TABLE OF CONTENTS
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TABLE OF CONTENTS
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AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
BETWEEN ▇. ▇. ▇▇▇▇▇ & CO.-▇▇▇▇. AND
MILLIPORE CORPORATION
November 18, 1996
Article 1Definition 1
Article 2Sale of Subject Business, Price 9
2.01 Sale of Business 9
2.02 Total Purchase Price. 10
2.03 Purchase Price Allocations 10
2.04 Local Purchase Prices 10
Article 3Closing 12
3.01 Scheduled Closing Date 12
3.02 Time and Place of Closing, Simultaneity 12
3.03 Conveyances of the Subject Business in France, Ireland,
the U.K. and the U.S.; Payments. 12
3.04 Conveyances of the Subject Business in Other Countries;
Payments. 14
3.05 Ancillary Agreements. 16
3.06 Amicon Companies Excluded Assets and
Liabilities 16
3.07 Method of Closing Payments 17
3.08 Other Documents to be Executed and Delivered 17
3.09 Further Assurances of Sellers 18
3.10 Further Assurances of Buyers. 18
Article 4Purchase Prices, Post-Closing Adjustments 18
4.01 Closing of Books 18
4.02 Definitions. 19
4.03 Computations 19
4.04 Closing Statement 19
4.05 Acceptance 19
4.06 Non-Acceptance, Resolution of Disputes 20
4.07 Payment of Adjustments 20
Article 5Sellers' Representations 21
5.01 Selling Companies' Corporate Status and
Authority 21
5.02 Amicon Companies Corporate Status 22
5.03 Amicon Companies Capitalization 22
5.04 No Conflict 23
5.05 Total Subject Assets and Amicon Companies
Assets; Title Claims 23
5.06 Financial Statements 24
5.07 Litigation 24
5.08 Asset Disposition or Loss 25
5.09 Insurance 25
5.10 Contracts 25
5.11 Labor and Employment 26
5.12 Employee Benefit Plans 26
5.13 Environmental Compliance; Remediation 26
5.14 Intellectual Property 27
5.15 Permits; Compliance with Laws 27
5.16 Taxes 28
5.17. Absence of Certain Changes 29
5.18 Employees 30
Article 6Buyers' Representations 30
6.01 Buying Companies' Corporate Status and
Authority 30
6.02 No Conflict 31
6.03 Sufficient Funds 31
Article 7Buyers' Investigation 31
7.01 Financial Information 31
7.02 No Additional Representations 31
7.03 Effect of Transfer 32
Article 8Covenants 32
8.01 Access and Inquiry 32
8.02 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act 32
8.03 Licenses and Permits 32
8.04 Notices to Third Parties 33
8.05 Reasonable Efforts 33
8.06 Authorization of Selling and Buying Companies 33
8.07 Exclusivity 33
Article 9Conduct of Business Prior to the Closing 34
9.01 Operation in Ordinary Course 34
Article 10Conditions Precedent to the Obligations of Buyers 35
10.01 Accuracy of Representations and Warranties 35
10.02 Performance of Covenants and Agreements 36
10.03 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and Other GovernmentalApprovals36
10.04 Permits and Consents 36
10.05 Litigation 36
10.06 Certificate of Grace. 36
10.07 Opinion of Counsel 37
Article 11Conditions Precedent to the Obligations of Sellers 37
11.01 Accuracy of Representations and Warranties 37
11.02 Performance of Covenants and Agreements 37
11.03 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and Other
Governmental Approvals 37
11.04 Permits and Consents 37
11.05 Litigation 38
11.06 Certificate of Buyer 38
11.07 Opinion of Counsel 38
Article 12Employee Matters 38
12.01 Employees of Amicon Companies 38
12.02 Current and Continued Employees 39
12.03 No Obligation to Hire Current Employees. 39
12.04 Terms of Employment 39
12.05 Recognition of Seniority 40
12.06 Employment Related Indemnities 40
12.07 Employee Information Sharing 41
Article 13Termination 41
13.01 Rights to Terminate 41
13.02 Consequences of Termination 41
Article 14General Indemnification 42
14.01 Definitions 42
14.02 Sellers' Indemnification 43
14.03 Buyers' Indemnification 43
14.04 Limitations 44
14.05 Special Environmental Indemnification 44
14.06 Defense of Third Party Claims 46
14.07 No Consequential or Lost Profit Damages 48
Article 15Cooperation in Various Matters 48
15.01 Mutual Cooperation 48
15.02 Preservation of Buyers' Files and Records 49
15.03 Preservation of Selling Companies' Files
and Records49
Article 16Post-Closing Matters 49
16.01 Reports 49
16.02 Renewal of Guaranteed Items 50
16.03 Payment and Discharge of Certain
Intercompany Liabilities 50
16.04 Use of "Grace" Name 50
16.05 Intercompany Agreements 51
16.06 Confidentiality 51
16.07 Income Tax Matters 52
16.08 Power of Attorney 54
Article 17Expenses and Taxes 55
17.01 Buyers' Expenses 55
17.02 Sellers' Expenses 55
17.03 Transfer Taxes 55
17.04 VAT Included in Total Subject Assets 56
Article 18Notices 56
18.01 Notices 56
Article 19General 57
19.01 Entire Agreement 57
19.02 Governing Law 58
19.03 Submission to Jurisdiction 58
19.04 Governing Language 58
19.05 Successors 58
19.06 Amendments and Waivers 58
19.07 Counterparts 59
19.08 Captions. 59
19.09 Specific Performance 59
EXHIBITS
Number Description
1. Amicon Companies Assets
2. French Subject Assets and French Subject Liabilities
3. Irish Subject Assets and Irish Subject Liabilities
4. Italian Subject Assets and Italian Subject Liabilities
5. Japanese Subject Assets and Japanese Subject
Liabilities
6. Netherlands Subject Assets and Netherlands Subject
Liabilities
7. Swedish Subject Assets and Swedish Subject Liabilities
8. Swiss Subject Assets and Swiss Subject Liabilities
9. U.S. Subject Assets, U.S. Subject Liabilities, U.S.
Excluded Assets and U.S. Excluded Liabilities
10. Employee Benefits Agreement
11. French Tax Procedures Agreement
12. Insurance Procedures Agreement
13. Patent License Agreements
14. Trademark License Agreement
15. Transition Services Agreements
SCHEDULES
2.04 Local Purchase Prices
4.03 Changes in Accounting Principles Used to Determine
Closing Working Capital Amount
5.03(a) Amicon Companies Capitalization
5.03(b) Amicon Companies Dividends
5.04 Conflicts
5.05(b)(i) List of Owned Real Property
5.05(b)(ii) List of Leased Real Property
5.05(c) (i) Liens For Borrowed Money
5.05(c)(ii) Defects in Title
5.07(a) Pending Claims, Actions, Suits or Proceedings
5.07(b) Governmental Investigations
5.08 Asset Disposition or Loss
5.09 Insurance
5.10(a) Loan/Credit Agreements
5.10(b) Material Contracts
5.10(c) Non-Competition Agreements
5.10(d) Contracts Outside Ordinary Course of Business
5.10(e) Sales Orders, Purchase Orders and Capital
Expenditures
5.10(f) Partnership and Joint Venture Agreements
5.10(g) Oral Contracts
5.11 Labor and Employment, Collective Bargaining
Agreements
5.12 Employee Benefit Plans
5.13(a) Environmental Compliance
5.13(b) Environmental Remediation Sites
5.14(a) Intellectual Property - List of all patents,
patent applications, trademark registrations and
trademark registration applications and
proprietary software
5.14(b) Intellectual Property - Litigation
5.14(c) Intellectual Property - Licenses to Third Parties
5.14(d) Intellectual Property - Licenses from Third
Parties
5.15(a) Permits
5.15(b) Compliance with Laws
5.17(a) Absence of Certain Changes - Cash Management
Practices
5.17(b) Absence of Certain Changes - Increases
in Employee Compensation
5.17(c) Absence of Certain Changes - Internal Accounting
Procedures
5.17(d) Absence of Certain Changes - Casualty Loss
5.17(e) Absence of Certain Changes - Loss of Customer
Base, Reduction in Sales
5.17(f) Absence of Certain Changes - Employee Loans and
Advances
5.17(g) Absence of Certain Changes - Plant, Property
and Equipment Maintenance
5.18 List of Subject Business - Employees
Compensated in Amounts in Excess
of $50,000
12.02 Current Employees
OTHER
10.06 Certificate of Grace
11.06 Certificate of Buyer
AMICON
WORLDWIDE PURCHASE AND SALE AGREEMENT
AGREEMENT dated November 18, 1996 by and among ▇. ▇. ▇▇▇▇▇ &
CO.-▇▇▇▇. ("▇▇▇▇▇") and MILLIPORE CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, the Subject Business (as hereinafter defined) is
conducted by Grace and certain of its subsidiaries in the United
States, the United Kingdom, Ireland, France, Japan and other
countries;
WHEREAS, Grace and certain subsidiaries of Grace desire to
sell, and Buyer and certain subsidiaries of Buyer desire to
purchase, the Subject Business on the terms of this Agreement by
the transfer of the capital stock of subsidiaries of Grace in
France, Germany, Canada and the United Kingdom and by the
transfer of assets and liabilities of the Subject Business in the
United States, Ireland and other countries;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereby agree as follows:
Article 1
Definitions
For purposes of this Agreement, including the Schedules and
Exhibits, the following defined terms have the meanings set forth
in this Article. All Article and Section numbers, and Schedule
and Exhibit references, used in this Agreement refer to Articles
and Sections of this Agreement, and Schedules and Exhibits
attached hereto or delivered simultaneously herewith, unless
otherwise specifically described.
"Amicon Canada" means Amicon Canada Limited, a Canadian
corporation.
"Amicon Canada Shares" means all of the issued and
outstanding shares of capital stock of Amicon Canada.
"Amicon Companies" means Amicon Canada, Amicon Germany,
Amicon U.K. and the Prochrom Companies. "Amicon Company" means
one of the Amicon Companies.
"Amicon Companies Assets" means the assets, properties and
rights of the Amicon Companies, as more particularly described in
Exhibit 1.
"Amicon Companies Liabilities" means all liabilities and
obligations of the Amicon Companies of whatever nature, whether
accrued, absolute, contingent or other and whether known or
unknown, except for (a) liabilities related to Income Taxes (as
defined in Section 14.01) relating to periods ending on or prior
to December 31, 1996, (b) liabilities owed to any member of the
Grace Group other than liabilities included in the Surviving
Intercompany Accounts, (c) liabilities under Grace Insurance
Programs as provided in the Insurance Procedures Agreement, (d)
indebtedness for borrowed money, including any accrued interest
thereon, owed to third parties who are not members of the Grace
Group, (e) liabilities and obligations with respect to employee
benefit plans and funds maintained by or in conjunction with
another member of the Grace Group, except as provided in the
Employee Benefits Agreement, and (f) liabilities for expenses
incurred relating to the final payment of certain amounts payable
by Grace France in connection with the acquisition by Grace
France of Prochrom in 1991.
"Amicon Germany" means Amicon G.m.b.H., a German
corporation.
"Amicon Germany Shares" means all of the issued and
outstanding shares of capital stock of Amicon Germany.
"Amicon Ireland" means Amicon Ireland Limited, an Irish
corporation.
"Amicon U.K." means Amicon Limited, a United Kingdom
corporation.
"Amicon U.K. Shares" means all of the issued and outstanding
shares of capital stock of Amicon U.K.
"Amicon Securities" means the Amicon Canada Shares, the
Amicon Germany Shares, the Amicon U.K. Shares and the Prochrom
Shares.
"Ancillary Agreements" means the agreements described in
Section 3.05.
"Base Working Capital Amount" has the meaning given such
term in Section 2.02.
"Buyer" means Millipore Corporation, a Massachusetts
corporation.
"Buyer France" means Millipore S.A.
"Buyer Group" means, collectively, Buyer and its majority-
owned subsidiaries.
"Buyer Ireland" means Millipore Dublin International Finance
Company.
"Buyer Italy" means Millipore S.p.A.
"Buyer Japan" means Nihon Millipore Limited.
"Buyer Netherlands" means Millipore International Holding
Company B.V.
"Buyer Sweden" means Millipore A.B.
"Buyer Switzerland" means Millipore A.G.
"Buying Companies" means, collectively, Buyer, Buyer France,
Buyer Ireland, Buyer Italy, Buyer Japan, Buyer Netherlands, Buyer
Sweden and Buyer Switzerland.
"Canadian Purchase Price" has the meaning given to such term
in Section 2.03.
"Closing" means the actions to be taken by the Buying
Companies and the Selling Companies and their affiliates
described in Sections 3.03 through 3.08.
"Closing Assumption Agreements" means the Assumption
Agreements to be executed and delivered by the Buying Companies
at the Closing.
"Closing Conveyance Documents" means the deeds, bills of
sale, assignments, share transfer forms and other instruments of
conveyance to be executed and delivered by the Selling Companies
at the Closing.
"Closing Current Assets", "Closing Current Liabilities" and
"Closing Working Capital Amount" have the respective meanings
given such terms in Section 4.02.
"Closing Date" means the date the Closing occurs.
"Closing Statement" has the meaning given such term in
Section 4.04.
"Code" means the United States Internal Revenue Code of
1986, as amended, and the rules and regulations thereunder.
"Continued Employees" has the meaning given such term in
Section 12.02(b).
"Current Employees" has the meaning given such term in
Section 12.02(a).
"DOJ" means the United States Department of Justice.
"Employee Benefits Agreement" means the Ancillary Agreement
referred to in Section 3.05(a).
"Environmental Law" means any decree, order or arbitration
award, any law, statute or regulation, or any license,
authorization or permit from, any Governmental Authority or court
relating to occupational health and safety or the environment
(including, without limitation, federal, state, local and foreign
laws, statutes, rules and regulations relating to environmental
matters and contamination of any type, including: (i) treatment,
storage, disposal, generation and transportation of Hazardous
Substances; (ii) air, water and noise pollution; (iii) ground
water contamination; (iv) the release or threatened release into
the environment of Hazardous Substances, including without
limitation emissions, discharges, injections, spills, escapes, or
dumping of pollutants, contaminants or chemicals; (v) the
protection of wildlife, marine sanctuaries and wetlands; (vi)
underground or other storage tanks or vessels, abandoned or
discarded barrels, containers and other closed receptacles; (vii)
health and safety of employees; or (viii) otherwise relating to
the manufacture, processing, use, distribution, treatment
storage, disposal, transportation, or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous
substances or solid or hazardous waste).
"FTC" means the United States Federal Trade Commission.
"French Purchase Price" has the meaning given such term in
Section 2.04.
"French Subject Assets" and "French Subject Liabilities"
have the respective meanings given such terms in Exhibit 2.
"French Tax Procedures Agreement" means the Ancillary
Agreement referred to in Section 3.05(b).
"German Purchase Price" has the meaning given to such term
in Section 2.04.
"Governmental Authorities, means all entities exercising
executive, legislative, judicial, regulatory or administrative
functions of government, whether the scope of such functions are
transnational, national, or limited to certain states, provinces,
municipalities or other political subdivisions, including but not
limited to agencies, departments, boards, commissions or other
instrumentalities of any country or any political subdivisions
thereof in which the Subject Business is being conducted by the
Grace Group. "Governmental Authority, means one of the
Governmental Authorities.
"Grace" means ▇. ▇. ▇▇▇▇▇ & Co.-▇▇▇▇., a Connecticut
corporation.
"Grace Executives" means ▇. ▇. ▇▇▇▇▇▇▇, a Vice President of
Grace, and ▇. ▇. ▇▇▇▇▇, a former Senior Vice President of Grace
and acting chairman of Seller-U.S.
"Grace France" means Grace S.A., a French corporation.
"Grace Group" means, collectively, Grace and Grace's
majority owned subsidiaries.
"Grace Holdings" means Grace International Holdings, Inc., a
Delaware corporation.
"Grace Italy" means Grace Italiana S.p.A., an Italian
corporation.
"Grace Japan" means Grace Japan K.K., a Japanese
corporation.
"Grace Netherlands" means Grace B.V., a Netherlands
corporation.
"Grace Sweden" means Grace AB, a Swedish corporation.
"Grace Switzerland" means Grace A.G., a Swiss corporation.
"Hazardous Substances, means (a) petroleum or petroleum
products; (b) hazardous substances, hazardous wastes, hazardous
materials or toxic substances as defined under Environmental Law;
or (c) any other chemical, material or substance, the presence or
release of which in or into the environment is regulated by any
Governmental Authority.
"HSR Act" means the U.S. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations thereunder.
"Income Tax" has the meaning given such term in Section
14.01.
"Insurance Procedures Agreement" means the Ancillary
Agreement referred to in Section 3.05(c).
"Intellectual Property" shall mean collectively all
intellectual property assets and rights owned by, or held under
license from a third party to, Grace or any other Selling Company
or Amicon Company, or any of their respective affiliates, and
used in the Subject Business, including without limitation the
following:
(a) all right, title and interest in and to all
patents, copyrights, copyright registrations and
applications therefor, patent applications, trademark
licenses, copyright licenses, and patent licenses and
copyrights used, acquired, developed or currently under
development for use in the Subject Business as set forth on
the schedule to Section 5.14(a);
(b) all right, title and interest in and to all
technologies, designs, methods, formulations, trade secrets,
know-how and processes and licenses, used in, acquired or
developed or currently under development for use exclusively
in the Subject Business and software used primarily in the
Subject Business;
(c) subject to the provisions of the Trademark License
Agreement referred to in Section 3.05(e), all right, title,
and interest in and to the trademark "AMICON" in the U.S.
and all foreign jurisdictions, and all good will associated
therewith and all U.S. and foreign trademark registrations
and applications obtained or filed with respect to such
trademark, as set forth on the schedule to Section 5.14(a);
and
(d) the other trade names, trademarks and trademark
registrations and applications used by the Subject Business
and all good will associated therewith as set forth on the
schedule to Section 5.14(a).
"Irish Purchase Price" has the meaning given to such term in
Section 2.04.
"Irish Subject Assets" and "Irish Subject Liabilities" have
the respective meanings given such terms in Exhibit 3.
"Italian Purchase Price" has the meaning given such term in
Section 2.04.
"Italian Subject Assets" and "Italian Subject Liabilities"
have the respective meanings given such terms in Exhibit 4.
"Japanese Purchase Price" has the meaning given such term in
Section 2.04.
"Japanese Subject Assets" and "Japanese Subject Liabilities"
have the respective meanings given such terms in Exhibit 5.
"Knowledge" of the Grace Executives or the Subject Business
Executives means the actual knowledge of such individuals on the
date of this Agreement or on the date of the Closing, as
applicable and, in the case of the Subject Business Executives,
after due inquiry of those of their direct reports who are likely
to be informed with respect to any matter herein qualified by
knowledge. With respect to each of the representations and
warranties set forth in Article 5, Grace shall cause the Grace
Executives to consult with the Subject Business Executives.
"Local Purchase Prices" means each of the purchase prices
described in Section 2.04.
"Netherlands Purchase Price" has the meaning given such term
in Section 2.04.
"Netherlands Subject Assets" and "Netherlands Subject
Liabilities" have the respective meanings given such terms in
Exhibit 6.
"Prochrom" means Prochrom S.A., a French corporation.
"Prochrom Companies" means Prochrom, Prochrom R&D, Prochrom,
Inc., an Indiana corporation and a subsidiary of Prochrom, and
Prochrom OY, a Finnish corporation and a subsidiary of Prochrom.
"Prochrom R&D" means Prochrom Recherche et Developpment
S.A., a French corporation and a subsidiary of Prochrom.
"Prochrom Shares" means 72,600 shares of capital stock of
Prochrom, FF100 statutory par value per share.
"PW Statements" means the Special-Purpose Combined Statement
of Working Capital and the Special-Purpose Combined Statement of
Earnings Before Interest, Taxes and Amortization of the Subject
Business as of and for the year ended December 29, 1995.
"Scheduled Closing Date" has the meaning given such term in
Section 3.01.
"Secondary Local Purchase Prices" means each of the Local
Purchase Prices described in Section 2.04.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge or other security interest, other than (a)
mechanic's, materialmen's and similar liens, (b) liens for taxes
not yet due and payable, (c) purchase money liens and liens
securing rental payments under capital lease arrangements, and
(d) other liens arising in the ordinary course of business and
not incurred in connection with the borrowing of money.
"Seller-U.S." means Amicon, Inc., a Delaware corporation,
and a subsidiary of Grace.
"Selling Companies" means, collectively, Grace, Grace
France, Grace Holdings, Grace Italy, Grace Japan, Grace
Netherlands, Grace Sweden, Grace Switzerland, Amicon Ireland,
and Seller-U.S.
"Subject Business" means the development, manufacture,
marketing and sale by the Selling Companies and the Amicon
Companies of molecular separation and purification products and
systems, using ultrafiltration, liquid chromatography and other
separation methods, and the purchasing, distribution, research,
service, management and administrative activities incident
thereto. The Subject Business does not include Grace's
artificial pancreas and artificial liver businesses or the silica
or industrial membrane businesses of Grace's ▇▇▇▇▇▇▇ product
line.
"Subject Business Executives" means ▇. ▇. ▇▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇ ▇▇, ▇. ▇. ▇▇▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇
and P. Hilaireau.
"Surviving Intercompany Accounts" means amounts payable to
Grace's ▇▇▇▇▇▇▇ product line for the purchase of silica media,
and amounts payable or receivable as of the Closing that are (a)
included in Total Subject Assets, Total Subject Liabilities or
the assets or liabilities of one of the Amicon Companies, and (b)
payable to or receivable from another Subject Business unit of
the Grace Group.
"Swedish Purchase Price" has the meaning given such term in
Section 2.04.
"Swedish Subject Assets" and "Swedish Subject Liabilities"
have the respective meanings given such terms in Exhibit 7.
"Swiss Purchase Price" has the meaning given such term in
Section 2.04.
"Swiss Subject Assets" and "Swiss Subject Liabilities" have
the respective meanings given such terms in Exhibit 8.
"Total Excluded Assets" means all assets, properties and
rights of the Selling Companies that are not included in the
Total Subject Assets.
"Total Excluded Liabilities" means all liabilities and
obligations of the Selling Companies that are not included in the
Total Subject Liabilities.
"Total Purchase Price" has the meaning given such term in
Section 2.02.
"Total Subject Assets" means, collectively, the French
Subject Assets, the Irish Subject Assets, the Italian Subject
Assets, the Japanese Subject Assets, the Netherlands Subject
Assets, the Swedish Subject Assets, the Swiss Subject Assets and
the U.S. Subject Assets.
"Total Subject Liabilities" means, collectively, the French
Subject Liabilities, the Irish Subject Liabilities, the Italian
Subject Liabilities, the Japanese Subject Liabilities, the
Netherlands Subject Liabilities, the Swedish Subject Liabilities,
the Swiss Subject Liabilities and the U.S. Subject Liabilities.
"Transaction Documents" means the Ancillary Agreements, the
Closing Assumption Agreements and the Closing Conveyance
Documents.
"U.K. Purchase Price" has the meaning given to such term in
Section 2.04.
"U.S. Purchase Price" has the meaning given such term in
Section 2.04.
"U.S. Subject Assets", "U.S. Subject Liabilities", "U.S.
Excluded Assets" and "U.S. Excluded Liabilities" have the
respective meanings given such terms in Exhibit 9.
"Tax Return" means any return, declaration, report, claim
for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Valuation Time" means the close of business on the Closing
Date.
"WRG" means ▇. ▇. ▇▇▇▇▇ & Co., a Delaware corporation, which
owns all of the issued and outstanding shares of capital stock of
Grace.
Article 2
Sale of Subject Business, Price
2.01 Sale of Business. On the terms and subject to the
conditions of this Agreement, Grace shall sell and shall cause
the other Selling Companies to sell and Buyer shall purchase and
shall cause the other Buying Companies to purchase the Subject
Business as follows: the Selling Companies shall convey the Total
Subject Assets and the Amicon Securities to the Buying Companies,
and in exchange therefor, the Buying Companies shall assume the
Total Subject Liabilities and shall pay the Local Purchase Prices
(which shall equal the Total Purchase Price) to the Selling
Companies.
2.02 Total Purchase Price. "Total Purchase Price"
means (a) US$125,000,000, less (b) all indebtedness of the
Subject Business for borrowed money from third parties (both
short-term and long-term), including all unpaid interest and fees
thereon, outstanding as of the Closing Date as translated into
U.S. dollars at the exchange rate for the date preceding the
Closing Date as reported in the Wall Street Journal, plus any
increase, or less any decrease, in (c) the amount of the Closing
Working Capital Amount from the Base Working Capital Amount. The
"Base Working Capital Amount" is $17,376,000.
2.03 Purchase Price Allocations. The Total Purchase Price
shall be allocated among the Local Purchase Prices as provided in
Section 2.04. The parties acknowledge and agree that the
allocations set forth in the schedule to Section 2.04 reflect
their agreement concerning the relative fair market values of the
Subject Business in each country. In all tax returns and other
filings with Governmental Authorities, the parties agree to
consistently use the Total Purchase Price allocation that is set
forth in such schedule.
2.04 Local Purchase Prices
(a) The "French Purchase Price" means the portion of the
Total Purchase Price allocated to France pursuant to the schedule
to this Section.
(b) The "Irish Purchase Price" means the portion of the
Total Purchase Price allocated to Ireland pursuant to the
schedule to this Section.
(c) The "U.K. Purchase Price" means the portion of the
Total Purchase Price allocated to the United Kingdom pursuant to
the schedule to this Section.
(d) The "U.S. Purchase Price" means the portion of the
Total Purchase Price allocated to the U.S. pursuant to the
schedule to this Section. The U.S. Purchase Price shall be
allocated among the categories of assets constituting the U.S.
Subject Assets in accordance with Section 1060 of the Code as
agreed by the parties.
(e) The "Canadian Purchase Price" means an amount equal to
the book value of the assets of Amicon Canada included in the
Amicon Companies Assets less the book value of the liabilities of
Amicon Canada included in the Amicon Companies Liabilities, as of
the Valuation Time, as reflected in the Closing Statement plus
any additional amount allocated to the Amicon Canada Shares
pursuant to the schedule to this Section.
(f) The "German Purchase Price" means an amount equal to
the book value of the assets of Amicon Germany included in the
Amicon Companies Assets less the book value of the liabilites of
Amicon Germany included in the Amicon Companies Liabilities, as
of the Valuation Time, as reflected in the Closing Statement plus
any additional amount allocated to the Amicon Germany Shares
pursuant to the schedule to this Section.
(g) The "Italian Purchase Price" means an amount equal to
the book value of the Italian Subject Assets, less the book value
of the Italian Subject Liabilities, as of the Valuation Time, as
reflected in the Closing Statement plus any additional amount
allocated to the Subject Business in Italy pursuant to the
schedule to this Section.
(h) The "Japanese Purchase Price" means an amount equal to
the book value of the Japanese Subject Assets, less the book
value of the Japanese Subject Liabilities, as of the Valuation
Time, as reflected in the Closing Statement plus any additional
amount allocated to the Subject Business in Japan pursuant to the
schedule to this Section.
(i) The "Netherlands Purchase Price" means an amount equal
to the book value of the Netherlands Subject Assets, less the
book value of the Netherlands Subject Liabilities, as of the
Valuation Time, as reflected in the Closing Statement plus any
additional amount allocated to the Subject Business in the
Netherlands pursuant to the schedule to this Section.
(j) The "Swedish Purchase Price" means an amount equal to
the book value of the Swedish Subject Assets, less the book value
of the Swedish Subject Liabilities, as of the Valuation Time, as
reflected in the Closing Statement plus any additional amount
allocated to the Subject Business in Sweden pursuant to the
schedule to this Section.
(k) The "Swiss Purchase Price" means an amount equal to the
book value of the Swiss Subject Assets, less the book value of
the Swiss Subject Liabilities, as of the Valuation Time, as
reflected in the Closing Statement plus any additional amount
allocated to the Subject Business in Switzerland pursuant to the
schedule to this Section.
Each Local Purchase Price described in this Section shall be
stated in U.S. dollars. Any adjustment to the Total Purchase
Price as contemplated by Section 2.02(c) and Article 4 shall be
allocated to the country to which the adjustment relates or as
otherwise agreed by the parties.
Article 3
Closing
3.01 Scheduled Closing Date. The "Scheduled Closing
Date" shall be the first Friday after January 3, 1997 which is at
least five business days following the fulfillment of the
conditions set forth in Sections 10.03 and 11.03, or such other
day as Grace and Buyer may agree to in an amendment to this
Agreement executed and delivered in accordance with Section
19.06. For purposes of this Article, "business day" shall mean a
day that is not a Saturday or Sunday, nor a day on which banks
are generally closed in the City of New York.
3.02 Time and Place of Closing, Simultaneity. The
Closing shall take place on the Scheduled Closing Date, subject
to the fulfillment or waiver of all conditions set forth in
Articles 10 and 11, at 10:00 a.m. U.S. Eastern Time at the
offices of Grace, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-
1010, U.S.A., or at such other time or location as may be agreed
upon by Grace and Buyer. All of the actions to be taken and
documents to be executed and delivered at the Closing shall be
deemed to be taken, executed and delivered simultaneously, and no
such action, execution or delivery shall be effective until all
actions to be taken and executions and deliveries to be effected
at the Closing are complete.
3.03 Conveyances of the Subject Business in France,
Ireland, the U.K. and the U.S.; Payments.
At the Closing:
(a) France.
(1) Grace France shall cause the Prochrom Shares
(whether or not such shares are held by Grace France on the
date of this Agreement) to be transferred to Buyer or its
designees, including delivery to Buyer or its designees of
the necessary orders of transfer ("ordres de mouvement") of
the Prochrom Shares not held by Grace France to Buyer
France(or its designees).
(2) Grace France shall deliver to Buyer France (or its
designees) letters of resignation of each director of the
Prochrom Companies, as designated by Buyer in writing not
less than 10 days prior to the Closing Date.
(3) Grace France shall transfer its right, title and
interest in and to the French Subject Assets to Buyer France
and Buyer France shall assume the French Subject Liabilities
by means of a duly executed deed of sale in the French
language.
(4) Buyer (or its designee) shall pay to Grace in U.S.
dollars, on account of the French Purchase Price, the amount
specified in Section 3.07.
(b) Ireland.
(1) Amicon Ireland shall execute and deliver to Buyer
Ireland a deed, with covenants against grantor's acts, to
the real property at Amicon Ireland's Limerick facility.
(2) Amicon Ireland shall transfer its right, title and
interest in and to all other Irish Subject Assets to Buyer
Ireland and Buyer Ireland shall assume the Irish Subject
Liabilities by means of a duly executed ▇▇▇▇ of sale and
assumption agreement.
(3) Buyer Ireland shall pay to Amicon Ireland in U.S.
dollars, on account of the Irish Purchase Price, the amount
specified in Section 3.07.
(c) U.K.
(1) Grace Holdings shall cause the Amicon U.K. Shares
to be transferred to Buyer or its designees by means of a
legally effective share transfer form.
(2) Grace Holdings shall deliver to Buyer (or its
designees) letters of resignation of each director of Amicon
U.K., as designated by Buyer in writing not less than 10
days prior to the Closing Date.
(3) Buyer shall pay to Grace Holdings in U.S.
dollars, on account of the U.K. Purchase Price, the amount
specified in Section 3.07.
(d) U.S.
(1) Seller-U.S. shall execute and deliver to Buyer (i)
a deed, with covenants against grantor's acts, to the real
property at Seller-U.S.'s Danvers, Massachusetts facility
(accompanied by a certificate complying with Section 1445 of
the Code stating that Seller-U.S. is not a foreign person
subject to withholding taxes), (ii) an assignment of patents
included in the U.S. Subject Assets, and (iii) a general
▇▇▇▇ of sale with respect to its right, title and interest
in and to the other U.S. Subject Assets.
(2) Buyer shall execute and deliver to Seller-U.S. an
assumption agreement with respect to the U.S. Subject
Liabilities.
(3) Grace shall execute and deliver to Buyer an
assignment of patents with respect to the patents owned by
Grace listed on the schedule to Section 5.14(a) and an
assignment of trademarks owned by Grace and used primarily
by the Subject Business.
(4) Buyer shall pay to Seller-U.S. in U.S. dollars, on
account of the U.S. Purchase Price, the amount specified in
Section 3.07.
3.04 Conveyances of the Subject Business in Other
Countries; Payments.
At the Closing:
(a) Canada
(1) Grace shall cause the Amicon Canada Shares to be
transferred to Buyer or its designees by means of a legally
effective share transfer form.
(2) Grace shall deliver to Buyer (or its designees)
letters of resignation of each director of Amicon Canada, as
designated by Buyer in writing not less than 10 days prior
to the Closing Date.
(3) Buyer shall pay to Grace in U.S. dollars, on
account of the Canadian Purchase Price, the amount specified
in Section 3.07.
(b) Germany.
(1) Grace Holdings shall cause the Amicon Germany
Shares to be transferred to Buyer or its designees by means
of a legally effective share assignment agreement.
(2) Grace Holdings shall deliver to Buyer (or its
designees) letters of resignation of each director of Amicon
Germany, as designated by Buyer in writing not less than 10
days prior to the Closing Date.
(3) Buyer shall pay to Grace Holdings in U.S. dollars,
on account of the German
Purchase Price, the amount
specified in Section 3.07.
(c) Italy.
(1) Grace Italy shall transfer its right, title and
interest in and to the Italian Subject Assets to Buyer Italy
and Buyer Italy shall assume the Italian Subject Liabilities
by means of a duly executed purchase and sale agreement
conforming with the minimum requirements of Italian law.
(2) Buyer Italy shall pay to Grace Italy in U.S.
dollars, on account of the Italian Purchase Price, the
amount specified in Section 3.07.
(d) Japan.
(1) Grace Japan shall transfer its right, title and
interest in and to the Japanese Subject Assets to Buyer
Japan and Buyer Japan shall assume the Japanese Subject
Liabilities by means of a duly executed ▇▇▇▇ of sale and
assumption agreement substantially in the form of Exhibit
13.
(2) Buyer Japan shall pay to Grace Japan on account
of the Japanese Purchase Price, the amount specified in
Section 3.07, which amount shall be stated in U.S. dollars
and translated into, and payable in, Japanese Yen, and shall
be the Japanese Yen equivalent of a stated amount of U.S.
dollars translated into Japanese Yen using the exchange rate
on the date preceding the Closing Date as reported in the
Wall Street Journal.
(e) Netherlands.
(1) Grace Netherlands shall transfer its right, title
and interest in and to the Netherlands Subject Assets to
Buyer Netherlands and Buyer Netherlands shall assume the
Netherlands Subject Liabilities by means of a duly executed
▇▇▇▇ of sale and assumption agreement.
(2) Buyer Netherlands shall pay to Grace Netherlands
in U.S. dollars, on account of the Netherlands Purchase
Price, the amount specified in Section 3.07.
(f) Sweden.
(1) Grace Sweden shall transfer its right, title and
interest in and to the Swedish Subject Assets to Buyer
Sweden and Buyer Sweden shall assume the Swedish Subject
Liabilities by means of a duly executed ▇▇▇▇ of sale and
assumption agreement.
(2) Buyer Sweden shall pay to Grace Sweden in U.S.
dollars, on account of the Swedish Purchase Price, the
amount specified in Section 3.07.
(g) Switzerland.
(1) Grace Switzerland shall transfer its right, title
and interest in and to the Swiss Subject Assets to Buyer
Switzerland and Buyer Switzerland shall assume the Swiss
Subject Liabilities by means of a duly executed ▇▇▇▇ of sale
and assumption agreement.
(2) Buyer Switzerland shall pay to Grace Switzerland
in U.S. dollars, on account of the Swiss Purchase Price,
the amount specified in Section 3.07.
3.05 Ancillary Agreements. At the Closing, each of the
following agreements shall be executed and delivered by the
parties thereto:
(a) Employee Benefits Agreement Grace and Buyer in the
form of Exhibit 10;
(b) French Tax Procedures Agreement among Grace
France, Prochrom, Prochrom R&D and Buyer France
substantially in the form of Exhibit 11;
(c) Insurance Procedures Agreement among WRG and Buyer
in the form of Exhibit 12;
(d) Patent License Agreements between Grace and Buyer
in the forms of Exhibit 13 with respect to (i) the license
by Grace to Buyer of certain patent rights with respect to
processes for preparing membranes, and (ii) the license by
Grace to Buyer of certain patent rights with respect to
polyimide membranes;
(e) Trademark License Agreement between Grace and
Buyer in the form of Exhibit 14 with respect to the license
of the Amicon trademark for use by Grace's Specialty
Polymers unit; and
(f) Transition Services Agreements between certain
Selling Companies and certain Buying Companies in the form
of Exhibit 15 with schedules of space and services in
substantially similar form as those attached thereto, to the
extent required by the Buyer Group.
3.06 Amicon Companies Excluded Assets and
Liabilities.On the Closing Date, Grace shall (a) cause all
rights, properties and other assets of each Amicon Company that
are not included in Amicon Companies Assets to be sold, assigned
or otherwise conveyed by such Amicon Company to Grace or Grace's
designees, and (b) assume or cause one of its designees (other
than another Amicon Company) to assume all liabilities and
obligations of each Amicon Company that are not included in
Amicon Companies Liabilities except for indebtedness for borrowed
money of the Prochrom Companies which shall remain outstanding
after the Closing. The sale, assignment or conveyance of such
rights, properties and other assets, and the assumption of such
liabilities and obligations shall not create any liabilities
(absolute, accrued, contingent or otherwise, known or unknown) or
obligations of the Amicon Companies that shall survive the
Closing.
3.07 Method of Closing Payments. At the Closing, the
aggregate amount to be paid by the Buying Companies shall be such
amount as may be agreed upon by Grace and Buyer in writing not
later than 10 business days prior to the Closing Date, which
amount shall be the parties' best estimate of the Total Purchase
Price after giving effect to the adjustments to be made under
Article 4. The payment at the Closing shall be allocated to the
Local Purchase Prices as may be agreed by Grace and Buyer not
less than two business days prior to the Closing Date, which
allocation shall give effect to Grace's and Buyer's good faith
estimates of the amounts of the post-Closing adjustments which
shall be payable pursuant to Article 4. All payments at the
Closing by the Buying Companies to the Selling Companies, except
payments with respect to the Japanese Subject Assets, shall be
made by means of a single payment by Buyer, for itself and as
agent for the other Buying Companies, to Grace, for itself and as
agent for the other Selling Companies, by means of a wire
transfer to Grace's account #016-001257 at The Chase Manhattan
Bank, ABA #▇▇▇-▇▇▇-▇▇▇.
3.08 Other Documents to be Executed and Delivered. (a)
At the Closing, (i) Grace shall deliver to Buyer an opinion of
its General Counsel limited to the due authorization, execution
and delivery of this Agreement and the Transaction Documents by
Grace and Seller-U.S. and (ii) Buyer shall deliver to Grace an
opinion of its General Counsel limited to the due authorization,
execution and delivery of this Agreement and the Transaction
Documents by Buyer.
(b) At the Closing, the parties shall execute and deliver
such other documents required under the laws of foreign
jurisdictions to consummate the transfer of the Total Subject
Assets and the Amicon Securities from the Selling Companies to
the Buying Companies. None of such documents or any of the
documents to be executed and delivered pursuant to Sections 3.03
or 3.04 shall contain provisions that exceed the minimum
requirement for such documents in such jurisdictions, shall
amend, modify, supersede or expand any of the rights and
liabilities or obligations of the parties hereunder, and, except
as required by law, this Agreement shall be controlling in the
event of any conflict or inconsistency between the provisions
hereof and the provisions of any such local documents.
3.09 Further Assurances of Sellers. At any time and
from time to time after the Closing, at the request and expense
of the Buyer or any of the other Buying Companies, the Selling
Companies shall, and shall cause the other members of the Grace
Group to execute and deliver, or cause to be executed and
delivered, all such deeds, assignments, consents and other
documents or instruments of conveyance, and take or cause to be
taken all such other actions, as Buyer or any of the other Buying
Companies reasonably deem necessary or desirable in order to put
the Buying Companies in actual possession or operating control of
the Total Subject Assets and the Amicon Securities (including
reasonably assisting Buyer to obtain necessary permits and
consents in connection with the operation of the Subject
Business), or to more fully and effectively vest in the Buying
Companies, or to confirm their title to and possession of, the
Total Subject Assets and the Amicon Securities.
3.10 Further Assurances of Buyers. At any time and
from time to time after the Closing, at the request and expense
of Grace or any of the other Selling Companies, the Buying
Companies shall, and shall cause the other members of the Buyer
Group to, execute and deliver, or cause to be executed and
delivered, all such documents, and take or cause to be taken all
such other actions, as Grace or any of the other Selling
Companies reasonably deems necessary or desirable in order to
more fully and effectively divest Grace or any of the other
Selling Companies of responsibility for the Total Subject
Liabilities and incidents of ownership of the Total Subject
Assets and the Amicon Securities.
Article 4
Purchase Prices, Post-Closing Adjustments
4.01 Closing of Books. 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 a going concern
basis, and take a physical count of Subject Business inventories
of each such company (or those companies otherwise agreed to by
the parties) at or within two weeks prior to such time. Such
inventory count shall be taken in accordance with the inventory-
taking practices and procedures as incorporated in the Amicon
Business Work Papers of Price Waterhouse LLP ("Price Waterhouse")
related to the PW Statements (to which such work papers Buyer has
previously been given access) or, with respect to inventories of
the Selling Companies or Amicon Companies not observed by Price
Waterhouse, as used by such Selling Companies or Amicon Companies
in their most recent physical inventory count for the Subject
Business.
4.02 Definitions.
(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, computed in accordance
with Section 4.03.
(b) "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,
computed in accordance with Section 4.03.
(c) "Closing Working Capital Amount" means the amount
of the Closing Current Assets less the amount of the Closing
Current Liabilities.
4.03 Computations. The Closing Working Capital Amount
shall be determined in U.S. dollars on a going concern basis, in
accordance with U.S. generally accepted accounting principles
applied on a consistent basis with those used in the
determination of the Base Working Capital Amount, except as
otherwise specified in the schedule to this Section. All amounts
originally stated in foreign currency shall be translated into
U.S. dollars at the exchange rate for the date preceding the
Closing Date as reported in the Wall Street Journal. In
addition, the Closing Working Capital Amount shall be determined
using the same account classifications, closing procedures and
levels of materiality as those used in the preparation of the PW
Statements.
4.04 Closing Statement. As soon as practicable after
the Closing, Grace shall deliver to Buyer a statement (the
"Closing Statement") setting forth Grace's determination of the
Closing Working Capital Amount, together with a report of Price
Waterhouse stating whether or not the Closing Working Capital
Amount shown on the Closing Statement has been determined in
accordance with the terms of this Agreement. Upon and after
delivery to Buyer of the Closing Statement, Buyer's independent
accountants shall, upon request, be given access to Price
Waterhouse's working papers to facilitate Buyer's review of the
Closing Statement.
4.05 Acceptance. If the Buyer does not object to the
Closing Working Capital Amount shown on the Closing Statement
delivered by Grace, by written notice of objection delivered to
Grace within 45 calendar days after Buyer's receipt of such
statement, describing in reasonable detail each of its proposed
adjustments to Grace's determination thereof, then the Closing
Working Capital Amount shown on the Closing Statement shall be
final and binding on all parties to this Agreement.
4.06 Non-Acceptance, Resolution of Disputes.
(a) If Buyer does object to the Closing Working
Capital Amount shown on the Closing Statement, then Buyer and
Grace shall promptly endeavor to agree upon the proper amount of
the items in dispute. If a written agreement determining any
disputed item has not been reached within 45 calendar days after
the date of receipt by Grace from Buyer of Buyer's notice of
objection thereto, then either Grace or Buyer may, by notice to
the other, submit for determination by arbitration in accordance
with this Section the question of what adjustments, if any, must
be made to Grace's determination of the Closing Working Capital
Amount in order for it to be determined in accordance with the
provisions of this Agreement.
(b) Any such determination by arbitration shall be
made by Deloitte & Touche, L.L.P. (the "Arbitrator") and shall be
final and binding on all parties to this Agreement.
(c) The fees and expenses of the Arbitrator for any
determination under this Article shall be shared as follows:
Grace shall bear that portion thereof equal to the total amount
of such fees and expenses multiplied by a fraction, the numerator
of which shall be the difference between the Closing Working
Capital Amount as determined by the Arbitrator and the Closing
Working Capital Amount as finally proposed by Grace, and the
denominator of which shall be the difference between the Closing
Working Capital Amount as finally proposed by Buyer and the
Closing Working Capital Amount as finally proposed by Grace.
Buyer shall bear the remainder of such fees and expenses.
(d) Nothing herein shall be construed to authorize or
permit the Arbitrator to (i) determine any question or matter
whatever under or in connection with this Agreement or any
Transaction Document except the determination of what
adjustments, if any, must be made to one or more of the items
reflected in the Closing Working Capital Amount as shown on the
Closing Statement delivered by Grace in order for the Closing
Working Capital Amount to be determined in accordance with the
provisions of this Agreement, and (ii) determine a Closing
Working Capital Amount that is outside of the range defined by
the Closing Working Capital Amounts as finally proposed by Grace
and Buyer, respectively and (iii) revise the Base Working Capital
Amount.
4.07 Payment of Adjustments. Promptly after the
Closing Working Capital Amount has been finally determined, Grace
shall deliver to Buyer a statement of the Total Purchase Price
and of the Local Purchase Prices (the aggregate of which shall
equal the Total Purchase Price) determined using the final
Closing Working Capital Amount and in conformity with the terms
of this Agreement. All local price adjustments shall be settled
simultaneously based on such statement not later than 15 calendar
days after delivery thereof. If any Local Purchase Price exceeds
the amount paid at the Closing with respect thereto, then the
appropriate Buying Company shall pay, or shall cause Buyer to pay
as its agent, the amount of the excess to the appropriate Selling
Company or to Grace as its agent; if any Local Purchase Price is
less than the amount paid at the Closing with respect thereto,
then the appropriate Selling Company shall, or shall cause Grace
as its agent to, refund the amount of the overpayment to the
appropriate Buying Company or to Buyer as its agent. To the
extent practicable, any amounts due from the Grace Group shall be
set off against any amounts due from the Buyer Group. If the net
amount of the adjusting payment or payments exceeds $100,000,
interest shall be paid on the entire amount of the net adjusting
payment or payments, from the Closing Date to the date of
payment, at the "prime rate" as in effect on the Closing Date as
reported by The Chase Manhattan Bank.
Article 5
Sellers' Representations
Grace represents and warrants to Buyer and the other Buying
Companies as follows:
5.01 Selling Companies' Corporate Status and
Authority.
Each of Grace and the other Selling Companies is a corporation
duly organized and validly existing under the laws of its
jurisdiction of organization. Each Selling Company (other than
Grace) is a direct or indirect wholly owned subsidiary of Grace
(except for directors qualifying shares). Grace has full
corporate power to enter into this Agreement and the Transaction
Documents to which it will be a party, to perform its obligations
hereunder and thereunder, and to own its properties and carry on
the Subject Business as currently conducted. WRG has full
corporate power to enter into the Ancillary Agreements to which
it will be a party and perform its obligations thereunder. Each
Selling Company (other than Grace) has full corporate power to
enter into the Transaction Documents to which it will be a party,
to own its properties and carry on the Subject Business as
currently conducted and will, prior to the Closing, have full
corporate power to perform its obligations under each Transaction
Document to which it will be a party.
The execution and delivery by Grace of this Agreement and
the Transaction Documents to which it will be a party, and its
performance of its obligations hereunder and thereunder, have
been duly authorized by all required corporate action. The
execution and delivery by WRG of the Transaction Documents to
which it will be a party, and its performance of its obligations
thereunder, have been duly authorized by all required corporate
action. The execution and delivery by each Selling Company
(other than Grace) of the Transaction Documents to which it will
be a party, and its performance of its obligations thereunder,
will, as of the Closing, have been duly authorized by all
required corporate action. Grace, each other Selling Company and
WRG has (or in the case of Transaction Documents to be executed
at the Closing, will have) duly and validly executed and
delivered, as the case may be, this Agreement and/or the
Transaction Documents to which it will be a party; and this
Agreement is and such Transaction Documents will be legally
binding on Grace, each other Selling Company and WRG, as the case
may be, enforceable against them in accordance with their terms,
except as may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally, by
general principles of equity (regardless of whether considered in
a proceeding in equity or one at law), and by public policy.
5.02 Amicon Companies Corporate Status. Each of the
Amicon Companies is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation and
has all necessary corporate power and authority to own its
properties and carry on its business as currently conducted.
Grace has previously delivered or made available to Buyer a
complete copy of the charter documents and by-laws (or their
equivalent), as currently in effect, of each Amicon Company.
5.03 Amicon Companies Capitalization. (a) The schedule
to this Section sets forth a true and complete listing of the
Amicon Securities and the ownership thereof. Grace, Grace
Holdings and Grace France have full right and power and and will,
prior to the Closing, have full authority to transfer their
respective ownership interests in the Amicon Securities free and
clear of all Security Interests, other than, in the case of
shares held by another member of the Grace Group or an employee
of the Grace Group, any repurchase rights of an Amicon Company or
other members of the Grace Group. There are no outstanding
subscriptions, options, warrants or conversion or other rights,
agreements or commitments of any kind (except the repurchase
rights described in the preceding sentence) to purchase or
otherwise acquire any of the Amicon Securities and no
authorization therefor has been given. The Amicon Securities are
validly issued, fully-paid and non-assessable. Except as set
forth in the schedule to this Section, no Amicon Company owns or
controls, directly or indirectly, any capital stock, or other
securities of, or has any ownership interest in, any corporation,
partnership or other entity.
(b) The schedule to this Section sets forth a true and
complete list of all dividends declared or paid by the Amicon
Companies since the close of business on December 29, 1995.
5.04 No Conflict. Except as set forth in the
schedule to this Section, the execution and delivery by WRG,
Grace and each other Selling Company of this Agreement and/or the
Transaction Documents to which it will be a party, and the
performance by WRG, Grace and each other Selling Company of its
obligations hereunder and/or thereunder, do not and will not as
of the Closing (a) conflict with its charter documents or by-
laws, (b) result in any breach of any of the provisions of, or
constitute a default under, any judgment, order, decree, or
agreement to which it is a party or by which it is bound, which
breach or default would materially adversely affect the ability
of such entity to execute and deliver this Agreement and/or any
Transaction Document to which it will be a party or perform its
obligations hereunder or thereunder, or (c) result in the
creation of any Security Interest in any of the assets or
properties used in the Subject Business (including but not
limited to the Amicon Securities).
5.05 Total Subject Assets and Amicon Companies Assets;
Title Claims. (a) The Total Subject Assets, the Amicon Companies
Assets and the Intellectual Property include all of the assets
(whether owned or leased or otherwise made available to the
Subject Business by agreement) used to conduct the manufacturing
operations of the Subject Business as conducted on the date
hereof, other than services provided by the Grace Group of an
administrative, support, oversight, or professional nature.
(b) The schedule to this Section sets forth (i) a true and
complete list of all real property owned by the Selling Companies
and used primarily in the Subject Business and all real property
owned by the Amicon Companies, and (ii) a true and complete list
of all real property leased by the Selling Companies and used
primarily in the Subject Business and all real property leased by
the Amicon Companies. Insofar as the Grace Executives have
Knowledge, after consulting with the Subject Business Executives,
no Amicon Company or Selling Company is in material default under
any such lease for real property and all rental amounts due and
payable thereunder have been paid.
(c) Except as set forth in the schedule to this Section,
(i) the Total Subject Assets and the Amicon Companies Assets are
not subject to any lien for borrowed money, and (ii) there are no
other defects in any Selling Company's title to any of the Total
Subject Assets or the Amicon Companies' title to the Amicon
Companies Assets (except with respect to real property, for which
the Buying Companies are relying exclusively on title insurance
or public records) that would materially interfere with the
continued use or operation thereof in the manner heretofore used
or operated by the Grace Group in its conduct of the Subject
Business.
5.06 Financial Statements. (a) Grace has heretofore
delivered to Buyer a complete copy of the PW Statements which
have been audited and reported upon by Price Waterhouse. The PW
Statements present fairly, in all material respects, the combined
and consolidated working capital and earnings before interest,
taxes and amortization of the Subject Business as of December 29,
1995 and for the accounting year then ended on the basis set
forth therein and in note 1 thereto in conformity with generally
accepted accounting principles.
(b) The net sales amount set forth in the earnings
before interest, taxes and amortization statement contained in
the PW Statements do not reflect sales of any products or
services (other than in immaterial amounts) that Buyer would be
prohibited or restricted from selling after the Closing pursuant
to any covenant or provision of this Agreement or any Transaction
Document and represents only sales made to entities that are not
members of or affiliated with the Grace Group and only sales of
products and services of the Subject Business in the ordinary
course of business.
(c) The aggregate expenses incurred by the Subject
Business to replace products or provide for warranty provisions
in connection with the sale of products for the nine months ended
September 30, 1996 did not exceed $300,000.
5.07 Litigation. (a) Except as set forth in the
schedule to this Section, (i) there are no actions, suits,
arbitrations or other proceedings pending against any Selling
Company, any Amicon Company or the Subject Business that would
reasonably be expected to result in losses or damages not covered
by Grace's or the Amicon Companies' insurance programs (with
deductibles not deemed as losses or damages for such purpose) of
more than $50,000 or have a material adverse effect upon the
business, financial condition or results of operation of the
Subject Business taken as a whole, and (ii) insofar as the Grace
Executives have Knowledge, after consulting with the Subject
Business Executives, no such actions, suits, arbitrations or
other proceedings are threatened.
(b) Except as set forth in the schedule to this
Section, insofar as the Grace Executives have Knowledge, after
consulting with the Subject Business Executives, there are no
pending or threatened governmental investigations of the Subject
Business or any of the Total Subject Assets or the Amicon
Companies Assets, including but not limited to investigations
relating to compliance with Environmental Law.
5.08 Asset Disposition or Loss. Except as set forth
in the schedule to this Section, since December 29, 1995, the
Subject Business has not disposed of (other than in the ordinary
course of business), or suffered an uninsured casualty loss with
respect to, any of its assets whose book value at the time of
such disposition or loss was greater than $100,000 or disposed of
any patent, patent application or other intellectual property
rights.
5.09 Insurance. The schedule to this Section sets forth
insurance coverage for the Subject Business, with applicable
deductibles and limits therefor, maintained by Grace and the
Amicon Companies for (a) property damage and loss of income by
fire and other casualty, and (b) other liabilities, claims, and
risks, including products liability. Summaries of claims history
under such policies have been made available to Buyer for its
inspection. All such policies shall be maintained in full force
and effect until the Closing Date and thereafter as described in
the Insurance Procedures Agreement.
5.10 Contracts. The schedule to this Section lists
(a) each loan or credit agreement under which any Amicon Company
or Seller-U.S. is a borrower, excluding any agreement or
arrangement maintained by or in conjunction with other members of
the Grace Group or any customary credit terms with suppliers, and
(b) each written contract and agreement to which any Amicon
Company is a party, and each written contract and agreement
pertaining to the Subject Business to which any Selling Company
is a party (in each case other than distributorship and agency
agreements), that both (i) has an unexpired term of more than one
year and cannot be canceled by the Amicon Companies or such
Selling Company without penalty upon notice of one year or less,
and (ii) is a contract or agreement under which it is reasonably
expected that the Subject Business will make expenditures or
obtain receipts of more than $100,000 per year; (c) each written
noncompetition agreement to which any Amicon Company is a party,
and each written noncompetition agreement pertaining to the
Subject Business to which any Selling Company is a party; (d)
each written agreement entered into outside of the ordinary
course of business; (e) each written purchase order, sales
invoice, commitment for capital expenditure or other agreement
having an unexpired term of less than one year and involving
amounts in excess of $1,000,000; (f) each written partnership or
joint venture agreement to which any Amicon Company is a party or
to which any Selling Company is a party that pertains to the
Subject Business and (g) insofar as the Grace Executives have
Knowledge, after consulting with the Subject Business Executives,
any oral contract or agreement meeting any of the criteria set
forth in clauses (a) through (f) above. Insofar as the Grace
Executives have knowledge, after consulting with the Subject
Business Executives, no party is in material default under any
such contract, agreement, commitment or order. Grace has
heretofore delivered or made available to Buyer complete copies
of all such contracts and agreements as currently in effect.
5.11 Labor and Employment. The schedule to this
Section lists each collective bargaining or other similar
agreement with a labor union or similar organization which as of
the date hereof covers any employee of Seller-U.S. or an Amicon
Company. Grace has heretofore delivered or made available to
Buyer complete copies of all such agreements as currently in
effect. Insofar as the Grace Executives have Knowledge, after
consulting with the Subject Business Executives, there are no
pending or threatened strikes, slowdowns, walkouts or work
stoppages involving employees of Seller-U.S. or any Amicon
Company, and no union organizing activities are taking place with
respect to such employees.
5.12 Employee Benefit Plans. The schedule to this
Section lists each written employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act),
excluding governmental plans that as of the date hereof cover any
employee of Seller-U.S., and each written employee benefit plan
or contract currently maintained by each Amicon Company that
provides benefit coverages in addition to those required by
applicable law. Grace has heretofore delivered or made available
to Buyer complete copies of all such plans that are administered
by the Grace Group, and all such contracts to which each Amicon
Company is a party, as currently in effect.
5.13 Environmental Compliance; Remediation. (a)
Except as set forth in the schedule to this Section, insofar as
the Grace Executives have Knowledge, after consulting with the
Subject Business Executives, the Subject Business is in
substantial compliance with all Environmental Laws, except where
the failure so to comply would not reasonably be expected to have
a material adverse effect upon the business, financial condition
or results of operation of the Subject Business taken as a whole.
(b) Except as set forth in the schedule to this Section,
insofar as the Grace Executives have Knowledge, after consulting
with the Subject Business Executives, none of Grace, the Selling
Companies or the Amicon Companies is subject to remediation
obligations (including but not limited to response costs, cleanup
costs, investigative costs or natural resource damages) or for
personal injury or property damage of third parties, resulting
from the release, discharge, placement, disposal or migration of
Hazardous Substances into the environment from the operations of
the Subject Business.
5.14 Intellectual Property.
(a) The schedule to this Section sets forth a list of
all patents, patent applications, trademark registrations,
trademark registration applications, and proprietary computer
software owned by each Amicon Company, or owned by the Selling
Companies and used in the Subject Business, which are part of the
Intellectual Property.
(b) Except as set forth in the schedule to this
Section, (i) none of such assets or, insofar as the Grace
Executives have Knowledge, after consulting with the Subject
Business Executives, any other intellectual property of the
Subject Business, is the subject of any pending action, suit or
proceeding that would reasonably be expected to have a material
adverse effect upon the business, financial condition or results
of operation of the Subject Business taken as a whole, (ii)
insofar as the Grace Executives have Knowledge, after consulting
with the Subject Business Executives, no such action, suit or
proceeding is threatened and no person, firm or corporation is
engaging or has engaged in any activity which constitutes an
infringement of any such assets, and (iii) insofar as the Grace
Executives have knowledge after consulting with the Subject
Business Executives, the operations of the Subject Business do
not infringe upon any intellectual property rights of any third
party.
(c) Except as set forth in the schedule to this
Section, neither any Selling Company nor Amicon Company has
granted any third party or any member of the Grace Group (other
than a unit of the Subject Business) any license to use any of
such assets.
(d) The schedule to this Section lists any contracts
under which any Selling Company or Amicon Company has a license
from an unaffiliated person to use any patent or trademark that
is used in the Subject Business. Insofar as the Grace Executives
have knowledge, after consulting with the Subject Business
Executives, no party is in material default under any such
license. Grace has heretofore delivered or made available to
Buyer complete copies of such contracts as currently in effect.
5.15 Permits; Compliance with Laws. (a) Except as set
forth in the schedule to this Section, insofar as the Grace
Executives have Knowledge, after consulting with the Subject
Business Executives, the Selling Companies and the Amicon
Companies have obtained all material permits, licenses or other
governmental authorizations (collectively, "Permits") required in
connection with the operation of the Subject Business. Except as
set forth in the schedule to this Section, since December 29,
1995, neither the Selling Companies nor the Amicon Companies have
received any written warning notice, notice of violation or
probable violation, notice of revocation, or other written
communication from or on behalf of any Governmental Authority,
which violation has not been corrected or otherwise settled,
alleging (i) any violation of any such Permit, (ii) that any of
the Selling Companies or Amicon Companies require any license or
permit required for the Subject Business not currently held by
them, or (iii) any current violation of any material federal,
state, county, local or foreign laws, ordinances, regulations or
orders.
(b) Except as set forth in the schedule to this Section,
insofar as the Grace Executives have Knowledge, after consulting
with the Subject Business Executives, the Selling Companies and
the Amicon Companies are in compliance with all federal, state,
county, local or foreign laws, ordinances, regulations or orders
(including but not limited to laws relating to worker health and
safety and laws administered by the U.S. Food and Drug
Administration), except where the failure so to comply would not
reasonably be expected to have a material adverse effect upon the
business, financial condition or results of operation of the
Subject Business taken as a whole.
(c) The Subject Business has complied with and is in
compliance with the Foreign Corrupt Practices Act and any
equivalent non-U.S. regulation or laws.
5.16 Taxes. (a) As used in this Section (i) "Tax, or
"Taxes, refers to any United States or foreign income tax
(including any alternative or add-on minimum tax) or franchise
tax based on net income, any payroll or other similar employment
tax, any sales, use, excise, gross receipts or value added tax,
or any tax on real or personal property; and (ii) "Taxing
Authority, means any Governmental Authority responsible for the
imposition of Taxes.
(b) Insofar as the Grace Executives have knowledge,
after consulting with the Subject Business Executives:
(i) Each Amicon Company has filed all Tax reports and
returns that it was required to file with any Taxing
Authority and has paid all Taxes shown to be due on such
returns or in any assessment notices sent to such Amicon
Company by any Taxing Authority;
(ii) Each Amicon Company has withheld and paid all
Taxes required to have been withheld and paid by it in
connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party;
(iii) Grace has delivered or will make available to
Buyer prior to the Closing complete copies of all Tax
returns for each of the Amicon Companies for all open Tax
years (except for returns not yet prepared and filed) and
Grace has used its best efforts to provide Buyer, to the
extent requested by Buyer in writing, all available
assessment reports, examination reports and statements of
deficiencies assessed against or agreed to by any of the
Amicon Companies for such period; and
(iv) None of the Amicon Companies currently is the
beneficiary of any extension of time within which to file
any Tax report or return and none of the Amicon Companies
has waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax
assessment or deficiency.
5.17. Absence of Certain Changes. Except to the extent set
forth in the schedule to this Section, since December 29, 1995:
(a) Neither any Selling Company nor any Amicon Company
has materially changed its cash management practices, including
with respect to the collection of accounts receivable, payment of
accounts payable, or maintenance of inventory controls;
(b) Except as set forth in the schedule to this
Section, and except as in the ordinary course of business and in
accordance with past practices, neither any Selling Company nor
any Amicon Company has with respect to any employee of the
Subject Business granted any increase in compensation, including
any increase pursuant to any bonus, commission, pension, profit
sharing or other plan or commitment;
(c) Neither any Selling Company nor any Amicon Company
has made any material change in any internal method of accounting
or accounting practice with respect to the Subject Business;
(d) Neither Grace nor any Selling Company nor any
Amicon Company has suffered any damage, destruction or loss in
excess of $50,000 (whether or not covered by insurance) to any of
the tangible properties or business or operations of the Subject
Business;
(e) (i) The Subject Business has not suffered a
material erosion of its customer base; (ii) consolidated 1996
sales through October 31, 1996 exceed consolidated 1995 sales for
the 10 month comparable period, and (iii) all such 1996 sales are
in respect of bonafide ▇▇▇▇▇▇▇▇ for products shipped or the
recordation of projects accounted for under the percentage of
completion method of accounting consistent with the procedures
applied in the preparation of the PW Statements;
(f) Neither any Selling Company nor any Amicon Company
in the conduct of the Subject Business has made any loans or
advances to any employee, officer or director, except for loans
or advances in the ordinary course of business and consistent
with past practices; and
(g) Neither any Selling Company nor any Amicon Company
has made any material change in its maintenance policies or
practices with respect to any property, plant or equipment of the
Subject Business.
5.18 Employees. The schedule to this Section contains
an accurate and complete list of all employees employed in the
Subject Business whose base salary is in excess of $50,000 per
year.
Article 6
Buyers' Representations
Buyer represents and warrants to Seller-U.S., Grace and the
other Selling Companies as follows:
6.01 Buying Companies' Corporate Status and Authority.
Each of Buyer and the other Buying Companies is a corporation
duly organized and validly existing under the laws of its
jurisdiction of organization. Each Buying Company (other than
Buyer) is a direct or indirect subsidiary of Buyer. Buyer has
full corporate power to enter into this Agreement and the
Transaction Documents to which it will be a party and to perform
its obligations hereunder and thereunder. Each Buying Company
(other than Buyer) has full corporate power to enter into the
Transaction Documents to which it will be a party and will, prior
to the Closing, have full corporate power to perform its
obligations under each Transaction Document to which it will be a
party.
The execution and delivery by Buyer of this Agreement and
the Transaction Documents to which it will be a party, and its
performance of its obligations hereunder and thereunder, have
been duly authorized by all required corporate action. The
execution and delivery by each Buying Company (other than Buyer)
of the Transaction Documents to which it will be a party, and its
performance of its obligations thereunder, will, as of the
Closing, have been duly authorized by all required corporate
action. Buyer and each other Buying Company has (or in the case
of Transaction Documents to be executed at the Closing, will
have) duly and validly executed and delivered, as the case may
be, this Agreement and/or the Transaction Documents to which it
will be a party; and this Agreement is and such Transaction
Documents will be legally binding on Buyer and each other Buying
Company, as the case may be, enforceable against them in
accordance with their terms, except as may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally, by general principles of equity
(regardless of whether considered in a proceeding in equity or
one at law), and by public policy.
6.02 No Conflict. The execution and delivery by
Buyer and each other Buying Company of this Agreement and the
Transaction Documents to which it is or will be a party, and the
performance by Buyer and each other Buying Company of its
obligations hereunder and/or thereunder, do not and will not as
of the Closing Date (a) conflict with its charter documents or by-
laws, or (b) result in any breach of any of the provisions of, or
constitute a default under, any judgment, order, decree, or
agreement to which it is a party or by which it is bound, which
breach or default would materially adversely affect the ability
of such entity to execute and deliver this Agreement and/or any
Transaction Document to which it will be a party or perform its
obligations hereunder or thereunder.
6.03 Sufficient Funds. Buyer and the Buying Companies
have, and on the Scheduled Closing Date will have, sufficient
funds to consummate the transactions contemplated by this
Agreement.
Article 7
Buyers' Investigation
The Buying Companies hereby acknowledge the following:
7.01 Financial Information. As part of their
investigation, the Buying Companies have been given certain
financial statements and projections prepared by the Grace Group
with respect to the Subject Business. The Buying Companies
acknowledge that there are uncertainties inherent in attempting
to make projections and forecasts and formulate opinions, and the
Buying Companies are familiar with such uncertainties. Neither
Seller-U.S., Grace nor any other member of the Grace Group shall
have any liability of any kind to Buyer, the other Buying
Companies, or any other member of the Buyer Group, with respect
to any such financial information, opinion or forecast except to
the extent that they may be part of specific representations and
warranties in Article 5.
7.02 No Additional Representations. The Buying
Companies are not relying on the Selling Companies (or any other
members of the Grace Group) with respect to any matter in
connection with the Buying Companies' investigation or evaluation
of the Subject Business, the Amicon Companies, the Total Subject
Assets, the Total Subject Liabilities, the Amicon Companies
Assets or the Amicon Companies Liabilities, except for the
specific representations and warranties in Article 5. None of
the Selling Companies (nor any other member of the Grace Group)
is making any representation or warranty, express or implied, of
any nature whatsoever with respect to the Subject Business, the
Amicon Companies, the Total Subject Assets, the Total Subject
Liabilities, the Amicon Companies Assets or the Amicon Companies
Liabilities except for the specific representations and
warranties in Article 5.
7.03 Effect of Transfer. The Buying Companies have
taken responsibility for evaluating the effect on the Total
Subject Assets and the Amicon Companies Assets of the transfer of
ownership of the Total Subject Assets and the Amicon Securities
to the Buying Companies including, without limitation, the effect
of the failure to obtain any third party or governmental consents
or approvals.
Article 8
Covenants
8.01 Access and Inquiry. Between the date of this
Agreement and the Closing, the Buying Companies shall have
reasonable access to the facilities of the Subject Business and
will, upon request, be permitted to contact and make reasonable
inquiry of employees, customers, suppliers, vendors and other
contractors of the Selling Companies and the Amicon Companies
regarding the Subject Business, the Total Subject Assets, the
Total Subject Liabilities, the Amicon Companies Assets and the
Amicon Companies Liabilities. The Selling Companies shall, and
shall cause the Amicon Companies to, make available to the Buying
Companies all books, records, and other financial data and files
of the Selling Companies and the Amicon Companies relating
directly to the Subject Business, the Total Subject Assets, the
Total Subject Liabilities, the Amicon Companies Assets and the
Amicon Companies Liabilities, to the extent reasonably requested
by any Buying Company. The Buying Companies acknowledge that the
terms of Buyer's letter agreement on confidentiality with respect
to the Subject Business executed in favor or Grace shall apply to
information gained by any Buying Company pursuant to the
foregoing.
8.02 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. As promptly as
practicable after the date of this Agreement, Grace and Buyer
shall file or cause to be filed appropriate Notification and
Report Forms under the HSR Act. Grace and Buyer shall cooperate
to coordinate such filings, and to make reasonable efforts to
respond to any governmental request or inquiry with respect
thereto.
8.03 Licenses and Permits. As soon as practicable
after the date hereof, the Buying Companies shall prepare and
file or cause to be prepared and filed with the appropriate
licensing and permitting authorities applications for the
issuance to the Buyer Group of all governmental licenses and
permits that Buyer determines are necessary for the Buyer Group
to operate the Subject Business after the Closing. The Buying
Companies shall use all reasonable efforts to secure such
licenses and permits. The Selling Companies shall, and shall
cause the Amicon Companies to, use reasonable efforts to assist
the Buyer Group in the preparation of such applications and the
securing of such licenses and permits.
8.04 Notices to Third Parties. The Buying Companies
and the Selling Companies shall cooperate to give notice to all
third parties and to make all other filings that may reasonably
be required to consummate the transactions contemplated by this
Agreement including but not limited to filings with the Treasury
Department of the Ministry of Economy and Finance of France.
8.05 Reasonable Efforts. In making reasonable efforts
under Sections 8.02, 8.03 and 8.04, no member of the Grace Group
or the Buyer Group shall be required to make any payment (other
than statutorily required payments and reasonable legal fees)
that it is not presently contractually required to make, divest
any assets (including but not limited to assets of the Subject
Business), make any change in the conduct of its business or that
of the Subject Business, accept any limitation on the future
conduct of its business or that of the Subject Business, enter
into any other agreement or arrangement with any person that it
is not presently contractually required to enter into, accept any
significant modification in any existing agreement or
arrangement, or agree to any of the foregoing.
8.06 Authorization of Selling and Buying Companies. Grace
and Buyer shall cause each of the other Selling Companies and
Buying Companies, respectively, to take all required corporate
action to approve the transactions contemplated by this Agreement
and the Transaction Documents prior to the Closing, and shall
cause such Selling Companies and Buying Companies to execute and
deliver the Transaction Documents to which they will be parties
and all other agreements, instruments and other documents
necessary or appropriate to consummate such transactions.
8.07 Exclusivity. So long as this Agreement is in effect,
neither Grace nor any of the Selling Companies or Amicon
Companies or any of their respective directors, officers,
employees or other representatives or agents shall, directly or
indirectly, initiate, encourage or solicit any offers or
proposals for, participate in any discussions or negotiations
regarding, or provide information to any corporation,
partnership, person, or other entity or group in connection with,
an acquisition of all or any portion of the Subject Business, the
Amicon Securities, the Amicon Companies Assets or the Total
Subject Assets or any merger, reorganization, recapitalization or
similar transaction.
Article 9
Conduct of Business Prior to the Closing
Except as otherwise consented to by Buyer, from the date of
this Agreement until the Closing:
9.01 Operation in Ordinary Course. The Selling
Companies shall, and shall cause the Amicon Companies to, conduct
the Subject Business only in the ordinary course of business and
consistent with prior practice.
(a) Without limiting the generality of the foregoing, the
Selling Companies shall not and shall cause the Amicon Companies
not to, without the written approval of Buyer:
(i) amend the certificate of incorporation or by-laws
of any Amicon Company;
(ii) declare, set aside, or pay any dividend or make
any other distribution on or in respect of the Amicon
Securities;
(iii) enter into or assume any contract that would be
required to be disclosed in any schedule to Article 5 or
materially amend or modify any contract listed in any such
schedule;
(iv) merge or consolidate with any other entity;
acquire all or substantially all of the business or assets
of any other entity; acquire (directly or indirectly) any
capital stock, bonds, or other securities of, or any
proprietary interest in, any other entity, or acquire
(directly or indirectly) control of the management or
policies of any other entity;
(v) enter into or assume any obligation for borrowed
money, other than any agreement or arrangement maintained by
or in conjunction with other members of the Grace Group or
customary credit terms with suppliers;
(vi) create or assume any Security Interest upon any
asset or acquire any asset subject to a Security Interest;
(vii) sell, lease (as lessor), transfer, license (as
Licensor), or otherwise dispose of, any asset of the Subject
Business with a book value of $100,000 or more (other than
any of the Total Excluded Assets);
(viii) make any capital expenditure or commitment for
additions to property, plant or equipment in respect of the
Subject Business, except for expenditures in the ordinary
course of business no one of which exceeds $25,000; or
(ix) make any loan or advance to any other person or
entity (other than routine travel advances to employees).
(b) Also without limiting the generality of the foregoing, the
Selling Companies shall and shall cause the Amicon Companies to:
(i) continue to conduct the Subject Business (including
with respect to its cash management practices, the
collection of receivables, inventory control and payment of
payables) in substantially the same manner as heretofore
conducted and exercise reasonable business efforts to
preserve intact its present business organization, to keep
available the services of the present employees of the
Subject Business, and to preserve the good will and
relationships of the Selling Companies and the Amicon
Companies with employees, customers and suppliers of the
Subject Business;
(ii) maintain the material structures, equipment and
other tangible real and personal property of the Subject
Business (including the Total Subject Assets and the Amicon
Companies Assets) in a manner consistent with prior
practices;
(iii) maintain books of account and records of the
Subject Business consistent with prior practices; and
(iv) maintain in full force and effect the existence of
the Intellectual Property set forth on Schedule 5.14(a).
Article 10
Conditions Precedent to the Obligations of Buyers
All obligations of the Buying Companies under this Agreement
are subject, at Buyer's option, to the fulfillment prior to or at
the Closing, of each of the following conditions:
10.01 Accuracy of Representations and Warranties.Each
and every representation and warranty of Grace under this
Agreement that is qualified by materiality shall be true and
accurate and each of the representations and warranties of Grace
under this Agreement that is not so qualified shall be true and
accurate in all material respects as of the Closing, except as
may be affected by changes in the ordinary course of business
that occur between the date of this Agreement and the Closing,
which changes would not reasonably be expected to have, alone or
in the aggregate, a material adverse effect on the business,
financial condition or results of operation of the Subject
Business taken as a whole.
10.02 Performance of Covenants and Agreements. Seller-
U.S., Grace and the other Selling Companies shall have performed
in all material respects all of the covenants and agreements
required to be performed by them at or prior to the Closing
pursuant to this Agreement.
10.03 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and Other Governmental Approvals.
All waiting periods under the HSR Act applicable to the
transactions contemplated by this Agreement shall have expired,
by passage of time or by valid early termination by the FTC or
the DOJ; no representative of either the FTC or the DOJ shall be
taking the position that any of such waiting periods has not
commenced to run or has not expired for any reason; and no
representative of either the FTC or the DOJ shall have requested
a delay of the Closing for a period which has not expired, which
request has not been withdrawn.
10.04 Permits and Consents. There shall be no material
permit, consent, approval or authorization of, or declaration to
or filing with, any Governmental Authority required in connection
with the transactions contemplated by this Agreement that has not
been accomplished or obtained and that may not be accomplished or
obtained after the Closing without material penalty or other
material adverse consequences to the Buyer Group.
10.05 Litigation. No action, suit, proceeding,
investigation, or inquiry by any third party (including but not
limited to any Governmental Authority) shall have been instituted
or threatened (and remain pending or threatened on the date of
the Closing) against any member of the Grace Group or the Buyer
Group that questions, or reasonably could be expected to lead to
subsequent questioning of, the validity or legality of this
Agreement, the Ancillary Agreements or the transactions
contemplated by this Agreement that, if successful, would
materially adversely affect the right of the Buying Companies to
consummate the transactions contemplated by this Agreement or to
continue the Subject Business substantially as currently
operated.
10.06 Certificate of Grace. Grace shall have
delivered to Buyer a certificate of Grace, dated the date of the
Closing, signed by any Vice President or more senior officer of
Grace certifying that: (a) each and every representation and
warranty of Grace under this Agreement that is qualified by
materiality shall be true and accurate and each of the
representations and warranties of Grace under this Agreement that
is not so qualified shall be true and accurate in all material
respects as of the Closing, and (b) Grace and the other Selling
Companies have performed in all material respects at or prior to
the Closing all of the covenants and agreements required to be
performed by them at or prior to the Closing pursuant to this
Agreement.
If such certificate lists any exceptions to either of the
statements set forth in clauses (a) or (b) above, and the Buying
Companies accept such certificate and proceed with the Closing,
the Buyer Group shall not be deemed to have waived any rights
against the Grace Group with respect to such exceptions.
10.07 Opinion of Counsel. Grace shall have delivered to
Buyer an opinion of the General Counsel of Grace, dated the
Closing Date, with respect to the authorization, execution and
delivery of this Agreement and the Transaction Documents by Grace
and Seller-U.S.
Article 11
Conditions Precedent to the Obligations of Sellers
All obligations of the Selling Companies under this
Agreement are subject, at Grace's option, to the fulfillment
prior to or at the Closing, of each of the following conditions:
11.01 Accuracy of Representations and Warranties.
Each and every representation and warranty of Buyer under this
Agreement shall be true and accurate in all material respects as
of the Closing.
11.02 Performance of Covenants and Agreements. The
Buying Companies shall have performed in all material respects at
or prior to the Closing all of the covenants and agreements
required to be performed by them at or prior to the Closing
pursuant to this Agreement.
11.03 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and Other Governmental
Approvals. All waiting periods under the HSR Act applicable to
the transactions contemplated by this Agreement shall have
expired, by passage of time or by valid early termination by the
FTC or the DOJ; no representative of either the FTC or the DOJ
shall be taking the position that any of such waiting periods has
not commenced to run or has not expired for any reason; and no
representative of either the FTC or the DOJ shall have requested
a delay of the Closing for a period which has not expired, which
request has not been withdrawn.
11.04 Permits and Consents. There shall be no material
permit, consent, approval or authorization of, or declaration to
or filing with, any Governmental Authority required in connection
with the transactions contemplated by this Agreement that has not
been accomplished or obtained and that may not be accomplished or
obtained after the Closing without material penalty or other
material adverse consequences to the Grace Group.
(b) The Selling Companies shall have been released
from all guaranties issued to financial institutions with respect
to indebtedness for borrowed money owed by any Amicon Company.
11.05 Litigation. No action, suit, proceeding,
investigation or inquiry by any third party (including but not
limited to any Governmental Authority) shall have been instituted
or threatened (and remain pending or threatened on the date of
the Closing) against any member of the Grace Group or the Buyer
Group that questions, or reasonably could be expected to lead to
subsequent questioning of, the validity or legality of this
Agreement, the Ancillary Agreements or the transactions
contemplated by this Agreement.
11.06 Certificate of Buyer. Buyer shall have delivered
to Seller a certificate of Buyer, dated the date of the Closing,
signed by a Vice President or more senior officer of Buyer,
certifying that: (a) each and every representation and warranty
of Buyer under this Agreement that is qualified by materiality
shall be true and accurate and each of the representations and
warranties of Buyer under this Agreement that is not so qualified
shall be true and accurate in all material respects as of the
Closing, and (b) Buyer and the other Buying Companies have
performed in all material respects at or prior to the Closing all
of the covenants and agreements required to be performed by them
at or prior to the Closing pursuant to this Agreement.
11.07 Opinion of Counsel. Buyer shall have delivered to
Grace an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel to Buyer,
dated the Closing Date, with respect to the authorization,
execution and delivery of this Agreement and the Transaction
Documents by Buyer.
Article 12
Employee Matters
12.01 Employees of Amicon Companies. Buyer acknowledges
that the job position and terms and conditions of employment of
all active and inactive employees of the Amicon Companies shall
not be affected by the occurrence of the Closing, except as
provided by the Employee Benefits Agreement with respect to
employee benefit plans. This provision shall not constitute any
representation by Buyer or any Buying Company that such employees
will continue such employment with an Amicon Company for any
minimum period time after the Closing (except as required by
law).
12.02 Current and Continued Employees. (a) On the
Closing Date, the following individuals shall cease to be
employees of the Grace Group: (i) each employee of Seller-U.S.
and Amicon Ireland, (ii) each employee of the Grace Group (other
than Seller-U.S., Amicon Ireland and the Amicon Companies) who is
employed exclusively in the Subject Business, (iii) each employee
of the Grace Group (other than Seller-U.S., Amicon Ireland and
the Amicon Companies) who performs substantial services for the
Subject Business and is designated by Grace as an employee who is
to be transferred with the Subject Business, and (iv) each
employee who replaces any employee described in clauses (i), (ii)
or (iii). All employees described in clauses (ii) and (iii), as
of a recent date are listed on the schedule to this Section. All
employees described in clauses (i), (ii), (iii) and (iv) are
referred to as "Current Employees".
(b) Each Current Employee who accepts an offer of
employment made by a member of the Buyer Group in accordance with
Section 12.03 shall become an employee of such member of the
Buyer Group effective on the Closing Date; and all such Current
Employees shall be referred to as "Continued Employees".
12.03 No Obligation to Hire Current Employees. (a) The
Buying Companies shall have no obligation to offer any Current
Employee employment with a member of the Buyer Group. Prior to
the Closing Date, Buyer will be given the opportunity to
interview all Current Employees during working hours. Buyer will
use all reasonable efforts to give to Seller a list of those
Current Employees to whom an offer of employment will not be
made, at least 10 days prior to the Closing.
(b) Buyer acknowledges that its intent to consolidate the
facilities of the Buyer Group with the facilities of the Subject
Business after the Closing could affect the ability of Grace to
preserve the relationships between the Selling Companies and the
Amicon Companies and the employees of the Subject Business.
Grace believes that it has established incentives for the key
employees of the Subject Business to remain with the Subject
Business through the Closing Date. However, Grace makes no
representation regarding (i) whether a Subject Business employee
will be available for hire as of the Closing Date, (ii) which, if
any, Current Employees will accept an offer of employment with
the Buyer Group, or (iii) which, if any, employees of the Amicon
Companies will continue such employment after the Closing.
12.04 Terms of Employment. Subject to the Employee
Benefits Agreement, from and after the Closing, the Continued
Employees and employees of the Amicon Companies: (a) shall be
treated in a similar manner as the other employees of the Buyer
Group who are similarly situated, (b) shall be entitled to
participate on the same basis as such other employees in all job
training, career development and educational programs of the
Buyer Group, and (c) shall be entitled to fair and equitable
consideration together with such other employees in connection
with any management or executive job opportunities or any other
promotional opportunities with the Buyer Group.
12.05 Recognition of Seniority. The Buyer Group shall
recognize continuous service with the Grace Group (including
predecessor employers to the extent such service is recognized by
the Grace Group) for the purpose of determining seniority as this
may be used for the determination of service awards, severance
benefits, vacations, sick leave and other terms and conditions of
employment related to seniority, provided, however, that with
respect to Buyer Group's U.S. Participation Plan and Savings Plan
(a defined contribution plan) and U.S. Retirement Plan for
Employees of Millipore Corporation (a defined benefit plan),
continuous service with the Grace Group shall be recognized with
respect to eligibility and vesting in those plans only, but such
continuous services shall not be recognized for purposes of
determining the amount of retirement benefit, if any, under the
Retirement Plan for Employees of Millipore Corporation.
12.06 Employment Related Indemnities. The Buying
Companies shall, and shall cause the other members of the Buyer
Group to, indemnify the Selling Companies and the other members
of the Grace Group against liability, loss, damage, claim,
penalty, fine, cost or expense (including but not limited to
Litigation Expenses, as defined in Section 14.01) resulting from:
(a) the Buyer Group's hiring practices and decisions with respect
to the Current Employees and/or the Subject Business (including,
but not limited to, expenses and costs related to Grace's defense
of claims arising from the termination of employment of any
Current Employee who is not offered employment by any member of
the Buyer Group), (b) the employment, or termination of
employment, at or after the Closing, of any Continued Employee,
or any employee of an Amicon Company, (c) any claim on or after
the Closing Date that is made by any Current Employee or any
employee of an Amicon Company for any severance pay or
termination indemnity or other severance or termination benefit,
including but not limited, to any individual who under applicable
law or otherwise is entitled to severance upon dismissal by the
Selling Companies or upon refusing an offer to become an employee
of the Buyer Group (except as provided in the Employee Benefits
Agreement), (d) any claim made by any Continued Employee or any
employee of an Amicon Company that results from any reduction or
change to the employment-related benefits provided to such an
employee, which occurs on or after the Closing Date, (e) any
change in the collective organization or joint committees
applicable to any Continued Employee or any employee of an Amicon
Company that occurs on or after the Closing Date, and (f) any
claim under the U.S. federal Worker Adjustment and Retraining
Notification Act or any comparable U.S. state or non-U.S. law
arising out of any actions taken by the Buyer Group on or after
the Closing Date (including, but not limited to, the Buyer
Group's failure to hire any group of such employees, as of the
Closing Date) or as a result of the transactions contemplated by
this Agreement. If any claim is made against Grace which could
give rise to an obligation by Buyer to indemnify Grace under this
Section, such claim shall be treated as a Third Party Claim and
the provisions of Section 14.06 shall apply.
12.07 Employee Information Sharing. After the Closing,
the Buying Companies shall, and shall cause the Amicon Companies
to, provide to the Grace Group, and the Selling Companies shall,
and shall cause the other members of the Grace Group to, provide
to the Buyer Group, on a continuing basis at no cost to the
recipient, such information regarding employees of the Subject
Business under the Grace Group's ownership, as may be reasonably
requested. This Section shall not compel any person to maintain
records beyond the periods specified in Sections 15.02 and 15.03.
Article 13
Termination
13.01 Rights to Terminate
(a) This Agreement may be terminated at any time
prior to the Closing by written agreement of Grace and Buyer.
(b) If the conditions set forth in Section 10.03
and 11.03 have not all been fulfilled, or waived by the party
entitled to waive such conditions, on or before January 31, 1997,
then unless Grace and Buyer shall agree otherwise in an amendment
to this Agreement executed and delivered in accordance with
Section 19.06, either Grace or Buyer may terminate this Agreement
by giving notice to the other, in the manner provided in Section
18.01, at any time prior to the fulfillment or waiver of all such
conditions.
(c) If for any reason the Closing shall not have
taken place on or before January 31, 1997 (or any later date
agreed to as the Scheduled Closing Date in an amendment to this
Agreement executed in accordance with Section 19.06), then either
Grace or Buyer may terminate this Agreement at any time
thereafter by giving notice of such termination to the other in
the manner provided in Section 18.01.
13.02 Consequences of Termination
(a) The termination of this Agreement, whether in
accordance with any of the provisions of Section 13.01 or
otherwise, shall not affect the rights of any Buying Company or
Selling Company for any prior breach of any covenant or agreement
contained in this Agreement, except as provided in Section
14.04(c) and except that upon termination in accordance with any
of the provisions of Section 13.01, the parties (and all related
persons) shall be released from any and all liability for breach
of any of the representations and warranties contained in
Articles 5 and 6.
(b) The obligations of the parties under Sections
17.01 and 17.02 shall survive any termination of this Agreement.
Article 14
General Indemnification
14.01 Definitions. As used in this Article:
(a) "Damages" means any and all penalties, fines,
damages, liabilities, losses or costs (including reasonable
Litigation Expenses incident to Third Party Claims, but excluding
incidental, indirect or consequential damages, damages for lost
profits, and Litigation Expenses incident to Direct Claims).
(b) "Direct Claims" means claims other than Third
Party Claims.
(c) "Litigation Expenses" means attorneys' fees
and other costs and expenses incident to proceedings or
investigations respecting, or the prosecution or defense of, a
claim.
(d) "Income Tax" means any federal, state, local
or foreign governmental tax or assessment measured (in whole or
in part) by or imposed upon income, and any interest and
penalties assessed on any such tax or assessment.
(e) "Tax Claims" means any claims, demands,
suits, actions or proceedings by any Governmental Authority
involving an Amicon Company (other than Prochrom or Prochrom R&D)
that could give rise to a liability for Income Taxes attributable
to tax periods ending on or prior to December 31, 1996. A Tax
Claim shall be deemed a Third Party Claim for purposes of this
Article. For purposes of this Article, the Damages arising from
any Tax Claim involving an Amicon Company shall be reduced by the
relevant Amicon Company's net operating losses as of the Closing
Date. For purposes of the preceding sentence, the net operating
losses of any Amicon Company shall include any increases or
decreases that may be the result of an agreed upon or adjudicated
adjustment by any tax authority to the Amicon Company's net
operating losses.
(f) "Third Party Claims" means any and all
claims, demands, suits, actions or proceedings by any person or
entity, other than members of the Buyer Group or the Grace Group,
which could give rise to a right of indemnification under this
Article.
14.02 Sellers' Indemnification.
(a) Subject to the terms and limitations of this
Article, the Selling Companies shall, jointly and severally,
indemnify the Buying Companies, the Amicon Companies and the
other members of the Buyer Group against any Damages that are
caused by or arise out of (i) the failure of any Selling Company
to perform and fulfill any provision or agreement to be performed
or fulfilled by it under this Agreement or any of the Transaction
Documents, (ii) any inaccuracy in any representation or breach of
any warranty of Grace set forth in Article 5, (iii) any of the
Total Excluded Liabilities, or (iv) any Tax Claims.
(b) The representations and warranties of Grace
set forth in Article 5 shall survive the Closing. The
representations and warranties set forth in Section 5.05 and
subsequent Sections of Article 5 shall expire and be of no
further force and effect sixteen (16) months after the Closing
Date, except with respect to claims Buyer has previously asserted
against Grace in writing, setting forth with reasonable
specificity the nature of such claims.
14.03 Buyers' Indemnification. (a) Subject to the
terms and limitations of this Article, the Buying Companies
shall, and shall cause the Amicon Companies to, jointly and
severally, indemnify the Selling Companies and the other members
of the Grace Group against any Damages that are caused by or
arise out of (i) the failure of any Buying Company or Amicon
Company to perform or fulfill any provision or agreement to be
performed or fulfilled by it under this Agreement or any of the
Transaction Documents, (ii) any inaccuracy in any representation
or breach of any warranty of Buyer set forth in Article 6, (iii)
the failure of any Buying Company or Amicon Company subsequent to
the Closing to perform or fulfill its respective obligations
under any contract, agreement or obligation included in the Total
Subject Liabilities or to which an Amicon Company is a party for
which any member of the Grace Group is or may be liable, as a
guarantor or otherwise, or (iv) any of the Amicon Companies
Liabilities or the Total Subject Liabilities, including, without
limitation (but subject to the cost sharing provisions of Section
14.05, the indemnification provisions of Section 14.05(f) and the
provisions of Section 5.13), any liability or obligation relating
to the Subject Business or the Total Subject Assets based upon or
arising under any Environmental Law, including CERCLA, 42 USC
Sec. 9601, et seq., as such statute may be amended from time to
time, or any successor statute thereto.
(b) The representations and warranties of Buyer set
forth in Article 6 shall survive the Closing.
14.04 Limitations.
(a) The Buying Companies, the Amicon Companies and the
other members of the Buyer Group may not assert any claim for
indemnification under this Article (a "Buyers' Claim") with
respect to the breach of any representation or warranty in
Section 5.05 or subsequent Sections of Article 5 (but excluding
Section 5.13(b), which shall be governed by Section 14.05), (i)
unless such Buyers' Claim gives rise to Damages (excluding
Litigation Expenses for purposes of the threshold set forth in
this clause (i) only) in excess of $25,000 and (ii) unless and
until the aggregate amount of such Buyers' Claims shall exceed
$1,000,000.
(b) The dollar thresholds set forth in this Section
have been negotiated for the special purpose of the provision to
which they relate, and are not to be taken as evidence of the
level of "materiality" for purposes of any statutory or common
law which may be applicable to the transactions contemplated by
this Agreement under which a level of materiality might be an
issue.
(c) Any nonperformance of any provision of Article 9
of which Buyer or any Buying Company is aware as of the Closing
Date, shall be considered nonfulfillment of the conditions set
forth in Section 10.02, and following the Closing Date no member
of the Grace Group shall have any liability therefor or in
connection therewith.
14.05 Special Environmental Indemnification. (a)
Notwithstanding anything in this Agreement to the contrary, and
subject to the terms, conditions and limitations of Sections
14.05(b),(c), and (d), the Selling Companies shall, jointly and
severally, indemnify the Buying Companies, or any other member of
the Buyer Group against any Damages arising under Environmental
Law ("Environmental Damages") relating to or arising from
remediation actions (including, without limitation, removal,
response, cleanup, investigation, or monitoring), or liability
for personal injury, property damage, or natural resource damages
that may be imposed upon or incurred by the Buying Companies or
any other member of the Buyer Group with respect to the release,
discharge, or placement of Hazardous Substances which occurred
prior to the Closing Date, into soil, groundwater, or surface
water. The Buying Companies shall and shall cause the other
members of the Buyer Group to, maintain and preserve records
relating to the treatment, transport, storage, or disposal
(including such activities after the Closing Date) of such
Hazardous Substances. Copies of such records will be made
available upon request of the Selling Companies.
(b) None of the Buying Companies or the other members
of the Buyer Group shall be entitled to indemnification under
Section 14.05(a) until the aggregate of the Buying Companies' or
other members of the Buyer Group's Environmental Damages
described in Section 14.05(a) exceeds $250,000 for the facility
to which the claim relates (the "Environmental Deductible"), and
then such indemnification shall apply only with respect to the
Environmental Damages exceeding such Environmental Deductible.
After the Environmental Deductible has been paid and met for an
individual facility by members of the Buyer Group, then the
Buying Companies or the members of the Buyer Group, as the case
may be, on the one hand and Grace on the other hand, shall each
share in 50% of future Environmental Damages with respect to such
facility, until the aggregate expenditures for all facilities by
the Selling Companies equals $2,000,000 (the "Seller Cap"). When
the Seller Cap is reached, the Buying Companies or other members
of the Buyer Group shall bear 100% of all such Environmental
Damages in excess of the Seller Cap.
(c) The Selling Companies shall have no obligation to
indemnify any of the Buying Companies or other members of the
Buyer Group pursuant to Section 14.05(a) for any Environmental
Damages except to the extent such Environmental Damages result
from or arise out of: (i) a Third Party Claim; (ii) a suit,
order, demand, or directive by any Governmental Authority; (iii)
an affirmative obligation under Environmental Law; or (iv)
remediation obligations not disclosed in the schedule to Section
5.13(b).
(d) The Selling Companies' indemnification obligations
under Section 14.05(a) shall be limited to those matters of which
a Buying Company or a member of the Buyer Group provides notice
to Grace within two years after the Closing Date; except that if
on the second anniversary of the Closing Date, the current owner
of the property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
has filed an application for or appointment of a receiver or
filed a voluntary or involuntary petition under any provision of
a state or federal bankruptcy law, then the Buyer shall have up
to four years after the Closing Date to make a claim under
Section 14.05(a) with respect to any unknown Environmental
Damages at Seller-U.S.'s property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ related
to the matter described in item 2 of the schedule to Section
5.13(b).
(e) The Buying Companies and the other members of the
Buyer Group shall have sole control over all aspects of the
resolution of the matters for which the Selling Companies are
obligated to indemnify a Buying Company or another member of the
Buyer Group under Section 14.05(a). The Buying Companies shall
keep Grace reasonably informed of the progress of the resolution
of such matters and shall provide Grace with copies of all
material plans, reports, and correspondence submitted to any
Governmental Authority with respect to such matters. The Buying
Companies shall also give due consideration to any comments,
requests or suggestions made by Grace with respect to such
matters. Each party shall reasonably cooperate with one another
and the Buying Companies and other members of the Buyer Group
shall exercise their rights of control in good faith and in a
reasonable manner. Failure by either party to comply with any
provision of this Section 14.05(e) shall not result in a waiver
of either party's rights under Section 14.05, except to the
extent the other party is substantially prejudiced by such
failure.
(f) Grace shall indemnify the Buying Companies or any
other member of the Buyer Group against any fines or penalties
resulting from the exceedance of biological oxygen demand (BOD)
discharge limits at the Danvers, Massachusetts facility prior to
the Closing Date. Notwithstanding any other provision in this
Section regarding indemnification for Environmental Damages,
Grace shall be responsible for payment of all Environmental
Damages under this Section 14.05(f) and without regard to the
time limitations of Section 14.05(d).
14.06 Defense of Third Party Claims. (a) Promptly
after learning of any Third Party Claim for which any member of
the Grace Group or any member of the Buyer Group, as the case may
be (individually an "Indemnified Party" and collectively an
"Indemnified Group"), intends to seek indemnification from any
member of the Buyer Group or any member of the Grace Group, as
the case may be (individually an "Indemnifying Party" and
collectively an "Indemnifying Group") or to have taken into
account for purposes of determining whether or not the dollar
thresholds in Section 14.04 have been met, written notice of such
Third Party Claim shall be given by the Indemnified Group to the
Indemnifying Group. It shall be a necessary condition of any
claim by any Indemnified Party for indemnification under this
Agreement with respect to any Third Party Claim, or for such
Third Party Claim to be taken into account for purposes of
determining whether or not the dollar thresholds in Section 14.04
have been met, that the Indemnified Party notify the Indemnifying
Party prior to the time when the Indemnifying Party's ability to
contest the Third Party Claim would be materially impaired by
lack of notice. If no Indemnified Party gives such notice of a
Third Party Claim, then all members of the Indemnified Group
shall be deemed to have waived all rights to indemnification or
payment with respect to such Third Party Claim. For instances
where Grace or any member of the Grace Group is the Indemnifying
Party, notices shall be given to Grace. For instances where
Buyer or any member of Buyer Group is the Indemnifying Party,
notices shall be give to Buyer.
(b) Except as otherwise provided in subsection (d) of
this Section, the Indemnifying Group, or any member thereof, may
undertake the defense of a Third Party Claim that it has been
properly notified of, by written notice to the Indemnified Group
not later than 60 calendar days after receipt of notice of the
claim. For instances where Grace or any member of the Grace
Group is the Indemnified Party, notices shall be given to Grace.
For instances where Buyer or any member of Buyer Group is the
Indemnified Party, notices shall be give to Buyer. Failure on
the part of the Indemnifying Group to so notify the Indemnified
Group that it will undertake such defense shall be deemed to be a
waiver of the Indemnifying Group's or any member's thereof right
to undertake such defense. If the Indemnifying Group or any
member thereof undertakes the defense of any Third Party Claim,
then it shall control the investigation and defense thereof,
except that the Indemnifying Group or any member thereof shall
not require any member of the Indemnified Group, without the
Indemnified Group's prior written consent, to take or refrain
from taking any action in connection with such Third Party Claim,
or make any public statement, that it reasonably considers to be
against its interest, nor shall the Indemnifying Group or any
member thereof, without the prior written consent of the
Indemnified Group, consent to any settlement that requires any
member of the Indemnified Group to make any payment that is not
fully indemnified under this Agreement or taken into account
under Section 14.04; and subject to the Indemnifying Group's
control rights, the Indemnified Group may participate in such
investigation and defense, at its own expense. If the
Indemnifying Group does not undertake the defense of a Third
Party Claim, then except as otherwise provided in subsection (c)
of this Section, the Indemnified Group shall control such
investigation and defense, except that the Indemnified Group
shall not require a member of the Indemnifying Group, without its
prior written consent, to take or refrain from taking any action
in connection with such Third Party Claim, or make any public
statement, that the Indemnifying Group reasonably considers to be
against its interest, nor shall the Indemnified Group, without
the prior written consent of the Indemnifying Group, consent to
any settlement; and subject to the Indemnified Group's control
rights, the Indemnifying Group may participate in such
investigation and defense, at its own expense.
(c) If there is a material conflict of interest
between the Indemnified Group and the Indemnifying Group with
respect to a Third Party Claim, then neither group shall be
entitled to assume the defense thereof. In such event the
Indemnified Group and the Indemnifying Group shall each be
entitled to conduct its own investigation and defense, but the
parties shall cooperate to conduct such investigation and defense
as efficiently as possible. If a member of the Indemnifying
Group is required to indemnify the Indemnified Group with respect
to such Third Party Claim, then it shall pay the reasonable
attorneys' fees and expenses of the individual or firm
representing the Indemnified Group with respect thereto.
(d) The Buying Companies shall, and shall cause the
other members of the Buyer Group and the Amicon Companies to, and
Grace shall, and shall cause the other members of the Grace Group
to, make available to each other, their counsel and other
representatives, all information and documents reasonably
available to them that relate to any Third Party Claim, and
otherwise cooperate, including making relevant personnel
available, as may reasonably be required in connection with the
investigation and defense thereof.
(e) If any Tax Claim results in a refund of any amount
previously paid by an Amicon Company, if any Amicon Company
directly or indirectly receives a refund for previously paid
taxes, interest and penalties that relates to Income Taxes
attributable to tax periods ending on or before December 31, 1996
(whether as the result of a Tax Claim or otherwise), then Grace
or another designated member of the Grace Group shall be entitled
to such refund and Buyer shall, or shall cause the appropriate
Amicon Company to, pay such refund to Grace or its designee
promptly after receipt thereof.
(f) The provisions of Section 14.06 shall not apply to
any Third Party Claim that is subject to Special Environmental
Indemnification.
14.07 No Consequential or Lost Profit Damages. No
party to this Agreement, nor any other member of the Grace Group
or the Buyer Group, shall seek or be entitled to incidental,
indirect or consequential damages or damages for lost profits in
any claim for indemnification under this Article, nor, in
connection with any Direct Claim, shall it accept payment of any
award or judgment for such indemnification to the extent that
such award or judgment includes such party's incidental, indirect
or consequential damages or damages for lost profits.
Article 15
Cooperation in Various Matters
15.01 Mutual Cooperation. After the Closing, each
party to this Agreement shall, and shall cause its respective
subsidiaries to, cooperate with each other party and its
subsidiaries as reasonably requested by such other party in
connection with the prosecution or defense of any claims or other
matters relating to the Subject Business. Such cooperation shall
include the furnishing of testimony and other evidence,
permitting access to employees and providing information
regarding the whereabouts of former employees.
15.02 Preservation of Buyers' Files and Records.
For a period of seven years after the Closing, the Buying
Companies shall, and shall cause the other members of the Buyer
Group to, preserve all files and records in their possession
relating to the Subject Business prior to the Closing, allow the
Grace Group access to such files and records and the right to
make copies and extracts therefrom at any time during normal
business hours, and not dispose of any thereof, except that at
any time after the Closing, any member of the Buyer Group may
give Grace written notice of its intention to dispose of any
records that are more than five years old, specifying the items
to be disposed of in reasonable detail. Any member of the Grace
Group may, within a period of sixty days after Grace's receipt of
any such notice, notify Buyer of the Grace Group's desire to
retain one or more of the items to be disposed of. Buyer shall,
upon receipt of such a notice from a member of the Grace Group,
deliver to such member of the Grace Group, at the Grace Group's
expense, the items which the Grace Group has elected to retain.
15.03 Preservation of Selling Companies' Files
and Records. For a period of seven years after the Closing, the
Selling Companies shall, and shall cause the other members of the
Grace Group to, preserve all files and records in their
possession relating directly and primarily to the Subject
Business, allow the Buyer Group access to such files and records
and the right to make copies and extracts therefrom at any time
during normal business hours, and not dispose of any thereof,
except that at any time after the Closing, any member of the
Grace Group may give Buyer written notice of its intention to
dispose of any records that are more than five years old,
specifying the items to be disposed of in reasonable detail. Any
member of the Buyer Group may, within a period of sixty days
after receipt of any such notice, notify Grace of the Buyer
Group's desire to retain one or more of the items to be disposed
of. Grace shall, upon receipt of such a notice from the Buyer
Group, deliver to such member of the Buyer Group, at the Buyer
Group's expense, the items which the Buyer Group has elected to
retain.
Article 16
Post-Closing Matters
16.01 Reports. The Buying Companies shall, and shall
cause the Amicon Companies and their respective employees to,
prepare on a timely basis, in accordance with the instructions of
the Grace Group, such financial, tax and other reports and
statements relating to the Subject Business or the Amicon
Companies for periods prior to the Closing as may be requested by
Grace.
16.02 Renewal of Guaranteed Items. Without the prior
written consent of the Treasurer or any Assistant Treasurer of
Grace, the Buying Companies shall not, and shall not permit the
Amicon Companies or any other member of the Buyer Group to, renew
or extend the term of, increase its obligations under, or
transfer to a third party, any lease, loan, contract or other
obligation for which Grace or any other member of the Grace Group
is or may be liable, as guarantor, original tenant, primary
obligor, or otherwise, unless all obligations of the Grace Group
with respect thereto are thereupon terminated by documentation
satisfactory in form and substance to Grace.
16.03 Payment and Discharge of Certain Intercompany
Liabilities. (a)Surviving Intercompany Accounts payable by any
unit of the Subject Business to Grace's ▇▇▇▇▇▇▇ product line
shall be paid in cash by the appropriate member of the Buyer
Group or Amicon Company, as the case may be, to the appropriate
member of the Grace Group in accordance with normal commercial
practices, but in no event later than 60 days after the Closing.
Except for Surviving Intercompany Accounts and as otherwise
specifically provided in the Ancillary Agreements, effective upon
the occurrence of the Closing (as provided in Section 3.08), any
amounts owed by any member of the Grace Group to any Amicon
Company, or by any Amicon Company to any other member of the
Grace Group shall be deemed paid and discharged.
(b) All checks written by Seller-U.S. in the ordinary
course of business prior to the Closing will be honored by Grace
and all obligations of Seller-U.S. to reimburse Grace for such
checks shall be deemed paid and discharged, effective as of the
Closing.
(c) At Grace's request at any time and from time to time
after the Closing, Buyer shall promptly reimburse Grace for any
amounts paid directly by Grace or Seller-U.S. after the Closing
to third parties on account of expenses incurred prior to the
Closing that relate directly and exclusively to the Subject
Business.
16.04 Use of "Grace" Name. After the Closing, the
Amicon Companies and the Buying Companies shall have no right to
use the "Grace" name, and the Buying Companies shall not, or
permit the Amicon Companies or any other member of the Buyer
Group to, refer (other than in response to unsolicited inquiries
or in announcements of the occurrence of the Closing) to their
respective businesses as formerly being owned by or associated
with any member of the Grace Group, except that for a period of
six months after the Closing, the Amicon Companies and the Buying
Companies shall have the right to use any catalogues, sales and
promotional materials and printed forms that use such name and
are included in the Total Subject Assets or the Amicon Companies
Assets as of the Closing, or have been ordered prior to the
Closing for use in the Subject Business, but only to the extent
that it is not practicable to remove or cover up the "Grace"
name. The Buying Companies shall use reasonable efforts to
minimize such usage and to discontinue it as soon as practicable
after the Closing.
16.05 Intercompany Agreements. All contracts, licenses,
agreements, commitments or other arrangements between Grace (or
any other member of the Grace Group) and the Amicon Companies or
the Subject Business unit of any Selling Company, whether written
or oral, and whether express or implied, pursuant to which Grace
(or any other member of the Grace Group) provides management,
administrative, legal, financial, accounting, data processing,
insurance, technical support, or other services to the Subject
Business or the Amicon Companies, or the use of any assets of any
member of the Grace Group, or pursuant to which rights,
privileges or benefits are accorded to the Subject Business or
the Amicon Companies as a unit of the Grace Group, shall
terminate as of the Closing. After the Closing, none of the
Buying Companies or the Amicon Companies shall have any rights
under any similar contract, license, agreement, commitment or
arrangement with Grace (or any other member of the Grace Group)
except rights under the Ancillary Agreements.
16.06 Confidentiality. (a) Buyer and Grace
acknowledge that, after the Closing, each of them may have access
to Confidential Information of the other as a result of the
arrangements described in the Ancillary Agreements or
arrangements to be entered into as contemplated in Section 16.06.
Throughout the term of such agreements, and for a period of seven
years thereafter, the parties shall hold in confidence such
Confidential Information and shall not use or disclose any of it
except as may be required by law in the reasonable judgment of
such party's counsel (in which event the party so required to
disclose such Confidential Information shall provide the other
party with prompt notice so that such other party may seek a
protective order or other appropriate remedy, and the party so
required to disclose such Confidential Information shall not
oppose any action by the other party to obtain such order or
remedy). For purposes of this subsection, the term "Confidential
Information" shall mean information about a party hereto or its
business, that is obtained by the other party while carrying out
the activities under, or in connection with this Agreement or the
Ancillary Agreements.
(b) Buyer and Grace acknowledge that each of them may
have in their possession, as a result of their prior
relationships and the transactions contemplated by this
Agreement, Confidential Information concerning proprietary
technology that is exclusively owned by the other party. For a
period of seven years after the Closing Date, the parties agree
to hold such Confidential Information in confidence and not to
use or disclose any of it to third parties except as may be
required by law in the reasonable judgment of such party's
counsel (in which event the party so required to disclose such
Confidential Information shall provide the other party with
prompt notice so that such other party may seek a protective
order or other appropriate remedy, and the party so required to
disclose such Confidential Information shall not oppose any
action by the other party to obtain such order or remedy). For
purposes of this subsection, the term "Confidential Information"
shall mean all proprietary information, including but not limited
to all trade secrets, know-how, inventions, formulae, data,
specifications, techniques, procedures, samples, equipment,
processes, computer programs, test results and evaluations that
relate to a party's business and are owned exclusively by a party
without any right or license having been granted to the other
party.
(c) For purposes of subsections (a) and (b) of this
Section, Confidential Information shall not include information
that (i) is available to the public, or (ii) becomes available to
the public through no act or omission of the obtaining party, or
(iii) becomes available to the obtaining party from a third party
that, upon inquiry, is not known by the obtaining party to be
under any obligation of confidentiality with respect thereto.
Each party hereto shall inform its directors, officers, employees
and representatives (collectively, its "Representatives") who may
obtain Confidential Information of the existence of the
obligations set forth in this Section and each party shall be
responsible for its Representatives' compliance with such
obligations.
16.07 Income Tax Matters.
(a) Tax Periods Ending on or Before the Closing Date. The
Selling Companies shall prepare or cause to be prepared and file
or cause to be filed all Income Tax Returns and pay all Income
Taxes related to the Amicon Companies operation of the Subject
Business for all periods ending on or prior to December 31, 1996.
The Buying Companies shall and shall cause the Amicon Companies
to, as reasonably requested by the Selling Companies, provide the
Selling Companies with all information and documents in their
possession and control necessary or appropriate to enable the
Selling Companies to perform their obligations under this
Section.
(b) Tax Periods Beginning Before and Ending After the
Closing Date. Buyer shall cause the Amicon Companies to prepare
and file any Income Tax Returns concerning the Amicon Companies
operation of the Subject Business for Income Tax periods which
begin before the Closing Date and end after December 31, 1996.
The Selling Companies, as reasonably requested by the Amicon
Companies, shall provide the Amicon Companies with all
information and documents in their possession and control
necessary or appropriate to enable the Amicon Companies to
perform their obligations under this Section. Without Grace's
prior written consent, the Buying Companies agree that they shall
not amend or otherwise modify any Tax return for Income Taxes an
Amicon Company where any portion of the taxes, interest and
penalties that are reported in such return are subject to
indemnification by the Selling Companies under Article 14.05.
(c) Cooperation on Tax Matters.
(i) The Selling Companies shall and the Buying
Companies shall cause the Amicon Companies to cooperate
fully, as and to the extent reasonably requested by the
other party, in connection with the filing of Income Tax
Returns pursuant to this Section 16.07 and any audit,
litigation or other proceeding with respect to Income Taxes.
Such cooperation shall include the retention and (upon the
other party's request) the provision of records and
information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees
available on a mutually convenient basis to provide
additional information and explanation of any material
provided hereunder. To the extent that they are in
possession of such books and records after the Closing Date,
the Selling Companies shall and the Buying Companies shall
cause the Amicon Companies to (A) retain all books and
records with respect to Income Tax matters pertinent to the
Subject Business relating to any taxable period beginning
before the Closing Date until the expiration of the statute
of limitations (and, to the extent notified by the other
parties, any extensions thereof) of the respective taxable
periods, and to abide by all record retention agreements
entered into with any taxing authority, and (B) to give the
other parties reasonable written notice prior to
transferring, destroying or discarding any such books and
records and, if the other parties so request, the discarding
parties shall allow the other parties to take possession of
such books and records.
(ii) The Selling Companies shall and the Buying
Companies shall cause the Amicon Companies to, upon request,
use all reasonable efforts to obtain any certificate or
other document from any Governmental Authority or any other
person as may be necessary to mitigate, reduce or eliminate
any Income Tax that could be imposed (including, but not
limited to, with respect to the transactions contemplated
hereby).
(d) Tax Sharing Agreements. All Income Tax sharing
agreements or similar agreements relating to or involving the
Subject Business shall be terminated as of the Closing Date and,
after the Closing Date, the Amicon Companies shall not be bound
thereby or have any liability thereunder.
(e) Section 338 Elections. Buyer shall make simultaneous
elections under Section 338 of the Code with respect to all of
the Amicon Companies. Buyer acknowledges that failure to make
such elections could have certain adverse U.S. federal tax
consequences to the Grace Group. The Buying Companies shall
indemnify the Selling Companies and the other members of the
Grace Group against any and all additional U.S. federal and state
taxes which may result, including but not limited to by reason of
reduced foreign tax credits, from the Buyer's failure to make an
election under Section 338 of the Code with respect to less than
all of the Amicon Companies.
(f) Section 1248. Unless the Buying Companies make or
cause to be made a Code Section 338 election for Amicon Canada,
Ltd., Amicon GmbH, all of the Prochrom Companies and Amicon U.K.
(hereinafter the foregoing corporations collectively will be
referred to as the "1248 Companies"), the Buying Companies shall
not cause or permit any of the 1248 Companies to make any
distributions that would be classified as a dividend under Code
Section 301 on or before December 31, 1997 (a "Prohibited
Distribution"). For purposes of the preceding sentence, the term
1248 Companies shall include, without limitation, any successor
in interest to an Amicon Company through merger, reorganization,
consolidation, amalgamation, or otherwise. The Buying Companies
shall indemnify the Selling Companies and the other members of
the Grace Group against any and all additional U.S. federal and
state taxes that may be caused by or arise out of any Prohibited
Distribution by an Amicon Company to Buyer or any member of Buyer
Group.
(g) Continued Existence of Amicon Companies. Buyer and the
Buying Companies shall cause the Amicon Companies not to make any
distributions to their shareholders during 1997. Buyer shall
indemnify the Selling Companies and the other members of the
Grace Group against any and all additional U.S. federal and state
taxes that may be caused by or arise out of any distribution by
an Amicon Company to Buyer or any member of Buyer Group.
16.08 Power of Attorney. From and after the Closing Date,
each Selling Company hereby irrevocably constitutes and appoints
Buyer and its successors, assigns and designees as its true and
lawful attorney-in-fact, with full power of substitution, in the
name of Buyer or itself, on behalf of and for the benefit of
Buyer, to collect all accounts receivable and other items being
transferred, conveyed and assigned to the Buying Companies as
provided herein; to endorse, without recourse, checks, notes and
other instruments relating to the Total Subject Assets in the
name of itself; to institute and prosecute, in the name of
itself, all proceedings which Buyer may deem proper in order to
collect, assert or enforce any claim, right or title of any kind
in or to the Total Subject Assets; to defend and compromise any
and all actions, suits or proceedings in respect of any of the
Total Subject Assets (subject to the provisions of Section
14.06); and to do all such acts and things in relation to the
Total Subject Assets as Buyer may deem advisable. Each of the
Selling Companies agrees that the foregoing powers are coupled
with an interest and shall be irrevocable. Each Selling Company
further agrees that Buyer shall retain for its own account any
amounts collected pursuant to the foregoing powers. If any
Selling Company receives any payments on account of the Total
Subject Assets to which a Buying Company or Amicon Company is
entitled hereunder, it shall promptly notify Buyer thereof, hold
such amounts to which Buyer is entitled in trust for Buyer and
promptly transfer and deliver to Buyer or its designees any cash
or other property received by it, directly or indirectly, at any
time after the Closing Date in respect of any accounts receivable
or otherwise relating to the assets, properties, rights or
business transferred, conveyed and assigned to the Buying
Companies as provided herein.
Article 17
Expenses and Taxes
17.01 Buyers' Expenses. The Buying Companies, jointly
and severally, shall pay and indemnify the Selling Companies
against all expenses incurred by or on behalf of the Buying
Companies in connection with the preparation, authorization,
execution and performance of this Agreement and the transactions
contemplated hereby, including, but not limited to, all fees and
expenses of brokers, finders, agents, representatives, counsel
and accountants.
17.02 Sellers' Expenses. The Selling Companies,
jointly and severally, shall pay and indemnify the Buying
Companies against all expenses incurred by or on behalf of the
Selling Companies in connection with the preparation,
authorization, execution and performance of this Agreement and
the transactions contemplated hereby, including, but not limited
to, the fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and all other
fees and expenses of brokers, finders, agents, representatives,
counsel and accountants.
17.03 Transfer Taxes. The Buying Companies and
Selling Companies shall share equally any sales, registration,
value added (only if nonrecoverable by a Buying Company),
transfer, or similar taxes and any tax related filing fees
(including any penalties and interest thereon) applicable to the
transfer to the Buying Companies of the Total Subject Assets or
the Amicon Securities pursuant to this Agreement.
17.04 VAT Included in Total Subject Assets. (a) The
Buying Companies and the Selling Companies acknowledge that the
Selling Companies have paid or have an obligation to pay to the
appropriate Governmental Authorities value added taxes with
respect to sales reflected in certain of the accounts receivable
included in Total Subject Assets. Buyer and each Buying Company
agree that, upon collection of any such account receivable, Buyer
or such Buying Company, as the case may be, shall pay to the
appropriate Selling Company, an amount equal to the portion of
such account receivable representing value added taxes. Such
amount shall be paid within 15 days following the end of each
month after the Closing. The Buying Companies may offset against
such payment the amount of value added taxes that they pay as
part of the payment of the accounts payable included in Total
Subject Liabilities, except to the extent such amount is
recoverable, either from a Governmental Authority or through
collections of accounts receivable arising after the Closing.
(b) The Buying Companies and Selling Companies
acknowledge that the Subject Business, the purchase and sale of
which is governed by this Agreement, constitutes an active and
ongoing business which consists of multiple divisions and
functions. Buyer acknowledges that it intends to continue the
operation of the Subject Business in a similar form to that
currently conducted.
Article 18
Notices
18.01 Notices. All notices, requests, demands and
other communications required or permitted to be given under this
Agreement shall be deemed to have been duly given if in writing
and delivered personally, by reputable overnight courier service,
by telephone facsimile transmission, or by first-class, postage
prepaid, registered or certified mail, addressed as follows:
If to any of the Selling Companies or, prior to the Closing,
the Amicon Companies:
c/o ▇. ▇. ▇▇▇▇▇ & Co.-Conn.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇. ▇. ▇▇▇▇▇ & Co.-▇▇▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to any of the Buying Companies or, after the Closing, the
Amicon Companies:
Millipore Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Millipore Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office of the General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any of Buying Companies or, after the Closing, any of the Amicon
Companies may change the address to which such communications are
to be directed to it by giving written notice to Grace in the
manner provided above. Any of the Selling Companies or, prior to
the Closing, any of the Amicon Companies may change the address
to which such communications are to be directed to it by giving
written notice to Buyer in the manner provided above.
Article 19
General
19.01 Entire Agreement. This Agreement, including the
Exhibits and Schedules hereto and the Transaction Documents, sets
forth the entire agreement and understanding of the parties and
related persons with respect to the subject matter hereof and
supersedes all prior agreements, arrangements and understandings
relating thereto. No representation, promise, inducement or
statement of intention relating to the transactions contemplated
by this Agreement has been made by any party or any related
person which is not set forth in this Agreement or the agreements
referred to herein.
19.02 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of New York,
excluding (a) any conflict-of-laws provisions thereof that would
otherwise require the application of the law of any other
jurisdiction, and (b) if applicable, the United Nations
Convention on Contracts for the International Sale of Goods.
19.03 Submission to Jurisdiction. Each Buying Company
and Selling Company hereby irrevocably submits in any suit,
action or proceeding arising out of or relating to this Agreement
or any of the Transaction Documents to which it is or will be a
party, or any of its obligations hereunder or thereunder, to the
jurisdiction of the United States District Court for
Massachusetts and the jurisdiction of any court of Massachusetts,
and waives any and all objections to such jurisdiction that it
may have under the laws of the State of Massachusetts or any
other jurisdiction, except to the extent that this Agreement or
any Transaction Document specifically provides that a particular
dispute is to be referred to a court in another jurisdiction or
to arbitration.
19.04 Governing Language. This Agreement has been
executed and delivered in a text using the English language,
which text, despite any translation into another language, shall
be controlling.
19.05 Successors. This Agreement shall be assignable
by Buyer only with the prior consent of Grace, and by Grace only
with the prior consent of Buyer, except that Buyer may assign,
without the consent of Grace, any of its rights to purchase any
of the Total Subject Assets or Amicon Securities to any Buying
Company or any other member of the Buyer Group, but no such
assignment shall relieve Buyer of any of its obligations
hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
19.06 Amendments and Waivers. This Agreement may be
amended, superseded or canceled, and any of the terms hereof may
be waived, only by a written instrument specifically referring to
this Agreement and specifically stating that it amends,
supersedes or cancels this Agreement or waives any of its terms,
executed by all parties, or in the case of a waiver, by the party
waiving compliance; in the case of an amendment under Section
13.01(b), executed by Grace and Buyer, or in the case of another
amendment that does not affect all parties, by Grace, Buyer and
any affected parties. Failure of any party to insist upon strict
compliance with any of the terms of this Agreement in one or more
instances shall not be deemed to be a waiver of its rights to
insist upon such compliance in the future, or upon compliance
with other terms hereof.
19.07 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be an original, but
all of which shall constitute but one agreement.
19.08 Captions. The captions used in this Agreement
are for convenience of reference only and shall not be considered
in the interpretation of the provisions hereof.
19.09 Specific Performance. The parties acknowledge that
irreparable damage would occur in the event any of the provisions
of this Agreement were not performed in accordance with the terms
hereof, and that the parties shall, upon a proper showing, be
entitled to specific performance of the terms hereof in addition
to any other remedy at law or in equity.
IN WITNESS WHEREOF, the parties have executed this
instrument on the date first above written.
▇. ▇. ▇▇▇▇▇ & CO.-▇▇▇▇. MILLIPORE CORPORATION
By: By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President Senior Vice President
▇. ▇. ▇▇▇▇▇ & Co.("WRG"), a Delaware corporation and the record
and beneficial owner of all issued and outstanding capital stock
of ▇. ▇. ▇▇▇▇▇ & Co.-▇▇▇▇. ("▇▇▇▇▇"), hereby represents and
warrants to Buyer that Grace, either directly or through
ownership of its subsidiaries, owns more than 95% of the total
assets of WRG on a consolidated basis.
▇. ▇. ▇▇▇▇▇ & CO.
By:___________________
Title:________________
H:\SHARED\MSHELNIT\WP\AMICON\MILLIPOR\PURCHMIL.END
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 1
Amicon Companies Assets
"Amicon Companies Assets" means all assets, properties and
rights of Amicon Canada, Amicon Germany, Amicon U.K. and the
Prochrom Companies, including but not limited to:
(i) real property located in Stonehouse, England and
owned by Amicon U.K., and real property located in ▇▇▇▇▇,
France and owned by Prochrom S.A., including all easements,
rights-of-way and other appurtenances thereto;
(ii) production facilities, buildings and improvements
owned by Amicon U.K. and the Prochrom Companies;
(iii) machinery, equipment, furniture, fixtures, office
equipment and other tangible personal property;
(iv) raw materials, work in process, finished goods,
spare parts and supplies inventories;
(v) invention disclosures, patents, patent
applications, and trademark registrations including the
Prochrom patents listed in the schedule to Section 5.14(a);
(vi) all trade secrets, unpatented technology, know-how
and formulae;
(vii) amounts receivable from persons that are not
members of the Grace Group with respect to the sale of
products and services;
(viii) amounts receivable from a unit of the Grace
Group that are Surviving Intercompany Accounts;
(ix) rights under contracts and agreements (including
leases for real property) whether relating to periods before
or after the Closing Date; and
(x) files, customer lists, accounting records,
marketing materials and general intangibles;
except for (A) rights to credits or refunds of Income Taxes
relating to periods ending on or prior to December 31, 1996, (B)
all amounts owed by a member of the Grace Group to an Amicon
Company other than the Surviving Intercompany Accounts, (C)
prepaid insurance and rights under Grace insurance programs
except as provided in the Insurance Procedures Agreement, and (D)
employee benefit plans and funds maintained by or in conjunction
with another member of the Grace Group and prepayments and
refunds paid on account of such employee benefit plans and funds,
except as provided in the Employee Benefits Agreement.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 2
French Assets and Liabilities
"French Subject Assets" means all of Grace France's (1)
Subject Business inventory, (2) machinery, equipment, furniture,
fixtures, office equipment and other tangible personal property
used primarily in the Subject Business, (3) amounts receivable
with respect to the sale of Subject Business products, (4)
amounts receivable that are Surviving Intercompany Accounts, (5)
amounts receivable from Continued Employees for travel and other
advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"French Subject Liabilities" means all of Grace France's
liabilities and obligations with respect to (1) amounts payable
to unaffiliated parties pertaining primarily to the Subject
Business, (2) liabilities and obligations to unaffiliated persons
related to or arising out of the sale of Subject Business
inventory (such as commissions, insurance, and shipping costs),
or the use of Subject Business products by such persons (such as
warranty obligations), (3) liabilities and obligations under
contracts and agreements with unaffiliated persons pertaining
primarily to the Subject Business, (4) liabilities and
obligations under employment agreements with Continued Employees,
including but not limited to bonuses and other incentive
compensation (whether or not accrued), except as otherwise
provided in the Employee Benefits Agreement, compensation
expenses for the payroll period during which the Closing occurs
and obligations with respect to accrued vacation, and (5) amounts
payable included in Surviving Intercompany Accounts, including
amounts due for the purchase of Subject Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 3
Irish Assets and Liabilities
"Irish Subject Assets" means all assets, properties and
rights of Amicon Ireland, including but not limited to:
(i) real property owned by Amicon Ireland in Limerick,
Ireland, including all easements, rights-of-way and other
appurtenances thereto;
(ii) production facilities, buildings and improvements;
(iii) machinery, equipment, furniture, fixtures, office
equipment and other tangible personal property;
(iv) raw materials, work in process, finished goods,
spare parts and supplies inventories;
(v) invention disclosures, patents, patent
applications (referred to by Seller-U.S.'s reference
number), and trademark registrations (and applications
therefor) listed in the schedule to Section 5.14(a);
(vi) all trade secrets, unpatented technology, know-how
and formulae;
(vii) amounts receivable from persons that are not
members of the Grace Group with respect to the sale of
products and services;
(viii) amounts receivable from a unit of the Grace
Group that are Surviving Intercompany Accounts;
(ix) rights under contracts and agreements (including
but not limited to leases of real property and insurance
policies under Stand-Alone Programs (as defined in the
Insurance Procedures Agreement) whether relating to periods
before or after the Closing Date; and
(x) files, customer lists, accounting records,
marketing materials and general intangibles;
except for (A) rights to credits or refunds related to all taxes
of any kind, including but not limited to Income Taxes (as
defined in Section 14.01), value added taxes, an unemployment and
social taxes, but excluding real and personal property taxes, (B)
all amounts owed by a member of the Grace Group to an Amicon
Company other than the Surviving Intercompany Accounts, (C)
prepaid insurance and rights under Grace Insurance Programs (as
defined in the Insurance Procedures Agreement), except as
provided in the Insurance Procedures Agreement, and (D) employee
benefit plans and funds maintained by or in conjunction with
another member of the Grace Group and prepayments and refunds
paid on account of such employee benefit plans and funds, except
as provided in the Employee Benefits Agreement.
"Irish Subject Liabilities" means all liabilities and
obligations of Amicon Ireland of whatever nature whatsoever,
whether accrued or unaccrued, whether absolute or contingent and
whether relating to periods before or after the Closing
(including but not limited to liabilities and obligations under
Environmental Laws), except for (a) liabilities and obligations
with respect to employee benefit plans and funds maintained by or
in conjunction with another member of the Grace Group, except as
provided in the Employee Benefits Agreement, (b) liabilities
related to all taxes of any kind, including but not limited to
Income Taxes (as defined in Section 14.01), value added taxes, an
unemployment and social taxes, but excluding real and personal
property taxes, (c) liabilities owed to any member of the Grace
Group other than liabilities included in the Surviving
Intercompany Accounts, (d) liabilities under Grace Insurance
Programs as provided in the Insurance Procedures Agreement, and
(e) indebtedness for borrowed money, including any accrued
interest thereon, owed to third parties who are not members of
the Grace Group.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 4
Italian Assets and Liabilities
"Italian Subject Assets" means all of Grace Italy's (1)
Subject Business inventory, (2) machinery, equipment, furniture,
fixtures, office equipment and other tangible personal property
used primarily in the Subject Business, (3) amounts receivable
with respect to the sale of Subject Business products, (4)
amounts receivable that are Surviving Intercompany Accounts, (5)
amounts receivable from Continued Employees for travel and other
advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"Italian Subject Liabilities" means all of Grace Italy's
liabilities and obligations with respect to (1) amounts payable
to unaffiliated parties pertaining primarily to the Subject
Business, (2) liabilities and obligations to unaffiliated persons
related to or arising out of the sale of Subject Business
inventory (such as commissions, insurance, and shipping costs),
or the use of Subject Business products by such persons (such as
warranty obligations), (3) liabilities and obligations under
contracts and agreements with unaffiliated persons pertaining
primarily to the Subject Business, (4) liabilities and
obligations under employment agreements with Continued Employees,
including but not limited to bonuses and other incentive
compensation (whether or not accrued), except as otherwise
provided in the Employee Benefits Agreement, compensation
expenses for the payroll period during which the Closing occurs
and obligations with respect to accrued vacation, and (5) amounts
payable included in Surviving Intercompany Accounts, including
amounts due for the purchase of Subject Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 5
Japanese Assets and Liabilities
"Japanese Subject Assets" means all of Grace Japan's (1)
Subject Business inventory, (2) machinery, equipment, furniture,
fixtures, office equipment and other tangible personal property
used primarily in the Subject Business, (3) amounts receivable
with respect to the sale of Subject Business products, (4)
amounts receivable that are Surviving Intercompany Accounts, (5)
amounts receivable from Continued Employees for travel and other
advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"Japanese Subject Liabilities" means all of Grace Japan's
liabilities and obligations with respect to (1) amounts payable
to unaffiliated parties pertaining primarily to the Subject
Business, (2) liabilities and obligations to unaffiliated persons
related to or arising out of the sale of Subject Business
inventory (such as commissions, insurance, and shipping costs),
or the use of Subject Business products by such persons (such as
warranty obligations), (3) liabilities and obligations under
contracts and agreements with unaffiliated persons pertaining
primarily to the Subject Business, (4) liabilities and
obligations under employment agreements with Continued Employees,
including but not limited to bonuses and other incentive
compensation (whether or not accrued), except as otherwise
provided in the Employee Benefits Agreement, compensation
expenses for the payroll period during which the Closing occurs
and obligations with respect to accrued vacation, and (5) amounts
payable included in Surviving Intercompany Accounts, including
amounts due for the purchase of Subject Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 6
Netherlands Assets and Liabilities
"Netherlands Subject Assets" means all of Grace Netherlands'
(1) Subject Business inventory, (2) machinery, equipment,
furniture, fixtures, office equipment and other tangible personal
property used primarily in the Subject Business, (3) amounts
receivable with respect to the sale of Subject Business products,
(4) amounts receivable that are Surviving Intercompany Accounts,
(5) amounts receivable from Continued Employees for travel and
other advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"Netherlands Subject Liabilities" means all of Grace
Netherlands' liabilities and obligations with respect to
(1) amounts payable to unaffiliated parties pertaining primarily
to the Subject Business, (2) liabilities and obligations to
unaffiliated persons related to or arising out of the sale of
Subject Business inventory (such as commissions, insurance, and
shipping costs), or the use of Subject Business products by such
persons (such as warranty obligations), (3) liabilities and
obligations under contracts and agreements with unaffiliated
persons pertaining primarily to the Subject Business, (4)
liabilities and obligations under employment agreements with
Continued Employees, including but not limited to bonuses and
other incentive compensation (whether or not accrued), except as
otherwise provided in the Employee Benefits Agreement,
compensation expenses for the payroll period during which the
Closing occurs and obligations with respect to accrued vacation,
and (5) amounts payable included in Surviving Intercompany
Accounts, including amounts due for the purchase of Subject
Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 7
Swedish Assets and Liabilities
"Swedish Subject Assets" means all of Grace Sweden's (1)
Subject Business inventory, (2) machinery, equipment, furniture,
fixtures, office equipment and other tangible personal property
used primarily in the Subject Business, (3) amounts receivable
with respect to the sale of Subject Business products, (4)
amounts receivable that are Surviving Intercompany Accounts, (5)
amounts receivable from Continued Employees for travel and other
advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"Swedish Subject Liabilities" means all of Grace Sweden's
liabilities and obligations with respect to (1) amounts payable
to unaffiliated parties pertaining primarily to the Subject
Business, (2) liabilities and obligations to unaffiliated persons
related to or arising out of the sale of Subject Business
inventory (such as commissions, insurance, and shipping costs),
or the use of Subject Business products by such persons (such as
warranty obligations), (3) liabilities and obligations under
contracts and agreements with unaffiliated persons pertaining
primarily to the Subject Business, (4) liabilities and
obligations under employment agreements with Continued Employees,
including but not limited to bonuses and other incentive
compensation (whether or not accrued), except as otherwise
provided in the Employee Benefits Agreement, compensation
expenses for the payroll period during which the Closing occurs
and obligations with respect to accrued vacation, and (5) amounts
payable included in Surviving Intercompany Accounts, including
amounts due for the purchase of Subject Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 8
Swiss Assets and Liabilities
"Swiss Subject Assets" means all of Grace Switzerland's (1)
Subject Business inventory, (2) machinery, equipment, furniture,
fixtures, office equipment and other tangible personal property
used primarily in the Subject Business, (3) amounts receivable
with respect to the sale of Subject Business products, (4)
amounts receivable that are Surviving Intercompany Accounts, (5)
amounts receivable from Continued Employees for travel and other
advances, (6) prepaid expenses, the benefit of which may
effectively be transferred to a third party (except as provided
in the Insurance Procedures Agreement or the Employee Benefits
Agreement), (7) rights under contracts and agreements with
unaffiliated parties pertaining to the sale of Subject Business
products, (8) rights under leases of real and personal property
pertaining primarily to the Subject Business, except for lease
deposits, and (9) rights under employment agreements with
Continued Employees.
"Swiss Subject Liabilities" means all of Grace Switzerland's
liabilities and obligations with respect to (1) amounts payable
to unaffiliated parties pertaining primarily to the Subject
Business, (2) liabilities and obligations to unaffiliated persons
related to or arising out of the sale of Subject Business
inventory (such as commissions, insurance, and shipping costs),
or the use of Subject Business products by such persons (such as
warranty obligations), (3) liabilities and obligations under
contracts and agreements with unaffiliated persons pertaining
primarily to the Subject Business, (4) liabilities and
obligations under employment agreements with Continued Employees,
including but not limited to bonuses and other incentive
compensation (whether or not accrued), except as otherwise
provided in the Employee Benefits Agreement, compensation
expenses for the payroll period during which the Closing occurs
and obligations with respect to accrued vacation, and (5) amounts
payable included in Surviving Intercompany Accounts, including
amounts due for the purchase of Subject Business inventory.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Exhibit 9
U.S. Assets and Liabilities
"U.S. Subject Assets" means (a) all assets, properties and
rights of Seller-U.S., other than the U.S. Excluded Assets,
including but not limited to:
(i) real property owned by Seller-U.S. in Danvers,
Massachusetts, as more particularly described in the
Appendix to this Exhibit;
(ii) production facilities, buildings and improvements;
(iii) machinery, equipment, furniture, fixtures, office
equipment and other tangible personal property;
(iv) raw materials, work in process, finished goods,
spare parts and supplies inventories;
(v) invention disclosures, patents, patent
applications (referred to by Seller-U.S.'s reference
number), and trademark registrations (and applications
therefor) listed in the schedule to Section 5.14(a);
(vi) all trade secrets, unpatented technology, know-how
and formulae;
(vii) amounts receivable from persons that are not
members of the Grace Group with respect to the sale of
products and services;
(viii) amounts receivable from a unit of the Grace
Group that are Surviving Intercompany Accounts;
(ix) rights under contracts and agreements (including
but not limited to leases of real property) whether relating
to periods before or after the Closing Date; and
(x) files, customer lists, accounting records,
marketing materials and general intangibles; and
(b) the following assets, properties and rights of Grace:
(i) invention disclosures, patents, patent applications
(referred to by Grace's reference number), and trademark
registrations (and applications therefor) listed in the
schedule to Section 5.14(a); and
(ii) any other assets, properties and rights of Grace
directly and primarily used in the Subject Business.
"U.S. Subject Liabilities" means all liabilities and
obligations of Seller-U.S. of whatever nature whatsoever, whether
accrued or unaccrued, whether absolute or contingent and whether
relating to periods before or after the Closing (including but
not limited to liabilities and obligations under Environmental
Laws), other than the U.S. Excluded Liabilities.
"U.S. Excluded Assets" means (i) cash, cash items and
deposits with third parties, other than ▇▇▇▇▇ cash, (ii) refunds
of Income Taxes, (iii) amounts receivable from any other member
of the Grace Group that is not a Surviving Intercompany Account,
(iv) claims with respect to insurance coverage obtained from, or
in conjunction with, Grace or any other member of the Grace
Group, and prepayments and refunds of amounts previously paid on
account of such insurance, except as otherwise provided in the
Insurance Procedures Agreement, (vi) employee benefit plans and
funds maintained by, or in conjunction with, Grace or any other
member of the Grace Group, and prepayments and refunds of amounts
previously paid on account of such employee benefit plans and
funds, except as otherwise provided in the Employee Benefits
Agreement, (vii) rights under confidentiality agreements under
which Seller-U.S. is the recipient of proprietary information
from a third party, and (viii) corporate and shareholder records,
minute books, and records relating to any of the Excluded
Liabilities.
"U.S. Excluded Liabilities" means (i) obligations with
respect to checks outstanding as of the Closing, (ii) Income
Taxes, (iii) amounts payable from any other member of the Grace
Group that is not a Surviving Intercompany Account, (iv)
liabilities and obligations with respect to insurance coverage
obtained from, or in conjunction with, Grace or any other member
of the Grace Group, except as otherwise provided in the Insurance
Procedures Agreement, (v) liabilities and obligations with
respect to employee benefit plans and funds maintained by, or in
conjunction with, Grace or any other member of the Grace Group,
except as otherwise provided in the Employee Benefits Agreement,
(vi) liabilities and obligations relating to the deposit,
disposal, storage or placement of any Hazardous Substance at any
facility not used by Seller-U.S. within the 12 month period prior
to the date hereof, and (vii) liabilities arising out of the
introduction into commerce prior to the Closing Date of any
products or materials in violation of the Toxic Substances
Control Act.
AMICON WORLDWIDE PURCHASE AND SALE AGREEMENT
Appendix to Exhibit 9
Description of Real Property
I. A certain parcel of land, with the buildings thereon,
situated on the Northerly side of Cherry Hill Drive
(formerly known as ▇▇▇▇▇▇ Street) in the Town of Danvers,
Essex County, Commonwealth of Massachusetts, and being shown
as Lot 1 on a plan entitled: "PLAN OF LAND in DANVERS,
MASS.", dated December 6, 1977, drawn by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ &
Associates, recorded in Essex South District Registry of
Deeds in Plan Book 147, Plan 71, said Lot 1 being further
described, according to said plan, as follows:
Beginning at a point in the Northerly sideline of said
Cherry Hill Drive and at the Southeasterly corner of said
Lot 1 herein described, thence turning and running
S 63o 18' 10" W by said Cherry Hill Drive, Twenty-One and
14/100 (21.14) Feet to a point in the
Northerly sideline of said Cherry Hill Drive
and at the Southwesterly corner of said Lot 1
herein described and in the Easterly sideline
of a Right of Way; thence turning and running
N 33o 35' 20" W by said Right of Way, One Thousand One
Hundred Seventy-Six and 85/100 (1,176.85)
Feet to a point in the Easterly sideline of
said Right of Way; thence turning and running
By said Right of Way on a curve to the right having a radius of
375.00 feet, a distance
of Two Hundred Nineteen and 84/100 (219.84) Feet
to a point in the Easterly sideline of Said Right
of Way; thence turning and running
N 00o 00' 00" W by said Right of Way, One Thousand Four
Hundred Thirty and 00/100 (1,430.00) Feet to
a point in the Easterly sideline of said
Right of Way; thence turning and running
S 90o 00' 00" E Four Hundred Fifty and 00/100 (450.00) Feet
to a point; thence turning and running
S 00o 00' 00" W Eight Hundred Fifty and 00/100 (850.00) Feet
to a point; thence turning and running
S 90o 00' 00" W Four Hundred Thirty and 00/100 (430.00) Feet
to a point; thence turning and running
S 00o 00' 00" E Five Hundred Eighty and 00/100 (580.00) Feet
to a point; thence turning and running
On a curve to the left having a radius of 355.00 feet, a
distance of Two Hundred Eight and 11/100
(208.11) Feet to a point; and thence turning
and running
S 33o 35' 20" E One Thousand One Hundred Seventy-Nine and
27/100 (1,179.27) Feet to the point of
beginning, said last six measurements being
bounded by land now or formerly of LFE
Corporation.
Subject to and with the benefit of all rights, easements and
obligations as set forth in deed of LFE Corporation to Amicon
Corporation, a Massachusetts Corporation, dated April 14, 1978
and recorded in Essex South Registry of Deeds in Book 6460, Page
391. For title reference see said deed.
II. A certain parcel of land situated on the Northerly side of
▇▇▇▇▇▇ Street in the Town of Danvers, Essex County, Commonwealth
of Massachusetts, and being shown as Lot 5 on a plan entitled:
"Plan of Land in DANVERS, MASS., Property of L.F.E. Corporation
(formerly Laboratory for Electronics)", dated July 14, 1978,
drawn by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, Registered Land
Surveyors, and recorded with Essex South District Registry of
Deeds in Plan Book 149, Plan 86, said Lot 5 being further
described, according to said plan, as follows:
Beginning at a point in the Northerly sideline of said ▇▇▇▇▇▇
Street, said point being at the Southwesterly corner of said Lot
5 herein described, thence running
N 63o 18' 10" E by said ▇▇▇▇▇▇ Street, Twenty and 14/100
(20.14) Feet to a point in the Northerly
sideline of said ▇▇▇▇▇▇ Street, thence
turning and running
N 33o 35' 20" W One Thousand One Hundred Sixty-Nine and
60/100 (1,169.60) Feet to a point; thence
turning and running
On a curve to the right having a radius of 455 feet, a distance
of Two Hundred Fifty-Five and 07/100 (255.07)
Feet to a point; thence turning and running
N 00o 00' 00" E Eight Hundred Seven and 89/100 (807.89) Feet
to a point; thence turning and running
N 90o 00' 00" W Six Hundred Fifty-Nine and 86/100 (659.86)
Feet to a point, said last four bounds being
by Lot 6; thence turning and running
S 34o 31' 20" E One Hundred Twenty-Six and 84/100 (126.84)
Feet to a point; thence turning and running
S 31o 32' 40" E One Hundred Thirty-One and 85/100 (131.85)
Feet to a point; thence turning and running
S 33o 21' 10" E Two Hundred Twenty and 31/100 (220.31) Feet
to a point, said last three measurements
being by land now or formerly of ▇▇▇▇ ▇.
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇; thence turning and
running
N 90o 00' 00" E Three Hundred Ninety-Seven and 88/100
(397.88) Feet to a point; thence turning and
running
S 00o 00' 00" W Four Hundred Seven and 00/100 (407.00) Feet
to a point; thence turning and running
On a curve to the left having a radius of 455 feet, a distance
of Two Hundred Sixty-Six and 74/100 (266.74)
Feet to a point; thence turning and running
S 33o 35' 20" E One Thousand One Hundred Sixty-Seven and
18/100 (1,167.18) Feet to the point of
beginning, said last four measurements being
by Lot 4.
Containing, according to said plan, 5.89 acres of land.
Subject to and with the benefit of all rights, easements and
obligations as set forth in deed of LFE Corporation to Amicon
Corporation, a Massachusetts Corporation, dated October 19, 1978
and recorded in Essex South Registry of Deeds in Book 6530, Page
261; for title reference see said deed.