Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 4 TO THE PURCHASE AGREEMENT
AMENDMENT No. 4 (this “
Amendment ”), dated as of August [_], 2009, to the
Purchase Agreement, dated as of May 3, 2009 (as amended from time
to time, the “ Purchase Agreement ”), among
Milacron Inc., a Delaware corporation, Milacron Plastics
Technologies Group Inc., a Delaware corporation, D-M-E Company, a
Delaware corporation, 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
Milacron LLC (f/k/a 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;
WHEREAS, the Sellers and the Purchaser
agreed to amend the Purchase Agreement pursuant to Amendment No. 2
to the Purchase Agreement, dated June 25, 2009;
WHEREAS, the Sellers and the Purchaser
agreed to amend the Purchase Agreement pursuant to Amendment No. 3
to the Purchase Agreement, dated July 27, 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 following definition of
“Assumed Intercompany Obligations” is hereby
added:
“ Assumed Intercompany
Obligations ” means those obligations of the Sellers
specifically set forth in Section 1.01(a) of the
Sellers’ Disclosure Schedule”.
(b)
The term “European
Subsidiaries” shall refer to Milacron B.V. and Milacron
Investments B.V.
(c)
The definition of “DIP Note
Purchase Agreement” is hereby amended by deleting the phrase
“on or about April 29, 2009” and replacing it with
“as of May 12, 2009”.
(d)
The definition of “DIP Term Loan
Credit Agreement” is hereby amended by deleting “March
10, 2009” and replacing it with “March 11, 2009, as
amended,”.
(e)
The definition of “Intercompany
Loans” is hereby amended to insert the following words
immediately before the period at the end of such definition:
“or any other Seller”.
Section 2.
Amendment to Section
2.01(a) .
(a)
The last paragraph of subsection (a) is
hereby amended to delete the words “European Subsidiaries
(the “ European Shares ”)” immediately
before the period in the last line thereof and replace them with
the following:
“Milacron Investments B.V.
Immediately thereafter, MCH B.V. shall sell, assign,
transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to Milacron Investments B.V.,
as the Purchaser’s designated Affiliate, free and clear of
all Liens, claims and encumbrances of any nature whatsoever other
than Permitted Encumbrances and Assumed Liabilities, and Milacron
Investments B.V., as the Purchaser’s designated Affiliate,
shall purchase and acquire from MCH B.V., all of such MCH
B.V.’s right, title and interest, as of the Closing Date, in
and to all of the issued and outstanding shares of capital stock of
Milacron B.V. (together with the issued and outstanding shares of
capital stock of Milacron Investments B.V., the “ European
Shares ”).”
Section 3.
Amendment to Section
2.02(a) .
(a)
Section 2.02(a)(iv) is hereby amended to
add the words “and the Assumed Intercompany
Obligations” immediately before the semicolon appearing at
the end of subsection (iv).
Section 4.
Amendment to Section 2.04
. Section 2.04(h) is hereby amended
to delete the period at the end of subsection (h) and replace it
with the words “; plus”, and the following is hereby
added as a new subsection (i):
“(i)
in the case of the Canadian Purchaser,
the delivery of 3,712,764 of Senior Secured Notes to Milacron
Canada.”
Section 5.
Amendment to Section 2.07
. Section 2.07 is hereby amended to
delete the words “August 7, 2009” in the fifth line
thereof and to replace them with “August 21,
2009”.
Section 6.
Amendment to Section 2.08
.
(a)
Subsection (h) is hereby amended by
deleting the period at the end of subsection and adding the
following “or a certificate from each applicable Seller in
form reasonably satisfactory to the Purchaser confirming that (1)
as of the Closing Date, Sellers reasonably believe that no such
consents are required and (2) after the Closing Date, the Sellers
will cooperate with the Purchaser to obtain any such consents that
Purchaser determines to be required that were not delivered at the
Closing.
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(b)
Subsection (i) is hereby amended to
delete the parenthetical at the end of the sentence in its
entirety, and insert in its place “or waived by the
Purchaser; provided that, solely for the purposes of this Section
2.08(i), such waivers may be in writing or oral, and provided that
all such waivers shall require the Sellers to meet the continuing
obligations of the Sellers under Section 8.03 of this Agreement in
regards to such waived items.”
(c)
Subsection (m) is hereby deleted in its
entirety and replaced with the word
“[Reserved]”.
Section 7.
Amendment to Section 5.08
. Section 5.08 is hereby amended to
delete the second sentence and to replace it in its entirety with
the following:
“Without limiting the generality
of the foregoing: (a) each of the Sellers shall use its
commercially reasonable efforts to, and to cause its accountants,
attorneys, advisors, employees and other Representatives to,
cooperate with the Purchaser in order to consummate and make
effective the Transactions, including with respect to (i) the
provision of all information necessary to enable the Purchaser and
the Canadian Purchaser to make the offers to employees described in
Section 6.01(a), (ii) any resolution reached with M.N. Patel in
connection with Ferromatik Milacron India Limited
, (iii) the transfer of the Shares of any
Transferred Subsidiary to the Purchaser or a designated Affiliate
thereof and the satisfaction of any local requirements (including
any necessary local filings, authorizations or documentation)
relating thereto and (iv) the resolution of any actions of the
Pension Benefit Guaranty Corporation against any Seller or
Transferred Subsidiary, provided that any such action is
consistent with the fiduciary obligations imposed upon any Seller
or Transferred Subsidiary by ERISA; and (b) the Purchaser shall use
its commercially reasonable efforts to cooperate with the Sellers
in negotiating, documenting and entering into guaranties in
replacement of the Uniloy Guarantees after the
Closing.”
Section 8.
Amendment to Section 5.10
. Subsection (d) is hereby deleted
in its entirety and replaced with the word
“[Reserved]”.
Section 9.
Amendment to Section 5.16.
Subsection (c) is hereby amended to insert, directly after
the term “Business”, and immediately before the comma
in the sixth line thereof, “(including any Shares of any
Transferred Subsidiary)”.
Section 10. Amendment to
Section 5.22. Section 5.22 is hereby deleted in its entirety
and replaced with the word “[Reserved]”.
Section 11. Addition of
Section 8.03 . The following is added as a new Section
8.03:
Section 8.03. Continuing
Obligations . In the event that, notwithstanding the
failure of any of the conditions set forth in Section 8.02 to be
satisfied, the Purchaser agrees to consummate the Transactions, the
Sellers shall cooperate with the Purchaser and work in good faith
following the Closing Date to satisfy any outstanding conditions as
promptly as practicable. Notwithstanding anything to the
contrary set forth herein, the
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Sellers obligations pursuant to Section
2.08(h), Section 5.08 and this Section 8.03 shall survive the
Closing until the obligations described therein are satisfied in
full.
Section 12.
Amendment to Section 1.01(a) of the
Sellers’ Disclosure Schedule . Section 1.01(a) of the Sellers’
Disclosure Schedule is hereby added to the Sellers’
Disclosure Schedule, in form and substance attached hereto as
Exhibit A .
Section 13.
Amendment to Section 2.01(a)(xxvi) of
the Sellers’ Disclosure
Schedule. Section 2.01(a)(xxvi) of the Sellers’
Disclosure Schedule is hereby amended to add “All issued and
outstanding Shares of capital stock or other equity interests in
the following” directly before the word
“Affiliates” and to delete the words “The Factory
Power Co.”
Section 14.
Amendment to Section 2.01(b)(vii) of
the Sellers’ Disclosure
Schedule . Section 2.01(b)(vii) of the Sellers’
Disclosure Schedule (as amended by Amendment No. 1) is hereby
amended:
(a)
to add the following as additional
Excluded Contracts:
(i)
Settlement Agreement, dated September 8,
2006, between Timothy and Beth Shields and D-M-E
Company.
(ii)
Record Management and Service Agreement,
dated November 1, 2000, between Iron Mountain and D-M-E
Company.
(iii)
Settlement Agreement, dated June 19,
1992, among Morton International Inc. and Cincinnati Milacron Inc.
and Cincinnati Milacron Assurance Ltd.
(iv)
Exchange Agent Agreement, dated May 15,
2007, between Mellon Investor Services and Milacron Inc.
(v)
Transfer Agency Agreement, dated April 1,
2006, between Mellon Investor Services and Milacron Inc.
(vi)
Offer Letter, dated November 17, 2008,
between David E. Lawrence and Milacron Inc.
(b)
to add the following as an Other
Excluded Asset: “All issued and outstanding shares of capital
stock or other equity interests in The Factory Power
Co.”
(c)
to delete “Milacron Investments
B.V.” from the list of Other Excluded Assets.
Section 15. Amendment to
Section 2.02(a)(vii) of the Sellers’
Disclosure
Schedule . Section 2.02(a)(vii) of the Sellers’
Disclosure Schedule (as amended by Amendment No. 1) is hereby
deleted and replaced in its entirety with Exhibit B attached
hereto.
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Section 16.
Entire Agreement
. The Purchase Agreement (as
amended by this Amendment) and the Ancillary Agreements constitute
the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior
agreements and undertakings, both written and oral, among the
Sellers and the Purchaser with respect to the subject matter hereof
and thereof.
Section 17.
Severability . If any term or other provision of this
Amendment is invalid, illegal or incapable of being enforced by any
Law or public policy, all other terms and provisions of this
Amendment shall nevertheless remain in full force and effect for so
long as the economic or legal substance of the transactions
contemplated by the Purchase Agreement (as amended by this
Amendment) is not affected in any manner materially adverse to
either party hereto. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify the
Purchase Agreement (as amended by this Amendment) so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions
contemplated by the Purchase Agreement (as amended by this
Amendment) are consummated as originally contemplated to the
greatest extent possible.
Section 18.
Counterparts . This Amendment may be executed and delivered
(including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all
of which taken together shall constitute one and the same
agreement.
Section 19.
Governing Law . This Amendment shall be governed by, and
construed in accordance with, the Laws of the State of New York
and, to the extent applicable, the Bankruptcy Code and the CCAA.
The parties hereto agree that the Bankruptcy Courts shall be
the exclusive forums for enforcement of this Amendment and (only
for the limited purpose of such enforcement) submit to the
jurisdiction thereof; provided , that if the U.S. Bankruptcy
Court determines that it does not have subject matter jurisdiction
over any action or proceeding arising out of or relating to this
Amendment, then the Debtors and the Purchaser: (a) agree that
all such actions or proceedings shall be heard and determined in a
New York federal court sitting in The City of New York;
(b) irrevocably submit to the jurisdiction of such court in
any such action or proceeding; (c) consent that any such
action or proceeding may
