EXHIBIT 2.2
AMENDMENT DATED APRIL 24, 2002
TO
STOCK PURCHASE AGREEMENT
DATED FEBRUARY 14, 0000
XXXXXX XXXXXX FILTER CORPORATION, a Delaware corporation ("USF"), and
PALL CORPORATION, a New York corporation ("Buyer"), hereby agree that the Stock
Purchase Agreement between them dated February 14, 2002 (the "SPA") is hereby
amended and supplemented as set forth in the numbered paragraphs below. Words
and terms used herein with initial or solid capital letters and not defined
herein are being used herein as defined in the SPA.
WHEREAS, the parties desire the Closing to take place on April 24,
2002, and
WHEREAS, certain matters remain to be completed pursuant to or
connection with the SPA which cannot be completed by that date and the parties
are willing to close nonetheless on the basis that the matters remaining to be
completed will be completed as promptly as practicable after the Closing and in
any event within the specific time parameters and on the terms and conditions
set forth below, and
WHEREAS, the parties desire to make certain other changes in the SPA
as set forth below,
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein, USF and Buyer, each intending to be legally bound,
hereby agree that the SPA is hereby amended and supplemented as follows:
ss. 1. Purchase Price Adjustment
Solely for the purpose of the determination of Closing Date Adjusted
Net Assets for the Purchase Price Adjustment provided for in Section 2.3 of the
SPA, the Closing Date shall be deemed
to have been April 27, 2002 notwithstanding that the Closing takes place prior
to that date, provided, however, that any transactions made by any Member after
the Closing and prior to April 28, 2002 which (i) are not either in the ordinary
course of business or made pursuant to any agreement in effect at the conclusion
of the Closing and (ii) reduce Closing Date Adjusted Net Assets shall be
disregarded in the determination of Closing Date Adjusted Net Assets as of April
27, 2002.
ss. 2. Mortgage Lien on Bazet Property
Reference is made to the mortgage lien now known to exist on the
property in Bazet, France owned by Exekia, one of the Members, in the
approximate amount of 300,000 Euros. It appears from the records of the
Registrar of Mortgages ("Bureau des Hypotheques") that a mortgage originally
made in 1989 was renewed in December 1998, after the purchase of the property by
Exekia, for a term of ten years and is now a recorded lien on the property.
From the Closing Date until October 24, 2002 (the "Exclusive Period"),
USF shall have the exclusive right to endeavor to have the mortgage lien removed
from the property and discharged of record. If so requested by USF, Buyer shall
cause the Member which is the owner of the mortgaged property to give to USF, or
any Person designated by USF, a power of attorney authorizing such Person to act
on behalf of such Member in connection with the removal and discharge of the
mortgage lien and shall cause the Members to cooperate with USF in such efforts.
USF may at its discretion cause the mortgage lien to be removed and discharged
by making a deposit in escrow, in which event if, subsequent to the release and
discharge of the mortgage lien, the escrowed amount is returned to USF or the
attorney-in-fact, USF shall be entitled to retain the same. If by the end of the
Exclusive Period USF has not effected the removal and discharge of the mortgage
lien and furnished to Buyer proof thereof, USF shall promptly furnish to Buyer a
description of the steps which USF has taken to cause the lien to be released
and discharged together with all documents generated during that process.
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Following the end of the Exclusive Period, Buyer shall have the right to take
such commercially reasonable steps as Buyer in its sole discretion deems
appropriate (which shall include the use of any escrowed funds if available) to
have the lien released and discharged and USF shall, promptly after demand,
reimburse Buyer for the amount reasonably expended by Buyer to obtain such
release and discharge, including but not limited to any amount paid to the
holder of the mortgage lien and the fees and expenses of counsel. If USF shall
not make payment of the amount covered by the foregoing indemnification within
15 days after Buyer has made demand therefor and furnished to USF appropriate
evidence of the amount expended by Buyer, then the indemnification by USF shall
also cover legal fees and expenses incurred by Buyer in collecting from USF
and/or from the Guarantor of the SPA the amount to which the Buyer is entitled
pursuant to the foregoing indemnification. The mortgage lien shall have no
effect on the computation of Closing Date Adjusted Net Assets.
ss. 3. Patent and Trademark Material
Reference is made to the patents identified in Appendix II to the SPA
(the "Patents") and the trademarks identified in Appendix III (the
"Trademarks"). All "Material" (as defined in the next sentence) which is in the
possession or under the control of USF (excluding Members of the Group)
immediately prior to the Closing shall be shipped by USF to Xxxxxxx Xxxxxxx at
Pall Corporation, 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, XX 00000 for arrival not
later than May 8, 2002. As used in this paragraph, "Material" means all
informational material in written or other tangible form, including any computer
database and/or disks, specifically relating to the Patents and/or the
Trademarks. USF shall cooperate with Buyer in facilitating delivery to Buyer of
such Material in the possession or under the control of Members of the Group.
USF shall also cooperate with Buyer in assisting Buyer in answering any
questions which arise with respect to the ownership of any IP of the Members.
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ss. 4. Ownership of USF Filtration Pty Limited
With respect to the acquisition in December 1997 of the shares of USF
Filtration Pty Limited (then known as Memtec Limited) by USFC Acquisition, Inc.,
as part of which there was "compulsory acquisition" (as the term is used in
Australian law and practice) of certain remaining shares of the acquired
company, the original register of members has not been found. A register
prepared recently by USF with an entry dated 3 April 2002 has been furnished by
USF to Buyer but that does not completely eliminate the possibility that there
may have been some minority shares of Memtec Limited not acquired by USFC
Acquisition, Inc. For the avoidance of doubt, USF shall execute and deliver, as
a condition to the Closing, a letter in the form of Attachment A hereto.
ss. 5. Leased Vehicles
Reference is made to the vehicles (e.g., automobiles and trucks) leased
to USF Filtration Pty Limited ("USFF"), which is a Member, but used exclusively
by USF Affiliates which are not Members (the "Leased Vehicles"). The leases
covering the Leased Vehicles (the "Leases") have been assigned in whole or in
part to USF Affiliates by USFF but the assignments, on the lessors' forms, do
not release USFF with respect to the Leased Vehicles. Accordingly, USF hereby
indemnifies Buyer and USFF, jointly and severally, against all Losses arising
under the Leases in respect of the Leased Vehicles and/or from use of the Leased
Vehicles, irrespective whether such Losses occurred or use took place before the
Closing or occur or takes place after the Closing, including without limitation
claims by third parties alleged to have arisen from use of the Leased Vehicles.
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ss. 6. Indemnification Not Limited
The indemnification by USF provided for in Sections 2 and 5 hereof and
in Attachment A and Attachment B hereto shall not be subject to the limitations
provided for in the first sentence of the last paragraph of Section 8.2(a) of
the SPA.
ss. 7. Additional Stock Ownership
For the avoidance of doubt with respect to certain stock ownership, USF
shall execute and deliver, as a condition to closing, a letter in the form of
Attachment B hereto.
ss. 8. Certain Obligations
The debt obligations of SeitzSchenk Filtersystems GmbH under that
certain loan agreement dated December 28, 2001 with Dresdener Bank shall be
taken into account in the computation of Closing Date Adjusted Net Assets and
the pension obligation of SeitzSchenk Filtersystems GmbH with respect to Xx.
Xxxxxx Xxxxxx shall be taken into account in the computation of Closing Date Net
Assets to the extent consistent with the prior treatment of such pension
obligations.
ss. 9. SPA Reaffirmed
Except as amended and supplemented hereby, the SPA remains in full
force and effect in accordance with its terms.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
UNITED STATES FILTER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
PALL CORPORATION
By: /s/ Xxxxxx Xxxxxxx-Surry
-------------------------
Name: Xxxxxx Xxxxxxx-Surry
Title: President
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Attachment A
24 April 2002
Pall Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Re: Acquisition by Pall Corporation of USFC Acquisition, Inc.
---------------------------------------------------------
Dear Sirs:
This letter serves to confirm to Pall Corporation that:
(a) all transfers of shares in USF Filtration Pty Limited to USFC
Acquisition, Inc., under the takeover by USFC Acquisition, Inc.
in December 1997 and subsequent compulsory acquisition of the
remaining shares in Memtec Limited (as USF Filtration Pty Limited
was then known) have been duly registered;
(b) the "REGISTER OF MEMBERS" sent by us to Pall Corporation with an
entry dated 3 April 2002, showing 12,185,667 Ordinary Shares as
owned by USFC Acquisition, Inc., is the only register of members
of USF Filtration Pty Limited;
(c) all the shares in USF Filtration Pty Limited are held
beneficially, as well as legally, by USFC Acquisition, Inc.;
(d) United States Filter Corporation indemnifies and holds Pall
Corporation harmless against any "Losses" (as defined in said
Stock Purchase Agreement dated as of February 14, 2002 by and
between Pall Corporation and United States Filter Corporation)
Pall Corporation may suffer or incur as a result of (a), (b) and
(c) not being correct and will cooperate fully with Pall with
respect to questions or issues raised by third parties relating
to any such Losses.
UNITED STATES FILTER CORPORATION
By: ___________________________
Name:
Title:
Attachment B
24 April, 2002
Pall Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Re: Acquisition by Pall Corporation of USFC Acquisition Inc.
--------------------------------------------------------
Dear Sirs:
This letter serves to confirm to Pall Corporation that:
(a) all transfers of shares in each of Allosep, Inc., Memtec Finance,
Inc., Xxxxxx Filter Systems, Inc. and USF Filtration and
Separations Group, Inc. (each, a "U.S. Company" and together, the
"U.S. Companies") have been duly recorded in the stock ledger of
the respective U.S. Company;
(b) all the shares in the U.S. Companies are held beneficially, as
well as legally, by USFC Acquisition Inc. or a wholly owned
Subsidiary thereof;
(c) S.O.D.I.A.C. S.A. is a predecessor to USF Filtration SAS and that
the real property located at 000 Xxx X. Xxxxx 0000, Xxxxxxxx,
Xxxxxx registered in the name of S.O.D.I.A.C. S.A. is owned by
USF Filtration SAS; and
(d) United States Filter Corporation will indemnify and hold Pall
Corporation harmless against any "Losses" (as defined in that
certain Stock Purchase Agreement dated as of February 14, 2002 by
and between Pall Corporation and United States Filter
Corporation) that Pall Corporation may suffer or incur as a
result of (a), (b) and (c) not being correct and will cooperate
fully with Pall Corporation with respect to questions or issues
raised by third parties relating to any such Losses.
UNITED STATES FILTER CORPORATION
By: ___________________________
Name:
Title:
