Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-Q

 

 

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 31, 2014

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 000-55075

 

 

ACTAVIS plc

(Exact name of registrant as specified in its charter)

 

 

 

Ireland   98-1114402

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

1 Grand Canal Square,

Docklands Dublin 2, Ireland

(Address of principal executive offices)

(862) 261-7000

(Registrant’s telephone number, including area code)

 

 

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     x     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 (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     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   x    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 Act).    Yes   ¨     No   x

Number of shares of Registrant’s Ordinary Shares outstanding on April 18, 2014: 174,446,635

 

 

 


Table of Contents

ACTAVIS PLC

TABLE OF CONTENTS

FORM 10-Q FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2014

 

         PAGE  
PART I. FINANCIAL INFORMATION   
Item 1.  

Consolidated Financial Statements (unaudited)

     1   
 

Consolidated Balance Sheets as of March 31, 2014 and December 31, 2013

     1   
 

Consolidated Statements of Operations for the quarters ended March 31, 2014 and March 31, 2013

     2   
 

Consolidated Statements of Comprehensive Income / (Loss) for the quarters ended March 31, 2014 and March  31, 2013

     3   
 

Consolidated Statements of Cash Flows for the quarters ended March 31, 2014 and March 31, 2013

     4   
 

Notes to Consolidated Financial Statements

     5   
Item 2.  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     47   
Item 3.  

Quantitative and Qualitative Disclosures About Market Risk

     59   
Item 4.  

Controls and Procedures

     60   
PART II. OTHER INFORMATION   
Item 1.  

Legal Proceedings

     61   
Item 1A.  

Risk Factors

     61   
Item 2.  

Unregistered Sales of Equity Securities and Use of Proceeds

     61   
Item 6.  

Exhibits

     61   
 

Signatures

     62   


Table of Contents

PART I. FINANCIAL INFORMATION

 

ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS

ACTAVIS PLC

CONSOLIDATED BALANCE SHEETS

(Unaudited; in millions, except par value and share data)

 

     March 31,
2014
    December 31,
2013
 
ASSETS     

Current assets:

    

Cash and cash equivalents

   $ 337.7      $ 329.0   

Marketable securities

     2.5        2.5   

Accounts receivable, net

     1,508.7        1,404.9   

Inventories, net

     1,726.3        1,786.3   

Prepaid expenses and other current assets

     393.4        409.2   

Current assets held for sale

     294.9        271.0   

Deferred tax assets

     277.2        231.8   
  

 

 

   

 

 

 

Total current assets

     4,540.7        4,434.7   

Property, plant and equipment, net

     1,581.3        1,616.8   

Investments and other assets

     145.2        137.5   

Deferred tax assets

     105.1        104.8   

Product rights and other intangibles

     7,866.8        8,234.5   

Goodwill

     8,164.8        8,197.6   
  

 

 

   

 

 

 

Total assets

   $ 22,403.9      $ 22,725.9   
  

 

 

   

 

 

 
LIABILITIES AND EQUITY     

Current liabilities:

    

Accounts payable and accrued expenses

   $ 2,323.8      $ 2,343.2   

Income taxes payable

     138.9        96.6   

Current portion of long-term debt and capital leases

     268.3        534.6   

Deferred revenue

     35.8        38.8   

Current liabilities held for sale

     204.7        246.6   

Deferred tax liabilities

     30.6        35.1   
  

 

 

   

 

 

 

Total current liabilities

     3,002.1        3,294.9   

Long-term debt and capital leases

     8,452.2        8,517.4   

Deferred revenue

     37.9        40.1   

Other long-term liabilities

     346.0        326.2   

Other taxes payable

     191.4        187.3   

Deferred tax liabilities

     745.7        822.9   
  

 

 

   

 

 

 

Total liabilities

     12,775.3        13,188.8   
  

 

 

   

 

 

 

Commitments and contingencies

    

Equity:

    

Ordinary shares; $0.0001 par value per share; 1,000.0 million shares authorized, 174.7 million and 174.2 million shares issued and 174.4 million and 174.2 million shares outstanding, respectively

     —          —     

Additional paid-in capital

     8,072.6        8,012.6   

Retained earnings

     1,528.8        1,432.3   

Accumulated other comprehensive income

     83.7        90.5   

Treasury stock, at cost; 291.3 thousand and 18.3 thousand shares held, respectively

     (60.4     (3.3
  

 

 

   

 

 

 

Total shareholders’ equity

     9,624.7        9,532.1   

Noncontrolling interest

     3.9        5.0   
  

 

 

   

 

 

 

Total equity

     9,628.6        9,537.1   
  

 

 

   

 

 

 

Total liabilities and equity

   $ 22,403.9      $ 22,725.9   
  

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

1


Table of Contents

ACTAVIS PLC

CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited; in millions, except per share amounts)

 

     Three Months Ended
March 31,
 
     2014     2013  

Net revenues

   $ 2,655.1      $ 1,895.5   
  

 

 

   

 

 

 

Operating expenses:

    

Cost of sales (excludes amortization and impairment of acquired intangibles including product rights)

     1,293.0        1,086.6   

Research and development

     171.5        132.1   

Selling and marketing

     283.1        227.2   

General and administrative

     275.8        185.8   

Amortization

     424.2        158.4   

Loss on asset sales, impairments, and contingent consideration adjustment, net

     (0.4     148.0   
  

 

 

   

 

 

 

Total operating expenses

     2,447.2        1,938.1   
  

 

 

   

 

 

 

Operating income / (loss)

     207.9        (42.6
  

 

 

   

 

 

 

Non-Operating income (expense):

    

Interest income

     1.0        0.8   

Interest expense

     (72.8     (54.1

Other income (expense), net

     5.0        20.6   
  

 

 

   

 

 

 

Total other income (expense), net

     (66.8     (32.7
  

 

 

   

 

 

 

Income / (loss) before income taxes and noncontrolling interest

     141.1        (75.3

Provision for income taxes

     44.4        28.2   
  

 

 

   

 

 

 

Net income / (loss)

     96.7        (103.5

(Income) / loss attributable to noncontrolling interest

     (0.2     0.7   
  

 

 

   

 

 

 

Net income / (loss) attributable to common shareholders

   $ 96.5      $ (102.8
  

 

 

   

 

 

 

Earnings / (loss) per share attributable to common shareholders:

    

Basic

   $ 0.56      $ (0.79
  

 

 

   

 

 

 

Diluted

   $ 0.55      $ (0.79
  

 

 

   

 

 

 

Weighted average shares outstanding:

    

Basic

     173.8        130.2   
  

 

 

   

 

 

 

Diluted

     174.9        130.2   
  

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

2


Table of Contents

ACTAVIS PLC

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME / (LOSS)

(Unaudited; in millions)

 

     Three Months
Ended March 31,
 
     2014     2013  

Net income / (loss)

   $ 96.7      $ (103.5

Other comprehensive (loss)

    

Foreign currency translation (losses)

     (7.5     (128.5

Unrealized gains, net of tax

     0.7        —     

Reclassification for gains included in net income, net of tax

     —          —     
  

 

 

   

 

 

 

Total other comprehensive (loss), net of tax

     (6.8     (128.5
  

 

 

   

 

 

 

Comprehensive income / (loss)

     89.9        (232.0

Comprehensive (income) / loss attributable to noncontrolling interest

     (0.2     0.7   
  

 

 

   

 

 

 

Comprehensive income / (loss) attributable to common shareholders

   $ 89.7      $ (231.3
  

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

3


Table of Contents

ACTAVIS PLC

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited; in millions)

 

     Three Months
Ended March 31,
 
     2014     2013  

Cash Flows From Operating Activities:

    

Net income / (loss)

   $ 96.7      $ (103.5
  

 

 

   

 

 

 

Reconciliation to net cash provided by operating activities:

    

Depreciation

     55.6        47.4   

Amortization

     424.2        158.4   

Provision for inventory reserve

     38.1        3.5   

Share-based compensation

     16.7        12.5   

Deferred income tax benefit

     (149.9     (118.0

(Earnings) on equity method investments

     (1.1     (0.9

Gain on sale of securities and assets, net

     (4.3     (2.3

Amortization of inventory step up

     124.6        93.5   

Amortization of deferred financing costs

     11.1        1.9   

(Decrease)/increase in allowance for doubtful accounts

     (0.3     3.8   

Accretion of contingent payment consideration

     4.0        0.4   

Contingent consideration fair value adjustment

     (11.0     150.3   

Excess tax benefit from stock-based compensation

     (36.8     (11.9

Other, net

     (5.6     0.7   

Changes in assets and liabilities (net of effects of acquisitions):

    

Decrease / (increase) in accounts receivable, net

     (113.6     66.7   

Decrease / (increase) in inventories

     (108.9     (122.6

Decrease / (increase) in prepaid expenses and other current assets

     21.8        50.1   

Increase / (decrease) in accounts payable and accrued expenses

     (22.6     (123.3

Increase / (decrease) in deferred revenue

     (5.2     29.1   

Increase / (decrease) in income and other taxes payable

     113.1        84.3   

Increase / (decrease) in other assets and liabilities

     (7.0     (1.5
  

 

 

   

 

 

 

Total adjustments

     342.9        322.1   
  

 

 

   

 

 

 

Net cash provided by operating activities

     439.6        218.6   
  

 

 

   

 

 

 

Cash Flows From Investing Activities:

    

Additions to property, plant and equipment

     (42.5     (29.2

Additions to product rights and other intangibles

     —          (2.2

Proceeds from the sale of investments

     15.0        —     

Proceeds from sales of property, plant and equipment

     3.4        1.1   

Acquisition of business, net of cash acquired

     —          (141.3
  

 

 

   

 

 

 

Net cash (used in) investing activities

     (24.1     (171.6
  

 

 

   

 

 

 

Cash Flows From Financing Activities:

    

Proceeds from borrowings on revolving credit facility

     —          75.0   

Debt issuance and other financing costs

     (20.3     —     

Payments on debt, including capital lease obligations

     (326.1     (97.1

Proceeds from stock plans

     6.4        3.2   

Payments of contingent consideration

     (7.8     (4.4

Repurchase of ordinary shares

     (57.0     (21.9

Acquisition of noncontrolling interest

     —          (9.2

Excess tax benefit from stock-based compensation

     36.8        11.9   
  

 

 

   

 

 

 

Net cash (used in) financing activities

     (368.0     (42.5
  

 

 

   

 

 

 

Effect of currency exchange rate changes on cash and cash equivalents

     (1.9     4.9   

Less: Movement in cash held for sale

     (36.9     —     
  

 

 

   

 

 

 

Net increase in cash and cash equivalents

     8.7        9.4   

Cash and cash equivalents at beginning of period

     329.0        319.0   
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 337.7      $ 328.4   
  

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

4


Table of Contents

ACTAVIS PLC

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS

NOTE 1 — General

Actavis plc is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic, branded generic, brand name (“brand” or “branded”), biosimilar and over-the-counter (“OTC”) pharmaceutical products. The Company also develops and out-licenses generic pharmaceutical products primarily in Europe through our Medis third-party business. The Company operates manufacturing, distribution, research and development (“R&D”) and administrative facilities in many of the world’s established and growing international markets, including the United States of America (“U.S.”), Canada and Puerto Rico (together “North America”), and its key international markets around the world (“International”).

The accompanying consolidated financial statements should be read in conjunction with the Company’s annual report on Form 10-K for the year ended December 31, 2013 (“Annual Report”). Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with United States generally accepted accounting principles (“GAAP”) have been condensed or omitted from the accompanying consolidated financial statements. The accompanying year end consolidated balance sheet was derived from the audited financial statements included in the Annual Report. The accompanying interim financial statements are unaudited, and reflect all adjustments which are, in the opinion of management, necessary for a fair statement of the Company’s consolidated financial position, results of operations, comprehensive income / (loss) and cash flows for the periods presented. Unless otherwise noted, all such adjustments are of a normal, recurring nature. All intercompany transactions and balances have been eliminated in consolidation. The Company’s results of operations, comprehensive income / (loss) and cash flows for the interim periods are not necessarily indicative of the results of operations, comprehensive income / (loss) and cash flows that it may achieve in future periods.

The Company has made certain reclassifications to prior period information to conform to the current period presentation including (i) changes to the definition and reporting of our operating segments and (ii) the reclassification of contingent consideration accretion expense from interest expense into operating expenses.

In prior periods, the Company’s consolidated financial statements presented the accounts of Actavis, Inc. On May 16, 2013, Actavis plc was incorporated in Ireland as a private limited company and re-registered effective September 18, 2013 as a public limited company. It was established for the purpose of facilitating the business combination between Actavis, Inc. and Warner Chilcott plc (“Warner Chilcott”). On October 1, 2013, pursuant to the transaction agreement dated May 19, 2013 among Actavis, Inc., Warner Chilcott, the Company, Actavis Ireland Holding Limited, Actavis W.C. Holding LLC (now known as Actavis W.C. Holding Inc.) and Actavis W.C. Holding 2 LLC (now known as Actavis W.C. Holding 2 Inc.) (“MergerSub”), (i) the Company acquired Warner Chilcott (the “Warner Chilcott Acquisition”) pursuant to a scheme of arrangement under Section 201, and a capital reduction under Sections 72 and 74, of the Irish Companies Act of 1963 where each Warner Chilcott ordinary share was converted into 0.160 of a Company ordinary share (the “Company Ordinary Shares”), or $5,833.9 million in equity consideration, and (ii) MergerSub merged with and into Actavis, Inc., with Actavis, Inc. as the surviving corporation in the merger (the “Merger” and, together with the Warner Chilcott Acquisition, the “Transactions”).

References throughout to “ordinary shares” refer to Actavis Inc.’s Class A common shares, par value $0.0033 per share, prior to the consummation of the Transactions and to the Company’s ordinary shares, par value $0.0001 per share, since the consummation of the Transactions.

References throughout to “we,” “our,” “us,” the “Company” or “Actavis” refer to financial information and transactions of Watson Pharmaceuticals, Inc. prior to January 23, 2013, Actavis, Inc. from January 23, 2013 until October 1, 2013 and Actavis plc on and subsequent to October 1, 2013.

NOTE 2 — Summary of Significant Accounting Policies

The following are interim updates to certain of the policies described in “Note 3” of the notes to the Company’s audited consolidated financial statements for the year ended December 31, 2013 included in the Annual Report.

 

5


Table of Contents

Revenue Recognition Including Multiple-Element Arrangements

General

Revenue from product sales is recognized when title and risk of loss to the product transfers to the customer, which is based on the transaction shipping terms. Recognition of revenue also requires reasonable assurance of collection of sales proceeds, the seller’s price to the buyer to be fixed or determinable and the completion of all performance obligations. The Company warrants products against defects and for specific quality standards, permitting the return of products under certain circumstances. Product sales are recorded net of all sales-related deductions including, but not limited to: chargebacks, trade discounts, billback adjustments, sales returns and allowances, commercial and government rebates, customer loyalty programs and fee for service arrangements with certain distributors, which we refer to in the aggregate as “SRA” allowances.

Royalty and commission revenue is recognized as a component of net revenues in accordance with the terms of their respective contractual agreements when collectability is reasonably assured and revenue can be reasonably measured.

Multiple-Element Arrangements

The Company identifies each discrete deliverable included in a multiple-element arrangement and identifies which of those deliverables have standalone value to the customer under Financial Standards Accounting Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 605-25 “Revenue Recognition — Multiple-Element Arrangements” (“ASC 605-25”) and Accounting Standards Update (“ASU”) 2009-13 “Revenue Recognition — Multiple-Deliverable Revenue” (“ASU No. 2009-13”). The Company allocates arrangement consideration to the deliverables based on the appropriate selling price using the hierarchy outlined in ASC 605-25, as amended by ASU No. 2009-13. The selling price used for each deliverable is based on vendor-specific objective evidence (“VSOE”) if available, third-party evidence (“TPE”) if VSOE is not available, or best estimated selling price (“BESP”) if neither VSOE nor TPE is available. BESP is determined in a manner consistent with that used to establish the price to sell the deliverable on a standalone basis. Revenue is recognized for each unit of accounting based on the relevant authoritative literature for that deliverable.

Contingency-Adjusted Performance Model

Revenues recognized from research, development and licensing agreements (including milestone receipts) are recorded on the “contingency-adjusted performance model” which requires deferral of revenue until such time as contract milestone requirements, as specified in the individual agreements, have been met. Under this model, revenue related to each payment is recognized over the entire contract performance period, starting with the contract’s commencement, but not prior to earning and/or receiving the milestone amount (i.e., removal of any contingency). The amount of revenue recognized is based on the ratio of costs incurred to date to total estimated cost to be incurred. In certain circumstances, it may be appropriate to recognize consideration that is contingent upon achievement of a substantive milestone in its entirety in the period in which the milestone is achieved. In order to recognize milestone consideration as revenue in the period in which the milestone is achieved, there needs to be “substantive” certainty that the milestone will be achieved, relate solely to past performance and the consideration needs to be commensurate with the Company’s performance. Factors the Company considers in determining whether a milestone is substantive at the inception of an arrangement include: whether substantive effort will be required to achieve the milestone; what labor, skill, other costs will be incurred to achieve the milestone; how certain the achievement of the milestone is; whether a reasonable amount of time will elapse between any upfront payment and the first milestone as well as between each successive milestone; and, whether the milestone is nonrefundable or contains clawback provisions.

Provisions for SRAs

As is customary in the pharmaceutical industry, our gross product sales are subject to a variety of deductions in arriving at reported net product sales. When the Company recognizes revenue from the sale of products, an estimate of SRA is recorded which reduces product sales. Accounts receivable and/or accrued liabilities are also reduced and/or increased by the SRA amount. These provisions are estimated based on historical payment experience, historical relationship of the deductions to gross product revenues, government regulations, estimated utilization or redemption rates, estimated customer inventory levels and current contract sales terms with direct and indirect customers. The estimation process used to determine our SRA provision has been applied on a consistent basis and no material revenue adjustments have been necessary to increase or decrease our reserves for SRA as a result of a significant change in underlying estimates. The Company uses a variety of methods to assess the adequacy of the SRA reserves to ensure that our financial statements are fairly stated. This includes periodic reviews of customer inventory data, customer contract programs and product pricing trends to analyze and validate the SRA reserves.

 

6


Table of Contents

Chargebacks  — A chargeback represents an amount payable in the future to a wholesaler for the difference between the invoice price paid by our wholesale customer for a particular product and the negotiated contract price that the wholesaler’s customer pays for that product. The chargeback provision and related reserve varies with changes in product mix, changes in customer pricing and changes to estimated wholesaler inventories. The provision for chargebacks also takes into account an estimate of the expected wholesaler sell-through levels to indirect customers at contract prices. The Company validates the chargeback accrual quarterly through a review of the inventory reports obtained from our largest wholesale customers. This customer inventory information is used to verify the estimated liability for future chargeback claims based on historical chargeback and contract rates. These large wholesalers represent the vast majority of the Company’s chargeback payments. We continually monitor current pricing trends and wholesaler inventory levels to ensure the liability for future chargebacks is fairly stated.

Rebates  — Rebates include volume related incentives to direct and indirect customers, third party managed care and Medicare Part D rebates and Medicaid and other government rebates. Rebates are accrued for an estimate of claims to be paid for product sold into trade by the Company. Volume rebates are generally offered to customers as an incentive to use the Company’s products and to encourage greater product sales. These rebate programs include contracted rebates based on customers’ purchases made during an applicable monthly, quarterly or annual period. The provision for third party rebates is estimated based on our customers’ contracted rebate programs and the Company’s historical experience of rebates paid. Any significant changes to our customer rebate programs are considered in establishing the provision for rebates. The provisions for government rebates are based, in part, upon historical experience of claims submitted by the various states / authorities, contractual terms, as well as government regulations. We monitor legislative changes to determine what impact such legislation may have on our provision.

Cash Discounts  — Cash discounts are provided to customers that pay within a specific period. The provision for cash discounts is estimated based upon invoice billings, utilizing historical customer payment experience. The Company’s experience of payment history is fairly consistent and most customer payments qualify for the cash discount. Accordingly, our reserve for cash discounts is readily determinable.

Returns and Other Allowances  — The Company’s provision for returns and other allowances include returns, pricing adjustments, promotional allowances, loyalty cards and billback adjustments.

Consistent with industry practice, the Company maintains a returns policy that allows customers to return product for a credit. In accordance with the Company’s return goods policy, credits for customer returns of products are applied against outstanding account activity or are settled in cash. Product exchanges are not permitted. Customer returns of product are generally not resalable. The Company’s estimate of the provision for returns is based upon historical experience and current trends of actual customer returns. Additionally, we consider other factors when estimating the current period returns provision, including levels of inventory in the distribution channel, as well as significant market changes which may impact future expected returns, and may cause adjustments to the Company’s current period provision for returns when it appears product returns may differ from original estimates.

Pricing adjustments, which includes shelf stock adjustments, are credits issued to reflect price decreases in selling prices charged to the Company’s direct customers. Shelf stock adjustments are based upon the amount of product our customers have in their inventory at the time of an agreed-upon price reduction. The provision for shelf stock adjustments is based upon specific terms with the Company’s direct customers and includes estimates of existing customer inventory levels based upon their historical purchasing patterns. We regularly monitor all price changes to evaluate the Company’s reserve balances. The adequacy of these reserves is readily determinable as pricing adjustments and shelf stock adjustments are negotiated and settled on a customer-by-customer basis.

Promotional allowances are credits that are issued in connection with a product launch or as an incentive for customers to carry our product. The Company establishes a reserve for promotional allowances based upon contractual terms.

Billback adjustments are credits that are issued to certain customers who purchase directly from us as well as indirectly through a wholesaler. These credits are issued in the event there is a difference between the customer’s direct and indirect contract price. The provision for billbacks is estimated based upon historical purchasing patterns of qualified customers who purchase product directly from us and supplement their purchases indirectly through our wholesale customers.

Loyalty cards are incentives for customers to continue to use marketed products. These programs allow the end user a discount per prescription and is accrued based on historical experience, contract terms and the volume of product and cards in the distribution channel.

        Net revenues and accounts receivable balances in the Company’s consolidated financial statements are presented net of SRA estimates. Accounts receivable are presented net of SRA balances of $1,210.9 million and $1,254.8 million at March 31, 2014 and December 31, 2013, respectively. SRA balances in accounts payable and accrued expenses were $642.6 million and $719.0 million at March 31, 2014 and December 31, 2013, respectively. The provisions recorded to reduce gross sales to net sales were $1,732.1 million, or 40.0% of gross product sales and $1,335.1 million, or 41.6% of gross product sales in the quarters ended March 31, 2014 and 2013, respectively. The decrease in the SRA deductions as a percentage of gross product sales primarily relates to the increase in branded sales versus the prior year period, which generally have lower rebate percentages. During the quarter ended March 31, 2014, the Company lowered SRA balances relating to the valuation of assets and liabilities as part of the Warner Chilcott Acquisition measurement period adjustment by $56.6 million.

 

7


Table of Contents

Litigation and Contingencies

The Company is involved in various legal proceedings in the normal course of its business, including product liability litigation, intellectual property litigation, employment litigation and other litigation. Additionally, the Company, in consultation with its counsel, assesses the need to record a liability for contingencies on a case-by-case basis in accordance with ASC Topic 450 “Contingencies” (“ASC 450”). Accruals are recorded when the Company determines that a loss related to a matter is both probable and reasonably estimable. These accruals are adjusted periodically as assessment efforts progress or as additional information becomes available. Acquired contingencies in business combinations are recorded at fair value to the extent determinable, otherwise in accordance ASC 450. Refer to “NOTE 17 — Commitments and Contingencies” for more information.

R&D Activities

R&D activities are expensed as incurred and consist of self-funded R&D costs, the costs associated with work performed under collaborative R&D agreements, regulatory fees, and milestone payments, if any. R&D expenses include direct and allocated expenses. On December 19, 2011, the Company entered into a collaboration agreement with Amgen, Inc. (“Amgen”) to develop and commercialize, on a worldwide basis, several oncology antibody biosimilar medicines. Amgen has assumed primary responsibility for developing, manufacturing and initially commercializing the oncology antibody products. As of March 31, 2014, the Company’s maximum potential remaining co-development obligation under this agreement was $297.3 million.

Earnings Per Share (“EPS”)

The Company accounts for EPS in accordance with ASC Topic 260, “Earnings Per Share” (“ASC 260”) and related guidance, which requires two calculations of EPS to be disclosed: basic and diluted. Basic EPS is computed by dividing net income / (loss) by the weighted average common shares outstanding during a period. Diluted EPS is based on the treasury stock method and includes the effect from potential issuance of ordinary shares, such as shares issuable pursuant to the exercise of stock options and restricted stock units. Ordinary share equivalents have been excluded where their inclusion would be anti-dilutive.

A reconciliation of the numerators and denominators of basic and diluted EPS consisted of the following (in millions, except per share amounts):

 

     Quarter
Ended
March 31,
2014
     Quarter
Ended
March 31,
2013
 

EPS — basic

     

Net income / (loss) attributable to common shareholders

   $ 96.5       $ (102.8
  

 

 

    

 

 

 

Basic weighted average ordinary shares outstanding

     173.8         130.2   
  

 

 

    

 

 

 

EPS — basic

   $ 0.56       $ (0.79
  

 

 

    

 

 

 

EPS — diluted

     

Net income / (loss) attributable to common shareholders

   $ 96.5       $ (102.8
  

 

 

    

 

 

 

Basic weighted average ordinary shares outstanding

     173.8         130.2   

Effect of dilutive securities:

     

Dilutive stock awards

     1.1         —     
  

 

 

    

 

 

 

Diluted weighted average ordinary shares outstanding

     174.9         130.2   
  

 

 

    

 

 

 

EPS — diluted

   $ 0.55       $ (0.79
  

 

 

    

 

 

 

Stock awards to purchase 2.2 million common shares for the quarter March 31, 2013, were outstanding, but not included in the computation of diluted EPS, because the awards were anti-dilutive. There were no anti-dilutive shares for the quarter ended March 31, 2014.

Restructuring Costs

The Company records liabilities for costs associated with exit or disposal activities in the period in which the liability is incurred. In accordance with existing benefit arrangements, employee severance costs are accrued when the restructuring actions are probable and estimable. Costs for one-time termination benefits in which the employee is required to render service until termination in order to receive the benefits are recognized ratably over the future service period. Refer to “NOTE 16 — Business Restructuring Charges” for more information.

 

8


Table of Contents

NOTE 3 — Acquisitions and Other Agreements

The following are interim updates to certain acquisition and other agreements described in “Note 4” of the notes to the Company’s audited consolidated financial statements for the year ended December 31, 2013 included in the Annual Report, which are expected to, or have had, a material impact on the financial results of the Company as of and for the periods ended March 31, 2014 and 2013.

Forest Laboratories

On February 17, 2014, the Company entered into a Merger Agreement (the “Forest Merger Agreement”) by and among the Company, Tango US Holdings Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (“US Holdco”), Tango Merger Sub 1 LLC, a Delaware limited liability company and a direct wholly owned subsidiary of US Holdco (“Merger Sub 1”), Tango Merger Sub 2 LLC, a Delaware limited liability company and a direct wholly owned subsidiary of US Holdco (“Merger Sub 2” and, together with Merger Sub 1, the “Merger Subs”) and Forest Laboratories, Inc., a Delaware corporation (“Forest”).

Forest is a leading, fully integrated, specialty pharmaceutical company largely focused on the United States market. Forest markets a portfolio of branded drug products and develops new medicines to treat patients suffering from diseases principally in the following therapeutic areas: central nervous system, cardiovascular, gastrointestinal, respiratory, anti-infective, and cystic fibrosis.

Under the terms of the Forest Merger Agreement, the acquisition of Forest will be accomplished through a merger of Merger Sub 1 with and into Forest (“Merger 1”), with Forest being the surviving entity (the “First Surviving Corporation”). Immediately following the consummation of Merger 1, the First Surviving Corporation will merge with and into Merger Sub 2 (“Merger 2” and, together with Merger 1, the “Mergers”), with Merger Sub 2 being the surviving entity.

At the effective time of Merger 1, each share of Forest’s common stock issued and outstanding immediately prior to Merger 1 (other than dissenting shares) will be converted into the right to receive, at the election of the holder of such share of Forest common stock, (i) a combination of $26.04 in cash, plus .3306 Company shares (the “Mixed Election”), (ii) $86.81 in cash (the “Cash Election”) or (iii) .4723 Company shares (the “Stock Election”). The Cash Election and the Stock Election will be subject to proration to ensure that the total amount of cash paid and the total number of Company shares issued to Forest shareholders as a whole are equal to the total amount of cash and number of Company shares that would have been paid and issued if all Forest shareholders received the Mixed Election consideration.

The foregoing description of the Mergers and the Forest Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Form S-4 filed with the Securities and Exchange Commission (“SEC”) on May 2, 2014.

As a result of the transaction, the Company incurred costs of $14.2 million in the three months ended March 31, 2014 and anticipates incurring additional acquisition related costs throughout the remainder of the year ending December 31, 2014.

Metronidazole 1.3% Vaginal Gel

On May 1, 2013, we entered into an agreement to acquire the worldwide rights to Valeant Pharmaceuticals International, Inc.’s (“Valeant”) metronidazole 1.3% vaginal gel antibiotic development product, a topical antibiotic for the treatment of bacterial vaginosis, which is being accounted for as a business combination. Under the terms of the agreement, we acquired the product upon U.S. Food and Drug Administration (“FDA”) approval on March 25, 2014 for acquisition accounting consideration of approximately $62.3 million, which includes the fair value contingent consideration of $50.3 million and upfront and milestone payments of $12.0 million, of which $9.0 million was incurred in the quarter ended March 31, 2014. As a result of this transaction the Company recognized intangible assets and goodwill of $61.8 million and $0.5 million, respectively in the quarter ended March 31, 2014.

Acquisition of Warner Chilcott

On October 1, 2013, the Company completed the Warner Chilcott Acquisition in a stock for stock transaction for a value, including the assumption of debt, of $9.2 billion. Warner Chilcott was a leading specialty pharmaceutical company focused on the women’s healthcare, gastroenterology, urology and dermatology segments of the branded pharmaceuticals market, primarily in North America.

Recognition and Measurement of Assets Acquired and Liabilities Assumed at Fair Value

The Warner Chilcott Acquisition has been accounted for using the acquisition method of accounting. This method requires that assets acquired and liabilities assumed in a business combination be recognized at their fair values as of the acquisition date. During the quarter ended March 31, 2014, the Company received updated information regarding estimated rebates and returns recorded as of the acquisition date. As a result of the updated information received, the Company recorded a measurement period adjustment relating to SRAs which impacted current liabilities, goodwill and deferred taxes by $56.6 million, $36.8 million and $19.8 million, respectively, in the quarter ended March 31, 2014.

 

9


Table of Contents

The following table summarizes the fair values of the assets acquired and liabilities assumed at the acquisition date:

 

(in millions)    Amount  

Cash and cash equivalents

   $ 179.5   

Accounts receivable

     306.1   

Inventories

     532.5   

Other current assets

     83.4   

Property, plant and equipment

     220.0   

Other long-term assets

     1.2   

IPR&D intangible assets

     1,708.0   

Intangible assets

     3,021.0   

Goodwill

     3,956.1   

Current liabilities

     (613.5

Deferred tax liabilities, net

     (60.4

Other long-term liabilities

     (99.6

Outstanding indebtedness

     (3,400.4
  

 

 

 

Net assets acquired

   $ 5,833.9   
  

 

 

 

Consideration

The total consideration for the Warner Chilcott Acquisition of $5,833.9 million is comprised of the equity value of shares that were outstanding and vested prior to October 1, 2013 ($5,761.3 million) and the portion of outstanding equity awards deemed to have been earned as of October 1, 2013 ($72.6 million). The portion deemed not to have been earned ($77.4 million) as of October 1, 2013 will be expensed over the remaining future vesting period, including $5.0 million and $45.4 million relating to Warner Chilcott restructuring charges recognized in the quarter ended March 31, 2014 and the year ended December 31, 2013, respectively.

Inventories

The fair value of inventories acquired included a step-up in the value of inventories of $408.3 million. In the quarter and year ended March 31, 2014 and December 31, 2013, the Company recognized $124.6 million and $173.5 million, respectively, as a component of cost of sales as the inventory acquired on October 1, 2013 was sold to the Company’s customers. Included in finished goods inventory as of March 31, 2014 was $110.4 million relating to the remaining fair value step-up associated with the Warner Chilcott Acquisition.

Unaudited Pro Forma Results of Operations

The following table presents the unaudited pro forma consolidated operating results for the Company, as though the Warner Chilcott Acquisition had occurred as of the beginning of the prior annual reporting period. The unaudited pro forma results reflect certain adjustments related to past operating performance, the impact of the debt assumed, acquisition costs and acquisition accounting adjustments, such as increased depreciation and amortization expense based on the fair valuation of assets acquired and the related tax effects. The pro forma results do not include any anticipated synergies which may be achievable subsequent to the acquisition date. Accordingly, such pro forma amounts are not necessarily indicative of the results that actually would have occurred had the acquisition been completed on the dates indicated, nor are they indicative of the future operating results of the combined company:

 

(in millions; except per share amounts)    Quarter
ended
March 31,
2013
 

Net revenues

   $ 2,481.8   

Net (loss) attributable to common shareholders

   $ (123.1

Earnings per share:

  

Basic

   $ (0.72

Diluted

   $ (0.72

Acquisition-Related Expenses

Included in general and administrative expenses for the quarter ended March 31, 2014 are integration and restructuring charges of $12.4 million, including stock-based compensation of $5.0 million incurred in connection with the Warner Chilcott Acquisition.

 

10


Table of Contents

Acquisition of Uteron Pharma, SA

On January 23, 2013, the Company completed the acquisition of Uteron Pharma, SA for approximately $142.0 million in cash, plus assumption of debt and other liabilities of $7.7 million and up to $155.0 million in potential future milestone payments, of which $43.4 million was recognized on the date of acquisition (the “Uteron Acquisition”). The acquisition expanded the Company’s Specialty Brands’ pipeline of Women’s Health products including two potential near term commercial opportunities in contraception and infertility, and one oral contraceptive project projected to launch by 2018. Several additional products in earlier stages of development were also acquired in the Uteron Acquisition.

Contingent Consideration

Additional consideration is conditionally due to the seller upon the achievement of certain milestones in respect to the development and commercialization of the products as well as reaching certain sales targets. The Company estimated the fair value of the contingent consideration to be $43.4 million using a probability weighting approach that considered the possible outcomes based on assumptions related to the timing and probability of the product launch date, discount rates matched to the timing of first payment, and probability of success rates and discount adjustments on the related cash flows.

Unaudited Pro Forma Results of Operations

Pro forma results of operations have not been presented because the effect of the Uteron Acquisition was not material.

Acquisition of Actavis Group

On October 31, 2012, we completed the acquisition of the Actavis Group for a cash payment of €4,219.7 million, or approximately $5,469.8 million, and contingent consideration of up to 5.5 million newly issued shares of Actavis, Inc. which have since been issued (the “Actavis Group Acquisition”). Actavis Group was a privately held generic pharmaceutical company specializing in the development, manufacture and sale of generic pharmaceuticals.

The Company funded the cash portion of the transaction through a combination of term loan borrowings and senior unsecured notes. For additional information, refer to “Note 10 — Long-Term Debt.”

Inventories

The fair value of inventories acquired included a step-up in the value of inventories of approximately $137.3 million. In the quarter ended March 31, 2013, the Company recognized the remaining $93.5 million as a component of cost of sales as the inventory acquired was sold to the Company’s customers.

Contingent Consideration

At December 31, 2012, the Company estimated the Actavis Group earn-out to be 3.85 million shares, or $329.2 million, which was recognized on the date of acquisition. On March 28, 2013, based on further evaluation, the decision was made to award the remaining 1.65 million contingent shares. Accordingly, during the first quarter of 2013, the Company recorded an expense of $150.3 million for contingent consideration as a result of the decision to award all remaining contingent shares.

Other Transactions

The following transactions are expected to, or have had, a material impact on the financial results of the Company as of and for the periods ended March 31, 2014 and 2013.

Property, Plant and Equipment Assets Held for Sale

During the quarter ended March 31, 2014, the Company held for sale assets in our Lincolnton manufacturing facility. As a result, the Company recognized an impairment charge of $5.7 million in the quarter ended March 31, 2014.

Columbia Laboratories Inc.

During the quarter ended March 31, 2014, the Company sold its minority interest in Columbia Laboratories Inc. for $8.5 million. As a result, the Company recognized a gain on the sale of the investment of $4.3 million in the quarter ended March 31, 2014.

 

11


Table of Contents

Actavis (Foshan) Pharmaceuticals Co., Ltd. Assets Held for Sale

During the year ended December 31, 2013, the Company held its Chinese subsidiary, Actavis (Foshan) Pharmaceuticals Co., Ltd. (“Foshan”), for sale, which resulted in an impairment charge of $8.4 million in the fourth quarter of 2013. On January 24, 2014, the Company completed an agreement with Zhejiang Chiral Medicine Chemicals Co., Ltd to acquire its interest in Foshan (the “Foshan Sale”). The Company intends to continue further commercial operations in China in collaboration with our preferred business partners.

Western European Assets Held for Sale

During the year ended December 31, 2013, the Company held for sale our commercial infrastructure in France, Italy, Spain, Portugal, Belgium, Germany and the Netherlands, including products, marketing authorizations and dossier license rights. The Company believes that the potential divestiture allows the Company to focus on faster growth markets including Central and Eastern Europe, and other emerging markets which we believe will enhance our long-term strategic objectives. On January 17, 2014, we announced our intention to enter into an agreement with Aurobindo Pharma Limited (“Aurobindo”) to sell these businesses. On April 1, 2014, the Company completed the sale of the assets in Western Europe.

In connection with the sale of our Western European assets, the Company has entered into a supply agreement whereby the Company will supply product to Aurobindo over a period of five years. In the second quarter of 2014, the Company will allocate the fair value of the consideration for the sale of the Western European assets of $65.0 million to each element of the agreement, including the supply of product.

As a result of the transactions, the Company recognized an impairment reversal / (loss) on the net assets held for sale of $3.4 million and $(34.3) million in the quarter ended March 31, 2014 and the year ended December 31, 2013, respectively. The Company anticipates recording a loss on the sale of assets in the second quarter of 2014.

The following represents the global net assets held for sale:

 

     March 31,
2014
    December 31,
2013
 

Cash and cash equivalents

   $ 73.9      $ 37.0   

Accounts receivable, net

     91.0        94.2   

Inventories, net

     113.8        122.9   

Prepaid expenses and other current assets

     52.8        59.6   

Impairment on the assets held for sale

     (36.6     (42.7
  

 

 

   

 

 

 

Total assets held for sale

   $ 294.9      $ 271.0   
  

 

 

   

 

 

 

Accounts payable and accrued expenses

   $ 204.7      $ 246.6   
  

 

 

   

 

 

 

Total liabilities held for sale

   $ 204.7      $ 246.6   
  

 

 

   

 

 

 

Net assets held for sale

   $ 90.2      $ 24.4   
  

 

 

   

 

 

 

Amendment to Sanofi Collaboration Agreement

On October 28, 2013, Warner Chilcott Company, LLC (“WCCL”), one of our indirect wholly-owned subsidiaries, and Sanofi-Aventis U.S. LLC (“Sanofi”) entered into an amendment (the “Sanofi Amendment”) to the global collaboration agreement as amended (the “Collaboration Agreement”) to which WCCL and Sanofi are parties. WCCL and Sanofi co-develop and market Actonel ® and Atelvia ® (risedronate sodium) on a global basis, excluding Japan.

Pursuant to the Sanofi Amendment, the parties amended the Collaboration Agreement with respect to Actonel ® and Atelvia ® in the U.S. and Puerto Rico (the “Exclusive Territory”) to provide that, in exchange for the payment of a lump sum of $125.0 million by WCCL to Sanofi in the year ended December 31, 2013, WCCL’s obligations with respect to the global reimbursement payment, which represented a percentage of Actavis’ net sales as defined, as it relates to the Exclusive Territory for the year ended December 31, 2014, shall be satisfied in full. The Sanofi Amendment did not and does not apply to or affect the parties’ respective rights and obligations under the Collaboration Agreement with respect to (i) the year ended December 31, 2013 or (ii) territories outside the Exclusive Territory. The $125.0 million was recorded as an intangible asset during the year ended December 31, 2013, which will be amortized over the course of the year ending December 31, 2014 using the economic benefit model.

 

12


Table of Contents

Endo Pharmaceuticals Inc.

The Company entered into an agreement with Endo Pharmaceuticals Inc. (“Endo”) and Teikoku Seiyaku Co., Ltd to settle all outstanding patent litigation related to the Company’s generic version of Lidoderm ® . Per the terms of the agreement, on September 15, 2013, the Company launched its generic version of Lidoderm ® (lidocaine topical patch 5%) to customers in the U.S. more than two years before the product’s patents expire. Lidoderm ® is a local anesthetic indicated to relieve post-shingles pain. Additionally, under the terms of the agreement, the Company has received and distributed branded Lidoderm ® prior to the launch of the generic version of Lidoderm ® .

NOTE 4 — Share-Based Compensation

The Company recognizes compensation expense for all share-based compensation awards made to employees and directors based on the fair value of the awards on the date of grant. A summary of the Company’s share-based compensation plans is presented below.

Equity Award Plans

The Company has adopted several equity award plans, all of which have been approved by the Company’s shareholders, which authorize the granting of options, restricted shares, restricted stock units and other forms of equity awards of the Company’s ordinary shares, subject to certain conditions.

Option award plans require options to be granted at the fair value of the shares underlying the options at the date of the grant and generally become exercisable over periods ranging from three to five years. Each option granted expires ten years from the date of grant. During the year ended December 31, 2013, the Company issued 225,000 stock options with an aggregate fair value of $4.9 million. The grant date fair value of options was based on a Black-Scholes grant date fair value of $21.63 per share. The Compensation Committee of the Company’s Board of Directors (the “Board”) authorized and issued restricted stock and restricted stock units to the Company’s employees, including its executive officers and certain non-employee directors (the “Participants”) under the Company’s equity compensation plans. Restricted stock awards are grants that entitle the holder to ordinary shares, subject to certain terms. Restricted stock unit awards are grants that entitle the holder the right to receive an ordinary share, subject to certain terms. Restricted stock and restricted stock unit awards (both time-based vesting and performance-based vesting) generally have restrictions eliminated over a one to four year vesting period. Restrictions generally lapse for non-employee directors after one year. Certain restricted stock units are performance-based awards issued at a target number with the actual number of restricted shares issued ranging based on achievement of the performance criteria.

Fair Value Assumptions

The Company has granted equity-based incentives to its employees comprised of non-qualified options, restricted stock and restricted stock units. All restricted stock and restricted stock units (whether time-based vesting or performance-based vesting), are granted and expensed, using the closing market price per share on the applicable grant date, over the applicable vesting period. Non-qualified options to purchase ordinary shares are granted to employees at exercise prices per share equal to the closing market price per share on the date of grant. The fair value of non-qualified options is determined on the applicable grant dates using the Black-Scholes method of valuation and that amount is recognized as an expense over the four year vesting period.

Share-Based Compensation Expense

Share-based compensation expense recognized in the Company’s results of operations for the quarters ended March 31, 2014 and 2013 was $16.7 million and $12.5 million (including $0.3 million of non-equity settled awards), respectively. Unrecognized future stock-based compensation expense was $108.8 million as of March 31, 2014. This amount will be recognized as an expense over a remaining weighted average period of 2.8 years. Stock-based compensation is being amortized and charged to operations over the same period as the restrictions are eliminated for the participants, which is generally on a straight-line basis.

 

13


Table of Contents

Share Activity

The following is a summary of equity award activity for unvested restricted stock and stock units in the period from December 31, 2013 through March 31, 2014:

 

(in millions, except per share data)    Shares     Weighted
Average
Grant Date
Fair Value
     Weighted
Average
Remaining
Contractual
Term (Years)
     Aggregate
Grant Date
Fair Value
 

Restricted shares / units outstanding at December 31, 2013

     1.9      $ 80.12         1.4       $ 152.2   

Granted

     0.3        219.54            65.9   

Vested

     (0.8     83.75            (67.0
  

 

 

   

 

 

    

 

 

    

 

 

 

Restricted shares / units outstanding at March 31, 2014

     1.4      $ 107.93         1.3       $ 151.1   
  

 

 

   

 

 

    

 

 

    

 

 

 

The following is a summary of equity award activity for non-qualified options to purchase ordinary shares in the period from December 31, 2013 through March 31, 2014:

 

(in millions, except per share data)    Options     Weighted
Average
Exercise
Price
     Weighted
Average
Remaining
Contractual
Term (Years)
     Aggregate
Intrinsic
Value
 

Outstanding, December 31, 2013

     0.4      $ 43.50         

Exercised

     (0.1     56.20         
  

 

 

   

 

 

    

 

 

    

 

 

 

Outstanding, March 31, 2014

     0.3      $ 38.95         2.49       $ 53.9   
  

 

 

   

 

 

    

 

 

    

 

 

 

Vested and expected to vest at March 31, 2014

     0.3      $ 36.51         2.22       $ 52.2   
  

 

 

   

 

 

    

 

 

    

 

 

 

In addition to the awards discussed above, the Company also grants deminimis awards to be settled in cash due to local statutory requirements.

NOTE 5 — Reportable Segments

In the first quarter of 2014, the Board of Directors realigned the Company’s global strategic business structure. Prior to the realignment, the Company operated and managed its business as three distinct operating segments: Actavis Pharma, Actavis Specialty Brands and Anda Distribution.

Under the new organizational structure, generics, specialty brands and third-party commercial operations have been consolidated into a single new division. As a result of the realignment, the Company organized its business into two operating segments: Actavis Pharma and Anda Distribution. The Actavis Pharma segment includes patent-protected products and certain trademarked off-patent products that the Company sells and markets as brand pharmaceutical products and off-patent pharmaceutical products that are therapeutically equivalent to proprietary products. The Anda Distribution segment distributes generic and brand pharmaceutical products manufactured by third parties, as well as by the Company, primarily to independent pharmacies, pharmacy chains, pharmacy buying groups and physicians’ offices. The Anda Distribution segment operating results exclude sales of products developed, acquired, or licensed by the Actavis Pharma segment.

The Company evaluates segment performance based on segment contribution. Segment contribution for Actavis Pharma and Anda Distribution represents segment net revenues less cost of sales (excluding amortization and impairment of acquired intangibles including product rights), selling and marketing expenses and general and administrative expenses. The Company does not report total assets, capital expenditures, R&D, amortization loss on asset sales, impairments and contingent consideration adjustment, net by segment as not all such information has been accounted for at the segment level, nor has such information been used by all segments. R&D related to our Actavis Pharma segment was $171.5 million in the first quarter of 2014. Within R&D, $113.9 million was generic development, $33.2 million was invested in brand development and $24.4 million was invested in biosimilar development during the quarter.

 

14


Table of Contents

Segment net revenues, segment operating expenses and segment contribution information for the Company’s Actavis Pharma and Anda Distribution segments consisted of the following for the quarter ended March 31, 2014 (in millions):

 

     Actavis
Pharma
    Anda
Distribution
    Total  

Product sales

   $ 2,206.7      $ 390.2      $ 2,596.9   

Other revenue

     58.2        —          58.2   
  

 

 

   

 

 

   

 

 

 

Net revenues

     2,264.9        390.2        2,655.1   

Operating expenses:

      

Cost of sales (1)

     961.8        331.2        1,293.0   

Selling and marketing

     256.1        27.0        283.1   

General and administrative

     268.0        7.8        275.8   
  

 

 

   

 

 

   

 

 

 

Contribution

   $ 779.0      $ 24.2      $ 803.2   
  

 

 

   

 

 

   

Contribution margin

     34.4     6.2     30.3

Research and development

         171.5   

Amortization

         424.2   

Loss on asset sales, impairments and contingent consideration adjustment, net

         (0.4
      

 

 

 

Operating income

       $ 207.9   
      

 

 

 

Operating margin

         7.8

 

(1) Excludes amortization and impairment of acquired intangibles including product rights.

Segment net revenues, segment operating expenses and segment contribution information for the Company’s Actavis Pharma and Anda Distribution segments consisted of the following for the quarter ended March 31, 2013 (in millions):

 

     Actavis
Pharma
    Anda
Distribution
    Total  

Product sales

   $ 1,640.3      $ 231.0      $ 1,871.3   

Other revenue

     24.2        —          24.2   
  

 

 

   

 

 

   

 

 

 

Net revenues

     1,664.5        231.0        1,895.5   

Operating expenses:

      

Cost of sales (1)

     892.1        194.5        1,086.6   

Selling and marketing

     207.3        19.9        227.2   

General and administrative

     178.3        7.5        185.8   
  

 

 

   

 

 

   

 

 

 

Contribution

   $ 386.8      $ 9.1      $ 395.9   
  

 

 

   

 

 

   

Contribution margin

     23.2     3.9     20.9

Research and development

         132.1   

Amortization

         158.4   

Loss on asset sales, impairments and contingent consideration adjustment, net

         148.0   
      

 

 

 

Operating (loss)

       $ (42.6
      

 

 

 

Operating margin

         (2.2 )% 

 

(1) Excludes amortization and impairment of acquired intangibles including product rights.

 

15


Table of Contents

The following table presents net revenues for the reporting units in the Actavis Pharma segment for the quarters ended March 31, 2014 and 2013 (in millions):

 

     March 31,
2014
     March 31,
2013
 

North American Brands:

     

Women’s Health

   $ 212.6       $ 20.0   

Urology / Gastroenterology

     225.2         56.7   

Dermatology / Established Brands

     156.2         52.9   
  

 

 

    

 

 

 

Total North American Brands

     594.0         129.6   
  

 

 

    

 

 

 

North American Generics

     1,024.2         956.7   

International

     646.7         578.2   
  

 

 

    

 

 

 

Net Revenues

   $ 2,264.9       $ 1,664.5   
  

 

 

    

 

 

 

North American Brand revenues are monitored based on the current mix of promoted products within Women’s Health, Urology / Gastroenterology and Dermatology / Established Brands. Movement of products between categories may occur from time to time based on changes in promotional activities.

NOTE 6 — Inventories

Inventories consist of finished goods held for sale and distribution, raw materials and work-in-process. Inventories are stated at the lower of cost (first-in, first-out method) or market (net realizable value). The Company writes down inventories to net realizable value based on forecasted demand, market conditions or other factors, which may differ from actual results.

Inventories consisted of the following (in millions):

 

     March 31,
2014
     December 31,
2013
 

Raw materials

   $ 511.4       $ 522.0   

Work-in-process

     176.9         168.9   

Finished goods

     1,197.8         1,250.3   
  

 

 

    

 

 

 
     1,886.1         1,941.2   

Less: inventory reserves

     159.8         154.9   
  

 

 

    

 

 

 

Inventories, net

   $ 1,726.3       $ 1,786.3   
  

 

 

    

 

 

 

Included in finished goods inventory as of March 31, 2014 and December 31, 2013 was $110.4 million and $235.1 million, respectively, relating to the fair value step-up associated with the Warner Chilcott Acquisition.

NOTE 7 — Investments in Marketable Securities and Other Investments

Investments in marketable securities and other investments consisted of the following (in millions):

 

     March 31,
2014
     December 31,
2013
 

Marketable securities:

     

U.S. Treasury and agency securities — maturing within one year

   $ 2.5       $ 2.5   
  

 

 

    

 

 

 

Total marketable securities

   $ 2.5       $ 2.5   
  

 

 

    

 

 

 

Investments and other assets:

     

Equity method investments

   $ 8.9       $ 12.3   

Cost method and other long-term investments

     1.0         1.0   

Taxes receivable

     57.8         57.7   

Deferred loan costs

     53.1         44.0   

Other assets

     24.4         22.5   
  

 

 

    

 

 

 

Total investments and other assets

   $ 145.2       $ 137.5   
  

 

 

    

 

 

 

 

16


Table of Contents

NOTE 8 — Accounts payable and accrued expenses

Trade accounts payable was $594.7 million and $493.3 million as of March 31, 2014 and December 31, 2013, respectively.

Accrued expenses consisted of the following (in millions):

 

     March 31,
2014
     December 31,
2013
 

Accrued expenses:

     

Accrued third-party rebates

   $ 550.2       $ 615.8   

Litigation-related reserves and legal fees

     248.4         265.7   

Accrued payroll and related benefits

     190.6         240.2   

Royalties and sales agent payables

     92.9         119.1   

Accrued indirect returns

     92.4         103.2   

Interest payable

     69.6         68.9   

Accrued severance, retention and other shutdown costs

     47.2         89.3   

Accrued selling and marketing expenditures

     46.6         38.1   

Accrued professional fees

     43.2         22.6   

Accrued R&D expenditures

     41.1         46.6   

Accrued pharmaceutical fees

     40.0         16.2   

Accrued non-provision taxes

     37.1         43.7   

Accrued co-promotion liabilities

     33.6         14.8   

Current portion of contingent consideration obligations

     33.2         33.8   

Other accrued expenses

     163.0         131.9   
  

 

 

    

 

 

 

Total accrued expenses

   $ 1,729.1       $ 1,849.9   
  

 

 

    

 

 

 

NOTE 9 — Goodwill, Product Rights and Other Intangible Assets

Goodwill for the Company’s reporting segments consisted of the following (in millions):

 

     Actavis Pharma     Anda Distribution      Total  

Balance at December 31, 2013

   $ 8,111.3      $ 86.3       $ 8,197.6   
  

 

 

   

 

 

    

 

 

 

Additions through acquisitions

     0.5        —           0.5   

Measurement period adjustments and other

     (36.8     —           (36.8

Foreign exchange and other adjustments

     3.5        —           3.5   
  

 

 

   

 

 

    

 

 

 

Balance at March 31, 2014

   $ 8,078.5      $ 86.3       $ 8,164.8   
  

 

 

   

 

 

    

 

 

 

During the quarter ended March 31, 2014, there was a decrease in goodwill resulting from adjustments to SRA reserves and the applicable deferred taxes relating to the SRA reserves in connection with the Warner Chilcott Acquisition.

As a result of the change in operating segments during the quarter ended March 31, 2014, the Company reviewed goodwill for a triggering event indicating a possible impairment, noting no such indicators existed.

 

17


Table of Contents

Product rights and other intangible assets consisted of the following (in millions):

 

Cost basis

   Balance as of
December 31,
2013
    Acquisitions     Impairments     Other     Foreign
Currency
Translation
    Balance as
of
March 31,
2014
 

Intangibles with definite lives:

            

Product rights and other related intangibles

   $ 8,512.6      $ 61.8      $ —        $ 8.4      $ (6.8   $ 8,576.0   

Customer relationships

     157.2        —          —          —          —          157.2   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total definite-lived intangible assets

   $ 8,669.8      $ 61.8      $ —        $ 8.4      $ (6.8   $ 8,733.2   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Intangibles with indefinite lives:

            

IPR&D

   $ 2,334.6      $ —        $ —        $ (2.9   $ (1.9   $ 2,329.8   

Trade Name

     76.2        —          —          —          —          76.2   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total indefinite-lived intangible assets

   $ 2,410.8      $ —        $ —        $ (2.9   $ (1.9   $ 2,406.0   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total product rights and related intangibles

   $ 11,080.6      $ 61.8      $ —        $ 5.5      $ (8.7   $ 11,139.2   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Accumulated Amortization

   Balance as of
December 31,
2013
    Amortization     Impairments     Other     CTA     Balance as
of
March 31,
2014
 

Intangibles with definite lives:

            

Product rights and other related intangibles

   $ (2,807.2   $ (421.4   $ (1.5   $ (7.0   $ 6.4      $ (3,230.7

Customer relationships

     (38.9     (2.8     —          —          —          (41.7
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total definite-lived intangible assets

   $ (2,846.1   $ (424.2   $ (1.5   $ (7.0   $ 6.4      $ (3,272.4
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total indefinite-lived intangible assets

     —          —          —          —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total product rights and related intangibles

   $ (2,846.1   $ (424.2   $ (1.5   $ (7.0   $ 6.4      $ (3,272.4
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net Product Rights and Other Intangibles

   $ 8,234.5              $ 7,866.8   
  

 

 

           

 

 

 

On March 25, 2014, upon FDA approval, the Company acquired metronidazole 1.3% vaginal gel antibiotic, a topical antibiotic for the treatment of bacterial vaginosis, from Valeant and recognized an intangible asset of $61.8 million.

Assuming no additions, disposals or adjustments are made to the carrying values and/or useful lives of the intangible assets, annual amortization expense on product rights over the remainder of 2014 and each of the next five years is estimated to be as follows (in millions):

 

     Amount  

2014 (remaining)

   $ 1,205.8   

2015

   $ 1,214.0   

2016

   $ 752.2   

2017

   $ 597.0   

2018

   $ 500.0   

2019

   $ 387.2   

The above amortization expense is an estimate. Actual amounts may change from such estimated amounts due to fluctuations in foreign currency exchange rates, additional intangible asset acquisitions, finalization of preliminary fair value estimate, potential impairments, accelerated amortization or other events.

 

18


Table of Contents

NOTE 10 — Long-Term Debt

Debt consisted of the following (in millions):

 

     March 31,
2014
    December 31,
2013
 

WC Term Loan Agreement

   $ 1,809.5      $ 1,832.8   

Amended and Restated ACT Term Loan

     1,273.6        1,310.0   

Revolving Credit Facility

     —          265.0   

Senior Notes:

    

$1,200.0 million 1.875% notes due October 1, 2017

     1,200.0        1,200.0   

$1,250.0 million 7.75% notes due September 15, 2018

     1,250.0        1,250.0   

$400.0 million 6.125% notes due August 14, 2019

     400.0        400.0   

$1,700.0 million 3.250% notes due October 1, 2022

     1,700.0        1,700.0   

$1,000.0 million 4.625% notes due October 1, 2042

     1,000.0        1,000.0   

Plus: Unamortized premium

     98.4        103.9   

Less: Unamortized discount

     (31.3     (31.9
  

 

 

   

 

 

 

Senior Notes, net

     5,617.1        5,622.0   

Capital leases

     20.3        22.2   
  

 

 

   

 

 

 

Total debt and capital leases

     8,720.5        9,052.0   

Less: Current portion

     268.3        534.6   
  

 

 

   

 

 

 

Total long-term debt and capital leases

   $ 8,452.2      $ 8,517.4   
  

 

 

   

 

 

 

Credit Facility Indebtedness

2013 Term Loan

WC Term Loan Agreement

On October 1, 2013 (the “Closing Date”), Warner Chilcott Corporation (“WC Corporation”), WC Luxco S.à r.l. (“WC Luxco”), WCCL (“WC Company” and, together with WC Corporation and WC Luxco, the “WC Borrowers”), as borrowers, and Warner Chilcott Finance LLC, as a subsidiary guarantor, became parties to the Warner Chilcott Term Loan Credit and Guaranty Agreement (the “WC Term Loan Agreement”), dated as of August 1, 2013, by and among the Company, as parent guarantor, Bank of America (“BofA”), as administrative agent thereunder and a syndicate of banks participating as lenders. Pursuant to the WC Term Loan Agreement, on the Closing Date, the lenders party thereto provided term loans to the WC Borrowers in a total aggregate principal amount of $2.0 billion, comprised of (i) a $1.0 billion tranche that will mature on October 1, 2016 (the “Three Year Tranche”) and (ii) a $1.0 billion tranche that will mature on October 1, 2018 (the “Five Year Tranche”). The proceeds of borrowings under the WC Term Loan Agreement, together with $41.0 million of cash on hand, were used to finance, the repayment in full of all amounts outstanding under Warner Chilcott’s then-existing Credit Agreement, dated as of March 17, 2011, as amended by Amendment No. 1 on August 20, 2012, among the WC Borrowers, BofA, as administrative agent and a syndicate of banks participating as lenders.

Borrowings under the WC Term Loan Agreement bear interest at the applicable WC Borrower’s choice of a per annum rate equal to either (a) a base rate plus an applicable margin per annum varying from (x) 0.00% per annum to 0.75% per annum under the Three Year Tranche and (y) 0.125% per annum to 0.875% per annum under the Five Year Tranche, depending on the publicly announced debt ratings for non-credit-enhanced, senior unsecured long-term indebtedness of the parent (such applicable debt rating the “Debt Rating”) or (b) a Eurodollar rate, plus an applicable margin varying from (x) 1.00% per annum to 1.75% per annum under the Three Year Tranche and (y) 1.125% per annum to 1.875% per annum under the Five Year Tranche, depending on the Debt Rating.

 

19


Table of Contents

The outstanding principal amount of loans under the Three Year Tranche is not subject to quarterly amortization and shall be payable in full on the three year anniversary of the Closing Date. The outstanding principal amount of loans under the Five Year Tranche is payable in equal quarterly amounts of 2.50% per quarter prior to the fifth anniversary of the Closing Date, with the remaining balance payable on the fifth year anniversary of the Closing Date.

The Company is subject to, and, at March 31, 2014, was in compliance with, all financial and operational covenants under the terms of the WC Term Loan Agreement. As of March 31, 2014, the outstanding indebtedness under the Three Year Tranche and the Five Year Tranche was $925.0 million and $884.5 million, respectively. The book value of the outstanding indebtedness approximates fair value as the debt is at variable interest rates and re-prices frequently.

Amended and Restated Actavis, Inc. Credit and Guaranty Agreements

Amended and Restated ACT Term Loan

On the Closing Date and pursuant to the Term Loan Amendment Agreement (the “Term Amendment Agreement”), by and among Actavis, Inc., a wholly owned subsidiary of the Company, BofA, as administrative agent thereunder, and the lenders party thereto, dated as of August 1, 2013, the Company, as parent guarantor, Actavis WC Holding S.à r.l. (the “ACT Borrower”), as borrower, Actavis, Inc., as a subsidiary guarantor, and BofA, as administrative agent, entered into the Amended and Restated Actavis Term Loan Credit and Guaranty Agreement (the “ACT Term Loan Agreement”), dated as of October 1, 2013. The ACT Term Loan Agreement amended and restated Actavis, Inc.’s $1,800.0 million senior unsecured term loan credit facility, dated as of June 22, 2012. At closing, an aggregate principal amount of $1,572.5 million was outstanding under the ACT Term Loan Agreement.

The Amended and Restated Term Loan provides that loans thereunder will bear interest, at the Company’s choice, of a per annum rate equal to either (a) a base rate, plus an applicable margin per annum varying from 0.00% per annum to 1.00% per annum depending on the Debt Rating or (b) a Eurodollar rate, plus an applicable margin varying from 1.00% per annum to 2.00% per annum depending on the Debt Rating.

The Amended and Restated Term Loan matures on October 31, 2017. The outstanding principal amount is payable in equal quarterly installments of 2.50% per quarter, with the remaining balance payable on the maturity date.

The Company is subject to, and at March 31, 2014 was in compliance with, all financial and operational covenants under the terms of the ACT Term Loan Agreement. The outstanding balance of the Term Loan at March 31, 2014 was $1,273.6 million. The book value of the outstanding indebtedness approximates fair value as the debt is at variable interest rates and re-prices frequently.

Revolving Credit Facility

On the Closing Date and pursuant to the Revolver Loan Amendment Agreement (the “Revolver Amendment Agreement” and, together with the Term Amendment Agreement, the “Amendment Agreements”), by and among Actavis, Inc., as subsidiary guarantor, BofA, as administrative agent thereunder, and the lenders party thereto, dated as of August 1, 2013, the Company, as parent guarantor, the ACT Borrower, as borrower, Actavis, Inc., as a subsidiary guarantor, and BofA, as administrative agent, entered into that certain Amended and Restated Actavis Revolving Credit and Guaranty Agreement (the “ACT Revolving Credit Agreement” and, together with the ACT Term Loan Agreement, the “Amended and Restated Credit Agreements”), dated as of October 1, 2013. The ACT Revolving Credit Agreement amended and restated Actavis, Inc.’s $750.0 million senior unsecured revolving credit facility dated as of September 16, 2011, as amended by that certain Amendment No. 1 to the credit agreement and joinder agreement, dated as of May 21, 2012. At closing, $9.4 million of letters of credit were outstanding under the ACT Revolving Credit Agreement. At closing, no loans were outstanding under the ACT Revolving Credit Agreement.

The ACT Revolving Credit Agreement provides that loans thereunder will bear interest, at the Company’s choice, of a per annum rate equal to either (a) a base rate, plus an applicable margin per annum varying from 0.00% per annum to 0.75% per annum depending on the Debt Rating or (b) a Eurodollar rate, plus an applicable margin varying from 0.875% per annum to 1.75% per annum depending on the Debt Rating. Additionally, to maintain availability of funds, the Company pays an unused commitment fee, which according to the pricing grid is set at 0.15% of the unused portion of the revolver.

The Company is subject to, and as of March 31, 2014 was in compliance with, all financial and operational covenants under the terms of the Revolving Credit Facility. At March 31, 2014, letters of credit outstanding were $9.4 million. The net availability under the Revolving Credit Facility was $740.6 million.

 

20


Table of Contents

Senior Notes Indebtedness

Actavis, Inc. Supplemental Indenture

On October 1, 2013, the Company, Actavis, Inc., a wholly owned subsidiary of the Company, and Wells Fargo Bank, National Association, as trustee, entered into a fourth supplemental indenture (the “Fourth Supplemental Indenture”) to the indenture, dated as of August 24, 2009 (the “Base Indenture” and, together with the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture (each as defined below), the “Indenture”), as supplemented by the first supplemental indenture, dated as of August 24, 2009 (the “First Supplemental Indenture”), the second supplemental indenture, dated as of May 7, 2010 (the “Second Supplemental Indenture”), and the third supplemental indenture, dated as of October 2, 2012 (the “Third Supplemental Indenture”). Pursuant to the Fourth Supplemental Indenture, the Company has provided a full and unconditional guarantee of Actavis, Inc.’s obligations under its $450.0 million 5.000% senior notes due August 15, 2014, (the “2014 Notes”), its $400.0 million 6.125% senior notes due August 15, 2019 (the “2019 Notes”), its $1,200.0 million 1.875% senior notes due October 1, 2017 (the “2017 Notes”), its $1,700.0 million 3.250% senior notes due October 1, 2022 (the “2022 Notes”) and its $1,000.0 million 4.625% Senior Notes due October 1, 2042 (the “2042 Notes”, and together with the 2014 Notes, the 2019 Notes, the 2017 Notes and the 2022 Notes, the “Notes”).

WC Supplemental Indenture

On October 1, 2013, the Company, WCCL, Warner Chilcott Finance LLC (the “Co-Issuer” and together with WC Company, the “Issuers”) and Wells Fargo Bank, National Association, as trustee (the “WC Trustee”), entered into a third supplemental indenture (the “Supplemental Indenture”) to the indenture, dated as of August 20, 2010 (the “WC Indenture”), among the Issuers, the guarantors party thereto and the WC Trustee, with respect to the Issuers’ 7.75% senior notes due 2018 (the “WC Notes”). Pursuant to the Supplemental Indenture, the Company has provided a full and unconditional guarantee of the Issuers’ obligations under the WC Notes and the WC Indenture.

The fair value of the Company’s outstanding WC Notes ($1,250.0 million face value), as determined in accordance with ASC Topic 820 “Fair Value Measurement” (“ASC 820”) under Level 2 based upon quoted prices for similar items in active markets, was $1,336.0 million and $1,357.4 million as of March 31, 2014 and December 31, 2013, respectively.

2012 Notes Issuance

On October 2, 2012, Actavis, Inc., issued the 2017 Notes, the 2022 Notes, and the 2042 Notes (collectively the “2012 Senior Notes”). Interest payments are due on the 2012 Senior Notes semi-annually in arrears on April 1 and October 1 beginning April 1, 2013. Net proceeds from the offering of the 2012 Senior Notes were used for the Actavis Group Acquisition. The fair value of the Company’s outstanding 2012 Senior Notes ($3,900.0 million face value), as determined in accordance with ASC 820 under Level 2 based upon quoted prices for similar items in active markets, was $3,779.0 million and $3,683.2 million as of March 31, 2014 and December 31, 2013, respectively.

2009 Notes Issuance

On August 24, 2009, Actavis, Inc. issued the 2014 Notes and the 2019 Notes (collectively the “2009 Senior Notes”). Interest payments are due on the 2009 Senior Notes semi-annually in arrears on February 15 and August 15, respectively, beginning February 15, 2010. Net proceeds from the offering of 2009 Senior Notes were used to repay certain debt with the remaining net proceeds being used to fund a portion of the cash consideration for the Arrow Group (acquired on December 2, 2009, in exchange for cash consideration of $1.05 billion, approximately 16.9 million shares of the Company’s Restricted Ordinary Shares and 200,000 shares of the Company’s Mandatorily Redeemable Preferred Stock and certain contingent consideration (the “Arrow Group Acquisition”). The 2014 Notes, which had an outstanding principal balance of $450.0 million and which were fully and unconditionally guaranteed by us, were redeemed on November 5, 2013 at a redemption price equal to $465.6 million, which resulted in a cash expense of $15.6 million in the fourth quarter of 2013. The fair value of the Company’s outstanding 2009 Senior Notes ($400.0 million face value), as determined in accordance with ASC 820 under Level 2 based upon quoted prices for similar items in active markets, was $461.1 million and $460.9 million as of March 31, 2014 and December 31, 2013, respectively.

 

21


Table of Contents

Annual Debt Maturities

As of March 31, 2014, annual debt maturities were as follows (in millions):

 

     Total Payments  

2014 (remaining)

   $ 179.0   

2015

     238.7   

2016

     1,163.7   

2017

     2,166.4   

2018

     1,785.3   

2019 and after

     3,100.0   
  

 

 

 
     8,633.1   
  

 

 

 

Capital Leases

     20.3   

Unamortized Premium

     98.4   

Unamortized Discount

     (31.3
  

 

 

 

Total Indebtedness and Capital Leases

   $ 8,720.5   
  

 

 

 

Amounts represent total anticipated cash payments assuming scheduled repayments under the WC Term Loan Agreement, the ACT Term Loan Agreement and maturities of the Company’s existing notes.

NOTE 11 — Other Long-Term Liabilities

Other long-term liabilities consisted of the following (in millions):

 

     March 31,
2014
     December 31,
2013
 

Acquisition related contingent consideration liabilities

   $ 216.0       $ 180.9   

Long-term pension liability

     45.4         48.5   

Long-term severance liabilities

     18.4         27.4   

Litigation-related reserves

     24.2         24.3   

Other long-term liabilities

     42.0         45.1   
  

 

 

    

 

 

 

Total other long-term liabilities

   $ 346.0       $ 326.2   
  

 

 

    

 

 

 

NOTE 12 — Income Taxes

The Company’s effective tax rate for the quarter ended March 31, 2014 was 31.5% compared to (37.5)% for the quarter ended March 31, 2013. The effective tax rate for the quarter ended March 31, 2014 was impacted by income earned in jurisdictions with tax rates lower than the U.S. federal tax rate, offset by losses in certain non-U.S. jurisdictions for which no tax benefit is provided and the amortization of intangibles and inventory being tax benefited at a lower rate than the U.S. federal tax rate. Additionally, the tax provision included a benefit of $9.7 million related to certain changes to the Company’s uncertain tax positions. The effective tax rate for the quarter ended March 31, 2013 was impacted by certain non-deductible pre-tax expenses including a charge for consideration due to the former Actavis Group stakeholders of $150.3 million. This was partially offset by non-taxable pre-tax income of $15.0 million related to the Arrow Acquisition.

The Company conducts business globally and, as a result, it files U.S. federal, state, and non-U.S. tax returns. The Company strives to resolve open matters with each tax authority at the examination level and could reach agreement with a tax authority at any time. While the Company believes it has appropriately accrued for open tax matters, the final outcome with a tax authority may result in a tax liability that is more or less than that reflected in the consolidated financial statements. Furthermore, the Company may later decide to challenge any assessments, if made, and may exercise its right to appeal. The uncertain tax positions are reviewed quarterly and adjusted as events occur that affect potential liabilities for additional taxes, such as lapsing of applicable statutes of limitations, proposed assessments by tax authorities, negotiations between tax authorities, identification of new issues, and issuance of new legislation, regulations, or case law. Management believes that appropriate amounts of tax and related penalty and interest have been provided for any adjustments that may result from these uncertain tax positions.

With few exceptions, the Company is no longer subject to U.S. federal, state, or non-U.S. income tax examinations for years before 2008. For the Company’s 2008-2009 tax years, the IRS has agreed on all issues except the timing of the deductibility of certain litigation costs. The IRS has begun the examination of the Company’s 2010-2011 tax years in the second quarter of 2013. Additionally, the IRS is examining the 2009-2011 tax returns for Actavis’ pre-acquisition U.S. business.

 

22


Table of Contents

During the first quarter of 2014, the Company settled Warner Chilcott’s U.S. federal tax audit for the 2008-2009 tax years with the IRS. Further, the IRS has indicated that it will commence an audit of the 2010-2011 tax years in the second quarter of 2014. While it is often difficult to predict the final outcome or the timing of resolution of any particular uncertain tax position, the Company has accrued for amounts it believes are the likely outcomes at this time.

NOTE 13 — Shareholders’ Equity

A summary of the changes in shareholders’ equity for the quarter ended March 31, 2014 consisted of the following (in millions):

 

Shareholders’ equity as of December 31, 2013

   $ 9,532.1   

Ordinary shares issued under employee plans

     6.4   

Increase in additional paid-in-capital for share-based compensation plans

     16.7   

Net income attributable to common shareholders

     96.5   

Other comprehensive (loss)

     (6.8

Excess tax benefit from employee stock plans

     36.8   

Repurchase of ordinary shares

     (57.0
  

 

 

 

Shareholders’ equity as of March 31, 2014

   $ 9,624.7   
  

 

 

 

Accumulated Other Comprehensive Income / (Loss)

For most of the Company’s international operations, the local currency has been determined to be the functional currency. The results of its non-U.S. dollar based operations are translated to U.S. dollars at the average exchange rates during the period. Assets and liabilities are translated at the rate of exchange prevailing on the balance sheet date. Equity is translated at the prevailing rate of exchange at the date of the equity transaction. Translation adjustments are reflected in shareholders’ equity and are included as a component of other comprehensive income / (loss). The effects of converting non-functional currency assets and liabilities into the functional currency are recorded as general and administrative expenses in the consolidated statements of operations.

The movements in accumulated other comprehensive income for the quarter ended March 31, 2014 were as follows (in millions):

 

     Foreign
Currency
Translation
Items
    Unrealized
gains/
(losses) net
of tax
     Total
Accumulated
Other
Comprehensive
Income / (Loss)
 

Balance as of December 31, 2013

   $ 85.1      $ 5.4       $ 90.5   

Other comprehensive (loss)/income before reclassifications into general and administrative

     (7.5     0.7         (6.8

Amounts reclassified from accumulated other comprehensive income into general and administrative

     —          —           —     
  

 

 

   

 

 

    

 

 

 

Total other comprehensive (loss)/income

     (7.5     0.7         (6.8
  

 

 

   

 

 

    

 

 

 

Balance as of March 31, 2014

   $ 77.6      $ 6.1       $ 83.7   
  

 

 

   

 

 

    

 

 

 

The movements in accumulated other comprehensive income / (loss) for the quarter ended March 31, 2013 were as follows (in millions):

 

     Foreign
Currency
Translation
Items
    Unrealized
gains/
(losses) net
of tax
     Total
Accumulated
Other
Comprehensive
Income / (Loss)
 

Balance as of December 31, 2012

   $ 36.7      $ 0.1       $ 36.8   

Other comprehensive (loss) before reclassifications into general and administrative

     (128.5     —           (128.5

Amounts reclassified from accumulated other comprehensive (loss) into general and administrative

     —          —           —     
  

 

 

   

 

 

    

 

 

 

Total other comprehensive (loss)

     (128.5     —           (128.5
  

 

 

   

 

 

    

 

 

 

Balance as of March 31, 2013

   $ (91.8   $ 0.1       $ (91.7
  

 

 

   

 

 

    

 

 

 

 

23


Table of Contents

NOTE 14 — Derivative Instruments and Hedging Activities

        The Company’s revenue, earnings, cash flows and fair value of its assets and liabilities can be impacted by fluctuations in foreign exchange risks and interest rates, as applicable. The Company manages the impact of foreign exchange risk and interest rate movements through operational means and through the use of various financial instruments, including derivative instruments such as foreign currency contracts.

Foreign Currency Forward Contracts

As a result of the acquisition of the Actavis Group on October 31, 2012, the Company’s exposure to foreign exchange fluctuations has increased. The Company has entered into foreign currency forward contracts to mitigate volatility in anticipated foreign currency cash flows resulting from changes in foreign currency exchange rates, primarily associated with non-functional currency denominated revenues and expenses of foreign subsidiaries. The foreign currency forward contracts outstanding at March 31, 2014 have settlement dates within 12 months. The effect of the derivative contracts was zero and a gain of $0.3 million for the quarters ended March 31, 2014 and 2013, respectively, and was recognized in other income (expense). The forward contracts are classified in the consolidated balance sheet in prepaid expenses and other assets or accounts payable and accrued expenses, as applicable.

The foreign currency forward contracts to buy Euros and sell Russian Rubles at March 31, 2014 were as follows (in millions):

 

     Notional Amount  

Foreign Currency

   Buy      Sell  

Russian Ruble

   —         18.6   
  

 

 

    

 

 

 
   —         18.6   
  

 

 

    

 

 

 

NOTE 15 — Fair Value Measurement

Fair value is the price that would be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants. Fair values determined based on Level 1 inputs utilize quoted prices (unadjusted) in active markets for identical assets or liabilities. Fair values determined based on Level 2 inputs utilize observable quoted prices for similar assets and liabilities in active markets and observable quoted prices for identical or similar assets in markets that are not very active. Fair values determined based on Level 3 inputs utilize unobservable inputs and include valuations of assets or liabilities for which there is little, if any, market activity. A financial asset or liability’s classification within the above hierarchy is determined based on the lowest level input that is significant to the fair value measurement.

Assets and liabilities measured at fair value or disclosed at fair value on a recurring basis as of March 31, 2014 and December 31, 2013 consisted of the following (in millions):

 

     Fair Value Measurements as at March 31,
2014 Using:
 
     Total      Level 1      Level 2      Level 3  

Assets:

           

Marketable securities

   $ 2.5       $ 2.5       $ —         $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

     2.5         2.5         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities:

           

Contingent consideration

     249.2         —           —           249.2   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total liabilities

   $ 249.2       $ —         $ —         $ 249.2   
  

 

 

    

 

 

    

 

 

    

 

 

 
     Fair Value Measurements as at
December 31, 2013 Using:
 
     Total      Level 1      Level 2      Level 3  

Assets:

           

Marketable securities

   $ 2.5       $ 2.5       $ —         $ —     

Foreign exchange forward contracts

     0.3         —           0.3         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

     2.8         2.5         0.3         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities:

           

Contingent consideration

     214.7         6.9         —           207.8   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total liabilities

   $ 214.7       $ 6.9       $ —         $ 207.8   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

24


Table of Contents

Marketable securities and investments consist of available-for-sale investments in U.S. treasury and agency securities and publicly traded equity securities for which market prices are readily available. Unrealized gains or losses on marketable securities and investments are recorded in accumulated other comprehensive income.

The fair value measurement of the contingent consideration obligations is determined using Level 3 inputs and is based on a probability-weighted income approach. The measurement is based upon unobservable inputs supported by little or no market activity based on our own assumptions. Changes in the fair value of the contingent consideration obligations are recorded in our consolidated statement of operations. For the quarter ended March 31, 2014, charges of $0.3 million and $7.3 million have been included in cost of sales and R&D, respectively. For the quarter ended March 31, 2013, charges of $0.4 million have been included in cost of sales in the accompanying consolidated statement of operations.

The table below provides a summary of the changes in fair value, including net transfers in and/or out, of all financial assets and liabilities measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the quarters ended March 31, 2014 and 2013 (in millions):

 

     Balance at
December 31,
2013
     Net
transfers
in to
(out of)
Level 3
    Purchases
and
settlements,
net
     Net
accretion
and fair
value
adjustments
    Foreign
currency
translation
    Balance
at
March 31,
2014
 

Liabilities:

              

Contingent consideration obligations

   $ 207.8       $ —        $ 49.2       $ (7.0   $ (0.8   $ 249.2   
     Balance at
December 31,
2012
     Net
transfers
in to
(out of)
Level 3
    Purchases
and
settlements,
net
     Net
accretion
and fair
value
adjustments
    Foreign
currency
translation
    Balance
at
March 31,
2013
 

Liabilities:

              

Contingent consideration obligations

   $ 363.1       $ (335.8   $ 37.4       $ 0.4      $ (2.5   $ 62.6   

During the quarter ended March 31, 2014, the Company recorded additional contingent consideration of $50.3 million in connection with the acquisition of metronidazole 1.3% vaginal gel antibiotic from Valeant. During the quarter ended March 31, 2013, the Company transferred to level 1 the contingent obligation for the Actavis Group earn-out ($335.8 million). The Company recorded additional contingent consideration of $43.4 million in connection with the Uteron Acquisition offset, in part, by contingent payments made to the Arrow Group selling shareholders based on the after-tax gross profits on sales of atorvastatin within the U.S.

NOTE 16 — Business Restructuring Charges

During 2013 and the quarter ended March 31, 2014 activity related to our business restructuring and facility rationalization activities primarily related to the cost optimization initiatives in conjunction with the Warner Chilcott and Actavis Acquisitions as well as optimization of our operating cost structure through our global supply chain initiative (“GSCI”). Restructuring activities for the quarter ended March 31, 2014 as follows (in millions):

 

     Accrual
Balance at
December 31,
2013
     Charged
to
Expense
     Cash
Payments
    Non-cash
Adjustments
    Accrual
Balance
at
March 31,
2014
 

Cost of sales

            

Severance and retention

   $ 24.9       $ 0.9       $ (6.9   $ 0.1      $ 19.0   

Product transfer costs

     0.4         3.0         (3.0     0.2        0.6   

Facility decommission costs

     5.3         0.5         (0.7     —          5.1   

Accelerated depreciation

     —           7.5         —          (7.5     —     
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 
   $ 30.6       $ 11.9       $ (10.6   $ (7.2   $ 24.7   
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Operating expenses

            

R&D

   $ 1.4       $ 0.2       $ (0.6   $ —        $ 1.0   

Accelerated depreciation — R & D

     —           0.9         —          (0.9     —     

Selling, general and administrative

     84.7         5.7         (50.7     0.2        39.9   

Share-based compensation restructuring related to Warner Chilcott Acquisition

     —           5.0         —          (5.0     —     

Accelerated depreciation — SG&A

     —           1.1         —          (1.1     —     
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 
   $ 86.1       $ 12.9       $ (51.3   $ (6.8   $ 40.9   
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Total

   $ 116.7       $ 24.8       $ (61.9   $ (14.0   $ 65.6   
  

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

 

25


Table of Contents

During the quarters ended March 31, 2014 and 2013, the Company recognized restructuring charges of $24.8 million and $16.4 million, respectively.

NOTE 17 — Commitments and Contingencies

Legal Matters

The Company and its affiliates are involved in various disputes, governmental and/or regulatory inspections, inquires, investigations and proceedings, and litigation matters that arise from time to time in the ordinary course of business. The process of resolving matters through litigation or other means is inherently uncertain and it is possible that an unfavorable resolution of these matters will adversely affect the Company, its results of operations, financial condition and cash flows. The Company’s general practice is to expense legal fees as services are rendered in connection with legal matters, and to accrue for liabilities when losses are probable and reasonably estimable.

The Company evaluates, on a quarterly basis, developments in legal proceedings and other matters that could cause an increase or decrease in the amount of the liability that is accrued. As of March 31, 2014, the Company’s consolidated balance sheet includes accrued loss contingencies of approximately $230.0 million.

The Company’s legal proceedings range from cases brought by a single plaintiff to mass tort actions and class actions with thousands of putative class members. These legal proceedings, as well as other matters, involve various aspects of the Company’s business and a variety of claims (including, but not limited to, qui tam actions, antitrust, product liability, breach of contract, securities, patent infringement and trade practices), some of which present novel factual allegations and/or unique legal theories. In addition, a number of the matters pending against the Company are at very early stages of the legal process (which in complex proceedings of the sort faced by us often extend for several years). As a result, some matters have not yet progressed sufficiently through discovery and/or development of important factual information and legal issues to enable the Company to estimate a range of possible loss. In those proceedings in which plaintiffs do request publicly quantified amounts of relief, the Company does not believe that the quantified amounts are meaningful because they are merely stated jurisdictional limits, exaggerated and/or unsupported by the evidence or applicable burdens of proof.

Antitrust Litigation

Actos ® Litigation. On December 31, 2013 two putative class actions were filed in the federal district court ( United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund v. Takeda Pharmaceutical Co. Ltc. Et al., S.D.N.Y. Civ. No. 13-9244 and Crosby Tugs LLC v. Takeda Pharmaceuticals Co. Ltd., et al. , S.D.N.Y. Civ. No. 13-9250) against Actavis plc and certain of its affiliates alleging that Watson’s 2010 patent lawsuit settlement with Takeda Pharmaceutical, Co. Ltd. related to Actos ® (pioglitazone hydrochloride and metformin “Actos ® ”) is unlawful. Several additional complaints have been filed ( Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-0116; International Union of Operating Engineers Local 132 Health & Welfare Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-0644; A.F. of L. – A.G.C. Building Trades Welfare Plan v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-1493; NECA-IBEW Welfare Trust Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-1661; Painters District Council No. 30 Health and Welfare Fund v. Takeda Pharmaceutical Co. Ltd., et al. , N.D.Ill. Civ. No. 14-1601; City of Providence v. Takeda Pharmaceutical Co. Ltd., et al. , D.R.I. Civ. No. 14-125; Minnesota and North Dakota Bricklayers and Allied Craftworkers Health Fund and Greater Metropolitan Hotel Employers-Employees Health and Welfare Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-1691; Local 17 Hospitality Benefit Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-1788; New England Electrical Workers Benefit Fund v. Takeda Pharmaceutical Co. Ltd., et al. , S.D.N.Y. Civ. No. 14-2424; Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund v. Takeda Pharmaceutical Co. Ltd. , Civ. No. 14-2378; Dennis Kreish v. Takeda Pharmaceutical Co. Ltd., et al. , Civ. No. 14-2137; Man-U Service Contract Trust Fund and Teamsters Union Local 115 Health & Welfare Fund v. Takeda Pharmaceutical Co. Ltd., et al. , Civ. No. 14-2846). The Company anticipates additional claims or lawsuits based on the same or similar allegations may be filed. Prior to the filing of the Painters District Council and City of Providence complaints, plaintiffs in the cases pending in federal court in New York filed a consolidated class action complaint. Plaintiffs in the Painters District Council and City of Providence cases subsequently voluntarily dismissed their complaints in Illinois and Rhode Island, respectively, and refiled their complaints in the Southern District of New York where all the cases have been referred to the same judge. The complaints, each asserted on behalf of putative classes of indirect purchaser plaintiffs, generally allege an overall scheme that included Watson improperly delaying the launch of its generic version of Actos ® in exchange for substantial payments from Takeda in violation of federal and state antitrust and consumer protection laws. The complaint seeks declaratory and injunctive relief and unspecified damages.

 

26


Table of Contents

The Company believes that it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Androgel ® Litigation.  On January 29, 2009, the U.S. Federal Trade Commission and the State of California filed a lawsuit in the United States District Court for the Central District of California (Federal Trade Commission, et. al. v. Watson Pharmaceuticals, Inc., et. al., USDC Case No. CV 09-00598) alleging that the September 2006 patent lawsuit settlement between Watson Pharmaceuticals, Inc. (“Watson” now known as Actavis, Inc.) and Solvay Pharmaceuticals, Inc. (“Solvay”), related to AndroGel ® 1% (testosterone gel) CIII is unlawful. The complaint generally alleged that Watson improperly delayed its launch of a generic version of Androgel ® in exchange for Solvay’s agreement to permit Watson to co-promote Androgel ® for consideration in excess of the fair value of the services provided by Watson, in violation of federal and state antitrust and consumer protection laws. The complaint sought equitable relief and civil penalties. On February 2 and 3, 2009, three separate lawsuits alleging similar claims were filed in the United States District Court for the Central District of California by various private plaintiffs purporting to represent certain classes of similarly situated claimants (Meijer, Inc., et. al., v. Unimed Pharmaceuticals, Inc., et. al., USDC Case No. EDCV 09-0215); (Rochester Drug Co-Operative, Inc. v. Unimed Pharmaceuticals Inc., et. al., Case No. EDCV 09-0226); (Louisiana Wholesale Drug Co. Inc. v. Unimed Pharmaceuticals Inc., et. al, Case No. EDCV 09-0228). On April 8, 2009, the Court transferred the government and private cases to the United States District Court for the Northern District of Georgia. On April 21, 2009 the State of California voluntarily dismissed its lawsuit against Watson without prejudice. The Federal Trade Commission and the private plaintiffs in the Northern District of Georgia filed amended complaints on May 28, 2009. The private plaintiffs amended their complaints to include allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay’s patent in the FDA “Orange Book,” and sham litigation. Additional actions alleging similar claims have been filed in various courts by other private plaintiffs purporting to represent certain classes of similarly situated direct or indirect purchasers of Androgel ® ( Stephen L. LaFrance Pharm., Inc. d/b/a SAJ Dist. v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09-1507); ( Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Unimed Pharms. Inc., et al., D. NJ Civ. No. 09-1856); ( Scurto v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09-1900); ( United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund v. Unimed Pharms., Inc., et al., D. MN Civ. No. 09-1168); ( Rite Aid Corp. et al. v. Unimed Pharms., Inc. et al., M.D. PA Civ. No. 09-1153 ); (Walgreen Co., et al. v. Unimed Pharms., LLC, et al., MD. PA Civ. No. 09-1240); ( Supervalu, Inc. v. Unimed Pharms., LLC, et al, ND. GA Civ. No. 10-1024); ( LeGrand v. Unimed Pharms., Inc., et al ., ND. GA Civ. No. 10-2883); ( Jabo’s Pharmacy Inc. v. Solvay Pharmaceuticals, Inc., et al ., Cocke County, TN Circuit Court Case No. 31,837). On April 20, 2009, Watson was dismissed without prejudice from the Stephen L. LaFrance action pending in the District of New Jersey. On October 5, 2009, the Judicial Panel on Multidistrict Litigation transferred all actions then pending outside of the United States District Court for the Northern District of Georgia to that district for consolidated pre-trial proceedings ( In re: AndroGel ® Antitrust Litigation (No. II), MDL Docket No. 2084), and all currently-pending related actions are presently before that court. On February 22, 2010, the judge presiding over all the consolidated litigations related to Androgel ® then pending in the United States District Court for the Northern District of Georgia granted Watson’s motions to dismiss the complaints, except the portion of the private plaintiffs’ complaints that include allegations concerning sham litigation. Final judgment in favor of the defendants was entered in the Federal Trade Commission’s action on April 21, 2010. On April 25, 2012, the Court of Appeals affirmed the dismissal. On June 17, 2013, the Supreme Court issued a decision, holding that the settlements between brand and generic drug companies which include a payment from the brand company to the generic competitor must be evaluated under a “rule of reason” standard of review and ordered the case remanded (the “Supreme Court Androgel Decision”). On July 20, 2010, the plaintiff in the Fraternal Order of Police action filed an amended complaint adding allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay’s patent in the FDA’s “Orange Book,” and sham litigation similar to the claims raised in the direct purchaser actions. On October 28, 2010, the judge presiding over MDL 2084 entered an order pursuant to which the LeGrand action, filed on September 10, 2010, was consolidated for pretrial purposes with the other indirect purchaser class action as part of MDL 2084 and made subject to the Court’s February 22, 2010

 

27


Table of Contents

order on the motion to dismiss. In February 2012, the direct and indirect purchaser plaintiffs and the defendants filed cross-motions for summary judgment, and on June 22, 2012, the indirect purchaser plaintiffs, including Fraternal Order of Police, LeGrand and HealthNet, filed a motion for leave to amend and consolidate their complaints. On September 28, 2012, the district court granted summary judgment in favor of the defendants on all outstanding claims. The plaintiffs then appealed. On September 12 and 13, 2013, respectively, the indirect purchaser plaintiffs and direct purchaser plaintiffs filed motions with the district court, asking the court for an indicative ruling that it would vacate its final order on the parties’ summary judgment motions and conduct further proceedings in light of the Supreme Court Androgel Decision, should the Court of Appeals remand the case to the district court. On October 23, 2013, the district court granted the motions. The court of appeals recently remanded the case back to the district court which has granted plaintiffs relief under Rule 60(b) of the Federal Rules of Civil Procedure, vacating the ruling from which plaintiffs appealed. The remanded case is still in its early stages and the parties are working to determine the appropriate scope of additional discovery for both the class allegations and merits.

The Company believes it has substantial meritorious defenses and intends to defend itself vigorously. However, these actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Cipro ® Litigation.  Beginning in July 2000, a number of suits were filed against Watson and certain Company affiliates including The Rugby Group, Inc. (“Rugby”) in various state and federal courts alleging claims under various federal and state competition and consumer protection laws. Several plaintiffs have filed amended complaints and motions seeking class certification. Approximately 42 cases were filed against Watson, Rugby and other Company entities. Many of these actions have been dismissed. Actions remain pending in various state courts, including California, Kansas, Tennessee, and Florida. The actions generally allege that the defendants engaged in unlawful, anticompetitive conduct in connection with alleged agreements, entered into prior to Watson’s acquisition of Rugby from Sanofi Aventis (“Sanofi”), related to the development, manufacture and sale of the drug substance ciprofloxacin hydrochloride, the generic version of Bayer’s brand drug, Cipro ® . The actions generally seek declaratory judgment, damages, injunctive relief, restitution and other relief on behalf of certain purported classes of individuals and other entities. The action pending in Kansas, which the court previously terminated administratively, has been reopened. Plaintiffs’ in that case moved for class certification on February 21, 2014; defendants’ opposition to the class certification motion is due May 23, 2014. There has been no action in the cases pending in Florida and Tennessee since 2003. In the action pending in the California Superior Court for the County of San Diego ( In re: Cipro Cases I & II, JCCP Proceeding Nos. 4154 & 4220 ), on July 21, 2004, the California Court of Appeal ruled that the majority of the plaintiffs would be permitted to pursue their claims as a class. On August 31, 2009, the California Superior Court granted defendants’ motion for summary judgment, and final judgment was entered on September 24, 2009. On October 31, 2011, the California Court of Appeal affirmed the Superior Court’s judgment. On December 13, 2011, the plaintiffs filed a petition for review in the California Supreme Court. On February 15, 2012, the California Supreme Court granted review. On September 12, 2012, the California Supreme Court entered a stay of all proceedings in the case pending a decision from the United States Supreme Court in the Federal Trade Commission v. Actavis matter involving Androgel, described above. The California Supreme Court lifted the stay on June 26, 2013 following the ruling by the United States Supreme Court. Plaintiffs and Bayer recently announced that they have reached an agreement to settle the claims pending against Bayer. Plaintiffs are continuing to pursue claims against the generic defendants, including Watson and Rugby. The remaining parties submitted letter briefs to the court regarding the impact of the Supreme Court Androgel Decision. Response briefs were submitted on February 14, 2014. Amicus briefs were submitted on March 18, 2014 and the parties filed responses to such briefs on April 24, 2014.

In addition to the pending actions, the Company understands that various state and federal agencies are investigating the allegations made in these actions. Sanofi has agreed to defend and indemnify Watson and its affiliates in connection with the claims and investigations arising from the conduct and agreements allegedly undertaken by Rugby and its affiliates prior to Watson’s acquisition of Rugby, and is currently controlling the defense of these actions.

Doryx Litigation.  In July 2012, Mylan Pharmaceuticals Inc. (“Mylan”) filed a complaint against Warner Chilcott and Mayne Pharma International Pty. Ltd. (“Mayne”) in the U.S. District Court for the Eastern District of Pennsylvania alleging that Warner Chilcott and Mayne prevented or delayed Mylan’s generic

 

28


Table of Contents

competition to Warner Chilcott’s Doryx ® products in violation of U.S. federal antitrust laws and tortiously interfered with Mylan’s prospective economic relationships under Pennsylvania state law. ( Mylan Pharmaceuticals Inc. v. Warner Chilcott Public Limited Co., et al. , E.D.Pa. No. 12-cv-03824). In the complaint, Mylan seeks unspecified treble and punitive damages and attorneys’ fees.

Following the filing of Mylan’s complaint, three putative class actions were filed against Warner Chilcott and Mayne by purported direct purchasers, and one putative class action was filed against Warner Chilcott and Mayne by purported indirect purchasers, each in the same court. On December 5, 2013 an additional complaint was filed by the International Union of Operating Engineers Local 132 Health and Welfare Fund on behalf of another group of purported indirect purchasers. Warner has moved to dismiss this new complaint. In each case the plaintiffs allege that they paid higher prices for Warner Chilcott’s Doryx ® products as a result of Warner Chilcott’s and Mayne’s alleged actions preventing or delaying generic competition in violation of U.S. federal antitrust laws and/or state laws. Plaintiffs seek unspecified injunctive relief, treble damages and/or attorneys’ fees. The court consolidated the purported class actions and the action filed by Mylan and ordered that all the pending cases proceed on the same schedule.

On February 5, 2013, four retailers, including HEB Grocery, Safeway, Inc., Supervalu, Inc. and Walgreen Co., filed in the same court a civil antitrust complaint in their individual capacities against Warner Chilcott and Mayne regarding Doryx ® . ( Walgreen Co., Safeway, Inc., Supervalu, Inc. and HEB Grocery Co, LP. v. Warner Chilcott Public Limited Co., et al. , E.D.Pa. No. 13-cv-00658). On March 28, 2013, another retailer, Rite Aid, filed a similar complaint in the same court. ( Rite Aid Corp. v. Warner Chilcott Public Limited Co., et al. , E.D.Pa. No. 13-cv-01644). Both retailer complaints recite similar facts and assert similar legal claims for relief to those asserted in the related cases described above. Both retailer complaints have been consolidated with the cases described above.

Warner Chilcott and Mayne moved to dismiss the claims of Mylan, the direct purchasers, the indirect purchasers and the retailers. On November 21, 2012, the Federal Trade Commission filed with the court an amicus curiae brief supporting the plaintiffs’ theory of relief. On June 12, 2013, the court entered a denial, without prejudice, of Warner Chilcott and Mayne’s motions to dismiss. Discovery is ongoing in the consolidated cases. On November 13, 2013, Warner Chilcott and Mayne reached an agreement in principle to settle the claims of the Direct Purchaser Plaintiff class representatives for $15 million. On February 18, 2014 the court preliminarily approved the settlement and set a hearing for final approval on June 9, 2014. On April 18, 2014, Warner Chilcott and Mayne reached an agreement in principle to settle the claims of the opt-out direct purchasers for $10.9 million. The settlement remains subject to execution of definitive agreements and court approval. Indirect Purchasers Plaintiffs’ motion for class certification remains pending before the court, with no class having yet been certified. Warner Chilcott, Mylan and the class of indirect purchasers each filed motions for summary judgment on March 10, 2014. Trial in the remaining cases is scheduled to commence in June 2014.

The Company intends to vigorously defend its rights in the litigations. However, it is impossible to predict with certainty the outcome of any litigation, and the Company can offer no assurance as to when the lawsuits will be decided, whether the Company will be successful in its defense and whether any additional similar suits will be filed. The plaintiffs collectively seek approximately $1.2 billion in compensatory damages, which includes approximately $1.05 billion in purported damages of the Direct Purchaser Plaintiffs and opt-out direct purchaser plaintiffs with whom the company has settlements in principle. The Company believes these amounts are unfounded and without merit. However, any award of compensatory damages could be subject to trebling. If these claims are successful such claims could adversely affect the Company and could have a material adverse effect on the Company’s business, financial condition, results of operation and cash flows.

Lidoderm ® Litigation. On November 8, 2013, a putative class action was filed in the federal district court ( Drogueria Betances, Inc. v. Endo Pharmaceuticals, Inc., et al. , E.D.Pa. Civ. No. 13-06542) against Actavis, Inc. and certain of its affiliates alleging that Watson’s 2012 patent lawsuit settlement with Endo Pharmaceuticals, Inc. related to Lidoderm ® (lidocaine transdermal patches, “Lidoderm ® ”) is unlawful. The complaint, asserted on behalf of putative classes of direct purchaser plaintiffs, generally alleges that Watson improperly delayed launching generic versions of Lidoderm ® in exchange for substantial payments from Endo Pharmaceuticals in violation of federal and state antitrust and consumer protection laws. The complaint seeks declaratory and injunctive relief and damages. Additional lawsuits contain similar allegations have followed on behalf of putative classes of direct purchasers ( Rochester Drug Cooperative, Inc. v. Endo Pharmaceuticals,

 

29


Table of Contents

Inc., et al. , E.D.Pa. Civ. No. 13-7217; American Sales Co. LLC, v. Endo Pharmaceuticals, Inc., et al., M.D.Tenn. Civ. No. 14-0022; Cesar Castillo, Inc. v. Endo Pharmaceuticals, Inc., et al. , M.D.Tenn. Civ. No. 14-0569) and suits filed on behalf of a putative class of end-payer plaintiffs ( United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund v.Teikoku Pharma USA, Inc., et al., N.D.Cal. Civ. No. 13-5257; Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Teikoku Pharma USA, Inc., et al. , N.D.Cal. Civ. No. 13-5280; City of Providence v. Teikoku Pharma USA, Inc., et al. , D.R.I. Civ. No. 13-771; Greater Metropolitan Hotel Employers – Employees Health and Welfare Fund v. Endo Pharmaceuticals, Inc., et al. , D.Minn. Civ. No. 13-3399; Pirelli Armstrong Retiree Medical Benefits Trust v. Teikoku Pharma USA, Inc., et al. , M.D.Tenn. Civ. No. 13-1378; Plumbers and Pipefitters Local 178 Health and Welfare Trust Fund v. Teikoku Pharma USA, Inc., et al. , N.D.Cal. Civ. No. 13-5938; Philadelphia Federation of Teachers Health and Welfare Fund v. Endo Pharmaceuticals, Inc., et al. , E.D.Pa. Civ. No. 14-0057; International Association of Fire Fighters Local 22 Health & Welfare Fund v. Endo Pharmaceuticals, Inc., et al. , E.D.Pa. Civ. No. 14-0092; Painters District Council No. 30 Health and Welfare Fund v. Teikoku Pharma USA, Inc., et al. , C.D.Cal. Civ. No. 14-0289; Local 17 Hospitality Benefit Fund v. Endo Pharmaceuticals, Inc., et al. , N.D.Cal. Civ. No. 14-0503; Teamsters Local Union 115 Health and Welfare Fund v. Endo Pharmaceuticals, Inc., et al., E.D.Pa. Civ. No. 14-0772; Roller v. Endo Pharmaceuticals, Inc., et al. , N.D.Cal. Civ. No. 14-0792; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R v. Endo Pharmaceuticals, Inc., et al. , M.D.Tenn. Civ. No. 13-1378; NECA-IBEW Welfare Trust v. Endo Pharmaceuticals, Inc., et al. , N.D.Cal. Civ. No. 14-1141; Allied Services Division Welfare Fund v. Endo Pharmaceuticals USA Inc., et al. , E.D.Pa. Civ. No. 14-1548; Irene Kampanis v. Endo Pharmaceuticals, Inc., et al. , E.D.Pa. Civ. No. 14-1562). The Company anticipates additional claims or lawsuits based on the same or similar allegations may be filed. On December 23, 2013, plaintiffs in the United Food and Commercial Workers action filed a motion with the JPML to have all the Lidoderm ® antitrust cases consolidated in the Northern District of California. Plaintiffs in several of the other actions filed objections and argued for consolidation in districts where their suits were filed. The motion was heard by the JPML at a hearing on March 27, 2014 and on April 3, 2014 the JPML consolidated the cases in the Northern District of California. ( In re Lidoderm Antitrust Litigation , N.D. Cal., MDL No. 14-2521). An initial case conference is scheduled for May 9, 2014.

The Company believes it has substantial meritorious defenses and intends to defend itself vigorously. However, these actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Loestrin ® 24 Litigation . On April 5, 2013, two putative class actions were filed in the federal district court ( New York Hotel Trades Council & Hotel Assoc. of New York City, Inc. Health Benefits Fund v. Warner Chilcott Pub. Ltd. Co. , et al. , D.N.J., Civ. No. 13-02178, and United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund v. Warner Chilcott (US), LLC, et al. , E.D.Pa., No. 13-01807) against Actavis, Inc. and certain affiliates alleging that Watson’s 2009 patent lawsuit settlement with Warner Chilcott related to Loestrin ® 24 Fe (norethindrone acetate/ethinyl estradiol tablets and ferrous fumarate tablets, “Loestrin ® 24”) is unlawful. The complaints, both asserted on behalf of putative classes of end-payors, generally allege that Watson and another generic manufacturer improperly delayed launching generic versions of Loestrin ® 24 in exchange for substantial payments from Warner Chilcott, which at the time was an unrelated company, in violation of federal and state antitrust and consumer protection laws. The complaints each seek declaratory and injunctive relief and damages. On April 15, 2013, the plaintiff in New York Hotel Trades withdrew its complaint and, on April 16, 2013, refiled it in the federal court for the Eastern District of Pennsylvania ( New York Hotel Trades Council & Hotel Assoc. of New York City, Inc. Health Benefits Fund v. Warner Chilcott Public Ltd. Co., et al. , E.D.Pa., Civ. No. 13-02000). Additional complaints have been filed by different plaintiffs seeking to represent the same putative class of end-payors (A.F. of L. – A.G.C. Building Trades Welfare Plan v. Warner Chilcott, et al., D.N.J. 13-02456, Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Warner Chilcott Public Ltd. Co., et al. , E.D.Pa. Civ. No. 13-02014 ). Electrical Workers 242 and 294 Health & Welfare Fund v. Warner Chilcott Public Ltd. Co., et al. , E.D.Pa. Civ. No. 13-2862 and City of Providence v. Warner Chilcott Public Ltd. Co., et al. , D.R.I. Civ. No. 13-307 ). The Company anticipates additional claims or lawsuits based on the same or similar allegations may be filed. In addition to the end-payor suits, two lawsuits have been filed on behalf of a class of direct payors ( American Sales Company, LLC v. Warner Chilcott Public Ltd., Co. et al. , D.R.I. Civ. No. 12-347 and Rochester Drug Co-Operative Inc., v. Warner Chilcott (US), LLC, et al. , E.D.Pa. Civ. No. 13-133476). On June 18, 2013, defendants filed a motion with the Judicial Panel on Multidistrict Litigation

 

30


Table of Contents

(“JPML”) to consolidate these cases in one federal district court. After a hearing on September 26, 2013, the JPML issued an order conditionally transferring all related Loestrin ® 24 cases to the federal court for the District of Rhode Island. ( In re Loestrin 24 Fe Antitrust Litigation , D.R.I. MDL No. 13-2472). A preliminary hearing was held on November 4, 2013 after which an amended, consolidated complaint was filed on December 6, 2013. On February 6, 2014, the Company filed a motion to dismiss the direct and indirect purchaser plaintiffs’ complaints. Plaintiffs’ filed oppositions to the motion on March 24, 2014 and the Company filed its responses on April 23, 2014. On February 25, 2014, a group of opt-out direct purchasers filed a complaint based on the same or similar allegations asserted by the direct and indirect purchaser plaintiffs. The Company will have forty-five days after the court rules on the pending motions to dismiss the direct and indirect purchaser plaintiffs’ complaints to respond to the opt-out plaintiffs’ complaint. The consolidated case is still in its early stages and discovery has not yet begun on either the class allegations or merits. The Company anticipates additional claims or lawsuits based on the same or similar allegations.

The Company believes it has substantial meritorious defenses and intends to defend both its brand and generic defendant entities vigorously. However, these actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Paroxetine Investigation . On April 19, 2013, the Office of Fair Trading issued a Statement of Objections against GlaxoSmithKline (“GSK”) and various generic drug companies, including Actavis UK Limited, formerly known as Alpharma Limited, now a subsidiary of the Company, alleging that GSK’s settlements with such generic drug companies improperly delayed generic entry of paroxetine, in violation of the United Kingdom’s competition laws. The Company has not yet responded to the Statement of Objections but believes it has substantial meritorious defenses to the allegations. However, an adverse determination in the matter could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Commercial Litigation

Columbia Laboratories, Inc. Securities Litigation . On June 8, 2012, Watson and certain of its officers were named as defendants in a consolidated amended class action complaint filed in the United States District Court for the District of New Jersey ( In re: Columbia Laboratories, Inc. Securities Litigation , Case No. CV 12-614) by a putative class of Columbia Laboratories’ stock purchasers. The amended complaint generally alleges that between December 6, 2010 and January 20, 2012, Watson and certain of its officers, as well as Columbia Laboratories and certain of its officers, made false and misleading statements regarding the likelihood of Columbia Laboratories obtaining FDA approval of Prochieve ® progesterone gel, Columbia Laboratories’ developmental drug for prevention of preterm birth. Watson licensed the rights to Prochieve ® from Columbia Laboratories in July 2010. The amended complaint further alleges that the defendants failed to disclose material information concerning the statistical analysis of the clinical studies performed by Columbia Laboratories in connection with its pursuit of FDA approval of Prochieve ® . The complaint seeks unspecified damages. On August 14, 2012, the defendants filed a motion to dismiss all of the claims in the amended complaint, which the court granted on June 11, 2013. Plaintiffs filed a second amended complaint on July 11, 2013. Defendants filed motions to dismiss the second amended complaint on August 9, 2013. On October 21, 2013, the court granted the motion to dismiss the second amended complaint. In ruling on the motion to dismiss, the court also ruled that if the plaintiffs seek to further amend the complaint, they must file a motion within thirty days seeking permission to do so. On December 20, 2013, plaintiffs filed a notice of appeal on the district court’s motion to dismiss ruling and filed their opening appellate brief on March 20, 2014. Respondents’ briefs in the appeal were filed on April 9, 2014. The oral argument on the appeal will be held in July 2014. The Company believes it has substantial meritorious defenses and it intends to defend itself vigorously. Additionally, the Company maintains insurance to provide coverage for the claims alleged in the action. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. The action, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Forest Laboratories, Inc. Securities Litigation . On February 21, 2014, Actavis plc and certain of its subsidiaries were named as defendants in a class action complaint filed in state court in New York ( Paul Rosenberg v. Forest Laboratories Inc., et al. , Supreme Court of the State of New York, Case

 

31


Table of Contents

No. 650625/2014) by a putative class of Forest Laboratories, Inc. shareholders. The complaint alleges generally that the Forest Laboratories board members breached their fiduciary duties in pursuit of a sale of the company at an unfair price and through an unfair process. The complaints allege that the Actavis defendants aided and abetted the fiduciary duty breaches. The complaints seek injunctive relief to enjoin the transaction from being consummated. Since the original suit was filed, several additional actions, each making the same basic claims and seeking the same injunctive relief, have been filed. ( Elenor Turberg v. Forest Laboratories, Inc., et al., Supreme Court of the State of New York, Case No. 650579/2014; Vladimir Gusinsky Revocable Trust v. Forest Laboratories Inc., et al. , Supreme Court of the State of New York, Case No. 650588/2014; Bernice Katz v. Forest Laboratories Inc., et al. , Supreme Court of the State of New York, Case No. 650601/2014; Andrew Bailis v. Forest Laboratories Inc., et al. , Supreme Court of the State of New York, Case No. 650791/2014; Booth Family Trust v. Forest Laboratories, Inc., et al. , Delaware Court of Chancery, Case No. 9396-VCP; Ian Alan Holder v. Forest Laboratories, Inc., et al. , Delaware Court of Chancery, Case No. 9400-VCP; Samuel David Scher v. Forest Laboratories, Inc., et al. , Delaware Court of Chancery, Case No. 9401-VCP; Sandra Missakian v. Forest Laboratories, Inc., et al. , Delaware Court of Chancery, Case No. 9407-VCP). These litigations are still in their early stages and discovery has not yet begun. The Company anticipates additional claims or lawsuits based on the same or similar allegations may be filed. The Company believes it has substantial meritorious defenses to the claims alleged. However, these actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Fax Litigation — Medical West Ballas Pharmacy, LTD, et al. v. Anda, Inc., (Circuit Court of the County of St. Louis, State of Missouri, Case No. 08SL-CC00257). In January 2008, Medical West Ballas Pharmacy, LTD, filed a putative class action complaint against Anda, Inc. (“Anda”), a subsidiary of the Company, alleging conversion and alleged violations of the Telephone Consumer Protection Act (“TCPA”) and Missouri Consumer Fraud and Deceptive Business Practices Act. In April 2008, plaintiff filed an amended complaint substituting Anda as the defendant. The amended complaint alleges that by sending unsolicited facsimile advertisements, Anda misappropriated the class members’ paper, toner, ink and employee time when they received the alleged unsolicited faxes, and that the alleged unsolicited facsimile advertisements were sent to the plaintiff in violation of the TCPA and Missouri Consumer Fraud and Deceptive Business Practices Act. The TCPA allows recovery of minimum statutory damages of $500 per violation, which can be trebled if the violations are found to be willful. The complaint seeks to assert class action claims on behalf of the plaintiff and other similarly situated third parties. In April 2008, Anda filed an answer to the amended complaint, denying the allegations. In November 2009, the court granted plaintiff’s motion to expand the proposed class of plaintiffs from individuals for which Anda lacked evidence of express permission or an established business relationship to “All persons who on or after four years prior to the filing of this action, were sent telephone facsimile messages advertising pharmaceutical drugs and products by or on behalf of Defendant.” In November 2010, the plaintiff filed a second amended complaint further expanding the definition and scope of the proposed class of plaintiffs. On December 2, 2010, Anda filed a motion to dismiss claims the plaintiff is seeking to assert on behalf of putative class members who expressly consented or agreed to receive faxes from Defendant, or in the alternative, to stay the court proceedings pending resolution of Anda’s petition to the Federal Communications Commission (“FCC”) (discussed below). On April 11, 2011, the court denied the motion. On May 19, 2011, the plaintiff’s filed their motion seeking certification of a class of entities with Missouri telephone numbers who were sent Anda faxes for the period January 2004 through January 2008. The motion has been briefed. However, the court granted Anda’s motion to vacate the class certification hearing until similar issues are resolved in either or both the pending Nack litigation or with the FCC Petition, both of which are described in more detail below. No trial date has been set in the matter.

On May 1, 2012, an additional action under the TCPA was filed by Physicians Healthsource, Inc., purportedly on behalf of the “end users of the fax numbers in the United States but outside Missouri to which faxes advertising pharmaceutical products for sale by Anda were sent.” ( Physicians Healthsource Inc. v. Anda Inc . S.D. Fla., Civ. No. 12-60798). On July 10, 2012, Anda filed its answer and affirmative defenses. The parties have filed a joint motion to stay the action pending the resolution of the FCC Petition and the FCC’s recently filed Public Notice, described below. On April 17, 2014, the court lifted the stay but has not yet issued a revised scheduling order.

 

32


Table of Contents

Several issues raised in plaintiff’s motion for class certification in the Medical West matter were addressed by the Eighth Circuit Court of Appeals in an unrelated case to which Anda is not a party, Nack v. Walburg , No. 11-1460. Nack concerned whether there is a private right of action for failing to include any opt-out notice on faxes sent with express permission, contrary to a FCC regulation that requires such notice on fax advertisements. The Eighth Circuit granted Anda leave to file an amicus brief and to participate during oral argument in the matter, which was held on September 19, 2012. In its ruling, issued May 21, 2013, the Eighth Circuit held that Walburg’s arguments on appeal amounted to challenges to the FCC’s regulation and that the court lacked jurisdiction to entertain such challenges pursuant to the Hobbs Act and it would otherwise not decide any similar challenges without the benefit of full participation by the FCC. The defendant in Nack has filed a petition for certiorari with the United States Supreme Court.

In a related matter, on November 30, 2010, Anda filed a petition with the FCC, asking the FCC to clarify the statutory basis for its regulation requiring “opt-out” language on faxes sent with express permission of the recipient (the “FCC Petition”). On May 2, 2012, the Consumer & Governmental Affairs Bureau of the FCC dismissed the FCC Petition. On May 14, 2012, Anda filed an application for review of the Bureau’s dismissal by the full Commission, requesting the FCC to vacate the dismissal and grant the relief sought in the FCC Petition. The FCC has not ruled on the application for review. On January 31, 2014, the FCC issued a Public Notice seeking comment on several more recently-filed petitions, all similar to the one Anda filed in 2010. Anda was one of several parties that submitted comments on the Public Notice. Anda believes it has substantial meritorious defenses to the putative class actions brought under the TCPA, and intends to defend the actions vigorously. However, these actions, if successful, could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Mezzion Declaratory Judgment Action.  On April 8, 2014, Warner Chilcott Company, LLC filed a declaratory judgment action against Mezzion Pharma Co. Ltd. (“Mezzion”), a Korean pharmaceutical company formerly known as Dong-A PharmaTech Co. Ltd. ( Warner Chilcott Company, LLC v. Mezzion Pharma Co. Ltd. , N.Y. Sup. Ct., Case No. 14-651094). The suit was filed to protect Warner Chilcott Company, LLC’s rights and interests under an exclusive license and distribution agreement, involving Mezzion’s product udenafil that is used to treat erectile dysfunction and benign prostate hyperplasia. The parties first executed the agreement in 2008 and later amended it 2010. On February 14, 2014, Mezzion sent a notice a breach letter to Warner Chilcott Company, LLC alleging that Warner Chilcott had failed to use commercially reasonable efforts to develop and commercialize the product for the U.S. and Canadian markets. In its notice letter, Mezzion threatened to terminate the exclusive license and distribution agreement as a result of Warner Chilcott’s purported breaches. Warner Chilcott believes that it has not breached the agreement and will prevail in the declaratory judgment action. Mezzion has not yet responded to the complaint. The Company intends to pursue this action vigorously. However, this action, if unsuccessful, could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

West Virginia Prescription Drug Abuse Litigation . On June 26, 2012, the State of West Virginia filed a lawsuit against multiple distributors of prescription drugs, including Anda, Inc., a subsidiary of the Company ( State of West Virginia v. Amerisourcebergen Drug Corporation, et. al., Boone County Circuit Court Civil Case No. 12-C-141 ). The complaint generally alleges that the defendants distributed prescription drugs in West Virginia in violation of state statutes, regulation and common law. The complaint seeks injunctive relief and unspecified damages and penalties. On July 26, 2012, a co-defendant removed the case to the federal court for the Southern District of West Virginia. On March 27, 2013, the court granted plaintiff’s motion to remand the case to state court. On January 3, 2014, plaintiff filed an amended complaint which the defendants moved to dismiss on February 14, 2014. The case is in its preliminary stages and the Company believes it has substantial meritorious defenses to the claims alleged. However, an adverse determination in the case could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

FDA Litigation

In May 2002, Company subsidiary Watson Laboratories, Inc. reached an agreement with the FDA on the terms of a consent decree with respect to its Corona, California manufacturing facility. The court approved the consent decree on May 13, 2002 ( United States of America v. Watson Laboratories, Inc., et. al. , United States District Court for the Central District of California, EDCV-02-412-VAP). The consent decree applies only to the Company’s Corona, California facility and not other manufacturing sites. The decree requires that the Corona, California facility complies with the FDA’s current Good Manufacturing Practices (“cGMP”) regulations.

Pursuant to the agreement, the Company hired an independent expert to conduct inspections of the Corona facility at least once each year. In February 2014 the independent expert concluded its most recent inspection of the Corona facility. At the conclusion of the inspection, the independent expert reported its opinion to the FDA that, based on the findings of the audit of the facility, the FDA’s applicable cGMP requirements, applicable FDA regulatory guidance, and the collective knowledge, education, qualifications and experience of the expert’s auditors and reviewers, the systems at the Corona facility audited and evaluated by the expert are in compliance with the FDA’s cGMP regulations. However, the FDA is not required to accept or agree with the independent expert’s opinion. The FDA has conducted periodic inspections of the Corona facility since the entry of the consent decree, and concluded its most recent general cGMP inspection in April 2014. At the conclusion of the inspection, the FDA inspectors issued a Form 483 to the facility identifying certain observations concerning the instances where the facility failed to follow cGMP regulations. The facility intends to respond to the Form 483 observations. If in the future, the FDA determines that, with respect to its Corona facility, the Company has failed to comply with the consent decree or FDA regulations, including cGMPs, or has failed to adequately address the FDA’s inspectional observations, the consent decree allows the FDA to order a variety of actions to remedy the deficiencies. These actions could include ceasing

 

33


Table of Contents

manufacturing and related operations at the Corona facility, and recalling affected products. Such actions, if taken by the FDA, could have a material adverse effect on the Company, its results of operations, financial position and cash flows.

Patent Litigation

Patent Enforcement Matters

Actonel Once-a-Month.  In August 2008, December 2008 and January 2009, Procter & Gamble’s global branded pharmaceutical business (“PGP”) and Hoffman-La Roche Inc. (“Roche”) received Paragraph IV certification notice letters from Teva Pharmaceutical Industries, Ltd. (together with its subsidiaries “Teva”), Sun Pharma Global, Inc. (“Sun”) and Apotex Inc. and Apotex Corp. (together “Apotex”), respectively, indicating that each such company had submitted to the FDA an Abbreviated New Drug Application (“ANDA”) seeking approval to manufacture and sell generic versions of the Actonel ® 150 mg product (“Actonel ® OaM”). The notice letters contended that Roche’s U.S. Patent No. 7,192,938 (the “‘938 Patent”), a method patent expiring in November 2023 (including a 6-month pediatric extension of regulatory exclusivity) which Roche licensed to PGP with respect to Actonel ® OaM, was invalid, unenforceable or not infringed. PGP and Roche filed patent infringement suits against Teva in September 2008 ( Procter & Gamble Co. et al. v. Teva Pharms. USA, Inc ., Case No. 08-cv-627), Sun in January 2009 ( Procter & Gamble Co. et al. v. Sun Pharma Global, Inc ., Case No. 09-cv-061) and Apotex in March 2009 ( Procter & Gamble Co. et al. v. Apotex Inc. et al ., Case No. 09-cv-143) in the U.S. District Court for the District of Delaware charging each with infringement of the ‘938 Patent. The lawsuits resulted in a stay of FDA approval of each defendant’s ANDA for 30 months from the date of PGP’s and Roche’s receipt of notice, subject to the prior resolution of the matters before the court. The stay of approval of each of Teva’s, Sun’s and Apotex’s ANDAs has expired, and the FDA has tentatively approved Teva’s ANDA with respect to Actonel ® OaM. However, none of the defendants challenged the validity of the underlying U.S. Patent No. 5,583,122 (the “‘122 Patent”), which covers all of the Actonel ® products, including Actonel ® OaM, and does not expire until June 2014 (including a 6-month pediatric extension of regulatory exclusivity). As a result, the Company does not believe that any of the defendants will be permitted to market their proposed generic versions of Actonel ® OaM prior to June 2014.

On February 24, 2010, Warner Chilcott and Roche received a Paragraph IV certification notice letter from Mylan indicating that it had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Actonel ® OaM. The notice letter contends that the ‘938 Patent, which expires in November 2023 and covers Actonel ® OaM, is invalid and/or will not be infringed. Warner Chilcott and Roche filed a patent suit against Mylan in April 2010 in the U.S. District Court for the District of Delaware charging Mylan with infringement of the ‘938 Patent based on its proposed generic version of Actonel ® OaM ( Procter & Gamble Co. et al. v. Mylan Pharms. Inc. , Case No. 10-cv-285). The lawsuit resulted in a stay of FDA approval of Mylan’s ANDA for 30 months from the date of Warner Chilcott’s and Roche’s receipt of notice, subject to prior resolution of the matter before the court. The stay of approval of Mylan’s ANDA has now expired. Since Mylan did not challenge the validity of the underlying ‘122 Patent, which expires in June 2014 (including a 6-month pediatric extension of regulatory exclusivity) and covers all of the Actonel ® products, the Company does not believe that Mylan will be permitted to market its proposed ANDA product prior to the June 2014 expiration of the ‘122 Patent (including a 6-month pediatric extension of regulatory exclusivity).

In October, November and December 2010 and February 2011, Warner Chilcott and Roche received Paragraph IV certification notice letters from Sun, Apotex, Teva and Mylan, respectively, indicating that each such company had amended its existing ANDA covering generic versions of Actonel ® OaM to include a Paragraph IV certification with respect to Roche’s U.S. Patent No. 7,718,634 (the “‘634 Patent”). The notice letters contended that the ‘634 Patent, a method patent expiring in November 2023 (including a 6-month pediatric extension of regulatory exclusivity) which Roche licensed to Warner Chilcott with respect to Actonel ® OaM, was invalid, unenforceable or not infringed. Warner Chilcott and Roche filed patent infringement suits against Sun and Apotex in December 2010, against Teva in January 2011 and against Mylan in March 2011 in the U.S. District Court for the District of Delaware charging each with infringement of the ‘634 Patent. The Company believes that no additional 30-month stay is available in these matters because the ‘634 Patent was listed in the FDA’s Orange Book subsequent to the date on which Sun, Apotex, Teva and Mylan filed their respective ANDAs with respect to Actonel ® OaM. However, the underlying ‘122 Patent, which covers all of the Actonel ® products, including Actonel ® OaM, does not expire until June 2014 (including a 6-month pediatric extension of regulatory exclusivity).

 

34


Table of Contents

Warner Chilcott and Roche’s actions against Teva, Apotex, Sun and Mylan for infringement of the ‘938 Patent and the ‘634 Patent arising from each such party’s proposed generic version of Actonel ® OaM were consolidated for all pretrial purposes (in Case No. 08-cv-627), and a consolidated trial for those suits was previously expected to be held in July 2012. Following an adverse ruling in Roche’s separate ongoing patent infringement suit before the U.S. District Court for the District of New Jersey relating to its Boniva ®  product, in which the court held that claims of the ‘634 Patent covering a monthly dosing regimen using ibandronate were invalid as obvious, Teva, Apotex, Sun and Mylan filed a motion for summary judgment in Warner Chilcott’s Actonel ® OaM patent infringement litigation. In the motion, the defendants sought to invalidate the asserted claims of the ‘938 Patent and ‘634 Patent, which cover a monthly dosing regimen using risedronate, on similar grounds. The previously scheduled trial has been postponed pending resolution of the new summary judgment motion. A hearing on Teva, Apotex, Sun and Mylan’s motions for summary judgment of invalidity and a separate motion by Warner Chilcott and Roche for summary judgment of infringement took place on December 14, 2012. On March 28, 2014, the district court granted the defendants’ motions for summary judgment that the ‘938 and ‘634 patents are invalid. Warner Chilcott and Roche intend to appeal the district court’s decision, and on April 25, 2014, Warner Chilcott and Roche filed a notice of appeal.

To the extent that any ANDA filer also submitted a Paragraph IV certification with respect to U.S. Patent No. 6,165,513 covering Actonel ® OaM, Warner Chilcott has determined not to pursue an infringement action with respect to this patent. While Warner Chilcott and Roche intend to vigorously defend the ‘938 Patent and the ‘634 Patent and protect their legal rights, the Company can offer no assurance as to when the lawsuits will be decided, whether the lawsuits will be successful or that a generic equivalent of Actonel ® OaM will not be approved and enter the market prior to the expiration of the ‘938 Patent and the ‘634 Patent in 2023 (including, in each case, a 6-month pediatric extension of regulatory exclusivity).

Asacol HD.  In September 2011, Warner Chilcott received a Paragraph IV certification notice letter from Zydus Pharmaceuticals USA, Inc. (together with its affiliates, “Zydus”) indicating that Zydus had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Warner Chilcott’s Asacol ® 800 mg product (“ASACOL HD”). Zydus contends that Warner Chilcott’s U.S. Patent No. 6,893,662, expiring in November 2021 (the “‘662 Patent”), is invalid and/or not infringed. In addition, Zydus indicated that it had submitted a Paragraph III certification with respect to Medeva Pharma Suisse AG’s (“Medeva”) U.S. Patent No. 5,541,170 (the “‘170 Patent”) and U.S. Patent No. 5,541,171 (the “‘171 Patent”), formulation and method patents which the Company exclusively licenses from Medeva covering Warner Chilcott’s ASACOL products, consenting to the delay of FDA approval of the ANDA product until the ‘170 Patent and the ‘171 Patent expire in July 2013. In November 2011, Warner Chilcott filed a lawsuit against Zydus in the U.S. District Court for the District of Delaware charging Zydus with infringement of the ‘662 Patent ( Warner Chilcott Co., LLC v. Zydus Pharms. (USA) Inc. et al ., Case No. 1:2011cv01105). The lawsuit results in a stay of FDA approval of Zydus’ ANDA for 30 months from the date of Warner Chilcott’s receipt of the Zydus notice letter, subject to prior resolution of the matter before the court. While the Company intends to vigorously defend the ‘662 Patent and pursue its legal rights, the Company can offer no assurance as to when the pending litigation will be decided, whether the lawsuit will be successful or that a generic equivalent of ASACOL HD will not be approved and enter the market prior to the expiration of the ‘662 Patent in 2021. In January 2014 the parties reached an agreement in principle to settle the case. Under the terms of the settlement, Zydus can launch its ANDA product in November 2015, or can launch an authorized generic version of Asacol HD in July 2016 if it fails to obtain FDA approval of its ANDA by such time. The settlement is subject to execution of definitive documentation.

Atelvia.  In August and October 2011 and March 2012, Warner Chilcott received Paragraph IV certification notice letters from Watson Laboratories, Inc. — Florida (together with Actavis, Inc. (formerly Watson Pharmaceuticals, Inc.) and its subsidiaries, “Actavis”), Teva and Ranbaxy Laboratories Ltd. (together with its affiliates, “Ranbaxy”) indicating that each had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Atelvia ® 35 mg tablets (“Atelvia ® ”). The notice letters contend that Warner Chilcott’s U.S. Patent Nos. 7,645,459 (the “‘459 Patent”) and 7,645,460 (the “‘460 Patent”), two formulation and method patents expiring in January 2028, are invalid, unenforceable and/or not infringed. Warner Chilcott filed a lawsuit against Actavis in October 2011 ( Warner Chilcott Co., LLC et al. v. Watson Pharms., Inc. et al ., Case No. 11-cv-5989), against Teva in November 2011 ( Warner Chilcott Co., LLC et al.

 

35


Table of Contents

v. Teva Pharms. USA, Inc. et al. , Case No. 11-cv-6936) and against Ranbaxy in April 2012 ( Warner Chilcott Co., LLC et al. v.Ranbaxy, Inc. et al ., Case No. 12-cv-2474) in the U.S. District Court for the District of New Jersey charging each with infringement of the ‘459 Patent and ‘460 Patent. On August 21, 2012, the United States Patent and Trademark Office issued to the Company U.S. Patent No. 8,246,989 (the “‘989 Patent”), a formulation patent expiring in January 2026. The Company listed the ‘989 Patent in the FDA’s Orange Book, each of Actavis, Teva and Ranbaxy amended its Paragraph IV certification notice letter to contend that the ‘989 Patent is invalid and/or not infringed, and Warner Chilcott amended its complaints against Actavis, Teva and Ranbaxy to assert the ‘989 Patent. The lawsuits result in a stay of FDA approval of each defendant’s ANDA for 30 months from the date of Warner Chilcott’s receipt of such defendant’s original notice letter, subject to prior resolution of the matter before the court. The Company does not believe that the amendment of its complaints against Actavis, Teva and Ranbaxy to assert the ‘989 Patent will result in any additional 30-month stay. In addition, none of the ANDA filers certified against the ‘122 Patent, which covers all of the Actonel ® and Atelvia ® products and expires in June 2014 (including a 6-month pediatric extension of regulatory exclusivity). On October 2, 2013, Actavis divested its ANDA to Amneal Pharmaceuticals. In September 2013, Warner Chilcott received a Paragraph IV certification notice letter from Impax Laboratories, Inc. indicating that it had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Atelvia ® . Warner Chilcott filed a lawsuit against Impax on October 23, 2013, asserting infringement of the ‘459, ‘460, and ‘989 patents. The lawsuit results in a stay of FDA approval of Impax’s ANDA for 30 months from the date of Warner Chilcott’s receipt of the notice letter, subject to prior resolution of the matter before the court. Impax has not been consolidated with the Teva, Amneal and Ranbaxy case. No trial date has been set in any action.

While the Company intends to vigorously defend the ‘459 Patent, the ‘460 Patent and the ‘989 Patent and pursue its legal rights, the Company can offer no assurance as to when the lawsuits will be decided, whether such lawsuits will be successful or that a generic equivalent of Atelvia ® will not be approved and enter the market prior to the expiration of the ‘989 Patent in 2026 and/or the ‘459 Patent and the ‘460 Patent in 2028.

Enablex ® . On December 18, 2013, Warner Chilcott Company LLC and Warner Chilcott (US) LLC sued Torrent Pharmaceuticals Ltd. and Torrent Pharma Inc. (together “Torrent”) in the United States District Court for the District of Delaware, alleging that sales of Torrent’s darifenacin tablets, a generic version of Warner Chilcott’s Enablex ® , would infringe U.S. Patent No. 6,106,864 (the ‘864 patent) ( Warner Chilcott Company LLC et al. v. Torrent Pharms. Ltd, et al., Case No. 13cv02039). The complaint seeks injunctive relief. Pursuant to the provisions of the Hatch-Waxman Act, the FDA is precluded from granting final approval to Torrent until the earlier of thirty months after the generic applicant provided Warner Chilcott with notice of its ANDA filing or the generic applicant prevails in the pending litigation, subject to any other exclusivities, such as a first filer 180 day market exclusivity. Under the settlement agreements entered into in the third quarter of 2010 to resolve outstanding patent litigation, each of Teva, Anchen Pharmaceuticals, Inc. and Watson agreed not to launch a generic version of Enablex ® until the earlier of March 15, 2016 (or June 15, 2016, if a 6-month pediatric extension of regulatory exclusivity is granted) or, among other circumstances, (i) the effective date of any license granted to a third party for a generic Enablex product or (ii) in the event a third party launches a generic Enablex ® product “at risk” and injunctive relief is not sought or granted.

The Company believes it has meritorious claims to prevent Torrent from launching a generic version of Enablex. However, if Torrent prevails in the pending litigation or launches a generic version of Enablex ® before the pending litigation is finally resolved, it could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Generess ® Fe.  On November 22, 2011, Warner Chilcott Company sued Mylan Inc., Mylan Pharmaceuticals Inc. and Famy Care Ltd. in the United States District Court for the District of New Jersey, alleging that sales of norethindrone and ethinyl estradiol and ferrous fumarate tablets, a generic version of Warner Chilcott’s Generess ® Fe tablets (which is exclusively licensed by Warner Chilcott), would infringe U.S. Patent No. 6,667,050 (the ‘050 patent) ( Warner Chilcott Company LLC v. Mylan Inc., et al., Case No. 11cv6844). The complaint seeks injunctive relief. On December 12, 2011 Warner Chilcott sued Lupin Ltd. and Lupin Pharmaceuticals, Inc. in the United States District Court for the District of New Jersey, alleging that sales of Lupin’s generic version of Generess ® Fe would infringe the ‘050 patent. ( Warner Chilcott Company LLC v. Lupin Ltd., et al., Case No. 11cv7228). The complaint seeks injunctive relief. Warner Chilcott’s lawsuits against Mylan and Lupin have been consolidated and remain pending. Pursuant to the provisions of the Hatch-

 

36


Table of Contents

Waxman Act, the FDA is precluded from granting final approval to the generic applicants until the earlier of thirty months after the generic applicant provided Warner Chilcott with notice of its abbreviated new drug application filing or the generic applicant prevails in the pending litigation. The trial concluded on February 21, 2014, and the court has not yet issued its decision. On April 15, 2014 Warner Chilcott reached an agreement with Mylan to settle their case. Under the terms of the settlement, Mylan may launch its ANDA product on April 1, 2015, or Mylan can launch an authorized generic version of Generess on October 1, 2015. The litigation against Lupin is still pending. On April 29, 2014, the district court ruled that the ‘050 patent is invalid. Warner Chilcott intends to appeal the decision. The Company believes Warner Chilcott has meritorious claims on appeal. However, if Lupin prevails in the pending litigation or launches a generic version of Generess ® Fe before the pending litigation is finally resolved or April 1, 2015, it could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Lo Loestrin ® FE.  In July 2011 and April 2012, Warner Chilcott received Paragraph IV certification notice letters from Lupin and Actavis indicating that each had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Warner Chilcott’s oral contraceptive, Lo Loestrin ® Fe. The notice letters contend that the ‘394 Patent and Warner Chilcott’s U.S. Patent No. 7,704,984 (the “‘984 Patent”), which cover Lo Loestrin ® Fe and expire in 2014 and 2029, respectively, are invalid and/or not infringed. Warner Chilcott filed a lawsuit against Lupin in September 2011 ( Warner Chilcott Co., LLC v. Lupin Ltd. et al ., Case No. 11-cv-5048) and against Actavis in May 2012 ( Warner Chilcott Co., LLC v. Watson Labs., Inc. et al ., Case No. 12-cv-2928) in the U.S. District Court for the District of New Jersey charging each with infringement of the ‘394 Patent and the ‘984 Patent. Warner Chilcott granted Lupin and Actavis covenants not to sue on the ‘394 Patent with regard to their ANDAs seeking approval for a generic version of Lo Loestrin ® Fe, and the court dismissed all claims concerning the ‘394 Patent in the Lupin and the Actavis litigations in December 2012 and February 2013, respectively. The lawsuits result in a stay of FDA approval of each defendant’s ANDA for 30 months from the date of Warner Chilcott’s receipt of such defendant’s notice letter, subject to the prior resolution of the matter before the court. On October 2, 2013, Actavis divested its ANDA to Amneal Pharmaceuticals. On October 4, 2013, Amneal Pharmaceuticals was substituted for Actavis as a defendant. A joint trial began on October 7, 2013 and concluded on October 17, 2013. On January 17, 2014, the district court issued its decision that the ‘984 Patent is valid and infringed by Lupin’s and Amneal’s respective ANDAs. On January 21, 2014, Lupin filed a notice of appeal to the United States Court of Appeals for the Federal Circuit (Appeal No. CAFC 14-1262). The appeal is currently pending.

In September 2013, Warner Chilcott received Paragraph IV certification notice letter from Mylan and Famy Care indicating that they had submitted to the FDA an ANDA seeking approval to manufacture and sell a generic version of Warner Chilcott’s oral contraceptive, Lo Loestrin ® Fe. The notice letter contends that Warner Chilcott’s ‘984 Patent, which covers Lo Loestrin ® Fe and expires in 2029, is invalid and/or not infringed. Warner Chilcott filed a lawsuit against Mylan in October 2013 ( Warner Chilcott Co., LLC v. Mylan Inc. et al ., Case No. 13-cv-06560) in the U.S. District Court for the District of New Jersey charging Mylan and Famy Care with infringement of the ‘984 Patent. The complaint seeks injunctive relief. The lawsuit results in a stay of FDA approval of Mylan and Famy Care’s ANDA for 30 months from the date of Warner Chilcott’s receipt of the notice letter, subject to the prior resolution of the matter before the court. The Mylan/Famy Care case is not consolidated with the Lupin case and is currently pending in the district court.

While the Company intends to vigorously defend the ‘984 Patent and pursue its legal rights, it can offer no assurance as to when the lawsuits will be decided, whether such lawsuits will be successful or that a generic equivalent of Lo Loestrin ® Fe will not be approved and enter the market prior to the expiration of the ‘984 Patent in 2029.

Rapaflo ® .  On June 17, 2013, Actavis, Inc., Watson Laboratories, Inc., and Kissei Pharmaceutical Co., Ltd. sued Hetero USA Inc., Hetero Labs Limited, and Hetero Labs Limited, Unit 3 (collectively, “Hetero”) in the United States District Court for the District of Delaware, alleging that sales of silodosin tablets, a generic version of Actavis’ Rapaflo ® tablets, would infringe U.S. Patent No. 5,387,603 (the ‘603 patent) ( Kissei Pharm. Co., Ltd. et al v. Hetero USA Inc. et al., Case No. 13cv01091). The complaint seeks injunctive relief. On June 17, 2013 Actavis, Inc., Watson Laboratories, Inc., and Kissei Pharmaceutical Co., Ltd. sued Sandoz Inc. in the United States District Court for the District of Delaware, alleging that sales of Sandoz’s generic version of Rapaflo ® would infringe the ‘603 patent. ( Kissei Pharm. Co., Ltd. et al v. Sandoz, Inc., Case No. 13cv01092). The complaint seeks injunctive relief. Actavis and Kissei’s lawsuits against Hetero and

 

37


Table of Contents

Sandoz have been consolidated and remain pending. Pursuant to the provisions of the Hatch-Waxman Act, the FDA is precluded from granting final approval to the generic applicants prior to April 8, 2016. The Company believes it has meritorious claims to prevent the generic applicants from launching a generic version of Rapaflo. However, if a generic applicant prevails in the pending litigation or launches a generic version of Rapaflo before the pending litigation is finally resolved, it could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Patent Defense Matters

Bayer Patent Litigation.  In August 2012, Bayer Pharma AG (together with its affiliates, “Bayer”) filed a complaint against Warner Chilcott in the U.S. District Court for the District of Delaware alleging that Warner Chilcott’s manufacture, use, offer for sale, and/or sale of its Lo Loestrin ® Fe oral contraceptive product infringes Bayer’s U.S. Patent No. 5,980,940 ( Bayer Intellectual Property GMBH et al. v. Warner Chilcott Co., LLC et al ., Case No. 12-cv-1032). In the complaint, Bayer seeks injunctive relief and unspecified monetary damages for the alleged infringement. In December 2012, Bayer amended the complaint to add a patent interference claim seeking to invalidate the Company’s ‘984 Patent, which covers the Lo Loestrin ® Fe product.

Although it is impossible to predict with certainty the outcome of any litigation, the Company believes that it has a number of strong defenses to the allegations in the complaints and intends to vigorously defend the litigations. These cases are in the early stages of litigation, and an estimate of the potential loss, or range of loss, if any, to the Company relating to these proceedings is not possible at this time.

Ibandronate Tablets (Generic version of Boniva ® ).  On September 21, 2007, Hoffmann-La Roche Inc. sued Cobalt Laboratories, Inc. and Cobalt Pharmaceuticals Inc. (both of which were subsequently acquired by Watson in 2009) in the United States District Court for the District of New Jersey, alleging that sales of Ibandronate Tablets, a generic version of Hoffmann-La Roche’s Boniva ® tablets, would infringe U.S. Patent Nos. 4,927,814 (the ‘814 Patent); 6,294,196 (the ‘196 Patent); and 7,192,938 (the ‘938 Patent) ( Hoffmann-La Roche Inc. v. Cobalt Pharmaceuticals Inc., et. al., Case No. 07cv4540 ). The complaint sought damages and injunctive relief. Thereafter, Hoffmann-La Roche asserted additional claims, alleging infringement of U.S. Patent Nos. 7,410,957 (the ‘957 Patent) and 7,718,634 (the ‘634 patent) against Cobalt, and the parties entered into stipulations to dismiss Hoffman-La Roche’s claims related to the ‘196 and the ‘938 Patent. On August 24, 2010, the District Court granted Hoffmann-La Roche’s motion for summary judgment that Cobalt would infringe at least one claim of the ‘814 patent. On March 17, 2012, the ‘814 patent expired, leaving the ‘957 and ‘634 patents as the only patents in suit. On May 7, 2012, the District Court granted the Company’s motion for summary judgment that certain claims of the ‘634 patent are invalid. In June 2012, the Company began selling its generic version of Boniva ® . On October 1, 2012, the District Court granted Cobalt’s motion for summary judgment that certain claims of the ‘957 patent are invalid. On January 25, 2013 the District Court denied Plaintiffs’ motion for reconsideration of the summary judgment decisions finding the ‘634 patent and ‘957 patent claims invalid. The plaintiff appealed. The Court of Appeals heard oral arguments on the appeal on December 6, 2012. On April 11, 2014, the Federal Circuit affirmed the district court’s decision that the ‘957 and ‘634 patents are invalid. The Company believes it has substantial meritorious defenses to the case. However, the Company has sold and is continuing to sell its generic version of Boniva ® . Therefore, an adverse final appellate determination that one of the patents in suit is valid and infringed could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Oxymorphone Extended-Release Tablets (Generic version of Opana ® ER) . On December 11, 2012, Endo Pharmaceuticals Inc. (“Endo”) sued Actavis and certain of its affiliates in the United States District Court for the Southern District of New York, alleging that sales of the Company’s 7.5 mg and 15 mg oxymorphone extended-release tablets, generic versions of Endo’s Opana ® ER, infringe U.S. Patent Nos. 7,851,482; 8,309,122; and 8,329,216, which the USPTO recently issued or Endo recently acquired ( Endo Pharms. Inc. v. Actavis Inc. et al ., Case No. 12-cv-8985). On July 11, 2013, the FDA approved Actavis’ 5 mg, 10 mg, 20 mg, 30 mg, and 40 mg oxymorphone extended-release tablets. On August 6, 2013, Endo filed a motion for a preliminary injunction seeking to prevent Actavis from selling its 5 mg, 10 mg, 20 mg, 30 mg, and 40 mg oxymorphone extended-release tablets. On September 12, 2013, the Court denied Endo’s motion for a preliminary injunction and Actavis began selling its generic versions of Opana ® ER. On September 17, 2013, Endo filed a motion for an injunction pending appeal, which the Federal Court of Appeals for the Federal Circuit denied on November 21, 2013. On January 9, 2014, the Federal Circuit heard oral arguments on Endo’s appeal of the district court’s denial of the motion for a preliminary injunction. On March 31, 2014,

 

38


Table of Contents

the Federal Circuit reversed the district court’s denial of Endo’s motion for a preliminary injunction and remanded the matter to the district court for further consideration. The Company believes it has substantial meritorious defenses to the case. However, Actavis has sold and is continuing to sell its generic versions of Opana ® ER, 5mg, 7.5 mg, 10 mg, 15 mg, 20 mg, 30 mg and 40 mg. Therefore, an adverse final determination that one of the patents in suit is valid and infringed could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Tranexamic Acid Tablets (Generic version of Lysteda ® ).  On July 7, 2011, Ferring B.V. sued Watson in the United States District Court for the District of Nevada, alleging that sales of the Company’s tranexamic acid tablets, a generic version of Ferring’s Lysteda ® tablets, would infringe U.S. Patent No. 7,947,739 (“the ‘739 patent”) ( Ferring B.V. v. Watson Pharmaceuticals, Inc., et. al., Case No. 3:11-cv-00481 ). On November 25, 2011, Ferring filed a second complaint in the District of Nevada alleging that sales of Actavis’ tranexamic acid tablets would infringe U.S. Patent No. 8,022,106 (“the ‘106 patent”). ( Ferring B.V. v. Watson Pharmaceuticals, Inc., et. al., Case No. 3:11-cv-00853 ). On November 9, 2012, Ferring filed a third complaint in the District of Nevada alleging that sales of Actavis’ tranexamic acid tablets would infringe U.S. Patent No. 8,273,795 (“the ‘795 patent”) ( Ferring B.V. v. Watson Pharmaceuticals, Inc., et. al., Case No. 2:12-cv-01935 ). The cases are still pending. The District Court has consolidated all three cases. On January 3, 2013, Actavis began selling its generic version of Lysteda ® . On September 6, 2013, Ferring filed a fourth complaint in the District of Nevada alleging that sales of Actavis’ tranexamic acid tablets would infringe U.S. Patent No. 8,487,055 (“the ‘055 patent”) ( Ferring B.V. v. Actavis, Inc., et. al., Case No. 3:13-cv-00477 ). The fourth complaint also seeks damages for the alleged infringement of the ‘739, ‘106, ‘759, and ‘055 patents by Actavis’ sales of its generic version of Lysteda ® . The fourth case has not been consolidated with the first three cases, and Actavis has filed a motion to dismiss that action. The motion is pending. Trial regarding the ‘739, ‘106 and ‘759 patents began on January 21, 2014, and on January 30, 2014, the Judge tentatively ruled that the ‘739, ‘106 and ‘759 patents are valid and infringed by Watson’s ANDA product. On April 15, 2014, the district court entered judgment that Watson’s products infringe the ‘739, ‘106 and ‘759 patents and entered an injunction preventing the Company from further sales. On April 15, 2014, the Company filed a notice of appeal. On April 16, 2014, the Company filed a motion to stay the injunction pending appeal in the Federal Circuit. On April 28, 2014, the Federal Circuit granted the motion to stay the district court’s injunction. The Company believes it has substantial meritorious defenses to the case and that the district court erred in its decision. However, Actavis has sold and is continuing to sell its generic version of Lysteda ® . Therefore, an adverse final determination that one of the patents in suit is valid and infringed could have an adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Product Liability Litigation

Actonel Litigation.  Warner Chilcott is a defendant in approximately 249 cases and a potential defendant with respect to approximately 383 unfiled claims involving a total of approximately 640 plaintiffs and potential plaintiffs relating to the Warner Chilcott’s bisphosphonate prescription drug Actonel ® . The claimants allege, among other things, that Actonel ® caused them to suffer osteonecrosis of the jaw (“ONJ”), a rare but serious condition that involves severe loss or destruction of the jawbone, and/or atypical fractures of the femur (“AFF”). All of the cases have been filed in either federal or state courts in the United States. Warner Chilcott is in the initial stages of discovery in these litigations. The 383 unfiled claims involve potential plaintiffs that have agreed, pursuant to a tolling agreement, to postpone the filing of their claims against Warner Chilcott in exchange for Warner Chilcott’s agreement to suspend the statutes of limitations relating to their potential claims. In addition, Warner Chilcott is aware of four purported product liability class actions that were brought against Warner Chilcott in provincial courts in Canada alleging, among other things, that Actonel ® caused the plaintiffs and the proposed class members who ingested Actonel ® to suffer atypical fractures or other side effects. It is expected that these plaintiffs will seek class certification. Of the approximately 644 total Actonel ® -related claims, approximately 121 include ONJ-related claims, approximately 506 include AFF-related claims and approximately four include both ONJ and AFF-related claims. In some of the cases, manufacturers of other bisphosphonate products are also named as defendants. Plaintiffs have typically asked for unspecified monetary and injunctive relief, as well as attorneys’ fees. Warner Chilcott is reviewing these lawsuits and potential claims and intends to defend these claims vigorously.

 

39


Table of Contents

Sanofi-Aventis U.S. LLC (“Sanofi”), which co-promoted Actonel ® with Warner Chilcott in the United States through the end of 2013 pursuant to a collaboration agreement, is a defendant in some of Warner Chilcott’s Actonel ® product liability cases. Sanofi and Warner Chilcott continue to co-promote Actonel ® in other countries pursuant to the collaboration agreement. Under the collaboration agreement, Sanofi has agreed to indemnify Warner Chilcott, subject to certain limitations, for 50% of the losses from any product liability claims in Canada relating to Actonel ® and for 50% of the losses from any product liability claims in the United States and Puerto Rico relating to Actonel ® brought prior to April 1, 2010, which included approximately 90 claims relating to ONJ and other alleged injuries that were pending as of March 31, 2010. Pursuant to the April 2010 amendment to the collaboration agreement, Warner Chilcott will be fully responsible for any product liability claims in the United States and Puerto Rico relating to Actonel ® brought on or after April 1, 2010. Warner Chilcott may be liable for product liability, warranty or similar claims in relation to products acquired from The Procter & Gamble Company (“P&G”) in October 2009 in connection with Warner Chilcott’s acquisition (the “PGP Acquisition”) of P&G’s global branded pharmaceutical’s business (“PGP”), including ONJ-related claims that were pending as of the closing of the PGP Acquisition. Warner Chilcott’s agreement with P&G provides that P&G will indemnify Warner Chilcott, subject to certain limits, for 50% of Warner Chilcott’s losses from any such claims, including approximately 88 claims relating to ONJ and other alleged injuries, pending as of October 30, 2009.

In May 2013, Warner Chilcott entered into a settlement agreement in respect of up to 74 ONJ-related claims, subject to the acceptance thereof by the individual respective claimants. Warner Chilcott recorded a charge in the six months ended June 30, 2013 in the amount of $2 million in accordance with ASC Topic 450 “Contingencies” in connection with Warner Chilcott’s entry into the settlement agreement. This charge represents Warner Chilcott’s current estimate of the aggregate amount that is probable to be paid by Warner Chilcott in connection with the settlement agreement. In September 2013, Warner Chilcott entered into a separate settlement agreement in respect of up to 53 additional ONJ-related claims, subject to the acceptance thereof by the individual respective claimants. Assuming that all of the relevant claimants accept the settlement agreements, approximately 554 Actonel ® -related claims would remain outstanding, of which approximately 31 include ONJ-related claims, approximately 506 include AFF-related claims and approximately four include both ONJ and AFF-related claims. However, it is impossible to predict with certainty (i) the number of such individual claimants that will accept the settlement agreement or (ii) the outcome of any litigation with claimants rejecting the settlement or other plaintiffs and potential plaintiffs with ONJ, AFF or other Actonel ® -related claims, and the Company can offer no assurance as to the likelihood of an unfavorable outcome in any of these matters. An estimate of the potential loss, or range of loss, if any, to the Company relating to proceedings with (i) claimants rejecting the settlement or (ii) other plaintiffs and potential plaintiffs with ONJ, AFF or other Actonel ® -related claims is not possible at this time. The Company believes it has substantial meritorious defenses to these cases and Warner Chilcott maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Alendronate Litigation. Beginning in 2010, a number of product liability suits were filed against the Company and certain of its affiliates, as well as other manufacturers and distributors of alendronate, for personal injuries including femur fractures and ONJ allegedly arising out of the use of alendronate. Approximately 132 cases are pending against Watson and/or its affiliates in various state and federal courts, representing claims by approximately 177 plaintiffs. These cases are generally at their preliminary stages. Fifty-five lawsuits also name as a defendant Cobalt Laboratories, which Watson acquired in 2009 as part of its acquisition of the Arrow Group, in connection with Cobalt’s manufacture and sale of alendronate. Twenty cases naming the Company and/or Cobalt were consolidated for pre-trial proceedings as part of a multi-district litigation (MDL) matter pending in the United States District Court for the District of New Jersey ( In re: Fosamax (Alendronate Sodium) Products Liability Litigation , MDL No. 2243). In 2012, the United States District Court for the District of New Jersey granted the Company’s motion to dismiss all of the cases then pending against the Company in the New Jersey MDL. Several plaintiffs appealed the dismissal to the United States Court of Appeals for the Third Circuit and that appeal is still pending. Any cases filed against the Company in the District of New Jersey MDL after the Court’s January 2012 dismissal are subject to a case management order that calls for their dismissal unless plaintiffs can establish that their claims should be exempted from the 2012 dismissal order. To date, no plaintiff with a post-January 2012 complaint in the District of New Jersey against the Company has moved for such exemption and all such cases have been dismissed. Eleven other cases were part of an MDL in the United States District Court for the Southern District of New York, where the Company

 

40


Table of Contents

filed a similar motion to dismiss. The Court granted, in part, that motion to dismiss, which has resulted in the dismissal of eight cases. Watson and/or Cobalt have also been served with nine cases that are part of consolidated litigation in the California Superior Court (Orange County). The Orange County Court partially granted a similar motion to dismiss, but the Company has not yet been able to determine how that will affect the cases filed against and served on it. Generic drug manufacturers similarly situated to the Company have petitioned the U.S. Supreme Court for review of the California decision. All cases pending in the state court of Missouri have been discontinued against the Company. The remaining 120 active cases are part of a mass tort coordinated proceeding in the Superior Court of New Jersey, Atlantic County. In that state court proceeding, the Court recently granted, in part, a motion to dismiss. As a result, the Company has obtained the stipulated dismissal of 294 cases. The Company believes that it has substantial meritorious defenses to these cases and maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if our indemnification arrangements or insurance do not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Androderm Litigation. Beginning in 2014, a number of product liability suits were filed against the Company and certain of its affiliates, as well as other manufacturers and distributors of testosterone products, for personal injuries including but not limited to cardiovascular events allegedly arising out of the use of Androderm ® . Actavis, Inc. and one or more of its subsidiaries have been served in three actions ( Hall v. Actavis, plc, et al., No. 2:14-cv-00453 (D. Nev.); ( Smyer v. Actavis plc, et al., No: BC537755 (Cal. Super. Ct., L.A. County); and a proposed personal injury class action ( McGill, et al. v. Actavis, Inc., et al. , No. 2:14-cv-02177 (E.D. Pa.)). The Company is aware of three additional cases that have not been served ( Couwenhoven v. Abbott Laboratories, Inc., et al. , No. 5:14-cv-667, (C.D. Ca.); Davis, et al., v. Actavis Pharma, Inc., et al., No. 2:14-cv-000596, (D. Nev.); and Schwalm v. AbbVie Inc., et al., No. 1:14-cv-2899, (N.D. Ill.)), and anticipates that additional suits will be filed. These cases are in the initial stages and discovery has not yet commenced. The Company believes that it has substantial meritorious defenses to these cases and maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Fentanyl Transdermal System Litigation.  Beginning in 2009, a number of product liability suits were filed against Actavis and other Company affiliates, as well as other manufacturers and distributors of fentanyl transdermal system products, for personal injuries or deaths allegedly arising out of the use of the fentanyl transdermal system products. Actavis settled the majority of these cases in November 2012. Since that time, additional cases have been resolved individually and/or are in the process of being resolved. There are approximately 5 cases that remain pending against the Company in state and federal courts that have not been resolved. Discovery is ongoing. The Company believes it has substantial meritorious defenses to these cases and maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Metoclopramide Litigation.  Beginning in 2009, a number of product liability suits were filed against certain Company affiliates, including legacy Actavis and Watson companies, as well as other manufacturers and distributors of metoclopramide, for personal injuries allegedly arising out of the use of metoclopramide. Approximately 1,190 cases remain pending against Actavis, Watson and/or its affiliates in state and federal courts, representing claims by multiple plaintiffs. These cases are generally in their preliminary stages and discovery is ongoing. The Company believes that, with respect to the majority of the cases against the legacy Watson companies, it will be defended in and indemnified by Pliva, Inc., an affiliate of Teva, from whom the Company purchased its metoclopramide product line in late 2008. With respect to the cases pending against the legacy Actavis companies, the Company is actively defending them. The Company believes that it has substantial meritorious defenses to these cases and maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if our indemnification arrangements or insurance do not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

 

41


Table of Contents

Propoxyphene Litigation.  Beginning in 2011, a number of product liability suits were filed against Watson and certain of its affiliates, as well as other manufacturers and distributors of propoxyphene, for personal injuries including adverse cardiovascular events or deaths allegedly arising out of the use of propoxyphene. Cases are pending against Watson and/or its affiliates in various state and federal courts, representing claims by approximately 1,385 plaintiffs. Approximately 77 of the cases naming Watson were consolidated for pre-trial proceedings as part of a multi-district litigation (MDL) matter pending in the United States District Court for the Eastern District of Kentucky ( In re: Darvocet, Darvon, and Propoxyphene Products Liability Litigation , MDL No. 2226). Four of the MDL cases were voluntarily dismissed by plaintiffs with prejudice. On June 22, 2012, the court hearing the MDL cases granted the generic defendants’ joint motion to dismiss the remaining MDL cases. Approximately 34 of the dismissed cases were appealed by the plaintiffs to the United States Court of Appeals for the Sixth Circuit. Briefing on the appeal is now complete and oral argument has been set for May 7, 2014. In addition to the 77 consolidated cases, the MDL court remanded seven (7) additional cases to California state court. Defendants jointly filed a petition with the Sixth Circuit to appeal that remand, which petition was denied, as was the subsequently filed petition for rehearing on the petition to appeal. The Sixth Circuit’s Order denying Defendants’ petition for rehearing was recently vacated due to the Ninth Circuit’s granting of a petition for en banc rehearing on the same issue. The Ninth Circuit case involves remand by a federal court in California to state court in a propoxyphene case involving the same defendants. The Sixth Circuit has now stayed these 7 cases pending the ruling of the Ninth Circuit on the issue. Depending on the Ninth Circuit’s ruling, these cases will either be sent back to the MDL court, which is expected to dismiss them on the same basis that it dismissed the other cases against the generic defendants, or they will be remanded to California state court to be litigated in that forum. Approximately 35 of the cases naming Watson or its affiliates have been consolidated in a state court proceeding pending in the Superior Court of California in Los Angeles. After the consolidation, the defendants jointly removed all of the cases to various US District Courts in California after which counsel for the plaintiffs moved to remand the cases back to state court. The various US district Court Judges granted the motions. The defendants jointly appealed the remand of these cases to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the granting of the motions to remand. The defendants then jointly petitioned the Ninth Circuit for an en banc rehearing of the defendants’ appeal. The Ninth Circuit recently granted the defendants’ Petition and oral argument is scheduled for June 16, 2014. Depending on the Ninth Circuit’s ruling, these cases will either be sent back to the MDL court (which is expected to dismiss them on the same basis on which it dismissed the other cases against the generic defendants) or they will be remanded to the California state court to be litigated in that forum. If the cases return to state court, they will be in their preliminary stages and we intend to file demurrers and/or motions to dismiss. The Company believes that it has substantial meritorious defenses to these cases and maintains product liability insurance against such cases. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. These actions, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Qui Tam and Related Litigation

Governmental Investigation and False Claims Act Litigation.  Beginning in February 2012, Warner Chilcott, along with several of its current and former employees in its sales organization and certain third parties, received subpoenas from the United States Attorney for the District of Massachusetts. The subpoena received by Warner Chilcott seeks information and documentation relating to a wide range of matters, including sales and marketing activities, payments to people who are in a position to recommend drugs, medical education, consultancies, prior authorization processes, clinical trials, off-label use and employee training (including with respect to laws and regulations concerning off-label information and physician remuneration), in each case relating to all of Warner Chilcott’s current key products. The Company is cooperating in responding to the subpoena but cannot predict or determine the impact of this inquiry on its future financial condition or results of operations.

The Company is aware of three  qui tam  complaints filed by former Warner Chilcott sales representatives and unsealed in February and March 2013 and March 2014 ( United States ex rel. Lisa A. Alexander and James P. Goan. v. Warner Chilcott PLC, et al. , D. Mass. No. 11-10545 and United States et al. ex rel. Chris Wible, v.

 

42


Table of Contents

Warner Chilcott PLC, et al. , D. Mass. No. 11-11143; People of the State of California ex rel. Schirrell Johnson, Lisa A. Alexander and James P. Goan v. Warner Chilcott PLC, et al ., CA Super. Ct., Case No. BC496620-MHS). The unsealed federal qui tam  complaints allege that Warner Chilcott violated Federal and state false claims acts through the promotion of all of Warner Chilcott’s current key products by, among other things, making improper claims concerning the products, providing kickbacks to physicians and engaging in improper conduct concerning prior authorizations. The complaints seek, among other things, treble damages, civil penalties of up to eleven thousand dollars for each alleged false claim and attorneys’ fees and costs. Other similar complaints may exist under seal. The United States of America has elected not to intervene at this time in the unsealed  Alexander/Goan or Wible qui tam  actions, stating at the times of the relevant seal expirations that its investigation of the allegations raised in the relevant complaint was continuing and, as such, it was not able to decide at such time whether to intervene in the action. The United States of America may later seek to intervene, and its election does not prevent the plaintiffs/relators from litigating the actions. The government has, however, successfully moved the court in the Alexander and Goan litigation to stay that proceeding through June 2, 2014. On December 2, 2013, plaintiff in the Wible action filed a notice of voluntary dismissal with respect to all of its claims except his for retaliation and claims under CA and IL state law. Warner Chilcott moved to dismiss the remaining cause of action in this Wible complaint on December 20, 2013. While the Company’s motion was pending, the plaintiff in Wible moved for leave to file a third amended complaint which the court granted thus rendering the Company’s motion to dismiss moot. The State of California declined to intervene in the recently unsealed Johnson/Alexander/Goan qui tam action. Warner Chilcott intends to vigorously defend itself in the litigations. However, these cases are in the early stages of litigation, it is impossible to predict with certainty the outcome of any litigation, and the Company can offer no assurance as to when the lawsuits will be decided, whether Warner Chilcott will be successful in its defense and whether any additional similar suits will be filed. If these claims are successful such claims could adversely affect the Company and could have a material adverse effect on the Company’s business, financial condition, results of operation and cash flows.

Governmental Reimbursement Investigations and Drug Pricing Litigation.  In November 1999, Schein Pharmaceutical, Inc., now known as Actavis Pharma, Inc. was informed by the U.S. Department of Justice that it, along with numerous other pharmaceutical companies, is a defendant in a qui tam action brought in 1995 under the U.S. False Claims Act currently pending in the U.S. District Court for the Southern District of Florida (the “Florida Qui Tam Action”). The Company has not been served in the qui tam action. A qui tam action is a civil lawsuit brought by an individual or a company (the “qui tam relator”) for an alleged violation of a federal statute, in which the U.S. Department of Justice has the right to intervene and take over the prosecution of the lawsuit at its option. Pursuant to applicable federal law, the qui tam action is under seal as to Actavis, Inc. The Company believes that the qui tam action relates to whether allegedly improper price reporting by pharmaceutical manufacturers led to increased payments by Medicare and/or Medicaid. The Company believes that the Florida Qui Tam Action against the Company was dismissed without prejudice while still sealed as to the Company. Subsequently, the Company also received and responded to notices or subpoenas from the Attorneys General of various states, including Florida, Nevada, New York, California and Texas, relating to pharmaceutical pricing issues and whether allegedly improper actions by pharmaceutical manufacturers led to excessive payments by Medicare and/or Medicaid. On June 26, 2003, the Company received a request for records and information from the U.S. House Committee on Energy and Commerce in connection with that committee’s investigation into pharmaceutical reimbursements and rebates under Medicaid. The Company produced documents in response to the request. Other state and federal inquiries regarding pricing and reimbursement issues are anticipated.

The Company and certain of its subsidiaries also are named as defendants in various lawsuits filed by numerous states and qui tam relators, including Wisconsin, Kentucky, Illinois, Mississippi, Missouri, South Carolina, Utah, Kansas and Louisiana captioned as follows: State of Wisconsin v. Abbott Laboratories, et al., Case No. 04-cv-1709, Wisconsin Circuit Court for Dane County; State of Wisconsin, ex rel., et al. v. Actavis Mid Atlantic LLC, et al., Case No. 11-cv-5544, Wisconsin Circuit Court for Dane County; Commonwealth of Kentucky v. Alpharma, Inc., et al., Case Number 04-CI-1487, Kentucky Circuit Court for Franklin County; State of Illinois v. Abbott Laboratories, Inc. et al., Civil Action No. 05-CH-02474, Illinois Circuit Court for Cook County; State of Mississippi v. Abbott Laboratories, Inc. et al., Civil Action No. G2005-2021 S/2, Mississippi Chancery Court of Hinds County; State of Missouri ex rel. Jeremiah W. (Jay) Nixon v. Mylan Laboratories, et al, Case No. 054-2486, Missouri Circuit Court of St. Louis; State of South Carolina and Henry D. McMaster v. Watson Pharmaceuticals (New Jersey), Inc., In the Court of

 

43


Table of Contents

Common Pleas for the Fifth Judicial Circuit, State of South Carolina, County of Richland, C.A. No. 2006-CP-40-7152; State of South Carolina and Henry D. McMaster v. Watson Pharmaceuticals (New Jersey), Inc., In the Court of Common Pleas for the Fifth Judicial Circuit, State of South Carolina, County of Richland, C.A. No. 2006-CP-40-7155; State of Utah v. Actavis U.S., Inc., et al., In the Third Judicial District Court of Salt Lake County, Civil No. 07-0913719; State of Kansas ex rel. Steve Six v. Watson Pharmaceuticals, Inc. and Watson Pharma, Inc., Case Number: 08CV2228, District Court of Wyandotte County, Kansas, Civil Court Department; and State of Louisiana V. Abbott Laboratories, Inc., et al., Case No. 596144, Parish of East Baton Rouge, 19 th Judicial District.

In 2011, Watson settled certain claims made against it by a relator in a qui tam action brought against the Company on behalf of the United States. The settlement of that qui tam action resolved all claims on behalf of the United States asserted in that action except for claims relating to the federal share of Medicaid payments made by the States of Alabama, Alaska, Kentucky, Idaho, Illinois, South Carolina and Wisconsin. The Company subsequently settled all claims, including the claims on behalf of the United States, brought by Alabama. In addition, the Company has reached settlements with the states of the Louisiana, Missouri and Kansas and has an agreement in principle with the state of South Carolina though the Company has yet to reach definitive agreement with that state. The court in the Utah case recently dismissed that state’s claims against the Company. The case against Watson on behalf of Kentucky was tried in November 2011. The jury reached a verdict in Watson’s favor on each of Kentucky’s claims against Watson. An agreed form of judgment has been entered and the case now has been dismissed with prejudice. The case against Watson on behalf of Mississippi was tried from November 2012 through April 2013. On August 28, 2013, the court issued a ruling in favor of the state and awarded the state $12.4 million in compensatory damages and civil penalties, and on March 20, 2014 issued its ruling imposing an additional $17.9 million in punitive damages. The Company intends to appeal both the original and punitive damage awards.

With regard to the remaining drug pricing actions, the Company believes that it has meritorious defenses and intends to vigorously defend itself in those actions. The Company continually monitors the status of these actions and may settle or otherwise resolve some or all of these matters on terms that the Company deems to be in its best interests. However, the Company can give no assurance that it will be able to settle the remaining actions on terms it deems reasonable, or that such settlements or adverse judgments in the remaining actions, if entered, will not exceed the amounts of the liability reserves. Additional actions by other states, cities and/or counties are anticipated. These actions and/or the actions described above, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

Medicaid Drug Reimbursement Litigation.  In December 2009, the Company learned that numerous pharmaceutical companies, including certain subsidiaries of the Company, were named as defendants in a qui tam action pending in the United States District Court for the District of Massachusetts ( United States of America ex rel. Constance A. Conrad v. Abbott Laboratories, Inc. et. al., USDC Case No. 02-CV-11738-NG). The seventh amended complaint, which was served on certain of the Company’s subsidiaries in December 2009, alleges that the defendants falsely reported to the United States that certain pharmaceutical products were eligible for Medicaid reimbursement and thereby allegedly caused false claims for payment to be made through the Medicaid program. In July 2011, the plaintiff served a tenth amended complaint that unseals the action in its entirety and continues to allege the previously asserted claims against certain subsidiaries of the Company. The Company’s subsidiaries named in the action together with all other named defendants filed a Joint Motion to Dismiss the Tenth Amended Complaint on December 9, 2011. On February 25, 2013, the court granted the motion to dismiss as to all defendants. The plaintiff may appeal. On September 11, 2013, a new action was filed against certain Company subsidiaries as well as Warner Chilcott and numerous other pharmaceutical company defendants by the State of Louisiana based on the same core set of allegations as asserted in the Conrad qui tam action. The state filed the case in state court and defendants removed it to the federal district court. Plaintiff’s motion to remand the case back to state court is still pending. Additional actions alleging similar claims could be asserted. The Company believes that it has meritorious defenses to the claims and intends to vigorously defend itself against such allegations. However, these actions or similar actions, if successful, could adversely affect the Company and could have a material adverse effect on the Company’s business, results of operations, financial condition and cash flows.

 

44


Table of Contents

The Company and its affiliates are involved in various other disputes, governmental and/or regulatory inspections, inquires, investigations and proceedings that could result in litigation, and other litigation matters that arise from time to time. The process of resolving matters through litigation or other means is inherently uncertain and it is possible that an unfavorable resolution of these matters will adversely affect the Company, its results of operations, financial condition and cash flows.

 

 

45


Table of Contents

NOTE 18 — Subsequent Events

Akorn

On April 17, 2014, the Company entered into agreements with Akorn, Inc. and Hi-Tech Pharmacal Co. Inc. to purchase four currently marketed products and one product under development for cash consideration. The closing of the purchase agreements are contingent upon the consummation of Akorn’s acquisition of Hi-Tech. The agreements include three products marketed under Abbreviated New Drug Applications; Ciprofloxacin Hydrochloride Ophthalmic Solution, Levofloxacin Ophthalmic Solution and Lidocaine Hydrochloride Jelly, and one product marketed under a New Drug Application: Lidocaine/Prilocaine Topical Cream.

Silom Medical Company

On April 1, 2014, the Company announced the acquisition of the Silom Medical Company, a privately held generic pharmaceutical company focused on developing and marketing therapies in Thailand, for consideration of approximately $100.0 million in cash. The acquisition of Silom Medical immediately elevates the Company into a top-five position in the Thai generic pharmaceutical market, with leading positions in the ophthalmic and respiratory therapeutic categories and a strong cardiovascular franchise.

Valeant

During the second quarter of 2014, the Company and Valeant terminated our existing co-promotion agreements relating to Zovirax and Cordan ® Tape. Prior to this termination, we co-promoted Zovirax ® cream (acyclovir 5%) to obstetricians and gynecologists in the U.S. and Valeant co-promoted Actavis Pharma’s Cordran ® Tape (flurandrenolide) product in the U.S. Under terms of the agreement related to the co-promotion of Zovirax ® cream, we utilized our existing Actavis Pharma sales and marketing structure to promote the product and received a co-promotion fee from sales generated by prescriptions written by our defined targeted physician group. The fees we earned under the Zovirax cream co-promotion arrangement were recognized in other revenues in the period in which the revenues are earned. Under the terms of the Cordran ® Tape co-promotion agreement, Valeant utilized its existing Dermatology sales and marketing structure to promote the product, and received a co-promotion fee on sales. The fees we paid under the Cordran Tape arrangement were recognized in the period incurred as an operating expense.

 

46


Table of Contents
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion of our financial condition and the results of operations should be read in conjunction with the “Consolidated Financial Statements” and notes thereto included elsewhere in this Quarterly Report on Form 10-Q (“Quarterly Report”) and our audited consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2013 (the “Annual Report”). This discussion contains forward-looking statements that are subject to known and unknown risks, uncertainties and other factors that may cause our actual results to differ materially from those expressed or implied by such forward-looking statements. These risks, uncertainties and other factors include, among others, those identified under “Risk Factors” in our Annual Report, and elsewhere in this Quarterly Report.

In prior periods, our consolidated financial statements presented the accounts of Actavis, Inc. On May 16, 2013, Actavis plc was incorporated in Ireland as a private limited company and re-registered effective September 18, 2013 as a public limited company. It was established for the purpose of facilitating the business combination between Actavis, Inc. and Warner Chilcott plc (“Warner Chilcott”). On October 1, 2013, pursuant to the transaction agreement dated May 19, 2013 among Actavis, Inc., Warner Chilcott, the Company, Actavis Ireland Holding Limited, Actavis W.C. Holding LLC (now known as Actavis W.C. Holding Inc.) and Actavis W.C. Holding 2 LLC (now known as Actavis W.C. Holding 2 Inc.) (“MergerSub”), (i) the Company acquired Warner Chilcott (the “Warner Chilcott Acquisition”) pursuant to a scheme of arrangement under Section 201, and a capital reduction under Sections 72 and 74, of the Irish Companies Act of 1963 where each Warner Chilcott ordinary share was converted into 0.160 of a Company ordinary share (the “Company Ordinary Shares”), or $5,833.9 million in equity consideration, and (ii) MergerSub merged with and into Actavis, Inc., with Actavis, Inc. as the surviving corporation in the merger (the “Merger” and, together with the Warner Chilcott Acquisition, the “Transactions”).

References throughout to “ordinary shares” refer to Actavis Inc.’s Class A common shares, par value $0.0033 per share, prior to the consummation of the Transactions and to the Company’s ordinary shares, par value $0.0001 per share, since the consummation of the Transactions.

References throughout to “we,” “our,” “us,” the “Company” or “Actavis” refer to financial information and transactions of Watson Pharmaceuticals, Inc. prior to January 23, 2013, Actavis, Inc. from January 23, 2013 until October 1, 2013 and Actavis plc on and subsequent to October 1, 2013.

Overview

We are an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic, branded generic, brand name (“brand” or “branded”), biosimilar and over-the-counter (“OTC”) pharmaceutical products. We also develop and out-license generic pharmaceutical products primarily in Europe through our Medis third-party business. The Company operates manufacturing, distribution, research and development (“R&D”) and administrative facilities in many of the world’s established and growing international markets, including the United States of America (“U.S.”), Canada and Puerto Rico (together “North America”), and its key international markets around the world (“International”).

2014 Significant Business Developments

During 2014, we announced the following transactions that impacted our results of operations and will continue to have an impact on our future operations.

Acquisition of Forest Laboratories

On February 17, 2014, we entered into a Merger Agreement (the “Forest Merger Agreement”) by and among the Company, Tango US Holdings Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (“US Holdco”), Tango Merger Sub 1 LLC, a Delaware limited liability company and a direct wholly owned subsidiary of US Holdco (“Merger Sub 1”), Tango Merger Sub 2 LLC, a Delaware limited liability company and a direct wholly owned subsidiary of US Holdco (“Merger Sub 2” and, together with Merger Sub 1, the “Merger Subs”) and Forest Laboratories, Inc., a Delaware corporation (“Forest”).

Forest is a leading, fully integrated, specialty pharmaceutical company largely focused on the United States market. Forest markets a portfolio of branded drug products and develops new medicines to treat patients suffering from diseases principally in the following therapeutic areas: central nervous system, cardiovascular, gastrointestinal, respiratory, anti-infective, and cystic fibrosis.

As a result of the transaction, the Company incurred costs of $14.2 million in the three months ended March 31, 2014 and anticipates incurring additional acquisition related costs throughout the remainder of the year ending December 31, 2014.

 

47


Table of Contents

Silom Medical Company

On April 1, 2014, the Company announced the acquisition of the Silom Medical Company, a privately held generic pharmaceutical company focused on developing and marketing therapies in Thailand, for consideration of approximately $100.0 million in cash. The acquisition of Silom Medical immediately elevates the Company into a top-five position in the Thai generic pharmaceutical market, with leading positions in the ophthalmic and respiratory therapeutic categories and a strong cardiovascular franchise.

Metronidazole 1.3% Vaginal Gel

On May 1, 2013, we entered into an agreement to acquire the worldwide rights to Valeant Pharmaceuticals International, Inc.’s (“Valeant”) metronidazole 1.3% vaginal gel antibiotic development product, a topical antibiotic for the treatment of bacterial vaginosis, which is being accounted for as a business combination. Under the terms of the agreement, we acquired the product upon U.S. Food and Drug Administration (“FDA”) approval on March 25, 2014 for acquisition accounting consideration of approximately $62.3 million, which includes the fair value contingent consideration of $50.3 million and upfront and milestone payments of $12.0 million, of which $9.0 million was incurred in the quarter ended March 31, 2014. As a result of this transaction the Company recognized intangible assets and goodwill of $61.8 million and $0.5 million, respectively in the quarter ended March 31, 2014.

Property, Plant and Equipment Assets Held for Sale

During the quarter ended March 31, 2014, the Company held for sale assets in our Lincolnton manufacturing facility. As a result, the Company recognized an impairment charge of $5.7 million in the quarter ended March 31, 2014.

Columbia Laboratories Inc.

During the quarter ended March 31, 2014, we sold our minority interest in Columbia Laboratories Inc. for $8.5 million. As a result, we recognized a gain on the sale of the investment of $4.3 million in the quarter ended March 31, 2014.

2013 Significant Business Developments

During 2013, we completed and / or initiated the following transactions that impacted our results of operations and will continue to have an impact on our future operations.

Actavis (Foshan) Pharmaceuticals Co., Ltd. Assets Held for Sale

During the year ended December 31, 2013, we held our Chinese subsidiary, Actavis (Foshan) Pharmaceuticals Co., Ltd. (“Foshan”), for sale, which resulted in an impairment charge of $8.4 million in the fourth quarter of 2013. On January 24, 2014, we completed an agreement with Zhejiang Chiral Medicine Chemicals Co., Ltd to acquire its interest in Foshan (the “Foshan Sale”). The Company intends to continue further commercial operations in China in collaboration with our preferred business partners.

 

48


Table of Contents

Western European Assets Held for Sale

During the year ended December 31, 2013, we held for sale our commercial infrastructure in France, Italy, Spain, Portugal, Belgium, Germany and the Netherlands, including products, marketing authorizations and dossier license rights. The Company believes that the potential divestiture allows the Company to focus on faster growth markets including Central and Eastern Europe, and other emerging markets which we believe will enhance our long-term strategic objectives. On January 17, 2014, we announced our intention to enter into an agreement with Aurobindo Pharma Limited (“Aurobindo”) to sell these businesses. On April 1, 2014, the Company completed the sale of the assets in Western Europe.

In connection with the sale of our Western European assets, we have entered into a supply agreement whereby the Company will supply product to Aurobindo over a period of five years. In the second quarter of 2014, the Company will allocate the fair value of the consideration for the sale of the Western European assets of $65.0 million to each element of the agreement, including the supply of product.

As a result of the transactions, we recognized an impairment reversal / (loss) on the net assets held for sale of $3.4 million and $(34.3) million in the quarter ended March 31, 2014 and the year ended December 31, 2013, respectively. The Company anticipates recording a loss on the sale of assets in the second quarter of 2014.

Amendment to Sanofi Collaboration Agreement

On October 28, 2013, Warner Chilcott Company, LLC (“WCCL”), one of our indirect wholly-owned subsidiaries, and Sanofi-Aventis U.S. LLC (“Sanofi”) entered into an amendment (the “Sanofi Amendment”) to the global collaboration agreement as amended (the “Collaboration Agreement”) to which WCCL and Sanofi are parties. WCCL and Sanofi co-develop and market Actonel ® and Atelvia ® (risedronate sodium) on a global basis, excluding Japan.

Pursuant to the Sanofi Amendment, the parties amended the Collaboration Agreement with respect to Actonel ® and Atelvia ® in the U.S. and Puerto Rico (the “Exclusive Territory”) to provide that, in exchange for the payment of a lump sum of $125.0 million by WCCL to Sanofi in the year ended December 31, 2013, WCCL’s obligations with respect to the global reimbursement payment, which represented a percentage of Actavis’ net sales as defined, as it relates to the Exclusive Territory for the year ended December 31, 2014, shall be satisfied in full. The Sanofi Amendment did not and does not apply to or affect the parties’ respective rights and obligations under the Collaboration Agreement with respect to (i) the year ended December 31, 2013 or (ii) territories outside the Exclusive Territory. The $125.0 million was recorded as an intangible asset during the year ended December 31, 2013, which will be amortized over the course of the year ending December 31, 2014 using the economic benefit model.

Acquisition of Warner Chilcott

On October 1, 2013, we completed the Warner Chilcott Acquisition for a transaction value, including the assumption of debt, of $9.2 billion. Warner Chilcott was a leading specialty pharmaceutical company focused on women’s healthcare, gastroenterology, urology and dermatology segments of the branded pharmaceuticals market, primarily in North America. The Warner Chilcott Acquisition expands our presence in our Actavis Pharma segment. For additional information, refer to “NOTE 3 — Acquisitions and Other Agreements” in the accompanying “Notes to Consolidated Financial Statements” in this Quarterly Report.

On October 1, 2013 (the “Closing Date”), in connection with the Warner Chilcott Acquisition, Actavis plc, Bank of America, N.A. (“BofA”), as Administrative Agent and a syndicate of banks participating as lenders became parties to the Warner Chilcott Term Loan Credit and Guaranty Agreement (the “WC Term Loan Agreement”), pursuant to which the lenders party to the agreement provide loans to Warner Chilcott Corporation, a Delaware corporation (the “US Borrower”), WC Luxco S.à r.l., a private limited liability company ( société à responsabilité limitée ) incorporated under the laws of the Grand-Duchy of Luxembourg (the “Luxembourg Borrower”), and WCCL, a limited liability company organized under the laws of the Commonwealth of Puerto Rico (the “Puerto Rico Borrower” and, together with the US Borrower and the Luxembourg Borrower, the “WC Borrowers”) in an aggregate amount of $2.0 billion, comprised of (i) a $1.0 billion tranche that will mature on October 1, 2016 (the “Three Year Tranche”) and (ii) a $1.0 billion tranche that will mature on October 1, 2018 (the “Five Year Tranche”). The proceeds of borrowings under the WC Term Loan Agreement, together with $41.0 million of cash on hand, were used to finance the repayment in full of all amounts outstanding under Warner Chilcott’s then-existing Credit Agreement, dated as of March 17, 2011, as amended by Amendment No. 1 on August 20, 2012, among the WC Borrowers, BofA, as administrative agent and a syndicate of banks participating as lenders.

Endo Pharmaceuticals Inc.

We entered into an agreement with Endo Pharmaceuticals Inc. (“Endo”) and Teikoku Seiyaku Co., Ltd to settle all outstanding patent litigation related to our generic version of Lidoderm ® . Per the terms of the agreement, on September 15, 2013, we launched our generic version of Lidoderm ® (lidocaine topical patch 5%) to customers in the U.S. more than two years before the product’s patents expire. Lidoderm ® is a local anesthetic indicated to relieve post-shingles pain. Additionally, under the terms of the agreement, we received and distributed branded Lidoderm ® prior to the launch of the generic version of Lidoderm ® .

 

49


Table of Contents

Acquisition of Uteron Pharma, S.A

On January 23, 2013, we completed the acquisition of Belgium-based Uteron Pharma SA. The acquisition was consummated for a cash payment of $142.0 million, plus assumption of debt and other liabilities of $7.7 million and up to $155.0 million in potential future milestone payments, of which $43.4 million was recognized on the date of acquisition (the “Uteron Acquisition”). The Uteron Acquisition expands our pipeline of Women’s Health products, including two potential near term commercial opportunities in contraception and infertility, and one oral contraceptive project projected to launch by 2018. Several additional products in earlier stages of development were also included in the Uteron Acquisition.

2012 Significant Business Development

During 2012, we completed the following transaction that impacted our results of operations and will continue to have an impact on our future operations.

Acquisition of Actavis Group

On October 31, 2012, we completed the acquisition of the Actavis Group for a cash payment of €4,219.7 million, or approximately $5,469.8 million, and contingent consideration of up to 5.5 million newly issued shares of Actavis, Inc. which have since been issued (the “Actavis Group Acquisition”). Actavis Group was a privately held generic pharmaceutical company specializing in the development, manufacture and sale of generic pharmaceuticals.

Operating results

Segments

In the first quarter of 2014, the Board of Directors realigned the Company’s global strategic business structure. Prior to the realignment, the Company operated and managed its business as three distinct operating segments: Actavis Pharma, Actavis Specialty Brands and Anda Distribution.

Under the new organizational structure, generics, specialty brands and third-party commercial operations have been consolidated into a single new division. As a result of the realignment, we organized our business into two operating segments: Actavis Pharma and Anda Distribution. The Actavis Pharma segment includes patent-protected products and certain trademarked off-patent products that the Company sells and markets as brand pharmaceutical products and off-patent pharmaceutical products that are therapeutically equivalent to proprietary products. The Anda Distribution segment distributes generic and brand pharmaceutical products manufactured by third parties, as well as by the Company, primarily to independent pharmacies, pharmacy chains, pharmacy buying groups and physicians’ offices. The Anda Distribution segment operating results exclude sales of products developed, acquired, or licensed by the Actavis Pharma segment.

We evaluate segment performance based on segment contribution. Segment contribution for Actavis Pharma and Anda Distribution represents segment net revenues less cost of sales (excluding amortization and impairment of acquired intangibles including product rights), selling and marketing expenses and general and administrative expenses. We do not report total assets, capital expenditures, R&D, amortization loss on asset sales, impairments and contingent consideration adjustment, net by segment as not all such information has been accounted for at the segment level, nor has such information been used by all segments. R&D related to our Actavis Pharma segment was $171.5 million in the first quarter of 2014. Within R&D, $113.9 million was generic development, $33.2 million was invested in brand development and $24.4 million was invested in biosimilar development during the quarter.

 

50


Table of Contents

Quarter Ended March 31, 2014 Compared to Quarter Ended March 31, 2013

Results of operations, including segment net revenues, segment operating expenses and segment contribution information for our Actavis Pharma and Anda Distribution segments consisted of the following (in millions):

 

     Quarter Ended March 31, 2014     Quarter Ended March 31, 2013  
     Actavis
Pharma
    Anda
Distribution
    Total     Actavis
Pharma
    Anda
Distribution
    Total  

Product sales

   $ 2,206.7      $ 390.2      $ 2,596.9      $ 1,640.3      $ 231.0      $ 1,871.3   

Other revenue

     58.2               58.2        24.2               24.2   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net revenues

     2,264.9        390.2        2,655.1        1,664.5        231.0        1,895.5   

Operating expenses:

            

Cost of sales (1)

     961.8        331.2        1,293.0        892.1        194.5        1,086.6   

Selling and marketing

     256.1        27.0        283.1        207.3        19.9        227.2   

General and administrative

     268.0        7.8        275.8        178.3        7.5        185.8   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Contribution

   $ 779.0      $ 24.2      $ 803.2      $ 386.8      $ 9.1      $ 395.9   
  

 

 

   

 

 

     

 

 

   

 

 

   

Contribution margin

     34.4     6.2     30.3     23.2     3.9     20.9

Research and development

         171.5            132.1   

Amortization

         424.2            158.4   

Loss on asset sales, impairments and contingent consideration adjustment, net

         (0.4         148.0   
      

 

 

       

 

 

 

Operating income / (loss)

       $ 207.9          $ (42.6
      

 

 

       

 

 

 

Operating margin

         7.8         (2.2 )% 

 

(1) Excludes amortization and impairment of acquired intangibles including product rights.

Actavis Pharma Segment

 

     Quarter Ended March 31,     Change  
($ in millions)    2014     2013     Dollars      %  

Product sales

   $ 2,206.7      $ 1,640.3      $ 566.4         34.5

Other revenue

     58.2        24.2        34.0         140.5
  

 

 

   

 

 

   

 

 

    

 

 

 

Net revenues

     2,264.9        1,664.5        600.4         36.1

Operating expenses:

         

Cost of sales (1)

     961.8        892.1        69.7         7.8

Selling and marketing

     256.1        207.3        48.8         23.5

General and administrative

     268.0        178.3        89.7         50.3
  

 

 

   

 

 

   

 

 

    

 

 

 

Contribution

   $ 779.0      $ 386.8      $ 392.2         101.4
  

 

 

   

 

 

   

 

 

    

 

 

 

Contribution margin

     34.4     23.2        11.2

 

(1) Excludes amortization and impairment of acquired intangibles including product rights.

Net Revenues

The following table presents net revenues for the reporting units in the Actavis Pharma segment for the quarters ended March 31, 2014 and 2013 (in millions):

 

North American Brands:    March 31,      March 31,      Change  
   2014      2013      Dollars      %  

Women’s Health

   $ 212.6       $ 20.0       $ 192.6         n.m.   

Urology / Gastroenterology

     225.2         56.7         168.5         n.m.   

Dermatology / Established Brands

     156.2         52.9         103.3         n.m.   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total North American Brands

     594.0         129.6         464.4         358.3
  

 

 

    

 

 

    

 

 

    

 

 

 

North American Generics

     1,024.2         956.7         67.5         7.1

International

     646.7         578.2         68.5         11.8
  

 

 

    

 

 

    

 

 

    

Net Revenues

   $ 2,264.9       $ 1,664.5       $ 600.4         36.1
  

 

 

    

 

 

    

 

 

    

 

 

 

 

51


Table of Contents

North American Brand revenues are monitored based on the current mix of promoted products within Women’s Health, Urology / Gastroenterology and Dermatology / Established Brands. Movement of products between categories may occur from time to time based on changes in promotional activities.

Net revenues in our Actavis Pharma segment include product sales and other revenue derived from generic, branded generic, branded and OTC products. Our Actavis Pharma segment product line includes a variety of products and dosage forms. Indications for this line include, but are not limited to, pregnancy prevention, ulcerative colitis, acne, pain management, depression, hypertension, attention-deficit/hyperactivity disorder and smoking cessation. Dosage forms include oral solids, semi-solids, liquids, gels, transdermals, injectables, inhalation and oral transmucosals. Included within our Actavis Pharma segment are our key promoted North American Brand promoted products such as Rapaflo ® , Androderm ® , Generess ® Fe, Crinone ® and Trelstar ® . In October 2013, as a result of the Warner Chilcott Acquisition, we began promoting a number of products, including, but not limited to, Asacol ® HD, Atelvia ® , Delzicol ® , Doryx ® , Estrace ® Cream, Enablex ® , Lo Loestrin ® Fe and Minastrin ® 24 Fe. The increase in net revenues in North American Brands due to the Warner Chilcott Acquisition was $433.8 million in the quarter ended March 31, 2014.

Other revenues consist primarily of royalties, milestone receipts, commission income and revenue from licensing arrangements, co-promotion revenue and the recognition of deferred revenue relating to our obligation to manufacture and supply brand products to third parties. Other revenues also include revenue recognized from R&D and licensing agreements.

The increase in net revenues is primarily due to the Warner Chilcott Acquisition, which contributed three months of sales in 2014 compared to no sales in the prior period ($481.3 million world wide).

Cost of Sales

Cost of sales includes production and packaging costs for the products we manufacture, third party acquisition costs for products manufactured by others, profit-sharing or royalty payments for products sold pursuant to licensing agreements, inventory reserve charges and excess capacity utilization charges, where applicable. Cost of sales does not include amortization or impairment costs for acquired product rights or other acquired intangibles.

The increase in cost of sales was due to higher product sales as a result of the Warner Chilcott Acquisition ($172.0 million), including the impact of selling through a portion of the fair value step-up of the October 1, 2013 Warner Chilcott inventory acquired ($124.6 million). Included in the quarter ended March 31, 2013 was $93.5 million relating to the impact of selling through a portion of the fair value step-up related to the Actavis Group Acquisition.

Selling and Marketing Expenses

Selling and marketing expenses consist mainly of personnel-related costs, product promotion costs, distribution costs, professional services costs, insurance, depreciation and travel costs.

The increase in selling and marketing expenses was primarily due to higher selling and marketing costs associated with the Warner Chilcott Acquisition ($55.9 million), offset, in part, by restructuring activities related to the Actavis Group during the year ended December 31, 2013.

General and Administrative Expenses

General and administrative expenses consist mainly of personnel-related costs, facilities costs, transaction costs, insurance, depreciation, litigation and settlement costs and professional services costs which are general in nature.

The increase in general and administrative expenses was due in part to increased operating costs including additional personnel costs due to the expansion of the Company’s size, costs incurred by Warner Chilcott for both ongoing operating expenses of $46.8 million and integration and restructuring charges of $12.4 million, including $5.0 million of stock-based compensation. In the quarter ended March 31, 2014, the Company also incurred costs in connection with the proposed acquisition of Forest Laboratories of $14.2 million.

 

52


Table of Contents

Anda Distribution Segment

 

     Quarter Ended
March 31,
    Change  
($ in millions)    2014     2013     Dollars      %  

Product sales

   $ 390.2      $ 231.0      $ 159.2         69.0

Other revenue

     —          —          —           0.0
  

 

 

   

 

 

   

 

 

    

 

 

 

Net revenues

     390.2        231.0        159.2         69.0

Operating expenses:

         

Cost of sales (1)

     331.2        194.5        136.7         70.3

Selling and marketing

     27.0        19.9        7.1         35.7

General and administrative

     7.8        7.5        0.3         0.4
  

 

 

   

 

 

   

 

 

    

 

 

 

Contribution

   $ 24.2      $ 9.1      $ 15.1         165.9
  

 

 

   

 

 

   

 

 

    

 

 

 

Contribution margin

     6.2     3.9        2.3 %

 

(1) Excludes amortization and impairment of acquired intangibles including product rights.

Net Revenues

Our Anda Distribution segment distributes generic and brand pharmaceutical products manufactured by third parties, as well as by Actavis, primarily to independent pharmacies, pharmacy chains, pharmacy buying groups and physicians’ offices. Sales are principally generated through an in-house telemarketing staff and through internally developed ordering systems. The Anda Distribution segment operating results exclude sales by Anda of products developed, acquired, or licensed by the Actavis Pharma segment.

The increase was primarily due to an increase in U.S. base product sales due to volume increases ($112.7 million) and an increase in period-over-period third party launches ($46.5 million).

Cost of Sales

Cost of sales includes third party acquisition costs, profit-sharing or royalty payments for products sold pursuant to licensing agreements and inventory reserve charges, where applicable. Cost of sales does not include amortization or impairment costs for other acquired intangibles.

The increase in cost of sales within our Anda Distribution segment was due to higher product sales. Cost of sales as a percentage of revenue increased to 84.9% compared to 84.2% in the prior year period primarily due to product and customer mix.

Selling and Marketing Expenses

Selling and marketing expenses consist mainly of personnel costs, facilities costs, insurance and freight costs which support the Anda Distribution segment sales and marketing functions.

The increase in selling and marketing expenses relate to higher freight costs and higher personnel costs.

General and Administrative Expenses

General and administrative expenses consist mainly of personnel-related costs, facilities costs, insurance, depreciation and professional services costs.

Research and Development Expenses

 

     Quarter Ended
March 31,
    Change  
($ in millions)    2014     2013     Dollars      %  

Research and development

   $ 171.5      $ 132.1      $ 39.4         29.8

as % of net revenues

     6.5     7.0     

R&D expenses consist predominantly of personnel-related costs, API costs, contract research, biostudy and facilities costs associated with product development. The increase in R&D expenses was primarily due to higher costs associated with the Warner Chilcott Acquisition ($19.9 million).

Amortization

 

     Quarter Ended
March 31,
    Change  
($ in millions)    2014     2013     Dollars      %  

Amortization

   $ 424.2      $ 158.4      $ 265.8         167.8

as % of net revenues

     16.0     8.4     

 

53


Table of Contents

Amortization for the quarter ended March 31, 2014 increased as compared to the prior year period primarily as a result of amortization of identifiable assets acquired in the Warner Chilcott Acquisition ($284.5 million).

Loss on asset sales, impairments and contingent consideration adjustment, net

 

     Quarter Ended
March 31,
     Change  
($ in millions)    2014     2013      Dollars     %  

Loss on asset sales, impairments and contingent consideration adjustment, net

   $ (0.4   $ 148.0       $ (148.4     (100.3 )% 

Loss on asset sales, impairments and contingent consideration adjustment, net for the quarter ended March 31, 2014 primarily included the reversal of impairment losses due to movements in working capital related to our Western European assets held for sale of $3.4 million and the gain on the sale of Columbia Laboratories, Inc. of $4.3 million, offset, in part, by the impairment on our Lincolnton assets held for sale of $5.7 million as well as the impairment of select intangible assets of $1.5 million. Loss on asset sales, impairments and contingent consideration adjustment, net for the three months ended March 31, 2013 includes a non-cash fair value adjustment for contingent consideration as a result of the decision to award the remaining 1.65 million contingent shares in connection with the Actavis Group Acquisition ($150.3 million), offset, in part, by net gains on miscellaneous asset sales.

Interest Income

 

     Quarter Ended
March 31,
     Change  
($ in millions)    2014      2013      Dollars      %  

Interest income

   $ 1.0       $ 0.8       $ 0.2         25.0

Interest income represents interest earned on cash and cash equivalents held during the respective periods.

Interest Expense

 

     Quarter Ended
March 31,
     Change  

($ in millions)

   2014      2013      Dollars     %  

Interest expense — 2009 Senior Notes

   $ 6.3       $ 12.3       $ (6.0     (48.8 )% 

Interest expense — 2012 Senior Notes

     32.5         31.8         0.7        2.2

Interest expense — WC Notes

     18.8         —           18.8        n.m.   

Interest expense — Term Loans

     13.7         8.2         5.5        67.1

Interest expense — Revolving Credit Facility

     0.7         0.6         0.1        16.7

Interest expense — Other

     0.8         1.2         (0.4     (33.3 )% 
  

 

 

    

 

 

    

 

 

   

Interest expense

   $ 72.8       $ 54.1       $ 18.7        34.6
  

 

 

    

 

 

    

 

 

   

Interest expense increased for the quarter ended March 31, 2014 over the prior year primarily due to the indebtedness under the WC Notes (defined below) and the WC Term Loan Agreement incurred in connection with the Warner Chilcott Acquisition.

Other Income (expense), net

 

     Quarter Ended
March 31,
     Change  
($ in millions)    2014     2013      Dollars     %  

Gain on sale of investments

   $ 4.3      $ —           4.3        n.m.   

Bridge loan commitment fee

     (9.4     —           (9.4     n.m.   

Earnings on equity method investments

     1.1        0.9         0.2        22.2

Other income

     9.0        19.7         (10.7     (54.3 )% 
  

 

 

   

 

 

    

 

 

   

Other income (expense), net

   $ 5.0      $ 20.6       $ (15.6     (75.7 )% 
  

 

 

   

 

 

    

 

 

   

Gain on Sale of Investment

During the quarter ended March 31, 2014, we sold our minority interest in Columbia Laboratories Inc. for $8.5 million. As a result, we recognized a gain on the sale of $4.3 million.

 

54


Table of Contents

Bridge Loan Commitment Fee

In connection with the Forest Merger Agreement, we secured a bridge loan commitment of up to $7.0 billion and incurred associated commitment costs of $20.3 million. During the quarter ended March 31, 2014, we recorded an expense of $9.4 million, of which $7.5 million related to the termination of $2.0 billion of the bridge loan commitments.

Other Income

In the quarter ended March 31, 2014, we recorded income of $5.0 million, in connection with the agreement entered into on January 24, 2014 with Nitrogen DS Limited, one of the sellers associated with the Actavis Group Acquisition, in which we received payment from Nitrogen DS Limited in exchange for their right to transfer, sell, or assign or otherwise dispose of 50% of the locked up Actavis shares owned.

During the quarter ended March 31, 2013, in connection with the Arrow Group acquisition in December 2009, an amount had been maintained in escrow pending the settlement of certain post-closing matters. In January 2013, the Company received $15.0 million from the escrow account.

Provision for Income Taxes

 

     Quarter Ended
March 31,
    Change  
($ in millions)    2014     2013     Dollars      %  

Provision for income taxes

   $ 44.4      $ 28.2      $ 16.2         57.4

Effective tax rate

     31.5     (37.5 )%      

The Company’s effective tax rate for the quarter ended March 31, 2014 was 31.5% compared to (37.5)% for the quarter ended March 31, 2013. The effective tax rate for the quarter ended March 31, 2014 was impacted by income earned in jurisdictions with tax rates lower than the U.S. federal tax rate, offset by losses in certain non-U.S. jurisdictions for which no tax benefit is provided and the amortization of intangibles and inventory being tax benefited at a lower rate than the U.S. federal tax rate. Additionally, the tax provision included a benefit of $9.7 million related to certain changes to the Company’s uncertain tax positions. The effective tax rate for the quarter ended March 31, 2013 was impacted by certain non-deductible pre-tax expenses including a charge for consideration due to the former Actavis Group stakeholders of $150.3 million. This was partially offset by non-taxable pre-tax income of $15.0 million related to the Arrow Acquisition.

Liquidity and Capital Resources

Working Capital Position

Working capital at March 31, 2014 and December 31, 2013 is summarized as follows:

 

($ in millions):    March 31,
2014
     December 31,
2013
     Increase
(Decrease)
 

Current Assets:

        

Cash and cash equivalents

   $ 337.7       $ 329.0       $ 8.7   

Marketable securities

     2.5         2.5         —     

Accounts receivable, net

     1,508.7         1,404.9         103.8   

Inventories, net

     1,726.3         1,786.3         (60.0

Prepaid expenses and other current assets

     393.4         409.2         (15.8

Current assets held for sale

     294.9         271.0         23.9   

Deferred tax assets

     277.2         231.8         45.4   
  

 

 

    

 

 

    

 

 

 

Total current assets

     4,540.7         4,434.7         106.0   
  

 

 

    

 

 

    

 

 

 

Current liabilities:

        

Accounts payable and accrued expenses

   $ 2,323.8       $ 2,343.2       $ (19.4

Income taxes payable

     138.9         96.6         42.3   

Current portion of long-term debt and capital leases

     268.3         534.6         (266.3

Deferred revenue

     35.8         38.8         (3.0

Current liabilities held for sale

     204.7         246.6         (41.9

Deferred tax liabilities

     30.6         35.1         (4.5
  

 

 

    

 

 

    

 

 

 

Total current liabilities

     3,002.1         3,294.9         (292.8
  

 

 

    

 

 

    

 

 

 

Working Capital

   $ 1,538.6       $ 1,139.8       $ 398.8   
  

 

 

    

 

 

    

 

 

 

Working Capital excluding assets held for sale, net

   $ 1,448.4       $ 1,115.4       $ 333.0   
  

 

 

    

 

 

    

 

 

 

Adjusted Current Ratio

     1.52         1.37      
  

 

 

    

 

 

    

 

55


Table of Contents

Working capital excluding assets held for sale, net, increased $333.0 million to $1,448.4 million at March 31, 2014 compared to $1,115.4 million at December 31, 2013. This increase is due to net income, adjusted for non-cash activity during the quarter ended March 31, 2014 of $562.0 million, offset, in part, by the paydown of the outstanding balance under the revolving credit facility of $265.0 million.

Cash Flows from Operations

Summarized cash flow from operations is as follows:

 

     Quarter Ended
March 31,
 
($ in millions)    2014      2013  

Net cash provided by operating activities

   $ 439.6       $ 218.6   

Cash flows from operations represent net income adjusted for certain non-cash items and changes in assets and liabilities. Cash provided by operating activities increased $221.0 million in the quarter ended March 31, 2014 versus the prior year period, due primarily to an increase in net income, adjusted for non-cash activity of $326.2 million ($562.0 million and $235.8 million of adjusted cash net income in the quarters ended March 31, 2014 and 2013, respectively), offset, in part, by an increase in working capital.

Management expects that available cash balances and the remaining 2014 cash flows from operating activities will provide sufficient resources to fund our operating liquidity needs and expected 2014 capital expenditure funding requirements.

Investing Cash Flows

Our cash flows from investing activities are summarized as follows:

 

     Quarter Ended
March 31,
 
($ in millions)    2014     2013  

Net cash (used in) investing activities

   $ (24.1   $ (171.6

Investing cash flows consist primarily of cash used in acquisitions of businesses and intangibles (primarily product rights), capital expenditures for property, plant and equipment and purchases of investments and marketable securities partially offset by proceeds from the sale of investments and marketable securities. Included in the quarter ended March 31, 2014 was cash used in connection with capital expenditures for property, plant and equipment of $42.5 million, offset, in part by cash received from the sale of investments of $15.0 million.

Included in the three months ended March 31, 2013 was cash used in connection with the Uteron Acquisition, net of cash acquired of $141.3 million, and capital expenditures for property, plant and equipment of $29.2 million.

Financing Cash Flows

Our cash flows from financing activities are summarized as follows:

 

     Quarter Ended
March 31,
 
($ in millions)    2014     2013  

Net cash (used in) financing activities

   $ (368.0   $ (42.5

Financing cash flows consist primarily of borrowings and repayments of debt, repurchases of ordinary shares and proceeds from the exercise of stock options. Cash used in financing activities in the quarter ended March 31, 2014 included payments on outstanding indebtedness of $326.1 million including $265.0 million on the revolving credit facility, debt issuance costs of $20.3 million and the repurchase of ordinary shares to satisfy tax withholding obligations in connection with vested restricted stock issued to employees of $57.0 million, offset, in part, by the excess tax benefit relating to stock-based compensation of $36.8 million. Included in the three months ended March 31, 2013 were net payments on debt of $22.1 million and the repurchase of outstanding shares of $21.9 million.

 

56


Table of Contents

Debt and Borrowing Capacity

Debt consisted of the following (in millions):

 

     March 31,
2014
    December 31,
2013
 

WC Term Loan Agreement

   $ 1,809.5      $ 1,832.8   

Amended and Restated ACT Term Loan

     1,273.6        1,310.0   

Revolving Credit Facility

     —          265.0   

Senior Notes:

    

$1,200.0 million 1.875% notes due October 1, 2017

     1,200.0        1,200.0   

$1,250.0 million 7.75% notes due September 15, 2018

     1,250.0        1,250.0   

$400.0 million 6.125% notes due August 14, 2019

     400.0        400.0   

$1,700.0 million 3.250% notes due October 1, 2022

     1,700.0        1,700.0   

$1,000.0 million 4.625% notes due October 1, 2042

     1,000.0        1,000.0   

Plus: Unamortized premium

     98.4        103.9   

Less: Unamortized discount

     (31.3     (31.9
  

 

 

   

 

 

 

Senior Notes, net

     5,617.1        5,622.0   

Capital leases

     20.3        22.2   
  

 

 

   

 

 

 

Total debt

     8,720.5        9,052.0   

Less: Current portion

     268.3        534.6   
  

 

 

   

 

 

 

Total long-term debt and capital leases

   $ 8,452.2      $ 8,517.4   
  

 

 

   

 

 

 

Credit Facility Indebtedness

2013 Term Loan

WC Term Loan Agreement

On October 1, 2013 the Company borrowed $1.0 billion under the Three Year Tranche and $1.0 billion under the Five Year Tranche. The proceeds of borrowings under the WC Term Loan Agreement, together with $41.0 million of cash on hand, were used to finance, the repayment in full of all amounts outstanding under Warner Chilcott’s then-existing Credit Agreement, dated as of March 17, 2011, as amended by Amendment No. 1 on August 20, 2012, among the WC Borrowers, BofA, as administrative agent and a syndicate of banks participating as lenders.

Borrowings under the WC Term Loan Agreement bear interest at the applicable WC Borrower’s choice of a per annum rate equal to either (a) a base rate plus an applicable margin per annum varying from (x) 0.00% per annum to 0.75% per annum under the Three Year Tranche and (y) 0.125% per annum to 0.875% per annum under the Five Year Tranche, depending on the publicly announced debt ratings for non-credit-enhanced, senior unsecured long-term indebtedness of the parent (such applicable debt rating the “Debt Rating”) or (b) a Eurodollar rate, plus an applicable margin varying from (x) 1.00% per annum to 1.75% per annum under the Three Year Tranche and (y) 1.125% per annum to 1.875% per annum under the Five Year Tranche, depending on the Debt Rating.

The outstanding principal amount of loans under the Three Year Tranche is not subject to quarterly amortization and shall be payable in full on the three year anniversary of the Closing Date. The outstanding principal amount of loans under the Five Year Tranche is payable in equal quarterly amounts of 2.50% per quarter prior to the fifth anniversary of the Closing Date, with the remaining balance payable on the fifth year anniversary of the Closing Date.

We are subject to, and at March 31, 2014 were in compliance with, all financial and operational covenants under the terms of the WC Term Loan Agreement. As of March 31, 2014, the outstanding indebtedness under the Three Year Tranche and the Five Year Tranche was $925.0 million and $884.5 million, respectively. The book value of the outstanding indebtedness approximates fair value as the debt is at variable interest rates and re-prices frequently.

Amended and Restated Actavis, Inc. Credit and Guaranty Agreements

Amended and Restated ACT Term Loan

On the Closing Date and pursuant to the Term Loan Amendment Agreement (the “Term Amendment Agreement”), by and among Actavis, Inc., a wholly owned subsidiary of the Company, BofA, as administrative agent thereunder, and the lenders party thereto, dated as of August 1, 2013, we, as parent guarantor, Actavis WC Holding S.à r.l. (the “ACT Borrower”), as borrower, Actavis, Inc., as a subsidiary guarantor, and BofA, as administrative agent, entered into the Amended and Restated Actavis Term Loan Credit and Guaranty Agreement (the “ACT Term Loan Agreement”), dated as of October 1, 2013. The ACT Term Loan Agreement amended and restated Actavis, Inc.’s $1,800.0 million senior unsecured term loan credit facility, dated as of June 22, 2012. At closing, an aggregate principal amount of $1,572.5 million was outstanding under the ACT Term Loan Agreement.

 

57


Table of Contents

The Amended and Restated Term Loan provides that loans thereunder will bear interest, at the Company’s choice, of a per annum rate equal to either (a) a base rate, plus an applicable margin per annum varying from 0.00% per annum to 1.00% per annum depending on the Debt Rating or (b) a Eurodollar rate, plus an applicable margin varying from 1.00% per annum to 2.00% per annum depending on the Debt Rating.

The Amended and Restated Term Loan matures on October 31, 2017. The outstanding principal amount is payable in equal quarterly installments of 2.50% per quarter, with the remaining balance payable on the maturity date.

We are subject to, and at March 31, 2014 were in compliance with, all financial and operational covenants under the terms of the ACT Term Loan Agreement. The outstanding balance of the Term Loan at March 31, 2014 was $1,273.6 million. The book value of the outstanding indebtedness approximates fair value as the debt is at variable interest rates and re-prices frequently.

Revolving Credit Facility

On the Closing Date and pursuant to the Revolver Loan Amendment Agreement (the “Revolver Amendment Agreement” and, together with the Term Amendment Agreement, the “Amendment Agreements”), by and among Actavis, Inc., as subsidiary guarantor, BofA, as administrative agent thereunder, and the lenders party thereto, dated as of August 1, 2013, the Company, as parent guarantor, the ACT Borrower, as borrower, Actavis, Inc., as a subsidiary guarantor, and BofA, as administrative agent, entered into that certain Amended and Restated Actavis Revolving Credit and Guaranty Agreement (the “ACT Revolving Credit Agreement” and, together with the ACT Term Loan Agreement, the “Amended and Restated Credit Agreements”), dated as of October 1, 2013. The ACT Revolving Credit Agreement amended and restated Actavis, Inc.’s $750.0 million senior unsecured revolving credit facility dated as of September 16, 2011, as amended by that certain Amendment No. 1 to the credit agreement and joinder agreement, dated as of May 21, 2012. At closing, $9.4 million of letters of credit were outstanding under the ACT Revolving Credit Agreement. At closing, no loans were outstanding under the ACT Revolving Credit Agreement.

The ACT Revolving Credit Agreement provides that loans thereunder will bear interest, at the Company’s choice, of a per annum rate equal to either (a) a base rate, plus an applicable margin per annum varying from 0.00% per annum to 0.75% per annum depending on the Debt Rating or (b) a Eurodollar rate, plus an applicable margin varying from 0.875% per annum to 1.75% per annum depending on the Debt Rating. Additionally, to maintain availability of funds, the Company pays an unused commitment fee, which according to the pricing grid is set at 0.15% of the unused portion of the revolver.

We are subject to, and as of March 31, 2014 were in compliance with, all financial and operational covenants under the terms of the Revolving Credit Facility. At March 31, 2014, letters of credit outstanding were $9.4 million. The net availability under the Revolving Credit Facility was $740.6 million.

Senior Notes Indebtedness

Actavis, Inc. Supplemental Indenture

On October 1, 2013, the Company, Actavis, Inc., a wholly owned subsidiary of the Company, and Wells Fargo Bank, National Association, as trustee, entered into a fourth supplemental indenture (the “Fourth Supplemental Indenture”) to the indenture, dated as of August 24, 2009 (the “Base Indenture” and, together with the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture (each as defined below), the “Indenture”), as supplemented by the first supplemental indenture, dated as of August 24, 2009 (the “First Supplemental Indenture”), the second supplemental indenture, dated as of May 7, 2010 (the “Second Supplemental Indenture”), and the third supplemental indenture, dated as of October 2, 2012 (the “Third Supplemental Indenture”). Pursuant to the Fourth Supplemental Indenture, the Company has provided a full and unconditional guarantee of Actavis, Inc.’s obligations under its $450.0 million 5.000% senior notes due August 15, 2014, (the “2014 Notes”), its $400.0 million 6.125% senior notes due August 15, 2019 (the “2019 Notes”), its $1,200.0 million 1.875% senior notes due October 1, 2017 (the “2017 Notes”), its $1,700.0 million 3.250% senior notes due October 1, 2022 (the “2022 Notes”) and its $1,000.0 million 4.625% Senior Notes due October 1, 2042 (the “2042 Notes”, and together with the 2014 Notes, the 2019 Notes, the 2017 Notes and the 2022 Notes, the “Notes”).

WC Supplemental Indenture

On October 1, 2013, the Company, WCCL, Warner Chilcott Finance LLC (the “Co-Issuer” and together with WC Company, the “Issuers”) and Wells Fargo Bank, National Association, as trustee (the “WC Trustee”), entered into a third supplemental indenture (the “Supplemental Indenture”) to the indenture, dated as of August 20, 2010 (the “WC Indenture”), among the Issuers, the guarantors party thereto and the WC Trustee, with respect to the Issuers’ 7.75% senior notes due 2018 (the “WC Notes”). Pursuant to the Supplemental Indenture, we have provided a full and unconditional guarantee of the Issuers’ obligations under the WC Notes and the WC Indenture.

 

58


Table of Contents

The fair value of the outstanding WC Notes ($1,250.0 million face value), as determined in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 820 “Fair Value Measurement” (“ASC 820”) under Level 2 based upon quoted prices for similar items in active markets, was $1,336.0 million and $1,357.4 million as of March 31, 2014 and December 31, 2013, respectively.

2012 Notes Issuance

On October 2, 2012, Actavis, Inc., a wholly owned subsidiary of the Company, issued the 2017 Notes, the 2022 Notes, and the 2042 Notes (collectively the “2012 Senior Notes”). Interest payments are due on the 2012 Senior Notes semi-annually in arrears on April 1 and October 1 beginning April 1, 2013. Net proceeds from the offering of the 2012 Senior Notes were used for the Actavis Group Acquisition. The fair value of the outstanding 2012 Senior Notes ($3,900.0 million face value), as determined in accordance with ASC 820 under Level 2 based upon quoted prices for similar items in active markets, was $3,779.0 million and $3,683.2 million as of March 31, 2014 and December 31, 2013, respectively.

2009 Notes Issuance

On August 24, 2009, Actavis, Inc. issued the 2014 Notes and the 2019 Notes (collectively the “2009 Senior Notes”). Interest payments are due on the 2009 Senior Notes semi-annually in arrears on February 15 and August 15, respectively, beginning February 15, 2010. Net proceeds from the offering of 2009 Senior Notes were used to repay certain debt with the remaining net proceeds being used to fund a portion of the cash consideration for the Arrow Group (acquired on December 2, 2009, in exchange for cash consideration of $1.05 billion, approximately 16.9 million shares of the Company’s Restricted Ordinary Shares and 200,000 shares of the Company’s Mandatorily Redeemable Preferred Stock and certain contingent consideration). The 2014 Notes, which had an outstanding principal balance of $450.0 million and which were fully and unconditionally guaranteed by us, were redeemed on November 5, 2013 at a redemption price equal to $465.6 million, which resulted in a cash expense of $15.6 million in the fourth quarter of 2013. The fair value of the Company’s outstanding 2009 Senior Notes ($400.0 million face value), as determined in accordance with ASC 820 under Level 2 based upon quoted prices for similar items in active markets, was $461.1 million and $460.9 million as of March 31, 2014 and December 31, 2013, respectively.

Off-Balance Sheet Arrangements

We do not have any material off-balance sheet arrangements that have, or are reasonably likely to have, a current or future effect on our financial condition, changes in financial condition, net revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

 

I TEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

The following discussion provides forward-looking quantitative and qualitative information about our potential exposure to market risk. Market risk represents the potential loss arising from adverse changes in the value of financial instruments. The risk of loss is assessed based on the likelihood of adverse changes in fair values, cash flows or future earnings. We are exposed to market risk for changes in the market values of our investments (Investment Risk) and the impact of interest rate changes (Interest Rate Risk) and the impact of foreign currency exchange changes (Foreign Currency Exchange Risk).

We maintain our portfolio of cash equivalents and short-term investments in a variety of securities, including both government and government agency obligations with ratings of A or better and money market funds. Our investments in marketable securities are governed by our investment policy which seeks to preserve the value of our principal, provide liquidity and maximize return on the Company’s investment against minimal interest rate risk. Consequently, our interest rate and principal risk are minimal on our non-equity investment portfolio. The quantitative and qualitative disclosures about market risk are set forth below.

Investment Risk

As of March 31, 2014, our total investments in marketable and equity securities of other companies, including equity method investments were $12.4 million (included in marketable securities and investments and other assets). The fair values of these investments are subject to significant fluctuations due to volatility of the stock market and changes in general economic conditions.

We regularly review the carrying value of our investments and identify and recognize losses, for income statement purposes, when events and circumstances indicate that any declines in the fair values of such investments below our accounting basis are other than temporary.

 

59


Table of Contents

Interest Rate Risk

Our exposure to interest rate risk relates primarily to our non-equity investment portfolio and our floating rate debt. Our cash is invested in bank deposits and A-rated or better money market mutual funds.

Our portfolio of marketable securities includes U.S. treasury and agency securities classified as available-for-sale securities, with no security having a maturity in excess of two years. These securities are exposed to interest rate fluctuations. Because of the short-term nature of these investments, we are subject to minimal interest rate risk and do not believe that an increase in market rates would have a significant negative impact on the realized value of our portfolio.

Floating Rate Debt

At March 31, 2014, borrowings outstanding under the WC Term Loan Agreement and the Amended and Restated Term Loan were $3,083.1 million. Assuming a one percent increase in the applicable interest rate, annual interest expense under the WC Term Loan Agreement and the Amended and Restated ACT Term Loan would increase by approximately $30.8 million over the next twelve months.

Fixed Rate Debt

The Company has $5,550.0 million outstanding under its Senior Notes. Changes in market interest rates generally affect the fair value of fixed-rate debt, but do not impact earnings or cash flows.

Foreign Currency Exchange Risk

We operate and transact business in various foreign countries and are, therefore, subject to the risk of foreign currency exchange rate fluctuations. The Company manages this foreign currency risk, in part, through operational means including managing foreign currency revenues in relation to same currency costs as well as managing foreign currency assets in relation to same currency liabilities. The Company is also exposed to the potential earnings effects from intercompany foreign currency assets and liabilities that arise from normal trade receivables and payables and other intercompany loans. The Company seeks to limit exposure to foreign exchange risk involving intercompany trade receivables and payables by settling outstanding amounts through normal payment terms. Other methodologies to limit the Company’s foreign exchange risks are being developed currently which may include foreign exchange forward contracts or options.

Net foreign currency gains and losses did not have a material effect on the Company’s results of operations for the quarters ended March 31, 2014 or 2013, respectively.

Other

We do not believe that inflation has had a significant impact on our revenues or operations.

At this time, we have no material commodity price risks.

 

ITEM 4. CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

The Company maintains “disclosure controls and procedures,” as such term is defined under Rule 13a-15(e) of the Exchange Act, that are designed to provide reasonable assurance that information required to be disclosed in the Company’s Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including its Principal Executive Officer and Principal Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objective.

As required by SEC Rule 13a-15(b), the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Principal Executive Officer and Principal Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures as of December 31, 2013. Based on this evaluation, the Company’s Principal Executive Officer and Principal Financial Officer concluded that the Company’s disclosure controls and procedures were not effective as of December 31, 2013 because of the material weakness in our internal control over financial reporting described in our Annual Report on Form 10-K. The Company has started the remediation of implementing changes in information technology general controls in order to improve controls over segregation of duties, restricted access to programs and data, and change management activities in order to address the previously reported internal control deficiencies in our Form 10-K. The Company will continue to take measures that may be necessary and advisable so as to institute measures to address the material weakness.

Changes in Internal Control Over Financial Reporting

There have been no changes in the Company’s internal control over financial reporting, during the fiscal quarter ended March 31, 2014, that has materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

60


Table of Contents

PART II. OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

For information regarding legal proceedings, refer to “PART I, ITEM 3. LEGAL PROCEEDINGS,” of our Annual Report on Form 10-K for the year ended December 31, 2013 and “ Legal Matters” in “NOTE 17 — Commitments and Contingencies” in the accompanying “Notes to Consolidated Financial Statements” in this Quarterly Report.

 

ITEM 1A. RISK FACTORS

In addition to the other information set forth in this Quarterly Report, you should carefully consider the risk factors previously disclosed in “Item 1A” of our Annual Report on Form 10-K for the year ended December 31, 2013.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

Recent Sale of Unregistered Securities; Uses of Proceeds from Registered Securities

None.

Issuer Purchases of Equity Securities

During the quarter ended March 31, 2014, we repurchased 272,990 of our ordinary shares to satisfy tax withholding obligations in connection with the vesting of restricted shares issued to employees as follows:

 

Period

   Total
Number
of Shares
Purchased
     Average
Price
Paid per
Share
     Total
Number of
Shares
Purchased
as Part of
Publically
Announced
Program
     Approximate
Dollar Value
of Shares
that May Yet
Be
Purchased
Under the
Program
 

January 1 - 31, 2014

     39,421       $ 188.84         —           —     

February 1 - 28, 2014

     29,133       $ 204.25         —           —     

March 1 - 31, 2014

     204,436       $ 213.11         —           —     
  

 

 

    

 

 

       

January 1 - March 31, 2014

     272,990       $ 208.66         
  

 

 

    

 

 

       

 

ITEM 6. EXHIBITS

Reference is hereby made to the Exhibit Index on page 63.

 

61


Table of Contents

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, on May 5, 2014.

 

ACTAVIS PLC
By:   /s/ R.Todd Joyce
Name:   R.Todd Joyce
Title:  

Chief Financial Officer - Global

(Principal Executive Officer)

 

By:   /s/ James C. D’Arecca
Name:   James C. D’Arecca
Title:  

Chief Accounting Officer

(Principal Accounting Officer)

 

62


Table of Contents

EXHIBIT INDEX

 

Exhibit
No.

 

Description

10.1*#   Employee Severance Pay Plan for Employees of Actavis Inc. and Certain of Its U.S. Subsidiaries.
10.2*#   Change of Control Severance Pay Plan for Certain Management Employees of Actavis, Inc. and Its U.S. Subsidiaries.
  31.1*   Certification of Chief Executive Officer pursuant to Rule 13a-14a of the Securities Exchange Act of 1934.
  31.2*   Certification of Chief Financial Officer pursuant to Rule 13a-14a of the Securities Exchange Act of 1934.
  32.1**   Certification of Chief Executive Officer pursuant to 18 U.S.C. of Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
  32.2**   Certification of Chief Financial Officer pursuant to 18 U.S.C. of Section 1350, as adopted pursuant to by Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS   XBRL Instance Document.
101.SCH   XBRL Taxonomy Extension Schema Document.
101.CAL   XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF   XBRL Taxonomy Extension Label Definition Document.
101.LAB   XBRL Taxonomy Extension Label Linkbase Document.
101.PRE   XBRL Taxonomy Extension Presentation Linkbase Document.

 

# Indicates a management contract or compensatory plan or arrangement.
* Filed herewith.
** Furnished herewith and not “filed” for purposes of Section 18 of the Exchange Act.

 

63

Exhibit 10.1

Employee Severance Pay Plan

for Employees of

Actavis, Inc. and Certain of Its

U.S. Subsidiaries

(Effective January 1, 2014)


Contents

 

Article 1. Introduction

     1   

1.1 Establishment and Amendment of the Plan

     1   

1.2 Status of the Plan

     1   

Article 2. Definitions

     2   

2.1 Affiliate

     2   

2.2 Annual Base Salary

     2   

2.3 Base Pay

     2   

2.4 Board

     2   

2.5 Change of Control Severance Plan

     2   

2.6 Code

     2   

2.7 Committee

     2   

2.8 Company

     3   

2.9 Disability

     3   

2.10 Effective Date

     3   

2.11 Eligible Employee

     3   

2.12 Employee

     4   

2.13 ERISA

     4   

2.14 Laid Off

     4   

2.15 Plan

     4   

2.16 Plan Year

     5   

2.17 Qualifying Termination of Employment

     5   

2.18 Regular Severance Benefit

     5   

2.19 Release

     5   

2.20 Relocation

     5   

2.21 Salary Grade Level

     5   

2.22 Severance Benefits

     5   

2.23 Specified Employee

     5   

2.24 Substitute Severance Benefit

     6   

2.25 Successor Employer

     6   

2.26 Termination of Employment

     6   

2.27 U.S. Subsidiary

     7   

2.28 Years of Service

     7   

Article 3. Eligibility for Benefits

     8   

3.1 Eligibility for Benefit

     8   

3.2 Release

     9   

3.3 Refusal to Accept Comparable Position

     9   

3.4 409A Cure Period

     9   

3.5 Employment with a Successor

     9   

3.6 Company Discretion as to Eligibility

     10   

 

i


Article 4. Amount of Benefits

     11   

4.1 Regular Severance Benefit

     11   

4.2 Substitute Severance Benefit

     11   

4.3 Company Discretion as to Amount of Benefit

     12   

4.4 Offsets

     12   

Article 5. Benefits

     13   

5.1 Timing

     13   

5.2 Death While in Pay Status

     14   

5.3 Health Benefits

     14   

5.4 Career Transition Assistance

     15   

5.5 Educational Reimbursement Benefits

     15   

5.6 Status as Designated Reimbursement or In-Kind Payment Plans

     16   

Article 6. Cost of the Plan

     17   

6.1 Plan Costs

     17   

Article 7. Reemployment

     18   

7.1 Reemployment of Eligible Employee

     18   

Article 8. Amendment or Termination

     19   

8.1 Amendment or Termination

     19   

Article 9. Plan Administration

     20   

9.1 Committee

     20   

9.2 Operation of the Committee

     20   

9.3 Agents

     20   

9.4 Compensation and Expenses

     21   

9.5 Committee’s Powers and Duties

     21   

9.6 Committee’s Decisions Conclusive/Exclusive Benefit

     22   

9.7 Indemnity

     22   

9.8 Insurance

     24   

9.9 Fiduciaries

     24   

9.10 Notices

     24   

9.11 Data

     25   

9.12 Claims Procedure

     25   

9.13 Effect of a Mistake

     27   

Article 10. Miscellaneous Provisions

     28   

10.1 No Enlargement of Employee Rights

     28   

10.2 No Examination or Accounting

     28   

10.3 Records Conclusive

     28   

10.4 409A

     28   

10.5 Service of Legal Process

     28   

10.6 Governing Law

     28   

10.7 Severability

     28   

 

ii


10.8 Missing Persons

     29   

10.9 Facility of Payment

     29   

10.10 General Restrictions Against Alienation

     29   

10.11 Gender and Number

     30   

10.12 Counterparts

     30   

10.13 Withholding

     30   

 

iii


Article 1. Introduction

1.1 Establishment and Amendment of the Plan

Watson Pharmaceuticals, Inc. (“Watson”) originally adopted this Employee Severance Pay Plan for Employees of Watson Pharmaceuticals, Inc. and Certain of Its U.S. Subsidiaries (“Plan”) effective as of January 1, 2006. The Plan was amended, effective as of January 1, 2008, to clarify certain provisions regarding the eligibility to receive Severance Benefits, the amount of the Severance Benefits to which an Eligible Employee may be entitled and for compliance with the final regulations under Internal Revenue Code (“Code”) section 409A. The Plan is now being amended, effective as of January 1, 2014, to reflect Actavis, Inc. as the sponsor of the Plan, and to make other changes to update the terms of the Plan. The Plan is designed to provide certain Eligible Employees who are involuntarily terminated from the Company for specific reasons with Severance Benefits that will be paid for a specified period of time as if the Employee had continued in employment with the Company.

1.2 Status of the Plan

The Plan is intended to provide a severance or separation pay benefit and is intended to constitute an “employee welfare benefit plan” under ERISA section 3(1). The provisions of this restated Plan are effective for Eligible Employees who become eligible for Severance Benefits on or after January 1, 2014.

 

1


Article 2. Definitions

2.1 Affiliate

“Affiliate” means:

 

(a) Any entity or organization that, together with the Company, is part of a controlled group of corporations, within the meaning of Code section 414(b);

 

(b) Any trade or business that, together with the Company, is under common control, within the meaning of Code section 414(c); and

 

(c) Any entity or organization that is required to be aggregated with the Company, pursuant to Code section 414(m) or 414(o).

An entity shall be an Affiliate only during the period when the entity has the required relationship, under this Section 2.1, with the Company.

2.2 Annual Base Salary

“Annual Base Salary” means an Eligible Employee’s gross, base annual rate of pay or salary, excluding overtime, bonuses, commissions, premium pay, shift differentials, employer-paid employee benefits, expense reimbursements, and similar amounts. If the Employee is paid by the hour, Annual Base Salary is the Eligible Employee’s regular hourly rate multiplied by his or her regularly scheduled hours per year.

2.3 Base Pay

“Base Pay” means an Eligible Employee’s gross, base weekly rate of pay or salary, excluding overtime, bonuses, commissions, premium pay, shift differentials, employer-paid employee benefits, expense reimbursements, and similar amounts. If the Employee is paid by the hour, Base Pay is the Eligible Employee’s regular hourly rate multiplied by his or her regularly scheduled hours per week.

2.4 Board

“Board” means the Board of Directors of Actavis, Inc.

2.5 Change of Control Severance Plan

“Change of Control Severance Plan” means the Change of Control Severance Pay Plan for Certain Management Employees of Actavis, Inc. and Its U.S. Subsidiaries.

2.6 Code

“Code” means the Internal Revenue Code of 1986, as amended.

2.7 Committee

“Committee” means the Actavis Employee Benefit Plans Committee or such body designated by the Company’s Board of Directors to replace such committee.

 

2


2.8 Company

“Company” means Actavis, Inc., a Nevada corporation, its U.S. Subsidiaries, and any successor in interest to Actavis or such U.S. Subsidiary.

2.9 Disability

“Disability” means a total physical or mental condition which, in the opinion of the Committee, causes an Eligible Employee to be totally and presumably permanently disabled, due to sickness or injury, so as to be completely and presumably permanently unable to perform the regular full-time active duties of his or her usual course of employment.

2.10 Effective Date

“Effective Date” means January 1, 2014.

2.11 Eligible Employee

“Eligible Employee” means an Employee of the Company. Any Employee classified by the Company, in its sole discretion, as being in one or more of the following categories, shall not be an Eligible Employee:

 

(a) Any Employee with a currently effective employment agreement or contract (including a letter agreement) providing for severance benefits, unless such agreement or contract expressly refers to this Plan;

 

(b) Any Employee eligible for any other Company severance or separation pay plan, unless the Company notifies the individual in writing that he or she is eligible for this Plan;

 

(c) Any Employee entitled to benefits under the Change of Control Severance Plan, if an event that triggers benefits under both plans occurs at substantially the same time;

 

(d) Any newly hired Employee who is on a probationary period;

 

(e) Any Employee absent from work on an indefinite unpaid leave of absence expected to exceed 90 days, unless eligibility is required by applicable federal or state law or the Company notifies the individual in writing, after the leave of absence is approved, that he or she is eligible for benefits under this Plan;

 

(f) Any Employee or other individual classified by the Company, in its sole discretion, as a temporary employee regardless of how long the individual is employed by the Company;

 

(g)

Any individual whom the Company regards as an independent contractor (including an employee of such contractor) as evidenced by the Company’s failure to withhold taxes from his or her compensation, even if such status as a contractor (or employment status, as applicable) is subsequently reclassified by the Internal Revenue Service, the Department of Labor, or any other governmental agency, court or other tribunal, unless and until the Company in

 

3


  fact designates such individual as an Employee and then only from the time of such designation forward without retroactive effect unless the Company, in its sole discretion, decides otherwise;

 

(h) Any Employee or other individual classified by the Company, in its sole discretion, as a project employee, unless the Company notifies the individual in writing that he or she is eligible for this Plan;

 

(i) Individuals who are leased employees of the Company within the meaning of Code section 414(n);

 

(j) Individuals classified by the Company as part-time employees and scheduled to work fewer than 30 hours per week;

 

(k) Any Employee, who is otherwise eligible to participate in the Plan, who agreed in writing to waive eligibility for Severance Benefits under the Plan;

 

(l) Employees classified by the Company as “foreign employees” meaning Employees based or employed in a foreign country or paid from a non-U.S. payroll (including an Employee based in the Commonwealth of Puerto Rico and paid from a payroll in Puerto Rico); and

 

(m) Employees whose terms and conditions of employment are subject to collective bargaining unless the applicable collective bargaining agreement specifically provides for their eligibility under this Plan.

2.12 Employee

“Employee” means an individual classified by the Company as a regular employee on the U.S. payroll, who is employed by the Company on a full-time basis (regularly scheduled to work 30 or more hours per week). It also includes any such person while on a leave of absence granted by the Company. For the avoidance of doubt, “Employee” does not include any individual based or employed, or paid from a payroll, in the Commonwealth of Puerto Rico.

2.13 ERISA

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

2.14 Laid Off

“Laid Off” means the elimination of an Employee’s position due to a restructuring or workforce reduction that results in such Employee’s employment being terminated.

2.15 Plan

“Plan” means the Employee Severance Pay Plan for Employees of Actavis, Inc. and Certain of Its U.S. Subsidiaries as restated herein and as subsequently amended from time to time.

 

4


2.16 Plan Year

“Plan Year” means the consecutive 12-month period beginning January 1 and ending December 31.

2.17 Qualifying Termination of Employment

“Qualifying Termination of Employment” means an Eligible Employee’s Termination of Employment that, in the Company’s sole discretion, qualifies the Eligible Employee for Severance Benefits so long as the Eligible Employee meets all applicable requirements to receive Severance Benefits under the Plan.

2.18 Regular Severance Benefit

“Regular Severance Benefit” means the benefit payable under Section 4.1 of the Plan.

2.19 Release

“Release” means the executed and delivered irrevocable general release, in a form satisfactory to the Company, from the Employee to the Company releasing the Company from any and all claims relating to the Employee’s employment, including, but not limited to, retirement and welfare benefits with the Company.

2.20 Relocation

“Relocation” means the Company’s decision to relocate an Eligible Employee’s principal work site such that it represents a material change in the geographic location at which the Eligible Employee must provide services to the Company (an increase in the one-way commute distance of 50 miles or more will be presumed to be material for purposes of this Plan and Treasury Regulation section 1.409A-1(n)).

2.21 Salary Grade Level

“Salary Grade Level” means the pay grade classification designated to each Employee by the Company at the Employee’s date of hire and as subsequently modified by the Company from time to time.

2.22 Severance Benefits

“Severance Benefits” means all benefits that may be payable under this Plan, including the:

 

(a) Regular Severance Benefit described in Section 4.1, as applicable;

 

(b) Substitute Severance Benefit described in Section 4.2, as applicable;

 

(c) Health Benefits described in Section 5.3; as applicable;

 

(d) Career Transition Assistance described in Section 5.4, as applicable;

 

(e) Educational Reimbursement Benefits described in Section 5.5, as applicable.

 

5


2.23 Specified Employee

“Specified Employee” means an Eligible Employee qualifying as a “key employee” for purposes of Code section 416(i) (determined without regard to Code section 416(i)(5)) by satisfying any one of the following conditions at any time during the 12-month period ending on each December 31 (the “Identification Date”):

 

(a) The Eligible Employee is among the top-paid 50 officers of the Company with annual compensation (within the meaning of Code section 415(c)(3)) in excess of $165,000 (for the December 31, 2013 Identification Date) (subject to cost-of-living adjustments in accordance with Code section 416(i)(1));

 

(b) The Eligible Employee is a five-percent owner; or

 

(c) The Eligible Employee is a one-percent owner and has annual compensation (within the meaning of Code section 415(c)(3)) in excess of $150,000.

If an individual is a key employee as of an Identification Date, the individual shall be treated as a Specified Employee for the 12-month period beginning on the April 1 following the Identification Date. For the limited purpose of applying the “one-percent” and “five-percent” ownership rules, ownership is determined with respect to the entity for which the Employee provides services. The Code’s controlled and affiliated service group rules do not apply when determining an Employee’s ownership interests.

Notwithstanding the foregoing, an individual shall not be treated as a Specified Employee unless any stock of the Company or a corporation affiliated with it pursuant to Code section 414(b) or (c) is publicly traded on an established securities market or otherwise.

Notwithstanding the above, the Company may (but is not required to) adopt an alternative method for identifying Specified Employees, provided such method satisfies the requirements set forth at Treasury Regulations section 1.409A-1(i)(5).

2.24 Substitute Severance Benefit

“Substitute Severance Benefit” means a severance payment as provided in Section 4.2 meant to replace the Regular Severance Benefit. The Substitute Severance Benefit payment, if applicable, will be described in writing to the Eligible Employee.

2.25 Successor Employer

“Successor Employer” means any entity that acquires or assumes the Company’s facilities, operations or functions formerly carried out by the Company (such as the buyer of a facility or an entity to which a Company operation or function has been outsourced), or any Affiliate making an offer of employment at the request of the Company.

2.26 Termination of Employment

“Termination of Employment” means the date of a termination of the employment relationship between the Employee and the Company (including an Affiliate), when both the employee and the Company (including an Affiliate) reasonably anticipated that no future services would be performed after such date. For purposes of this Plan,

 

6


the term Termination of Employment shall have the same meaning as the term “separation from service” as defined in Treasury Regulation section 1.409A-1(h) and the rules of such Treasury Regulation (and other applicable guidance) will be applied to determine whether an Eligible Employee has a Termination of Employment.

2.27 U.S. Subsidiary

“U.S. Subsidiary” means any domestic entity (other than Actavis, Inc.) in an unbroken chain of entities beginning with Actavis, Inc. if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least eighty (80%) of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.

2.28 Years of Service

“Years of Service” means the number of full years of active paid employment with the Company, counted from an Eligible Employee’s date of hire to Termination of Employment. Employment with a predecessor entity will not be included, unless the Company, in its sole discretion, decides otherwise. No credit shall be given for periods of less than a full year.

 

7


Article 3. Eligibility for Benefits

3.1 Eligibility for Benefit

 

(a) Subject to the conditions provided in this Article 3, Severance Benefits will be payable to each Eligible Employee who:

 

  (1) Is employed by the Company on or after the Effective Date; and

 

  (2) Is either:

 

  (A) Permanently and involuntarily Laid Off by the Company (such that both the Eligible Employee and the Company have the reasonable belief at the time of the layoff, based on all of the surrounding facts and circumstances, that the Eligible Employee will not perform any future services for the Company); or

 

  (B) Subject to a Relocation and satisfies the requirements of Section 3.4.

 

(b) An otherwise Eligible Employee shall forfeit his or her eligibility for Severance Benefits unless the Company is satisfied that such Employee has satisfactorily completed all reasonable transition requests made by the Company, including, but not limited to, informing the Company of the location of business files and returning Company property to the Company.

 

(c) An otherwise Eligible Employee will not be eligible for Severance Benefits if the otherwise Eligible Employee:

 

  (1) Resigns or otherwise voluntarily terminates employment with the Company;

 

  (2) Terminates employment with the Company after being informed by the Company that he or she is being permanently and involuntarily Laid Off but prior to the date set by the Company for the Eligible Employee’s Termination of Employment.

 

  (3) Dies;

 

  (4) Incurs a Disability;

 

  (5) Is discharged by the Company for unsatisfactory performance or misconduct (including, but not limited to, conviction of any felony or a material violation of a Company policy); or

 

  (6) Materially breaches his or her duties to the Company and does not correct the breach within 30 days of receiving written notice of the breach from his or her immediate supervisor or designated Company officer or one of their designees.

 

8


(d) The Company has the right to cancel or reschedule an Eligible Employee’s permanent layoff (or job loss from job elimination) from the Company or proposed Relocation before the Eligible Employee’s Termination of Employment. If the Company takes any of the actions set forth in the preceding sentence, the Eligible Employee shall not be eligible to receive Severance Benefits unless he or she has a subsequent event that entitles him or her to receive Severance Benefits.

3.2 Release

No Severance Benefits will be provided under this Plan to an Eligible Employee unless such Eligible Employee executes and delivers to the Company a Release, and does not revoke such Release within the time period prescribed in the Release. The Release must be satisfactory to the Company in form and substance and must be delivered to the Company no later than the date prescribed by the Company.

3.3 Refusal to Accept Comparable Position

An otherwise Eligible Employee will not be eligible for Severance Benefits if the Eligible Employee refuses a job offer for a comparable position with the Company in the same or same general geographic location, as determined by the Company in its sole discretion, such that any change in the Eligible Employee’s principal work site (if any) will not result in a Relocation. Comparable positions might include a different position at the same level and/or authority, transferring to another department, changing shifts, etc.

3.4 409A Cure Period

Any Eligible Employee who initiates his or her own Termination of Employment following the Company’s notification to the Eligible Employee that he or she is subject to a Relocation will not be entitled to Severance Benefits unless such Eligible Employee:

 

(a) Has timely (within 60 days of receiving notice of such Relocation) notified the Company that the Company, including any Successor Employer, has proposed a change in the Eligible Employee’s principal work site, which would constitute a Relocation;

 

(b) Has requested the Company to remedy such condition; and

 

(c) The Company, after receiving such notice, declines to remedy such condition within 30 days.

3.5 Employment with a Successor

An otherwise Eligible Employee will not be eligible for Severance Benefits if the Eligible Employee has been offered comparable employment by a Successor Employer, as determined by the Company in its sole discretion, to commence promptly after the Eligible Employee’s Termination of Employment with the Company (including any successor in interest to the Company).

 

9


3.6 Company Discretion as to Eligibility

Notwithstanding the provisions of Article 3 above, the Company retains the unilateral and absolute right to determine whether or not one or more Employees will be eligible for Severance Benefits under this Plan and whether or not such Employees are otherwise determined to be Eligible Employees for purposes of this Plan.

 

10


Article 4. Amount of Benefits

4.1 Regular Severance Benefit

Subject to the offset described below in this Article 4, an Eligible Employee, who becomes eligible for benefits under this Plan in accordance with Article 3, will be entitled to a Regular Severance Benefit based on the Eligible Employee’s Base Pay and Salary Grade Level in effect on the date of the Eligible Employee’s Qualifying Termination of Employment. The Regular Severance is payable in a manner consistent with the Company’s payroll practices as to such Eligible Employee immediately prior to his or her Qualifying Termination of Employment, subject to the provisions of Article 5 below. The formula generally utilized to calculate the Regular Severance Benefit is as follows:

 

Global Grade Level

  

Formula (Minimum/Maximum)

2 - 6

   One week of Base Pay for each Year of Service with a minimum of 4 weeks of Base Pay and a maximum of 26 weeks of Base Pay

7 - 10

   One week of Base Pay for each Year of Service with a minimum of 6 weeks of Base Pay and a maximum of 26 weeks of Base Pay

11 – 13

   One week of Base Pay for each Year of Service with a minimum of 12 weeks of Base Pay and a maximum of 26 weeks of Base Pay

14 – 15

   39 weeks

16 – 18

   52 weeks

4.2 Substitute Severance Benefit

At its sole discretion, the Company, through the Committee or otherwise, may award a Substitute Severance Benefit to any Eligible Employee in such amount, or to be computed on such basis, as it may determine, to the extent that awarding such Substitute Severance Benefit will not trigger an excise tax under Code section 409A(a)(1)(B). Such awards may be granted for any reason deemed appropriate by the Committee. Such Substitute Severance Benefit will be in lieu of any benefit to which the Employee may otherwise be entitled under the above Regular Severance Benefit schedule as set forth in Section 4.1.

 

11


4.3 Company Discretion as to Amount of Benefit

Notwithstanding the provisions of Sections 4.1 and 4.2, the Company retains the unilateral and absolute right to determine what, if any, Regular Severance Benefit or Substitute Severance Benefit, as applicable, will be paid and whether or not the health benefits, career transition assistance and educational reimbursement benefits (all of which are described in Article 5) will be paid. The provisions of this Section 4.3 shall not be applied if doing so would trigger an excise tax under Code section 409A(a)(1)(B).

4.4 Offsets

If an Eligible Employee becomes entitled to severance benefits under any other severance plan, program or agreement maintained by the Company (including any Successor Employer or other successor in interest to the Company, but excluding any benefit payable under this Plan) as a result of a Termination of Employment and the Company determines that the Eligible Employee is eligible to receive benefits under this Plan, the Regular Severance Benefit or Substitute Severance Benefit, as applicable, payable under this Plan will be reduced by the severance benefits otherwise payable to the Eligible Employee under these other severance plans, programs, or agreements to the extent that making such a reduction will not trigger an excise tax under Code section 409A(a)(1)(B). Additionally, severance and other additional benefits available under this Plan are not intended to duplicate workers’ compensation wage replacement benefits, disability benefits, pay-in-lieu-of-notice, severance pay, or similar benefits under other benefit plans, severance programs, employment contracts, or applicable laws, such as the WARN act. Any such benefits to be paid under this Plan will be reduced by any such similar benefits required to be paid outside of the Plan to the extent that making such a reduction will not trigger an excise tax under Code section 409A(a)(1)(B).

 

12


Article 5. Benefits

5.1 Timing

 

(a) Subject to this Article 5, an Eligible Employee’s Regular Severance Benefit or Substitute Severance Benefit, as applicable, will begin to be paid in installments in a manner as provided by the Release and consistent with the Eligible Employee’s previously applicable payroll cycle as soon as administratively practicable after the latest of all of the following has occurred:

 

  (1) The Termination of Employment of the Eligible Employee; and

 

  (2) The Eligible Employee’s Release has been executed, become irrevocable and enforceable within the maximum time period for execution and revocation of the Release (as provided in the Release).

 

(b) If the total Regular Severance Benefit (or, if applicable, the total Substitute Severance Benefit) of an Eligible Employee exceeds two times that Eligible Employee’s annual pay limit (or two times annualized pay, if such amount is less) as determined under Treasury Regulations section 1.409A-1(b)(9)(iii), the amount that exceeds the two times annual pay limit (or two times annualized pay, if applicable) will be paid in a lump sum no later than March 15 th of the year next following the Eligible Employee’s Qualifying Termination of Employment.

All benefits payable pursuant to the terms of this Plan, including, for example, the Regular Severance Benefit, will be paid before the end of the second Plan Year following the Plan Year in which the Qualifying Termination of Employment occurs. The intent of this provision is to satisfy the requirements for an exemption for certain separation pay plans as specified under Treasury Regulation section 1.409A-1(b)(9) such that any benefit payable under this Plan, to the extent applicable, will not be treated as deferred compensation under Code section 409A.

 

(c) If an Eligible Employee is a Specified Employee, payment of the Eligible Employee’s Severance Benefits, to the extent not otherwise exempt from Code section 409A, will not commence prior to the first day of the month following the six-month anniversary of the Eligible Employee’s Termination of Employment. If a portion of the Eligible Employee’s Severance Benefits are subject to this Code section 409A restriction, that portion of the Severance Benefits will be paid in a lump sum as soon as administratively practicable after the expiration of the six-month period described herein.

 

(d)

Provided that the Committee has determined that a portion or all of an Eligible Employee’s Regular Severance Benefit or Substitute Severance Benefit, as applicable, is not subject to Code section 409A, the Committee has the unilateral right to accelerate payments to an Eligible Employee of the portion of

 

13


  the Eligible Employee’s Regular Severance Benefit or Substitute Severance Benefit, as applicable, that is not subject to Code section 409A, up to and including the right to satisfy the entire severance obligation arising under this Plan in a lump sum payment. However, an Eligible Employee has no right to request or demand that the payment of any Severance Benefits be accelerated.

 

(e) An Eligible Employee’s right to receive any installment payments under this Plan shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii).

5.2 Death While in Pay Status

Payment of Severance Benefits will not be made to a deceased former Eligible Employee. An Eligible Employee who dies while receiving Severance Benefits under this Plan will, upon his or her death, no longer be eligible to receive Severance Benefits. No surviving spouse or other beneficiary will be entitled to any benefits under this Plan, including, but not limited to, payments scheduled to have been paid to the Eligible Employee prior to his or her death.

5.3 Health Benefits

 

(a) After an Eligible Employee’s Termination of Employment from the Company and the Company’s determination that such Eligible Employee is entitled to a Regular Severance Benefit or Substitute Severance Benefit, as applicable, the Eligible Employee will also be entitled to certain additional benefits. The Company will contribute (if the Eligible Employee so selects) a portion of the total premium costs for medical, dental and vision coverages, available under plans sponsored by the Company, on behalf of the Eligible Employee and the Eligible Employee’s enrolled dependents.

 

(b) The Company’s contributions will be made for the same amount of time that the Eligible Employee is entitled to receive a Regular Severance Benefit, or Substitute Severance Benefit, as applicable, ignoring any acceleration of the payment of such benefit. For example, if an Eligible Employee is entitled to receive a Regular Severance Benefit equal to 26 weeks of Base Pay, the Eligible Employee will also be entitled to receive the above described Company contribution for health care coverages for 26 weeks, even if payment of the Eligible Employee’s Regular Severance Benefit is accelerated and paid in one lump sum payment.

Such coverage will be provided in a manner allowing the Company (or a Successor Employer) to offset the otherwise applicable time periods for which the Company is required to offer health care continuation coverage in a manner consistent with the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) or other applicable state law.

 

14


(c) The Company will make a contribution equal to the contribution currently made by the Company on behalf of its then similarly situated active employees for such health care coverages. The Eligible Employee will be required to pay the rate currently paid by regular, actively employed Company employees and the amount of such employee coverage will be deducted from the Eligible Employee’s regularly scheduled Regular Severance Benefit payments or Substitute Severance Benefit payments, as applicable, for as long as such Regular Severance Benefit payments or Substitute Severance Benefit payments, as applicable, are paid. If payment of the Regular Severance Benefit, or Substitute Severance Benefit, as applicable, is accelerated or otherwise ends before the time period set forth in Section 5.3(b) ends, the Eligible Employee will be required to pay the Company directly for amounts that would have been deducted from the Eligible Employee’s Regular Severance Benefit, or Substitute Severance Benefit, as applicable.

 

(d) After the expiration of the time period in which the Eligible Employee is entitled to receive Company contributions as described in Section 5.3(b), the Eligible Employee will be required to pay the portion of the premium payment previously paid by the Company.

5.4 Career Transition Assistance

After an Eligible Employee’s Termination of Employment from the Company, and the Company’s determination that such Eligible Employee is entitled to a Regular Severance Benefit or a Substitute Severance Benefit, as applicable, the Eligible Employee will be entitled to receive career transition assistance provided that the Eligible Employee receives such transition assistance during the period in which such Eligible Employee’s Regular Severance Benefit or Substitute Severance Benefit, as applicable, is scheduled to be paid, ignoring any acceleration of the payment of such benefit. The amount and type of these benefits will be determined in the Company’s sole discretion.

5.5 Educational Reimbursement Benefits

After an Eligible Employee’s Termination of Employment from the Company, and the Company’s determination that such Eligible Employee is entitled to a Regular Severance Benefit or a Substitute Severance Benefit, as applicable, the Company will continue to honor the contractual terms of any currently effective educational reimbursement agreement previously made between the Company and the Eligible Employee provided that the Eligible Employee commenced classes before the Company first notified such Eligible Employee of the Employee’s permanent layoff or the Relocation of the Eligible Employee’s work site. Additionally, to continue to be eligible for reimbursement, consistent with the terms of such reimbursement arrangement, as reflected in writing between the Company and the Eligible Employee, the Eligible Employee will need to continue to satisfy all the requirements of the educational reimbursement agreement when the agreement was made effective other than the requirement to remain employed with the Company which the Company specifically waives for purposes of this Plan only.

 

15


5.6 Status as Designated Reimbursement or In-Kind Payment Plans

For purposes of applicable federal law, including Code section 409A, the benefits described in Sections 5.3, 5.4, and 5.5 above shall be treated as being provided from a designated reimbursement or in-kind payment plan as defined in Treasury Regulations section 1.409A-1(b)(9)(v).

 

16


Article 6. Cost of the Plan

6.1 Plan Costs

All costs of the Plan, including all administrative costs, will be borne by the Company.

Nothing in the establishment of this Plan is to be construed as requiring the Company to create or maintain any separate fund, account or reserve to provide for the payment of the Company’s obligations under the Plan. All benefits under the Plan shall be paid from the general assets of the Company, or from a grantor trust established for the purpose of making such payments.

 

17


Article 7. Reemployment

7.1 Reemployment of Eligible Employee

If an Eligible Employee is reemployed by the Company or a Successor Employer (or provides services to the Company or a Successor Employer as an independent contractor) while Severance Benefits are still payable under the Plan, then all remaining Severance Benefits will cease, except as otherwise specified by the Company, in its sole discretion. A rehired Eligible Employee who received some or all of the Severance Benefits shall be entitled to retain such benefits.

 

18


Article 8. Amendment or Termination

8.1 Amendment or Termination

 

(a) The Company, acting through its Board or an appropriate officer, has the right, in its non-fiduciary settlor capacity, to amend or to terminate the Plan at any time, prospectively or retroactively, for any reason, without notice, including the right to discontinue or eliminate benefits.

 

(b) The Company shall amend the Plan by action of any of its officers. An officer of the Company shall execute the amendment, evidencing the adoption of such amendment.

 

19


Article 9. Plan Administration

9.1 Committee

 

(a) Except as otherwise provided in the Plan, the Committee shall be the administrator of the Plan, within the meaning of ERISA section 3(16)(A).

 

(b) As of the Effective Date, the Committee is the Actavis Employee Benefit Plans Committee. The Committee may be composed of as many members as the Board may appoint in writing from time to time. Members of the Committee may, but need not, be Employees.

 

(c) A member of the Committee may resign by delivering his or her written resignation to the Board. The resignation shall be effective as of the date it is received by the Committee or such other later date as is specified in the resignation notice. A Committee member may be removed at any time and for any reason by the Board.

9.2 Operation of the Committee

 

(a) A majority of the members of the Committee then in office shall constitute a quorum for the transaction of business. The Committee shall act by vote of a majority of the members present at a meeting at which there is a quorum, or by the unanimous written consent of all of the Committee members then in office.

 

(b) The Board shall designate a member of the Committee as the Chairperson of the Committee, and may designate a member of the Committee as the Vice Chairperson of the Committee.

 

(c) The members of the Committee may authorize one or more of their members to execute or deliver any instrument or instruments, or take other action, on their behalf. The members of the Committee may allocate any of the Committee’s powers and duties among individual members of the Committee, or to one or more officers or employees of Actavis, Inc. or a subsidiary of Actavis, Inc.

 

(d) All resolutions, proceedings, acts, and determinations of the Committee, with respect to the administration of the Plan, shall be recorded; and all such records, together with such documents and instruments as may be necessary for the administration of the Plan, shall be preserved by the Committee.

 

(e) Subject to the limitations contained in the Plan, the Committee shall be empowered from time to time, in its discretion, to establish rules for the exercise of the duties imposed upon the Committee under the Plan.

9.3 Agents

 

(a) The Board, Company, or the Committee may delegate such of its powers and duties as it deems desirable to any person, in which case every reference herein made to the Board, Company, or the Committee (as applicable) shall be deemed to mean or include the delegated persons as to matters within their jurisdiction.

 

20


(b) The Board, Company, or the Committee may also appoint one or more persons or agents to aid it in carrying out its duties and delegate such of its powers and duties as it deems desirable to such persons or agents.

 

(c) The Board, Company, or the Committee may employ such counsel, auditors, and other specialists and such clerical and other services as it may require in carrying out the provisions of the Plan, with the expenses therefore paid, as provided in Section 9.4.

9.4 Compensation and Expenses

 

(a) A member of the Committee shall serve without compensation for services as a member. Any member of the Committee may receive reimbursement of expenses properly and actually incurred in connection with his or her services as a member of the Committee, as provided in this Article 9.

 

(b) All expenses of administering the Plan shall be paid by the Company.

9.5 Committee’s Powers and Duties

The Committee shall have such powers and duties as may be necessary to discharge its functions hereunder, including the following:

 

(a) To engage actuaries, attorneys, accountants, appraisers, brokers, consultants, administrators, physicians or other persons and to rely upon the reports, advice, opinions or valuations of any such person except as required by law;

 

(b) To adopt administrative rules of the Plan that are not inconsistent with the Plan or applicable law and to amend or revoke any such rule;

 

(c) To construe the Plan and the administrative rules of the Plan;

 

(d) To determine questions of eligibility and vesting of Plan participants and beneficiaries;

 

(e) To determine entitlement to a benefit and to distributions or other rights of Plan participants and beneficiaries, and all other persons;

 

(f) To make findings of fact as necessary to make any determinations and decisions in the exercise of such discretionary duty, power and responsibility;

 

(g) To appoint claims and review officials to conduct claims procedures;

 

(h) To comply with the reporting and disclosure requirements of ERISA and other applicable law with respect to the Plan;

 

(i) To establish and maintain all Plan documents, provided legal approval has been obtained from Actavis, Inc.s’ Legal Department or its designee; and

 

21


(j) To delegate any duty, power or responsibility to any person or persons.

9.6 Committee’s Decisions Conclusive/Exclusive Benefit

The Committee shall have the exclusive right and discretionary authority to interpret the terms and provisions of the Plan and to resolve all questions arising thereunder, including the right to resolve and remedy ambiguities, inconsistencies, or omissions in the Plan, provided, however, that the construction necessary for the Plan to conform to the Code and ERISA shall in all cases control. Benefits under this Plan will be paid only if the Committee decides in its discretion that the Eligible Employee is entitled to them. Any and all disputes with respect to the Plan that may arise involving Eligible Employees shall be referred to the Committee, and its decisions shall be final, conclusive, and binding, except to the extent found by a court of competent jurisdiction to constitute an abuse of discretion. All findings of fact, interpretations, determinations, and decisions of the Committee in respect of any matter or question arising under the Plan shall be final, conclusive, and binding upon all persons, including, without limitation, Employees, and any and all other persons having, or claiming to have, any interest in or under the Plan and shall be given the maximum possible deference allowed by law. The Committee shall administer the Plan for the exclusive benefit of Eligible Employees.

9.7 Indemnity

 

(a) The Company (including any Successor Employer, as applicable) shall indemnify and hold harmless each of the following persons (“Indemnified Persons”) under the terms and conditions of Section 9.7(b):

 

  (1) The Committee; and

 

  (2) Each Employee, former Employee, current and former members of the Committee, or current or former members of the Board who has, or had, responsibility (whether by delegation from another person, an allocation of responsibilities under the terms of this Plan document, or otherwise) for a fiduciary duty, a non-fiduciary settlor function (such as deciding whether to approve a plan amendment), or a non-fiduciary administrative task relating to the Plan.

 

(b) The Company shall indemnify and hold harmless each Indemnified Person against any and all claims, losses, damages, and expenses, including reasonable attorneys’ fees and court costs, incurred by that person on account of his or her good-faith actions or failures to act with respect to his or her responsibilities relating to the Plan. The Company’s indemnification shall include payment of any amounts due under a settlement of any lawsuit or investigation, but only if the Company agrees to the settlement.

 

  (1) An Indemnified Person shall be indemnified under this Section 9.7 only if he or she notifies an Appropriate Person (defined below) at the Company of any claim asserted against or any investigation of the Indemnified Person that relates to the Indemnified Person’s responsibilities with respect to the Plan.

 

22


  (A) A person is an “Appropriate Person” to receive notice of the claim or investigation if a reasonable person would believe that the person notified would initiate action to protect the interests of the Company in response to the Indemnified Person’s notice.

 

  (B) The notice may be provided orally or in writing. The notice must be provided to the Appropriate Person promptly after the Indemnified Person becomes aware of the claim or investigation. No indemnification shall be provided under this Section 9.7 to the extent that the Company is materially prejudiced by the unreasonable delay of the Indemnified Person in notifying an Appropriate Person of the claim or investigation.

 

  (2) An Indemnified Person shall be indemnified under this Section 9.7 with respect to attorneys’ fees, court costs, or other litigation expenses or any settlement of such litigation only if the Indemnified Person agrees to permit the Company to select counsel and to conduct the defense of the lawsuit and agrees not to take any action in the lawsuit that the Company believes would be prejudicial to the Company’s interests.

 

  (3) No Indemnified Person, including an Indemnified Person who is a Former Eligible Employee, shall be indemnified under this Section 9.7 unless he or she makes himself or herself reasonably available to assist the Company with respect to the matters in issue and agrees to provide whatever documents, testimony, information, materials, or other forms of assistance that the Company shall reasonably request.

 

  (4) No Indemnified Person shall be indemnified under this Section 9.7 with respect to any action or failure to act that is judicially determined to constitute or be attributable to the gross negligence or willful misconduct of the Indemnified Person.

 

  (5) Payments of any indemnity under this Section 9.7 shall only be made from assets of the Company. The provisions of this Section 9.7 shall not preclude or limit such further indemnities or reimbursement under this Plan as allowable under applicable law, as may be available under insurance purchased by the Company, or as may be provided by the Company under any by-law, agreement or otherwise, provided that no expense shall be indemnified under this Section 9.7 that is otherwise indemnified by the Company, by an insurance contract purchased by the Company, or by this Plan.

 

23


9.8 Insurance

The Company may authorize the purchase of insurance to cover any liabilities or losses occurring by reason of the act or omission of any fiduciary. To the extent permitted by law, the Company may purchase insurance covering any fiduciary for any personal liability of such fiduciary with respect to any fiduciary responsibilities under this Plan. Any fiduciary may purchase insurance for his or her own account covering any personal liability under this Plan.

9.9 Fiduciaries

 

(a) The fiduciaries named in this Plan shall have only those specific powers, duties, responsibilities, and obligations as are specifically given to them under this Plan. The Company shall have the sole responsibility for making the payments specified under the Plan.

 

(b) The Committee shall be the named fiduciary under the Plan.

 

(c) A fiduciary may rely upon any direction, information, or action of another fiduciary as being proper under this Plan and is not required under this Plan to inquire into the propriety of any such direction, information, or action. It is intended under this Plan that each fiduciary shall be responsible for the proper exercise of his, her, or its own powers, duties, responsibilities, and obligations under this Plan and shall not be responsible for any act or failure to act of another fiduciary.

 

(d) Any person or group of persons may serve in more than one fiduciary capacity, with respect to the Plan. Nothing in this Section 9.9 shall be interpreted as preventing a fiduciary from properly delegating or allocating its responsibilities to other appropriate persons, in accordance with this Plan.

9.10 Notices

Each Eligible Employee shall be responsible for furnishing to the Company his or her current address. The Eligible Employee shall also be responsible for notifying the Company of any change in the above information. If an Eligible Employee does not provide the above information to the Company, the Committee may rely on the address of record of the Eligible Employee on file with the Company’s personnel office.

All notices or other communications from the Committee to an Eligible Employee, shall be deemed given and binding upon that person for all purposes of the Plan when delivered to, or when mailed first-class mail, postage prepaid, and addressed to that person at his or her address last appearing on the Committee’s records, and the Committee, and the Company shall not be obliged to search for or ascertain his or her whereabouts.

All notices or other communications from an Employee required or permitted under this Plan shall be provided to the person specified by the Committee, using such procedures as are prescribed by the Committee. The Committee may require that the

 

24


oral notice or communication be provided by telephoning a specific telephone number and, after calling that telephone number, by following a specified procedure. Any oral notice or oral communication from an Employee that is made in accordance with procedures prescribed by the Committee shall be deemed to have been duly given when all information requested by the person specified by the Committee is provided to such person, in accordance with the specified procedures.

9.11 Data

All persons entitled to benefits from the Plan must furnish to the Committee such documents, evidence, or information, as the Committee considers necessary or desirable for the purpose of administering the Plan, and it shall be a condition of the Plan that each such person must furnish such information and sign such documents as the Committee may require (such as the Release) before any benefits become payable from the Plan.

9.12 Claims Procedure

All decisions made under the procedure set out in this Section 9.12 shall be final, and there shall be no further right of appeal. No lawsuit may be initiated by any person before fully pursuing the procedures set out in this Section 9.12, including the appeal permitted pursuant to Section 9.12(c).

 

(a) The right of an Employee or any other person entitled to claim a benefit under the Plan (collectively “Claimants”) to a benefit shall be determined by the Committee, provided, however, that the Committee may delegate its responsibility to any person.

 

  (1) The Claimant (or an authorized representative of a Claimant) may file a claim for benefits by written notice to the Committee. The Committee shall establish procedures for determining whether a person is authorized to represent a Claimant.

 

  (2) Any claim for benefits under the Plan, pursuant to this Section 9.12, shall be filed with the Committee no later than one year after the date of the Employee’s Termination of Employment. The Committee in its sole discretion shall determine whether this limitation period has been exceeded.

 

  (3) Notwithstanding anything to the contrary in this Plan, the following shall not be a claim for purposes of this Section 9.12:

 

  (A) A request for determination of eligibility, participation, or benefit calculation under the Plan without an accompanying claim for benefits under the Plan. The determination of eligibility, participation, or benefit calculation under the Plan may be necessary to resolve a claim, in which case such determination shall be made in accordance with the claims procedures set forth in this Section 9.12.

 

25


  (B) Any casual inquiry relating to the Plan, including an inquiry about benefits or the circumstances under which benefits might be paid under the Plan.

 

  (C) A claim that is defective or otherwise fails to follow the procedures of the Plan ( e.g. , a claim that is addressed to a party other than the Committee or an oral claim).

 

  (D) An application or request for benefits under the Plan.

 

(b) If a claim for benefits is wholly or partially denied, the Committee shall, within a reasonable period of time, but no later than 90 days after receipt of the claim, notify the Claimant of the denial of benefits. If special circumstances justify extending the period up to an additional 90 days, the Claimant shall be given written notice of this extension within the initial 90-day period, and such notice shall set forth the special circumstances and the date a decision is expected. A notice of denial

 

  (1) Shall be written in a manner calculated to be understood by the Claimant; and

 

  (2) Shall contain

 

  (A) The specific reasons for denial of the claim;

 

  (B) Specific reference to the Plan provisions on which the denial is based;

 

  (C) A description of any additional material or information necessary for the Claimant to perfect the claim, along with an explanation as to why such material or information is necessary; and

 

  (D) An explanation of the Plan’s claim review procedures and the time limits applicable to such procedures, including a statement of the Claimant’s right to bring a civil action under ERISA section 502(a) following an adverse determination on review.

 

(c)

Within 60 days of the receipt by the Claimant of the written denial of his or her claim or, if the claim has not been granted, within a reasonable period of time (which shall not be less than the 90 or 180 days described in Section 9.12(b)), the Claimant (or an authorized representative of a Claimant) may file a written request with the Committee that it conduct a full review of the denial of the claim. In connection with the Claimant’s appeal, upon request, the Claimant may review and obtain copies of all documents, records and other information relevant to the Claimant’s claim for benefits (but not including any document, record or information that is subject to any attorney–client or work–product privilege) and may submit issues and comments in writing. The Claimant may submit written comments, documents, records, and other information relating to

 

26


  the claim for benefits. All comments, documents, records, and other information submitted by the Claimant shall be taken into account in the appeal without regard to whether such information was submitted or considered in the initial benefit determination.

 

(d) The Committee shall deliver to the Claimant a written decision on the claim promptly, but no later than 60 days after the receipt of the Claimant’s request for such review, unless special circumstances exist that justify extending this period up to an additional 60 days. If the period is extended, the Claimant shall be given written notice of this extension during the initial 60-day period and such notice shall set forth the special circumstances and the date a decision is expected. The decision on review of the denial of the claim

 

  (1) Shall be written in a manner calculated to be understood by the Claimant;

 

  (2) Shall include specific reasons for the decision;

 

  (3) Shall contain specific references to the Plan provisions on which the decision is based;

 

  (4) Shall contain a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and other information relevant to the Claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to U.S. Department of Labor Regulations section 2560; and

 

  (5) Shall contain a statement of the Claimant’s right to bring a civil action under ERISA section 502(a) following an adverse determination on review.

 

(e) No lawsuit may be initiated by any person before fully pursuing the procedures set out in this Section 9.12, including the appeal permitted pursuant to Section 9.12(c). In addition, no legal action may be commenced later than 365 days subsequent to the date of the written response of the Committee to a Claimant’s request for review pursuant to Section 9.12(d).

9.13 Effect of a Mistake

In the event of a mistake or misstatement as to the eligibility, participation, or service of any Employee or the amount of payments made or to be made to an Eligible Employee, the Committee shall, if possible, cause to be withheld or accelerated or otherwise make adjustment of the amounts of payments as will, in its sole judgment, result in the Eligible Employee receiving the proper amount of payments under the Plan. No withholding or acceleration will be done unless the Company determines that the Severance Benefits subject to acceleration or other adjustment are treated as being paid from a separation pay arrangement that is exempt from Code section 409A and such acceleration or other adjustment will not trigger an excise tax under Code section 409A(a)(1)(B).

 

27


Article 10. Miscellaneous Provisions

10.1 No Enlargement of Employee Rights

This Plan is strictly a voluntary undertaking on the part of the Company and shall not be deemed to constitute a contract between the Company with any Employee or to be consideration for, or an inducement to, or a condition of, the employment of any Employee. Nothing contained in the Plan shall be deemed to give any Employee the right to be retained in the service of the Company or any Affiliate or to interfere with the right of any of them to discharge or retire any person at any time. No one shall have any right to benefits, except to the extent provided in this Plan.

10.2 No Examination or Accounting

Neither this Plan nor any action taken thereunder shall be construed as giving any person the right to an accounting or to examine the books or affairs of the Company or an Affiliate.

10.3 Records Conclusive

The records of the Company shall be conclusive in respect to all matters involved in the administration of the Plan.

10.4 409A

Notwithstanding any provision of this Plan to the contrary, the Committee shall administer this Plan in a manner designed to comply with Code section 409A and the Committee shall disregard any Plan provision if the Committee determines that application of such Plan provision would subject the Eligible Employee to additional tax liability under Code section 409A(a)(1)(B).

10.5 Service of Legal Process

The members of the Committee are hereby designated as agent(s) of the Plan for the purpose of receiving legal process.

10.6 Governing Law

 

(a) The Plan shall be construed, administered, and governed in all respects under the applicable laws of the State of New Jersey, except to the extent pre-empted by federal law.

 

(b) Upon any change in the law or other determination that any term, condition or other provision of the Plan has been altered in any way, the Committee shall administer this Plan in accordance with such change, notwithstanding the terms of the Plan pending an amendment to this Plan.

10.7 Severability

If any provision of this Plan is held illegal or invalid for any reason, such illegality or invalidity will not affect the remaining provisions; instead, each provision is fully severable, and the Plan will be construed and enforced as if any illegal or invalid provision had never been included.

 

28


10.8 Missing Persons

The Committee shall establish rules if the Committee is unable to make payment of a benefit due under the terms of the Plan to an Eligible Employee because the whereabouts of the Eligible Employee cannot be ascertained.

10.9 Facility of Payment

Every person receiving or claiming benefits under this Plan is presumed to be mentally competent and of age until the date on which the Committee receives a written notice, in a form and manner acceptable to it, that such person is mentally incompetent or a minor, and that a guardian or other person legally vested with the care of such person or his or her estate has been appointed.

However, if the Committee should find that any person to whom a benefit is payable under this Plan is unable to care for his or her affairs because of any incompetency or is a minor, any payment due (unless a prior claim was made by a duly appointed legal representative) may be paid to the spouse, a child, a parent, or a brother or sister, or to any other person or institution that the Committee determines to have incurred expense for such person otherwise entitled to payment. To the extent permitted by law, any such payment so made shall be a complete discharge of any liability therefore under the Plan.

If a guardian of the estate or other person legally vested with the care of the estate of any person receiving or claiming benefits under the Plan is appointed by a court of competent jurisdiction, payments shall be made to such guardian or other person provided that proper proof of appointment and continuing qualification is furnished in a form and manner suitable to the Committee. To the extent permitted by law, such guardian or other person may act for the Eligible Employee and make any election required of or permitted by the Eligible Employee under this Plan, and such action or election shall be deemed to have been done by the Eligible Employee, and benefit payments may be made to such guardian or other person and any such payment shall be a complete discharge of any such liability under the Plan.

If an Eligible Employee dies while benefits remain unpaid, the Committee may, at its discretion, make direct payment to the individual or institution on whose charges the claim is based or to the Eligible Employee’s estate.

10.10 General Restrictions Against Alienation

The interest of any Eligible Employee under this Plan shall not in any event be subject to sale, assignment, or transfer, and each Eligible Employee is hereby prohibited from anticipating, encumbering, assigning, or in any manner alienating his or her interest hereunder and is without power to do so; provided, however, this provision shall not restrict the power or authority of the Committee, in accordance with the applicable provisions of the Plan, to disburse funds to the legally appointed guardian, executor, administrator, or personal representative of any Eligible Employee or pursuant to a valid domestic relations order certified and issued by a court of competent jurisdiction.

 

29


If any person attempts to take any action contrary to this Section 10.10, such action shall be void, and the Company may disregard such action and is not in any manner bound thereby, and it shall suffer no liability for any such disregard thereof. If the Committee is notified that any Eligible Employee has been adjudicated bankrupt or has purported to anticipate, sell, transfer, assign, or encumber any Plan distribution or payment, voluntarily or involuntarily, the Committee shall hold or apply such distribution or payment or any part thereof to, or for the benefit of, such Eligible Employee in such manner as the Committee finds appropriate.

10.11 Gender and Number

Except as otherwise indicated by the context, any masculine or feminine terminology shall also include the opposite gender, and the definition of any term in the singular or plural shall also include the opposite number.

10.12 Counterparts

This Plan may be executed in any number of counterparts, each of which shall be deemed to be an original. All the counterparts shall constitute but one and the same instrument and may be sufficiently evidenced by any one counterpart.

10.13 Withholding

The Company may withhold, or require the withholding, from any payment that is made under this Plan of any federal, state, or local taxes required by law to be withheld with respect to such payment. If the Company (or other person required by law to withhold a portion of a payment) is unable to withhold the full amount required to be withheld, the Eligible Employee shall make a cash payment to the Company of the difference between the amount required to be withheld and the amount that the Company was able to withhold. If the Eligible Employee does not make a cash payment to the Company of the amount set forth above, then the Company may withhold from any other amounts payable to the Eligible Employee by the Company the additional amount that is required to be withheld with respect to any benefit under this Plan.

 

30


In Witness Whereof , the authorized officers of the Company have signed this document on this the 9 day of January, 2014, but effective as of January 1, 2014.

 

      Actavis, Inc.
Attest:      
      By  

/s/ Patrick Eagan

        Its Chief Human Resources Officer – Global
By  

/s/ Ann Verillo

     
  Its VP, Global Compensation & Benefits      

 

31

Exhibit 10.2

 

  

Change of Control

Severance Pay Plan for

Certain Management Employees

of Actavis, Inc.

and Its U.S. Subsidiaries

  
   (Effective January 1, 2014)   

 

 


Contents

 

Article 1. Introduction

     1   

1.1 Establishment and Amendment of the Plan

     1   

1.2 Status of the Plan

     1   

Article 2. Definitions

     2   

2.1 Actavis plc

     2   

2.2 Actavis plc Board

     2   

2.3 Affiliate

     2   

2.4 Base Pay

     2   

2.5 Board

     2   

2.6 Broad-Based Severance Plan

     2   

2.7 Change of Control

     2   

2.8 Change of Control Severance Benefit

     4   

2.9 Code

     4   

2.10 Committee

     4   

2.11 Company

     4   

2.12 Disability

     4   

2.13 Effective Date

     4   

2.14 Eligible Employee

     4   

2.15 Employee

     5   

2.16 ERISA

     5   

2.17 Laid Off

     6   

2.18 Plan

     6   

2.19 Plan Year

     6   

2.20 Qualifying Termination of Employment

     6   

2.21 Reduction in Base Pay

     6   

2.22 Release

     6   

2.23 Relocation

     6   

2.24 Salary Grade Level

     6   

2.25 Severance Benefits

     6   

2.26 Specified Employee

     7   

2.27 Substitute Severance Benefit

     7   

2.28 Successor Employer

     7   

2.29 Termination of Employment

     8   

2.30 U.S. Subsidiary

     8   

Article 3. Eligibility for Benefits

     9   

3.1 Eligibility for Benefit

     9   

3.2 Release

     10   

3.3 409A Cure Period

     10   

3.4 Employment with a Successor

     10   

 

 

i


Article 4. Amount of Benefits

     11   

4.1 Change of Control Severance Benefit

     11   

4.2 Substitute Severance Benefit

     11   

4.3 Offsets

     11   

Article 5. Benefits

     12   

5.1 Timing

     12   

5.2 Death While in Pay Status

     13   

5.3 Health Benefits

     13   

5.4 Career Transition Assistance

     14   

5.5 Educational Reimbursement Benefits

     14   

5.6 Status as Designated Reimbursement or In-Kind Payment Plans

     14   

Article 6. Cost of the Plan

     15   

6.1 Plan Costs

     15   

Article 7. Reemployment

     16   

7.1 Reemployment of Eligible Employee

     16   

Article 8. Amendment or Termination

     17   

8.1 Amendment or Termination

     17   

8.2 One-Year Period Following Change of Control

     17   

Article 9. Plan Administration

     18   

9.1 Committee

     18   

9.2 Operation of the Committee

     18   

9.3 Agents

     18   

9.4 Compensation and Expenses

     19   

9.5 Committee’s Powers and Duties

     19   

9.6 Committee’s Decisions Conclusive/Exclusive Benefit

     20   

9.7 Indemnity

     20   

9.8 Insurance

     21   

9.9 Fiduciaries

     22   

9.10 Notices

     22   

9.11 Data

     23   

9.12 Claims Procedure

     23   

9.13 Effect of a Mistake

     25   

Article 10. Miscellaneous Provisions

     26   

10.1 No Enlargement of Employee Rights

     26   

10.2 No Examination or Accounting

     26   

10.3 Records Conclusive

     26   

10.4 409A

     26   

10.5 Service of Legal Process

     26   

10.6 Governing Law

     26   

10.7 Severability

     26   

10.8 Missing Persons

     27   

 

 

ii


10.9 Facility of Payment

     27   

10.10 General Restrictions Against Alienation

     27   

10.11 Gender and Number

     28   

10.12 Counterparts

     28   

10.13 Withholding

     28   

10.14 Limitation on Payments

     28   

 

 

iii


Article 1. Introduction

1.1 Establishment and Amendment of the Plan

Watson Pharmaceuticals, Inc. (“Watson”) originally adopted this Change of Control Severance Pay Plan for Certain Management Employees of Watson Pharmaceuticals, Inc. and Its U.S. Subsidiaries (“Plan”) effective as of January 1, 2006. The Plan was amended, effective as of January 1, 2008, to clarify certain provisions regarding the eligibility to receive Severance Benefits, the amount of the Severance Benefits to which an Eligible Employee may be entitled and for compliance with the final regulations under Internal Revenue Code (“Code”) section 409A. The Plan is now being amended, effective as of January 1, 2014, to reflect Actavis, Inc. as the sponsor of the Plan, and to make other changes to update the terms of the Plan. The Plan is designed to provide certain Eligible Employees who are involuntarily terminated from the Company for specific reasons with Severance Benefits.

1.2 Status of the Plan

The Plan is intended to provide a severance or separation pay benefit and is intended to constitute an “employee welfare benefit plan” under ERISA section 3(1). The provisions of this restated Plan are effective for Eligible Employees who become eligible for Severance Benefits on or after January 1, 2014.

 

 

1


Article 2. Definitions

2.1 Actavis plc

“Actavis plc” means Actavis plc, a public limited company organized under the laws of Ireland.

2.2 Actavis plc Board

“Actavis plc Board” means the Board of Directors of Actavis plc.

2.3 Affiliate

“Affiliate” means:

 

(a) Any entity or organization that, together with the Company, is part of a controlled group of corporations, within the meaning of Code section 414(b);

 

(b) Any trade or business that, together with the Company, is under common control, within the meaning of Code section 414(c); and

 

(c) Any entity or organization that is required to be aggregated with the Company, pursuant to Code section 414(m) or 414(o). An entity shall be an Affiliate only during the period when the entity has the required relationship, under this Section 2.3, with the Company.

2.4 Base Pay

“Base Pay” means an Eligible Employee’s gross, base weekly rate of pay or salary, excluding overtime, bonuses, commissions, premium pay, shift differentials, employer-paid employee benefits, expense reimbursements, and similar amounts. If the Eligible Employee is paid by the hour, Base Pay is the Eligible Employee’s regular hourly rate multiplied by his or her regularly scheduled hours per week.

2.5 Board

“Board” means the Board of Directors of Actavis, Inc.

2.6 Broad-Based Severance Plan

“Broad-Based Severance Plan” means the Employee Severance Pay Plan for Employees of Actavis, Inc. and Certain of Its U.S. Subsidiaries and any similar broad-based severance plan provided by the Company for employees.

2.7 Change of Control

“Change of Control” means the occurrence of any of the following:

 

(a) A sale of assets representing fifty percent (50%) or more of the net book value and of the fair market value of Actavis plc’s consolidated assets (in a single transaction or in a series of related transactions);

 

(b) A liquidation or dissolution of Actavis plc;

 

 

2


(c) A merger or consolidation involving Actavis plc or any subsidiary of Actavis plc after the completion of which:

 

  (1) In the case of a merger (other than a triangular merger) or a consolidation involving Actavis plc, the shareholders of Actavis plc immediately prior to the completion of the merger or consolidation beneficially own (within the meaning of Rule 13d–3 of the Securities Exchange Act of 1934, as amended, the “Exchange Act,” or comparable successor rules), directly or indirectly, outstanding voting securities representing less than sixty percent (60%) of the combined voting power of the surviving entity in the merger or consolidation; and

 

  (2) In the case of a triangular merger involving Actavis plc or a subsidiary of Actavis plc, the shareholders of Actavis plc immediately prior to the completion of the merger beneficially own (within the meaning of Rule 13d–3 of the Exchange Act, or comparable successor rules), directly or indirectly, outstanding voting securities representing less than sixty percent (60%) of the combined voting power of the surviving entity in the merger and less than sixty percent (60%) of the combined voting power of the parent of the surviving entity in the merger;

 

(d) An acquisition within a 12-month period by any person, entity, or “group” (within the meaning of sections 13(d) or 14(d) of the Exchange Act or any comparable successor provisions), other than any employee benefit plan, or related trust, sponsored or maintained by Actavis plc or an affiliate of Actavis plc and other than in a merger or consolidation of the type referred to in Section 2.7(c) above, of beneficial ownership (within the meaning of Rule 13d–3 of the Exchange Act, or comparable successor rules) of outstanding voting securities of Actavis plc representing more than thirty percent (30%) of the combined voting power of Actavis plc (in a single transaction or series of related transactions); or

 

(e) In the event that the individuals who, as of the effective date of the Plan, are members of the Actavis plc Board (“Incumbent Board”) cease, for any reason to constitute at least fifty percent (50%) of the Actavis plc Board; provided, that if the election, or nomination for election by the shareholders of Actavis plc, of any new member of the Actavis plc Board is approved by a vote of at least fifty percent (50%) of the Incumbent Board, such new member of the Actavis plc Board shall be considered as a member of the Incumbent Board.

Notwithstanding the foregoing, if a Change of Control constitutes a payment event with respect to any portion of a Severance Benefit that provides for the deferral of compensation and is subject to Section 409A of the Code, the transaction or event described in subsection (a), (b), (c), (d) or (e) with respect to such Severance Benefit (or portion thereof) must also constitute a “change in control event,” as defined in Treasury Regulation section 1.409A-3(i)(5) to the extent required by Section 409A.

The Committee shall have full and final authority, which shall be exercised in its sole discretion, to determine conclusively whether a Change of Control of Actavis plc has occurred pursuant to the above definition, and the date of the occurrence of such Change of Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change of Control is a “change in control event” as defined in Treasury Regulation section 1.409A-3(i)(5) shall be consistent with such regulation.

 

 

3


2.8 Change of Control Severance Benefit

“Change of Control Severance Benefit” means the benefit payable under Section 4.1 following both a Change of Control and a qualifying Termination of Employment.

2.9 Code

“Code” means the Internal Revenue Code of 1986, as amended.

2.10 Committee

“Committee” means the Actavis Employee Benefit Plans Committee or such body designated by the Company’s Board of Directors to replace such committee.

2.11 Company

“Company” means Actavis, Inc., a Nevada corporation, its U.S. Subsidiaries, and any successor in interest to Actavis or such U.S. Subsidiary.

2.12 Disability

“Disability” means a total physical or mental condition which, in the opinion of the Committee, causes an Eligible Employee to be totally and presumably permanently disabled, due to sickness or injury, so as to be completely and presumably permanently unable to perform the regular full-time active duties of his or her usual course of employment with the Company.

2.13 Effective Date

“Effective Date” means January 1, 2014.

2.14 Eligible Employee

“Eligible Employee” means an Employee who is employed at a Salary Grade Level of 13 or higher, as determined by the Company. Any Employee classified by the Company, in its sole discretion, as being in one or more of the following categories, shall not be an Eligible Employee:

 

(a) Any Employee with a currently effective employment agreement or contract (including a letter agreement) providing for severance benefits, unless such agreement or contract expressly refers to this Plan;

 

(b) Any Employee eligible for any other Change of Control pay plan, unless the Company notifies the individual in writing that he or she is eligible for this Plan;

 

(c) Any Employee absent from work on an indefinite unpaid leave of absence expected to exceed 90 days, unless eligibility is required by applicable federal or state law or the Company, after the leave of absence is approved, notifies the individual in writing that he or she is eligible for benefits under this Plan;

 

(d) Any newly hired Employee who is on a probationary period;

 

 

4


(e) Any Employee or other individual classified by the Company, in its sole discretion, as a temporary employee regardless of how long the individual is employed by the Company;

 

(f) Any individual whom the Company regards as an independent contractor, (including an employee of such contractor) as evidenced by the Company’s failure to withhold taxes from his or her compensation, even if such status as a contractor (or employment status, as applicable) is subsequently reclassified by the Internal Revenue Service, the Department of Labor, or any other governmental agency, court or other tribunal, unless and until the Company in fact designates such individual as an Employee and then only from the time of such designation forward without retroactive effect unless the Company, in its sole discretion, decides otherwise;

 

(g) Any Employee or other individual classified by the Company, in its sole discretion, as a project employee, unless the Company notifies the individual in writing that he or she is eligible for this Plan;

 

(h) Individuals who are leased employees of the Company within the meaning of Code section 414(n);

 

(i) Individuals classified by the Company as part-time employees and scheduled to work fewer than 30 hours per week;

 

(j) Any Employee who is otherwise eligible to participate in the Plan who agreed, in writing, to waive eligibility for Severance Benefits under the Plan;

 

(k) Employees classified by the Company as “foreign employees” meaning Employees based or employed in a foreign country or paid from a non-U.S. payroll (including an Employee based in the Commonwealth of Puerto Rico and paid from a payroll in Puerto Rico); and

 

(l) Employees whose terms and conditions of employment are subject to collective bargaining unless the applicable collective bargaining agreement specifically provides for their eligibility under this Plan.

2.15 Employee

“Employee” means an individual classified by the Company as a regular employee on the U.S. payroll, who is employed by the Company on a full-time basis (regularly scheduled to work 30 or more hours per week). Employees also include any such persons while on a leave of absence granted by the Company. For the avoidance of doubt, “Employee” does not include any individual based or employed, or paid from a payroll, in the Commonwealth of Puerto Rico.

2.16 ERISA

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

 

5


2.17 Laid Off

“Laid Off” means the elimination of an Employee’s position due to a restructuring or workforce reduction that results in such Employee’s employment being terminated.

2.18 Plan

“Plan” means the Change of Control Severance Pay Plan for Certain Management Employees of Actavis, Inc. and Its U.S. Subsidiaries as restated herein and as subsequently amended from time to time.

2.19 Plan Year

“Plan Year” means the consecutive 12-month period beginning January 1 and ending December 31.

2.20 Qualifying Termination of Employment

“Qualifying Termination of Employment” means an Eligible Employee’s Termination of Employment that, in the Company’s sole discretion, qualifies the Eligible Employee for Severance Benefits so long as the Eligible Employee meets all applicable requirements to receive Severance Benefits under the Plan.

2.21 Reduction in Base Pay

“Reduction in Base Pay” means a material reduction in Base Pay of 15 percent or more.

2.22 Release

“Release” means the executed and delivered irrevocable general release, in a form satisfactory to the Company, from the Employee to the Company releasing the Company from any and all claims relating to the Employee’s employment, including, but not limited to, retirement and welfare benefits with the Company.

2.23 Relocation

“Relocation” means the Company’s decision to relocate an Eligible Employee’s principal worksite such that it represents a material change in the geographic location at which the Eligible Employee must provide services to the Company (an increase in the one-way commute distance of 50 miles or more will be presumed to be material for purposes of this Plan and Treasury Regulation section 1.409A-1(n)).

2.24 Salary Grade Level

“Salary Grade Level” means the pay grade classification designated for each Employee by the Company at the Employee’s date of hire and as subsequently modified by the Company from time to time.

2.25 Severance Benefits

“Severance Benefits” means all benefits that may be payable under this Plan, including the:

 

(a) Change of Control Severance Benefit described in Section 4.1, as applicable;

 

(b) Substitute Severance Benefit described in Section 4.2, as applicable;

 

 

6


(c) Health Benefits described in Section 5.3, as applicable;

 

(d) Career Transition Assistance described in Section 5.4, as applicable; and

 

(e) Educational Reimbursement Benefits described in Section 5.5, as applicable.

2.26 Specified Employee

“Specified Employee” means an Eligible Employee qualifying as a “key employee” for purposes of Code section 416(i) (determined without regard to Code section 416(i)(5)) by satisfying any one of the following conditions at any time during the 12-month period ending on each December 31 (the “Identification Date”):

 

(a) The Eligible Employee is among the top-paid 50 officers of the Company with annual compensation (within the meaning of Code section 415(c)(3)) in excess of $165,000 (for the December 31, 2013 Identification Date) (subject to cost-of-living adjustments in accordance with Code section 416(i)(1));

 

(b) The Eligible Employee is a five-percent owner; or

 

(c) The Eligible Employee is a one-percent owner and has annual compensation (within the meaning of Code section 415(c)(3)) in excess of $150,000.

If an individual is a key employee as of an Identification Date, the individual shall be treated as a Specified Employee for the 12-month period beginning on the April 1 following the Identification Date. For the limited purpose of applying the “one-percent” and “five-percent” ownership rules, ownership is determined with respect to the entity for which the Employee provides services. The Code’s controlled and affiliated service group rules do not apply when determining an Employee’s ownership interests.

Notwithstanding the foregoing, an individual shall not be treated as a Specified Employee unless any stock of the Company or a corporation affiliated with it pursuant to Code section 414(b) or (c) is publicly traded on an established securities market or otherwise.

Notwithstanding the above, the Company may (but is not required to) adopt an alternative method for identifying Specified Employees, provided such method satisfies the requirements set forth at Treasury Regulation section 1.409A-1(i)(5).

2.27 Substitute Severance Benefit

“Substitute Severance Benefit” means a severance payment as provided in Section 4.2 meant to replace the Change of Control Severance Benefit. The Substitute Severance Benefit payment, if applicable, will be described in writing to the Eligible Employee.

2.28 Successor Employer

“Successor Employer” means any entity that acquires or assumes the Company’s facilities, operations or functions formerly carried out by the Company (such as the buyer of a facility or an entity to which a Company operation or function has been outsourced), or any Affiliate making an offer of employment at the request of the Company.

 

 

7


2.29 Termination of Employment

“Termination of Employment” means the date of the termination of the employment relationship between the Employee and the Company (including an Affiliate), when both the employee and the Company (including an Affiliate) reasonably anticipated that no future services would be performed after such date. For purposes of this Plan, the term Termination of Employment shall have the same meaning as the term “separation from service” as defined in Treasury Regulation section 1.409A-1(h) and the rules of such Treasury Regulation (and other applicable guidance) will be applied to determine whether an Eligible Employee has a Termination of Employment.

2.30 U.S. Subsidiary

“U.S. Subsidiary” means any domestic entity (other than Actavis, Inc.) in an unbroken chain of entities beginning with Actavis, Inc. if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least eighty (80%) of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.

 

 

8


Article 3. Eligibility for Benefits

3.1 Eligibility for Benefit

 

(a) Subject to the conditions provided in this Article 3, Severance Benefits will be payable to each Eligible Employee who:

 

  (1) Is employed by the Company on or after the Effective Date; and

 

  (2) Within 12 months after a Change of Control is either:

 

  (A) Permanently and involuntarily Laid Off by the Company or a Successor Employer (such that both the Eligible Employee and the Company or the Successor Employer have the reasonable belief at the time of the layoff, based on all of the surrounding facts and circumstances, that the Eligible Employee will not perform any future services for the Company or the Successor Employer);

 

  (B) Subject to a Reduction in Base Pay; or

 

  (C) Subject to a Relocation.

 

(b) An otherwise Eligible Employee shall forfeit his or her eligibility for Severance Benefits unless the Company is satisfied that such Employee has satisfactorily completed all reasonable transition requests made by the Company, including, but not limited to, informing the Company of the location of business files and returning Company property to the Company.

 

(c) An otherwise Eligible Employee will not be eligible for any benefits under this Plan if the otherwise Eligible Employee:

 

  (1) Resigns, or otherwise voluntarily terminates employment with the Company;

 

  (2) Terminates employment with the Company after being informed by the Company that he or she is being permanently and involuntarily Laid Off but prior to the date set by the Company for the Eligible Employee’s Termination of Employment;

 

  (3) Dies;

 

  (4) Incurs a Disability;

 

  (5) Is discharged by the Company for unsatisfactory performance or misconduct (including, but not limited to, conviction of any felony or a material violation of a Company policy); or

 

  (6) Materially breaches his or her duties to the Company and does not correct the breach within 30 days of receiving written notice of the breach from his or her immediate supervisor, designated Company officer, or one of their designees.

 

 

9


(d) The Company has the right to cancel or reschedule an Eligible Employee’s permanent layoff (or job loss from job elimination) from the Company or proposed Relocation or Reduction in Base Pay before the Eligible Employee’s Termination of Employment. If the Company takes any of the actions set forth in the preceding sentence, the Eligible Employee shall not be eligible to receive Severance Benefits unless he or she has a subsequent event that entitles him or her to receive Severance Benefits.

3.2 Release

No Severance Benefits will be provided under this Plan to an Eligible Employee unless such Eligible Employee executes and delivers to the Company a Release, and does not revoke such Release within the time period prescribed in the Release. The Release must be satisfactory to the Company in form and substance and must be delivered to the Company no later than the date prescribed by the Company.

3.3 409A Cure Period

Any Eligible Employee who initiates his or her own Termination of Employment in response to a Reduction in Base Pay or a Relocation will not be entitled to Severance Benefits unless such Eligible Employee:

 

(a) has timely (within 60 days of receiving notice of such Reduction in Base Pay or Relocation) notified the Company that the Company, including any Successor Employer, has proposed a Reduction in Base Pay or has proposed a change in the Eligible Employee’s principal work site which would constitute a Relocation;

 

(b) requested the Company to remedy such condition; and

 

(c) the Company, after receiving such notice, declines to remedy such condition within 30 days.

3.4 Employment with a Successor

An otherwise Eligible Employee will not be eligible for Severance Benefits if the Eligible Employee has been offered comparable employment by a Successor Employer, as determined by the Company in its sole discretion, to commence promptly after the Eligible Employee’s Termination of Employment with the Company (including any successor in interest to the Company).

 

 

10


Article 4. Amount of Benefits

4.1 Change of Control Severance Benefit

Subject to the offset described below in this Article 4 and the timing described in Article 5, an Eligible Employee, who becomes eligible for benefits under this Plan in accordance with the requirements of Article 3, will be entitled to 52 weeks of Base Pay payable in a lump sum.

4.2 Substitute Severance Benefit

At its sole discretion, the Company, prior to a Change of Control, through the Committee or otherwise, may award a Substitute Severance Benefit to any Eligible Employee in such amount, or to be computed on such basis, as it may determine, to the extent that awarding such Substitute Severance Benefit will not trigger an excise tax under Code section 409A(a)(1)(B). Such awards may be granted for any reason deemed appropriate by the Committee. Such Substitute Severance Benefit payment will be in lieu of any benefit to which the Employee may otherwise be entitled under the above Change of Control Severance Benefit provisions as set forth in Section 4.1.

4.3 Offsets

If an Eligible Employee becomes entitled to severance benefits under any other severance plan, program or agreement maintained by the Company (including any Successor Employer or other successor in interest to the Company, but excluding any benefit payable under this Plan) as a result of a Termination of Employment and the Company determines that the Eligible Employee is eligible to receive benefits under this Plan, the Change of Control Severance Benefit or Substitute Severance Benefit, as applicable, payable under this Plan will be reduced by the severance benefits otherwise payable to the Eligible Employee under these other severance plans, programs, or agreements to the extent that making such a reduction will not trigger an excise tax under Code section 409A(a)(1)(B). Additionally, severance and other additional benefits available under this Plan are not intended to duplicate workers’ compensation wage replacement benefits, disability benefits, pay-in-lieu-of-notice, severance pay, or similar benefits under other benefit plans, severance programs, employment contracts, or applicable laws, such as the WARN act. Any such benefits to be paid under this Plan will be reduced by any such similar benefits required to be paid outside of the Plan to the extent that making such a reduction will not trigger an excise tax under Code section 409A(a)(1)(B).

 

 

11


Article 5. Benefits

5.1 Timing

 

(a) Subject to this Article 5, an Eligible Employee’s Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable, will be paid in a lump sum in a manner as provided by the Release as soon as administratively practicable after the latest of all of the following has occurred:

 

  (1) the Termination of Employment of the Eligible Employee; and

 

  (2) the Eligible Employee’s Release has been executed, become irrevocable and enforceable within the maximum time period for execution and revocation of the Release (as provided in the Release).

 

(b) If the total Change of Control Severance Benefit (or, if applicable, the total Substitute Severance Benefit) of an Eligible Employee exceeds two times that Eligible Employee’s annual pay limit (or two times annualized pay, if such amount is less) as determined under Treasury Regulation section 1.409A-1(b)(9)(iii), the amount that exceeds the two times annual pay limit (or two times annualized pay, if applicable) will be paid in a lump sum no later than March 15 th of the year next following the Eligible Employee’s Qualifying Termination of Employment.

 

(c) All benefits payable pursuant to the terms of this Plan, including, for example, the Change of Control Severance Benefit, will be paid before the end of the second Plan Year following the Plan Year in which the Qualifying Termination of Employment occurs. The intent of this provision is to satisfy the requirements for an exemption for certain separation pay plans as specified under Treasury Regulation section 1.409A-1(b)(9) such that any benefit payable under this Plan, to the extent applicable, will not be treated as deferred compensation under Code section 409A.

 

(d) If an Eligible Employee is a Specified Employee, payment of the Eligible Employee’s Severance Benefits, to the extent not otherwise exempt from Code section 409A, will not commence prior to the first day of the month following the six-month anniversary of the Eligible Employee’s Termination of Employment. If a portion of the Eligible Employee’s Severance Benefits are subject to this Code section 409A restriction, that portion of the Severance Benefits will be paid in a lump sum as soon as administratively practicable after the expiration of the six-month period described herein.

 

(e)

Provided that the Committee has determined that a portion or all of an Eligible Employee’s Change of Control Severance Benefit or Substitute Severance Benefit, as applicable, is not subject to Code section 409A, the Committee has the unilateral right to accelerate payments to an Eligible Employee of the portion of the Eligible Employee’s Change of Control Severance Benefit or Substitute Severance Benefit, as applicable, that is not subject to Code section 409A, up to and including the right to satisfy the entire severance obligation

 

 

12


  arising under this Plan in a lump sum payment. However, an Eligible Employee has no right to request or demand that the payment of any Severance Benefits be accelerated.

 

(f) An Eligible Employee’s right to receive any installment payments under this Plan shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii).

5.2 Death While in Pay Status

Payment of Severance Benefits will not be made to a deceased former Eligible Employee. An Eligible Employee who dies while receiving Severance Benefits under this Plan will, upon his or her death, no longer be eligible to receive Severance Benefits. No surviving spouse or other beneficiary will be entitled to any benefits under this Plan, including, but not limited to, payments scheduled to have been paid to the Eligible Employee prior to his or her death.

5.3 Health Benefits

 

(a) After an Eligible Employee’s Termination of Employment from the Company and the Company’s determination that such Eligible Employee is entitled to a Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable, the Eligible Employee will also be entitled to certain additional benefits. The Company will contribute (if the Eligible Employee so selects) a portion of the total premium costs for medical, dental and vision coverages, available under plans sponsored by the Company, on behalf of the Eligible Employee and the Eligible Employee’s enrolled dependents.

 

(b) The Company’s contributions will be made for the same number of weeks that the Eligible Employee is entitled to receive a Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable. For example, if an Eligible Employee is entitled to receive a Change of Control Severance Benefit equal to 52 weeks of Base Pay, the Eligible Employee will be entitled to receive the above described Company contribution for health care coverages for 52 weeks, notwithstanding the fact that payment of the Eligible Employee’s Change of Control Severance Benefit is paid in one lump sum payment.

 

(c) Such coverage will be provided in a manner allowing the Company (or a Successor Employer) to offset the otherwise applicable time periods for which the Company is required to offer health care continuation coverage in a manner consistent with the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) or other applicable state law.

 

(d) The Company will make a contribution equal to the contribution currently made by the Company on behalf of its then similarly situated active employees for such health care coverages. The Eligible Employee will be required to pay directly to the Company the rate currently paid by regular, actively employed Company employees.

 

 

13


(e) After the expiration of the time period in which the Eligible Employee is entitled to receive Company contributions as described in Section 5.3(b), the Eligible Employee will be required to pay the portion of the premium payment previously paid by the Company.

5.4 Career Transition Assistance

After an Eligible Employee’s Termination of Employment from the Company and the Company’s determination that such Eligible Employee is entitled to a Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable, the Eligible Employee will be entitled to receive career transition assistance provided that the Eligible Employee will receive such transition assistance for the same number of weeks that the Eligible Employee is entitled to receive a Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable. The amount and type of these benefits will be determined in the Company’s sole discretion.

5.5 Educational Reimbursement Benefits

After an Eligible Employee’s Termination of Employment from the Company and the Company’s determination that such Eligible Employee is entitled to a Change of Control Severance Benefit, or Substitute Severance Benefit, as applicable, the Company will continue to honor the contractual terms of any currently effective educational reimbursement agreement previously made between the Company and the Eligible Employee provided that the Eligible Employee commenced classes before the Company first notified such Eligible Employee of the Employee’s permanent layoff or the Relocation of the Eligible Employee’s work site. Additionally, to continue to be eligible for reimbursement, consistent with the terms of such reimbursement arrangement, as reflected in writing between the Company and the Eligible Employee, the Eligible Employee will need to continue to satisfy all the requirements of the educational reimbursement agreement when the agreement was made effective other than the requirement to remain employed with the Company, which the Company specifically waives for purposes of this Plan only.

5.6 Status as Designated Reimbursement or In-Kind Payment Plans

For purposes of applicable federal law, including Code section 409A, the benefits described in Sections 5.3, 5.4 and 5.5 above shall be treated as being provided from a designated reimbursement or in-kind payment plan as defined in Treasury Regulation section 1.409A-1(b)(9)(v).

 

 

14


Article 6. Cost of the Plan

6.1 Plan Costs

All costs of the Plan, including all administrative costs, will be borne by the Company.

Nothing in the establishment of this Plan is to be construed as requiring the Company to create or maintain any separate fund, account or reserve to provide for the payment of the Company’s obligations under the Plan. All benefits under the Plan shall be paid from the general assets of the Company, or from a grantor trust established for the purpose of making such payments.

 

 

15


Article 7. Reemployment

7.1 Reemployment of Eligible Employee

If an Eligible Employee is reemployed by the Company or a Successor Employer (or provides services to the Company or a Successor Employer as an independent contractor) while any Severance Benefits are still payable under the Plan, then all remaining Severance Benefits will cease, except as otherwise specified by the Company, in its sole discretion. A rehired Eligible Employee who received some or all of the Severance Benefits shall be entitled to retain such benefits.

 

 

16


Article 8. Amendment or Termination

8.1 Amendment or Termination

 

(a) The Company, acting through its Board or an appropriate officer, has the right, in its non-fiduciary settlor capacity, to amend or to terminate the Plan at any time, prospectively or retroactively, for any reason, without notice, including the right to discontinue or eliminate benefits.

 

(b) The Company shall amend the Plan by action of any of its officers. An officer of the Company shall execute the amendment, evidencing the adoption of such amendment.

8.2 One-Year Period Following Change of Control

Notwithstanding the Company’s general right to amend or terminate the Plan at any time, the Company, including any successor entity to the Company, may not, for a period of one year following a Change of Control, amend or terminate this Plan in any manner that would adversely affect the rights of an Eligible Employee to Severance Benefits under this Plan.

 

 

17


Article 9. Plan Administration

9.1 Committee

 

(a) Except as otherwise provided in the Plan, the Committee shall be the administrator of the Plan, within the meaning of ERISA section 3(16)(A).

 

(b) As of the Effective Date, the Committee is the Actavis Employee Benefit Plans Committee. The Committee may be composed of as many members as the Board may appoint in writing from time to time. Members of the Committee may, but need not, be Employees.

 

(c) A member of the Committee may resign by delivering his or her written resignation to the Board. The resignation shall be effective as of the date it is received by the Committee or such other later date as is specified in the resignation notice. A Committee member may be removed at any time and for any reason by the Board.

9.2 Operation of the Committee

 

(a) A majority of the members of the Committee then in office shall constitute a quorum for the transaction of business. The Committee shall act by vote of a majority of the members present at a meeting at which there is a quorum, or by the unanimous written consent of all of the Committee members then in office.

 

(b) The Board shall designate a member of the Committee as the Chairperson of the Committee, and may designate a member of the Committee as the Vice Chairperson of the Committee.

 

(c) The members of the Committee may authorize one or more of their members to execute or deliver any instrument or instruments, or take other action on their behalf. The members of the Committee may allocate any of the Committee’s powers and duties among individual members of the Committee, or to one or more officers or employees of Actavis, Inc. or a subsidiary of Actavis, Inc.

 

(d) All resolutions, proceedings, acts, and determinations of the Committee, with respect to the administration of the Plan, shall be recorded; and all such records, together with such documents and instruments as may be necessary for the administration of the Plan, shall be preserved by the Committee.

 

(e) Subject to the limitations contained in the Plan, the Committee shall be empowered from time to time in its discretion to establish rules for the exercise of the duties imposed upon the Committee under the Plan.

9.3 Agents

 

(a) The Board, Company, or the Committee may delegate such of its powers and duties as it deems desirable to any person, in which case every reference herein made to the Board, Company, or the Committee (as applicable) shall be deemed to mean or include the delegated persons as to matters within their jurisdiction.

 

 

18


(b) The Board, Company, or the Committee may also appoint one or more persons or agents to aid it in carrying out its duties and delegate such of its powers and duties as it deems desirable to such persons or agents.

 

(c) The Board, Company, or the Committee may employ such counsel, auditors, and other specialists and such clerical and other services as it may require in carrying out the provisions of the Plan, with the expenses therefore paid, as provided in Section 9.4.

9.4 Compensation and Expenses

 

(a) A member of the Committee shall serve without compensation for services as a member. Any member of the Committee may receive reimbursement of expenses properly and actually incurred in connection with his or her services as a member of the Committee, as provided in this Article 9.

 

(b) All expenses of administering the Plan shall be paid by the Company.

9.5 Committee’s Powers and Duties

The Committee shall have such powers and duties as may be necessary to discharge its functions hereunder, including the following:

 

(a) To engage actuaries, attorneys, accountants, appraisers, brokers, consultants, administrators, physicians or other persons and to rely upon the reports, advice, opinions or valuations of any such person except as required by law;

 

(b) To adopt administrative rules of the Plan that are not inconsistent with the Plan or applicable law and to amend or revoke any such rule;

 

(c) To construe the Plan and the administrative rules of the Plan;

 

(d) To determine questions of eligibility and vesting of Plan participants and beneficiaries;

 

(e) To determine entitlement to a benefit and to distributions or other rights of Plan participants and beneficiaries, and all other persons;

 

(f) To make findings of fact as necessary to make any determinations and decisions in the exercise of such discretionary duty, power and responsibility;

 

(g) To appoint claims and review officials to conduct claims procedures;

 

(h) To comply with the reporting and disclosure requirements of ERISA and other applicable law with respect to the Plan;

 

(i) To establish and maintain all Plan documents, provided legal approval has been obtained from Actavis, Inc.s’ Legal Department or its designee; and

 

(j) To delegate any duty, power or responsibility to any person or persons.

 

 

19


9.6 Committee’s Decisions Conclusive/Exclusive Benefit

The Committee shall have the exclusive right and discretionary authority to interpret the terms and provisions of the Plan and to resolve all questions arising thereunder, including the right to resolve and remedy ambiguities, inconsistencies, or omissions in the Plan, provided, however, that the construction necessary for the Plan to conform to the Code and ERISA shall in all cases control. Benefits under this Plan will be paid only if the Committee decides, in its discretion, that the Eligible Employee is entitled to them. Any and all disputes with respect to the Plan that may arise involving Eligible Employees shall be referred to the Committee, and its decisions shall be final, conclusive, and binding, except to the extent found by a court of competent jurisdiction to constitute an abuse of discretion. All findings of fact, interpretations, determinations, and decisions of the Committee in respect of any matter or question arising under the Plan shall be final, conclusive, and binding upon all persons, including, without limitation, Employees, and any and all other persons having, or claiming to have, any interest in or under the Plan and shall be given the maximum possible deference allowed by law. The Committee shall administer the Plan for the exclusive benefit of Eligible Employees.

9.7 Indemnity

 

(a) The Company (including any Successor Employer, as applicable) shall indemnify and hold harmless each of the following persons (“Indemnified Persons”) under the terms and conditions of Section 9.7(b):

 

  (1) The Committee; and

 

  (2) Each Employee, former Employee, current and former members of the Committee, or current or former members of the Board who has, or had, responsibility (whether by delegation from another person, an allocation of responsibilities under the terms of this Plan document, or otherwise) for a fiduciary duty, a non-fiduciary settlor function (such as deciding whether to approve a plan amendment), or a non-fiduciary administrative task relating to the Plan.

 

(b) The Company shall indemnify and hold harmless each Indemnified Person against any and all claims, losses, damages, and expenses, including reasonable attorneys’ fees and court costs, incurred by that person on account of his or her good-faith actions or failures to act with respect to his or her responsibilities relating to the Plan. The Company’s indemnification shall include payment of any amounts due under a settlement of any lawsuit or investigation, but only if the Company agrees to the settlement.

 

  (1) An Indemnified Person shall be indemnified under this Section 9.7 only if he or she notifies an Appropriate Person (defined below) at the Company of any claim asserted against or any investigation of the Indemnified Person that relates to the Indemnified Person’s responsibilities with respect to the Plan.

 

  (A) A person is an “Appropriate Person” to receive notice of the claim or investigation if a reasonable person would believe that the person notified would initiate action to protect the interests of the Company in response to the Indemnified Person’s notice.

 

 

20


  (B) The notice may be provided orally or in writing. The notice must be provided to the Appropriate Person promptly after the Indemnified Person becomes aware of the claim or investigation. No indemnification shall be provided under this Section 9.7 to the extent that the Company is materially prejudiced by the unreasonable delay of the Indemnified Person in notifying an Appropriate Person of the claim or investigation.

 

  (2) An Indemnified Person shall be indemnified under this Section 9.7 with respect to attorneys’ fees, court costs, or other litigation expenses or any settlement of such litigation only if the Indemnified Person agrees to permit the Company to select counsel and to conduct the defense of the lawsuit and agrees not to take any action in the lawsuit that the Company believes would be prejudicial to the Company’s interests.

 

  (3) No Indemnified Person, including an Indemnified Person who is a Former Eligible Employee, shall be indemnified under this Section 9.7 unless he or she makes himself or herself reasonably available to assist the Company with respect to the matters in issue and agrees to provide whatever documents, testimony, information, materials, or other forms of assistance that the Company shall reasonably request.

 

  (4) No Indemnified Person shall be indemnified under this Section 9.7 with respect to any action or failure to act that is judicially determined to constitute or be attributable to the gross negligence or willful misconduct of the Indemnified Person.

 

  (5) Payments of any indemnity under this Section 9.7 shall only be made from assets of the Company. The provisions of this Section 9.7 shall not preclude or limit such further indemnities or reimbursement under this Plan as allowable under applicable law, as may be available under insurance purchased by the Company, or as may be provided by the Company under any by-law, agreement or otherwise, provided that no expense shall be indemnified under this Section 9.7 that is otherwise indemnified by the Company, by an insurance contract purchased by the Company, or by this Plan.

9.8 Insurance

The Company may authorize the purchase of insurance to cover any liabilities or losses occurring by reason of the act or omission of any fiduciary. To the extent permitted by law, the Company may purchase insurance covering any fiduciary for any personal liability of such fiduciary with respect to any fiduciary responsibilities under this Plan. Any fiduciary may purchase insurance for his or her own account covering any personal liability under this Plan.

 

 

21


9.9 Fiduciaries

 

(a) The fiduciaries named in this Plan shall have only those specific powers, duties, responsibilities, and obligations as are specifically given to them under this Plan. The Company shall have the sole responsibility for making the payments specified under the Plan.

 

(b) Except as otherwise provided under the Plan, the Committee shall be the named fiduciary under the Plan and shall be the administrator of the Plan, within the meaning of Code section 414(g) and ERISA section 3(16)(A).

 

(c) A fiduciary may rely upon any direction, information, or action of another fiduciary as being proper under this Plan and is not required under this Plan to inquire into the propriety of any such direction, information, or action. It is intended under this Plan that each fiduciary shall be responsible for the proper exercise of his, her, or its own powers, duties, responsibilities, and obligations under this Plan and shall not be responsible for any act or failure to act of another fiduciary.

 

(d) Any person or group of persons may serve in more than one fiduciary capacity, with respect to the Plan. Nothing in this Section 9.9 shall be interpreted as preventing a fiduciary from properly delegating or allocating its responsibilities to other appropriate persons, in accordance with this Plan.

9.10 Notices

Each Eligible Employee shall be responsible for furnishing to the Company his or her current address. The Eligible Employee shall also be responsible for notifying the Company of any change in the above information. If an Eligible Employee does not provide the above information to the Company, the Committee may rely on the address of record of the Eligible Employee on file with the Company’s personnel office.

All notices or other communications from the Committee to an Eligible Employee shall be deemed given and binding upon that person for all purposes of the Plan when delivered to, or when mailed first-class mail, postage prepaid, and addressed to that person at his or her address last appearing on the Committee’s records, and the Committee, and the Company shall not be obliged to search for or ascertain his or her whereabouts.

All notices or other communications from an Employee required or permitted under this Plan shall be provided to the person specified by the Committee, using such procedures as are prescribed by the Committee. The Committee may require that the oral notice or communication be provided by telephoning a specific telephone number and, after calling that telephone number, by following a specified procedure. Any oral notice or oral communication from an Employee that is made in accordance with procedures prescribed by the Committee shall be deemed to have been duly given when all information requested by the person specified by the Committee is provided to such person, in accordance with the specified procedures.

 

 

22


9.11 Data

All persons entitled to benefits from the Plan must furnish to the Committee such documents, evidence, or information, as the Committee considers necessary or desirable for the purpose of administering the Plan, and it shall be a condition of the Plan that each such person must furnish such information and sign such documents as the Committee may require (such as the Release) before any benefits become payable from the Plan.

9.12 Claims Procedure

All decisions made under the procedure set out in this Section 9.12 shall be final, and there shall be no further right of appeal. No lawsuit may be initiated by any person before fully pursuing the procedures set out in this Section 9.12, including the appeal permitted pursuant to Section 9.12(c).

 

(a) The right of an Employee or any other person entitled to claim a benefit under the Plan (collectively “Claimants”) to a benefit shall be determined by the Committee, provided, however, that the Committee may delegate its responsibility to any person.

 

  (1) The Claimant (or an authorized representative of a Claimant) may file a claim for benefits by written notice to the Committee. The Committee shall establish procedures for determining whether a person is authorized to represent a Claimant.

 

  (2) Any claim for benefits under the Plan, pursuant to this Section 9.12, shall be filed with the Committee no later than one year after the date of the Employee’s Termination of Employment. The Committee in its sole discretion shall determine whether this limitation period has been exceeded.

 

  (3) Notwithstanding anything to the contrary in this Plan, the following shall not be a claim for purposes of this Section 9.12:

 

  (A) A request for determination of eligibility, participation, or benefit calculation under the Plan without an accompanying claim for benefits under the Plan. The determination of eligibility, participation, or benefit calculation under the Plan may be necessary to resolve a claim, in which case such determination shall be made in accordance with the claims procedures set forth in this Section 9.12.

 

  (B) Any casual inquiry relating to the Plan, including an inquiry about benefits or the circumstances under which benefits might be paid under the Plan.

 

 

23


  (C) A claim that is defective or otherwise fails to follow the procedures of the Plan ( e.g. , a claim that is addressed to a party other than the Committee or an oral claim).

 

  (D) An application or request for benefits under the Plan.

 

(b) If a claim for benefits is wholly or partially denied, the Committee shall, within a reasonable period of time, but no later than 90 days after receipt of the claim, notify the Claimant of the denial of benefits. If special circumstances justify extending the period up to an additional 90 days, the Claimant shall be given written notice of this extension within the initial 90-day period, and such notice shall set forth the special circumstances and the date a decision is expected. A notice of denial:

 

  (1) Shall be written in a manner calculated to be understood by the Claimant; and

 

  (2) Shall contain

 

  (A) The specific reasons for denial of the claim;

 

  (B) Specific reference to the Plan provisions on which the denial is based;

 

  (C) A description of any additional material or information necessary for the Claimant to perfect the claim, along with an explanation as to why such material or information is necessary; and

 

  (D) An explanation of the Plan’s claim review procedures and the time limits applicable to such procedures, including a statement of the Claimant’s right to bring a civil action under ERISA section 502(a) following an adverse determination on review.

 

(c) Within 60 days of the receipt by the Claimant of the written denial of his or her claim or, if the claim has not been granted, within a reasonable period of time (which shall not be less than the 90 or 180 days described in Section 9.12(b)), the Claimant (or an authorized representative of a Claimant) may file a written request with the Committee that it conduct a full review of the denial of the claim. In connection with the Claimant’s appeal, upon request, the Claimant may review and obtain copies of all documents, records and other information relevant to the Claimant’s claim for benefits (but not including any document, record or information that is subject to any attorney–client or work–product privilege) and may submit issues and comments in writing. The Claimant may submit written comments, documents, records, and other information relating to the claim for benefits. All comments, documents, records, and other information submitted by the Claimant shall be taken into account in the appeal without regard to whether such information was submitted or considered in the initial benefit determination.

 

 

24


(d) The Committee shall deliver to the Claimant a written decision on the claim promptly, but no later than 60 days after the receipt of the Claimant’s request for such review, unless special circumstances exist that justify extending this period up to an additional 60 days. If the period is extended, the Claimant shall be given written notice of this extension during the initial 60-day period and such notice shall set forth the special circumstances and the date a decision is expected. The decision on review of the denial of the claim:

 

  (1) Shall be written in a manner calculated to be understood by the Claimant;

 

  (2) Shall include specific reasons for the decision;

 

  (3) Shall contain specific references to the Plan provisions on which the decision is based;

 

  (4) Shall contain a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and other information relevant to the Claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to U.S. Department of Labor Regulations section 2560; and

 

  (5) Shall contain a statement of the Claimant’s right to bring a civil action under ERISA section 502(a) following an adverse determination on review.

 

(e) No lawsuit may be initiated by any person before fully pursuing the procedures set out in this Section 9.12, including the appeal permitted pursuant to Section 9.12(c). In addition, no legal action may be commenced later than 365 days subsequent to the date of the written response of the Committee to a Claimant’s request for review pursuant to Section 9.12(d).

9.13 Effect of a Mistake

In the event of a mistake or misstatement as to the eligibility, participation, or service of any Employee or the amount of payments made or to be made to an Eligible Employee, the Committee shall, if possible, cause to be withheld or accelerated or otherwise make adjustment of the amounts of payments as will, in its sole judgment, result in the Eligible Employee receiving the proper amount of payments under the Plan. No withholding or acceleration will be done unless the Company determines that the Severance Benefits subject to acceleration or other adjustment are treated as being paid from a separation pay arrangement that is exempt from Code section 409A and such acceleration or other adjustment will not trigger an excise tax under Code section 409A(a)(1)(B).

 

 

25


Article 10. Miscellaneous Provisions

10.1 No Enlargement of Employee Rights

This Plan is strictly a voluntary undertaking on the part of the Company and shall not be deemed to constitute a contract between the Company with any Employee or to be consideration for, or an inducement to, or a condition of, the employment of any Employee. Nothing contained in the Plan shall be deemed to give any Employee the right to be retained in the service of the Company or any Affiliate or to interfere with the right of any of them to discharge or retire any person at any time. No one shall have any right to benefits, except to the extent provided in this Plan.

10.2 No Examination or Accounting

Neither this Plan nor any action taken thereunder shall be construed as giving any person the right to an accounting or to examine the books or affairs of the Company or an Affiliate.

10.3 Records Conclusive

The records of the Company shall be conclusive in respect to all matters involved in the administration of the Plan.

10.4 409A

Notwithstanding any provision of this Plan to the contrary, the Committee shall administer this Plan in a manner designed to comply with Code section 409A and the Committee shall disregard any Plan provision if the Committee determines that application of such Plan provision would subject the Eligible Employee to additional tax liability under Code section 409A(a)(1)(B).

10.5 Service of Legal Process

The members of the Committee are hereby designated as agent(s) of the Plan for the purpose of receiving legal process.

10.6 Governing Law

 

(a) The Plan shall be construed, administered, and governed in all respects under the applicable laws of the State of New Jersey, except to the extent pre-empted by federal law.

 

(b) Upon any change in the law or other determination that any term, condition or other provision of the Plan has been altered in any way, the Committee shall administer this Plan in accordance with such change, notwithstanding the terms of the Plan pending an amendment to this Plan.

10.7 Severability

If any provision of this Plan is held illegal or invalid for any reason, such illegality or invalidity will not affect the remaining provisions; instead, each provision is fully severable, and the Plan will be construed and enforced as if any illegal or invalid provision had never been included.

 

 

26


10.8 Missing Persons

The Committee shall establish rules if the Committee is unable to make payment of a benefit due under the terms of the Plan to an Eligible Employee because the whereabouts of the Eligible Employee cannot be ascertained.

10.9 Facility of Payment

Every person receiving or claiming benefits under this Plan is presumed to be mentally competent and of age until the date on which the Committee receives a written notice, in a form and manner acceptable to it, that such person is mentally incompetent or a minor, and that a guardian or other person legally vested with the care of such person or his or her estate has been appointed.

However, if the Committee should find that any person to whom a benefit is payable under this Plan is unable to care for his or her affairs because of any incompetency or is a minor, any payment due (unless a prior claim was made by a duly appointed legal representative) may be paid to the spouse, a child, a parent, or a brother or sister, or to any other person or institution that the Committee determines to have incurred expense for such person otherwise entitled to payment. To the extent permitted by law, any such payment so made shall be a complete discharge of any liability therefore under the Plan.

If a guardian of the estate or other person legally vested with the care of the estate of any person receiving or claiming benefits under the Plan is appointed by a court of competent jurisdiction, payments shall be made to such guardian or other person provided that proper proof of appointment and continuing qualification is furnished in a form and manner suitable to the Committee. To the extent permitted by law, such guardian or other person may act for the Eligible Employee and make any election required of or permitted by the Eligible Employee under this Plan, and such action or election shall be deemed to have been done by the Eligible Employee, and benefit payments may be made to such guardian or other person and any such payment shall be a complete discharge of any such liability under the Plan.

10.10 General Restrictions Against Alienation

The interest of any Eligible Employee under this Plan shall not in any event be subject to sale, assignment, or transfer, and each Eligible Employee is hereby prohibited from anticipating, encumbering, assigning, or in any manner alienating his or her interest hereunder and is without power to do so; provided, however, this provision shall not restrict the power or authority of the Committee, in accordance with the applicable provisions of the Plan, to disburse funds to the legally appointed guardian, executor, administrator, or personal representative of any Eligible Employee or pursuant to a valid domestic relations order certified and issued by a court of competent jurisdiction.

If any person attempts to take any action contrary to this Section 10.10, such action shall be void and the Company may disregard such action and is not in any manner bound thereby, and it shall suffer no liability for any such disregard thereof. If the Committee is notified that any Eligible Employee has been adjudicated bankrupt or has purported to anticipate, sell, transfer, assign, or encumber any Plan distribution or payment, voluntarily or involuntarily, the Committee shall hold or apply such distribution or payment or any part thereof to, or for the benefit of, such Eligible Employee in such manner as the Committee finds appropriate.

 

 

27


10.11 Gender and Number

Except as otherwise indicated by the context, any masculine or feminine terminology shall also include the opposite gender, and the definition of any term in the singular or plural shall also include the opposite number.

10.12 Counterparts

This Plan may be executed in any number of counterparts, each of which shall be deemed to be an original. All the counterparts shall constitute but one and the same instrument and may be sufficiently evidenced by any one counterpart.

10.13 Withholding

The Company may withhold, or require the withholding, from any payment that is made under this Plan of any federal, state, or local taxes required by law to be withheld with respect to such payment. If the Company (or other person required by law to withhold a portion of a payment) is unable to withhold the full amount required to be withheld, the Eligible Employee shall make a cash payment to the Company of the difference between the amount required to be withheld and the amount that the Company was able to withhold. If the Eligible Employee does not make a cash payment to the Company of the amount set forth above, then the Company may withhold from any other amounts payable to the Eligible Employee by the Company the additional amount that is required to be withheld with respect to any benefit under this Plan.

10.14 Limitation on Payments

 

(a)

Notwithstanding any other provisions of this Plan, in the event that any payment or benefit received or to be received by the Eligible Employee (whether pursuant to the terms of this Plan or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Article 4 of this Plan, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Eligible Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal

 

 

28


  exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Eligible Employee that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to the Eligible Employee that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any stock option or other equity award with respect to the Company or Actavis plc’s common stock that are exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to the Eligible Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any stock option or other equity award with respect to the Company or Actavis plc’s common stock that are exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any stock option or other equity award with respect to the Company or Actavis plc’s common stock that are exempt from Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to the Eligible Employee and, to the extent economically equivalent, in a pro rata manner.

 

(b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Eligible Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (the “280G Firm”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of the 280G Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

 

(c)

The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Eligible Employee and the Company within fifteen (15) days after notification from either the Company or the Eligible Employee that the Eligible Employee may receive payments which may be “parachute payments.” The Eligible Employee and the Company will each provide the 280G Firm access to and copies of any books, records, and

 

 

29


  documents in their possession as may be reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 10.14(c). The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Section 10.14(c) will be borne by the Company.

 

 

30


In Witness Whereof , the authorized officers of the Company have signed this document and have affixed the corporate seal on this the 1st day of May, 2014, but effective as of January 1, 2014.

 

        Actavis, Inc.
Attest:        
        By  

/s/ Patrick Eagan

          Its  

Chief Human Resources Officer – Global

By  

/s/ Ann Verillo

       
  Its  

VP, Global Compensation & Benefits

       
        (Corporate Seal)

 

 

31

Exhibit 31.1

Certification of Chief Executive Officer

Pursuant to Rule 13a-14(a) Under the Securities Exchange Act of 1934

I, Paul M. Bisaro, President and Chief Executive Officer, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Actavis plc;

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;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: May 5, 2014

 

By:   /s/ PAUL M. BISARO
 

Paul M. Bisaro

President and Chief Executive Officer

 

(Principal Executive Officer)

Exhibit 31.2

Certification of Chief Financial Officer

Pursuant to Rule 13a-14(a) Under the Securities Exchange Act of 1934

I, R. Todd Joyce — Chief Financial Officer — Global, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Actavis plc;

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;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: May 5, 2014

 

By:   /s/ R. TODD JOYCE
 

R. Todd Joyce

Chief Financial Officer — Global

 

(Principal Financial Officer)

Exhibit 32.1

Certification of Chief Executive Officer

Pursuant to 18 U.S.C. of Section 1350, as Adopted by

Section 906 of the Sarbanes-Oxley Act of 2002

The undersigned officer of Actavis plc (the “Company”), hereby certifies, to such officer’s knowledge, that:

(i) the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31, 2014 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: May 5, 2014

 

By:   /s/ PAUL M. BISARO
 

Paul M. Bisaro

President and Chief Executive Officer

 

(Principal Executive Officer)

The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

Exhibit 32.2

Certification of Chief Financial Officer

Pursuant to 18 U.S.C. of Section 1350, as Adopted by

Section 906 of the Sarbanes-Oxley Act of 2002

The undersigned officer of Actavis plc (the “Company”), hereby certifies, to such officer’s knowledge, that:

(i) the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31, 2014 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: May 5, 2014

 

By:   /s/ R. TODD JOYCE
 

R. Todd Joyce

Chief Financial Officer — Global

 

(Principal Financial Officer)

The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.