Exhibit 10.4
Fresenius SE
61346 Bad Homburg v.d.H.
July 6, 2008
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To:
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Fresenius Kabi
Pharmaceuticals Holding, LLC
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Ladies and Gentlemen:
1. Reference is made to the
Agreement and Plan of Merger, dated as of July 6, 2008 (as it
may be amended from time to time, the “ Merger
Agreement ”), by and among Fresenius SE, a societas
europaea organized under the laws of Germany (“
Parent ”); Fresenius Kabi Pharmaceuticals Holding,
LLC, a Delaware limited liability company and an indirect,
wholly-owned subsidiary of Parent (“ Holdco ”);
Fresenius Kabi Pharmaceuticals, LLC, a Delaware limited liability
company and a direct, wholly-owned subsidiary of Holdco (“
Merger Sub ”); and APP Pharmaceuticals, Inc., a
Delaware corporation (the “ Company ”) pursuant
to which Parent will acquire the Company by merging Merger Sub with
and into the Company (the “ Merger ”).
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Merger Agreement or the CVR Indenture (as
defined in the Merger Agreement). This letter is being delivered to
Holdco in connection with the execution of the Merger Agreement by
Parent, Holdco, Merger Sub and the Company.
2. This letter confirms the
undersigned’s commitment, subject to the condition set forth
herein, to make an equity contribution to Holdco, in cash in an
amount equal to the aggregate amount of cash to be paid to the
Holders of CVRs in accordance with the terms of the CVR Indenture (
the “ Commitment ”). The undersigned shall not,
under any circumstances, be obligated under this Agreement to
contribute to Holdco more than the Commitment. Parent shall be
obligated to make the contribution to the extent that Holdco
becomes obligated to make a payment under the CVR Indenture but
Holdco does not have sufficient funds and/or debt capacity to cover
such payment.
3. Parent agrees that, for so long
as any CVRs are outstanding, Holdco and its subsidiaries will be
the primary entities through which Parent and its Affiliates (other
than Fresenius Medical Care AG & Co. KGaA and its
subsidiaries) will engage in the business of developing,
in-licensing, manufacturing, selling, marketing and distributing
injectable generic pharmaceutical products in the United States.
For the avoidance of doubt, this provision shall not apply to
Fresenius Medical Care AG & Co. KGaA and its subsidiaries
and shall not prohibit Parent from acquiring entities that engage
in the business of developing, in-licensing, manufacturing,
selling, marketing and distributing injectable generic
pharmaceutical products in the United States, so long as such
business is not the primary business of such acquired
entity.
4. Parent agrees that, for so long
as any CVRs are outstanding, Parent shall not take or permit to be
taken any of the following actions:
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(a)
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the voluntary
liquidation, dissolution o
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