Execution Version
AMENDMENT NO. 2 TO THE PURCHASE
AGREEMENT
AMENDMENT No. 2 (this “
Amendment ”), dated as of June 25, 2009, to the
Purchase Agreement, dated as of May 3, 2009 (as amended, the
“ Purchase Agreement ”), among Milacron Inc., a
Delaware corporation, Milacron Plastics Technologies Group Inc., a
Delaware corporation, D-M-E Company, a Delaware corporation
(“ DME ”), Cimcool Industrial Products Inc., a
Delaware corporation, Milacron Marketing Company, an Ohio
corporation, Milacron Canada Ltd., an Ontario corporation, Milacron
Capital Holdings B.V., a Dutch corporation (collectively, the
“ Sellers ” or the “ Debtors
”), and MI 363 Bid LLC, a Delaware limited liability
company (the “ Purchaser ”). Capitalized
terms used but not defined herein shall have the meanings assigned
to such terms in the Purchase Agreement.
WHEREAS, the Sellers and the Purchaser
entered into the Purchase Agreement pursuant to which the Sellers
agreed to sell, and the Purchaser agreed to purchase, the Purchased
Assets, upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Sellers and the Purchaser
agreed to amend the Purchase Agreement pursuant to Amendment No. 1
to the Purchase Agreement, dated June 5, 2009; and
WHEREAS, the parties hereto desire to
further amend the Purchase Agreement as set forth in this Amendment
in accordance with Section 11.08 thereof.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Amendment hereby agree as
follows:
Section 1.
Amendment to Section 1.01
.
(a)
The definition of “Excluded
Taxes” is hereby amended to delete the word “and”
immediately preceding “(iii)” and to insert the
following immediately preceding the period at the end of the
definition: “and (iv) for greater certainty, any Taxes in
connection with any Employee Plan subject to Title IV of ERISA
(including, without limitation, any Taxes arising under or in
connection with Section 4006(a)(7) of ERISA)”.
(b)
The definition of “Assumed
Payables” is hereby deleted and replaced in its entirety with
the following:
“ Assumed Payables ”
means only Allowed Administrative Claims owed to third party
vendors, suppliers, and other general trade creditors,
including payroll obligations, to the extent incurred by the
Sellers in the ordinary course of business (and not in violation of
this Agreement) and solely to the extent such Claims relate
specifically to the operation of the Business between the
Petition Date through Closing; provided that the definition of
Assumed Payables shall exclude all Excluded Liabilities
and any Claim based on, in connection with or related to
any Asset or Contract that does not constitute a
Purchased Asset.
(c)
The definition of “Canadian Trade
Payables” is hereby amended to replace the number
“750,000” in the third line with
“820,000”.
NYDOCS02/874182.8
Section 2.
Amendment to Section
2.02(a)(iii) . Section
2.02(a)(iii) is hereby amended to insert the following immediately
after the semi-colon at the end of the section: “
provided , however , that, for greater certainty, any
Taxes in connection with any Employee Plan subject to Title IV of
ERISA (including any Taxes arising under or in connection with
Section 4006(a)(7) of ERISA) shall be Excluded Liabilities
hereunder;”.
Section 3.
Amendment to Section 2.07
. Section 2.07 of the Purchase
Agreement is hereby deleted and replaced in its entirety with the
following:
Section
2.07
Closing . Subject to the terms and conditions of this
Agreement, the consummation of the Transactions shall take place at
a closing (the “ Closing ”) to be held (i) at
the offices of Shearman & Sterling LLP, 599 Lexington
Avenue, New York, New York at 10:00 a.m. New York time, or, in
relation to the European Shares, at a location to be determined by
the Purchaser in Amsterdam, the Netherlands, on July 16, 2009 or,
in the event the conditions to the obligations of the parties
hereto set forth in Section 8.01 and
Section 8.02 (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to the
fulfillment or waiver of those conditions) have not been satisfied
or waived by such date and time, on the first Business Day
following such satisfaction or waiver, or (ii) at such other place
or at such other time or on such other date as the Sellers and the
Purchaser may mutually agree upon in writing. The date of the
Closing is herein referred to as the “ Closing Date
.”
Section 4.
Amendment to Section 5.23
. Section 5.23 is hereby amended to
insert the following as a new Section 5.23(e):
(e)
Section 5.23(e)
of the Sellers’ Disclosure Schedule
sets forth a description of the transaction structure that the
Purchaser has decided to implement under this Section 5.23 and
certain rights and obligations of the parties
thereunder.
Section 5.
Amendment to the Sellers’
Disclosure Schedule .
(a)
Sec
