Exhibit 4(b)
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AMENDMENT NUMBER ONE TO THE STANDSTILL AGREEMENT
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by and among
VWR CORPORATION,
EM INDUSTRIES, INCORPORATED
and
EM LABORATORIES, INCORPORATED
September 15, 1995
AMENDMENT NUMBER ONE TO THE STANDSTILL AGREEMENT
This Amendment Number One to the Standstill Agreement (the
"Amendment") made this 15th day of September, 1995 by and among VWR Corporation
("VWR"), a Pennsylvania corporation, EM Industries, Incorporated ("EMI"), a New
York corporation, and EM Laboratories, Incorporated ("EM Laboratories"), a New
York corporation,
W I T N E S S E T H:
WHEREAS, EMI and VWR entered into a Standstill Agreement dated
February 27, 1995 (the "Standstill Agreement");
WHEREAS, pursuant to an Assignment and Assumption Agreement dated
April 13, 1995, and in conformity with Section 10.4 of the Standstill Agreement,
EMI assigned its rights and delegated its duties and obligations under the
Standstill Agreement to EM Laboratories and EM Laboratories accepted such
assignment and delegation; and WHEREAS, accordingly, all references to EMI in
the Standstill Agreement refer to EM Laboratories as assignee as well as to EMI,
and EMI and EM Laboratories are jointly and severally liable for the performance
of the obligations of EM Laboratories under the Standstill Agreement;
WHEREAS, Section 10.5 of the Standstill Agreement provides that the
Standstill Agreement may be amended by a written agreement signed by VWR and
EMI; and
WHEREAS, VWR, EMI and EM Laboratories have agreed to amend the
Standstill Agreement as provided herein,
NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, and for other good and valuable consideration, the
parties agree that the Standstill Agreement shall be amended as of the date
hereof as follows:
SECTION. I. To the Recitals there shall be added Recital D, which shall read in
its entirety as follows:
"D. Company and EMI have entered into a Common Share and Debenture
Purchase Agreement dated May 24, 1995, pursuant to which, among other
things, Company shall issue and sell to EMI additional Common Stock (as
defined below) of Company and a subordinated debenture (the
'Debenture')."
SECTION II. To Article 1 there shall be added the following sentence, which
shall be set forth immediately after the caption "DEFINITIONS":
"Capitalized terms used but not defined herein shall have the meaning set
forth, as the case may be, in the Common Share and Warrant Purchase
Agreement (as
defined below) or the Common Share and Debenture Purchase Agreement (as
defined below)."
SECTION III. To Article 1 there shall be added the following definitions, the
other sections of Article 1 being renumbered accordingly, which new definitions
shall read in their entirety as follows:
"1.3. Agreement. 'Agreement' means this Standstill Agreement, as it may
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be from time to time modified, amended, altered or supplemented by written
agreement of the parties as provided in Section 10.5."
"1.10. Common Share and Debenture Purchase Agreement. 'Common Share and
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Debenture Purchase Agreement' means the Common Share and Debenture Purchase
Agreement, dated May 24, 1995, between Company and EMI."
"1.31. Second Closing Date. 'Second Closing Date' means the date the
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acquisition of the Common Stock and Debenture by Purchaser is consummated
pursuant to the terms of the Common Share and Debenture Purchase
Agreement."
SECTION IV. Section 1.10 of the Agreement shall be renumbered Section 1.12
shall be amended to read, in its entirety, as follows:
"1.12. Common Stock Equivalents. 'Common Stock Equivalents' means the sum
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of the following, determined at any time during the term of this Agreement:
(a) the total number of shares of issued and outstanding Common Stock, plus
(b) the number of votes which may be cast for the election of directors
(whether directly or by formula) as a result of ownership of any Voting
Securities other than Common Stock; provided, however, that the votes
described in (b) above shall not be included in Common Stock Equivalents
until the Voting Securities other than Common Stock are able to be voted
for the election of directors."
SECTION V. The second sentence of Section 2.2 shall be amended to read in its
entirety as follows:
"The 'Percentage Limitation' shall be 49.89% of the Common Stock
Equivalents."
SECTION VI. Section 2.7(e) shall be amended to read in its entirety as
follows:
"(e) If Company does not elect to purchase shares from Purchaser, or
elects to purchase only a portion of the shares under Section 2.7(b),
Purchaser shall be entitled to retain the shares over the Percentage
Limitation but the Percentage Limitation shall remain 49.89%."
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SECTION VII. Section 2.10 shall be amended to read in its entirety as follows:
"2.10 Requirements for Tender Offers. Whenever Purchaser shall make a
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tender offer for shares of Common Stock under Section 2.9:
"(a) Purchaser shall not commence any such tender offer unless acceptance
of Purchaser's offer shall have been recommended to the shareholders by a
majority vote of the Unaffiliated Directors; and
"(b) Purchaser may not close the acquisition of the tendered shares
unless all of the following requirements have been satisfied:
"(i) Purchaser's offer shall have been made to all holders of
Common Stock;
"(ii) Purchaser shall offer to purchase for cash all shares
tendered; and
"(iii) Purchaser's offer shall have been accepted by shareholders
owning not less than a majority of the outstanding Common Stock.
"(c) With respect to calculating whether Purchaser's offer has been
accepted by shareholders owning a majority of the outstanding Common Stock,
Common Shares beneficially owned by Purchaser shall be excluded from the
outstanding Common Stock."
SECTION VIII. Section 4.1(a) shall be amended so that the legend set forth
therein shall read in its entirety as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW AND ARE SUBJECT TO THE RESTRICTIONS ON DISPOSITION SET FORTH IN AND TO
THE OTHER PROVISIONS OF A COMMON SHARE AND WARRANTY PURCHASE AGREEMENT,
DATED FEBRUARY 27, 1995, BETWEEN VWR CORPORATION AND EM INDUSTRIES,
INCORPORATED, AND A COMMON SHARE AND DEBENTURE PURCHASE AGREEMENT, DATED
MAY 24, 1995, BETWEEN VWR CORPORATION AND EM INDUSTRIES, INCORPORATED, AND
A STANDSTILL AGREEMENT, DATED FEBRUARY 27, 1995, BETWEEN VWR CORPORATION
AND EM INDUSTRIES, INCORPORATED, AS AMENDED ON SEPTEMBER 15, 1995. COPIES
OF SUCH AGREEMENTS ARE ON FILE AT THE RESPECTIVE OFFICES OF VWR CORPORATION
AND EM INDUSTRIES INCORPORATED."
SECTION IX. Section 6.1 shall be amended to read in its entirety as follows:
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"6.1. Size of Board; Proportionate Representation. A. On or before the
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Second Closing Date, the Company shall take all requisite action, including
without limitation increasing or decreasing the number of seats on the
Board, to grant EMI the right, at EMI's option, to nominate such number of
directors to the Board as shall ensure that EMI shall have the right to
maintain Board representation at all times commensurate with the aggregate
proportion of Common Shares owned by EMI and its Affiliates.
"B. At any time when EMI shall exercise its option to appoint directors,
as described in paragraph (a) above, the Company shall take all requisite
action to cause the election, effective immediately, of the individuals
designated by EMI to fill the number of seats on the Board that shall be
proportionate to the aggregate Common Share ownership of EMI and its
Affiliates."
SECTION X. Section 6.2 shall be amended to read in its entirety as follows:
"6.2 Terms. EMI shall advise Company as necessary, from time to time,
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which of the Affiliated Directors shall have a term expiring at the second
annual meeting of shareholders of Company next following the Second Closing
Date, and which shall have a term expiring at the third such annual
meeting. After the term of any Affiliated Director expires, his or her
successor shall serve a term of three (3) years as provided in the Restated
Articles of Incorporation of Company."
SECTION XI. Section 8.1(a) shall be amended to read in its entirety as
follows:
"(a) Purchaser's completion of a tender offer in accordance with Section
2.10, provided, that Purchaser's offer shall have been recommended to the
shareholders by a majority vote of the Unaffiliated Directors and shall
have been accepted by shareholders owning not less than a majority of the
outstanding Common Stock, as provided in such Section; or".
SECTION XII. The proviso set forth in the second sentence of Section 10.4
shall be amended to read in its entirety as follows:
". . . provided, however, that EMI may assign its rights and delegate its
duties and obligations under this Agreement without such consent to an
Affiliate of EMI, which Affiliate (referred to herein as the "Assignee")
may, following duly authorized execution and delivery of an agreement
assuming the obligations of EMI hereunder reasonably satisfactory to
Company, accept title to the Shares and/or Warrant Shares."
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SECTION XIII. This Amendment shall be exclusively governed by, construed in
accordance with, and interpreted according to the substantive law of the
Commonwealth of Pennsylvania without giving effect to the principles of conflict
of laws.
SECTION XIV. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, VWR, EMI and EM Laboratories have caused this
Amendment to be executed on the date first above written.
VWR CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
EM INDUSTRIES, INCORPORATED
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
Title:
EM LABORATORIES, INCORPORATED
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
Title:
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