AMENDMENT NO. 2 TO
PURCHASE AGREEMENT
THIS AMENDMENT NO. 2, dated as of May 18, 2001 (this "Amendment"), to
Purchase Agreement, dated as of July 7, 2000 (the "Purchase Agreement"), by
and among Viskase Companies, Inc., a Delaware corporation ("Parent"), Viskase
Corporation, a Pennsylvania corporation ("Viskase"), Viskase Holding
Corporation, a Delaware corporation ("US Holdings"), Viskase Sales
Corporation, a Delaware corporation ("Sales"), Viskase Europe Limited, a
company organized under the laws of the United Kingdom ("Europe"), Viskase
S.A., a company organized under the laws of France ("Viskase France"),
Viskase Limited, a company organized under the laws of the United Kingdom
("UK"), Viskase Canada Inc., a company organized under the laws of Ontario
("Canada"), and Viskase Ireland Limited, a company organized under the laws
of Ireland ("Ireland") (Parent, Viskase, US Holdings, Sales, Europe, Viskase
France, UK, Canada and Ireland are each referred to herein individually as
"Seller" and collectively as "Sellers"), and Xxxxx Company, Inc., a Missouri
corporation ("Buyer").
W I T N E S E T H:
WHEREAS, Buyer and Sellers have previously entered into the Purchase
Agreement; and
WHEREAS, in order to set forth certain mutual agreements with respect
to the Purchase Agreement and to resolve certain disagreements with respect
to the definitive Valuation Date Statement, the parties desire to enter into
this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. In this Amendment, unless the context shall
otherwise require, a term defined in the Purchase Agreement has the same
meaning when used in this Amendment and a term defined anywhere in this
Amendment has the same meaning throughout.
1.2. Interpretation. Each definition in this Amendment includes the
singular and the plural, and reference to the neuter gender includes the
masculine and feminine where appropriate. References to any statute or
regulation means such statute or regulation as amended at the time and
include any successor legislation or regulations. The heading to the
Articles and Sections are for convenience of reference and shall not affect
the meaning or interpretation of this Amendment. Except as otherwise stated,
reference to Articles, Sections and Schedules mean the Articles, Sections and
Schedules of this Amendment.
ARTICLE II
EMPLOYEE MATTERS
2.1. Workers' Compensation. (a) The following provisions shall be
added to the end of Section 8.3(i) of the Purchase Agreement:
Sellers will remain responsible for all workers' compensation
claims made by Affected Employees based on an injury occurring
prior to the Closing Date, provided that (i) a written record
of such injury existed in the employee's files prior to May 14,
2001 or the employee filed a claim regarding such injury with
an appropriate Governmental Body prior to May 14, 2001, (ii) no
aggravation of the injury has occurred on or after the Closing
Date and (iii) the claim is approved on or prior to December 31,
2001. Except as provided in the preceding sentence, Buyer will be
responsible for all workers' compensation claims made by Affected
Employees. It is understood that Sellers will remain responsible for
all workers' compensation claims made by employees of the Business
(other than Affected Employees) based on an injury occurring prior to
the Closing Date.
(b) The parties agree that, as a result of Section 2.1(a) of
this Amendment, (i) the original accrual of $179,599 by Parent in its letter
dated November 9, 2000, (ii) the revised accrual of $259,000 by Buyer in its
letter dated January 5, 2001 and (iii) the additional accrual of $364,000 by
Buyer in its letter dated January 5, 2001 are not necessary and will be
eliminated in determining the definitive Valuation Date Statement pursuant to
Section 3.2 of the Purchase Agreement. The parties hereby further agree that
the definitive Valuation Date Statement will not include any liability,
reserve or accrual for workers' compensation claims.
2.2. Employee Claims in Brazil. (a) Schedule 2.3(d) to the Purchase
Agreement shall be deleted in its entirety and replaced by Schedule 2.3(d) to
this Amendment.
(b) Schedule 2.4 to the Purchase Agreement shall be amended by
adding the claims and proceedings listed in Schedule 2.4 to this Amendment.
(c) The parties agree that, as a result of Sections 2.2(a) and
(b) of this Amendment, the accrual of $757,000 by Buyer in its letter dated
January 5, 2001 is not necessary and will be eliminated in determining the
definitive Valuation Date Statement pursuant to Section 3.2 of the Purchase
Agreement. Buyer further agrees that the definitive Valuation Date Statement
will not include any liability, reserve or accrual related to claims and/or
lawsuits by employees in Brazil.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
3.2. Entire Agreement. With respect to the subject matter hereof,
this Amendment shall supersede anything to the contrary contained in the
Purchase Agreement.
3.3. Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such provision shall be ineffective to the extent, but only
to the extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or unenforceable
provision or provisions or any other provisions hereof, unless such a
construction would be unreasonable.
3.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts
of law provisions) of the State of Illinois (without regard to the conflicts
of law provisions thereof), except to the extent that the application of
substantive laws of the United States or another jurisdiction is mandatory.
3.5. Waiver. Any term or provision of this Amendment may be waived,
or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Amendment if, as to any
party, it is authorized in writing by an authorized representative of such
party. The failure of any party hereto to enforce at any time any provision
of this Amendment shall not be construed to be a waiver of such provision,
nor in any way to affect the validity of this Amendment or any part hereof or
the right of any party thereafter to enforce each and every such provision.
No waiver of any breach of this Amendment shall be held to constitute a
waiver of any other or subsequent breach.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first above written.
VISKASE COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE SALES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE EUROPE LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE S.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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VISKASE IRELAND LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX COMPANY, INC.
By: /s/
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Name:
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Title:
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Schedule 2.3(d)
Litigation and Claims
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* United States Department of Labor Investigation regarding Xxxxxx Xxxxxx, a
former employee at the Pauls Valley, Oklahoma plant, to the extent the
Department of Labor requires the reinstatement of employment of Xxxxxx
Xxxxxx at the Pauls Valley, Oklahoma facility.
* In accordance with the Licensed Patents License Agreement, Buyer will
assume defense of, and be responsible for, certain liabilities with respect
to the Pechiney Plastic Packaging, Inc. and Pechiney Emballage Flexible
Europe v. Viskase Companies, Inc. and Viskase Corporation, No. 0-C-0280
(the "Xxxxxxx Litigation").
Schedule 2.4
Excluded Liabilities
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ADDITION TO SCHEDULE 2.4:
The claims outstanding relating to the Brazilian operations described in the
attached summary.
