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Exhibit (c)(4)
AMENDMENT NUMBER ONE TO THE STANDSTILL AGREEMENT
by and among
VWR CORPORATION,
EM INDUSTRIES, INCORPORATED
and
EM LABORATORIES, INCORPORATED
September 15, 1995
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AMENDMENT NUMBER ONE TO THE STANDSTILL AGREEMENT
This Amendment Number One to the Standstill Agreement (the
"Amendment") made this 15th day of September, 1995 by and among VWR Corporation
("VWR"), a Pennsylvania corporation, EM Industries, Incorporated ("EMI"), a New
York corporation, and EM Laboratories, Incorporated ("EM Laboratories"), a New
York corporation,
W I T N E S S E T H:
WHEREAS, EMI and VWR entered into a Standstill Agreement dated
February 27, 1995 (the "Standstill Agreement");
WHEREAS, pursuant to an Assignment and Assumption Agreement
dated April 13, 1995, and in conformity with Section 10.4 of the Standstill
Agreement, EMI assigned its rights and delegated its duties and obligations
under the Standstill Agreement to EM Laboratories and EM Laboratories accepted
such assignment and delegation; and WHEREAS, accordingly, all references to EMI
in the Standstill Agreement refer to EM Laboratories as assignee as well as to
EMI, and EMI and EM Laboratories are jointly and severally liable for the
performance of the obligations of EM Laboratories under the Standstill
Agreement;
WHEREAS, Section 10.5 of the Standstill Agreement provides
that the Standstill Agreement may be amended by a written agreement signed by
VWR and EMI; and
WHEREAS, VWR, EMI and EM Laboratories have agreed to amend the
Standstill Agreement as provided herein,
NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, and for other good and valuable consideration, the
parties agree that the Standstill Agreement shall be amended as of the date
hereof as follows:
SECTION. 1. To the Recitals there shall be added Recital D, which shall
read in its entirety as follows:
"D. Company and EMI have entered into a Common Share and Debenture
Purchase Agreement dated May 24, 1995, pursuant to which, among other
things, Company shall issue and sell to EMI additional Common Stock
(as defined below) of Company and a subordinated debenture (the
'Debenture')."
SECTION 2. To Article 1 there shall be added the following sentence,
which shall be set forth immediately after the caption "DEFINITIONS":
"Capitalized terms used but not defined herein shall have the meaning
set forth, as the case may be, in the Common Share and Warrant
Purchase Agreement (as defined below) or the Common Share and
Debenture Purchase Agreement (as defined below)."
SECTION 3. To Article 1 there shall be added the following definitions,
the other sections of Article 1 being renumbered accordingly, which new
definitions shall read in their entirety as follows:
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"1.3. Agreement. 'Agreement' means this Standstill Agreement, as it may
be from time to time modified, amended, altered or supplemented by written
agreement of the parties as provided in Section 10.5."
"1.10. Common Share and Debenture Purchase Agreement. 'Common Share and
Debenture Purchase Agreement' means the Common Share and Debenture
Purchase Agreement, dated May 24, 1995, between Company and EMI."
"1.31. Second Closing Date. 'Second Closing Date' means the date the
acquisition of the Common Stock and Debenture by Purchaser is
consummated pursuant to the terms of the Common Share and Debenture
Purchase Agreement."
SECTION 4. Section 1.10 of the Agreement shall be renumbered Section 1.12
shall be amended to read, in its entirety, as follows:
"1.12. Common Stock Equivalents. 'Common Stock Equivalents' means the
sum of the following, determined at any time during the term of this
Agreement: (a) the total number of shares of issued and outstanding
Common Stock, plus (b) the number of votes which may be cast for the
election of directors (whether directly or by formula) as a result of
ownership of any Voting Securities other than Common Stock; provided,
however, that the votes described in (b) above shall not be included in
Common Stock Equivalents until the Voting Securities other than Common
Stock are able to be voted for the election of directors."
SECTION 5. The second sentence of Section 2.2 shall be amended to read in
its entirety as follows:
"The 'Percentage Limitation' shall be 49.9% of the Common Stock
Equivalents."
SECTION 6. Section 2.7(e) shall be amended to read in its entirety as
follows:
"(e) If Company does not elect to purchase shares from Purchaser, or
elects to purchase only a portion of the shares under Section 2.7(b),
Purchaser shall be entitled to retain the shares over the Percentage
Limitation but the Percentage Limitation shall remain 49.9%."
SECTION 7. Section 2.10 shall be amended to read in its entirety as
follows:
"2.10 Requirements for Tender Offers. Whenever Purchaser shall make a
tender offer for shares of Common Stock under Section 2.9:
"(a) Purchaser shall not commence any such tender offer unless
acceptance of Purchaser's offer shall have been recommended to the
shareholders by a majority vote of the Unaffiliated Directors; and
"(b) Purchaser may not close the acquisition of the tendered shares
unless all of the following requirements have been satisfied:
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"(i) Purchaser's offer shall have been made to all holders of
Common Stock;
"(ii) Purchaser shall offer to purchase for cash all shares
tendered; and
"(iii) Purchaser's offer shall have been accepted by
shareholders owning not less than a majority of the outstanding Common
Stock.
"(c) With respect to calculating whether Purchaser's offer has been
accepted by shareholders owning a majority of the outstanding Common
Stock, Common Shares beneficially owned by Purchaser shall be excluded
from the outstanding Common Stock."
SECTION 8. Section 4.1(a) shall be amended so that the legend set forth
therein shall read in its entirety as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW AND ARE SUBJECT TO THE RESTRICTIONS ON DISPOSITION SET
FORTH IN AND TO THE OTHER PROVISIONS OF A COMMON SHARE AND WARRANTY
PURCHASE AGREEMENT, DATED FEBRUARY 27, 1995, BETWEEN VWR CORPORATION
AND EM INDUSTRIES, INCORPORATED, AND A COMMON SHARE AND DEBENTURE
PURCHASE AGREEMENT, DATED MAY 24, 1995, BETWEEN VWR CORPORATION AND EM
INDUSTRIES, INCORPORATED, AND A STANDSTILL AGREEMENT, DATED FEBRUARY
27, 1995, BETWEEN VWR CORPORATION AND EM INDUSTRIES, INCORPORATED, AS
AMENDED ON SEPTEMBER 15, 1995. COPIES OF SUCH AGREEMENTS ARE ON FILE AT
THE RESPECTIVE OFFICES OF VWR CORPORATION AND EM INDUSTRIES
INCORPORATED."
SECTION 9. Section 6.1 shall be amended to read in its entirety as follows:
"6.1. Size of Board; Proportionate Representation. (a) On or before the
Second Closing Date, the Company shall take all requisite action,
including without limitation increasing or decreasing the number of
seats on the Board, to grant EMI the right, at EMI's option, to
nominate such number of directors to the Board as shall ensure that EMI
shall have the right to maintain Board representation at all times
commensurate with the aggregate proportion of Common Shares owned by
EMI and its Affiliates.
"(b) At any time when EMI shall exercise its option to appoint
directors, as described in paragraph (a) above, the Company shall take
all requisite action to cause the election, effective immediately, of
the individuals designated by EMI to fill the number of seats on the
Board that shall be proportionate to the aggregate Common Share
ownership of EMI and its Affiliates."
SECTION 10. Section 6.2 shall be amended to read in its entirety as
follows:
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"6.2 Terms. EMI shall advise Company as necessary, from time to time,
which of the Affiliated Directors shall have a term expiring at the
second annual meeting of shareholders of Company next following the
Second Closing Date, and which shall have a term expiring at the third
such annual meeting. After the term of any Affiliated Director expires,
his or her successor shall serve a term of three (3) years as provided
in the Restated Articles of Incorporation of Company."
SECTION 11. Section 8.1(a) shall be amended to read in its entirety as
follows: "(a) Purchaser's completion of a tender offer in accordance
with Section 2.10, provided, that Purchaser's offer shall have been
recommended to the shareholders by a majority vote of the Unaffiliated
Directors and shall have been accepted by shareholders owning not less
than a majority of the outstanding Common Stock, as provided in such
Section; or".
SECTION 12. The proviso set forth in the second sentence of Section 10.4
shall be amended to read in its entirety as follows:
". . . provided, however, that EMI may assign its rights and delegate
its duties and obligations under this Agreement without such consent to
an Affiliate of EMI, which Affiliate (referred to herein as the
"Assignee") may, following duly authorized execution and delivery of an
agreement assuming the obligations of EMI hereunder reasonably
satisfactory to Company, accept title to the Shares and/or Warrant
Shares."
SECTION 13. This Amendment shall be exclusively governed by, construed in
accordance with, and interpreted according to the substantive law of the
Commonwealth of Pennsylvania without giving effect to the principles of
conflict of laws.
SECTION 14. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, VWR, EMI and EM Laboratories have caused this Amendment
to be executed on the date first above written.
VWR CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
EM INDUSTRIES, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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EM LABORATORIES, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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