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EXHIBIT 10.2
AMENDMENT NO. 3 TO STOCK AND ASSET PURCHASE AGREEMENT
This Amendment
No. 3 (this "Amendment") to the Stock and Asset Purchase
Agreement, dated as of October 17, 2005
(the "Agreement"), by and among Actavis
Group hf., a corporation organized under
the laws of Iceland ("Buyer"), Alpharma
Inc., a Delaware corporation ("Seller"),
Alpharma Bermuda G.P., a Bermuda
general partnership ("Alpharma Bermuda"),
Alpharma (Luxembourg) S.a.r.l., a
company organized under the laws of
Luxembourg ("Alpharma S.a.r.l."), Cox
Investments Limited, a company organized
under the laws of the United Kingdom
("Cox Investments"), Barre Parent
Corporation, a Delaware corporation ("Barre"),
Purepac Pharmaceutical Holdings, Inc., a
Delaware corporation ("Purepac
Holdings"), Alpharma U.S. Inc., a Delaware
corporation ("Alpharma U.S."),
Alpharma (U.K.) Limited, a company
organized under the laws of the United
Kingdom ("Alpharma U.K."), Alpha-Lux
Investments S.a.r.l., a company organized
under the laws of Luxembourg ("Alpharma
Luxembourg"), Alpharma ApS, a company
organized under the laws of Denmark
("Alpharma Denmark"), Alpharma Holding,
Inc., a Delaware corporation ("Alpharma
Holding" and, collectively with Seller,
Barre, Purepac Holdings, Alpharma U.S.,
Alpharma Luxembourg and Alpharma
Denmark, the "Share Sellers"), and Alpharma
AS, a company organized under the
laws of Norway ("Alpharma Norway" and,
collectively with Alpharma Denmark and
Alpharma Luxembourg, the "Asset Sellers"
and, collectively, with Buyer, Seller
and the Share Sellers, the "Parties"), as
amended by the letter agreements
between Buyer and Seller dated as of
October 17, 2005 ("Amendment No. 1") and
November 23, 2005 ("Amendment No. 2"), is
entered into as of December __, 2005
by and among the Parties.
The Parties
desire to amend the Agreement as provided herein.
Now, therefore,
in consideration of the premises and the mutual promises
herein made, and in consideration of the
representations, warranties, and
covenants herein contained, the Parties
agree as follows.
Amendments to
the Agreement
Amendments to
Section 1 of the Agreement
The following definitions are hereby added to Section 1 of the
Agreement:
"Alpharma-Isis"
means Alpharma-Isis GmbH & Co. KG, a partnership organized
under the laws of Germany.
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"Bermuda Note"
means that certain promissory note dated as of December 19,
2003 issued by Alpharma Bermuda, as
borrower, to Alpharma-Isis, as lender, for a
principal outstanding amount of
E25,000,000, plus accrued interest, as
amended, supplemented or modified and as in
effect as of the date of this
Agreement.
"Initial German
Loan" means the loan provided by Alpharma Bermuda to
Alpharma-Isis pursuant to the Loan
Agreement dated 30 June 2000, as amended on 1
June 2003, with a principal amount of
E134,697,967.17 and accrued but
unpaid interest of E14,390,753.72.
"Retained German
Loan" means that portion (with a principal amount of
E27,136,569.86 and accrued but unpaid
interest of E2,899,195.01) of
the Initial German Loan to be held by
Alpharma Bermuda following Closing, which
portion shall no longer bear interest.
The following definitions set forth in Section 1 of the Agreement
are
hereby amended
in their entirety to read as follows:
"Assumed
Liabilities" means (a) all liabilities and obligations of
Seller
with respect to guarantees by Seller of any
letters of credit and acceptances
(or instruments serving a similar function)
issued or created for the account of
the Business, (b) all liabilities and
obligations of Alpharma Bermuda under the
Bermuda Note and (c) all of the liabilities
and obligations of the Asset Sellers
related to the Business (whether known or
unknown, whether asserted or
unasserted, whether absolute or contingent,
whether accrued or unaccrued,
whether liquidated or unliquidated, and
whether due or to become due), as
described in Annex III attached hereto or
as reflected on the Closing Date Pro
Forma Balance Sheet, including (i) all
liabilities of the Asset Sellers for
unpaid Non-Income Taxes of the Asset
Sellers relating to the Business for any
Pre-Closing Period, but only to the extent
such Tax liabilities do not exceed
the reserve for Non-Income Tax liabilities
included in the Closing Date Pro
Forma Balance Sheet, (ii) all liabilities
and obligations of the Asset Sellers
under the agreements, contracts, leases,
licenses, and other arrangements
related to the Business and assigned to
Buyer in accordance with the terms of
this Agreement, (iii) all liabilities and
obligations of the Asset Sellers
related to the Employees of the Business
and former employees of the Business
employed by or formerly employed by the
Asset Sellers to the extent expressly
assumed under Section 6(f) below, (iv) all
liabilities arising out of any
personal injury and/or death or damage to
property relating to or arising in
connection with the Products marketed,
distributed, sold or otherwise provided
by, or on behalf of, any of the Asset
Sellers, except to the extent Insurance
responds to any claims with respect to such
liabilities that arise prior to the
Closing, (v) all liabilities and
obligations of the Asset Sellers with respect
to any letters of credit and acceptances
(or instruments serving a similar
function) issued or created for the account
of the Business, and (vi) all
liabilities relating to the Pfizer
Litigation; provided, however, that the
Assumed Liabilities shall not include (x)
any Excluded Liabilities,
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(y) any Retained Liabilities or (z) any
liability or obligation of any of the
Sellers under this Agreement (or under any
side agreement between any of the
Sellers on the one hand and Buyer on the
other hand entered into on or after the
date of this Agreement).
"Current
Liabilities" means the sum of the dollar amounts reflected on
the
Target Pro Forma Balance Sheet and the
Closing Date Pro Forma Balance Sheet,
respectively, for accounts payable and
accrued expenses and other items that
would be classified as "current
liabilities" in accordance with GAAP; provided,
however, that accruals with respect to
Income Taxes for any Pre-Closing Period,
Intercompany Payables, the Bermuda Note,
Bonus Obligations, and any Retention
Arrangements shall be excluded from such
sum.
"German Loan"
means a portion (with a principal amount of
E107,561,397.31 and accrued but unpaid
interest of E11,491,558.71) of
the Initial German Loan to be held assigned
to Buyer at Closing
"Intercompany
Payables" means obligations owed by an Asset Seller or a
Target Company or any Target Subsidiary to
Seller or any of its Affiliates,
other than the German Loan, the Retained
German Loan and the U.K. Note.
"U.K. Note"
means that certain promissory note, dated as of January 1,
2004, issued by Alpharma Holdings Limited,
as borrower, to Alpharma S.a.r.l., as
lender, for a principal outstanding amount
of L 48,196,732.00, and any
promissory notes or loans issued in respect
of interest accrued thereon, as
amended, supplemented or modified and as in
effect as of the date of this
Agreement.
Subclause (h) of the definition of "Retained Liabilities" set forth
in
Section 1 of the
Agreement is hereby amended in its entirety to read as
follows: "(h)
any Indebtedness of any of the Target Companies or their
Subsidiaries
other than the U.K. Note, the German Loan and the German
Retained
Loan,".
Amendments to
Section 2 of the Agreement
Section 2(b)(i) of the Agreement is hereby amended in its entirety
to
read as
follows:
"(i) Subject to Section 2(c), Buyer agrees to pay to Seller, the
Asset
Sellers, the
Share Sellers and the Note Sellers, at the Closing, in such
amounts and to
such accounts as Seller shall direct (subject to the
Allocation
Schedule attached to the Agreement), an amount equal to
$810,000,000 in
the aggregate (the "Preliminary Purchase Price"), by
delivery of cash
payable by wire transfer or delivery of other
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immediately
available funds. The Preliminary Cash Purchase Price shall be
subject to
post-Closing adjustment as set forth below in Sections 2(f) and
2(i)."
Section 2(c) shall be amended by the addition of the following at
the
end of Section
2(c):
"Notwithstanding
any other provision of this Agreement to the contrary, in
the event that the Parties agree that the
Closing shall occur prior to the
receipt of all necessary anti-trust
approvals, authorizations or consents, or
the expiry of the applicable waiting
period, in each case in Portugal, then (i)
at the Closing:
(A) the
Preliminary Purchase Price shall be reduced by $3,000,000,
(B) the Acquired
Assets shall exclude any Acquired Assets relating to the
Business in Portugal,
(C) the Assumed
Liabilities shall exclude any Assumed Liabilities relating
to the Business in Portugal,
and (ii) within
two business days following the receipt of all necessary
anti-trust approvals, authorizations or
consents, or the expiry of the
applicable waiting period, in each case in
Portugal:
(A) Buyer shall
pay to the applicable Asset Seller(s) (or an Affiliate of
Seller, as Seller shall direct) an a
