SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)1
VWR CORPORATION
______________________________________________________
(Name of issuer)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of class of securities)
918435 10 8
_____________________________________________________
(CUSIP number)
KLAUS H. JANDER, ESQ.
Rogers & Wells
200 Park Avenue
New York, New York 10166
(212) 878-8001
____________________________________________________
(Name, address and telephone number of person
authorized to receive notices and communications)
MAY 24, 1995
____________________________________________________
(Date of event which requires filing of this statement)
If the filing person has previously filed a
statement on Schedule 13G to report the acquisition which
is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the
following box /_/.
Check the following box if a fee is being paid
with the statement /_/. (A fee is not required only if
the reporting person (1) has a previous statement on file
reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2)
has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note. Six copies of this statement, including
all exhibits, should be filed with the Commission. See
Rule 13d-1 (a) for other parties to whom copies are to be
sent.
(Continued on following pages)
(Page 1 of 5 Pages)
__________________________
1 The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of
the Securities Exchange Act of 1934 or otherwise subject to the
liabilities of that
section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes.)
<PAGE>
SCHEDULE 13D
CUSIP NO. 918435 10 8 PAGE 2 OF 5 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EM Laboratories, Incorporated
13-3823759
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO
ITEMS 2(c) OR 2(e) /_/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,785,196
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 2,785,196
10 SHARED VOTING POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON /_/
2,785,196
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /_/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 20.1%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE>
ITEM 4. PURPOSE OF TRANSACTION
______________________
The following is added to Item 4:
EML has continued preliminary and information-gathering
discussions with the Issuer regarding a range of measures that
might strengthen the strategic alliance between the Issuer and
EM Industries, EML and/or their affiliates. As a consequence of
such discussions and continued deliberations among EML, EM
Industries and their affiliates, on May 24, 1995 Mr. Walter W.
Zywottek, the president of EML, met with the Board of Directors
of the Issuer (of which he is also a member) for the purpose
of presenting a proposal (the "Proposal") to the Issuer
relating to an acquisition by EML of additional authorized but
unissued shares of Common Stock of the Issuer and a subordinated
debenture of the Issuer (the "Debenture").
Under the Proposal, EML would agree to exercise the
Warrant dated April 13, 1995 and purchase an additional 967,015
shares of Common Stock at an exercise price of $11.00 per share,
thereby increasing its equity interest in the Issuer to 20.1% of
the Common Stock. EM Industries would enter into an agreement to
purchase approximately 6.8 million authorized but unissued shares
of Common Stock from the Issuer, at a purchase price of $12.44 per
share, an equity investment of approximately $85,000,000. After
the closing of such transaction, EML and its affiliates would hold
in the aggregate approximately 46.5% of the Common Stock.
The Proposal also provided for a ten-year subordinated
debenture to be issued by the Issuer in the principal amount of
approximately $135,000,000 at an interest rate of approximately 13%
per annum. During the first year of the term of the Debenture,
quarterly interest payments would be made in the form of additional
shares of authorized but unissued Common Stock, issued at $12.44
per share. Upon the first anniversary of the issuance of the
Debenture, as a result of such interest payments in the form of
shares of Common Stock, EML and its affiliates would hold in the
aggregate approximately 49.89% of the Common Stock.
The Debenture would be subordinated to certain specified
bank debt obtained by the Issuer to finance the purchase by the
Issuer of certain assets of the Industrial Products Group of the
Scientific Products, Industrial and Life Sciences Division of
Baxter Healthcare Corporation (the "Baxter Industrial Products
Group"). The proceeds of EML's exercise of the Warrant, the Common
Stock acquisition and the purchase of the Debenture would be
applied by the Issuer to the purchase of the assets of the Baxter
Industrial Products Group.
The closing of the transactions contemplated in the
Proposal would be subject to all necessary approvals by the
Issuer's stockholders and The NASDAQ Stock Exchange, the
simultaneous acquisition by the Issuer of the assets of the Baxter
Industrial Products Group, the execution of an employment agreement
between the Issuer and its president and chief executive officer,
an amendment of the Standstill Agreement, the expiration or
termination of the waiting period required under the Hart-Scott-
Rodino Act and other customary conditions.
After Mr. Zywottek's presentation, the Board of Directors
of the Issuer met, separately, to consider the Proposal. Such
Board agreed to the terms of the Proposal and
PAGE 3 OF 5 PAGES
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authorized the execution and delivery of a Common Share and
Debenture Purchase Agreement (the "Purchase Agreement") by and
between EM Industries and the Issuer, and Amendment Number One to
the Standstill Agreement (the "Amendment") by and among EML,
EM Industries and the Issuer.
Also on May 24, 1995, each of EM Industries and the
Issuer executed and delivered the Purchase Agreement, a copy of
which is attached as Exhibit A. It is anticipated that the
Amendment will be executed at the closing under the Purchase
Agreement.
As contemplated by its terms, EM Industries intends to
assign the Common Share and Debenture Purchase Agreement to EML
before the closing thereunder and it is contemplated that EML will
be the person actually purchasing the shares of Common Stock and
the Debenture at such closing.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS
_________________________________
Exhibit A: Common Share and Debenture Purchase Agreement,
dated May 24, 1995, by and between VWR Corporation
and EM Industries, Incorporated.
PAGE 4 OF 5 PAGES
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this
statement is true, complete and correct.
Date: May 25, 1995
EM LABORATORIES, INCORPORATED
By: /ss/ Stephen J. Kunst
__________________________
Name: Stephen J. Kunst
Title: Secretary
<PAGE>
EXHIBIT A
COMMON SHARE AND DEBENTURE PURCHASE AGREEMENT, DATED MAY 24, 1995,
BY AND BETWEEN VWR CORPORATION AND EM INDUSTRIES, INCORPORATED
<PAGE>
COMMON SHARE AND DEBENTURE PURCHASE AGREEMENT (the
"Agreement") made this 24th day of May, 1995 by and between VWR
CORPORATION ("the Company"), a Pennsylvania corporation, and EM
INDUSTRIES, INCORPORATED ("the Purchaser"), a New York corporation.
BACKGROUND
__________
WHEREAS, pursuant to the Common Share and Warrant
Purchase Agreement, dated February 27, 1995, between the Company
and the Purchaser (the "Original Purchase Agreement") the Company
agreed to sell and the Purchaser agreed to buy 1,818,181 shares
(the "Original Shares") of the issued and outstanding common
shares, par value $1.00, of the Company ("Common Shares")
representing approximately 14.1% of the Common Shares as of the
date thereof;
WHEREAS, under the Original Purchase Agreement, the
Company agreed to sell and the Purchaser agreed to purchase a
warrant (the "Warrant") pursuant to which the Purchaser is entitled
to purchase additional Common Shares (the "Warrant Shares");
WHEREAS, the Company and the Purchaser entered into a
Standstill Agreement, dated February 27, 1995 (the "Standstill
Agreement"), pursuant to which the parties agreed to regulate the
acquisition and disposition by the Purchaser of the Company's
Common Shares under the Original Purchase Agreement;
WHEREAS, pursuant to an Assignment and Assumption
Agreement dated April 13, 1995, the Purchaser assigned its rights
and delegated its duties and obligations under each of the Original
Purchase Agreement and the Standstill Agreement to EM Laboratories,
Incorporated ("EM Laboratories"), a New York corporation and wholly
owned subsidiary of the Purchaser, and EM Laboratories accepted
such assignment and delegation; and, accordingly, all references to
EMI in each of the Original Purchase Agreement and the Standstill
Agreement refer to EM Laboratories as assignee as well as to the
Purchaser, and the Purchaser and EM Laboratories are jointly and
severally liable for the performance of the obligations of
EM Laboratories under each of the Original Purchase Agreement and
the Standstill Agreement;
WHEREAS, at the closing on April 13, 1995 the Company
sold and EM Laboratories purchased the Original Shares and the
Warrant, under the Original Purchase Agreement;
WHEREAS, the Company wishes to issue and sell to the
Purchaser on the Closing Date an aggregate of 6,832,797 shares of
the authorized but unissued Common Shares of the Company at a
purchase price of $12.44 per share (the "Purchased Shares") and a
subordinated debenture in the principal amount of $135,000,000 (the
"Debenture") substantially in the form attached hereto as Exhibit
A;
WHEREAS, the Purchaser wishes to acquire the Purchased
Shares and the Debenture on the terms and subject to the conditions
as set forth in
this Agreement;
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WHEREAS, after its purchase of the Original Shares,
Warrant Shares and Purchased Shares the Purchaser and its
Affiliates will hold an aggregate of approximately 46.5% of the
Common Shares and upon the issuance of additional Common Shares in
accordance with the interest payment terms contained in the
Debenture (the "Debenture Shares") the Purchaser and its Affiliates
will hold an aggregate of approximately 49.89% of the Common
Shares;
WHEREAS, the parties have agreed to amend the Standstill
Agreement as of the Closing Date in accordance with the terms
thereof;
WHEREAS, the Company has entered into an asset purchase
agreement with Baxter Healthcare Corporation ("Baxter"), a Delaware
corporation, and other parties to purchase the Industrial Products
Group of Baxter's Scientific Products Division (the "Baxter Asset
Purchase"), and the Company has agreed to finance the Baxter Asset
Purchase by means of the proceeds received as a result of the
transactions contemplated under this Agreement and related
financing agreements;
WHEREAS the Company has agreed that all proceeds received
by the Company pursuant to this Agreement shall be used exclusively
for the purpose of financing the Baxter Asset Purchase;
WHEREAS, the completion of the Baxter Asset Purchase is
among the conditions precedent to the Purchaser's obligations
hereunder;
WHEREAS, the Purchaser has agreed to cause EM
Laboratories to exercise the Warrant in full on or before the
Closing Date (as defined herein);
WHEREAS, the Company and the Purchaser entered into a
Distribution Agreement, dated February 27, 1995 (the "Distribution
Agreement"), and the parties have agreed to amend the Distribution
Agreement in light of the transactions contemplated herein; and
WHEREAS, the Purchaser is entering into this Agreement
with the expectation that the chief executive office of the Company
(the "Company CEO") will continue providing his services with the
Company and the Company is entering into an employment contract
(the "Employment Contract") with such Company CEO to assure the
continuation of such services, and the Company CEO's entering into
the Employment Contract is among the conditions precedent to the
Purchaser's obligations hereunder;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1 DEFINITIONS
___________
The following terms, as used herein, have the following
meanings:
2
<PAGE>
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under common
control with, such other Person. For the purposes of this
definition, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Board of Directors" means the board of directors of the
Company.
"Debenture" means the subordinated debenture to be issued
to the Purchaser pursuant to this Agreement substantially in the
form attached hereto as Exhibit A.
"Disclosure Letter" means the disclosure letter from the
Company to the Purchaser, dated the date hereof, in a form
reasonably acceptable to the Purchaser, that (i) discloses certain
specified information as provided herein, including but not limited
to information to be provided pursuant to Article 3, and (ii)
states the name of each of the Company's Subsidiaries, each
Subsidiary's jurisdiction of incorporation and the percentage of
its voting stock owned by the Company and each other Subsidiary,
and the name of each of the Company's corporate or joint venture
Affiliates (other than Subsidiaries) and the nature of the
affiliation.
"HSR Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest, encumbrance, option or
right of any kind of any other Person in respect of such asset.
"Material Adverse Change" means a materially adverse
change in the condition (financial or otherwise), properties,
assets, liabilities, business, operations or prospects of the
Company and Subsidiaries taken as a whole.
"1933 Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Person" means an individual, a corporation, a
partnership, an association, a trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Principal Trading Market" means the principal trading
exchange or national automated stock quotation system on which the
Common Shares at any given time are traded or quoted.
3
<PAGE>
"Purchased Shares" shall have the meaning set forth in
the sixth Recital of this Agreement.
"SEC" means the United States Securities and Exchange
Commission.
"Subsidiary" means any entity of which securities or
other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing
similar functions are owned directly or indirectly by the Company.
"Taxes" means any federal, state, county, local or
foreign taxes, charges, fees, levies, or other assessments,
including all net income, gross income, sales and use, ad valorem,
transfer, gains, profits, value-added, excise, franchise, real and
personal property, gross receipt, capital stock, production,
business and occupancy, disability, employment, payroll, license,
estimated, stamp, custom duties, severance or withholding taxes or
charges, or any other tax of any kind whatsoever, imposed by any
government entity, and which includes any interest and penalties
(civil or criminal) on or additions to any such taxes and any
expenses incurred in connection with the determination, settlement
or litigation of any Tax liability.
ARTICLE 2. SALE AND PURCHASE; CLOSING
__________________________
2.1 Sale and Purchase of the Common Shares and
Debenture. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date (as hereinafter defined) the Company
shall issue, sell and deliver to the Purchaser, and the Purchaser
shall purchase and take from the Company, the Purchased Shares and
the Debenture for the aggregate cash purchase price of $220,000,000
(the "Purchase Price").
2.2 Closing.
_______
(a) Subject to the satisfaction or waiver of all the
conditions of each party's obligation to close the transaction
contemplated hereby, the closing of the purchase and sale of the
Purchased Shares and Debenture (the "Closing") pursuant to this
Agreement shall be held at the offices of Drinker Biddle & Reath,
1345 Chestnut Street, Philadelphia, Pennsylvania 19107, at 10:00
A.M., local time, on such date and time as may be fixed by mutual
agreement of the Company and the Purchaser as soon as practicable
following satisfaction of the conditions contained in Section 5 and
Section 6, but in no event later than the closing date of the
Baxter Asset Purchase (such date and time being hereinafter called
the "Closing Date"). Subject to Article 13, failure to consummate
the Closing shall not result in the termination of this Agreement
or relieve any person of any obligation hereunder.
(b) At the Closing the Company shall deliver to the
Purchaser certificates representing the Purchased Shares and a
Debenture substantially in the form attached hereto as Exhibit A,
duly executed by the Company, registered in such Purchaser's name,
free and clear of all Liens and Taxes, and against such deliveries
the Purchaser shall deliver to the Company, by wire transfer to a
bank in the United States specified by the Company for the account
of the
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Company or such other account as designated by the Company, funds
in U.S. dollars in the amount of $220,000,000.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
_____________________________________
Other than as set forth in the Disclosure Letter, the
Company represents and warrants to the Purchaser as follows:
3.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has all
requisite power and authority, and all necessary licenses and
permits, to own and lease its properties and assets and to conduct
its business as now conducted. Each Subsidiary is a corporation
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite
power and authority, and all necessary licenses and permits, to own
and lease its properties and assets and to conduct its business as
now conducted. The Company and its Subsidiaries are each qualified
to do business as a foreign corporation and are in good standing in
all states where the conduct of their respective businesses or
their ownership or leasing of property requires such qualification,
except where the failure to so qualify would not have a material
adverse effect on the Company's or any Subsidiary's business,
properties, assets, prospects, operations or condition (financial
or otherwise).
3.2 Authorization. The Company has all requisite power
and authority to execute and deliver this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery
and performance by the Company of this Agreement have been duly
authorized by all requisite corporate action, and this Agreement
has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws relating to or affecting the
enforcement of creditors' rights generally, and except that the
availability of specific performance, injunctive relief or other
equitable remedies is subject to the discretion of the court before
which any such proceeding may be brought.
3.3 Baxter Asset Purchase. The Company has entered into
the Asset Purchase Agreement dated May 24, 1995, by and among the
Company, Baxter and the Purchaser, which agreement governs the
Baxter Asset Purchase, and an executed copy thereof has been
provided to the Purchaser and such agreement has not been amended.
3.4 No Conflict with Law or Documents. The execution,
delivery and performance of this Agreement and the Debenture by the
Company will not violate any provision of law, any rule or
regulation of any governmental authority, or any judgment, decree
or order of any court binding on the Company, and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or result in the
creation of any Lien, security interest, charge or encumbrance
upon, any of the properties, assets or
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outstanding stock of the Company under its Articles of
Incorporation or Bylaws, or any indenture, mortgage, lease,
agreement or other instrument to which the Company is a party or by
which it or any of its properties is bound.
3.5 Capital Stock of the Company.
(a) The authorized capital stock of the Company consists
of: (i) 30,000,000 Common Shares, $1.00 par value per share, of
which, prior to the issuance of any of the Purchased Shares
pursuant to this Agreement, (A) 12,894,257 shares have been duly
and validly issued (of which 12,892,271 are currently outstanding,
fully paid and nonassessable and 1,986 are treasury shares), (B)
586,684 shares have been reserved for issuance upon the awarding of
stock grants or the exercise of options granted or to be granted by
the Company (the "Options" and "Option Shares") under the Company's
1986 Long-Term Incentive Stock Plan, as amended to date (the
"Existing Stock Plan"), and (C) an adequate number of shares has
been reserved for issuance upon the exercise of the Warrant and the
issuance of the Debenture Shares, and (ii) 1,000,000 Preferred
Shares, $1.00 par value per share, of which none is presently
issued and outstanding. All outstanding Common Shares have been
duly authorized and validly issued and are fully paid and
nonassessable. Except for any rights to acquire securities of the
Company pursuant to the Rights Agreement (as defined in subsection
(b) below) or the Standstill Agreement, as amended and as otherwise
described in this Section, there are no preemptive or similar
rights to purchase or otherwise acquire shares of capital stock of
the Company pursuant to any provision of law or the Articles of
Incorporation or Bylaws of the Company or by agreement or
otherwise.
(b) The Rights Agreement, dated as of May 20, 1988 (the
"Rights Agreement") between the Company and First Interstate Bank
of Washington, N.A., as Rights Agent, as amended, is in full force
and effect. The Purchaser's acquisition of the Purchased Shares,
the Debenture and the Debenture Shares, as contemplated herein,
will not cause the Purchaser to become an "Acquiring Person," as
defined in the Rights Agreement.
3.6 Valid Issuance. The Purchased Shares when issued,
sold and delivered to the Purchaser in accordance with this
Agreement will be duly and validly issued, fully paid, non-
assessable and free and clear of Liens and Taxes, and preemptive or
similar rights except as set forth in this Agreement and the
Debenture Shares, when issued and delivered to the Purchaser in
accordance with the terms of the Debenture will be duly and validly
issued, fully paid, nonassessable and free and clear of all Liens
and Taxes, and or preemptive or similar rights except as set forth
in this Agreement or the Debenture, as the case may be.
3.7 Consents and Approvals. Except for compliance with
the notification or other requirements of the NASDAQ System and the
HSR Act, and the rules and regulations promulgated thereunder and
filings under Federal and applicable state securities laws, no
permit, consent, approval or authorization of, or declaration to or
filing with, any federal, state, local or foreign governmental or
regulatory authority or other person, not made or obtained, is
required in connection with the execution or delivery of this
Agreement or the Debenture by the Company, the offer, issuance,
sale or delivery of the Purchased Shares or the Debenture Shares,
or the carrying out by the Company of the other transactions
contemplated hereby.
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3.8 Private Offering. Assuming the accuracy of the
Purchaser's representations and warranties contained in Article 4
herein, the offer, issuance and delivery to the Purchaser pursuant
to the terms of this Agreement of the Purchased Shares, Debenture
and Debenture Shares are exempt from registration under the 1933
Act. The Purchaser shall have certain rights to registration of
the Purchased Shares and the Debenture Shares for resale, as
provided in the Standstill Agreement, as amended.
3.9 Additional Securities Law Matters. None of the
Company or any of its Affiliates, or any Person acting on its or
their behalf, has offered to sell or sold any Common Stock by means
of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the 1933 Act that would subject
the issuance and sale of the Purchased Shares or the Debenture to
the registration provisions of the 1933 Act.
3.10 Articles of Incorporation and Bylaws. The copies of
the Company's Articles of Incorporation and Bylaws, each as amended
to date and as attached to the Disclosure Letter, are true and
correct copies of such documents and are in full force and effect.
3.11 Subsidiaries. The Disclosure Letter states the name
of each of the Company's Subsidiaries. The Disclosure Letter also
states each Subsidiary's jurisdiction of incorporation and the
percentage of its voting stock owned by the Company and each other
Subsidiary and the name of each of the Company's corporate or joint
venture Affiliates (other than Subsidiaries) and the nature of the
affiliation.
3.12 SEC Filings.
___________
(a) The Company has delivered to the Purchaser or has
made available, prior to the date hereof, true and correct copies
of (i) its Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, (ii) its Quarterly Reports on Form 10-Q for the
quarter ended March 31, 1995, (iii) its 1994 Annual Report to
Stockholders, (iv) its Current Reports on Form 8-K, if any, filed
with the SEC since December 31, 1994 and (v) its Proxy Statement
for its 1995 Annual Meeting of Stockholders. All documents
described in this Section are hereinafter referred to as the "SEC
Reports."
(b) The SEC Reports are all of the reports the Company
has been required to file with the Commission since December 31,
1994. The SEC Reports when filed complied in all material respects
with the 1934 Act and all applicable legal requirements and did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and as of the Closing
Date no event will have occurred that should have been described in
any SEC Report or an amendment or supplement thereto which has not
been so described.
3.13 Financial Statements.
____________________
(a) (i) The audited consolidated balance sheets and
related audited statements of consolidated income, cash flow and
stockholders' equity of the Company and its Subsidiaries
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as at and for the three fiscal years of the Company ended December
31, 1994, (ii) the unaudited consolidated balance sheet and related
unaudited consolidated statements of income, cash flow and
stockholders' equity of the Company and its Subsidiaries, as at and
for the three months ended March 31, 1995 in each case together
with the notes thereto, copies of all of which have heretofore been
furnished to the Purchaser or have been made available, present
fairly in all material respects the consolidated financial position
of the Company and its Subsidiaries at such dates and the
consolidated results of their operations and their consolidated
cash flows for the periods then ended, and (iii) the consolidated
balance sheet (the "Balance Sheet") of the Company and its
Subsidiaries at March 31, 1995 ("the Balance Sheet Date") reflected
all material liabilities and obligations of the Company and of each
Subsidiary, whether accrued, contingent or otherwise, as of the
date thereof, in each case, to the extent required by United States
generally accepted accounting principles, consistently applied
("GAAP").
(b) Since the Balance Sheet Date there has been no
Material Adverse Change or any event or development which could
reasonably be expected to result in a Material Adverse Change in
the business, properties, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries, taken
as a whole, other than such changes, events or developments
resulting from general economic conditions or generally affecting
the industries in which the Company and its Subsidiaries are
involved.
(c) Since the Balance Sheet Date there has been no
declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the
Company.
(d) Since the Balance Sheet Date there has been no
issuance or sale by the Company of any shares of capital stock of
the Company of any class, or any options, warrants or other rights
to acquire any such shares, or any securities convertible into or
exchangeable for such shares or any commitments made with respect
to the foregoing, other than stock option exercises, grants of
stock options and grants of restricted stock awards pursuant to
Company plans.
(e) Since the Balance Sheet Date, other than the
Debenture, the Company has not incurred any additional indebtedness
for borrowed money and has not issued or sold any additional debt
securities and has not entered into any commitments with respect to
the foregoing.
(f) Since the Balance Sheet Date there has been no
forgiveness or cancellation of any debts or claims or waivers of
any rights.
(g) Since the Balance Sheet Date there has been no
mortgage, pledge, lien, security interest or other charge or
encumbrance on any of the properties or assets, tangible or
intangible, of the Company or its Subsidiaries.
(h) Since the Balance Sheet Date there has been no loss
of officers, employees, suppliers or customers; or any strike or
other labor trouble, that materially and adversely affects the
business, operations or prospects of the Company and its
Subsidiaries taken as a whole.
8
<PAGE>
(i) Since the Balance Sheet Date no damage, destruction
or loss, whether or not covered by insurance, has occurred which
materially and adversely affects the condition (financial or
otherwise), properties, assets, business, operations or prospects
of the Company and its Subsidiaries taken as a whole.
(j) Since the Balance Sheet Date there has been no
change in method of accounting or accounting practice by the
Company or any Subsidiary, except for any such change required by
reason of a concurrent change in or application of generally
accepted accounting principles.
3.14 Documents Delivered. No document, certification,
schedule, list or other written information required to be
delivered to the Purchaser by or on behalf of the Company pursuant
to this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact
which will make the statements herein or therein, in light of the
circumstances under which they were made, misleading
3.15 Proceedings and Litigation. There is no pending, or
to the knowledge of the Company threatened, suit, action or
administrative, arbitration or other proceeding, or governmental
inquiry or investigation, seeking to restrain, prevent or change
the transactions contemplated hereby or otherwise questioning the
validity or legality of such transactions or which may otherwise
have a materially adverse effect upon the business, properties,
assets, operations or condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole
3.16 Insurance. All material insurance policies carried
by the Company and its Subsidiaries are in full force and effect
and all premiums due thereon have been paid and the Company has
complied in all material respects with the provisions of all such
policies.
3.17 Intellectual Property Rights. The Company has
received no notice that the Company is infringing any intellectual
property rights of any other Person, no claim is pending or, to the
knowledge of the Company, has been made to such effect that has not
been resolved and, to the knowledge of the Company, the Company is
not infringing any intellectual property rights of any other
Person.
3.18 Prior Registration Rights. Except as provided in
the Standstill Agreement, as amended, the Company is under no
contractual obligation to register under the 1933 Act any of its
presently outstanding securities or any of its securities that may
subsequently be issued.
3.19 Environmental Matters. The Company is involved in
various environmental, contractual, warranty, and public liability
cases and claims, which are considered routine to the Company's
business. In the opinion of the Company's management the potential
financial impact of these matters is not material to the business,
properties, assets, prospects, operations or condition (financial
or otherwise) of the Company and its Subsidiaries.
9
<PAGE>
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER
_____________________________________
4.1 Principal Place of Business. The Purchaser
represents and warrants to the Company that the address of its
principal place of business is 5 Skyline Drive, Hawthorne, New York
10532.
4.2 Purchase Without View to Distribute. The Purchaser
represents and warrants to the Company that the Purchased Shares,
the Debenture and, when issued, the Debenture Shares are being
acquired by the Purchaser for its own account, not as a nominee or
agent, and not with a view to resale or distribution within the
meaning of the 1933 Act and the rules and regulations thereunder,
and such Purchaser will not distribute the Purchased Shares or
Debenture in violation of the 1933 Act.
4.3 Restrictions on Transfer. The Purchaser (i) acknow-
ledges that the Debenture is transferrable only to an Affiliate of
the Purchaser and that the Purchased Shares and the Debenture
Shares have not been registered under the 1933 Act and must be held
indefinitely by the Purchaser unless they are subsequently
registered under the 1933 Act or an exemption from registration is
available, (ii) is aware that any routine sales under Rule 144 of
the Securities and Exchange Commission under the 1933 Act of
Purchased Shares or Debenture Shares may be made only in limited
amounts and in accordance with the terms and conditions of that
Rule and that in such cases where the Rule is not applicable,
compliance with some other registration exemption will be required,
(iii) is aware that Rule 144 is not presently available for use by
the Purchaser for resale of any of the Purchased Shares or the
Debenture Shares and (iv) is aware that, except as provided in the
Standstill Agreement, as amended, the Company is not obligated to
register under the 1933 Act any sale, transfer or other disposition
of the Purchased Shares or the Debenture Shares.
4.4 Access to Information. The Purchaser confirms that
the Company has made available to it the opportunity to ask
questions of and receive answers from the Company's officers and
directors concerning the terms and conditions of the offering and
the business and financial condition of the Company, and to
acquire, and the Purchaser has received to its satisfaction, such
additional information, in addition to that set forth herein, about
the business and financial condition of the Company and the terms
and conditions of the offering as it has requested; provided,
however, that the Purchaser's confirmation set forth in this
Section shall in no way prejudice or otherwise affect the
Purchaser's right to rely upon and enforce the Company's covenants,
agreements, representations and warranties contained in this
Agreement.
4.5 Additional Representations of the Purchaser. The
Purchaser represents that (i) it is an "accredited investor" as
such term is defined in Rule 501 promulgated under the 1933 Act,
(ii) it has sufficient funds available to purchase the Purchased
Shares and the Debenture and (iii) its knowledge and experience in
financial and business matters are such that it is capable of
evaluating the merits and risks of its purchase of the Purchased
Shares and the Debenture; provided, however, that the Purchaser's
representation set forth in this clause (iii) shall in no way
prejudice or otherwise affect the Purchaser's right to rely upon
and enforce the Company's covenants, agreements, representations
and warranties contained in this Agreement, and (iv) the
10
<PAGE>
purchase of the Purchased Shares and the Debenture has been duly
and properly authorized and this Agreement has been duly executed
by it or on its behalf.
4.6 Legends. The Purchaser understands that the
certificates evidencing the Purchased Shares and, when issued, the
Debenture Shares shall bear the legend set forth in Section 10.2
herein.
4.7 Proceedings and Litigation. There is no pending, or
to the knowledge of the Purchaser threatened, suit, action or
administrative, arbitration or other proceeding, or governmental
inquiry or investigation, seeking to restrain, prevent or change
the transactions contemplated hereby or otherwise questioning the
validity or legality of such transactions.
4.8 Authorization. The Purchaser has all requisite power
and authority to execute and deliver this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery
and performance by the Purchaser of this Agreement have been duly
authorized by all requisite corporate action, and this Agreement
has been duly executed and delivered by the Purchaser and
constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms,
except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, reorganization and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, and except that the availability of specific
performance, injunctive relief or other equitable remedies is
subject to the discretion of the court before which any such
proceeding may be brought.
11
<PAGE>
ARTICLE 5. CONDITIONS PRECEDENT TO THE PURCHASER'S
OBLIGATIONS
_______________________________________
The Purchaser's obligation to purchase and make payment
for the Purchased Shares and Debenture on the Closing Date is
subject, at its option, to the satisfaction of each of the
following conditions:
5.1 Representations and Warranties. On the Closing
Date, the representations and warranties contained in Article 3
hereof shall be true and correct in all material respects with the
same effect as though made on and as of the Closing Date, and the
Purchaser shall have received a certificate signed by an executive
officer of the Company to the foregoing effect.
5.2 Performance. All the covenants, agreements and
conditions contained in this Agreement to be performed or complied
with by the Company on or prior to the Closing Date shall have been
performed or complied with in all materials respects, and the
Purchaser shall have received a certificate signed by an executive
officer of the Company to the foregoing effect.
5.3 Opinion of Counsel. The Purchaser shall have
received a legal opinion from counsel to the Company, substantially
in the form set forth in Exhibit B.
5.4 HSR Act. The waiting period under the HSR Act shall
have expired or been terminated.
5.5 Standstill Agreement. The Company shall have signed
the amendment to the Standstill Agreement, which amendment shall be
substantially in the form set forth in Exhibit D.
11-A
<PAGE>
5.6 Distribution Agreement. The Distribution Agreement
shall have been amended as mutually agreed by the Company and the
Purchaser.
5.7 Rights Agreement. The Purchaser's acquisition of
the Purchased Shares, Debenture and Debenture Shares, as
contemplated herein, did not and will not cause the Purchaser to
become an "Acquiring Person," as defined in the Rights Agreement.
5.8 Employment Contract. The Company CEO and the
Company shall have entered into the Employment Contract and the
Employment Contract shall be satisfactory in form and substance to
the Purchaser.
5.9 Baxter Asset Purchase. The Baxter Asset Purchase
shall have been completed.
5.10 No Proceeding or Litigation. No suit, action, or
other proceeding by any person (other than by the Purchaser)
seeking to restrain, prevent or change the transactions
contemplated hereby or otherwise questioning the validity or
legality of such transactions shall have been instituted and be
pending.
5.11 Disclosure Letter. The Disclosure Letter shall have
been delivered to the Purchaser.
5.12 Approval by Principal Trading Market. The issuance,
sale and purchase of the Purchased Shares and Debenture Shares, as
contemplated by this Agreement, shall have received all necessary
approvals from the Principal Trading Market.
5.13 Approval by Company Stockholders. The issuance,
sale and purchase of the Purchased Shares and Debenture Shares, as
contemplated by this Agreement, shall have received all necessary
approvals by the Company's stockholders.
ARTICLE 6. CONDITIONS PRECEDENT TO THE COMPANY'S
OBLIGATIONS
_____________________________________
The Company's obligation to sell the Purchased Shares and
the Debenture on the Closing Date is subject, at the Company's
option, to the satisfaction of each of the following conditions:
6.1 Representations and Warranties. On the Closing
Date, the representations and warranties contained in Article 4
hereof shall be true and correct in all material respects with the
same effect as though made on and as of the Closing Date and the
Company shall have received a certificate signed by an executive
officer of the Purchaser to the foregoing effect.
6.2 Performance. All the covenants, agreements and
conditions contained in this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date shall have
been performed or complied with in all material respects, and the
Company shall
12
<PAGE>
have received a certificate signed by an executive officer of the
Purchaser to the foregoing effect.
6.3 No Proceeding or Litigation. No suit, action, or
other proceeding by any person (other than by the Company) seeking
to restrain, prevent or change the transactions contemplated hereby
or otherwise questioning the validity or legality of such
transactions shall have been instituted and be pending.
6.4 HSR Act. The waiting period under the HSR Act shall
have expired or been terminated.
6.5 Standstill Agreement. The Purchaser shall have
signed the amendment to the Standstill Agreement, which amendment
shall be substantially in the form set forth in Exhibit D.
6.6 Opinion of Counsel. The Company shall have received
a legal opinion from Counsel to the Purchaser, substantially in the
form set forth in Exhibit C.
6.7 Approval by Principal Trading Market. The issuance,
sale and purchase of the Purchased Shares and Debenture Shares, as
contemplated by this Agreement, shall have received all necessary
approvals from the Principal Trading Market.
6.8 Approval by Company Stockholders. The issuance,
sale and purchase of the Purchased Shares and Debenture Shares, as
contemplated by this Agreement, shall have received all necessary
approvals by the Company's stockholders.
6.9 Baxter Asset Purchase. The Baxter Asset Purchase
shall have been completed, and the related Asset Purchase Agreement
shall not have been amended since the date hereof, without the
prior written consent of the Purchaser.
ARTICLE 7. HSR ACT
_______
7.1 Filings. As promptly as practicable after the date
of this Agreement the Company and the Purchaser shall, and the
Purchaser shall make arrangements for its "ultimate parent entity,"
as defined under the HSR Act, to (a) make all filings required to
be made by them and provide such information as may be requested
under the HSR Act in order to consummate the transactions
contemplated hereby, (b) make all other required regulatory filings
which may be applicable to the transactions contemplated hereby and
(c) cooperate with one another in connection with all such filings.
ARTICLE 8. COVENANTS OF THE COMPANY AND THE
PURCHASER
________________________________
8.1 Covenants of the Company. The Company covenants
that:
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<PAGE>
(a) at all such times as Rule 144 is available for use
by the holders of the Purchased Shares or Debenture Shares, the
Company will furnish each such holder upon request with all
information within the possession of the Company required for the
preparation and filing of Form 144;
(b) subject to the provisions of the Confidentiality
Agreement, dated December 13, 1994, between the parties, during the
time between the signing of this Agreement and the Closing the
Company will give the Purchaser reasonable access during normal
business hours, upon reasonable prior notice, to the offices,
properties, books and records of the Company and will furnish to
the Purchaser such financial and operating data and other
information relating to the Company as the Purchaser may reasonably
request;
(c) all proceeds received by the Company from the
Purchaser pursuant to this Agreement will be used exclusively for
the purpose of financing the Baxter Asset Purchase;
(d) except as contemplated by this Agreement or the
Existing Stock Plan, or as may be disclosed in the Disclosure
Letter, from the date hereof until the Closing Date, the Company
will conduct its business in the ordinary course and, to the extent
consistent with such business, use all reasonable efforts to
preserve intact its present business organization, to keep
available the services of its present officers and employees, and
to preserve its relationships with customers, suppliers and others
having business dealings with it, and will not (i) declare, set
aside or pay any dividend or other distribution with respect to
shares of capital stock of the Company, (ii) issue or sell any
shares of capital stock of the Company of any class, or any
options, warrants or other rights to acquire any such shares, or
any securities convertible into or exchangeable for such shares, or
make any commitments with respect to the foregoing, (iii) amend its
Restated Articles of Incorporation or Bylaws or the Rights
Agreement, (iv) make any change in any method of accounting or
accounting practice by the Company or any Subsidiary, except for
any such change required by reason of a concurrent change in or
application of generally accepted accounting principles, or
(v) take or permit to be taken any action which would cause the
representations and warranties contained in Article 3 of this
Agreement to be inaccurate as of the Closing Date; and
8.2 Covenants of the Purchaser. The Purchaser covenants
that:
(a) the Purchaser will cause EM Laboratories to exercise
the Warrant in full on or before the Closing Date;
(b) other than the acquisition of Warrant Shares by
means of the exercise of the Warrant, neither the Purchaser nor its
Affiliates shall between the date of execution of this Agreement
and Closing, without the written consent of the Company, acquire in
any way or hold record or beneficial ownership of any Common Shares
or any other Company securities entitled to vote for the election
of directors, or any security convertible into or exchangeable or
exercisable for the purchase of Common Shares or other Company
securities entitled to vote for the election of directors, except
such Common Shares and other such Company securities which the
Purchaser or its Affiliates hold of record or beneficially own as
of the date hereof.
14
<PAGE>
ARTICLE 9. CERTAIN ADDITIONAL COVENANTS
____________________________
9.1 Further Assurances. Subject to the terms and
conditions of this Agreement, each party will use all reasonable
efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary or desirable under
applicable laws and regulations to consummate the transactions
contemplated by this Agreement. The Company and the Purchaser each
agree to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may
be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
9.2 Certain Filings. The Company and the Purchaser will
cooperate with one another (a) in obtaining all necessary
regulatory approvals, (b) in determining whether any actions,
consents, approvals or waivers are required to be obtained from
parties to any material contracts in connection with the
consummation of the transactions contemplated by this Agreement and
(c) in taking such actions or making any such filings, furnishing
information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
9.3 Public Announcements. The parties agree to consult
with each other before taking any action that would require the
issuance of, or issuing, any press release or making any public
statement with respect to this Agreement, the Debenture or the
transactions contemplated hereby and thereby and, except as may be
required by applicable law or any listing agreement with the
Principal Trading Market or any other securities exchange, will not
take any such action, issue any such press release or make any such
public statement prior to such consultation.
9.4 Amendment of Standstill Agreement. The parties
agree to amend the Standstill Agreement, which amendment shall be
substantially in the form set forth in Exhibit D hereto.
9.5 Board Action under Rights Agreement. The Board of
Directors will take all necessary actions, including amending the
Rights Agreement, to ensure that the Purchaser's acquisition of the
Purchased Shares, Debenture and Debenture Shares, as contemplated
herein, will not cause the Purchaser to become an "Acquiring
Person," as defined in the Rights Agreement.
9.6 Meeting of Company Stockholders.
_______________________________
(a) The Company's Board of Directors shall call a
special meeting of the Company's stockholders (the "Stockholders
Meeting") for the purpose of approving, as may be required by
applicable law and stock exchange rules, the Company's issuance of
Common Shares to the Purchaser, as provided herein. The Company
shall use its reasonable best efforts to obtain such stockholder
approval. The Company, acting through its Board of Directors,
shall recommend such issuance to the Company's stockholders.
15
<PAGE>
(b) At the Stockholders Meeting, the Purchaser agrees to
vote or cause to be voted all Common Shares held by it and its
Affiliates in favor of the proposal to approve such issuance. The
Stockholders Meeting shall be held as soon as practicable after the
date of this Agreement in accordance with applicable law and with
rules, regulations and practices of the National Association of
Securities Dealers, Inc.
9.7 Proxy Statement. The Company will promptly prepare
and file with the SEC preliminary proxy solicitation materials (the
"Preliminary Proxy Statement") for the Stockholders Meeting and,
after review by the SEC, shall mail a definitive version of such
materials (the "Proxy Statement") to all stockholders of the
Company. The Proxy Statement will comply in all material respects
with all applicable requirements of the laws of the Commonwealth of
Pennsylvania and the 1934 Act. The Proxy Statement will not
contain any statement which, at the time and in the light of the
circumstances in which it is made, is false or misleading with
respect to any material fact, or will not omit to state any
material fact necessary in order to make the statements made
therein not false or misleading; provided, however, that the
Company makes no representation or warranty as to any statement or
omission in the Proxy Statement made in reliance upon and in
conformity with written information (a) relating to the Purchaser
or its Affiliates as furnished by the Purchaser expressly for
inclusion in the Preliminary Proxy Statement or the Proxy
Statement, or (b) relating to Baxter or its Affiliates as furnished
by Baxter expressly for inclusion in the Preliminary Proxy
Statement or the Proxy Statement. The Company will amend,
supplement or revise the Proxy Statement as may from time to time
be necessary in order to make the immediately preceding sentence
true and correct at and as of all times from the mailing of the
Proxy Statement to the stockholders of the Company to and including
the date of the Stockholders Meeting. Prior to submitting the
Preliminary Proxy Statement and the Proxy Statement and any such
amendment, supplement or revision to the SEC or the Company's
stockholders, such Preliminary Statement, Proxy Statement and
amendment, supplement or revision will be submitted to the
Purchaser for its review and comment.
ARTICLE 10. COMPLIANCE WITH 1933 ACT; RESTRICTIONS
ON TRANSFERABILITY OF PURCHASED SHARES AND
DEBENTURE SHARES
__________________________________________
10.1 Compliance with 1933 Act. The Purchased Shares, the
Debenture and the Debenture Shares shall not be transferable,
except upon the conditions specified in this Article and in the
Standstill Agreement, as amended, which conditions are intended
among other things to insure compliance with the provisions of the
1933 Act and applicable state securities laws in respect of any
such transfer.
10.2 Restrictive Legend. Each certificate representing
the Purchased Shares or Debenture Shares shall (unless otherwise
permitted by the provisions of Section 10.4 below) be stamped or
otherwise imprinted with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
16
<PAGE>
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
DEBENTURE PURCHASE AGREEMENT, DATED MAY 24,
1995, BETWEEN VWR CORPORATION AND EM
INDUSTRIES, INCORPORATED, AND A STANDSTILL
AGREEMENT, DATED FEBRUARY 27, 1995, AS AMENDED
ON MAY 24, 1995, BETWEEN VWR CORPORATION AND
EM INDUSTRIES, INCORPORATED. COPIES OF SUCH
AGREEMENTS ARE ON FILE AT THE RESPECTIVE
OFFICES OF VWR CORPORATION AND EM INDUSTRIES,
INCORPORATED."
10.3 Restrictions on Transferability. The Company shall
not be required to register the transfer of the Purchased Shares or
the Debenture Shares on the books of the Company unless the Company
shall have been provided with an opinion of counsel reasonably
satisfactory to it prior to such transfer to the effect that
registration under the 1933 Act or any applicable state securities
law is not required in connection with the transaction resulting in
such transfer; provided, however, that no such opinion of counsel
shall be necessary in order to effectuate a transfer of Purchased
Shares or Debenture Shares in accordance with the provisions of
Rule 144(k) promulgated under the 1933 Act. Each certificate for
Purchased Shares or Debenture Shares issued upon any transfer as
above provided shall bear the restrictive legend set forth in
Section 10.2 above, except that such restrictive legend shall not
be required if the opinion of counsel reasonably satisfactory to
the Company referred to above is to the further effect that such
legend is not required in order to establish compliance with the
provisions of the 1933 Act and any applicable state securities law,
or if the transfer is made in accordance with the provisions of
Rule 144(k) under the 1933 Act.
10.4 Termination of Restrictions on Transferability. The
conditions precedent imposed by this Article upon the
transferability of the Purchased Shares and Debenture Shares shall
cease and terminate as to any of the Purchased Shares or Debenture
Shares when (i) such securities shall have been registered under
the 1933 Act and sold or otherwise disposed of in accordance with
the intended method of disposition by the seller or sellers thereof
set forth in the registration statement covering such securities,
(ii) at such time as an opinion of counsel reasonably satisfactory
to the Company shall have been rendered as required pursuant to
Section 10.3 to the effect that the restrictive legend on such
securities is no longer required, or (iii) when such securities are
transferable in accordance with the provisions of Rule 144(k)
promulgated under the 1933 Act. Whenever the conditions imposed by
this Article shall terminate as hereinabove provided with respect
to any of the Purchased Shares or Debenture Shares, the holder of
any such securities bearing the legend set forth in this Article as
to which such conditions shall have terminated shall be entitled to
receive from the Company, without expense (except for the payment
of any applicable transfer tax) and as expeditiously as possible,
new stock certificates not bearing the portion of such legend
relating to the 1933 Act.
17
<PAGE>
ARTICLE 11. SURVIVAL OF COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES
__________________________________
All covenants, agreements, representations and warranties
made herein shall survive until July 1, 1997; provided, however,
representations and warranties made herein shall only be deemed to
have been made as of the date hereof and as of the Closing Date.
ARTICLE 12. INDEMNIFICATION
_______________
(a) Effective at the Closing, the Company agrees to
indemnify, hold harmless and defend the Purchaser and its
Affiliates, against and in respect of any and all claims, demands,
liabilities, losses, costs and expenses (including reasonable
attorneys' fees and litigation expenses) arising out of or based
upon (i) the breach of any representation or warranty made by the
Company in this Agreement, the Standstill Agreement, as amended, or
in any certificate or other document required to be delivered
pursuant hereto, or (ii) the breach by the Company of any agreement
or covenant contained in this Agreement or the Standstill
Agreement, as amended.
(b) Effective at the Closing, the Purchaser agrees to
indemnify, hold harmless and defend the Company and its Affiliates
against and in respect of any and all claims, demands, liabilities,
losses, costs and expenses (including reasonable attorneys' fees
and litigation expenses) arising out of or based upon (i) the
breach of any representation or warranty made by the Purchaser in
this Agreement, the Standstill Agreement, as amended, or in any
certificate or other document required to be delivered pursuant
hereto, or (ii) the breach by the Purchaser of any agreement or
covenant contained in this Agreement or the Standstill Agreement,
as amended.
(c) No party shall be liable for indemnification under
this Article unless the total of all liabilities, costs, losses and
expenses for which the indemnified party has a right to
indemnification under this Article (collectively, the
"Indemnifiable Damages") exceeds $500,000, in which event the
indemnified party shall be entitled to Indemnifiable Damages solely
in excess of such amount.
(d) No claims for indemnification under this Article may
be made later than July 1, 1997, with respect to the inaccuracy or
breach of a representation or warranty, or two (2) years after such
breach first occurred with respect to the breach of a covenant or
agreement. No provision of this Agreement shall limit the ability
of either party to obtain specific performance of the other party's
obligations hereunder, including, without limitation, the
obligations of the Company to register the registrable securities.
(e) The party seeking indemnification under this Article
(the "Indemnified Party") agrees to give prompt notice to the party
against whom indemnity is sought (the "Indemnifying Party") of the
assertion of any claim, or the commencement of any suit, action or
proceeding, in respect of which indemnity may be sought under such
Article. The Indemnifying Party may participate in and, at its
election, control the defense of any such suit,
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<PAGE>
action or proceeding at its own expense; provided that counsel
selected to conduct such defense is reasonably satisfactory to the
Indemnified Party. The Indemnifying Party shall not be liable
under this Article in the event prompt notice of the assertion of
a claim or the commencement of a suit, action or proceeding in
respect of which indemnity is sought is not given as described
herein, but only to the extent the defense of such claim, suit,
action or proceeding is prejudiced thereby, or for any settlement
effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder. The
Indemnifying Party may settle or compromise any claim without the
prior written consent of the Indemnified Party; provided that the
Indemnifying Party may not agree to any such settlement pursuant to
which any remedy or relief, other than monetary damages for which
the Indemnifying Party shall be responsible hereunder, shall be
applied to or against the Indemnified Party, without the prior
written consent of the Indemnified Party.
ARTICLE 13. TERMINATION
___________
13.1 Termination. This Agreement may be terminated at
any time:
(a) by mutual consent of the Company and the Purchaser
in a written instrument;
(b) by either the Purchaser or the Company if there has
been a material breach on the part of the other of any
representation, warranty, covenant or agreement set forth in this
Agreement, which breach has not been cured within thirty (30)
business days following receipt by the breaching party of notice of
such breach;
(c) by either the Company or the Purchaser if the
Closing shall not have occurred on or before November 1, 1995
unless the failure to close by such time is due to the breach of
this Agreement by the party seeking to terminate.
13.2 Effect of Termination. In the event of termination
of this Agreement by either the Company or the Purchaser as
provided in Section 13.1, this Agreement shall forthwith become
void. No termination of this Agreement shall relieve any party
from liability resulting from a breach by such party of any of its
representations, warranties, covenants or agreements set forth
herein.
ARTICLE 14. MISCELLANEOUS
_____________
14.1 Owner of Shares. The Company may deem and treat the
person in whose name the Purchased Shares, Debenture or Debenture
Shares are registered as the absolute owner thereof for all
purposes whatsoever, and the Company shall not be affected by any
notice to the contrary.
14.2 Broker or Finder. Each party to this Agreement
represents and warrants that no broker or finder has acted for such
party in connection with this Agreement or the
19
<PAGE>
transactions contemplated by this Agreement and that no broker or
finder is entitled to any broker's or finder's fee or other
commission in respect thereof based in any way on agreements,
arrangements or understandings made by such party. The Company
shall indemnify the Purchaser against, and hold it harmless from,
any liability, cost, or expense (including reasonable attorneys'
fees and expenses) resulting from any agreement, arrangement, or
understanding made by the Company, and the Purchaser shall
indemnify the Company against, and hold the Company harmless from,
any liability, cost, or expense (including reasonable attorneys
fees and expenses) resulting from any agreement, arrangement, or
understanding made by the Purchaser with any third party, for
brokerage or finder's fees or other commissions in connection with
this Agreement or any of the transactions contemplated hereby.
14.3 Specific Enforcement. The parties hereto
acknowledge and agree that each would be irreparably damaged if any
of the provisions of this Agreement are not performed by the other
in accordance with their specific terms or are otherwise breached.
It is accordingly agreed that each party shall be entitled to seek
an injunction or injunctions to prevent breaches of this Agreement
by the other and to enforce this Agreement and the terms and
provisions thereof specifically against the other, in addition to
any other remedy to which such aggrieved party may be entitled at
law or in equity. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the courts of the
Commonwealth of Pennsylvania, County of Chester, in the United
States District Court for the Eastern District of Pennsylvania, in
the courts of the State of New York, County of New York, or in the
United States District Court for the Southern District of New York,
and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process
in any action or proceeding referred to in the preceding sentence
may be served on any party anywhere in the world.
14.4 Severability. If any term or provision of this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
14.5 Expenses. Except as otherwise provided herein, each
party hereto shall pay its own expenses in connection with this
Agreement.
14.6 Assignment; Successors. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable
by the successors and permitted assigns of the parties hereto. The
Company may not assign its rights and delegate its duties and
obligations under this Agreement without the prior written consent
of the Purchaser, and the Purchaser may not assign its rights or
delegate its duties and obligations under this Agreement without
the prior written consent of the Company and, in the absence of
such consent, any such purported assignment or delegation shall be
void; provided, however, that the Purchaser may assign its rights
and delegate its duties and obligations under this Agreement and
the Debenture without such consent to an Affiliate of the
Purchaser, which Affiliate (referred to herein as the "Assignee")
may, following duly authorized execution and delivery of an
agreement assuming the obligations of the
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Purchaser hereunder reasonably satisfactory to the Company, accept
title to the Purchased Shares, Debenture and/or Debenture Shares.
In the event that the Purchaser assigns its rights and delegates
all of its obligations under this Agreement or the Debenture in
accordance with this Section, all references to the Purchaser
herein shall refer to the Assignee as well as to the Purchaser and
the Purchaser shall be jointly and severally liable with the
Assignee for the performance of its obligations hereunder.
14.7 Amendments. This Agreement may not be modified,
amended, altered or supplemented except by a written agreement
signed by the Company and the Purchaser which shall be authorized
by all necessary corporate action of each party. Any party may
waive any condition to the obligations of any other party
hereunder.
14.8 Notices. Every notice or other communication
required or contemplated by this Agreement to be given by a party
shall be delivered either by (a) personal delivery, (b) courier
mail, or (c) facsimile mail addressed to the party for whom
intended at the following address:
To the Company: VWR Corporation
1310 Goshen Parkway
West Chester, PA 19380
Attention: Jerrold B. Harris
President and Chief Executive Officer
Telecopy No.: (610) 436-1760
With a copy to: Drinker Biddle & Reath
1000 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attention: Thomas E. Wood, Esq.
Telecopy No.: (610) 993-8585
To the Purchaser: EM Industries, Incorporated
5 Skyline Drive
Hawthorne, New York 10532
Attention: President & Chief Executive Officer
Telecopy No.: (914) 592-8775
With a copy to: Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Klaus H. Jander, Esq.
Telecopy No.: (212) 878-3025
or at such other address as the intended recipient previously shall
have designated by written notice to the other parties. Notice by
courier mail shall be effective on the date it is officially
recorded as delivered to the intended recipient by return receipt
or equivalent. All notices and other communications required or
contemplated by this Agreement delivered in person or sent
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by facsimile mail shall be deemed to have been delivered to and
received by the addressee and shall be effective on the date of
personal delivery or on the date sent, respectively. Notice not
given in writing shall be effective only if acknowledged in writing
by a duly authorized representative of the party to whom it was
given.
14.9 Attorneys' Fees. If any action or proceeding shall
be commenced to enforce this Agreement or any right arising in
connection with this Agreement, the prevailing party in such action
or proceeding shall be entitled to recover from the other party the
reasonable attorneys' fees, costs and expenses incurred by such
prevailing party in connection with such action or proceeding.
14.10 Integration. This Agreement, together with the
Warrant and Standstill Agreement, as amended, contains the entire
understanding of the parties with respect to its subject matter.
There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth
herein or therein with respect to any matter.
14.11 Waivers. No failure or delay on the part of either
party in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.
All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
14.12 Governing Law. This Agreement 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.
14.13 Counterparts. This Agreement 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.
14.14 Cooperation. The parties hereto shall each perform
such acts, execute and deliver such instruments and documents, and
do all such other things as may be reasonably necessary to
accomplish the transactions contemplated in this Agreement.
14.15 Section Headings and Captions. Section headings
and captions used in this Agreement are provided for convenience
only and shall not affect the Agreement's meaning or
interpretation.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement on the date first set forth above.
VWR CORPORATION
By: /s/ Jerrold B. Harris
Name: Jerrold B. Harris
Title: President and Chief Executive
Officer
EM INDUSTRIES, INCORPORATED
By: /s/ Walter W. Zywottek
Name: Walter W. Zywottek
Title: President and Chief Executive
Officer
<PAGE>
EXHIBIT A TO PURCHASE AGREEMENT
FORM OF DEBENTURE
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREUNDER. THIS DEBENTURE
IS NOT TRANSFERABLE EXCEPT TO AN AFFILIATE OF EM
INDUSTRIES, INCORPORATED. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A COMMON SHARE AND
DEBENTURE PURCHASE AGREEMENT DATED MAY 24, 1995 AND A
STANDSTILL AGREEMENT DATED FEBRUARY 27, 1995, AS AMENDED
______ __, 1995 (COPIES OF WHICH AGREEMENTS ARE ON FILE
WITH THE SECRETARY OF THE COMPANY) WHICH PROVIDE, AMONG
OTHER THINGS, FOR CERTAIN RESTRICTIONS ON TRANSFER
THEREOF. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SUCH AGREEMENTS SHALL BE VOID.
VWR CORPORATION
SUBORDINATED DEBENTURE
Due [Issue Date], 2005
[Issue Date], 1995 $135,000,000.00
No. 1
VWR CORPORATION, a Pennsylvania corporation (hereinafter
called the "Company"), for value received, hereby promises, subject
to Article 3 hereof, to pay to the Holder (as defined below) on
[Issue Date], 2005 the principal amount of One Hundred Thirty-five
Million and 00/100's Dollars ($135,000,000.00), in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for public and private debts, at the
principal office of the Company, and, subject to Article 3 hereof,
to pay interest on the unpaid portion of said principal amount on
each Interest Payment Date (as defined below) commencing on
[September 1,] 1995, at said office, pursuant to the terms and
conditions of, and in the manner described in, Section 2.1 hereof.
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ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The terms defined in this Article
whenever used in this Debenture shall have the respective meanings
hereinafter specified.
(a) "Administrative Agent" shall have the meaning set forth
in the Bank Credit Agreement.
(b) "Affiliate" shall have the meaning set forth in the
Purchase Agreement.
(c) "Bank Credit Agreement" shall mean that certain Credit
Agreement, dated [_____ __], 1995, by and among the Company,
certain financial institutions now or hereafter parties thereto and
Bank of America, NT&SA, CoreStates Bank, N.A. and PNC Bank, N.A. as
agents for such financial institutions, as the same may be amended,
supplemented or otherwise modified from time to time.
(d) "Bankruptcy Code" shall mean the Bankruptcy Reform Act of
1978, 11 U.S.C. et seq., or any successor statute thereto.
(e) "Commitment" shall have the meaning set forth in the Bank
Credit Agreement.
(f) "Common Shares" shall mean the common shares, par value
$1.00, of the Company.
(g) "Company" shall mean VWR Corporation, a Pennsylvania
corporation, and any successor corporation by merger,
consolidation, sale or exchange of all or substantially all of the
Company's assets, or otherwise.
(h) "Debenture" shall mean this Subordinated Debenture or
such other Subordinated Debenture or Debentures exchanged therefor
as provided in Section 2.2 herein.
(i) "Debenture Shares" shall have the meaning set forth in
Section 2.1(b) herein.
(j) "Deferred Interest" shall have the meaning set forth in
Section 2.1(c) herein.
(k) "Event of Default" shall have the meaning set forth in
Section 7.1 herein.
(l) "Final Debenture Share Delivery Date" shall have the
meaning set forth in Section 2.1(c) herein.
(m) "Holder" shall mean EM Industries, Incorporated or any
Affiliate of EM Industries, Incorporated to which this Debenture is
subsequently transferred in accordance with the terms provided
herein.
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(n) "Indebtedness" of any Person shall mean, without
duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person for the deferred
purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's
business);
(3) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments;
(4) all obligations of such Person created or arising
under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession
or sale of such property);
(5) all obligations of such Person as lessee under
leases that have been or should be, in accordance with
generally accepted accounting principles, recorded as capital
leases;
(6) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar
facilities;
(7) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of
any capital stock of or other ownership or profit interest in
such Person or any other Person or any warrants, rights or
options to acquire such capital stock;
(8) all Indebtedness of others referred to in clauses
(1) through (7) above guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or
purchase such Indebtedness or to advance or supply funds for
the payment or purchase of such Indebtedness, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss, (iii) to
supply funds to or in any manner invest in the debtor
(including any agreement to pay for property or services
irrespective of whether such property is received or such
services are rendered) or (iv) otherwise to assure a creditor
against loss; and
(9) all Indebtedness referred to in clauses (1) through
(7) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
(o) "Insolvency Event" shall have the meaning set forth in
Section 3.4.
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(p) "Interest Deferral Period" shall have the meaning set
forth in Section 2.1(c).
(q) "Interest Payment Date" shall have the meaning set forth
in Section 2.1(a).
(r) "Obligor" shall have the meaning set forth in Section
3.1.
(s) "Payment Blockage Notice" shall have the meaning set
forth in Section 3.5.
(t) "Payment Blockage Period" shall have the meaning set
forth in Section 3.5.
(u) "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
(v) "Purchase Agreement" means the Common Share and Debenture
Purchase Agreement, dated May 24, 1995, between the Company and
EM Industries, Incorporated.
(w) "Redemption Price" shall have the meaning set forth in
Section 2.4.
(x) "Representative" shall mean (i) with respect to
obligations under the Bank Credit Agreement, the Administrative
Agent and (ii) with respect to any other Senior Debt the holder of
such Senior Debt or any agent appointed for such Senior Debt under
the instrument under which such Senior Debt arose.
(y) "Restricted Security" shall have the meaning set forth in
Section 5.2.
(z) "SEC" shall mean the United States Securities and
Exchange Commission.
(aa) "Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations of the SEC thereunder,
all as in effect at the time.
(ab) "Senior Debt" shall mean:
(i) all obligations and liabilities of the Company
(whether for or on account of principal, reimbursement
obligations, accrued and unpaid interest (including without
limitation all interest accruing on and after an Insolvency
Event, whether or not such interest is allowed as a claim in
any proceeding or case involving the Company), fees, expenses,
indemnities and other amounts payable under or in connection
with the Bank Credit Agreement and all documents or
instruments executed in connection therewith, whether
outstanding on the date of issuance of this Debenture or
hereafter created, assumed or incurred, and shall include all
renewals, extensions, refinancings and refundings thereof from
time to time; provided that, Senior Debt under this clause (i)
shall not include any obligations of the Company for principal
or reimbursement obligations to the extent (but only to the
extent) such amounts exceed $300,000,000 in principal amount
in the aggregate (i.e., not including interest, fees,
expenses, indemnities and the like); or
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(ii) all obligations and liabilities of the Company under
any and all interest rate protection agreements to the extent
such obligations and liabilities are secured by the collateral
documents that secure the Company's obligations under the Bank
Credit Agreement (or any renewal, extension, refinancing or
refunding of the Bank Credit Agreement) and shall include all
renewals, extensions, refinancings and refundings thereof from
time to time.
(ac) "Standstill Agreement" shall mean that certain Standstill
Agreement, dated February 27, 1995, between the Company and
EM Industries, Incorporated, as assigned by EM Industries,
Incorporated to its wholly owned subsidiary, EM Laboratories,
Incorporated pursuant to an Assignment and Assumption Agreement
dated April 13, 1995, as such Standstill Agreement was amended on
_____ __, 1995.
(ad) "Subsidiary" shall mean any entity of which securities or
other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing
similar functions are owned directly or indirectly by the Company.
ARTICLE 2
INTEREST; EXCHANGES AND TRANSFER; REDEMPTION
SECTION 2.1 Payment of Interest.
___________________
(a) The Company shall pay to the Holder interest, subject to
Article 3 hereof, in the form and manner described in this Section
(computed on the basis of a year of 365 or 366 days, as the case
may be), on the unpaid principal amount hereof at the rate of 13%
per annum on March 1, June 1, September 1 and December 1 of each
year (subject to paragraphs (b) and (c) below) during the term of
this Debenture (each, an "Interest Payment Date"), commencing on
[September 1], 1995.
(b) Beginning on the first Interest Payment Date and on each
subsequent Interest Payment Date occurring on or before the Final
Debenture Share Delivery Date (as defined below), subject to
clauses (1) and (2) of this paragraph (b), the Company shall pay
interest to the Holder in the form of the aggregate number of
Common Shares equivalent to the dollar value of the interest due
and payable on such Interest Payment Date (collectively, the
"Debenture Shares"), at an issue price deemed to be $12.44 per
share (the "Debenture Share Issue Price"), until such time (the
"Final Debenture Share Delivery Date") as the Company shall have
issued and the Holder shall have received the number of Debenture
Shares equal to the sum of 1,410,772 plus [49.89%] of the aggregate
number of Common Shares (other than Debenture Shares) issued by the
Company during the period between the date hereof and the date
immediately preceding such Final Debenture Share Delivery Date.
(1) If, however, the total amount of accrued interest
due and payable on such final Interest Payment Date occurring
on or before the Final Debenture Share Delivery Date exceeds
the dollar amount equal to the product of the total number of
Debenture
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Shares received by the Holder on such Interest Payment Date
times the Debenture Share Issue Price, then such excess dollar
amount of accrued interest shall be deferred and added to the
amount of Deferred Interest (as defined below) and shall
become due and payable and shall be paid by the Company as
provided in paragraph (e) below.
(2) No fractional Common Shares will be issued as
Debenture Shares in connection with the interest payments
provided for in this paragraph (b), but in lieu of such
fractional shares, if any, on each Interest Payment Date
occurring before the Final Debenture Share Delivery Date an
amount of interest equal to the product of the applicable
fraction multiplied by the Debenture Share Issue Price shall
be deferred and added to the amount of Deferred Interest (as
defined below) and shall become due and payable and shall be
paid by the Company as provided in paragraph (e) below.
(c) On each Interest Payment Date occurring during the time
period subsequent to the Final Debenture Share Delivery Date but
prior to the second anniversary of the issuance of this Debenture
(the "Interest Deferral Period"), the interest due and payable on
this Debenture, plus such amounts of deferred interest, if any,
described in clauses (1) and (2) of paragraph (b) above, shall
accrue but shall be deferred (the "Deferred Interest"), and such
Deferred Interest shall become due and payable on [Issue Date],
2005, as described in paragraph (e) below.
(d) On each Interest Payment Date occurring subsequent to the
completion of the Interest Deferral Period, the Company shall pay
to the Holder interest on the unpaid portion of the principal
amount of this Debenture at the interest rate set forth above in
paragraph (a) above at the Company's principal office in the coin
or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts. On
[Issue Date], 2005, subject to paragraph (e) below, all interest
that shall have accrued on the unpaid principal balance of this
Debenture subsequent to the final Interest Payment Date shall
become due and payable, and the Company shall pay such accrued
interest to the Holder at the Company's principal office in the
coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts.
(e) On [Issue Date], 2005, in addition to the accrued
interest described in the second sentence of paragraph (d) above,
all Deferred Interest shall become due and payable and the Company
will pay the Holder the total amount of Deferred Interest, plus
interest thereon at the interest rate set forth above in paragraph
(a) above, at the Company's principal office in the coin or
currency of the United States of America as at the time of payment
shall be legal tender for public and private debts.
(f) If any amount of the principal of, or interest on, this
Debenture shall not be paid for a period of 30 days after the date
when due, the Company shall pay the Holder interest on such overdue
amount at a rate equal to the sum of the interest rate set forth
above in paragraph (a) above plus 5% per annum on the amount
thereof from the date when due until such amount shall have been
paid in full.
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SECTION 2.2. Exchange and Registration of Transfer of
Debentures. The Holder may, at its option, surrender this
Debenture at the office of the Company and receive in exchange
therefor a Debenture or Debentures, each in the denomination of
$1,000,000.00 or an integral multiple of $1,000,000.00 in excess
thereof, dated as of the date of this Debenture, and payable to
such transferee, or order, as may be designated by such Holder.
The aggregate principal amount of such Debenture or Debentures
exchanged in accordance with this Section shall equal the aggregate
unpaid principal amount of this Debenture as of the date of such
surrender; provided, however, that upon such exchange there shall
be filed with the Company the name and address for all purposes
hereof of the Holder or Holders of the Debenture or Debentures
delivered in such transfer. This Debenture, when presented for
registration of transfer or for exchange or payment, shall (if so
required by the Company) be duly endorsed by, or be accompanied by
a written instrument of transfer in form reasonably satisfactory to
the Company duly executed by, the Holder or its attorney duly
authorized in writing.
SECTION 2.3. Loss, Theft, Destruction of Debenture. Upon
receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Debenture and, in the case of any
such loss, theft or destruction, upon receipt of indemnity or
security reasonably satisfactory to the Company, or, in the case of
any such mutilation, upon surrender and cancellation of this
Debenture, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Debenture, a new Debenture of like
tenor and unpaid principal amount dated as of the date hereof.
This Debenture shall be held and owned upon the express condition
that the provisions of this Section are exclusive with respect to
the replacement of a mutilated, destroyed, lost or stolen Debenture
and shall preclude any and all other rights and remedies
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement of negotiable
instruments or other securities without their surrender.
SECTION 2.4. Optional Redemption by the Company. The Company
at its election, upon notice given as provided in Section 2.5, may
redeem this Debenture in whole or in part at any time if it remains
outstanding on or after [Issue Date], 2000 at the aggregate
principal amount outstanding so to be redeemed, together with
accrued interest thereon to the date fixed for such redemption (the
"Redemption Price"); provided, however, that the source of funds
for such redemption shall be the Company's cash flow and shall not
consist in whole or in part of any Indebtedness of the Company
incurred for the purpose of funding such redemption. Partial
redemptions shall be in an aggregate principal amount of
$1,000,000.00 or an integral multiple of $1,000,000.00 in excess
thereof. The amount to be redeemed shall be calculated according
to the respective unredeemed principal amount hereof.
SECTION 2.5 Notice of Redemptions. In the case of any
redemption of this Debenture, notice thereof shall be given in
writing to the Holder not fewer than 30 nor more than 60 days prior
to the date fixed for such redemption, which notice shall specify
the date fixed for such redemption and make reference to this
Section 2.5 pursuant to which such redemption is to be made. Such
notice of redemption and all other notices to be given to the
Holder shall be given by registered mail at its designated address.
Upon notice of any redemption being given as provided in this
Section, the Redemption Price shall become due and payable to the
Holder, at the office of the Company on the date
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specified in such notice and from and after such date (unless the
Company shall default in the payment of the Redemption Price)
interest shall cease to accrue on this Debenture or portion hereof
subject to such notice of redemption.
SECTION 2.6 Surrender of Debentures; Notation Thereon. Upon
any redemption of a portion of the principal amount of this
Debenture pursuant to Section 2.4, the Holder at its option may
require the Company to make and deliver, at the expense of the
Company (other than for transfer taxes, if any), upon surrender of
this Debenture, a new Debenture payable to the Holder, or to such
Person or Persons, or order, as may be designated by the Holder,
for the principal amount of this Debenture then remaining
unredeemed, dated as of the date to which interest has been paid on
the unredeemed principal amount of this Debenture (or, if no
interest has been paid hereon, then dated as of the date of this
Debenture), or may present this Debenture to the Company for
notation hereon of the payment of the portion of the principal
amount so redeemed. The Company may, as a condition of payment of
all or any of the principal of or interest on this Debenture,
require the Holder to present this Debenture for notation of such
payment and, if this Debenture be paid in full, require the
surrender hereof.
SECTION 2.7. Who Deemed Absolute Owner. The Company may deem
the Person in whose name this Debenture shall be registered upon
the registry books of the Company to be, and may treat it as, the
absolute owner of this Debenture (whether or not this Debenture
shall be overdue) for the purpose of receiving payment of or on
account of the principal of this Debenture and for all other
purposes, and the Company shall not be affected by any notice to
the contrary. All such payments shall be valid and effectual to
satisfy and discharge the liability upon this Debenture to the
extent of the sum or sums so paid.
ARTICLE 3
SUBORDINATION
The payment of this Debenture shall be subject to the
following restrictions:
SECTION 3.1. Agreement to Subordinate. Anything in this
Debenture to the contrary notwithstanding, the Company agrees, and
by accepting this Debenture the Holder agrees, that the
indebtedness evidenced by this Debenture is subordinate and subject
in right of payment, to the extent and in the manner provided in
this Article 3, to the prior payment in full in cash of all Senior
Debt and that the subordination is for the benefit of and
enforceable by the holders of Senior Debt. This Debenture shall in
all respects rank pari passu with all other present and future
unsecured and unsubordinated obligations of the Company, and only
Senior Debt shall rank senior to this Debenture. The subordination
provided herein is absolute, unconditional and irrevocable
irrespective of:
(a) any failure of, or delay by, a holder of Senior Debt:
(i) to assert any claim or demand or to enforce any
right, power or remedy against the Company or any other Person
primarily or secondarily liable with respect to the Senior
Debt (an "Obligor"); or
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(ii) to exercise any right, power or remedy against the
Company or any Obligor or any collateral securing any Senior
Debt;
(b) any change in the time, manner, or place of payment of,
or in any other term of, all or any Senior Debt;
(c) any reduction, limitation, impairment, or termination of
any Senior Debt for any reason, including any claim of waiver,
release, surrender, alteration or compromise;
(d) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms
of the Bank Credit Agreement or any other document under which
Senior Debt is incurred;
(e) any addition, exchange, release, surrender or
nonperfection of any collateral securing any Senior Debt; or
(f) any other circumstances which might otherwise constitute
a defense available to, or a legal or equitable discharge of, or
otherwise prejudicially affect the subordination herein provided.
SECTION 3.2. Reinstatement, etc. The subordination provisions
of this Article 3 shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in
part) of any Senior Debt is rescinded or must otherwise be restored
by the holder of such Senior Debt upon any Insolvency Event (as
herein defined) or otherwise, all as though such payment has not
been made.
SECTION 3.3. Certain Waivers. The Holder hereby waives
promptness, diligence, notice of acceptance, and any other notice
with respect to any of the Senior Debt and any requirement that any
holder of the Senior Debt (or any agent therefor) protect, secure,
perfect, or insure any lien, security interest or similar
encumbrance or any property subject thereto, or exhaust any right
or take any action against the Company, any Obligor or any other
person or any collateral securing any Senior Debt; provided, that
the Company shall send, or cause the Administrative Agent to send,
to the Holder, at the following address (or such other address as
the Holder shall notify the Company and the Administrative Agent in
writing): c/o EM Industries, Incorporated, 5 Skyline Drive,
Hawthorne, New York 10532, a copy of any Payment Blockage Notice or
notice of acceleration of the principal amount owed under the Bank
Credit Agreement promptly after the same is sent by the
Administrative Agent to the Company; provided, that the failure of
the Company or the Administrative Agent to send to the Holder a
copy of such notice shall not affect or impair in any respect the
rights of any holder of Senior Debt hereunder or the extent or
scope of the subordination provisions herein.
SECTION 3.4. Insolvency, Bankruptcy, Dissolution of Company.
Upon any payment or distribution (whether in cash, securities or
other property) to creditors of the Company in the event of (i) any
winding-up, insolvency, bankruptcy, liquidation or reorganization
of the Company, whether voluntary or involuntary, (ii) any
proceeding or case for reorganization, liquidation, bankruptcy,
dissolution or other winding-up of the Company or
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<PAGE>
its assets, whether or not involving insolvency or bankruptcy,
(iii) any assignment by the Company for the benefit of creditors or
(iv) any receivership or other similar proceeding or any
marshalling of assets of the Company (each, an "Insolvency Event"):
(a) all Senior Debt shall first be paid in full in cash
(including without limitation the cash collateralizing at 105% of
the face amount of any obligations under outstanding letters of
credit) before the Holder shall be entitled to receive any payment
or other distribution on or in respect of this Debenture; and
(b) until all Senior Debt is paid in full in cash (including
without limitation the cash collateralizing at 105% of the face
amount of any obligations under outstanding letters of credit), any
payment or distribution to which the Holder would be entitled but
for this Article 3 (whether in cash, property, securities or
whatever) shall be made to holders of Senior Debt as their
interests may appear, except that the Holder may receive shares of
the Company as reorganized or readjusted or securities of the
Company or any other corporation if (i) in the case of securities,
the payment of such securities is subordinate to Senior Debt to at
least the same extent as this Debenture is subordinate to Senior
Debt and (ii) in the case of stock or securities, such stock or
securities are issued pursuant to a plan of reorganization which
does not alter, amend or impair (as defined in Section 1124 of the
Bankruptcy Code) the rights of any holder of Senior Debt.
SECTION 3.5. Default on Senior Debt
(a) The Company may not pay the principal of, premium, if
any, or interest on, this Debenture or make any deposit in respect
of this Debenture and may not repurchase, redeem or otherwise
retire this Debenture (collectively, "pay this Debenture") if:
(i) any Senior Debt is not paid when due,
(ii) there shall be a default under the Bank Credit
Agreement with respect to the following financial covenants,
which covenants are currently set forth in Sections [___]
through [___] therein: (v) Minimum Net Worth, (w) Minimum
Consolidated Fixed Charge Coverage, (x) Minimum Senior
Leverage Ratio, (y) Minimum EBITDA or (z) Minimum Interest
Coverage, or
(iii) any other default on Senior Debt occurs and the
maturity of such Senior Debt is accelerated in accordance with
its terms unless, in each case, the default has been cured or
waived and any such acceleration has been rescinded or such
Senior Debt has been paid in full in cash (including without
limitation the cash collateralizing at 105% of the face amount
of any obligations under outstanding letters of credit) and
any commitment in connection with such Senior Debt to extend
further loans or credit to the Company or any Affiliate
thereof shall have been terminated (including without
limitation, with respect to obligations under the Bank Credit
Agreement, the termination of the Commitment).
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During the continuation of any default (other than a default
described in clauses (i), (ii) or (iii) above) with respect to any
Senior Debt, pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice
as may be required to effect such acceleration) or the expiration
of any applicable grace periods, the Company may not pay this
Debenture for a period (a "Payment Blockage Period") commencing
upon the receipt by the Company of written notice of such default
from a Representative of such Senior Debt specifying an election to
effect a Payment Blockage Period (a "Payment Blockage Notice") and
ending 179 days thereafter (or earlier if such Payment Blockage
Period is terminated (i) by written notice to the Company from the
Representative which gave such Payment Blockage Notice, (ii) by
repayment in full in cash of such Senior Debt (including without
limitation the cash collateralizing at 105% of the face amount of
any obligations under outstanding letters of credit) and any
commitment in connection with such Senior Debt to extend further
loans or credit to the Company or any Affiliate thereof shall have
been terminated (including without limitation, with respect to
obligations under the Bank Credit Agreement, the termination of the
Commitment) or (iii) because the default specified in such Payment
Blockage Notice is no longer continuing, as verified in writing by
the Representative that sent such Payment Blockage Notice).
Notwithstanding the immediately preceding sentence (but subject to
the provisions contained in the first sentence of this Section),
unless the holders of such Senior Debt or the Representative of
such holders shall have accelerated the maturity of such Senior
Debt, the Company shall resume payments (including any missed
payments) on this Debenture after the end of such Payment Blockage
Period unless such payment is otherwise prohibited under this
Article 3. Multiple Payment Blockage Periods may be imposed so
long as (x) the cumulative period covered by all such Payment
Blockage Periods does not exceed 179 days in any 365 consecutive-
day period and (y) no more than one Payment Blockage Period may
result from the same default.
(b) The failure to make a payment or distribution on this
Debenture by reason of this Article 3 shall not be construed or
deemed to prevent the occurrence of an Event of Default hereunder;
provided that any acceleration of payment of this Debenture
resulting therefrom shall be rescinded if and when the following
conditions shall be simultaneously satisfied: (i) each payment or
distribution which gave rise to such event of default shall be
made, and (ii) no other such event of default shall have occurred.
SECTION 3.6. Subordinated Acceleration; Standstill.
(a) Holder agrees to give the Administrative Agent under the
Bank Credit Agreement not less than 5 days' prior notice of its
intention to accelerate the maturity of this Debenture pursuant to
Section 6.2 hereof.
(b) Holder will not for a period of 90 days following an
acceleration of this Debenture (other than such acceleration
resulting from the acceleration of a majority in principal amount
of the then outstanding amount of Senior Debt) pursue or exercise
any other right, power or remedy under this Debenture, the Purchase
Agreement or applicable law.
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SECTION 3.7. Turnover. If Holder receives any payment or
other distribution on this Debenture (whether in cash, property,
securities or whatever) at a time when such payment or distribution
should not have been made to Holder by reason of this Article 3,
such payment or distribution shall be deemed to have been received
and held in trust for the benefit of the holders of the Senior
Debt, and shall be segregated from other property of Holder and be
paid and delivered as promptly as practicable to the holders of the
Senior Debt, as their interests may appear, for application to, or
collateral for, the payment or prepayment of the Senior Debt.
SECTION 3.8. Subrogation. If all Senior Debt has been paid in
full in cash (including without limitation the cash collateralizing
at 105% of the face amount of any obligations under outstanding
letters of credit) and any commitment in connection with such
Senior Debt to extend further loans or credit to the Company or any
Affiliate thereof shall have been terminated (including without
limitation, with respect to obligations under the Bank Credit
Agreement, the termination of the Commitment), then until this
Debenture is paid in full, Holder shall be subrogated to all rights
of holders of Senior Debt, including the right to receive payments
or distributions in respect thereof. A payment or distribution
made to holders of Senior Debt pursuant to this Article 3 which
otherwise would have been made to Holder shall not be construed or
deemed, as between the Company and Holder, a payment or
distribution in respect of Senior Debt.
SECTION 3.9. Relative Rights. This Article 3 defines the
relative rights of Holder and the holders of Senior Debt. Nothing
herein shall:
(a) impair, as between the Company and Holder, the obligation
of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on this Debenture in
accordance with its terms; or
(b) except as otherwise expressly provided herein, prevent
Holder from exercising its available remedies upon a default,
subject to the rights of holders of Senior Debt to receive
distributions otherwise payable to Holder.
SECTION 3.10. Subordination May Not be Impaired. No right of
any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by this Debenture shall at any time in any
way be prejudiced or impaired by an act or omission in good faith
by a holder of Senior Debt (or any agent therefor); or by any act
or failure to act by the Company or by the Company's failure to
comply with this Debenture.
SECTION 3.11. Reliance by Holders of Senior Debt on
Subordination Provisions. Holder by accepting this Debenture
acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to
each holder of any Senior Debt, whether such Senior Debt was
created or acquired before or after the issuance of this Debenture,
to acquire and continue to hold, or to continue to hold, such
Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such
Senior Debt.
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ARTICLE 4
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS
SECTION 4.1. Restrictive Legend. Unless and until otherwise
permitted by this Section, any certificate for Debenture Shares
initially issued pursuant to this Debenture and any certificate for
Common Shares issued to any subsequent transferee of any such
certificate, shall be stamped or otherwise imprinted with a legend
in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A COMMON
SHARE AND DEBENTURE PURCHASE AGREEMENT DATED MAY 24, 1995
AND A STANDSTILL AGREEMENT DATED FEBRUARY 27, 1995, AS
AMENDED _____ __, 1995 (COPIES OF WHICH AGREEMENTS ARE ON
FILE WITH THE SECRETARY OF THE COMPANY) WHICH PROVIDE,
AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON TRANSFER
THEREOF. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SUCH AGREEMENTS SHALL BE VOID.
SECTION 4.2. Restrictions on Transfer; Notice of Proposed
Transfers; Opinion of Counsel.
(a) This Debenture is not transferable to any Person who
is not an Affiliate of EM Industries, Incorporated.
(b) Prior to any transfer or attempted transfer of this
Debenture or any Debenture Shares held by a Holder before such
Debenture or Debenture Shares have been registered under the
Securities Act in accordance with the terms of this Debenture, the
Holder shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer. Any sale or other
transfer not in compliance herewith shall be void.
(c) For so long as the transfer restrictions set forth
in the Purchase Agreement, Standstill Agreement or this Debenture
are in effect, any certificate evidencing Debenture Shares issued
upon transfer (each, a "Restricted Security") shall bear the
restrictive legend set forth in Section 4.1, provided, however,
that in the event counsel for the Company shall opine that the
removal of any legend (or part thereof) required to appear on any
certificate pursuant to the Purchase Agreement from the
certificates representing the Common Shares is permissible, the
Company shall remove from such certificates all legends no longer
required and shall rescind any stop-transfer instructions
previously communicated to its transfer agent relating to such
certificates.
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<PAGE>
SECTION 4.3. Registration Rights. The Company shall have no
obligation to the Holder of any Restricted Security to cause or
consent to the registration of any such security under the
Securities Act, except to the extent set forth in the Standstill
Agreement.
ARTICLE 5
COVENANTS
The Company covenants and agrees that so long as this
Debenture shall be outstanding:
SECTION 5.1. Payment of Debenture; Source of Funds. The
Company will punctually pay or cause to be paid the principal of,
or interest on, this Debenture according to the terms hereof. The
source of funds for all such payments of principal and interest
shall be the Company's cash flow and shall not consist in whole or
in part of any Indebtedness of the Company.
SECTION 5.2. Notice of Default. If any one or more events
occur which constitute or which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default or if
the Holder shall demand payment or take any other action permitted
upon the occurrence of any such Event of Default, the Company will
forthwith give notice to the Holder, specifying the nature and
status of the Event of Default or other event or of such demand or
action, as the case may be.
SECTION 5.3. Sufficient Number of Authorized Common Shares.
The Company will at all times have authorized and reserved for
issuance a sufficient number of Common Shares to provide for the
issuance of the Debenture Shares as provided herein.
SECTION 5.4. Insurance. The Company will carry and maintain
in full force and effect at all times with insurers the Company
reasonably believes to be financially sound and reputable such
insurance in such amounts as is customary in the respective
industries of the Company and such subsidiaries.
ARTICLE 6
REMEDIES
SECTION 6.1. Events of Default. "Event of Default" wherever
used herein means any one of the following events:
(a) default in the due and punctual payment of the
principal of, interest on, or any other amount owing in respect of,
this Debenture when and as the same shall become due and payable,
and continuance of such default for a period of thirty (30)
calendar days; or
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<PAGE>
(b) default in the performance or observance of any
covenant or agreement of the Company in this Debenture (other than
a covenant or agreement a default in the performance of which is
specifically provided for elsewhere in this Section), and the
continuance of such default for a period of thirty (30) calendar
days after there has been given to the Company by a Holder a
written notice specifying such default and requiring it to be
remedied; or
(c) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any
Subsidiary a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy
Code or any other applicable Federal or state law, or appointing a
receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in
effect for a period of 90 calendar days; or
(d) the institution by the Company or any Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or state law, or
the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in
furtherance of any such action; or
(e) any principal with respect to other Indebtedness
(other than Senior Debt) of the Company or any Subsidiary exceeding
$1,000,000 is not repaid within any applicable grace period after
its final maturity date or becomes due and payable by reason of
default before its final maturity date.
SECTION 6.2. Acceleration of Maturity. If an Event of Default
occurs and is continuing, then and in every such case the Holder
may, subject to the restrictions contained in Article 3, declare
the principal of this Debenture to be due and payable immediately,
by a notice in writing to the Company, and upon any such
declaration the principal of this Debenture shall become
immediately due and payable.
SECTION 6.3. Remedies Not Waived. No course of dealing
between the Company and the Holder or any delay in exercising any
rights hereunder shall operate as a waiver by the Holder.
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ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Register. The Company shall keep at its
principal office a register in which the Company shall provide for
the registration of this Debenture.
SECTION 7.2. Governing Law. This Debenture shall be
exclusively governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania without reference to the
conflicts of laws principles thereof.
SECTION 7.3. Headings. The headings of the Articles and
Sections of this Debenture are inserted for convenience only and do
not constitute a part of this Debenture.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Debenture
to be signed by its duly authorized officer under its corporate
seal, attested by its duly authorized officer, on the date of this
Debenture.
VWR CORPORATION
By:_________________________________
Name:
Title:
Attest
By:_________________________________
Name:
Title:
[Corporate Seal]
A-17
<PAGE>
EXHIBIT B OF PURCHASE AGREEMENT
FORM OF OPINION OF COUNSEL OF THE COMPANY
[Drinker Biddle & Reath Letterhead]
[Closing Date], 1995
EM Industries, Incorporated
5 Skyline Drive
Hawthorne, New York 10532
EM Laboratories, Incorporated
5 Skyline Drive
Hawthorne, New York 10532
Ladies and Gentlemen:
We have acted as counsel for VWR Corporation, a
Pennsylvania corporation (the "Company"), in connection with the
Common Share and Debenture Purchase Agreement dated May 24, 1995
(the "Purchase Agreement") by and between the Company and EM
Industries, Incorporated, a New York corporation (the "Purchaser"),
the related subordinated debenture (the "Debenture"), and Amendment
Number One to the Standstill Agreement, dated _____ __, 1995 (the
"Amendment," and collectively with the Purchase Agreement and the
Debenture, the "Transaction Documents") by and between the Company
and the Purchaser, and the transactions and agreements contemplated
thereby. This opinion is furnished to you pursuant to Section 5.3
of the Purchase Agreement. Except as otherwise indicated,
capitalized terms used and not otherwise defined herein have the
meanings defined in the Purchase Agreement.
* * *
Based upon and subject to the foregoing and the
qualifications set forth below, we are of the opinion that:
(a) The Company is a corporation validly subsisting
under the laws of the Commonwealth of Pennsylvania.
(b) The Company is qualified to transact business and is
in good standing as a foreign corporation in the following
states: Illinois, California and New Jersey.
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<PAGE>
(c) The Company has the corporate power to conduct its
business as, to the best of our knowledge, it is now
conducted, to execute and deliver the Transaction Documents to
which it is a party and to perform its obligations thereunder.
The execution, delivery and performance by the Company of the
Transaction Documents to which it is a party have been duly
authorized by all necessary corporate action on the part of
the Company.
(d) Each of the Transaction Documents to which the
Company is a party has been duly executed and delivered by the
Company and is a legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms.
(e) The execution and delivery by the Company of the
Transaction Documents and the consummation by the Company of
the Closing do not constitute a breach of or default under any
agreement or other instrument to which the Company is a party
and which has been filed by the Company in its Form 10-K with
respect to the year ended December 31, 1994 or in its Form 10-
Q with respect to the quarter ended March 31, 1995 (or
incorporated by reference therein) or violate the articles of
incorporation or bylaws of the Company or any Pennsylvania or
federal law or regulation or any judgment, writ, injunction,
decree, order or ruling known to us of any court or government
authority binding on the Company.
(f) The authorized capital of the Company consists of
30,000,000 authorized common shares, par value $1.00 per share
and 1,000,000 preferred shares par value $1.00 per share. We
have been informed by the Company that as of _____ __, 1995,
the Company's stock records show that there were _____ common
shares and _____ preferred shares of the Company outstanding
and ____ common shares and ____ preferred shares of the
Company that have been issued and are held by the Company as
treasury shares.
(g) The Purchased Shares to be issued pursuant to the
Purchase Agreement have been duly authorized for issuance and,
when issued upon payment therefor in accordance with the terms
of the Purchase Agreement, the Purchased Shares will be
validly issued, fully paid and nonassessable by the Company.
(h) An indefinite number of shares sufficient to enable
the Company to issue the Debenture Shares have been duly
authorized for issuance and, when issued in accordance with
the terms of the Debenture, such shares will be validly
issued, fully paid and nonassessable by the Company.
(i) Except as contemplated or provided by the
Transaction Documents, no consent, approval or authorization
of or filing with (other than post-Closing filings pursuant to
state or federal law which, whether made or not made, will
have no effect on the finality of the transactions
contemplated by the Transaction Documents) any Pennsylvania or
federal governmental authority is required in connection with
the execution or delivery by the Company of the Transaction
Documents or the sale of the Purchased Shares and the
Debenture to the Purchaser or the issuance of the Debenture
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<PAGE>
Shares to the Purchaser, except for any actions which may be
required pursuant to state securities or "blue sky" laws.
(j) With respect to the Rights Agreement, dated as of
May 20, 1988, as amended February 23, 1995 (the "Rights
Agreement"), between the Company and First Interstate Bank of
Washington, N.A., as Rights Agent, (a) the Standstill
Agreement, as amended by the Amendment on [Closing Date],
1995, constitutes a "written agreement with the Company
(approved by at least a majority of the Continuing Directors)"
as described in Section 1(a), as amended, of the Rights
Agreement, and (b) the Purchaser's acquisition of the
Purchased Shares and the Debenture, the issuance of the
Debenture Shares to the Purchaser as provided in the
Debenture, pursuant to the terms of the Transaction Documents,
will not cause the Purchaser to become an "Acquiring Person"
(as defined in the Rights Agreement).
(k) The provisions of Section 2538(a) and of Subchapters
E, F, G and H of Chapter 25 of the Pennsylvania Business
Corporation Law of 1988 (15 Pa. C.S.), as amended, are not
applicable to the Company.
Furthermore, we advise you that, to the best of our
knowledge, except as disclosed in or pursuant to the Purchase
Agreement, there are no options, warrants, conversion privileges or
other rights presently outstanding to purchase or otherwise acquire
any shares or other securities of the Company nor any outstanding
contractual obligations of the Company to repurchase, redeem or
otherwise acquire any of its outstanding shares or other
securities.
The opinions set forth above are subject to the following
qualifications and limitations:
We express no opinion as to the effect of the
application of equitable principles (whether considered in a
proceeding at law or in equity) or of bankruptcy, insolvency,
reorganization, moratorium and other laws now or hereafter in
effect affecting the enforcement of creditors' rights and remedies
(including those relating to fraudulent conveyance and transfers)
or of Section 721 of Title VII of the Defense Production Act of
1950, as amended by Section 5021 of the Omnibus Trade and
Competitiveness Act of 1988;
We express no opinion with respect to any
indemnification or contribution provisions contained in any of the
Transaction Documents to the extent such provisions may be
construed to include indemnification or contribution for liability
of an indemnified party arising under federal or state securities
laws or for liabilities by reason of an indemnified party's
negligence or willful misconduct;
We express no opinion with respect to the
enforceability of Sections 6.1, 6.3 and 6.4 of the Standstill
Agreement, as amended, to the extent they purport to bind the Board
of Directors of the Company or any committee thereof, or the
enforceability of Sections 6.1 or 6.4 of the Standstill Agreement,
as amended, to the extent they require the Board of Directors of
the Company to elect or cause to be elected to the Board of
Directors or a
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<PAGE>
Committee of the Board of Directors any person the election of whom
would be inconsistent with the fiduciary duties of the Board of
Directors of the Company.
We express no opinion concerning the laws of any
jurisdiction other than the law of the Commonwealth of
Pennsylvania, and the federal law of the United States of America,
and we express no opinion on the antitrust laws of any
jurisdiction.
* * *
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<PAGE>
EXHIBIT C OF PURCHASE AGREEMENT
FORM OF OPINION OF COUNSEL OF THE PURCHASER
[Rogers & Wells Letterhead]
[Closing Date], 1995
VWR Corporation
1310 Goshen Parkway
West Chester, Pennsylvania 19380
Ladies and Gentlemen:
We have acted as counsel for EM Industries, Incorporated,
a New York corporation ("EMI") and EM Laboratories, Incorporated
("EM Laboratories"), a New York corporation and wholly owned
subsidiary of EMI, in connection with the Common Share and
Debenture Purchase Agreement dated May 24, 1995 (the "Purchase
Agreement") by and between VWR Corporation, a Pennsylvania
corporation (the "Company") and EMI; Amendment No. 1 to the
Standstill Agreement dated May 24, 1995 (the "Amendment") by and
among the Company, EMI, and EM Laboratories; and the Assignment and
Assumption Agreement dated _____ __, 1995 (the "Assignment") by and
between EMI, as assignor, and EM Laboratories, as assignee, and the
transactions and agreements contemplated thereby. This opinion is
furnished to you pursuant to Section 6.6 of the Purchase Agreement.
Except as otherwise indicated, capitalized terms used and not
otherwise defined herein have the meanings defined in the Purchase
Agreement.
We have examined such corporate records, certificates and
other documents and such questions of law as we have considered
necessary or appropriate for the purposes of this opinion. We are
members of the bar of the State of New York. The opinions given
below are limited to matters arising under the laws of the State of
New York and the federal laws of the United States of America, and
we express no opinion on the antitrust laws of any jurisdiction.
We have assumed that the Purchase Agreement, the Amendment and the
Assignment (collectively, the "Agreements") and any transactions
contemplated thereby are governed by the laws of the State of New
York. No opinion is expressed with respect to the laws of any
other jurisdiction.
We have in all cases assumed, without investigation, the
genuineness of all signatures, the authenticity of documents or
instruments submitted to us as originals, the
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<PAGE>
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the correctness of all
statements of fact contained therein.
Based upon and subject to the foregoing and the
qualifications set forth below, we are of the opinion that:
(l) EMI is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
New York.
(m) EMI has all requisite power and authority to execute
and deliver the Agreements and to carry out the transactions
contemplated thereby.
(n) The execution, delivery and performance by EMI of
the Agreements have been duly authorized by all requisite
corporate action.
(o) The Agreements have been duly executed and delivered
by EMI and constitute the valid and binding obligations of
EMI, enforceable against EMI in accordance with their
respective terms, subject to bankruptcy, insolvency,
moratorium, reorganization and other similar laws relating to
or affecting the enforcement of creditors' rights, to general
equity principles and to Section 721 of Title VII of the
Defense Production Act of 1950, as amended by Section 5021 of
the Omnibus Trade and Competitiveness Act of 1988, and we
express no opinion with respect to any indemnification or
contribution provisions contained in the Agreements to the
extent such provisions may be construed to include
indemnification or contribution for liability of an
indemnified party under federal or state securities laws or
for liabilities by reason of an indemnified party's negligence
or willful misconduct.
(p) Such execution and delivery and the consummation of
the Agreements will not conflict with or violate the
Certificate of Incorporation or By-Laws of EMI; or any
provision of any applicable law or regulation or of any
judgment, injunction, order or decree binding upon EMI or to
which EMI is a party; or, to our knowledge, result in a
violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration or
otherwise change the existing rights or obligations of any
party thereto) under any term, condition or provision of any
note, bond, mortgage, indenture, lease, agreement or other
instrument or obligation to which EMI is a party or by which
EMI is bound.
(q) EMI has full corporate power to carry on its
business as such business is conducted on the date hereof and
to own, lease and operate its properties.
(r) Except as contemplated or provided by the
Agreements, no consent, approval or authorization of or filing
with (other than post-Closing filings pursuant to state or
federal law which, whether made or not made, will have no
effect on the finality of the transactions contemplated by the
Agreements) any New York or federal governmental authority is
required in connection with the execution or delivery by EMI
C-2
<PAGE>
of the Agreements or the purchase of the Shares and the
Debenture by EMI, except for any actions which may be required
pursuant to state securities laws or "blue sky" laws.
(s) EM Laboratories is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of New York.
(t) EM Laboratories has all requisite power and
authority to execute and deliver the Amendment and the
Assignment and to carry out the transactions contemplated
thereby.
(u) The execution, delivery and performance by EM
Laboratories of the Amendment and the Assignment have been
duly authorized by all requisite corporate action.
(v) The Amendment and the Assignment have been duly
executed and delivered by EM Laboratories and constitute the
valid and binding obligation of EM Laboratories, enforceable
against EM Laboratories in accordance with their respective
terms, subject to bankruptcy, insolvency, moratorium,
reorganization and other similar laws relating to or affecting
the enforcement of creditors' rights, to general equity
principles and to Section 721 of Title VII of the Defense
Production Act of 1950, as amended by Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988, and we express
no opinion with respect to any indemnification or contribution
provisions contained in the Agreements to the extent such
provisions may be construed to include indemnification or
contribution for liability of an indemnified party under
federal or state securities laws or for liabilities by reason
of an indemnified party's negligence or willful misconduct.
(w) Such execution and delivery and the consummation of
the Amendment and the Assignment will not conflict with or
violate the Certificate of Incorporation or By-Laws of EM
Laboratories; or any provision of any applicable law or
regulation or of any judgment, injunction, order or decree
binding upon EM Laboratories or to which EM Laboratories is a
party; or, to our knowledge, result in a violation or breach
of, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation or acceleration or otherwise change the existing
rights or obligations of any party thereto) under any term,
condition or provision of any note, bond, mortgage, indenture,
lease, agreement or other instrument or obligation to which EM
Laboratories is a party or by which EM Laboratories is bound.
(x) EM Laboratories has full corporate power to carry on
its business as such business is conducted on the date hereof
and to own, lease and operate its properties.
(y) Except as contemplated or provided by the Amendment
and the Assignment, no consent, approval or authorization of
any New York or federal governmental authority is required in
connection with the execution or delivery by EM Laboratories
of the Amendment or the Assignment.
C-3
<PAGE>
(z) One hundred percent of the issued and outstanding
stock of EM Laboratories is owned by EMI. To our knowledge,
100% of the issued and outstanding stock of EMI is owned by
Merck AG, Zug, Switzerland, which is 55.17% owned by Merck &
Cie. KG, Altdorf, Switzerland, which is 99.84% owned by E.
Merck, Darmstadt, Federal Republic of Germany.
In rendering the opinions expressed in this letter, we
have assumed, without investigation, that the Company (i) is duly
organized and validly existing and in good standing under the laws
of the jurisdiction of its organization and formation, (ii) has the
requisite corporate power and authority and has taken the corporate
action necessary to execute and deliver the Purchase Agreement, the
related Debenture and the Amendment and to consummate the
transactions contemplated thereby and (iii) has duly authorized,
executed and delivered the Agreements and the Debenture. We have
also assumed, without investigation, that the Agreements and the
Debenture constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms.
When reference is made in this opinion to "knowledge," it
means the actual knowledge of those partners and associates who
have given substantive attention to the Agreements and the
agreements and transactions contemplated thereby.
This opinion is solely for the information of the
addressee hereof, and is not to be quoted in whole or in part or
otherwise referred to or filed with any governmental agency or
other person without our prior written consent. Other than the
addressee hereof, no one is entitled to rely on this opinion.
This opinion is effective as of the date hereof. No
expansion of our opinion may be made by implication or otherwise,
and we express no opinion other than is herein expressly set forth.
We do not undertake to advise you of any matter within the scope of
this letter that comes to our attention after the date of this
letter and disclaim any responsibility to advise you of any future
changes in law or fact that may affect the above opinion.
Very truly yours,
C-4
<PAGE>
EXHIBIT D OF PURCHASE AGREEMENT
FORM OF AMENDMENT TO STANDSTILL AGREEMENT
AMENDMENT NUMBER ONE TO THE STANDSTILL AGREEMENT
This Amendment Number One to the Standstill Agreement
(the "Amendment") made this [_____] day of [_______], 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. 8 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 9 To Article 1 there shall be added the following sentence,
which shall be set forth immediately after the caption
"DEFINITIONS":
D-1
<PAGE>
"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 10 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 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 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 acquisition of the Common Stock and
Debenture by Purchaser is consummated pursuant to the
terms of the Common Share and Debenture Purchase
Agreement."
SECTION 11 The second sentence of Section 2.2 shall be amended to
read in its entirety as follows:
"The 'Percentage Limitation' shall be 49.9% of the Common
Stock Equivalents."
SECTION 12 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%."
SECTION 13 Section 2.10 shall be amended to read in its entirety
as follows:
"2.10 Requirements for Tender Offers. Whenever
Purchaser shall make a 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:
D-2
<PAGE>
"(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 14 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 [CLOSING DATE], 1995. COPIES
OF SUCH AGREEMENTS ARE ON FILE AT THE RESPECTIVE OFFICES
OF VWR CORPORATION AND EM INDUSTRIES INCORPORATED."
SECTION 15 Section 6.1 shall be amended to read in its entirety as
follows:
"6.1. Size of Board; Proportionate Representation.
15.1 On or before the 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.
"15.2 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 16 Section 6.2 shall be amended to read in its entirety as
follows:
D-3
<PAGE>
"6.2 Terms. EMI shall advise Company as necessary, from
time to time, 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 17 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 18 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."
SECTION 19 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 20 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.
D-4
<PAGE>
IN WITNESS WHEREOF, VWR, EMI and EM Laboratories have
caused this Amendment to be executed on the date first above
written.
VWR CORPORATION
By:_____________________________________
Name:
Title:
EM INDUSTRIES, INCORPORATED
By:_____________________________________
Name:
Title:
EM LABORATORIES, INCORPORATED
By:_____________________________________
Name:
Title:
D-5
<PAGE>
_____________________________________________________________
COMMON SHARE AND DEBENTURE PURCHASE AGREEMENT
_____________________________________________________________
by and between
VWR CORPORATION
and
EM INDUSTRIES, INCORPORATED
May 24, 1995
<PAGE>
TABLE OF CONTENTS
_________________
Page
____
ARTICLE 1. DEFINITIONS. . . . . . . . . . . . . . . . 3
ARTICLE 2. SALE AND PURCHASE; CLOSING . . . . . . . . 4
2.1 Sale and Purchase of the Common Shares and
Debenture. . . . . . . . . . . . . . . . . . . 4
2.2 Closing. . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. . . . . . . . . . . . . . . . . . 5
3.1 Organization and Good Standing . . . . . . . . 5
3.2 Authorization. . . . . . . . . . . . . . . . . 5
3.3 Baxter Asset Purchase. . . . . . . . . . . . . 5
3.4 No Conflict with Law or Documents. . . . . . . 5
3.5 Capital Stock of the Company . . . . . . . . . 6
3.6 Valid Issuance . . . . . . . . . . . . . . . . 6
3.7 Consents and Approvals . . . . . . . . . . . . 6
3.8 Private Offering . . . . . . . . . . . . . . . 7
3.9 Additional Securities Law Matters. . . . . . . 7
3.10 Articles of Incorporation and Bylaws . . . . . 7
3.11 Subsidiaries . . . . . . . . . . . . . . . . . 7
3.12 SEC Filings. . . . . . . . . . . . . . . . . . 7
3.13 Financial Statements . . . . . . . . . . . . . 8
3.14 Documents Delivered. . . . . . . . . . . . . . 9
3.15 Proceedings and Litigation . . . . . . . . . . 9
3.16 Insurance. . . . . . . . . . . . . . . . . . . 9
3.17 Intellectual Property Rights . . . . . . . . . 9
3.18 Prior Registration Rights. . . . . . . . . . . 9
3.19 Environmental Matters. . . . . . . . . . . . . 9
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER. . . . . . . . . . . . . . . . .10
4.1 Principal Place of Business. . . . . . . . . .10
4.2 Purchase Without View to Distribute. . . . . .10
4.3 Restrictions on Transfer . . . . . . . . . . .10
4.4 Access to Information. . . . . . . . . . . . .10
4.5 Additional Representations of the Purchaser. .10
4.6 Legends. . . . . . . . . . . . . . . . . . . .11
4.7 Proceedings and Litigation . . . . . . . . . .11
ARTICLE 5. CONDITIONS PRECEDENT TO THE PURCHASER'S
OBLIGATIONS. . . . . . . . . . . . . . . .11
5.1 Representations and Warranties . . . . . . . .11
5.2 Performance. . . . . . . . . . . . . . . . . .11
i
<PAGE>
5.3 Opinion of Counsel . . . . . . . . . . . . . .11
5.4 HSR Act. . . . . . . . . . . . . . . . . . . .11
5.5 Standstill Agreement . . . . . . . . . . . . .11
5.6 Distribution Agreement . . . . . . . . . . . .11
5.7 Rights Agreement . . . . . . . . . . . . . . .12
5.8 Employment Contract. . . . . . . . . . . . . .12
5.9 Baxter Asset Purchase. . . . . . . . . . . . .12
5.10 No Proceeding or Litigation. . . . . . . . . .12
5.11 Disclosure Letter. . . . . . . . . . . . . . .12
5.12 Approval by Principal Trading Market . . . . .12
5.13 Approval by Company Stockholders . . . . . . .12
ARTICLE 6. CONDITIONS PRECEDENT TO THE COMPANY'S
OBLIGATIONS. . . . . . . . . . . . . . . . .12
6.1 Representations and Warranties . . . . . . . .12
6.2 Performance. . . . . . . . . . . . . . . . . .12
6.3 No Proceeding or Litigation. . . . . . . . . .13
6.4 HSR Act. . . . . . . . . . . . . . . . . . . .13
6.5 Standstill Agreement . . . . . . . . . . . . .13
6.6 Opinion of Counsel . . . . . . . . . . . . . .13
6.7 Approval by Principal Trading Market . . . . .13
6.8 Approval by Company Stockholders . . . . . . .13
6.9 Baxter Asset Purchase. . . . . . . . . . . . .13
ARTICLE 7. HSR ACT. . . . . . . . . . . . . . . . . . .13
7.1 Filings. . . . . . . . . . . . . . . . . . . .13
ARTICLE 8. COVENANTS OF THE COMPANY AND THE
PURCHASER. . . . . . . . . . . . . . . . . .13
8.1 Covenants of the Company . . . . . . . . . . .13
8.2 Covenants of the Purchaser . . . . . . . . . .14
ARTICLE 9. CERTAIN ADDITIONAL COVENANTS . . . . . . . .15
9.1 Further Assurances . . . . . . . . . . . . . .15
9.2 Certain Filings. . . . . . . . . . . . . . . .15
9.3 Public Announcements . . . . . . . . . . . . .15
9.4 Amendment of Standstill Agreement. . . . . . .15
9.5 Board Action under Rights Agreement. . . . . .15
9.6 Meeting of Company Stockholders. . . . . . . .15
9.7 Proxy Statement. . . . . . . . . . . . . . . .16
ARTICLE 10. COMPLIANCE WITH 1933 ACT; RESTRICTIONS ON
TRANSFERABILITY OF PURCHASED SHARES AND
DEBENTURE SHARES . . . . . . . . . . . . . . .16
ii
<PAGE>
10.1 Compliance with 1933 Act . . . . . . . . . . .16
10.2 Restrictive Legend . . . . . . . . . . . . . .16
10.3 Restrictions on Transferability. . . . . . . .17
10.4 Termination of Restrictions on
Transferability. . . . . . . . . . . . . . . .17
ARTICLE 11. SURVIVAL OF COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES . . . . . . .18
ARTICLE 12. INDEMNIFICATION. . . . . . . . . . . . . . .18
ARTICLE 13. TERMINATION. . . . . . . . . . . . . . . . .19
13.1 Termination. . . . . . . . . . . . . . . . . .19
13.2 Effect of Termination. . . . . . . . . . . . .19
ARTICLE 14. MISCELLANEOUS. . . . . . . . . . . . . . . .19
14.1 Owner of Shares. . . . . . . . . . . . . . . .19
14.2 Broker or Finder . . . . . . . . . . . . . . .19
14.3 Specific Enforcement . . . . . . . . . . . . .20
14.4 Severability . . . . . . . . . . . . . . . . .20
14.5 Expenses . . . . . . . . . . . . . . . . . . .20
14.6 Assignment; Successors . . . . . . . . . . . .20
14.7 Amendments . . . . . . . . . . . . . . . . . .21
14.8 Notices. . . . . . . . . . . . . . . . . . . .21
14.9 Attorneys' Fees. . . . . . . . . . . . . . . .22
14.10 Integration. . . . . . . . . . . . . . . . . .22
14.11 Waivers. . . . . . . . . . . . . . . . . . . .22
14.12 Governing Law. . . . . . . . . . . . . . . . .22
14.13 Counterparts . . . . . . . . . . . . . . . . .22
14.14 Cooperation. . . . . . . . . . . . . . . . . .22
14.15 Section Headings and Captions. . . . . . . . .22
EXHIBIT A Form of Subordinated Debenture
EXHIBIT B Form of Opinion of Counsel of the Company
EXHIBIT C Form of Opinion of Counsel of the Purchaser
EXHIBIT D Form of Amendment to the Standstill Agreement
iii
<PAGE>
May 25, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Filing Desk
Re: VWR Corporation; Filing of Schedule 13D
Ladies and Gentlemen:
Reference is made to Schedule 13D, dated April 20,
1995, filed by EM Laboratories, Incorporated (the "Reporting
Person") with respect to its acquisition of common stock, par
value $1.00, and a warrant to purchase additional common
stock, of VWR Corporation. The Common Shares are traded on
NASDAQ's national market under the symbol "VWRX."
On behalf of the Reporting Person, in compliance
with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules promulgated thereunder, I am delivering
to you Amendment Number 1 to Schedule 13D. A copy of this
Amendment is also being forwarded to the Issuer and the NASDAQ
Stock Exchange.
Please feel free to contact me at (212) 878-8154 if
you have any questions about the enclosed. Thank you.
Sincerely yours,
Robert E. Creese
cc: Thomas E. Wood, Esq.
Stephen J. Kunst, Esq.
Richard T. McDermott, Esq.
<PAGE>
