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Exhibit
10.3
EXECUTION
COPY
TRANSITION SERVICES
AGREEMENT
THIS TRANSITION SERVICES
AGREEMENT (this “ Agreement ”) is
entered into as of November 13, 2007 (the “
Effective Date ”), between NEW ABRAXIS,
INC. a Delaware corporation (to be renamed Abraxis BioScience,
Inc.) (“ New Alpha ”), and APP
PHARMACEUTICALS, INC., a Delaware corporation formerly known as
Generico Holdings, Inc. and Abraxis BioScience, Inc. (“
Gholdco ”).
Unless otherwise provided,
all cross references to Sections, Articles and Exhibits used herein
shall refer to Sections, Articles and Exhibits of this
Agreement.
RECITALS
WHEREAS , New Alpha,
Gholdco and certain other parties have entered into a Separation
and Distribution Agreement, dated as of the date hereof (the
“ Separation Agreement ”), pursuant to
which Gholdco and New Alpha will become separate companies with
Gholdco and its Subsidiaries operating the Generico Business (both
as defined in the Separation Agreement) and New Alpha and its
Subsidiaries operating the Alpha Business (as defined in the
Separation Agreement) (each a “ Business
” and collectively the “ Businesses
”); and
WHEREAS , the parties
to the Separation Agreement agreed to enter into a transition
services agreement, substantially in the form hereof, to ensure
that New Alpha and Gholdco and their respective Subsidiaries obtain
certain support and administrative services for the purpose of
assisting each other to manage an orderly separation of the
Businesses;
NOW, THEREFORE , the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain
Definitions . As used in this Agreement, the following terms
shall have the meanings set forth below:
“ Gholdco
Services ” shall mean the Services identified in
Exhibit B .
“ New Alpha
Services ” shall mean the Services identified in
Exhibit A .
“ Service
” shall mean, as applicable, a service included in the
Gholdco Services or New Alpha Services. Each service for which
there is a separate itemized price in Exhibit A or
Exhibit B shall be considered a separate Service.
1.2 Other Terms .
Except as otherwise defined herein, all other capitalized terms
used in this Agreement shall have the same meanings given to such
terms in the Separation Agreement.
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ARTICLE II
SERVICES
2.1 Provision of New Alpha
Services by New Alpha . New Alpha or its Subsidiaries shall use
commercially reasonable efforts to provide, or cause to be provided
to, Gholdco and its Subsidiaries each of the New Alpha Services in
a manner consistent with the manner in which such New Alpha
Services were provided by Abraxis BioScience, Inc. (“
Abraxis ”) and its Subsidiaries prior to the
Effective Date (but not including any historical preference or
priority given to New Alpha’s products as compared with
Gholdco’s products) and consistent with New Alpha and its
Subsidiaries’ provision of such Services for its own
business. Except as otherwise provided on Exhibit A , New
Alpha Services shall be provided until such date as this Agreement
specifies or, with regards to any specific New Alpha Service, such
specific New Alpha Service is terminated in accordance with the
terms of Article VI .
2.2 Provision of Gholdco
Services by Gholdco . Gholdco or its Subsidiaries shall use
commercially reasonable efforts to provide, or cause to be provided
to, New Alpha and its Subsidiaries each of the Gholdco Services in
a manner consistent with the manner in which such Gholdco Services
were provided by Abraxis and its Subsidiaries prior to the
Effective Time (but not including any historical preference or
priority given to New Alpha’s products as compared with
Gholdco’s products) and consistent with Gholdco and its
Subsidiaries’ provision of such Services for its own
business. Except as otherwise provided on Exhibit B ,
Gholdco Services shall be provided until such date as this
Agreement specifies or, with regards to any specific Gholdco
Service, such specific Gholdco Service is terminated in accordance
with the terms of Article VI .
2.3 Cooperation . The
parties acknowledge and agree that: (a) it is impracticable to
create an exhaustive list of Services needed to facilitate an
orderly transition of the Businesses and, accordingly, Exhibits
A and B present general outlines of the scope of the
Services to be provided by the parties; and (b) the parties
will act in good faith and reasonably cooperate with one another
during the term hereof to facilitate an orderly transition of the
Businesses.
ARTICLE III
PAYMENT FOR
SERVICES
3.1 Pricing . Each New
Alpha Service provided by New Alpha or its Subsidiaries shall be
charged to and payable by Gholdco or its Subsidiaries at the fees
for such Service determined in accordance with Exhibit A .
Each Gholdco Service provided by Gholdco or its Subsidiaries shall
be charged to and payable by New Alpha or its Subsidiaries at the
monthly fees for such Service determined in accordance with
Exhibit B . Any fees shall be prorated during the first
month and last month (as applicable) the Services are
provided.
3.2 Billing and
Payment . Charges for each of the Services provided shall be
billed on a monthly basis by the party providing the Service. Such
charges shall reflect the actual costs incurred by the party in
providing the Services. The party receiving a Service shall remit
the amount specified in any such bill within thirty
(30) calendar days after its receipt thereof. Any amount not
paid when due shall bear a late payment charge at a rate of ten
percent (10%) per annum after the due date and until
paid.
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3.3 Disputes . In the
event a dispute arises concerning a Service or payment of such
Service, the parties must meet and attempt in good faith to resolve
the dispute in accordance with the following procedure. Prior to
filing a lawsuit, seeking relief in some other forum or withholding
payment for a Service, a party must first notify the other party of
the dispute by submitting in writing an outline of its position
regarding the dispute, attaching relevant documentation to support
its position and requesting a meeting with the other party within
thirty (30) days of such notice. In response, the other party
shall submit to that party an outline of its position, attaching
relevant documentation to support its position, within thirty
(30) days of its receipt of such notice. Responsible,
authorized employees from each party shall then meet and attempt in
good faith to resolve the dispute for at least thirty
(30) days. If the dispute is not resolved within such thirty
(30) day period, then the party that originally raised the
dispute may file a lawsuit.
ARTICLE IV
WARRANTIES AND
LIABILITIES
4.1 Level of
Performance . Each party shall use commercially reasonable
efforts to provide the Services (i) consistent with the manner
in which such Services were provided by Abraxis and its
Subsidiaries prior to the Effective Date (but not including any
historical preference or priority given to New Alpha’s
products as compared with Gholdco’s products) and consistent
with such party’s provisions of such Services for its own
business, (ii) subject to Section 5.3, using
substantially the same resources as were used by Abraxis to provide
such Services with respect to the Businesses prior to the Effective
Date and (iii) in accordance with the policies, procedures and
practices in effect with respect to the Businesses prior to the
Effective Date, with such modifications after the Effective Date as
are reasonably acceptable to both parties.
4.2 Disclaimer of All
Other Warranties . EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1,
EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES (INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE)
OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
SERVICES (OR ANY SERVICES PROVIDED BY THIRD PARTIES WITH WHOM A
PARTY CONTRACTS IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES)
PROVIDED TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY EXHIBITS HEREOF.
4.3 Indemnification
.
(a) New Alpha shall, to the
full extent permitted by law, indemnify, defend and hold harmless
Gholdco, its Subsidiaries, Affiliates, officers, directors,
employees, agents (the “ Gholdco Indemnified
Parties ”) and assigns against all claims,
liabilities, damages, losses or expenses (“
Damages ”) that arise out of (i) New
Alpha’s gross negligence, bad faith, intentional misconduct
or intentional breach of this Agreement, (ii) any claim by any
Person who is not a party to this Agreement (or an Affiliate
thereof)
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(a “ Third Party
Claim ”) relating to or arising out of
Gholdco’s performance of this Agreement and not resulting
from Gholdco’s gross negligence, bad faith, intentional
misconduct or intentional breach of this Agreement, or
(iii) any Third Party Claim relating to or arising out of
Gholdco’s performance of this Agreement to the extent the
aggregate liability to such persons exceeds the limitation in
Section 4.4(b), in each case, including but not limited to
settlements, judgments, court costs, attorneys’ fees and
other litigation expenses, fines and penalties; provided, however,
that, except as set forth in clause (iii) of this
Section 4.3(a), New Alpha shall not indemnify, defend or hold
harmless any Gholdco Indemnified Party against any liability
resulting from the gross negligence, bad faith or intentional
misconduct of, or intentional breach of this Agreement by, any
Gholdco Indemnified Party in the performance of this Agreement, or
against liability under clause (i) above if New Alpha’s
gross negligence or willful misconduct results in liability,
damage, loss or expense to both New Alpha’s and
Gholdco’s business.
(b) Gholdco shall, to the
full extent permitted by law, indemnify, defend and hold harmless
New Alpha, its Subsidiaries, Affiliates, officers, directors,
members, employees, agents (the “ New Alpha Indemnified
Parties ”) and assigns against all Damages that arise
out of (i) Gholdco’s gross negligence, bad faith,
intentional misconduct or intentional breach of this Agreement,
(ii) any Third Party Claim relating to or arising out of New
Alpha’s performance of this Agreement and not resulting from
New Alpha’s gross negligence, bad faith, intentional
misconduct or intentional breach of this Agreement or
(iii) any Third Party Claim relating to or arising out of New
Alpha’s performance of this Agreement to the extent the
aggregate liability to such persons exceeds the limitation in
Section 4.4(c), in each case, including but not limited to
settlements, judgments, court costs, attorneys’ fees and
other litigation expenses, fines and penalties; provided ,
however , that, except as set forth in clause (iii) of
this Section 4.3(b), Gholdco shall not indemnify, defend or
hold harmless any New Alpha Indemnified Party against any liability
resulting from the gross negligence, bad faith or intentional
misconduct of, or intentional breach of this Agreement by, any New
Alpha Indemnified Party in the performance of this Agreement, or
against liability under clause (i) above if Gholdco’s
gross negligence or willful misconduct results in liability,
damage, loss or expense to both New Alpha’s and
Gholdco’s business.
(c) The procedure by which
each of the parties to this Agreement performs its obligations
under subsections (a) and (b) above shall be in
accordance with Sections 4.04, 4.05 (excluding the last sentence of
Section 4.05(a) of the Separation Agreement) and 4.06 of the
Separation Agreement.
4.4 Limitation of
Liability .
(a) NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, NEITHER PARTY WILL BE LIABLE HEREUNDER
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF
PROFITS FROM THE USE OF (OR INABILITY TO USE) THE SERVICES OR
OTHERWISE IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT,
OTHER THAN SOLELY FOR GHOLDCO EXTRAORDINARY FAILU
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