EXECUTION COPY
Exhibit 99.2
AMENDMENT TO
PURCHASE AGREEMENT
by and among
SPX CORPORATION,
KENDRO GP II, LLC,
SPX EUROPE GmbH,
GENERAL SIGNAL IRELAND B.V.,
GSLE DEVELOPMENT CORPORATION,
THERMO ELECTRON CORPORATION,
THERMO ELECTRON (OBERHAUSEN) GmbH,
THERMO ELECTRON SA
and
THERMO ELECTRON BETEILIGUNGSVERWALTUNGS GmbH
Dated as of May 6, 2005
TABLE OF CONTENTS
Page
ARTICLE I Amendments........................................................1
1.1. Amendments to Purchase Agreement.......................1
1.2. Amendments to Exhibits and Schedules...................4
ARTICLE II Covenant and Waiver of Purchaser..................................7
2.1. Satisfaction of Profits Claim..........................7
2.2. Waiver.................................................7
2.3. Consent to Assignment..................................7
ARTICLE III Miscellaneous.....................................................8
3.1. Effect of Amendment....................................8
3.2. No Third-Party Beneficiaries...........................8
3.3. Governing Law..........................................8
3.4. Counterparts...........................................8
3.5. Amendment..............................................8
EXHIBIT
Exhibit B.........Notarial Deed
SCHEDULE
Schedule 1.1......German Fiscal Year Termination and Closing Procedures
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AMENDMENT TO PURCHASE AGREEMENT
This AMENDMENT, dated as of May 6, 2005 (this "Amendment"), to the
Purchase Agreement, dated as of January 19, 2005 (as modified by those certain
letter agreements dated February 9, 2005, February 14, 2005, February 16, 2005,
February 17, 2005, February 18, 2005, March 8, 2005 and March 18, 2005, the
"Purchase Agreement"), by and among SPX Corporation, a Delaware corporation
("SPX"), Kendro GP II, LLC, a Delaware limited liability company and wholly
owned subsidiary of SPX ("Kendro GP II"), SPX Europe GmbH, a company organized
under the laws of Germany and an indirect, wholly owned subsidiary of SPX ("SPX
Europe"), General Signal Ireland B.V., a company organized under the laws of
Netherlands and an indirect, wholly owned subsidiary of SPX ("GS Ireland"), and
GSLE Development Corporation, a Delaware corporation and a direct, wholly owned
subsidiary of SPX ("GSLE"; SPX, Kendro GP II, SPX Europe, GS Ireland and GSLE
being referred to herein individually and collectively as "Seller"), and Thermo
Electron Corporation, a Delaware corporation ("Thermo"), Thermo Electron
(Oberhausen) GmbH, a company organized under the laws of Germany and an
indirect, wholly owned German subsidiary of Thermo ("Thermo Germany"; Thermo and
Thermo Germany being referred to herein, individually and collectively, as
"Purchaser"), is made by and among Seller, Purchaser, Thermo Electron SA, a
company organized under the laws of the Switzerland and an indirect, wholly
owned subsidiary of Thermo ("Thermo Switzerland"), and Thermo Electron
Beteiligungsverwaltungs GmbH, a company organized under the laws of the Germany
and an indirect, wholly owned subsidiary of Thermo ("Thermo Germany II").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller and Purchaser have entered into the Purchase Agreement
providing for the sale by Seller to Purchaser of the Kendro Business; and
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement in
certain respects to, among other things, modify the procedures for the Closing,
to document the waiver by Purchaser of Seller's obligation to perform certain
covenants and to add each of Thermo Switzerland and Thermo Germany II to
"Purchaser" under the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
Amendments
1.1. Amendments to Purchase Agreement. The Purchase Agreement is
hereby amended as follows:
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(a) Section 1.1 of the Purchase Agreement is amended and
restated in its entirety to read as follows:
1.1. Purchase and Sale. On the terms and subject to
the conditions of this Agreement, at the Closing, (i) SPX and
Kendro LP shall sell, assign, transfer, convey and deliver to
Purchaser, and Purchaser shall purchase from SPX and Kendro
LP, all of the Kendro plc Shares; (ii) Kendro LP shall sell,
assign, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase from Kendro LP, all of the Kendro HK
Shares; (iii) SPX shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser shall purchase from SPX,
all of the MedCo Shares, the KeyCo Shares and the CryCo
Shares; (iv) SPX shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser shall purchase from SPX,
all of the Kendro LP Interests owned directly by SPX; (v)
Kendro GP II shall sell, assign, transfer, convey and deliver
to Kendro GP, and Kendro GP shall purchase from Kendro GP II,
all of the Kendro LP Interests owned directly by Kendro GP II;
(vi) SPX Europe shall sell, assign, transfer, convey and
deliver to Thermo Germany II, and Thermo Germany II shall
purchase from SPX Europe, 90% of the Kendro GmbH Shares and
SPX Europe shall sell, assign, transfer, convey and deliver to
Thermo, and Thermo shall purchase from SPX Europe, 10% of the
Kendro GmbH Shares; (vii) GS Ireland shall sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall
purchase from GS Ireland, all of the Kendro AG Shares and the
Nippon Kendro Shares; (viii) SPX shall sell, assign, transfer,
convey and deliver to Purchaser, and Purchaser shall purchase
from SPX, all of the Kendro GP Shares; and (ix) GSLE shall
assign, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase from GSLE, the GSLE Kendro Assets, in
each case free and clear of all liens, security interests and
other encumbrances ("Encumbrances"). In furtherance of the
foregoing, each of Thermo, Thermo Germany II and SPX Europe
shall, consistent with the procedures set forth in Schedule
1.1, execute a power of attorney, and each of Thermo, Thermo
Germany II and SPX Europe shall through its respective duly
appointed attorney-in-fact, in a jurisdiction reasonably
acceptable to SPX, Thermo and Thermo Germany II, execute and
deliver before an appropriate notary public (the "Notary
Public") a notarial deed identical in all respects to the form
of notarial deed attached as Exhibit B hereto (the "Notarial
Deed"), which provides for the transfer of legal title to the
Kendro GmbH Shares to Thermo and Thermo Germany II upon the
terms and conditions set forth in the Notarial Deed. In
addition, subject to the consummation of the Closing, SPX
Europe shall sell, assign, transfer and convey (and effective
upon the consummation of the Closing, does hereby sell,
assign, transfer and convey) to Thermo Germany II and Thermo
Germany II shall purchase, accept and assume (and effective
upon the consummation of the Closing, does hereby purchase,
accept and assume) from SPX Europe any rights to receive
profits from Kendro GmbH and any obligations of repayment in
respect of any prior overpayments of profits (the "SPX Europe
Profit Transfer Claims and Obligations") arising under the
profit and loss transfer agreement between SPX Europe and
Kendro GmbH
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dated July 24, 2002 (the "Kendro GmbH Profit Transfer
Agreement") in respect of all periods prior to the Closing.
(b) Section 1.2 of the Purchase Agreement is amended and
restated in its entirety to read as follows:
1.2. Purchase Price. Purchaser shall pay in cash to
Seller for the Interests and assets sold by Seller hereunder
and for the SPX Europe Profit Transfer Claims and Obligations
transferred pursuant to Section 1.1, an aggregate purchase
price equal to the sum of (A) $833,500,000 (the "Purchase
Amount") and (B) the aggregate amount of Closing Cash (as
defined in Section 1.4) (the sum of (i) and (ii), as adjusted
pursuant to Sections 1.3 and 1.4, the "Purchase Price"). The
Purchase Price shall be allocated as set forth on Exhibit 1.2.
Notwithstanding anything herein or in any Ancillary Document
to the contrary, Purchaser covenants and agrees that it shall
pay the Purchase Amount only in whole, and not in part, on the
Closing Date.
(c) Sections 1.5(b)(v) and (vi) of the Purchase Agreement
are amended and restated in their entirety to read as follows:
(v) Immediately following the transactions described
in clauses (i) through (iv) above the following transactions
shall be effected in the order set forth below:
(A) Seller shall deliver to Purchaser the
share certificates representing the MedCo Shares, the KeyCo
Shares and the CryCo Shares, duly endorsed by SPX for the
transfer to Purchaser or accompanied by duly executed stock
power, reasonably acceptable to Purchaser, in blank,
(B) SPX Europe shall deliver to each of
Thermo and Thermo Germany II a copy of the Notarial Deed,
(C) Seller shall deliver to Purchaser the
share certificates representing the Kendro AG Shares, duly
endorsed by GS Ireland for the transfer to Purchaser or
accompanied by duly executed instruments of transfer,
reasonably acceptable to Purchaser, in blank,
(D) Seller shall deliver to Purchaser the
share certificates representing the Nippon Kendro Shares,
duly endorsed by GS Ireland for the transfer to Purchaser or
accompanied by duly executed instruments of transfer,
reasonably acceptable to Purchaser, in blank,
(E) Seller shall deliver to Purchaser
instruments of assignment, reasonably acceptable to Purchaser,
transferring the Kendro LP Interests owned directly by SPX to
Purchaser, duly executed by SPX,
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(F) Seller shall deliver to Kendro GP
instruments of assignment, reasonably acceptable to Purchaser,
transferring the Kendro LP Interests owned directly by Kendro
GP II to Kendro GP, duly executed by Kendro GP II, in return
for a promissory note issued by Kendro GP to Kendro GP II in
an aggregate principal amount of $691,251 (the "Kendro GP
Note"),
(G) Kendro GP II shall distribute the Kendro
GP Note to SPX and SPX shall contribute the Kendro GP Note to
Kendro GP,
(H) Seller shall deliver to Purchaser the
share certificates representing the Kendro GP Shares, duly
endorsed by SPX for the transfer to Purchaser or accompanied
by duly executed instruments of transfer, reasonably
acceptable to Purchaser, in blank,
(I) Seller shall assign, transfer, convey
and deliver to Purchaser all of the assets, properties and
rights of GSLE set forth on Schedule 1.5(b)(v)(G) (the "GSLE
Kendro Assets"), subject to the liabilities and obligations of
GSLE set forth on Schedule 1.5(b)(v)(G) (the "GSLE Kendro
Liabilities," and together with the GSLE Kendro Assets, the
"GSLE Kendro Assets and Liabilities"), by executing and
delivering a bill of sale and assignment and assumption
agreement, reasonably acceptable to Purchaser (the "GSLE Bill
of Sale"), providing for the assignment of all GSLE Kendro
Assets and Liabilities from GSLE (or any successor pursuant
to a merger, consolidation, liquidation or other
reorganization) to Purchaser and Purchaser's acceptance and
assumption of the GSLE Kendro Assets and Liabilities;
(vi) Purchaser shall (1) pay to SPX, SPX Europe, GS
Ireland or GSLE, as appropriate, the portion of the Closing
Payment attributable to the Interests (other than the Kendro
plc Shares and the Kendro HK Shares) being sold by such person
as set forth in Exhibit 1.2 and (2) accept and assume the GSLE
Kendro Assets and Liabilities by executing and delivering the
GSLE Bill of Sale; and
(d) Section 2.4(c) of the Purchase Agreement is amended
and restated in its entirety to read as follows:
Upon effectiveness of the Notarial Deed and upon
fulfillment of the condition precedent to the transfer of
title to the Kendro GmbH Shares pursuant to the Notarial Deed,
legal and valid title to the Kendro GmbH Shares will pass to
Thermo and Thermo Germany II, free clear of any Encumbrances.
(e) The Purchase Agreement is amended by adding a new
Section 6.3 immediately following Section 6.2 that reads as follows:
6.3 Inadvertent Payments; May 8 Payroll. (a) In the
event that after the Closing, Seller pays (as a result of the
presentation for payment of a check written in favor of a
third party by or for the benefit of a Kendro
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Entity prior to the Closing) any liability of a Kendro
Entity, Purchaser shall reimburse Seller (a "Purchaser
Reimbursement") for the amount so paid within 10 days of
being presented with written evidence of such payment or
discharge. In the event that after the Closing, Seller
receives payment on account of any account, note or other
receivable of a Kendro Entity, Seller shall forward such
payment (a "Seller Payment") to Purchaser within 10 days of
receipt.
(b) Purchaser and Seller agree that Seller will provide
payroll services to Kendro LP covering the period from May 1,
2005 through and including May 8, 2005 (the "May 8 Payroll").
Purchaser will cause payroll checks to be issued on May 13,
2005 in respect of the May 8 Payroll, subject to the
following:
(i) Seller shall provide Purchaser with a detailed
statement of the amount of the May 8 Payroll (the "May 8
Payroll Amount"), and supporting documentation (which shall
include a listing of each employee and the amount being paid
to each employee), no later than May 11, 2005;
(ii) On or before May 12, 2005, Purchaser shall wire
transfer to Seller in immediately available funds an amount
equal to the May 8 Payroll Amount.
1.2. Amendments to Exhibits and Schedules.
(a) Exhibit 1.2 of the Purchase Agreement is amended and
restated in its entity to read as follows:
The Purchase Price shall be allocated as follows:
$30,955,000 shall be in consideration of the purchase of the
Kendro plc Shares, $1,474,000 shall be in consideration of the
purchase of the Kendro HK Shares, $5,428,000 shall be in
consideration of the purchase of the MedCo Shares, $225,000
shall be in consideration of the purchase of the KeyCo Shares,
$6,515,000 shall be in consideration of the purchase of the
CryCo Shares, $341,477,749 shall be in consideration of the
purchase of the Kendro LP Interests, $328,365,900 shall be in
consideration of the purchase of 90% of the Kendro GmbH Shares
and 100% of the SPX Europe Profit Transfer Claims and
Obligations purchased by Thermo Germany II and $36,485,100
shall be in consideration of 10% of the Kendro GmbH Shares
purchased by Thermo, $7,608,000 shall be in consideration of
the purchase of the Kendro AG Shares, $1,000 shall be in
consideration of the purchase of the Nippon Kendro Shares,
$4,147,251 shall be in consideration of the purchase of the
Kendro GP Shares, and $70,818,000 shall be in consideration of
the purchase of the GSLE Kendro Assets.
With respect to the $364,851,000 that is in
consideration of the purchase of the Kendro GmbH Shares: (i)
$11,299,000 of such amount shall be allocated to the shares of
H + P Labortechnik AG, a wholly owned subsidiary of Kendro
GmbH, and (ii) $2,878,000 of such amount shall be allocated to
the shares of AHSI S.p.A., a minority investment of Kendro
GmbH.
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(b) Exhibit 1.3 to the Purchase Agreement is amended by
the addition of the following paragraphs immediately following
paragraph 4 of such exhibit:
5. For purposes of the Closing Balance Sheet, the
calculation of total assets and total
liabilities shall exclude all assets and all
liabilities of Kendro GmbH in respect of SPX
Europe Profit Transfer Claims and Obligations
transferred by SPX Europe to Thermo Germany II
in connection with the Closing.
6. For purposes of the Closing Balance Sheet, total
liabilities shall include as a liability the
amount of any Purchaser Reimbursement made
with respect to a pre-Closing liability to the
extent that such liability is not otherwise
accrued as of the Effective Closing Date and
total assets shall include as an asset the
amount of any Seller Payment made with respect
to a pre-Closing asset to the extent that such
asset is not otherwise accrued as of the
Effective Closing Date.
(c) Schedule 4.1 to the Purchase Agreement is amended by
amending and restating paragraph 1 of such schedule in its entirety to
read as follows:
1. Prior to the Closing, Kendro Laboratory
Products, L.P. ("Kendro LP") will transfer the
facility located at 31 Pecks Lane, Newtown,
Connecticut to SPX or a Subsidiary of SPX that
is not a Kendro Entity for no or nominal
consideration. In connection with such
transfer, Kendro LP will also assign, to the
extent assignable, to the transferee a right
to be indemnified by E.I. duPont de Nemours and
Company ("E.I. duPont") for environmental
matters arising at the Newtown, Connecticut
facility (the "Newtown Indemnity"), provided
that in no event shall such assignment
adversely affect Kendro LP's right to continue
to make claims under the Newtown Indemnity.
Purchaser agrees that after the Closing, if
requested by Seller, Purchaser will cause
Kendro LP to take all action (at Seller's sole
expense) to enforce for the benefit of Seller
all rights of Kendro LP against E.I. duPont
under the Newtown Indemnity arising out of the
Newtown, Connecticut facility.
(d) The Schedules to the Purchase Agreement are amended by
adding a new Schedule 1.1. The text of Schedule 1.1 shall be as set
forth in Schedule 1.1 attached to this Amendment.
(e) Exhibit B to the Purchase Agreement is amended and
restated in its entirety to read as set forth in Exhibit B to this
Amendment.
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ARTICLE II
Covenant and Waiver of Purchaser
2.1. Satisfaction of Profits Claim. Article V of the Purchase
Agreement is amended by adding a new Section 5.5 that reads as follows:
5.5 Satisfaction of Profits Claim.
(a) Purchaser and Seller acknowledge that Kendro GmbH has
made pre-payments under the Kendro GmbH Profit Transfer
Agreement on fiscal 2004 and 2005 profits to SPX Europe prior
to the Closing Date. Thermo and Thermo Germany II covenant and
agree to approve (feststellen) the Kendro GmbH statutory balance
sheets as of all fiscal years ending on, around or prior to
the Closing Date which have not been approved (festgestellt)
as of the Closing Date, such statutory balance sheets to be in
form and substance as directed by Seller and reasonably
acceptable to Thermo and Thermo Germany II, which acceptance
may not be unreasonably withheld or delayed. Thermo and Thermo
Germany II shall have twenty-one (21) days from the receipt of
the proposed statutory balance sheets to review and determine
whether such statutory balance sheets are reasonably
acceptable. If Thermo or Thermo Germany II does not deliver
notice of whether it has found the statutory balance sheets
reasonably acceptable within twenty-one (21) days of receipt,
such statutory balance sheets shall be deemed reasonably
acceptable. In addition, subject to the statutory balance
sheets being (or being deemed to be) reasonably acceptable to
Thermo and Thermo Germany II, Thermo and Thermo Germany II
agree to adopt all required shareholders' resolutions
effecting such approvals.
(b) Purchaser covenants and agrees that it will cause Thermo
Germany II and Kendro GmbH to pay, perform and satisfy all
obligations of the SPX Europe Profit Transfer Claims and
Obligations transferred by SPX Europe to Thermo Germany II in
accordance with the terms thereof.
2.2. Waiver. Purchaser hereby waives Seller's obligation
under Section 6.2 of the Purchase Agreement to cause Purchaser and each Kendro
Entity that is not a named insured to be added or included effective as of the
Closing as an additional named insured under each Occurrence-Based Business
Policy issued by American International Group, Inc. or its affiliates providing
coverage for 2005.
2.3. Consent to Assignment. Seller hereby consents to (i) the
assignment by (a) Purchaser to Thermo Switzerland of the right to purchase all
of the Kendro plc Shares, (b) Thermo Germany to Thermo and Thermo Germany II
of the right to purchase a portion of the Kendro GmbH Shares and (c) Purchaser
to Thermo Switzerland of the right to purchase all of the Kendro AG Shares,
each as provided by Section 1.1 of this Amendment and (ii) the addition of
each of Thermo Switzerland and Thermo Germany II to "Purchaser" under the
Purchase
7
Agreement, such consent to be effective upon Thermo Switzerland's and Thermo
Germany II's execution of this Amendment. By its execution of this Amendment,
each of Thermo Switzerland and Thermo Germany II agrees to be bound to the
provisions of the Purchase Agreement as "Purchaser" and to be jointly and
severally liable with Purchaser and any other assignee of Purchaser for all of
the obligations of Purchaser.
ARTICLE III
Miscellaneous
3.1. Effect of Amendment. Except as and to the extent expressly
modified by this Amendment, the Purchase Agreement shall remain in full force
and effect in all respects. For the avoidance of doubt, this Amendment shall
not alter or modify the provisions of Article X of the Purchase Agreement,
including the tax indemnities set forth therein.
3.2. No Third-Party Beneficiaries. Notwithstanding anything
contained in this Amendment to the contrary, nothing in this Amendment, express
or implied, is intended to confer on any person other than the parties hereto
or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Amendment.
3.3. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware applicable
to agreements made and to be performed wholly within such jurisdiction.
3.4. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same agreement.
3.5. Amendment. This Amendment may not be amended except by an
instrument in writing signed on behalf of each of the parties.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
SPX CORPORATION
/s/ Christopher J. Kearney
By: _____________________________________________
Name: Christopher J. Kearney
Title: President and Chief Executive Officer
KENDRO GP II, LLC
/s/ Patrick J. O'Leary
By: _____________________________________________
Name: Patrick J. O'Leary
Title: Vice President and Treasurer
SPX EUROPE GmbH
/s/ Patrick J. O'Leary
By: _____________________________________________
Name: Patrick J. O'Leary
Title: Director
GENERAL SIGNAL IRELAND B.V.
Patrick J. O'Leary
By: _____________________________________________
Name: Patrick J. O'Leary
Title: Managing Director
GSLE DEVELOPMENT CORPORATION
/s/ Patrick J. O'Leary
By: _____________________________________________
Name: Patrick J. O'Leary
Title: Vice President and Treasurer
THERMO ELECTRON CORPORATION
/s/ Kenneth J. Apicerno
By: __________________________________________
Name: Kenneth J. Apicerno
Title: Treasurer
THERMO ELECTRON (OBERHAUSEN) GmbH
/s/ Johannes Lammel
By: __________________________________________
Name: Johannes Lammel
Title: Managing Director
THERMO ELECTRON SA
/s/ Charly Marti
By: __________________________________________
Name: Charly Marti
Title: President of the Board of Directors
THERMO ELECTRON BETEILIGUNGSVERWALTUNGS GmbH
/s/ Johannes Lammel
By: __________________________________________
Name: Johannes Lammel;
Title: Managing Director
Schedule 1.1
German Fiscal Year Termination and Closing Procedures
April 28: Consent of tax authority to Kendro GmbH fiscal year change
April 29: Notarization of shareholders' resolution of Kendro GmbH
approving the termination of the Kendro GmbH Profit Transfer
Agreement
April 29: Notarization of fiscal year change documentation
April 29: Filing of fiscal year change documentation with German
commercial register and registration of fiscal year change
May 2 - May 4: Adoption of shareholders' resolution of SPX Europe GmbH
approving the termination of the Kendro GmbH Profit Transfer
Agreement
May 4: Notarization of Notarial Deed (Exhibit B); Purchaser agrees
not to request the Notary Public to issue prior to the Closing
any copies (simple (einfache Abschriften), certified
(beglaubigte Abschriften) or executed (Ausfertigungen)) of the
Notarial Deed. A copy of the Notarial Deed will be delivered
to Purchaser on the Closing Date
May 8: Execution of termination agreement regarding Kendro GmbH Profit
Transfer Agreement
May 8 (prior to 24:00 hrs,
German time): Execution and delivery of letter agreement between Purchaser and
Seller that all conditions (other than payment of the Purchase
Price) have been satisfied or waived; parties obligated to
close
May 9: Closing in the United States; payment of the Purchase Price
(Kendro GmbH Shares transfer effective as of 0:00 hours)
Prior
to May 20: Filing of termination agreement regarding Kendro GmbH Profit
Transfer Agreement with German commercial register by Kendro
GmbH