"CONFIDENTIAL MATERIAL FILED SEPARATELY WITH THE COMMISSION"
EXHIBIT 10.27(B)
SECOND AMENDMENT
TO
STOCK PURCHASE AGREEMENT
This Second Amendment (the "AMENDMENT") dated as of February ___, 1998 to
the Stock Purchase Agreement (the "PURCHASE Agreement") dated as of August 25,
1997, as amended on November 26, 1997, by and among Hoechst Xxxxxx Xxxxxxx,
Inc., a Delaware corporation ("PARENT"), Marisub, Inc., a Delaware corporation
and the wholly-owned subsidiary of Parent ("SELLER"), and Xxxxxx
Pharmaceuticals, Inc., a Nevada corporation ("XXXXXX"), is entered into by and
among Xxxxxx, Parent and Seller.
RECITALS
X. Xxxxxx, Parent and Seller have heretofore entered into the Purchase
Agreement, which provides, among other things, for the acquisition by Xxxxxx of
all the outstanding capital stock of The Rugby Group, Inc. (the "COMPANY"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
X. Xxxxxx, Parent and Seller wish to enter into this Amendment to amend
certain provisions and exhibits of the Purchase Agreement.
AGREEMENTS
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. STATUS OF PURCHASE AGREEMENT. Except as specifically set forth herein,
the Purchase Agreement and each of the exhibits thereto shall remain in full
force and effect and shall not be waived, modified, superseded or otherwise
affected by this Amendment. This Amendment is not to be construed as a release,
waiver or modification of any of the terms, conditions, representations,
warranties, covenants, rights or remedies set forth in the Purchase Agreement,
except as specifically set forth herein.
2. AMENDMENTS TO THE PURCHASE AGREEMENT.
2.1 RECITAL A OF THE PURCHASE AGREEMENT. Recital A of the Purchase
Agreement is hereby deleted in its entirety and replaced with the following:
"A. Seller owns all of the outstanding shares of capital stock ("SHARES")
of The Rugby Group, Inc., a New York corporation (the "COMPANY"), which Shares
consist of 220 shares of common stock."
2.2 SECTION 3.2(A) OF THE PURCHASE AGREEMENT. Section 3.2(a) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"*SEE PAGE ONE OF EXHIBIT"
"(a) The total authorized capital stock of the Company consists of (i) 400
shares of common stock, par value $50 per share, 220 shares of which are issued
and outstanding as of the date of this Agreement; (ii) 20,000 shares of first
preferred stock, par value $1 per share, no shares of which are issued and
outstanding as of the date of this Agreement; and (iii) 2,400 shares of second
preferred stock, par value $1,000 per share, no shares of which are issued and
outstanding as of the date of this Agreement. There are no shares of capital
stock of the Company of any other class authorized, issued or outstanding."
2.3 SECTION 5.1(E) OF THE PURCHASE AGREEMENT. Section 5.1(e) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"(e) The Company and Parent shall have entered into the side letter
relating to * in the form attached hereto as EXHIBIT A."
2.4 SECTION 5.1(F) OF THE PURCHASE AGREEMENT. Section 5.1(f) of the
Purchase Agreement is hereby amended such that the form of Contract
Manufacturing Agreement attached to the Agreement as EXHIBIT B shall be revised
as set forth in ANNEX A attached hereto.
2.5 SECTION 5.1(G) OF THE PURCHASE AGREEMENT. Section 5.1(g) of the
Purchase Agreement is hereby amended such that the form of Agreement with
Respect to Tax Matters attached to the Agreement as EXHIBIT C shall be revised
as set forth in ANNEX B attached hereto.
2.6 SECTION 5.1(H) OF THE PURCHASE AGREEMENT. Section 5.1(h) of the
Purchase Agreement is hereby amended such that the form of Supply and License
Agreement attached to the Agreement as EXHIBIT D shall be revised as set forth
in ANNEX C attached hereto.
2.7 SECTION 5.1(I) OF THE PURCHASE AGREEMENT. Section 5.1(i) of the
Purchase Agreement is hereby amended such that the form of Lease attached to the
Agreement as EXHIBIT E shall be revised as set forth in ANNEX D attached hereto.
2.8 SECTION 5.1(J) OF THE PURCHASE AGREEMENT. Section 5.1(j) of the
Purchase Agreement is hereby amended such that the form of Information Services
Agreement attached to the Agreement as EXHIBIT F shall be revised as set forth
in ANNEX E attached hereto.
2.9 SECTION 5.1(K) OF THE PURCHASE AGREEMENT. Section 5.1(k) of the
Purchase Agreement is hereby amended such that the form of Seconding Agreement
attached to the Agreement as EXHIBIT G shall be revised as set forth in ANNEX F
attached hereto.
2.10 SECTION 5.1(L) OF THE PURCHASE AGREEMENT. A new Section 5.1(l) is
hereby added to the Purchase Agreement to read as follows:
"(l) Xxxxxx and HMRI shall have entered into the letter agreement relating
to *, attached to this Amendment as ANNEX G."
2.11 SECTION 5.3(I) OF THE PURCHASE AGREEMENT. Section 5.3(i) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
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"*SEE PAGE ONE OF EXHIBIT"
"(i) Intentionally omitted."
2.12 SECTION 5.3(J) OF THE PURCHASE AGREEMENT. Section 5.3(j) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"(j) Xxxxxx shall have received a letter from Parent stating that the
intercompany payable owed by the Company and/or its Subsidiaries to Parent
and/or its affiliates has been converted from a liability to a contribution of
capital by Parent to Seller and by Seller to the Company as of the Closing
Date;"
2.13 SECTION 5.3(L) OF THE PURCHASE AGREEMENT. Section 5.3(l) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"(l) Intentionally omitted."
2.14 SECTION 6.2(B) OF THE PURCHASE AGREEMENT. Section 6.2 of the Purchase
Agreement is hereby amended by deleting the word "During" and replacing such
word with the phrase "From and after the Closing, during".
2.15 SECTION 6.3 OF THE PURCHASE AGREEMENT. Section 6.3 of the Purchase
Agreement is hereby amended by deleting the word "*" and replacing such word
with the phrase "*".
2.16 SECTION 6.6(A) OF THE PURCHASE AGREEMENT. Section 6.6(a) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"(a) Except for acquisitions which qualify for the treatment under Section
6.6(b) herein: if, at any time prior to January 1, 2000, (i) Xxxxxx or any of
its Subsidiaries (A)(I) acquires any pharmaceutical distribution business or any
portion thereof in one or a series of related transactions; or (II) acquires any
entity which is in the pharmaceutical distribution business in one or a series
of related transactions and such distribution business is acquired by Xxxxxx or
any of its Subsidiaries in connection with such acquisition, and, in each of (I)
or (II) above, the aggregate net sales of the distribution business acquired
exceeds $* during the twelve month period immediately prior to such acquisition,
excluding the net sales of any products acquired which are or will be Xxxxxx
Products; or (ii) Xxxxxx sells to an unaffiliated third party all or
substantially all of the Distribution Business in one or a series of related
transactions (each of (i) and (ii) being collectively referred to herein as a
"SALE EVENT"), then, except as provided below in this Section 6.6(a), for
purposes of calculating the Upside Net Profit, the Distribution Net Profits
derived by Xxxxxx and its Subsidiaries from the Distribution Business during
calendar year 1999 shall be deemed to be equal to the Distribution Net Profits
derived by Xxxxxx and its Subsidiaries from the Distribution Business during the
twelve month period ending on the last day of the calendar month immediately
preceding such Sale Event. Notwithstanding the foregoing, if the net profits
(calculated in the same manner as the calculation of Distribution Net Profits)
of any distribution business acquired by Xxxxxx or any of its Subsidiaries
pursuant to Section 6.6(a)(i) is not less than zero for the twelve month period
ending on the date of the most recent financial statements referenced in the
principal acquisition agreement relating to Xxxxxx'x or any of its Subsidiaries'
acquisition of such distribution business, then, in lieu of the foregoing
calculation of Distribution Net Profits, Xxxxxx may, in its sole discretion,
elect to calculate Distribution Net Profits derived by Xxxxxx and its
Subsidiaries from the Distribution Business during calendar year 1999 in
accordance with the provisions of Section 6.5 hereof. Xxxxxx must
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"*SEE PAGE ONE OF EXHIBIT"
exercise such election by delivering written notice to Parent on or prior to the
closing date of the acquisition of such distribution business. If Xxxxxx or one
of its Subsidiaries acquires any entity described in Section 6.6(a)(i)(A) above,
with net sales (excluding sales attributable to Xxxxxx Products) equal to or
less than $* during the twelve month period immediately prior to such
acquisition, the net profits (calculated in the same manner as the calculation
of Distribution Net Profits) derived by Xxxxxx and its Subsidiaries from such
acquired business during calendar year 1999 shall be included in the calculation
of Distribution Net Profits."
2.17 ARTICLE VI OF THE PURCHASE AGREEMENT. Article VI of the Purchase
Agreement is hereby amended by adding the following to the end of such article:
"6.18 SEVERANCE BENEFITS.
(a) To the extent that the Company or any of its Subsidiaries incur any
severance obligations or liabilities which exceed * in connection with the
Company's and its Subsidiaries' anticipated plant closings at their facilities
located in *, whether before or after Closing, Parent shall reimburse the
Company for any such excess as soon as practicable after the amount of such
excess is determined.
(b) To the extent the Company or any of its Subsidiaries pays any
severance obligations or liabilities prior to the Closing to any employee in
connection with the Company's and its Subsidiaries' anticipated plant closings
at their facilities located in *, Xxxxxx agrees to reimburse the Company for the
amount of any such payments made to any such employee up to the amount of * with
respect to each such employee. Such payments shall be made by Xxxxxx to the
Company as soon as practicable after the amount of such severance obligation or
liability has been paid by the Company and invoiced to Xxxxxx.
(c) After the Closing, to the extent that any employee of the Company or
any of its Subsidiaries claims to have a right to severance benefits in excess
of * due to actions taken by the Company or its Subsidiaries at any time prior
to the Closing Date with respect to the closings of its facilities located in *,
Parent agrees to indemnify and hold harmless Xxxxxx, the Company and each of its
Subsidiaries for (a) all costs and expenses, including, without limitation,
reasonable attorneys fees, incurred by Xxxxxx, the Company or any of its
Subsidiaries in connection with the defense or investigation of any such claim;
and (b) all severance benefits paid to any such employee in excess of *.
Notwithstanding the foregoing, Xxxxxx agrees that Parent shall not have any
indemnification obligations under this Section 6.18(c) unless such severance
payments were made by Xxxxxx or its Subsidiaries pursuant to either (i) Parent's
prior written consent, which consent shall not be unreasonably withheld, or (ii)
a direction to make any such payment by a competent authority."
2.18 SECTION 7.5(D) OF THE PURCHASE AGREEMENT. Section 7.5(d) of the
Purchase Agreement is hereby amended by deleting the phrase "Section 7.3(c)
hereof" and inserting in its place the following: "(a) Section 7.3(c); or (b) a
violation by Parent of its obligations contained in Section 6.18 of this
Agreement,"
2.19 SECTION 8.2 OF THE PURCHASE AGREEMENT. Section 8.2 of the Purchase
Agreement is hereby amended by deleting the date "December 15, 1997" contained
in such section and replacing such date with "February 27, 1998".
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3. DISCLOSURE STATEMENT. The Disclosure Statement is hereby amended to add
the matters set forth on ANNEX H attached hereto.
4. REPRESENTATIONS AND WARRANTIES OF ENTITIES. Each of Xxxxxx, Parent and
Seller represents and warrants that its execution, delivery and performance of
this Amendment has been duly authorized by all necessary corporate action and
this Amendment is a legal, valid and binding obligation of such entity in
accordance with its terms.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
6. GOVERNING LAW. This Amendment shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles.
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IN WITNESS WHEREOF, the parties have executed this Amendment and caused
the same to be duly delivered on their behalf on the day and year first written
above.
XXXXXX PHARMACEUTICALS, INC.
By:_________________________
TITLE:______________________
HOECHST XXXXXX XXXXXXX, INC.
By:_________________________
TITLE:______________________
MARISUB, INC.
By:_________________________
TITLE:______________________
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