____________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(AMENDMENT NO. 1)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Marion Merrell Dow Inc.
____________________________________________________________
(Name of issuer)
Common Stock, par value $0.10 per share
____________________________________________________________
(Title of class of securities)
569790-10-8
____________________________________________________________
(CUSIP number)
Copy to:
Harry R. Benz Roger S. Aaron, Esq.
Hoechst Corporation Skadden, Arps, Slate, Meagher & Flom
Route 202-206 919 Third Avenue
P.O. Box 2500 New York, New York 10022
Somerville, New Jersey 08876-1258
____________________________________________________________
(Name, address and telephone number of person
authorized to receive notices and communications)
June 28, 1995
____________________________________________________________
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition which is the
subject of this Schedule 13D, and is filing this schedule
because of Rule 13d-1 (b)(3) or (4), check the following box
[ ].
Check the following box if a fee is being paid with the
statement [ ].
____________________________________________________________
CUSIP NO. 569790-10-8
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Hoechst Corporation
22-1862783
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
BK, AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
196,865,790 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
71.0%
14 TYPE OF REPORTING PERSON
CO
CUSIP NO. 569790-10-8
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
H Pharma Acquisition Corp.
51-0363736
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
BK, AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 196,865,790 shares of common stock
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
196,865,790 shares of common stock
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
196,865,790 shares of common stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
71.0%
14 TYPE OF REPORTING PERSON
CO
Hoechst Corporation, a Delaware corporation
("Parent"), and H Pharma Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent
("Acquisition"), hereby amend their Statement on Schedule
13D (the "Statement") relating to the common stock, par
value $0.10 per share (the "Common Stock" or the "Shares")
of Marion Merrell Dow Inc., a Delaware corporation (the
"Company"), to the extent set forth herein. Capitalized
terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Statement.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(f) Schedule 1 to the Statement is amended by
adding thereto the information set forth on Schedule 1.1
hereto. During the past five years, to the knowledge of
Parent and Acquisition, none of the persons listed on
Schedule 1.1 has been convicted of a criminal proceeding
(excluding traffic violations or similar misdemeanors).
During the past five years, to the knowledge of Parent and
Acquisition, none of the persons listed on Schedule 1.1 has
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a
result of such proceeding been subject to a judgment, decree
or final order enjoining further violations of, or
prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect
to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The amount of funds necessary for Acquisition's
purchase of 196,865,790 Shares from Dow on June 28, 1995 (as
described below) was approximately $5.1 billion. Such funds
consisted of (i) internal corporate funds in the amount of
approximately $2.5 billion which Hoechst AG had previously
contributed as equity and (ii) borrowings in the amount of
$2.6 billion pursuant to loan agreements (the "Loan
Agreements") with two commercial banks. Copies of the Loan
Agreements are filed as Exhibits 18 and 19 hereto.
ITEM 4. PURPOSE OF THE TRANSACTION.
On June 26, 1995, the Federal Trade Commission
("FTC"), Hoechst AG, DCC and the Company entered into an
agreement (the "FTC Agreement") pursuant to which, among
other things, (i) the FTC terminated the waiting period
applicable to Parent's acquisition of the Company under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, on June 27, 1995, and agreed not to take any action
which would interfere with the consummation of the
transactions contemplated by the Stock Purchase Agreement
and the Merger Agreement, (ii) Hoechst AG and the Company
agreed to cooperate with the FTC in the completion of its
investigation by responding promptly to requests for
documents and information pursuant to the FTC's June 9th
request for additional information, (iii) DCC agreed to
cooperate with the FTC in the completion of its
investigation by responding promptly to specific requests
for documents and information and by making DCC's employees
available for investigational hearings before the FTC upon
reasonable notice, (iv) Hoechst AG and the Company agreed to
divest certain pharmaceutical products and take certain
other action in the event the FTC later concludes that the
acquisition of the Company by Hoechst AG will tend
substantially to lessen competition with respect to such
pharmaceutical products, (v) Hoechst AG agreed not to
transfer or encumber its voting securities of the Company
for a period of 30 days following substantial compliance
with the FTC's June 9th request for additional information
(the "Hold Separate Period") and (vi) Hoechst AG agreed,
subject to certain exceptions, to hold the Company separate
and apart and to operate it independently of Hoechst AG
(including not electing any affiliates of Hoechst AG to the
Board) during the Hold Separate Period. The foregoing
description of the FTC Agreement is qualified in its
entirety by reference to the text of the FTC Agreement, a
copy of which is attached hereto as Exhibit 20.
On June 28, 1995, pursuant to the Stock Purchase
Agreement, Dow sold 196,865,790 Shares to Acquisition for a
purchase price of $25.75 per Share in cash. At the closing
of the purchase and sale of such Shares, Dow granted
Acquisition irrevocable proxies (the "Proxies") with respect
to such Shares. Copies of the Proxies are filed as Exhibit
21 to the Statement.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Parent and Acquisition beneficially own an
aggregate of 196,865,790 Shares, which is the number of
Shares which Acquisition purchased from Dow pursuant to the
Stock Purchase Agreement on June 28, 1995. Such Shares
represent approximately 71.0% of the outstanding Shares as
of June 6, 1995.
(b) Acquisition has sole voting and dispositive
power with respect to 196,865,790 Shares.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
Reference is made to Item 4 of this Amendment No.
1 for descriptions of the FTC Agreement and the Proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 18. Loan Agreement, dated June 22, 1995, between
Dai-Ichi Kangyo Bank and Hoechst Corporation.
Exhibit 19. Loan Agreements, dated June 23, 1995, between
Dresdner Bank AG and Hoechst Corporation.
Exhibit 20. Agreement to Hold Separate, dated June 26,
1995, among the Federal Trade Commission,
Hoechst AG, The Dow Chemical Company and
Marion Merrell Dow Inc.
Exhibit 21. Proxies, dated June 28, 1995, executed by The
Dow Chemical Company, RH Acquisition Corp.
and Dow Holdings Inc. in favor of H Pharma
Acquisition Corp.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
HOECHST CORPORATION
By: /s/ Harry R. Benz
Title: Secretary and Treasurer
Date: June 30, 1995
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
H PHARMA ACQUISITION CORP.
By: /s/ David A. Jenkins
Title: Vice President and Secretary
Date: June 30, 1995
SCHEDULE 1.1
CERTAIN INFORMATION RELATING
TO DIRECTORS AND EXECUTIVE OFFICERS
The following information is hereby added to
Schedule 1 of the Statement:
1. DIRECTORS AND EXECUTIVE OFFICERS OF HOECHST
AG. On June 13, 1995, the following two persons were named
to the Supervisory Board of Hoechst AG. Each person listed
below is a citizen of Germany. The business address for Mr.
Hilger is Hoechst AG, 65926 Frankfurt Main, Germany, and the
business address for Mr. Wegehingel is Hoechst AG, Werk
Gersthofen, Adolf von Baeyer Str. 3, 866369 Gersthofen,
Germany. The occupation set forth opposite the individual's
name refers to employment with Hoechst AG. In addition,
effective as of June 30, 1995, Rolf Brand and Oswald Bommell
retired from the Supervisory Board of Hoechst AG.
Name and Business Address Principal Present Occupation
SUPERVISORY BOARD
Jurgen Hilger Member of the Central Works
Council
Adam Wegenhingel Member of the Central Works
Council
EXHIBIT INDEX
Exhibit 18. Loan Agreement, dated June 22, 1995, between
Dai-Ichi Kangyo Bank and Hoechst Corporation.
Exhibit 19. Loan Agreements, dated June 23, 1995, between
Dresdner Bank AG and Hoechst Corporation.
Exhibit 20. Agreement to Hold Separate, dated June 26,
1995, among the Federal Trade Commission,
Hoechst AG, The Dow Chemical Company and
Marion Merrell Dow Inc.
Exhibit 21. Proxies, dated June 28, 1995, executed by The
Dow Chemical Company, RH Acquisition Corp.
and Dow Holdings Inc. in favor of H Pharma
Acquisition Corp.
EXHIBIT 18
LOAN AGREEMENT
between
DAI-ICHI KANGYO BANK (New York Branch)
(The Lender)
HOECHST CORPORATION OR A 100% OWNED SUBSIDIARY OF HOECHST
CORPORATION
(The Borrower)
The Lender hereby agrees to make loans, on a committed basis,
available to the Borrower.
The following Terms and Conditions of the loan are hereby agreed to
between the Lender and the Borrower
Purpose of loan: General Financing Purposes
Commitment: Aggregate borrowings shall at no
time exceed Three Hundred Fifty
Million US-Dollars (US$
350,000,000).
Evidence of Debt: The borrowings under the Loan
Agreement will be on an unsecured
basis and will be evidenced by the
promissory note (the "Note") of
the Borrower in the form of
Exhibit A annexed hereto.
Maturity: The Commitment of the Lender
terminates and all loans
outstanding, if any, shall be
repaid in full on June 27, 1996
(364 days from the start of the
Commitment, unless the Lender, in
its sole discretion, decides to
allow the borrower a new rollover
period starting prior to the end
of the commitment period which
extends beyond the end of the
original commitment period).
Rate of Interest: Interested rate will be a rate per
annum equal to the sum of LIBOR
plus 0.05%. The term "LIBOR"
means for each Interest Period,
the average rate per annum
(rounded up to the nearest basis
point) shown on the Reuters LIBO
page at or about 11:00 a.m. New
York time two Business Days before
the commencement of an Interest
Period.
Computation of Interest: All computations of interest shall
be made by the Lender on the basis
of a year of 360 days, in each
case for the actual number of days
(including the first day but
excluding the last day) occurring
in the period of which such
interest is payable.
Payment of Interest: The interest will be paid on the
last day of each Interest Period.
Commitment fee: At the rate of 2.5 Basis Points
per annum (on the basis of a year
of 365 or 366 days for the actual
number of days elapsed) on the
average daily unused amount of the
Commitment and payable on the last
day of each calendar quarter.
Start of the commitment: June 28, 1995
Interest periods: 1,2,3 or 6 months or 364 days, as
chosen by the Borrower, on a roll-
over basis.
Participations + Assignment: None Permitted.
Payments: The Company shall make all
payments and advances to be made
by it under this Agreement not
later than 11:00 a.m. (New York
City time) on the date when due in
U.S. Dollars to the Lender in New
York in same day funds.
Business Day shall be construed as
a reference to a day on which
banks are generally open for
business in London and New York.
If a payment hereunder or under
the note shall be stated to be due
on a day other than a Business
Day, such payment shall be made on
the next succeeding Business Day
in the same calendar month (if
there is one) or the preceding Day
(if there is not). Any such
extension or reduction of time
shall be included in the
computation of interest.
Term: During the term of the Commitment,
the Borrower can borrow, repay and
re-borrow against the total
Commitment in a minimum amount of
$20,00,000, - and integral
multiples of $5,000,000, -
Borrowings will be available on
two Business Day's notice to the
Lender in New York.
Premature cancellation of the The Borrower may cancel the
commitment by the Borrower: commitment in whole or in part,
whether or not drawdowns are
outstanding, with 4 weeks notice
to the Lender. If an advance is
outstanding, notice must be given
at least 4 weeks prior to the
applicable rollover date.
Optional Prepayment: Optional prepayment of principal
may be made at any time, in whole
or in part, without penalty or
premium upon at least 4 weeks
notice prior to each rollover date
to the Lender in New York. If
prepayment of principal occurs on
a date other than the end of an
interest period, Borrower will pay
to Lender any applicable breakage
costs, provided that such breakage
costs are documented in reasonable
details by the Lender to the
Borrower.
Other Conditions: 1. Parri Passu with senior
unsecured obligations of the
Borrower.
2. Hoechst AG, with the
exception of the following
other conditions under 3.
below, will be at least,
directly, or indirectly the
majority owner of Hoechst
Corporation during the life
of the facility.
3. The Borrower shall be
entitled to any time, with
the prior consent of the
Lender (such consent not to
be unreasonably withheld),
to substitute for the
Borrower with any other
company, of which more that
51% of the outstanding
capital or voting rights are
directly or indirectly owned
by Hoechst AG, as debtor in
respect of all obligations
arising from or in connection
with the loan.
Covenants: None.
Governing Law and Jurisdiction: New York Law and Courts of New
York.
This Loan Agreement represents the entire understanding between the
parties with respect to the transactions contemplated hereby. The
existence and terms of this agreement shall remain strictly
confidential unless: Otherwise agreed to in writing by the Borrower
or the Lender, as the case may be; or, as required by applicable
laws and regulations.
Signed:
on behalf of The Borrower: on behalf of The Lender:
HOECHST CORPORATION
/s/ K. Schmieder /s/ A. Nekoshima
Date: June 22, 1995 Date: 9 June 1995
NOTE
U.S. $350,000,000. Dated: June 28, 1995
FOR VALUE RECEIVED, Hoechst Corporation, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of The Dai Ichi
Kangyo Bank (the "Lender"), at the Lender's office at One World
Trade Center, New York, NY, in the lawful money of the United States
and in immediately available funds, the aggregate unpaid principal
amount of each borrowing made by the Lender to the Borrower pursuant
to the Loan Agreement between the Borrower and the Lender (the
"Agreement") on the last day of the Interest Period relating to such
borrowing; provided, however, that all borrowings shall be repaid in
full on the Maturity Date as defined in the Agreement.
The Borrower agrees to pay interest (computed on the basis of actual
days elapsed and a year of 360 days) from the date hereof on said
principal sum or the unpaid balance thereof until said principal sum
is paid in full, in like money at said office at the rate and on the
dates negotiated under the terms of the Agreement.
This Note is the Note referred to in the Agreement and is entitled
to the benefits of said Agreement.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising,
any rights hereunder on the part of the holder hereof shall
operation as a waiver of such rights.
The Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
HOECHST CORPORATION
By: K. Schmieder
By: H. Benz
EXHIBIT 19
Frankfurt/Main, June 23, 1995
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Dear Sirs,
We refer to our discussions and are pleased to confirm that on the
basis of our General Business Conditions and in accordance with the
terms and conditions set forth below were are willing to grant a
term credit facility (the "Facility") to you:
(1) Amount: US$ 450.000.000, - (US Dollars four
hundred and fifty million).
(1a) Commitment: We shall be committed to permit draw
downs under this Facility for the period
starting on June 28th, 1995 and ending on
June 28th, 1996 (Commitment Period).
During the term of the Commitment Period
you shall at any time be entitled to
cancel the Commitment in whole or in part
with 4 weeks written notice to us. From
and after such termination no further
draw downs shall be permissible inasfar
as the Commitment has been terminated.
Any amounts remaining committed after a
partial termination of the Commitment
shall hereinafter be referred to as the
"Available Commitment".
(2) Purpose: General financing purposes.
(3) Drawdown: This Facility may be drawn down, subject
to the availability of the respective US
Dollar amounts in the Euro-Dollar market
in one or more tranches until June 28th,
1996 by giving two Business Days
irrevocable advice prior to the envisaged
drawdown date, specifying the date of the
proposed drawdown, the amount thereof and
the duration of the applicable Interest
Period (as hereafter defined). The
details of the drawdown should reach us
no later than 11.00 a.m. Frankfurt time.
In the event that the respective US
Dollar amounts are not available to us in
the Euro Dollar market we shall provide
them from within the US domestic market
or use our best efforts to provide
refinancing from another national or
international market accessible for us
(whichever is the most favorable for
you), provided, however, that in such
case the interest rate stipulated in
paragraph (5) below shall not be
applicable but instead thereof you shall
pay interest at the rate of cost of funds
plus a margin of 5 basis points. In case
the source of refinancing is a market
other than the Euro Dollar or the
domestic Dollar market all notice periods
and due dates shall be adjusted
accordingly.
The amounts draw down shall be made
available to you on your current account
maintained with Dresdner Bank AG New
York.
"Business Day" means a day on which
dealings in US Dollar deposits are
carried out in the interbank eurocurrency
market or, if a payment is required
hereunder to be made on such day, a day
on which commercial banks and foreign
exchange markets are open for business in
the place where such payment is required
to be made and if anything is required to
be done or received by us, in
Frankfurt/Main, Germany.
(4) Repayment/
Prepayment: This Facility shall be repaid in full in
one amount on the date falling 12 months
after the date of the first draw down.
You have the right upon not less than ten
Business Days prior irrevocable written
notice to prepay this Facility in whole
or in part by a minimum amount of US
Dollar 20 million plus integral multiples
of 5 million together with interest
accrued thereon but without premium or
penalty prior to the date set forth in
the preceding paragraph. However, in
this event the provisions set forth in
No. 8 b) and No. 12 below shall apply.
(5) Interest Rate: 5 Basis Points (0.05%) p.a. net above the
London-Interbank-Offered-Rate (LIBOR) for
US Dollars for interest periods
("Interest Periods") of one, two, three
or six months (whichever is selected by
you). Interest will accrue on a daily
basis and shall be computed on the basis
of a year of 360 days and the actual
number of days elapsed. LIBOR relating
to each Interest Period shall be the rate
as displayed at or about 11.00 a.m.
(London time) on the second Business Day
before the first day of such Interest
Period on Page 3750 of the Telerate
Service (or such other page as may
replace Page 3750 on that service or such
other service as may be nominated by the
British Bankers' Association as the
information vendor for the purpose of
displaying British Bankers' Association
Interest Settlement Rates for deposits in
US Dollars.
Interest is payable in arrears on the
last day of each Interest Period
("Interest Payment Date"), however, if
the payment date falls on a day other
than a Business Day, interest will be
payable on, and computed, until the next
succeeding Business Day.
If you fail to select the duration of any
Interest Period by the second Business
Day prior to the beginning of each
Interest Period, it shall be of a
duration of one month.
If you fail to pay any amount of
principal in accordance with the terms
set by, or pursuant to, this letter, you
shall pay interest on that amount from
the time of default up to the time of
actual payment (as well after as before
judgement) at a rate per annum of the
aggregate of one per cent (1%) and the
rate or rates at which we were able to
fund the amount in default, for such
period as we may from time to time
select.
If you fail to pay any amount in
accordance with the terms set by, or
pursuant to, this letter, other than
principal, you shall pay immediately upon
first demand, by way of Indemnification
and in addition to that amount, a lump
sum computed on that amount for the
period from the time of default up to the
time of actual payment (as well after as
before judgement) at a rate per annum of
one per cent (1%) above the London-
Interbank-Offered-Rate applicable on the
due date and determined in accordance
with the provisions of the first
paragraph of this clause.
(6) Fees: You shall pay a commitment fee on undrawn
amounts under the Available Commitment
computed at the rate of 2.5 Basis Points
per annum (0.025% p.a.) on the daily
undrawn portion of this Facility. Such
commitment fee shall accrue from day to
day during the period commencing on June
28th, 1995 and ending on June 28th, 1996
and shall be payable quarterly in arrears
with a final payment on the date set
forth in No. 3 above. The commitment fee
shall be calculated on the basis
described in No.5 above.
(7) Expenses: You shall reimburse us for all charges
and expenses reasonably incurred by us in
connection with the preservation or
enforcement or attempted preservation or
enforcement of any rights hereunder in
the amount and currency as requested by
us.
(8) Payments: a) All amounts payable by you in
respect of this Facility shall be
paid to us on the due dates (not
later than 10.30 a.m. New York
time) in US Dollars in such funds
as are customary at the date on
which the payment is made for
settlement of international banking
transactions through the New York
Clearing House Interbank Payments
System, to our account no. 400/00
maintained with Dresdner Bank AG
New York.
b) If any repayment or prepayment of
principal falls within an Interest
Period and accordingly we receive
all of the amount repaid or prepaid
otherwise than on the applicable
Interest Payment Date you shall pay
to us on demand for our account an
amount equal to the amount (if any)
by which (i) the additional
interest which would have been
payable on the amount so received
had it been received on the
applicable Interest Payment Date
exceeds (ii) the amount of interest
which we shall certify would have
been payable to us on that
applicable Interest Payment Date in
respect of a deposit equal to the
amount so received placed by us
with a prime bank in the relevant
interbank eurocurrency market for a
period starting on the second
Business Day following the date of
such receipt and ending on the
applicable Interest Payment Date.
(9) Representations
and Warranties: You represent and warrant to us at the
date hereof that:
(a) you are a company duly established
under the laws of the State of
Delaware, United States of America;
(b) to the best of your knowledge no
litigation, arbitration or
administrative proceedings are
presently pending or threatened
against you which, if adversely
determined, would have a material
adverse effect on your financial
condition;
(c) borrowings made hereunder will,
except for bond issues, at all
times rank at least pari passu in
rights, priority of payment and
collateral with all other present
and future most senior unsecured
indebtedness issued, created or
assumed by you; and
(d) the facts and figures contained in
your audited Consolidated Financial
Reports for the year ended on
31.12.1994 or in any other balance
sheets, profit and loss accounts or
other financial statements of yours
delivered in accordance with No. 10
below are true and correct and
present a true and fair view of
your financial position as at the
date of such facts and figures and
or the results of your operations
for the period(s) therein set out
and your accounts have been
prepared in accordance with
generally accepted accounting
principles and practices
consistently applied and there has
been no material adverse change in
the business, property, assets and
financial condition of yours since
such date.
Each of the above representations and
warranties will be correct and complied
with so long as any amount remains
payable under this Facility on each
Interest Payment Date as if repeated
then, except that each reference to
financial statements in subclause (d)
above shall be construed as a reference
to your then latest available financial
statements.
(10) Undertakings: You hereby undertake that:
(a) you furnish to us as soon as
practicable (and in any event not
later than 180 days after the close
of each financial year) your
audited Consolidate Financial
Reports (balance sheet and profit
and loss account);
(b) you supply to us any such financial
information as we may reasonably
request from time to time;
(c) you advise us in writing with full
particulars of any material respect
in which any of the representations
and warranties set forth herein
cannot at any time be renewed; and
(d) you will not create nor permit to
be created, unless our prior
written consent has been obtained,
any encumbrances (i.e. mortgages,
pledges, liens, charges or other
similar or equivalent security
interests) upon any of your assets
other than in the ordinary course
of business or in an amount greater
than 250 million US$.
(11) Events of Earlier
Repayment: Upon the occurrence of an important
reason including but not limited to any
of the following events:
(a) you fail to pay any sum due
hereunder at the time, in the
currency and in the manner
specified herein or, if the non-
payment arises by reason of
technical or administrative
difficulties beyond your control,
the nonpayment continues unremedied
for five days from the due date; or
(b) you fail to perform or to observe
any other obligation under this
letter and such non-performance or
non-observance, if capable of
remedy, continues unremedied for
twenty Business Days after we shall
have given notice thereof to you;
or
(c) any representation, warranty or
statement made or deemed to be made
by you hereunder or made in any
information furnished or document
delivered by you or at our request
(as the case may be) to us shall
prove to have been incorrect when
made or given in any material
respect; or
(d) any present or future indebtedness
(whether contingent or not) or
yours aggregating to US$ 10 million
or more shall become due and
payable or capable of being
declared due and payable prior to
the stated maturity thereof or
shall not be paid at the due date
(as extended by any applicable days
of grace set out in the document
constituting such indebtedness) or
any similar obligation of yours is
not discharged at maturity or when
called unless such indebtedness or
obligation is contested by you in
good faith; or
(e) you file or cause the filing of a
petition in bankruptcy are
adjudicated insolvent or bankrupt,
generally cease paying debts as
they mature, make an assignment for
the benefit of creditors, apply for
or cause the appointment of a
trustee, receiver or liquidator for
you or any substantial part of your
property or assets, or if a
bankruptcy, reorganization,
arrangement, insolvency, or other
similar proceeding shall be
instituted by or against you under
the laws of any jurisdiction, and
in the case of any such proceeding
instituted against you (but not
initiated by you), either such
proceeding shall remain undismissed
or unstayed for a period of ninety
(90) days or any of the actions
sought in such proceeding
(including, without limitation, the
entry of an order for relief
against you or the appointment of a
receiver, trustee, custodian or
similar official for you or for any
substantial part of your property)
shall occur,
then and in any event, without prior
notice being required (except as
specifically mentioned in this
agreement), and at any time thereafter we
may by notice to you declare that this
Facility together with all interest
accrued thereon and all other amounts
payable hereunder are immediately due and
payable, whereupon the same shall become
immediately due and payable.
(12) Indemnity: You shall fully indemnify us from and
against any expenses, loss, damage or
liability (as to the amount of which a
certificate from us outlining in
reasonable detail such loss, damages or
liability shall, in the absence of
manifest error, be conclusive) which we
reasonably may incur as a consequence of
the occurrence of any event referred to
in No. 11 above or any event which, with
the giving of notice and/or the lapse of
time and/or the fulfillment of any other
condition, would constitute such an
event, or of any failure to borrow on any
date agreed to with us or otherwise on
terms agreed with us, under this letter.
Without prejudice to its generality, the
foregoing indemnity shall extend to any
interest, fees or other sums whatsoever
paid or payable on account of any funds
borrowed in order to carry any unpaid
amount and to any loss (including loss of
profit), premium, penalty or expense
which may be incurred by us in
liquidating or employing deposits from
third parties acquired to make, maintain
or fund this Facility (or for any part of
it) or any other amount due or to become
due under this letter.
(13) Change in
Circumstances: (a) If any change in any applicable law
or regulation or the interpretation
thereof shall impose, modify or
deem applicable any reserve
requirements against assets held by
us, advances made or deposits taken
by us, and the result is to
increase our costs in making
available this Facility, then on
the thirtieth Business Day after
written demand you shall pay to us
any and all additional amounts
required to compensate us for such
increased costs. In this event you
may prepay this Facility on the
next succeeding Interest Payment
Date by giving us a preadvice of at
least five Business Days.
(b) If it shall become unlawful for
either party to comply with any of
the provisions of this letter as
the result of the promulgation of
any applicable law, rule or
regulation, or any change therein,
our obligation to allow drawdowns
hereunder will end and, if any
amounts have been drawn down
hereunder, you will repay such
amounts in full on demand on the
tenth Business Day after receipt by
you of such demand or such other
date as is required by the relevant
law, rule or regulation.
(c) Upon the occurrence of any event
described in subclauses (a) and (b)
above, we will during a period of
thirty days take reasonable steps
to transfer this Facility to
another member of the Dresdner Bank
Group or to another financial
institution, provided that such
transfer can be made for such
consideration and on such other
terms so that we or such transferee
suffers no economic, legal,
regulatory or other disadvantage,
with the object of avoiding the
consequence of the event giving
rise to the operation of sub-
clauses (a) and (b) above. Any
expenses reasonably incurred by us
in so doing shall be paid by you
upon delivery to you of a
certificate setting forth in
reasonable detail as to the amount
of such expenses, which, in the
absence of manifest error, shall be
conclusive and binding.
(14) Taxes: All amounts payable by you under this
Facility shall be paid:
(a) free and clear of and without any
deduction or withholding on account
of any tax; and
(b) without deduction or withholding on
account of any other amount,
whether by way of set-off or
otherwise.
If by any law you are unable to pay
without a deduction or withholding, you
will forthwith pay such additional amount
so that the net amount received by us
will equal the full amount which would
have been received had no such deduction
or withholding been made, and you will
furnish to us, within the period for
payment permitted by applicable law, an
official receipt of the relevant taxation
or other authorities involved for all
amounts deducted or withheld as
aforesaid.
If you make a withholding payment under
this Section (14) Taxes in respect of a
payment to us under this Agreement and we
obtain a refund of tax or obtain and use
a credit against tax on overall net
income (a "Tax Credit") which is
attributable to your tax payment, then we
shall reimburse you such amount as that
we determine to be such proportion of
that Tax Credit as will leave us (after
reimbursement) in no better or worse
position in respect of our worldwide tax
liabilities than we would have been in if
no tax payment had been required. We
shall have an absolute discretion (which
shall not unreasonably be exercised) as
to whether to claim any Tax Credit (and,
if we do claim, the extent, order and
manner in which we do so). We shall be
entitled to arrange and to organize our
tax affairs as we require in our absolute
discretion.
(15) Assignment: We are entitled to assign all or any part
of our rights hereunder only to any other
member of the Dresdner Bank Group
provided that we promptly inform you of
any such assignment and further provided
that such assignment shall not result in
any increased cost to you.
(16) Communication: Each communication under this letter
shall be made by telex, facsimile
transmission or otherwise in writing.
Each communication shall be sent,
(i) if to us:
Dresdner Bank AG
Filiale Hoechst
Attn. Mr. Hans-Juergen Stricker
Dalbergstrabe 14
D-65902 Frankfurt am Main
Telephone: 69-3006-201
Telefax: 69-3006-292
Telex:
(ii) if to you:
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Telephone: 908-231-2473
Telefax: 908-231-2039
Telex: --------
(17) Conditions
Precedent: Initial Drawdown under this Facility is
subject to the receipt of the following
documents in form and substance
satisfactory to us:
(a) your constitutive documents
(Articles of By-Laws, etc.) duly
certified;
(b) a Board Resolution duly certified
authorizing you to enter into this
Facility and to conclude the
agreement contained in this letter
and specifying the persons
authorized to execute and deliver
this letter on your behalf;
(c) specimen signatures of all persons
authorized to sign for and on your
behalf all declarations which may
be given under this Facility; and
(d) a legal opinion from counsel
acceptable to us substantially in
the form set out in Exhibit A
hereto.
(18) Governing Law and
Jurisdiction: This letter shall be governed by and
construed in accordance with the laws of
the Federal Republic of Germany. Place
of jurisdiction is Frankfurt/Main.
You shall at all times maintain an agent
for service of process. Such agent shall
be Hoechst AG and any writ, judgement or
other notice of legal process shall be
sufficiently served on you if delivered
to such agent at 65926 Postfach,
Brueningstrabe 50, Frankfurt-Hoechst,
Rechtsabteilung, for the time being. You
undertake not to revoke the authority of
the above agent and if, for any reason,
such agent no longer serves as your agent
to receive service of process, you shall
promptly appoint another such agent and
advise us thereof.
(19) Change of Borrower: You shall be entitled at any time with
our prior written consent (which shall
not unreasonably be withheld) to
substitute as Borrower any other company,
of which more than 51% of the outstanding
capital or voting rights are directly or
indirectly owned by Hoechst AG, as debtor
in respect of all obligations arising
from or in connection with the loan.
May we kindly ask you to indicate your agreement to the
aforementioned by duly signing both copies of this letter and
returning one copy thereof to us.
Yours faithfully,
Dresdner Bank AG in Frankfurt/Main
/s/ Pulley /s/ Dr. V. Harbou
Pulley Dr. v. Harbou
AGREED:
Date:
/s/ Harry Benz
for and on behalf of Hoechst Corporation
Frankfurt/Main, June 23, 1995
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Dear Sirs,
We refer to our discussions and are pleased to confirm that on the
basis of our General Business Conditions and in accordance with the
terms and conditions set forth below were are willing to grant a
term credit facility (the "Facility") to you:
(1) Amount: US$ 1.000.000.000,-(US Dollars one
billion).
(1a) Commitment: We shall be committed to permit draw
downs under this Facility for the period
starting on June 28th, 1995 and ending
on June 28th, 1996 (Commitment Period).
During the term of the Commitment Period
you shall at any time be entitled to
cancel the Commitment in whole or in
part with 4 weeks written notice to us.
From and after such termination no
further draw downs shall be permissible
inasfar as the Commitment has been
terminated. Any amounts remaining
committed after a partial termination of
the Commitment shall hereinafter be
referred to as the "Available
Commitment".
(2) Purpose: General financing purposes.
(3) Drawdown: This Facility may be drawn down, subject
to the availability of the respective US
Dollar amounts in the Euro-Dollar market
in one or more tranches until June 28st,
1996 by giving two Business Days
irrevocable advice prior to the
envisaged drawdown date, specifying the
date of the proposed drawdown, the
amount thereof and the duration of the
applicable Interest Period (as hereafter
defined). The details of the drawdown
should reach us no later than 11.00 a.m.
Frankfurt time. In the event that the
respective US Dollar amounts are not
available to us in the Euro Dollar
market we shall provide them from within
the US domestic market or use our best
efforts to provide refinancing from
another national or international market
accessible for us (whichever is the most
favorable for you), provided, however,
that in such case the interest rate
stipulated in paragraph (5) below shall
not be applicable but instead thereof
you shall pay interest at the rate of
cost of funds plus a margin of 5 basis
points. In case the source of
refinancing is a market other than the
Euro Dollar or the domestic Dollar
market all notice periods and due dates
shall be adjusted accordingly.
The amounts draw down shall be made
available to you on your current account
maintained with Dresdner Bank AG New
York.
"Business Day" means a day on which
dealings in US Dollar deposits are
carried out in the interbank
eurocurrency market or, if a payment is
required hereunder to be made on such
day, a day on which commercial banks and
foreign exchange markets are open for
business in the place where such payment
is required to be made and if anything
is required to be done or received by
us, in Frankfurt/Main, Germany.
(4) Repayment/
Prepayment: This Facility shall be repaid in full in
one amount on the date falling 12 months
after the date of the first draw down.
You have the right upon not less than
ten Business Days prior irrevocable
written notice to prepay this Facility
in whole or in part by a minimum amount
of US Dollar 20 million plus integral
multiples of 5 million together with
interest accrued thereon but without
premium or penalty prior to the date set
forth in the preceding paragraph.
However, in this event the provisions
set forth in No. 8 b) and No. 12 below
shall apply.
(5) Interest Rate: 5 Basis Points (0.05%) p.a. net above
the London-Interbank-Offered-Rate
(LIBOR) for US Dollars for interest
periods ("Interest Periods") of one,
two, three or six months (whichever is
selected by you). Interest will accrue
on a daily basis and shall be computed
on the basis of a year of 360 days and
the actual number of days elapsed.
LIBOR relating to each Interest Period
shall be the rate as displayed at or
about 11.00 a.m. (London time) on the
second Business Day before the first day
of such Interest Period on Page 3750 of
the Telerate Service (or such other page
as may replace Page 3750 on that service
or such other service as may be
nominated by the British Bankers'
Association as the information vendor
for the purpose of displaying British
Bankers' Association Interest Settlement
Rates for deposits in US Dollars.
Interest is payable in arrears on the
last day of each Interest Period
("Interest Payment Date"), however, if
the payment date falls on a day other
than a Business Day, interest will be
payable on, and computed, until the next
succeeding Business Day.
If you fail to select the duration of
any Interest Period by the second
Business Day prior to the beginning of
each Interest Period, it shall be of a
duration of one month.
If you fail to pay any amount of
principal in accordance with the terms
set by, or pursuant to, this letter, you
shall pay interest on that amount from
the time of default up to the time of
actual payment (as well after as before
judgement) at a rate per annum of the
aggregate of one per cent (1%) and the
rate or rates at which we were able to
fund the amount in default, for such
period as we may from time to time
select.
If you fail to pay any amount in
accordance with the terms set by, or
pursuant to, this letter, other than
principal, you shall pay immediately
upon first demand, by way of
Indemnification and in addition to that
amount, a lump sum computed on that
amount for the period from the time of
default up to the time of actual payment
(as well after as before judgement) at a
rate per annum of one per cent (1%)
above the London-Interbank-Offered-Rate
applicable on the due date and
determined in accordance with the
provisions of the first paragraph of
this clause.
(6) Fees: You shall pay a commitment fee on
undrawn amounts under the Available
Commitment computed at the rate of 2.5
Basis Points per annum (0.025% p.a.) on
the daily undrawn portion of this
Facility. Such commitment fee shall
accrue from day to day during the period
commencing on June 28th, 1995 and ending
on June 28th, 1996 and shall be payable
quarterly in arrears with a final
payment on the date set forth in No. 3
above. The commitment fee shall be
calculated on the basis described in
No.5 above.
(7) Expenses: You shall reimburse us for all charges
and expenses reasonably incurred by us
in connection with the preservation or
enforcement or attempted preservation or
enforcement of any rights hereunder in
the amount and currency as requested by
us.
(8) Payments: a) All amounts payable by you in
respect of this Facility shall be
paid to us on the due dates (not
later than 10.30 a.m. New York
time) in US Dollars in such funds
as are customary at the date on
which the payment is made for
settlement of international
banking transactions through the
New York Clearing House Interbank
Payments System, to our account
no. 400/00 maintained with
Dresdner Bank AG New York.
b) If any repayment or prepayment of
principal falls within an Interest
Period and accordingly we receive
all of the amount repaid or
prepaid otherwise than on the
applicable Interest Payment Date
you shall pay to us on demand for
our account an amount equal to the
amount (if any) by which (i) the
additional interest which would
have been payable on the amount so
received had it been received on
the applicable Interest Payment
Date exceeds (ii) the amount of
interest which we shall certify
would have been payable to us on
that applicable Interest Payment
Date in respect of a deposit equal
to the amount so received placed
by us with a prime bank in the
relevant interbank eurocurrency
market for a period starting on
the second Business Day following
the date of such receipt and
ending on the applicable Interest
Payment Date.
(9) Representations
and Warranties: You represent and warrant to us at the
date hereof that:
(a) you are a company duly established
under the laws of the State of
Delaware, United States of
America;
(b) to the best of your knowledge no
litigation, arbitration or
administrative proceedings are
presently pending or threatened
against you which, if adversely
determined, would have a material
adverse effect on your financial
condition;
(c) borrowings made hereunder will,
except for bond issues, at all
times rank at least pari passu in
rights, priority of payment and
collateral with all other present
and future most senior unsecured
indebtedness issued, created or
assumed by you; and
(d) the facts and figures contained in
your audited Consolidated
Financial Reports for the year
ended on 31.12.1994 or in any
other balance sheets, profit and
loss accounts or other financial
statements of yours delivered in
accordance with No. 10 below are
true and correct and present a
true and fair view of your
financial position as at the date
of such facts and figures and or
the results of your operations for
the period(s) therein set out and
your accounts have been prepared
in accordance with generally
accepted accounting principles and
practices consistently applied and
there has been no material adverse
change in the business, property,
assets and financial condition of
yours since such date.
Each of the above representations and
warranties will be correct and complied
with so long as any amount remains
payable under this Facility on each
Interest Payment Date as if repeated
then, except that each reference to
financial statements in subclause (d)
above shall be construed as a reference
to your then latest available financial
statements.
(10) Undertakings: You hereby undertake that:
(a) you furnish to us as soon as
practicable (and in any event not
later than 180 days after the
close of each financial year) your
audited Consolidate Financial
Reports (balance sheet and profit
and loss account);
(b) you supply to us any such
financial information as we may
reasonably request from time to
time;
(c) you advise us in writing with full
particulars of any material
respect in which any of the
representations and warranties set
forth herein cannot at any time be
renewed; and
(d) you will not create nor permit to
be created, unless our prior
written consent has been obtained,
any encumbrances (i.e. mortgages,
pledges, liens, charges or other
similar or equivalent security
interests) upon any of your assets
other than in the ordinary course
of business or in an amount
greater than 250 million US$.
(11) Events of Earlier
Repayment: Upon the occurrence of an important
reason including but not limited to any
of the following events:
(a) you fail to pay any sum due
hereunder at the time, in the
currency and in the manner
specified herein or, if the non-
payment arises by reason of
technical or administrative
difficulties beyond your control,
the nonpayment continues
unremedied for five days from the
due date; or
(b) you fail to perform or to observe
any other obligation under this
letter and such non-performance or
non-observance, if capable of
remedy, continues unremedied for
twenty Business Days after we
shall have given notice thereof to
you; or
(c) any representation, warranty or
statement made or deemed to be
made by you hereunder or made in
any information furnished or
document delivered by you or at
our request (as the case may be)
to us shall prove to have been
incorrect when made or given in
any material respect; or
(d) any present or future indebtedness
(whether contingent or not) or
yours aggregating to US$ 10
million or more shall become due
and payable or capable of being
declared due and payable prior to
the stated maturity thereof or
shall not be paid at the due date
(as extended by any applicable
days of grace set out in the
document constituting such
indebtedness) or any similar
obligation of yours is not
discharged at maturity or when
called unless such indebtedness or
obligation is contested by you in
good faith; or
(e) you file or cause the filing of a
petition in bankruptcy are
adjudicated insolvent or bankrupt,
generally cease paying debts as
they mature, make an assignment
for the benefit of creditors,
apply for or cause the appointment
of a trustee, receiver or
liquidator for you or any
substantial part of your property
or assets, or if a bankruptcy,
reorganization, arrangement,
insolvency, or other similar
proceeding shall be instituted by
or against you under the laws of
any jurisdiction, and in the case
of any such proceeding instituted
against you (but not initiated by
you), either such proceeding shall
remain undismissed or unstayed for
a period of ninety (90) days or
any of the actions sought in such
proceeding (including, without
limitation, the entry of an order
for relief against you or the
appointment of a receiver,
trustee, custodian or similar
official for you or for any
substantial part of your property)
shall occur,
then and in any event, without prior
notice being required (except as
specifically mentioned in this
agreement), and at any time thereafter
we may by notice to you declare that
this Facility together with all interest
accrued thereon and all other amounts
payable hereunder are immediately due
and payable, whereupon the same shall
become immediately due and payable.
(12) Indemnity: You shall fully indemnify us from and
against any expenses, loss, damage or
liability (as to the amount of which a
certificate from us outlining in
reasonable detail such loss, damages or
liability shall, in the absence of
manifest error, be conclusive) which we
reasonably may incur as a consequence of
the occurrence of any event referred to
in No. 11 above or any event which, with
the giving of notice and/or the lapse of
time and/or the fulfillment of any other
condition, would constitute such an
event, or of any failure to borrow on
any date agreed to with us or otherwise
on terms agreed with us, under this
letter. Without prejudice to its
generality, the foregoing indemnity
shall extend to any interest, fees or
other sums whatsoever paid or payable on
account of any funds borrowed in order
to carry any unpaid amount and to any
loss (including loss of profit),
premium, penalty or expense which may be
incurred by us in liquidating or
employing deposits from third parties
acquired to make, maintain or fund this
Facility (or for any part of it) or any
other amount due or to become due under
this letter.
(13) Change in
Circumstances: (a) If any change in any applicable
law or regulation or the
interpretation thereof shall
impose, modify or deem applicable
any reserve requirements against
assets held by us, advances made
or deposits taken by us, and the
result is to increase our costs in
making available this Facility,
then on the thirtieth Business Day
after written demand you shall pay
to us any and all additional
amounts required to compensate us
for such increased costs. In this
event you may prepay this Facility
on the next succeeding Interest
Payment Date by giving us a
preadvice of at least five
Business Days.
(b) If it shall become unlawful for
either party to comply with any of
the provisions of this letter as
the result of the promulgation of
any applicable law, rule or
regulation, or any change therein,
our obligation to allow drawdowns
hereunder will end and, if any
amounts have been drawn down
hereunder, you will repay such
amounts in full on demand on the
tenth Business Day after receipt
by you of such demand or such
other date as is required by the
relevant law, rule or regulation.
(c) Upon the occurrence of any event
described in subclauses (a) and
(b) above, we will during a period
of thirty days take reasonable
steps to transfer this Facility to
another member of the Dresdner
Bank Group or to another financial
institution, provided that such
transfer can be made for such
consideration and on such other
terms so that we or such
transferee suffers no economic,
legal, regulatory or other
disadvantage, with the object of
avoiding the consequence of the
event giving rise to the operation
of sub-clauses (a) and (b) above.
Any expenses reasonably incurred
by us in so doing shall be paid by
you upon delivery to you of a
certificate setting forth in
reasonable detail as to the amount
of such expenses, which, in the
absence of manifest error, shall
be conclusive and binding.
(14) Taxes: All amounts payable by you under this
Facility shall be paid:
(a) free and clear of and without any
deduction or withholding on
account of any tax; and
(b) without deduction or withholding
on account of any other amount,
whether by way of set-off or
otherwise.
If by any law you are unable to pay
without a deduction or withholding, you
will forthwith pay such additional
amount so that the net amount received
by us will equal the full amount which
would have been received had no such
deduction or withholding been made, and
you will furnish to us, within the
period for payment permitted by
applicable law, an official receipt of
the relevant taxation or other
authorities involved for all amounts
deducted or withheld as aforesaid.
If you make a withholding payment under
this Section (14) Taxes in respect of a
payment to us under this Agreement and
we obtain a refund of tax or obtain and
use a credit against tax on overall net
income (a "Tax Credit") which is
attributable to your tax payment, then
we shall reimburse you such amount as
that we determine to be such proportion
of that Tax Credit as will leave us
(after reimbursement) in no better or
worse position in respect of our
worldwide tax liabilities than we would
have been in if no tax payment had been
required. We shall have an absolute
discretion (which shall not unreasonably
be exercised) as to whether to claim any
Tax Credit (and, if we do claim, the
extent, order and manner in which we do
so). We shall be entitled to arrange
and to organize our tax affairs as we
require in our absolute discretion.
(15) Assignment: We are entitled to assign all or any
part of our rights hereunder only to any
other member of the Dresdner Bank Group
provided that we promptly inform you of
any such assignment and further provided
that such assignment shall not result in
any increased cost to you.
(16) Communication: Each communication under this letter
shall be made by telex, facsimile
transmission or otherwise in writing.
Each communication shall be sent,
(i) if to us:
Dresdner Bank AG
Filiale Hoechst
Attn. Mr. Hans-Juergen Stricker
Dalbergstrabe 14
D-65902 Frankfurt am Main
Telephone: 69-3006-201
Telefax: 69-3006-292
Telex:
(ii) if to you:
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Telephone: 908-231-2473
Telefax: 908-231-2039
Telex: --------
(17) Conditions
Precedent: Initial Drawdown under this Facility is
subject to the receipt of the following
documents in form and substance
satisfactory to us:
(a) your constitutive documents
(Articles of By-Laws, etc.) duly
certified;
(b) a Board Resolution duly certified
authorizing you to enter into this
Facility and to conclude the
agreement contained in this letter
and specifying the persons
authorized to execute and deliver
this letter on your behalf;
(c) specimen signatures of all persons
authorized to sign for and on your
behalf all declarations which may
be given under this Facility; and
(d) a legal opinion from counsel
acceptable to us substantially in
the form set out in Exhibit A
hereto.
(18) Governing Law and
Jurisdiction: This letter shall be governed by and
construed in accordance with the laws of
the Federal Republic of Germany. Place
of jurisdiction is Frankfurt/Main.
You shall at all times maintain an agent
for service of process. Such agent
shall be Hoechst AG and any writ,
judgement or other notice of legal
process shall be sufficiently served on
you if delivered to such agent at 65926
Postfach, Brueningstrabe 50, Frankfurt-
Hoechst, Rechtsabteilung, for the time
being. You undertake not to revoke the
authority of the above agent and if, for
any reason, such agent no longer serves
as your agent to receive service of
process, you shall promptly appoint
another such agent and advise us
thereof.
(19) Change of Borrower: You shall be entitled at any time with
our prior written consent (which shall
not unreasonably be withheld) to
substitute as Borrower any other
company, of which more than 51% of the
outstanding capital or voting rights are
directly or indirectly owned by Hoechst
AG, as debtor in respect of all
obligations arising from or in
connection with the loan.
May we kindly ask you to indicate your agreement to the
aforementioned by duly signing both copies of this letter and
returning one copy thereof to us.
Yours faithfully,
Dresdner Bank AG in Frankfurt/Main
/s/ Pulley /s/ Dr. V. Harbou
Pulley Dr. v. Harbou
AGREED:
Date:
/s/ Harry Benz
for and on behalf of Hoechst Corporation
Frankfurt/Main, June 23, 1995
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Dear Sirs,
We refer to our discussions and are pleased to confirm that on the
basis of our General Business Conditions and in accordance with the
terms and conditions set forth below were are willing to grant a
term credit facility (the "Facility") to you:
(1) Amount: US$ 800.000.000,-(US Dollars eight
hundred million).
(1a) Commitment: We shall be committed to permit draw
downs under this Facility for the period
starting on June 28th, 1995 and ending
on June 28th, 1996 (Commitment Period).
During the term of the Commitment Period
you shall at any time be entitled to
cancel the Commitment in whole or in
part with 4 weeks written notice to us.
From and after such termination no
further draw downs shall be permissible
inasfar as the Commitment has been
terminated. Any amounts remaining
committed after a partial termination of
the Commitment shall hereinafter be
referred to as the "Available
Commitment".
(2) Purpose: General financing purposes.
(3) Drawdown: This Facility may be drawn down, subject
to the availability of the respective US
Dollar amounts in the Euro-Dollar market
in one or more tranches until June 28th,
1996 by giving two Business Days
irrevocable advice prior to the
envisaged drawdown date, specifying the
date of the proposed drawdown, the
amount thereof and the duration of the
applicable Interest Period (as hereafter
defined). The details of the drawdown
should reach us no later than 11.00 a.m.
Frankfurt time. In the event that the
respective US Dollar amounts are not
available to us in the Euro Dollar
market we shall provide them from within
the US domestic market or use our best
efforts to provide refinancing from
another national or international market
accessible for us (whichever is the most
favorable for you), provided, however,
that in such case the interest rate
stipulated in paragraph (5) below shall
not be applicable but instead thereof
you shall pay interest at the rate of
cost of funds plus a margin of 5 basis
points. In case the source of
refinancing is a market other than the
Euro Dollar or the domestic Dollar
market all notice periods and due dates
shall be adjusted accordingly.
The amounts draw down shall be made
available to you on your current account
maintained with Dresdner Bank AG New
York.
"Business Day" means a day on which
dealings in US Dollar deposits are
carried out in the interbank
eurocurrency market or, if a payment is
required hereunder to be made on such
day, a day on which commercial banks and
foreign exchange markets are open for
business in the place where such payment
is required to be made and if anything
is required to be done or received by
us, in Frankfurt/Main, Germany.
(4) Repayment/
Prepayment: This Facility shall be repaid in full in
one amount on the date falling 12 months
after the date of the first draw down.
You have the right upon not less than
ten Business Days prior irrevocable
written notice to prepay this Facility
in whole or in part by a minimum amount
of US Dollar 20 million plus integral
multiples of 5 million together with
interest accrued thereon but without
premium or penalty prior to the date set
forth in the preceding paragraph.
However, in this event the provisions
set forth in No. 8 b) and No. 12 below
shall apply.
(5) Interest Rate: 10 Basis Points (0.10 %) p.a. net above
the London-Interbank-Offered-Rate
(LIBOR) for US Dollars for interest
periods ("Interest Periods") of one,
two, three, six or twelve months
(whichever is selected by you). Interest
will accrue on a daily basis and shall
be the rate as displayed at or about
11.00 a.m. (London time) on the second
Business Day before the first day of
such Interest Period on Page 3750 of the
Telerate Service (or such other page as
may replace Page 3750 on that service or
such other service as may be nominated
by the British Bankers' Association as
the information vendor for the purpose
of displaying British Bankers'
Association Interest Settlement Rates
for deposits in uS Dollars.
Interest is payable in arrears on the
last day of each Interest Period
("Interest Payment Date"), however, if
the payment date falls on a day other
than a Business Day, interest will be
payable on, and computed, until the next
succeeding Business Day.
If you fail to select the duration of
any Interest Period by the second
Business Day prior to the beginning of
each Interest Period, it shall be of a
duration of one month.
If you fail to pay any amount of
principal in accordance with the terms
set by, or pursuant to, this letter, you
shall pay interest on that amount from
the time of default up to the time of
actual payment (as well after as before
judgement) at a rate per annum of the
aggregate of one per cent (1%) and the
rate or rates at which we were able to
fund the amount in default, for such
period as we may from time to time
select.
If you fail to pay any amount in
accordance with the terms set by, or
pursuant to, this letter, other than
principal, you shall pay immediately
upon first demand, by way of
Indemnification and in addition to that
amount, a lump sum computed on that
amount for the period from the time of
default up to the time of actual payment
(as well after as before judgement) at a
rate per annum of one per cent (1%)
above the London-Interbank-Offered-Rate
applicable on the due date and
determined in accordance with the
provisions of the first paragraph of
this clause.
(6) Fees: You shall pay a commitment fee on
undrawn amounts under the Available
Commitment computed at the rate of 5
Basis Points per annum (0.05% p.a.) on
the daily undrawn portion of this
Facility. Such commitment fee shall
accrue from day to day during the period
commencing on June 28th, 1995 and ending
on June 28th, 1996 and shall be payable
quarterly in arrears with a final
payment on the date set forth in No. 3
above. The commitment fee shall be
calculated on the basis described in
No.5 above.
(7) Expenses: You shall reimburse us for all charges
and expenses reasonably incurred by us
in connection with the preservation or
enforcement or attempted preservation or
enforcement of any rights hereunder in
the amount and currency as requested by
us.
(8) Payments: a) All amounts payable by you in
respect of this Facility shall be
paid to us on the due dates (not
later than 10.30 a.m. New York
time) in US Dollars in such funds
as are customary at the date on
which the payment is made for
settlement of international
banking transactions through the
New York Clearing House Interbank
Payments System, to our account
no. 400/00 maintained with
Dresdner Bank AG New York.
b) If any repayment or prepayment of
principal falls within an Interest
Period and accordingly we receive
all of the amount repaid or
prepaid otherwise than on the
applicable Interest Payment Date
you shall pay to us on demand for
our account an amount equal to the
amount (if any) by which (i) the
additional interest which would
have been payable on the amount so
received had it been received on
the applicable Interest Payment
Date exceeds (ii) the amount of
interest which we shall certify
would have been payable to us on
that applicable Interest Payment
Date in respect of a deposit equal
to the amount so received placed
by us with a prime bank in the
relevant interbank eurocurrency
market for a period starting on
the second Business Day following
the date of such receipt and
ending on the applicable Interest
Payment Date.
(9) Representations
and Warranties: You represent and warrant to us at the
date hereof that:
(a) you are a company duly established
under the laws of the State of
Delaware, United States of
America;
(b) to the best of your knowledge no
litigation, arbitration or
administrative proceedings are
presently pending or threatened
against you which, if adversely
determined, would have a material
adverse effect on your financial
condition;
(c) borrowings made hereunder will,
except for bond issues, at all
times rank at least pari passu in
rights, priority of payment and
collateral with all other present
and future most senior unsecured
indebtedness issued, created or
assumed by you; and
(d) the facts and figures contained in
your audited Consolidated
Financial Reports for the year
ended on 31.12.1994 or in any
other balance sheets, profit and
loss accounts or other financial
statements of yours delivered in
accordance with No. 10 below are
true and correct and present a
true and fair view of your
financial position as at the date
of such facts and figures and or
the results of your operations for
the period(s) therein set out and
your accounts have been prepared
in accordance with generally
accepted accounting principles and
practices consistently applied and
there has been no material adverse
change in the business, property,
assets and financial condition of
yours since such date.
Each of the above representations and
warranties will be correct and complied
with so long as any amount remains
payable under this Facility on each
Interest Payment Date as if repeated
then, except that each reference to
financial statements in subclause (d)
above shall be construed as a reference
to your then latest available financial
statements.
(10) Undertakings: You hereby undertake that:
(a) you furnish to us as soon as
practicable (and in any event not
later than 180 days after the
close of each financial year) your
audited Consolidate Financial
Reports (balance sheet and profit
and loss account);
(b) you supply to us any such
financial information as we may
reasonably request from time to
time;
(c) you advise us in writing with full
particulars of any material
respect in which any of the
representations and warranties set
forth herein cannot at any time be
renewed; and
(d) you will not create nor permit to
be created, unless our prior
written consent has been obtained,
any encumbrances (i.e. mortgages,
pledges, liens, charges or other
similar or equivalent security
interests) upon any of your assets
other than in the ordinary course
of business or in an amount
greater than 250 million US$.
(11) Events of Earlier
Repayment: Upon the occurrence of an important
reason including but not limited to any
of the following events:
(a) you fail to pay any sum due
hereunder at the time, in the
currency and in the manner
specified herein or, if the non-
payment arises by reason of
technical or administrative
difficulties beyond your control,
the nonpayment continues
unremedied for five days from the
due date; or
(b) you fail to perform or to observe
any other obligation under this
letter and such non-performance or
non-observance, if capable of
remedy, continues unremedied for
twenty Business Days after we
shall have given notice thereof to
you; or
(c) any representation, warranty or
statement made or deemed to be
made by you hereunder or made in
any information furnished or
document delivered by you or at
our request (as the case may be)
to us shall prove to have been
incorrect when made or given in
any material respect; or
(d) any present or future indebtedness
(whether contingent or not) or
yours aggregating to US$ 10
million or more shall become due
and payable or capable of being
declared due and payable prior to
the stated maturity thereof or
shall not be paid at the due date
(as extended by any applicable
days of grace set out in the
document constituting such
indebtedness) or any similar
obligation of yours is not
discharged at maturity or when
called unless such indebtedness or
obligation is contested by you in
good faith; or
(e) you file or cause the filing of a
petition in bankruptcy are
adjudicated insolvent or bankrupt,
generally cease paying debts as
they mature, make an assignment
for the benefit of creditors,
apply for or cause the appointment
of a trustee, receiver or
liquidator for you or any
substantial part of your property
or assets, or if a bankruptcy,
reorganization, arrangement,
insolvency, or other similar
proceeding shall be instituted by
or against you under the laws of
any jurisdiction, and in the case
of any such proceeding instituted
against you (but not initiated by
you), either such proceeding shall
remain undismissed or unstayed for
a period of ninety (90) days or
any of the actions sought in such
proceeding (including, without
limitation, the entry of an order
for relief against you or the
appointment of a receiver,
trustee, custodian or similar
official for you or for any
substantial part of your property)
shall occur,
then and in any event, without prior
notice being required (except as
specifically mentioned in this
agreement), and at any time thereafter
we may by notice to you declare that
this Facility together with all interest
accrued thereon and all other amounts
payable hereunder are immediately due
and payable, whereupon the same shall
become immediately due and payable.
(12) Indemnity: You shall fully indemnify us from and
against any expenses, loss, damage or
liability (as to the amount of which a
certificate from us outlining in
reasonable detail such loss, damages or
liability shall, in the absence of
manifest error, be conclusive) which we
reasonably may incur as a consequence of
the occurrence of any event referred to
in No. 11 above or any event which, with
the giving of notice and/or the lapse of
time and/or the fulfillment of any other
condition, would constitute such an
event, or of any failure to borrow on
any date agreed to with us or otherwise
on terms agreed with us, under this
letter. Without prejudice to its
generality, the foregoing indemnity
shall extend to any interest, fees or
other sums whatsoever paid or payable on
account of any funds borrowed in order
to carry any unpaid amount and to any
loss (including loss of profit),
premium, penalty or expense which may be
incurred by us in liquidating or
employing deposits from third parties
acquired to make, maintain or fund this
Facility (or for any part of it) or any
other amount due or to become due under
this letter.
(13) Change in
Circumstances: (a) If any change in any applicable
law or regulation or the
interpretation thereof shall
impose, modify or deem applicable
any reserve requirements against
assets held by us, advances made
or deposits taken by us, and the
result is to increase our costs in
making available this Facility,
then on the thirtieth Business Day
after written demand you shall pay
to us any and all additional
amounts required to compensate us
for such increased costs. In this
event you may prepay this Facility
on the next succeeding Interest
Payment Date by giving us a
preadvice of at least five
Business Days.
(b) If it shall become unlawful for
either party to comply with any of
the provisions of this letter as
the result of the promulgation of
any applicable law, rule or
regulation, or any change therein,
our obligation to allow drawdowns
hereunder will end and, if any
amounts have been drawn down
hereunder, you will repay such
amounts in full on demand on the
tenth Business Day after receipt
by you of such demand or such
other date as is required by the
relevant law, rule or regulation.
(c) Upon the occurrence of any event
described in subclauses (a) and
(b) above, we will during a period
of thirty days take reasonable
steps to transfer this Facility to
another member of the Dresdner
Bank Group or to another financial
institution, provided that such
transfer can be made for such
consideration and on such other
terms so that we or such
transferee suffers no economic,
legal, regulatory or other
disadvantage, with the object of
avoiding the consequence of the
event giving rise to the operation
of sub-clauses (a) and (b) above.
Any expenses reasonably incurred
by us in so doing shall be paid by
you upon delivery to you of a
certificate setting forth in
reasonable detail as to the amount
of such expenses, which, in the
absence of manifest error, shall
be conclusive and binding.
(14) Taxes: All amounts payable by you under this
Facility shall be paid:
(a) free and clear of and without any
deduction or withholding on
account of any tax; and
(b) without deduction or withholding
on account of any other amount,
whether by way of set-off or
otherwise.
If by any law you are unable to pay
without a deduction or withholding, you
will forthwith pay such additional
amount so that the net amount received
by us will equal the full amount which
would have been received had no such
deduction or withholding been made, and
you will furnish to us, within the
period for payment permitted by
applicable law, an official receipt of
the relevant taxation or other
authorities involved for all amounts
deducted or withheld as aforesaid.
If you make a withholding payment under
this Section (14) Taxes in respect of a
payment to us under this Agreement and
we obtain a refund of tax or obtain and
use a credit against tax on overall net
income (a "Tax Credit") which is
attributable to your tax payment, then
we shall reimburse you such amount as
that we determine to be such proportion
of that Tax Credit as will leave us
(after reimbursement) in no better or
worse position in respect of our
worldwide tax liabilities than we would
have been in if no tax payment had been
required. We shall have an absolute
discretion (which shall not unreasonably
be exercised) as to whether to claim any
Tax Credit (and, if we do claim, the
extent, order and manner in which we do
so). We shall be entitled to arrange
and to organize our tax affairs as we
require in our absolute discretion.
(15) Assignment: We are entitled to assign all or any
part of our rights hereunder only to any
other member of the Dresdner Bank Group
provided that we promptly inform you of
any such assignment and further provided
that such assignment shall not result in
any increased cost to you.
(16) Communication: Each communication under this letter
shall be made by telex, facsimile
transmission or otherwise in writing.
Each communication shall be sent,
(i) if to us:
Dresdner Bank AG
Filiale Hoechst
Attn. Mr. Hans-Juergen Stricker
Dalbergstrabe 14
D-65902 Frankfurt am Main
Telephone: 69-3006-201
Telefax: 69-3006-292
Telex:
(ii) if to you:
Hoechst Corporation
Office of Assistant Treasurer
Route 202-206
P.O. Box 2500
Somerville, NJ 08876-1258
Telephone: 908-231-2473
Telefax: 908-231-2039
Telex: --------
(17) Conditions
Precedent: Initial Drawdown under this Facility is
subject to the receipt of the following
documents in form and substance
satisfactory to us:
(a) your constitutive documents
(Articles of By-Laws, etc.) duly
certified;
(b) a Board Resolution duly certified
authorizing you to enter into this
Facility and to conclude the
agreement contained in this letter
and specifying the persons
authorized to execute and deliver
this letter on your behalf;
(c) specimen signatures of all persons
authorized to sign for and on your
behalf all declarations which may
be given under this Facility; and
(d) a legal opinion from counsel
acceptable to us substantially in
the form set out in Exhibit A
hereto.
(18) Governing Law and
Jurisdiction: This letter shall be governed by and
construed in accordance with the laws of
the Federal Republic of Germany. Place
of jurisdiction is Frankfurt/Main.
You shall at all times maintain an agent
for service of process. Such agent
shall be Hoechst AG and any writ,
judgement or other notice of legal
process shall be sufficiently served on
you if delivered to such agent at 65926
Postfach, Brueningstrabe 50, Frankfurt-
Hoechst, Rechtsabteilung, for the time
being. You undertake not to revoke the
authority of the above agent and if, for
any reason, such agent no longer serves
as your agent to receive service of
process, you shall promptly appoint
another such agent and advise us
thereof.
(19) Change of Borrower: You shall be entitled at any time with
our prior written consent (which shall
not unreasonably be withheld) to
substitute as Borrower any other
company, of which more than 51% of the
outstanding capital or voting rights are
directly or indirectly owned by Hoechst
AG, as debtor in respect of all
obligations arising from or in
connection with the loan.
May we kindly ask you to indicate your agreement to the
aforementioned by duly signing both copies of this letter and
returning one copy thereof to us.
Yours faithfully,
Dresdner Bank AG in Frankfurt/Main
/s/ Pulley /s/ Dr. V. Harbou
Pulley Dr. v. Harbou
AGREED:
Date:
/s/ Harry Benz
for and on behalf of Hoechst Corporation
EXHIBIT 20
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
___________________________________
)
In the Matter of )
)
HOECHST AG, ) File No. 951-0090
a corporation. )
)
___________________________________)
AGREEMENT TO HOLD SEPARATE
This Agreement to Hold Separate ("Hold Separate")
is by and among Hoechst Ag ("Hoechst"), The Dow Chemical
Company ("Dow"), Marion Merrell Dow Inc. ("MMD"), and the
Federal Trade Commission ("Commission").
WHEREAS, Hoechst, through its U.S. subsidiary, Dow
and MMD have entered into a Stock Purchase Agreement and
an Agreement and Plan of Merger, both dated May 3, 1995
(collectively "Agreements"), pursuant to which Hoechst
will acquire all of the voting securities of and merge
with MMD ("Merger"); and
WHEREAS, Hoechst, a corporation organized, existing
and doing business under and by virtue of the laws of
Germany, with its office and principal place of business
located at D-65926, Frankfurt am Main, Germany, is
engaged in, among other things, the research,
development, manufacture and sale of pharmaceutical
products; and
WHEREAS, MMD, a corporation organized, existing,
and doing business under and by virtue of the laws of
Delaware, with its office and principal place of business
at 9300 Ward Parkway, Kansas City, Missouri 64114, is
engaged in the research, development, manufacture and
sale of pharmaceutical products; and
WHEREAS, Dow is a corporation organized, existing
and doing business under and by virtue of the laws of
Delaware, with its office and principal place of business
at 2030 Dow Center, Midland, Michigan 48674; and
WHEREAS, the Commission, an independent agency of
the United States Government, established under the
Federal Trade Commission Act, 15 U.S.C. SECTION 41, et seq., is
investigating the Merger to determine whether it would
violate any of the statutes enforced by the Commission;
and
WHEREAS, Hoechst, Dow and MMD have submitted
information to the Commission and intend to cooperate
fully with the Commission in its investigation; and
WHEREAS, Hoechst, Dow and MMD desire to consummate
the Merger as contemplated by the Agreements; and
WHEREAS, the Commission has indicated that it
requires time beyond June 27, 1995, within which to
complete its investigation regarding the competitive
effects of the Merger;
NOW, THEREFORE, Hoechst, Dow and MMD and the
Commission agree as follows:
1. The Commission will cause the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of
1976 to be terminated no later than 11:00 a.m. EST on
June 27, 1995, and will take no action to interfere with
consummation of the Merger as contemplated by the
Agreements (it being understood that Hoechst may acquire
Dow's shares of MMD as soon as June 28, 1995).
2. Hoechst and MMD agree to cooperate with the
Commission in the completion of its investigation by
responding promptly to the requests for documents and
information contained in the "Request for Additional
Information and Documentary Material" that the Commission
issued to Dow (then including MMD) and Hoechst on June 9,
1995 and by making their employees available for
investigational hearings before the Commission upon
reasonable notice. Dow agrees to cooperate with the
Commission in the completion of its investigation by
responding promptly to specific requests for documents
and information and by making its employees available for
investigational hearings before the Commission upon
reasonable notice.
3. If, within 30 days after Hoechst, Dow and MMD
have substantially complied with all Commission requests
as provided for in Paragraph 2, the Commission concludes
that a merger of Hoechst and MMD will tend substantially
to lessen competition with respect to the research,
development, manufacture or sale of certain
pharmaceutical products subject to the Agreement
Containing Consent Order, Hoechst agrees not to contest
that determination, provided that Hoechst and MMD shall
have been afforded an opportunity to meet with officials
within the Commission, including the Directors of the
Bureau of Competition and the Bureau of Economics, and
the Chairman and Commissioners of the Commission.
4. In the event of such determination by the
Commission, Hoechst hereby consents and agrees to be
bound by the terms of an Agreement Containing Consent
Order, in the form attached hereto as Exhibit 1, and not
to challenge the jurisdiction of the Commission to issue
such Order.
5. During the time contemplated by Paragraph 3 of
this Agreement to Hold Separate, in order to preserve the
divestability of the MMD voting securities, Hoechst
agrees that it will not sell, transfer, encumber, or (to
the extent within Hoechst's control) limit or otherwise
impair the marketability or viability of the MMD voting
securities or sell, transfer, encumber, or (to the extent
within Hoechst's control) limit or otherwise impair the
marketability or viability of the underlying MMD assets,
other than in the ordinary course of business. For the
purposes of this Agreement to Hold Separate, "MMD voting
securities" means all shares of MMD common stock, whether
purchased from Dow or otherwise acquired.
6. During the time contemplated by Paragraph 3 of
this Agreement to Hold Separate, in order to ensure the
complete independence and viability of MMD and to assure
that no competitive information is exchanged between MMD
and Hoechst, Hoechst will hold MMD separate and apart on
the following terms and conditions:
a. MMD, as it is presently constituted
(including subsidiaries, divisions, groups and
affiliates controlled by MMD), shall be held
separate and apart and shall be operated
independently of Hoechst (meaning here and
hereinafter, Hoechst excluding MMD); provided
however that Hoechst may exercise only such
direction and control over MMD as is necessary to
assure compliance with this Agreement to Hold
Separate, the Agreement Containing Consent Order,
and the Order; and further provided, however, that
nothing in this subparagraph (a) shall be construed
to preclude Hoechst from providing cash management
services to MMD on a contract basis.
b. Hoechst shall not exercise direction or
control over, or influence, directly or indirectly,
MMD or any of its operations or businesses;
provided however, that Hoechst may exercise only
such direction and control over MMD as is necessary
to assure compliance with this Agreement to Hold
Separate, the Agreement Containing Consent Order,
and the Order; and further provided, however, that
nothing in this subparagraph (b) shall be construed
to preclude Hoechst and MMD from performing any
obligations under the Settlement and Release
Agreement executed between Hoechst and Biovail
Corporation International on April 28, 1995.
c. Hoechst shall maintain the viability and
marketability of the MMD voting securities and the
underlying MMD assets and, other than in the
ordinary course of business, shall not sell,
transfer, encumber, or (to the extent within
Hoechst's control) limit, or otherwise impair the
marketability or viability of the underlying MMD
assets, and shall not sell, transfer, encumber, or
(to the extent within Hoechst's control) limit, or
otherwise impair the marketability or viability of
the MMD voting securities.
d. The MMD Board of Directors shall have
exclusive authority for managing MMD, and shall
consist exclusively of individuals who are not
officers, directors or employees of Hoechst.
e. The individuals on the MMD Board of
Directors shall not be involved in any way in the
research, development, manufacturing, marketing or
selling of pharmaceuticals (other than through
MMD's operations as presently constituted). Each
of these individuals, the management of MMD and
Hoechst, and the directors, officers, or employees
responsible for the operation of MMD will receive
the notification appended as Attachment A hereto.
f. If necessary to assure compliance with the
terms of this Agreement to Hold Separate, the
Agreement Containing Consent Order, and the Order,
Hoechst may, but is not required to, assign an
individual to MMD for the purpose of overseeing
such compliance ("on-site person"). The on-site
person shall have access to all officers and
employees of MMD and such records of MMD as he
deems necessary and reasonable to assure
compliance. Such individual shall enter into a
confidentiality agreement with Hoechst agreeing to
be bound by the terms and conditions of Attachment
A, appended hereto.
g. Except as required by law, and except to
the extent that necessary information is exchanged
in the course of evaluating the merger, defending
investigations or litigation, or negotiating
agreements to divest assets, Hoechst shall not
receive or have access to, or the use of, any
material confidential information about MMD or the
activities of the MMD Board of Directors in
managing the business that is not in the public
domain. Nor shall the MMD Board of Directors, any
individual member of the MMD Board of Directors, or
the on-site person receive or have access to, or
the use of, any material confidential information
about Hoechst's pharmaceutical businesses or
activities not in the public domain. Hoechst may
receive on a regular basis from MMD aggregate
financial information necessary and essential to
allow Hoechst to prepare consolidated financial
reports, tax returns, and personnel reports.
"Material confidential information," as used
herein, means competitively sensitive information,
not independently known to Hoechst from sources
other than the MMD Board of Directors and includes,
but is not limited to, customer lists, price lists,
bidding lists, marketing methods, marketing plans,
sales plans, long range planning documents,
patents, technologies, processes, or other trade
secrets.
h. Hoechst shall not remove or replace any
member of the MMD Board of Directors, or the on-
site person except as provided below:
(1) Hoechst may remove and replace anyone
for cause, death, disability, or resignation
from service with MMD;
(2) Hoechst may remove any member of the
MMD Board of Directors if a conflict of
interest develops in that member's role as a
potential purchaser of the MMD voting
securities or any MMD assets and that member's
role as a Director of MMD;
(3) Hoechst may replace any member of the
MMD Board of Directors or officer of MMD after
providing the Commission with sixty (60) days
advance written notice; and
(4) Hoechst may replace any individual
who interferes in any way with Hoechst's
ability to comply with the terms of this
Agreement to Hold Separate, the Agreement
Containing Consent Order, and the Order.
Provided however, that each individual newly appointed to
the MMD Board of Directors, pursuant to this
subparagraph, must conform to all terms and conditions of
this Agreement.
i. Hoechst shall provide MMD with its share
of working capital as MMD requests from time to
time.
j. Should the Commission seek in any
proceeding to compel Hoechst to divest itself of
the MMD voting securities or the MMD assets subject
to the Agreement Containing Consent Order, Hoechst
shall not raise any objection based on the
expiration of the applicable Hart-Scott-Rodino
Antitrust Improvements Act waiting period or the
fact that the Commission has permitted the merger.
Hoechst also waives all rights to contest the
validity of this Agreement to Hold Separate.
7. During the time contemplated by Paragraph 3 of
this Agreement to Hold Separate, in order to preserve the
divestability of the Hoechst assets subject to the
Agreement Containing Consent Order, Hoechst agrees that
it will not sell, transfer, encumber, limit or otherwise
impair the marketability or viability of the underlying
Hoechst assets subject to the Agreement Containing
Consent Order, other than in the ordinary course of
business.
8. To the extent that this Agreement to Hold
Separate requires Hoechst to take, or prohibits Hoechst
from taking, certain actions which otherwise may be
required or prohibited by contract, Hoechst shall abide
by the terms of the Agreement to Hold Separate, the
Agreement Containing Consent Order and the Order, and
shall not assert as a defense such contract requirements
in a civil penalty action or any other action brought by
the Commission to enforce the terms of this Agreement to
Hold Separate, the Agreement Containing Consent Order or
the Order.
9. For the purpose of determining or securing
compliance with this Agreement to Hold Separate, subject
to any legally recognized privilege, and upon written
request with reasonable notice to Harry R. Benz, Hoechst
Corporation, Route 202-206, P.O. Box 2500, Somerville, NJ
08876, Hoechst's United States subsidiary, Hoechst
(which, for purposes of this paragraph only, includes
MMD), shall permit any duly authorized representative or
representatives of the Commission:
a. Access during the office hours of Hoechst
and in the presence of counsel to inspect and copy
all books, ledgers, accounts, correspondence,
memoranda, and other records and documents in the
possession or under the control of Hoechst relating
to compliance with this Agreement to Hold Separate;
b. Upon five (5) days' notice to Hoechst, and
without restraint or interference from Hoechst, to
interview officers or employees of Hoechst, who may
have counsel present, regarding any such matters.
10. This Agreement to Hold Separate shall not be
binding until approved by the Commission.
FEDERAL TRADE COMMISSION HOECHST AG
/s/ Jay C. Shaffer /s/ Dr. KG Seifert
Jay C. Shaffer Dr. KG Seifert
Acting General Counsel Member of the Board
and
/s/ Dr. P. Schuster
Dr. P. Schuster
General Counsel
/s/ William C. Pelster
William C. Pelster
Joel M. Mitnick
Skadden, Arps, Slate,
Meagher & Flom
Counsel for Hoechst AG
THE DOW CHEMICAL COMPANY
/s/ Jane M. Gootee
Jane M. Gootee
Assistant General Counsel
/s/ Robert E. Bloch
Robert E. Bloch
Scott P. Perlman
Mayer, Brown & Platt
Counsel for The Dow
Chemical Company
MARION MERRELL DOW INC.
/s/ Edward H. Stratameier
Edward H. Stratameier
Vice President and
Assistant General
Counsel
Dated: June 26, 1995 Donald S. Clark
ATTACHMENT A
NOTICE OF HOLD SEPARATE
AND REQUIREMENT FOR CONFIDENTIALITY
Hoechst AG ("Hoechst") has entered into a Hold
Separate Agreement with the Federal Trade Commission
relating to the to be acquired interest in Marion Merrell
Dow Inc. ("MMD"). Until after the Commission completes its
investigation, MMD must be managed and maintained as a
separate, ongoing business, independent of all other
competing businesses of Hoechst. All competitive
information relating to MMD must be retained and maintained
by the persons responsible for the management of MMD on a
confidential basis and such persons shall be prohibited from
providing, discussing, exchanging, circulating, or otherwise
furnishing any such information to or with any other person
whose employment involves any competing Hoechst
pharmaceutical business. Similarly, all such persons
responsible for the management of Hoechst's competing
pharmaceutical businesses shall be prohibited from
providing, discussing, exchanging, circulating or otherwise
furnishing competitive information about such businesses to
or with any person responsible for MMD.
Any violation of the Hold Separate Agreement may
subject Hoechst to civil penalties and other relief as
provided by law.
EXHIBIT 21
PROXY
In connection with the Stock Purchase Agreement,
dated as of May 3, 1995 (the "Stock Purchase Agreement"),
among Hoechst Corporation, a Delaware corporation, H Pharma
Acquisition Corp., a Delaware corporation ("Acquisition"),
The Dow Chemical Company, a Delaware corporation ("TDCC"),
RH Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of TDCC, and Dow Holdings Inc., a Delaware
corporation and a wholly owned subsidiary of TDCC, the
undersigned hereby grants Acquisition an irrevocable proxy
and irrevocably appoints Acquisition or its designee, with
full power of substitution, its attorney and proxy to vote
all of the 65,931,690 shares (the "Proxy Shares") of common
stock, par value $0.10 per share, of Marion Merrell Dow
Inc., a Delaware corporation (the "Company"), being sold,
transferred and delivered to Acquisition by TDCC pursuant to
the Stock Purchase Agreement on the date hereof, at any
meeting of the stockholders of the Company, however called,
or in connection with any action by written consent by the
stockholders of the Company. The undersigned acknowledges
and agrees that (i) this proxy is coupled with an interest
and is irrevocable and shall not be terminated by operation
of law or otherwise upon the occurrence of any event and
(ii) the undersigned shall not hereafter grant or give any
proxies with respect to the Proxy Shares to any other person
(and if so granted or given), such other proxy shall be null
and void and of no effect).
DATED: June 28, 1995
THE DOW CHEMICAL COMPANY
By: /s/ Enrique C. Falla
Name: Enrique C. Falla
Title: Executive Vice
President and Chief
Financial Officer
PROXY
In connection with the Stock Purchase Agreement,
dated as of May 3, 1995 (the "Stock Purchase Agreement"),
among Hoechst Corporation, a Delaware corporation, H Pharma
Acquisition Corp., a Delaware corporation ("Acquisition"),
The Dow Chemical Company ("TDCC"), a Delaware corporation,
RH Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of TDCC ("RHAC"), and Dow Holdings Inc., a
Delaware corporation and a wholly owned subsidiary of TDCC,
the undersigned hereby grants Acquisition an irrevocable
proxy and irrevocably appoints Acquisition or its designee,
with full power of substitution, its attorney and proxy to
vote all of the 55,934,100 shares (the "Proxy Shares") of
common stock, par value $0.10 per share, of Marion Merrell
Dow Inc., a Delaware corporation (the "Company"), being
sold, transferred and delivered to Acquisition by RHAC
pursuant to the Stock Purchase Agreement on the date hereof,
at any meeting of the stockholders of the Company, however
called, or in connection with any action by written consent
by the stockholders of the Company. The undersigned
acknowledges and agrees that (i) this proxy is coupled with
an interest and is irrevocable and shall not be terminated
by operation of law or otherwise upon the occurrence of any
event and (ii) the undersigned shall not hereafter grant or
give any proxies with respect to the Proxy Shares to any
other person (and if so granted or given), such other proxy
shall be null and void and of no effect).
DATED: June 28, 1995
RH ACQUISITION CORP.
By: /s/ Eric P. Blackhurst
Name: Eric P. Blackhurst
Title: Vice President
PROXY
In connection with the Stock Purchase Agreement,
dated as of May 3, 1995 (the "Stock Purchase Agreement"),
among Hoechst Corporation, a Delaware corporation, H Pharma
Acquisition Corp., a Delaware corporation ("Acquisition"),
The Dow Chemical Company ("TDCC"), a Delaware corporation,
RH Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of TDCC, and Dow Holdings Inc., a Delaware
corporation and a wholly owned subsidiary of TDCC ("DHI"),
the undersigned hereby grants Acquisition an irrevocable
proxy and irrevocably appoints Acquisition or its designee,
with full power of substitution, its attorney and proxy to
vote all of the 75,000,000 shares (the "Proxy Shares") of
common stock, par value $0.10 per share, of Marion Merrell
Dow Inc., a Delaware corporation (the "Company"), being
sold, transferred and delivered to Acquisition by DHI
pursuant to the Stock Purchase Agreement on the date hereof,
at any meeting of the stockholders of the Company, however
called, or in connection with any action by written consent
by the stockholders of the Company. The undersigned
acknowledges and agrees that (i) this proxy is coupled with
an interest and is irrevocable and shall not be terminated
by operation of law or otherwise upon the occurrence of any
event and (ii) the undersigned shall not hereafter grant or
give any proxies with respect to the Proxy Shares to any
other person (and if so granted or given), such other proxy
shall be null and void and of no effect).
DATED: June 28, 1995
DOW HOLDINGS INC.
By: /s/ Enrique C. Falla
Name: Enrique C. Falla
Title: President
