**1.5 “Commercially Reasonable Efforts”**shall mean that degree of effort, expertise andresources which a person of ordinary skill, ability and experience in the matters addressed in thisAgreement would utilize and otherwise apply with respect to fulfilling the obligations assumedunder this Agreement.     **1.6 “Cost of Goods”**shall mean DPSI’s and Mylan’s (once Mylan, or a Mylan Affiliate, beginsmanufacturing the Product in accordance with this Agreement) direct costs (including out-of-pocketcosts and directly allocable internal manufacturing overheads) of manufacture, testing, validationand shipping of the Product to Mylan’s facilities, including DPSI’s and Mylan’s acquisition andshipping costs of API. Also, Cost of Goods shall include all labeling and packaging of componentsby Mylan. [**] When, and if applicable, the Cost of Goods shall be calculated and accrued inaccordance with U.S. Generally Accepted Accounting Principles. Cost of Goods shall not include anyallocation for idle plant or corporate overheads.     **1.7 “Commencement of Commercial Sales”**shall mean the first arms — length commercial sale ofthe Product by Mylan, its Affiliates, agents, or distributors to a Third Party.     **1.8**[**]     **1.9 “[**] Patents”**shall mean U.S. patents [**] or [**] and/or any continuation,continuation-in-part, division or re-issue of either of them.     **1.10**[**]     **1.11 “DPSI”**shall mean Dow Pharmaceutical Sciences, Inc.     **1.12 “Effective Date”**shall mean February 21, 2008.     **1.13 “FDA”**shall mean the United States Food and Drug Administration.     **1.14 “Force Majeure”**shall mean any circumstances reasonably beyond a Party’s controlincluding, without limitation, acts of God, civil disorders or commotions, acts of aggression,fire, explosions, floods, drought, war, sabotage, embargo, utility failures, failure of supply ofProduct to Mylan, failure to secure a supply agreement as required by Section 5.1, materialshortages, labor disturbances, strikes, a national emergency or appropriations of property andwhich occurrence prevents a Party from performing its obligations under this Agreement.     **1.15 “Indemnified Party”**shall have the meaning ascribed to it in Section 10.4.     **1.16 “Indemnifying Party”**shall have the meaning ascribed to it in Section 10.4.     **1.17 “JDC”**shall mean the Joint Development Committee described in Section 2.2.     **1.18 “Law”**shall mean any rule, regulation, statute, ordinance or other rule of law relevantto the manufacture, distribution and/or sale of any or all of the Product, or to any other matterscovered by this Agreement. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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     **1.19 “Legal Expenses”**shall mean the costs incurred by either Mylan or DPSI, or both of them,in connection with the defense of any claims asserted by a Third Party alleging infringement ofsuch Third Party’s intellectual property rights during the Term of this Agreement, including butnot limited to counsel fees, court costs, expert witness fees, translation expenses and othernecessary litigation expenses.     **1.20 “Losses”**shall mean liabilities, damages, costs or expenses, including reasonableattorneys’ fees, incurred by either Party which arises from any claim, lawsuit or other action by aThird Party.     **1.21 “Mylan”**shall mean Mylan Pharmaceuticals Inc.     **1.22 “Net Profits”**shall mean, for any period of determination, an amount equal to Net Salesduring that period less the Cost of Goods of the Product.     **1.23 “Net Sales”**shall mean, for any period of calculation, the aggregate gross amountinvoiced by Mylan to its customers during that period for commercial sales of the Product, less:          (a) Discounts, rebates, chargebacks, adjustments (including retroactive or shelf stockadjustments), cash incentive payments or any other discounts as may be accrued or actually paid,credited or given by Mylan to customers in connection with the sale of Product;          (b) Excise, sales and other taxes imposed upon the sale of Product (but not taxes imposed onthe income generated from such sales);          (c) Amounts repaid or credited by reason of rejection or returns (including by reason ofcustomer disputed quantities, shortages, damaged Product, or unsold or expired Product three (3)months beyond its “Sell By” date);          (d) All discounts, rebates, or other payments required by Law to be made under U.S. Medicaid,Medicare or any other governmental special medical assistance program; and          (e) Appropriate deductions for bad debts and uncollectible accounts for the applicableaccounting Period.     **1.24 “Party”**shall mean Mylan or DPSI and **“Parties”**shall mean Mylan and DPSI.     **1.25 “Period”**shall mean a calendar year beginning on the Commencement of Commercial Sales andending on December 31st and each calendar year thereafter during the Term of thisAgreement (as defined below).     **1.26 “Product”**shall mean Benzoyl Peroxide / Clindamycin topical gel, equivalent toBenzaclin® topical gel (clindamycin [1%] as clindamycin phosphate, benzoyl peroxide [5%])packaged in 50 gram jars. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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     **1.27 “Quarter Date”**shall mean any one of 30 September, 31 December, 31 March or 30 June.     **1.28 “Quarter”**means each period of three (3) consecutive months during the term of thisAgreement ending on a Quarter Date provided that:          (a) The period from the Commencement of Commercial Sales until the first Quarter Datethereafter is deemed to be a Quarter; and          (b) The period from the last Quarter Date prior to termination, through the termination date,of this Agreement is deemed to be a Quarter.     **1.29 “Territory”**shall mean the United States of America and its territorial possessions andprotectorates, including the District of Columbia, Puerto Rico, the U.S. Virgin Islands, theMarshall Islands and Guam.     **1.30 “Term of this Agreement”**shall have the meaning ascribed to it in Section 12.1.     **1.31 “Third Party”**shall mean any entity or person other than Mylan or DPSI or theirrespective Affiliates.**ARTICLE 2 PRODUCT DEVELOPMENT**     **2.1 ANDA**. DPSI will prosecute the ANDA for the Product and take all actions necessary toobtain full and effective FDA approval as expeditiously as possible for the manufacture,distribution and sale of the Product in the Territory. If DPSI fails or is unable or unwilling totake any action necessary in relation to the preparation, filing, prosecution or maintenance of theANDA for the Product, then Mylan, either itself or through agents or designees, shall be authorizedto take all necessary and reasonable steps in connection with such filings at DPSI’s expense, suchexpense to be authorized in advance by DPSI, including without limitation, to file or have filedsupplements or amendments to the ANDA and to respond to and correspond with the FDA as necessary inconnection therewith, and DPSI shall execute such powers of attorney, consents, assignments orother instruments as may be required for Mylan to perform such activities.     **2.2 Joint Development Committee**. Mylan and DPSI shall establish a Joint Development Committee(“JDC”) which shall monitor the progress of the ANDA toward final approval and the other Productdevelopment and regulatory activities DPSI is to perform under this Agreement, and to act in anadvisory capacity to the Parties in relation to such matters. The JDC shall establish a timetablefor completion of the Product development and regulatory activities contemplated hereunder and alsorecommend what further development and regulatory activities are required in order to attain fulland effective final approval from FDA for the Product in the Territory. The JDC shall be comprisedof three (3) representatives appointed by DPSI and three (3) representatives appointed by Mylan.Meetings of the JDC may be convened upon reasonable notice to both Parties and may be conductedeither in person or telephonically or by videoconference. In accordance with Section 8.2, the JDCshall meet quarterly to discuss ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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and agree on Product pricing strategy. The meetings and recommendations of the JDC shall berecorded and reflected in minutes of the JDC’s meetings which shall be reviewed and formallyapproved by the JDC.**ARTICLE 3 PAYMENTS AND COSTS**     **3.1 Initial Payment**. In consideration of the appointment of Mylan as DPSI’s exclusivedistributor of the Product in the Territory, Mylan will pay to DPSI a one-time, nonrefundablepayment of [**] U.S. DOLLARS (U.S. $[**]) as follows (singularly and collectively “InitialPayment”):          (a) [**] U.S. DOLLARS ($[**] USD) upon both Parties signing this Agreement; and          (b) [**] U.S. DOLLARS ($[**] USD) within forty five (45) calendar days after: [**].          **3.1.1**If the payment of the Initial Payment is not received by DPSI in terms of **Section 3.1****(a)** and **(b)**, this Agreement shall automatically terminate without further notice from DPSI.          **3.1.2**Mylan agrees that upon payment to DPSI, the Initial Payment paid in accordance Section3.1 (a) and (b) above is not refundable (either in whole or in part) and is not creditable (eitherin whole or in part) against any other payments made or to be made by Mylan to DPSI under thisAgreement.     **3.2 Development Costs**. [**] will bear and pay the costs and expenses of all Productdevelopment work conducted pursuant to this Agreement to facilitate regulatory approval for theProduct. [**] will bear and pay the costs and expenses of all costs associated with commercialdistribution of the Product.     **3.3 Legal Expenses**. If Mylan or DPSI or either of them is sued for patent infringement inconnection with the filing of the ANDA for the Product, or in connection with the manufacture, use,distribution or sale of the Product in the Territory during the Term of this Agreement, then Mylanshall have the right at its option to control the defense of such litigation, and to select anddirect counsel. Mylan will consult with DPSI in regards to the defense of all such matters. [**]will [**] all Legal Expenses incurred during the Term of this Agreement relating to Third Partyclaims alleging patent infringement or other infringement of Third Party intellectual propertyrights [**], regardless of which Party actually pays or incurs such Legal Expenses. DPSI willreasonably cooperate in the defense of any litigation relating to the Product, including withoutlimitation making its employees available for interviews, meetings, discovery proceedings andtrial, answering discovery requests and producing documents and things as may be necessary.Neither DPSI nor Mylan will enter into any settlement of any litigation or other dispute or claim,or any agreement with any Third Party, the effect of which could be to delay the market launch dateof the Product or otherwise impair or diminish the economic value of the Product opportunitywithout prior notice and consultation with the other ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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Party and without the other Party’s express written consent, not to be unreasonably withheld.For avoidance of doubt, the provisions in this Section relating to the sharing of Legal Expensesshall relate solely to Third Party claims alleging infringement of any Third Party’s intellectualproperty rights.**ARTICLE 4 EXCLUSIVITY**     **4.1 Exclusive Development**. During the Term of this Agreement, DPSI will develop the Productfor Mylan, and [**] shall supply the Product to Mylan as set forth in Section 5.1 (unless Mylanmanufactures the Product as set forth in Section 5.2), for sale in the Territory, on an exclusivebasis. DPSI will not prepare or file any application seeking approval to commercialize the Productin the Territory other than for Mylan in accordance with this Agreement.     **4.2 Semi-Exclusive Distribution**. Mylan’s commercial distribution rights with respect to theProduct within the Territory shall be exclusive. Notwithstanding the foregoing, DPSI and/or any ofits Affiliates may, in DPSI’ s discretion, itself and not through any Third Party, commercialize aDPSI-branded version of the Product under a DPSI trade name and trade dress and NDC number, subjectto DPSI’s payment to Mylan of [**] of gross margin received by DPSI as would have been generated byMylan under agreed terms of sale of the Product and as derived from all Product sale by DPSI of theDPSI-branded version of the Product in the Territory under this Agreement.     **4.3 No Sales Outside the Territory**. During the Term of this Agreement, Mylan shall notpromote or distribute the Product outside the Territory, nor shall Mylan sell such Product to anypurchaser that Mylan knows, or reasonably ought to know, intends to resell or redistribute theProduct outside the Territory. For avoidance of doubt, nothing in this Agreement shall preclude orlimit Mylan or its Affiliates from marketing, promoting, manufacturing, purchasing, distributing,or selling Third Party drug products that contain the same active ingredients as the Productoutside the Territory; provided, Mylan notifies DPSI of its intention to do so thirty (30) daysprior commencement of such Third Party drug sales outside the Territory.     **4.4**[**]**ARTICLE 5 SUPPLY AGREEMENT AND MANUFACTURING RIGHTS**     **5.1 Supply Agreement with [**]**. Mylan, DPSI and [**] shall enter into a mutually satisfactoryagreement pursuant to which Mylan is assured supply of the Product throughout the Term of thisAgreement.     **5.2 Mylan Manufacturing Rights**. Mylan and its Affiliates shall have the right to manufacturethe Product either in or outside the Territory and DPSI shall provide all necessary consents,assignments and reasonable regulatory and technical assistance as may be reasonably necessary inorder to effectuate the change in the site of manufacture of the Product. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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**ARTICLE 6 REGULATORY RESPONSIBILITIES**     **6.1 ANDA Holder’s Responsibilities**. As the holder of the ANDAs, DPSI will have sole authorityto deal with regulatory matters relating to the Product except as otherwise specifically stated inthis Agreement. During the Term of this Agreement, DPSI shall pay all associated fees and maintainall ANDAs for the Product in accordance with applicable Law and requirements of the FDA, includingthe filing of all annual and other reports or filings required by the FDA, and all other regulatoryand governmental permits, licenses and approvals for the Product that are necessary for DPSI tomanufacture, package, test, label, handle and ship the Product to Mylan and its Affiliates inaccordance with the terms of this Agreement and applicable Law.     **6.2 NDC Codes**. Mylan shall obtain its own labeler code, drug listing and NDC for use inconnection with the sale of Product pursuant to the terms and conditions of this Agreement, andwill promptly provide such information to DPSI as needed for inclusion on the label of Productsupplied to Mylan pursuant to this Agreement.     **6.3 Adverse Drug Experiences**. Mylan will submit to DPSI all reports of Adverse DrugExperiences reported to Mylan, together with all relevant information possessed by Mylan, in aformat to facilitate direct submission to the FDA and in accordance with applicable CFR that arefrom time to time in effect so as to allow DPSI to meet all periodic and annual safety andregulatory obligations to the FDA. Mylan shall also promptly submit to DPSI all Product complaintsfor investigation and feedback to DPSI. Each Party shall cooperate with the other and provideinformation in its possession to the extent necessary for the other Party to comply with all legalrequirements relating to the manufacture or marketing of the Product in the Territory. The Partieswill use Commercially Reasonable Efforts to agree upon a customary pharmacovigilance protocol aspromptly as practicable after the Effective Date to provide for the necessary exchange of adverseevent and related information. DPSI and Mylan will cooperate in good faith in establishing amechanism, for timely customer responses to inquiries of a medical or technical nature with respectto the Product.     **6.4 Recalls**. Mylan and DPSI will immediately inform the other in writing if it believes oneor more lots of any Product may be subject to recall from distribution, and will confer on thereasons for such belief. To the extent permitted by Law and public safety, the Parties will conferbefore initiating any Product recall. If the Parties do not reach agreement on the need forProduct recall, either Party may initiate a Product recall. The Party initiating the recall shallinitially bear the cost thereof and shall carry out the recall in accordance with best industrypractices. In the event it is determined that a recall resulted from a breach by any Party of anyof its representations or warranties under this Agreement, such Party shall be responsible for thecosts of the recall. The cost of any unnecessary or groundless recall shall be borne by the Partyinitiating or requesting such recall. Except as otherwise provided above, the cost of any Productrecall based on, resulting from, or arising in connection with any labeling issue, a failure towarn issue or a defect design issue shall be borne by DPSI. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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     **6.5 Retention of Samples**. DPSI shall keep such samples and records in respect of the Productas are required by applicable Law for such period of time as may be required by Law.     **6.6 FDA Correspondence**. Each of Mylan and DPSI shall promptly inform the other of anycorrespondence from the FDA regarding the Product that would materially affect its ability to meetits obligations under this Agreement. Each of Mylan and DPSI shall notify the other promptly ofany materially adverse inspections by the FDA or other regulatory authorities which pertain to theProduct or to the facilities of such Party or its Affiliate where the Product is being manufacturedor stored, or any occurrences or information that arise out of DPSI’s or Mylan’s manufacturingactivities that could have reasonably been expected to have adverse regulatory compliance orreporting consequences concerning any Product or which might otherwise be reasonably expected toadversely affect the supply by DPSI of the Product to Mylan. Mylan agrees that DPSI shall besolely responsible for responding to any correspondence from the FDA relating to the Product andshall be the sole point of contact with the FDA regarding the Product. DPSI will give Mylan thirty(30) days (or such other amount of time as may be imposed on DPSI) to review and comment on anyproposed communications with the Office of Generic Drugs of the FDA that in DPSI’s opinionmaterially affect (excluding periodic and routine reports) the Product and shall take Mylan’scomments which are received within the required time, if any, into account in communicating withFDA.     **6.7 Quality and PV Agreement**. Within ninety (90) days following mutual signature of thisAgreement, the Parties shall enter into a Quality and Pharmacovigilance Agreement (which may be twoseparate contracts) in form and content reasonably acceptable to the Parties and containingprotocols and specific responsibilities for handling Product quality complaints, Adverse DrugExperience reports, and professional medical service inquiries in accordance with Mylan’s and/orDPSI’s standard operating procedures and in conformity with FDA requirements and applicable Law.Mylan will bear the responsibility of the Pharmacovigilance Agreement at its cost and make theinformation available to DPSI to meet the regulatory requirements.**ARTICLE 7 PROFIT SHARING**     **7.1 Profit Sharing**.          **7.1.1**Mylan shall pay DPSI [**] percent ([**]%) of Mylan’s Net Profits derived from sales ofProduct in the Territory.          **7.1.2**For the first fiscal year Quarter in which the Commencement of Commercial Sale of theProduct occurs, and for in that Quarter only, the profit share will be paid by Mylan on a Quarterlybasis. Subsequent to such Quarter, the profit sharing payments will be calculated and paid to DPSIon a monthly basis. A monthly report of gross sales will be provided within ten (10) days of theend of each month. A monthly report of Net Sales, Net Profit and DPSI’s profit share will begenerated within forty five (45) days of the end of each month, together with a report detailingthe calculations. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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          **7.1.3**All payments will be made within forty five (45) days of the end of each month (exceptfor the first payment which will be due forty five (45) days after the first Quarter).          **7.1.4**If Net Sales of the Product in the Territory generate in excess of [**] US Dollars($[**] USD) in Net Profit in a Period, then DPSI will be paid an additional [**] percent ([**]%)share (for a total of [**] percent ([**]%)) of the incremental Net Profit above [**] US dollars($[**] USD). For any Period which is less than twelve (12) months, Net Sales and Net Profit shallbe prorated accordingly.          **7.1.5**If Net Sales of the Product in the Territory generate in excess of [**] US Dollars($[**] USD) in Net Profit in a Period, DPSI will be paid an additional [**] percent ([**]%) share(for a total of [**] percent ([**]%)) of the incremental Net Profit above [**] US dollars ($[**]USD). For any Period which is less than twelve (12) months, Net Sales and Net Profit shall beprorated accordingly.     **7.2 Recordkeeping**. During the Term of this Agreement and for one (1) year thereafter, or forsuch longer period as may be required by Law, both DPSI and Mylan shall prepare and retain accuratebooks and records as are needed to determine Cost of Goods, Net Sales and Net Profit. Such recordsshall be made available for reasonable review, audit and inspection upon reasonable notice and withreasonable frequency, upon the other Party’s request for the purpose of verifying the other Party’scalculations, payments made and due, and the basis for such calculations or payments. Audits andinspections may be conducted by a Party’s own personnel and/or retained consultant(s) who agree tobe bound by a reasonable confidentiality agreement.**ARTICLE 8 PRODUCT DISTRIBUTION**     **8.1 Promotion of the Product**. During the Term of this Agreement, Mylan shall use CommerciallyReasonable Efforts to promote the Product in the Territory; provided, however, that Mylan shall notbe deemed to have failed to abide by or have failed to perform in accordance with the foregoingstandard if Mylan is prevented from performing or is hindered in its performance by any act oromission of DPSI or by Force Majeure.     **8.2 Launch Decisions, Timing and Pricing of Product**. Prior to the Commencement of CommercialSale of the Product in the Territory by Mylan, and to the extent permitted by Law, Mylan and DPSIshall discuss in good faith and endeavor to agree upon specific launch and pricing plans for theProduct, including the following: Product launch price; Product pricing and plans that will beeffective upon entry of the first generic competitor to the Product and subsequent genericcompetitors; annual Product price strategy/actions; and inclusion of the Product in other Mylangroup product pricing arrangements. If the Parties should after good faith negotiations havefailed to agree on any the foregoing matters, such matters shall be referred to the President ofMylan and the Chief Executive Officer of DPSI for a final decision. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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**ARTICLE 9 OWNERSHIP OF APPLICATIONS AND INTELLECTUAL PROPERTY**     **9.1 Ownership of ANDA**. DPSI shall own and maintain at its own cost all ANDAs and associatedregulatory filings made for the Product.     **9.2 Ownership of Inventions and Know-How**. DPSI shall own all inventions and know-how made byDPSI in connection with the development of the Product under this Agreement, and shall have thesole right to apply for and prosecute in its own name applications for any appropriate patents,registrations, or other intellectual property protection for any and all such inventions. Mylanshall own all inventions and know-how made by Mylan or its Affiliates in connection with theProduct, and shall have the sole right to apply for and prosecute in its own name applications forany appropriate patents, registrations, or other intellectual property protection for any and allsuch inventions. During the term of this Agreement, both Parties grant to one another a fullypaid-up royalty-free, non-revocable, world-wide license to the intellectual property owned by eachParty to the extent necessary to perform each Party’s duties and to exercise each Party’s rightsunder this Agreement.**ARTICLE 10 INSURANCE AND INDEMNIFICATION**     **10.1 Product Liability Insurance**. Each Party shall, during the Term of this Agreement and fortwo (2) years after termination or expiration of this Agreement, obtain and maintain at its owncost and expense from a qualified insurance company (provided however that Mylan may be selfinsured for such amounts through one or more Affiliates), comprehensive general liability insuranceand product liability insurance providing protection against any and all claims, demands, andcauses of action arising out of any defects, alleged or otherwise, of the Product or its use,design, labeling or manufacture, or any material incorporated in the Product. The amount ofcoverage shall be a minimum of ten million US dollars ($10,000,000 USD) combined single limitcoverage for each occurrence for bodily injury and/or for property damage. Each Party agrees, uponrequest, to name the other Party as an additional insured on such policy and to furnish the otherParty with a certificate of insurance evidencing such insurance coverage, and the insured Partyshall not at any time act pursuant to this Agreement unless such insurance is in effect.     **10.2 Indemnity by DPSI**. DPSI agrees to indemnify, defend and hold harmless Mylan and itsAffiliates and their respective directors, officers, employees, consultants, representatives andagents from and against any and all Losses relating to (i) any material breach by DPSI of itsrepresentations, covenants or warranties in this Agreement, and (ii) any negligence or willfulmisconduct of DPSI or its Affiliates and their respective directors, officers, employees,consultants, representatives and agents, in the exercise of any of DPSI’s rights or the performanceof any of DPSI’s obligations under this Agreement.     **10.3 Indemnity by Mylan**. Mylan agrees to indemnify, defend and hold harmless DPSI and itsAffiliates and their respective directors, officers, employees, consultants, representatives andagents from and against any and all Losses relating to (i) any material breach by Mylan of itsrepresentations, covenants or warranties in this Agreement, and (ii) any negligence or willfulmisconduct of Mylan or its Affiliates and their respective directors, ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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officers, employees, consultants, representatives and agents, in the exercise of any ofMylan’s rights or the performance of any of Mylan’s obligations under this Agreement.     **10.4 Procedure**. A Party seeking indemnification under this Agreement (“Indemnified Party”)shall promptly notify, in writing, the other Party (“Indemnifying Party”) of the assertion of anyclaim or discovery of any fact upon which the Indemnified Party intends to base a claim forindemnification. An Indemnified Party’s failure to so notify the Indemnifying Party shall not,however, relieve such Indemnifying Party from any liability under this Agreement to the IndemnifiedParty with respect to such claim except to the extent that such Indemnifying Party is actuallydenied, during the period of delay in notice, the opportunity to remedy or otherwise mitigate theevent or activity(ies) giving rise to the claim for indemnification and thereby suffers orotherwise incurs additional Losses as a result of such failure. The Indemnifying Party, whilereserving the right to contest its obligations to indemnify, shall be responsible for the defenseof any claim, demand, lawsuit or other proceeding in connection with which the Indemnified Partyclaims indemnification. The Indemnified Party shall have the right at its own expense toparticipate jointly with the Indemnifying Party in the defense of any such claim, demand, lawsuitor other proceeding, but with respect to any issue involved in such claim, demand, lawsuit or otherproceeding with respect to which the Indemnifying Party has acknowledged its obligation toindemnify the Indemnified Party, the Indemnifying Party shall have the right to select counsel,settle, try or otherwise dispose of or handle such claim, demand, lawsuit or other proceeding onsuch terms as the Indemnifying Party shall deem appropriate, subject to any reasonable objection ofthe Indemnified Party. An Indemnifying Party’s right to control, select counsel for, settle,defend, try or otherwise dispose of or handle a claim, demand, lawsuit or other proceeding, doesnot give the Indemnifying Party the right: (i) to admit wrongdoing of any kind by or on behalf ofthe Indemnified Party; (ii) to falsely disparage the reputation of the Indemnified Party; (iii) tocause the Indemnified Party to be debarred; or (iv) to agree by or on behalf of the IndemnifiedParty to the imposition upon it of any monetary or other liability or obligation which cannotand/or will not be fully assumed and performed by the Indemnifying Party.     **10.5 Indemnification Obligations Survive Termination**. The Parties’ indemnificationobligations under this Agreement shall survive termination or expiration of this Agreement.**ARTICLE 11 REPRESENTATIONS AND WARRANTIES**     **11.1 Mylan warrants and represents the following**:          **11.1.1**Mylan is a corporation duly organized, validly existing and in good standing under thelaws of the state of West Virginia.          **11.1.2**Mylan has all requisite power and authority to enter into this Agreement and has therequisite skill, knowledge, staffing, financial resources and ability to carry out its obligationshereunder. The person signing this Agreement has the necessary corporate authority to legally bindMylan to the terms set forth herein. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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          **11.1.3**Mylan’s execution of this Agreement and performance of the terms set forth herein willnot cause Mylan to be in conflict with or constitute a breach of any agreement or understandingwith any Third Party.          **11.1.4**To Mylan’s knowledge and belief, there are no suits, actions, claims, proceedings, orinvestigations pending or threatened by or before any court, by any governmental agency or anyperson or entity relating to the matters set forth herein.          **11.1.5**Mylan’s execution of this Agreement and performance hereunder do not and will not be inmaterial conflict with any law, ordinance, statute or regulation.          **11.1.6**Mylan is not debarred and Mylan has not and will not knowingly use in any capacity theservices of any person debarred under subsection 306(a) or (b) of the U.S. Generic Drug EnforcementAct of 1992.          **11.1.7**Mylan has and will maintain throughout the term of this Agreement all permits,licenses, registrations and other forms of governmental authorization and approval as required byapplicable laws in order for Mylan to execute and deliver this Agreement and to perform itsobligations hereunder in accordance with all laws that are applicable to Mylan.          **11.1.8**[**]          **11.1.9**If at any time any of these representations and warranties is no longer accurate, Mylanshall immediately notify DPSI of such fact.     **11.2 DPSI warrants and represents the following**:          **11.2.1**DPSI is a corporation duly organized, validly existing and in good standing under thelaws of Delaware.          **11.2.2**DPSI has all requisite power and authority to enter into this Agreement and has therequisite skill, knowledge, staffing, financial resources and ability to carry out its obligationshereunder. The person signing this Agreement has the necessary corporate authority to legally bindDPSI to the terms set forth herein.          **11.2.3**DPSI’s execution of this Agreement and performance of the teens set forth herein willnot cause DPSI to be in conflict with or constitute a breach of any agreement or understanding withany Third Party.          **11.2.4**To DPSI’s knowledge and belief, there are no suits, actions, claims, proceedings, orinvestigations pending or threatened by or before any court, by any governmental agency or anyperson or entity relating to the Product or any other matters set forth herein.          **11.2.5**To DPSI’s knowledge and belief, the manufacture, use or sale of the Product in theTerritory does not and will not infringe upon the Dermik Patents. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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          **11.2.6**[**]          **11.2.7**DPSI’s execution of this Agreement and performance hereunder do not and will not be inmaterial conflict with any law, ordinance, statute or regulation.          **11.2.8**DPSI is not debarred and DPSI has not and will not knowingly use in any capacity theservices of any person debarred under subsection 306(a) or (b) of the U.S. Generic Drug EnforcementAct of 1992.          **11.2.9**DP SI has and will maintain throughout the term of this Agreement all permits,licenses, registrations and other forms of governmental authorization and approval as required byapplicable laws in order for DPSI to execute and deliver this Agreement and to perform itsobligations hereunder in accordance with all laws that are applicable to DPSI.          **11.2.10**DPSI has not granted, and will not grant during the Term of this Agreement, any otherdistribution rights to any Third Party or to any Affiliate of DPSI in the Territory regarding theProduct.     **11.3 Limitation of Representations and Warranties**. Neither party shall be deemed to make anyrepresentations or warranties, whether express or implied, except as specifically set forth herein.All other warranties express or implied, including with regard to the Product to be supplied byDPSI hereunder, and the implied warranties of merchantability and fitness for a particular purposeare hereby disclaimed by each party.**ARTICLE 12 TERM AND TERMINATION**     **12.1 Term**. The Term of this Agreement shall commence on the date this Agreement is signed byboth Parties and shall continue until the tenth (10th) anniversary of the Commencement ofCommercial Sales of such Product in the Territory, unless earlier terminated in accordance with theprovisions of this Agreement (“Term of this Agreement”). The Term of this Agreement shall beextended for a period equal to the period of judicial restraint if Product sales are enjoined andthe Product cannot lawfully be sold in the United States, notwithstanding the Parties’ expectationthat the Product does not infringe any Third Party intellectual property.     **12.2 Termination**.          **12.2.1**This Agreement may be terminated by mutual agreement of the Parties, or by either Partyupon sixty (60) days’ prior written notice to the other Party if such other Party breaches anymaterial provision of this Agreement and fails to cure that breach within such sixty (60) dayperiod. Any notice of material breach under this Section shall specify the default complained of,setting forth the underlying reasons for its belief a default has occurred and the remedy sought.The Party allegedly in default may cure the asserted breach or pursue the dispute resolution andarbitration process specified in Section 13.8 within the notice period. If arbitration is demandedthe Agreement shall continue in full force and effect as if the alleged breach had not occurred,pending the outcome of such arbitration. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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          **12.2.2**Either party may terminate this Agreement on immediate notice if at any time the otherParty: (a) voluntarily files in any court pursuant to any statute of any governmental authority apetition in bankruptcy or insolvency or for the appointment of a receiver or trustee of such partyor of its assets; (b) shall be served with an involuntary petition against it, filed in anyinsolvency proceeding, and such petition shall not be dismissed within sixty (60) days after thefiling thereof; (c) shall be a party to any dissolution or liquidation; or (d) makes a generalassignment for the benefit of creditors.          **12.2.3**This Agreement may be terminated on immediate notice if the manufacture, distributionor sale of the Product in the Territory would materially contravene any applicable Law; provided,however, no termination shall occur if the manufacture, distribution or sale of the Product can bebrought into compliance with such Law within a reasonable period of time and at a reasonableexpense to the parties hereto following the notice of non-compliance or violation.          **12.2.4**Termination of this Agreement for any reason shall be without prejudice to: (a) DPSI’ sright to receive all payments due from Mylan, if any, as of the effective date of such termination;(b) Mylan’s right to receive all payments due from DPSI, if any, as of the effective date of suchtermination; (c) Mylan’s right to sell such Product remaining in its inventory, and at Mylan’soption, Mylan may elect to take delivery of and sell the Product covered by any purchase orderissued by Mylan prior to the effective date of termination; and (d) any other legal, equitable, oradministrative remedies as to which either Party is or may become entitled.**ARTICLE 13 MISCELLANEOUS PROVISIONS**     **13.1 Governing Law**. This Agreement shall by governed by the laws of the state of New York.     **13.2 Confidentiality**. The existence of this Agreement and its terms, and all communicationsbetween the Parties and their representatives relating to the subject matters of this Agreementshall be considered Confidential Information under the Confidentiality Agreement between Mylan andDPSI dated November 8, 2006 and as amended October 30, 2007, and shall not be disclosed by eitherParty except as authorized by such Confidentiality Agreement (as amended) or as required by law.Notwithstanding anything in this Section 13.2 or the Confidentiality Agreement to the contrary,DPSI may disclose this Agreement and its terms to (i) any potential acquiror of all of the equityof DPSI, (ii) any potential purchaser of all or substantially all of the assets of DPSI or (iii)any underwriter for the public offering of the equity securities of DPSI, in each case subject tothe prior execution by such potential acquiror, purchaser or underwriter of a confidentialityagreement that is no less restrictive in terms and scope than the provisions of the ConfidentialityAgreement with respect to the Confidential Information. All confidential communications betweenthe Parties pertaining to legal matters shall be conducted subject to a common interest privilegeagreement between the Parties. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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     **13.3 Licenses and Permits**. Each Party shall, at its sole cost and expense, maintain in fullforce and effect all necessary licenses, permits, and other authorizations required by law in orderto carry out its duties and obligations hereunder.     **13.4 Independent Contractors**. This Agreement shall not constitute or give rise to anyemployer-employee, agency, partnership, or joint venture relationship among or between the Parties,and each Party’s performance hereunder is that of a separate, independent entity in pursuit of acommon purpose.     **13.5 No Modification**. None of the terms of this Agreement shall be amended or modified exceptin writing signed by all the Parties.     **13.6 Successors and Assigns**. Any change of control of Mylan, whether by the sale ofsubstantially all of Mylan assets or a majority of Mylan’s shares, to a Third Party shall give riseto the right of DPSI to terminate this Agreement with immediate effect and reclaim all rightsregarding the Product in the Territory. DPSI shall have thirty (30) days from the date of receiptof notice from Mylan that a change of control of Mylan has occurred to exercise this right. Exceptfor an assignment to an Affiliate of a Party, neither Party shall assign any of its rights orobligations under this Agreement without the prior written consent of the other Party, such consentmay be withheld on the grounds of reasonable and articulated commercial considerations. Subject tothe foregoing, each Party shall be entitled to assign all or any of its rights or obligations underthis Agreement to an Affiliate.     **13.7 Entire Agreement**. This Agreement constitutes the entire agreement between the Partiesrespecting the subject matter hereof and supersedes all previous term sheets, correspondence andany and all other writings and understandings except for the Confidentiality Agreement, as amended,as referred to in Section 13.2 which shall remain in full force and effect.     **13.8 Dispute Resolution / Arbitration**. All disputes between the Parties relating to orarising out of this Agreement, including but not limited to disputes, claims, defenses involving orrequiring the interpretation, validity, enforceability, alleged breach or performance of thisAgreement, shall be subject to the following dispute resolution procedure.     First, the dispute shall be presented to the President of Mylan and the Chief ExecutiveOfficer of DPSI. If the President and CEO are unable to resolve the dispute in a mutuallysatisfactory manner then the matter shall be submitted to a non-binding mediation before a mediatorchosen by, and acceptable to, both Parties.     If the Parties cannot resolve their dispute through non-binding mediation, then the mattershall be finally resolved by arbitration under the rules of the American Arbitration Associationregarding commercial disputes. The arbitration proceedings shall be conducted in New York City,New York, or in such other location as the Parties may mutually agree. The Parties will each beartheir own costs and expenses, including legal fees, incurred in connection with such arbitrationproceedings. ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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     Nothing in this **Section 13.8**restricts either Party’s freedom to seek urgent relief from acourt to preserve a legal right or remedy, or to protect a proprietary or trade secret right, or tootherwise seek emergency legal or equitable remedies necessary to preserve or restore the *statusquo*pending the outcome of arbitration, and no such court action shall be deemed a waiver of therequirement to arbitrate disputes pursuant to this Section.     **13.9 Limitation of Liability**. In no event shall either Party or their respective Affiliatesbe liable to the other Party or its Affiliates for special, punitive, indirect, incidental,exemplary or consequential loss or damage, or for lost profits, based on a contract, tort, or anyother legal theory, arising out any breach of this Agreement or otherwise relating to the subjectmatter of this Agreement, except as may be specifically and expressly stated in this Agreement.     **13.10 Severability**. To the extent any provision or term of this Agreement is or becomesunenforceable or invalid by operation of Law, such unenforceability or invalidity shall not affectthe remaining provisions of this Agreement. The Parties agree to renegotiate in good faith asubstitute provision that to the extent possible accomplishes the original business purpose of theprovision held to be unenforceable or invalid.     **13.11 Construction**. The language in all parts of this Agreement shall be construed, in allcases, according to its plain meaning. The Parties acknowledge that each Party and its legalcounsel have reviewed this Agreement and that any rule of construction to the effect that anyambiguities are to be resolved against the drafting Party shall not be employed in theinterpretation of this Agreement. The Article and Section headings and captions are placed hereinmerely as a matter of convenience and shall not affect the construction or interpretation of any ofthe provisions of this Agreement.     **13.12 No Third Party Benefit**. This Agreement shall be binding upon and inure solely to thebenefit of the Parties, their respective Affiliates and their permitted assigns, and nothing inthis Agreement, express or implied, is intended to or shall confer upon any Third Party any right,benefits or remedies of any nature whatsoever under or by reason of this Agreement.     **13.13 Further Acts**. Each of the Parties shall do, execute and perform and shall procure to bedone and perform all such further acts, deeds, documents and things as the other Party mayreasonably require from time to time to give full effect to the terms of this Agreement.     **13.14 Press Releases**. All press releases and other public announcements relating to thisAgreement or the transactions contemplated hereby will be prepared and issued only with the priormutual consent of Mylan and DPSI, except that Mylan may disclose freely that DPSI is the inventorof the Product, and otherwise except as disclosure may be required by Law.     **13.15 Costs**. Each Party will pay its own costs and expenses in connection with thenegotiation, preparation, execution and performance of this Agreement, except as otherwise providedherein.     **13.16 Notices**. Any notices given under this Agreement shall be in writing, sent by overnightdelivery by a reputable service (e.g. FedEx) with an additional copy by fax or e-mail, ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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and shall be deemed effective on the date of mailing. Unless otherwise changed by notice inwriting, notices may be served at the following addresses:   If to Mylan: If to DPSI:   Mylan Pharmaceuticals Inc. Dow Pharmaceutical Sciences, Inc.781 Chestnut Ridge Road 1330 Redwood WayMorgantown, WV 26505 Petaluma, CA 94954-1169Attn: President Attn: President and CEO   With a copy to:     Mylan Inc.  1500 Corporate Drive, Suite 400  Canonsburg, PA 15317  Attn: General Counsel       **13.17 Counterparts**. This Agreement may be executed in one or more counterparts, each of whichis to be considered an original and taken together as one and the same document. Faxed orelectronic images of signatures shall be effective as an original.               EXECUTED AND AGREED:                         DOW PHARMACEUTICAL SCIENCES, INC.   MYLAN PHARMACEUTICALS INC.                 By: /s/ Bhaskar Chaudhuri   By: /s/ Harry A. Korman               Printed Name: Bhaskar Chaudhuri     Printed Name: Harry A. Korman    Title: President and CEO     Title: President North America    Date: 3-14-2008     Date: 3-12-2008   ****** **CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.**
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