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38. He submitted that the conditions governing the Target Company were stipulated more specifically in Section 6.4 (Treatment of Bausch & Lomb India) stating that:

"(a) "Seller shall use commercially reasonable efforts to purchase from B & L India as soon as practicable all assets of B & L India which do not relate primarily to the Business (i.e. Eyewear business)and to cause B & L India to use the proceeds of such sale to satisfy any liabilities; which do not relate primarily to the Business. If such transactions have not been consummated prior to the Closing date, B & L India shall be treated as a deferred subsidiary pursuant to section 3.3. until such transactions have occurred and until there are no other circumstances that would cause B & L India to remain a deferred subsidiary; provided that (a) Seller may waive the condition that the sale transaction be consummated prior to a Deferred Closing (b) the period after which a transfer of the Purchased Shares of B & L India will be abandoned as contemplated by Schedule 3.3 (d) shall be twenty four (24) months and (c) any payments pursuant to schedules 3.3(c) and 3.3(d) shall be computed solely on the basis of the assets, liabilities and operations of B & L India which are primarily related to the Business, adjusted to take into account the applicable Sellers Entity's partial ownership interest in Bausch & Lomb India."

42. Learned Senior counsel submitted that Section 6.4 of the Agreement was amended as per Section 2.1 of the Third Amendment to the Purchase Agreement dated 3.2.2000 which read as follows:

"2.1 Sub section 6.4 (a) is hereby amended by deleting it in its entirely and inserting in lieu thereof the following:
(a)(i) Seller shall use commercially reasonable efforts to purchase as soon as reasonably practicable from B & L India all assets of B&L India which do not relate primarily to the Business and to cause B&L India to use the proceeds of such sale to satisfy any liabilities which do not relate primarily to the Business (such transactions are hereinafter referred to, collectively as the "Spin off transactions"). By virtue of the fact that the Spin off transactions were not consummated prior to the Closing date, B&L India has been and shall be treated as a Deferred Subsidiary pursuant to Section 3.3 until the Spin off Transactions shall have occurred and until there are no other circumstances that would otherwise cause B&L India to remain a Deferred Subsidiary; provided that (a) the period after which a transfer of the Purchased Shares of B&L India will be abandoned as contemplated by Schedule 3.3 (d) shall be twenty four (24) months and (b) any payments pursuant to schedule 3.3 (c) and 3.3.(d) shall be computed solely on the basis of the assets, liabilities and operations of B&L India which are primarily related to Business, adjusted to take into account the Applicable Sellers entity's partial ownership interests in B&L India. The Deferred Closing for B&L India shall be effectuated though a merger of certain subsidiaries of Buyer and Seller, as is set forth with greater particularity in Section 6.4(a) (ii) below.
(a)(ii) On or before March 1, 2000 or as soon as reasonably practicable thereafter, each of Seller and Buyer shall form a direct or indirect wholly owned subsidiary, each of which shall be organized under the laws of Delaware, USA. The subsidiary to be formed by Buyer is referred to herein as "Buyer Sub" and the subsidiary to be formed by Seller is referred to herein as "Seller Sub". On or before March 1, 2000, or as soon as reasonably practicable thereafter, Seller sub shall form a direct or indirect wholly owned subsidiary which shall be organized under the laws of Delaware, USA and is referred to herein as "Seller Sub 2". As soon as thereafter as practicable, Seller shall cause B&L South Asia, Inc. to transfer the Purchased Shares of Bausch & Lomb India to Seller Sub 2. Subject to section 6.4 (a) (iii) below, as promptly as practicable following the consummation of the Spin Off transactions, Seller and Buyer shall cause Seller Sub to be merged with and into Buyer Sub, which shall be the surviving corporation (the Indian Merger" and the date on which the Indian Merger is completed shall be the "Indian Closing Date"), pursuant to and in accordance with the scheme of merger under the applicable laws of the jurisdiction of incorporation of Buyer Sub and Seller Sub and the consummation of the Indian Merger shall constitute the Deferred Closing for Bausch & Lomb India for all purposes of this Agreement. As soon as reasonably practicable following the Indian Closing Date, Buyer shall use commercially reasonable efforts to cause the entity name of B&L India, Ltd to be changed so that the entity name does not retain or include any reference to Bausch & Lomb or any other trade name or trademark of Seller not transferred pursuant to the Agreement."

62. Shri Dada referred to article 2.1 of the Agreement on "Purchased assets" that there was an obligation on Bausch & Lomb Inc. to cause its subsidiaries to sell convey, transfer and assign to the Appellant entities the purchased assets and the assets other than the Excluded Assets. He also referred to the description of Excluded Assets as provided in Schedule 2.3(a) of the Purchase Agreement and submitted that the shares of the Target Company is not an Excluded Asset in terms of the said Schedule. He also referred to the obligation of the Appellants on the purchase price provided in Article 2.4 that "subject only 3.2(b), upon the terms and subject to the conditions of this Agreement and in consideration of the Purchased Assets and the Purchased Shares to the Buyer Entities by the Seller Entities, Buyer shall, or shall cause the Buyer subsidiaries to, pay the Purchase Price to Seller Entitles by wire transfer of immediately available funds in accordance with written instructions given by Seller to Buyer which shall be given on or prior to the Closing Date." Learned Senior Counsel submitted that the Agreement itself had decided the Closing date in Article 3 that "unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article 9 hereof the closing with respect to transactions provided for in this Agreement (Closing) shall take place ...on June 25, 1999(or as soon as practicable thereafter) as all of the conditions to the closing set forth in Article 7 hereof are satisfied or waived, or at such other time, date and place as shall be agreed upon by Seller and Buyer". He also referred to "first step" and "second step" referred to in Article 3.2 (b)(i)& (ii) and submitted that the first step is the actual consummation. Learned Counsel also referred to Article 3.3 on "staged transfers' and referred in particular to condition that "Between the Closing Date and any applicable Deferred Closing Date ("a Deferred Period") the Deferred Net Assets, the Transferred Subsidiaries represented by a Deferred Shares (the Deferred Subsidiaries)" the allocable portion of the Purchase Price relating to the Deferred Net Assets and Deferred Shares and certain other matters shall be administered as described in Schedule 3.3(c)". In the said schedule at clause (e) it has been provided that "Pending the Deferred closing with respect to any Deferred Country, the applicable Seller Entities and any Deferred Subsidiaries shall operate the Business in the Deferred Country for the account of the Buyer in the ordinary course under the Transition Services Agreement."