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AMENDMENT NUMBER TWO
TO SELECTIVE WAIVER AGREEMENT
THIS SECOND AMENDMENT TO THE SELECTIVE WAIVER AGREEMENT
(the " Second Amendment ") is hereby made as of
February 7, 2005 by and between Alpharma, Inc., a Delaware
corporation, with offices at One Executive Drive, Fort Lee, NJ
07024, (" ALO "), and Teva Pharmaceutical Industries Ltd.,
an Israel corporation, with offices located at 5 Basel Street, P.O.
Box 3190, Petach Tikva, Israel 49131 (" Teva "). ALO and
Teva are sometimes together referred to herein as the "
Parties " and separately as a " Party ."
WHEREAS , ALO and Teva entered into a certain Selective
Waiver Agreement dated April 26, 2004 (the "Waiver Agreement") and
contemporaneously therewith on April 26, 2004 the Parties
respective Affiliates Purepac Pharmaceutical Co. ("Purepac") and
Plantex USA, Inc. ("Plantex") entered into a certain Amended and
Restated Supply Agreement (the "Supply Agreement")(the Waiver
Agreement and the Supply Agreement are collectively referred to as
the "Original Agreements");
WHEREAS , ALO and Teva entered into a certain amendment
to the Waiver Agreement dated September 24, 2004 and letter
agreement dated October 7, 2004; and
WHEREAS , the Parties desire to enter into this Second
Amendment to make certain changes to the terms and conditions of
the Waiver Agreement in order to better reflect the current mutual
intent and desire of the Parties.
NOW, THEREFORE , in consideration of the foregoing
premises and the mutual agreements set forth in the Waiver
Agreement and this Second Amendment (and notwithstanding anything
in the Original Agreement to the contrary), the Parties hereby
agree as follows:
1. Definitions . All
capitalized terms used herein, unless otherwise defined herein, are
defined in the Original Agreements. For the purposes of this Second
Amendment, the following words and phrases shall bear the
respective meanings assigned to them below (and cognate expressions
shall bear corresponding meanings):
a.
" Lawsuit Termination " shall mean the entry of a
final order by the United States Court of Appeals for the District
of Columbia dismissing with prejudice the case entitled, Ivax
Pharmaceuticals, Inc. ("Ivax") v. Food and Drug
Administration et al. and Purepac Pharmaceutical Co ., Appeal
No. 04-5320, prior to the issuance of a decision in that appeal by
that Court.
b.
" Early Payment Sum " shall mean, with respect to
each Product, the amount of ALO Margin generated during the period
starting with the Ivax Launch Date through the end of the Margin
Period.
c.
" Ivax Launch Date " shall mean, as applicable,
the date on which Ivax makes its first commercial sale of its
Capsule Product or its Tablet Product to an unaffiliated Third
Party in an arms-length transaction in the Territory, provided,
however, that in no event whatsoever shall such date be earlier
than (i) March 23, 2005 for the Capsule Product, and (ii
