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Exhibit 10.3    
    


  



  
 LICENSE AGREEMENT



BETWEEN



ANDRX LABS, LLC

ANDRX LABORATORIES (NJ), INC.

ANDRX PHARMACEUTICALS, INC.

AND

ANDRX EU LTD



(COLLECTIVELY, THE LICENSOR)



AND



FIRST HORIZON PHARMACEUTICAL CORPORATION



(THE LICENSEE)  








 
  
 

    LICENSE AGREEMENT    
    


        This License Agreement ("Agreement") is effective as of March     , 2005 by and between  ANDRX LABS, LLC, a Delaware limited liability company, ANDRX LABORATORIES (NJ), INC. a Delaware
corporation, ANDRX PHARMACEUTICALS, INC., a Florida corporation, and ANDRX EU, LTD., a
United Kingdom company, (hereinafter referred to collectively as "LICENSOR"), and FIRST HORIZON PHARMACEUTICAL
CORPORATION, a Delaware corporation (hereinafter "LICENSEE"). 


        WHEREAS,
LICENSOR is the owner of the entire right, title, and interest in and to the Licensed Patents and Technical Information (collectively, the "Intellectual
Property") relating to certain pharmaceutical products branded "Altoprev" and
"Fortamet"; 


        WHEREAS,
LICENSOR and LICENSEE are parties to that certain Agreement to License and Purchase, dated March 2, 2005, which, among other things, requires the parties to enter into
and perform under this Agreement (the "Purchase Agreement"); 


        WHEREAS,
LICENSOR and LICENSEE are parties to that certain Manufacturing Supply Agreement, dated the date hereof (the "MSA"); 


        WHEREAS,
Fortamet Products and Altoprev Products shall have the meanings set forth in the Purchase Agreement; 



        WHEREAS,
LICENSEE desires to obtain from LICENSOR, and LICENSOR desires to grant to LICENSEE, an exclusive (solely for the Licensed Field described below) license to the Products and the
related Intellectual Property as further described herein. 


        NOW,
THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows: 


 
 

ARTICLE I—DEFINITIONS    
    


        For the purposes of this Agreement, the following terms have the meanings set forth below: 



        1.01 "Intellectual Property" is defined in the recitals. 


        1.02 "Licensed Field" means the applicable field of use described in Exhibit A. Without limitation, the Licensed Field
does not include the fields of use designated in Exhibit B (the "Excluded Fields"). 


        1.03 "Licensed Products" means the Fortamet Products and Altoprev Products. 



        1.04 "Licensed Patents" means all domestic or foreign patents and patent applications listed in the attached
Exhibit C, and any continuations, divisions, reexaminations, reissues and extensions thereof and foreign patent applications claiming priority therefrom. 


        1.05 "Purchase Agreement" is defined in the recitals. 


        1.06 "Technical Information" means the research and development information, unpatented inventions, know-how,
trade secrets, technical data and other information necessary for Licensee to market, distribute and sell the Licensed Products. 


 
 

ARTICLE II—GRANTS    
    


        2.01 Subject
to the terms and conditions set forth in this Agreement, LICENSOR grants to LICENSEE a fully paid, royalty-free, exclusive, worldwide,
sublicenseable and assignable license under and to the Intellectual Property to market, distribute, sell, offer to sell, manufacture (nonexclusive and subject to the terms and conditions of the MSA),
import or have imported Licensed Products within the Licensed Field. Notwithstanding anything to the contrary, no right to sell Licensed Products is 


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granted
in the Excluded Fields or for any other field outside of the Licensed Field. If LICENSEE sublicenses or assigns the license granted herein for the Product(s) and receive a lump sum payment or
any other form of consideration (the "Assignment Consideration"), then LICENSOR shall be entitled to receive its Royalties (as defined in the MSA) on the Assignment Consideration which shall be deemed
Net Sales (as defined in the Purchase Agreement) for purposes of calculating Royalties. LICENSOR shall also be entitled to Royalties on Net Sales of the assignee or sublicense subject to the terms and
conditions set forth in the Purchase Agreement. 


        2.02 No
license, immunity or other right is granted under this Agreement, either directly or by implication, estoppel, or otherwise other than under the Licensed Patents or
Technical Information 


 
 

ARTICLE III—INFRINGEMENT AND MARKING    
    



        3.01 LICENSOR
shall not have any obligation hereunder to institute any action or suit against third parties for infringement of any Intellectual Property or to defend any
action or suit brought by a third party that challenges or concerns the validity of the Intellectual Property. If LICENSOR receives notice that a third-party has filed an Abbreviated New Drug
Application (an "ANDA") with the Food and Drug Administration for either Product with a certification relating to either of the Products under Section 505(b)(2)(A)(iv) ("Certification")
of the Federal Food and Drug and Cosmetic Act ("FFDC Act"), as amended, then to the extent legally permitted, LICENSEE shall have the right, in its discretion, to institute infringement and other
actions relating to the Intellectual Property against such third party, including rights under the FFDC Act (an "Infringement Claim"). The parties shall provide each other with copies and
correspondence relating to any litigation involving the Licensed Patents and any Certifications or ANDAs of which either party receives notice. If LICENSOR is legally required to join in litigation
with LICENSEE in order to enable LICENSEE to pursue an Infringement Claim, LICENSOR shall reasonably consider LICENSEE'S request to join in such action. LICENSOR would generally agree to join such
action if LICENSOR, in its reasonable discretion, determines that such action does not lack merit. Any such action brought by the LICENSEE shall be at LICENSEE'S sole cost and expense (whether or not
LICENSOR participates). Subject to Article 10 of the Purchase Agreement, LICENSEE shall indemnify and hold harmless LICENSOR for any and all damages, losses, costs and expenses (including
attorneys' fees) incurred, directly or indirectly, by LICENSEE resulting from any such action. The parties will reasonably cooperate in connection with any suit, claim or proceeding, and LICENSEE
shall consult with LICENSOR (and keep LICENSOR informed as to the status) with respect to any action instituted by LICENSEE pursuant to this Article III. LICENSEE shall be entitled to receive
any damages or settlement proceeds resulting from any Infringement Claim instituted by LICENSEE, provided that, subject to Section 3.4.1 and Section 3.4.2 of the Purchase Agreement, all
such damages or proceeds shall be deemed Net Sales for purposes of the Purchase Agreement for which a Royalty is payable thereunder. 


        3.02 Each
party shall notify the other party within five (5) business days if: (i) either party believes in good faith that a third party's product may
infringe the Intellectual Property; (ii) any third party alleges that the Licensed Products infringe a third party's intellectual property (and provide copies of all pleadings, if any); or
(iii) either party receives notice that a third party has filed a Certification for either Product. 


        3.03 LICENSEE
agrees to mark all Licensed Products sold by it under the license granted with the word "Patent" or "Patents" and at least the number or numbers of the patent
or patents applicable to each of the Licensed Products and included on the Licensed Products on the date hereof. 


 
 

ARTICLE IV—REPRESENTATIONS AND WARRANTIES    
    


        4.01 LICENSOR
represents and warrants that it has the corporate right and authority to grant to grant the rights and licenses described herein. 


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        4.02 This
Agreement is entered into pursuant to the Purchase Agreement. No representations or warranties are being made with respect to the Intellectual Property other than
those specifically set forth in the Purchase Agreement, subject to all limitations described therein. Licensee's sole remedies with respect to any breach of representation or warranty relating to
Intellectual Property are those provided in the Purchase Agreement. 


        4.03 NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO OR ANY BENEFICIARY HEREOF FOR ANY LOSS OF
PROFITS, DIMINUTION IN VALUE, OR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF OR
OTHERWISE AND WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEPT AND TO THE EXTENT THAT ANY SUCH DAMAGES SHALL HAVE RESULTED FROM THE WILLFUL MISCONDUCT OF SUCH
PARTY.


 
 

ARTICLE V—TERMINATION    
    


        5.01 Unless
previously terminated in accordance with Paragraph 5.03 hereof, the license granted herein with respect to the Licensed Patents shall continue in full
force until the expiration of the last-to-expire patent included in the Licensed Patents. 



        5.02 Unless
previously terminated in accordance with Paragraph 5.03 hereof, the license granted herein with respect to the Technical Information shall be perpetual. 


        5.03 LICENSEE
may terminate this Agreement by delivering written notice to LICENSOR sixty (60) days prior to such termination. After such termination, LICENSEE shall
have no further rights under Licensed Patents or Technical Information. Termination pursuant to this Paragraph 5.03 shall relieve the parties of all further duties and obligations. 


 
 

ARTICLE VI—ADDRESSES    
    


        6.01 Unless
otherwise specified in writing, the mailing addresses of the parties hereto are as follows: 



LICENSOR:



Andrx
Corporation

8151 Peters Road, 4th Floor

Plantation, Florida 33324

Attn: Scott Lodin, Esq.

Executive Vice President and General Counsel 


with
copies to: 


McDermott
Will & Emery LLP

227 West Monroe Street

Chicago, Illinois 60606

Attention: Scott Williams

Facsimile Number: (312) 984-7700 


LICENSEE:



First
Horizon Pharmaceutical Corporation

6195 Shiloh Road

Alpharetta, Georgia 30005

Attention: Leslie Zacks, Esq

VP of Legal and Administration

Facsimile Number: (678) 992-1043 



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with
copies to: 


Hunton &
Williams LLP

Attn: W. Tinley Anderson, III

Bank of America Plaza, Ste. 4100

600 Peachtree Street, NE

Atlanta, Georgia 30308

Facsimile Number: (404) 888-4190 




        Notices
hereunder shall be deemed to have been duly given and served if sent by reputable overnight courier or certified U.S. mail, and addressed to the intended recipient as set forth
above, or at such other address as it may from time to time designate in writing to the other party. Any party may send any notice hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, messenger service, U.S. mail, or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving
the other party notice in the manner herein set forth. 


 
 

ARTICLE VII—MISCELLANEOUS    
    



        7.01 LICENSEE
and LICENSOR shall share evenly in the costs associated with the prosecution of any pending and issued Licensed Patents. LICENSOR shall have the right of first
refusal to prosecute any pending or issued Licensed Patent. The parties shall reasonably assist each other in connection with the prosecution of the Licensed Patents and shall consult regarding all
strategic decisions in connection with the prosecution of any pending or issued Licensed Patent. Each party will provide the other with adequate notice of its decision whether to prosecute a pending
or issued Licensed Patent. LICENSOR shall not take any action which would cause the Licensed Patents to become invalid or unenforceable. 



        7.02 This
Agreement embodies the entire understanding of the parties and there are no further or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof. 


        7.03 Waiver
of a breach of this Agreement or the failure of LICENSOR or LICENSEE to exercise any right under this Agreement shall in no event constitute a waiver as to any
future breach, whether similar or dissimilar in nature, or as to the exercise of any future right under this Agreement. 


        7.04 This
Agreement may be amended or modified only by a written instrument signed by the authorized representatives of the respective parties hereto. 



        7.05 The
titles of each Article in this Agreement are for the convenience of the parties and are not intended to modify the terms and conditions contained therein. 


        7.06 To
the extent that this License Agreement is inconsistent with the Purchasing Agreement or the MSA, the Purchasing Agreement or the MSA shall govern. 


        7.07 This
Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of New York, U.S.A., excluding any
choice of law rules which may direct the application of the laws of any other jurisdiction. Jurisdiction over any dispute arising hereunder shall be governed by the relevant provisions of the Purchase
Agreement. 


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        IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed in their respective names by their duly authorized representatives as of the date and year first
written above. 



	 	 	ANDRX LABS, LLC
	

 	
 	

By:	

/s/  ANGELO C. MALAHIAS      
 Name: Angelo C. Malahias

Title: Executive Vice President
	

 	
 	
ANDRX LABORATORIES (NJ), INC.
	

 	
 	

By:	

/s/  ANGELO C. MALAHIAS      
 Name: Angelo C. Malahias

Title: Executive Vice President
	

 	
 	
ANDRX PHARMACEUTICALS, INC.
	

 	
 	

By:	

/s/  ANGELO C. MALAHIAS      
 Name: Angelo C. Malahias

Title: Executive Vice President
	

 	
 	
ANDRX EU LTD
	

 	
 	

By:	

/s/  ANGELO C. MALAHIAS      
 Name: Angelo C. Malahias

Title: Director
	

 	
 	
FIRST HORIZON PHARMACEUTICAL CORPORATION
	

 	
 	

By:	

/s/  PATRICK FOURTEAU      
 Name: Patrick Fourteau

Title: President and Chief Executive Officer




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EXHIBIT A    
    


LICENSED FIELD  



Exercise
the licensed rights for the indications specified in the New Drug Application approved by the U.S. Food and Drug Administration relating to Licensed Products. 



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EXHIBIT B    
    


EXCLUDED FIELDS  


	1.
	generic
forms of Altoprev Products and Fortamet Products



	2.
	over
the counter (i.e. non-prescription) forms of Altoprev Products and Fortamet Products



	3.
	products
combining Fortamet with any glitazone, glitazaar or other insulin sensitizer



	4.
	the
administration of lovastatin sodium for the treatment or prevention of Alzheimer's disease or related APP processing disorders 


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EXHIBIT C    
    


LICENSED PATENTS  


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Exhibit 10.3


LICENSE AGREEMENT

ARTICLE I—DEFINITIONS

ARTICLE II—GRANTS

ARTICLE III—INFRINGEMENT AND MARKING

ARTICLE IV—REPRESENTATIONS AND WARRANTIES

ARTICLE V—TERMINATION

ARTICLE VI—ADDRESSES

ARTICLE VII—MISCELLANEOUS

EXHIBIT A

EXHIBIT B

EXHIBIT C