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Exhibit 10.46
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AMENDMENT NO. 1
TO
ASSET AND SHARE PURCHASE AGREEMENT
BY AND AMONG
SEQUA CORPORATION
MEGTEC SYSTEMS, INC.
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
▇▇▇▇▇▇▇ ENKEL CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇ AB
AND
▇▇▇▇▇▇▇ ASIA PACIFIC CORPORATION
EFFECTIVE DATE - AUGUST 31, 2001
EXECUTION DATE - SEPTEMBER 25, 2001
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AMENDMENT NO. 1
TO
ASSET AND SHARE PURCHASE AGREEMENT
This Amendment No. 1 to Asset and Share Purchase Agreement (the "First
Amendment") is executed this 25th day of September, 2001 and is dated effective
as of the 31st day of August, 2001, is by and among Sequa Corporation, a
Delaware corporation ("Sequa"), MEGTEC Systems, Inc., a Delaware corporation
("MEGTEC"), ▇▇▇▇▇▇▇ Technology Company, Inc., a Delaware corporation ("▇▇▇▇▇▇▇
Technology"), ▇▇▇▇▇▇▇ Enkel Corporation, a Delaware corporation ("▇▇▇▇▇▇▇
Enkel"), ▇▇▇▇▇▇▇ ▇▇▇▇ AB, a Swedish limited liability company ("▇▇▇▇▇▇▇ ▇▇▇▇"),
and ▇▇▇▇▇▇▇ Asia Pacific Corporation, a Delaware corporation ("▇▇▇▇▇▇▇ Asia").
RECITALS
(A) Sequa, MEGTEC, ▇▇▇▇▇▇▇ Technology, ▇▇▇▇▇▇▇ Enkel, ▇▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ Asia (collectively the "Parties") entered into an Asset and Share
Purchase Agreement dated July 20, 2001 (the "Purchase Agreement").
(B) The Parties desire to amend and supplement and by this First
Amendment do hereby amend and supplement the Purchase Agreement as and to the
extent set forth in this First Amendment.
AGREEMENT
NOW, THEREFORE in consideration of the premises and the agreements,
representations, warranties and covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and subject to and upon the terms and conditions of this First
Amendment, the Parties, intending to be legally bound, do hereby agree as
follows:
Article I: GENERAL PROVISIONS
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SECTION 1.01. DEFINITIONS. Terms not otherwise defined in this First
Amendment shall have the meanings ascribed to them by definition in the Purchase
Agreement or in EXHIBIT A thereto.
ARTICLE II: AMENDMENTS TO PURCHASE AGREEMENT
SECTION 2.01. PURCHASED ASSETS. Clause (t) of Section 2.02 of Article
II of the Purchase Agreement is hereby deleted in its entirety.
SECTION 2.02. EXCLUDED ASSETS. Clause (a) of Section 2.03 of Article II
of the Purchase Agreement is hereby amended to read in its entirety as follows:
(a) All cash of ▇▇▇▇▇▇▇ Enkel and ▇▇▇▇▇▇▇ ▇▇▇▇;
SECTION 2.03. EXCLUDED ASSETS. Clause (d) of Section 2.03 of Article II
of the Purchase Agreement is hereby amended to read in its entirety as follows:
(d) All bank accounts and lock boxes of ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Enkel
and those bank guarantees issued on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇ listed in
SCHEDULE 2.03(D);
SECTION 2.04. EXCLUDED ASSETS. Section 2.03 of Article II of the
Purchase Agreement is hereby amended by adding thereto a new clause (m) which
reads in its entirety as follows:
(m) All trade accounts receivable from ▇▇▇▇ Holdings, Inc. and ▇▇▇▇
Graphic Systems, Inc., but not from any other Affiliate of ▇▇▇▇
Holdings, Inc.
SECTION 2.05. EXCLUDED ASSETS. Section 2.03 of Article II of the
Purchase Agreement is hereby amended by adding thereto a new clause (n) which
reads in its entirety as follows:
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(n) All foreign exchange contracts of any of the ▇▇▇▇▇▇▇ Entities,
including any member of the Roll Handling Group, whether relating to
Receivables, Customer Contracts or otherwise as well as any such
foreign exchange contracts listed in any of the Schedules hereto,
including SCHEDULE 6.08.
SECTION 2.06. EXCLUDED LIABILITIES. Section 2.05 of Article II of the
Purchase Agreement is hereby amended by adding thereto new clauses (aa) and (bb)
which respectively read in their entirety as follows:
(aa) All obligations and liabilities relating to or arising out of all
foreign exchange contracts of any of the ▇▇▇▇▇▇▇ Entities, including
any member of the Roll Handling Group, whether relating to Receivables,
Customer Contracts or otherwise, as well as any such foreign exchange
contracts listed in any of the Schedules hereto, including SCHEDULE
6.08.
(bb) All obligations and liabilities relating to or arising out of
those bank guarantees relating to ▇▇▇▇▇▇▇ ▇▇▇▇ listed in SCHEDULE
2.03(d).
SECTION 2.07. TRANSFERRED ASSETS. Section 2.07 of Article II of the
Purchase Agreement is hereby amended by adding thereto a new clause (f) which
reads in its entirety as follows:
(f) All trade accounts receivable, if any, from ▇▇▇▇ Holdings,
Inc. and ▇▇▇▇ Graphic Systems, Inc., but not from any other
Affiliate of ▇▇▇▇ Holdings, Inc.
SECTION 2.08. INDEMNIFIED LIABILITIES. Section 2.11 of Article II of
the Purchase Agreement is hereby amended by adding thereto a new clause (z)
which reads in its entirety as follows:
(z) All obligations and liabilities to any Persons on account of,
arising out of or relating to the cancellation of:
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(i) the License Agreement, dated as of January 31, 1997,
relating to the manufacture, sale and distribution of the
Autoweb Model Nos. 203845 and 233850, between ▇▇▇▇▇▇▇ Enkel
Corporation and ▇▇▇▇▇▇▇ Asia Pacific Limited (a corporation
that was liquidated and all of its rights and obligations
under this agreement were transferred to ▇▇▇▇▇▇▇ Asia Pacific
Corporation);
(ii) the License Agreement, dated as of October 1, 1999,
relating to the manufacture, sale and distribution of SE Zero
Speed Splicers, between ▇▇▇▇▇▇▇ Enkel Corporation and ▇▇▇▇▇▇▇
Asia Pacific Corporation;
(iii) the License Agreement, dated as of January 31, 1997,
relating to the manufacture, sale and distribution of the
Autoweb Model Nos. 203845 and 233850, between ▇▇▇▇▇▇▇ Asia
Pacific Limited (a corporation that was liquidated and all of
its rights and obligations under this agreement were
transferred to ▇▇▇▇▇▇▇ Asia Pacific Corporation) and ▇▇▇▇▇▇▇
Printing Control Equipment (Beijing) Co., Ltd.;
(iv) the License Agreement, dated as of October 1, 1999,
relating to the manufacture, sale and distribution of SE Zero
Speed Splicers, between ▇▇▇▇▇▇▇ Asia Pacific Corporation and
▇▇▇▇▇▇▇ Printing Control Equipment (Beijing) Co., Ltd.;
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(v) the Agreement regarding the licensing of know-how, not
dated, relating to the manufacture, sale and distribution of
zero-speed splicers and autoweb splicers, COV-109
Count-o-Veyors and KANSA stackers, between ▇▇▇▇▇▇▇ Printing
Control Equipment (Beijing) Co., Ltd. and ▇▇▇▇▇▇▇ Printing
Equipment (Shanghai) Company, Ltd.; and
(vi) the Agreement regarding the licensing of the Autoweb,
dated December 22, 1998, between ▇▇▇▇▇▇▇ Printing Control
Equipment (Beijing) Co., Ltd. and ▇▇▇▇▇▇▇ Printing Equipment
(Shanghai) Company, Ltd.
The foregoing constitute the only license agreements by and among any
of the ▇▇▇▇▇▇▇ Entities, on the one hand, and any member of the Roll
Handling Group, on the other hand.
SECTION 2.09. INDEMNIFIED LIABILITIES. Section 2.11 of Article II of
the Purchase Agreement is hereby amended by adding thereto a new clause (aa)
which reads as follows:
(aa) Subject to Section 8.16 hereof, all obligations and liabilities
arising out of or relating to violation of Legal Requirement or
otherwise on account of or relating to Permits required in connection
with any aspect of the lease or occupancy by ▇▇▇▇▇▇▇ Printing of the
Shanghai Facility, including Permits required to be held, obtained or
maintained by the owner of the Shanghai Facility.
SECTION 2.10. PURCHASE PRICE. Section 3.01 of Article III of the
Purchase Agreement is hereby amended to read in its entirety as follows:
SECTION 3.01. PURCHASE PRICE. The purchase price for the Purchased
Assets and the CS Printing Shares shall be an amount equal to the
tangible net book value as of the Closing Time of the
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Inventories, Receivables, Prepaids, Fixed Assets, Retained Cash,
Retained Inventories, Retained Receivables, Retained Prepaids and
Retained Fixed Assets, less Accounts Payable, Accrued Expenses,
Retained Accounts Payable and Retained Accrued Expenses (collectively,
the "Closing Tangible Net Book Value"), plus a fixed premium of One
Million Seven Hundred Thousand Dollars ($1,700,000) (the "Purchase
Price").
SECTION 2.11. PAYMENT OF ESTIMATED PURCHASE PRICE. Section 3.03 of
Article III of the Purchase Agreement is hereby amended to read in its entirety
as follows:
At the Closing, MEGTEC shall pay or cause any Designated Purchaser to
pay to ▇▇▇▇▇▇▇ Enkel, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Asia an estimated
purchase price, in the aggregate, in the amount of Six Million Eight
Hundred Thousand Dollars ($6,800,000) (the "Estimated Purchase Price").
SECTION 2.12. ADJUSTMENT TO ESTIMATED PURCHASE PRICE. The first
sentence of clause (a) of Section 3.04 of Article III of the Purchase Agreement
is hereby amended to read in its entirety as follows:
The Estimated Purchase Price will be subject to a post-Closing
adjustment (a "Purchase Price Adjustment"), up or down, to the extent
the Closing Tangible Net Book Value as of the Closing Time plus a fixed
premium of One Million Seven Hundred Thousand Dollars ($1,700,000) is
more or less than the Estimated Purchase Price.
SECTION 2.13. CLOSING TIME. The first sentence of clause (a) of Section
4.01 of Article IV of the Purchase Agreement is hereby amended to read in its
entirety as follows:
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The closing of the transactions contemplated by this Agreement shall
take place as soon as possible following fulfillment of the conditions
to Closing set forth in this Agreement but in no event later than
September 26, 2001 at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, 101
Park Avenue, New York, New York, or at such other place or date as may
be agreed upon from time to time in writing by ▇▇▇▇▇▇▇ Technology and
MEGTEC (the "Closing Time").
SECTION 2.14. DELIVERIES AT THE CLOSING BY ▇▇▇▇▇▇▇ TECHNOLOGY, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ASIA AND ▇▇▇▇▇▇▇ ENKEL. Subclause (14) of clause (b) of Section
4.01 of Article IV of the Purchase Agreement is hereby deleted in its entirety.
SECTION 2.15. DELIVERIES AT THE CLOSING BY ▇▇▇▇▇▇▇ TECHNOLOGY, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ASIA AND ▇▇▇▇▇▇▇ ENKEL. Clause (b) of Section 4.01 of Article IV
of the Purchase Agreement is hereby amended by adding thereto a new paragraph
which reads in its entirety as follows:
b) At the time of Closing, the Corporate Minute Book and Corporate Seal
for ▇▇▇▇▇▇▇ Printing shall be physically located at the Shanghai
Facility and in the possession of Mr. ▇▇▇▇ ▇▇▇▇ (▇▇▇) Lu.
SECTION 2.16. DELIVERIES AT THE CLOSING BY ▇▇▇▇▇▇▇ TECHNOLOGY, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ASIA AND ▇▇▇▇▇▇▇ ENKEL. Clause (b) of Section 4.01 of Article IV
of the Purchase Agreement is hereby amended by adding thereto a new subclause
(24) which reads in its entirety as follows:
(24) A special opinion from counsel in the Peoples Republic of China
reasonably satisfactory to MEGTEC and MEGTEC's Chinese counsel with
respect to the transfer, if any, of Intellectual Property (i) under the
Shanghai ▇▇▇▇ Quality Agreement or the Memorandum between ▇▇▇▇▇▇▇
Beijing and Shanghai ▇▇▇▇ or (ii) as a result of the
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cancellation and termination of the license agreements referred to in
Section 2.11(z) hereof.
SECTION 2.17. DELIVERIES AT THE CLOSING BY ▇▇▇▇▇▇▇ TECHNOLOGY, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ASIA AND ▇▇▇▇▇▇▇ ENKEL. Clause (b) of Section 4.01 of Article IV
of the Purchase Agreement is hereby amended by adding thereto a new subclause
(25) which reads in its entirety as follows:
(25) An instruction letter in form satisfactory to the Parties and
▇▇▇▇▇▇▇ Amal's bank authorizing certain daily wire transfers of funds
from ▇▇▇▇▇▇▇ Amal's bank account received after the Closing Time to a
bank account of MEGTEC or any Designated Purchaser.
SECTION 2.18. PRODUCT WARRANTY. The last sentence of Section 8.07 of
Article VIII of the Purchase Agreement is hereby amended to read in its entirety
as follows:
Any customer claim to the extent seeking any remedy other than product
repair, return or replacement or product purchase price refund, which
for purposes of this Agreement shall include (i) any liabilities or
obligations for consequential, incidental, liquidated, punitive,
indirect, special and similar damages (as well as lost profits and
other monetary amounts due to customers of the Roll Handling Group)
whether imposed by contract, Legal Requirement or otherwise, for goods
and equipment shipped prior to the Closing Time, or (ii) any extension
by the Roll Handling Group of the warranty periods set forth in
SCHEDULE 6.33(e), shall be Excluded Liabilities or Indemnified
Liabilities and from and after the Closing Time, neither MEGTEC,
MEGTEC's Affiliates, any Designated Purchaser nor ▇▇▇▇▇▇▇ Printing
shall have any obligation or liability whatsoever therefor.
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SECTION 2.19. REMOVAL OF PURCHASED ASSETS FROM THE ROCKFORD FACILITY.
Section 8.11 of Article VIII of the Purchase Agreement is hereby amended by
adding thereto a new clause (e) which reads in its entirety as follows:
(e) Notwithstanding anything in this Agreement to the contrary, ▇▇▇▇▇▇▇
Enkel shall not be required (i) to dismantle crate and otherwise
prepare for shipment any of the office equipment, including, without
limitation, computers and software, and supplies and other related
assets included in the Purchased Assets or (ii) to transfer any
Personal Property Leases included in the Purchased Assets and located
at the Rockford Facility, before such time as ▇▇▇▇▇▇▇ Enkel has
completed all of its undertakings as provided in Section 8.15 hereof.
SECTION 2.20. REMOVAL OF PURCHASED ASSETS FROM THE ROCKFORD FACILITY.
Section 8.12 of Article VIII of the Purchase Agreement is hereby amended by
adding thereto a new clause (g) which reads in its entirety as follows:
(g) ▇▇▇▇▇▇▇ Enkel shall use all commercially reasonable efforts to
retain the services and maintain employment of those employees
designated in SCHEDULE 8.12(g) hereto until the respective dates set
forth in SCHEDULE 8.12(g).
Section 8.12(a) of Article VIII of the Purchase Agreement is hereby
amended by changing the reference to "SCHEDULE 8.12" therein to now read
"SCHEDULE 8.12(a)".
SECTION 2.21. PRODUCTION DRAWINGS. Article VIII of the Purchase
Agreement is hereby amended by adding thereto a new Section 8.15 which reads in
its entirety as follows:
SECTION 8.15. PRODUCTION DRAWINGS. As soon as practicably possible and
in any event no later than October 15, 2001, ▇▇▇▇▇▇▇ Enkel shall, at
its sole cost and expense, to MEGTEC's reasonable
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satisfaction, have converted all CAD production drawings from Accugraph
to Auto CAD with respect to the following products:
(i) Zero Speed Splicer - Model 10;
(ii) Zero Speed Splicer - Model 12; and
(iii) Auto Web Splicers - All Models.
SECTION 2.22. SHANGHAI FACILITY. Article VIII of the Purchase Agreement
is hereby amended by adding thereto a new Section 8.16 which reads in its
entirety as follows:
SECTION 8.16. SHANGHAI FACILITY. (a) Notwithstanding anything to the
contrary in this Agreement or in any Additional Document, from and
after the Closing Time until the earlier of December 31, 2001 or the
date ▇▇▇▇▇▇▇ Printing moves out of the Shanghai Facility, ▇▇▇▇▇▇▇
(Beijing) Printing Control Equipment Co., Ltd. ("▇▇▇▇▇▇▇ Beijing"), an
Affiliate of ▇▇▇▇▇▇▇ Technology, shall be entitled to maintain, at no
cost to any of the ▇▇▇▇▇▇▇ Entities, an office for purposes of receipt
of mail only, at the Shanghai Facility, and (b) if at any time during
the term of the lease which began August 20, 2000 between ▇▇▇▇▇▇▇
Printing and the owner of the Shanghai Facility, pertaining to the
Shanghai Facility, ▇▇▇▇▇▇▇ Printing is required by the owner thereof by
Legal Requirement or otherwise by Legal Requirement to vacate all or
any portion of the Shanghai Facility covered by such lease as a result,
in any such case, of ▇▇▇▇▇▇▇ Printing or the owner of the Shanghai
Facility not having had, as of the Closing Time, either all necessary
Permits and Governmental Approvals or the ability to register legally
the lease in Shanghai, and provided that ▇▇▇▇▇▇▇ Printing has first
made reasonable efforts, without incurring any out of pocket cost or
expense not paid or reimbursed by a ▇▇▇▇▇▇▇ Entity, in cooperation
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with the owner of the Shanghai Facility to register legally the lease
for the Shanghai Facility in accordance with applicable Legal
Requirement, and to obtain any necessary Permits and Government
Approvals, then ▇▇▇▇▇▇▇ Technology will pay to ▇▇▇▇▇▇▇ Printing all
Damages as and when incurred, arising out of or relating thereto
including all reasonable costs and expenses, legal fees and expenses,
costs for permitting, employee wages and remuneration while not
working, relocation, any increase in rent, disassembly and assembly
costs, all legally or contractually required remaining rental payments
for the Shanghai Facility for the remainder of the lease for the
Shanghai Facility, in any such event incurred by ▇▇▇▇▇▇▇ Printing to
relocate its operations performed at the Shanghai Facility to other
premises located in Shanghai, China. In any such case, ▇▇▇▇▇▇▇ Printing
will be responsible for rental payments for square footage, if any, in
excess of that contained in the Shanghai Facility. In connection with
any such move, ▇▇▇▇▇▇▇ Printing will act in a commercially reasonable
manner under the circumstances and taking into account its commitments
with its customers. For the avoidance of doubt, ▇▇▇▇▇▇▇ Technology
shall not be responsible for lost profits of ▇▇▇▇▇▇▇ Printing arising
out of the foregoing.
SECTION 2.23. NO OTHER LIABILITIES. Article VIII of the Purchase
Agreement is hereby amended by adding thereto a new Section 8.17 which reads in
its entirety as follows:
SECTION 8.17. NO OTHER LIABILITIES. As a material inducement to Sequa,
MEGTEC and any Designated Purchaser becoming a Party to this Agreement,
the ▇▇▇▇▇▇▇ Entities hereby jointly and severally, represent and
warrant to Sequa, MEGTEC and any such Designated Purchaser their
respective acknowledgment, understanding and agreement that neither
Sequa, MEGTEC, any Designated Purchaser nor any of their respective
Affiliates have
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assumed or agreed to assume or discharge any liabilities or obligations
of any of the ▇▇▇▇▇▇▇ Entities or their respective Affiliates
associated with or otherwise pertaining to the Purchased Assets, except
as specifically provided in Section 2.04 or 2.11 hereof.
SECTION 2.24. LEGAL OPINIONS. Section 10.11 of Article X of the
Purchase Agreement is hereby amended in its entirety to read as follows:
SECTION 10.11. LEGAL OPINIONS. MEGTEC shall have received the favorable
opinions of counsel for ▇▇▇▇▇▇▇ Technology, ▇▇▇▇▇▇▇ Enkel, ▇▇▇▇▇▇▇ ▇▇▇▇
and ▇▇▇▇▇▇▇ Asia dated as of the Closing in form and substance as set
forth in EXHIBITS X-1, X-2, X-3 AND X-4 hereto.
SECTION 2.25. KEY EMPLOYEES. Section 10.14 of Article X of the Purchase
Agreement is hereby deleted in its entirety.
SECTION 2.26. PRODUCTION DRAWINGS. Section 10.17 of Article X of the
Purchase Agreement is hereby deleted in its entirety.
SECTION 2.27. CERTAIN TRANSFERS TO ▇▇▇▇▇▇▇ PRINTING. Section 10.18 of
Article X of the Purchase Agreement is hereby amended in its entirety to read as
follows:
SECTION 10.18. CERTAIN CANCELLATIONS AND TRANSFERS TO ▇▇▇▇▇▇▇ PRINTING.
▇▇▇▇▇▇▇ Asia and its Affiliates shall have transferred to ▇▇▇▇▇▇▇
Printing, prior to the Closing Time, all of the Retained Receivables,
the Retained Leases and the Retained Customer Contracts not owned by
▇▇▇▇▇▇▇ Printing. All such transfers and assignments shall be in form
and substance reasonably satisfactory to MEGTEC's Chinese counsel. At
or prior to the Closing Time, ▇▇▇▇▇▇▇ Technology will cause the
appropriate ▇▇▇▇▇▇▇ Entities to terminate and cancel the license
agreements referred to in Section
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2.11(z) hereof, provided that such termination and cancellation must
provide that no ▇▇▇▇▇▇▇ Entity (other than ▇▇▇▇▇▇▇ Printing) or any
other Person (other than any of the MEGTEC Entities or any Affiliate of
any MEGTEC Entity) shall have any rights whatsoever on account of the
Intellectual Property or Business IP covered by such licenses or any
other licenses, grants or transfers related to the zero speed or the
autoweb.
SECTION 2.28. DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS.
Section 10.19 of Article X of the Purchase Agreement is hereby amended in its
entirety to read as follows:
SECTION 10.19 DELIVERY AND APPROVAL OF CERTAIN SCHEDULES AND EXHIBITS.
The Parties have agreed, in their respective sole discretion, as to the
form and substance of the Schedules and Exhibits which were delivered
and initialed on the date of the Purchase Agreement as amended by or
added to by the amended Schedules and additional Schedules and amended
Exhibits and additional Exhibits that have been delivered on or before
the date hereof and initialled by and on behalf of the Parties.
SECTION 2.29. LETTER OF CREDIT OR ESCROW OF FUNDS. Article X of the
Purchase Agreement is hereby amended by adding thereto a new Section 10.19A
which reads in its entirety as follows:
SECTION 10.19A LETTER OF CREDIT OR ESCROW OF FUNDS. ▇▇▇▇▇▇▇
Technology shall have delivered, or caused to be delivered by an
Affiliate of ▇▇▇▇▇▇▇ Technology, to MEGTEC Systems Amal AB (the
Designated Purchaser of MEGTEC with respect to ▇▇▇▇▇▇▇ Amal's portion
of the Purchased Assets) either (i) a letter of credit in favor of
MEGTEC Systems Amal AB in form and substance reasonably commercially
satisfactory to MEGTEC Amal in its sole
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discretion in the amount of two hundred fifty thousand dollars
($250,000) and expiring on the date eighteen (18) months after the
Closing Time or (ii) two hundred and fifty thousand dollars ($250,000)
in immediately available funds to be placed and held by MEGTEC Amal in
an interest-bearing escrow account. The delivery of either the letter
of credit or the immediately available funds is for the sole purpose of
securing, at least in part, the reimbursement obligation of ▇▇▇▇▇▇▇
Technology under Section 11.13 hereof and shall only be drawn upon or
disbursed in accordance with Section 11.13 hereof.
SECTION 2.30. LIMITATIONS. Clause (h) of Section 11.05 of Article XI of
the Purchase Agreement is hereby amended by adding thereto a new clause (iii)
which reads in its entirety as follows:
(iii) Notwithstanding anything to the contrary in this
Agreement or in any Schedule or in any Supplement or in any other
Additional Document, none of the individuals listed on Schedule 1.04
shall for any reason whatsoever be deemed to have had, at or prior to
the Closing Time, actual knowledge of any inaccuracy or
misrepresentation in or breach of any of the following representations
and warranties of the ▇▇▇▇▇▇▇ Entities:
(A) Sections 6.22(b), 6.22(c);
(B) Sections 6.23(a), 6.23(b);
(C) Section 6.33(e); and
(D) Section 6.37 as such relates to Sections 6.22(b), 6.22(c),
6.23(a), 6.23(b) and 6.33(e).
In addition with respect to the foregoing provisions of this Section
11.05(h)(iii), only Section 6.33(e) hereof and including SCHEDULE
6.33(e), (1) the right of any MEGTEC Entity to recover Damages
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from any of the ▇▇▇▇▇▇▇ Entities as a result of any such inaccuracy or
misrepresentation or breach shall not be subject to the limitation
contained in clause (e) of Section 11.05 hereof and (2) the amount of
any such Damages shall not be taken into account in determining whether
the MEGTEC Entities collectively have incurred Damages in excess of
Three Hundred Thousand Dollars ($300,000).
SECTION 2.31. SURVIVAL. Clause (A) in the first sentence of Section
11.01 of Article XI of the Purchase Agreement is hereby amended to read in its
entirety as follows:
(A) the representations and warranties contained in Sections 6.19,
6.22, 6.23, 6.33(e) hereof and Section 6.37 hereof as relates to the
foregoing which shall expire five (5) years after the Closing Time.
SECTION 2.32. SPECIAL INTELLECTUAL PROPERTY INDEMNIFICATION BY ▇▇▇▇▇▇▇
TECHNOLOGY, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ASIA AND ▇▇▇▇▇▇▇ ENKEL. Article XI of the
Purchase Agreement is hereby amended by adding thereto a new Section 11.12 which
reads in its entirety as follows:
▇▇▇▇▇▇▇ Technology, ▇▇▇▇▇▇▇ Enkel, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Asia shall,
jointly and severally, defend the MEGTEC Entities against any and all
Proceedings arising from, and shall defend, indemnify and hold harmless
the MEGTEC Entities for, and will pay to the MEGTEC Entities the amount
of, any Damages and lost profits, incurred or suffered, directly or
indirectly, by a MEGTEC Entity as a result of any transfer (whether
voluntary or involuntary, known or unknown) by any of the ▇▇▇▇▇▇▇
Entities or ▇▇▇▇▇▇▇ Printing to either ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ or ▇▇▇▇
Shanghai prior to the Closing Time of any rights, title or interest
(whether ownership, license or otherwise) to any Intellectual Property
or Business IP. The limitations contained in Section 11.05(h) hereof
shall not apply to the foregoing indemnity.
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[SECTION 2.33. SPECIAL REIMBURSEMENT OBLIGATION OF ▇▇▇▇▇▇▇ TECHNOLOGY
FOR PAYMENTS TO KBA. Article XI of the Purchase Agreement is hereby amended by
adding thereto a new Section 11.13 which reads in its entirety as follows:
SECTION 11.13 SPECIAL REIMBURSEMENT OBLIGATION OF ▇▇▇▇▇▇▇ TECHNOLOGY
FOR PAYMENTS TO KBA.
(a) ▇▇▇▇▇▇▇ Technology shall reimburse the Designated Purchaser of
MEGTEC with respect to ▇▇▇▇▇▇▇ Amal's portion of the Purchased Assets,
MEGTEC Amal AB ("MEGTEC Amal"), for all amounts paid (other than for or
in connection with product repair, return or replacement or product
purchase price refund in accordance with Section 8.07 hereof) by MEGTEC
Amal to ▇▇▇▇▇▇ & ▇▇▇▇▇ Aktiengesellschaft ("KBA") pursuant to MEGTEC
Amal's guarantee to KBA of certain of ▇▇▇▇▇▇▇ Amal's obligations
arising under the Basic Contract, dated April 7, 2000, ("Basic
Contract") (all of which are acknowledged and agreed by the Parties to
be Excluded Liabilities for purposes of this Agreement) with KBA for
products manufactured, sold and delivered prior to the Closing Time,
all as provided for in the Letter Agreement dated as of September 25th,
2001 among ▇▇▇▇▇▇▇ Technology, ▇▇▇▇▇▇▇ ▇▇▇▇ and MEGTEC Amal and
acknowledged and agreed to by KBA (the "KBA Letter Agreement") provided
the following procedures are followed:
(i) If MEGTEC Amal or any other MEGTEC Entity is notified by
KBA of a claim by KBA with respect to products manufactured,
sold and delivered by ▇▇▇▇▇▇▇ ▇▇▇▇ prior to the Closing Time,
as soon as reasonably practical thereafter, MEGTEC Amal or
such other MEGTEC Entity shall notify
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▇▇▇▇▇▇▇ Technology and ▇▇▇▇▇▇▇ ▇▇▇▇ in writing of the details
of such claim and, if requested by ▇▇▇▇▇▇▇ Technology or
▇▇▇▇▇▇▇ ▇▇▇▇, shall meet with representatives of ▇▇▇▇▇▇▇
Technology and ▇▇▇▇▇▇▇ ▇▇▇▇ and shall request in writing that
representatives of KBA participate in such meeting in order to
attempt to resolve all disputes with respect to such claim,
the obligation of ▇▇▇▇▇▇▇ ▇▇▇▇ to pay KBA and/or the
obligation of ▇▇▇▇▇▇▇ Technology to reimburse MEGTEC Amal
pursuant to this paragraph (a);
(ii) If either ▇▇▇▇▇▇▇ Technology or ▇▇▇▇▇▇▇ ▇▇▇▇ disputes
either the obligation of ▇▇▇▇▇▇▇ ▇▇▇▇ to pay the claim by KBA
under the Basic Contract or the obligation of ▇▇▇▇▇▇▇
Technology to reimburse MEGTEC Amal pursuant to this paragraph
(a) for MEGTEC's payment to KBA pursuant to the KBA Letter
Agreement, such ▇▇▇▇▇▇▇ Entity shall deliver to MEGTEC Amal
within five (5) days after receiving written notice of such
claim, a written statement in reasonable detail setting forth
the nature of the dispute. The Parties shall use commercially
reasonable efforts to resolve the dispute for a period of ten
(10) days after ▇▇▇▇▇▇▇ Technology or ▇▇▇▇▇▇▇ ▇▇▇▇ shall have
given the notice of dispute to MEGTEC Amal. Thereafter, if
MEGTEC Amal pays such disputed amount to KBA, MEGTEC Amal
shall notify ▇▇▇▇▇▇▇ Technology in writing of its payment to
KBA;
(iii) If the Parties do not reach a final resolution within
ten (10) days after ▇▇▇▇▇▇▇ Technology or ▇▇▇▇▇▇▇ ▇▇▇▇ shall
have given the notice of dispute, and provided that
Proceedings have not been instituted by KBA with respect to
such matter either against a ▇▇▇▇▇▇▇ Entity or a MEGTEC
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Entity, the Parties shall submit the dispute to arbitration
before a mutually acceptable arbitrator, and if MEGTEC Amal
and ▇▇▇▇▇▇▇ Technology are unable so to choose an arbitrator,
the matter shall be submitted before an arbitrator selected in
accordance with the rules of the American Arbitration
Association. The arbitration shall be held in the City of New
York, New York in accordance with, and subject to the rules
of, the American Arbitration Association. The Parties hereto
agree to be bound by the decision of the arbitrator. If the
arbitrator decides in favor of MEGTEC Amal, then MEGTEC Amal
shall be entitled to reimbursement of the amount paid by
MEGTEC Amal to KBA; and
(iv) All fees, costs and expenses of any such arbitration will
be paid by the Party which does not have the arbitration
determined in its favor.
(v) for the avoidance of doubt, if KBA institutes any
Proceedings against any MEGTEC Entity or any ▇▇▇▇▇▇▇ Entity,
the arbitration proceedings referred to in this Section 11.13
shall not proceed during the pendency of the Proceedings
initiated by or on behalf of KBA.
(b) As security, at least in part, for ▇▇▇▇▇▇▇ Technology's
reimbursement obligation provided for in paragraph (a) of this Section
11.13, ▇▇▇▇▇▇▇ Technology shall deliver, or shall cause to be delivered
by an Affiliate of ▇▇▇▇▇▇▇ Technology, at or prior to the Closing Time,
to MEGTEC Amal either (i) a letter of credit to be issued in favor of
MEGTEC Amal in the amount of two hundred fifty thousand dollars
($250,000) and expiring on the date eighteen (18) months after the
Closing Time which shall be in form satisfactory to
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MEGTEC Amal in its sole discretion or (ii) two hundred fifty thousand
dollars ($250,000) in immediately available funds which shall be placed
and held by MEGTEC Amal in an interest-bearing escrow account. MEGTEC
Amal will accept delivery of the letter of credit which shall be in
form reasonably commercially satisfactory to MEGTEC Amal in its sole
discretion or accept delivery of and hold in escrow the funds, as the
case may be, for the sole purpose of securing, at least in part, such
reimbursement obligation of ▇▇▇▇▇▇▇ Technology and, in the case of a
letter of credit, the letter of credit shall be drawn upon or, in the
case of funds, the funds shall be disbursed, only in accordance with
paragraph (a) of this Section 11.13. If funds are delivered to MEGTEC
Amal and for so long as such funds are held in escrow by MEGTEC Amal,
such funds shall be invested by MEGTEC Amal in direct obligations of
the United States government, none of which obligations shall have a
maturity of more than ninety (90) days from the date the investment is
made therein, and MEGTEC Amal shall receive and collect and hold in
escrow all sums payable in connection with any such investment and
reinvestment and shall reinvest all such sums. All interest and gains
received by MEGTEC Amal as a result of any such investment or
reinvestment shall be added to the funds held by MEGTEC Amal hereunder.
If ▇▇▇▇▇▇▇ Technology shall have delivered funds to MEGTEC Amal as
provided in this paragraph (b), ▇▇▇▇▇▇▇ Technology shall have the right
at any time to deliver to MEGTEC Systems a letter of credit issued in
favor of MEGTEC Amal which shall be in form reasonably commercially
satisfactory to MEGTEC Amal in its sole discretion in the maximum
amount equal to the funds then held in escrow by MEGTEC Amal and
expiring on the date eighteen (18) months after the Closing Time in
substitution of such funds and, in such event, MEGTEC Amal shall
redeliver all such funds to ▇▇▇▇▇▇▇ Technology and shall thereafter
have the right
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to draw on such letter of credit in accordance with paragraph (a) of
this Section 11.13.
(c) for the avoidance of doubt all payments due KBA under the Basic
Contract pursuant to the Side Letter Agreement and covered by the
reimbursement obligation provided for in paragraph (a) of this Section
11.13, shall, in the first instance, be paid directly by ▇▇▇▇▇▇▇
Technology to KBA, and, if not so paid, then payment shall be made from
the escrowed funds or a draw on the letter of credit as applicable.
(d) the dollar limitations referred to in this Section 11.13 shall not
limit or modify the obligations of the ▇▇▇▇▇▇▇ Entities with respect to
the foregoing matters being an Excluded Liability.
SECTION 2.34. TERMINATION BY ▇▇▇▇▇▇▇ TECHNOLOGY, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
ASIA OR ▇▇▇▇▇▇▇ ENKEL. Clause (a) of Section 12.02 is hereby amended to read in
its entirety as follows:
(a) the Closing has not occurred (other than through the failure of
▇▇▇▇▇▇▇ Technology, ▇▇▇▇▇▇▇ Enkel, ▇▇▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇ Asia to
comply with any of its obligations under this Agreement) on or before
September 26, 2001, or such later date as the parties may agree upon
five (5) Business Days after such expiration or termination (such date
the "Extended Closing Time"):
SECTION 2.35. TERMINATION BY MEGTEC. Clause (a) of Section 12.03 is
hereby amended to read in its entirety as follows:
(a) the Closing has not occurred (other than through the failure of
Sequa or MEGTEC to comply with any of its obligations under this
Agreement) on or before September 26, 2001 or the Extended
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Closing Time;
SECTION 2.36. INTERPRETATION. Section 13.11 of Article XIII of the
Agreement is hereby amended by adding thereto a new sentence which reads in its
entirety as follows:
Notwithstanding anything in this Agreement or in any Additional
Document to the contrary, in the case of any conflict between the terms
and conditions of this Agreement and the terms and conditions of any
Additional Document, the terms and conditions of this Agreement shall
govern.
SECTION 2.37. AMENDMENT OF CERTAIN EXHIBITS. Exhibits B and C to the
Purchase Agreement are hereby amended in their entirety to read as set forth in
Exhibits B and C, attached to this First Amendment.
ARTICLE III: OTHER AGREEMENTS
SECTION 3.01. DESIGNATED PURCHASER. The parties agree that MEGTEC has
designated MEGTEC Systems Amal AB, a Swedish limited liability company ("MEGTEC
Amal") as a Designated Purchaser to purchase all of the Purchased Assets owned
by ▇▇▇▇▇▇▇ ▇▇▇▇ and to assume and thereafter pay, perform or discharge all of
the Assumed Liabilities of ▇▇▇▇▇▇▇ ▇▇▇▇, all as provided for in the Purchase
Agreement.
SECTION 3.02. PAYMENT OF SEVERANCE. ▇▇▇▇▇▇▇ Enkel hereby represents and
warrants to the MEGTEC Entities that, except as set forth in those employment
agreements and severance agreements listed in SCHEDULE 6.25(a) to the Purchase
Agreement, it is the policy of ▇▇▇▇▇▇▇ Enkel not to pay severance to employees
who voluntarily terminate their employment. ▇▇▇▇▇▇▇ Enkel agrees to continue to
adhere to such policy and thereby, except as set forth in said employment
agreements and severance agreements, not make any severance
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payment to any employee of ▇▇▇▇▇▇▇ Enkel who voluntarily terminates his or her
employment with ▇▇▇▇▇▇▇ Enkel before such time as ▇▇▇▇▇▇▇ Enkel has completed
all of its undertakings as provided in Sections 8.11 and 8.15 of the Purchase
Agreement.
ARTICLE IV: NO OTHER CHANGES
SECTION 4.01. NO OTHER CHANGES. Except as amended or supplemented by
this First Amendment all of the terms and provisions of the Purchase Agreement
are hereby ratified and remain in full force and effect.
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IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment
to be executed as of the day and year first above written.
SEQUA CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MEGTEC SYSTEMS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ ENKEL CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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▇▇▇▇▇▇▇ ▇▇▇▇ AB
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ ASIA PACIFIC CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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MEGTEC Systems Amal AB, a Swedish limited liability company ("MEGTEC Amal"),
acknowledges and agrees that is has been designated by MEGTEC Systems, Inc.
("MEGTEC") as the Designated Purchaser to purchase all of the Purchased Assets
owned by ▇▇▇▇▇▇▇ ▇▇▇▇ AB ("▇▇▇▇▇▇▇ ▇▇▇▇") and to assume and thereafter pay,
perform or discharge all of the Assumed Obligations of ▇▇▇▇▇▇▇ ▇▇▇▇ and agrees
to be bound by all of the terms and provisions of the Agreement and to accept
delivery of all of such Purchased Assets and to assume and thereafter pay,
perform or discharge all of such Assumed Obligations.
MEGTEC SYSTEMS AMAL AB
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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