PURCHASER DURING A PERIOD OF 90 (NINETY) DAYS (THE
"EXCLUSIVITY PERIOD").
THE SELLER HEREBY AGREES AND ACKNOWLEDGES THAT THE RIGHT
OF FIRST NEGOTIATION OF THE SELLER SET FORTH IN THIS CLAUSE 8.19 SHALL NOT
INCLUDE ANY COMPANIES (OR PARTIAL EQUITY INVESTMENTS THEREIN) OR BUSINESSES IN
INDIA WHICH MAY BE ACQUIRED AFTER THE EFFECTIVE DATE BY THE PURCHASER OR ANY OF
ITS AFFILIATES OR ANY JOINT VENTURE (OTHER THAN FOR GENERIC NPNC OR BIOSIMILAR
INJECTABLE FORMS) THAT THE PURCHASER OR ANY OF ITS AFFILIATES MAY ESTABLISH
AFTER THE EFFECTIVE DATE WITH ANY PERSON IN INDIA.
8.19.2
EXERCISE OF RIGHT OF FIRST NEGOTIATION.
THE SELLER MAY
EXERCISE ITS RIGHT TO ENTER INTO THE EXCLUSIVITY PERIOD BY NOTIFYING THE
PURCHASER IN WRITING OF ITS ELECTION WITHIN FOURTEEN
59
CONFIDENTIAL TREATMENT
[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.
(14) DAYS OF THE SELLER'S RECEIPT OF THE PROPOSED TRANSACTION NOTICE.
IF SELLER
EXERCISES ITS RIGHT TO ENTER INTO THE EXCLUSIVITY PERIOD, (I) EACH OF THE
PARTIES SHALL NEGOTIATE IN GOOD FAITH THE TERMS OF THE PROPOSED TRANSACTION, AND
(II) IF REACHING AGREEMENT OF SUCH TERMS EACH OF THE PURCHASER AND THE SELLER
(AND ITS DESIGNEE) SHALL TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS AND DO, OR
CAUSE TO BE DONE, ALL THINGS REASONABLY NECESSARY, PROPER OR ADVISABLE UNDER
APPLICABLE LAWS AND REGULATIONS TO CONSUMMATE AND MAKE EFFECTIVE THE PROPOSED
TRANSACTION.
8.19.3
NEGOTIATION WITH A THIRD PARTY.
IF THE SELLER FAILS TO
EXERCISE ITS RIGHT TO ENTER INTO THE EXCLUSIVITY PERIOD OR THE PARTIES ARE
UNABLE, DESPITE USING GOOD FAITH EFFORTS, TO AGREE UPON THE TERMS OF THE
PROPOSED TRANSACTION WITHIN THE EXCLUSIVITY PERIOD, THE PURCHASER SHALL BE FREE
TO ENTER INTO THE PROPOSED TRANSACTION WITH A THIRD PARTY; PROVIDED, HOWEVER,
THAT SUCH THIRD PARTY TRANSACTION SHALL BE FOR A PRICE OF NOT LESS THAN THE
CONSIDERATION LAST OFFERED BY THE SELLER.
IN NO EVENT SHALL THE PURCHASER
CONSUMMATE A PROPOSED TRANSACTION UNTIL AFTER THE EXPIRATION OF THE PERIOD
DURING WHICH THE SELLER MAY EXERCISE ITS RIGHT TO ENTER INTO THE PROPOSED
TRANSACTION AND DURING WHICH THE SELLER HAS FAILED TO EXERCISE SUCH RIGHT.
8.20
OFFER NOTICE AND EXERCISE OF RIGHT OF FIRST
NEGOTIATION REGARDING THE SELLER'S BETA-LACTAM API BUSINESS.
8.20.1
OFFER NOTICE.
IF AT ANY TIME DURING THE PERIOD FIVE
(5) YEARS AFTER THE CLOSING, AND PROVIDED THAT THE PURCHASER IS NOT IN BREACH OF
THE TERMS OF THE API SUPPLY AGREEMENT, THE SELLER DESIRES TO SELL OR TRANSFER
THE BUSINESS OF RESEARCHING, DEVELOPING, TESTING, MANUFACTURING, SELLING,
MARKETING AND DISTRIBUTING BETA-LACTAM API (THE "BETA-LACTAM API BUSINESS")
(WHETHER THROUGH ONE TRANSACTION OR A SERIES OF TRANSACTIONS) IN A TRANSACTION
OR TRANSACTIONS WHERE THE BETA-LACTAM API BUSINESS REPRESENTS A MAJORITY OF THE
ASSETS BEING SOLD OR TRANSFERRED BY THE SELLER IN SUCH TRANSACTION OR SERIES OF
TRANSACTIONS (THE "PROPOSED BETA-LACTAM API TRANSACTION"), THEN THE SELLER
SHALL, PRIOR TO HOLDING DISCUSSIONS WITH OR SOLICITING OFFERS FROM ANY THIRD