<Page>
EXHIBIT 2.2
<Page>
ROLL NO. 7
[GRAPHIC]
DONE
AT FRANKFURT AM MAIN ON APRIL 27, 2001
Before me, the undersigned German lawyer David Wendt as officially appointed
representative of the notary public
DR. PETER GAMON
in the district of the Court of appeals (Oberlandesgericht) Frankfurt am Main
with the office in Frankfurt am Main
appeared today in the offices of Hengeler Mueller Weitzel Wirtz, Bockenheimer
Landstrasse 51, 60325 Frankfurt am Main:
1. Dr. Konrad Wartenberg, having his business seat at Taumusanlag 11,
Frankfurt, hereinafter not acting on his own behalf, but in the name and on
behalf of Messer Industriegesellschaft mbH, a German limited liability company
(GmbH), registered with the commercial register Konigstein, by virtue of a
written power of attorney dated 26 April, 2001, the original of which was
presented at notarisation, and a copy of which is attached to this deed, the
Deputy Notary certifying that said copy is a true and complete copy of the
original.
2. Dr. Klaus Peter Weber, having his business seat at Breite Strasse 69,
40213 Dusseldorf, hereinafter not acting on his own behalf, but in the name and
on behalf of Messer Griesheim GmbH, a German limited liability company (GmbH),
registered
<Page>
with the commercial register Frankfurt am Main under HRB 7812, by virtue of a
power of attorney dated 26 April, 2001, which was presented at notarisation,
and a copy of which is attached to this deed, the Deputy Notary certifying
that said copy is a true and complete copy of the original.
3. Dr. Christof Jackle, having his business seat at Bockenheimer Ldstr 51,
Frankfurt, hereinafter not acting on his own behalf, but in the name and on
behalf of CORNELIA Verwaltungsgesellschaft mbH, a German limited liability
company (GmbH), registered with the commercial register Frankfurt am Main
under HRB 50040, by virtue of a power of attorney dated 24 April, 2001, the
original of which was presented at notarisation, a copy of which is attached to
this deed, the Deputy Notary herewith certifying that said copy is a true and
complete copy of the original.
4. Dr. Alfred Kossmann, having his business seat at Breite Str-69, 40213,
Dusseldorf hereinafter not acting on his own behalf, but in the name and on
behalf of Hoechst Aktiengesellschaft, a German stock corporation (AG),
registered with the commercial register Frankfurt am Main under HRB 14500, by
virtue of a written power of attorney dated December 18, 2000, the original
of which has been submitted to the deputy notary upon notarisation of the
deed G680/2000, 30/31st December, 2000.
5. Dr. Andrea Eggenstein, having her business seat at Breite Strasse 69,
40213 Dusseldorf, hereinafter not acting on her own behalf, but in the name
and on behalf of DIOGENES Zwanzigste Vermogensverwaltungs GmbH, a German
limited liability company (GmbH), registered with the commercial register
Frankfurt am Main under HRB 48032, by virtue of a written power of attorney
dated December 20, 2000, the original of which has been submitted to the
deputy notary upon notarisation of the deed G680/2000, 30/31st December, 2000.
The Appeared identified themselves to the Notary by virtue of their official
passports and identity cards.
The Appeared asked the notarization to be done partially in English. The
Notary who is fluent in the English language ascertained that the Appeared
have sufficient command of the English language. After having been instructed
by the Deputy Notary, the Appeared waived the right to obtain the assistance
of a sworn interpreter and to obtain a certified translation hereof.
The Deputy Notary advised the Appeared about the provision of Section 3
para. 1 no. 7 Act on Recording Official Documents (Beurkundungsgesetz). The
Appeared denied the applicability of this provision.
Thereupon, the Appeared requested the notarization of the following:
<Page>
================================================================================
AMENDMENT OF THE
BUSINESS COMBINATION AGREEMENT
AS OF 30/31 DECEMBER 2000
dated as of 27 April, 2001
among
MESSER INDUSTRIEGESELLSCHAFT MBH,
MESSER GRIESHEIM GMBH,
CORNELIA VERWALTUNGSGESELLSCHAFT MBH,
HOECHST AKTIENGESELLSCHAFT
and
DIOGENES ZWANZIGSTE
VERMOGENSVERWALTUNGS GMBH
================================================================================
[GRAPHIC]
<Page>
ii
<Table>
<Caption>
TABLE OF CONTENTS
1. Certain Definitions .................................................................... 1
2. Modification to Messer BCA ............................................................. 3
2.1 Change of Definition of Total Compensation ...................................... 3
2.2 Replacement of Section 2.5(f) .................................................... 3
2.3 Replacement of Section 2.7 ...................................................... 4
2.4 Supplement of Section 3.(1) ..................................................... 7
2.5 Deletion of Section 4.16(e) ..................................................... 9
2.6 Deletion of Section 4.18 ........................................................ 9
2.7 Amendment of Section 4.20 ....................................................... 9
2.8 New Section 4.22 ................................................................ 10
2.9 New Section 4.23 ................................................................ 18
2.10 New Sections 4.24 - 4.26 ........................................................ 26
2.11 Amendment of Section 5.17 ....................................................... 29
2.12 New Section 12.1 ................................................................ 29
3. Additional Disclosures; Updated Messer Group Chart ..................................... 31
3.1 Additional Disclosures .......................................................... 31
3.2 Updated Messer Group Chart ...................................................... 32
4. Financing of Singapore Operations; Disproportionate Guarantees ......................... 32
4.1 Texaco Transaction Agreement .................................................... 32
4.2 SSPL Bank Debt .................................................................. 32
4.3 Implementation of Singapore SPV ................................................. 33
4.4 Hoechst Closing Amount .......................................................... 33
4.5 Celanese Settlement ............................................................. 33
4.6 Disproportionate Guarantees ..................................................... 34
4.7 Hoechst Closing Balance ......................................................... 34
<Page>
iii
5. Antitrust Filings ...................................................................... 35
6. Miscellaneous .......................................................................... 35
</Table>
<Table>
<Caption>
LIST OF EXHIBITS*
Exhibit I Letter of Dr. Schmieder
Exhibit L Investor NewCo Letter
Exhibit M Exhibit C of the Messer BCA
Exhibit Q Questionnaire
Exhibit R Undesired Business Activities
Exhibit 2.7(d) Definition of Change-of-Control
Exhibit 3.1(q) the Mahler/Italfilo Holding GmbH Formation and Shareholders'
Agreement
Exhibit 3.1(r) the Cuban Transfer Agreement
Exhibit 3.1(s)(a) Pre-Closing Measures
Exhibit 3.1(s)(b) Section 3.1(s) Certificate
Exhibit 3.1(u) Section 3.1(u) Certificate
Exhibit 3.1(v) Section 3.1(v) Certificate
Exhibit 4.7 Hoechst Closing Balance
Exhibit 5.17 Liabilities of the Messer Group Companies
Exhibit 12.1(a) MGG-Articles 2000
Exhibit 12.1(b) Agreement in Principle
</Table>
* The following exhibits have been omitted from this filing, but will be
provided to the SEC upon its request.
<Page>
iv
<Table>
<Caption>
LIST OF DEFINED TERMS
Amendment Agreement ........................ 1
Basket ..................................... 28
Bombay Oxygen Payment ...................... 34
Business Relationship ...................... 27
Celanese ................................... 33
Celanese Balance ........................... 33
Celanese Portion ........................... 33
Celanese Settlement Agreement .............. 33
Change of Control .......................... 7
Compliance Failure I ....................... 17
Compliance Failure II ...................... 25
Controlled Messer Company .................. 1
Convertible Bond Agreement ................. 5
Covered Claim I ............................ 12
Covered Claim II ........................... 20
Cuban Transfer Agreement ................... 7
Deferred Purchase Price .................... 4
Direct Hoechst Claim I ..................... 13
Direct Hoechst Claim II .................... 22
Export Control Indemnification ............. 19
Hoechst Closing Balance .................... 34
Hoechst NewCo II Receivable Purchase
Price .................................. 5
Hoechst NewCo II Share Purchase
Agreement I ........................... 4
Instruction Letters ........................ 1
Investigation .............................. 10
Main MGG Purchase Price .................... 4
Messer BCA ................................. 1
MGG-Articles 2000 .......................... 30
MGG-Articles 2001 .......................... 30
Permitted Assignee ......................... 7
Questionnaire Update ....................... 8
Related Proceeding ......................... 10
Section 3.1(s) Certificate ................. 8
Section 3.1(u) Certificate ................. 8
Section 3.1(v) Certificate ................. 9
Special Investigation Indemnification ...... 10
Special Payment Activities ................. 2
Spin-Off Companies ......................... 2
SSPL ....................................... 33
Texaco ..................................... 32
Texaco Balance ............................. 32
Texaco Portion ............................. 32
Texaco Transaction Agreement ............... 32
Total Compensation ......................... 3
Undesired Business Activities .............. 3
</Table>
<Page>
WITNESSETH
WHEREAS, the parties have entered into the Messer BCA;
WHEREAS, the parties wish to modify the Messer BCA;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. CERTAIN DEFINITIONS
Unless otherwise defined herein, defined terms used herein shall have the same
meaning as used in the Messer BCA. In addition the following terms shall have
the following meanings:
"AMENDMENT AGREEMENT" means this amendment to the Messer BCA.
"CONTROLLED MESSER COMPANY" means MGG and, at the relevant time, any Messer
Group Company either (a) in which MGG directly or indirectly has the majority of
the voting rights or (b) the business and affairs of which are otherwise
directly or indirectly controlled by MGG.
"INSTRUCTION LETTERS" means the letter from Dr. Klaus Schmieder to each of the
Messer Group Companies (other than the Spin-Off Companies), in the form attached
hereto as EXHIBIT I, together with the letter from Investor NewCo to MGG dated
April 26, 2001 relating to such letter and attached hereto as EXHIBIT L.
"MESSER BCA" means the Business Combination Agreement dated December 30/31, 2000
(notarial deed No. G 680/2000 of the notary public Dr. Peter Gamon in
Frankfurt), as amended by agreement dated February 7, 2001 (notarial deed No.
G 66/2001 of the notary public Dr. Peter Gamon in Frankfurt, represented by Mr.
David Wende), by agreement dated February 9, 2001 (notarial deed No. G 77/2001
of the notary public Dr. Peter Gamon in Frankfurt, represented by Mr. David
Wende), by agreement dated March 5, 2001 (notarial deed No. G 99/2001 of the
notary public Dr. Peter Gamon in Frankfurt, by agreement dated March 20, 2001
(notarial deed No. G 142/2001 of the notary public Dr. Peter Gamon in
Frankfurt), and by agreement dated March 30, 2001 (notarial deed No. G 192/2001
of the notary public Dr. Peter Gamon in Frankfurt).
"MGG COMPLIANCE PROGRAM" means the compliance program currently being developed
by MGG with the assistance of the law firm O'Melveny & Myers and adopted by the
Board of Management of MGG on April 24, 2001.
<Page>
2
"QUESTIONNAIRES" means the questionnaires relating to certain business
activities, in the form attached as EXHIBIT Q, circulated to each Messer Group
Company on or around March 2, 2001.
"SPECIAL PAYMENT ACTIVITIES" means the payment, offer, promise or agreement to
pay, or the authorization of or having caused the payment, offer, promise or
agreement to be paid, directly or indirectly, any undue pecuniary or other
advantage (including any bribe, pay-off, kick-back, commission or other payment,
and including also any purchase of goods, assets or services for consideration
materially in excess of the fair market value thereof or otherwise not on an
arms-length basis) by or on behalf of any Messer Group Company to (A) any
official, employee or representative of any Governmental Entity or any company
or entity owned or controlled by any Governmental Entity, or any political
party, or candidate or nominee for political office or any other position with
any Governmental Entity (or to any other person or entity with the knowledge or
expectation that all or any portion thereof will be offered, paid or delivered
to, or is otherwise for the benefit of, any such official, employee,
representative, political party, party official, nominee or candidate), all if
prohibited or otherwise subject to criminal or civil sanction under Applicable
Law or (B) any other person, including employees or representatives of private
companies, if payments or other undue advantages offered or paid to such other
person is prohibited or otherwise subject to criminal or civil sanction under
Applicable Law, for the purpose of (in the case of (A) or (B)), directly or
indirectly (x) influencing any act or decision of any Governmental Entity, or
any such official, employee, representative, political party, party official,
nominee or candidate in his or its official capacity, including a decision to
fail to perform his or its official functions, (y) inducing such official,
employee, representative, political party, party official, nominee or candidate
to use his or its influence with any Governmental Entity to affect or influence
any act or decision of such Governmental Entity, in order to obtain or retain
business or direct business to any third party, or in order to secure any
improper business advantage, or (z) achieving any other benefit prohibited or
otherwise subject to criminal or civil sanction under Applicable Law;
"SPIN-OFF COMPANIES" means Mahler AGS GmbH, Italfilo Engineering Srl., Oxiacero
S.A, Oxicuba S.A, Oxisold S.A. and Greenbelt Holding, Ltd.;
"UNDESIRED BUSINESS ACTIVITIES" means any of the activities described in
EXHIBIT R.
2. MODIFICATION TO MESSER BCA
2.1 CHANGE OF DEFINITION OF TOTAL COMPENSATION. The definition of the
term "Total Compensation" contained in Section I of the Messer BCA
shall
<Page>
3
be replaced as follows:
"TOTAL COMPENSATION" means the Main MGG Purchase Price plus the
Hoechst NewCo II Receivable Purchase Price plus the China Purchase
price; PROVIDED that if the China SPA will not be consummated or not
be consummated in its entirety, the Total Compensation shall not
include the China Purchase Price or a respective pro rata portion
thereof. For the purpose of clarity only, the specific elements of
Total Compensation consist of
(i) a cash payment at Closing (Section 2.7(a)(i)) in an amount of
EUR 188,000,000
(ii) the Deferred Purchase Price (Section 2.7(a)(ii)) in an amount
of EUR 230,000,000
((i) and (ii) being the Main MGG Purchase Price in the amount
of EUR 418,000,000)
(iii) the Hoechst NewCo II Receivable Purchase Price (Section
2.7(b)) in an amount of EUR 200,000,000
(iv) the China Purchase Price (Section 2.5) in an amount of EUR
32,000,000 or pro rata, as the case may be.
Accordingly, the Total Compensation amounts to EUR 650,000,000.
For the avoidance of doubt: Hoechst NewCo III shall receive in
addition to the foregoing a duly executed Convertible Bond
Agreement."
2.2 REPLACEMENT OF SECTION 2.5(f). Section 2.5(f) shall be replaced in
its entirety and read as follows:
"(f) With respect to the allocation and charging of any fees for
Management Services (as defined in the China SPA) Hoechst
shall procure that in the period from the date of this
Agreement until execution of the China SPA, ACIC will allocate
and charge such fees only in accordance with past practice and
with the principles and subject to the provisions set forth in
the China SPA."
2.3 REPLACEMENT OF SECTION 2.7. Except for its heading, Section 2.7
shall be replaced in its entirety and read as follows:
<Page>
4
"(a) At the Closing Date after execution of the Share Loan
Agreement, Hoechst NewCo III shall sell and transfer to
Investor NewCo the Hoechst NewCo II Shares, and Investor NewCo
shall purchase and accept such transfer of the Hoechst NewCo
II Shares by executing a purchase and assignment agreement in
form and substance as attached as EXHIBIT 2.7(a)(1) (the
"HOECHST NEWCO II SHARE PURCHASE AGREEMENT I"). The purchase
price owed by Investor NewCo as consideration for the sale and
transfer of the Hoechst NewCo II Shares consists of a cash
portion and the execution and delivery of a convertible bond
agreement. The cash portion amounts to
EUR 418,000,000
(the "MAIN MGG PURCHASE PRICE");
of which
(i) EUR 188,000,000 are payable at the Closing Date;
(ii) EUR 230,000,000 plus interest for the time between the
Closing Date and actual payment as provided for in
Section 2.7(d) (the "DEFERRED PURCHASE PRICE") are
payable as set forth in Section 2.7(d).
It is acknowledged by the parties that the amount for the Main
MGG Purchase Price takes into account the amount of the
purchase price for the Hoechst NewCo II Contribution
Receivable.
In addition to the Main MGG Purchase Price, Investor NewCo,
ACP, the GS Funds and MIG shall duly execute and notarize
together with Hoechst NewCo III at or before the Closing Date
a convertible bond agreement (the "CONVERTIBLE BOND
AGREEMENT") and such agreement shall also deemed to be a
Combination Document.
(b) At the Closing Date Hoechst shall sell and transfer to
Investor NewCo the Hoechst NewCo II Contribution Receivable
for a purchase price equal to its face value (i.e., EUR
200,000,000, the "HOECHST NEWCO II RECEIVABLE PURCHASE PRICE")
pursuant to an assignment contract substantially as set forth
in EXHIBIT 2.7(b).
(c) The transfer of the Hoechst NewCo II Shares from Hoechst NewCo
III to Investor NewCo shall be subject to the condition
precedent of (i) the receipt of the Main MGG Purchase Price by
<Page>
5
Hoechst NewCo III to the extent due and payable at the Closing
Date, (ii) the due notarization of the Convertible Bond
Agreement and (iii) the receipt of the Hoechst NewCo II
Receivable Purchase Price by Hoechst.
(d) The Deferred Purchase Price in the amount of EUR 230,000,000
is due and payable on November 1, 2011, including interest
thereon at a rate of 250 basis points above three months
EURIBOR (or any successor or comparable basis), compounded
annually and to be calculated on the basis of 360 days, which
interest shall be paid together with the payment of the
principal amount. However, the Deferred Purchase Price shall
become immediately due and payable upon (A) the occurrence of
a Change of Control, (B) a sale of all or substantially all
assets of Investor NewCo, (C) any Insolvency of Investor NewCo
or (D) a liquidation of Investor NewCo.
Investor NewCo hereby covenants that until the date the
Deferred Purchase Price plus interest shall have been paid in
full:
(i) Investor NewCo shall not grant any loans except to its
Subsidiaries or to the members of the management of
such Subsidiaries or as contemplated by the Singapore
Separation Agreement; PROVIDED that in connection with a
contribution of MIG's newly created interest in Hoechst
NewCo II to Investor NewCo, Investor NewCo may pay as
consideration to MIG one or more cash amounts promptly
or at a later date (including any loans created in
connection therewith and including any repayments of
such loans) as reflected in EXHIBIT 4.12(h); and
(ii) Investor NewCo shall not, without the prior written
consent of Hoechst which shall not be unreasonably
withheld, permit any split of itself or any capital
increase of MGG or any other restructuring measure of
the MGG Group (other than any sale or transfer of assets
for consideration on an arm's length basis), in each
case which would cause any shareholder of Investor NewCo
(other than MIG or a management shareholder) to directly
or indirectly own any equity interest in the MGG Group
other than through a shareholding in Investor NewCo.
<Page>
6
In case of any violation of the undertakings of Investor NewCo
under (i) or (ii) above and if such violation has not been
cured within a period of three months after a respective
notification by Hoechst, the Deferred Purchase Price shall
become immediately payable in full. Investor NewCo shall be
entitled to prepay the Deferred Purchase Price at any time
without any penalty.
Hoechst NewCo III or any Permitted Assignee shall be entitled
to assign its rights to receive payment of the Deferred
Purchase Price (i) at any time, in whole but not in part, to
Dresdner Bank or any wholly owned Affiliate of Dresdner Bank
which is a German taxpayer (any person, entity, trustee or
partnership which is subject to taxation on its income,
profits or gains in Germany), (ii) at any time, in whole but
not in part, to Hoechst or any wholly owned Affiliate of
Hoechst which is a German taxpayer, (iii) at any time after
the first anniversary of the Closing Date, in whole or in part
(but not in nominal amounts of less than EUR 47,000,000), to a
financial institution rated single A or better (Standard &
Poor's) and which is a German taxpayer and (iv) at any time,
in whole or in part, to Allianz Capital Partners GmbH or any
GS Funds or any assignees of the foregoing, as contemplated by
agreements to be notarised by ACP, the GS Funds, Hoechst and
Hoechst NewCo III prior to the closing date, (the persons
referred to under (i) through (iv) each being a "PERMITTED
ASSIGNEE"). Except for any assignments of the Deferred
Purchase Price to Dresdner Bank or an Affiliate of Dresdner
Bank and to Hoechst as a result of the Forward Sale Agreement
I and II, Hoechst shall consult with Investor NewCo in
connection with any marketing of any portion of the Deferred
Purchase Price to a Permitted Assignee and shall, in case of
any assignment to any Permitted Assignee, inform Investor
NewCo of such an assignment and oblige such Permitted Assignee
to consult and inform Investor NewCo about any further
assignments by such Permitted Assignees and to pass on such
obligation to consult and inform to Permitted Assignees in
case of further assignments.
For purposes of this Section 2.7(d), "CHANGE OF CONTROL" has
the meaning as set forth in EXHIBIT 2.7(d) attached to this
Amendment Agreement."
<Page>
(e) For as long as the Deferred Purchase Price has not been paid
in full by Investor NewCo or the convertible bond under the
Convertible Bond Agreement is still outstanding, Investor
NewCo shall furnish to Hoechst the year end financial
statements of Investor NewCo and the consolidated audited year
end financial statements of the Messer Group as soon as such
financial statements are finalised.
<Page>
7
2.4 SUPPLEMENT OF SECTION 3.(1) Section 3.1.(p) is hereby deleted.
Furthermore Section 3.1 will be supplemented by insertion of (i) new
paras (q), (r), (s), (t), (u), (v) and (w) and (ii) by additional
modifications as follows:
"(q) The parties have executed the Mahler/Italfilo Holding GmbH
Formation and Shareholders' Agreement as set forth in EXHIBIT
3.1(q) and attached for evidence purposes only.
(r) MGG and Fiordigili GmbH have executed on April 12, 2000 an
agreement, as set forth in EXHIBIT 3.1(r) and attached for
evidence purposes only (the "CUBAN TRANSFER AGREEMENT"); the
transactions provided for in the Cuban Transfer Agreement
shall have been completed (including the receipt by MGG of a
promissory note to be issued to MGG pursuant to the Cuban
Transfer Agreement), such that neither MGG nor any other
Messer Group Company shall have any further direct or indirect
interest in or business relationship of any kind with any of
Oxiacero S.A, Oxicuba S.A and Oxisold S.A., other than as
contemplated by the Cuban Transfer Agreement.
(s) Each of the transactions, arrangements and actions described
in EXHIBIT 3.1(s)(a) to be effected or taken prior to the
Closing shall have been so effected or taken to the
reasonable satisfaction of Investor NewCo and the Chief
Executive Officer of MGG shall have delivered to Investor
NewCo a certificate substantially in the form attached
hereto as EXHIBIT 3.1(s)(b) (the "SECTION 3.1(s)
CERTIFICATE"). If Investor NewCo receives any Questionnaire
Update prior to the Closing Date after execution of this
Amendment Agreement, it shall be entitled to amend and
supplement EXHIBIT 3.1(s)(a) and the Section 3.1(s)
Certificate in its reasonable discretion within four (4)
Business Days to the extent reasonably necessary or
appropriate to address any matters disclosed in the
Questionnaire Update.
(t) Investor NewCo shall not have reasonably determined that
any of the responses to the Questionnaires submitted by the
Messer Group Companies together with the materials and
information supplied or required to be supplied in response
thereto, were not true, correct and complete as of the date
such Questionnaires or materials and information were
completed and submitted or, if
<Page>
8
updated by written notice of Hoechst (the "QUESTIONNAIRE
UPDATE") prior to the Closing Date, as of the date of such
update.
(u) Investor NewCo shall not have reasonably determined that
the requirements and directives set forth in the
Instruction Letters have not been complied with in all
respects by the relevant Controlled Messer Companies, and
the Chief Executive Officer of MGG shall have delivered to
Investor NewCo a certificate, substantially in the form
attached hereto as EXHIBIT 3.1(u), confirming such
compliance (the "SECTION 3.1(u) CERTIFICATE").
(v) Investor NewCo shall not have reasonably determined that,
as of the Closing Date, any Messer Group Company has any
business interest in or relating to or any contract or
understanding to purchase or sell any goods or services
from or to any person or entity in, Cuba (other than as
referred to in para. (r) above), Afghanistan, Iran, Iraq,
Pakistan, Libya, Sudan, Angola, Myanmar or North Korea, or
any person located in (whether temporarily or permanently),
or item of property or entity based in, any of such
countries, and the Chief Executive Officer of MGG shall
have delivered to Investor NewCo a certificate confirming
that the same is true and correct (i) with respect to the
Controlled Messer Companies based on (A) the Controlled
Messer Companies' records, and (B) the respective actual
best knowledge of any of the persons referred to in Section
6.12 (other than Mr. Waesche) or of Mr. Kehler and Mr.
Dimmers; whereby the best knowledge of Mr. Schmieder and
Mr. Kehler is after due inquiry, and (ii) with respect to
the Messer Group Companies other than the Controlled Messer
Companies on the basis of MGG's Chief Executive Officer's
respective actual best knowledge without any obligation of
further due inquiry, all substantially in the form attached
hereto as EXHIBIT 3.1(v) (the "SECTION 3.1(v) CERTIFICATE").
(w) The MGG Compliance Program shall have been duly resolved by
MGG's shareholders' committee and the preliminary
communication thereof to the relevant personnel of the
Messer Group Companies shall have been completed.
It is agreed that with regard to Section 4.1 Hoechst shall not be
obligated to make any efforts with respect to the fulfillment of
the closing conditions set forth in para. (r), (s), (t), (u), (v)
and (w), other than the taking
<Page>
9
of such actions in its capacity as the principal shareholder of
MGG as are reasonably requested by Investor NewCo to cause or
permit such conditions to be capable of being satisfied."
2.5 DELETION OF SECTION 4.16(e). Section 4.16(e) is hereby deleted in
its entirety and to be left blank.
2.6 DELETION OF SECTION 4.18. Section 4.18 is hereby deleted in its
entirety and to be left blank.
2.7 AMENDMENT OF SECTION 4.20. Section 4.20 shall be amended to read as
follows:
"4.20 CONTRIBUTIONS BY INVESTOR NEWCO. To the extent Investor NewCo
receives payment amounts from Hoechst NewCo III or Hoechst
under this Agreement (including without limitation pursuant
to Sections 4, 6, 8 or 9), but excluding payment amounts
received pursuant to Section 4.14 (non-fulfillment of
Counter-Call), Investor NewCo hereby undertakes to MGG and
Hoechst that it shall forward any such payment amounts to
MGG at Investor NewCo's choice as contributions (without
consideration) to the capital or capital reserves of MGG or
grant such payment to MGG as a subordinated shareholder
loan (RANGRUCKTRITT GEGENUBER ALLEN ANDEREN GLAUBIGERN), in
each case through Hoechst NewCo II. Such obligation shall
expire on February 28, 2002 vis-a-vis Hoechst."
2.8 NEW SECTION 4.22. Section 4 will be supplemented by a new Section
4.22 as follows:
"4.22 SPECIAL INVESTIGATION. Hoechst agrees to indemnify Investor
NewCo, subject to the Pro-Rata Principle, from any and all
Losses directly or indirectly suffered by Investor NewCo or
any Messer Group Company directly or indirectly arising out
of or relating to (i) the investigation described in
EXHIBIT D of the Messer BCA (the "INVESTIGATION"), (ii) any
proceeding arising out of or resulting from the
Investigation (a "RELATED PROCEEDING"), or (iii) any
matter, claim or proceeding arising out of or resulting
from the matters which are or which become the subject of
the Investigation or of any such Related Proceeding (all to
the extent
<Page>
10
related to activities prior to the Closing Date) (collectively
the "SPECIAL INVESTIGATION INDEMNIFICATION").
For purposes of the foregoing indemnity, Losses shall (A)
exclude (i) loss of profits and other consequential
damages, other than loss of profits that are the direct,
proximate result of the investigation, proceeding, matter
or claim giving rise to such indemnification (e.g., a
requirement to terminate or discontinue a contract or a
business relationship); PROVIDED that in case of a
termination of a business relationship the amount of
Losses shall be determined on the basis of a reasonable
forecast whereby the maximum Loss shall consist of lost
profits for a one-(1)-year period after the termination
of such business relationship, and (ii) reasonable
attorneys' fees to the extent that the level of such fees,
taken on a monthly average, exceed the level of the
average monthly attorneys fees incurred by MGG in
connection with the Investigation during the
four-month-period prior to the date of the execution of
this Agreement, but in any event shall (B) include (i)
penalty payments or payments of similar character
(including amounts paid pursuant to any settlement) to
Governmental Entities, (ii) damage payments to third
parties or payments made in settlement of claims asserted
by third parties, and (iii) payments for indemnification
or reimbursement to or on behalf of any then current or
former officer or director of any Messer Group Companies
to the extent there is a legally binding obligation
providing for such reimbursement or indemnification
pursuant to legal instruments or provisions of law
existing as of the Closing Date. Any Losses to be
compensated by Hoechst hereunder shall be determined in
particular after taking into account the provisions of
para. (d) below. For the avoidance of doubt: Losses under
this Section 4.22 do not include any loss of reputation
or goodwill of the party who directly or indirectly
suffers such loss.
Without limiting the rights and obligations of Investor
NewCo with respect to the management and supervision of
the MGG Group, the amount of indemnification which
Investor NewCo is entitled to receive pursuant to the
Special Investigation Indemnification shall be subject to
a limitation or reduction (including to zero) if and to
the extent the failure by Investor NewCo to com-
<Page>
11
ply with any of the provisions of this Section 4.22,
results in a Loss for which Hoechst would otherwise be
obligated to indemnify Investor NewCo being greater in
any material respect than it would have been absent such
failure (all to be determined by the arbitral tribunal in
the manner as set out in para. (e) below). With respect
to violations by Investor NewCo of its obligations under
paragraphs (a) - (c) below the Special Investigation
Indemnification shall only be subject to any such
limitation or reduction in respect of such violations
that are intentional and are not immaterial. In no event
shall Investor NewCo have any liability to Hoechst in
respect of any violation of the provisions of this
Section 4.22, it being understood that, except as
provided in the last paragraph of paragraph (b) below
with respect to the availability of specific performance,
the only remedy available to Hoechst in respect of any
such violation shall be a limitation or reduction of the
rights of Investor NewCo to receive indemnification
pursuant to the Special Investigation Indemnification, as
aforesaid. It is understood and agreed that the foregoing
shall not be deemed to limit the rights and obligations
of either Investor NewCo or Hoechst not specifically
addressed herein and which may apply as a matter of
general concepts of German law, provided that in the
event of any conflict between such rights and obligation,
on the one hand, and the specific rights and obligations
and other arrangements contemplated by this Section 4.22,
on the other hand, the provisions of this Section 4.22
shall control.
(a) In the event that Investor NewCo or any Messer Group
Company, or any officer, director, partner, employee or
agent of any of the foregoing, becomes or is threatened
to become subject to any claim, action or proceeding
(regardless of whether asserted or initiated by any
Governmental Entity or any private entity or person) for
which Investor NewCo may seek indemnification pursuant to
this Section 4.22 (a "COVERED CLAIM I"), Investor NewCo
shall inform Hoechst of such Covered Claim I promptly
following Investor NewCo becoming aware of such Covered
Claim I.
(b) Investor NewCo shall, on a weekly basis (except in
periods of unusual activity during which consultations
shall be held more frequently as and to the extent
Investor NewCo reasonably deems
<Page>
12
to be appropriate and practicable), consult with Hoechst
regarding the manner in which any Covered Claim I is to
be handled and resolved (including as to any material
development relating to such Covered Claim I and as to
Investor NewCo's view of the outcome of the Investigation
or any Related Proceeding and any material changes
thereto). Hoechst shall (at its own expense) be entitled
to participate (including by being present through one or
two representatives), unless reasonably impracticable
under the factual circumstances, with respect to any
Covered Claim I in: (i) any gathering of information
(including interviews of any witnesses whether or not
affiliated with the Messer Group), (ii) any communication
to or with or meetings with current or prospective
adversaries (i.e. prosecutors and third party claimants)
and current or prospective witnesses (in his or her
capacity as such) and (iii) any negotiation and
preparation of any defense or settlement thereof
(including by receiving relevant information, and
consulting with Investor NewCo, and its advisors).
It is understood that such participation by Hoechst shall
be comprised of: receiving relevant information and/or
consulting with Investor NewCo and its advisors and, in
conjunction with and not independently of Investor NewCo
and/or its advisors, attending meetings held with current
or prospective adversaries or witnesses (it being
understood, however, that such right to attend will be
limited to a right to observe, without a right to speak
at, any such meetings). It is understood that the
foregoing participation and consultation rights of
Hoechst shall not include the right to attend meetings
held solely between Investor NewCo or any of its
Affiliates and its or their counsel (although Investor
NewCo may invite Hoechst to attend such meetings);
PROVIDED, however, that if and to the extent that
Investor NewCo or any Messer Group Company and its or
their counsel are making or have made material decisions
concerning the defense or settlement of any Covered Claim
I, Investor NewCo shall, and shall direct such counsel
to, unless reasonably impractical under the factual
circumstances, consult with Hoechst and consider the
views of Hoechst relating to the subject matter of such
decision before acting upon such decision or otherwise
taking any step which renders such decision irrevocable.
In all events and notwith-
<Page>
13
standing any rights of Hoechst provided for herein,
Investor NewCo and/or the applicable Messer Group Company
shall, as between such entity and Hoechst, have the sole
right to control and direct the defense of such Covered
Claim I and any gathering, use or disclosure of
information to parties other than Hoechst and any related
communication, defense, settlement or resolution thereof.
For the avoidance of doubt: A Covered Claim I does not
include any claim or proceeding directly brought against
Hoechst or any of its Affiliates (other than the Messer
Group Companies) (a "DIRECT HOECHST CLAIM I") regardless
of whether related to any claim or proceeding
constituting a Covered Claim I (it being understood if
any Direct Hoechst Claim I relates to a Covered Claim I,
Hoechst will reasonably consult and cooperate with
Investor NewCo with respect thereto). Accordingly,
nothing contained herein shall be understood to limit any
rights of Hoechst or its respective Affiliate to control
and defend any Direct Hoechst Claim I, nor shall the
existence of any Direct Hoechst Claim I limit or alter
any rights of Investor NewCo hereunder.
The parties shall use their best efforts to ensure that
all information received or transferred by or to Hoechst
or its advisors related to any matter relevant to this
Section 4.22 shall be protected by the joint defense
privilege, if applicable; PROVIDED that in no event shall
the foregoing be deemed to limit any right of Investor
NewCo to waive any privilege, subject always to para (d)
below.
Any particular right of Hoechst under this para. (b) may
be limited by Investor NewCo, if, and then only to the
extent that, (i) Investor NewCo is advised by outside
counsel that due to factors arising or first becoming
known after the Closing Date the exercise of such right
by Hoechst poses a material risk of a waiver of
attorney-client privilege by Investor NewCo or any Messer
Group Company (after taking into account any joint
defense privilege), PROVIDED that Hoechst may, in its
reasonable discretion, require that such advice be
reviewed by an independent expert on matters concerning
privilege to be selected by Hoechst and reasonably
acceptable to Investor NewCo (e.g., a professor
specializing in the field of evidence at a prominent law
school in the United States) and to the extent that such
expert concludes
<Page>
14
that the exercise of such right by Hoechst will not pose
a material risk of such a waiver of attorney-client
privilege, Investor NewCo shall promptly remove such
limitation on such participation right of Hoechst and
shall make available to Hoechst any information or access
previously not made available to Hoechst on the basis of
such advice (in this regard Hoechst, MGG and Investor
NewCo confirm to each other that, after due inquiry with
their respective counsel, based on present circumstances
they have a common interest in the defense of the
Investigation such that, absent material developments
with respect to such Investigation or other changed
circumstances, communications contemplated by this para.
(b) can appropriately be made subject to a joint defense
privilege under applicable United States law); (ii) with
respect to attendance at meetings (whether in person or
by telephone) with any prosecutor or law enforcement
official, such prosecutor or law enforcement official
expressly objects to such attendance; PROVIDED, however,
that none of Investor NewCo its Affiliates or its or
theirs advisors have affirmatively solicited any such
objection and will, if reasonably requested by Hoechst,
use reasonable efforts to overcome any such objection or
respective concerns; or (iii) the communication,
information or matter with respect to which Hoechst seeks
access or otherwise could seek access relates to the
exercise, performance or enforcement by Investor NewCo or
any other person of its or their rights or obligations
against or with respect to Hoechst under this Section
4.22. In addition, Hoechst undertakes that, with respect
to any particular exercise by Hoechst of any
participation right given to Hoechst under this para.
(b), Hoechst will use its reasonable best efforts to
exercise (or refrain from exercising) such right in a
manner which at the time reasonably takes into account
(applying the standard of a reasonable business person
(ORDENTLICHER KAUFMANN) the protection and furtherance of
the respective interests of both (i) Investor NewCo, its
Affiliates and its principal ultimate shareholders and
(ii) Hoechst and its principal ultimate shareholder and
such shareholder's Subsidiaries.
It is acknowledged that in all events Investor NewCo may
conduct or commission an audit or investigation of past
transactions or activities of Messer Group Companies and
may disclose any
<Page>
15
result of such audit or investigation, or any other information
or findings, to any Governmental Entity (including any law
enforcement official or authority), subject always to para. (d)
below.
It is furthermore agreed that in the event of non-compliance by
Investor NewCo with an exercise by Hoechst of its participation
rights set forth in this para. (b), Hoechst shall in addition
to any other rights under this Section 4.22 be entitled (but
not obligated) to seek to enforce such participation rights
through an action for specific performance; PROVIDED that
Hoechst shall not be entitled to seek such specific performance
if and to the extent that Investor NewCo waives its related
rights to Special Investigation Indemnification under this
Section 4.22.
(c) Investor NewCo shall, in connection with any settlement or
resolution of any Covered Claim I, consider causing each
applicable Controlled Messer Company to agree to and comply
with any conduct obligation to be reasonably required by any
Governmental Entity in connection with any settlement or
resolution of such Covered Claim I. Any damages resulting from
the imposition of any such conduct obligation, OTHER than any
direct cost thereof (beyond the costs associated with adoption
of the MGG Compliance Program) and other than losses of profits
or other costs which are the direct, proximate result thereof,
shall not constitute an indemnifiable Loss under this Section
4.22.
(d) The right of Investor NewCo to indemnification pursuant to this
Section 4.22 shall furthermore be subject to limitation or
reduction (including to zero), in accordance with the
provisions of this Section 4.22 and determined in accordance
with para. (e) below, if and to the extent Investor NewCo fails
to direct the handling of the matter which is the subject of
such indemnification, including any activity regarding any
audit, information gathering or investigation or any use or
disclosure referred to in para. (b) above, the defense of any
Covered Claim I or any settlement or resolution thereof, in a
manner which at such time reasonably took into account
(applying the standard of a reasonable business person
(ORDENTLICHER KAUFMANN)), the protection and furtherance of the
respective business and reputational interests of both (i)
Investor
<Page>
16
NewCo, its Affiliates and its principal ultimate shareholders
and (ii) Hoechst and its principal ultimate shareholder and
such shareholder's Subsidiaries. For the avoidance of doubt:
such interests of Hoechst shall be limited to those then
actually known by Investor NewCo and in any event shall include
the cost to it of any payment required to be made by Hoechst
pursuant to this Section 4.22.
It is acknowledged that Hoechst has informed Investor NewCo of
its belief that the handling to date of the Investigation by
the Messer Group including by its outside counsel has been
prudent and satisfactory. Investor NewCo agrees to consult with
Hoechst and to consider the views of Hoechst prior to making
any determination to remove the outside counsel who has
heretofore represented the Messer Group with respect to the
Investigation or to unilaterally causing a material change in
the overall approach vis-a-vis the authorities relating to the
Investigation.
Except as and to the extent provided by the foregoing, Section
6.7 shall not apply to the indemnification provided for in this
Section 4.22 and Investor NewCo shall have no further duty to
mitigate the amount of any Losses for which Hoechst is
obligated to indemnify Investor NewCo pursuant to this Section
4.22.
(e) In the event an arbitral tribunal (or court of law in case of
interim proceedings) constituted under Section 12.16 hereunder
is called upon to determine whether a failure has occurred
which could result in Investor NewCo's right to indemnification
pursuant to this Section 4.22 being subject to limitation or
reduction, i.e. (x) whether and to what extent Investor NewCo
has failed to comply with the obligations or standards set
forth in any of para. (a) through (d) of this Section 4.22 and
(y) whether such failure resulted in the Loss for which
Investor NewCo seeks indemnification under this Section 4.22
being greater in any material respect than it would have been
absent such failure, (hereafter a "COMPLIANCE FAILURE I"), the
arbitral tribunal shall apply the following special rule of
evidence:
A Compliance Failure I shall be determined to have occurred if
and only if Hoechst can demonstrate that such Compliance Fail-
<Page>
17
ure I occurred. After it has been determined that a Compliance
Failure I has occurred, the arbitral panel shall apply Section
287 of the German Civil Procedure Code with respect to the
determination of the amount by which such a Compliance Failure
I resulted in any Loss being greater than it would have been
absent such Compliance Failure I, which excess amount shall
then be the amount by which Investor NewCo's right to
indemnification shall be reduced in respect of such Compliance
Failure I.
However, if the Compliance Failure I that has been determined
to have occurred consists of an intentional and substantial
failure of Investor NewCo or its relevant Affiliate to comply
with para. (b) above, the amount by which such Compliance
Failure I resulted in any Loss being greater than it would
have been absent such Compliance Failure I shall be determined
by the arbitral panel solely based on what it deems fair and
equitable (EX AEQUO ET BONO), and such excess amount shall then
be the amount by which Investor NewCo's right to
indemnification shall be reduced in respect of such Compliance
Failure I. For the avoidance of doubt: The foregoing shall not
authorize the arbitral panel to deviate from the standards set
forth in para. (a) through (d).
If and to the extent a settlement of a Covered Claim I is to
involve the payment to or on behalf of a customer, supplier or
competitor of any Messer Group Company, the obligations of Investor
NewCo set forth in Section 6.7 shall apply to such settlement in
lieu of any other requirements set forth in para. (d) above. It is
understood that any information exchanged by the parties under this
Section 4.22 shall be subject to the confidentiality undertaking
contained in Section 12.12."
2.9 NEW SECTION 4.23. Section 4 will be supplemented by a new Section
4.23 as follows:
"4.23 EXPORT CONTROL. Hoechst agrees to indemnify Investor NewCo,
subject to the Pro Rata Principle, from any and all Losses
directly or indirectly suffered by Investor NewCo or any
Messer Group Company arising out of or relating to, directly
or indirectly, any involvement by any Messer Group Company
prior to the Closing Date in the supply of goods, services
(including personnel and/or technical support), information,
technology or documents, which
<Page>
18
involvement constituted a violation of any Applicable Law
intending to govern export control limitations or similar
matters (i.e., in Germany AUSSENWIRTSCHAFTSGESETZ or
KRIEGSWAFFENKONTROLLGESETZ, and statutory instruments under
those statutes and relevant European Community Legislation,
or similar applicable laws of other jurisdictions) due to
the nature or identity of the purchaser, recipient or consumer
thereof (including, without limitation, its nationality, type
or business and/or geographic location) (the "EXPORT CONTROL
INDEMNIFICATION").
For purposes of the foregoing indemnity, Losses shall (A)
exclude loss of profits and other consequential damages, other
than loss of profits that are the direct, proximate result of
the matter or circumstance giving rise to the claim under the
Export Control Indemnification, but in any event shall (B)
include (i) penalty payments or payments of similar character
(including amounts paid pursuant to any settlement) to
Governmental Entities, (ii) the costs or damages relating to
any intentional non-performance or termination of any
contract, transaction or obligation which is the subject of
any claim for indemnification under this Section 4.23, and
(iii) damage payments to third parties or payments made in
settlement of claims asserted by third parties. For the
avoidance of doubt: Losses under this Section 4.23 do not
include any loss of reputation or goodwill of the party who
directly or indirectly suffers such loss.
The amount of any Export Control Indemnification to be paid by
Hoechst hereunder shall be subject to the limitations set
forth in Section 6.3 as if this Section 4.23 would be a
Guarantee pursuant to Section 5.1 through 5.4 (e.g., the
Guarantee Cap is not applicable but any payments hereunder
and under Section 6 will be treated equally for the
determination whether the amount of paid indemnifications
have reached the amount of the Total Compensation). For the
avoidance of doubt, the provisions of Sections 6.1, 6.4, 6.5
and 6.10 shall not apply to any rights or claims of Investor
NewCo under this Section 4.23. Any Losses to be compensated by
Hoechst hereunder shall be determined after taking into
account the provisions of para. (e) below.
<Page>
19
Without limiting the rights and obligations of Investor NewCo
with respect to the management and supervision of the MGG
Group, the rights of Investor NewCo to receive
indemnification pursuant to the Export Control Indemnification
shall be subject to a limitation or reduction (including to
zero) if and to the extent the failure by Investor NewCo to
comply with any of the provisions in this Section 4.23 results
in a Loss for which Hoechst would otherwise be obligated to
indemnify Investor NewCo being greater in any material respect
than it would have been in the absence of such failure (to be
determined by the arbitral tribunal in the manner as set out
in para. (e) below). With respect to violations by Investor
NewCo, of its obligations under paragraphs (a) - (c) below,
the Export Control Indemnification shall only be subject to
any such limitation or reduction in respect of such violations
that are intentional and are not immaterial. In no event shall
Investor NewCo have any liability to Hoechst in respect of any
violation of the provisions of this Section 4.23, it being
understood that, except as provided in the last paragraph of
paragraph (b) below with respect to the availability of
specific performance, the only remedy available to Hoechst in
respect of any such violation shall be a limitation or
reduction of the rights of Investor NewCo to receive
indemnification pursuant to the Special Investigation
Indemnification, as aforesaid. It is understood and agreed
that the foregoing shall not be deemed to limit the rights and
obligations of either Investor NewCo or Hoechst not
specifically addressed herein and which may apply as a
matter of general concepts of German law, PROVIDED that in
the event of any conflict between such rights and
obligation, on the one hand, and the specific rights and
obligations and other arrangements contemplated by this
Section 4.23, on the other, the provisions of this Section
4.23 shall control.
(a) In the event that Investor NewCo or any Messer Group Company,
or any officer, director, partner, employee or agent of any
of the foregoing, becomes or is threatened to become subject
to any claim, action or proceeding (regardless of whether
asserted or initiated by any Governmental Entity or any
private entity or person) for which Investor NewCo may seek
indemnification pursuant to this Section 4.23 (a "COVERED
CLAIM II"), Investor NewCo shall inform Hoechst of such
Covered Claim II promptly
<Page>
20
following Investor NewCo becoming aware of such Covered
Claim II.
(b) Investor NewCo shall regularly, as Investor NewCo reasonably
deems to be appropriate and practicable, consult with
Hoechst regarding the manner in which any Covered Claim II
is to be handled and resolved (including as to any material
development relating to any such Covered Claim II and as to
Investor NewCo's view of the outcome of any such matter).
Hoechst shall (at its own expense) be entitled to
participate (including by being present through one or two
representatives), unless reasonably impracticable under the
factual circumstances, with respect to any Covered Claim II
in: (i) any gathering of information (including interviews
of any witnesses whether or not affiliated with the Messer
Group), (ii) any communication to or with or meetings with
current or prospective adversaries (i.e. prosecutors and
third party claimants) and current or prospective witnesses
(in his or her capacity as such) and (iii) any negotiation
and preparation of any defense or settlement thereof
(including by receiving relevant information, and consulting
with Investor NewCo, and its advisors).
It is understood that such participation by Hoechst shall
be comprised of: receiving relevant information and/or
consulting with Investor NewCo and its advisors and, in
conjunction with and not independently of Investor NewCo
and/or its advisors, attending meetings held with current
or prospective adversaries or witnesses (it being
understood, however, that such right to attend will be
limited to a right to observe, without a right to speak at,
any such meetings). It is understood that the foregoing
participation and consultation rights of Hoechst shall not
include the right to attend meetings held solely between
Investor NewCo or any of its Affiliates and its or their
counsel (although Investor NewCo may invite Hoechst to
attend such meetings); PROVIDED, however, that if and to the
extent that Investor NewCo or any Messer Group Company and
its or their counsel are making or have made material
decisions concerning the defense or settlement of any
Covered Claim II, Investor NewCo shall, and shall direct
such counsel to, unless reasonably impractical under the
factual circumstances, consult with Hoechst and consider
the
<Page>
21
views of Hoechst relating to the subject matter of such
decision before acting upon such decision or otherwise
taking any step which renders such decision irrevocable. In
all events and notwithstanding any rights of Hoechst
provided for herein, Investor NewCo and/or the applicable
Messer Group Company shall, as between such entity and
Hoechst, have the sole right to control and direct the
defense of such Covered Claim II and any gathering, use or
disclosure of information to parties other than Hoechst and
any related communication, defense, settlement or resolution
thereof. For the avoidance of doubt: A Covered Claim II does
not include any claim or proceeding directly brought against
Hoechst or any of its Affiliates (other than the Messer
Group Companies) (a "DIRECT HOECHST CLAIM II") regardless
of whether related to any claim or proceeding constituting
a Covered Claim II (it being understood if any Direct
Hoechst Claim II relates to a Covered Claim II, Hoechst will
reasonably consult and cooperate with Investor NewCo with
respect thereto). Accordingly, nothing contained herein
shall be understood to limit any rights of Hoechst or its
respective Affiliate to control and defend any Direct
Hoechst Claim II, nor shall the existence of any Direct
Hoechst Claim II limit or alter any rights of Investor NewCo
hereunder.
The parties shall use their best efforts to ensure that all
information received or transferred by or to Hoechst or its
advisors related to any matter relevant to this Section 4.23
shall be protected by the joint defense privilege, if
applicable; PROVIDED that in no event shall the foregoing be
deemed to limit any right of Investor NewCo to waive any
privilege, subject always to para. (d) below.
Any particular right of Hoechst under this para. (b) may be
limited by Investor NewCo, if, and then only to the extent
that, (i) Investor NewCo is advised by outside counsel that
due to factors arising or first becoming known after the
Closing Date the exercise of such right by Hoechst poses a
material risk of a waiver of attorney-client privilege by
Investor NewCo or any Messer Group Company (after taking
into account any joint defense privilege), PROVIDED that
Hoechst may, in its reasonable discretion, require that
such advice be reviewed by an independent expert on matters
concerning privilege to be selected by Hoechst
<Page>
22
and reasonably acceptable to Investor NewCo (e.g., a
professor specializing in the field of evidence at a
prominent law school in the United States) and to the
extent that such expert concludes that the exercise of such
right by Hoechst will not pose a material risk of such a
waiver of attorney-client privilege, Investor NewCo shall
promptly remove such limitation on such participation right
of Hoechst and shall make available to Hoechst any
information or access previously not made available to
Hoechst on the basis of such advice (in this regard Hoechst,
MGG and Investor NewCo confirm to each other that, after
due inquiry with their respective counsel, based on present
circumstances they have, in all likelihood, a common
interest in the defense of any matter giving rise to an
Export Control Indemnification such that, absent material
developments with respect to such matters or other changed
circumstances, communications contemplated by this para.
(b) can appropriately be made subject to a joint defense
privilege, if relevant, under applicable United States
law); (ii) with respect to attendance at meetings (whether
in person or by telephone) with any prosecutor or law
enforcement official, such prosecutor or law enforcement
official expressly objects to such attendance; PROVIDED,
however, that none of Investor NewCo its Affiliates or
its or theirs advisors have affirmatively solicited any such
objection and will, if reasonably requested by Hoechst, use
reasonable efforts to overcome any such objection or
respective concerns; or (iii) the communication, information
or matter with respect to which Hoechst seeks access or
otherwise could seek access relates to the exercise,
performance or enforcement by Investor NewCo or any other
person of its or their rights or obligations against or
with respect to Hoechst under this Section 4.23. In
addition, Hoechst undertakes that, with respect to any
particular exercise by Hoechst of any participation right
given to Hoechst under this para. (b), Hoechst will use its
reasonable best efforts to exercise (or refrain from
exercising) such right in a manner which at the time
reasonably takes into account (applying the standard of a
reasonable business person (ORDENTLICHER KAUFMANN) the
protection and furtherance of the respective interests of
both (i) Investor NewCo, its Affiliates and its principal
ultimate shareholders and (ii) Hoechst and its principal
ultimate shareholder and such shareholder's Subsidiaries.
<Page>
23
It is acknowledged that in all events Investor NewCo may
conduct or commission an audit or investigation of past
transactions or activities of Messer Group Companies and
may disclose any result of such audit or investigation, or
any other information or findings, to any Governmental
Entity (including any law enforcement official or
authority), subject always to para. (d) below.
It is furthermore agreed that in the event of non-compliance
by Investor NewCo with an exercise by Hoechst of its
participation rights set forth in this para. (b), Hoechst
shall in addition to any other rights under this Section
4.23 be entitled (but not obligated) to seek to enforce such
participation rights through an action for specific
performance; PROVIDED that Hoechst shall not be entitled to
seek such specific performance if and to the extent that
Investor NewCo waives its related rights to Export Control
Indemnification under this Section 4.23.
(c) Investor NewCo shall, in connection with any settlement or
resolution of any Covered Claim II, consider causing each
applicable Controlled Messer Company to agree to and comply
with any conduct obligation to be reasonably required by any
Governmental Entity in connection with any settlement or
resolution of such Covered Claim II. Any damages resulting
from the imposition of any such conduct obligation, OTHER
than any direct cost thereof (beyond the costs associated
with adoption of the MGG Compliance Program) and other than
losses of profits or other costs which are the direct,
proximate result thereof, shall not constitute an
indemnifiable Loss under this Section 4.23.
(d) The right of Investor NewCo to indemnification pursuant to
this Section 4.23 shall furthermore be subject to limitation
or reduction (including to zero), in accordance with the
provisions of this Section 4.23 and determined in accordance
with para. (e) below, if and to the extent Investor NewCo
fails to direct the handling of the matter which is the
subject of such indemnification, including any activity
regarding any audit, information gathering or investigation
or any use or disclosure referred to in para. (b) above,
the defense of any Covered Claim II or any settlement or
resolution
<Page>
24
thereof, in a manner which at such time reasonably took
into account (applying the standard of a reasonable
business person (ORDENTLICHER KAUFMANN)), the protection
and furtherance of the respective business and reputational
interests of both (i) Investor NewCo, its Affiliates and
its principal ultimate shareholders and (ii) Hoechst and its
principal ultimate shareholder and such shareholder's
Subsidiaries. For the avoidance of doubt: such interests of
Hoechst shall be limited to those then actually known by
Investor NewCo and in any event shall include the cost to
it of any payment required to be made by Hoechst pursuant
to this Section 4.23.
Except as and to the extent provided by the foregoing,
Section 6.7 shall not apply to the indemnification provided
for in this Section 4.23 and Investor NewCo shall have no
further duty to mitigate the amount of any Losses for which
Hoechst is obligated to indemnify Investor NewCo pursuant
to this Section 4.23.
(e) In the event an arbitral tribunal (or court of law in case
of interim proceedings) constituted under Section 12.16
hereunder is called upon to determine whether a failure has
occurred which could result in Investor NewCo's right to
indemnification pursuant to this Section 4.23 being subject
to limitation or reduction, i.e. (x) whether and to what
extent Investor NewCo has failed to comply with the
obligations or standards set forth in any of para. (a)
through (d) of this Section 4.23 and (y) whether such
failure resulted in the Loss for which Investor NewCo seeks
indemnification under this Section 4.22 being greater in any
material respect than it would have been absent such
failure, (hereafter a "COMPLIANCE FAILURE II"), the arbitral
tribunal shall apply the following special rule of evidence:
A Compliance Failure II shall be determined to have occurred
if and only if Hoechst can demonstrate that such Compliance
Failure II occurred. After it has been determined that a
Compliance Failure II has occurred, the arbitral panel shall
apply Section 287 of the German Civil Procedure Code with
respect to the determination of the amount by which such a
Compliance Failure II resulted in any Loss being greater
than it would have been absent such Compliance Failure II,
which excess amount shall then be
<Page>
25
the amount by which Investor NewCo's right to indemnification
shall be reduced in respect of such Compliance Failure II.
However, if the Compliance Failure II that has been determined
to have occurred consists of an intentional and substantial
failure of Investor NewCo or its relevant Affiliate to comply
with para. (b) above, the amount by which such Compliance
Failure II resulted in any Loss being greater than it would
have been absent such Compliance Failure II shall be
determined by the arbitral panel solely based on what it deems
fair and equitable (EX AEQUO ET BONO), and such excess amount
shall then be the amount by which Investor NewCo's right to
indemnification shall be reduced in respect of such Compliance
Failure II. For the avoidance of doubt: The foregoing shall
not authorize the arbitral panel to deviate from the standards
set forth in para. (a) through (d).
If and to the extent a settlement of a Covered Claim II is to
involve the payment to or on behalf of a customer, supplier or
competitor of any Messer Group Company, the obligations of Investor
NewCo shall not enter into and shall not cause or permit any Messer
Group Company to enter into such settlement, without the prior
written consent of Hoechst which consent shall not be unreasonably
withheld or delayed. In no event shall any intentional
non-performance or termination of a contract, transaction or
obligation which may give rise to an Export Control Indemnification
be considered a breach of any obligation of Investor NewCo
hereunder.
It is acknowledged that a substantial due diligence effort has been
made prior to and after the execution of the Messer BCA with respect
to, among other things, the export activities of the Messer Group.
On the basis of such effort and the results thereof, Hoechst does
not currently believe that any past export activities of the MGG
Group violated Applicable Law in any material respect. In no event
shall such due diligence effort or the results thereof, or the
aforementioned belief of Hoechst, be deemed to limit in any respect
the scope of the Export Control Indemnification or any related
rights of Investor NewCo.
Any claims of Investor NewCo under this Section 4.23 are subject to
Section 6.6, PROVIDED that the limitation date for purposes hereof
shall be the 5th anniversary of the Closing Date. It is understood
that any infor-
<Page>
26
mation exchanged by the parties under this Section 4.23 shall be
subject to the confidentiality undertaking contained in Section
12.12."
2.10 NEW SECTIONS 4.24 - 4.26. Section 4 will be supplemented by the
addition of new Sections 4.24 through 4.26, as follows:
"4.24 INDEMNIFICATION RELATING TO CERTAIN INTERIM MATTERS. Hoechst
agrees to indemnify Investor NewCo, subject to the Pro Rata
Principle, from any and all Losses directly or indirectly
suffered by any Messer Group Company arising out of
(i) any failure of the Section 3.1(s) Certificate to be
true and correct in all respects on and as of the
Closing Date,
(ii) any failure of any responses to any Questionnaire, as
made available to Investor NewCo immediately prior to
the execution of this Amendment Agreement, and as
updated pursuant to any Questionnaire Updates delivered
prior to the Closing Date, to be true, correct in all
respects and not misleading in all respects, all with
respect to its disclosure of any Undesired Business
Activity of a Controlled Messer Company to the extent
addressed by the Questionnaire,
(iii) any failure of the Section 3.1(u) Certificate to be
true and correct in all respects on and as of the
Closing Date (including as a result of any failure of
updated information to be supplied as required by the
Instruction Letters) to the extent such failure relates
to an Undesired Business Activity of a Controlled Messer
Company, or
(iv) any failure of the Section 3.1(v) Certificate to be true
and correct in all respects on and as of the Closing
Date, unless the matter causing the Section 3.1(v)
Certificate not to be true and correct was fairly
disclosed in the materials referred to in Section 3
below.
For purposes of the indemnity set forth in this Section 4.24,
the Losses with respect to any failure referred to in the
foregoing clauses (i) - (iv) shall be solely comprised of the
out-of-pocket costs incurred by the respective Messer Group
Company as a result of immediately terminating or
discontinuing the contract,
<Page>
27
transaction, obligation, arrangement, practice, condition or
circumstance (collectively the "BUSINESS RELATIONSHIP") which
is the subject of such failure, including without limitation
any such costs relating to any intentional non-performance or
termination of any such Business Relationship on the part of
such Messer Group Company because such Business Relationship
constitutes an Undesired Business Activity (e.g., the
indemnity does apply if the Business Relationship is
terminated due to the existence of an Undesired Business
Activity, and does not apply if such termination is for other
reasons, such as non-profitability), and the costs of any
related claims by any third party or the costs of settling or
resolving any such claim.
It is understood that any claims of co-shareholder in any
Messer Group Company (in its capacity as such) caused by (i)
the existence of the Questionnaire and the Instruction
Letters, for (ii) the preparation of the responses to the
Questionnaire, (iii) the compliance with the Instruction
Letters, or (iv) the termination of any business activities
in connection with the foregoing shall not constitute a Loss
to be indemnified by Hoechst under this Section 4.24.
Section 6 shall be applicable for any claims of Investor NewCo
hereunder as follows:
Section 6.1 shall not be applicable. Section 6.2 shall be
applicable, subject to the modifications herein. Section 6.3
shall be applicable; PROVIDED that the applicable De Minimis
Amount shall be EUR 100,000 and the Threshold and the
Guarantee Cap shall not be applicable; PROVIDED further that
Investor NewCo shall only be entitled to any indemnification
claims hereunder to the extent such claims exceed a total
amount of EUR 1,000,000 (the "BASKET"), and then only amounts
in excess of the Basket; PROVIDED further that Hoechst's
aggregate liability under this Section 4.24 shall not exceed
an amount of EUR 20,000,000. Sections 6.4, 6.5 and 6.6 shall
be applicable; PROVIDED that for purposes of Section 6.6 the
relevant limitation date shall be September 30, 2001. Sections
6.7, 6.8, 6.10 and 6.11 shall not be applicable. Section 6.9
shall be applicable MUTATIS MUTANDIS. Sections 6.12 through
6.16 are without relevance hereunder."
<Page>
28
"4.25 MGG COMPLIANCE PROGRAM. During the period prior to the
Closing, Hoechst and MIG agree to cause MGG to cooperate with
respect to, and to direct the senior management of MGG to
facilitate, the adoption and implementation of the MGG
Compliance Program."
"4.26 SPECIAL PAYMENT ACTIVITIES. Except for matters to be
indemnified by Hoechst pursuant to Section 4.22, Hoechst shall
indemnify Investor NewCo, subject to the Pro Rata Principle
from any and all Losses directly or indirectly suffered by
Investor NewCo or any Messer Group Company arising out of or
resulting from, directly or indirectly, any Special Payment
Activities engaged in by any Controlled Messer Company since
January 1, 1995. The provisions of Section 6 (other than
Sections 6.1 and 6.10) shall apply, as if this Section 4.26
were a Guarantee pursuant to Section 5.5 et seqq.; PROVIDED
that the applicable De Minimis Amount shall be EUR 250,000
and the Threshold shall not apply and PROVIDED further that
the limitation date (cf. Section 6.6) for purposes hereof
shall be the 5th anniversary of the Closing Date."
2.11 AMENDMENT OF SECTION 5.17. Section 5.17 shall be amended to read as
follows:
"5.17 OTHER LIABILITIES. Other than guarantees referred to in
Section 5.10(a)(iv), and (i) to be disclosed in the Exhibits
to this Section 5 or (ii) involving not more than EUR
2,500,000, there are (A) no liabilities exceeding an amount of
EUR 25,000,000 in the aggregate of any Material Messer Company
for circumstances attributable to the time prior to the date
hereof which are (as to the internal relationship) solely
stemming from any obligations of the Messer Group Companies
other than the Material Messer Companies and (B) no
liabilities of the Messer Group Companies listed in EXHIBIT
5.17."
2.12 NEW SECTION 12.1. Section 12.1 shall be amended to read as follows:
"12.1 MIG RIGHTS. MIG hereby agrees that the transactions
contemplated by this Agreement will be consummated, and waives
all rights of first refusals or other preference rights it may
have with respect to the sale and transfer of the Hoechst-MGG
Share. MIG and Hoechst shall procure that all legal
formalities required under
<Page>
29
the articles of association of MGG for the implementation of
the transactions contemplated by this Agreement will be
fulfilled. Subject to the foregoing, nothing contained in this
Agreement shall be construed such as that MIG waives any of
its rights under the current articles of association in force
as of today attached as EXHIBIT 12.1(a) for
documentary purposes only (the "MGG-ARTICLES 2000") or under
the agreement in principle attached as EXHIBIT 12.1(b) (the
"GRUNDSATZVEREINBARUNG"); PROVIDED that Hoechst, Hoechst
NewCo II and MIG are in agreement that prior to the execution
of the Share Loan Agreement (cf. Section 2.6) the
GRUNDSATZVEREINBARUNG shall be terminated and new articles of
association of MGG will be notarised. The MGG-Articles 2001
shall from the moment of their resolution and thus before
their entry into the commercial register enter into full force
and effect and become binding for the shareholders of MGG and
the corporate bodies of MGG. To the extent any resolution
under the MGG-Articles 2001 requires a majority vote of more
than 51%, Hoechst NewCo II - to the extent Hoechst is the
direct or indirect majority shareholder of MGG - shall only
give its consent to such resolutions if a corresponding
approving vote has been passed by the general shareholders'
meeting of Hoechst NewCo II pursuant to Section 119 Subsection
2 of the German Stock Corporation Act (AKTIENGESETZ) with a
majority at least equaling the one required. Any rights of MGG
and Hoechst under said GRUNDSATZVEREINBARUNG otherwise remain
in full force and effect until the Closing Date. For the
avoidance of doubt: If for any reason the Closing Date does
not occur, any and all rights and obligations of Hoechst and
MGG under the MGG-Articles 2000 and THE GRUNDSATZVEREINBARUNG
remain unaffected. In the event that
(i) the Closing is not consummated, or
(ii) this Agreement will be dissolved (AUFHEBUNG) or
rescinded (RUCKABWICKLUNG), or
(iii) the Call Option is exercised, but neither the
Counter-Call Option nor the Counter-Put Option is
exercised or Hoechst prevents the consummation of such
options in violation of this Agreement,
<Page>
30
Hoechst and Hoechst NewCo III hereby undertake everything on
their side towards MIG
(a) to reestablish the shareholdings in MGG as existing
immediately prior to the Closing and to reinstate into
full force and effect and without undue delay the
MGG-Articles 2000 and the GRUNDSATZVEREINBARUNG and
(b) as of the date of one of the aforementioned events (i)
to (iii), and until the re-entering into full force
and effect of the MGG-Articles 2000 and the
GRUNDSATZVEREINBARUNG, to put MIG into the position as
if the MGG-Articles 2000 and the GRUNDSATZVEREINBARUNG
would be in force, PROVIDED that Hoechst shall be
granted the possibility to undo the Share Loan Agreement
between Hoechst NewCo III and Hoechst prior to such
reinstatement without undue delay, so that the
MGG-Articles 2000 and the GRUNDSATZVEREINBARUNG will
only re-enter into full force and effect after the
rescission (RUCKABWICKLUNG) of such Share Loan
Agreement.
For purposes of clarification: MIG, Allianz Capital
Partners GmbH and GS Funds have entered into a separate
agreement as of the date hereof, whereby MIG undertakes
to contribute the MIG-MGG Share to Hoechst NewCo II and
receive a shareholding of 33 1/3% of the stated capital
(GRUNDKAPITAL) of Hoechst NewCo II as consideration. MIG
undertakes not to change such shareholding amount of
33 1/3% without the prior consent of Hoechst."
3. ADDITIONAL DISCLOSURES; UPDATED MESSER GROUP CHART
3.1 ADDITIONAL DISCLOSURES. Prior to the notarization hereof, Hoechst
has provided to Investor NewCo a set of information collected in
connection with the Questionnaires and relating to certain present
and past activities of the Messer Group. The receipt of such
information and its content is hereby confirmed by Investor NewCo.
Such information is deemed disclosed to Investor NewCo for
purposes of Section 5.20 of the Messer BCA. The foregoing shall in
no event be deemed to limit, or to apply to, Section 3.1(m) or any
related right of Investor NewCo.
<Page>
31
3.2 UPDATED MESSER GROUP CHART. Pursuant to Section 5.1 of the Messer
BCA, the list contained in Exhibit C of the Messer BCA is attached
in its updated version as EXHIBIT M hereto; the parties acknowledge
that any transactions contemplated by the Agreement or this
Amendment Agreement are not reflected in EXHIBIT M.
4. FINANCING OF SINGAPORE OPERATIONS; DISPROPORTIONATE GUARANTEES
4.1 TEXACO TRANSACTION AGREEMENT. The parties have taken notice and
approve of MGG having executed with Texaco Nederland B.V.
("TEXACO"), an agreement dated March 29, 2001 (the "TEXACO
TRANSACTION AGREEMENT"). As a result thereof, MGG made a cash
payment to Texaco in the amount of US$ 15,139,143.87
(DM 33,574,772.38) on March 31, 2001. Of such amount and internally
as between Hoechst and MGG and subject to the occurrence of the
Closing Date, Hoechst will bear US$ 10,092,762.58 (DM 22,383,181,59)
(the "TEXACO PORTION") and MGG will bear the remainder in accordance
with the terms of the Singapore Separation Agreement to be executed
at the Closing Date; these amounts shall be deemed Shareholder Loans
as defined in and for purposes of the Singapore Separation
Agreement and shall be included in the promissory notes to be issued
under Section 4.5 of the Singapore Separation Agreement. On
April 18, 2001, Hoechst granted MGG a shareholder loan in the amount
of EUR 11,300,000.00 (DM 22,100,879.00). Subject to the occurrence
of the Closing Date, this amount will be set off on the Closing Date
against the Texaco Portion. As a consequence, on the Closing Date,
Hoechst owes MGG an amount of DM 282,302.59 (the "TEXACO BALANCE")
in connection with the Texaco Transaction Agreement.
4.2 SSPL BANK DEBT. As a further result of the Texaco Transaction
Agreement, the parties acknowledge that MGG committed itself
vis-a-vis Texaco that the bank debt of Singapore Syngas Pty. Ltd.
("SSPL") will be repaid at the latest on June 30, 2001.
4.3 IMPLEMENTATION OF SINGAPORE SPV. The parties assume that they will
establish the Singapore SPV as provided for in the Messer BCA at the
Closing Date. In case that such establishment will not occur at the
Closing Date, they will treat each other as if such establishment
had
<Page>
32
had occurred as of the Closing Date and will establish the
Singapore SPV as soon as possible.
4.4 HOECHST CLOSING AMOUNT. The parties agree that the Hoechst Closing
Amount as defined in and owed under the Singapore Separation
Agreement amounts to DM 51,422,438.
4.5 CELANESE SETTLEMENT. Furthermore, the parties acknowledge that as a
result of a certain settlement agreement by and among Singapore
Syngas Pty. Ltd. and Celanese Singapore Pte. ("CELANESE"), MGG and
Texaco (the "CELANESE SETTLEMENT AGREEMENT"), MGG agreed to make a
cash payment to Celanese in the amount of US$ 26,500,000 (DM
58,189,620.52). Of such amount and internally as between Hoechst and
MGG subject to the occurrence of the Closing Date, Hoechst bears an
amount of US$ 17,666,666 (DM 38,793,080.34) (the "CELANESE PORTION")
and MGG bears an amount of US$ 8,833,334 (DM 19,396,540.18) in
accordance with the terms of the Singapore Separation Agreement to
be executed at the Closing Date; these amounts shall be deemed
Shareholder Loans as defined in and for purposes of the Singapore
Separation Agreement and shall be included in the promissory notes
to be issued under Section 4.5 of the Singapore Separation
Agreement. On March 30, 2001, Hoechst granted MGG a shareholder loan
in the amount of EUR 19,834,961 (DM 38,793,812). This amount will,
subject to the occurrence of the Closing Date, be set off on the
Closing Date against the Celanese Portion. As a consequence, on the
Closing Date MGG owes to Hoechst an amount of DM 731.65 (the
"CELANESE BALANCE") in connection with the Celanese Settlement
Agreement. Any future damage payments to be made by MGG pursuant to
the Celanese Settlement Agreement prior to the Closing Date will be
borne and payable by Hoechst and MGG in a ratio of 66 2/3% (Hoechst)
and 33 1/3% (MGG), subject to the terms of the Singapore Separation
Agreement.
4.6 DISPROPORTIONATE GUARANTEES. The parties agree that on the Closing
Date, subject to the occurrence of the Closing Date, Hoechst has to
pay DM 18,367,805.15 (the "BOMBAY OXYGEN PAYMENT") under
Section 4.17(m) of the Messer BCA. MGG hereby assigns, subject to
the occurrence of the Closing Date, its and the relevant banks'
(to the extent MGG has or will receive such claims of the
banks) payment claims against Bombay Oxygen Corporation Limited in
the partial amount of DM 18,367,805.15 to Hoechst which accepts
such assignment. Without
<Page>
33
undue delay after the Closing Date, MGG shall deliver to Hoechst a
written confirmation of such assignment.
4.7 HOECHST CLOSING BALANCE. As a result of the various balances in and
as a discharge of its obligation under this Section 4, Hoechst owes
MGG on the Closing Date, subject to the occurrence of the Closing
Date, an amount of DM 70,071,814.08 which amount is to be deducted
by DM 571,814.08 as a handling fee, so that the amount to be paid
by Hoechst amounts to DM 69,500,000 (the "HOECHST CLOSING BALANCE")
to the bank account no. 0944488, Deutsche Bank AG, Bank Code
500 700 10, SWIFT: DEUTDEFF. The Hoechst Closing Balance is
calculated as follows: DM 282,302.59 (Texaco Balance) +
DM 51,422,438 (Hoechst Closing Amount)./. DM 731.66 (Celanese
Balance) + DM 18,367,805.15 (Bombay Oxygen Payment)./. 571,814.08
(handling fee). The calculation of the Hoechst Closing Balance
(without the handling fee) is summarized for clarification purposes
in the chart attached as EXHIBIT 4.7. Section 12.14 of the Messer
BCA shall apply, so that Hoechst can verify the various amounts
and balances in this Section 4 and under the Singapore Separation
Agreement. Any overpayments or shortfalls will be balanced by the
parties promptly.
5. ANTITRUST FILINGS
With reference to Section 4.9(d) the parties confirm, without
assuming any liability, that in their opinion as of the date
hereof, no further antitrust filings as referred to in Section
3.1 (c) of the Messer BCA will be required for the possible
transactions in 2002 (i.e., Call Option and Counter-Call Option
or Counter-Put Option, Forward Sale Agreements I and II). If any
party comes to a conclusion different from the foregoing, it
shall inform the other parties thereof promptly.
6. MISCELLANEOUS
6.1 The Messer BCA, as supplemented by this Agreement, is and
shall continue to be in full force and effect. For the
avoidance of doubt: This amendment agreement shall not have
any effect on the validity of the amendment to the Messer BCA
dated 30 March 2001.
6.2 The parties may agree to restate the Messer BCA in its entirety
to reflect the amendments made to the Messer BCA as first executed.
In case of differences this deed shall prevail.
<Page>
35
This Deed and its Exhibits were read to the persons appeared in the
presence of the notary, with the exception of Exhibits C and 4.7, which were
presented to the appeared for inspection, the parties waiving to have them
read aloud, signing each page of them; the deed was approved by the parties
and signed by them and by the notary as follows:
/s/ Konrad Wartenberg
/s/ K.P. Weber
/s/ Christof Jackle
/s/ A. Kossmann
/s/ Andrea Eggenstein
/s/ David Wende, Notarvertreter