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Exhibit 10.3 - Confidential Materials Omitted And Filed
Separately With The Securities And Exchange Commission. Asterisks
Denote Omissions
Final
LEASE AGREEMENT
THIS LEASE AGREEMENT (the " Agreement ")
is entered into in Taizhou, China on July 3, 2007 (the "
Effective Date ") between:
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(1) Zhejiang Hisun Pharmaceutical Co., Ltd., 46
Waisha Road, Jiaojiang District, Taizhou City, Zhejiang, The
Peoples Republic of China (hereinafter referred to as "
Hisun "), whose legal representative is Mr. Bai Hua, who
holds the position of President, and is of Chinese nationality;
and
(2) Alpharma (Taizhou) Pharmaceutical Co., Ltd.,
56 Binhai Road, Jiaojiang District, Taizhou City, Zhejiang, The
Peoples Republic of China (hereinafter referred to as "
Alpharma "), whose legal representative is Mr.
Carl-Åke Carlsson, who holds the position of Chairman of the
Board, and is of Norwegian nationality.
WHEREAS, Alpharma and Hisun have concurrently
herewith entered into an Acquisition and Construction Agreement
concerning Alpharma's purchase from Hisun of certain of Hisun's
assets used to produce Vancomycin, including final handling, and
Hisun's construction for Alpharma of an additional manufacturing
facility to produce Vancomycin; and
WHEREAS, pursuant to the Acquisition and
Construction Agreement, Hisun has also agreed to lease to Alpharma
certain buildings and equipment presently used and/or to be used in
the manufacture of Vancomycin; and
WHEREAS, the Parties wish to memorialize in this
Agreement the lease arrangements contemplated under the Acquisition
and Construction Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED as
follows:
1.
Definitions
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1.1 In this Agreement, capitalized terms not
defined herein shall have the meanings set forth in the Index of
Terms attached as Schedule 1 to the Acquisition and Construction
Agreement. In addition, the following terms and expressions shall
have the respective meanings set forth below:
1.2 " Leased Buildings " has the meaning
specified in Clause 2.2.
1.3 " Leased Manufacturing Equipment "
has the meaning specified in Clause 2.3.
1.4 " Leased Property " shall mean the
Leased Buildings and the Leased Manufacturing Equipment.
1.5 " Rent " has the meaning specified in
Clause 3.1.
2. Agreement to
Lease
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2.1 Hisun agrees to lease to Alpharma the Leased
Property, and Alpharma agrees to lease from Hisun the Leased
Property, in accordance with the terms and conditions set forth in
this Agreement.
2.2 The Leased Buildings are located at ****.
The Leased Buildings shall comprise the following:
2.3 The Leased Manufacturing Equipment shall
comprise the following:
2.4 The Parties recognize and agree that the
buildings and premises that are part of the Leased Property are
located within areas and premises owned and used by Hisun. Hisun
agrees to allow Alpharma's Employees and representatives full and
unrestricted access to and from the Leased Property.
3. Rent
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3.1 In consideration for the right to use the
Leased Property, Alpharma shall pay ****.
3.2 The Rent specified in Clause 3.1 shall not
be subject to any adjustment unless expressly agreed between the
Parties.
3.3 The Rent payable according to Clause 3.1
shall be payable ****. In the event Alpharma fails to pay the Rent
for more than 15 days after the due date, Alpharma shall pay a
penalty computed at the rate of 1.0% per month of the payment
due.
3.4 The Rent shall be invoiced by Hisun and
payable in the RMB-equivalent of the U.S. dollar-denominated amount
(using the RMB-US dollar conversion rate in effect on the date of
the invoice according to the Financial Times).
3.5 Each Party shall be individually responsible
for the payment of any taxes imposed on it under the laws of the
People's Republic of China or otherwise, and this Agreement shall
not shift any tax obligation between the Parties.
3.6 No security deposit is payable by Alpharma
in respect of the Leased Property.
4. Utilities
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4.1 Hisun will supply utilities for the Leased
Property and Manufacturing Equipment located therein including but
not limited to heating, electricity, hot and cold water and steam
as requested by Alpharma from time to time. The Rent payable by
Alpharma hereunder is not in consideration for the supply of such
utilities; rather, such utilities are provided according to the
terms of, and for the consideration set forth in, the Operation
Services Agreement.
5. Authorized Use of the
Leased Property
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5.1 Alpharma may use the Leased Property for
****.
5.2 Hisun warrants that the use of the Leased
Property for the purpose stipulated in Clause 5.1 above is in
accordance with applicable law in The People's Republic of China as
of the Effective Date.
5.3 Alpharma will ensure from time to time that
the business carried out by Alpharma at the Leased Property during
the term of the Agreement complies with public regulations of The
People's Republic of China. Alpharma shall utilize the Leased
Equipment in a normal commercial manner and use reasonable
commercial efforts to comply with applicable manufacturer's
guidelines.
5.4 Alpharma shall be entitled to have its
registered business address at the Leased Buildings if required by
the laws or regulations of The People's Republic of China.
6. Maintenance and Site
Service
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6.1 Hisun shall at its own cost be responsible
for the structural, exterior and interior maintenance of the Leased
Property, including all exterior and interior and surfaces, whether
painted, whitewashed, oiled or similarly treated surfaces, and
shall maintain the Leased Property in good state of repair at all
times, including any maintenance that is the result of ordinary
wear and tear from the anticipated use of the Leased Property.
6.2 Hisun shall be responsible for the provision
of all ordinary site services including but not limited to facility
management, fire brigade services, telecommunication lines,
exterior cleaning of the property and outdoor facilities, snow
clearing, etc.
6.3 Alpharma shall immediately notify Hisun of
any damage to the Leased Property that urgently requires remedial
work. Alpharma shall handle the Leased Property with due care and
shall remedy any damage to the Leased Property caused by Alpharma's
failure to handle the Leased Property with due care or other
neglect on the part of Alpharma.
6.4 Alpharma shall agree to insure the Leased
Property or any part thereof against any direct physical loss or
damage to the Leased Property. Such insurance would be obtained at
Alpharma's own cost.
7. Changes to the Leased
Property
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7.1 Alpharma is entitled to make alterations to
the buildings and equipment that are part of the Leased Property,
provided such alterations are reasonably required for the operation
of the Manufacturing Facility, without the necessity of obtaining
the approval of Hisun. Major structural alterations to the Leased
Property shall require the written approval of Hisun.
7.2 Alpharm
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