CONFIDENTIAL TREATMENT
Note: Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Commission under Rule 24b-2. The omitted
confidential material has been filed separately with the Commission. The
location of the omitted confidential information is indicated herein by an "X".
SECOND AMENDMENT TO PURCHASE AGREEMENT
This SECOND AMENDMENT, dated as of December 9, 2000 (the "Second
Amendment"), to the PURCHASE AGREEMENT dated as of March 20, 2000, as amended by
the First Amendment dated as of June 30, 2000 (the "Agreement"), by and among
AMERICAN CYANAMID COMPANY, a Maine Corporation ("Cyanamid"), AMERICAN HOME
PRODUCTS CORPORATION, a Delaware corporation ("AHP" and, together with Cyanamid,
"Sellers"), and BASF Aktiengesellschaft, a corporation organized under the laws
of Germany ("Buyer"). All terms not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto have heretofore entered into the Agreement;
WHEREAS, the parties hereto have entered into the First Amendment to
the Purchase Agreement effective as of June 30, 2000 (the "First Amendment");
WHEREAS, the parties hereto desire to further amend the Agreement
as provided in this Second Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, and for
other good and valuable consideration, the parties hereto, intending to be
legally bound, agree as follows:
1. With respect to certain Joint Venture Interests, the Agreement is
hereby amended as follows:
(i) by adding to Section 3.4(d) of the Agreement the words
"Transferable Joint Venture Interests, and the" before the
word "Other" in the second line of such Section; and
(ii) by deleting from Section 3.4(d) of the Disclosure Schedule the
first paragraph and substituting in lieu thereof the language
set forth on Annex I to this Second Amendment.
Buyer hereby agrees (i) to pay all out-of-pocket costs related to the
formation of any new companies and all transfer taxes, fees, duties
(excluding income and net worth taxes) and other out-of-pocket costs
related to the changes and actions set forth in Annex I hereto, but
only to the extent that such costs exceed the costs that would have
been incurred had such changes and actions not occurred, and (ii) that
any breach of any representation, warranty or covenant of Sellers
contained in the Agreement occurring as a result of such actions or
changes shall be deemed not to have occurred and shall not entitle
Buyer to any right, remedy or recourse against Sellers or their
Affiliates in respect thereto.
2. With respect to certain pension liabilities, and for purposes of
clarification only, the Agreement is hereby amended as follows:
(i) by adding an "(a)" before the word "Seller" in the first
line of Section 7.14 (which is set forth in Section 16 of
the First Amendment); and
(ii) by inserting new paragraphs (b), (c),(d), (e) and (f) to
Section 7.14 as follows:
"(b) For purposes of this Section 7.14 only, the
definitions set forth on Annex II to the Second
Amendment shall apply to the defined terms used in
this Section 7.14.
(c) Pension liabilities with respect to Active Employees
and Vested Employees are included in the Excluded
Liabilities and shall remain Sellers' responsibility.
Sellers shall promptly reimburse Buyer or its
Affiliates for any payments made by Buyer or its
Affiliates either to Active Employees or Vested
Employees for pension benefits under the pension plan
maintained on their behalf as in effect on the
Closing Date, together with an amount for reasonable
administration costs incurred with respect to such
payment.
(d) Pension liabilities with respect to Retirees are
included in the Assumed Liabilities and shall be
Buyer's responsibility. Buyer shall promptly
reimburse Sellers or their Affiliates for any
payments made by Sellers or their Affiliates to
Retirees for pension benefits under the pension plan
maintained on their behalf, together with an amount
for reasonable administration costs incurred with
respect to such payment.
(e) Pension liabilities for those employees of XXXX who
are not Transferred Employees remain with XXXX, are
included in the Assumed Liabilities and shall be
Buyer's responsibility. Buyer shall promptly
reimburse Sellers or their Affiliates for any
payments made by Sellers or their Affiliates to such
employees for pension benefits under the pension plan
maintained on their behalf, together with an amount
for reasonable administration costs incurred with
respect to such payment.
(f) Sellers and Buyer shall establish reasonable and
adequate procedures to keep each other regularly and
in a timely manner informed about any requests for
reimbursement of pension benefits as outlined in
paragraphs (c), (d) and (e) above."
Within thirty (30) days after the date of this Second Amendment,
Sellers shall provide Buyer with a complete list of the Transferred
Employees which upon such delivery shall be deemed to be Annex III to
this Second Amendment.
3. The Agreement is hereby amended by inserting after the word "claim"
in the ninth line of such Section 11.2(a) the following:
"; provided that the failure of the Aggrieved Party to give such notice
or any delay thereof shall not affect the Aggrieved Party's rights to
indemnification hereunder, except to the extent such failure or delay
impairs the Indemnifying Party's ability to defend or contest any such
claim, action, proceeding or litigation"
4. The Agreement is hereby amended by deleting the period at the end of
paragraph (viii) of Section 11.1(a) and substituting in lieu thereof ";
or" and by inserting the following language following paragraph (viii)
of Section 11.1(a):
"(ix) any liability, other than an Assumed Liability or an Excluded
Liability, of a Company to the extent arising out of the conduct of a
business, other than the Business, by such Company prior to the
Closing, except in the event that such liability relates to an asset
held by such Company at Closing (other than assets held by a Company at
Closing which are not Assets and which are subsequently transferred by
Buyer or its Affiliates to Sellers or their Affiliates) and such asset
or liability is reflected in the Financial Statements or the Closing
Statement."
5. The Agreement is hereby amended by deleting from paragraph (b) of
Exhibit A the reference to "XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX."
6. Pursuant to Section 3.5(c) of the Agreement, the parties hereby
agree that the Final Net Asset Value shall be $XXXXXXXXXXXXX. In
connection therewith, the Purchase Price adjustment to be paid by
Buyer to Sellers pursuant to Section 3.5(c)of the Agreement shall
be reduced by $XXXXXXXXXX, the amount of the pension accrual
referred to in Section 27 of the First Amendment, resulting in a final
Purchase Price adjustment to be paid by Buyer to Sellers of
$XXXXXXXXXXX. Further in connection therewith, the parties agree
that Buyer shall not be entitled to seek indemnification under
Section 7.5 or Article 11 of the Agreement for (i) any matter
contained in the Notice of Disagreement, (ii) any matter relating
to the Notice of Disagreement presented to Sellers up to and
including December 8, 2000, and (iii) any matter discussed up to
and including December 8, 2000 in connection with (i) or (ii) above,
and (iv) the effect of any of the foregoing on the
representations, warranties, agreements and covenants contained in
the Agreement.
7. The parties hereby agree that the Allocation pursuant to Section
7.5(d)(iii) of the Agreement shall be mutually agreed to by the
parties.
8. The Agreement is hereby amended by inserting after the word "bonus"
in the second line of each of Sections 9.4(a)(iv) and 9.6(h) the
following:
"(other than the 2000 Bonus Plan attached as Annex V to the
Second Amendment)"
9. Exhibit A to the Agreement is amended by deleting "XXXXXXXXXXXXXX
XXXXXXXXXXXX." from Section (b) of Exhibit A (Companies) and adding
it to Section (a) of Exhibit A (Asset Transferor Entities). Buyer
hereby agrees (i) to pay all out-of-pocket costs related to the
formation of any new companies and all transfer taxes, fees, duties
(excluding income and net worth taxes) and other out-of-pocket costs
related to the changes and actions set forth above, but only to the
extent that such costs exceed the costs that would have been incurred
had such changes and actions not occurred, and (ii) that any breach
of any representation, warranty or covenant of Sellers contained in
the Agreement occurring as a result of such actions or changes shall
be deemed not to have occurred and shall not entitle Buyer to any
right, remedy or recourse against Sellers or their Affiliates in
respect thereto.
10. This Second Amendment shall be governed in all respects, including
validity, interpretation and effect, by the internal laws of the
State of New York.
11. The parties hereto agree that the U.S. District Court for the Southern
District of New York shall have exclusive jurisdiction over any dispute
or controversy arising out of or in relation to this Second Amendment
and any judgment, determination, arbitration award, finding or
conclusion reached or rendered in any other jurisdiction shall be null
and void between the parties hereto. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security
that might be required of any other party with respect thereto.
12. This Second Amendment may be executed in one or more counterparts which
together shall constitute a single agreement. If any provisions of this
Second Amendment shall be held to be illegal, invalid or unenforceable
under any applicable law, then such contravention or invalidity shall
not invalidate the entire Second Amendment. Such provision shall be
deemed to be modified to the extent necessary to render it legal, valid
and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Second Amendment shall be construed as
if not containing the provision held to be invalid, and the rights and
obligations of the parties shall be construed and enforced accordingly.
13. This Second Amendment constitutes an amendment to the Agreement
pursuant to Section 12.4 of the Agreement. Except as expressly amended
by the First Amendment and this Second Amendment, each and every
provision of the Agreement remains in full force and effect in
accordance with the terms thereof and, by reference, the terms and
provisions of the Agreement are incorporated herein and made a part
hereof.
IN WITNESS WHEREOF, this Second Amendment has been signed by each of
the parties hereto as of the date provided above.
AMERICAN CYANAMID COMPANY
By: _______________________________________
Name:
Title:
AMERICAN HOME PRODUCTS CORPORATION
By: _______________________________________
Name:
Title:
BASF AKTIENGESELLSCHAFT
By: _______________________________________
Name:
Title:
BASF AKTIENGESELLSCHAFT
By: _______________________________________
Name:
Title:
