AGREEMENT AND THIRD AMENDMENT TO
PURCHASE AGREEMENT
This Agreement and Third Amendment to Purchase Agreement, dated July 23,
2001 (this "AGREEMENT") is by and between BASF Aktiengesellschaft ("SELLER")
and Xxxxxx Laboratories ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller are parties to that certain Purchase
Agreement dated as of December 14, 2000 (Number 194 of the Roll of Deeds for
2000 of Xx. Xxxxxxx Xxxxxxx, notar, at Frankfurt am Main), as amended by the
Amendment dated as of March 2, 2001 (Number 226 of the Roll of Deeds for 2001
of Xx. Xxxxxxx Xxxxxx, xxxxx, at Frankfurt am Main) and the Second Amendment
dated as of May 18, 2001 (Number 56 of the Roll of Deeds for 2001 of Xx.
Xxxxxxx Xxxxxxx, notar, at Frankfurt am Main), pursuant to which Purchaser
acquired the Shares and Transferred Patents (collectively, the "PURCHASE
AGREEMENT").
WHEREAS, Sections 9 and 10 of the Purchase Agreement provide for an
adjustment of the Non-Indian Purchase Price according to the procedures
described therein (the "ADJUSTMENT PROCEDURES");
WHEREAS, Exhibit 7.4 of the Purchase Agreement provides for the
determination of the Xxxxx India Net Asset Value;
WHEREAS, in furtherance of the Adjustment Procedures, Deloitte & Touche
GmbH ("D&T") issued an Auditor's Report, together with an opinion thereon,
dated April 20, 2001 (collectively, the "D&T REPORT");
WHEREAS, Seller and Purchaser (the "PARTIES") have agreed to certain
adjustments, described more particularly in EXHIBIT A-1 hereto, to the
Closing Net Asset Value reflected in the D&T Report, and that such Closing
Net Asset Value as so adjusted, as described more particularly in EXHIBIT A-2
hereto, shall be the "CLOSING NET ASSET VALUE" for purposes of this Agreement
and Sections 9.1(b) and 9.1(c) of the Purchase Agreement;
WHEREAS, the Parties have agreed to defer their mutual obligation under
Section 10.2 of the Purchase Agreement to allocate the amount by which the
Closing Net Asset Value exceeds the Reference Net Asset Value (the
"ADDITIONAL PURCHASE PRICE") until completion of the procedures described in
Section 21.4 of the Purchase Agreement and as more particularly described
herein;
WHEREAS, in connection with the Adjustment Procedures, Seller has agreed
to reimburse Purchaser, and indemnify Purchaser against, certain matters and
Damages, as described more particularly herein; and
WHEREAS, the Parties desire to amend (a) Section 18 of the Purchase
Agreement to clarify its application to Closing Tax Assets (as defined in
Section 4 of this Agreement), and (b)
Section 27.3 of the Purchase Agreement with respect to the application of
such Section to Mexico.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and representations below, the Parties agree as follows:
1. CERTAIN DEFINITIONS.
Terms used in this Agreement with initial capital letters that are
not otherwise defined in this Agreement will have the meanings given to them
in the Purchase Agreement.
2. ADJUSTMENTS, PAYMENT AND ALLOCATION.
(a) The Closing Net Asset Value contained in the D&T Report set
forth as Item A to Exhibit A-2 shall be adjusted in accordance with Exhibit A-1
hereto, and such Closing Net Asset Value as so adjusted, shall be
EUR 2,082,600,000 and as such the "FINAL CLOSING NET ASSET VALUE."
(b) The Parties hereby acknowledge and agree that the amount of the
Additional Purchase Price shall be EUR 1,332,200,000, of which EUR
1,064,300,000 was paid to Seller on May 23, 2001 leaving EUR 267,900,000
owing by Purchaser to Seller to be satisfied and to be paid as follows:
(i) EUR 87,600,000 of net debt owing by BASF shall be forgiven as described
in Items H and I on Exhibit A-2, and (ii) EUR 180,300,000, together with
interest thereon at the rate of six percent (6%) per annum from March 2, 2001
to the date of payment, will be paid by Purchaser to Seller, within two (2)
business days from the date of this Agreement, by transfer of immediately
available funds to BASF AG, Konto: 0201000700, Commerzbank Ludwigshafen,
BLZ 00000000, SWIFT XXXXXXXX000.
(c) The Parties further acknowledge and agree that upon the final
determination and payment of the Seller or Purchaser Pension Indemnification
Amount, if any, in accordance with the provisions in Section 21.4 of the
Purchase Agreement (the "PENSION AMOUNT"), such Pension Amount will be netted
against or added to, as the case may be, the Additional Purchase Price (as so
adjusted, the "ADJUSTED ADDITIONAL PURCHASE PRICE"), and the Parties will
agree upon allocations of the Adjusted Additional Purchase Price as provided
in Section 5 of this Agreement.
3. INDEMNIFICATION AND REIMBURSEMENT.
(a) INDEMNIFICATION.
(i) Seller shall indemnify and hold harmless each member of
the Purchaser Group from and against all Damages (including without
limitation, costs and expenses of litigation, amounts paid in settlement and
reasonable attorneys' fees) arising out of or related to any of the items or
matters described on the disclosure letter (the "DISCLOSURE LETTER") to this
Agreement (each, an "INDEMNIFIED ITEM"). With respect to each Indemnified
Item, Purchaser shall have, or retain, as the case may be, full control of
the defense and the proceedings, including the right to settle. If requested
by Purchaser, Seller shall cooperate in good faith with Purchaser in order to
contest effectively such claim.
2
(ii) If and to the extent a specific provision is
set forth in the Disclosure Letter with respect to a Indemnified Item,
Seller's liability for indemnification pursuant to Section 3(a)(i) of this
Agreement shall be reduced by the amount of such provision.
(iii) Seller's liability for indemnification
pursuant to Section 3(a)(i) of this Agreement above shall not exceed, for
each Indemnified Item, the respective amounts set forth in the Disclosure
Letter.
(iv) If the liabilities of the Purchaser Group as
set forth in and established by the final order or judgment (without right of
appeal) of the case described in Item 13 in the Disclosure Letter together
with all Damages incurred by Purchaser Group in connection with such case
(collectively, "ITEM 13 LIABILITIES") are less than 1,534,000 Euro, Purchaser
shall pay to Seller an amount equal to (i) 1,534,000 Euro, minus (ii) the
Item 13 Liabilities. If the Item 13 Liabilities are greater than 1,534,000
Euro, Seller shall pay to Purchaser an amount equal to (i) the Item 13
Liabilities, minus (ii) 1,534,000 Euro, but in no event greater than
1,634,000 Euro.
(b) NO LIMITATIONS. Seller's obligations set forth in this
Section 3 shall be in addition to, independent of, and not be limited by, any
provision included in the Purchase Agreement, including Section 15 thereof.
4. Section 18.1 is amended by deleting the first sentence thereof
and substituting the following:
Seller shall indemnify Purchaser on an After-Tax Basis against (i)
any liability for Taxes relating to the Companies for any taxable
period ending on or before the Closing Date and any Pre-Closing
Straddle Period if and to the extent such liability exceeds the
liabilities or accruals taken into account by the Closing Net Asset
Value Statement for Taxes relating to said periods, PROVIDED,
HOWEVER, that such obligation to indemnify shall be limited to the
percentage of such liability that corresponds to the percentage of
the direct or indirect ownership interest of Seller in the Companies
sold hereunder and (ii) any permanent reduction in the nominal value
(determined as of the Closing Date) of any Tax Asset included on the
Closing Net Asset Value Statement resulting from an adjustment by
any governmental tax authority of any item (including, without
limitation, any loss carryforward, credit carryforward, deduction,
or income inclusion) taken into account in determining such Tax
Asset; PROVIDED that the indemnity under this clause (ii) shall
include any penalty imposed by the relevant governmental tax
authority related to such adjustment. Excluded are reductions to the
extent due to changes in tax law after the Closing Date, expiration
of items due to inability to utilize after the Closing Date,
elections made by Purchaser after the Closing Date and business
restructuring done by Purchaser after the Closing Date.
5. ALLOCATIONS. After the final determination and payment of the
Pension Amount in accordance with Section 2(c) of this Agreement, the Parties
will agree upon allocations of the Adjusted Additional Purchase Price in
accordance with Section 10.2 of the Purchase Agreement.
3
The Parties acknowledge and agree that any payment made by Seller to
Purchaser or any other member or Purchaser Group, or by Purchaser to Seller,
pursuant to Section 3 of this Agreement shall be considered part of the
Additional Purchase Price, and the Parties shall agree upon allocation(s) at
such time(s) as appropriate. The Parties further acknowledge and agree that
there will be no change to the purchase price allocation with respect to
Xxxxx India, Hokuriku or Xxxxx Pakistan for any reason.
6. NON-COMPETE AMENDMENT. The section in the Purchase Agreement
entitled "Section 27, Non-Compete Covenant" is hereby amended by adding the
following to Section 27.3 after the word "Turkey" and before the word
"shall": "and Mexico".
7. RESERVATION OF RIGHTS. Nothing in this Agreement shall be deemed
to be a waiver by either Party of any right that such Party may have under
and in accordance with the terms of the Purchase Agreement, as amended by
Sections 4 and 6 hereof, or an agreement to forbear from exercising any right
or remedy with respect to any provision in the Purchase Agreement including
Sections 15 and 18 (as so amended). Purchaser specifically reserves its
rights and remedies under the Purchase Agreement, the documents delivered in
connection therewith and applicable law.
8. NOTICES. All notices, statements and other communications to be
given with respect to this Agreement 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 Atiengeselleschaft
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
Telefax: 000-000-0000
Attn: General Counsel
9. ENTIRE AGREEMENT; WRITTEN FORM.
(a) The Purchase Agreement shall remain in full force and
effect and, together with this Agreement and the Disclosure Letter, shall
constitute the entire agreement of the parties with respect to the subject
thereof and hereof and supercede 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 Agreement, the
English version shall govern.
(b) Any changes in this Agreement, 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.
10. ASSIGNMENT. Neither Seller nor Purchaser may assign any rights
or obligations under this Agreement to any third party without the consent of
the respective other Party.
4
11. GOVERNING LAW; JURISDICTION.
(a) This Agreement 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.
(b) Except as otherwise expressly stated elsewhere in this
Agreement, all disputes arising out of or in connection with this Agreement,
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, Germany; the
language of the arbitration shall be English.
12. EXPENSES.
(a) Except as specifically provided otherwise in this Agreement,
each party shall bear its own expenses and fees (including attorneys',
accountants', consultants' and advisors' fees) in connection with this
Agreement or any of the actions contemplated herein.
(b) Fees and costs triggered by the implementation of this
Agreement, including but not limited to any notarial fees, any transfer or
sales Tax (including any value added Tax and stamp duties and property
transfer Tax according to section 5 paragraph 3 Grunderwerbssteuergesetz, any
registration or publication fees shall be borne by Purchaser.
13. SEVERABILITY. Should any of the provisions of this Agreement be or
become fully or partly invalid or unenforceable, the remainder of the Agreement
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 Agreement shall
be filled by a provision which the parties as prudent businessmen would be in
good faith have agreed to, had they considered the matter not covered by this
Agreement.
5
EXHIBIT A-1
Adjustments to Closing Net asset Value
XXXXX PHARMACEUTICAL
DISPUTED ITEMS LISTING
RESOLUTION AS OF JUNE 21, 2001
---------------------------------
RESOLVED RESOLVED
ISSUE # COUNTRY RESOLVED BASF ABBOTT
------- ------------------ ---------------------------------------------- -------- -------- -------
1 Consolidation Deferred Tax Balances as reported in the 250.674 4.401 a
closing balance sheet
2 Consolidation Adjustment to exchange rates in effect as 48.200 46.500 x
of 9/30/2000
3 Consolidation Equity Rollforward - Discontinued Operations 53.800
4 Consolidation Equity Rollforward - Unreconciled Balance 55.700
5 Consolidation Unreconciled Intercompany - Puerto Rico & 29.000
Xxxxx BV
6 Consolidation Unreconciled Intercompany 24.978
7 Consolidation Tax effect of BASF PharmaChemikalien GmbH & 5.162
Co. KG and Chemikalien GmbH sale
8 Consolidation NonTrade Intercompany Balances 603
9 Consolidation Xxxxx India - should be excluded from 9/30 & 2.259 a
3/2 balances
10 Consolidation Prepaid Insurance 5.693 a
11 Consolidation Prepaid Insurance 0
12 Consolidation Inventory Valuation Reserves 0
13 Consolidation Intercompany Receivables 18.584
14 Consolidation Accounts Payable/Accrued Liabilities 0
15 Argentina March sales recorded in February 48 120 a
00 Xxxxxxxxx Reserve for specific receivable risk 43
17 Argentina Vacation Accrual 84 a
00 Xxxxxxxxx Asset Disposition 85
19 Australia Unaccrued Diabetes Studies 18 a
20 Austria Loss from product failing testing in normal 70 71 a
course of production
21 Brazil Labor Relationship - 34 Sales Agencies 10.770 b
22 Brazil Foreign sales rep. in Uruguay 317 b
23 Brazil Labor-Required Compensation for Employees 1.647 b
Without a Collective Bargaining Agreement
24 Brazil Labor Relationship - 27 Outsourced IT Personnel 1.571 b
25 Brazil Underaccrued Inventory reserves 662
26 Brazil Labor Relationship - 23 claims by outsourced workers; 923 b
16 claims by former employees
27 Brazil Ministry of Justice against several companies for
abusive prices and falsification of materials 2.391 1.594 a
28 Brazil Receivable reserves 343 a
29 Brazil Labor - Failure to Account for Incentives for 285 b
Dangerous and Hazardous Jobs
30 Brazil Civil lawsuit hazardous pay 186 b
31 Brazil Pre-closing work accident 0
32 Canada Liquidated damages for default (failed to make
payments and market licensed product) by
Xxxxx Canada under contract with BML Pharma 649 b
33 Canada Inventory - Returns accepted by Xxxxx on Synthroid in 232 300 a
1Q01 not in ordinary course
34 Canada Unaccrued Long-term Disability Obligations 200 a
35 Colombia Librapharma claims damages and lost profits from 471 b
recall of products toll manufactured by Xxxxx;
fine for recall by Colombia's FDA agency
36 Colombia Potential fines for violation of advertising 365 46 a
statutes - 9 cases
00 Xxxxxxxx Xxxxxx Xxxxx - Xxxxxxxx Minority Interest 176 x
38 Colombia Unverified inventory in transit 81 87 a
39 Colombia Unsupported reconciliatory items on bank statement 86
40 France Tax Litigation with Innothera from which Boots 4.366 b
Pharma S.A. was purchased
41 France Tax losses due to a tax consolidation agreement 833
between LKF and GNR Pharma
42 France Retirement Indemnity Provision 0 0 c
43 France Possible criminal offense related to personnel 0
lending service agreement
44 Germany Novartis Agreement 6.391 b
45 Germany International Arbitration - Greek distributor 1.643 b
claim it was agent under German law and
entitled to termination and redundancy fees
46 Germany Patent claim for infringing Alfatec's 920 b
Nanosol German and EU patents
47 Germany-Egypt Unrecorded liability for free product 301 255 a
exported to Egypt
48 Germany Interco. Profit for Sibutramin 0
49 Germany Interco. Profit related to sale of intangible 0
assets (BASFIN and Boots)
50 Germany-Other Rep. Offices Cash Basis Reporting in Representative Offices 0
51 Hokuriku Underaccrued Inventory Reserves 208 225 a
52 Hokuriku Reconciliation of Xxxxxxxx xxxxxxxx 0
00 Xxxxx Ravizza Goodwill 14.397 a
54 Italy Excess/Slow Moving Reserve for Quomen 510 1.500 a
00 Xxxxx Xxxxxxxxxxxxxx xx xxxxxxxxxx xxxxxxx 000
00 Xxxxx Underaccrued inventory reserves 142
57 Italy Understatement of credit memo reserve 251 a
58 Italy Capitalization of Y2K and Euro Software 153 a
59 Italy Capitalization of Litio Carbonato 24 a
60 Mexico Adjustment to Labor Accruals 26 26 a
61 New Zealand Unaccrued Reductil post launch Monitoring Study 14 a
62 Pakistan Understatement of inventory reserve 16 29 a
63 Philippines Allowance for expired inventory 25
64 Poland Vacation, Bonuses, Mandatory Payments, and Travel 69 20 a
Costs - Underaccruals
65 Poland Unaccrued Drug Monitoring Trials 214 215 a
66 Spain Termination benefit was not accrued 465
67 Taiwan Unaccrued Free Goods 41
68 United Kingdom Unamortized leasehold improvements on 1.481 a
property where lease has expired
69 United Kingdom Restoration of leased property to same 630
conditon as start of lease term
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx 0.000 x
00 Xxxxxx Xxxxxx Rejected Inventory 2.663 2.653 a
72 United States Underaccrual of rebate reserve related 7.808 b
to Xxxxx
00 Xxxxxx Xxxxxx SAMe Distribution Rights 5.407 a
74 United States Vacation Accrual 1.917 1.917 a
75 United States Investment in GPC 3.921 a
00 Xxxxxx Xxxxxx Sales Force/Mktg - payments for sales 1.879 1.879 a
force and marketing expenses incurred prior to
March 2 but not accrued
77 United States Meridia Voucher Program Underaccrual - Distributed 3.244 a
vouchers for price discounts on purchases
78 United States Reduction in Payroll for Accrued Fringe 3.087
79 United States Promotion - payments for promotional activities 1.397 1.397 a
incurred prior to March 2, but not accrued
80 United States Underaccrual of Medicaid reserve 1.239 1.239 a
00 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxxxxxx 0.000
00 Xxxxxx Xxxxxx A/R uncorrectable 1.544 a
83 United States Excess inventories/commodities 1.478 a
84 United States Unrecorded A/P - Invoices not accrued at the plants 525 525 a
85 United States Boots General Integration Reserve 912
86 United States Reduction in Environmental Reserves 663
87 United States BHA Boots Product Liability Reserve 953
88 United States Manoplax Boots Product Liability Reserve 735
89 United States Accrued Expenses - Project Xxxxxx 316
------- -------- ---------
Sub total 489.788 23.282 146.927
------- -------- ---------
659.997
Xxxxx Pharmaceutical
Disputed Items Listing
Resolution as of June 21, 2001
--------------------------------------
Resolved Resolved
Issue # Country Resolved BASF Abbott
-------- -------------------- -------------------------------------------------- ---------- ---------- ------------
NEW ITEMS
1 Hokuriku Unaccrued Vacation 649 649 a
2 Italy Intangibles 1.360
Italy Fixed Assets 1.002 1.002 a
3 Brazil Failure to Treat Performance Bonuses as Salary 779 b
4 Australia Omitted Receivables Reserve 46
Germany Aventis payment 1.075 1.075 a
---------- ---------- ------------
Sub-total 4.132 3.505
---------- ---------- ------------
489.788 27.414 150.432
========== ========== ============
GRAND TOTAL
667.634
============
a Adjustment to NAV
b Indemnification/Reimbursement
c Include in pension true-up process. Abbott to notify Xxxxxx.
x Include in liquid fund settlement
GRAND TOTAL 150.432
INDEMNIFICATION/REIMBURSEMENT ITEMS
21,22,23,24,26,29,30,93 Brazil legal/labor matters 16.478
32 Canada/BML 000
00 Xxxxxxxx/Xxxxxxxxxxx 000
00 France/Boots 4.366
44 Germany/Novartis 6.391
45 Germany/Greek Distributor 1.643
46 Germany/Alfatec 920
72 United States/Medco 7.808
------------
SUBTOTAL - INDEMNIFICATION/REIMBURSEMENT ITEMS 38.726
------------
EXCHANGE ADJUSTMENT 46.500
COLOMBIA FUNDS 176
------------
Subtotal - NAV Adjustments, pretax 65.030
1 Deferred Taxes 4.401
9 India 2.259
------------
58.370
Average tax rate, as agreed 35%
Tax effect 20.430
------------
NAV Adjustments, net of tax 44.601
============
-------------------------------------------------------------------------------------------
SUMMARY
(THOUSAND EUROS)
Resolved Abbott 150.432
Indemnification/Reimbursement Items 38.726
Addition to Deferred taxes (NAV adjustment) 20.430
Colombia funds 176
---------
Net Asset Adjustment agreed by BASF
(Exhibit A-2/(D)) 91.101
-------------------------------------------------------------------------------------------
EXHIBIT A-2
NON-INDIAN PURCHASE PRICE ADJUSTMENT FOR THE BASF PHARMA BUSINESS(1)
(Euros;
Amounts in
millions)
------------
(A) Closing Net Asset Value as of March 2, 2001 (per Deloitte & Touche Report) 2.173,7
(B) Reference Net Asset Value as of September 30, 2000 (750,4)
-------------
(C) PURCHASE PRICE ADJUSTMENT PAYABLE BY ABBOTT TO BASF 1.423,3
(D) Net Asset Adjustments agreed by BASF AG per Exhibit A-1 (91,1)
(E) Additional Purchase Price 1.332,2
(F) Partial Adjustment Payment by Abbott to BASF AG (May 23, 2001) (1.064,3)
-------------
(G) Adjusted payment amount 267,9
(H) Settlement of amounts owing between Xxxxx GmbH and BASF AG
(1) Payment from Lupharma to Xxxxx GmbH 258,4
(2) Payment from Xxxxx GmbH to BASF AG (Profit Transfer) (170,8)
-------
(3) Due to Xxxxx GmbH 87,6
(I) Forgiveness of net debt owed by Seller to Purchaser (87,6)
-------------
(J) PURCHASE PRICE ADJUSTMENT TO BE PAID BY ABBOTT TO BASF AG 180,3
(K) Interest (6%) from March 2, 2001 to Payment Date
(L) Total amount to be paid by Abbott to BASF AG
------------------------
(1) Does not reflect the Pension Amount that Seller may owe to Purchaser in
accordance with the Section 21.4 of the Purchase Agreement.
Die wortliche Ubereinstimmung vorstehender Ablichtung mit der mir
vorliegenden Urschrift beglaubige ich hiermit.
Frankfurt am Main, den 26. Juli 2001
[XX. XXXXXXX XXXXXX SEAL] /s/ Xx. Xxxxxx
Xx. Xxxxxx
N o t a r
Beglaubigte Abschrift
POWER OF ATTORNEY
I, the undersigned
Xxxxxxx X. Xxxxxxxxxx
with business address at
Xxxxx, Day, Reavis & Xxxxx
Chicago, Illinois, USA
hereby grant a substitute power of attorney on behalf of
Xxxxxx Laboratories
Xxxxxx Park, Illinois, USA
-hereinafter referred to as the "Company".
Xxxxxx X. Xxxxx
Xxxx X. Xxxxx
and
Xxxxx Xxxxxx
each with business address at
Xxxxx, Xxx, Xxxxxx & Xxxxx
Xxxxxxxxx, Xxxxxxx
according to the power of attorney dated February 23, 2001 granted to me by
the Company (the "Original Power of Attorney"), a copy of which is attached
hereto, to individually represent the Company within the scope and
limitations provided for by the Original Power of Attorney.
Illinois, July 19, 2001
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx
SUBSCRIBED AND SWORN TO
before me this 19th day of July, 2001
--------------------------------
"OFFICIAL SEAL"
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx Notary Public, State of Illinois
------------------------------------- My Commission Expires 08/26/03
Notary Public --------------------------------
POWER OF ATTORNEY
We, the undersigned company
Xxxxxx Laboratories
Xxxxxx Park, Illinois, USA
hereinafter referred to as the "Company"
hereby xxxxx xxxxxx of attorney to
Xxxxx X. Xxxxx
with business address at
Xxxxxx Laboratories
Xxxxxx Park, Illinois, USA
Xxxxx X. Xxxxx
with business address at
Xxxxxx Laboratories
Xxxxxx Park, Illinois, USA
Xxxxxxx X. Xxxxxxxxx III
with business address at
Xxxxx, Day, Reavis & Xxxxx
Chicago, Illinois, USA
and
Xxxxxxx X. Xxxxxxxxxx
with business address at
Xxxxx, Day, Reavis & Xxxxx
Chicago, Illinois, USA
to individually represent the Company in connection with the transactions
contemplated by the purchase agreement dated as of December 14, 2000 (the
"Purchase Agreement") between BASF Aktiengesellschaft, a stock corporation
organized under the laws of the Federal Republic of Germany ("BASF") and the
Company, including, but not limited to, (i) any amendments to the Purchase
Agreement, (ii) the sale of all of the issued and outstanding shares of
capital stock of (a) Xxxxx XX, a stock corporation organized under the laws
of the Federal Republic of Germany, and (b) BASF Pharmaceutical Corporation,
a Delaware corporation; (iii) the sale to the Company and/or any of its
subsidiaries of all of shares of capital stock or other equity interests
directly or indirectly owned by BASF; (iv) the sale and transfer of certain
patents, trademarks, tradenames and other intellectual property, and to enter
into any kinds of agreements and commitments, including the right to grant
substitute and additional powers of attorney, as any of them deem necessary
and appropriate in connection therewith.
Our representatives shall be authorized to make all statements they deem
necessary or appropriate in this context. Furthermore, our representatives
shall be released from the restrictions set forth in Section 181 of the
German Civil Code.
XXXXXX LABORATORIES
Illinois, 23 day of February, 2001
by:
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx, Senior Vice President,
Finance and Chief Financial Officer
STATE OF ILLINOIS )
) ss.
COUNTY OF LAKE )
The undersigned, a Notary Public in and for the County and State
aforesaid, does hereby certify that Xxxx X. Xxxxxxxx, personally known to me
to be a duly appointed officer of Xxxxxx Laboratories, an Illinois
corporation, appeared before me this day in person and acknowledged under
oath that in such capacity he or she signed and delivered this certificate
pursuant to authority duly given to him by said corporation.
GIVEN under my hand and seal this 23 day of February, 2001.
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Notary Public
--------------------------------
OFFICIAL SEAL
XXXXXX XXXXXXX
Notary Public, State of Illinois
My Commission expires 10/4/03
--------------------------------
My Commission expires: 10/4/03
---------
Die wortliche Ubereinstimmung vorstehender Ablichtung mit der mir
vorliegenden Urschrift beglaubige ich hiermit.
Frankfurt am Main, den 26. Juli 2001
[XX. XXXXXXX XXXXXX SEAL] /s/ Xx. Xxxxxx
Xx. Xxxxxx
N o t a r
Die wortliche Ubereinstimmung vorstehender Ablichtung mit der mir
vorliegenden Urschrift beglaubige ich hiermit.
Frankfurt am Main, den 26. Juli 2001
/s/ Xx. Xxxxxx
Xx. Xxxxxx
N o t a r
