AMENDMENT TO PURCHASE AGREEMENT
This AMENDMENT TO PURCHASE AGREEMENT dated as of March 2, 2001 (this
"Amendment") is between BASF Aktiengesellschaft ("Seller") and Xxxxxx
Laboratories ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser are parties to the Purchase Agreement
dated as of December 14, 2000 (Number 194 of the Roll of Deeds for 2000 of Xx.
Xxxxxxx Xxxxxxx, notar at Frankfurt a.M.) (the "Purchase Agreement") pursuant to
which Purchaser has agreed to acquire the Shares and Transferred Patents (as
such terms are defined in the Purchase Agreement); and
WHEREAS, Seller and Purchaser have agreed to certain matters incidental
to the consummation of the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties to the Purchase Agreement hereby
agree as follows:
SECTION 1
DEFINITIONS
All initial capitalized terms used and not otherwise defined herein
have the meanings assigned to such terms in the Purchase Agreement.
SECTION 2
AMENDMENTS TO PURCHASE AGREEMENT
The Purchase Agreement is hereby amended as follows:
2.1. The section of the Purchase Agreement entitled "Definitions" is
hereby amended by adding the following defined terms:
"BASF Knoll India Shares" means the Knoll India Shares owned
by Lupharma and representing 51% of the total issued and
outstanding equity shares of Knoll India.
"Hokuriku" means Hokuriku Seiyaku and Co. Ltd., a Japanese
stock corporation.
"Knoll India Base Amount" means the aggregate value derived by
multiplying the Knoll India Per Share Base Amount with the
number of BASF Knoll India Shares.
"Knoll India Net Assets Amount" has the meaning set forth in
Exhibit 7.4.
"Knoll India Per Share Base Amount" means (i) the Knoll India
Per Share Tender Price, less (ii) the Knoll India Per Share
Net Assets Amount.
"Knoll India Per Share Net Assets Amount" means (i) the Knoll
India Net Assets Amount, divided by (ii) the number of
outstanding Knoll India Shares as of the Closing.
"Knoll India Per Share Tender Price" means the price per share
offered by Purchaser in the Knoll India Tender Offer.
"Knoll India Shares" means the fully paid, issued and
outstanding voting equity shares in the capital of Knoll
India, each such share having a par value of Rs. 10.
"Knoll India Tender Offer" means the public offer that
Purchaser is required to make to the public shareholders of
Knoll India pursuant to the laws of India as a result of
Purchaser deciding to acquire, or acquiring, the BASF Knoll
India Shares in accordance with the provisions of this
Agreement, as amended.
"Knoll India" means Xxxxx Pharmaceuticals Limited, a listed
public company formed under the laws of India.
"Lupharma" means Lupharma GmbH, a limited liability company
under the laws of the Federal Republic of Germany registered
in the Commercial Register of the local court Ludwigshafen
under docket number HRB 3617.
"Provisional Knoll India Base Amount" means the amount set
forth on Exhibit 8.1 for Knoll India.
"Transpharm" means Transpharm GmbH, a limited liability
company under the laws of the Federal Republic of Germany
registered in the Commercial Register of the local court
Ludwigshafen under docket number HRB 1135.
2.2 Section 5.3 of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
5.3 "Shared Substances" shall mean the substances
(Substanzen) contained in the physical compound
library of the Seller or its Affiliates (other than
the Companies), on the one hand, and/or Xxxxx XX, on
the other hand, in each case at facilities located in
Ludwigshafen, Germany, including, without limitation,
any such substances obtained from third parties.
2.3. The section of the Purchase Agreement entitled "Section 7, Sale"
is hereby amended by amending and restating such section in its entirety as
follows:
7.1 Seller hereby sells the Shares and the Transferred
Patents to Purchaser or to entities designated by
Purchaser, subject to the occurrence and fulfillment
or waiver of all of the Closing Conditions and with
commercial
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effect as amongst the parties as of the Closing, and
Seller hereby agrees to transfer, or to cause its
Affiliates to transfer, the Shares and the
Transferred Patents by separate transfer contracts
(hereinafter referred to as "Separate Transfer
Contracts") to Purchaser or to entities designated by
Purchaser at and effective as of the Closing.
Notwithstanding anything to the contrary set forth in
this Agreement, "Shares" shall not include shares or
other interests in any of the companies or entities
set forth on Exhibit 12.2(d).
7.2 The Separate Transfer Contracts shall be entered into
and completed at the Closing in accordance with
Section 12.1.
7.3 Seller shall cause the businesses described in
clauses (a) through (d) in the definition of
"Discontinued/Excluded Businesses" to be transferred
to Seller or any of its Affiliates (other than the
Companies) prior to the Closing. To the extent not so
transferred, Purchaser shall (a) upon Seller's
request and at Seller's expense cause each such
transfer to be made or completed after the Closing as
far as not made or completed prior thereto, (b) hold
(without any obligation to manage or operate) such
Discontinued/Excluded Businesses until completion of
their transfer for the account of Seller and (c) pay
any consideration in respect of such transfer to
Seller.
7.4 Subject to the second sentence of Section 8.3(b), as
far as the Knoll India Shares are concerned, the
Knoll India Per Share Tender Price multiplied by the
number of BASF Knoll India Shares acquired by
Purchaser pursuant hereto (such amount, converted
from RS to USD using the Conversion Exchange Rates,
being the "Knoll India Purchase Price") shall
determine the total purchase price paid by Purchaser
to Seller in respect of, and allocated to, the BASF
Knoll India Shares; PROVIDED, HOWEVER, that if such
amount as so determined is (a) greater than the
amount set forth for Knoll India on Exhibit 8.1,
then the Knoll India Purchase Price shall be the
amount set forth on such Exhibit, or (b) less than
the amount set forth for Knoll India on Exhibit 8.1
(the "Knoll India Excess"), such Knoll India Excess
shall be allocated to such Companies (other than
Knoll India) as Seller and Purchaser may mutually
agree. Exhibit 7.4 shall govern the calculation of
the Knoll India Net Asset Value described therein.
7.5 The parties acknowledge that at the Closing,
Purchaser shall not acquire the shares of Lupharma UK
Holding II, Ltd. (or indirectly shares of Xxxxx
International Private Ltd. ("Knoll India Private")).
Seller hereby grants to Purchaser an option to
acquire either the shares of Lupharma UK Holding II,
Ltd. (the "Share Option") or all or substantially all
of the assets of Knoll India Private (the "Assets
Option") through such entities as Purchaser may
elect, including through a less than wholly owned
affiliate of Purchaser. Purchaser shall exercise
either the Share Option or the Assets Option no later
than December 31, 2001. Upon the exercise of
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such Option by Purchaser, each of Purchaser and
Seller shall take, or cause to be taken, all actions
(including the execution and delivery of documents,
instruments and agreements), and to do, or cause to
be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the
most expeditious manner practicable, the transactions
contemplated by the sale of such assets, including
(i) obtaining all necessary actions or nonactions,
waivers, consents and approvals from third parties
and governmental entities and making all necessary
registrations and filings (including filings with
governmental entities) and taking all reasonable
steps as may be necessary to obtain any approvals or
waivers from, or avoiding any action or proceeding
by, any such third parties or governmental entities,
(ii) executing and delivering any additional
instruments necessary to consummate the transactions
contemplated by this Section 7.5, and to fully carry
out the purposes of this Section, and (iii) the
engagement of such Indian advisors (including Counsel
and accountants) as may be necessary to fully carry
out the purposes of this Section. From and after the
Closing through the date of the acquisition
contemplated by this Section 7.5, Seller shall
operate Knoll India Private in accordance with the
terms of this Agreement as if Knoll India Private
were a Company referred to in Section 12.5. Upon the
closing of the transactions contemplated by the Share
Option or the Assets Option, as the case may be,
Purchaser shall pay Seller or Seller's Affiliate
(including Knoll India Private in the case of the
exercise of the Assets Option) the purchase price for
Knoll India Private in the amount set forth on
Exhibit 8.1 for such entity.
2.4. The section of the Purchase Agreement entitled "Section 8,
Purchase Price" is hereby amended by amending and restating such section in its
entirety as follows:
8.1 Subject to Section 8.2(b) below, the aggregate
purchase price for the Shares and Transferred Patents
and the license granted in Section 25.1 below shall
be USD 6,930,000,000.00 (six billion nine hundred
thirty million United States Dollars) (hereinafter
referred to as the "Aggregate Purchase Price"), and
shall be allocated, except as otherwise provided in
Section 7.4, as set forth in Exhibit 8.1. To the
extent permitted by law such allocation of the
Aggregate Purchase Price shall be binding for Seller
and Purchaser for all aspects including but not
limited to tax filings. The Aggregate Purchase Price
less any sums held back pursuant to Sections 8.2(b)
or 12.5 shall be paid to Seller by transfer of
immediately available funds and free of wire transfer
charges and transfer taxes to:
Account BASF AG
Bank Citibank, New York
SWIFT Code XXXXXX00
ABA No. 000000000
Account No. 00000000
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8.2 (a) The Aggregate Purchase Price shall be adjusted as
provided for in Sections 9 and 10 below or as a
result of a claim for indemnification pursuant to
Sections 15, 18 and 21 below.
(b) Purchaser shall withhold $ 15,000,000 (the
"Uetersen Amount") from the Aggregate Purchase Price
paid at the Closing and shall hold the Uetersen
Amount in escrow until such time as Seller shall have
delivered to Purchaser satisfactory evidence of the
full and unconditional termination of (i) the License
Agreement (LIZENZVERTRAG) (the "Uetersen License"),
regarding the marketing and sale of Pancreatin, to be
executed by Xxxxx XX and Xxxxxxxx Arzneimittel GmbH &
CO. KG pursuant to the Master Agreement regarding the
acquisition of the Uetersen factory of Xxxxx XX
(RAHMENVERTRAG UEBER DEN ERWERB DER BETRIEBSSTAETTE
WERK UETERSEN DER XXXXX XX) between Xxxxx XX and Xx.
Xxxxx Xxxxx, and (ii) Xxxxx AG's obligation to
execute and deliver such Uetersen License; provided,
that if the Uetersen License and such obligation are
not so terminated within 60 days after Closing,
Purchaser shall retain the Uetersen Amount and such
Uetersen Amount will constitute a reduction of the
Aggregate Purchase Price.
8.3 (a) The parties acknowledge that the Aggregate
Purchase Price does not reflect any amounts to be
paid in respect of the computations to be made
pursuant to Sections 9 and 10, and Exhibit 7.4
hereof.
(b) If the Provisional Knoll India Base Amount
exceeds the Knoll India Base Amount (the "Knoll India
Base Amount Overallocation"), an amount equal to the
Knoll India Base Amount Overallocation shall be
allocated to such other Shares (other than the BASF
Knoll India Shares) or assets of the Companies (other
than Knoll India) in such manner as Purchaser and
Seller shall mutually agree. If the Knoll India Base
Amount exceeds the Provisional Knoll India Base
Amount (the "Knoll India Base Amount
Underallocation"), an amount equal to the Knoll India
Base Amount Underallocation shall reduce the amount
allocated to the BASF Knoll India Shares.
The "Non-Indian Purchase Price" shall be equal to (a)
the Aggregate Purchase Price, less (b) the Knoll
India Base Amount.
2.5. The section of the Purchase Agreement entitled "Section 9,
Non-Hokuriku Purchase Price Adjustment" is hereby retitled "Section 9,
Non-Indian Purchase Price Adjustment" and amended by amending and restating such
section in its entirety as follows:
9.1 The Non-Indian Purchase Price shall be adjusted as
follows:
(a) As of September 30, 2000, the net asset
value of the BASF Pharmaceutical Business
amounts to EUR 750,400,000 (seven hundred
fifty million four hundred thousand Euro)
(such amount,
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net of the Knoll India Reference Net Asset
Value, being hereinafter referred to as
"Reference Net Asset Value"). The Reference
Net Asset Value has been determined on the
basis of the unaudited proforma balance
sheet contained in the attached Exhibit
9.1(a) in item 3.2 thereof taking into
account adjustments, as shown in Exhibit
9.1(b) by the elimination of (i) Cash,
Financial Debt, deferred Taxes and Accrued
Taxes as shown in Exhibit 9.1(a), (ii)
deferrals shown in Exhibit 9.1(a) as
miscellaneous liabilities related to
expenses of Seller allocated to the BASF
Pharmaceutical Business; and (iii) other
current assets as shown in Exhibit 9.1(a)
related to one-time payments of American
Home Products to Seller with regard to a
certain patent ("Enbrel"). Notwithstanding
anything to the contrary set forth in this
Section 9.1, Exhibit 9.1(a) or Exhibit
9.1(b), Section 21.4 shall govern to the
exclusion of this Section 9.1 with respect
to the calculations described therein.
(b) If the net asset value of the BASF
Pharmaceutical Business as of the Closing
(net of the Knoll India Closing Net Asset
Values) as determined in accordance with the
principles set forth in Section 10 below and
as shown on the Final Closing Net Asset
Value Statement (hereinafter referred to as
the ("Closing Net Asset Value") is less than
the Reference Net Asset Value, Seller shall
pay to Purchaser the amount by which the
Closing Net Asset Value is less than the
Reference Net Asset Value.
(c) If the Closing Net Asset Value exceeds the
Reference Net Asset Value, Purchaser shall
pay to Seller in addition to the amounts
required to be paid pursuant to Section 8.1
the amount by which the Closing Net Asset
Value exceeds the Reference Net Asset Value.
9.2 The amount determined in accordance with Section 9.1
above shall be paid by Seller or Purchaser, as the
case may be in USD, together with any accrued
interest at a rate of six percent per annum as of the
Closing within 5 working days after the Closing Net
Asset Value Statement has become final in accordance
with Section 10.5 hereof in immediately available
funds free of wire transfer charges and transfer
taxes to the bank account set forth in Section 8.1
above, if payment is to be made to Seller, and to
Citibank, N.A., New York, New York (ABA #000000000)
for credit to Xxxxxx Laboratories (Acct. #00001329)
if payment is to be made to Purchaser. Any credit to
Purchaser shall be made in USD at the spot exchange
rate in effect at two business days prior to the date
of payment.
2.6. Sections 10.1 and 10.2 of the Purchase Agreement are hereby
amended by amending and restating such sections in their entirety as follows:
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10.1 For the purpose of determining the amount of the
purchase price adjustment, if any, pursuant to
Section 9 above, Seller shall deliver to Purchaser as
promptly as practicable (but in any event no more
than 45 days) after the Closing an audited
consolidated balance sheet and statement of changes
in shareholder's equity of the Companies as of the
Closing (the "Closing Balance Sheet") and the Closing
Net Asset Value Statement, each prepared by Seller
and audited by Deloitte & Touche GmbH ("Seller's
Auditors") (hereinafter referred to as "Closing Net
Asset Value Statement") reflecting the Closing Net
Asset Value, together with the report of Seller's
Auditors thereon ("Auditor's Report"). The Closing
Balance Sheet and the statement of changes in
shareholder's equity included in the Auditor's Report
shall be prepared in accordance with the Report
Principles (as defined in Section 13.20) as of the
Closing Date, and prepared and consolidated in a
manner consistent with Exhibit 9.1(a). The Closing
Net Asset Value Statement included in the Auditor's
Report shall be prepared on the basis of, and derived
from, the balance sheet contained in the Closing
Balance Sheet, and adjusted in a manner consistent
with Exhibit 9.1(b), and further adjusted in
accordance with the principles set forth in Exhibit
10.1 hereto; provided however, that (a) the value of
any Cash of Hokuriku (or intercompany item or
receivable in respect of Cash of Hokuriku) to be set
forth on the Final Hokuriku Net Asset Value Statement
shall not exceed U.S. $170,000,000, (b) the Closing
Balance Sheet shall not reflect any cash of the
Companies to be paid after Closing by way of dividend
or distribution to which Purchaser shall not be
entitled, (c) no value shall be included on the
Closing Balance Sheet for the Excluded Inventories
(as hereinafter defined), and (d) the Closing Balance
Sheet shall include as an asset an adjustment of U.S.
$ 321,000 to the extent such adjustment has been paid
prior to Closing. The audit of the Closing Balance
Sheet shall include a physical count and valuation of
the Companies' inventory. The Auditor's Report shall
provide at least as much detail by financial
statement line item as is included in Exhibit 9.1(a).
Intercompany Obligations shall be dealt with as
provided in Section 19; PROVIDED, HOWEVER, that the
Closing Net Asset Value Statement shall reflect the
amounts payable by the Companies and the amounts
payable by Seller pursuant to the Agreement set forth
on Exhibit 19.3. Notwithstanding anything to the
contrary set forth in this Section 10.1, Exhibit 7.4
shall govern the calculation of the Knoll India Net
Asset Value described therein.
10.2 To the extent that the Closing Net Asset Value
Statement arrives at a Closing Net Asset Value
resulting in an adjustment of the Non-Indian Purchase
Price pursuant to Section 9, the Closing Net Asset
Value Statement must also state how the amount by
which the Non-Indian Purchase Price, as so adjusted,
should be allocated. The parties acknowledge and
agree that (a) the Knoll India Purchase Price
reflects the value of any additional net assets that
may be attributable to Knoll India and that no
additional allocation to Knoll India shall be made in
excess of
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the Knoll India Purchase Price as calculated pursuant
to Section 7.4, (b) no additional allocation to Xxxxx
Pharmaceuticals Ltd., a Pakistan corporation, shall
be made in excess of the amount set forth on Exhibit
8.1 for such entity, and (c) no additional amount
shall be allocated to BASF Pharmaceutical Corp. on
account of its holdings in Hokuriku.
2.7. Section 11.1.1 of the Purchase Agreement is hereby amended by
adding the following subsections (d) and (e):
d) Seller shall have completed the Hokuriku Share
transfer procedures described in Exhibit 11.1.1(d).
e) Seller shall have completed the transfer procedures
relating to Xxxxx Pharmaceuticals Ltd. and Xxxxx
International Ltd. described in paragraphs 1(a) and
2 of Exhibit 11.1.1(e).
2.8. Section 12.2 of the Purchase Agreement is hereby amended by adding
the following subsection (d):
d. a duly executed sales and transfer contract
transferring from the Companies to Seller or its
Affiliates the entities set forth on Exhibit 12.2(d).
2.9 Section 12.5 is hereby amended by adding the following to the end
of such Section:
The parties acknowledge that the shares in the Companies
described on Exhibit 12.5 shall be Shares subject to this
Section 12.5.
2.10. The section of the Purchase Agreement entitled "Section 13,
Representations of Seller" is hereby amended by adding the following Section
13.29:
13.29(I) The entities described below have been held, directly
or indirectly, 100% (66.67% as to Hokuriku) by Seller in an
uninterrupted chain of title as described below:
(a) XXXXX XX
(i) Since prior to January 1, 2000 to November
27, 2000, Seller owned directly 100% of the
issued and outstanding shares of capital
stock of Xxxxx XX;
(ii) On November 27, 2000, Seller transferred a
94% interest in Xxxxx XX to BASF Pharma
Holding GmbH, a wholly owned direct
subsidiary of Seller;
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(iii) Seller and BASF Pharma Holding GmbH will
until Closing continue to own directly 6 and
94 percent, respectively, of the issued and
outstanding shares of Xxxxx XX;
(iv) Seller has, since prior to January 1, 2000
owned, and Seller will continue until the
Closing to own, directly 100% of the equity
interests (Geschaftsanteile) of BASF Pharma
Holding GmbH;
(b) LUPHARMA AND TRANSPHARM
(i) Since prior to January 1, 2000 to July 1,
2000, Xxxxx XX owned directly 100% of the
equity interests (Geschaftsanteile) of each
of Lupharma and Transpharm;
(ii) On July 1, 2000, Xxxxx XX transferred to
Seller all of Xxxxx AG's right, title and
interest in and to the equity interests
(Geschaftsanteile) of each of Lupharma and
Transpharm, being in each case 100% of the
equity interests (Geschaftsanteile) thereof;
(iii) On July 1, 2000, immediately upon having
acquired all of Xxxxx AG's right, title and
interest in and to the equity interests
(Geschaftsanteile) of each of Lupharma and
Transpharm, Seller transferred to BASF
Pharma Holding GmbH all of Seller's right,
title and interest in and to the equity
interests (Geschaftsanteile) of each of
Lupharma and Transpharm, being in each case
100% of the equity interests
(Geschaftsanteile) thereof;
(iv) BASF Pharma Holding GmbH has since July 1,
2000 owned, and BASF Pharma Holding GmbH
will continue until the Closing to own,
directly 100% of the equity interests
(Geschaftsanteile) of each of Lupharma and
Transpharm;
(c) HOKURIKU
(i) Since January 1, 2000, Seller's interest in
the issued and outstanding shares in
Hokuriku has been owned as set forth in
Exhibit 13.29;
(ii) Lupharma has acquired by an agreement dated
July 1, 2000, and Lupharma will continue
until the completion of the transfers
contemplated by Exhibit 11.1.1(d) to own,
directly 14,616,000 shares in Hokuriku;
(iii) Transpharm has acquired by an agreement
dated July 1, 2000, and Transpharm will
continue until the completion of the
transfers
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contemplated by Exhibit 11.1.1(d) to own,
directly 14,616,000 shares in Hokuriku;
(iv) Immediately prior to Closing, the transfers
contemplated by Exhibit 11.1.1(d) shall
have been completed;
(d) XXXXX PHARMACEUTICAL COMPANY
(i) Since prior to January 1, 2000, BASFin has
owned, and BASFin will continue until the
Closing to own, directly 100% of the issued
and outstanding shares of capital stock of
BASF Corporation;
(ii) Since prior to January 1, 2000 to July 31,
2000, BASF Corporation owned directly 100%
of the issued and outstanding shares of
capital stock of BASF Capital Corporation;
(iii) Since prior to January 1, 2000 to July 31,
2000, BASF Capital Corporation owned
directly 100% of the issued and outstanding
shares of capital stock of Xxxxx
Pharmaceutical Company;
(iv) On July 31, 2000, BASF Capital Corporation
was merged into BASF Corporation, as a
result of which Xxxxx Pharmaceutical Company
became a wholly owned direct subsidiary of
BASF Corporation;
(v) On July 31, 2000, BASF Corporation
transferred to BASF Pharmaceutical
Corporation all of the issued and
outstanding shares of capital stock of Xxxxx
Pharmaceutical Company, as a result of which
Xxxxx Pharmaceutical Company became a wholly
owned direct subsidiary of BASF
Pharmaceutical Corporation;
(vi) BASF Pharmaceutical Corporation has since
July 31, 2000 owned, and BASF Pharmaceutical
Corporation will continue until the Closing
to own, directly 100% of the issued and
outstanding shares of capital stock of Xxxxx
Pharmaceutical Company;
(vii) On July 31, 2000, BASF Corporation
transferred to BASFin Corporation all of the
issued and outstanding shares of capital
stock of BASF Pharmaceutical Corporation, as
a result of which BASF Pharmaceutical
Corporation became a wholly owned direct
subsidiary of BASFin Corporation;
(viii) Since prior to January 1, 2000, Seller
owned, and will continue until the Closing
to own, directly 100% of the issued and
outstanding shares of capital stock of
BASFin Corporation;
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(ix) On July 31, 2000, BASFin Corporation
transferred to Seller all of the issued and
outstanding shares of capital stock of BASF
Pharmaceutical Corporation, as a result of
which BASF Pharmaceutical Corporation became
a wholly owned direct subsidiary of Seller;
(x) On November 27, 2000, Seller transferred to
BASF Pharma Holding GmbH all of the issued
and outstanding shares of capital stock of
BASF Pharmaceutical Corporation, as a
result of which BASF Pharmaceutical
Corporation became a wholly owned direct
subsidiary of BASF Pharma Holding GmbH;
(xi) On November 27, 2000, BASF Pharma Holding
GmbH transferred to Lupharma all of the
issued and outstanding shares of capital
stock of BASF Pharmaceutical Corporation, as
a result of which BASF Pharmaceutical
Corporation became a wholly owned direct
subsidiary of Lupharma;
(xii) During the period from November, 2000 to the
date hereof, Lupharma GmbH will continue
until the Closing to own directly 100% of
the issued and outstanding shares of capital
stock of BASF Pharmaceutical Corporation;
(II) On February 27, 2001, Xxxxx XX transferred 18,062,659
quotas of Xxxxx Produtos Quimicos e Farmaceuticos Ltda., which
represent 99.999% of its share capital, to Lupharma. On that
same date, Xxxxx Produtos Quimicos e Farmaceuticos Ltda.
amended its Articles of Association to reflect this transfer.
Further on that same date, the amendment of the Articles of
Association was filed with the Commercial Registry of Rio de
Janeiro and the transfer of the quotas was recorded in the
books and records of Xxxxx XX and Lupharma.
2.11. Section 15.1(I) of the Purchase Agreement is hereby amended by
adding the following subsections (d), (e), (f), and (g):
d) The termination of the Development and Distribution
Agreement between Xxxxx, Ltd. and Byk Xxxxxx ("Byk"),
dated May 1, 1996 (the "Byk Agreement"), by Byk
Xxxxxx due to the exercise of its right of
termination pursuant to Section 16.4 thereof,
provided that, with respect to this subsection (d),
Damages owing by Seller pursuant to this Section
15.1(I)(d) shall (i) be calculated taking into
account the methodology and factors set forth on
Exhibit 15.1(I)(d), and (ii) not exceed U.S.
$51,400,000 in the aggregate;
e) (i) The failure of the representations and warranties
set forth in Section 13.1 to be true and correct with
respect to Xxxxx Philippines, Inc. (KPH) ("Xxxxx
Philippines"), the failure by Xxxxx Philippines to
have prepared
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financial statements as required by law and any
action by the Purchaser Group or Xxxxx Philippines
after Closing necessary to render such
representations and warranties true and correct, and
(ii) the sale by Xxxxx Philippines of its assets to a
party designated by Purchaser or the liquidation of
Xxxxx Philippines, including any and all costs,
Taxes, filing, registration and other fees, and
expenses (including reasonable attorneys' and
accountants' fees, liabilities to creditors, and any
fines or penalties) arising out of or relating
thereto or reasonably incurred to bring Xxxxx
Philippines into compliance with Philippine laws and
regulations, to the extent such compliance is a
condition to the liquidation of Xxxxx Philippines;
f) Any Taxes, including stamp taxes, transfer taxes and
VAT, arising from or related to (i) the shares of
Xxxxx Pharma Ltd. and Xxxxx Ltd. and/or (ii) the
sale, transfer or other disposition of any
Discontinued Businesses or any of the entities or
businesses described on Exhibit 12.2(d), whenever
effected; and
g) Xxxxx Xxxxx Active S.A. ("Xxxxx Xxxxx" that the
Purchaser Group would not have incurred had Xxxxx
Xxxxx not been acquired, directly or indirectly, by
Purchaser, including any liabilities, Taxes, costs,
filing, registration and other fees, and expenses
(including reasonable attorneys' and accountants'
fees) arising out of or related to Xxxxx Xxxxx, its
business or operations prior to Closing, or its
liquidation, winding up or dissolution.
2.12. Section 15.4 of the Purchase Agreement is hereby amended by
amending and restating such section in its entirety as follows:
15.4 The limitation of the liability of Seller set forth
in Sections 15.2 and 15.3 above shall not apply in
case of a violation of any Representation made in
Sections 13.1 through 13.4, Section 13.9, Section
13.15.3(a), and Section 13.29. In this case, the
liability of Seller shall be limited to the amount of
the Aggregate Purchase Price as adjusted pursuant to
Section 9.
2.13. Section 15.8(a) of the Purchase Agreement is hereby amended by
amending and restating such section in its entirety as follows:
a) claims pursuant to Sections 13.1 through 13.4, 13.9,
13.15.3(a), and 13.29, and claims pursuant to
Sections 13.13 and 13.14 which are based on a defect
of title, shall be subject to a survival period of 10
years;
2.14. Section 19.3 of the Purchase Agreement is hereby amended by
inserting the following phrase at the beginning of such section:
Except as the parties may otherwise agree as set forth on
Exhibit 19.3,
12
2.15. Section 21.1 of the Purchase Agreement is hereby amended by
adding the following sentence at the end of such section:
To the extent not otherwise indemnifiable under any other
indemnity provision of this Agreement, Seller shall indemnify
and hold harmless Purchaser and each of its Affiliates
(including the Companies) from and against any and all Damages
(including, without limitation, costs and expenses of
litigation and reasonable attorneys' fees and expenses for
physical delivery of shares) arising out of or related to
claims asserted under Seller's stock option programs or any
stock purchase plan of Seller or its Affiliates against
Purchaser or any of its Affiliates (including the Companies).
2.16. The section of the Purchase Agreement entitled "Section 24,
Conduct of Business prior to Closing" is hereby amended by adding the following
Sections 24.14, 24.15, 24.16, 24.17 and 24.18:
24.14 Prior to the Closing, Seller shall cause (a) the
Hokuriku Shares owned by it to be transferred to KPC
as described on Exhibit 11.1.1(d), and (b) the
Shares of the Indian entities described on Exhibit
11.1.1(e) to be transferred to Seller's new
companies as described therein.
24.15 If there are any Shares not transferred at Closing
pursuant to Section 12.5, including the Shares of
Lupharma UK Holding II, Ltd., the rights of Purchaser
as described in Section 24.5(a) shall continue
post-Closing for purposes of determining Seller's
compliance with the terms of this Purchase Agreement,
including, without limitation, compliance with the
terms in Sections 12.5 and 24.8. Such rights shall
terminate when all such Shares are transferred in
accordance with Section 12.5.
24.16 Seller shall, without further consideration and at no
additional cost to Purchaser in excess of those costs
that the Companies would have incurred had they
remained Affiliates of Seller (such costs to be
calculated on a basis consistent with the pro forma
financial statements provided to Purchaser in the
London data room in November 2000, or to Purchaser
during the November 2000 Seller management
presentation), take such acts, or cause such acts to
be taken, as necessary to ensure uninterrupted and
lawful use by the Companies worldwide from and after
the Closing Date of all information technology
("IT"), software, data and IT related equipment and
hardware, including routers and telecommunications
and data equipment (collectively, "IT Rights")
utilized by the Companies in the conduct of their
respective businesses. Such acts shall include, if
necessary to insure such uninterrupted and lawful
use, the valid transfer of Seller's or its
Affiliates' existing IT Rights, including, without
limitation, any rights pertaining to any IT or
software customized by Seller and/or its Affiliates,
the separate procurement of such IT Rights in the
name of and for the benefit of the Companies or the
valid transfer of copies of any
13
Seller-owned software (including source codes and
documentation) (the "IT/Software Licenses"). Such
IT/Software Licenses include, without limitation, the
following:
------------------------------ ---------------- ----------
Software Package Software Vendor Number of
Licenses
------------------------------ ---------------- ----------
MS Office 2000 Microsoft 6022
------------------------------ ---------------- ----------
MS Operating System Microsoft 6022
------------------------------ ---------------- ----------
PC Anywhere Symantec 6022
------------------------------ ---------------- ----------
F Prot F Secure 6022
------------------------------ ---------------- ----------
Win Zip Win Zip 6022
------------------------------ ---------------- ----------
Lotus Notes IBM 5339
------------------------------ ---------------- ----------
SAP development SAP 53
------------------------------ ---------------- ----------
SAP operational user SAP 2166
------------------------------ ---------------- ----------
SAP information user SAP 371
------------------------------ ---------------- ----------
SAP AR user SAP 19
------------------------------ ---------------- ----------
SAP BC user SAP 68
------------------------------ ---------------- ----------
SAP CAT - -
------------------------------ ---------------- ----------
Oracle concurrent users Oracle 226
------------------------------ ---------------- ----------
Netware Novell 6022
------------------------------ ---------------- ----------
Documentum Documentum 126
------------------------------ ---------------- ----------
Brazil outstanding SAP invoice to BASF Corp -
------------------------------ ---------------- ----------
R&D MDL - 500
------------------------------ ---------------- ----------
Win BLITZ - -
------------------------------ ---------------- ----------
BLITZ - -
------------------------------ ---------------- ----------
SPRINT - -
------------------------------ ---------------- ----------
BASF HR - -
------------------------------ ---------------- ----------
TPS - -
------------------------------ ---------------- ----------
ELJ BASF -
------------------------------ ---------------- ----------
Oracle Clinical Oracle -
------------------------------ ---------------- ----------
ClinTrace Domain Pharma -
------------------------------ ---------------- ----------
MSI Suite MSI -
------------------------------ ---------------- ----------
24.17 Seller (a) shall procure that, effective no later
than December 31, 2001, any license relating to
Pharmaceutical Products and granted by it or any of
its Affiliates to BASF LYNX Bioscience AG
("BASF/LYNX"), shall be terminated or shall expire,
including any license to use the "TET" technology
and, (b) hereby undertakes not to exercise or obtain
any benefit of any right of first refusal, first
offer or similar rights on developments, research or
products arising from BASF/LYNX, the research,
development, importation, use, registration,
manufacture, distribution or sale of which would
violate or be inconsistent with Section 27.1.
24.18 The parties acknowledge that Purchaser shall not
acquire certain inventories of the Companies with a
book value of up to $30 million (the "Excluded
Inventories"). No later than twenty (20) business
days after the Closing, Purchaser shall deliver to
Seller a statement describing the Excluded
Inventories ("Excluded Inventories Notification").
Seller shall, at its sole cost and expense (a) remove
from the Companies' premises all of the Excluded
Inventories, and (b) destroy of the Excluded
Inventories in
14
compliance with applicable law ("Inventory
Destruction"), no later than ten (10) business days
after Seller's receipt of the Excluded Inventories
Notification or such later date as may be necessary
to comply with applicable laws governing such
Destruction (the "Destruction Date"). Seller shall
certify to Purchaser in writing that the Inventories
Destruction shall have been completed in accordance
with this Section 24.18 no later than ten (10)
business days after the Destruction Date. If the book
value of the Excluded Inventories is less than $30
million, Seller shall pay to Purchaser, no later than
10 business days after Seller's receipt of the
Excluded Inventories Notification, an amount in cash
by immediately available same day funds equal to the
difference between $ 30 million and such book value.
24.19 After the Closing, Seller shall continue to
prosecute, at its own expense and with its own
counsel, the EBEWE Insurance Claims. Each of
Purchaser and Seller shall pay to the other party
50% of any proceeds or recovery from the EBEWE
Insurance Claims (net of expenses and any Taxes
arising in connection therewith) that it may receive
no later than 5 business days after receipt by
Purchaser or Seller (as the case may be) of such
proceeds or recovery. "EBEWE Insurance Claims" shall
mean claim No. C 00006292 asserted by Seller on
behalf of EBEWE Arzneimittel GmbH ("EBEWE") against
American International Group, Inc. (AIG) under Policy
No. Y10FID2100 in the approximate amount of
28,400,000 Euro, relating to losses incurred by EBEWE
on account of unauthorized forward currency exchange
transactions undertaken by former employees of EBEWE
with funds of EBEWE.
2.17 Section 24.8 of the Purchase Agreement is hereby amended by adding
the following sentence to the end of such Section:
With respect to the Shares that are not transferred at Closing
(the "Excluded Companies"), Seller covenants that it will, and
will cause the Excluded Companies to: (a) provide Purchaser
with a contact person of each of such Companies who shall
coordinate any procedures with respect to such Companies for
financial reporting or the transfer of such Companies
following the Closing, (b) permit Purchaser and its
representatives to have reasonable access to the assets,
employees, books and records of such Companies, and shall
furnish or cause to be furnished to Purchaser such financial,
tax, regulatory, R&D and operating data and other available
information with respect to such Companies as Purchaser may
from time to time request or that may otherwise be legally
required by Purchaser, and (c) upon the transfer of the Shares
of each such Excluded Company to Purchaser, remit all earnings
of such Company through the date of such transfer as soon as
practicable (but no later than five (5) business days) after
the date of such transfer, together with interest thereon at a
rate of six percent per annum from the Closing through the
date on which such earnings are paid to the Company.
15
2.18. Section 25 of the Purchase Agreement is hereby amended by
amending and restating Sections 25.2, 25.3 and 25.4 in their entirety and by
adding a new Section 25.5, as follows:
25.2 Seller hereby grants to Purchaser and Purchaser's
Affiliates including the Companies, with respect to
Seller Shared Substance Related Patents an
irrevocable, exclusive fully paid-up license for the
life of the respective patent, with the right to
grant sublicenses, in the Pharmaceutical Field and
the Pharmachemical Field.
25.3 Purchaser hereby grants to Seller with respect to the
Shared Substance Related Patents an irrevocable,
exclusive fully paid-up license for the life of the
respective patent, with the right to grant
sublicenses, outside of the Pharmaceutical Field and
the Pharmachemical Field.
25.4 Except as otherwise agreed by the parties, the
following procedures will govern Shared Substances
that are located on the premises of one party but
that are not physically present already in the
compound collection of the other party. Either
Purchaser or Seller may request samples of Shared
Substances from the other party, subject to the
following:
(a) The number of samples of different compounds
requested by a party shall not exceed 20,000 in the
aggregate;
(b) Each solid sample request must be for a physical
quantity of 20 milligrams or less;
(c) No party shall be required to provide any solid
sample of Shared Substances if such party has less
than 70 milligrams of such Shared Substances
remaining in such party's compound library; and
(d) No party shall be required to provide any sample
requested after September 3, 2002.
25.5 The parties acknowledge that Seller owns certain
patents relating to certain inactive ingredients that
are being supplied by Seller or one of its Affiliates
to the Companies, commonly known as "excipients"
("Excipients"). Seller agrees that, with respect to
Excipients that are the basis of, or included in, any
product registrations of any of the Companies
("Covered Excipients"), (a) Seller shall, and shall
cause its Affiliates to, continue to supply the
Companies with their requirements of Covered
Excipients on terms and conditions generally offered
to Seller's comparable customers, and (b) if Seller
and its Affiliates cease to manufacture and sell any
Covered Excipients, Seller shall (i) provide
Purchaser with not less than 12 months prior written
notice of such
16
cessation, and (ii) grant the Companies an
irrevocable, non-exclusive, paid-up license for the
life of the respective patent, with the right to
grant sublicenses, to make, have made and use the
Covered Excipients to produce any of the Companies'
products in the Pharmaceutical Field.
2.19. The section of the Purchase Agreement entitled "Section 26,
Conduct and Litigation" is hereby amended as follows:
(a) Section 26.1 (i) of the Purchase Agreement is hereby
amended by inserting the phrase "to the extent" immediately preceding
the existing phrase "based upon, arising out of, or related to."
(b) Section 26.1 (iv) of the Purchase Agreement is hereby
amended by replacing the existing term "26(a)(i)" with the term
"26.1(i)."
(c) Section 26.1 of the Purchase Agreement is hereby amended
by adding the following sentence at the end of such section:
Loss, liability, damage and expenses covered by this
Section 26 shall include, without limitation, any
expenses arising from the provision of free product
by KPC, net of any reserve on the Closing Date
Balance Sheet for any such product.
(d) Section 26.2 of the Purchase Agreement is hereby amended
by inserting the term "hereafter" immediately preceding the existing
phrase "commenced against it" in the first sentence of such section.
(e) Section 26.3 of the Purchase Agreement is hereby amended
by inserting the phrase "Section 26.2 above and" immediately preceding
the existing phrase "Section 26.4" in the first sentence of such
section.
(f) Section 26.6 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
Insurance Proceeds and Settlement Amounts. Seller
shall be entitled to all IN RE SYNTHROID(R) MARKETING
LITIGATION Settlement Amounts. In addition, if and to
the extent that Seller prosecutes, at its own expense
and with its own counsel, the Insurance Litigation,
Seller shall be entitled to any proceeds or recovery
arising from or out of the Insurance Litigation.
Purchaser hereby assigns any and all rights, claims
and/or interests in the Insurance Litigation to
Seller, including authorizing Seller to xxx, continue
suit, prosecute, receive and retain any and all
recoveries or proceeds in or from the Insurance
Litigation without limitation in the name of Xxxxx
Pharmaceutical Company, all and with the same force
and effect as if Xxxxx Pharmaceutical Company and/or
any and all predecessors and/or successors to Xxxxx
Pharmaceutical Company had done so.
17
(g) Section 26.7(i) of the Purchase Agreement is hereby
amended by deleting the existing term "and" immediately preceding the
existing term "(3)" and by adding the following phrase at the end of
such section:
; (4) the dismissal of RXD PHARMACIES, INC. V. BASF,
ET AL., No. 98CV-5560, United States District Court
for the Eastern District of Pennsylvania; (5) IN THE
MATTER OF COORDINATED PROCEEDINGS SPECIAL TITLE,
PHARMACEUTICAL CASES I, II AND III J.C.C.P. Nos.
2969, 2971 and 2972 in the Superior Court of
California; and (6) any settlement or similar
agreements entered into in connection therewith,
including the Master Agreement of Settlement and
Release entered into by Knoll on February 1, 1999.
(h) Section 26.7(ii) of the Purchase Agreement is hereby
amended by amending and restating such section in its entirety as
follows:
(ii) "Section 26 Conduct" shall mean the conduct
alleged, or conduct substantially similar to that
alleged, in the Section 26 Litigation, and which in
each case occurs prior to Closing;
(i) Section 26.7 (iii) of the Purchase Agreement is hereby
amended by adding the following phrase at the end of such Section and
immediately before the existing term "and":
and any policies in excess thereof that were issued
to Xxxxx Pharmaceutical Company or its predecessors
prior to the Closing.
2.20. Section 27.2 of the Purchase Agreement is hereby amended by
adding the following sentence at the end of such section:
Further, subject to the following proviso, the preceding
paragraph shall not prevent Seller from maintaining its equity
ownership interest in the joint venture company BASF/LYNX;
PROVIDED, that (x) any such equity ownership interest
percentage shall be not more than 45%, (y) such equity
ownership interest shall be for financial investment purposes
only and shall not extend, directly or indirectly, to (1) any
other arrangements, contracts, revenue sharing, licensing or
right of first refusal, first offer or similar rights on
developments, research or products arising from BASF/LYNX, the
research, development, importation, use registration,
manufacture, distribution or sale of which would violate or be
inconsistent with Section 27.1, or (2) other opportunities of
any kind with such joint venture company in any manner that
would otherwise violate or be inconsistent with Section 27.1,
and (z) no assets, properties, rights or interest, including
Patents or Intellectual Property, of any of the Companies or
the BASF Pharmaceutical Business shall be made available,
provided or licensed to or used
18
by such joint venture company, including, without limitation,
through any license of "TET" technology.
2.21. The section of the Purchase Agreement entitled "Section 27,
Non-Compete Covenant" is hereby amended by adding the following Section 27.3:
27.3 Notwithstanding anything in Sections 27.1 or 27.2 to
the contrary, the operation of the restrictions in
such sections in Turkey shall be for a period of five
years following the Closing.
2.22. Exhibit 4.2(b) to the Purchase Agreement is hereby deleted.
2.23.Exhibits 5.1 and 5.2 to the Purchase Agreement are hereby amended
as follows:
(a) Exhibit 5.1 is hereby amended to add the following
patent cases:
00480/1059
00480/1075
00480/1164
00480/1200
00480/1201
2475/8170
00480/1218
00650/1003
2063/8460
(b) Exhibit 5.2 is hereby amended to add the following
patent cases:
00050/48377
00050/49589
00050/49033
00050/49619
00050/49931
(c) In addition, each of Exhibits 5.1 and 5.2 are hereby
amended to incorporate any and all patents and/or patent applications,
including but not limited to all divisionals, continuations,
continuations in part, reissues, renewals, extensions and supplementary
protection certificates thereof and therefor, existing anywhere in the
world, not specifically listed but which otherwise are owned by Seller
and:
(i) in the case of Exhibit 5.1, relate exclusively
to the Pharmaceutical Field and/or the BASF Pharmaceutical
Business; and
(ii) in the case of Exhibit 5.2, relate but not
exclusively relate to the Pharmaceutical Field and/or the BASF
Pharmaceutical Business.
19
2.24. Exhibit 7.4 to the Purchase Agreement is hereby amended by
amending and restating such exhibit in its entirety as follows:
KNOLL INDIA NET ASSET VALUE STATEMENT
EXHIBIT 7.4
SECTION 1
KNOLL INDIA NET ASSET VALUE CALCULATION
1.1 (a) Prior to the Closing, Seller shall ascertain the
aggregate value of the net assets of Knoll India (the
"Knoll India Reference Net Asset Value") as of
September 30, 2000 on the basis of the unaudited
proforma balance sheet contained in the attached
Exhibit 9.1 (a), and adjusted to eliminate Cash,
Financial Debt, deferred Taxes and Accrued Taxes.
(b) (i) If the value of the net assets of Knoll India
as of the Closing as determined in accordance with
the principles set forth in Section 2 below and as
shown on the Knoll India Closing Net Asset Value
Statement (hereinafter referred to as the "Knoll
India Closing Net Asset Value") is less than the
Knoll India Reference Net Asset Value, Seller shall
pay to Purchaser Seller's pro rata share, in
accordance with its percentage interest in Knoll
India as of the Closing, of the amount by which the
Knoll India Closing Net Asset Value is less than the
Knoll India Reference Net Asset Value.
(ii) If the Knoll India Closing Net Asset
Value exceeds the Knoll India Reference Net Asset
Value, such excess (the "Knoll India Net Assets
Amount") shall be paid pro rata to Seller in
accordance with its percentage interest in Knoll
India as of the Closing.
1.2 Each of the amounts determined in accordance with
Section 1.1 (b)(i) above shall be paid by Seller
within 5 working days after the applicable Closing
Net Asset Value Statement has become final in
accordance with Section 2.4 hereof in immediately
available funds to Citibank, N.A., New York, New York
(ABA #000000000) for credit to Xxxxxx Laboratories
(Acct. #00001329). Any credit to Purchaser shall be
made in U.S. dollars at the spot exchange rate in
effect at two business days prior to the date of
payment.
SECTION 2
FINAL CLOSING KNOLL INDIA NET ASSET VALUE STATEMENT
2.1 For the purpose of determining the amount of the
payments, if any, pursuant to Section 1 above, Seller
shall deliver to Purchaser as promptly as practicable
(but in any event no later than 15 working days)
after the Closing a condensed balance sheet of Knoll
India, certified by Knoll
20
India's chief financial officer (hereinafter referred
to as "Knoll India Closing Net Asset Value
Statement") reflecting the Knoll India Closing Net
Asset Value. The Knoll India Closing Net Asset Value
Statement shall be prepared in accordance with the
Report Principles (as defined in Section 13.20(a) of
the Agreement) as of the Closing Date, shall be
prepared and consolidated in a manner consistent with
Exhibit 9.1(a), shall fairly present the net assets
of Knoll India as of the Closing Date, and shall be
adjusted in a manner consistent with Exhibit 9.1(b)
(to the extent applicable) and further adjusted in
accordance with the principles set forth in Exhibit
10.1 hereto (to the extent applicable).
2.2 Purchaser shall have 10 working days after receipt of
the Knoll India Closing Net Asset Value Statement
during which it may review such Closing Net Asset
Value Statement, and raise in writing and in
reasonable detail any objections against specified
items such Closing Net Asset Value Statement,
indicating precisely the higher or lower value which
in Purchaser's opinion should be allocated to each
item in dispute. During this period of time,
Purchaser and its auditors shall be granted access to
all relevant information produced by Seller or
Seller's Auditors. Any item in the Knoll India
Closing Net Asset Value Statement objected to by
Purchaser shall hereinafter be referred to as an
"Knoll India Disputed Item".
2.3 If and insofar as Purchaser does not raise objections
to the Knoll India Closing Net Asset Value Statement
in accordance with Section 2.2 above, the Closing Net
Asset Value arrived at in the Knoll India Closing Net
Asset Value Statement shall be final and binding upon
the parties. To the extent that the Net Asset Value
arrived at in the Knoll India Closing Net Asset Value
Statement is final and binding upon the parties, the
adjustment payment to be made by Purchaser or Seller
according to Section 1 above shall be made in
accordance with such Section.
2.4 The parties shall use their best efforts to resolve
the Knoll India Disputed Items within 15 working days
following the receipt by Seller of Purchaser's
objections pursuant to Section 2.3 above.
2.5 Any Knoll India Disputed Items not resolved pursuant
to Section 2.4 above shall be submitted by the
parties to Ernst & Young for review. Should Ernst &
Young become unavailable, the parties shall mutually
agree on another accounting firm of international
standing.
2.6 In rendering its decision, the accounting firm shall
consider only the Knoll India Disputed Items and,
with respect to each such Knoll India Disputed Item,
shall stay within the range of the values allocated
to it by the parties. The accounting firm shall
deliver in writing to Seller and Purchaser as
promptly as practicable its determination of the
Knoll India Disputed Items stating the reasons of its
decision. The reasons shall specifically
21
address the arguments brought forward by the parties
with respect to each Knoll India Disputed Item. Such
determination shall be final and binding upon the
parties absent manifest mathematical errors. The
accounting firm shall allocate its fees to the
parties in accordance with Sections 91 et seq. of
the German Civil Procedure.
2.25. A new Exhibit 11.1.1(d) to the Purchase Agreement is hereby
created and is as follows:
EXHIBIT 11.1.1(d)
The Hokuriku Shares owned by Lupharma and Transpharm shall be
duly and validly transferred by Lupharma and Transpharm
directly to the Seller, and the Seller shall duly and validly
transfer such shares directly to KPC pursuant to the Share
Sale and Transfer Agreement ("KPC Hokuriku Shares Agreement").
For the avoidance of doubt, such shares, as transferred to
KPC, shall, for purposes of the Purchase Agreement, be deemed
"Shares."
At Closing, the Promissory Note issued by KPC pursuant to the
KPC Hokuriku Shares Agreement is hereby assigned to Purchaser
by its holder upon payment of the Aggregate Purchase Price.
Any stamp or transfer taxes or VAT incurred in connection with
the transfers contemplated by this Exhibit 11.1.1(d) shall
be borne by Purchaser.
Purchaser shall not make any Section 338(h)(10) election with
respect to the acquisition by it of the Hokuriku Shares.
2.26. A new Exhibit 11.1.1(e) to the Purchase Agreement is hereby
created and is as follows:
EXHIBIT 11.1.1(e)
1. (a) Seller shall cause the Shares of Xxxxx
Pharmaceuticals Ltd. (India) ("Knoll India") owned by
Lupharma to be duly and validly transferred by
Lupharma to a newly-formed corporation organized
under the laws of the United Kingdom and wholly owned
by the Seller or any Affiliate of Seller other than
the Companies ("BASF UK Public Holding Company").
(b) Seller shall then cause, on the Closing Date, all
of the issued and outstanding shares of BASF UK
Public Holding Company to be duly and validly
transferred to the Purchaser entity, Abbott Equities
Holdings Limited, a U.K. company.
2. Seller shall cause the Shares of Xxxxx International
Ltd. (India) ("Knoll Private") owned by Xxxxx XX to
be duly and validly transferred by Knoll
22
AG to a newly-formed corporation (other than BASF UK
Public Holding Company) that is organized under the
laws of the United Kingdom and wholly owned by the
Seller or any Affiliate of Seller other than the
Companies ("BASF UK Private Holding Company").
3. Any stamp or transfer taxes or VAT incurred in
connection with the transfers contemplated by
paragraphs 1(a) and 2 of this Exhibit 11.1.1(e)
(the "India Transfers") shall be borne by Purchaser.
4. For the avoidance of doubt, in addition to Knoll
India, the BASF UK Public Holding Company shall, for
purposes of the Purchase Agreement, be deemed an
"Other Foreign Subsidiary."
2.27. A new Exhibit 12.2(d) to the Purchase Agreement is hereby created
and is as follows:
EXHIBIT 12.2(d)
EXCLUDED COMPANIES
1. Boots Galenika d.o.o. (Yugoslavia)
2. Xxxxx Polska Sp zoo (Poland)
3. Xxxxx Pharmaceutical PTE Ltd. (Singapore)
4. Xxxxx XX & Co OHG
5. Minden Farmaceutical Lda.
6. Xxxxx International Private Ltd. (India) and BASF UK
Private Holding Company
7. Latinoamericana de Farmacos Lda. (Colombia)
8. BASF Management Services S.A. (Spain)
9. Knoll Centroamericana (Guatemala)
10. Transpharm, Inc.
2.28. Exhibit 8.1 is amended and restated in its entirety as attached
hereto as Exhibit 8.1.
2.29. Exhibit 13.21 to the Purchase Agreement is hereby amended by
deleting therefrom "Development and Distribution Agreement between Xxxxx, Ltd.
and Byk Xxxxxx, dated May 1, 1996."
2.30. A new Exhibit 13.29 to the Purchase Agreement is hereby created
and is attached hereto as Exhibit 13.29.
2.31. A new Exhibit 15.1(I)(d) to the Purchase Agreement is hereby
created and is attached hereto as Exhibit 15.1(I)(d).
2.32. The Purchase Agreement is hereby amended by replacing, in every
provision in which it occurs, the existing term "Separate Sale and Transfer
Contracts" with the term "Separate Transfer Contracts."
23
SECTION 3
MISCELLANEOUS
3.1. Notices. All notices, statements and other communications to be
given with respect to this Amendment shall be in the English language and sent
by registered mail, by facsimile transmission or by messenger to the parties at
the following addresses or at such other addresses as shall be specified by the
parties:
If to Seller: BASF Aktiengesellschaft
Central Legal Xxxxxxxxxx
00000 Xxxxxxxxxxxx, Xxxxxxx
Telefax: 49.621.60.20410
If to Purchaser: Xxxxxx Laboratories
Xxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Attn: General Counsel
3.2. Entire Agreement; Written Form.
(a) The Purchase Agreement as amended by this Amendment constitutes the
entire agreement and supersedes all other prior agreements and undertakings both
written and oral among the parties with respect to the subject matter thereof
and hereof. In the event of any translation of this Amendment, the English
version shall govern.
(b) Any changes in this Amendment including, but not limited to, this
clause shall only be valid if made in writing and executed by both Seller and
Purchaser or, if necessary, in a stricter form.
3.3. Assignment; Set-off.
(a) Neither Seller nor Purchaser may assign any rights or obligations
under this Amendment to any third party without the consent of the respective
other party.
(b) Purchaser shall not be entitled to offset any claim it may have
against Seller (whether under this Amendment or otherwise) against the claim of
Seller for payment of the Aggregate Purchase Price pursuant to Section 8 of the
Purchase Agreement as amended by this Amendment unless Purchaser's claim has
become final (rechtskraftig) or is undisputed.
3.4. Governing Law, Jurisdiction.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Federal Republic of Germany, without regard to its choice
of law rules.
24
(b) Except as otherwise expressly stated elsewhere in this Amendment,
all disputes arising out of or in connection with this Amendment, including any
question regarding its existence, validity or termination, shall be referred to
and finally resolved by arbitration in accordance with the Rules of the German
Institute of Arbitration e.V. (DIS) without recourse to the ordinary courts of
law, provided that the Chairman of the Arbitral Tribunal shall not be of the
same nationality as that of any of the parties to a given dispute. The place of
arbitration shall be Frankfurt; the language of the arbitration shall be
English.
3.5. Expenses.
(a) Except as specifically provided otherwise in this Amendment, each
party shall bear its own expenses and fees (including attorneys', accountants',
consultants' and advisors' fees) in connection with this Amendment or any of the
transactions contemplated herein, including any merger control filing and
filings with other governmental authorities made by such party.
(b) Fees and costs triggered by the implementation of this
Amendment, including but not limited to any notarial fees, any transfer or
sales Tax (including value added Tax and stamp duties and property transfer
Tax according to Section 5 para 3 Grunderwerbssteuergesetz), any registration
or publication fees shall be borne by Purchaser.
3.6. Severability. Should any of the provisions of this Amendment be or
become fully or partly invalid or unenforceable, the remainder of the Amendment
shall be valid or enforceable. The invalid or unenforceable provision shall be
replaced by a provision which shall come as close as possible to the economic
purpose of the invalid provision. Any gaps in this Amendment shall be filled by
a provision which the parties as prudent businessmen would in good faith have
agreed to, had they considered the matter not covered by this Amendment.
25
EXHIBIT 13.29
CHAIN OF TITLE OF 66.67 % SHAREHOLDING IN HOKURIKU
SINCE JANUARY 1, 2000
January 1, 2000: Xxxxx XX (direct 100% subsidiary of BASF AG since
before 2000) owns 66.67% of the shares in Hokuriku
June 2000: Lupharma GmbH and Transpharm GmbH each acquired
33.335% of the shares in Hokuriku from Xxxxx XX.
Lupharma and Transpharm are, at the time of such
acquisition, each 100% owned by Xxxxx XX and
therewith indirectly by BASF AG since before January
1, 2000
June 2000: Subsequent to the acquisition of the said shares in
Hokuriku, Lupharma GmbH and Transpharm GmbH were sold
to BASF AG and then contributed to BASF Pharma
Holding GmbH, which is and has been a 100% BASF AG,
wholly owned subsidiary since before 2000.
26
EXHIBIT 15.1(I)(d)
XXXXXX LABORATORIES
BASF Pharma - Protium - Total Worldwide
($MM)
ABBOTT FORECAST
2001 2002 2003 2004 2005 2006
-----------------------------------------------------------------
Total Abbott Net Sales 24.0 35.0 37.0 39.0 41.0 43.0
Earnings Before Interest & Taxes 7.9 11.6 14.1 14.8 17.6 18.5
Working Capital Cash Flow (5.7) (2.7) (0.7) (0.5) (0.6) (0.5)
-----------------------------------------------------------------
Total Cash Flow 2.2 8.9 13.4 14.3 17.0 18.0
2001-2006 NPV @ 12.5% 51.4
27
EXHIBIT 12.5
DEFERRED CLOSINGS
---------------------------------------- ---------------------------------------- ------------------------------
COMPANY/COUNTRY REASON ALLOCATED PURCHASE PRICE
---------------------------------------- ---------------------------------------- ------------------------------
Knoll Columbiana S.A. Laboratorio Competition law $ 18,000,000
Farmaceutico/Columbia
---------------------------------------- ---------------------------------------- ------------------------------
Knoll spol. sro./Slovak Republic Competition law/embassy approval of 2,100,000
transfer documents
---------------------------------------- ---------------------------------------- ------------------------------
Xxxxx Pharmaceuticals South Africa Pty. Competition law 8,300,000
Ltd./South Africa
---------------------------------------- ---------------------------------------- ------------------------------
Knoll Produtos Quimicos e Farmaceuticos Funds flow/central bank 100,000,000
Ltda./Brazil
---------------------------------------- ---------------------------------------- ------------------------------
Knoll spol. s. r. o./Czech Republic Documentation translation requirements 3,600,000
---------------------------------------- ---------------------------------------- ------------------------------
Xxxxx International Private Ltd./India 6,800,000
Private Holding Company
---------------------------------------- ---------------------------------------- ------------------------------
Total $ 138,800,000
---------------------------------------- ---------------------------------------- ------------------------------
---------------------------------------- ---------------------------------------- ------------------------------
29
EXHIBIT 8.1
Amount in USD 000
Knoll Argentina SA 10,400
Knoll Australia Pty. Ltd. 21,000
EBEWE Arzneimittel GmbH 72,000
Knoll Produtos Quimicos e Farmaceuticos Ltda. 100,000
Knoll Belgium S.A. N.V. 14,300
Xxxxx Colombiana S.A. 18,000
Knoll spol. s.r.o. (Czech Republic) 3,600
Laboratoires Xxxxx France S.A. 125,000
Xxxxx XX 3,281,000
Lupharma UK Holding I, Ltd. 57,570
(Xxxxx Pharmaceuticals Ltd.)
Lupharma UK Holding II, Ltd. 6,800
Xxxxx Farmaceutici S.p.A. 152,000
Ravizza Farmaceutici S.p.A. 133,780
Xxxxx Japan KK 3,450
Quimica Xxxxx de Mexico S.A. de C.V. 50,000
Immobiliaria Xxxxxxxxxx X.X. 2,800
Xxxxx B.V. 956,300
Xxxxx Pharmaceuticals Ltd. (Pakistan) 15,550
Knoll spol. s.r.o. (Slovak Republic) 2,100
Xxxxx Pharmaceuticals South Africa Pty., Ltd. 8,300
Laboratorios Xxxxx, X.X. 106,000
Lufarma Espanola S.L. 11,400
Xxxxx Lakemedel AB 1,200
Xxxxx Bio-Research S.A. 59,400
Xxxxx XX (Liesthal) 63,600
Xxxxx Xxxxx Ilac ve Ecza tic. Ltd. Sti 37,400
BASF Pharma Ltd. 0
Xxxxx Ltd. 93,000
BASF Pharmaceutical Corp. 1,356,050
Assets from BASF AG
Transferred Patents 160,000
Licensed Patents 8,000
6,930,000
3
