1

 
CONFIDENTIAL          1.4 “**Bundled Products**” means Authorized Generic or Generic Product, as applicable, sold orotherwise transferred or delivered to a Third Party with one or more other products or services incircumstances where the price of the Authorized Generic or Generic Product is either not shownseparately on the invoice, or is shown as nil (free of charge) on a separate document in relationto the Authorized Generic or Generic Product or to a portion of the quantities of the AuthorizedGeneric or Generic Product.          1.5 “**Confidential Information**” means all non-public materials, information and data concerningthe disclosing party and its operations that is disclosed by the disclosing party to the receivingparty pursuant to this Agreement, orally or in written, electronic or tangible form, or otherwiseobtained by the receiving party through observation or examination of the disclosing party’soperations. Confidential Information includes, but is not limited to, information about thedisclosing party’s financial condition and projections; business, marketing or strategic plans;sales information, customer lists; price lists; databases; trade secrets; product prototypes anddesigns; techniques, formulae, algorithms and other non-public process information.Notwithstanding the foregoing, Confidential Information of a party shall not include that portionof such materials, information and data that, and only to the extent, the recipient can establishby written documentation: (a) is known to the recipient as evidenced by its written records beforereceipt thereof from the disclosing party, (b) is disclosed to the recipient free ofconfidentiality obligations by a Third Party who has the right to make such disclosure withoutobligations of confidentiality, (c) is or becomes part of the public domain through no fault of therecipient, or (d) the recipient can reasonably establish is independently developed by persons onbehalf of recipient without the use of the information disclosed by the disclosing party.          1.6 “**FDA**” means the United States Food and Drug Administration or any successor entitythereto.          1.7 “**Fully Allocated Manufacturing Costs**” or “FAMC” for Generic Product shall have the meaningset forth in Exhibit E.          1.8 “**GAAP**” shall mean generally accepted accounting principles in effect in the United Statesfrom time to time, as consistently applied by the applicable Party with regard to their ownproducts and/or the standards of the industry.          1.9 “**Generic Equivalent**” means ***          1.10 “**Generic Product**” means ***          1.11 “**Grantback Patents**” means (a) ***, (b) all divisions, continuations,continuations-in-part, that claim priority to, or common priority with, the patent applicationsdescribed in clause (a) above or the patent applications that resulted in the patents described inclause (a) above, and (c) all patents that have issued or in the future issue from any of theforegoing patent applications, including utility, model and design patents and certificates ofinvention, together with any reissues, renewals, extensions or additions thereto.          1.12 “**License Trigger**” means, with respect to a Generic Equivalent to a Vanos Product, theearliest of the following dates:
2

 
CONFIDENTIAL               (a) ***;               (b) ***; and               (c) ***.          1.13 **“Net Profits”**means ***          1.14 “**Patent Rights**” means (a) the patents and patent applications listed on Exhibit A to thisAgreement, (b) all divisions, continuations, continuations-in-part, that claim priority to, orcommon priority with, the patent applications described in clause (a) above or the patentapplications that resulted in the patents described in clause (a) above, and (c) all patents thathave issued or in the future issue from any of the foregoing patent applications, includingutility, model and design patents and certificates of invention, together with any reissues,renewals, extensions or additions thereto.          1.15 “**Product**” means any product for which the making, using, selling or importation iscovered by one or more claims of the Patent Rights.          1.16 “**Territory**” means the United States of America, its territories and possessions,including the Commonwealth of Puerto Rico (but excluding direct sales of Authorized Generic intothe Commonwealth of Puerto Rico).          1.17 “**Third Party**” means any person or entity other than Medicis or Glenmark or theirrespective Affiliates.          1.18 “**Transfer Price**” shall be Medicis’ actual out of pocket acquisition cost of AuthorizedGeneric, the current such costs are set forth on Exhibit F (which prices will change from time totime to reflect Medicis’ then-current acquisition costs). For the avoidance of doubt, Medicisshall not have a duty to update Exhibit F.          1.19 **“Valid Claim”**means ***.          1.20 “**Vanos Products**” means the Vanos products listed on Exhibit B, as such products aremarketed and sold by Medicis as of the Effective Date in the Territory.          1.21 “**Vanos Product Patents**” means (a) all patents and patent applications in the Territoryowned or controlled by Glenmark or its Affiliates heretofore or hereafter that claim or cover aVanos Product or Generic Equivalent or the manufacture or use of a Vanos Product or GenericEquivalent, (b) all divisions, continuations and continuations-in-part (solely to the extentdirected to subject matter disclosed in a patent or patent application described in clause (a)above) that (i) claim priority to, or common priority with, the patent applications described inclause (a) above or the patent applications that resulted in the patents described in clause (a)above and (ii) claim or cover a Vanos Product or Generic Equivalent, or the manufacture or use of aVanos Product or Generic Equivalent, and (c) all patents that issue after the Effective Date fromany of the foregoing patent applications, including utility, model and design patents andcertificates of invention, together with any reissues, renewals, extensions or additions thereto.
3

 
CONFIDENTIAL     2. LICENSES; RELEASES.          2.1 License Grant for Generic Product.               2.1.1 Effective only upon the occurrence of the License Trigger for a Generic Product, Medicishereby grants to Glenmark a non-exclusive, non-transferable (except as permitted in Section 9.5)license (without the right to grant sublicenses except to have Generic Products made on behalf ofGlenmark) under the Patent Rights to make, have made, use, offer for sale, sell and import suchGeneric Products inside the Territory.               2.1.2 Until the occurrence of the applicable License Trigger, neither Glenmark nor itsAffiliates shall, and neither shall directly or indirectly encourage or assist any Third Party to,develop, make, use and/or commercialize any Products in the Territory.               2.1.3 Except as expressly set forth in Section 3, nothing in this Agreement shall be construedas creating an obligation, express or implied, on Medicis to supply any Product to Glenmark andGlenmark shall be solely responsible for manufacturing, or having manufactured, its supply ofGeneric Product.          2.2 ***          2.3 Grantbacks.               2.3.1 Glenmark and its Affiliates hereby grant to Medicis a perpetual, royalty-free,fully-paid up, non-transferable (except as provided in Section 9.5), non-exclusive license (withthe right to grant sublicenses through multiple tiers) under the Grantback Patents to make, havemade, use, offer for sale, sell and import Products in the Territory.               2.3.2 Glenmark and its Affiliates hereby grant to Medicis a perpetual, royalty-free,fully-paid up, non-transferable (except as provided in Section 9.5), non-exclusive license (withthe right to grant sublicenses through multiple tiers) under the Vanos Product Patents to make,have made, use, offer for sale, sell and import Vanos Products in the Territory.          2.4 Validity of Patent Rights.               2.4.1 Glenmark, on behalf of itself and its Affiliates, hereby admits that the claims of thePatent Rights are valid and enforceable. The foregoing admission regarding validity andenforceability shall be binding upon Glenmark and its Affiliates and admissible against Glenmarkand its Affiliates in any dispute or litigation between the parties regarding the Patent Rights,and neither Glenmark nor its Affiliates will challenge any such admission.               2.4.2 Glenmark, on behalf of itself and its Affiliates, hereby also admits that the making,using, offering to sell, selling, and/or importation into the Territory of a Generic Product iscovered by one or more claims of the Patent Rights under 35 U.S.C. § 271.               2.4.3 Glenmark shall not assist any Third Party in an action to invalidate or renderunenforceable any of the Patent Rights, and Glenmark shall not disclose any of its
4

 
CONFIDENTIALproprietary orconfidential information relating to the validity or enforceability of any of the Patent Rights,except to the extent required by court order or other applicable law.               2.4.4 Glenmark shall not receive any ownership rights in the Patent Rights under thisAgreement, and Medicis shall retain the sole right, to prepare, prosecute, maintain and enforce thePatent Rights.          2.5 No Implied Licenses. Except as explicitly set forth in this Agreement, neitherparty grants to the other party under its patents or other intellectual property any license,express or implied. Glenmark shall not use Medicis’ name or any Medicis trademarks (includingwithout limitation Vanos®) in connection with the marketing, promotion or sale of any productswithout the prior written consent of Medicis in each instance; provided, however, that inconnection with the Distribution Agreement Glenmark may use the Medicis tradename Vanos (but notany associated logo or artwork) for the sole purpose of identifying the corresponding AuthorizedGeneric as being comparable to the applicable Vanos Product.          2.6 Releases. In consideration of the mutual covenants herein and in the JointDismissal Agreement attached hereto as Exhibit C and incorporated herein by reference, and withoutlimiting any remedies a party may have against the other party for a breach of this Agreement,Glenmark hereby releases and agrees to release Medicis and Medicis hereby releases and agrees torelease Glenmark from all claims arising out of the Litigation. Upon the Effective Date, Glenmarkand Medicis shall cause to be completed, executed and filed with the Court a stipulated dismissalwith prejudice of the Litigation, in the form of the Joint Dismissal Agreement attached hereto asExhibit C, and to seek entry of such order by the Court. Within five (5) business days of theexecution of this Agreement, Medicis shall pay to Glenmark an amount equal to the attorneys’ feesincurred by Glenmark in preparing for and defending the Litigation, the sum of ***.     3. DISTRIBUTOR.          3.1 Distribution Agreement. If, as of the License Trigger date, Glenmark has notreceived approval from the FDA of its ANDA covering a Generic Equivalent, then effective as of theLicense Trigger, Medicis hereby appoints Glenmark as its non-exclusive distributor of theAuthorized Generic in the Territory and authorizes Glenmark, under the Patent Rights, tomarket the Authorized Generic solely to wholesalers, distributors, retailers, mail order,managed care, and group purchasing organizations in the Territory, pursuant to a separatedistribution and supply agreement (the **“Distribution Agreement”**) to be entered into betweenGlenmark and Medicis.          3.2 Terms. Commencing on the License Trigger, or if the License Trigger appears to beimminent then upon written notice by a party to the other party, the parties shall negotiate ingood faith the terms of and enter into the Distribution Agreement, which will contain the followingprovisions:               • Unless earlier terminated by either party for cause or by Glenmark for convenience,the term of any such appointment of Glenmark as the non-exclusive distributor of the AuthorizedGeneric shall extend from the License Trigger and remain in effect until such
5

 
CONFIDENTIALtime as Glenmark hasobtained approval from the FDA for its ANDA covering the Generic Equivalent, but in no event longerthan *** after the License Trigger;                • Medicis will supply (either itself or through its Third Party manufacturer) Glenmark*** in the Territory for the Authorized Generic in finished form; on such forecasting, invoicing,shipment, delivery, inspection and payment terms as are agreed upon by the parties and set forth inthe Distribution Agreement;                • Medicis will sell the Authorized Generic to Glenmark at Transfer Price;                • Glenmark shall retain *** of all Net Sales resulting from sales of the AuthorizedGeneric and shall pay the remaining *** of Net Sales to Medicis, on a quarterly basis, where “NetSales” is defined as the amount invoiced by Glenmark in arm’s length transactions for the sale ofthe Authorized Generic in the Territory to independent Third Parties in the Territory, less the sumof the following items, all of which must directly relate to the sale and distribution ofAuthorized Generic:                    (i) trade, quantity and cash discounts and rebates;                    (ii) any adjustments on account of price adjustments (including for example shelf stockadjustments), rejected goods, damaged goods and returns, and product recalls;                    (iii) credits, charge backs and prime vendor rebates, fees, reimbursements, and similarpayments actually granted or given to wholesalers and other distributors, buying groups, healthcare insurance carriers, pharmacy benefit management companies, health maintenance organizations,other institutions or health care organizations or other customers;                    (iv) rebates or other price reductions provided, based on sales by Glenmark of AuthorizedGeneric, to any governmental or regulatory authority in respect of any state or federal Medicare,Medicaid or similar programs;                    (v) any invoiced charge for freight, insurance, handling, or other transportation costs, tothe extent specifically invoiced to the customer;                    (vi) credits or discounts related to sales promotions and trade show discounts; and                    (vii) any duties, sales taxes, excise taxes or other taxes imposed upon and paid by Glenmarkand not reimbursed with respect to such sales (excluding income or franchise taxes of any kind),for all activities paid or incurred by Glenmark.Net Sales shall be determined in accordance with the accrual method of accounting in accordancewith GAAP. Sales or transfers between or among Glenmark and its Affiliates shall be excluded fromthe computation of Net Sales except where such Affiliates are end users, but Net Sales shallinclude the subsequent final sales to Third Parties by such Affiliates. Bundled
6

 
CONFIDENTIALProducts shall bedeemed invoiced at the Authorized Generic market price established by Glenmark in generalconditions of sales, or failing such general conditions, at the arm’s length price that Glenmarkwould generally or in the average invoice for Authorized Generic alone. Any and all unsoldinventory, unsold product from firm purchase orders or unused in-process or excess materials andcomponents shall not be deducted from the Net Sales calculation.                • Medicis and Glenmark will each indemnify the other for third party claims arising fromtheir actions under the Distribution Agreement and breaches of representations and warranties; and                • such other terms as the parties may agree and as are commercially reasonable and usualand customary for agreements of such type.          3.3 ***     4. FINANCIAL CONSIDERATIONS.          4.1 Royalty.               4.1.1 Within *** following the end of each calendar quarter during the term of this Agreement,Glenmark shall pay to Medicis a royalty equal to *** of all *** received during such calendarquarter for Generic Product. Medicis’s right to receive a share of the *** under thisSection 4.1.1 shall expire upon the expiration, cancellation, invalidation or abandonment(whichever comes first) of the last Valid Claim. On the launch of a *** Generic Equivalent by aThird Party after the Effective Date of this Agreement, for so long as there are *** GenericEquivalents offered for sale in the Territory Glenmark shall pay to Medicis a reduced royalty atthe rate of *** of all Net Profit received.               4.1.2 Within *** following the end of each calendar quarter during the term of this Agreement,Glenmark shall provide to Medicis a written report stating the number and description of allGeneric Product sold during the relevant calendar quarter; the gross salesassociated therewith; the calculation of *** thereon, and the royalties that will be payablefor such calendar quarter in accordance with Section 4.1.1.          4.2 Taxes. Glenmark shall be responsible for, and may withhold from payments made toMedicis under this Agreement, any taxes required to be withheld by Glenmark under applicable law.Accordingly, if any such taxes are levied on such payments due hereunder (“**Withholding Taxes**”),Glenmark shall (i) deduct the Withholding Taxes from the payment amount, (ii) pay all applicableWithholding Taxes to the proper taxing authority, and (iii) send evidence of the obligationtogether with proof of tax payment to Medicis within sixty (60) days following that tax payment.          4.3 Audit Rights. Not more than once per calendar year during the portion of the termof this Agreement during which Glenmark shall pay Medicis royalties, on no less than thirty (30)business days notice from Medicis, Glenmark shall make all such records, books of account,information and data concerning (a) its sales of Generic Products pursuant to this Agreement; (b)its manufacture of any Generic Products, and (iii) to the extent in its possession, the manufactureof Generic Products on behalf of Glenmark by its Third Party contract
7

 
CONFIDENTIALmanufacturer, in each case available for inspection during normal business hours by an independent auditor selected by Medicisand reasonably acceptable to Glenmark for the purpose of an audit to determine the accuracy of thereports delivered and amounts paid by Glenmark pursuant to Section 4.1. Medicis shall be solelyresponsible for its costs in making any such audit, unless Medicis identifies a discrepancy infavor of Glenmark in the calculation of the share of Net Profit paid to Medicis under thisAgreement in any calendar year from those properly payable for that calendar year of *** orgreater, in which event Glenmark shall be solely responsible for the reasonable cost of such auditand pay Medicis any underpayment.     5. TERM AND TERMINATION.          5.1 Term. Subject to Section 5.2, this Agreement shall expire on the date when thereare no Valid Claims in the Territory; provided, however, that if there are no valid, issued patentswithin the Patent Rights, but there are at such time pending patent applications within the PatentRights, then subject to the terms and conditions of this Agreement, the term of this Agreementshall continue for the pendency of such pending patent applications.          5.2 Termination for Cause. Either party may terminate this Agreement upon or afterthe material breach of any material provision of this Agreement by the other party if the otherparty has not cured such breach within thirty (30) days after receipt of express written noticethereof by the non-breaching party.          5.3 Effect of Expiration or Termination. Expiration or termination of this Agreementshall not relieve the parties of any obligation accruing prior to such expiration or termination,and the provisions of Sections 2.2, 2.3, 2.4, 2.6, 4.3, 5.3, 6, 8 and 9 shall survive theexpiration or termination of this Agreement.     6. CONFIDENTIALITY.          6.1 Confidentiality. For a period of five (5) years following the expiration orearlier termination of this Agreement, except with respect to any Confidential Informationconstituting a trade secret in which case the receiving party’s obligation continues in perpetuity,provided such receiving party has been informed as to the status of such Confidential Informationas a trade secret, each party shall maintain in confidence all Confidential Information disclosedby the other party, and shall not use, grant the use of or disclose to any Third Party theConfidential Information of the other party other than as expressly permitted hereby. Each partyshall notify the other promptly upon discovery of any unauthorized use or disclosure of the otherparty’s Confidential Information.          6.2 Permitted Disclosures. Either party may disclose Confidential Information of thedisclosing party (a) on a need-to-know basis, to such party’s directors, officers and employees tothe extent such disclosure is reasonably necessary in connection with such party’s activities asexpressly authorized by this Agreement, and (b) to those agents and consultants, and contractmanufacturers who need to know such information to accomplish the purposes of this Agreement(collectively, “**Permitted Recipients**”); provided such Permitted Recipients are bound to maintainsuch Confidential Information in confidence at least to the same extent as set forth inSection 6.1.
8

 
CONFIDENTIAL          6.3 Litigation and Governmental Disclosure. Each party may disclose ConfidentialInformation of the other party to the extent such disclosure is reasonably necessary forprosecuting or defending litigation, complying with a court order or applicable law, governmentalregulations or investigation, provided that if a party is required by law or regulation to make anysuch disclosure of the other party’s Confidential Information it will give reasonable advancenotice to the other party of such disclosure requirement and will use good faith efforts to assistsuch other party to secure a protective order or confidential treatment of such ConfidentialInformation required to be disclosed.          6.4 Limitation of Disclosure. The parties agree that, except as otherwise may berequired by applicable laws, regulations, rules or orders, including without limitation the rulesand regulations promulgated by the United States Securities and Exchange Commission, the Departmentof Justice and the Federal Trade Commission, or any regulations of any national securitiesexchange, and except as may be authorized in Section 6.5, no information concerning this Agreementand the transactions contemplated herein shall be made public by either party without the priorwritten consent of the other.          6.5 Publicity. Except for the press release attached hereto as Exhibit D, which bothparties shall be freely able to disclose, neither party shall make any publicity releases,interviews or other non-confidential dissemination of information concerning this Agreement or itsterms, or either party’s performance hereunder, to communication media, financial analysts orothers without the prior written approval of the other party, which approval shall not beunreasonably withheld, delayed or conditioned. Notwithstanding anything to the contrary in thisAgreement, the parties understand and agree that either party, may, if so required, disclose someorall of the information included in this Agreement or other Confidential Information of theother party (a) in order to comply with its obligations under the law, including the United StatesSecurities Act of 1933 and the United States Securities Exchange Act of 1934; (b) in order tocomply with the listing standards or agreements of any national or international securitiesexchange or The NASDAQ Stock Market or New York Stock Exchange or other similar laws of agovernmental authority; (c) to respond to an inquiry of a governmental authority or regulatoryauthority as required by law; or (d) in a judicial, administrative or arbitration proceeding. Inany such event the party making such disclosure shall (i) provide the other party with as muchadvance notice as reasonably practicable of the required disclosure, (ii) cooperate with the otherparty in any attempt to prevent or limit the disclosure, and (iii) limit any disclosure to thespecific purpose at issue. In connection with any filing of a copy of this Agreement with theSecurities and Exchange Commission, the filing party shall endeavor to obtain confidentialtreatment of economic and trade secret information, and shall keep the other party informed as theplanned filing (including, but not limited to providing the other party with the proposed filingreasonably in advance of making the planned filing) and consider the requests of the other partyregarding such confidential treatment.     7. REPRESENTATIONS AND WARRANTIES.          7.1 Representations. Each party hereby represents and warrants to the other partythat (a) the person executing this Agreement is authorized to execute this Agreement; (b) thisAgreement is legal and valid and the obligations binding upon such party are enforceable by theirterms; and (c) the execution, delivery and performance of this Agreement does not conflict with
9

 
CONFIDENTIALanyagreement, instrument or understanding, oral or written, to which such party may be bound, norviolate any law or regulation of any court, governmental body or administrative or other agencyhaving jurisdiction over it.          7.2 Compliance with Law. Glenmark shall comply with all applicable laws andregulations with respect to obtaining regulatory approval for the sale of Generic Products and itsmanufacture, sale and commercialization of Authorized Generic and Generic Products. Medicis shallcomply with all applicable laws and regulations with respect to the manufacture of the AuthorizedGeneric.          7.3 Disclaimer of Warranties. Except for those warranties expressly set forth in thisAgreement, neither party makes any warranty, written, oral, express or implied, with respect tothis Agreement. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THEIMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENTHEREBY ARE DISCLAIMED BY BOTH PARTIES.          7.4 Limitation of Liability. WITH THE EXCEPTION OF DAMAGES RESULTING FROM A PARTY’SBREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR ITS OBLIGATIONS UNDER SECTION 8,OR A BREACH BY GLENMARK OF SECTIONS 2.1.2 OR 2.4, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BELIABLE FOR LOSS OF USE OR PROFITS OR OTHER COLLATERAL,SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT,WHETHER SUCH CLAIMS ARE FOUNDED IN TORT OR CONTRACT.          7.5 Equitable Relief. Glenmark acknowledges and agrees that its obligations andundertakings under this Agreement are reasonable and necessary to protect the legitimate interestsof Medicis, that Medicis would not have entered into this Agreement in the absence of suchprovisions, and that Glenmark’s threatened breach or failure to comply with Section 2.4 of thisAgreement shall cause Medicis significant and irreparable harm, the amount of which shall beextremely difficult to estimate and ascertain, and for which money damages shall not be adequate.Glenmark further acknowledges and agrees that Medicis shall have the right to apply to any court ofcompetent jurisdiction for an injunction order restraining any breach or threatened breach of thisAgreement and specifically enforcing the terms and provisions of this Agreement, without thenecessity of posting any bond or security, in addition to seeking any other remedy available toMedicis in law or equity.     8. INDEMNIFICATION.          8.1 Glenmark Indemnification. Glenmark shall indemnify, defend and hold harmlessMedicis, its directors, managers, members, officers, employees, authorized subcontractors andagents (collectively the “**Medicis Indemnified Parties**”) from and against any and all liabilities,obligations, penalties, judgments, disbursements of any kind and nature, losses, damages, costs andexpenses (including, without limitation, reasonable attorney’s fees and costs) (collectively,**“Losses”**) incurred as a result of any claims, demands, actions or other proceedings by a ThirdParty against a Medicis Indemnified Party to the extent arising out of (a) Glenmark’s
10

 
CONFIDENTIALmanufactureor sale of Generic Product pursuant to this Agreement or the sale of Authorized Generic pursuant tothe Distribution Agreement; or (b) Glenmark’s breach of any representation, warranty or covenantunder this Agreement, except to the extent that such Losses arise out of Medicis’ breach of anyrepresentation, warranty or covenant under this Agreement.          8.2 Medicis Indemnification. Medicis shall indemnify, defend and hold harmlessGlenmark, its directors, managers, members, officers, employees, authorized subcontractors andagents (collectively the “**Glenmark Indemnified Parties**”) from and against any and all Lossesincurred as a result of any claims, demands, actions or other proceedings by a Third Party againsta Glenmark Indemnified Party to the extent arising out of (a) Medicis’ manufacture of AuthorizedGeneric pursuant to the Distribution Agreement; or (b) Medicis’ breach of any representation,warranty or covenant under this Agreement, except to the extent that such Losses arise out ofGlenmark’s breach of any representation, warranty or covenant under this Agreement.          8.3 Obligations. A party which intends to claim indemnification under this Section 8(the **“Indemnified Party”**) shall promptly notify the other party (the **“Indemnifying Party”**) inwriting of any claim, demand, action, or other proceeding in respect of which the Indemnified Partyintends to claim such indemnification; provided, however, that failure to provide such noticewithin a reasonable period of time shall not relieve the Indemnifying Party ofany of its obligations hereunder except to the extent the Indemnifying Party is prejudiced bysuch failure. The Indemnified Party shall permit the Indemnifying Party, at its discretion, tosettle any such action, claim or other matter. Notwithstanding the foregoing, the IndemnifyingParty shall not enter into any settlement that would adversely affect the Indemnified Party’srights hereunder, or impose any obligations on the Indemnified Party in addition to those set forthherein, in order for it to exercise such rights, without the Indemnified Party’s prior writtenconsent, which shall not be unreasonably withheld or delayed. No such action, claim or othermatter shall be settled without the prior written consent of the Indemnifying Party, which shallnot be unreasonably withheld or delayed. The Indemnified Party shall reasonably cooperate with theIndemnifying Party and its legal representatives in the investigation and defense of any claim,demand, action, or other proceeding covered by the indemnification obligations of this Section 8.The Indemnified Party shall have the right, but not the obligation, to be represented in suchdefense by counsel of its own selection and at its own expense.     9. GENERAL PROVISIONS.          9.1 Notices. All notices hereunder shall be delivered by facsimile (confirmed byovernight delivery), or by overnight delivery with a reputable overnight delivery service, to thefollowing address of the respective parties:       If to Medicis: Medicis Pharmaceutical Corporation    7720 North Dobson Road    Scottsdale, Arizona 85256    Attn: Chief Executive Officer    Facsimile: 480-291-5175       with a copy to: Medicis Pharmaceutical Corporation
11

 
CONFIDENTIAL         7720 North Dobson Road    Scottsdale, Arizona 85256    Attn: General Counsel    Facsimile: 480-291-8508       If to Glenmark: Glenmark Generics Inc., USA    750 Corporate Drive    Mahwah, New Jersey 07430    Attn: CEO    Facsimile: 201-831-0080       With a copy to: Glenmark Generics Ltd.    Glenmark House, HDO Corporate building, A- Wing; B.D.    Sawant Marg, Off. Western Express Highway, Chakala;    Andheri — East, Mumbai- 400099 INDIA    Attn: CEO    Facsimile: 91-22-67589990     Notices shall be effective on the day of receipt. A party may change its address listed aboveby notice to the other party given in accordance with this Section 9.1.          9.2 Entire Agreement. The parties hereto acknowledge that this Agreement sets forththe entire agreement and understanding of the parties and supersedes all prior written or oralagreements or understandings with respect to the subject matter hereof. No modification of any ofthe terms of this Agreement, or any amendments thereto, shall be deemed to be valid unless inwriting and signed by an authorized agent or representative of both parties hereto. No course ofdealing or usage of trade shall be used to modify the terms and conditions herein. This Agreementshall be binding on each of Glenmark and Medicis and their respective permitted successors andassigns.          9.3 Waiver. None of the provisions of this Agreement (including the Exhibits hereto)shall be considered waived by any party hereto unless such waiver is agreed to, in writing, byauthorized agents of such party. The failure of a party to insist upon strict conformance to anyof the terms and conditions hereof, or failure or delay to exercise any rights provided herein orby law shall not be deemed a waiver of any rights of any party hereto.          9.4 Obligations to Third Parties. Each party warrants and represents that thisAgreement does not conflict with any contractual obligations, expressed or implied, undertaken withany Third Party.          9.5 Assignment. Neither party shall assign this Agreement or any part hereof or anyinterest herein (whether by operation of law or otherwise) to any Third Party (or use anysubcontractor) without the written approval of the other party; provided, however, that eitherparty may assign this Agreement without such consent (i) to any Affiliate; and (ii) in the case ofa merger, consolidation, change in control or sale of all or substantially all of the assets of theparty relating to this Agreement and the resulting entity assumes all of the obligations under thisAgreement. No assignment shall be valid unless the permitted assignee(s) assumes all obligations
12

 
CONFIDENTIALof its assignor under this Agreement. No assignment shall relieve any party of responsibility for theperformance of its obligations hereunder. Any purported assignment in violation of thisSection 9.5 shall be void.          9.6 Independent Contractor. Glenmark and Medicis are acting under this Agreement asindependent contractors and neither shall be considered an agent of, or joint venturer with, theother. Unless otherwise provided herein to the contrary, each party shall furnish all expertise,labor, supervision, machining and equipment necessary for the performance of its obligationshereunder and shall obtain and maintain all building and other permits and licenses required bypublic authorities.          9.7 Governing Law. In any action brought regarding the validity, construction andenforcement of this Agreement, it shall be governed in all respects by the laws of the State ofArizona, without regard to the principles of conflicts of laws.          9.8 Severability. If any term or provision of this Agreement shall for any reason beheld invalid, illegal or unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect any other term or provision hereof, and this Agreement shallbe interpreted and construed as if such term or provision, to the extent the same shall have beenheld to be invalid, illegal or unenforceable, had never been contained herein.          9.9 Headings, Interpretation. The headings used in this Agreement are for convenienceonly and are not part of this Agreement.          9.10 Counterparts. The Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constitute one and the sameinstrument.          8.12 No Prejudice. If at any time this Agreement is rendered null and void withrespect to the Territory or any portion thereof, or if either of Glenmark or Medicis cannot fulfillits obligations with respect to this Agreement, it is the intent of the parties that neither partywill be in any way prejudiced with respect to its claims, causes of action, defenses andcounterclaims in the Litigation in such jurisdiction or otherwise and, except as provided herein ortherein, no consent judgment, order or dismissal entered by either party pursuant to this Agreementin the Territory or portion thereof, as applicable, will be deemed an admission on the part of suchparty.*[Remainder of this page intentionally blank]*
13

 
CONFIDENTIALIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by theirduly-authorized representatives effective as of the Effective Date.       GLENMARK GENERICS LTD. MEDICIS PHARMACEUTICAL CORPORATION       By:   By:         Name:   Name:         Title:   Title:                GLENMARK GENERICS INC., USA.           By:             Name:             Title:             
14

 
EXHIBIT APatent Rights   Patents Pending Applications (all U.S.)   *** ******
A-1

 
EXHIBIT BVanos Products   **PRODUCT** **NDC****Vanos (fluocinonide cream 0.1%) 30g** **99207-0525-30****Vanos (fluocinonide cream 0.1%) 60g** **99207-0525-60****Vanos (fluocinonide cream 0.1%) 120g** **99207-0525-10**
B-1

 
EXHIBIT CJoint Dismissal Agreement**IN THE UNITED STATES DISTRICT COURT**