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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT dated as of August 9, 1999
(this "Agreement") is by and between Xxxxxx Pharmaceutical, Inc., a Delaware
corporation ("Xxxxxx"), and Hoechst Corporation, a Delaware corporation
("Hoechst").
W I T N E S S E T H:
WHEREAS, Xxxxxx and Xxxx Xxx Healthcare Group, a Hong Kong
corporation ("CT") entered into an agreement, dated as of May 20, 1994 and
amended on October 13, 1995 (the "JV Agreement"); and
WHEREAS, pursuant to the JV Agreement, Xxxxxx and CT formed
Xxxx Xxx-Xxxxxx Pharmaceutical Limited, a corporation formed under the laws of
the British Virgin Islands (the "BVI Joint Venture"); and
WHEREAS, the BVI Joint Venture has formed, with another
investor, Wuxi Xxxx Xxx-Xxxxxx Pharmaceutical Co., Ltd, a corporation formed
under the laws of the Peoples Republic of China (the "China Joint Venture"); and
WHEREAS, in December 1995, Xxxxxx and Hoechst reached an
agreement that Hoechst would purchase Xxxxxx'x interest in the BVI Joint Venture
for $2,107,000 in cash; and
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, and as a condition and inducement to the willingness of Xxxxxx and
Parent (as defined herein) to enter into the Merger Agreement (as defined
herein), the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Effectiveness of Agreement; Sale of Ownership Interest.
This Agreement is being entered into in connection with the Agreement and Plan
of Merger, of even date herewith (the "Merger Agreement"), among Xxxxxx, Teva
Pharmaceuticals USA, Inc. ("Parent") and Caribou Merger Corporation ("Merger
Sub"), and the Stockholder Agreement, of even date herewith (the "Stockholder
Agreement"), among Hoechst, Parent and Merger Sub. At any time prior to the six
month anniversary of the date on which Merger Sub first accepts shares of
Xxxxxx'x common stock for payment pursuant to the Offer, at the written request
of Xxxxxx (the "Put Request"), Hoechst shall as promptly as practicable, but in
any event within ten business days following delivery of the Put Request,
purchase all of Xxxxxx'x ownership interest in the BVI Joint Venture. At the
closing of such purchase (the "Closing"), Hoechst shall deliver to Xxxxxx
U.S.$2,107,000 in immediately available funds, by wire transfer to an account
designated by Xxxxxx, and Xxxxxx shall deliver to Hoechst appropriate
instruments of transfer.
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2. Assumption and Indemnification. Effective as of the
Closing, Hoechst shall assume, and agrees to indemnify Xxxxxx and Parent
against, any and all liabilities of Xxxxxx or Parent as of the Closing in
respect of or arising out of the JV Agreement, the BVI Joint Venture or the
China Joint Venture, including any such liability arising out of any termination
of the JV Agreement, any assignment thereof to Hoechst or the exercise by Xxxxxx
of its rights under Section 1 hereof. Hoechst shall have the right to control,
and, at Hoechst's expense, Xxxxxx shall reasonably cooperate with Hoechst in
connection with, the defense of any claim in respect of which Xxxxxx may seek
such indemnification. Xxxxxx shall not settle any such claim without Hoechst's
prior consent (which shall not be unreasonably withheld or delayed).
3. Liabilities. Until the earlier of the Closing or the
expiration of Xxxxxx'x right to deliver the Put Request without such right
having been exercised, Xxxxxx shall not agree to incur any liabilities in
respect of or arising out of the JV Agreement, the BVI Joint Venture or the
China Joint Venture, without the prior written consent of Hoechst. In addition,
at all times after the date hereof, Xxxxxx shall take such reasonable action as
Hoechst may request in order to minimize liabilities assumed under Section 2
hereof, or any liabilities of Hoechst in respect of or arising out of the JV
Agreement, the BVI Joint Venture or the China Joint Venture and incurred on or
after the Closing, and Hoechst agrees to appropriately compensate Xxxxxx for
Xxxxxx'x cost in taking any such action.
4. Representations and Warranties of Xxxxxx. Xxxxxx hereby
represents and warrants to Hoechst as follows:
(a) Xxxxxx is duly organized and validly existing under the
laws of the State of Delaware and is in good standing under the laws of the
State of Delaware. Xxxxxx has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly and validly executed and
delivered by Xxxxxx and constitutes the valid and binding agreement of Xxxxxx,
enforceable against Xxxxxx in accordance with its terms except (i) to the extent
limited by applicable bankruptcy, insolvency or similar laws affecting creditors
rights and (ii) that equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may be
brought.
(c) To Xxxxxx'x knowledge, (i) Xxxxxx'x ownership interest in
the BVI Joint Venture represents approximately 49% of the total ownership
interest in the BVI Joint Venture; (ii) the BVI Joint Venture's ownership
interest in the China Joint Venture represents approximately 85% of the total
ownership interest in the China Joint Venture; and (iii) Xxxxxx has no material
liabilities in respect of or arising out of the JV Agreement, the BVI Joint
Venture or the China Joint Venture.
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5. Representations and Warranties of Hoechst. Hoechst hereby
represents and warrants to Xxxxxx as follows:
(a) Hoechst is a corporation duly organized and validly
existing under the laws of the State of Delaware and is in good standing under
the laws of the State of Delaware. Hoechst has all necessary corporate power and
authority to execute and deliver this Agreement and perform its obligations
hereunder.
(b) This Agreement has been duly and validly executed and
delivered by Hoechst and constitutes a valid and binding agreement of Hoechst,
enforceable against it in accordance with its terms except (i) to the extent
limited by applicable bankruptcy, insolvency or similar laws affecting creditors
rights and (ii) that equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may be
brought.
6. Further Assurances. From time to time, at the other party's
request, each party hereto shall execute and deliver such additional documents
and take all such further lawful action as may be reasonably necessary or
desirable to consummate and make effective the transactions contemplated by this
Agreement.
7. Termination. This Agreement is entered into in
contemplation of consummation of the transactions contemplated by the Merger
Agreement. If Merger Sub shall not have purchased all Shares (as defined in the
Merger Agreement) tendered pursuant to the Offer (as defined in the Merger
Agreement), then this Agreement shall terminate automatically upon the
occurrence of a Termination Event (as such term is defined (excluding clause (i)
of such definition) in the Stockholder Agreement). If this Agreement is
terminated, the rights and obligations of Hoechst and Xxxxxx with respect to the
subject matter hereof shall be as they were immediately prior to entering into
this Agreement. Without limiting the generality of the foregoing, termination of
this Agreement shall not extinguish the existing obligation of Hoechst, subject
to any existing conditions to such obligation, to purchase and pay for Xxxxxx'x
interest in the BVI Joint Venture.
8. Miscellaneous.
(a) Subject to Section 7 hereof, this Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Except as otherwise expressly provided herein, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
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(c) This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns and
Parent, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either party without the prior
written consent of the other party and Parent. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(d) This Agreement may not be amended except by a written
agreement executed by each of the parties hereto and Parent. The parties may
waive compliance by the other parties hereto with any representation or
agreement otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party and Parent.
(e) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Hoechst:
Hoechst Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
If to Xxxxxx:
Xxxxxx Pharmaceutical, Inc.
00 Xxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
or to such other address or facsimile number as the party to whom notice is
given shall have previously furnished to the other in writing in the manner set
forth above.
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(f) This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof or of any other jurisdiction.
(g) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(h) This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Hoechst and Xxxxxx have caused this
Agreement to be duly executed as of the day and year first above written.
HOECHST CORPORATION
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXX PHARMACEUTICAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President & CEO
Teva Pharmaceuticals USA, Inc. is executing this Agreement solely for the
purpose of agreeing to be bound by the provisions of Section 3 and the second
and third sentences of Section 2 hereof to the same extent as Xxxxxx is bound by
such provisions.
TEVA PHARMACEUTICALS USA, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
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