AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
as of July 12, 2002
between
Dumex Medical Inc., Dumex Medical Surgical Products Limited,
1013172 Ontario Limited and Dumex Quebec Inc.
- and -
4087755 Canada Inc.
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT is made as of the 12th day of July, 2002
BETWEEN:
Dumex Medical Inc., a corporation incorporated under the laws of
Canada, Dumex Medical Surgical Products Limited, a corporation
incorporated under the laws of Canada, 1013172 Ontario Limited, a
corporation incorporated under the laws of Ontario, and Dumex
Quebec Inc., a corporation incorporated under the laws of Canada
(collectively, the "Dumex Entities")
OF THE FIRST PART
- and -
4087755 Canada Inc., a corporation incorporated under the laws of
Canada
(the "Buyer")
OF THE SECOND PART
RECITALS:
1. The Dumex Entities and the Buyer are parties to that certain Asset
Purchase Agreement (the "Agreement") dated as of June 28, 2002,
pursuant to which the Buyer has agreed to purchase and the Seller has
agreed to sell, all of the right, title and interest, if any, of the
Dumex Entities in and to the Purchased Assets, subject to the terms
and conditions of the Agreement.
2. In furtherance of the Transaction, the Parties wish to amend certain
terms of the Agreement as provided below.
IN CONSIDERATION of the premises and the mutual agreements contained in this
Amendment, and of other consideration (the receipt and sufficiency of which are
acknowledged by each Party), the Parties agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 Definitions and Interpretation
In this Amendment, all capitalized terms used herein but not otherwise
defined, shall have the meanings given thereto in the Agreement. The rules of
interpretation set forth in the Agreement shall also apply to this Amendment.
1.2 Amended Definitions
The definition of the following defined term is hereby amended as follows:
"Due Diligence Period" means from June 20, 2002 to 5 p.m. (Toronto time) on
July 12, 2002;
1.3 Applicable Law
This Amendment shall be governed by, and interpreted and enforced in
accordance with, the laws in force in Ontario (excluding any conflict of laws
rule or principle which might refer such interpretation to the laws of another
jurisdiction). Each Party irrevocably submits to the exclusive jurisdiction of
the courts of Ontario with respect to any matter arising hereunder or related
hereto.
ARTICLE 2
CONDITIONS PRECEDENT
2.1 Conditions of Closing
The conditions of Closing contained in Sections 4.1(c), (f) and (g) of the
Agreement are hereby amended as set forth below. The Buyer and the Seller shall
be obliged to complete the Closing only if each of the conditions precedent set
out in this Section 2.1 have been satisfied in full at or before the Closing
Time:
(a) Section 4.1(c) as Amended
"(c) Orders
The Appointment Order and the Approval and Vesting Order shall have
been obtained by July 19, 2002. The right to appeal or seek leave to
appeal from the Approval and Vesting Order shall have expired with all
Appeal Proceedings, if any, having been dismissed, quashed or
permanently stayed without further right of appeal or to seek leave of
appeal."
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(b) Section 4.1(f) as Amended
"(f) Offer of Finance
The Bank, Derma, the Buyer, and the Guarantor shall have executed and
delivered the Offer of Finance by 5:00 p.m. (Toronto time) on July 15,
2002 (unless otherwise agreed to be extended)."
(c) Section 4.1(g) as Amended
"(g) Operations Agreement
The Bank, the Dumex Entities, the Guarantor and Derma shall have
entered into the Operations Agreement by 5:00 p.m. (Toronto time) on
July 15, 2002 (unless otherwise agreed to be extended) and there shall
have been no material breach thereof by any party thereto."
2.2 Conditions of Closing for Buyer
The conditions of Closing for Buyer contained in Section 4.2(g) of the
Agreement is hereby amended as set forth below. The obligations of the Buyer to
complete the purchase of the Purchased Assets pursuant to the Agreement shall be
subject to the satisfaction of the following condition precedent as or prior to
the Closing Time, which condition is for the exclusive benefit of the Buyer and
which may be waived by it, in whole or in part, by writing. If such condition is
not satisfied or waived by the Buyer as at the Closing Time, the Buyer may, in
its sole discretion, terminate the Agreement.
(a) Section 4.2(g) as Amended
"(g) Xxxxxxx & Xxxxxxx Medical, a Division of Ethicon, Inc., shall
have consented to the assignment to, and assumption by, Buyer of
that certain Supply Agreement between Dumex and Xxxxxxx & Xxxxxxx
Medical dated as of September 27, 2001, and such agreement and
consent to assignment and assumption shall be in full force and
effect on the Closing Date notwithstanding the purchase of the
Purchased Assets by Buyer;"
ARTICLE 3
GENERAL
3.1 Confirmation
All terms and conditions of the Agreement not amended by this Amendment,
are hereby confirmed and ratified in all respects and shall remain in full force
and effect in accordance with their terms.
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3.2 Counterparts
This Amendment may be executed in any number of counterparts. Each executed
counterpart shall be deemed to be an original. All executed counterparts taken
together shall constitute one amendment.
3.3 Facsimile Execution
To evidence the fact that it has executed this Amendment, a Party may send
a copy of its executed counterpart to all other Parties by facsimile
transmission. That Party shall be deemed to have executed this Amendment on the
date it sent such facsimile transmission. In such event, such Party shall
forthwith deliver to the other Party the counterpart of this Amendment executed
by such Party.
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TO WITNESS their agreement, the Parties have duly executed this Amendment.
4087755 CANADA INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
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DUMEX MEDICAL INC.
By:
--------------------------------------------
Name:
Title:
DUMEX MEDICAL SURGICAL PRODUCTS LIMITED
By:
--------------------------------------------
Name:
Title:
1013172 ONTARIO LIMITED
By:
--------------------------------------------
Name:
Title:
DUMEX QUEBEC INC.
By:
--------------------------------------------
Name:
Title:
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