EX-10.1



 





Exhibit 10.1







SHARE PURCHASE AGREEMENT



relating to the shares in Organon BioSciences N.V.,
the holding company for the human healthcare and
animal healthcare activities of the Akzo Nobel group




Between



AKZO NOBEL N.V.

(as Seller)




And



SCHERING-PLOUGH INTERNATIONAL C.V.

(as Purchaser)




and



SCHERING-PLOUGH CORPORATION

(as Purchaser Parent and Guarantor)




dated       30 September 2007



 









 





Table of Contents




			
	     Clause
	 	Page






	 	 	 	 	 	 	 
	1.

	 	INTERPRETATION
	 	 	7	 
	 
	 	 	 	 	 	 
	1.1

	 	Definitions
	 	 	7	 
	 
	 	 	 	 	 	 
	1.2

	 	References to persons and companies
	 	 	7	 
	 
	 	 	 	 	 	 
	1.3

	 	Headings and references to Clauses, Schedules, Parts and Paragraphs
	 	 	7	 
	 
	 	 	 	 	 	 
	1.4

	 	References to liabilities and obligations
	 	 	7	 
	 
	 	 	 	 	 	 
	1.5

	 	Information
	 	 	8	 
	 
	 	 	 	 	 	 
	1.6

	 	Legal terms
	 	 	8	 
	 
	 	 	 	 	 	 
	1.7

	 	Other references
	 	 	8	 
	 
	 	 	 	 	 	 
	1.8

	 	Third party stipulations
	 	 	8	 
	 
	 	 	 	 	 	 
	1.9

	 	Drafting Party
	 	 	8	 
	 
	 	 	 	 	 	 
	2.

	 	SALE AND PURCHASE
	 	 	8	 
	 
	 	 	 	 	 	 
	2.1

	 	Shares
	 	 	8	 
	 
	 	 	 	 	 	 
	2.2

	 	Purchase of Group Companies
	 	 	8	 
	 
	 	 	 	 	 	 
	3.

	 	CONSIDERATION
	 	 	10	 
	 
	 	 	 	 	 	 
	3.1

	 	Purchase Price
	 	 	10	 
	 
	 	 	 	 	 	 
	3.2

	 	Payments at Closing
	 	 	10	 
	 
	 	 	 	 	 	 
	3.3

	 	Adjustment to Purchase Price
	 	 	10	 
	 
	 	 	 	 	 	 
	4.

	 	CONDITIONS PRECEDENT; ANTI-TRUST APPROVALS
	 	 	10	 
	 
	 	 	 	 	 	 
	4.1

	 	Conditions
	 	 	10	 
	 
	 	 	 	 	 	 
	4.2

	 	Responsibility for satisfaction; Anti-trust Approvals
	 	 	11	 
	 
	 	 	 	 	 	 
	4.3

	 	(Non-)Satisfaction/Waiver
	 	 	13	 
	 
	 	 	 	 	 	 
	5.

	 	PRE-CLOSING COVENANTS
	 	 	13	 
	 
	 	 	 	 	 	 
	5.1

	 	Conduct of business
	 	 	13	 
	 
	 	 	 	 	 	 
	5.2

	 	Access to Operations
	 	 	15	 
	 
	 	 	 	 	 	 
	5.3

	 	Intra-group agreements and Master TSA
	 	 	16	 
	 
	 	 	 	 	 	 
	5.4

	 	Estimated Net Debt Statement
	 	 	16	 
	 
	 	 	 	 	 	 
	5.5

	 	Cooperation with Financing
	 	 	17	 
	 
	 	 	 	 	 	 
	5.6

	 	Financing obligations of Purchaser and Purchaser Parent and Guarantor
	 	 	18	 
	 
	 	 	 	 	 	 
	5.7

	 	Loan agreements
	 	 	18	 
	 
	 	 	 	 	 	 
	6.

	 	CLOSING
	 	 	19	 
	 
	 	 	 	 	 	 
	6.1

	 	Date and place
	 	 	19	 






2









 






	 	 	 	 	 	 	 
	6.2

	 	Payment of Estimated Purchase Price; Closing actions
	 	 	19	 
	 
	 	 	 	 	 	 
	6.3

	 	Repayment of Estimated Intra-Group Indebtedness
	 	 	19	 
	 
	 	 	 	 	 	 
	6.4

	 	Breach of Closing obligations
	 	 	19	 
	 
	 	 	 	 	 	 
	7.

	 	POST-CLOSING ADJUSTMENT
	 	 	20	 
	 
	 	 	 	 	 	 
	7.1

	 	Net Debt Statement
	 	 	20	 
	 
	 	 	 	 	 	 
	7.2

	 	Adjustments to Purchase Price and repayment of Intra-Group Indebtedness
	 	 	21	 
	 
	 	 	 	 	 	 
	8.

	 	WARRANTIES
	 	 	22	 
	 
	 	 	 	 	 	 
	8.1

	 	Seller’s Warranties
	 	 	22	 
	 
	 	 	 	 	 	 
	8.2

	 	Disclosure
	 	 	23	 
	 
	 	 	 	 	 	 
	8.3

	 	Purchaser’s and Purchaser Parent and Guarantor’s Warranties
	 	 	23	 
	 
	 	 	 	 	 	 
	8.4

	 	Liability for breach
	 	 	24	 
	 
	 	 	 	 	 	 
	8.5

	 	Master Separation Agreement
	 	 	24	 
	 
	 	 	 	 	 	 
	9.

	 	LIMITATION OF LIABILITY
	 	 	25	 
	 
	 	 	 	 	 	 
	9.1

	 	Time limitation
	 	 	25	 
	 
	 	 	 	 	 	 
	9.2

	 	Minimum claims
	 	 	26	 
	 
	 	 	 	 	 	 
	9.3

	 	Aggregate minimum claims
	 	 	26	 
	 
	 	 	 	 	 	 
	9.4

	 	Maximum liability
	 	 	26	 
	 
	 	 	 	 	 	 
	9.5

	 	Provisions
	 	 	26	 
	 
	 	 	 	 	 	 
	9.6

	 	Matters arising after Reference Time / Effective Time
	 	 	26	 
	 
	 	 	 	 	 	 
	9.7

	 	Purchaser’s Insurance
	 	 	27	 
	 
	 	 	 	 	 	 
	9.8

	 	Net financial benefit
	 	 	27	 
	 
	 	 	 	 	 	 
	9.9

	 	Mitigation of Losses
	 	 	27	 
	 
	 	 	 	 	 	 
	9.10

	 	Purchaser’s right to recover
	 	 	27	 
	 
	 	 	 	 	 	 
	10.

	 	CLAIMS
	 	 	28	 
	 
	 	 	 	 	 	 
	10.1

	 	Notification of potential claims
	 	 	28	 
	 
	 	 	 	 	 	 
	10.2

	 	Notification of claims
	 	 	28	 
	 
	 	 	 	 	 	 
	10.3

	 	Commencement of proceedings
	 	 	29	 
	 
	 	 	 	 	 	 
	10.4

	 	Investigation by Seller
	 	 	29	 
	 
	 	 	 	 	 	 
	10.5

	 	Procedure for third party claims
	 	 	29	 
	 
	 	 	 	 	 	 
	10.6

	 	Third party stipulation limitation
	 	 	30	 
	 
	 	 	 	 	 	 
	11.

	 	TAX MATTERS
	 	 	30	 
	 
	 	 	 	 	 	 
	12.

	 	RESTRICTIONS
	 	 	30	 
	 
	 	 	 	 	 	 
	12.1

	 	Restrictions on Seller
	 	 	30	 
	 
	 	 	 	 	 	 
	12.2

	 	Restriction on Purchaser
	 	 	31	 
	 
	 	 	 	 	 	 
	13.

	 	PURCHASER PARENT AND GUARANTOR GUARANTEE
	 	 	31	 






3









 






	 	 	 	 	 	 	 
	13.1

	 	Guarantee
	 	 	31	 
	 
	 	 	 	 	 	 
	13.2

	 	Default; enforcement; non-waiver
	 	 	31	 
	 
	 	 	 	 	 	 
	14.

	 	CONFIDENTIALITY
	 	 	31	 
	 
	 	 	 	 	 	 
	14.1

	 	Announcements
	 	 	31	 
	 
	 	 	 	 	 	 
	14.2

	 	Confidentiality undertaking
	 	 	32	 
	 
	 	 	 	 	 	 
	15.

	 	MISCELLANEOUS
	 	 	33	 
	 
	 	 	 	 	 	 
	15.1

	 	Further assurances
	 	 	33	 
	 
	 	 	 	 	 	 
	15.2

	 	Whole agreement
	 	 	33	 
	 
	 	 	 	 	 	 
	15.3

	 	No assignment
	 	 	33	 
	 
	 	 	 	 	 	 
	15.4

	 	Waiver
	 	 	33	 
	 
	 	 	 	 	 	 
	15.5

	 	Variation
	 	 	34	 
	 
	 	 	 	 	 	 
	15.6

	 	Third party rights
	 	 	34	 
	 
	 	 	 	 	 	 
	15.7

	 	Rescission
	 	 	34	 
	 
	 	 	 	 	 	 
	15.8

	 	Method of payment
	 	 	34	 
	 
	 	 	 	 	 	 
	15.9

	 	Costs
	 	 	34	 
	 
	 	 	 	 	 	 
	15.10

	 	Interest
	 	 	34	 
	 
	 	 	 	 	 	 
	15.11

	 	Notices
	 	 	35	 
	 
	 	 	 	 	 	 
	15.12

	 	Invalidity
	 	 	35	 
	 
	 	 	 	 	 	 
	15.13

	 	Counterparts
	 	 	36	 
	 
	 	 	 	 	 	 
	15.14

	 	Notary
	 	 	36	 
	 
	 	 	 	 	 	 
	15.15

	 	Dispute resolution
	 	 	36	 
	 
	 	 	 	 	 	 
	15.16

	 	Governing law
	 	 	37	 






4









 





Schedules




	 	 	 
	Schedule 1

	 	Definitions
	 
	 	 
	Schedule 2

	 	Group Companies
	 
	 	 
	Schedule 3

	 	Retained Intra-Group Agreements
	 
	 	 
	Schedule 4

	 	Closing obligations
	 
	 	 
	Schedule 5

	 	Closing Anti-trust Approvals
	 
	 	 
	Schedule 6

	 	Net Debt Statement, Reporting Accountants
	 
	 	 
	Schedule 7

	 	Warranties and Disclosure
	 
	 	 
	Schedule 8

	 	Tax Indemnities and Tax matters
	 
	 	 
	Schedule 9

	 	Commitment Letter
	 
	 	 
	Schedule 10

	 	Data Room
	 
	 	 
	Schedule 11

	 	Certain correspondence and written material
	 
	 	 
	Schedule 12

	 	Amended and Restated Master Separation Agreement and related
Amendment Agreement
	 
	 	 
	Schedule 13

	 	Affiliation Agreement
	 
	 	 
	Schedule 14

	 	Addendum







5









 






Share Purchase Agreement




THIS AGREEMENT IS MADE BETWEEN:




	 	(1)	 	Akzo Nobel N.V., a public limited liability company
(`naamloze vennootschap ́)
incorporated in the Netherlands, whose corporate seat is in Amsterdam, the Netherlands,
and whose address is at Strawinskylaan 2555, 1077 ZZ Amsterdam, the Netherlands,
(“Seller”),
	 
	 	(2)	 	Schering-Plough International C.V., a limited partnership (commanditaire
vennootschap) established in Amsterdam, the Netherlands and whose address is at 2000
Galloping Hill Road, Kenilworth, NJ 07033, United States of America (“Purchaser”),






and




	 	(3)	 	Schering-Plough Corporation, a New Jersey corporation, with principal executive
offices at 2000 Galloping Hill Road, Kenilworth, NJ 07033, United States of America,
acting for and on behalf of itself, (“Purchaser Parent and Guarantor”).






WHEREAS:




	 	(A)	 	Organon BioSciences N.V., (as further defined in Schedule 1, the “Company”) is the
holding company for the Group, which comprises the human healthcare and animal healthcare
activities of Seller’s Group;
	 
	 	(B)	 	Immediately prior to the Reference Time, Seller and the Company were in the final
stages of preparing for the commencement of an initial public offering of shares of the
Company;
	 
	 	(C)	 	Purchaser Parent and Guarantor has approached Seller expressing its confidence in
acquiring the Shares of the Company on terms and conditions that, in Purchaser Parent and
Guarantor’s view, offer Seller’s shareholders significantly greater value than an initial
public offering of the Company, even on a long-term basis;
	 
	 	(D)	 	Seller and Purchaser entered into the Confidentiality Agreement, pursuant to which
certain confidential information relating to the Group was made available to Purchaser
and its Representatives;
	 
	 	(E)	 	Seller gave Purchaser and its Representatives access to the Data Room, as well as
the opportunity to attend and participate in management presentations, and to ask
questions and carry out investigations in relation to the Group and the Operations;







6









 






	 	(F)	 	Seller wishes to sell and transfer the Shares in the Company to Purchaser, and
Purchaser wishes to acquire same, on and subject to the terms and conditions set out in
this Agreement; and
	 
	 	(G)	 	Purchaser Parent and Guarantor has agreed to guarantee to Seller the performance by
Purchaser of its obligations under this Agreement.






IT IS AGREED AS FOLLOWS:




	1.	 	INTERPRETATION
	 
	 	 	In this Agreement, unless the context otherwise requires, the provisions in this Clause 1
apply throughout:
	 
	1.1	 	Definitions
	 
	 	 	Capitalized words, including those used in the introduction and preamble of this Agreement,
shall have the meaning as defined in Schedule 1.
	 
	1.2	 	References to persons and companies
	 
	 	 	References to:






	 	1.2.1	 	a person include any individual, company, partnership or unincorporated association
(whether or not having separate legal personality); and
	 
	 	1.2.2	 	a company include any company, corporation or any body corporate, wherever
incorporated.






	1.3	 	Headings and references to Clauses, Schedules, Parts and Paragraphs






	 	1.3.1	 	Headings have been inserted for convenience of reference only and do not affect the
interpretation of any of the provisions of this Agreement.
	 
	 	1.3.2	 	A reference in this Agreement to a Clause or Schedule is to the relevant Clause of or
Schedule to this Agreement; to a Part is to the relevant Part of the relevant Schedule; and
to a Paragraph is to the relevant Paragraph of (the relevant Part of) the relevant
Schedule.






	1.4	 	References to liabilities and obligations






	 	1.4.1	 	Any reference in this Agreement to a liability or obligation of (any member of)
Seller’s Group shall be deemed to incorporate a reference to an obligation on the part of
Seller to procure that the relevant liability is discharged or obligation is performed by
the relevant member of Seller’s Group, on and subject to the terms and conditions set out
in this Agreement.
	 
	 	1.4.2	 	Any reference in this Agreement to a liability or obligation of (any member of)
Purchaser’s Group shall be deemed to incorporate a reference to an obligation on the





7









 






	 	 	 	part of Purchaser to procure that the relevant liability is discharged or obligation is
performed by the relevant member of Purchaser’s Group, on and subject to the terms and
conditions set out in this Agreement.






	1.5	 	Information
	 
	 	 	References to books, records or other information include books, records or other information
stored in any form including paper, magnetic media, films, microfilms, electronic storage
devices and any other data carriers.
	 
	1.6	 	Legal terms
	 
	 	 	In respect of any jurisdiction other than the Netherlands, a reference to any Netherlands
legal term shall be construed as a reference to the term or concept which most nearly
corresponds to it in that jurisdiction.
	 
	1.7	 	Other references






	 	1.7.1	 	Whenever used in this Agreement, the words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation”.
	 
	 	1.7.2	 	Any reference in this Agreement to any gender shall include all genders, and words
importing the singular shall include the plural and vice versa.






	1.8	 	Third party stipulations
	 
	 	 	A third party stipulation (`derdenbeding ́) expressly identified as such in this Agreement,
shall be for the benefit of and enforceable by the relevant third parties, provided that the
Parties exclude the applicability of articles 6:254, 6:255 and 6:256 of the Netherlands Civil
Code. A third party stipulation expressly contained in this Agreement shall only be available
to the third party after written acceptance thereof, delivered to the Party that has given the
third party stipulation, which acceptance shall also be required to expressly state acceptance
of the application of the relevant provisions of this Agreement (including the provisions of
Clauses 9, 10, 15.15 and 15.16) to the third party stipulation. No Party that has given a
third party stipulation herein will revoke such stipulation.
	 
	1.9	 	Drafting Party
	 
	 	 	No provision of this Agreement shall be interpreted against a Party solely as a result of the
fact that such Party was responsible for the drafting of such provision.
	 
	2.	 	SALE AND PURCHASE
	 
	2.1	 	Shares
	 
	 	 	On and subject to the terms and conditions of this Agreement, Seller hereby sells to
Purchaser, which hereby purchases, the Shares.
	 
	2.2	 	Purchase of Group Companies






	 	2.2.1	 	Upon the written request of Purchaser, given not less than 30 (thirty) Business Days
prior to Closing, and subject to the prior written consent of Seller, which may be given or
withheld or withdrawn at any time in Seller’s sole discretion, on the Closing Date Seller
shall directly sell and transfer to Purchaser or another member of Purchaser’s Group, as
the case may be, in one or more transactions, all of the Interests in one or






8










 






	 	 	 	more Group
Companies (other than the Company) for an amount of consideration agreed upon between
Purchaser and Seller (in each case, a “Group Company Sale”), provided that Purchaser shall,
at its risk, cost and expense, procure that all preparatory actions, filings and documents are taken or prepared, subject to Seller’s prior review
and approval, by Purchaser’s relevant Representatives in connection with each Group
Company Sale.
	 
	 	2.2.2	 	In the event of a Group Company Sale, Seller shall undertake any transactions
consistent with Law necessary to enable Seller to hold directly on the Closing Date the
Interests in any Group Company that is the subject of the Group Company Sale (each, a
“Restructuring Transaction”).
	 
	 	2.2.3	 	Purchaser and Seller agree that the Purchase Price shall be reduced by the aggregate
amount of consideration paid by Purchaser or another member of Purchaser’s Group as the
case may be, to Seller, in all Group Company Sales.
	 
	 	2.2.4	 	To the extent Seller determines, in its sole judgment, that the aggregate amount of
Tax or other costs incurred by Seller or another member of Seller’s Group in connection
with any Group Company Sales (and any Restructuring Transactions described in Clause 2.2.2)
is increased compared to the amount of Tax or other costs that otherwise would have been
incurred by Seller or another member of Seller’s Group with respect to the transactions
contemplated by this Agreement in the absence of such Group Company Sales or Restructuring
Transactions, Purchaser agrees to indemnify and hold harmless Seller against the amount of
such increase in Tax or other cost, and shall pay the amount of such Tax or other cost,
including gross-up, as reasonably demonstrated by Seller (and, in the event of a
disagreement, determined by an independent third party to be agreed upon by Seller and
Purchaser), to Seller on the Closing Date or, if Closing does not occur for any reason,
immediately upon termination of this Agreement.
	 
	 	2.2.5	 	The following is agreed with respect to the French Companies:






	 	(a)	 	It is expressly acknowledged that the shares or partnership shares held
in the French Companies of which Purchaser will indirectly become the owner on
Closing, will immediately after Closing be reassigned to the company
Schering-Plough Holding France SAS or any other French affiliated company which the
Purchaser would wish to substitute itself with.
	 
	 	(b)	 	With this reassignment Purchaser means to comply with the provisions of
the section 223 B c. of the Code General des Impôts (French Tax Code) which
provides that “the provisions of the seventh subparagraph of section 223 B of the
Code General des Impôts do not apply if the shares sold to the company member of
the tax group have been acquired, directly or through the acquisition of a company
which controls directly or indirectly, the purchased company in the meaning of
section L 233-3 of the Commercial Code, immediately before, from people other than
those mentioned in the seventh subparagraph, with the intention to reassign them”.





9










 






	 	(c)	 	It is Purchaser’s intention that the above-mentioned reassignment
operation will be carried out in accordance with the provisions of the French tax
administration guidelines as specified in paragraph 101 of the Bulletin Officiel
des Impôts 4 H-3-
89 of May 2, 1989, in paragraph 101 of the documentation de base 4 H-6623 of July
12, 1997, and in paragraphs 54 to 56 of the Bulletin Officiel des Impôts 4 H-4-07
of March 21, 2007.






	3.	 	CONSIDERATION
	 
	3.1	 	Purchase Price
	 
	 	 	The consideration payable by Purchaser for the Shares (the “Purchase Price”) shall be an
amount equal to the aggregate of:






	 	3.1.1	 	the Bid Value; less
	 
	 	3.1.2	 	the Net Debt; less
	 
	 	3.1.3	 	the Pension Obligations.






	3.2	 	Payments at Closing
	 
	 	 	At Closing, Purchaser shall pay to Seller in accordance with Clause 6.2.1 an estimate of the
Purchase Price (the “Estimated Purchase Price”), equal to the aggregate of:






	 	3.2.1	 	the Bid Value; less
	 
	 	3.2.2	 	the Estimated Net Debt; less
	 
	 	3.2.3	 	the Pension Obligations.






	3.3	 	Adjustment to Purchase Price
	 
	 	 	If any payment is made by Seller to Purchaser or by Purchaser to Seller in respect of any
claim (i) for any breach of this Agreement (including, for the avoidance of doubt, a breach of
a Seller’s Warranty) or (ii) pursuant to an indemnity under this Agreement, the Purchase Price
shall be deemed to be adjusted by the amount of such payment.
	 
	4.	 	CONDITIONS PRECEDENT; ANTI-TRUST APPROVALS
	 
	4.1	 	Conditions
	 
	 	 	Closing is conditional upon satisfaction or waiver of the following Conditions Precedent:






	 	4.1.1	 	the Closing Anti-trust Approvals shall have been obtained or, alternatively, any
waiting periods under the Laws applicable to such approvals, shall have expired or been
terminated;
	 
	 	4.1.2	 	no Governmental Authority shall have enacted, issued, promulgated or enforced any Law,
non-appealable judgment, decree or injunction that is in effect and prohibits this
Agreement or the consummation of the Transaction;
	 
	 	4.1.3	 	there shall not be pending or threatened any action or proceeding by a Governmental
Authority seeking to prohibit consummation of the Transaction; and







10









 






	 	4.1.4	 	Seller shall not be in breach of any of the obligations required to be performed by it
under this Agreement that would be singly or in aggregate reasonably likely to have a
Material Adverse Effect.






	4.2	 	Responsibility for satisfaction; Anti-trust Approvals






	 	4.2.1	 	Save as otherwise provided in Clause 4.2.2, each of the Parties shall use its
reasonable best efforts to ensure satisfaction of and compliance with the Conditions
Precedent.
	 
	 	4.2.2	 	Notwithstanding Clause 4.2.1, Purchaser shall:






	 	(a)	 	as soon as practicable and advisable prepare and file with the relevant
Governmental Authorities the notices and applications necessary to (i) satisfy the
Condition Precedent set out in Clause 4.1.1 and (ii) obtain any other Anti-trust
Approval, provided that Seller shall have the right to review and provide comments
on such notices and applications, and provided further that Seller and Purchaser
shall cooperate with each other and file, as soon as practicable or advisable,
their respective notification and report form, if any, required for the Transaction
under the HSR Act;
	 
	 	(b)	 	supply as promptly as practicable any additional information and
documentary material that may be requested by any relevant Governmental Authority
in connection with (i) the Condition Precedent set out in Clause 4.1.1 or (ii) any
other Anti-trust Approval, provided that, with respect to any written submission,
information or documentary materials, Seller shall have the right to review and
provide comments on the same, and provided further that Seller shall, as promptly
as practicable, provide any necessary information or documentary material that may
reasonably be requested by Purchaser in order to fulfill its obligations under this
Clause, or by any relevant Governmental Authority in connection with the Condition
Precedent set out in Clause 4.1.1 or any other Anti-trust Approval, to the extent
that it is in Seller’s possession and control; and
	 
	 	(c)	 	take promptly any and all steps necessary to avoid or eliminate each
and every impediment to, and procure as soon as practicable, the fulfillment of the
Condition Precedent set out in Clause 4.1.1 and the obtaining of all other
Anti-trust Approvals by no later than 15 December 2007 (the “Outside Date”),
including by (i) taking or giving to the competent Governmental Authorities a
binding undertaking to take any action that may be necessary or appropriate in
order to obtain clearance of the Transaction (including by agreeing to sell, lease,
license or otherwise dispose of, or to hold separate pending such disposition, and
promptly to effect the sale, lease, license, disposal and holding separate of,
assets, rights, product lines, licenses, categories of any assets or businesses or
other operations, or interests therein, of Purchaser Parent and Guarantor or its
subsidiaries, including the shares, properties and all other assets to be acquired
(directly or indirectly) by Purchaser hereunder, and the entry into agreements
with, and submission to orders of, the relevant Governmental Authority giving
effect thereto, that may be required by any relevant Governmental Authority) or






11










 






	 	(ii)	 	duly and promptly complying with any condition that any relevant Governmental
Authority may impose to approve the consummation of the Transaction and that cannot
be resisted in accordance with the terms of this
Agreement. For the avoidance of doubt, Purchaser shall take any and all actions
necessary in order to ensure that (x) no requirement for a waiver, consent or
approval of any Governmental Authority, (y) no decree, decision, judgment,
injunction, temporary restraining order or any other order in any suit or
proceeding, and (z) no other matter relating to any antitrust or competition Law,
would preclude consummation of the Transaction by the Outside Date. For the
avoidance of doubt, Seller shall take all steps reasonably practicable or
necessary in order to cooperate with Purchaser in obtaining all necessary
Anti-trust Approvals.






	 	4.2.3	 	Purchaser shall use its reasonable best efforts to obtain all Anti-trust Approvals at
the earliest possible date prior to the Outside Date and shall seek all relevant Anti-trust
Approvals for each of the human healthcare and veterinary healthcare activities of Seller’s
Group, individually and in the aggregate.
	 
	 	4.2.4	 	Notwithstanding the foregoing, none of Seller nor any other member of Seller’s Group
shall have any obligation to hold separate or divest any assets, rights, product lines,
licenses, categories of assets or businesses or other operations, or interests therein, of
Seller or any other member of Seller’s Group.
	 
	 	4.2.5	 	Purchaser shall bear all filing fees and other costs incurred in relation to any
anti-trust or similar filing required to be made in any jurisdiction in connection with
Purchaser’s acquisition of the Shares. Purchaser shall also bear all costs, penalties and
fines resulting from not filing in any jurisdiction where it is determined that filing
should have taken place.
	 
	 	4.2.6	 	Without prejudice to Clause 4.2.2, Seller and Purchaser shall (i) promptly co-operate
with and provide all necessary information and assistance reasonably required by any
Governmental Authority in connection with the Condition Precedent set out in Clause 4.1.1
upon being requested to do so by the other Party, (ii) promptly inform, and provide copies
to, the other Party of any communication received from, or given by it to, any Governmental
Authority with respect to the said Condition Precedent, (iii) to the extent practicable,
provide the other party and its counsel with advance notice of and the opportunity to
participate in any discussion, telephone call or meeting with any Governmental Authority in
respect of any filing, investigation or other inquiry in connection with the Transaction
and to participate in the preparation for such discussion, telephone call or meeting, (iv)
not enter into, or consummate, any acquisition or license agreement which would present a
material risk of making it materially more difficult to obtain any approval or
authorization required in connection with the Condition Precedent set out in Clause 4.1.1,
and (v) to the extent permitted by Law, consult with each other prior to filing or
submitting documents or entering into discussions with any Governmental Authority and give
each other advance notice to engage in meaningful consultation.






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	 	4.2.7	 	Without prejudice to Clauses 4.2.2(c) and 4.2.6, in the event that any administrative
or judicial action or proceeding is instituted (or threatened, or becomes reasonably
foreseeable, to be instituted) by a Governmental Authority or any other person
challenging (any part of) the Transaction, each Party shall co-operate in all respects
with the other Party and use its reasonable best efforts to defend, contest and resist
any such actual, anticipated or threatened action or proceeding and, without avoidable
delay, to have vacated, lifted, reversed or overturned any order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or restricts
the consummation of the Transaction.






	4.3	 	(Non-)Satisfaction/Waiver






	 	4.3.1	 	Within 2 (two) Business Days of becoming aware of the same, (i) Purchaser shall give
notice to Seller, or vice versa, of the satisfaction of the Condition Precedent set out in
Clause 4.1.1, and (ii) if applicable, Purchaser shall give notice to Seller, or vice versa,
of non-satisfaction of any of the other Conditions Precedent.
	 
	 	4.3.2	 	The Conditions Precedent may only be waived by written agreement between Seller and
Purchaser.
	 
	 	4.3.3	 	If the Conditions Precedent are not satisfied or waived on or before the Outside Date,
Purchaser or Seller may, in its sole discretion, terminate this Agreement by notice to the
other, and no party shall have any claim pursuant to this Agreement save for any claim of a
Party arising from breach of any obligation contained in Clauses 2.2.4 or 4.2, provided
that no such termination notice may be given by a Party which is in default of its material
obligations under this Agreement, including, for the avoidance of doubt, Purchaser’s or
Seller’s obligations under Clause 4.2.






	5.	 	PRE-CLOSING COVENANTS
	 
	5.1	 	Conduct of business
	 
	 	 	Seller undertakes to procure that between Signing and Closing:






	 	5.1.1	 	the business of the Group is carried on with reasonable care as a going concern in the
ordinary course as carried on prior to Signing consistent in all material respects with
applicable Laws, and the present business organization, properties and assets and
relationships with third parties is maintained in a reasonable manner and preserved
consistent with the Group’s current practice, except as consented to in writing by
Purchaser, such consent not to be unreasonably withheld or delayed, or as would be contrary
to any Law;
	 
	 	5.1.2	 	without prejudice to the generality, and in furtherance, of Clause 5.1.1, to the
extent relating to any Group Company, Seller and the Group Companies do not, without the
prior written consent of Purchaser, such consent not to be unreasonably withheld or
delayed, or except as would be contrary to any Law:






	 	(a)	 	reclassify, split (`splitsing van aandelen, samenvoeging van
verschillende klassen van aandelen ́), repay, recapitalize (`omzetting reserves in
aandelenkapitaal ́),






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	 	 	 	redeem, adjust the par value of, pay out stock dividend or
repurchase, or allow to be reclassified, split, repaid, redeemed or repurchased any shares or other ownership interests of the Company or any other Group Company;
	 
	 	(b)	 	create, allot, issue, pledge, dispose of or encumber, or allow to be
created, allotted, issued, pledged, disposed or encumbered any shares, ownership
interests or voting securities, or any warrants, convertible securities, other
rights of any kind to acquire or receive any shares, any other ownership interests
or any voting securities of the Company or any other Group Company, or issue any
instruments that give rise to the right of the holder to obtain shares, ownership
interests or voting securities in the Company or any other Group Company;
	 
	 	(c)	 	declare, set aside, make or pay any dividend or make any equity
distribution to shareholders of the Company, except pursuant to Clause 2.2;
	 
	 	(d)	 	incur any additional indebtedness, or issue any debt securities or
assume, guarantee or endorse any material obligations of any other person, in each
case having maturities of more than one year and which may not be terminated on
less than 30 (thirty) days’ notice, without any material termination, pre-payment
or similar payments;
	 
	 	(e)	 	acquire (by merger, consolidation or acquisition of stock or assets)
any corporation, partnership or other business organization or division thereof or
any equity interest therein;
	 
	 	(f)	 	(A) directly or indirectly, sell, assign, lease, transfer, license or
otherwise dispose of, or extend or exercise any option to sell, assign, lease,
transfer, license or otherwise dispose of, any Intellectual Property, except
pursuant to binding, written contracts existing as of Signing or as required by
Law; or (B) sell, assign, lease, transfer, license, or otherwise dispose of, or
extend or exercise any option to sell, assign, lease, transfer, license, or
otherwise dispose of, any asset, other than Intellectual Property, other than in
the ordinary course of business consistent with past practice;
	 
	 	(g)	 	mortgage or pledge any assets, other than by operation of Law;
	 
	 	(h)	 	terminate or materially extend or materially modify, or waive any
rights under, any contract that is material to the Operations, other than in the
ordinary course of business and consistent with reasonable oversight of the
Operations;
	 
	 	(i)	 	enter into any contract, arrangement or commitment or amend any
contract, arrangement or commitment, other than in the ordinary course of business
and consistent with reasonable oversight of the Operations and, for this purpose,
letters of credit with a value in excess of EUR 10 million (ten million euro) shall
not be considered to be in the ordinary course of business and consistent with
reasonable oversight of the Operations;
	 
	 	(j)	 	to the extent relating to any Employees, materially increase, amend or
grant any employee benefits (including, but not limited to, pension, retirement,
profit-




14









 






	 	 	 	sharing or other incentive plans, but excluding any commercially reasonable
retention bonuses and similar compensation) in any material manner or, without
prior consultation with Purchaser and due consideration of Purchaser’s view,
enter into or amend any collective bargaining agreement concerning any employee of
the Group Companies or, without prior consultation with Purchaser and due
consideration of Purchaser’s view, change the actuarial assumptions under any
pension scheme;
	 
	 	(k)	 	make any payments or settle any claims under any indemnity given by the
Company to Seller’s Group under the Master Separation Agreement;
	 
	 	(l)	 	settle any legal proceeding or other dispute in respect of class
actions, intellectual property matters or, to the extent such settlement is
reasonably likely to adversely affect the Company in a material way, any material
investigations or other legal proceedings or actions by any Governmental Authority,
or settle any other legal proceedings or other disputes other than in the ordinary
course of business consistent with past practice;
	 
	 	(m)	 	incur any capital expenditure other than any capital expenditure
incurred in connection with any repairs, replacements, maintenance, or binding
written commitments of, or relating to, assets of the Company existing as of
Signing, or purchases of any individual items for less than (A) EUR 300,000 (three
hundred thousand euro) in the case of purchases relating to the human health
activities of the Group and (B) EUR 200,000 (two hundred thousand euro) in the case
of purchases relating to the animal health activities of the Group, as the case may
be, or as required by Law;
	 
	 	(n)	 	change the accountancy and tax procedures, principles or practices of
any Group Company except as and when required by applicable accounting guidelines
or in the ordinary course of business;
	 
	 	(o)	 	amend or change the articles of association or similar organizational
documents of any Group Company or adopt or pass resolutions for such purposes; and
	 
	 	(p)	 	to the extent relating to any period of Taxation in respect of a Group
Company, commencing on or after 1 January 2007, and unless in the ordinary course
of business, file or amend any Tax Return or claim for refund of Taxes with any Tax
Authority, change any method of reporting income or deductions for Tax purposes,
waive or consent to extend any period of limitations for the payment or assessment
of any Tax, settle or compromise any Tax liability or refund.






	5.2	 	Access to Operations






	 	5.2.1	 	Subject to Clauses 5.2.2 and 5.2.3, Seller undertakes to procure that, until the
Closing Date or, if applicable and earlier, termination of this Agreement, the Group
Companies shall allow Purchaser and its Representatives upon reasonable notice to Seller,
and subject to compliance with the relevant site access procedures, access during normal
working hours to the premises, books and records of or relating to the Operations.







15









 












	5.2.2	 	The obligation of Seller under Clause 5.2.1 shall be subject to the right of the
relevant member(s) of Seller’s Group to refuse access to the Operations on the grounds that
access:






	 	(a)	 	would be contrary to any Law;
	 
	 	(b)	 	would cause undue disruption to the relevant Operations or their
management; or
	 
	 	(c)	 	would in the reasonable opinion of the relevant management of the
relevant Operations involve issues of proprietary nature, commercial sensitivity or
confidentiality such that access could materially damage such proprietary nature,
value, competitiveness or confidentiality of the relevant Group Company or lead to
a material breach of any obligations of the relevant Group Company, it being agreed
that any information relating to sales force commissions of the Group shall
constitute such issues.






	 	5.2.3	 	Without detracting from the grounds for refusal set out in Clause 5.2.2, Purchaser
shall only be entitled to have such access to the extent reasonably necessary for Purchaser
to ensure the transfer of the Group in an efficient and timely manner at Closing and to
allow Purchaser to help prepare for the transition of the Group into Purchaser’s Group.






	5.3	 	Intra-group agreements and Master TSA






	 	5.3.1	 	Seller covenants that, except as expressly set out in this Agreement or otherwise
agreed by the Parties, all existing agreements and arrangements (except for the Retained
Intra-Group Agreements) between one or more members of Seller’s Group (excluding the Group
Companies) on the one hand and one or more Group Companies on the other hand shall be
terminated prior to or at Closing to the extent related to the Operations. Without
detracting from any longer duration periods as may be specified in the Master TSA in
respect of any specific service, Seller agrees not to, and Purchaser shall procure that the
relevant Group Company does not, terminate any Retained Intra-Group Agreement prematurely
for a period of 6 (six) months after the Closing Date. Seller shall reasonably consider any
reasonable requests of Purchaser, and vice versa, for any extension of the aforesaid 6
(six) month period.
	 
	 	5.3.2	 	Between Signing and Closing, Seller shall, and shall cause the Company to, and
Purchaser shall, in good faith negotiate and shall execute an agreement for the rendering,
for a temporary period after Closing, of certain services by one or members of Seller’s
Group to one or more of the Group Companies, and vice versa, (the “Master TSA”) provided
that the failure for whatever reason to sign the Master TSA prior to or at Closing, shall
not in any way delay or prevent Closing from taking place.






	5.4	 	Estimated Net Debt Statement






	 	5.4.1	 	No later than 3 (three) Business Days prior to the date set in Clause 6.1 for Closing,
Seller shall deliver to Purchaser the Estimated Net Debt Statement.
	 
	 	5.4.2	 	The Estimated Net Debt Statement shall be drawn up in good faith in the form set out
in Schedule 6 (Part 1).





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	 	5.4.3	 	Any amounts included in the determination of the Estimated Net Debt Statement in
currencies other than Euro shall be translated into Euro at such exchange rates as are used
by Seller for its internal accounting purposes and communicated to Purchaser, at the date
of drawing up the Estimated Net Debt Statement.
	 
	 	5.4.4	 	The Estimated Net Debt Statement shall for purposes of the calculation and allocation
of the Estimated Purchase Price, not be subject to review by Purchaser and shall be final
and binding on the Parties.






	5.5	 	Cooperation with Financing






	 	5.5.1	 	At the request and cost of Purchaser, prior to the Closing, Seller shall reasonably
cooperate, shall use all reasonable efforts to cause any Group Company to reasonably
cooperate, and shall request that their respective Representatives, including legal and
accounting, reasonably cooperate, in connection with the financing to be provided under the
Commitment Letter and any equity, debt or other securities issuance to refinance or,
subject to Clause 5.6, to replace all or any part of such financing (together, the
“Financing”), in each case for the purchase or transfer of the Shares and the other
transactions contemplated by this Agreement (provided that such requested cooperation does
not unreasonably interfere with the ongoing management or operations of the Group, or
require travel or demands on the time of management or employees prior to Closing that in
the view of Seller is unreasonably disruptive to the management or operations of the
Group), including (i) participation in a reasonable number of meetings, presentations,
update due diligence sessions and sessions with rating agencies, (ii) assisting with the
preparation of materials for rating agency presentations, offering documents, private
placement memoranda, bank information memoranda, prospectuses and similar documents
required in connection with the Financing, including a reconciliation of the Accounts to US
GAAP; (iii) executing and delivering any pledge and security documents, other definitive
financing documents, or other certificates, legal opinions or documents as may be
reasonably requested by Purchaser or Purchaser Parent and Guarantor, and (iv) the making of
any notifications required in relation to the Financing under the Netherlands Works Council
Act.
	 
	 	5.5.2	 	The obligations of Seller under this Clause 5.5 shall be limited as follows: (i)
Seller and its Representatives shall not be required to incur any Liabilities in respect of
the Financing, none of the Group Companies nor their respective Representatives shall be
required to incur any Liabilities in respect of the Financing prior to Closing, and
Purchaser shall indemnify and hold harmless each of Seller, the Group Companies and their
respective Representatives for and against any and all liabilities, losses, damages,
claims, costs, expenses, interest, awards, judgments and penalties arising from or relating
to their involvement or cooperation in connection with the Financing and any information
utilized in connection therewith, including under any securities law, (ii) none of Seller,
any Group Company or any Representative shall have any obligation to meet or participate in
any meetings with any potential lender, investor or member of a banking syndicate (other
than Goldman Sachs International) prior to Closing, in a manner that would unreasonably
interfere with the operation of Seller’s






17










 






	 	 	 	business, (iii) nothing in this Clause 5.5 shall be deemed to permit or require the disclosure of information that would otherwise be
prevented under Clause 14 (Confidentiality), (iv) arrangement of the Financing is the sole
responsibility of Purchaser, and (v) obtaining the Financing, and cooperation by Seller,
the Group
Companies and their Representatives in obtaining the Financing, is not a condition to
the obligations of Purchaser hereunder.






	5.6	 	Financing obligations of Purchaser and Purchaser Parent and Guarantor






	 	5.6.1	 	Purchaser and Purchaser Parent and Guarantor shall procure that the Bridge Facility
and any other credit facility (other than the Credit Agreement) or other financing
documents entered into pursuant to the Commitment Letter (together, “Financing Documents”)
reflect in all material respects the terms set out in the Commitment Letter (including all
terms relating to the amount of funds committed, the availability period and certain
funds). Purchaser and Purchaser Parent and Guarantor shall perform their respective
obligations under the Commitment Letter, Financing Documents and the Credit Agreement and
shall use their respective reasonable best efforts to maintain the Commitment Letter, any
Financing Documents and the Credit Agreement in full force and effect, shall not cancel any
commitments thereunder, and shall not permit any amendment, modification, termination,
replacement, restatement, cancellation or other change to be made to the Commitment Letter,
any Financing Documents or the Credit Agreement, or grant any waiver, that would in any
way (i) reduce the aggregate amount of the financing committed and available to be drawn
thereunder, (ii) reduce the period of time for which funds are available to be drawn, (iii)
make the conditions to disbursement more onerous to Purchaser or Purchaser Parent and
Guarantor than those set forth in the Commitment Letter and the Credit Agreement,
respectively, or (iv) adversely affect Purchaser’s ability to draw funds thereunder on the
Closing Date sufficient to enable Purchaser to pay the amount payable by Purchaser under
Clause 3 and all fees and expenses required to be paid in connection with such financing,
refinancing existing indebtedness, and achieve Closing hereunder. The limitations set out
in the preceding sentence shall not apply to the Commitment Letter or Credit Agreement once
the Financing Documents have been entered into.
	 
	 	5.6.2	 	Purchaser undertakes to Seller that Purchaser shall take all action necessary to draw
on the Closing Date under either the Bridge Facility or the Credit Agreement or both
amounts sufficient for Purchaser to pay the amount payable under Clause 3 to the extent
Purchaser does not use cash from Purchaser Parent and Guarantor. Purchaser shall not be
entitled to delay Closing in order to draw amounts under any debt facility or to arrange
any equity, debt or other securities issuance to refinance or replace all or any part of
the Bridge Facility.






	5.7	 	Loan and deposit agreements
	 
	 	 	Seller covenants that, prior to Closing, the loan under the Shareholder Loan Agreement,
together with accrued interest thereon, netted against (i) the loan under that certain loan
agreement entered into between the Company (as lender) and Seller (as borrower) during or
about September 2007, together with accrued interest thereon, and (ii) certain cash deposits






18









 






	 	 	made by the Company with Seller since 28 February 2007, together with accrued interest
thereon, shall have been converted, by way of an informal capital contribution, to share
premium on the Shares so that all of the parties’ obligations under the said loan agreements
and deposit arrangements shall have been terminated.






	6.	 	CLOSING
	 
	6.1	 	Date and place
	 
	 	 	Subject to the satisfaction (or waiver under Clause 4.3.2) of each of the Conditions
Precedent:






	 	6.1.1	 	Closing shall take place in Amsterdam, the Netherlands, at the offices of Seller’s
Lawyers, commencing at 11h00 CET, but not completed before 16h30 CET, on the 5th (fifth)
Business Day after satisfaction or waiver of the Condition Precedent set out in Clause
4.1.1 (subject to the satisfaction (or waiver occurs under Clause 4.3.2) of the other
Conditions Precedent); or
	 
	 	6.1.2	 	at such other date, time or location as may be agreed in writing by the Parties.






	6.2	 	Payment of Estimated Purchase Price; Closing actions






	 	6.2.1	 	Purchaser shall pay the Estimated Purchase Price in three parts to its euro resident
accounts with ABN AMRO, ING and Rabobank no later than on the day immediately preceding the
date scheduled for Closing pursuant to Clause 6.1, and shall procure that, immediately
after performance of the actions set out in Paragraph 2 of Schedule 4, the Estimated
Purchase Price is paid, with value on the Closing Date, from the aforesaid accounts to
three designated bank accounts of Seller with the same banks.
	 
	 	6.2.2	 	At Closing, the Parties shall procure that the actions set out in Schedule 4 are taken
in the sequence set out therein.






	6.3	 	Repayment of Estimated Intra-Group Indebtedness






	 	6.3.1	 	Immediately following Closing:






	 	(a)	 	Purchaser shall procure that each relevant Group Company repays to the
relevant member of Seller’s Group (excluding any Group Company) the Estimated
Intra-Group Payables of said Group Company; and
	 
	 	(b)	 	Seller shall procure that each relevant member of Seller’s Group
(excluding any Group Company) repays to each relevant Group Company the Estimated
Intra-Group Receivables of said Group Company;
	 
	 	 	 	in each case as set out in the Estimated Net Debt Statement.






	 	6.3.2	 	The repayments made pursuant to Clause 6.3.1 shall, to the extent legally permissible,
be aggregated and discharged by way of set-off.






	6.4	 	Breach of Closing obligations
	 
	 	 	If any Party breaches any material obligation in Clauses 6.2 and 6.3 and Schedule 4 in
relation to Closing, Purchaser, in the case of breach by Seller, or






19










 






	 	 	Seller, in the case of breach by Purchaser, shall be entitled (in addition to and without prejudice to all other
rights or remedies available, including the right to claim damages) by notice served on or
after the date set in Clause 6.1.1 for Closing:






	 	6.4.1	 	to terminate this Agreement (other than Clauses 1, 13 and 15.2 through 15.16), in
which event the Parties shall forthwith take all such action as is necessary to reverse any
action already taken under Clauses 6.2 and 6.3 and Schedule 4;
	 
	 	6.4.2	 	to effect Closing as far as practicable having regard to the defaults which have
occurred; or
	 
	 	6.4.3	 	to set a new date for Closing (not being more than 20 (twenty) Business Days after the
previously set date for Closing) in which case the provisions of Clauses 6.2, 6.3 and 6.4
and Schedule 4 shall apply to Closing as so deferred.






	7.	 	POST-CLOSING ADJUSTMENT
	 
	7.1	 	Net Debt Statement






	 	7.1.1	 	Within 5 (five) Business Days after the Closing Date, Seller shall prepare and deliver
to Purchaser a draft of the Net Debt Statement in the form set out in Schedule 6 (Part 1)
and prepared in accordance with Schedule 6 (Part 2).
	 
	 	7.1.2	 	In the event that Purchaser disagrees with the draft Net Debt Statement, Purchaser
shall within 10 (ten) Business Days after receipt thereof, deliver notice of such
disagreement to Seller, such notice (the “Notice of Disagreement”) to specify (i) each line
item in the draft statement with which Purchaser disagrees, (ii) the amount of each
adjustment proposed by Purchaser and (iii) in reasonable detail, the reason for Purchaser’s
disagreement in respect of each such line item.
	 
	 	7.1.3	 	If Purchaser does not deliver a Notice of Disagreement in terms of Clause 7.1.2, the
draft Net Debt Statement shall be final and binding on Seller and Purchaser (and each
relevant other member of Purchaser’s Group) for all purposes.
	 
	 	7.1.4	 	If Purchaser delivers a Notice of Disagreement in terms of Clause 7.1.2, then:






	 	(a)	 	at the election of Seller, each line item in the draft Net Debt
Statement in respect of which Purchaser does not deliver a Notice of Disagreement
in accordance with Clause 7.1.2, shall be final and binding on Seller and Purchaser
(and each other member of Purchaser’s Group) for all purposes; and
	 
	 	(b)	 	Seller and Purchaser shall attempt in good faith to reach agreement in
respect of those line items in the draft Net Debt Statement in respect of which
Purchaser has thus given Notice of Disagreement, provided that if Seller and
Purchaser do not reach such agreement within 10 (ten) Business Days of delivery of
the Notice of Disagreement, Seller or Purchaser may by notice to the other require
that those line items in the draft Net Debt Statement that have been properly
specified in Purchaser’s Notice of Disagreement in accordance with Clause 7.1.2






20









 






	 	 	 	and subsequently have not been agreed upon between Seller and Purchaser within the
aforesaid 10 (ten) Business Days, be referred to the Reporting Accountants in the
terms of Schedule 6 (Part 3).






	 	7.1.5	 	In order to enable the preparation and determination of the Net Debt Statement,
Purchaser shall procure the keeping up-to-date and, subject to reasonable notice, making
available to Seller’s Representatives during normal office hours of all books and records
relating to the Group, and co-operate with them with regard to the preparation and
determination of the Net Debt Statement. Purchaser shall procure that
the Group Companies shall, in so far as it is reasonable to do so, make available the
services of their employees to assist Seller in the performance of Seller’s duties and
exercise of Seller’s rights under this Clause 7.1.






	7.2	 	Adjustments to Purchase Price and repayment of Intra-Group Indebtedness






	 	7.2.1	 	Net Debt






	 	(a)	 	If the Net Debt reflected in the Net Debt Statement is less than the
Estimated Net Debt, Purchaser shall pay to Seller an amount equal to such deficit.
	 
	 	(b)	 	If the Net Debt reflected in the Net Debt Statement exceeds the
Estimated Net Debt, Seller shall repay Purchaser an amount equal to such excess.






	 	7.2.2	 	Intra-Group Indebtedness
	 
	 	 	 	In respect of each Group Company:






	 	(a)	 	to the extent that the amount of any Intra-Group Payable reflected in
the Net Debt Statement is less than the amount of the Estimated Intra-Group Payable
repaid pursuant to Clause 6.3.1(a), Seller shall procure that the relevant member
of Seller’s Group pays to the Group Company an amount equal to such deficit;
	 
	 	(b)	 	to the extent that the amount of any Intra-Group Payable reflected in
the Net Debt Statement exceeds the amount of the Estimated Intra-Group Payable
repaid pursuant to Clause 6.3.1(a), Purchaser shall procure that the Group Company
pays to the relevant member of Seller’s Group an amount equal to such excess;
	 
	 	(c)	 	to the extent that the amount of any Intra-Group Receivable reflected
in the Net Debt Statement is less than the amount of the Estimated Intra-Group
Receivable repaid pursuant to Clause 6.3.1(b), Purchaser shall procure that the
Group Company pays to the relevant member of Seller’s Group an amount equal to such
deficit; and
	 
	 	(d)	 	to the extent that the amount of any Intra-Group Receivable reflected
in the Net Debt Statement exceeds the amount of the Estimated Intra-Group
Receivable repaid pursuant to Clause 6.3.1(b), Seller shall procure that the
relevant member of Seller’s Group pays to the Group Company an amount equal to such
excess.






	 	7.2.3	 	Interest
	 
	 	 	 	Any payment to be made in accordance with this Clause 7.2 shall include interest thereon
calculated, at the Interest Rate, from the day after the Effective Time to the day of
payment, both days inclusive.







21









 






	 	7.2.4	 	Payment






	 	(a)	 	The due date for any payment to be made under this Clause 7.2, shall be
the 5th (fifth) Business Day after the Net Debt Statement has been finally
determined in accordance with Clause 7.1.4.
	 
	 	(b)	 	All payments (including interest payments) made under this Clause 7.2
(excluding Clause 7.2.2) shall be made on account of the Purchase Price.
	 
	 	(c)	 	To the extent legally permissible, the payments to be made pursuant to
this Clause 7.2, shall be aggregated and discharged by way of set-off.






	8.	 	WARRANTIES
	 
	8.1	 	Seller’s Warranties






	 	8.1.1	 	Subject to the remaining provisions of this Clause 8 and to Clauses 9 and 10, Seller
represents and warrants to Purchaser and Purchaser Parent and Guarantor and, as an
irrevocable third party stipulation (`derdenbeding ́) after Closing, to the Company and
members of the Group that the statements set out in Schedule 7 (Part 1) were true and
accurate at the Reference Time, except for the Seller’s Warranty set out in Paragraph
2(a)(ii) (the Accounts) which Seller represents and warrants as being true and accurate at
the Accounts Date.
	 
	 	8.1.2	 	Each Seller’s Warranty applies only to the subject expressly referred to therein.
Without detracting from the generality of the foregoing, but with the exception of the
generality of Paragraphs 2(a), 4(b), and 15(a) of Schedule 7 (Part 1), the only Seller’s
Warranties given:






	 	(a)	 	in respect of real property, are those contained in Paragraph 5 of
Schedule 7 (Part 1) and all other Seller’s Warranties shall be deemed not to be
given in respect of real property;
	 
	 	(b)	 	in respect of Intellectual Property, are those contained in Paragraph 6
of Schedule 7 (Part 1) and all other Seller’s Warranties shall be deemed not to be
given in respect of Intellectual Property;
	 
	 	(c)	 	in respect of employment or pension matters, are those contained in
Paragraph 8 of Schedule 7 (Part 1) and all other Seller’s Warranties shall be
deemed not to be given in respect of such matters;
	 
	 	(d)	 	in respect of HSE matters, are those contained in Paragraph 8(a)(iii)
and Paragraph 10 of Schedule 7 (Part 1) and all other Seller’s Warranties shall be
deemed not to be given in respect of HSE matters;
	 
	 	(e)	 	in respect of anti-trust, fair trading, dumping, state and consumer
protection or similar matters, are those contained in Paragraph 11 of Schedule 7
(Part 1) and all other Seller’s Warranties shall be deemed not to be given in
respect of such matters; and






22











 






	 	(f)	 	in respect of Tax matters, are those contained in Paragraph 14 of
Schedule 7 (Part 1) and all other Seller’s Warranties shall be deemed not to be
given in respect of such matters.






	 	8.1.3	 	Seller shall provide to Purchaser and Purchaser Parent and Guarantor a certificate at
Closing representing and warranting that Seller’s Warranties are true and accurate at
Closing as if they had been repeated at Closing, except for those that refer to a specific
date, provided that:






	 	(a)	 	the reference to the 12-month period in Paragraph 7(c) of Schedule 7
(Part 1) shall be deemed to be the 12-month period commencing at the Reference
Time; and
	 
	 	(b)	 	the foregoing repetition of warranties provided for above shall not
apply to Paragraphs 2(a), 8(b)(i), and 15(a)(iv) of Schedule 7 (Part 1).






	 	8.1.4	 	Each of Purchaser and Purchaser Parent and Guarantor acknowledges and agrees that
Seller makes no representation or warranty as to the accuracy of any forecasts, estimates,
projections, statements of intent or statements of opinion howsoever provided to Purchaser
or any of its Representatives. Purchaser acknowledges that no representations or
warranties, express or implied, have been given or are given by Seller or any of its
Representatives other than Seller’s Warranties.
	 
	 	8.1.5	 	Any Seller’s Warranty qualified by the expression “so far as Seller is aware” or any
similar expression shall be deemed to refer to the knowledge of those members of Seller’s
corporate staff whose names are set out in Schedule 7 (Part 3), who shall be deemed to have
knowledge of such matters as they would have discovered had they made reasonable enquiries
within the Group.
	 
	 	8.1.6	 	The applicability of article 7:17 of the Netherlands Civil Code is hereby excluded.






	8.2	 	Disclosure
	 
	 	 	Seller’s Warranties are limited by, and Seller shall not be in breach of or liable for any
Seller’s Warranties in respect of, the matters disclosed in:






	 	8.2.1	 	the Prospectus;
	 
	 	8.2.2	 	the Accounts;
	 
	 	8.2.3	 	the Disclosure Letter;
	 
	 	8.2.4	 	this Agreement;
	 
	 	8.2.5	 	those documents made available in the Data Room in respect of which Purchaser Parent
and Guarantor and its Representatives were granted printing privileges on or prior to 9
March 2007 which are listed in Schedule 10;
	 
	 	8.2.6	 	any publicly available documents filed with, or furnished to, the U.S. Securities and
Exchange Commission by Seller prior to Closing;
	 
	 	8.2.7	 	the written management presentation held on 7 March 2007 as made available to
Purchaser Parent and Guarantor at or prior to Signing; and






23











 






	 	8.2.8	 	in correspondence or other written material, sent or provided (including by electronic
transmission) by Seller or its Representatives, as from 28 February 2007 to the Reference
Time, to Purchaser Parent and Guarantor or its Representatives, together with the contents
of all enclosures thereto, which are attached on Schedule 11.






	8.3	 	Purchaser’s and Purchaser Parent and Guarantor’s Warranties






	 	8.3.1	 	Purchaser represents and warrants to Seller that, as at the date of the execution of
this Agreement:






	 	(a)	 	the statements set out in Schedule 7 (Part 4) are true and accurate in
all material respects; and
	 
	 	(b)	 	neither Purchaser nor any of its Representatives, is aware of any
breach of Seller’s Warranties or of any fact or circumstance which could give rise
to a breach of Seller’s Warranties.






	 	8.3.2	 	Purchaser Parent and Guarantor represents and warrants to Seller that, at the
Reference Time:






	 	(a)	 	the statements set out in Schedule 7 (Part 4) were true and accurate in
all material respects as if made by Purchaser Parent and Guarantor in respect of
itself; and
	 
	 	(b)	 	neither Purchaser Parent and Guarantor, nor any other member of
Purchaser’s Group, nor any of their respective Representatives, is aware of any
breach of Seller’s Warranties or of any fact or circumstance which could give rise
to a breach of Seller’s Warranties.






	 	8.3.3	 	Purchaser shall provide to Seller a certificate at Closing representing and
warranting that the statements set out in Schedule 7 (Part 4) are true and accurate at
Closing as if they had been repeated at Closing.
	 
	 	8.3.4	 	Purchaser Parent and Guarantor shall provide to Seller a certificate at Closing
representing and warranting that the statements set out in Schedule 7 (Part 4) are true
and accurate at Closing as if they had been repeated by Purchaser Parent and Guarantor in
respect of itself at Closing.






	8.4	 	Liability for breach






	 	8.4.1	 	Subject to Clauses 4.3.3 and 6.4.1, in the event of any breach by Seller under this
Agreement, Purchaser shall not have the right to terminate or rescind this Agreement and as
its sole and exclusive remedy and subject to any other applicable limitations of liability,
shall have the right, after the Closing Date, to claim the Losses suffered or incurred by
Purchaser as a result of such breach, it being agreed that a Loss suffered by the relevant
Group Company in respect of such breach shall, subject to any other applicable limitations
of liability, be deemed to be a Loss suffered by Purchaser.
	 
	 	8.4.2	 	In the event of any breach of Purchaser’s Warranties, Seller shall be entitled to
claim the Losses suffered or incurred by Seller and any other member of Seller’s Group as a
result of such breach.






24










 






	 	8.4.3	 	For purposes of this Agreement and subject to Clause 8.2, it is agreed that a breach
of a Seller’s Warranty or Purchaser’s Warranty, as the case may be, shall occur where same
is untrue or inaccurate on any date as at which the same is given.






	8.5	 	Master Separation Agreement






	 	8.5.1	 	For purposes of the Master Separation Agreement, Seller agrees, as an irrevocable
third party stipulation (`derdenbeding ́) in favour of the Company, that the Company shall
have no obligation under the Master Separation Agreement to compensate or indemnify Seller
(or any other member of Seller’s Group (excluding the Group)), for any
Liabilities or Losses which, but for this provision, would give rise to such obligation
as a result of contamination with Hazardous Substances caused by an act or omission of
(a) any member of Seller’s Group (excluding the Group) or (b) any third party (excluding
the Group Companies) for whose acts or omissions a member of Seller’s Group (excluding
the Group) is responsible.
	 
	 	8.5.2	 	For purposes of the Master Separation Agreement, Seller agrees, as an irrevocable
third party stipulation (`derdenbeding ́) in favour of Purchaser and Purchaser Parent and
Guarantor, that they shall be the beneficiary of the obligations of Seller to the Company
under the Master Separation Agreement, provided that the foregoing shall not apply to the
extent that it would result in any increase of Seller’s obligations under the Master
Separation Agreement.
	 
	 	8.5.3	 	For purposes of the Master Separation Agreement, Purchaser shall, as of and after
Closing, procure that no member of Purchaser’s Group exercises any right under the Master
Separation Agreement to be compensated or indemnified for any Liabilities or Losses which,
but for this provision, would give rise to such right as a result of contamination with
Hazardous Substances caused by an act or omission of (a) any member of the Group or (b) any
third party (excluding Seller’s Group) for whose acts or omissions a member of the Group is
responsible.
	 
	 	8.5.4	 	Seller and Purchaser agree that, for purposes of the Master Separation Agreement, any
liability of Seller, or any liability that Seller would have but for Clauses 9.2 (minimum
claims), 9.3 (aggregate minimum claims) and 9.4 (maximum liability), under this Agreement
shall not qualify as an Assumed Liability (as defined in the Master Separation Agreement)
or a Liability referred to in Clause 3.1.2 of the Master Separation Agreement or any other
matter for which the Company is required to indemnify or compensate Seller under the Master
Separation Agreement.
	 
	 	8.5.5	 	As between Seller and Purchaser and Purchaser Parent and Guarantor, in the event of a
conflict between the provisions of the Master Separation Agreement and this Agreement, the
provisions of this Agreement shall prevail.






	9.	 	LIMITATION OF LIABILITY
	 
	9.1	 	Time limitation
	 
	 	 	Seller shall not be liable in respect of any claim under this Agreement unless a notice of the
claim is given to Seller specifying the matters set out in Clause 10.2:






25










 












	 	9.1.1	 	in the case of any claim under Paragraphs 1 and 2(b) of Schedule 7 (Part 1)
(Incorporation, authority, corporate action, the Shares and the Group Companies), within
the statutory limitation period applicable in the relevant jurisdiction for giving notice
of any such claim;
	 
	 	9.1.2	 	in the case of any claim under Paragraph 14 of Schedule 7 (Part 1) (Tax warranties),
within 30 (thirty) days after expiry of the statutory limitation period applicable in the
relevant jurisdiction for the Tax matter giving rise to such claims and any applicable term
during which additional assessments can be levied under the relevant Law;
	 
	 	9.1.3	 	in the case of any claim under Paragraph 8(a)(iii) and Paragraph 10 of Schedule 7
(Part 1) (HSE matters), within 36 (thirty-six) months after the Effective Time; and
	 
	 	9.1.4	 	in the case of any other claim, within 18 (eighteen) months after the Effective Time.






	9.2	 	Minimum claims
	 
	 	 	Without detracting from any other limitations of liability set out in this Agreement, Seller
shall only be liable under this Agreement in respect of any individual claim, or a series of
claims arising from identical facts, to the extent that the liability agreed or determined in
respect of such claim or series of claims exceeds EUR 10 million (ten million euro), provided
that this limitation shall not apply to any liability of Seller arising under Schedule 8 (Tax
Indemnities and Tax matters).
	 
	9.3	 	Aggregate minimum claims
	 
	 	 	Without detracting from any other limitations of liability set out in this Agreement, Seller
shall not be liable under this Agreement in respect of a claim unless and until the aggregate
amount of all claims for which Seller would otherwise be liable under this Agreement, exceeds
EUR 50 million (fifty million euro) (but then for the full amount), provided that this
limitation shall not apply to any liability of Seller arising under Schedule 8 (Tax
Indemnities and Tax matters).
	 
	9.4	 	Maximum liability
	 
	 	 	The aggregate liability of Seller in respect of all claims under this Agreement shall not
exceed EUR 850 million (eight hundred and fifty million), provided that this limitation shall
not apply to any liability of Seller arising (a) from a breach of Seller’s Warranty in respect
of Paragraphs 1(a), 1(b), 1(e), 2(b)(i) and 2(b)(ii) of Schedule 7 (Part 1), or (b) under
Schedule 8 (Tax Indemnities and Tax matters).
	 
	9.5	 	Provisions
	 
	 	 	Seller shall not be liable under this Agreement in respect of any claim if and to the extent
that any allowance, provision or reserve is made in the Net Debt Statement, or in the Accounts
for the matter giving rise to the claim.
	 
	9.6	 	Matters arising after Reference Time / Effective Time
	 
	 	 	Seller shall not be liable under this Agreement in respect of any matter, act, omission or
circumstance (or any combination thereof), including the aggravation of a matter or
circumstance, to the extent that the same would not have occurred but for:






26









 












	 	9.6.1	 	any matter or thing done or omitted to be done as required by this Agreement or
otherwise at the request and with the written approval of Purchaser, or any other member of
Purchaser’s Group;
	 
	 	9.6.2	 	any act, omission or transaction of Purchaser or any other member of Purchaser’s
Group, or their respective directors, officers, employees or agents or successors in title,
after the Reference Time;
	 
	 	9.6.3	 	any act, omission or transaction of any of the Group Companies, or their respective
directors, officers, employees or agents or successors in title, after Closing;
	 
	 	9.6.4	 	the passing of, or any change in, any Law or administrative practice of any
Governmental Authority after the Reference Time, including any increase in the rates of
Taxation or any imposition of Taxation or any withdrawal of relief from Taxation not
actually in effect at the Reference Time;
	 
	 	9.6.5	 	any change in any accounting or Taxation policy, basis or practice of Purchaser or any
other member of Purchaser’s Group introduced after the Reference Time; or
	 
	 	9.6.6	 	any change in any accounting or Taxation policy, basis or practice of any of the Group
Companies introduced after the Effective Time.






	9.7	 	Purchaser’s Insurance
	 
	 	 	Seller shall not be liable in respect of any claims made by Purchaser or any other member of
Purchaser’s Group, to the extent that the Losses in respect of which a claim is made, are
covered by a policy of insurance in force immediately prior to the Closing Date and insofar as
any member of the Group or another member of Purchaser’s Group actually has recovered under
such insurance, provided that Purchaser shall procure that the relevant insurance claim is and
continues to be pursued with reasonable diligence.
	 
	9.8	 	Net financial benefit
	 
	 	 	Seller shall not be liable under this Agreement in respect of any claims to the extent of any
corresponding savings realized by or quantifiable net financial benefit realized to Purchaser
or any other member of Purchaser’s Group arising in respect of such Losses or the facts giving
rise to such Losses (for example, without limitation, where the amount (if any) by which any
Taxation for which Purchaser or any other member of Purchaser’s Group would otherwise have
been accountable or liable to be assessed is actually or will actually be reduced or
extinguished as a result of the matter giving rise to such liability).
	 
	9.9	 	Mitigation of Losses
	 
	 	 	Purchaser shall procure that all commercially reasonable efforts are made and all commercially
reasonable assistance is given to avoid or mitigate any Losses which in the absence of
mitigation might give rise to a liability in respect of any claim under this Agreement.
	 
	9.10	 	Purchaser’s right to recover






	 	9.10.1	 	Recovery for direct Losses
	 
	 	 	 	Seller shall only be liable in respect of direct losses and shall not be liable in
respect of any indirect or consequential losses.






27











 






	 	9.10.2	 	Recovery from third parties
	 
	 	 	 	Purchaser shall, and shall procure that any other relevant member of Purchaser’s Group
shall, promptly take all reasonably necessary steps to enforce recovery against all
third parties in respect of Losses that are the subject matter of a claim against
Seller. If, before Seller pays an amount in discharge of any claim under this Agreement,
any member of Purchaser’s Group has recovered (whether by payment, discount, credit,
relief, insurance or otherwise) from a third party a sum which compensates any member of
Purchaser’s Group (in whole or in part) in respect of the
Loss which is the subject matter of the claim, then Seller’s obligations shall be
reduced to the extent of the recoveries so received by any member of Purchaser’s Group.
If Seller has paid an amount in discharge of any claim under this Agreement and any
member of Purchaser’s Group subsequently recovers (whether by payment, discount, credit,
relief, insurance or otherwise) from a third party a sum which compensates any member of
Purchaser’s Group (in whole or in part) in respect of the Loss which is the subject
matter of the claim, then Purchaser shall procure that the relevant member of
Purchaser’s Group forthwith pays to Seller the amount recovered, less any costs and
expenses reasonably incurred in obtaining such recovery and limited to the amount
actually paid by Seller in respect of the claim.
	 
	 	9.10.3	 	Double claims
	 
	 	 	 	Purchaser shall not be entitled to recover from Seller under this Agreement more than
once in respect of the same Losses suffered. Without detracting from any other
limitations of liability set out in this Agreement, in the event that any matter, act,
omission or circumstance (or any combination thereof) giving rise to a breach of a
Seller’s Warranty is the subject of an indemnity under this Agreement, Purchaser’s claim
shall be limited to a claim under said indemnity.
	 
	 	9.10.4	 	Fraud
	 
	 	 	 	The limitations set out in this Clause 9 shall not apply to the extent the relevant
claim relates to any fraudulent acts or willful misconduct on part of Seller’s Group
(excluding the Group).






	10.	 	CLAIMS
	 
	10.1	 	Notification of potential claims
	 
	 	 	If Purchaser or any other member of Purchaser’s Group becomes aware of any matter or
circumstance that may give rise to a claim against Seller under this Agreement, save for any
claim made under Schedule 8 (Tax Indemnities and Tax matters), Purchaser shall within 40
(forty) Business Days deliver a notice to Seller setting out such information as is available
to Purchaser or any other member of Purchaser’s Group as is reasonably necessary to enable
Seller to assess the merits of the claim, to act to preserve evidence and to make such
provision as Seller may consider necessary, provided that failure to give such notification
within the aforesaid 40 (forty) Business Days shall not affect Purchaser’s right to make the
claim except to the extent any member of Seller’s Group shall







28









 





	 	 	have been or will be actually
prejudiced as a result of such failure.
	 
	10.2	 	Notification of claims
	 
	 	 	Without detracting from Clause 10.1, notices of claims under this Agreement shall be given by
Purchaser to Seller within the time limits specified in Clause 9.1, specifying full
information of the legal and, to the extent available, factual basis of the claim and the
evidence on which Purchaser relies and, if practicable, an estimate of the amount of Losses
which are, or are to be, the subject of the claim (including any Losses which are contingent
on the occurrence of any future event).
	 
	10.3	 	Commencement of proceedings
	 
	 	 	Without detracting from Clause 10.2, any claim notified to Seller shall (if it has not been
previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn 12 (twelve)
months after the notice is given pursuant to Clause 10.2 unless legal proceedings (including
the dispute resolution procedures set forth in Clause 15.15.3) in respect of it have been
formally commenced.
	 
	10.4	 	Investigation by Seller
	 
	 	 	In connection with any matter or circumstance notified by Purchaser pursuant to Clause 10.1 or
10.2:






	 	10.4.1	 	Purchaser shall procure that the relevant members of Purchaser’s Group allow reasonable
access during normal business hours to Seller and its financial, accounting, legal and
other advisers to investigate the matter or circumstance alleged to give rise to such claim
and whether and to what extent any amount is or may be payable in respect of such claim;
and
	 
	 	10.4.2	 	Purchaser shall use its reasonable efforts to procure that the relevant members of
Purchaser’s Group disclose to Seller all relevant information of which Purchaser or any
other member of Purchaser’s Group is aware which relates to the claim and shall procure
that all relevant members of Purchaser’s Group shall give, subject to their being paid
reasonable costs and expenses, all such information and assistance, including reasonable
access to premises and personnel, and the right to examine and copy or photograph any
assets, accounts, documents and records, in each case as Seller or its financial,
accounting, legal or other advisers may reasonably request.






	10.5	 	Procedure for third party claims
	 
	 	 	If the claim notified to Seller is a result of or in connection with a claim by or liability
to a third party then:






	 	10.5.1	 	no admissions in relation to such third party claim shall be made by or on behalf of
Purchaser or any other member of Purchaser’s Group and the claim shall not be compromised,
disposed of or settled without the prior written consent of Seller;
	 
	 	10.5.2	 	Seller shall be entitled at its own expense and in its absolute discretion, by notice to
Purchaser, and Purchaser’s Group shall duly and fully co-operate to allow Seller, to take
such action after consultation with Purchaser as it deems reasonably necessary to avoid,
dispute, deny, defend, resist, appeal, compromise or contest such claim or liability
(including making counterclaims or other claims against third parties) in the





29









 






	 	 	 	name of and
on behalf of Purchaser or other member of Purchaser’s Group concerned and to control the
conduct of any related proceedings, negotiations or appeals; and
	 
	 	10.5.3	 	where Seller has issued a notice pursuant to Clause 10.5.2, Purchaser’s Group shall give,
subject to their being paid reasonable costs and expenses, all such information (other than
such correspondence as is subject to legal professional privilege of any member of
Purchaser’s Group or their advisors) and assistance including access to premises and
personnel, and the right to examine and copy or photograph any assets, accounts, documents
and records, as Seller may reasonably request for the purpose
referred to in Clause 10.5.2, including instructing such professional or legal advisers
as Seller may nominate to act on behalf of Purchaser or other member of Purchaser’s
Group concerned but in accordance with Seller’s instructions, it being agreed that
Seller shall consult with Purchaser on all relevant matters relating to the claim and
shall forward or procure to be forwarded to Purchaser copies of all material external
correspondence (other than such correspondence as is subject to legal professional
privilege of any member of Seller’s Group) relating to the claim.






	10.6	 	Third party stipulation limitation
	 
	 	 	The provisions of this Clause 10 shall apply mutatis mutandis to any claim made by a third
party under a third party stipulation included in this Agreement.
	 
	11.	 	TAX MATTERS
	 
	 	 	Purchaser and Seller hereby agree to the matters set out in Schedule 8.
	 
	12.	 	RESTRICTIONS
	 
	12.1	 	Restrictions on Seller






	 	12.1.1	 	Seller undertakes with Purchaser and, as an irrevocable third party stipulation
(`derdenbeding ́) after Closing, the Company and all other Group Companies, to procure that
no member of Seller’s Group will, during the Restricted Period:






	 	(a)	 	undertake in any capacity any Restricted Activity or any business
activity which is of the same or similar type thereto and which is or is likely to
be in competition therewith; or
	 
	 	(b)	 	induce or seek to induce any Restricted Employee to become employed
whether as employee, consultant or otherwise by any member of Seller’s Group,
whether or not such Restricted Employee would thereby commit a breach of his
contract of service, provided that the placing of an advertisement of a post
available to a member of the public generally and the recruitment of a person
through an employment agency shall not constitute a breach of this Clause
12.1.1(b), provided that no member of Seller’s Group instructs or encourages such
agency to approach any Restricted Employee.





30









 












	 	12.1.2	 	The restriction in Clause 12.1.1(a) shall not operate to prohibit any member of Seller’s
Group from:






	 	(a)	 	acquiring all or part of the outstanding issued share capital of a
company that undertakes Restricted Activity, provided that such company’s
Restricted Activities represent less than 25% (twenty-five percent) of its
aggregate annual turnover, as published in its last approved annual accounts, or
less than 10% of the combined aggregate turnover of such company and Seller’s
Group, based on the last approved consolidated annual accounts of Seller’s Group
and such company on a pro forma basis, provided that, notwithstanding anything to
the contrary, Seller shall not be prohibited from merging with, or being acquired
by, any
company if the primary purpose of such merger or acquisition was not to avoid the
application of this Clause 12.1; or
	 
	 	(b)	 	fulfilling any obligation pursuant to this Agreement and any agreement
to be entered into pursuant to this Agreement.






	12.2	 	Restriction on Purchaser
	 
	 	 	Purchaser’s Group shall not during the Restricted Period actively induce or directly seek to
induce any person employed in Seller’s Group to become employed by any member of Purchaser’s
Group, provided that the placing of an advertisement of a post available to a member of the
public generally and the recruitment of a person through an employment agency shall not
constitute a breach of this Clause 12.2, provided that no member of Purchaser’s Group
instructs or encourages such agency to approach any such person.
	 
	13.	 	PURCHASER PARENT AND GUARANTOR GUARANTEE
	 
	13.1	 	Guarantee
	 
	 	 	Purchaser Parent and Guarantor hereby, as a separate and independent obligation,
unconditionally and irrevocably guarantees to Seller, and shall be jointly and severally
liable, as co-principal debtor, (`hoofdelijke aansprakelijkheid ́) to Seller for the due and
punctual performance and observance by Purchaser, and any other relevant member of Purchaser’s
Group, and their assigns, of all their obligations, commitments, undertakings, warranties and
indemnities under or pursuant to this Agreement and the Retained Intra-Group Agreements (the
“Guaranteed Obligations”).
	 
	13.2	 	Default; enforcement; non-waiver






	 	13.2.1	 	If and whenever a default occurs for any reason whatsoever in the performance of any of
the Guaranteed Obligations, Purchaser Parent and Guarantor shall forthwith upon demand
unconditionally perform (or procure performance of) and satisfy (or procure the
satisfaction of) the Guaranteed Obligations in regard to which such default has been made
in the manner prescribed by and subject to the rights and limitations contained in this
Agreement.
	 
	 	13.2.2	 	The liability of Purchaser Parent and Guarantor under this Clause 13 shall not be
released or diminished by any variation of the Guaranteed Obligations or any





31








 






	 	 	 	forbearance,
neglect or delay in seeking performance of the Guaranteed Obligations or any granting of
time for such performance.






	14.	 	CONFIDENTIALITY
	 
	14.1	 	Announcements
	 
	 	 	No announcement or circular in connection with the existence or the subject matter of this
Agreement shall be made or issued by or on behalf of any member of Seller’s Group or
Purchaser’s Group without the prior written approval of Seller and Purchaser. This shall not
affect any announcement, filing or circular required by Law or the rules of any recognized
stock exchange on which the shares of Seller or Purchaser Parent and Guarantor are listed,
provided that the party with an obligation to make an announcement or issue a circular shall
consult with Purchaser Parent and Guarantor or Seller, as the case may be, insofar as is
reasonably practicable before complying with such an obligation, and afford such party
reasonable opportunity to review and comment upon any such announcement, filing or circular.
	 
	14.2	 	Confidentiality undertaking






	 	14.2.1	 	The Confidentiality Agreement shall cease to have any force or effect from Closing.
	 
	 	14.2.2	 	Subject to Clause 14.1 and Clause 14.2.3, each of the Parties shall treat as strictly
confidential and not disclose or use any information contained in or received or obtained
as a result of entering into this Agreement (or any agreement entered into pursuant to this
Agreement) which relates to:






	 	(a)	 	the provisions of this Agreement or any agreement entered into pursuant
to this Agreement;
	 
	 	(b)	 	the negotiations relating to this Agreement (or any such other
agreement); or
	 
	 	(c)	 	a Party to this Agreement or the business carried on by it or any
member of its group of companies.






	 	14.2.3	 	Clause 14.2.2 shall not prohibit disclosure or use of any information if and to the
extent:






	 	(a)	 	the disclosure or use is required by or reasonably necessary under Law
or any recognized stock exchange on which the shares of any Party are listed;
	 
	 	(b)	 	the disclosure or use is required to vest the full (reasonably
expected) benefit of this Agreement in any Party;
	 
	 	(c)	 	the disclosure or use is required for the purpose of any judicial
proceedings arising out of this Agreement or any other agreement entered into under
or pursuant to this Agreement or the disclosure is made to a Tax Authority in
connection with the Tax affairs of the disclosing Party;
	 
	 	(d)	 	the disclosure is made to professional advisers of any Party or to
lenders, underwriters or financial advisers to any Party or their legal advisers on
terms that such professional advisers, lenders, underwriters or financial advisers
or





32










 






	 	 	 	legal advisers undertake to comply with the provisions of Clause 14.2.2 in
respect of such information as if they were a party to this Agreement, or to
ratings agencies;
	 
	 	(e)	 	the information is or becomes publicly available (other than by breach
of the Confidentiality Agreement or of this Agreement);
	 
	 	(f)	 	the other Party has given prior written approval to the disclosure or
use;
	 
	 	(g)	 	the information is independently developed after Closing; or
	 
	 	(h)	 	the disclosure is made by a Party in connection with an offering of
debt or equity securities made after a positive advice has been secured by Seller
in relation to
the transactions contemplated by this Agreement under the Netherlands Works
Council Act;






	 	 	 	provided that prior to disclosure or use of any information pursuant to Clause
14.2.3(a), 14.2.3(b), or 14.2.3(c), the Party concerned shall, to the extent
practically possible, promptly notify the other Party of such requirement with a view to
providing the other Party with the opportunity to contest such disclosure or use or to
otherwise agree the timing and content of such disclosure or use.






	15.	 	MISCELLANEOUS
	 
	15.1	 	Further assurances
	 
	 	 	Each of the Parties shall from time to time execute such documents and perform such acts and
things as the other Party may reasonably require to give either Party the full benefit of this
Agreement. Seller will provide Purchaser with such assistance as Purchaser may reasonably
require in order to allow Purchaser to accomplish the purposes of any Restructuring
Transaction.
	 
	15.2	 	Whole agreement






	 	15.2.1	 	This Agreement contains the whole agreement between the parties to this Agreement
relating to the subject matter of this Agreement, to the exclusion of any terms implied by
Law which may be excluded by contract, and supersedes any previous written or oral
agreement between the parties to this Agreement in relation to the matters dealt with in
this Agreement.
	 
	 	15.2.2	 	Purchaser acknowledges that it has not been induced to enter into this Agreement by any
representation, warranty or undertaking not expressly set out in this Agreement.






	15.3	 	No assignment






	 	15.3.1	 	This Agreement shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns. None of the Parties may assign any of its
rights or delegate any of its obligations under this Agreement, by operation of Law or
otherwise, without the prior written consent of the other Party, except as provided in
Clause 15.3.2, except with respect to any Group Company Sale by a member of Purchaser’s
Group in accordance with the terms of this Agreement, and except that each of Seller and
Purchaser may assign any and all of its rights or delegate any and






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	 	 	 	all of its obligations
under this Agreement to one or more of its direct or indirect wholly owned subsidiaries
(but no such assignment shall relieve Seller or Purchaser, as applicable, of any of its
obligations under this Agreement).
	 
	 	15.3.2	 	Any obligation of any Party to the other Party under this Agreement which is performed,
satisfied or fulfilled completely by a member of such Party’s Group, shall be deemed to
have been performed, satisfied or fulfilled by such Party.






	15.4	 	Waiver
	 
	 	 	No waiver of any provision of this Agreement shall be effective unless in writing and signed
by or on behalf of the party entitled to give such waiver.
	 
	15.5	 	Variation
	 
	 	 	No variation of this Agreement shall be effective unless in writing and signed by or on behalf
of each of the Parties.
	 
	15.6	 	Third party rights
	 
	 	 	Save as expressly otherwise stated, this Agreement does not contain a stipulation in favour of
a third party (`derdenbeding ́).
	 
	15.7	 	Rescission
	 
	 	 	Without prejudice to Clauses 4.3.3 and 6.4.1, each Party waives its right to rescind
(`ontbinden ́) this Agreement on the basis of section 6:265 of the Netherlands Civil Code.
Furthermore, a mistaken party shall bear the risk of any mistake (`dwaling ́) in making this
Agreement.
	 
	15.8	 	Method of payment






	 	15.8.1	 	Wherever in this Agreement provision is made for a payment to be made or procured by
Seller to Purchaser, Seller shall arrange that such payment shall be made by Seller for
itself and on behalf of the relevant member of Seller’s Group to Purchaser for itself and
on behalf of the relevant member of Purchaser’s Group.
	 
	 	15.8.2	 	Wherever in this Agreement provision is made for a payment to be made or procured by
Purchaser to Seller, Purchaser shall arrange that such payment shall be made by Purchaser
for itself and on behalf of the relevant member of Purchaser’s Group to Seller for itself
and on behalf of the relevant member of Seller’s Group.
	 
	 	15.8.3	 	Any such payments shall be effected by crediting for same day value the account specified
by Seller or Purchaser, as the case may be, on behalf of the Party entitled to the payment
(reasonably in advance and in sufficient detail to enable payment by telegraphic or other
electronic means to be effected) on or before the due date for payment.
	 
	 	15.8.4	 	Payment of a sum in accordance with this Clause shall be a good discharge to the payer
(and those on whose behalf such payment is made) of its obligation to make such payment and
the payer (and those on whose behalf such payment is made) shall not be obliged to see to
the application of the payment as between those on whose behalf the payment is received.





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	15.9	 	Costs
	 
	 	 	Unless this Agreement provides otherwise, all costs which a party has incurred or must incur
in preparing, concluding or performing this Agreement are for its own account. All transfer
and other similar Taxes and all notarial fees payable in connection with the sale, transfer or
purchase of the Shares and the Shareholder Loan Claim under this Agreement shall be paid by
Purchaser.
	 
	15.10	 	Interest
	 
	 	 	If any Party defaults in the payment when due of any sum payable under this Agreement, the
liability of that Party shall be increased to include interest on such sum from the date when
such payment is due until the date of actual payment (as well after as before judgment) at the
Interest Rate.
	 
	15.11	 	Notices






	 	15.11.1	 	Any notice in connection with this Agreement (a “Notice”) shall be:






	 	(a)	 	in writing;
	 
	 	(b)	 	in English; and
	 
	 	(c)	 	delivered by hand, fax, registered post or by courier using an
internationally recognized courier company.






	 	15.11.2	 	A Notice to Seller shall be sent to Seller at the following address, or such other
person or address as Seller may notify to Purchaser from time to time:
	 
	 	 	 	Akzo Nobel N.V.
	 
	 	 	 	Strawinskylaan 2555
	 
	 	 	 	 1077 ZZ Amsterdam
	 
	 	 	 	The Netherlands
	 
	 	 	 	Fax: +31 20 502 7620
	 
	 	 	 	Attention: General Counsel
	 
	 	15.11.3	 	A Notice to Purchaser and/or Purchaser Parent and Guarantor shall be sent to Purchaser
and/or Purchaser Parent and Guarantor, as the case may be, at the following address, or
such other person or address as Purchaser Parent and Guarantor may notify to Seller from
time to time:
	 
	 	 	 	Schering-Plough Corporation
	 
	 	 	 	2000 Galloping Hill Road
	 
	 	 	 	Kenilworth, NJ 07033-0530
	 
	 	 	 	United States of America
	 
	 	 	 	Fax: +1 (0) 908 298 7555






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	 	 	    Attention: General Counsel
	 





	 	15.11.4	 	A Notice shall be effective upon receipt and shall be deemed to have been received:






	 	(a)	 	at the time of delivery, if delivered by hand, registered post or
courier;
	 
	 	(b)	 	at the time of transmission in legible form, if delivered by fax.






	15.12	 	Invalidity
	 
	 	 	If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in
whole or in part, under any Law:






	 	15.12.1	 	such provision or part shall to that extent be deemed not to form part of this Agreement
but the legality, validity or enforceability of the remainder of this Agreement shall not
be affected;
	 
	 	15.12.2	 	Seller and Purchaser shall use reasonable efforts to agree a replacement provision that
is legal, valid and enforceable to achieve so far as possible the intended effect of the
illegal, invalid or unenforceable provision.






	15.13	 	Counterparts
	 
	 	 	This Agreement may be entered into in any number of counterparts, all of which taken together
shall constitute one and the same instrument. Parties may enter into this Agreement by signing
any such counterpart.
	 
	15.14	 	Notary
	 
	 	 	With reference to the Rules of Professional Conduct (`Verordening beroeps- en gedragsregels ́)
of the Royal Dutch Organization of Civil Law Notaries (`Koninklijke Notariële
Beroepsorganisatie ́) all parties expressly agree that (i) De Brauw Blackstone Westbroek N.V.
acts as counsel to Seller in connection with, or acts as counsel for or on behalf of Seller in
the event of any dispute relating to, this Agreement or any related agreement, and that (ii) a
civil law notary of De Brauw Blackstone Westbroek N.V. executes deeds connected with this
Agreement or any related agreement.
	 
	15.15	 	Dispute resolution






	 	15.15.1	 	Seller and Purchaser and, if applicable, Purchaser Parent and Guarantor shall attempt in
good faith to resolve promptly any dispute arising out of or relating to this Agreement by
negotiation, with the exception of disputes with regard to the determination of the Net
Debt Statement pursuant to Clause 7.1.2 which are to be negotiated and resolved as set out
in said Clause. If the matter (excluding disputes with regard to the determination of the
Net Debt Statement pursuant to Clause 7.1.2) is not resolved in the normal course of
business, either Party may give the other Party written notice of any such unresolved
dispute, after which the dispute shall be referred to senior executives of each Party, who
shall similarly attempt to resolve the dispute.
	 
	 	15.15.2	 	If the dispute referred to in Clause 15.15.1 (with the exception of disputes with regard
to the determination of the Net Debt Statement pursuant to Clause 7.1.2) has not been
resolved by negotiation within 45 (forty-five) Business Days after delivery of the written
notice referred to in Clause 15.15.1, or if Seller’s, Purchaser’s or Purchaser Parent and
Guarantor’s senior executives, as the case may be, fail to meet within 20 (twenty)






36










 






	 	 	 	Business
Days after delivery of such notice, then Seller and Purchaser and/or Purchaser’s Parent, as
the case may be, shall endeavour to settle the dispute by mediation in the Netherlands in
accordance with the rules of ACB Mediation. The language of the mediation shall be English.
	 
	 	15.15.3	 	If the dispute referred to in Clause 15.15.1 (with the exception of disputes with regard
to the determination of the Net Debt Statement pursuant to Clause 7.1.2) has not been
resolved by mediation as provided in Clause 15.15.2 within 90 (ninety) Business Days after
the initiation of such procedure, then, at the election of Seller or Purchaser or Purchaser
Parent and Guarantor, as the case may be, the dispute shall be finally and exclusively
settled by arbitration in the Netherlands in accordance with the rules of arbitration of
the Netherlands Arbitration Institute (`Nederlands Arbitrage Instituut ́). The
tribunal shall comprise three arbitrators. The procedure shall be conducted in the
English language in accordance with the rules of law (`regelen des rechts ́).






	15.16	 	Governing law






	 	15.16.1	 	This Agreement and the documents to be entered into pursuant to it, save as expressly
otherwise provided therein, shall be governed by and construed in accordance with the Law
of the Netherlands.
	 
	 	15.16.2	 	Parties exclude the application of the United Nations Convention on Contracts for the
International Sale of Goods to this Agreement and the documents to be entered into pursuant
to it.





AGREED AND SIGNED:



on 30 September 2007 for and on behalf of Purchaser:




	 	 	 	 	 	 	 	 	 
	SCHERING-PLOUGH INTERNATIONAL C.V.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:	 	 





On 30 September 2007 for and on behalf of Purchaser Parent and Guarantor:




SCHERING-PLOUGH
CORPORATION



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:	 	 





37










 







on 30 September 2007 for and on behalf of Seller:




	 	 	 	 	 	 	 	 	 
	AKZO NOBEL N.V.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:	 	 






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