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<PAGE>
Exhibit 10.1
PORTIONS OF THIS EXHIBIT INDICATED BY "******" HAVE BEEN OMITTED
PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE
SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED, AND THE OMITTED MATERIAL HAS BEEN
SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION
AMENDMENT TO SHARE AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO SHARE AND ASSET PURCHASE AGREEMENT (this
"Amendment"), dated as of August 22, 2006, is entered into by and
between
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SOLUTIA EUROPE S.A./N.V., a Belgian corporation (societe
anonyme/naamloze
vennootschap) (the "Seller") and DISHMAN PHARMACEUTICALS &
CHEMICALS LIMITED,
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a company organized under the laws of the Republic of India (the
"Buyer").
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WHEREAS, the Seller and the Buyer have entered into that
certain
Share and Asset Purchase Agreement dated as of May 23, 2006 (the
"Purchase
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Agreement") pursuant to which the Buyer has agreed to purchase the
outstanding
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shares of capital stock of Amcis AG ("Amcis") and CarboGen AG
("CarboGen") and
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certain other assets of the Seller and its Affiliates;
WHEREAS, as contemplated in Section 5.4(e) of the Purchase
Agreement
CarboGen merged into Amcis with the surviving entity being CARBOGEN
AMCIS AG;
and
WHEREAS, the parties hereto desire to amend the Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and
the
covenants, representations and warranties set forth herein, and for
other good
and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged and accepted; the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used herein without
definition
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shall have their respective meanings assigned in the Purchase
Agreement.
2. NEW DEFINITIONS. Section 1.1 of the Purchase Agreement is
hereby
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amended by adding the following new definitions in their proper
alphabetical
order:
"CarboGen Amcis" means CARBOGEN AMCIS AG, a company
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organized under the laws of Switzerland and a
successor-in-interest (by merger) to CarboGen and Amcis.
"Effective Time" means 00:01 a.m. on August 1, 2006
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in Brussels, Belgium.
"Interim Period" means a period commencing at the
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Effective Time and ending at the Closing Time.
"Reimbursement Costs" means the following (without
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duplication):
(i) all liabilities incurred with
respect to any Transferred
Employee, any person who would
have been a Transferred Employee
if the Closing had occurred at
the Effective Time and Specified
Employee who is employed after
the Effective Time (collectively,
the "Employees"), such
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liabilities to include, without
limitation, salary and
<PAGE>
other cash compensation, income
and employment tax withholdings,
the cost of all employee benefits
(including, without limitation,
matching and other employer
contributions to any retirement
plan, severance benefits, the
costs of providing health and
other welfare benefits, and
fringe benefits), automobile
allowances, business expenses
(including travel expenses),
liabilities incurred under any
labor or employment law, workers'
compensation costs, and the
proportional share of office
expenses (as reasonably
determined by the Seller), in
each case incurred by Seller or
any of its Affiliates (other than
CarboGen Amcis) with respect to
the Employees with respect to the
Interim Period;
(ii) the aggregate amount to be paid
by Seller and its affiliates
(other than CarboGen Amcis)
pursuant to Section 5.11(h);
(iii) the aggregate amount of the Fees
(as defined in the Transition
Services Agreement) that would
have been payable pursuant to the
Transition Services Agreement
with respect to the Interim
Period had the Seller commenced
provision of Services (as defined
therein) thereunder on August 1,
2006;
(iv) all amounts paid or payable by
Seller or any of its Affiliates
(other than CarboGen Amcis) with
respect to any Assumed Contract
(including Microsoft Licenses and
licenses with Saratoga, in each
case that are Transferred Assets)
and other Transferred Assets with
respect to the Interim Period;
(v) $7,155.52, which amount
represents the pro rata amount
paid by Seller and its Affiliates
with respect to licenses pursuant
to certain Oracle License and
Services Agreement between Oracle
Corporate and SOI, dated as of
May 10, 2004 that are Transferred
Assets with respect to the period
from August 1, 2006 through May
12, 2007;
(vi) a portion of insurance premiums
paid by Seller and its Affiliates
(other than CarboGen Amcis) with
respect to insurance policies
applicable to CarboGen Amcis
during the period from August 1,
2006 through August 22, 2006; and
(vii) all other expenses (including
capital investment) of the Seller
or any of its Affiliates incurred
with respect to the
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Interim Period with respect to
the Shares, the Business, the
Transferred Assets, the US
Business and Employees
"****** Specified Employee" means ****** set forth
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in Part II of Schedule 1.5 of the Disclosure Schedule.
"UK Specified Employees" means the individuals set
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forth in Part I of Schedule 1.5 of the Disclosure Schedule.
"US Business" means the business of SOI consisting
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solely of the services to be performed by US Business
Employees, the employment agreements of such US Business
Employees and the assets held by or in the name of SOI set
forth in Schedule 1.3 of the Disclosure Schedule.
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3. NEW DEFINITIONAL CROSS REFERENCES. Section 1.2 of the
Purchase
---------------------------------
Agreement is hereby amended by adding the following
cross-references for
definitions in their proper alphabetical order:
<TABLE>
<C> <C>
Additional Dividend Amount 2.5(b)(i)(A)
Cash Dividend Amount 5.4(b)
CS Loan Agreement 5.4(c)
Effective Time Cash Balance 5.4(b)
Employee 1.1
Estimated Reimbursement Costs 2.4(f)(i)
Final Reimbursement Costs 2.4(f)(ii)
Social Security Payment 5.11(a)(iv)
</TABLE>
4. CLOSING TIME. The definition of "Closing Time" in Section 1.1
of
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the Purchase Agreement is hereby amended and restated in its
entirety to read
as follows:
"Closing Time" means 00:01 a.m. on the Closing Date
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in Brussels, Belgium.
5. FINAL WORKING CAPITAL STATEMENT. The definition of "Final
Working
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Capital Statement" in Section 1.1 of the Purchase Agreement is
hereby amended
and restated in its entirety as follows:
"Final Working Capital Statement" means the net
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working capital statement that sets forth the Working
Capital as of the Effective Time, prepared by the Seller in
accordance with Section 2.4(b) and, in the event of a Notice
of
<PAGE>
Disagreement, as adjusted by agreement of the Buyer and the
Seller, or by the Independent Accounting Firm, acting
pursuant to Section 2.4(c).
6. MICROSOFT LICENSES. The definition of "Microsoft Licenses"
in
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Section 1.1 of the Purchase Agreement is hereby amended and
restated in its
entirety as follows:
"Microsoft Licenses" means the license
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confirmations (and the following licenses described therein)
held by SOI and its Affiliates pursuant to the Microsoft
Enterprise Agreement, Number OIE50326 between SOI and MLSI,
GP, dated December 5, 2000, in each case to the extent such
licenses are used in the Business: (i) 390 Microsoft Desktop
Professional Licenses, (ii) 6 Microsoft Windows Server
Licenses, and (iii) 3 Microsoft Exchange Server Enterprise
licenses.
7. PRE-CLOSING WORKING CAPITAL STATEMENT. The definition of
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"Pre-Closing Working Capital Statement" in Section 1.1 of the
Purchase
Agreement is hereby amended and restated in its entirety as
follows:
"Pre-Closing Working Capital Statement" means the
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net working capital statement that sets forth the Seller's
estimate of the Working Capital as of the Effective Time,
prepared by the Seller in accordance with Section 2.4(a).
8. WORKING CAPITAL. The definition of "Working Capital" in
Section
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1.1 of the Purchase Agreement is hereby amended by (i) deleting the
word "and"
after clause (iii) hereof and (ii) adding the following new clause
(v) after
clause (iv) thereof:
and (v) any payables or accruals in connection with the
Social Security Payment by CarboGen Amcis described in the
second to last sentence of Section 5.11(a)(vi).
9. AUSTRALIAN CONTRACTS. The Purchase Agreement is hereby amended
by
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adding the following new Section 2.2(d) after Section 2.2(c) of the
Purchase
Agreement:
(d) notwithstanding the foregoing, the
Australian Contracts that are Transferred Assets shall be
sold, transferred and assigned to CarboGen Amcis prior to
the Closing and CarboGen Amcis shall assume and agree to
pay, perform and discharge all Assumed Liabilities with
respect to such Transferred Assets. From and after the
Closing the Buyer shall cause CarboGen Amcis to pay, perform
and discharge such Assumed Liabilities.
10. SECTION 2.2(b). Section 2.2(b) of the Purchase Agreement is
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hereby amended and restated as follows:
(b) subject to requirements of Section
5.11, the Buyer shall, and shall cause its applicable
Affiliates to, assume and shall, and shall cause such
Affiliates to, agree to pay, perform and discharge all
liabilities and obligations (whether accrued or fixed,
absolute or contingent, mature or unmatured or determined or
determinable) (the "Liabilities") arising after the
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Effective Time
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with respect to the Transferred Assets, other than (i) with
respect to Assumed Contracts that are not employment
agreements, liabilities that result from any breach by the
Seller or its Affiliates of such Assumed Contracts prior to
the Effective Time, and (ii) with respect to Assumed
Contracts that are employment agreements, liabilities, if
any, retained by the Seller or any of its Affiliates
pursuant to Section 5.11 and not required to be indemnified
by the Buyer pursuant to Section 6.03 (such Liabilities with
respect to the Transferred Assets to be assumed by the Buyer
pursuant to this Section 2.2(b), the "Assumed Liabilities");
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11. SECTION 2.4. Section 2.4 of the Purchase Agreement is
hereby
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amended as follows:
(a) The heading to Section 2.4 is hereby amended and
restated as follows:
"Working Capital Adjustment/Reimbursement Costs."
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(b) Section 2.4(a) of the Purchase Agreement is hereby
amended by deleting the reference to "five Business Days" in
the
first sentence thereof and replacing such reference with a
reference
to "two Business Days".
(c) Section 2.4 of the Purchase Agreement is hereby amended
by inserting the following new Section 2.4(f) after the
existing
Section 2.4(e):
(f) Reimbursement Costs.
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(i) No later than two Business Days prior
to the Closing, the Seller shall prepare and
deliver to the Buyer a good faith estimate of the
Reimbursement Costs that have not been reimbursed
by the Buyer or its Affiliates (including CarboGen
Amcis) to Seller or its Affiliates (other than
CarboGen Amcis) prior to Closing (the "Estimated
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Reimbursement Costs").
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(ii) Within thirty (30) days following the
Closing Date, the Seller shall deliver to the Buyer
an invoice setting forth the actual Reimbursement
Costs and documentations reasonably evidencing such
Reimbursement Costs that have not been reimbursed
by the Buyer or its Affiliates (including CarboGen
Amcis) to Seller or its Affiliates (other than
CarboGen Amcis) (the "Final Reimbursement Costs").
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(iii) Within seven (7) Business Days after
receipt of the Final Reimbursement Costs, the
following amounts, if any, shall be paid by wire
transfer of U.S. Dollars in immediately available
funds to such account or accounts as may be
designated in writing by the party hereto entitled
to such payment at least five Business Days prior
to such payment date:
(A) if the Final Reimbursement
Costs exceed the Estimated Reimbursement
Costs, the Buyer shall pay to the Seller
an amount equal to such excess; and
<PAGE>
(B) if the Estimated Reimbursement
Costs exceed the Final Reimbursement
Costs, the Seller shall pay to the Buyer
an amount equal to such excess.
(iv) All amounts to be paid pursuant to
Section 2.4(f)(iii) shall bear interest from the
Closing Date to the date of such payment at a rate
equal to LIBOR Rate on the date of payment, which
interest shall be payable by wire transfer of U.S.
Dollars by the party making the payment pursuant to
Section 2.4(f)(iii) concurrently with such payment.
(v) In the event there is any dispute
between the Seller and the Buyer with respect to
the Final Reimbursement Costs and such dispute is
not resolved within seven (7) days after the
delivery by Seller of the Final Reimbursement Costs
pursuant to Section 2.4(f)(ii), such dispute shall
be resolved by the Independent Accounting Firm as
set forth in Section 2.4(c) as if the amount in
dispute was the Final Working Capital Value and
payments to be made, if any, pursuant to Section
2.4(f)(iii), notwithstanding any provision to the
contrary in Section 2.4(f)(iii), shall be made
within three Business Days after the final
resolution of all such disputes.
12. SECTION 2.5(a). Section 2.5(a) of the Purchase Agreement is
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hereby amended by deleting the words "Gibson, Dunn & Crutcher
LLP, 47 Avenue
des Perdix, 1410 Waterloo, Brussels, Belgium" and adding the words
"Gibson,
Dunn & Crutcher LLP, Avenue Louise 480, 1050 Brussels, Belgium,
Brussels,
Belgium" in lieu thereof.
13. SECTION 2.5(b)(i). Section 2.5(b)(i) of the Purchase Agreement
is
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