EXHIBIT 10.36
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "First
Amendment") is made between First Horizon Pharmaceutical Corporation, a
Delaware corporation having offices at 0000 Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 ("Purchaser") and Sanofi-Synthelabo Inc., a Delaware
corporation having offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Seller"), as of this 17th day of January 2002.
WHEREAS, Purchaser and Seller entered into that certain Asset Purchase
Agreement dated July 27, 2001 (the "Agreement"); and
WHEREAS, Seller wishes to cause an audit of the PRENATE Business to be
conducted for the benefit of Purchaser pursuant to the terms set forth in the
Agreement as amended by this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in the Agreement and as hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser agree as follows:
1. A new Section 8.5(c) of the Agreement is hereby added to the Agreement
to read as follows:
Section 8.5 Records
(c) Seller shall cause audited financial statements (the
"Audited Financial Statements") of the PRENATE Business to be prepared for the
benefit of Purchaser. Seller shall make available to the auditor of Seller's
choice (which, unless otherwise agreed by Purchaser, shall be Ernst & Young)
copies of all relevant tax returns, documents and records, or portions thereof,
relating exclusively to the PRENATE Business. Each party hereto shall make its
employees reasonably available on a mutually convenient basis to provide
explanation of any documents or information provided hereunder until the
completion of such audit. Purchaser shall reimburse Seller for all fees Seller
incurs in connection with any such audit, including reasonable expenses, within
thirty (30) days of receipt of invoice from Seller.
2. The first sentence of Section 12.1 of the Agreement is hereby amended
in its entirety to read as follows:
Section 12.1 Survival of Representations and Warranties. All
representations and warranties made by Seller or Purchaser in this Agreement
shall survive the Closing for eighteen (18) months; provided (i) the
representations and warranties set forth in Sections 4.1, 4.2 and 4.3 shall
survive indefinitely (subject to applicable statues of limitation) and (ii)
with respect to the representations and warranties set forth in Sections 4.9
and 4.15 and any inaccuracy in any of the Seller's other representations and
warranties contained in this Agreement which becomes known to Purchaser by
reason of
financial data included in any of the financial tables or notes
contained in the Audited Financial Statements, such representations and
warranties contained in Sections 4.9 and 4.15 and such other inaccurate
representations and warranties shall survive until delivery of the
Audited Financial Statements to Purchaser.
3. Section 12.2 of the Agreement is hereby amended in its entirety to
read as follows:
Section 12.2 Indemnification by Purchaser. Purchaser here by
agrees that it shall indemnify, defend and hold harmless Seller, its
affiliates, and, if applicable, their respective directors, officers,
shareholders, partners, attorneys, accountants (except with respect to
clause (v) of this Section 12.2, internal accountants only), agents and
employees and their heirs, successors and assigns (the "Seller
Indemnified Parties") from, against and in respect of any damages,
claims, losses, charges, actions, suits, proceedings, deficiencies,
taxes, interest, penalties, reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees, removal costs,
remediation costs, fines, penalties and expenses of investigation and
ongoing monitoring) whether or not involving a third party claim
(collectively, the "Losses") imposed on, sustained, incurred or
suffered by or asserted against any of the Seller Indemnified Parties,
directly or indirectly relating to or arising out of (i) any breach of
any representation or warranty made by Purchaser contained in this
Agreement or other documents and instruments delivered pursuant to this
Agreement for the period such representation or warranty survives, (ii)
any failure of Purchaser to perform or discharge the Assumed
Liabilities, (iii) the breach of any covenant or agreement of Purchaser
contained in this Agreement or other documents and instruments
delivered pursuant to this Agreement, (iv) the conduct of the PRENATE
Business post Closing and (v) any audit conducted pursuant to Section
8.5(c) of this Agreement and any third party claims against Seller with
respect to such audit or the Audited Financial Statements.
4. Section 1 of this First Amendment does not constitute a waiver of any
rights of Seller or Purchaser which may otherwise arise under the Agreement.
Seller shall exercise its commercially reasonable efforts to cause the Audited
Financial Statements to be delivered to Purchaser (together with Ernst & Young
signed audit opinion and consents) as soon as practicable.
5. This First Amendment and all rights hereunder may not be assigned or
transferred by either party without the prior written consent of each of the
parties hereto.
6. Unless the context requires otherwise, all capitalized terms used in
this First Amendment without definition have the respective meanings assigned
to them in the Agreement.
7. Except as expressly modified by the terms hereof, the terms and
provisions of the Agreement shall remain in full force and effect as originally
written.
8. Signatures on this First Amendment may be communicated by facsimile
transmission and shall be binding upon the parties transmitting the same by
facsimile transmission. If executed in counterparts, this First Amendment will
be as effective as if simultaneously executed.
2
IN WITNESS WHEREOF, the parties hereto have cause this First Amendment
to be duly executed by their respective authorized officers as of the day and
year first above written.
FIRST HORIZON PHARMACEUTICAL SANOFI-SYNTHELABO INC. CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxxxx By:
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Name: Xxxxxx Xxxxxxxxxxxx Name:
--------------------- Title:
Title: EVP/COO/CFO
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By:
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Name:
Title:
