Exhibit 10.2
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 an "X".
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:
- - - - - - - - - -
WHEREAS, the parties hereto have heretofore entered into the Agreement;
WHEREAS, the parties hereto have heretofore entered into the Supplemental
XXXXX 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 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) XXXXXXXX XXXXXXXXXXX XXXXXXXXX
intercompany balances with XXXXXXXXXXX XXXXXXX XXXXXXX, and (b) XXXXXXXX XXXXXXX
XXXXXXXXX XXXXXXX intercompany balances with XXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXX,
XXX XXXXXXX XXXXXXX XXXXXXX and XXXXXXX XXXXXXXXXX XXXXXXXXX.
3. In connection with the execution and delivery of the Supplemental XXXXX
Agreement (as defined below), the Agreement is hereby amended as follows:
(i) to delete from Section 1.10 the words: "the XXXXX Agreements";
(ii) to delete from Section 1.11 the words: "other than the XXXXX
Agreements";
(iii) to delete Section 1.60 thereof in its entirety and substitute in lieu
thereof the following:
"Supplemental XXXXX 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 XXXXX
Agreement.";
(v) to insert at the end of Section 1.73 the following words:
"and taking into account the modifications to such obligations effected by
the Supplemental XXXXX 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
XXXXXXXX XXXXX XXXX XXXXXXXX relating to retirees of XXXXXXXX XXXXXXXXXXXXXX
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 XXXXXXXX XXXXXXXX XXXXXXXXXXXXX representative
offices in XXXXXXXXXXX XXXXXXXX XXXXXX and XXXXXXX.
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 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 XXXXXXXX XXXXXXXXXXXXXXX XXX and XXXXXXXX XXXX XXXXXXXXXXX,
if and to the extent that the XXXXXX Income Tax owed in the Straddle Period is
lower than the XXXXXX 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 XXXXXXX XXXXXXXXXXXXXXX XXX or XXXXXXXX XXXXXXXXX XXXXXX,
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 XXXXXX Tax Authorities on the sale
of intangible assets by either XXXXXXXX XXXXXXXXXXXXXXX XXX or XXXXXXXX XXXXXXXX
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 XXXXXXXX XXXXX XXXXXXXXXXXXX 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
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
XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX, at which time the indemnification
provided under Section 11.1(a)(iv) shall apply to all such Costs in excess of
XXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX; 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 XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXX 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 XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX; 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
XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX, at which time the indemnification provided
under Section 11.1(a)(iv) shall apply to all such Costs in excess of XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX; 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 XXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXX 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
XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXX."
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 "XXXXX XXXXXXXXX XXXXXXX XXXXXXX 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 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 XXXXXXXX XXXXXXXXXXXXXXXXXXX relating to active employees of
XXXXXXXXXXXXXXXXXXXXXXX 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 XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX which amount shall
constitute the Base Net Asset Value as such term is used in the Agreement.
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.
<PAGE>
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
Name: Thomas M. Nee
Title: Vice President
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ John B. Adams
Name: John B. Adams
Title: Vice President
BASF AKTIENGESELLSCHAFT
By: /s/ Thomas Becker
Name: Thomas Becker
Title: Director, Legal
BASF AKTIENGESELLSCHAFT
By: /s/ Wolfgang Paulus
Name: Wolfgang Paulus
Title: Director, Finance
