EXHIBIT 4.3



 









Exhibit 4.3




Share and Asset Purchase Agreement




dated as of July 16, 2004



by and among



Roche Holding AG, Grenzacherstrasse 124, 4058 Basel, Switzerland (hereinafter Roche Holding)




Roche Finanz AG, Grenzacherstrasse 122, 4070 Basel, Switzerland (hereinafter Roche Finanz)




Roche Pharmholding B.V., Beneluxlaan 2A, 3446 GR Woerden, The Netherlands (hereinafter Roche NL)




Roche Deutschland Holding GmbH, Emil-Barell-Strasse 1, 79639 Grenzach-Wyhlen, Germany (hereinafter
Roche Deutschland)



Hoffmann - La Roche
France SAS, 52, Boulevard du Parc, 92521 Neuilly sur Seine CEDEX, France
(hereinafter HLRF), Roche SAS, 52 Bld du Parc, 92521 Neuilly sur Seine, CEDEX, France (hereinafter
RSAS), and Laboratoires Syntex SA, 52 Bld du Parc, 92521 Neuilly sur Seine, CEDEX, France
(hereinafter Syntex, and together with HLRF and RSAS Roche France)



the companies listed in Schedule (A), each of which is directly or indirectly controlled
by Roche Holding (hereinafter each an Asset Seller Company and collectively the Asset Seller
Companies)



(each of the companies set forth above, including each of the Asset Seller Companies, hereinafter
a Seller and collectively the Sellers)



and




Bayer HealthCare AG, Bayerwerk, 51368 Leverkusen, Germany (hereinafter BHC)




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for and on behalf of itself and for and on behalf of certain of its Affiliates to be designated by
BHC to accede as buyer hereunder in accordance with Article 3.4 (hereinafter, BHC and each such
designee a Buyer and collectively the Buyers)



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Table of Contents




	 	 	 	 	 	 
	1.	Definitions	 	 	12	 
	2.	Object of Sale/Licence	 	 	12	 
	2.1	Sale and Transfer of Shares	 	 	12	 
	2.2	Sale and Transfer of Assets and Contracts and Assumption of Obligations and Liabilities	 	 	13	 
	2.2.1	Sale and Transfer of Assets and Contracts	 	 	13	 
	2.2.2	Assumption of Obligations and Liabilities	 	 	18	 
	2.3	Sale and Transfer of US Trademarks	 	 	20	 
	2.4	[Intentionally Omitted]	 	 	20	 
	2.5	Licence	 	 	20	 
	2.6	Consideration	 	 	21	 
	2.7	Purchase Price and Inter-Company Obligations Adjustments	 	 	22	 
	2.7.1	Closing Balance Sheet	 	 	22	 
	2.7.2	Purchase Price Adjustments	 	 	26	 
	2.7.3	Inter-Company Obligations Adjustment	 	 	28	 
	2.7.4	Payment of Net Working Capital Adjustment, Net Debt Adjustment, Provision and
Liability Adjustment and Inter-Company Obligations Adjustment	 	 	28	 
	2.7.5	Exclusive Adjustment Procedures	 	 	29	 
	2.8	Allocation of Purchase Price	 	 	30	 
	3.	Actions Prior to Closing	 	 	30	 
	3.1	General	 	 	30	 
	3.2	Filings and Submissions	 	 	30	 
	3.3	Estimated Net Working Capital / Estimated Net Debt / Estimated Inter-Company
Obligations / Estimated Provision and Liability Amount	 	 	31	 
	3.4	Buyers’ Designation of the Legal Entities Receiving the Transferred Orion Assets	 	 	31	 
	3.5	Escrow of Data Room Documentation	 	 	32	 
	3.6	Closing Memorandum	 	 	32	 
	3.7	Completion / Update of Schedules	 	 	32	 
	3.8	Transferred Orion Contracts	 	 	33	 
	3.9	Real Estate Sale and Transfer Agreement Grenzach	 	 	34	 
	4.	Closing	 	 	34	 
	4.1	Date and Place	 	 	34	 
	4.2	Conditions Precedent to Closing	 	 	35	 
	4.2.1	Conditions to Obligations of Each Party	 	 	35	 
	4.2.2	Conditions to Obligations of Buyers	 	 	35	 
	4.2.3	Conditions to Obligations of Sellers	 	 	36	 
	4.2.4	Waiver of Non-satisfied Conditions	 	 	37	 






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	4.2.5	Right of Termination	 	 	37	 
	4.2.6	Deferred Closing / Local Closings	 	 	38	 
	4.3	Closing Actions	 	 	40	 
	4.3.1	Actions by the Sellers	 	 	40	 
	4.3.2	Actions by Buyers	 	 	41	 
	4.3.3	Joint Actions by the Parties	 	 	42	 
	5.	Representations and Warranties	 	 	44	 
	5.1	Representations and Warranties of Sellers	 	 	44	 
	5.2	Representations and Warranties of Buyers	 	 	44	 
	5.3	Exclusive Representation and Warranties	 	 	44	 
	6.	Remedies	 	 	45	 
	6.1	Remedies of Buyers	 	 	45	 
	6.1.1	Sellers Right to Cure and Sellers’ Liability	 	 	45	 
	6.1.2	Notice of Breach	 	 	45	 
	6.1.3	Term of Representations and Warranties	 	 	46	 
	6.1.4	Exclusion of Liability	 	 	47	 
	6.1.5	Third Party Claims	 	 	49	 
	6.2	Remedies of Sellers	 	 	49	 
	6.3	Remedies Exclusive	 	 	49	 
	7.	Conduct of Business between Signing and Closing	 	 	50	 
	7.1	General	 	 	50	 
	7.2	Access to the Orion Business	 	 	51	 
	7.3	Restricted Actions	 	 	51	 
	8.	Separation	 	 	54	 
	8.1	Principles Applicable to Separation	 	 	54	 
	8.2	Separation Costs	 	 	55	 
	8.3	Transitional Agreements / Termination of Intra-Group Manufacturing and Supply Agreements	 	 	56	 
	9.	Indemnities	 	 	57	 
	9.1	Indemnifications by Sellers	 	 	57	 
	9.2	Indemnification by Buyers	 	 	58	 
	9.3	Tax	 	 	58	 
	9.4	Environment	 	 	60	 
	9.4.1	Environmental Investigations	 	 	60	 
	9.4.2	Sellers’ Liability for Material Existing Contaminations	 	 	62	 
	9.4.3	Grenzach	 	 	64	 
	9.4.4	Insurance	 	 	65	 
	9.4.5	Asbestos Related Claims	 	 	66	 
	9.4.6	Environmental Liability of Buyers	 	 	66	 






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	10.	Other Covenants	 	 	66	 
	10.1	Press Releases and Other Public Announcements	 	 	66	 
	10.2	Undertakings	 	 	67	 
	10.3	Assignments / Change of Control Clauses of the Transferred Orion Contracts	 	 	67	 
	10.4	Change of Control Clauses of Contracts to Which an Orion Company is a Party	 	 	69	 
	10.5	Assignment of Trademarks With the Consent of a Third Party Only	 	 	70	 
	10.6	Recording of Assignment	 	 	71	 
	10.7	Corporate Name, Trademarks and Domain Names	 	 	72	 
	10.8	Transferred Employees	 	 	74	 
	10.9	Management Incentive Plans	 	 	79	 
	10.10	Document Retention and Access	 	 	79	 
	10.11	Safety Data and Clinical Documentation	 	 	81	 
	10.12	Insurance	 	 	81	 
	10.13	Non-Competition	 	 	82	 
	10.14	Inter-company Trade Balances	 	 	84	 
	10.15	No Recourse Against Directors	 	 	84	 
	10.16	Further Assurances	 	 	85	 
	10.17	Set-off Rights 	 	 	85	 
	10.18	Supply of Products to the Roche Group	 	 	85	 
	10.19	Several Liability and Assumption of Liability	 	 	86	 
	10.20	Returned Goods	 	 	86	 
	10.21	Trademarks Registered in Japan	 	 	86	 
	10.22	Trademarks Retained by Sellers / Switches / Disposals	 	 	87	 
	10.23	Option Regarding IBM Maintenance Agreement	 	 	88	 
	10.24	SIGEM	 	 	88	 
	10.25	Impairment of Orion Manufacturing Sites	 	 	88	 
	10.26	Capital Expenditures	 	 	88	 
	11.	Limitations on Sellers’ Liability	 	 	89	 
	12.	Pension and Benefit Plans	 	 	91	 
	12.1	Pension Plans	 	 	91	 
	12.2	Benefit Plans	 	 	91	 
	13.	Taxes, Costs, Expenses and Interest	 	 	91	 
	13.1	Taxes	 	 	91	 
	13.1.1	VAT	 	 	91	 
	13.1.2	Other Taxes	 	 	92	 
	13.1.3	Tax Returns	 	 	93	 
	13.1.4	Disputes	 	 	93	 
	13.2	Costs and Expenses	 	 	94	 
	13.3	Interest	 	 	94	 






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	14.	General Provisions	 	 	94	 
	14.1	Effect on Third Parties	 	 	94	 
	14.2	Notices	 	 	94	 
	14.3	Sellers’ Representative and Buyers’ Representative	 	 	96	 
	14.4	Entire Agreement	 	 	96	 
	14.5	Amendments and Waivers	 	 	96	 
	14.6	No Assignment	 	 	96	 
	14.7	Severability	 	 	96	 
	14.8	Confidentiality	 	 	97	 
	14.9	Execution	 	 	98	 
	15.	Governing Law and Dispute Settlement	 	 	98	 
	15.1	Governing Law	 	 	98	 
	15.2	Dispute Settlement	 	 	98	 






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Table of Schedules




	 	 	 	 	 
	Number of	 	 
	Schedule	 	Name of Schedule | Annex
	 
	 	 	 	 
	(A)	 	Asset Seller Companies
	 
	 	 	 	 
	1	 	Definitions
	 
	 	 	 	 
	2.1	 	Excluded Japanese Trademarks
	 
	 	 	 	 
	2.2.1(a)(i)	 	Transferred Orion Trademarks
	 
	 	 	 	 
	2.2.1(a)(ii)	 	Transferred Orion Other Intellectual Property Rights
	 
	 	 	 	 
	2.2.1(a)(iii)	 	Transferred Orion Product Registrations
	 
	 	 	 	 
	2.2.1(a)(iv)	 	Transferred Orion Manufacturing Know How
	 
	 	 	 	 
	2.2.1(a)(v)	 	Transferred Orion Clinical Documentation
	 
	 	 	 	 
	2.2.1(a)(vi)	 	Transferred Orion Marketing and Promotional Documents
	 
	 	 	 	 
	2.2.1(a)(viii)	 	Transferred Orion Manufacturing Sites
	 
	 	 	 	 
	2.2.1(a)(ix)	 	Transferred Orion Tangible Property
	 
	 	 	 	 
	2.2.1(a)(x)	 	Transferred Orion Governmental Authorizations
	 
	 	 	 	 
	2.3	 	US Trademarks
	 
	 	 	 	 
	2.5	 	Licence
	 
	 	 	 	 
	2.6(a)(i)	 	Excerpted OTC Segment Financial Information
	 
	 	 	 	 
	2.6(a)(ii)	 	Historical Orion Financial Statements
	 
	 	 	 	 
	2.6(a)(iii)	 	Unaudited Extraction Statement
	 
	 	 	 	 
	2.6(a)(iv)	 	Orion Balance Sheet (including the Preparation Guide)






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	Number of	 	 
	Schedule	 	Name of Schedule | Annex
	 
	 	 	 	 
	2.7.1(a)(1)	 	Net Working Capital / Net Debt / Provision and Liability Amount
	 
	 	 	 	 
	2.7.1(a)(2)	 	Closing Balance Sheet
	 
	 	 	 	 
	2.8(a)	 	Allocation of Purchase Price
	 
	 	 	 	 
	3.4	 	Preliminary Designation of Local Purchasing Entities
	 
	 	 	 	 
	3.5	 	Escrow Agreement
	 
	 	 	 	 
	3.9	 	Form of Agreement relating to Grenzach
	 
	 	 	 	 
	4.2.1(a)	 	Governmental Approvals / Notifications
	 
	 	 	 	 
	5.1	 	Sellers’ Representations and Warranties
	 
	 	 	 	 
	

	 	Annex 5.1.1(a)
	 	Corporate Information Orion Companies
	 
	 	 	 	 
	

	 	Annex 5.1.1(b)
	 	Shareholders of Orion Companies
	 
	 	 	 	 
	

	 	Annex 5.1.1(e)
	 	Cash Pool / Control / Profit & Loss Transfer Agreements
	 
	 	 	 	 
	

	 	Annex 5.1.2(c)
	 	Profit and Loss Items for the Financial Year 2003 and First Quarter 2004 / Profit and Loss Items for the Financial Year 2001 and 2002
	 
	 	 	 	 
	

	 	Annex 5.1.2(d)
	 	Normalization Adjustments
	 
	 	 	 	 
	

	 	Annex 5.1.2(e)
	 	Stand Alone Adjustments
	 
	 	 	 	 
	

	 	Annex 5.1.2(h)
	 	Statutory Annual Accounts of the Orion Companies
	 
	 	 	 	 
	

	 	Annex 5.1.3(f)
	 	Impacts On Sales
	 
	 	 	 	 
	

	 	Annex 5.1.7
	 	Transferred Orion Assets Subject To Liens
	 
	 	 	 	 
	

	 	Annex 5.1.8(a)(i)
	 	Real Property Owned






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	Number of	 	 
	Schedule	 	Name of Schedule | Annex
	 
	 	 	 	 
	

	 	Annex 5.1.8(a)(ii)
	 	Real Property Lease Agreement(s)
	 
	 	 	 	 
	

	 	Annex 5.1.9
	 	Orion Companies Tangible Property
	 
	 	 	 	 
	

	 	Annex 5.1.11(a)
	 	Orion Companies Manufacturing Know How
	 
	 	 	 	 
	

	 	Annex 5.1.11(b)
	 	Orion Companies Trademarks
	 
	 	 	 	 
	

	 	Annex 5.1.11(c)
	 	Orion Companies Patents
	 
	 	 	 	 
	

	 	Annex 5.1.11(d)
	 	Orion Companies Other Intellectual Property Rights
	 
	 	 	 	 
	

	 	Annex 5.1.12(a)
	 	Orion Companies Product Registrations
	 
	 	 	 	 
	

	 	Annex 5.1.13(e)
	 	Number of Employees of Orion Companies
	 
	 	 	 	 
	

	 	Annex 5.1.20
	 	Non-Compliance
	 
	 	 	 	 
	

	 	Annex 5.1.21
	 	ACMS
	 
	 	 	 	 
	5.2	 	Buyers’ Representations and Warranties
	 
	 	 	 	 
	6.1.4(a)(iii)	 	Data Room Indices
	 
	 	 	 	 
	8.1(a)	 	Separation Step Plan / Da Vinci/Rembrandt Project Charter
	 
	 	 	 	 
	8.3(a)(i)	 	Global Transitional Services Agreement
	 
	 	 	 	 
	8.3(a)(ii)	 	Frame Supply Agreements
	 
	 	 	 	 
	8.3(a)(iii)	 	Manufacturing Agreements
	 
	 	 	 	 
	8.3(a)(iv)	 	IT Services Agreement
	 
	 	 	 	 
	10.2	 	Undertakings
	 
	 	 	 	 
	10.4	 	Orion Companies Contracts with Change of Control Clauses
	 
	 	 	 	 
	10.5(a)	 	Assignment of Trademarks with Consent of Third Party






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	Number of	 	 
	Schedule	 	Name of Schedule | Annex
	 
	 	 	 	 
	through (c)	 	Trademark Authority
	 
	 	 	 	 
	10.8(a)	 	Transferred Employees
	 
	 	 	 	 
	10.11	 	Pharmacovigilance Agreement
	 
	 	 	 	 
	10.21	 	Japanese OTC Trademarks
	 
	 	 	 	 
	10.23	 	IBM Maintenance Agreement
	 
	 	 	 	 
	12.1	 	Pension Plans
	 
	 	 	 	 
	12.2	 	Benefit Plans






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WHEREAS





	 	(A)	 	Sellers conduct the OTC segment of the Roche Group’s pharmaceutical
business, comprising that of developing, researching, manufacturing and
commercializing pharmaceutical over-the-counter products, including,
according to the qualification of local laws and regulations, certain food
supplement, medical device, cosmetic and prescription drug products, all
as reflected in the OTC Segment Information as presented in the Roche
Annual Report 2003, (a) with the elimination of (i) the OTC segment of the
Roche Group’s pharmaceutical business in the United States of America,
including the joint venture between the Roche Group and Bayer AG, in
particular relating to Aleve®, (ii) the OTC segment of the Roche Group’s
pharmaceutical business in Japan, including that of the former OTC
segment of the Roche Group’s pharmaceutical business and that of Chugai
Pharmaceutical Co. Ltd. and its subsidiaries, (iii) the OTC segment of
Chugai Pharmaceutical Co. Ltd. and its subsidiaries outside Japan; and (iv)
the rights of the Roche Group and any successor and assignee or licensee
to develop and market in the OTC market an OTC version of the Roche
Group’s prescription anti-obesity drug Xenical® and (b) with the inclusion
of the five (5) manufacturing sites in Gaillard/Pau (France), Grenzach
(Germany) (to the extent specified in the Preparation Guide), Pilar
(Argentina), Jakarta-Cimanggis (Indonesia) and Casablanca-Technopole
(Morocco) (such business and the respective assets and liabilities as
specified in Articles 2.1, 2.2.1 and 2.2.2 hereinafter the Orion
Business).
	 
	 	(B)	 	The Orion Business has been fully integrated into the Roche Group’s
pharmaceutical division and is in the process of being separated from the
Roche Group.
	 
	 	(C)	 	Sellers, through one of their Affiliates, hold certain OTC trademarks
registered in the U.S., which are identical to those being part of the Orion
Business (the US Trademarks, as further specified hereinafter).
	 
	 	(D)	 	Sellers desire to sell, and Buyers desire to buy, subject to the terms and
conditions of this Share and Asset Purchase Agreement (this
Agreement),
(1) the Orion Business, such business consisting of the full equity interest
in the Orion Companies (as hereinafter defined) and certain rights,
properties and assets (together with certain liabilities) owned or leased by,
or licensed to, the Asset Seller Companies (as more fully set forth in
Articles 2.2.1 and 2.2.2 hereof) and used exclusively (unless specified



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	 		 	otherwise in this Agreements) with respect to the Orion Business, and (2) the US
Trademarks.
	 
	 	(E)	 	Sellers and Buyers intend to cooperate closely between the date hereof
and the Closing, and, to the extent necessary or useful to achieve the
purposes of this Agreement thereafter, to separate the properties, assets,
rights and facilities of the Orion Business held by the Asset Seller
Companies from such companies on the basis of the Separation Step Plan
(as defined in this Agreement and amended in accordance with Article 8.1)
and transfer such properties, assets, including Know How, rights and
facilities to Buyers in order to enable Buyers, subject to the manufacture,
supply and/or services to be provided by FHLR and/or its Affiliates under
the terms and conditions of the Transitional Agreements, to conduct the
Orion Business in the countries in which such business is active
substantially in the manner presently conducted.
	 
	 	(F)	 	In those countries or markets in which the Roche Group is operating the
respective part of the Orion Business on the basis of agreements with
independent third parties acting as distributors, Buyers intend, in certain
cases yet to be agreed, to continue to operate such part of the Orion
Business on such basis following the Closing.
	 
	 	(G)	 	Prior to executing this Agreement, Buyers have conducted a due diligence
review with respect to the documentation and information referenced in the
Data Room Indices, including the Vendor Due Diligence Reports prepared
by PricewaterhouseCoopers LLP (UK) dated April 2004, as amended and
referenced in the Data Room Indices.





	 	 	   Now, therefore, the parties hereto agree as follows:





	1.	 	Definitions





	 	 	Capitalized terms used in this Agreement shall have the meaning assigned to them in
Schedule 1.





	2.	 	Object of Sale / Licence





	 	  2.1	 	Sale and Transfer of Shares





	 	   (a)	 	Subject to the terms and conditions of this Agreement, Roche NL, Roche
France, Roche Deutschland and Roche Finanz hereby agree



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	 	 	 	to sell and, at the Closing or, as the case may be, at the Local Closing, to convey,
assign, transfer and deliver to Buyers, and Buyers hereby agree to buy and, at the
Closing or, as the case may be, at the Local Closing, acquire from Roche NL, Roche
France, Roche Deutschland and Roche Finanz, the full legal and beneficial ownership, free
and clear from any Liens, of all of the shares (the Orion
Shares) of:





	 	(i)	 	Roche Consumer Health AG, Wurmisweg, 4303 Kaiseraugst, Switzerland
(hereinafter RCH);
	 
	 	(ii)	 	Laboratoires Roche Nicholas SAS, Gaillard, France (hereinafter
LRN), together with forty-seven point ninety-six (47.96)
percent of the shares of Société
Immobilère de Gaillard d’Economie Mixte (SIGEM) (hereinafter
SIGEM), unless, with
respect to SIGEM, Buyers request, in accordance with Article 10.24, that Sellers
retain the respective participation;
	 
	 	(iii)	 	Roche Consumer Health Deutschland GmbH, D-65817 Eppstein, Germany
(hereinafter RCHD), together with the shares of MM Media & Marken Vertriebs-GmbH, a
company one hundred (100) percent owned by RCHD; and
	 
	 	(iv)	 	Roche Immobilière Maroc SARL d’associé unique, Casablanca, Morocco
(hereinafter RIM, and together with RCH, LRN, SIGEM (unless retained by Sellers),
RCHD, MM Media & Marken Vertriebs-GmbH the Orion Companies);





	 	(b)	 	The parties agree that the Trademarks registered in Japan in the name of RCH, all
as set forth in Schedule 2.1, shall not be part of the transactions contemplated
under this Article 2.1 (a) and shall, prior to Closing, be transferred from RCH to an
entity controlled by the Roche Group.





	 	 2.2	 	Sale and Transfer of Assets and Contracts and Assumption of Obligations and
Liabilities





	 	2.2.1	 	Sale and Transfer of Assets and Contracts





	 	(a)	 	Subject to the terms of this Agreement, each of the Asset Seller Companies hereby
agrees to sell and, at the Closing or, as the case



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	 	 	 	may be, at the Local Closing, to convey, assign, transfer and deliver to Buyers, and Buyers hereby
agree to buy and, at the Closing or, as the case may be, at the Local Closing, acquire and accept
from each of the Asset Seller Companies, all of the Asset Seller Companies’ right, title and
interest in and to the following rights, properties and assets (but excluding the Excluded Assets
and the Shared Intellectual Property Rights) of the Asset Seller Companies, as and to the extent
existing, subject to the Sellers’ obligations set forth in Articles 7.1, 7.3 and Buyers’ rights in
Article 10.25, at the Closing, or as the case may be, at the Local Closing (such rights, properties
and assets hereinafter collectively referred to as the Transferred Orion Assets and together with
the Orion Shares as the Orion Assets), free and clear of any Liens (other than Permitted Liens),
including, where applicable, all rights, properties and assets relating to applications, filings,
notices and other equivalent legal positions:





	 	(i)	 	subject to Article 10.5 and 10.7, the Trademarks used or registered exclusively with respect
to the operation of the Orion Business, all as set forth in Schedule 2.2.1(a)(i)
(the Transferred Orion Trademarks) as well as any related common law trademark rights and
trade dress, including Ausstattungsrechte and packaging design rights, excluding, however,
the (corporate) names, trademarks (including the Roche housemark) and the domain names of
«Roche» or «Syntex» as well as the hexagon used in connection with the businesses of the
Roche Group and the Roche Group’s packaging family design;
	 
	 	(ii)	 	the domain names and rights pertaining to software used exclusively with respect to the
operation of the Orion Business, all as set forth in Schedule 2.2.1(a)(ii) (the
Transferred Orion Other Intellectual Property Rights);
	 
	 	(iii)	 	to the extent transferable, the product registrations, marketing rights and the
applications therefor, to the extent such registrations, rights and applications relate
exclusively to the operation of the Orion Business, all as set forth or referenced in
Schedule 2.2.1(a)(iii) (the Transferred Orion Product Registrations), together with
the supporting documentation, including, but not limited to, the pertaining registration
dossiers,



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	 	 	 	clinical trial documents, adverse events reports, historical adverse events data and
periodic safety update reports;
	 
	 	(iv)	 	the Know How relating to the manufacturing used exclusively with respect to the operation of
the Orion Business, all as set forth in Schedule 2.2.1(a)(iv) (the Transferred Orion
Manufacturing Know How);
	 
	 	(v)	 	the clinical documentation, including R&D procedures (to the extent not covered by the
delivery obligation set forth in Article 2.2.1(a)(iii)), contained in the Asset Seller
Companies’ clinical databases to the extent such data is used exclusively with respect to the
operation of the Orion Business, all as set forth in Schedule 2.2.1(a)(v) (the
Transferred Orion Clinical Documentation);
	 
	 	(vi)	 	the marketing and promotional documents, such as customer lists, marketing and promotional
plans, documents and materials, field force training manuals and materials, and placebo or
demonstration kits documents, together with all Intellectual Property Rights pertaining
thereto, to the extent owned by the Asset Seller Companies, that are used exclusively with
respect to the operation of the Orion Business, all as further specified in Schedule
2.2.1 (a)(vi) (the Transferred Orion Marketing and Promotional Documents);
	 
	 	(vii)	 	the worldwide safety reports, including complete safety reporting data and adverse event
reporting, relating exclusively to the operation of the Orion Business (the Transferred Orion
Worldwide Safety Reports);
	 
	 	(viii)	 	the real property (including the buildings, structures and improvements located thereon,
fixtures contained therein and the appurtenances thereto) and the equipment, machinery and
other tools, all as pertaining to the manufacturing plants located in Grenzach (Germany) (as
specified in the Preparation Guide), Pilar (Argentina) and Jakarta-Cimanggis (Indonesia), as
further specified in Schedule 2.2.1(a)(viii) (the Transferred Orion Manufacturing
Sites);



15








 






	 
	 	(ix)	 	all Tangible Property used exclusively with respect to the operation of the Orion Business,
all as set forth in Schedule 2.2.1(a)(ix) (the Transferred Orion Tangible Property);
	 
	 	(x)	 	to the extent transferable, all of the governmental authorizations, including manufacturing
licences, relating exclusively to the Asset Seller Companies’ operation of the Orion Business
or necessary to the Asset Seller Companies’ use, ownership or operation of the Orion Business
and all pending applications therefor or renewals thereof, all as set forth in Schedule
2.2.1(a)(x) (the Transferred Orion Governmental Authorizations);
	 
	 	(xi)	 	as identified in accordance with Article 3.8, and subject to Article 10.3, all contracts and
agreements to which an Asset Seller Company is a party and which relate exclusively to the
operation of the Orion Business (the Transferred Orion Contracts);
	 
	 	(xii)	 	Inventory, whether in location, in transit or on consignment at the Closing or, as the case
may be, at the Local Closing, used by the Asset Seller Companies exclusively with respect to
the Orion Business;
	 
	 	(xiii)	 	all accounts receivable of the Asset Seller Companies arising exclusively out of the Asset
Seller Companies’ operation of the Orion Business;
	 
	 	(xiv)	 	copies of all financial records, ledgers, sales invoices, accounts and payable records,
files (including complete personnel files relating to the Transferred Employees), books,
correspondence,
including customer data and sales records, to the extent possible in addition by giving
access in electronic form, which relate exclusively to, and are relevant for, the operation
of the Orion Business;
	 
	 	(xv)	 	insurance claims and moneys received thereunder to the extent (1) such claims and moneys are
(y) either a surrogate of any of the assets to be transferred pursuant to the Schedules to
this Article 2.2.1(a), as of the date hereof, the Closing or, as the



16









 






	 	 	 	case may be, the Local Closing or (z) related to business interruptions for the time
period after the Closing or, as the case may be, the Local Closing and (2) not reflected
in the purchase price adjustments pursuant to Article 2.7.2;
	 
	 	(xvi)	 	all other rights, properties and assets of whatever nature, real or personal,
tangible or intangible, that are owned or leased by, or licensed to, the Asset Seller
Companies on the Closing or, as the case may be, on the Local Closing, and used
exclusively with respect to the operation of the Orion Business; and
	 
	 	(xvii)	 	any assets relating to pension matters not otherwise reflected under Article
2.2.1(a)(i) to (xvi), to the extent necessary to implement the parties’ obligations set
forth in Article 12.1 and the respective Schedule thereto;





	 	 	 	it being understood that with respect to Transferred Orion Assets relating to products containing
Naproxen as an active ingredient, “exclusive” shall relate to the Orion Business as operated by
the respective Asset Seller Companies in the relevant countries; and it being further understood
that all Schedules to this Article 2.2.1(a) will be updated by the Sellers to the extent
necessary, within the limits of Articles 7.1 and 7.3, to reflect changes to such Schedules between
the date hereof and the Closing or, as the case may be, the Local Closing.





	 	(b)	 	Notwithstanding anything to the contrary in this Article 2.2.1(a) or elsewhere in this
Agreement:





	 	(i)	 	all assets related to the operation of the OTC segment of the Roche Group’s
pharmaceutical business in the United States of America, including the joint venture
between the Roche Group and Bayer AG, in particular relating to Aleve®, other than as
expressly specified in Article 2.3;
	 
	 	(ii)	 	all assets related to the operation of the OTC segment of the Roche Group’s
pharmaceutical business in Japan, including that of the former OTC segment of the Roche
Group’s pharmaceutical business and that of Chugai Pharmaceutical Co. Ltd. and its
subsidiaries;



17









 






	 	(iii)	 	all assets related to the OTC segment of Chugai Pharmaceutical Co.
Ltd. and its subsidiaries outside Japan; and
	 
	 	(iv)	 	the rights of the Roche Group and any successor and assignee or
licensee to develop and market in the OTC market an OTC version of the Roche
Group’s prescription anti-obesity drug Xenical®;





	 	 	 	(the assets set forth in this Article 2.2.1(b)(i) through (iv) collectively the
Excluded Assets);
	 
	 	 	 	are not part of the sale and purchase contemplated hereunder, are excluded from the
Transferred Orion Assets and shall remain the exclusive property of Sellers.
	 
	 	(c)	 	Except to the extent otherwise agreed in this Agreement or any
agreement to be entered into pursuant to this Agreement, and without
prejudice to the licence granted under Article 2.5, the parties agree
that any existing licence of the Roche Group to the Orion Business or
vice versa, the subject matter of which is a Trademark, Know How or
any other Intellectual Property Right to be transferred under this
Article 2.2.1, shall be considered terminated upon consummation of
the transactions contemplated under this Agreement, including the
consummation of Sellers’ obligations under Article 10.16.
	 
	 	(d)	 	Buyers acknowledge that the Roche Group may continue for its own
legitimate business reasons, subject to Article 10.13, to own and
make use for itself or for use by authorized third parties certain
information that is identical to that contained in the Transferred Orion
Assets, including, but not limited to, in the Transferred Orion
Manufacturing Know How, the Transferred Orion Clinical
Documentation, the Transferred Orion Worldwide Safety Reports and
the general and financial records, which is relevant for the research,
development, manufacture, control, packaging or release, marketing
or sale of products of the Roche Group (other than the Orion
Business).





	 	2.2.2	 	Assumption of Obligations and Liabilities





	 	(a)	 	Subject to the terms set forth in this Agreement, including those set forth in
the provisions of (i) through (iii) of this Article 2.2.2(a), at the



18









 






	 	 	 	Closing or, as the case may be, at the Local Closing, Buyers shall assume and thereafter pay,
perform and discharge when due, all of the following obligations and liabilities of the Asset
Seller Companies (such obligations and liabilities the Assumed
Orion Liabilities):





	 	(i)	 	all obligations and liabilities of the Asset Seller Companies relating exclusively
to the Transferred Orion Assets or exclusively to the conduct of the Orion Business (but
not contracts not identified as Transferred Orion Contracts in accordance with Article
3.8) arising on, before or after the Closing or, as the case may be, the Local Closing;
	 
	 	(ii)	 	all obligations and liabilities of the Asset Seller Companies reflected on the
Final Closing Balance Sheet; and
	 
	 	(iii)	 	all obligations and liabilities of the Asset Seller Companies arising out of, or
relating to, the Transferred Orion Contracts arising on, before or after the Closing or,
as the case may be, the Local Closing.





	 	(b)	 	Notwithstanding anything to the contrary in this Article 2.2.2(a) or elsewhere in this
Agreement, Buyers shall not assume or otherwise be responsible for any obligations or
liabilities of the Asset Seller Companies relating to, arising out of or in connection with,
the Excluded Assets and any of the following (such obligations and liabilities collectively
the Excluded Liabilities):





	 	(i)	 	all obligations and liabilities of the Asset Seller Companies relating to pension
and post employment matters of the Transferred Employees accruing prior to Closing or, as
the case may be, the Local Closing, except to the extent set forth in Article 12 and the
schedules thereto;
	 
	 	(ii)	 	all payment obligations (Zahlungsverpflichtungen) of the Asset Seller Companies with
respect to Transferred Employees and any other employees of the Asset Sellers Companies
and their Affiliates under Article 10.8(j) and Article 10.8(o); and
	 
	 	(iii)	 	any other obligation or liability of the Asset Seller Companies which is the
responsibility of Sellers under this Agreement.





19









 







	 	2.3	 	Sale and Transfer of US Trademarks
	 
	 	 	 	Subject to the terms and conditions of this Agreement, Sellers hereby agree to cause HLR
Consumer Health, Inc. to sell and, at the Closing, to convey, assign, transfer and deliver to
Buyers, and Buyers hereby agree to buy and, at the Closing, acquire and accept from HLR
Consumer Health, Inc., all of HLR Consumer Health, Inc.’s right, title and interest in and to
the Trademarks set forth in Schedule 2.3, as and to the extent existing, subject to
the obligations set forth in Articles 7.1 and 7.3, at the Closing or, as the case may be, the
Local Closing (such trademarks hereinafter the US Trademarks).
	 
	 	2.4	 	[Intentionally Omitted]
	 
	 	2.5	 	Licence





	 	(a)	 	Subject to the terms and conditions of this Agreement, Sellers hereby agree to grant
to BHC, as of Closing, a worldwide (excluding Japan), non-exclusive, irrevocable and
royalty-free licence for those Patents (the Shared Patents) and that Know How (the Shared
Know How, and together with the Shared Patents the Shared Intellectual Property Rights)
of the Roche Group which are not exclusively related to the Orion Business (but are also
related to the businesses retained by the Roche Group) but are necessary for the Orion
Business to continue to produce and market those products (the Existing Products) of the
Orion Business that (i) are invoiced to third parties as at the Closing or (ii) are
specifically identified as being under development in the Orion Business Plan, all as set
forth in Schedule 2.5. The licence with respect to such rights shall be limited
in its scope to the field of developing, manufacturing, testing, packaging, processing
and marketing any OTC products, including the Existing Products, and, within such scope
and field, shall include the right to sublicence such rights to any third party. Buyers
shall, and shall cause their Affiliates, including the Orion Business, to (i) impose upon
any such sublicensee confidentiality obligations equivalent to those applicable under or
in connection with this Agreement or any agreement executed pursuant hereto and (ii)
notify to Sellers the identity of such sublicensee prior to the grant of the sublicence
in accordance herewith.



20









 






	 	(b)	 	Sellers shall not, and shall cause their Affiliates not to, assert against any
entity being part of the Orion Business any cause of action based upon infringement of
(i) any Patents of the Roche Group existing or applied for as at Closing or (ii) Know How
existing as at Closing, in each case based on activity of the Orion Business that is
necessary to continue to develop, manufacture, test, package, process, and market
Existing Products following the Closing, either itself or through a third party acting
for the Orion Business.





	 	2.6	 	Consideration





	 	(a)	 	The consideration for the Orion Business and the US Trademarks (the Purchase Price)
payable by Buyers to Sellers at Closing or, as the case may be, the Local Closing in
accordance with Article 4.3.2(a), subject to the purchase price adjustments set forth in
Article 2.7, has been determined by taking into account, amongst others, (i) the
Excerpted OTC Segment Financial
Information, (ii) the Historical Orion Financial Statements, (iii) the Unaudited
Extraction Statement, (iv) the audited Orion Balance Sheet (together with the
Preparation Guide, based on which such balance sheet has been prepared and established)
(each of (i) through (iv) as at December 31, 2003, attached hereto as Schedules
2.6(a)(i) through (iv) and collectively referred to herein as the Orion Transaction
Financials), (v) the Confidential Information Memorandum and (vi) the Disclosure
Documents, and shall consist of:





	 	(i)	 	a fixed amount of euro two billion one hundred and sixty-five million
(EUR 2,165,000,000) (the Fixed Purchase Price Component), including the net working
capital level of CHF 358,665,000 (the Net Working Capital Level); plus
	 
	 	(ii)	 	the Estimated Net Working Capital, determined in accordance with Article
3.3(a), minus the Net Working Capital Level, whereby the calculated amount (the
Estimated NWC Difference) can be a positive or a negative number, as the case may
be, but if it is a positive number, it shall in no event exceed ten (10) percent of
the Net Working Capital Level; minus
	 
	 	(iii)	 	the Estimated Net Debt determined in accordance with Article 3.3(b);
minus



21









 





	 	(iv)	 	the Estimated Provision and Liability Amount determined in accordance
with Article 3.3(c);





	 	 	 	(the Estimated NWC Difference minus the Estimated Net Debt minus the Estimated Provision
and Liability Amount hereinafter referred to as the Estimated Purchase Price Component;
for the avoidance of doubt, at Closing, the Estimated Purchase Price Component shall be
established as if all of the Orion Assets, Transferred Employees and Assumed Orion
Liabilities to be transferred under this Agreement had been transferred to Buyers on such
date, regardless of whether Closing in fact has been effected in respect of all of the
Orion Assets, Transferred Employees and Assumed Orion Liabilities).
	 
	 	(b)	 	The Purchase Price set forth above does not include any VAT (or equivalent tax) or
transfer Taxes, which shall be paid and reimbursed in accordance with, and pursuant to,
Article 13.1.1 and 13.1.2.





	 	2.7	 	Purchase Price and Inter-Company Obligations Adjustments
	 
	 	2.7.1	 	Closing Balance Sheet





	 	(a)	 	Within sixty (60) Business Days after the Closing, or, if at the Closing, in
accordance with Article 4.2.6, not all of the Orion Assets have been transferred, within
forty (40) Business Days after the last Local Closing, Sellers shall prepare, mandate
PricewaterhouseCoopers AG, Basel, Switzerland (PwC) to audit, and deliver to Buyers the
audited statements of the specified assets and specified liabilities of the Orion
Business transferred as of the Closing, and in respect of any of the specified assets and
specified liabilities transferred at a Local Closing, as of the respective Local Closing
(such audited statements, together with the unaudited aggregated statement thereof, the
Closing Balance Sheet, and, upon having become final and binding in accordance with this
Article 2.7.1, the Final Closing Balance Sheet), together with a determination of the Net
Working Capital, the Net Debt and the Provision and Liability Amount, each calculated by
reference to the aggregate of the respective line items shown on the Closing Balance
Sheet as further specified in Schedule 2.7.1(a)(1). In the event that on June
30, 2005, the only assets that remain to be transferred hereunder are, in the view of
both parties, not material to the transactions contemplated



22









 






	 	 	 	hereunder, the parties shall negotiate in good faith on whether to establish a preliminary
Closing Balance Sheet, including a mechanism to preliminarily adjust the Purchase Price in
accordance with Article 2.7.2. Buyers shall cooperate with Sellers in connection with, shall
furnish to Sellers all such information and give Sellers, PwC and any of their advisers promptly
full and unfettered access (during ordinary business hours) to the books, records and personnel of
the Orion Business as Sellers may reasonably require for, the preparation of the Closing Balance
Sheet; provided, however, that Buyers acknowledge that Sellers shall have the
exclusive responsibility for preparing the Closing Balance Sheet. Sellers shall prepare, establish
and deliver to Buyers, for informational purposes only, within thirty (30) Business Days after the
Closing an unaudited statement of the specified assets and specified liabilities of the Orion
Business as of the Closing, and with respect to the Closing and each Local Closing, Sellers shall
prepare, establish and deliver to Buyers, for informational purposes only, within thirty (30)
Business Days after the Closing and the respective Local Closing unaudited statements of the
specified assets and specified liabilities transferred as of the Closing or the Local Closing.
The statements referred to in the preceding sentence shall be prepared in the same form as the
Closing Balance Sheet detailed by country and FGAR accounts. Except to the extent set forth in
Schedule 2.7.1(a)(2), the Closing Balance Sheet shall be prepared and established in
accordance with the accounting policies set forth in the Preparation Guide and the hierarchy set
forth therein, which were also used in the preparation and establishment of the Orion Balance Sheet
(for the avoidance of doubt, the Preparation Guide shall take precedence over the Orion Balance
Sheet in case of errors made in the Orion Balance Sheet), and on the basis of facts existing and
events occurring on or before the Closing, and in respect of any of the specified assets and
specified liabilities transferred at a Local Closing, on the basis of facts existing and events
occurring on or before the respective Local Closing, only;
provided, however, that, for the sake of
clarity, it is understood that the Closing Balance Sheet shall exclude pensions plans, other
post employment benefits, termination benefits, severance and long term indemnities as well
as stock options and other equity compensation benefits and related items, which shall be
exclusively governed by Articles 12.1 and 12.2 and the respective Schedules thereto. In the event
that the Closing or, as the case may be, the respective Local Closing does not occur at a financial
month



23









 





	 	 	 	end for accounting purposes, the parties shall agree on mutually acceptable roll forward or
roll back procedures. The cost and expenses of the preparation and the audit of the Closing
Balance Sheet shall be borne by Sellers.





	 	(b)	 	Unless Buyers give notice (the Notice of Disagreement) to Sellers
within forty-five (45) Business Days following receipt of the Closing
Balance Sheet that they disagree with the determination of the Net
Working Capital and/or Net Debt and/or the Provision and Liability
Amount as shown on the Closing Balance Sheet, which notice shall
describe the nature of any such disagreement in reasonable detail
considering the information available to Buyers, identify the specific
line item(s) involved and the CHF amount of each such disagreement
and provide reasonable supporting documentation for such
disagreement, the determination of the Net Working Capital and Net
Debt and the Provision and Liability Amount shall be deemed final
and binding on the parties; provided, however, that it shall be
understood and agreed that any errors or omissions made in the
Closing Balance Sheet as delivered by Sellers to Buyers under
Article 2.7.1(a) in respect of the Net Working Capital and Provision
and Liability Amount which in the aggregate amount to less than
CHF 2,000,000 and CHF 1,000,000, respectively, shall not entitle
Buyers to a Notice of Disagreement hereunder and, accordingly, to a
purchase price reduction under Article 2.7.2. It shall be agreed and
understood that Buyers, upon Sellers having delivered the Closing
Balance Sheet pursuant to Article 2.7.1(a), shall have full and
unfettered access (during ordinary business hours) to all working
papers of PwC and underlying papers and documents of Sellers used
in the preparation of the Closing Balance Sheet and the responsible
personnel at PwC and Sellers.
	 
	 	(c)	 	The parties shall endeavour to resolve in good faith any
disagreement with respect to the Net Working Capital and/or Net
Debt and/or the Provision and Liability Amount within twenty (20)
Business Days after Sellers’ receipt of the Notice of Disagreement. If
the parties are unable to do so, either party may submit such
disagreement at any time thereafter for final and binding resolution to
an experienced partner of the accounting department of an
internationally recognized accounting firm (other than KPMG or PwC)
(the Appraiser) agreed upon by the parties, or, if such agreement
has not occurred within a further five (5) Business Days after one



24









 




	 	 	 	party has given notice to the other that agreement cannot be reached, to the Appraiser
nominated by the director (Direktor) of the Zurich Chamber of Commerce upon application of
either Sellers or Buyers on behalf of both parties.
	 
	 	(d)	 	The Appraiser shall act as an expert (Schiedsgutachter) as that term
is defined in section 258 of the Zurich Code of Civil Procedure and
not as an arbitrator. The Appraiser shall only consider those items
and amounts as to which Buyers and Sellers have disagreed within
the time periods and on the terms set forth above in Article 2.7.1(b)
and (c), it being understood that the scope of the disagreements to
be resolved shall be limited to whether the determination of the Net
Working Capital and/or Net Debt and/or the Provision and Liability
Amount were done in accordance with the requirements set forth in
this Article 2.7.1 and the Schedules referred to herein, and whether
there were mathematical errors in the calculation of Net Working
Capital, Net Debt and the Provision and Liability Amount.
	 
	 	(e)	 	The Appraiser shall deliver to the parties, as promptly as reasonably
practicable and in any event within thirty (30) Business Days from the
date of his or her appointment a written report setting forth the
resolution of any such disagreement. The Appraiser’s determination
of any subject matter falling within the scope of his or her mandate
shall be final and binding on the parties, except in the event of
manifest error on the part of the Appraiser, as a consequence of
which the relevant part of his or her determination shall be void and
the matter remitted to the Appraiser for correction.
	 
	 	(f)	 	The Appraiser shall make his or her determination of the Net Working
Capital and Net Debt and the Provision and Liability Amount in
respect of the line items (as specified in Schedule 2.7.1(a)(1)) to
which Sellers and Buyers have disagreed based on the presentations
and supporting materials provided by the parties and such other
documentation and information as the Appraiser may reasonably
request from each of the parties. The Appraiser shall:





	 	(i)	 	give the parties a reasonable opportunity to make written and oral
presentations;



25








 







	 	(ii)	 	require that each party submit simultaneously with any written
submissions to the Appraiser a copy of such submissions to the other party; and
	 
	 	(iii)	 	permit each party to be present while oral presentations are being made
by the other party.





	 	 	 	Other than as set forth above, the Appraiser shall determine his or her own procedure in
accordance with the requirements of due process.
	 
	 	(g)	 	Each party and the Appraiser shall, and shall procure that their respective
accountants, assistants and other advisers shall, keep all information and documents
provided to them pursuant to this Article 2.7.1 confidential and shall not use the same
for any purpose other than in connection with the preparation of the Closing Balance
Sheet, the determination of the Net Working Capital, Net Debt and the Provision and
Liability Amount and the respective proceedings before the Appraiser.
	 
	 	(h)	 	The costs and expenses (including VAT) of the Appraiser shall be fairly allocated
between Sellers and Buyers by the Appraiser by taking into consideration the parties’
relative success and defeat in the proceedings before the Appraiser (measured against
each party’s position in its initial submission to the Appraiser).





	 	2.7.2	 	Purchase Price Adjustments





	 	(a)	 	Net Working Capital Adjustment





	 	(i)	 	If, and to the extent, the Net Working Capital (as finally and bindingly
determined in accordance with Article 2.7.1) exceeds the Net Working Capital Level,
the Purchase Price shall be adjusted on a CHF-for-CHF basis by the amount equal to
such excess, such excess not to exceed ten (10) percent of the Net Working Capital
Level, minus the Estimated NWC Difference (such amount the Definitive NWC
Difference). If the amount calculated in accordance with the preceding sentence is
a positive number, the Purchase Price shall be increased accordingly; if the amount
calculated in accordance with the preceding sentence is a negative number, the
Purchase Price



26









 




	 	 	 	shall be decreased accordingly. However, in no event shall the sum of the Definitive NWC
Difference and the Estimated NWC Difference exceed ten (10) percent of the Net Working
Capital Level.
	 
	 	(ii)	 	If, and to the extent, the Net Working Capital (as finally and bindingly
determined in accordance with Article 2.7.1) is less than the Net Working Capital Level,
the Purchase Price shall be adjusted on a CHF-for-CHF basis by an amount equal to the
sum of such shortfall (defined as an absolute amount) and the Estimated NWC Difference.
If the sum of such shortfall and the Estimated NWC
Difference is a negative number the Purchase Price shall be increased accordingly; if
the sum of such shortfall and the Estimated NWC Difference is a positive number the
Purchase Price shall be decreased accordingly.





	 	(b)	 	Net Debt Adjustment





	 	(i)	 	If, and to the extent, the Net Debt (as finally and bindingly determined in
accordance with Article 2.7.1) is less than the Estimated Net Debt, the Purchase Price
shall be increased on a CHF-for-CHF basis by the amount of such shortfall.
	 
	 	(ii)	 	If, and to the extent, the Net Debt (as finally and bindingly determined in
accordance with Article 2.7.1) exceeds the Estimated Net Debt, the Purchase Price shall
be decreased on a CHF-for-CHF basis by the amount of such excess.





	 	(c)	 	Provision and Liability Amount Adjustment





	 	(i)	 	If, and to the extent, the Provision and Liability Amount (as finally and
bindingly determined in accordance with Article 2.7.1) is less than the Estimated
Provision and Liability Amount, the Purchase Price shall be increased on a CHF-for-CHF
basis by the amount of such shortfall.
	 
	 	(ii)	 	If, and to the extent, the Provision and Liability Amount (as finally and
bindingly determined in accordance with Article 2.7.1) exceeds the Estimated Provision
and Liability Amount, the Purchase Price shall be decreased on a CHF-for-CHF basis by
the amount of such excess.



27









 










	 	2.7.3	 	Inter-Company Obligations Adjustment





	 	(a)	 	If, and to the extent, the Inter-Company Obligations (as finally and
bindingly determined as part of Net Debt in accordance with Article
2.7.1) are less than the Estimated Inter-Company Obligations, the
amount of such shortfall shall be paid by the Sellers to the Buyers as
final and conclusive settlement of the Inter-Company Obligations.
	 
	 	(b)	 	If, and to the extent, the Inter-Company Obligations (as finally and
bindingly determined as part of Net Debt in accordance with Article
2.7.1) exceed the Estimated Inter-Company Obligations, the amount
of such excess shall be paid by the Buyers to the Sellers as final and
conclusive settlement of the Inter-Company Obligations.





	 	2.7.4	 	Payment of Net Working Capital Adjustment, Net Debt Adjustment,
Provision and Liability Adjustment and Inter-Company Obligations
Adjustment





	 	(a)	 	If the aggregate of the adjustments under Articles 2.7.2 and 2.7.3
results in a reduction in the Purchase Price and/or the Inter-Company
Obligations, Sellers shall pay to Buyers the amount of such reduction,
and if the aggregate of the adjustments under Articles 2.7.2 and 2.7.3
results in an increase in the Purchase Price and/or the Inter-Company Obligations, Buyers shall pay to Sellers the amount of such
increase (each such reduction and increase, respectively, in the
Purchase Price hereinafter referred to as a Purchase Price
Adjustment), in each case in cash by wire transfer of immediately
available funds, to a bank account designated by the party receiving
payment within five (5) Business Days after the final and binding
determination pursuant to Article 2.7.1(b) or 2.7.1(e), plus interest
accrued thereon between the Closing or, as the case may be, the
respective Local Closing, and the date of payment at the rate set
forth in Article 13.3(a). If, and to the extent, the law applicable in the
local jurisdiction comprising part of the Orion Business requires that
the Purchase Price Adjustment be paid locally, payment of such part
of the Purchase Price Adjustment shall be made in accordance with
such requirements.
	 
	 	(b)	 	The respective Purchase Price Adjustments payable pursuant to
Article 2.7.4(a) shall be converted into euro at the midpoint EUR/CHF
spot rate published on The Financial Times web page



28










 





	 	 	 	www.marketprices.ft.com/markets/currencies/ab (the FT Web Page) at the close of
business two (2) Business Days immediately preceding the earlier of (i) the date on
which the payment is made and (ii) the date on which payment becomes due hereunder. If
such exchange rate is not available on the FT Web Page, the respective Purchase Price
Adjustment shall be converted at the exchange rate issued by the Swiss National Bank two
(2) Business Days immediately preceding the earlier of (i) the date on which the payment
is made and (ii) the date on which payment becomes due hereunder.
	 
	 	 	 	In the event payment of the Purchase Price or part thereof is effected on a local level,
the respective part of the Purchase Price shall be converted into euro or, where
necessary, local currency at the midpoint CHF/EUR or, as applicable, CHF/local currency
spot rate published on the FT Web Page at the close of business two (2) Business Days
immediately preceding the earlier of (i) the date on which the payment is made and (ii)
the date on which payment becomes due hereunder or, if such exchange rate is not
available on the FT Web Page, at the exchange rate issued by the Swiss National Bank two
(2) Business Days immediately preceding the earlier of (i) the date on which the payment
is made and (ii) the date on which payment becomes due hereunder. In case cross rates
(Usanzen-Kurse) for the equivalent of one (1) CHF have to be calculated, the midpoint
CHF/USD spot rate as published on the FT Web Page at the close of business two (2)
Business Days immediately preceding the earlier of (i) the date on which the payment is
made and (ii) the date on which payment becomes due hereunder shall apply.





	 	2.7.5	 	Exclusive Adjustment Procedures
	 
	 	 	 	Without prejudice to Buyers’ rights under Articles 5 and 12 and any indemnity provided for in
this Agreement, the adjustment procedures set forth in this Article 2.7 shall be the sole and
exclusive adjustment procedures with regard to the Purchase Price and the Inter-Company
Obligations, and the parties hereto expressly waive any and all other adjustment procedures
and all other remedies or entitlements under any applicable law having the same economic
effect.



29










 





	 	2.8	 	Allocation of Purchase Price





	 	(a)	 	The Purchase Price shall be allocated among Sellers as set forth in
Schedule 2.8(a).
	 
	 	(b)	 	The amounts payable as a reduction or increase in Purchase Price
as set forth in Article 2.7.4 shall be allocated among Sellers in
accordance with the principles set forth in Schedule 2.8(a).





	3.	 	Actions Prior to Closing





	 	3.1	 	General
	 
	 	 	 	Unless specifically otherwise provided herein, the parties undertake to use their
Reasonable Best Efforts to procure that:





	 	(a)	 	the conditions precedent set forth in Article 4.2, as applicable to each
of them, shall be satisfied on or by the Closing; and
	 
	 	(b)	 	all their Affiliates will do all acts and things as are reasonably
necessary (and within their power) and useful to consummate the
transactions contemplated by this Agreement and to prevent actions
contrary to this Agreement.





	 	 	 	The parties shall fully cooperate and promptly inform each other of any relevant actions
taken prior to Closing.





	 	3.2	 	Filings and Submissions





	 	(a)	 	The parties shall undertake their respective Reasonable Best Efforts
to make all filings and submissions required pursuant to
Article 4.2.1(a) as soon as reasonably possible after the date hereof. No
party shall make any filings or submissions without the prior consent
of the other party (such consent not to be unreasonably withheld or
delayed).
	 
	 	(b)	 	The parties agree to duly cooperate with respect to any merger
control notification proceedings in order to obtain timely approval.





30









 





	 	3.3	 	Estimated Net Working Capital / Estimated Net Debt / Estimated Inter-Company
Obligations / Estimated Provision and Liability Amount





	 	(a)	 	No later than ten (10) Business Days prior to Closing, Sellers shall
deliver to Buyers a written statement of their reasonable good faith
estimate of the Net Working Capital as at the Closing (the Estimated
Net Working Capital), together with a reasonably detailed
explanation of the calculation thereof.
	 
	 	(b)	 	No later than ten (10) Business Days prior to Closing, Sellers shall
deliver to Buyers a written statement of their reasonable good faith
estimate of the Net Debt as at the Closing (the Estimated Net Debt),
together with a reasonably detailed explanation of the calculation
thereof; it being understood that the aggregate of the “long term
loans — Roche Group” plus “other accounts payable — Roche Group”
minus “other current assets — Roche Group”, all as shown on
Schedule 2.7.1(a)(1) with respect to Net Debt (such aggregate the
Inter-Company Obligations), shall constitute the estimated amount
of Inter-Company Obligations (the Estimated Inter-Company
Obligations) to be repaid or received by Buyers in accordance with
Article 4.3.2(b) or Article 4.3.1(e), as the case may be.
	 
	 	(c)	 	No later than ten (10) Business Days prior to Closing, Sellers shall
deliver to Buyers a written statement of their reasonable good faith
estimate of the Provision and Liability Amount as at the Closing,
together with a reasonably detailed explanation of the calculation
thereof.
	 
	 	(d)	 	The estimates referred to in section (a) to (c) of this Article 3.3 shall
be provided in the form as set forth in Schedule 2.8(a) and in addition
be reported and delivered to Buyers detailed and analyzed by country
and FGAR account.









	 	3.4	 	Buyers’ Designation of the Legal Entities Receiving the Transferred Orion Assets





	 	 	 	As soon as reasonably possible after the date hereof, but in no event later than six (6)
weeks prior to the anticipated date of Closing, Buyers shall definitively designate each of
the legal entities, which may also be Orion Companies, to which the Orion Assets, the Assumed
Orion Liabilities and



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	 	 	 	the Transferred Orion Employees shall be transferred and communicate such designation to
Sellers. A preliminary list of the local purchasing entities is attached hereto as
Schedule 3.4.





	 	3.5	 	Escrow of Data Room Documentation





	 	 	 	Within thirty (30) Business Days of the date hereof, Sellers shall deliver the originals
of the documentation disclosed to the Buyers in connection with the due diligence review as
reflected in the Data Room Indices attached hereto as Schedule 6.1.4(a)(iii) to PwC,
who shall keep such documentation in escrow on behalf of Sellers and Buyers substantially in
accordance with the terms set forth in Schedule 3.5. Sellers shall represent in such
escrow agreement the identity of such documentation with the documentation made available to
the Buyers during their due diligence review. Buyers shall be given sufficient opportunity to
verify the identity of the documentation made available to Buyers during their due diligence
review with the documentation to be given into escrow prior to such documentation being given
into escrow.





	 	3.6	 	Closing Memorandum





	 	 	 	Reasonably prior to Closing, Sellers’ legal counsel shall prepare, in cooperation with
Buyers’ legal counsel, a closing memorandum which describes the closing actions pursuant to
Article 4.3 and which shall serve as evidence for the closing of the transactions
contemplated under this Agreement.





	 	3.7	 	Completion / Update of Schedules





	 	(a)	 	No later than ten (10) Business Days prior to the Closing, Sellers
shall deliver to Buyers each of the Schedules to be updated pursuant
to, and in accordance with, Article 2.2.1(a). In addition, Sellers
undertake to update the annexes relating to the assets of the Orion
Companies, as set forth in Schedule 5.1, in the same manner and to
the same extent.
	 
	 	(b)	 	With respect to Schedule 2.2.1(a)(iii) and Annex 5.1.12(a), Sellers
acknowledge that such schedule and annex need to be further
revised to properly reflect the ownership of each Orion Product
Registration.



32









 





	 	(c)	 	With respect to Schedule 2.2.1(a)(v), Sellers acknowledge that such
schedule as at the date hereof is not complete and will need to be
amended without undue delay after the date hereof, but in any event
prior to the Closing.
	 
	 	(d)	 	With respect to Schedule 2.2.1(a)(ix) and Annex 5.1.9, Sellers
undertake to indicate with respect to the fixed assets listed thereon
the individual book value and, to the extent available, the respective
acquisition dates within thirty (30) Business Days after the Closing or,
as the case may be, the Local Closing.





	 	3.8	 	Transferred Orion Contracts





	 	 	Within eight (8) weeks as of the date hereof, the parties shall enter into and conclude
good faith discussions to identify those contracts of the Orion Business qualifying as
Transferred Orion Contracts in accordance with the guidelines set forth below:





	 	(a)	 	With respect to contracts of the Orion Business relating to the
physical in-market distribution of the products of the Orion Business,
including warehousing, consignment stock agreements, agency and
similar agreements (the Distribution Agreements), the parties will
identify those contracts to be transferred to Buyers, those to be
retained by Sellers, those to be divided and those to be terminated.
With respect to the contracts to be terminated, the parties shall
endeavor to limit the exposure to Termination Costs.
	 
	 	(b)	 	With respect to contracts of the Orion Business other than
Distribution Agreements (excluding any employment contracts and
any other contract covered by any of the Schedules to
Article 2.2.1(a)), Buyers shall accept the transfer of each of such
contracts unless a contract (i) does not exclusively relate to the Orion
Business, (ii) is illegal, (iii) is outside the ordinary course of business
of the Orion Business, taking into account past practices and the
Orion Business Plan (with the exclusion of those items relating to
achieving a standalone situation of the Orion Business), (iv) is subject
to a material dispute between Sellers and the counterparty or (v) by
its nature, can only be performed by the respective Asset Seller
Company.



33









 





	 	(c)	 	The parties shall, amongst themselves, share the following costs in
equal proportions: (i) the Termination Costs and (ii) the Bad Debt;
provided, however, that Buyers’ share shall be limited to an
aggregate of CHF 10,000,000.
	 
	 	(d)	 	Upon the reasonable request by Buyers, Sellers shall undertake
Reasonable Best Efforts to negotiate the modification of certain
Distribution Agreements specified by Buyers in consultation with
Sellers with the respective counterparties.





	 	3.9	 	Real Estate Sale and Transfer Agreement Grenzach





	 	 	 	On or before 30 September 2004, the parties shall cause their respective Affiliates
to enter into the form of agreement attached hereto as Schedule 3.9. If this
Agreement has been terminated in accordance with Article 4.2.5(a), the parties shall
cause their respective Affiliates to rescind the agreement entered into pursuant to the
preceding sentence.





	4.	 	Closing





	 	4.1	 	Date and Place





	 	(a)	 	Subject to Article 4.2.5, Closing shall take place on the last Business
Day of the month in which the conditions precedent to Closing set
forth in Article 4.2 have been satisfied or waived (where so
permitted), with effect as of the last day of such month / first day of
the following month at 24:00 CET/local time / 00:00 CET/local time,
as appropriate, the effective date and time intended to be
31 December 2004, 24:00 CET/local time /1 January 2005,
00:00 CET/local time, as appropriate, or on, and with effect as of,
such other date and time as the parties hereto may agree. Each
party undertakes to use its respective Reasonable Best Efforts to
effect Closing on, and with the effect as of, the intended date and
time referred to in the preceding sentence.
	 
	 	(b)	 	Closing shall take place at the offices of Homburger, Weinbergstrasse 56/58,
CH-8006 Zurich, Switzerland or at such other location as the parties
hereto may agree.



34









 











	 	4.2	 	Conditions Precedent to Closing





	 	4.2.1	 	Conditions to Obligations of Each Party





	 	 	 	The respective obligations of the parties hereto to effect the closing actions set forth in
Article 4.3 shall be subject to the satisfaction or (where permitted) waiver, at or prior to
the Long Stop Date, of the following conditions:





	 	(a)	 	(i) all governmental, administrative or regulatory approvals or
notifications (the Governmental Approvals) set forth in Schedule
4.2.1 (a) shall have been obtained and made, respectively, or (ii) any
waiting period under the applicable governmental, administrative
and/or regulatory laws and regulations set forth in Schedule 4.2.1 (a)
shall have expired or been terminated by the competent authorities,
in each case with the effect of a Governmental Approval of, or
clearance to, the transactions contemplated by this Agreement;
provided, however, that with respect to (i) and (ii) hereof, the
applicable governmental, administrative and/or regulatory laws and
regulations require the parties to suspend the completion of the
transactions contemplated herein until the Governmental Approval(s)
are obtained or the respective waiting period has expired or been
terminated by the competent authority;
	 
	 	(b)	 	no action shall be pending or threatened and no order, injunction or
decree of any court, administrative body or arbitration tribunal exists
which seeks to enjoin, restrain, impede or levy a substantial difficulty
on the consummation of the transactions contemplated hereunder;
	 
	 	(c)	 	the Materiality Condition as set forth in Article 4.2.6(a) shall be
satisfied and either Buyers or Sellers shall have made a request in
accordance with, and pursuant to, Article 4.2.6(b) that Closing be
effected; and
	 
	 	(d)	 	there shall have occurred no Material Adverse Effect.





	 	4.2.2	 	Conditions to Obligations of Buyers





	 	The respective obligations of Buyers to effect the closing actions set forth in Articles
4.3.2 and 4.3.3 shall be subject to the satisfaction or waiver of, on or by the Long Stop
Date, the following conditions:



35









 











	 	(a)	 	Sellers shall have performed in all material respects all of their
obligations undertaken in this Agreement or pursuant hereto that are to be performed prior to the Closing; and
	 
	 	(b)	 	all representations and warranties of the Sellers pursuant to Article
5.1 and Schedule 5.1 hereto shall be true and accurate at and as of
the date of this Agreement and the Closing, except that those
representations and warranties that are explicitly made at and as of a
specific date shall be true and accurate at and as of such date only;
provided, however, that Buyers shall be obligated to effect the
transactions contemplated under this Agreement unless (i), with
respect to inaccuracies (related to facts and circumstances) having
occurred before the date hereof, such inaccuracies would render it
grossly unreasonable for a reasonable buyer to consummate the
transactions contemplated under this Agreement, and (ii), with
respect to inaccuracies (related to facts and circumstances) occurring
after the date hereof, such inaccuracies could reasonably be
expected to have a Material Adverse Effect. Without prejudice to any
of the other terms of this Agreement, this Article 4.2.2(b) shall not
preclude Buyers from, or limit Buyers in, making a claim for
misrepresentation or breach of warranty in accordance with, and
pursuant to, Article 5.1 and Schedule 5.1.





	 	4.2.3	 	Conditions to Obligations of Sellers





	 	 	 	The respective obligations of Sellers to effect the closing actions set forth in Articles
4.3.1 and 4.3.3 shall be subject to the satisfaction or waiver, on or by the Long Stop Date,
of the following conditions:





	 	(a)	 	Buyers shall have performed in all material respects all of their
obligations undertaken in this Agreement or pursuant hereto that are
to be performed prior to the Closing; and
	 
	 	(b)	 	all representations and warranties of Buyers pursuant to Article 5.2
and Schedule 5.2 hereto shall be true and accurate in all material
respects at and as of the date of this Agreement and the Closing,
except that those representations and warranties which are explicitly
made at and as of a specific date shall be true and correct at and as
of such date only.



36









 











	 	4.2.4	 	Waiver of Non-satisfied Conditions





	 	 	 	The parties shall inform each other forthwith upon becoming aware of any fact or matter which
could reasonably be expected to constitute a breach or non-satisfaction of the conditions set
forth in Articles 4.2.1, 4.2.2 or 4.2.3. The parties shall enter into good faith negotiations
on how to resolve the issues and, without prejudice to any other provision of this Agreement,
each party shall be entitled to seek to cure at its own expense any such breach or
non-satisfaction. At any time prior to Closing, (i) Sellers and Buyers may jointly waive in
writing in whole or in part the conditions to Closing set forth in Article 4.2.1, (ii) Buyers
may waive in writing in whole or in part the conditions to Closing set forth in Article 4.2.2,
and (iii) Sellers may waive in writing in whole or in part the conditions to Closing set forth
in Article 4.2.3.





	 	4.2.5	 	Right of Termination





	 	(a)	 	Should the conditions precedent to Closing set forth in Articles 4.2.1
or 4.2.2 not be satisfied or waived by June 30, 2005 (the Long Stop
Date), Buyers may terminate this Agreement by giving notice to
Sellers unless Buyers themselves acted in bad faith, and in so doing,
prevented, hindered, frustrated or interfered with the satisfaction of
such condition precedent.
	 
	 	(b)	 	Should the conditions precedent to Closing set forth in Articles 4.2.1
or 4.2.3 not be satisfied or waived on or by the Long Stop Date,
Sellers may terminate this Agreement by giving notice to Buyers,
unless Sellers themselves acted in bad faith, and in so doing,
prevented, hindered, frustrated or interfered with the satisfaction of
such condition precedent.
	 
	 	(c)	 	If this Agreement is terminated according to Article 4.2.5(a) or (b),
such termination shall be without liability of any party to the other
party; provided, however, that if such termination is the result of (i)
the wilful or grossly negligent misconduct of either party to satisfy its
respective obligations under Article 3.1 or (ii) a failure to perform a
covenant under this Agreement, such party shall be liable to the other
party for any damage, loss, costs or expenses incurred or sustained
as a result of such misconduct or breach. It shall be agreed and
understood that, in addition to such liability, either party shall have
the right to request specific performance.



37









 





	 	(d)	 	If this Agreement is terminated pursuant to this Article 4.2.5(a) or (b),
all provisions of this Agreement shall cease to be effective except for
Article 3.9, second sentence, Article 4.2.5(c) and (d), Article 8.2
(Separation Costs), Article 9.4.1(c), second sentence, and Article 9.4.1(d),
Article 10.1 (Press Releases and Other Public
Announcements), Article 10.19 (Several Liability and Assumption of
Liability), Article 13.2 (Costs and Expenses), Article 13.3 (Interest),
Article 14 (General Provisions) and Article 15 (Governing Law and
Dispute Settlement).
	 
	 	(e)	 	Upon termination of this Agreement in accordance with Article 4.2.5(a),
the Transitional Agreements as well as the pharmacovigilance agreement as
set forth in Schedule 10.11 shall be terminated and the parties hereto
shall, if necessary, cause their respective Affiliates being parties
to such agreements to rescind such agreements.





	 	4.2.6	 	Deferred Closing / Local Closings





	 	(a)	 	If, on the date on which all of the conditions precedent to Closing set forth in
Articles 4.2.1(a), 4.2.1(b) and 4.2.1(d), and Articles 4.2.2 and 4.2.3 have been
satisfied, or, as the case may be, waived, the Orion Assets (including, in any case,
all shares in RCH and LRN), together with the Transferred Employees, that could be
transferred with respect to each of the countries comprising Orion Business transfer
control over less than seventy (70) percent in annual sales of the Orion Business in the
financial year of 2003 (the Materiality Condition), Buyers or Sellers may each request,
prior to the date of Closing specified in, or mutually agreed between the parties
pursuant to, Article 4.1 (a) that the Closing be deferred until the satisfaction of the
Materiality Condition. For purposes of determining of whether control within the meaning
of the preceding sentence has been transferred, transitional services under the
Transitional Agreements shall be taken into account, in particular distribution services
as defined in the Global Transitional Services Agreement. With respect to such
distribution services, Sellers shall be required to render such services if either the
regulatory licenses necessary to operate the Orion Business in the respective country
have not been transferred or obtained and no interim licenses have been granted or IT
separation as contemplated in Schedule 8.1 (a) has not been effected in an
individual country.



38










 






	 	(b)	 	Upon satisfaction of the Materiality Condition and without prejudice to
Article 4.1(a) second sentence, each of Sellers and Buyers shall have
the right to request that the Closing with respect to those Orion
Assets (together with the Transferred Employees and the Assumed
Orion Liabilities) for which the Materiality Condition has been satisfied
be effected. With respect to the remainder of the Orion Assets, the
Transferred Employees and the Assumed Orion Liabilities, the
Closing shall be deferred and closing or, if necessary, separate
closings in relation to such assets, shares, employees and liabilities
(each a Local Closing) shall occur at a month end (or if such month
end is not a Business Day, on the next Business Day) following the
Closing on which such assets, shares, employees and liabilities can
be transferred.
	 
	 	(c)	 	Pending completion of any Local Closing, Sellers shall continue to
operate the relevant part of the Orion Business in accordance with
the ordinary course of business and the Orion Business Plan (with
the exclusion of those items relating to achieving a standalone
situation of the Orion Business), subject, however, to the obligations
and limitations set forth in Articles 7.1 and 7.3, which shall apply
accordingly. During such period, Sellers shall deliver to Buyers
monthly flash sales reports for the RCH segment with respect to each
country that has not closed.
	 
	 	(d)	 	At each Local Closing, Buyers shall pay the portion of the Purchase
Price allocated pursuant to Schedule 2.8(a) to the Orion Assets that
are being transferred at such Local Closing. Article 4.3 shall apply
accordingly. At the last Local Closing on which all of the outstanding
Orion Assets have been transferred, Buyers shall have paid the
Purchase Price in full.
	 
	 	(e)	 	At each Local Closing, Buyers, or as the case may be, Sellers, shall
pay to the other party that part of the Estimated Inter-Company
Obligations which, as a result of such Local Closing, ceases to be an
obligation within the Roche Group. Article 4.3.1(e) and Article 4.3.2(b)
shall apply accordingly.




39










 







	 	4.3	 	Closing Actions
	 
	 	4.3.1	 	Actions by the Sellers
	 
	 	 	 	At the Closing, Sellers shall, or cause their Affiliates to (all in relation to the Orion
Assets, Transferred Employees and Assumed Orion Liabilities being transferred and assumed at
Closing):





	 	(a)	 	to the extent the Orion Shares are certificated, deliver to Buyers
certificates representing the Orion Shares endorsed in blank where
necessary and do all such other acts as may be required under
applicable law to transfer the Orion Shares and all rights connected
therewith from Sellers to Buyers;
	 
	 	(b)	 	deliver to Buyers originals of all corporate actions required under
applicable law and the articles of incorporation of the Orion
Companies to approve the transfer of the Orion Shares from the
relevant Seller to the Buyers;
	 
	 	(c)	 	deliver to Buyers a certified copy of any power of attorney under
which any of the transfers or other documents referred to in this
Article 4.3.1 are executed, including evidence reasonably satisfactory
to Buyers of the authority of any Person signing on behalf of Sellers;
	 
	 	(d)	 	deliver to Buyers resignation letters of the members of the board of
directors of the Orion Companies, unless otherwise instructed by
Buyers twenty (20) Business Days prior to Closing, in which they (i)
declare their resignation as of the Closing as members of the board
of directors and (ii) waive any rights and declare to have no claims of
any kind whatsoever towards the Orion Companies arising out of, or
in connection with, their board membership; and
	 
	 	(e)	 	cause, or have caused, the payment of the Estimated Inter-Company
Obligations (in case the calculation set forth in Article 3.3(b) results in
an obligation of Sellers to the Orion Business), to the extent the
Estimated Inter-Company Obligations cease, as a result of the
Closing, to be obligations within the Roche Group, in cash by wire
transfer of immediately available funds, converted into euro at the
midpoint EUR/CHF spot rate published on the FT Web Page at the
close of business on the day Sellers deliver to Buyers the written
statements of the estimates referred to in Article 3.3 or, if such



40









 






	 	 	 	exchange rate is not available on the FT Web Page, at the exchange rate issued by the
Swiss National Bank on the day Sellers deliver to Buyers the written statements of the
estimates referred to in Article 3.3, to the account or accounts designated by Buyers (in
writing no later than five (5) Business Days before the Closing), the amount of which has
been determined as part of Net Debt in accordance with Article 3.3(b).





	 	4.3.2	 	Actions by Buyers
	 
	 	 	 	At Closing, Buyers shall:





	 	(a)	 	cause, with effect as of Closing, the payment of, or transfer control over, the
Purchase Price in cash of immediately available funds to the account or accounts
designated by Sellers (in writing no later than five (5) Business Days before the
Closing) or agreed by the parties, whereby the total of the Estimated Purchase Price
Component shall be converted into euro at the midpoint CHF/EUR spot rate published on the
FT Web Page at the close of business on the day Sellers deliver to Buyers the written
statements of the estimates referred to in Article 3.3 or, if such exchange rate is not
available on the FT Web Page, at the exchange rate issued by the Swiss National Bank on
the day Sellers deliver to Buyers the written statements of the estimates referred to in
Article 3.3; if Sellers or Buyers, pursuant to Article 4.2.6(b), have requested that
Closing be effected at a time the Orion Assets (together with the Assumed Orion
Liabilities) that can be transferred transfer control, taking into account the
transitional services under the Transitional Agreements, over less than one hundred (100)
percent (but at least seventy (70) percent or more) in annual sales of the Orion Business
in the financial year of 2003, only the Purchase Price allocated as set forth in
Schedule 2.8(a) to the Orion Assets that are being transferred shall
be payable in accordance herewith.
	 
	 	 	 	If, and to the extent, the law applicable in a local jurisdiction comprising part of the
Orion Business requires Buyers to effect payment of the Purchase Price allocated to such
jurisdiction within such jurisdiction, payment of such allocated part of the Purchase
Price shall be so effected, whereby such allocated part of the Purchase Price shall be
converted into euro or, where necessary, local currency at the midpoint EUR/CHF or, as
applicable, EUR/local



41









 






	 	 	 	currency or CHF/local currency spot rate published on the FT Web Page at the close of
business on the day Sellers deliver to Buyers the written statements of the estimates
referred to in Article 3.3 or, if such exchange rate is not available on the FT Web
Page, at the exchange rate issued by the Swiss National Bank on the day Sellers deliver
to Buyers the written statements of the estimates referred to in Article 3.3. In case
cross rates (Usanzen-Kurse) for the equivalent of one (1) CHF have to be calculated, the
midpoint CHF/USD spot rate as published on the FT Web Page at the close of business on
the day Sellers deliver to Buyers the written statements of the estimates referred to in
Article 3.3 shall apply; and
	 
	 	(b)	 	cause, or have caused, the payment of the Estimated Inter-Company
Obligations (in case the calculation set forth in Article 3.3(b) results in
an obligation of the Orion Business to Sellers), to the extent the
Estimated Inter-Company Obligations cease, as a result of the
Closing, to be obligations within the Roche Group, in cash by wire
transfer of immediately available funds, converted into euro at the
midpoint EUR/CHF spot rate published on the FT Web Page at the
close of business on the day Sellers deliver to Buyers the written
statements of the estimates referred to in Article 3.3 or, if such
exchange rate is not available on the FT Web Page, at the exchange
rate issued by the Swiss National Bank on the day Sellers deliver to
Buyers the written statements of the estimates referred to in
Article 3.3, to the account or accounts designated by Sellers (in
writing no later than five (5) Business Days before the Closing), the
amount of which has been determined as part of Net Debt in
accordance with Article 3.3(b); and
	 
	 	(c)	 	deliver to Sellers a certified copy of any power of attorney under
which any of the actions referred to in this Article 4.3.2 are executed,
including evidence reasonably satisfactory to Sellers of the authority
of any Person signing on behalf of Buyers.





	 	4.3.3	 	Joint Actions by the Parties
	 
	 	 	 	At Closing, the parties shall:





	 	(a)	 	to the extent required by or appropriate under applicable local laws for valid
sales and/or assignments of the Orion Shares, execute such assignments and all such
other acts as may be required under



42









 






	 	 	 	applicable local laws to transfer the Orion Shares and all rights connected therewith from
Sellers to Buyers;
	 
	 	(b)	 	enter into the transfer documents (the Transfer Documents) to be
agreed between the parties twenty (20) Business Days prior to the
Closing, and such other instruments of sale, conveyance, assignment
and assumption as well as corporate instruments as the parties shall
deem reasonably necessary or appropriate to vest in, and transfer to,
Buyers or Buyers’ Affiliates (as designated by Buyers no later than
thirty (30) Business Days prior to the Closing) all right, title and
interest in and to the Transferred Orion Assets and the Assumed
Orion Liabilities; provided, however, that it shall be understood that,
with respect to the assets and liabilities to be transferred and
assumed hereunder that are located in Switzerland or that are
otherwise subject to Swiss law, transfer shall be effected in
accordance with the general principles of the CO and the CC, to the
exclusion of the rules on transfer of assets under the Swiss Merger
Act (Bundesgesetz über Fusion, Spaltung, Umwandlung und
Vermögensübertragung); and provided further, that it shall be
understood and agreed that the terms of this Agreement shall prevail
over, and that none of the representations, warranties, covenants,
agreements and indemnities contained herein shall be superseded
by, any of the provisions set forth in the Transfer Documents or any
of the other instruments of sale, conveyance, assignment and
assumption but shall remain in full force and effect to the full extent
contained in this Agreement. In the event of any conflict or
inconsistency between the terms of this Agreement and the terms of
any of the Transfer Documents, the terms of this Agreement shall
prevail;
	 
	 	(c)	 	implement the acts necessary in connection with Article 10.8;
	 
	 	(d)	 	execute the local transitional agreements under the Transitional
Agreements; and
	 
	 	(e)	 	have executed and delivered a letter signed by Hoffmann-La Roche
AG, Grenzach, and BHCV GmbH, Leverkusen, stating that the
purchase price under the agreement referred to in Article 3.9 shall be
due and payable effective as of the Closing.



43









 











	5.	 	Representations and Warranties





	 	5.1	 	Representations and Warranties of Sellers
	 
	 	 	 	Subject to the limitations set forth in Articles 6 and 11, Sellers hereby represent
and warrant to Buyers that the representations and warranties set forth in Schedule
5.1 are true and accurate in all material respects relevant for the respective
representation and warranty at and as of the date of this Agreement and at and as of the
Closing and, with respect to the Orion Assets, the Transferred Employees and Assumed
Orion Liabilities not transferred and assumed, respectively, at Closing, at and as of the
respective Local Closing, except that those representations and warranties that are
explicitly made as of a specific date shall be true and accurate as of such date only.
	 
	 	5.2	 	Representations and Warranties of Buyers
	 
	 	 	 	Subject to the limitations set forth in Article 6, Buyers hereby represent and
warrant to Sellers that the representations and warranties set forth in Schedule
5.2 are true and accurate in all material respects at and as of the date of this
Agreement and at and as of the Closing and, with respect to the Orion Assets, the
Transferred Employees and Assumed Orion Liabilities not transferred and assumed,
respectively, at Closing, at and as of the respective Local Closing, except that those
representations and warranties that are explicitly made as of a specific date shall be
true and accurate as of such date only.
	 
	 	5.3	 	Exclusive Representations and Warranties





	 	(a)	 	Sellers acknowledge that, other than as expressly provided in this
Agreement, Buyers have not made and do not make, and Sellers
have not relied and do not rely on, any representation or warranty,
express or implied, pertaining to the subject matter of this Agreement.
	 
	 	(b)	 	Buyers acknowledge that, other than as expressly provided in this
Agreement, Sellers have not made and do not make, and Buyers
have not relied and do not rely on, any representation or warranty,
express or implied, pertaining to the subject matter of this Agreement.
In particular, and without limitation to the foregoing, Buyers
acknowledge that, other than as expressly provided in this
Agreement, the Sellers do not make any representations and



44









 






	 	 	 	warranties as to budgets, business plans, forward-looking statements and other
projections of a financial, technical or business nature relating to the Orion
Business.





	6.	 	Remedies





	 	6.1	 	Remedies of Buyers
	 
	 	6.1.1	 	Sellers’ Right to Cure and Sellers’ Liability
	 
	 	 	 	With respect to a misrepresentation or a breach of a warranty notified by Buyers to
Sellers pursuant to Article 6.1.2, Sellers shall have the right, within a reasonable
period of time not exceeding forty (40) Business Days after receipt of the Notice of
Breach, to put Buyers in the same position in which they would have been if no
misrepresentation or breach of warranty had occurred, provided that during or after such
period no irreparable damage will be caused for the Orion Business or the Buyers. If, and
to the extent, such cure cannot be effected, or is not effected within such time period,
Sellers shall be liable to Buyers for any damage, loss, expense or cost (including
reasonable attorney’s fees but excluding punitive and consequential damages) incurred or
sustained by Buyers to establish the state represented or warranted in the
representations and warranties set forth in Article 5.1.
	 
	 	6.1.2	 	Notice of Breach





	 	(a)	 	Buyers shall deliver to Sellers a notice in writing describing the
underlying facts of a claim for misrepresentation or breach of warranty in
reasonable detail to the extent then known
supported by available documentation (the Notice of Breach) at the earlier of:





	 	(i)	 	forty-five (45) Business Days after BHC or one of its Affiliates
having obtained knowledge of (y) a misrepresentation or breach of warranty
pursuant to Article 5.1 or (z) receipt by Buyers or an entity being part of the
Orion Business of a notice of any claim made or threatened to be made by any
third party which Buyers believe is reasonably likely to give rise to a claim
for misrepresentation or breach of warranty; or
	 
	 	(ii)	 	in case of a submission to, or a decision or order by, any
competent court, arbitral tribunal or governmental or



45









 






	 	 	 	administrative body (including, without limitation, tax authorities) which Buyers
believe is reasonably likely to give rise to a claim for misrepresentation or breach
of warranty, as soon as reasonably possible upon Buyers receiving any such
submission, decision or order and, if at all possible, within such period as will
afford Sellers a reasonable opportunity to respond, or to cause the Orion Business
(via Buyers) to respond, to such submission or to lodge, or to cause the Orion
Business (via Buyers) to lodge, a timely appeal or other challenge against such
decision or order.





	 	(b)	 	Failure to give the Notice of Breach within the time periods set forth
above shall not exclude Sellers’ liability hereunder; provided,
however, that Sellers shall not be liable for any damage, loss,
expense, or cost caused or aggravated by Buyers’ failure to give duly
and timely notice within the time periods set forth in this Article 6.1.2.
	 
	 	(c)	 	The regime provided for in this Article 6.1.2 shall be in lieu of, and to
the exclusion of, Buyers duty to immediately notify Sellers in
accordance with article 201 CO.





	 	6.1.3	 	Term of Representations and Warranties





	 	(a)	 	The representations and warranties set forth in Article 5.1 shall survive the
Closing or, as the case may be, the Local Closing:





	 	(i)	 	until the tenth (10th) anniversary of the Closing or, as the case may
be, the Local Closing with respect to matters covered by Section 5.1.1 of
Schedule 5.1 (Organization and Qualification) and Section 5.1.7(a) of
Schedule 5.1 (Title to the Orion Assets);
	 
	 	(ii)	 	until three (3) months after expiry of the applicable statute of
limitations with respect to matters covered by Section 5.1.6 of Schedule
5.1 (Taxes);
	 
	 	(iii)	 	with regard to the representations and warranties in Section 5.1.21 of
Schedule 5.1 (Health, Safety and Environmental), until the earlier of (y)
the expiry of seven and a half (71/2) years after the Closing or, as the
case may be, the Local Closing or (z) the date on which a particular property,
facility (including the Orion Manufacturing Sites) or business is



46









 






	 	 	 	being put to a use (the Excess Use) the health, safety and environmental compliance
standards of which are in excess of those applicable as at Closing or, as the case
may be, the Local Closing; provided, however, that subpart (z) hereof shall only
affect the survival period set forth in subpart (y) hereof in respect of the Excess
Use; and
	 	 	 	 
	 	(iv)	 	in case of all other representations and warranties set forth in
Schedule 5.1, eighteen (18) months after the Closing or, as the case may
be, the Local Closing;





	 	 	 	provided, however, that it shall be agreed and understood that any representation or
warranty that would otherwise terminate in accordance with this Article 6.1.3(a)(i),
(ii), (iii) or (iv) will continue to survive if a Notice of Breach has been duly and
timely given under Article 6.1.2 until the related claim for misrepresentation or breach
of warranty has been satisfied or resolved as provided for in Article 15.2; provided
further, however, that, notwithstanding the foregoing, Buyers’ claim shall in any event
be precluded unless Buyers initiate arbitration proceedings pursuant to Article 15.2
within one (1) year of the date of the Notice of Breach.
	 
	 	(b)	 	The parties agree to substitute the statute of limitations set forth in article
210 CO for the survival periods set forth in this Article 6.1.3, it being understood
that at the expiry of any of such survival periods, any claim for misrepresentation or
breach of warranty shall be deemed time-barred automatically, without any need for
defence on the part of Sellers.





	 	6.1.4	 	Exclusion of Liability





	 	(a)	 	All matters and information which have been Fairly Disclosed in this Agreement or
in:





	 	(i)	 	[intentionally omitted];
	 
	 	(ii)	 	the Confidential Information Memorandum as delivered to Buyers;
and
	 
	 	(iii)	 	the documentation disclosed to Buyers in connection with their due
diligence review as reflected in the Data Room Indices set



47









 






	 	 	 	forth in Schedule 6.1.4(a)(iii) and put into escrow in accordance with Article
3.4; provided, however, that with respect to the representations and warranties set forth
in section 1 (a) through (g) (organization and qualification), section 2 (financial
statements), section 7 (assets), section 8(a) (real property), section 9 (tangible
assets), section 11 (a) through (f) and (h) (intellectual property rights, with respect
to (h) to the extent relating to active challenges of Orion Intellectual Property Rights
by third parties), section 13 (employment), section 16 (litigation/proceedings, to the
extent relating to product liability and litigation related to revocation of product
registrations by competent authorities) and section 20 (compliance) of Schedule
5.1, only the matters set forth in the annexes referenced in the respective
representations and warranties shall be considered disclosed; provided further, however,
that it shall be understood that with respect to the proviso, the concept of “fair
disclosure” as defined in Schedule 1 hereto shall
not apply;





	 	 	 	(all the documents referred to in this Article 6.1.4(a) collectively being the Disclosure
Documents)
	 
	 	 	 	shall operate as an exclusion of, or limitation to, Sellers’ representations and warranties
as set forth in Article 5.1 and Schedule 5.1 and Buyers’ respective rights under this
Agreement, and Sellers shall be under no liability to the extent that any matter or
information has been Fairly Disclosed to Buyers in the Disclosure Documents.
	 
	 	(b)	 	Sellers shall have the right to update the disclosure between the date hereof and the
Closing or, as the case may be, the Local Closing (giving Buyers sufficient time to review
and analyze such updates) with respect to those representations and warranties that must be
true and accurate at and as of Closing
or, as the case may be, at or as of the Local Closing; provided, however, that it shall be
agreed and understood that any disclosure made after the date hereof shall not operate as an
exclusion of, or limitation to, Sellers’ representations or warranties and Buyers’ respective
rights for the purpose of this Article 6.1.4.



48









 












	 	6.1.5	 	Third Party Claims





	 	(a)	 	In case of any claim brought or threatened by a third party, including,
but not limited to, claims brought by tax or other governmental
authorities, against Buyers or the Orion Business, which qualifies as
a breach of a representation or warranty and which has been notified
by Buyers in accordance with Article 6.1.2, Buyers shall oppose, or
cause the Orion Business to oppose, such claim, and Sellers shall
use their Reasonable Best Efforts in assisting Buyers or the Orion
Business in the defence of such claim. Subject to the provisions of
this Agreement, Sellers shall bear all reasonable attorney’s fees (and,
in environmental matters, also the reasonable cost for environmental
experts) sustained or incurred by Buyers or the Orion Business in the
defence of such claim (to the extent such fees cannot be recovered
from the third party). Buyers shall procure that no such claim is
settled without the prior written consent of Sellers, which consent
shall not be unreasonably withheld or delayed. In exercising their
right to defend pursuant to this Article 6.1.5(a), Buyers shall use their
Reasonable Best Efforts to safeguard and protect Sellers’ interest in
connection with the subject matter of the respective claim, in
particular with respect to relationships vis-à-vis third parties and
public relation matters. Sellers shall have the right to participate, at
their own expense, in the defence of any asserted claim hereunder.
	 
	 	(b)	 	Sellers may direct Buyers to agree to compromise any asserted
liability against Buyers or the Orion Business at any time unless such
compromise were to prejudice Buyers’ justified commercial interests;
provided, however, that Sellers assume all payments, costs,
expenses and other obligations resulting from such compromise.





	 	6.2	 	Remedies of Sellers
	 
	 	 	 	The provisions of Article 6.1 shall apply accordingly with respect to any
misrepresentation or breach of warranty by Buyers.
	 
	 	6.3	 	Remedies Exclusive
	 
	 	 	 	The remedies in this Article 6 for breach of representations and warranties pursuant to
Article 5 and Schedules 5.1 and 5.2 shall be in lieu of, and not in addition to, the
remedies provided for under statutory law and/or case law. All other remedies, including,
but not limited to, the right to rescind



49









 






	 	 	 	this Agreement following Closing, shall not apply and are hereby explicitly waived. In
particular, and without limitation to the foregoing, the parties hereto explicitly waive
(i) any and all rights pursuant to articles 192 et seq. and 197 et seq. CO (irrespective
of whether such rights are asserted directly based upon such articles or based indirectly
upon article 97 CO), (ii) the right of
contract rescission under article 205 CO or otherwise, and (iii) the right to challenge
the validity of this Agreement for fundamental error under article 23 et seq. CO. For the
avoidance of doubt, nothing in this Agreement shall limit Buyers in asserting claims
based on article 28 CO (Täuschung).





	7.	 	Conduct of Business between Signing and Closing





	 	7.1	 	General





	 	(a)	 	Unless otherwise provided herein or in the Orion Business Plan (with
the exclusion of those items relating to achieving a standalone
situation of the Orion Business) and subject to the limitations required
to effect separation of the Orion Business from Sellers, at all times
from the date of this Agreement to the Closing, Sellers shall procure
that the Orion Business continues to operate its business as a going
concern, in the ordinary course of business and consistent with prior
practice and the Orion Business Plan (with the exclusion of those
items relating to achieving a standalone situation of the Orion
Business) at all times from the date of this Agreement through to the
Closing.
	 
	 	(b)	 	Sellers shall inform Buyers, to the extent permissible
under
applicable law, about any event, action or development affecting the
Orion Business outside the ordinary course of business or which
would or could result in a breach of a representation and warranty
according to Article 5.1 and Schedule 5.1. In addition, Sellers shall,
and shall procure that the Orion Business shall, do everything
reasonably necessary and possible to preserve the goodwill of the
Orion Business; provided, however, that Sellers shall not be obliged
to pay for new retention programs for periods after the date hereof
other than those specified in the management incentive plans
referred to in Article 10.9.



50









 











	 	7.2	 	Access to the Orion Business
	 
	 	 	 	Subject to any constraints under applicable law, Sellers shall procure that Buyers shall
be given reasonable access during ordinary business hours after the date of this Agreement
until the Closing or, as the case may be, the Local Closing, to the management, legal and
financial advisers and auditors and the documents of the Orion Business to the extent this is
reasonably required for Buyers or their advisers in the context of this Agreement and the
actions contemplated hereunder, including the IT “load & go” project as reflected in the
respective Da Vinci/Rembrandt Project Charter; provided, however, that such access shall not
unreasonably interfere with the business and operations of the Orion Business.
	 
	 	7.3	 	Restricted Actions
	 
	 	 	 	Unless specifically provided in this Agreement, in the Orion Business Plan (with the
exclusion of those items relating to achieving a standalone situation of the Orion Business)
or foreseeably necessary to effect separation of the Orion Business from Sellers, including IT
separation under the “load & go” project as reflected in the respective Da Vinci/Rembrandt
Project Charter, Sellers shall not, and shall
procure that the Orion Business shall not, without prior consent of Buyers (or, if applicable
governmental, administrative and/or regulatory laws, in particular merger control laws, do not
so permit, without prior consultation of Buyers) do, or agree to do, any of the following from
the date of this Agreement through to the Closing or, as the case may be, the Local Closing:





	 	(a)	 	do anything that would materially interfere with the consummation of
the transactions contemplated under this Agreement;
	 
	 	(b)	 	execute any contracts or enter into any negotiations with any third
party that would materially inhibit or impair the consummation of the
transactions contemplated under this Agreement;
	 
	 	(c)	 	do anything which would have a Material Adverse Effect on the value
of the Orion Business taken as a whole or in any of the Core
Countries (it being understood that this subsection (c) shall not affect
in any way whatsoever the definition of Material Adverse Effect as
used in Article 4.2.1(d));



51









 






	 	(d)	 	(i) make any material change in the terms of employment of any
director, officer or employee of the Orion Business other than in
accordance with existing agreements, collective bargaining
arrangements or normal prior practice or (ii) exchange any
employees of the Orion Business with employees of other business
areas of the Sellers and their Affiliates (other than in the ordinary
course of business);
	 
	 	(e)	 	form, enter into, vary, terminate or withdraw from any material
partnership, consortium, joint venture or other incorporated
association;
	 
	 	(f)	 	alter or amend in any material manner the articles of incorporation or
organizational regulations of the Orion Companies other than in the
ordinary course of business;
	 
	 	(g)	 	pay or pre-pay invoices or delay the payment of invoices other than
consistent with prior business practice;
	 
	 	(h)	 	delay or withhold the capital expenditures to be made in the ordinary course of business,
including those provided for in the Orion Business Plan (with the exclusion of those items
relating to achieving a standalone situation of the Orion Business);
	 
	 	(i)	 	issue or create any obligation to issue any shares or equity-linked securities in any of the
Orion Companies;
	 
	 	(j)	 	transfer any shares that are directly or indirectly held by any Orion Company to a third
party or transfer any assets material to the Orion Business to a third party;
	 
	 	(k)	 	allow any product registrations or marketing rights or any registration of Intellectual
Property Rights material to the Orion Business to expire;
	 
	 	(l)	 	increase or reduce or otherwise change the share capital or capital structure, or grant any
option or conversion rights on the equity of any Orion Company;
	 
	 	(m)	 	grant, create or allow to be created any Lien (excluding Permitted Liens) over any of the
assets of the Orion Companies and the



52









 






	 	 	 	Transferred Orion Assets other than charges arising by operation of law or in the ordinary
course of business;
	 
	 	(n)	 	borrow any money or incur any interest-bearing indebtedness or other liability against a
third party or any of the Sellers or their Affiliates in excess of CHF 3,000,000 per item but
in any event not in excess of CHF 12,500,000 in the aggregate;
	 
	 	(o)	 	liquidate any Orion Company or effect any material reorganization with respect to such Orion
Company except as required by mandatory laws;
	 
	 	(p)	 	initiate, discontinue or settle any litigation or arbitration proceedings where the amount
claimed together with any costs incurred or likely to be incurred exceeds CHF 5,000,000;
	 
	 	(q)	 	declare, make or pay any dividend or other distribution, payable in cash, stock, property or
otherwise, with respect to any of the Orion Companies’ capital stock, except for
dividends to another wholly owned Orion Company;
	 
	 	(r)	 	enter into, amend, modify or terminate or consent to the termination of any shareholders’
agreement, joint venture, license, distribution and supply agreements, or amend, waive,
modify, terminate or consent to the termination of any of the Orion Companies’ rights
thereunder, other than in the ordinary course of business;
	 
	 	(s)	 	pay, discharge or satisfy any claim, liability or obligation other than in the ordinary
course of business;
	 
	 	(t)	 	close, transfer, or grant an interest in, any Orion Manufacturing Site, any other material
property, installation or equipment used for the Orion Business;
	 
	 	(u)	 	change the accounting procedures, principles or practices of the Orion Business unless
required under applicable law or regulations or in accordance with the ordinary course of
business;
	 
	 	(v)	 	make any changes in the tax status of the Orion Companies and Transferred Orion Assets,
including but not limited to Tax elections, Tax rulings and Tax accounting methods;



53








 






	 	(w)	 	change, stop or otherwise materially modify projects which the Orion
Business has commenced to implement other than pursuant to existing project plans
(including the Separation Step Plan and the Orion Business Plan (with the exclusion
of those items relating to achieving a standalone situation of the Orion Business))
as at the date hereof;
	 
	 	(x)	 	increase or reduce the number of employees engaged in any part of the
Orion Business to any material degree other than in accordance with existing project
plans as of the date hereof, including the Orion Business Plan, the Separation Plan
and the Separation Step Plan; and
	 
	 	(y)	 	engage in any promotional sales or discounts or other activities with
customers of the Orion
Business outside the ordinary course of business for the particular country and
season that has or would reasonably be expected to have the effect of accelerating
to the pre-Closing period sales to trade, invoicing and collection of accounts
receivables that would otherwise be expected to occur in post-Closing periods.





	8.	 	Separation





	 	8.1	 	Principles Applicable to Separation





	 	(a)	 	The parties shall use their Reasonable Best Efforts to separate, in cooperation
with each other, the Orion Business from the Asset Seller Companies in accordance
with the Separation Step Plan and the Da Vinci/Rembrandt Project Charter, each
attached hereto as Schedule 8.1(a), that will be continuously reassessed,
changed, modified or amended to reflect the respective operative requirements in
the course of the transactions contemplated hereunder. Each party acknowledges that
full separation of the Orion Business will not occur prior to or at Closing and
agrees that failure to implement the Separation Step Plan, as amended, on or before
Closing, to the extent so set forth therein, and to complete full separation
insofar, shall not be construed in any way whatsoever as a non-satisfaction of a
condition precedent to Closing and shall not prevent the parties from their
obligation to effect the Closing as set forth in Article 4.3.



54









 






	 	(b)	 	To the extent any of the items to be effected on or prior to Closing
under the Separation Step Plan, as amended, has not been carried
out at Closing (each such item hereinafter referred to as an
Outstanding Item), the parties shall continue to cooperate and
transfer any such Outstanding Item(s) as soon as reasonably
practicable.
	 
	 	(c)	 	In accordance with Article 4.2.6(a) and the terms of the Global
Transitional Services Agreement, Sellers shall be required to render
Distribution Services as defined in the Global Transitional Services
Agreement. Buyers agree to pay, perform and discharge, and
indemnify Sellers and any of their Affiliates for, and hold each of them
harmless against, all liabilities, costs and expenses of Sellers and
any of their Affiliates in relation to third party claims and relating to
Sellers’ or any of their Affiliates’ operation of that part of the Orion
Business in accordance and compliance with the terms of the
transitional services agreements referred to herein.





	 	8.2	 	Separation Costs





	 	(a)	 	Subject to subsection (b) below and unless otherwise stated in this
Agreement, all costs, whether internal or external, relating to the
obligations to separate from the Roche Group, and thereupon to
transfer to Buyers, the Orion Assets, the Transferred Employees and
the Assumed Orion Liabilities, including the costs relating to the
preparation of the transfer of such assets, employees and liabilities to
Buyers, shall be borne by Sellers. All costs, whether internal or
external, relating to receiving the Orion Assets, the Transferred
Employees and the Assumed Orion Liabilities and the subsequent
integration of such assets, employees and liabilities into Buyers
and/or any of their Affiliates shall be borne by Buyers, unless
otherwise stated in this Agreement.
	 
	 	(b)	 	With respect to costs relating to the IT “load & go” project, to the
extent not otherwise specified in the Da Vinci/Rembrandt Project
Charter, each party shall bear its own costs (whether external or
internal) and, if the parties mutually agree to jointly retain external
expertise, the cost and expenses of such retention shall be split
equally between the parties unless agreed otherwise.



55








 











	 	8.3	 	Transitional Agreements / Termination of Intra-Group Manufacturing and Supply
Agreements





	 	(a)	 	BHC or, as the case may be, RCH and F. Hoffmann-La Roche Ltd
(FHLR) have entered into
the following agreements (the Transitional Agreements), with effect as of today, or as
the case may be, as of Closing or, as the case may be, the Local Closing, through to the
expiry of the transitional period set forth therein, in order to bridge certain needs of
Buyers or, as the case may be, Sellers in operating the Orion Business or the business of
the Roche Group:





	 	(i)	 	under the umbrella of the global transitional services agreement, dated
as of the date hereof (the Global Transitional Services Agreement), attached hereto
as Schedule 8.3(a)(i), transitional services agreements detailing the
services to be provided by FHLR or one of its Affiliates to the Orion Business and
vice versa;
	 
	 	(ii)	 	under the umbrella of the frame supply agreements (the Frame Supply
Agreements, as amended by the memorandum of agreement as of the date hereof),
attached hereto as Schedule 8.3(a)(ii). supply agreements detailing the
terms and conditions for the manufacture and supply of certain products (as
identified therein) by FHLR or one of its Affiliates to the Orion Business and vice
versa;
	 
	 	(iii)	 	the manufacturing agreements (the Manufacturing Agreements, as amended
by the memorandum of agreement as of the date hereof), attached hereto as
Schedule 8.3(a)(iii), detailing the terms and conditions for the
manufacturing of certain products by FHLR or one of its Affiliates for the Orion
Business and vice versa; and
	 
	 	(iv)	 	the IT services agreement (the IT Services Agreement), attached hereto as
Schedule 8.3(a)(iv), detailing the terms and conditions for the IT support
services to be provided by FHLR or one of its Affiliates.





	 	(b)	 	Buyers acknowledge that, upon the Transitional Agreements becoming effective in
accordance with the terms thereof, any service, supply or manufacturing agreement or
arrangement entered into (i)



56








 






	 	 	 	by Sellers or any of their Affiliates and any business unit being part of the Orion
Business or (ii) among different business units of the Orion Business prior to such
effective date shall cease to be effective and be replaced in its entirety by the
terms and conditions of such Transitional Agreements; provided, however, that any
such service, supply or manufacturing agreement or arrangement shall not terminate,
in case of (i), until the Closing or, as the
case may be, the Local Closing, has occurred in respect of the respective business
unit of the Orion Business or, in the case of (ii), until the Closing or, as the
case may be, the Local Closing has occurred in respect of both respective business
units of the Orion Business.





	9.	 	Indemnities





	 	9.1	 	Indemnifications by Sellers





	 	(a)	 	Sellers shall indemnify Buyers and their Affiliates for, and hold each
of them harmless against, any and all claims, liabilities and
obligations, cost and expenses (including reasonable attorney’s fees)
relating to, or arising out of, the Excluded Assets and the Excluded
Liabilities until three (3) months after the respective claim relating to
the Excluded Assets or the Excluded Liabilities has become time-barred.
	 
	 	(b)	 	Sellers shall indemnify Buyers for Assumed Orion Liabilities and
obligations and liabilities of the Orion Companies if, and to the extent,
such liabilities and obligations (i) are based on third party payment
claims (Zahlungsverpflichtungen), the cause of action (faktische
Anspruchsgrundlage) of which (1) has arisen before the Closing or,
as the case may be, the Local Closing, and (2), with respect to
product liability claims, relates to products manufactured or
commercialized by Sellers or any of their contractual parties prior to
the Closing or, as the case may be, the Local Closing (excluding,
however, for the avoidance of doubt, products manufactured or
commercialized by Sellers or any of their contractual partners after
the Closing in connection with distribution services rendered under
the Global Transitional Services Agreement) and is not based on
scientific findings in relation to such products made after the Closing
or, as the case may be, the Local Closing, (ii) are not reflected in the
Net Working Capital, Net Debt or Provision and Liability Amount, as
finally and bindingly determined pursuant to Article 2.7.2, and (iii),



57









 






	 	 	 	with respect to Transferred Orion Contracts, are not related to an adequate corresponding
benefit the Orion Business has received, accrued or is entitled to receive or accrue.
With respect to liabilities underlying the provisions contained in the Provision and
Liability Amount reflected in the Orion Balance Sheet this indemnity shall not apply
regardless of whether (y) the amount of such liabilities reflected on the Final Closing
Balance Sheet has increased or decreased in comparison to that in the Orion Balance Sheet
(it being understood, however, that any such increase or decrease shall give rise to a
purchase price adjustment in accordance with Article 2.7.2) and (z) the amount of such
liabilities increases after the Closing or, as the case may be, the Local Closing in
excess of the amount accounted for in the Final Closing Balance Sheet.
	 
	 	(c)	 	The indemnity set forth in section (b) of this Article 9.1 shall expire three (3)
years after the Closing.





	 	9.2	 	Indemnification by Buyers
	 
	 	 	 	Buyers hereby agree to indemnify Sellers and their Affiliates for, and hold each of them
harmless against, any and all claims, liabilities, obligations, cost and expenses (including
reasonable attorney’s fees) relating to, or arising out of, (i) the Assumed Orion Liabilities
to the extent Sellers are not required to indemnify Buyers pursuant to this Agreement, (ii)
Buyers’, the Orion Business’s or a sublicencee’s unlawful use of the Shared Intellectual
Property Rights, and (iii) Buyers’ or the Orion Business’s unlawful use of the Roche Group’s
corporate names, Trademarks (including, but not limited to, Rochelle® and Rochevit®), domain
names or copyrights until three (3) months after the respective claim relating to the subject
matter of this indemnity has become time-barred.
	 
	 	9.3	 	Tax





	 	(a)	 	Sellers shall be responsible for, pay, and indemnify and hold harmless Buyers for
and against, and shall be entitled to all refunds and credits of, all Taxes with respect
to the Orion Companies and the Transferred Orion Assets for any Tax Periods or portions
thereof ending on or before the Closing or, as the case may be, the Local Closing,
including, but not limited to:



58








 











	 	(i)	 	any liability for, or entitlement to refunds and credits of, Taxes arising out of
any act, omission, event or transaction occurring before Closing or, as the case may be,
the Local Closing; or
	 
	 	(ii)	 	any liability for, or entitlement to refunds and credits of, Taxes arising by
reference to income, profits or gains earned, accrued or received before Closing or, as
the case may be, the Local Closing; including Taxes on income or capital gain from the
disposal of the Orion Business, de-grouping charges or other Taxes in connection with a
change of control or cancellation of fiscal unity payable by any of the Orion Companies
that are incurred in connection with the transactions contemplated under this Agreement;





	 	 	 	provided, however, that any such liability and any such entitlement is not reflected in the
Net Working Capital, Net Debt or Provision and Liability Amount and subject to the purchase
price adjustments set forth in Article 2.7.
	 
	 	(b)	 	Notwithstanding Articles 13.1.1 and 13.1.2, Buyers shall be
responsible for, pay, and indemnify and hold harmless Sellers for and
against, and shall be entitled to all refunds and credits of, all Taxes
with respect to the Orion Companies and the Transferred Orion
Assets and any and all liabilities, costs and expenses resulting from,
arising out of, or relating to Taxes with respect to the Orion
Companies and the Transferred Orion Assets for any period after
Closing or, as the case may be, the Local Closing.
	 
	 	 	 	In case of a Tax Period that begins before Closing and ends after Closing, the amount of Tax
relating to the portion of such Tax Period ending on the Closing shall be allocated according
to the Final Closing Balance Sheet. In case the direct allocation to the period before
Closing is not possible, a pro rata allocation to the respective Tax Period shall be applied
in reasonably good faith.
	 
	 	(c)	 	Indemnification payments under Article 9.3(a) shall be made within
thirty (30) Business Days following written notice by Buyers but not
earlier than Buyers have to pay the respective Taxes to the
competent tax authority. Tax refunds and Tax credits under
Article 9.3(a) shall be paid to Sellers within thirty (30) Business Days
after the Tax refund or Tax credit has been notified by Buyers. A Tax



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	 	 	 	refund is to be considered realized for purposes of this Agreement at the time it is
received in cash or some cash equivalent, and a Tax credit is deemed being realized if
reflected in a Tax reassessment or Tax settlement notice. In case of Article 9.3(b) this
Article shall apply vice versa.
	 
	 	(d)	 	If any payment of Sellers based on liabilities resulting from
Article 6.1.1 and Article 9.1 triggers taxable income which is not fully
offset by any corresponding tax deductible charges, resulting
additional Taxes will be reimbursed by Sellers.
	 
	 	(e)	 	The obligations of the parties pursuant to this Article 9.3 shall survive
the Closing and shall become time-barred six (6) months after the
relevant Tax assessment notices for the Orion Companies or the
Transferred Orion Assets become final and binding provided that
claims shall not become time-barred earlier than six months after
Seller or Purchaser complied with its notification obligations under
this Article 9.3.





	 
	9.4  	Environment	 
	 
	9.4.1 	Environmental Investigations	 





	 	(a)	 	Up to the Closing, Buyers shall be entitled to have a recognized
environmental expert (the Environmental Expert) carry out the
environmental investigations (the Environmental
Investigations) at the sites located in Pilar, Gaillard, Pau, Casablanca
and Jakarta-Cimanggis (the Identified Sites) necessary to establish zero
baseline situation reports (the Baseline Reports) and determine
therein Material Contaminations, if any, of the Identified Sites with
Relevant Substances existing as at the Closing or, as the case may
be, at the Local Closing at such Site (the Material Existing
Contaminations). Reports prepared or finalized more than three
months after Closing shall not be considered Baseline Reports. The
scope of the Environmental Investigations shall be determined by
Buyers after consultation with Sellers.
	 
	 	(b)	 	In conducting the Environmental Investigations and in the preparation
of the Baseline Reports, the Environmental Expert shall act as an
expert (Schiedsgutachter) as that term is defined in section 258 of the
Zurich Code of Civil Procedure, and not as an arbitrator, and its



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	 	 	 	determination of the factual aspects of the Material Existing Contaminations shall be final
and binding on the parties, except in the event of manifest error on the part of the
Environmental Expert, as a consequence of which the relevant part of its determination and the
Baseline Reports shall be void and the matter be remitted by either party to another mutually
acceptable environmental expert (the Second Environmental Expert) for correction whereby the
principles set forth above shall apply mutatis mutandis; if the parties are unable to agree on
the Second Environmental Expert within ten (10) Business Days following the notice by one
party that in its opinion the determination of the Environmental Expert is subject to one or
more manifest errors (such notice to be accompanied by an
appropriate identification of such manifest errors), the Second Environmental Expert shall be
selected by the director (Direktor) of the Zurich Chamber of Commerce upon the application of
either Sellers or Buyers on behalf of both parties.
	 
	 	(c)	 	Buyers agree that the Environmental Investigations, including the
disposal of all materials associated with such activity, shall be
conducted at Buyers’ sole cost and expense and in accordance with
all applicable laws and regulations, including Environmental Laws. If
the Closing contemplated by this Agreement is not consummated for
any reason, Buyers agree to restore each Identified Site at which any
Environmental Investigations were conducted to its condition prior to
the commencement of the Environmental Investigations. For the
avoidance of doubt, in no event shall Buyers, under this section (c) of
this Article 9.4.1, be responsible for remedial actions relating to
contaminations existing prior to the commencement of the
Environmental Investigations.
	 
	 	(d)	 	All information obtained from the Environmental Investigations (i)
shall be provided to Sellers, (ii) shall be kept confidential by Sellers
and Buyers pursuant to Article 14.8 and (iii) shall not be provided to
any Person other than Sellers. In the event that the Environmental
Investigations identify conditions at any of the Identified Sites that in
the opinion of the Environmental Expert or Buyers may require notice
to a governmental authority prior to Closing, Sellers shall be
exclusively responsible for such notice.



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	9.4.2  	Sellers’ Liability for Material Existing Contaminations	 





	 	(a)	 	Sellers shall, subject to the terms of this Article 9.4, indemnify Buyers
or the Orion Business against all public law and civil law claims of
public authorities or third parties and all additional costs in connection
with Material Existing Contaminations, if, and to the extent, (i) the
remedial actions (including but not limited to clean-up remediation,
investigation, monitoring and safeguarding measures) are required as
a result of a violation, or in order to avoid any imminent violation, of
Environmental Laws as applied by the competent public authorities at
the time of Closing and (ii) the costs and expenses of such remedial
actions are not included in the calculation of the Net Working Capital,
the Net Debt or the Provision and Liability Amount (as finally and
bindingly determined in accordance with Article 2.7.1) or are not
reflected in the Orion Business Plan (such remedial actions
hereinafter referred to as being the Covered Remedial Actions).
	 
	 	(b)	 	The following procedures shall apply to Covered Remedial Actions:





	 	(i)	 	the Covered Remedial Actions shall (x) establish legal compliance under
Environmental Laws applicable in the respective jurisdiction, as lawfully
interpreted by the competent governmental or judicial authority; (y) be cost
effective; and (z), be proportional to the effects of the Material Existing
Contaminations, with respect to (y) and (z) each within the
requirements of mandatory laws as applied by the competent public authorities;
	 
	 	(ii)	 	with respect to Covered Remedial Actions, Sellers and Buyers shall, and
shall cause their respective Affiliates, including the entities being part of the
Orion Business, to, consult with one another in good faith and generally conduct
themselves in a commercially reasonable manner and in particular comply with the
following:





	 	(1)	 	any Covered Remedial Action to be conducted shall be
commenced according to an action plan established by
Buyers (the Remedial Action Plan);
	 
	 	(2)	 	Buyers shall give Sellers the opportunity to be involved in
determining the method and scope of any Covered



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	 	 	 	Remedial Action; provided, however, that any such involvement shall not prevent the
Covered Remedial Action from being implemented in compliance with the Environmental
Laws applicable in the respective jurisdiction;
	 
	 	(3)	 	each party shall give the other reasonable opportunity, by
giving reasonable prior written notice, to attend and
participate in any material meetings or conference calls
with the competent authorities with respect to the
Covered Remedial Actions;
	 
	 	(4)	 	subject to applicable legal privileges, Buyers shall provide
Sellers with all reports, correspondence, analytical results
and other relevant documentation with respect to the
Covered Remedial Actions; and
	 
	 	(5)	 	subject to applicable legal privileges, Buyers shall provide
Sellers a reasonable opportunity of at least thirty (30)
Business Days (unless exigent circumstances otherwise
require) to review and comment on drafts of any
Remedial Action Plan or other material submission to
governmental authorities or third parties with respect to
the Covered Remedial Actions. Buyers shall take
reasonable account of Sellers’ comments in relation
thereto;





	 	(iii)	 	subject to the reimbursement of costs and expenses pursuant to the allocations
set forth herein, Buyers shall have the right, after reasonable consultation with
Sellers, as the case may be, and without prejudice to their other rights or obligations
hereunder, to take such action as is reasonably necessary to respond to actual or
threatened emergencies at or affecting the Identified Sites.





	 	(c)	 	Upon any change in use of any Identified Site of the Orion Business, or divestiture by
Buyers of any Identified Site or any asset related thereto to a third party (including an
Affiliate of Buyers), Sellers’ liability under this Article 9.4 shall only continue if such
change or divestiture does not materially alter the use of such Identified Site as at Closing
or does not otherwise adversely affect Sellers’ position



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	 	 	 	under this Article 9.4, provided that in case of a change in use, such altered use shall
only be of relevance if such altered use leads to increased relevant environmental risks,
requirements or restrictions compared to the former use. In the event of such material
alteration or adverse effect on Sellers’ position under this Article 9.4, Sellers’
liability hereunder shall cease to be effective and Buyers shall indemnify each of
Sellers and each of their Affiliates for, and hold each of them harmless against, any
liability resulting thereof.
	 
	 	(d)	 	In no event shall Sellers be liable for costs and expenses for remedial
actions caused by more stringent standards under the Environmental
Laws applicable in the relevant jurisdictions which are imposed as a
result of a change in use as described above of any Identified Site by
Buyers or the Orion Business or a transfer of any Identified Site or
any asset relating thereto by Buyers or the Orion Business to a
successor owner or operator using the Identified Site for any purpose
other than as at Closing (including the Orion Companies).
	 
	 	(e)	 	For the avoidance of doubt, construction on any Identified Site if, and
to the extent, prompted by the business purposes of the Orion
Business shall not constitute a “change in use” within the meaning of
Article 9.4.2(c) or Article 9.4.2(d).
	 
	 	(f)	 	For the avoidance of doubt, nothing contained in this Article 9.4 shall
preclude that Buyers prove that a Material Existing Contamination
was present at the Identified Sites before Closing which has not been
identified by the Environmental Expert.





	 	9.4.3	 	Grenzach





	 	(a)	 	Irrespective of any fault, the Buyers shall be entitled to require the Sellers to
provide indemnification with respect to any costs, obligations or disadvantages of any
kind that may arise under public or private law as a consequence of any claims, rights
or acts of public authorities or any other third party in connection with any
Environmental Damage, except if such Environmental Damage is not existing at Closing;
this shall include, without limitation, any costs incurred for investigating,
monitoring, securing, cleaning-up or removing any environmental damage. The same shall
apply with regard to any additional costs or losses, especially any increase in cost of
any of Buyers’ future development or construction projects,



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	 	 	 	that may be caused by Environmental Damage on, or originating from, the Transferred
Orion Manufacturing Site in Grenzach and existing at Closing. Environmental Damage is
presumed to have existed at Closing (provided that Seller may prove that Environmental
Damage was caused after Closing), except for claims which are (i) based upon
Environmental Damage caused by substances or combinations of substances used on the
Transferred Orion Manufacturing Site in Grenzach at Closing, and (ii) brought forward by
Buyers more than ten (10) years after Closing, with respect to which the burden of proof
shall be with Buyers.
	 
	 	(b)	 	Article 9.4.2(b), (c), (d) and (e) shall apply accordingly; provided,
however, that with respect to section (c) and (d) regarding the effect
on Sellers’ liability in case of change in use of the Transferred Orion
Manufacturing Site in Grenzach, Sellers’ liability shall only cease to
the extent of the Excess Use (as defined in Article 6.1.3(a)(iii)).
	 
	 	(c)	 	For purposes of this Article 9.4.3, any defined term used in this
Article 9.4 shall be deemed to refer the Transferred Orion
Manufacturing Site in Grenzach.
	 
	 	(d)	 	Sellers shall indemnify and hold harmless the Buyers from any costs
and consequential costs and/or damages incurred in relation to the
complete cleansing of the rooms and property used to produce the
antibiotic “Rocephin” from chemicals, biological organisms (e.g. fungi,
bacteria or virus), as set out, but not limited to the measures or the
amount of EUR 3.3 million set forth in the Orion Business Plan.
Buyers shall perform the cleansing, if at all possible, during
production standstill time and otherwise in a cost effective manner.
	 
	 	(e)	 	The period of limitations for any claims relating to Environmental
Damage or any indemnification claims arising in this connection shall
be fifteen (15) years and shall begin at Closing.





	 	9.4.4	 	Insurance
	 
	 	 	 	Either party shall have the right to provide at its own cost environmental insurance
coverage, including, but not limited to, property transfer pollution liability insurance
(PTP) and remediation cost cap insurance (RCC), for any type of liability covered by this
Article 9.4. The existence or non-existence of any such insurance shall have no effect upon
the respective party’s



65








 






	 	 	 	liabilities or obligations pursuant to this Article 9.4 or otherwise adversely affect the
other party’s rights or interests hereunder in any way whatsoever.
	 
	 	9.4.5	 	Asbestos Related Claims





	 	(a)	 	Sellers shall indemnify Buyers and the Orion Business for any
damage, loss, costs or expenses suffered by Buyers or the Orion
Business arising out of, or relating to, health claims instituted by
existing or former employees of the Orion Business against the Orion
Business, if, and to the extent, such health claims are related to a
health impairment suffered as a result of exposure to asbestos on or
prior to Closing.
	 
	 	(b)	 	Sellers’ liability under Article 9.4.5(a) shall expire five (5) years
following the Closing.





	 	9.4.6	 	Environmental Liability of Buyers
	 
	 	 	 	Buyers shall reimburse Sellers for any amounts paid by Sellers to third parties,
including governmental authorities, which are the responsibility of Buyers; provided,
however, that Sellers have timely informed Buyers of such liability or the claims
relating to such liability and have given Buyers a reasonable opportunity to assist
Sellers in defending such liability or claim.





	10.	 	Other Covenants





	 	10.1	 	Press Releases and Other Public Announcements
	 
	 	 	 	Following the date of this Agreement, all public announcements or press releases
issued in connection with the transactions contemplated by this Agreement shall only be
published after Buyers and Sellers shall have consulted and agreed on the contents and
timing of such public announcements or press releases. Nothing in this Agreement shall
restrict or prohibit:





	 	(a)	 	any announcement or disclosure required by statutory law or by any
competent judicial or regulatory authority or by any competent securities exchange
(in which case the parties shall cooperate in good faith in order to agree on the
content of any such announcement prior to it being made);



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	 	(b)	 	Buyers or the Orion Business from informing customers or suppliers
of the acquisition of the Orion Business by Buyers after Closing; or
	 
	 	(c)	 	Buyers from making any disclosure to any of its directors, officers,
employees, agents or advisers who are required to receive such
information to carry out their duties (conditional upon any such
Person agreeing to keep such information confidential for so long as
the disclosing party is obligated to do so in accordance with this
Article, any other provision of this Agreement or applicable law).





	 	10.2	 	Undertakings





	 	(a)	 	With respect to the commitments, guarantees or similar undertakings
(the Undertakings) made or given by Roche Finanz and Roche
Holding, respectively (each a Guarantor, and together the
Guarantors) to certain financial institutions as a security for
obligations of RIM and RCH, respectively, all as further specified in
Schedule 10.2, Buyers undertake to offer to each of the financial
institutions identified in such schedule commitments, guarantees or
similar undertakings equivalent to those currently in effect so as to
put such financial institutions in a position to give their consent to a
release of each of the Guarantors from such Undertakings.
	 
	 	(b)	 	If any of the Guarantors should not be released from the
Undertakings and, as a result of Buyers’ or any of their Affiliates’ non-performance
(or non-proper performance) of the obligations
underlying such Undertakings, any of the Undertakings are enforced
against any of the Guarantors, Buyers hereby agree to indemnify any
of the Guarantors for, and hold each of them harmless against, all
amounts paid under, and all costs incurred in connection with the
enforcement by such financial institutions of, the Undertakings.





	 	10.3	 	Assignments / Change of Control Clauses of the
Transferred Orion Contracts





	 	(a)	 	Buyers and Sellers will cooperate in seeking the assignment of all Transferred Orion
Contracts from the Asset Seller Companies to Buyers, effective as of or as soon as
practicable after the Closing. To the extent required, for each Transferred Orion
Contract, Sellers and Buyers will use their Reasonable Best Efforts to obtain the
consent and approval of the other party or parties to that Transferred Orion



67









 






	 	 	 	Contract to assign that Transferred Orion Contract to relevant Buyer so that the relevant
Buyer is substituted for the Asset Seller Companies under the Transferred Orion Contract and
the Asset Seller Companies are relieved of all further liabilities and rights. For the
avoidance of doubt, the relevant Buyer shall not be obliged to agree to any other changes in
the Transferred Orion Contract.
	 
	 	(b)	 	In the event that any Transferred Orion Contract cannot be
transferred in accordance with Article 10.3(a), with respect thereto,
then as of the Closing, this Agreement, to the extent permitted by law
and the terms of the Transferred Orion Contract, shall constitute full
assignment by the Asset Seller Companies to Buyers of all of the
Asset Seller Companies’ right, title and interest in and to, and all of
the Asset Seller Companies’ obligations and liabilities under, such
Transferred Orion Contract, and Buyers shall be deemed the Asset
Seller Companies’ agent for purpose of completing, fulfilling and
discharging all of the Asset Seller Companies’ liabilities thereunder.
The parties shall take all necessary steps and actions to provide the
relevant Buyer with the benefits of such Transferred Orion Contract,
and to relieve the Asset Seller Companies of the performance and
other obligations thereunder.
	 
	 	(c)	 	In the event Sellers shall be unable to make the transfer of one (1) or
more Transferred Orion Contracts as described in Article 10.3(a) and
(b), or if such attempted assignment would give rise to the exercise of
any right of termination, or would otherwise adversely affect the rights
of the Asset Seller Companies or Buyers under such Transferred
Orion Contract, or would not assign all of the Asset Seller
Companies’ rights thereunder at the Closing, Sellers and Buyers
shall, from and after the Closing, continue to cooperate and use
Reasonable Best Efforts to obtain all consents, approvals and/or
waivers required to provide Buyers with such rights. To the extent
that any such consents, approvals and/or waivers are not obtained,
or until the impediments to such assignment are resolved, Sellers
shall use Reasonable Best Efforts to (i) provide Buyers, at the
request of Buyers, the benefits of any such Transferred Orion
Contract to the extent related to the Orion Business, (ii) cooperate in
any lawful arrangement designed to provide such benefits to Buyers
and (iii) enforce, at the request of and for the account of Buyers, any
rights of the Asset Seller Companies arising from any such
Transferred Orion Contract against any third party.



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	 	(d)	 	To the extent that Buyers are provided the benefits of any Transferred Orion
Contract referred to herein, whether under the regime set forth in Article 10.3(a), (b)
or (c), Buyers shall perform on behalf of the Asset Seller Companies and for the benefit
of any third party the obligations of the Asset Seller Companies thereunder or in
connection therewith. In that case
Buyers agree to pay, perform and discharge, and indemnify each of Sellers and their
Affiliates for and hold each of them harmless against, all liabilities of each of Sellers
or their Affiliates relating to such performance or failure to perform, and in the event
of a failure of such indemnity, Sellers and each of their Affiliates shall cease to be
obligated under this Agreement with respect to the Transferred Orion Contract which is
the subject of such failure.





	 	10.4	 	Change of Control Clauses of Contracts to Which an Orion Company is a Party





	 	(a)	 	Sellers and Buyers shall cooperate and use their Reasonable Best
Efforts to procure that any consents, approvals or waivers of any third
party under any contract or agreement to which an Orion Company is
a party and which gives rise to a right of termination upon change of
control, including, but not limited to, those set forth in
Schedule 10.4,
shall have been obtained on or before Closing.
	 
	 	(b)	 	In the event that the parties shall have not been able to obtain a
necessary consent, approval or waiver of any third party under such
contracts, Sellers and Buyers shall, from and after the Closing,
continue to cooperate and use Reasonable Best Efforts to obtain all
such consents, approvals or waivers required to transfer such
contracts to Buyers.
	 
	 	(c)	 	To the extent that any such consents or waivers are not obtained,
and until the impediments to the transfer of the relevant contract are
resolved, Sellers shall use Reasonable Best Efforts to (i) provide
Buyers, at the request of Buyers, the benefits of any such contract to
the extent related to the Orion Business, (ii) cooperate in any lawful
arrangement designed to provide such benefits to Buyers and (iii) enforce, at the request of and for the account of Buyers, any rights of
Sellers arising from any such contract against any third party.



69








 






	 	(d)	 	To the extent that Buyers are provided the benefits of any contract subject to the
regime of Article 10.4(c), Buyers shall perform on behalf of Sellers and for the benefit
of any third party the obligations of Sellers thereunder or in connection therewith. In
that case Buyers agree to pay, perform and discharge, and indemnify each of Sellers and
their Affiliates for and hold each of them harmless against, all liabilities of each of
Sellers and their Affiliates relating to such performance or failure to perform, and in
the event of a failure of such indemnity, Sellers and each of their Affiliates shall
cease to be obligated under this Agreement with respect to the contract which is the
subject of such failure.





	 	10.5	 	Assignment of Trademarks With the Consent of a Third Party Only





	 	(a)	 	With respect to the Trademarks listed in
Schedule 10.5(a), Buyers
acknowledge that such trademarks cannot be assigned to Buyers
unless the third party identified in Schedule 10.5(a) gives its consent
or unless it is clarified that Buyers are entitled to enter into an
agreement with such third party. As soon as reasonably practicable
after the date hereof, Sellers and Buyers shall enter into good faith
negotiations with such third parties to obtain such consent effective
as of Closing. If such consent has not been obtained as of Closing, Sellers
and Buyers shall, from and after the Closing, continue to cooperate and use
Reasonable Best Efforts to obtain any such consent that remains outstanding.
	 
	 	(b)	 	Buyers acknowledge that, with respect to the Trademarks listed in
Schedule 10.5(b)(1), such trademarks cannot be assigned to, and
with respect to the Trademarks listed in Schedule 10.5(b)(2) cannot
be used by, Buyers as long as the third party identified in such
schedule is entitled to insist on the use of such trademarks in
combination with the trademark «Roche» or «Syntex». In each case,
as soon as reasonably practicable after the date hereof, Sellers and
Buyers shall enter into good faith discussions with such third parties
to obtain permission to use such trademark without the Trademark
«Roche» or «Syntex» or to obtain permission to use such trademarks
in combination with a Trademark owned or used by Buyers or any of
their Affiliates effective as of Closing. If such consent has not been
obtained as of Closing, Sellers and Buyers shall, from and after the



70








 

\




	 	 	 	Closing, continue to cooperate and use Reasonable Best Efforts to obtain any such
permission that remains outstanding.
	 
	 	(c)	 	With respect to the Trademarks listed in
Schedule 10.5(c), Buyers
acknowledge that such trademarks can only be assigned to Buyers under the conditions that
such trademark is not associated with the Hexagon or with a Trademark used by the Roche
Group for other products which are not the subject matter of this Agreement and such
association can be dissolved. As soon as reasonably practicable after the date hereof,
Sellers and Buyers shall use their Reasonable Best Efforts to find possible ways to
assign and/or re-register, as the case may be, such trademarks to Buyers without such
association. If such associations with respect to any of such Trademarks cannot be
dissolved, Sellers shall grant, in the relevant countries, an exclusive, irrevocable and
royalty-free licence for the use of such Trademarks.





	 	10.6	 	Recording of Assignment





	 	(a)	 	At or within a reasonable time after the Closing, Buyers shall prepare and Sellers
shall execute such documents as Buyers may reasonably request in order to record the
assignment of the Transferred Orion Trademarks, the Transferred Orion Other Intellectual
Property Rights, the Transferred Orion Product Registrations and Transferred Orion
Governmental Authorizations. Buyers shall file, as expeditiously as commercially
reasonably practicable, for the recording of the transfer of such trademarks (with the
exceptions of those trademarks which Buyers do not intend to use), other intellectual
property rights and product registrations with the competent authorities. The
responsibility and third party expenses of preparing and filing such documents and any
action required ancillary thereto shall be borne solely by Buyers. Buyers shall indemnify
each of Sellers and their Affiliates for, and hold each of them harmless against, any
loss or damage, including fees, penalties or fines and third party claims, due to Buyers’
failure to record any assignment of any such trademarks, other intellectual property
rights and product registrations pursuant to this Article, unless such failure is related
to any failure or delay of Sellers or any of their affiliates in performing necessary
acts or provide necessary information.
	 
	 	(b)	 	Subject to reimbursement by Buyers in accordance with the
principles set forth in
Article 8.2(a) (with respect to the period



71








 






	 	 	 	between the date hereof and the recording of the assignment under this Article 10.6),
Sellers shall pay or cause to be paid any fees for renewal and maintenance of any of the
Transferred Orion Trademarks (other than those Buyers do not intend to use), Transferred
Orion Other Intellectual Property Rights and Transferred Orion Product Registrations and
Transferred Orion Governmental Authorizations that are due prior to the recording of the
assignment under this Article 10.6 unless Buyers request Sellers to do otherwise. In
addition, Sellers shall do all things necessary for Buyers to obtain standing in any
proceedings in relation to any of the intellectual property rights referred to in this
Article the recording of which has not been effected; provided, however, that it shall be
understood that any costs and expenses relating to such proceedings, as of Closing and
subject to Buyers’ rights under Article 5.1 and the respective schedule thereto, shall be
borne by Buyers. For the period prior to Closing, Sellers shall, subject to the
principles set forth in Article 7, retain exclusive responsibility for the renewal and
maintenance, including measures of defence, of any of the intellectual property rights
referred to in this Article.
	 
	 	(c)	 	Article 10.6(a) and (b) shall apply accordingly with respect to the Trademarks,
other Intellectual Property Rights and product registrations owned by or registered in
the name of any of the Orion Companies.





	 	10.7	 	Corporate Name, Trademarks and Domain Names





	 	(a)	 	Except as set forth in Schedules 2.2.1(a)(i), 2.2.1(a)(ii),
2.2.1(a)(vi) and Annex 5.1.11(b), no interest in any corporate name,
corporate design, Trademark, domain name or copyright of Sellers or any of their
Affiliates is being transferred to Buyers pursuant to this Agreement. Buyers shall
procure that the Orion Business, as soon as reasonably possible and in no event later
than six (6) months following the Closing, shall change or remove the corporate names,
Trademarks, domain names and copyrights which include the word «Roche» or «Syntex» or any
combination containing the word «Roche» or «Syntex» or any other word or words resembling
the word «Roche» or «Syntex», including, but not limited to, the Roche housemark and the
hexagon, used by Sellers in connection with the businesses of the Roche Group. Except as
specifically contemplated herein, as from the Closing, Buyers shall not, and shall
procure that



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	 	 	 	the Orion Business shall not, take any action that might create the impression for a
reasonable consumer that the Orion Business continues to be a part of Sellers or any of their
Affiliates. Notwithstanding anything in the foregoing, with respect to material requiring
prior registration with, or approval by, governmental authorities, including, but not limited
to, packaging material and the marketing material used in connection therewith, the time
limitation set forth above shall not apply, it being understood, however, that Buyers shall
undertake their best efforts to obtain any necessary registration or approval as expeditiously
as possible after the Closing, if at all possible, within twelve (12) months after the
Closing.
	 
	 	(b)	 	Notwithstanding the foregoing:





	 	(i)	 	following the Closing (but subject to applicable laws and regulations in the
respective territory), the Orion Business shall be entitled to sell the product-related
Inventory of the Orion Business, including packaging material and the marketing material
used in connection therewith, existing as at the Closing which is labelled with the word
«Roche» and «Syntex» until such inventory is exhausted; provided, however, that Buyers
shall use the «Roche» and «Syntex» labelling
only in connection with a clear identifier of Buyers and/or the Orion Business for
commercializing such Inventory if and to the extent required by applicable law;
	 
	 	(ii)	 	if there is not sufficient packaging material, including packaging inserts, for the
packaging of products with the imprint of «Roche», the Roche hexagon or «Syntex»
contained in the Inventory as existing at Closing, Buyers or the Orion Business shall be
entitled to produce or otherwise obtain the respective missing packaging material under
which such products have been sold prior to Closing and sell the so packaged products
until such products are exhausted; and
	 
	 	(iii)	 	Buyers shall have an exclusive and royalty-free licence for the trademarks
Rochelle® and Rochevit® to use such trademarks in the countries in which, as of the date
hereof, products of the Orion Business are identified by, and marketed under, such
trademarks, and with respect to such products only; provided, however, that such
trademarks are only used in connection with



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	 	 	 	a clear identifier of Buyers as the new registree associated with such trademark;
provided further, that Buyers undertake to cause the Orion Business within no later
than ten (10) years, with respect to Rochelle, and three (3) years, with respect to
Rochevit, from the Closing, to market the product(s) currently identified by such
trademarks under a trade name substantially different from Rochelle® and Rochevit®.
As of the date on which such trade name change has been effected but in no event
later than ten (10) years (with respect to Rochelle®) and three (3) years (with
respect to Rochevit®) from the Closing, the licences granted hereunder shall expire
(it being understood that Sellers shall not have the right to revoke such licences
at any time before such date) and Buyers and/or the Orion Business undertake not to
use Rochelle® and Rochevit® or any similar trade name in any way whatsoever.





	 	(c)	 	Sellers shall not, and shall cause their Affiliates not to, assert against
Buyers, or any entity being part of the Orion Business, any cause of
action based upon infringement of any of the intellectual property
rights owned by the Roche Group that Buyers and any entity being
part of the Orion Business are, pursuant to, and in accordance with,
the terms of Article 10.7(a), authorized to use for a transitional period
of time. The non-assert obligation set forth in the preceding sentence
shall apply accordingly to Buyers in relation to Sellers in the event
that Sellers or any of their Affiliates continue to operate part of the
Orion Business, and commercialize the respective products, in the
period between the Closing and the relevant Local Closing or during
the transitional period, and for that purpose, use Orion Intellectual
Property Rights owned by BHC or any of their Affiliates.
	 
	 	(d)	 	Sellers shall explore with Buyers appropriate and reasonable ways to
re-direct, for a period of up to twelve (12) months following the
Closing, customers of the Orion Business visiting Sellers’ web sites to
the web sites of the Orion Business or to a web site designated by
Buyers.





	 	10.8	 	Transferred Employees





	 	(a)	 	The parties agree that the employees listed in Schedule 10.8(a), as updated
between the date hereof and Closing (the Transferred Employees), shall be transferred
from Sellers to Buyers at the



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	 	 	 	Closing or Local Closing, as the case may be, in accordance with this Article 10.8. The
parties shall jointly endeavor to convince all Transferred Employees not to object to the
transfer of their employment relationship in accordance with this Article 10.8. Sellers agree
that, without the Buyers’ written consent (which consent shall not be unreasonably withheld),
it will not take any action that would result in any material changes to Schedule
10.8(a). As soon as permissible in each individual country following the date hereof,
subject to the confidentiality undertakings as set forth in Article 14.8 and applicable data
protection laws and regulations, Sellers shall set forth in Schedule 10.8(a) with
respect to each Transferred Employee divided per countries: name, base salary or wages, job
title or function, contractual special termination protection status, employment service and
expatriate status. Furthermore, the Sellers agree to provide to Buyers such information
relating to the employment of the Transferred Employees as Buyers may reasonably request.
	 
	 	(b)	 	In countries where the EU-Directive of 14 February 1977 (77/187) as
last amended with Directive dated 12 March 2001 (2001/23) (the
Transfer Directive) has been converted into local law or in countries
in which similar legal regimes apply and in which the parties consider
the sale of the Orion Business to be the sale of a business or a partial
business in the meaning of the Transfer Directive or local law, the
transfer of the Transferred Employees concerned shall occur in
accordance with the applicable local statutory provisions.
	 
	 	(c)	 	Article 10.8(b) shall apply accordingly for Transferred Employees in
countries which have adopted local law in accordance with the
Transfer Directive referred to under Article 10.8(b) but where the
parties do not expect a transfer of the business or a part of the
business to be present or where contrary to the expectation of the
parties expressed above in Article 10.8(b) an automatic transfer of
the employment relationships envisaged by the parties does not
occur under local law. The transfer of Transferred Employees
covered by this subsection, if not automatically achieved, shall be
effected where possible by a trilateral agreement between the
respective Asset Seller Company, the respective entity designated by
Buyers pursuant to Article 3.4 and the Transferred Employee.
Subject to applicable laws and regulations, the employment of the
Transferred Employee with Buyers or respective entity designated by



75









 






	 	 	 	Buyers pursuant to Article 3.4 shall be at terms and conditions that (i) in the aggregate are
economically equivalent to those that applied to such Transferred Employee immediately prior
to the Closing and (ii) do not adversely change the seniority rights of such Transferred
Employee as existing immediately prior to the Closing.
	 
	 	(d)	 	In countries not covered by Article 10.8(b) or Article 10.8(c), Buyers
agree, subject to applicable laws and regulations, to offer as of the
day immediately following Closing or Local Closing, as case may be,
or to cause the respective entity designated by Buyers pursuant to
Article 3.4 to offer, to continue the employment of each Transferred
Employee of the respective Asset Seller Company at terms and
conditions that (i) in the aggregate are economically equivalent to
those that applied to such Transferred Employee immediately prior to
the Closing and (ii), except in cases of section (e) of this Article 10.8,
do not adversely change the seniority rights of such Transferred
Employee as existing immediately prior to the Closing. Buyers shall
have the right to modify such terms and conditions for the period
thereafter to align them to those existing at Buyers; provided,
however, that for the first period of twelve (12) months after the
Closing, subject to Article 10.8(e), such terms and conditions are, on
an aggregate basis, substantially maintained.
	 
	 	(e)	 	In cases in which local law requires termination of the employment
relationship of the Transferred Employees and local law requires or it
is customary that Sellers settle all termination benefits, termination
indemnities, severance payments and all other payments due to any
Transferred Employee as the result of such termination of
employment (the Termination Liabilities), Buyers shall, unless
otherwise agreed between the parties, not take over the accrued
seniority rights of the Transferred Employees and the Termination
Liabilities shall be fully settled by Sellers by written agreement with
the Transferred Employees or Transferred Employees’
representatives or unions, if binding on all applicable Transferred
Employees. If such a form of settlement is not permitted by law or
such settlement cannot be completed prior to Closing or Local
Closing, as the case may be, the Buyers shall assume the
Termination Liabilities, and Sellers shall on a country-by-country
basis pay to Buyers on Closing or Local Closing, as the case may be,
the calculated amount of such Termination Liability in local currency.
Upon settlement of such Termination Liability Sellers shall provide to



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	 	 	 	Buyers (y) the value of each Termination Liability settled and (z) a copy of each such
settlement agreement.
	 
	 	(f)	 	Buyers shall have the right to modify the terms and conditions of
employment for the Transferred Employees for the period after the
Closing or as the case may be, the Local Closing to align them to
those existing at Buyers; provided, however, that for a period of
twelve (12) months after the Closing or, as the case may be, the
Local Closing, subject to Article 10.8(n), such terms and conditions
are, on an aggregate basis, substantially maintained.
	 
	 	(g)	 	The parties shall, in compliance with applicable local laws and
regulations and to the extent legally required, in a timely manner
jointly notify the Transferred Employees and their employee
representatives of the expected date of transfer, the reasons for the
transfer and the legal, economic and social consequences such
transfer will have on their employment.
	 
	 	(h)	 	Between the date hereof and Closing or Local Closing, as the case may be, the parties shall
with reasonable efforts cooperate to identify the most suitable procedure for the transfer of
the Transferred Employees as described above.
	 
	 	(i)	 	Sellers shall be responsible for any severance or other obligations owed or paid, whether
before, on or after Closing or Local Closing as the case may be, and whether by Sellers or
Buyers, to any employee who refuses to or otherwise does not transfer to or become a
continuing employee of the Buyers or the respective entity designated by Buyers pursuant to
Article 3.4.
	 
	 	(j)	 	In addition, Sellers shall be responsible for any Termination Liabilities or other
obligation with respect to employees at Seller-sites not transferred to Buyers as well as for
any obligation that may arise from or in connection with claims of employees other than the
Transferred Employees who transfer by operation of law or claim to have transferred by
operation of law, or otherwise, to any of the Buyers. Sellers shall also be responsible for
any obligation that may arise from or in connection with claims of Transferred Employees or
governmental bodies or institutions exercising governmental functions and insurances with
respect to wages, tax (including, without limitation, tax at source on income), social
security and other



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	 	 	 	contributions, provisions or any other benefits relating to or having their cause prior to
Closing or Local Closing, as the case may be, unless such obligation is reflected in the
purchase price adjustments as finally and bindingly determined pursuant to Article 2.7.2
	 
	 	(k)	 	Sellers’ obligation under Article 10.8(i) shall not exist with respect to any particular
Transferred Employee if the Buyers or the respective entity designated by Buyers pursuant to
Article 3.4 have actively discouraged, directly or indirectly, such Transferred Employee
from agreeing or not objecting to the transfer of his or her employment. In such case Buyers
shall indemnify Sellers from such severance; provided, however, the delivery of any notice,
including those required by local law or as delivered to the Transferred Employees in
accordance with Article 10.8(e) accurately setting forth the Buyers’ intentions with respect
to the Orion Business (including any work force reductions) shall not be deemed to be a
discouragement for purposes of this clause.
	 
	 	(l)	 	Buyers shall defend, indemnify and hold harmless Sellers and their, Affiliates for and
against all costs, expenses or other damages that may arise from or in connection with claims
asserted by any Transferred Employee for Buyers’ failure to offer employment to any
Transferred Employee in accordance with the terms of this Agreement or in compliance with
mandatory law. If the transfer of employees follows Article 10.8(d) of this agreement, Buyers
will for the avoidance of doubt provide Sellers with the details of the respective offer of
employment in advance.
	 
	 	(m)	 	Any severance or other obligations arising from the Buyers’ termination of employment or
the termination of employment by the respective entity designated by Buyers pursuant to
Article 3.4 of any Transferred Employee post-Closing or post-Local Closing, as the case may
be, for post-Closing or post-Local Closing periods of services shall be the responsibility
of the Buyers.
	 
	 	(n)	 	Buyers undertake to abstain for a period of six (6) months after the Closing from
unilateral termination of employment of Transferred Employees in a number that would
qualify as a Significant Dismissal in the country concerned.



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	 	(o)	 	Obligations vis-à-vis the Transferred Employees with regard to Christmas or
holiday bonuses or other non-periodical benefits (including non-fulfilled entitlements to
vacation, but excluding any retention bonuses) shall, within eight (8) weeks after
Closing or Local Closing, as the case may be, be fairly allocated and compensated between
Sellers and Buyers locally on a pro rata temporis basis for the period before and after
Closing or Local Closing, as the case may be. The amount to be compensated shall be
proposed by Sellers (supported with appropriate documentation) upon presentation of a
complete list of such obligation at Closing or Local Closing, as the case may be, and
then agreed upon between Sellers and Buyers.
	 
	 	(p)	 	Buyers acknowledge that Transferred Employees having expatriate status on Closing
or Local Closing, as the case may be, will be allowed to continue work under the status
and the respective terms and conditions.
	 
	 	(q)	 	Buyers shall be solely responsible for all salaries, wages and other benefits
accruing after Closing or Local Closing, as the case may be, with respect to the
Transferred Employees.





	 	10.9	 	Management Incentive Plans
	 
	 	 	 	Sellers have established management incentive plans for the management and certain key
personnel of the Orion Business that are linked to the successful consummation of the
transactions contemplated under this Agreement. Incentives contemplated under such plans will
be at the discretion of Sellers. All costs related to such plans will be borne by Sellers and
will not result in any obligations or disadvantages for Buyers.
	 
	 	10.10	 	Document Retention and Access





	 	(a)	 	On and after the Closing, Buyers shall procure that the Orion Business (i) shall
preserve all books, business correspondence and records relating to the period prior to
the Closing for the longer of (1) a period of ten years commencing with the expiration of
the business year in which (x), as to the books, the last entries have been made, (y), as
to the business correspondence, such business correspondence has been received or sent,
and (2), as to the records, the relevant accounting records have originated, or (3) the
period required by applicable mandatory law; and (ii) shall not destroy



79









 






	 	 	 	or dispose of such records without giving notice to Sellers of such pending disposal and
offering such records to Sellers. If Sellers have not requested such records within ninety
(90) Business Days following receipt of notice from Buyers, Buyers may proceed to destroy, or
dispose of, such records. If Sellers request such records, they shall hold them confidential
and not disclose them to any third party (other than to advisers on a confidential basis)
unless disclosure of such records by Sellers is required (i) by applicable law, (ii) in order
for Sellers to comply with contractual or other obligations binding upon them, or (iii) to
effectively pursue any of the rights Sellers may have vis-à-vis a third party, including tax
or other governmental authorities.
	 
	 	(b)	 	Until the tenth (10th) anniversary of the Closing, or such longer time
period as required by law, and subject to the attorney-client privilege,
Buyers shall procure that the Orion Business shall afford Sellers and
their advisers reasonable access, upon prior notice during normal
business hours, to such directors, officers, employees, advisers,
offices, properties, agreements, records, books and affairs of the
Orion Business, and shall provide copies of such information, as
Sellers may reasonably request in connection with:





	 	(i)	 	the preparation of any Tax Returns in so far as the Orion Business is relevant to
them;
	 
	 	(ii)	 	any judicial, quasi-judicial, administrative, Tax, audit, or arbitration
proceedings involving or affecting Sellers or their Affiliates which relate to or
involve the Orion Business or its affairs; and
	 
	 	(iii)	 	the preparation of any financial statements or reports in so far as the Orion
Business is relevant to them.





	 	(c)	 	Articles 10.10(a) and 10.10(b) shall apply accordingly vice versa in
relation between the Orion Business or the Buyers, as the case may
be, and the Sellers and their Affiliates with respect to documents
which are relevant for the Orion Business but are not part of the
Transferred Orion Assets.





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	 	10.11	 	Safety Data and Clinical Documentation





	 	(a)	 	The parties shall enter into a pharmacovigilance agreement
substantially in the form of Schedule 10.11 (it being agreed that the
only issues still to be negotiated are those that are highlighted
therein) covering the exchange and flow of safety information
between the parties and to competent authorities, including, but not
limited to, the transfer of historical safety reports (as set forth in
Schedule 10.11) and safety data base responsibilities within thirty
(30) Business Days of the date hereof unless agreed otherwise
between the parties.
	 
	 	(b)	 	To the extent required by law or the competent authorities, Sellers
shall provide Buyers with access to, and where necessary, with
copies of, the clinical documentation, including R & D procedures,
relating to Naproxen products and such other products (i) that are
identical or similar to each other, (ii) that are the subject matter of this
Agreement and (iii) the clinical documentation of which are in Sellers’
possession and relevant for regulatory purposes.
	 
	 	(c)	 	Sellers shall not consent to any toxicological, pharmacological and/or
clinical references contained in competent authorities’ files on a
product of the Orion Business being used for the purpose of
examining an application for a marketing authorization by a third
party.





	 	10.12	 	Insurance
	 
	 	 	 	Buyers acknowledge and agree that as of the Closing, subject to the requirements of
mandatory law, neither the Orion Business nor any of their directors, officers or employees
has been or will be insured
under (i) property damage and business interruption, (ii) general liability, including product
liability and employer’s practices liability insurance and (iii) marine transport insurance.
Sellers undertake to continue to insure the Orion Business in full compliance with mandatory
laws through to the Closing, whereas Buyers undertake to continue to insure the Orion Business
in full compliance with mandatory laws as of the Closing.



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	 	10.13	 	Non-Competition





	 	(a)	 	Sellers will not, and shall cause their Affiliates (for so long as they are
Affiliates of Sellers) not to, for a period of three (3) years from the
Closing, directly or indirectly acquire, own, participate or engage in,
anywhere in the world (other than in the markets relating to the
Excluded Assets), the development, manufacture, marketing, sale or
supply of products for the consumer health market of a type similar
to, or competitive with, those developed or under development (to the
extent specifically identified in the Orion Business Plan),
manufactured, marketed, sold or supplied by the Orion Business prior
to the Closing (such development, manufacture, marketing, sale or
supply of products for the consumer health market being referred to
herein as the Protected Activity).
	 
	 	(b)	 	Notwithstanding the foregoing, Sellers and their Affiliates shall not be
prohibited from, or restricted in:





	 	(i)	 	continuing to engage in any type of business conducted by Sellers or any
of their Affiliates as of the date hereof which is not part of the Orion Business;
	 
	 	(ii)	 	developing, marketing, selling, manufacturing or supplying products that
are under development by Sellers or any of their Affiliates as of the date hereof
which are not part of the Orion Business;
	 
	 	(iii)	 	purchasing products or services from, or marketing, selling,
manufacturing or supplying products to, an entity which is engaged in the Protected
Activity;
	 
	 	(iv)	 	acquiring or entering into a business combination in any manner with any
entity that is engaged in the Protected Activity; provided, however, that if, and to
the extent, Sellers, within a period of three (3) years as of Closing, by one or
more acquisition or combination (y) have accumulated more than EUR 200,000,000
cumulative annual consolidated net revenue in the Protected Activity or (z) have
acquired an entity which in its last full fiscal year prior to the acquisition had
total consolidated revenues of more than 33 1/3 % in the Protected Activity (each
(y) and (z) a Protected Revenue), Sellers shall,



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	 	 	 	in the case of (y), divest at least that part of the Protected Revenue that exceeds EUR
200,000,000 of annual consolidated revenue and, in the case of (z), divest at least
that part of the Protected Activity that exceeds 33 1/3 % of the total consolidated
revenue, and in each case give Buyers an opportunity to participate in the divestiture
process; it being understood that Sellers shall initiate such divestiture process
within six (6) months of, in the case of (y), having exceeded the EUR 200,000,000
threshold, and in the case of (z), having acquired an entity with a Protected Revenue; and
	 
	 	(v)	 	holding or taking (whether directly or indirectly) a financial interest in
securities of an entity with Protected Activity which are held for investment purposes
only, if (x) such interest amounts to less than ten percent (10 %) of the issued
securities of a company which is listed on a generally recognized stock exchange or
thirty-three one third percent (33 1/3%) of the issued securities of a privately held
company; (y) such interest carries less than ten percent (10 %) and thirty-three one
third percent (33 1/3 %), respectively, of the voting rights (if any) attaching to the
issued securities of the issuer; and (z) Sellers are not involved in any way whatsoever,
whether directly or indirectly, in the management of the issuer of the securities or of
any Person connected with the issuer other than by the exercise of voting rights
attaching to the securities.





	 	(c)	 	Sellers undertake, for the benefit of Buyers, their Affiliates and the Orion Business, that
they shall not, and that none of their Affiliates (other than Orion Companies) shall:





	 	(i)	 	induce, or attempt to induce, any supplier, distributor or customer of the Orion
Business to cease to supply, distribute or purchase, or to restrict or vary the terms of
supply, distribution or purchase, to the Orion Business, Buyers or any of their
Affiliates;
	 
	 	(ii)	 	for a period of three (3) years after the date of this Agreement hire or attempt
to hire any Orion Key Person for employment with Sellers or any of their Affiliates;
provided, however, that the foregoing shall not apply (i) to responses to or follow-up
hiring in respect of general solicitations or advertisements for job



83








 






	 	 	 	positions not specifically directed to the Orion Key Persons; (ii) to any Orion Key
Person who is terminated by Buyers or the Orion Business or terminates his or her
employment with Buyers or the Orion Business without any solicitation from Sellers
or any of their Affiliates; or (iii) to hiring with the prior written consent of
Buyers; and
	 
	 	(iii)	 	for a period of two (2) years after the date of this Agreement induce,
or attempt to induce, any employee of the Orion Business to enter into employment
with Sellers or any of their Affiliates; provided, however, that the foregoing
shall not apply (i) to responses to or follow-up hiring in respect of general
solicitations or advertisements for job positions not specifically directed to the
employees; (ii) to any employee who is terminated by Buyers or the Orion Business
or terminates his or her employment with Buyers or the Orion Business without any
solicitation from Sellers or any of their Affiliates; or (iii) to employment with
the prior written consent of Buyers.





	 	10.14	 	Inter-company Trade Balances





	 	The parties agree that all inter-company trade balances between the Roche Group and the
Orion Business (other than those being part of the (Estimated) Inter-Company Obligations to
be repaid by Sellers to Buyers pursuant to Article 4.3.1 (e) or by Buyers to Sellers pursuant
to Article 4.3.2(b)) which have arisen in the ordinary course of business and which are not
settled as of Closing or, as the case may be, as of a Local Closing, shall be paid within the
originally agreed period.





	 	10.15	 	No Recourse Against Directors





	 	(a)	 	Neither Sellers nor Buyers shall make, and procure that the Orion
Business shall not make, any claim against any director or officer of
the Orion Business, including, but not limited to, the Orion Key
Persons, in connection with this Agreement or the agreements
pursuant hereto or otherwise in connection with the transactions
contemplated hereby.
	 
	 	(b)	 	At the first annual meeting of each Orion Company, Buyers shall
vote, or cause the relevant shareholders or other stakeholders to
vote, in favour of an unconditional discharge to the directors and



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	 	 	 	officers of each of the Orion Companies in connection with their respective conduct of
the business of the Orion Companies in the period up to the Closing; provided, however,
that at such time there are no valid reasons to withhold such unconditional discharge.





	 	10.16	 	Further Assurances
	 
	 	 	 	At any time or from time to time after the Closing, at Buyers' reasonable
request, Sellers shall: (i) execute and deliver to Buyers such other instruments of sale,
transfer, conveyance, assignment and confirmation; (ii) provide such materials and
information, including documents relating to the transfer of product registrations; and (iii)
take such other actions, including assistance relating to the transfer of product
registrations or, to the extent the product registrations are not transferable, to the
re-issuance of a replacement registration, in order to effectively transfer, convey and
assign to Buyers, to confirm Buyers’ title to, all of the Transferred Orion Assets, and, to
the full extent permitted by law, to put Buyers in actual possession and operating control of
the Transferred Orion Assets. For the avoidance of doubt, Sellers’ obligations under
subsection (i), (ii) and (iii) hereof shall apply to any rights, properties, and assets
related exclusively to the operation of the Orion Business as at the Closing, or as the case
may be, at the Local Closing, that have, for whatever reason, not been reflected in any of
the schedules to Article 2.2.1 (a) or, despite so reflected, not been transferred at Closing
or at the relevant Local Closing.
	 
	 	10.17	 	Set-off Rights
	 
	 	 	 	Buyers and Sellers shall not be entitled to set-off any of their claims they may have
against each other, or otherwise withhold the proper payment of any amount payable under this
Agreement or any agreements pursuant hereto, regardless of whether such claims are in
connection with, this Agreement or otherwise, unless the respective other party has agreed to
a set-off or in cases of set-off with amounts resulting from a final arbitration award under
this Agreement.
	 
	 	10.18	 	Supply of Products to the Roche Group
	 
	 	 	 	Buyers shall procure that the Orion Business, as from Closing, shall continue to deliver
and sell to FHLR, for resale in the Basel region (including Grenzach, Village-Neuf and
Kaiseraugst) to the respective employees of the Roche Group (including retired employees), at
a price of



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	 	 	 	thirteen point five (13.5) percent below the wholesale price, any of the products marketed by
the Orion Business to end-consumers in Switzerland as at the Closing. Sellers undertake, for
and on behalf of the Roche Group, not to sell any of such products for less than thirty (30)
percent below the market price charged to end-consumers in Switzerland. Sellers acknowledge
that the Orion Business will not give any marketing support in connection with such resale.
At the expiry of three (3) years as from Closing, the parties undertake to renegotiate in
good faith the terms of the delivery and sale provided for hereunder.
	 
	 	10.19	 	Several Liability and Assumption of Liability





	 	(a)	 	Each of Sellers shall only be liable under this Agreement for the
specific obligations attributable to it under this Agreement, except,
however, that Roche Holding shall assume direct and unconditional
liability for all the obligations of all Sellers under this Agreement.
	 
	 	(b)	 	Each of Buyers shall only be liable under this Agreement for the
specific obligations attributable to it, except that BHC shall assume
direct and unconditional liability for all the obligations of all Buyers
under this Agreement.





	 	10.20	 	Returned Goods
	 
	 	 	 	Sellers will compensate Buyers for the costs and expenses, to the extent not accounted
for in the Final Closing Balance Sheet and to the extent exceeding the three (3) year
historical average return rate, which arise in connection with products sold by the Orion
Business into the trade prior to Closing which are returned to the Orion Business within
twenty-four (24) months of the Closing based on a contractual right (other than a right based
on the non-compliance of the Orion Business with (i) the warranties or representations
expressly or implicitly given or (ii) applicable laws (which are addressed in section 22 of
Schedule 5.1)) without the Orion Business receiving an adequate benefit; it being understood
that any returns accepted by the Orion Business without being so legally required shall not
give rise to any compensation by Sellers hereunder.
	 
	 	10.21	 	Trademarks Registered in Japan
	 
	 	 	 	Sellers undertake to use Reasonable Best Efforts to facilitate discussions between BHC or
one of its Affiliates and Chugai Pharmaceutical Co. Ltd.




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	 	 	 	regarding acquisition by BHC or one of its Affiliates of the Japanese OTC trademarks set forth
in Schedule 10.21. BHC acknowledges that Chugai Pharmaceutical Co. Ltd. acts
independently of the Roche Group in reaching its decision of whether to exercise its rights of
first refusal and on which terms it may be willing to waive such rights.
	 
	 	10.22	 	Trademarks Retained by Sellers / Switches / Disposals





	 	(a)	 	Buyers acknowledge that Sellers and/or their Affiliates, in certain
countries, will continue to commercialize in the Rx market segment
products identified by Trademarks (trade names) that are identical
with those being transferred hereunder in accordance with
Schedule 2.2.1(a)(i) and Annex 5.1.11(b). With respect to such
products, Sellers shall, in the event and at the time such a product in
a certain country (other than the United States and Japan) is
switched from an Rx to an OTC status, be required to offer to BHC,
with respect to such country, the rights to such product, including the
Trademark, for acquisition at terms and conditions to be negotiated
and mutually agreed at such time. If an agreement has not been
reached within a reasonable time, or if BHC turns down the offer,
Sellers shall be free to continue to commercialize such product
(retaining the Trademark used prior to the switch to OTC) or to
dispose of both such product and the Trademark identifying it prior to
the switch to OTC. For the avoidance of doubt, the right of first offer
set forth in this Article 10.22(a) shall not apply to any of the other
products of the Roche Group.
	 
	 	(b)	 	In the event Sellers intend to divest the products identified by
Trademarks (trade names) that are identical with those being
transferred hereunder in accordance with
Schedule 2.2.1(a)(i) and
Annex 5.1.11(b) to a third party, Sellers shall be required to offer to
BHC the rights to such products for acquisition at terms and
conditions to be negotiated and mutually agreed at such time. If an
agreement has not been reached within a reasonable time, or if BHC
turns down the offer, Sellers shall be free to divest such products to a
third party.



87








 











	 	10.23	 	Option Regarding IBM Maintenance Agreement
	 
	 	 	 	FHLR hereby undertakes not to exercise the option granted to it by IBM Switzerland to
enter into that certain IBM maintenance agreement, attached hereto as Schedule 10.23.
	 
	 	10.24	 	SIGEM
	 
	 	 	 	Buyers shall have the right to request, no later than 31 October 2004, that Sellers
retain the participation in SIGEM and cause LRN to transfer such participation to Sellers or
a designated Affiliate of Sellers without any residual liability for LRN. The parties
acknowledge that the schedules and annexes, including the Disclosure Documents, relating to
SIGEM, are incomplete. Sellers undertake to update such schedules and annexes no later than 1
October 2004. For purposes of disclosure identification, the data set forth in such schedules
and annexes shall relate back to the date hereof.
	 
	 	10.25	 	Impairment of Orion Manufacturing Sites
	 
	 	 	 	If, at the Closing or, as the case may be, the Local Closing, any of the Orion
Manufacturing Sites or parts thereof cannot be transferred in substantially the physical form
and function existing as of the date hereof (the Impairment), Sellers shall compensate
Buyers, to the extent not covered by insurance claims under Article 2.2.1 (a)(xv) and moneys
received thereunder, for the market value of the relevant Orion Manufacturing Site or parts
thereof and for lost profits arising as a result of the Impairment, such lost profits
calculated on the basis of net profits after tax and limited to a period of two years and CHF
30 million in each year; it being understood that normal wear and tear and depreciation
(unrelated to the physical form and function) shall not be considered an Impairment
hereunder; provided further, however, that Buyers' rights hereunder shall be in
addition to, and not in lieu of, any other rights Buyers may have under this Agreement.
	 
	 	10.26	 	Capital Expenditures





	 	(a)	 	Sellers shall procure in good faith that the capital expenditures specified in the
Orion Business Plan for the business year 2004 shall be expensed as reflected therein
before December 31, 2004.
In case such expenditures have not been made before that date, Sellers shall



88








 






	 	 	 	compensate Buyers in the amount of the difference between the capital expenditures set
forth in the Orion Business Plan and those actually expensed, provided that the
difference exceeds an amount of CHF 500,000.
	 
	 	(b)	 	The compensation obligation set forth in section (a) of this Article 10.26 shall
apply accordingly to Buyers in case the capital expenditures expensed by Sellers before
December 31, 2004 exceed the amounts set forth in the Orion Business Plan by more than
CHF 500,000.





	11.	 	Limitations on Sellers’ Liability





	 	(a)	 	Sellers shall not be liable to Buyers for any claims for damages
asserted by Buyers against Sellers under this Agreement unless the
amount of liability against Sellers, on an aggregate basis, exceeds
CHF 15,000,000 (the Threshold Amount), in which case Sellers’
liability to Buyers shall be equal to the full amount of such liability
provided, however, that, for claims to be counted against the
Threshold Amount, each such claim, other than any claim under an
indemnity under this Agreement and any claim under Article 10.26, must, on a stand-alone basis, exceed the amount of CHF 200,000
(the De Minimis Amount), it being understood that for purposes of
determining the De Minims Amount, a series of claims shall be
considered one claim if, and to the extent, each of such claims is
based on the same facts, irrespective of whether brought by one or
several claimant(s). The Threshold Amount shall not apply in respect
of any claim (i) for breach of covenants, (ii) under the indemnity set
forth in Article 9.1 (b), (iii) under Article 10.25, and (iv) under the
indemnity set forth in Article 9.4.3 (Grenzach).
	 
	 	(b)	 	Notwithstanding anything in this Agreement to the contrary, Sellers’
aggregate liability under any obligation under this Agreement shall
not exceed thirty (30) percent of the Purchase Price as adjusted
pursuant to Article 2.7.2 (the Cap); provided, however, that the Cap
shall not be applicable if, and to the extent, Sellers’ liability under this
Agreement is caused by fraud or wilful misconduct of Sellers.
	 
	 	(c)	 	Any limitation of Sellers’ liability under Article 11(a) and Article 11(b)
shall not apply to:



89









 











	 	(i)	 	the representation pursuant to section 5.1.1 (b) regarding ownership in Orion
Shares; and
	 
	 	(ii)	 	any indemnity or representation relating to Tax.





	 	(d)	 	Sellers’ liability shall be excluded or reduced, as the case may be, if, and to the
extent:





	 	(i)	 	Buyers and, following Closing, the Orion Business have failed to use their
Reasonable Best Efforts to mitigate their loss or damage in respect thereof;
	 
	 	(ii)	 	Buyers or the Orion Business have recovered or, by applying their Reasonable Best
Efforts, could have recovered, as the case may be, from any third Person, including, but
not limited to, an insurer, costs, expenses or damages in respect of any matter to which
a claim asserted relates, after deduction of all duly documented costs and expenses
incurred in making such recovery (including reasonable attorney’s fees);
	 
	 	(iii)	 	a specific related provision, reserve or valuation allowance has been or is made or
included in the Final Closing Balance Sheet and has been included in the calculation of
the Net Working Capital, the Net Debt or the Provision and Liability Amount, each as
finally and bindingly determined in accordance with Article 2.7.1.
	 
	 	(iv)	 	such liability is attributable to an act, omission, transaction or arrangement of
Buyers or the Orion Business (other than (i) one to which Sellers consented; or (ii) one
which is required or contemplated under the provisions of this Agreement or in order to
comply with applicable law under an enforceable court order) following the execution of
this Agreement (with respect to Buyers only) and the Closing (with respect to Buyers and
the Orion Business), respectively;
	 
	 	(v)	 	the damage or disadvantage suffered by Buyers resulting from a fact or event has
been reflected in the purchase price adjustment according to Article 2.7.2 or taken into
account under Article 12;



90









 






	 	(vi)	 	any Tax payable by the Orion Business is reduced as a result
of a matter giving rise to a claim for misrepresentation, breach of warranty
or indemnity; and
	 
	 	(vii)	 	such claim arises or is increased as a result of any
legislation, regulation, rule of law or practice not in force at the date
hereof or the withdrawal after Closing of any permit previously granted by any
relevant authority or as a result of any change made or introduced on or after
the date hereof in any legislation, regulation, rule of law or practice of any
relevant authority, whether or not such change or withdrawal purports to be
effective retrospectively in whole or in part.





	12.	 	Pension and Benefit Plans





	 	12.1	 	Pension Plans
	 
	 	 	 	Subject to Closing, Sellers and Buyers shall observe and perform the respective
rights and obligations relating to pension matters as set forth in this Agreement and in
Schedule 12.1 as are expressed to be observed and performed by each of them
respectively.
	 
	 	12.2	 	Benefit Plans
	 
	 	 	 	Subject to Closing, Sellers and Buyers shall observe and perform the respective
rights and obligations relating to benefit matters as set forth in this Agreement and in
Schedule 12.2 as are expressed to be observed and performed by each of them
respectively.





	13.	 	Taxes, Costs, Expenses and Interest





	 	13.1	 	Taxes
	 
	 	13.1.1	 	VAT
	 
	 	 	 	Sellers shall be responsible for and will pay any VAT (or equivalent tax) levied in
connection with this Agreement subject to the conditions below:





	 	(a)	 	Sellers and Buyers shall cooperate with each other using their
Reasonable Best Efforts to ensure that the sale and transfer of the Orion Shares
and the Transferred Orion Assets or any part thereof



91








 






	 	 	 	under this Agreement is not treated as either a taxable supply of goods or services or
otherwise taxable for the purposes of VAT, or that the VAT may be settled by filing a
notification instead of paying the VAT in the relevant jurisdiction in which the
respective Orion Shares or the Transferred Orion Assets are situated, in particular
because such sale and transfer is regarded, for purposes of the applicable VAT
legislation, as a transfer of all or part of the assets of a business as a going concern.
	 
	 	(b)	 	If, notwithstanding such efforts, VAT is chargeable on the transfer of
any Orion Shares or any Transferred Orion Assets or part thereof
under this Agreement, it shall be payable by Buyers at the
appropriate rate in addition to the Purchase Price. In such event,
Buyers shall pay to the Sellers the amount of the VAT due 20
(twenty) Business Days following the invoice issued by Seller
relevant for purposes of the VAT but not earlier than 3 (three)
Business days before the Seller has to pay the respective VAT
amount to the competent VAT authority. The Parties shall use
Reasonable Best Efforts to avoid liquidity disadvantages by assigning
Purchasers’ claim to recover VAT and crediting the assigned input
VAT against VAT on the taxable transfer under this Agreement.
	 
	 	(c)	 	Sellers and Buyers shall cooperate to procure that any Orion
Companies shall leave any VAT group, insofar as they are members
to such a group, as at the Closing.





	 	13.1.2	 	Other Taxes





	 	(a)	 	Each party shall bear all Taxes for which it is liable under applicable
law (other than VAT (or equivalent tax) as set forth in Article 13.1.1
above) incurred in connection with the transactions contemplated
under this Agreement, provided, however, that notwithstanding the
foregoing, the Swiss securities transfer stamp tax (Umsatzabgabe), if
any, payable in connection with the transactions contemplated under
this Agreement, shall be borne equally by the parties hereto.
	 
	 	(b)	 	All registration and transfer Taxes and fees, stamp duties, notaries’ or
governmental charges (other than any of the fees referred to in
Article 10.6) resulting from or relating to the transfer or assumption of
the Transferred Orion Assets and the Assumed Orion Liabilities to
Buyers from Sellers shall be borne equally by the parties hereto.



92








 











	 	13.1.3	 	Tax Returns





	 	(a)	 	Sellers shall be responsible for the timely preparation and filing of all
Tax Returns of or with respect to the Orion Companies and the
Transferred Orion Assets required to be filed on or before Closing.
Buyers shall be responsible for the timely preparation and filing of all
Tax Returns of or with respect to the Orion Companies and the
Transferred Orion Assets required to be filed after Closing.
	 
	 	(b)	 	Sellers and Buyers shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing
of Tax Returns and any audit or proceedings with respect to Taxes.
Such cooperation shall include the retention and the provision of
records and information which are reasonably relevant to any such
filing, audit or proceedings and making employees available on a
mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Each party agrees
to retain all of its books with respect to Taxes pertinent to the Orion
Business relating to any Tax Period beginning before Closing until
the expiry of the statutory retention periods and in addition only on
request and at Sellers’ costs until the expiry of the statute of
limitations (and any extensions thereof) relating to Taxes and penalty
proceedings of the respective taxable periods, and to abide by, and
comply with, all record retention agreements entered into with any tax
authority.





	 	13.1.4	 	Disputes
	 
	 	 	 	Buyers shall have exclusive control over and responsibility to conduct any contest for any Tax
Period commencing on or after the Closing. Buyers shall not enter into any agreement in
compromise or settlement of such contest which could adversely affect any Taxes with respect
to the Orion Companies or the Transferred Orion Assets for any period up to and including the
Closing which could adversely affect any Taxes with respect to such period without the written
consent of Sellers. Such written consent shall be given within ten (10) Business Days after
notification from Buyers unless such consent would unduly prejudice good faith interests of
Sellers. Sellers shall not be liable for any portion of any settlement of any contest relating
to such Taxes without their written consent. Sellers shall be deemed to have given its consent
if Sellers failed to provide its comments



93








 







	 	 	 	to Buyers within said period. If Sellers request that Buyers shall initiate or continue a
contest the respective external costs have to be paid by Sellers.
	 
	 	13.2	 	Costs and Expenses
	 
	 	 	 	Except as expressly provided otherwise herein, including, but not limited to Article
8.2, each party shall bear its own costs and expenses (including advisory fees) incurred
in the negotiation, preparation and completion of this Agreement.
	 
	 	13.3	 	Interest





	 	(a)	 	The interest rate to be applied to the interest calculation set forth in
Article 2.7.4 shall be a rate of 3 month EUR-LIBOR (as per Reuters
page LIBOR01 as at the date the relevant payment is due, at 11:00
a.m. C.E.T.) + 25 basis points per annum.
	 
	 	(b)	 	If a party defaults in the payment if and when due of any sum payable
under this Agreement, the liability of such party shall be increased to
include interest on that sum from the date such payment is due until
the date of actual payment (whether before or after judgment) at a
rate of three (3) month EUR-LIBOR (as per Reuters page LIBOR01
as at the date the payment is due at 11:00 a.m. C.E.T) + 300 basis
points per annum.





	14.	 	General Provisions





	 	14.1	 	Effect on Third Parties
	 
	 	 	 	No Person other than the parties hereto shall have any rights or benefits under
this Agreement, and nothing in this Agreement is intended to confer on any Person other
than the parties hereto any rights, benefits or remedies.
	 
	 	14.2	 	Notices
	 
	 	 	 	All notices or other communications to be given under or in connection with the
Agreement shall be made in writing and shall be delivered by (i) personal delivery, (ii)
registered mail (return receipt requested) or the equivalent of registered mail under
the laws of the country where mailed,



94








 






	 	 	 	(iii) a nationally recognized courier, such as Federal Express, DHL or UPS, or (iv) facsimile to
the following addresses:




	 	 	 
	if to Sellers to:

	 	Roche Holding AG
	

	 	Grenzacherstrasse 124
	

	 	4070 Basel, Switzerland
	

	 	Attn: Dr. Erich Hunziker
	

	 	Fax +41 61 688 39 99
	 
	 	 
	with a copy to:

	 	F. Hoffmann-La Roche AG
	

	 	Grenzacherstrasse 124
	

	 	4070 Basel, Switzerland
	

	 	Attn: Head of Corporate Law
	

	 	Fax +41 61 688 13 96
	 
	 	 
	if to Buyers to:

	 	Bayer HealthCare AG
	

	 	Bayerwerk
	

	 	51368 Leverkusen, Germany
	

	 	Attn: Klaus Kühn
	

	 	Fax +49 214 308 2647
	 
	 	 
	with a copy to

	 	Bayer HealthCare AG
	

	 	Bayerwerk
	

	 	51368 Leverkusen, Germany
	

	 	Attn: General Counsel
	

	 	Fax +49 214 308 2986







	 	 	 	or such other address as any of the parties may notify to the other parties in accordance
with the above.
	 
	 	 	 	All notices delivered in person shall be deemed to have been delivered to, and received by, the
addressee and shall be effective on the date of personal delivery; notice by registered mail or
courier shall be deemed effective on the date it was deposited in the mail or delivered to the
courier. Notices delivered by facsimile shall be deemed delivered to, and received by, the
addressee and effective on the date sent.



95








 











	 	14.3	 	Sellers’ Representative and Buyers’ Representative
	 
	 	 	 	With respect to all matters arising in connection with this Agreement, Roche Holding
shall act on behalf of each of the other Sellers, and Buyers shall be entitled to act and rely
upon any statement made or given by Roche Holding on behalf of any other Seller.
	 
	 	 	 	With respect to all matter arising in connection with this Agreement, BHC shall act on behalf
of each of the other Buyers, and Sellers shall be entitled to act and rely upon any statement
made or given by BHC on behalf of any other Buyers.
	 
	 	14.4	 	Entire Agreement
	 
	 	 	 	This Agreement, including the Schedules, Annexes and any other documents referred to
herein, constitutes the entire agreement and understanding among the parties with respect to
the subject matter hereof, and shall supersede all prior oral and written agreements or
understandings of the parties relating hereto. All references to this Agreement shall be
deemed to include the Schedules and Annexes hereto.
	 
	 	14.5	 	Amendments and Waivers
	 
	 	 	 	This Agreement may only be modified or amended by a document signed by all parties
hereto, unless stricter form is required by law. Any provision contained in this Agreement
may only be waived by a document signed by the party waiving such provision.
	 
	 	14.6	 	No Assignment
	 
	 	 	 	The parties shall not assign this Agreement or any rights or obligations hereunder to
any third party without the prior written consent of Sellers (if the assignment is proposed
to be undertaken by Buyers) or Buyers (if the assignment is proposed to be undertaken by the
Sellers).
	 
	 	14.7	 	Severability
	 
	 	 	 	Should any part or provision of this Agreement be held to be invalid or unenforceable by any
competent
arbitral tribunal, court, governmental or administrative authority having jurisdiction, the
other provisions of this Agreement shall nonetheless remain valid. In this case, the parties
shall



96








 






	 	 	 	endeavour to negotiate a substitute provision that best reflects the economic intentions of
the parties without being unenforceable, and shall execute all agreements and documents
required in this connection.
	 
	 	14.8	 	Confidentiality
	 
	 	 	 	Each party hereto will hold, and will use its Reasonable Best Efforts to cause its
Affiliates, and their respective representatives and advisers to hold at all times, in strict
confidence from any Person (other than its Affiliates or their representatives or advisers),
(i) unless compelled to disclose by judicial or administrative process (including, without
limitation, in connection with obtaining the necessary Governmental Approvals of this
Agreement and the transactions contemplated hereby) or by other requirements of law or
regulations derived therefrom or (ii) unless disclosed in an action or proceeding brought by a
party hereto in pursuit of its rights or in the exercise of its remedies hereunder, all
documents and information concerning the other party or any of its Affiliates furnished to it
by such party or its representatives and advisers in connection with this Agreement or the
transactions contemplated hereby, except to the extent that such documents or information can
be shown to have been:





	 	(a)	 	previously known by the party receiving such documents or
information;
	 
	 	(b)	 	in the public domain (either prior to or after the furnishing of such
documents or information hereunder) through no fault and by reason
other than a breach of this confidentiality agreement of such receiving
party; or
	 
	 	(c)	 	later acquired by the receiving party from another source if the
receiving party is not aware that such source is under an obligation to
another party hereto to keep such documents and information
confidential;





	 	 	 	provided, however, that following the Closing the foregoing restrictions will not apply to
Buyers’ use of documents and information concerning the Orion Business furnished by Sellers
hereunder.
	 
	 	 	 	In the event the transactions contemplated hereby are not consummated, upon the request of
the other party, each party hereto will, and will cause its Affiliates and their respective
representatives and advisers to, promptly



97








 






	 	 	 	(and in no event later than five (5) Business Days after such request) return or cause to
be returned all copies of documents and information, including, but not limited to, (i)
the Disclosure Documents and (ii) the documents and information furnished pursuant to
Article 7.2, furnished by the other party in connection with this Agreement or the
transactions contemplated hereby, except for one (1) copy that may be retained by each
adviser to either party hereto for the files which they are required to keep in their
capacity as professional advisers and which shall be kept strictly confidential.
	 
	 	14.9	 	Execution
	 
	 	 	 	This Agreement may be executed in a number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
	 
	 	 	 	Delivery of an executed counterpart of a signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart of this
Agreement.





	15.	 	Governing Law and Dispute Settlement





	 	15.1	 	Governing Law
	 
	 	 	 	This Agreement shall be governed by, and construed in accordance with, the
substantive laws of Switzerland, with the exclusion of the Vienna Convention on the
International Sale of Goods, dated April 11,1980.
	 
	 	15.2	 	Dispute Settlement
	 
	 	 	 	Any dispute, controversy or claim arising out of, or in relation to, this Agreement,
including the validity, invalidity, breach or termination thereof, shall be resolved, to
the exclusion of the ordinary courts, by a three-person arbitral tribunal in accordance
with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in
force on the date on which Notice of Arbitration is submitted in accordance with such
rules, with Sellers on the one hand and Buyers on the other hand each appointing one
arbitrator and the two arbitrators thus appointed designating the third arbitrator who
shall be the chairperson of the arbitral tribunal. The appointing authority shall be the
Zurich Chamber of Commerce. The proceedings shall be conducted and any award shall be
rendered in English. The seat of arbitration shall be Basel, Switzerland.



98









 






	 	 	 	In witness whereof, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers in quadruplicate as of 16 July 2004 in Basel,
Switzerland.




	 	 	 	 	 
	Roche Holding AG:
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Roche Finanz AG:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Roche Pharmholding B.V.:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Roche Deutschland Holding GmbH:	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Hoffmann-La Roche France SAS:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 






99








 






	 	 	 	 	 
	Roche SAS:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Laboratoires Syntex SA:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	For and on behalf of the Asset Seller
Companies all as set forth in Schedule (A):	 	:
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann	 	 
	 

	 	 	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Bayer Healthcare AG:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/
Dr. Alexander Bey

	 	/s/ Peter Lauff	 	 
	 

	 	 	 	 
	Dr.
Alexander Bey

	 	Peter Lauff	 	 







100








 







	 	 	 	Amendment to the Share and Asset Purchase Agreement
	 
	 	 	 	dated as of December 28, 2004
	 
	 	 	 	Roche Holding AG, Grenzacherstrasse 124, 4058 Basel, Switzerland (hereinafter Roche Holding)
	 
	 	 	 	Roche Finanz AG, Grenzacherstrasse 122, 4070 Basel, Switzerland (hereinafter Roche Finanz)
	 
	 	 	 	Roche Pharmholding B.V., Beneluxlaan 2A, 3446 GR Woerden, The Netherlands (hereinafter Roche NL)
	 
	 	 	 	Roche Deutschland Holding GmbH, Emil-Barell-Strasse 1, 79639 Grenzach-Wyhlen, Germany
(hereinafter Roche Deutschland)
	 
	 	 	 	Hoffmann - La Roche France SAS, 52, Boulevard du Parc, 92521 Neuilly sur Seine CEDEX, France
(hereinafter HLRF), Roche SAS, 52 Bld du Parc, 92521 Neuilly sur Seine, CEDEX, France
(hereinafter RSAS), and Laboratoires Syntex SA, 52 Bld
du Parc, 92521 Neuilly sur Seine, CEDEX,
France (hereinafter Syntex, and together with HLRF and RSAS Roche France)
	 
	 	 	 	the companies listed in Schedule (A), each of which is directly or indirectly controlled
by Roche Holding (hereinafter each an Asset Seller Company and collectively the Asset Seller
Companies)
	 
	 	 	 	(each of the companies set forth above, including each of the Asset Seller Companies, hereinafter
a Seller and collectively the Sellers)
	 
	 	 	 	and
	 
	 	 	 	Bayer Healthcare AG, Bayerwerk, 51368 Leverkusen, Germany (hereinafter BHC)



1









 





	 	 	 	Table of Contents




	 	 	 	 	 	 	 	 	 
	 	1.	 	 	Definitions
	 	 	4	 
	 	2.	 	 	Amendments
	 	 	4	 
	 	2.1	 	 	Materiality
Condition / Agreement That Closing be Effected
	 	 	4	 
	 	2.2	 	 	Closing China / Closing Balance Sheet
	 	 	5	 
	 	2.3	 	 	Orion Companies
	 	 	6	 
	 	2.4	 	 	Asset Seller Companies
	 	 	7	 
	 	2.5	 	 	Local Buyer Entities
	 	 	7	 
	 	2.6	 	 	Amendment to Article 3.8
	 	 	9	 
	 	2.7	 	 	Amendment to Article 4.3.3(b)
	 	 	10	 
	 	2.8	 	 	Amendment to Article 8.1(c)
	 	 	11	 
	 	2.9	 	 	Amendment to Article 15.2
	 	 	12	 
	 	2.10	 	 	Amendment to Section 10 of Schedule 5.1 to the Share and Asset Purchase Agreement
	 	 	12	 
	 	2.11	 	 	Payment / Remittance Currencies
	 	 	12	 
	 	2.12	 	 	Andreu
Roche, S.A.
	 	 	13	 
	 	2.13	 	 	Stock Taking / Audit of Net Working Capital
	 	 	13	 
	 	2.14	 	 	Transportation of Inventory Prior to Closing
	 	 	14	 
	 	2.15	 	 	Pay-out of Payroll Items before Closing / Local Closing
	 	 	15	 
	 	2.16	 	 	Inter-company Loan by RDH to RCHD / Continued Liquidity for Operation
	 	 	15	 
	 	2.17	 	 	Fonds de Commerce / Export Rights Roche SAS
	 	 	16	 
	 	2.18	 	 	Continued Liquidity for Operation of RCH
	 	 	17	 
	 	2.19	 	 	EAN Bar Codes
	 	 	18	 
	 	2.20	 	 	Payment of Purchase Price
	 	 	18	 
	 	2.21	 	 	VAT Italy
	 	 	20	 
	 	2.22	 	 	Operational
Day / Readiness
	 	 	20	 
	 	2.23	 	 	Jurisdiction For Disputes Under the Local Supply / Toll Manufacturing Agreements
	 	 	20	 
	 	2.24	 	 	Cash Forwarding / Reimbursement
	 	 	21	 
	 	2.25	 	 	EU Commitments
	 	 	22	 
	 	2.26	 	 	Non-Termination of Certain Inter-Company Agreements
	 	 	22	 
	 	2.27	 	 	Pension
	 	 	22	 
	 	2.28	 	 	Dutch Indemnity
	 	 	23	 
	 	2.29	 	 	Place of Arbitration
	 	 	25	 
	 	3.	 	 	General Provisions
	 	 	25	 
	 	3.1	 	 	Effect of Amendment
	 	 	25	 
	 	3.2	 	 	Severability
	 	 	25	 
	 	3.3	 	 	Execution
	 	 	25	 






2









 





	 	 	 	 	 	 	 	 	 
	 	3.4	 	 	Applicable Law
	 	 	26	 
	 	3.5	 	 	Dispute Settlement
	 	 	26	 






3









 






	 	 	Whereas





	 	A.	 	The parties to this amendment (the Amendment) are parties to that certain
Share and Asset Purchase Agreement, dated 16 July 2004 (the Share and
Asset Purchase Agreement).
	 
	 	B.	 	The parties now desire to amend and / or complement the Share and Asset
Purchase Agreement.





	 	 	Now, therefore, the parties hereto agree as follows:
	 
	1.	 	Definitions
	 
	 	 	Capitalized terms not defined herein shall have the meaning assigned to such terms in the
Share and Asset Purchase Agreement.
	 
	2.	 	Amendments





	 	2.1	 	Materiality Condition / Agreement That Closing be Effected





	 	(a)	 	The parties agree that the Materiality Condition as set forth in Article 4.2.1(c)
in conjunction with Article 4.2.6(a) and (b) of the Share and Asset Purchase Agreement
has been satisfied and Closing shall be effected as of 31 December 2004, 24:00/1 January
2005, 00:00 (such date and time to be determined with respect to all of the Transferred
Orion Assets, the Assumed Orion Liabilities and the Transferred Employees on the basis
of the relevant applicable time zone and hereinafter referred to as the Effective Date)
with respect to all countries comprising Orion Business other than the following, for
which the Closing shall be deferred and a Local Closing shall occur in accordance with,
and pursuant to, Article 4.2.6(b) to (e) of the Share and Asset Purchase Agreement:





	 	(i)	 	Russia;
	 
	 	(ii)	 	Pakistan;
	 
	 	(iii)	 	PRISA, comprising the following countries: Dominica, Dutch Antilles,
Puerto Rico, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Guatemala,
Panama, Costa Rica, El Salvador, Honduras, Dominican Republic, Trinidad & Tobago,
Jamaica, Cuba, Bahamas, Curacao, Nicaragua, Aruba, Barbados, Bermuda (local market
business only),



4








 





	 	 	 	Haiti, St. Maarten, Cayman Islands, Antigua/Barbuda, St. Lucia, Belize, Grenada,
Suriname, Guyana, St. Christopher and Nevis;
	 
	 	(iv)	 	China, in relation to the Transferred Orion Assets and the Assumed Orion
Liabilities comprised in the Net Working Capital and Net Debt only, as further
specified in section 2.2 below; and
	 
	 	(v)	 	Italy, for which the Local Closing shall occur as at 1 January 2005,
00:00 C.E.T., but which will otherwise be treated as if it had closed at the
Effective Date.





	2.2  	Closing China / Closing Balance Sheet





	 	(a)	 	The parties agree that the Closing in relation to the Transferred Orion
Assets and the Assumed Orion Liabilities comprised in the Net Working
Capital in the People’s Republic of China (excluding Hong Kong, Macau
and Taiwan) (PRC) shall be deferred and such assets and liabilities be
transferred to Buyer or its designated Local Buyer Entity at a Local Closing
(all as further specified in the Asset Sale and Transfer Agreement entered
into between Shanghai Roche Pharmaceuticals Limited and Bayer
Healthcare Company Limited).
	 
	 	(b)	 	The parties further agree that for purposes of Article 2.7.1(a) of the Share
and Asset Purchase Agreement and determining the last Local Closing
forty (40) Business Days after which Sellers need to deliver the Closing
Balance Sheet to Buyer, the Local Closing with respect to the Transferred
Orion Assets and the Assumed Orion Liabilities being part of the Net
Working Capital in the PRC shall be disregarded. The Estimated Purchase
Price Component with respect to the PRC shall be adjusted independently
at the respective Local Closing, whereby the provisions set forth in
Article 2.7 of the Share and Asset Purchase Agreement shall apply
accordingly. If at the Local Closing in the PRC the Net Working Capital
adjustment in relation to the entire Orion Business has exceeded or is
exceeding, as a result of the Local Closing in the PRC, the ten (10)
percentage point limitation set forth in Article 2.7.2(a)(i) of the Share and
Asset Purchase Agreement, the parties hereto agree that (i) the Local
Buyer Entity in the PRC shall pay the purchase price for the Net Working
Capital in the PRC to the respective Asset Seller(s) in the PRC and (ii) a
compensation payment equal to the amount in excess of such ten (10)
percentage points limitation shall be made by FHRL or one of its Affiliates to BHC or its
designated Affiliate.



5









 





	 	(c)	 	The part “Subject to Seller’s responsibility and liability as manufacturer of the
products” in section 2.5.3 of the Sale and Transfer Agreement for the Orion Business in
relation to the PRC between Shanghai Roche Pharmaceuticals Limited, Shanghai, PRC, and
Bayer Healthcare Company Limited, Beijing, PRC, shall mean a reference to the rules and
principles of the responsibility and liability of the supplier under the terms of the
Frame Supply Agreement relating to the supply of certain products by FHLR to the Orion
Business and as amended from time to time, as if the respective product had been
supplied by Shanghai Roche Pharmaceuticals Limited to Bayer Healthcare Company Limited
under the terms of the Frame Supply Agreement.





	2.3  	Orion Companies





	 	(a)	 	Article 2.1 (a) of the Share and Asset Purchase Agreement shall be hereby
amended by deleting subsection (i) thereof and substituting in its place and
stead the following:




“Consumer Health Care Nederland B.V., Woerden, The Netherlands (hereinafter CHCN),
together with the shares of Roche Consumer Health AG (hereinafter
RCH);”
	 
	 	(b)	 	CHCN shall be considered an Orion Company, and the shares in CHCN
shall be considered Orion Shares; provided, however, that the
representations and/or warranties given by Sellers in Schedule 5 to the
Share and Asset Purchase Agreement in relation to an Orion Company
and/or the Orion Shares shall not apply to CHCN with the exception of
sections 4 and 5 of such Schedule 5. Sellers have not created any Liens
relating to the Orion Shares in CHCN.
	 
	 	(c)	 	The Estimated Net Working Capital, the Estimated Net Debt and the
Estimated Provision and Liability Amount of CHCN shall be calculated as if
(i) the Orion Business being transferred from Roche Nederland B.V. by way
of (y) a statutory demerger or (z) an asset sale to CHCN had been
transferred by way of a Sale and Transfer Agreement from Roche
Nederland B.V. to Buyer or a Local Buyer Entity pursuant to
Article 4.3.3(b) of the Share and Asset Purchase Agreement and
(ii) RCH had been transferred to Buyer or a Local Buyer Entity by way of delivering the
respective Orion Shares pursuant to Article 4.3.1(a) and/or entering into a
Sale and Transfer Agreement pursuant to Article 4.3.3(a) of the Share and
Asset Purchase Agreement. The parties further agree that for purposes of



6









 





	 	 	 	the Final Closing Balance Sheet the Net Working Capital, the Net Debt, the Provision and
Liability Amount and the Inter-Company Obligations shall be established based on the
actual transfer of the Orion Business comprised in CHCN by way of a transfer of the
respective Orion Shares in CHCN as contemplated in
Articles 4.3.1(a) and/or 4.3.3(a) of the Share and Asset Purchase Agreement and the Estimated Purchase
Price Components shall be adjusted pursuant to Article 2.7 of
the Share and Asset Purchase Agreement based on these premises.





	2.4  	Asset Seller Companies





	 	(a)	 	Schedule (A) to the Share and Asset Purchase Agreement shall hereby be
amended by adding each of the companies listed below:





	 	(i)	 	Syntex S.A. de C.V. (Mexico), Apartado Postal 517 Col. Centro; 62000
Cuernavaca, Morelos, Mexico;
	 
	 	(ii)	 	Hoffmann-La Roche AG, Grenzacherstrasse 124, 4058 Basel,
Switzerland; and
	 
	 	(iii)	 	Grupo Roche Syntex de México, S.A. de C.V., Cerrade de Bezares n°9,
Col, Lomas de Bezares, 11910 México D.F.





	 	(b)	 	Schedule (A) to the Share and Asset Purchase Agreement shall hereby be
further amended by deleting the following Asset Seller Company: “Roche
Nederland B.V., Beneluxlaan 2a, 3446 GR Woerden, The Netherlands.”
	 
	 	(c)	 	As a result of there being changes to the companies listed as Asset Seller
Companies, the parties have amended Schedule 2.8(a) and Schedule 3.4
in the form attached hereto.





	2.5  	Local Buyer Entities





	 	(a)	 	Schedules 2.8(a) and 3.4, each as amended, and the Payment Schedule
(entitled “Selling and Buying Entities”, version 23 Dec 2004), all as attached hereto as
Appendix 2.5, (i) set forth the Asset Seller Companies selling and transferring,
and the entities designated by Buyer (the Local Buyer Entities) purchasing and accepting
the sale and transfer of, the Orion Assets under the Sale and Transfer Agreements and
(ii) identify the allocated Purchase Price to be paid by (y) BHC and (z), for those cases



7









 





	 	 	 	where applicable laws and regulations require local payments, the respective Local Buyer
Entity.
	 
	 	(b)	 	The parties have agreed not to have the Local Buyer Entities formally
accede to the Share and Asset Purchase Agreement in the capacity of a
buyer, as contemplated on page two (2) of the Share and Asset Purchase
Agreement. Therefore, the parties hereby agree that page two (2) and
Article 10.19(b) of the Share and Asset Purchase Agreement shall be
deleted and in its place and stead be substituted as follows:
	 
	 	 	 	“BHC shall be considered the sole Buyer hereunder and any reference to “Buyer” or “Buyers”
shall be interpreted accordingly; provided, however, that the rights and obligations BHC has
in respect of the Orion Assets being transferred to the Local Buyer Entities by way of the
Sale and Transfer Agreements shall be deemed conferred on the Local Buyer Entities purchasing
and accepting the Orion Assets as if they were a party to this Agreement, it being understood,
however, that none of the Local Buyer Entities shall have any direct right to enforce any term
of this Agreement but shall enforce their rights under this Agreement exclusively through BHC
(“unechter Vertrag zugunsten/zu Lasten Dritter”), if necessary by means of authorization to
assert rights and/or assignment of claims to BHC. BHC assumes direct and unconditional
liability for all obligations attributed to a “Buyer” or “Buyers” under this Agreement and to
a Local Buyer Entity under a Sale and Transfer Agreement and/or a Transitional Agreement.
Roche Holding assumes direct and unconditional liability for all obligations attributed to any
of its Affiliates under a Sale and Transfer Agreement and/or a Transitional Agreement.
	 
	 	 	 	In addition, BHC hereby agrees to cause any of the Local Buyer Entities to do all acts and
things necessary to effect and implement, and to prevent any actions contrary to, the
covenants and other obligations under this Agreement as if each such Local Buyer Entity were a
direct party to this Agreement. Without limiting the obligations of Buyer under this
agreement, the performance of Buyer’s obligations hereunder by any of the Local Buyer Entities
shall be accepted by each of the Sellers as performance of the Buyer and be treated as if
Buyer had performed such obligation.”
	 
	 	(c)	 	For the avoidance of doubt, the parties agree that (i) payment by Buyer on
behalf of a Local Buyer Entity shall effect performance of such Local Buyer
Entity’s obligation vis-à-vis the Seller under the respective Sale and
Transfer Agreement and (ii) performance by a Seller of its obligations under



8









 





	 	 	 	a Sale and Transfer Agreement vis-à-vis the respective Local Buyer Entity shall effect
performance of such Seller’s obligations vis-à-vis BHC under the Share and Asset
Purchase Agreement.
	 
	 	(d)	 	For the avoidance of doubt, it shall be understood that Sellers and BHC shall each
be entitled to demand specific performance of one another with respect to their
respective obligations under Article 10.19 of the Share and Asset Purchase Agreement, as
amended.





	 	2.6	 	Amendment to Article 3.8
	 
	 	 	 	The parties agree to amend Article 3.8 of the Share and Asset Purchase Agreement by inserting
the following new Article 3.8(e):
	 
	 	 	 	“(e) If, and to the extent, Transferred Orion Contracts or part thereof that provide for
supplies to Sellers by third parties necessary for Sellers to satisfy their obligations under
the terms of the Frame Supply Agreement and/or the Frame Toll Manufacturing Agreement (such
Transferred Orion Contracts hereinafter the Orion Related Supply Contracts) have been assigned
and transferred, or novated over, to a Local Buyer Entity, or are contracts of a third party
supplier with an Orion Company, the parties hereto shall co-operate and use Reasonable Best
Efforts to (i) provide to each respective Local Buyer Entity concerned the benefits under the
Frame Supply Agreement and/or the Frame Toll Manufacturing Agreement at terms and conditions
that are economically equivalent to those had the Orion Related Supply Contracts not been
assigned and transferred, or novated over, to the respective Local Buyer Entity concerned or
had the Orion Related Supply Contracts not been contracts of an Orion Company and (ii)
coordinate the ordering and other administrative procedure under the Orion Related Supply
Contracts. In either of the instances set forth under (i) and (ii) above, the parties shall
duly consider whether the manufacturing know how with respect to the non-finished goods
supplied under the Orion Related Supply Contracts is with the Sellers or the Local Buyer
Entity. Until Sellers and Buyer or their respective Affiliates agree on the ordering or other
administrative procedure under the respective Orion Related Supply Contract it is understood
that Buyer may request that all ordering and administrative procedures be performed by the
Sellers or one of their Affiliates in accordance with the terms of the respective Frame Supply
Agreement or Frame Toll Manufacturing Agreement. If the respective supplier under an Orion
Related Supply Contract supplies finished goods and Sellers or one of their Affiliates under
the Frame Supply Agreement or the Frame Toll Manufacturing Agreement only provide
administrative services, Buyer shall have the right to terminate, with



9









 





	 	 	 	respect to such finished goods, the applicable Frame Supply Agreement or the Frame Toll
Manufacturing Agreement, including the respective local agreement at any time. Such
termination shall become effective at the later of (i) the expiry of a 30 (thirty) day period
following Buyer’s or its Affiliates’ written termination notice and (ii) the moment at which
the relevant Orion Related Supply Contract between Sellers or one of their Affiliates and the
respective third party with respect to the goods concerned is effectively terminated or
assigned and transferred or novated over to a Local Buyer Entity. Upon receipt of Buyer’s
termination notice and if requested by Buyer or its Affiliate, Sellers and their respective
Affiliates shall use Reasonable Best Efforts to terminate the Orion Related Supply Contract
with the third party, in accordance with its terms and conditions, without undue delay.
Furthermore, it is understood between the parties that Buyer and its Affiliates shall not be
under any obligation vis-a-vis the respective third party to buy and pay for products which
fall under Orion Related Supply Contracts, nor shall Buyer and its Affiliates be required to
pay Volume Adjustment Payments (as defined in the applicable Frame Supply Agreement or the
Frame Toll Manufacturing Agreement) relating to time periods after the effectiveness of
Buyer’s termination of the applicable Frame Supply Agreement or Frame Toll Manufacturing
Agreement with respect to the goods concerned. If, and to the extent, Orion Related Supply
Contracts have as of the Closing not been assigned and transferred, or novated over, to the
respective Local Buyer Entity, such assignment, transfer or novation shall only be effected
with the consent of Buyer or its respective Affiliate.
	 
	 	 	 	With respect to finished goods, if any, listed on the product list attached to the Frame
Supply Agreement and the respective local supply agreements for the supply of finished goods
from Sellers and their Affiliates to Buyer and its Affiliates, which are manufactured as at
the Closing on one of the Transferred Orion Manufacturing Sites and with respect to which
Sellers or their Affiliates provide services only (or nothing at all), the parties agree that
the terms of the Frame Supply Agreement and
the respective local supply agreement shall not apply with respect to such finished goods.”
	 
	 	2.7	 	Amendment to Article 4.3.3(b)





	 	(a)	 	The parties have agreed to implement the sale and transfer of the Orion Assets by
having local sale and transfer agreements executed between the relevant Seller and the
relevant Local Buyer Entity instead of having mere transfer instruments executed as
contemplated in Article 4.3.3(b) of the Share and Asset Purchase Agreement; accordingly,
the parties agree that the reference in that Article to transfer documents, and the
corresponding



10









 





	 	 	 	definition, shall be modified and replaced by the terms “sale and transfer agreements”
and “Sale and Transfer Agreements”, respectively.
	 
	 	(b)	 	The parties further agree to amend Article 4.3.3(b) of the Share and Asset
Purchase Agreement by deleting the second proviso in that Article, including the last
sentence of that Article, and in its place and stead substituting the following:
	 
	 	 	 	“and provided, further, that it shall be understood and agreed that the terms and
conditions of the Sale and Transfer Agreements into which the parties hereto, or the
Asset Seller Companies and Local Buyer Entities, will enter in order to effect the sale
and / or transfer of the Orion Assets on a local level, shall be supplemented by the terms
and conditions of this Agreement and, to the extent any conflict or inconsistency
between the terms of this Agreement and those of a Sale and Transfer Agreement,
including, but not limited to, the respective terms on the applicable law and the
competent forum for dispute settlement, shall arise, the terms of this Agreement shall
prevail, except as identified in Schedule 4.3.3(b). Nothing in this proviso
shall be interpreted as impairing those parts of the Sale and Transfer Agreements that
effect the transfer of the relevant Orion Assets and the Transferred Employees in
accordance with the requirements of applicable local laws. Subject to the foregoing, it
shall be understood and agreed that with respect to Sale and Transfer Agreements that
are executed in more than one language, the Sale and Transfer Agreement in the English
language shall be valid and binding between the parties and to the extent any conflict
or inconsistency exists between the various versions, the English version shall prevail.





	2.8	 	Amendment to Article 8.1 (c)
	 
	 	 	To reflect those cases in which the Local Buyer Entity will, for a transitional period after
Closing, operate the respective Orion Business under a licensing or similar arrangement
entered into with the respective Seller, the parties hereby agree that Article 8.1 (c), second
sentence, of the Share and Asset Purchase Agreement shall hereby be amended by inserting,
immediately after “in accordance and compliance with the terms of the transitional services
agreements,” the following: “and/or the interim licensing or similar arrangements.”



11









 





	 	2.9  	 	Amendment to Article 15.2





	 	(a)	 	The parties have agreed to extend the scope of the arbitration agreement
contained in the Share and Asset Purchase Agreement to any dispute,
controversy or claim arising out of, or in relation to, a Sale and Transfer
Agreement into which they themselves or any of their respective Affiliates
or, in case of Buyer, the Local Buyer Entities, have entered in
implementation of Article 4.3.3(b) of the Share and Asset Purchase Agreement. Accordingly, Article 15.2, first sentence, of the Share and
Asset Purchase Agreement shall be amended to replace the reference
therein to “this Agreement” with “this Agreement or any of the Sale and
Transfer Agreements entered into by the parties hereto or any of their
respective Affiliates or, in case of Buyer, the Local Buyer Entities.”
	 
	 	(b)	 	In addition, Article 15.2 of the Share and Asset Purchase Agreement shall
be amended by adding the following at the end thereto:
	 
	 	 	 	“Each party hereto hereby commits to causing, and providing for specific performance
of, each of its Affiliates (including each Local Buyer Entity in case of Buyer) being a
party to a Sale and Transfer Agreement to have any of the disputes, controversies or
claims arising out of, or in relation to, a Sale and Transfer Agreement, resolved by
arbitration in accordance with, and pursuant to, the proceedings provided for in this
Agreement as if each such Affiliate (including each Local Buyer Entity in case of
Buyer) were itself a party to this Agreement.”





	 	2.10	 	Amendment to Section 10 of Schedule 5.1 to the Share and Asset Purchase Agreement
	 
	 	 	 	The parties hereby agree to amend the exception to the amount of product-related Inventory
acceptable under the last sentence of section 10 of Schedule 5.1 to the Share and Asset
Purchase Agreement by including as an additional exception the cases in connection with new
product rollouts set forth in Appendix 2.10 attached hereto.
	 
	 	2.11	 	Payment / Remittance Currencies
	 
	 	 	 	The parties have agreed that it is desirable to have the Purchase Price and the Purchase
Price Adjustment remitted by BHC or its designee acting as paying agent on behalf of any
Local Buyer Entity under a Sale and Transfer Agreement to FHLR acting as receiving agent on
behalf of any of its Affiliates acting as seller



12









 





	 	 	 	under a Sale and Transfer Agreement. The parties agree to the revised version of Schedule 3.4 to the Share and Asset Purchase Agreement. Schedule 3.4 to the Share and
Asset Purchase Agreement, as amended, shall be attached to the closing memorandum
contemplated in Article 3.6 of the Share and Asset Purchase Agreement.
	 
	 	2.12	 	Andreu Roche, S.A.
	 
	 	 	 	BHC hereby acknowledges and consents that Andreu Roche, S.A.,
Madrid, Spain (ARSA), may
continue to use the “Andreu” component in its corporate name after the consummation of the
transactions contemplated by the Share and Asset Purchase Agreement for five (5) years after
the Closing, provided that ARSA does not engage in any business going beyond its current
scope of activity and provided that in no case such activity may be a Protected Activity.
After the expiry of the five (5) year period referred to above, BHC may demand from Sellers
that ARSA discontinue its use of the “Andreu” component in its corporate name. Sellers hereby
affirm that a Local Buyer Entity, upon consummation of the transactions contemplated in the
Share and Asset Purchase Agreement, will become the full owner of the Spanish trademarks
“Andreu”, registered in the Spanish trademark register under the numbers 2197560 and 2482976.
	 
	 	2.13	 	Stock Taking / Audit of Net Working Capital





	 	  (a)	 	The parties have agreed that representatives of BHC, including its auditors, may
participate in the physical stocktaking contemplated by section 4 of Schedule 2.7.1(a)(2) to, and carried out under the responsibility of Sellers as part of the audit
procedure contemplated under Article 2.7.1(a) of, the Share and Asset Purchase
Agreement. BHC acknowledges and accepts that the physical stocktaking will be subject to
the audit scope by PwC covering eighty (80) percent of the Estimated Net Working Capital
(including Inventory), it being understood that if at a Local Closing less than ten (10) percent of the Estimated Net Working Capital (including Inventory) remains outstanding,
PwC will not carry out any further audit, including a physical stocktaking of the
Inventory, unless the Local Closing includes an Asset Seller Company or an Orion Company
located in one of the Core Countries, in which event the general audit scope covering
eighty (80) percent of the Estimated Net Working Capital (including Inventory) shall
continue to apply.



13









 





	 	  (b)	 	The parties further agree that, as part of the physical stocktaking and the
related audit procedure described in section (a) above, the product-related
Inventory that has a shelf-life below the standards required by section 10 of
Schedule 5.1 to the Share and Asset Purchase Agreement but at the same
time satisfies the standards required by the Preparation Guide and thus
would not need to be written down in value to zero (0) (the Identified
Inventory), shall be identified, shall, for purposes of calculating the Net
Working Capital, as referenced in Schedule 2.7.1(a)(1), be written down in
value to zero (0) and shall be legally transferred to BHC or an entity
designated by BHC at the Closing, or as the case may be, the Local
Closing. In consideration for the transfer of the Identified Inventory and the
continuing value of the Identified Inventory, including its M&D value
(promotion, product samples, etc.), BHC hereby (i) agrees to cause the
payment of an euro amount representing fifty (50) percent of the
consolidated value (as determined pursuant to the Preparation Guide) of
the Identified Inventory written down to zero (0) pursuant to the preceding
sentence and (ii) acknowledges that the transfer of the Identified Inventory
does not constitute a breach of the representation set forth in section 10 of
Schedule 5.1 to the Share and Asset Purchase Agreement. The payment
contemplated in this section 2.13(b) shall constitute an adjustment to the
Purchase Price, shall be aggregated with the adjustments under
Articles 2.7.2 and 2.7.3 of the Share and Asset Purchase Agreement and
be paid in accordance with Article 2.7.4 of the Share and Asset Purchase
Agreement as part of the Purchase Price Adjustment by FHLR (acting as
paying agent on behalf of the Sellers) to BHC, or by BHC to FHLR (acting
as receiving agent on behalf of the Sellers), as the case may be.
	 
	 	  (c)	 	The destruction and disposal costs for the Identified Inventory which,
BHC’s or the relevant Local Buyer Entity’s Reasonable Best Efforts
notwithstanding, can no longer be marketed in any form shall be equally
shared between the parties.





	2.14	 	Transportation of Inventory Prior to Closing
	 
	 	 	The parties agree that following completion of the physical stocktaking referred to in section
2.13 above
the Local Buyer Entities in certain countries may request from the respective Seller that the
relevant Inventory to be transferred under the respective Sale and Transfer Agreement be
transported to a location designated by the Local Buyer Entity. In case of such
transportation, it shall be agreed that (a) legal title to the Inventory shall remain with the
respective Seller until the Effective Date (as defined in the relevant Sale and Transfer
Agreement); it being



14









 





	 	 	understood that BHC shall be responsible for taking out insurance for such Inventory and do
everything necessary to put the respective Seller in a position to effectively claim or
receive insurance moneys in relation to the Inventory; (b) the Inventory shall only be used
for purposes of preparing the operation of the Orion Business after the Closing; (c) Buyer
shall grant to the respective Seller access to the Inventory during ordinary business hours
to the extent required for the respective Seller to be able to fulfil purchase orders due
prior to Closing; and (d) if Closing should not occur or become effective, the Local Buyer
Entity shall immediately retransfer the Inventory to the relevant Seller.
	 
	2.15	 	Pay-out of Payroll Items before
Closing / Local Closing





	 	  (a)	 	The parties have agreed that the payroll-related items which are part of the
Net Working Capital and which are set forth in detail in Appendix 2.15
(such items hereinafter the Payroll Items), shall be paid out by Sellers to
the Transferred Employees prior to Closing, or as the case may be, the
Local Closing. BHC hereby acknowledges that as a result of paying out
the Payroll Items before Closing, or as the case may be, the Local Closing,
a change in past business practice will occur, which will impact the
underlying calculation of the Net Working Capital Level and therefore
agrees that any increase in the (Estimated) Net Working Capital resulting
from paying out the Payroll Items shall be disregarded for purposes of
establishing whether the ten (10) percent limitation specified in
Articles 2.6(a)(ii) and 2.7.2(a) of the Share and Asset Purchase Agreement
has been reached and exceeded.
	 
	 	  (b)	 	In order to enable RCH to pay out the Payroll Items to the Transferred
Employees employed by it, BHC or its designated Affiliate shall grant to
RCH a short-term loan (hereinafter the Loan I), the principal amount, the
applicable interest rate and the other terms and conditions of which have
been agreed separately between RCH and BHC or its designated Affiliate
prior to Closing.
	 
	 	 	 	For the avoidance of doubt, Loan I shall constitute part of the (Estimated) Net Debt and
be accounted for as a third party loan.





	2.16	 	Inter-company Loan by RDH to RCHD / Continued Liquidity for Operation
	 
	 	 	The parties agree that the loan granted by RDH to RCHD, as at December 31, 2004, in the
aggregate amount of € 37.3 million, including accrued interest (the RCH Loan), shall be
settled as follows:



15









 










	 	(a)	 	by offsetting (i) any surplus in favour of RCHD from the cash pool
administered by RDH and terminated as at the Closing and (ii) any proceeds estimated
to be received by RCHD from RDH prior to Closing out of the control and profit
transfer agreement (Gewinnabführungsvertrag) with RDH; and
	 
	 	(b)	 	by way of repayment in cash of immediately available funds by RCHD to RDH,
whereby it has been agreed that BHC or its designated Affiliate shall, in order for
RCHD to be in a position to make such repayment prior to the Closing, grant to RCHD a
short-term loan (hereinafter the Loan II), the principal amount, the applicable
interest rate and the other terms and conditions of which shall be agreed separately
between RCHD and BHC or its designated Affiliate prior to Closing.
	 
	 	For the avoidance of doubt, Loan II shall constitute part of the (Estimated) Net Debt and be
accounted for as a third party loan.





	 
	2.17  	Fonds de Commerce / Export Rights Roche SAS





	 	(a)	 	Buyer hereby consents to the termination of the “contrat de location de
gérance” between Roche SAS and LRN, dated June 6, 2000, as amended.
	 
	 	(b)	 	Buyer hereby further consents to (i) the sale and transfer of the rights
owned by Roche SAS in relation to OTC products marketed in France, the
French territories, Monaco and Andorra (the Fonds de Commerce), all as
further specified in Article 1 of the agreement entered into on December
13, 2004, between Roche SAS and RCH, attached hereto as
Schedule 2.17(b)(1), (ii) the termination of (y) the contrat de distribution
and promotion commerciale export between Roche SAS and LRN, dated
December 11, 1992, as amended, under which Roche SAS acted as
distributor of LRN for the export of certain OTC products of the Orion
Business to Algeria, Libya and certain other African countries, as well as
(z) the unwritten agreement under which Roche SAS acted as distributor of
RCH for the export of certain OTC products of the Orion Business to
certain Middle Eastern countries (collectively the Export Rights), all as
further specified in the respective termination letters dated November 16,
2004, and December 17, 2004, attached hereto as Schedule 2.17(b)(2),
and (iii) the sale and transfer of the Transferred Orion Assets owned by
CENEXI SAS, 52, rue M. et J. Gaucher, 94122 Fontenay s/Bois, France, to
RCH (the CENEXI Transfer) to be entered into prior to the Closing.




16









 





	 	(c)	 	In order to enable RCH to pay the consideration for the acquisition of the
Fonds de Commerce, the termination of the Export Rights of Roche SAS
and the purchase price for the CENEXI Transfer, BHC or its designated
Affiliate shall grant to RCH a short-term loan (hereinafter the Loan III), the
principal amount, the applicable interest rate and the other terms and
conditions of which shall be agreed separately between RCH and BHC or
its designated Affiliate prior to Closing.
	 
	 	 	 	For the avoidance of doubt, Loan III shall constitute part of the (Estimated) Net Debt
and be accounted for as a third party loan.
	 
	 	(d)	 	The parties agree that any transfer Taxes and fees, stamp duties, notaries’
or governmental charges (other than any of the fees referred to in
Article 10.6 of the Share and Asset Purchase Agreement) resulting from, or
relating to, the transfer of the Fonds de Commerce to, and the termination
of the Export Rights of Roche SAS by, RCH and LRN, respectively, shall
be shared equally in between Sellers on the one hand and Buyer on the
other hand.
	 
	 	(e)	 	The parties agree that the Fixed Purchase Price allocated to RCH and LRN
shall be increased by the respective (cumulative) consideration paid by
RCH and LRN, respectively, to Roche SAS for the sale and transfer of the
Fonds de Commerce and the termination of the Export Rights, and the
Fixed Purchase Price allocated to Roche SAS shall be decreased
accordingly.
	 
	 	(f)	 	In case of any dispute with the tax authorities due to the sale and transfer
of the Fonds de Commerce to, and the termination of the Export Rights of
Roche SAS by, RCH and LRN, respectively, Sellers and Buyer will use
Reasonable Best Efforts to support each other in, respectively, avoiding
and contesting a tax reassessment which results in a loss, expense or
costs for the Sellers. The parties agree that any loss, expense or cost
resulting from the reassessment by the tax authorities of Taxes arising
from, or relating to, the sale and transfer of the Fonds de Commerce to,
and the termination of the Export Rights of Roche SAS by, RCH and LRN,
respectively, shall be shared equally between the parties.





	 	2.18	 	Continued Liquidity for Operation of RCH





	 	(a)	 	In order to finance on-going liquidity requirements of RCH, BHC or its
designated Affiliate shall grant to RCH a short-term loan (hereinafter the



17









 





	 	 	 	Loan IV), the principal amount, the applicable interest rate and the other terms and
conditions of which shall be agreed separately between RCH and BHC or its designated
Affiliate.
	 
	 	 (b)	 	For the avoidance of doubt, Loan IV shall constitute part of the (Estimated)
Net Debt and be accounted for as a third party loan.





	 	2.19	 	EAN Bar Codes
	 
	 	 	 	The parties agree that Buyer and the Local Buyer Entities shall be entitled to have the Orion
Business continue to use the European Article Bar Codes (the EAN Bar Codes) as such codes
were used for product identification by the Orion Business prior to the Closing for a
duration of six (6) years after the Closing. Sellers hereby commit not to continuing using
such codes for such 6 year time period, it being understood, however, that such commitment
shall cease to be effective with respect to any EAN Bar Code which the Buyer or a Local Buyer
Entity does no longer continue to use with respect to the Orion Business.
	 
	 	2.20	 	Payment of Purchase Price
	 
	 	 	 	With respect to the payment of the Purchase Price at the Closing, the parties agree as
follows:





	 	(a)	 	In cases in which a Local Buyer Entity will pay the applicable portion of the
Purchase Price before the Closing, such payment shall be treated as a
pre-payment until the Closing. If the Closing will not occur with effect as at the
Effective Date, Seller shall be obliged to re-pay the amounts received until
10 January 2005, unless the parties shall agree otherwise.
	 
	 	(b)	 	The payment of the Purchase Price to be paid by Buyer (acting as paying
agent for the Local Buyer Entities) to FHLR (acting as receiving agent for
the other Sellers) pursuant to Article 4.3.2(a) of the Share and Asset
Purchase Agreement shall be effected by way of an escrow agreement (the
Escrow Agreement) agreed among BHC, FHLR and Deutsche Bank S.A.,
Luxemburg (the Escrow Agent), attached hereto as Schedule 2.20(b)(1).
As of the date and time the condition precedent set forth in clause 3.2 of
the Escrow Agreement has been satisfied, Buyer hereby commits not to
instruct the Escrow Agent to withdraw the Escrow Monies (as defined in the
Escrow Agreement) from the Escrow Account (as defined in the Escrow
Agreement) or to do, or to instruct the Escrow Agent to do, anything which
may prevent or delay FHLR from becoming the sole and unconditional



18









 





	 	 	 	beneficial owner of the Escrow Monies as at the Effective Date; provided, however, that if
between the date and time of the satisfaction of the condition precedent set forth in clause
3.2 of the Escrow Agreement and the bring-down in accordance with the forms attached hereto
as Appendix 2.20(b)(2) (the Closing Certificates) on December 31, 2004, 14:00 C.E.T.,
events should occur or become known and be notified to Sellers by Buyer or to Buyer by
Sellers, which (contrary to the expectations of the parties at the time of performance of the
closing actions pursuant to Article 4.3 of the Share and Asset Purchase Agreement) cause the
condition precedent set forth in Article 4.2.1 (b) and (d) of the Share and Asset Purchase
Agreement not to be satisfied, (i) Buyer shall remain entitled to the Escrow Monies (as
defined in the Escrow Agreement), (ii) Seller shall make all
declarations necessary vis-à-vis
the Escrow Agent to have the Escrow Monies released to the Buyer, (iii) Buyer and Seller
agree that none of the Sale and Transfer Agreements and/or the implementing transitional
agreements relating thereto shall become effective, and (iv) Buyer shall cause each Local
Buyer Entity to do, or have done, all acts and things necessary to prevent the transfer of
title to the Orion Assets from becoming effective and/or retransfer to the Local Buyer Entity
any of the Orion Assets title to which has already been transferred.
	 
	 	(c)	 	The parties agree that the Fixed Purchase Price Component shall be increased by up to € 2
million on account of Buyer participating in any payments to be made to those agents of Roche
S.p.A., Italy, which shall not be transferring to the Local Buyer Entities in Italy but shall
be terminated before, on or after the Effective Date (such payments the Termination Payments).
The parties further agree that the amount of the € 2 million as referred to above will be paid
by BHC, acting as paying agent for the Local Buyer Entities in Italy, to FHLR, acting as
receiving agent for its Affiliate in Italy, as part of the Purchase Price to be paid at
Closing and, to the extent the actual Termination Payments are less than € 2 million, Sellers
shall reimburse Buyer for such shortfall at the same time that the Purchase Price Adjustment
is being paid. For the avoidance of doubt, the € 2 million payment and the potential partial
reimbursement thereof as set forth in this section 2.20(c) do neither constitute part of the
Closing Balance Sheet nor the Purchase Price Adjustment and any of the procedures related
thereto.



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	 	2.21	 	VAT Italy





	 	(a)	 	The parties hereto agree that BHC shall be responsible for, pay, and
indemnify Roche S.p.A. for, and hold it harmless against, any amount of
VAT, including, but not limited to, any interest, penalties, costs, and
expenses resulting therefrom, or arising out thereof, or relating thereto
(together the VAT Amount), determined by the competent Italian VAT
authorities to be chargeable on the transfer of any of the Transferred Orion
Assets or part thereof under the Sale and Transfer Agreements entered
into between Roche S.p.A. and the Local Buyer Entities for the Orion
Business in Italy. BHC shall pay to Roche S.p.A any VAT Amount no later
than 3 (three) Business Days before Roche S.p.A. has to pay the
respective VAT amount to the competent VAT authority.
	 
	 	(b)	 	BHC hereby further agrees to indemnify Roche S.p.A. for, and hold it
harmless against, any claim, penalty, fine, cost, expense, claim for
reimbursement of registration tax, or other loss incurred or sustained as a
result of any of the Sale and Transfer Agreements entered into between
Roche S.p.A. and the Local Buyer Entities for the Orion Business in Italy
not qualifying as a “going concern” under Italian law as interpreted by the
competent Italian tax authorities.





	 	2.22	 	Operational Day 1 Readiness
	 
	 	 	 	Sellers shall provide to Buyer, on a company by company basis and for informational purposes
only, to the extent and in the format as is easily available from local IT/accounting
systems, the identities of the debtor and creditor, the amount and currency outstanding, and
the maturity/payment term of the accounts receivable and accounts payable with third parties
being transferred to Buyer as part of the Orion Assets. Sellers shall deliver such data
centrally to the Buyer, if reasonably possible, after close of business at each Seller, at
the latest at the Closing. Buyer acknowledges that such data may not fully reconcile with the
total of the accounts receivable and accounts payable established as part of the Estimated
Net Working Capital nor those established as part of the Closing Balance Sheet.
	 
	 	2.23	 	Jurisdiction For Disputes Under the Local Supply / Toll Manufacturing Agreements





	 	(a)	 	Each party hereto hereby commits to causing, and providing specific performance
of, each of its Affiliates or any other third party being a party



20









 





	 	 	 	to an agreement implementing the Frame Supply Agreement and/or the Frame Toll
Manufacturing Agreement on a local level (such an agreement, a Local Supply Agreement
and a Local Toll Manufacturing Agreement, respectively) to have any of the disputes,
controversies or claims arising out of, or in relation to, a Local Supply Agreement
and/or Local Toll Manufacturing Agreement resolved by the courts of Basel-City,
Switzerland, as if each such Affiliate or third party were itself a party to the Frame
Supply Agreement and/or the Frame Toll Manufacturing Agreement. If the courts of
Basel-City, Switzerland, do not accept jurisdiction for disputes arising out of, or in
relation to, a Local Supply Agreement and/or a Local Toll Manufacturing Agreement and if
acceptance of jurisdiction cannot be achieved by amending a Local Supply Agreement or
Local Toll Manufacturing Agreement appropriately, each party hereto commits to causing
each of its Affiliates or any other third party being a party to a Local Supply
Agreement and/or a Local Toll Manufacturing Agreement to have any of the disputes,
controversies or claims arising out of, or in relation to, a Local Supply Agreement
and/or a Local Toll Manufacturing Agreement resolved by arbitration in accordance with,
and pursuant to, the proceedings provided for in the Share and Asset Purchase Agreement
as if each such Affiliate or third party were itself a party to the Share and Asset Purchase Agreement.
	 
	 	(b)	 	Each party hereto commits to (i) performing itself, and (ii) procuring performance
by any of its Affiliates or third parties being a party to a Local Supply Agreement
and/or Local Toll Manufacturing Agreement of, any of its, its Affiliates, or the third
parties’ obligations under any final judgment rendered by the courts of Switzerland or,
as the case may be, under any final award of the arbitral tribunal appointed in
accordance with the terms of the Share and Asset Purchase Agreement in any matter brought
before such courts or such arbitral tribunal related to a Local Supply Agreement and/or
Local Toll Manufacturing Agreement.





	 	2.24	 	Cash Forwarding / Reimbursement





	 	(a)	 	In case that after the Closing or Local Closing Sellers or any of their Affiliates
receive payment of any of the accounts receivable assigned to a Local Buyer Entity under
a Sale and Transfer Agreement, Sellers or any of their Affiliates will inform the
respective Local Buyer Entity without undue delay and forward the payments received (with
or without applicable VAT, as appropriate) to the relevant Local Buyer Entity.



21









 





	 	(b)	 	Section (a) above shall apply mutatis mutandis if Buyer or a Local Buyer
Entity receives payment of any of the accounts receivable to the
extent a bad debt provision has been made on the Final Closing Balance Sheet.
	 
	 	(c)	 	If, and to the extent, Sellers should have received the Purchase Price
allocated to the Orion Business in the Ukraine both from the Local Buyer
Entity in the Ukraine and BHC, Sellers shall reimburse BHC in the amount
of any such double payment within fifteen (15) Business Days of having
received the second payment.





	 	2.25	 	EU Commitments
	 
	 	 	 	On 19 November 2004 the Commission of the European Union cleared the transactions
contemplated by the Share and Asset Purchase Agreement subject to the compliance with certain
commitments given by Buyer. In order to enable Buyer to comply with such commitments, Sellers
agree to provide to any of the third parties to whom certain Orion Assets may have to be
divested by the Buyer or a Local Buyer Entity transitional services to the extent and at the
terms Seller would have been required under the terms of the Share and Asset Purchase
Agreement and any implementing agreement thereof in the absence of such divestiture to a
third party; provided, however, that Sellers shall not be required to provide any
transitional services to such third party if Buyer is itself capable of, and legally
permitted to, providing transitional services to such third party.
	 
	 	2.26	 	Non-Termination of Certain Inter-Company Agreements
	 
	 	 	 	Article 8.3(b) of the Share and Asset Purchase Agreement shall be hereby amended by adding
the following additional paragraph:
	 
	 	 	 	“Notwithstanding the foregoing, the service, supply and manufacturing agreements set forth in
Schedule 8.3(b) shall continue to be effective following the Closing or the Local Closing, as
the case may be.”
	 
	 	2.27	 	Pension





	 	(a)	 	The Pension and Related Benefit Plans relating to the Transferred Employees (and
with respect to Transferred Plans, relating to all participants in such plans) shall (i),
with respect to Transferred Plans, become the responsibility of Buyer as from the
Effective Date, and (ii), with respect to Retained Plans, become the responsibility of
Buyer as from the Pension Transfer Date, it being understood that the
allocation of



22









 





	 	 	 	responsibility in this subsection (a)(ii) shall not prejudice Buyer’s obligations under
section 3.1 of Schedule 12.1.
	 
	 	(b)	 	Without prejudice to subsection (a) above, the parties hereby agree that Sellers’,
Buyer’s and the Local Buyer Entities’ respective rights and obligations relating to
pension and other benefit matters shall be governed by Article 12 and the respective
Schedules thereto of the Share and Asset Purchase Agreement and implemented by way of
the respective provisions on pensions and other benefit matters in the Sale and Transfer
Agreements.





	 	2.28	 	Dutch Indemnity





	 	(a)	 	In connection with the demerger of the Orion Business in The Netherlands
from Roche Nederland B.V. (the Demerging Company) into CHCN (the
Acquiring Company) according to Section 2:334a, paragraph 3 Dutch
Civil Code (the Demerger) there will be an alternative statutory liability of
the Acquiring Company and the Demerging Company under Section 2:334t
Dutch Civil Code.
	 
	 	(b)	 	The Demerging Company will primarily be liable for the obligations that will
be retained by the Demerging Company upon the Demerger becoming
effective and the Acquiring Company will primarily be liable for the
obligations that it will acquire upon the Demerger becoming effective. In
addition, on the basis of Section 2:334t Dutch Civil Code:





	 	(i)	 	the Acquiring Company will alternatively be liable for the performance
of obligations that will be retained by the Demerging Company; and
	 
	 	(ii)	 	the Demerging Company will alternatively be liable for the performance
of obligations that will be acquired pursuant to the Demerger by the Acquiring
Company. This statutory liability exists for obligations of the Demerging Company
at the moment the Demerger becomes effective and concerns both contractual and
statutory (e.g., tort) obligations.





	 	(c)	 	The liability based on Section 2:334t Dutch Civil Code is an alternative
liability (subsidiaire aansprakelijkheid). This means that the Acquiring
Company will only be held liable for performing an obligation that has been
retained by the Demerging Company if the Demerging Company is in
default in the performance thereof and the Demerging Company will only



23









 





	 	 	 	be held liable for performing an obligation that has been acquired pursuant to the Demerger
by the Acquiring Company if the Acquiring Company is in default in the performance thereof.
	 
	 	(d)	 	The parties hereby agree that:





	 	(i)	 	(y) any claim in connection with a liability under Section 2:334t Dutch Civil Code
brought against Buyer or any of its Affiliates (including the Acquiring Company) to
perform an obligation of the Demerging Company that exists at the moment the Demerger
becomes effective and that has been retained by the Demerging Company and (z) a claim of
a third party against the Acquiring Company to compensate damages the incurrance of
which must be primarily attributed to assets and liabilities, as described in the
Demerger Description, that have been retained by the Demerging Company, will be treated
as an Excluded Liability;
	 
	 	(ii)	 	(y) any claim in connection with a liability under Section 2:334t Dutch Civil Code
brought against Sellers (including the Demerging Company) to perform an obligation of
the Demerging Company that exists at the moment the Demerger becomes effective and that
has been acquired by the Acquiring Company pursuant to the Demerger and (z) a claim of a
third party against the Demerging Company to compensate damages the incurrence of which
must be primarily attributed to the assets and liabilities, as described in the Demerger
Description, that have been acquired by the Acquiring Company pursuant to the Demerger,
will be treated as an Assumed Orion Liability; and
	 
	 	(iii)	 	the liability limitations set forth in Article 11 (a), (b) and (c) of the Share
and Asset Purchase Agreement shall not apply to the indemnities agreed under this
section 2.28.





	 	(e)	 	If, and to the extent, the Acquiring Company acquires assets and/or
liabilities pursuant to the Demerger that do not qualify as Transferred Orion
Assets and Assumed Orion Liabilities, such assets shall be sold and/or
retransferred by the Acquiring Company to the Demerging Company and
such liabilities shall be transferred to, and assumed by, the Acquiring
Company. The Acquiring Company shall sell and accept the transfer
and/or assumption of the such assets and liabilities for EUR 1.



24









 





	 	(f)	 	If, and to the extent, assets and/or liabilities remain with the Demerging Company
that do qualify as Transferred Orion Assets and Assumed Orion Liabilities, such assets
shall be transferred or assigned by the Demerging Company to the Acquiring Company and
such liabilities shall be transferred to, and assumed by, the Demerging Company. The
Demerging Company shall purchase and accept the transfer and/or assumption of such
assets and liabilities for EUR 1.





	 	2.29	 	Place of Arbitration
	 
	 	 	 	Article 15.2, last sentence, of the Share and Asset Purchase Agreement shall be changed as
follows: “Place of arbitration shall be Zurich, Switzerland.”





	3.	 	General Provisions





	 	3.1	 	Effect of Amendment
	 
	 	 	 	All the references to the Share and Asset Purchase Agreement or any related document,
Schedule or Annex, shall mean the Share and Asset Purchase Agreement as amended by this
Amendment. Except as specifically provided for above, the Share and Asset Purchase Agreement
shall remain in full force and effect in the original form agreed by the parties, and is
hereby ratified and confirmed.
	 
	 	3.2	 	Severability
	 
	 	 	 	Should any part or provision of this Amendment be held to be invalid or unenforceable by any
competent arbitral tribunal, court, governmental or administrative authority having
jurisdiction, the other provisions of this Amendment shall nonetheless remain valid. In this
case, the parties shall endeavour to negotiate a substitute provision that best reflects the
economic intentions of the parties without being unenforceable, and shall execute all
agreements and documents required in this connection.
	 
	 	3.3	 	Execution





	 	(a)	 	This Amendment may be executed in a number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.



25









 





	 	(b)	 	Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed counterpart
of this Amendment.





	 	3.4	 	Applicable Law
	 
	 	 	 	This Amendment shall be governed by, and construed in accordance with, the substantive laws
of Switzerland, with the exclusion of the Vienna Convention on the International Sale of
Goods, dated April 11, 1980.
	 
	 	3.5	 	Dispute Settlement
	 
	 	 	 	Any dispute, controversy or claim arising out of, or in relation to, this Amendment, including
the validity, invalidity, breach or termination thereof, shall be resolved, to the exclusion
of the ordinary courts, by a three-person arbitral tribunal in accordance with the Swiss Rules
of International Arbitration of the Swiss Chambers of Commerce in force on the date on which
Notice of Arbitration is submitted in accordance with such rules, with Sellers on the one hand
and Buyers on the other hand each appointing one arbitrator and the two arbitrators thus
appointed designating the third arbitrator who shall be the chairperson of the arbitral
tribunal. The appointing authority shall be the Zurich Chamber of Commerce. The proceedings
shall be conducted and any award shall be rendered in English. The seat of arbitration shall
be Zurich, Switzerland.
	 
	 	 	 	Each party hereto hereby commits to causing, and providing for specific performance of, each
of its Affiliates (including each of the Local Buyer Entities in case of Buyer) that is a
party to a Sale and Transfer Agreement to have any of the disputes, controversies or claims
arising out of, or in relation to, a Sale and Transfer Agreement, resolved by arbitration in
accordance with, and pursuant to, the proceedings provided for in this Agreement as if each
such Affiliate (or, in case of Buyer, such Local Buyer Entity) were itself a party to this
Agreement.



26









 





	 	 	 	In witness whereof, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers in quadruplicate as of December 28, 2004, in Basel,
Switzerland.




	 	 	 
	Roche Holding AG:
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Roche Finanz AG:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Roche Pharmholding B.V.:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Roche Deutschland Holding GmbH:
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Hoffmann-La Roche France SAS:
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann






27









 





	 	 	 
	Roche SAS:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Laboratoires Syntex SA:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	For and on behalf of the Asset Seller Companies all as set forth
in Schedule (A), as amended, of the Share and Asset Purchase Agreement:
	 
	 	 
	 
	 	 
	/s/ Steve Krognes

	 	/s/ Dr. Beat Krähenmann
	 

	 	 
	Steve Krognes

	 	Dr. Beat Krähenmann
	 
	 	 
	 
	 	 
	Bayer Healthcare AG:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	/s/
Dr. Alexander Bey

	 	/s/ Peter Lauff
	 

	 	 
	Dr.
Alexander Bey

	 	Peter Lauff







28