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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
IMPAX LABORATORIES, INC.,
Plaintiff,
v.
SHIRE LLC and SHIRE LABORATORIES, INC., :
Defendants.
NOTICE OF REMOVAL
TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF NEW YORK:
PLEASE TAKE NOTICE that defendant Shire LLC hereby removes to this Court the
state-court action described below.
On November 1,2010, plaintiffImpax Laboratories, Inc. ("Impax") commenced an
action in the Supreme Court of the State ofNew York, County ofNew York, entitled lmpax
Laboratories, Inc. v. Shire LLC and Shire Laboratories, Inc.
On November 1,2010, counsel for defendant Shire LLC received copies of the summons
and complaint in the state-court action from counsel for Impax. Shire LLC timely filed this
Notice of Removal on November 2,2010.
Copies of all nonconfidential process, pleadings, and orders provided to Shire LLC in the
state-court action are attached as Exhibit A. Co~ie9 ef aU 8oft§eoftti6IIH6ee33, f'leagipgs, and _
-'O'r.del=S I3roYiee€l to 8mle LbC i:B: tAo stftte eoml action enc attached as Exhibit B Me Me flied .....
%Yh q Itt ~ I~ 0 I 0
- 1 - 0084 JOI9.DOC
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This is a civil action for which this Court has original jurisdiction under 28 U.S.C.
§ 1332, and may be removed to this Court by Shire LLC pursuant to the provisions of28 U.S.C.
§1441 (b) in that it is a civil action between citizens of different states and the matter in
controversy exceeds the sum of $75,000, exclusive of interest and costs. For instance, Impax
alleges that Shire's alleged contractual breach has resulted "in millions of dollars of financial
losses to Impax." (Ex. A CompI. , 24.)
Impax alleges that it is a corporation organized under the laws of Delaware, with its
principal place of business in Hayward, California. (Ex. A CompI. , 3.) As Impax recognizes,
Shire LLC is a Kentucky limited liability company, with its principal place of business in
Wayne, Pennsylvania. (Ex. A CompI. , 4.)
The complaint also names Shire Laboratories, Inc. ("SLI") as a defendant. SLI's
citizenship should be disregarded for purposes of determining jurisdiction under 28 U.S.c.
§ 1332 and 28 U.S.c. § 1441(b) on the ground that there is no possibility that Impax will be able
to establish liability against SLI because SLI ceased to exist years ago. On December 15,2006,
SLI merged with and into Shire LLC, and thus ceased to exist as a separate and distinct corporate
entity. (See Ex. C, Agreement and Plan of Merger dated December 15,2006 at § 1.01 (b),
stating, "At the Effective Time, the Delaware Corporation shall be merged with and into the
Kentucky LLC, whereupon the separate existence of the Delaware Corporation shall cease, and
the Kentucky LLC shall be the surviving entity of the Merger....")
WHEREFORE, Shire LLC prays that this action be removed to the United States District
Court for the Southern District ofNew York.
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.~177.~ Dated: New York, New York
November 2, 2010 Edgar H. Haug Steven M. Amundson Michael F. Brockmeyer FROMMER LAWRENCE & HAUG LLP
745 Fifth Avenue NewYork,NewYork 10151 Telephone: (212) 588-0800 Facsimile: (212) 588-0500 [email protected] [email protected] [email protected]
Attorneys for Shire LLC
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CERTIFICATE OF SERVICE
I certify that on this 2nd day ofNovember 2010, I caused a copy of SHIRE LLC'S NOTICE OF REMOVAL to be served on the following counsel:
BY E-MAIL and FEDERAL EXPRESS Ansim M. Bhansali, Esq. Paula L. Blizzard, Esq. Sharif E. Jacob, Esq. Keker & Van Nest LLP 710 Sansome Street San Francisco, CA 94111-1704 Attorneys for Plaintiff Impax Laboratories, Inc.
And
Jonathan Bach, Esq. Cooley LLP 1114 Avenue of the Americas New York, NY 10036 Attorneys for Plaintiff Impax Laboratories, Inc.
DATED: November 2,2010
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Exhibit A
1. Statement in Support of Assignment to Commercial Division
2. Redacted Complaint
3. Order to Show Cause with a Temporary Restraining Order
4. Emergency Affirmation of Asim Bhansali
5. Signed Order to Show Cause
Exhibit B
1. Unredacted Summons and Complaint with Exhibits
2. Plaintiffs Memo in Support of Order to Show Cause
3. Bhansali Affirmation, Including Affidavit of Todd Engle, Affidavit of Charles Hildenbrand, and Affidavit of Asim M. Bhansali
Exhibit C
1. Articles of Merger of Shire Laboratories into Shire LLC
00841 I I7.DOC
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A
Document2
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Documcnt2
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
------------------------------------- IMPAX LABORATORIES, INC.,
X
-against-
Plaintiff, Index No.
SHIRE LLC and SHIRE LABORATORIES, INC.,
Defendants.
STATEMENT IN SUPPORT OF ASSIGNMENT TO COMMERCIAL DIVISION
-------------------------------------- X
ASIM M. BHANSALI, counsel for Plaintiffhnpax Laboratories, Inc., submits this
Statement and the accompanying copy of the pleadings, pursuant to Section 202.70(d)(2) of the
Unifonn Rules for the Trial CoUTts, in support of the request of said party for the assignment of
this matter to the Commercial Division of this court.
I. As counsel for Plaintiffhnpax Laboratories, Inc., I have reviewed the standards
for assignment of cases to the Commercial Division set forth in Rule 202.70. This case meets
those standards, and I therefore request that this case be assigned to the Commercial Division.
2. The sums at issue in this case are in excess of the monetary threshold of the
Division as set out in Subdivision (a) of said Section, in that the amount of damages sought
(exclusive ofpunitive damages, interest, costs, disbursements and counsel fees claimed) exceeds
S150,000, and equitable relief is sought in that, Plaintiff seeks specifIc perfonnance pursuant to
N.Y. Uc.c. Law § 2-716, and pursuant to N.Y. C.P.L.R. 6301, Plaintiff also seeks a temporary
restraining order and a preliminary injunction.
3. This case falls squarely within the standards set out in Subdivision (b) of Section
202.70 and does not fall within the types of cases set out in Subdivision (c) that will not be heard
524483.01
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in the Divisl,o~ infuatitisab:rea~h ofcontractacti,oo and mvolvestfll.t\Sactfonsgi)'vernedbythe
Unifoffi) Comm.eteial Code. Uniform Rules for Trial Courts (22 NYCRR)§202.70(b)(l),
(b)(2).
Dated: October 30, 2010
~ ~ UO/MoL~q)· ASlm M. Bhaosall Paula L. Blizzard (ProHac Vice Application
Forthcoming) SharifE. Jacob (Pro Hac Vice Application
Forthcoming) KEKER & VAN NEST LLP 710 Sansome Street San Francisco; CA 94J 11-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
COOLEYLLP Jonathan: Bach 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275
Attorneys for Plaintiff IMPAX LABORATORlES, INC.
2 524483.01
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IREDACTED SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
IMPAX LABORATORIES, INC., Index No. -----"-U_f/_i_9) 12010
Plaintiff,
v.
SHIRE LLC and SHIRE LABORATORIES, INC.
Defendant.
COMPLAINT AND JURY DEMAND
INTRODUCTION
1. Impax Laboratories, Inc. ("Impax") brings this case to protect Impax's right to a
supply of authorized generic Adderall XR ("AG Product") under its Settlement Agreement with.
Defendant Shire Laboratories, Inc., and its License and Distribution Agreement ("Distribution
Agreement") with Defendant Shire LLC. The Settlement Agreement and Distribution
Agreement (collectively, "Agreements") obligate Shire LLC and Shire Laboratories, Inc.
(collectively, "Shire" or "Defendan~s") to fill without delay Irnpax's orders for Shire's product
Adderall XR, which is labeled and sold as an "authorized generic" version of Adderall XR.
Defendants willfully and intentionally breached that obligation by supplying only a small
fraction of Impax's orders, even though the Agreements require Defendants to meet Impax's
requirements, and Defendants have sufficient quantity available to meet Impax's orders.
Defendants' breach has caused Impax to suffer irreparable harm to its customer relationships and
business goodwill, and substantial financial losses.
2. Impax seeks damages, specific performance, and injunctive relief to remedy
Defendants' wrong.<iQing. Because of regulatory requirements imposed by the United States
Food and Drug Administration ("FDA"), no source for the AG Product other than Shire exists;.
Irnpax has no commercially reasonable alternative--or any alternative-to Shire. Therefore,
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both damages and specific performance are necessary for Impax to obtain an adequate remedy
for Defendants' willful failure to meet their obligations under the Agreements.
PARTIES
3. Impax isa corporation organized under the laws of Delaware, with its principal
place of business in Hayward, California. Impax develops, manufactures, and sells
pharmaceutical products.
4. Defendant Shire LLC is a Kentucky limited liability company, with its principal
place of business, on information and belief, in Wayne, Pennsylvania.
5. Defendant Shire Laboratories, Inc. ("Shire Labs") is a corporation organized .
under the laws of Delaware, with its principal place of business, on information and belief, in
Wayne, Pennsylvania.
6. Shire develops and sells pharmaceutical products. Shire also manufactures
pharmaceutical products, either directly or through a contract manufacturer.
JURISDICTION AND VENUE
7. This Court has jurisdiction over all claims in this case under the N.Y. Const. art.
VI § 7(a).
8. This Court has jurisdiction over the parties because the parties executed a forum
selection clause consenting to the personal jurisdiction of this Court and designating this Court as
the forum for resolving disputes arising out of the Distribution Agreement.
9. Venue is proper in this judicial district under N.Y. c.P.L.R. 503 because, on
information and belief, none of the parties reside in this state.
FACTUAL BACKGROUND
Adderall XR and the Shire-Impax Agreements
10. Adderall XR is a prescription drug used to treat Attention Deficit Hyperactivity
Disorder ("ADHD").
11. Shire sells, among other prescription drugs, the brand-name version of Adderall
XR. Shire Labs is the owner of New Drug Application ("NDA") No. 21-303, approved by the
FDA in 2001 for the manufacture and sale of Adderall XR.
2
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12. Impax sought to enter the market with its own generic version of Adderall XR by
fIling an Abbreviated New Drug Application ("ANDA") with the FDA. In response, Shire sued
Impax for patent infringement under the Hatch:'Waxman Act; which allows branded versions of
drugs to sue their generic counterparts under certain circumstances before the ANDA is
approved by FDA.
13. On or about January 19, 2006, Shire Labs and Impax entered into a negotiated
Settlement Agreement dismissing the patent lawsuit. The negotiated settlement included the
Distribution Agreement, which Impax and Shire executed. A copy of the Settlement Agreement,
including the Distribution Agreement, is attached hereto as Exhibit A.
14. Impax's license under the Distribution Agreement became effective, under the
Distribution Agreement's terms, on or about October 1, 2009 ("Impax License Effective Date").
15. Under the Distribution Agreement, Impax could enter the market with a generic
version of Adderall XR on or after the Irnpax License Effective Date, in one of two ways. Impax
could enter the market with a generic Adderall XR product m~de by Impax under the Impax
ANDA or, alternatively, Impax had the option to elect to have Shire supply Irnpax's
requirements for authorized generic Adderall XR.
16. The FDA has not approved Irnpax's ANDA. Impax has elected to order and sell
AG Product using the promised supply from Shire, as provided for in the Distribution
.Agreement.
17. The AG Product is manufactured by Shire and/or its contractor DSM
Pharmaceuticals, Inc. ("DSM"). It is the same product as branded Adderall XR, except for
differences in appearance, such as the printing. However, the AG Product is not sold as Adderall
XR. Rather, it is labeled as a generic product and sold by Impax under the label of Global
Pharmaceuticals, the generic division of Impax.
18. The Distribution Agreement sets forth the process for Shire to fill Impax's orders
for AG Product. For Impax's initial order, Shire was required to supply Impax the quantity of
AG Product that Impax requested in a binding forecast for its initial launch of the AG Product,
including the first three months of its sales. After that initial order, Irnpax places its orders based
3
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REDACTED on its forecasted sales pursuant to Section 5.4 of the Distribution Agreement. Under Section 5.5,
Shire has to deliver hnpax's orders within five days of the requested delivery date.
19. Paragraph 14 of the Settlement Agreement provides that any breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
Shire's Failure to Supply AG Product to Impax While Enriching Itself
20. In advance of the Impax License Effective Date, Impax timely and appropriately
notified Shire of its contractual right to have Shire manufacture and supply AG Product under
the Distribution Agreement. Impax also timely submitted its order for an initial launch quantity
of AG Product. Following its initial order, Impax has continued to submit timely orders for AG
Product, based on its forecasts, up to the present time.
21. Shire did not timely fill all of Impax's orders specifying delivery in 2009. Shire
failed to timely fill at least"of the orders that Impax placed for AG Product specifying
delivery in 2009. Despite Shire's obligations under the Distribution Agreement, Shire's failure
to meet Impax' s orders has accelerated in 2010. Without justification, Shire has not fully
delivered_of the orders specifying delivery in 20 I0, and even when it has partially filled an
order, it has been late. Shire has failed to fill any portion of at leas~of the orders due in
2010.
22. While not meeting Impax's orders, Shire continues to supply some or all of its·
own needs for Adderall XR, and is still selling substantial volumes of the product in the market.
Upon information and belief, Shire could have used some or all of the Adderall XR that it is \
selling onits own to supply Impax's requirements for AG Product.
23. Shire continues to supply some or all of the needs of Teva Pharmaceuticals USA,
Inc. ("Teva"), another seller of authorized generic Adderall XR. Impax is informed and believes
that Shire is supplying Teva with a much greater amount of authorized generic Adderall XR than
it is supplying to Impax. Upon information and belief, Shire could have used some or all of the
Adderall XR that it is selling to Teva to supply Impax's requirements for AG Product.
24. However, Defendants have chosen to willfully breach their obligations under the
Agreements, resulting in millions of dollars of financial losses to .Impax. Moreover, the injury to
4
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. Impax is not just financial. When hnpax does not get supply from Shire, it cannot supply its own
customers, because the AG Product is a unique good that hnpax cannot obtain elsewhere.
Impax's in'ability to supply its customers results in irreparable harm to hnpax's business
goodwill and its reputation with customers.
25. Demand for Adderall XR or its authorized generics is expected to grow in the first
quarter of 2011. Impax needs immediate relief in order to prevent Shire from using denial of
supply to Impax to capture that expected growth.
26. Furthermore, customers who cannot buy.the authorized generic from Impax will
switch some or all of their orders away from Impax. They may switch to Shire's branded
Adderall XR or Teva's authorized generic Adderall XR-the only other forms of Adderall XR
available on the market. If customers move their orders to an alternative source of Adderall XR,
. Impax will have difficulty switching back those customers, even if its supply of AG Product is
revived. Thus, hnpax is irreparably harmed by Shire's failure to deliver on Impax's orders for
AG Product.
27. Defendants profit from their willful breach of the Agreements in several ways.
First, Shire sells more AdderallXR, which increases its revenues because Shire's profit on
Adderall XR is higher than the royalty Impax pays for the AG Product. Second, Shire profits
further because Impax's inability to meet customer orders means that competition is reduced.
Thus, Defendants' breach of the Agreements hurts not only Impax, but also consumers in the
marketplace, who have to pay higher prices, because less supply of hnpax 's less expensive
authorized generic is available.
Dispute Resolution Efforts
28. . Impax has made substantial efforts to resolve this dispute prior to filing this
Complaint.
29. Impax has complied with the dispute resolution provisions in Section 16.13 of the'
Distribution Agreement before filing this Complaint.
30. Indeed, Impax has made efforts above and beyond those required under Section
16.13 to resolve this dispute.
5
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FIRST CAUSE OF ACTION
Breach of Contract - Damages - Common Law
(plaintiff Impax Against Shire Defendants)
31. hnpax realleges and incorporates by reference every one of its prior allegations.
32. The Settlement Agreement entered into between I~pax and Shire Labs on'
January 19,2006 is valid, binding, and enforceable.
33. Paragraph 14 of the Settlement Agreement provides that a breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
34. The Distribution Agreement entered into between hnpax and Shire LLC on
Janllary 19,2006 is valid, binding, and enforceable.
35. Section 5.5 of the Distribution Agreement requires Shire to supply Impax' s orders
of AG Product within five days of the specified delivery date.
36. Impax has fully performed its obligations underthe Distribution Agreement.
Among other things, Impax timely submitted its orders for AG Product pursuant to the terms of
the Distribution Agreement.
37. All conditions required by the Distribution Agreement for Shire's performance
have occurred.
38. . Defendants breached the Agreements by taking one or more actions contrary to its
terms, including but not limited to failing to fill Iinpax's orders of AG Product and their breach is
continuing to this day.
39. Defendants acted in bad faith and with reckless disregard to Impax's rights under
the Agreements.
40. As a result of Defendants' breach, Impax has suffered damages in the form of lost
profits and other incidental and consequential damages to be proved at trial. lmpax has suffered
millions of dollars of financial losses plus irreparable harm to its business reputation and
goodWill. Impax has been unable to fill its customers' orders for AG Product, and, as a result,
these customers have abandoned Impax for other suppliers, including Shire. hnpax's lost profits
were foreseeable and within the contemplation of the parties at the time the Agreements were
6
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executed. Thus, Defendants would have foreseen that if it did not make the deliveries required
Onder the Agreements, Impax would lose profits as a result.
SECOND CAUSE OF ACTION
Breach of Contract - Damages - N.Y. U.C.C. Law §§ 2-713 & 2-715
(plaintiff Impax Against Shire Defendants)
41. Impax realleges and incorporates by reference every one of its prior allegations.
42. The Settlement Agreement entered into between Impax and Shire Labs on
January 19,2006 is valid, binding, and enforceable.
43. Paragraph 14 of the Settlement Agreement provides that a breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
44. The Distribution Agreement entered into between Impax and Shire LLC on
January 19,2006 is valid, binding, and enforceable.
45. Section 5.5 of the Distribution Agreement requires Shire to supply Impax's orders
of AG Product within five days of the specified delivery date.
46. Impax has fully performed its obligations under the Distribution Agreement.
Among other things, Impax timely submitted its orders for AG Product pursuant to the terms of
the Distribution Agreement.
47. All conditions required by the Distribution Agreement for Shire's performance
have occurred.
48. Defendants breached the Agreements by taking one or more actions contrary to its
terms, including but not limited to failing to fill Impax's orders of AG Product and their breach is
continuing to this day.
49. Defendants acted in bad faith and with reckless disregard to Impax's rights under
the Agreements ..
50. As a result of Defendants' breach, Impax has suffered damages in the form of lost
profits and other incidental and consequential damages to be proved at trial. Impax has suffered
millions of dollars of financial losses plus irreparable hairn to its business reputation and
goodwill. Impax has been unable to fill its customers' orders for AG Product, and., as a reSUlt,
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these customers have abandoned Impax for other suppliers, including Shire. Impax's lost profits
were foreseeable and within the contemplation of the parties at the time the Agreements were
executed. Thus, Defendants would have foreseen that if it did not make the deliveries required
under the Agreements, Impax would lose profits as a result.
51. Pursuant to N.Y. V.e.e. Law §§ 2-713 and 2-715, Impax requests an award of all
damages, including lost profits and other consequential damages, that Impax incurred as a result
of Defendants' breach of the Agreements.
THIRD CAUSE OF ACTION
Breach of Contract - Specific Performance - Common Law
(plaintiff Impax Against Shire Defendants)
52. Impax realleges and incorporates by reference everyone of its prior allegations.
53. The Settlement Agreement entered into between Impax and Shire Labs on
January 19,2006 is valid, binding, and enforceable.
54. Paragraph 14 pf the Settlement Agreement provides that a breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
55. The Distribution Agreement entered into between Impax and Shire LLC on
January 19, 2006 is valid, binding, and enforceable.
·56. Section 5.5 of the Distribution Agreement requires Shire to supply Impax's orders
of AG Product within five days of the specified delivery date.
57. Impax has fully performed its obligations under the Distribution Agreement.
Among other things, Impax has timely submitted its orders for AG Product pursuant to the terms
of the Distribution Agreement.
58. All conditions required by the Distribution Agreement for Shire's performance
have occurred.
59. Defendants breached the Agreements by taking one or more actions contrary to its
terms, including but not limited to failing to fill Impax' s orders of AG Product and their breach is
continuing to this day.
60. As a result of Defendants' continuing breach, Impax has suffered millions of
8
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dollars of financial losses plus irreparable harm to its business reputation and goodwill. hnpax
has been unable to fIll its customers' orders for AG Product, and, as a result, these customers
have abandoned Impax for other suppliers, including Shire.
61. Shire has the ability to fill some or all ofImpax's orders of AG Product.
62. There is no adequate remedy at law to compensate Impax for Defendants' breach
of the Distribution Agreement. No alternative source exists to which Impax can turn to obtain
AG Product. Money damages are insufficient to compensate Impax for the loss of customer
goodwill and business reputation.
FOURTH CAUSE OF ACTION
Breach of Contract - Specific Performance - N.Y. U.C.C~ Law § 2-716
(Plaintiff Impax Against Shire Defendants)
63. Impax realleges and incorporates by reference everyone of its prior allegations.
64. The Settlement Agreement entered into between Impax and Shire Labs on
January 19,2006 is valid, binding, and enforceable.
65. Paragraph 14 of the Settlement Agreement provides that a breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
66. The Distribution Agreement entered into between Impax and Shire LLC on.
January 19, 2006 is valid, binding, and enforceable.
67. Section 5.5 of the Distribution Agreement requires Shire to supply Impax's orders
of AG Product within five days of the specified delivery date.
68. Impax has fully performed its obligations under the Distribution Agreement.
Among other things, Impax has timely submitted its orders for AG Product pursuant to the terms
of the Distribution Agreement.
69. All conditions required by the Distribution Agreement for Shire's performance
have occurred.
70. Defendants breached the Agreements in bad faith by taking one or more actions
contrary to its terms, including but not limited to failing to fill Impax's orders of AG Product and
their breach is continuing to this day.
9
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71. As a result of Defendants' continuing breach, Impax has suffered millions of
dollars of financial losses plus irreparable harm to its business reputation and goodwill. Impax
has·been unable to fill its customers' orders for AG Product, and. as a result, these customers
have abandoned Impax for other suppliers, including Shire.
72. Shire has the ability to fill some or all of Impax's orders of AG Product.
73. Specific performance is warranted because AG Product is unique as the term is
used in N.Y. u.C.C. Law § 2-716(1). No alternative source exists to which Impax can tum to
obtain AG Product.
74. There is no adequate remedy at law to compensate Impax for Defendants' breach
of the Agreements. Money damages are insufficient to compensate Impax for the loss of
customer goodwill and business reputation.
FIFTH CAUSE OF ACTION
Intentional Interference With Prospective Economic Advantage
(Plaintiff Impax Against Shire Defendants)
75. Impax realleges and incorporates by reference every one of its prior allegations.
76. Iinpax had business relationships with third parties whereby Impax would supply
these third parties with AG·Product that it obtained from Shire.
77. Defendants were aware of Impax •s relationships with these third parties.
78. Defendants intentionally interfered with Impax's relationships with its customers.
Defendants chose not to meet Impax's requirements. Defendants did so knowing that such
failure to deliver AG Product would interfere with Impax's relationships with its customers.
Upon information and belief, Defendants took this action, at least in part, in order to compel
customers to use their own products.
79. Defendants acted out of malice and with the intent of inflicting harm on Impax.
80. But for Defendants' conduct, Impax would have cOntinued its relationships with
its customers. Defendants' conduct caused Impax to suffer financial losses as well as irreparable
harm to its business reputation and customer goodwill.
10
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SIXTH CAUSKOF ACTION
" Unjust Enrichment
(Plai~tiffImpax Against Shire Defendants)
81. Impax real1eges and incorporates by reference ~very one of its prior allegations.
82. Defendants have been enriched by their improper conduct. Defendants' breach of
-the Agreements has resulted in more revenue and profit for themselves. Instead of filling
hnpax's timely orders of AG Product pursuant to the Distribution Agreement;Shire, upon
information and belief, decided to sell some or all of its available product as Adderall XR.
Defendants' actions resulted in higher profits for Shire than if it had supplied AG Product to
hnpax as the Agreements require.
83. Defendants' enrichment has been at Impax's expense.
84. It is improper and unjust for Defendants to retain the benefit of any additional
profit it gained by selling Adderall XR that could have been used to supply Impax.
SEVENTH CAUSE OF ACTION
Breach of·the Covenant of Good Faith and Fair Dealing
(Plaintiff Impax Against Shire Defendants)
85. Impax realleges and incorporates by reference everyone of its prior allegations.
86. The Settlement Agreement entered into between Impax and Shire Labs on
January 19, 2006 is valid, binding, and enforceable.
87. Paragraph 14 of the Settlement Agreement provides that a breach of the
Distribution Agreement constitutes a breach of the Settlement Agreement.
." 88. The Distribution Agreement entered into between Impax and Shire LLC on
January 19,2006 is valid,.binding, and enforceable.
89. .Section 5.5 of the Distribution Agreement requires Shire to supply Impax's orders
of AG Product within five days of the specified delivery date.
90. Impax has fully performed its obligations under the Distribution Agreement.
Among other things, Impax has timely submitted its orders for AG Product pursuantto the terms
of the Distribution Agreement.
11
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91. All conditions required by the Distribution Agreement for Shire's performance
have occurred.
92. Defendants breached the Agreements in bad faith by taking one or more actions
contrary to its terms, including but not limited to failing to fIll Impax's orders of AG Product and
their breach is continuing to this day.
93. As a result of Defendants' continuing breach, Impaxhas suffered millions of
dollars of financial losses plus irreparable harm to its business reputation and goodwill. Impax
has been unable to fill its customers' orders for AG Product, and, as a result, these customers
have abandoned Impax for other suppliers, including Shire.
94. By executing the Agreements, Defendants entered into an implied covenant of
good faith and fair dealing with Impax. That covenant required Defendants to act in good faith
and to use their best efforts to fulfill its obligations under the Agreements. Defendants have
failed to do so. Instead of filling Impax's timely orders of AG Product as required by the
_ Agreements, Defendants willfully disregarded their obligations under the Agreements by not
supplying AG Product in order to further their own profit.
JURY DEMAND
95. Impax requests a jury trial for all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Impax prays for judgment as follows:
1. Entering an order requiring specific performance by Defendants of their
obligations under the Agreements to fill Impax's purchase orders for AG Product;
2. Entering preliminary injunctive relief requiring specific performance by
Defendants of their obligations under the Agreements to fill Impax's purchase orders for AG
. Product;
3. Awarding Impax damages incurred as a result of Defendants' breach of the
Agreements and other wrongful conduct, including all lost profits, incidental and consequential
damages, as allowed by law;
4. AwardingImpax recovery for any unjust enrichment of Defendants that occurred
12
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at Impax's expense;
5. Awarding Impax attorneys' fees, costs, and expenses incurred in its efforts to
enforce the Agreements; and
13
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6. Granting Impax such· other reliefas this Court deems proper.
Respectfully submitted,
Dated: November 1,2010 COOLEY LLP
By: j~ l~c....c.----,---
Jonathan Bach 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275
KEKER & VAN NEST Asim M. Bhansali Paula L. Blizzard Sharif E. Jacob 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
Attorneys for Plaintiff IMPAX LABORATORIES, INC.
14
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3
Documcn12
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----
At an IAS Part -'--'Room __. of the Supreme Court of the StateofNew York held in and forthe County ofNew York, at the . Courthouse located at
-~------,.-~--'
New York, New York on the __ day of October, 20 I0
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
IMPAX LABORATORIES, INC., Index No. kfJ jq3 12010
Plaintiff, ORDER TO SHOW CAUSE WITH A TEMPORARY RESTRAINING ORDER
-against-
SHIRE LLC and SHIRE LABORATORIES, ORAL ARGUMENT REQUESTED INC.,
Defendants.
Upon reading and filing ofPlaintiff Impax Laboratories, Inc.'s ("Impax's")
Memorandum of Law, the Emergency Affirmation of Asim M. Bhansali dated October 30, 2010,
the Transmittal Affirmation ofAsim M. Bhansali dated October 30, 20 I0, the Affidavit ofTodd
Engle sworn to on October 29, 2010 and the exhibits thereto, the Affidavit of Charles
Hildenbrand sworn to on October 29,2010 and the exhibits thereto, and the Affidavit of Asim
M. Bhansali sworn to on October 30, 2010 and the exhibits thereto, and sufficient grounds
having been shown, let Shire LLC and Shire Laboratories, InC;. (collectively, "Shire") or their
attorneys show cause before this Court, at Part __, Room __, in the Courthouse at
__________, New York, New York on , 2010, at
a.m.lp.m. or as soon thereafter as counsel may be heard, why an order should not be
issued pursuant to N.Y. C.P.L.R. 6301 granting a preliminary injunction ordering that:
I. Shire is prohibited from filling any orders for Shire or its affiliates until it has
filled all remaining orders placed by Impax that have come due;
2. Shire must immediately, and no later than 45 calendar days after entry of this
order, fill all orders placed by Impax that have come due;
517501.01
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3. Shire must fill orders placed by Impax within 5 days of the due date, and Shire
may not fill any orders for Shire or its affiliates, if doing so would interfere ~ith filling Impax's
orders; and
4. . Shire may not seek an allocation of amphetamine purchase quota from the Drug
Enforcement Administration ("DEA") iil any way that would adversely affect Shire's ability to
fill Impax's orders.
IT IS FURTHER ORDERED, pursuant to N.Y. C.P.L.R. 6301, that, pending the hearing
of this motion:
1~ Shire must immediately, and no later than two business days after entry of this
order, deliver product to fill all orders placed by Impax specifying delivery dates in February and
March 2010; and
2. Shire is required to use any additional DEA procurement quota resulting from
DSM Pharmaceuticals, Inc.'s October request to manufacture products to filllmpax's
outstanding orders.
IT IS FURTHER ORDERED that service via e-mail and overnight mail of a copy ofthis
Order to Show Cause, together with the papers upon which it is granted, on Defendants'
Associate General Counsel, Scott Applebaum, at 725 Chesterbrook Blvd., Wayne, PA 19087
5637, on or before the day of , 2010, shall be deemed good and
sufficient; and it is further
ORDERED that answering papers, if any, are to be served on Plaintiff s counsel, Asim
M. Bhansali, Keker & Van Nest LLP, 710 Sansome Street, San Francisco, CA 94i i i, bye-mail
and overnight mail on or before the __ day of , 2010; and it is further
ORDERED that reply papers, if any, are to be served on Mr. Applebaum bye-mail and
overnight mail on or before the __ day of ,2010; and it is further
ORDERED that oral argument shall be required on the return date of this motion; and it
is further
ORDERED that, for good cause shown, in to order to protect confidential information
including sensitive competitive information and/or trade-secret information, Plaintiff may file
2517501.01
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under seal unredacted copies of the Complaint and Jury Demand and exhibits thereto,
Emergency Affirmation of Asim M. Bhansali,datedOctober 30,2010, the Transmittal
Mfirmation ofAsim M.Bhansali dated October 30, 2010, the Affidavit of Todd Engle sworn to
on September 29, 2010 and the exhibits thereto, the Affidavit of Charles Hildenbrand sworn to
on October 29, 2010 and the exhibits thereto, and Plaintiffs Memorandum of Law dated October
30,2010, provided that Plaintiff is directed to file publicly within __ days copies of the
foregoing materials from which confidential material has been redacted.
ENTER:
Rule 130-1.1 Certification ,.-, (/)
CVQ;i¥\ lJ1i 13Jv/Ji!)1..1(1/~ / I ~ Asim M. Bhansali I 0/. Paula L. Blizzard (Pro Hac Vice Application
Forthcoming) SharifE. Jacob (Pro Hac Vice Application
Forthcoming) 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
Jonathan Bach Cooley LLP 1114 Avenue of the Americas New York, NY 10036 (212) 479-6000
3517501.01
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'. :,,~_ .... ~"'.:;"': ".~~'::::,-~;:- ..:_:::';j::~:-;':::-~:::':-:':': _e· i.~
: 3. Shire must fill orders placed by Impax within 5 days of the due date, and Shire
ot fill any orders for Shire or its affiliates, if doing so would interfere with filling Impax's
4. Shire may not seek an allocation of amphetamine purchase quota from the Drug
rcement Administration ("DEA") in any way that would adversely affect Shire's ability to
IT IS FURTHER ORDERED, pursuant to N.Y. c.P.L.R. 6301, that, pending the hearing
1. Shire must immediately, and no later than two business days after entry ofthis
.r, deliver product to fill all orders placed by Impax specifYing delivery dates in February and
2. Shire is required to use any additional DEA procurement quota resulting from
M Pharmaceuticals, Inc.'s October request to manufacture products to fill Impax's
.••... >r::/':.~4~standing orders.
IT IS FURTHER ORDERED that service via e-mail and overnight mail of a copy of this
;Order to Show Cause, together with the papers upon which it is granted, on Defendants'
Associate General Counsel, Scott Applebaum, at 725 Chesterbrook Blvd., Wayne, PA 19087,
f
5637, on or before the __ day of , 2010, shall be deemed good and
J,Sufficient; and it is further.. . . .
'O~ ORDERED that answenng papers, if any, are to be served on Plamtlf:fs counsel, ASllTI
:. " \ M. Bhans~li, Kek~r & Van Nest LLP, 710 Sansome Street, San Francisco, CA 9411 ~' .bYe-mail
~ and overnIght mad on or before the __ day of ,2010; and It IS further
.' cjSu ORDERED that reply papers, if any, are to be served on Mr. Applebaum bye-mail and
_______, 2010; and it is further
ORDERED that oral argument shall be required on the return date of this motion; and it
ORDERED fumt ~~wn~:~~~~ ~~~~onnation including sensitive competitive information and/or trade-secret information, Plaintiff may file
2
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er seal unredacted copies ofthe Complaint and Jury Demand and exhibits thereto,
;¢rgency Affirmation ofAsim M. Bhansali, dated October 30,2010, the Transmittal
mnation of Asim M. Bhansali dated October 30, 2010, the Affidavit of Todd Engle sworn to
;'September 29,2010 and the exhibits thereto, the Affidavit of Charles Hildenbrand sworn to
(October 29,2010 and the exhibits thereto, and Plaintiffs Memorandum of Law dated October
, 2010, providelfhat Plaintiff is directed to file publicly within __ days copies of the
egoing mate~als from which confidential material has been redacted. f1..tz- ...(', Ie s ~a it -:be' ;'.dlfYf (is +tJ11te O~/the/p,NTER: '~5 to tl/~.fl1rar'; (ITIJ r1Net(£ 0~ veeire! () r ~f'r _
. t?SI~~<f~ ~N UJ r,hN5, Uf67f
. prf~ () f f¥- j ft Rule 130-1.1 Certification err:~~$:;~ 1\
~an~1 ~d/fJ) .. Ai
tE)lYrf r(!;;'&,rJ\d · Paula L. Bliz~ard (Pro Hac Vice Application
Forthcommg) SharifE. Jacob (pro Hac Vice Application
V Forthcoming)
710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
Jonathan Bach CooleyLLP 1114 Avenue of the Americas New York, NY 10036 (212) 479-6000
3
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4
DoclIlllcn12
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Plaintiff, ORDER TO SHOW CAUSE WITH A TEMPORARY RESTRAINING ORDER
-against-FEE
ORAL ARGUMENT REQUESTED PAID NOV .. 12010
Defendants. COUNT~EClN YORI<; .
LERv,s . 1\ Of:F/Cl
Upon reading and filing ofPlaintiff Impax Laboratories, Inco's ("Impax's")
randum of Law, the Emergency Affinnation of Asim M. Bhansali dated October 30,2010,
~smittal Affinnation ofAsim M. Bhansali dated October 30, 2010, the Affidavit of Todd
Sworn to on October 29,2010 and the exhibits thereto, the Affidavit of Charles ~. .
. and sworn to on October 29, 2010 and the exhibits thereto, and the Affidavit ofAsim
,sali sworn to on October 30, 2010 and the exhibits thereto, and sufficient grounds
'en shown, let Shire LLC and Shire Laboratories, Inc. (collectively, "Shire") or their
how cause before this Court, at Part&, Room ~"1-,-in the Courthouse at
\'lft ~NewYork,NewYorkon II {Aj[O , 2010, at
¢/p.m. or as soon thereafter as counsel may be heard, why an order should not be
ant to N.Y. C.P.L.R. 6301 granting a preliminary injunction ordering that:
Shire is prohibited from filling any orders for Shire or its affiliates until it has
/'ining orders placed by Impax that have come due;
.§hire must immediately, and no later than 45 calendar days after entry of this
placed by Impax that have come due;
1
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3. Shire must fill orders placed by linpax within 5 days ofthe due date, and Shire
may not fill any orders for Shire or its affiliates, if doing so would interfere with filling Impax's
orders; and
4. Shire may not seek an allocation of amphetamine purchase quota from the Drug
Enforcement Administration ("DEA") in any way that would adversely affect Shire's ability to
fill Impax's orders.
IT IS FURTHER ORDERED, pursuant to N.Y. C.P.L.R. 6301, that, pending the hearing
of this motion:
1. Shire must immediately, and no later than tw usiness days after entry of this
specifYing delivery dates in February and
ditional DEA procurement quota resulting from
quest to manufacture products to filllinpax's
, ~ Jl l '( \V1 (}. ~ ( \ to
.ght-mail of a copy of this
Scott Applebaum, at 725 Chesterbrook Blvd., Wayne, PA 19Q5.1.,..
________' 2010, shall be deemed good and
2010; and it is further
lebaum bye-mail and
,2010; and l' nher
________~,
be served on Mr. A
2
of-------->..-----r---
o
er to Show Cause, together with the papers upon which it is granted, on DefeIldan~
ERED that oral argument shall be required on the return date of this motion; and it
D fuat:C ::~~:~~r ~~!O~~i:forrnatiOn
, .' ORDERED that answering papers, if any, are to be served on Plaintiff's coun
%:iate General Counsely
utstanding orders.
, IT IS FURTHER ORDERED that service via Ii: mail :md
2. Shire is required to use any
',SM Pharmaceuticals, Inc.'s October
order, deliver product to fill all orders placed by Imp
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'. ~TrO(LNet(~ '.', rJl~{~:t-f->
..'-JiIe f,rf''''''''''.''''''.' r ... AI
, eJ) (,L1 'r .'
'r-- I
under seal unredacted copies of the Complaint and J Demand and exhibits thereto,
Emergency Affinnation of Asim M. Bhansali, ated October 30, 2010, the Transmittal
Affinnation of Asim M. Bhansali dated tober 30, 201 0, the Affidavit of Todd Engle sworn to
on September 29,2010 and the exhi . s thereto, the Affidavit of Charles Hildenbrand sworn to
on October 29, 2010 and the exh' its thereto, and Plaintiffs Memorandum of Law dated October
30,2010, provided that Plain· is directed to file publicly within __ days copies of the
foregoing materials from .ch confidential material has been redacted.~ -PI Ie s ha' t -:be
~'eJ«f {)5 +tJ111f (J~~/~I{NTER' IRA-GAMMERMAN 1JOC~5 ~ a/~.P1ar:;· V
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Forthcoming) 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
Jonathan Bach Cooley LLP 1114 Avenue of the Americas New York, NY 10036 (212) 479-6000
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0575739.06 MMc~~~ARTICLES OF MERGER Trey Grayson .OF Secretary ofState
SHIRE LABORATORIES, INC. Received' and Flied INTO 12116120062:29:08 PM
SHlRELLC Fee Recefot: $50.00
. pursuant to the provisions of Section 275.360 of the Kentucky Limited Liability ComP!illY Act, KRS §275.00l. el seq., and Section 264 of the O~meral Corporation Law of the. State of Delaware, 8 DeJ.C. §101. el seq., SHIRE LABORATORIES, INC.; a corp<>ratron existing under the laws of the State of Delaware (the "Merged Entity'~, and SHIRE LLC, a limited liability company existing under the laws of the State of KentUcky (the "Surviving Entity") (the Merged Entity and the· Surviving Entity are referred to collectively as the "Constituent Entities"). adopt the following Articles of Merger for the pmpose of merging the Merged Entity into tOe Surviving Entity: . .
1. . Entities. The Merged Entity shall .be merged with and into the Surviving Entity (the "Merger") and the Surviving Entity will continue its· existence as th~
. surviving company in its prest;nt fonn and. under the name "Shire LLC" pursuant to the.provisions ofthe Kentucky Revised Statutes.
2. Agreement and Plan of Merger. The Agreement and Plan of Merger ("Plan of Merger") is set forth in Exhibit A, 'which is attached hereto and incorporated by reference herein, as approved by the Board of Director~ of t4e Merged Entity in accordance with Section 264 of t~e General Corporation Law of the State of Delaware and by the Board of M<P1agers of the Surviving Entity .jn accordance' with Section 275.350 of the Kentucky Limited Liability Company Act.
3. Compliance With Laws. As of the time of the filing of the Artj·cies of Merger, the Constituent 'Entities have complied with the laws of the states un<kr which they . exist and the laws ofthose states permit !he above referenced Merger.
. 4. Merger Authorized, By written consent dated December l£, 2006, the Pjan of Merger was approved by the sole stockholder ofthe Merged Entity and by written consent dated December .1[., 2006. the Plan of Merger was approved by the sole m·ember of the Surviving EntitY.
5. Effective Time. The Merger shall become, effective on Decemb.er 15, 20(16 at 11 :59 p.m" Eastern Standard Time....
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· IN WITNESS WHEREOF, the Constituent Entities have executed the Articles of Merger on this .!L. day ofDecember, 2006.· .
MEROEp ENTITY: SURVIV~GENTITY:
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as ofDecember ~ 2006 (this "Agreement"), between Shire Laboratories Inc., a Delaware corporation (the "DClaware Corporation"). and Shire LLC, a Kentucky limited Iiability.company (the "Kentucky LLC''). .,'
WITNESSETH: . I
WHEREAS. the Kentucky LLC desires to acquire the properties and.other assets, and to assume all ofthe liabilities and obligations, of the Delaware Corporation by means of a merger ofthe Delaware Corporation with and into the . Kentucky LLC;
WHEREAS, Section 275.345 of the Kentucky Limited Ljab~lity Company Act, KRS §275.001. et seq. (the "nLCA"), and Section 264 ofthe General Corporation Law ofthe State ofDelaware, 8 DeI.C. §lOl, etseq. (the "DGCL"), authorize the merger ofa Delaware corporation with and into a Kentucky limited Ilability company;
WHEREAS, the Delaware Corporation and the Kentucky LLC now desire to merge (the "Merger"), following which the Kentucky LLC shall be the . ,
surviving entity;
WHEREAS, the Delaware Corporation's Certificate ofIncorporation and Bylaws pennit, and resolutions adopted by the Delaware Corporation's Board of., Directors authorize, this Agreement and the consummation oftbe Merger; and
WHEREAS, the requisite nwnber'ofmembers ofthe Kentucky LLC have approved this Agreement and the consuOunation ofthe Merger.
NOW TIIEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1 lHeMERGER
Section l.O1. The Merger. (a) After satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger, as the Delaware . Corporation and the Kentucky LLC shall determine, the Kentucky LLC, which shall be the surviving entity, shall merge with the Delaware Corporation and shall file a certificate ofmerger (the "Certifj(:ate of Merger") with the Secretary of State of the State ofDelaware and articles ofmerger with the Secretary ofState of the State ofKentucky (~6 "Articles of Merger") and make all other filings or recordings required by Delaware or Kentucky law in connection with the Merger. The Merger shall become effective on December 15,2006 at 11:59 p.m., Eastern Standard Time (the "Effective Time"), which such date and time shall to the
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extent necessary or appropriate be specified in the Certificate ofMerger andlor the Articles of Merger•.
(b) At the Effective Time, the Delaware Corporation shall be merged with and into the Kentucky LLC, whereupon the separate existence ofthe Delaware Corporation shall cease, and the Kentucky LLC shall be the surviving entitY ofthe Merger (the "Surviving LLC") in accordance with Section 275.345 ottbe KLLCA and Section 264 of the DOCL.
Section 1.02. Cancellation ofStock; Conversion oflnterests. At the Effective Time: (a) Each share ofcapital stock ofthe Delaware Corporation outstanding inunediately prior to the Effective Time shall, by virtue ofthe Merger and without any action on the part of tile holder thereof, be canceled and no consideration shall be issued in respect thereof; and .
(b) Each limited liability company interest in the Kentucky LLC . outstanding immediately prior to the E:fThctive Time shall, by virtue ofthe Merger
and without any action on the part ofthe holder thereof, remain unchanged and continue to remain'outstanding as a limited liability company interest in the Surviving LLC.
ARTICLE~
THE SURVIVING LIMITED LIABILITY COMPANY
Section 2.01. Artlc/es ofOrganization and Dec/aration. The articles of organization and declaration of the Kentucky LLC in effect,at the Effective Time shall be the articles ofor~lInizationlind declaration ofthe Surviving LLC unless and until amended in accordance with their terms and applicable law. The name of the Surviving LLC shaH be "Shire LLC".
ARTICLE 3 TRANSFER AND CONVBYANCE OP AssEts AND ASSUMPTION Of LIABILITIES
Section 3.01. Transfer, Conveyance andAssumption. At the Effective Time, the Kentucky LLC shall continue in existence as the Swviving LLC, and without further transfer, succeed to and possess all of the rights, privileges and powers of the Delaware Corporation, and aJI ofthe assets and property of whatever kind and character of the Delaware Corporation shall vest in the Kentucky LLC without further act or deed; thereafter, the Kentucky LLC, as the Surviving LLC, shall be liable for all of the liabilities and obligations ofthe Delaware Corporation, and any claim or judgment against the Delaware Corporation may be enforced against the Kentucky LLC,IIS the Surviving"LLC, in accordance with Section 275.365 of the KLLCA and Section 264 oftbe DGCL.
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Section 3.02. Further Assurances. If at any time the Kentucky LLC shall consider or be advised that any further. assignment, conveyance or assurance'is necessary or advisable to vest, perfect or CQnfirm ofrecord in the Surviving LLC the title to any property or right of the Delaware Corporation, or otherwise to cany out the provisions hereof, the proper representatives of the Delaware Corporation as ofthe Effective Time shall execute and deliver lJIlY and aU proper
.. deeds, assignments and assurances and do al1 things necessary or proper to·vest, perfect or convey title to such property or right in the Surviving LLC, and otherwise to carry out the provisions hereof.
ARTICLE4 ' CONDITIONS TO THE MERGER
Section 4.01. Conditions To The Obligations OfEach Party. The obligations of1he Kentucky LLC ana the Delaware Corporation to consummato the Merger are subject to the satisfaction ofthe following conditions as of the Effective Time:
(a) no provision ofany applicable law or regulation and no judgment, injunction, order or decree shall prohibit tbe conswnmation ofthe Merger; "
(b) a1l actions by or in respect ofor filings with any governmental body, agency, official or authority required to permi~ the consununation oflhe Merger shall have been obtained; and
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(c) this Agreement shall have been a~opted by the requisite number of the stockholders oft'he Delaware Corporation required by and ill accordance with applicable Jaw.
ARTICLE 5 TERMINATION
Section 5.01.· Termination. This Agreement may be tenninated and the Merger may be abandoned at any time prior to the Effective Time:
, (a) by mutual written consent of1he Kentucky LLC and the Board of Directors of the Delaware Corporation; or .
(b) by either the Kentucky LLC or the Board of Directors of the Delaware Corporation, if there shall be any low or regulation that makes consummation of the Merger iJlegal or otherwise prohibited, or if any judgment, injunction, order or decree enjoining the Delaware Corporation or the Kentucky LLC from consummating the Merger is entered and such judgment, injunction, order or decree shall become final and nonappealable.
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ARTICLE 6 MISCELLANEOUS
Section 6.01. Survival ofRepresentations and Warranties. .The . representations and warranties and agreements contained in any certificate or otber writing delivered pursuant hereto shall not survive the Effective Time or the termination of this Agreement
Section 6.02. Amendments; No Waivers. (a) Any provisions oftbis Agreement may, subject to applicable law, be amended or waived prior to the Effective Time if, and only if, such amendment or Waiver is in writing and signed by the Kentucky LLC and by the Delaware CoiporaU~n.
(b) No failure or delay by any party hereto in exercising any right, . power or privilege hereunder shall operate as a waiver thereofnor shall.any single
or partial exercise thereof preclude any other or further exercise thereofor the exercise ofany othe~ right, power or privilege. The rights and remedie's herein provided shall be cUDlUlative and not exclusive ofany rights or remedies-provided by la.w. I
Section 6.03. Integration. All prior or contemporaneous agreements, contracts, promises, rep~sentations, and statements, if any, between the Delaware Corporation and the Kentucky LLC, or their representatives. are merged into this Agreement, and this Agreement shaU constitut~ the entire understanding between the Delaware Corpo.ration and the Kentucky LLC with respect to the subject matter hereof.
Section 6.04. Successors andAssigns. The provisions of this Agreement shall be binding upon and inure to tbe benefit ofthe parties: hereto and their respective successors and assigns, provided that no party may assign, delegate or otherwise transfer any of Its rights or obligations under this Agreement without fue consent ofthe other party hereto.
I
Section 6.05. Governing Law. This Agreement shall be governed by and construed' in accordance with the laws ofthe State ofDelaware, without regard to principles ofconflicts oflaws. .
Section 6.06. Counterparts; FJfectiveness. This Agreement may be signerl in any number of counterparts, each ofw1).ich shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instnunent. This Agreement shall become effective when each party hereto shall have received the counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOFt the parties hereto have caused this Agreement to be duly executed by their respective, authorized representatives as of the day and year first above written; ,
SHlRE LABORATORlES INC.
By:
, ,
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