UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): July 13, 2016 (July 11, 2016)

 

 

ALLERGAN PLC

(Exact Name of Registrant as Specified in Charter)

 

 

 

Ireland   001-36867   98-1114402

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

Clonshaugh Business and Technology Park

Coolock, Dublin, D17 E400, Ireland

(Address of Principal Executive Offices)

(862) 261-7000

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

Allergan plc, a public company limited by shares organized under the laws of Ireland (“ Allergan ”) and Teva Pharmaceutical Industries Ltd., a company organized under the laws of Israel (“ Teva ”) entered into an amendment, dated July 11, 2016 (the “ Third Amendment ”) to the Master Purchase Agreement (the “ Agreement ”), dated as of July 26, 2015, by and between Allergan and Teva. Under the Third Amendment, Teva and Allergan, among other things, agreed to increase the base working capital used for purposes of a working capital adjustment by at least $650 million and in certain circumstances up to $800 million, added Actonel (authorized generic) and Carafate (authorized generic) to the list of excluded products and reduced the cash consideration to be paid by $221 million, provided that the Absence of Change representation will expire at closing, and clarified other matters under the Agreement.

On July 11, 2016, Allergan and Teva also entered into a letter agreement (the “ Outside Date Letter ”) extending the Outside Date (as defined in the Agreement) from July 26, 2016 to October 26, 2016, which date is contemplated by the Agreement.

The foregoing descriptions of the Third Amendment and the Outside Date Letter do not purport to be complete and are qualified in their entirety by reference to the relevant agreements, which are filed as Exhibits 2.3 and 2.4 hereto and are incorporated herein by reference.

Item 8.01 Other Events.

In addition, Allergan and Teva previously entered into an amendment, dated July 5, 2016 (the “ Second Amendment ”) to the Agreement, under which Teva and Allergan, among other things, made certain clarifying changes to certain definitions and amended the requirements regarding the use of Allergan marks by Teva and its affiliates and the Actavis marks by Allergan and its affiliates during a post-closing transition period and an amendment, dated June 9, 2016 (the “ First Amendment ”), under which Teva and Allergan, among other things, made certain clarifying changes to certain definitions and provided that Teva and Allergan would cooperate in complying with certain settlement agreements with the Federal Trade Commission to which Allergan and its affiliates are subject.

The foregoing descriptions of the First Amendment and Second Amendment do not purport to be complete and are qualified in their entirety by reference to the relevant agreements, which are filed as Exhibits 2.1 and 2.2 hereto and are incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

 

  d. Exhibits:

 

2.1    First Amendment to the Master Purchase Agreement, dated as of June 9, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.2    Second Amendment to the Master Purchase Agreement, dated as of July 5, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.3    Third Amendment to the Master Purchase Agreement, dated as of July 11, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.4    Letter Agreement, dated as of July 11, 2016, between Teva Pharmaceutical Industries Ltd. and Allergan plc.


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 hereunto duly authorized.

 

Dated: July 13, 2016     Allergan plc
    By:  

/s/ A. Robert D. Bailey

      A. Robert D. Bailey
      EVP, Chief Legal Officer and Corporate Secretary


EXHIBIT INDEX

 

Exhibit

No.

   Description
2.1    First Amendment to the Master Purchase Agreement, dated as of June 9, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.2    Second Amendment to the Master Purchase Agreement, dated as of July 5, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.3    Third Amendment to the Master Purchase Agreement, dated as of July 11, 2016, by and between Teva Pharmaceutical Industries Ltd. and Allergan plc.
2.4    Letter Agreement, dated as of July 11, 2016, between Teva Pharmaceutical Industries Ltd. and Allergan plc.

Exhibit 2.1

Execution Version

FIRST AMENDMENT TO

MASTER PURCHASE AGREEMENT

This First Amendment (this “ Amendment ”) to the Master Purchase Agreement (the “ Agreement ”) dated as of July 26, 2015, by and between Teva Pharmaceutical Industries Ltd., a company organized under the laws of Israel (“ Buyer Parent ”), and Allergan plc, a public company limited by shares organized under the laws of Ireland (“ Seller Parent ”), is dated as of June 9, 2016.

RECITALS

WHEREAS , Buyer Parent and Seller Parent entered into the Agreement as of July 26, 2015; and

WHEREAS , pursuant to Section 13.6 of the Agreement, Buyer Parent and Seller Parent seek to amend the Agreement as described herein.

NOW, THEREFORE , in consideration of the foregoing and the agreements contained herein, Buyer Parent and Seller Parent hereby agree as follows:

ARTICLE 1. DEFINITIONS; EFFECT OF AMENDMENT

1.1 Definitions . Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.

1.2 Effect of Amendment . The Agreement is amended as set forth in this Amendment. Except as specifically provided for in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. Each reference in the Agreement to “hereof,” “hereunder” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement, as amended by this Amendment. Each reference in the Agreement to the “date of the Agreement” or similar references (such as “to the date hereof”) shall refer to July 26, 2015. The provisions of Article XIII of the Agreement shall apply mutatis mutandis to this Amendment and to the Agreement as modified by this Amendment.

ARTICLE 2. AMENDMENT

2.1 Biologics Business . Section 1.1 of the Agreement is hereby amended by adding the following:

““ Biologics Business ” means the assets, business, Know-How, operations and activities (including related personnel/employees) conducted at any time by Sellers or any of their respective Affiliates in connection with (a) researching, developing, submitting for approval, manufacturing, labeling, distributing, packaging, storing, or transporting any biologic or biosimilar products; and (b) marketing, promoting, using, licensing, selling or offering for sale biologic or biosimilar products. The “Biologics Business” includes, for the avoidance of doubt, Seller Parent’s or its Affiliates’ collaborations and agreements with Amgen, Inc. and Itero Biopharmaceuticals, Inc. relating to biologic or biosimilar products, but excludes products with Reteplase as the active ingredient.”


2.2 Brand Products . Section 1.1 of the Agreement is hereby amended by adding the following:

““ Brand Products ” means each of the products listed in the first column of Schedule 1.1(e) .”

2.3 Transferred Brand Products . Section 1.1 of the Agreement is hereby amended by replacing the definition for “Transferred Brand Products” with the following:

““ Transferred Brand Product ” means each Product which Buyer Parent shall have the right to use, manufacture, have manufactured, offer for sale, sell, and/or distribute at and after Closing in the applicable Transferred Brand Products Territory as identified on Schedule 1.1(e) .”

2.4 Transferred Brand Products Territory . Section 1.1 of the Agreement is hereby amended by adding the following:

““ Transferred Brand Products Territory ” means, on a Brand Product-by-Brand Product basis, the applicable country and/or territory assigned to Buyer Parent on Schedule 1.1(e) with respect to such Transferred Brand Product.”

2.5 Transferred Intellectual Property .

(a) Section 1.1 of the Agreement is hereby amended by deleting the definitions of “Licensed Manufacturing IP” and “Manufacturing IP”.

(b) Section 2.1(b)(vii) of the Agreement is hereby amended and restated as follows:

“(vii) (A) the patents and patent applications owned by Sellers or their Controlled Affiliates which are Related to the Business including those listed on Schedule 2.1(b)(vii) according to owner on the date hereof (the “ Patents ”), (B) the patents in-licensed by Sellers or their Affiliates which are Related to the Business according to licensee on the date hereof (the “ Licensed Patents ”), (C) the internet domain names, trademarks and service marks, and all applications and registrations for the foregoing, owned by Sellers or their Controlled Affiliates and Related to the Business (including the Actavis Marks), together with all common law rights associated with the trademarks and service marks which are the subject of such registrations and applications and the goodwill associated therewith (the “ Marks ”), (D) the trademarks and service marks in-licensed by Sellers or their Controlled Affiliates and Related to the Business according to licensee on the date hereof, together with all common law rights associated with the trademarks and service marks which are the subject of any and all registrations and applications and the goodwill associated therewith (the “ Licensed Marks ”), (E) copyrights in (i) all design history files described in Section 2.1(b)(x) , (ii) the Manufacturing Instructions, (iii) the Technical Information and (iv) all Promotional Activities, (F) trade dress, logos, packaging design,

 

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and slogans, copyrights in both published and unpublished works, including all compilations, in each case, solely if Related to the Business or primarily related to the Products, (G) customized databases and customized computer programs used to operate Equipment, manuals and other documentation and all copyrights and applications thereof, and all derivatives, translations, adaptations and combinations thereof, in each case, if Related to the Business or primarily related to the Acquired Assets, (H) the Know-How Related to the Business, (I) all other Intellectual Property Related to the Business or primarily related to the Acquired Assets, (J) all copies and tangible embodiments thereof of each of the foregoing (in whatever form or medium), and (K) all rights to sue at law or in equity for all Claims or causes of actions arising out of or related to any past, present or future infringement, misappropriation or violation of any of the foregoing, including the right to receive all proceeds and damages therefrom (all of the foregoing in this Section 2.1(b)(vii) , the “ Transferred Intellectual Property ”);”

2.6 Books and Records . Section 9.1(a) is hereby amended and restated as follows:

“(a) Subject to any limitations imposed by Law, including limitations that are required to preserve any applicable attorney-client privilege, after the Closing, as applicable, Buyers and Sellers shall make reasonably available to each other and their respective Affiliates and Representatives (as reasonably requested) and to any taxing authority or any other Governmental Authority, all books and records to the extent relating to the Business, the Acquired Assets and the Assumed Liabilities for all periods prior to the Closing Date and shall use reasonable best efforts to preserve, for at least six (6) years after the Closing Date or, if applicable and later, the expiration of the applicable statutes of limitations or extension thereof: (i) all such books and records, (ii) Tax work papers, Tax information statements, Tax documents and Tax Returns pertaining to the Business, the Acquired Assets or the Products that apply to Claims asserted for Taxes related to the matters addressed in such work papers, information statements, documents and returns and (iii) government Contract information, records or documents, to the extent relating to the Business or the Acquired Assets, for the required retention period (collectively, the “ Section 9.1(a) Information ”); provided, however, that Sellers shall not have any ongoing obligations to make available to Buyers or their Affiliates or Representatives, or to preserve, any Section 9.1(a) Information to the extent that such Section 9.1(a) Information has already been provided to Buyers by or on behalf of Sellers at or after the Closing. Buyers and Sellers shall also make available to each other, during normal business hours when reasonably requested, personnel responsible for preparing or maintaining information, records and documents, in connection with governmental Contracts, each as it relates to the Business, including product Liability and general insurance Liability. Sellers shall have the right to retain copies of all information and documents provided by Sellers to Buyers pursuant to Section 2.1. The right to access provided by this Section 9.1 shall include the right to make copies of accessed documents, provided that (A) all such copies shall be at the sole cost and expense of the requesting Party, and (B) the Party providing access shall have the right to reasonably redact all such documents.”

 

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2.7 Cooperation with FTC Orders . Section 9.16 is hereby added to the Agreement as follows:

Cooperation with FTC Orders .

(a) Buyer Parent acknowledges that Seller Parent and its Affiliates have and may in the future have obligations under FTC decisions and orders or equivalent orders, rulings, agreements with, or requirements of any other relevant Governmental Authority or Regulatory Authority and/or any settlement agreement entered into with the FTC or any other relevant Governmental Authority or Regulatory Authority (“ FTC Order ”), including ongoing obligations under the orders contained in (i) the Agreement Containing Consent Orders entered into with the FTC in connection with the acquisition by Watson Pharmaceuticals, Inc. of Andrx Corp.; (ii) the Agreement Containing Consent Orders entered into with the FTC in connection with the acquisition by Watson Pharmaceuticals, Inc. of Robin Hood Holdings Limited; (iii) the Agreement Containing Consent Orders entered into with the FTC in connection with the acquisition by Watson Pharmaceuticals, Inc. of Actavis Inc.; (iv) the Agreement Containing Consent Orders entered into with the FTC in connection with the combination of Actavis, Inc. and Warner Chilcott plc, including obligations remaining with respect to Norethindrone/Ethinyl Estradiol (generic Femcon FE) and Norethindrone/Ethinyl Estradiol/Ferrous Fumarate (generic Loestrin 24FE); and (v) the Agreement Containing Consent Orders entered into with the FTC in connection with the acquisition by Actavis plc of Forest Laboratories, Inc., including obligations remaining with respect to Lamotrigine and Ursodiol. From and after the Closing, Buyer Parent shall, and shall cause its Controlled Affiliates (including the Transferred Entities) to, cooperate with and assist Seller Parent and its Affiliates in complying with the terms and conditions of FTC Orders, including by (w) performing the obligations of the Transferred Entities as and when they become due in accordance with FTC Orders and any agreements entered in connection therewith, (x) providing such information as Seller Parent or its Affiliates may reasonably request for use in any report delivered to the FTC under FTC Orders, (y) answering the reasonable questions of Seller Parent and (z) providing reasonable assistance, at Seller Parent’s cost, to the extent required to enable Seller Parent and its Affiliates to fulfil their obligations in relation to FTC Orders, provided that such support cannot reasonably be provided by a Non-Business Employee.

(b) From and after the Closing, Seller Parent shall, and shall cause its Controlled Affiliates (including the Retained Entities) to, cooperate with and assist Buyer Parent and its Affiliates in complying with the terms and conditions of FTC Orders, including by (x) providing such information as Buyer Parent or its Affiliates may reasonably request for use in any report delivered to the FTC under FTC Orders, (y) answering the reasonable questions of Buyer Parent and (z) providing reasonable assistance, at Buyer Parent’s cost, to the extent required to enable Buyer Parent and its Affiliates to fulfil their obligations in relation to FTC Orders, provided that such support cannot reasonably be provided by a Business Employee.”

(Signature pages follow)

 

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IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the date first written above.

 

SELLER PARENT

 

ALLERGAN PLC

 

By:  

/s/ A. Robert D. Bailey

Name:   A. Robert D. Bailey
Title:   EVP, Chief Legal Officer & Corporate Secretary

 

(Signature Page to the First Amendment to the Master Purchase Agreement)


BUYER PARENT

 

TEVA PHARMACEUTICAL INDUSTRIES, LTD

 

By:  

/s/ Eyal Desheh

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

/s/ Sigurdur Olafsson

Name:   Sigurdur Olafsson
Title:   President and Chief Executive Officer, Global Generics

(Signature Page to the First Amendment to the Master Purchase Agreement)

Exhibit 2.2

EXECUTION VERSION

SECOND AMENDMENT TO

MASTER PURCHASE AGREEMENT

This Second Amendment (this “ Amendment ”) to the Master Purchase Agreement dated as of July 26, 2015, as amended on June 9, 2016 (the “ Agreement ”), by and between Teva Pharmaceutical Industries Ltd., a company organized under the laws of Israel (“ Buyer Parent ”), and Allergan plc, a public company limited by shares organized under the laws of Ireland (“ Seller Parent ”), is dated as of July 5, 2016.

RECITALS

WHEREAS , Buyer Parent and Seller Parent previously entered into the Agreement; and

WHEREAS , pursuant to Section 13.6 of the Agreement, Buyer Parent and Seller Parent seek to amend the Agreement as described herein.

NOW, THEREFORE , in consideration of the foregoing and the agreements contained herein, Buyer Parent and Seller Parent hereby agree as follows:

ARTICLE 1. DEFINITIONS; EFFECT OF AMENDMENT

1.1 Definitions . Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.

1.2 Effect of Amendment . The Agreement is amended as set forth in this Amendment. Except as specifically provided for in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. Each reference in the Agreement to “hereof,” “hereunder” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement, as amended by this Amendment. Each reference in the Agreement to the “date of the Agreement” or similar references (such as “to the date hereof”) shall refer to July 26, 2015. The provisions of Article XIII of the Agreement shall apply mutatis mutandis to this Amendment and to the Agreement as modified by this Amendment.

ARTICLE 2. AMENDMENT

2.1 International Generics Products . Section 1.1 of the Agreement is hereby amended by replacing the definition of “International Generics Products” with the following:

““ International Generics Products ” means, collectively, any and all pharmaceutical products of Sellers or any of their respective Controlled Affiliates that as of the date hereof and at Closing are sold or intended to be sold outside of the United States as (i) Generic Drugs (including branded generic pharmaceutical products and generic over the counter products) or (ii) authorized generic pharmaceutical products, including all such Generic Drugs and authorized generic pharmaceutical products that (A) are being or have been researched, tested, developed, commercialized, manufactured, sold, promoted or distributed by Sellers or any of their respective Controlled Affiliates outside of the United


States as of the date hereof and at Closing, including those listed on Schedule 1.1(b) , or (B) are owned by, licensed to or otherwise used pursuant to a Contract by the Sellers or any of their respective Controlled Affiliates or introduced into commerce by any of the Sellers or their respective Controlled Affiliates outside of the United States as of the date hereof and at Closing, but excluding, for the avoidance of doubt, all products of the Retained Business.”

2.2 U.S. Generics Products . Section 1.1 of the Agreement is hereby amended by replacing the definition of “U.S. Generics Products” with the following:

““ U.S. Generics Products ” means, collectively, any and all pharmaceutical products of Sellers or any of their respective Controlled Affiliates that as of the date hereof and at Closing are sold or intended to be sold in the United States as (i) Generic Drugs (including branded generic pharmaceutical products and generic over the counter products) or (ii) authorized generic pharmaceutical products, including all such Generic Drugs and authorized generic pharmaceutical products that (A) are being or have been researched, tested, developed, commercialized, manufactured, sold, promoted or distributed by Sellers or any of their respective Controlled Affiliates in the United States as of the date hereof and at Closing, including those listed on Schedule 1.1(g) , or (B) are owned by, licensed to or otherwise used pursuant to a Contract by the Sellers or any of their Controlled Affiliates or introduced into commerce by any of the Sellers or their respective Controlled Affiliates as of the date hereof and at Closing, but excluding, for the avoidance of doubt, all products of the Retained Business.”

2.3 Use of Name . Section 9.9(a) and (b)  of the Agreement is hereby amended and restated as follows:

“(a) Effective as of the Closing, none of the Transferred Group shall hold itself out as continuing to be owned by Allergan. Notwithstanding the above:

(i) Seller Parent hereby grants to Buyer Parent, effective as of the Closing, a non-exclusive, worldwide and royalty-free license to use, including in any corporate or business names, the Allergan Marks (as defined below) for a period of two (2) years after the Closing Date (the “ Allergan Marks Transition Period ”), in connection with the Business, including product labelling and marketing and promotional materials in a manner generally consistent with the use of the Allergan Marks prior to the Closing Date to facilitate the transition by Buyer Parent to new names and marks. During or before the end of the Allergan Marks Transition Period, Buyer Parent and its Affiliates shall change or remove external or internal signage using any of the Allergan Marks, remove the Allergan Marks from any corporate or business names, transition any Internet sites to domain names not including any Allergan Marks and relabel, sell, destroy or otherwise dispose of (subject to the terms of this Agreement) any materials or inventory bearing any of the Allergan Marks (the “ Allergan Marks Transition Activities ”). Notwithstanding the foregoing, for a period of up to eighteen (18) months after the expiration of the Allergan Marks Transition Period (the “ Allergan Marks Wind Down Period ”), Buyer Parent shall be permitted to sell inventory bearing Allergan Marks manufactured prior to the Allergan Wind Down Period provided, for clarity, that such activities shall only be for

 

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wind-down purposes. With immediate effect upon the expiration of the Allergan Marks Wind Down Period, Buyer Parent will, and will cause its Affiliates to, cease all such wind-down use of the Allergan Marks, but will retain the right to use the terminated Allergan Marks, as applicable, after the expiration of the Allergan Marks Wind Down Period solely for record keeping or administrative purposes or as may be otherwise required by law or regulation, including the retention and use of historical or archived documents (including customer contracts and promotional materials) containing or referencing the Allergan Marks, as applicable (and not for any marketing or promotional purposes). Notwithstanding the foregoing, in no event will Buyer Parent or its Affiliates register any trademark (including any Internet domain name) containing or confusingly similar to any Allergan Marks.

(ii) Except as expressly provided herein, effective as of the Closing, Buyer Parent hereby covenants and agrees, on behalf of itself and its Affiliates, that it and its Affiliates shall not use, license, sublicense, or otherwise permit any Person to use, any trade or service marks, trade or service names or logos including the word “Warner Chilcott,” “Aptalis,” “Forest” or “Forest Labs” (collectively, the “ Allergan Marks ”) in connection with the Products. For the avoidance of doubt, Allergan Marks are Excluded Assets.

(b) (i) Buyer Parent hereby grants to Seller Parent effective as of the Closing, a non-exclusive, worldwide and royalty-free license to use, including in any corporate or business names, the Actavis Marks (as defined below) for a period of two (2) years after the Closing Date (the “ Actavis Marks Transition Period ”), in connection with the Retained Business, including product labelling and marketing and promotional materials in a manner generally consistent with the use of the Actavis Marks prior to the Closing Date to facilitate the transition by Seller Parent to new names and marks. During or before the end of the Actavis Marks Transition Period, Seller Parent and its Affiliates shall change or remove external or internal signage using any of the Actavis Marks, remove the Actavis Marks from any business names, transition any Internet sites to domain names not including any Actavis Marks and relabel, sell, destroy or otherwise dispose of (subject to the terms of this Agreement) any materials or inventory bearing any of the Actavis Marks during the Actavis Marks Transition Period (the “ Actavis Marks Transition Activities ”). Notwithstanding the foregoing, for a period of up to eighteen (18) months after the expiration of the Actavis Marks Transition Period (the “ Actavis Marks Wind Down Period ”), Seller Parent shall be permitted to sell inventory bearing Actavis Marks manufactured prior to the Actavis Wind Down Period provided, for clarity, that such activities shall only be for wind-down purposes. With immediate effect upon the expiration of the Actavis Marks Wind Down Period, Seller Parent will, and will cause its Affiliates to, cease all such wind-down use of the Actavis Marks, but will retain the right to use the terminated Actavis Marks, as applicable, after the expiration of the Actavis Marks Wind Down Period solely for record keeping or administrative purposes or as may be otherwise required by law or regulation, including the retention and use of historical or archived documents (including customer contracts and promotional materials) containing or referencing the Actavis Marks, as applicable (and not for any marketing or promotional purposes). Notwithstanding the foregoing, in no event will Seller Parent or its Affiliates register any trademark (including any Internet domain name) containing or confusingly similar to any Actavis Marks.

 

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(ii) Except as expressly provided herein, effective as of the Closing, Seller Parent hereby covenants and agrees, on behalf of itself and its Affiliates, that it and its Affiliates shall cease to use, license, sublicense or otherwise permit any Person to use any trade or service marks, trade or service names or logos including the word “Actavis” (collectively, the “ Actavis Marks ”). For the avoidance of doubt, Actavis Marks are and shall be deemed to be Marks within the meaning of Section 2.1(b)(vii), and are not Excluded Assets.”

(Signature page follows)

 

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IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the date first written above.

 

SELLER PARENT

 

ALLERGAN PLC

 

By:  

/s/ A. Robert D. Bailey

Name:   A. Robert D. Bailey
Title:   EVP, Chief Legal Officer and Corporate Secretary

 

BUYER PARENT

 

TEVA PHARMACEUTICAL INDUSTRIES, LTD

 

By:  

/s/ Eyal Desheh

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

/s/ Richard Daniell

Name:   Richard Daniell
Title:   Senior Vice President, Chief Integration Officer

(Signature Page to the Second Amendment to the Master Purchase Agreement)

Exhibit 2.3

EXECUTION VERSION

THIRD AMENDMENT TO

MASTER PURCHASE AGREEMENT

This Third Amendment (this “ Amendment ”) to the Master Purchase Agreement dated as of July 26, 2015, as amended on June 9, 2016 and July 5, 2016 (the “ Agreement ”), by and between Teva Pharmaceutical Industries Ltd., a company organized under the laws of Israel (“ Buyer Parent ”), and Allergan plc, a public company limited by shares organized under the laws of Ireland (“ Seller Parent ”), is dated as of July 11, 2016.

RECITALS

WHEREAS , Buyer Parent and Seller Parent previously entered into the Agreement; and

WHEREAS , pursuant to Section 13.6 of the Agreement, Buyer Parent and Seller Parent seek to amend the Agreement as described herein.

NOW, THEREFORE , in consideration of the foregoing and the agreements contained herein, Buyer Parent and Seller Parent hereby agree as follows:

ARTICLE 1.DEFINITIONS; EFFECT OF AMENDMENT

1.1 Definitions . Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.

1.2 Effect of Amendment . The Agreement is amended as set forth in this Amendment. Except as specifically provided for in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. Each reference in the Agreement to “hereof,” “hereunder” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement, as amended by this Amendment. Each reference in the Agreement to the “date of the Agreement” or similar references (such as “to the date hereof”) shall refer to July 26, 2015. The provisions of Article XIII of the Agreement shall apply mutatis mutandis to this Amendment and to the Agreement as modified by this Amendment.

ARTICLE 2.AMENDMENT

2.1 Base Working Capital Amount . Section 1.1 of the Agreement is hereby amended by replacing the definition of “Base Working Capital Amount” with the following:

“Base Working Capital Amount ” means the average of the December 2014 Working Capital Amount and the September 2015 Working Capital Amount (the “ Reference Working Capital ”), plus $650,000,000, plus, if applicable:

(1) the amount by which the Closing Date Working Capital exceeds the difference of (a) the Reference Working Capital minus (b) $100,000,000, if the positive or negative difference between the Closing Date Working Capital and the Reference Working Capital is $100,000,000 or less; or


(2) $200,000,000, if the Closing Date Working Capital exceeds the Reference Working Capital by more than $100,000,000 but less than $750,000,000; or

(3) $200,000,000 minus the amount by which the Closing Date Working Capital exceeds the Reference Working Capital by more than $750,000,000 if the amount by which the Closing Date Working Capital exceeds the Reference Working Capital is equal to or greater than $750,000,000 but less than $800,000,000; or

(4) $150,000,000, if the Closing Date Working Capital exceeds the Reference Working Capital by $800,000,000 or more.”

2.2 Intercompany Arrangements . Section 6.7 of the Agreement is hereby amended and restated as follows:

Intercompany Arrangements . Immediately prior to the Closing, Seller Parent shall, and shall cause its Controlled Affiliates to: (i) terminate all agreements or arrangements, written or unwritten, of any kind (other than any Ancillary Agreements), exclusively between one or more Sellers or Retained Entities, on the one hand, and one or more entities in the Transferred Group, on the other hand, and (ii) settle or otherwise extinguish any amounts (other than any amounts under any Ancillary Agreements) owed to or by one or more Sellers or Retained Entities, on the one hand, and one or more entities in the Transferred Group, on the other hand; provided, however , this Section 6.7 shall not apply to any such agreement or arrangement (or amendment thereto) if any of the original parties to such agreement or arrangement (or amendment thereto) were not Affiliates of all other parties to such agreement or arrangement (or amendment thereto) at the time such agreement or arrangement (or amendment thereto) was entered into (such agreements or arrangements to which this Section 6.7 do not apply, the “ Surviving Intercompany Agreements ”); provided further, that with respect to each Surviving Intercompany Agreement: (a) all accrued and future payment obligations thereunder owed to or by any Retained Entity, on the one hand, and any entity in the Transferred Group, on the other hand, other than payment obligations for the supply of authorized generics and/or payments due for services or activities under co-promote agreements, shall be deemed fully paid at Closing and no party thereto or any of its Affiliates shall be liable to any other party thereto or any of its Affiliates for any such payment obligations, (b) no party thereto or any of its Affiliates shall be liable to any other party thereto or any of its Affiliates for any breach thereof that has occurred on or prior to Closing, (c) no obligation contained therein shall restrict the rights of Buyer Parent or any of its Affiliates existing immediately prior to Closing with respect to current or future products of Buyer Parent or any such Affiliates other than the Products that are the subject of the applicable Surviving Intercompany Agreements and (d) no obligation contained therein shall restrict the right of Buyer Parent or its Affiliates (other than a member of the Transferred Group) to bring any Claim, other than a Claim under a Surviving Intercompany Agreement, against any Retained Entity, its Affiliates, or any third party to the extent that it had the right to bring such a Claim prior to the Closing.”

2.3 Excluded Assets . Seller Parent and Buyer Parent acknowledge that the following products shall be Excluded Assets: Actonel (authorized generic) and Carafate (authorized generic). In full consideration of these products being Excluded Assets, the Cash Consideration shall be reduced by $221,000,000.

 

2


2.4 Representations and Warranties . Section 12.1(a) of the Agreement is hereby amended to add the following sentence:

“Notwithstanding anything to the contrary herein, the representation and warranty contained in Section 4.9(a) [Absence of Certain Changes or Events] will expire at Closing.”

2.5 Other Products . The Parties hereby agree that Liabilities primarily related to Androgel shall be deemed Assumed Liabilities under the Agreement. The Parties hereby agree that the Product Norco ® shall be deemed an Excluded Asset under the Agreement.

2.6 Cost of Assignment of IT Contracts . Notwithstanding anything to the contrary in the Agreement, to the extent that the transfer of any Contracts related to IT Assets to any member of the Transferred Group or the transfer of any right, benefit or obligation thereunder (the “ IT Contracts ”) requires payment of additional fees, costs or expenses as a result of such transfer to third parties, such fees, costs and expenses shall be borne by Buyer Parent. If any IT Contract is a Shared Business Contract, the costs or expenses paid or payable to any non-adviser third party in connection with entering into a new Contract or Contract(s) shall be borne by Buyer Parent.

(Signature page follows)

 

3


IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the date first written above.

 

SELLER PARENT
ALLERGAN PLC
By:  

/s/ A. Robert D. Bailey

Name:   A. Robert D. Bailey
Title:  

EVP, Chief Legal Officer and Corporate

Secretary

BUYER PARENT
TEVA PHARMACEUTICAL INDUSTRIES, LTD
By:  

/s/ Eyal Desheh

Name:   Eyal Desheh
Title:  

Group Executive Vice President and Chief

Financial Officer

By:  

/s/ David M. Stark

Name:   David M. Stark
Title:  

Deputy Chief Legal Officer, Senior Vice

President and Global Markets General

Counsel

(Signature Page to the Third Amendment to the Master Purchase Agreement)

Exhibit 2.4

EXECUTION VERSION

[ALLERGAN LETTERHEAD]

Teva Pharmaceutical Industries Ltd.

5 Basel Street

Petach Tikva 4951033

Israel

Attention:  Richard S. Egosi,

 Chief Legal Officer

 

  Re. Extension of Outside Date

Dear Mr. Egosi:

1. Reference is made to the Master Purchase Agreement dated as of July 26, 2015 by and between Allergan plc (“ Allergan ”) and Teva Pharmaceutical Industries Ltd. (“ Teva ”), as amended from time to time (the “ Agreement ”). Capitalized terms used in this letter agreement (this “ Letter ”) and not defined herein are used with the meaning so defined in the Agreement.

2. Pursuant to Section 11.1(b) of the Agreement, either Party may extend the Outside Date to October 26, 2016 by delivering notice to the other Party within three business days immediately prior to July 26, 2016 if the conditions set forth in Section 10.1(b) have not been satisfied or waived but all other conditions to the Closing have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing). The Parties hereby agree (1) to waive the notice requirement in Section 11.1(b) of the Agreement, (2) to extend the Outside Date to October 26, 2016 effective immediately, and (3) neither Party has waived any other condition to extending the Outside Date set forth in Section 11.1(b) of the Agreement.

3. Allergan and Teva may execute this Letter in one or more counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to constitute one and the same agreement. Any signature page hereto delivered by facsimile machine or by e-mail (including in portable document format (pdf), as a joint photographic experts group (jpg) file, or otherwise) shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto and may be used in lieu of the original signatures for all purposes. Any party that delivers such a signature page agrees to later deliver an original counterpart to any party that requests it.

4. The provisions of Sections 13.9, 13.10 and 13.16 of the Agreement shall apply mutatis mutandis to this Letter.

(Signature page follows)


SELLER PARENT
ALLERGAN PLC
By:  

/s/ A. Robert D. Bailey

Name:   A. Robert D. Bailey
Title:  

EVP, Chief Legal Officer and Corporate

Secretary

 

Acknowledged and accepted:
BUYER PARENT
TEVA PHARMACEUTICAL INDUSTRIES LTD
By:  

/s/ Eyal Desheh

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

David M. Stark

Name:   David M. Stark
Title:   Deputy Chief Legal Officer, Senior Vice President and Global Markets General Counsel

 

Cc: Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Attn: Joseph B. Frumkin

Eric M. Krautheimer

Krishna Veeraraghavan

Facsimile: (212) 558-3588

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022-4834

Attn: Charles K. Ruck

R. Scott Shean

Facsimile: +1 (212) 751-4864

[Signature page to outside date extension side letter]