EXHIBIT 2.6
A. Prot. 2002/146
dated December 5, 2002 of the Notary
Dr. Alexander Gutmans, Basel (Switzerland)
NOTARIAL DEED
FIFTH AMENDMENT TO PURCHASE AGREEMENT
Negotiated at Basel/Switzerland this 5th (fifth) day of December 2002 (two
thousand and two).
Before me, the undersigned Notary Public
DR. ALEXANDER GUTMANS
at Basel/Switzerland appeared today:
1. MR. PHILIPP RUPP, born June 10, 1970, lawyer, Swiss citizen, domiciled at
CH-4058 Basel, Rebgasse 21, known by person,
according to his declarations acting not in his own name, but without
assuming any personal liability in the name and on behalf of
BASF AKTIENGESELLSCHAFT, a German stock corporation with registered
head office at DE-67056 Ludwigshafen, registered with the Commercial
Register at the local court of Ludwigshafen under HRB 3000, with
reference to a power of attorney, dated December 5, 2002, faxed copy
of which was presented to the notary and is attached to this Deed. The
original of such power of attorney will be provided by the represented
party in due course and will be attached to this Deed,
- hereinafter referred to as "SELLER" -
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2. DR. HENRIK BAUWENS, born July 12, 1971, attorney at law, German citizen,
with business address at DE-60311 Frankfurt am Main, Bethmannstrasse
50-54, known by person,
according to his declarations acting not in his own name but released from
the restrictions of Section 181 BGB in the name and on behalf of
ABBOTT LABORATORIES, 100 Abbott Park Road, Abbott Park, Illinois
60053-3500, USA, according to the attached power of attorney dated May
14, 2001 with notarial certification of signature and apostille, the
attached certification dated May 14, 2001 with notarial certification
of signature and apostille and the attached Certificate of Incumbency
dated May 14, 2001 with notarial certification of signature and
apostille,
- hereinafter referred to as "PURCHASER" -
The acting Notary Public has drawn the attention of the persons appearing to the
fact, that he could in part not examine the authenticity of the signatures and
that he could not examine the representative capacity of the persons who
purported to have signed the powers of attorney. Nevertheless the persons
appearing insisted on the immediate notarization and released each party from
submitting subsequently other documents evidencing or supporting the
representative capacity.
The acting Notary advised the persons appearing that a notary who or whose
partners in the law firm have formerly acted as legal advisors to one of the
parties involved in the matter to be notarized would not be entitled to take
office as a notary in the matter at hand pursuant to Section 233 Sect. 1(4) of
the Introductory Act of the Canton Basel-City relating to the Swiss Civil Code
which provision corresponds with the so-called "Vorbefassungsverbot" under the
German Act of Notarization (Section 3 Sect. 1(7)). The acting Notary states that
he himself and his firm have not been involved in the matter at hand in the
meaning of said provisions. By approving the present Agreement, the Parties
hereto shall confirm such statement of the acting Notary.
The persons appearing requested this Deed including its Exhibits, Schedules and
Appendices to be recorded in the English language. The acting Notary Public who
is in sufficient command of the English language ascertained that the persons
appearing are also in command of the English language. After having been
instructed by the acting Notary, the persons appearing waived the right to
obtain the assistance of a sworn interpreter and to obtain
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a certified translation of this Deed including the Exhibits, Schedules and
Appendices hereto.
The persons appearing asked for the Notarization of the following
FIFTH AMENDMENT TO PURCHASE AGREEMENT
WHEREAS,
Seller and Purchaser are parties to that certain Purchase Agreement dated as of
December 14, 2000 (Number 194 of the Roll of Deeds for 2000 of Dr. Norbert
Meister, Notary Public, at Frankfurt am Main), as amended thereafter by the
Amendment to Purchase Agreement dated as of March 2, 2001 (Number 226 of the
Roll of Deeds for 2001 of Dr. Gerhard Pilger, Notary Public, at Frankfurt am
Main) (the "FIRST AMENDMENT"), the Second Amendment to the Purchase Agreement
dated as of May 18, 2001 (Number 56 of the Roll of Deeds for 2001 of Dr. Norbert
Meister, Notary Public, at Frankfurt Am Main) (the "SECOND AMENDMENT"), the
Agreement and Third Amendment to Purchase Agreement dated as of July 24, 2001
(Number 741 of the Roll of Deeds for 2001 of Dr. Gerhard Pilger, Notary Public,
at Frankfurt am Main) (the "THIRD AGREEMENT") and the Agreement dated as of
March 11, 2002 (Number 188 of the Roll of Deeds for 2002 of Dr. Gerhard Pilger,
Notary Public, at Frankfurt am Main) (the "FOURTH AMENDMENT") (collectively, the
"PURCHASE AGREEMENT"), pursuant to which Purchaser and its Affiliates acquired
the Shares and Transferred Patents and a certain license. Capitalized terms used
herein have the meanings ascribed to them in the Purchase Agreement unless
otherwise defined herein.
WHEREAS,
Seller and Purchaser have agreed to certain matters incidental to the actions to
be taken by the parties subsequent to the Closing regarding the adjustment of
the Aggregate Purchase Price as provided for in SECTIONS 9 AND 10 of the
Purchase Agreement and the Third Amendment.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants hereinafter contained,
the parties to the Purchase Agreement hereby agree as follows:
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1. ADJUSTMENT TO THE AGGREGATE PURCHASE PRICE.
Seller and Purchaser hereby acknowledge and agree that in accordance with
the provisions set forth in SECTIONS 9 AND 10 of the Purchase Agreement and
in the Third Amendment the initial aggregate purchase price for the Shares
and Transferred Patents and the license granted in SECTION 25.1 of the
Purchase Agreement consisting of Six Billion Nine Hundred Thirty Million
United States Dollars (USD$6,930,000,000.00) was adjusted upward by the
parties in the additional amount of One Billion Three Hundred Thirty-Two
Million Two Hundred Fifty-Four Thousand Euros (EUR 1,332,254,000.00)
("ADJUSTED ADDITIONAL PURCHASE PRICE").
2. PAYMENT OF THE ADDITIONAL PURCHASE PRICE.
Seller hereby acknowledges and agrees that Purchaser has paid in full the
Adjusted Additional Purchase Price to Seller.
3. ALLOCATION OF THE ADJUSTED ADDITIONAL PURCHASE PRICE.
The parties hereby agree that the Adjusted Additional Purchase Price shall
be allocated as set forth in Exhibit 1 to this Fifth Amendment.
4. NOTICES.
All notices, statements and other communications to be given with respect
to this Fifth Amendment shall be in the English language and sent by
registered mail, by facsimile transmission or by messenger to the parties
at the following addresses or at such other addresses as shall be specified
by the parties:
If to Seller: BASF Aktiengesellschaft
Central Legal Department
67056 Ludwigshafen, Germany
Telefax: 49-621-60-20410
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If to Purchaser: Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60053-3500
Telefax: 1-847-938-6277
Attn: General Counsel
5. ENTIRE AGREEMENT; WRITTEN FORM.
(a) As amended by this Fifth Amendment, the Purchase Agreement shall
remain in full force and effect and shall constitute the entire
agreement of the parties with respect to the subject thereof and
hereof and supersede all other prior agreements and undertakings both
written and oral among the parties with respect to the subject matter
thereof and hereof. In the event of any translation of this Fifth
Amendment, the English version shall govern.
(b) Any changes in this Fifth Amendment including, but not limited to,
this clause shall only be valid if made in writing and executed by
both Seller and Purchaser or, if necessary, in a stricter form.
(c) Neither party hereto waives any rights it may have under the Purchase
Agreement, including any and all rights under SECTIONS 15 AND 18 of
the Purchase Agreement, or otherwise under applicable law in
connection with the Fifth Amendment or the subject matter hereof, all
of which rights are hereby expressly reserved.
6. ASSIGNMENT.
Neither Seller nor Purchaser may assign any rights or obligations under
this Fifth Amendment to any third party without the consent of the
respective other party.
7. GOVERNING LAW; JURISDICTION.
(a) This Fifth Amendment shall be governed by and construed in accordance
with the laws of the Federal Republic of Germany, without regard to
its choice of law rules.
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(b) All disputes arising out of or in connection with this Fifth
Amendment, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
in accordance with the Rules of the German Institute of Arbitration
e.V.(DIS) without recourse to the ordinary courts of law, provided
that the Chairman of the Arbitral Tribunal shall not be of the same
nationality as that of any of the parties to a given dispute. The
place of arbitration shall be Frankfurt, Germany; the language of the
arbitration shall be English.
8. EXPENSES; TAXES.
(a) Each party shall bear its own expenses and fees (including attorneys',
accountants', consultants' and advisors' fees) in connection with this
Fifth Amendment or any of the actions contemplated herein.
(b) Fees and costs triggered by the implementation of this Fifth
Amendment, including but not limited to, any notarial fees, any
transfer or sales Tax (including any value added Tax and stamp duties
and property transfer Tax according to SECTION 5 PARA 3
Grunderwerbssteuergesetz), any registration or publication fees shall
be borne by Purchaser.
(c) Seller shall bear any capital gain Taxes realized under the tax laws
of Colombia as a result of the additional purchase price allocated to
the Shares of Knoll Colombiana S.A. Laboratorios Farmaceuticos. Seller
hereby authorizes Purchaser to pay on its behalf any such capital gain
Taxes and shall promptly reimburse Purchaser for any such capital gain
Taxes.
(d) Purchaser hereby acknowledges and agrees that as a result of the
downward adjustment of the purchase price allocated to the shares of
Knoll Productos Quimicos e Farmaceuticos Ltda. and Quimica Knoll de
Mexico S.A. de C.V., Seller shall be entitled to receive any refund of
capital gain and withholding Taxes previously paid by Seller to the
authorities of Brazil and Mexico.
9. AMENDMENT OF SEPARATE SALE AND TRANSFER CONTRACTS.
Seller and Purchaser hereby agree and covenant that they shall, or shall
cause their Affiliates to, do and take all actions that are necessary or
appropriate, including, without limitation, amending the existing "Separate
Sale and Transfer Contracts" (as
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defined in SECTION 7.1 of the Purchase Agreement), for the purpose of
reflecting the agreed upon Adjusted Additional Purchase Price and its
allocation as set forth in Exhibit 1 to this Fifth Amendment for the
following countries: (i) Argentina, (ii) Australia, (iii) Brazil, (iv)
Belgium, (v) Columbia, (vi) Mexico, (vii) The Netherlands, (viii) Turkey,
and (ix) the United Kingdom with respect to both Lupharma UK Holding II,
Ltd. and Knoll Ltd.
10. SEVERABILITY.
Should any of the provisions of this Fifth Amendment be or become fully or
partly invalid or unenforceable, the remainder of the Fifth Amendment shall
be valid or enforceable. The invalid or unenforceable provision shall be
replaced by a provision which shall come as close as possible to the
economic purpose of the invalid provision. Any gaps in this Fifth Amendment
shall be filled by a provision which the parties as prudent businessmen
would in good faith have agreed to, had they considered the matter not
covered by this Fifth Amendment.
11. EFFECTIVE DATE.
Seller and Buyer hereby agree that this Fifth Amendment will be effective
as of November 29, 2002.
12. NOTARIAL DEED.
The parties hereby agree to formalize this Fifth Amendment in a Swiss
notarial deed which will cause legal effects in accordance with the laws of
the Federal Republic of Germany.
IN WITNESS THEREOF this Notarial Deed including the Exhibit has been read aloud
to the persons appearing and was confirmed and approved by the persons
appearing. The persons appearing then signed this Deed. All this was done at the
day herebelow written in the presence of me, the Notary Public, who also signed
this Deed and affixed my official Seal.
Basel, this 5th (fifth) day of December 2002 (two thousand and two)
/s/ Philipp Rupp
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/s/ H. Bauwens
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/s/ Dr. Alexander Gutmans, Notary Public
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Dr. Alexander Gutmans, Notary Public
A. Prot. 2002/146 [SEAL]