AMENDMENT NO. 1 TO
PURCHASE AGREEMENT
THIS AMENDMENT NO. 1, dated as of August 31, 2000 (this
"Amendment"), to Purchase Agreement, dated as of July 7, 2000 (the
"Purchase Agreement"), by and among Viskase Companies, Inc., a
Delaware corporation ("Parent"), Viskase Corporation, a
Pennsylvania corporation ("Viskase"), Viskase Holding Corporation,
a Delaware corporation ("US Holdings"), Viskase Sales Corporation,
a Delaware corporation ("Sales"), Viskase Europe Limited, a company
organized under the laws of the United Kingdom ("Europe"), Viskase
S.A., a company organized under the laws of France ("Viskase
France"), Viskase Limited, a company organized under the laws of
the United Kingdom ("UK"), Viskase Canada Inc., a company organized
under the laws of Ontario ("Canada"), Viskase Chile Embalajes,
LTDA, a company organized under the laws of Chile ("Chile") and
Viskase Ireland Limited, a company organized under the laws of
Ireland ("Ireland") (Parent, Viskase, US Holdings, Sales, Europe,
Viskase France, UK, Canada and Ireland are each referred to herein
individually as "Seller" and collectively as "Sellers"), and Xxxxx
Company, Inc., a Missouri corporation ("Buyer"). The parties agree
that Chile is only signing to acknowledge that it will no longer be
a party to the Purchase Agreement.
W I T N E S E T H:
WHEREAS, Buyer, Sellers and Chile have previously entered
into the Purchase Agreement; and
WHEREAS, in order to set forth certain mutual agreements
with respect to the Purchase Agreement, the parties desire to enter
into this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. (a) In this Amendment, unless the
context shall otherwise require, a term defined in the Purchase
Agreement has the same meaning when used in this Amendment and a
term defined anywhere in this Amendment has the same meaning
throughout.
(b) Section 1.1 of the Purchase Agreement shall be
amended by deleting the definitions of "Asset Sellers," "Brazil
Transactions," "Escrow Account" and "Escrow Amount" in their
entirety and inserting the following definitions:
"Asset Sellers" means Viskase, Sales, UK, Canada and
Ireland.
"Brazil Transactions" means the transactions pursuant to
which Viskase Brazil will establish Newco Brazil through a split
under the laws of Brazil pursuant to which all of Viskase Brazil's
right, title and interest in and to the Purchased Assets and
Assumed Liabilities will be transferred to Newco Brazil.
"Escrow Amounts" means the Working Capital Escrow Amount
and the Brazil Escrow Amount.
(c) The following new definitions shall be added to
Section 1.1 of the Purchase Agreement to read as follows:
"Chile Rights" means all of the issued and outstanding
equity rights of Chile.
"UK Plan" means the Viskase Limited Pension Plan.
1.2. Interpretation. Each definition in this Amendment
includes the singular and the plural, and reference to the neuter
gender includes the masculine and feminine where appropriate.
References to any statute or regulation means such statute or
regulation as amended at the time and include any successor
legislation or regulations. The heading to the Articles and
Sections are for convenience of reference and shall not affect the
meaning or interpretation of this Amendment. Except as otherwise
stated, reference to Articles, Sections and Schedules mean the
Articles, Sections and Schedules of this Amendment.
ARTICLE II
PURCHASE AND SALE
2.1. Transfer of Assets.
(a) The introductory paragraph of Section 2.1 of the
Purchase Agreement shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
"Subject to the Permitted Encumbrances and the terms
and conditions of this Agreement, including Section 2.2,
Sellers will sell, convey, assign, transfer and deliver to
Buyer, or one or more Affiliates designated in writing by
Buyer, and Buyer, or one or more Affiliates designated in
writing by Buyer, will purchase, assume and acquire from
Sellers, all of each Seller's right, title and interest in
and to all of the assets used primarily in the Business,
including the following assets (but not including the
Excluded Assets) as they exist on the Closing Date (the
following assets of Sellers being the "Purchased Assets,"
it being understood that such term includes the assets of
Chile and the assets of Viskase Brazil to be transferred
to Newco Brazil on or before the Closing Date pursuant to
the Brazil Transactions):"
(b) Subsection (g) of Section 2.1 of the Purchase
Agreement shall be deleted in its entirety and the following
shall be substituted in lieu thereof:
"(g) Newco Brazil Shares and Chile Rights. All of
the Newco Brazil Shares and Chile Rights, in each case free
and clear of all Encumbrances."
2.2. Excluded Assets. Section 2.2 of the Purchase
Agreement shall be amended by adding the following as the final
sentence of that Section:
"Inventory of the Business located in Poland and Italy shall
also be Excluded Assets."
2.3. Chile and Brazil Matters. A new Section 2.5 shall
be added to the Purchase Agreement to read as follows:
"Section 2.5. Chile and Brazil Matters.
Notwithstanding anything contained herein to the contrary,
it is understood that (i) cash and cash equivalents in an
amount equal to 4.0 million reals of Viskase Brazil shall be
a Purchased Asset transferred to Newco Brazil as of the
Closing Date and shall be reflected as an asset on the
Valuation Date Statement and (ii) the accounts receivable of
Chile as of the Closing Date shall be Purchased Assets,
shall be indirectly owned by Buyer after the Closing Date in
connection with the acquisition by Buyer of the Chile Rights
and shall be included in the Valuation Date Statement.
Notwithstanding anything contained herein to the contrary,
it is understood that the payable as of the Closing Date
from Chile to Viskase Brazil shall remain outstanding after
the Closing Date and shall continue to be paid as originally
agreed. Viskase Brazil agrees that it will promptly pay to
Newco Brazil, when, as and if received from Chile, the
amount of such payable from Chile to Viskase Brazil, and
such payable from Chile and such receivable of Newco Brazil
from Viskase Brazil shall be reflected as a liability and an
asset, respectively, in equal amounts on the Valuation Date
Statement."
ARTICLE III
PURCHASE PRICE
Section 3.4 of the Purchase Agreement shall be deleted in
its entirety and the following shall be substituted in lieu
thereof:
"Section 3.4. Escrow. At the Closing Date, two escrow
accounts shall be established with the Norwest Bank
Minnesota, N.A. (the "Escrow Agent"). The escrow accounts
will consist of the following: (i) an amount equal to
$1,000,000 (the "Working Capital Escrow Amount") as security
for the purchase price adjustment set forth in Section 3.2
hereof and (ii) an amount equal to $30,611,000, $29,861,000
of which is payable to Sellers in respect of the sale of the
Newco Brazil Shares (the "Shares Escrow Amount") and
$750,000 of which may be paid to Sellers as Buyer's share of
withholding Taxes in Brazil pursuant to Section 8.2(a)(v)
hereof (the "Tax Escrow Amount" and, together with the
Shares Escrow Amount, the "Brazil Escrow Amount"). The
Working Capital Escrow Amount and the Shares Escrow Amount
are being paid out of the Closing Purchase Price and are
being paid to the Escrow Agent in lieu of being paid
directly to Sellers. The two escrow accounts shall be
established pursuant to agreements among the parties hereto
and the Escrow Agent in substantially the forms attached
hereto as Exhibit I (the "Escrow Agreements"). The Escrow
Amounts so delivered to the Escrow Agent and any other
property or cash, and any income earned with respect
thereto, from time to time held by the Escrow Agent pursuant
to the terms of the Escrow Agreements are herein referred to
as the "Escrow Fund." The Escrow Fund shall be held by the
Escrow Agent in escrow subject to the terms and conditions
of the Escrow Agreements. Buyer and Sellers agree to
cooperate in good faith and to use all commercially
reasonable efforts to disburse the Shares Escrow Amount as
soon as practicable."
ARTICLE IV
CLOSING
4.1. Payment on the Closing Date. Section 4.2 of the
Purchase Agreement shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
"Section 4.2. Payment on the Closing Date. Subject
to fulfillment or waiver (where permissible) of the
conditions set forth in Article IX, at the Closing Buyer
shall pay (a) Sellers an amount equal to the Closing
Purchase Price, minus (i) the Working Capital Escrow Amount,
(ii) the Shares Escrow Amount, and (iii) the amount of the
Cryovac Assignment Fee, by write transfer of immediately
available funds to the bank account or accounts specified by
Sellers, (b) the Escrow Agent, an amount equal to the Escrow
Amounts by wire transfer of immediately available funds to
the bank account specified by the Escrow Agent, to be held
in escrow pursuant to Section 3.4, and (c) Cryovac, Inc., an
amount equal to the Cryovac Assignment Fee, as payment of
such fee, by wire transfer of immediately available funds,
to the bank account specified by Cryovac, Inc. Without in
any way limiting Buyer's obligation to pay the Tax Escrow
Amount to Sellers in accordance with Section 8.2(a)(v)
hereof, the parties agree that Buyer will deduct the amount
of any withholding Taxes required as a result of the sale of
the Newco Brazil Shares (the "Brazil Withholding Tax
Liability") from the Shares Escrow Amount and that Buyer
will remit the Brazil Withholding Tax Liability to the
appropriate Governmental Body in Brazil."
4.2. Buyer's Additional Closing Date Deliveries. A new
Section 4.3(g) shall be added to read as follows:
"(g) An assignment of rights agreement of Chile, duly
executed by Buyer."
4.2. Sellers' Closing Date Deliveries. (a) Section
4.4(c) of the Purchase Agreement shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
"(c) The certificate (s) or other evidences of
ownership representing all of the Newco Brazil Shares and
the Chile Rights, duly endorsed to Buyer or accompanied by
duly executed stock powers or duly executed assignments, as
the case may be, to the extent required by and in accordance
with the laws of Brazil and Chile, respectively;"
(b) A new section 4.4(n) shall be added to read as
follows:
"(n) An assignment of rights agreement of Chile, duly
executed by US Holdings."
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
Section 5.16 of the Purchase Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
"5.16 Employee Benefits. Set forth on Schedule
5.16 is a list of all Pension Plans, Welfare Plans and any
other material employee benefit plans, including stock
purchase, stock option, bonus, incentive compensation and
deferred compensation plans, supplemental or executive
benefit plans, non-qualified retirement plans, severance or
separation plans, and any other material employee benefit
plans, practices, policies or arrangements of any kind,
whether written or oral, which are maintained by any Seller
for the benefit of any of its officers or employees
(including former employees) employed in the Business, or
under which any Seller has any current or potential
liability with respect to any employee or former employee of
the Business, (hereinafter collectively referred to as
"Plans"). Except as specifically disclosed on Schedule 5.16:
(a) Each Pension Plan and each Welfare Plan (and each
related trust, insurance contract or fund) is in compliance
in form and in operation in all material respects with all
applicable requirements of ERISA, the Code and any
applicable state law or regulation and, in relation to the
UK Plan only, in all material respects with all applicable
United Kingdom laws or regulations and European laws,
treaties or directives (except for the adoption of any
required amendments for which the remedial amendment period
has not expired as of the Closing Date). Each Pension Plan
and each Welfare Plan has been administered in all material
respects in accordance with its plan documents and the
applicable laws and regulations, and there has been no
material breach of fiduciary duty, prohibited transaction or
other event with respect to a Plan which is reasonably
likely to result in a material excise tax or other material
claim or liability against Sellers, any Plan or any
fiduciary of a Plan. The requirements of Code Section 4980B
and Parts 6 and 7 of Subtitle B of Title I of ERISA,
including but not limited to the provisions of said statutes
relating to COBRA continuation of health coverage, and any
similar requirement under any state or local law relating to
continuation of employee welfare benefits, have been
satisfied in all material respects with respect to each
Welfare Plan that is subject to such requirements.
(b) Each Pension Plan listed in Schedule 5.16 which
is intended to be a "qualified plan" for purposes of the
Code has received a favorable determination letter from the
Internal Revenue Service regarding its qualified status, and
nothing has occurred since the date such determination
letter was issued that would adversely affect such qualified
status, and the UK Plan is approved by the Commissioners of
Inland Revenue as an exempt approved scheme for the purposes
of Part I Chapter XIV Income and Corporation Taxes Act 1988
and is a contracted-out scheme for the purposes of the
Xxxxxxx Xxxxxxx Xxx 0000 on the "reference scheme test"
basis and nothing has occurred since the date such
determination letter was issued or such exempt approval was
granted or such contracted-out status was conferred (as
applicable) that would adversely affect such qualified or
exempt approved and contracted-out status.
(c) Each Pension Plan and each Welfare Plan is in
compliance in all material respects with the applicable
requirements for reporting and disclosure to participants
under ERISA or, in the case of the UK Plan only, Inland
Revenue Requirements and Xxxxxxx Xxxxxxx Xxx 0000, with
respect to that plan. Sellers have made available to Buyer
with respect to each Plan correct and complete copies of all
current Plan documents and summary plan descriptions.
(d) At no time during the six calendar years preceding
the calendar year which the Closing Date occurs has any
Seller or any entity which is or was aggregated with any
Seller under Code Section 414 maintained or made any
contributions to any multiemployer pension plan which is
subject to Title IV of ERISA.
(e) Buyer will not have any liability under ERISA
Title IV after the Closing Date with respect to any Pension
Plan which is or was maintained or contributed to by any
Seller or by any entity that is aggregated with a Seller
under Code Section 414.
(f) No representation has been made to any Affected
Employee (as defined in Section 8.3) with respect to any
Plan which would entitle the employee to benefits greater
than or in addition to the benefits provided by the actual
terms of the Plan, including, without limitation,
representations as to post-retirement health or death
benefits. Except as contemplated by this Agreement, no
representation or promise has been made to any such employee
that any new Plan is to be established.
(g) No material action, suit, proceeding, hearing or
investigation with respect to the administration of any
Plan, the investment of the assets of any Plan or any
violation of a law or regulation with respect to any Plan
(other than routine claims for benefits) is currently
pending and, in relation to the UK Plan only, to the
knowledge of Sellers, no report has been made to the
Occupational Pensions Regulatory Authority and no complaint
or dispute has been made to or preferred to the Pensions
Ombudsman. To the Knowledge of Sellers, no such action,
suit, proceeding, hearing or investigation, report,
complaint or dispute has been threatened."
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Taxes. A new Section 8.2(f) shall be added to
the Purchase Agreement to read as follows:
"(f) (i) It is the intention of Sellers and Buyer
that the provisions of Section 49 Value Added Tax Xxx 0000
("VATA") and Article 5 of the Value Added Tax (Special
Provisions) Order 1995 No. 1268 (the "Order") shall apply to
the transfer of that part of the Business and the Purchased
Assets to be sold by UK under this Agreement (the "UK
Business").
(ii) As soon as reasonably practicable following
Closing UK shall write to H.M. Customs & Excise giving full
particulars of the sale of the UK Business pursuant to this
Agreement and seeking confirmation that such sale falls to be
treated as neither a supply of goods nor a supply of services in
accordance with Section 49 VATA and Article 5 of the Order.
(iii) If, notwithstanding Sections 8.2(f)(i) through
(iii) above, United Kingdom value added tax ("VAT") is properly
chargeable in respect of the sale of all or any of the UK Business
under this Agreement, Buyer (against delivery of a valid VAT tax
invoice in respect thereof addressed to Buyer or the Buyer Group
Member which is the purchaser of the UK Business), shall promptly
pay to UK a sum equal to the amount of VAT properly so chargeable.
(iv) Buyer undertakes to Sellers that it will pay any
United Kingdom stamp duty (including any interest or penalties
properly assessed thereon) which may be chargeable on or in respect
of this Agreement or any documents executed pursuant hereto.
(v) In the event of any inconsistency between the
provisions of this Section 8.2(f) and the other provisions of this
Section 8.2, the provisions of this Section 8.2(f) shall prevail."
6.2 Non-Competition. Section 8.9 is amended to add
the following provisions:
"(c) Buyer believes the COOK-TITE(r) products require
the addition of nylon to the structure in order to remain
competitive. Therefore, notwithstanding anything contained herein
to the contrary, it is agreed that Buyer and its Affiliates may
modify the COOK-TITE(r) products by including the use of nylon, but
only for such products' applications as of the Closing Date, and
such modified products shall not be a Competing Casings Product.
(d) Nothing contained herein shall prohibit Buyer or
its Affiliates from engaging in the manufacture, sale or
distribution of any printed or unprinted non-tubular roll stock
film containing nylon."
ARTICLE VII
CONDITIONS
Section 9.6 of the Purchase Agreement is hereby deleted
in its entirety and the following shall be substituted in lieu
thereof:
"Section 9.6. Escrow Agreements. The Escrow Agreements
shall have been duly executed by Sellers."
Section 10.4 of the Purchase Agreement shall be deleted
in its entirety and the following shall be substituted in lieu
thereof:
"Section 10.4. Escrow Agreements. The Escrow Agreements
shall have been executed by Buyer."
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1. Counterparts. This Amendment may be executed in
one or more counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same
instrument.
8.2. Entire Agreement. With respect to the subject
matter hereof, this Amendment shall supersede anything to the
contrary contained in the Purchase Agreement.
8.3. Partial Invalidity. Wherever possible, each
provision hereof shall be interpreted in such manner as to be
effective and valid under applicable law, but in case any one or
more of the provisions contained herein shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provisions
hereof, unless such a construction would be unreasonable.
8.4. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws (as opposed to
the conflicts of law provisions) of the State of Illinois (without
regard to the conflicts of law provisions thereof), except to the
extent that the application of substantive laws of the United
States or another jurisdiction is mandatory.
8.5. Waiver. Any term or provision of this Amendment
may be waived, or the time for its performance may be extended, by
the party or parties entitled to the benefit thereof. Any such
waiver shall be validly and sufficiently authorized for the
purposes of this Amendment if, as to any party, it is authorized in
writing by an authorized representative of such party. The failure
of any party hereto to enforce at any time any provision of this
Amendment shall not be construed to be a waiver of such provision,
nor in any way to affect the validity of this Amendment or any part
hereof or the right of any party thereafter to enforce each and
every such provision. No waiver of any breach of this Amendment
shall be held to constitute a waiver of any other or subsequent
breach.
IN WITNESS WHEREOF, this Amendment has been duly executed
and delivered by the duly authorized officers of the parties hereto
as of the date first above written.
VISKASE COMPANIES, INC.
By: ___________________________
Name:
Title:
VISKASE CORPORATION
By: ___________________________
Name:
Title:
VISKASE HOLDING CORPORATION
By: ___________________________
Name:
Title:
VISKASE SALES CORPORATION
By: ___________________________
Name:
Title:
VISKASE EUROPE LIMITED
By: ___________________________
Name:
Title:
VISKASE S.A.
By: ___________________________
Name:
Title:
VISKASE LIMITED
By: ___________________________
Name:
Title:
VISKASE CANADA INC.
By: ___________________________
Name:
Title:
VISKASE CHILE EMBALAJES, LTDA
By: ___________________________
Name:
Title:
VISKASE IRELAND LIMITED
By: ___________________________
Name:
Title:
XXXXX COMPANY, INC.
By: ___________________________
Name:
Title:
