EXHIBIT 2.2
CONFORMED COPY
AMENDMENT TO PURCHASE AGREEMENT
AMENDMENT (the "Amendment"), dated as of October 1, 2001, to the
Purchase Agreement, dated as of June 7, 2001 (the "Purchase Agreement") by and
among E.I. du Pont de Nemours and Company, a Delaware corporation ("DuPont"),
DuPont Pharma, Inc., a Delaware corporation ("DPI"), DuPont Pharmaceuticals
Company, a general partnership formed under the laws of the State of Delaware
("DPC"), DuPont Electronic Materials, Inc., a Delaware corporation ("DE "),
DuPont Diagnostics Inc., a Delaware corporation ("DDI"), and Xxxxxxx- Xxxxx
Squibb Company, a Delaware corporation ("Buyer").
WHEREAS, the parties hereto desire to amend the Purchase Agreement
as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, and
intending to be legally bound hereby, the parties hereto hereby agree a
follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein shall have the meaning assigned to such
term in the Purchase Agreement. Each reference to "hereof," "herein," "
hereunder," "hereby" and "this Agreement" shall from and after the date hereof
refer to the Purchase Agreement as amended by this Amendment. Notwithstanding
the foregoing, the date of the Agreement, as amended hereby, shall in all
instances remain as June 7, 2001, and references to "the date hereof" and "the
date of this Agreement" shall continue to refer to June 7, 2001.
SECTION 2. Use of Names. Section 5.7 of the Purchase Agreement is
hereby amended and restated to read in its entirety as follows:
"5.7 Names. (a) Buyer agrees that it shall, and shall cause the
Transferred Business Companies to, cease to make any use of the name
"DuPont," and any Trademarks related thereto or containing or comprising
the foregoing, including any name or xxxx confusingly similar thereto or
dilutive thereof (the "DuPont Marks") as soon as reasonably practicable
after the Closing Date and in any event (i) within 180 days after the
Closing Date in the case of the United States, (ii) within 210 days after
the Closing Date in the case of Canada and the Member States, and (iii)
within 15 months after the Closing Date in the case of countries other
than the United States, Canada or the Member States and in the case of
countries outside the United States, Canada or the Member States, Buyer
shall, and shall cause the Transferred Business Companies to, effect all
necessary governmental filings in connection therewith within 120 days
after the Closing Date (each period set forth in clause (i), (ii) and
(iii) of this sentence, the applicable "Use Period").
(b) Buyer agrees that it shall, and shall cause the Transferred
Business Companies to, within one Business Day of the Closing Date, (i)
subject to the other provisions of this Section 5.7, cease to hold itself
out as having any affiliation with DuPont or any of its Subsidiaries, and
(ii) in the case of any Transferred Business Company whose name includes
any XxXxxx Xxxx to change its corporate name to a name that does not
include any XxXxxx Xxxx and to make any necessary legal filings with the
appropriate Governmental Authority to effectuate such change.
(c) Subject to the other provisions of this Section 5.7, DuPont
hereby expressly agrees that during the applicable Use Periods, Pharma
Japan will have the right to sell any pharmaceutical products ordered
from it prior to September 20, 2001 that include DuPont Marks, including
products manufactured pursuant to a toll manufacturing agreement with
Sankyo Yell Yakuhin Co., Ltd. that include the name "DuPont".
(d) In furtherance of the foregoing, as promptly as reasonably
practicable but in no event later than the end of the applicable Use
Period, Buyer shall, and shall cause its Subsidiaries to, remove, strike
over or otherwise obliterate all DuPont Marks from (or otherwise not use)
all materials owned by any of the Transferred Business Companies,
including, without limitation, any vehicles, business cards, schedules,
stationery, packaging materials, displays, signs, promotional materials,
manuals, forms, computer software and other materials or media including
any Internet usage or domain names that include the DuPont Marks;
provided that Buyer and the Transferred Business Companies may during
such Use Period continue to use any material containing a XxXxxx Xxxx to
the extent that it is not reasonably practicable to remove or cover up
such XxXxxx Xxxx.
(e) Notwithstanding the foregoing provisions of this Section 5.7,
Buyer and the Transferred Business Companies shall have a right to sell
off existing inventory of products manufactured or packaged by or for any
of the Transferred Business Companies, which products bear any DuPont
Marks and which are packaged with package inserts that have been packaged
as of the Closing Date; provided, however, that Buyer and the Transferred
Business Companies may use the DuPont Marks pursuant to this Section
5.7(e) solely and only until the applicable expiration date of each such
respective product.
(f) Any use of the DuPont Marks by Buyer pursuant to this Section
5.7 shall be in reasonable conformity with the practices of DuPont as of
the Closing Date and shall be in a manner that is not intended to or is
not reasonably likely to harm or disparage DuPont or the reputation or
goodwill of the DuPont Marks. Notwithstanding the foregoing, nothing in
this Section
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5.7 shall be construed to require, or to permit, Buyer to take, or fail
to take, any action which is in violation of the rules and regulations of
the Food and Drug Administration.
"Member States" shall mean the 15 members states of the European
Union as of the date hereof, consisting of Austria, Belgium, Denmark,
Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the
Netherlands, Portugal, Spain, Sweden and the United Kingdom. "
SECTION 3. Manati Sewer Easement. On the Closing Date, DuPont and
DPL shall execute the Easement attached as Schedule I hereto (the "Easement"),
provided that the Easement shall be held in escrow and not be delivered or
recorded until both DuPont and Buyer shall have approved both the location of
the easements granted thereby and the accuracy of the descriptions of, and the
Plan showing, the easements attached or to be attached thereto, such approvals
not to be unreasonably withheld or delayed. Subject to release of the Easement
from escrow, the definition of "Related Agreement" in Section 1.1 of the
Purchase Agreement is hereby amended by adding the Easement to such
definition. Subject to release of the Easement from escrow, Schedule 1.1(i) to
the Purchase Agreement is hereby amended by adding the Easement to such
Schedule.
SECTION 4. DuPont Sankyo Pharmaceuticals Co., Ltd. (a)
Notwithstanding the second recital in the Purchase Agreement, the parties
acknowledge that (i) DPC is the record and beneficial owner of common stock of
DuPont Sankyo Pharmaceuticals Co., Ltd. ("Pharma Japan") representing 50% of
the outstanding shares of common stock of Pharma Japan, and (ii) Sankyo Co.,
Ltd. is the record and beneficial owner of the remaining shares of common
stock of Pharma Japan. DuPont represents and warrants that there are 1,000
shares of common stock of Pharma Japan outstanding and that DPC is the record
and beneficial owner of 500 shares of common stock of Pharma Japan.
(b) Section 2.1(a)(i)(G) of the Purchase Agreement is hereby deleted
in its entirety and the reference to the common shares of Pharma Japan is
deleted from the definition of "Controlled Foreign Subsidiary Shares".
SECTION 5. DuPont Pharma, Ltd. Notwithstanding the eighth recital in
the Purchase Agreement and the provisions of Section 2.1(a)(v), the parties
agree that upon the terms and subject to the conditions of the Agreement, on
the Closing Date, DEMI and DDI shall sell, convey, assign, transfer and
deliver to Xxxxxxx-Xxxxx Squibb Manufacturing Company, and Xxxxxxx-Xxxxx
Squibb Manufacturing Company shall purchase, acquire and accept from DEMI and
DDI, all of the DPL Shares, free and clear of all Encumbrances.
SECTION 6. DuPont Pharmaceutical Research Labs, Inc. The fourth
sentence of Section 3.3(a) of the Purchase Agreement is hereby amended to read
in its entirety as follows: "The authorized capital stock of DPRL consists of
2,000 shares of common stock, of which 1,000 shares are issued and
outstanding". Schedule 3.3(c) to the Purchase Agreement is hereby amended to
provide that (i) the
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authorized capital stock of DPRL consists of 2,000 shares of common stock,
(ii) the outstanding capital stock of DPRL consists of 1,000 shares of common
stock and (iii) the sole record owner of the 1,000 outstanding shares of
common stock of DPRL is DPI.
SECTION 7. DuPont Pharma S.A. (Spain). Schedule 3.3(c) to the
Purchase Agreement is hereby amended to provide that the outstanding capital
stock of Pharma Spain consists of 773,392 common shares.
SECTION 8. DuPont Pharma Italia S.r.l. Schedule 3.3(c) to the
Purchase Agreement is hereby amended to provide that the outstanding capital
stock of Pharma Italy consists of 8,263,320 quotas, held 95% by DPC and 5% by
Pharma UK.
SECTION 9. DuPont Farmaceutica Ltda. Schedule 3.3(c) to the Purchase
Agreement is hereby amended to provide that the outstanding capital stock of
Pharma Brazil consists of 106,348 quotas.
SECTION 10. Additional Patent. Schedule 3.14(a)(i) to the Purchase
Agreement is hereby amended to add the patent case listed at Docket Number CR
8171 as set forth on Schedule II hereto; provided, that such addition shall
not be construed as an admission by Buyer that no other updates in the dockets
of Patents (or any other Intellectual Property) owned by the Transferred
Business Companies have occurred in the ordinary course of business since the
date of the Purchase Agreement or that no corrections have been or will be
required pursuant to Section 3.14(f) of the Purchase Agreement. Schedule
5.20(a)(ii)(B) is hereby amended to add the patent case listed at Docket
Number CR 8171 as set forth on Schedule II hereto.
SECTION 11. Compound Samples. Schedule 1.1(d) to the Purchase
Agreement is hereby amended to include the additional compound samples set
forth on Schedule III hereto.
SECTION 12. Corrections to Patent Schedules.
(a) Additional Cozaar/Hyzaar/Fortzaar Patents. Schedule 1.1(c) to
the Purchase Agreement is hereby amended to add the Cozaar/Hyzaar/Fortzaar
patent cases listed at Docket Numbers XX 0000, XX 6508, DM 6623, and DM 6625
as set forth on Schedule IV hereto. Schedule 3.14(a)(i) to the Purchase
Agreement is hereby amended to delete all references to Cozaar/Hyzaar/Fortzaar
patent cases listed at Docket Numbers XX 0000, XX 6508, DM 6623, and DM 6625
as set forth on Schedule IV hereto. Schedule 5.20(a)(i)(B) to the Purchase
Agreement is hereby
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amended to add the Cozaar/Hyzaar/Fortzaar patent cases listed at Docket
Numbers DM 6623 and DM 6625 as set forth on Schedule V hereto.
(b) Correction of Cozaar/Hyzaar/Fortzaar Patents. Schedule 1.1(c) to
the Purchase Agreement is hereby amended to delete lines 252 and 253, which
are now-abandoned patent cases in Canada and Japan listed with no Docket
Number, and to correct the date in line 251 at column G, by replacing
"1/29/98" with "5/14/98". Schedule 5.20(a)(i)(B) to the Purchase Agreement is
hereby amended to delete lines 107 and 108, which are now-abandoned patent
cases in Canada and Japan listed with no Docket Number, and to correct the
date in line 106 at column G, by replacing "1/29/98" with "5/14/98".
(c) Additional Bile Acid Sequesterant Patents. Schedule
5.20(a)(i)(B) to the Purchase Agreement is hereby amended to add the Bile Acid
Sequesterant patent cases listed at Docket Number CR 9063 as set forth on
Schedule IV hereto.
(d) Deletion of Xxx-2 and Asymmetric Addition Patents. Schedule
3.14(a)(i) to the Purchase Agreement is hereby amended to delete all
references to Xxx-2 and Asymmetric Addition patent cases listed at Docket
Numbers DM 6742 and PH 7168.
(e) Additional Sinemet Agreement. Schedule 5.20(a)(ii)(A) to the
Purchase Agreement is hereby amended to add the Amendment to Sinemet
Agreement, effective January 1, 2001, between and among Merck, DuPont, and DPC
in the form attached as Exhibit A hereto.
SECTION 13. Domain Name Registrations. Schedule 3.14(a)(ii) to the
Purchase Agreement is hereby amended to add the domain name registrations as
set forth on Schedule VI hereto.
SECTION 14. Intercompany Accounts and Arrangements. Schedule 5.5 to
the Purchase Agreement is hereby amended to add the following agreements
thereto: (i) International Distribution Agreement, dated as of July 1, 1999,
between DPC and DuPont (Australia) Ltd. to be amended in the form attached as
Exhibit B hereto; (ii) Service Agreement, dated as of December 8, 2000, among
DuPont Canada Inc., PerkinElmer Canada Inc. and DuPont Pharma Inc.; and (iii)
the Transfer Agreements (as defined below).
SECTION 15. Agency Agreement/License and Supply Agreement. (a) The
form of Agency Agreement attached as Exhibit C to the Purchase Agreement is
hereby deleted and replaced in its entirety by the form of Agency Agreement
attached as Exhibit C hereto (the "Revised Agency Agreement"), and all
references in the Purchase Agreement to the Agency Agreement shall be deemed
to be references to the Revised Agency Agreement.
(b) The form of License and Supply Agreement attached as Exhibit B
to the Purchase Agreement is hereby deleted and replaced in its entirety by
the
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form of License and Supply Agreement attached as Exhibit D hereto (the
"Revised License and Supply Agreement"), and all references in the Purchase
Agreement to the License and Supply Agreement shall be deemed to be references
to the Revised License and Supply Agreement.
SECTION 16. Exclusion of Lease. Schedule 3.13(b) to the Purchase
Agreement is hereby amended to delete the lease listed as item number 12
(Itasca, IL). Every other Schedule to the Purchase Agreement in which
reference is made to such lease, including, but not limited to, Schedule
5.20(a)(ii)(A) to the Purchase Agreement, is hereby amended to delete such
reference. Schedule 1.1(f) to the Purchase Agreement is hereby amended to add
the Real Property governed by such lease.
SECTION 17. Conflicts. (a) Unless specifically set forth in a Related
Agreement or a Transfer Agreement, as applicable, in the event of a conflict
between a provision of the Purchase Agreement and a provision of a Related
Agreement or a Transfer Agreement, the terms of the Purchase Agreement shall
be controlling (it being understood and agreed that in the case of the Agency
Agreement, the provisions of Section 13.9 of the Agency Agreement shall govern
in the event of any conflict between the Agency Agreement and the Purchase
Agreement).
(b) For purposes of this Amendment, "Transfer Agreement" shall mean
any agreement, deed, instrument or other Contract entered into or executed by
and between DuPont and/or DPC and/or any of their Affiliates and Buyer and/or
any of its Affiliates, including any Foreign Buyer Sub, on or prior to the
Closing Date to implement the transfer of (i) the DPC Interests, the DCI
Shares, the DPRL Shares, the DPL Shares, (ii) the Controlled Foreign
Subsidiary Shares, (iii) the Additional Transferred Assets or (iv) the
Excluded Assets.
SECTION 18. Tax Indemnification. (a) The first sentence of Section
6.1(a) of the Purchase Agreement is hereby amended by deleting the words "or
accrued" from the first proviso thereof. Section 6.6(a) of the Purchase
Agreement is hereby amended by deleting the words "or accrued" from clause (x)
thereof.
(b) At or prior to the closing of the sale of Pharma UK, Pharma UK
will sell all of its shares of the stock of Pharma Italy to Bristol Xxxxx
Squibb S.p.A., a company organized under the laws of Italy (the "UK Sale").
Any Taxes incurred by Pharma UK as a result of the UK Sale will be treated as
Taxes incurred by Pharma UK relating to a Pre-Closing Tax Period, and as a
result, DuPont shall indemnify and hold harmless Buyer and its Affiliates
against any such Taxes pursuant to Section 6.1(a) of the Purchase Agreement.
For purposes of Section 6.1(a) of the Purchase Agreement and any other
relevant provisions of the Purchase Agreement (i) the
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entire amount of any Taxes incurred by Pharma UK upon the UK Sale shall be
treated as exceeding the Foreign Tax Threshold Amount and (ii) the entire
amount of any Taxes incurred by Pharma UK upon the UK Sale shall not be taken
into account in determining whether the Foreign Tax Threshold Amount has been
exceeded with respect to DuPont's obligation under Section 6.1(a) to indemnify
against any other Taxes.
SECTION 19. Caribe DC Plan. Section 5.11(h) of the Purchase
Agreement is hereby amended and restated to read in its entirety as follows:
"(h) Caribe DC Plan. Unless otherwise agreed to by Buyer and DuPont,
effective as of the Closing Date, DuPont shall cause the Transferred
Business Companies in Puerto Rico to withdraw as participating
employers in the Caribe DC Plan, and the account balances of all
Transferred Employees in Puerto Rico shall be retained by the Caribe
DC Plan in accordance with the terms of the Caribe DC Plan. As soon
as practicable following the Closing Date, Buyer shall make available
a loan facility to each Transferred Employee participating in, and
having an outstanding loan balance under, the Caribe DC Plan as of
the Closing Date to enable such Transferred Employees to repay such
Caribe DC Plan loans. Immediately following the Closing Date, all
Transferred Employees who, immediately preceding the Closing Date,
were participants in the Caribe DC Plan, shall be automatically
enrolled in the Xxxxxxx-Xxxxx Squibb Puerto Rico, Inc. Savings and
Investment Program. The parties shall fully cooperate in effectuating
the covenants contained herein."
SECTION 20. Canadian Services Agreement. After the Closing Date,
DuPont and Buyer shall use their reasonable efforts to cause DuPont Canada,
Inc., a Canadian corporation ("XxXxx"), PerkinElmer Canada Inc., a Canadian
corporation ("PerkinElmer"), and DuPont Pharma, Inc., a Canadian corporation
("Pharma Canada"), respectively, to negotiate an amendment to that certain
Service Agreement, dated as of December 8, 2000 and referenced in Section
14(ii) hereof (the "Service Agreement"), among PerkinElmer, XxXxx and Pharma
Canada, which amendment shall be on commercially reasonable terms and shall
relate to the clarification of (i) the price of services provided under the
Service Agreement, (ii) the term of the Service Agreement and (iii) the rights
and obligations of the parties with respect to the early termination of the
Service Agreement.
SECTION 21. Allocation of Closing Purchase Price. The parties agree
that, in accordance with Section 2.5 of the Agreement, the Closing Purchase
Price shall be allocated as set forth in Schedule VII hereto.
SECTION 22. Typographical Corrections to Schedules. (a) The
hand-written reference in Schedule 3.3(c) to the Purchase Agreement under the
heading "Common & Preferred Stock Holdings of the Transferred Business
Companies As Of 4/20/01 Valuation and Ownership" is hereby amended to delete
and replace the reference to Schedule 1.1(c) (the Schedule related to
Cozaar/Hyzaar Patents) with a reference to Schedule 1.1(e) (the Schedule
related to Excluded Assets).
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(b) Schedule 3.20 to the Purchase Agreement is hereby amended to
replace the date of "January 1, 2001" referenced in the disclosure with
respect to the Information Services Agreement between IMS Health Incorporated
and DPC with the date "January 1, 1998 (this agreement is in the process of
being re-negotiated and replaced by an agreement to be in effect from January
1, 2001 to December 3, 2001)".
(c) Item 13 to Schedule 3.4(c) to the Purchase Agreement with
respect to the Agreement between Xxx Pharmaceuticals Products Ltd. and DuPont
Merck Pharmaceuticals Company is hereby amended and restated in its entirety
with the following:
"Agreement between Xxx Pharmaceuticals Products Ltd. and The DuPont Merck
Pharmaceuticals Company dated March 6, 1998, as amended July 20, 1999 and
Xxxxx 00, 0000".
(x) Item 5 to Schedule 3.14(a)(vi) to the Purchase Agreement with
respect to the Agreement between Xxx Pharmaceuticals Products Ltd. and The
DuPont Merck Pharmaceuticals Company is hereby amended to replace the phrase
"as amended" with the words "as amended July 20, 1999 and April 23, 2001".
(e) Schedule 3.14(a)(v) (indicated as Schedule 3.14(a)(D)) to the
Purchase Agreement shall be amended as set forth on Exhibit E hereto.
SECTION 23. No Further Amendment. Except as otherwise provided
herein, the Purchase Agreement shall remain unchanged and in full force and
effect.
SECTION 24. Effect of Amendment. From and after the execution of
this Amendment by the parties hereto, any reference to the Purchase Agreement
shall be deemed a reference to the Purchase Agreement as amended hereby;
provided, however, that any reference to the date of the Purchase Agreement,
the use of the phrase "the date hereof" or "the date of this Agreement" shall
in all cases be a reference to June 7, 2001 and not the date of this
Amendment.
SECTION 25. Miscellaneous. The provisions contained in Article IX of
the Purchase Agreement are incorporated by reference in this Amendment as
though they were more fully set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
E.I. DU PONT DE NEMOURS AND
COMPANY
By: /s/ Xxxx X. Xxxx
Title: Attorney-in-Fact
DUPONT PHARMA, INC.
By: /s/ Xxxx X. Xxxx
Title: Attorney-in-Fact
DUPONT PHARMACEUTICALS
COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Title: Senior Vice-President & General
Counsel
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DUPONT ELECTRONIC MATERIALS,
INC.
By: /s/ Xxxx X. Xxxx
Title: Attorney-in-Fact
DUPONT DIAGNOSTICS INC.
By: /s/ Xxxx X. Xxxx
Title: Attorney-in-Fact
XXXXXXX-XXXXX SQUIBB
COMPANY
By: /s/ Xxxxx Xxxxxxxx
President, Xxxxxxx-Xxxxx Squibb
Company, Oncology and Virology
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