Exhibit 10.1
PORTIONS OF THIS EXHIBIT INDICATED BY "******" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED, AND THE OMITTED MATERIAL HAS BEEN SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION
AMENDMENT TO SHARE AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO SHARE AND ASSET PURCHASE AGREEMENT (this
"Amendment"), dated as of August 22, 2006, is entered into by and between
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SOLUTIA EUROPE S.A./N.V., a Belgian corporation (societe anonyme/naamloze
vennootschap) (the "Seller") and DISHMAN PHARMACEUTICALS & CHEMICALS LIMITED,
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a company organized under the laws of the Republic of India (the "Buyer").
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WHEREAS, the Seller and the Buyer have entered into that certain
Share and Asset Purchase Agreement dated as of May 23, 2006 (the "Purchase
--------
Agreement") pursuant to which the Buyer has agreed to purchase the outstanding
- ---------
shares of capital stock of Amcis AG ("Amcis") and CarboGen AG ("CarboGen") and
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certain other assets of the Seller and its Affiliates;
WHEREAS, as contemplated in Section 5.4(e) of the Purchase Agreement
CarboGen merged into Amcis with the surviving entity being CARBOGEN AMCIS AG;
and
WHEREAS, the parties hereto desire to amend the Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and the
covenants, representations and warranties set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and accepted; the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
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shall have their respective meanings assigned in the Purchase Agreement.
2. NEW DEFINITIONS. Section 1.1 of the Purchase Agreement is hereby
---------------
amended by adding the following new definitions in their proper alphabetical
order:
"CarboGen Amcis" means CARBOGEN AMCIS AG, a company
--------------
organized under the laws of Switzerland and a
successor-in-interest (by merger) to CarboGen and Amcis.
"Effective Time" means 00:01 a.m. on August 1, 2006
--------------
in Brussels, Belgium.
"Interim Period" means a period commencing at the
--------------
Effective Time and ending at the Closing Time.
"Reimbursement Costs" means the following (without
-------------------
duplication):
(i) all liabilities incurred with
respect to any Transferred
Employee, any person who would
have been a Transferred Employee
if the Closing had occurred at
the Effective Time and Specified
Employee who is employed after
the Effective Time (collectively,
the "Employees"), such
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liabilities to include, without
limitation, salary and
other cash compensation, income
and employment tax withholdings,
the cost of all employee benefits
(including, without limitation,
matching and other employer
contributions to any retirement
plan, severance benefits, the
costs of providing health and
other welfare benefits, and
fringe benefits), automobile
allowances, business expenses
(including travel expenses),
liabilities incurred under any
labor or employment law, workers'
compensation costs, and the
proportional share of office
expenses (as reasonably
determined by the Seller), in
each case incurred by Seller or
any of its Affiliates (other than
CarboGen Amcis) with respect to
the Employees with respect to the
Interim Period;
(ii) the aggregate amount to be paid
by Seller and its affiliates
(other than CarboGen Amcis)
pursuant to Section 5.11(h);
(iii) the aggregate amount of the Fees
(as defined in the Transition
Services Agreement) that would
have been payable pursuant to the
Transition Services Agreement
with respect to the Interim
Period had the Seller commenced
provision of Services (as defined
therein) thereunder on August 1,
2006;
(iv) all amounts paid or payable by
Seller or any of its Affiliates
(other than CarboGen Amcis) with
respect to any Assumed Contract
(including Microsoft Licenses and
licenses with Saratoga, in each
case that are Transferred Assets)
and other Transferred Assets with
respect to the Interim Period;
(v) $7,155.52, which amount
represents the pro rata amount
paid by Seller and its Affiliates
with respect to licenses pursuant
to certain Oracle License and
Services Agreement between Oracle
Corporate and SOI, dated as of
May 10, 2004 that are Transferred
Assets with respect to the period
from August 1, 2006 through May
12, 2007;
(vi) a portion of insurance premiums
paid by Seller and its Affiliates
(other than CarboGen Amcis) with
respect to insurance policies
applicable to CarboGen Amcis
during the period from August 1,
2006 through August 22, 2006; and
(vii) all other expenses (including
capital investment) of the Seller
or any of its Affiliates incurred
with respect to the
Interim Period with respect to
the Shares, the Business, the
Transferred Assets, the US
Business and Employees
"****** Specified Employee" means ****** set forth
----------------------
in Part II of Schedule 1.5 of the Disclosure Schedule.
"UK Specified Employees" means the individuals set
----------------------
forth in Part I of Schedule 1.5 of the Disclosure Schedule.
"US Business" means the business of SOI consisting
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solely of the services to be performed by US Business
Employees, the employment agreements of such US Business
Employees and the assets held by or in the name of SOI set
forth in Schedule 1.3 of the Disclosure Schedule.
------------
3. NEW DEFINITIONAL CROSS REFERENCES. Section 1.2 of the Purchase
---------------------------------
Agreement is hereby amended by adding the following cross-references for
definitions in their proper alphabetical order:
Additional Dividend Amount 2.5(b)(i)(A)
Cash Dividend Amount 5.4(b)
CS Loan Agreement 5.4(c)
Effective Time Cash Balance 5.4(b)
Employee 1.1
Estimated Reimbursement Costs 2.4(f)(i)
Final Reimbursement Costs 2.4(f)(ii)
Social Security Payment 5.11(a)(iv)
4. CLOSING TIME. The definition of "Closing Time" in Section 1.1 of
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the Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
"Closing Time" means 00:01 a.m. on the Closing Date
------------
in Brussels, Belgium.
5. FINAL WORKING CAPITAL STATEMENT. The definition of "Final Working
-------------------------------
Capital Statement" in Section 1.1 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
"Final Working Capital Statement" means the net
-------------------------------
working capital statement that sets forth the Working
Capital as of the Effective Time, prepared by the Seller in
accordance with Section 2.4(b) and, in the event of a Notice
of
Disagreement, as adjusted by agreement of the Buyer and the
Seller, or by the Independent Accounting Firm, acting
pursuant to Section 2.4(c).
6. MICROSOFT LICENSES. The definition of "Microsoft Licenses" in
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Section 1.1 of the Purchase Agreement is hereby amended and restated in its
entirety as follows:
"Microsoft Licenses" means the license
------------------
confirmations (and the following licenses described therein)
held by SOI and its Affiliates pursuant to the Microsoft
Enterprise Agreement, Number OIE50326 between SOI and MLSI,
GP, dated December 5, 2000, in each case to the extent such
licenses are used in the Business: (i) 390 Microsoft Desktop
Professional Licenses, (ii) 6 Microsoft Windows Server
Licenses, and (iii) 3 Microsoft Exchange Server Enterprise
licenses.
7. PRE-CLOSING WORKING CAPITAL STATEMENT. The definition of
-------------------------------------
"Pre-Closing Working Capital Statement" in Section 1.1 of the Purchase
Agreement is hereby amended and restated in its entirety as follows:
"Pre-Closing Working Capital Statement" means the
-------------------------------------
net working capital statement that sets forth the Seller's
estimate of the Working Capital as of the Effective Time,
prepared by the Seller in accordance with Section 2.4(a).
8. WORKING CAPITAL. The definition of "Working Capital" in Section
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1.1 of the Purchase Agreement is hereby amended by (i) deleting the word "and"
after clause (iii) hereof and (ii) adding the following new clause (v) after
clause (iv) thereof:
and (v) any payables or accruals in connection with the
Social Security Payment by CarboGen Amcis described in the
second to last sentence of Section 5.11(a)(vi).
9. AUSTRALIAN CONTRACTS. The Purchase Agreement is hereby amended by
--------------------
adding the following new Section 2.2(d) after Section 2.2(c) of the Purchase
Agreement:
(d) notwithstanding the foregoing, the
Australian Contracts that are Transferred Assets shall be
sold, transferred and assigned to CarboGen Amcis prior to
the Closing and CarboGen Amcis shall assume and agree to
pay, perform and discharge all Assumed Liabilities with
respect to such Transferred Assets. From and after the
Closing the Buyer shall cause CarboGen Amcis to pay, perform
and discharge such Assumed Liabilities.
10. SECTION 2.2(b). Section 2.2(b) of the Purchase Agreement is
--------------
hereby amended and restated as follows:
(b) subject to requirements of Section
5.11, the Buyer shall, and shall cause its applicable
Affiliates to, assume and shall, and shall cause such
Affiliates to, agree to pay, perform and discharge all
liabilities and obligations (whether accrued or fixed,
absolute or contingent, mature or unmatured or determined or
determinable) (the "Liabilities") arising after the
-----------
Effective Time
with respect to the Transferred Assets, other than (i) with
respect to Assumed Contracts that are not employment
agreements, liabilities that result from any breach by the
Seller or its Affiliates of such Assumed Contracts prior to
the Effective Time, and (ii) with respect to Assumed
Contracts that are employment agreements, liabilities, if
any, retained by the Seller or any of its Affiliates
pursuant to Section 5.11 and not required to be indemnified
by the Buyer pursuant to Section 6.03 (such Liabilities with
respect to the Transferred Assets to be assumed by the Buyer
pursuant to this Section 2.2(b), the "Assumed Liabilities");
-------------------
11. SECTION 2.4. Section 2.4 of the Purchase Agreement is hereby
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amended as follows:
(a) The heading to Section 2.4 is hereby amended and
restated as follows:
"Working Capital Adjustment/Reimbursement Costs."
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(b) Section 2.4(a) of the Purchase Agreement is hereby
amended by deleting the reference to "five Business Days" in the
first sentence thereof and replacing such reference with a reference
to "two Business Days".
(c) Section 2.4 of the Purchase Agreement is hereby amended
by inserting the following new Section 2.4(f) after the existing
Section 2.4(e):
(f) Reimbursement Costs.
-------------------
(i) No later than two Business Days prior
to the Closing, the Seller shall prepare and
deliver to the Buyer a good faith estimate of the
Reimbursement Costs that have not been reimbursed
by the Buyer or its Affiliates (including CarboGen
Amcis) to Seller or its Affiliates (other than
CarboGen Amcis) prior to Closing (the "Estimated
---------
Reimbursement Costs").
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(ii) Within thirty (30) days following the
Closing Date, the Seller shall deliver to the Buyer
an invoice setting forth the actual Reimbursement
Costs and documentations reasonably evidencing such
Reimbursement Costs that have not been reimbursed
by the Buyer or its Affiliates (including CarboGen
Amcis) to Seller or its Affiliates (other than
CarboGen Amcis) (the "Final Reimbursement Costs").
-------------------------
(iii) Within seven (7) Business Days after
receipt of the Final Reimbursement Costs, the
following amounts, if any, shall be paid by wire
transfer of U.S. Dollars in immediately available
funds to such account or accounts as may be
designated in writing by the party hereto entitled
to such payment at least five Business Days prior
to such payment date:
(A) if the Final Reimbursement
Costs exceed the Estimated Reimbursement
Costs, the Buyer shall pay to the Seller
an amount equal to such excess; and
(B) if the Estimated Reimbursement
Costs exceed the Final Reimbursement
Costs, the Seller shall pay to the Buyer
an amount equal to such excess.
(iv) All amounts to be paid pursuant to
Section 2.4(f)(iii) shall bear interest from the
Closing Date to the date of such payment at a rate
equal to LIBOR Rate on the date of payment, which
interest shall be payable by wire transfer of U.S.
Dollars by the party making the payment pursuant to
Section 2.4(f)(iii) concurrently with such payment.
(v) In the event there is any dispute
between the Seller and the Buyer with respect to
the Final Reimbursement Costs and such dispute is
not resolved within seven (7) days after the
delivery by Seller of the Final Reimbursement Costs
pursuant to Section 2.4(f)(ii), such dispute shall
be resolved by the Independent Accounting Firm as
set forth in Section 2.4(c) as if the amount in
dispute was the Final Working Capital Value and
payments to be made, if any, pursuant to Section
2.4(f)(iii), notwithstanding any provision to the
contrary in Section 2.4(f)(iii), shall be made
within three Business Days after the final
resolution of all such disputes.
12. SECTION 2.5(a). Section 2.5(a) of the Purchase Agreement is
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hereby amended by deleting the words "Gibson, Dunn & Crutcher LLP, 47 Avenue
des Perdix, 1410 Waterloo, Brussels, Belgium" and adding the words "Gibson,
Dunn & Crutcher LLP, Avenue Louise 480, 1050 Brussels, Belgium, Brussels,
Belgium" in lieu thereof.
13. SECTION 2.5(b)(i). Section 2.5(b)(i) of the Purchase Agreement is
-----------------
hereby amended and restated in its entirety to read as follows:
(i) the Buyer shall deliver to the Seller an amount equal to
the sum of the following amounts in immediately available
funds in U.S. Dollars by wire transfer to a bank account
designated in writing by the Seller to the Buyer at least
five Business Days prior to the Closing Date:
(A) an amount equal to the Estimated Purchase
Price minus $1,330,026 (the "Additional
----------
Dividend Amount");
---------------
(B) $296,000 as additional purchase price; and
(C) the Estimated Reimbursement Costs.
14. SECTIONS 2.5(b)(vi) AND (vii). Sections 2.5(b)(vi) and (vii) of
-----------------------------
the Purchase Agreement are hereby amended and restated in their entirety to
read as follows:
(vi) the Buyer shall deliver to the Seller
evidence, reasonably satisfactory to the Seller, that each
of the signatories of the Buyer and each of its relevant
Affiliates is authorized to execute, deliver and perform
this Agreement
and the Ancillary Agreements executed or to be executed by
the Buyer or any Affiliate of the Buyer;
(vii) the Seller shall deliver to the Buyer
evidence, reasonably satisfactory to the Buyer, that each of
the relevant Affiliates of the Seller, as applicable, is
authorized to execute, deliver and perform this Agreement
and the Ancillary Agreements executed or to be executed by
the Seller and such Affiliates of the Seller; and
15. SECTION 2.5(c). Section 2.5(c) of the Purchase Agreement is
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hereby amended and restated in its entirety to read as follows:
(c) The economic benefit (Nutzen) and the risk
(Gefahr) with regard to the Shares and the Transferred
Assets and the Business shall be for the Buyer as of and
after the Effective Time. The Buyer shall assume the Assumed
Liabilities on the Closing Date as set forth in Sections
2.2(a) and (b) and (ii) the Buyer shall indemnify the Seller
with respect to (i) all liabilities with respect to the
Shares, the Business and the US Business with respect to the
Interim Period as set forth in Section 6.3(f) and (ii) all
Assumed Liabilities.
16. SECTION 3.20(a). Section 3.20(a) of the Purchase Agreement is
---------------
hereby amended by deleting "." at the end of such section and adding the
following proviso at the end of thereof:
provided, however, that the rights, title and interest of
-------- -------
Solutia Australia PTY Limited in and to the Australian
Contracts that are Transferred Assets will be sold,
transferred and assigned to CarboGen Amcis prior to the
Closing.
17. SECTION 5.1. The last paragraph of Section 5.1 is hereby amended
-----------
by deleting "or" before clause (e), deleting "." at the end of clause (e) and
adding the following at the end thereof:
and (f) the entry into an amendment to the Specified
Employment Agreement of the ****** Specified Employee
mutually acceptable to the Buyer, the Seller and the ******
Specified Employee.
Notwithstanding any provision to the contrary in this
Agreement or any Ancillary Agreement, Seller shall have no
liability for breach of any representation, warranty or
covenant in this Agreement or any Ancillary Agreement or any
other liability to the extent such liability arises out
actions or omission of any employee of Seller or any of its
Affiliates, including CarboGen Amcis, taken or omitted to be
taken at the instruction or request of the Buyer and Buyer
shall indemnify, hold harmless against and reimburse Seller
for all Damages incurred by the Seller as a result of any
such actions or omissions.
18. SECTION 5.4(b). Section 5.4(b) is hereby amended and restated in
--------------
its entirety to read as follows:
(b) Immediately prior to the Closing, CarboGen
Amcis shall transfer
(through a dividend or by other means) to the Seller or one
or more of its Affiliates (other than CarboGen Amcis), an
amount (the "Cash Dividend Amount") equal to (i) the amount
--------------------
of cash or cash equivalents of the Swiss Companies at the
Effective Time (the "Effective Time Cash Balance"), PLUS
---------------------------
(ii) $1,215,268, which represents all amounts (including
principal, interest and other charges, if any) that would
have been payable to CarboGen Amcis by the Seller or any of
its Affiliates (other than CarboGen Amcis) in satisfaction
of any debt or other obligation of the Seller or any of its
Affiliates (other than CarboGen Amcis) to CarboGen Amcis
pursuant to Section 5.4(a) had such amounts been paid
immediately prior to the Effective Time, MINUS (iii)
$4,486,588, which represents all amounts (including
principal, interest and other charges, if any) that would
have been payable by CarboGen Amcis to its Affiliates in
satisfaction of any debt or any other obligation of CarboGen
Amcis to its Affiliates pursuant to Section 5.4(a) had such
amounts been paid immediately prior to the Effective Time,
PLUS (iv) the Additional Dividend Amount.
19. SECTION 5.4(c). Section 5.4(c) of the Purchase Agreement is
--------------
hereby amended and restated in its entirety to read as follows:
(c) On or prior to the Closing the Seller
shall satisfy in full or otherwise discharge all Third-Party
Debt (other than (i) that certain Loan Agreement dated
October 29, 2001 between Amcis (as predecessor in interest
to CarboGen Amcis) and Credit Suisse (as amended by that
certain letter from Credit Suisse dated October 18, 2004,
the "CS Loan Agreement"), (ii) that certain Letter of
-----------------
Indemnity, No. 0445-20465, in the amount of CHF 17,000
issued by Amcis to Credit Suisse, and the related Bank
Guarantee, (iii) that certain Bank Guarantee Nr. 0446-20631
issued by Credit Suisse in favor of Flint AG in the amount
of CHF 1,500,000.--, (iv) that certain Letter of Indemnity
No. 0446-20631 dated July 19, 2001 by Amcis for the benefit
of the Credit Suisse in the amount of CHF 1,500,000.-- made
in connection with the Bank Guarantee by Credit Suisse in
favor of Flint AG, each as amended, restated and otherwise
modified from time to time in accordance therewith).
20. SECTION 5.9. Section 5.9 of the Purchase Agreement is hereby
-----------
amended by adding the following language at the end of such section:
In all events, the Buyer shall provide to the Seller a
release, in form and substance reasonably satisfactory to
the Seller, releasing SOI from its obligations under that
certain CS Guarantee (the "Release"), no later than
-------
September 30, 2006. In no event shall SOI or any of its
Affiliates have any liability to the Buyer with respect to
the CS Guarantee and the Buyer, on its own behalf and on
behalf of its Affiliates (including, after the Closing,
CarboGen Amcis) hereby waives any claims against SOI and/or
its Affiliates with respect to the CS Guarantee. All
indemnities set forth in Section 6.3(e) are independent
indemnities within the meaning of Article 111 of the Swiss
Code of Obligations and such indemnities are not limited,
neither in time, amount or otherwise.
From and after the Closing the Buyer shall ensure that no
borrowings, advances or other extensions of credit
(including any letters of credits and similar instruments)
are made under the CS Loan Agreement until such time as the
Seller receives the Release. As promptly after the Closing,
but in no event later than ten (10) Business Days after the
Closing, the Buyer shall enter into an amendment to the CS
Loan Agreement with Credit Suisse, in form and substance
satisfactory to the Seller, to reflect that: (i) the
aggregate commitment amount under the CS Loan Agreement
shall be reduced to CHF 1,517,000.--., (ii) no further
borrowings, advances or other extensions of credit
(including any letters of credits and similar instruments)
shall be permitted pursuant to the CS Loan Agreement until
the Seller shall have received the Release, (iii) no further
amendments or modifications to the CS Loan Agreement shall
be permitted without written consent of SOI or Seller until
and unless the Seller shall have received the Release, and
(iv) SOI and the Seller shall be third party beneficiaries
of such amendment. The Buyer shall deliver an original of
such amendment to the Seller within than ten (10) Business
Days after the Closing.
21. SECTION 5.11(a)(i). The last sentence of Section 5.11(a)(i) of
------------------
the Purchase Agreement is hereby amended and restated in its entirety to reads
as follows:
For purposes of this Agreement, a "Transferred Employee
--------------------
means (x) all Swiss Business Employees and European Business
Employees, in each case except for the Specified Employees,
(y) all U.S. Business Employees and UK Specified Employees
who accept the offer of employment from the Buyer or one of
its Affiliates pursuant to Section 5.11(a)(iv) and (v) and
actually commence active employment with the Buyer or its
Affiliate on or after the Closing Date and (z) the ******
Specified Employee.
22. SECTION 5.11(a)(ii). Section 5.11(a)(ii) of the Purchase
-------------------
Agreement is hereby amended and restated in its entirety to read as follows:
(ii) Swiss Business Employees. All Swiss
------------------------
Business Employees shall remain employed by the Swiss
Companies immediately following the Closing.
23. SECTION 5.11(a)(iv). Section 5.11(a)(iv) of the Purchase
-------------------
Agreement is hereby amended and restated in its entirety as follows:
(iv) The Seller shall, or shall cause one
of its Affiliates to, terminate the Specified Employment
Agreements with the UK Specified Employees (or obtain
resignation of the UK Specified Employees) immediately prior
to Closing; provided that the UK Specified Employees shall
--------
have accepted offers of employment from the Buyer and its
Affiliates at the latest immediately prior to Closing with
terms of employment specified on Schedule 5.11(a)(iv) of the
--------------------
Disclosure Schedule or on such other terms to which such
Specified Employees may agree. Immediately after the Closing
the Buyer shall cause CarboGen Amcis to ratify an amendment
to the Specified Employment
Agreement with the ***** Specified Employee entered into on
or about August 11, 2006.
24. SECTION 5.11(a)(vi). The proviso in the last sentence of Section
-------------------
5.11(a)(vi) of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows and the following additional sentence is hereby
added to at the end of such Section 5.11(a)(vi):
provided, however that (i) the Buyer shall in all events be
-------- -------
solely responsible for any severance-type payments (whether
under the Specified Employment Agreements or otherwise) with
respect to any Specified Employee and (ii) subject to the
next sentence of this Section 5.11(a)(vi), the Buyer shall
cause CarboGen Amcis to pay the Social Security
Contributions to be paid in connection with the payments to
the ****** Specified Employee of the ****** (as described in
Section 5 of the ****** Specified Employee Agreement as in
effect prior to Closing) and the amount of the ******
described in Section 6 of such agreement (the "Social
------
Security Payment"). After the Buyer provides evidence of
----------------
the payment of such Social Security Contributions reasonably
satisfactory to the Seller, the Seller shall promptly
reimburse the Buyer for the amount so paid.
25. SECTION 5.11(h). Section 5.11 of the Purchase Agreement is hereby
---------------
amended by adding the new Section 5.11(h):
(h) Initial Wage Payment. Notwithstanding
--------------------
any provision to the contrary in this Section 5.11, on or
prior to August 31, 2006, the Seller shall pay, or shall
cause to be paid, to Transferred Employees (other than Swiss
Business Employees) all wages, compensation and other
benefits due and payable to such Transferred Employees by
Seller and its Affiliates or the Buyer and its Affiliates
with respect to the period from August 1, 2006 until August
31, 2006, which amount shall in no event exceed $150,000 in
the aggregate; provided, that the Buyer shall have
reimbursed the Seller and its Affiliates therefore in full
as set forth in Section 2.4(f).
26. SECTION 5.12. Section 5.12 of the Purchase Agreement is hereby
------------
amended by adding the following new sentence at the end of Section 5.12:
Notwithstanding the foregoing, the Australian Contracts that
are Transferred Assets shall be sold, transferred and
assigned to CarboGen Amcis prior to the Closing and CarboGen
Amcis shall assume and shall agree to pay, perform and
discharge all Assumed Liabilities with respect to such
Transferred Assets. From and after the Closing the Buyer
shall cause CarboGen Amcis to pay, perform and discharge
such Assumed Liabilities.
27. SECTION 5.16. The Purchase Agreement is hereby amended by adding
------------
the following new Section 5.16 after Section 5.15 of the Purchase Agreement:
Section 5.16 Directors' Release. As soon as
------------------
practicable after the Closing the Buyer shall cause the
shareholders of CarboGen Amcis to hold a shareholders
meeting and approve a resolution granting each of the
directors of CarboGen
Amcis, who resigned in connection with the transactions
contemplated by this Agreement, a full release and discharge
with respect to such director's activities during the
current fiscal year.
28. SECTION 6.2(c). Section 6.2(c) of the Purchase Agreement is
--------------
hereby amended and restated in its entirety to read as follows:
(c) (i) with respect to any Assumed Contract that
is not an employment agreement, any breach of such Assumed
Contracts by the Seller or any of its Affiliates prior to
the Effective Time, and (ii) with respect to any Assumed
Contract that is an employment agreement, any Liabilities
with respect to such Assumed Contracts specifically retained
by the Seller pursuant to Section 5.11 and not required to
be indemnified by the Buyer pursuant to Section 6.3; or
29. SECTION 6.3. Section 6.3 of the Purchase Agreement is hereby
-----------
amended by (i) deleting "or" at the end of Section 6.3(c), (ii) amending and
restating Section 6.3(d) as follows and (iii) adding the following new
Sections 6.3(e), 6.3(f) and 6.3(g):
(d) any Action against the Seller or any of its
Affiliates arising out of, or in connection with, (i) the
termination of any Specified Employment Agreement by any
Affiliate of the Seller or (ii) the amendment to the
Specified Employment Agreement with the ****** Specified
Employee that is effective as of the Closing (including any
Action arising out of, or in connection with, the
resignation or termination of any Specified Employee or
amendment to the Specified Employment Agreement of the ******
Specified Employee, in each case in connection with the
transactions contemplated by this Agreement) (other than in
all cases with respect to amount payable by the Seller as
set forth in the last sentence of Section 5.11(a)(vi) to the
extent payable by the Seller thereunder);
(e) that certain guarantee dated as of October 10,
2001, issued by SOI for the benefit of Credit Suisse in
connection with the CS Loan Agreement;
(f) any event or occurrence, liability or claim of
any Person against the Seller or any of its Affiliates with
respect to the Shares, the Transferred Employees, the
Transferred Assets or the US Business with respect to the
Interim Period, including the following:
(i) any Damages with respect to
Employees that are incurred with respect
to the Interim Period,
(ii) all Reimbursement Costs to
the extent Seller and its Affiliates
(other than CarboGen Amcis) have not been
reimbursed by the Buyer or its Affiliates;
and
(iii) any other cost or expense or
liability arising out of or relating to
the Shares, the Business, the Transferred
Assets or the U.S. Business during the
Interim Period.
30. SECTION 7.3(a). Section 7.3(a) is hereby amended by deleting the
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words "both when made and as of the Closing Date, or in the case" and
replacing such words with the words "both when made and as of the Effective
Time (except in the case of the representations and warranties set forth in
Sections 3.1 through 3.6, 3.12, 3.15, 3.16 and 3.20(a) and (c) (the "Closing
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Time Representations")) and as of the Closing Time in the case of the Closing
- --------------------
Time Representations), provided that in the case".
31. SECTION 9.1. Section 9.1 of the Purchase Agreement is hereby
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amended by adding the following sentence at the end of such Section 9.1:
Notwithstanding the foregoing, in the event that the Buyer
requests the Seller to file or register any of the
assignment agreements with respect to any trademarks or
patents with any applicable Governmental Authority, the
Buyer shall reimburse the Seller for its out-of-pocket costs
and expenses associated therewith.
32. SCHEDULE 1.3. Schedule 1.3 of the Disclosure Schedules is hereby
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amended and restated in its entirety in the form of Exhibit A hereto.
33. SCHEDULE 1.5. The Purchase Agreement is hereby amended by adding
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after Schedule 1.4 of the Disclosure Schedule a new Schedule 1.5 of the
Disclosure Schedule in the form of Exhibit B hereto.
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34. CLOSING. The parties hereto hereby agree that notwithstanding any
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provision to the contrary in Section 2.5 of the Purchase Agreement, the
Closing shall occur on August 22, 2006.
35. DISHMAN NAME. The Buyer hereby represents and warrants that
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"Dishman Pharmaceuticals & Chemicals Ltd" and "Dishman Pharmaceuticals and
Chemicals Ltd." are Dishman Pharmaceuticals and Chemicals Limited and the
Purchase Agreement and all other documents executed and delivered by any of
the aforementioned entities shall be deemed executed and delivered by Dishman
Pharmaceuticals and Chemicals Limited and shall represent a valid, binding and
enforceable obligation of Dishman Pharmaceuticals and Chemicals Limited.
36. ASSIGNMENT. The Buyer acknowledges that it has assigned its
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rights to purchase the Shares to Dishman Pharma Solutions AG and to purchase
Transferred Assets by Dishman Pharma Solutions AG, Dishman Europe Limited and
Dishman Holland B.V. as set forth in the Bills of Sale and Assignment and
Assumption Agreements executed and delivered by such Affiliates of the Buyer
as the date hereof.
37. SOCIAL SECURITY PAYMENT. In the event the parties hereto agree on
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a mutually acceptable alternative with respect to Social Security Payment
described in paragraph 24 above, to the extent necessary the parties hereto
shall enter into an amendment to the Purchase Agreement to reflect such
alternative.
38. EFFECTIVENESS; EFFECT ON PURCHASE AGREEMENT.
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(a) This Amendment shall become effective
upon execution and delivery hereof of all parties hereto.
(b) On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement",
"herein", "hereof" or words of similar import shall mean and
be a reference to the Purchase Agreement as amended hereby.
(c) Except as specifically amended by this
Amendment, the Purchase Agreement shall remain in full force
and effect and the Purchase Agreement, as amended by this
Amendment, is hereby ratified and confirmed in all respects.
39. GOVERNING LAW. This Amendment and all disputes or controversies
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arising out of or relating to this Amendment or the transactions contemplated
hereby or thereby shall be governed by, and construed in accordance with, the
Laws of Switzerland.
40. COUNTERPARTS. This Amendment may be executed in two or more
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counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties.
41. FACSIMILE SIGNATURE. This Amendment may be executed by facsimile
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signature and a facsimile signature shall constitute an original for all
purposes.
42. HEADINGS. The descriptive headings contained in this Amendment
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are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Amendment to be executed as of the date first written above by their
respective officers thereunto duly authorized.
SOLUTIA EUROPE S.A./N.V.
By: /s/ Kristel Deroover
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Name: Kristel Deroover
Title: Proxyholder
DISHMAN PHARMACEUTICALS AND
CHEMICALS LIMITED
By: /s/ J.R. Vyas
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Name: J.R. Vyas
Title: Managing Director