EXHIBIT 2.2
AMENDMENT TO AGREEMENT REGARDING THE SALE AND PURCHASE
OF THE ENRAF-NONIUS COMPANIES
(THE "DEED")
by and between
▇▇▇▇▇▇ HEALTHCARE B.V.
and
DELFT INSTRUMENTS NEDERLAND B.V.
DELFT INSTRUMENTS INTERNATIONAL B.V.
BEHEERMMTSCHAPPIJ ELEKTROPTIK B.V.
DELFT INSTRUMENTS FRANCE S.A.
B.V. INDUSTRIELE HOUDSTERMAATSCHAPPIJ ODELCA
ENRAF-NONIUS TECHNOLOGY B.V.
BEHEERMAATSCHAPPIJ OLDELFT B.V.
DIMEQ VERWALTUNGS GMBH
N.V. VERENIGDE INSTRUMENTENFABRIEKEN ENRAF-NONIUS
This Deed is made this 29th day of May 1998;
by and between
1. ▇▇▇▇▇▇ HEALTHCARE B.V., having its registered office at Delft,
▇▇▇▇▇▇▇▇▇▇ ▇, hereinafter referred to as the "Purchaser";
and
2. DELFT INSTRUMENTS NEDERLAND B.V. ("DIN") having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇, (▇▇▇▇ ▇▇) ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, herein represented by
▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇ ▇▇▇▇▇,
3. DELFT INSTRUMENTS INTERNATIONAL B.V. having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇, (▇▇▇▇ ▇▇) ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, herein represented by
▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇▇,
4. BEHEERMAATSCHAPPIJ ELEKIROPTIK B.V. having its registered office at
Mercuriusweg 1(2624 BC) Delft, the Netherlands, herein represented by ▇.▇.
▇▇▇▇▇▇▇,
5. DELFT INSTRUMENTS FRANCE S.A. having its registered office at 15, Rue
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ herein represented
by E. van '▇ ▇▇▇▇▇,
▇. ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ having its registered
office at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇, (▇▇▇▇ ▇▇) ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, herein
represented by ▇.▇. ▇▇▇▇▇▇▇,
7. ENRAF-NONIUS TECHNOLOGY B.V. having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇, (▇▇▇▇ ▇▇) ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, herein represented by
▇.▇. ▇▇▇▇▇▇,
8. BEHEERMMTSCHAPPIJ OLDELFT B.V. having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇, (▇▇▇▇ ▇▇) ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, herein represented by
▇.▇. ▇▇▇▇▇▇▇,
9. DIMEQ VERWALTUNGS GMBH having its registered office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, herein represented by ▇.▇. ▇▇▇▇▇▇▇,
10. N.V. VERENIGDE INSTRUMENTENFABRIEKEN ENRAF-NONIUS herein represented by
▇.▇. ▇▇▇▇▇▇▇,
2 up to and including 10 hereinafter jointly and/or individually referred
to as: the "SELLER";
WHEREAS:
(A) The Parties signed on 6 March 1998 an agreement with respect to the
sale and purchase of the Enraf-Nonius companies (the "PURCHASE AGREEMENT"),
which was deposited with mr. D.F.M.M. Zaman, notary public at Rotterdam, on
6 March 1998;
(B) The Parties wish to amend the Purchase Agreement as is set out
hereinafter:
HAVE AGREED AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.1 Capitalised terms used in this Deed shall have the meanings ascribed to
them in Schedule 1 attached to the Purchase Agreement, except as the
context may otherwise require.
ARTICLE 2
APPLICABLE TERMS AND CONDITIONS
2.1 The terms and conditions of
the Purchase Agreement apply to this Deed. In case of any conflict between
the terms of these agreements, the terms of this Deed will prevail.
ARTICLE 3
SCHEDULES AND AMENDMENTS
3.1 The Parties herewith amend the Schedules to the Purchase Agreement as is
set out in
EXHIBIT 1.
3.2 The Parties herewith amend the Annexes to the Purchase Agreement as is set
out in
EXHIBIT 2.
ARTICLE 4
PROPERTY, ENVIRONMENTAL AND PURSUIT MATTERS
4.1 The Parties wish to replace articles 15, 16 and 17 of Schedule 16 with the
following articles:
15. BUSINESS PREMISES AND REAL ESTATE
15.1 The Companies have held and hold, at the latest at the
Completion Date, good, valid and enforceable title to the
premises (i.e. land and buildings to carry out their Business
(the "BUSINESS PREMISES"). In particular, these Business
Premises are
- free from attachments ("BESLAGEN") and/or registrations
thereof;
- free from personal ("KWALITATIEVE") obligations,
easements ("ERF-DIENSTBAARHEDEN") and other right IN REM,
special charges, perpetual clauses and other encumbrances,
except as set out in the relevant title deeds or public
registers.
The movable property ("ROERENDE ZAKEN") intended to
permanently serve the - within the meaning of Article 254 of
Book 3 of the Dutch Civil Code - is free from any encumbrances
or third party rights.
15.2 The warranty set forth in Article 15.1 above also applies to
the real estate owned EN in Brunssum (the "BRUNSSUM REAL
ESTATE")
15.3 None of the Companies will, at Completion Date, hold any
ownership title or rights to real estate, hold any right IN
REM ("beperkte rechten") to real estate or be under an option
or contractual obligation to purchase or lease any real
estate.
All leases and other contractual agreements entitling the
Companies to use, occupy or hold the Business Premises upon
which they conduct their business at the Signing Date are set
out in Annexes 13 and 14. All Tenancy and Service Agreements
referred to in Article 5 of the Agreement are set out in
Schedules 13 and 14.
15.4 The Companies do not hold any title or right, whether "in
rem", personal or contractual, to real estate other than the
Business Premises.
15.5 None of the Companies is under any obligation to carry out
improvements or repairs of (part of) the Business Premises or
Brunssum Real Estate, nor has any of the Companies received
any orders or instructions with respect to any improvements or
repairs other than those related to the pending environmental
permit application with respect to the Rontgenweg-site.
15.6 None of the Companies has made any renovation or alteration of
the Business Premises and/or Brunssum Real Estate other than
on the basis of and in conformity with the prior permission or
consent from the relevant landlords and/or - to the extent
applicable and with the exception of the renovation and
alternation of the Rontgenweg-site as a result of which an
environmental permit application has been filed - the relevant
governmental or quasi-governmental entities.
15.7 The development, use and construction at or of the Business
Premises applicable laws, regulations, permits, plans,
approvals or consents - or exemptions therefrom - in respect
to zoning, planning and building with the
exception of the use and construction of the Rontgenweg-site
with respect to the Wet Milieubeheer.
15.8 In connection with the Business Premises and/or the Brunssum
Real Estate no subsidies or other types of financial aid have
been granted or applied for in respect of which any of the
Companies are required to fulfil any conditions or are
otherwise subject to any other obligations or restrictions.
16. ENVIRONMENTAL MATTERS
16.1 Each of the Companies has at all times conducted and conducts
its operations and business in compliance with the applicable,
environmental, health, workers safety and working conditions
laws, regulations, rules and orders. EN has not yet complied
with the ARBO-legislation. None of the Companies has received
any notice, report or other communication claiming, stating or
alleging violation of or non-compliance with any such law,
regulation, rule or order.
16.2 None of the Companies is party to or otherwise required to
comply with any environmental agreement ("MILIEUCONVENANT",
"MILIEUBELEIDSOVEREENKOMST").
16.3 None of the Companies has generated, handled, used, stored,
treated, discarded or disposed of a dangerous substance or
waste substance whether at the Business Premises or at any
other location - in a manner which materially and adversely
affected or affects human health, workers safety or the
environment or which would render any of the Companies liable
for substance removal costs, for health care expenses or for
environment restoration expenses.
16.4 The soil or soil water at or underneath the Business Premises,
except for the Rontgenweg-site and the Brunssum Real Estate
and the air at or above these premises are not contaminated or
polluted.
None of the Companies is under any obligation to investigate,
survey or to research on the soil or soil water at or
underneath the Business Premises and Brunssum Real Estate or
to take safety measures, preventative or corrective action or
clean-up measures with respect to such soil and soil water.
The condition of the soil or soil water at or underneath the
aforementioned premises will not in any way hinder or
complicate the obtaining of building, zoning, or planning
permits for construction or
16.5 None of the Companies is liable to any third party (including
but not limited to a public or semi-public authority,
governmental or semi-governmental body) for the condition of
the soil, soil water or the air, whether on the basis of civil
law, administrative law or a specific law or regulation, such
as the Dutch Soil Protection Act ("WET BODEMBESCHERMING") or
the Flemish Soil Sanitation Act ("DECREET BODEMSANERING").
17. PERMITS
17.1 The Companies have obtained all licenses, permits, consents,
approvals and filed all notifications, forms and documents -
including these required under environmental law - necessary
for the current operations and business and the unhindered
continuation thereof (hereafter "the PERMITS") with the
exception of the pending environmental permit with respect to
the Rontgenweg-site. Each of the Permits is in full force and
effect and not subject to any administrative or judicial
review.
17.2 The Companies have conducted and conduct their operations and
business in accordance with these Permits and their terms and
conditions.
17.3 There are no facts or circumstances likely to give rise to an
amendment, cancellation, revocation, non-prolongation or
non-renewal of a Permit or likely to give rise to a permit
refusal or the grant of an unreasonably burdensome permit for
any Permit application that is pending at the Agreement Date
or Completion Date.
ARTICLE 5
DUE DILIGENCE
5.1 Purchaser has conducted further due diligence with respect to the
Companies (excl. Enraf-Nonius Iberica S.A.). All the further disclosed
information is attached as EXHIBIT 3.This further disclosed information
provided by or on behalf of the Seller to the Purchaser or its advisors
shall, in as far as the subject of the disclosed information relates to
the content of representations and warranties in Schedule 16 of the
Purchase Agreement, discharge the Seller from its obligation with respect
to the representations and warranties set out in the Warranties Schedule
referred to in Article 6.1 of the Purchase Agreement and the obligations
referred to in Article 7 and 8 of the Purchase Agreement.
ARTICLE 6
INDEMNIFICATION
6.1 The Seller shall indemnify EN for and hold EN harmless against any and all
liabilities, damages and expenses, of whichever nature, which arise for EN
on account of the following matters:
* the lack of a valid and effective Permit for the premises and
operations at the Rontgenweg-site in Delft (environmental permit
application is pending) in as far as EN is not obliged to pay these
expenses under the Rontgenweg Tenancy and Services Agreement, and;
* the soil and soil water contamination in as far as existing at the
Completion Date at the Rontgenweg-site in Delft and the Brunssum
Real Estate;
6.2 The Seller's duty to indemnify and hold harmless is not subject to any of
the conditions stated in articles 7.4, 7.5, 7.6 or 8.1 of the Purchase
Agreement, it being understood that the total amount of indemnities to be
paid by the Seller will not exceed an amount of NLG 5,450,000 (in words:
five million four hundred and fifty thousand Dutch Guilders).
ARTICLE 7
TAX MATTERS
The Seller shall be responsible for any tax liabilities arising at the
level of the acquired Companies from recaptures relating to tax positions
taken prior to the acquisition date. These tax positions may have been
taken by the Seller or one of its affiliates. In order to avoid
miscommunications, Seller will send the 1997 Dutch corporate income tax
returns, as far as they are relevant for the tax position of the
Companies, for review to the Purchaser before they shall be send to the
tax authorities.
ARTICLE 8
MISCELLANEOUS
8.1 EN will not acquire the shares in Enraf-Nonius Iberica S.A. as referred to
in whereas (B) under (i) and Article 3.2.6 of the Purchase Agreement.
Delft Instruments International B.V. will sell and transfer these shares
to Prim S.A. prior to the Completion Date and the Seller guarantees and
procures that the Purchaser will receive the amounts of this sale and
transfer as mentioned in article 2 of the Shares Purchase and Sale
Agreement between Prim S.A. and Delft Instruments International B.V.
8.2 "Article 11.5" in Article 3.2.10 of the Purchase Agreement should read
"Article 11.4"
8.3 "(the "Balance ")"in the seventh line of Article 4.5 of the Purchase
Agreement should be deleted.
8.4 On Completion Date:
8.4.1 AIM B.V. and EN will enter into transition agreement B
8.4.2 DIN and Enraf-Nonius B.V. will enter into an agreement with
respect to Medi Lease Finans B.V.
8.4.3 DIN and EN will enter into a services agreement.
8.4.4 ▇▇▇▇▇▇ Healthcare Inc will sign a Guaranty.
8.4.5 The Companies and DIN will enter into a release agreement.
8.4.6 The Purchaser and DIN will enter into a deed of assignment with
respect to the claim known to parties as the "French Claim".
8.4.7 EN, DIN and ▇▇▇▇▇▇ Healthcare Inc will enter into a reimbursement
agreement.
8.4.8 DIN will provide the Purchaser with a bankguarantee amounting to
NLG 7,000,000 (in words: seven million dutch guilders).
8.4.9 EN, DIN and AIM will enter into agreement and deed of pledge.
8.5 The Purchaser will not acquire all shares in Enraf-Nonius S.A. (France)
since it will not acquire the 100 shares currently held by ▇▇ ▇. ▇▇ ▇▇▇▇.
8.6 'Net Sales Volume" in the sixth line of Article 2.3 of the Purchase
Agreement should be replaced with the following: "Volume of the net third
party sales of the Companies minus the sales to Enraf-Nonius Iberica S.A.
plus the annual net sales (with deduction of VAT, indirect taxes, custom
duties and discounts applied on the said sales) of Products made by
Enraf-Nonius Iberica S.A. or by Companies of the PRIM group, parties, not
including sales made between Enraf-Nonius Iberica S.A. and the companies
of the PRIM group."
8.7 DIN procures and guarantees that the option rights granted by Delft
Instruments N.V. to Enraf-Nonius employees shall be honoured in accordance
with the terms set out in the individual option agreements.
8.8 The liability of Enraf-Nonius Medizintechnik GmbH with respect to the
pensions referred to in the reimbursement agreement mentioned 8.4.7 (the
"PENSION LIABILITY") shall never exceed NLG 3,320,000 (in words: three
million three hundred and twenty thousand Dutch Guilders) plus accumulated
compounded interest thereover. DIN shall indemnify Enraf-Nonius
Medizintechnik GmbH for and hold it harmless against any and all
liabilities, damages and expenses, of whichever nature, which arise for
Enraf-Nonius Medizintechnik GmbH on account of the Pension Liability of
Dimeq Verwaltung GmbH and which exceed NLG 3,320,000 (in words: three
million three hundred and twenty thousand Dutch Guilders) plus accumulated
interest thereover.
IN WITNESS WHEREOF this Deed has been executed by the Parties hereto in 10
copies on the date set out on page one.
/S/ ▇▇▇ ▇▇▇▇▇▇▇ /S/ R. VEENENGA ▇▇▇▇▇▇
Healthcare B.V. Delft Instruments Nederland B.V.
By: ▇▇▇ ▇▇▇▇▇▇▇ By: R. Veenenga ▇▇▇▇▇▇
Its: Managing Director Its:
/S/ RONTGENWEG BEHEER B.V. /S/ R. VEENENGA ▇▇▇▇▇▇
N.V. Verenigde Instrumentenfabrieken Delft Instruments International
B.V.
Enraf-Nonius By: R. Veenenga ▇▇▇▇▇▇
By: Rontgenweg Beheer B.V. Its:
Its:
/S/ RONTGENWEG BEHEER B.V. /S/ RONTGENWEG BEHEER B.V.
Beheermaatschappij Elektroptik B.V. Delft Instruments France S.A.
By: Rontgenweg Beheer B.V. By: Rontgenweg Beheer B.V.
Its: Its:
/S/ RONTGENWEG BEHEER B.V. /S/ R. VEENENGA ▇▇▇▇▇▇
B.V. Industriele houdstermaatschappij Enraf-Nonius Technology B.V.
Odelca By: R. Veenenga ▇▇▇▇▇▇
By: Rontgenweg Beheer B.V. Its:
Its:
/S/ RONTGENWEG BEHEER B.V. /S/ RONTGENWEG BEHEER B.V.
Beheermaatschappij Oldelft B.V. Dimeq Verwaltungs GmbH
By: Rontgenweg Beheer B.V. By: Rontgenweg Beheer B.V.
Its: Its: