AMENDMENT AGREEMENT
AMENDMENT AGREEMENT dated December 31, 1996 to the
Amicon Worldwide Purchase and Sale Agreement dated November 18,
1996 between X. X. Xxxxx & Co.-Xxxx. ("Xxxxx") and Millipore
Corporation ("Buyer").
WHEREAS, Grace and Buyer have entered into the Amicon
Worldwide Purchase and Sale Agreement dated November 18, 1996,
providing for the sale by Grace and its subsidiaries of their
Amicon bioseparations business to Buyer and its subsidiaries (the
"Purchase Agreement");
WHEREAS, pursuant to Section 19.06, Grace and Buyer
hereto wish to amend certain provisions of the Purchase
Agreement,
NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements contained herein, the parties
agree that the Purchase Agreement is hereby amended as follows:
1. Except as otherwise specifically provided herein,
all capitalized terms used herein shall have the respective
meanings given to them in the Purchase Agreement.
2. The definition of "Irish Subject Assets" contained
in Exhibit 3 is amended by adding a new clause (E) immediately
after clause (D) as follows:
", and (E) amounts receivable from Amicon Germany and
Seller-U.S."
1. The definition of U.S. Excluded Liabilities is
amended by adding ", and (viii) amounts payable to Amicon
Ireland."
2. The definition of "Buyer Ireland" is amended by
replacing "Millipore Dublin International Finance Company" with
"Vermeer."
3. The definition of "Buyer Netherlands" is amended by
replacing "Millipore International Holding Company B.V." with
"Millipore B.V."
4. The Scheduled Closing Date and the Closing Date
shall be the date of this Amendment Agreement.
5. Buyer hereby designates Millipore (U.K.) Limited
("Buyer U.K.") as its designee to purchase the Amicon U.K.
Shares, Millipore G.m.b.H. ("Buyer Germany") as its designee to
purchase the Amicon Germany Shares and Millipore (Canada) Ltd.
("Buyer Canada") as its designee to purchase the Amicon Canada
Shares. Buyer hereby designates Millipore Investment Holdings
Limited to be the purchaser of all intellectual property of the
Subject Business owned by Seller-U.S. or Grace, including but not
limited to the right to enter into the Patent License Agreements
and the Trademark License Agreement as contemplated by Section
3.05.
6. The definition of "Buying Companies" is amended to
add Buyer Germany, Buyer U.K., Buyer Canada and Millipore
Investment Holdings Limited.
7. The schedule to Section 2.04 is deleted and
replaced with Schedule 2.04 attached hereto.
8. Section 3.07 is deleted and replaced with the
following:
"The parties best estimate of the Total Purchase Price
after giving effect to the adjustments to be made under
Article 4, is $122,100,000. Such estimated Total
Purchase Price shall be paid as follows: (a) at the
Closing, Buyer shall pay to Grace, as agent for Seller-
U.S., $6,500,000 in immediately available funds by wire
transfer to Grace's account #016-001257 at The Chase
Manhattan Bank, ABA # 000-000-000, (b) at the Closing,
Buyer, for itself and as agent for the other Buying
Companies (other than Buyer Japan), shall issue to
Grace, on behalf of itself and as agent for the other
Selling Companies (other than Grace Japan), a
promissory note due January 2, 1997, in form and
substance satisfactory to Grace, in the principal
amount of $112,808,000 bearing interest at a rate of 6%
per annum,, and (c) on Xxxxxxx 0, 0000, Xxxxx Xxxxx
shall pay to Grace Japan in immediately available funds
in Japanese Yen, to Grace Japan's account at Sakura
Bank, Atsugi Branch, Current Account No.595-0000000
(Address: 0-0-0 Xxxxxxxxx Xxxxxx-xxx Xxxxxxxx-xxx,
Xxxxx 243, Tel. No. 00-000-00-0000), the Japanese Yen
equivalent of $2,792,000 translated into Japanese Yen
using the exchange rate on the Closing Date as reported
in the Wall Street Journal. The obligations of Buyer
and Buyer Japan under clauses (b) and (c) shall be
secured by irrevocable of letters of credit issued by
The First National Bank of Boston in favor of Grace or
its designee(s) in the amounts of $112,808,000 and
$2,792,000, respectively.
9. A new Section 3.11 is added as follows:
"3.11 Passage of Title. Title to each of the
Amicon Canada Shares, the Amicon Germany Shares and the
Amicon U.K. Shares shall pass within the United States
without the contingency of any event to take place
outside of the United States."
10. The first sentence of Section 4.01 is deleted and
replaced with the following:
"The Buying Companies and the Selling Companies or
their representatives shall cooperate to close the
books of the Amicon Companies and the accounting
records pertaining to the Subject Business of each of
the Selling Companies, as of the Valuation Time, all on
going concern basis, and shall have or shall take a
physical count of the Subject Business inventories in
accordance with the following schedule:
December 4 - 6 - Prochrom and Prochrom R&D, to be
observed by Price Waterhouse and Coopers &
Xxxxxxx.
December 20 - 21 - Amicon U.K., to be observed by
Price Waterhouse and Coopers & Xxxxxxx.
December 1996 - Amicon Canada and Amicon Germany
January 2 - 4 - Seller-U.S. Danvers,
Massachusetts, to be observed by Price Waterhouse
and Coopers & Xxxxxxx; if there are subsequent
discrepancies as to the quantities of inventories
actually on hand at the Valuation Time, then the
determination of Price Waterhouse shall prevail as
to the actual quantities of inventories on hand at
the Valuation Time.
Unless otherwise specifically agreed, no physical count
of any other Subject Business inventories shall be
taken, it being agreed that Buyer and Grace shall rely
on the perpetual and other inventory records of the
relevant Selling Company to determine the inventory
quantities at the Valuation Time."
11. Section 4.02(a) is deleted and replaced with the
following:
"(a) Closing Current Assets" means the aggregate
amount, as of the Valuation Time, of all (i) accounts
receivable, net of allowances, (ii) inventories, net of
reserves, and (iii) other current assets, that are
included in the Total Subject Assets and the Amicon
Companies Assets, plus, for purposes of this Article 4
only, as of the Valuation Time, amounts receivable of
Amicon Ireland from Seller-U.S., computed in accordance
with Section 4.03 in each case."
12. Section 4.02(b) is deleted and replaced with the
following:
"Closing Current Liabilities" means the aggregate
amount, as of the Valuation Time, of all (i) accounts
payable and (ii) other current liabilities, that are
included in the Total Subject Liabilities and the
Amicon Companies Liabilities, plus, for purposes of
this Article 4 only, as of the Valuation Time, amounts
payable by Seller-U.S. to Amicon Ireland, computed in
accordance with Section 4.03 in each case."
13. Sections 16.07(f) and 16.07(g) are deleted in
their entirety.
14. A new Section 16.09 is added to read as follows:
"16.09 Japanese Key Money. Buyer Japan and Grace
Japan acknowledge that, effective upon the Closing,
Grace Japan is assigning to Buyer Japan all of its
rights, and Buyer Japan is assuming all of Grace
Japan's obligations, under the lease of real property
(the "Lease") covering premises at 0xx Xxxxx, Xxxxx
Xxxxxxxx, 0-00-0 Xxxxxxx, Xxxxxx, Xxxxx. Upon the
earlier to occur of (a) the date that the tenant under
the Lease becomes entitled to the return of the lease
deposit from the landlord, or (b) July 31, 1997, Buyer
Japan shall pay Grace Japan an amount equal to (i) the
lease deposit (key money) that would be payable by the
landlord to the tenant if the Lease had been terminated
by the tenant in accordance with the terms of the Lease
effective June 30, 1997 (and without reduction or set-
off caused by or arising out of any events or
occurrences after the Closing Date), less (ii) 50% of
any restoration or similar costs incurred by Millipore
Japan to return the premises to the condition required
by the Lease upon a termination thereof."
15. Sections 17.01 and 17.02 are each amended by
adding the following:
"; provided, however, that Grace and Buyer shall share
equally the costs and expenses of consultants retained
in connection with the fulfillment of the conditions
precedent in Sections 10.03 and 11.03."
16. By their signature to this Amendment, all of the
Selling Companies and all of the Buying Companies (other than
Amicon Ireland and Vermeer, who are entering into a separate
purchase and sale agreement) not previously parties to the
Purchase Agreement shall become parties to the Purchase Agreement
(as amended by this Amendment Agreement), and shall have all of
the rights and be subject to all of the liabilities and
obligations described herein and therein.
17. Except as specifically provided herein, the
Purchase Agreement shall remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, this instrument has been executed
on the date first above written.
X. X. XXXXX & CO.-XXXX. MILLIPORE CORPORATION
By: By:
Xxxxx X. Xxxxxxx Xxxxxxxx Xxxxx
Vice President Senior Vice President
AMICON, INC. MILLIPORE INVESTMENT HOLDINGS
LIMITED
By: By:
Xxxxx X. Xxxxxxx Xxxxxxxx Xxxxx
Executive Vice
President
MILLIPORE X.X.
XXXXX S.A.
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE S.p.A.
GRACE ITALIANA S.p.A.
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Attorney-in-Fact
NIHON MILLIPORE LIMITED
GRACE JAPAN K.K.
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE B.V.
GRACE B.V.
By:
By: Xxxxxxxx Xxxxx,
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE A.B.
GRACE AB
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE A.G.
GRACE A.G.
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE G.m.b.H.
GRACE INTERNATIONAL
HOLDINGS, INC.
By:
By: Xxxxxxxx Xxxxx
Xxxxx X. Xxxxxxx Attorney-in-Fact
Attorney-in-Fact
MILLIPORE (U.K.)LIMITED
By:
Xxxxxxxx Xxxxx
Attorney-in-Fact
MILLIPORE (CANADA) LTD.
By:
Xxxxxxxx Xxxxx
Attorney-in-Fact
AMICON
WORLDWIDE PURCHASE AND SALE AGREEMENT
SCHEDULE 2.04
LOCAL PURCHASE PRICES
This schedule sets forth a preliminary allocation of the Total
Purchase Price,
assuming a Total Purchase Price of $120,342,000, which includes
estimated adjustments for indebtedness for borrowed money and
amounts payable by Amicon Germany to Amicon Ireland. These
allocations shall be further adjusted for the actual amounts of
such indebtedness and amounts payable and for the Closing Working
Capital Amount. Surviving Intercompany Account balances shall be
included in the working capital of the units of the Subject
Business for purposes of determining such allocations.
COUNTRY (US$000)
FRANCE 1,500
PROCHROM 15,540
IRELAND 6,970
UNITED KINGDOM 4,272
UNITED STATES 86,073
CANADA 320
GERMANY 1,000
ITALY 000
XXXXX 2,792
XXXXXXXXXXX 000
XXXXXX 000
XXXXXXXXXXX 000
XXXXXXXXX 120,342
