a License, Distribution and
Security Agreement dated September 29, 1999 (the "LDS Agreement") involving
the Purchased Assets;
WHEREAS, Buyer and Seller desire to amend and restate the LDS Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the parties
intending to be legally bound do hereby agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following
defined terms have the meanings described below:
(a) "Action or Proceeding" means any action, suit, proceeding,
arbitration, Order, inquiry, hearing, assessment with respect to fines or
penalties or litigation (whether civil, criminal, administrative, investigative
or informal) commenced, brought, conducted or heard by or before, or otherwise
involving, any Governmental or Regulatory Authority.
(b) "Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person. "Control" and,
with correlative meanings, the terms "controlled by" and "under common
control with" means the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract, resolution, regulation or otherwise.
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(c) "Assets" of a Person means all assets and properties of any kind,
nature, character and description (whether real, personal or mixed, whether
tangible or intangible, whether absolute, accrued, contingent, fixed or
otherwise and wherever situated), including the goodwill related thereto,
operated or owned by such Person, including cash, cash equivalents, accounts
and notes receivable, chattel paper, documents, instruments, general
intangibles, real estate, equipment, inventory, goods and Intellectual Property.
(d) "Assumed Contracts" means those Contracts set forth on Schedule
1.01(d) hereto that are assigned by Seller to Buyer pursuant to Section 2.01;
provided, however, that in the event that Seller is not able to obtain any
consents necessary to, or otherwise is not able to, assign any such Contract
within the time provided therefor, such Contract shall not be deemed to be an
Assumed Contract.
(e) "Business Day" means a day other than Saturday, Sunday or any day on
which banks located in the State of
Delaware are authorized or obligated to
close.
(f) "Closing Date" means September 29, 1999.
(g) "Contract" means any and all written commitments, contracts, licenses,
purchase orders, indentures, debentures, notes, letters of credit or other
agreements.
(h) "Default" means (i) a material breach of the obligations of a party
hereunder, including Buyer's failure to comply with Section 4.01(d) hereof;
(ii) acknowledgement of insolvency by a party, or the filing by or against a
party or its assets of a petition in bankruptcy, reorganization, liquidation,
receivership, assignment for the benefit of creditors or the like, which is not
dismissed unconditionally within sixty (60) days of such acknowledgement or
filing.
(i) "Encumbrance" means any mortgage, pledge, assessment, security
interest, deed of trust, lease, lien, adverse claim, levy, charge or other
encumbrance of any kind, or any conditional sale or title retention agreement
or other agreement to give any of the foregoing in the future, or any default
with respect to any order or unsatisfied judgement.
(j) "FDA" means the United States Food and Drug Administration and any
successor thereto.
(k) "Financial Statements" means the historical financial and other
information relating to the Products attached hereto on Schedule 6.05.
(l) "GAAP" means, with respect to a Person, generally accepted accounting
principles consistently applied in accordance with past practice of such Person.
(m) "Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any state, county, city or other political subdivision
thereof or any other similar national or multinational body.
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(n) "Intellectual Property" of any Person means any or all of the following
and all rights in, arising out of, or associated therewith: (i) Patents; (ii)
Know-how; (iii) copyrights, copyrights registrations and applications therefor,
and all other rights corresponding thereto throughout the world; (iv) industrial
designs and any registrations and applications therefor throughout the world;
(v) brand names, trade names, trade dress, logos, common law trademarks and
service marks, trademark and service xxxx registrations and applications
therefor throughout the world; (vi) databases and data collections and all
rights therein throughout the world; and (vii) any similar or equivalent rights
to any of the foregoing anywhere in the world.
(o) "Inventory" means all quantities of the Products and of
work-in-progress, raw materials, samples and marketing materials with respect
thereto (including film, artwork, and other media associated copyrights and
other intellectual property rights therein) owned by Seller as of the Closing
Date, including all quantities of Product for which purchase orders were issued
by or on behalf of Seller prior to the Closing Date (the "Pre-Closing Purchase
Orders").
(p) "Know-how" means all information and materials controlled, possessed or
owned by Seller, including technical knowledge, expertise, skill, practice,
inventions, procedures, formulae, trade secrets, confidential information,
analytical methodology, processes, preclinical, clinical, stability and other
data, toxicological information, market studies and all other experience and
know-how in tangible or intangible form, whether patented, patentable or
otherwise.
(q) "Knowledge" means any information that is known, or reasonably should
have been known, by Seller, Carnrick or any of their respective directors,
officers or managers.
(r) "Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including but not limited to any liability for Taxes.
(s) "Line Extension" means those improvements or follow-on products with
respect to the Phrenilin Products and the Non-Phrenilin Products set forth on
Schedule 6.13(A).
(t) "Material Adverse Effect" means a material adverse effect, whether
individually or in the aggregate, (i) on the Purchased Assets or the business,
operations, Assets, Liabilities or prospects with respect thereto, or (ii) on
the ability of Seller to consummate the transactions contemplated hereby.
(u) "Net Sales" means the gross invoiced sales sold or commercially
disposed of for value to a third party by Buyer or its Affiliates or
sublicensees, after deducting (i) discounts, including cash discounts, customary
trade allowances or rebates actually taken or allowed; (ii) credits or
allowances given or made for rejection, recall or return of previously sold
Products actually taken or allowed; (iii) any Tax or government charge
(including any tax such as a value added or similar tax or government charge
other than an income tax) levied on the sale, transportation or delivery of a
Product and borne by the seller thereof; and (iv) packaging,
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freight insurance and customs, duties and brokerage fees on shipments of
Products actually paid or incurred by Buyer or its Affiliates or sublicensees.
(v) "Non-Phrenilin Products" means Arnen, Exgest LA, Motofen, Bontril
PDM, Bontril Slow Release, Sinulin, Nolahist, Propagest, Salflex, Capital &
Codeine Suspension, Hydrocet, Nolamine and Theo-X.
(w) "Order" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
(x) "Ordinary Course of Business" of any Person means such action that is
consistent with the past practices of such Person, as applicable, and is taken
in the ordinary course of the normal day-to-day operations of such Person.
(y) "Patent" means any patents, provisional patent applications, patent
applications and similar instruments (including any divisions, continuations,
continuations-in-part, reissues, renewals, extensions or the like of any such
patent, application or instrument) as well as any foreign equivalents thereof
(including certificates of invention and any applications therefor).
(z) "Permits" means licenses, permits, certificates of authority,
authorizations, approvals, registrations and similar consents granted or issued
by any Governmental or Regulatory Authority with respect to the Products other
than investigational drug applications ("IND's"), new drug applications
("NDA's") or abbreviated new drug applications ("ANDA's").
(aa) "Person" means any natural person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory Authority.
(bb) "Phrenilin Products" means Phrenilin, Phrenilin Forte, Phrenilin with
Ibuprofen or Aspirin, Phrenilin & Codeine, and Phrenilin with Caffeine and
Codeine.
(cc) "Phrenilin Royalty" means a payment equal to eight percent (8%) of the
Net Sales of the Phrenilin Products.
(dd) "Pre-Closing Purchase Orders" shall have the meaning set forth in
Section 1.01(p) hereof.
(ee) "Products" means the Phrenilin Products, the Non-Phrenilin Products
and the Line Extensions.
(ff) "Purchased Assets" means the Assets set forth on Schedule 6.07(a).
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(gg) "Registered Intellectual Property" means all United States,
international and foreign: (i) Patents; (ii) registered trademarks,
applications to register trademarks, intent-to-use applications, or other
registrations or applications related to trademarks; (iii) registered
copyrights and applications for copyright registration; and (iv) any other
Intellectual Property that is the subject of an application, certificate,
filing, registration or other document issued, filed with, or recorded by any
state, government or other public legal authority.
(hh) "Regulatory Documentation" shall mean any and all (i) regulatory
filings, including investigational drug applications ("IND's"), new drug
applications ("NDA's") and abbreviated new drug applications ("ANDA's")
together with and supporting documents, clinical studies and tests, including
any such filings, Permits, documents, studies and tests related to the Products
and any improvements thereto, and (ii) records maintained under Good
Manufacturing Practices ("GMPs") or other record keeping or reporting
requirements of the FDA, the Environmental Protection Agency, the Occupational
Health and Safety Administration, the Nuclear Regulatory Commission or any
other United States or foreign regulatory authorities, including all
investigational new drug applications, new drug applications, abbreviated new
drug applications, (including any application withdrawals or expected
withdrawals of any of the foregoing), drug master files, FDA approvals for
export, FDA warning letters, FDA Notice of Adverse Finding letters, FDA audit
reports (including any comments on such reports), other correspondence with
regulatory agencies (registrations and licenses, regulatory drug lists,
advertising and promotion documents), adverse event files, IND safety reports,
complaint files and manufacturing records (as well as any foreign equivalents
of the foregoing), with respect thereto.
(ii) "Royalty Term" means the period from the date the cumulative Net
Sales of the Phrenilin Products after the Closing Date (the "Royalty Start
Date") exceeds Ten Million Dollars ($10,000,000.00) through the earlier of (i)
the tenth (10th) anniversary of the Royalty Start Date, and (ii) the date the
cumulative Net Sales of the Phrenilin Products after the Closing Date reaches
Ninety-Five Million Dollars ($95,000,000.00).
(jj) "Seller Intellectual Property" means (i) the Intellectual Property
set forth on Schedule 6.08 (a), (ii) any other Intellectual Property owned,
controlled or possessed by or licensed to Seller that relates to the Products,
or to which Seller otherwise has rights; provided, however, that the foregoing
shall not include the right to use the name or logo of Seller or any of
Affiliates, and (iii) all rights with respect thereto.
(kk) "Tax" means any income, alternative or add-on minimum tax, sales,
use, ad valorem, transfer, franchise, license, withholding, payroll,
employment, excise, severance, stamp tax, custom or duty or similar assessment
imposed by any governmental, regulatory or administrative entity or agency
responsible for the imposition of any such tax; (ii) any Liability for the
payment of any amounts of the type described in (i) as a result of being any
affiliated, consolidated, combined, unitary or other group for any Taxable
period; and (iii) any Liability for the payment of any amounts of the type
described in (i) or (ii) as a result of any express or implied obligation to
indemnify any other person.
(ll) "Territory" means worldwide.
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(mm) "Transition Period" means the period commencing on the Closing Date
and ending on the first anniversary thereof, or for such longer period as the
parties may mutually agree in writing.
SECTION 1.02 CONSTRUCTION OF CERTAIN TERMS AND PHRASES. Unless the context
of this Agreement otherwise requires: (a) words of any gender include the other
gender; (b) words using the singular or plural number also include the plural
or singular number, respectively; (c) the terms "hereof," "herein," "hereby"
and derivative or similar words refer to this entire Agreement; (d) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; (e) the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or"; and (f) the term
"including" means "including without limitation." Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless Business
Days are specified. All accounting terms used herein and not expressly defined
herein shall have the meanings ascribed to them under GAAP.
ARTICLE II. PURCHASE AND SALE OF ASSETS
SECTION 2.01 PURCHASE AND SALE OF ASSETS. Subject to the terms and
conditions of this Agreement, as of the Closing Date, Seller shall sell,
transfer, convey, assign and deliver (or shall cause to be sold, transferred,
conveyed, assigned and delivered) to Buyer, and Buyer shall purchase, acquire
and accept (or shall cause to be purchased, acquired or accepted) from Seller,
the Purchased Assets. Seller shall use reasonable efforts and Buyer shall
cooperate in all reasonable respects with Seller to obtain all consents or
waivers and to resolve all impracticalities of assignments or transfers
necessary to convey the Purchased Assets to Buyer.
SECTION 2.02 SECURITY INTEREST. As Of The Closing Date Buyer shall:
(a) grant Seller a continuing first priority, secured floating security
interest, lien and charge in the Inventory and the cash or non-cash proceeds
thereof, as security for payment in full of the Deferred Payment (to the extent
of Buyer's obligation to make such Deferred Payment); and
(b) also execute, deliver and file, as the case may be, such additional
documents as may be necessary to carry out the intent of this Section 2.02,
including an expanded security agreement or other documents to reflect Seller's
security interest in the Inventory and rights in the Purchased Assets, as
Seller may reasonably request from time to time.
Upon full and complete payment by Buyer to Seller of the Deferred Payment
amount, Seller shall immediately deliver or cause to be delivered to Buyer
termination of the security interest granted by Buyer pursuant to this Section
2.02.
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ARTICLE III. ASSUMPTION OF LIABILITIES
SECTION 3.01 ASSUMPTION OF LIABILITIES. Subject to the terms and
conditions of this Agreement, as of the Closing Date, Buyer agrees to assume,
satisfy or perform when due Seller's obligations arising under or with respect
to all Assumed Contracts and such obligations are set forth in Schedule 3.01
attached hereto and are to be assumed by Buyer in connection with the closing
of this Agreement (the "Assumed Liabilities").
SECTION 3.02 NO OTHER LIABILITIES ASSUMED. Other than the Assumed
Liabilities, Buyer shall not assume or be deemed to have assumed or guaranteed,
or otherwise be responsible for any liability, obligation or claim of any
nature, whether direct or indirect, for any debt, obligations or liabilities of
Seller or any of its Affiliates relating to the Purchased Assets or otherwise,
without regard to whether such debt, obligation or liability is known, knowable,
or unknown, matured or unmatured, liquidated or unliquidated, fixed or
contingent, arising out of acts, omissions or occurrence prior to the Closing
Date or any conditions existing prior to the Closing Date, even if such actions,
omissions, or conditions continue thereafter, and regardless of whether or not
such claims are listed on any Schedule hereto. Except as and to the extent
otherwise expressly provided in this Agreement, Buyer has not agreed to pay,
shall not be required to assume and shall not have any liability or obligation,
direct or indirect, absolute or contingent, of Seller or any other Person,
without regard to whether any such liability or obligation is listed on a
Schedule hereto (the assumption of which by Buyer is not expressly provided for
in, or contemplated by, this Agreement), including any litigation pending
against the Purchased Assets or Seller or any of its Affiliates in connection
with the Purchased Assets, any liability or obligation as guarantor, surety,
co-signer, endorser, co-maker or indemnitor, any product or liability claims
relating to products manufactured, sold or shipped, or services rendered, on or
prior to the Closing Date. Without limiting the generality of the foregoing,
Seller shall remain liable for the payment of all of its Liabilities, including
any amounts owed with respect to the Pre-Closing Purchase Orders.
ARTICLE IV. PURCHASE PRICE AND PAYMENT
SECTION 4.01 PURCHASE PRICE. As consideration for the Purchased Assets,
Buyer will pay Seller total consideration in the amount of Twenty Five Million
Two Hundred Thousand Dollars ($25,200,000.00) plus the Phrenilin Royalty as
follows:
(a) Purchased Assets Except the Inventory. Two Million Dollars
($2,000,000.00) on or before December 31, 1999 as consideration for all of
the Purchased Assets except the Inventory;
(b) Inventory. Twenty Three Million Two Hundred Thousand Dollars
($23,200,000.00) as consideration for the Inventory as follows: (i) Sixteen
Million Seven Hundred Thousand Dollars ($16,700,000.00) on or before December
31, 1999 and (ii) the balance of Six Million Five Hundred Thousand Dollars
($6,500,000.00) on or before September 29, 2000 (the "Deferred Payment"); and
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(o) Phrenilin Royalty. As additional consideration for the Purchased
Assets, Buyer will pay Seller the Phrenilin Royalty, on a quarterly basis,
during the Royalty Term.
SECTION 4.02 PAYMENT OF SALES, USE AND OTHER TAXES. Seller shall be
responsible for all sales, use and other related Taxes, if any, arising out of
the sale of the Purchased Assets to Buyer pursuant to this Agreement.
SECTION 4.03 TITLE. Subject to Section 2.02, title to the Purchased
Assets shall pass to Buyer as of the Closing Date.
ARTICLE V. DELIVERIES
SECTION 5.01 DELIVERIES BY SELLER.
(a) On the Closing Date, Seller shall deliver or cause to be delivered to
Buyer, at Buyer's request:
(i) possession of all of the Purchased Assets;
(ii) executed copies of all consents and approvals then obtained by
Seller in connection with the transactions contemplated hereby
(iii) all such other assignments and other instruments as are
necessary to transfer to Buyer good and marketable title to the Purchased
Assets.
SECTION 5.02 DELIVERIES BY BUYER.
(a) On or before December 31, 1999, Buyer will deliver or caused to
deliver to Seller the consideration set forth in Sections 4.01(a) and 4.01(b).
(b) On or before September 29, 2000, Buyer will deliver the outstanding
balance of the Deferred Payment.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the Closing Date, subject to
such exceptions as may be disclosed in the Schedules hereto supplied by Seller,
which Schedules shall be deemed to be representations and warranties of Seller
as if made herein, as follows:
SECTION 6.01 ORGANIZATION, ETC. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. Seller is duly authorized to conduct its business and is in good
standing in each jurisdiction where such qualification is required except for
any jurisdiction where failure so to qualify would not have a Material Adverse
Effect. Seller has full power and authority, and holds all Permits and
authorizations necessary, to carry on its business with respect to the Products
and to own and use
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the Purchased Assets, except where the failure to have such power and authority
or to hold such Permits or authorizations would not have a Material Adverse
Effect.
SECTION 6.02 AUTHORITY OF SELLER. Seller has all necessary power and
authority and has taken all actions necessary to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Seller and constitutes a legal, valid and
binding obligation of Seller enforceable against it in accordance with its terms
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors rights generally; and (b) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
SECTION 6.03 CONSENTS AND APPROVALS. Except as set forth on Schedule 6.03,
to Seller's Knowledge, no consent, waiver, approval, Order or authorization of,
or registration, declaration or filing with, any Governmental or Regulatory
Authority or any third party is required by or with respect to Seller in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
SECTION 6.4 NON-CONTRAVENTION, The execution and delivery by Seller of this
Agreement does not, and its performance under this Agreement and the
consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the Certificate of Incorporation, Bylaws or other
organizational documents or other documents of Seller;
(b) conflict with or result in a violation or breach of any of term or
provision of any law, Order, license, statute, rule or regulation applicable to
Seller or the Purchased Assets;
(c) conflict with or result in a breach or default (or an event which, with
notice or lapse of time or both, would constitute a breach or default) under, or
result in the termination of, or accelerate the performance required by, or
cause the acceleration of the maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any security interest, lien or any other
Encumbrance upon any of the Purchased Assets under any agreement or commitment
to which Seller is a party or by which Seller or any of the Purchased Assets is
bound; or
(d) otherwise result in an imposition of any Encumbrance on the Purchased.
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SECTION 6.05 FINANCIAL INFORMATION. The Financial Information previously
delivered to Buyer by Seller and attached hereto as Schedule 6.05 (i) are true,
correct and complete in all material respects with respect to the Purchased
Assets; (ii) are in accordance with the Books and Records of Seller; (iii) have
been prepared in conformity with GAAP, and (iv) fairly represents the sales and
the gross margins with respect to the Products for the period covered hereby.
Notwithstanding the foregoing, nothing in this Section 6.05 shall be construed
as a representation or warranty by Seller to Buyer as to the potential sales or
profit potential of the Products on or after the Closing Date.
SECTION 6.06 NO UNDISCLOSED LIABILITIES OR ENCUMBRANCES. Except as
disclosed in this Agreement, to the Knowledge of Seller, there are no
Liabilities, Encumbrances or claims, nor any basis for any Liabilities,
Encumbrances or claims, against Seller relating to or affecting the Purchased
Assets, excepting only Liabilities and Encumbrances incurred in the Ordinary
Course of Business that have not had, and are not reasonably expected to result
in, individually or in the aggregate, a Material Adverse Effect on the Purchased
Assets.
SECTION 6.07 PURCHASED ASSETS GENERALLY.
(a) Schedule 6.07(a) sets forth a description of the Purchased Assets.
(b) Schedule 6.07(b) sets forth all of the material tangible Assets
constituting the Purchased Assets and to the Knowledge of Seller any and all
improvements thereto or line extensions with respect to the Products that have
been researched, investigated, developed, manufactured, sold on behalf of
Carnrick.
(c) Seller has good and marketable title to all of the Purchased
Assets, free and clear of all Encumbrances, except as disclosed in Schedule
6.07(c). The Purchased Assets include all Intellectual Property and other Assets
that are owned, licensed, controlled or as to which Seller otherwise has rights,
whether directly or indirectly, with respect to the Products.
SECTION 6.08 INTELLECTUAL PROPERTY
(a) To Seller's Knowledge, Schedule 6.08(a) lists all of the
Intellectual Property, including, without limitation, Registered Intellectual
Property, with respect to the Purchased Assets that is owned, controlled or
possessed by, or licensed to, Seller, or to which Seller otherwise has rights.
There is no Registered Intellectual Property that is owned, controlled or
possessed by or licensed to Seller or its Affiliates that relates to the
Products anywhere in the world other than the registered U.S. trademarks set
forth in Schedule 6.08(a) (the "Trademarks").
(b) To Seller's Knowledge, no Seller Intellectual Property is subject
to any Action or Proceeding or outstanding decree, Order, judgment, agreement or
stipulation restricting in any manner the use, transfer or licensing thereof by
Seller or that may affect the validity, use or enforceability of the Seller
Intellectual Property.
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(c) The Trademarks are valid and subsisting in the United States and all
necessary registration, maintenance and renewal fees have been paid and all
necessary documents and certificates have been filed with the United States
Patent and Trademark Office.
(d) To Seller's Knowledge, the Purchased Assets as currently used by Seller
have not, do not and will not infringe or misappropriate the Intellectual
Property of any third party or constitute unfair competition or trade practices
under the laws of the United States.
(e) To Seller's Knowledge, no Person has or is infringing or
misappropriating the Seller Intellectual Property in a manner that will have a
material adverse effect on the Purchased Assets.
(f) To Seller's Knowledge, Seller has not transferred ownership of, any
right to, or granted any license (exclusive or non-exclusive) with respect to,
any Intellectual Property that is or was Seller Intellectual Property to any
Person.
To Seller's knowledge, Carnrick has taken reasonable steps to protect its
rights in its confidential information or trade secrets related to any of the
Purchased Assets.
SECTION 6.09 LITIGATION. Except as set forth in Schedule 6.09, there are no
Actions or Proceedings pending or, to the Knowledge of Seller, threatened
against, relating to, or otherwise affecting (a) the Purchased Assets; (b) this
Agreement; or (c) the transactions contemplated by this Agreement.
SECTION 6.10 COMPLIANCE WITH LAW. Except as set forth on Schedule 6.10, no
Product has been developed, manufactured or commercialized by or on behalf of
Seller outside of the United States. Seller is in compliance with all applicable
laws, statutes, Orders, ordinances and regulations, whether federal, state or
local, except where failure to comply, in each instance and in the aggregate,
could not be expected to result in a Material Adverse Effect on the Purchased
Assets.
SECTION 6.11 CONTRACTS.
(a) To Seller's Knowledge, Schedule 6.11 contains a complete list of all
material Contracts related to the Purchased Assets including all Contracts with
managed care organization and manufacturers of the Products.
(b) To Seller's Knowledge, each of the foregoing contracts is in full force
and effect and constitutes a legal, valid and binding agreement, enforceable in
accordance with its terms and there is no known violation or breach of or
default under, either with the lapse of time, giving of notice or both, any such
Contract by any Person.
(c) Except as set forth on Schedule 6.11, no party to an Assumed Contract
has notified Seller of an intention to terminate or substantially alter an
existing business relationship with Seller or, after the Closing Date, Buyer or
to refuse to provide any consents required to assign the Assumed Contracts to
Buyer or otherwise effect the transactions
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contemplated by this Agreement nor has any licensor of Seller Intellectual
Property notified Seller of an intention to terminate or alter the rights
governed by such license.
SECTION 6.12 INVENTORY. Schedule 6.12 sets forth a description of the
Inventory as of the Closing Date.
SECTION 6.13 REGULATORY MATTERS.
(a) Schedule 6.13(a) contains a complete and correct list of the Products
and to the Knowledge of Seller any and all improvements thereto or line
extensions thereof that have been researched, investigated, developed,
manufactured, sold or are in the process of being researched, investigated,
developed, manufactured or sold by or on behalf of Seller or Carnrick.
(b) Schedule 6.14(b), to the Knowledge of Seller, contains a complete and
correct list of all NDA's and ANDA's related to the Purchased Assets, Seller has
provided Buyer with true and complete copies of such filings.
(c) To the Knowledge of Seller, with respect to the Purchased Assets, there
have been no (i) product recalls, field corrective activity, warning letters,
Notice of Adverse Finding letters, audit reports or administrative actions by
the FDA or any similar action by any other Governmental or Regulatory Authority
or (ii) withdrawals or expected withdrawals.
(d) To the Knowledge of Seller all NDA's and ANDA's for the Products are
currently effective and valid and have been validly issued. Neither the
execution, delivery or performance of this Agreement nor the mere passage of
time will have any effect on the continued validity or sufficiency of such
filings. There is no Action or Proceeding by any Governmental or Regulatory
Authority pending or, to the Knowledge of Seller, threatened with respect to the
Regulatory Documentation.
(e) To the Knowledge of Seller, neither Carnrick nor any of their employees
has, with respect to the Purchased Assets or the business with respect thereto,
(i) been disbarred or received notice of action or threat of action with respect
to debarment under the provisions of the Generic Drug Enforcement Act of 1992,
21 U.S.C. Section 335(a) and (b); (ii) been subject to any other FDA enforcement
Action or Proceeding, or (iii) used in any capacity the services of any Person
that has been subject to debarment or any other FDA enforcement action or
proceeding.
(f) All of the Products included in the Inventory, and to Seller's
Knowledge all of the Products manufactured by or on behalf of Carnrick, have
been manufactured in accordance with FDA requirements and they (i) have been
manufactured, held and shipped in accordance with applicable GMPs and all other
applicable law; (ii) have been manufactured, held and shipped in accordance with
the Products' specifications; (iii) have not been adulterated or misbranded
under the U.S. federal Food, Drug, and Cosmetic Act, as amended, or under any
other applicable law; and (iv) may be introduced into interstate commerce
pursuant thereto.
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SECTION 6.14 BULK SALES. Seller has complied with the bulk sales and
similar requirements in effect in all states in which Seller owns Purchased
Assets.
SECTION 6.15 DISCLOSURE. No representation or warranty by Seller in this
Agreement contains any untrue statement of material fact.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 7.01 CORPORATE ORGANIZATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Buyer is duly authorized to conduct its
business and is in good standing in each jurisdiction where such qualification
is required except for any jurisdiction where failure so to qualify would not
have a Material Adverse Effect. Buyer has full power and authority and holds
all Permits and authorizations necessary, to carry on its business with respect
to the Products and to own and use the Purchased Assets, except where the
failure to have such power and authority or to held such Permits or
authorizations would not have a Material Adverse Effect.
SECTION 7.02 AUTHORITY OF BUYER. Buyer has all necessary power and
authority and has taken all actions necessary to enter into this Agreement, and
to carry out the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes a legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with its
terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally; and (b) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
SECTION 7.03 NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will violate any provisions of Buyer's organizational documents or violate any
statute or law or any judgment, decree, Order, regulation or rule of any court
or governmental authority or result in a breach of the material terms,
conditions or provisions of, or constitute a default under, any material
instrument, agreement, mortgage, judgment, Order, award, decree or other
material restriction to which Buyer is a party or by which Buyer is bound.
SECTION 7.04 LITIGATION. There are no Actions or Proceedings pending (or
to the Knowledge of Buyer threatened) against, relating to, or otherwise
affecting (a) this Agreement; or (b) the transactions contemplated by this
Agreement.
SECTION 7.05 CONSENTS AND APPROVALS. To Buyer's knowledge, no consent,
waiver, approval, Order or authorization of, or registration, declaration or
filing with, any Governmental or Regulatory Authority or any third party is
required in connection with the execution and delivery by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby.
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SECTION 7.06 DISCLOSURE. No representation or warranty by Buyer in this
Agreement and no statement contained in any document, certificate or other
writing furnished or to be furnished by Buyer to Seller or any of their
representatives pursuant to the provisions hereof contains or will contain any
untrue statement of material fact or omits or will omit to state any material
fact necessary to make the statements herein or therein, in light of the
circumstances under which it was made, not misleading. As of the Closing Date,
Buyer does not have Knowledge, through its due diligence or otherwise, of any
material fact which would cause any of the representations, warranties or
statements made by or on behalf of the Seller herein to be materially false or
misleading or to omit any material fact necessary in order to make such
representation, warranty or statement not materially false or misleading.
ARTICLE VIII. COVENANTS OF THE PARTIES
SECTION 8.01 NON-ASSERTION OF INTELLECTUAL PROPERTY RIGHTS. Seller agrees
that neither it nor any Affiliate will assert against Buyer anywhere in the
world, under any patent, trade secret, copyright, or any other proprietary right
or Intellectual Property right owned or controlled by Seller, a claim that any
Product, or any process used in the manufacture or commercialization thereof,
infringes such patent, trade secret or copyright.
SECTION 8.02 COOPERATION. Each Party shall reasonably cooperate with the
other in preparing and filing all notices, applications, reports and other
instruments and documents in connection with the transactions contemplated by
this Agreement. Further, Seller shall from time to time, at the request of Buyer
and without further cost or expense to Buyer, execute and deliver such
instruments of conveyance and transfer and take such other actions as Buyer may
reasonably request, in order to more effectively consummate the transactions
contemplated hereby and to vest in Buyer good and marketable title to the
Purchased Assets. This cooperation will include, but not be limited to, Seller's
reasonable cooperation in the efforts of Buyer to obtain any third-party
consents and approvals required for it to be able to own the Purchased Assets.
In addition:
(a) For a period of twelve (12) months after the Closing Date, Seller
shall use commercially reasonable efforts to make available to Buyer, at Buyer's
expense, for inspection and copying, at reasonable times after request therefor,
any records and documents specifically related to the Purchased Assets retained
by or in the control of Seller.
(b) Upon the request of Buyer and at Buyer's expense, Seller shall use
commercially reasonable efforts to make available, from time to time as
reasonably required, employees, consultants and agents of Seller or who are
otherwise familiar with the Purchased Assets and are employed or retained
Seller, for the purposes of giving testimony or such other assistance as Buyer
may reasonably need for the preparation and defense or prosecution of any
Actions or Proceedings regarding the Purchased Assets with respect to which
Buyer is responsible hereunder.
(c) Without limitation to the foregoing, upon written request of
Seller, at Seller's expense and not more than once in a calendar year, Buyer
shall permit Seller or its designated Representative to have access during
normal business hours and upon reasonable
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prior written notice, to such of the records of Buyer or its Affiliates as may
be reasonably necessary to verify the accuracy of the information related to
the Phrenilin Royalty hereunder for any calendar year ending not more than
twenty-four (24) months prior to the date of such request. Seller or its
designated Representative shall disclose to Buyer whether the Phrenilin Royalty
payments made by Buyer are correct or incorrect and the specific details
concerning any discrepancies. No other information shall be provided to Seller
pursuant to this Section 8.02(c).
SECTION 8.03 NOTIFICATION OF CERTAIN MATTERS. During the Transition Period
each party shall give prompt notice to the other Party of (a) the discovery of
any material fact of which the notifying party has Knowledge which causes such
Party to conclude that any of the representations, warranties or statements
made by or on behalf of such party herein or in any other document delivered
pursuant to this Agreement, may be materially false or misleading; (b) the
occurrence or the failure to occur of any material event which occurrence or
failure causes, or reasonably could be expected to cause, any representation or
warranty made by or on behalf of such party to be materially untrue or
inaccurate; or (c) any failure of the notifying party to comply with or satisfy
any material covenant, condition or agreement to be complied with or satisfied
by or on behalf of such party hereunder. Each party shall use commercially
reasonable efforts to remedy any failure on its part to materially comply with
or materially satisfy any covenant, condition or agreement to complied with or
satisfied by or on behalf of such party hereunder.
SECTION 8.04 ADVERSE EVENTS. Each Party shall give the other Party
immediate notice, which shall be promptly confirmed in writing, of any
occurrence that involves any material complaint about the safety or
effectiveness of any Product, including a claim for death or injury following
administration of the Product (that is plausibly related to the administration
of the Product). Further, each Party shall give the other Party prompt written
notice of any occurrence that involves any other matter arising out of this
Agreement that must be reported to a Governmental or Regulatory Authority.
SECTION 8.05 TRANSITION SERVICES.
(a) Without limitation to its other obligations hereunder, Seller shall,
at the request of Buyer, provide the services during the Transition Period
(collectively, the "Transition Services") set forth on Schedule 8.04.
(b) Seller shall make available to Buyer, at no additional expense, one
(1) office at Carnrick's New Jersey facility and, during regular business
hours, provided however, that (i) Buyer shall not use such address for any
official purpose in connection with its business activities, including but not
limited to, in connection with its corporate organization, the Regulatory
Documentation, any Permit, the Intellectual Property, the filing and payment of
Taxes, the Assumed Contracts or any business relationship with a third party
vendor, (ii) Buyer shall install its own telephone lines with independent
voicemail or messaging services and provide for its own office equipment.
(c) In consideration for the performance of the Transition Services, Buyer
shall pay to Seller, on a quarterly basis, a fee equal to three percent (3%) of
the Net Sales of the
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Products during any period in which Transition Services were provided in such
quarter. In addition, Buyer shall reimburse Seller for any out-of-pocket
external costs, and a reasonable allocation of employee expense and internal
costs, reasonably incurred by Seller in performing (i) any services required by
Buyer that are outside the Ordinary Course of Business of Carnrick with respect
to distribution of the Products or (ii) any event related to the distribution of
the Products outside of the Ordinary Course of Business of Carnrick, such as a
recall, except to the extent that such services are caused by Seller or its
Representatives.
SECTION 8.06 ASSIGNMENT OF CONTRACTS AND SELLER REGISTERED INTELLECTUAL
PROPERTY. As soon as reasonably practicable after the Closing Date, Seller shall
use reasonable commercial efforts to diligently assign and seek consent to the
assignment of all Assumed Contracts and Seller Registered Intellectual Property.
SECTION 8.07 MANUFACTURING, MARKETING AND PROMOTION OF THE PRODUCTS. From
the Closing Date to the date Buyer has paid in full the Deferred Payment to
Seller, Buyer shall (a) use commercially reasonable efforts to (a) market and
promote the Phrenilin Products in the United States, and in such other countries
in the Territory as Buyer may determine in its sole discretion, and (b) comply
with all applicable laws and regulation in marketing and promoting the Products.
SECTION 8.08 INSURANCE. From the Closing Date to the Delivery Date, Buyer
shall maintain insurance coverage with respect to the Products, including
Product Liability Insurance in the amount of not less than $1 million per
occurrence and $5 million, with reputable companies as required by applicable
law and in such amounts as is customary with respect to similarly situated
companies.
SECTION 8.09 MIDRIN NEGOTIATION RIGHT. If Seller decides at any time during
the eighteen (18) months following the Closing Date to divest itself of Midrin
to a third party other than an Affiliate, Seller shall notify Buyer in writing
of such intention and Buyer shall thereafter have a thirty (30) day period to
submit an offer to Seller to acquire Midrin. Buyer shall submit such an offer to
Seller and Seller shall negotiate and in good faith with Buyer with respect to
such offer for a period of thirty (30) days after receipt of Buyer's offer,
provided that any such offer is on commercially reasonable terms with valuation
and other terms and conditions consistent with an independent third party
transaction of a similar product for a similar market and sales history. If
Buyer and Seller are unable to reach such an agreement with respect to Midrin
during such thirty (30) day period, Seller shall have the right to transfer
Midrin to any other Person.
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SECTION 8.10 PRE-CLOSING PURCHASE ORDERS. Seller shall pay any amounts
owing with respect to the Pre-Closing Purchase Orders as and when such amounts
become due.
ARTICLE IX. ACTIONS BY THE PARTIES ON AND AFTER THE CLOSING DATE
SECTION 9.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. The
representations, warranties and covenants of Seller contained in or made
pursuant to this Agreement or any certificate, document or instrument delivered
pursuant to or in connection with this Agreement or the transactions
contemplated hereby shall, notwithstanding any investigation, analysis or
evaluation by Buyer or its designees of the Purchased Assets, however subject
to the representation of Buyer set forth in Section 7.06, survive the execution
and delivery of this Agreement for a period of thirty-six (36) months
following the Closing Date.
SECTION 9.02 INDEMNIFICATION.
(a) Seller shall indemnify, reimburse, defend and hold harmless Buyer,
and its officers, directors, employees, agents, successors and assigns from and
against any and all costs, losses, Liabilities, damages, lawsuits,
deficiencies, claims and expenses, including interest, and penalties actually
paid or incurred, including reasonable attorneys fees and all amounts
reasonably paid in investigation, defense or settlement of any of the foregoing
(collectively, "Damages"), in connection with, arising out of, resulting from
or incident to (i) any breach by Seller or Carnrick of any of their respective
covenants, representations, or warranties made in or pursuant to this
Agreement; (ii) Seller's or Carnrick's conduct of the business with respect to
the Purchased Assets prior to the Closing Date; (iii) Actions or Proceedings
set forth in Schedule 6.09; (iv) all defects, latent or otherwise, relating to
the Inventory as of the Closing Date; (v) negligent or intentional acts or
omissions of Seller, Carnrick or their respective Representatives on or after
the Closing Date, in performing the Transition Services; or (vi) the failure of
Seller to pay, perform and discharge any Liabilities of Seller or Carnrick that
are not Assumed Liabilities.
(b) Buyer shall indemnify, defend and hold harmless Seller and its
respective officers, employees, agents, successors and assigns from and against
any and all Damages incurred in connection with, arising out of, resulting
from or incident to (i) any breach by Buyer of any covenant, representation or
warranty made by Buyer in or pursuant to this Agreement; (ii) the failure of
Buyer to assume, pay, perform and discharge any Assumed Liabilities as and when
due; (iii) the failure of Buyer to pay the Deferred Payment as provided in this
Agreement or (iv) except to the extent indemnified by Seller pursuant to
Section 9.02(a), the conduct of the business with respect to the Purchased
Assets on or after the Closing Date.
(c) In the event of a claim which may give rise to such a right of
indemnity, the party intending to claim indemnity shall give the indemnifying
party notice in writing as soon as practical of any such claim or lawsuit and
shall permit the indemnifying party to undertake the defense thereof at its
expense. The parties shall cooperate reasonably, including not settling or
disposing of a claim which is the subject of indemnity without the consent of
the indemnifying party, not to be unreasonably withheld.
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SECTION 9.03 COVENANT NOT TO COMPETE. Seller hereby agrees that during the
three (3) year period beginning on the Closing Date, Seller shall not develop or
commercialize any product that contains one or more of the therapeutically
active ingredients contained in the Products. Notwithstanding the foregoing,
this Section 9.03 shall not apply to (a) any products that Seller or any of its
Affiliates acquires in connection with a bona fide merger with, or acquisition
of substantially all of the assets of, a Person that is not principally involved
in the development or commercialization of one or more competing products, and
(b) any bona fide services provided by an Affiliate of Seller with respect to
competing products owned by a third part. If any restrictions contained in this
Section 9.03 shall be deemed to be invalid or unenforceable by reason of the
extent, duration and geographic scope thereof or otherwise, then Buyer shall
have the right to reduce such extent, duration and geographic scope or other
provision hereof, and in their reduced form such restrictions shall then be
enforceable in the manner contemplated hereby.
SECTION 9.04 Buyer hereby agrees that during the three (3) year period
beginning on the Closing Date, Buyer shall not, without the prior written
consent of Seller, solicit, recruit, nor offer employment to any employee,
officer, or director of Seller, Carnrick or any Affiliate.
ARTICLE X. MISCELLANEOUS
SECTION 10.01 CONFIDENTIALITY.
(a) For a period of five (5) years after the Closing Date, Seller
shall not without the prior written consent of Buyer, disclose to any Person
confidential information relating to or concerning Buyer, the Purchased Assets
or the Transition Services (the "Buyer Information"), except to such
representatives of Seller who reasonably need to know such information for
purposes of Taxes, accounting, pending litigation and other matters necessary in
respect of Seller's ownership, prior to the Closing Date of the Purchased
Assets, or performance, prior to the end of the Transition Period, of its
obligations hereunder. In the event that Seller is requested or required by
documents subpoena, civil investigative demand, interrogatories, requests for
information, or other similar process to disclose any information with respect
to the Purchased Assets or Transition Services, Seller shall provide Buyer with
prompt notice of such request or demands or other similar process so that Buyer
may seek an appropriate protective order.
(b) For a period of five (5) years following the Closing Date, Buyer
shall not, without the prior written consent of Seller, disclose to any Person
confidential information relating to or concerning Seller or the terms of this
Agreement, except to such representatives of Buyer who reasonably need to know
such information for purposes of conducting the business with respect to the
Purchased Assets or with respect to Taxes, accounting, pending litigation and
other matters necessary in respect of Buyer's performance of its obligations
hereunder. In the event that Buyer is requested or required by documents
subpoena, civil investigative demand, interrogatories, requests for information,
or other similar process to disclose any information with respect to the
Transition Services, Buyer shall provide Seller with prompt notice of such
request or demands or other similar process so that Seller may seek an
appropriate protective
-20-
order. Notwithstanding the foregoing, in no event shall this Section 10.01(b)
apply to any Buyer Information.
(c) The term confidential information as used in this Section 10.01 does
not include information which (i) at the time of disclosure is in the public
domain or thereafter becomes part of the public domain by publication or
otherwise through no act of the party receiving such information; (ii) the party
receiving such information can establish was in its possession prior to the
time of the disclosure; (iii) is independently made available as a matter of
right to the party receiving such information by a third party who is not in
violation of a confidential relationship with the other party; or (iv) is
developed by a party independently of the confidential information received from
the other party as shown by its written records; provided however, that except
with respect to clause (i) above, Buyer Information shall be deemed to be
confidential information of Buyer for all purposes hereunder.
(d) For purposes of this Section 10.01, each of Seller and Buyer shall
include their respective directors, officers, employees, attorneys and
accountants.
Each party agrees and acknowledges that the unauthorized use or disclosure
of any confidential information by it in violation of this Agreement may cause
severe and irreparable damage to the other party. In the event of any violation
of this Section 10.01, the parties agree that the non-violating party shall be
entitled to seek from any court of competent jurisdiction injunctive relief,
whether preliminary or permanent, as well as any other relief permitted by
applicable law.
SECTION 10.02 SURVIVAL. Any termination of this Agreement shall not affect
the rights of either party that accrued as of the date of termination. Articles
VI, VII, VIII and IX and Section 2.02, 3.02, 5.03, 11.04, 11.08 and 11.12 and
this Section 10.02 shall survive the termination of this Agreement.
SECTION 10.03 PUBLIC STATEMENTS. Except as otherwise required by law,
Seller and Buyer agree that neither Party shall issue any press releases or
otherwise make public statements with respect to the transactions contemplated
by this Agreement without first obtaining the prior written consent of the other
Party.
-21-
SECTION 10.04 NOTICES. All notices, request and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission with
answer back confirmation or mailed (postage prepaid by certified or registered
mail, return receipt requested) or by overnight courier to the parties at the
following addresses or facsimile numbers:
If to Buyer to: Amarin Corporation, Plc
Gemini House, Xxxxxxxxxxx'x Walk
Xxx, Cambs. XX0
Xxxxxxx
If to Seller to: Elan Pharmaceuticals, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: VP, Commercial and Legal Affairs
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 10.04, be deemed given
upon receipt; (ii) if delivered by facsimile to the facsimile number as
provided in this Section 10.04, be deemed given upon receipt by sender of the
answer back confirmation; and (iii) if delivered by mail in the manner
described above or by overnight courier to the address as provided in this
Section 10.04, be deemed given upon receipt (in each case regardless of whether
such notice, request or other communication is received by any other Person to
whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section 10.04). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
SECTION 10.05 ENTIRE AGREEMENT. This Agreement (and all Exhibits and
Schedules attached hereto and all other documents delivered in connection
herewith) supersedes all prior discussions and agreements among the parties with
respect to the subject matter hereof, including the LDS Agreement, and contains
the sole and entire agreement among the parties hereto with respect to the
subject matter hereof.
SECTION 10.06 WAIVER. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party hereto of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
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SECTION 10.07 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
SECTION 10.08 THIRD PARTY BENEFICIARIES. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnity under Section 9.02.
SECTION 10.09 ASSIGNMENT; BINDING EFFECT. This Agreement may not be
assigned by either party without the prior written consent of the other party,
which consent shall not to be unreasonably withheld, and any attempt to do so
will be void; provided, however, that (a) either Party shall be free to assign
any rights and obligations under this Agreement to an Affiliate, and (b) after
Buyer's full and complete satisfaction of the Deferred Payment, Buyer may freely
assign all or part of its right, title and interest in or to the Purchased
Assets, but shall in no circumstances be permitted to assign its rights with
respect to the Transition Services, in each case without the prior written
consent of the other Party. Notwithstanding the foregoing, nothing in this
provision 10.09 shall in any way impact the independent rights of Seller or any
Affiliate in their capacity as shareholders, officers, directors or creditors of
Buyer. This Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and permitted
assigns.
SECTION 10.10 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
SECTION 10.11 SEVERABILITY. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable; (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never compromised a part hereof; (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance here from; and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar to terms to such
illegal, invalid or unenforceable provision as may be possible and reasonably
acceptable to the parties herein.
SECTION 10.12 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware applicable to
contracts executed and performed in such State, without giving effect to
conflicts of laws principles.
SECTION 10.13 EXPENSE. Except as otherwise provided in this Agreement, each
party hereto shall pay its own expenses and costs incidental to the preparation
of this Agreement and to the consummation of the transactions contemplated
hereby.
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IN WITNESS WHEREOF, this
Asset Purchase Agreement has been executed by the
parties hereto all as of the date first above written.
ELAN PHARMACEUTICALS, INC.
By: /s/ Xxxx Xxxxx
_______________________
Name: Xxxx Xxxxx
Title: President & CEO
AMARIN CORPORATION, PLC
By: /s/ Xxxx Xxxxxxx
_______________________
Name: Xxxx Xxxxxxx
Title: CEO
SCHEDULE 1.01(d)
ASSUMED CONTRACTS
1. The Contracts between Carnrick and each of the parties set forth on Exhibit
1 to this Schedule 1.01(d) related to managed care, to the extent such
agreement may be assigned by Seller and assumed by Buyer, for the period
set forth on such exhibit.
2. The Confidentiality and Product Development Agreement dated October 17,
1997 by and between Carnrick and Lannett Pharmaceutical Co. regarding
Phrenilin CO.
3. The Confidentiality and New Product Development Agreement dated September
18, 1997 by and between Carnrick and HI-TECH Pharmacal Co. Inc. regarding a
proposed product containing Difenoxin and Atropine Sulfate.
4. The Confidentiality and New Product Development Agreement dated February
17, 1998 by and between Carnrick and HI-TECH Pharmacal Co. regarding a
proposed product containing Nolamine Liquid (phenindamine tartrate 24 mg.,
chlorpheniramine maleate 4 mg., phenylpropanolamine HCL 50 mg.).
5. The Confidentiality and New Product Development Agreement dated February
17, 1998 by and between Carnrick and HI-TECH Pharmacal Co. Inc. regarding a
proposed product containing Nollahist Liquid (phenindamine tartrate 25
mg.).
6. The Confidentiality and New Product Development Agreement dated January 24,
1996 by and between Carnrick and Paco Pharmaceutical Services, Inc.
regarding a proposed product containing, Acetaminophen & Codeine Phosphate
CAPITAL & CODEINE ORAL SUSPENSION.
7. The Mutual Non-Disclosure agreement dated October 10, 1997 by and between
Carnrick and Lannett Company, Inc. regarding a product containing aspirin,
butalbital and caffeine.
8. The Confidentiality Agreement dated May 9, 1994, as modified January 22,
1998, by and between Xxxxxxx Xxxxxxx Inc., on the one part, and Carnrick,
SST Corporation and Lannett Company, Inc., on the second part, regarding
Difenoxin Hydrochloride.
9. The Supply Agreement dated December 5, 1997 by and between Carnrick and
Mallinckrodt Chemical, Inc, Hobart regarding the manufacture and supply of
certain products, including Arnen, Bontril, Midrin, Phrenilin, Phrenilin
Forte, Propagest, Sinulin Skelaxin and Hydrocet. Assignment of this
contract requires the prior written consent of Mallinkrodt.
10. The Supply Agreement dated May 27, 1997 by and between Carnrick and Lannett
Company, Inc. regarding the manufacture and supply of certain products,
including Midrin, Motofen, Phrenilin and Phrenilin Forte. Assignment of
this contract requires the prior written consent of Lannett.
ELAN PHARMACEUTICALS, INC.
Schedule of Contract Pricing (Rebate Contracts)
Advance Paradigm Astra US Anthem
00000 XxXxxxxxx Xx. Healthcare 5545 Governor's
Exec. Plaza #, 000 Xxxxx Xxxx Xxxx Xxxxx
Xxxxx 0000 X.X. Xxx 0000 Xxxxx 000
Xxxx Xxxxxx, Blue Xxxx, PA Cincinnati, OH
MD 21031 19422 45249
------------------ ------------------- -------------- -------------
Begin Date 01/01/99 04/01/97 04/01/96
End Date Evergreen* Evergreen* none
------------------ ------------------- -------------- -------------
Amen Tablets 0000-0000-00 50
Amen Tablets 0000-0000-00 100
Amen Tablets 0000-0000-00 1000
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine Susp 0000-0000-00 480
Exgest LA Tablets 0000-0000-00 100 15.00% 10.00%
Exgest LA Tablets 0000-0000-00 500 15.00% 10.00%
Hydrocet Capsules 0000-0000-00 100 10.00%
Motofen Tablets 0000-0000-00 50
Motofen Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 000
Xxxxxxxx XX Tablets 0000-0000-00 100 0.00% 0.00%
Nolamine TR Tablets 0000-0000-00 250 0.00% 0.00%
Phrenilin Tablets 0000-0000-00 100 15.00% 10.00%
Phrenilin Tablets 0000-0000-00 500 15.00% 10.00%
Phrenilin Forte Capsules 0000-0000-00 100 15.00% 10.00%
Phrenilin Forte Capsules 0000-0000-00 500 16.00% 10.00%
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100
Salflex Tablets 750 mg 0000-0000-00 100
Salflex Tablets 750 mg 0000-0000-00 500
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
Cigna
Caremark Health Corp.-
2211 Xxxxxxx 000 Xxxxxxx
Xxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx,
XX 00000 CT 06002
------------------ ------------ ---------------
Begin Date 04/01/99 04/01/99
End Date Evergreen* 03/31/01
------------------ ------------ ---------------
Amen Tablets 0000-0000-00 50 9% to 15%
Amen Tablets 0000-0000-00 100 9% to 15%
Amen Tablets 0000-0000-00 1000 9% to 15%
Bontril PDM Tablets 0000-0000-00 100 9% to 15%
Bontril PDM Tablets 0000-0000-00 1000 9% to 15%
Bontril SR Capsules 0000-0000-00 100 9% to 15%
Capital & Codeine Susp 0000-0000-00 480 9% to 15%
Exgest LA Tablets 0000-0000-00 100 10% + $.01 to $.05/unit 9% to 15%
Exgest LA Tablets 0000-0000-00 500 10% + $.01 to $.05/unit 9% to 15%
Hydrocet Capsules 0000-0000-00 100 9% to 15%
Motofen Tablets 0000-0000-00 50 9% to 15%
Motofen Tablets 0000-0000-00 100 9% to 15%
Nolahist Tablets 0000-0000-00 100 9% to 15%
Nolahist Tablets 0000-0000-00 168 9% to 15%
Nolamine TR Tablets 0000-0000-00 100 9% to 15%
Nolamine TR Tablets 0000-0000-00 250 9% to 15%
Phrenilin Tablets 0000-0000-00 100 10% + $.005 to $.0125/unit 9% to 15%
Phrenilin Tablets 0000-0000-00 500 10% + $.005 to $.0125/unit 9% to 15%
Phrenilin Forte Capsules 0000-0000-00 100 10% + $.005 to $.0125/unit 9% to 15%
Phrenilin Forte Capsules 0000-0000-00 500 10% + $.005 to $.0125/unit 9% to 15%
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100 9% to 15%
Salflex Tablets 750 mg 0000-0000-00 100 9% to 15%
Salflex Tablets 750 mg 0000-0000-00 500 9% to 15%
Sinulin Tablets 0000-0000-00 20 9% to 15%
Sinulin Tablets 0000-0000-00 100 9% to 15%
Sinulin Tablets 0000-0000-00 168 9% to 15%
* = Evergreen clause in contract (contract is automatically renewed for
one-year periods)
Elan Pharmaceuticals Confidential 03/28/2000
Page 1
ELAN PHARMACEUTICALS, INC.
Schedule of Contract Pricing (Rebate Contracts)
General Health Alliance
Covenby Express Prescription Harvard Plan of
Corporation Scripts Programs Pilgrim Michigan
501 Corporate 14000 Riverport 61 Xxxxxxx 20 Overland 2850 West
Centre Dr. Drive Street St. Grand Blvd.
Suite 400 5th Floor
Franklin, Maryland Heights, Newark, Boston, Xxxxxxx,
XX 00000 MO 63043 NJ 67105 MA 02215-3300 MI 48202
Begin Date 01/01/98 07/01/95 03/01/97 10/01/97 09/01/93
End Date Evergreen* 12/31/99 03/31/00 Evergreen* Evergreen*
---------- ------------- ----------------- ------------ ------------- ---------------
Negotiating for renewal.
Amen Tablets 0000-0000-00 50 8.00% 10.00%
Amen Tablets 0000-0000-00 100 8.00% 10.00%
Amen Tablets 0000-0000-00 1000 8.00% 10.00%
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine
Susp 0000-0000-00 480 8.00%
Exgest LA Tablets 0000-0000-00 100 8.00% 10.00% + $.01 8.00%
to $.03/unit
Exgest LA Tablets 0000-0000-00 500 8.00% 10.00% + $.01 8.00%
to $.03/unit
Hydrocet Capsules 0000-0000-00 100 8.00%
Motofen Tablets 0000-0000-00 50 8.00%
Motofen Tablets 0000-0000-00 100 8.00%
Nolahist Tablets 0000-0000-00 100 8.00% 10.00%
Nolahist Tablets 0000-0000-00 168 8.00% 10.00%
Nolamine TR Tablets 0000-0000-00 100 8.00% 4.00% 7.50% 10.00%
Nolamine TR Tablets 0000-0000-00 250 8.00% 4.00% 7.50% 10.00%
Phrenilin Tablets 0000-0000-00 100 8.00% 10.00% 8.00% 15.00% 10.00%
Phrenilin Tablets 0000-0000-00 500 8.00%
Phrenilin Forte
Capsules 0000-0000-00 100 8.00% 10.00% 8.00% 15.00% 10.00%
Phrenilin Forte
Capsules 0000-0000-00 500 8.00%
Propagest Tablets 0000-0000-00 100
Salflex Tablets
500mg 0000-0000-00 100 8.00%
Salflex Tablets
750mg 0000-0000-00 100 8.00%
Salflex Tablets
750mg 0000-0000-00 500 8.00%
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
* = Evergreen clause in contract (contract is automatically renewed for
one-year periods)
Elan Pharmaceuticals Confidential 03/28/2000
Page 2
ELAN PHARMACEUTICALS, INC.
Schedule of Contract Pricing (Rebate Contracts)
Health Partners Humana Integrated Pharm. Services
0000 00xx Xxxxxx X. 000 Xxxx Xxxx Xx. 0000 Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000 Xxxxxx Xxxxxxx, XX 00000
Begin Date 01/01/00 10/01/97 07/01/97
End Date 06/30/02 Evergreen* Evergreen*
------------------ --------------------- ------------------------- ---------------------------
NEW CONTRACT
Amen Tablets 0000-0000-00 50 10.00%
Amen Tablets 0000-0000-00 100 10.00%
Amen Tablets 0000-0000-00 1000 10.00%
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine Susp 0000-0000-00 480 10.00%
Exgest LA Tablets 0000-0000-00 100 10.00%
Exgest LA Tablets 0000-0000-00 500 10.00%
Hydrocet Capsules 0000-0000-00 100
Motofen Tablets 0000-0000-00 50 8.00%
Motofen Tablets 0000-0000-00 100 8.00%
Nolahist Tablets 0000-0000-00 100 10.00%
Nolahist Tablets 0000-0000-00 168 10.00%
Nolamine TR Tablets 0000-0000-00 100 10.00% 8.00% 8.00%
Nolamine TR Tablets 0000-0000-00 250 10.00% 8.00% 8.00%
Phrenilin Tablets 0000-0000-00 100 10.00% 10.00%
Phrenilin Tablets 0000-0000-00 500
Phrenilin Forte Capsules 0000-0000-00 100 10.00% 10.00%
Phrenilin Forte Capsules 0000-0000-00 500
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100 10.00%
Salflex Tablets 750 mg 0000-0000-00 100 10.00%
Salflex Tablets 750 mg 0000-0000-00 100 10.00%
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
Merck-Medco M&M Health Plans (Pro-Xxxx)
000 Xxxxxx Xxxxxx 00 Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxxx, Xx 00000-0000
Begin Date 11/01/97 04/01/97
End Date 09/30/00 03/31/00
------------------ ----------------------- ---------------------------
Amen Tablets 0000-0000-00 50
Amen Tablets 0000-0000-00 100
Amen Tablets 0000-0000-00 1000
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine Susp 0000-0000-00 480
Exgest LA Tablets 0000-0000-00 100 $.04 to $.16/unit
Exgest LA Tablets 0000-0000-00 500 $.04 to $.16/unit
Hydrocet Capsules 0000-0000-00 100
Motofen Tablets 0000-0000-00 50
Motofen Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 000
Xxxxxxxx XX Tablets 0000-0000-00 100 8% of WAC
Nolamine TR Tablets 0000-0000-00 250 8% of WAC
Phrenilin Tablets 0000-0000-00 100 8% of WAC 10.00%
Phrenilin Tablets 0000-0000-00 500 8% of WAC
Phrenilin Forte Capsules 0000-0000-00 100 8% of WAC 10.00%
Phrenilin Forte Capsules 0000-0000-00 500 8% of WAC
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100 $.04 to $.13/unit
Salflex Tablets 750 mg 0000-0000-00 100 $.04 to $.13/unit
Salflex Tablets 750 mg 0000-0000-00 500 $.04 to $.13/unit
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
* = Evergreen clause in contract (contract is automatically renewed for
one-year periods)
Elan Pharmaceuticals Confidential 03/28/2000
Page 3
ELAN PHARMACEUTICALS, INC.
Schedule of Contract Pricing (Rebate Contracts)
Pharmacy Associates,
NPA PCS Health Systems Inc. (PAI)
000 Xxxxxxxxx Xxx. 0000 Xxxxx Xxxxxx Xx. 000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Begin Date 04/01/99 07/01/94 07/01/96
End Date Evergreen 12/31/99 Evergreen
Renegotiating
----------------- ------------------------ ---------------------- ------------------------
Amen Tablets 0000-0000-00 50 6.00% 12.00% 10.00%
Amen Tablets 0000-0000-00 100 6.00% 12.00% 10.00%
Amen Tablets 0000-0000-00 1000 6.00% 12.00% 10.00%
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine Susp 0000-0000-00 480 12.00% 10.00%
Exgest LA Tablets 0000-0000-00 100 12.00% 10.00%
Exgest LA Tablets 0000-0000-00 500 12.00% 10.00%
Hydrocet Capsules 0000-0000-00 100
Motofen Tablets 0000-0000-00 50 12.00% 6.00%
Motofen Tablets 0000-0000-00 100 12.00% 6.00%
Nolahist Tablets 0000-0000-00 100 10.00%
Nolahist Tablets 0000-0000-00 168 10.00%
Nolamine TR Tablets 0000-0000-00 100 12.00% 6.00%
Nolamine TR Tablets 0000-0000-00 250 12.00% 6.00%
Phrenilin Tablets 0000-0000-00 100 12.00% 10.00%
Phrenilin Tablets 0000-0000-00 500 12.00% 10.00%
Phrenilin Forte Capsules 0000-0000-00 100 12.00% 10.00%
Phrenilin Forte Capsules 0000-0000-00 500 12.00% 10.00%
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100 6.00% 10.00%
Salflex Tablets 750 mg 0000-0000-00 100 6.00% 10.00%
Salflex tablets 750 mg 0000-0000-00 500 6.00% 10.00%
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
Pro Vantage Prudential
00000 Xxxxxxx Xxxxx 0000 Xxxxx Xxxx
Xxxxx 000 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000-0000
Begin Date 01/01/99 10/01/97
End Date Evergreen 08/30/00
----------------- ------------------------ ----------------------
Amen Tablets 0000-0000-00 50 4% to 10%
Amen Tablets 0000-0000-00 100 4% to 10%
Amen Tablets 0000-0000-00 1000 4% to 10%
Bontril PDM Tablets 0000-0000-00 100
Bontril PDM Tablets 0000-0000-00 1000
Bontril SR Capsules 0000-0000-00 100
Capital & Codeine Susp 0000-0000-00 480
Exgest LA Tablets 0000-0000-00 100 4% to 10% 12.00%
Exgest LA Tablets 0000-0000-00 500 4% to 10% 12.00%
Hydrocet Capsules 0000-0000-00 100
Motofen Tablets 0000-0000-00 50
Motofen Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 100
Nolahist Tablets 0000-0000-00 000
Xxxxxxxx XX Tablets 0000-0000-00 100 4% to 7% 10.00%
Nolamine TR Tablets 0000-0000-00 250 4% to 7% 10.00%
Phrenilin Tablets 0000-0000-00 100 4% to 10%
Phrenilin Tablets 0000-0000-00 500 4% to 10%
Phrenilin Forte Capsules 0000-0000-00 100 4% to 10%
Phrenilin Forte Capsules 0000-0000-00 500 4% to 10%
Propagest Tablets 0000-0000-00 100
Salflex Tablets 500 mg 0000-0000-00 100 4% to 10%
Salflex Tablets 750 mg 0000-0000-00 100 4% to 10%
Salflex tablets 750 mg 0000-0000-00 500 4% to 10%
Sinulin Tablets 0000-0000-00 20
Sinulin Tablets 0000-0000-00 100
Sinulin Tablets 0000-0000-00 168
* = Evergreen clause in contract (contract is automatically renewed for
one-year periods)
Elan Pharmaceuticals Confidential 03/28/2000
Page 4
ELAN PHARMACEUTICALS, INC.
Schedule of Contract Pricing (Rebate Contracts)
RXAmerica Xxxxx & White Wellpoint
000 Xxxxx Xxxxxxxx Xx. 0000 Xxxxxxxx Xxxx 4553 La Tianda Drive
Salt Lake City Temple, Xxxxxxxx Xxxx,
XX00000 TX78502 CA91382
Begin Date 10/01/96 01/01/98 04/01/99
End Date Evergreen* Evergreen* Evergreen*
----------- --------------------- ------------------ --------------------
Amen Tablets 0000-0000-00 50 10.00% 4% to 10%
Amen Tablets 0000-0000-00 100 10.00% 4% to 10%
Amen Tablets 0000-0000-00 1000 10.00% 4% to 10%
Bontril PDM Tablets 0000-0000-00 100 10.00%
Bontril PDM Tablets 0000-0000-00 1000 10.00%
Bontril SR Capsules 0000-0000-00 100 10.00%
Capital & Codeine Susp 0000-0000-00 480 10.00% 4% to 10%
Exgest LA Tablets 0000-0000-00 100 8.00% 10.00% 4% to 10%
Exgest LA Tablets 0000-0000-00 500 8.00% 10.00% 4% to 10%
Hydrocet Capsules 0000-0000-00 100 8.00% 10.00%
Motofen Tablets 0000-0000-00 50 8.00% 8.00%
Motofen Tablets 0000-0000-00 100 8.00% 8.00%
Nolahist Tablets 0000-0000-00 100 10.00% 10.00%
Nolahist Tablets 0000-0000-00 168 10.00% 10.00%
Nolamine TR Tablets 0000-0000-00 100 8.00% 4% to 10%
Nolamine TR Tablets 0000-0000-00 250 8.00% 4% to 10%
Phrenilin Tablets 0000-0000-00 100 8.00% 10.00% 4% to 10%
Phrenilin Tablets 0000-0000-00 500 4% to 10%
Phrenilin Forte Capsules 0000-0000-00 100 8.00% 10.00% 4% to 10%
Phrenilin Forte Capsules 0000-0000-00 500 4% to 10%
Propagest Tablets 0000-0000-00 100 8.00% 10.00%
Salflex Tablets 500mg 0000-0000-00 100 8.00% 10.00%
Salflex Tablets 750mg 0000-0000-00 100 8.00% 10.00%
Salflex Tablets 750mg 0000-0000-00 500 8.00% 10.00%
Sinulin Tablets 0000-0000-00 20 10.00%
Sinulin Tablets 0000-0000-00 100 10.00%
Sinulin Tablets 0000-0000-00 168 10.00%
Medicaid Connecticut PACE
c/o HCFA (Medicaid
Supplemental)
Begin Date (XXXX change quarterly 07/03/1991
End Date and are $/unit) Evergreen*
----------- -------------------------- ----------------------
Amen Tablets 0000-0000-00 50 $0.024890 Same as HCFA
Amen Tablets 0000-0000-00 100 $0.024890 Same as HCFA
Amen Tablets 0000-0000-00 1000 $0.024890 Same as HCFA
Bontril PDM Tablets 0000-0000-00 100 $0.006878 Same as HCFA
Bontril PDM Tablets 0000-0000-00 1000 $0.006878 Same as HCFA
Bontril SR Capsules 0000-0000-00 100 $0.235680 Same as HCFA
Capital & Codeine Susp 0000-0000-00 480 $0.009432 Same as HCFA
Exgest LA Tablets 0000-0000-00 100 $0.036502 Same as HCFA
Exgest LA Tablets 0000-0000-00 500 $0.036502 Same as HCFA
Hydrocet Capsules 0000-0000-00 100 $0.020595 Same as HCFA
Motofen Tablets 0000-0000-00 50 $0.123520 Same as HCFA
Motofen Tablets 0000-0000-00 100 $0.123520 Same as HCFA
Nolahist Tablets 0000-0000-00 100 $0.062487 Same as HCFA
Nolahist Tablets 0000-0000-00 168 $0.062487 Same as HCFA
Nolamine TR Tablets 0000-0000-00 100 $0.314818 Same as HCFA
Nolamine TR Tablets 0000-0000-00 250 $0.314818 Same as HCFA
Phrenilin Tablets 0000-0000-00 100 $0.021854 Same as HCFA
Phrenilin Tablets 0000-0000-00 500 $0.021854 Same as HCFA
Phrenilin Forte Capsules 0000-0000-00 100 $0.023078 Same as HCFA
Phrenilin Forte Capsules 0000-0000-00 500 $0.023078 Same as HCFA
Propagest Tablets 0000-0000-00 100 $0.006373 Same as HCFA
Salflex Tablets 500mg 0000-0000-00 100 $0.006061 Same as HCFA
Salflex Tablets 750mg 0000-0000-00 100 $0.128180 Same as HCFA
Salflex Tablets 750mg 0000-0000-00 500 $0.128180 Same as HCFA
Sinulin Tablets 0000-0000-00 20 $0.019340 Same as HCFA
Sinulin Tablets 0000-0000-00 100 $0.019340 Same as HCFA
Sinulin Tablets 0000-0000-00 168 $0.019340 Same as HCFA
* = Evergreen clause in contract (contract is automatically renewed for
one-year periods)
Elan Pharmaceuticals Confidential 03/28/2000
Page 5
