Exhibit 10.13


 


CONFIDENTIAL TREATMENT


[***] Indicates that text has
been omitted which is the subject of a confidential treatment request. This
text has been separately filed with the SEC.


 




	
   

  	
   

  
	
  

  	
  Execution Copy

  






 


DATED DECEMBER 15, 2009


 


BUSINESS TRANSFER AGREEMENT


 


BY AND AMONG


 


ORCHID
CHEMICALS & PHARMACEUTICALS LTD


 


Mr. K. RAGHAVENDRA RAO


 


AND


 


OJAS PHARMACEUTICALS INDIA PRIVATE LIMITED


(TO BE RENAMED HOSPIRA HEALTHCARE INDIA PRIVATE LIMITED)


 


Khaitan &
Co.

Advocates,
Solicitors, Notaries, Patent & Trademark Attorneys 

One Indiabulls Centre, 13th Floor

841 Senapati Bapat Marg


Elphinstone
Road

Mumbai 400 013, India

T: +91 22 6636 5000

F: +91 22 6636 5050

Ref: HK/2009


 

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has
been omitted which is the subject of a confidential treatment request. This
text has been separately filed with the SEC.


 


TABLE OF CONTENTS


 


	
  1

  	
  DEFINITIONS AND
  INTERPRETATION

  	
  6

  
	
   

  	
  1.1

  	
  Definitions

  	
  6

  
	
   

  	
  1.2

  	
  Additional Defined Terms

  	
  15

  
	
   

  	
  1.3

  	
  Interpretation

  	
  17

  
	
  2

  	
  AGREEMENT TO SELL AND
  PURCHASE TRANSFERRED ASSETS OF THE BUSINESS

  	
  19

  
	
   

  	
  2.1

  	
  Transfer of the
  Transferred Assets of the Business

  	
  19

  
	
   

  	
  2.2

  	
  Excluded Assets

  	
  22

  
	
   

  	
  2.3

  	
  Assumed Liabilities

  	
  23

  
	
   

  	
  2.4

  	
  Excluded Liabilities

  	
  24

  
	
  3

  	
  PURCHASE PRICE

  	
  26

  
	
   

  	
  3.1

  	
  Consideration

  	
  26

  
	
   

  	
  3.2

  	
  Adjustment of Cash Consideration

  	
  26

  
	
   

  	
  3.3

  	
  Tax Treatment of
  Allocation of Cash Consideration

  	
  29

  
	
  4

  	
  EMPLOYEES AND EMPLOYEE
  BENEFIT FUNDS

  	
  29

  
	
   

  	
  4.1

  	
  Transfer of Employment

  	
  29

  
	
   

  	
  4.2

  	
  Prior Service

  	
  30

  
	
   

  	
  4.3

  	
  Accrued Vacation

  	
  30

  
	
   

  	
  4.4

  	
  Benefit Plans

  	
  30

  
	
   

  	
  4.5

  	
  Purchaser Plans

  	
  31

  
	
   

  	
  4.6

  	
  Closing Transferred
  Employee Liability

  	
  32

  
	
  5

  	
  CONDITIONS PRECEDENT

  	
  32

  
	
   

  	
  5.1

  	
  Conditions to the
  Obligation of the Purchaser

  	
  32

  
	
   

  	
  5.2

  	
  Conditions to the
  Obligation of the Seller

  	
  34

  
	
  6

  	
  PRE-CLOSING COVENANTS

  	
  35

  
	
   

  	
  6.1

  	
  Access and Investigation

  	
  35

  
	
   

  	
  6.2

  	
  Operation of the Business
  by the Seller

  	
  35

  
	
   

  	
  6.3

  	
  Consents and Filings;
  Reasonable Efforts

  	
  38

  
	
   

  	
  6.4

  	
  Notification

  	
  39

  
	
   

  	
  6.5

  	
  Shareholder Approval

  	
  40

  
	
   

  	
  6.6

  	
  No Negotiation

  	
  40

  
	
   

  	
  6.7

  	
  Intercompany Arrangements

  	
  41

  
	
   

  	
  6.8

  	
  Mixed Contracts and Mixed
  Accounts

  	
  41

  
	
   

  	
  6.9

  	
  Satisfaction of Obligations
  to Lenders

  	
  42

  
	
   

  	
  6.10

  	
  Real Property

  	
  42

  
	
   

  	
  6.11

  	
  Financial Statements

  	
  42

  
	
   

  	
  6.12

  	
  Contact with Customers and Suppliers

  	
  43

  
	
   

  	
  6.13

  	
  Replacement of Guarantees

  	
  43

  
	
   

  	
  6.14

  	
  Review of Closing Deliveries

  	
  43

  
	
   

  	
  6.15

  	
  Vizag Land

  	
  44

  
	
   

  	
  6.16

  	
  Additional Fill/Finish Manufacturing

  	
  44

  
	
   

  	
  6.17

  	
  Currency Conversion

  	
  44

  
	
   

  	
  6.18

  	
  Purchaser Parent Guarantee

  	
  44

  
	
   

  	
  6.19

  	
  Formulation/Fill/Finish NCE

  	
  44

  
	
  7

  	
  CLOSING

  	
  45

  
	
   

  	
  7.1

  	
  Closing

  	
  45

  
	
   

  	
  7.2

  	
  Closing Deliveries

  	
  45

  



 


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  7.3

  	
  Escrow
  Amount

  	
  47

  
	
   

  	
  7.4

  	
  Possession

  	
  48

  
	
  8

  	
  POST
  COMPLETION COVENANTS

  	
  48

  
	
   

  	
  8.1

  	
  Tax Matters

  	
  48

  
	
   

  	
  8.2

  	
  Excluded Liabilities

  	
  49

  
	
   

  	
  8.3

  	
  Public
  Announcements

  	
  49

  
	
   

  	
  8.4

  	
  Assistance
  in Proceedings

  	
  50

  
	
   

  	
  8.5

  	
  Privileges

  	
  50

  
	
   

  	
  8.6

  	
  Non-competition;
  Non-solicitation

  	
  50

  
	
   

  	
  8.7

  	
  Use of
  Trademarks

  	
  54

  
	
   

  	
  8.8

  	
  Reports and
  Returns

  	
  54

  
	
   

  	
  8.9

  	
  Access to
  Records

  	
  54

  
	
   

  	
  8.10

  	
  Returns of
  Products

  	
  55

  
	
   

  	
  8.11

  	
  Refunds

  	
  55

  
	
   

  	
  8.12

  	
  Inquiries

  	
  55

  
	
   

  	
  8.13

  	
  Product
  Complaints

  	
  55

  
	
   

  	
  8.14

  	
  Use of
  Corporate Name

  	
  56

  
	
   

  	
  8.15

  	
  Seller
  Mixed-Use Intellectual Property Licenses

  	
  56

  
	
   

  	
  8.16

  	
  Manufacture
  of Non-Business Products

  	
  57

  
	
   

  	
  8.17

  	
  Transition
  Services

  	
  57

  
	
   

  	
  8.18

  	
  Further
  Action

  	
  57

  
	
   

  	
  8.19 Proposed
  Transaction Notice and Exercise of Right of First Negotiation Regarding the
  Business and the Transferred Assets of the Business

  	
  59

  
	
   

  	
  8.20

  	
  Offer Notice
  and Exercise of Right of First Negotiation Regarding the Seller’s Beta-Lactam
  API Business

  	
  60

  
	
   

  	
  8.21

  	
  Pharmaceutical
  Research and Development Employees

  	
  61

  
	
  9

  	
  REPRESENTATIONS
  AND WARRANTIES OF SELLER

  	
  61

  
	
   

  	
  9.1

  	
  Organization
  and Good Standing

  	
  61

  
	
   

  	
  9.2

  	
  Authority
  and Enforceability

  	
  62

  
	
   

  	
  9.3

  	
  No Conflict

  	
  62

  
	
   

  	
  9.4

  	
  Financial
  Statements

  	
  63

  
	
   

  	
  9.5

  	
  Books and
  Records

  	
  63

  
	
   

  	
  9.6

  	
  Inventory

  	
  64

  
	
   

  	
  9.7

  	
  No
  Undisclosed Liabilities

  	
  64

  
	
   

  	
  9.8

  	
  Absence of
  Certain Changes and Events

  	
  64

  
	
   

  	
  9.9

  	
  Assets

  	
  66

  
	
   

  	
  9.10

  	
  Real
  Property

  	
  67

  
	
   

  	
  9.11

  	
  Intellectual
  Property

  	
  69

  
	
   

  	
  9.12

  	
  Software

  	
  71

  
	
   

  	
  9.13

  	
  Contracts

  	
  72

  
	
   

  	
  9.14

  	
  Indebtedness
  Contracts

  	
  75

  
	
   

  	
  9.15

  	
  Tax Matters

  	
  76

  
	
   

  	
  9.16

  	
  Employee
  Benefit Matters

  	
  78

  
	
   

  	
  9.17

  	
  Employment
  and Labour Matters

  	
  80

  
	
   

  	
  9.18

  	
  Environmental,
  Health and Safety Matters

  	
  82

  
	
   

  	
  9.19

  	
  Compliance
  with Laws, Judgments and Governmental Authorizations

  	
  83

  
	
   

  	
  9.20

  	
  Regulatory
  Compliance

  	
  84

  
	
   

  	
  9.21

  	
  Promotional
  Practices

  	
  86

  
	
   

  	
   

  	
   

  



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  9.22

  	
  Information and Disclosure

  	
  87

  
	
   

  	
  9.23

  	
  Legal Proceedings

  	
  88

  
	
   

  	
  9.24

  	
  Customers and Suppliers

  	
  88

  
	
   

  	
  9.25

  	
  Products; Product Warranty

  	
  89

  
	
   

  	
  9.26

  	
  Product Liability

  	
  89

  
	
   

  	
  9.27

  	
  Insurance

  	
  89

  
	
   

  	
  9.28

  	
  Related Party Transactions

  	
  90

  
	
   

  	
  9.29

  	
  Brokers or Finders

  	
  90

  
	
   

  	
  9.30

  	
  Solvency

  	
  91

  
	
   

  	
  9.31

  	
  No Business Assets

  	
  91

  
	
  10

  	
  REPRESENTATIONS
  AND WARRANTIES OF PURCHASER

  	
  91

  
	
   

  	
  10.1

  	
  Organization and Good
  Standing

  	
  91

  
	
   

  	
  10.2

  	
  Authority and
  Enforceability

  	
  91

  
	
   

  	
  10.3

  	
  No Conflict

  	
  92

  
	
   

  	
  10.4

  	
  Legal Proceedings

  	
  92

  
	
   

  	
  10.5

  	
  Brokers or Finders

  	
  92

  
	
   

  	
  10.6

  	
  Financing

  	
  92

  
	
  11

  	
  INDEMNITY

  	
  92

  
	
   

  	
  11.1

  	
  Indemnification by the
  Seller

  	
  92

  
	
   

  	
  11.2

  	
  Indemnification by the
  Purchaser

  	
  93

  
	
   

  	
  11.3

  	
  Claim Procedure

  	
  94

  
	
   

  	
  11.4

  	
  Third Party Claims

  	
  95

  
	
   

  	
  11.5

  	
  Survival of
  Representations and Warranties

  	
  97

  
	
   

  	
  11.6

  	
  Limitations on Liability

  	
  98

  
	
   

  	
  11.7

  	
  Treatment

  	
  100

  
	
   

  	
  11.8

  	
  Currency Conversion

  	
  100

  
	
   

  	
  11.9

  	
  Exclusive Remedy

  	
  100

  
	
   

  	
  11.10

  	
  Knowledge

  	
  100

  
	
  12

  	
  TERMINATION

  	
  101

  
	
   

  	
  12.1

  	
  Termination Events

  	
  101

  
	
   

  	
  12.2

  	
  Effect of Termination

  	
  102

  
	
   

  	
  12.3

  	
  Effect of Termination
  under Clause 12.1.2(e)

  	
  102

  
	
  13

  	
  CONFIDENTIALITY

  	
  103

  
	
   

  	
  13.1

  	
  General Obligation

  	
  103

  
	
   

  	
  13.2

  	
  Exceptions

  	
  103

  
	
  14

  	
  GOVERNING
  LAW AND ARBITRATION

  	
  104

  
	
   

  	
  14.1

  	
  Governing Law

  	
  104

  
	
   

  	
  14.2

  	
  Arbitration

  	
  104

  
	
  15

  	
  MISCELLANEOUS

  	
  105

  
	
   

  	
  15.1

  	
  Notices

  	
  105

  
	
   

  	
  15.2

  	
  Further Assurances

  	
  106

  
	
   

  	
  15.3

  	
  Amendments

  	
  106

  
	
   

  	
  15.4

  	
  Waiver and Remedies

  	
  107

  
	
   

  	
  15.5

  	
  Assignment and Successors
  and No Third Party Rights

  	
  107

  
	
   

  	
  15.6

  	
  Specific Performance

  	
  107

  
	
   

  	
  15.7

  	
  Expenses

  	
  108

  
	
   

  	
  15.8

  	
  Entire Agreement

  	
  108

  
	
   

  	
  15.9

  	
  Partial Invalidity

  	
  108

  



 


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  15.10

  	
  Schedules and Exhibits

  	
  108

  
	
   

  	
  15.11

  	
  Counterparts

  	
  108

  
	
   

  	
  15.12

  	
  Performance of Obligations
  by Affiliates

  	
  109

  
	
   

  	
  15.13

  	
  No Joint Venture

  	
  109

  
	
   

  	
  15.14

  	
  Mutual Goodwill

  	
  109

  



 


List of Exhibits


 


	
  Exhibit A

  	
  API Supply Agreement

  
	
  Exhibit B

  	
  Oral Ceph Contract Manufacturing Agreement

  
	
  Exhibit C

  	
  Fill/Finish NCE Contract Manufacturing Agreement

  
	
  Exhibit D

  	
  Escrow Agreement

  
	
  Exhibit E

  	
  IP Assignment

  
	
  Exhibit F

  	
  [Intentionally Omitted]

  
	
  Exhibit G

  	
  Closing Certificate

  
	
  Exhibit H

  	
  Form of Press Release

  
	
  Exhibit I

  	
  Transition Services Agreement

  
	
  Exhibit J

  	
  Purchaser
  Parent Guarantee

  
	
   

  	
   

  
	
  List of Schedules

  
	
   

  	
   

  
	
  1.1

  	
  Promoter Group

  
	
  1.1(a)

  	
  Leased Business Real Property

  
	
  1.1(b)

  	
  Permitted Encumbrances

  
	
  1.1(c)

  	
  Seller Mixed-Use Intellectual Property

  
	
  1.1(d)

  	
  Key Employees

  
	
  2.1.6

  	
  List of Contracts of the Business

  
	
  2.2.9

  	
  Excluded Assets in India

  
	
  2.3.6

  	
  Scheduled Assumed Liabilities

  
	
  3.3

  	
  Cash Consideration Allocation

  
	
  5.1.3

  	
  Government Authorizations

  
	
  5.1.4

  	
  Registrations

  
	
  5.1.5

  	
  Competition / Investment Law Jurisdictions

  
	
  5.1.6

  	
  Consents

  
	
  6.8

  	
  Mixed Contracts

  
	
  6.19

  	
  Fill/Finish NCE Contract Manufacturing Agreement Principles

  
	
  8.17

  	
  Transition Services Agreement

  
	
  8.18.4

  	
  Governmental Authorizations and Registrations Remaining with Seller

  
	
  9

  	
  Seller
  Disclosure Schedule

  



 


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This
BUSINESS TRANSFER AGREEMENT (this “Agreement”) is made on this 15th day of December 2009:


 


BY AND AMONG:


 


ORCHID
CHEMICALS & PHARMACEUTICALS LTD, a company incorporated under the Act and
having its registered office at Orchid Towers, No 313, Valluvar Koddam High
Road, Nungambakkam, Chennai 600034, India (hereinafter referred to as the “Seller”,
which expression shall, unless repugnant to the context or meaning thereof,
mean and include its successors and permitted assigns) of the FIRST PART;


 


Solely
for purposes of Clause 8.6.1 through and including Clause 8.6.4,  Mr. K. RAGHAVENDRA RAO, an individual and the founder,
managing director and one of the members of Promoter Group of the Seller
(hereinafter referred to as the “KRR”, which expression shall, unless repugnant to
the context or meaning thereof, mean and include his heirs, executors,
administrators, successors and permitted assigns);


 


AND


 


OJAS PHARMACEUTICALS INDIA PRIVATE LIMITED (to be renamed Hospira
Healthcare India Private Limited), a company incorporated under the Act and
having its registered office at Unit G, Hotel Dreamz Park Office Complex,
571/2, Anna Salai, Teynampet, Chennai — 600018, Tamil Nadu, India (hereinafter
referred to as the “Purchaser”, which expression shall, unless repugnant to
the context or meaning thereof, mean and include its successors and permitted
assigns) of the SECOND PART;


 


WHEREAS:


 


In
addition to their other activities, the Seller and its Affiliates are engaged
in the Business (as hereinafter defined).


 


The
Seller desires to sell, assign, transfer, convey and deliver, and/or cause its
Affiliates to sell, assign, transfer, convey and deliver, to the Purchaser or one
of its Affiliates, and the Purchaser desires to purchase and acquire, or cause
its Affiliates to purchase and acquire, from the Seller and its Affiliates the
Transferred Assets of the Business as a going concern on a slump sale basis (as
defined in Section 2(42C) of the Tax Act) and in connection therewith the
Purchaser is willing to assume the Assumed Liabilities, all upon the terms and
subject to the conditions set forth in this Agreement.


 


Concurrently
with the execution of this Agreement, the shareholders of the Seller listed on Schedule
1.1, who hold, in the aggregate, 14,912,172 shares of the Seller, which
represent approximately 21.17% of the issued and outstanding share capital of
Seller (the “Promoter Group”), have delivered a
letter agreement to the Purchaser and the Seller pursuant to which (a) they
consent to, and agree to vote all of their shares of the Seller in favour of,
the entering into of this Agreement by the Seller and the transactions
contemplated hereby and (b) agree to be bound by the covenant set forth in
Clause 6.6.


 


Concurrently
with the execution of this Agreement, Hospira, Inc., a Delaware
corporation and the parent company of the Purchaser, has executed and delivered
to the Seller the Purchaser Parent Guarantee set forth in Exhibit J.


 


NOW, THEREFORE,
in consideration of mutual agreements, covenants, representations and
warranties set forth in this Agreement, and for other good and valuable
consideration, the sufficiency of which is acknowledged by the Parties, the
Parties hereby agree as follows:


 


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1                                         DEFINITIONS AND
INTERPRETATION


 


1.1                                 Definitions


 


In this
Agreement, (a) capitalized terms defined by inclusion in quotations and/or
parenthesis have the meanings so ascribed; and (b) the following terms
shall have the following meanings assigned to them herein below:


 


“Accounts Receivable” means all accounts, notes and other
receivables, including any value added Taxes or similar Taxes levied on such
accounts receivable, any unpaid interest accrued on any such accounts
receivable and any security or collateral related thereto, all file
documentation related to such accounts, notes and other receivables, including
invoices, shipping documents, communications and correspondence submitted to or
received from customers related to such sales;


 


“Act” means the (Indian) Companies Act, 1956;


 


“Affiliate” in relation to any Party means in case of a
natural Person, the Relative of such Person, and in case of a Person other than
a natural Person, any Person, which, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under the Common Control of
that Person;


 


“Ancillary Agreements” means, collectively, (a) the
Lease Deeds, (b) the IP Assignment, (c) the API Supply Agreement, (d) the
Oral Ceph Contract Manufacturing Agreement, (e) the Transition Services
Agreement, (f) the Fill/Finish NCE Contract Manufacturing Agreement (if
executed), (g) the Escrow Agreement, (h) the Purchaser Parent
Guarantee and (i) any other instruments of sale, conveyance, transfer and
assignment between the Seller or any of its Affiliates, on the one hand, and
the Purchaser or any of its Affiliates, on the other hand, in form and
substance reasonably satisfactory to the Purchaser and the Seller, as may be
reasonably necessary or advisable under applicable Law to effect the
transactions contemplated by this Agreement and the Ancillary Agreements;


 


“API” means active pharmaceutical ingredients;


 


“API Supply Agreement” means the API Supply Agreement to be
entered into by and between the Purchaser and the Seller at the Closing in the
form of Exhibit A;


 


 


 


[***]


 


 


 


“Benchmark Net Working Capital” means USD 30,000,000 (United States
Dollar Thirty Million);


 


“Beta-Lactam” means the class of compounds containing a
ß-lactam nucleus in their molecular structure, including penicillins,
cephalosporins, penems and aztreonam;


 


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“Business” means the business of researching, evaluating and
litigating originator Intellectual Property as permitted under Law for,
developing, testing, obtaining regulatory approval for, manufacturing,
negotiating third party contracts for, procuring materials for, performing fill
and finish services for, marketing, distributing and selling injectable
pharmaceutical products for all human and animal prophylactic and therapeutic
uses in all formulations and dosage forms and for any and all indications, as
such business is conducted anywhere in the world by the Seller and its
Affiliates immediately prior to the date of this Agreement, subject to any
changes on or prior to the Closing permitted in accordance with Clause 6.2,
but specifically excluding the Other Businesses. It is agreed and understood
that the Business does not include any Excluded Assets and Excluded
Liabilities;


 


“Business Day” means any day other than a Saturday, a Sunday
or any day on which banks in Chennai, Tamil Nadu and Mumbai, Maharashtra in
India are required or authorized to be closed;


 


“Change of Control” means the acquisition by a third party of
more than 50% (fifty percent) of the outstanding shares of voting capital stock
of the Seller.


 


“Closing” means the closing of the purchase and sale of the
Transferred Assets of the Business and the assignment and assumption of the
Assumed Liabilities, each as contemplated by this Agreement and the Ancillary
Agreements;


 


“Closing Net Working Capital” means the difference between: (a) the
sum of the current assets of the Business listed in Clause 3.2.2 minus (b) the
sum of the current liabilities of the Business listed in Clause 3.2.2 in
each case, (a) and (b), as of the close of business on the date
immediately prior to the Closing Date and as determined in accordance with GAAP
applied on a basis consistent with the Financial Statements;


 


“Competition/Investment Law” means any Law that is designed
or intended to prohibit, restrict or regulate: (a) foreign investment; or (b) antitrust,
monopolization, restraint of trade or competition, including the HSR Act;


 


“Consent” means any license, permission, approval, clearance,
franchise, permit, notice, consent, authorization, waiver, grant, concession,
agreement, certificate, exemption, order or registration from any Government
Authority or any other third party;


 


“Contract” means any contract, agreement, lease, license,
commitment, understanding, franchise, warranty, guaranty, mortgage, note,
indenture, bond, debenture, letter of credit, option, pledge, security
agreement, warrant, right or other instrument or consensual obligation, whether
written or oral;


 


“Controlling”, “Controlled by”
or “Control”, with respect to any Person,
means (i) the ownership of 50% (fifty percent) or more of the equity
shares or other voting securities of such entity; or (ii) possession of
the power to direct the management and policies of such entity; or (iii) the
power to nominate for appointment the majority of the directors, managers,
partners or other individuals exercising similar authority with respect to such
Person by virtue of ownership of voting securities or management or contract or
in any other manner whatsoever, directly or indirectly, including through one
or more other entities; and the term “Common Control”
shall be construed accordingly;


 


7














 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


“Corporate Name” means the trademarks, trade names or
corporate logos “Orchid Chemicals & Pharmaceuticals Ltd.,” “Orchid
Healthcare (A Division of Orchid Chemicals & Pharmaceuticals Ltd.),” “Orgenus
Pharma, Inc. (Subsidiary of Orchid Pharmaceuticals, Inc.)”, “Orchid
Europe Limited,” “Orchid Pharmaceuticals SA (Proprietary) Limited,” “Orchid
Pharma Japan KK,” “Health Orchid,” “Orchidpharma.com” and the “flower logo” and
any variants and derivatives of any of the foregoing, including any applicable
domain names, in each case used prior to the Closing in connection with the
Business;


 


“Dollars”, “USD” or “$” means United States Dollars or the lawful currency of the
United States;


 


“Effective Date” means the date of execution of this
Agreement;


 


“Employee Plan” means any bonus, incentive compensation,
performance award, deferred compensation, cash allowance, employee state tax
contribution, pension, deposit link insurance, profit sharing, retirement,
provident, superannuation, gratuity, stock purchase, stock option, stock
ownership, stock appreciation right, phantom stock, leave of absence, layoff,
severance, retrenchment, redundancy, retention, vacation, holiday, annual
leave, day or dependent care, legal services, cafeteria, life, health,
accident, disability, fringe benefit, loans, club memberships, company
accommodation (owned or leased), company product purchase plan, house rent or
other housing allowance, conveyance, car, driver or other transport allowance,
education assistance or allowance (including scholarships and grants), transfer
and new employee joining relocation plan, field work daily allowances, medical
allowance or insurance, maternity benefits, lunch coupons or other comparable
allowance, leave travel allowance, reimbursement, sales or other performance
incentives or allowances, company sponsored health plans or other welfare
benefit or employee benefit plan, practice, policy, scheme, allowance or
arrangement, whether written or oral, of the Seller or any of its Affiliates;


 


“Encumbrance” means any charge, claim, mortgage, servitude,
easement, right of way, community or other marital property interest, adverse
ownership claim, title defect, covenant, equitable interest, license, lease,
sub-lease or other possessory interest, lien, Tax lien, option, pledge,
security interest, preference, priority, right of first refusal, option,
restriction, obligation or other encumbrance of any kind or nature whatsoever
(whether absolute or contingent);


 


“Environmental Law” means any Law relating to the environment
(including ambient air, surface water, ground water, land surface, and
subsurface strata), natural resources, pollutants, contaminants, wastes,
chemicals or public health and safety, including any Law pertaining to: (a) treatment,
storage, disposal, generation and transportation of Hazardous Materials; (b) air,
water, land and noise pollution; (c) groundwater, surface water, or soil
contamination; (d) the release or threatened release into the environment
of Hazardous Materials, including intentional or accidental emissions,
discharges, injections, spills, escapes or dumping of pollutants, contaminants
or chemicals; (e) the manufacture, processing, use, distribution,
treatment, storage, disposal, transportation or handling of Hazardous
Materials; (f) underground and aboveground tanks and other storage tanks
or vessels, abandoned, disposed or discarded barrels, containers and other
closed receptacles; (g) public health and safety; (h) the
registration, evaluation, authorization, or restriction of Hazardous Materials;
or (i) the protection of wild life, plants, habitat, marine sanctuaries and
wetlands, including all endangered and threatened species;


 


8

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


“Escrow Agent” means Standard Chartered Bank, or such other
bank or trust mutually agreed in writing by the Parties.


 


“Escrow Agreement” means the Escrow Agreement to be entered
into by and among the Seller, the Purchaser and the Escrow Agent at the Closing
in the form of Exhibit D;


 


“Excluded Countries” means Myanmar, Yemen, Russia, Armenia,
Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan,
Uzbekistan, Georgia, and Ukraine;


 


“Finished API” means API used in the manufacture of the
products of the Business that (a) has passed all quality inspection tests
such that a document certifying that the API conforms to the specifications
therefor has been or could be signed and dated by a duly authorized
representative of the Seller and (b) has been or may be released for
transfer to the manufacturing facility included in the Leased Business Real
Property located in Irungattukottai, India.


 


“Fill/Finish  NCE Contract Manufacturing
Agreement” means the Fill/Finish NCE Contract Manufacturing
Agreement for [***] developed by [***], utilizing the Transferred Assets of the
Business referred to in Clause 6.19;


 


“GAAP” means generally accepted accounting principles for
financial reporting in India as in effect as of the date of this Agreement;


 


“Governmental Authority” means any (a) nation, region,
state, county, city, town, village, district or other jurisdiction; (b) federal,
state, local, municipal, foreign or other government; (c) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department or other entity and any court or other tribunal); (d) multinational
organization; or (e) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory or taxing
authority or power of any nature;


 


“Governmental Authorization” means, other than the
Registrations, all filings and applications with any Governmental Authority,
and all Consents, registrations, re-registrations, and declarations issued,
granted, given or otherwise made available by or under the authority of any
Governmental Authority or pursuant to any Law;


 


“Hazardous Material” means any raw material, intermediate
product, byproduct, pollutant, contaminant, chemical, solvent, waste or any
other substance or material (whether solids, liquids or gases) that is
infectious, carcinogenic, persistent, ignitable, corrosive, reactive,
explosive, poisonous, toxic or otherwise hazardous or that is listed, defined,
designated or classified, or otherwise regulated under any Environmental Law,
including any admixture or solution thereof, and including petroleum and all
byproducts and derivatives thereof or synthetic substitutes therefor, asbestos
or asbestos-containing materials in any form or condition, radioactive
materials, urea-formaldehyde, lead and lead-based paints, polychlorinated
biphenyls and any other material or substance that is or that may present a
threat to human health or the environment;


 


“Hedging Obligations” means, with respect to any Person, all
Liability of such Person under any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or


 


9

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


option, bond,
note or bill option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing;


 


“Hospira Agreements” means, collectively, (i) the In
License Distribution Agreement, dated September 23, 2005, between Mayne
Pharma Pty Ltd. and the Seller, (ii) the Manufacture, Supply and
Distribution Agreement, dated December 21, 2007, between Hospira UK
Limited  and the Seller, (iii) the
Manufacture and Supply Agreement, dated December 11, 2008, between Hospira
Inc. and the Seller and (iv) the Manufacture and Supply Agreement, dated September 16,
2009, between Hospira Inc. and the Seller, in each case as amended;


 


“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 of the United States;


 


“Indebtedness” of any Person means, without duplication: (a) all
indebtedness of such Person, whether or not contingent, for borrowed money; (b) all
obligations of such Person evidenced by credit agreements, notes, mortgages, bonds,
letters of credit, Hedging Obligations, debentures or other similar instruments
or debt securities and warrants or other rights to acquire any such instruments
or securities, including obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses (including capital lease
obligations); and (c) all indebtedness of others referred to in clauses (a) and
(b) hereof guaranteed, directly or indirectly, in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through
an agreement, undertaking or arrangement by which such Person guarantees,
endorses or otherwise becomes or is contingently liable for the indebtedness
referred to in clauses (a) and (b) of any other Person: (i) to
pay or purchase such Indebtedness or to advance or supply funds for the payment
or purchase of such Indebtedness; (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss; (iii) to supply funds
to or in any other manner invest in the debtor (including any agreement to pay
for property or services irrespective of whether such property is received or
such services are rendered); (iv) to grant an Encumbrance on existing or
future property owned or acquired by such Person (including Contracts), whether
or not the obligation secured thereby has been assumed or (v) otherwise to
assure a creditor against loss. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor;


 


“India” means the Republic of India and
shall include special economic zones, ports and airports within the
geographical area of the Republic of India;


 


“Intellectual Property” means all of the following anywhere
in the world and all legal rights, title or interest in, under or in respect of
the following arising under Law, whether or not filed, perfected, registered or
recorded and whether now or later existing, filed, issued or acquired,
including all renewals: (a) all national, regional and
international patents, patent applications, patent disclosures,
utility models, utility model applications, petty patents, design patents and


 


10

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


certificates of inventions, and all related re-issues,
re-examinations, divisions, revisions, restorations, renewals, extensions,
provisionals, continuations and continuations in part; (b) all copyrights, copyright registrations
and copyright applications, copyrightable works and all other corresponding
rights; (c) all mask works, mask work registrations and mask work
applications and all other corresponding rights; (d) all Trademarks; (e) all
inventions (whether patentable, patented or unpatentable and whether or not
reduced to practice, any said patents, including any extensions, reissues,
reexaminations, renewals, divisions, continuations, continuations-in-part, or
design patents); (f) know-how, including technical know-how, process
know-how, technology, technical data, trade secrets, confidential business
information, manufacturing and production processes and techniques, regulatory
requirements and information, clinical data and protocols, research and
development information (including all research and development data,
experimental and project plans and pipeline product information), storing and
shipping information, financial, marketing and business data, pricing and cost
information, business and marketing plans, advertising and promotional
materials, customer, distributor, third party manufacturer and supplier lists
and information, correspondence, records, and other documentation, and other
proprietary documentation and information of every kind; (g) all
databases, data collections and data exclusivity; (h) all other
proprietary rights; and (i) all copies and tangible embodiments of any of
the foregoing (in whatever form or medium); including the
right to sue for past, present or future infringement, misappropriation or
dilution of any of the foregoing;


 


“Judgment” means any order, injunction, judgment, decree,
ruling, assessment or arbitration award of any Governmental Authority or
arbitrator;


 


“Key Employees” means those Business Employees listed in Schedule
1.1(d).


 


“Knowledge” means, with respect to the Seller, the
information that any Key Employee is actually aware of following a reasonable
investigation concerning the existence of the relevant fact or matter;


 


“Law” means any federal, national, regional, state, local,
county, city, municipal, town, village, district, foreign or other
constitution, law, statute, treaty, rule, regulation, ordinance, order, code,
binding case law or principle of common law or any condition or term imposed
pursuant to any Governmental Approvals;


 


“Leased Business Real Property” means the parcels of Real
Property that are leased by the Seller as tenant, all of which are set forth on
Schedule 1.1(a);


 


“Liability” means liabilities, debts or other obligations of
any kind or nature, whether known or unknown, absolute, accrued, contingent,
liquidated, unliquidated or otherwise, due or to become due or otherwise, and
whether or not required to be reflected on a balance sheet prepared in
accordance with GAAP;


 


“Loss” means any loss, Proceeding, Judgment, damage, fine,
penalty, expense (including reasonable attorneys’ or other professional fees
and expenses and court costs), injury, diminution of value, Liability, Tax,
Encumbrance or other cost or expense;


 


“Material Adverse Effect” means any event, change,
circumstance, effect or other matter that has, or could reasonably be expected
to have, either individually or in the aggregate with all


 


11

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


other
events, changes, circumstances, effects or other matters, with or without
notice, lapse of time or both, a material adverse effect on: (a) the
business, assets, Liabilities, properties, condition (financial or otherwise),
operating results or operations or prospects of the Business taken as a whole;
or (b) the ability of the Seller or any of its respective Affiliates to
perform its material obligations under this Agreement, the Ancillary Agreements
or to consummate timely the transactions contemplated by this Agreement or the
Ancillary Agreements; provided, however, that a “Material
Adverse Effect” shall exclude any event, circumstance, change or other matter
that generally affects Persons engaged in the business of developing,
manufacturing, marketing or selling generic injectable pharmaceutical products,
except to the extent such event, circumstance, change or other matter has a
materially disproportionate effect on the Business, taken as a whole, relative
to other businesses engaged in the generic injectable pharmaceutical business;


 


“NCE’s” and/or “NBE’s” means a pharmaceutical product
containing (a) a new, novel and innovator chemical compound (“NCE”) or (b) a new, novel and innovator biological
substance derived from a living organism or a DNA or RNA mechanism (“NBE”), in each case, (a) and (b), (i) in any
therapeutic class and for all human and animal prophylactic and therapeutic
uses in all formulations and dosage forms and for any and all indications, (ii) which have not
been developed as of the Closing Date and which could not be commercialized in
the United States without first filing a New Drug Application (“NDA”) or a new therapeutic Biologic License Application (“BLA”), as the case may be, and obtaining the approval of the
FDA to such NDA or BLA, as the case may be, and (iii) which upon obtaining
such approval of the FDA to such NDA or BLA, as the case may be, has been
granted, or could reasonably be expected to be granted, at least 3 (three)
years of data or market exclusivity from the appropriate Governmental
Authority.


 


“NPNC” means non-penicillin, non-cephalosporin;


 


“Occupational Safety and Health Law” means any Law designed
to provide safe and healthful working conditions and to reduce occupational
safety and health hazards, and any program, whether governmental or private
(such as those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions;


 


“Oral
Ceph
Contract Manufacturing Agreement” means
the Oral Ceph Contract Manufacturing Agreement for the manufacture of the
Seller’s oral cephalosporin formulation products utilizing the Transferred
Assets of the Business, to be entered into by and between the Purchaser and the
Seller at the Closing in the form of Exhibit B;


 


“Ordinary Course of Business” means the usual, regular and
ordinary course of business of the Business, consistent with Seller’s past
custom and practice, but only to the extent consistent with applicable Law; provided
that a series of related transactions which taken together is not in the
Ordinary Course of Business shall not be deemed to be in the Ordinary Course of
Business;


 


“Other Businesses” means all businesses conducted as of the
Effective Date by the Seller and its Affiliates (other than the Business),
including (i) the business of researching, developing, testing,
manufacturing, selling, marketing and distributing API, (ii) the business
of researching, developing, testing, manufacturing, selling, marketing and
distributing oral pharmaceutical products anywhere in the world, (iii) the
business of performing drug discovery, research,


 


12

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


development
work and/or manufacturing for Seller’s own requirements or a third party’s
requirements with respect to NCE’s and/or NBE’s, and (iv) the business of (1) purchasing
generic injectable pharmaceutical products from one or more third parties for
resale in the Excluded Countries and India pursuant to a supply agreement or
toll manufacturing agreement and (2) selling, marketing or distributing
such generic injectable pharmaceutical products in the Excluded Countries and
India;


 


“Owned Business Real Property” means any Real Property in
which the Seller or any Affiliate of the Seller has a freehold title (or equivalent)
interest;


 


“Parties” means collectively the Seller, the Purchaser and,
solely for the purposes of Clause 8.6.1 through and including Clause
8.6.4, KRR, and “Party” means
each of them individually;


 


“Permitted Encumbrances” means (a) Encumbrances for
Taxes not yet due and payable, or being contested in good faith, and for which
appropriate reserves have been established in the Balance Sheet or
since the date of the Balance Sheet, have been incurred in the Ordinary Course
of Business, (b) Encumbrances in respect of property or
assets imposed by Law that were incurred in the Ordinary Course of Business,
such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other
similar liens, (c) with respect to the Real Property, (i) reciprocal
easement agreements, utility easements and other customary encumbrances on
title, and (ii) zoning, ordinances, building codes, regulations and
enactments of any Governmental Authority having jurisdiction over the Real
Property; provided, that such matters described in clauses (i) and (ii) do not, individually or in the
aggregate, materially impair the present use of the Real Property in the operation
of the Business or the value of the Real Property, affected thereby and (d) Encumbrances set
forth on Schedule 1.1(b).


 


“Person” means any natural person, firm, corporation, limited
company, private limited company, limited liability company, Governmental
Authority, joint venture, general or limited partnership, trust, association or
other entity (whether or not having separate legal personality);


 


“Pip-Tazo Litigation” means the Proceeding in the matter of Wyeth Pharmaceuticals Plaintiff, U.S. Food and Drug Administration et
al., Defendant; and Orchid Chemicals & Pharmaceuticals Ltd., and
Apotex Corp., Interventors , Case No. 1:09-cv-1810 filed in the
United States District Court of the District of Columbia pursuant to which
Wyeth Pharmaceuticals is seeking an order to withdraw or suspend the approval
of the ANDAs granted to the Seller for a generic form of Wyeth’s
piperacillin-tazobactam injections or to modify such ANDA and any appeals with
respect to such remedies;


 


“Proceeding” means any action, arbitration, audit,
examination, investigation, hearing, litigation or suit (whether civil,
criminal, administrative, judicial or investigative, whether formal or
informal, and whether public or private) commenced, brought, conducted or heard
by or before, or otherwise involving, any Governmental Authority or arbitrator;


 


“Planning and Zoning Laws” means all Laws intended to control
or regulate the construction, demolition, alteration or use of land or
buildings or to preserve or protect national heritage;


 


“Prime Rate” means a rate
per annum equal to Twelve Month LIBOR plus two percent (2%), as set by the
British Bankers Association;


 


13

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


“Product Laws” means any Laws related to the manufacture,
research, sales, marketing, development or distribution of the products of the
Business, including the Drugs and Cosmetics Act, 1940 and the Drugs and
Cosmetics Rules, 1945, the Standard Weights and Measures Act, 1976 and Bureau
of Indian Standards Act, 1986 (or similar Laws in other countries);


 


“Real Property” means all land and all buildings and other
structures, facilities or Improvements located thereon, capital work in
progress and all easements, licenses, rights and appurtenances relating to the
foregoing;


 


“Registrations” means the authorizations, approvals,
licenses, permits, certificates, or exemptions issued by any Governmental
Authority (including investigational new drug applications (INDs), new drug
applications (NDAs), supplemental new drug applications, abbreviated new drug
applications (ANDAs), pre-market approval applications, 510(k) notifications,
pre-market notifications, investigational device exemptions, product
recertifications, manufacturing approvals and authorizations, the European
Union Conformity Marketing (CE Marks) issued by the European Notified Body,
pricing and reimbursement approvals, labeling approvals or their foreign
equivalent) held by the Seller or its Affiliates immediately prior to the
Closing that are (i) specific to Persons engaged in the business of
developing, manufacturing, marketing or selling generic injectable
pharmaceutical products and (ii) required for the research, development,
clinical testing, manufacture, sale, marketing, distribution, storing,
transportation, importation, exportation or use of the products of the Business
as currently conducted;


 


“Relative”
shall bear the meaning assigned to the term in the Act;


 


“Related Party” in relation to a Person includes: (i) any
company under the same management (as defined by Section 370(1B) of the
Act) of such Person; (ii) any Controlling shareholder of such Person, (iii) any
director of such Person, (iv) any officer of such Person, (v) any
Person in which any Controlling shareholder, director or officer of such Person
has any interest, other than a passive shareholding of less than 5% in a
publicly listed company, (vi) any firm or unlisted company in which such
Person, is a partner, Controlling shareholder or director, and (vii) any
other Affiliate of such Person or of a Controlling shareholder or director of
such Affiliate;


 


“Rupees”, “Rs” or “INR” means Indian rupees, the lawful currency of India;


 


“Seller Mixed-Use Intellectual Property” means all
Intellectual Property that is not included in the Purchased Intellectual
Property and that is used in connection with, or related to, both the Business
and the Other Businesses and is owned by or licensed to the Seller or its
Affiliates at the Closing, in each case as is set forth on Schedule 1.1(c);


 


“SEZ” means the special economic zone in Visakhapatnam, India;


 


“Software” means all computer software (including source and
object code) and other applications on all hardware (including the distributed
control system), firmware, development tools, algorithms, files, records,
technical drawings and related documentation, data and manuals, together with
proof of ownership;


 


“Tax” means: (a) any and all taxes, duties, imposts,
levies, premiums, impositions, transfer charges, cess, surcharge, charges in
the nature of tax and any fine, cost, penalty or interest


 


14

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


connected
therewith, including corporate tax, income tax, dividend distribution tax,
interest tax, withholding taxes, capital gains tax, value added tax, gift tax,
wealth tax, sales tax, service tax, stamp duty, registration fees, foreign
travel tax, octroi, turnover tax, excise duty, customs duty, import duty,
development cess, rates, property tax or other tax of whatever kind (including
any fee, assessment or other charges in the nature of or in lieu of any tax)
that is imposed by any Governmental Authority; (b) any interest, fines,
penalties or additions resulting from, attributable to, or incurred in
connection with any items described in this paragraph or any related contest or
dispute; and (c) any items described in this paragraph that are
attributable to another Person but that the Seller is liable to pay and/or
withhold by Law, by Contract or otherwise, whether or not disputed;


 


“Tax Act” means the (Indian) Income Tax Act, 1961;


 


“Tax Return” means any report, return, declaration, claim for
refund, or information return or statement related to Taxes, including any
schedule or attachment thereto, and including any amendment thereof;


 


“Trademarks” means all trade dress and trade names, logos,
trademarks and service marks and related registrations and applications,
including any intent to use applications, supplemental registrations and any
renewals or extensions, all other indicia of commercial source or origin and
all goodwill associated with any of the foregoing; and


 


“Transfer Taxes” means any and all Taxes relating to or
arising on the transfer of the Transferred Assets of the Business, including
stamp duty, registration charges, notarial fees and all applicable indirect
Taxes and related amounts (including any penalties, interest and additions to
Transfer Taxes).


 


1.2                                 Additional Defined Terms


 


For purposes of
this Agreement, the following terms have the meanings specified in the
indicated Clause of this Agreement:


 


	
  Defined
  Term

  	
   

  	
  Clause

  
	
  Accounting
  Firm

  	
   

  	
  3.2.4

  
	
  Acquired
  Business

  	
   

  	
  8.6.5

  
	
  Acquired
  Competing Business

  	
   

  	
  8.6.5

  
	
  Additional
  Due Diligence

  	
   

  	
  6.1.1

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  API
  Exclusivity Period

  	
   

  	
  8.20.1

  
	
  [                 *                 *             *            ]

  	
   

  	
  [***]

  
	
  [                 *                 *               *                 ]

  	
   

  	
  [***]

  
	
  [                 *                 *             *            ]

  	
   

  	
  [***]

  
	
  Assumed
  Liabilities

  	
   

  	
  2.3

  
	
  Balance
  Sheet

  	
   

  	
  9.4.1(a)

  
	
  Beta-Lactam
  API Business

  	
   

  	
  8.20.1

  
	
  Business
  Balance Sheet

  	
   

  	
  9.4.1(c)

  



 


15

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


	
  Business
  Employees

  	
   

  	
  9.17.1

  
	
  Business
  Employee Plan

  	
   

  	
  9.16.1

  
	
  Cash
  Consideration

  	
   

  	
  3.1

  
	
  Certain
  Nations

  	
   

  	
  9.21.4

  
	
  Claim
  Notice

  	
   

  	
  11.3.1

  
	
  Closing
  Date

  	
   

  	
  7.1

  
	
  Closing
  Net Working Capital Statement

  	
   

  	
  3.2.2

  
	
  Competing
  Acquiring Persons

  	
   

  	
  8.6.1

  
	
  Confidential
  Information

  	
   

  	
  13.1

  
	
  Controlling
  Party

  	
   

  	
  11.4.3

  
	
  Deductible

  	
   

  	
  11.6.1

  
	
  Deeds

  	
   

  	
  7.2.1(c)

  
	
  Dispute

  	
   

  	
  14.2.1

  
	
  Dispute
  Notice

  	
   

  	
  14.2.1

  
	
  Escrow
  Amount

  	
   

  	
  7.3

  
	
  Estimated
  Net Working Capital

  	
   

  	
  3.2.1

  
	
  Excluded
  Assets

  	
   

  	
  2.2

  
	
  Excluded
  Liabilities

  	
   

  	
  2.4

  
	
  Exclusivity
  Period

  	
   

  	
  8.19.1

  
	
  Field
  of Use

  	
   

  	
  8.15.1

  
	
  Final
  Statement of Closing Net Working Capital

  	
   

  	
  3.2.5

  
	
  Financial
  Statements

  	
   

  	
  9.4.1

  
	
  Goodwill

  	
   

  	
  2.1.18

  
	
  Gratuity
  Fund

  	
   

  	
  4.4.1(c)

  
	
  Improvements

  	
   

  	
  9.10.6

  
	
  Indebtedness
  Contracts

  	
   

  	
  9.14.1

  
	
  Indemnified
  Party

  	
   

  	
  11.3.1

  
	
  Indemnifying
  Party

  	
   

  	
  11.3.1

  
	
  Interim
  Balance Sheet

  	
   

  	
  9.4.1(b)

  
	
  Interim
  Business Balance Sheet

  	
   

  	
  9.4.1(d)

  
	
  Inventory

  	
   

  	
  2.1.1

  
	
  IP
  Assignment

  	
   

  	
  7.2.1(b)

  
	
  KRR
  

  	
   

  	
  Preamble

  
	
  Lease
  Deeds

  	
   

  	
  7.2.1(c)

  
	
  Material
  Contracts

  	
   

  	
  9.13.1

  
	
  Material
  Purchased Software

  	
   

  	
  9.12.1

  
	
  Mixed
  Account

  	
   

  	
  6.8.2

  
	
  Mixed
  Contract

  	
   

  	
  6.8.1

  
	
  NOC

  	
   

  	
  9.10.11

  
	
  Non-controlling
  Party

  	
   

  	
  11.4.3

  
	
  Objection

  	
   

  	
  3.2.3

  
	
  Objection
  Notice

  	
   

  	
  11.3.2(b)

  
	
  Owned
  Intellectual Property

  	
   

  	
  9.11.1

  
	
  Promoter
  Group

  	
   

  	
  Recital
  C

  
	
  Proposed
  Beta-Lactam API Transaction

  	
   

  	
  8.20.1

  
	
  Proposed
  Beta-Lactam API Purchase Consideration

  	
   

  	
  8.20.1

  



 


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confidential treatment request. This text has been separately filed with the
SEC.


 


	
  Proposed
  Beta-Lactam API Transaction Notice

  	
   

  	
  8.20.1

  
	
  Proposed Transaction

  	
   

  	
  8.19.1

  
	
  Proposed Transaction Notice

  	
   

  	
  8.19.1

  
	
  Provident
  Fund

  	
   

  	
  4.4.1(a)

  
	
  Purchase
  Price

  	
   

  	
  3.1

  
	
  Purchased
  Intellectual Property

  	
   

  	
  2.1.9

  
	
  Purchased
  Software

  	
   

  	
  2.1.11

  
	
  Purchaser

  	
   

  	
  Preamble

  
	
  Purchaser
  Competing Activities

  	
   

  	
  8.6.2

  
	
  Purchaser
  Indemnified Parties

  	
   

  	
  11.1

  
	
  Purchaser
  Restricted Period

  	
   

  	
  8.6.5

  
	
  Real
  Property Permits

  	
   

  	
  9.10.8

  
	
  Registered
  Owned Intellectual Property

  	
   

  	
  9.11.6

  
	
  Release

  	
   

  	
  5.1.10

  
	
  Representatives

  	
   

  	
  13.1

  
	
  Research
  and Development Employees

  	
   

  	
  8.21

  
	
  Response

  	
   

  	
  3.2.4

  
	
  Restricted
  Period

  	
   

  	
  8.6.1

  
	
  Returns

  	
   

  	
  8.10.1

  
	
  Seller

  	
   

  	
  Preamble

  
	
  Seller
  Competing Activities

  	
   

  	
  8.6.6

  
	
  Seller
  Disclosure Schedule

  	
   

  	
  9

  
	
  Seller
  Indemnified Parties

  	
   

  	
  11.2

  
	
  Special
  Claims

  	
   

  	
  11.4.2

  
	
  Subsequent
  Monthly Financial Statements

  	
   

  	
  6.11.1

  
	
  Superannuation
  Fund

  	
   

  	
  4.4.1(b)

  
	
  Third
  Party Claim

  	
   

  	
  11.4.1

  
	
  Transferred
  Assets of the Business

  	
   

  	
  2.1

  
	
  Transferred
  Employee

  	
   

  	
  4.1.4

  
	
  Transferred
  Employment Liabilities

  	
   

  	
  4.6.1

  
	
  Transition
  Services Agreement

  	
   

  	
  8.17

  
	
  Vaccine
  Business

  	
   

  	
  8.6.1

  
	
  Vizag
  Lease

  	
   

  	
  6.15

  



 


1.3                                 Interpretation


 


1.3.1                        The terms referred to in this Agreement
shall, unless defined otherwise or inconsistent with the context or meaning
thereof, bear the meaning ascribed to them under the relevant
statute/legislation.


 


1.3.2                        Reference to statutory provisions shall
be construed as meaning and including references also to any amendment or
re-enactment (whether before or after the date of this Agreement) for the time
being in force and to all statutory instruments or orders made pursuant to such
statutory provisions.


 


17






 










 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


1.3.3                        Any reference to a Contract or other
document as of a given date means the Contract or other document as amended,
supplemented and modified from time to time through such date.


 


1.3.4                        Any reference to a document in “Agreed Form” is to a document in a form
agreed between the Parties initialed for the purpose of identification by or on
behalf of each of them (in each case with such amendments as may be agreed by
or on behalf of the Parties).


 


1.3.5                        Words denoting the singular shall include
the plural and words denoting any gender shall include all genders.


 


1.3.6                        Headings, subheadings, titles, subtitles
to clauses, subclauses and paragraphs are for information only and shall not
form part of the operative provisions of this Agreement or the annexure hereto
and shall be ignored in construing the same.


 


1.3.7                        The terms “hereof,” “herein,”
and “herewith” and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules and Exhibits hereto) and
not to any particular provision of this Agreement, Clause, Schedule and Exhibit references
are to the Clauses, Schedules and Exhibits to this Agreement unless otherwise
specified.


 


1.3.8                        Unless otherwise specified in a
particular case, reference to days, months and years are to calendar days,
calendar months and calendar years, respectively.


 


1.3.9                        Unless otherwise specified, time periods
within or following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and including
the day on which the period ends and by extending the period to the next
Business Day if the last day of such period is not a Business Day; and whenever
any payment is to be made or action to be taken under this Agreement is
required to be made or taken on a day other than a Business Day, such payment
shall be made or action taken on the next Business Day.


 


1.3.10                  Words “directly
or indirectly” mean directly or
indirectly through one or more intermediary persons or through contractual or
other legal arrangements, and “direct or
indirect” have the correlative meanings.


 


1.3.11                  Any reference to “writing” shall include printing, typing,
lithography and other means of reproducing words in visible form but shall
exclude text messages via mobile
phones.


 


1.3.12                  The words “include” and “including”
are to be construed without limitation unless the context otherwise requires or
unless otherwise specified. The word “or” shall not be exclusive.


 


1.3.13                  Any use of “material adverse effect” without the use of initial capital
letters is an intentional use of such words by the Parties.


 


1.3.14                  No provisions shall be interpreted in
favour of, or against, any Party by reason of the extent to which such Party or
its counsel participated in the drafting hereof or by reason of the extent to
which any such provision is inconsistent with any prior draft hereof.


 


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[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


1.3.15                  If there is any conflict or inconsistency
between a term in the body of this Agreement and a term in any of the schedules
or any Ancillary Agreement, the term in the body of this Agreement shall take
precedence. References herein to this Agreement or any Ancillary Agreement
shall be deemed to refer to this Agreement or such Ancillary Agreement as of
the date of such agreement and as it may be amended thereafter, unless
otherwise specified.


 


1.3.16                  Wherever used herein, the words “Seller” and “Purchaser” include their respective Affiliates whenever the
context requires or to the extent applicable.


 


2                                         AGREEMENT TO SELL AND
PURCHASE TRANSFERRED ASSETS OF THE BUSINESS


 


2.1                                 Transfer of the Transferred Assets of the
Business


 


Subject to the
terms and conditions of this Agreement, at the Closing, the Seller shall sell,
convey, assign, transfer and deliver, or cause its Affiliates to sell, convey,
assign, transfer and deliver to, the Purchaser or one or more of its
Affiliates, free and clear of all Encumbrances (other than Permitted
Encumbrances), and the Purchaser or one or more of its Affiliates shall
purchase and acquire: (a) the Leased Business Real Property; and (b) all
of the assets, rights and properties of the Seller and its Affiliates, located
anywhere in the world (except for (i) those held by the Affiliates of the
Seller in the Excluded Countries, (ii) other than as set forth in Clause
2.1.7, those held by the Affiliates of the Seller in the United States, the
United Kingdom, South Africa, China and Japan and (iii) the contracts,
assets and properties related to the Business in India which are expressly
listed in Schedule 2.2.9), whether tangible or intangible, real,
personal or mixed, related to the Business (except as otherwise expressly set
forth below or otherwise in this Agreement or the Ancillary Agreements) ((a) and
(b), collectively, the “Transferred Assets of the
Business”),
including the following:


 


2.1.1                        (a) all inventories used in, held
for use in, or related to the Business, wherever located, including all
semi-finished and finished goods, work in process, raw materials, samples,
packaging materials and all other materials and supplies to be used in the
production of finished goods and (b) any Finished API (the “Inventory”);


 


2.1.2                        except as expressly set forth in Clause
2.2.3, all third party Accounts Receivable of the Business, 


 


 


[***]


 


 


 


2.1.3                        all rights in and to products under
research and development as part of, or contemplated to be a part of, the
Business;


 


2.1.4                        except as expressly set forth in Clause
2.2.2, all furniture, fixtures, office equipment, laboratory equipment, all
other moveable assets, properties, resources, facilities, utilities and
services, including machinery, equipment, systems, implements, apparatus,
instruments, mechanical and spare parts, tools, tooling, dyes, production
supplies, storage tanks, pipes and fittings, utilities, vehicles, utensils,
communication facilities and capital work-in-progress, training materials and
equipment, supplies, owned and leased


 


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[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


motor vehicles,
mobile phones and personal digital assistants used by the Transferred
Employees, and other tangible property of any kind located at the Leased
Business Real Property;


 


2.1.5                        all furniture, fixtures, office
equipment, laboratory equipment, all other moveable assets, properties,
resources, facilities, utilities and services, including machinery, equipment,
systems, implements, apparatus, instruments, mechanical and spare parts, tools,
tooling, dyes, production supplies, storage tanks, pipes and fittings,
utilities, vehicles, utensils. communication facilities and capital
work-in-progress, training materials and equipment, supplies, owned and leased
motor vehicles, mobile phones and personal digital assistants used by the
Transferred Employees, and other tangible property of any kind, in each case
that are not located at the Leased Business Real Property and are primarily
related to the Business;


 


2.1.6                        subject to Clause 6.8, and except
as set forth in Clause 2.2, all rights under all Contracts to the extent
used in the Business, including those listed on Schedule 2.1.6;


 


2.1.7                        except as otherwise expressly provided in
Clause 2.2.8 and Schedule 2.2.9, the Registrations to the
extent used in, or related to, the Business (including the Registrations held
by the Affiliates of Seller in the United States, the United Kingdom, South
Africa and, if applicable, Japan and China to the extent used in, or related
to, the Business) supported by and including: (a) the original documents
and all related data, records, and correspondence under the possession of the
Seller or its Affiliates (or that are accessible to the Seller or its
Affiliates using commercially reasonable efforts) evidencing the Registrations
issued to the Seller or its Affiliates by a Governmental Authority in any
country of the world, in each case to the extent assignable with or without the
Consent of the issuing Governmental Authority; and (b) all related
Registration applications, clinical research and trial agreements, data results
and records of clinical trials and marketing research, design history files,
technical files, drawings, manufacturing, packaging and labeling
specifications, validation documentation, packaging specifications, quality
control standards and other documentation, research tools, laboratory
notebooks, files and correspondence with regulatory agencies and quality
reports, and all relevant pricing information and correspondence with
Governmental Authorities with respect to such pricing matters;


 


2.1.8                        subject to Clause 8.14, all
product labeling, advertising, marketing and promotional materials and all
other printed or written materials used primarily in connection with, or
related primarily to, the Business;


 


2.1.9                        subject to Clause 8.14, all
Intellectual Property  that is used
primarily in connection with, or related primarily to, the Business and is
owned by or licensed to the Seller or its Affiliates at the Closing
(collectively, the “Purchased Intellectual
Property”), and all other intangible rights in the Business;


 


2.1.10                  the rights granted to Purchaser and its
Affiliates to the Seller Mixed-Use Intellectual Property pursuant to Clause
8.15;


 


20

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


2.1.11                  all Software owned, created, acquired,
licensed to or used primarily in the Business by the Seller or its Affiliates
at any time prior to and through the Closing (the “Purchased Software”);


 


2.1.12                  all Governmental Authorizations primarily
related to the Business or any Transferred Asset of the Business or required
for the ownership or use of any Transferred Asset of the Business or the
operation of the Business;


 


2.1.13                  all books, records, files, studies,
manuals, reports and other materials (in any form or medium) used in or related
to the Business, including all catalogues, price lists, mailing lists,
distribution lists, client and customer lists, referral sources, supplier and
vendor lists, purchase orders, sales and purchase invoices, correspondence,
clinical data and protocols, production data, purchasing materials and records,
research and development files, records, data books, Intellectual Property disclosures
and records, manufacturing and quality control records and procedures, product
shipping or storing requirements, service and warranty records, equipment logs,
operating guides and manuals, product specifications, product processes,
engineering specifications, financial and accounting records, litigation files,
personnel and employee benefits records to the extent transferable under
applicable Law, and copies of all other personnel records of the Transferred
Employees to the extent the Seller is legally permitted to provide copies of
such records to the Purchaser (provided that (i) if foregoing is related
to both the Business and the Other Businesses, the Seller shall be entitled to
maintain copies of such materials or (ii) if the foregoing is solely
related to the Business, the Seller may request to maintain copies of such
materials, such request not to be unreasonably denied by the Purchaser);


 


2.1.14                  all claims, rights, credits, causes of
actions, defenses and rights of set-off of any kind (including
the right to sue for past, present or future infringement, misappropriation or
dilution of any Purchased Intellectual Property or, to the extent related to the Business, the
Seller Mixed-Use Intellectual Property), in each case to the extent arising from,
or related to, the Business or any of the Transferred Assets of the Business or
Assumed Liabilities, in each case, whether accruing before or after the
Closing, and including all attorney work-product protections, attorney-client
privileges and other legal protections and privileges to which the Seller or
its Affiliates may be entitled in connection with the Business or any of the
Transferred Assets of the Business or Assumed Liabilities that are not excluded
under Clause 2.2.14 or Clause 2.2.15;


 


2.1.15                  all claims or benefits in, to or under
any express or implied warranties from suppliers of goods or services relating
to Inventory sold or delivered to the Seller or any of its Affiliates prior to
the Closing;


 


2.1.16                  copies of Tax Returns; provided, however,
that the Seller may redact any information to the extent used in, or related
to, the Excluded Assets or the Other Businesses from Tax Returns conveyed
pursuant to this Clause 2.1.16; provided, further,
that such redaction shall not impair any information related to the Business
contained in such Tax Returns;


 


2.1.17                  all rights relating to deposits and
prepaid expenses of the Business, claims for refunds and rights of offset of
the Business that are not excluded under Clause 2.2.14 or Clause 2.2.15;


 


21

















 


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[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


2.1.18                  the goodwill of the Seller and its
Affiliates associated with the Business and the Transferred Assets of the
Business (the “Goodwill”); and


 


2.1.19                  all rights of the Purchaser and its
Affiliates arising under this Agreement, the Ancillary Agreements or from the
consummation of the transactions contemplated hereby or thereby.


 


Notwithstanding
the foregoing, the transfer of the Transferred Assets of the Business as a
going concern on a slump sale basis pursuant to this Agreement does not include
the assumption of any Liability related to the Transferred Assets of the
Business and/or the Business unless the Purchaser or one or more of its
Affiliates expressly assumes that Liability pursuant to Clause 2.3.


 


2.2                                 Excluded Assets


 


Notwithstanding
anything to the contrary in Clause 2.1 or elsewhere in this Agreement,
the following assets of the Seller (collectively, the “Excluded
Assets”) are excluded from the Transferred Assets of the Business,
and are to be retained by the Seller as of the Closing:


 


2.2.1                        all cash, cash equivalents and liquid
investments of the Seller and its Affiliates;


 


2.2.2                        all furniture, fixtures, office
equipment, laboratory equipment, all other moveable assets, properties,
resources, facilities, utilities and services, including machinery, equipment,
systems, implements, apparatus, instruments, mechanical and spare parts, tools,
tooling, dyes, production supplies, storage tanks, pipes and fittings,
utilities, vehicles, utensils, communication facilities and capital
work-in-progress, training materials and equipment, supplies, owned and leased
motor vehicles, mobile phones and personal digital assistants, and other
tangible property of any kind which are located at the Leased Business Real
Property and could be used solely for research and development of oral pharmaceutical
products;


 


2.2.3                        


 


 


 


[***]


 


 


 


 


 


2.2.4                        all intercompany Accounts Receivable;


 


2.2.5                        the Corporate Name;


 


2.2.6                        except for the Leased Business Real
Property, any Real Property owned or leased or subleased by the Seller or its
Affiliates, as tenant;


 


2.2.7                        all raw materials and work in process
used for the manufacture of Finished API for use in the manufacture of generic
injectable pharmaceutical products;


 


22

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


2.2.8                        any Registrations solely related to the
selling, marketing or distribution of the products of the Business in the Excluded
Countries;


 


2.2.9                        those Contracts, assets, rights and
properties related to the selling, marketing or distribution of the products of
the Business in India expressly set forth on Schedule 2.2.9;


 


2.2.10                  other than as set forth in Clause
2.1.7, those assets and properties held by the Affiliates of the Seller in
the United States, the United Kingdom, South Africa, China and Japan;


 


2.2.11                  original copies of all minute books,
records, stock ledgers, Tax records and other materials that the Seller is
required by Law to retain;


 


2.2.12                  the shares of the share capital stock of
the Seller or any of its Affiliates held in treasury;


 


2.2.13                  all certificates for insurance, binders
for insurance policies and insurance, and claims and rights thereunder and
proceeds thereof;


 


2.2.14                  all claims for refund of Taxes and other
governmental charges of whatever nature arising out of the Seller’s operation
of the Business or ownership of the Transferred Assets of the Business prior to
the Closing;


 


2.2.15                  all rights, title and interest of the
Seller and its Affiliates to assets used in connection with the Other
Businesses, except to the extent that such assets are included in the
Transferred Assets of the Business;


 


2.2.16                  all intercompany Contracts between the
Seller and any of its Affiliates or between one Affiliate of the Seller and
another Affiliate of the Seller;


 


2.2.17                  all claims, rights, credits, causes of
actions, defenses and rights of set-off of any kind, in each case to the extent arising from,
or related to, the Excluded Assets or the Excluded Liabilities before or after
the Closing, and including all attorney work-product protections,
attorney-client privileges and other legal protections and privileges to which
the Seller or its Affiliates may be entitled in connection with the Excluded
Assets or the Excluded Liabilities; and


 


2.2.18                  all rights of the Seller and its
Affiliates arising under this Agreement, the Ancillary Agreements or from the
consummation of the transactions contemplated hereby or thereby.


 


2.3                                 Assumed Liabilities


 


Subject to the
terms and conditions of this Agreement, at the Closing, the Purchaser shall
assume and pay or perform when due only the following Liabilities to the extent
relating to the Business (collectively, the “Assumed
Liabilities”):


 


2.3.1                        all trade accounts payable to third party
creditors of the Business for goods and services purchased, ordered or received
by the Business and which are reflected in line items on the Interim Business
Balance Sheet or incurred by the Seller in the Ordinary Course of Business and
in accordance with the provisions of this Agreement, including Clause 6.2,



 


23

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a confidential
treatment request. This text has been separately filed with the SEC.


 


between the
date of the Interim Business Balance Sheet and the Closing (other than trade
accounts payable to any shareholder or any Affiliates of the Seller), in each case that are not delinquent as
of the Closing;


 


2.3.2                        all Liabilities of the Seller or its
Affiliates arising after the Closing under the Contracts included in the
Transferred Assets of the Business or that are entered into by the Seller after
the date of this Agreement in accordance with Clause 6.2;


 


2.3.3                        all Liabilities assumed by the Purchaser
under Clause 6.8 relating to Mixed Contracts and Mixed Accounts;


 


2.3.4                        the Transferred Employment Liabilities;


 


2.3.5                        all Liabilities arising out of, relating
to or incurred in connection with the operation of the Business or the
ownership of the Transferred Assets of the Business after the Closing;


 


2.3.6                        all Liabilities described on Schedule
2.3.6;


 


2.3.7                        Liabilities arising from product
liability, warranty or similar claims by any Person in connection with any
finished product of the Business manufactured after the Closing; and


 


2.3.8                        all Liabilities arising out of, relating
to, or incurred in connection with the Pip-Tazo Litigation before, on or after
the Closing (other than any attorney fees and other costs and expenses of the
Seller arising on or before the Closing).


 


2.4                                 Excluded Liabilities


 


Notwithstanding
any other provision of this Agreement or any other writing to the contrary, and
regardless of any information disclosed to the Purchaser, the Purchaser does
not assume and has no responsibility for any Liabilities of the Seller or any
of its Affiliates (whether or not related to the Business) other than the
Assumed Liabilities specifically listed in Clause 2.3 (such
unassumed Liabilities, the “Excluded Liabilities”).
Without limiting the preceding sentence, the following is a non-exclusive list
of Excluded Liabilities that the Purchaser does not assume and that the Seller
and its Affiliates shall remain bound by and liable for, and shall pay,
discharge or perform when due:


 


2.4.1                        all Liabilities arising out of or
relating to any Excluded Asset;


 


2.4.2                        all Liabilities under any Contract not
assumed by the Purchaser under Clause 2.1.6, including any
Liability arising out of or relating to the Seller’s or its Affiliates’ credit
facilities, the Indebtedness Contracts or any security interest related
thereto;


 


2.4.3                        except for Liabilities arising from
warranties provided by the Purchaser or arising as a result of any mishandling
of product of the Business after such product has been accepted for delivery by
the Purchaser, all Liabilities arising from product liability, warranty or
similar claims by any Person in connection with any finished product of the
Business manufactured on or prior to the Closing;


 


24

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the SEC.


 


2.4.4                        all Liabilities arising out of or
relating to Indebtedness incurred by the Seller or its Affiliates;


 


2.4.5                        except as provided in Clause 8.1.1
and except for any apportionment provided for in this Agreement, all
Liabilities for Taxes arising as a result of the operation of the Business or
ownership of the Transferred Assets of the Business on or prior to the Closing,
including any Taxes that arise as a result of the sale of the Transferred
Assets of the Business pursuant to this Agreement and any deferred Taxes of any
nature;


 


2.4.6                        all Liabilities arising from or under any
Environmental Law or Occupational Safety and Health Law based upon the
operation of, relating to, or arising out of acts, omissions or events
occurring in connection with, the Business on or prior to the Closing or the
Seller’s or its Affiliates’ leasing, ownership, occupation or operation of any
Real Property;


 


2.4.7                        all Liabilities arising under claims by
or with respect to employees of the Seller or its Affiliates (whether current
employees or related to the former employment by the Seller or its Affiliates)
relating in any way to wages, salaries, remuneration, compensation, allowances,
bonuses, ex-gratia payments, reimbursements, service benefits, benefits
(including workers’ compensation and unemployment benefits) and all other
entitlements and all Tax deductions and other contributions relating to the
foregoing, termination or continuation of its employment, or lack or delay of
any notice relating to its employment, in all cases relating to the period on
or prior to the Closing, except to the extent of any Transferred Employment
Liabilities which are being deducted from the Cash Consideration under Clause 3.1
hereof;


 


2.4.8                        all Liabilities arising under any claim
by or with respect to any employees of the Seller or its Affiliates for any
severance, redundancy, retrenchment or similar termination payments or benefits
(including payments for or in respect to the resignation of a Business Employee
on or prior to the Closing) that may become payable to any employees of the
Seller or its Affiliates in connection with the transactions contemplated by
this Agreement and the Ancillary Agreements, in all cases relating to the
period on or prior to the Closing;


 


2.4.9                        all Liabilities arising under or in
connection with the Employee Plans (including the Business Employee Plans), or
any termination, continuation, amendment or other acts or omissions in
connection with the Employee Plans (including the Business Employee Plans), in
all cases relating to the period on or prior to the Closing, except to the
extent of any Transferred Employment Liabilities which are being deducted from
the Cash Consideration under Clause 3.1 hereof;


 


2.4.10                  all Liabilities arising under claims by
or with respect to any officer, director, employee or agent of the Seller and
its Affiliates for indemnification, reimbursement or advancement of amounts
during their term of office, directorship, employment or agency with the Seller
or its Affiliates, except to the extent of any Transferred Employment
Liabilities which are being deducted from the Cash Consideration under Clause 3.1
hereof;


 


2.4.11                  all Liabilities arising from any failure
to comply with any fraudulent transfer Law in connection with this Agreement or
any Ancillary Agreement (whether compliance would 


 


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have been
required by the Seller, the Purchaser or some or all of them, by applicable
Law);


 


2.4.12                  all Liabilities relating to any
negotiations, agreements or other transactions, if any, by the Seller and its
Affiliates with any third party that relate to the acquisition of the Seller
and its Affiliates or any of its respective assets or businesses or any
termination of related negotiations or arrangements;


 


2.4.13                  all professional, financial advisory,
broker, finder or other fees of any kind incurred by the Seller and its
Affiliates;


 


2.4.14                  other than any Liability assumed by the
Purchaser pursuant to Clause 2.3.6, all Liabilities of the Seller and
its Affiliates arising out of or incurred in connection with this Agreement,
any Ancillary Agreements, the transactions contemplated hereby or thereby, or
any other document executed in connection with the transactions contemplated
hereby or thereby, including disclosures to or negotiations with creditors or
shareholders by Seller and its Affiliates, solicitations of proxies or written
Consents from any Persons, or other legal obligations of the Seller and its
Affiliates;


 


2.4.15                  all Liabilities of the Seller and its
Affiliates arising out of acts, omissions or events, or relating to, or occurring
in connection with, the Other Businesses;


 


2.4.16                  all Liabilities of the Seller and its
Affiliates with respect to the corporate services or activities of the Seller
and its Affiliates used by or made available to the Business; and


 


2.4.17                  all other Liabilities arising out of
acts, omissions or events, or relating to, or occurring in connection with, the
operation of the Business or the Transferred Assets of the Business or
otherwise on or prior to the completion of the Closing, except as expressly provided
for under Clause 2.3 hereof.


 


3                                         PURCHASE PRICE


 


3.1                                 Consideration


 


The cash
consideration for the Transferred Assets of the Business, exclusive of all
applicable Transfer Taxes resulting from the transfer of the Transferred Assets
of the Business, is USD 400,000,000 (United States Dollar Four Hundred Million)
(the “Cash Consideration”), subject to
adjustment in accordance with Clause 3.2. At the Closing, the
Purchaser shall assume the Assumed Liabilities. The Cash Consideration as
adjusted pursuant to Clause 3.2, Clause 6.15,  Clause 8.10
and Clause 11.7, and the Assumed Liabilities are collectively
referred to herein as the “Purchase Price.”


 


3.2                                 Adjustment of Cash Consideration


 


3.2.1                        At
least 5 (five) Business Days but no more than 10 (ten) days prior to the
Closing Date, the Seller shall provide to the Purchaser a certificate setting
forth a good faith estimate as of the close of business on the day
immediately prior to the Closing Date of the Closing Net Working Capital (the “Estimated Net Working Capital”) showing the
Seller’s calculation in reasonable detail, which calculation of the Estimated
Net Working Capital shall be in accordance with GAAP applied on a basis
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Statements and shall include only those Accounts
Receivable included in Clause 2.1.2 that have remained outstanding as of
the Closing Date for less than 180 (one hundred eighty days).  If the Estimated Net Working
Capital is greater than the Benchmark Net Working Capital, the difference
between the Estimated Net Working Capital and the Benchmark Net Working Capital
shall be added to the Cash Consideration paid at the Closing.  If the Benchmark Net Working
Capital is greater than the Estimated Net Working Capital, the difference
between the Benchmark Net Working Capital and the Estimated Net Working Capital
shall be deducted from the Cash Consideration paid at the Closing.


 


3.2.2                        Not
earlier than 185 (one hundred eighty five) days and no later than 210 (two
hundred ten) days after the Closing Date, the Purchaser shall prepare, in cooperation with the Seller and its
representatives, and shall deliver to the Seller a calculation of the Closing
Net Working Capital together with reasonably supporting documentation (the “Closing Net Working Capital Statement”).
The Closing Net Working Capital Statement shall be prepared on a combined basis
in accordance with GAAP applied on a basis consistent with the
Financial Statements.  The Closing Net Working Capital Statement
shall include only:


 


(a) as current assets: (i) except for any [        *  
     *  
     *  
     ] all other third party Accounts Receivable which
are collected by the Purchaser within 180 (one hundred eighty) days following
the Closing Date (it being agreed and understood that the Purchaser shall
deliver to the Seller the amount of any proceeds from any such other third
party Accounts Receivable that are collected by the Purchaser after 180 (one
hundred eighty) days following the Closing Date and not in the calculation
contained in the Final Statement of Closing Net Working Capital), (ii) Inventory and (iii) deposits and prepaid expenses of the
Business (other than for Taxes or under insurance policies); and


 


(b) as current liabilities, trade accounts payable (other than trade
accounts payable to any shareholder or any Affiliates of the Seller) that are
not delinquent as of the Closing.


 


3.2.3                        The Seller shall complete its review of
the Closing Net Working Capital Statement within 30 (thirty) days of the Seller’s
receipt thereof. In connection with such review, the Seller and its accountants
shall be provided with full access to the working papers and other records of
the Purchaser and its accountants used in the preparation of the Closing Net
Working Capital Statement; provided, however, that the
Seller and its accountants have signed any customary release letters requested
in connection therewith. If the Seller determines that the Closing Net Working
Capital Statement has not been prepared on a basis consistent with the
requirements of Clause 3.2.2, the Seller may, on or before the last
day of such 30 (thirty) day period, inform the Purchaser in writing (the “Objection”), setting forth a description
containing reasonable detail of the basis of the Seller’s objection, the
adjustments to the Closing Net Working Capital Statement which the Seller
believes should be made, and the Seller’s calculation of the Closing Net
Working Capital. The Seller shall be deemed to have accepted any items not
specifically disputed in the Objection. Failure by the Seller to deliver an
Objection in accordance with this Clause 3.2.3 to the Purchaser
shall constitute acceptance and approval by the Seller of the Purchaser’s
calculation of the Closing Net Working Capital.


 


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3.2.4        If the Purchaser receives an Objection
from the Seller, it shall have 30 (thirty) days following receipt to review and
respond in writing to such Objection (the “Response”).
During the 20 (twenty) days immediately following a delivery of the Purchaser’s
Response, the Seller and the Purchaser shall seek in good faith to resolve in
writing any differences which they may have with respect to any matter
specified in the Seller’s Objection. If the Seller and the Purchaser are unable
to resolve all of such differences within such 20 (twenty) day period, either
or both Parties may refer the remaining differences to KPMG LLP  or another internationally or nationally
recognized firm of independent public accountants as to which the Seller and
the Purchaser mutually agree in writing (the “Accounting
Firm”) for review and resolution of all matters which remain in
dispute and which were indicated in the Seller’s Objection. The Accounting Firm
shall act as an expert in accounting and not as an arbitrator and shall
determine on a basis consistent with the requirements set forth in Clause 3.2.2,
and only with respect to the specific remaining accounting related differences
so submitted, whether and to what extent, if any, the Closing Net Working
Capital Statement requires any adjustments. The Seller and the Purchaser shall
request the Accounting Firm to use its reasonable best efforts to render its
determination within 30 (thirty) days. The Accounting Firm’s determination
shall be conclusive and binding upon the Seller and the Purchaser. Subject to
the execution of a confidentiality agreement by the Accounting Firm on terms
and conditions reasonably acceptable to the Parties, the Seller and the
Purchaser shall make available to the Accounting Firm all relevant personnel,
books and records, any working papers (including those of the Parties’
respective accountants) and supporting documentation relating to the Closing
Net Working Capital Statement and all other items and support reasonably
requested by the Accounting Firm. The fees and expenses of the Accounting Firm
shall be shared equally between the Seller and the Purchaser.


 


3.2.5        The “Final
Statement of Closing Net Working Capital” shall be the calculation
of the Closing Net Working Capital contained: (a) in the Closing Net
Working Capital Statement in the event that, (i) no Objection is delivered
by the Seller to the Purchaser within the 30 (thirty) day period specified in Clause 3.2.3,
or (ii) the Seller and the Purchaser so agree, (b) in the Closing Net
Working Capital Statement, as adjusted in accordance with the Seller’s
Objection, in the event that (i) the Purchaser does not deliver a Response
to the Seller’s Objection during the 30 (thirty) day period specified in Clause 3.2.4
following receipt by the Purchaser of the Seller Objection, or (ii) the
Seller and the Purchaser so agree, or (c) in the Closing Net Working
Capital Statement, as adjusted pursuant to the mutual agreement of the
Purchaser and the Seller, or as adjusted by the Accounting Firm, together with
any other modifications to the Closing Net Working Capital Statement mutually
agreed upon by the Purchaser and the Seller.


 


3.2.6        If the calculation of the amount of the
Closing Net Working Capital contained in the Final Statement of Closing Net
Working Capital is less than the Estimated Net Working Capital, the Seller
shall pay to the Purchaser an amount in cash in Rupees equal to the amount of
such deficiency plus interest on the amount paid computed at the Prime Rate for
the period from the Closing Date to the date of such payment. If, by contrast,
the calculation of the Closing Net Working Capital contained in the Final
Statement of Closing Net Working Capital is greater than the Estimated Net
Working Capital, the Purchaser shall pay to the Seller an amount in cash in
Rupees equal to the amount of such deficiency plus interest on the amount paid
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period from the
Closing Date to the date of such payment. All payments made pursuant to this Clause 3.2.6
shall be made to the applicable Party by means of a wire transfer of
immediately available funds in Rupees within 3 (three) Business Days after the
ultimate determination of the Final Statement of Closing Net Working Capital as
provided in this Clause 3.2.


 


3.2.7        The Parties agree to treat any amounts
payable pursuant to this Section 3.2 as an adjustment to the Cash
Consideration.


 


3.3           Tax Treatment of Allocation of Cash
Consideration


 


The Seller and
the Purchaser shall sign and submit all necessary forms to report the
transactions contemplated by this Agreement for federal, national, regional,
state, local, county, city, municipal, town, village, district, foreign or
other income Tax purposes consistent with the allocation of the Cash
Consideration delivered by the Purchaser to the Seller between the Effective
Date and the Closing (which allocation shall be attached as Schedule 3.3),
any allocation schedule set forth in an Ancillary Agreement and any adjustments
to such amounts or allocation schedules following the Closing (including
as required by Clause 3.2) and shall not take a position for Tax
purposes inconsistent therewith. The Parties shall treat the transactions
contemplated by this Agreement in all filings with Governmental Authorities for
all Tax purposes (including consumption Taxes) consistent with the amount of
the Cash Consideration to be paid to the Seller in accordance with Clause 7.2.2,
any allocation schedule set forth in an Ancillary Agreement and this Clause 3.3.


 


4              EMPLOYEES AND
EMPLOYEE BENEFIT FUNDS


 


4.1           Transfer of Employment


 


4.1.1        Prior to and on the Closing Date, as
periodically requested by the Purchaser, the Seller shall provide an updated
list of the Business Employees and contract labourers set forth on Clause 9.17.1(a) of
the Seller Disclosure Schedule. The list of Business Employees and contract
labourers set forth on Clause 9.17.1(a) of the Seller Disclosure
Schedule shall be updated prior to the Closing Date to additionally include or
delete any Persons as may be mutually agreed in writing by the Seller and the
Purchaser.


 


4.1.2        No later than thirty (30) days prior to
the estimated date for the Closing, the Purchaser shall make an offer of
employment effective as of the Closing Date to each Business Employee, on terms
and conditions that are no less favourable on an aggregate basis to those paid
or provided to each such Business Employee prior to the Closing.


 


4.1.3        The Seller shall use all commercially
reasonable efforts to cause all Business Employees to accept employment with
the Purchaser. Subject to applicable Law, the Purchaser shall have reasonable
access to the facilities and personnel records (to the extent available)
(including employee name, date of birth, hire date, compensation (base, bonus,
incentives and allowances), employment and compensation history, participation
status in benefit plans, dependents covered, beneficiaries, performance appraisals,
disciplinary actions, grievances and medical records occupational health and
safety records and any other employee specific information as would be needed
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payroll,
employee benefits, polices and other programs) of the Seller. Access shall be
provided by the Seller as may be reasonably requested by the Purchaser.


 


4.1.4        At the Closing, the Purchaser shall
provide the Seller with a list of the Business Employees to whom it has made an
offer of employment who has accepted such offer of employment effective as of the
Closing Date (each such Business Employee, a “Transferred
Employee” and collectively, the “Transferred
Employees”). On the Closing Date the Seller shall notify the
Transferred Employees of the termination of their employment with the Seller,
such termination effective immediately prior to the Closing.


 


4.2           Prior Service


 


To the extent
required by applicable Law, the Transferred Employees shall be deemed to have
been in the employment of the Purchaser from the date of their commencement of
employment with the Seller.


 


4.3           Accrued Vacation


 


The Seller
shall pay out to each Transferred Employee on the Closing Date, at the
Purchaser’s election, all or part of the accrued and unused vacation
entitlement and any personal and sickness days accrued by such Transferred
Employee as of the Closing Date; provided, however, that
if any Transferred Employee elects not to accept any such amounts, then the
Purchaser shall credit each Transferred Employee with the accrued and unused
vacation entitlement and any personal and sick days accrued by such Transferred
Employee as of the Closing Date and the amount of such Liability shall be
included as a Transferred Employment Liability.


 


4.4           Benefit Plans


 


4.4.1        The Seller has established the following
funds to provide for the payment of retirement benefits and gratuity benefits
to the Business Employees:


 


4.4.1(a)           a contributory provident fund, in
accordance with applicable Laws to provide for the payment of provident fund
benefits to the Business Employees and other employees (the “Provident Fund”);


 


4.4.1(b)           a superannuation fund pursuant to the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 to provide
for the payment of superannuation benefits to its Business Employees and other
employees who are covered under such scheme (the “Superannuation Fund”); and


 


4.4.1(c)           a gratuity fund pursuant to the Payment
of Gratuity Act,
1972, for the payment of gratuity benefits to its Business Employees and other
employees (the “Gratuity Fund”).


 


4.4.2        Prior to the Closing Date, the Seller
shall make all contributions required to be made to any Business Employee Plan
by applicable Law and the terms of such Business Employee Plan, and shall pay
all premiums due or payable with respect to all Business Employee Plans so as
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Closing and no
payment, contribution or premium is required to be paid with respect to the
said Business Employee Plans for the period prior to the Closing.


 


4.4.3        The Seller and its Affiliates shall
provide the statutory auditor of the Seller with all reasonable documentation
and information requested by the statutory auditor in the preparation of the
certificate required pursuant to Clause 7.2.1(k). The Purchaser or
any representative or professional advisor of the Purchaser may, at the
Purchaser’s sole cost and expense and during normal working hours, examine the
work papers and the methodology employed by the statutory auditor of the Seller
with respect to the preparation of such certificate.


 


4.4.4        The Seller and its Affiliates shall
provide the actuary selected by the Purchaser with all reasonable documentation
and information requested by such actuary in the preparation of the actuarial
valuation report required pursuant to Clause 7.2.1(l).


 


4.5           Purchaser Plans


 


4.5.1        The Purchaser shall, as soon as
reasonably practicable after the Closing Date, at its own cost, establish its
own provident fund. The Purchaser shall also, as soon as reasonably practicable
following the Closing Date, at its own cost, obtain a new policy from an
insurer determined by the Purchaser or its Affiliates for extending
superannuation benefits to the Transferred Employees for the period on and from
the Closing Date. Until the establishment of such funds, on and following the
Closing Date:


 


4.5.1(a)           the Purchaser shall pay or cause to be
paid all contributions due and payable on and following the Closing Date in
respect of the Provident Fund for the Transferred Employees in accordance with
the terms of the Provident Fund until the same are transferred to the provident
fund of the Purchaser, provided the same is not prohibited by Law;


 


4.5.1(b)           if the Purchaser is prohibited by Law
from making contributions as set forth in Clause 4.5.1, the Seller
shall, prior to the Closing Date, advance an amount equal to the contributions
payable to the Provident Fund in respect of the Transferred Employees, for a
period of 4 (four) months following the Closing Date, as if the Seller
continued to employ the Transferred Employees for such period, provided the same
is not prohibited by Law. The Purchaser shall reimburse the Seller in respect
of such advances within a period of 14 (fourteen) days from the date of the
Seller making such advances; and


 


4.5.1(c)           the Purchaser shall, as soon as
practicable following the Closing Date, at its own cost, obtain a new policy
from an insurer selected by the Purchaser or its Affiliates for extending
superannuation benefits to the Transferred Employees for the period on and from
the Closing Date.


 


4.5.2        Upon the establishment of the funds as
provided in Clause 4.5.1, the Seller shall take all steps as may be
necessary to transfer the balances, including interest under each of the
Business Employee Plans in respect of the Transferred Employees (which
accumulations are held by the trustees of each of the Business Employee Plans)
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established by
the Purchaser. The Seller shall provide to the Purchaser all necessary
documentation and other information providing the amounts transferred under
each such fund for each Transferred Employee.


 


4.6           Closing Transferred Employee Liability


 


4.6.1        At Closing, the Purchaser shall assume
and pay or perform when due the Liabilities related to (a) the leave
travel assistance, medical reimbursement and accrued bonus, solely as they
relate to the Transferred Employees, in the amount for each such Liability
included in the certificate of statutory auditor or the actuarial valuation
report, as applicable, to be delivered to the Purchaser pursuant to Clause 7.2.1(l) and
(b) to the extent any Transferred Employee does not accept encashment for
accrued and unused vacation entitlement and any personal and sick days accrued
by such Transferred Employee as of the Closing Date, accrued and unused
vacation entitlement and any personal and sick days accrued by such Transferred
Employee as of the Closing Date (collectively, (a) and (b), the “Transferred Employment Liabilities”). The
Seller hereby agrees and acknowledges that the Purchaser shall have the right
to deduct and offset at the Closing the amount of the Transferred Employment
Liabilities from the Cash Consideration.


 


5              CONDITIONS PRECEDENT


 


5.1           Conditions to the Obligation of the
Purchaser


 


The obligations
of the Purchaser to consummate the transactions contemplated by this Agreement
are subject to the satisfaction, on or before the Closing Date, of each of the
following conditions (any of which may be waived in writing by the Purchaser,
in whole or in part):


 


5.1.1        Accuracy of Representations and
Warranties.
Each of the representations and warranties of Seller contained in Clause 9
that are qualified by materiality shall be true and correct in all respects,
and the representations and warranties contained in Clause 9 that
are not so qualified shall be true and correct in all material respects, in
each case as of the Effective Date and as if made as of the Closing Date;


 


5.1.2        Performance of Covenants. All of the covenants and obligations
that the Seller or its Affiliates is required to perform or comply with under
this Agreement on or before the Closing Date must have been duly performed and
complied with in all material respects;


 


5.1.3        Governmental Authorizations. Each of the Governmental Authorizations
listed in Schedule 5.1.3 must have been obtained and must be in full
force and effect;


 


5.1.4        Registrations. All of the Registrations listed on Schedule
5.1.4 must have been either: (a) transferred to the Purchaser or its
nominee in accordance with applicable Law on their existing terms and
conditions; or (b) issued to the Purchaser or its nominee in a form
identical to that upon which they had been issued to the Seller.


 


5.1.5        Consent Under Competition / Investment
Laws.
All applicable waiting periods (and any extensions thereof) under the HSR Act
and under the applicable Competition/Investment Laws of the jurisdictions set
forth on Schedule 5.1.5 (in accordance with the provisions


 


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of Clause
6.3.2) must have expired or terminated, and, to the extent the Parties are
required to make a filing under the Competition / Investment Laws of India in
accordance with the provisions of Clause 6.3.3, all applicable
waiting periods (and any extensions thereof) under such Competition /
Investment Laws must have expired or otherwise been terminated;


 


5.1.6        Consents. Each of the Consents listed in Schedule
5.1.6 must have been obtained and must be in full force and effect;


 


5.1.7        Shareholder Approval. The Seller shall have secured the
approval of the shareholders of the Seller pursuant to Section 293(1)(a) of
the Act and all other applicable Laws to effect the transactions contemplated
by this Agreement and any applicable Ancillary Agreements to which it is a
party (with the notice to the shareholders of the Seller seeking such approval
being in an Agreed Form) and such approvals must be in full force and effect;


 


5.1.8        No Action. There must not be in effect, published,
introduced or otherwise formally proposed any Law or Judgment, and there must
not have been commenced or threatened any Proceeding, that in any case could: (a) prevent,
make illegal or restrain the consummation of, or otherwise materially alter,
any of the transactions contemplated by this Agreement or any Ancillary
Agreement; or (b) cause any of the transactions contemplated by this
Agreement or any Ancillary Agreement to be rescinded following consummation of
the same; or, as to any Law, prevent, make illegal, restrict, impair or
otherwise materially alter the Purchaser’s ability to operate the Business or
own the Transferred Assets of the Business following the Closing substantially
as the Business has been operated and the assets had been owned prior to the
Closing;


 


5.1.9        No Material Adverse Effect. Since the date of this Agreement, there
must not have been any Material Adverse Effect;


 


5.1.10      Lender Releases and Consents. Each Person that holds an Encumbrance
(other than Permitted Encumbrances) with respect to any Transferred Asset of
the Business must have delivered to the Purchaser a release letter in form and
substance satisfactory to the Purchaser, providing for the full release of any
such Encumbrance (each, a “Release”)
and such Releases must be in full force and effect. Each Person that is a party
to an Indebtedness Contract that contains a provision pursuant to which the
consummation of the transaction contemplated by this Agreement and the
Ancillary Agreement would result in a default or an event of default under such
Indebtedness Contract without the prior consent of such Person must have
delivered to the Purchaser a Consent in form and substance reasonably
satisfactory to the Purchaser, providing for the Consent of such Person to the
transactions contemplated by this Agreement and the Ancillary Agreement, and
such Consents must be in full force and effect;


 


5.1.11      Consent of [      *      *      *      ]. The Seller shall have secured the
consent of (a) at least [          *       
     *          *      ]
of the [      *      *      *      ]
and (b) all of the [   *   *   *   ]
in each case, to the termination of their [   *   *   *   ]
with the Seller and their [   *   *   *   ]
by the Purchaser on the terms and conditions in accordance with Clause [***]
of this Agreement;


 


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5.1.12      Transaction Documents. The Seller must have delivered or
caused to be delivered each other document that Clause 7.2.1
requires it to deliver, each in form and substance satisfactory to the
Purchaser and each such document must be in full force and effect.


 


5.2           Conditions to the Obligation of the
Seller


 


The obligations
of the Seller to consummate the transactions contemplated by this Agreement are
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions (any of which may be waived in writing by the Seller, in
whole or in part):


 


5.2.1        Accuracy of Representations and
Warranties.
Each of the representations and warranties of the Purchaser contained in Clause 10
that are qualified by materiality shall be true and correct in all respects,
and the representations and warranties contained in Clause 10 that
are not so qualified shall be true and correct in all material respects, in
each case as of the date of this Agreement and as if made as of the Closing
Date;


 


5.2.2        Performance of Covenants. All of the covenants and obligations
that the Purchaser are required to perform or comply with under this Agreement
on or before the Closing Date must have been duly performed and complied with
in all material respects;


 


5.2.3        Consent under Competition / Investment
Laws.
All applicable waiting periods (and any extensions thereof) under the HSR Act
and under the applicable Competition/Investment Laws of the jurisdictions set
forth on Schedule 5.1.5 (in accordance with the provisions of Clause
6.3.2) must have expired or terminated, and, to the extent the Parties are
required to make a filing under the Competition / Investment Laws of India in
accordance with the provisions of Clause 6.3.3, all applicable
waiting periods (and any extensions thereof) under such Competition/Investment
Laws must have expired or otherwise been terminated;


 


5.2.4        No Action. There must not be in effect any Law or
Judgment that would prohibit or make illegal the consummation of any of the
transactions contemplated by this Agreement;


 


5.2.5        Shareholder Approval. 
The Seller shall have secured the approval of the shareholders of the
Seller pursuant to Section 293(1)(a) of the Act and all other
applicable Laws to effect the transactions contemplated by this Agreement and
any applicable Ancillary Agreements to which it is a party (with the notice to
the shareholders of the Seller seeking such approval being in an Agreed Form)
and such approvals must be in full force and effect; and


 


5.2.6        Transaction Documents. The Purchaser must have delivered or
caused to be delivered to the Seller each document that Clause 7.2.2
requires it to deliver, each in form and substance satisfactory to the Seller
and each such document must be in full force and effect.


 


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6              PRE-CLOSING COVENANTS


 


6.1           Access and Investigation


 


6.1.1        Between the Effective Date and the
Closing Date, the Seller shall subject to any applicable Law and the terms of
any Contract, afford the Purchaser and its directors, employees, agents,
prospective financing sources, third party consultants and other advisors and
representatives, access, during regular business hours and upon reasonable
agreed-upon times, to Seller’s personnel and any properties related to any
Business, the Contracts, the Inventory, books and records and all other information
and materials pertaining to the Business, provided that such access
shall not unreasonably interfere with the Seller’s business and operations,
shall be subject to the requirements of all applicable Competition/Investment
Laws, and shall, at all times, be subject to any other applicable legal
requirements imposed by applicable Law.


 


6.1.2        other than for matters related to
Competition/Investment Laws which are provided for in Clause 6.3.4,
until the Closing, the Seller shall allow the Purchaser and its directors,
officers, employees, agents, prospective financing sources, third party
consultants and other advisors and representatives, to the extent permitted by
Law, to: (a) attend with the Seller any meeting between the Seller and any
Governmental Authority on a matter regarding the Business, the Transferred
Assets of the Business or the transactions contemplated by this Agreement and
the Ancillary Agreements; and (b) consult with the Seller with respect to
any matters discussed at any such meeting; and the Seller shall provide the
Purchaser with at least 3 (three) Business Days notice prior to any such
meeting. All requests and inquiries from any Governmental
Authority prior to the Closing shall be dealt with by the Seller and the
Purchaser in consultation with each other and the Seller and the Purchaser
shall promptly co-operate with and provide all necessary information and
assistance reasonably required by such Governmental Authority upon being
requested to do so by the other.


 


6.2           Operation of the Business by the Seller


 


6.2.1        Affirmative Covenants. Until the Closing, except as expressly
consented to by the Purchaser in writing, the Seller shall, and shall cause
each of its Affiliates to:


 


6.2.1(a)                   conduct the Business only in the Ordinary
Course of Business and in compliance in all respects with all applicable Laws;


 


6.2.1(b)                   use commercially reasonable efforts to
preserve and protect the Business and the Transferred Assets of the Business
and its present relationships with customers, suppliers, distributors and other
Persons with which the Seller or its Affiliates have significant business
relations in order to preserve and not impair the Goodwill of the Business;


 


6.2.1(c)                   manufacture, test, certify and release
Finished API only in the Ordinary Course of Business; and


 


6.2.1(d)                   perform its obligations under all
Contracts applicable to the Business or the Transferred Assets of the Business
to which they are a party, by


 


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which it or any
of the Transferred Assets of the Business are bound or affected or pursuant to
which the Seller is an obligor or beneficiary, and comply with all Laws,
Judgments, Registrations and Governmental Authorizations applicable to the
Business or the Transferred Assets of the Business.


 


6.2.2        Negative Covenants. Without limitation of the covenants
contained in Clause 6.2.1, until the Closing, except as expressly
permitted by this Agreement or as otherwise expressly consented to by the
Purchaser in writing (it being agreed and understood that actions taken by the
Seller or its Affiliates that are specifically consented to in writing by the
Purchaser pursuant to this Clause 6.2.2 shall not constitute breaches of
representations and warranties under this Agreement), the Seller shall not and
shall not cause or permit any of its Affiliates to:


 


6.2.2(a)                   take any action to change accounting
policies or procedures (including procedures with respect to revenue
recognition), change any material assumption underlying, or method of
calculating, any bad debt contingency or other reserve, except in each case
required to conform to GAAP or applicable Laws;


 


6.2.2(b)                   enter into, amend or assume any Contract
related to, impacting or otherwise affecting the Business, any of the
Transferred Assets of the Business or Assumed Liabilities or the Seller’s
performance of its obligations under this Agreement or any of the Ancillary
Agreements, including Contracts for insurance, other than in the Ordinary
Course of Business;


 


6.2.2(c)                   transfer, assign, sell, pledge, mortgage,
dispose, lease, or encumber any assets, tangible or intangible included in the
Transferred Assets of the Business, including any Leased Business Real
Property, or suffer to exist any Encumbrance thereon other than Encumbrances in
existence on the Effective Date, other than sales of products of the Business
in the Ordinary Course of Business;


 


6.2.2(d)                   with respect to the Purchased
Intellectual Property and with respect to any rights to the Purchased
Intellectual Property granted under any Contract, (i) transfer, assign or
license to any Person any rights to such Purchased Intellectual Property; (ii) abandon,
permit to lapse or otherwise dispose of any Purchased Intellectual Property; (iii) grant
any Encumbrance on any Purchased Intellectual Property; or (iv) make any
material changes in or to the Purchased Intellectual Property that reasonably
could be expected to impair such Purchased Intellectual Property or the Seller’s
or its Affiliates rights with respect thereto;


 


6.2.2(e)                   terminate the employment of any Key
Employee except in accordance with the terms of such Key Employee’s employment
Contract or pursuant to applicable Law;


 


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6.2.2(f)                    increase the total number of Business
Employees by more than 5% (five percent) of the total number included on Clause 9.17.1(a) of
the Seller Disclosure Schedule provided that any increase in the number of
Business Employees effected at the specific request of the Purchaser or
effected upon the written mutual agreement of the Seller and the Purchaser
shall not be considered to be a part of such increase;


 


6.2.2(g)                   amend the terms and conditions of
employment (including remuneration, pension entitlements and other benefits) of
any Key Employees (other than increases in the Ordinary Course of Business
which the Seller shall notify the Purchaser of as soon as reasonably possible
thereafter);


 


6.2.2(h)                   except for merit increases or bonus
payments made in the Ordinary Course of Business, grant (or commit to grant)
any increase in the compensation (including incentive or bonus compensation) of
any employee engaged in the Business, or institute, adopt or amend (or commit to
institute, adopt or amend) any Business Employee Plan;


 


6.2.2(i)                    act or omit to act in a manner that would
impair or otherwise adversely affect in a material respect the Business, any of
the Transferred Assets of the Business or Assumed Liabilities or the Seller’s
performance of their obligations under this Agreement or any of the Ancillary
Agreements;


 


6.2.2(j)                    encourage customers of the Business to
return products outside of the Ordinary Course of Business;


 


6.2.2(k)                   make sales of products of the Business to
customers or distributors other than in the Ordinary Course of Business;


 


6.2.2(l)                    fail to pay accounts payable and other
obligations of the Business other than those disputed in good faith;


 


6.2.2(m)                  accelerate the collection of Accounts
Receivable or modify the payment terms of any Accounts Receivable;


 


6.2.2(n)                   adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or the reorganization of the Seller or its Affiliates;


 


6.2.2(o)                   change the location of any collateral
under any Indebtedness Contract identified in Clause 9.14.1 of the
Seller Disclosure Schedule, other than inventories and supplies of raw
materials in the Ordinary Course of Business;


 


6.2.2(p)                   enter into any
guarantee, indemnity or other agreement to secure any  obligation of a third party or create any
Encumbrance over any of the
Transferred Assets of the Business;


 


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SEC.


 


6.2.2(q)                   agree to settle, compromise or otherwise
resolve in whole or in part any actual, potential or threatened claims or
Proceedings in connection with or involving the Business or Transferred Assets
of the Business; or


 


6.2.2(r)                    agree, whether in writing or otherwise,
to do any of the foregoing or take, or commit to take, any action that would
result in the occurrence of any of the foregoing.


 


6.3           Consents and Filings; Reasonable Efforts


 


6.3.1        The Seller shall use and shall cause its
Affiliates to use commercially reasonable efforts: (i) to take promptly,
or cause to be taken, all actions, and to do promptly, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement; (ii) to take promptly, or
cause to be taken, all actions to assign and transfer to the Purchaser (other
than assistance in preparing new applications for), Governmental Authorizations
and Registrations used in or related to the Business or any Transferred Asset
of the Business or required for the ownership or use of any Transferred Asset
of the Business or the operation of the Business; and (iii) as promptly as
practicable after the date of this Agreement, to obtain all Governmental
Authorizations and Registrations from, give all notices to, and make all
filings with, all Governmental Authorities, and to obtain all other Consents,
Releases, substitutions or amendments from, and give all other notices to, all
other Persons, that are necessary or advisable in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement, including those listed in Clause 9.3(a)(ii),
Clause 9.3(b), Clause 9.12.8 and Clause 9.19.2
of the Seller Disclosure Schedule, Schedule 5.1.4 and Schedule 5.1.6,
provided, however, that, subject to Clause 6.3.5, any
costs, fees, expenses or other charges relating to obtaining such Consents or
making such filings shall be borne by the Seller. The Seller shall not
knowingly enter into any acquisition or other agreement, make any announcements
with respect to any transaction or take any other action that could reasonably
be expected to have the effect of materially delaying, impairing or impeding
the receipt of any Consents of any Governmental Authorities or other Persons.


 


6.3.2        As soon as reasonably practicable
following the Effective Date, the Seller and the Purchaser shall (a) each
file a Notification and Report Form and related material with the United
States Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the HSR Act, (b) (i) complete Schedule
5.1.5 to include all jurisdictions in which, based on the applicable
Competition/Investment Laws, a filing under such Competition/Investment Laws is
required in connection with the transactions contemplated by this Agreement and
(ii) make all necessary filings under the applicable
Competition/Investment Laws of the jurisdictions set forth on Schedule 5.1.5,
and (c) use their commercially respective reasonable endeavors to obtain
early termination of the applicable waiting period and shall make all further
filings pursuant thereto that may be necessary, proper or advisable. The
foregoing shall not be deemed to require the Purchaser or any of its Affiliates
to enter into any agreement, consent decree or other commitment requiring the
Purchaser or any of its Affiliates to divest (including through the granting of
any license rights) or hold separate any businesses, assets or properties of
the Business, the Purchaser or any of its


 


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Affiliates; provided,
however, that the Purchaser shall be required to accept a remedy (other
than a remedy to divest (including through the granting of any license rights)
or hold separate any businesses, assets or properties of the Business, the
Purchaser or any of its Affiliates) required by the United States Federal Trade
Commission or the Antitrust Division of the United States Department of Justice
provided that, in the reasonable determination of the Purchaser, such
remedy could not have a material adverse effect on the business, assets,
properties, liabilities, condition (financial or otherwise), operating results,
operations or prospects of the Business, the Purchaser or any of its
Affiliates, and neither the Seller nor any of its Affiliates shall, without
prior written consent of Purchaser, take or commit to take any such actions
with respect to the Business, the Purchaser or its Affiliates.


 


6.3.3        If, prior to the Closing Date, there is a
requirement under the Competition/Investment Laws of India for any Party or the
Parties to make a filing with respect to the transactions contemplated by this
Agreement, then as soon as reasonably practicable following the effective date
of such requirement pursuant to the Competition/Investment Laws of India, the
Seller and the Purchaser, as applicable, shall each file or shall jointly file,
as required, all necessary documentation with the applicable Governmental
Authorities under such Competition/Investment Laws, and the Parties shall use
their respective commercially reasonable efforts to obtain early termination of
any applicable waiting period and shall make all further filings pursuant
thereto that may be necessary, proper or advisable.


 


6.3.4        Subject to appropriate confidentiality
protections, each Party shall: (i) promptly notify the other Party of any
written communication to that Party from any Governmental Authority and,
subject to Law, permit the other Party to review in advance any proposed
written communication to any such Governmental Authority and shall consult with
counsel for the other Party, consider in good faith the views of the other and,
if appropriate, incorporate the other Party’s reasonable comments, and (ii) furnish
the other Party with copies of all correspondence, filings and written
communications with any Governmental Authority with respect to this Agreement
or the transactions contemplated hereby; provided, however that
if Seller or Purchaser believes that any such communication to or from a
Governmental Authority contains (or in the case of a meeting is likely to
involve discussion of) commercially sensitive information that it is unwilling
to provide to the other Party, it shall be sufficient for Seller or Purchaser,
as the case may be, to provide a copy of such communication (or an opportunity
to attend such meeting) to the other Party’s outside counsel.


 


6.3.5        All filing fees under the HSR Act, other
applicable Competition/Investment Laws or other applicable Laws shall be borne
solely by the Purchaser. Subject to Clause 6.3.1, each Party shall
bear its own costs (including the cost of any advisers appointed by it)
incurred in connection with the clearances or any notification to Governmental
Authorities.


 


6.4           Notification


 


Until the
Closing, the Seller shall give prompt written notice to the Purchaser of (a) the
occurrence, or non-occurrence, of any event, the occurrence or non-occurrence
of which would reasonably be expected to cause any representation or warranty
of the Seller contained in this


 


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Agreement to be
untrue or inaccurate, in each case at any time from and after the Effective
Date until the Closing; (b) any failure to comply with or satisfy any
covenant or agreement to be complied with or satisfied by the Seller or any of
its Affiliates under this Agreement; and (c) the failure of any condition
precedent to the Purchaser’s obligations under this Agreement. No notification
pursuant to this Clause 6.4 shall be deemed to amend or supplement
the Seller Disclosure Schedule, prevent or cure any misrepresentation, breach
of warranty or breach of covenant, or limit or otherwise affect any rights or
remedies available to the Purchaser, including pursuant to Clause 11
or Clause 12.


 


6.5           Shareholder Approval


 


6.5.1        The Seller, acting through its board of
directors, shall, in accordance with Section 293(1)(a) of the Act and
all other applicable Laws and the articles of association and memorandum of
association of the Seller:


 


6.5.1(a)                   as soon as reasonably practicable, duly
set a record date for, call and give notice of the meeting of the shareholders
(or a postal ballot as permitted under applicable Law) of the Seller for the
purpose of considering and taking action with respect to the transactions
contemplated by this Agreement and any Ancillary Agreements to which it is a
party; and


 


6.5.1(b)                   as soon as reasonably practicable
following the record date, (i) cause the ballot to be dispatched to the
shareholders of the Seller in an Agreed Form; and (ii) take all other
action reasonably necessary or advisable to secure the approval of the
shareholders of the Seller required by applicable Law to effect the
transactions contemplated by this Agreement and any Ancillary Agreements to
which it is a party.


 


6.6           No Negotiation


 


6.6.1        Until the Closing, the Seller shall not,
and the Seller shall cause its Affiliates, directors, officers, employees,
agents, consultants and other advisors and representatives not to, directly or
indirectly: (a) solicit, initiate, encourage, knowingly facilitate, or
entertain any inquiry or the making of any proposal or offer; (b) enter
into, continue or otherwise participate in any discussions or negotiations; (c) furnish
to any Person any non-public information or grant any Person access to their
properties, assets, books, Contracts, personnel or records; or; (d) approve
or recommend, or propose to approve or recommend, or execute or enter into, any
letter of intent, agreement in principal, merger agreement, acquisition
agreement, option agreement or other Contract or propose, whether publicly or
to any director or shareholder, or agree to do any of the foregoing for the
purpose of encouraging or facilitating any proposal, offer, discussions or
negotiations; in each case regarding any business combination transaction
involving the Seller or its Affiliates in any other transaction that would
result in a Person other than the Purchaser or its Affiliates acquiring all or
any part of the Business, whether by merger, business transfer agreements,
purchase of assets, purchase of stock, tender offer, lease, license or
otherwise. Each of the Seller and the Seller’s Affiliates shall immediately
cease and cause to be terminated any such negotiations, discussion or Contracts
(other than with the Purchaser) that are the subject of clauses (a), (b) or
(d)


 


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above and shall
immediately cease providing and secure the return of any non-public information
and terminate any access of the type referenced in clause (c) above. If
any of the Seller or any of its Affiliates, directors, officers, employees,
agents, consultants or other advisors and representatives receive, prior to the
Closing, any offer, proposal or request, directly or indirectly, of the type
referenced in clause (a), (b) or (d) above or any request for
disclosure or access as referenced in clause (c) above, the Seller and its
Affiliates shall immediately suspend or cause to be suspended any discussions
with such offeror or Person with regard to such offers, proposals or requests
and notify the Purchaser thereof, including, unless prohibited by applicable
Law, information as to the identity of the offeror or Person making any such
offer or proposal and the specific terms of such offer or proposal, as the case
may be, and such other information related thereto as the Purchaser may
reasonably request.  It is agreed and
understood that the terms of this Clause 6.6.1 shall not prevent the
Seller from: (i) issuing or selling any shares of capital stock of the
Seller to third parties in one or more transactions provided that such
issuances or sales do not result in a Change of Control of the Seller or (ii) selling
or divesting assets of the Other Businesses, in each case of (i) or (ii) for
the purposes of raising funds for the Seller from third parties.


 


6.6.2        Until the Closing, neither the Purchaser
nor any of its Affiliates shall enter into any agreements which could
reasonably be expected to adversely affect the Purchaser’s ability to
consummate the transactions contemplated by this Agreement.


 


6.7           Intercompany Arrangements


 


Prior to the Closing, the Seller shall,
and shall cause its Affiliates to, terminate all agreements or arrangements,
written or unwritten, of any kind (other than this Agreement and any Ancillary
Agreements), between the Seller and any of its Affiliates with respect to the
Business, such termination to have effect as of immediately prior to the
Closing.


 


6.8           Mixed Contracts and Mixed Accounts


 


6.8.1        Except as may otherwise be agreed by the
Parties in writing, any Contract (other than (a) Contracts related
exclusively to the Business; (b) licenses of Seller Mixed Use Intellectual
Property; or (c) Contracts that expressly constitute Excluded Assets) that
inures to the benefit or burden of the Business and the Other Businesses (a “Mixed Contract”), including those Contracts
set forth on Schedule 6.8, shall, to the extent commercially reasonable,
be separated as of or as soon as practicable after the Closing, so that each of
the Purchaser and the Seller shall be entitled to the rights and benefits and
shall assume the related portion of any Liabilities inuring to their respective
businesses for the period after the Closing. If any Mixed Contract cannot be so
separated, the Purchaser and the Seller shall, and shall cause each of their
respective Affiliates to, take such other commercially reasonable efforts to
cause: (i) the rights and benefits associated with that portion of each
Mixed Contract that relates to the Business to be enjoyed by the Purchaser; (ii) the
Liabilities associated with that portion of each Mixed Contract that relates to
the operation of the Business following the Closing to be borne by the
Purchaser; (iii) the rights and benefits associated with that portion of
each Mixed Contract that relates to the Other Businesses to be enjoyed by the
Seller; (iv) the Liabilities associated with that


 


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portion of each
Mixed Contract that relates to the Seller’s Other Businesses to be borne by the
Seller; and (v) the Liabilities associated with that portion of each Mixed
Contract that relates to the operation of the Business prior to the Closing to
be borne by the Seller. The Seller shall provide the Purchaser with a copy of
each Mixed Contract (it being understood that the Parties shall use
commercially reasonable efforts to comply, where practicable, with any
applicable confidentiality provisions contained in such Mixed Contracts), and
the Parties shall cooperate with each other to effect such separation. The
costs of such separation shall be borne by the Parties in proportion to the
rights and benefits inuring to each of them under the Mixed Contract; provided;
however, that the Purchaser shall have no Liability with respect to any
cost, expense, charge, fee, penalty or other amount related to such separation
unless the Purchaser consents in writing to such payment.


 


6.8.2        Except as may otherwise be agreed by the
Parties, the Parties shall not assign any Accounts Receivable or payable
relating to both the Business and the Other Businesses (a “Mixed Account”). In the event of any such
Mixed Account, the Purchaser and the Seller shall take such reasonable and
permissible actions to cause: (i) the Transferred Assets of the Business
associated with that portion of each Mixed Account that relates to the Business
to be enjoyed by the Purchaser; (ii) the Assumed Liabilities related with
that portion of each Mixed Account that relates to the Business to be borne by
the Purchaser; (iii) the assets associated with that portion of each Mixed
Account that relates to the Excluded Assets to be enjoyed by the Seller; and (iv) the
Liabilities (other than Assumed Liabilities) related with that portion of each
Mixed Account that relates to the Excluded Assets to be borne by the Seller.


 


6.9           Satisfaction of Obligations to Lenders


 


The Seller
shall satisfy or cause to be satisfied all requirements of its lenders pursuant
to the Indebtedness Contracts and shall take all actions necessary to obtain
all Releases and Consents required pursuant to Clause 5.1.10.


 


6.10         Real Property


 


Except as set forth in Clause 8.1,
prior to the Closing, at the Seller’s sole cost and expense, the Seller shall
take such steps as are necessary to pay in full all Taxes and outgoings due and
payable in respect of the Leased Business Real Property to the extent the
related lease so requires the Seller, including property Taxes, electricity and
water charges prior to the Closing Date, subject to appropriate proration to
the extent such payments relate to the period after the Closing.  The Purchaser agrees to cooperate with the
Seller in reimbursing the Seller for any amounts paid by the Seller to the
extent relating to the period after the Closing.


 


6.11         Financial Statements


 


6.11.1      Until the Closing, on or before the tenth
(10th) day of each month, the Seller shall deliver to
the Purchaser: (a) unaudited unconsolidated financial statements of the
Seller; and (b) unaudited carve-out financial statements of the Business
for the Seller and its Affiliates engaged in the Business as at and for the
monthly period ending on the last day of the preceding month (the “Subsequent Monthly Financial Statements”),
which shall include a balance sheet and profit and loss account. At the time
that the Subsequent Monthly Financial Statements are delivered to the
Purchaser, the Seller shall by such delivery be deemed to have made the
representations and warranties to


 


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the
Purchaser with respect to such Subsequent Monthly Financial Statements as set
forth in Clause 9.4.


 


6.11.2      From the Effective Date, the Seller shall
cooperate in good faith with the Purchaser with respect to the Purchaser’s
preparation of: (a) any audited balance sheets for the Business in
accordance with
generally accepted accounting principles for financial reporting in the United
States and the
related statements of income, changes in equity and cash flows that may be
required by the Purchaser to satisfy the reporting requirements of the United
States Securities and Exchange Commission following the Closing (including the
Purchaser’s 2010 audited financial statements); and (b) an unaudited opening
balance sheet as of the Closing Date in accordance with GAAP.


 


6.12         Contact with Customers and Suppliers


 


Until the
Closing, the Purchaser and the Seller shall cooperate in communicating with any
Business Employees, customers, suppliers, licensors, licensees, partners or
distributors of the Business concerning the transactions contemplated hereby,
including the Purchaser’s intentions concerning the operation of the Business
following the Closing. Until the Closing, the Purchaser and their
representatives shall contact or communicate with the Business Employees,
customers, suppliers, licensors, licensees, partners or distributors of the
Business in connection with the transactions contemplated hereby only with the
prior written consent of the Seller, which shall not be unreasonably withheld
or delayed and may be conditioned upon a designee of the Seller being present
at any meeting or conference. Nothing in this Clause 6.12 shall
prohibit the Purchaser and their representatives from contacting the customers,
suppliers, licensors, licensees, partners or distributors of the Business in
the ordinary course of the Purchaser’s businesses for the purpose of selling
products of the Purchaser’s businesses or for any other purpose unrelated to
the Business or the transactions contemplated by this Agreement, so long as the
Purchaser does not use the Seller’s Confidential Information in making such
contacts.


 


6.13         Replacement of Guarantees


 


The Purchaser and the Seller shall
cooperate with each other with a view to entering into arrangements effective
as of the Closing whereby the Purchaser or one of its Affiliates would be
substituted for the Seller or its Affiliates in any guarantees, letters of comfort,
indemnities or similar arrangements entered into by the Seller or its
Affiliates in respect of the Business (but only to the extent such guarantees,
letters of comfort, indemnities or arrangements constitute Assumed
Liabilities). If the Purchaser or its Affiliates cannot enter into the
arrangements referred to above, the Seller or its Affiliates shall not
terminate such guaranty arrangements without the Purchaser’s consent; provided,
however, that the Purchaser shall enter into a separate guaranty with
the Seller to guarantee the performance of the obligations of the relevant
Person pursuant to the Contract underlying such guaranty arrangements.


 


6.14         Review of Closing Deliveries


 


Prior to the
Seller submitting to any Person for review and comment any draft of a closing
delivery that Clause 7.2 requires the Seller to obtain from such
Person in order to deliver at the Closing, the Seller shall: (a) provide
the Purchaser an opportunity to review and comment on such document, from a
form and substance viewpoint; (b) include in such document all


 


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comments
reasonably proposed by the Purchaser; and (c) not finalize the form of
such document prior to receiving the Purchaser’s approval, which approval shall
not be unreasonably withheld or delayed.


 


6.15         Vizag Land


 


Prior to the
Closing, the Seller shall use its best efforts to assign to the Purchaser,
effective as of the Closing, all of the rights of the Seller in that certain
lease agreement with Ramky Pharma City (India) Limited dated 20 February 2009
with respect to the approximately 27 (twenty-seven) acres of land located
inside the SEZ (the “Vizag Lease”).  If, prior to or on the Closing Date, the
Seller has not been able to assign all of the rights of the Seller in the Vizag
Lease effective as of the Closing Date, then the Cash Consideration payable by
the Purchaser as of the Closing Date shall be reduced by [                *                *                *                ]; provided, however,
that if the Seller assigns all of its rights in the Vizag Lease to the
Purchaser within 1 (one) month following the Closing Date, the withheld amount
of [                *                *                *                ]
shall be paid by the Purchaser to the Seller on the date such assignment of the
Vizag Lease occurs.  If all of the rights
of the Seller in the Vizag Lease are assigned to the Purchaser effective as of
the Closing Date or during the 1 (one) month period thereafter pursuant to the
proviso in the immediately preceding sentence, then the Real Property leased
pursuant to the Vizag Lease shall be deemed Leased Business Real Property for
all purposes under this Agreement.


 


6.16         Additional Fill/Finish Manufacturing


 


Following the Closing, the Purchaser
shall consider in good faith and not unreasonably deny any requests made by the
Seller for the Purchaser to provide fill/finish services for one injectable penem
dosage form of NCE developed by the Seller or contracted by the Seller for
manufacture of such NCE’s for an innovator company.


 


6.17         Currency Conversion


 


The Purchaser
hereby agrees and acknowledges that it shall not convert the Cash Consideration
into Indian Rupees more than 3 (three) Business Days (or as otherwise mutually
agreed in writing by the Seller and the Purchaser) prior to the estimated
Closing Date.


 


6.18         Purchaser Parent Guarantee


 


Concurrently
with the execution of this Agreement, Hospira, Inc., a Delaware
corporation and the parent company of the Purchaser, has executed and delivered
to the Seller the Purchaser Parent Guarantee set forth in Exhibit J


 


6.19         Formulation/Fill/Finish NCE


 


Schedule
6.19
sets forth the general principles for the Fill/Finish NCE Contract
Manufacturing Agreement to be negotiated in good faith by the Seller and the
Purchaser between the Effective Date and the Closing Date on terms and
conditions to be mutually agreed by the Parties.  If the Seller and the Purchaser mutually
agree upon and execute the Fill/Finish NCE Contract Manufacturing Agreement
prior to the Closing, such Fill/Finish NCE Contract Manufacturing Agreement
shall be attached as Exhibit C to this Agreement.


 


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7              CLOSING


 


7.1           Closing


 


On the terms
and subject to the conditions of this Agreement, the Closing shall take place
at the offices of Khaitan & Co., Mumbai, India or at the offices of
the Seller in Chennai, as may be mutually agreed in writing, on the earlier of (i) the
5th (fifth)  Business Day following the day on which the last to be
fulfilled or waived of the conditions set forth in Clause 5 shall
be fulfilled or waived in accordance with this Agreement, (ii) if each of
the conditions set forth in Clause 5 shall be fulfilled or waived
in accordance with this Agreement prior to such date, on March 31, 2010 or
(iii) at such other time, date or place as the Parties may mutually agree
in writing (“Closing Date”). The parties shall
use reasonable efforts to schedule the Closing Date for the last day of a
calendar month. Unless
the Parties otherwise agree in writing, the Closing shall be deemed to have
occurred at 00:01 a.m. local time in India  on
the Closing Date.


 


7.2           Closing Deliveries


 


7.2.1        At the Closing, the Seller shall deliver
or cause to be delivered to the Purchaser:


 


7.2.1(a)                   copies of the resolutions of the board of
directors and shareholders of the Seller, authorizing and approving the
transactions contemplated by this Agreement and the Ancillary Agreements
certified by the company secretary or a director of the Seller to be true and
complete and in full force and effect and unmodified as of the Closing;


 


7.2.1(b)                   a deed of assignments in respect of all
Purchased Intellectual Property in the form of Exhibit E
(collectively, the “IP Assignment”)
duly stamped executed by the Seller or its Affiliates and the originals of all
prior deeds of assignment and other documents pursuant to which the Seller or
its Affiliate has derived its title to the Purchased Intellectual Property;


 


7.2.1(c)                   for each parcel of Leased Business Real Property,
a lease deed and any novations, assignments and Consents as may be necessary to
transfer the right, title and interest in the Leased Business Real Property in
favour of the Purchaser in form and substance reasonably acceptable to the
Purchaser (the “Lease Deeds”) duly
stamped and executed by the Seller and the applicable third party to the
applicable rental or lease Contract;


 


7.2.1(d)                   for each Contract listed on Schedule
5.1.6, such documents, including novations and Consents, as may be
necessary to transfer the rights and obligations of the Seller under such
Contracts;


 


7.2.1(e)                   the Escrow Agreement duly stamped and
executed by the Seller and the Escrow Agent;


 


7.2.1(f)                    the Transition Services Agreement duly
stamped and executed by the Seller;


 


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7.2.1(g)                   the Oral Ceph Contract Manufacturing
Agreement duly stamped and executed by the Seller;


 


7.2.1(h)                   the API Supply Agreement duly stamped and
executed by the Seller;


 


7.2.1(i)                    a receipt from the Seller in a form
reasonably satisfactory to the Purchaser for the amount of the Cash
Consideration less the sum of (i) the Escrow Amount plus (ii) any
withholding required under applicable Law;


 


7.2.1(j)                    a “consent and no objection certificate”
for the Seller from the concerned Assessing Officer of Income Tax pursuant to Section 281
of the Tax Act for the sale of the Business and the Transferred Assets of the
Business, as contemplated hereunder;


 


7.2.1(k)                   a certificate executed by the statutory
auditor of the Seller in Agreed Form certifying that: (i) all
contributions required to be made in respect of the Transferred Employees to
any Business Employee Plan by applicable Law and the terms of such Business
Employee Plan for all periods up to the Closing Date have been timely made or
paid in full; and (ii) specifying the balances that would be required to
be transferred to the Purchaser or in respect of which the applicable insurance
policy would need to be assigned or for which the Purchaser would be required
to obtain an insurance policy;


 


7.2.1(l)                    an actuarial valuation report of gratuity
Liability for the Seller with respect to the Business Employees of the Seller
prepared by an actuary selected by the Purchaser;


 


7.2.1(m)                  the Lender Releases and Consents required
pursuant to Clause 5.1.10;


 


7.2.1(n)                   a certificate in the form of Exhibit G,
dated as of the Closing Date, executed by the Seller confirming the
satisfaction of the conditions specified in Clause 5.1.1 — 5.1.12
(insofar as Clause 5.1.8 relates to Proceedings involving the
Seller or its Affiliates);


 


7.2.1(o)                   the Fill/Finish NCE Contract
Manufacturing Agreement duly stamped and executed by the Seller (if executed by
the Seller and the Purchaser prior to the Closing Date) ; and


 


7.2.1(p)                   such other documents, instruments and
agreements as the Purchaser reasonably requests for the purpose of consummating
the transactions contemplated by this Agreement.


 


7.2.2        At the Closing, the Purchaser shall
deliver or cause to be delivered to the Seller or, in the case of Clause 7.2.2(b) the
Escrow Agent:


 


7.2.2(a)                   the Indian Rupee equivalent of the Cash
Consideration converted by the Purchaser in accordance with Clause 6.17
(as adjusted pursuant to Clause 3.2.1), less (i) the Escrow Amount,
(ii) an amount equal to the


 


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Transferred
Employment Liabilities, (iii) if applicable, [                *       
         *                *                ]
pursuant to Clause 6.15 and (iv) any Taxes required to be withheld
under applicable Law, by wire transfer to an account or accounts of the Seller
designated in writing by the Seller;


 


7.2.2(b)                   the Indian Rupee equivalent of [                *                *                *                ]
converted by the Purchaser in accordance with Clause 6.17 corresponding
to the Escrow Amount, to the Escrow Agent by wire transfer to an account
specified by the Escrow Agent;


 


7.2.2(c)                   the Escrow Agreement executed by the
Purchaser and the Escrow Agent;


 


7.2.2(d)                   the IP Assignments, if any, that require
execution by the Purchaser;


 


7.2.2(e)                   the Lease Deeds executed by the
Purchaser;


 


7.2.2(f)                    the Transition Services Agreement
executed by Purchaser;


 


7.2.2(g)                   the Oral Ceph Contract Manufacturing Agreement executed by the Purchaser;


 


7.2.2(h)                   the API Supply Agreement executed by the
Purchaser;


 


7.2.2(i)                    a certificate in the form of Exhibit G,
dated as of the Closing Date, executed by the Purchaser confirming the
satisfaction of the conditions specified in Clause 5.2.1 — 5.2.6
(insofar as Clause 5.2.4 relates to Proceedings involving the
Purchaser);


 


7.2.2(j)                    the Fill/Finish NCE Contract
Manufacturing Agreement duly stamped and executed by the Purchaser (if executed
by the Seller and the Purchaser prior to the Closing Date); and


 


7.2.2(k)                   such other documents, instruments and
agreements as the Seller reasonably requests for the purpose of consummating
the transactions contemplated by this Agreement.


 


7.3           Escrow Amount


 


As security for
any amounts payable by the Seller to the Purchaser pursuant to the terms of
this Agreement at the Closing, the Purchaser shall retain out of the Cash
Consideration payable pursuant to Clause 3.1 and Clause 7.2.2(a) and
deposit with the Escrow Agent in accordance with the terms of the Escrow
Agreement an amount equal to the Indian Rupee equivalent of [                *                *                *                ]
converted by the Purchaser in accordance with Clause 6.17 (the “Escrow Amount”). The Purchaser shall have a full right to
apply all or any part of the Escrow Amount to pay, or to provide for the
payment of, any amount required to be paid by the Seller to the Purchaser under
the terms of this Agreement and the Escrow Agreement. Subject to the provisions
of the Escrow Agreement, the Purchaser shall instruct the Escrow Agent to
release the unapplied Escrow Amount to the Seller in the following
installments: [    ***    ] within 5 (five) days of the [ *** ] yearly anniversary of the Closing Date
and


 


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the
remaining [***] within 5 (five) days of the [***] yearly anniversary of the Closing Date.
If any Claim Notice has been delivered by the Purchaser to the Seller and the
Parties have not reached an agreement with respect to the Purchaser’s
entitlement to receive the Losses at issue in such Claim Notice, then the
Purchaser’s obligation to instruct the Escrow Agent to release any installment
of the unapplied Escrow Agreement shall be suspended with respect to Purchaser’s
good faith estimate of the amount owed by the Seller under the Claim Notice
until a final determination as to the Purchaser’s entitlement to receive the
Losses covered by the applicable Claim Notice has been reached. These payments
shall be reduced, in the order of their maturities, by any amounts payable by
the Seller pursuant to the terms of this Agreement and the Escrow Agreement.


 


7.4                                 Possession


 


At
the Closing, the Seller shall transfer and convey to the Purchaser title,
free and clear of all Encumbrances (other than Permitted Encumbrances), to
those Transferred Assets of the Business, the title to which may be effectively
transferred by delivery of possession thereof, by delivering possession
thereof, wherever they are currently located, to the Purchaser or the
Purchaser’s agent. At the Closing, the Purchaser shall enter into possession of
the Business of the Seller and shall take delivery of all the Transferred
Assets of the Business capable of being effectively transferred by delivery of
possession thereof.


 


8                                         POST COMPLETION
COVENANTS


 


8.1                                 Tax Matters


 


8.1.1                        All Transfer Taxes pertaining to or
arising out of or in connection with or attributable to the transactions
contemplated by this Agreement and the Ancillary Agreements, regardless of
whether such Transfer Taxes, expenses and fees are imposed by Law on the
Purchaser, the Transferred Assets of the Business or the Seller shall be borne
as follows: (i) the Indian Rupee equivalent of [                       *          
             *                       *                       ], by the Purchaser and (ii) any
amounts in excess of the Indian Rupee equivalent of the first [                       *              
         *                       *                       ] by the Purchaser [***] by the Seller. The Purchaser shall
withhold from: (a) the Cash Consideration any withholding Tax described in
Clause 7.2.2(a) and the Seller’s portion of any Transfer Taxes
and (b) any other payment required to be made to the Seller under this
Agreement, in accordance with applicable Law. The Purchaser shall deposit any
such withholding Tax with the relevant Governmental Authority. The Purchaser
shall prepare, subject to the Seller’s reasonable approval (which approval
shall not be unreasonably withheld or delayed), and timely file all Tax Returns
required to be filed in respect of Transfer Taxes. The Seller and the Purchaser
shall reasonably cooperate with each other to share information reasonably
needed for the preparation of those Tax Returns and any Tax clearance
certificates that either the Seller or the Purchaser may request.


 


8.1.2                        With respect to any Taxes based on the
value of property assessed against any of the Transferred Assets of the
Business, the Seller shall pay those Taxes attributable to periods or partial
periods ending on or prior to the Closing Date, and the Purchaser shall pay
those Taxes attributable to periods or partial periods beginning after the
Closing Date, with a daily allocation for any period that begins on or before
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ends after the
Closing Date. Each Party agrees to cooperate with the other Parties in paying
or reimbursing Tax obligations described in this Clause 8.1.2.
Nothing in this Agreement makes a Party liable for the income or franchise
Taxes of the other Party. This Clause 8.1.2 does not apply to
Transfer Taxes which shall be allocated under the provisions of Clause 8.1.1.


 


8.1.3                        The Seller or Seller’s Affiliates shall,
at Purchaser’s sole cost and expense, apply to each of the relevant Regulatory
Authorities and provide all other necessary assistance for the transfer of, or
issuance of new, Tax Governmental Authorizations included in the Transferred
Assets of the Business to the Purchaser or an Affiliate of the Purchaser.  If the applicable Laws permit election
between the transfer of an existing Tax Governmental Authorization or the
cancellation and issuance of a new Tax Governmental Authorization, the
Purchaser shall be entitled to make such election at its sole discretion.  Provided that the Seller is not in breach of
its obligations set forth in this Clause 8.1.3, the Seller shall not be
liable for any duty or Tax Liability that could arise if the Purchaser does
not, following the Closing Date, register the Transferred Assets of the
Business as an export oriented unit under applicable Indian Laws.


 


8.1.4                        As soon as reasonably practicable
following the Closing Date, the Seller shall make all filings to Tax
authorities required under applicable Tax Laws in order to (a) notify such
Tax authorities of the sale of the Transferred Assets of the Business to the
Purchaser and the assumption of the Assumed Liabilities by the Purchaser
(including the transfer of any Leased Business Real Property located inside the
SEZ to the Purchaser), (b) transfer all unutilized indirect tax credits to
the Purchaser and (c) transfer and change the registered holder of the
Export Promotion Capital Goods Governmental Authorizations.


 


8.1.5                        The transfer of the Business is on
going-concern basis and any determination of the value of an asset or liability
for the sole purpose of payment of stamp duty, registration fees or other
similar Transfer Taxes shall not be regarded as assignment of values to
individual assets or liability.


 


8.2                                 Excluded Liabilities


 


The
Seller agrees to pay and perform when due all Excluded Liabilities.


 


8.3                                 Public Announcements.


 


Except
for the press releases of the Seller and the Purchaser attached hereto as Exhibit H,
which shall be released by the Seller and the Purchaser upon the execution of
this Agreement, neither Party shall issue or make any public announcement,
press release or other public disclosure regarding this Agreement or the
Ancillary Agreements or their subject matter without the other Party’s prior
written Consent, except for: (a) any public announcements, press releases
or other public disclosures which repeat the text contained on Exhibit H
regarding this Agreement or the Ancillary Agreements or their subject matter;
and (b) any such disclosure that is, in the opinion of the disclosing
Party’s counsel, required by Law or the rules of a stock exchange on which
the securities of the disclosing Party are listed with respect to this Agreement
or any Ancillary Agreement. In the event a Party is, in the opinion of its
counsel, required to make a public disclosure by Law or the rules of a
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Agreement
or the Ancillary Agreements or their subject matter, such Party shall submit
the proposed disclosure in writing to the other Party at least: (i) 3
(three) days prior to the date of disclosure in connection with an
extraordinary event that occurred without advance warning to either Party; or (ii) 5
(five) days prior to the date of disclosure in connection with an ordinary
course disclosure or in connection with the closing of the transaction
contemplated herein, for an opportunity to provide comments thereon and shall
incorporate the reasonable comments provided by the other Party.


 


8.4                                 Assistance in Proceedings


 


From
and after the Closing, at the reasonable request of the Purchaser and subject
to customary confidentiality restrictions, the Seller shall, and shall cause
its Affiliates to, and, unless the Purchaser is entitled to indemnification
therefor under the provisions of Clause 11.1, the Purchaser shall
reimburse the Seller and its Affiliates for all reasonable out-of-pocket costs
and expenses incurred by the Seller and its Affiliates therefor, reasonably
cooperate with the Purchaser and its counsel in the contest or defense of, and
make available its personnel and provide any testimony and access to its books
and records in connection with, any Proceeding involving or relating to: (a) any
of the transactions contemplated by this Agreement; or (b) any action,
activity, circumstance, condition, conduct, event, fact, failure to act,
incident, occurrence, plan, practice, situation, status or transaction on or
before the Closing Date involving the Seller or the Business.


 


8.5                                 Privileges


 


The
Seller acknowledges that the Transferred Assets of the Business include all
attorney work-product protections, attorney-client privileges and other legal
protections and privileges to which the Seller may be entitled in connection with
any of the Transferred Assets of the Business or Assumed Liabilities. The
Seller is not waiving, and shall not be deemed to have waived or diminished,
any of its attorney work-product protections, attorney-client privileges or
similar protections or privileges as a result of the disclosure of information
to the Purchaser and its representatives in connection with this Agreement and
the transactions contemplated by this Agreement. The Seller and the Purchaser: (a) share
a common legal and commercial interest in all of the information and
communications that may be subject to such protections and privileges; (b) are
or may become joint defendants in Proceedings to which such protections and
privileges may relate; and (c) intend that such protections and privileges
remain intact should any of the Parties become subject to any actual or
threatened Proceeding to which such information or communications relate. The
Seller agrees that the Seller and its Affiliates shall have no right or power
after the Closing Date to assert or waive any such protections or privileges
included in the Transferred Assets of the Business. The Seller shall take any
actions reasonably requested by the Purchaser, in order to permit the Purchaser
to preserve and assert any such protections or privileges included in the
Transferred Assets of the Business; provided, however, that
unless the Purchaser is entitled to indemnification therefor under the
provisions of Clause 11, the Purchaser shall reimburse Seller for all
reasonable out-of-pocket costs and expenses incurred by the Seller and its
Affiliates.


 


8.6                                 Non-competition; Non-solicitation.


 


8.6.1                        In view of the
transactions contemplated by the terms of this Agreement and the acquisition by
the Purchaser of the Goodwill, during the period commencing on the 


 


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Closing Date and ending on the [***] anniversary
of the Closing Date (or, if not enforceable for such period in any country
under the Competition/Investment Laws of such country, for such shorter period
as shall be enforceable in such country under the Competition/Investment Laws
of such country) (the “Restricted Period”),
neither KRR (for so long as he is a director or officer of the Seller or any of
its Affiliates) nor the Seller shall, and KRR (for so long as he is a director
or officer of the Seller or any of its Affiliates) and the Seller shall cause
their respective Affiliates (and their respective successors and assigns,
including any Person that acquires a majority of the Other Businesses
(regardless of whether the transaction is structured as an asset or share
transaction)) not to, directly or indirectly: (a) engage in any business
anywhere in the world that conducts any Purchaser Competing Activities; or (b) own
an interest in, manage, operate, join, control, lend money or render financial
or other assistance to or participate in or be connected with, as a partner,
stockholder, co-venturer, consultant or otherwise, any Person that is engaged
or planning to become engaged in the business of conducting any Purchaser
Competing Activities anywhere in the world, provided, however,
that, for the purposes of this Clause 8.6.1, none of the following shall
be deemed to be in violation of this Clause 8.6.1: (i) ownership of
securities having no more than 5% (five percent) of the outstanding voting
power of any Person which are listed on any national securities exchange as
long as the Person owning such securities has no other connection or
relationship with such Person, (ii) performing activities intended to
enable KRR, the Seller or their respective Affiliates to engage in a business
that conducts the Purchaser Competing Activities following the expiration of
the Restricted Period provided that the performance of such activities
does not constitute, directly or indirectly, a breach of (a) or (b) of
this Clause 8.6.1 as contrasted to the preparation therefor following the
expiration of the Restricted Period, (iii) if the Seller is acquired in a
single transaction or series of related transaction by any Person whose
turnover in the last accounting year exceeded [                       *          
             *                       *                       ] (measured in
terms of the consolidated turnover of such Person and its Affiliates) that
conducts (or whose Affiliates conduct) any Purchaser Competing Activities
anywhere in the world (taken together with its Affiliates, the “Competing Acquiring Persons”) if both (A) the Purchaser
Competing Activities of the Competing Acquiring Persons represent not more than
50% (fifty percent) of the business of the Competing Acquiring Persons
(measured in terms of turnover and/or assets in the last accounting year of the
Competing Acquiring Persons) and (B) the Seller does not engage in any
business anywhere in the world that conducts any Purchaser Competing Activities
following the consummation of such acquisition (it is being agreed and
understood that for purposes of this subclause (iii) the Seller shall not
be deemed an Affiliate of the Competing Acquiring Person) or (iv) the
Seller engaging in the business of researching, developing, manufacturing,
selling, marketing or distributing vaccines anywhere in the world (the “Vaccine Business”). If requested by the Purchaser at any
time during the Restricted Period, the Seller shall promptly (and not later
than 10 (ten) days following receipt of such request from the Purchaser)
deliver to the Purchaser a certificate executed by an officer of the Seller in
form and substance reasonably satisfactory to the Purchaser certifying the
compliance of KRR, the Seller and their respective Affiliates with the terms of
this Clause 8.6.1.  The Seller
acknowledges and agrees that, as of the Effective Date, the Seller and its
Affiliates are not engaged in the Vaccine Business.  The Parties agree that, during the period
from the Effective Date to the Closing Date, the Seller and any of its
Affiliates may engage in the Vaccine Business provided that the 


 


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activities of such Vaccine Business are maintained completely separate
from the activities of the Business, such separation to include that (i) the
activities of such Vaccine Business (A) do not utilize any Transferred
Assets, (B) are not conducted at any of the Leased Real Properties and (C) do
not impair or
otherwise adversely affect the performance by the Seller and its Affiliates of
their obligations under this Agreement or any Ancillary Agreement and (ii) none
of the Business Employees are engaged in such Vaccine Business.


 


8.6.2                        “Purchaser Competing Activities” means the business of
researching, evaluating and litigating originator Intellectual Property for,
developing, testing, obtaining regulatory approval for, manufacturing,
negotiating third party contracts for, procuring materials for, performing fill
and finish services for, marketing, distributing and selling injectable
pharmaceutical products for all human and animal prophylactic and therapeutic
uses in all formulations and dosage forms and for any and all indications; provided,
however, that the Purchaser Competing Activities shall expressly exclude
(a) selling, marketing or distributing generic injectable pharmaceutical
products in the Excluded Countries and India, (b) subject to the
exclusivity provisions of the API Supply Agreement, the business of
researching, manufacturing and testing API for use in generic injectable
pharmaceutical products, and (c) the business of performing drug
discovery, research, development work and/or manufacturing for Seller’s own
requirements or a third party’s requirements with respect to NCE’s and/or NBE’s.


 


8.6.3                        The Restricted Period shall be extended
by the length of any period during which any Party or an Affiliate of any Party
is in material breach of the terms of this Clause 8.6.


 


8.6.4                        Unless otherwise agreed to in writing by the Purchaser, during the
Restricted Period, neither
KRR (for so long as he is a director or officer of the Seller or any of its
Affiliates) nor
the Seller shall, directly or
indirectly, for itself or on behalf of or in conjunction with any other Person,
and the Seller shall cause its Affiliates not to, directly or indirectly call
upon any Transferred Employee or any individual who is, at the time the
individual is called upon, an employee of the Purchaser or any of its
Affiliates for the purpose or with the intent of soliciting such employee away
from or out of the employ of the Purchaser or any of its Affiliates, or employ
or offer employment to any individual who was or is employed by the Purchaser
or any of its Affiliates unless such individual shall have ceased to be
employed by the Purchaser or any of its Affiliates for a period of at least 12
(twelve) months prior thereto.  This Clause 8.6.4 shall not
be deemed to prohibit either KRR, the Seller or its Affiliates from engaging in
general media advertising or solicitation that may be targeted to a particular
geographic or technical area but that is not specifically targeted towards
employees of the Purchaser or any of its Affiliates..


 


8.6.5                        In view of the transactions contemplated
by the terms of this Agreement and the retention by the Seller of the Other
Businesses, during the period commencing on the Closing Date and ending on the
earlier of (i) the [***] anniversary of the Closing Date (or, if
not enforceable for such period in any country under the Competition/Investment
Laws of such country, for such period as shall be enforceable in such country
under the Competition/Investment Laws of such country) or (ii) the date of
the expiration or early termination of the API Supply Agreement (the “Purchaser Restricted Period”), provided, however,
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to a breach of
a material obligation by Purchaser pursuant to such API Supply Agreement, the
Purchaser shall, and the Purchaser shall cause its Affiliates not to, directly
or indirectly, to engage in any business anywhere in the world that
conducts any Seller Competing Activities, provided  that, for the purposes of this Clause 8.6.5,
the Purchaser or any of their Affiliates shall not be prevented from (i) being
the holder or beneficial owner by way of bona fide
investment purposes only of any units of an authorized unit trust and/or any
securities in any company carrying on any Seller Competing Activities which are
listed or traded on any recognized stock exchange, regulated market or trading
facility provided that Purchaser and its Affiliates do not have directly or
indirectly any management functions or any material influence in such a
company, or (ii) acquiring in a single transaction or a series of related
transactions any one or more companies and/or businesses (taken together, the “Acquired Business”) and carrying on that
Acquired Business although its activities include any Seller Competing
Activities (the “Acquired Competing Business”),
if the Acquired Competing Business represents 50% (fifty percent) or less of
the Acquired Business (measured in terms of turnover in its last accounting
year) and the Purchaser does not build up or utilize the Acquired Competing
Business for purposes of competing with Seller’s business of supplying
Beta-Lactam API to Purchaser.  The sole
and exclusive remedy of the Seller and its Affiliates for any breach by the
Purchaser or any of its Affiliates shall be the termination of the obligations
of KRR, the Seller and their respective Affiliates pursuant to Clause 8.6.1
(provided that such termination shall not effect the obligations of KRR, the
Seller or their respective Affiliates pursuant to Clause 8.6.1
prior to such termination or the remedies of the Purchaser and its Affiliates
for any breach of Clause 8.6.1 resulting from any events, actions or
circumstances occurring prior to such termination whether or not known to the
Purchaser or its Affiliates prior to such termination). If requested
by the Seller at any time during the Purchaser Restricted Period, the Purchaser
shall promptly (and not later than 10 (ten) days following receipt of such
request from the Seller) deliver to the Seller a certificate executed by an
officer of the Purchaser in form and substance reasonably satisfactory to the
Seller certifying the compliance of the Purchaser and its Affiliates with the
terms of this Clause 8.6.5.


 


8.6.6                        “Seller
Competing Activities” means the business of researching, developing,
testing, manufacturing, selling, marketing and distributing Beta-Lactam API.


 


8.6.7                        Unless otherwise agreed to in writing by
the Seller, during the Purchaser Restricted Period, the Purchaser shall not, directly
or indirectly, for itself or on behalf of or in conjunction with any other
Person, and the Purchaser shall cause its Affiliates not to, directly or
indirectly call upon any individual who is, at the time the individual is
called upon, an employee of the Seller or any of its Affiliates engaged in any
Other Businesses for the purpose or with the intent of soliciting such employee
away from or out of the employ of the Seller or any of its Affiliates, or
employ or offer employment to any individual who was or is employed by the
Seller or any of its Affiliates unless such individual shall have ceased to be
employed by the Seller or any of its Affiliates for a period of at least 12
(twelve) months prior thereto.  This Clause 8.6.7
shall not be deemed to prohibit the Purchaser or its Affiliates from engaging
in general media advertising or solicitation that may be targeted to a
particular geographic or technical area but that is not specifically targeted
towards employees of the Seller.


 


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8.6.8                        If a final Judgment of a court or
tribunal of competent jurisdiction determines that any term or provision
contained in Clause 8.6.1 to 8.6.7 is invalid or
unenforceable, then the Parties agree that the court or tribunal shall have the
power to reduce the scope, duration, or geographic area of the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
or unenforceable term or provision. This Clause 8.6 shall be
enforceable as so modified after the expiration of the time within which the
Judgment may be appealed. The Parties agree that this Clause 8.6 is
reasonable and necessary to protect and preserve each Party’s legitimate
business interests, the value of the Transferred Assets of the Business, the
Goodwill being purchased by the Purchaser hereunder and the value of the Other
Businesses being retained by the Seller and to prevent any unfair advantage
being conferred on either Party.


 


8.6.9                        The Parties agree that the covenants of
non-competition and non-solicitation contained in this Clause 8.6
are reasonable covenants under the circumstances.


 


8.7                                 Use of Trademarks


 


From
and after the Closing, the Seller shall not, and shall cause its Affiliates not
to, directly or indirectly, use or do business, or assist any Person in using
or doing business, under the product specific Trademarks used in the
Business.  It is agreed and understood that
the Purchaser shall only use the Corporate Names in accordance with the
provisions of Clause 8.14.


 


8.8                                 Reports and Returns


 


The
Seller shall promptly after the Closing prepare and file all reports and
returns required by applicable Laws relating to the Business as conducted using
the Transferred Assets of the Business for the period prior to the Closing
Date.


 


8.9                                 Access to Records


 


8.9.1                        After the Closing, the Purchaser shall
retain for a period consistent with the Purchaser’s record retention policies
and practices those records included in the Transferred Assets of the Business
delivered to the Purchaser. The Purchaser also shall provide the Seller and
their employees, agents, consultants and other advisors and representatives
reasonable access thereto as may be reasonably requested to enable them to
prepare financial statements or Tax Returns, deal with Tax audits or pay,
discharge or perform the Excluded Liabilities.


 


8.9.2                        The Seller shall preserve all books of
account, records and files in respect of the Business, of which the Purchaser
have not been given possession, for the longer of such period as may be
specified under any applicable Law or as requested by the Purchaser. The Seller
shall and shall cause each of its Affiliates and their respective employees,
agents, consultants and other advisors and representatives to, allow the
Purchaser, its employees, officers, advisers and agents access and to make
copies thereof, as may be reasonably requested by the Purchaser, to the books,
records and files relating to the Business for the period prior to and up to
the Closing Date. The Seller agrees with the Purchaser to provide all
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declarations,
forms and documents to enable the Purchaser to adequately deal with all
litigation, Tax claims, Proceedings and assessments.


 


8.10                           Returns of Products


 


8.10.1                  The Seller shall be responsible for and
shall indemnify and hold harmless the Purchaser in accordance with the
provisions of Clause 7.3 and Clause 11 against any and
all Losses that the Purchaser or any of its Affiliates may suffer (including
the cost of replacement or returns of products of the Business), arising out
of, relating to or resulting from products of the Business that were sold prior
to the Closing and returned or claimed for credit by any customer or distributor
within the first 12 (twelve) months after the Closing Date (collectively, “Returns”). 
All indemnification payments made pursuant to this Clause 8.10
shall be treated by the Parties as adjustments to the Cash Consideration.  The Parties agree that the Purchaser shall
first seek reimbursement from amounts remaining in the Escrow Amount for any
indemnification payments made pursuant to this Clause 8.10.


 


8.10.2                  During the 12 (twelve) month period
following the Closing Date, neither the Purchaser nor the Seller (nor any
Affiliates of the Parties) shall initiate or encourage customers or
distributors of the Business to return products, except as the Purchaser
reasonably deems prudent or necessary due to quality, health or safety reasons
or as required by Law.


 


8.10.3                  If the Purchaser takes any actions in
breach of its obligations set forth in Clause 8.10.2, the Seller shall
not be bound by Clauses 8.10.1 and 8.10.2 above.


 


8.11                           Refunds


 


If the Seller (or any of its Affiliates),
on the one hand, or the Purchaser (or any of its Affiliates), on the other
hand, after the Closing Date receive any funds properly belonging to the other
Party in accordance with the terms of this Agreement, the receiving Party shall
promptly so advise such other Party, shall segregate and hold such funds in
trust for the benefit of such other Party and shall promptly deliver such
funds, together with any interest earned thereon, to an account or accounts
designated in writing by such other Party.


 


8.12                           Inquiries


 


After
the Closing, the Seller shall refer to the Purchaser any inquiry that the
Seller or any of its Affiliates receive relating to the Business or the
Transferred Assets of the Business; provided, however, that the
Seller shall not refer (but shall provide the Purchaser with prompt written
notice thereof pursuant to Clause 15.1) to the Purchaser any
inquiry related to any Proceeding or any claim with respect to the operation of
the Business prior to the Closing.


 


8.13                           Product Complaints


 


Within
5 (five) days of the Seller receiving any notice or other communication from
any Governmental Authority or any other Person regarding any actual, alleged or
potential safety, contamination, adulteration or misbranding issues with
respect to the products related to the Business or becoming aware of any fact
or circumstance reasonably likely to lead to a recall, withdrawal, field correction,
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Business,
the Seller shall notify the Purchaser in writing pursuant to Clause 15.1
of such notice, communication, fact or circumstance.


 


8.14                           Use of Corporate Name


 


8.14.1                  Except as specifically provided in this Clause 8.14
or the Ancillary Agreements, from and after the Closing, neither the Purchaser
nor any of its Affiliates shall use or permit their distributors to use the
Corporate Name.


 


8.14.2                  Within 3 (three) months after the Closing
Date, the Purchaser shall, and shall cause its Affiliates to, cease to use and
remove or cover the Corporate Name from all signs and billboards.


 


8.14.3                  Within 3 (three) months after the Closing
Date, the Purchaser shall, and shall cause its Affiliates to, cease to use and
remove or cover the Corporate Name from all signs sales invoices, printed
forms, documents, stationery, office supplies or other similar materials.


 


8.14.4                  The Purchaser and its Affiliates and
designees shall have the right to market, promote, sell and distribute all
Inventory existing as of the Closing bearing the Corporate Name until the
expiration (on a product by product of the Business basis) of the relevant
stock.


 


8.14.5                  The Purchaser and its Affiliates and
designees shall have the right to manufacture, assemble and package (or have
manufactured, assembled and packaged) products of the Business bearing the
Corporate Name, to the same extent as such products are manufactured,
assembled, packaged and sold as of the date of this Agreement, for up to 24
(twenty four) months following the Closing Date.


 


8.14.6                  The Purchaser and its Affiliates and
designees may use product literature that bears the Corporate Name for up to 3
(three) months after the Closing Date. No product literature used after 3
(three) months after the Closing Date may include a reference to the Corporate
Name.


 


8.15                           Seller Mixed-Use Intellectual Property
Licenses


 


8.15.1                  At the Closing, the Seller shall, and
shall cause its Affiliates to, grant to the Purchaser and its Affiliates (to
the extent that the Seller and its Affiliates have the right to make such
grant), a perpetual, irrevocable, worldwide, sole and exclusive (even with
respect to the Seller and its Affiliates, except with respect to researching,
developing, manufacturing, selling, marketing or distributing vaccines anywhere
in the world in which case the license granted pursuant to this Clause 8.15.1
shall be co-exclusive with the Seller and its Affiliates) and royalty-free right and license
(with the right to grant sublicenses) under the Seller Mixed-Use Intellectual
Property, solely within the Field of Use; provided, however that
the foregoing grant shall not limit the ability of the Seller and its
Affiliates from using the Seller Mixed-Use Intellectual Property to conduct the
Seller’s Other Businesses and all activities related thereto. For the purposes
of this Agreement, the term “Field of Use”
means the business of researching, evaluating and litigating originator
Intellectual Property permitted under applicable Law for, developing, testing,
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party contracts
for, procuring materials for, performing fill and finish services for,
marketing, distributing and selling injectable pharmaceutical products for all
human and animal prophylactic and therapeutic uses in all formulations and
dosage forms and for any and all indications, as such business is conducted
anywhere in the world by the Seller and its Affiliates immediately prior to the
date of this Agreement.


 


8.15.2                  The Seller and its Affiliates shall have
the first right, but not the obligation, to commence, prosecute any and defend
any Proceedings involving the Seller Mixed-Use Intellectual Property. In
addition, the Purchaser and its Affiliates shall be entitled to join in any
such Proceeding at their own expense. Each Party shall be entitled to retain
any and all amounts awarded to it in any such Proceeding.


 


8.15.3                  The Purchaser agrees to comply with the
terms and conditions of any underlying license to the Seller with respect to
any Seller Mixed-Use Intellectual Property sublicensed to the Purchaser
pursuant to this Clause 8.15.


 


8.16                           Manufacture of Non-Business Products


 


Following
the Closing, except as specifically contemplated by the Oral Ceph Contract
Manufacturing Agreement, the Fill/Finish NCE Contract Manufacturing Agreement
(if executed) or the Transition Services Agreement, neither the Purchaser nor
its Affiliates shall be obligated to manufacture or produce any products at the
Leased Business Real Property sites that are not included in the Business or
the Transferred Assets of the Business and the Seller shall transfer on or
prior to the Closing Date, or the expiration or termination of the Oral Ceph
Contract Manufacturing Agreement, the Fill/Finish NCE Contract Manufacturing
Agreement (if executed) or the Transition Services Agreement, as applicable,
the manufacture and production of such products or services to an alternate
location.


 


8.17                           Transition Services


 


Prior
to the Closing, the Parties shall negotiate in good faith and enter into a
Transition Services Agreement (the “Transition Services
Agreement”), the terms of which shall be in accordance with the
terms and principles contained in Schedule 8.17.  Upon execution of the Transition Services
Agreement by the Seller and the Purchaser, such Transition Services Agreement
shall be attached as Exhibit I to this Agreement


 


8.18                           Further Action


 


8.18.1                  Subject to the other express provisions
of this Agreement, the Parties shall cooperate reasonably with each other and
with their respective representatives in connection with any steps required to
be taken as part of their respective obligations under this Agreement, and the
Parties agree: (a) to furnish, or cause to be furnished, upon request to
each other such further information; (b) to execute and deliver, or cause
to be executed and delivered, to each other such other documents; and (c) to
do, or cause to be done, such other acts and things, all as the other Party may
reasonably request for the purpose of carrying out the intent of this Agreement
and the Ancillary Agreements and the transactions contemplated hereby and
thereby. Without limitation of the foregoing, the Seller shall cooperate
with the Purchaser following the Closing and provide all necessary
assistance, take all necessary actions as may be required and


 


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execute such
documents to: (i) register the IP Assignments; and (ii) fully
vest the Purchased Intellectual Property in the name of the Purchaser.


 


8.18.2                  Notwithstanding any other provision of this
Agreement, this Agreement does not constitute an agreement to sell, convey,
assign, assume, transfer or deliver any interest in any Transferred Asset of
the Business, or any claim, right, benefit or obligation arising thereunder or
resulting therefrom if a sale, conveyance, assignment, assumption, transfer or
delivery, or an attempt to make such a sale, conveyance, assignment,
assumption, transfer or delivery, without the Consent of a third party would: (a) constitute
a breach or other contravention of the rights of such third party; (b) would
be ineffective with respect to any party to a Contract concerning such
Transferred Asset of the Business; or (c) would, upon transfer, in any way
adversely affect the rights of the Purchaser under such Contract or with
respect to such Transferred Asset of the Business. If the sale, conveyance,
assignment, transfer or delivery by the Seller to the Purchaser of any interest
in, or assumption by the Purchaser of any Liability under, any Transferred
Asset of the Business requires the Consent of a third party, then such sale,
conveyance, assignment, transfer, delivery or assumption shall be subject to
such Consent being obtained. Without limiting Clause 8.18.3, if any
Contract included in the Transferred Assets of the Business may not be assigned
to the Purchaser by reason of the absence of any such Consent, the Seller shall
not be required to assign such Contract. 
The Purchaser shall not be required to assume any Assumed Liability
arising under such Contract.


 


8.18.3                  If any Consent in respect of a Transferred Asset
of the Business has not been obtained on or before the Closing Date, the Seller
shall continue to use commercially reasonable efforts to obtain such Consent as
promptly as practicable after the Closing until such time as such Consent has
been obtained, and to cooperate in any lawful and reasonable arrangement which
shall provide the Purchaser the benefits of any such Transferred Asset of the
Business, including subcontracting, licensing or sublicensing to the Purchaser
any or all of the Seller’s rights with respect to such Transferred Asset of the
Business and including the enforcement for the benefit of the Purchaser of any
and all rights of the Seller against a third party thereunder. Once a Consent
for the sale, conveyance, assignment, transfer and delivery of a Transferred
Asset of the Business is obtained, the Seller shall promptly assign, transfer,
convey and deliver such Transferred Asset of the Business to the Purchaser, and
the Purchaser shall assume the obligations under such Transferred Asset of the
Business assigned, transferred, conveyed and delivered to the Purchaser from
and after the date of sale, conveyance, assignment, transfer and delivery to
the Purchaser pursuant to a transfer agreement which the Parties shall prepare,
execute and deliver in good faith at the time of such transfer, all at no
additional cost to the Purchaser. The Seller shall pay and discharge any and
all out-of-pocket costs of seeking to obtain or obtaining any such Consent
whether before or after the Closing Date. If and when such Consents are
obtained or such other required actions have been taken, the transfer of such
Transferred Asset of the Business shall be effected in accordance with the
terms of this Agreement.


 


8.18.4                  The Purchaser and the Seller acknowledge that,
on the Closing Date, legal title to the Governmental Authorizations and
Registrations set forth on Schedule 8.18.4 shall remain with the Seller
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applicable
regulatory local Laws and, to the extent such Governmental Authorizations and
Registrations can be transferred to the Purchaser or the Purchaser’s Affiliates,
the need for the Consent of the Governmental Authorities to such transfer.
Following the Closing, the Seller shall promptly provide the Purchaser or the
Purchaser’s Affiliates with all reasonable assistance and support for the
preparation, notarization and legalization of the documents required for, and
take all actions to assign and transfer to the Purchaser or its Affiliates,
Governmental Authorizations and Registrations used in or related to the
Business or any Transferred Asset of the Business or required for the ownership
or use of any Transferred Asset of the Business or the operation of the
Business.


 


8.18.5                  Nothing in this Clause 8.18 shall be
deemed a waiver by the Purchaser of its rights to have received on or before
the Closing an effective assignment of all of the Transferred Assets of the
Business or of the covenant of the Seller to obtain all Consents, nor shall
this Clause 8.18 be deemed to constitute an agreement to exclude
from the Transferred Assets of the Business any of the assets described under Clause 2.1.


 


8.18.6                  If the Parties determine that an asset, right or
property that is a Transferred Asset of the Business pursuant to the terms of Clause 2.1
was not transferred to the Purchaser pursuant to Clause 2.1 and the
Ancillary Agreements or licensed to the Purchaser pursuant to
Clause 8.14, then the Seller shall immediately, or shall cause its
Affiliates as necessary, to assign, at no additional consideration, all right,
title and interest in and to such Transferred Asset of the Business to the
Purchaser and take all necessary actions to obtain any necessary Consents to do
so.


 


8.19                           Proposed Transaction Notice and Exercise
of Right of First Negotiation Regarding the Business and the Transferred Assets
of the Business.


 


8.19.1                  Proposed Transaction
Notice.  If at any time during the period
five (5) years after the Closing either the Purchaser desires to (a) sell
or transfer the Business or the majority of the Transferred Assets of the
Business to one or more third parties (whether through one transaction or a
series of transactions) in a transaction or transactions where the Transferred
Assets represent a majority of the assets being sold or transferred by the
Purchaser in such transaction or series of transactions or (b) set up a
new joint venture in India for generic NPNC and biosimilar injectable dosage
forms (excluding oncology) (the “Proposed
Transaction”), then the Purchaser shall, prior to holding
discussions with or soliciting offers from any third party, give written notice
of its desire to enter into such Proposed Transaction (the “Proposed Transaction Notice”) to the
Seller, and provide the
Seller (or an Affiliate of the Seller to be designated by Seller) with the
right to exclusively negotiate with Purchaser during a period of 90 (ninety)
days (the “Exclusivity Period”).  The Seller hereby agrees and acknowledges
that the right of first negotiation of the Seller set forth in this Clause 8.19
shall not include any companies (or partial equity investments therein) or
businesses in India which may be acquired after the Effective Date by the
Purchaser or any of its Affiliates or any joint venture (other than for generic
NPNC or biosimilar injectable forms) that the Purchaser or any of its
Affiliates may establish after the Effective Date with any Person in India.


 


8.19.2                  Exercise of Right of First Negotiation. 
The Seller may exercise its right to enter into the Exclusivity Period
by notifying the Purchaser in writing of its election within fourteen


 


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(14)
days of the Seller’s receipt of the Proposed Transaction Notice.  If Seller
exercises its right to enter into the Exclusivity Period, (i) each
of the Parties shall negotiate in good faith the terms of the Proposed
Transaction, and (ii) if reaching agreement of such terms each of the
Purchaser and the Seller (and its designee) shall take, or cause to be taken,
all actions and do, or cause to be done, all things reasonably necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the Proposed Transaction.


 


8.19.3                  Negotiation with
a Third Party.  If the Seller fails to exercise its right
to enter into the Exclusivity Period or the Parties are unable, despite using
good faith efforts, to agree upon the terms of the Proposed Transaction within
the Exclusivity Period, the Purchaser shall be free to enter into the Proposed
Transaction with a third party; provided, however, that such
third party transaction shall be for a price of not less than the consideration
last offered by the Seller.  In no event
shall the Purchaser consummate a Proposed Transaction until after the
expiration of the period during which the Seller may exercise its right to
enter into the Proposed Transaction and during which the Seller has failed to
exercise such right.


 


8.20                           Offer Notice and Exercise of Right of First
Negotiation Regarding the Seller’s Beta-Lactam API Business.


 


8.20.1                  Offer Notice.  If
at any time during the period five (5) years after the Closing, and provided that the Purchaser
is not in breach of the terms of the API Supply Agreement, the Seller desires
to sell or transfer the business
of researching, developing, testing, manufacturing, selling, marketing and
distributing Beta-Lactam API (the “Beta-Lactam
API Business”) (whether
through one transaction or a series of transactions) in a transaction or
transactions where the Beta-Lactam API Business represents a majority of the
assets being sold or transferred by the Seller in such transaction or series of
transactions (the “Proposed Beta-Lactam API
Transaction”), then the Seller shall, prior to holding discussions
with or soliciting offers from any third party, give written notice
of its desire to enter into such API Proposed Transaction (the “Proposed Beta-Lactam API Transaction Notice”)
to the Purchaser, which notice shall identify the proposed purchase price or other
consideration payable to the Seller in connection with such API Proposed
Transaction (the “Proposed Beta-Lactam API
Purchase Consideration”) and the other material terms and conditions
with respect to the API Proposed Transaction and to exclusively provide to the
Purchaser (or an Affiliate of the Purchaser to be designated by Purchaser) with
the right to exclusively negotiate with the Seller during a period of 90
(ninety) days (the “API  Exclusivity Period”).


 


8.20.2                  Exercise of Right of First Negotiation. 
The Purchaser may exercise its right to enter into the API Exclusivity
Period by notifying the Seller in writing of its election within fourteen (14)
days of the Purchaser’s receipt of the Proposed Beta-Lactam API Transaction
Notice.  If Purchaser exercises its right to enter into the API Exclusivity
Period, (i) each of the Parties shall negotiate in good faith the terms of
the Proposed Beta-Lactam API Transaction, and (ii) if reaching agreement
of such terms each of the Seller and the Purchaser (and its designee) shall
take, or cause to be taken, all actions and do, or cause to be done, all things
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and
regulations to consummate and make effective the Proposed Beta-Lactam API
Transaction.


 


8.20.3                  Sale to Third
Party.  If the Purchaser fails to exercise its
right to enter into the API Exclusivity Period or the Parties are unable,
despite using good faith efforts, to agree upon the terms of the Proposed
Beta-Lactam API Transaction within the API Exclusivity Period, the Seller shall
be free to enter into the Proposed Beta-Lactam API Transaction with a third
party; provided, however, that such third party transaction
shall be for a price of not less than the consideration last offered by the
Purchaser.  In no event shall the Seller
consummate a Proposed Beta-Lactam API Transaction until after the expiration of
the period during which the Purchaser may exercise its right to enter into the
Proposed Beta-Lactam API Transaction and during which the Purchaser has failed
to exercise such right.


 


8.21                           Pharmaceutical Research and Development
Employees.


 


During
the period starting as of the Closing Date and ending as of the earlier of (i) the
2nd (second)
anniversary of the Closing Date or (ii) the date that the Seller has
relocated those employees engaged in research and development activities for
the Other Businesses to a new facility of the Seller, the Purchaser shall allow
such employees of the Other Businesses to use a portion of the first floor of
the pharmaceutical research and development facility included in the Leased
Business Real Property for purposes of conducting research and development
activities for the Other Businesses, subject to the terms and conditions to be
set forth in the Transition Services Agreement. 
Notwithstanding the foregoing, provided that the Seller has used its
best efforts to relocate those employees engaged in research and development
activities for the Other Businesses to a new facility of the Seller prior to
the expiration of such 2 (two) year period and any failure to relocate such
employees of the Other Businesses to such new facility of the Seller is not
attributable to the action or inaction of the Seller, the Seller shall have the
right to extend the use of such portion of the first floor of the
pharmaceutical research and development facility included in the Leased
Business Real Property for an additional period of 1 (one) year.


 


9                                         REPRESENTATIONS AND
WARRANTIES OF SELLER


 


Subject
to the exceptions specifically set forth on the disclosure schedule delivered
by the Seller to the Purchaser concurrently with the execution and delivery of
this Agreement (the “Seller Disclosure Schedule”),
the Seller represents and warrants to the Purchaser as of the Effective Date
and as of the Closing Date as follows:


 


9.1                                 Organization and Good Standing


 


The
Seller is a company duly organized and validly existing under the Laws of
India, and the Seller has all requisite company power and authority to own,
lease and operate the Transferred Assets of the Business and to conduct the
Business. The Seller is duly qualified or licensed to do business in which the
character of the properties it owns, operates or leases or the nature of its
activities makes such qualification or licensure necessary, except to the
extent that the failure to be so qualified or licensed has not had or would not
reasonably be expected to have a Material Adverse Effect.  Clause 9.1 of the Seller
Disclosure Schedule sets forth an accurate and complete list of the Seller’s
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accurate
and complete copies of the articles of association, memorandum of association
or other constituent documents of the Seller, as currently in effect, and the
Seller is not in default under or in violation of any provision thereof.


 


9.2                                 Authority and Enforceability


 


The
Seller has all requisite company power and authority to execute and deliver
this Agreement and each Ancillary Agreement to which the Seller is a party and
to perform its obligations under this Agreement and each such Ancillary
Agreement, subject to obtaining the shareholder approval contemplated in Clause
6.5. The execution, delivery and performance of this Agreement and each
Ancillary Agreement to which the Seller is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Seller and the Seller has made available to
the Purchaser an accurate and complete copy of the approval of the board of the
directors of the Seller containing such authorization. The Seller has duly and
validly executed and delivered this Agreement and, on or prior to the Closing,
the Seller shall have duly and validly executed and delivered each Ancillary
Agreement to which it is a party. This Agreement constitutes, and upon
execution and delivery, each Ancillary Agreement to which the Seller is a party
shall constitute, the valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their terms, except as enforceability may
be limited or affected by applicable bankruptcy, insolvency, moratorium,
reorganization or other Law of general application relating to or affecting
creditors’ rights generally.


 


9.3                                 No Conflict


 


Neither
the execution, delivery and performance of this Agreement or any Ancillary
Agreement by the Seller, nor the consummation of the transactions contemplated
hereby or thereby, shall (a) directly or indirectly (with or without
notice, lapse of time, or both) conflict with, result in a breach or violation
of, constitute a default under, give rise to any right of revocation,
withdrawal, suspension, acceleration, cancellation, termination, modification,
imposition of additional obligations or loss of rights under, result in any
payment becoming due under, or result in the imposition of any Encumbrances
(other than Permitted Encumbrances) on any of the properties or assets of the
Seller (including the Transferred Assets of the Business) under, or otherwise
give rise to any right on the part of any Person to exercise any remedy or
obtain any relief under: (i) the articles of association or memorandum of
association of the Seller or any resolution adopted by the board of directors
or shareholders of the Seller; (ii) except as set forth in Clause 9.3(a)(ii) of
the Seller Disclosure Schedule, any Material Contract (as disclosed on Clause
9.13.1 of the Seller Disclosure Schedule) to which the Seller is a party,
by which the Seller or its properties or assets (including the Transferred
Assets of the Business) is bound or affected or pursuant to which the Seller is
an obligor or a beneficiary; or, (iii) any Law, Judgment or Governmental
Authorization applicable to the Seller or any of its businesses, properties or
assets (including the Transferred Assets of the Business) or (b) except as set forth on Clause 9.3(b) of
the Seller Disclosure Schedule, require the Seller to obtain any Consent or
Governmental Authorization of, give any notice to, or make any filing or
registration with, any Governmental Authority or other Person.


 


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9.4                                 Financial Statements


 


9.4.1                        Attached as Clause 9.4.1 of the
Seller Disclosure Schedule are the following financial statements
(collectively, the “Financial Statements”):


 


9.4.1(a)                                                          audited consolidated and consolidating
balance sheets of the Seller as of 31 March 2007, 31 March 2008 and
31 March 2009 and the related audited consolidated and consolidating
profit and loss account and statements of cash flows for each of the fiscal
years then ended, including in each case any notes thereto, together with the
report thereon of SNB Associates, independent certified public accountants (the
most recent of which, the “Balance Sheet”);


 


9.4.1(b)                                                         an unaudited unconsolidated balance sheet
of the Seller as of 30 September 2009 (the “Interim Balance Sheet”) and the related unaudited
unconsolidated profit and loss account for the 6 (six) months then ended;


 


9.4.1(c)                                                          unaudited carve-out balance sheets of the
Business as of 31 March 2007, 31 March 2008 and 31 March 2009
(the most recent of which, the “Business
Balance Sheet”) and the related unaudited profit and loss account
for each of the fiscal years then ended; and


 


9.4.1(d)                                                         an unaudited carve-out balance sheet of
the Business as of 30 September 2009 (the “Interim Business Balance Sheet”) and the related unaudited
profit and loss account for 6 (six) months then ended.


 


9.4.2                        To the extent related to the Business,
the Financial Statements (including the notes thereto) are correct and complete
in all material respects and are consistent with the books and records of each
of the Seller and the Business, as applicable. To the extent related to the
Business, the Financial Statements (including the notes thereto) have been
prepared in accordance with GAAP, consistently applied throughout the periods
involved (except that the interim financial statements are subject to normal
recurring year-end adjustments, the effect of which shall not, individually or
in the aggregate, be material, and the absence of notes that, if presented,
would not differ materially from the notes to the Balance Sheet or the Business
Balance Sheet, as applicable). To the extent related to the Business, the
Financial Statements fairly present in all material respects the financial
condition, results of operations, changes in shareholders’ equity and cash
flows of the Seller and the Business as of the respective dates and for the
periods indicated therein.


 


9.5                                 Books and Records


 


To
the extent related to the Business, the books of account, minute books, share
record books and other records of the Seller, all of which have been made
available to the Purchaser, are accurate and complete in all material respects, and have been maintained in accordance
with sound business practices and an adequate system of internal controls. The
minute books of the Seller contain accurate and complete records of all
meetings held of, and corporate action taken by, the Seller’s shareholders,
directors and directors’ committees, and no such meeting has 


 


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been
held for which minutes have not been prepared and are not contained in such
minute books. At the time of the Closing, all of such books and records shall
be in the possession of the Seller.


 


9.6                                 Inventory


 


All
Inventory is of a quality and quantity usable and, with respect to finished
goods, salable in the Ordinary Course of Business. None of such Inventory is obsolete,
damaged, defective, distressed, out of specification as set forth in the
Registrations, or of below-standard quality, except that which has been or
shall be written off or written down to net realizable value on the Balance
Sheet, the Business Balance Sheet, the Interim Balance Sheet, the Interim
Business Balance Sheet and the accounting records of the Seller as of the
Closing Date in accordance with the past custom and practice of the Seller. The
values at which such Inventory is carried are in accordance with GAAP. The
quantities of Inventory are reasonable in the Ordinary Course of Business.
Since the date of the Balance Sheet, the Seller has continued to replenish
Inventory in the Ordinary Course of Business and at a cost not exceeding market
prices prevailing at the time of manufacture. Except as set forth on Clause
9.6 of the Seller Disclosure Schedule, all Inventory is maintained at the
Leased Business Real Property and no Inventory is held on a consignment basis.
The Seller does not have any commitments to purchase raw materials other than
in the Ordinary Course of Business.


 


9.7                                 No Undisclosed Liabilities


 


Except
as set forth in the Financial Statements, there are no Liabilities of the
Business that are required to be reflected in a balance sheet of the Business
prepared in accordance with GAAP, other than Liabilities (a) arising after
the date of the Balance Sheet in the Ordinary Course of Business and consistent
with past practices or (b) that constitute Excluded Liabilities.


 


9.8                                 Absence of Certain Changes and Events


 


Since
the date of the Balance Sheet: (a) the Seller has conducted the Business
only in the Ordinary Course of Business; and (b) there has not been any
Material Adverse Effect. Without limiting the generality of the foregoing, since
the date of the Balance Sheet, with respect to the Business or the Transferred
Assets of the Business, as applicable, there has not been any:


 


9.8.1                        amendment or authorization of any
amendment to the Seller’s articles of association or memorandum of association;


 


9.8.2                        except as set forth on Clause 9.8.2
of the Seller Disclosure Schedule, (i) issuance, incurrence, assumption,
guarantee or amendment of any Indebtedness; (ii) loans, advances (other
than routine advances to the Seller’s employees in the Ordinary Course of
Business) or capital contributions to, or investment in, any other Person,
other than in accordance with the Seller’s cash investment policy as described
in Clause 9.8.2(ii) of the Seller Disclosure Schedule; or (iii) entry
into any hedging Contract or other financial agreement or arrangement designed
to protect the Seller against fluctuations in commodities prices or exchange
rates;


 


9.8.3                        except as set forth in Clause 9.8.3
of the Seller Disclosure Schedule, sale, lease, license, pledge or other
disposition of, or Encumbrance (other than a Permitted Encumbrance) 


 


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on,
any of the Transferred Assets of the Business (other than sales of inventory
for fair consideration and in the Ordinary Course of Business);


 


9.8.4                        acquisition, (i) by merger or
consolidation with, or by purchase of all or a substantial portion of the
assets or any stock of, or by any other manner, any business or Person; or (ii) of
any properties or assets related to or in connection with the operation of the
Business that are material to the Seller individually or in the aggregate,
except purchases of inventory for fair consideration and in the Ordinary Course
of Business;


 


9.8.5                        damage to, or destruction or loss of, any
Transferred Assets of the Business with an aggregate value to the Seller or any
of its Affiliates in excess of INR 12,500,000 (Indian Rupee Twelve Million Five
Hundred Thousand), whether or not covered by insurance;


 


9.8.6                        entry into, modification, acceleration,
cancellation, termination, default under, or receipt of notice of an event or
circumstance that (with or without the lapse of time) would give rise to an
acceleration, cancellation, termination or default under, any Material Contract
(or series of related Material Contracts) related to the Business, which
involves a total remaining commitment by or to the Seller or any of its
Affiliates of at least INR 25,000,000 (Indian Rupee Twenty Five Million) or
otherwise outside the Ordinary Course of Business;


 


9.8.7                        (i) except as required by Law,
adoption, entry into, termination or amendment of any Business Employee Plan,
and with respect to the Business Employees, any collective bargaining agreement
or employment, severance or similar Contract; (ii) material increase in
the compensation, allowances or fringe benefits of, or payment of any bonus to,
any director, officer, Business Employee or consultant or other independent
contractor hired or retained by the Seller or any of its Affiliates in
connection with the Business; (iii) amendment or acceleration by the
Seller or any of its Affiliates of the payment, right to payment or vesting of
any compensation or benefits in respect of the Business Employees; (iv) payment
by the Seller or any of its Affiliates of any benefit not provided for as of
the date of this Agreement under any Business Employee Plan; (v) except
for merit increases or bonus payments made in the Ordinary Course of Business,
grant by the Seller or any of its Affiliates of any awards under any bonus,
incentive, performance or other compensation plan or arrangement or benefit
plan, or the removal of existing restrictions in any Business Employee Plan or
Contract or awards made thereunder; or (vi) any action by the Seller or
any of its Affiliates other than in the Ordinary Course of Business to fund or
in any other way secure the payment of compensation or benefits under any
Business Employee Plan;


 


9.8.8                        cancellation, compromise, release or
waiver of any claims or rights (or series of related claims or rights) related
to the Business or the Transferred Assets of the Business with a value to the
Seller or any of its Affiliates exceeding INR 12,500,000 (Indian Rupee Twelve
Million Five Hundred Thousand)or otherwise outside of the Ordinary Course of
Business;


 


9.8.9                        settlement or compromise in connection
with any Proceeding involving the Business or the Transferred Assets of the
Business exceeding INR 12,500,000 (Indian Rupee Twelve Million Five Hundred
Thousand);


 


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9.8.10                  capital expenditure or other expenditure by the
Seller or any of its Affiliates with respect to property, plant or equipment
for use in the Business in excess of INR 150,000,000 (Indian Rupee One Hundred
Fifty Million) in the aggregate or in excess of INR 75,000,000 (Indian Rupee
Seventy Five Million) in the aggregate for the period between the Effective
Date and the Closing;


 


9.8.11                  change in the Seller’s accounting principles,
methods or practices or investment practices, including any changes as were
necessary to conform with GAAP;


 


9.8.12                  acceleration or delay in the payment of accounts
payable or other Liabilities or in the collection of notes or accounts
receivable;


 


9.8.13                  increase in the level of the delinquent accounts
payable beyond that which is incurred in the Ordinary Course of Business and is
consistent with the level in the Financial Statements;


 


9.8.14                  making or rescission by the Seller of any Tax
election, settlement or compromise of any Tax Liability or amendment of any Tax
Return;


 


9.8.15                  act or omission that would impair or otherwise
adversely affect the Business, any of the Transferred Assets of the Business or
Assumed Liabilities or the performance by the Seller and its Affiliates of
their obligations under this Agreement or any Ancillary Agreement; or


 


9.8.16                  agreement by the Seller or any of its
Affiliates, whether in writing or otherwise, to do any of the foregoing.


 


9.9                                 Assets


 


Clause 9.9 of the Seller Disclosure Schedule sets
forth a complete and accurate description of the ownership, use, type and
location of the Transferred Assets of the Business. Except as set forth on Clause 9.9
of the Seller Disclosure Schedule, the Seller has good and marketable title to
all of the Transferred Assets of the Business, free and clear of all
Encumbrances (other than the Permitted Encumbrances), or in the case of leased
properties and assets, valid leasehold interests or licenses in such leased or
licensed properties or assets. Except as set forth on Clause 9.9 of
the Seller Disclosure Schedule, the Seller is in possession of all of the
Transferred Assets of the Business. Except as set forth on Clause 9.9
of the Seller Disclosure Schedule, the Transferred Assets of the Business
constitute all of the properties and assets used in or necessary to conduct the
Business as currently conducted by the Seller and its Affiliates.  Each tangible asset included in the
Transferred Assets of the Business is in good operating condition and repair,
ordinary wear and tear excepted, is free from latent and patent defects, is
suitable for the purposes for which it is being used and is currently planned
to be used by the Seller or its Affiliates and has been maintained in
accordance with normal industry practice. The Seller or its Affiliates have in
full force and effect maintenance Contracts with independent specialist
contractors in respect of all Transferred Assets of the Business for which it
is normal or prudent to have maintenance Contracts and in respect of all
Transferred Assets of the Business for which the Seller or any of its
Affiliates are obliged to maintain or repair such Transferred Assets of the
Business under a leasing or similar Contract.


 


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9.10                           Real Property


 


9.10.1                  The Seller has no Owned Business Real Property,
nor any outstanding options, rights of first offer or rights of first refusal
to purchase Real Property which is used, or to be used, in the conduct of the
Business.


 


9.10.2                  Clause 9.10.2 of the Seller Disclosure Schedule sets forth an
accurate and complete description, by street address, of the subject leased
real property, the date and term of the lease, sublease or other occupancy
right, the names of the parties thereto, each amendment thereto and the
aggregate annual rent payable thereunder, of the Leased Business Real Property.
The Seller has delivered to the Purchaser accurate and complete copies of all
leases relating to the Leased Business Real Property. With respect to each such
lease, neither the Seller nor any of its Affiliates has exercised or given any
notice of exercise of, nor has any lessor or landlord exercised or given any
notice of exercise by such party of, any option, right of first offer or right
of first refusal contained in any such lease. The rental set forth in each
lease of the Leased Business Real Property is the actual rental being paid, and
there are no separate agreements or understandings with respect to the same.
Each lease of the Leased Business Real Property grants the Seller or one of its
Affiliates the exclusive right to use, occupy and/or collect and store raw
materials at, the demised premises thereunder, as applicable.


 


9.10.3                  The Seller or one of its Affiliates has valid
leasehold interests in the Leased Business Real Property, in each case, free
and clear of all Encumbrances (other than Permitted Encumbrances) except as
described in Clause 9.10.3 of the Seller Disclosure Schedule.


 


9.10.4                  Except as set forth on Clause 9.10.4 of
the Seller Disclosure Schedule, the Seller or its Affiliate, as applicable, is
in peaceful and undisturbed possession of the Leased Business Real Property.
There are no contractual or legal restrictions that preclude or restrict the
ability of the Seller or its Affiliates to use such Leased Business Real Property
for the purposes for which they are currently being used and currently planned
to be used by the Seller or its Affiliates. Immediately following the Closing,
subject to the Seller’s paying the transfer charges levied by any landlord of
the Leased Business Real Property, the Purchaser or its Affiliates shall have
the ability to use the Leased Business Real Property for the purposes that the
Seller or its Affiliates are currently using and are permitted to use the
Leased Business Real Property and the purposes for which the Seller or its
Affiliates is currently planning on using the Leased Business Real Property.


 


9.10.5                  Neither the Seller nor any of its Affiliates has
subleased, licensed or otherwise granted to any Person the right to use or
occupy any portion of the Leased Business Real Property, and neither Seller nor
any of its Affiliates has received notice, and the Seller and each applicable
Affiliate has no Knowledge of any claim of any Person to the contrary. Except
as set forth on Clause 9.10.5 of the Seller Disclosure Schedule,
there are no Contracts outstanding for the sale, exchange, Encumbrance, lease
or transfer of any of the Leased Business Real Property, or any portion
thereof.


 


9.10.6                  Use of the Leased Business Real Property for the
various purposes for which they are presently being used is permitted as of
right under all applicable Laws, including Planning and Zoning Laws. All
buildings, structures, fixtures and other improvements included in the Leased
Business Real Property (collectively, the “Improvements”)
are in


 


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compliance in
all material respects with all applicable Laws, including those pertaining to
health and safety, zoning, building and the disabled. No part of any
Improvement encroaches on any Real Property not included in the Leased Business
Real Property, and there are no Improvements primarily situated on adjoining
Real Property which encroach on any part of the Leased Business Real Property.
Each parcel of Leased Business Real Property (a) abuts on and has direct
vehicular access to an improved public road or has access to an improved public
or municipal road via a permanent, irrevocable, appurtenant easement improved
with a road benefiting such parcel of Leased Business Real Property and
comprising a part of the Leased Business Real Property; (b) is supplied
with public or municipal or quasi-public utilities and other services appropriate
for the operation of the Improvement located on such parcel and the operation
of the Business thereon; (c) is not located within any flood plain or area
subject to wetlands regulation or any similar restriction; and (d) is
contiguous. To the Knowledge of the Seller, there is no existing plan to modify
or realign any street or highway or, to the Knowledge of the Seller, any
proposed plan to modify or realign any street or highway or any proposed or
threatened eminent domain or other Proceeding that, in any case would result in
the taking of all or any part of any Leased Business Real Property or that
would prevent or hinder the continued use and enjoyment of any Leased Business
Real Property as used in the conduct of the Business.


 


9.10.7      The Improvements have been constructed in
all material respects in accordance with applicable Laws and are structurally
sound, are in good operating condition and repair, ordinary wear and tear
excepted, are free from latent and patent defects, are suitable for the purposes
for which they are being used and are currently planned to be used by the
Seller or its Affiliates and have been maintained in accordance with normal
industry practice. The Leased Business Real Property constitutes all of the
Real Property necessary to conduct the manufacture of the products of the
Business (other than those products of the Business which are manufactured by
third parties pursuant to Contracts) as conducted and as currently planned to
be conducted by the Seller and its Affiliates.


 


9.10.8      All certificates of occupancy and
completion and other Consents (collectively, the “Real Property Permits”) of all Governmental Authorities, or
any other Person having jurisdiction over the Leased Business Real Property
that are required or appropriate for the Purchaser or its Affiliates to use or
occupy the Leased Business Real Property or operate the Business as currently
conducted thereon, have been issued and are in full force and effect. Clause 9.10.8
of the Seller Disclosure Schedule sets forth an accurate and complete list of
all Real Property Permits held by the Seller or its Affiliates with respect to
each parcel of the Leased Business Real Property. The Seller has made available
to the Purchaser accurate and complete copies of all Real Property Permits.
Neither the Seller not any of its Affiliates has received any notice from any
Governmental Authority or other Person having jurisdiction over the Leased
Business Real Property threatening a suspension, revocation, modification or
cancellation of any Real Property Permit and no event has occurred or
circumstance exists that could reasonably be expected to give rise to the
issuance of any such notice or the taking of any such action. Except as set
forth on Clause 9.10.8 of the Seller Disclosure Schedule, the Real
Property Permits are transferable to the Purchaser or its Affiliates without
the Consent of the issuing Governmental Authority or any other Person, no
disclosure, filing or other action by the Seller or any of its Affiliates is
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transfer and
neither the Purchaser nor any of its Affiliates shall be required to assume any
additional Liabilities under the Real Property Permits as a result of such
transfer.


 


9.10.9      The parcels constituting the Leased
Business Real Property are assessed separately from all other adjacent property
not constituting the Leased Business Real Property for purposes of real estate
Taxes assessed to, or paid by, the Seller or any of its Affiliates. There are
no Taxes, assessments, fees, charges or similar costs or expenses imposed by
any Governmental Authority, association or other Person having jurisdiction
over the Leased Business Real Property with respect to any Leased Business Real
Property or portion thereof that are delinquent and there is no pending or, to the
Knowledge of the Seller, threatened increase or special assessment or
reassessment of any such Taxes, costs or expenses.


 


9.10.10    The Leased Business Real Property is not
reserved for any public purpose.


 


9.10.11    The Seller has received all Consents and
no objection certificates (each, an “NOC”)
required for the use of the Leased Business Real Property for industrial
purposes including Change of Land Use Certificates from the appropriate
Governmental Authority, factory Consents, environmental Consents, Consents from
the Gram Panchayat  and other local
statutory and municipal bodies as may be required from time to time and has
performed all conditions imposed by such NOC’s and Consents and the NOC’s and
Consents are valid and subsisting.


 


9.10.12    There are no pending Proceedings against
the Seller or any Person on behalf of the Seller, by any Governmental Authority
with respect to the use of the Leased Business Real Property or any part
thereof for non-agricultural purposes, or with respect to the non-payment of
conversion fees for non-agricultural use or with respect to the conversion of
the Leased Business Real Property from agricultural land to non-agricultural
land.


 


9.10.13    No notices are pending against the Seller
or any Person on behalf of the Seller relating to the Leased Business Real
Property either from any Governmental Authority under the provisions of the
Municipal Corporation Act, the Epidemic Diseases Act, the Land Acquisition Act,
the Town Planning Act, the Defence of India Act, the Factories Act, the
Industrial Disputes Act or other applicable Laws (including any notice for
acquisition or requisition of the Leased Business Real Property or any part
thereof).


 


9.10.14    All Taxes, outgoings and all other
payments due and payable in respect of the Leased Business Real Property,
including property Taxes and electricity and water charges, have been paid in
full.


 


9.11         Intellectual Property


 


9.11.1      The Purchased Intellectual Property,
together with the rights granted to the Purchaser pursuant to Clause 8.15,
includes all material rights to Intellectual Property owned by the Seller or
any of its Affiliates (the “Owned
Intellectual Property”) for the conduct of the Business as conducted
as of the date of this Agreement.


 


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9.11.2      The Seller or one of its Affiliates owns
all right, title and interest in and to or otherwise possesses valid rights in
the Purchased Intellectual Property.  To
the Seller’s Knowledge, the Purchased Intellectual Property shall not be lost,
or rendered liable to termination, by virtue of the transactions contemplated
by this Agreement.


 


9.11.3      To the Seller’s Knowledge, the Seller or
its Affiliates are the sole and exclusive owners of, and have valid title to,
free and clear of all Encumbrances (other than Permitted Encumbrances), the
Owned Intellectual Property.  Immediately
following the Closing, the Purchaser or its Affiliates shall be the sole and
absolute owners of, and shall have valid title to, free and clear of all
Encumbrances (other than Permitted Encumbrances), the Owned Intellectual
Property, and shall have the full right to use, license, assign and transfer
the Owned Intellectual Property in the same manner and on the same terms and
conditions that the Seller or its Affiliates had immediately prior to the
Closing.


 


9.11.4      Except as set forth on Clause 9.11.4
of the Seller Disclosure Schedule, the Seller has not licensed or otherwise
granted any rights in any material Owned Intellectual Property to any Person.


 


9.11.5      There are no patents licensed by the
Seller which are used in the Business.


 


9.11.6      Clause 9.11.6 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all patent, copyright and trademark
registrations and applications with any Governmental Authority included in the
Purchased Intellectual Property which are in Seller’s name or that of any of
Seller’s Affiliates (the “Registered Owned
Intellectual Property”).  To
the Knowledge of Seller, (a) all registrations and applications with any
Governmental Authority with respect to the Registered Owned Intellectual
Property have been timely and duly filed, prosecution for such applications has
been attended to and all maintenance and related fees have been paid and (b) no
event has occurred or circumstance exists that could render the ownership
rights of the Seller or any of its Affiliates in and to any of the Registered
Owned Intellectual Property null, void, invalid or unenforceable.  The Registered Owned Intellectual Property is
registered in or assigned to the legal name of the Seller or the applicable
Affiliate of the Seller owning such Registered Owned Intellectual Property in
accordance with applicable Laws.


 


9.11.7      Neither Seller nor any of its Affiliates
has agreed to indemnify, defend or otherwise hold harmless any other Person
with respect to Losses resulting or arising from the ownership or use of the
Purchased Intellectual Property, except pursuant to those Contracts listed on Clause 9.11.7
of the Seller Disclosure Schedule.


 


9.11.8      Except as specified in Clause 9.11.8
of the Seller Disclosure Schedule:


 


9.11.8(a)                 no Proceedings have been instituted or, to the
Seller’s Knowledge are pending or threatened in writing against the Seller or
any of its Affiliates, that challenge the right of the Seller or any of its
Affiliates with respect to the use or ownership of the Purchased Intellectual
Property;


 


9.11.8(b)                 no opposition, re-examination, revocation,
nullity suit or other Proceeding is or has been pending involving the Seller or
any of its 


 


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Affiliates with
respect to the Purchased Intellectual Property or, to the Seller’s Knowledge,
threatened in writing, in which the scope, validity, or enforceability of any
of Purchased Intellectual Property is being or has been challenged;


 


9.11.8(c)                 neither the Seller nor any of its
Affiliates have received any written notice in the last 3 (three) years
alleging, and otherwise have no Knowledge, that the Seller or any of its
Affiliates with respect to the conduct of the Business infringes the
Intellectual Property rights of any other Person anywhere in the world.


 


9.11.8(d)                 to the Seller’s Knowledge, no legal or natural
Person has infringed any of the Purchased Intellectual Property in the last 3
(three) years, or is currently doing so, except to the extent such infringement
would not have a material adverse effect.


 


9.11.8(e)                 to the Seller’s Knowledge, there has been
no misappropriation of any trade secrets or other material confidential
Intellectual Property rights used in connection with the Business by any
Person, except to the extent such misappropriation would not have a material
adverse effect.


 


9.11.9      The Seller and each of its applicable
Affiliates has taken commercially reasonable steps necessary to protect and
preserve each item of material Owned Intellectual Property, including the
know-how, trade secrets and other confidential business information included in
any material Owned Intellectual Property. The Seller has taken commercially
reasonable steps necessary to comply with all applicable obligations to protect
the confidentiality of information provided to the Seller or any of its
Affiliates by any other Person. To the Knowledge of the Seller, no current or
former employees, consultants, third party manufacturers or other independent
contractors of the Business have violated any trade secrets or confidential
business information included in the material Owned Intellectual Property.


 


9.11.10    Neither the Seller nor any of its
Affiliates is currently required to pay any royalty or similar charge to any
Person in respect of Seller’s use of any of the Purchased Intellectual
Property.


 


9.11.11    To the Seller’s Knowledge, none of the
Purchased Intellectual Property was developed using any Governmental Authority
or university funding or facilities, nor was it obtained from a Governmental
Authority or university, except to the extent it would not have a Material Adverse
Effect. Neither the Seller nor any of its Affiliates is a member of, and
neither the Seller nor any of its Affiliates is obligated to license or
disclose any Material Purchased Intellectual Property to any official or de
facto standards setting or similar organization or to any such organization’s
members.


 


9.12         Software


 


9.12.1      Clause 9.12.1 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all material Purchased Software
necessary to conduct the Business, excluding any off-


 


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the-shelf
software and/or other commercially available Software which can be licensed or
procured by Purchaser for less than $25,000 (the “Material Purchased Software”).


 


9.12.2      The Seller has taken commercially
reasonable steps to assure that all Software and data residing on its computer
networks is free of viruses and other disruptive technological means, except to
the extent it would not have a material adverse effect. To the Seller’s
Knowledge, the Material Purchased Software does not contain any computer code
or other mechanism of any kind designed to disrupt, disable or harm in any
manner the operation of any Software or hardware or other business processes or
to misuse, gain unauthorized access to or misappropriate any business or
personal information, including worms, bombs, backdoors, clocks, timers, or
other disabling device code, or designs or routines that cause the Software or
information to be erased, inoperable, or otherwise incapable of being used,
either automatically or with passage of time or upon command, except in each
case to the extent it would not have a material adverse effect.


 


9.13         Contracts


 


9.13.1      Clause 9.13.1 of the Seller Disclosure Schedule, which
such Schedule is arranged and denotes the subclauses corresponding to the
numbered subclauses in this Clause 9.13.1, sets forth an accurate
and complete list of each of the following Contracts (or group of related
Contracts) to which the Seller or any of its Affiliates is a party, by which
the Seller, any of its Affiliates, or any of the Transferred Assets of the
Business is bound or affected or pursuant to which the Seller or any of its
Affiliates is an obligor or a beneficiary, that is related to the Business
(collectively, the “Material Contracts”):


 


9.13.1(a)                 is for the purchase of materials,
supplies, goods, services, equipment or other assets, the performance of which
extends over a period of more than 1 (one) year or that otherwise involves an
amount or value in excess of INR 5,000,000 (Indian Rupee Five Million);


 


9.13.1(b)                 is for the sale of products or other
assets, the performance of which extends over a period of more than 1 (one)
year or that otherwise involves an amount or value in excess of INR 5,000,000
(Indian Rupee Five Million) and is (a) exclusively related to the Business
or (b) used in the Business;


 


9.13.1(c)                 is for capital expenditures in excess of
INR 5,000,000 (Indian Rupee Five Million);


 


9.13.1(d)                 is a lease or sublease of any Real
Property or personal property, or that otherwise affects the ownership of,
leasing of, title to, or use of, any Real Property or personal property (other
than personal property leases and conditional sales agreements having a value
per item or aggregate payments of less than INR 1,000,000 (Indian Rupee One
Million) and a term of less than 1 (one) year);


 


9.13.1(e)                 is a license or other Contract listed on Clause
9.11.4 of the Seller Disclosure Schedule under which the Seller or any of
its Affiliates has 


 


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licensed or
otherwise granted rights in any Purchased Intellectual Property to any Person;


 


9.13.1(f)                  is for the employment of, or receipt of
any services from, any Business Employee, or any other Person whose services
relate directly to the Business, on a full-time, part-time, consulting or other
basis providing annual compensation in excess of INR 500,000 (Indian Rupee Five
Hundred Thousand);


 


9.13.1(g)                 is for benefits provided to Business
Employees of the Seller, including insurance funded pensions and third party
administration Contracts;


 


9.13.1(h)                 provides for severance, termination or
similar pay to the Business Employees;


 


9.13.1(i)                  provides for a loan or advance of any
amount to any Business Employee, other than advances for travel and other
appropriate business expenses in the Ordinary Course of Business;


 


9.13.1(j)                  is a joint venture, partnership or other
Contract involving any joint conduct or sharing of any business, venture or
enterprise, or a sharing of profits or losses or pursuant to which the Seller
or any of its Affiliates has any ownership interest in any other Person or
business enterprise;


 


9.13.1(k)                 contains any covenant limiting the right
of the Seller or any of its Affiliates to engage in the Business or to compete
(geographically or otherwise) with any Person in conducting the Business,
granting any exclusive rights to make, sell or distribute the products of the
Business, granting any “most favoured nations” or similar rights with respect
to the products of the Business, or otherwise prohibiting or limiting the right
of the Seller or any of its Affiliates to make, sell or distribute any products
of the Business;


 


9.13.1(l)                  contains an agreement by the Seller or
any of its Affiliates to indemnify, defend or otherwise hold harmless any
Person with respect to any Losses resulting or arising from the operation of
the Business;


 


9.13.1(m)                involves payments based, in whole or in
part, on profits, revenues, fee income or other financial performance measures
of the Seller or the Business;


 


9.13.1(n)                 involves a power of attorney granted by
or on behalf of the Seller or any of its Affiliates;


 


9.13.1(o)                 is a written warranty, guaranty or other
similar undertaking with respect to contractual performance extended by the
Seller or any of its Affiliates other than in the Ordinary Course of Business;


 


9.13.1(p)                 is a settlement agreement with respect to
any pending or threatened Proceeding entered into by the Seller or any of its
Affiliates within 3 


 


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(three) years
prior to the date of this Agreement exceeding INR 1,000,000 (Indian Rupee One
Million);


 


9.13.1(q)                 was entered into other than in the
Ordinary Course of Business and that involves an amount or value in excess of  INR 1,000,000 (Indian Rupee One Million)
or contains or provides for an express undertaking by the Seller or any of its
Affiliates to be responsible for consequential damages; or


 


9.13.1(r)                  is otherwise material to the Business,
the Transferred Assets of the Business or the Assumed Liabilities or under
which the consequences of a default or termination could impair the ability of
the Seller or any of its Affiliates to perform any of its obligations under
this Agreement or any Ancillary Agreement or otherwise have a material adverse
affect on the Business, any of the Transferred Assets of the Business or
Assumed Liabilities.


 


9.13.2      The Seller has made available to the
Purchaser an accurate and complete copy (in the case of each written Material
Contract) or an accurate and complete written summary (in the case of each oral
Material Contract) of each Material Contract required to be listed in Clause 9.13.1
of the Seller Disclosure Schedule. With respect to each such Material Contract
required to be listed:


 


9.13.2(a)                 to the Knowledge of Seller, each Material
Contract is legal, valid, binding, enforceable and in full force and effect
except to the extent it has previously expired in accordance with its terms or
its enforceability may be limited or affected by applicable bankruptcy,
insolvency, moratorium, reorganization or other Law of general application
relating to or affecting creditors’ rights generally;


 


9.13.2(b)                 the Seller, its Affiliates, and, to the
Knowledge of the Seller, the other party to the Material Contract have
performed all of their respective obligations in all material respects required
to be performed under the Material Contract;


 


9.13.2(c)                 except as set forth on Clause 9.13.2(c) of
the Seller Disclosure Schedule, neither the Seller, any of its Affiliates nor,
to the Knowledge of the Seller, any other party to the Material Contract, is in
material breach or default under the Material Contract and no event has
occurred or circumstance exists that (with or without notice, lapse of time, or
both) would constitute a material breach or default by the Seller, any of its
Affiliates, or, to the Knowledge of the Seller, by any such other party, or
give rise to any right of revocation, withdrawal, suspension, acceleration,
cancellation, termination, modification, imposition of additional obligations
or loss of rights under, result in any payment becoming due under, result in
the imposition of any Encumbrances (other than Permitted Encumbrances) on any
of the Transferred Assets of the Business under, or otherwise give rise to any
right on the part of any Person to exercise any remedy or obtain any relief
under the 


 


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Material
Contract nor has the Seller or any of its Affiliates given or received notice
or other communication alleging the same; and


 


9.13.2(d)                 the Material Contract is not under negotiation
(nor has written demand for any renegotiation been made), to the Knowledge of
Seller, no party has repudiated any portion of the Material Contract.


 


9.13.3      To the Knowledge of the Seller, neither
the Seller nor any director, agent, employee or consultant or other independent
contractor of the Seller or any of its Affiliates is a party to, or is
otherwise bound by, any Contract, including any confidentiality,
non-competition or proprietary rights agreement, with any other Person that in
any way would materially affect (a) the performance of his or her duties
for the Seller or its Affiliates in connection with the Business; (b) his
or her ability to assign to the Seller or its Affiliates rights to any
invention, improvement, discovery or information relating to the Business; or (c) the
ability of the Seller or its Affiliates to conduct the Business as currently
conducted or as currently proposed to be conducted.


 


9.13.4      Except as set forth in Clause 9.13.4
of the Seller Disclosure Schedule, neither the Seller nor any of its Affiliates
is, nor has the Seller or any of its Affiliates at any time within the past 3
(three) years, been party to any Contract with or derived any revenue from (a) any
Governmental Authority; (b) any prime contractor to any Governmental
Authority; or (c) any subcontractor with respect to any Contract described
in clause (a) or (b).


 


9.14         Indebtedness Contracts


 


9.14.1      Clause 9.14.1 of the Seller Disclosure Schedule sets
forth an accurate and complete list of each Contract which is a mortgage,
indenture, guarantee, loan or credit agreement, note, intercreditor agreement,
security agreement, deed of hypothecation, pledge agreement, bilateral
agreement, debenture, bond, letter of credit or other Contract relating to Indebtedness
of the Seller or its Affiliates, other than accounts receivables and payables
in the Ordinary Course of Business (the “Indebtedness
Contracts”), including: (a) the Seller or Seller Affiliate
party thereto; (b) all other Persons party to such Indebtedness Contract; (c) the
respective principal amounts currently outstanding thereunder; (d) any
Transferred Assets of the Business which form any part of the collateral under
such Indebtedness Contracts and the location of such collateral; and (e) any
Releases or Consents that must be obtained or notices given under such
Indebtedness Contracts in connection with the transactions contemplated by this
Agreement or the Ancillary Agreements. The Seller has made available to the
Purchaser accurate, complete and final executed versions of all the
Indebtedness Contracts of the Seller and its Affiliates for review.


 


9.14.2      With respect to each Indebtedness
Contract: (a) the Indebtedness Contract is legal, valid, binding,
enforceable and in full force and effect except to the extent it has previously
expired in accordance with its terms or as enforceability may be limited or
affected by applicable bankruptcy, insolvency, moratorium, reorganization or
other Law of general application relating to or affecting creditors’ rights
generally; (b) the Seller and its Affiliates, and, to the Knowledge of the
Seller, the other parties to the Indebtedness Contract have performed all of
their respective obligations in all material respects required to be performed
under the Indebtedness Contract; and (c) except as 


 


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set forth on Clause 9.14.2(c) of
the Seller Disclosure Schedule, none of the Seller, any of its Affiliates, nor,
to the Knowledge of the Seller, any other party to the Indebtedness Contract is
in breach or default under the Indebtedness Contract and no event has occurred
or circumstance exists that (with or without notice, lapse of time or both)
would constitute a breach or default by the Seller, any of its Affiliates, or,
to the Knowledge of the Seller, by any such other party, or give rise to any
right of revocation, withdrawal, suspension, acceleration, cancellation,
termination, modification, imposition of additional obligations or loss of
rights under, result in any payment becoming due under, result in the
imposition of any Encumbrances (other than Permitted Encumbrances) on any of
the Transferred Assets of the Business under, or otherwise give rise to any
right on the part of any Person to exercise any remedy or obtain any relief
under, the Indebtedness Contract, nor has the Seller, any of its Affiliates,
nor to the Knowledge of the Seller, has any other party to the Indebtedness
Contracts given or received notice or other communication alleging the same.


 


9.14.3      The funds made available to the Seller or
its Affiliates pursuant to the Indebtedness Contracts have been applied or
utilized for the purpose for which they were raised or obtained.


 


9.14.4      Except as set forth on Clause 9.14.4
of the Seller Disclosure Schedule, none of the Indebtedness Contracts affect or
shall affect the transactions contemplated by this Agreement or the Ancillary
Agreements or the rights of the Purchaser to the Transferred Assets of the
Business pursuant to the consummation of the transactions contemplated by this
Agreement and the Ancillary Agreements.


 


9.14.5      No event or circumstance has occurred or
circumstance exists that (with or without notice, lapse of time, or both) would
or could lead to an event of default or breach under the Indebtedness Contracts
which would affect the transactions contemplated by this Agreement or the
Ancillary Agreements or the rights of the Purchaser to the Transferred Assets
of the Business following the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements.


 


9.14.6      Neither the Seller nor any of its
Affiliates has materially defaulted in any payment obligations, including
repayment of amounts due to any lenders or other providers of funds provided
pursuant to the Indebtedness Contracts, including financial institutions, banks
and debenture holders.


 


9.14.7      Except as set forth on Clause 9.14.7
of the Seller Disclosure Schedule, neither the Seller not any of its Affiliates
has been required to provide or agreed to provide or provided any of the
Transferred Assets of the Business as security in respect of the loans availed
by them.


 


9.15         Tax Matters


 


9.15.1      The Seller has timely filed all Tax
Returns that it was required to file in accordance with applicable Laws, and
each such Tax Return is accurate and complete in all material respects. The
Seller has timely paid all Taxes due with respect to the taxable periods
covered by such Tax Returns and all other Taxes (whether or not shown on any
Tax Return). Except as set forth in Clause 9.15.1 of the Seller
Disclosure Schedule, no claim 


 


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has ever been
made by a Governmental Authority in a jurisdiction where the Seller does not
file a Tax Return that it is or may be subject to taxation by that
jurisdiction. The Seller has not requested an extension of time within which to
file any Tax Return which has not since been filed. The Seller has made
available to the Purchaser accurate and complete copies of all Tax Returns of
the Seller (and their predecessors) for the financial years ended March 31
2007, 2008 and 2009.


 


9.15.2      The Seller does not have and nor shall it
have additional Liability for Taxes with respect to any Tax Return which was
required by applicable Laws to be filed on or before the Closing Date, other
than those reflected as Liabilities in line items on the Balance Sheet. The
amounts reflected as Liabilities in line items on the Balance Sheet and in the
notes to accounts under the head “contingent liabilities” for all Taxes are
adequate to cover all unpaid Liabilities for all Taxes, whether or not
disputed, that have accrued with respect to, or are applicable to, the period
ended on and including the Closing Date. Since the date of the Balance Sheet,
the Seller has not incurred any Liability for Taxes arising from extraordinary
gains or losses, as that term is used in GAAP.


 


9.15.3      All Taxes that the Seller is required by
Law to withhold or collect and amounts required to be withheld or collected in
connection with any amount paid or owing to any employee, independent
contractor, creditor, shareholder, or other Person, have been duly withheld or
collected. To the extent required by applicable Law, all such amounts have been
paid over to the proper Governmental Authority.


 


9.15.4      To the Knowledge of the Seller, no
Governmental Authority shall assess any additional Taxes for any period for
which Tax Returns have been filed. Except as set forth in Clause 9.15.4
of the Seller Disclosure Schedule, no federal, state, local or other
Proceedings are pending or being conducted, nor has the Seller received any: (a) notice
from any Governmental Authority that any such audit or other Proceeding is
pending, threatened or contemplated; (b) request for information related
to Tax matters; or (c) notice of Tax dues or proposed adjustment for any
amount of Tax proposed, asserted or assessed by any Governmental Authority
against the Seller, with respect to any Taxes due from or with respect to the
Seller or any Tax Return filed by or with respect to the Seller. The Seller has
not granted or been requested to grant any waiver of any statutes of
limitations applicable to any material claim for Taxes or with respect to any
material Tax assessment or Tax dues (including Tax demands raised, whether on
completion or assessment, including interest and penalty, if any). The Seller
has delivered to the Purchaser accurate and complete copies of all examination
reports and statements of dues assessed against or agreed to by the Seller
since last day of tax year 6 (six) years prior.


 


9.15.5      All Tax deficiencies that have been
claimed, proposed or asserted in writing against the Seller has been fully paid
or finally settled, and no issue has been raised in writing in any examination
which, by application of similar principles, could be expected to result in the
proposal or assertion of a Tax deficiency for any other year not so examined.


 


9.15.6      No position has been taken on any Tax
Return with respect to the Business or the operations of the Seller for a
taxable period for which the statute of limitations for the assessment of any
Taxes with respect thereto has not expired that is contrary to any publicly
announced position of a taxing authority or that is substantially similar to
any


 


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position which
a taxing authority has successfully challenged in the course of an examination
of a Tax Return of the Seller. The Seller has disclosed on its federal income
Tax Returns all positions taken therein that could give rise to a substantial
understatement of income Tax.


 


9.15.7                  Except as set forth on Clause 9.15.7
of the Seller Disclosure Schedule, none of the Transferred Assets of the
Business are subject to any prior agreement or arrangement, the effect of
which: (a) results in the Seller or any of its Affiliates, as applicable,
not being treated as the owner of such Transferred Assets of the Business for
income Tax purposes, or (b) shall or may result in the denial or
withdrawal of benefits or exemptions being availed of by the Purchaser
following the consummation of the transactions contemplated by this Agreement
and the Ancillary Agreements.


 


9.15.8                  Except as set forth in Clause 9.15.8
of the Seller Disclosure Schedule, there are no Encumbrances (other than
Permitted Encumbrances) upon any of the Transferred Assets of the Business
arising from any failure or alleged failure to pay any Tax.


 


9.15.9                  Clause 9.15.9 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all material elections with respect to
Taxes affecting the Seller or any of the Transferred Assets of the Business.
There are no outstanding rulings of, or requests for rulings with, any Tax
authority expressly addressed to the Seller or any Affiliate of the Seller that
are, or if issued would be, binding upon the Purchaser for any Tax period or
portion thereof beginning after the Closing Date.


 


9.16                           Employee Benefit Matters


 


9.16.1                  Clause 9.16.1 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all Employee Plans maintained by or
participated in by the Seller with respect to the Business Employees, including
the applicable Person with whom the Seller maintains each Employee Plan (each,
a “Business Employee Plan”).


 


9.16.2                  No Business Employee has been granted
stock options, restricted stock, restricted stock units or other forms of
equity compensation by the Seller or its Affiliates as part of its employee
benefits.


 


9.16.3                  The Seller has made available to the
Purchaser an accurate and complete copy of: (a) each writing that sets
forth the terms of each Business Employee Plan, including plan documents, plan
amendments, any related trusts, all summary plan descriptions and other
summaries and descriptions furnished to participants and beneficiaries; (b) all
personnel, payroll and employment manuals and policies of the Seller relating
to or covering the Business Employees; (c) a written description of any
Business Employee Plan that is not otherwise in writing; (d) all insurance
policies purchased by or to provide benefits under any Business Employee Plan; (e) all
third party administrative programs or agreements related to any Business
Employee Plan; (f) all reports submitted for the past 3 (three) years by
third party administrators, actuaries, investment managers, trustees,
consultants or other independent contractors with respect to any Business
Employee Plan and financial statements disclosing Liability for all obligations
owed under any Business Employee Plan; (g) all notices that were given by
the Seller or any Business Employee Plan to any Governmental Authority or any
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pursuant to any
applicable Laws for the past 3 (three) years; and (h) all notices that
were given by any Governmental Authority to the Seller or any Business Employee
Plan for the past 3 (three) years.


 


9.16.4                  The Seller does not provide health or
welfare benefits for any retired or former employee, or their beneficiaries or
dependents, nor is it obligated to provide health or welfare benefits to any
active employee following such employee’s retirement or other termination of
service.


 


9.16.5                  Each Business Employee Plan is and at all
times has been maintained, funded, operated and administered, and the Seller
has performed all of its obligations under each Business Employee Plan, in each
case in accordance with the terms of such Business Employee Plan and in
compliance with all applicable Laws. The Seller has complied with all
applicable labour Laws, including the Factories Act, 1948, the Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959, the Equal
Remuneration Act, 1976, the Industrial Employment (Standing Orders) Act, 1946,
the Minimum Wages Act, 1948, the Employee Provident Funds and Miscellaneous
Provisions Act, 1952, the Contract Labour (Regulation and Abolition) Act, 1970,
the Employee’s State Insurance Act, 1948, the Payment of Bonus Act, 1965, the
Payment of Gratuity Act, 1972 and the Workmen’s Compensation Act, 1923. All
contributions required to be made to any Business Employee Plan by applicable
Law or the terms of such Business Employee Plan, and all premiums due or
payable with respect to insurance policies or other Contracts funding any
Business Employee Plan, for any period through the Closing Date, have been
timely made or paid in full. All returns, reports and filings required by any
Governmental Authority or which must be furnished to any Person have been filed
or furnished with respect to any Business Employee Plan and pursuant to the
provisions of any Law.


 


9.16.6                  There is no unfunded Liability under any
Business Employee Plan. No event has occurred or circumstance exists that could
reasonably be expected to result: (a) in a material increase in premium
costs of any Business Employee Plan that is insured; or (b) a material
increase in the cost of any Business Employee Plan that is self-insured. Other
than routine claims for benefits submitted by participants or beneficiaries, no
claim against, or Proceeding involving, any Business Employee Plan or any
fiduciary thereof is pending or, to the Knowledge of the Seller, is threatened,
which could reasonably be expected to result in any material Liability, direct
or indirect (by indemnification or otherwise) of the Seller to any Person, and
no event has occurred or circumstance exists that could reasonably be expected
to give rise to any such Liability. No Proceeding involving any Business
Employee Plan or any fiduciary thereof has been concluded that resulted in any
Liability of the Seller.


 


9.16.7                  No individual who performs services for
or on behalf of the Business, other than the Business Employees (such as an
independent contractor, leased employee, consultant or special consultant), is
eligible to participate in or receive benefits under any Business Employee
Plan.


 


9.16.8                  The consummation of the transactions
contemplated by this Agreement (either alone or in conjunction with any other
event) shall not cause accelerated vesting, payment or delivery of, or increase
the amount or value of, any payment or benefit under or in connection with any
Business Employee Plan or constitute a “deemed severance”, 


 


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“deemed
retrenchment” or “deemed termination” under any Business Employee Plan or
otherwise with respect to any director, officer, employee, former director,
former officer or former employee of the Seller. The Seller has not made or
become obligated to make, and neither the Business Employee Plans nor the
Purchaser shall, as a result of the consummation of the transactions
contemplated by this Agreement, become obligated to make, any payments that
could be non-deductible, nor shall the Seller or the Purchaser be required to “gross
up” or otherwise compensate any individual because of the imposition of any
excise Tax on such a payment to the individual.


 


9.16.9                  The market value of the assets of each
funded Business Employee Plan, the Liability of each insurer for any Business
Employee Plan funded through insurance or the book reserve established for any
Business Employee Plan, together with any accrued contributions, is sufficient
to procure or provide for the projected benefit obligations, determined as of
the Closing Date, with respect to all current and former participants in such
plan according to the actuarial assumptions and valuations most recently used
to determine employer contributions to such Business Employee Plan and none of
the transactions contemplated hereby or under this Agreement shall cause such
assets or insurance obligations to be less than such benefit obligations.


 


9.16.10            Each Business Employee Plan required to
be registered with a Governmental Authority has been registered and maintained
in good standing with such applicable Government Authority.


 


9.16.11            No outstanding Liability has been
incurred with respect to any employee engaged in the Business by the Seller for
breach of any Contract of employment or for services or redundancy payments,
protective awards, compensation for wrongful dismissal or unfair dismissal or
for failure to comply with any Judgment for the reinstatement or re-engagement
of any employee or for any other Liability accruing from the termination of any
Contract of employment or for services.


 


9.16.12            No gratuitous payment has been made or
benefit given (or promised to be made or given) by the Seller in connection
with the actual or proposed termination or suspension of employment or
variation of any Contract of employment of any Business Employee or any former
employee who engaged in the Business.


 


9.16.13            All base salary merit increases due to
the Business Employees in 2009 have been implemented and all bonus payments due
for periods ending prior to the Closing Date have been paid to the Business
Employees.


 


9.16.14            No Business
Employee,
and no beneficiary or transferee thereof, has or holds any outstanding stock
option, stock appreciation right, restricted stock award, or other award or
grant based on or related to any equity security of the Seller or any of its
Affiliates.


 


9.17                           Employment and Labour Matters


 


9.17.1                  Clause 9.17.1(a) of the Seller Disclosure Schedule
sets forth an accurate and complete list of the employees of the Seller
primarily and actively engaged in the Business or otherwise included upon the
written mutual agreement of the Seller and the Purchaser 


 


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(the “Business Employees”) and contract labourers
engaged in the Business or otherwise included upon the written mutual agreement
of the Seller and the Purchaser, along with, to the extent applicable, the
position, date of hire, engagement or seniority, compensation and benefits,
scheduled or contemplated increases in compensation and benefits, scheduled or
contemplated promotions, accrued but unused sick and vacation leave or paid
time off and service credited for purposes of vesting and eligibility to
participate under any Business Employee Plan with respect to such Persons. To
the Knowledge of the Seller, no Key Employee or group of employees of the
Seller engaged in the Business intends to terminate his, her or their
employment with the Seller.


 


9.17.2                  The Seller is not, nor has the Seller
been, since 1 January 2006, a party to or bound by any collective
bargaining, works council, employee representative or other Contract with any
labour union, works council or representative of any employee group with
respect to any employees engaged in the Business, nor is any such Contract
being negotiated by the Seller. The Seller has no Knowledge of any organizing,
election or other activities made or threatened at any time within the past 3
(three) years by or on behalf of any union, works council, employee
representative or other labour organization or group of employees with respect
to any employees engaged in the Business. There is no union, works council,
employee representative or other labour organization, which, pursuant to applicable
Law, must be notified, consulted or with which negotiations need to be
conducted and Consent obtained in connection with the transactions contemplated
by this Agreement.


 


9.17.3                  Since 1 January 2006, with respect
to the employees engaged in the Business, the Seller has not experienced any
labour strike, picketing, slowdown, lockout, employee grievance process or
other work stoppage or labour dispute, nor to the Knowledge of the Seller
is any such action threatened. To the Knowledge of the Seller, no event has
occurred or circumstance exists that could reasonably be expected to give rise
to any such action, nor does the Seller contemplate a lockout of any employees
engaged in the Business.


 


9.17.4                  With respect to all employees engaged in
the Business, the Seller has complied with all applicable Laws and its own
policies relating to labour and employment matters, including fair employment
practices, terms and conditions of employment, contractual obligations, equal
employment opportunity, non-discrimination, immigration, wages, hours,
benefits, workers’ compensation, the payment of social security and similar
Taxes and occupational safety.


 


9.17.5                  Except as set forth on Clause 9.17.5
of the Seller Disclosure Schedule, there is no Proceeding pending or, to the
Knowledge of the Seller, threatened against or affecting the Seller relating to
the alleged violation by the Seller (or its directors or officers) of any Law
pertaining to labour relations or employment matters with respect to employees
engaged in the Business. With respect to employees engaged in the Business, the
Seller has not committed any unfair labour practice, nor has there has been any
charge, complaint or Proceeding of unfair labour practice filed or, to the
Knowledge of the Seller, threatened against the Seller before any Governmental
Authority or elsewhere. There has been no complaint, claim or charge of
discrimination filed or, to the Knowledge of the Seller, threatened, against
the Seller with any arbitrator, 


 


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Governmental
Authority or elsewhere with respect to employees engaged in the Business.


 


9.17.6                  Since 1 January 2006, no employee
engaged in the Business has been laid off, retrenched or made redundant by the
Seller and no such action shall be implemented without advance notification to
the Purchaser. Clause 9.17.6 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all employees of the Seller engaged in
the Business, who have been terminated or laid off, or whose hours of work have
been reduced by more than 50% (fifty percent) by the Seller, in the 6 (six)
months prior to the date of this Agreement.


 


9.17.7                  There is not in existence any Contract of
employment with any Business Employee (or any Contract for services with any
Person) which cannot be terminated by 3 (three) months’ notice or less without
giving rise to a claim for damages or compensation (other than a statutory
redundancy payment or statutory compensation for unfair dismissal).


 


9.17.8                  Within the last year, no employee engaged
in the Business has been transferred from the Business to the Other Businesses.


 


9.17.9                  There are no Contracts or Government
Authorizations pursuant to which the Seller, as a result of the Seller’s
operation of the Business, any portion of the Business or the Transferred
Assets of the Business, is required to employ Persons located in a particular
geographical location.


 


9.18                           Environmental, Health and Safety Matters


 


9.18.1                  The occupation of the facilities or the
properties of the Business and the operation of the Business is, and at all
times has been, in compliance with all, and not subject to any Liability under
any, Environmental Laws and Occupational Safety and Health Laws. Without
limiting the generality of the foregoing, the Seller and its Affiliates have
obtained and complied in all respects with all Governmental Authorizations that
are required pursuant to Environmental Laws and Occupational Safety and Health
Laws for the occupation of the properties or the facilities of the Business and
the operation of the Business. An accurate and complete list of all such
Governmental Authorizations is set forth in Clause 9.18.1 of the Seller
Disclosure Schedule.


 


9.18.2                  Neither the Seller nor any of its
Affiliates has not received any notice, report or other written communication
or information from any Governmental Authority or other Person, and there are
no unresolved, pending or threatened claims, suits, demands or other actions
regarding: (a) any actual, alleged or potential violation of, or failure
to comply with, any Environmental Law, Occupational Safety and Health Law or
Governmental Authorization; (b) any Liability or potential Liability,
including any investigatory, monitoring, remedial or corrective obligation,
relating to the Business or any Leased Business Real Property arising under any
Environmental Law or Occupational Safety and Health Law; or (c) the
presence or release into the environment of any Hazardous Material related to
the Business or any Leased Business Real Property.


 


9.18.3                  No contamination, landfill, dump, surface
impoundment, wastewater, lagoon, disposal area, underground storage tank,
underground injection well, groundwater monitoring 


 


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well, drinking
water well or production water well or Hazardous Material in such character and
extent that would subject the Seller to any Liability or require any
expenditure for investigation, monitoring, remediation or corrective action to
meet any standards under any Environmental Law, is present or, to the Knowledge
of the Seller, has ever been present at, in, on, under or adjacent to any
Leased Business Real Property.


 


9.18.4                  In occupying the Leased Business Real
Property and with respect to the operation of the Business, neither the Seller
nor any of its Affiliates has, directly or through any third party, treated,
stored, disposed of, arranged for or permitted the disposal of, transported,
handled, generated, manufactured, distributed, exposed any Person to or
released any substance, including any Hazardous Material, or owned or operated
any property or facility, in violation of any Environmental Law or Occupational
Safety and Health Law, or in a manner that has given rise to, or could
reasonably be expected to give rise to, any Liability.


 


9.18.5                  Neither the Seller nor any of its
Affiliates has, relating to the Business or the Leased Business Real Property,
either expressly or by operation of Law, assumed, undertaken, provided an
indemnity with respect to or otherwise become subject to any Liability,
including any obligation for investigatory, monitoring, or corrective or
remedial action, of any other Person relating to any Environmental Law or
Occupational Safety and Health Law.


 


9.18.6                  No event has occurred or circumstance
exists relating to the operations of the Business or the Leased Business Real
Property that could reasonably be expected to: (a) prevent, hinder or
limit continued compliance with any Environmental Law, Occupational Safety and
Health Law or Governmental Authorization; (b) give rise to any
investigatory, monitoring, remedial or corrective obligations pursuant to any
Environmental Law or Occupational Safety and Health Law; or (c) give rise
to any other Liability pursuant to any Environmental Law or Occupational Safety
and Health Law, including any Liability relating to onsite or offsite releases
of, or exposure to, Hazardous Materials, personal injury, property damage or
natural resources damage.


 


9.18.7                  Clause 9.18.7 of the Seller Disclosure Schedule sets
forth an accurate and complete list of, and the Seller has made available to
the Purchaser accurate and complete copies of, all environmental reports,
investigations, audits, correspondence and other documents relating to
environmental or occupational safety and health matters, possessed or initiated
by the Seller that were obtained from, requested by, or conducted by or on
behalf of the Seller or any of its Affiliates, any Governmental Authority or
any other third party during the past 5 (five) years and relating to the
Business or the Leased Business Real Property.


 


9.19                           Compliance with Laws, Judgments and
Governmental Authorizations


 


9.19.1                  Without limiting the scope of any other
representation in this Agreement, the Seller and each of its Affiliates is in
compliance in all material respects and have not violated in any material
respect any, Laws, Judgments, Registrations or Governmental Authorizations
applicable to the research, development, clinical testing, manufacture, sale,
labeling, testing, distributing, handling of prescription samples,
record-keeping, reporting, 


 


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importing,
exporting, advertising or promoting of the products of the Business or the
ownership or use of the Transferred Assets of the Business. During the last 3
(five) years, none of the Seller or any of its Affiliates has received with
respect to the Business, the Transferred Assets of the Business, or the Assumed
Liabilities any notice or other communication from any Governmental Authority
or any other Person regarding any actual, alleged or potential violation of, or
failure to comply with, any applicable Law, Judgment, Registration or
Governmental Authorization, any actual or threatened revocation, withdrawal,
suspension, cancellation, termination or modification of any Registration or
Governmental Authorization, or any actual, alleged or potential obligation on
the part of the Seller or any of its Affiliates to undertake, or to bear all or
any portion of the cost of, any remedial action of any nature or any actual or
potential obligation on the part of the Seller or any of its Affiliates to
perform a sample collection.


 


9.19.2                  The Registrations and the Governmental
Authorizations listed on Clause 9.19.2 of the Seller Disclosure Schedule
sets forth all of the Registrations and the Governmental Authorizations
necessary to conduct the Business lawfully in the manner in which the Seller
and its Affiliates currently conduct the Business and to permit the Seller and
its Affiliates to own and use the Transferred Assets of the Business in the
manner in which they currently own and use such assets. The Seller and its
Affiliates collectively hold all of the Registrations and Governmental
Authorizations listed on such Clause 9.19.2 of the Seller Disclosure
Schedule, and all of such Registrations and Governmental Authorizations are
valid and in full force and effect. Except as set forth on Clause 9.19.2
of the Disclosure Schedule, neither the Seller nor any of its
Affiliates has been informed in writing by any Governmental Authority that it
intends to limit, suspend or revoke any of such Registrations and Governmental
Authorizations or change the marketing classification or labeling of any
products of the Business. Except as set forth on Clause 9.19.2 of the Seller Disclosure Schedule, each such Registration
and Governmental Authorization, subject to applicable Law, may be assigned and
transferred to the Purchaser in accordance with the provisions of this
Agreement.


 


9.19.3                  Clause 9.19.3 of the Seller Disclosure Schedule sets
forth an accurate and complete list of all Judgments to which the Business or
any of the Transferred Assets of the Business, is or has been subject. To the
Knowledge of the Seller, no director, officer, employee or agent of the Seller
or any of its Affiliates is subject to any Judgment that prohibits such
director, officer, employee or agent from engaging in or continuing any
conduct, activity or practice relating to the Business.


 


9.20                           Regulatory
Compliance


 


9.20.1                  The products of the
Business that are subject to the jurisdiction of the Product Laws have been and
are being developed, tested, manufactured, stored and transported in compliance
in all material respects with all applicable Product Laws.


 


9.20.2                  The Seller is not
subject to, nor does the Seller have Knowledge of facts or circumstances
reasonably likely to cause, any obligation arising under an administrative or
regulatory action status, warning letter, notice of violation letter, or other
written notice from any Governmental Authority with respect to the Business,
the Transferred Assets of the Business or the Assumed Liabilities.


 


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9.20.3                  The operation of the Business is in
compliance with all applicable Laws in which the product is sold, marketed or
distributed relating to the promotion of pharmaceutical products, and the
Seller has not received any written or oral notice of any violation of any Law
applicable to the operation of the Business or the ownership of the Transferred
Assets of the Business or applicable Laws relating to the promotion of
pharmaceutical products in those jurisdictions in which the products of the
Business are sold, marketed or distributed.


 


9.20.4                  The Seller, its Affiliates and to the
Knowledge of Seller, their respective distributors selling or marketing the
products of the Business (whether in their own name or on behalf of the
Seller), hold all Registrations required to sell or market such products
pursuant to the applicable Laws of all jurisdictions in which the products of
the Business are sold or marketed by such parties.


 


9.20.5                  Except as set forth on Clause 9.20.5
of the Seller Disclosure Schedule, within the last three (3) years,
neither the Seller nor its Affiliates have been notified in writing of any
material failure (or any material investigation with respect thereto) by them
or any licensor, licensee, partner or distributor to comply with, or maintain
systems and programs to ensure compliance with, any applicable Laws, including
pertaining to programs or systems regarding product quality (including Good
Manufacturing Practices requirements), notification of facilities and products,
corporate integrity, advertising, sales and marketing, pharmacovigilance and
conflict of interest, Good Laboratory Practices requirements, Good Clinical
Practices requirements, establishment registration and product listing
requirements, requirements applicable to the debarment of individuals,
requirements applicable to the conflict of interest of clinical investigators
and adverse drug reaction reporting and medical device reporting requirements,
in each case with respect to any products of the Business. This includes
without limitation FDA Form 483s, warning letters, untitled letters,
consent decrees, seizures, injunctions, and criminal prosecutions, and similar
notifications and actions by any Governmental Authority.


 


9.20.6                  To the Knowledge of
Seller, neither the Seller nor the Affiliates have been notified in writing of any material
failure (or any material investigation with respect thereto) by them or any
licensor, licensee, partner or distributor to have at all times complied with
their obligations to report accurate pricing information for the products of
the Business to a Governmental Authority and to pricing services relied upon by
a Governmental Authority or other payors for such products.


 


9.20.7                  No product or product candidate
manufactured, tested, distributed, held and/or marketed by the Seller or its
Affiliates with respect to the Business has been recalled, withdrawn, suspended
or discontinued (whether voluntarily or otherwise) since 1 January 2006.
No Proceedings (whether completed or pending) seeking the recall, withdrawal,
suspension or seizure of any such product or product candidate or pre-market
approvals or marketing authorizations are pending, or to the Knowledge of
Seller, threatened, against the Seller and its Affiliates, nor have any such
Proceedings been pending at any time since 1 January 2006. Seller, prior
to the execution of this Agreement, have provided or made available to
Purchaser all current reports and all information about adverse drug
experiences and medical device reports in the 


 


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possession of
the Seller and its Affiliates (or to which Seller and its Affiliates has
access), in each case since 1 January 2006 obtained or otherwise received
by Seller and its Affiliates from any source in the United States or outside
the United States, including information derived from clinical investigations
prior to any market authorization approvals, commercial marketing experience,
postmarketing clinical investigations, postmarketing epidemiological/
surveillance studies, reports in the scientific literature, and unpublished
scientific papers relating to any product or product candidate manufactured,
tested, distributed, held and/or marketed by the Seller or its Affiliates in
respect of the Business or any of their licensors or licensees.


 


9.20.8                  To the Knowledge of Seller, since 1 January 2006
neither Seller nor its Affiliates nor any of their respective directors,
officers, Business Employees or agents has with respect to any product that is
manufactured, tested, distributed, held and/or marketed by the Seller or its
Affiliates in respect of the Business made an untrue statement of a material
fact or fraudulent statement to any Governmental Authority, failed to disclose
a material fact required to be disclosed to any Governmental Authority, or
committed an act, made a statement, or failed to make a statement that, at the
time such disclosure was made, could reasonably be expected to provide a basis
for a Governmental Authority to take any action or initiate any Proceeding
pertaining to the provision of fraudulent, untrue or other similarly
inappropriate statements or information to such Governmental Authority (e.g.,
the FDA’s policy respecting “Fraud, Untrue Statements of Material Facts, Bribery,
and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (10 September 1991))
or any similar policy or Law outside the United States.


 


9.20.9                  Neither the Seller nor its Affiliates has received, since 1 January 2006, any written
notification, that remains unresolved, from any Government Authorities
indicating that any product of the Business is unapproved, misbranded or
adulterated. The Seller and its Affiliates have manufactured, processed,
packaged, labeled, stored, shipped and otherwise handled all products of the
Business in compliance in all material respects with all applicable Laws and
none of such products is unapproved, misbranded or adulterated.


 


9.20.10            To the Knowledge of
Seller, the third party contractors manufacturing products of the Business have
all of the material Registrations necessary for the manufacture of such
products and are not in breach of or default under any such material
Registrations.


 


9.21                           Promotional Practices


 


9.21.1                  The Seller and its Affiliates have not in
connection with the Business, to obtain or retain business, directly or
indirectly offered, paid, or promised to pay, or authorized the payment of, any
commission payment or any other money or other thing of value (including any
fee, gift, sample, travel expense, or entertainment) payable, to:


 


9.21.1(a)                                                    any Person who is an official, officer,
agent, employee or representative of any Governmental Authority, or any
existing or prospective customer (whether government-owned or
non-government-owned);


 


9.21.1(b)                                                   any political party or official thereof;


 


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9.21.1(c)                                                    any candidate for political or political
party office; or


 


9.21.1(d)                                                   any other individual or entity;


 


while knowing
or having reason to believe that all or any portion of such money or thing of
value would be offered, given, or promised, directly or indirectly, to any such
official, officer, agent, employee, representative, political party, political
party official, candidate, individual or any entity affiliated with such
customer, political party or official, or political office.


 


9.21.2                  Each transaction related to the Business
or the Transferred Assets of the Business is, in all material respects,
properly and accurately recorded on the books and records of the Seller and its
Affiliates, as applicable, and each document on which entries in the Seller’s
and its Affiliates’ books and records are based is complete and accurate in all
material respects. The Seller and its Affiliates maintain a system of internal
accounting controls adequate to ensure that the Seller and its Affiliates
maintain no off-the-books accounts and that the Seller’s and its Affiliates’
assets are used only in accordance with the Seller’s management directives.


 


9.21.3                  In respect of the Business, none of the
Seller, the Seller’s Affiliates or, to the Knowledge of the Seller, any of
their respective directors, officers, Business Employees or agents (acting on
behalf of the Seller or any Affiliate of the Seller in respect of the Business)
is currently, or has been, excluded or debarred under any Law or otherwise been
deemed ineligible to participate in any United States federal health care
programs or similar programs outside the United States. To the Knowledge of the
Seller, there are no facts concerning the Seller or any of its Affiliates in
respect of the Business or any of their respective directors, officers,
Business Employees or agents (acting on behalf of the Seller or any Affiliate
of the Seller in respect of the Business) that are reasonably likely to form
the basis for any such exclusion or debarment of any such Persons.


 


9.21.4                  Except as set forth on Clause 9.21.4
of the Seller Disclosure Schedule, in respect of the Business, neither the
Seller nor any of its Affiliates has at any time since 1 January 2006
engaged in the sale, purchase, import, export, re-export or transfer of
products or services, either directly or indirectly, to or from Myanmar, Cuba,
Iran, North Korea, Sudan or Syria (the “Certain
Nations”) or been a party to or beneficiary of any franchise,
license, management or other Contract with any Person, either public or
private, in the Certain Nations or been a party to any investment, deposit,
loan, borrowing or credit arrangement or involved in any other financial
dealings, with any Person, either public or private, in the Certain Nations.


 


9.22                           Information and Disclosure


 


9.22.1                  No representation or warranty of the
Seller in this Agreement, and no statement made by the Seller in the Seller
Disclosure Schedule, the Ancillary Agreements, or any certificate, instrument
or other document delivered by or on behalf of the Seller or its Affiliates
pursuant to this Agreement or any Ancillary Agreement, contains or shall
contain any untrue statement of a material fact or omits or shall omit to state
a material fact necessary to make the statements contained herein or therein,
when read together and in light of the circumstances in which they were made,
not misleading. The Seller


 


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does not have
any Knowledge of any fact or circumstance that has specific application to the
Seller or the Business that could have a Material Adverse Effect that has not
been set forth in this Agreement, the Ancillary Agreements or the Seller
Disclosure Schedule.


 


9.23                           Legal Proceedings


 


Clause
9.23
of the Seller Disclosure Schedule sets forth an accurate and complete list of
all pending Proceedings: (a) by or against the Seller or any of its
Affiliates or that otherwise relate to or could reasonably be expected to
materially impact or affect the Business or the Transferred Assets of the
Business; (b) to the Seller’s Knowledge, by or against any of the
directors or officers of the Seller in their capacities as such; or (c) that
challenge, or that may materially prevent, delay, make illegal or otherwise
materially interfere with, any of the transactions contemplated by this
Agreement and the Ancillary Agreements. To the Knowledge of the Seller, no
other such Proceeding has been threatened, and no event has occurred or
circumstance exists that could reasonably be expected to give rise to or serve
as a basis for the commencement of any such Proceeding. The Seller has
delivered to the Purchaser accurate and complete copies of all pleadings
relating to such Proceedings. Such Proceedings shall not, in the aggregate,
have a Material Adverse Effect. To the Seller’s Knowledge, no official
investigation or inquiry, by a Governmental Authority or otherwise, concerning
the Seller or any of its Affiliates is in progress or is pending and the Seller
is not aware of any circumstances which are likely to give rise to any such
Proceeding. There is no Judgment impacting or affecting the Business or the
Transferred Assets of the Business.


 


9.24                           Customers and Suppliers


 


9.24.1                  Clause 9.24.1 of the Seller Disclosure Schedule sets
forth an accurate and complete list of: (a) the names and addresses of all
customers and distributors that ordered products of the Business from the
Seller or any of its Affiliates with an aggregate value for each such customer
or distributor of INR 5,000,000 (Indian Rupee Five Million) or more during the
12 (twelve) month period ended 30 September 2009; and (b) the amount
for which each such customer or distributor was invoiced during such period.
The Seller has not received any written notice that, and to the Seller’s
Knowledge, no significant customer or distributor of the Seller: (A) has
ceased, or shall cease, to buy the products of the Business; (B) has
substantially reduced, or shall substantially reduce, the purchase of products
of the Business; or (C) has sought, or is seeking, to reduce the price it
shall pay for products of the Business, including in each case after the
consummation of the transactions contemplated by this Agreement. To the
Knowledge of the Seller, no customer or distributor described in clause (a) of
the first sentence of this subclause 9.24.1 has threatened to take any
action described in the preceding sentence as a result of the consummation of
the transactions contemplated by this Agreement.  All sales made to customers and distributors
in the past year have been made in the Ordinary Course of Business and the
Seller has not increased its level of sales during such period in such a manner
as to increase the amount of accounts receivable for conversion into cash prior
to the Closing or decrease the demand for the products of the Business in the
distribution chain of customers or distributors following the Closing.


 


9.24.2                  Clause 9.24.2 of the Seller Disclosure Schedule sets
forth an accurate and complete list of: (a) the names and addresses of all
suppliers from which the Seller ordered raw materials, supplies, merchandise
and other goods and services for the Business with an 


 


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aggregate
purchase price for each such supplier of INR 2,500,000 (Indian Rupee Two
Million Five Hundred Thousand) or more during the 12 (twelve) month period ended
30 September 2009; and (b) the amount for which each such supplier
invoiced the Seller during such period. The Seller has not received any written
notice of, and to the Seller’s Knowledge, there have not been any material
adverse changes in the price of such raw materials, supplies, merchandise or
other goods or services. The Seller does not have any reason to believe that
any supplier would not sell raw materials, supplies, merchandise and other
goods and services to the Purchaser at any time after the Closing on terms and
conditions similar to those used in its current sales to the Seller, subject to
general and customary price increases. To the Knowledge of the Seller, no
supplier described in clause (a) of the first sentence of this subclause
9.25.2 has threatened to take any action described in the preceding sentence as
a result of the consummation of the transactions contemplated by this
Agreement.


 


9.25                           Products; Product Warranty


 


9.25.1                  Clause 9.25.1 of the Seller Disclosure Schedule sets
forth a list of all products of the Business that have been, currently are
being, or for which the Seller plans on being researched, developed,
manufactured, sold, marketed or distributed by the Seller, its third party
manufacturers or other agents.


 


9.25.2                  Clause 9.25.2 of the Seller Disclosure Schedule sets
forth all forms of guaranty, warranty, right of return, right of credit or
other indemnity that legally bind the Seller in connection with the products of
the Business manufactured, sold or delivered by the Seller or its agents. No
product of the Business manufactured, sold or delivered by the Seller is
subject to any guaranty, warranty or other indemnity beyond the applicable
standard terms and conditions of sale set forth in Clause 9.25.2 of
the Seller Disclosure Schedule. Each product of the Business manufactured, sold
or delivered by the Seller has been in conformity, in all material respects,
with all applicable contractual commitments and all express and implied
warranties, and the Seller has no Liability (and, to the Seller’s Knowledge, no
event has occurred or circumstance exists that could reasonably be expected to
give rise to any Proceeding, claim or demand against the Seller giving rise to
any Liability) for damages in connection therewith.


 


9.25.3                  In no rolling 12 (twelve) month period
since January 1, 2006, have the returns of the products of the Business
ever exceeded 3%  (three percent)  of gross sales of the products of the
Business.


 


9.26                           Product Liability


 


To the Seller’s
Knowledge, except as set forth in Clause 9.26 of the Seller
Disclosure Schedule, the Seller does not have any Liability arising out of any
injury to individuals or property as a result of the ownership, possession or
use of any product of the Business manufactured, sold or delivered by the
Seller or the Seller’s third party manufacturers.


 


9.27                           Insurance


 


Clause
9.27
of the Seller Disclosure Schedule sets forth an accurate and complete list of
all certificates of insurance, binders for insurance policies and insurance
maintained by the Seller 


 


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related to the
Business, including under third party manufacturing agreements, or under which
the Seller has been the beneficiary of coverage at any time within the past 5
(five) years. The Seller maintains, with reputable and financially sound
insurance companies authorized to do business in India, commercial general
liability insurance with a combined single limit of liability not less than the
Indian Rupee equivalent of USD 5,000,000 (United States Dollar Five Million)
and has made available to the Purchaser certificates of such insurance from
each insurance carrier showing that such insurance is in full force and effect.
The Seller is not in default under any provision contained in any such
insurance policy relating to the Business which would have a material adverse effect
upon the ability of the insured to collect insurance proceeds under such
policy. The Seller has no Knowledge of any threatened termination of, or
material premium increase with respect to, any such certificate of insurance,
binder or policy. Clause 9.27 of the Seller Disclosure Schedule further
sets forth an accurate and complete list of all claims asserted by the Seller
pursuant to any such certificate of insurance, binder or policy within the past
5 (five) years, and describes the nature and status of the claims. The Seller
has not failed to give in a timely manner any notice of any claim that may be
insured under any certificate of insurance, binder or policy required to be
listed on Clause 9.27 of the Seller Disclosure Schedule and there are no
outstanding claims which have been denied or disputed by the insurer. The
Seller maintains, and at all times during the past 5 (five) years has
maintained, in full force and effect, certificates of insurance, binders and
policies of such types and in such amounts and for such risks, casualties and
contingencies as is reasonably adequate to fully insure the Seller against
insurable losses, damages, claims and risks to or in connection with their
businesses, properties, assets and operations, including policies related to
the funding of the Business Employee Plans. The Seller has never maintained,
established, sponsored, participated in or contributed to any self-insurance
program, retrospective premium program or captive insurance program.


 


9.28                           Related Party Transactions


 


Except as set
forth on Clause 9.28 of the Seller Disclosure Schedule, to the Seller’s
Knowledge, no shareholder, director, officer or employee of the Seller, or
Affiliate of any such shareholder, director, officer or employee, or Affiliate
of the Seller, (a) owns, or during the past 3 (three) years has owned,
directly or indirectly, whether on an individual, joint or other basis, any
interest in: (i) any property or asset, real, personal or mixed, tangible
or intangible, used in or pertaining to the Business; (ii) any Person that
has had business dealings or a financial interest in any transaction with the
Seller; or (iii) any Person that is a supplier, customer, distributor or
competitor of the Seller except for securities having no more than 1% (one
percent) of the outstanding voting power of any such supplier, customer,
distributor, or competing business which are listed on any national securities
exchange; (b) has had, during the past 3 (three) years, business dealings
or a financial interest in any transaction with the Seller, other than, in the
case of the Seller’s employees, salaries and employee benefits and other
transactions pursuant to the Employee Plans in the Ordinary Course of Business;
or (c) serves as an officer, director or employee of any Person that is a
supplier, customer, distributor, or competitor of the Seller.


 


9.29                           Brokers or Finders


 


Neither the
Seller nor any Person acting on behalf of the Seller or its Affiliates has
incurred any Liability to pay any fees or commissions to any broker, finder or
agent or any other similar payment in connection with any of the transactions
contemplated by this Agreement or the Ancillary Agreements.


 


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9.30                           Solvency


 


The Seller is
not insolvent and shall not be rendered insolvent by any of the transactions
contemplated by this Agreement or the Ancillary Agreements. As used in this
Clause, “insolvent” means that the sum of the debts and other probable
Liabilities of the Seller exceed the present fair saleable value of the Seller’s
assets.  Immediately after giving effect
to the consummation of the transactions contemplated by this Agreement, the
Seller: (a) shall be able to pay its Liabilities as they become due in the
usual course of its business; (b) shall not have unreasonably small
capital with which to conduct its present or proposed business; (c) shall
have assets (calculated at fair market value) that exceed its Liabilities; and (d) shall,
taking into account all pending and threatened litigation, have no final
Judgments against the Seller in actions for money damages that are reasonably
anticipated to be rendered at a time when, or in amounts such that, the Seller
shall be unable to satisfy any such Judgments promptly in accordance with their
terms (taking into account the maximum probable amount of such Judgments in any
such actions and the earliest reasonable time at which such Judgments might be
rendered) as well as all other obligations of the Seller. The cash available to
the Seller, after taking into account all other anticipated uses of the cash,
shall be sufficient to pay all such Liabilities and Judgments promptly in
accordance with their terms.


 


9.31                           No Business Assets


 


No Affiliate of
the Seller in the United States of America, the United Kingdom, South Africa,
China or Japan owns any inventory or products of the Business or is a party to
any Contract related to the Business, other than any Contracts for intercompany
services by and among the Seller and its Affiliates.


 


10                                  REPRESENTATIONS AND
WARRANTIES OF PURCHASER


 


The Purchaser
represents and warrants to the Seller that as of the date of this Agreement and
as of the Closing Date the statements set forth in this Clause 10
are true and correct.


 


10.1                           Organization and Good Standing


 


The Purchaser
is a company duly organized and validly existing under the Laws of India.


 


10.2                           Authority and Enforceability


 


The Purchaser
has all requisite company power and authority to execute and deliver this
Agreement and each Ancillary Agreement to which the Purchaser is a party and to
perform its obligations under this Agreement and each such Ancillary Agreement.
The execution, delivery and performance of this Agreement and each Ancillary
Agreement to which the Purchaser is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Purchaser. The Purchaser has duly and
validly executed and delivered this Agreement and, on or prior to the Closing,
the Purchaser shall have duly and validly executed and delivered each Ancillary
Agreement to which it is a party and the Purchaser has made available to the
Seller an accurate and complete copy of the approval of the Board of Directors
of the Purchaser containing such authorization. This Agreement constitutes, and
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the Purchaser
is a party shall constitute, the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms.


 


10.3                           No Conflict


 


Neither the
execution, delivery and performance of this Agreement or any Ancillary
Agreement by the Purchaser, nor the consummation of the transactions
contemplated hereby or thereby, shall: (a) directly or indirectly (with or
without notice, lapse of time or both), conflict with, result in a breach or
violation of, constitute a default under, give rise to any right of revocation,
withdrawal, suspension, acceleration, cancellation, termination, modification,
imposition of additional obligations or loss of rights under, result in any
payment becoming due under, or result in the imposition of any Encumbrances
(other than Permitted Encumbrances) on any of the properties or assets of the
Purchaser under, or otherwise give rise to any right on the part of any Person
to exercise any remedy or obtain any relief under: (i) the articles of
association or memorandum of association of the Purchaser or any resolutions
adopted by the shareholders or board of directors of the Purchaser; (ii) any
Contract to which the Purchaser is a party, by which the Purchaser is bound or
to which any of its properties or assets is bound or affected or pursuant to
which the Purchaser is an obligor or beneficiary; or (iii) any Law,
Judgment or Governmental Authorization applicable to the Purchaser or any of
its properties or assets or (b) require the Purchaser to obtain any
Consent or Governmental Authorization of, give any notice to, or make any
filing or registration with, any Governmental Authority or other Person, except
with respect to clauses (a) and (b) in any case that would not
reasonably be expected to have, either individually or in the aggregate, a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement or on the ability of the Purchaser to
consummate the transactions contemplated by this Agreement.


 


10.4                           Legal Proceedings


 


To the
knowledge of the Purchaser, there is no Proceeding pending or threatened
against the Purchaser that challenges, or that may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any of the
transactions contemplated by this Agreement or any Ancillary Agreement.


 


10.5                           Brokers or Finders


 


Neither the
Purchaser nor any Person acting on its behalf has incurred any Liability to pay
any fees or commissions to any broker, finder or agent or any other similar
payment in connection with any of the transactions contemplated by this
Agreement or the Ancillary Agreements.


 


10.6                           Financing


 


The Purchaser
has the necessary financial resources available to it to consummate the
transactions contemplated hereby when and as contemplated by this Agreement.


 


11                                  INDEMNITY


 


11.1                           Indemnification by the Seller


 


Subject to the
limitations expressly set forth in Clause 11.6, the Seller
indemnifies and holds harmless the Purchaser and its Affiliates and their
respective directors, officers, equity owners, 


 


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employees,
agents, consultants and other advisors and representatives (collectively, the “Purchaser Indemnified Parties”) from and against, and shall
pay to the Purchaser the monetary value of, any and all Losses incurred or
suffered by the Purchaser Indemnified Parties directly or indirectly arising
out of, relating to or resulting from any of the following:


 


11.1.1                  any inaccuracy in or breach of any
representation or warranty or other statement of the Seller contained in this
Agreement, the Seller Disclosure Schedule, any Ancillary Agreement or in any
certificate, instrument or other document delivered by or on behalf of the
Seller or its Affiliates pursuant to this Agreement or any Ancillary Agreement;


 


11.1.2                  any non-fulfillment, non-performance or
other breach of any covenant or agreement of the Seller or any of its
Affiliates contained in this Agreement, the Seller Disclosure Schedule, any
Ancillary Agreement or in any certificate, instrument or other document
delivered by or on behalf of the Seller or any of its Affiliates pursuant to
this Agreement or any Ancillary Agreement;


 


11.1.3                  any Excluded Liability;


 


11.1.4                  other than any Liability assumed by the
Purchaser pursuant to Clause 2.3.6, any deficiency of or failure by the
Seller or its Affiliates to obtain a complete and effective Consent and/or
Release of any Encumbrance (as applicable) from any of the lenders to the
Seller or its Affiliates or other third parties with respect to Contracts in
connection with the transactions contemplated by this Agreement or any
Ancillary Agreement; and


 


11.1.5                  other than any Liability assumed by the
Purchaser pursuant to Clause 2.3.6, any Liability under any Contract
assumed by the Purchaser pursuant to Clause 2.1.6 that arises out of or
is related to: (i) any breach of, or failure to comply with, prior to the
Closing, any covenant or obligation in any such Contract; (ii) any event
that occurred prior to the Closing which, with or without notice, lapse of time
or both, would constitute such a breach or failure; or (iii) any
obligation which was required to be fulfilled by the Seller or any of its
Affiliates prior to the Closing.


 


For purposes of
this Clause 11.1, any inaccuracy in, or breach of any representation or
warranty, or non-fulfillment, non-performance or other breach of any covenant
or agreement by the Seller, and the amount of any Losses associated therewith,
shall be determined without regard for any materiality, a “Material Adverse
Effect” or similar qualification.


 


11.2                           Indemnification by the Purchaser


 


Subject to the
limitations expressly set forth in Clause 11.6, the Purchaser,
jointly and severally, indemnifies and holds harmless the Seller and its
Affiliates and their respective directors, officers, equity owners, employees,
agents, consultants and other advisors and representatives (collectively, the “Seller Indemnified Parties”) from and against, and shall pay
to the Seller the monetary value of, any and all Losses incurred or suffered by
the Seller Indemnified Parties directly or indirectly arising out of, relating
to or resulting from any of the following:


 


11.2.1                  any inaccuracy in or breach of any
representation or warranty or other statement of the Purchaser contained in
this Agreement, any Ancillary Agreement or in any certificate, 


 


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instrument or
other document delivered by the Purchaser or its Affiliates pursuant to this
Agreement or any Ancillary Agreement;


 


11.2.2                  any non-fulfillment, non-performance or
other breach of any covenant or agreement of the Purchaser contained in this
Agreement, any Ancillary Agreement or in any certificate, instrument or other
document delivered by the Purchaser or its Affiliates pursuant to this
Agreement or any Ancillary Agreement; and


 


11.2.3                  any of the Assumed Liabilities.


 


For purposes of
this Clause 11.2, any inaccuracy in, or breach of any representation or
warranty, or non-fulfillment, non-performance or other breach of any covenant
or agreement by the Purchaser, and the amount of any Losses associated
therewith, shall be determined without regard for any materiality, material
adverse effect or similar qualification.


 


11.3                           Claim Procedure.


 


11.3.1                  A Party that seeks indemnity under this Clause 11
(an “Indemnified Party”) shall
give written notice (a “Claim Notice”)
to the Party from whom indemnification is sought (an “Indemnifying Party”) containing: (a) a
description and, if known, the estimated amount of any Losses incurred or
reasonably expected to be incurred by the Indemnified Party; (b) a
reasonable explanation of the basis for the Claim Notice to the extent of the
facts then known by the Indemnified Party; and (c) a demand for payment of
those Losses.


 


11.3.2                  Within 30 (thirty) days after delivery of
a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a
written response in which the Indemnifying Party shall either:


 


11.3.2(a)                                                    agree that the Indemnified Party is
entitled to receive all of the Losses at issue in the Claim Notice; or


 


11.3.2(b)                                                   dispute the Indemnified Party’s
entitlement to indemnification by delivering to the Indemnified Party a written
notice (an “Objection Notice”)
setting forth in reasonable detail each disputed item, the basis for each such
disputed item and certifying that all such disputed items are being disputed in
good faith.


 


11.3.3                  If the Indemnifying Party fails to take
either of the foregoing actions within 30 (thirty) days after delivery of the
Claim Notice, then the Indemnifying Party shall be deemed to have irrevocably
accepted the Claim Notice and the Indemnifying Party shall be deemed to have
irrevocably agreed to pay the Losses at issue in the Claim Notice.


 


11.3.4                  If the Indemnifying Party delivers an
Objection Notice within 30 (thirty) days of the delivery of the Claim Notice,
the Indemnified Party and the Indemnifying Party shall attempt in good faith,
for a period of at least 30 (thirty) days, to agree upon the rights of the
respective parties with respect to each of such claims and the Losses at issue.
If no such agreement can be reached after good faith negotiation and after 30
(thirty) days from the date of delivery of an Objection Notice, then either the
Purchaser or the Seller may demand arbitration of the matter unless the amount
of the Losses is at issue in a pending Third Party Claim, in which event
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either such
amount is finally determined pursuant to a final, non-appealable Judgment, or
both the Purchaser and the Seller agree to arbitration, and in either such
event the matter shall be settled by binding arbitration in accordance with the
provisions of Clause 14.2 (but excluding any obligation in Clause 13.2.1).


 


11.3.5                  Any indemnification of the Purchaser
Indemnified Parties pursuant to this Clause 11 shall be effected as
contemplated in Clause 7.3 or by wire transfer of immediately available
funds to an account designated by the Purchaser. The Parties agree that the
Purchaser shall first seek reimbursement from amounts remaining in the Escrow
Amount for any indemnification payments made pursuant to this Clause 11.  Any indemnification of the Seller Indemnified
Parties pursuant to this Clause 11 shall be effected by wire
transfer of immediately available funds to an account designated by the Seller.


 


11.3.6                  The foregoing indemnification payments
shall be made within 5 (five) Business Days after the date on which: (a) the
amount of such payments are determined by mutual agreement of the Parties; (b) the
amount of such payments are determined pursuant to Clause 11.3.3 if
an Objection Notice has not been timely delivered in accordance with Clause 11.3.2;
or (c) both such amount and the Indemnifying Party’s obligation to pay
such amount have been finally determined by a final Judgment of a court or
other tribunal having jurisdiction over such Proceeding as permitted by Clause 11.3.4
if an Objection Notice has been timely delivered in accordance with Clause 11.3.2.


 


11.4                           Third Party Claims


 


11.4.1                  Without limiting the general application
of the other provisions of this Clause 11, if another Person not a
party to this Agreement alleges facts that, if true, would mean that a Party
has breached its representations and warranties in this Agreement, the Party
for whose benefit the representations and warranties are made shall be entitled
to indemnity for those allegations and demands and related Losses under and
pursuant to this Clause 11. If the Indemnified Party seeks indemnity
under this Clause 11 in respect of, arising out of or involving a
claim or demand, whether or not involving a Proceeding, by another Person not a
party to this Agreement (a “Third Party Claim”),
then the Indemnified Party shall include in the Claim Notice: (a) notice
of the commencement or allegation of any Proceeding relating to such Third
Party Claim within 30 (thirty) days after the Indemnified Party has received
written notice of the commencement of the Third Party Claim; and (b) the
allegation constituting the basis for such Third Party Claim and the amount of
the damages claimed by the other Person, in each case to the extent known to
the Indemnified Party. Notwithstanding the foregoing, no delay or deficiency on
the part of the Indemnified Party in so notifying the Indemnifying Party shall
relieve the Indemnifying Party of any Liability or obligation under this
Agreement except to the extent the Indemnifying Party has suffered actual
Losses directly caused by the delay or other deficiency.


 


11.4.2                  Subject to the provisions of Clause 11.4.3,
within 30 (thirty) days after the Indemnified Party’s delivery of a Claim
Notice under this Clause 11.4, the Indemnifying Party may assume
control of the defense of such Third Party Claim by giving to the Indemnified
Party written notice of the intention to assume such defense, but if and only
if the Indemnifying Party further:


 


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11.4.2(a)                                                    acknowledges in writing to the
Indemnified Party that any Losses that may be assessed in connection with the
Third Party Claim constitute Losses for which the Indemnified Party shall be
indemnified pursuant to this Clause 11 without contest or objection
and that the Indemnifying Party shall advance all expenses and costs of
defense; and


 


11.4.2(b)                                                   retains counsel for the defense of the
Third Party Claim reasonably satisfactory to the Indemnified Party and
furnishes to the Indemnified Party evidence reasonably satisfactory to the
Indemnified Party that the Indemnifying Party has and shall have sufficient
financial resources to fund on a current basis the cost of such defense and pay
all Losses that may arise under the Third Party Claim.


 


However, in no
event may the Indemnifying Party assume or maintain control of the defense of
any Third Party Claim: (i) involving criminal liability of the Indemnified
Party, (ii) in which an order, injunction or other equitable relief for
other than monetary damages against the Indemnified Party is sought which the
Indemnified Party reasonably determines, after conferring with its counsel,
cannot be separated from any related claim for monetary damages; or (iii) in
which the outcome of any Judgment or settlement in the matter could adversely
affect the Indemnified Party’s Tax Liability or is reasonably likely, in the
good faith judgment of the Indemnified Party, to establish a precedential
custom or practice adverse to the continuing business interests of the
Indemnified Party (collectively, clauses (i) — (iii), the “Special Claims”). An Indemnifying Party shall lose any
previously acquired right to control the defense of any Third Party Claim if
for any reason the Indemnifying Party ceases to actively, competently and
diligently conduct the defense.


 


11.4.3                  The Indemnified Party shall have the
right to (a) participate in the defense of a Third Party Claim if the
Indemnified Party notifies the Indemnifying Party that the Indemnified Party
desires for any reason to participate in the defense of a Third Party Claim or;
(b) control the defense of a Third Party Claim if the Indemnifying Party
does not, or is not able to, assume or maintain control of the defense of a
Third Party Claim in compliance with Clause 11.4.2. If the
Indemnified Party controls the defense of the Third Party Claim (including any
Special Claim) pursuant to Clause 11.4.3, the Indemnifying Party
agrees to pay to the Indemnified Party promptly upon demand from time to time
all reasonable attorneys’ fees and other costs and expenses of defending the
Third Party Claim. If the Indemnified Party participates in the defense of the
Third Party Claim (including any Special Claim) pursuant to Clause 11.4.3(a),
the Indemnified Party shall participate at its own expense and the Indemnified
Party’s attorneys’ fees and other costs and expenses of defending the Third
Party Claim shall not be considered Losses. To the extent that the Third Party
Claim does not constitute a Special Claim, the Party not controlling the
defense (the “Non-controlling Party”)
may participate therein at its own expense. However, if the Indemnifying Party
assumes control of such defense as permitted above and the Indemnified Party
reasonably concludes that the Indemnifying Party and the Indemnified Party have
conflicting interests or different defenses available with respect to the Third
Party Claim, then the reasonable fees and expenses of counsel to the Indemnified
Party shall be considered and included as “Losses” for purposes of this
Agreement. The Party controlling the defense (the “Controlling Party”) shall reasonably 


 


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advise the
Non-controlling Party of the status of the Third Party Claim and the defense
thereof and, with respect to any Third Party Claim that does not relate to a
Special Claim, the Controlling Party shall consider in good faith
recommendations made by the Non-controlling Party. The Non-controlling Party
shall furnish the Controlling Party with such information as it may have with
respect to such Third Party Claim and related Proceedings (including copies of
any summons, complaint or other pleading which may have been served on such
Party and any written claim, demand, invoice, billing or other document
evidencing or asserting the same) and shall otherwise cooperate with and assist
in the defense of the Third Party Claim.


 


11.4.4                  If the Indemnified Party is controlling
the defense of a Third Party Claim, the Indemnified Party shall not agree to
any compromise or settlement of, or the entry of any Judgment arising from, the
Third Party Claim without prior notice to and Consent of the Indemnifying
Party, which Consent shall not be unreasonably withheld, delayed or
conditioned. All amounts paid or payable under such settlement or Judgment are
Losses that the Indemnifying Party owes to the Indemnified Party under this Clause 11.
The Indemnifying Party shall not agree to any compromise or settlement of, or
the entry of any Judgment (other than monetary damages only) arising from, or
the admission of any Liability regarding the Third Party Claim without the
prior written Consent of the Indemnified Party, which Consent the Indemnified
Party shall not unreasonably withhold, delay or condition. The Indemnified
Party shall have no Liability with respect to any compromise or settlement of,
or the entry of any Judgment arising from, any Third Party Claim effected
without its Consent.


 


11.4.5                  Notwithstanding the other provisions of
this Clause 11, if a Person not a party to this Agreement asserts
that a Purchaser Indemnified Party is liable to such Person for a monetary or
other obligation which individually may constitute or result in Losses not to
exceed INR 5,000,000 (Indian Rupee Five Million) (unless such Person is a
Business Employee in which case no such monetary limitation shall apply) for
which the Purchaser Indemnified Party may be entitled to indemnification
pursuant to this Clause 11, and the Purchaser Indemnified Party
reasonably determines that it has a business reason to fulfill such obligation,
then: (a) the Purchaser Indemnified Party shall be entitled to satisfy
such obligation, without prior notice to or Consent from the Indemnifying
Party; (b) the Purchaser Indemnified Party may subsequently make a claim
for indemnification in accordance with the provisions of this Clause 11;
and (c) the Purchaser Indemnified Party shall be reimbursed, in accordance
with the provisions of this Clause 11, for any such Losses for
which it is entitled to indemnification pursuant to this Clause 11,
subject to the right of the Indemnifying Party to dispute the Purchaser
Indemnified Party’s entitlement to indemnification, or the amount for which it
is entitled to indemnification, under the provisions of this Clause 11.


 


11.5                           Survival of Representations and
Warranties


 


11.5.1                  All representations and warranties
contained in this Agreement, any Ancillary Agreement or in any certificate,
instrument or other document delivered pursuant to this Agreement or Ancillary
Agreement shall survive the Closing, irrespective of any facts known to any
Indemnified Party at or prior to the Closing or any investigation at any time
made by or on behalf of any Indemnified Party, for a period of 24 (twenty-four)


 


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months from the
Closing Date; provided, however, that: (i) the
representations and warranties set forth in the second sentence of Clause 9.9
(Assets), Clause 9.15 (Tax Matters), Clause 9.16 (Employee
Benefit Matters) and Clause 9.18 (Environmental,
Health and Safety Matters) shall survive until 180 (one hundred and
eighty) days following the expiration of the statute of limitations applicable
to the underlying matters covered by such provisions; and (ii) the
representations and warranties set forth in Clause 9.1 (Organization and Good Standing), Clause 9.2 (Authority and Enforceability), Clause 9.3(a) (No Conflict), Clause 9.29 (Brokers or
Finders), Clause 9.30 (Solvency),
Clause 10.1 (Organization and Good Standing), Clause 10.2 (Authority and Enforceability), Clause 10.3 (No Conflict), Clause 10.5 (Brokers or
Finders) and Clause 10.6 (Financing)
shall survive indefinitely.


 


11.5.2      All claims for indemnification under Clause 11.1.1
or Clause 11.2.1 must be asserted prior to the expiration of the
applicable survival period set forth in Clause 11.5.1; provided,
however, that if an Indemnified Party delivers to an Indemnifying Party,
before expiration of the applicable survival period of a representation or
warranty as set forth Clause 11.5.1, either a Claim Notice based
upon a breach of any such representation or warranty, or a notice that, as a
result of a claim or demand made by a Person not a party to this Agreement, the
Indemnified Party reasonably expects to incur Losses, then the applicable
representation or warranty shall survive until, but only for purposes of, the
resolution of the matter covered by such notice. If the claim with respect to
which such notice has been given is definitively withdrawn or resolved in favor
of the Indemnified Party, the Indemnified Party shall promptly so notify the
Indemnifying Party.


 


11.6         Limitations on Liability


 


11.6.1      Neither the Seller nor the Purchaser is
liable under
this Clause 11 unless and until the aggregate amount of Losses for
any claims (other than for which they, respectively, would otherwise be liable
under this Agreement exceed USD 1,000,000 (United States Dollar One Million)
(the “Deductible”), in which case
the Indemnifying Party shall, subject to the other limitations contained
herein, be liable for such indemnified Losses in excess of the Deductible; provided,
however, that the foregoing limitation does not apply to the following:


 


11.6.1(a)                 claims under Clause 11.1.1
relating to a breach of the representations and warranties set forth in Clause 9.1
(Organization and Good Standing), Clause 9.2
(Authority and Enforceability), the second
sentence of Clause 9.9 (Assets), Clause 9.15
(Tax Matters), Clause 9.29 (Brokers or Finders) or Clause 9.30 (Solvency);


 


11.6.1(b)                 claims under Clause 11.2.1
relating to a breach of the representations and warranties set forth in Clause 10.1
(Organization and Good Standing), Clause 10.2
(Authority and Enforceability), Clause 10.5
(Brokers or Finders) or Clause 10.6
(Financing);


 


11.6.1(c)                 claims with respect to any Excluded
Liability or Assumed Liability;


 


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11.6.1(d)                 claims with respect to any deficiency of
or failure by the Seller or its Affiliates to obtain a complete and effective
Consent and/or Release of any Encumbrance (as applicable) from any of the
lenders to the Seller or their respective Affiliates in connection with the
transactions contemplated by this Agreement or any Ancillary Agreement


 


11.6.1(e)                 claims for Returns within the first 12
(twelve) months after the Closing Date; or


 


11.6.1(f)                  claims under Clause 11.1.2, Clause 11.1.4,
Clause 11.1.5 or Clause 11.2.2 relating to any of the foregoing.


 


11.6.2      Except as provided under this Clause 11.6.2,
in no event shall the Seller, on the one hand, or the Purchaser, on the other
hand, be liable for Losses for claims made pursuant to Clause 11.1.1
or 11.2.1 in an amount in excess of [                       *                       *                       *                       ] for any and all indemnified Losses
hereunder (the “Liability Cap”). 
Notwithstanding the foregoing, the limitations set forth in this Clause 11.6.2
shall not be applicable to Losses related to Taxes.


 


11.6.3      Nothing in this Agreement shall limit the
Liability of a Party to the other Party for common law fraud or willful
misconduct.


 


11.6.4      The amount of any Losses recoverable by a
party under Clause 11 shall be reduced by the amount of any
insurance proceeds paid to the Indemnified Party relating to such claim.


 


11.6.5      EXCEPT WITH RESPECT TO LOSSES (I) INCURRED
AS THE RESULT OF COMMON LAW FRAUD OR (II) INCLUDED IN A THIRD PARTY CLAIM,
THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES HERETO SHALL NOT EXTEND TO
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION,
LOST PROFITS, PUNITIVE DAMAGES, DIMINUTION OF VALUE, OR LOSS OF BUSINESS
REPUTATION OR OPPORTUNITY.


 


11.6.6      Notwithstanding any provision in this
Agreement to the contrary, subject to the terms of Clause 11.6.7, the
Parties agree that (A) if at any time following the Effective Date, any
Person files a Proceeding alleging that the research, development,
manufacturing, use, import or sale of a product of the Business infringes the
Intellectual Property rights of such Person, (i) the Seller shall be
responsible for the portion of any damages awarded in any Judgment (or agreed
in any settlement of such Proceeding) that correspond to the amount of any
sales of the applicable product of the Business made by the Seller or any of
its Affiliates, distributors or licensees on or prior to the Closing, (ii) the
Purchaser shall be responsible for the portion of any damages awarded in any
Judgment (or agreed in any settlement of such Proceeding) that correspond to
the amount of any sales of the applicable product of the Business made by the
Purchaser or any of its Affiliates, distributors or licensees after the
Closing, and (iii) the costs and expenses of defending such Proceeding
shall be allocated between the Seller and the Purchaser in proportion to the
amount of damages allocated between the Seller and the Purchaser pursuant to
this Clause 11.6.6 and (B) the Purchaser shall not be entitled to
any indemnification by the Seller for any the breaches of the representations
and


 


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warranties made
by the Seller in this Agreement which relate to the facts underlying such
Proceeding.


 


11.6.7      Notwithstanding any provision in this
Agreement to the contrary, the Parties agree that if at any time following the
Effective Date, (i) a product of the Business covered under the Hospira
Agreements is commercially launched (a “Joint
Launched Product”) and (ii) any Person files a Proceeding
alleging that the research, development, manufacturing, use, import or sale of
such Joint Launched Product infringes the Intellectual Property rights of such
Person, (a) any damages awarded in any Judgment of such Proceeding (or
agreed in any settlement of such Proceeding) and any costs and expenses
incurred in defending such Proceeding that correspond to the amount of any
sales of the applicable Joint Launched Product made prior to the Closing shall
be allocated between the Seller and the Purchaser in accordance with the
allocation of indemnification for such matters pursuant to the terms of the
Hospira Agreements as in effect as of the Effective Date and (b) any
damages awarded in any Judgment of such Proceeding (or agreed in any settlement
of such Proceeding) and any costs and expenses incurred in defending such
Proceeding that correspond to the amount of any sales of the applicable Joint
Launched Product made after the Closing shall be allocated to the Purchaser.


 


11.7         Treatment


 


All
indemnification payments made pursuant to this Clause 11 shall be
treated by the Parties as adjustments to the Cash Consideration.


 


11.8         Currency Conversion


 


If an
Indemnified Party has incurred or suffered Losses in a currency other than
Rupees, any amounts expressed in Rupees in this Clause 11 shall be
converted from Rupees to the applicable currency in which the Indemnified Party
has incurred or suffered Losses using the exchange rate between the applicable
currency and the Rupee published in the Wall Street Journal 3 (three) Business
Days prior to the date upon which a final determination as to the payment of
such Losses to the Indemnified Party is made.


 


11.9         Exclusive Remedy


 


Following the Closing, (a) claims
for indemnification pursuant to this Clause 11
and (b) claims for specific performance or any other equitable remedies of
the covenants and obligations of the other Party under this Agreement and the
Ancillary Agreements, shall, collectively, be the sole and exclusive remedies
for claims and damages available to the Parties and their respective Affiliates
for breach of this Agreement; provided, however,
that the limitations set forth in this Clause 11.9 shall not apply
to claims for common law fraud or willful misconduct.


 


11.10       Knowledge


 


Each representation and warranty
contained in Clause 9 is made by the Seller subject to the matters
disclosed in the Seller Disclosure Schedule with respect to such representation
and warranty, and no other information relating to the Seller (including the
Business) of which the Purchaser or any of its Affiliates has actual knowledge
and no investigation by or on behalf of the Purchaser or its Affiliates or any
of their respective agents, representatives, officers,


 


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employees or advisors, shall prejudice
any Claim made by the Purchaser under Clause 11 or operate to reduce any
amount recoverable thereunder.


 


12           TERMINATION


 


12.1         Termination Events


 


This Agreement
may, by written notice given before or at the Closing, be terminated:


 


12.1.1      by mutual Consent of the Purchaser and
the Seller;


 


12.1.2      by the Purchaser if:


 


12.1.2(a)                 there has been a breach of any of the
Seller’s representations, warranties, covenants or agreements contained in this
Agreement, which would result in the failure of a condition set forth in Clause 5.1,
and which breach has not been cured or cannot be cured within 30 (thirty) days
after the notice of the breach from the Purchaser and the Purchaser is not then
in material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement;


 


12.1.2(b)                 there has been a Material Adverse Effect;


 


12.1.2(c)                 the Seller or any of its Affiliates is
declared insolvent, or has filed any petition to initiate bankruptcy
proceedings, suspension of payments, creditor’s arrangement or any other
similar insolvency proceedings;


 


12.1.2(d)                 the Seller has violated or breached any
of its obligations under Clause 6.6;


 


12.1.2(e)                 if at any time following the Effective
Date and prior to the Closing a Judgment (regardless of whether such Judgment
is final and non-appealable) is rendered in the Pip-Tazo Litigation ordering
the withdrawal or revocation of the ANDA granted to the Seller for a generic
form of Wyeth’s piperacillin-tazobactam injections;


 


12.1.2(f)                  the Closing has not occurred (other than
through the failure of the Purchaser to comply fully with its obligations under
this Agreement) on or before the
date that is six (6) months following the Effective Date (or, if the Parties are required to make a filing
under the Competition/Investments Laws of India, and the Closing has not
occurred because the approval has not been obtained or the waiting period under
such Laws has not expired by such date, the date on which the waiting period
for clearance expires or approval under such Laws is declined;


 


12.1.3      by the Seller if:


 


12.1.3(a)                 there has been a breach of any of the
Purchaser’s representations, warranties, covenants or agreements contained in
this Agreement,


 


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which would
result in the failure of a condition set forth in Clause 5.2, and
which breach has not been cured or cannot be cured within 30 (thirty) days
after the notice of breach from the Seller and the Seller is not then in
material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement; or


 


12.1.3(b)                 the Closing has not occurred (other than
through the failure of the Seller to comply fully with its obligations under
this Agreement) on or before the
date that is six (6) months following the Effective Date (or, if the Parties are required to make a filing
under the Competition/Investments Laws of India, and the Closing has not
occurred because the approval has not been obtained or the waiting period under
such Laws has not expired by such date, the date on which the waiting period
for clearance expires or approval under such Laws is declined); provided,
however, that if the Closing has not occurred solely because the Seller
has not complied fully with its obligations under Clause 5.1.9,
then such date may be extended upon the written notice of the Purchaser;


 


12.1.4      by either the Purchaser or the Seller if
any Governmental Authority has issued a non-appealable final Judgment or taken
any other non-appealable final action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement.


 


12.2         Effect of Termination


 


Subject to Clause 12.3, the
Parties’ rights of termination under Clause 12.1 are in addition to
any other rights they may have under this Agreement or otherwise, and the
exercise of such rights of termination is not an election of remedies. Other
than with respect to any termination of this Agreement by the Purchaser
pursuant to Clause 12.1.2(e), if this Agreement is terminated pursuant
to Clause 12.1, this Agreement and all rights and obligations of
the Parties under this Agreement automatically end without Liability against
any of the Parties or its Affiliates, except that: (a) Clause 9.30
(Brokers or Finders), Clause 8.4
(Public Announcements), Clause 13
(Confidentiality), Clause 14
(Governing Law and Arbitration), Clause 15
(Miscellaneous) (except for Clause 15.6  (Specific
Performance)), and this Clause 12.2 shall remain in full
force and survive any termination of this Agreement; and (b) except as
otherwise provided in Clause 3.3, if this Agreement is terminated
by a Party because of the breach of this Agreement by another Party or because
one or more of the conditions to the terminating Party’s obligations under this
Agreement is not satisfied as a result of the other Party’s failure to comply
with its obligations under this Agreement, the terminating Party’s right to
pursue all legal remedies shall survive such termination unimpaired.


 


12.3         Effect of Termination under Clause
12.1.2(e)


 


12.3.1      If this Agreement is terminated pursuant
to Clause 12.1.2(e), this Agreement and all rights and obligations
of the Parties under this Agreement automatically end without Liability against
any of the Parties or its Affiliates, except that (a) Clause 9.30
(Brokers or Finders), Clause 8.4
(Public Announcements), Clause 13
(Confidentiality), Clause 14
(Governing Law and Arbitration), Clause 15
(Miscellaneous) (except for Clause 15.6


 


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SEC.


 


(Specific Performance)), and this Clause 12.3
shall remain in full force and survive any termination of this Agreement.


 


12.3.2      The Parties agree that, notwithstanding
any other provision in this Agreement to the contrary, if at any time following
the Effective Date a Judgment (regardless of whether such Judgment is final and
non-appealable) is rendered in the Pip-Tazo Litigation ordering the withdrawal,
revocation or modification of one or more of the ANDAs granted to the Seller
for a generic form of Wyeth’s piperacillin-tazobactam injections, the
unilateral termination right of the Purchaser under Clause 12.1.2(e) and
the rights set forth in this Clause 12.3 shall be the sole remedy of the
Purchaser and the Purchaser shall not be entitled to any indemnification for
any the breaches of the representations and warranties hereunder made by the
Seller which relate to the Pip-Tazo Litigation.


 


12.3.3      At its sole option, prior to exercising
its right to terminate this Agreement pursuant to Clause 12.1.2(e), the
Purchaser may notify the Seller in writing (a “Clause 12.1.2(e) Notice”) that it intends to exercise
such termination right pursuant to Clause 12.1.2(e).  In such case, the Seller agrees to negotiate
exclusively for 21 (twenty one) days with the Purchaser for any modifications
in the terms of this Agreement that the Purchaser deems to be necessary.


 


13           CONFIDENTIALITY


 


13.1         General Obligation


 


Beginning on
the date of this Agreement, each Party agrees and undertakes that it shall not
reveal, and shall use its reasonable efforts to ensure that its directors,
officers, managers, employees (including those on secondment), Affiliates,
legal, financial and professional advisors, bankers and sources of funding
(collectively, “Representatives”) to whom
Confidential Information is made available do not reveal, to any third party
any Confidential Information nor use such Confidential Information for any
purpose other than the express reason such Confidential Information was
provided without the prior written consent of the concerned disclosing Party. The
term “Confidential Information” as used in
this Agreement means: (a) any information concerning the organization,
business, Intellectual Property, technology, trade secrets, know-how, finance,
transactions or affairs of the disclosing Party or any of their respective
Representatives (whether conveyed in written, oral or in any other form and
whether such information is furnished before, on or after the Closing Date); (b) any
information whatsoever concerning or relating to: (i) any dispute or Claim
arising out of or in connection with this Agreement; or (ii) the
resolution of such Claim or dispute; and (c) any information or materials
prepared by or for a Party or its Representatives that contain or otherwise
reflect, or are generated from, Confidential Information.


 


13.2         Exceptions


 


The provisions
of Clause 13.1 above shall not apply to:


 


13.2.1      disclosure of Confidential Information that is
or comes into the public domain or becomes generally available to the public
other than through the act or omission of or as a result of disclosure by or at
the direction of a Party or any of its Representatives in breach of this
Agreement;


 


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SEC.


 


13.2.2      disclosure, after giving prior notice to the
other Parties to the extent practicable under the circumstances or permissible
by Law and subject to any practicable arrangements to protect confidentiality,
to the extent required under applicable Laws or governmental regulations or
judicial process or generally accepted accounting principles applicable to any
Party;


 


13.2.3      Confidential Information acquired independently
by a Party from a third party source not obligated to the Party disclosing
Confidential Information to keep such information confidential;


 


13.2.4      Confidential Information already known or
already in the lawful possession of the Party receiving Confidential
Information as of the date of its disclosure by the Person disclosing such
Confidential Information;


 


13.2.5      Disclosure to a Governmental Authority,
mediator or arbitrator solely to the extent necessary to enforce its rights
(including remedies) under this Agreement; and


 


13.2.6      disclosure by a Party to any of its
Representatives, provided that such Representative is bound by confidentiality
obligations no less restrictive than those set forth herein.


 


14           GOVERNING LAW AND
ARBITRATION


 


14.1         Governing Law


 


The internal
laws of India (without giving effect to any choice or conflict of law provision
or rule (whether of India or any other jurisdiction) that would cause the
application of laws of any other jurisdiction) govern all matters arising out of or relating to this Agreement
and its Schedules and Exhibits and all of the transactions it contemplates,
including its validity, interpretation, construction, performance and
enforcement and any disputes or controversies arising therefrom or related
thereto.


 


14.2         Arbitration


 


14.2.1      All controversies, disputes or claims
arising out of or relating in any way to this Agreement, the Ancillary
Agreements or the transactions contemplated hereunder or thereunder, including
any dispute as to the existence, validity, performance, breach or termination
hereof or thereof, (each, a “Dispute”)
that cannot be resolved among such Parties within 30 (thirty) days from the
date that such Dispute arose, or such extended period as such Parties may
agree, shall be referred to binding arbitration at the written request of any
Party (a “Dispute Notice”) in
accordance with the (Indian) Arbitration and Conciliation Act, 1996.


 


14.2.2      The arbitrators shall have power to award
and/or enforce specific performance.


 


14.2.3      The location of the arbitration
shall be in Singapore and the arbitration shall be conducted in the English
language.


 


14.2.4      The arbitrators’
award shall be in writing and shall contain reasons for the decision.


 


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14.2.5      The arbitrators’
award shall be binding on the Parties and the award shall be enforceable in any
competent court of law. The non-prevailing party shall be required to bear the
costs of the arbitration proceedings.


 


14.2.6      Neither the existence of any Dispute nor
the fact that any arbitration is pending hereunder shall relieve any of the
Parties of their respective obligations under this Agreement. The pendency of
Dispute in any arbitration proceeding shall not affect the performance of the
obligations under this Agreement.


 


15           MISCELLANEOUS


 


15.1         Notices


 


15.1.1      All notices and other communications
under this Agreement must be in writing and are deemed duly delivered when: (a) delivered
if delivered personally or by nationally recognized overnight courier service
(costs prepaid); or (b) sent by facsimile with confirmation of
transmission by the transmitting equipment (or, the first Business Day
following such transmission if the date of transmission is not a Business Day);
in each  case to the following addresses
or facsimile numbers and marked to the attention of the individual (by name or
title) designated below (or to such other address, facsimile number or
individual as a Party may designate by notice to the other Parties):


 


In the case of notices to the Seller or KRR:


 


	
  Address
  

  	
  : Orchid
  Towers

  
	
   

  	
  No. 313, Valluvar Koddam High Road

  
	
   

  	
  Nungambakkam, Chennai 600 034, India

  
	
  Facsimile

  	
  :
  + 91 44 2827 5150

  
	
  Attention

  	
  :
  Dr. C.B. Rao

  



 


with
copies to (which shall not constitute notice):


 


	
  Address

  	
  :
  Latham & Watkins LLP

  
	
   

  	
  12636 High Bluff Drive

  
	
   

  	
  Suite 400

  
	
   

  	
  San Diego, CA 92130-2071

  
	
  Facsimile

  	
  :
  + 1 858-523-5450

  
	
  Attention

  	
  : Steven T. Chinowsky, Esq.

  



 


and


 


	
  Address

  	
  :
  Crawford Bayley & Co.

  
	
   

  	
  Advocates & Solicitors

  
	
   

  	
  State Bank Buildings

  
	
   

  	
  N.G. N. Vaidya Marg

  
	
   

  	
  Fort, Mumbai 400 023, India

  
	
  Facsimile

  	
  :
  + 91 22 2266 3978

  
	
  Attention

  	
  : Sanjay Asher, Esq.

  



 


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confidential treatment request. This text has been separately filed with the
SEC.


 


In the case of notices to
the Purchaser:


 


	
  Address

  	
  :
  275 North Field Drive

  
	
   

  	
  Dept. NLEG; Bldg. H-1

  
	
   

  	
  Lake Forest, Illinois 60045

  
	
  Facsimile

  	
  :
  + 1 224-212-2088

  
	
  Attention

  	
  : General
  Counsel

  



 


with a copy to (which shall not constitute notice):


 


	
  Address

  	
  :
  Khaitan & Co.

  
	
   

  	
  One
  Indiabulls Centre, 13th Floor

  
	
   

  	
  841
  Senapati Bapat Marg

  
	
   

  	
  Elphinstone
  Road

  
	
   

  	
  Mumbai
  400 013, India

  
	
  Facsimile

  	
  :
  +91 22 6636 5050

  
	
  Attention

  	
  :
  Haigreve Khaitan

  



 


and with a copy to (which
shall not constitute notice):


 


	
  Address

  	
  : Baker & McKenzie LLP

  
	
   

  	
  One Prudential Plaza

  
	
   

  	
  130 East Randolph Drive

  
	
   

  	
  Chicago, Illinois 60601

  
	
  Facsimile

  	
  : +1 312 861 2899

  
	
  Attention

  	
  : Pablo Garcia-Moreno

  
	
   

  	
  Olivia Tyrrell

  
	
   

  	
  Michael F. DeFranco

  



 


15.1.2      Either Party may, from time to time,
change its address or representative for receipt of notices provided for in
this Agreement by giving to notice to the other Party.


 


15.2         Further Assurances


 


The Parties to
this Agreement shall from time to time execute and deliver all such further
documents and do all acts and things as the other Party may reasonably require
to effectively carry on the full intent and meaning of the Agreement and to the
complete the transactions contemplated hereunder.


 


15.3         Amendments


 


No modification
or amendment to this Agreement shall be valid or binding unless made in writing
and duly executed by or on behalf of the Seller and the Purchaser and, in the
case of amendments to any of Clauses 8.6.1 through and including Clause
8.6.4 that would affect KRR, KRR.


 


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SEC.


 


15.4                        Waiver and Remedies


 


The Parties
may: (a) extend the time for performance of any of the obligations or
other acts of the other Party; (b) waive any inaccuracies in the
representations and warranties of the other Party contained in this Agreement
or in any certificate, instrument or document delivered pursuant to this
Agreement; or (c) waive compliance with any of the covenants, agreements
or conditions for the benefit of such Party contained in this Agreement. Any
such extension or waiver by any Party shall be valid only if set forth in a
written document signed on behalf of the other Parties against whom the waiver
or extension is to be effective. No extension or waiver shall apply at any time
for performance, inaccuracy in any representation or warranty, or
non-compliance with any covenant, agreement or condition, as the case may be,
other than that which is specified in the written extension or waiver. No
failure or delay by any Party in exercising any right or remedy under this
Agreement or any of the documents delivered pursuant to this Agreement, and no
course of dealing between the Parties, operates as a waiver of such right or
remedy, and no single or partial exercise of any such right or remedy precludes
any other or further exercise of such right or remedy or the exercise of any
other right or remedy. Any enumeration of a Party’s rights and remedies in this
Agreement is not intended to be exclusive, and a Party’s rights and remedies
are intended to be cumulative to the extent permitted by law and include any
rights and remedies authorized in law or in equity.


 


15.5                        Assignment and Successors and No Third
Party Rights


 


This Agreement
binds and benefits the Parties and their respective heirs, executors,
administrators, successors and assigns; provided, however, that (i) neither
the Seller nor KRR may assign any of their respective rights under this
Agreement without the prior written Consent of the Purchaser other than,
following the Closing, in connection with a sale or transfer of all or
substantially all of the assets of the Seller and (ii) prior to the
Closing, the Purchaser may not assign any of its rights under this Agreement
without the prior written Consent of the Seller other to one or more of its
Affiliates.  Nothing expressed or
referred to in this Agreement shall be construed to give any Person (including
any Business Employees), other than the Parties, any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision of
this Agreement except such rights as may inure to a successor or permitted
assignee under this Clause 15.5. 
Following the Closing, the Purchaser shall be entitled to assign any of
its rights and/or obligations (including the benefit or any representations,
warranties or indemnities) to any other Person and to hold the representations
and warranties hereunder for the benefit of any other Person.


 


15.6                        Specific Performance


 


The Parties
agree that damages may not be an adequate remedy and the Purchaser shall be
entitled to an injunction, restraining order, right for recovery, suit for
specific performance or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain the Seller from
committing any violation or enforce the performance of the covenants,
representations and obligations contained in this Agreement. These injunctive
remedies are cumulative and are in addition to any other rights and remedies
the Parties may have at law or in equity, including a right for damages.


 


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SEC.


 


15.7                        Expenses


 


Except as
otherwise provided in this Agreement, each Party shall pay its respective
direct and indirect expenses incurred by it in connection with the preparation
and negotiation of this Agreement and the consummation of the transactions
contemplated by this Agreement, including all fees and expenses of its advisors
and representatives. If this Agreement is terminated, the obligation of each
Party to pay its own expenses shall be subject to any rights of such Party
arising from any breach of this Agreement by the other Party.


 


15.8                        Entire Agreement


 


This Agreement
(including the Schedules and Exhibits hereto and the documents and instruments
referred to in this Agreement that are to be delivered at the Closing)
constitutes the entire agreement of the Parties and KRR relating to the subject
matter hereof and supersedes any and all prior agreements, including letters of
intent and term sheets, either oral or in writing, between the Parties and KRR
with respect to the subject matter herein.


 


15.9                        Partial Invalidity


 


If any
provision of this Agreement or the application thereof to any Person or
circumstance shall be held invalid, illegal or unenforceable to any extent for
any reason, including by reason of any law or regulation or government policy,
the remainder of this Agreement and the application of such provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable shall not be affected thereby, and each provision of
this Agreement shall be valid and enforceable to the fullest extent permitted
by law. Any invalid, illegal or unenforceable provision of this Agreement shall
be replaced with a provision, which is valid and enforceable and most nearly
reflects the original intent of the invalid, illegal or unenforceable
provision.


 


15.10                 Schedules and Exhibits


 


The Schedules
(including the Seller Disclosure Schedule) and Exhibits to this Agreement are
incorporated herein by reference and made a part of this Agreement. The Seller
Disclosure Schedule is arranged in sections and paragraphs corresponding to the
numbered and lettered sections and paragraphs of Clause 9. The disclosure in any section or paragraph of
the Seller Disclosure Schedule qualifies other sections and paragraphs in this
Agreement only to the extent it is clear by appropriate cross-references that a
given disclosure is applicable to such other sections and paragraphs. The
listing or inclusion of a copy of a document or other item is not adequate to
disclose an exception to any representation or warranty in this Agreement
unless the representation or warranty relates to the existence of the document
or item itself.


 


15.11                 Counterparts


 


This Agreement
may be executed in multiple counterparts, each of which when so executed and
delivered shall be deemed an original but all of which together shall
constitute one and the same instrument and any Party may execute this Agreement
by signing any one or more of such originals or counterparts. The delivery of
signed counterparts by facsimile transmission or electronic mail in “portable
document format” (“.pdf”) shall be as effective as signing and delivering the
counterpart in person.


 


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SEC.


 


15.12                 Performance of Obligations by Affiliates


 


Any obligation
of a Party under or pursuant to this Agreement may be satisfied, met or
fulfilled, in whole or in part, at the Party’s sole and exclusive option,
either by such Party directly or by any Affiliates of such Party that the Party
cause to satisfy, meet or fulfill such obligation in whole or in part. With
respect to any particular action, the use of the words “Purchaser shall” also
means “Purchaser shall cause” the particular action to be performed, the use of
the words “Seller shall” also means “Seller shall cause” the particular action
to be performed. Each of the Purchaser and the Seller guarantee the performance
of all actions, agreements and obligations to be performed by any of their
respective Affiliates under the terms and conditions of this Agreement.


 


15.13                 No Joint Venture


 


Nothing in this
Agreement creates a joint venture or partnership between the Parties. This
Agreement does not authorize any Party: (a) to bind or commit, or to act
as an agent, employee or legal representative of, any other Party, except as
may be specifically set forth in other provisions of this Agreement; or (b) to
have the power to control the activities and operations of any other Party. The
Parties are independent contractors with respect to each other under this
Agreement. Each Party agrees not to hold itself out as having any authority or
relationship contrary to this Clause 15.13.


 


15.14                 Mutual Goodwill


 


This Agreement
is entered into in a spirit of goodwill and the Parties covenant with each
other that each Party shall render at all times all reasonable assistance in
its power to facilitate successful implementation of this Agreement and/or
provide any information or document in its possession, which the other Party
may reasonably require for the purpose of this Agreement.


 


[FOLLOWING THIS PAGE IS THE EXECUTION PAGE]


 


109

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


IN WITNESS WHEREOF,
the Parties have caused this Agreement to be duly executed and delivered by
their duly authorized representatives as of the day and year hereinabove
written.


 


Signed and delivered for and on behalf of the
Seller


 


	
  /s/ K. Raghavendra Rao

  	
   

  
	
  By:

  	
  K. Raghavendra Rao

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  



 


Authorized by resolution of the board of
directors of the Seller dated December 15, 2009


 


 


Signed and delivered, solely for purposes of Clause
8.6.1 through and including Clause 8.6.4 by KRR


 


	
  /s/ K. Raghavendra Rao

  	
   

  
	
   

  	
   

  
	
  Mr. K. RAGHAVENDRA RAO

  	
   

  



 


 


Signed and delivered for and on behalf of the
Purchaser


 


	
  /s/ Christopher B. Begley

  	
   

  
	
  By:

  	
  Christopher B. Begley

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  



 


Authorized by resolution of the board of
directors of the Purchaser dated December 15, 2009


 


110

















 


CONFIDENTIAL TREATMENT


[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.


 


EXHIBIT G


FORM OF
CLOSING CERTIFICATE


 


[Insert Date]


 


To
[                               ]


 


 


Sub:                      Certificate under Clause [·] of the Business Transfer
Agreement dated [·] among [insert
name of the parties] (“Agreement”)


 


Dear
Sirs


 


In
fulfillment of all the conditions mentioned in Clause [·]
(Conditions Precedent) of the Agreement,
we hereby confirm as under and enclose herewith the following documents as
evidence of the fulfillment of the Conditions Precedent thereof:


 


	
  Clause
  No. in the

  Agreement

  	
   

  	
  Confirmation Given / Documentary Proof Enclosed

  	
   

  
	
  [·]

  	
   

  	
  [·]

  	
   

  
	
  [·]

  	
   

  	
  [·]

  	
   

  



 


 


We
therefore certify and confirm that all of the Conditions Precedent have been
complied with.


 


Terms
used but not defined herein shall have the meaning attributed to them under the
Agreement.


 


Yours
faithfully


 


For
and on behalf of

Insert name of [                                            ]


 


 


	
   

  	
   

  



Authorized Signatory