ASSET PURCHASE AGREEMENT

Exhibit 2.1

EXECUTION COPY

ASSET PURCHASE AGREEMENT

dated as of

September 23, 2009

among

LEO PHARMA A/S,

LEO LABORATORIES LTD.,

WARNER CHILCOTT PLC,

WARNER CHILCOTT COMPANY, LLC

and

WARNER CHILCOTT (US), LLC

TABLE OF CONTENTS

 

 

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*	Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Warner Chilcott agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule upon request.

 

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ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT (this “ Agreement ”) dated as of September 23, 2009, among LEO PHARMA A/S, an Aktieselskab organized under the laws of Denmark (“ Buyer Parent ”), LEO LABORATORIES LTD., a limited liability company formed under the laws of Ireland (“ Irish Buyer ”; and, together with Buyer Parent, the “ Buyers ”), WARNER CHILCOTT PLC, an Irish public limited company (“ Seller Parent ”), WARNER CHILCOTT COMPANY, LLC, a Puerto Rican limited liability company and an indirect wholly-owned subsidiary of Seller Parent (“ WCCL ”), and WARNER CHILCOTT (US), LLC, a Delaware limited liability company and an indirect wholly-owned subsidiary of Seller Parent (“ WC US ”; and, together with Seller Parent and WCCL, each a “ Seller ” and collectively the “ Sellers ”).

W I T N E S S E T H :

WHEREAS, Sellers are in the business (the “ Business ”) of (i) selling, marketing and distributing the Products (as hereinafter defined) in the United States, its possessions and territories (the “ Territory ”) and (ii) engaging in certain ancillary activities related to selling, marketing and distributing the Products, including, the secondary packaging of certain Products and regulatory compliance matters (but excluding, for the avoidance of doubt, manufacturing);

WHEREAS, WCCL (as successor in interest to Galen (Chemicals) Limited) and Buyer Parent are parties to (i) a Master Agreement dated April 1, 2003, as amended pursuant to Addendum I, dated September 14, 2005, among WCCL, Buyer Parent and Warner Chilcott Holdings Company III, Limited (as amended or otherwise modified prior to the date hereof, the “ Master Agreement ”) relating to the licensing, development, supply and marketing of the Products in the Territory; and (ii) a Development Agreement dated April 1, 2003, as amended pursuant to Addendum I, dated September 14, 2005, between WCCL and Buyer Parent (as amended or otherwise modified prior to the date hereof, the “ Development Agreement ”) relating to the development of the Products;

WHEREAS, pursuant to the Master Agreement, WCCL and Buyer Parent have entered into (i) a License, Supply and Development Agreement dated September 14, 2005 relating to the licensing, development, supply, marketing and sale of Taclonex (a/k/a Dovobet) products in the Territory (as amended or otherwise modified prior to the date hereof, the “ Taclonex Agreement ”); (ii) an Amended and Restated License and Supply Agreement dated September 14, 2005 relating to the licensing, supply, marketing and sale of Dovonex products in the Territory (as amended or otherwise modified prior to the date hereof, the “ Dovonex Agreement ”); (iii) a Right of First Refusal Agreement dated September 14, 2005 (as amended or otherwise modified prior to the date hereof, the “ ROFR Agreement ”); (iv) an Amended and Restated Cooperation Agreement dated September 14, 2005 (as amended or otherwise modified prior to the date hereof, the “ Cooperation Agreement ”); (v) a Pharmacovigilance

Procedures Agreement dated March 7, 2008 (as amended or otherwise modified prior to the date hereof, the “ Taclonex Pharmacovigilance Agreement ”) relating to Taclonex (a/k/a Dovobet) products; and (vi) a Pharmacovigilance Procedures Agreement dated March 7, 2008 relating to Dovonex products (as amended or otherwise modified prior to the date hereof, the “ Dovonex Pharmacovigilance Agreement ”); (vii) that certain Option Agreement with respect to TD1414 dated January 21, 2006 (as amended pursuant to a letter agreement dated July 16, 2009, the “ TD1414 Option Agreement ”) and (viii) the other Contracts (as hereinafter defined) listed in Annex I(such Contracts, together with the TD1414 Option Agreement, the Dovonex Pharmacovigilance Agreement, the Taclonex Pharmacovigilance Agreement, the Corporation Agreement, the ROFR Agreement, the Taclonex Agreement, the Dovonex Agreement, the Development Agreement and the Master Agreement, collectively, the “ Existing Agreements ”);

WHEREAS, WCCL and Buyer Parent desire that each shall reacquire their rights under and therefore terminate each of the Existing Agreements in accordance with Section 2.08 and upon the terms and subject to the conditions hereinafter set forth; and

WHEREAS, Buyers desire to purchase the Purchased Assets (as hereinafter defined) from Sellers, and Sellers desire to sell, and Seller Parent desires to cause the Selling Subsidiaries to sell, the Purchased Assets to Buyers, upon the terms and subject to the conditions hereinafter set forth;

The parties hereto agree as follows:

ARTICLE 1

D EFINITIONS

Section 1.01. Definitions. (a) As used herein, the following terms have the following meanings:

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person.

“ Ancillary Agreements ” means (i) the Assignment and Assumption Agreement, (ii) the Transition Services Agreement, (iii) the Distribution Agreement and (iv) the IP Assignment and Assumption Agreement.

“ Applicable Law ” means, with respect to any Person, any federal, state or local law (statutory, common or otherwise), rule, regulation, order, injunction, judgment, decree or ruling enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.

 

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“ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.

“ Closing Date ” means the date of this Agreement.

“ Contracts ” means any written agreement, contract, license, lease, commitment, arrangement or understanding, including any invoice, sales order or purchase order.

“ Damages ” means any and all liabilities, losses, damages and expenses, including reasonable fees and expenses of counsel and other reasonable expenses of investigation and litigation.

“ Effective Time ” means 12:01 a.m. Eastern United States time on the Closing Date; provided that, with respect to Inventory, the Effective Time shall not occur until the earliest time on the Closing Date when the Inventory is located in international waters or if located in the United States in the State of Delaware.

“ Environmental Laws ” means any Applicable Law relating to the environment, the effect of the environment on health and safety, or pollutants, contaminants, wastes or chemicals or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substances, wastes or materials.

“ Environmental Liabilities ” means any and all liabilities, obligations or commitments of Sellers and their respective Subsidiaries arising in connection with or in any way relating to the Purchased Assets, the Business or the Products which arise under or relate to any Environmental Law, in each case, to the extent relating to or arising out of actions, conditions or events existing or occurring prior to the Effective Time.

“ FDA Act ” means the Food, Drug and Cosmetics Act of 1938.

“ Firm Ordered Inventory ” means Product Inventory that (as of the date of this Agreement) has been ordered by a Seller pursuant to the Existing Agreements but not yet been paid for.

“ GAAP ” means generally accepted accounting principles in the United States, consistently applied.

“ Governmental Authority ” means any transnational, domestic or foreign federal, state or local, governmental or regulatory authority, department, court, agency or official, including any political subdivision thereof.

“ Intellectual Property Rights ” means all: (i) trademarks, service marks, logos, trade dress, slogans, and trade names and all applications and registrations for any of the foregoing, in any jurisdiction, and all goodwill associated therewith;

 

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(ii) domain names; (iii) patents (including utility and design patents), patent applications, patent disclosures and all related extensions, continuations, continuations-in-part, divisions, reissues, and reexaminations, utility models, and certificates of invention; (iv) trade secrets, confidential information, proprietary information, inventions, know-how, rights in research and development, financial, marketing and business data, pricing and cost information, business and marketing plans, technical data, designs, drawings, specifications, databases and customer and supplier lists and information; (v) copyrights and all registrations and applications therefor, together with all renewals and extensions therefor, works of authorship, rights in product packaging and design and database rights; and (vi) computer programs and proprietary software, whether in source code or object code.

“ knowledge of Sellers ”, “ Sellers’ knowledge ” or any other similar knowledge qualification in this Agreement means to the actual knowledge of the individuals specified in Schedule 1.01(a).

“ Lien ” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, or encumbrance of any kind in respect of such property or asset.

“ NDA ” means a New Drug Application as defined under the FDA Act.

“ Permitted Liens ” means (i) Liens for taxes, assessments and similar charges that are not yet due or are being contested in good faith; (ii) carrier’s and other similar Liens arising or incurred in the ordinary course of business or that are not yet due and payable or are being contested in good faith; and (iii) Liens under Seller Parent’s existing credit facility that will be released in connection with the Closing.

“ Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

“ Pipeline Products ” means LEO 80185 (body), LEO 80190, LEO 22811, LEO 29102, TD 1414 and the new product described in Exhibit A to that certain letter agreement between WCCL and Buyer Parent dated May 7, 2009.

“ Pre-Closing Tax Period ” means (i) any Tax period ending on or before the Closing Date and (ii) with respect to a Tax period that commences before but ends after the Closing Date, the portion of such period up to and including the Closing Date, as determined pursuant to Section 6.02(b).

“ Products ” means (i) any pharmaceutical formulation containing calcipotriol (calcipotriene) as the only active pharmaceutical ingredient (including Dovonex ointment, cream and scalp solution) and any other such formulations in

 

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any form, including a gel, foam, spray, mousse or liquid, whether such formulation has been developed, is being developed or may be developed in the future, (ii) any pharmaceutical formulation containing calcipotriol (calcipotriene) and steroid, including Taclonex ointment, Taclonex scalp topical suspension, and any other such formulations in any form, including an ointment, cream, gel, solution, foam, spray, mousse or liquid, whether such formulation has been developed, is being developed or may be developed in the future and (iii) to the extent not covered by the foregoing clauses (i) and (ii), the Pipeline Products.

“ Seller Disclosure Letter ” means the disclosure letter delivered by Sellers to Buyers in connection with the execution and delivery of this Agreement and attached hereto.

“ Selling Subsidiaries ” means WCCL and WC US together, and “ Selling Subsidiary ” means any one of them.

“ Subsidiary ” means, with respect to any Person, any entity of which (i) securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions; or (ii) 50% or more of the equity interests are at the time directly or indirectly owned by such Person.

“ Tax ” or “ Taxes ” means any and all federal, state, local, or foreign net or gross income, gross receipts, net proceeds, sales, use, escheat, unclaimed property, ad valorem, value added, franchise, bank shares, withholding, payroll, employment, excise, property, deed, stamp, alternative or add-on minimum, environmental, profits, windfall profits, transaction, license, lease, service, service use, occupation, severance, energy, unemployment, social security, workers’ compensation, capital, premium, abandoned or unclaimed property and other taxes, assessments, customs, duties, fees, levies, or other governmental charges of any nature whatever imposed by a Governmental Authority (a “ Taxing Authority ”), whether disputed or not, together with any interest, penalties, additions to tax, or additional amounts with respect thereto, and including any liability for the payment of the foregoing obligations of another Person as a result of (i) being or having been a member of an affiliated, consolidated, combined, unitary or aggregate group of corporations; (ii) being or having been a party to any tax sharing agreement or any express or implied obligation to indemnify any Person; and (iii) being or having been a transferee, successor, or otherwise assuming the obligations of another Person to pay the foregoing amounts.

(b) Each of the following terms is defined in the Section set forth opposite such term:

 

 

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Section 1.02. Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meanings set forth in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Laws.

ARTICLE 2

P URCHASE AND S ALE ; T ERMINATION OF E XISTING A GREEMENTS

Section 2.01. Purchase and Sale . Upon the terms and subject to the conditions of this Agreement, Buyers agree to purchase from Sellers (in accordance with Section 2.10), and Sellers agree to, and Seller Parent agrees to cause the Selling Subsidiaries and, solely for the purposes of the assets set forth in Section 2.01(a), Warner Chilcott UK Limited (“ WC UK ”), to sell, convey,

 

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transfer, assign and deliver to Buyers (in accordance with Section 2.10) at the Closing, free and clear of all Liens, other than Permitted Liens, all of Sellers’ right, title and interest in, to and under the following assets, as the same shall exist on the Closing Date (collectively, the “ Purchased Assets ”):

(a) all Intellectual Property Rights which are owned or held as custodian by a Seller or WC UK and are listed in Schedule 2.01(a) (the “ Transferred Domain Names ”) ;

(b) any Product inventory (excluding samples), and labels, packaging and other similar supplies related thereto (except to the extent that such labels, packaging and other similar supplies constitute Marketing Materials), that is held by a Seller (the “ Inventory ”);

(c) copies of all regulatory files (including all correspondence and communications with Governmental Authorities), reports (including FDA Act inspection reports), and all supplements and amendments thereto, in each case, to and from any applicable Governmental Authority to the extent primarily related to the Purchased Assets, the Business or the Products; provided that Sellers may deliver the materials referred to in this Section 2.01(c) with reasonable redactions thereon of all references to and information regarding items other than the Products, the Business and the Purchased Assets so long as such redactions do not materially affect the meaning, content and context of such materials;

(d) all of the Contracts set forth in Schedule 2.01(d) (the “ Assumed Contracts ”);

(e) to the extent primarily related to the Purchased Assets, the Business or the Products, all marketing materials (other than the Marketing Materials), customer and sales information (including customer and supplier lists), product literature, training materials, artwork relating to product packaging, designs, market research, customer surveys, target demographic analyses and consultants’ reports in whatever medium ( e.g. , audio, visual, print), in each case, including representative samples of each prior version of such advertising, marketing and promotional materials, and other product information that has been used during the term of the Existing Agreements, in the possession of a Seller;

(f) to the extent primarily related to the Products, all research data, safety information, information related to all clinical studies (including all clinical information on the clinical study referred to as protocol # 03105-2 regarding Dovobet ^® Ointment – Dovonex ^® ointment, which includes the protocol, clinical study report, CRFs, line-listings, clinical databases, safety databases, trial master files and correspondence with Governmental Authorities and any other Person, in each case primarily relating to such clinical study);

 

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(g) all other books, records, files and papers, including doctors’ calls’ histories in a Seller’s possession, whether in hard copy or computer format, to the extent primarily related to the Purchased Assets, the Business or the Products; and

(h) all claims, counterclaims, credits, causes of action, choses in action, rights of recovery and rights of set-off and third party warranties, guarantees and similar contractual rights as to third parties to the extent primarily related to the Purchased Assets.

Section 2.02. Excluded Assets . The Buyers expressly understand and agree that all assets, properties and rights of Sellers and any of their respective Affiliates other than the Purchased Assets (the “ Excluded Assets ”) are not being acquired by the Buyers. For the avoidance of doubt, the Excluded Assets shall include:

(a) any real estate owned or leased by a Seller or any of its Affiliates;

(b) except for the Inventory conveyed pursuant to Section 2.01(b), any inventory owned or held by a Seller or any of its Affiliates, including raw materials, goods in process, finished goods, packaging supplies and labels;

(c) any manufacturing equipment used or held for use by a Seller or any of its Affiliates;

(d) except for packaging materials conveyed pursuant to Section 2.01(b), any packaging assets used or held for use by a Seller or any of its Affiliates;

(e) all cash and cash equivalents on hand and in banks;

(f) all accounts receivable, notes receivable and other indebtedness due and owed by any third party to a Seller or any of its Affiliates arising out of or held in connection with the Purchased Assets or the Business;

(g) insurance policies relating to the Purchased Assets or the Business and all claims, credits, causes of action or rights thereunder;

(h) all trademarks and tradenames owned by or licensed to a Seller or its Affiliates (the “ Seller Marks ”); provided , however , that in no event shall the Seller Marks include (i) the trademarks and tradenames

 

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licensed to any Seller pursuant to the Existing Agreements or (ii) any other trademarks and tradenames owned by Buyer or any of its Affiliates (all of the foregoing in clauses (i) and (ii), the “ Buyer Marks ”);

(i) (i) all books, records, files and papers, whether in hard copy or computer format, prepared in connection with this Agreement and the Ancillary Agreements or the transactions contemplated hereby or thereby and (ii) all minute books and corporate records of Sellers and their respective Affiliates;

(j) all promotional, advertising and display materials (collectively, “ Marketing Materials ”); and

(k) all rights of Sellers arising under this Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby.

Section 2.03. Assumed Liabilities . Upon the terms and subject to the conditions of this Agreement, Buyers (in accordance with Section 2.10) agree, effective as of the Effective Time, to assume only the following liabilities and obligations of Sellers and their respective Affiliates (the “ Assumed Liabilities ”):

(a) all liabilities and obligations in respect of any product liability, breach of warranty or similar claim for injury to person or property related to Products sold after the Effective Time (including any action, suit, investigation or proceeding relating to any such liabilities or obligations) except, with respect to the Inventory sold after the Effective Time, for any such liabilities or obligations arising or occurring from actions taken (or failed to be taken) by the Sellers or their Affiliates prior to the Effective Time;

(b) all liabilities and obligations relating to the return of any Products after the Effective Time, except for any Seller Returns and as provided in the proviso to Section 2.04(b);

(c) all liabilities and obligations for rebates, discounts, chargebacks and other offsets to the price charged for the Products occurring after the Effective Time, except to the extent provided in Section 2.04(c)(ii);

(d) all liabilities and obligations arising under the Assumed Contracts to the extent such obligations (i) arise out of actions or events arising or occurring after the Closing Date; and (ii) such obligations do not arise out of any breach or default (with or without the giving of notice or the lapse of time or both) by any of the Sellers or their respective Affiliates prior to the Closing Date; and

 

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(e) all liabilities and obligations arising out of any action, suit, investigation or proceeding to the extent relating to or arising out of actions or events arising or occurring after the Effective Time relating to the Products, the Business or the Purchased Assets; and

(f) all other liabilities, obligations and commitments of whatever kind and nature, whether primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not accrued, arising out of or relating directly or indirectly to the Purchased Assets, the Business or the Products, but only to the extent related to any period on or after the Effective Time.

Section 2.04. Excluded Liabilities . Notwithstanding any provision in this Agreement to the contrary, the Buyers are assuming only the Assumed Liabilities and are not assuming any other liability or obligation of any Seller or its Affiliates of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of such Seller or its Affiliates (all such liabilities and obligations not being assumed being herein referred to as the “ Excluded Liabilities ”). Without limiting the generality of the foregoing, the Excluded Liabilities shall include:

(a) all liabilities and obligations in respect of any product liability, breach of warranty or similar claims for injury to person or property related to Products sold prior to the Effective Time (including any action, suit, investigation or proceeding relating to any such liabilities or obligations);

(b) all liabilities and obligations relating to (i) the return of any Products before the Effective Time and (ii) the return of any Products after the Effective Time that were shipped by a Seller or its Affiliates to a third party prior to the Closing Date which are either (A) expired on the date of such return, (B) have an expiration date that is less than 12 months after the date of such return or (C) at the time of such return are not in a condition that can be resold by the Buyers (other than as a result of actions or omissions by Buyers or their respective Affiliates) (collectively, the “ Seller Returns ”); provided that in the event that Sellers deliver Inventory to Buyers from lots that include Inventory that was sold by Sellers prior to the Effective Time, Sellers shall be responsible for a percentage of the credit liability associated with returns of Inventory included in such lot equal to the percentage of the Inventory included in such lot that was sold prior to the Effective Time, and Buyers shall be responsible for the remaining credit liability associated with returns of Inventory included in such lot;

(c) (i) all liabilities and obligations for rebates, discounts, chargebacks and other offsets to the price charged for the Products

 

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occurring before the Effective Time and (ii) all liabilities and obligations for rebates, chargebacks and other offsets to the price charged for the Products (but excluding, for the avoidance of doubt, cash discounts and wholesaler fees) occurring during the six-month period after the Effective Time;

(d) all liabilities and obligations arising under the Assumed Contracts to the extent such obligations (i) arise out of actions or events arising or occurring prior to the Closing Date or (ii) such obligations arise out of a breach or default (with or without the giving of notice or the lapse of time or both) by any of the Sellers or their respective Affiliates prior to the Closing Date;

(e) all liabilities and obligations arising out of any action, suit, investigation or proceeding to the extent relating to or arising out of actions or events arising or occurring prior the Effective Time relating to the Products, the Business or the Purchased Assets;

(f) all liabilities and obligations of a Seller or any of their respective Affiliates for Taxes and Taxes related to the Purchased Assets for any Pre-Closing Tax Period; provided that Transfer Taxes incurred in connection with the transactions contemplated by this Agreement and Apportioned Obligations shall be paid in the manner set forth in Section 6.02 hereof;

(g) all liabilities and obligations under a Seller’s employee benefits or compensation arrangements;

(h) all current liabilities of Sellers and their respective Affiliates (including any current liabilities arising prior to the Effective Time relating to the Purchased Assets, the Business or the Products);

(i) all Environmental Liabilities;

(j) all liabilities and obligations of any Seller to any Affiliate of such Seller (regardless of whether such liability or obligation is related to the Business, the Purchased Assets or the Products);

(k) all liabilities arising under Permitted Liens on any Purchased Asset as of the Closing that are not released at Closing;

(l) all liabilities and obligations relating to an Excluded Asset; and

(m) all other liabilities, obligations and commitments of whatever kind and nature, whether primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not

 

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accrued, arising out of or relating directly or indirectly to the Purchased Assets, the Business or the Products, but only to the extent related to any period prior to the Effective Time).

Notwithstanding anything to the contrary in this Agreement or otherwise, to the extent that any liabilities or obligations are or would have been liabilities or obligations or otherwise the responsibility of Buyer Parent or any of its Affiliates under the Existing Agreements (assuming for this purpose that the Existing Agreements had remained in full force and effect and that Section 2.08 has been disregarded), such liabilities or obligations shall be deemed not to be Excluded Liabilities and shall be deemed to be Assumed Liabilities under this Agreement.

Section 2.05. Assignment of Contracts and Rights . Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Purchased Asset or any right thereunder if an attempted assignment, without the consent of a third party, would constitute a breach or in any way adversely affect the rights of Buyer or Sellers thereunder.

Section 2.06. Purchase Price . The total consideration for the Purchased Assets and the termination of the Existing Agreements (the “ Purchase Price ”), is (i) $1,000,000,000 (the “ Cash Consideration ”) plus (ii) the assumption of the Assumed Liabilities. The Purchase Price shall be paid as provided for in Section 2.09 and allocated among the Purchased Assets and termination of the Existing Agreements as provided in Section 2.11.

Section 2.07. [Intentionally Omitted] .

Section 2.08. Existing Agreements . (a) Effective as of the Effective Time, Buyers and Sellers agree that each shall reacquire its rights under the Existing Agreements, and each therefore agrees that the Existing Agreements shall hereby terminate and be of no further force or effect, except as specifically provided in this Section 2.08.

(b) Notwithstanding the termination of the Existing Agreements and each provision thereof at the Effective Time pursuant to Section 2.08(a):

(i) Each of WCCL and Buyer Parent shall remain liable under the applicable Existing Agreement for any amounts accrued and payable by such party thereunder with respect to any period up to the Effective Time, including the payment set forth on Schedule 2.08(b)(i), and such amounts shall be paid when they would otherwise have become due and payable under the applicable Existing Agreement, except to the extent any such amounts are cancelled pursuant to Section 2.09(b).

(ii) Notwithstanding anything in this Agreement to the contrary, the parties agree that (A) Section 3.3 of the Master Agreement,

 

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(B) Section 7.4 of the Development Agreement, (C) Section 18.9 of the Talconex Agreement, (D) Section 15.9 of the Dovonex Agreement, (E) Sections 16(b) and (c) of the Cooperation Agreement, (F) the last sentence of the second paragraph of Section 17 of the Taclonex Pharmacovigilance Agreement, (G) the last sentence of the second paragraph of Section 17 of the Dovonex Pharmacovigilance Agreement and (H) all provisions related to confidentiality (collectively, the “ Surviving Provisions ”) shall survive the Effective Time, shall remain in full force and effect and each party shall remain liable for its obligations under such provisions.

(c) Except (x) for demands or claims under, relating to or in connection with this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby, (y) as expressly provided in Section 2.08(b) and (z) matters related to the Surviving Provisions, effective as of the Effective Time, (i) WCCL hereby releases and discharges Buyers and their respective Affiliates, and the directors, officers, employees, agents and successors of each of the foregoing, from any demand or claim of whatever kind or nature, whether known or unknown as of the Closing, arising out of or in connection with the Existing Agreements; and (ii) Buyer Parent hereby releases and discharges WCCL and its Affiliates, and the directors, officers, employees, agents and successors of each of the foregoing, from any demand or claim of whatever kind or nature, whether known or unknown as of the Closing, arising out of or in connection with the Existing Agreements. For the avoidance of doubt, Sellers acknowledge that following the Closing Sellers shall have no rights with respect to the Products or the Pipeline Products (including any products of Peplin, Inc. that would have been subject to the ROFR Agreement had the Existing Agreements not been terminated pursuant hereto) except as may be set forth in the Distribution Agreement or the Transition Services Agreement.

Section 2.09. Closing . The closing (the “ Closing ”) of (x) the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities hereunder and (y) the termination of the Existing Agreements pursuant to Section 2.08 of this Agreement shall take place simultaneously with the execution of this Agreement. The Closing shall be deemed effective at the Effective Time. At the Closing:

(a) Buyers shall pay the Cash Consideration by delivering to Seller Parent, for the benefit of the Selling Subsidiaries, $1,000,000,000 in immediately available funds by wire transfer to the account set forth on Schedule 2.09(a).

(b) All orders for Firm Ordered Inventory (including all payables owed to Buyers by any Seller in respect thereof) shall be cancelled automatically without any further action by any party hereto.

 

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(c) Sellers and Irish Buyer shall enter into an Assignment and Assumption Agreement with respect to all of the Purchased Assets (except for those assets described in Section 2.01(a)) in the form previously agreed to by the parties (the “ Assignment and Assumption Agreement ”).

(d) WC US, WC UK and Buyer Parent shall enter into a Domain Name Transfer Agreement with respect to the Domain Names set forth in Schedule 2.01(a) in the form previously agreed to by the parties (the “ Domain Name Transfer Agreement ”).

(e) WC US, Buyer Parent and Irish Buyer shall enter into a Distribution Agreement in the form previously agreed to by the parties (the “ Distribution Agreement ”).

(f) WC US and LEO Pharma Inc. shall enter into the Transition Services Agreement in the form previously agreed to by the parties (the “ Transition Services Agreement ”).

(g) Sellers shall deliver or cause to be delivered to Buyers an executed Payoff Letter in the form previously agreed by the parties (the “ Payoff Letter ”) and shall pay by wire transfer to Credit Suisse that portion of the Payoff Amount (as defined in the Payoff Letter) that is not being wired directly to Credit Suisse by Buyers at Closing, in each case, so that the release of Liens on the Purchased Assets as contemplated by the Payoff Letter shall be effective upon the Closing.

(h) Sellers shall deliver or cause to be delivered to Buyers and their respective Affiliates such other deeds, bills of sale, endorsements, consents, assignments and other instruments of conveyance and assignment as the parties and their respective counsel shall deem reasonably necessary to vest in Buyers all right, title and interest in, to and under the Purchased Assets.

Section 2.10. Allocation of Purchased Assets and Assumed Liabilities . (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, (i) all Purchased Assets set forth in Section 2.01(a) shall be sold to Buyer Parent and (ii) all other Purchased Assets shall be sold to Irish Buyer.

(b) Upon the terms and subject to the conditions of this Agreement, at the Cl