Exhibit 10.1
Execution Version
Dated as of September 17,
2009
TERMINATION AGREEMENT
in connection with the Master
Merial Venture Agreement
MERCK
& CO., INC.
and
MERCK
SH INC.
and
MERCK
SHARP & DOHME (HOLDINGS) LIMITED
and
SANOFI-AVENTIS
and
SANOFI 4
and
MERIAL LIMITED
Termination
Agreement , dated as of
September 17, 2009, among:
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(1)
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Merck &
Co., Inc., a corporation
organized under the laws of New Jersey (“ Merck
”);
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(2)
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Merck SH
Inc. , a corporation
organized under the laws of Delaware (“ US Holding
”);
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(3)
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Merck Sharp
& Dohme (Holdings) Limited , a limited company organized under the laws of
England and Wales (“ UK Holding ”);
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(4)
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Sanofi-Aventis , a société anonyme
organized under the laws of France (“ Sanofi-Aventis
”);
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(5)
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Sanofi
4 , a
société en nom collectif organized under the laws
of France (“ Sanofi-Aventis Holding
”);
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(6)
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Merial
Limited , a private
company limited by shares organized under the laws of England and
Wales and domesticated in the State of Delaware as Merial LLC, a
limited liability company (“ Merial
”).
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(Merck, US
Holding, UK Holding, Sanofi-Aventis, Sanofi-Aventis Holding and
Merial are hereinafter referred to individually as a “
Party ” and collectively as the “ Parties
”).
WHEREAS
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(A)
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Merck and
Rhône-Poulenc S.A., a société anonyme
organized under the laws of France (“
Rhône-Poulenc ”), entered into that certain
Joint Venture Agreement, dated May 23, 1997 (as it may have been
amended from time to time prior to the date hereof, the “
JV Agreement ”), in order to combine their respective
animal health and poultry genetics businesses. In order to effect
this combination, Merck and Rhône-Poulenc created Merial as
the parent company of the group of companies conducting these
businesses. Rhône-Poulenc changed its name to Aventis and was
merged into Sanofi-Aventis on December 31, 2004;
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(B)
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Each of Merck
and Sanofi-Aventis owns indirectly 50% of the equity interests in
Merial;
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(C)
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Merck and
Schering-Plough Corporation (“ Schering-Plough
”), a corporation organized under the laws of New Jersey, are
parties to that certain Agreement and Plan of Merger, dated March
8, 2009, (the “ Merger Agreement ”) by and among
Schering-Plough, Merck and certain subsidiaries of Schering-Plough
formed to execute the merger of one of the merger subsidiaries into
Schering-Plough such that Schering-Plough is the surviving
corporation in such merger and the merger of the other merger
subsidiary into Merck such that Merck is the surviving corporation
in such merger and will become a wholly-owned subsidiary of
Schering-Plough;
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(D)
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Merck has
expressed an interest in selling its equity interests in Merial
(the “ Merck Equity Interest ”);
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(E)
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As of the date
hereof, the Merck Equity Interest is held by two intermediate
holding companies: (i) US Holding, a wholly owned subsidiary of
Merck, owns 9,750,338 Series A – Ordinary Shares in Merial,
representing 100% of the outstanding Series A – Ordinary
Shares of Merial, and (ii) UK Holding, a wholly owned subsidiary of
Merck, owns 1,250,000 Series C – Cumulative Preferred Shares
in Merial, representing 50% of the outstanding Series C –
Cumulative Preferred Shares of Merial;
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(F)
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Merck, UK
Holding and US Holding have decided to sell the Merck Equity
Interest to Aventis Inc.. Merck, UK Holding, US Holding and
Sanofi-Aventis entered into a share purchase agreement (the “
Share Purchase Agreement ”) on July 29,
2009;
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(G)
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Following the
completion of the transactions contemplated by the Share Purchase
Agreement (the “ SPA Closing ”), as of the SPA
Closing, Sanofi-Aventis will own indirectly 100% of the outstanding
equity interests in Merial as of such date; and
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(H)
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The Parties are
entering into this Agreement in connection with the SPA Closing to
effectuate Merck and Sanofi-Aventis’ decision to terminate
the JV Agreement and to further implement the transactions
contemplated by the Share Purchase Agreement (the “
Termination ”), while providing for certain rights and
obligations which will continue following the
Termination.
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Now,
therefore, in
consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby covenant and
agree as follows:
Unless
otherwise provided herein, capitalized terms shall have the meaning
given to them in the JV Agreement.
In this
Agreement, in addition to such terms as are defined elsewhere in
this Agreement, the following terms have the meanings specified in
this Article 1:
“
Agreement ” means this Termination Agreement,
including the Schedules and the Exhibits hereto;
“
Decision and Order ” means the order of the FTC in
connection with the regulatory approval of the transactions
contemplated by the Merger Agreement if it is either (i) accepted
or approved by the FTC for public comment or (ii) issued as final
by the FTC;
“
Existing Products License Agreement ” means the
Existing Products License Agreement dated as of May 23, 1997 (as
amended from time to time) by and between Merck & Co, Inc. and
Merial Limited;
“
FTC ” means the U.S. Federal Trade
Commission;
“ JV
Agreement ” has the meaning set forth in recital (A)
;
“
Merck Equity Interest ” has the meaning set forth in
recital (D);
“
Merger Agreement ” has the meaning set
forth in recital (C);
“
Research and Future Products License Agreement ” means
the Research and Future Products License Agreement dated May 23,
1997 (as amended from time to time) by and between Merck & Co,
Inc., Merial Limited and Rhône Mérieux SA;
“
Rhône-Poulenc ” has the meaning set forth in
recital (A);
“
Share Purchase Agreement ” has the meaning set forth
in recital (F);
“
Schering-Plough ” has the meaning set
forth in recital (C);
“
Termination ” has the meaning set forth in recital
(H).
References to
one gender include all genders and references to the singular
include the plural and vice versa.
The headings
used in this Agreement have been adopted by the Parties for ease of
reference only, and the Parties declare that these headings are not
to be comprised in this Agreement and shall not in any event
influence the meaning or interpretation of this
Agreement.
References to
this Agreement shall include any Exhibits, Schedules and Recitals
to it and references to Articles, Sections, Exhibits and Schedules
are to Articles of, Sections of, Exhibits to and Schedules to, this
Agreement.
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2.4
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References
to “directly or indirectly”
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“
Directly or indirectly ” means (without limitation)
either alone or jointly with any other Person and whether on its
own account or in partnership with another or others or as the
holder of any interest in any other Person.
Any phrase
introduced by the terms “including”,
“include”, “in particular” or any similar
expression shall be construed as illustrative and shall not limit
the sense of the words preceding those terms.
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Subject to the
terms and conditions of this Agreement and the Share Purchase
Agreement, and except as provided in Article 4, the JV Agreement
shall terminate in its entirety and shall cease to have any effect
from and after the date hereof.
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4
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Survival of
Certain Provisions of the JV Agreement
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The Parties
agree that all the provisions which, pursuant to the terms of the
JV Agreement, are expressed to survive the Termination shall
continue in full force and effect, as provided in the JV Agreement,
and in particular pursuant to Section 16.6; provided, however, that
Article XV of the JV Agreement shall be terminated and shall have
no further force or effect from and after the date
hereof. Notwithstanding the foregoing, if the Merger
Agreement is terminated for any reason after the date of this
Agreement, the provisions of Article XV of the JV Agreement shall
again apply to, and be binding upon, Merck (and its Subsidiaries)
from and after the date of termination of the Merger Agreement
until the third anniversary of the date hereof.
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5
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Ancillary
Agreements and Future Agreements
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5.1
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Surviving
Ancillary Agreements and Future Agreements
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The Parties
agree that, subject to Sections 5.2, 5.5 and 5.6, the Ancillary
Agreements and Future Agreements listed in Schedule 5.1
shall remain in full force and effect in accordance with
their respective terms until terminated in accordance with such
terms. All other Ancillary Agreements and Future
Agreements to which Merck or one of its Subsidiaries is a party
which are in effect prior to the date hereof, and all obligations
of Merck and its Subsidiaries in connection therewith, are hereby
terminated and shall have no further fo
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