EXHIBIT 2.2
EXHIBIT C TO SEPARATION AGREEMENT
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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
Between
MILLIPORE CORPORATION
and
MILLIPORE MICROELECTRONICS, INC.
_________________, 2001
TABLE OF CONTENTS PAGE
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Article I Definitions................................................. 1
Article II Contribution And Assumption................................. 8
Section 2.1. Contribution of Assets and Assumption of Liabilities...... 8
Section 2.2. The Non-US Plan........................................... 9
Section 2.3. Adjustment for Retained Assets and Retained Liabilities... 10
Section 2.4. Methods of Transfer and Assumption........................ 10
Section 2.5. Governmental Approvals and Consents....................... 11
Section 2.6. Nonrecurring Costs and Expenses........................... 12
Section 2.7. Novation of Assumed MMI Liabilities and Other Liabilities. 12
Article III Litigation.................................................. 14
Section 3.1. Allocation................................................ 14
Section 3.2. Cooperation............................................... 14
Article IV Miscellaneous............................................... 15
Section 4.1. Entire Agreement.......................................... 15
Section 4.2. Governing Law............................................. 15
Section 4.3. Notices................................................... 15
Section 4.4. Parties in Interest....................................... 15
Section 4.5. Counterparts.............................................. 15
Section 4.6. Assignment................................................ 15
Section 4.7. Severability.............................................. 15
Section 4.8. Failure or Indulgence Not Waiver; Remedies Cumulative..... 15
Section 4.9. Amendment................................................. 15
Section 4.10. Authority................................................. 15
Section 4.11. Interpretation............................................ 17
Section 4.12. Conflicting Agreements.................................... 17
SCHEDULES
Schedule 1.13(viii)... Specific Assets to be Transferred to MMI
Schedule 1.13(A)...... Excluded Assets
Schedule 1.14(vi)..... Divested Businesses Which Contain Liabilities to be
Transferred to MMI
Schedule 1.14(vii).... Specific Liabilities to be Transferred to MMI
Schedule 1.14(A)...... Other Liabilities Excluded from MMI Liabilities
Schedule 2.1.3........ Delayed Transfer Assets and Liabilities
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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General Assignment and Assumption Agreement (this "GA&A Agreement") is
entered into on _____________________, 2001 between MILLIPORE CORPORATION, a
Massachusetts corporation ("Millipore"), and MILLIPORE MICROELECTRONICS, INC., a
Delaware corporation ("MMI").
R E C I T A L S
1. Millipore hereby and by certain other instruments of even date
herewith transfers or will transfer to MMI effective as of the Separation Date,
certain assets of the MMI Business owned by Millipore in accordance with the
Master Separation and Distribution Agreement dated as of ________________, 2001
between Millipore and MMI (the "Separation Agreement").
2. It is further intended between the parties that MMI assume certain of
the liabilities related to the MMI Business currently owed by Millipore, as
provided in this GA&A Agreement, the Separation Agreement or the other
agreements and instruments provided for in the Separation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings assigned to them below whenever
they are used in this Agreement; terms defined elsewhere in this Agreement shall
have the meanings ascribed to them at the location of their definition indicated
below. Except where the context otherwise requires, words imparting the
singular shall include the plural and vice versa, words denoting any gender
shall include all genders and words denoting persons shall include bodies
corporate and vice versa. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Separation
Agreement.
SECTION 1.1. ACTION. "Action" means any demand, action, suit, countersuit,
arbitration, inquiry, proceeding or investigation by or before any federal,
state, local, foreign or international governmental authority or any arbitration
or mediation tribunal.
SECTION 1.2. ASSETS. "Assets" means assets, properties and rights (including
goodwill), wherever located (including in the possession of vendors, customers
or other third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any Person, including the following: (i) all accounting and other
books, records and files whether in paper, microfilm, microfiche, computer tape
or disc, magnetic tape or any other form; (ii) all apparatus, computers and
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other electronic data processing equipment, automobiles, trucks, motor vehicles
and other transportation equipment, special and general tools, test devices,
prototypes and models and other tangible personal property; (iii) all
inventories of materials, parts, raw materials, supplies, work-in-process and
finished goods and products; (iv) all interests in real property of whatever
nature, including easements, whether as owner, mortgagee or holder of a Security
Interest, lessor, sublessor, lessee, sublessee or otherwise; (v) all interests
in any capital stock or other equity interests of any Subsidiary or any other
Person; all bonds, notes, debentures or other securities issued by any
Subsidiary or any other Person; all loans, advances or other extensions of
credit or capital contributions to any Subsidiary or any other Person; and all
other investments in securities of any Person; (vi) all license agreements,
leases of personal property, open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the manufacture and sale of products and
other contracts, agreements or commitments; (vii) all deposits, letters of
credit and performance and surety bonds; (viii) all Intellectual Property
whether developed and owned directly or prepared by consultants and other third
parties; (ix) all Intellectual Property and licenses from third Persons granting
the right to use any Intellectual Property; (x) all computer applications,
programs and other software, including operating software, network software,
firmware, middleware, design software, design tools, systems documentation and
instructions; (xi) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier lists, customer and
vendor data, correspondence and lists, product literature, artwork, design,
development and manufacturing files, vendor and customer drawings, formulations
and specifications, quality records and reports and other books, records,
studies, surveys, reports, plans and documents; (xii) all prepaid expenses,
trade accounts and other accounts and notes receivables; (xiii) all rights under
contracts or agreements, all claims or rights against any Person arising from
the ownership of any Asset, all rights in connection with any bids or offers and
all claims, choses in action or similar rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in the nature of
insurance, indemnification or contribution; (xv) all licenses, permits,
approvals and authorizations which have been issued by any Governmental
Authority; (xvi) cash or cash equivalents, bank accounts, lock boxes and other
deposit arrangements; and (xvii) interest rate, currency, commodity or other
swap, collar, cap or other hedging or similar agreements or arrangements.
SECTION 1.3. CONTRACTS. "Contracts" means any contract, agreement, lease,
license, sales order, purchase order, instrument or other commitment that is
binding on any Person or any part of its property under applicable law.
SECTION 1.4. DELAYED TRANSFER ASSETS. "Delayed Transfer Assets" means any MMI
Assets that are expressly provided in this Agreement, the Separation Agreement
or any other Ancillary Agreement to be transferred after the Separation Date.
SECTION 1.5. DELAYED TRANSFER LIABILITIES. "Delayed Transfer Liabilities" means
any MMI Liabilities that are expressly provided in this Agreement, the
Separation Agreement or any other Ancillary Agreement to be assumed after the
Separation Date.
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SECTION 1.6. GOVERNMENTAL APPROVALS. "Governmental Approvals" means any
notices, reports or other filings to be made, or any consents, registrations,
approvals, permits or authorizations to be obtained from, any Governmental
Authority.
SECTION 1.7. GOVERNMENTAL AUTHORITY. "Governmental Authority" means any
federal, state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other regulatory, administrative
or governmental authority.
SECTION 1.8. INSURANCE POLICIES. "Insurance Policies" means insurance policies
pursuant to which a Person makes a true risk transfer to an insurer.
SECTION 1.9. INSURED MMI LIABILITIES. "Insured MMI Liabilities" means any MMI
Liability to the extent that: (i) MMI is covered under the terms of Millipore's
Insurance Policies in effect prior to the Distribution Date and (ii) MMI is not
a named insured under, or otherwise entitled to the benefits of, such Insurance
Policies.
SECTION 1.10. INTELLECTUAL PROPERTY. "Intellectual Property" means all
domestic and foreign patents and patent applications, together with any
continuations, continuations-in-part or divisional applications thereof, and all
patents issuing thereon (including reissues, renewals and re-examinations of the
foregoing); design patents, invention disclosures; mask works; copyrights, and
copyright applications and registrations; all written technical information,
data, specifications, research and development information, engineering
drawings, operating and maintenance manuals, and materials and analyses; Web
addresses, trademarks, service marks, trade names, and trade dress, in each case
together with any applications and registrations therefor and all appurtenant
goodwill relating thereto; trade secrets, commercial and technical information,
know-how, proprietary or confidential information, including engineering,
production and other designs, notebooks, processes, drawings, specifications,
formulae, and technology; computer and electronic data processing programs and
software (object and source code), data bases and documentation thereof;
inventions (whether patented or not); utility models; registered designs,
certificates of invention and all other intellectual property under the laws of
any country throughout the world.
SECTION 1.11. LIABILITIES. "Liabilities" means all debts, liabilities,
guarantees, assurances, commitments and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted principles and accounting
policies to be reflected in financial statements or disclosed in the notes
thereto.
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SECTION 1.12. LOCAL TRANSFER AGREEMENTS. "Local Transfer Agreements" means the
agreements with respect to the transfer of assets and liabilities and the
provision of transitional services between Subsidiaries in the MMI Group and the
Millipore Group in jurisdictions outside of the United States necessary to
effect the Non-U.S. Plan (as defined in the Separation Agreement).
SECTION 1.13. MMI ASSETS. "MMI Assets" means (without duplication) the
following Assets, except as otherwise provided for in any other Ancillary
Agreement or other express agreement of the parties: (i) all Assets reflected
in the MMI Balance Sheet, subject to any dispositions of such Assets subsequent
to the date of the MMI Balance Sheet; (ii) all Assets that have been written
off, expensed or fully depreciated that, had they not been written off, expensed
or fully depreciated, would have been reflected in the MMI Balance Sheet in
accordance with the principles and accounting policies under which the MMI
Balance Sheet was prepared; (iii) all Assets acquired by Millipore or its
Subsidiaries after the date of the MMI Balance Sheet that would be reflected in
the consolidated balance sheet of MMI as of the Separation Date if such
consolidated balance sheet was prepared using the same principles and accounting
policies under which the MMI Balance Sheet was prepared, including any business
transaction processing that may occur on Millipore systems on behalf of MMI
during the period between Separation Date to initialization of the processing
systems required by MMI; (iv) all Assets that are used primarily by the MMI
Business at the Separation Date but are not reflected in the MMI Balance Sheet
due to mistake or omission; provided, however, that no Asset shall be a MMI
Asset requiring any transfer by Millipore unless MMI or its Subsidiaries have,
on or before the first anniversary of the Distribution Date, given Millipore or
its Subsidiaries notice that such Asset is a MMI Asset; (v) all MMI Contingent
Claims; (vi) all MMI Contracts; (vii) to the extent permitted by law and subject
to the Separation Agreement and the Master Transitional Services Agreement, all
rights of any member of the MMI Group under any of Millipore's Insurance
Policies or other insurance policies issued by Persons unaffiliated with
Millipore; and (viii) those specific Assets that are expressly contemplated by
this Agreement, the Separation Agreement or any other Ancillary Agreement (or
any other Schedule hereto or thereto) as Assets to be transferred to MMI or any
other member of the MMI Group and which are set forth on SCHEDULE 1.13(viii).
MMI ASSETS SHALL EXCLUDE THE FOLLOWING: (A) the Excluded Assets listed or
described on SCHEDULE 1.13(A); (B) the Retained Assets; and (C) any Assets that
are expressly contemplated by the Separation Agreement, this Agreement or any
other Ancillary Agreement (or the Schedules hereto or thereto) as Assets to be
retained by Millipore or any other member of the Millipore Group.
Section 1.14. MMI Liabilities. "MMI Liabilities" means (without duplication)
the following Liabilities, except as otherwise provided for in any other
Ancillary Agreement or other express agreement of the parties: (i) all
Liabilities reflected in the MMI Balance Sheet, subject to any discharge of such
Liabilities subsequent to the date of the MMI Balance Sheet; (ii) all
Liabilities of Millipore or its Subsidiaries that arise after the date of the
MMI Balance Sheet that would be reflected in the consolidated balance sheet of
MMI as of the Separation Date if such consolidated balance sheet was prepared
using the same principles and accounting policies under which the MMI Balance
Sheet was prepared;
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(iii) all Liabilities that are related primarily to the MMI Business at the
Separation Date but are not reflected in the MMI Balance Sheet due to mistake or
unintentional omission; PROVIDED, HOWEVER, that no Liability shall be considered
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as a MMI Liability unless Millipore or its Subsidiaries, on or before the first
anniversary of the Distribution Date, has given MMI or its Subsidiaries notice
that such Liability is a MMI Liability; (iv) all MMI Contingent Liabilities; (v)
all Liabilities (other than Liabilities for Taxes), whether arising before, on
or after the Separation Date, primarily relating to, arising out of or resulting
from: (1) the operation of the MMI Business, as conducted at any time prior to,
on or after the Separation Date (including any Liability relating to, arising
out of or resulting from any act or failure to act by any director, officer,
employee, agent or representative (whether or not such act or failure to act is
or was within such Person's authority)); (2) the operation of any business
conducted by any member of the MMI Group at any time after the Separation Date
(including any Liability relating to, arising out of or resulting from any act
or failure to act by any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within such Person's
authority)); or (3) any MMI Assets; (vi) all Liabilities relating to, arising
out of or resulting from any of the terminated, divested or discontinued
businesses and operations listed or described on SCHEDULE 1.14(vi); and (vii)
all Liabilities that are expressly contemplated by this Agreement, the
Separation Agreement or any other Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be assumed by MMI or any member of the MMI Group,
and all agreements, obligations and Liabilities of any member of the MMI Group
under this Agreement or any of the Ancillary Agreements which are listed on
SCHEDULE 1.14(vii). The MMI Liabilities SHALL EXCLUDE THE FOLLOWING: (A) the
Excluded Liabilities listed or described in SCHEDULE 1.14(A); (B) the Retained
Liabilities; (C) all Insured MMI Liabilities; (D) all Liabilities that are
expressly contemplated by this Agreement, the Separation Agreement or any other
Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to be
retained or assumed by Millipore or any other member of the Millipore Group, and
all agreements and obligations of any member of the Millipore Group under the
Separation Agreement, this Agreement or any other Ancillary Agreement.
SECTION 1.15. MMI BALANCE SHEET. "MMI Balance Sheet" means the audited
consolidated balance sheet (including the notes thereto) of the MMI Business as
of December 31, 2000, that is included in the IPO Registration Statement.
SECTION 1.16. MMI CONTINGENT CLAIM. "MMI Contingent Claim" means any claim or
other right of a member of the Millipore Group or the MMI Group that primarily
relates to the MMI Business, whenever arising, against any Person other than a
member of the Millipore Group or the MMI Group, if and to the extent that (i)
such claim or right arises out of the events, acts or omissions occurring as of
the Separation Date (based on then existing law) and (ii) the existence or scope
of the obligation of such other Person as of the Separation Date was not
acknowledged, fixed or determined in any material respect, due to a dispute or
other uncertainty as of the Separation Date or as a result of the failure of
such claim or other right to have been discovered or asserted as of the
Separation Date. A claim or right meeting the foregoing definition shall be
considered a MMI Contingent Claim regardless of whether there was any Action
pending, threatened or contemplated as of the
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Separation Date with respect thereto. In the case of any claim or right a
portion of which arises out of events, acts or omissions occurring prior to the
Separation Date and a portion of which arises out of events, acts or omissions
occurring on or after the Separation Date, only that portion that arises out of
events, acts or omissions occurring prior to the Separation Date shall be
considered a MMI Contingent Claim. For purposes of the foregoing, a claim or
right shall be deemed to have accrued as of the Separation Date if all the
elements of the claim necessary for its assertion shall have occurred on or
prior to the Separation Date, such that the claim or right, were it asserted in
an Action on or prior to the Separation Date, would not be dismissed by a court
on ripeness or similar grounds. Notwithstanding the foregoing, none of: (i) any
Insurance Proceeds, (ii) any Excluded Assets, (iii) any reversal of any
litigation or other reserve, or (iv) any matters relating to Taxes (which are
governed by the Tax Sharing Agreement) shall be deemed to be a MMI Contingent
Claim.
SECTION 1.17. MMI CONTINGENT LIABILITY. "MMI Contingent Liability" means any
Liability, other than Liabilities for Taxes (which are governed by the Tax
Sharing Agreement), of a member of the Millipore Group or the MMI Group that
primarily relates to the MMI Business, whenever arising, to any Person other
than a member of the Millipore Group or the MMI Group, if and to the extent that
such Liability arises out of the events, acts or omissions occurring as of the
Separation Date and the existence or scope of the obligation of a member of the
Millipore Group or the MMI Group as of the Separation Date with respect to such
Liability was not acknowledged, fixed or determined in any material respect, due
to a dispute or other uncertainty as of the Separation Date or as a result of
the failure of such Liability to have been discovered or asserted as of the
Separation Date (it being understood that the existence of a litigation or other
reserve with respect to any Liability shall not be sufficient for such Liability
to be considered acknowledged, fixed or determined). In the case of any
Liability a portion of which arises out of events, acts or omissions occurring
prior to the Separation Date and a portion of which arises out of events, acts
or omissions occurring on or after the Separation Date, only that portion that
arises out of events, acts or omissions occurring prior to the Separation Date
shall be considered a MMI Contingent Liability. For purposes of the foregoing, a
Liability shall be deemed to have arisen out of events, acts or omissions
occurring prior to the Separation Date if all the elements necessary for the
assertion of a claim with respect to such Liability shall have occurred on or
prior to the Separation Date, such that the claim, were it asserted in an Action
on or prior to the Separation Date, would not be dismissed by a court on
ripeness or similar grounds. For purposes of clarification of the foregoing, the
parties agree that no Liability relating to, arising out of or resulting from
any obligation of any Person to perform the executory portion of any contract or
agreement existing as of the Separation Date, or to satisfy any obligation
accrued under any Plan (as defined in the Employee Matters Agreement) as of the
Separation Date, shall deemed to be a MMI Contingent Liability. For purposes of
determining whether a claim relating to the Year 2000 problem is a MMI
Contingent Liability, claims relating to products shipped prior to the
Separation Date shall be deemed to have arisen prior to the Separation Date.
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SECTION 1.18. MMI CONTRACTS. "MMI Contracts" means the following contracts and
agreements to which Millipore is a party or by which it or any of its Assets is
bound, whether or not in writing, except for any such contractor agreement that
is contemplated to be retained by Millipore or any member of the Millipore Group
pursuant to any provision of this Agreement or any other Ancillary Agreement:
(i) any contract or agreement entered into in the name of, or expressly on
behalf of, any division or business unit of MMI; (ii) any contract or agreement
that relates primarily to the MMI Business; (iii) any contract or agreement that
is otherwise expressly contemplated pursuant to this Agreement, the Separation
Agreement or the other Ancillary Agreements to be assigned to MMI; and (iv) any
guarantee, indemnity, representation, warranty or other Liability of any member
of the MMI Group or the Millipore Group in respect of any other MMI Contract,
any MMI Liability or the MMI Business (including guarantees of financing
incurred by customers or other third parties in connection with purchases of
products or services from the MMI Business).
SECTION 1.19. MMI PRO FORMA BALANCE SHEET. "MMI Pro Forma Balance Sheet" means
any unaudited pro forma condensed consolidated balance sheet of MMI appearing in
the IPO Registration Statement.
SECTION 1.20. RETAINED LIABILITIES. "Retained Liabilities" means (i) all
accounts payable and other obligations of payment for goods or services
purchased, leased or otherwise received in the conduct of the business of a
Subsidiary of Millipore located outside of the United States that, as of the
Separation Date, are payable to a third Person by such Subsidiary and (ii) all
other miscellaneous Liabilities of such Subsidiary; WHERE the transfer of such
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Retained Liabilities is prohibited, restricted, subjected to significant
taxation under local law or is otherwise impractical AND [X] such Retained
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Liabilities are allocable to the MMI Business and the Subsidiary required to
retain such Retained Liabilities will be a Subsidiary of the Millipore Group
under the Non-U.S. Plan; OR [Y] such Retained Liabilities are allocable to the
--
business of Millipore other than the MMI Business and the Subsidiary required to
retain such Retained Liabilities will be a Subsidiary of the MMI Group under the
Non-U.S. Plan.
SECTION 1.21. RETAINED ASSETS. "Retained Assets" means (i) all accounts
receivable and other rights to payment for goods or services sold, leased or
otherwise provided in the conduct of the business of a Subsidiary of Millipore
located outside of the United States that, as of the Separation Date, are
payable by a third Person to such Subsidiary; and (ii) all other miscellaneous
Assets of such Subsidiary WHERE the transfer of such Retained Assets is
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prohibited, restricted, subjected to significant taxation under local law or is
otherwise impractical AND [X] such Retained Assets are allocable to the MMI
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Business and the Subsidiary required to retain such Retained Assets will be a
Subsidiary of the Millipore Group under the Non-U.S. Plan; OR [Y] such Retained
--
Assets are allocable to the business of Millipore other than the MMI Business
and the Subsidiary required to retain such Retained Liabilities will be a
Subsidiary of the MMI Group under the Non-U.S. Plan.
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SECTION 1.22. SECURITY INTEREST. "Security Interest" means any mortgage,
security interest, pledge, lien, charge, claim, option, right to acquire, voting
or other restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
SECTION 1.23. SUBSIDIARY. "Subsidiary" of any Person means any corporation or
other organization whether incorporated or unincorporated of which at least a
majority of the securities or interest having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned and controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries.
SECTION 1.24. TAXES. "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
ARTICLE II
CONTRIBUTION AND ASSUMPTION
SECTION 2.1 CONTRIBUTION OF ASSETS AND ASSUMPTION OF LIABILITIES.
2.1.1. TRANSFER OF ASSETS. Effective on the Separation Date, Millipore hereby
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assigns, transfers, conveys and delivers (or will cause any applicable
Subsidiary to assign, transfer, convey and deliver) to MMI, or,
pursuant to Section 2.4, to any applicable MMI Subsidiary, and MMI
hereby accepts from Millipore, or applicable Millipore Subsidiary, and
agrees to cause its applicable MMI Subsidiary to accept, all of
Millipore's and its applicable Subsidiaries' respective right, title
and interest in MMI Assets, other than the Delayed Transfer Assets;
PROVIDED, HOWEVER, that any MMI Assets that are specifically assigned
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or transferred pursuant to another Ancillary Agreement shall not be
assigned or transferred pursuant to this GA&A Agreement
2.1.2. ASSUMPTION OF LIABILITIES. Effective on the Separation Date, MMI hereby
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assumes and agrees faithfully to perform and fulfill (or will cause any
applicable Subsidiary to assume, perform and fulfill), all the MMI
Liabilities owed by Millipore, other than the Delayed Transfer
Liabilities, in accordance with their respective terms. Thereafter, MMI
shall be responsible (or will cause any applicable Subsidiary to be
responsible) for all MMI Liabilities held by Millipore, regardless of
when or where such Liabilities arose or arise, or whether the facts on
which they are based occurred prior to, on or after the date hereof,
regardless of where or against whom such Liabilities are asserted or
determined (including any MMI Liabilities arising out of claims made by
Millipore's or MMI's respective directors, officers, consultants,
independent contractors, employees or agents against any member of the
Millipore Group or the MMI Group) or whether asserted or determined
prior to the date hereof, and regardless of whether arising from or
alleged to arise from negligence, recklessness, violation of law, fraud
or
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misrepresentation by any member of the Millipore Group or the MMI Group
or any of their respective directors, officers, employees or agents.
2.1.3. DELAYED TRANSFER ASSETS AND LIABILITIES. Each of the parties hereto
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agrees that the Delayed Transfer Assets will be assigned, transferred,
conveyed and delivered, and the Delayed Transfer Liabilities will be
assumed, in accordance with the terms of the agreements that provide
for such assignment, transfer, conveyance and delivery, or such
assumption, after the date of this Agreement or as otherwise set forth
on SCHEDULE 2.1.3. Following such assignment, transfer, conveyance and
delivery of any Delayed Transfer Asset, or the assumption of any
Delayed Transfer Liability, the applicable Delayed Transfer Asset or
Delayed Transfer Liability shall be treated for all purposes of this
Agreement and the other Ancillary Agreements as a MMI Asset or as a MMI
Liability, as the case may be.
2.1.4. MISALLOCATED ASSETS. In the event that at any time or from time to time
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(whether prior to, on or after the Separation Date), any party hereto
(or any member of such party's respective Group), shall receive or
otherwise possess any Asset that is allocated to any other Person
pursuant to this Agreement or any Ancillary Agreement, such party shall
promptly transfer, or cause to be transferred, such Asset to the Person
so entitled thereto. Prior to any such transfer, the Person receiving
or possessing such Asset shall hold such Asset in trust for any such
other Person.
SECTION 2.2. THE NON-US PLAN. Each of Millipore and MMI shall take, and shall
cause each member of its respective Group to take, such action as reasonably
necessary to consummate the transactions contemplated by the Non-US Plan
(whether prior to, on or after the Separation Date). Unless otherwise agreed in
writing by the Chief Financial Officers of Millipore and MMI, notwithstanding
anything in this Agreement, the Separation Agreement or in any other Ancillary
Agreement to the contrary, (i) no party to a Local Transfer Agreement shall be
entitled to receive or retain any Asset unless such party shall have paid any
consideration contemplated to be paid in connection therewith pursuant to the
Non-US Plan; and (ii) no term or provision of a Local Transfer Agreement which
is inconsistent with the Non-US Plan shall be effective.
2.2.1. Effective on the Separation Date, Millipore shall transfer all of its
right title and interest or cause Millipore Subsidiaries to transfer
all of their right title and interest in and to the issued and
outstanding capital stock of the Subsidiaries listed on Schedule 2.3.2
of the Separation Agreement in accordance with the procedures specified
in the Non-U.S. Plan and shall assume or cause a Millipore Subsidiary
to assume the Liabilities other than the MMI Liabilities of each such
Subsidiary in accordance with the Non-U.S. Plan.
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SECTION 2.3. ADJUSTMENT FOR RETAINED ASSETS AND RETAINED LIABILITIES. In each
country in which there are Retained Assets or Retained Liabilities, the
Subsidiary which is required to retain such Retained Assets and/or Retained
Liabilities under local law shall retain such items but shall calculate the net
value thereof by applying its Retained Assets against its Retained Liabilities,
at and as of the Separation Date; the net amount remaining (whether negative or
positive) from such calculation (a "Net Retention Adjustment") shall be reported
by such Subsidiary to its ultimate parent (either MMI or Millipore, as the case
may be). The Net Retention Adjustments reported by all Subsidiaries in the MMI
Group shall be aggregated and the Net Retention Adjustments reported by all
Subsidiaries in the Millipore Group shall be aggregated. If the aggregate net
amount of all Net Retention Adjustments reported by Subsidiaries in the MMI
Group exceeds the aggregate net amount of all Net Retention Adjustments reported
by Subsidiaries in the Millipore Group, then MMI shall be credited with a
payment under the Separation Revolving Credit Agreement in an amount equal to
the amount of such excess, provided that if such credit reduces the outstanding
balance under the Separation Revolving Credit Agreement to zero, then payment of
the balance of such excess to MMI shall be made in cash. If the aggregate
amount of all Net Retention Adjustments reported by Subsidiaries in the
Millipore Group exceeds the aggregate net amount of all Net Retention
Adjustments reported by Subsidiaries in the MMI Group, then MMI shall be charged
with a drawdown under the Separation Revolving Credit Agreement in an amount
equal to the amount of such excess.
SECTION 2.4. METHODS OF TRANSFER AND ASSUMPTION.
2.4.1. TERMS OF OTHER ANCILLARY AGREEMENTS GOVERN. The parties shall enter
------------------------------------------
into the other Ancillary Agreements, on or about the date of this
Agreement. To the extent that the transfer of any MMI Asset or the
assumption of any MMI Liability is expressly provided for by the terms
of any other Ancillary Agreement, the terms of such other Ancillary
Agreement relating to such transfer shall effect, and determine the
manner of, the transfer or assumption. It is the intent of the parties
that pursuant to Section 2.1, the transfer and assumption of all other
MMI Assets and MMI Liabilities, other than Delayed Transfer Assets and
Delayed Transfer Liabilities, shall be made effective as of the
Separation Date; PROVIDED, HOWEVER, that circumstances in various
-------- -------
jurisdictions outside the United States may require the transfer of
certain Assets and the assumption of certain Liabilities to occur in
such other manner and at such other time as the parties shall agree, as
provided in the Non-US Plan and Section 2.2 hereof.
2.4.2. MISTAKEN ASSIGNMENTS AND ASSUMPTIONS. In addition to those transfers
------------------------------------
and assumptions accurately identified and designated by the parties to
take place but which the parties are not able to effect prior to the
Separation Date, there may exist Assets that the parties discover were,
contrary to the agreements between the parties, by mistake or omission,
transferred to MMI or Liabilities that the parties discover were,
contrary to the agreements between the parties, by mistake or omission,
assumed by MMI. The parties shall cooperate in good faith to effect the
transfer or re-transfer of such Assets, and/or the assumption or re-
assumption of such Liabilities, to or by the appropriate party and
shall not use the determination
10
that remedial actions need to be taken to alter the original intent of
the parties hereto with respect to the Assets to be transferred to or
Liabilities to be assumed by MMI. Each party shall reimburse the other
or make other financial adjustments (e.g., without limitation, cash
reserves) or other adjustments to remedy any mistakes or omissions
relating to any of the Assets transferred hereby or any of the
Liabilities assumed hereby.
2.4.3. DOCUMENTS RELATING TO OTHER TRANSFERS OF ASSETS AND ASSUMPTION OF
-----------------------------------------------------------------
LIABILITIES. In furtherance of the assignment, transfer and conveyance
-----------
of MMI Assets and the assumption of MMI Liabilities set forth in
Sections 2.1 and certain other Ancillary Agreements, simultaneously
with the execution and delivery hereof or as promptly as practicable
thereafter:
(i) Millipore shall execute and deliver, and shall cause its
Subsidiaries in accordance with Local Transfer Agreements to
execute and deliver, such bills of sale, stock powers,
certificates of title, assignments of contracts and other
instruments of transfer, conveyance and assignment as and to
the extent necessary to evidence the transfer, conveyance and
assignment of all of Millipore's and its Subsidiaries right,
title and interest in and to the MMI Assets to MMI; and
(ii) MMI shall execute and deliver to Millipore and its Subsidiaries
such assumptions of contracts and other instruments of
assumption as and to the extent necessary to evidence the valid
and effective assumption of the MMI Liabilities by MMI.
SECTION 2.5. GOVERNMENTAL APPROVALS AND CONSENTS.
2.5.1. TRANSFER IN VIOLATION OF LAWS. If and to the extent that the valid,
-----------------------------
complete and perfected transfer assignment or novation to the MMI Group
of any MMI Assets and MMI Liabilities (or from the MMI Group of any
Non-MMI Assets) would be a violation of applicable laws or require any
Consent or Governmental Approval in connection with the Separation, the
IPO or the Distribution, then, unless Millipore shall otherwise
determine, the transfer, assignment or novation to or from the MMI
Group, as the case may be, of such MMI Assets or Non-MMI Assets,
respectively, shall be automatically deemed deferred and any such
purported transfer, assignment or novation shall be null and void until
such time as all legal impediments are removed and/or such Consents or
Governmental Approvals have been obtained. Notwithstanding the
foregoing, such Asset shall still be considered a MMI Asset for
purposes of determining whether any Liability is a MMI Liability;
PROVIDED, HOWEVER, that if such covenants or Governmental Approvals
-------- -------
have not been obtained within six months of the Distribution Date, the
parties will use their reasonable commercial efforts to achieve an
alternative solution in accordance with the parties' intentions at and
as of the Separation Date.
11
2.5.2. TRANSFERS NOT CONSUMMATED PRIOR TO SEPARATION DATE. If the transfer,
--------------------------------------------------
assignment or novation of any Assets intended to be transferred or
assigned hereunder, including pursuant to the Non-US Plan, is not
consummated prior to or on the Separation Date, whether as a result of
the provisions of Section 2.5 or for any other reason, then the Person
retaining such Asset shall thereafter hold such Asset for the use and
benefit, insofar as reasonably possible, of the Person entitled thereto
(at the expense of the Person entitled thereto). In addition, the
Person retaining such Asset shall take such other actions as may be
reasonably requested by the Person to whom such Asset is to be
transferred in order to place such Person, insofar as reasonably
possible, in the same position as if such Asset had been transferred as
contemplated hereby and so that all the benefits and burdens relating
to such MMI Assets (or such Non-MMI Assets, as the case may be),
including possession, use, risk of loss, potential for gain, and
dominion, control and command over such Assets, are to inure from and
after the Separation Date to the MMI Group (or the Millipore Group, as
the case may be). If and when the Consents and/or Governmental
Approvals, the absence of which caused the deferral of transfer of any
Asset pursuant to Section 2.4, are obtained, the transfer of the
applicable Asset shall be effected in accordance with the terms of this
Agreement and/or such other applicable Ancillary Agreement.
2.5.3. EXPENSES. The Person retaining an Asset due to the deferral of the
--------
transfer of such Asset shall not be obligated, in connection with the
foregoing, to expend any money unless the necessary funds are advanced
by the Person entitled to the Asset, other than reasonable out-of-
pocket expenses, attorneys' fees and recording or similar fees, all of
which shall be promptly reimbursed by the Person entitled to such
Asset.
SECTION 2.6. NONRECURRING COSTS AND EXPENSES. Notwithstanding anything herein
to the contrary, any nonrecurring costs and expenses incurred by the parties
hereto to effect the transactions contemplated hereby which are not allocated
pursuant to the terms of the Separation Agreement, this Agreement or any other
Ancillary Agreement shall be the responsibility of the party which incurs such
costs and expenses.
SECTION 2.7 NOVATION OF ASSUMED MMI LIABILITIES AND OTHER LIABILITIES.
2.7.1. REASONABLE COMMERCIAL EFFORTS. Each of Millipore and MMI, at the
-----------------------------
request of the other, shall use its reasonable commercial efforts to
obtain, or to cause to be obtained, any consent, substitution, approval
or amendment required to novate (including with respect to any federal
government contract) or assign all rights and obligations under
agreements, leases, licenses and other obligations or Liabilities of
any nature whatsoever that constitute MMI Liabilities or to obtain in
writing the unconditional release of all parties to such arrangements
other than any member of the MMI Group, so that, in any such case, MMI
and its Subsidiaries will be solely responsible for such Liabilities.
12
2.7.2. INABILITY TO OBTAIN NOVATION. In the event that Millipore is unable to
----------------------------
obtain, or to cause to be obtained, any required consent, approval,
release, substitution or amendment referred to in Subsection 2.7.2
above, the applicable member of the Millipore Group shall continue to
be bound by such agreements, leases, licenses and other obligations and
shall, as agent or subcontractor for MMI, pay, perform and discharge
fully, or cause to be paid, performed or discharged all of such non-
novated obligations or other Liabilities of Millipore for the benefit
and at the risk of MMI, thereunder from and after the date hereof.
Millipore shall, without further consideration, pay and remit, or cause
to be paid or remitted, to MMI or the appropriate Subsidiary, as the
case may be, promptly all money, rights and other consideration
received by it or any member of the Millipore Group in respect of such
performance. In the event that such performance requires the
expenditure of funds by Millipore, then the amount of such expenditure
by Millipore shall be deemed to be a Liability subject to
indemnification by MMI pursuant to Section 7.2(i) of the Separation
Agreement. If and when any such consent, approval, release,
substitution or amendment shall be obtained or such agreement, lease,
license or other rights or obligations shall otherwise become
assignable or able to be novated, Millipore shall thereafter assign, or
cause to be assigned, all its rights, obligations and other Liabilities
thereunder or any rights or obligations of any member of the Millipore
Group to MMI without payment of further consideration and MMI shall,
without the payment of any further consideration, assume such rights
and obligations.
2.7.3. NOVATION OF LIABILITIES OTHER THAN MMI LIABILITIES. Under the Non-U.S.
--------------------------------------------------
Plan MMI will take ownership of certain Subsidiaries of Millipore which
include Liabilities other than MMI Liabilities. Accordingly, each of
Millipore and MMI, at the request of the other, shall use its
reasonable commercial efforts to obtain, or to cause to be obtained,
any consent, substitution, approval or amendment required to novate
(including with respect to any government contract) or assign all
rights and obligations under agreements, leases, licenses and other
obligations or Liabilities of any nature whatsoever that constitute
Liabilities other than MMI Liabilities or to obtain in writing the
unconditional release of all parties to such arrangements other than
any member of the Millipore Group, so that, in any such case, Millipore
and its Subsidiaries will be solely responsible for such Liabilities.
Notwithstanding the foregoing, neither Millipore, MMI nor their
Subsidiaries shall be obligated to pay any consideration therefor to
any third party from whom such consents, approvals, substitutions and
amendments are requested.
2.7.4. INABILITY TO OBTAIN NOVATION OF LIABILITIES OTHER THAN MMI LIABILITIES.
----------------------------------------------------------------------
In the event that MMI is unable to obtain, or to cause to be obtained,
any required consent, approval, release, substitution or amendment
referred to in Subsection 2.7.3 above, the applicable member of the MMI
Group shall continue to be bound by such agreements, leases, licenses
and other obligations and shall, as agent or subcontractor for
Millipore, pay, perform and discharge fully, or cause to be paid,
performed or discharged all of such non-novated obligations or other
Liabilities of MMI for the benefit and at the risk of Millipore,
thereunder from and after the date hereof. MMI shall, without further
consideration, pay and
13
remit, or cause to be paid or remitted, to Millipore or the appropriate
Subsidiary, as the case may be, promptly all money, rights and other
consideration received by it or any member of the MMI Group in respect
of such performance. In the event that such performance requires the
expenditure of funds by MMI, then the amount of such expenditure by MMI
shall be deemed to be a Liability subject to indemnification by
Millipore pursuant to Section 7.3(i) of the Separation Agreement. If
and when any such consent, approval, release, substitution or amendment
shall be obtained or such agreement, lease, license or other rights or
obligations shall otherwise become assignable or able to be novated,
MMI shall thereafter assign, or cause to be assigned, all of its
rights, obligations and other Liabilities thereunder or any rights or
obligations of any member of the MMI Group to Millipore without payment
of further consideration and Millipore shall, without the payment of
any further consideration, assume such rights and obligations.
ARTICLE III
LITIGATION
Section 3.1. ALLOCATION. Notwithstanding any contrary provisions in the
Separation Agreement or in the Master Transition Services Agreement, on the
Separation Date, the responsibilities for management of the litigation
identified in a litigation disclosure letter (the "Litigation Disclosure
Letter"), which will be delivered by Millipore to MMI on the Separation Date,
shall be transferred in their entirety from Millipore and its Subsidiaries to
MMI and its Subsidiaries. As of the Separation Date and thereafter, MMI shall
manage the defense of such litigation and shall cause its applicable
Subsidiaries to do the same. Millipore and its Subsidiaries must first obtain
the prior consent of MMI or its applicable Subsidiary for any action taken
subsequent to the Separation Date in connection with the litigation identified
in the Litigation Disclosure Letter, which consent cannot be unreasonably
withheld or delayed. All other matters relating to such litigation, including
but not limited to indemnification for such claims, shall be governed by the
provisions of the Separation Agreement or in the Master Transition Services
Agreement.
SECTION 3.2. COOPERATION. Millipore and MMI and their respective Subsidiaries
shall cooperate with each other in the defense of any litigation covered under
this Article III and afford to each other reasonable access upon reasonable
advance notice to witnesses and Information (other than Information protected
from disclosure by applicable privileges) that is reasonably required to defend
this litigation (as "Information" is defined in the Separation Agreement). The
foregoing agreement to cooperate includes, but is not limited to, an obligation
to provide access to qualified assistance to provide information, witnesses and
documents to respond to discovery requests in specific lawsuits. In such cases,
cooperation shall be timely so that the party responding to discovery may meet
all court-imposed deadlines. The party requesting Information shall reimburse
the party providing Information consistent with the terms of Section 5.4 of the
Separation Agreement. The obligations set forth in this paragraph are more
clearly defined in Section 5.4 of the Separation Agreement.
14
ARTICLE IV
MISCELLANEOUS
Section 4.1. ENTIRE AGREEMENT. This GA&A Agreement, the Separation Agreement,
the other Ancillary Agreements and the Exhibits, Schedules and agreements
referenced or attached hereto and thereto, constitutes the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
SECTION 4.2. GOVERNING LAW. This GA&A Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
Commonwealth of Massachusetts as applied to transactions taking place wholly
within Massachusetts between Massachusetts residents. The Superior Court of
Middlesex County and/or the United States District Court for the Eastern
District of Massachusetts shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Article IX of the Separation Agreement.
SECTION 4.3. NOTICES. Notices, offers, requests or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to Millipore: Millipore Corporation
ββ βββββ ββββ
βββββββ, ββ βββββ
Attention: General Counsel
Fax: (βββ) βββ-ββββ
if to MMI: Millipore MicroElectronics, Inc.
ββββββββ ββββ
βββββββ, ββ βββββ
Attention: General Counsel
Fax: (βββ) βββ-ββββ
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the date of actual delivery.
SECTION 4.4. PARTIES IN INTEREST. This GA&A Agreement, including the Exhibits
and Schedules hereto, and the other documents referred to herein, shall be
binding upon and inure solely to the benefit of each party hereto and their
legal representatives and
15
successors, and nothing in this GA&A Agreement, express or implied, is intended
to confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this GA&A Agreement.
SECTION 4.5. COUNTERPARTS. This GA&A Agreement, including the Exhibits and
Schedules hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
SECTION 4.6. ASSIGNMENT. This GA&A Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective legal representatives
and successors. This GA&A Agreement may not be assigned by any party hereto,
without the other party's express written consent.
SECTION 4.7. SEVERABILITY. If any term or other provision of this GA&A
Agreement or the Exhibits or Schedules attached hereto is determined by a non-
appealable decision by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this GA&A Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this GA&A Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
SECTION 4.8. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this GA&A
Agreement or the Schedules or Exhibits attached hereto are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
SECTION 4.9. AMENDMENT. No change or amendment will be made to this GA&A
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
SECTION 4.10. AUTHORITY. Each of the parties hereto represents to the other
that: (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this GA&A Agreement; (b) the execution, delivery
and performance of this GA&A Agreement by it have been duly authorized by all
necessary corporate or other action; (c) it has duly and validly executed and
delivered this Agreement; and (d) this GA&A Agreement is a legal, valid and
binding obligation, enforceable against it in accordance
16
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equity principles.
SECTION 4.11. INTERPRETATION. The headings contained in this GA&A Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this GA&A
Agreement are for reference purposes only and shall not be conclusive as to the
meaning or interpretation of this GA&A Agreement. When a reference is made in
this GA&A Agreement to an Article or a Section, Exhibit or Schedule, such
reference shall be to an Article or Section of, or an Exhibit or Schedule to,
this GA&A Agreement unless otherwise indicated.
SECTION 4.12. CONFLICTING AGREEMENTS. In the event of conflict between this
GA&A Agreement and any other Ancillary Agreement or other agreement executed in
connection herewith or therewith, the provisions of such other agreement shall
prevail (other than as otherwise provided herein and in the Separation
Agreement).
IN WITNESS WHEREOF, each of the parties has caused this General Assignment
and Assumption Agreement to be executed on its behalf by its officers thereunto
duly authorized on the day and year first above written.
MILLIPORE CORPORATION MILLIPORE MICROELECTRONICS, INC.
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
17
SCHEDULE 1.13(viii)
SPECIFIC ASSETS TO BE TRANSFERRED TO MMI
----------------------------------------
All Assets reflected on the MMI Balance Sheets included in the IPO
Registration Statement
SCHEDULE 1.13(A)
EXCLUDED ASSETS
---------------
None
SCHEDULE 1.14(vi)
DIVESTED BUSINESSES WHICH CONTAIN LIABILITIES TO BE TRANSFERRED TO MMI
----------------------------------------------------------------------
None
SCHEDULE 1.14(vii)
SPECIFIC MMI LIABILITIES
------------------------
All Liabilities reflected on the MMI Balance Sheets included in the
IPO Registration Statement
SCHEDULE 1.14(A)
OTHER LIABILITIES EXCLUDED FROM MMI LIABILITIES
-----------------------------------------------
All Liabilities of those Subsidiaries being transferred to MMI in
accordance with Subsection 2.2.1 of this GA&A Agreement and the Non-
U.S. Plan which relate to or arise out of the businesses being
retained by Millipore.
SCHEDULE 2.1.3
DELAYED TRANSFER ASSETS AND LIABILITIES
---------------------------------------
None
18