EX-10.1



 





Exhibit 10.1
 

Execution Version October 1 2007




AMENDMENT TO THE




SHARE PURCHASE AGREEMENT

dated 12/13 May 2007 by and between




MERCK GENERICS HOLDING GMBH

MERCK S.A.

MERCK INTERNATIONALE BETEILIGUNGEN GMBH

as Sellers




MERCK KGAA

as Sellers’ Guarantor and Sellers’ Representative




and




MYLAN LABORATORIES INC.

as Purchaser




for the acquisition of




all shares in

Merck dura GmbH,

Merck Generics Group B.V.,

EMD, Inc.,

Merck Generics Belgium B.V.B.A., and

Merck Genericos S.L.




1 October 2007




Skadden, Arps, Slate Meagher & Flom LLP

An der Welle 5

60322 Frankfurt am Main

Germany




 









 





Table of Contents




	 	 	 	 	 	 	 
	Table of Contents	 	 	i	 
	Index of Defined Terms and Abbreviations
	 	iii
	List of Exhibits and Schedules	 	 	v	 
	AMENDMENT TO SHARE PURCHASE AGREEMENT	 	 	1	 
	PREAMBLE	 	 	1	 
	1. Definitions and Rules of Construction	 	 	1	 
	 
	 	1.1 Certain Defined Terms	 	 	1	 
	 
	 	1.2 Headings	 	 	2	 
	 
	 	1.3 German Terms	 	 	2	 
	 
	 	1.4 General Rules of Construction	 	 	2	 
	2. Additional Target Companies, Sellers and Transferees	 	 	2	 
	 
	 	2.1 The Additional Target Companies	 	 	2	 
	 
	 	2.2 The Additional Sellers	 	 	3	 
	 
	 	2.3 The Additional Purchasers and Transferees	 	 	3	 
	3. Transferee Designations	 	 	4	 
	 
	 	3.1 Dura, MGG, Merck Belgium and Merck Genericos	 	 	4	 
	 
	 	3.2 EMD	 	 	4	 
	 
	 	3.3 Additional Assumption of Liabilities	 	 	5	 
	 
	 	3.4 No Rights of Designated Transferees	 	 	6	 
	4. Sale and Transfer of additional Target Companies and the Companies	 	 	6	 
	 
	 	4.1 Additional Actions before or on Closing	 	 	6	 
	 
	 	4.2 Sale and Transfer of the Companies	 	 	7	 
	 
	 	4.3 Scope of Sale with respect to the Companies	 	 	7	 
	5. IP Transfers and Continuing Pre-Sale Reorganization	 	 	8	 
	 
	 	5.1 EpiPen	 	 	8	 
	 
	 	5.2 Duranifin and Enadura	 	 	8	 
	 
	 	5.3 Continuance of Pre-Sale Reorganization	 	 	9	 
	 
	 	5.4 Agreements with Sellers’ Affiliates	 	 	10	 
	6. Settlement of Intercompany Balances	 	 	10	 
	 
	 	6.1 Conversion to Intercompany Balances	 	 	10	 
	 
	 	6.2 Settlement between Sellers’ Representative and Purchaser	 	 	11	 
	7. Closing Date, Order of Closing Actions and other Transfer Actions	 	 	12	 
	 
	 	7.1 Closing Date	 	 	12	 
	 
	 	7.2 Pre-Closing Actions	 	 	12	 
	 
	 	7.3 Closing Actions	 	 	13	 
	 
	 	7.4 Closing Confirmation	 	 	15	 






 









 





	 	 	 	 	 	 	 
	 
	 	7.5 Director Resignations	 	 	15	 
	 
	 	7.6 Prasfarma	 	 	15	 
	8. Purchase Price and Effective Date	 	 	16	 
	 
	 	8.1 No Effect on Purchase Price	 	 	16	 
	 
	 	8.2 Effective Date	 	 	16	 
	 
	 	8.3 Exchange Rates	 	 	17	 
	9. Indemnification and Costs	 	 	17	 
	 
	 	9.1 Indemnification	 	 	17	 
	10. Miscellaneous	 	 	19	 
	 
	 	10.1 Notices	 	 	19	 
	 
	 	10.2 Severability	 	 	19	 
	 
	 	10.3 Exhibits	 	 	19	 
	 
	 	10.4 Amendments	 	 	19	 
	 
	 	10.5 Governing Law	 	 	19	 
	 
	 	10.6 Arbitration	 	 	19	 






 









 





Index of Defined Terms and Abbreviations




	 	 	 	 	 
	Additional Seller

	 	 	3	 
	Additional Target Companies

	 	 	3	 
	Affiliate Intercompany Balances

	 	 	11	 
	Alphapharm

	 	 	2	 
	Alphapharm Note

	 	 	6	 
	Alphapharm Transfer

	 	 	6	 
	Alphapharm Transfer Form

	 	 	6	 
	Amendment

	 	 	1	 
	Companies

	 	 	1	 
	Designated Transferees

	 	 	3	 
	Dura IP Transfer Agreement

	 	 	8	 
	Effective Date

	 	 	17	 
	EpiPen Sale Agreement

	 	 	8	 
	French Tax Code

	 	 	7	 
	Genericos Transfer Deed

	 	 	4	 
	Genius Belgium Transfer Deed

	 	 	4	 
	Genius GmbH

	 	 	2	 
	Genius GmbH Note

	 	 	6	 
	Genius GmbH SPA

	 	 	6	 
	Genius GmbH Transfer

	 	 	6	 
	Genpharm Note

	 	 	6	 
	Intercompany Settlement

	 	 	12	 
	Merck

	 	 	1	 
	Merck Affiliate Loan

	 	 	11	 
	Merck Affiliate Obligation

	 	 	11	 
	Merck Belgium Shares

	 	 	8	 
	Merck France

	 	 	3	 
	Merck France Note

	 	 	7	 
	Merck France Transfer

	 	 	7	 
	Merck France Transfer Order

	 	 	7	 
	Merck Intercompany Balances

	 	 	10	 
	Merck Non-US Intercompany Balance

	 	 	11	 
	Merck US Intercompany Balance

	 	 	11	 
	Mylan Australia

	 	 	3	 
	Mylan Canada

	 	 	3	 






 









 





	 	 	 	 	 
	Mylan France

	 	 	3	 
	Mylan Holding

	 	 	2	 
	Mylan Luxembourg 2

	 	 	1	 
	New Belgium Shares

	 	 	8	 
	New Transfers

	 	 	6	 
	Non-US Affiliate Intercompany Balances

	 	 	11	 
	Outside Date

	 	 	19	 
	Parties

	 	 	2	 
	Prasfarma Expense Cap

	 	 	16	 
	Pre-Closing Actions

	 	 	13	 
	Purchaser

	 	 	1	 
	Seller 1

	 	 	1	 
	Seller 2

	 	 	1	 
	Seller 3

	 	 	1	 
	Sellers

	 	 	1	 
	Sellers’ Guarantor

	 	 	1	 
	Sellers’ Representative

	 	 	1	 
	Share Purchase Agreement

	 	 	1	 
	Shareholder Loans

	 	 	10	 
	Specified Terms

	 	 	6	 
	Subsidiary Loans

	 	 	10	 
	Transitional Prasfarma Solution

	 	 	16	 
	US Affiliate Intercompany Balances

	 	 	11	 







 









 








List of Exhibits




	 	 	 
	Exhibit 3.1.2(a)

	 	Dura Transfer Deed
	Exhibit 3.1.2(b)

	 	MGG Transfer Deed
	Exhibit 3.1.2(c)

	 	Merck Belgian Transfer Deed
	Exhibit 3.1.2(d)

	 	Genericos Transfer Deed
	Exhibit 4.1.1(a)(i)

	 	Genius GmbH SPA
	Exhibit 4.1.1(a)(ii)

	 	Genius GmbH Note
	Exhibit 4.1.1(b)(i)

	 	Alphapharm Transfer Deed
	Exhibit 4.1.1(b)(ii)

	 	Alphapharm Note
	Exhibit 4.1.1(c)(i)

	 	Merck France Transfer Order
	Exhibit 4.1.1(c)(ii)

	 	Merck France Notess
	Exhibit 5.1

	 	EpiPen Sale Agreement
	Exhibit 5.2

	 	Dura IP Transfer Agreement
	Exhibit 5.3

	 	Assets
	Exhibit 5.4

	 	Agreements with Sellers’ Affiliates
	Exhibit 6.2.4

	 	Intercompany Payment Agreements
	Exhibit 7.3.1(g)

	 	Brand License Agreement
	Exhibit 7.3.1(h)

	 	Transitional Services Agreement
	Exhibit 7.3

	 	Closing Confirmation






 









 






 v 




AMENDMENT TO SHARE PURCHASE AGREEMENT



This Amendment (this “Amendment”) to the Share Purchase Agreement dated 12/13 May 2007 (roll of
deeds no. 100 of 2007 of the notary Dr. Burkhardt Meister, Frankfurt am Main) by and between the
Parties set forth below (the “Share Purchase Agreement”) is made as of 1 October 2007 by and
between





	1.	 	Merck Generics Holding GmbH, a limited liability company organized under the laws of Germany
and registered with the commercial register (Handelsregister) of the municipal court
(Amtsgericht) of Darmstadt, Germany, under HRB 7759,





 - “Seller 1” -





	2.	 	Merck S.A., a stock corporation organized under the laws of France and registered with the
commercial register (registre de commerce et des sociétés) of Lyon under no. 777335340 RCS
Lyon,





 - “Seller 2” -





	3.	 	Merck Internationale Beteiligungen GmbH, a limited liability company organized under the laws
of Germany and registered with the commercial register of the municipal court of Darmstadt,
Germany, under HRB 8239,





 - “Seller 3” -




 - Seller 1, Seller 2 and Seller 3

jointly the “Sellers” -





	4.	 	Merck KGaA, a partnership limited by shares organized under the laws of Germany and
registered with the commercial register of the municipal court of Darmstadt, Germany, under
HRB 6164,





 - “Merck”, and also referred to as

“Sellers’ Guarantor” and “Sellers’ Representative” -





	5.	 	Mylan Laboratories Inc., a corporation organized under the laws of the Commonwealth of
Pennsylvania with business address at 1500 Corporate Drive, Canonsburg, Pennsylvania 15317,
U.S.A.,





 -
“Purchaser” -





	6.	 	Mylan Luxembourg 2 S.á.r.L, a limited liability company organized under the laws of
Luxembourg with business address at 8-10 rue Mathias Hard, L-1717 Luxembourg, Luxembourg,





 - “Mylan Luxembourg 2” -





	7.	 	Mylan Delaware Holding Inc., a corporation organized under the laws of Delaware,
U.S.A., with registered address at 1500 Corporate Drive, Canonsburg, PA 15317, U.S.A.





 - “Mylan Holding” -




 - Sellers, Sellers’ Guarantor, Purchaser, Mylan Luxembourg 2

and Mylan Holding are also referred to as “Parties”





 









 








PREAMBLE



WHEREAS, the Purchaser, the Sellers and Sellers’ Guarantor have executed on 12/13 May 2007 the
Share Purchase Agreement for the sale and purchase of the generics business, as further specified
in the Share Purchase Agreement, operated by Sellers’ Representative through various direct and
indirect subsidiaries;



WHEREAS, the Share Purchase Agreement provides for a direct or indirect acquisition of all shares
in Merck Dura GmbH, Merck Generics Group B.V., EMD, Inc., Merck Generics Belgium B.V.B.A. and Merck
Genericos S.L. (together, the “Companies”) and indirectly the respective Subsidiaries of the
Companies;



WHEREAS, Section 3.1.5 (Structure of Transaction) of the Share Purchase Agreement provides that at
the election of Purchaser, subject to certain terms and conditions, (i) any one or more Affiliates
of Purchaser may be substituted for Purchaser in the transaction and (ii) Purchaser or any such
substituted purchaser or purchasers may directly acquire Interests in any Subsidiary, either in
lieu of or in addition to acquisitions of the Shares in the Companies;



WHEREAS, Purchaser has proposed to Sellers and Sellers’ Representative certain changes to the
acquisition structure, which Sellers and Sellers’ Representative have considered in good faith and
find generally acceptable;



WHEREAS, (i) Purchaser shall fully indemnify Sellers and Sellers’ Affiliates for all Taxes to the
extent any changes in acquisition structure contemplated by this Amendment increase the Tax costs
to Sellers and Sellers’ Affiliates above the amount of costs that would have been incurred in
connection with the sales and transfers set forth in Section 3.1 of the Share Purchase Agreement as
of the Signing Date and (ii) all incremental costs and expenses (including reasonable out of pocket
expenses for counsel) incurred by Sellers or Sellers’ Affiliates in connection with the
implementation of any substitution or change in the acquisition structure contemplated by this
Amendment or any alternative structure considered previously by Purchaser and proposed in writing
(including by way of email) to Sellers or Sellers’ Affiliate shall be reimbursed, and all risks
related to the acquisition structure changes shall be assumed, by Purchaser; and



WHEREAS, the Parties wish to agree on (i) certain changes to the acquisition structure proposed by
Purchaser subject to the terms and conditions set forth in this Amendment; (ii) the additional
actions in connection with such changes to the acquisition structure; and (iii) certain other
provisions.



NOW THEREFORE, the Parties agree as follows:




1.

DEFINITIONS AND RULES OF CONSTRUCTION





	1.1	 	Certain Defined Terms
	 
	 	 	Capitalized terms used but not defined herein shall have the meaning ascribed to them




1









 






	 	 	in the Share Purchase Agreement.
	 	 	 
	1.2	 	Headings
	 
	 	 	The headings in this Amendment are inserted for convenience only and shall not affect the
interpretation of this Amendment.
	 
	1.3	 	German Terms
	 
	 	 	If any provision in this Amendment contains an English term after which either in the same
provision or elsewhere in this Amendment a term or terms in German have been added in
parentheses and/or italics, then it shall be solely such German term and not the English term
that is decisive for the interpretation of the respective provision.
	 
	1.4	 	General Rules of Construction
	 
	 	 	The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation” and shall not be construed to
express limitation in any way. The word “will” shall be construed to have the same meaning
and effect as the word “shall”. Unless the context requires otherwise (i) any definition of,
or reference to, any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (ii) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (iii) the words “herein”,
“hereof”, “hereby” and “hereunder”, and words of similar import, shall be construed to refer
to this Amendment in its entirety and not to any particular provision hereof, (v) the words
“immediately” and “promptly” shall mean without undue delay (ohne schuldhaftes Zögern), and
(vi) all references herein to Sections, Exhibits and Disclosure Schedules shall be construed
to refer to Sections of, and Exhibits and Disclosure Schedules to, this Amendment unless
indicated otherwise in this Amendment.





2.

ADDITIONAL TARGET COMPANIES, SELLERS AND TRANSFEREES 





	2.1	 	The Additional Target Companies






	 	2.1.1	 	Genius GmbH. Allgemeine Beteiligungsgesellschaft Genius Deutschland mbH
(“Genius GmbH”), is a limited liability organized under the laws of Germany registered
with the municipal court of Darmstadt, Germany, under HRB 86194.
	 
	 	2.1.2	 	Alphapharm. Alphapharm Pty. Ltd.
(“Alphapharm”), is a proprietary




2









 






	 	 	 	company limited by shares organized under the laws of New South Wales,
Australia, and registration number ACN 002 359 739.
	 	 	 	 
	 	2.1.3	 	Merck France. Merck Generics France Holding S.A.S. (“Merck France”) is
a French société par actions simplifiée organized under the laws of France having its
registered office at 37 rue Saint-Romain, Lyon (69008), France, and registered with the
Lyon Trade and Companies Register under the number 399 293 323;
	 
	 	2.1.4	 	Definitions. Genius GmbH, Alphapharm and Merck France shall hereinafter
also be referred to as the “Additional Target Companies”.






	2.2	 	The Additional Sellers
	 
	 	 	MGG shall also be referred to as the “Additional Seller”.
	 
	2.3	 	The Additional Purchasers and Transferees






	 	2.3.1	 	Mylan Holding. Mylan Delaware Holding Inc. is a corporation organized
under the laws of Delaware, U.S.A., with registered address at 1500 Corporate Drive,
Canonsburg, PA 15317, U.S.A., and a wholly owned subsidiary of Purchaser.
	 
	 	2.3.2	 	Mylan Australia. Mylan Australia Pty. Ltd (“Mylan Australia”) is a
proprietary company limited by shares organized under the laws of Victoria, Australia,
with business address at c/o Hall & Wilcox, Level 30 Bourke Place, 600 Bourke Street,
Melbourne VIC 3000, Australia, with registration number ACN 126 990 029, and a wholly
owned subsidiary of Purchaser.
	 
	 	2.3.3	 	Mylan Canada. Mylan Canada, ULC (“Mylan Canada”) is an unlimited
liability company organized under the laws of Alberta, Canada, with business address at
3400, 105 — 6th Avenue SW, Calgary, Alberta, T2P3Y7 C, Canada, and a wholly owned
subsidiary of Purchaser.
	 
	 	2.3.4	 	Mylan France. Mylan France S.A.S. (“Mylan France”) is a French société
par actions simplifiée with a share capital of EUR 37,000 organized under the laws of
France having its registered office at 8 avenue Hoche, 75008 Paris, France, and
registered with the Commercial and Company Registry of Paris under number 499 944 734,
and a wholly owned subsidiary of Purchaser.
	 
	 	2.3.5	 	Mylan Luxembourg 2. Mylan Luxembourg 2 is a limited liability company
organized under the laws of Luxembourg with business address at 8-10 rue Mathias Hard,
L-1717 Luxembourg, Luxembourg., and a wholly owned
subsidiary of Purchaser.
	 
	 	2.3.6	 	Definitions. Mylan Luxembourg 2 and Mylan Holding shall also be
referred to as the “Designated Transferees”.




3









 






	 	2.3.7	 	Purchaser hereby represents and warrants to Sellers in the form of an
independent guarantee (selbständiges Garantieversprechen) that the statements made in
this Section 2.3 are correct on the date hereof.





3.

TRANSFEREE DESIGNATIONS





	3.1	 	Dura, MGG, Merck Belgium and Merck Genericos






	 	3.1.1	 	Designation. Pursuant to Section 21.5 of the Share Purchase Agreement,
Purchaser hereby assigns to Mylan Luxembourg 2 its rights as purchaser under the Share
Purchase Agreement to receive the Dura Share, the Merck Belgium Shares, the Merck
Genericos Shares and the MGG Shares and the right to receive the portion of (i) the
excess of the Final Purchase Price over the Preliminary Purchase Price pursuant to
Section 4.2.2 of the Share Purchase Agreement, if any, and (ii) the excess of the
Adjustment Purchase Price over the Final Purchase Price pursuant to Section 4.3 of the
Share Purchase Agreement, if any, in each case allocated to such Share(s) pursuant to
Exhibit 4.1.4 of the Share Purchase Agreement. As a result thereof, subject to the
satisfaction or waiver of the Closing Conditions and the terms of the Share Purchase
Agreement and this Amendment, at the Closing Date (i) Seller 1 shall transfer the Dura
Share and the MGG Shares to Mylan Luxembourg 2, and (ii) Seller 3 shall transfer the
Merck Belgium Shares and the Merck Genericos Shares to Mylan Luxembourg 2, in each case
instead of to Purchaser, but otherwise in accordance with Section 3.1.2 of the Share
Purchase Agreement and Section 3.1.2 hereof. By consummating the respective transfers on
the Closing Date to Mylan Luxembourg 2, Seller 1 and Seller 3 shall have fulfilled their
obligations towards Purchaser under the Share Purchase Agreement to transfer the
respective Shares on Closing to Purchaser.
	 
	 	3.1.2	 	Transfer Deeds. As a result of the transferee designations set forth in
Section 3.1.1, the Dura Transfer Deed shall substantially be in the form set forth in
Exhibit 3.1.2(a), the MGG Transfer Deed shall be substantially in the form set forth in
Exhibit 3.1.2(b), the Merck Belgium Transfer Deed shall be substantially the form set
forth in Exhibit 3.1.2(c), and the Genericos Transfer Deed shall be substantially the
form set forth in Exhibit 3.1.2(d).






	3.2	 	EMD
	 
	 	 	Pursuant to Section 21.5 of the Share Purchase Agreement, Purchaser hereby assigns to Mylan
Holding its rights as purchaser under the Share Purchase Agreement to receive the EMD Shares
and the right to receive (i) the excess of the Final Purchase Price over the Preliminary
Purchase Price pursuant to Section 4.2.2 of the Share Purchase Agreement, if any, and (ii)
the excess of the Adjustment Purchase Price over the Final 




4









 






	 	 	Purchase Price pursuant to Section
4.3 of the Share Purchase Agreement, if any, in each case allocated to such Share(s) pursuant
to Exhibit 4.1.4 of the Share Purchase Agreement. As a result thereof, subject to the
satisfaction or waiver of the Closing Conditions and the terms of the Share Purchase
Agreement and this Amendment, Seller 2 shall transfer on the Closing Date the EMD Shares to
Mylan Holding instead of to Purchaser, but otherwise in accordance with Section 3.1.2 of the
Share Purchase Agreement. By consummating the respective transfer on the Closing Date to
Mylan Holding, Seller 2 shall have fulfilled its obligations towards Purchaser under the
Share Purchase Agreement to transfer the EMD Shares on Closing to Purchaser.
	 
	3.3	 	Additional Assumption of Liabilities






	 	3.3.1	 	Additional Assumption of Liabilities. Each Designated Transferee hereby
also assumes the liabilities of Purchaser to pay the Purchase Price and the Preliminary
Purchase Price, respectively, to Sellers by means of an additional assumption of
liabilities (Schuldbeitritt) with respect to the portion of the Purchase Price and the
Preliminary Purchase Price, respectively, allocated to the Shares to be transferred to
the respective Designated Transferee under Sections 3.1 and 3.2. As a result of such
additional assumption of liabilities (Schuldbeitritt), Sellers shall have independent
claims against the Designated Transferees to pay the portion of the Purchase Price and
the Preliminary Purchase Price, respectively, allocated to the Shares transferred to
them. For the avoidance of doubt, such claims shall be in addition to, and not in
replacement of, the obligations of Purchaser under the Share Purchase Agreement, which
shall remain unaffected (joint and several liability) (gesamtschuldnerische Haftung).
	 
	 	3.3.2	 	Role of Designated Transferees. The Designated Transferees shall not be
a “Purchaser” within the meaning of the Share Purchase Agreement, and the Designated
Transferees (i) shall have no rights against Sellers as purchaser (Käufer) in connection
with the sale and transfer of the Shares other than the assigned rights of Purchaser to
receive, and become owners, of the Shares (dinglicher Empfänger) and to receive the
adjustments in connection with the Purchase Price as specified in more detail in
Sections 3.1 and 3.2. and (ii) as a result of the additional assumption of liabilities
will also be obligated towards Sellers to pay the respective portion of the Purchase
Price and the Preliminary
Purchase Price, respectively.
	 
	 	3.3.3	 	Payments by Designated Transferees. Sellers and Sellers’ Representative
will accept payments made by the Designated Transferees on the outstanding Purchase
Price and the Preliminary Purchase Price, respectively, in satisfaction of Sellers’
respective claim to receive the Purchase Price and the Preliminary Purchase Price,
respectively, from Purchaser and the Designated Transferees as joint and several
debtors.










5









 






	3.4	 	No Rights of Designated Transferees
	 
	 	 	Except for the rights and obligations expressly set forth in this Amendment and the transfer
documents for the respective Shares (the “Specified Terms”), the Designated Transferees shall
have no other rights against or obligations to Sellers or Sellers’ Representative under or in
connection with the sale and transfer of the Shares, and all rights and obligations between
the Parties in connection with these sales and transfers of the Shares, other than the
Specified Terms, shall be exclusively governed by the Share Purchase Agreement and shall
exist exclusively between Purchaser on the one side and Sellers and Sellers’ Representative
on the other side as if the transfers of the Shares were entered into and consummated between
Purchaser and the respective Seller as originally contemplated by the Share Purchase
Agreement. Purchaser shall procure that the Designated Transferees will act accordingly and
not seek any rights or claims against Sellers or Sellers’ Representative under or in
connection with these sales and transfers other than the Specified Terms.





4.

SALE AND TRANSFER OF ADDITIONAL TARGET COMPANIES AND THE COMPANIES





	4.1	 	Additional Actions before or on Closing






	 	4.1.1	 	New Transfer Actions. Pursuant to Section 3.1.5 of the Share Purchase
Agreement, and subject to the terms and Conditions of this Amendment, in particular
Sections 4.1.2 and 7.3.2, the Parties hereby agree to implement the following transfers,
on or before the Closing Date or as otherwise indicated, respectively, by (i) taking the
specific actions stated in Section 7 to be taken by the relevant Party and (ii) in the
order specified in Section 7 (the “New Transfers”):






	 	(a)	 	Sellers shall cause MGG to sell and transfer to Mylan Canada
(i) the shares in Genius GmbH and (ii) the promissory note issued by Genius
GmbH to MGG for the acquisition of Genpharm, Inc., a corporation organized
under the laws of Ontario, Canada (the “Genpharm Note”) pursuant to a share and
note purchase and transfer agreement in the form attached as Exhibit
4.1.1(a)(i)(i) (the “Genius
GmbH SPA”) in exchange for a promissory note (the “Genius GmbH Note”) in
the form as attached as Exhibit 4.1.1(a)(ii) (the “Genius GmbH Transfer”);
	 
	 	(b)	 	Sellers shall cause MGG to sell and transfer the shares in
Alphapharm to Mylan Australia pursuant to a share transfer form in the form
attached as Exhibit 4.1.1(b)(i) (the “Alphapharm Transfer Form”) in exchange
for a promissory note (the “Alphapharm Note”) in the form as attached as
Exhibit 4.1.1(ii) (the “Alphapharm Transfer”); and




6









 






	 	(c)	 	Purchaser expressly confirms its intent that the Merck France
Transfer falls within the scope of Section 223 B c. of the Code General des
Impôts (the “French Tax Code”). In particular, if the Purchaser, or one of its
Affiliates (other than Mylan France), were to hold the Shares in Merck France
as a result of the transactions contemplated hereby, Purchaser expressly
confirms its intent to immediately reassign, or to cause such Affiliate to
immediately reassign, the said Shares to Mylan France in order to comply with
the Section 223 B c. of the French Tax Code. Sellers shall cause MGG to sell
and transfer the shares in Merck France to Mylan France pursuant to a share
transfer order in the form attached as Exhibit 4.1.1(c)(i) (the “Merck France
Transfer Order”) in exchange for two promissory notes (the “Merck France
Notes”) in the form as attached as Exhibit 4.1.1(c)(ii) (the “Merck France
Transfer”). The Parties acknowledge that Sellers have agreed to effect the
Merck France Transfer without having examined, or assuming any responsibility
or liability for, the Purchaser’s intent that the Merck France Transfer
complies with Section 223 B c. of the French Tax Code or any Tax effects
desired by Purchaser.






	 	4.1.2	 	Separate Obligations. The failure (including by way of inability) of any
Party to perform any action required to be taken by it under any of these Sections
4.1.1(a), 4.1.1(b) and 4.1.1(c) shall not relieve such Party or any of its Affiliates to
take any other action under Sections 4.1.1(a), 4.1.1(b) and 4.1.1(c); it being
understood that the individual actions under each of Sections 4.1.1(a), 4.1.1(b) and
4.1.1(c) shall be taken simultaneously (Zug-um-Zug) by the Parties to such actions.
	 
	 	4.1.3	 	Final Structure. Purchaser hereby confirms its current intent not to
request or make any further changes to the acquisition structure contemplated by this
Amendment, it being understood that the Parties can mutually agree otherwise (without
being obligated to do so).






	4.2	 	Sale and Transfer of the Companies






	 	4.2.1	 	The obligations of the Parties under the Share Purchase Agreement to transfer
the Shares in the Companies on the Closing Date, subject to the satisfaction or waiver
of the Closing Conditions, pursuant to Section 8 of the Share Purchase Agreement, as
amended by this Amendment, shall remain unaffected by the New Transfers. The shares in
the Additional Target Companies shall not constitute “Shares” in the meaning of the
Share Purchase Agreement.






	4.3	 	Scope of Sale with respect to the Companies






	 	4.3.1	 	Status of Merck Belgium. Section 2.1.4 of the Share Purchase Agreement
sets forth that Merck Belgium has a stated capital (maatschappelijk kapitaal) of EUR
18,550 represented by 18,550 nominative shares (aandelen opnaam), and that Seller 3
holds 18,549 (referred to in the Share Purchase Agreement as the 




7









 






	 	 	 	“Merck Belgium Shares”)
and MGG holds one of these shares. In connection with a pre-sale restructuring in
Belgium the share capital of Merck Belgium was increased to 5,872,136 shares by issuance
of 5,853,271 new shares to Seller 3 (the “New Belgium Shares”) and by issuance of 315
shares to MGG.
	 
	 	4.3.2	 	Transfer of New Shares. The Parties hereby confirm their agreement that
the sale of the Merck Belgium Shares by Seller 3 under Section 3.1.1 of the Share
Purchase Agreement shall comprise all shares held by Seller 3 in Merck Belgium on the
Closing Date, and that the obligation of Seller 3 to transfer the Merck Belgium Shares
under Section 3.1.2 (d) of the Share Purchase Agreement as part of Closing will also
include the New Belgium Shares. As from the date hereof, the term “Merck Belgium Shares”
as defined in the Share Purchase Agreement shall also include the New Belgium Shares.





5.

IP TRANSFERS AND CONTINUING PRE-SALE REORGANIZATION





	5.1	 	EpiPen
	 
	 	 	The Parties agree that in deviation from, and in satisfaction of, Section 16.2.4, first
sentence, of the Share Purchase Agreement, subject to the satisfaction or waiver of the
Closing Conditions and the terms and conditions of the Share Purchase Agreement, as amended
by this Amendment, that Sellers shall ensure that EMD Chemicals Inc. sells and transfers the
Trademark EpiPen to Purchaser on the Closing Date for a purchase
price of EUR 22,000,000 (as provided in Exhibit 4.1.4. to the Share Purchase Agreement)
pursuant to an IP Sale and Transfer Agreement substantially in the form attached as Exhibit
5.1 (the “EpiPen Sale Agreement”). The Execution of the EpiPen Sale Agreement will be an
additional Closing Action. The purchase price under the EpiPen Sale Agreement shall be part
of the Purchase Price under the Share Purchase Agreement.
	 
	5.2	 	Duranifin and Enadura
	 
	 	 	The Parties agree that in deviation from, and in satisfaction of, Section 16.2.4, second
sentence, of the Share Purchase Agreement, subject to the satisfaction or waiver of the
Closing Conditions and the terms and conditions of the Share Purchase Agreement, as amended
by this Amendment, Seller 1 shall contribute and transfer the Trademarks Duranifin and
Enadura to Dura on the Closing Date as contribution into the capital reserves of Dura
pursuant to a shareholder resolution and transfer agreement substantially in the form
attached as Exhibit 5.2 (the “Dura IP Transfer Agreement”). The Purchase Price allocated to
Dura pursuant to Exhibit 4.1.4 to the Share Purchase Agreement will accordingly be increased
by EUR 800,000, and otherwise there will no longer be a part of the Purchase Price allocated
to these Trademarks. The Execution of the Dura IP Transfer Agreement will be an additional
Closing Action.




8









 






	5.3	 	Continuance of Pre-Sale Reorganization






	 	5.3.1	 	The Parties agree that, upon effectiveness of this Agreement, Section 14.1 of
the Share Purchase Agreement shall be of no further force and effect and that it shall
be replaced in its entirety by this Section 5.3; provided that for all purposes
of the Share Purchase Agreement, all references to “Exhibit 14.1(a),” “Exhibit 14.1(b)”
and “Excluded Jurisdictions” shall be deemed to refer to such terms as defined in the
Share Purchase Agreement without such effect to this Amendment.
	 
	 	5.3.2	 	Exhibit 14.1(a) to the Share Purchase Agreement sets forth certain
reorganization measures that Sellers have taken or are in the process of taking or will
take, as the case may be (such measures, the “Pre-Sale Reorganization”), and the status
of the Pre-Sale Reorganization as of the Signing Date. Sellers shall continue and
complete, and take all actions necessary or expedient in connection with, the Pre-Sale
Reorganization prior to the Effective Date, except for the actions contemplated to occur
after the Effective Date as set forth in Exhibit 14.1(a) to the Share Purchase
Agreement. To the extent that, after giving effect to the Pre-Sale Reorganization and
the activities contemplated by Sections 16.2.2 and 16.2.4 (as amended pursuant to
Sections 5.1 and 5.2 of this Amendment) of the Share Purchase Agreement, as of the
Closing Date Sellers and Sellers’ Affiliates own any assets of whatever
kind and nature, real or personal, tangible or intangible, intended to be used
exclusively in the operation or conduct of the Business, Sellers and Sellers’
Affiliates will, in consultation with Purchaser, transfer such assets, without
charge, to the Group Company or Group Companies that used such assets as of the
Effective Date. In the event that Sellers identify any such asset after the Closing
Date, Sellers will so notify Purchaser in writing, which writing shall describe the
manner and time of transfer. The Parties agree that (i) the assets set forth on
Exhibit 5.3 will be transferred in the manner and by the time specified in Exhibit
5.3 and (ii) the Parties will bear the responsibility for, and costs of, carving out
certain systems as set forth on Exhibit 5.3. Any material assets that are used (but
not used exclusively) by the Group Companies shall be made available to the Group
Companies by Sellers and Sellers’ Affiliates on the same basis as they are currently
made available. The foregoing provisions shall apply mutatis mutandis to assets or
rights held by the Group Companies that are used by Seller or Sellers’ Affiliates.
The foregoing provisions do not apply to (i) assets or rights covered by Section 16
of the Share Purchase Agreement, (ii) assets or rights used, held for use or
intended to be used solely in the Excluded Jurisdictions set forth in Exhibit
14.1(b) to the Share Purchase Agreement (“Excluded Jurisdictions”) until the time of
and subject to the acquisition of the applicable Excluded Business, (iii) assets or
rights used, held for use or intended to be used in providing the services to be
provided in the Transitional Services Agreement and the “excluded services” set
forth in Exhibit 16.3 to the Share Purchase Agreement, except for the seat licenses
and servers identified on Exhibit 5.3, (iv) assets or rights provided pursuant to
the Brand License Agreement or (v) assets or rights 




9









 






	 	 	 	provided under supply or
distribution agreements that are the subject of Section 10.13.3 of the Share
Purchase Agreement. Except as set forth in Exhibit 14.1(a) of the Share Purchase
Agreement, as of and following the Effective Date the Group Companies shall have no
liabilities or obligations of any nature (whether accrued, absolute, contingent,
unasserted or otherwise) arising out of the operation or conduct of any business of
Sellers or Sellers’ Affiliates other than the Business.






	5.4	 	Agreements with Sellers’ Affiliates
	 
	 	 	Purchaser and Sellers’ Representative acknowledge that they have agreed that certain
agreements will be executed between Sellers’ Affiliates and the Group Companies as set forth
in Exhibit 5.4 and Purchaser (with respect to the Group Companies) and Sellers’
Representative (with respect to Sellers’ Affiliates) will procure that all agreements listed
in Exhibit 5.4 are executed within one month after the Closing Date.





6.

SETTLEMENT OF INTERCOMPANY BALANCES





	6.1	 	Conversion to Intercompany Balances
	 
	 	 	Sections 3.2, 3.3 and 3.4 of the Share Purchase Agreement set forth certain provisions
regarding the settlement and payment of (i) claims resulting from the Cash Management, (ii)
certain loans granted to, or funds deposited with, a Group Company by a Seller or Sellers’
Affiliate, and (iii) certain loans made by a Group Company to a Seller or Sellers’ Affiliate.
The Parties have agreed to settle all outstanding balances under these claims, loans or
deposits between a Group Company on the one side and a Seller or Sellers’ Affiliate on the
other side pursuant to the following settlement mechanism:






	 	6.1.1	 	Sellers and Sellers’ Representative shall procure, to the extent feasible or
expedient (which, e.g., is not feasible with respect to intra-group loans between South
African companies), that (i) all loans to, or deposits with, a Group Company by a Seller
or a Sellers’ Affiliate (“Shareholder Loans”), and (ii) all loans to, or deposits with,
a Seller or Sellers’ Affiliate by a Group Company (“Subsidiary Loans”), will be
converted into an intercompany balance between Sellers’ Representative and the
respective Group Company to be booked to the respective existing intercompany account
(together with any existing intercompany balances between Sellers’ Representative and a
Group Company, any remaining Shareholder Loans made by Sellers’ Representative and any
remaining Subsidiary Loan made to Sellers’ Representative, the “Merck Intercompany
Balances”).
	 
	 	6.1.2	 	Any Shareholder Loan made by a Sellers’ Affiliate other than Sellers’
Representative that remains outstanding on Closing shall be referred to as a




10









 






	 	 	 	“Merck Affiliate Loan”, and any Subsidiary Loan made to a Sellers’ Affiliate other than
Sellers’ Representative that remains outstanding on Closing, if any, shall be referred
to as a “Merck Affiliate Obligation”, and together with the Merck Affiliate Loans, the
“Affiliate Intercompany Balances”).
	 
	 	6.1.3	 	All Shareholder Loans to, and all Subsidiary Loans by, any of EMD Inc., Dey
Inc., Dey L.P., Dey L.P. Inc. and Genpharm LP, U.S.A. shall be referred to as “Merck US
Intercompany Balance” and “US Affiliate Intercompany Balances”, as applicable, and all
other Shareholder Loans and Subsidiary Loans shall be referred to as “Merck Non-US
Intercompany Balance” and “Non-US Affiliate Intercompany Balances”.






	6.2	 	Settlement between Sellers’ Representative and Purchaser






	 	6.2.1	 	Merck Intercompany Balances. All US Merck Intercompany Balances
outstanding on the Closing Date will be settled directly between Purchaser and Sellers’
Representative and all Non-US Merck Intercompany Balances outstanding on the Closing
Date will be settled directly between Mylan Luxembourg 2 and Sellers’ Representative as
follows:






	 	(a)	 	With respect to any Merck Intercompany Balance in favor of
Sellers’ Representative, Purchaser or Mylan Luxembourg 2, as applicable, shall
pay the respective balance on behalf of the respective Group Company; and
	 
	 	(b)	 	With respect to any Merck Intercompany Balance in favor of a
Group Company, Sellers’ Representative shall pay the respective balance to
Purchaser or Mylan Luxembourg 2, as applicable, as the collection agent of the
respective Group Company.






	 	6.2.2	 	Affiliate Intercompany Balances. All Affiliate US Intercompany Balances
on the Closing Date will be settled directly between Purchaser and Sellers’
Representative and all Affiliate Non-US Intercompany Balances outstanding on the Closing
Date will be settled directly between Mylan Luxembourg 2 and Sellers’ Representative as
follows:






	 	(a)	 	With respect to any Affiliate Intercompany Balance in favor of
a Sellers’ Affiliate, Purchaser or Mylan Luxembourg 2, as applicable, shall pay
the respective balance on behalf of the respective Group Company that owes the
Affiliate Intercompany Balance to Sellers’ Representative as collection agent
on behalf of the respective Sellers’ Affiliate; and
	 
	 	(b)	 	With respect to any Affiliate Intercompany Balance in favor of
a Group Company, Sellers’ Representative shall pay the respective balance on
behalf of the respective Sellers’ Affiliate that owes the Affiliate
Intercompany Balance to Purchaser or Mylan Luxembourg 2, 




11









 






	 	 	 	as applicable, as collection agent on behalf of the respective Group Company.






	 	6.2.3	 	Intercompany Settlement. The settlement of the Merck Intercompany
Balances and the Affiliate Intercompany Balances pursuant to Section 6.2.1 and 6.2.2
above shall be jointly referred to as the “Intercompany Settlement”. Sellers’
Representative will notify Purchaser, also on behalf of and as representative of Mylan
Luxembourg 2, at least one Business Day before the Closing Date of the payments to be
made by (i) Sellers’ Representative and (ii) Purchaser and Mylan Luxembourg 2,
respectively, to effect the Intercompany Settlement.
	 
	 	6.2.4	 	Payment Agent Agreement. (i) Purchaser or Mylan Luxembourg 2, as
applicable, (ii) Sellers’ Representative and (iii) the respective Group Companies,
Sellers and Sellers’ Affiliates (to be procured by Sellers’ Representative) shall
enter into payment agent agreements to document the payment arrangements and to
grant respective payment agency and collection agency authorities pursuant to
Section 6.2.1 and 6.2.2 above in substantially the form attached as Exhibit 6.2.4.
	 
	 	6.2.5	 	Continuance of Group Financing. Nothing in the Share Purchase Agreement
or this Amendment shall prevent Sellers, Sellers’ Affiliates or the Group Companies from
settling, or to creating in the ordinary course of business, any new, Merck Intercompany
Balances or Affiliate Intercompany Balances. Section 15.1 of the Share Purchase
Agreement remains unaffected.





7.

CLOSING DATE, ORDER OF CLOSING ACTIONS 

AND OTHER TRANSFER ACTIONS





	7.1	 	Closing Date
	 
	 	 	The Parties hereby confirm their current firm intent to take the Closing Actions on 2 October
2007.
	 
	7.2	 	Pre-Closing Actions






	 	7.2.1	 	Sellers shall cause MGG and Purchaser shall cause Mylan Canada, as applicable,
to consummate, unless otherwise agreed between the Parties, the Genius GmbH Transfer at
a time that (i) falls within the calendar day before the Closing Date by applying
Eastern Daylight Time and (ii) already falls within the Closing Date by applying Central
European (Summer) Time (e.g., at the Closing Date at 1:00 AM CET) by (i) execution of
the Genius GmbH SPA by MGG and Mylan Canada, (ii) delivery of the Genpharm Note by MGG
to Mylan Canada, and (iii) issue and delivery of the Genius GmbH Note by Mylan Canada to
MGG (the Parties acknowledge that the Genius GmbH 




12









 






	 	 	 	Transfer shall be subject to the terms
of and effected in accordance with the conditions set forth in the Genius GmbH SPA)
(these actions the “Pre-Closing Actions”).
	 
	 	7.2.2	 	For the avoidance of doubt, the obligations of the Parties to consummate the
Closing Actions on the Closing Date shall not be subject to the consummation of the
Pre-Closing Actions before the Closing Date but only subject to the satisfaction or
waiver of the Closing Conditions.






	7.3	 	Closing Actions






	 	7.3.1	 	On the Closing Date, the Parties shall take, or cause to be taken, the following
actions in the following order, or any other order mutually agreed between the
Parties; provided that (i) the Closing Actions pursuant to the following
sub-paragraphs (b) to (m) should be executed at the same time to the extent
practicably possible and (ii) that the individual actions with respect to the
Closing Actions under the following sub-paragraphs (b) to (m) shall be taken
simultaneously (Zug-um-Zug):






	 	(a)	 	Payments. Payment by Purchaser to Sellers of the
Preliminary Purchase Price;
	 
	 	(b)	 	Seller Certificates. Sellers shall deliver to
Purchaser executed certificates pursuant to Section 7.1.3 (a), (b) and (c) of
the Share Purchase Agreement;
	 
	 	(c)	 	Purchaser Certificates. Purchaser shall deliver to
Sellers’ Representative executed certificates pursuant to Section 7.1.2 (a) and
(b) of the Share Purchase Agreement;
	 
	 	(d)	 	Intercompany Settlement. Purchaser, Sellers’
Representative and Mylan Luxembourg 2 shall make the payments to effect the
Intercompany Settlement;
	 
	 	(e)	 	Dura Transfer. Seller 1 shall, and shall cause Dura
to, execute the Dura IP Transfer Agreement;
	 
	 	(f)	 	EpiPen Sale. Sellers shall cause EMD Chemicals to, and
Purchaser shall, execute the EpiPen Sale Agreement;
	 
	 	(g)	 	Brand License Agreement. Sellers’ Representative and
Purchaser shall enter into the Brand License Agreement in the form as attached
as Exhibit 7.3.1(g), which shall replace Exhibit 16.1.1 to the Share Purchase
Agreement;
	 
	 	(h)	 	Transitional Services Agreement. Sellers’
Representative and Purchaser shall enter into the Transitional Services
Agreement in the form attached as Exhibit 7.3.1(h), which shall replace Exhibit
8.3.14 




13









 






	 	 	 	of the Share Purchase Agreement
	 
	 	(i)	 	Alphapharm Transfer. Sellers shall cause MGG, and
Purchaser shall cause Mylan Australia, to execute the Alphapharm Transfer Form,
and Purchaser shall cause its wholly owned (indirect) subsidiary Mylan
Luxembourg 1 S.á.r.l to issue and deliver the Alphapharm Note to Mylan
Australia, and shall cause Mylan Australia to deliver the Alphapharm Note to
MGG;
	 
	 	(j)	 	Merck France Transfer. Sellers shall cause MGG, and
Purchaser shall
cause Mylan France, to execute the Merck France Transfer Order, and
Purchaser shall cause Mylan France to issue and deliver the Merck France
Notes to MGG;
	 
	 	(k)	 	Dura Transfer Deed. Purchaser shall cause Mylan
Luxembourg 2 to, and Mylan Luxembourg 2 shall, and Seller 1 shall, execute the
Dura Transfer Deed in notarial form;
	 
	 	(l)	 	Genericos Transfer Deed. Seller 3 and Purchaser shall
cause the execution of the Genericos Transfer Deed in notarial form in Spain by
representatives of Seller 3 and Mylan Luxembourg 2, respectively;
	 
	 	(m)	 	Merck Belgium Transfer Deed. Seller 3 shall, and
Purchaser shall cause Mylan Luxembourg 2 to, and Mylan Luxembourg 2 shall,
execute the Merck Belgium Transfer Deed;
	 
	 	(n)	 	EMD Transfer Deed. Seller 2 shall endorse the EMD
Shares to Mylan Holding, or endorse a respective stock transfer certificate,
and deliver the certificate(s) representing the EMD Shares to Mylan Holding;
	 
	 	(o)	 	MGG Transfer Deed. Seller 1, Purchaser and Mylan
Luxembourg 2 shall cause the execution of the MGG Transfer Deed in notarial
form in The Netherlands by representatives of Seller 1 and Mylan Luxembourg 2,
respectively; and
	 
	 	(p)	 	Resignation Letters. Sellers shall deliver resignation
letters of the Directors and Officers of the Group Companies who are remaining
Directors and Officers or Employees of Sellers or Sellers’ Affiliates.






	 	7.3.2	 	Obligations as to Actions on Closing Date. The actions set forth in
Section 7.3.1(a) to 7.3.1(p) shall replace the Closing Actions set forth in the Share
Purchase Agreement and be the Closing Actions. Sellers and Sellers’ Representative shall
not be obligated to take any of the actions set forth in Section 7.3.1(b) to 7.3.1(p)
before Sellers’ Representative has received the payment pursuant to Section 7.3.1(a).
The failure (including by way of inability) of any Party to perform any action required
by it under any of Sections 7.3.1(b) to 7.3.1(p) shall not relieve such Party or any of
its Affiliates to take any other action under Sections 7.3.1(b) to 7.3.1(p), provided,
that the 




14









 






	 	 	 	individual actions with respect to any Closing Action under the sub-paragraphs
(b) to (m) shall be taken simultaneously (Zug-um-Zug) by the Parties to such Closing
Action.
	 
	 	7.3.3	 	Waiver Rights of Purchaser. Purchaser may determine in its sole
discretion that any or all of the actions specified in 7.3.1(i) to 7.3.1(j) shall not be
taken on the Closing Date.






	7.4	 	Closing Confirmation
	 
	 	 	After all Closing Actions have been taken, Sellers and Purchaser shall confirm in writing
that all Closing Actions have been taken and that the Closing has occurred. This confirmation
shall be substantially in the form attached as Exhibit 7.4 instead of the form attached as
Exhibit 8.4 to the Share Purchase Agreement.
	 
	7.5	 	Director Resignations
	 
	 	 	If any Director and/or Officer of a Group Company who (i) remains an Employee of Sellers or
Sellers’ Affiliate and (ii) has taken all steps to resign as a Director and/or Officer and
has notified the Group Company of the resignation and accordingly resigns on or before the
Closing Date has not been properly discharged by the respective Group Company even though
such concept is acknowledged under applicable law, Purchaser shall procure that such
discharge is granted as soon as practical feasible or legally permissible (e.g., on the date
of the next meeting of shareholders). To the extent the resignations of any such Directors
and/or Officers require the filing of the resignation and/or additional documents with a
local register, Purchaser shall procure that such filing requirements are met.
	 
	7.6	 	Prasfarma
	 
	 	 	Sellers, Sellers’ Representative and Purchaser shall cooperate in good faith to identify and
implement a transitional solution in connection with the provision of transitional SAP
services to Prasfarma Oncologicos SL (the “Transitional Prasfarma Solution”) (it being
understood that the ultimate decision regarding the scope and provider of such solution shall
be made by mutual agreement of Sellers’ Representative and Purchaser, and that the Parties
will work together to achieve as economical a solution as possible). Sellers shall bear all
out-of-pocket costs and expenses incurred in connection with the Transitional Prasfarma
Solution by Sellers, Sellers’ Representative and Purchaser (including reasonable
out-of-pocket expenses for counsel), whether incurred prior to or after the Effective Date,
until such time as such costs and expenses in the aggregate are equal to EUR 600,000 (the
“Prasfarma Expense Cap”), after which Purchaser shall bear all such costs and expenses
(whether incurred by Sellers, Sellers’ Representative or Purchaser). Each party shall
maintain reasonably detailed documentation of all such costs and expenses incurred by it and
shall provide such documentation to the other party upon request. Any costs and expenses
incurred by either party in connection with the Transitional Prasfarma Solution that are
subject to reimbursement by the other party 




15









 






	 	 	pursuant to this Section 7.6 shall be reimbursed
promptly by the other party following presentation of reasonable documentation of such costs
and expenses by the party seeking reimbursement.





8.

PURCHASE PRICE AND EFFECTIVE DATE





	8.1	 	No Effect on Purchase Price






	 	8.1.1	 	Effective Date Financial Statements. Any effects in connection with any
New Transfer on the Effective Date Financial Statements shall be disregarded for
purposes of calculating the Purchase Price under the Share Purchase Agreement, in
particular if any of the New Transfers occurred, or any actions in connection with the
New Transfers were taken, on or before the Effective Date. The Purchase Price shall be
calculated as if none of the New Transfers has occurred, or no action in connection with
the New Transfer was taken, on or before the Effective Date.
	 
	 	8.1.2	 	Promissory Notes. The amount and value of the Genius GmbH Note, the
Genpharm Note, the Alphapharm Note and the Merck France Note shall be solely determined
by Purchaser but may not contravene, or conflict with, the Purchase Price allocation
under the Share Purchase Agreement, in particular as set forth in Exhibit 4.1.4 to the
Share Purchase Agreement.
	 
	 	8.1.3	 	Purchase Price Allocation. The Purchase Price agreed between the
Parties under the Share Purchase Agreement for the sale of the Companies and the
Transfer of the Trademarks EpiPen, Duranifin and Enadura, including the Purchase Price
allocation under the Share Purchase Agreement, in particular as set forth in Exhibit
4.1.4 to the Share Purchase Agreement, shall remain unaffected by the New Transfers and
in particular (i) the consideration paid for the Genius GmbH Transfer, the Alphapharm
Transfer and the Merck France Transfer, and (ii) the amount and value of the Genius GmbH
Note, the Genpharm Note, the Alphapharm Note and the Merck France Note, which are not
part of the agreement between Sellers and Purchaser with respect to the Purchase Price
and the allocation of the Purchase Price under Exhibit 4.1.4 to the Share Purchase
Agreement. The adjustment of the Purchase Price allocated to the sale and transfer of
the Dura Share as a result of the execution of the Dura IP Transfer Agreement pursuant
to Section 5.2 remains unaffected.






	8.2	 	Effective Date






	 	8.2.1	 	Clarification as to Section 8.1.1. The Parties hereby clarify that the
“Effective Date” as defined in the Share Purchase Agreement shall, in case Section 8.1.1
(a) of the Share Purchase Agreement is applicable and the Closing Date determined by
application of Section 8.1.1 (a) of the Share Purchase Agreement is not a Business Day,
be nonetheless the last calendar day of the 




16









 






	 	 	 	applicable month, i.e., in such case only
the Closing Date but not the Effective Date following shall be the next Business Day
following the day determined by application of Section 8.1.1 (a) of the Share Purchase
Agreement.
	 
	 	8.2.2	 	Clarification of Section 4.1. The Parties hereby clarify that the
reference to “with economic effect as of the Effective Date” contained in Section 3.1.1
of the Share Purchase Agreement shall only mean that the Purchase Price is determined on
such date in accordance with Sections 4 and 5 of the Share Purchase Agreement.






	8.3	 	Exchange Rates
	 
	 	 	For purposes of preparing the Effective Date Financial Statements and the Final Purchase
Price Statement, any assets and liabilities (including any adjustments thereof) denominated
in a currency other than EUR shall be converted into EUR on the basis of the exchange rate as
of the Effective Date as used for the quarterly financial statements of Merck KGaA.





9.

INDEMNIFICATION AND COSTS





	9.1	 	Indemnification






	 	9.1.1	 	Tax Indemnification. Purchaser shall fully indemnify and hold harmless
(freistellen) Sellers and Sellers’ Affiliates for any incremental income, withholding,
sales, transfer or other Tax liability of Sellers or Sellers’ Affiliates in connection
with any New Transfer to the extent any such New Transfer increases the Tax liability of
Sellers or Sellers’ Affiliates above the amount of Taxes to be borne by Sellers or
Sellers’ Affiliates in connection with the sales and transfers set forth in Section 3.1
of the Share Purchase Agreement.
	 
	 	9.1.2	 	No Indemnification by Sellers. Sellers and Sellers’ Representative
shall not be liable for, and shall not have to indemnify and hold harmless Purchaser or
any Group Company for, and Section 12 of the Share Purchase Agreement shall not apply
to, any incremental Taxes for any Pre-Effective Date Period resulting from any New
Transfer in accordance with this Amendment.
	 
	 	9.1.3	 	No Responsibility of Sellers. Any actions, results, effects and
transactions contemplated by, or taken in connection with, this Amendment, in particular
the New Transfers, in amendment of the transaction structure under Section 3.1 of the
Share Purchase Agreement shall be entirely and exclusively Purchasers’ responsibility
and risk. Sellers, Sellers’ Representatives, Sellers’ Affiliates and the Group Companies
do not make any representations and warranties in connection with any actions, results,
effects and transactions contemplated by, or taken in connection with, this Amendment or
any other 




17









 






	 	 	 	plans, discussions or considerations of Purchaser to amend the transaction
structure, and shall not be liable for any Taxes, costs, losses, expenses and other
disadvantages of Purchaser or the failure to achieve any results or effects desired by
Purchaser. Any actions and transactions that were not part of
Section 3.1 of the Share Purchase Agreement, in particular any New Transfer, and any
situation, results or effects resulting therefrom, shall be disregarded for purposes
of Section 9 of the Share Purchase Agreement.
	 
	 	9.1.4	 	Costs (other than Taxes). All incremental costs and expenses (including
court and filing fees or similar charges and reasonable out of pocket expenses for
counsel) (other than Taxes) incurred by Sellers or Sellers’ Affiliates in connection
with the implementation of any New Transfers or the implementation of any other actions
and changes contemplated by this Amendment, or any other changes or alternatives to the
transaction structure considered by Purchaser and proposed in writing (including by way
of e-mail) prior to the Closing Date to Seller or Sellers’ Affiliate, shall be borne by
Purchaser and reimbursed to Sellers or Sellers’ Affiliates upon demand. The notarial
fees for the notarization of this Amendment and all transfer deeds and other deeds
hereunder as well as any costs, fees and expenses relating to any regulatory or
administrative filings in connection with the New Transfers shall be borne by Purchaser.
	 
	 	9.1.5	 	No Closing. In the event that Purchaser or any Affiliate of Purchaser
shall not have performed any Closing Actions required to be performed by it on the
Closing Date unless (i) Purchaser was not required to perform such Closing Action
pursuant to Section 7.1.3 of the Share Purchase Agreement or (ii) Purchaser or its
Affiliates were not required to take the steps required by them under the respective
missing Closing Action because Sellers or Sellers Affiliate failed to take the steps
required by them under the same Closing Action, and as consequence thereof Closing has
not occurred prior to the expiry of 270 days after the Signing Date (the “Outside
Date”), then Purchaser shall further fully indemnify and hold harmless (freistellen)
Sellers, Sellers’ Affiliates and the Group Companies, as well as Allgemeine
Beteiligungsgesellschaft Genius Deutschland GmbH, for any Taxes, costs, losses, expenses
and other quantifiable disadvantages resulting from any New Transfer on, before or after
the Closing Date, including any actions, events or circumstances in connection with the
unwinding of any New Transfer within one month after the earlier of (A) the date on
which either Purchaser shall notify Sellers’ Representative, or Sellers’ Representative
shall notify Purchaser, respectively, in writing of its intention not to consummate the
Closing and (B) the Outside Date. The unwinding of any New Transfers shall be done in a
manner and at a time to be determined at Sellers’ and Sellers’ Representatives sole
discretion. Sellers and Sellers’ Affiliates shall be under a general obligation in
accordance with Section 254 of the German Civil Code (BGB) and shall use their best
efforts to mitigate the amount of any damages of Purchaser or its Affiliates under this
indemnity.










18









 











10.

MISCELLANEOUS





	10.1	 	Notices
	 
	 	 	Section 19 of the Share Purchase Agreement shall apply mutatis mutandis to this Amendment.
	 
	10.2	 	Severability
	 
	 	 	The invalidity of any provision (or parts thereof) of this Amendment shall not affect the
validity of any other provision hereof, and the invalid provision shall be deemed to be
replaced by a valid provision coming closest in its commercial effect to the invalid
provision. The foregoing shall also apply to unenforceable provisions and to matters as to
which this Amendment is silent. If a provision of this Amendment should be held invalid by a
competent court or an arbitration tribunal because of the scope of its coverage (such as
territory, subject matter, time, period or amount), such provision shall not be deemed to be
completely invalid but shall be deemed to be valid with the permissible scope that is nearest
to the originally agreed-upon scope.
	 
	10.3	 	Exhibits
	 
	 	 	All Exhibits to this Amendment constitute a part of this Amendment. In the event of a
conflict between any Exhibit and the provisions of this Amendment, the provisions of this
Amendment shall prevail.
	 
	10.4	 	Amendments
	 
	 	 	Any amendments to this Amendment (including amendments to this clause) shall be valid only if
made in writing, unless another form is required by mandatory law.
	 
	10.5	 	Governing Law
	 
	 	 	This Amendment shall be governed by, and be construed in accordance with, the laws of the
Federal Republic of Germany, without regard to principles of conflicts of laws.
	 
	10.6	 	Arbitration
	 
	 	 	Section 21.7 of the Share Purchase Agreement shall apply mutatis mutandis to any dispute,
controversy or claim arising out of or in connection with this Amendment, including any
question regarding its existence, validity, or termination






19