exv10w1






EXHIBIT 10.1




TAX SHARING AGREEMENT




     This Tax Sharing Agreement
(this “Agreement”) is entered into as of June 13, 2008 between
Bentley Pharmaceuticals, Inc., a Delaware corporation (“Bentley”), and CPEX
Pharmaceuticals, Inc., a Delaware corporation and wholly owned subsidiary of Bentley
(“CPEX” and together with Bentley, the “Parties”). Capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings ascribed to such terms in the
Separation and Distribution Agreement, dated as of the date hereof, by and between Bentley and CPEX
(the “Separation Agreement”).



RECITALS




     Whereas, Bentley is the common parent corporation of an affiliated group of corporations
within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as amended (the
“Code”), that has filed consolidated federal income tax returns.



     Whereas, CPEX is a newly-formed, wholly owned subsidiary of Bentley.



     Whereas, pursuant to the Separation Agreement, among other things, Bentley will transfer to
CPEX all of the CPEX Assets and CPEX will issue to Bentley shares of CPEX Common Stock and CPEX
will contribute all of the CPEX Assets to CPEX Pharma, Inc., a Delaware corporation, newly-formed
and wholly owned subsidiary of CPEX, in exchange for common stock (collectively, the “Contribution”);



     Whereas, on the Distribution Date, Bentley will distribute all of the issued and outstanding
shares of CPEX Common Stock on a pro rata basis to holders of Bentley Common Stock (the
“Distribution”);



     Whereas, the Parties intend that the Distribution shall not qualify as a distribution
described in Section 355 of the Code (the “Distribution Tax Treatment”);



     Whereas, the Parties intend that after the Distribution none of CPEX or its Subsidiaries will
be a member of the Bentley Group for federal income tax purposes;



 









 





     Whereas, the Parties intend that
the Contribution, taking into account the Distribution, shall qualify
as a series of transfers described in Section 351(a) of th eCode
or otherwise as a transaction eligible for tax-free treatment under
the Code (the “Contribution Tax Treatment”); and



     Whereas, the Parties desire to set forth their rights and obligations with respect to Taxes
(as defined herein) due for periods before and after the Distribution Date;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:



ARTICLE I.




DEFINITIONS




     1.01 GENERAL. As used in this Agreement, the following terms shall have the following
meanings:


“Affiliate” shall have the meaning set forth in the Separation Agreement.



“Agreement” shall have the meaning set forth in the preamble to this Agreement.



“Ancillary Agreements” shall mean the Ancillary Agreements as set forth in the Separation
Agreement together with the Separation Agreement.



“Bentley” shall have the meaning set forth in the preamble to this Agreement.



“Bentley Filed Tax Return” shall have the meaning set forth in Section 2.01(a).



“Bentley Group” shall have the meaning set forth in the Separation Agreement.



“Bentley Indemnitees” shall have the meaning set forth in Section 4.01(b).



“Bentley Taxes” shall have the meaning set forth in Section 2.03(b).



“Code” shall have the meaning set forth in the recitals.




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“Contribution” shall have the meaning set forth in the recitals.



“Contribution Tax Treatment” shall have the meaning set forth in the recitals.



“CPEX” shall have the meaning set forth in the preamble to this Agreement.



“CPEX Assets” shall have the meaning set forth in the Separation Agreement.



“CPEX Business” shall have the meaning set forth in the Separation Agreement.



“CPEX Common Stock” shall have the meaning set forth in the Separation Agreement.



“CPEX Filed Tax Return” shall have the meaning set forth in Section 2.01(b).



“CPEX Group” shall have the meaning set forth in the Separation Agreement.



“CPEX Indemnitees” shall have the meaning set forth in Section 4.01(a).



“CPEX Taxes” shall have the meaning set forth in Section 2.03(a).



“Dispute” shall have the meaning set forth in Article VIII.



“Distribution” shall have the meaning set forth in the recitals.



“Distribution Date” shall mean the date on which the Distribution shall become effective.



“Distribution Tax Treatment” shall have the meaning set forth in the recitals.



“Final Determination” shall mean a determination within the meaning of Section 1313 of the
Code or any similar provision of state or local Tax law.



“Governmental Authority” shall have the meaning set forth in the Separation Agreement.



“Group” shall have the meaning set forth in the Separation Agreement.




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“Liabilities” shall have the meaning set forth in the Separation Agreement.



“Merger Date” shall mean the Closing Date as set forth in the Agreement and Plan of Merger,
dated as of the date hereof, by and among Teva Pharmaceutical Industries Limited, Beryllium Merger
Corporation and Bentley.



“Parties” shall have the meaning set forth in the preamble to this Agreement.



“Person” shall have the meaning set forth in the Separation Agreement.



“Post-Distribution Period” shall mean any taxable year or other taxable period beginning
after the Distribution Date and, in the case of any taxable year or other taxable period that
begins before and ends after the Distribution Date, that part of the taxable year or other taxable
period that begins at the beginning of the day after the Distribution Date.



“Pre-Distribution Period” shall mean any taxable year or other taxable period that ends on
or before the Distribution Date and, in the case of any taxable year or other taxable period that
begins before and ends after the Distribution Date, that part of the taxable year or other taxable
period through the close of the Distribution Date.



“Separation Agreement” shall have the meaning set forth in the preamble to this Agreement.



“Subsidiary” shall have the meaning set forth in the Separation Agreement.



“Taxes” shall mean (i) all taxes, charges, fees, duties, levies, imposts, rates or other
assessments or governmental charges of any kind imposed by any federal, state, local or foreign
Governmental Authority, including, without limitation, income, gross receipts, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental, custom duties, property,
sales, use, license, capital stock, transfer, franchise, registration, payroll, withholding, social
security, unemployment, disability, value added, alternative or add-on minimum or other taxes,
whether disputed or not, and including any interest, penalties, charges or additions attributable
thereto, (ii) liability for the payment of any amount of the type described in clause (i) above
arising as a result of being (or having been) a member of any group or being (or having been)
included or required to be included in any Tax Return related thereto, and (iii) liability for the
payment of any amount of the type described in clauses (i) or (ii) above as a result of any express
or implied obligation to indemnify or otherwise assume or succeed to the liability of any other
Person.



“Tax Advisor” shall have the meaning set forth in Article VIII.




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“Tax Contest” shall have the meaning set forth in Section 5.01.



“Tax Information Packages” shall mean any information required in order to prepare and file
any Bentley Filed Tax Return.



“Tax Materials” shall have the meaning set forth in Section 3.01(a).



“Tax Return” shall mean any return, report, certificate, form or similar statement or
document (including any related supporting information or schedule attached thereto and any
information return, amended tax return, claim for refund or declaration of estimated tax) required
to be supplied to, or filed with, a Governmental Authority or any bill for or notice related to ad
valorem or other similar Taxes received from a Governmental Authority, in each case, in connection
with the determination, assessment or collection of any Tax or the administration of any laws,
regulations or administrative requirements relating to any Tax.




     1.02 REFERENCES; INTERPRETATION. References in this Agreement to the singular shall be held
to include the plural and vice versa and words of one gender shall be held to include the other
gender as the context requires. The terms “hereof,” “herein,” and “herewith” and words of similar
import shall, unless otherwise stated, be construed to refer to this Agreement (or the applicable
Ancillary Agreement) as a whole (including all of the Schedules and Exhibits hereto and thereto)
and not to any particular provision of this Agreement (or such Ancillary Agreement). Article,
Section, Exhibit, Schedule and Appendix references are to the Articles, Sections, Exhibits,
Schedules and Appendices to this Agreement (or the applicable Ancillary Agreement) unless otherwise
specified. The word “including” and words of similar import when used in this Agreement (or the
applicable Ancillary Agreement) shall mean “including, without limitation,” unless the context
otherwise requires or unless otherwise specified. The word “or” shall not be exclusive. Any
definition of or reference to any statute shall be construed as referring also to any rules and
regulations promulgated thereunder.



ARTICLE II.




TAX RETURNS AND TAX PAYMENTS




     2.01 OBLIGATIONS TO FILE TAX RETURNS.



          (a) Bentley shall have the sole and exclusive responsibility for the preparation and filing of
each Tax Return that (x) includes any member of the Bentley Group or the CPEX Group and that is
required to be filed on or before the Distribution Date or (y) includes any member of the Bentley
Group and that is required to be filed after the Distribution Date (each, a “Bentley Filed Tax
Return”); provided, however, that (1) all Bentley Filed Tax Returns shall be prepared on a
basis that is consistent with both the Contribution Tax Treatment and the Distribution Tax
Treatment, (2) CPEX shall promptly prepare and deliver to Bentley in a manner consistent with past
practices pro forma Tax Returns and Tax Information Packages for any




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taxable period in which any member of the CPEX Group is included in, or any portion of the
CPEX Business is reflected on, a Bentley Filed Tax Return, (3) Bentley shall provide to CPEX
sufficiently in advance of the due date for the filing thereof, and CPEX shall have a reasonable
opportunity to review and comment on, any such Bentley Filed Tax Return (or the relevant portion
thereof) to the extent that CPEX is responsible for any portion of the Taxes reported on such
Bentley Filed Tax Return, and (4) in the case of any Bentley Filed Tax Return that includes any
member of the CPEX Group or the CPEX Business only for the portion of the relevant taxable period
that ends on the Distribution Date, Taxes shall be allocated to the portion of such taxable period
that ends on the Distribution Date based on an actual or hypothetical closing of the books at the
close of the Distribution Date. Each member of the CPEX Group hereby irrevocably authorizes and
designates Bentley as its agent, coordinator and administrator for the purpose of taking any and
all actions necessary or incidental to the filing of any such Bentley Filed Tax Returns and, except
as otherwise provided herein, for the purpose of making payments to, or collecting refunds from,
any Governmental Authority in respect of a Bentley Filed Tax Return. Except as otherwise provided
herein, Bentley shall have the exclusive right to file, prosecute, compromise or settle any claim
for, or refund of, Taxes in respect of a Bentley Filed Tax Return for which Bentley bears
responsibility hereunder and to determine whether any refunds of Taxes to which the Bentley Group
may be entitled shall be received by way of refund or credit against the Tax liability of the
Bentley Group.




          (b) CPEX shall have the sole and exclusive responsibility for the preparation and filing of
each Tax Return that is required to be filed after the Distribution Date that includes any member
of the CPEX Group or otherwise relates to the CPEX Business that is not a Bentley Filed Tax Return
(each, a “CPEX Filed Tax Return”); provided, however, that, except as otherwise required by
law, (1) all CPEX Filed Tax Returns shall be prepared on a basis that is consistent with both the
Contribution Tax Treatment and the Distribution Tax Treatment, (2) CPEX shall provide to Bentley
sufficiently in advance of the due date for the filing thereof, and Bentley shall have a reasonable
opportunity to review and comment on, any such CPEX Filed Tax Return (or the relevant portion
thereof) to the extent that Bentley is responsible for any portion of the Taxes reported on such
CPEX Filed Tax Return, and (3) in the case of any CPEX Filed Tax Return that includes any member of
the CPEX Group or the CPEX Business only for the portion of the relevant taxable period that begins
after the Distribution Date, Taxes shall be allocated to the portion of such taxable period that
begins after the Distribution Date based on an actual or hypothetical closing of the books at the
close of the Distribution Date.




     2.02 OBLIGATION TO REMIT TAXES. Subject to Section 2.01 and subject always to the ultimate
division of responsibility for Taxes set out in Section 2.03, Bentley and CPEX shall each remit or
cause to be remitted to the applicable Governmental Authority in a timely manner any Taxes due in
respect of any Tax Return that such Party is required to file (or, in the case of a Tax for which
no Tax Return is required to be filed, which is otherwise payable by such Party or a member of such
Party’s Group to any Governmental Authority); provided, however, that in the case of any Tax
Return, the Party not required to file such Tax Return shall remit to the Party required to file
such Tax Return in immediately available funds the amount of any Taxes reflected on such Tax Return
for which the former Party is responsible hereunder at least



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two (2) Business Days before payment of the relevant amount is due to a Governmental
Authority.




     2.03 TAX SHARING OBLIGATIONS AND PRIOR AGREEMENTS.



          (a) CPEX and the members of the CPEX Group shall be responsible for the payment of (and shall
be entitled to any refund of or credit for) all Taxes (i) that are attributable to any member of
the CPEX Group or the CPEX Business for any taxable period, in accordance with the principles set
forth in Section 2.01(a)(4), provided, however, that (x) the determination of any such Taxes for
any Pre-Distribution Period shall be made treating the CPEX Group or the CPEX Business, as
applicable, as a stand-alone corporation, using methods and conventions consistent with past
practices, (y) such Taxes shall not include any Taxes incurred by any member of any Group in
connection with either the Contribution or the Distribution, and (z) such Taxes shall be net of any
Tax attributes attributable to the CPEX Group, the CPEX Business or the Bentley Group that are
available as of the close of the Merger Date (taking into account any Tax liability incurred by any
member of the Bentley Group in connection with either the Contribution or the Distribution) to
reduce (whether or not they actually reduce as of such date) the Tax Liability of any member of any
Group for any Pre-Distribution Period or any member of the Bentley Group for any Post-Distribution
Period, or (ii) resulting from any breach of or inaccuracy in any representation, covenant or
obligation of any member of the CPEX Group under this Agreement (collectively, “CPEX
Taxes”).




          (b) Bentley and the members of the Bentley Group shall be responsible for the payment of (and
shall be entitled to any refund of or credit for) all Taxes (i) that are attributable to any member
of the Bentley Group, other than CPEX Taxes, or (ii) resulting from any breach of or inaccuracy in
any representation, covenant or obligation of any member of the Bentley Group under this Agreement
(collectively, “Bentley Taxes”).




          (c) If, prior to the Distribution, a deposit (including a payment of estimated Taxes) were
made with respect to any Tax for which CPEX or the members of the CPEX Group are responsible under
this Agreement, such deposit shall be assigned to CPEX and CPEX shall be liable only for the amount
of such Tax ultimately due in excess of the applicable deposit. To the extent the amount of such
deposit exceeds the amount of Tax attributable to such deposit that is ultimately due, Bentley
shall pay such excess over to CPEX within five days after the filing of the applicable Bentley
Filed Tax Return.




          (d) Refunds received and the amount of credits claimed by one Party with respect to Taxes for
which the other Party or the members of such other Party’s Group are responsible under this
Agreement, shall be remitted to such other Party within five days after the first Party receives
such refund or files the Tax Return claiming such refund or credit, as applicable. In the event
that any such credit is subsequently reduced as a result of any adjustment required by any
Governmental Authority, such other Party shall pay the amount of




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such reduction to the first Party within five days of receiving notice of such reduction from
the first Party.




          (e) At CPEX’s request, the Bentley Group shall, at CPEX’s expense, use its reasonable best
efforts to obtain any refund or credit of a Tax or item included in a Bentley Filed Tax Return to
which any member of the CPEX Group is entitled pursuant to this Agreement, including through filing
appropriate forms with the applicable Governmental Authority; provided that the Bentley Group shall
not be required to comply with such request if Bentley reasonably determines that attempting to
obtain such refund or credit will have a material adverse impact on any member of the Bentley
Group.




          (f) Except as set forth in this Agreement, any and all prior Tax sharing or allocation
agreements or practices between any member of the Bentley Group and any member of the CPEX Group
shall be terminated with respect to the CPEX Group as of the Distribution Date, and no member of
the CPEX Group shall have any continuing rights or obligations thereunder.




     2.04 AMENDED RETURNS.



          (a) CPEX shall not, and shall not permit any member of the CPEX Group to, file any amended Tax
Return that includes any member of the Bentley Group.




          (b) Bentley shall not, and shall not permit any member of the Bentley Group to, file any
amended Tax Return that that may increase any CPEX Tax or otherwise give rise to indemnification
pursuant to Section 4.01(b).




ARTICLE III.




COVENANTS




     3.01 CPEX COVENANTS. Notwithstanding anything else to the contrary contained in this
Agreement or any other agreement, CPEX (on behalf of itself and all other members of the CPEX
Group) hereby confirms and agrees that neither CPEX nor any member of the CPEX Group will take or
permit to be taken any action at any time that could jeopardize the Contribution Tax Treatment, the
Distribution Tax Treatment or both.



     3.02 BENTLEY COVENANTS. Notwithstanding anything else to the contrary contained in this
Agreement or any other agreement, Bentley (on behalf of itself and all other members of the Bentley
Group) hereby confirms and agrees that neither Bentley nor any member of the Bentley Group will
take or permit to be taken any action at any time that could jeopardize, the Contribution Tax
Treatment, the Distribution Tax Treatment or both. Notwithstanding the



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foregoing, Bentley or a member of the Bentley Group may take or permit to be taken any action
prohibited by the preceding sentence, subject to, and without limiting or modifying, Bentley’s
continuing indemnification obligation under Section 4.01(a), if (x) Bentley obtains the written
consent of CPEX (which consent shall not be unreasonably withheld) or (y) Bentley obtains a ruling
from the Internal Revenue Service or an opinion of a nationally recognized law firm, in form and
substance reasonably satisfactory to CPEX, that the taking of such action will not materially
adversely affect either the Contribution Tax Treatment or the Distribution Tax Treatment.




ARTICLE IV.




INDEMNITY OBLIGATIONS AND PAYMENTS




     4.01 INDEMNITY OBLIGATIONS.



          (a) Notwithstanding whether any action is permitted or consented to hereunder and
notwithstanding anything else to the contrary contained herein, Bentley shall indemnify and hold
harmless CPEX, each member of the CPEX Group and their respective directors, officers and employees
(collectively, the “CPEX Indemnitees”) from and against, and will reimburse the CPEX
Indemnitees for (i) all Bentley Taxes and (ii) all Taxes, Liabilities and related losses arising
out of, based upon or relating or attributable to any breach of or inaccuracy in any
representation, covenant or obligation of any member of the Bentley Group under this Agreement.




          (b) CPEX shall indemnify and hold harmless Bentley, each member of the Bentley Group and their
respective directors, officers and employees (collectively, the “Bentley Indemnitees”) from
and against, and will reimburse the Bentley Indemnitees for (i) all CPEX Taxes and (ii) all Taxes,
Liabilities and related losses arising out of, based upon or relating or attributable to any breach
of or inaccuracy in any representation, covenant or obligation of any member of the CPEX Group
under this Agreement.




     4.02 NOTICE. The Parties shall give each other prompt written notice of any payment that may
be due to the provider of such notice under this Agreement.



     4.03 TREATMENT OF PAYMENTS. The Parties agree that any payment made between the Parties
pursuant to this Agreement or any other Ancillary Agreement with respect to a Pre-Distribution
Period or as a result of an event or action occurring in a Pre-Distribution Period shall be
treated, to the extent permitted by law, for all Tax purposes as a nontaxable payment (i.e., a
distribution or a capital contribution) made immediately prior to the Distribution.



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ARTICLE V.




TAX CONTESTS




     5.01 NOTICE. Bentley shall promptly notify CPEX in writing upon receipt by Bentley or any
member of the Bentley Group of a written communication from any Governmental Authority with respect
to any pending or threatened audit, dispute, suit, action, proposed assessment or other proceeding
(a “Tax Contest”) concerning any Taxes for which CPEX may be liable under this Agreement.
CPEX shall promptly notify Bentley in writing upon receipt by CPEX or any member of the CPEX Group
of a written communication from any Governmental Authority with respect to any Tax Contest
concerning any Taxes for which Bentley may be liable under this Agreement.



     5.02 CONTROL OF CONTESTS BY BENTLEY. Bentley shall have the sole responsibility and control
over the handling of any Tax Contest, including the exclusive right to communicate with agents of
the Governmental Authority and to control, resolve, settle or agree to any deficiency, claim or
adjustment proposed, asserted or assessed in connection with or as a result of any such Tax
Contest, involving (i) any Bentley Filed Tax Return, or (ii) the Contribution or any transaction
associated therewith as described in the Separation Agreement. Subject to Bentley’s control right,
upon request by CPEX, CPEX shall, at CPEX’s expense, be allowed to participate in the handling of
any such Tax Contest with respect to any item that may affect the liability of CPEX or any member
of the CPEX Group under this Agreement or that relates to the Contribution Tax Treatment, and
Bentley shall not settle any such Tax Contest without the consent of CPEX, which consent shall not
be unreasonably withheld, conditioned or delayed. Notwithstanding anything else to the contrary
contained herein, in the case of any such Tax Contest relating to the Contribution Tax Treatment,
absent a settlement of such Tax Contest pursuant to the preceding sentence, Bentley shall be
required to exhaust, at CPEX’s expense, all administrative remedies available with respect to such
Tax Contest.



     5.03 CONTROL OF CONTESTS BY CPEX. CPEX shall have the full responsibility and control over
the handling of any Tax Contest, including the exclusive right to communicate with agents of the
Governmental Authority and to control, resolve, settle or agree to any deficiency, claim or
adjustment proposed, asserted or assessed in connection with or as a result of any such Tax
Contest, involving any CPEX Filed Tax Return. Subject to CPEX’s control right, upon request by
Bentley, Bentley shall, at Bentley’s expense, be allowed to participate in the handling of any such
Tax Contest with respect to any item that may affect the liability of Bentley or any member of the
Bentley Group under this Agreement.



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ARTICLE VI.




COOPERATION




     6.01 GENERAL. Each Party shall fully cooperate, and shall cause all members of such Party’s
Group to fully cooperate, with the other Party in connection with the preparation and filing of any
Tax Return or the conduct of any Tax Contest (including, where appropriate or necessary, providing
a power of attorney) concerning any issues or any other matter contemplated under this Agreement.
Each Party shall make its employees and facilities available on a mutually convenient basis to
facilitate such cooperation.



     6.02 CONSISTENT TREATMENT. Unless and until there has been a Final Determination to the
contrary, each Party agrees not to take any position on any Tax Return, in connection with any Tax
Contest or otherwise that is inconsistent with (a) the allocation of Taxes between the Bentley
Group and the CPEX Group as set forth in this Agreement or (b) the Contribution Tax Treatment and
the Distribution Tax Treatment.



ARTICLE VII.




RETENTION OF RECORDS; ACCESS




     7.01 RETENTION OF RECORDS; ACCESS. For so long as the contents thereof may become material in
the administration of any matter under applicable Tax law, but in any event until the later of (i)
the expiration of any applicable statute of limitation and (ii) seven years after the Distribution
Date, the Parties shall (a) retain records, documents, accounting data and other information
(including computer data) necessary for the preparation and filing of all Tax Returns in respect of
Taxes of any member of either the Bentley Group or the CPEX Group for any Pre-Distribution Period
or any Post-Distribution Period or for any Tax Contests relating to such Tax Returns, and (b) give
to the other Party reasonable access to such records, documents, accounting data and other
information (including computer data) and to its personnel (ensuring their cooperation) and
premises, for the purpose of the review or audit of such Tax Returns to the extent relevant to an
obligation or liability of a Party under this Agreement or for purposes of the preparation or
filing of any such Tax Return, the conduct of any Tax Contest or any other matter reasonably and in
good faith related to the Tax affairs of the requesting Party. At any time after the Distribution
Date that a Party proposes to destroy such material or information, it shall first notify the other
Party in writing and the other Party shall be entitled to receive such materials or information
proposed to be destroyed.



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ARTICLE VIII.




DISPUTE RESOLUTION




     8.01 DISPUTE RESOLUTION. The Parties shall attempt in good faith to resolve any disagreement
arising under this Agreement, including any dispute in connection with a claim by a third party (a
“Dispute”). Either Party may give the other Party written notice of any Dispute not
resolved in the normal course of business. If such a Dispute is not resolved within sixty (60)
days following the date on which one Party gives such notice, the Parties shall jointly retain a
nationally recognized law or accounting firm, reasonably acceptable to the Parties (the “Tax
Advisor”), to act as an arbitrator in order to resolve the Dispute. The Tax Advisor’s
determination as to any Dispute shall be made in accordance with the terms of this Agreement and
shall be final and binding on the Parties and not subject to collateral attack for any reason
(other than manifest error). All fees and expenses of the Tax Advisor shall be shared equally by
Bentley, on the one hand, and CPEX, on the other hand.



ARTICLE IX.




MISCELLANEOUS PROVISIONS




     9.01 GOVERNING LAW. This Agreement, except as expressly provided herein, shall be governed by
and construed and interpreted in accordance with the laws of the State of Delaware, irrespective of
the choice of laws principles of the State of Delaware as to all matters, including matters of
validity, construction, effect, enforceability, performance and remedies.



     9.02 APPLICATION TO PRESENT AND FUTURE SUBSIDIARIES. This Agreement is being entered into by
Bentley and CPEX on behalf of themselves and the members of their respective Groups. This
Agreement shall constitute a direct obligation of each such entity. Articles III and VI of this
Agreement shall be deemed to have been readopted and affirmed on behalf of any entity that becomes
a Subsidiary of Bentley or CPEX in the future.



     9.03 FURTHER ASSURANCES. Subject to the provisions hereof, the Parties hereto shall make,
execute, acknowledge and deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby.



     9.04 SURVIVAL. Notwithstanding any other provision of this Agreement to the contrary, all
representations, covenants and obligations contained in this Agreement shall survive until the
expiration of the applicable statute of limitations with respect to any such matter (including
extensions thereof).



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     9.05 ADDRESSES AND NOTICES. All notices, consents, requests, instructions, approvals,
statements, reports and other communications provided for herein shall be in writing and shall be
deemed to be duly given when (a) delivered in person or (b) deposited in the United States mail or
private express mail, postage prepaid, addressed as follows:



     If to Bentley:


Bentley Pharmaceuticals, Inc.

Bentley Park, 2 Holland Way

Exeter, New Hampshire 03833

Attn: James R. Murphy




     If to CPEX:


CPEX Pharmaceuticals, Inc.

Bentley Park, 2 Holland Way

Exeter, New Hampshire 03833

Attn: John A. Sedor




          Either Party may, by notice to the other Party, change the address to which such notices are
to be given. Notice delivered personally shall be deemed delivered when received by the recipient.
Notice given by mail as set out above shall be deemed delivered five calendar days after the date
the same is mailed.




     9.06 BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the
Parties and their successors and assigns.



     9.07 WAIVERS OF DEFAULT. The failure of either Party to require strict performance by the
other Party of any provision in this Agreement, or to exercise any right or remedy under this
Agreement will not waive or diminish such Party’s right to demand strict performance or exercise
thereafter of that or any other provision, right or remedy hereof.



     9.08 INVALIDITY OF PROVISIONS. If any provision of this Agreement or the application thereof
to any Person or circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application of such provision to
Persons or circumstances or in jurisdictions other than those as to which it has been held invalid
or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, so long as the economic or legal substance of the transactions contemplated
hereby or thereby, as the case may be, is not affected in any manner adverse to any Party. Upon
such determination, the Parties shall negotiate in good



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faith in an effort to agree upon such a suitable and equitable provision to affect the
original intent of the Parties.




     9.09 COMPLETE AGREEMENT. This Agreement contains the entire agreement between the Parties
pertaining to the subject matter of this Agreement and supersedes all prior agreements,
negotiations, discussions, writings, understanding, commitments and conversations pertaining
thereto and there are no agreements or understandings between the Parties other than those set
forth or referred to in this Agreement. In the event of any inconsistency between this Agreement
and the Separation Agreement or any other agreements relating to the transactions contemplated by
the Separation Agreement, the provisions of this Agreement shall control.



     9.10 CONSTRUCTION. The language in all parts of this Agreement shall in all cases be
construed according to its fair meaning and shall not be strictly construed for or against any
Party.



     9.11 NO DOUBLE RECOVERY. No provision of this Agreement shall be construed to provide an
indemnity or other recovery for any costs, damages or other amounts for which the damaged Party has
been fully compensated under any other provision of this Agreement or under any other agreement or
action at law or equity. Unless expressly required in this Agreement, a Party shall not be
required to exhaust all remedies available under other agreements or at law or equity before
recovering under the remedies provided in this Agreement.



     9.12 SETOFF. All payments to be made by any Party under this Agreement may be netted against
payments due to such Party under this Agreement, but otherwise shall be made without setoff,
counterclaim or withholding, all of which are hereby expressly waived.



     9.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which
shall be considered one and the same agreement, and shall become effective when each counterpart
has been signed by each of the Parties and delivered to the other Party.



     9.14 NO THIRD PARTY RIGHTS. This Agreement is only intended to allocate the responsibility
for certain Taxes between Bentley and CPEX and to address the other Tax matters stated herein.
Nothing in this Agreement, express or implied, is intended or shall confer any right, benefit,
claim or remedy of any nature whatsoever under or by reason of this Agreement upon any member of a
Party’s group or Person other than Bentley and CPEX. Bentley and CPEX acknowledge and agree that
the respective rights of the Bentley Indemnitees and the CPEX Indemnitees expressly provided under
this Agreement may only be enforced by Bentley and CPEX, respectively.



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     9.15 SEPARATION AGREEMENT. To the extent not inconsistent with any specific term of this
Agreement, the provisions of the Separation Agreement shall apply in relevant part to this
Agreement, including Sections 11.1 (Termination By Mutual Consent), 12.9 (Headings), 12.12
(Specific Performance), 12.13 (Amendments) and 12.14 (Waiver of Jury Trial).



[Signature Page Follows]




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     IN WITNESS WHEREOF, the Parties have caused this Tax Sharing Agreement to be executed by their
duly authorized representatives as of the day and year first above written.



	 	 	 	 	 
	 	BENTLEY PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ James R. Murphy 	 
	 	 	Name:  	James R. Murphy 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	CPEX PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/
John A. Sedor 	 
	 	 	Name:  	John A. Sedor 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 




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