EXHIBIT 10.2
AMENDMENT NO. 1
TO
PURCHASE AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") to the Purchase Agreement, dated as
of November 6, 2001 (the "Purchase Agreement") among American Home Products
Corporation, a Delaware corporation ("AHP"), AHP Subsidiary Holding Corporation,
a Delaware corporation ("Holdings" and, together with AHP, the "Sellers"), and
Immunex Corporation, a Washington corporation ("Buyer"), is entered into as of
December 21, 2001.
W I T N E S S E T H :
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WHEREAS, AHP, Holdings and Buyer each desire to amend the Purchase
Agreement as set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendments to the Purchase Agreement.
(a) The following shall be added as a new Section 2.5 of the Purchase
Agreement:
"2.5 PAYMENT METHOD.
Notwithstanding anything to the contrary herein, all payments required to
be made by Buyer to Holdings at Closing pursuant to Sections 2.1 and 2.2 of
this Agreement shall be made by tender at Closing of a duly authorized and
executed Note (the "Note") in the form attached as Exhibit 2.5(a) hereto.
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The Note shall be due and payable by wire transfer of immediately available
funds on or before January 11, 2002 to an account specified in writing by
the Sellers. The Note shall be secured by the Shares, which shall be
pledged to Holdings at Closing pursuant to the Pledge Agreement attached
hereto as Exhibit 2.5(b). The pledged Shares shall be released to Buyer
upon payment of the Note in accordance with the terms of the Pledge
Agreement."
(b) Section 3.1 of the Purchase Agreement is hereby amended and restated to
read in its entirety:
"3.1. THE CLOSING. Unless this Agreement shall have been terminated in
accordance with the terms hereof, on the terms and subject to the
conditions of this Agreement, the closing of the sale and purchase of the
Shares and the Assets and the consummation of the other transactions
contemplated hereby (the "Closing") shall take place at the offices of
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American Home Products Corporation, Five Xxxxxxx Xxxxx, Xxxxxxx, Xxx
Xxxxxx, 00000 on (a) the later of January 1, 2002; or (ii) the next
succeeding business day on which the last to be fulfilled or waived of the
conditions set forth in Article 9 shall be fulfilled or waived in
accordance with this Agreement or (b) at such other time, date or place as
the parties may mutually agree upon in writing (the "Closing Date"). At the
Closing, the parties to this Agreement will exchange the Note, certificates
and other documents specified in this Agreement, and ownership of the
Shares will transfer to Buyer notwithstanding Sellers' continued possession
of the Certificate (as defined below) under the Pledge Agreement. For
purposes of this Agreement, the Closing will be treated as if it had
occurred at 12:01 a.m. on the Closing Date."
(c) Section 3.2(a) of the Purchase Agreement is hereby amended and restated
to read in its entirety:
"3.2(a) the Note and the Pledge Agreement;"
(d) Section 3.3(a) of the Purchase Agreement is hereby amended and restated
to read in its entirety:
"3.3(a) a photocopy of a certificate representing the Shares (the
"Certificate"), which has been duly endorsed for transfer to Buyer or is
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accompanied by a stock power duly executed in blank, it being understood
that Sellers shall retain possession of the original Certificate in
accordance with the terms of the Pledge Agreement."
(e) The following shall be added as a new Section 4.18 of the Purchase
Agreement:
"4.18. PAST ACTIVITIES. Greenwich was, prior to July 16, 1999, solely a
holding company owning the shares of Promotion Services GmbH and did
not engage in any activity or operations before July 16, 1999.
Promotion Services GmbH never engaged, directly or indirectly, in the
sale or distribution of any pharmaceutical or other products. All
actions necessary to effect the dissolution of Promotion Services GmbH
in full compliance with applicable law, including any necessary actions
of any governmental entity or agency, have been taken and such
dissolution is complete, effective November 29, 2001. As of the Closing
Date, there are no claims, actions, suits, arbitrations, investigations
or proceedings pending against or involving, or to the knowledge of
Sellers, threatened against Promotion Services GmbH and, to the
knowledge of Sellers, there is no valid basis for any claim, action,
suit, arbitration, proceeding or investigation before or by any Person
against or involving Promotion Services GmbH. There are no outstanding
judgments, orders, decrees, or stipulations to which Promotion Services
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GmbH is a party. Promotion Services GmbH has not engaged in any operations
or business activity since March 31, 1996."
(f) The following shall be added as a new Section 4.19 to the Purchase
Agreement:
"4.19. SUBSIDIARIES. Greenwich does not own or control, and except for
Promotion Services GmbH, has never owned or controlled, directly or
indirectly, any corporation, partnership, limited liability company or
other business entity. Greenwich does not own or control, and except for
Promotion Services GmbH has never owned or controlled, directly or
indirectly, any ownership, equity or voting interest in, any corporation,
partnership, joint venture or other entity, and has no agreement or
commitment to purchase any such interest."
(g) Section 11.1(c) and (d) are hereby amended and restated to read in
their entirety as follows, and the following shall be added as a new Section
11.1(e) and a new Section 11(f) to the Purchase Agreement:
"11.1(c) any Excluded Assets and Liabilities; (d) the operation and
activities of Greenwich, and the ownership of its assets, prior to
September 24, 1999 and all operations and activities of Promotion
Services GmbH; (e) that certain complaint of Xxxxxx X. Xxxxxxxx against
Wyeth Pharmaceuticals currently pending before the Equal Employment
Opportunity Commission and the Rhode Island Commission for Human
Rights; and (f) any and all actions, suits, proceedings, claims, and
demands incident to any of the foregoing or such indemnification."
(h) Section 11.3(a) is hereby amended and restated to read in its entirety:
"11.3. CERTAIN LIMITATIONS. (a) Other than Sellers' obligation to indemnify
for Buyer Losses under Section 11.1(a) of this Agreement arising out of a
breach of representation or warranty contained in Section 4.2
(capitalization), 4.12 (brokers), 4.15 (taxes), 4.18 (past activities) or
4.19 (subsidiaries), Sellers' obligation to indemnify for Buyer Losses
under Section 11.1(a) of this Agreement shall not accrue until the
aggregate of all such Buyer Losses exceeds Seven Hundred Fifty Thousand
Dollars ($750,000) (the "Loss Threshold") and then Sellers shall be liable
for all such Buyer Losses in excess of such initial $750,000 and shall be
limited to One Hundred Seventy-Five Million Dollars ($175,000,000) in the
aggregate. There shall be no Loss Threshold or limit on liability with
respect to Sellers' obligations to indemnify under Sections 11.1(b)
through (f)."
(i) Section 12.1 is hereby amended and restated to read in its entirety:
"The covenants contained in this Agreement shall survive the Closing
Date without limitation except as expressly set forth herein. The
representations and warranties contained herein shall survive the
Closing Date for a period of eighteen (18) months, except for (i) the
representations and warranties contained in Section 4.15 (taxes), which
shall survive until the expiration of the applicable statute of
limitations, and (ii) the representations and warranties contained in
Sections 4.2 (capitalization),
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4.3 (corporate authority), 4.12 (brokers and intermediaries), 4.18 (past
activities), 4.19 (subsidiaries), 5.2 (corporate authority) and 5.5
(brokers and intermediaries), which shall survive the Closing Date
without limitation. Buyer's and Seller's right to make a claim for
indemnification under Section 11.1(a) or Section 11.2(a), respectively for
a breach of any representation or warranty expires upon the expiration of
the applicable period set forth above, it being understood that claims made
on or prior to such expiration date shall survive such expiration date."
2. Reference to and Effect on Purchase Agreement; Miscellaneous.
(a) Upon the effectiveness of this Amendment, each reference in the
Purchase Agreement to "this Agreement," "hereunder," "hereof, " "herein, "
"hereby" or words of like import shall mean and be a reference to the Purchase
Agreement as amended hereby, and each reference to the Purchase Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Purchase Agreement shall mean and be a reference to the Purchase
Agreement as amended hereby.
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of either of the parties under the Purchase Agreement
nor constitute a waiver of any provision contained therein, except as
specifically set forth herein or contemplated hereby.
(c) This Amendment may be executed and delivered (including by
facsimile transmission) in any number of counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
(d) Section headings in this Amendment are included herein for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Amendment.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have entered into and signed this
Amendment as of the date and year first written above.
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ Xxxxxx X. Xxx
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Title:______________________________
AHP SUBSIDIARY HOLDING CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Title:______________________________
IMMUNEX CORPORATION
By: /s/ Xxxxx X. Xxxx
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Title:______________________________
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