Exhibit 2(b)
EXECUTION COPY
AMENDMENT TO ASSET PURCHASE AGREEMENT
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This shall serve as an amendment (the "Amendment"), dated as of
September 15, 1995, to the Asset Purchase Agreement by and among VWR
Corporation, a Pennsylvania corporation ("Buyer"), and Xxxxxx Healthcare
Corporation, a Delaware corporation ("Seller"), and solely with respect to
paragraphs 5.5, 5.8 and 5.9, EM Laboratories, Incorporated, a New York
corporation, dated as of May 24, 1995 (the "Purchase Agreement"). The parties
hereto hereby agree as follows:
1. Effect of Amendment. The Purchase Agreement and the terms,
-------------------
provisions and definitions therein shall continue in full force and effect and
are hereby incorporated herein in their entirety by this reference thereto
except to the extent that the Purchase Agreement is modified by this Amendment.
The parties shall modify and amend the Purchase Agreement as set forth herein.
To the extent that any provision of this Amendment is inconsistent with the
Purchase Agreement, the terms of this Amendment shall control. The parties
acknowledge that the materials contained as Annexes to this Amendment replace
corresponding Schedules contained in the Disclosure Statement and that the
Disclosure Statement, as originally referred to in the Agreement, contained all
of the Schedules referenced in the Agreement.
2. Amendment to Section 1 Heading. The following shall replace the
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Section 1 heading of the Purchase Agreement:
"SECTION 1
PURCHASE AND SALE OF SUBJECT ASSETS
AND FOREIGN ASSETS"
3. Amendment to Section 1. The following shall be added as paragraph
----------------------
1.12 of the Purchase Agreement:
"1.12 Purchase and Sale of Foreign Assets
(a) Subject to the provisions of this Agreement, Seller shall cause
each of the Foreign Subsidiaries to sell, assign, transfer, convey and deliver
to Buyer, and Buyer shall purchase and acquire from the Foreign Subsidiaries,
all of their right, title and interest in and to the following properties and
assets of each of the Foreign Subsidiaries used or held in connection with the
operation of the Foreign Industrial Distribution Business as the same shall
exist on the date requested by Buyer in accordance with paragraph 1.6(b) hereto
(collectively, the "Foreign Assets"):
(i) subject to paragraph 1.8 hereof, all rights and benefits of
the Foreign Subsidiaries in, to and under all licenses, contracts,
customer pricing agreements and other written understandings,
agreements, commitments and purchase orders with all of the Industrial
Customers relating exclusively to the Foreign Industrial Distribution
Business or by which any of the Foreign Assets are specifically bound,
except those relating exclusively to Ireland (collectively, the
"Foreign Contracts");
(ii) all of the inventories of Distributed Products, including
laboratory instruments, supplies, equipment, samples, demonstration
equipment, evaluation units and accessories, wherever located, of the
Foreign Subsidiaries, except those relating exclusively to Ireland
(the "Foreign Inventory") held by each Foreign Subsidiary exclusively
for sale to Industrial Customers;
(iii) a portion of each Foreign Subsidiary's Foreign Inventory not
held by each Foreign Subsidiary exclusively for sale to Industrial
Customers determined as follows: The number of units in each product
category contained in such Foreign Inventory as of the Closing Date to
be sold to Buyer by each Foreign Subsidiary shall be equal to the
total number of units of each product category held in inventory by
such Foreign Subsidiary multiplied by a fraction the numerator of
which shall be the unit sales by such Foreign Subsidiary of such
product category to Industrial Customers during the 90-day period
prior to the Closing Date, and the denominator of such fraction shall
be the total unit sales by such Foreign Subsidiary of such product
category during the 90-day period prior to the Closing Date;
(iv) all of the sales and business records relating exclusively to
Industrial Customers of the Foreign Industrial Distribution Business
(other than any income tax records of Seller or any Foreign
Subsidiary) wherever located including, without limitation, all files
invoices, correspondence, maintenance, operating records, advertising
materials, customer lists, cost and pricing information and credit
record of customers;
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(v) all permits, approvals, licenses, franchises, authorizations or
other rights granted by any federal, state, local or foreign
governmental authority held or applied for by Seller or any Foreign
Subsidiary and which are exclusively used, or intended to be
exclusively used, in the Foreign Industrial Distribution Business or
which relate exclusively to the Foreign Assets, and all other
consents, grants, and other rights that are used exclusively, required
or necessary for the lawful ownership of the Foreign Assets and the
operation of the Foreign Industrial Distribution Business, all only to
the extent legally transferable;
(vi) all rights and benefits of Seller or any Foreign Subsidiary in
and to all manufacturers' warranties or guaranties related
exclusively to the Foreign Inventory, all indemnification rights
against third parties related exclusively to the Foreign Assets or
related exclusively to any Foreign Assumed Liabilities and any and all
manufacturers' or third party service and replacement programs related
exclusively to the Foreign Inventory; and
(vii) all brochures, sales literature, promotional materials,
advertising materials and artwork, if any, relating exclusively to
products of the Foreign Industrial Distribution Business, customer
lists to the extent relating exclusively to the Foreign Industrial
Distribution Business, and all other selling materials of Seller or
any Foreign Subsidiary used exclusively by Seller or any Foreign
Subsidiary in the operation of the Foreign Industrial Distribution
Business or which relate exclusively to the Foreign Industrial
Distribution Business and the Foreign Assets.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the Foreign Assets shall not be deemed to include, and there shall be
excluded from the purchase and sale hereunder, the Foreign Excluded Assets."
4. Amendment to Section 1. The following shall be added as paragraph
1.13 of the Purchase Agreement:
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"1.13 Foreign Assumption of Liabilities
Subject to the conditions of paragraph 7.1 of this Agreement and
paragraph 1.3 above, upon the sale and purchase of the Foreign Assets, Buyer
shall assume and agree to pay, perform, or discharge when due in accordance with
their respective terms the following liabilities and obligations of the Foreign
Subsidiaries (collectively, the "Foreign Assumed Liabilities"):
(a) all liabilities and obligations of the Foreign Subsidiaries to be
performed after the Closing under the Foreign Contracts, except to the extent
that such liabilities and obligations relate to a breach of a Foreign Contract
by any of the Foreign Subsidiaries prior to the Closing; and
(b) all liabilities and obligations arising from or in connection with
product warranty claims relating to recalls, refunds or returns of any products
of the Foreign Industrial Distribution Business sold or distributed by the
Foreign Subsidiaries prior to the Closing Date."
5. Amendment to Section 1.1(a). Section 1.1(a) of the Purchase
---------------------------
Agreement is hereby amended by adding the following subparagraph after
subparagraph 1.1(a)(xi) thereof:
"(xii) all samples, wherever located, of Seller relating exclusively to
the Industrial Distribution Business or, if any, the Foreign Industrial
Distribution Business."
6. Amendment to Schedule 1.1(a)(iii). Schedule 1.1(a)(iii) to the
---------------------------------
Disclosure Statement is hereby deleted and replaced in its entirety with Annex I
attached hereto.
7. Amendment to Section 1.1(a)(iv) and Schedule 1.1(a)(iv). The
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following shall replace Section 1.1(a)(iv) of the Purchase Agreement:
(iv) subject to paragraph 1.8 hereof, all rights and benefits of
Seller in, to and under all licenses, contracts, customer pricing
agreements and other written understandings, agreements, commitments
and purchase orders with all of the Industrial Customers and others
relating exclusively to the operation of the Industrial Distribution
Business or by which any of the Subject Assets are specifically bound,
including, without limitation, all leases for the use of personal
property relating exclusively to the operation of the Industrial
Distribution Business and to which Seller is a party or by which any
of the Subject Assets are specifically bound, but excluding contracts
and other arrangements with suppliers to the Industrial Distribution
Business (collectively, the "Contracts");
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Schedule 1.1(a)(iv) to the Disclosure Statement is hereby deleted.
8. Amendment to Schedule 1.1(a)(vii). Schedule 1.1(a)(vii) to the
---------------------------------
Disclosure Statement is hereby deleted and replaced in its entirety with Annex
II attached hereto.
9. Amendment to Section 1.1(a)(viii). The following shall replace
---------------------------------
Section 1.1(a)(viii) of the Purchase Agreement:
"(viii) all domestic trade accounts receivable of Seller arising
exclusively from the sale by the Industrial Distribution Business of
general laboratory equipment and supplies prior to the Closing Date (the
"Industrial Accounts Receivable");"
10. Amendment to Section 1.1(b)(x). The following shall replace
------------------------------
Section 1.1(b)(x) of the Purchase Agreement:
"(x) Except for software specifically listed on Schedule 1.1(a)
hereto, any of Seller's rights in any computerized records or other
computer software, including Source 2000 and other CD-ROM technology,
utilized by Seller in connection with the Industrial Distribution
Business."
11. Amendment to Section 1.1(b)(xvii). The following shall replace
---------------------------------
Section 1.1(b)(xvii) of the Purchase Agreement:
"(xvii) all the inventories of Seller, regardless of whether such
inventories relate to the Industrial Distribution Business, except the
Foreign Inventory."
12. Amendment to Section 1.3. The following shall replace Section
------------------------
1.3 of the Purchase Agreement:
"1.3 Excluded Liabilities
Notwithstanding anything to the contrary contained herein but except
to the extent specifically set forth in paragraphs 1.2 and 1.13 hereof, Buyer
shall not have any responsibility and shall not assume or in any way be liable
or responsible to Seller, the Foreign Subsidiaries or any other person for, and
Seller and the Foreign Subsidiaries shall retain the liability in respect of,
all liabilities, obligations and debts of Seller and the Foreign Subsidiaries
which relate to the Industrial Distribution Business or the Foreign Industrial
Distribution Business or the Subject Assets arising from the conduct of the
Industrial Distribution Business or the Foreign Assets arising from the conduct
of the Foreign Industrial Distribution Business prior to the Closing, whenever
arising and whether primary or secondary, direct or indirect, absolute or
contingent, known or unknown, contractual, tortious or otherwise, except for the
Assumed Liabilities and the Foreign Assumed
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Liabilities (collectively, the "Excluded Liabilities"). Without limiting the
foregoing, the Excluded Liabilities shall include without limitation: (i) tax
liabilities or obligations of Seller or any Foreign Subsidiary with respect to
any period prior to the Closing, (ii) liabilities or obligations of Seller or
any Foreign Subsidiary for withholding, unemployment, social security or payroll
taxes with respect to any period prior to the Closing, (iii) liabilities or
obligations of Seller or any Foreign Subsidiary for salary, wages, pension and
profit sharing expenses accrued with respect to any period prior to the Closing,
(iv) liabilities or obligations relating in any way to any violation by Seller
of (or non-compliance by Seller with) the bulk sales act of any state, (v)
liabilities of Seller or any Foreign Subsidiary for all claims for health care
and other welfare benefits (it being understood that this clause shall not be
deemed to affect Section 8 hereof), (vi) liabilities resulting from the failure
of Seller or any Foreign Subsidiary to provide health continuation coverage as
required by the Internal Revenue Code of 1986, as amended, and ERISA (as defined
in paragraph 2.16 hereof), (it being understood that this clause shall not be
deemed to affect Section 8 hereof), (vii) liabilities of Seller arising out of a
violation by Seller or any Foreign Subsidiary of any Law (as defined in
paragraph 13.1 hereof), including without limitation Laws relating to health and
safety, (viii) liabilities of Seller or any Foreign Subsidiary incurred for the
costs and expenses of negotiating and consummating the transactions contemplated
by this Agreement, (ix) tort liabilities of Seller or any Foreign Subsidiary
arising in connection with products sold or actions taken by Seller or any
Foreign Subsidiary prior to the Closing, (x) claims arising under any Contract
not included in the Subject Assets or Foreign Assets, (xi) claims based upon
Seller's or any Foreign Subsidiary's performance prior to the Closing or
Seller's or any Foreign Subsidiary's failure to perform any obligation required
to be performed prior to the Closing, (xii) all liabilities and obligations of
Seller or any Foreign Subsidiary in respect of trade payables arising from the
purchase of products and/or inventory used in or sold by the Industrial
Distribution Business and (xiii) all liabilities and obligations of Seller or
any Foreign Subsidiary for customer rebates with respect to any period prior to
the Closing regardless of when actually payable. The assumption of the Assumed
Liabilities and the Foreign Assumed Liabilities by Buyer hereunder shall not
enlarge any rights of third parties under contracts or arrangements with Buyer,
Seller or any Foreign Subsidiary and nothing herein shall prevent any party from
contesting in good faith with any third party any of said Assumed Liabilities or
said Foreign Assumed Liabilities."
13. Amendment to Section 1.4. The following shall replace Section
------------------------
1.4 of the Purchase Agreement:
"1.4 Purchase Price and Payment
(a) Amount Payable. In consideration of the sale by Seller to Buyer
--------------
of the Subject Assets and the sale by the Foreign
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Subsidiaries to Buyer of the Foreign Assets and the satisfaction of all of the
conditions contained herein, Buyer shall at the Closing deliver to Seller
$399,561,900 by wire transfer of immediately available funds (such amount being
herein referred to as the "Base Purchase Price"). In addition to the Base
Purchase Price, Buyer shall pay to Seller the sum of $27,313,958 (the
"Installment Payment") in equal daily installments over the 52 days immediately
following the Closing Date. The Base Purchase Price and the Installment Payment
are herein referred to together as the "Purchase Price." The Purchase Price
shall be subject to adjustment as provided for herein.
(b) Closing Statement of Assets and Liabilities.
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(i) As soon as practicable, but in any event within 90 days after
the Closing, Seller will cause to be prepared and delivered to Buyer a
statement of assets and liabilities of the Industrial Distribution
Business and the Foreign Industrial Distribution Business (the
"Closing Statement of Assets and Liabilities") reflecting the Subject
Assets, the Foreign Assets, the Assumed Liabilities and the Foreign
Assumed Liabilities as of the Closing Date.
(ii) The Closing Statement of Assets and Liabilities shall be
prepared from the books and records of Seller relating to the
Industrial Distribution Business and the Foreign Industrial
Distribution Business in a manner consistent with that of the
statement of assets and liabilities of the Industrial Distribution
Business as of March 31, 1995 attached as Schedule 1.4(b)(ii) (the
"Pre-Closing Statement of Assets and Liabilities"). Buyer shall
cooperate with Seller in the preparation of the Closing Statement of
Assets and Liabilities to the extent reasonably requested by Seller.
The items reflected on such Closing Statement of Assets and
Liabilities shall be calculated in accordance with generally accepted
accounting principles ("GAAP"), including an allowance for
uncollectible Industrial Accounts Receivable, as applied in a manner
consistent with the Pre-Closing Statement of Assets and Liabilities,
except that the calculation of Industrial Accounts Receivable shall
exclude any reserves for price adjustments, billing errors and
returns, and except further that all Foreign Inventory shall be valued
in accordance with the method described in Section 2.19 hereof. Buyer
and Seller acknowledge that no value shall be given on such statement
to any goodwill. Buyer and Seller shall have full access to the
accounting records from which the Closing Statement of Assets and
Liabilities will be
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derived and may, at the option of either of them and at their own
expense, have representatives present to observe any part of the
preparation of the Closing Statement of Assets and Liabilities or any
other matter relating thereto.
(iii) Subject to subparagraph 1.4(b)(iv), the Closing
Statement of Assets and Liabilities delivered by Seller to Buyer shall
be final, binding and conclusive on the parties hereto for all
purposes of this Agreement and shall provide the basis for determining
(1) the liabilities and obligations of Seller to be assumed pursuant
to paragraph 1.2, (2) the liabilities and obligations of the Foreign
Subsidiaries to be assumed pursuant to paragraph 1.13 and (3) the
adjustments (if any) specified in subparagraph 1.4(c).
(iv) (A) Buyer, at its own expense, may conduct an audit, review
or other report of the Closing Statement of Assets and Liabilities,
including causing any nationally recognized firm of independent public
accountants designated by Buyer and reasonably acceptable to Seller
which, for purposes hereof, shall include Ernst & Young L.L.P
("Buyer's Accountants") to perform such audit, review or other report.
Buyer may dispute the Closing Statement of Assets and Liabilities, but
only on the basis that the items on the Closing Statement of Assets
and Liabilities were not calculated in accordance with GAAP as applied
in a manner consistent with the Pre-Closing Statement of Assets and
Liabilities. Any such dispute shall be initiated by written notice
delivered to Seller within 30 days of Buyer's receipt of the initial
Closing Statement of Assets and Liabilities specifying each disputed
item, the amount thereof and the basis on which such dispute is made.
(B) In the event of such a dispute, Seller and Buyer shall
attempt to reconcile their differences and any written resolution
by them as to any disputed amounts shall be final, binding and
conclusive on the parties, and Seller shall revise the Closing
Statement of Assets and Liabilities in accordance with such
written resolution.
(C) If Seller and Buyer are unable to reach a written
resolution of all disputed items within 20 days after Buyer's
written notice of dispute, Seller and Buyer shall submit the
items remaining in dispute for resolution to a firm of
independent public
8
accountants having national standing in the United States which
is not then retained by Seller, Buyer or their respective
Affiliates, as mutually selected by Buyer and Seller (the
"Neutral Accounting Firm"). In the event that Seller and Buyer
are unable to agree on the Neutral Accounting Firm, then a
nationally recognized "Big Six" accounting firm will be selected
by lot after eliminating one such firm selected by Seller and one
such firm selected by Buyer. The Neutral Accounting Firm shall,
within 30 days after submission to it of the disputed items,
determine and report in writing to the parties upon such
remaining disputed items in accordance with the provisions
hereof; and such report shall be final, binding and conclusive on
the parties hereto. The fees and disbursements of the Neutral
Accounting Firm shall be allocated between Seller and Buyer in
the same proportion that the aggregate amount of such remaining
disputed items so submitted to the Neutral Accounting Firm that
is unsuccessfully disputed by each (as finally determined by the
Neutral Accounting Firm) bears to the total amount of such
remaining disputed items so submitted. The Neutral Accounting
Firm shall make such determination in its sole discretion,
subject to the terms and conditions of this Agreement; provided,
however, that the amount determined by the Neutral Accounting
Firm in respect of any such remaining disputed item shall not
exceed the highest amount claimed by either of the parties
disputing such item, or be less than the lowest amount claimed by
either of the parties disputing such item. The Closing Statement
of Assets and Liabilities as finally determined in accordance
with subparagraph (b)(iii) or (iv) shall constitute the Closing
Statement of Assets and Liabilities for all purposes of this
Agreement.
(c) Purchase Price Adjustment. In the event that the final
-------------------------
determination of the Closing Statement of Assets and Liabilities indicates that
the amount obtained (the "Closing Date Net Asset Amount") by subtracting (i) the
Assumed Liabilities and the Foreign Assumed Liabilities reflected on the Closing
Statement of Assets and Liabilities from (ii) the Subject Assets and the Foreign
Assets reflected on the Closing Statement of Assets and Liabilities is less than
$72,375,958, the amount of the difference shall be an adjustment in favor of
Buyer to be refunded to Buyer, as a reduction of the Purchase Price, within 10
days of the final determination of such adjustment. In the
9
event that the final determination of the Closing Statement of Assets and
Liabilities indicates that the Closing Date Net Asset Amount is greater than
$72,375,958, the aggregate amount of the difference shall be an adjustment in
favor of Seller to be paid to Seller, as an increase of the Purchase Price,
within 10 days of the final determination of such adjustment."
14. Amendment to Section 1.6. The following shall replace Section
------------------------
1.6 of the Purchase Agreement:
"1.6 Transfer of Subject Assets and Foreign Assets
(a) At the Closing, Seller shall deliver to Buyer a xxxx of sale and
assignment, in substantially the form of Exhibit 1.6(a) together with such
additional documents and instruments as may be reasonably requested by Buyer,
transferring to Buyer all of Seller's right, title and interest in, to and under
the Subject Assets. At the Closing, Buyer shall deliver to Seller an assumption
agreement, in substantially the form of Exhibit 1.6(b) and Buyer shall deliver
to Seller appropriate assumption agreements, each in substantially the form of
Exhibit 1.6(d), together with such additional documents and instruments as may
be reasonably requested by Seller, evidencing Buyer's agreement to pay, perform
and discharge the Assumed Liabilities.
(b) On such date or dates as Buyer shall specify by five days' written
notice to Seller, but in no event more than 60 days following the Closing,
Seller shall cause to be delivered to Buyer by the Foreign Subsidiary or each of
Foreign Subsidiaries requested by Buyer in such notice or notices, a xxxx of
sale and assignment, in substantially the form of Exhibit 1.6(c) together with
such additional documents and instruments as may be reasonably requested by
Buyer, transferring to Buyer all of such Foreign Subsidiary's right, title and
interest in, to and under the Foreign Assets. Simultaneously on such date or
dates, Buyer shall deliver to Seller an assumption agreement, in substantially
the form of Exhibit 1.6(d), together with such additional documents and
instruments as may be reasonably requested by Seller, for each of the Foreign
Subsidiaries requested by Buyer in such notice or notices, evidencing Buyer's
agreement to pay, perform and discharge the Foreign Assumed Liabilities."
15. Amendment to Section 1.7. The following shall replace Section
------------------------
1.7 of the Purchase Agreement:
"1.7 Delivery of Records and Contracts
At the Closing, or at such later time as Buyer may direct, subject to
Paragraph 1.9, Seller shall deliver or cause to be delivered to Buyer all of the
Contracts and Foreign Contracts except contracts or other arrangements with
suppliers to the Industrial Distribution Business and the Foreign Industrial
Distribution Business; Seller shall also deliver to Buyer at the Closing, or at
such later time as Buyer may direct, all of Seller's business records, books and
other data relating
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exclusively to the Industrial Distribution Business or the Foreign Industrial
Distribution Business and forming part of the Subject Assets or the Foreign
Assets, and Seller shall take all requisite steps to put Buyer in actual
possession and operating control of the Subject Assets and the Industrial
Distribution Business and the Foreign Assets and the Foreign Industrial
Distribution Agreement. After the Closing, (i) Buyer shall afford to Seller,
and its Affiliates and their accountants and attorneys, for all reasonable
business purposes after the Closing, reasonable access to the books and records
of Seller delivered to Buyer under this Section and shall permit Seller, at
Seller's expense, to make extracts and copies therefrom and (ii) Seller shall
afford to Buyer, and its Affiliates and their accountants and attorneys, for all
reasonable business purposes related to the operation of the Industrial
Distribution Business and the Foreign Industrial Distribution Business after the
Closing Date, reasonable access to the books and records of Seller relating to
the Industrial Distribution Business and the Foreign Industrial Distribution
Business which are retained by Seller and the Foreign Subsidiaries pursuant to
paragraph 1.1(b) or paragraph 1.12(b) and shall permit Buyer, at Buyer's
expense, to make copies and extracts therefrom. The parties each covenant to
take such care in keeping and storing all such books and records retained by
such party as would a prudent owner thereof. Such books and records shall be
retained for a period of six years after the Closing Date or, in the case of
books and records required to support tax returns and tax audits, ten years
after the Closing Date, and thereafter, as the case may be, shall only be
destroyed after first giving written notice to the other party of such intention
to destroy and providing a reasonable opportunity, at such other party's
expense, to segregate and remove such books and records, if any, as such other
party may select."
16. Amendment to Section 1.8. The following shall replace Section
------------------------
1.8 of the Purchase Agreement:
"1.8 Non-Assignable Contracts
(a) Non-Assignability. Nothing in this Agreement will constitute a
-----------------
transfer or an attempted transfer of any Contract or Foreign Contract which is
not capable of being transferred without the consent, approval, waiver or
novation of a third person or entity, or with respect to which such transfer or
attempted transfer would constitute a breach thereof or a violation of any Law,
other than those for which such consents, approvals, waivers or novations have
been obtained by Seller or the Foreign Subsidiaries prior to the Closing Date
(such nontransferable Contracts, Foreign Contracts and permits being
collectively referred to herein as "Unassigned Contracts").
(b) Consents, Approvals, etc. Notwithstanding anything contained in
------------------------
this Agreement to the contrary, Seller and the Foreign Subsidiaries shall not be
obligated to transfer to Buyer any of its rights and obligations in and to any
Unassigned
11
Contract without first having obtained all consents, approvals, waivers and
novations necessary for such transfer under the terms of such Unassigned
Contract or applicable law, at which time such Unassigned Contract will, without
further action, be deemed to be transferred to Buyer.
(c) If Consents, Approvals, etc. Are Not Obtained. Prior to the
---------------------------------------------
Closing Date, Seller and the Foreign Subsidiaries shall use their commercially
reasonable efforts to obtain the consents, approvals, waivers and novations
referred to in subparagraph 1.8(a), provided that the only consents required
prior to Closing are the consents, if any, referred to in subparagraph 7.1(f).
To the extent that the consents, approvals, waivers and novations referred to in
subparagraph 1.8(a) are not obtained by Seller and the Foreign Subsidiaries,
Seller and the Foreign Subsidiaries will, as to each Unassigned Contract, use
their commercially reasonable efforts after the Closing Date to provide to Buyer
the full benefits of such Unassigned Contracts, cooperate in any lawful
arrangement designed to provide such benefits to Buyer without incurring any
obligation to any third party, and enforce, at the request of Buyer, at the cost
of and for the account of Buyer, any rights of Seller and the Foreign
Subsidiaries arising from any such Unassigned Contract (including, without
limitation, the right to elect to terminate in accordance with the terms thereof
upon the request of Buyer)."
17. Amendment to Section 1.9. The following shall replace Section
------------------------
1.9 of the Purchase Agreement:
"1.9 Further Assurances
Seller and the Foreign Subsidiaries from time to time after the
Closing at the request of Buyer and without further consideration shall execute
and deliver such further instruments of transfer and assignment and take such
other action as Buyer may reasonably require to more effectively transfer and
assign to, and vest in, Buyer good title, subject to Permitted Encumbrances (as
defined in paragraph 13.1 hereof), to each of the Subject Assets and the Foreign
Assets."
18. Amendment to Section 1.10. The following shall replace Section
-------------------------
1.10 of the Purchase Agreement:
"1.10 Allocation of Purchase Price
The Purchase Price shall be allocated among the Subject Assets and the
Foreign Assets as set forth on Schedule 1.10 hereto (the "Allocation"). The
Allocation shall be adjusted downward or upward, as the case may be, as
appropriate to reflect any adjustments in the Purchase Price pursuant to
paragraph 1.4(c). Seller and Buyer agree that they shall file Internal Revenue
Service Form 8594, and all income tax returns and other documents that they may
be required to file on a basis that is consistent with the Allocation. Buyer
and Seller each agree to provide the other promptly with any other information
required to
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complete Form 8594. Buyer and Seller shall give prompt notice to each other of
the commencement of any tax audit or the assertion of any proposed deficiency or
adjustment by any taxing authority which challenges the Allocation."
19. Amendment to Schedule 1.10. Schedule 1.10 to the Disclosure
--------------------------
Statement is hereby deleted and replaced in its entirety with Annex III attached
hereto.
20. Amendment to Section 1.11. The following shall replace Section
-------------------------
1.11 of the Purchase Agreement:
"1.11 Sales and Transfer Taxes
Buyer shall be liable for and shall pay at the time of Closing all
federal, foreign and state sales taxes and all other sales taxes, duties,
documentary stamps, transfer taxes, registration fees and charges or other like
charges (the "Sales and Transfer Taxes") properly payable upon and in connection
with the assignment and transfer of the Subject Assets by Seller and the Foreign
Assets by the Foreign Subsidiaries to Buyer hereunder. If any Sales and
Transfer Taxes become payable subsequent to Closing, Buyer shall be liable and
shall pay immediately upon the imposition of such Sales and Transfer Taxes."
21. Amendment to Schedule 2.6. Schedule 2.6 to the Disclosure
-------------------------
Statement is hereby deleted in its entirety and replaced with Annex X hereto.
22. Amendment to Section 2.7. The following shall replace Section
------------------------
2.7 of the Purchase Agreement:
"2.7 Contracts
The Disclosure Statement sets forth (i) the Contracts with the top
four Industrial Customers by dollar volume for the first six months of 1994 and
(ii) any Contracts with the top 20 suppliers to the Industrial Distribution
Business by dollar volume for the year ended December 31, 1994 which obligate
Seller to purchase specified levels of products on a "take or pay,"
"requirements" or similar basis. None of the Foreign Contracts would constitute
(i) a Contract with one of the top four Industrial Customers of Xxxxxx
Healthcare Corporation and its Affiliates by dollar volume for the first six
months of 1994 or (ii) a Contract with the top 20 suppliers to the Industrial
Distribution Business of Xxxxxx Healthcare Corporation or its Affiliates by
dollar volume for the year ended December 31, 1994. Except as set forth in the
Disclosure Statement, each of the Contracts listed or described in said Schedule
is in full force and effect and constitutes a valid and binding obligation of
Seller and, to Seller's knowledge, the other party or parties thereto. Neither
Seller nor, to Seller's knowledge, any other party to any such Contract has
breached or improperly terminated any such Contract, or is in default under any
such Contract, and,
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to the knowledge of Seller, there exists no condition or event which, after
notice or lapse of time or both, would constitute any such breach, termination
or default."
23. Amendment to Section 2.19. The following shall be added as
-------------------------
Section 2.19 of the Purchase Agreement:
"2.19 Inventory
All inventory (including, without limitation, all packaging) of the
Foreign Subsidiaries to be included on the Closing Statement of Assets and
Liabilities will be valued at the respective Foreign Subsidiary's then current
merchandise file costs and will be in new or saleable condition. The book value
of any excess and/or no-move Foreign Inventory shall be calculated in a manner
consistent with Seller's standard policies, including any associated reserves
for inventory write-downs."
24. Amendment to Section 5.6. The following shall replace Section
------------------------
5.6 of the Purchase Agreement.
"5.6 Release of Guaranties
Buyer agrees to be substituted in all respects for Seller or any of
its Affiliates, effective as soon as practicable after the Closing, in respect
of all obligations of Seller or any of its Affiliates under each of the
guaranties and letters of credit set forth in the Disclosure Statement
(collectively, the "Guaranties"). Buyer shall indemnify and hold harmless
Seller and its Affiliates against any and all liabilities under or with respect
to each of the Guaranties with respect to which substitution is not effected."
25. Amendment to Schedule 5.6. Schedule 5.6 to the Disclosure
-------------------------
Statement is hereby deleted and replaced in its entirety with Annex IV attached
hereto.
26. Amendment to Exhibit 7.1(j). Exhibit 7.1(j) of the Purchase
---------------------------
Agreement is hereby deleted in its entirety and replaced with Annex VIII.
27. Amendment to Exhibit 7.1(k). Exhibit 7.1(k) of the Purchase
---------------------------
Agreement is hereby deleted in its entirety and replaced with Annex IX hereto.
28. Amendment to Section 13.1. The following definitions shall be
-------------------------
added in the appropriate alphabetical order:
"Distributed Products" shall have the meaning set forth in Section
1.3.2 of the Services Agreement.
"Foreign Excluded Assets" shall mean any assets, properties or
interests in assets or properties of the nature described in: (1) clauses (i)
through (xvii) of Section 1.1(b)
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of this Agreement regardless of whether such assets, properties or interests are
owned or held by Seller, the Foreign Subsidiaries or any of their affiliates; or
(2) clauses (i) through (iii) of Section 1.12 of this Agreement for those
assets, properties or interests relating exclusively to Ireland."
"Foreign Industrial Distribution Business" shall mean the business of
the Foreign Subsidiaries in distributing to Industrial Customers general
laboratory equipment and supplies, it being understood that the Industrial
Distribution Business shall not be deemed to include the biomedical group of
Xxxxxx Healthcare Corporation's Hospital Supply/Scientific Products U.S.
Distribution Division, any business, products or assets that historically have
not been included within the financial statements of Xxxxxx Healthcare
Corporation's Industrial and Life Sciences Division, or any business products or
assets constituting Foreign Excluded Assets."
"Foreign Subsidiaries" shall mean Xxxxxx Healthcare Limited, a United
Kingdom corporation; Xxxxxx Export Corporation, a Nevada corporation; Xxxxxx
Healthcare Pty. Ltd., an Australia corporation; Xxxxxx, X.X., a Belgium
corporation; Xxxxxx X.X., a France corporation; Baxter Deutschland GmbH, a
Germany corporation; Baxter S.p.A., an Italy corporation; Xxxxxx Healthcare Far
East Pte Ltd., a Singapore corporation; Xxxxxx X.X., a Switzerland corporation;
Laboratorios Xxxxxx X.X., a Delaware corporation; Xxxxxx X.X., a Spain
corporation; and Xxxxxx Healthcare Ltd. Taiwan, a Taiwan corporation.
"Ireland" shall mean the Republic of Ireland and Northern Ireland.
29. Amendment to Section 13.2. The following cross-references shall
-------------------------
be added in the appropriate alphabetical order:
"Term Reference
---- ---------
Distributed Products 13.1
Foreign Assets 1.12
Foreign Assumed Liabilities 1.13
Foreign Contracts 1.12
Foreign Excluded Assets 13.1
Foreign Industrial Distribution Business 13.1
Foreign Inventory 1.12
Foreign Purchase Price 1.4(d)
Foreign Subsidiaries 13.1"
30. Amendment to Exhibit 1.6(b). Exhibit 1.6(b) of the Purchase
---------------------------
Agreement is hereby deleted in its entirety and replaced with Annex VII hereto.
31. Addition of Exhibit 1.6(c). Annex V hereto shall be added as
--------------------------
Exhibit 1.6(c) of the Purchase Agreement.
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32. Addition of Exhibit 1.6(d). Annex VI hereto shall be added as
--------------------------
Exhibit 1.6(d) of the Purchase Agreement.
33. Corporate Authority. Each of Seller and Buyer hereto represents
-------------------
and warrants to the other that (a) it has the requisite corporate power and
authority to execute, deliver and perform this Amendment, (b) its execution,
delivery and performance of this Amendment has been duly authorized by all
necessary corporate action on the part of such party, (c) it has duly executed
and delivered this Amendment and (d) assuming the due authorization, execution
and delivery of this Amendment by the other party hereto, this Amendment
constitutes its valid and binding obligation, enforceable against such party in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or similar laws from time to time in effect that affect
creditors' rights generally and by legal and equitable limitations on the
availability of specific remedies (whether at law or in equity).
34. Governing Law. This Amendment shall be governed by and construed
-------------
in accordance with the internal laws of the State of Illinois, without giving
effect to the principles of conflicts of laws thereof.
35. Execution in Counterparts. This Amendment may be executed in
-------------------------
counterparts, each of which shall be considered an original instrument, but both
of which shall be considered one and the same agreement, and shall become
binding when one counterpart has been signed by each of the parties hereto and
delivered to the other party hereto (including by means of facsimile
transmission of signature pages).
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
VWR CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
XXXXXX HEALTHCARE CORPORATION
By /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Vice President
Strategic Initiatives
EM LABORATORIES, INCORPORATED
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
Vice President and General
Counsel
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