FIRST AMENDMENT TO SHARE PURCHASE AGREEMENT
Exhibit
2.2
EXECUTION
VERSION
This Amendment to Share Purchase Agreement (this or the “Amendment”), dated as of
November 26, 2009, by and among Xxxxx Xxxx Holdings Limited, a Malta private limited liability
company (the “Company”), Arrow Pharmaceutical Holdings Ltd., a Malta private limited
liability company and wholly-owned subsidiary of the Company (“APH”), Cobalt Laboratories,
Inc. a Delaware corporation and wholly-owned subsidiary of APH (“Cobalt”), Arrow
International Ltd., a Malta private limited liability company and wholly-owned subsidiary of the
Company (“AIL”), Arrow Supplies Ltd., a Malta private limited liability company and
wholly-owned subsidiary of the Company (“ASL”), Xxxxxx Pharmaceuticals, Inc., a Nevada
corporation (“Parent”), Xxxxxx Pharma S.À.X.X., a Luxembourg private limited liability
company and wholly-owned subsidiary of Parent (“Purchaser”), Xxxxxx Cobalt Holdings, LLC, a
Delaware limited liability company and wholly-owned subsidiary of Parent (“Cobalt
Holdings”), the shareholders of the Company listed on Annex A hereto (collectively, the
“Sellers”), and Xxxxxxx Xxxxxx Xxxxxxxxx, an individual solely with respect to Section 6.15
of the Agreement (as defined below) and related provisions (the “Shareholders’
Representative,” and together with the Company, APH, Cobalt, AIL, ASL, Parent, Purchaser,
Cobalt Holdings and the Sellers, the “parties”).
RECITALS
WHEREAS, on June 16, 2009, the Company, Parent, the Sellers listed on Annex A to the
Agreement on such date and the Shareholders’ Representative entered into the Share Purchase
Agreement (as amended by this Amendment and as it otherwise may be amended, supplemented or
modified from time to time, the “Agreement”);
WHEREAS, the parties hereto desire to amend the Agreement to, among other things, add
additional parties to the Agreement and modify the structure of certain transactions contemplated
by the Agreement; and
WHEREAS, capitalized terms used herein and not defined shall have the meanings assigned
thereto in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereby agree as follows:
1. Each of APH, Cobalt, AIL, ASL, Purchaser, Cobalt Holdings and the Sellers who were not a
party to the Agreement (“New Sellers”) hereby accede to the Agreement. Each of the New
Sellers assumes all obligations of a “Seller” under the Agreement and shall be assigned a pro rata
interest in the relevant rights of a Seller under the Agreement, in each case to the same extent as
though they had been a party to the Agreement as initially entered into.
2. The definition of “Excluded Taxes” set forth in Section 1.1 of the Agreement is hereby
amended and restated in its entirety as follows:
“Excluded Taxes” shall mean any liability, without duplication, for (a)
Taxes of the Company and its Subsidiaries for any Pre-Closing Period (other than
Buyer Assumed Taxes); (b) Taxes resulting from (i) any breach or inaccuracy of any
representation or warranty contained in Section 3.12(b), (c) or (d), (ii) any breach
or inaccuracy of any representation or warranty contained in Section 3.12 other than
Sections 3.12(b), (c) or (d) or (iii) any breach of any of the covenants and
agreements set forth in Section 6.4(l), 6.4(m), 6.18, 10.3, 10.4 or 10.5
(provided, however, that in the case of (b)(ii) and (b)(iii) only to
the extent such Taxes arise in a Pre-Closing Period); and (c) Taxes of Sellers,
provided, however, that Excluded Income Taxes of the Company or any Maltese
Affiliate, shall be calculated net of any Income Tax refund paid by the Maltese
Inland Revenue Department pursuant to Article 48 of the Maltese Income Tax
Management Act and attributable to the same Tax period to which the Excluded Income
Tax relates. For purposes of this Agreement, in determining the Taxes attributable
to the Pre-Closing Period included in any Straddle Period, (i) Taxes other than
income, sales and use and withholding Taxes of the Company and its Subsidiaries
shall be equal to the amount of such Taxes for the entire Straddle Period multiplied
by a fraction, the numerator of which is the number of calendar days during the
Straddle Period that are in the Pre-Closing Period and the denominator of which is
the number of calendar days in the entire Straddle Period (provided,
however, that in the case of ad valorem Taxes, no Tax attributable to
property that was not held during the portion of the Straddle Period ending on or
before the Closing shall be allocable to the taxable period that is deemed to end on
the Closing Date, and no Tax attributable to property that was not held during the
portion of the Straddle Period beginning after the Closing shall be allocable to the
taxable period that is deemed to begin after the Closing Date); and (ii) income,
sales and use and withholding Taxes of the Company and its Subsidiaries shall be
computed as if such taxable period ended as of the end of the day on the Closing
Date.
3. Section 1.1 of the Agreement is hereby amended by adding the following:
“US IP Rights” shall have the meaning set forth on Section 1.1(d) of
the Company Disclosure Letter.
4. Article I of the Agreement is hereby amended by adding the following Section 1.4
immediately following Section 1.3:
1.4 Restructuring.
(a) Prior to the Closing, and prior to the transactions described in
Sections 1.4(b)-(g), APH shall sell all of its equity interests in Cobalt to
the Company, in exchange for the satisfaction of a portion of the outstanding
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intercompany payable owed by APH to the Company in an amount equal to APH’s
$267,000 carrying value in its equity interests in Cobalt.
(b) Prior to the Closing, and prior to the transactions described in
Sections 1.4(c)-(g), the Company shall acquire all of the outstanding Cobalt
Common Stock that it does not own following the purchase described in Section
1.4(a). As a result of the purchases of the equity interests in Cobalt as
described in Section 1.4(a) and this Section 1.4(b), except as set
forth on Section 4.8 of the Sellers Disclosure Letter, the Company shall own one
hundred percent (100%) of the outstanding shares of Cobalt Common Stock
(collectively, together with any subsequently issued and outstanding shares of
Cobalt Common Stock, the “Cobalt Common Shares”).
(c) Prior to the Closing, and prior to the transactions described in
Sections 1.4(d)-(g), ASL shall sell its interest in its intercompany note
receivable from Cobalt in an amount equal to $58,048,036 (the “Cobalt Note”)
to the Company, in exchange for a note receivable from the Company in an amount
equal to $58,048,036.
(d) Prior to the Closing, and prior to the transactions described in
Sections 1.4(e)-(g), the Company shall transfer its interest in the Cobalt
Note to Cobalt as a conditional contribution (the “Capitalization”). Cobalt
shall not issue any equity or other interests to APH in consideration for the
Capitalization.
(e) Prior to the Closing, and prior to the transactions described in
Sections 1.4(f)-(g), AIL shall sell all of its equity interests in Cobalt to
the Company, in exchange for the satisfaction of a portion of the outstanding
intercompany payable owed by AIL to the Company in an amount equal to AIL’s
$10,000,800 carrying value in its equity interests. Following this sale of AIL’s
equity interests in Cobalt to the Company (the “Cobalt Preferred Stock
Transfer”), the Company shall own one hundred percent (100%) of the outstanding
preferred stock equity interests of Cobalt (the “Cobalt Preferred Shares”).
(f) Prior to the Closing, and prior to the transaction described in Section
1.4(g), the Company shall transfer all of the Cobalt Preferred Shares to Cobalt
in exchange for one (1) newly issued share of Cobalt Common Stock. Following this
exchange, and prior to the Share Repurchase (defined below), Cobalt shall cancel all
of the Cobalt Preferred Stock.
(g) Prior to the Closing, and following the consummation of the transactions
described in Sections 1.4(a)-(f), the Company shall repurchase from each
Seller the number of Shares set forth next to such Seller’s name on Section 1.4(g)
to the Company Disclosure Letter, in consideration for the number of Cobalt Common
Shares set forth next to such Seller’s name on Section 1.4(g) to the Company
Disclosure Letter (the “Share Repurchase”). As soon as practicable
following the Share Repurchase, and prior
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to the Closing, the Company shall cancel the Shares repurchased in the Share
Repurchase.
(h) Prior to the Closing, at the request of Parent, AIL shall transfer the US
IP Rights from AIL to a newly-formed, wholly-owned, private limited liability
company formed under the laws of Malta (“Malta NewCo”). The terms and
conditions of such transfer (the “IP transfer”) shall be subject to the
approval of Parent (not to be unreasonably withheld or delayed) and the
Shareholders’ Representative (not to be unreasonably withheld or delayed).
5. Sections 2.1, 2.2 and 2.3 of the Agreement are hereby amended and restated to read in their
entirety as follows:
2.1 The Sale.
(a) Upon the terms and subject to the conditions set forth in this Agreement,
at the closing of the transactions contemplated by this Article II (the
“Closing”), the Sellers shall transfer, convey, assign and deliver to:
(i) Purchaser, and Parent shall cause Purchaser to, and Purchaser
shall, purchase and acquire from the Sellers all of the Sellers’ rights,
title and interests in and to the Shares, free and clear of all Liens (other
than Liens imposed by Parent and its Subsidiaries) (the “Company
Sale”); and
(ii) Parent, and Parent shall purchase and acquire from the Sellers,
all of the Sellers’ rights, title and interests in and to the Cobalt Common
Shares, free and clear of all Liens (other than Liens imposed by Parent and
its Subsidiaries) (the “Cobalt Sale” and together with the Company
Sale, the “Sale”).
2.2 Consideration.
(a) In consideration for the Shares, the following capital sums (collectively,
the “Company Consideration”), shall be paid to the Sellers (or as otherwise
directed by the Shareholders’ Representative in accordance with this Agreement):
(i) At the Closing, Parent, on behalf of Purchaser, shall pay an
aggregate of:
(A) $1,020,000,000 in cash (the “Company Cash Consideration”); and
(B) 16,943,409 validly issued fully paid and non-assessable shares of common stock, $0.0033 par value, of Parent (the “Parent
Common Stock”), subject to adjustment in accordance with Section
2.4 (the “Stock Consideration”).
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(ii) Parent shall cause Purchaser to, and Purchaser shall, pay the
Atorvastatin Payments from time to time pursuant to and in accordance with
Section 2.5.
(b) In consideration for the Cobalt Shares, Parent shall take the following
actions at the Closing:
(i) Pay to the Sellers (or as otherwise directed by the Shareholders’
Representative in accordance with this Agreement) an aggregate of
$30,000,000 in cash (the “Cobalt Cash Consideration” and, together
with the Company Cash Consideration, the “Cash Consideration” and,
together with the payments pursuant to Section 2.2(a)(i), the “Closing
Consideration”); and
(ii) Contribute to Cobalt Holdings validly issued fully paid and
non-assessable shares of Parent Series A Preferred Stock with $200 million
aggregate face amount (the “Preferred Stock Payment”).
For the avoidance of doubt, the Closing Consideration and Preferred Stock Payment
paid to the Sellers pursuant to Sections 2.2(a) and 2.2(b) may be decreased in
accordance with Section 6.15(a)(iii), including with respect to the acquisition of
minority interests in the Subsidiaries set forth on Section 6.3(b) of the
Company Disclosure Letter. At the Closing, the Preferred Stock Payment shall be
deposited by Cobalt Holdings in the escrow account (“Escrow Account”)
established pursuant to the Escrow Agreement. The Escrow Agreement shall provide
that (A) Cobalt Holdings shall be the owner of the Preferred Stock Payment and all
earnings, dividends, distributions, liquidation preference payments and redemption
payments with respect thereto (collectively, the “Escrow Funds”) during such
time as the Escrow Funds are held in the Escrow Account and (B) under certain
circumstances, all or a portion of the Escrow Funds shall be released from the
Escrow Account and delivered to the Shareholders’ Representative or the designee(s)
of the Shareholders’ Representative (such amounts released and delivered as
described this clause (ii), the “Preferred Stock Proceeds” and, together
with Company Consideration and the Cobalt Cash Consideration, the
“Consideration”).
(c) The Consideration shall be paid to the Sellers in the proportions set forth
on Section 2.2(a) of the Company Disclosure Letter. Section 2.2(a)
of the Company Disclosure Letter shall be updated prior to the Closing Date to
reflect changes in ownership of the Company’s ordinary shares and preferred shares.
(d) Purchaser and Parent shall be entitled to deduct and withhold from the
Consideration payable pursuant to this Agreement to any Seller such amounts as
Purchaser or Parent, as applicable, is required to deduct and withhold under the
Code, or any other applicable Tax Law, with respect to the making of such payment;
provided, however, that in the event of a deduction or
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withholding which is not required by Law, Purchaser or Parent, as applicable,
shall indemnify and hold harmless Sellers to the extent of any costs and Taxes not
recovered from the applicable Taxing Authority, provided, further,
however, that such Seller shall have pursued and exhausted all reasonable
remedies to recover such Taxes from such Taxing Authority. In addition, to the
extent that Purchaser or Parent, as applicable, does not withhold from the
Consideration and it is subsequently determined that such withholding was required
by Law, Sellers shall severally and not jointly indemnify and hold harmless
Purchaser or Parent, as applicable, to the extent of any costs and Taxes that are
due and owing from the Purchaser or Parent to the applicable Taxing Authority. The
indemnification obligations contained in this Section 2.2(d) shall not be subject to
the limitation as to survival period contained in Section 9.1 or the limitations
contained in Section 9.5 (other than Section 9.5(e)).
2.3 Closing. (a) The Closing shall take place at the offices of
Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 a.m., New York time, on the second (2nd) Business Day following the
satisfaction or waiver of the conditions set forth in Article VII (other than those
conditions that by their nature are to be satisfied or waived at the Closing, but
subject to the satisfaction or waiver of those conditions), unless mutually agreed
upon by the Shareholders’ Representative and the Parent, or at such other place,
time or date as may be mutually agreed upon in writing by the Shareholders’
Representative and Parent (the “Closing Date”).
(b) At the Closing:
(i) The Sellers shall deliver to Purchaser duly completed and signed
share transfer forms on behalf of each of the Sellers in respect of the
Shares, in customary form to be provided by the Company prior to the
Closing, in favor of the Purchaser, or such Persons as the Purchaser may
direct, free and clear of all Liens (other than Liens imposed by Parent and
its Subsidiaries);
(ii) The Sellers shall deliver to Parent the shares of Cobalt Common
Shares (evidenced by entry in the stock ledger of Cobalt), free and clear of
all Liens (other than Liens imposed by Parent and its Subsidiaries);
(iii) The parties hereto shall enter into each of the Ancillary
Agreements to the extent a party thereto;
(iv) Parent, on behalf of Purchaser, shall pay to the Sellers, on
behalf of Purchaser and its applicable Subsidiaries, (A) by wire transfer,
to an account or accounts designated by the Shareholders’ Representative not
less than two (2) Business Days prior to the Closing, immediately available
funds in an amount equal to the Company Cash
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Consideration; and (B) shares evidencing the Common Stock
Consideration, as adjusted pursuant to Section 2.4;
(v) Parent shall pay to the Sellers, on behalf of itself and its
applicable Subsidiaries, by wire transfer, to an account or accounts
designated by the Shareholders’ Representative not less than two (2)
Business Days prior to the Closing, immediately available funds in an amount
equal to the Cobalt Cash Consideration;
(vi) Parent shall contribute the Preferred Stock Payment to Cobalt
Holdings and shall cause Cobalt Holdings to, and Cobalt Holdings shall,
deposit with an escrow agent mutually acceptable to the Shareholders’
Representative and Parent (the “Escrow Agent”), pursuant to the
Escrow Agreement, the Preferred Stock Payment;
(vii) The parties shall enter into such other documents and agreements
as may be reasonably necessary to consummate the transactions contemplated
hereby, such other documents and agreements to be consistent with the terms
of this Agreement; and
(viii) The Sellers shall deliver, or caused to be delivered, to Parent:
(A) with respect to the Cobalt Sale, (1) a notice to the Internal Revenue
Service (the “IRS”), in accordance with the requirements of United
States Treasury Regulation Section 1.897-2(h)(2), in substantially the form
attached hereto as Annex H, dated as of the Closing Date and
executed by Cobalt, together with written authorization for Parent to
deliver such notice form to the IRS on behalf of Cobalt after the Closing,
and (2) a FIRPTA Certificate, in substantially the form attached hereto as
Annex H, dated as of the Closing Date and executed by Cobalt; (B)
with respect to each of the transactions described in Sections 1.4(a), (b),
(e), (f) and (g), (1) a copy of a certificate from Cobalt which complies
with United States Treasury Regulation Section 1.1445-2(c)(3) that no
interest in Cobalt is a “United States real property interest” (as defined
in Section 897(c)(1) of the Code), and (2) a copy of the notice of such
certification provided by Cobalt to the IRS in accordance with the
provisions of United States Treasury Regulation Section 1.897-2(h)(2).
6. For purposes of the Agreement, Cobalt shall be considered a material Subsidiary of the
Company at and prior to the Closing notwithstanding the transfer of the Cobalt Common Shares to the
Sellers pursuant to Section 1.4(c) of the Agreement.
7. Article III of the Agreement is hereby amended by adding the following Sections 3.23, 3.24
and 3.25 immediately following Section 3.24:
3.23 Capitalization of Cobalt. (a) The authorized capital stock of
Cobalt consists of 2,000 shares of common stock, par value $0.01 per share
(“Cobalt Common Stock”), and 3,704 shares of Series A Preferred Stock, par
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value $0.01 per share (“Cobalt Preferred Stock”). There are 1,000
shares of Cobalt Common Stock and 3,704 shares of Cobalt Preferred Stock issued and
outstanding, and these shares collectively constitute the Cobalt Common Shares and
the Cobalt Preferred Shares, respectively. The Cobalt Common Shares and the Cobalt
Preferred Shares are duly authorized, validly issued, fully paid and nonassessable
and free and clear of all Liens. As of November 25, 2009, all of the Cobalt Common
Shares are owned exclusively by APH and the individuals named on Section 4.8 of
Sellers Disclosure Letter and all of the Cobalt Preferred Shares are owned
exclusively by AIL. Except as set forth above, no common shares or preferred shares
or other ownership interest in Cobalt is issued or outstanding, and there are no
preemptive or other outstanding rights, subscriptions, options, warrants, stock
appreciation rights, redemption rights, repurchase rights, convertible, exercisable,
or exchangeable securities or other agreements, arrangements or commitments of any
character relating to the issued or unissued share capital or other ownership
interest in Cobalt or any other securities or obligations convertible or
exchangeable into or exercisable for, or giving any Person a right to subscribe for
or acquire, any securities of Cobalt. Cobalt does not have any outstanding bonds,
debentures, notes or other obligations the holders of which have the right to vote
(or are convertible or exchangeable into or exercisable for securities having the
right to vote) with the stockholders of Cobalt on any matter.
(b) There are no voting trusts or other agreements or understandings to which
Cobalt is a party with respect to the voting of the Cobalt Common Shares or the
Cobalt Preferred Shares.
3.24 Authority Relative to This Agreement. APH, AIL, ASL and Cobalt
have all necessary organizational power and authority, and have taken all
organizational action necessary, to execute, deliver and perform this Agreement and
to consummate the transactions described in Section 1.4 and the other transactions
contemplated by this Agreement in accordance with the terms of this Agreement. This
Agreement has been duly and validly executed and delivered by APH, AIL, ASL and
Cobalt and, assuming the due authorization, execution and delivery of this Agreement
by the other parties, constitutes a valid, legal and binding agreement of APH, AIL,
ASL and Cobalt, enforceable against APH, AIL, ASL and Cobalt in accordance with its
terms, subject to the Bankruptcy and Equity Exception. The boards of directors (or
similar governing body) of APH, AIL, ASL and Cobalt have approved and adopted this
Agreement and the transactions contemplated herein. None of APH, AIL, ASL or Cobalt
require approval by the holders of their respective securities to approve and adopt
this Agreement and the transactions contemplated herein.
3.25 Consents and Approvals; No Violations. No filing with or notice
to, and no permit, authorization, registration, consent or approval of, any
Governmental Entity or Self-Regulatory Organization is required on the part of APH,
AIL, ASL or Cobalt for the execution, delivery and performance by APH, AIL, ASL or
Cobalt of this Agreement or the consummation by APH, AIL, ASL
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or Cobalt of the transactions described in Section 1.4 and the other
transactions contemplated by this Agreement, except (a) compliance with any
applicable requirements of the HSR Act; or (b) the failure of which to make or
obtain would not reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries taken as a whole or to materially delay, or impair or
prevent, consummation of the transactions contemplated hereby. Assuming compliance
with the items described in clause (a) of the preceding sentence, neither the
execution, delivery and performance of this Agreement by APH, AIL, ASL or Cobalt nor
the consummation by APH, AIL, ASL or Cobalt of the transactions described in Section
1.4 or the other transactions contemplated by this Agreement will (i) conflict with
or result in any breach, violation or infringement of any provision of the
memorandum of association or articles of association of APH, AIL or ASL or the
articles of incorporation or by-laws of Cobalt; (ii) result in a breach, violation
or infringement of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to the creation of any Lien, except for Permitted
Liens, or any right of termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any Company Material Contract; or
(iii) violate or infringe any Law applicable to APH, AIL, ASL or Cobalt, or any of
their respective properties or assets; except in the case of clause (ii) or (iii),
for breaches, violations, infringements, defaults, Liens or other rights that would
not reasonably be expected to have a material adverse effect on the Company and its
Subsidiaries taken as a whole or that would materially delay, or impair or prevent,
consummation of the transactions contemplated hereby.
8. Article IV of the Agreement is hereby amended by adding the following Section 4.8
immediately following Section 4.7:
4.8 Title to Shares. As of immediately prior to the Closing, such
Seller is the lawful record owner of and owns beneficially the Cobalt Common Shares
set forth opposite such Seller’s name in Section 2.2(a) of the Company Disclosure
Letter free and clear of any Lien, except as set forth on Section 4.8 of the Sellers
Disclosure Letter. Such Seller is not a party to any option, warrant, purchase
right, or other Contract or commitment (other than this Agreement) obligating such
Seller to sell, transfer, pledge or otherwise dispose of any capital stock of
Cobalt, except as set forth on Section 4.8 of the Sellers Disclosure Letter. Such
Seller is not a party to any voting trust, proxy or other agreement or understanding
with respect to the voting of any share capital of Cobalt. Upon the Closing, Parent
shall own all of such Seller’s shares of Cobalt, free and clear of all Liens (other
than Liens imposed by Parent and its Subsidiaries).
9. Section 5.8 of the Agreement is hereby amended by replacing references to “the Shares” with
“the Shares and the Cobalt Shares.”
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10. Article V of the Agreement is hereby amended by adding the following Section 5.13, 5.14
and 5.15 immediately following Section 5.12:
5.13 Organization of Cobalt Holdings. Cobalt Holdings is a limited
liability company organized under the laws of Delaware and has all requisite
organizational power and authority to carry on its businesses as now being conducted
and is qualified to do business and is in good standing, if applicable, as a foreign
organization in each jurisdiction where the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing or to
have such power or authority would not reasonably be expected to have a Parent
Material Adverse Effect. Cobalt Holdings is a wholly-owned direct or indirect
subsidiary of Parent and was formed for the purpose of entering into this Agreement
and consummating the transactions contemplated hereby.
5.14 Authority of Cobalt Holdings Relative to This Agreement. Cobalt
Holdings has all necessary organizational power and authority, and has taken all
organizational action necessary, to execute, deliver and perform this Agreement and
to consummate the transactions contemplated by this Agreement in accordance with the
terms of this Agreement. This Agreement has been duly and validly executed and
delivered by Cobalt Holdings and assuming the due authorization, execution and
delivery of this Agreement by the other parties, constitutes a valid, legal and
binding agreement of Cobalt Holdings, enforceable against Cobalt Holdings in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
5.15 Consents and Approvals for Cobalt Holdings; No Violations. No
filing with or notice to, and no permit, authorization, registration, consent or
approval of, any Governmental Entity or Self-Regulatory Organization is required on
the part of Cobalt Holdings for the execution, delivery and performance by Cobalt
Holdings of this Agreement or the consummation by Cobalt Holdings of the
transactions contemplated by this Agreement, except compliance with (a) the
applicable requirements of the HSR Act; (b) the failure of which to make or obtain
would not reasonably be expected to have a material adverse effect on Parent and its
Subsidiaries taken as a whole or to materially delay, or impair or prevent,
consummation of the transactions contemplated hereby. Assuming compliance with the
items described in clause (a) of the preceding sentence, neither the execution,
delivery and performance of this Agreement by Cobalt Holdings nor the consummation
by Cobalt Holdings of the transactions contemplated by this Agreement will (i)
conflict with or result in any breach, violation or infringement of any provision of
the governing documents of Cobalt Holdings; (ii) result in a breach, violation or
infringement of, or constitute (with or without due notice or lapse of time or both)
a default (or give rise to the creation of any Lien, except for Permitted Liens, or
any right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any material Contract to which Cobalt Holdings is
a party or by which any of its material properties or assets may be bound; or (iii)
violate or
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infringe any Law applicable to Cobalt Holdings or any of its properties or
assets, except in the case of clause (ii) or (iii), for breaches, violations,
infringements, defaults, Liens or other rights that would not reasonably be expected
to have a material adverse effect on Parent and its Subsidiaries taken as a whole or
that would materially delay, or impair or prevent, consummation of the transactions
contemplated hereby.
11. Section 7.2 of the Agreement is hereby amended by adding the following Section 7.2(h)
following Section 7.2(g):
(h) As of the Closing, Parent shall hold one hundred percent (100%) of the
outstanding Cobalt Common Shares.
12. Section 9.5 of the Agreement is hereby amended by deleting the reference to “Section
2.2(c)” and inserting “Section 2.2(d).”
13. For the avoidance of doubt, the parties agree that any Income Tax refund received by the
Company or any Subsidiary organized under the Laws of Malta (“Maltese Affiliate”),
following the Closing Date, from the Maltese Inland Revenue Department pursuant to Article 48 of
the Maltese Income Tax Management Act with respect to profits distributed by the Company’s Maltese
Affiliates shall be for the account of Parent and shall not be treated as a refund or credit of or
against an Excluded Tax for purposes of Section 10.3 of the Agreement.
14. Annex A of the Agreement is hereby amended and restated to read in its entirety as
set forth in Annex A hereto.
15. Exhibit B to the Agreement is hereby amended and restated to read in its entirety
as set forth in Annex B hereto.
16. Pursuant to Section 6.4 of the Agreement, Parent hereby consents to the divestiture
transactions of the Company and its Subsidiaries described on Annex C hereto.
17. Section 1.1(d) of the Company Disclosure Letter is hereby added to the Company Disclosure
Letter as set forth in Annex D hereto.
18. Section 1.4(g) of the Company Disclosure Letter is hereby added to the Company Disclosure
Letter as set forth in Annex E hereto.
19. Section 2.2(a) of the Company Disclosure Letter is hereby amended and restated to read in
its entirety as set forth in Annex F hereto.
20. Section 4.8 of the Sellers Disclosure Letter is hereby added to the Sellers Disclosure
Letter as set forth in Annex G hereto.
21. Except as specifically amended herein, the Agreement shall remain in full force and effect
and is hereby ratified and confirmed in all respects, except that on and after the date hereof all
references in the Agreement to “this Agreement,” “hereto,” “hereunder” or words of like import
referring to the Agreement shall mean the Agreement as amended by this
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Amendment. Sections 11.2 through 11.11 of the Agreement are restated herein in full, with the
exception that references to “this Agreement” shall be references to “this Amendment” and, in the
case of Sections 11.4 and 11.5 of the Agreement, “this Agreement” shall be references to “the
Agreement and this Amendment.”
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first above written.
| XXXXX XXXX HOLDINGS LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| ARROW PHARMACEUTICAL HOLDINGS LTD. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| COBALT LABORATORIES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Director | |||
| ARROW INTERNATIONAL LTD. |
||||
| By: | /s/ Xxxx Power | |||
| Name: | Xxxx Power | |||
| Title: | Chief Operating Officer | |||
| ARROW SUPPLIES LTD. |
||||
| By: | /s/ Xxxx Power | |||
| Name: | Xxxx Power | |||
| Title: | Director | |||
[SIGNATURE PAGE TO FIRST AMENDMENT TO
THE SHARE PURCHASE AGREEMENT]
THE SHARE PURCHASE AGREEMENT]
| XXXXXX PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| XXXXXX PHARMA S.À.X.X |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| Xxxxxxx Xxxxxx Xxxxxxxxx, as the SHAREHOLDERS’ REPRESENTATIVE |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| XXXXXX COBALT HOLDINGS, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Authorized Person | |||
| As Attorney-in-Fact for the Sellers named on Annex A to this Amendment |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Attorney in Fact | |||
[SIGNATURE PAGE TO FIRST AMENDMENT TO
THE SHARE PURCHASE AGREEMENT]
THE SHARE PURCHASE AGREEMENT]
