This excerpt taken from the ABII 10-Q filed Dec 20, 2007.
This SEPARATION AND DISTRIBUTION AGREEMENT (this Agreement), dated as of November 13th, 2007, is among APP Pharmaceuticals, Inc., a Delaware corporation formerly known as Generico Holdings, Inc. (Gholdco), APP Pharmaceuticals, LLC, a Delaware limited liability company (Generico) (Gholdco and Generico, together, the Generico Parties), Abraxis BioScience, LLC, a Delaware limited liability company (New Alpha, LLC), and New Abraxis, Inc., a Delaware corporation (to be renamed Abraxis BioScience, Inc.) (New Alpha) (New Alpha, LLC and New Alpha, together, the Alpha Parties).
R E C I T A L S:
WHEREAS, on the date hereof, pursuant to an Agreement and Plan of Merger, dated as of that date (the Holding Company Merger Agreement), Abraxis BioScience, Inc., a Delaware corporation (Alpha) will merge (the Alpha Merger) with and into New Alpha, LLC, and pursuant to the Alpha Merger, each issued and outstanding share of common stock, $0.001 par value per share, of Alpha (other than shares held by Alpha in treasury) will be converted into one share of common stock, par value $0.001 per share, of Gholdco (the Gholdco Common Stock), with New Alpha, LLC being the surviving entity in the Alpha Merger and all of its membership interests being held by Gholdco;
WHEREAS, the following transactions will occur effective as of the date hereof after the consummation of the Alpha Merger and prior to the Distribution Time (as defined below);
(a) the contribution by New Alpha, LLC and the Alpha Subsidiaries to Generico of all of the Generico Assets (as defined below), and the assumption by Generico of all of the Generico Liabilities (as defined below), upon and subject to the terms and conditions set forth in this Agreement (collectively, the Generico Contribution);
(b) immediately after the Generico Contribution, the distribution by New Alpha, LLC of all of the outstanding membership interests of Generico to Gholdco (the Generico Distribution);
(c) immediately after the Generico Distribution, the contribution (the Alpha Contribution) by Gholdco of all of the membership interests of New Alpha, LLC to New Alpha;
(d) simultaneously with the Alpha Contribution, the incurrence by Generico of an aggregate of $1 billion (the amount borrowed, Borrowing Amount) of Debt Financing (as defined below);
(e) immediately after the consummation of the Debt Financing, the distribution by Generico to Gholdco of an amount of cash up to the Borrowing Amount (the Generico Cash Distribution) immediately followed by the contribution by Gholdco to New Alpha of cash in an aggregate amount of $975,722,781.93 (the Cash Contribution), a portion of which will be used to repay all outstanding amounts under the Existing Credit Agreement;
WHEREAS, immediately after the Cash Contribution, Gholdco will distribute (the Share Distribution) all of the issued and outstanding shares of common stock of New Alpha (New Alpha Common Stock) on a pro rata basis to the holders of record of Gholdco Common Stock upon the terms and subject to the conditions set forth in this Agreement (the transactions described above in the two prior WHEREAS clauses, together with the Share Distribution and the other transactions contemplated hereby, the Transactions);
WHEREAS, for United States federal income tax purposes, it was intended that the Alpha Merger qualify as a reorganization under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the Code), in which each of Alpha, New Alpha, LLC, Gholdco and their respective Affiliates recognize no income or gain, and it is intended that the Alpha Contribution, the Cash Contribution and the Share Distribution shall each have Tax-Free Status (as defined below); and
WHEREAS, Alpha received a private letter ruling from the Internal Revenue Service to the effect (a) that the Alpha Merger qualifies as a reorganization under Section 368(a)(1)(F) of the Code in which each of Alpha, New Alpha, LLC, Gholdco and their respective Affiliates recognize no income or gain, and (b) that (i) the Alpha Contribution, the Cash Contribution and the Share Distribution qualify as a tax-free reorganization described in Section 368(a)(1)(D) of the Code and (ii) subject to the requirements under Section 355 of the Code on which the Internal Revenue Service will not rule as provided in Revenue Procedure 2003-48, 2003-2 C.B. 86, that the Share Distribution is a transaction that will qualify for nonrecognition treatment under Sections 355(a) and 361(c) of the Code, in which (A) each of Gholdco, New Alpha, LLC, New Alpha, and their respective Affiliates recognize no income or gain, and (B) no income or gain is recognized by (and no amount is included in the income of) the holders of Gholdco common stock upon the receipt of shares of common stock of New Alpha pursuant to the Share Distribution (the Private Letter Ruling).
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth in this Agreement, the parties hereto agree as follows: