FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of July, 2000
BASF Corporation
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(Translation of Registrant's Name Into English)
Carl Bosch Strasse 38
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Ludwigshafen, Germany
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67056
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(Address of Principal Executive Offices)
(Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.)
Form 20-F X Form 40-F
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(Indicate by check mark whether the registrant by furnishing the
information contained in this Form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.)
Yes No X
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(If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-_______)
Enclosure
CONFIDENTIAL TREATMENT
Note: Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Commission under Rule 24b-2. The omitted
confidential material has been filed separately with the Commission. The
location of the omitted confidential information is indicated herein by
asterisks.
FIRST AMENDMENT TO PURCHASE AGREEMENT
This FIRST AMENDMENT, dated as of June 30, 2000 (the "First
Amendment"), to the PURCHASE AGREEMENT (the "Agreement") dated as of March 20,
2000 by and among AMERICAN CYANAMID COMPANY, a Maine Corporation ("Cyanamid"),
AMERICAN HOME PRODUCTS CORPORATION, a Delaware corporation ("AHP" and, together
with Cyanamid, "Sellers") and BASF Aktiengesellschaft, a corporation organized
under the laws of Germany ("Buyer"). All terms not otherwise defined herein
shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
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WHEREAS, the parties hereto have heretofore entered into the Agreement;
WHEREAS, the parties hereto have heretofore entered into the
Supplemental [***] Agreement (as defined herein);
WHEREAS, the parties hereto desire to amend the Agreement as provided
in this First Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, and for
other good and valuable consideration, the parties hereto, intending to be
legally bound, agree as follows:
1. The Agreement is hereby amended by deleting Exhibit A thereto in
its entirety and substituting in lieu thereof Exhibit A attached
hereto.
2. As contemplated by Section 6.2 of the Agreement, the parties
hereby agree that the Included Intercompany Accounts (as defined
herein) need not be settled prior to the Closing (it being
understood and agreed by the
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
parties that, as of the Closing Date, the Included Intercompany
Accounts (including a transferred clearing account) will net out
to zero). To the extent not settled prior to the Closing, the
Included Intercompany Accounts shall (i) remain on the books and
records relating to the Business (it being understood that, for
purposes of Section 3.5(a) of the Agreement, the Included
Intercompany Accounts shall be eliminated from the Closing
Statement), and (ii) be deemed for all purposes under the
Agreement to be Assets (and not Excluded Assets) and Assumed
Liabilities (and not Excluded Liabilities), as the case may be. As
used herein, the term "Included Intercompany Accounts" means all
receivables and payables relating to the Business between or among
any of the Companies, the Sellers, or Sellers' Affiliates;
provided, however, that the following shall not be deemed to be
Included Intercompany Accounts: (a) [***] intercompany balances
with [***], and (b) [***] intercompany balances with [***], [***]
and [***].
3. In connection with the execution and delivery of the Supplemental
[***] Agreement (as defined below), the Agreement is hereby
amended as follows:
(i) to delete from Section 1.10 the words: "the [***]
Agreements";
(ii) to delete from Section 1.11 the words: "other than the [***]
Agreements";
(iii) to delete Section 1.60 thereof in its entirety and
substitute in lieu thereof the following:
"Supplemental [***] Agreement" shall mean the Supplemental
Assignment and License Agreement dated as of June 29, 2000
among the parties hereto and the other parties named
therein, and any agreements executed pursuant thereto."
(iv) to insert at the end of Section 1.72 the following words:
"as all such agreements may have been modified by the
Supplemental [***] Agreement.";
(v) to insert at the end of Section 1.73 the following words:
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
"and taking into account the modifications to such
obligations effected by the Supplemental [***] Agreement.";
and
to delete Sections 3.2(e) and 3.3(g) in their entirety.
4. Section 1.37(iv) of the Agreement is hereby amended by inserting
the following language on the first line following the words
"Excluded Assets":
"(it being understood that pension liabilities on the books and
records of [***] relating to retirees of [***] shall not be deemed
to be Excluded Liabilities)"
5. Section 1.37 of the Agreement is hereby amended by inserting the
following language following paragraph (iv):
(v) liabilities relating to [***] representative offices in [***]
and [***].
6. Section 2.1 of the Agreement is hereby amended by inserting on the
ninth line after the words "Assumed Liabilities," the following
words: "and the Permitted Encumbrances."
7. The Agreement is hereby amended by deleting the last sentence of
Section 3.1 of the Agreement in its entirety and substituting in
lieu thereof the following:
"For purposes of this Agreement, the Closing will be treated as if
it occurred as of midnight, June 30/July 1, 2000 local time in
each applicable jurisdiction."
8. The Agreement is hereby amended by inserting a new Section 3.8 as
follows:
"3.8 P.T. DHARMA ARDHA FORMA ADJUSTMENT
(a) In the event Cyanamid is required to sell any or all of its
interest in P.T Dharma Ardha Forma ("P.T. Dharma") to any or
all other shareholders pursuant to the terms of its Articles
of Association, Sellers shall promptly deliver to Buyer the
consideration received in respect of
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
such interest in lieu of conveying such interest to Buyer.
(b) In the event Cyanamid is required to purchase any or all of
the interests of the other shareholders of P.T. Dharma
pursuant to the terms of the Joint Venture Agreement among
the shareholders, such interests shall be conveyed to Buyer,
and Buyer shall be required to deliver promptly to either
Sellers or such shareholders, as applicable, the
consideration for the purchase of such interests.
(c) Any adjustments required pursuant to this Section 3.8 shall
be considered an adjustment to the Purchase Price. Any
payments required shall be wired to the appropriate entity
within seven business days of receipt of applicable wire
transfer instructions."
9. The Agreement is hereby amended by inserting a new Section 3.9 as
follows:
"3.9 ADJUSTMENT TO PURCHASE PRICE IN LOCAL AGREEMENTS.
The adjustment to the purchase price set forth in any agreement
with respect to a transfer of Assets by an Asset Transferor Entity
to Buyer or its Affiliate, a transfer of Shares by a Share
Transferor Entity to Buyer or its Affiliate, or a transfer of a
Joint Venture Interest by an Affiliate of Sellers to an Affiliate
of Buyer shall (except with respect to the allocation thereof)
have no effect on, and shall be subject to, the adjustment to the
Purchase Price to be made pursuant to Section 3.6 of the
Agreement."
10. Section 6.1 of the Disclosure Schedule shall be amended by adding
the language set forth on Annex I to this First Amendment. Buyer
hereby agrees (i) to pay all out-of-pocket costs related to the
formation of any new companies and all transfer taxes, fees,
duties (excluding income and net worth taxes) and other
out-of-pocket costs related to the changes and actions set forth
on Items A, C and D of Annex I (including, without limitation, the
cost of company liquidations), but only to the extent that such
costs exceed the costs that would have been incurred had such
changes and actions not occurred, and (ii) that any breach of any
representation, warranty or covenant of Sellers contained in the
Agreement occurring as a result of such actions or changes shall
be deemed not to have
occurred and shall not entitle Buyer to any right, remedy or
recourse against Sellers or their Affiliates in respect thereto.
Sellers hereby agree that (x) the obligations set forth in
subsection (i), above, shall apply vice versa to Sellers with
respect to Item E of Annex I.
11. The Agreement is hereby amended by deleting Section 6.3(a) thereof
in its entirety and substituting in lieu thereof the following:
"(a)(i) Prior to the first anniversary of the Closing, Cyanamid
shall change its corporate name and shall omit therefrom the word
"Cyanamid" (it being understood and agreed by the parties that,
during the period prior to which Cyanamid has changed its name in
such manner, Cyanamid shall not, except as otherwise agreed by the
parties, publicly use such name to engage in any commercial
activity in the marketplace); (ii) following the Closing, after
consulting with Sellers and taking into account each party's
intellectual property registration and other permit issues, Buyer
may, upon not less than 45 days' written notice (or longer if
required by Applicable Laws), require that any specified Seller or
Affiliate of Sellers change its corporate name to delete any
reference or confusingly similar resemblance, in whole or in part,
to "Cyanamid" or "Cy"; and (iii) prior to Closing, Sellers shall
be permitted to change the corporate name of any of the Companies
to delete any reference to "AHP", "American Home Products", "Fort
Dodge", "Wyeth", "Lederle" or any similar names."
12. The Agreement is hereby amended by inserting the following
language at the end of Section 7.5(a)(iv):
"Notwithstanding the foregoing, Buyer shall pay any such Taxes as
set forth in Section 10 of the First Amendment to the extent
related to the transactions described in Items A, C and D of Annex
I of the First Amendment and Sellers shall pay any such Taxes as
set forth in Section 10 of the First Amendment to the extent
related to the transactions described in Item E of Annex I of the
First Amendment."
13. The Agreement is hereby amended by inserting the following
language at the end of Section 7.5(e):
"In the case of [***] and [***], if and to the extent that the
[***] Income Tax owed in the Straddle Period is lower than the
[***] Income Tax caused by the sale of the intangible assets
described in Item A of Annex I attached to the First Amendment,
Buyer will pay 100% of such difference in Tax irrespective of
whether this reduction is caused by any action outside the
ordinary course of business by the Buyer; however, in the event
that either [***] or [***], incurs a Tax loss (other than from the
sale of intangibles) in the pre-Closing Straddle Period, Buyer
shall reimburse Seller for the Taxes that would be paid on the net
income (including from the sale of intangibles) earned during the
pre-Closing Straddle Period for such Company."
14. The Agreement is hereby amended by inserting a new Section 7.5(h)
as follows:
"(h) Any additional Tax assessed by the [***] Tax Authorities on
the sale of intangible assets by either [***] or [***] shall be
paid by Buyer."
15. The Agreement is hereby amended by inserting a new Section 7.13 as
follows:
"SECTION 7.13. COLLECTION OF ACCOUNTS RECEIVABLE.
Sellers agree that if, after the Closing Date (or the date of a
Delayed Closing, if applicable), Sellers or any Asset Transferor
Entity receive any cash payments made by customers relating to
accounts receivable included in the Closing Statement, such cash
payments will be remitted promptly to a bank account designated by
Buyer or its designee without offset or deduction, except to the
extent otherwise required by Applicable Laws."
16. The Agreement is hereby amended by inserting a new Section 7.14 as
follows:
"SECTION 7.14. CERTAIN PENSION LIABILITIES.
Seller covenants and guarantees that the calculation of the
pension liabilities recorded on the books of [***] as of the
Closing Date will be in accordance with the Statement of Financial
Accounting Standards No. 87 using the Projected Unit Credit
Method. For the FAS
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separately filed with the Commission.
calculation, the actuarial assumptions to be used will be
consistent with the assumptions described in the report of Towers
Perrin as of November 30, 1999.
17. With respect to product liability matters, the Agreement is hereby
amended as follows:
(i) by deleting Section 11.1(a)(iv) in its entirety and
substituting in lieu thereof the following:
"product liability litigation (which shall be deemed to
include, without limitation, the litigation identified by
asterisks in Annex II to this First Amendment (the
"Scheduled PL Litigation") and any other litigation alleging
crop damage, lack of efficacy or inadequate efficacy, drift
damage, yield reduction, carry-over damage, personal injury
and property damage) with respect to products of the
Business shipped prior to the Closing Date ("the Product
Liability Litigation");"
(ii) by inserting the following language on the fourteenth line
of Section 11.3 immediately preceding the sentence beginning
with the word "Notwithstanding":
"Notwithstanding anything to the contrary contained herein,
with respect to each individual matter of Product Liability
Litigation (other than Scheduled PL Litigation) for which
indemnification may be sought under Section 11.1(a)(iv)(a
"PL Matter")(it being understood and agreed that an
Aggrieved Party shall be entitled to recover all Costs
arising out of or related to all Scheduled PL Litigation
without regard to any limitations set forth in this Section
11.3):
(a) notice under Section 11.2 hereof need not be given prior to
the commencement of such PL Matter (it being understood and
agreed that any PL Matter commenced against Sellers or their
Affiliates will, for purposes solely of triggering the
obligation to comply with the notice provisions hereof and
for no other purpose whatsoever, be deemed upon notice to
Buyer to have been commenced against Buyer);
(b) if such PL Matter is not pled as a class action, an
Aggrieved Party shall not be entitled to recover any Costs
related thereto unless and until either:
(x) the amount of such Costs suffered by the Aggrieved
Party shall exceed [***], at which time the
indemnification provided under Section 11.1(a)(iv) shall
apply to all such Costs in excess of [***]; or
(y) the Aggrieved Party shall have incurred aggregate
Costs, not recoverable by the Aggrieved Party as a
result of the limitation in subsection (x) above, of
[***] relating to any and all PL Matters (other than PL
Matters that are pled as class actions), at which time
the Aggrieved Party shall be entitled to seek
indemnification from Sellers for all such Costs in
excess of [***]; and
(c) if such PL Matter is pled as a class action, an Aggrieved
Party shall not be entitled to recover any Costs related
thereto unless and until either:
(x) the amount of such Costs suffered by the Aggrieved
Party shall exceed [***], at which time the
indemnification provided under Section 11.1(a)(iv) shall
apply to all such Costs in excess of [***]; or
(y) the Aggrieved Party shall have incurred aggregate
Costs, not recoverable by the Aggrieved Party as a
result of the limitation in subsection (x) above, of
[***] relating to any and all PL Matters that are pled
as a class action, at which time the Aggrieved Party
shall be entitled to seek indemnification from Sellers
for all such Costs in excess of [***]."
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
18. The Agreement is hereby amended by deleting in its entirety clause
(g) of subsection (xiv) on Exhibit B to the Agreement.
19. The Agreement is hereby amended by deleting the following words
from the last sentence of Section 9.3(b)(ii): "from Manchester
Fast Track Outplacement".
20. The Agreement is hereby amended by inserting a new Section 7.15 as
follows:
"7.15 PRINCETON LEASE AND OPTION
(a) In connection with the transactions contemplated by this
Agreement, the parties intend that, at Closing, Buyer's
subsidiary, BASF Corporation, shall be assigned the interest
of Crop Protection Division of Cyanamid in a Ground Lease
Agreement with Cyanamid dated February 1, 2000 (as amended)
("Princeton Ground Lease"), which provides that the lessee
may exercise an option to purchase the leased lands on terms
set forth therein.
(b) In the event that BASF Corporation later exercises the option
to purchase the leased premises described in the Princeton
Ground Lease, the parties agree that such premises shall,
upon closing of such purchase, be deemed to have been Owned
Real Property that, on the Closing Date, had been purchased
by Buyer (through its subsidiary) for all purposes of this
Agreement, including the indemnity provisions herein.
21. The Agreement is hereby amended by inserting a new Section 9.4(h)
as follows:
"(h) U.S. Employees shall remain covered as participants under the
AHPC dependent care spending account plan and the AHPC dental and
vision care spending account plan (the "AHPC Spending Account
Plans") up to the Closing Date. U.S. Employees shall be eligible
to enroll and become participants in the BASF dependent care
spending account plan and the BASF medical spending account plan
(the "BASF Spending Account Plans") as of the Closing Date.
Eligible expenses incurred by a U.S. Employee prior to the Closing
Date may be submitted for reimbursement under the AHPC Spending
Account Plans for a period of 90 days following the Closing Date,
after which the
remaining balance in each plan account for each U.S. Employee
shall be transferred to and assumed by BASF under the BASF
Spending Account Plans; provided, however, that the balance in the
AHPC Spending Account Plans of any U.S. Employee who does not
elect to participate in the corresponding plan of the BASF
Spending Account Plans shall be retained by AHPC and the affected
U.S. Employees shall be eligible to continue participation in the
AHPC dental and vision care spending account plan by electing
COBRA coverage."
22. Section 11.1(h) of the Agreement is hereby amended by deleting the
words "Sellers and their Affiliates" from the fourth line thereof
and substituting in their place the words "[***] and its
Affiliates."
23. Section 3.2(f) of the Agreement is hereby amended by inserting on
the third line after the words "Assumed Liabilities" the following
parenthetical:
"(it being understood by the parties that, to the extent any of
the terms or provisions of such instruments of assumption and
other certificates, instruments or documents violate or are in any
manner inconsistent with any of the terms or conditions of the
Agreement, the terms or conditions of the Agreement shall govern,
apply and take precedence in all respects over such violative or
inconsistent terms or conditions)".
24. The Agreement is hereby amended by inserting the following
language in each of Section 3.3(f) of the Agreement, on the fourth
line after the words "its Affiliates" and in Section 3.3(h) at the
end thereof, the following parenthetical:
"(it being understood by the parties that, to the extent any of
the terms or provisions of such bills of sale, deeds or other
instruments of sale and conveyance violate or are in any manner
inconsistent with any of the terms or conditions of the Agreement,
the terms or conditions of the Agreement shall govern, apply and
take precedence in all respects over such violative or
inconsistent terms or conditions)".
25. The Agreement is hereby amended by inserting a new Section
9.3(b)(iii) as follows, and renumbering the
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
current Sections 9.3(b)(iii), (iv) and (v) as Sections 9.3(b)(iv),
(v) and (vi), respectively:
"(iii) Buyer hereby agrees to expressly assume and perform,
through its designated Affiliate(s), AHP's duties and obligations
as the "Plan Sponsor" and "Administrator" (as the foregoing terms
are defined in ERISA) for the Statement of Policy on Separation
Benefits Following a change in control of the Agricultural
Products Business of American Home Products Corporation (the
"Statement of Policy on Separation") with respect to all benefits
described in the Statement of Policy on Separation, effective as
of the Closing Date with respect to U.S. Employees; provided,
however, that with respect to the "Other Benefits" set forth in
Section III and "AHPC Stock Options" set forth in Section IV of
the Statement of Policy on Separation, Buyer shall not assume
AHP's duties and obligations and AHP shall continue to serve as
Administrator and Plan Sponsor of the employee benefit plans set
forth in Section III and shall continue to have complete
responsibility and authority with respect to the administration of
its stock option program."
26. Section 1.72 of the Agreement is hereby amended by deleting
therefrom the words: "the related agreements" and substituting
therefor the words: "the agreements concluded pursuant to such
Framework Agreement, including, without limitation, the
agreements".
27. The Agreement is hereby amended by inserting the following
language at the end of Section 3.6(a):
"For purposes of clarity, the adjustment in the pension accrual
recorded on the books of [***] relating to active employees of
[***] based on the actuarial valuation as of November 30, 1999
will be accounted for in such a manner as to not impact the
adjustment to the Purchase Price provided for in Section 3.6(a) of
the Agreement."
28. The Agreement is hereby amended by deleting the dollar amount
which is defined as Base Net Asset Value in Section 3.6(a) thereof
and substituting in its place the amount of [***] which amount
shall constitute the Base Net Asset Value as such term is used in
the Agreement.
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[***] Confidential treatment requested and the redacted material has been
separately filed with the Commission.
29. Buyer hereby confirms that the Tier I Agreements and the Tier II
Agreements referred to in Section 9.1(h) of the Agreement are
Assumed Contracts and that Buyer, directly or through an
Affiliate, hereby expressly assumes and agrees to perform, without
reimbursement, offset or other compensation from Sellers and their
Affiliates, the duties and obligations of the Sellers under each
such agreement, including, without limitation, the obligations
under Section 4(iv)(D) thereof.
30. This First Amendment shall be governed in all respects, including
validity, interpretation and effect, by the internal laws of the
State of New York.
31. The parties hereto agree that the U.S. District Court for the
Southern District of New York shall have exclusive jurisdiction
over any dispute or controversy arising out of or in relation to
this First Amendment and any judgment, determination, arbitration
award, finding or conclusion reached or rendered in any other
jurisdiction shall be null and void between the parties hereto.
Each of the parties waives any defense of inconvenient forum to
the maintenance of any action or proceeding so brought and waives
any bond, surety, or other security that might be required of any
other party with respect thereto.
32. This First Amendment may be executed in one or more counterparts
which together shall constitute a single agreement. If any
provisions of this First Amendment shall be held to be illegal,
invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire First
Amendment. Such provision shall be deemed to be modified to the
extent necessary to render it legal, valid and enforceable, and if
no such modification shall render it legal, valid and enforceable,
then this First Amendment shall be construed as if not containing
the provision held to be invalid, and the rights and obligations
of the parties shall be construed and enforced accordingly.
33. This First Amendment constitutes an amendment to the Agreement
pursuant to Section 12.4 of the Agreement. Except as expressly
amended by this First Amendment, each and every provision of the
Agreement remains in full force and effect in accordance with the
terms thereof and, by reference, the terms and provisions of the
Agreement are incorporated herein and made a part hereof.
IN WITNESS WHEREOF, the First Amendment has been signed by each of the
parties hereto as of the date provided above.
AMERICAN CYANAMID COMPANY
By: /s/ Thomas M. Nee
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Name: Thomas M. Nee
Title: Vice President
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ John B. Adams
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Name: John B. Adams
Title: Vice President
BASF AKTIENGESELLSCHAFT
By: /s/ Dr. Thomas Becker
--------------------------------
Name: Dr. Thomas Becker
Title: Director, Legal
BASF AKTIENGESELLSCHAFT
By: /s/ Wolfgang Paulus
--------------------------------
Name: Wolfgang Paulus
Title: Director, Finance
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Current Report to be signed on its behalf by
the undersigned, thereunto duly authorized.
BASF Aktiengesellschaft
Date: July 25, 2000 By: /s/ Dr. Felix Gress
Name: Dr. Felix Gress
Title: Director Communications
BASF Group
By: /s/ Kurt Leidner
Name: Kurt Leidner
Title: Director Communications
Ludwigshafen Site