February 12, 2020

Mylan/Agila Specialties (FTC 2013)

Deal SummaryCooperation | Conditions Precedent |Defense Strategy | Litigation Commitments | Remedy Commitments | Reverse Break Fees | Termination Provisions



(a)               Deal Summary. Mylan and Strides Arcolab Limited entered into a definitive agreement for the acquisition of the Agila injectables business from Strides Arcolab Limited on February 27, 2013. The deal was valued at $1.75 billion, which included $250 million contingent consideration. While Mylan lead the strategy, both parties agreed to use “best endeavors” to close the transaction, including divestitures so long as the divestiture did not have a material adverse effect. Mylan and Agila entered into a consent agreement with the FTC to divest 11 generic injectable drugs as a condition of allowing Mylan’s proposed acquisition of Agila. The parties completed the deal on December 4, 2013.

(b)               Cooperation. §4.9: 4.9 To the extent permitted by Applicable Law and subject to appropriate protections to confidential information and any privilege applicable to the Purchaser or the Seller, each Party undertakes that it will:

                        4.9.1    not submit, send, make or disclose any material notification, application, submission, communication or written information to a Competition Authority in relation to the subject matter of this Agreement or any other Transaction Document, either pre-or post-notification, without first: (A) promptly providing the other Party with a copy of: (1) a draft of such material notification, application, submission, communication or written information; and (2) a notification as to the substance of any related proposed oral communications regarding material substantive matters with the relevant Competition Authority; (B) giving the other Party an opportunity, reasonably in advance of filing to discuss such draft notification, application, submission, communication or written information before it is submitted, sent, made or disclosed to the relevant Competition Authority; and (C) taking into account any reasonable comments provided by the other Party;

                        4.9.2    promptly notify the other Party of all substantive requests and enquiries from the relevant Competition Authority and those requests shall be dealt with by the Purchaser and the Seller jointly, as applicable;

                        4.9.3    promptly provide the other Party with copies of all substantive correspondence received by it from, or sent by it to, a relevant Competition Authority;

                        4.9.4    engage in reasonable consultation with the other Party, in preparing for all meetings with the relevant Competition Authority in relation to the Transaction and offer the other Party the opportunity to attend all such meetings (where permitted by the relevant Competition Authority);

                        4.9.5    to the extent permitted by Applicable Law, provide the other Party with reasonable access to information relating to the Competition Approvals; and

                        4.9.6    keep the other Party promptly informed of progress of the applications for Competition Approvals.

(c)                Conditions Precedent. Schedule 2 §1, 3: There shall be no:

                        1.1.1    injunction, order, Proceeding or decree of any nature of any Governmental Authority of competent jurisdiction that is in effect that prevents the consummation of the transactions contemplated by this Agreement; or

                        1.1.2    Applicable Law that is in effect that prevents the consummation of the transactions contemplated by this Agreement.

                        For purposes of this paragraph 1, the terms below will have the definitions set forth in this paragraph, instead of the definitions set forth in Schedule 12:

                        “Governmental Authority” shall mean any multinational, national, federal or state government, or any entity, authority, agency, ministry, commission, tribunal, arbitral body, court or other similar body exercising executive, legislative, judicial, taxing, regulatory or administrative authority or functions of such government, including any authority or quasi- governmental entity established to perform any of these functions; and

                        “Proceeding” shall mean any action, litigation or suit (whether civil, criminal, administrative, judicial or investigative) commenced or brought, by or before any Governmental Authority.

                        3.         REGULATORY APPROVALS

                        3.1       Insofar as the Transaction, in whole or in part, gives rise to:

                        3.1.1    a notification obligation under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), the notifications of the Seller and the Purchaser pursuant to the HSR Act having been made to the USA Federal Trade Commission or the U.S. Department of Justice, Antitrust Division; and

                        3.1.2    any other mandatory merger control notification obligation in any jurisdiction where the Company has made material sales since 1 January 2012, all such mandatory merger control filings having been made to the relevant Competition Authority in respect of the Transaction, provided that for this purpose, sales in a jurisdiction shall be deemed to be material if sales revenues generated in that jurisdiction exceeded ***

                        3.2       In respect of any notification obligation arising under paragraphs 3.1.1 and 3.1.2 of this Schedule 2:

                        3.2.1    all consents and approvals of any such Competition Authority which are required to be obtained before the Transaction may be completed having been obtained either unconditionally or subject to such Commitments as shall be reasonably acceptable to the Seller and the Purchaser and in accordance with Clause 4.4 of this Agreement; or

                        3.2.2    all applicable mandatory waiting periods and any extensions thereof in connection with the relevant notification having expired or been terminated

(d)               Defense Strategy. §4.8: 4.8 The Purchaser will be primarily responsible for preparing the clearance applications or filings contemplated or required to be made jointly to obtain such competition approvals or clearances, or to answer any requests from any non-U.S. agency, entity or other government authority responsible for the enforcement of applicable antitrust, competition or merger control laws in the jurisdiction (together with the U.S. Federal Trade Commission and the U.S. Department of Justice, Antitrust Division, herein referred to as the relevant “Competition Authorities”).

(e)                Litigation Commitments. N/A.

(f)                Remedy Commitments. §4.3-4.4: Satisfaction of Conditions

                        4.3       The Seller shall, at its own cost (save that the Purchaser shall bear its own costs in respect of the Competition Approvals), use its best endeavours to satisfy or procure the satisfaction of the Conditions set out at paragraphs 1, 2 and 3 of Schedule 2 as soon as reasonably practicable and in any event on or before the Longstop Date.

                        4.4       The Purchaser shall, at its own cost (save that the Seller shall bear its own costs in respect of the Competition Approvals), use its best endeavours to satisfy or procure the satisfaction of the Conditions set out at paragraphs 1, 2.7 and 3 of Schedule 2 as soon as reasonably practicable and in any event on or before the Longstop Date, provided, however, that nothing in this Agreement shall require, or be construed to require, the Purchaser to:

                        4.4.1    sell, transfer or otherwise dispose of (i) any Assets of the Purchaser or any of its Affiliates, or (ii) any Assets of any Group Company ***; or

                        4.4.2    agree to any other commitment, undertaking, modification, obligation, remedy, sanction or measure proposed by any Competition Authority, Regulatory Authority or Governmental Authority in connection with the transactions contemplated by this Agreement or any other Transaction Document; or

                        4.4.3    agree, undertake or commit to do any of the foregoing.

                        Notwithstanding the foregoing, with respect to Clauses 4.4.1 through 4.4.3, the Purchaser shall be required to sell, transfer or dispose of any Assets or agree to any remedy, sanction, commitment, undertaking, modification, obligation or measure having a similar effect to a sale, transfer or disposal with respect to any Assets, or agree to any of the foregoing (collectively, a “Commitment”) (whether such Commitment relates to a Group Company, the Purchaser or any of its Affiliates, and whether such Commitment relates to a Product Registration, any application filed for a Product Registration, rights to a pharmaceutical product under development, services provided to a third party in respect of any pharmaceutical product or otherwise) that in any case would not reasonably be expected to materially and adversely affect the expected benefit of the transactions contemplated hereby to the Purchaser or its Affiliates (including the Group Companies after the Completion Date). For this purpose, a Commitment shall be deemed to materially and adversely affect the expected benefit of the transactions contemplated thereby if it imposes directly or indirectly an obligation to sell, transfer, dispose or agree to any remedy, sanction, commitment, undertaking, modification, obligation or measure having a similar effect to a sale, transfer or disposal in respect of any Assets (whether such Assets are of a Group Company, the Purchaser or any of its Affiliates, and whether such Assets are or relate to a Product Registration, any application filed for a Product Registration, rights to a pharmaceutical product under development, services provided to a third party in respect of any pharmaceutical product or otherwise) generating, in the aggregate, more than ***.

                        *** Denotes confidential information that has been omitted from this exhibit and filed separately with the Securities and Exchange Commission.

(g)               Reverse Break Fees. N/A.

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. §6.5-6.6: Limited Right to Terminate.

                        6.5       Subject to Clause 6.6, neither the Purchaser nor the Seller shall have any right (including any right under common law or any right in respect of claims arising under or in connection with this Agreement, other than in the case of fraud or fraudulent misrepresentation) to rescind or terminate or fail to perform this Agreement and shall not be entitled to treat the Seller or the Purchaser, as applicable, as having repudiated this Agreement.

                        6.6       Notwithstanding Clause 6.5, this Agreement may be terminated:

                        6.6.1    by the Purchaser, by written notice to the other Parties, if: (A) provided the Purchaser is not then in material breach of any of the Purchaser Warranties, or any of its undertakings, covenants or agreements contained in this Agreement, there has been a breach of any of the Fundamental Seller Warranties, and which breach if capable of being cured has not been cured within *** of discovery of the breach; (B) the Seller is declared insolvent, or has filed any petition to initiate bankruptcy Proceedings, winding up Proceedings, suspension of payments, a creditor’s arrangement or any other similar insolvency Proceedings; or (C) a Material Adverse Effect has occurred which is incapable of remedy or, if reasonably capable of remedy, has not been remedied *** of the occurrence of the Material Adverse Effect.

                        6.6.2    by the Seller, by written notice to the other Parties, if: (A) provided the Seller is not then in material breach of any of the Seller Warranties, or any of its undertakings, covenants or agreements contained in this Agreement, there has been a breach of any of the Purchaser Warranties, and which breach if capable of being cured has not been cured or cannot be cured prior to the Longstop Date; or (B) the Purchaser is declared insolvent, or has filed any petition to initiate bankruptcy Proceedings, winding up Proceedings, suspension of payments, a creditor’s arrangement or any other similar insolvency Proceedings.