Exhibit
10.1


 


TRANSITION SERVICES AGREEMENT


 


THIS TRANSITION SERVICES AGREEMENT (this “Agreement”)
is entered into as of November 5, 2010 (the “Effective
Date”) by and between MEDA AB, a corporation organized under the
laws of Sweden (“MEDA”), and VIVUS, Inc.,
a corporation organized under the laws of Delaware (“VIVUS”).  MEDA and VIVUS may be referred to herein
individually as a “Party” or collectively as the
“Parties.”


 


RECITALS


 


WHEREAS, pursuant to an Asset Purchase Agreement, dated as
of October 1, 2010, by and among MEDA, VIVUS and Vivus Real Estate, LLC
(the “APA”), MEDA purchased certain
assets of VIVUS currently associated with the Business (as defined therein);
and


 


WHEREAS, to facilitate the orderly and effective separation
of the Business from VIVUS to MEDA, each Party has agreed to provide to the
other Party certain technology transfer and transition services.


 


NOW, THEREFORE, the Parties agree as follows:


 


1.                                      DEFINITIONS.  The following terms, when used herein with
initial capital letters, will have the meanings ascribed to such terms in this Article 1.  Capitalized terms not defined herein shall
have the meanings set forth in the APA.


 


1.1                               “Chargebacks” means those chargebacks
for Business Products sold by VIVUS prior to the Closing Date that constitute
Excluded Liabilities under the APA.


 


1.2                               “Facility” means the facility located
at 735 Airport Road and 745 Airport Road in Lakewood, New Jersey, or such other
location that MEDA shall notify VIVUS of in writing.


 


1.3                               “MEDA Services” means the services,
functions, and tasks of MEDA required to process and report Chargebacks and
Returns (as defined below).  If any
service, function, or responsibility not specifically described in this
Agreement is an inherent or necessary part of the performance of the MEDA
Services, it will be deemed included within the scope of the MEDA Services,
including, without limitation, those MEDA Services set forth in Schedule A.  For the avoidance of doubt, the MEDA Services
shall exclude all claims with respect to product liability, personal injury or
other third party claims for breach of warranty, in each case arising from the
Excluded Liabilities, which such claims shall be subject to Section 7.2 of
the APA.


 


1.4                               “Returns” means those returns of
Business Products sold by VIVUS prior to the Closing Date which constitute
Excluded Liabilities under the APA.


 


1.5                               “VIVUS  Services”
means those services, functions, and tasks of VIVUS required to effectuate a
transfer of the Business to MEDA which are set forth in Schedule A.  If any service, function, or responsibility
not specifically described in this Agreement is an inherent or necessary part
of the performance of the VIVUS Services, it will be deemed included within the
scope of the VIVUS Services.


 

















 


2.                                      SERVICES


 


2.1                               Provision
of VIVUS Services.


 


(a)                                  VIVUS will
provide, through the VIVUS Personnel, the VIVUS Services to MEDA for a period
of six (6) months after the Effective Date (the “VIVUS
Service Term”), subject to the reasonable availability of such
personnel.  VIVUS agrees to keep MEDA
reasonably informed with respect to its provision of the VIVUS Services and
provide MEDA with information pertaining to the VIVUS Services upon MEDA’s
reasonable request.  Except as otherwise
expressly provided in this Agreement, VIVUS will be responsible for providing
appropriate personnel, and other resources required for performance of, the
VIVUS Services.


 


(b)                                  During the
VIVUS Service Term, the Parties acknowledge and agree that VIVUS will have no
obligation to provide more than [***]* ([***]*) hours of VIVUS Services
per month as requested by MEDA.  Notwithstanding the limitation set forth
above, it is understood that VIVUS’ Service Manager (as defined in Section 6.1(a))
will be required to contribute the majority of such individual’s working hours
(not to exceed[***]* ([***]*)
hours per month) to providing the VIVUS Services during the initial [***]* ([***]*) days
of the VIVUS Service Term.


 


2.2                               Provision
of MEDA Services.  MEDA will
provide, through the MEDA Personnel, the MEDA Services during the term of this
Agreement, subject to the reasonable availability of such personnel.  MEDA agrees to keep VIVUS reasonably informed
with respect to its provision of the MEDA Services and provide VIVUS with
information pertaining to the MEDA Services upon VIVUS’ reasonable
request.  Except as otherwise expressly provided in this Agreement, MEDA will be
responsible for providing appropriate personnel, and other resources required
for performance of, the MEDA Services. 
Notwithstanding the above and subject to Section 4.1(b), any MEDA
Services following the VIVUS Service Term shall be conducted using standard
quotation and purchase order processes.


 


2.3                               General
Standards of Performance.  Each
Party will provide (and cause its designees to provide) the VIVUS Services or
MEDA Services, as applicable, with at least the same level of skill, quality,
care, timeliness, and cost-effectiveness as if such services, functions, and
tasks were performed for such Party’s own purposes.  At a minimum, each Party will perform (and
cause its designees to perform) the VIVUS Services or MEDA Services, as
applicable, in a timely and professional manner and in accordance with industry
standards for services of the type performed. 
Except as set forth in this Agreement, each Party understands


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


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and agrees that the other
Party shall provide the VIVUS Services or MEDA Services, as applicable, using
its existing assets and personnel, and shall not, except as otherwise agreed in
writing, be obligated to perform any service (a) that would require such
Party to acquire or use any other assets, equipment or software or employ
(whether as employees or contractors) any additional personnel or (b) to
the extent provision of such service materially interferes in the aggregate
with the operations of such Party’s business. 
Each Party will comply (and cause its Affiliates to comply) with all
applicable international, federal, state, and local laws and regulations, and
will obtain all applicable permits and licenses, in connection with its
obligations under this Agreement.


 


2.4                               Additional
Services.  If either
Party reasonably requests that the other Party perform additional services not
included within the scope of the VIVUS Services or MEDA Services, as
applicable, then the Parties will negotiate in good faith the inclusion of such
services under this Agreement.


 


3.                                      TRANSFER
OF DOCUMENTATION


 


3.1                               Transfer
of VIVUS Materials.  As soon as
practicable after the Effective Date, MEDA shall deliver to a location
specified by VIVUS, the information, documents, and other materials included
within the Excluded Assets which are located at the Facility, including,
without limitation, all such materials pertaining to avanafil and data with
respect to the stability thereof (collectively, the “VIVUS
Materials”).  For the avoidance of doubt, MEDA’s obligation
to transfer the VIVUS Materials to VIVUS according to the provisions of this Article 3
shall be at no cost to VIVUS.


 


3.2                               Cooperation
and Assistance by MEDA.  If, following the completion of the transfer of the VIVUS Materials in
accordance with Section 3.1 above, VIVUS identifies, or is otherwise aware
of, information, documents or other materials located at the Facility which
constitute VIVUS Materials, MEDA shall transfer such VIVUS Materials to VIVUS
promptly following VIVUS’ written request for such VIVUS Materials or allow
VIVUS access to the Facility to retrieve such VIVUS Materials, subject to the
confidentiality provisions set forth in Article 5 below.  The Parties anticipate that, in such case,
VIVUS shall notify MEDA’s Service Manager, who will coordinate either (a) the
transfer of the requested VIVUS Materials to VIVUS or (b) VIVUS’ access to
the Facility and any necessary computer systems as set forth in Section 3.3
below, in each case solely to recover such VIVUS Materials.


 


3.3                               Access
to Computer Systems.  Upon at
least one (1) business day prior written notice, VIVUS shall have the
right, during the Term, to access the Facility and any computer, software,
network, electronic files or electronic data storage systems therein if VIVUS
(or its designee) requires such access in order to retrieve any VIVUS Materials, subject to the confidentiality provisions set forth in Article 5
below.  VIVUS shall limit (and, as
applicable, cause its designees to limit) such access and use the foregoing
items solely to retrieve VIVUS Materials and shall not access or attempt to
access any computer, software, network, electronic files or electronic data
storage system, other than those specifically required to accomplish the
foregoing.  MEDA agrees to reasonably
cooperate (and cause its employees to reasonably cooperate) with VIVUS or its
designees with respect to such access.


 


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3.4                               Transfer
of MEDA Materials.  As soon as
practicable after the Effective Date, VIVUS shall deliver to a location
specified by MEDA, the information, documents, and other materials included
within the Business Assets which are located at VIVUS’ facilities or which are
otherwise in the possession or control of VIVUS (collectively, the “MEDA Materials”).  For the avoidance of doubt, MEDA’s obligation
to transfer the VIVUS Materials to VIVUS according to the provisions of this Article 3
shall be at no cost to VIVUS and shall be in addition to, and shall not
otherwise be deemed as limiting or diminishing in any manner, VIVUS’
obligations to transfer the Business Assets to MEDA in accordance with the APA.


 


3.5                               Cooperation
and Assistance by VIVUS.  If, following the completion of the transfer of the MEDA Materials in
accordance with the APA and Section 3.4 above, MEDA identifies, or is
otherwise aware of, information, documents or other materials located at VIVUS’
facilities which constitute MEDA Materials, VIVUS shall
transfer such MEDA Materials to MEDA promptly following MEDA’s written request
for such MEDA Materials or allow MEDA access to VIVUS’ facilities to retrieve such MEDA Materials, subject to the confidentiality provisions
set forth in Article 5 below.  The
Parties anticipate that, in such case, MEDA shall notify VIVUS’ Service
Manager, who will coordinate either (a) the transfer of the requested MEDA
Materials to MEDA or (b) MEDA’s access to the Facility solely to recover
such MEDA Materials.


 


4.                                      COMPENSATION


 


4.1                               Charges.


 


(a)                                  VIVUS
Services.  In
consideration for VIVUS’ performance of the VIVUS Services following the
sixtieth (60th) day of the
VIVUS Service Term, MEDA agrees to pay VIVUS the hourly service fees set forth
on Schedule B for time allocated by VIVUS Personnel in performing the
VIVUS Services, including associated travel time.  The hourly service fees set forth on Schedule
B shall be fixed until the end of the Term (as defined in Section 8.1).  All VIVUS Services performed on or before the
sixtieth (60th) day of the
VIVUS Service Term shall be at no cost to MEDA.


 


(b)                                  MEDA
Services.  In
consideration for MEDA’s performance of the MEDA Services following the
sixtieth (60th) day of the
VIVUS Service Term, VIVUS agrees to pay MEDA (i) for amounts incurred
(including with respect to payment adjustments) or paid by MEDA for third party
processing of Chargebacks and Returns and (ii) the hourly service fees set
forth on Schedule B for time allocated by MEDA Personnel in performing
the MEDA Services, including associated travel time.  The hourly service fees set forth on Schedule
B shall be fixed until the end of the Term. 
All MEDA Services performed on or before the sixtieth (60th) day of the VIVUS Service
Term shall be at no cost to VIVUS.


 


4.2                               Invoicing
and Payment to VIVUS.  VIVUS
will invoice MEDA monthly at the end of each month for the amount due by MEDA
under this Agreement for that month.  Each such invoice submitted by VIVUS will include
a statement setting forth time allocated by the VIVUS Personnel in performing
the VIVUS Services during such month and the corresponding amounts due to VIVUS
with respect thereto consistent with the fee schedule set forth on Schedule
B.  Payments for each invoice
will be due within forty-five (45) days after the paying Party’s receipt of the
invoice.


 


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4.3                               Invoicing
and Payment to MEDA.  Within
fifteen (15) days following MEDA’s payment to third parties or incurrence of
amounts with respect to Chargebacks or Returns, MEDA shall submit an invoice
therefor to VIVUS, along with all reasonable and necessary documentation
supporting such payment or incurrence of charges.  With respect to MEDA Services, MEDA will
invoice VIVUS monthly at the end of each month for the amount due by VIVUS
under this Agreement for that month.  Each such invoice submitted by MEDA will include
a statement setting forth time allocated by the MEDA Personnel in performing
the MEDA Services during such month and the corresponding amounts due to MEDA
with respect thereto consistent with the fee schedule set forth on Schedule
B.  Payments for each invoice
submitted pursuant to this Section 4.3 will be due within forty-five (45)
days after VIVUS’ receipt of the invoice.


 


5.                                      CONFIDENTIAL
INFORMATION


 


5.1                               MEDA
Confidential Information.  MEDA
may from time to time communicate to VIVUS, or VIVUS may otherwise retain or
gain access to, certain confidential business or technical information with
respect to the Business, MEDA’s operations, business plans or intellectual
property after the Effective Date (the “MEDA Confidential
Information”).  VIVUS
shall not disclose, or permit the disclosure of, any MEDA Confidential
Information to any third party without the express prior written consent of
MEDA, except as otherwise provided in this Article 5.  VIVUS shall use the MEDA Confidential
Information only for purposes of performing the VIVUS Services.  Without limiting the generality of the
foregoing, VIVUS shall limit the use and disclosure of the MEDA Confidential
Information to those of its employees who need such information to perform the
VIVUS Services, and VIVUS shall ensure that each employee who has access to the
MEDA Confidential Information complies with the obligations set forth above.


 


5.2                               VIVUS Confidential
Information.  VIVUS may
from time to time communicate to MEDA, or MEDA may otherwise gain access to,
certain confidential business or technical information with respect to VIVUS’
operations, business plans or intellectual property after the Effective Date
(the “VIVUS Confidential Information”).  MEDA shall not disclose, or permit the
disclosure of, any VIVUS Confidential Information to any third party without
the express prior written consent of VIVUS, except as otherwise provided in
this Article 5.  MEDA shall use the
VIVUS Confidential Information only for purposes of performing the MEDA
Services.  Without limiting the
generality of the foregoing, MEDA shall limit the use and disclosure of the
VIVUS Confidential Information to those of its employees who need such
information for the purposes of this Agreement, and MEDA shall ensure that each
employee who has access to the VIVUS Confidential Information complies with the
obligations set forth above.


 


5.3                               Confidentiality
Exceptions.  Notwithstanding
the foregoing, the VIVUS Confidential Information and the MEDA Confidential
Information shall not include information which the receiving Party can
establish (a) to have been publicly known prior to disclosure of such
information by the disclosing Party to the receiving Party, (b) to have
become publicly known, without fault on the part of the receiving Party, (c) to
already be in the possession of the receiving Party, or to come into the
possession of the receiving Party by a third party, without restriction on its
disclosure or use or (d) was developed independent of the Confidential
Information of the disclosing Party; provided, however, that nothing in this
Agreement shall be


 


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deemed as limiting or diminishing in any manner the
Parties’ confidentiality obligations under the APA.


 


5.4                               Permitted
Disclosures.  The
confidentiality obligations contained in this Article 5 shall not apply to
the extent that the receiving Party is required to disclose information by law,
order or regulation of a governmental agency or a court of competent
jurisdiction, provided the receiving Party shall provide written notice thereof
to the disclosing Party and sufficient opportunity to object to any such
disclosure or to request confidential treatment thereof.


 


6.                                      PERSONNEL


 


6.1                               Services
Managers.


 


(a)                                  For
VIVUS.  VIVUS will designate a “Services
Manager” as identified on Schedule C hereto, for its performance of the
VIVUS Services.  Such Services Manager
will devote a reasonable amount of time and effort to managing the VIVUS
Services, will serve as the initial point of contact to MEDA for matters
relating to the Services, and will have day-to-day authority for ensuring
performance of the Services in accordance with the terms of this
Agreement.  VIVUS may replace the
Services Manager by providing prior written notice to MEDA.


 


(b)                                  For
MEDA.  MEDA will designate a “Services
Manager” as identified on Schedule C hereto, for its performance of the
MEDA Services.  Such Services Manager
will devote a reasonable amount of time and effort to managing the MEDA
Services, will serve as the initial point of contact to VIVUS for matters
relating to the MEDA Services, and will have day-to-day authority for ensuring
performance of the MEDA Services in accordance with the terms of this
Agreement.  MEDA may replace the Services
Manager by providing prior written notice to VIVUS.


 


6.2                               Access
to Personnel.  Each Party
agrees to provide reasonable access to such Party’s personnel set forth in Schedule
B (the “Personnel”) for performance
of the VIVUS Services and MEDA Services in accordance with this Agreement.


 


6.3                               Payments
to Personnel.  Each Party
shall select, employ, pay, supervise and direct such Party’s Personnel.  Without limiting the generality of the
foregoing, each Party shall be solely responsible for the payment of all direct
and indirect compensation (including fringe benefits), worker’s compensation
insurance, employment taxes and all other liabilities relating to such Party’s
Personnel.


 


7.                                      INDEMNIFICATION


 


7.1                               Indemnification
of VIVUS.  Subject to Section 7.3
below, MEDA shall indemnify, defend and hold harmless VIVUS from and against
any and all liabilities, damages, settlements, claims, actions, suits,
penalties, fines, costs or expenses (including, without limitation, reasonable
attorneys’ fees and other expenses of litigation) incurred by VIVUS as a result
of a claim by a third party brought against VIVUS arising or resulting from (i) MEDA’s
material breach of this Agreement or (ii) the gross negligence or willful
misconduct of MEDA


 


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hereunder; except in each
case to the extent that VIVUS is obligated to indemnify, defend and hold MEDA
harmless for such claims under Section 7.2 below.


 


7.2                               Indemnification
of MEDA.  Subject to Section 7.3
below, VIVUS shall indemnify, defend and hold harmless MEDA from and against
any and all liabilities, damages, settlements, claims, actions, suits,
penalties, fines, costs or expenses (including, without limitation, reasonable
attorneys’ fees and other expenses of litigation) incurred by MEDA as a result
of a claim by a third party brought against MEDA arising or resulting from (i) VIVUS’
material breach of this Agreement or (ii) the gross negligence or willful
misconduct of VIVUS hereunder; except in each case to the extent that MEDA is
obligated to indemnify, defend and hold VIVUS harmless for such claims under
Section 7.1 above.


 


7.3                               Procedure.  A Party (the “Indemnitee”) that intends to claim
indemnification under this Article 7 shall:  (i) promptly notify the indemnifying
Party (the “Indemnitor”) in writing of
any claim, action, suit, or other proceeding brought by third parties in
respect of which the Indemnitee intends to claim such indemnification
hereunder; (ii) provide the Indemnitor sole control of the defense and/or
settlement thereof, and (iii) provide the Indemnitor, at the Indemnitor’s
request and expense, with reasonable assistance and full information with
respect thereto.  Indemnitor shall not
settle any claim, suit or proceeding subject to this Article 7 or
otherwise consent to an adverse judgment in such claim, suit or proceeding if
the same materially diminishes the rights or interests of the Indemnitee
without the express written consent of the Indemnitee.  Notwithstanding the foregoing, the indemnity
agreement in this Article 7 shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected
without the consent of the Indemnitor, to the extent such consent is not
withheld unreasonably or delayed. 
Notwithstanding anything herein to the contrary, the Indemntee shall
have the right to participate in any such claim, suit or proceeding with counsel
of its choosing at its own expense.


 


7.4                               Limitation
of Liability.  NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
INCIDENTAL DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS RELATING
TO THE SAME), ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER SUCH
CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF
AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE POSSIBILITY OR
LIKELIHOOD OF SAME.  IN NO EVENT SHALL
THE AGGREGATE LIABILITY OF EITHER PARTY EXCEED THE TOTAL AMOUNT ACTUALLY PAID
TO SUCH PARTY BY OR ON BEHALF OF THE OTHER PARTY IN CONNECTION WITH THE
SERVICES PROVIDED HEREUNDER.


 


8.                                      TERM
AND TERMINATION


 


8.1                               Term.  The term of this Agreement will commence on
the Effective Date and will continue for a period of two (2) years
thereafter (the “Term”).


 


8.2                               Termination
for Cause.  Each Party
may terminate this Agreement immediately, upon written notice specifying in
reasonable detail the material breach and the required cure, if the other Party
materially breaches any term of this Agreement and fails to cure


 


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such breach within fifteen
(15) days after receipt by the breaching Party of written notice from the
non-breaching Party describing such breach; provided, however,
that the Parties agree that a failure to pay an amount owed pursuant to Section 4
shall not qualify as a material breach if the disputing Party pays the
undisputed amounts owed in a timely fashion.


 


8.3                               Survival.  Termination of this Agreement shall not
relieve the Parties of any obligation accruing prior to such termination, and
the provisions of Sections 2.3, 3.1, 3.3, 4, 5, 7 and 9 shall survive any
such termination.


 


9.                                      GENERAL


 


9.1                               Relationship
Between the Parties.  The relationship
between the Parties established under this Agreement is that of independent
contractors and no Party shall be deemed an employee, agent, partner, or joint
venturer of or with the other.  Each
Party will be solely responsible for any employment-related taxes, insurance
premiums or other employment benefits respecting its personnel’s performance of
services under this Agreement.  Each
Party agrees to grant to the other Party’s personnel reasonable access to
sites, systems and information as necessary for such Party to perform its
obligations hereunder.


 


9.2                               Subcontracting.  Each Party
may engage a subcontractor to perform all or any portion of its duties under
this Agreement provided that any such subcontractor agrees in writing to be
bound by confidentiality obligations similar to those applicable herein, and
provided further that the performing Party remains responsible for the
performance of such subcontractor.


 


9.3                               Entire
Agreement; Amendment.  This
Agreement, together with the APA, constitute the entire agreement of the
Parties with respect to the subject matter hereof and thereof and supersede any
and all prior understandings, written or oral, between the Parties with regard
to the subject matter hereof and thereof. 
In the event of a conflict between this Agreement and any of the
schedules attached hereto, the terms set forth on the schedule shall
govern.  This Agreement may be amended,
modified or waived only by an instrument in writing signed by an authorized
representative of each of the Parties hereto.


 


9.4                               Further
Assurances.  Each Party
agrees to take such actions and execute such documents as are reasonably
requested by the other Party (including providing executed documents in such
recordable form as is deemed required or necessary by the other Party) to
effect the purposes of this Agreement.


 


9.5                               Notices.  Any notice or other communication required or
permitted to be delivered to any Party under this Agreement must be in writing
and will be deemed properly delivered, given and received (a) when
delivered by hand, or (b) two (2) business days after sent by
registered mail, by courier or express delivery service or by facsimile, in
each case to the address or facsimile telephone number set forth beneath the
name of such Party below (or to such other address or facsimile telephone
number as such Party will have specified in a written notice given to the other
Parties hereto):


 


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if
to VIVUS:


VIVUS, Inc.


1172
Castro Street


Mountain
View, CA 94040


U.S.A.


Attention:  Guy Marsh


Facsimile:  (650) 934-5389


 


with a copy to:


 


Wilson
Sonsini Goodrich & Rosati, Professional Corporation


12235
El Camino Real, Suite 200


San Diego, California 92130


UNITED STATES


Attention: Martin J. Waters


Telecopy: 
(858) 350-2399


 


if
to MEDA:


MEDA AB


Pipers väg 2A


SE-170 09


Solna


SWEDEN


Attention: Anders Lönner, CEO


Telecopy:  +46 8 630 1919


 


with a copy to:


 


Wiggin
and Dana LLP


400 Atlantic Street


Stamford, Connecticut 06901


UNITED STATES


Attention: James F. Farrington, Jr.


Telecopy: +1 203-363-7676


 


9.6                               Disclaimer. THE VIVUS
SERVICES AND THE MEDA SERVICES, AND ANY OTHER SERVICES, FACILITIES OR EQUIPMENT
PROVIDED UNDER THIS AGREEMENT, ARE PROVIDED “AS IS.”  EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES (AND EACH PARTY EXPRESSLY DISCLAIMS) ANY
REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER.


 


9.7                               Force Majeure.  Each Party
will be excused for any failure or delay in performing any of its obligations
under this Agreement, other than the obligations to make payments, if such
failure or delay is caused by any act of God or the public enemy, any accident,
explosion, fire, storm, earthquake, flood, or any other circumstance or event
beyond the reasonable control of such Party.


 


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9.8                               Headings.  Paragraph and Section headings
are inserted for convenience of reference only and do not form a part of this
Agreement.


 


9.9                               Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.


 


9.10                        Jurisdiction
and Venue.  Each of the
Parties hereto irrevocably consents to the exclusive jurisdiction and venue of
any court within located in the Southern District of the State of New York, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein.


 


9.11                        Binding
Effect; Assignment.  This Agreement
shall not be assignable by a Party without the prior written permission of the
other Party except that a Party may assign this Agreement without consent as
part of a change of control, corporate reorganization, consolidation, merger or
sale or all or substantially all of its assets. 
Any permitted assignee shall agree to perform the obligations of the
assigning Party, and this Agreement shall inure to the benefit of and be
binding upon any permitted assignee. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon the Parties hereto and their
respective legal representatives and successors in interest.  Nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.


 


9.12                        Waiver.  Waiver of any term or
condition of this Agreement by any Party hereto shall be effective if in
writing and shall not be construed as a waiver of any subsequent breach or
failure of the same term or condition or any other terms or conditions of this
Agreement.  No waiver shall be effective
unless it is in writing signed by an authorized representative of the waiving
Party.


 


9.13                        Severability.  In the event that any
provision of this Agreement or the application thereof, becomes or is declared
by a court of competent jurisdiction to be illegal, void or unenforceable, the
remainder of this Agreement will continue in full force and effect and the
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the Parties hereto.  The Parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such void or unenforceable provision.


 


9.14                        No
Third Party Beneficiaries. 
Nothing in this Agreement shall confer any rights or liabilities upon
any third party, except as expressly provided hereunder.


 


9.15                        Specific
Performance.  The Parties
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
Parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.


 


9.16                        Counterparts.  This Agreement may be executed and delivered
(including by facsimile or other electronic transmission) in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more 


 


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counterparts have been
signed by each of the Parties and delivered to the other Party, it being
understood that all Parties need not sign the same counterpart.


 


[Remainder of page intentionally left blank.
Signature page follows.]


 


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The
parties to this Agreement have caused this Agreement to be executed and
delivered as of the Effective Date.


 


 


	
  MEDA AB

  	
   

  	
  VIVUS,
  INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anders Larnholt

  	
   

  	
  By:

  	
  /s/
  Timothy E. Morris

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Anders Larnholt

  	
   

  	
  Name:

  	
  Timothy
  E. Morris

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  VP Corporate Dev.

  	
   

  	
  Title:

  	
  SVP
  Finance, Chief Financial Officer

  



 


 


[Signature Page to Transition Services Agreement]


 


12

















 


Schedule A


 


Services


 


Manufacturing Support Services:


 


VIVUS
will provide support for the manufacture and supply of MUSETM as reasonably
requested by MEDA, including, but not limited to, the transfer of all knowledge
and documents from VIVUS’ Mountain View, California office to the Facility or,
if requested by MEDA in writing, to MEDA’s Somerset, New Jersey facility.


 


Regulatory Services:


 


VIVUS
will provide support for the regulatory processes related to MUSETM as
reasonably requested by MEDA, including, but not limited to: (a) the assembly
of all the registration documentation and the transfer of the NDA to MEDA
(which such transfer shall be done at no cost or expense to MEDA); and (b)
causing [***]* (in [***]* capacity as consultant under the Master
Services Agreement dated as of October 3, 2007 between VIVUS and Regulatory Professional,
Inc., as amended and supplemented from time to time) to be available to provide
regulatory consulting services to MEDA for a period of time not to exceed [***]* ([***]*) days following the Closing
Date.


 


Manager
and Executive Services:


 


VIVUS
shall make the VIVUS Service Manager available for [***]* ([***]*) days after the Effective
Date to ensure the smooth integration of the operations and that MEDA receives
the support required in connection therewith. 
MEDA shall make the MEDA Service Manager available for [***]* ([***]*) days after the Effective
Date to ensure the smooth integration of the operations and that VIVUS receives
the support required in connection therewith.


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


13

















 


VIVUS
shall use reasonable commercial efforts to have [***]* available to assist MEDA with integration and
staffing issues for the initial [***]* ([***]*) days of the VIVUS Service
Term.


 


Sales
and Marketing Support:


 


VIVUS
will use best efforts to transfer the marketing knowledge held by VIVUS to MEDA
and to facilitate the processing of new marketing materials through MEDA’s PCR
system and deployed to MEDA’s sales representatives.  The VIVUS Service Manager shall be made
available at either the Facility or MEDA’s Somerset, New Jersey facility upon
the reasonable request of MEDA.  In
addition, the VIVUS Manager may be required to attend field visits to
physicians upon the reasonable request of MEDA.


 


Telephone
System:


 


VIVUS
will make available to MEDA, for a period of thirty (30) days after the
Effective Date, all hardware and software related to VIVUS’ corporate-wide
telephone system currently in place at the Premises, free of charge to MEDA
(other than actual charges incurred by VIVUS for calls made by or on behalf of
MEDA during such period).


 


HR Services:


 


MEDA
shall cause certain of the MEDA Personnel who are Transferred Employees to
provide the following human resources (“HR”)
services:


 


(a)
assist VIVUS with its termination of all former VIVUS employees from VIVUS
benefits plans within thirty (30) days following the Closing;


 


(b)
assist VIVUS with its handling of all aspects of terminated employees’ COBRA
benefits within thirty (30) days following the Closing;


 


(c)
transfer all HR records relating to non-Transferred Employees to VIVUS’
Mountain View, California offices within thirty (30) days following the
Closing;


 


(d)
assist VIVUS with the transition of HR functions to VIVUS’ Mountain View,
California offices; and


 


(e)
assist VIVUS with its compliance with internal controls mandated by The
Sarbanes-Oxley Act of 2002 (“SOX”) for a
period of thirty (30) days following the Closing.


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


14

















 


Finance and Accounting Services:


 


MEDA shall cause certain of the MEDA Personnel who
are Transferred Employees to provide the following finance and accounting
services, including, without limitation, [***]* (to the extent still employed by MEDA):


 


(a) assist VIVUS with its closing of the VIVUS
books;


 


(b)
finalize the books for MUSE within ten (10) business days after the Closing;


 


(c)
assist VIVUS with its preparation of reconciliations and account analyses;


 


(d)
assist VIVUS with its maintenance of all SOX controls relating to finalizing
MUSE books;


 


(e)
assist VIVUS with its compliance with internal controls mandated by SOX for a
period of thirty (30) days following the Closing;


 


(f)
assist VIVUS with its quarterly auditors’ review (October/November 2010);


 


(g)
assist VIVUS with its year-end audit (January/February 2011);


 


(h)
process accounts payable invoices received after the Closing and forward to
VIVUS for payment for the thirty (30) day period after the Closing;


 


(i)
calculate final royalty payments incurred for sales occurring prior to the
Closing;


 


(j)
provide monthly reports on returns data by lot # and by year from SPS/Cord
until the end of the return window;


 


(k)
assist with the transfer of (i) the originals of all historical accounting
records, customer files and invoices and vendor files relating to (A)
pre-Closing periods, (B) the Excluded Assets, (C) the Excluded Liabilities and
(D) any non-Business Assets, including, without limitation, VIVUS’ general
corporate accounting materials, as soon as practicable following the Closing,
but no later than ninety (90) days following the Closing, and (ii) if requested
by VIVUS, copies of any pre-Closing accounting materials relating to the
Business Assets not covered by item (A) above, to VIVUS’ Mountain View,
California offices following the Closing;  provided, however, that VIVUS
shall, upon request by MEDA, assist MEDA in making copies of any materials that
relate to pre-Closing periods and the Business Assets;


 


(l)
assist VIVUS with its preparation of proforma financials for VIVUS’ SEC
quarterly and year-end reports within thirty (30) days following the Closing;
and


 


(m)
assist VIVUS with its preparation of VIVUS’ tax returns for the 2009 and 2010
tax years, as well as prior tax years to the extent an audit or assessment
requires the same, during calendar years 2010 and 2011.


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


15

















 


PAYROLL:


 


MEDA shall cause certain of the MEDA Personnel who
are Transferred Employees to provide the following payroll services:


 


(a)
assist VIVUS with its payroll processing for VIVUS employees for a period of
ninety (90) days following the Closing;


 


(b)
assist VIVUS with its ESPP refund processing for VIVUS employees for a period
of thirty (30) days following the Closing;


 


(c)
assist VIVUS with the transition of payroll functions to VIVUS’ Mountain View,
California offices on or before the end of calendar year 2010; and


 


(d)
assist VIVUS with the transfer of payroll records relating to non-Transferred
Employees to VIVUS’ Mountain View, California offices within thirty (30) days
of ceasing to process payroll for VIVUS’ employees.


 


INFORMATION
TECHNOLOGY:


 


MEDA
shall cause certain of the MEDA Personnel who are Transferred Employees to
provide the following information technology (“IT”)
services:


 


(a)
assist VIVUS with its transfer of Fourth Shift historical data, either
virtually or physically, to one or more new servers in VIVUS’ Mountain View,
California offices; following such transfer and following the Closing, assist
VIVUS in the destruction of any and all data on the old servers, to the extent
that such data does not relate to the Business Product;


 


(b)
provide VIVUS reasonable access to Pillar historical data;


 


(c)
assist VIVUS with its transition of the IT SOX controls to VIVUS’ Mountain
View, California offices; and


 


(d)
transfer the Finance Folders located on the servers at the Facility to a server
designated by VIVUS to the extent such folders relate exclusively to the
Excluded Assets (or transfer copies thereof to the extent they relate to the
Excluded Assets and the Business Assets).


 


Vivus shall cause certain of
the Vivus Personnel, including, without limitation, [***]* (to the extent still employed by Vivus), to
provide IT services as reasonably requested by MEDA and for a period of time
not to exceed sixty (60) days following the Closing Date.


 


GOVERNMENT
PRICE REPORTING


 


From
and after the Closing Date, MEDA will (a) calculate and/or collect government
pricing data relating to the Business Products as required by the reporting
requirements of applicable U.S. Governmental Entities, including under
applicable rules and regulations relating


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


16

















 


to
the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8 and implementing
regulations) and the Medicare program (42 U.S.C. § 1395w-3a and implementing
regulations), and (b) timely certify and report such data to the applicable
U.S. Governmental Entities, including the Center for Medicare and Medicaid
Services of the U.S. Department of Health and Human Services.  Should such U.S. Governmental Entities
require the inclusion of pricing data from sales of Business Products by VIVUS
with respect to a period ending on or prior to Closing, VIVUS will promptly
provide MEDA with such data, together with all reasonable support and a
certification of accuracy in form and substance reasonably satisfactory to
MEDA, and MEDA will continue to provide such reports for as long as required by
applicable Law.  For the avoidance of
doubt, nothing contained herein shall require MEDA to calculate, collect,
certify or report any information related to any products bearing VIVUS’
National Drug Code or labeler code other than the Business Products.


 


LABORATORY
& STABILITY SERVICES:


 


MEDA
shall cause certain of the MEDA Personnel who are Transferred Employees to
provide the following laboratory and stability testing services, including,
without limitation, [***]*, [***]* and [***]*(to the extent still
employed by MEDA):


 


(a)
Stability Program Management and Testing of Avanafil Clinical and Registration
Batches:  (i) MEDA shall have drafted
protocols for storage and test schedule, test product at defined time-points,
have trained QC analysts perform testing, and report results on CofA’s and
summary stability data tables; (ii) laboratory and stability testing services
shall be provided by MEDA until [***]* unless VIVUS desires to transfer such services
to a third party before such date; (iii) MEDA shall complete a GMP audit of the
stability program as part of the completion of the transition of the services
to a third party designated by VIVUS; (iv) all stability program documentation
and electronic files will need to be inventoried and transferred to VIVUS’
Mountain View, California offices or to a third party designated by VIVUS; and
(v) the stability sample inventory will need to be transferred to a third party
designated by VIVUS as part of transition closeout.


 


(b)
Avanafil Clinical Supply Returns:  (i)
these clinical trial returns shall include receipt, inspection, reconciliation
of tablet counts, documentation, and product disposal; (ii) these services will
be transferred within sixty (60) days following VIVUS’ designation of a third
party designee; and (iii) MEDA shall complete a GMP audit of all clinical
returns and transfer of all documentation to VIVUS’ Mountain View, California
offices on or before the completion of the transfer to VIVUS’ third party
designee.


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


17

















 


(c)
A protocol for testing transfer and qualification will be required and
acceptance criteria must be met prior to completion and transfer of the
stability program to the third party designated by VIVUS.


 


Pharmacovigilance:


 


VIVUS
shall continue to maintain the adverse event reporting processes, files and
information on the ClinTrace database for a period of sixty (60) days following
the Closing and thereafter assist with the transfer of the processes and files
to the Facility.  To this end, during the
period of these services MEDA shall allow VIVUS reasonable access to the
ClinTrace database, which currently resides on a server at the Facility, subject to the confidentiality provisions set forth in Article 5 of this
Agreement.


 


Medical:


 


VIVUS
shall assist in the transfer of all scripts, standard operating procedures,
standard questions and answers and reprint materials currently used by VIVUS
and VIVUS’ third party contractors to interact with patients and the medical
professionals treating patients.


 


18

















 


Schedule B


 


Personnel and Fees for Services


 


	
  VIVUS Personnel

  	
   

  	
  Hourly Rate*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  Rate as provided in MSA between VIVUS and Regulatory Professional,
  Inc.

  
	
   

  	
   

  	
  *Rate applies to travel
  time.

  



 


	
  MEDA Personnel

  	
   

  	
  Hourly Rate*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
  [***]*

  	
   

  	
  [***]*

  
	
   

  	
   

  	
  *Rate applies to travel
  time.

  



 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


19

















 


Schedule C


 


Service Managers


 


VIVUS
Service Manager:  [***]*


 


MEDA
Service Manager:  [***]*


 






* [***] Certain
information has been omitted and filed separately with the Commission. 
Confidential treatment has been requested with respect to the omitted portions.


 


20