UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q/A
(Mark One)
 
 
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended  June 30, 2016
OR 
 
 
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission file number 001-34263
 
 
 
Impax Laboratories, Inc.
(Exact name of registrant as specified in its charter)
 
Delaware
 
65-0403311
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
 
 
 
30831 Huntwood Avenue, Hayward, CA
 
94544
(Address of principal executive offices)
 
(Zip Code)
 
 
 
 
 
(510) 240-6000
 
 
( Registrant’s telephone number, including area code )
 
 
 
 
 Not Applicable
( Former name, former address and former fiscal year, if changed since last report )

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes ☒   No ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes ☒ No ☐






Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
 
 
 
Large accelerated filer
Accelerated filer
Non-accelerated filer (Do not check if a smaller reporting company)
Smaller reporting company

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐   No ☒

As of November 30, 2016, there were 73,873,034 shares of the registrant’s common stock outstanding.





Explanatory Note
This Amendment No. 1 to Form 10-Q (this “Amendment Filing”) amends the Quarterly Report on Form 10-Q of Impax Laboratories, Inc. (“Impax”) for the fiscal quarter ended June 30, 2016, which was originally filed with the Securities and Exchange Commission (the “SEC”) on August 9, 2016 (the “Original Filing”). Impax is filing this Amendment Filing solely for the purpose of re-filing exhibits 10.2.1, 10.3.1, 10.4.1, 10.4.2, 10.5.1 and 10.5.2 thereto in response to comments received from the Staff of the SEC in connection with a confidential treatment request with respect to the (i) Asset Purchase Agreement by and between Teva Pharmaceutical Industries Ltd. and Impax, dated as of June 20, 2016; (ii) Asset Purchase Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC EHF, Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic, LLC, Andrx LLC, Breath LTD., The Rugby Group, Inc. and Watson Laboratories, Inc. (collectively, the “Actavis Parties”) and Impax, dated as of June 20, 2016; (iii) Supply Agreement by and between Teva Pharmaceutical Industries Ltd. and Impax, dated as of June 20, 2016; (iv) Amendment No. 1 to the Supply Agreement by and between Teva Pharmaceutical Industries Ltd. and Impax, dated as of June 30, 2016; (v) Supply Agreement by and among the Actavis Parties and Impax, dated as of June 20, 2016; and (vi) Amendment No. 1 to the Supply Agreement by and among the Actavis Parties and Impax, dated as of June 30, 2016.
This Amendment Filing does not modify or update any part of or information set forth in the Original Filing other than Exhibits 10.2.1, 10.3.1, 10.4.1, 10.4.2, 10.5.1 and 10.5.2.





PART II - OTHER INFORMATION
Item 6.    Exhibits.
 
 
 
Exhibit No.
 
Description of Document
3.1.1*
 
Amendment No. 4 to Amended and Restated Bylaws of the Company, as amended effective as of May 17, 2016.
 
 
 
3.1.2*
 
Amendment No. 3 to Amended and Restated Bylaws of the Company, as amended effective as of October 7, 2015.
 
 
 
3.1.3*
 
Amendment No. 2 to Amended and Restated Bylaws of the Company, as amended effective as of July 7, 2015.
 
 
 
3.1.4*
 
Amendment No. 1 to Amended and Restated Bylaws of the Company, effective as of March 24, 2015.
 
 
 
3.1.5*
 
Amended and Restated Bylaws of the Company, effective as of May 14, 2014.
 
 
 
10.1*
 
First Amendment dated as of May 31, 2016 to the Distribution, License, Development and Supply Agreement by and between AstraZeneca UK Limited and the Company dated as of January 31, 2012.**
 
 
 
10.2.1
 
Asset Purchase Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.†**
 
 
 
10.2.2*
 
Amendment No. 1 dated as of June 30, 2016 to the Asset Purchase Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.
 
 
 
10.3.1
 
Asset Purchase Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.†**
 
 
 
10.3.2*
 
Amendment No. 1 dated as of June 30, 2016 to the Asset Purchase Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 
10.4.1
 
Supply Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.**
 
 
 
10.4.2
 
Amendment No. 1 dated as of June 30, 2016 to the Supply Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.**
 
 
 
10.5.1
 
Supply Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 





10.5.2
 
Amendment No. 1 dated as of June 30, 2016 to the Supply Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 
10.6*
 
Employment Agreement dated as of July 14, 2016 by and between the Company and Douglas S. Boothe.††
 
 
 
10.7*
 
Restatement Agreement dated as of August 3, 2016 by and among the Company,  the guarantors party thereto, Royal Bank of Canada, as administrative agent, and the lenders party thereto.

11.1*
 
Statement re computation of per share earnings (incorporated by reference to Note 15 in the Notes to Interim Consolidated Financial Statements in this Quarterly Report on Form 10-Q).
 
 
 
31.1
 
Certification of the Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
31.2
 
Certification of the Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.1*
 
Certification of the Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.2*
 
Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
101*
 
The following materials from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016 formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Balance Sheets as of June 30, 2016 and December 31, 2015, (ii) Consolidated Statements of Operations for each of the three and six months ended June 30, 2016 and 2015, (iii) Consolidated Statements of Comprehensive Income for each of the three and six months ended June 30, 2016 and 2015, (iv) Consolidated Statements of Cash Flows for each of the six months ended June 30, 2016 and 2015 and (v) Notes to Interim Consolidated Financial Statements.

* Previously filed.

** Confidential treatment requested for certain portions of this exhibit pursuant to Rule 24b-2 under the Exchange Act, which portions are omitted and filed separately with the SEC.

† Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish a supplemental copy of any omitted schedule to the SEC upon request.

†† Indicates management contract or compensatory plan or arrangement.





SIGNATURES  
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. 
 
 
 
 
Date: January 6, 2017
 
Impax Laboratories, Inc.
 
 
(Registrant)
 
 
 
 
 
 
 
By:
/s/ J. Kevin Buchi
 
 
J. Kevin Buchi
 
 
Interim President and Chief Executive Officer
(Principal Executive Officer)
 
 
 
 
 
 
 
By:
/s/ Bryan M. Reasons
 
 
Bryan M. Reasons
 
 
Chief Financial Officer and
Senior Vice President, Finance
(Principal Financial and Accounting Officer)






EXHIBIT INDEX
 
 
 
 
Exhibit No.
 
Description of Document
3.1.1*
 
Amendment No. 4 to Amended and Restated Bylaws of the Company, as amended effective as of May 17, 2016.
 
 
 
3.1.2*
 
Amendment No. 3 to Amended and Restated Bylaws of the Company, as amended effective as of October 7, 2015.
 
 
 
3.1.3*
 
Amendment No. 2 to Amended and Restated Bylaws of the Company, as amended effective as of July 7, 2015.
 
 
 
3.1.4*
 
Amendment No. 1 to Amended and Restated Bylaws of the Company, effective as of March 24, 2015.
 
 
 
3.1.5*
 
Amended and Restated Bylaws of the Company, effective as of May 14, 2014.
 
 
 
10.1*
 
First Amendment dated as of May 31, 2016 to the Distribution, License, Development and Supply Agreement by and between AstraZeneca UK Limited and the Company dated as of January 31, 2012.**
 
 
 
10.2.1
 
Asset Purchase Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.†**
 
 
 
10.2.2*
 
Amendment No. 1 dated as of June 30, 2016 to the Asset Purchase Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.
 
 
 
10.3.1
 
Asset Purchase Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.†**
 
 
 
10.3.2*
 
Amendment No. 1 dated as of June 30, 2016 to the Asset Purchase Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 
10.4.1
 
Supply Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.**
 
 
 
10.4.2
 
Amendment No. 1 dated as of June 30, 2016 to the Supply Agreement between Teva Pharmaceutical Industries Ltd. and the Company dated as of June 20, 2016.**
 
 
 
10.5.1
 
Supply Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 





10.5.2
 
Amendment No. 1 dated as of June 30, 2016 to the Supply Agreement by and among Actavis Elizabeth LLC, Actavis Group PTC Ehf., Actavis Holdco US, Inc., Actavis LLC, Actavis Mid Atlantic LLC, Actavis Pharma, Inc., Actavis South Atlantic LLC, Andrx LLC, Breath Ltd., The Rugby Group, Inc., Watson Laboratories, Inc. and the Company dated as of June 20, 2016.**
 
 
 
10.6*
 
Employment Agreement dated as of July 14, 2016 by and between the Company and Douglas S. Boothe.††
 
 
 
10.7*
 
Restatement Agreement dated as of August 3, 2016 by and among the Company,  the guarantors party thereto, Royal Bank of Canada, as administrative agent, and the lenders party thereto.
 
 
 
11.1*
 
Statement re computation of per share earnings (incorporated by reference to Note 15 in the Notes to Interim Consolidated Financial Statements in this Quarterly Report on Form 10-Q).
 
 
 
31.1
 
Certification of the Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
31.2
 
Certification of the Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.1*
 
Certification of the Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.2*
 
Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
101*
 
The following materials from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016 formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Balance Sheets as of June 30, 2016 and December 31, 2015, (ii) Consolidated Statements of Operations for each of the three and six months ended June 30, 2016 and 2015, (iii) Consolidated Statements of Comprehensive Income for each of the three and six months ended June 30, 2016 and 2015, (iv) Consolidated Statements of Cash Flows for each of the six months ended June 30, 2016 and 2015 and (v) Notes to Interim Consolidated Financial Statements.

* Previously filed.

** Confidential treatment requested for certain portions of this exhibit pursuant to Rule 24b-2 under the Exchange Act, which portions are omitted and filed separately with the SEC.
† Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish a supplemental copy of any omitted schedule to the SEC upon request.

†† Indicates management contract or compensatory plan or arrangement.




EXECUTION VERSION










ASSET PURCHASE AGREEMENT
BETWEEN
TEVA PHARMACEUTICAL INDUSTRIES LTD.
AND
IMPAX LABORATORIES, INC.
DATED AS OF
JUNE 20, 2016








TABLE OF CONTENTS
 
 
Page

 
 
 
ARTICLE I. DEFINITIONS
6

 
 
 
SECTION 1.1.
Definitions
6

SECTION 1.2.
Interpretation
12

SECTION 1.3.
Currency
12

SECTION 1.4.
Incorporation by Reference and Supremacy of FTC Order
12

 
 
 
ARTICLE II. SALE AND PURCHASE OF TRANSFERRED ASSETS
13

 
 
 
SECTION 2.1.
Purchase and Sale
13

SECTION 2.2.
Transferred Assets
13

SECTION 2.3.
Assumption of Certain Liabilities and Obligations
14

SECTION 2.4.
License to Certain Product Technology; License to Use Certain Information
15

SECTION 2.5.
Covenant Not to Sue.
16

SECTION 2.6.
Nonassignable Assets.
16

 
 
 
ARTICLE III. PURCHASE PRICE
16

 
 
 
SECTION 3.1.
Purchase Price
16

SECTION 3.2.
Allocation of Purchase Price
17

SECTION 3.3.
Transfer Taxes
17

 
 
 
ARTICLE IV. THE CLOSING
17

 
 
 
SECTION 4.1.
Closing Date
17

SECTION 4.2.
Transactions to Be Effected at the Closing
17

 
 
 
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER
17

 
 
 
SECTION 5.1.
Seller Organization; Good Standing
18

SECTION 5.2.
Authority; Execution and Delivery
18

SECTION 5.3.
Consents; No Violation, Etc.
18

SECTION 5.4.
Title to Transferred Assets
19

SECTION 5.5.
Litigation
19

SECTION 5.6.
Regulatory Issues
20

SECTION 5.7.
No Brokers
20

SECTION 5.8.
Exclusive Representations and Warranties
20

SECTION 5.9.
Regulatory Commitments
20

SECTION 5.10.
Contracts to be Assumed; Customers
20

SECTION 5.11.
Inventory; Sales; and Cost.
21

SECTION 5.12.
Assets.
21








SECTION 5.13.
Absence of Certain Changes.
21

 
 
 
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER
22

 
 
 
SECTION 6.1.
Buyer’s Organization; Good Standing
22

SECTION 6.2.
Authority; Execution and Delivery
22

SECTION 6.3.
Consents; No Violations, Etc.
22

SECTION 6.4.
Litigation
23

SECTION 6.5.
Development
23

SECTION 6.6.
No Brokers
23

SECTION 6.7.
Availability of Funds
23

SECTION 6.8.
Solvency
23

SECTION 6.9.
Independent Investigation; No Seller Warranty
24

SECTION 6.10.
No Guarantee of FDA Approval
24

 
 
 
ARTICLE VII. CERTAIN COVENANTS AND AGREEMENTS OF SELLER
25

 
 
 
SECTION 7.1.
Conduct of Business Until Closing
25

SECTION 7.2.
Post-Closing Orders and Payments
26

SECTION 7.3.
Technology Transfer; Assistance with Buyer Regulatory Filings
26

SECTION 7.4.
Seller’s NDC Numbers
26

SECTION 7.5
Competition
27

SECTION 7.6.
Sales Data; Customer
27

 
 
 
ARTICLE VIII. CERTAIN COVENANTS AND AGREEMENTS
28

 
 
 
SECTION 8.1.
Insurance
28

SECTION 8.2.
Books and Records
28

SECTION 8.3.
Confidentiality
28

SECTION 8.4.
Assumption of Regulatory Commitments
29

SECTION 8.5.
Bulk Transfer Laws
29

SECTION 8.6.
Buyer NDC Numbers; Buyer Trademarks and Buyer Trade Dress Changes
29

SECTION 8.7.
Response to Medical Inquiries and Products Complaints
29

SECTION 8.8.
Use of Transferred Assets
30

 
 
 
ARTICLE IX. OTHER COVENANTS AND AGREEMENTS
30

 
 
 
SECTION 9.1.
Trade Returns, Medicaid Rebates, Chargebacks
30

SECTION 9.2.
Adverse Experience Reports
31

SECTION 9.3.
Transfer of Product ANDAs, Etc.
31

SECTION 9.4.
Further Action; Consents; Filings
32

SECTION 9.5.
Compliance with the Federal Trade Commission Decision
32

SECTION 9.6.
Representations to Customers.
33

SECTION 9.7.
Financial Information.
33

SECTION 9.8.
Cooperation.
33


- ii -





ARTICLE X. CONDITIONS PRECEDENT
34

 
 
 
SECTION 10.1.
Conditions to Each Party’s Obligations
34

SECTION 10.2.
Conditions to Obligations of Buyer
34

SECTION 10.3.
Conditions to the Obligations of Seller
35

 
 
 
ARTICLE XI. TERMINATION, AMENDMENT AND WAIVER
35

 
 
 
SECTION 11.1.
Termination
35

SECTION 11.2.
Amendments and Waivers
37

SECTION 11.3.
Rescission
37

SECTION 11.4.
Modification
37

 
 
 
ARTICLE XII. INDEMNIFICATION
37

 
 
 
SECTION 12.1.
Survival
37

SECTION 12.2.
Indemnification by Seller
38

SECTION 12.3.
Indemnification by Buyer
38

SECTION 12.4.
Limitations.
38

SECTION 12.5.
Procedure
40

 
 
 
ARTICLE XIII. GENERAL PROVISIONS
41

 
 
 
SECTION 13.1.
Expenses
41

SECTION 13.2.
Further Assurances and Actions
41

SECTION 13.3.
Notices
42

SECTION 13.4.
Headings
43

SECTION 13.5.
Severability
44

SECTION 13.6.
Counterparts
44

SECTION 13.7.
Entire Agreement; No Third-Party Beneficiaries
44

SECTION 13.8.
Governing Law
44

SECTION 13.9.
Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL
44

SECTION 13.10.
Specific Performance
45

SECTION 13.11.
Intentionally Omitted
45

SECTION 13.12.
Publicity
45

SECTION 13.13.
Assignment
46

Exhibit A
Assignment and Assumption Agreement
Exhibit B
Bill of Sale
Exhibit C
Products
Exhibit D
Supply Agreement
Exhibit E
Form of Customer Notice
Appendix I
Proposed Order/Final Order

- iii -





Appendix II
Provisions from Order

Appendix III
Seller NDC Number Transition Services



- iv -





ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of June 20, 2016 (the “ Effective Date ”), is made by and between Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”), and Teva Pharmaceutical Industries Ltd., an Israeli corporation, acting directly or through its Affiliates (“ Seller ”).
WHEREAS, the FTC staff has raised the concern that the proposed acquisition (the “ Proposed Allergan Transaction ”) of certain businesses and assets of Allergan plc (“ Allergan ”) by Seller, pursuant to the Allergan Agreement, is likely to produce anticompetitive effects in the alleged relevant product market(s) in the United States for the generic pharmaceutical products listed on Exhibit C (as such products are more specifically identified in this Agreement), which would not be in the public interest, including, but not limited to, by eliminating competition between Seller and Allergan;
WHEREAS, in order to resolve the concerns raised by the FTC staff in these alleged product markets in the United States, Seller has agreed to enter into this Agreement with Buyer to divest certain assets related to these products to Buyer, and to permit Buyer to replace the lost competition by manufacturing, marketing and selling the generic products referred to above into the respective alleged product markets;
WHEREAS, the FTC has or is about to issue an Order governing the scope, nature, extent and requirements of this Agreement;
WHEREAS, Seller and/or its Affiliates sells the Products (as defined herein) commercially and/or has a Product ANDA (as defined herein) filed with the FDA with respect to the Products;
WHEREAS, upon and subject to the Allergan Closing, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, certain Transferred Assets (as defined herein) related to the Products within the Territory (as defined herein), all upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS, concurrently with the execution of this Agreement, certain Persons who will be Affiliates of Seller as of the Closing entered into an asset purchase agreement with Buyer related to the Order (the “ Other Acquisition Agreement ”), pursuant to which such Affiliates of Seller as of the Closing have agreed to sell to Buyer, and Buyer has agreed to purchase from such Affiliates of Seller as of the Closing, certain Transferred Assets (as defined in the Other Acquisition Agreement) related to the Products (as defined in the Other Acquisition Agreement) within the Territory (as defined in the Other Acquisition Agreement), all upon the terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:





[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



ARTICLE I.
DEFINITIONS

SECTION 1.1.     Definitions
As used in this Agreement, the following terms have the meanings set forth below:
Affiliate ” means any Person that controls, is controlled by, or is under common control with the applicable Person. For purposes of this definition, “control” shall mean: (a) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares entitled to vote for the election of directors, or otherwise having the power to control or direct the affairs of such Person; and (b) in the case of non-corporate entities, direct or indirect ownership of more than fifty percent (50)% of the equity interest or the power to direct the management and policies of such noncorporate entities.
Agreement ” has the meaning set forth in the preamble.
Allergan ” has the meaning set forth in the recitals.
Allergan Agreement ” means the Master Purchase Agreement dated as of July 26, 2015 by and between Allergan and Seller, as it may be amended from time to time.
Allergan Closing ” means the closing of the Proposed Allergan Transaction pursuant to the Allergan Agreement.
Application(s) ” means all of the following: NDA, ANDA, “Supplemental New Drug Application”, or “Marketing Authorization Application”, the applications for a Product filed or to be filed with the FDA pursuant to 21 C.F.R. Part 314 et seq., and all supplements, amendments, and revisions thereto, any preparatory work, registration dossier, drafts and data necessary for the preparation thereof, and all correspondence between the holder and the FDA related thereto. “Application” also includes an “Investigational New Drug Application” filed or to be filed with the FDA pursuant to 21 C.F.R. Part 312, and all supplements, amendments, and revisions thereto, any preparatory work, registration dossier, drafts and data necessary for the preparation thereof, and all correspondence between the holder and the FDA related thereto.
Assigned Contracts ” means the Contracts set forth on Schedule 2.2(a)(vii) , but solely with respect to the applicable Product, or Contracts or arrangements conferring substantially equivalent rights with respect to the applicable Products.
Assigned Patents ” means the patents set forth on Schedule 2.2(a)(vi) hereto and any related registrations or applications for registrations thereof.
Assignment and Assumption Agreement ” means an assignment and assumption agreement to be executed and delivered by Buyer and Seller at Closing, substantially in the form of Exhibit A .
Assumed Liabilities ” has the meaning set forth in Section 2.3(a).


- 6
[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Bill of Sale ” means a bill of sale to be executed and delivered by Seller to Buyer at Closing, substantially in the form of Exhibit B .
Business Day ” means any day other than a Friday, Saturday, Sunday or other day on which banks in the U.S. or Israel are permitted or required to close by Law.
Buyer ” has the meaning set forth in the preamble.
Buyer Indemnified Parties ” has the meaning set forth in Section 12.2.
Buyer NDC Numbers ” has the meaning set forth in Section 8.6.
Buyer Officer’s Certificate ” means a certificate, dated the Closing Date, duly executed by an authorized officer of Buyer, reasonably satisfactory in form to Seller, as to the satisfaction of the conditions set forth in Sections 10.3(a) and (b).
Buyer Returns ” has the meaning set forth in Section 9.1(a).
Cap ” has the meaning set forth in Section 12.4(a).
Closing ” and “ Closing Date ” have the respective meanings set forth in Section 4.1.
Contracts ” means contracts, leases, licenses, indentures, agreements, purchase orders and all other legally binding arrangements, whether in existence on the date hereof or subsequently entered into, including all amendments thereto.
Customer List ” has the meaning set forth in Section 5.10(c) hereof.
Customer Notice ” means the written notice to be sent to Customers in accordance with Section 7.6, in substantially the form attached hereto as Exhibit E .
Customers ” has the meaning set forth in Section 7.6(d).
Deductible ” has the meaning set forth in Section 12.4(a).
Direct Cost ” means the cost of (i) direct labor and direct material used and (ii) all other reasonable and documented out of pocket expenses, in each case, to provide the relevant assistance or service.
Disclosing Party ” has the meaning set forth in Section 8.3.
Effective Date ” has the meaning set forth in the preamble.
Encumbrance ” means, with respect to any asset, any imperfection of title, mortgage, charge, lien, security interest, easement, right of way, pledge or encumbrance of any nature whatsoever.
Excluded Assets ” has the meaning set forth in Section 2.2(b).
Excluded Liabilities ” has the meaning set forth in Section 2.3(b).

- 7
[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Exhibits ” means, collectively, the Exhibits referred to throughout this Agreement.
Expiration Date ” has the meaning set forth in Section 12.1.
FDA ” means the U.S. Food and Drug Administration.
Finished Goods ” means each of the Products, respectively, packaged, labeled and ready for distribution and sale in finished form.
FTC ” means the U.S. Federal Trade Commission.
GAAP ” means United States generally accepted accounting principles.
Governmental Entity ” means any nation or government or any court, administrative agency or commission or other governmental authority, body or instrumentality, whether U.S. (federal, state, country, municipal or other) or non-U.S.
Governmental Rule ” means any Law, judgment, order, decree, statute, ordinance, rule or regulation enacted, issued or promulgated by any Governmental Entity.
Indemnified Party ” has the meaning set forth in Section 12.3.
Indemnifying Party ” has the meaning set forth in Section 12.5(a).
Knowledge ” of (i) Seller means all such facts, circumstances or other information, of which Jamie Berlanska (VP of Finance & Controller – Americas), Maureen Cavanaugh (SVP General Manager US Generics), Vivian McCain (VP, Americas TPO Regional Head), Carol Devine (Senior PM TPO-PMO), Lauren Rabinovic (VP General Counsel NA Generic IP), Kirsten Bauer (SVP General Counsel TGO & Quality), and Dror Bashan (SVP BD and Strategic Initiatives) are actually aware and (ii) Buyer means all such facts, circumstances or other information, of which Frederick Wilkinson (President and Chief Executive Officer), Bryan Reasons (Senior Vice President, Finance and Chief Financial Officer), Mark Schlossberg (Senior Vice President and General Counsel) and Brandon Smith (Senior Vice President, Corporate Development and Strategy) are actually aware.
Law ” means each federal, state, provincial, municipal, local, or foreign law, statute, ordinance, order, determination, judgment, common law, code, rule, official standard, or regulation, enacted, enforced, entered, promulgated, or issued by any Governmental Entity.
Liabilities ” means any and all debts, liabilities and obligations of any kind, nature, character or description, whether accrued or fixed, absolute or contingent, matured or unmatured, or known or unknown, including those arising under any Governmental Rule or action and those arising under any Contract, arrangement, commitment or undertaking, or otherwise.
License ” has the meaning set forth in Section 2.4.
Losses ” means any and all damages, losses, Taxes, Liabilities, claims, judgments, penalties, payments, interest, costs and expenses (including reasonable and documented legal fees, accountants’ fees and expert witnesses’ fees and expenses incurred in investigating and/or prosecuting any claim for indemnification).


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Material Adverse Effect ” means an effect which has had, or would reasonably be expected to have, a material adverse effect solely on the Transferred Assets or Product Technology taken as a whole, but will not include (a) any adverse change or effect due to changes in conditions generally affecting (i) the healthcare industry or (ii) the United States economy as a whole, or (b) any change or adverse effect caused by, or relating to (i) the commencement, occurrence, continuation, or intensification of any national or international political conditions, including the engagement by the United States or any other country or group in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States or any other country, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment, or personnel of the United States or any other country or group, (ii) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (iii) any changes in Law or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof, (iv) the occurrence, continuation or intensification of any earthquakes, hurricanes, pandemics, or other natural disasters, or any other force majeure event, whether or not caused by any Person, or any national or international calamity or crisis, (v) compliance with the terms of, or the taking of any action required by, this Agreement or the transactions contemplated hereby (including any action reasonably required by, or condition or other term reasonably imposed by, the FTC in connection with the Order) or (vi) the execution, announcement or pendency of this Agreement and the transactions contemplated by this Agreement; provided, however, that the changes set forth in the foregoing clauses (a)(i), (b)(iii) and (b)(iv) shall be taken into account in determining whether a “Material Adverse Effect” has occurred to the extent (and only to the extent) such changes have a disproportionate impact on the Transferred Assets or the Products, in each case, when compared to similar companies or products in the pharmaceutical industry.
Medicaid Reimbursements and Rebates ” means all discounts, rebates, reimbursements or other payments required by Governmental Rule to be made under Medicaid, Medicare or other governmental special medical assistance programs.
NDC ” means a national drug code as issued by the FDA.
NDC Numbers ” means the NDC Number for each of the Products, respectively.
Net Price ” means the price per unit of Product on a SKU-level basis charged by Seller as of [****], net of all discounts, rebates or promotions.
Order ” means the Decision and Order relating to the Products issued by the FTC in the proceeding captioned In the Matter of Teva Pharmaceutical Industries Ltd., a corporation.
Other Acquisition Agreement ” has the meaning set forth in the recitals.
Permitted Encumbrances ” means (a) any minor imperfections of title or similar Encumbrance that do not, and would not reasonably be expected to, individually or in the aggregate, materially impair the value or materially interfere with the use of, the Transferred Assets, the Product Technology, (b) Encumbrances for Taxes that are not yet due and payable, (c) Encumbrances that will be released at Closing, (d) statutory Encumbrances arising out of operation of Law with respect to a Liability incurred in the ordinary course of business and which is not delinquent, (e) Encumbrances

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incurred as a result of any facts or circumstances related to Buyer or its Affiliates and (f) Encumbrances set forth on Schedule 1.1.

Person ” means any individual, corporation, partnership, limited liability company, joint venture, trust, business association, organization, Governmental Entity or other entity.
Product ANDA ” means, for each applicable Product, respectively, the Abbreviated New Drug Application (as defined in the United States Food, Drug, and Cosmetic Act) identified on Exhibit C , and all amendments and supplements thereto, that have been filed with the FDA seeking authorization and approval to manufacture, package, ship and sell such Products, as more fully defined in 21 C.F.R. Part 314 et seq.
Product Approval(s) ” means any approvals, registrations, permits, licenses, consents, authorizations, and other approvals, and pending applications and requests therefor, required by applicable Governmental Entities related to the research, development, manufacture, distribution, finishing, packaging, marketing, sale, storage, or transport of a Product within the United States of America, and includes, without limitation, all approvals, registrations, licenses, or authorizations granted in connection with any Application related to that Product.
Products ” means the Products listed on Exhibit C hereto to be purchased pursuant to this Agreement.
Product Scientific and Regulatory Material ” means all technological, scientific, development, chemical, biological, pharmacological, toxicological, regulatory, clinical trial materials, product safety related information (including periodic safety update reports and adverse event database information), written correspondence with any Governmental Entity and other data, files, records and other information (in any form or medium, wherever located) similar to the foregoing, in each case to the extent solely related to the Products that are owned by Seller and in Seller’s possession or control.
Product Technology ” means the following information owned by or to the extent licensed to Seller, as in existence and in the possession of Seller as of the Closing Date: the manufacturing technology, proprietary or confidential information, processes, techniques, protocols, methods, improvements and know-how that are necessary to manufacture the Products in accordance with the current applicable Product ANDA, as the case may be, including, but not limited to, the manufacturing process approved in the applicable Product ANDAs, specifications and test methods, raw material, packaging, stability and other applicable specifications, manufacturing and packaging instructions, master formula, validation reports to the extent available, stability data, analytical methods, records of complaints, annual product reviews to the extent available, and other master documents necessary for the manufacture, control and release of the Products as conducted by, or on behalf of, Seller or any of its Affiliates before the Effective Date. The Product Technology includes without limitation the rights owned or to the extent controlled by Seller under any patent issued in or subject to a pending application in the Territory as of the Closing Date, and any rights under any patent or patent application outside of the Territory solely to the extent necessary to manufacture the Products outside the Territory for importation to and sale in the Territory.
Proposed Allergan Transaction ” has the meaning set forth in the recitals.

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Purchase Price ” has the meaning set forth in Section 3.1.
Quality Agreement ” means the Quality Agreement to be executed by Buyer and Seller pursuant to the Supply Agreement.
Receiving Party ” has the meaning set forth in Section 8.3.
Schedules ” means, collectively, the Schedules referred to throughout this Agreement.
SEC Waiver Letter ” has the meaning set forth in Section 9.7.
Seller ” has the meaning set forth in the preamble.
Seller Indemnified Parties ” has the meaning set forth in Section 12.3.
Seller Officer’s Certificate ” means a certificate, dated the Closing Date, duly executed by an authorized officer of Seller, reasonably satisfactory in form to Buyer, as to the satisfaction of the conditions set forth in Sections 10.2(a), (b) and (c).
Seller Payments ” has the meaning set forth in Section 9.1(c).
Seller’s Taxes ” means all (i) Taxes arising out of, relating to or otherwise in respect of the Transferred Assets that are attributable to taxable periods, or portions thereof, ending on or prior to the Closing Date, provided that, in the case of any taxable period beginning on or prior to and ending after the Closing Date (a “ Straddle Period ”), Taxes assessed on an annual or other periodic basis allocated to the portion of the taxable period ending on or prior to the Closing Date shall be equal to the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the taxable period ending on or prior to the Closing Date and the denominator of which is the
number of days in the entire Straddle Period; and (ii) Taxes imposed on, or incurred by, Seller or any Affiliate of Seller for which Seller or any Affiliate of Seller is liable that do not arise out of, relate to or otherwise are not in respect of the Transferred Assets.
SKU ” means a stock keeping unit.
Specifications ” has the meaning set forth in the Supply Agreement.
Supply Agreement ” means the Supply Agreement to be executed by Seller and Buyer, in substantially the form attached hereto as Exhibit D .
Tax(es) ” means all Federal, state, local and foreign taxes, customs, duties, governmental fees and assessments, including all interest, penalties and additions with respect thereto.
Tax Return ” means any report, return, election, notice, estimate, declaration, information statement and other forms and documents (including all schedules, exhibits and other attachments thereto) relating to and filed or required to be filed with a taxing authority in connection with any Taxes (including estimated Taxes).

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Territory ” means the United States of America and its territories, protectorates and possessions, including Puerto Rico.

Third Party Claim ” has the meaning set forth in Section 12.5(b).
Transferred Assets ” has the meaning set forth in Section 2.2(a).
Transition Products ” has the meaning set forth in Appendix III.
U.S .” or “ U.S.A .” means the United States of America.

SECTION 1.2.     Interpretation
When used in this Agreement, the words “include”, “includes” and “including” will be deemed to be followed by the words “without limitation.” Any terms defined in the singular will have a comparable meaning when used in the plural, and vice-versa.
SECTION 1.3.     Currency
All currency amounts referred to in this Agreement are in U.S. Dollars, unless otherwise specified.
SECTION 1.4.     Incorporation by Reference and Supremacy of FTC Order
(a)     Incorporation of FTC Order . The parties hereby agree and acknowledge that the terms and provisions of the Order of the FTC shall govern this Agreement. A copy of the Order proposed as of the date hereof is attached as Appendix I, and upon issuance by the FTC,
the final Order shall replace the currently proposed Order as Appendix I attached hereto without any other action by the parties hereto. The terms and provisions of the Order that pertain to this Agreement are hereby deemed incorporated by reference into this Agreement.
(b)     Supremacy of FTC Order . To the extent that any term or provision of this Agreement conflicts with any corresponding term or provision of the Order, the parties hereby agree that the terms or provisions of the Order shall control the rights and obligations of the parties.
(c)     Publicity of FTC Order . Buyer acknowledges that the Order will be publicly available and will include information regarding the Products, the Buyer and certain information regarding this Agreement and the Ancillary Agreements.





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ARTICLE II.
    
SALE AND PURCHASE OF TRANSFERRED ASSETS
SECTION 2.1.     Purchase and Sale
Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Seller will sell, assign, transfer, convey and deliver to Buyer, and Buyer will purchase, acquire and accept, all right, title and interest, within the Territory, of Seller in, to and under the Transferred Assets free and clear of all Encumbrances other than Permitted Encumbrances.
SECTION 2.2.     Transferred Assets
(a)    The term “ Transferred Assets ” means the following assets of Seller, as the same exist on the Closing Date, that relate solely and exclusively to the Products (and for the avoidance of doubt, excluding the Excluded Assets):
(i)
the Product ANDAs;
(ii)
any correspondence with the FDA in Seller’s possession or control with respect to the Product ANDAs;
(iii)
annual and periodic reports relating to the Product ANDAs which have been filed by or on behalf of Seller with the FDA, and adverse event reports pertaining to the Products, in each case as are in Seller’s possession or control;
(iv)
the quantity and delivery terms in all outstanding customer purchase orders for the Products;
(v)
the Product Scientific and Regulatory Material;
(vi)
the Assigned Patents;
(vii)
the Assigned Contracts;
(viii)
all of Seller’s rights, title and interests to any active pharmaceutical ingredients relating to Products held by a contract manufacturer or located at a contract manufacturer’s premises; and
(ix)
any other assets belonging to Seller that are required to be transferred pursuant to the Order.
(b)    Seller and Buyer expressly agree and acknowledge that the Transferred Assets will not include any assets of any kind, nature, character or description (whether real personal or mixed, whether tangible or intangible, whether absolute, accrued, contingent, fixed or otherwise, and wherever situated) that are not expressly included within the definition of Transferred Assets (the “ Excluded Assets ”). Excluded Assets include, without limitation, the any refund of Seller’s Taxes, and all trademarks, and trade names not specifically included in the Transferred Assets and all brand names, logotypes, symbols, service marks, and trade dress, and any registrations or applications for registrations of any of the foregoing.

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(c)    Buyer acknowledges and agrees that Seller may retain for archival purposes and for purposes of complying with the Supply Agreement, applicable law and for legal and regulatory purposes as a seller of pharmaceutical products, one copy of all or any part of the documentation that Seller delivers to Buyer pursuant to Section 2.2(a). The copies will be retained by Seller’s legal counsel and Seller agrees to treat such copies as confidential information (in accordance with Section 8.3 hereof).
SECTION 2.3.     Assumption of Certain Liabilities and Obligations
(a)    Buyer will assume, be responsible for and pay, perform and/or otherwise discharge when due those Liabilities (including any Liabilities arising in respect of Taxes) directly arising out of or in connection with or directly related to (x) the Transferred Assets, the use thereof, or the use of the Product Technology by or on behalf of Buyer or its Affiliates or their respective agents or assignees on or after the Closing Date and (y) the marketing, sale or use of the Products by or on behalf of Buyer or its Affiliates or their respective agents or assignees on or after the Closing Date; provided that, for the avoidance of doubt, such Assumed Liabilities shall include: (i) Liabilities arising from any patent infringement claim or lawsuit brought by any third party, the FDA or any other Governmental Entity, in all cases only to the extent that they relate to Product sold on or after the Closing Date; (ii) Liabilities arising from any FDA or any other Governmental Entity action or notification only to the extent that such Liabilities relate to Product sold by or on behalf of Buyer or its Affiliates; (iii) Liabilities arising from any product liability claims relating to Product sold by Buyer or its agents or assignees, except to the extent the Manufacturer (as defined in the Supply Agreement) is liable for such Liabilities pursuant to the Supply Agreement on or after the Closing; (iv) Liabilities arising on or after the Closing Date from any plan of Risk Evaluation and Mitigation Strategies to the extent relating to any of the Products sold by Buyer or its Affiliates, or their respective agents or assignees; and (v) subject to the terms set forth in Appendix III solely with respect to the Transition Products, state and federal Medicaid/Medicare rebates and payments, and all credits, chargebacks, rebates, discounts, allowances, incentives and similar payments in connection with the sale of Products on or after the Closing Date by or on behalf of Buyer or its Affiliates (collectively, the “ Assumed Liabilities ”).
(b)    Except to the extent expressly included in the Assumed Liabilities, Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates, and shall in no event assume or be responsible or liable for any Liabilities arising out of or in connection with or related to (x) the Transferred Assets, the use thereof or the use of the Product Technology, in each case, by or on behalf of Seller or its Affiliates or their respective agents or assignees prior to the Closing Date, (y) the marketing, sale or use of the Products by or on behalf of Seller or its Affiliates or their respective agents or assignees prior to the Closing Date or liabilities that were incurred by Seller or its Affiliates prior to the Closing Date with respect to the Products and (z) for Seller’s Taxes (collectively, the “ Excluded Liabilities ”).
SECTION 2.4.     License to Certain Product Technology; License to Use Certain Information
(a)    Seller hereby irrevocably grants to Buyer as of the Closing Date (i) a royalty-free exclusive, perpetual license to use the Product Technology that is owned by Seller and presently used or held for use solely and specifically for the manufacture of the Products for sale in the Territory and not for other products of Seller or for sale in other territories, to market and sell Products in the Territory, and to manufacture Products for marketing and sale in the Territory, and (ii) a royalty-free, non-exclusive, perpetual license to use the Product Technology that is owned by Seller and used or held for use not solely and specifically for the manufacture of the Products, to

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market and sell Products in the Territory and to manufacture Products for marketing and sale in the Territory (the “ Licenses ”). Each of the Licenses includes the right to grant sublicenses.
(b)    Each party may modify or improve the Product Technology. The party making such modifications or improvements shall own all right, title and interest therein.
(c)    Subject to, and in accordance with, the terms set forth in Appendix III, with respect to any Transition Product, (i) Seller agrees that Buyer may sell such Transition Product bearing Seller’s NDC Numbers, Seller’s or its Affiliate’s name, logo, trademark, and other information of Seller or its Affiliates, and (ii) Seller hereby irrevocably grants to Buyer as of the Closing Date a royalty-free, non-exclusive license solely during the Transition Services Period (as defined in Appendix III) applicable to a Transition Product to use the Seller NDC Numbers, Seller’s or its Affiliate’s name, logo, trademark and any other information of Seller or its Affiliates contained on the labels of such Transition Products solely in connection with the sale of such Transition Products by the Buyer.



SECTION 2.5.     Covenant Not to Sue.
Each of the Seller and the Buyer hereby covenants that such party and its Affiliates will not bring any suits or claims, or cause or support any licensee or other third party to bring any suits or claims, against the other party or its Affiliates, their manufacturers and importers, or their distributors and customers or their consumers, alleging that the manufacture, use, sale, offer for sale or importation in or for the Territory of the Products, or the equivalent competing products sold by or on behalf of the Seller in or for the Territory, infringes any patent rights or misappropriates any trade secrets owned or controlled by such party or any of its Affiliates.
SECTION 2.6.     Nonassignable Assets.
(a)    Notwithstanding anything in this Agreement to the contrary, to the extent that the transfer or assignment to Buyer of any Transferred Asset is prohibited by any Governmental Rules or would require any authorizations, approvals, consents or waivers, and such authorizations, approvals, consents or waivers shall not have been obtained, neither this Agreement nor any document delivered pursuant hereto shall constitute a sale, assignment or transfer or an attempted assignment or transfer of such Transferred Asset if the applicable authorization, approval, consent or waiver has not been obtained by (or does not remain in full force and effect at) the Closing, unless and until such third party authorization, approval, consent or waiver is obtained, at which time such Transferred Asset shall be assumed and transferred to Buyer in accordance with the terms and conditions hereof.
(b)    With respect to any such authorizations, approvals, consents, or waivers referred to in Section 2.6(a), following the Closing, the parties shall use their respective reasonable best efforts, and reasonably cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers. Pending such authorizations, approval, consents or waivers, the parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Transferred Assets and to Seller the benefits or

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rights that they would have obtained had the Transferred Asset been conveyed to Buyer at the Closing. Once any authorization, approval, consent or waiver referred to in Section 2.6(a) is obtained following Closing, Seller shall assign, transfer, convey and deliver such Transferred Asset to Buyer at no additional cost to Buyer (other than out of pocket fees, costs and expenses incurred by Buyer in connection with such assignment, transfer, conveyance and delivery).
ARTICLE III.
    

PURCHASE PRICE
SECTION 3.1.     Purchase Price
The purchase price for all of the Transferred Assets will be $167,000,000 in cash to be paid on the Closing Date (the “ Purchase Price ”).
SECTION 3.2.     Allocation of Purchase Price
The Purchase Price will be allocated among the Transferred Assets as of the Closing Date in accordance with applicable Law and as set forth in Schedule 3.2. Each of the parties hereto agrees to report (and to cause its Affiliates to report) the transactions contemplated by this Agreement in a manner consistent with applicable Law and with the terms of this Agreement, including the allocation provided in Schedule 3.2, and agrees not to take any position inconsistent therewith in any Tax Return, in any Tax refund claim, in any litigation or otherwise.
SECTION 3.3.     Transfer Taxes
All transfer, sales, value added, stamp duty and similar Taxes payable in connection with the transactions contemplated hereby will be borne by Buyer.
ARTICLE IV.
    

THE CLOSING
SECTION 4.1.     Closing Date
The closing of the (i) sale and transfer of the Transferred Assets, and (ii) license of the Product Technology pursuant to Section 2.4 (the “ Closing ”) will take place at the offices of Seller at 1090 Horsham Road, North Wales, PA 19454, or at another place designated by Seller, on the first Business Day following the date on which all of the conditions to each party’s obligations under Article X have been satisfied or (if permitted) waived, or at such other time, date and/or place as mutually agreed to by the parties hereto (such date of the Closing being hereinafter referred to as the “ Closing Date ”). The parties will use their reasonable best efforts to cause the Closing Date to occur on the same date as the date of the Allergan Closing.
SECTION 4.2.     Transactions to Be Effected at the Closing
At the Closing:
(a)    Seller will deliver or cause to be delivered to Buyer each of the items referred to in Section 10.2(d), in each case appropriately executed; and

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(b)    Buyer will deliver or cause to be delivered to Seller (i) each of the items referred to in Section 10.3(d), in each case appropriately executed, and (ii) payment of the Purchase Price by wire transfer in immediately available funds, to the account or accounts designated in writing by Seller to Buyer.
ARTICLE V.
    
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
SECTION 5.1.     Seller Organization; Good Standing
Seller is a corporation duly organized, validly existing and in good standing under the laws of Israel. Seller has the requisite power and authority to own and transfer all rights to the Transferred Assets, to license the Product Technology pursuant to Section 2.4 and to carry on its business as currently conducted. Seller is duly qualified to conduct business as a foreign corporation and is in good standing in each jurisdiction where the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect. Seller is the Respondent to the Order.
SECTION 5.2.     Authority; Execution and Delivery
Seller has the requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement by Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate proceeding is necessary on the part of Seller. This Agreement has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery of this Agreement by Buyer, will constitute the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 5.3.     Consents; No Violation, Etc.
The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not:
(a)    violate any Governmental Rule applicable to Seller,
(b)    conflict with any provision of the certificate of incorporation or by-laws (or similar organizational document) of Seller,
(c)    except as set forth on Schedule 5.3, conflict with any contract to which Seller is a party or by which it is otherwise bound, including any Contract related to any of the Products or result in the creation of any Encumbrance upon any of the Transferred Assets (other than a Permitted Encumbrance),

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(d)    subject to the foregoing clause (c), to the Knowledge of Seller, violate any rights of any third party; or
(e)    require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity other than approval of the FTC,
except, with respect to the foregoing clauses (a) and (c), for such violations or conflicts which would not have a Material Adverse Effect or materially interfere with Seller’s performance of its obligations hereunder and, with respect to the foregoing clause (e), (i) for receipt of FDA approval of any Product ANDA related to a Product that has not been approved by the FDA as of the Effective Date and (ii) otherwise, for such approvals, authorizations, consents, licenses, exemptions, filings or registrations that, if not obtained or made, would not have a Material Adverse Effect or interfere with Seller’s performance of its obligations hereunder.
SECTION 5.4.     Title to Transferred Assets
Seller has good and valid title to all of the Transferred Assets and the right to license the Product Technology pursuant to Section 2.4 free and clear of all Encumbrances, other than Permitted Encumbrances. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OF THE TRANSFERRED ASSETS ARE BEING SOLD, ASSIGNED, CONVEYED OR DELIVERED (AS APPLICABLE) TO BUYER ON AN “AS IS” “WHERE IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL SUCH WARRANTIES ARE DISCLAIMED.
SECTION 5.5.     Litigation
(a)    There is no material suit, claim, action, investigation or proceeding pending or, to the Knowledge of Seller, threatened against Seller, that relates to the Transferred Assets, the Assumed Liabilities, the Product Technology that (i) challenges or seeks to prevent or enjoin the transactions contemplated by this Agreement, or (ii) has not been disclosed to Buyer in writing on Schedule 5.5(a) prior to the execution of this Agreement.
(b)    Except as set forth on Schedule 5.5(b) hereto, during the twelve-month period ending on the Effective Date (i) Seller has not received any written notice from any other Person challenging its ownership or rights to use any Product Technology or intellectual property relating to the Products or its right to make, sell, offer for sale or import any Products, (ii) there has not been any, and there are no, material suits, claims, actions, investigations or proceedings pending or, to the Knowledge of Seller, threatened against Seller, relating to its ownership or rights to use any Product Technology or intellectual property relating to the Products or its right to make, sell, offer for sale or import any Products and (iii) there has not been any, and there are no, product liability suits, claims, actions, investigations or proceedings of any kind, including product liability, tort or breach of contract, pending or, to the Knowledge of Seller, threatened against Seller, relating to the Products, the Product Technology.




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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SECTION 5.6.     Regulatory Issues
(a)    Except as may be disclosed on Schedule 5.6(a) hereto, during the twelve-month period ending on the Effective Date, (i) with respect to the Products only, Seller has not received: (A) any FDA Form 483s or warning letters directly relating to the Products or the facilities in which the Products are manufactured; or (B) any FDA Notices of Adverse Findings with respect to the Products; and (ii) there has not been a recall or market withdrawal of any Product by Seller, whether voluntary or involuntary.
(b)     Schedule 5.6(b) hereto sets forth a true and complete list of all documents, each of which has been made available to Buyer, relating to any Product and that set forth information from the last two (2) years relating to (i) adverse drug experience information, (ii) material events and matters concerning or affecting safety and (iii) medical inquiries and complaints brought to the attention of the Seller.
SECTION 5.7.     No Brokers
Except as may be disclosed on Schedule 5.7 hereto, Seller has not entered into any agreement, arrangement or understanding with any Person or firm which will result in the obligation to pay any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby.
SECTION 5.8.     Exclusive Representations and Warranties
Other than the representations and warranties set forth in this Article V, Seller is not making any other representations or warranties, express or implied, with respect to the Products or the Transferred Assets or the Product Technology or any other matter, including but not limited to any warranty of merchantability or fitness for a particular purpose or infringement of third party rights, and all such warranties are disclaimed.
SECTION 5.9.     Regulatory Commitments
Seller has complied in all material respects with all obligations arising from or related to any commitments to any Governmental Entity involving any Products. Seller and its Affiliates have been since January 1, 2014 in compliance in all material respects with all Laws applicable to the Transferred Assets, the Product Technology.
SECTION 5.10.     Contracts to be Assumed; Customers
(a)    Other than (i) the Assigned Contracts, (ii) any purchase orders or (iii) other Contracts with Customers there are no other material Contracts related to the Products.
(b)    Each Contract that is a Transferred Asset is a legal, valid and binding obligation of Seller and is in full force and effect and, to the Knowledge of Seller, each other party thereto, enforceable against Seller and each other party in accordance with its terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, and subject to the limitations imposed by general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity). Seller has performed all material obligations under each such Contract, has not received notice from any party claiming or alleging that Seller has breached or is in default thereunder and Seller is not (with or without lapse of time or notice, or both) in material

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breach or material default thereunder. To the Knowledge of Seller, each other party to each such Contract is not in material breach or default thereunder.
(c)    Schedule 5.10(c) hereto sets forth (i) a true and complete list of Customers as of the Effective Date (the “ Customer List ”) and (ii) a list of active pharmaceutical ingredients in respect of the Products, the supplier thereof and the cost of such ingredients on a per kilogram basis.
SECTION 5.11.    Inventory; Sales; and Cost.
Schedule 5.11 provides a true and accurate description of the inventory levels in respect of Seller’s three largest wholesalers of all Products by SKU as of [****] (or subsequent month end, if available) as communicated to Seller by such wholesalers.
SECTION 5.12.     Assets.
Except (i) as set forth in Schedule 5.12 and (ii) for those assets used pursuant to, and materials, goods and services provided under, the Supply Agreement, the Transferred Assets, Product Technology, and the rights to be acquired under this Agreement and the Supply Agreement constitute all of the material assets used or held for use by Seller with respect to the Transferred Assets.
SECTION 5.13.     Absence of Certain Changes.
(a)    From July 27, 2015 through the date hereof (the “ Pre-Signing Period ”), Seller has (i) conducted its business with respect to the Products and the Transferred Assets in all material respects in the ordinary course and in substantially the same manner as conducted prior to the Pre-Signing Period and (ii) maintained sales of Products and customer inventory levels in respect thereof in accordance with past practices of Seller prior to the Pre-Signing Period and reasonable industry standards.
(b)    Since June 3, 2016, through the Effective Date, except as required by this Agreement or the Ancillary Agreements or in connection with the consummation of the transaction contemplated hereby, Seller has not taken any action (or made any omission) that, if taken (or omitted) after the Effective Date without the consent of Buyer would constitute a material violation of Section 7.1.


ARTICLE VI.
    

REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 6.1.     Buyer’s Organization; Good Standing
Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has all requisite corporate power and authority to carry on its business as it is currently being conducted. Buyer is duly qualified to conduct business as a foreign corporation and is in good standing in every jurisdiction where the nature of the business conducted

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by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not prevent or materially delay the consummation of the transactions contemplated hereby.
SECTION 6.2.     Authority; Execution and Delivery
Buyer has the requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement has been duly executed and delivered by Buyer and, assuming the due authorization, execution and delivery of this Agreement by Seller, constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 6.3.     Consents; No Violations, Etc.
The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not (i) violate any Governmental Rule applicable to Buyer, (ii) conflict with any provision of the certificate of incorporation or by-laws of Buyer, (iii) conflict with any material contract to which Buyer is a party or by which it is otherwise bound or (iv) require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity, other than approval of the FTC, except with respect to the foregoing clauses (i) and (iii), for such violations or conflicts which would not materially interfere with Buyer’s performance of its obligations hereunder or, with respect to the foregoing clause (iv), for the Order and such approvals, authorizations, consents, licenses, exemptions, filings or registrations which have been obtained or made or which, if not obtained or made, would not materially interfere with Buyer’s performance of its obligations hereunder.
SECTION 6.4.     Litigation
There is no suit, claim, action, investigation or proceeding pending or, to the Knowledge of Buyer, threatened against Buyer or any of its Affiliates which, if adversely determined, would materially interfere with the ability of Buyer to perform its obligations hereunder or the consummation of the transactions contemplated hereby.
SECTION 6.5.     Development
As of the date hereof, Buyer has not begun developing a generic version of any Product, has not filed a Product ANDA for a generic version of any Product, and does not own or have a right to distribute any product under a Product ANDA for a generic version of any Product or the corresponding NDA.
SECTION 6.6.     No Brokers
Buyer has not entered into any agreement, arrangement or understanding with any Person or firm which will result in the obligation to pay any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby for which Seller could be liable.

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SECTION 6.7.     Availability of Funds
At the Closing, Buyer will have cash available to it that is sufficient to enable it to make payment of the Purchase Price, to satisfy all of the Assumed Liabilities and to make all other necessary payments in connection with transactions contemplated by this Agreement.
SECTION 6.8.     Solvency
(a)    Immediately following the Closing, and after giving effect to all of the transactions contemplated by this Agreement, Buyer and its subsidiaries, on a consolidated basis, will be Solvent. In connection with the transactions contemplated by this Agreement, Buyer is not making any transfer of property and is not incurring any Liability with the intent to hinder, delay, or defraud, either present or future creditors of Buyer.
(b)    For purposes of this Agreement, “Solvent” when used with respect to Buyer or the Transferred Assets acquired by Buyer hereunder means, as applicable, that immediately following the Closing Date, (i) the amount of the Present Fair Saleable Value of its assets will, as of such date, exceed all of its known Liabilities as of such date, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the business in which it is engaged or will be engaged, and (iii) such Person will be able to pay its Debts as they become absolute and mature, taking into account the timing of and amounts of cash to be received by it and the timing of and amounts of cash to be payable on or in respect of its Debts.
(c)    For purposes of the definition of “Solvent”: (i) “Debt” means Liability on a Payment Right and “Payment Right” means (A) any right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (B) the right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; (ii) “Present Fair Saleable Value” means, with respect to Buyer or the Transferred Assets being acquired by Buyer hereunder, the amount that may be realized if its aggregate assets (including its goodwill) are sold as an entirety with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises; and (iii) the amount of any contingent Liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured Liability.
SECTION 6.9.     Independent Investigation; No Seller Warranty
(a)    Buyer has conducted its own independent investigation, review, and analysis of the Transferred Assets, the Products, the Product Technology and the Assumed Liabilities, has formed an independent judgment concerning the Transferred Assets, the Products, the Product Technology and the Assumed Liabilities and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of Seller, for such purpose.
(b)    Buyer acknowledges and represents that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own investigation and the express representations and warranties of Seller set forth in this Agreement (including the related portions of the Schedules) and any certificates delivered

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hereunder; and (b) neither Seller nor any other Person has made, and the Buyer is not relying on, any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Seller, its Affiliates, the Transferred Assets, the Products, the Product Technology or the Assumed Liabilities not expressly set forth in this Agreement (including any information, documents and materials made available to Buyer in any electronic data room or any repository of information, management presentations, or in any other form in expectation of the transactions contemplated hereby), and neither Seller nor any other Person will have or be subject to any Liability to Buyer or any other Person resulting from the distribution to Buyer or its representatives or Buyer’s use of any such information.
SECTION 6.10.     No Guarantee of FDA Approval
Buyer acknowledges and agrees that Seller does not guarantee that FDA approval will be obtained for a Product ANDA that has not already been approved by FDA as of the date hereof and makes no representation or warranty hereunder with respect to any Product that has not already been approved by FDA as of the date hereof.


ARTICLE VII.
    

CERTAIN COVENANTS AND AGREEMENTS OF SELLER
SECTION 7.1.     Conduct of Business Until Closing
During the period from the date of this Agreement and continuing until the Closing, Seller agrees that:
(a)    Ordinary Course. Seller will conduct its business with respect to the Products and the Transferred Assets in all material respects in the ordinary course and in substantially the same manner as presently conducted and in accordance with the Order of the FTC, including, without limitation, (1) (i) maintaining sales of Products and customer inventory levels in respect thereof in accordance with past practices, historical sales data provided by Seller to Buyer pursuant to Section 7.6 hereof and reasonable industry standards and (ii) not engaging in any special promotional activities including special discounts, and (2) by using commercially reasonable efforts to, in each case in accordance with past practices hereof and reasonably industry standards, (i) not waive any material claims or rights related to the Products or the Transferred Assets, (ii) not terminate, modify or waive any material provision of any Assigned Contract, (iii) with respect to the Products and the Transferred Assets, as applicable, not materially alter the activities and practices with respect to inventory levels of the Products maintained at the wholesale, chain, institutional or retail levels in any material respect, (iv) seek FDA approval for the Product ANDA for any pipeline Product that has not already been approved by the FDA as of the Effective Date, (v) maintain any Product ANDAs that have been approved by the FDA as of the Effective Date, (vi) comply with any Laws and FDA requests or requirements in respect of the Product ANDAs or the manufacture, distribution and sale of any of the Products pursuant to the Product ANDAs, in each case, in any material respect, (vii) maintain any Assigned Patents, (viii) maintain, in all material respects, the assets reasonably necessary to the manufacture of the Products, (ix) maintain sales efforts and sales levels consistent in all material respects with past

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



practice, or (x) not agree, in writing or otherwise, to take or authorize the taking of any actions that conflict with the foregoing; provided, however, that nothing contained herein will be deemed to require the expenditures of any funds outside of the ordinary course of business. Seller will not, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), amend or modify any Assigned Contract in a manner adverse to Buyer in any material respect, including any change in any price therein.
(b)    No Dispositions. Seller will not sell, lease, license, encumber, pledge or transfer, or agree to sell, lease, license encumber, pledge or transfer, any of the Transferred Assets, the Product Technology.
(c)    No Settlements. Seller will not, without the prior written consent of Buyer (such consent not to be unreasonably withheld), (i) settle or agree to settle any claim, suit, action or other proceeding relating to the Products or the Transferred Assets brought against it by any Governmental Entity; provided, however, this Section 7.1(c) shall not apply with respect to the Order or (ii) initiate or agree to initiate any claim, suit, action or other proceeding relating to the Products or the Transferred Assets except to protect the Products or the Transferred Assets.
SECTION 7.2.     Post-Closing Orders and Payments
From and after 12:01 A.M. (New York, New York, USA time) on the day immediately following the Closing Date, (i) Seller will promptly deliver to Buyer any payments received by Seller from third parties for Finished Goods purchased by the third parties from Buyer on or after the Closing Date, and refer all inquiries it will receive with respect to the Products (other than with respect to Excluded Assets or Excluded Liabilities), to Buyer or its designee; and (ii) Buyer will promptly deliver to Seller any payments received by Buyer from third parties for Finished Goods purchased by third parties from Seller or its Affiliates prior to the Closing.
SECTION 7.3.     Technology Transfer; Assistance with Buyer Regulatory Filings
(a)    Seller and Buyer will use commercially reasonable efforts to effect an orderly transfer of the Product Technology from Seller to Buyer pursuant to the terms of this Agreement as soon as practicable following the Closing Date. Seller will provide reasonable cooperation and assistance to Buyer, including, to the extent reasonably requested by Buyer, making available certain Seller personnel within relevant and appropriate functions and positions during normal business hours as reasonably requested by Buyer, in connection with such transfer of the Product Technology and Buyer’s preparation of all filings required to be filed with the FDA in order to obtain the necessary approvals for the manufacture and sale of on-market Products by Buyer in or for the Territory. Each party will bear the Direct Costs incurred by it and its Affiliates in connection with its activities undertaken under this Section 7.3(a).
(b)    Except with respect to Seller’s assistance in connection with the transfer of the Product Technology as set forth above in Section 7.3(a), Buyer shall have sole responsibility for obtaining, and shall use commercially reasonable efforts to obtain, all regulatory approvals necessary for the offer, sale, importation, manufacture, distribution, marketing, promotion, import, export, pricing and reimbursement of the Products, including, without limitation, supplementing the Product ANDA to include facilities designated by Buyer and to delete Seller’s facilities, and assuming all responsibility for maintenance of the Product ANDAs. All decisions regarding the validation of Products and the conduct of regulatory activities with respect to the Products after the Closing Date shall be made by Buyer in its sole and absolute discretion, and all such regulatory activities shall be at its sole cost.

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SECTION 7.4.     Seller’s NDC Numbers
Buyer and its Affiliates will (i) sell Products only under Buyer NDC Numbers and (ii) not sell any Product under Seller’s or its Affiliates names, in each case, save to the extent contemplated or permitted hereunder (including in Section 2.4(c)) or under the Supply Agreement and subject to, and in compliance with, the terms set forth in Appendix III.

SECTION 7.5.     Competition
(a)    The parties hereto agree and acknowledge that the provisions of this Agreement will not be construed to limit or restrict in any manner the right of Seller or any of its Affiliates to develop, manufacture, use, sell or commercialize in any manner any pharmaceutical product, including any product competitive with the Products if sold under a Product ANDA or other filing that is not being purchased by Buyer as part of the Transferred Assets hereunder, either in the Territory or outside of the Territory.
(b)    Nothing contained in this Agreement will be construed as prohibiting Seller or any of its Affiliates from: (a) acquiring (whether by merger, asset or stock acquisition or otherwise) another company, business or line of products (including by license thereof or through investment therein), which makes, has made, sells, has sold, markets, has marketed, distributes or has distributed or otherwise represents a product which is substantially similar to or equivalent to a Product and continuing to operate such company, business or line of products following such acquisition; or (b) entering into a joint venture, alliance or other similar collaborative arrangement between Seller or any of its Affiliates thereof and any third party which joint venture makes, has made, sells, has sold, markets, has marketed, distributes or has distributed a product which is substantially similar to or equivalent to a Product and continuing to participate in such collaboration.
SECTION 7.6.     Sales Data; Customer
(a)    On the Effective Date, Seller shall deliver to Buyer quarterly net sales data by SKU (as calculated by Seller in accordance with its standard practice) for the previous six (6) month period.
(b)    Within [****] after the Closing Date, Seller shall update the Customer List and the information required to be provided pursuant to Section 7.6(a) as necessary, to ensure that such information remains materially accurate and complete up to and including the Closing Date.
(c)    On or before the date that is [****] prior to the Closing Date, Seller shall deliver to Buyer a report setting forth (i) the monthly sold units per SKU by Customer for the Products (as calculated by Seller in accordance with its standard practice) for the previous six (6) month period and (ii) the current Net Price after all discounts by SKU by Customer.
(d)    On or after the date that is [****] prior to the Closing Date, but in no event earlier than such date, and subject to Section 8.3 hereof, Buyer may contact the Customers and prospective customers to promote the Products and the distribution thereof; provided, for the avoidance of doubt, that prior to such date the Buyer shall not contact any Person to promote the Products and the distribution thereof.


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(e)    The parties hereto agree that as of the Closing Date, Buyer shall be permitted to distribute the Customer Notices to customers that have purchased the Products during the previous six (6) month period (the “ Customers ”).
ARTICLE VIII.
    

CERTAIN COVENANTS AND AGREEMENTS
SECTION 8.1.     Insurance
At all times from the Closing Date through that date which is three (3) years after the termination or expiration of this Agreement, Buyer will maintain product liability and other insurance for itself (either in its own name or in the name of its Affiliates) in amounts, respectively, which are reasonable and customary in the USA pharmaceutical industry for companies of comparable size, provided that in no event shall the product liability insurance amounts be less than $25,000,000 per occurrence and $25,000,000 in the aggregate limit of liability per year. Buyer shall provide the Seller with written proof of such insurance upon Seller’s request.
SECTION 8.2.     Books and Records
Buyer will preserve all books and records included within the Transferred Assets for applicable periods of time as required by the FDA or FTC and, subject to Section 8.3 hereof, make such books and records available for inspection and copying by Seller or its agents upon reasonable request and upon reasonable notice.
SECTION 8.3.     Confidentiality
Each party hereto or its Affiliates or contractors (a “ Disclosing Party ”) may, from time to time, prior to or after the Effective Date, disclose to the other party (the “ Receiving Party ”) information of a technical or non-technical nature that is not generally known to the trade or public. The Receiving Party agrees that it will not use for any purpose other than as necessary to perform its obligations under this Agreement and the Supply Agreement or as otherwise permitted under this Agreement or the Supply Agreement, and will not disclose to anyone in any manner whatsoever, any such information, including, without limitation, information relating in any way to the products, processes, and services of the Disclosing Party, which becomes known to the Receiving Party on or prior to the latter of the date of the (a) termination of this Agreement or (b) termination or expiration of the Supply Agreement. The obligations of this Section 8.3 will not apply to information that (i) is known to the Receiving Party as shown by written records prior to its disclosure by the Disclosing Party or its Affiliates or its contractors; (ii) becomes public information or is generally available to the public other than by an unauthorized act or omission of the Receiving Party; or (iii) is received by the Receiving Party from third parties who are in rightful possession of such information and who are lawfully entitled to disclose such information to the Receiving Party and did not receive such information from Disclosing Party. From and after the Closing Date, the Transferred Assets and all confidential information related solely and exclusively to the Transferred Assets or the manufacture thereof shall be considered the confidential information of Buyer under this Section 8.3 and the obligations of this Section 8.3 in respect thereof will apply to Seller and not the Buyer, and to the extent any confidential information related to the Transferred Assets or the manufacture thereof is used by the Seller in its retained business, the use by Seller of such confidential information in its retained business in the ordinary course shall not be deemed a breach of this Section 8.3; provided,

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however, that, for the avoidance of doubt, confidential information used by Seller in its retained businesses or the manufacture of the Transferred Assets that is not solely and exclusively related to the Transferred Assets shall constitute the confidential information of the Seller. Upon the latter of (x) the date of termination of this Agreement or (y) the termination or expiration of the Supply Agreement, the Receiving Party will return to the Disclosing Party all documents that include confidential information of the Disclosing Party or its contractors (other than the Transferred Assets), including all copies of such documents or extracts therefrom, if any, and will make no further use of such information. To the extent that the confidential information relates to the Products, each Disclosing Party or Receiving Party, as the case may be, shall create an internal firewall and use reasonable best efforts to protect against the disclosure of such information to such Disclosing Party’s or Receiving Party’s, as the case may be, marketing and sales personnel.
SECTION 8.4.     Assumption of Regulatory Commitments
From and after the Closing Date, except as set forth in the terms set forth in Appendix III or the pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement, Buyer will assume control of, and responsibility for all costs and Liabilities arising from or related to any commitments or obligations to any Governmental Entity involving the Products, only to the extent arising from or relating to Product sold by Buyer after the Closing Date, and in the case of any Products that are subject to obtaining FDA approval of any unapproved Product ANDA, transferred to Buyer on the Closing Date.
SECTION 8.5.     Bulk Transfer Laws
Buyer hereby waives compliance by Seller with the provisions of any so-called “bulk transfer law” of any jurisdiction in connection with the sale of the Transferred Assets to Buyer.
SECTION 8.6.     Buyer NDC Numbers; Buyer Trademarks and Buyer Trade Dress Changes
Buyer covenants and agrees that, if not already applied for, immediately following the Effective Date (if permitted by Governmental Rule), or otherwise within five (5) days of the Closing Date, Buyer will apply for and initiate applicable processes to obtain and establish new NDC Numbers (the “ Buyer NDC Numbers ”) and notify Seller thereof.
SECTION 8.7.     Response to Medical Inquiries and Products Complaints
After the Closing Date, except as set forth in the terms set forth in Appendix III or the pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement, Buyer will assume all responsibility for responding to any medical inquiries or complaints about the Products in the Territory.
SECTION 8.8.     Use of Transferred Assets
Nothing contained in this Agreement will be construed as prohibiting Buyer or any of its Affiliates from: (a) acquiring (whether by merger, asset or stock acquisition or otherwise) another company, business or line of products (including by license thereof or through investment therein), which makes, has made, sells, has sold, markets, has marketed, distributes or has distributed or otherwise represents a product which is substantially similar to or equivalent to a Product and continuing to operate such company, business or line of products following such acquisition; or (b) entering into a joint venture, alliance or other similar collaborative arrangement between Buyer or any of its Affiliates thereof and any third party which joint venture makes, has made, sells, has sold,

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markets, has marketed, distributes or has distributed a product which is substantially similar to or equivalent to a Product, and continuing to participate in such arrangement.
ARTICLE IX.
    

OTHER COVENANTS AND AGREEMENTS
SECTION 9.1.     Trade Returns, Medicaid Rebates, Chargebacks
(a)      (i) Buyer will, at its expense, process and bear the cost of returns of any Products bearing Buyer’s NDC Number sold by Buyer or its Affiliates and returned in accordance with Buyer’s returned goods policy (“ Buyer Returns ”) and (ii) Seller will, at its expense, process and bear the cost of returns on or after the Closing Date of all Products other than Buyer Returns.
(b)    Seller and Buyer will be responsible for processing and payment of all Medicaid Reimbursements and Rebates for the Products sold bearing their respective NDC Numbers.
(c)    Seller will be responsible for any and all payments, rebates, administrative fees or chargebacks due to customers under Seller’s contracts for Products bearing the Seller NDC Number which were sold by Seller or its Affiliates (“ Seller Payments ”). Buyer agrees that Seller shall have no responsibility for, and “Seller Payments” shall not include, credits for shelf stock adjustments or similar adjustments resulting from price decreases on or after the Closing Date. Buyer will be responsible for all payments, rebates, administrative fees or chargebacks due in connection with any and all sales of Products by or on behalf of Buyer, other than Seller Payments.
(d)    Notwithstanding any term or provision of this Section 9.1 to the contrary, the parties agree that the terms set forth in Appendix III shall control the obligations of each party with respect to Medicaid Reimbursements and Rebates, returns, rebates, adverse event reporting, audits, administrative fees, chargebacks and shelf stock adjustments as more specifically set forth therein relating to sales of the Transition Products initially supplied to Buyer bearing the Seller NDC Numbers.
SECTION 9.2.     Adverse Experience Reports
Seller shall continue to be responsible for adverse experience reporting to the FDA until the Closing Date. Buyer and Seller shall negotiate in good faith and agree on a process and procedure for sharing adverse event information for the Products in which Seller will manufacture and supply Buyer from a retained ANDA, which shall be documented in a pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement. For all other Products, Seller shall at all times provide to Buyer all adverse drug experience information brought to the attention of Seller in respect of the Products manufactured by Seller, as well as any material events and matters concerning or affecting safety of the Products manufactured by Seller. At and after the Closing, Seller shall cooperate with Buyer’s requests regarding adverse experience information in respect of the Products to ensure that all adverse experience data is transferred to Buyer, including data migration and transition reporting services as requested by Buyer consistent with Schedule 9.2 Each party will bear the Direct Costs incurred by it and its Affiliates in connection with its activities undertaken pursuant to Schedule 9.2. After the Closing Date, subject to this Agreement, the Supply Agreement, the Quality Agreement and any other agreement executed between the parties and/or their Affiliates with respect to any Product, Seller will submit to Buyer all adverse drug experience information brought to the attention of Seller in respect of the Products, as well as any material events

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and matters concerning or affecting safety of the Products. After the Closing Date, any new adverse experience reports or any follow-up adverse experience reports received by Seller will be forwarded to Buyer, together with any source documents. Unless notified otherwise in writing by Buyer, Seller shall forward such reports to:
Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
Attention: Rachel J. Summers
Senior Director, Corporate Drug Safety Operations
Facsimile: (510) 240-6113.

SECTION 9.3.     Transfer of Product ANDAs, Etc.
(a)    Seller will cooperate with Buyer in disclosing any relevant records and reports which are required to be made, maintained and reported pursuant to Governmental Rules in the Territory with respect to the Product ANDAs that are part of the Transferred Assets.
(b)    The parties hereto agree to use their reasonable efforts to take any other actions required by the FDA to effect the transactions contemplated hereby. On the Closing Date, each of the parties hereto will take any actions necessary to affect the transfer of the Product ANDAs from Seller to Buyer, including notices to the FDA regarding such transfer from Seller to Buyer of the Product ANDAs. Each party shall bear its own costs related thereto. The parties shall use their reasonable best efforts and take all necessary actions to cause the transfer of hard copies (to the extent reasonably in Seller’s possession) of the Product ANDAs to Buyer as soon as reasonably practicable after the Closing.
SECTION 9.4.     Further Action; Consents; Filings
(a)    Upon the terms and subject to the conditions hereof, each of Buyer and Seller will use commercially reasonable efforts to (i) take, or cause to be taken, all actions necessary, proper or advisable under applicable Governmental Rules or otherwise to satisfy the conditions to Closing set forth in Article X and consummate and make effective the transactions contemplated by this Agreement, (ii) obtain from the requisite Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (iii) make all necessary filings, and thereafter make any other advisable submissions, with respect to this Agreement and the transactions contemplated by this Agreement required under any applicable Governmental Rules, including without limitation all filings with the FDA or other Governmental Entity needed to obtain approval of Buyer to manufacture the Products in a timely and reasonable manner. Each of Seller and Buyer will provide copies of all non-confidential documents to the other party and its advisors prior to filing and, if requested, will accept all reasonable additions, deletions or changes suggested in connection therewith. Each of Seller and Buyer will furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Governmental Rules in connection with the transactions contemplated by this Agreement.
(b)    Each of Buyer and Seller shall use reasonable best efforts to obtain from the FTC preliminary approval for Buyer as the purchaser of the Transferred Assets. Each of Buyer and

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Seller agrees to cooperate and use its reasonable best efforts vigorously to contest and resist any action, including legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action.
SECTION 9.5.     Compliance with the Federal Trade Commission Decision
Reference is made to the Order. The parties hereto agree that the provisions set forth in Appendix II, which provisions are called for by the Order, are incorporated into this Agreement as if set forth in their entirety in this Agreement. To the extent the provisions of Appendix II conflict with the provisions of this Agreement or the provisions of the Supply Agreement, the provisions of Appendix II shall govern.


SECTION 9.6.     Representations to Customers.
During the [****] period following the Closing, Buyer and Seller each agrees not to make any false and/or disparaging statements about any Product.
SECTION 9.7.     Financial Information.
Seller shall, and shall cause its Affiliates to, use its reasonable best efforts to cause their accountants, auditors, counsel and other representatives to, (i) promptly cooperate with Buyer and provide all reasonable assistance to Buyer and its representatives (including providing Buyer access to its and its auditors’ relevant work papers and historical data as are reasonably required by Buyer to prepare the financial information referred to in this clause (i)) so that Buyer can, at its own cost and expense, prepare within [****] days following the Closing Date any audited and unaudited financial information in accordance with the requirements of Regulation S-X under the Securities Act and all other applicable accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder that Buyer has reasonably determined that it is required to file in a Form 8-K or Form 8-K/A by Buyer as a result of the consummation of the transactions contemplated hereby (after giving effect to the waiver letter received by Buyer from the Securities and Exchange Commission on April 29, 2016 (the “ SEC Waiver Letter ”) and further giving effect to the additional assets being acquired under this Agreement and not referred to in the SEC Waiver Letter ( i.e. , three years of financial information rather than one year of financial information)), (ii) to the extent the Closing Date is on or prior to June 30, 2016, provide to Buyer no later than [****] unaudited financial information reasonably necessary for Buyer to prepare pro forma financial information in respect of the Transaction required to be included in accordance with GAAP in Buyer’s quarterly report on Form 10-Q for the quarter ended June 30, 2016; provided that such unaudited financial information shall be limited to, and in accordance with terms of, that which is required under the SEC Waiver Letter and (iii) provide Buyer, for the twelve (12) month period following the Closing Date, such customary information reasonably requested by the Buyer to the extent relating to the Transferred Assets for inclusion in any registration statement, prospectus, Form 10-Q, Form 10-K or private placement memorandum.  Buyer shall reimburse Seller and its Affiliates for all reasonable and

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documented expenses (other than internal direct labor costs) incurred by Seller and its Affiliates in providing cooperation requested by Buyer pursuant to this Section 9.7.
SECTION 9.8.     Cooperation.
Buyer and Seller agree to provide each other with such information and assistance as is reasonably necessary, at the cost of the requesting party, including access to records and personnel, for the preparation of any Tax Return or for the defense of any Tax claim or assessment related to the Transferred Assets or the Assumed Liabilities, whether in connection with an audit or otherwise; provided that the requesting party shall only reimburse the other party’s reasonable and documented out-of-pocket costs.

ARTICLE X.
    

CONDITIONS PRECEDENT
SECTION 10.1.     Conditions to Each Party’s Obligations
The obligation of Buyer to purchase the Transferred Assets from Seller and assume the Assumed Liabilities and the obligations of Seller to sell, assign, convey and deliver the Transferred Assets to Buyer will be subject to the satisfaction prior to the Closing of the following conditions:
(a)     No Litigation, Injunctions, or Restraints . No temporary restraining order, preliminary or permanent injunction or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement will be threatened or in effect.
(b)     FTC Preliminary Approval . The FTC shall have preliminarily approved the Buyer as the purchaser of the Transferred Assets hereunder.
(c)     Allergan Closing . The Allergan Closing shall have occurred.
(d)     Related Transactions . Prior to or concurrently with the Closing, the transactions contemplated by the Other Acquisition Agreement shall have been consummated.
SECTION 10.2.     Conditions to Obligations of Buyer
The obligation of Buyer to purchase the Transferred Assets from Seller and to assume the Assumed Liabilities is subject to the satisfaction on and as of the Closing of each of the following additional conditions (any or all of which may be waived in whole or in part by Buyer):
(a)     Representations and Warranties . The representations and warranties of Seller set forth in this Agreement will be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein) in all respects as of the Closing as though made on and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct as of such earlier date), and except in each case for breaches of such representations and warranties that would not, individually or in the aggregate, have a Material Adverse Effect.

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(b)     Performance of Obligations of Seller . Seller will have performed or complied in all material respects with the obligations, conditions and covenants required to be performed by it under this Agreement at or prior to the Closing.
(c)     No Material Adverse Effect . There shall not have been a Material Adverse Effect.
(d)     Deliveries . Seller will have duly executed and delivered to Buyer, dated as of the Closing Date, the (i) Assignment and Assumption Agreement, (ii) Bill of Sale and (iii) Seller Officer’s Certificate.
SECTION 10.3.     Conditions to the Obligations of Seller
The obligations of Seller to sell, assign, convey, and deliver the Transferred Assets, or to cause the Transferred Assets to be sold, assigned, conveyed or delivered, as applicable, to Buyer are subject to the satisfaction on and as of the Closing of each of the following additional conditions (any or all of which may be waived in whole or in part by Seller):
(a)     Representations and Warranties . The representations and warranties of Buyer set forth in this Agreement will be true and correct (without giving effect to any materiality or similar qualifications set forth therein) in all respects as of the Closing as though made on and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct as of such earlier date), and except in each case for breaches of such representations and warranties that would not, individually or in the aggregate, have a Material Adverse Effect.
(b)     Performance of Obligations of Buyer . Buyer will have performed in all material respects the obligations required to be performed by it under this Agreement at or prior to the Closing.
(c)     Purchase Price . Buyer will have paid the Purchase Price.
(d)     Deliveries . Buyer will have duly executed and delivered to Seller, dated as of the Closing Date, the (i) Assignment and Assumption Agreement, (ii) the Bill of Sale, and (iii) the Buyer Officer’s Certificate.
ARTICLE XI.
    

TERMINATION, AMENDMENT AND WAIVER
SECTION 11.1.     Termination
(a)    Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:
(i)
by mutual written consent of Seller and Buyer;
(ii)
by Seller if any of the conditions set forth in Section 10.1 or 10.3 will have become incapable of fulfillment and will not have been waived by Seller;
(iii)
by Buyer if any of the conditions set forth in Section 10.1 or 10.2 will have become incapable of fulfillment and will not have been waived by Buyer;

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(iv)
by Seller or Buyer if the Closing does not occur on or prior to one year from the Effective Date; provided, however, that the right to terminate this Agreement pursuant to this clause (iv) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the primary cause of the failure of the Closing to have occurred on or prior to one year from the Effective Date;
(v)
by Seller, if Buyer is not preliminarily approved by the FTC or other necessary Governmental Entity as a purchaser of the Transferred Assets hereunder;
(vi)
by Seller, if the staff of the FTC informs Seller in writing that the staff will not recommend approval of Buyer as purchaser of the Transferred Assets hereunder; or
(vii)
by Seller or Buyer if the Allergan Agreement is terminated prior to the consummation of the transactions contemplated by the Allergan Agreement.
provided , however , that the party seeking termination pursuant to clause (ii), (iii) or (iv) is not in breach of any of its representations, warranties, covenants or agreements contained in this Agreement.
(b)    In the event of termination of this Agreement pursuant to this Section 11.1, written notice thereof will forthwith be given to the other party and the transactions contemplated by this Agreement will be terminated, without further action by any party. If the transactions contemplated by this Agreement are terminated as provided herein:
(i)
Buyer will return all documents and other material received from Seller relating to the Products, the Transferred Assets, the Product Technology, or the transactions contemplated hereby, whether so obtained before or after the execution hereof, to Seller and, if applicable, Seller shall return any delivered portions of the Purchase Price to Buyer;
(ii)
all confidential information received by Buyer with respect to Seller, the Products, the Transferred Assets, the Product Technology will be treated in accordance with Section 8.3, which will remain in full force and effect notwithstanding the termination of this Agreement; and
(iii)
the Supply Agreement shall be terminated.
(c)    If this Agreement is terminated, no party hereto and none of their respective directors, officers, stockholders, Affiliates or controlling Persons shall have any further liability or obligation under this Agreement, except as set forth in paragraphs (a) and (b) of this Section, except that (i) nothing in this Section 11.1 will be deemed to release any party from any liability for any willful and material breach by such party of the terms and provisions of this Agreement, and (ii) the provisions of Section 8.3 shall survive termination of this Agreement.
SECTION 11.2.     Amendments and Waivers
This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, Buyer, on the one hand, or Seller, on the other hand, may waive compliance by the other party with any term or provision of this Agreement that such other party was or is obligated to comply with or perform.

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SECTION 11.3.     Rescission
If at the time the FTC determines to make final and effective its Order concerning the Proposed Allergan Transaction, the FTC notifies Seller that Buyer is not an acceptable purchaser of the Transferred Assets, then each of Seller and Buyer shall have the right immediately to rescind this Agreement, and the provisions of Sections 11.1(b) and 11.1(c) shall be applicable as if a termination of this Agreement had occurred.
SECTION 11.4.     Modification
If at the time the FTC determines to make final and effective its Order concerning the Proposed Allergan Transaction, the FTC notifies Seller that this Agreement is not an acceptable manner of divestiture, Seller and Buyer shall reasonably seek to modify this Agreement as may be necessary to satisfy the FTC.
ARTICLE XII.
    

INDEMNIFICATION
SECTION 12.1.     Survival
All representations and warranties of Seller and Buyer contained herein or made pursuant hereto shall survive the Closing Date and shall remain operative and in full force and effect for a period of twelve (12) months following the Closing Date (the “ Expiration Date ”). Notwithstanding anything herein to the contrary, any breach of a representation or warranty that is the subject of a claim that is asserted in writing prior to the Expiration Date shall survive with respect to such claim or any dispute with respect thereto until the final resolution thereof.


SECTION 12.2.     Indemnification by Seller
(a)    Subject to Section 12.4, Seller hereby agrees that from and after the Closing Date, Seller shall indemnify Buyer and its Affiliates and their respective officers, directors and employees (the “ Buyer Indemnified Parties ”) against, and hold them harmless from, and pay and reimburse such Parties for, any Losses to the extent such Losses arise from the following:
(i)
the failure of any representation or warranty made by Seller contained in this Agreement to be true and accurate as of the Closing;
(ii)
any breach by Seller of any of its covenants, agreements or obligations contained in this Agreement; and
(iii)
any and all Excluded Assets and/or Excluded Liabilities.
SECTION 12.3.     Indemnification by Buyer
(a)    Subject to Section 12.4 hereof, Buyer hereby agrees that from and after the Closing Date, Buyer shall indemnify Seller and its Affiliates and their respective officers, directors and

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employees (the “ Seller Indemnified Parties ”) against, and hold them harmless from, and pay and reimburse such Parties for, any Losses to the extent such Losses arise from the following:
(i)
the failure of any representation or warranty made by Buyer contained in this Agreement to be true and accurate as of the Closing;
(ii)
any breach by Buyer of any of its covenants, agreements or obligations contained in this Agreement; and
(iii)
any and all Transferred Assets and/or Assumed Liabilities.
Buyer Indemnified Parties and Seller Indemnified Parties are sometimes referred to herein as “ Indemnified Parties ”.
SECTION 12.4.    Limitations.  
(a)    The amount of any Losses for which either Seller or Buyer, as the case may be, is liable shall be reduced by (i) the amount of any insurance proceeds actually paid to the Buyer Indemnified Party and the Seller Indemnified Party, as applicable, and (ii) the aggregate amount actually recovered under any Assigned Contract (if applicable) or any other indemnity agreement, contribution agreement, or other Contract between any of the Indemnified Parties, on the one hand, and any third Person, on the other hand, with respect to such Losses.
Notwithstanding the other provisions of this Article XII , Seller shall not have any indemnification obligations for any individual Losses arising from or in connection with Section 12.2(a)(i) unless and until the aggregate amount of all such Losses, together with the amount of
all such Losses under the Other Acquisition Agreement, exceed $2,879,000 (the “ Deductible ”), in which event Seller shall be required to pay the full amount of such Losses to the extent exceeding the Deductible, but only up to a maximum aggregate amount (with respect to this Agreement, together with the full amount of such Losses paid or payable by Seller under the Other Acquisition Agreement) of $57,580,000 (the “ Cap ”); provided , that with respect to any claim to which any Buyer Indemnified Party may be entitled to indemnification under Section 12.2 , Seller shall not be liable for any individual or series of related Losses which do not exceed $100,000 and any Losses with respect thereto shall not be included in Losses for purposes of determining the Deductible or the Cap.
(b)    In no event shall either party or any of its Affiliates be liable by reason of any breach of any representation, warranty, condition or other term of this Agreement or any duty of common law, for any punitive loss or damage and each party hereto agrees that it shall not make any such claim; provided that the foregoing does not limit any of the obligations or liability of either party or its Affiliates under Sections 12.2 and 12.3 with respect to claims of unrelated third parties.
(c)    Neither Seller nor Buyer shall have any Liability under this Agreement in respect of any Loss if such Loss would not have arisen but for (i) a change in legislation or accounting policies after the Closing or (ii) a change in any Law after the Closing or a change in the interpretation of any Law after the Closing as determined by a Governmental Entity.
(d)    For purposes of determining whether a failure of any representation or warranty made by Seller or Buyer contained in this Agreement is true and accurate as of the Closing and for calculating the amount of Losses indemnifiable hereunder, any materiality, Material Adverse Effect or similar qualifications in such representation or warranty shall be disregarded.

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(e)    Except for claims based on fraud, the right of the Buyer Indemnified Parties and the Seller Indemnified Parties under this Article XII shall be the sole and exclusive monetary remedy of the Buyer Indemnified Parties and the Seller Indemnified Parties, as the case may be, with respect to matters covered hereunder, including but not limited to claims relating to the Products, the Transferred Assets or Product Technology, Assumed Liabilities or Excluded Liabilities and no Indemnified Party shall have any other cause of action or remedy at law in equity for breach of contract, rescission, tort, or otherwise against the other party arising under or in connection with this Agreement and the matters and transactions contemplated hereby. Without limiting the generality of the preceding sentence, except in the case of specific performance and for claims based on fraud, no legal action sounding in contribution, tort, or strict liability (in each case, other than claims made or contemplated by this Article XII) may be maintained by an Indemnified Party, or any of its officers, directors, other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, or assigns, against the Seller or Buyer or any of their Affiliates with respect to any matter that is the subject of Article XII, and Buyer and Seller, for themselves and the other Indemnified Parties and each of their respective officers, directors, other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, and assigns, hereby waive any and all statutory rights of contribution or indemnification (other than rights of indemnification hereunder) that any of them might otherwise be entitled to under any Law with respect to any matter that is the subject of this Article XII.
SECTION 12.5.     Procedure
(a)    In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “ Indemnifying Party ”) in writing of its claim for indemnification for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided , however , that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses.
(b)    If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “ Third Party Claim ”), the Indemnifying Party will be entitled to assume the defense of such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall not constitute a Loss), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution

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thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party will obtain the prior written consent of the Indemnified Party (not to be unreasonably withheld) before entering into any settlement, compromise or discharge of such Third Party Claim if (i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or not the Indemnifying Party will have assumed the defense of a Third Party Claim, the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld).
(c)    If an indemnification payment is received by Buyer Indemnified Party or Seller Indemnified Party, as applicable, and such Indemnified Party later receives insurance proceeds in respect of the related Losses or other recoveries under section 12.4(a)(ii) above that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party, an amount equal to the lesser of (A) such insurance proceeds or other recoveries, with respect to such Losses and (B) the net indemnification payment previously paid by such Indemnifying Party with respect to such Losses. Each Indemnified Party shall use reasonable and good faith efforts to collect amounts available under available insurance coverage and promptly and diligently pursue such claims relating to any Losses for which it is seeking indemnification.
(d)    Each Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article XII except and only to the extent that the Indemnifying Party is prejudiced thereby.
ARTICLE XIII.
    

GENERAL PROVISIONS
SECTION 13.1.     Expenses
Except as otherwise specified in this Agreement and the Supply Agreement, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses, whether or not the Closing will have occurred. For the avoidance of doubt, Buyer will not have any obligation to make any payment in respect of the initial Firm Order (as defined in the Supply Agreement) if this Agreement is terminated prior to the Closing Date.

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SECTION 13.2.     Further Assurances and Actions
Each of the parties hereto, upon the request of the other party hereto, whether before or after the Closing and without further consideration, will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably necessary to effect complete consummation of the transactions contemplated by this Agreement. Seller and Buyer agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be reasonably necessary in order to consummate or implement expeditiously the transactions contemplated by this Agreement. From and after the Closing, each of the parties shall cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably requested by the other party hereto with respect to the transactions contemplated hereby.
SECTION 13.3.     Notices
All notices and other communications required or permitted to be given or made pursuant to this Agreement shall be in writing signed by the sender and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (c) on the Business Day after being sent by Federal Express or another recognized overnight mail service which utilizes a written form of receipt for next day or next business day delivery or (d) two (2) Business Days after mailing, if mailed by U.S. postage-prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable party at the address set forth below; provided that a party may change its address for receiving notice by the proper giving of notice hereunder:
if to Seller, to:
Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190
Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and
Teva Pharmaceuticals USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A.
Attention: General Counsel
Fax: (215) 293-6499

With a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP
601 Lexington Avenue

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New York, NY 10022

Attention: Daniel E. Wolf
Facsimile: (212) 446-6460

and

Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005

Attention: Mark Kovner
Facsimile: (202) 879-5200

if to Buyer, to:


Impax Laboratories, Inc.
121 New Britain Blvd.
Chalfont, PA 18914

Attention: President, Global Pharmaceuticals
Facsimile: (215) 558-4344
and

Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
Attention: General Counsel
Facsimile: (510) 240-6096
With a copy (which shall not constitute notice) to:
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY 10004

Attention: Francis J. Aquila and Matthew G. Hurd
Facsimile: (212) 291-9004 / (212) 291-9076
SECTION 13.4.     Headings
The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

SECTION 13.5.     Severability

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If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any law or public policy, all other terms and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
SECTION 13.6.     Counterparts
This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart.
SECTION 13.7.     Entire Agreement; No Third-Party Beneficiaries
This Agreement and the Exhibits and Schedules hereto constitute the entire agreement and supersede all prior agreements and understandings, both written and oral (including any letter of intent, memorandum of understanding or term sheet), between or among the parties hereto with respect to the subject matter hereof. Except as specifically provided herein, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
SECTION 13.8.     Governing Law
This Agreement and any and all matters arising directly or indirectly herefrom shall be governed by and construed and enforced in accordance with the laws of the State of New York, U.S.A. applicable to agreements made and to be performed entirely in such State.
SECTION 13.9.     Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL
(a)    Buyer and Seller agree to irrevocably submit to the exclusive jurisdiction of (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A., for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York, U.S.A. or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail or recognized international courier service to such party’s respective address set forth in Section 13.3 of this Agreement shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Agreement. Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b)    THE BUYER AND THE SELLER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 13.10.     Specific Performance
The parties hereto agree that irreparable damage may occur in the event any provision of this Agreement were not performed in accordance with its terms and that the parties hereto will be entitled to seek specific performance of such terms, in addition to any other remedy at law or in equity, without the necessity of demonstrating the inadequacy of monetary damages and without the posting of a bond.
SECTION 13.11.     Intentionally Omitted
SECTION 13.12.     Publicity
Neither party will make any public announcement concerning, or otherwise publicly disclose, any information with respect to the transactions contemplated by this Agreement or any of the terms and conditions hereof without the prior written consent of the other parties hereto, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may make any public disclosure concerning the transactions contemplated hereby that in the view of such party’s counsel may be required by Law or the rules of any stock exchange on which such party’s or its Affiliates’ securities trade; provided, however, the party making such disclosure will provide the non-disclosing party with a copy of the intended disclosure reasonably, and to the extent practicable, prior to public dissemination, and the parties hereto will coordinate with one another regarding the timing, form and content of such disclosure.

SECTION 13.13.     Assignment
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided , however , that after the Closing Date either party may assign its rights and obligations under this Agreement (including without limitation the Licenses and the covenant not to sue contained in Section 2.5), without the prior written consent of the other party, to an Affiliate or to a successor of the assigning party by reason of merger, sale of all or substantially all of its assets or portion of its business which relates to a Product or any number of the Products, or any similar transaction. Any permitted assignee or successor-in-interest will assume all obligations of its assignor under this Agreement. No assignment will relieve either party of its responsibility for the

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performance of any obligation. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
[signature page follows]

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.

TEVA PHARMACEUTICAL INDUSTRIES LTD.
By: /s/ Dror Bashan  
Name: Dror Bashan  
Title: SVP, Head of M&A, Global BD

By: /s/ Eyal Desheh  
Name: Eyal Desheh  
Title: Executive Vice President, Chief Financial Officer
 
IMPAX LABORATORIES, INC.
By: /s/ G. Frederick Wilkinson  
Name: G. Frederick Wilkinson    
Title: President, Chief Executive Officer  



EXECUTION VERSION


ASSET PURCHASE AGREEMENT
AMONG
ACTAVIS ELIZABETH LLC
ACTAVIS GROUP PTC EHF
ACTAVIS HOLDCO US, INC.
ACTAVIS LLC
ACTAVIS MID ATLANTIC LLC
ACTAVIS PHARMA, INC.
ACTAVIS SOUTH ATLANTIC LLC
ANDRX LLC
BREATH LTD.
THE RUGBY GROUP, INC.
WATSON LABORATORIES, INC.
AND
IMPAX LABORATORIES, INC.
DATED AS OF
JUNE 20, 2016









TABLE OF CONTENTS
 
 
 
 
Page
ARTICLE I. DEFINITIONS
 
 
 
 
 
 
SECTION 1.1.
 
Definitions
 
SECTION 1.2.
 
Interpretation
 
SECTION 1.3.
 
Currency
 
SECTION 1.4.
 
Incorporation by Reference and Supremacy of FTC Order
 
 
 
 
 
ARTICLE II. SALE AND PURCHASE OF TRANSFERRED ASSETS
 
 
 
 
 
 
SECTION 2.1.
 
Purchase and Sale
 
SECTION 2.2.
 
Transferred Assets
 
SECTION 2.3.
 
Assumption of Certain Liabilities and Obligations
 
SECTION 2.4.
 
License to Certain Product Technology; License to Use Certain Information
 
SECTION 2.5.
 
Covenant Not to Sue.
 
SECTION 2.6.
 
Nonassignable Assets.
 
 
 
 
 
ARTICLE III. PURCHASE PRICE
 
 
 
 
 
 
SECTION 3.1.
 
Purchase Price
 
SECTION 3.2.
 
Allocation of Purchase Price
 
SECTION 3.3.
 
Transfer Taxes
 
 
 
 
 
ARTICLE IV. THE CLOSING
 
 
 
 
 
 
SECTION 4.1.
 
Closing Date
 
SECTION 4.2.
 
Transactions to Be Effected at the Closing
 
 
 
 
 
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLERS
 
 
 
 
 
 
SECTION 5.1.
 
Organization; Good Standing
 
SECTION 5.2.
 
Authority; Execution and Delivery
 
SECTION 5.3.
 
Consents; No Violation, Etc.
 
SECTION 5.4.
 
Title to Transferred Assets
 
SECTION 5.5.
 
Litigation
 
SECTION 5.6.
 
Regulatory Issues
 
SECTION 5.7.
 
No Brokers
 
SECTION 5.8.
 
Exclusive Representations and Warranties
 
SECTION 5.9.
 
Regulatory Commitments
 
SECTION 5.10.
 
Contracts to be Assumed; Customers








 
SECTION 5.11.
 
Inventory; Sales; and Cost.
 
SECTION 5.12.
 
Assets.
 
SECTION 5.13.
 
Absence of Certain Changes.
 
 
 
 
 
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER
 
 
 
 
 
 
SECTION 6.1.
 
Buyer’s Organization; Good Standing
 
SECTION 6.2.
 
Authority; Execution and Delivery
 
SECTION 6.3.
 
Consents; No Violations, Etc.
 
SECTION 6.4.
 
Litigation
 
SECTION 6.5.
 
Development
 
SECTION 6.6.
 
No Brokers
 
SECTION 6.7.
 
Availability of Funds
 
SECTION 6.8.
 
Solvency
 
SECTION 6.9.
 
Independent Investigation; No Warranty
 
SECTION 6.10.
 
No Guarantee of FDA Approval
 
 
 
 
 
ARTICLE VII. CERTAIN COVENANTS AND AGREEMENTS OF SELLERS
 
 
 
 
 
 
SECTION 7.1.
 
Conduct of Business Until Closing
 
SECTION 7.2.
 
Post-Closing Orders and Payments
 
SECTION 7.3.
 
Technology Transfer; Assistance with Buyer Regulatory Filings
 
SECTION 7.4.
 
Sellers’ NDC Numbers
 
SECTION 7.5.
 
Competition
 
SECTION 7.6.
 
Sales Data; Customer
 
 
 
 
 
ARTICLE VIII. CERTAIN COVENANTS AND AGREEMENTS
 
 
 
 
 
 
SECTION 8.1.
 
Insurance
 
SECTION 8.2.
 
Books and Records
 
SECTION 8.3.
 
Confidentiality
 
SECTION 8.4.
 
Assumption of Regulatory Commitments
 
SECTION 8.5.
 
Bulk Transfer Laws
 
SECTION 8.6.
 
Buyer NDC Numbers; Buyer Trademarks and Buyer Trade Dress Changes
 
SECTION 8.7.
 
Response to Medical Inquiries and Products Complaints
 
SECTION 8.8.
 
Use of Transferred Assets
 
 
 
 
 
ARTICLE IX. OTHER COVENANTS AND AGREEMENTS
 
 
 
 
 
 
SECTION 9.1.
 
Trade Returns, Medicaid Rebates, Chargebacks
 
SECTION 9.2.
 
Adverse Experience Reports
 
SECTION 9.3.
 
Transfer of Product ANDAs, Etc.
 
SECTION 9.4.
 
Further Action; Consents; Filings
 
SECTION 9.5.
 
Compliance with the Federal Trade Commission Decision
 
SECTION 9.6.
 
Representations to Customers.
 
SECTION 9.7.
 
Financial Information.
 
SECTION 9.8.
 
Cooperation.

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ARTICLE X. CONDITIONS PRECEDENT
 
 
 
 
 
 
SECTION 10.1.
 
Conditions to Each Party’s Obligations
 
SECTION 10.2.
 
Conditions to Obligations of Buyer
 
SECTION 10.3.
 
Conditions to the Obligations of Seller
 
 
 
 
 
ARTICLE XI. TERMINATION, AMENDMENT AND WAIVER
 
 
 
 
 
 
SECTION 11.1.
 
Termination
 
SECTION 11.2.
 
Amendments and Waivers
 
SECTION 11.3.
 
Rescission
 
SECTION 11.4.
 
Modification
 
 
 
 
 
ARTICLE XII. INDEMNIFICATION
 
 
 
 
 
 
SECTION 12.1.
 
Survival
 
SECTION 12.2.
 
Indemnification by Sellers
 
SECTION 12.3.
 
Indemnification by Buyer
 
SECTION 12.4.
 
Limitations.
 
SECTION 12.5.
 
Procedure
 
 
 
 
 
ARTICLE XIII. GENERAL PROVISIONS
 
 
 
 
 
 
SECTION 13.1.
 
Expenses
 
SECTION 13.2.
 
Further Assurances and Actions
 
SECTION 13.3.
 
Notices
 
SECTION 13.4.
 
Headings
 
SECTION 13.5.
 
Severability
 
SECTION 13.6.
 
Counterparts
 
SECTION 13.7.
 
Entire Agreement; No Third-Party Beneficiaries
 
SECTION 13.8.
 
Governing Law
 
SECTION 13.9.
 
Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL
 
SECTION 13.10.
 
Specific Performance
 
SECTION 13.11.
 
Allergan
 
SECTION 13.12.
 
Publicity
 
SECTION 13.13.
 
Assignment
Exhibit A
Assignment and Assumption Agreement
Exhibit B
Bill of Sale
Exhibit C
Products
Exhibit D
Supply Agreement
Exhibit E
Form of Customer Notice
Exhibit F
CMO Letter Agreement
 
 
Appendix I
Proposed Order/Final Order

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Appendix II
Provisions from Order
Appendix III
Seller NDC Number Transition Services



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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of June 20, 2016 (the “ Effective Date ”), is made by and among Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”), Actavis Elizabeth LLC, a Delaware limited liability company (“ Actavis Elizabeth ”), Actavis Group PTC Ehf., an Iceland einkahlutafelag (“ Actavis PTC ”), Actavis Holdco US, Inc., a Delaware corporation (“ Actavis Holdco ”), Actavis LLC, a Delaware limited liability company (“ Actavis LLC ”), Actavis Mid Atlantic LLC, a Delaware limited liability company (“ Actavis Mid Atlantic ”), Actavis Pharma, Inc., a Delaware corporation (“ Actavis Pharma ”), Actavis South Atlantic LLC, a Delaware liability company (“ Actavis South Atlantic ”), Andrx LLC, a Delaware limited liability company (“ Andrx ”), Breath Ltd., a United Kingdom private limited company (“ Breath ”), The Rugby Group, Inc., a New York corporation (“ Rugby ”), and Watson Laboratories, Inc., a Nevada corporation (“ Watson ” and, together with Actavis Elizabeth, Actavis PTC, Actavis Holdco, Actavis LLC, Actavis Mid Atlantic, Actavis Pharma, Actavis South Atlantic, Andrx, Breath and Rugby, each a “ Seller ” and, collectively, the “ Sellers ”).
WHEREAS, the FTC staff has raised the concern that the proposed acquisition (the “ Proposed Allergan Transaction ”) of certain businesses and assets of Allergan plc (“ Allergan ”) by Teva Pharmaceutical Industries Ltd. (“ Teva ”), pursuant to the Allergan Agreement, is likely to produce anticompetitive effects in the alleged relevant product market(s) in the United States for the generic pharmaceutical products listed on Exhibit C (as such products are more specifically identified in this Agreement), which would not be in the public interest, including, but not limited to, by eliminating competition between Teva and Allergan;
WHEREAS, in order to resolve the concerns raised by the FTC staff in these alleged product markets in the United States, Teva has agreed to enter into this Agreement with Buyer to divest certain assets related to these products to Buyer, and to permit Buyer to replace the lost competition by manufacturing, marketing and selling the generic products referred to above into the respective alleged product markets;
WHEREAS, the FTC has or is about to issue an Order governing the scope, nature, extent and requirements of this Agreement;
WHEREAS, Sellers and/or their respective Affiliates sell the Products (as defined herein) commercially and/or have a Product ANDA (as defined herein) filed with the FDA or commercialization rights with respect to the Products;
WHEREAS, upon and subject to the Allergan Closing, Sellers desire to sell to Buyer, and Buyer desires to purchase from Sellers, certain Transferred Assets (as defined herein) related to the Products within the Territory (as defined herein), all upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS, concurrently with the execution of this Agreement, a certain Person who will be an Affiliate of Sellers as of the Closing entered into an asset purchase agreement with Buyer related to the Order (the “ Other Acquisition Agreement ”), pursuant to which such


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Affiliate of Sellers as of the Closing has agreed to sell to Buyer, and Buyer has agreed to purchase from such Affiliate of Sellers as of the Closing, certain Transferred Assets (as defined in the Other Acquisition Agreement) related to the Products (as defined in the Other Acquisition Agreement) within the Territory (as defined in the Other Acquisition Agreement), all upon the terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1.      Definitions
As used in this Agreement, the following terms have the meanings set forth below:
Affiliate ” means any Person that controls, is controlled by, or is under common control with the applicable Person. For purposes of this definition, “control” shall mean: (a) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares entitled to vote for the election of directors, or otherwise having the power to control or direct the affairs of such Person; and (b) in the case of non-corporate entities, direct or indirect ownership of more than fifty percent (50)% of the equity interest or the power to direct the management and policies of such noncorporate entities.
Agreement ” has the meaning set forth in the preamble.
Allergan ” has the meaning set forth in the recitals.
Allergan Agreement ” means the Master Purchase Agreement dated as of July 26, 2015 by and between Allergan and Teva, as it may be amended from time to time.
Allergan Closing ” means the closing of the Proposed Allergan Transaction pursuant to the Allergan Agreement.
Application(s) ” means all of the following: NDA, ANDA, “Supplemental New Drug Application”, or “Marketing Authorization Application”, the applications for a Product filed or to be filed with the FDA pursuant to 21 C.F.R. Part 314 et seq., and all supplements, amendments, and revisions thereto, any preparatory work, registration dossier, drafts and data necessary for the preparation thereof, and all correspondence between the holder and the FDA related thereto. “Application” also includes an “Investigational New Drug Application” filed or to be filed with the FDA pursuant to 21 C.F.R. Part 312, and all supplements, amendments, and revisions thereto, any preparatory work, registration dossier, drafts and data necessary for the preparation thereof, and all correspondence between the holder and the FDA related thereto.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Assigned Contracts ” means the Contracts set forth on Schedule 2.2(a)(vii) , but solely with respect to the applicable Product, or Contracts or arrangements conferring substantially equivalent rights with respect to the applicable Products.
Assigned Patents ” means the patents set forth on Schedule 2.2(a)(vi) hereto and any related registrations or applications for registrations thereof.
Assignment and Assumption Agreement ” means an assignment and assumption agreement to be executed and delivered by Buyer and the applicable Seller(s) at Closing, substantially in the form of Exhibit A .
Assumed Liabilities ” has the meaning set forth in Section 2.3(a).
Bill of Sale ” means a bill of sale to be executed and delivered by the applicable Seller(s) to Buyer at Closing, substantially in the form of Exhibit B .
Budesonide Litigation Bond ” means any payments or recovery, or rights or claims for payment or recovery pursuant to the bonds, costs and fees in connection with AstraZeneca LP v. Apotex, Inc. , Nos. 09-1381, 13-1312, 15-1335 (Fed. Cir. Nov. 1, 2010).
Business Day ” means any day other than a Friday, Saturday, Sunday or other day on which banks in the U.S. or Israel are permitted or required to close by Law.
Buyer ” has the meaning set forth in the preamble.
Buyer Indemnified Parties ” has the meaning set forth in Section 12.2.
Buyer NDC Numbers ” has the meaning set forth in Section 8.6.
Buyer Officer’s Certificate ” means a certificate, dated the Closing Date, duly executed by an authorized officer of Buyer, reasonably satisfactory in form to the Sellers, as to the satisfaction of the conditions set forth in Sections 10.3(a) and (b).
Buyer Returns ” has the meaning set forth in Section 9.1(a).
Cap ” has the meaning set forth in Section 12.4(a).
Catalent ” means Catalent Pharma Solutions, LLC.
Closing ” and “ Closing Date ” have the respective meanings set forth in Section 4.1.
CMO Letter Agreement ” means that certain Letter Agreement Relating to the Supply and Purchase of Certain CMO Products, dated as of the date hereof, by and among Buyer and Sellers and attached hereto as Exhibit F .

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Contracts ” means contracts, leases, licenses, indentures, agreements, purchase orders and all other legally binding arrangements, whether in existence on the date hereof or subsequently entered into, including all amendments thereto.
Customer List ” has the meaning set forth in Section 5.10(c) hereof.
Customer Notice ” means the written notice to be sent to Customers in accordance with Section 7.6, in substantially the form attached hereto as Exhibit E .
Customers ” has the meaning set forth in Section 7.6(d).
Deductible ” has the meaning set forth in Section 12.4(a).
Direct Cost ” means the cost of (i) direct labor and direct material used and (ii) all other reasonable and documented out of pocket expenses, in each case, to provide the relevant assistance or service.
Disclosing Party ” has the meaning set forth in Section 8.3.
Effective Date ” has the meaning set forth in the preamble.
Encumbrance ” means, with respect to any asset, any imperfection of title, mortgage, charge, lien, security interest, easement, right of way, pledge or encumbrance of any nature whatsoever.
Excluded Assets ” has the meaning set forth in Section 2.2(b).
Excluded Liabilities ” has the meaning set forth in Section 2.3(b).
Exhibits ” means, collectively, the Exhibits referred to throughout this Agreement.
Expiration Date ” has the meaning set forth in Section 12.1.
FDA ” means the U.S. Food and Drug Administration.
Finished Goods ” means each of the Products, respectively, packaged, labeled and ready for distribution and sale in finished form.
FTC ” means the U.S. Federal Trade Commission.
GAAP ” means United States generally accepted accounting principles.
Governmental Entity ” means any nation or government or any court, administrative agency or commission or other governmental authority, body or instrumentality, whether U.S. (federal, state, country, municipal or other) or non-U.S.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Governmental Rule ” means any Law, judgment, order, decree, statute, ordinance, rule or regulation enacted, issued or promulgated by any Governmental Entity.
Indemnified Party ” has the meaning set forth in Section 12.3.
Indemnifying Party ” has the meaning set forth in Section 12.5(a).
Knowledge ” of (i) each Seller means all such facts, circumstances or other information, of which Daniel Motto, Sr. (SVP, Business Development & Portfolio Management) and Eric Schumacher (VP Business Development) are actually aware and (ii) Buyer means all such facts, circumstances or other information, of which Frederick Wilkinson (President and Chief Executive Officer), Bryan Reasons (Senior Vice President, Finance and Chief Financial Officer), Mark Schlossberg (Senior Vice President and General Counsel) and Brandon Smith (Senior Vice President, Corporate Development and Strategy) are actually aware.
Law ” means each federal, state, provincial, municipal, local, or foreign law, statute, ordinance, order, determination, judgment, common law, code, rule, official standard, or regulation, enacted, enforced, entered, promulgated, or issued by any Governmental Entity.
Liabilities ” means any and all debts, liabilities and obligations of any kind, nature, character or description, whether accrued or fixed, absolute or contingent, matured or unmatured, or known or unknown, including those arising under any Governmental Rule or action and those arising under any Contract, arrangement, commitment or undertaking, or otherwise.
License ” has the meaning set forth in Section 2.4.
Losses ” means any and all damages, losses, Taxes, Liabilities, claims, judgments, penalties, payments, interest, costs and expenses (including reasonable and documented legal fees, accountants’ fees and expert witnesses’ fees and expenses incurred in investigating and/or prosecuting any claim for indemnification).
Material Adverse Effect ” means an effect which has had, or would reasonably be expected to have, a material adverse effect solely on the Transferred Assets or Product Technology taken as a whole, but will not include (a) any adverse change or effect due to changes in conditions generally affecting (i) the healthcare industry or (ii) the United States economy as a whole, or (b) any change or adverse effect caused by, or relating to (i) the commencement, occurrence, continuation, or intensification of any national or international political conditions, including the engagement by the United States or any other country or group in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States or any other country, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment, or personnel of the United States or any other country or group, (ii) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (iii) any changes in Law or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof, (iv) the occurrence,

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



continuation or intensification of any earthquakes, hurricanes, pandemics, or other natural disasters, or any other force majeure event, whether or not caused by any Person, or any national or international calamity or crisis, (v) compliance with the terms of, or the taking of any action required by, this Agreement or the transactions contemplated hereby (including any action reasonably required by, or condition or other term reasonably imposed by, the FTC in connection with the Order) or (vi) the execution, announcement or pendency of this Agreement and the transactions contemplated by this Agreement; provided, however, that the changes set forth in the foregoing clauses (a)(i), (b)(iii) and (b)(iv) shall be taken into account in determining whether a “Material Adverse Effect” has occurred to the extent (and only to the extent) such changes have a disproportionate impact on the Transferred Assets or the Products, in each case, when compared to similar companies or products in the pharmaceutical industry.
Medicaid Reimbursements and Rebates ” means all discounts, rebates, reimbursements or other payments required by Governmental Rule to be made under Medicaid, Medicare or other governmental special medical assistance programs.
NDC ” means a national drug code as issued by the FDA.
NDC Numbers ” means the NDC Number for each of the Products, respectively.
Net Price ” means the price per unit of Product on a SKU-level basis charged by the applicable Seller as of [****], net of all discounts, rebates or promotions.
Order ” means the Decision and Order relating to the Products issued by the FTC in the proceeding captioned In the Matter of Teva Pharmaceutical Industries Ltd., a corporation.
Other Acquisition Agreement ” has the meaning set forth in the recitals.
Permitted Encumbrances ” means (a) any minor imperfections of title or similar Encumbrance that do not, and would not reasonably be expected to, individually or in the aggregate, materially impair the value or materially interfere with the use of, the Transferred Assets, the Product Technology, (b) Encumbrances for Taxes that are not yet due and payable, (c) Encumbrances that will be released at Closing, (d) statutory Encumbrances arising out of operation of Law with respect to a Liability incurred in the ordinary course of business and which is not delinquent, (e) Encumbrances incurred as a result of any facts or circumstances related to Buyer or its Affiliates and (f) Encumbrances set forth on Schedule 1.1.
Person ” means any individual, corporation, partnership, limited liability company, joint venture, trust, business association, organization, Governmental Entity or other entity.
Product ANDA ” means, for each applicable Product, respectively, the Abbreviated New Drug Application (as defined in the United States Food, Drug, and Cosmetic Act) identified on Exhibit C , and all amendments and supplements thereto, that have been filed with the FDA seeking authorization and approval to manufacture, package, ship and sell such Products, as more fully defined in 21 C.F.R. Part 314 et seq.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Product Approval(s) ” means any approvals, registrations, permits, licenses, consents, authorizations, and other approvals, and pending applications and requests therefor, required by applicable Governmental Entities related to the research, development, manufacture, distribution, finishing, packaging, marketing, sale, storage, or transport of a Product within the United States of America, and includes, without limitation, all approvals, registrations, licenses, or authorizations granted in connection with any Application related to that Product.
Products ” means the Products listed on Exhibit C hereto to be purchased pursuant to this Agreement.
Product Scientific and Regulatory Material ” means, with respect to each Seller, all technological, scientific, development, chemical, biological, pharmacological, toxicological, regulatory, clinical trial materials, product safety related information (including periodic safety update reports and adverse event database information), written correspondence with any Governmental Entity and other data, files, records and other information (in any form or medium, wherever located) similar to the foregoing, in each case to the extent solely related to the Products that are owned by such Seller and in its possession or control.
Product Technology ” means, with respect to each Seller, the following information owned by or to the extent licensed to such Seller, as in existence and in the possession of such Seller as of the Closing Date: the manufacturing technology, proprietary or confidential information, processes, techniques, protocols, methods, improvements and know-how that are necessary to manufacture the Products in accordance with the current applicable Product ANDA, as the case may be, including, but not limited to, the manufacturing process approved in the applicable Product ANDAs, specifications and test methods, raw material, packaging, stability and other applicable specifications, manufacturing and packaging instructions, master formula, validation reports to the extent available, stability data, analytical methods, records of complaints, annual product reviews to the extent available, and other master documents necessary for the manufacture, control and release of the Products as conducted by, or on behalf of, such Seller or any of its Affiliates before the Effective Date. The Product Technology includes without limitation the rights owned or to the extent controlled by such Seller under any patent issued in or subject to a pending application in the Territory as of the Closing Date, and any rights under any patent or patent application outside of the Territory solely to the extent necessary to manufacture the Products outside the Territory for importation to and sale in the Territory. For purposes of this definition, Allergan and its Affiliates will not be deemed to be Affiliates of Seller.
Proposed Allergan Transaction ” has the meaning set forth in the recitals.
Purchase Price ” has the meaning set forth in Section 3.1.
QPSI ” means Quality Packaging Specialists International, LLC.
Quality Agreement ” means the Quality Agreement to be executed by Buyer and Sellers pursuant to the Supply Agreement.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Receiving Party ” has the meaning set forth in Section 8.3.
Schedules ” means, collectively, the Schedules referred to throughout this Agreement.
SEC Waiver Letter ” has the meaning set forth in Section 9.7.
Seller ” or “Sellers” has the meaning set forth in the preamble.
Seller Indemnified Parties ” has the meaning set forth in Section 12.3.
Seller Officer’s Certificate ” means a certificate, dated the Closing Date, duly executed by an authorized officer of Sellers, reasonably satisfactory in form to Buyer, as to the satisfaction of the conditions set forth in Sections 10.2(a), (b) and (c).
Seller Payments ” has the meaning set forth in Section 9.1(c).
Seller Taxes ” means all (i) Taxes arising out of, relating to or otherwise in respect of the Transferred Assets that are attributable to taxable periods, or portions thereof, ending on or prior to the Closing Date, provided that, in the case of any taxable period beginning on or prior to and ending after the Closing Date (a “ Straddle Period ”), Taxes assessed on an annual or other periodic basis allocated to the portion of the taxable period ending on or prior to the Closing Date shall be equal to the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the taxable period ending on or prior to the Closing Date and the denominator of which is the number of days in the entire Straddle Period; and (ii) Taxes imposed on, or incurred by, Sellers or any of their Affiliates for which Sellers or any of their Affiliates are liable that do not arise out of, relate to or otherwise are not in respect of the Transferred Assets.
SKU ” means a stock keeping unit.
Specifications ” has the meaning set forth in the Supply Agreement.
Supply Agreement ” means the Supply Agreement to be executed by Sellers and Buyer, in substantially the form attached hereto as Exhibit D .
Tax(es) ” means all Federal, state, local and foreign taxes, customs, duties, governmental fees and assessments, including all interest, penalties and additions with respect thereto.
Tax Return ” means any report, return, election, notice, estimate, declaration, information statement and other forms and documents (including all schedules, exhibits and other attachments thereto) relating to and filed or required to be filed with a taxing authority in connection with any Taxes (including estimated Taxes).
Territory ” means the United States of America and its territories, protectorates and possessions, including Puerto Rico.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Teva ” has the meaning set forth in the recitals.
Third Party Claim ” has the meaning set forth in Section 12.5(b).
Transferred Assets ” has the meaning set forth in Section 2.2(a).
Transition Products ” has the meaning set forth in Appendix III.
U.S .” or “ U.S.A .” means the United States of America.

SECTION 1.2.      Interpretation
When used in this Agreement, the words “include”, “includes” and “including” will be deemed to be followed by the words “without limitation.” Any terms defined in the singular will have a comparable meaning when used in the plural, and vice-versa.
SECTION 1.3.      Currency
All currency amounts referred to in this Agreement are in U.S. Dollars, unless otherwise specified.
SECTION 1.4.      Incorporation by Reference and Supremacy of FTC Order
(a)      Incorporation of FTC Order . The parties hereby agree and acknowledge that the terms and provisions of the Order of the FTC shall govern this Agreement. A copy of the Order proposed as of the date hereof is attached as Appendix I, and upon issuance by the FTC, the final Order shall replace the currently proposed Order as Appendix I attached hereto without any other action by the parties hereto. The terms and provisions of the Order that pertain to this Agreement are hereby deemed incorporated by reference into this Agreement.
(b)      Supremacy of FTC Order . To the extent that any term or provision of this Agreement conflicts with any corresponding term or provision of the Order, the parties hereby agree that the terms or provisions of the Order shall control the rights and obligations of the parties.
(c)      Publicity of FTC Order . Buyer acknowledges that the Order will be publicly available and will include information regarding the Products, the Buyer and certain information regarding this Agreement and the Ancillary Agreements.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



ARTICLE II.
SALE AND PURCHASE OF TRANSFERRED ASSETS
SECTION 2.1.      Purchase and Sale
Upon the terms and subject to the conditions of this Agreement, on the Closing Date, each Seller will sell, assign, transfer, convey and deliver to Buyer, and Buyer will purchase, acquire and accept, all right, title and interest, within the Territory, of such Seller in, to and under the Transferred Assets free and clear of all Encumbrances other than Permitted Encumbrances.
SECTION 2.2.      Transferred Assets
(a)      The term “ Transferred Assets ” means, with respect to each Seller, the following assets of such Seller, as the same exist on the Closing Date, that relate solely and exclusively to the Products (and for the avoidance of doubt, excluding the Excluded Assets):
(i)
the Product ANDAs;
(ii)
any correspondence with the FDA in such Seller’s possession or control with respect to the Product ANDAs;
(iii)
annual and periodic reports relating to the Product ANDAs which have been filed by or on behalf of such Seller with the FDA, and adverse event reports pertaining to the Products, in each case as are in such Seller’s possession or control;
(iv)
the quantity and delivery terms in all outstanding customer purchase orders for the Products;
(v)
the Product Scientific and Regulatory Material;
(vi)
the Assigned Patents;
(vii)
the Assigned Contracts together with any rights under such Assigned Contracts relating to any quantities of Products manufactured by third party manufacturers and sold to Buyer by any of the Sellers prior to or after the Closing Date in accordance with the CMO Letter Agreement;
(viii)
all of such Seller’s rights, title and interests to any active pharmaceutical ingredients relating to Products held by a contract manufacturer or located at a contract manufacturer’s premises;
(ix)
all of such Seller’s rights, title and interests in the containers used to transport Budesonide (generic Pulmicort);

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(i)
all of such Seller’s rights, title and interests to any work-in-progress relating to Dexmethylphenidate in the custody of either Catalent or QPSI (including such work-in-progress in transit between Catalent and QPSI;
(ii)
all of such Seller’s rights, title and interest to any components and other raw materials (including packaging and labeling materials) in the custody of QPSI for use in connection with Dexmethylphenidate; and
(iii)
any other assets belonging to such Seller that are required to be transferred pursuant to the Order.
(b)      Sellers and Buyer expressly agree and acknowledge that the Transferred Assets will not include any assets of any kind, nature, character or description (whether real personal or mixed, whether tangible or intangible, whether absolute, accrued, contingent, fixed or otherwise, and wherever situated) that are not expressly included within the definition of Transferred Assets (the “ Excluded Assets ”). Excluded Assets include, without limitation, the any refund of Seller Taxes, and all trademarks, and trade names not specifically included in the Transferred Assets, the Budesonide Litigation Bond and all brand names, logotypes, symbols, service marks, and trade dress, and any registrations or applications for registrations of any of the foregoing.
(c)      Buyer acknowledges and agrees that Sellers may retain for archival purposes and for purposes of complying with the Supply Agreement, applicable law and for legal and regulatory purposes as sellers of pharmaceutical products, one copy of all or any part of the documentation that Sellers deliver to Buyer pursuant to Section 2.2(a). The copies will be retained by Sellers’ respective legal counsel and Sellers agree to treat such copies as confidential information (in accordance with Section 8.3 hereof).
SECTION 2.3.     Assumption of Certain Liabilities and Obligations
(a) Buyer will assume, be responsible for and pay, perform and/or otherwise discharge when due those Liabilities (including any Liabilities arising in respect of Taxes) directly arising out of or in connection with or directly related to (x) the Transferred Assets, the use thereof, or the use of the Product Technology by or on behalf of Buyer or its Affiliates or their respective agents or assignees on or after the Closing Date and (y) the marketing, sale or use of the Products by or on behalf of Buyer or its Affiliates or their respective agents or assignees on or after the Closing Date; provided that, for the avoidance of doubt, such Assumed Liabilities shall include: (i) Liabilities arising from any patent infringement claim or lawsuit brought by any third party, the FDA or any other Governmental Entity, in all cases only to the extent that they relate to Product sold on or after the Closing Date; (ii) Liabilities arising from any FDA or any other Governmental Entity action or notification only to the extent that such Liabilities relate to Product sold by or on behalf of Buyer or its Affiliates; (iii) Liabilities arising from any product liability claims relating to Product sold by Buyer or its agents or assignees, except to the extent the Manufacturer (as defined in the Supply Agreement) is liable for such Liabilities pursuant to the Supply Agreement on or after the Closing; (iv) Liabilities arising on or after the Closing Date from any plan of Risk Evaluation

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



and Mitigation Strategies to the extent relating to any of the Products sold by Buyer or its Affiliates, or their respective agents or assignees; and (v) subject to the terms set forth in Appendix III solely with respect to the Transition Products, state and federal Medicaid/Medicare rebates and payments, and all credits, chargebacks, rebates, discounts, allowances, incentives and similar payments in connection with the sale of Products on or after the Closing Date by or on behalf of Buyer or its Affiliates (collectively, the “ Assumed Liabilities ”).
(b) Except to the extent expressly included in the Assumed Liabilities, Buyer will not assume or be responsible or liable for any Liabilities of Sellers or their Affiliates, and shall in no event assume or be responsible or liable for any Liabilities arising out of or in connection with or related to (x) the Transferred Assets, the use thereof or the use of the Product Technology, in each case, by or on behalf of Sellers or their Affiliates or their respective agents or assignees prior to the Closing Date, (y) the marketing, sale or use of the Products by or on behalf of Sellers or their Affiliates or their respective agents or assignees prior to the Closing Date or liabilities that were incurred by Sellers or their Affiliates prior to the Closing Date with respect to the Products and (z) for Seller Taxes (collectively, the “ Excluded Liabilities ”).
SECTION 2.4.      License to Certain Product Technology; License to Use Certain Information
(a)      Each Seller hereby irrevocably grants to Buyer as of the Closing Date (i) a royalty-free exclusive, perpetual license to use the Product Technology that is owned by each such Seller and presently used or held for use solely and specifically for the manufacture of the Products for sale in the Territory and not for other products of each such Seller or for sale in other territories, to market and sell Products in the Territory, and to manufacture Products for marketing and sale in the Territory, and (ii) a royalty-free, non-exclusive, perpetual license to use the Product Technology that is owned by each such Seller and used or held for use not solely and specifically for the manufacture of the Products, to market and sell Products in the Territory and to manufacture Products for marketing and sale in the Territory (the “ Licenses ”). Each of the Licenses includes the right to grant sublicenses.
(b)      Each party may modify or improve the Product Technology. The party making such modifications or improvements shall own all right, title and interest therein.
(c)      Subject to, and in accordance with, the terms set forth in Appendix III, with respect to any Transition Product, (i) each Seller agrees that Buyer may sell such Transition Product bearing such Seller’s NDC Numbers, such Seller’s or its Affiliates’ name, logo, trademark, and other information of such Sellers or its Affiliates, and (ii) each Seller hereby irrevocably grants to Buyer as of the Closing Date a royalty-free, non-exclusive license solely during the Transition Services Period (as defined in Appendix III) applicable to any Transition Product to use such Seller’s NDC Numbers, such Seller’s or its Affiliates’ name, logo, trademark and any other information of such Seller or its Affiliates contained on the labels of such Transition Products solely in connection with the sale of such Transition Products by the Buyer.
SECTION 2.5.      Covenant Not to Sue.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Each of the Sellers and the Buyer hereby covenants that such party and its Affiliates will not bring any suits or claims, or cause or support any licensee or other third party to bring any suits or claims, against the other party or its Affiliates, their manufacturers and importers, or their distributors and customers or their consumers, alleging that the manufacture, use, sale, offer for sale or importation in or for the Territory of the Products, or the equivalent competing products sold by or on behalf of each such Seller in or for the Territory, infringes any patent rights or misappropriates any trade secrets owned or controlled by such party or any of its Affiliates; [****].
SECTION 2.6.      Nonassignable Assets.
(a)      Notwithstanding anything in this Agreement to the contrary, to the extent that the transfer or assignment to Buyer of any Transferred Asset is prohibited by any Governmental Rules or would require any authorizations, approvals, consents or waivers, and such authorizations, approvals, consents or waivers shall not have been obtained, neither this Agreement nor any document delivered pursuant hereto shall constitute a sale, assignment or transfer or an attempted assignment or transfer of such Transferred Asset if the applicable authorization, approval, consent or waiver has not been obtained by (or does not remain in full force and effect at) the Closing, unless and until such third party authorization, approval, consent or waiver is obtained, at which time such Transferred Asset shall be assumed and transferred to Buyer in accordance with the terms and conditions hereof.
(b)      With respect to any such authorizations, approvals, consents, or waivers referred to in Section 2.6(a), following the Closing, the parties shall use their respective reasonable best efforts, and reasonably cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers. Pending such authorizations, approval, consents or waivers, the parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Transferred Assets and to Sellers the benefits or rights that they would have obtained had the Transferred Asset been conveyed to Buyer at the Closing. Once any authorization, approval, consent or waiver referred to in Section 2.6(a) is obtained following Closing, Sellers shall assign, transfer, convey and deliver such Transferred Asset to Buyer at no additional cost to Buyer (other than out of pocket fees, costs and expenses incurred by Buyer in connection with such assignment, transfer, conveyance and delivery).

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ARTICLE III.

PURCHASE PRICE
SECTION 3.1.      Purchase Price
The purchase price for all of the Transferred Assets will be $408,800,000 in cash to be paid on the Closing Date (the “ Purchase Price ”).
SECTION 3.2.      Allocation of Purchase Price
The Purchase Price will be allocated among the Transferred Assets as of the Closing Date in accordance with applicable Law and as set forth in Schedule 3.2. Each of the parties hereto agrees to report (and to cause its Affiliates to report) the transactions contemplated by this Agreement in a manner consistent with applicable Law and with the terms of this Agreement, including the allocation provided in Schedule 3.2, and agrees not to take any position inconsistent therewith in any Tax Return, in any Tax refund claim, in any litigation or otherwise.
SECTION 3.3.      Transfer Taxes
All transfer, sales, value added, stamp duty and similar Taxes payable in connection with the transactions contemplated hereby will be borne by Buyer.
ARTICLE IV.

THE CLOSING
SECTION 4.1.      Closing Date
The closing of the (i) sale and transfer of the Transferred Assets, and (ii) license of the Product Technology pursuant to Section 2.4 (the “ Closing ”) will take place at the offices of Teva at 1090 Horsham Road, North Wales, PA 19454, or at another place designated by Sellers, on the first Business Day following the date on which all of the conditions to each party’s obligations under Article X have been satisfied or (if permitted) waived, or at such other time, date and/or place as mutually agreed to by the parties hereto (such date of the Closing being hereinafter referred to as the “ Closing Date ”). The parties will use their reasonable best efforts to cause the Closing Date to occur on the same date as the date of the Allergan Closing.
SECTION 4.2.      Transactions to Be Effected at the Closing
At the Closing:
(a) Sellers will deliver or cause to be delivered to Buyer each of the items referred to in Section 10.2(d), in each case appropriately executed; and

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b) Buyer will deliver or cause to be delivered to Sellers (i) each of the items referred to in Section 10.3(d), in each case appropriately executed, and (ii) payment of the Purchase Price by wire transfer in immediately available funds, to the account or accounts designated in writing by Sellers to Buyer.
ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller hereby represents and warrants to Buyer as follows:
SECTION 5.1.      Organization; Good Standing
Such Seller is a corporation or entity duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization. Such Seller has the requisite power and authority to own and transfer all rights to the Transferred Assets of such Seller, to license the Product Technology pursuant to Section 2.4 and to carry on its business as currently conducted. Such Seller is duly qualified to conduct business as a foreign corporation and is in good standing in each jurisdiction where the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect. Such Seller is a Respondent to the Order.
SECTION 5.2.      Authority; Execution and Delivery
Such Seller has the requisite corporate or similar power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement by such Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate proceeding is necessary on the part of such Seller. This Agreement has been duly executed and delivered by such Seller and, assuming the due authorization, execution and delivery of this Agreement by Buyer, will constitute the legal, valid and binding obligation of such Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 5.3.      Consents; No Violation, Etc.
The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not:
(a) violate any Governmental Rule applicable to such Seller,
(b) conflict with any provision of the certificate of incorporation or by-laws (or similar organizational document) of such Seller,

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(c) except as set forth on Schedule 5.3, conflict with any contract to which such Seller is a party or by which it is otherwise bound, including any Contract related to any of the Products or result in the creation of any Encumbrance upon any of the Transferred Assets of such Seller (other than a Permitted Encumbrance),
(d) subject to the foregoing clause (c), to the Knowledge of such Seller, violate any rights of any third party; or
(e) require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity other than approval of the FTC,
except, with respect to the foregoing clauses (a) and (c), for such violations or conflicts which would not have a Material Adverse Effect or materially interfere with such Seller’s performance of its obligations hereunder and, with respect to the foregoing clause (e), (i) for receipt of FDA approval of any Product ANDA related to a Product that has not been approved by the FDA as of the Effective Date and (ii) otherwise, for such approvals, authorizations, consents, licenses, exemptions, filings or registrations that, if not obtained or made, would not have a Material Adverse Effect or interfere with such Seller’s performance of its obligations hereunder.
SECTION 5.4.      Title to Transferred Assets
Such Seller has good and valid title to all of the Transferred Assets of such Seller and the right to license the Product Technology pursuant to Section 2.4 free and clear of all Encumbrances, other than Permitted Encumbrances. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OF THE TRANSFERRED ASSETS ARE BEING SOLD, ASSIGNED, CONVEYED OR DELIVERED (AS APPLICABLE) TO BUYER ON AN “AS IS” “WHERE IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL SUCH WARRANTIES ARE DISCLAIMED.
SECTION 5.5.      Litigation
(a)      There is no material suit, claim, action, investigation or proceeding pending or, to the Knowledge of such Seller, threatened against such Seller, that relates to the Transferred Assets of such Seller, the Assumed Liabilities, the Product Technology that (i) challenges or seeks to prevent or enjoin the transactions contemplated by this Agreement, or (ii) has not been disclosed to Buyer in writing on Schedule 5.5(a) prior to the execution of this Agreement.
(b)      Except as set forth on Schedule 5.5(b) hereto, during the twelve-month period ending on the Effective Date (i) such Seller has not received any written notice from any other Person challenging its ownership or rights to use any Product Technology or intellectual property relating to the Products or its right to make, sell, offer for sale or import any

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Products, (ii) there has not been any, and there are no, material suits, claims, actions, investigations or proceedings pending or, to the Knowledge of such Seller, threatened against such Seller, relating to its ownership or rights to use any Product Technology or intellectual property relating to the Products or its right to make, sell, offer for sale or import any Products and (iii) there has not been any, and there are no, product liability suits, claims, actions, investigations or proceedings of any kind, including product liability, tort or breach of contract, pending or, to the Knowledge of such Seller, threatened against such Seller, relating to the Products, the Product Technology.
SECTION 5.6.      Regulatory Issues
(a)      Except as may be disclosed on Schedule 5.6(a) hereto, during the twelve-month period ending on the Effective Date, (i) with respect to the Products only, such Seller has not received: (A) any FDA Form 483s or warning letters directly relating to the Products or the facilities in which the Products are manufactured; or (B) any FDA Notices of Adverse Findings with respect to the Products; and (ii) there has not been a recall or market withdrawal of any Product by such Seller, whether voluntary or involuntary.
(b)      Schedule 5.6(b) hereto sets forth a true and complete list of all documents, each of which has been made available to Buyer, relating to any Product and that set forth information from the last two (2) years relating to (i) adverse drug experience information, (ii) material events and matters concerning or affecting safety and (iii) medical inquiries and complaints brought to the attention of such Seller.
SECTION 5.7.      No Brokers
Except as may be disclosed on Schedule 5.7 hereto, such Seller has not entered into any agreement, arrangement or understanding with any Person or firm which will result in the obligation to pay any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby.
SECTION 5.8.      Exclusive Representations and Warranties
Other than the representations and warranties set forth in this Article V, such Seller is not making any other representations or warranties, express or implied, with respect to the Products or the Transferred Assets or the Product Technology or any other matter, including but not limited to any warranty of merchantability or fitness for a particular purpose or infringement of third party rights, and all such warranties are disclaimed.
SECTION 5.9.      Regulatory Commitments
Such Seller has complied in all material respects with all obligations arising from or related to any commitments to any Governmental Entity involving any Products. Such Seller and its Affiliates have been since January 1, 2014 in compliance in all material respects with all Laws applicable to the Transferred Assets of such Seller and the Product Technology.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SECTION 5.10.      Contracts to be Assumed; Customers
(a)      Other than (i) the Assigned Contracts, (ii) any purchase orders or (iii) other Contracts with Customers there are no other material Contracts related to the Products.
(b)      Each Contract that is a Transferred Asset of such Seller is a legal, valid and binding obligation of such Seller and is in full force and effect and, to the Knowledge of such Seller, each other party thereto, enforceable against such Seller and each other party in accordance with its terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, and subject to the limitations imposed by general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity). Such Seller has performed all material obligations under each such Contract, has not received notice from any party claiming or alleging that such Seller has breached or is in default thereunder and such Seller is not (with or without lapse of time or notice, or both) in material breach or material default thereunder. To the Knowledge of such Seller, each other party to each such Contract is not in material breach or default thereunder.
(c)      Schedule 5.10(c) hereto sets forth (i) a true and complete list of Customers as of the Effective Date (the “ Customer List ”) and (ii) a list of active pharmaceutical ingredients in respect of the Products, the supplier thereof and the cost of such ingredients on a per kilogram basis.
SECTION 5.11.      Inventory; Sales; and Cost.
Schedule 5.11 provides a true and accurate description of the inventory levels in respect of such Seller and the other Sellers’ three largest wholesalers of all Products by SKU as of [****] (or subsequent month end, if available) as communicated to such Seller and the other Sellers by such wholesalers.
SECTION 5.12.      Assets.
Except (i) as set forth in Schedule 5.12 and (ii) for those assets used pursuant to, and materials, goods and services provided under, the Supply Agreement, the Transferred Assets of such Seller, Product Technology, and the rights to be acquired under this Agreement and the Supply Agreement constitute all of the material assets used or held for use by such Seller with respect to the Transferred Assets of such Seller.
SECTION 5.13.      Absence of Certain Changes.
(a)      From July 27, 2015 through the date hereof (the “ Pre-Signing Period ”), such Seller has (i) conducted its business with respect to the Products and the Transferred Assets of such Seller in all material respects in the ordinary course and in substantially the same manner as conducted prior to the Pre-Signing Period and (ii) maintained sales of Products and customer inventory levels in respect thereof in accordance with past practices of such Seller prior to the Pre-Signing Period and reasonable industry standards.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b)      Since June 3, 2016, through the Effective Date, except as required by this Agreement or the Ancillary Agreements or in connection with the consummation of the transaction contemplated hereby, such Seller has not taken any action (or made any omission) that, if taken (or omitted) after the Effective Date without the consent of Buyer would constitute a material violation of Section 7.1.
ARTICLE VI.

REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to each Seller as follows:
SECTION 6.1.      Buyer’s Organization; Good Standing
Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has all requisite corporate power and authority to carry on its business as it is currently being conducted. Buyer is duly qualified to conduct business as a foreign corporation and is in good standing in every jurisdiction where the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not prevent or materially delay the consummation of the transactions contemplated hereby.
SECTION 6.2.      Authority; Execution and Delivery
Buyer has the requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement has been duly executed and delivered by Buyer and, assuming the due authorization, execution and delivery of this Agreement by such Seller, constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 6.3.      Consents; No Violations, Etc.
The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not (i) violate any Governmental Rule applicable to Buyer, (ii) conflict with any provision of the certificate of incorporation or by-laws of Buyer, (iii) conflict with any material contract to which Buyer is a party or by which it is otherwise bound or (iv) require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity, other than approval of the FTC, except with respect to the foregoing clauses (i) and (iii), for such violations or conflicts which would not materially interfere with Buyer’s performance of its

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



obligations hereunder or, with respect to the foregoing clause (iv), for the Order and such approvals, authorizations, consents, licenses, exemptions, filings or registrations which have been obtained or made or which, if not obtained or made, would not materially interfere with Buyer’s performance of its obligations hereunder.
SECTION 6.4.      Litigation
There is no suit, claim, action, investigation or proceeding pending or, to the Knowledge of Buyer, threatened against Buyer or any of its Affiliates which, if adversely determined, would materially interfere with the ability of Buyer to perform its obligations hereunder or the consummation of the transactions contemplated hereby.
SECTION 6.5.      Development
As of the date hereof, Buyer has not begun developing a generic version of any Product, has not filed a Product ANDA for a generic version of any Product, and does not own or have a right to distribute any product under a Product ANDA for a generic version of any Product or the corresponding NDA.
SECTION 6.6.      No Brokers
Buyer has not entered into any agreement, arrangement or understanding with any Person or firm which will result in the obligation to pay any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby for which such Seller could be liable.
SECTION 6.7.      Availability of Funds
At the Closing, Buyer will have cash available to it that is sufficient to enable it to make payment of the Purchase Price, to satisfy all of the Assumed Liabilities and to make all other necessary payments in connection with transactions contemplated by this Agreement.
SECTION 6.8.      Solvency
(a)      Immediately following the Closing, and after giving effect to all of the transactions contemplated by this Agreement, Buyer and its subsidiaries, on a consolidated basis, will be Solvent. In connection with the transactions contemplated by this Agreement, Buyer is not making any transfer of property and is not incurring any Liability with the intent to hinder, delay, or defraud, either present or future creditors of Buyer.
(b)      For purposes of this Agreement, “Solvent” when used with respect to Buyer or the Transferred Assets acquired by Buyer hereunder means, as applicable, that immediately following the Closing Date, (i) the amount of the Present Fair Saleable Value of its assets will, as of such date, exceed all of its known Liabilities as of such date, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the business in which it is

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



engaged or will be engaged, and (iii) such Person will be able to pay its Debts as they become absolute and mature, taking into account the timing of and amounts of cash to be received by it and the timing of and amounts of cash to be payable on or in respect of its Debts.
(c)      For purposes of the definition of “Solvent”: (i) “Debt” means Liability on a Payment Right and “Payment Right” means (A) any right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (B) the right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; (ii) “Present Fair Saleable Value” means, with respect to Buyer or the Transferred Assets being acquired by Buyer hereunder, the amount that may be realized if its aggregate assets (including its goodwill) are sold as an entirety with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises; and (iii) the amount of any contingent Liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured Liability.
SECTION 6.9.      Independent Investigation; No Warranty
(a) Buyer has conducted its own independent investigation, review, and analysis of the Transferred Assets, the Products, the Product Technology and the Assumed Liabilities, has formed an independent judgment concerning the Transferred Assets, the Products, the Product Technology and the Assumed Liabilities and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of such Seller, for such purpose.
(b) Buyer acknowledges and represents that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own investigation and the express representations and warranties of such Seller set forth in this Agreement (including the related portions of the Schedules) and any certificates delivered hereunder; and (b) neither such Seller nor any other Person has made, and the Buyer is not relying on, any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding such Seller, its Affiliates, the Transferred Assets, the Products, the Product Technology or the Assumed Liabilities not expressly set forth in this Agreement (including any information, documents and materials made available to Buyer in any electronic data room or any repository of information, management presentations, or in any other form in expectation of the transactions contemplated hereby), and neither such Seller nor any other Person will have or be subject to any Liability to Buyer or any other Person resulting from the distribution to Buyer or its representatives or Buyer’s use of any such information.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SECTION 6.10.      No Guarantee of FDA Approval
Buyer acknowledges and agrees that such Seller does not guarantee that FDA approval will be obtained for a Product ANDA that has not already been approved by FDA as of the date hereof and makes no representation or warranty hereunder with respect to any Product that has not already been approved by FDA as of the date hereof.
ARTICLE VII.

CERTAIN COVENANTS AND AGREEMENTS OF SELLERS
SECTION 7.1.      Conduct of Business Until Closing
During the period from the date of this Agreement and continuing until the Closing, each Seller agrees that:
(a) Ordinary Course. Such Seller will conduct its business with respect to the Products and the Transferred Assets in all material respects in the ordinary course and in substantially the same manner as presently conducted and in accordance with the Order of the FTC, including, without limitation, (1) (i) maintaining sales of Products and customer inventory levels in respect thereof in accordance with past practices, historical sales data provided by such Seller to Buyer pursuant to Section 7.6 hereof and reasonable industry standards and (ii) not engaging in any special promotional activities including special discounts, and (2) by using commercially reasonable efforts to, in each case in accordance with past practices hereof and reasonably industry standards, (i) not waive any material claims or rights related to the Products or the Transferred Assets, (ii) not terminate, modify or waive any material provision of any Assigned Contract, (iii) with respect to the Products and the Transferred Assets, as applicable, not materially alter the activities and practices with respect to inventory levels of the Products maintained at the wholesale, chain, institutional or retail levels in any material respect, (iv) seek FDA approval for the Product ANDA for any pipeline Product that has not already been approved by the FDA as of the Effective Date, (v) maintain any Product ANDAs that have been approved by the FDA as of the Effective Date, (vi) comply with any Laws and FDA requests or requirements in respect of the Product ANDAs or the manufacture, distribution and sale of any of the Products pursuant to the Product ANDAs, in each case, in any material respect, (vii) maintain any Assigned Patents, (viii) maintain, in all material respects, the assets reasonably necessary to the manufacture of the Products, (ix) maintain sales efforts and sales levels consistent in all material respects with past practice, or (x) not agree, in writing or otherwise, to take or authorize the taking of any actions that conflict with the foregoing; provided, however, that nothing contained herein will be deemed to require the expenditures of any funds outside of the ordinary course of business. Such Seller will not, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), amend or modify any Assigned Contract in a manner adverse to Buyer in any material respect, including any change in any price therein.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b) No Dispositions. Such Seller will not sell, lease, license, encumber, pledge or transfer, or agree to sell, lease, license encumber, pledge or transfer, any of the Transferred Assets, the Product Technology.
(c) No Settlements. Such Seller will not, without the prior written consent of Buyer (such consent not to be unreasonably withheld), (i) settle or agree to settle any claim, suit, action or other proceeding relating to the Products or the Transferred Assets brought against it by any Governmental Entity; provided, however, this Section 7.1(c) shall not apply with respect to the Order or (ii) initiate or agree to initiate any claim, suit, action or other proceeding relating to the Products or the Transferred Assets except to protect the Products or the Transferred Assets.
SECTION 7.2.      Post-Closing Orders and Payments
From and after 12:01 A.M. (New York, New York, USA time) on the day immediately following the Closing Date, (i) each Seller will promptly deliver to Buyer any payments received by each such Seller from third parties for Finished Goods purchased by the third parties from Buyer on or after the Closing Date, and refer all inquiries it will receive with respect to the Products (other than with respect to Excluded Assets or Excluded Liabilities), to Buyer or its designee; and (ii) Buyer will promptly deliver to each such Seller any payments received by Buyer from third parties for Finished Goods purchased by third parties from each such Seller or its Affiliates prior to the Closing.
SECTION 7.3.      Technology Transfer; Assistance with Buyer Regulatory Filings
(a) Sellers and Buyer will use commercially reasonable efforts to effect an orderly transfer of the Product Technology from Sellers to Buyer pursuant to the terms of this Agreement as soon as practicable following the Closing Date. Sellers will provide reasonable cooperation and assistance to Buyer, including, to the extent reasonably requested by Buyer, making available certain Sellers’ personnel within relevant and appropriate functions and positions during normal business hours as reasonably requested by Buyer, in connection with such transfer of the Product Technology and Buyer’s preparation of all filings required to be filed with the FDA in order to obtain the necessary approvals for the manufacture and sale of on-market Products by Buyer in or for the Territory. Each party will bear the Direct Costs incurred by it and its Affiliates in connection with its activities undertaken under this Section 7.3(a).
(b) Except with respect to Sellers’ assistance in connection with the transfer of the Product Technology as set forth above in Section 7.3(a), Buyer shall have sole responsibility for obtaining, and shall use commercially reasonable efforts to obtain, all regulatory approvals necessary for the offer, sale, importation, manufacture, distribution, marketing, promotion, import, export, pricing and reimbursement of the Products, including, without limitation, supplementing the Product ANDA to include facilities designated by Buyer and to delete Sellers’ facilities, and assuming all responsibility for maintenance of the Product ANDAs. All decisions regarding the validation of Products and the conduct of regulatory activities with respect to the Products after the Closing Date shall be made by Buyer in its sole and absolute

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



discretion, and all such regulatory activities shall be at its sole cost. Sellers shall use commercially reasonable efforts in providing reasonable cooperation and pre-launch regulatory assistance to Buyer for unlaunched Products, including making available Sellers’ personnel. In addition, solely with respect to the Supply Pipeline Products, Sellers shall use commercially reasonable efforts to provide validation support services for Supply Pipeline Products from Sellers’ facilities as may be reasonably requested by Buyer. For the avoidance of doubt, Buyer shall bear the reasonable costs (including Direct Costs) incurred by Sellers in connection with any such pre-launch regulatory assistance and validation support services provided pursuant to this Section 7.3(b).
(c) With respect to [****], from and after the Closing Date until the earlier of (i) the receipt of final Product Approval or (ii) [****] following the Closing Date, such Seller agrees to use commercially reasonable efforts to make available to Buyer, upon Buyer’s reasonable request, personnel knowledgeable to answer questions regarding the pre-Closing development of [****] either by teleconference or videoconference; provided that, for the avoidance of doubt, such Seller will not perform technical work in connection with the foregoing assistance. Notwithstanding any term or provision of this Section 7.3 to the contrary, Section 7.3(a) and Section 7.3(b) shall not apply with respect to [****].
SECTION 7.4.      Sellers’ NDC Numbers
Buyer and its Affiliates will (i) sell Products only under Buyer NDC Numbers and (ii) not sell any Product under Sellers’ or their Affiliates names, in each case, save to the extent contemplated or permitted hereunder (including in Section 2.4(c)) or under the Supply Agreement and subject to, and in compliance with, the terms set forth in Appendix III.
SECTION 7.5.      Competition
(a)      The parties hereto agree and acknowledge that the provisions of this Agreement will not be construed to limit or restrict in any manner the right of Sellers or any of their Affiliates to develop, manufacture, use, sell or commercialize in any manner any pharmaceutical product, including any product competitive with the Products if sold under a Product ANDA or other filing that is not being purchased by Buyer as part of the Transferred Assets hereunder, either in the Territory or outside of the Territory.
(b)      Nothing contained in this Agreement will be construed as prohibiting Sellers or any of their Affiliates from: (a) acquiring (whether by merger, asset or stock acquisition or otherwise) another company, business or line of products (including by license thereof or through investment therein), which makes, has made, sells, has sold, markets, has marketed, distributes or has distributed or otherwise represents a product which is substantially similar to or equivalent to a Product and continuing to operate such company, business or line of products following such acquisition; or (b) entering into a joint venture, alliance or other similar collaborative arrangement between Sellers or any of their Affiliates and any third party which joint venture makes, has made, sells, has sold, markets, has marketed, distributes or has distributed a product which is substantially similar to or equivalent to a Product and continuing to participate in such collaboration.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SECTION 7.6.      Sales Data; Customer
(a)      On the Effective Date, Sellers shall deliver to Buyer quarterly net sales data by SKU (as calculated by Sellers in accordance with their standard practice) for the previous six (6) month period.
(b)      Within [****] after the Closing Date, Sellers shall update the Customer List and the information required to be provided pursuant to Section 7.6(a) as necessary, to ensure that such information remains materially accurate and complete up to and including the Closing Date.
(c)      On or before the date that is [****] prior to the Closing Date, Sellers shall deliver to Buyer a report setting forth (i) the monthly sold units per SKU by Customer for the Products (as calculated by Seller in accordance with its standard practice) for the previous six (6) month period and (ii) the current Net Price after all discounts by SKU by Customer.
(d)      On or after the date that is [****] prior to the Closing Date, but in no event earlier than such date, and subject to Section 8.3 hereof, Buyer may contact the Customers and prospective customers to promote the Products and the distribution thereof; provided, for the avoidance of doubt, that prior to such date the Buyer shall not contact any Person to promote the Products and the distribution thereof.
(e)      The parties hereto agree that as of the Closing Date, Buyer shall be permitted to distribute the Customer Notices to customers that have purchased the Products during the previous six (6) month period (the “ Customers ”).
ARTICLE VIII.

CERTAIN COVENANTS AND AGREEMENTS
SECTION 8.1.      Insurance
At all times from the Closing Date through that date which is three (3) years after the termination or expiration of this Agreement, Buyer will maintain product liability and other insurance for itself (either in its own name or in the name of its Affiliates) in amounts, respectively, which are reasonable and customary in the U.S.A. pharmaceutical industry for companies of comparable size, provided that in no event shall the product liability insurance amounts be less than $25,000,000 per occurrence and $25,000,000 in the aggregate limit of liability per year. Buyer shall provide the Sellers with written proof of such insurance upon Sellers’ request.
SECTION 8.2.      Books and Records
Buyer will preserve all books and records included within the Transferred Assets for applicable periods of time as required by the FDA or FTC and, subject to Section 8.3 hereof, make such books and records available for inspection and copying by Sellers or their agents upon reasonable request and upon reasonable notice.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SECTION 8.3.      Confidentiality
Each party hereto or its Affiliates or contractors (a “ Disclosing Party ”) may, from time to time, prior to or after the Effective Date, disclose to the other party (the “ Receiving Party ”) information of a technical or non-technical nature that is not generally known to the trade or public. The Receiving Party agrees that it will not use for any purpose other than as necessary to perform its obligations under this Agreement and the Supply Agreement or as otherwise permitted under this Agreement or the Supply Agreement, and will not disclose to anyone in any manner whatsoever, any such information, including, without limitation, information relating in any way to the products, processes, and services of the Disclosing Party, which becomes known to the Receiving Party on or prior to the latter of the date of the (a) termination of this Agreement or (b) termination or expiration of the Supply Agreement. The obligations of this Section 8.3 will not apply to information that (i) is known to the Receiving Party as shown by written records prior to its disclosure by the Disclosing Party or its Affiliates or its contractors; (ii) becomes public information or is generally available to the public other than by an unauthorized act or omission of the Receiving Party; or (iii) is received by the Receiving Party from third parties who are in rightful possession of such information and who are lawfully entitled to disclose such information to the Receiving Party and did not receive such information from Disclosing Party. From and after the Closing Date, the Transferred Assets and all confidential information related solely and exclusively to the Transferred Assets or the manufacture thereof shall be considered the confidential information of Buyer under this Section 8.3 and the obligations of this Section 8.3 in respect thereof will apply to Sellers and not the Buyer, and to the extent any confidential information related to the Transferred Assets or the manufacture thereof is used by Sellers in their retained business, the use by Sellers of such confidential information in their retained business in the ordinary course shall not be deemed a breach of this Section 8.3; provided, however, that, for the avoidance of doubt, confidential information used by Sellers in their retained businesses or the manufacture of the Transferred Assets that is not solely and exclusively related to the Transferred Assets shall constitute the confidential information of Sellers. Upon the latter of (x) the date of termination of this Agreement or (y) the termination or expiration of the Supply Agreement, the Receiving Party will return to the Disclosing Party all documents that include confidential information of the Disclosing Party or its contractors (other than the Transferred Assets), including all copies of such documents or extracts therefrom, if any, and will make no further use of such information. To the extent that the confidential information relates to the Products, each Disclosing Party or Receiving Party, as the case may be, shall create an internal firewall and use reasonable best efforts to protect against the disclosure of such information to such Disclosing Party’s or Receiving Party’s, as the case may be, marketing and sales personnel.
SECTION 8.4.      Assumption of Regulatory Commitments
From and after the Closing Date, except as set forth in the terms set forth in Appendix III or the pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement, Buyer will assume control of, and responsibility for all costs and Liabilities arising from or related to any commitments or obligations to any Governmental Entity involving the Products, only to the extent arising from or relating to Product sold by Buyer after the Closing

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Date, and in the case of any Products that are subject to obtaining FDA approval of any unapproved Product ANDA, transferred to Buyer on the Closing Date.
SECTION 8.5.      Bulk Transfer Laws
Buyer hereby waives compliance by Sellers with the provisions of any so-called “bulk transfer law” of any jurisdiction in connection with the sale of the Transferred Assets to Buyer.
SECTION 8.6.      Buyer NDC Numbers; Buyer Trademarks and Buyer Trade Dress Changes
Buyer covenants and agrees that, if not already applied for, immediately following the Effective Date (if permitted by Governmental Rule), or otherwise within five (5) days of the Closing Date, Buyer will apply for and initiate applicable processes to obtain and establish new NDC Numbers (the “ Buyer NDC Numbers ”) and notify Sellers thereof.
SECTION 8.7.      Response to Medical Inquiries and Products Complaints
After the Closing Date, except as set forth in the terms set forth in Appendix III or the pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement, Buyer will assume all responsibility for responding to any medical inquiries or complaints about the Products in the Territory.
SECTION 8.8.      Use of Transferred Assets
Nothing contained in this Agreement will be construed as prohibiting Buyer or any of its Affiliates from: (a) acquiring (whether by merger, asset or stock acquisition or otherwise) another company, business or line of products (including by license thereof or through investment therein), which makes, has made, sells, has sold, markets, has marketed, distributes or has distributed or otherwise represents a product which is substantially similar to or equivalent to a Product and continuing to operate such company, business or line of products following such acquisition; or (b) entering into a joint venture, alliance or other similar collaborative arrangement between Buyer or any of its Affiliates thereof and any third party which joint venture makes, has made, sells, has sold, markets, has marketed, distributes or has distributed a product which is substantially similar to or equivalent to a Product, and continuing to participate in such arrangement.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



ARTICLE IX.

OTHER COVENANTS AND AGREEMENTS
SECTION 9.1.      Trade Returns, Medicaid Rebates, Chargebacks
(a) (i) Buyer will, at its expense, process and bear the cost of returns of any Products bearing Buyer’s NDC Number sold by Buyer or its Affiliates and returned in accordance with Buyer’s returned goods policy (“ Buyer Returns ”) and (ii) Sellers will, at their expense, process and bear the cost of returns on or after the Closing Date of all Products other than Buyer Returns.
(b) Sellers and Buyer will be responsible for processing and payment of all Medicaid Reimbursements and Rebates for the Products sold bearing their respective NDC Numbers.
(c) Sellers will be responsible for any and all payments, rebates, administrative fees or chargebacks due to customers under Sellers’ contracts for Products bearing the Seller NDC Number which were sold by any Seller or its Affiliates (“ Seller Payments ”). Buyer agrees that Sellers shall have no responsibility for, and “Seller Payments” shall not include, credits for shelf stock adjustments or similar adjustments resulting from price decreases on or after the Closing Date. Buyer will be responsible for all payments, rebates, administrative fees or chargebacks due in connection with any and all sales of Products by or on behalf of Buyer, other than Seller Payments.
(d) Notwithstanding any term or provision of this Section 9.1 to the contrary, the parties agree that the terms set forth in Appendix III shall control the obligations of each party with respect to Medicaid Reimbursements and Rebates, returns, rebates, adverse event reporting, audits, administrative fees, chargebacks and shelf stock adjustments as more specifically set forth therein relating to sales of the Transition Products initially supplied to Buyer bearing the Seller NDC Numbers.
SECTION 9.2.      Adverse Experience Reports
Sellers shall continue to be responsible for adverse experience reporting to the FDA until the Closing Date. Buyer and Sellers shall negotiate in good faith and agree on a process and procedure for sharing adverse event information for the Products in which Sellers will manufacture and supply Buyer from a retained ANDA, which shall be documented in a pharmacovigilance agreement to be entered into by the parties pursuant to the Supply Agreement. For all other Products, Sellers shall at all times provide to Buyer all adverse drug experience information brought to the attention of Sellers in respect of the Products manufactured by Sellers, as well as any material events and matters concerning or affecting safety of the Products manufactured by Sellers. At and after the Closing, Sellers shall cooperate with Buyer’s requests regarding adverse experience information in respect of the Products to ensure that all adverse experience data is transferred to Buyer, including data migration and transition reporting services as requested by Buyer consistent with Schedule 9.2.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Each party will bear the Direct Costs incurred by it and its Affiliates in connection with its activities undertaken pursuant to Schedule 9.2. After the Closing Date, subject to this Agreement, the Supply Agreement, the Quality Agreement and any other agreement executed between the parties and/or their Affiliates with respect to any Product, Sellers will submit to Buyer all adverse drug experience information brought to the attention of Sellers in respect of the Products, as well as any material events and matters concerning or affecting safety of the Products. After the Closing Date, any new adverse experience reports or any follow-up adverse experience reports received by Sellers will be forwarded to Buyer, together with any source documents. Unless notified otherwise in writing by Buyer, Sellers shall forward such reports to:
Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
 
 
Attention: Rachel J. Summers
Senior Director, Corporate Drug Safety Operations
Facsimile: (510) 240-6113.

SECTION 9.3.      Transfer of Product ANDAs, Etc.
(a) Sellers will cooperate with Buyer in disclosing any relevant records and reports which are required to be made, maintained and reported pursuant to Governmental Rules in the Territory with respect to the Product ANDAs that are part of the Transferred Assets.
(b) The parties hereto agree to use their reasonable efforts to take any other actions required by the FDA to effect the transactions contemplated hereby. On the Closing Date, each of the parties hereto will take any actions necessary to affect the transfer of the Product ANDAs from Sellers to Buyer, including notices to the FDA regarding such transfer from Sellers to Buyer of the Product ANDAs. Each party shall bear its own costs related thereto. The parties shall use their reasonable best efforts and take all necessary actions to cause the transfer of hard copies (to the extent reasonably in each such Seller’s possession) of the Product ANDAs to Buyer as soon as reasonably practicable after the Closing.
SECTION 9.4.      Further Action; Consents; Filings
(a) Upon the terms and subject to the conditions hereof, each of Buyer and Sellers will use commercially reasonable efforts to (i) take, or cause to be taken, all actions necessary, proper or advisable under applicable Governmental Rules or otherwise to satisfy the conditions to Closing set forth in Article X and consummate and make effective the transactions contemplated by this Agreement, (ii) obtain from the requisite Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (iii) make all necessary filings, and thereafter make any other advisable submissions, with respect

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



to this Agreement and the transactions contemplated by this Agreement required under any applicable Governmental Rules, including without limitation all filings with the FDA or other Governmental Entity needed to obtain approval of Buyer to manufacture the Products in a timely and reasonable manner. Each of Sellers and Buyer will provide copies of all non-confidential documents to each other party and its advisors prior to filing and, if requested, will accept all reasonable additions, deletions or changes suggested in connection therewith. Each of Sellers and Buyer will furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Governmental Rules in connection with the transactions contemplated by this Agreement.
(b) Each of Buyer and Sellers shall use reasonable best efforts to obtain from the FTC preliminary approval for Buyer as the purchaser of the Transferred Assets. Each of Buyer and Sellers agree to cooperate and use its reasonable best efforts vigorously to contest and resist any action, including legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action.
SECTION 9.5.      Compliance with the Federal Trade Commission Decision
Reference is made to the Order. The parties hereto agree that the provisions set forth in Appendix II, which provisions are called for by the Order, are incorporated into this Agreement as if set forth in their entirety in this Agreement. To the extent the provisions of Appendix II conflict with the provisions of this Agreement or the provisions of the Supply Agreement, the provisions of Appendix II shall govern.
SECTION 9.6.      Representations to Customers.
During the [****] period following the Closing, Buyer and Sellers each agrees not to make any false and/or disparaging statements about any Product.
SECTION 9.7.      Financial Information.
Sellers shall, and shall cause their Affiliates to, use its reasonable best efforts to cause their accountants, auditors, counsel and other representatives to, (i) promptly cooperate with Buyer and provide all reasonable assistance to Buyer and its representatives (including providing Buyer access to its and its auditors’ relevant work papers and historical data as are reasonably required by Buyer to prepare the financial information referred to in this clause (i)) so that Buyer can, at its own cost and expense, prepare within [****] days following the Closing Date any audited and unaudited financial information in accordance with the requirements of Regulation S-X under the Securities Act and all other applicable accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder that Buyer has reasonably determined that it is required to file in a Form 8-K or Form 8-K/A by Buyer as a result of the consummation of the transactions contemplated hereby (after giving effect to the waiver letter

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received by Buyer from the Securities and Exchange Commission on April 29, 2016 (the “ SEC Waiver Letter ”) and further giving effect to the additional assets being acquired under this Agreement and not referred to in the SEC Waiver Letter ( i.e. , three years of financial information rather than one year of financial information)), (ii) to the extent the Closing Date is on or prior to June 30, 2016, provide to Buyer no later than [****] unaudited financial information reasonably necessary for Buyer to prepare pro forma financial information in respect of the Transaction required to be included in accordance with GAAP in Buyer’s quarterly report on Form 10-Q for the quarter ended June 30, 2016; provided that such unaudited financial information shall be limited to, and in accordance with terms of, that which is required under the SEC Waiver Letter and (iii) provide Buyer, for the twelve (12) month period following the Closing Date, such customary information reasonably requested by the Buyer to the extent relating to the Transferred Assets for inclusion in any registration statement, prospectus, Form 10-Q, Form 10-K or private placement memorandum.  Buyer shall reimburse Sellers and their Affiliates for all reasonable and documented expenses (other than internal direct labor costs) incurred by Sellers and their Affiliates in providing cooperation requested by Buyer pursuant to this Section 9.7.
SECTION 9.8.      Cooperation.
Buyer and Sellers agree to provide each other with such information and assistance as is reasonably necessary, at the cost of the requesting party, including access to records and personnel, for the preparation of any Tax Return or for the defense of any Tax claim or assessment related to the Transferred Assets or the Assumed Liabilities, whether in connection with an audit or otherwise; provided that the requesting party shall only reimburse the other party’s reasonable and documented out-of-pocket costs.
ARTICLE X.

CONDITIONS PRECEDENT
SECTION 10.1.      Conditions to Each Party’s Obligations
The obligation of Buyer to purchase the Transferred Assets from Sellers and assume the Assumed Liabilities and the obligations of Sellers to sell, assign, convey and deliver the Transferred Assets to Buyer will be subject to the satisfaction prior to the Closing of the following conditions:
(a) No Litigation, Injunctions, or Restraints . No temporary restraining order, preliminary or permanent injunction or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement will be threatened or in effect.
(b) FTC Preliminary Approval . The FTC shall have preliminarily approved the Buyer as the purchaser of the Transferred Assets hereunder.
(c) Allergan Closing . The Allergan Closing shall have occurred.

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(d) Related Transactions . Prior to or concurrently with the Closing, the transactions contemplated by the Other Acquisition Agreement shall have been consummated.
SECTION 10.2.      Conditions to Obligations of Buyer
The obligation of Buyer to purchase the Transferred Assets from Sellers and to assume the Assumed Liabilities is subject to the satisfaction on and as of the Closing of each of the following additional conditions (any or all of which may be waived in whole or in part by Buyer):
(a) Representations and Warranties . The representations and warranties of Sellers set forth in this Agreement will be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein) in all respects as of the Closing as though made on and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct as of such earlier date), and except in each case for breaches of such representations and warranties that would not, individually or in the aggregate, have a Material Adverse Effect.
(b) Performance of Obligations of Sellers . Sellers will have performed or complied in all material respects with the obligations, conditions and covenants required to be performed by them under this Agreement at or prior to the Closing.
(c) No Material Adverse Effect . There shall not have been a Material Adverse Effec
(d) Deliveries . Sellers will have duly executed and delivered to Buyer, dated as of the Closing Date, the (i) Assignment and Assumption Agreement, (ii) Bill of Sale and (iii) Seller Officer’s Certificate.
SECTION 10.3.      Conditions to the Obligations of Seller
The obligations of Sellers to sell, assign, convey, and deliver the Transferred Assets, or to cause the Transferred Assets to be sold, assigned, conveyed or delivered, as applicable, to Buyer are subject to the satisfaction on and as of the Closing of each of the following additional conditions (any or all of which may be waived in whole or in part by Sellers):
(a) Representations and Warranties . The representations and warranties of Buyer set forth in this Agreement will be true and correct (without giving effect to any materiality or similar qualifications set forth therein) in all respects as of the Closing as though made on and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct as of such earlier date), and except in each case for breaches of such representations and warranties that would not, individually or in the aggregate, have a Material Adverse Effect.

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(b) Performance of Obligations of Buyer . Buyer will have performed in all material respects the obligations required to be performed by it under this Agreement at or prior to the Closing.
(c) Purchase Price . Buyer will have paid the Purchase Price.
(d) Deliveries . Buyer will have duly executed and delivered to Sellers, dated as of the Closing Date, the (i) Assignment and Assumption Agreement, (ii) the Bill of Sale, and (iii) the Buyer Officer’s Certificate.
ARTICLE XI.

TERMINATION, AMENDMENT AND WAIVER
SECTION 11.1.      Termination
(a) Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:
(i)
by mutual written consent of Sellers and Buyer;
(ii)
by Sellers if any of the conditions set forth in Section 10.1 or 10.3 will have become incapable of fulfillment and will not have been waived by Sellers;
(iii)
by Buyer if any of the conditions set forth in Section 10.1 or 10.2 will have become incapable of fulfillment and will not have been waived by Buyer;
(iv)
by Sellers or Buyer if the Closing does not occur on or prior to one year from the Effective Date; provided, however, that the right to terminate this Agreement pursuant to this clause (iv) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the primary cause of the failure of the Closing to have occurred on or prior to one year from the Effective Date;
(v)
by Sellers, if Buyer is not preliminarily approved by the FTC or other necessary Governmental Entity as a purchaser of the Transferred Assets hereunder;
(vi)
by Sellers, if the staff of the FTC informs Sellers or their Affiliates in writing that the staff will not recommend approval of Buyer as purchaser of the Transferred Assets hereunder; or

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(vii)
by Sellers or Buyer if the Allergan Agreement is terminated prior to the consummation of the transactions contemplated by the Allergan Agreement.
provided , however , that the party seeking termination pursuant to clause (ii), (iii) or (iv) is not in breach of any of its representations, warranties, covenants or agreements contained in this Agreement.
(b) In the event of termination of this Agreement pursuant to this Section 11.1, written notice thereof will forthwith be given to the other party and the transactions contemplated by this Agreement will be terminated, without further action by any party. If the transactions contemplated by this Agreement are terminated as provided herein:
(i)
Buyer will return all documents and other material received from Sellers relating to the Products, the Transferred Assets, the Product Technology, or the transactions contemplated hereby, whether so obtained before or after the execution hereof, to Sellers and, if applicable, Sellers shall return any delivered portions of the Purchase Price to Buyer;
(ii)
all confidential information received by Buyer with respect to Sellers, the Products, the Transferred Assets, the Product Technology will be treated in accordance with Section 8.3, which will remain in full force and effect notwithstanding the termination of this Agreement; and
(iii)
the Supply Agreement shall be terminated.
(c) If this Agreement is terminated, no party hereto and none of their respective directors, officers, stockholders, Affiliates or controlling Persons shall have any further liability or obligation under this Agreement, except as set forth in paragraphs (a) and (b) of this Section, except that (i) nothing in this Section 11.1 will be deemed to release any party from any liability for any willful and material breach by such party of the terms and provisions of this Agreement, and (ii) the provisions of Section 8.3 shall survive termination of this Agreement.
SECTION 11.2.      Amendments and Waivers
This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, Buyer, on the one hand, or Sellers, on the other hand, may waive compliance by the other party with any term or provision of this Agreement that such other party was or is obligated to comply with or perform.
SECTION 11.3.      Rescission
If at the time the FTC determines to make final and effective its Order concerning the Proposed Allergan Transaction, the FTC notifies Sellers or their Affiliates that Buyer is not an acceptable purchaser of the Transferred Assets, then each of Sellers and Buyer shall have the

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



right immediately to rescind this Agreement, and the provisions of Sections 11.1(b) and 11.1(c) shall be applicable as if a termination of this Agreement had occurred.
SECTION 11.4.      Modification
If at the time the FTC determines to make final and effective its Order concerning the Proposed Allergan Transaction, the FTC notifies Sellers or their Affiliates that this Agreement is not an acceptable manner of divestiture, Sellers and Buyer shall reasonably seek to modify this Agreement as may be necessary to satisfy the FTC.
ARTICLE XII.

INDEMNIFICATION
SECTION 12.1.      Survival
All representations and warranties of Sellers and Buyer contained herein or made pursuant hereto shall survive the Closing Date and shall remain operative and in full force and effect for a period of twelve (12) months following the Closing Date (the “ Expiration Date ”). Notwithstanding anything herein to the contrary, any breach of a representation or warranty that is the subject of a claim that is asserted in writing prior to the Expiration Date shall survive with respect to such claim or any dispute with respect thereto until the final resolution thereof.
SECTION 12.2.      Indemnification by Sellers
(a) Subject to Section 12.4, Sellers hereby agree that from and after the Closing Date, Sellers shall indemnify Buyer and its Affiliates and their respective officers, directors and employees (the “ Buyer Indemnified Parties ”) against, and hold them harmless from, and pay and reimburse such Parties for, any Losses to the extent such Losses arise from the following:
(i)
the failure of any representation or warranty made by Sellers contained in this Agreement to be true and accurate as of the Closing;
(ii)
any breach by Sellers of any of their covenants, agreements or obligations contained in this Agreement; and
(iii)
any and all Excluded Assets and/or Excluded Liabilities.
SECTION 12.3.      Indemnification by Buyer
(a) Subject to Section 12.4 hereof, Buyer hereby agrees that from and after the Closing Date, Buyer shall indemnify each Seller and its Affiliates and their respective officers, directors and employees (the “ Seller Indemnified Parties ”) against, and hold them harmless from, and pay and reimburse such Parties for, any Losses to the extent such Losses arise from the following:

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(i)
the failure of any representation or warranty made by Buyer contained in this Agreement to be true and accurate as of the Closing;
(ii)
any breach by Buyer of any of its covenants, agreements or obligations contained in this Agreement; and
(iii)
any and all Transferred Assets and/or Assumed Liabilities.
Buyer Indemnified Parties and Seller Indemnified Parties are sometimes referred to herein as “ Indemnified Parties ”.
SECTION 12.4.      Limitations.  
(a) The amount of any Losses for which either any Seller or Buyer, as the case may be, is liable shall be reduced by (i) the amount of any insurance proceeds actually paid to the Buyer Indemnified Party and the Seller Indemnified Party, as applicable, and (ii) the aggregate amount actually recovered under any Assigned Contract (if applicable) or any other indemnity agreement, contribution agreement, or other Contract between any of the Indemnified Parties, on the one hand, and any third Person, on the other hand, with respect to such Losses.
Notwithstanding the other provisions of this Article XII , Sellers shall not have any indemnification obligations for any individual Losses arising from or in connection with Section 12.2(a)(i) unless and until the aggregate amount of all such Losses, together with the amount of all such Losses under the Other Acquisition Agreement, exceed $2,879,000 (the “ Deductible ”), in which event Sellers shall be required to pay the full amount of such Losses to the extent exceeding the Deductible, but only up to a maximum aggregate amount (with respect to this Agreement, together with the full amount of such Losses paid or payable by Seller under the Other Acquisition Agreement) of $57,580,000 (the “ Cap ”); provided , that with respect to any claim to which any Buyer Indemnified Party may be entitled to indemnification under Section 12.2 , Sellers shall not be liable for any individual or series of related Losses which do not exceed $100,000 and any Losses with respect thereto shall not be included in Losses for purposes of determining the Deductible or the Cap.
(b) In no event shall any party or any of its Affiliates be liable by reason of any breach of any representation, warranty, condition or other term of this Agreement or any duty of common law, for any punitive loss or damage and each party hereto agrees that it shall not make any such claim; provided that the foregoing does not limit any of the obligations or liability of any party or its Affiliates under Sections 12.2 . and 12.3 with respect to claims of unrelated third parties.
(c) Neither Sellers nor Buyer shall have any Liability under this Agreement in respect of any Loss if such Loss would not have arisen but for (i) a change in legislation or accounting policies after the Closing or (ii) a change in any Law after the Closing or a change in the interpretation of any Law after the Closing as determined by a Governmental Entity.

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(d) For purposes of determining whether a failure of any representation or warranty made by any Seller or Buyer contained in this Agreement is true and accurate as of the Closing and for calculating the amount of Losses indemnifiable hereunder, any materiality, Material Adverse Effect or similar qualifications in such representation or warranty shall be disregarded.
(e) Except for claims based on fraud, the right of the Buyer Indemnified Parties and the Seller Indemnified Parties under this Article XII shall be the sole and exclusive monetary remedy of the Buyer Indemnified Parties and the Seller Indemnified Parties, as the case may be, with respect to matters covered hereunder, including but not limited to claims relating to the Products, the Transferred Assets or Product Technology, Assumed Liabilities or Excluded Liabilities and no Indemnified Party shall have any other cause of action or remedy at law in equity for breach of contract, rescission, tort, or otherwise against the other party arising under or in connection with this Agreement and the matters and transactions contemplated hereby. Without limiting the generality of the preceding sentence, except in the case of specific performance and for claims based on fraud, no legal action sounding in contribution, tort, or strict liability (in each case, other than claims made or contemplated by this Article XII) may be maintained by an Indemnified Party, or any of its officers, directors, other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, or assigns, against Sellers or Buyer or any of their Affiliates with respect to any matter that is the subject of Article XII, and Buyer and Sellers, for themselves and the other Indemnified Parties and each of their respective officers, directors, other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, and assigns, hereby waive any and all statutory rights of contribution or indemnification (other than rights of indemnification hereunder) that any of them might otherwise be entitled to under any Law with respect to any matter that is the subject of this Article XII.
SECTION 12.5.      Procedure
(a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “ Indemnifying Party ”) in writing of its claim for indemnification for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided , however , that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses.
(b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “ Third Party Claim ”), the Indemnifying Party will be entitled to assume the defense of such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the

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defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall not constitute a Loss), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party will obtain the prior written consent of the Indemnified Party (not to be unreasonably withheld) before entering into any settlement, compromise or discharge of such Third Party Claim if (i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or not the Indemnifying Party will have assumed the defense of a Third Party Claim, the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld).
(c) If an indemnification payment is received by Buyer Indemnified Party or Seller Indemnified Party, as applicable, and such Indemnified Party later receives insurance proceeds in respect of the related Losses or other recoveries under section 12.4(a)(ii) above that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party, an amount equal to the lesser of (A) such insurance proceeds or other recoveries, with respect to such Losses and (B) the net indemnification payment previously paid by such Indemnifying Party with respect to such Losses. Each Indemnified Party shall use reasonable and good faith efforts to collect amounts available under available insurance coverage and promptly and diligently pursue such claims relating to any Losses for which it is seeking indemnification.
(d) Each Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article XII except and only to the extent that the Indemnifying Party is prejudiced thereby.
ARTICLE XIII.

GENERAL PROVISIONS
SECTION 13.1.      Expenses
Except as otherwise specified in this Agreement and the Supply Agreement, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses, whether or not the Closing will have occurred. For the avoidance of doubt, Buyer will not have any obligation to make any payment in respect of the initial Firm Order (as defined in the Supply Agreement) if this Agreement is terminated prior to the Closing Date.
SECTION 13.2.      Further Assurances and Actions
Each of the parties hereto, upon the request of the other party hereto, whether before or after the Closing and without further consideration, will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably necessary to effect complete consummation of the transactions contemplated by this Agreement. Sellers and Buyer agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be reasonably necessary in order to consummate or implement expeditiously the transactions contemplated by this Agreement. From and after the Closing, each of the parties shall cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably requested by the other party hereto with respect to the transactions contemplated hereby.
SECTION 13.3.      Notices
All notices and other communications required or permitted to be given or made pursuant to this Agreement shall be in writing signed by the sender and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (c) on the Business Day after being sent by Federal Express or another recognized overnight mail service which utilizes a written form of receipt for next day or next business day delivery or (d) two (2) Business Days after mailing, if mailed by U.S. postage-prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable party at the address set forth below; provided that a party may change its address for receiving notice by the proper giving of notice hereunder:

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if to Sellers prior to Closing, to:
Allergan plc
Morris Corporate Center III
400 Interpace Parkway
Parsippany, New Jersey 07054
Attention: Chief Legal Officer and Secretary
Facsimile: +1 (862) 261-8043
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022-4834
Attn: Charles K. Ruck
R. Scott Shean
Facsimile: +1 (212) 751-4864
and
Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190
Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and
Teva Pharmaceutical USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A
Attention: General Counsel
Fax: (215) 293-6499
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Daniel E. Wolf
Facsimile: (212) 446-6460

and

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Attention: Mark Kovner
Facsimile: (202) 879-5200

if to Sellers following Closing, to:
Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190
Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and
Teva Pharmaceutical USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A
Attention: General Counsel
Fax: (215) 293-6499
With a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Daniel E. Wolf
Facsimile: (212) 446-6460
and
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Attention: Mark Kovner
Facsimile: (202) 879-5200

if to Buyer, to:
Impax Laboratories, Inc.
121 New Britain Blvd.
Chalfont, PA 18914

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Attention: President, Global Pharmaceuticals
Facsimile: (215) 558-4344
Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
Attention: General Counsel
Facsimile: (510) 240-6096
With a copy (which shall not constitute notice) to:
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY 10004
Attention: Francis J. Aquila and Matthew G. Hurd
Facsimile: (212) 291-9004 / (212) 291-9076

SECTION 13.4.      Headings
The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
SECTION 13.5.      Severability
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any law or public policy, all other terms and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
SECTION 13.6.      Counterparts
This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart.

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SECTION 13.7.      Entire Agreement; No Third-Party Beneficiaries
This Agreement and the Exhibits and Schedules hereto constitute the entire agreement and supersede all prior agreements and understandings, both written and oral (including any letter of intent, memorandum of understanding or term sheet), between or among the parties hereto with respect to the subject matter hereof. Except as specifically provided herein, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
SECTION 13.8.      Governing Law
This Agreement and any and all matters arising directly or indirectly herefrom shall be governed by and construed and enforced in accordance with the laws of the State of New York, U.S.A. applicable to agreements made and to be performed entirely in such State.
SECTION 13.9.      Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL
(a) Buyer and Sellers agree to irrevocably submit to the exclusive jurisdiction of (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A., for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York, U.S.A. or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail or recognized international courier service to such party’s respective address set forth in Section 13.3 of this Agreement shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Agreement. Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A.
(b) THE BUYER AND THE SELLERS HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL

- 47 -
[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 13.10.      Specific Performance
The parties hereto agree that irreparable damage may occur in the event any provision of this Agreement were not performed in accordance with its terms and that the parties hereto will be entitled to seek specific performance of such terms, in addition to any other remedy at law or in equity, without the necessity of demonstrating the inadequacy of monetary damages and without the posting of a bond.
SECTION 13.11.      Allergan
Notwithstanding anything to the contrary contained herein, Buyer, on behalf of itself and its Affiliates acknowledges that neither Allergan nor any of its Affiliates (other than the Sellers) shall have any Liability under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, including, but not limited to, any dispute related to, or arising from, the Transferred Assets.
SECTION 13.12.      Publicity
No party will make any public announcement concerning, or otherwise publicly disclose, any information with respect to the transactions contemplated by this Agreement or any of the terms and conditions hereof without the prior written consent of the other parties hereto, which consent will not be unreasonably withheld. Notwithstanding the foregoing, any party may make any public disclosure concerning the transactions contemplated hereby that in the view of such party’s counsel may be required by Law or the rules of any stock exchange on which such party’s or its Affiliates’ securities trade; provided, however, the party making such disclosure will provide the non-disclosing party with a copy of the intended disclosure reasonably, and to the extent practicable, prior to public dissemination, and the parties hereto will coordinate with one another regarding the timing, form and content of such disclosure.
SECTION 13.13.      Assignment
None of the parties may assign its rights or obligations under this Agreement without (i) in the case of Sellers, the prior written consent of Buyer, or (ii) in the case of Buyer, the prior written consent of Sellers; provided , however , that after the Closing Date any party may assign its rights and obligations under this Agreement (including without limitation the Licenses and the covenant not to sue contained in Section 2.5), without the prior written consent of the applicable party, to an Affiliate or to a successor of the assigning party by reason of merger, sale of all or substantially all of its assets or portion of its business which relates to a Product or any number of the Products, or any similar transaction. Any permitted assignee or successor-in-interest will assume all obligations of its assignor under this Agreement. No assignment will relieve any party of its responsibility for the performance of any obligation. This Agreement will be binding

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
[signature page follows]

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.
WATSON LABORATORIES, INC.
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President
ACTAVIS HOLDCO US, INC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President
THE RUGBY GROUP, INC.
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President
ANDRX LLC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President
ACTAVIS ELIZABETH LLC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President








ACTAVIS SOUTH ATLANTIC LLC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President

ACTAVIS MID ATLANTIC LLC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President

ACTAVIS PHARMA, INC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President

ACTAVIS LLC
By:
/s/ A. Robert D. Bailey
Name:
A. Robert D. Bailey
Title:
 President

ACTAVIS GROUP PTC ehf
By:
/s/ Guojon Gustafsson
Name:
Guojon Gustafsson
Title:
 Director

By:
/s/ Hafrun Frioriksdottir
Name:
Hafrun Frioriksdottir

- 51 -



Title:
 Director

By:
 /s/ Daniel Motto
Name:
Daniel Motto
Title:
 Director

BREATH LTD.
By:
/s/ Sara Vincent
Name:
Sara Vincent
Title:
 Director

IMPAX LABORATORIES, INC.
By:
/s/ G. Frederick Wilkinson
Name:
G. Frederick Wilkinson
Title:
 President, Chief Executive Officer


- 52 -


EXECUTION VERSION








SUPPLY AGREEMENT
BETWEEN
TEVA PHARMACEUTICAL INDUSTRIES LTD.
AND
IMPAX LABORATORIES, INC.
DATED AS OF
JUNE 20, 2016








TABLE OF CONTENTS
 
Page

 
 
Article I. DEFINITIONS
3

 
 
Section 1.1. Definitions.
3

Section 1.2. Incorporation by Reference and Supremacy of FTC Order
5

 
 
Article II.
 
 
 
MANUFACTURE AND SALE OF SUPPLY PRODUCTS
5

 
 
Section 2.1. Engagement.
5

Section 2.2. Sale and Distribution.
6

Section 2.3. Packaging and Labeling.
6

Section 2.4. Facility Maintenance; Inspection; Reports.
6

Section 2.5. Adverse Events.
7

 
 
Article III.
 
 
 
FORECASTS, ORDERS AND SHIPMENT
8

 
 
Section 3.1. Forecasts.
8

Section 3.2. Orders.
8

Section 3.3. Delivery.
9

 
 
Article IV.
 
 
 
REPRESENTATIONS AND WARRANTIES
10

 
 
Section 4.1. Representations and Warranties of the Manufacturer.
10

Section 4.2. Representations and Warranties of the Buyer.
12

 
 
Article V.
 
 
 
QUALITY ASSURANCE
12

 
 
Section 5.1. The Manufacturer’s Covenants.
12

Section 5.2. The Buyer’s Covenants
13

Section 5.3. Rejection of Delivered Supply Products.
13

Section 5.4. Non-Conforming Supply Products.
14

Section 5.5. Recall.
14

Section 5.6. Quality Procedures.
14

Section 5.7. Regulatory Communications.
15








Article VI.
 
 
 
PRICE AND PAYMENTS
15

 
 
Section 6.1. Prices.
15

Section 6.2. Adjustment.
15

Section 6.3. Invoices.
16

Section 6.4. Taxes, etc.
16

Section 6.5. Separate Sale.
16

Section 6.6. Deductions.
16

 
 
Article VII.
 
 
 
TERM AND TERMINATION
17

 
 
Section 7.1. Term.
17

Section 7.2. Termination.
17

Section 7.3. Effects of Termination.
18

 
 
Article VIII.
 
 
 
FORCE MAJEURE
19

 
 
Section 8.1. Force Majeure.
19

 
 
Article IX.
 
 
 
CONFIDENTIALITY
20

 
 
Section 9.1. Non-disclosure and Non-use Obligation.
20

 
 
Article X.
 
 
 
INDEMNIFICATION
21

 
 
Section 10.1. By the Manufacturer.
21

Section 10.2. By the Buyer.
21

Section 10.3. Procedures.
21

Section 10.4. Insurance.
21

Section 10.5. Limitations.
21

 
 
Article XI.
 
 
 
INTELLECTUAL PROPERTY RIGHTS
22

 
 
Section 11.1. License.
22


ii





Article XII.
 
 
 
MISCELLANEOUS
22

 
 
Section 12.1. Assignment.
22

Section 12.2. Severability.
23

Section 12.3. Notices.
23

Section 12.4. Applicable Law.
25

Section 12.5. Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL.
25

Section 12.6. Entire Agreement.
26

Section 12.7. Headings.
26

Section 12.8. Independent Contractors.
26

Section 12.9. Intentionally Omitted
27

Section 12.10. Waiver.
27

Section 12.11. Counterparts.
27

Section 12.12. No Benefit to Third Parties.
27

 
 
Exhibits and Schedules
Schedule 1.1
Specifications
Schedule 3.2(d)
Initial Firm Order
Schedule 3.2(f)
Certain Products
Schedule 4.1(a)
Minimum Shelf Life
Schedule 6.1
Transfer Prices and Batch Quantities


iii





SUPPLY AGREEMENT
This Supply Agreement (this “ Supply Agreement ”), dated as of June 20, 2016, by and between Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”), and Teva Pharmaceutical Industries Ltd., an Israeli corporation, acting directly or through its Affiliates (“ Teva ” or the “ Manufacturer ”).

WITNESSETH:

WHEREAS, the United States Federal Trade Commission (“ FTC ”) Staff has raised the concern that the proposed acquisition (the “ Proposed Allergan Transaction ”) of certain businesses and assets of Allergan plc (“ Allergan ”) by Teva pursuant to that Master Purchase Agreement dated as of July 26, 2015, by and between Allergan and Teva, as it may be amended from time to time (the “ Master Purchase Agreement ”), may produce anti-competitive effects in the alleged relevant product market(s) in the United States for the generic pharmaceutical on-market products listed on Schedule 6.1 (as such products are more specifically identified in this Supply Agreement), which would not be in the public interest, including, but not limited to, by eliminating competition between Teva and Allergan;

WHEREAS, in order to resolve the concerns raised by the FTC Staff in these alleged product markets in the United States, Teva has agreed to divest certain assets relating to these products to the Buyer, to permit the Buyer to replace the lost competition by manufacturing, marketing and selling the generic products referred to above into the respective alleged product markets;

WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of the date hereof, by and between the Buyer and the Manufacturer (the “ Asset Purchase Agreement ”), the Buyer purchased certain assets relating to the Supply Products (the “ Acquisition ”);

WHEREAS, in connection with the Acquisition, the Buyer desires to engage the Manufacturer to manufacture and/or supply the Supply Products to the Buyer on a transitional basis, and to provide the Buyer with ample opportunity to establish its own Manufacturing capabilities, whether directly or through a third-party, upon the terms and subject to the conditions set forth herein;

WHEREAS, the Manufacturer wishes to manufacture and/or supply the Supply Products to the Buyer upon the terms and subject to the conditions set forth herein;

WHEREAS, concurrently with the execution of this Supply Agreement, certain Persons who will be Affiliates of Manufacturer as of the Closing entered into a supply agreement with the Buyer related to the Order (the “ Other Supply Agreement ”), pursuant to which (i) the Buyer agrees to engage the Affiliates of Manufacturer as of the Closing to manufacture and/or supply the Supply Products (as defined in the Other Supply Agreement) to the Buyer on a transitional basis, and to provide the Buyer with ample opportunity to establish its own Manufacturing (as defined in the Other Supply Agreement) capabilities, whether directly or through a third party, all upon the terms and conditions set forth therein and (ii) the Affiliates of

1

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Manufacturer as of the Closing agree to Manufacture (as defined in the Other Supply Agreement) and/or supply the Supply Products (as defined in the Other Supply Agreement) to the Buyer upon the terms and subject to the conditions set forth therein; and

WHEREAS, the FTC has or is about to issue an Order governing the scope, nature, extent and requirements of this Supply Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

2

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Article I.

DEFINITIONS
Section 1.1. Definitions.

Any capitalized terms or any other terms specifically defined in the Asset Purchase Agreement and used herein will have the meaning ascribed to them in the Asset Purchase Agreement, unless otherwise expressly set forth below or herein. As used herein the words “including” or “includes” shall be deemed to mean “including, without limitation,” or “includes, without limitation”.

As used in this Supply Agreement, the following terms will have the meanings ascribed to them below:

(a) [****] Customers ” means the retailers, wholesalers, and distributors whose [****] in units, of that Supply Product to U.S. customers during the [****] period prior to the date hereof.
(b) Actual Manufacturing Costs ” has the meaning set forth in Section 6.1.

(c) ANDA ” means the abbreviated new drug application for each Supply Product as approved by the FDA.

(d) API ” means active pharmaceutical ingredient.

(e) Asset Purchase Agreement ” has the meaning set forth in the Recitals.

(f) [****] ” has the meaning set forth in Section 6.2(a).

(g) Buyer Taxes ” has the meaning set forth in Section 6.4.

(h) Buyer Trademark ” has the meaning set forth in Section 11.1.

(i) cGMP Requirements ” means the FDA’s current good manufacturing practice requirements as promulgated under the FFDCA at 21 C.F.R. (parts 11, 210 and 211), and as further defined by FDA guidance documents, as such may be amended from time to time.

(j) COA ” has the meaning set forth in Section 3.3(b).

(k) COC ” has the meaning set forth in Section 3.3(b).

(l) Extended Term ” has the meaning set forth in Section 7.1.

(m) FFDCA ” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq ., as amended.


3

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(n) Firm Order ” has the meaning set forth in Section 3.2.

(o) [****] ” [****].

(p) Force Majeure ” has the meaning set forth in Section 8.1.

(q) Forecast ” has the meaning set forth in Section 3.1.

(r) Forms ” has the meaning set forth in Section 12.6.

(s) FTC Interim Monitor ” means the monitor appointed by the FTC pursuant to the Decision and Order in In the Matter of Teva Pharmaceutical Industries Ltd. in 2016 relating to the Proposed Allergan Transaction.

(t) [****] ” has the meaning set forth in Section 6.1.

(u) Initial Term ” has the meaning set forth in Section 7.1.

(v) Manufacturer ” has the meaning set forth in the preamble.

(w) Manufacturing ” or “ Manufactured ” means the manufacture and packaging of Supply Products, including, without limitation, mix, fill and finish.

(x) Master Purchase Agreement ” has the meaning set forth in the recitals.

(y) [****] ” means the [****].

(z) Party ” or “ Parties ” means the Manufacturer and/or the Buyer, as applicable.

(aa) Purchase Order Date ” has the meaning set forth in Section 3.2(a).

(bb) [****] ” means the [****].

(cc) Specifications ” means the requirements and standards for the Supply Products set forth on Schedule 1.1 , as amended or supplemented in accordance with this Supply Agreement.

(dd) Successful Product Technology Transfer ” has the meaning set forth in Section 7.1

(ee) Supply Agreement ” has the meaning set forth in the preamble.

(ff) Supply Failure ” means, [****], the inability of Manufacturer to supply at least [****] percent ([****]%) of ordered quantities of Supply Product to Buyer for a period of at least [****] following the confirmed delivery date set forth in a Firm Order.

4

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(gg) Supply Products ” means the generic pharmaceutical on-market Supply Products listed on Schedule 6.1 that are to be supplied by the Manufacturer to the Buyer hereunder.

(hh) Term ” has the meaning set forth in Section 7.1.

(ii) Transfer Prices ” means the amount(s) to be paid by the Buyer to the Manufacturer pursuant to Section 6.1 and as may be adjusted from time to time pursuant to Section 6.2.

Section 1.2. Incorporation by Reference and Supremacy of FTC Order

(a) Incorporation of FTC Order . The Parties hereby agree and acknowledge that the terms and provisions of the Order of the FTC shall govern this Supply Agreement. The terms and provisions of the Order that pertain to this Supply Agreement are hereby deemed incorporated by reference into this Supply Agreement.

(b) Supremacy of FTC Order. To the extent that any term or provision of this Supply Agreement conflicts with any corresponding term or provision of the Order, the Parties hereby agree that the terms or provisions of the Order shall control the rights and obligations of the Parties.
(c) Supremacy of Certain Terms and Provisions of this Supply Agreement . Notwithstanding the application of Section 1.2(b), above, the Parties hereby agree that to the extent that any terms or provisions of this Supply Agreement do not conflict with the Order, but confer greater rights or benefits to the Buyer, or more greatly obligate the Manufacturer, than the corresponding terms or provisions of the Order, then the terms or provisions of this Supply Agreement shall control the rights and obligations of the Parties.

Article II.

MANUFACTURE AND SALE OF SUPPLY PRODUCTS

Section 2.1. Engagement.

During the Term and upon the terms and subject to the conditions set forth herein, the Buyer hereby agrees to purchase from Manufacturer and the Manufacturer agrees to supply the Supply Products to Buyer for sale by Buyer in the Territory. The Manufacturer shall have the right to subcontract its obligations under this Supply Agreement to a third party; provided, however that the Manufacturer shall be responsible for all the acts and omissions of the subcontractor and no subcontract shall release the Manufacturer from its responsibility for its obligations under this Supply Agreement.


5

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 2.2. Sale and Distribution.

The Buyer will sell the Supply Products only in the Territory and will not directly or indirectly sell or otherwise distribute the Supply Products outside of the Territory. The Buyer shall have the sole and exclusive right to determine all terms and conditions of sale by it of the Supply Products.

Section 2.3. Packaging and Labeling.

Supply Products and all labeling and packaging used in connection therewith shall include the appropriate product trademarks associated with any specific Supply Product, in the manner and to the extent specified in the Specifications. The Buyer will be responsible for ensuring the accuracy of all information contained on all labels for Supply Products and for the compliance of all such labels with applicable Governmental Rules. The Manufacturer will, or will cause its contractors to, supply all packaging and labels for Supply Products under this Supply Agreement. Such packaging and labels will be in accordance with the Specifications. The Manufacturer will make any changes to labeling and packaging specifications required in writing by the Buyer, at the Buyer’s sole cost and expense, within a reasonable timeframe to be agreed upon in writing by both Parties. The Buyer will be responsible for submitting any such changes to all applicable Governmental Entities for approval, if required, and the Manufacturer shall provide all support and documents reasonably necessary in this regard.

Section 2.4. Facility Maintenance; Inspection; Reports.

(a) The Manufacturer shall, at all times, maintain and operate, or cause its contractors to maintain and operate, all facilities where Supply Products are manufactured, packaged, tested, stored, warehoused or shipped, and implement such quality control procedures, as is reasonably required so as to be able to perform its obligations hereunder in accordance with all applicable Governmental Rules, including without limitation, the cGMP Requirements. Not more than [****] (or more often for follow‑up audits or inspections directed at significant or critical quality issues observed during the regular audit or brought to the Buyer’s attention through customer complaints or claims or by Governmental Entities), the Manufacturer shall permit, or cause its contractors to permit, quality assurance representatives of the Buyer or designated third parties to inspect such facilities, operations, documents, and records related to the handling, manufacture, testing, inspection, packaging, storage, disposal and transportation of the Supply Products by the Manufacturer or the applicable contractor upon reasonable notice (which shall not be less than [****]), during normal business hours and on a confidential basis. The Manufacturer shall also permit, and cause its contractors to permit, representatives of the FDA to inspect such facilities as requested by the FDA. The Manufacturer shall promptly provide, or cause its contractor to provide, the Buyer with a copy of any FDA Form 483s received at the conclusion of an inspection relating to any Supply Product or any facility where any Supply Product is Manufactured (to the extent the observation affects the Manufacture of the Supply Product).

6

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




(b) The Manufacturer shall maintain adequate and accurate records consistent with the applicable Specifications, including records covering quality control testing and release of the Supply Products and all other Manufacturing services provided hereunder in material compliance with the cGMP Requirements and any other relevant Governmental Rules, at all times during the performance of the Manufacturing services and for a period as required by Governmental Rules.

(c) The Manufacturer shall promptly notify Buyer of any FDA inspection of the Manufacturing facilities (but in any event no later than [****] after the commencement of such inspection) if such inspection pertains to any Supply Product and, in such case, shall make all such records available to the FDA as required by applicable Governmental Rules. The Manufacturer shall promptly notify Buyer of any such disclosure and shall provide copies of any records made available to FDA, but only if and to the extent the same relate to the Supply Products and the Manufacturer’s obligations hereunder (redacted as appropriate to reflect any confidential information of the Manufacturer and its other customers); provided that any such disclosure shall be for this limited purpose and Buyer shall hold such information in confidence, and may not share any such information with any third parties except as required by a Governmental Entity or by Governmental Rules.

(d) Subject to the foregoing record maintenance requirement and only with respect to any Supply Product that is supplied by the Manufacturer, the Manufacturer shall notify Buyer before destroying any records developed under this Supply Agreement and maintained in accordance with Section 2.4(b), it being understood that in respect of any Supply Product that is supplied by the Manufacturer pursuant to a retained ANDA, the Manufacturer shall only be required to notify Buyer before destroying any records to the extent the records relate to the Supply Products purchased by Buyer under this Supply Agreement. In such case, Buyer shall have the option of having the records shipped to Buyer in accordance with Buyer’s reasonable instructions and at Buyer’s sole cost and expense. Buyer shall also have the option, at any time not later than [****] after the termination date of this Supply Agreement, of having one copy of any records developed under this Supply Agreement shipped to Buyer in accordance with Buyer’s reasonable instructions and at Buyer’s sole cost and expense.

Section 2.5. Adverse Events.

Prior to the Closing Date the Parties shall each assign a representative to negotiate in good faith and agree on a process and procedure for sharing adverse event information which shall be documented in a pharmacovigilance agreement which the Parties shall use commercially reasonable efforts to agree upon and execute prior to the Closing Date. Pending adoption of such agreement, the Parties shall implement a transition plan for exchange of any and all information concerning adverse events related to use of the Supply Products regardless of source, and the Parties shall ensure compliance with legal requirements.

7

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Article III.

FORECASTS, ORDERS AND SHIPMENT

Section 3.1. Forecasts.

In order to assist in the planning of production runs for the Supply Products, the Buyer will, within [****] following the execution of this Supply Agreement, provide the Manufacturer with a non-binding written forecast of estimated quantities of Supply Product that the Buyer anticipates ordering from the Manufacturer during the next [****] period (the “ Forecast ”). This initial Forecast will be updated monthly [****] basis and such updated Forecast will be promptly delivered to the Manufacturer by the Buyer; provided that, in any updated Forecast, Buyer may not [****]. The Buyer will forecast [****]. Each Forecast will be made by the Buyer in good faith, taking into account reasonable projections of demand for the Supply Products including, without limitation, demand in line with prescription trends, and allowing for reasonable safety stock. The Manufacturer shall use its commercially reasonable efforts to ensure sufficient manufacturing capacity to meet the Forecast.

Section 3.2. Orders.

(a) The Buyer will place firm purchase orders (“ Firm Orders ”) for Supply Products in writing for delivery at least [****] after the Purchase Order Date. The Manufacturer shall accept or reject each Firm Order in writing within [****] after its receipt of each order, it being understood that the Manufacturer may reject a Firm Order [****]. Each Firm Order will specifically refer to this Supply Agreement [****]. Except with respect to the initial Firm Order as set forth on Schedule 3.2(d) hereto, each Firm Order shall cover the Buyer’s desired quantity of the Supply Products for the [****] period immediately following the applicable delivery date. The minimum size of any order placed by the Buyer with respect to a Supply Product will be a [****], except with the advance approval of the Manufacturer. The Supply Products set forth in Firm Orders will be delivered to such location as the Manufacturer designates in writing to the Buyer from time to time. The date an order will be deemed placed (the “ Purchase Order Date ”) will be the date that the Manufacturer actually receives the purchase order form. The Buyer will be fully responsible for any changes to a Firm Order. Firm Orders will be deemed accepted by the Manufacturer unless the Manufacturer rejects a Firm Order for reasons constituting a Force Majeure or for the failure of a Firm Order to comply with the provisions of this Supply Agreement and provides notification of such rejection to the Buyer within [****] Days of receipt of the Firm Order. In the event that a Firm Order is so rejected, the Manufacturer shall provide to Buyer the reasons for rejection in writing and the Manufacturer and the Buyer will cooperate in good faith to promptly resolve any supply issues raised by such order. The Manufacturer shall use reasonable best efforts to timely supply any Supply Products in accordance with the resolution of a rejected Firm Order.

(b) The Manufacturer will supply the Supply Products in accordance with each Firm Order placed pursuant to the terms of this Supply Agreement by the Buyer and accepted by the Manufacturer including the quantities and delivery dates requested in each Firm

8

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Order. Each Firm Order will set forth a delivery date, not less than [****] after the date of such order. In the event delivery of Supply Products pursuant to a Firm Order is delayed by more than [****], the Buyer will be entitled to revise its forecasts and reschedule orders under Section 3.1 and this Section 3.2 to address such delay in a reasonable manner without penalty of any kind whatsoever; provided, however, that any revision shall not be deemed a waiver by the Buyer of any claim for a breach of this Section 3.2(b) by the Manufacturer.

(c) Notwithstanding any other provisions to the contrary herein or in the Asset Purchase Agreement, the Manufacturer in its sole discretion may supply or cause its Affiliate to supply Buyer with the Supply Products listed on Schedule 6.1 from a facility approved as a Manufacturing site under the applicable ANDA or NDA retained by the Manufacturer or an Affiliate, and the Parties shall cooperate with each other to effectuate any changes to the labeling, packaging or ANDA or NDA that may be required due to such fulfillment from the alternate Manufacturing site.

(d) The initial Firm Order is attached as Schedule 3.2(d) hereto. The Manufacturer will deliver the Supply Products subject to the initial Firm Order no later than [****] following the Closing Date.

(e) [****]. Except as otherwise provided in Section 3.2(f), this Section 3.2(e) shall be the sole and exclusive remedy of the Buyer with respect to any such failure to timely deliver the initial Firm Order for the Supply Products by the Manufacturer under this Supply Agreement (including through purchases of Supply Products by Buyer under Section 3.2(f), if applicable).

(f) The Parties agree that all or a portion of Manufacturer’s existing and available inventory of certain Supply Products bearing the Manufacturer’s or an Affiliate’s NDC Number as set forth on Schedule 3.2(f) or as may otherwise be agreed by the Parties may be supplied by Manufacturer in order to fulfill Buyer’s initial Firm Order with respect thereto and to enable Buyer to sell such Supply Products to third parties. Each Party’s responsibilities with respect to Medicaid Reimbursements and Rebates, returns, rebates, adverse event reporting, audits, administrative fees, chargebacks, shelf stock adjustments and similar payments and reporting obligations in connection with the sale of such Supply Products bearing the Manufacturer’s or an Affiliate’s NDC Numbers are set forth in Appendix III of the Asset Purchase Agreement.

(g) The terms of this Supply Agreement shall prevail over any conflicting, inconsistent or additional terms set forth in any Firm Order.

Section 3.3.      Delivery.

(a) All Supply Products shipped under this Supply Agreement will be shipped [****] the Manufacturer’s facility or, if applicable, the designated facility of its contract manufacturer to such location designated by the Buyer in the applicable Firm Order. The [****] will pay all freight, insurance charges, taxes, import and export duties, inspection fees and other

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



charges applicable to the sale and transport of Supply Products purchased by the Buyer. Title and risk of loss and damages to Supply Products purchased by the Buyer will pass to the Buyer [****]. In the event of damage or loss to the Supply Products [****] will be responsible to file claims with the carrier. The Manufacturer shall notify Buyer of the following information concurrently with each shipment of Supply Product: (i) date of shipment, (ii) quantity and type of Supply Product shipped, and (iii) order number or other identifying information.

(b) Manufacturer shall perform quality assurance testing with respect to the Supply Products sold hereunder, including stability testing, so that the Supply Products conform with the Specifications. With each shipment of Supply Products to Buyer, Manufacturer shall provide Buyer with a Certificate of Analysis (“ COA ”) and a Certificate of Compliance (“ COC ”) confirming that the Supply Products in such shipment have been tested in accordance with the ANDAs and meet the Supply Products Specifications. The results of such testing shall accompany each COA. In addition, with each shipment of Supply Products to Buyer, Manufacturer shall provide to Buyer a COC confirming that the Supply Products in such shipment have been manufactured in accordance with all of the requirements of the Agreement and the applicable ANDA, in all material respects (without giving effect to any materiality qualifications set forth in any provision of this Supply Agreement). Any deviations and investigations related to such Supply Products shall be completed in compliance with applicable ANDA, cGMP Requirements and the Quality Agreement (as defined in Section 5.6 hereof).

(c) The Buyer represents and warrants that it will not ship Supply Product prior to the Closing Date.
Article IV.

REPRESENTATIONS AND WARRANTIES
Section 4.1.      Representations and Warranties of the Manufacturer.
The Manufacturer hereby represents and warrants to the Buyer as follows:

(a) Supply Product Compliance . All Supply Products delivered pursuant to this Supply Agreement by the Manufacturer (or any sub-contractor thereof) to the Buyer or its designee during the Term will at shipment be in compliance in all material respects with this Supply Agreement, the Specifications, the Quality Agreement and applicable Governmental Rules, including the cGMP Requirements, and the Manufacturing of such Supply Products will have been in accordance with the cGMP Requirements. At the time Manufacturer makes each shipment of Supply Product available for pick-up by Buyer (or Buyer’s carrier), the Supply Products shall: (i) not be adulterated or misbranded within the meaning of the FFDCA or within the meaning of any applicable state or municipal Law in which the definitions of adulteration and misbranding are substantially the same as those contained in the FFDCA, as such FFDCA and such Laws are constituted and in effect at the time of delivery; (ii) not be an article that may not be introduced into interstate commerce under the provisions of Sections 404 and 505 of the FFDCA; and (iii) have a shelf life that is not more than [****] into the product expiration,

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



provided , however , that with respect to the initial Firm Order, for Supply Products that have a normal shelf life [****], such Supply Products will have a minimum remaining shelf life of not less than [****], except with respect to the Supply Products set forth on Schedule 4.1(a) , which shall have a minimum shelf life as set forth therein.

(b) Authorization . This Supply Agreement has been duly executed and delivered by the Manufacturer and, assuming due execution and delivery by the Buyer, constitutes a valid and binding obligation, enforceable against the Manufacturer in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Supply Agreement have been duly authorized by all necessary action on the part of the Manufacturer and its respective officers and directors.

(c) No Encumbrance . Title to all Supply Products supplied to Buyer hereunder shall pass to Buyer as provided herein free and clear of all Encumbrances, other than Permitted Encumbrances.

(d) Absence of Conflicts . The execution, delivery and performance of this Supply Agreement by the Manufacturer does not conflict with or constitute a default under any agreement, instrument or understanding, oral or written to which it is a party or by which it may be bound, does not conflict with any provision of any of its organizational documents and does not conflict with or violate any Governmental Rule or court order or decree.

(e) Organization and Standing . The Manufacturer is a corporation, duly organized, validly existing and in good standing under the laws of the State of Israel.

(f) Power and Authority . The Manufacturer has the corporate power and authority to execute, deliver and perform this Supply Agreement and to consummate the transactions contemplated hereby.

(g) Compliance With Law . Manufacturer has and will maintain throughout the term of this Supply Agreement all permits, licenses, registrations and other forms of governmental authorization and approval as required by Law in order for Manufacturer to execute and deliver this Supply Agreement and to perform its obligations hereunder in accordance with all applicable Laws.
(h) No Debarment . Manufacturer is not debarred and has not and will not use in any capacity the services of any person debarred under subsection 306(a) or (b) of the Generic Drug Enforcement Act of 1992. If at any time this representation and warranty is no longer accurate, Manufacturer shall promptly notify Buyer of such fact
.
(i) No Enforcement Actions . There are no pending or, to the Knowledge of Manufacturer, threatened enforcement actions, recalls, withdrawals or notices of health or safety

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



risks to or from the FDA or other federal, state or foreign Governmental Entity which has jurisdiction over the Manufacturer’s operations which relate to the Supply Products.

Section 4.2.      Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to the Manufacturer as follows:

(a) Authorization . This Supply Agreement has been duly executed and delivered by the Buyer and, assuming due execution and delivery by the Manufacturer, constitutes a valid and binding obligation, enforceable against the Buyer in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Supply Agreement have been duly authorized by all necessary action on the part of the Buyer and its respective officers and directors.

(b) Absence of Conflicts . The execution, delivery and performance of this Supply Agreement by the Buyer does not conflict with or constitute a default under any agreement, instrument or understanding, oral or written to which it is a party or by which it may be bound, does not conflict with any provision of any organizational documents of the Buyer and does not conflict with or violate any Governmental Rule or court order or decree.

(c) Organization and Standing . The Buyer is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.

(d) Power and Authority . The Buyer has the corporate power and authority to execute, deliver and perform this Supply Agreement and to consummate the transactions contemplated hereby.

Article V.

QUALITY ASSURANCE
Section 5.1.      The Manufacturer’s Covenants.

The Manufacturer hereby covenants during the Term that it will (and will use commercially reasonable efforts to cause its contractors to):

(a)    manufacture, fill, package, test, handle, store, warehouse and ship the Supply Products in conformity with this Supply Agreement, Quality Agreement, Governmental Rules , and cGMP Requirements and the Specifications;

(b)     promptly (but in any event no later than [****] after becoming aware) inform Buyer of any inspections, communications, or material issues raised by the FDA in

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connection with the Manufacturing of the Supply Products, and, in each case, shall provide Buyer with copies of any correspondence (including emails) relating thereto;

(c)    obtain and maintain all permits reasonably necessary to Manufacture and supply all Supply Product subject to an FDA approved ANDA in accordance with the Specifications, applicable Governmental Rules and this Supply Agreement; and

(d)    if Manufacturer becomes aware of any Supply Products that have not been manufactured in accordance with the Specifications and that have been supplied, promptly take such corrective action as shall be reasonably necessary to correct such nonconformity and inform Buyer in writing.

Section 5.2.      The Buyer’s Covenants

The Buyer hereby covenants during the Term that it will:
(a) hold, store, handle, ship, deliver, distribute and/or sell the Supply Products (i) in accordance with applicable cGMP Requirements and Governmental Rules, including but not limited to any risk management programs required by the FDA; and (ii) in compliance with the Specifications;

(b) enter into all necessary compliance agreements as may be reasonably designated by the Manufacturer, including but not limited to agreements to cover quality assurance and adverse incident reporting; and

(c) except in respect of the requirements set forth in Section 3.3(b) and Section 5.1 hereof, upon delivery of the Supply Products to the Buyer, the Buyer will be solely responsible for compliance with all quality control testing and other testing requirements set forth in this Supply Agreement and all related Governmental Rules with respect to such Supply Products.

Section 5.3.      Rejection of Delivered Supply Products.

Within [****] of receipt by the Buyer at its applicable warehouse of any shipment of Supply Product and applicable COA and COC, the Buyer will inspect the Supply Product, COA and COC and advise the Manufacturer of any defect whereby the Supply Product does not conform to the Specifications. Any Supply Product not refused within [****] will be deemed accepted. If the Buyer wishes to refuse acceptance, the Buyer will, within such [****] period, provide written notice to the Manufacturer of its refusal to accept the defective Supply Product and the reason(s) therefor. In the event a hidden defect (i.e., one which could not have been reasonably identified during the initial [****] Buyer inspection period) is discovered at a later date whereby the Supplied Product does not conform to the Specifications, the Buyer shall inform the Manufacturer as soon as practicable after Buyer becomes aware of the alleged hidden defect. In the event that the Buyer refuses acceptance or rejects the Supply Product due to a hidden defect, the Manufacturer, upon confirmation of the reasons for refusal or rejection of the

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Supply Product, will replace within [****] days or as soon as reasonably practicable the defective Supply Product at the Manufacturer’s sole cost and expense or refund the Transfer Price, at the Buyer’s option. If the Manufacturer and the Buyer do not agree on the refusal or rejection of Supply Products, then either Party may refer the matter for final analysis to [****]. [****]. Except as set out in this Section 5.3, the Manufacturer shall have no liability to Buyer for any defect (other than hidden defects) for which it has not received notice from the Buyer within the [****] Buyer inspection period or for any hidden defect for which it was not informed as soon as practicable after Buyer became aware of such hidden defect.

Section 5.4.      Non-Conforming Supply Products.

Notwithstanding any other provisions of this Supply Agreement, the Buyer agrees to return to the Manufacturer (or, at Manufacturer’s direction, to its contractors) any Supply Products that do not conform with the Specifications at the time of shipment to the Buyer, or if the Buyer and the Manufacturer mutually agree, to dispose of such Supply Products as the Manufacturer may direct. The Manufacturer shall be responsible for the reasonable and documented costs associated with the return and proper disposal of all such Supply Products not in conformance with the Specifications at the time of shipment and shall promptly (and, in any event, within [****] or as soon as reasonably practicable) replace (at Manufacturer’s cost) or credit, at the option of the Buyer, such non-conforming Supply Products.

Section 5.5.      Recall.

Manufacturer shall maintain traceability records in accordance with the applicable Governmental Rules, including cGMP Requirements, and in accordance with any written instructions or guidelines provided to Manufacturer by the Buyer, necessary to permit a recall, field correction or other notification to the field, of the Supply Products. Buyer, in consultation with Manufacturer, shall have the exclusive right to institute a recall and shall be responsible for managing the recall and communications with customers and Governmental Entities; provided, however, notwithstanding the preceding, that for any Supply Product supplied pursuant to an ANDA owned by Manufacturer, Manufacturer, in consultation with Buyer, shall have the exclusive right to institute a recall and shall be responsible for managing the recall and communications with customers and Governmental Entities. The Parties shall cooperate with each other in connection with any such efforts. In the event that any Supply Product is quarantined or recalled by Buyer, or is subject to stop-sale action, whether voluntary or by governmental action, it is agreed and understood that [****]. Said determination may be made by the Governmental Entity involved, or by mutual agreement of the Parties following examination and review of all records pertinent to the manufacture of the Supply Products subject to such recall.

Section 5.6.      Quality Procedures.

Manufacturer and Buyer shall comply with the terms of the quality requirements set forth in a quality agreement to be negotiated in good faith by the Parties and entered into by the Parties as soon as practicable after the date hereof, but on or prior to the Closing Date (the

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Quality Agreement ”) with respect to the manufacture of the Supply Products. To the extent that any inconsistencies or conflicts exist between the Quality Agreement and this Supply Agreement with regard to quality requirements and compliance with Governmental Rules, the provisions in the Quality Agreement shall prevail.

Section 5.7.      Regulatory Communications.

Buyer shall be responsible for communicating with the FDA regarding the Supply Products and the Manufacturing performed by Manufacturer hereunder and Manufacturer shall not initiate contact with the FDA or such other regulatory authority regarding the Supply Products or the Manufacturing without Buyer’s prior written consent, except when required by the terms of this Supply Agreement or by applicable Governmental Rules; provided , however , notwithstanding the preceding, that for any Supply Products supplied pursuant to an ANDA owned by Manufacturer, Manufacturer shall be responsible for communicating with the FDA regarding such Supply Products and the Manufacturing performed by Manufacturer hereunder and Buyer shall not initiate contact with the FDA or such other regulatory authority regarding the Supply Products or the Manufacturing without Manufacturer’s prior written consent, except when required by the terms of this Supply Agreement or by applicable Governmental Rules. Each Party shall provide reasonable assistance to the other Party upon such Party’s reasonable request, and at the requesting party’s sole cost and expense, with respect to such regulatory communications.

Article VI.

PRICE AND PAYMENTS
Section 6.1.      Prices.

The prices payable by the Buyer for each of the Supply Products will be the prices set forth on Schedule 6.1 and will be adjusted pursuant to Section 6.2 (the “ Initial Price ” and as may be adjusted pursuant to Section 6.2, the “ Transfer Price ”). The prices for the Supply Products set forth on Schedule 6.1 are [****] determined on a [****] in U.S. dollars over the [****] as the sum of the [****] as well as [****] as determined in accordance with U.S. GAAP [****] provided that the Transfer Prices for an applicable Supply Product [****] provided further that [****].

Section 6.2.      Adjustment.

(a) On each anniversary of the date Manufacturer fulfills an initial Firm Order with respect to any Supply Product, Manufacturer shall have the right to increase the Transfer Price of such Supply Product by [****].

(b) On the fourth and fifth anniversaries of the date Manufacturer fulfills an initial Firm Order with respect to any Supply Product, if the Buyer has not completed the transfer of the Product Technology (as defined in the Asset Purchase Agreement) pursuant to Section

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



7.3(a) of the Asset Purchase Agreement, then Manufacturer shall have the right to a payment equal to [****] of total annual costs of goods for the applicable Supply Product for the immediately preceding contract year and Buyer shall promptly (and in any event within [****] of such anniversary) deliver or cause to be delivered to Manufacturer payment of such amount by wire transfer in immediately available funds, to the account or accounts designated in writing by Manufacturer to Buyer.

Section 6.3.      Invoices.

The Manufacturer will send all invoices in respect of any Supply Products to a single address specified in writing by the Buyer to the Manufacturer following the date that such Supply Products subject to any Firm Order shall have been made available to the Buyer under Section 3.3(a). Payments for Supply Product sold hereunder will be made by the Buyer to the Manufacturer within [****] after the date of the invoice by check or electronic funds transmission in United States dollars as specified in any invoice, without any offset or deduction of any nature whatsoever. Notwithstanding the foregoing, the Parties acknowledge that the Manufacturer shall not invoice the Buyer, and the Buyer shall have no obligation to make payment hereunder, prior to the Closing Date. All payments will be made to such account as the Manufacturer will have specified in writing to the Buyer with written confirmation of payment sent by facsimile to such address as the Manufacturer will have specified in writing to the Buyer. If the Buyer fails to pay any undisputed invoiced amount when due, a service charge will be imposed by the Manufacturer equal to [****] that such undisputed amount is overdue. For the avoidance of doubt, Buyer will not have any obligation to make any payment in respect of the initial Firm Order if the Asset Purchase Agreement is terminated prior to the Closing Date.

Section 6.4.      Taxes, etc.

The Buyer will bear solely the cost of any taxes, levies, duties or fees of any kind, nature or description whatsoever applicable to the sale and transportation of Supply Product sold by the Manufacturer to the Buyer (“ Buyer Taxes ”), and the Buyer will forthwith pay to the Manufacturer all such sums upon demand. Manufacturer and Buyer shall cooperate with each other and use their commercially reasonable efforts to obtain any certificate or other document from any person as may be necessary to mitigate, reduce or eliminate any such Buyer Taxes.

Section 6.5.      Separate Sale.

Each shipment of Supply Product to the Buyer will constitute a separate sale, obligating the Buyer to pay therefor, whether said shipment is in whole or only partial fulfillment of any order or confirmation issued in connection therewith.

Section 6.6.      Deductions.

Except as otherwise required by applicable Law, the Buyer agrees not to make any deductions of any kind from any payments becoming due to the Manufacturer unless the

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Buyer will have received prior written authorization from the Manufacturer authorizing such deduction.

Article VII.

TERM AND TERMINATION
Section 7.1.      Term.

The provisions of this Supply Agreement will commence on the date hereof and will expire on the second (2 nd ) anniversary of the Closing Date unless earlier terminated in accordance with this Article VII (the “ Initial Term ”). On a Supply Product-by-Supply Product basis, prior to the date on which (i) Buyer has successfully completed the transfer of the Product Technology pursuant to Section 7.3(a) of the Asset Purchase Agreement and (ii) Buyer has begun independent manufacture or supply and sales of the applicable Supply Product (“ Successful Product Technology Transfer ”), this Supply Agreement may be extended three (3) times at the request of the Buyer (the Buyer having provided at least [****] written notice prior to the expiration of the Initial Term to the Manufacturer) for an additional one (1) year term, subject to approval of the FTC Staff or the FTC Interim Monitor, and subject to earlier termination in accordance with this Article VII (the “ Extended Term ” and together with the Initial Term, the “ Term ”).

Section 7.2.      Termination.

Either the Manufacturer, on the one hand, or the Buyer, on the other hand, as applicable, will have the right to terminate this Supply Agreement with immediate effect (except as otherwise stated below) upon written notice to the other upon the occurrence of the following:

(a) the Manufacturer, on the one hand, or the Buyer, on the other hand, files a petition in bankruptcy, or enters into an agreement with its creditors, or applies for or consents to the appointment of a receiver or trustee, or makes an assignment for the benefit of creditors, or becomes subject to involuntary proceedings under any bankruptcy or insolvency Law; or

(b) the Manufacturer, on the one hand, or the Buyer, on the other hand, fails to cure any non-compliance with any of the terms and conditions hereof within the time period specified in any prior written notice (which will be at least [****]) delivered to the non-compliant Party by another Party; provided ; however , that the Manufacturer shall be permitted to terminate under this Section 7.2(b) only for the Buyer’s failure to pay amounts due to the Manufacturer pursuant to this Supply Agreement and not disputed in good faith by Buyer (it being understood that any amounts due for Supply Product rejected pursuant to Section 5.3 shall be deemed to be disputed in good faith); or
(c) if the Buyer believes it has sufficient alternative supply of any Supply Product to meet its needs, then the Buyer may terminate this Supply Agreement with respect to such Supply Product upon [****] prior written notice to the Manufacturer; or

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(d) except as specifically provided in Section 7.2(b), the Manufacturer shall not have any right to terminate its supply obligations under this Supply Agreement as a result of any breach by the Buyer; provided , however , that the Manufacturer shall be entitled to seek all other remedies available at Law or in equity; or

(e) if the Parties mutually agree in writing to terminate this Supply Agreement, following the provision of prior notice to the FTC Staff or the FTC Interim Monitor; or

(f) with respect to each Supply Product, upon the Successful Product Technology Transfer such that the Buyer has sufficient alternative supply of such Supply Product to meet its needs, then either Party may terminate this Supply Agreement with respect to such Supply Product upon [****] prior written notice to the other Party; or
(g) termination of the Asset Purchase Agreement pursuant to Section 11.1(a) thereof.

Section 7.3.      Effects of Termination.

If this Supply Agreement is terminated pursuant to Section 7.2:

(a) The Buyer acknowledges and agrees that the Manufacturer will be entitled to cancel any Firm Order accepted prior to the effective date of termination with respect to any such Supply Product subject to such termination, and will not be obligated to supply any such Supply Products ordered by the Buyer pursuant to such Firm Order, with respect to such Supply Products to be delivered after the effective date of the termination; provided that with respect to a termination by Buyer pursuant to Section 7.2(b) or Section 7.2(c), Manufacturer will only be entitled to cancel any Firm Order accepted as of a date that is within [****] prior to the effective date of termination. In addition, the Buyer shall purchase from the Manufacturer all quantities of components, materials, APIs and work-in-progress in the Manufacturer’s, its Affiliates’ and third party manufacturers’ possession that were reasonably purchased or produced in connection with such parties’ obligations to manufacture Supply Products and are not reasonably allocable to or usable for other activities being carried out by the Manufacturer or its Affiliates [****], which amount shall be payable no later than [****] after receipt thereof by the Buyer. In the event the Supply Agreement is terminated pursuant to Section 7.2(c), the provisions of this Section 7.3(a) will apply only with respect to the Supply Products for which the Supply Agreement has been terminated.

(b) If the termination is by Manufacturer due to a default by Buyer in the payment of any amount owed hereunder to the Manufacturer when due, then all of the liabilities and obligations of the Buyer to the Manufacturer, whether then due or not, will become immediately due and payable, and Manufacturer will be entitled to cancel any Firm Order then outstanding and will not be obligated to supply any Supply Products ordered by the Buyer pursuant to such Firm Order.

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(c) Subject to Section (a) and (b) hereof, termination or expiration of this Supply Agreement for any reason will not relieve the Parties of any obligation accruing prior to such termination or expiration (including in respect of any Firm Orders); provided , however , the Buyer will not have any obligation to make any payment in respect of the initial Firm Order if this Supply Agreement shall be terminated prior to the Closing Date. The rights and obligations of the Parties under Sections 5.5, 7.3, Article IX, Article X and Article XII of this Supply Agreement will survive the expiration or termination of this Supply Agreement.

(d) It is understood and agreed that the Buyer will be responsible for all Manufacturing of the Supply Products after the earlier of the termination (in accordance with the terms hereof) or expiration of this Supply Agreement. In addition, it is understood and agreed that the Buyer will be responsible [****], except as otherwise required pursuant to the terms of the Asset Purchase Agreement.
Article VIII.

FORCE MAJEURE
Section 8.1.      Force Majeure.

Neither Party will be deemed to have defaulted under or breached this Supply Agreement for failure or delay in fulfilling or performing any term or provision of this Supply Agreement (other than the payment of money) when such failure or delay will be caused (directly or indirectly) by a circumstance beyond the reasonable control of the affected Party, including, without limitation, fire; flood; accident; explosion; terrorism, sabotage; strike, or any labor disturbance (regardless of the reasonableness of the demands of labor); civil commotions; riots; invasions; wars (present or future); acts, restraints, requisitions, regulations, or directions of any Governmental Entity, except where such acts, restraints, requisitions, regulations or directions are the result of a Party’s negligence or willful actions; voluntary or mandatory compliance by the Manufacturer with any request for material represented to be for purposes of (directly or indirectly) producing articles for national defense or national defense facilities; shortage of labor, fuel, power, or raw materials; inability to obtain supplies; failures of normal sources of supplies; inability to obtain or delays of transportation facilities; any act of God; any act of the other Party or any cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of such Party (each a “ Force Majeure ”). Any Party asserting its inability to perform any obligation hereunder for any such contingency shall promptly notify the other Party of the existence of any such contingency and shall use commercially reasonable efforts to mitigate such contingency and re-commence its performance of such obligation as soon as commercially practicable. Subject to this Section 8.1, if the Manufacturer is unable to supply the Buyer with its requirements of Supply Products by reason of Force Majeure, Force Majeure shall excuse the Manufacturer’s performance until the Force Majeure has ceased and for a reasonable period of time thereafter, to allow the Manufacturer to restore itself to the position it was in with respect to the Supply Products immediately prior to the Force Majeure. Within [****] of notification by the Manufacturer that it is able to resume the necessary supply of the Supply Products to the Buyer, the Buyer shall resume obtaining Supply Products from the Manufacturer

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pursuant to the terms of this Supply Agreement; however, in respect of any Firm Orders for the Supply Products the delivery of which was during such Force Majeure period, parties shall discuss in good faith the requirements of the Buyer and delivery of such Supply Products. Neither Party shall suffer penalty or incur any liability for its inability to perform hereunder by reason of Force Majeure. If a Party fails to perform any of its obligations under this Supply Agreement by reason of Force Majeure and such non-performance continues for a period of [****] from the first occurrence of the event of Force Majeure, the other party may terminate this Supply Agreement with respect to any Supply Product that is directly related to, or the subject of, such Force Majeure event by providing written notice to that effect to the non-performing party. In the event of such termination, both parties' respective rights and obligations under this Supply Agreement shall terminate with respect to such Supply Product except for any amounts previously due and owing by one party to the other and except for any other obligations which this Supply Agreement expressly provides shall survive termination.

Article IX.

CONFIDENTIALITY
Section 9.1.      Non-disclosure and Non-use Obligation.

Each Party or its Affiliates or contractors may, from time to time, prior to or after the date hereof, disclose to the other Party information of a technical or non-technical nature that is not generally known to the trade or public. Each Party agrees that it will not use for any purpose other than as necessary to perform its obligations under this Supply Agreement, and will not disclose to anyone in any manner whatsoever, any such information including, without limitation, information relating in any way to the products, processes, and services of each Party or its Affiliates or contractors, which becomes known to the other Party on or prior to the date of the termination or expiration of this Supply Agreement. The obligations of this Section 9.1 will not apply to information (i) that is known to a Party as shown by written records prior to its disclosure by the Manufacturer or its contractors; (ii) that becomes public information or is generally available to the public other than by an unauthorized act or omission of the other Party; or (iii) that is received by a Party from third parties who are in rightful possession of such information and who are lawfully entitled to disclose such information and did not receive such information from the other Party. From and after the Closing Date, the Transferred Assets and all confidential information relating solely and exclusively to the Transferred Assets or the manufacture thereof shall be considered confidential information of Buyer under this Section 9.1 and the obligations of this Section 9.1 in respect thereof will apply to the Manufacturer and will not apply to Buyer; provided, however, to the extent such confidential information is also used by Manufacturer in the retained business thereof or in fulfilling its obligations under this Supply Agreement, such confidential information shall constitute the confidential information of both Parties. Upon the termination or expiration of this Supply Agreement, each Party will return or destroy (with written confirmation thereof) to the other Party all documents that include confidential information of each Party or its contractors (other than, in the case of the Buyer, upon termination of this Supply

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Agreement after the Closing Date or expiration of this Supply Agreement, the Transferred Assets), including all copies of such documents or extracts therefrom, if any, and will make no further use of such information.

Article X.

INDEMNIFICATION
Section 10.1.      By the Manufacturer.

From and after the Closing Date, the Manufacturer will indemnify, defend and hold harmless, and pay and reimburse, the Buyer and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders from and against any and all Losses resulting from any claim by a third party to the extent and only to the extent attributable to the Manufacturer’s gross negligence, willful misconduct or breach of any of its representations and warranties, covenants, agreements or obligations contained in this Supply Agreement.

Section 10.2.      By the Buyer.

From and after the Closing Date, the Buyer will indemnify, defend and hold harmless, and pay and reimburse, the Manufacturer and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders from and against any and all Losses resulting from any claim by a third party (a) to the extent and only to the extent attributable to the Buyer’s gross negligence, willful misconduct or breach of any of its representations and warranties, covenants, agreements or obligations contained in this Supply Agreement; or (b) regarding any Supply Product sold by Buyer or its Affiliates from and after the Closing Date, including but not limited to (i) any claim for patent infringement, personal injury, death or property damage or (ii) the use of the Supply Products by any person; provided , however , that the Buyer shall not be liable for any Losses to the extent arising from the Manufacturer’s negligence or breach of its representations and warranties, covenants, agreements or obligations contained herein.

Section 10.3.      Procedures.

In the event of any claims for indemnification made by one Party against the other Party under this Section 10, the procedure to be used for the administration and resolution of such claims will be as set forth in Section 12.5 of the Asset Purchase Agreement.

Section 10.4.      Insurance.

At all times from the Closing Date through that date which is [****] after the termination or expiration of this Supply Agreement, each of the Buyer and the Manufacturer will maintain product liability insurance (or self insurance), which is reasonable and customary in the USA pharmaceutical industry for companies of comparable size, provided that in no event shall the product liability insurance amounts be [****] per year. Each of the Buyer and the Manufacturer shall provide written proof of such insurance to the other Party upon request.


21

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 10.5.      Limitations.

(a) In no event shall either Party be liable by reason of any breach of any representation, warranty, condition or other term of this Supply Agreement or any duty of common law, for any consequential, special, indirect, or incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise), and each Party agrees that it shall not make any such claim; provided, however, that the foregoing does not limit any of the obligations or liability of (i) either Party or its Affiliates under Sections 10.1 and 10.2 with respect to (1) claims for indemnity of unrelated third parties, (2) liability arising from fraud of a Party or its Affiliates and (3) with respect to Manufacturer’s breach of its obligations pursuant to Section 3.2 and Section 5.3, liability arising from fraud, intentional breach or willful misconduct of a Party or its Affiliates or (ii) Manufacturer for a Supply Failure due to the gross negligence of Manufacturer.

(b) Notwithstanding any other provision of this Supply Agreement, in the event that the Buyer asserts or claims that the Manufacturer has breached any of its obligations hereunder or that the Manufacturer is liable pursuant to Section 10.1, the Manufacturer’s maximum liability under or in connection with (i) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted prior to [****] shall be limited to [****] and (ii) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted on or following [****] shall be limited to [****].

Article XI.

INTELLECTUAL PROPERTY RIGHTS
Section 11.1.      License.

The Buyer hereby grants to the Manufacturer for the Term of this Supply Agreement, a royalty-free, non-exclusive, non-transferable, right and license under the Transferred Assets, as applicable in the Territory to manufacture and supply the Supply Products for the Buyer. This license is sublicenseable by the Manufacturer to contractors which the Manufacturer may cause to manufacture and supply the Supply Products.

To the extent that any of the Supply Products are marketed under a trademark or housemark of the Buyer (“ Buyer Trademark ”), Buyer hereby grants to the Manufacturer a revocable, non-assignable and non-exclusive license to apply and affix the Buyer Trademark on or in relation to the Supply Products manufactured for the Buyer hereunder; provided, however that nothing herein contained shall give or be deemed to give or shall be intended to give the Manufacturer any right, title, interest or claim in or to the Buyer Trademark.

Article XII.

MISCELLANEOUS
Section 12.1.      Assignment.


22

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Neither Party may assign its rights or obligations under this Supply Agreement without the prior written consent of the other Party and the FTC Staff or the FTC Interim

23

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Monitor; provided , however , that after the Closing Date either Party may assign its rights and obligations under this Supply Agreement, without the prior written consent of the other Party, to an Affiliate or to a successor of the assigning Party by reason of merger, sale of all or substantially all of its assets or the portion of its business which relates to a Supply Product or any number of the Supply Products, or any similar transaction. Any permitted assignee or successor-in-interest will assume all obligations of its assignor under this Supply Agreement. No assignment will relieve either Party of its responsibility for the performance of any obligation. This Supply Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Notwithstanding anything to the contrary contained herein, for the avoidance of doubt, Manufacturer shall be permitted to delegate and assign any portion of its obligations hereunder to any of its Affiliates without the prior written consent of Buyer; provided that such delegation and assignment will not relieve Manufacturer of its responsibility for the performance of any such obligation.

Section 12.2.      Severability.

If any provision of this Supply Agreement is held to be illegal, invalid or unenforceable by any Law or public policy, the remaining provisions of this Supply Agreement will nevertheless remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom as long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties will negotiate reasonably and in good faith to modify this Supply Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible, subject to the approval of the FTC Staff or the FTC Interim Monitor.

Section 12.3.      Notices.

All notices and other communications required or permitted to be given or made pursuant to this Supply Agreement shall be in writing signed by the sender and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (c) on the Business Day after being sent by Federal Express or another recognized overnight mail service which utilizes a written form of receipt for next day or next Business Day delivery or (d) two (2) Business Days after mailing, if mailed by United States postage-prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable Party at the address set forth below; provided that a Party may change its address for receiving notice by the proper giving of notice hereunder:

(a) if to the Buyer, to:
Impax Laboratories, Inc.
31047 Genstar Road


24

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Hayward, CA 94544
Attn:    General Counsel
Facsimile No.: (510) 240-6096

With a copy (which shall not constitute notice) to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attn:    Francis J. Aquila
Matthew G. Hurd
Facsimile No.: (212) 291-9004 / (212) 291-9076

(b) if to the Manufacturer, to:

Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190
Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and

Teva Pharmaceutical USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A
Attention: General Counsel
Fax: (215) 293-6499
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Daniel E. Wolf
Facsimile: (212) 446-6460
and
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Attention: Mark Kovner
Facsimile: (202) 879-5200

25

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




It is understood and agreed that this Section 12.3 is not intended to govern the ordinary course business communications necessary between the Parties in performing their duties, in due course, under the terms of this Supply Agreement, including the placement of orders and the delivery of forecasts.

Section 12.4.      Applicable Law.

This Supply Agreement and any and all matters arising directly or indirectly herefrom shall be governed by and construed and enforced in accordance with the laws of the State of New York, U.S.A. applicable to agreements made and to be performed entirely in such state.

Section 12.5.      Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL.

(a) The Buyer and the Manufacturer agree to irrevocably submit to the exclusive jurisdiction of (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A., for the purposes of any suit, action or other proceeding arising out of this Supply Agreement or any transaction contemplated hereby. Each Party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York, U.S.A. or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each Party further agrees that service of any process, summons, notice or document by U.S. registered mail or recognized international courier service to such Party’s respective address set forth in Section 12.3 of this Supply Agreement shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Supply Agreement. Each Party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Supply Agreement or the transactions contemplated hereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A.

(b) THE BUYER AND THE MANUFACTURER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS SUPPLY AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS SUPPLY AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN

26

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS SUPPLY AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS SUPPLY AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS SUPPLY AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 12.6.      Entire Agreement.

This Supply Agreement and the attached Schedules, which are incorporated herein, along with the Asset Purchase Agreement and the Schedules and Exhibits thereto, constitute the entire agreement between the Parties with respect to the subject matter hereof and all prior agreements with respect hereto are superseded. Each Party confirms that it is not relying on any representations, warranties, covenants or understandings of any kind, nature or description whatsoever of the other Party, except such as are as specifically set forth herein or in the Asset Purchase Agreement. No amendment or modifications hereof will be binding upon the Parties unless set forth in a writing specified to be an explicit amendment to this Supply Agreement duly executed by authorized representatives of each of the Parties, and subject to the approval of the FTC Staff or the FTC Interim Monitor. The Parties recognize that, during the Term of this Supply Agreement, a purchase order, acknowledgement form or similar routine document (collectively “ Forms ”) may be used to implement or administer provisions of this Supply Agreement. Therefore, the Parties agree that the terms of this Supply Agreement, as it may be amended, will prevail in the event of any conflict between this Supply Agreement and the printed provision of such Forms, or typed provisions of Forms that add to, vary, modify or are in conflict with the provisions of this Supply Agreement with respect to the Supply Products sold during the Term of this Supply Agreement.

Section 12.7.      Headings.

The headings used in this Supply Agreement are intended for convenience only and will not be considered part of the written understanding among the Parties and will not affect the construction of this Supply Agreement.

Section 12.8.      Independent Contractors.

The relationship between the Manufacturer, on the one hand, and the Buyer, on the other hand, is solely that of buyer and seller. It is expressly agreed that the Manufacturer, on the one hand, and the Buyer, on the other hand, will be independent contractors and that neither the relationship among the Parties nor this Supply Agreement will be construed as creating a partnership, joint venture or agency. Neither the Manufacturer, on the one hand, nor the Buyer, on the other hand, will have the authority to make any statements, representations or commitments of any kind, or to take any action or to incur any liability or obligation which will be binding on the other, without the prior consent of the other Party to do so. All persons

27

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



employed by a Party will be employees of such Party and not of the other Party and all costs and obligations incurred by reason of any such employment will be for the account and expense of such Party.

Section 12.9.      Intentionally Omitted

Section 12.10.      Waiver.

The waiver by either Party of any right hereunder or the failure to perform or of a breach by the other Party will not be deemed a waiver of any other right hereunder or of any other or subsequent breach or failure by said other Party whether of a similar nature or otherwise.

Section 12.11.      Counterparts.

This Supply Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.

Section 12.12.      No Benefit to Third Parties.
The representations, warranties, covenants and agreements set forth in this Supply Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any person or entity any legal or equitable rights, benefits or remedies.

[signature page follows]

28

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



IN WITNESS WHEREOF, the parties hereto have caused this Supply Agreement to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.

TEVA PHARMACEUTICALS INDUSTRIES LTD.
By:
/s/ Dror Bashan
Name:
 Dror Bashan
Title:
SVP, Head of M&A, Global BD

By:
/s/ Eyal Desheh
Name:
 Eyal Desheh
Title:
Executive Vice President, Chief Financial
 
Officer
 
IMPAX LABORATORIES, INC.
By:
/s/ G. Frederick Wilkinson
Name:
G. Frederick Wilkinson
Title:
President, Chief Executive Officer


[Supply Agreement]




Schedule 1.1 – Specifications
[****]
[*****]


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.

[*****] = Ninety-four pages of confidential information, marked by brackets, have been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Schedule 3.2(d) - Initial Firm Order
Initial Order Quantity
Product Description
PO Quantity
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Schedule 3.2(f) - Certain Supply Products
Product Description
Seller Label
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]




[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Schedule 4.1(a) - Minimum Shelf Life
[****]
[****]
[****]
[****]





[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Schedule 6.1 - Transfer Prices and Batch Quantities
SKU
Brand Name
CPU ($)
Supply Site of Initial Order
Batch Size
Supply Site of Remaining Tech-transfer Period
Batch Size
Status
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.





SKU
Brand Name
CPU ($)
Supply Site of Initial Order
Batch Size
Supply Site of Remaining Tech-transfer Period
Batch Size
Status
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]










______________________

[****]

[****]

     [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



SKU
Brand Name
CPU ($)
Supply Site of Initial Order
Batch Size
Supply Site of Remaining Tech-transfer Period
Batch Size
Status
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
*Estimate to updated upon launch






     [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.


EXECUTION VERSION

AMENDMENT NO. 1
TO THE
SUPPLY AGREEMENT
THIS AMENDMENT NO. 1 TO THE SUPPLY AGREEMENT (this “ Amendment ”) is dated as of June 30, 2016, by and between Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”) and Teva Pharmaceutical Industries Ltd., an Israeli corporation, acting directly or through its Affiliates (“ Manufacturer ”).
WITNESSETH:
WHEREAS, Buyer and the Manufacturer executed that certain Supply Agreement, dated June 20, 2016 (as amended, restated, waived or otherwise modified, the “ Supply Agreement ”); and
WHEREAS, the Parties have agreed to amend certain terms of the Supply Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. Definitions . Any capitalized term used in this Amendment shall have the meaning designated for the capitalized term in the Supply Agreement unless otherwise defined in this Amendment. The term “Supply Agreement” used in the Supply Agreement shall hereafter refer to the Supply Agreement, as amended by this Amendment.
2.     Amendment of the Supply Agreement . The Supply Agreement is hereby amended as follows (with deleted text shown as stricken and new text shown as double underlined):
(a)    The following terms are hereby added to Section 1.1 of the Supply Agreement:
““ Cure Period ” means [****] following Manufacturer’s receipt of notice from Buyer of a Supply Failure.”
““ Customer ” means any third party who purchases the Supply Product from the Buyer pursuant to a written agreement between the Buyer and such third party.”
““ Customer Penalties ” means the aggregate penalties the Buyer incurs from its Customers, directly related to actual worth of the quantities of Supply Products subject to the applicable Supply Failure (which quantities shall not exceed [****] supply of the applicable Supply Products) as evidenced by written records, as a result of the Manufacturer’s Supply Failure, which amount generally represents [****].”




[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Wholesale Acquisition Cost ” means, with respect to a Supply Product, [****].”
(b)      Section 7.2(a) of the Supply Agreement is hereby amended in its entirety to read as follows:
“(a) [reserved]”
(c)      Section 7.2(b) of the Supply Agreement is hereby amended in its entirety to read as follows:
“(b) the Manufacturer, on the one hand, or the Buyer, on the other hand, fails to cure any non-compliance with any of the terms and conditions hereof within the time period specified in any prior written notice (which will be at least [****]) delivered to the non-compliant Party by another Party; provided ; however , that the Manufacturer shall be permitted to terminate under this Section 7.2(b) upon [****] prior written notice to the FTC only for the Buyer’s failure to pay amounts due to the Manufacturer pursuant to this Supply Agreement and not disputed in good faith by Buyer (it being understood that any amounts due for Supply Product rejected pursuant to Section 5.3 shall be deemed to be disputed in good faith) unless the FTC Staff objects to such termination in writing to the Manufacturer within [****] of the receipt of such notice to the FTC, in which case Manufacturer shall not be permitted to terminate and shall continue to supply under the terms and conditions hereof, but Manufacturer may require the Buyer to place any disputed amounts due into an escrow account until such time as an agreement over these amounts between the Manufacturer and the Buyer is reached or adjudicated ; or”
(d)      Section 10.5 of the Supply Agreement is hereby amended and restated in its entirety to read as follows:
“(a)    In no event shall either Party be liable by reason of any breach of any representation, warranty, condition or other term of this Supply Agreement or any duty of common law, for any consequential, special, indirect, or incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise), and each Party agrees that it shall not make any such claim; provided, however, that the foregoing does not limit any of the obligations or liability of (i) either Party or its Affiliates under Sections 10.1 and 10.2 with respect to (1) claims for indemnity of unrelated third parties, (2) liability arising from fraud of a Party or its Affiliates and (3) with respect to Manufacturer’s breach of its obligations pursuant to Section 3.2 and Section 5.3, liability arising from fraud, intentional breach or willful misconduct of a Party or its Affiliates or (ii) Manufacturer for a Supply Failure due to the gross negligence of such Manufacturer ; provided however, solely with respect to clause (ii) that Manufacturer shall only be subject to liability for consequential, special, indirect or incidental or punitive loss or damage where (A) the Supply Failure is the result of Manufacturer’s fraud, willful misconduct, or gross negligence; or (B) the Supply Failure is the result of the Manufacturer’s negligence


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



and Manufacturer has not used its commercially reasonable best efforts to cure the Supply Failure during the Cure Period; provided further that in no event shall Manufacturer be liable with respect to any customer penalties due to any such Supply Failure under (A) or (B), above, other than the Customer Penalties .
(b)    Notwithstanding any other provision of this Supply Agreement, in the event that the Buyer asserts or claims that the Manufacturer has breached any of its obligations hereunder or that the Manufacturer is liable pursuant to Section 10.1, the Manufacturer’s maximum liability under or in connection with (i)(A) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted prior to [****] shall be limited to [****] and (ii) (B) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted on or following [****] shall be limited to [****]; and (ii) any reimbursement of Customer Penalties in accordance with the terms herein shall not exceed [****] for all Supply Products supplied by the Manufacturer under this Supply Agreement and the Other Supply Agreements .”
3.     Miscellaneous .
(a)      Effectiveness of Amendment . This Amendment shall become effective upon the date hereof. In the event of any inconsistency or conflict between the Supply Agreement and this Amendment, the terms, conditions and provisions of this Amendment shall govern and control.
(b)      General Provisions . Article XII of the Supply Agreement shall apply to this Amendment, mutatis mutandis .
* * * * * *



[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties hereto effective as of the date first above written.

TEVA PHARMACEUTICAL INDUSTRIES LTD.
By: /s/ Dror Bashan    
Name: Dror Bashan    
Title: SVP, Head of M&A, Global BD

By: /s/ Eyal Desheh    
Name: Eyal Desheh    
Title: Executive Vice President, Chief Financial Officer

IMPAX LABORATORIES, INC.
By: /s/ G. Frederick Wilkinson    
Name: G. Frederick Wilkinson    
Title: President, Chief Executive Officer





[Signature Page to Impax-Teva Supply Agreement Amendment]

EXECUTION VERSION





SUPPLY AGREEMENT
AMONG
ACTAVIS ELIZABETH LLC
ACTAVIS GROUP PTC EHF
ACTAVIS HOLDCO US, INC.
ACTAVIS LLC
ACTAVIS MID ATLANTIC LLC
ACTAVIS PHARMA, INC.
ACTAVIS SOUTH ATLANTIC LLC
ANDRX LLC
BREATH LTD.
THE RUGBY GROUP, INC.
WATSON LABORATORIES, INC.
AND
IMPAX LABORATORIES, INC.
DATED AS OF
JUNE 20, 2016








TABLE OF CONTENTS
 
 
Page
Article I. DEFINITIONS
3
 
 
Section 1.1. Definitions.
3
Section 1.2. Incorporation by Reference and Supremacy of FTC Order
5
 
 
Article II.
 
 
 
MANUFACTURE AND SALE OF SUPPLY PRODUCTS
5
 
 
Section 2.1. Engagement.
5
Section 2.2. Sale and Distribution.
6
Section 2.3. Packaging and Labeling.
6
Section 2.4. Facility Maintenance; Inspection; Reports.
6
Section 2.5. Adverse Events.
7
 
 
Article III.
 
 
 
FORECASTS, ORDERS AND SHIPMENT
8
 
 
Section 3.1. Forecasts.
8
Section 3.2. Orders.
8
Section 3.3. Delivery.
9
 
 
Article IV.
 
 
 
REPRESENTATIONS AND WARRANTIES
10
 
 
Section 4.1. Representations and Warranties of the Manufacturer.
10
Section 4.2. Representations and Warranties of the Buyer.
12
 
 
Article V.
 
 
 
QUALITY ASSURANCE
12
 
 
Section 5.1. The Manufacturers’ Covenants.
12
Section 5.2. The Buyer’s Covenants
13
Section 5.3. Rejection of Delivered Supply Products.
13
Section 5.4. Non-Conforming Supply Products.
14
Section 5.5. Recall.
14
Section 5.6. Quality Procedures.
15
Section 5.7. Regulatory Communications.
15

i



 
 
Article VI.
 
 
 
PRICE AND PAYMENTS
15
 
 
Section 6.1. Prices.
15
Section 6.2. Adjustment.
15
Section 6.3. Invoices.
16
Section 6.4. Taxes, etc.
16
Section 6.5. Separate Sale.
16
Section 6.6. Deductions.
17
 
 
Article VII.
 
 
 
TERM AND TERMINATION
17
 
 
Section 7.1. Term.
17
Section 7.2. Termination.
17
Section 7.3. Effects of Termination.
18
 
 
Article VIII.
 
 
 
FORCE MAJEURE
19
 
 
Section 8.1. Force Majeure.
19
 
 
Article IX.
 
 
 
CONFIDENTIALITY
20
 
 
Section 9.1. Non-disclosure and Non-use Obligation.
20
 
 
Article X.
 
 
 
INDEMNIFICATION
21
 
 
Section 10.1. By the Manufacturers.
21
Section 10.2. By the Buyer.
21
Section 10.3. Procedures.
21
Section 10.4. Insurance.
22
Section 10.5. Limitations.
22
 
 
Article XI.
 
 
 
INTELLECTUAL PROPERTY RIGHTS
22
 
 

ii



Section 11.1. License.
22
 
 
Article XII.
 
 
 
MISCELLANEOUS
23
 
 
Section 12.1. Assignment.
23
Section 12.2. Severability.
23
Section 12.3. Notices.
23
Section 12.4. Applicable Law.
26
Section 12.5. Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL.
26
Section 12.6. Entire Agreement.
27
Section 12.7. Headings.
28
Section 12.8. Independent Contractors.
28
Section 12.9. Allergan
28
Section 12.10. Waiver.
28
Section 12.11. Counterparts.
28
Section 12.12. No Benefit to Third Parties.
28
 
 
 
Exhibits and Schedules
 
 
 
 
 
Schedule 1.1
Specifications
 
Schedule 3.2(d)
Initial Firm Order
 
Schedule 3.2(f)
Certain Products
 
Schedule 4.1(a)
Minimum Shelf Life
 
Schedule 6.1
Transfer Prices and Batch Quantities
 

iii



SUPPLY AGREEMENT
This Supply Agreement (this “ Supply Agreement ”), dated as of June 20, 2016, by and among Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”), Actavis Elizabeth LLC, a Delaware limited liability company (“ Actavis Elizabeth ”), Actavis Group PTC Ehf., an Iceland einkahlutafelag (“ Actavis PTC ”), Actavis Holdco US, Inc., a Delaware corporation (“ Actavis Holdco ”), Actavis LLC, a Delaware limited liability company (“ Actavis LLC ”), Actavis Mid Atlantic LLC, a Delaware limited liability company (“ Actavis Mid Atlantic ”), Actavis Pharma, Inc., a Delaware corporation (“ Actavis Pharma ”), Actavis South Atlantic LLC, a Delaware limited liability company (“ Actavis South Atlantic ”), Andrx LLC, a Delaware limited liability company (“ Andrx ”), Breath Ltd., a United Kingdom private limited company (“ Breath ”), The Rugby Group, Inc., a New York corporation (“ Rugby ”), and Watson Laboratories, Inc., a Nevada corporation (“ Watson ” and, together with Actavis Elizabeth, Actavis PTC, Actavis Holdco, Actavis LLC, Actavis Mid Atlantic, Actavis Pharma, Actavis South Atlantic, Andrx, Breath and Rugby, each a “ Manufacture r” and, collectively, the “ Manufacturers ”).
WITNESSETH:
WHEREAS, the United States Federal Trade Commission (“ FTC ”) Staff has raised the concern that the proposed acquisition (the “ Proposed Allergan Transaction ”) of certain businesses and assets of Allergan plc (“ Allergan ”) by Teva Pharmaceutical Industries Ltd. (“ Teva ”) pursuant to that Master Purchase Agreement dated as of July 26, 2015, by and between Allergan and Teva, as it may be amended from time to time (the “ Master Purchase Agreement ”), may produce anti-competitive effects in the alleged relevant product market(s) in the United States for the generic pharmaceutical on-market and pipeline products listed on Schedule 6.1 (as such products are more specifically identified in this Supply Agreement), which would not be in the public interest, including, but not limited to, by eliminating competition between Teva and Allergan;
WHEREAS, in order to resolve the concerns raised by the FTC Staff in these alleged product markets in the United States, Teva has agreed to divest certain assets relating to these products to the Buyer, to permit the Buyer to replace the lost competition by manufacturing, marketing and selling the generic products referred to above into the respective alleged product markets;
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of the date hereof, by and between the Buyer and the Manufacturers (the “ Asset Purchase Agreement ”), the Buyer purchased certain assets relating to the Supply Products (the “ Acquisition ”);
WHEREAS, in connection with the Acquisition, the Buyer desires to engage the Manufacturers to manufacture and/or supply the Supply Products to the Buyer on a transitional basis, and to provide the Buyer with ample opportunity to establish its own Manufacturing capabilities, whether directly or through a third-party, upon the terms and subject to the conditions set forth herein;

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.


WHEREAS, the Manufacturers wish to manufacture and/or supply the Supply Products to the Buyer upon the terms and subject to the conditions set forth herein;
WHEREAS, concurrently with the execution of this Supply Agreement, a certain Person who will be an Affiliate of Manufacturers as of the Closing entered into a supply agreement with the Buyer related to the Order (the “ Other Supply Agreement ”), pursuant to which (i) the Buyer agrees to engage such Affiliate of the Manufacturers as of the Closing to manufacture and/or supply the Supply Products (as defined in the Other Supply Agreement) to the Buyer on a transitional basis, and to provide the Buyer with ample opportunity to establish its own Manufacturing (as defined in the Other Supply Agreement) capabilities, whether directly or through a third party, all upon the terms and conditions set forth therein and (ii) such Affiliate of the Manufacturers as of the Closing agrees to Manufacture (as defined in the Other Supply Agreement) and/or supply the Supply Products (as defined in the Other Supply Agreement) to the Buyer upon the terms and subject to the conditions set forth therein; and
WHEREAS, the FTC has or is about to issue an Order governing the scope, nature, extent and requirements of this Supply Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

2

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Article I.
DEFINITIONS
Section 1.1.      Definitions.
Any capitalized terms or any other terms specifically defined in the Asset Purchase Agreement and used herein will have the meaning ascribed to them in the Asset Purchase Agreement, unless otherwise expressly set forth below or herein. As used herein the words “including” or “includes” shall be deemed to mean “including, without limitation,” or “includes, without limitation”.
As used in this Supply Agreement, the following terms will have the meanings ascribed to them below:
(a) [****] Customers ” means the retailers, wholesalers, and distributors whose [****], in units, of that Supply Product to U.S. customers during the [****] period prior to the date hereof.
(b) Actual Manufacturing Costs ” has the meaning set forth in Section 6.1.
(c) ANDA ” means the abbreviated new drug application for each Supply Product as approved by the FDA.
(d) API ” means active pharmaceutical ingredient.
(e) Asset Purchase Agreement ” has the meaning set forth in the Recitals.
(f) [****] ” has the meaning set forth in Section 6.2(a).
(g) Buyer Taxes ” has the meaning set forth in Section 6.4.
(h) Buyer Trademark ” has the meaning set forth in Section 11.1.
(i) cGMP Requirements ” means the FDA’s current good manufacturing practice requirements as promulgated under the FFDCA at 21 C.F.R. (parts 11, 210 and 211), and as further defined by FDA guidance documents, as such may be amended from time to time.
(j) COA ” has the meaning set forth in Section 3.3(b).
(k) COC ” has the meaning set forth in Section 3.3(b).
(l) Extended Term ” has the meaning set forth in Section 7.1.
(m) FFDCA ” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq ., as amended.

3

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(n) Firm Order ” has the meaning set forth in Section 3.2.
(o) [****] ” has the meaning set forth in 3.1.
(p) Force Majeure ” has the meaning set forth in Section 8.1.
(q) Forecast ” has the meaning set forth in Section 3.1.
(r) Forms ” has the meaning set forth in Section 12.6.
(s) FTC Interim Monitor ” means the monitor appointed by the FTC pursuant to the Decision and Order in In the Matter of Teva Pharmaceutical Industries Ltd. in 2016 relating to the Proposed Allergan Transaction.
(t) [****] ” has the meaning set forth in Section 6.1.
(u) Initial Term ” has the meaning set forth in Section 7.1.
(v) Manufacturer ” or “Manufacturers” has the meaning set forth in the preamble.
(w) Manufacturing ” or “ Manufactured ” means the manufacture and packaging of Supply Products, including, without limitation, mix, fill and finish.
(x) Master Purchase Agreement ” has the meaning set forth in the recitals.
(y) [****] ” means the [****].
(z) Party ” or “ Parties ” means the Manufacturers and/or the Buyer, as applicable.
(aa) Purchase Order Date ” has the meaning set forth in Section 3.2(a).
(bb) [****] ” means the [****].
(cc) Specifications ” means the requirements and standards for the Supply Products set forth on Schedule 1.1 , as amended or supplemented in accordance with this Supply Agreement.
(dd) Successful Product Technology Transfer ” has the meaning set forth in Section 7.1
(ee) Supply Agreement ” has the meaning set forth in the preamble.
(ff) Supply Failure ” means, [****] the inability of the Manufacturers to supply at least [****] percent ([****]%) of ordered quantities of Supply Product to Buyer for a period of at least [****] following the confirmed delivery date set forth in a Firm Order.

4

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(gg) Supply Pipeline Product ” means the Supply Product [****], then such Supply Product will cease being a Supply Pipeline Product hereunder and under the Asset Purchase Agreement.
(hh) Supply Products ” means the generic pharmaceutical on-market and pipeline Supply Products listed on Schedule 6.1 that are to be supplied by the Manufacturers to the Buyer hereunder.
(ii) Term ” has the meaning set forth in Section 7.1.
(jj) Transfer Prices ” means the amount(s) to be paid by the Buyer to each Manufacturer pursuant to Section 6.1 and as may be adjusted from time to time pursuant to Section 6.2.
Section 1.2.      Incorporation by Reference and Supremacy of FTC Order
(a) Incorporation of FTC Order . The Parties hereby agree and acknowledge that the terms and provisions of the Order of the FTC shall govern this Supply Agreement. The terms and provisions of the Order that pertain to this Supply Agreement are hereby deemed incorporated by reference into this Supply Agreement.
(b) Supremacy of FTC Order. To the extent that any term or provision of this Supply Agreement conflicts with any corresponding term or provision of the Order, the Parties hereby agree that the terms or provisions of the Order shall control the rights and obligations of the Parties.
(c) Supremacy of Certain Terms and Provisions of this Supply Agreement . Notwithstanding the application of Section 1.2(b), above, the Parties hereby agree that to the extent that any terms or provisions of this Supply Agreement do not conflict with the Order, but confer greater rights or benefits to the Buyer, or more greatly obligate the Manufacturers, than the corresponding terms or provisions of the Order, then the terms or provisions of this Supply Agreement shall control the rights and obligations of the Parties.
Article II.
    
MANUFACTURE AND SALE OF SUPPLY PRODUCTS
Section 2.1.      Engagement.
During the Term and upon the terms and subject to the conditions set forth herein, the Buyer hereby agrees to purchase from the Manufacturers, and the Manufacturers agree to supply the Supply Products to Buyer for sale by Buyer in the Territory. The Manufacturers shall have the right to subcontract their obligations under this Supply Agreement to a third party; provided, however that the Manufacturers shall be responsible for all the acts and omissions of the subcontractor and no subcontract shall release the Manufacturers from their respective responsibilities for their obligations under this Supply Agreement.

5

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 2.2.      Sale and Distribution.
The Buyer will sell the Supply Products only in the Territory and will not directly or indirectly sell or otherwise distribute the Supply Products outside of the Territory. The Buyer shall have the sole and exclusive right to determine all terms and conditions of sale by it of the Supply Products.
Section 2.3.      Packaging and Labeling.
Supply Products and all labeling and packaging used in connection therewith shall include the appropriate product trademarks associated with any specific Supply Product, in the manner and to the extent specified in the Specifications. The Buyer will be responsible for ensuring the accuracy of all information contained on all labels for Supply Products and for the compliance of all such labels with applicable Governmental Rules. Each Manufacturer will, or will cause its contractors to, supply all packaging and labels for Supply Products under this Supply Agreement. Such packaging and labels will be in accordance with the Specifications. Each Manufacturer will make any changes to labeling and packaging specifications required in writing by the Buyer, at the Buyer’s sole cost and expense, within a reasonable timeframe to be agreed upon in writing by both Parties. The Buyer will be responsible for submitting any such changes to all applicable Governmental Entities for approval, if required, and the Manufacturers shall provide all support and documents reasonably necessary in this regard.
Section 2.4.      Facility Maintenance; Inspection; Reports.
(a) Each Manufacturer shall, at all times, maintain and operate, or cause its contractors to maintain and operate, all facilities where Supply Products are manufactured, packaged, tested, stored, warehoused or shipped, and implement such quality control procedures, as is reasonably required so as to be able to perform its obligations hereunder in accordance with all applicable Governmental Rules, including without limitation, the cGMP Requirements. Not more than [****] (or more often for follow‑up audits or inspections directed at significant or critical quality issues observed during the regular audit or brought to the Buyer’s attention through customer complaints or claims or by Governmental Entities), each Manufacturer shall permit, or cause its contractors to permit, quality assurance representatives of the Buyer or designated third parties to inspect such facilities, operations, documents, and records related to the handling, manufacture, testing, inspection, packaging, storage, disposal and transportation of the Supply Products by each Manufacturer or the applicable contractor upon reasonable notice (which shall not be less than [****]), during normal business hours and on a confidential basis. Each Manufacturer shall also permit, and cause its contractors to permit, representatives of the FDA to inspect such facilities as requested by the FDA. Each Manufacturer shall promptly provide, or cause its contractor to provide, the Buyer with a copy of any FDA Form 483s received at the conclusion of an inspection relating to any Supply Product sold by it or any facility where any Supply Product is Manufactured (to the extent the observation affects the Manufacture of the Supply Product).

6

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b) Each Manufacturer shall maintain adequate and accurate records consistent with the applicable Specifications, including records covering quality control testing and release of the Supply Products and all other Manufacturing services provided hereunder in material compliance with the cGMP Requirements and any other relevant Governmental Rules, at all times during the performance of the Manufacturing services and for a period as required by Governmental Rules.
(c) Each Manufacturer shall promptly notify Buyer of any FDA inspection of the Manufacturing facilities (but in any event no later than [****] after the commencement of such inspection) if such inspection pertains to any Supply Product and, in such case, shall make all such records available to the FDA as required by applicable Governmental Rules. Each Manufacturer shall promptly notify Buyer of any such disclosure and shall provide copies of any records made available to FDA, but only if and to the extent the same relate to the Supply Products and such Manufacturer’s obligations hereunder (redacted as appropriate to reflect any confidential information of such Manufacturer and its other customers); provided that any such disclosure shall be for this limited purpose and Buyer shall hold such information in confidence, and may not share any such information with any third parties except as required by a Governmental Entity or by Governmental Rules.
(d) Subject to the foregoing record maintenance requirement and only with respect to any Supply Product that is supplied by a Manufacturer, such Manufacturer shall notify Buyer before destroying any records developed under this Supply Agreement and maintained in accordance with Section 2.4(b), it being understood that in respect of any Supply Product that is supplied by such Manufacturer pursuant to a retained ANDA, such Manufacturer shall only be required to notify Buyer before destroying any records to the extent the records relate to the Supply Products purchased by Buyer under this Supply Agreement. In such case, Buyer shall have the option of having the records shipped to Buyer in accordance with Buyer’s reasonable instructions and at Buyer’s sole cost and expense. Buyer shall also have the option, at any time not later than [****] after the termination date of this Supply Agreement, of having one copy of any records developed under this Supply Agreement shipped to Buyer in accordance with Buyer’s reasonable instructions and at Buyer’s sole cost and expense.
Section 2.5.      Adverse Events.
Prior to the Closing Date the Parties shall each assign a representative to negotiate in good faith and agree on a process and procedure for sharing adverse event information which shall be documented in a pharmacovigilance agreement which the Parties shall use commercially reasonable efforts to agree upon and execute prior to the Closing Date. Pending adoption of such agreement, the Parties shall implement a transition plan for exchange of any and all information concerning adverse events related to use of the Supply Products regardless of source, and the Parties shall ensure compliance with legal requirements.

7

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Article III.
    
FORECASTS, ORDERS AND SHIPMENT
Section 3.1.      Forecasts.
In order to assist in the planning of production runs for the Supply Products, the Buyer will, within [****] following the execution of this Supply Agreement, provide each Manufacturer with a non-binding written forecast of estimated quantities of Supply Product that the Buyer anticipates ordering from each such Manufacturer during the next [****] period (the “ Forecast ”). This initial Forecast will be updated monthly [****] basis and such updated Forecast will be promptly delivered to each Manufacturer by the Buyer; provided that, in any updated Forecast, Buyer may not [****]. The Buyer will forecast [****]. Each Forecast will be made by the Buyer in good faith, taking into account reasonable projections of demand for the Supply Products including, without limitation, demand in line with prescription trends, and allowing for reasonable safety stock. Each Manufacturer shall use its commercially reasonable efforts to ensure sufficient manufacturing capacity to meet the Forecast.
Section 3.2.      Orders.
(a) The Buyer will place firm purchase orders (“ Firm Orders ”) for Supply Products in writing for delivery at least [****] after the Purchase Order Date. Each applicable Manufacturer shall accept or reject each Firm Order in writing within [****] after its receipt of each order, it being understood that the Manufacturer may reject a Firm Order [****]. Each Firm Order will specifically refer to this Supply Agreement [****]. Except with respect to the initial Firm Order as set forth on Schedule 3.2(d) hereto, each Firm Order shall cover the Buyer’s desired quantity of the Supply Products for the [****] period immediately following the applicable delivery date. The minimum size of any order placed by the Buyer with respect to a Supply Product will be [****], except with the advance approval of such Manufacturer. The Supply Products set forth in Firm Orders will be delivered to such location as the applicable Manufacturers designate in writing to the Buyer from time to time. The date an order will be deemed placed (the “ Purchase Order Date ”) will be the date that such Manufacturer actually receives the purchase order form. The Buyer will be fully responsible for any changes to a Firm Order. Firm Orders will be deemed accepted by such Manufacturer unless it rejects a Firm Order for reasons constituting a Force Majeure or for the failure of a Firm Order to comply with the provisions of this Supply Agreement and provides notification of such rejection to the Buyer within [****] of receipt of the Firm Order. In the event that a Firm Order is so rejected, such Manufacturer shall provide to Buyer the reasons for rejection in writing and such Manufacturer and the Buyer will cooperate in good faith to promptly resolve any supply issues raised by such order. Each Manufacturer shall use reasonable best efforts to timely supply any Supply Products in accordance with the resolution of a rejected Firm Order.
(b) Each applicable Manufacturer will supply the Supply Products in accordance with each Firm Order placed pursuant to the terms of this Supply Agreement by the Buyer and accepted by such Manufacturer including the quantities and delivery dates requested

8

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



in each Firm Order. Each Firm Order will set forth a delivery date, not less [****] after the date of such order. In the event delivery of Supply Products pursuant to a Firm Order is delayed by more than [****], the Buyer will be entitled to revise its forecasts and reschedule orders under Section 3.1 and this Section 3.2 to address such delay in a reasonable manner without penalty of any kind whatsoever; provided, however, that any revision shall not be deemed a waiver by the Buyer of any claim for a breach of this Section 3.2(b) by the applicable Manufacturer.
(c) Notwithstanding any other provisions to the contrary herein or in the Asset Purchase Agreement, each Manufacturer in its sole discretion may supply or cause its Affiliates to supply Buyer with the Supply Products listed on Schedule 6.1 from a facility approved as a Manufacturing site under the applicable ANDA or NDA retained by the Manufacturers or their Affiliates, and the Parties shall cooperate with each other to effectuate any changes to the labeling, packaging or ANDA or NDA that may be required due to such fulfillment from the alternate Manufacturing site.
(d) The initial Firm Order is attached as Schedule 3.2(d) hereto. The Manufacturers will deliver the Supply Products subject to the initial Firm Order no later than [****] following the Closing Date.
(e) [****]. Except as otherwise provided in Section 3.2(f), this Section 3.2(e) shall be the sole and exclusive remedy of the Buyer with respect to any such failure to timely deliver the initial Firm Order for the Supply Products by any Manufacturer under this Supply Agreement (including through purchases of Supply Products by Buyer under Section 3.2(f), if applicable).
(f) The Parties agree that all or a portion of each Manufacturer’s existing and available inventory of certain Supply Products bearing such Manufacturer’s or its Affiliate’s NDC Number as set forth on Schedule 3.2(f) or as may otherwise be agreed by the Parties may be supplied by such Manufacturer in order to fulfill Buyer’s initial Firm Order with respect thereto and to enable Buyer to sell such Supply Products to third parties. Each Party’s responsibilities with respect to Medicaid Reimbursements and Rebates, returns, rebates, adverse event reporting, audits, administrative fees, chargebacks, shelf stock adjustments and similar payments and reporting obligations in connection with the sale of such Supply Products bearing such Manufacturer’s or its Affiliate’s NDC Numbers are set forth in Appendix III of the Asset Purchase Agreement.
(g) The terms of this Supply Agreement shall prevail over any conflicting, inconsistent or additional terms set forth in any Firm Order.
Section 3.3.      Delivery.
(a) All Supply Products shipped under this Supply Agreement will be shipped [****] the relevant Manufacturer’s facility or, if applicable, the designated facility of its contract manufacturer to such location designated by the Buyer in the applicable Firm Order. The [****] will pay all freight, insurance charges, taxes, import and export duties, inspection fees and other

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



charges applicable to the sale and transport of Supply Products purchased by the Buyer. Title and risk of loss and damages to Supply Products purchased by the Buyer will pass to the Buyer [****]. In the event of damage or loss to the Supply Products [****] will be responsible to file claims with the carrier. Each Manufacturer shall notify Buyer of the following information concurrently with each shipment of Supply Product by such Manufacturer: (i) date of shipment, (ii) quantity and type of Supply Product shipped, and (iii) order number or other identifying information.
(b) Each Manufacturer shall perform quality assurance testing with respect to the Supply Products sold by it hereunder, including stability testing, so that the Supply Products conform with the Specifications. With each shipment of Supply Products to Buyer, the Manufacturers shall provide Buyer with a Certificate of Analysis (“ COA ”) and a Certificate of Compliance (“ COC ”) confirming that the Supply Products in such shipment have been tested in accordance with the ANDAs and meet the Supply Products Specifications. The results of such testing shall accompany each COA. In addition, with each shipment of Supply Products to Buyer, the Manufacturers shall provide to Buyer a COC confirming that the Supply Products in such shipment have been manufactured in accordance with all of the requirements of the Agreement and the applicable ANDA, in all material respects (without giving effect to any materiality qualifications set forth in any provision of this Supply Agreement). Any deviations and investigations related to such Supply Products shall be completed in compliance with applicable ANDA, cGMP Requirements and the Quality Agreement (as defined in Section 5.6 hereof).
(c) The Buyer represents and warrants that it will not ship Supply Product prior to the Closing Date.
Article IV.
    
REPRESENTATIONS AND WARRANTIES
Section 4.1.      Representations and Warranties of the Manufacturer.
Each Manufacturer hereby represents and warrants to the Buyer as follows:
(a) Supply Product Compliance . All Supply Products delivered pursuant to this Supply Agreement by such Manufacturer (or any sub-contractor thereof) to the Buyer or its designee during the Term will at shipment be in compliance in all material respects with this Supply Agreement, the Specifications, the Quality Agreement and applicable Governmental Rules, including the cGMP Requirements, and the Manufacturing of such Supply Products will have been in accordance with the cGMP Requirements. At the time such Manufacturer makes each shipment of Supply Product available for pick-up by Buyer (or Buyer’s carrier), the Supply Products shall: (i) not be adulterated or misbranded within the meaning of the FFDCA or within the meaning of any applicable state or municipal Law in which the definitions of adulteration and misbranding are substantially the same as those contained in the FFDCA, as such FFDCA and such Laws are constituted and in effect at the time of delivery; (ii) not be an article that may

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



not be introduced into interstate commerce under the provisions of Sections 404 and 505 of the FFDCA; and (iii) have a shelf life that is not more than [****] into the product expiration, provided , however , that with respect to the initial Firm Order, for Supply Products that have a normal shelf life of [****], such Supply Products will have a minimum remaining shelf life of not less than [****], except with respect to the Supply Products set forth on Schedule 4.1(a), which shall have a minimum shelf life as set forth therein.
(b) Authorization . This Supply Agreement has been duly executed and delivered by such Manufacturer and, assuming due execution and delivery by the Buyer, constitutes a valid and binding obligation, enforceable against such Manufacturer in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Supply Agreement have been duly authorized by all necessary action on the part of the Manufacturer and its respective officers and directors.
(c) No Encumbrance . Title to all Supply Products supplied by such Manufacturer to Buyer hereunder shall pass to Buyer as provided herein free and clear of all Encumbrances, other than Permitted Encumbrances.
(d) Absence of Conflicts . The execution, delivery and performance of this Supply Agreement by such Manufacturer does not conflict with or constitute a default under any agreement, instrument or understanding, oral or written to which it is a party or by which it may be bound, does not conflict with any provision of any of its organizational documents and does not conflict with or violate any Governmental Rule or court order or decree.
(e) Organization and Standing . Such Manufacturer is a corporation or other entity, duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization.
(f) Power and Authority . Such Manufacturer has the corporate or similar power and authority to execute, deliver and perform this Supply Agreement and to consummate the transactions contemplated hereby.
(g) Compliance With Law . Such Manufacturer has and will maintain throughout the term of this Supply Agreement all permits, licenses, registrations and other forms of governmental authorization and approval as required by Law in order for such Manufacturer to execute and deliver this Supply Agreement and to perform its obligations hereunder in accordance with all applicable Laws.
(h) No Debarment . Such Manufacturer is not debarred and has not and will not use in any capacity the services of any person debarred under subsection 306(a) or (b) of the Generic Drug Enforcement Act of 1992. If at any time this representation and warranty is no longer accurate, such Manufacturer shall promptly notify Buyer of such fact.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(i) No Enforcement Actions . There are no pending or, to the Knowledge of such Manufacturer, threatened enforcement actions, recalls, withdrawals or notices of health or safety risks to or from the FDA or other federal, state or foreign Governmental Entity which has jurisdiction over such Manufacturer’s operations which relate to the Supply Products sold by it.
Section 4.2.      Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to each Manufacturer as follows:
(a) Authorization . This Supply Agreement has been duly executed and delivered by the Buyer and, assuming due execution and delivery by each Manufacturer, constitutes a valid and binding obligation, enforceable against the Buyer in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Supply Agreement have been duly authorized by all necessary action on the part of the Buyer and its respective officers and directors.
(b) Absence of Conflicts . The execution, delivery and performance of this Supply Agreement by the Buyer does not conflict with or constitute a default under any agreement, instrument or understanding, oral or written to which it is a party or by which it may be bound, does not conflict with any provision of any organizational documents of the Buyer and does not conflict with or violate any Governmental Rule or court order or decree.
(c) Organization and Standing . The Buyer is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.
(d) Power and Authority . The Buyer has the corporate power and authority to execute, deliver and perform this Supply Agreement and to consummate the transactions contemplated hereby.
Article V.
    
QUALITY ASSURANCE
Section 5.1.      The Manufacturers’ Covenants.
Each Manufacturer hereby covenants during the Term that it will (and will use commercially reasonable efforts to cause its contractors to):
(a) manufacture, fill, package, test, handle, store, warehouse and ship the Supply Products sold by it in conformity with this Supply Agreement, Quality Agreement, Governmental Rules , and cGMP Requirements and the Specifications;

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b) promptly (but in any event no later than [****] after becoming aware) inform Buyer of any inspections, communications, or material issues raised by the FDA in connection with the Manufacturing of the Supply Products sold by such Manufacturer, and, in each case, shall provide Buyer with copies of any correspondence (including emails) relating thereto;
(c) obtain and maintain all permits reasonably necessary to Manufacture and supply all Supply Product sold by it subject to an FDA approved ANDA in accordance with the Specifications, applicable Governmental Rules and this Supply Agreement; and
(d) if such Manufacturer becomes aware of any Supply Products sold by it that have not been manufactured in accordance with the Specifications and that have been supplied, promptly take such corrective action as shall be reasonably necessary to correct such nonconformity and inform Buyer in writing.
Section 5.2.      The Buyer’s Covenants
The Buyer hereby covenants during the Term that it will:
(a) hold, store, handle, ship, deliver, distribute and/or sell the Supply Products (i) in accordance with applicable cGMP Requirements and Governmental Rules, including but not limited to any risk management programs required by the FDA; and (ii) in compliance with the Specifications;
(b) enter into all necessary compliance agreements as may be reasonably designated by any Manufacturer, including but not limited to agreements to cover quality assurance and adverse incident reporting; and
(c) except in respect of the requirements set forth in Section 3.3(b) and Section 5.1 hereof, upon delivery of the Supply Products to the Buyer, the Buyer will be solely responsible for compliance with all quality control testing and other testing requirements set forth in this Supply Agreement and all related Governmental Rules with respect to such Supply Products.
Section 5.3.      Rejection of Delivered Supply Products.
Within [****] of receipt by the Buyer at its applicable warehouse of any shipment of Supply Product and applicable COA and COC, the Buyer will inspect the Supply Product, COA and COC and advise the applicable Manufacturer of any defect whereby the Supply Product does not conform to the Specifications. Any Supply Product not refused within [****] will be deemed accepted. If the Buyer wishes to refuse acceptance, the Buyer will, within such [****] period, provide written notice to such Manufacturer of its refusal to accept the defective Supply Product and the reason(s) therefor. In the event a hidden defect (i.e., one which could not have been reasonably identified during the initial [****] Buyer inspection period) is discovered at a later date whereby the Supplied Product does not conform to the Specifications, the Buyer shall inform such Manufacturer as soon as practicable after Buyer becomes aware of the alleged

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



hidden defect. In the event that the Buyer refuses acceptance or rejects the Supply Product due to a hidden defect, the Manufacturer, upon confirmation of the reasons for refusal or rejection of the Supply Product, will replace within [****] or as soon as reasonably practicable the defective Supply Product at such Manufacturer’s sole cost and expense or refund the Transfer Price, at the Buyer’s option. If such Manufacturer and the Buyer do not agree on the refusal or rejection of Supply Products, then any Party may refer the matter for final analysis to [****]. Except as set out in this Section 5.3, such Manufacturer shall have no liability to Buyer for any defect (other than hidden defects) for which it has not received notice from the Buyer within the [****] Buyer inspection period or for any hidden defect for which it was not informed as soon as practicable after Buyer became aware of such hidden defect.
Section 5.4.      Non-Conforming Supply Products.
Notwithstanding any other provisions of this Supply Agreement, the Buyer agrees to return to the applicable Manufacturer (or, at such Manufacturer’s direction, to its contractors) any Supply Products that do not conform with the Specifications at the time of shipment to the Buyer, or if the Buyer and such Manufacturer mutually agree, to dispose of such Supply Products as such Manufacturer may direct. Such Manufacturer shall be responsible for the reasonable and documented costs associated with the return and proper disposal of all such Supply Products not in conformance with the Specifications at the time of shipment and shall promptly (and, in any event, within [****] or as soon as reasonably practicable) replace (at such Manufacturer’s cost) or credit, at the option of the Buyer, such non-conforming Supply Products.
Section 5.5.      Recall.
Each Manufacturer shall maintain traceability records in accordance with the applicable Governmental Rules, including cGMP Requirements, and in accordance with any written instructions or guidelines provided to each such Manufacturer by the Buyer, necessary to permit a recall, field correction or other notification to the field, of the Supply Products. Buyer, in consultation with each such Manufacturer, shall have the exclusive right to institute a recall and shall be responsible for managing the recall and communications with customers and Governmental Entities; provided, however, notwithstanding the preceding, that for any Supply Product supplied pursuant to an ANDA owned by any such Manufacturer, Manufacturer, in consultation with Buyer, shall have the exclusive right to institute a recall and shall be responsible for managing the recall and communications with customers and Governmental Entities. The Parties shall cooperate with each other in connection with any such efforts. In the event that any Supply Product is quarantined or recalled by Buyer, or is subject to stop-sale action, whether voluntary or by governmental action, it is agreed and understood that [****]. Said determination may be made by the Governmental Entity involved, or by mutual agreement of the Parties following examination and review of all records pertinent to the manufacture of the Supply Products subject to such recall.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 5.6.      Quality Procedures.
Each Manufacturer and Buyer shall comply with the terms of the quality requirements set forth in a quality agreement to be negotiated in good faith by the Parties and entered into by the Parties as soon as practicable after the date hereof, but on or prior to the Closing Date (the “ Quality Agreement ”) with respect to the manufacture of the Supply Products. To the extent that any inconsistencies or conflicts exist between the Quality Agreement and this Supply Agreement with regard to quality requirements and compliance with Governmental Rules, the provisions in the Quality Agreement shall prevail.
Section 5.7.      Regulatory Communications.
Buyer shall be responsible for communicating with the FDA regarding the Supply Products and the Manufacturing performed by the Manufacturers hereunder and no Manufacturer shall initiate contact with the FDA or such other regulatory authority regarding the Supply Products or the Manufacturing without Buyer’s prior written consent, except when required by the terms of this Supply Agreement or by applicable Governmental Rules; provided , however , notwithstanding the preceding, that for any Supply Products supplied pursuant to an ANDA owned by any such Manufacturer, such Manufacturer shall be responsible for communicating with the FDA regarding such Supply Products and the Manufacturing performed by such Manufacturer hereunder and Buyer shall not initiate contact with the FDA or such other regulatory authority regarding the Supply Products or the Manufacturing without such Manufacturer’s prior written consent, except when required by the terms of this Supply Agreement or by applicable Governmental Rules. Each Party shall provide reasonable assistance to any other Party upon such Party’s reasonable request, and at the requesting party’s sole cost and expense, with respect to such regulatory communications.
Article VI.
    
PRICE AND PAYMENTS
Section 6.1.      Prices.
The prices payable by the Buyer for each of the Supply Products will be the prices set forth on Schedule 6.1 and will be adjusted pursuant to Section 6.2 (the “ Initial Price ” and as may be adjusted pursuant to Section 6.2, the “ Transfer Price ”). The prices for the Supply Products set forth on Schedule 6.1 are [****] determined on a [****] in U.S. dollars [****] as the sum of the [****] as determined in accordance with U.S. GAAP [****] provided that the Transfer Prices for an applicable Supply Product [****].
Section 6.2.      Adjustment.
(a) On each anniversary of the date the applicable Manufacturer fulfills an initial Firm Order with respect to any Supply Product, such Manufacturer shall have the right to increase the Transfer Price of such Supply Product by [****].

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



(b) On the fourth and fifth anniversaries of the date the applicable Manufacturer fulfills an initial Firm Order with respect to any Supply Product, if the Buyer has not completed the transfer of the Product Technology (as defined in the Asset Purchase Agreement) pursuant to Section 7.3(a) of the Asset Purchase Agreement, then such Manufacturer shall have the right to a payment equal to [****] of total annual costs of goods for the applicable Supply Product for the immediately preceding contract year and Buyer shall promptly (and in any event within [****] of such anniversary) deliver or cause to be delivered to such Manufacturer payment of such amount by wire transfer in immediately available funds, to the account or accounts designated in writing by such Manufacturer to Buyer.
Section 6.3.      Invoices.
Each Manufacturer will send all invoices in respect of any Supply Products sold by it to a single address specified in writing by the Buyer to each such Manufacturer following the date that such Supply Products subject to any Firm Order shall have been made available to the Buyer under Section 3.3(a). Payments for Supply Product sold hereunder will be made by the Buyer to such Manufacturer within [****] after the date of the invoice by check or electronic funds transmission in United States dollars as specified in any invoice, without any offset or deduction of any nature whatsoever. Notwithstanding the foregoing, the Parties acknowledge that the Manufacturers shall not invoice the Buyer, and the Buyer shall have no obligation to make payment hereunder, prior to the Closing Date. All payments will be made to such account as the Manufacturers will have specified in writing to the Buyer with written confirmation of payment sent by facsimile to such address as the Manufacturers will have specified in writing to the Buyer. If the Buyer fails to pay any undisputed invoiced amount when due to a Manufacturer, a service charge will be imposed by such Manufacturer equal to [****] that such undisputed amount is overdue. For the avoidance of doubt, Buyer will not have any obligation to make any payment in respect of the initial Firm Order if the Asset Purchase Agreement is terminated prior to the Closing Date.
Section 6.4.      Taxes, etc.
The Buyer will bear solely the cost of any taxes, levies, duties or fees of any kind, nature or description whatsoever applicable to the sale and transportation of Supply Product sold by a Manufacturer to the Buyer (“ Buyer Taxes ”), and the Buyer will forthwith pay to such Manufacturer all such sums upon demand. Such Manufacturer and Buyer shall cooperate with each other and use their commercially reasonable efforts to obtain any certificate or other document from any person as may be necessary to mitigate, reduce or eliminate any such Buyer Taxes.
Section 6.5.      Separate Sale.
Each shipment of Supply Product to the Buyer will constitute a separate sale, obligating the Buyer to pay therefor, whether said shipment is in whole or only partial fulfillment of any order or confirmation issued in connection therewith.

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 6.6.      Deductions.
Except as otherwise required by applicable Law, the Buyer agrees not to make any deductions of any kind from any payments becoming due to any Manufacturer unless the Buyer will have received prior written authorization from such Manufacturer authorizing such deduction.
Article VII.
    
TERM AND TERMINATION
Section 7.1.      Term.
The provisions of this Supply Agreement will commence on the date hereof and will expire (a) with respect to the Supply Pipeline Products, on the second (2 nd ) anniversary of the commercial launch of such Supply Pipeline Products and (b) with respect to the other Supply Products, on the second (2 nd ) anniversary of the Closing Date, in each case unless earlier terminated in accordance with this Article VII (the “ Initial Term ”). On a Supply Product-by-Supply Product basis, prior to the date on which (i) Buyer has successfully completed the transfer of the Product Technology pursuant to Section 7.3(a) of the Asset Purchase Agreement and (ii) Buyer has begun independent manufacture or supply and sales of the applicable Supply Product (“ Successful Product Technology Transfer ”), this Supply Agreement may be extended (x) with respect to Supply Pipeline Products, once at the request of the Buyer (the Buyer having provided at least ninety (90) days written notice prior to the expiration of the Initial Term to the applicable Manufacturers) for an additional one (1) year term and (y) with respect to the other Supply Products, three (3) times at the request of the Buyer (the Buyer having provided at least [****] written notice prior to the expiration of the Initial Term to the Manufacturer) for an additional one (1) year term, in each case, subject to approval of the FTC Staff or the FTC Interim Monitor, and subject to earlier termination in accordance with this Article VII (the “ Extended Term ” and together with the Initial Term, the “ Term ”).
Section 7.2.Termination.
The Manufacturers, on the one hand, or the Buyer, on the other hand, as applicable, will have the right to terminate this Supply Agreement with immediate effect (except as otherwise stated below) upon written notice to the other upon the occurrence of the following:
(a) any Manufacturer, on the one hand, or the Buyer, on the other hand, files a petition in bankruptcy, or enters into an agreement with its creditors, or applies for or consents to the appointment of a receiver or trustee, or makes an assignment for the benefit of creditors, or becomes subject to involuntary proceedings under any bankruptcy or insolvency Law; or
(b) any Manufacturer, on the one hand, or the Buyer, on the other hand, fails to cure any non-compliance with any of the terms and conditions hereof within the time period specified in any prior written notice (which will be at least [****]) delivered to the non-compliant Party by another Party; provided ; however , that the Manufacturers shall be permitted

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



to terminate under this Section 7.2(b) only for the Buyer’s failure to pay amounts due to the Manufacturers pursuant to this Supply Agreement and not disputed in good faith by Buyer (it being understood that any amounts due for Supply Product rejected pursuant to Section 5.3 shall be deemed to be disputed in good faith); or
(c) if the Buyer believes it has sufficient alternative supply of any Supply Product to meet its needs, then the Buyer may terminate this Supply Agreement with respect to such Supply Product upon [****] prior written notice to the applicable Manufacturers; or
(d) except as specifically provided in Section 7.2(b), no Manufacturer shall have any right to terminate its supply obligations under this Supply Agreement as a result of any breach by the Buyer; provided , however , that the Manufacturers shall be entitled to seek all other remedies available at Law or in equity; or
(e) if the Parties mutually agree in writing to terminate this Supply Agreement, following the provision of prior notice to the FTC Staff or the FTC Interim Monitor; or
(f) with respect to each Supply Product, upon the Successful Product Technology Transfer such that the Buyer has sufficient alternative supply of such Supply Product to meet its needs, then either Party may terminate this Supply Agreement with respect to such Supply Product upon [****] prior written notice to the other Party; or
(g) with respect to each Supply Pipeline Product, [****]; or
(h) termination of the Asset Purchase Agreement pursuant to Section 11.1(a) thereof.
Section 7.3.      Effects of Termination.
If this Supply Agreement is terminated pursuant to Section 7.2:
(a) The Buyer acknowledges and agrees that any Manufacturer will be entitled to cancel any Firm Order accepted prior to the effective date of termination with respect to any such Supply Product subject to such termination, and will not be obligated to supply any such Supply Products ordered by the Buyer pursuant to such Firm Order, with respect to such Supply Products to be delivered after the effective date of the termination; provided that with respect to a termination by Buyer pursuant to Section 7.2(b) or Section 7.2(c), any such Manufacturer will only be entitled to cancel any Firm Order accepted as of a date that is within [****] prior to the effective date of termination. In addition, the Buyer shall purchase from the Manufacturers all quantities of components, materials, APIs and work-in-progress in the Manufacturers’, their Affiliates’ and third party manufacturers’ possession that were reasonably purchased or produced in connection with such parties’ obligations to manufacture Supply Products and are not reasonably allocable to or usable for other activities being carried out by the Manufacturers or their Affiliates [****], which amount shall be payable no later than [****] after receipt thereof by the Buyer. In the event the Supply Agreement is terminated pursuant to

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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 7.2(c), the provisions of this Section 7.3(a) will apply only with respect to the Supply Products for which the Supply Agreement has been terminated.
(b) If the termination is by any Manufacturer due to a default by Buyer in the payment of any amount owed hereunder to such Manufacturer when due, then all of the liabilities and obligations of the Buyer to such Manufacturer, whether then due or not, will become immediately due and payable, and such Manufacturer will be entitled to cancel any Firm Order then outstanding and will not be obligated to supply any Supply Products ordered by the Buyer pursuant to such Firm Order.
(c) Subject to Section (a) and (b) hereof, termination or expiration of this Supply Agreement for any reason will not relieve the Parties of any obligation accruing prior to such termination or expiration (including in respect of any Firm Orders); provided , however , the Buyer will not have any obligation to make any payment in respect of the initial Firm Order if this Supply Agreement shall be terminated prior to the Closing Date. The rights and obligations of the Parties under Sections 5.5, 7.3, Article IX, Article X and Article XII of this Supply Agreement will survive the expiration or termination of this Supply Agreement.
(d) It is understood and agreed that the Buyer will be responsible for all Manufacturing of the Supply Products after the earlier of the termination (in accordance with the terms hereof) or expiration of this Supply Agreement. In addition, it is understood and agreed that the Buyer will be responsible, [****], except as otherwise required pursuant to the terms of the Asset Purchase Agreement.
Article VIII.
    
FORCE MAJEURE
Section 8.1.      Force Majeure.
None of the Parties will be deemed to have defaulted under or breached this Supply Agreement for failure or delay in fulfilling or performing any term or provision of this Supply Agreement (other than the payment of money) when such failure or delay will be caused (directly or indirectly) by a circumstance beyond the reasonable control of the affected Parties, including, without limitation, fire; flood; accident; explosion; terrorism, sabotage; strike, or any labor disturbance (regardless of the reasonableness of the demands of labor); civil commotions; riots; invasions; wars (present or future); acts, restraints, requisitions, regulations, or directions of any Governmental Entity, except where such acts, restraints, requisitions, regulations or directions are the result of a Party’s negligence or willful actions; voluntary or mandatory compliance by any Manufacturer with any request for material represented to be for purposes of (directly or indirectly) producing articles for national defense or national defense facilities; shortage of labor, fuel, power, or raw materials; inability to obtain supplies; failures of normal sources of supplies; inability to obtain or delays of transportation facilities; any act of God; any act of the other Party or any cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of such Party (each a “ Force Majeure ”). Any Party asserting its inability to

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perform any obligation hereunder for any such contingency shall promptly notify the other Party of the existence of any such contingency and shall use commercially reasonable efforts to mitigate such contingency and re-commence its performance of such obligation as soon as commercially practicable. Subject to this Section 8.1, if any Manufacturer is unable to supply the Buyer with its requirements of Supply Products by reason of Force Majeure, Force Majeure shall excuse such Manufacturer’s performance until the Force Majeure has ceased and for a reasonable period of time thereafter, to allow such Manufacturer to restore itself to the position it was in with respect to the Supply Products immediately prior to the Force Majeure. Within [****] of notification by such Manufacturer that it is able to resume the necessary supply of the Supply Products to the Buyer, the Buyer shall resume obtaining Supply Products from such Manufacturer pursuant to the terms of this Supply Agreement; however, in respect of any Firm Orders for the Supply Products the delivery of which was during such Force Majeure period, parties shall discuss in good faith the requirements of the Buyer and delivery of such Supply Products. None of the Parties shall suffer penalty or incur any liability for their inability to perform hereunder by reason of Force Majeure. If a Party fails to perform any of its obligations under this Supply Agreement by reason of Force Majeure and such non-performance continues for a period of [****] from the first occurrence of the event of Force Majeure, the other party may terminate this Supply Agreement with respect to any Supply Product that is directly related to, or the subject of, such Force Majeure event by providing written notice to that effect to the non-performing Parties. In the event of such termination, each Parties’ respective rights and obligations under this Supply Agreement shall terminate with respect to such Supply Product except for any amounts previously due and owing by one party to the other and except for any other obligations which this Supply Agreement expressly provides shall survive termination.
Article IX.
    
CONFIDENTIALITY
Section 9.1.      Non-disclosure and Non-use Obligation.
Each Party or its Affiliates or contractors may, from time to time, prior to or after the date hereof, disclose to the other Party information of a technical or non-technical nature that is not generally known to the trade or public. Each Party agrees that it will not use for any purpose other than as necessary to perform its obligations under this Supply Agreement, and will not disclose to anyone in any manner whatsoever, any such information including, without limitation, information relating in any way to the products, processes, and services of each Party or its Affiliates or contractors, which becomes known to the other Party on or prior to the date of the termination or expiration of this Supply Agreement. The obligations of this Section 9.1 will not apply to information (i) that is known to a Party as shown by written records prior to its disclosure by any Manufacturer or its contractors; (ii) that becomes public information or is generally available to the public other than by an unauthorized act or omission of the other Party; or (iii) that is received by a Party from third parties who are in rightful possession of such information and who are lawfully entitled to disclose such information and did not receive such information from the other Party. From and after the Closing Date, the Transferred Assets and all confidential information relating solely and exclusively to the Transferred Assets or the

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manufacture thereof shall be considered confidential information of Buyer under this Section 9.1 and the obligations of this Section 9.1 in respect thereof will apply to the Manufacturers and will not apply to Buyer; provided, however, to the extent such confidential information is also used by any Manufacturer in the retained business thereof or in fulfilling its obligations under this Supply Agreement, such confidential information shall constitute the confidential information of the Parties. Upon the termination or expiration of this Supply Agreement, each Party will return or destroy (with written confirmation thereof) to the other Party all documents that include confidential information of each Party or its contractors (other than, in the case of the Buyer, upon termination of this Supply Agreement after the Closing Date or expiration of this Supply Agreement, the Transferred Assets), including all copies of such documents or extracts therefrom, if any, and will make no further use of such information.
Article X.
    
INDEMNIFICATION
Section 10.1.      By the Manufacturers.
From and after the Closing Date, the Manufacturers will indemnify, defend and hold harmless, and pay and reimburse, the Buyer and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders from and against any and all Losses resulting from any claim by a third party to the extent and only to the extent attributable to the Manufacturers’ gross negligence, willful misconduct or breach of any of their representations and warranties, covenants, agreements or obligations contained in this Supply Agreement.
Section 10.2.      By the Buyer.
From and after the Closing Date, the Buyer will indemnify, defend and hold harmless, and pay and reimburse, each Manufacturer and its Affiliates and their respective officers, directors, employees, agents, advisors and shareholders from and against any and all Losses resulting from any claim by a third party (a) to the extent and only to the extent attributable to the Buyer’s gross negligence, willful misconduct or breach of any of its representations and warranties, covenants, agreements or obligations contained in this Supply Agreement; or (b) regarding any Supply Product sold by Buyer or its Affiliates from and after the Closing Date, including but not limited to (i) any claim for patent infringement, personal injury, death or property damage or (ii) the use of the Supply Products by any person; provided , however , that the Buyer shall not be liable for any Losses to the extent arising from each such Manufacturer’s negligence or breach of its representations and warranties, covenants, agreements or obligations contained herein.
Section 10.3.      Procedures.
In the event of any claims for indemnification made by one Party against the other Party under this Section 10, the procedure to be used for the administration and resolution of such claims will be as set forth in Section 12.5 of the Asset Purchase Agreement.

21

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 10.4.      Insurance.
At all times from the Closing Date through that date which is [****] after the termination or expiration of this Supply Agreement, the Buyer and the Manufacturers will maintain product liability insurance (or self insurance), which is reasonable and customary in the USA pharmaceutical industry for companies of comparable size, provided that in no event shall the product liability insurance amounts be [****] per year. The Buyer and the Manufacturers shall provide written proof of such insurance to the other Party upon request.
Section 10.5.      Limitations.
(a) In no event shall any Party be liable by reason of any breach of any representation, warranty, condition or other term of this Supply Agreement or any duty of common law, for any consequential, special, indirect, or incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise), and all Parties agree that they shall not make any such claim; provided, however, that the foregoing does not limit any of the obligations or liability of (i) any Party or its Affiliates under Sections 10.1 and 10.2 with respect to (1) claims for indemnity of unrelated third parties, (2) liability arising from fraud of a Party or its Affiliates and (3) with respect to Manufacturer’s breach of its obligations pursuant to Section 3.2 and Section 5.3, liability arising from fraud, intentional breach or willful misconduct of a Party or its Affiliates or (ii) a Manufacturer for a Supply Failure due to the gross negligence of such Manufacturer.
(b) Notwithstanding any other provision of this Supply Agreement, in the event that the Buyer asserts or claims that any Manufacturer has breached any of its obligations hereunder or that any Manufacturer is liable pursuant to Section 10.1, such Manufacturer’s maximum liability under or in connection with (i) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted prior to [****] shall be limited to [****] and (ii) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted on or following [****] shall be limited to [****].
Article XI.
    
INTELLECTUAL PROPERTY RIGHTS
Section 11.1.      License.
The Buyer hereby grants to each Manufacturer for the Term of this Supply Agreement, a royalty-free, non-exclusive, non-transferable, right and license under the Transferred Assets, as applicable in the Territory to manufacture and supply the Supply Products for the Buyer. This license is sublicenseable by each Manufacturer to contractors which such Manufacturer may cause to manufacture and supply the Supply Products.
To the extent that any of the Supply Products are marketed under a trademark or housemark of the Buyer (“ Buyer Trademark ”), Buyer hereby grants to each Manufacturer a revocable, non-assignable and non-exclusive license to apply and affix the Buyer Trademark on or in relation to the Supply Products manufactured for the Buyer hereunder; provided, however that nothing herein contained shall give or be deemed to give or shall be intended to give such Manufacturer any right, title, interest or claim in or to the Buyer Trademark.

22

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Article XII.
    
MISCELLANEOUS
Section 12.1.      Assignment.
None of the Parties may assign its rights or obligations under this Supply Agreement without (i) in the case of Manufacturers, the prior written consent of Buyer, or, (ii) in the case of Buyer, the prior written consent of Manufacturers, and (iii) the prior written consent of the FTC Staff or the FTC Interim Monitor; provided , however , that after the Closing Date any Party may assign its rights and obligations under this Supply Agreement, without the prior written consent of any Person to an Affiliate or to a successor of the assigning Party by reason of merger, sale of all or substantially all of its assets or the portion of its business which relates to a Supply Product or any number of the Supply Products, or any similar transaction. Any permitted assignee or successor-in-interest will assume all obligations of its assignor under this Supply Agreement. No assignment will relieve any Party of its responsibility for the performance of any obligation. This Supply Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Notwithstanding anything to the contrary contained herein, for the avoidance of doubt, any Manufacturer shall be permitted to delegate and assign any portion of its obligations hereunder to any of its Affiliates without the prior written consent of Buyer; provided that such delegation and assignment will not relieve such Manufacturer of its responsibility for the performance of any such obligation. 
Section 12.2.      Severability.
If any provision of this Supply Agreement is held to be illegal, invalid or unenforceable by any Law or public policy, the remaining provisions of this Supply Agreement will nevertheless remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom as long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties will negotiate reasonably and in good faith to modify this Supply Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible, subject to the approval of the FTC Staff or the FTC Interim Monitor.
Section 12.3.      Notices.
All notices and other communications required or permitted to be given or made pursuant to this Supply Agreement shall be in writing signed by the sender and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (c) on the Business Day after being sent by Federal Express or another recognized overnight mail service which utilizes a written form of receipt for next day or

23

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



next Business Day delivery or (d) two (2) Business Days after mailing, if mailed by United States postage-prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable Party at the address set forth below; provided that a Party may change its address for receiving notice by the proper giving of notice hereunder:
(a) if to the Buyer, to:
Impax Laboratories, Inc.
31047 Genstar Road
Hayward, CA 94544
Attn:    General Counsel
Facsimile No.: (510) 240-6096
With a copy (which shall not constitute notice) to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attn:    Francis J. Aquila
Matthew G. Hurd
Facsimile No.: (212) 291-9004 / (212) 291-9076
(a) if to the Manufacturers prior to Closing, to:
Allergan plc
Morris Corporate Center III
400 Interpace Parkway
Parsippany, New Jersey 07054
Attention: Chief Legal Officer and Secretary
Facsimile: +1 (862) 261-8043
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022-4834
Attn: Charles K. Ruck
R. Scott Shean
Facsimile: +1 (212) 751-4864
and
Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190

24

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and
Teva Pharmaceuticals USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A.
Attention: General Counsel
Fax: (215) 293-6499
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention:    Daniel E. Wolf
Facsimile:    (212) 446-6460
and
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Attention:    Mark Kovner
Facsimile:    (202) 879-5200
(b) if to the Manufacturers following Closing, to:
Teva Pharmaceutical Industries Ltd.
5 Basel Street
P.O.B. 3190
Petach Tikvah, Israel
Attention: Dror Bashan
Email: Dror.Bashan@teva.co.il
and
Teva Pharmaceuticals USA, Inc.
425 Privet Road
PO Box 1005
Horsham, PA 19044 U.S.A.

25

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Attention: General Counsel
Fax: (215) 293-6499
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Daniel E. Wolf
Facsimile No.: (212) 446-6460
and
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Attn: Mark Kovner
Facsimile No.: (202) 879-5200
It is understood and agreed that this Section 12.3 is not intended to govern the ordinary course business communications necessary among the Parties in performing their duties, in due course, under the terms of this Supply Agreement, including the placement of orders and the delivery of forecasts.
Section 12.4.      Applicable Law.
This Supply Agreement and any and all matters arising directly or indirectly herefrom shall be governed by and construed and enforced in accordance with the laws of the State of New York, U.S.A. applicable to agreements made and to be performed entirely in such state.
Section 12.5.      Jurisdiction, Venue, Service of Process, WAIVER OF JURY TRIAL.
(a) The Buyer and the Manufacturers agree to irrevocably submit to the exclusive jurisdiction of (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A., for the purposes of any suit, action or other proceeding arising out of this Supply Agreement or any transaction contemplated hereby. Each Party agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York, U.S.A. or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each Party further agrees that service of any process, summons, notice or document by U.S. registered mail or recognized international courier service to such Party’s respective address set forth in Section 12.3 of this Supply Agreement shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Supply Agreement. Each Party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or

26

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



proceeding arising out of this Supply Agreement or the transactions contemplated hereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, U.S.A.
(b) THE BUYER AND THE MANUFACTURERS HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS SUPPLY AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS SUPPLY AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS SUPPLY AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS SUPPLY AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS SUPPLY AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 12.6.    Entire Agreement.
This Supply Agreement and the attached Schedules, which are incorporated herein, along with the Asset Purchase Agreement and the Schedules and Exhibits thereto, constitute the entire agreement among the Parties with respect to the subject matter hereof and all prior agreements with respect hereto are superseded. Each Party confirms that it is not relying on any representations, warranties, covenants or understandings of any kind, nature or description whatsoever of the other Party, except such as are as specifically set forth herein or in the Asset Purchase Agreement. No amendment or modifications hereof will be binding upon the Parties unless set forth in a writing specified to be an explicit amendment to this Supply Agreement duly executed by authorized representatives of each of the Parties, and subject to the approval of the FTC Staff or the FTC Interim Monitor. The Parties recognize that, during the Term of this Supply Agreement, a purchase order, acknowledgement form or similar routine document (collectively “ Forms ”) may be used to implement or administer provisions of this Supply Agreement. Therefore, the Parties agree that the terms of this Supply Agreement, as it may be amended, will prevail in the event of any conflict between this Supply Agreement and the printed provision of such Forms, or typed provisions of Forms that add to, vary, modify or are in conflict with the provisions of this Supply Agreement with respect to the Supply Products sold during the Term of this Supply Agreement.

27

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



Section 12.7.      Headings.
The headings used in this Supply Agreement are intended for convenience only and will not be considered part of the written understanding among the Parties and will not affect the construction of this Supply Agreement.
Section 12.8.    Independent Contractors.
The relationship between the Manufacturers, on the one hand, and the Buyer, on the other hand, is solely that of buyer and seller. It is expressly agreed that the Manufacturers, on the one hand, and the Buyer, on the other hand, will be independent contractors and that neither the relationship among the Parties nor this Supply Agreement will be construed as creating a partnership, joint venture or agency. Neither the Manufacturers, on the one hand, nor the Buyer, on the other hand, will have the authority to make any statements, representations or commitments of any kind, or to take any action or to incur any liability or obligation which will be binding on the other, without (i) in the case of Manufacturers, the prior written consent of Buyer, or (ii) in the case of Buyer, the prior written consent of Manufacturers. All persons employed by a Party will be employees of such Party and not of the other Party and all costs and obligations incurred by reason of any such employment will be for the account and expense of such Party.
Section 12.9.      Allergan
Notwithstanding anything to the contrary contained herein, Buyer, on behalf of itself and its Affiliates acknowledges that neither Allergan nor any of its Affiliates (other than the Manufacturers) shall have any liability under this Supply Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, including, but not limited to, any dispute related to, or arising from, the Supply Products.
Section 12.10.    Waiver.
The waiver by any Party of any right hereunder, or, in the case of Manufacturers, the failure to perform or a breach by Buyer, or, in the case of Buyer, the failure to perform or a breach by Manufacturers, in each case will not be deemed a waiver of any other right hereunder or of any other or subsequent breach or failure by said other Party whether of a similar nature or otherwise.
Section 12.11.      Counterparts.
This Supply Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.
Section 12.12.      No Benefit to Third Parties.
The representations, warranties, covenants and agreements set forth in this Supply Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and

28

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



nothing herein, express or implied, is intended to or will confer upon any person or entity any legal or equitable rights, benefits or remedies.
[signature page follows]


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[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



IN WITNESS WHEREOF, the parties hereto have caused this Supply Agreement to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.
WATSON LABORATORIES, INC.
 
 
By:
 /s/ A. Robert D. Bailey
 
 
Name:
 A. Robert D. Bailey
 
 
Title:
 President
 
 
ACTAVIS HOLDCO US, INC.
 
 
By:
 /s/ A. Robert D. Bailey
 
 
Name:
 A. Robert D. Bailey
 
 
Title:
 President
 
 
THE RUGBY GROUP, INC.
 
 
By:
 /s/ A. Robert D. Bailey
 
 
Name:
 A. Robert D. Bailey
 
 
Title:
 President
 
 
ANDRX LLC
 
 
By:
 /s/ A. Robert D. Bailey
 
 
Name:
 A. Robert D. Bailey
 
 
Title:
 President
 
 

[Supply Agreement]




ACTAVIS ELIZABETH LLC
 
 
By:
 /s/ A. Robert D. Bailey    
 
 
Name:
 A. Robert D. Bailey    
 
 
Title:
 President            
 
 
ACTAVIS SOUTH ATLANTIC LLC
 
 
By:
 /s/ A. Robert D. Bailey    
 
 
Name:
 A. Robert D. Bailey    
 
 
Title:
 President            
 
 
ACTAVIS MID ATLANTIC LLC
 
 
By:
 /s/ A. Robert D. Bailey    
 
 
Name:
 A. Robert D. Bailey    
 
 
Title:
 President            
 
 
ACTAVIS PHARMA, INC.
 
 
By:
 /s/ A. Robert D. Bailey    
 
 
Name:
 A. Robert D. Bailey    
 
 
Title:
 President            
 
 
 
 
ACTAVIS LLC
 
 
By:
 /s/ A. Robert D. Bailey    
 
 
Name:
 A. Robert D. Bailey    
 
 
Title:
 President            
 
 
 
 

[Supply Agreement ]





 
 
ACTAVIS GROUP PTC ehf
 
 
By:
 /s/ Guojon Gustafsson    
 
 
Name:
 Guojon Gustafsson    
 
 
Title:
 Director    
 
 
 
 
By:
 /s/ Hafrun Frioriksdottir    
 
 
Name:
 Hafrun Frioriksdottir    
 
 
Title:
 Director    
 
 
 
 
By:
 /s/ Daniel Motto    
 
 
Name:
 Daniel Motto    
 
 
Title:
 Director                
 
 
BREATH LTD.
By:
 /s/ Sara Vincent    
 
 
Name:
 Sara Vincent    
 
 
Title:
 Director                
 
 
IMPAX LABORATORIES, INC.
 
 
By
 /s/ G. Frederick Wilkinson    
 
 
Name
 G. Frederick Wilkinson    
 
 
Title
 President, Chief Executive Officer


[Supply Agreement ]





Schedule 1.1 – Specifications
[****]
[*****]


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.

[*****] = Fourteen pages of confidential information, marked by brackets, have been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




Schedule 3.2(d) - Initial Firm Order
Initial Order Quantity
Product Description
PO Quantity
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.





Schedule 3.2(f) - Certain Supply Products
Product Description
Seller Label
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]





[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.





Schedule 4.1(a) - Minimum Shelf Life
[****]


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.





Schedule 6.1 - Transfer Prices and Batch Quantities
SKU
Brand Name
CPU ($)
Supply Site of Initial Order
Batch Size
Supply Site of Remaining Tech-transfer Period
Batch Size
Status
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
[****]
 
[****]
[****]
*Estimate to updated upon launch















1 [****].

[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.




AMENDMENT NO. 1
TO THE
SUPPLY AGREEMENT
THIS AMENDMENT NO. 1 TO THE SUPPLY AGREEMENT (this “ Amendment ”) is dated as of June 30, 2016, by and among Impax Laboratories, Inc., a Delaware corporation (“ Buyer ”), Actavis Elizabeth LLC, a Delaware limited liability company (“ Actavis Elizabeth ”), Actavis Group PTC Ehf., an Iceland einkahlutafelag (“ Actavis PTC ”), Actavis Holdco US, Inc., a Delaware corporation (“ Actavis Holdco ”), Actavis LLC, a Delaware limited liability company (“ Actavis LLC ”), Actavis Mid Atlantic LLC, a Delaware limited liability company (“ Actavis Mid Atlantic ”), Actavis Pharma, Inc., a Delaware corporation (“ Actavis Pharma ”), Actavis South Atlantic LLC, a Delaware limited liability company (“ Actavis South Atlantic ”), Andrx LLC, a Delaware limited liability company (“ Andrx ”), Breath Ltd., a United Kingdom private limited company (“ Breath ”), The Rugby Group, Inc., a New York corporation (“ Rugby ”), and Watson Laboratories, Inc., a Nevada corporation (“ Watson ” and, together with Actavis Elizabeth, Actavis PTC, Actavis Holdco, Actavis LLC, Actavis Mid Atlantic, Actavis Pharma, Actavis South Atlantic, Andrx, Breath and Rugby, each a “ Manufacture r” and, collectively, the “ Manufacturers ”).
WITNESSETH:
WHEREAS, Buyer and the Manufacturers executed that certain Supply Agreement, dated June 20, 2016 (as amended, restated, waived or otherwise modified, the “ Supply Agreement ”); and
WHEREAS, the Parties have agreed to amend certain terms of the Supply Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. Definitions . Any capitalized term used in this Amendment shall have the meaning designated for the capitalized term in the Supply Agreement unless otherwise defined in this Amendment. The term “Supply Agreement” used in the Supply Agreement shall hereafter refer to the Supply Agreement, as amended by this Amendment.
2.      Amendment of the Supply Agreement . The Supply Agreement is hereby amended as follows (with deleted text shown as stricken and new text shown as double underlined):
(a)    The following terms are hereby added to Section 1.1 of the Supply Agreement:
““ Cure Period ” means [****] following Manufacturer’s receipt of notice from Buyer of a Supply Failure.”


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.


““ Customer ” means any third party who purchases the Supply Product from the Buyer pursuant to a written agreement between the Buyer and such third party.”
““ Customer Penalties ” means the aggregate penalties the Buyer incurs from its Customers, directly related to actual worth of the quantities of Supply Products subject to the applicable Supply Failure (which quantities shall not exceed [****] supply of the applicable Supply Products) as evidenced by written records, as a result of the Manufacturer’s Supply Failure, which amount generally represents [****].”
Wholesale Acquisition Cost ” means, with respect to a Supply Product, [****].”
(b)    Section 7.2(a) of the Supply Agreement is hereby amended in its entirety to read as follows:
“(a) [reserved]”
(c)    Section 7.2(b) of the Supply Agreement is hereby amended in its entirety to read as follows:
“(b) any Manufacturer, on the one hand, or the Buyer, on the other hand, fails to cure any non-compliance with any of the terms and conditions hereof within the time period specified in any prior written notice (which will be at least [****]) delivered to the non-compliant Party by another Party; provided ; however , that the Manufacturers shall be permitted to terminate under this Section 7.2(b) [****] prior written notice to the FTC only for the Buyer’s failure to pay amounts due to the Manufacturers pursuant to this Supply Agreement and not disputed in good faith by Buyer (it being understood that any amounts due for Supply Product rejected pursuant to Section 5.3 shall be deemed to be disputed in good faith) unless the FTC Staff objects to such termination in writing to the Manufacturer within [****] of the receipt of such notice to the FTC, in which case Manufacturer shall not be permitted to terminate and shall continue to supply under the terms and conditions hereof, but Manufacturer may require the Buyer to place any disputed amounts due into an escrow account until such time as an agreement over these amounts between the Manufacturer and the Buyer is reached or adjudicated ; or”
(d)    Section 10.5 of the Supply Agreement is hereby amended and restated in its entirety to read as follows:
“(a)    In no event shall any Party be liable by reason of any breach of any representation, warranty, condition or other term of this Supply Agreement or any duty of common law, for any consequential, special, indirect, or incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise), and all Parties agree that they shall not make any such claim; provided, however, that the foregoing does not limit any of the obligations or liability of (i) any Party or its Affiliates under Sections 10.1 and 10.2 with respect to (1) claims for


[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.


indemnity of unrelated third parties, (2) liability arising from fraud of a Party or its Affiliates and (3) with respect to Manufacturer’s breach of its obligations pursuant to Section 3.2 and Section 5.3, liability arising from fraud, intentional breach or willful misconduct of a Party or its Affiliates or (ii) a Manufacturer for a Supply Failure due to the gross negligence of such Manufacturer ; provided however, solely with respect to clause (ii) that Manufacturer shall only be subject to liability for consequential, special, indirect or incidental or punitive loss or damage where (A) the Supply Failure is the result of Manufacturer’s fraud, willful misconduct, or gross negligence; or (B) the Supply Failure is the result of the Manufacturer’s negligence and Manufacturer has not used its commercially reasonable best efforts to cure the Supply Failure during the Cure Period; provided further that in no event shall Manufacturer be liable with respect to any customer penalties due to any such Supply Failure under (A) or (B), above, other than the Customer Penalties .
(b)    Notwithstanding any other provision of this Supply Agreement, in the event that the Buyer asserts or claims that any Manufacturer has breached any of its obligations hereunder or that any Manufacturer is liable pursuant to Section 10.1, such Manufacturer’s maximum liability under or in connection with (i)(A) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted prior to [****] shall be limited to [****] and (ii) (B) any such claim herein, together with any such claim against any other Manufacturer pursuant to this Supply Agreement or under the Other Supply Agreement, asserted on or following [****] shall be limited to [****]; and (ii) any reimbursement of Customer Penalties in accordance with the terms herein shall not exceed [****] for all Supply Products supplied by the Manufacturer under this Supply Agreement and the Other Supply Agreements .”
3.     Miscellaneous .
(a)     Effectiveness of Amendment . This Amendment shall become effective upon the date hereof. In the event of any inconsistency or conflict between the Supply Agreement and this Amendment, the terms, conditions and provisions of this Amendment shall govern and control.
(b)     General Provisions . Article XII of the Supply Agreement shall apply to this Amendment, mutatis mutandis .
* * * * * *



[****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions.



IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties hereto effective as of the date first above written.

WATSON LABORATORIES, INC.
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President    
ACTAVIS HOLDCO US, INC.
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President    
THE RUGBY GROUP, INC.
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            
ANDRX LLC
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            
ACTAVIS ELIZABETH LLC
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            




[Signature Page to Impax-Allergan Supply Agreement Amendment]





ACTAVIS SOUTH ATLANTIC LLC
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            
ACTAVIS MID ATLANTIC LLC
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            
ACTAVIS PHARMA, INC.
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            

ACTAVIS LLC
By: /s/ A. Robert D. Bailey    
Name: A. Robert D. Bailey    
Title: President            

ACTAVIS GROUP PTC ehf
By: /s/ Guojon Gustafsson    
Name: Guojon Gustafsson    
Title: Director    



[Signature Page to Impax-Allergan Supply Agreement Amendment]




By: /s/ Hafrun Frioriksdottir    
Name: Hafrun Frioriksdottir    
Title: Director    


By:
/s/ Daniel Motto    
Name: Daniel Motto    
Title: Director                
BREATH LTD.
By: /s/ Sara Vincent    
Name: Sara Vincent    
Title: Director                

IMPAX LABORATORIES, INC.
By: /s/ G. Frederick Wilkinson    
Name: G. Frederick Wilkinson    
Title: President, Chief Executive Officer






[Signature Page to Impax-Allergan Supply Agreement Amendment]



EXHIBIT 31.1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, J. Kevin Buchi, certify:
 
 
1.
I have reviewed this Amendment No. 1 to the Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2016 of Impax Laboratories, Inc.; and
 
 
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
 
 
 
 
January 6, 2017
By:
/s/ J. Kevin Buchi
 
 
J. Kevin Buchi
 
 
Interim President and Chief Executive Officer








EXHIBIT 31.2
 
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
 
I, Bryan M. Reasons, certify:
 
 
1.
I have reviewed this Amendment No. 1 to the Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2016 of Impax Laboratories, Inc.; and
 
 
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
 
 
 
 
January 6, 2017
By:
/s/ Bryan M. Reasons
 
 
Bryan M. Reasons
 
 
Chief Financial Officer and Senior Vice President, Finance