STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated June 23, 1998 between
Celgene Corporation, a Delaware corporation ("Celgene"), and
Biovail Laboratories Incorporated, a Barbados corporation
incorporated under the International Business Xxxxxxxxx Xxx,
0000-00 ("BLI").
WHEREAS, contemporaneously with the execution and
delivery of this Agreement, Celgene and BLI are entering into a
Distribution Agreement (the "Distribution Agreement") pursuant to
which BLI shall act as Celgene's exclusive distributor in Canada
of d-methylphenidate; and
WHEREAS, in order to promote an identity of interest
between Celgene and BLI, Celgene wishes to issue and sell, and
BLI wishes to purchase and acquire shares of Celgene's common
stock, par value $.01 per share ("Celgene Common Stock") on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual
promises, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE
Section 1.1 Sale and Purchase of Shares. On the terms
and subject to conditions of this Agreement, at the Closing (as
hereinafter defined), Celgene shall issue and sell to BLI, and
BLI shall purchase and acquire from Celgene, for a total purchase
price of US$2.5 million (the "Purchase Price") a number of shares
of Celgene Common Stock (the "Shares") equal to the quotient
derived by dividing (i) US$2.5 million by (ii) the greater of (A)
the closing price per share for Celgene Common Stock, as reported
in the Wall Street Journal, on the fifth trading day prior to the
Closing Date or (B) the product of (x) the average closing price
per share for Celgene Common Stock, as reported in the Wall
Street Journal, for the twenty trading days ending on the fifth
trading day prior to the Closing, multiplied by (y) 125%. The
Purchase Price shall be payable by wire transfer of immediately
available funds to an account designated by Celgene.
Section 1.2 Closing. The closing (the "Closing") shall
take place at the offices of Proskauer Rose LLP at 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., New York City time, on the
first business day after the day on which all of the conditions
set forth in Article V hereof are satisfied or waived or on such
other date and at such other time and place as Celgene and BLI
shall agree (the "Closing Date"). At the Closing, the parties
shall deliver the documents and take the other actions as are
provided for in Article VI hereof.
Section 1.3 Termination. This Agreement may be
terminated at any time prior to the Closing: (i) by mutual
written agreement of Celgene and BLI; (ii) by Celgene, if any
condition specified in Section 5.1 or 5.3 shall not have been
satisfied or waived in writing by Celgene on or before July 3,
1998; or (iii) by BLI, if any condition specified in Section 5.2
or 5.3 shall not have been satisfied or waived in writing by BLI
on or July 3, 1998. Upon such termination, no party shall have
any liability or obligation arising out of this Agreement, except
for (x) any liability or obligation resulting from the willful
breach of this Agreement prior to termination, and (y) any
liability or obligation under Section 4.1 or Section 4.7 hereof
(it being understood that the parties' obligations under each of
such Sections shall survive the termination of this Agreement).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BLI
As an inducement for Celgene to enter into this Agreement
and the Distribution Agreement, BLI represents and warrants to,
and covenants with, Celgene as follows:
Section 2.1 Existence and Power
(a) BLI is a corporation validly existing and in good
standing under the laws of the jurisdiction of its incorporation,
and has full corporate power and authority to enter into and
perform its obligations under this Agreement and the Distribution
Agreement.
(b) BLI has the full corporate power and authority to
carry on its business as now conducted and to own, lease and
operate its properties. BLI is qualified to do business and is
in good standing in each jurisdiction in which the nature of its
business or the properties owned or leased by it requires
qualification, except where the failure to be so qualified or in
good standing would not have a material adverse effect upon the
business, properties, financial condition or results of
operations of BLI, or upon BLI's right or ability to perform its
obligations under this Agreement and the Distribution Agreement
(a "BLI Material Adverse Effect").
Section 2.2 Authorization. The execution, delivery and
performance by BLI of its obligations under this Agreement and
the Distribution Agreement have been duly authorized by all
necessary corporate action of BLI, and this Agreement and the
Distribution Agreement constitute the valid and binding
obligations of BLI enforceable against it in accordance with
their respective terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforceability of creditors'
rights in general and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
Section 2.3 Subsidiaries. Except for the entities listed
on Schedule 2.3 hereto (the "Subsidiaries"), BLI does not own any
equity interest in any other entity. Except as set forth on
Schedule 2.3 hereto, BLI owns, directly or through one or more
wholly-owned Subsidiaries, all the outstanding shares of capital
stock or other equity interest in each of the Subsidiaries.
Section 2.4 No Conflicts, Violations or Defaults. The
execution, delivery and performance of this Agreement and the
Distribution Agreement by BLI will not: (a) violate or conflict
with the [certificate of incorporation or bylaws] of BLI or any
of the Subsidiaries; (b) conflict with, result in the breach,
termination or acceleration of, or constitute a default under,
any lease, mortgage, trust, indenture, deed, note, license or
governmental approval, agreement, commitment or other instrument
to which BLI or any of the Subsidiaries is a party or by which
BLI or any of the Subsidiaries or any of their respective
properties are bounds where such conflict, breach, termination,
acceleration or default would have a BLI Material Adverse Effect;
or (c) constitute a violation of any law, regulation, order,
writ, judgment, injunction or decree applicable to BLI or any of
the Subsidiaries.
Section 2.5 Financial Statements; Absence of Certain
Changes. The financial statements of Biovail Corporation
International ("BCI"), the beneficial and record holder of all
the issued and outstanding capital stock of BLI, delivered to
Celgene as of and for the period ended December 31, 1997 fairly
present the financial condition and results of operations of BCI
and the Subsidiaries on a consolidated basis in accordance with
generally accepted accounting principles ("GAAP") applied on a
consistent basis. Since December 31, 1997 there has been no
material adverse change in the business, financial condition or
results of operations of the BCI and the Subsidiaries, taken as a
whole.
Section 2.6 Compliance with Law. BLI and each of the
Subsidiaries is in compliance in all material respects with all
applicable laws, regulations and material governmental permits,
licenses, franchises and other authorizations.
Section 2.7 Defaults. Neither BLI nor any of the
Subsidiaries is in default in any material respect of any
obligation under any material agreement to which BLI or any
Subsidiary is a party.
Section 2.8 Litigation. There is no judicial or
administrative action, proceeding or investigation pending or, to
the best knowledge of BLI and the Subsidiaries, threatened that
questions the validity of this Agreement or the Distribution
Agreement or any action taken or to be taken by BLI in connection
with this Agreement or the Distribution Agreement. There is no
litigation, proceeding or governmental investigation pending or,
to the best knowledge of BLI and the Subsidiaries, threatened, or
any order, injunction or decree outstanding, against BLI or any
of the Subsidiaries that is reasonably likely to have,
individually or in the aggregate, a BLI Material Adverse Effect.
To the best knowledge of BLI and the Subsidiaries, no person has
asserted, and no person has a valid basis upon which to assert,
any claims against BLI or the Subsidiaries that is reasonably
likely to have, individually or in the aggregate, a BLI Material
Adverse Effect.
Section 2.9 Permits and Licenses. Each of BLI and the
Subsidiaries has all permits, licenses, franchises and other
authorizations necessary for the conduct of its business as
currently conducted and where the failure to have such permits,
licenses, franchises or other authorizations would have a BLI
Material Adverse Effect. All such permits, licenses, franchises
and authorizations are valid and in full force and effect.
Section 2.10 Consents, Authorizations, etc. Except for
those listed on Schedule 2.11 hereto, no consent, authorization,
approval, waiver or the like is required for BLI to execute,
deliver or perform its obligations under this Agreement or the
Distribution Agreement.
Section 2.11 Investment Intent. BLI understands that the
offer and sale of the Shares by Celgene to BLI pursuant hereto is
intended to be exempt from registration under the Securities Act
of 1933, as amended (the "Securities Act"), by virtue of Section
4(2) thereunder, BLI will be purchasing the Shares for investment
purposes only and not with a view to the resale or distribution
of the Shares, in whole or in part.
Section 2.12 Financial Ability. BLI has the funds on
hand, or available credit, to pay the Purchase Price and to
perform its other obligations under this Agreement and the
Distribution Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CELGENE
As an inducement for BLI to enter into this Agreement
and the Distribution Agreement, Celgene represents and warrants
to, and covenants with, BLI as follows:
Section 3.1 Existence and Power.
(a) Celgene is a corporation validly existing and in
good standing under the laws of the jurisdiction of its
incorporation, and has full corporate power and authority to
enter into and perform its obligations under this Agreement and
the Distribution Agreement.
(b) Celgene is qualified to do business and is in good
standing in each jurisdiction in which the nature of its business
or the properties owned or leased by it requires qualification,
except where the failure to be so qualified or in good standing
would not have a material adverse effect upon the business,
properties, financial condition or results of operations of
Celgene or upon Celgene's right or ability to perform its
obligations under this Agreement and the Distribution Agreement
(a "Celgene Material Adverse Effect").
Section 3.2 Authorization. The execution, delivery and
performance by Celgene of its obligations under this Agreement
and the Distribution Agreement have been duly authorized
by all necessary corporate action of Celgene, and this Agreement
and the Distribution Agreement constitute the valid and binding
obligations of Celgene enforceable against it in accordance with
their respective terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforceability of creditors'
rights in general and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
Section 3.3 Charter Documents. The copy of the
certificate of incorporation and bylaws of Celgene that have been
delivered to BLI are complete and correct.
Section 3.4 No Conflicts, Violations or Defaults. The
execution, delivery and performance of this Agreement and the
Distribution Agreement by Celgene will not: (a) violate or
conflict with the certificate of incorporation or bylaws of
Celgene; (b) conflict with, result in the breach, termination or
acceleration of, or constitute a default under, any lease,
mortgage, trust, indenture, deed, note, license or governmental
approval, agreement, commitment or other instrument to which
Celgene is a party or by which Celgene or its properties are
bound where such conflict, breach, termination, acceleration or
default would have a Celgene Material Adverse Effect; or (c)
constitute a violation of any law, regulation, order, writ,
judgment, injunction or decree applicable to Celgene.
Section 3.5 Capitalization.
(a) Celgene's authorized capital stock consists of
20,000,000 shares of Common Stock, of which 16,054,338 shares
were issued and outstanding as of March 31, 1998, and 5,000,000
shares of Preferred Stock, $.01 par value per share, none of
which shares were issued and outstanding as of March 31, 1998.
(b) As of March 31, 1998 there were outstanding
options to acquire an aggregate 2,607,713 shares of Common Stock.
Section 3.6 Financial Statements. The audited
consolidated balance sheets and statements of stockholders'
equity of Celgene and its subsidiary as of December 31, 1997 and
1996 and the statements of operations and cash flows for 1995,
1996, and 1997 present fairly in all material respects the
consolidated financial condition and results of operations of
Celgene for the periods stated in accordance with GAAP applied on
a consistent basis.
Section 3.7 Compliance with Law. Celgene is in
compliance in all material respects with all applicable laws,
regulations and material governmental permits, licenses,
franchises and other authorizations.
Section 3.8 Defaults. Celgene is not in default in any
material respect of any obligation under any material agreement
to which it is a party.
Section 3.9 Litigation. There is no judicial or
administrative action, proceeding or investigation pending or, to
the best knowledge of Celgene, threatened that questions the
validity of this Agreement or the Distribution Agreement or any
action taken or to be taken by Celgene in connection with this
Agreement or the Distribution Agreement. There is no litigation,
proceeding or governmental investigation pending or, to the best
knowledge of Celgene, threatened, or any order, injunction or
decree outstanding, against Celgene that is reasonably likely to
have, individually or in the aggregate, a Celgene Material
Adverse Effect. To the best knowledge of Celgene, no person has
asserted, and no person has a valid basis upon which to assert,
any claims against Celgene that is reasonably likely to have,
individually or in the aggregate, a Celgene Material Adverse
Effect.
Section 3.10 Permits and Licenses. Celgene has all
permits, licenses, franchises and other authorizations necessary
for the conduct of its business as currently conducted and where
the failure to have such permits, licenses, franchises or other
authorizations would have a Celgene Material Adverse Effect. All
such permits, licenses, franchises and authorizations are valid
and in full force and effect.
Section 3.11 Consents, Authorizations, etc. Except for
those listed on Schedule 3.11 hereto, no consent, authorization,
approval, waiver or the like is required for Celgene to execute,
deliver or perform its obligations under this Agreement or the
Distribution Agreement.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Access to Information; Confidentiality.
Prior to the Closing, each party hereto may make such additional
investigation of the business and properties of the other party
hereto and its subsidiaries as each party may wish, and, upon
reasonable notice, either party shall give the other party and
its counsel, accountants and other representatives reasonable
access, during normal business hours throughout the period prior
to the Closing, to the property, books, commitments, agreements,
records, files and personnel of it and its subsidiaries and each
party hereto shall furnish the other party hereto during that
period copies of documents and information concerning it and its
subsidiaries as the other party hereto may reasonably request,
subject to applicable law. Each party hereto shall, and shall
cause its counsel, accountants and other agents and
representatives to, keep all information and documents
confidential and protect the confidentiality of any document
furnished by either party; provided, however, that information
already generally known in the public domain shall not be
considered confidential.
Section 4.2 Governmental Filings. As promptly as
practicable after the execution of this Agreement, each party
shall, in cooperation with the others, make or cause to be made
the required filing or filings in connection with the
transactions contemplated by this Agreement and, as promptly as
practicable from time to time thereafter, each party shall make
or cause to be made all such further filings and submissions, and
take or cause to be taken such further action, as may reasonably
be required in connection therewith.
Section 4.3 Other Pre-Closing Action. Each party shall
use reasonable efforts to cause the fulfillment at or prior to
the Closing of all the conditions to its obligations to
consummate the sale and purchase of the Common Shares under this
Agreement.
Section 4.4 Expenses. Each of Celgene and BLI shall bear
its own expenses in connection with this Agreement and all
obligations to be performed by it or them under this Agreement.
Section 4.5 Publicity. Without otherwise limiting any
party's rights under this Agreement or otherwise, before the
Closing (or, if earlier, the termination of this Agreement),
Celgene and BLI shall consult with and obtain the consent of the
other before issuing any press release or making any similar
public disclosure concerning this Agreement or the transactions
referred to in this Agreement or its Exhibits, unless, in the
reasonable judgment of the party issuing the release or making
the disclosure, the release or disclosure is required as a matter
of law (in which case it or they shall consult as set forth above
before issuing the release or making the disclosure).
Section 4.6 Transfer Taxes. BLI shall pay all sales,
stock transfer and other similar taxes and fees in respect of the
sale of the Common Shares under this Agreement.
Section 4.7 Further Assurances. From time to time after
the Closing, each of Celgene and BLI shall take such action and
execute and deliver such documents as the other may reasonably
request to carry out the transactions contemplated by this
Agreement.
Section 4.8 Market Stand-Off. BLI shall not dispose of
the Shares (i) in any manner prior to the first anniversary of
the Closing Date or (ii) after the first anniversary of the
Closing Date, other than in compliance with Rule 144 promulgated
under the Securities Act. Prior to any disposition of Shares by
BLI, BLI shall offer the Shares it desires to dispose of (the
"Offered Shares") to Celgene at a price per share equal to the
average mean of the daily high and low trading prices for Celgene
Common Stock, as reported in the Wall Street Journal, for the
twenty trading days ending on the date such offer is made to
Celgene. Celgene may choose to (i) purchase any or all of the
Offered Shares or (ii) designate a third party to purchase any or
all of the Offered Shares, in each case at such price by notice
given to BLI within five days after the offer is made to Celgene.
In the event that Celgene designates a third party to purchase
the Offered Shares, BLI shall be obligated to sell the Offered
Shares to such third party. Any Offered Shares which Celgene
declines to purchase, either directly or through a designated
third party, may be disposed of by BLI in accordance with the
terms hereof. BLI shall notify Celgene of any shares so disposed
of by it as soon as practicable after the disposition thereof.
ARTICLE V
CONDITIONS TO CLOSING
Section 5.1 Conditions to Obligation of Celgene. The
obligations of Celgene to consummate the transactions
contemplated by this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions
(any or all of which may be waived by Celgene):
(a) the representations, warranties and covenants
of BLI pursuant to Article II hereof shall be true and correct in
all material respects at and as of the time of the Closing with
the same effect as though made again at and as of that time, and
BLI shall have furnished Celgene with a certificate to such
effect (dated the date of the Closing) executed by a senior
executive officer of BLI;
(b) the obligations and covenants required by
this Agreement to be performed or complied with by BLI prior to
or at the Closing shall have been performed and complied with by
it in all material respects, and BLI shall have furnished Celgene
with a certificate to such effect (dated the date of this
Closing) executed by a senior executive officer of BLI;
(c) BLI and the Subsidiaries taken as a whole
shall have suffered no material adverse change in their business,
properties, financial condition or results of operations;
(d) all consents and approvals listed on schedule
2.11 shall have been obtained and remain in full force and
effect; and
(e) the Purchase Price shall have been paid.
Section 5.2 Conditions to Obligations of BLI. The
obligation of BLI to consummate the purchase under this Agreement
is subject to the fulfillment, prior to or at the Closing, of
each of the following conditions (any or all of which may be
waived by BLI):
(a) the representations and warranties of
Celgene to BLI shall be true and correct in all material respects
at and as of the time of the Closing with the same effect as
though made again at and as of that time, and Celgene shall have
furnished BLI with a certificate to such effect (dated the date
of the Closing) executed by a senior executive officer of
Celgene; and
(b) the obligations and covenants required by
this Agreement to be performed or complied with by Celgene prior
to or at the Closing shall have been performed and complied with
by Celgene, and Celgene shall have furnished BLI with a
certificate to such effect (dated the date of the Closing)
executed by a senior executive officer of Celgene; and
(c) Celgene shall have delivered to BLI share
certificates representing the Shares.
Section 5.3 Conditions to Obligations of Each Party. The
obligations of each party to consummate the purchase and sale
under this Agreement are subject to the fulfillment, prior to or
at the Closing, of each of the following conditions (any or all
of which (other than (a)) may be waived by all the parties):
(a) all applicable filings with, and notices to
any U.S. or Canadian governmental authority shall have been made
and any and all applicable waiting periods shall have lapsed,
expired or been terminated; and
(b) there shall not be in effect any injunction
or restraining order issued by a court of competent jurisdiction
in any action or proceeding against the consummation of the sale
and purchase of the Common Shares under this Agreement.
ARTICLE VI
DOCUMENTS TO BE DELIVERED AT THE CLOSING
Section 6.1 Documents to be Delivered by BLI. At the
Closing, BLI shall deliver, or cause to be delivered, to Celgene
the following:
(a) the Purchase Price;
(b) a duly certified copy of the resolutions of
the Board of Directors of BLI authorizing the execution, delivery
and performance by BLI of its obligations under this Agreement,
and a certificate of the Secretary of BLI, dated the date of the
Closing, that such resolutions were duly adopted and are in full
force and effect;
(c) the certificate referred to in Sections
5.1(a) and (b) hereof; and
(d) any other document that Celgene may
reasonably request.
Section 6.2 Documents to be Delivered by Celgene. At the
Closing, Celgene shall deliver, or cause to be delivered, to BLI
the following:
(a) a copy of the resolutions of the Board of
Directors of Celgene authorizing the execution, delivery and
performance by Celgene of its obligations under this Agreement,
and a certificate of its secretary or assistant secretary, dated
the date of the Closing, that such resolutions were duly adopted
and are in full force and effect;
(b) the certificate referred to in Sections
5.2(a) and (b); and
(c) stock certificates representing the Shares.
ARTICLE VII
INDEMNIFICATION AND RELATED MATTERS
Section 7.1 Indemnification. Subject to the provisions
of this Article VII, BLI shall indemnify and hold Celgene
harmless from and against all losses, liabilities, damages and
expenses (including reasonable attorney's fees) ("Losses")
resulting from a breach by BLI of the representations and
warranties of BLI set forth in this Agreement, and (b) Celgene
shall indemnify and hold BLI harmless from and against all Losses
resulting from a breach by Celgene of the representations and
warranties of Celgene set forth in this Agreement.
Section 7.2 General Limitations of Liability and Related
Matters. Except as specifically set forth in this Agreement, no
party to this Agreement has made, or shall have liability for,
any representation, warranty or agreement, express or implied, in
connection with the transactions contemplated by this Agreement.
Section 7.3 Time and Manner of Certain Claims. The
representations and warranties referred to in Article II and
Article III hereof shall survive the Closing; provided, however,
that a party hereto shall have no liability to the other under
this Agreement for breach of warranty or misrepresentation unless
a claim therefor is asserted in a written notice delivered prior
to the first anniversary of the Closing.
Section 7.4 Defense of Claims by Third Parties. If any
third party claim is made against a party that, if sustained,
would give rise to a liability of another party under this
Agreement for breach of warranty or misrepresentation, the party
against whom the claim is made shall promptly cause notice of the
claim to be delivered to the other party and shall afford the
other party and its counsel, at the other party's sole expense,
the opportunity to defend or settle the claim. The failure to
provide the notice referred to above shall not relieve the
indemnifying party of liability under this Agreement, except to
the extent the indemnifying party has actually been prejudiced by
such failure. If any claim is compromised or settled without the
consent of the indemnifying party (such consent not to be
unreasonably withheld or delayed), no liability shall be imposed
upon the indemnifying party by reason of the claim.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Finders. Each party represents and warrants
to the others that it has not employed or utilized the services
of any broker or finder in connection with this Agreement or the
transactions contemplated by this Agreement.
Section 8.2 Governing Law. This Agreement shall be
construed in accordance with and governed by the laws of the
State of New York without regard to the choice of law principles
thereof.
Section 8.3 Headings. The Article and Section headings
of this Agreement and titles given to schedules to this Agreement
are for reference purposes only and are to be given no effect in
the construction or interpretation of this Agreement.
Section 8.4 Definition. As used in this Agreement, (a)
the term "to the best knowledge" or any similar term means to the
best actual knowledge of the senior executive officers of such
party, after due inquiry, and (b) the term "trading day" means
any day on which securities trade on the Nasdaq Stock Market.
Section 8.5 Notices. All notices and other
communications under this Agreement shall be in writing and may
be given by any of the following methods: (a) personal delivery;
(b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) overnight
delivery service. Notices shall be sent to the appropriate party
at its address or facsimile number given below (or at such other
address or facsimile number for such party as shall be specified
by notice given under this Section 8.5):
If to Celgene:
Celgene Corporation
0 Xxxxxx Xxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Mr. Xxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax: 000-000-0000
If to BLI:
Biovail Laboratories Incorporated
Xxxxxxxx Xxxx
Xxxxxxxx 0, Xxxxxxxxx Xxxx
Xx. Michael BH 1
Barbados, West Indies
Attention: Mr. Xxxxxx Xxxxxx, President and Chief
Executive Officer
Facsimile No.: (246) 437-7085
with a copy to BLI's counsel at:
Biovail Corporation International
0000 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx X. Cancellara, Q.C.
Facsimile No.: (000) 000-0000
All such notices and communications shall be deemed received upon
(a) actual receipt by the addressee, (b) actual delivery to the
appropriate address or (c) in the case of a facsimile
transmission, upon transmission by the sender and issuance by the
transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted
without error. In the case of notices sent by facsimile
transmission, the sender shall contemporaneously mail a copy of
the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the
facsimile notice is deemed received.
Section 8.6 Waiver. Any party may waive compliance by
any other party with any provision of this Agreement. No waiver
of any provision shall be construed as a waiver of any other
provision. Any waiver must be in writing and signed by the
waiving party.
Section 8.7 Assignments; Binding Effect. Except as
otherwise provided herein, neither the rights nor the obligations
hereunder of any party hereto may be assigned without the prior
written consent of the other party hereto. Celgene may assign its
rights and obligations hereunder to any subsidiary or successor
to its business. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and permitted assignees.
Section 8.8 Counterparts. This Agreement may be executed
in counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
Section 8.9 Dispute Resolution, Choice of Forum. Any
disputes arising between the Parties relating to, arising out of
or in any way connected with this Agreement or any term or
condition hereof, or the performance by either party of its
obligations hereunder, shall be promptly presented to the Chief
Executive Officer of Celgene and the President of BLI for
resolution and if they or their designees cannot promptly resolve
such disputes, then either party shall have the right to bring an
action to resolve such dispute before a court of competent
jurisdiction. The Parties hereby submit to the jurisdiction of
the federal or state courts located within the State of New York
for the conduct of any suit, action or proceeding arising out of
or relating to this Agreement.
Section 8.10 Entire Agreement. This Agreement constitutes
the entire agreement of the parties hereto with respect to the
subject matter hereof, supersedes any previous agreements and
understandings among the parties with respect thereto, and may
not be changed or terminated orally.
IN WITNESS WHEREOF, the Agreement has been executed as of
the date first above written.
CELGENE CORPORATION
By:/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Chairman and Chief Executive Officer
BIOVAIL LABORATORIES INCORPORATED
By:/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
President and Chief Executive Officer
