AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
The parties to this Amendment No. 1 (this "Amendment"), dated as of
December 30, 1998, are Xxxxx Xxxxxx, Inc., a Delaware corporation, New River
Management Company, L.L.C., a Virginia limited liability company, Chiron
Corporation, a Delaware corporation, and Biological & Popular Culture, Inc., a
Delaware corporation.
WHEREAS, the parties hereto entered into a Stock Purchase Agreement,
together with the schedules related thereto (the "Agreement"), dated as of
December 8, 1998;
WHEREAS, the parties wish to amend the Agreement in the manner set
forth herein.
Accordingly, the parties agree as follows:
ARTICLE I
AMENDMENTS TO AGREEMENT AND SCHEDULES
1.1. Schedule 1.07: Assets.
Schedule 1.07 shall be amended to add the items set forth on
Schedule A attached hereto.
1.2. Article I.
Article I shall be amended by the addition of a new Section 1.85, as
set forth below:
"Section 1.85. GIV Benevolent Fund Real Property.
'GIV Benevolent Fund Real Property' shall mean the real property
owned or leased by the G.I.V. Benevolent Fund, Inc., together with any
improvements located thereon, including all appurtenant rights, claims and
interests."
1.3. Schedule 1.61: Permits.
Schedule 1.61 shall be amended to add the items set forth on
Schedule B attached hereto.
1.4. Schedule 1.62: Permitted Liens.
Schedule 1.62 shall be amended to add the items set forth on
Schedule C attached hereto.
1.5. Schedule 1.70.
Schedule 1.70 shall be amended to add the item set forth on Schedule
D attached hereto.
1.6. Schedule 1.73: Restructuring.
Schedule 1.73 and Exhibit A attached thereto shall be amended and
restated as set forth on Schedule E attached hereto. Original Exhibits B, C, D,
E and F to Schedule 1.73 shall remain unchanged.
1.7. Section 2.07: New Products Earn-Out.
Section 2.07 shall be amended by inserting the words "and its
Affiliates" immediately after the phrase "Revenues of the Purchaser" in each
place that such phrase appears in Section 2.07.
1.8. Schedule 3.05: Organization.
Schedule 3.05 shall be amended and restated as set forth on Schedule
F attached hereto.
1.9. Schedule 3.06: Continuing and Excluded Subsidiaries.
Schedule 3.06 shall be amended and restated as set forth on Schedule
G attached hereto.
1.10. Schedule 3.07: No Adverse Change.
Schedule 3.07 shall be amended and restated as set forth on Schedule
H attached hereto.
1.11. Schedule 3.08: No Litigation.
Schedule 3.08 shall be amended to add the items set forth on
Schedule I attached hereto.
1.12. Schedule 3.12: Contracts.
Schedule 3.12 shall be amended to add the items set forth on
Schedule J attached hereto.
1.13. Section 3.19 and Schedule 3.19: Employee Benefit Plans.
Section 3.19(k) shall be amended to add the phrase "Except as set
forth in Schedule 3.19," at the beginning of the first sentence thereof and
Schedule 3.19 shall be amended to add the item set forth on Schedule K attached
hereto.
1.14. Section 3.24.
Section 3.24 shall be amended in its entirety as set forth on
Schedule L attached hereto.
1.15. New Section 3.31.
Article III shall be amended by the addition of a new Section 3.31
as set forth below:
"Section 3.31. Fen-Phen Claims.
At all times since November 19, 1989 that the Company or the Continuing
Subsidiaries have engaged in any business with respect to fenfluramine or
phentermine, including without limitation the repackaging and distribution
thereof, all properties and operations of the Company and the Continuing
Subsidiaries have been insured pursuant to general liability insurance policies
with coverage amounts of not less than (A) $1,000,000 from November 19, 1989
through November 19, 1990, (B) $5,000,000 from November 19, 1990 through
November 19, 1991, (C) $10,000,000 from November 19, 1991 through November 19,
1992, and (D) $20,000,000 since November 19, 1992, which have not and do not
exclude coverage for claims relating to fenfluramine or phentermine. Neither the
Sellers, the Company, the Continuing Subsidiaries nor their directors or
officers have taken any action which would make unavailable to he Company or any
Continuing Subsidiaries (i) insurance coverage with respect to claims relating
to fenfluramine or phentermine, or (ii) indemnification rights which the Company
or the Continuing Subsidiaries could otherwise assert against manufacturers or
suppliers of fenfluramine or phentermine with respect to claims relating to
fenfluramine or phentermine."
1.16. Section 5.07: Supplemental Disclosure.
Section 5.07 shall be amended by deleting the term "Article VII" and
replacing it with the term "Article VI":
1.17. Section 5.09: New River Dissolution.
Section 5.09 shall be amended by deleting the term "5.08" in each
place that it appears and replacing it with the term "5.09."
1.18. Exhibit 6.02(d): Software Use License Agreement.
Exhibit 6.02(d) shall be amended by deleting the term "6.02(d)" and
replacing it with the term "6.02(c)."
1.19. Section 9.02: Indemnification.
Section 9.02(a) shall be amended by deleting the word "or"
immediately preceding the term "(ix)", and inserting immediately following the
word "Restructuring" at the end of the paragraph the following:
"; or (x) the matters set forth in Item 8 of Schedule 3.08 or any of
the facts and circumstances underlying such matters."
1.20. Section 9.03: Limitations on Indemnification.
Section 9.03(a) shall be amended by deleting the term "(ix)" and
replacing it with the term "(x)".
ARTICLE II
MISCELLANEOUS
2.1. No Other Amendments.
Other than as expressly set forth herein, the Agreement remains
unaltered and in full force and effect.
2.2. Counterparts.
This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same amendment.
2.3. Governing Law.
This Amendment shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia without regard to its conflicts of laws
principles or rules.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed as of December 30, 1998.
XXXXX XXXXXX, INC.
By:______________________________
Xxxxxxx Xxxxxxxx
Vice President
NEW RIVER MANAGEMENT COMPANY, L.L.C.
By:______________________________
Xxxxxx X. Xxxx
Manager
CHIRON CORPORATION
By:______________________________
Xxxxxxx X. Xxxxx
Senior Vice President,
General Counsel & Secretary
BIOLOGICAL & POPULAR CULTURE, INC.
By:______________________________
Xxxxxx X. Xxxx
Chief Executive Officer
The undersigned agrees to the foregoing and agrees and acknowledges that
the execution of this amendment neither amends nor modifies in any manner the
terms and provisions set forth on the signature page to the Agreement executed
by the undersigned, which terms and provisions will remain in full force and
effect in accordance with their terms and with respect to the Agreement.
_________________________
Xxxxxx X. Xxxx
Schedule A
----------
SCHEDULE 1.07
ASSETS
Personal Property Leases
------------------------
71. Two-Tier Lease between GIV and United Telephone-Southeast, Contract Number
2056-93.
72. Two-Tier Lease between GIV and United Telephone-Southeast, Contract Number
1532057.
73. Two-Tier Lease between Lotus Biochemical Corporation (now RMC) and United
Telephone-Southeast, Contract Number 1532058.
Schedule B
----------
SCHEDULE 1.61
PERMITS
GIV
---
22. Commonwealth of Virginia, Department of Health Professions, Board of
Pharmacy -- Wholesale Distributor Licenses (2) expiring December 31, 1999.
23. State of Illinois, Department of Professional Regulation -- Controlled
Substance and Wholesale Drug Distributor Licenses expiring December 31,
2000.
24. New Mexico State Board of Pharmacy -- Wholesaler License expiring December
31, 1999.
25. State of Maryland, Department of Health and Mental Hygiene, Maryland Board
of Pharmacy -- Distributor Permit expiring December 31, 1999.
26. Arkansas State Board of Pharmacy -- Wholesale Drug Distributor's License
for 1999.
27. South Dakota Board of Pharmacy -- Wholesale Drug Distributor License
expiring December 31, 1999.
Insource
--------
29. Commonwealth of Virginia, Department of Health Professions, Board of
Pharmacy -- Wholesale Distributor Licenses (2) expiring December 31, 1999.
30. Louisiana State Board of Wholesale Drug Distributors -- Manufacturer
Distributor or Wholesale Distributor of Legend Drugs License expiring
December 31, 1999.
31. State of Illinois, Department of Professional Regulation -- Controlled
Substance and Wholesale Drug Distributor Licenses expiring December 31,
2000.
32. Iowa Board of Pharmacy Examiners -- Wholesale Drug License expiring
December 31, 1999.
33. North Carolina Department of Agriculture, Food and Drug Protection Division
-- Prescription Drug Wholesaler Registration expiring December 31, 1999.
Radford
-------
2. Commonwealth of Virginia, Department of Health Professions, Board of
Pharmacy -- Wholesale Distributor License expiring December 31, 1999.
RLA (d/b/a Packall International, Inc.)
---------------------------------------
1. Commonwealth of Virginia, Department of Health Professions, Board of
Pharmacy -- Restricted Manufacturing Permit expiring December 31, 1999.
Schedule C
----------
SCHEDULE 1.62
PERMITTED LIENS
The First National Bank of Bluefield
Operative Document: $2,000,000 Note dated September 2, 1993, payable to First
National Bank of Bluefield by GIV.
Evidence of Encumbrance: Credit Line Deed of Trust dated September 2, 1993, by
and among GIV and RLA (grantors), Xxxxxxxx X. Xxxxxx, Xx. and Xxxxxxx X.
Xxxx (trustees), and First National Bank of Bluefield (beneficiary).
Collateral: Two parcels of real property located at (i) Xxxxx 00-00 xx Xxxxxxx,
Xxxxxxxx 00000, and (ii) Xxxxx 000 xx Xxxxx Xxxxxx, Xxxxxxxx 00000.
Xxxxxx X. Xxxx
Operative Documents: $55,000 Note dated February 11, 1983, payable to Xxxxxx X.
Xxxx by Xxxxxx X. Xxxx; General Warranty Deed dated January 24, 1992, by
and between Xxxxxx X. Xxxx and Xxxxx X. Xxxx (grantors) and GIV (grantee)
recorded in the Clerk's Office of the Circuit Court of Xxxxx County,
Virginia in deed book 107, page 213; $38,459.25 Note dated January 24,
1992, payable to Xxxxxx X. Xxxx by GIV.
Evidence of Encumbrance: Credit Line Deed of Trust dated February 11, 1983, by
and among Xxxxxx X. Xxxx and Xxxxx X. Xxxx (grantors), A. Xxxxxxx Xxxxxx
(trustee), and Xxxxxx X. Xxxx (beneficiary).
Collateral: Lot and Xxxx Building located in Xxxxx County, Virginia.
Schedule D
----------
SCHEDULE 1.70
REAL PROPERTY
Lease Agreement, dated June 22, 1998, by and between G.I.V. Benevolent
Fund, Inc. and GIV with respect to the lease of real property and warehouse
located at The Lord's Storehouse, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
Schedule E
----------
SCHEDULE 1.73
RESTRUCTURING
Exhibit A attached hereto contains a list of abbreviations used in this Schedule
1.73 and the associated exhibits. Exhibits B and C are forms of purchase
agreements to be used to transfer assets and stock from the Company to LLC or
its Subsidiaries or Affiliates. Capitalized terms used in this Schedule 1.73 and
not otherwise defined have the meanings assigned in the Stock Purchase Agreement
to which this Schedule 1.73 is attached.
The Restructuring will be accomplished through the following steps:
1. Xxxxxx, Zurich, and Biopop Media had been previously liquidated into Biopop
prior to and independent of this transaction pursuant to the respective
Certificates of Dissolution by Directors and Vote of Stockholders,
Certificate of Dissolution, and Certificate of Withdrawal, copies of which
have been delivered to the Purchaser.
2. RHB and RME had been previously liquidated into RMC prior to and
independent of this transaction pursuant to the respective Articles of
Termination of Corporate Existence and Articles of Dissolution, copies of
which have been delivered to the Purchaser.
3. GIV has purchased the assets held under certain capital and operating
leases, which leases are collectively listed on Exhibit D attached hereto
and the purchase of which is reflected in the Pro Forma Closing Balance
Sheet.
4. LLC has organized a new corporation, BCCX.
5. PBX/EX will change its name to BPCX.
6. LLC will form a new corporation to be named New PBX/EX.
7. Immediately prior to step 8 and as a condition precedent thereto, GIV will
declare and pay a dividend to Biopop in the form of the demand note held by
GIV and payable by the G.I.V. Benevolent Fund, Inc. The loss arising out of
the dividend of the indebtedness (but not any increase in basis of a
Subsidiary as a result of the later contribution of the indebtedness to the
capital of such Subsidiary) shall not be taken into account in determining
the amounts of "liability for Taxes arising out of relating to the
Restructuring" within the meaning of Section 9.02(a)(iii).
8. Immediately prior to step 9 and as a condition thereto, Biopop will
contribute the note it received in the form of a dividend in step 7 to the
capital of Landmark. No additional shares of Landmark will be issued.
9. Immediately prior to step 10 and as a condition precedent thereto, Biopop
will change its name to GIV Holdings.
10. Immediately prior to step 11 and as a condition precedent thereto, GIV
Holdings will contribute any open account intercompany receivable from
Biopop (Asia), Biopop (Bermuda), BCC, Biofix, and Biopop Export that is
greater in amount than the amounts to repaid as shown in step 20 to the
capital of the respective companies.
11. Immediately prior to step 12 and as a condition precedent thereto, LLC will
purchase the stock of Biopop (Asia) and Biopop (Bermuda) from GIV Holdings,
in exchange for short-term notes payable in the amounts of $20,200 and
$272,500, respectively, and in the form attached hereto as Exhibit E.
12. Immediately prior to step 13 and as a condition precedent thereto, BCCX
will purchase the stock of Landmark, BCC, Biofix, and Biopop Export from
GIV Holdings, in exchange for short-term notes payable in the amounts of
$2,230,000, $500,000, $41,300 and $2,500 respectively, and in the form
attached hereto as Exhibit E. BCCX and GIV Holdings may, at BCCX's
election, join in making elections under Section 338(h)(10) of the Code
with respect to one or more of such stock transfers in accordance with
Section 8.01(a) of the Agreement.
13. Immediately prior to step 14 and as a condition precedent thereto, NEW
PBX/EX, BCCX, BPCX, and Lotus (US) (but as to Lotus (US), only with respect
to the assignment of certain agreements that inadvertently may not have
been transferred from RMC to Lotus (US) on September 11, 1996 and were
included in the valuation of such transaction at September 11, 1996) will
purchase the assets of GIV valued at $991,481 and RMC valued at $614,941,
which assets are included on Schedule 1.07 attached to the Agreement
(including the note at the end thereof)(generally being fixed assets,
software, and other intellectual property), in exchange for short-term
notes payable totaling $1,606,422 in the form attached hereto as Exhibit E.
The amount payable by each of NEW PBX/EX, BCCX, and BPCX will be determined
prior to Closing.
14. Immediately prior to step 15 and as a condition precedent thereto, LLC will
assume a lease dated November 1, 1995, by and between Weston Management
Company and Tennessee Laboratory Acquisition Corp. (now NBS) for real
property located in Memphis, Tennessee that is currently an obligation of
NBS.
15. Immediately prior to step 16 and as a condition precedent thereto, Chiron
will convert its preferred stock, plus accrued and unpaid dividends, into
30 percent of the issued and outstanding shares of GIV Holdings common
stock in accordance with the Certificate of Designation of Biopop's (now
GIV Holdings') Series A Preferred Stock.
16. Purchaser will acquire 100 percent of the common stock of GIV Holdings from
LLC and Chiron in exchange for cash and other consideration as provided in
Article II of the Stock Purchase Agreement.
17. Simultaneously with the consummation of the purchase of the Common Stock at
the Closing, an aggregate of $12,217,535.47, plus additional accrued
interest at the rate of $1,639.99 per diem during the period from and
including December 16, 1998 and including the Closing Date (provided that
if the Closing Date occurs later than December 31, 1998, the per diem
interest rate would change for the period subsequent to that date as
provided for in the Subordinated Promissory Note), will be paid to Chiron
in full payment and discharge of the Subordinated Promissory Note, dated
September 11, 1996, made by Biopop, GIV, Insource, RLA, Xxxx, RMC, RME, and
GIV Real Estate Development Corporation to Chiron and any and all amounts
due under the Prepayment Agreement, dated September 11, 1996 (collectively,
the "Chiron Debt"). The payment of the Chiron Debt will be funded by the
loan in the amount of $12,217,535.47, plus the additional accrued interest
at the above per diem rate, by Purchaser to GIV or GIV Holdings pursuant to
the promissory note in the form attached hereto as Exhibit F. Chiron, LLC,
Xxxx, and any other parties thereto shall cause each of the agreements
listed on Schedule 11.10 to the Agreement to be terminated in accordance
with Section 11.10 of the Agreement, and Chiron and the other parties to
such termination agreements will take all of the actions to be taken at the
Closing thereunder.
18. Simultaneous with the Closing, Biopop (Bermuda) and GIV will execute and
deliver the Termination of License Agreement instruments in form and
substance reasonably satisfactory to the Purchaser, and Biopop (Bermuda)
and GIV will take all of the actions to be taken at the Closing thereunder.
19. Immediately following step 18, LLC will transfer cash to each of NEW
PBX/EX, BCCX, BPCX, Biopop (Asia), Biopop (Bermuda), and Lotus (US) to
allow each of them to meet its obligations as described in step 20. Further
transfers are made from BCCX to Landmark, BCC, Biofix, and Biopop Export to
allow each of them to meet it obligations as described in step 20.
20. Immediately following step 19, LLC, NEW PBX/EX, BPCX and BCCX will repay
the short-term notes issued in steps 11, 12, and 13. In addition, the
following entities will repay the outstanding open balances on intercompany
accounts to GIV Holdings and/or the Continuing Subsidiaries as listed
below:
Payable From Payable To Amount
------------ ---------- ------
Lotus (US) GIV Holdings $149,900
Lotus (US) GIV 14,307
Lotus (US) RMC 106,598
LLC GIV Holdings 1,301
Biopop (Bermuda) GIV Holdings 495,015
Landmark GIV Holdings (1)
Biofix GIV Holdings 32,353
BCC GIV Holdings 362,547
Biopop Export GIV Holdings 3,067
Biopop (Asia) GIV Holdings 59,811
(1) This amount shall equal the sum of any outstanding open balances on
intercompany accounts payable to GIV Holdings and/or the Continuing
Subsidiaries by Landmark on the business day immediately prior to the
Closing Date.
It is specifically understood that the amounts to be repaid at Closing do
not include the $1.9 million note dated September 11, 1996, payable to
Resolve Medical Marketing, Inc. (now RMC) by Lotus (US) and the $4.7
million note dated December 28, 1993, payable to GIV by RSR Acquisition
Corp. (now King Pharmaceuticals, Inc.).
Exhibit A
Alphabetic Listing of Company and Other Abbreviations and Names
Abbreviation Company or Other Name
BCC BioClinical Concepts, Inc.
BCCX BCCX, Inc.
BPCX BPCX, Inc.*, formerly PBX/EX, as defined below.
Biofix Biofix, Inc.
Biopop Biological & Popular Culture, Inc.
Biopop (Asia) Biological & Popular Asia Pte Ltd.
Biopop (Bermuda) Biological & Popular (Bermuda) Ltd.
Biopop Export Biopop Export Corporation
Chiron Chiron Corporation
GIV General Injectables & Vaccines, Inc.
GIV Holdings GIV Holdings, Inc.*
Insource Insource, Inc.
Xxxx Xxxxxx X. Xxxx
Landmark Landmark Scientific, Inc.
LLC New River Management Company, L.L.C.
Lotus (Bermuda) Lotus Biochemical (Bermuda) Ltd.
Lotus Export Lotus Export Corporation
Lotus Tech Lotus Technologies (Bermuda) Ltd.
Lotus (Mexico) Lotus Biochemical de Mexico, S.A. de C.V.
Lotus (US) Lotus Biochemical Corporation
NBS National BioStudios, Inc.
New PBX/EX PBX/EX, Inc.
PBX/EX PBX/EX, Inc., formerly Chelation Sciences, Inc.
(Name change was effective June 19, 1998.)
Xxxxxxx Xxxxxxx Therapeutics, Inc.
RLA Xxxx Laboratories America
Xxxx Xxxx Laboratories, Inc.
RMC Resolve Medical Corporation
Zurich Zurich Information Systems, Inc.
* Indicates a future name of an existing corporation. It is assumed that such
names will be available upon filing for such changes.
Schedule F
----------
SCHEDULE 3.05
ORGANIZATION
State of States in
Incorporation Which Qualified
{Biopop}* DE VA
GIV VA NC, TN
Insource VA NC
NBS TN VA
RMC VA
Xxxx VA
Radford DE VA
RLA (VA partnership)
Lotus Mexico (Mexico)
*The Company will be renamed prior to Closing. The name "Biological & Popular
Culture, Inc." will be retained by one of the Sellers. Purchaser will acquire
the renamed Company entity.
Schedule G
----------
SCHEDULE 3.06
CONTINUING AND EXCLUDED SUBSIDIARIES
Continuing Subsidiaries
-----------------------
GIV
Insource
NBS
RMC
Xxxx
Xxxxxxx
RLA
Lotus Mexico
Excluded Subsidiaries
Landmark Scientific, Inc.
BioClinical Concepts, Inc.
Biofix, Inc.
Biopop Export Corporation
Biological & Popular Asia Pte Ltd.
Biological & Popular (Bermuda) Ltd.
Schedule H
----------
SCHEDULE 3.07
NO ADVERSE CHANGE
(b) GIV and Insource paid $283,754 in connection with vaccine losses due to
shutdown of a refrigeration unit, which amount was expensed and reflected
in the Pro Forma Closing Balance Sheet and Pro Forma Income Statements and
which is the subject of the matter set forth in item 6 on Schedule 3.08.
-------------
Schedule I
----------
SCHEDULE 3.08
LITIGATION
7. Request that Insource defend and indemnify DRX Pharmaceutical Consultants,
Inc., a defendant in Xxxxxxxx v. Enrich International, Inc., et al. filed
in the San Francisco City and County Superior Court (No. 993535) and
transferred to the Los Angeles County Superior Court (JCCP No.
4032)(Complaint for personal injuries that allegedly resulted from
ingestion of the diet drug phentermine). Defendant's insurance carrier
alleges that Insource distributed phentermine to defendant and seeks to
have Insource defend and indemnify defendant in this diet drug litigation.
8. New River received four letters, dated December 2, 1998, December 15, 1998,
December 23, 1998 and December 30, 1998, respectively, from Xxxxx, Xxxxxx &
Xxxxxxxxxx PLC on behalf of certain members of New River indicating that
such members may take legal action with respect to certain internal
governance issues of New River. Such letters accurately describe the
subject matter of the dispute with respect to such issues.
Schedule J
SCHEDULE 3.12
CONTRACTS
Real Property Leases
--------------------
2. Lease Agreement dated June 22, 1998, by and between G.I.V. Benevolent Fund,
Inc. and GIV.
Loans (Borrowing or Lending) in Excess of $50,000
-------------------------------------------------
5. $1,000,000 Note dated June 30, 1995, payable to GIV by G.I.V. Benevolent
Fund, Inc.
Guaranty and Indemnification Agreements
---------------------------------------
5. Deed of Trust Note executed July 29, 1993, by and among First Virginia Bank
-- Southwest, G.I.V. Benevolent Fund, Inc. and GIV.
6. Guaranty Agreement dated June 8, 1998, by and between First Virginia Bank
-- Southwest and GIV.
Other Agreements Involving Amounts in Excess of $50,000
-------------------------------------------------------
Customer Contracts
------------------
80. Agreement dated December 1, 1998, by and between PharmaCare Dynamic
Management Corporation and Insource.
81. Agreement dated January 1, 1999 and effective December 1, 1998, by and
between Keystone Pharmacy Purchasing Alliance, Inc. and Insource.
82. Agreement dated December 18, 1998, by and between Xxx Medical
International, Inc. and Insource.
83. Amendment No. 1 to Bid Agreement dated January 1, 1998, by and between the
State of Tennesee and GIV.
Vendor Contracts
----------------
52. Price Agreement Volume Purchase, effective September 1, 1998, by and
between Xxxxxx-Field, Inc. and GIV.
53. Contract Pricing Agreement, term commencing December 15, 1997, by and
between Quidel Corporation and GIV.
54. Medical Distributor Price Guide -- Tidi Brand, effective June 8, 1998, by
and between Xxxxx Healthcare Products and GIV.
Supply and Service Contracts
----------------------------
Item 5 shall be deleted and replaced with the following:
5. National Account Agreement dated June 15, 1998, by and between Federal
Express and GIV.
Schedule K
----------
SCHEDULE 3.19
EMPLOYEE BENEFIT PLANS
Only the following applies to the exception in the first sentence of Section
3.19(k):
Payments Triggered by Restructuring
-----------------------------------
If the Closing occurs on or before December 31, 1998, certain payment
obligations by GIV to Doit X. Xxxxxxx, XX, Xxxxxx X. Xxxxxx and Xxxxx X. Short
will be triggered under executive employment agreements, each dated February 25,
1998.
Schedule L
----------
Section 3.24. Environmental Matters.
----------------------
Except as set forth on Schedule 3.24, (i) the Company, the Continuing
Subsidiaries and G.I.V. Benevolent Fund, Inc., are in material compliance with
all applicable Environmental Laws; (ii) the Company, the Continuing Subsidiaries
and G.I.V. Benevolent Fund, Inc., have all Permits required by the Environmental
Laws necessary for the operation of the businesses of the Company and G.I.V.
Benevolent Fund, Inc., and the use of the Asset and the GIV Benevolent Fund Real
Property, taken as a whole, as currently being conducted, and is in compliance
with all such Permits; (iii) there has been no Release or threatened Release of
Hazardous Substances at or shipment of Hazardous Substances from the Real
Property or the GIV Benevolent Fund Real Property or from current or previously
owned or operated real property that would result in liability under the
Environmental Laws or that required or with the passage of time is likely to
require reporting to any governmental regulatory agency or entity; (iv) no
Hazardous Substances or underground or above-ground storage tank is contained in
or located at, in, on or under any Real Property owned by the Company or the
Continuing Subsidiaries or the GIV Benevolent Fund Real Property, except for
such Hazardous Substances as are used, stored or maintained in the ordinary
course of the Business and in full compliance with applicable Environmental
Laws; (v) neither the Company, any of the Continuing Subsidiaries nor G.I.V.
Benevolent Fund, Inc. has received notice of any actual or threatened civil,
criminal or administrative suit, claim, action, proceeding or investigation
related to the Company, the Business, the Real Property or the GIV Benevolent
Fund Real Property or any currently or previously owned or operated real
property arising under any Environmental Laws; (vi) none of the Real Property,
the GIV Benevolent Fund Real Property, nor any currently or previously owned or
operated real property, is listed or proposed for listing on the National
Priorities List pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., or
any similar inventory of sites requiring investigation, monitoring or
remediation that is maintained by any state or locality; (vii) neither the
Company, any Continuing Subsidiary nor G.I.V. Benevolent Fund, Inc., will by
virtue of the Restructuring contractually or otherwise assume or succeed to,
and, to the Knowledge of the Sellers, neither the Company, any Continuing
Subsidiary nor G.I.V. Benevolent Fund, Inc., has otherwise contractually or
otherwise assumed or succeeded to, any environmental liabilities of any
predecessors or any other person or entity; (viii) none of the items set forth
on Schedule 3.24 are reasonably to be expected to have, individually or in the
aggregate, a Material Adverse Effect; and (ix) the Company and the Sellers have
provided to Purchaser all environmental reports, assessments, audits, studies,
investigation, data, environmental permits and other material written
environmental information respectively in their custody, possession or control
concerning the Real Property, the GIV Benevolent Fund Real Property or any
currently or previously owned or operated real property, the Assets and the
Business. This Section 3.24 shall be the only representation and warranty by the
Sellers with respect to environmental matters.
