FIRST AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT (the "Amendment")
is entered into as of the 19th day of March 1999 by and between KV
PHARMACEUTICAL COMPANY ("KV"), and AMERICAN HOME PRODUCTS CORPORATION acting
through its WYETH-AYERST LABORATORIES division ("AHPC").
RECITALS
A. KV and AHPC have entered into that certain Asset Purchase Agreement,
dated as of February 11, 1999.
B. KV and AHPC have agreed to amend certain of the terms of the
Agreement pertaining to Customer Contracts.
C. In consideration of the covenants and agreements contained herein,
and for other valuable consideration the receipt and sufficiency of which are
acknowledged and confirmed, the parties agree as follows:
TERMS OF AGREEMENT
1. Effective Terms of Agreement. From and after the date of this
Amendment, the Agreement shall consist of the Agreement and this Amendment.
2. Definitions. All capitalized terms which are not defined herein
shall have the meaning given them in the Agreement.
3. Amendments to Agreement. The terms of the Agreement are amended as
expressly set forth below:
I. Section 5.2 of the Agreement on page 8 of the Agreement is
deleted in its entirety and the following is substituted therefor and
shall be read as Section 5.2 of the Agreement:
"5.2 Customer Contracts. A complete and accurate list of each
Customer Contract pursuant to which AHPC or its Affiliates is,
immediately prior to the date of this Agreement, selling any
of the Current Products, either with or without other products
of AHPC and its Affiliates, to Third Party buyers is attached
as Exhibit C. From and after Closing the Customer Contracts
will be treated as provided in the Systems Transfer Plan. The
Parties understand and agree that, because the right to sell
the Products is being transferred to KV pursuant to this
Agreement, as of the Closing Date AHPC will no longer have the
right to sell the Products under the Customer Contracts,
provided, however, that KV covenants and agrees that it will
continue to honor all of AHPC's and its Affiliates'
commitments made in each such Customer Contract with respect
to supplying the Current Product, including, without
limitation, the sale prices, for the Current Products
throughout the term of each such Customer Contract in
accordance with the System Transfer Plan. AHPC shall not be
required to either (i) adjust prices or terms relating to
products other than Products or (ii) make any payments to such
Third Party in consideration for deleting the Products from
the Customer Contracts. AHPC agrees that it will not take any
action with respect to any Customer Contract which will extend
the term of such Customer Contract for any Current Product or
otherwise adversely affect KV with respect to any Current
Product, without the prior written consent of KV."
II. Section 5.4 of the Agreement on page 9 of the Agreement is
deleted in its entirety and the following is substituted therefor and
shall be read as Section 5.4 of the Agreement:
"5.4 Rebates. KV and AHPC shall be responsible for Federal and
State rebate programs, and managed care rebate programs, for
Products sold in the United States, including all reporting
activities associated with such programs, in accordance with
the Systems Transfer Plan; provided, however, that with
respect to Product sales having Report Dates on or prior to
June 30, 1999, AHPC will reimburse KV for all qualified
Federal and State rebates and managed care rebates, and, for
six months following the Closing Date, with respect to Product
sales having Report Dates prior to or within 45 days after the
Closing Date, AHPC will reimburse KV for all qualified retail
pharmacy discounts. For purposes of this Section 5.4, the
"Report Dates" are the dates of sale covered by the report,
not the date on which the report was generated, as issued by
the applicable Federal or State rebate programs, managed care
rebate programs, or retail pharmacy discount programs. The
Parties will provide reasonable assistance, data and
information to each other in order to meet their respective
responsibilities for such programs. To be a "qualified"
rebate, KV must submit a request for the rebate to AHPC and
provide AHPC with all related supporting documentation
reasonably requested by AHPC and in the possession or control
of KV."
III. Exhibit A attached to the Agreement is deleted in its
entirety and the attached Exhibit A is substituted in lieu thereof.
4. Provisions to Remain in Force. Except as amended hereby the
Agreement shall remain in full force and effect and is in all respects ratified
and affirmed.
5. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
KV and AHPC have caused this Amendment to be executed as of the date
and year first above written.
KV PHARMACEUTICAL COMPANY
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Secretary
AMERICAN HOME PRODUCT CORPORATION
acting through its
WYETH-AYERST LABORATORIES division
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and
Associate General Counsel
List of Exhibits Omitted Pursuant to Item 601(b)(2) of Regulation S-K
All capitalized terms not defined herein have the meaning ascribed to such terms
in the Asset Purchase Agreement to which this list is attached.
Exhibit A: The Amended Acquired Trademarks and Patents and the Licensed
Trademarks.
