TENDER / PURCHASE AGREEMENT
Exhibit
7
between
Merck XXxX, Xxxxxxxxxxx Xxxxxx 000, 00000 Xxxxxxxxx
— hereinafter the “Seller” -
Dritte BV XxxX, Xxxxxx-Xxxxxxx-Xxxxx 0, 00000 Xxxxxxxxxx
— hereinafter the “Buyer” -
Xxxxx XX, 51368 Leverkusen
— hereinafter “Bayer” -
Preamble
| (1) | The Seller owns 41,529,770 shares (WKN 717200) (the “Shares”) in Schering AG with its registered seat in Berlin (the “Company”). | |
| (2) | The Seller intends to tender the Shares into the tender offer launched by the Buyer on April 13, 2006 (the “Offer”) and in case the Offer is not successful, to sell the Shares in the Company to the Buyer. | |
| (3) | The Buyer, Bayer and the Seller shall together be referred to as the “Parties” and each as a “Party”. |
Now, therefore, the Parties agree as follows:
§ 1 Tender Obligation
The Seller shall be obligated to tender the Shares into the Offer and submit a declaration of
acceptance pursuant to the procedures described in the Offer document until the end of the offer
period.
§ 2 Sale of Shares
If the conditions of the Offer will not have been satisfied at the expiration of the Offer and
therefore the Offer will not have been successful, the Seller hereby agrees to sell to the Buyer
the Shares (the “Outside Purchase”). The Buyer hereby accepts such purchase. The Shares shall be
sold together with all ancillary rights including the entitlement to dividends.
§ 3 Purchase Price
The purchase price payable to the Seller per Share for the Outside Purchase shall be EUR 89,00,
i.e. EUR 3,696,149,530 in the aggregate (the “Purchase Price”). For the avoidance of doubt, it is
the common understanding of the parties that the consideration under the Offer amounts at least to
EUR 89,00.
§ 4 Transfer of Shares
| (1) | In case of an Outside Purchase, the Seller and Buyer agree on the transfer of the Shares to the Buyer, subject to payment of the Purchase Price pursuant to § 3. The Seller shall irrevocably instruct its depositary bank to transfer the Shares by way of securities transfer (by the Clearstream/CASCADE system by RTS) into the securities account as stated below by not later than June 23, 2006, 5 p.m. German time against payment of the Purchase Price pursuant to § 3. | |
| Commerzbank Clearstream Account 7004 (for further credit of Dritte BV GmbH Leverkusen) Account no 0000000/00 |
||
| (2) | The Buyer shall pay the Purchase Price no later than June 23, 2006, 5 p.m. to the following bank account of the Seller: | |
| Sort code: BLZ 508 700 05 | ||
| SWIFT XXXXXXXX000 | ||
| IBAN XX00000000000000000000 | ||
| Deutsche Bank Darmstadt |
| Account no.: 210 161 00 | ||
| stating the payment purpose: Transfer of Schering Shares |
§ 5 Representation
The Seller represents that as of the day of the transfer of the Shares it is the sole owner of the
Shares and that such Shares are free of any third-party rights and claims and not subject to any
restraints on disposal.
§ 6 Release
The Buyer and Bayer, on their own behalf and on behalf of their agents, representatives, directors,
officers, affiliated entities (verbundene Unternehmen as defined in Section 15 of the German Stock
Corporation Act (Aktiengesetz)), successors and assigns (together the “Bayer Related Parties”), hereby irrevocably release and forever discharge Seller, along with its parents, owners,
stockholders, agents, representatives, directors, officers, affiliated entities (verbundene
Unternehmen as defined in Section 15 of the German Stock
Corporation Act (Aktiengesetz)),
successors and assigns (the “Seller Related Parties”), and the Seller Related Parties hereby
release the Bayer Related Parties, of and from any and all claims, counterclaims, demands, actions,
causes of action, damages, liabilities, losses, payments, obligations, costs and expenses
(including, without limitation, attorneys’ fees and costs) of any kind or nature, past, present, or
future, fixed or contingent, direct or indirect, in law or in equity, several or otherwise, known
or unknown, suspected or unsuspected, under the laws of any state, nation or territory, arising out
of or relating to the acquisition of shares in Schering Aktiengesellschaft by the Seller through
and including the date hereof and the disposition (for the avoidance
of debt: notwithstanding the disposition under this agreement) of, and any disclosures concerning such shares,
including but not limited to any claims that were or could have been asserted in the action
captioned Bayer Aktiengesellschaft and Dritte BV GmbH x. X. Xxxxx OHG, Merck KGaA and Merck
Vierte Allgemeine Beteiligungsgesellschaft mbH, Civil Action Xx. 00 XX 0000, xx xxx Xxxxxx
Xxxxxx District Court for the Southern District of New York. The Parties further agree that except
as required by law neither the Bayer Related Parties nor the Seller Related Parties will support or
encourage any other person to take any legal action under the laws of any state, nation or
territory, against any of the Seller Related Parties or, respectively, the Bayer Related Parties,
with respect to the subject matter of this Release. This Release shall be effective upon Seller’s
tender of the Shares referenced in Section 1 above or Seller's
Sale of the Shares referrenced in Section 2 above, as applicable. Each Party specifically waives the benefits of
California Civil Code Section 1542, which provides that a general release does not extent to claims
which the creditor does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement, or any similar
statutory or common law of any state, nation or territory of similar effect (without conceding that
any law but that chosen herein is applicable hereto). The Parties acknowledge that they
may hereafter
discover facts in addition to, or different from, those which they now believe to be
true with respect to the subject matter of the claims released herein,
but agree that they have taken
that possibility into account in reaching this Release, and
that the releases given herein shall be
and remain in effect notwithstanding the discovery or existence
of any such additional or different
facts as to which the Parties expressly assume the risk; provided,
however, that nothing in the
releases contained herein shall operate to bar any claim for breach of this Agreement.
§ 7 Applicable Law
This agreement is governed by the law of the Federal Republic of Germany.
§ 8 Severability/Miscellaneous
Should any provision of this agreement be or become invalid, voidable and/or impracticable in whole
or in part – for whatever reason – the validity and practicability of the remaining provisions of
this agreement shall not be affected thereby. The invalid, voidable and/or impracticable provision
shall be deemed to be replaced by such valid and practicable provision which comes closest to the
economic purpose pursued by the Parties with the invalid, voidable and/or impracticable provision.
Amendments to this Agreement shall only be made in writing. Each party shall bear the cost incurred
by it in connection with this Agreement.
Xxxxxxxxxx, Xxxx 00, 0000
|
Xxxxxxxxxx, June 14, 2006 | |
Dritte BV GmbH
|
Bayer XX | |
Xxxxxx-Xxxxxxx-Xxxxx 0
|
00000 Xxxxxxxxxx | |
00000 Xxxxxxxxxx |
||
Darmstadt, June 14, 2006 |
||
Merck XXxX |
||
Xxxxxxxxxxx Xxxxxx 000 |
||
00000 Xxxxxxxxx |
