Exhibit 10.11
Millipore Corporation
Millipore MicroElectronics, Inc.
Plan of Reorganization of Operations Outside of the U.S.
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[The Non-U.S. Plan]
This Plan of Reorganization of Operations Outside of the United States
("Plan of Reorganization") sets forth the steps and actions to be taken in
order to separate the MMI Business conducted outside of the United States from
the BioPharmaceutical, Analytical and Laboratory Water System businesses being
retained by Millipore Corporation.
Definitions. Capitalized terms used herein without definition shall have the
meaning ascribed thereto in the Master Separation and Distribution Agreement,
dated February __, 2001 (the "Separation Agreement"), between Millipore
Corporation and Millipore MicroElectronics, Inc., to which this Plan of
Reorganization is attached. The terms set forth below shall have the following
meanings:
"IRC" means the United States Internal Revenue Code of 1986, as amended.
"Millipore" means Millipore Corporation, a Massachusetts corporation, which is
publicly traded on the New York Stock Exchange (NYSE -"MIL") and is the
ultimate parent of the Millipore group of companies.
"MAL" means Millipore Asia Limited, a Delaware corporation which is a direct
subsidiary of Millipore and conducts operations either through branch offices,
affiliates or subsidiaries in Hong Kong, India, Korea, Malaysia, Singapore and
Taiwan.
"MBAL" means Millipore BioSciences Asia Limited, a Delaware corporation which
is to be formed by MAL pursuant to Step 5 D and which after the Separation
will be used to conduct Millipore's ongoing BioPharmaceutical, Analytical and
Laboratory Water Divisions business in the Pacific Rim.
"MBSing" means Millipore Biosciences Singapore Pte. Limited, a new Singapore
corporation to be formed to receive and operate the BioPharmaceutical,
Analytical and Laboratory Water Divisions business in Singapore after the
Separation.
"MFHC BV" means Millipore France Holding Company BV, a Netherlands company and
the holding company for Millipore SAS and MiE SAS, the two French companies
resulting from the demerger of MilSA pursuant to Steps 1F through 1J below.
"MIHC BV" means Millipore International Holding Company BV, a Netherlands
company and the holding company for several non-U.S. Millipore subsidiaries.
Exhibit H -- 2
"MIHL" means Millipore Investment Holdings Limited, a Delaware corporation with
its offices at 103 Foulk Road, Wilmington, Delaware; as of December 31, 2000,
MIHL was the immediate parent corporation of MIHC BV.
"MilChina" means Millipore China Limited, a Hong Kong company, which is a
subsidiary of MIHC BV and the entity through which Millipore conducts import
sales operations in the Peoples Republic of China.
"MilGmbH" means Millipore GmbH, a German corporation, which is a subsidiary of
MIHC BV and the entity through which Millipore conducts sales operations in
Germany.
"MilIndia" means Millipore (India) Private Limited, an Indian company which is
a joint venture company that is 40% owned by MAL and is the entity through
which Millipore conducts sales and local packaging and assembly operations in
India.
"MilKorea" means Millipore Korea Ltd., a Korean corporation which is a
subsidiary of MAL and the entity through which Millipore conducts sales
operations in Korea; pursuant to Step 5 H below MilKorea will change its name
to Millipore MicroElectronics Korea Ltd., thereafter it will be referred to
herein as "MMIKorea"
"MBKorea" means Millipore Biosciences Korea Ltd., a newly formed Korean
corporation which is a subsidiary of MBAL and the entity through which
Millipore will conduct Bioscience sales operations in Korea.
"MilSA" means Millipore SA, a French corporation which is a subsidiary of MIHC
BV and the entity through which Millipore conducts manufacturing and sales
operations in France; after the demerger of MilSA pursuant to steps 1F through
1J the resulting company which will conduct the BioScience manufacturing and
sales business in France will be named Millipore SAS and will be referred to
herein as "MilSAS".
"MiESAS" means Millipore MiE SAS a French company formed by the demerger of
MilSA pursuant to Steps 1F through 1J in order to hold certain assets of the
Microelectronics business conducted by MilSA prior to the demerger.
"MilSing" means Millipore Singapore Pte Ltd., a Singapore corporation which is
a subsidiary of MAL and the entity through which Millipore conducts sales
operations in Singapore; pursuant to Step 5 E below, MilSing will change its
name to Millipore MicroElectronics Singapore Pte. Ltd. and will thereafter be
referred to herein as "MMISing".
"MilUK" means Millipore UK Ltd., a United Kingdom company which is a subsidiary
of MIHC BV and the entity through which Millipore conducts manufacturing and
sales operations in the United Kingdom prior to the Separation; pursuant to
Step 1-A MilUK will change its name to Millipore MicroElectronics Limited and
will thereafter be referred to herein as "MMIUK".
"MilBUK" means Millipore BioSceinces UK Ltd., a United Kingdom company formed
by MilUK pursuant to Step 1 which is a subsidiary of MIHC BV and the entity
through which Millipore will conduct manufacturing and sales operations in the
United Kingdom after the Separation; pursuant to Step 1 B MilBUK will change
its name to Millipore UK Limited.
Exhibit H -- 3
"MIRE" means Millipore Ireland BV, a Netherlands company tax resident in
Ireland located at Carrigtwohill, County Cork, Ireland, which conducts
manufacturing operations in Ireland.
"MMI" means Millipore MicroElectronics, Inc., a Delaware corporation, which is
a direct subsidiary of Millipore and the corporation which will receive the
business and certain of the assets and liabilities of Millipore's
Microelectronics Division pursuant to the Separation, will conduct the IPO and
the stock of which is proposed to be distributed by Millipore in the
Distribution.
"MMI BV" means Millipore MicroElectronics BV, a Netherlands company to be
formed to act as a holding company for MMISAS, MMIGmbH, NihonMMI and MMIUK
after the Separation.
"MMIGmbH" means Millipore MicroElectronics GmbH, a German corporation to be
formed to receive the business and certain of the assets and liabilities of
Millipore's Microelectronics Division located in Germany and to conduct MMI
sales operations in Germany after the Separation.
"MMI-IRE" means Millipore MicroElectronics Ireland Ltd., an Irish limited
company to be formed to take ownership of the intellectual property assets
currently owned by MIRE which are related to the Microelectronics business.
"MMISAS" means Millipore MicroElectronics SAS, a French simplified corporation
to be formed to receive the business and certain of the assets and liabilities
of Millipore's Microelectronics Division located in France and to conduct MMI
sales operations in France after the Separation.
"MMIUK" means MilUK after it changes its name to Millipore MicroElectronics
(U.K.) Limited, which will conduct MMI sales and manufacturing operations in
the United Kingdom after the Separation.
"MPac" means Millipore Pacific Ltd., a Delaware corporation, which currently
holds Millipore's two subsidiaries in the Peoples Republic of China, MSuzhou
and MShanghai.
"MShanghai" means Millipore (Shanghai) Trading Company Limited. a wholly owned
foreign enterprise organized under the laws of the Peoples Republic of China
which is located in the Waigaoqiao Free Trade Zone, Shanghai Municipality, PRC
and conducts trading and import operations in the PRC.
"MSuzhou" means Millipore (Suzhou) Filter Company Ltd. a wholly owned foreign
enterprise organized under the laws of the Peoples Republic of China which is
located in Suzhou, PRC and conducts manufacturing operations in the PRC.
"NihonM" means Nihon Millipore Ltd., a Japanese corporation, which is a
subsidiary of MIHC BV and the entity through which Millipore conducts
manufacturing and sales operations in Japan; pursuant to Step 2 F NihonM will
amend its charter to change its name to Nihon Millipore MicroElectronics KK
and will thereafter be referred to herein as "NihonMMI".
Exhibit H -- 4
"NihonMB" means Nihon Millipore Biosciences Ltd., a new Japanese corporation to
be organized as a wholly owned subsidiary by NihonM pursuant to Step 2 B below
in order to receive the business assets and liabilities allocated to
Millipore's ongoing BioPharmaceutical, Analytical and Laboratory Water
Divisions business in Japan; pursuant to Step 2 F NihonMB will amend its
charter to change its name to Nihon Millipore Limited and will thereafter be
referred to herein as "NML".
Objective of Plan of Reorganization. The objective of the Plan of Reorganization
is to move the personnel, assets and operations engaged in the conduct of the
MMI Business outside of the United States to MMI in as efficient a manner as
possible, subject to compliance with local laws and regulations. At the
completion of the Plan of Reorganization, MMI will conduct direct operations
through branch offices or subsidiaries in Japan, Taiwan, Korea, United Kingdom,
France, Germany, Singapore, Peoples Republic of China and the Netherlands.
Description of Plan of Reorganization. The Plan of Reorganization will consist
of five major steps each with a number of specific action items. Steps 1, 2 and
5 will proceed concurrently and will be completed prior to the Separation Date.
Step 3 will commence prior to the Separation Date but will be completed
following the Separation Date as soon as Netherlands legal procedures permit.
Step 4 will promptly follow the completion of Step 3. Generally, unless
otherwise indicated, the action items within each step will be undertaken
contemporaneously.
Steps Preparatory to the Plan of Reorganization. Prior to the Commencement of
Step 1 of the Plan of Reorganization MIHL, the direct parent corporation of
MIHC BV, was merged up into Millipore, with Millipore as the surviving
corporation under Delaware and Massachusetts law. As a result of this merger,
Millipore became the direct parent corporation of MIHC BV and the owner of all
of the intellectual property previously owned by MIHL.
Exhibit H -- 5
As of December 31, 2000, the legal entity structure of Millipore pertinent
to this Plan of Reorganization of Operations Outside of the U.S. was as
follows:
Diagram #1
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[DIAGRAM OF CORPORATE STRUCTURE APPEARS HERE]
Exhibit H -- 6
After the Plan of Reorganization is completed, and before the Distribution
the legal entity structure of MMI and the pertinent portion of the Millipore
legal entity structure outside of the United States will be as follows:
[DIAGRAM OF CORPORATE STRUCTURE APPEARS HERE]
Diagram #2
==========
Exhibit H -- 7
Step 1. Demerger of European Subsidiaries
United Kingdom
==============
A. MilUK forms MilBUK as a new wholly owned limited liability company under
UK law and transfers all of its assets, subject to the liabilities,
related to the ongoing BioPharmaceutical, Analytical and Laboratory
Water Divisions business to MilBUK in consideration for the issue of
capital stock.
. The details of these transfers and of certain transition arrangements
particular to business operations in the United Kingdom will be set
forth in a United Kingdom Local Transfer and Transition Services
Agreement between MilUK and MilBUK.
B. MilUK amends its charter to change its name to Millipore
MicroElectronics (U.K.) Limited (MMIUK). MilBUK amends its charter to
change its name to Millipore (U.K.) Limited.
C. MMIUK distributes all of the issued and outstanding capital stock of
MilBUK to MIHC.
. In accordance with the group reconstruction relief provisions of UK
accounting principles, this distribution will be valued at book
value, so that the earnings and profits of MMIUK will be sufficient
to support this distribution under the UK Companies Law.
Germany
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D. Prior to the date on which a decision to demerge MilGmbH is made, the
MilGmbH BioPharmaceutical, Analytical and Laboratory Water Divisions
business is separated (in terms of independent viability, assets, staff,
premises, books) from the MilGmbH Microelectronics business so that
these businesses constitute two Tielbetriebs under German case law.
E. MilGmbH undergoes a tax-free spin-off type demerger under German law
pursuant to which all of the business and certain of the assets and
liabilities related to Millipore's Microelectronics Division is
transferred to a new German company created by the demerger, MMIGmbH, in
consideration of the issue by MMIGmbH to MIHC BV of shares with a value
equal to the book value of those assets and operations.
. Included in the assets transferred to MMIGmbH is the assignment of
the leases to the Dresden and Eching service centers.
. The details of these transfers and of certain transition arrangements
particular to business operations in Germany will be set forth in a
Germany Local Transfer and Transition Services Agreement between
MMIGmbH and MilGmbH.
Exhibit H -- 8
France
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F. MIHC BV organizes MFHC under the laws of the Netherlands and
capitalizes it by the transfer of its entire holdings of the capital
stock of MilSA. MFHC issues to MIHC BV class A nominee shares, carrying
all rights to income and assets upon liquidation with respect to the
BioScience business of Millipore SA, and class B nominee shares,
carrying the all rights to income and assets upon liquidation with
respect to the Microelectronics business of Millipore SA. MFHC makes an
election to be disregarded as a legal entity by "checking the box"
under U.S. tax law and also elects out of partnership treatment under
IRC (S)761.
G. MilSA is legally demerged under French law into two companies, each of
which will make elections to convert into a simplified company (SAS):
MilSAS, which holds all of the assets related to the Bioscience
business formerly held by MilSA and MiESAS which holds all of the
assets related to the Microelectronics business formerly held by MilSA.
. Included in the assets held by MiESAS is a sublease of 186 sq. m of
clean room space in St. Quentin for use as a service center.
H. MIHC BV organizes Millipore MicroElectronics SAS under the laws of
France as the entity to conduct the MMI business in France.
I. MiESAS makes an election to be disregarded as a legal entity by
"checking the box" under U.S. tax law.
. The details of these transfers and of certain transition
arrangements particular to business operations in France will be set
forth in a France Local Transfer and Transition Services Agreement
between MMISAS and MilSAS.
J. MMISAS enters into a 3 year business lease agreement with MiESAS which
will permit MMISAS to operate the business and assets owned by MiESAS
in consideration of a royalty equal to 5% of annual revenues from the
Microelectronics business as conducted by MMISAS under the business
lease. By virtue of this business lease agreement the employees of
MiESAS will be automatically transferred to MMISAS by operation of law.
. At the end of the 3 year term of the business lease the relevant
parties will meet to determine whether renewal of the business lease
is appropriate or whether it is appropriate to liquidate MFHC (in
the latter event the capital stock of MiESAS would be distributed to
MMI BV as the holder of the B Nominee shares and the capital stock
of MilSAS would be distributed to MIHCBV as the holder of the A
Nominee shares).
Exhibit H -- 9
Italy
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K. The customer list (goodwill) of the Microelectronics business of
Millipore S.p.A., an Italian company which is the subsidiary of MIHC
BV that conducts sales operations in Italy, is sold to MMISAS in
consideration of cash.
. Millipore S.p.A. would, as a consequence, cease to have the right
to conduct the microelectronics business in Italy.
. Millipore S.p.A. will sell all of its inventory (whether located on
customer premises or on its premises) to MMI SAS
. The Millipore S.p.A. microelectronics sales employee resigns from
Millipore S.p.A.
. MMI SAS hires the Millipore S.p.A. microelectronics sales employee.
L. MMISAS opens a representative office presence in Italy, staffed by the
single Microelectronics sales person in Italy; this individual who
will be moved to the MMISAS payroll, will solicit sales orders from
Italian Microelectronics customers but will have no authority to
accept any order or to otherwise bind MMISAS in any manner.
. Since sales people have no authority to accept orders or make any
binding commitment on behalf of MMISAS, and will work out of home
offices, there will be no permanent establishment of MMISAS in
Italy.
Ireland
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M. MIHC BV organizes MMI-IRE as a limited company under the laws of
Ireland.
N. MIRE enters into an agreement with MMI-IRE to sell all of MIRE's
intellectual property related to the Microelectronics business to MMI-
IRE pursuant to a 3 year irrevocable license agreement which provides
for an actual use based declining royalty with respect to membrane
manufactured of 30%, 15% and 5% during the first, second and third
years of its 3 year term, respectively and for an actual use based
declining royalty with respect to cartridges and other devices
manufactured of 3%, 1% and 0.5% during the first, second and third
years of its 3 year term, respectively. Each of these royalties is
calculated by multiplying the foregoing percentages times the
applicable sales price of all products manufactured by MMI-IRE in
Ireland by use of the licensed intellectual property during the first,
second and third years of the license term, respectively. At the
expiration of the three year license term, title to the licensed
intellectual property passes to MMI-IRE (whether or not royalties have
been theretofore payable under the license). In addition, at the time
the license is entered into MMI-IRE pays MIRE cash equal to the
residual value of the licensed intellectual property at the expiration
of the three year term of the license.
This agreement for the sale of the intellectual property is subject to
a condition precedent that the "spin-off" of MMI by Millipore shall
have been completed.
Exhibit H -- 10
. The residual value of the patents included in the licensed
intellectual property will be IR(Pounds)10,000 and the residual
value of the know-how included in the licensed intellectual
property will determined by an appraisal conducted by an engineer
employed by MIRE who is acceptable to MMI-IRE.
After the completion of Step 1 the subsidiary structure of MIHC BV will be
as follows:
Diagram #3
==========
[DIAGRAM OF CORPORATE STRUCTURE APPEARS HERE]
Step 2. Separation of BioPharmaceutical, Analytical and Laboratory Water
Divisions business from Microelectronics Division Business in Japan.
Contemporaneously with the actions specified in Step 1 above, NihonM will
separate as follows:
A. MIHC BV organizes a Branch in Japan to receive certain assets of
BioPharmaceutical, Analytical and Laboratory Water Divisions of
NihonM.
B. NihonM organizes a new Japanese company, Nihon Millipore Biosciences
K.K. (NihonMB), as a wholly owned subsidiary.
C. NihonM transfers its current assets, liabilities and its employees
(with their consent) allocated to the BioPharmaceutical, Analytical
and Laboratory Water Divisions to NihonMB for cash equal to the net
book value of such current assets and liabilities.
. The details of these transfers and of certain transition
arrangements particular to business operations in Japan will be set
forth in a Japan Local Transfer and Transition Services Agreement
between NihonMMI and NML.
Exhibit H -- 11
D. NihonM transfers its fixed assets allocated to the BioPharmaceutical,
Analytical and Laboratory Water Divisions to the Japanese Branch of
MIHC BV for a cash equal to book value.
. The Japanese Branch of MIHC BV leases these fixed assets to NihonMB
pursuant to a lease that provides for a single up-front license fee
payable at the time the lease is entered into; the lease will be
for a term of 2 years and 1 day and at the expiration of the lease,
Nihon MB will purchase the fixed assets from the Japanese Branch of
MIHC BV at book value. After this the Japanese Branch of MIHC BV is
de-registered under Japanese law.
E. NihonM transfers all of its intellectual property related to the
BioPharmaceutical, Analytical and Laboratory Water Divisions business
to NihonMB pursuant to a 3 year irrevocable license Agreement which
provides for a declining royalty of 3%, 1% and 0.5% during the first,
second and third years of its 3 year term, respectively. This royalty
is calculated by multiplying the foregoing percentages times the sales
price of all products made by NihonMB in Japan by use of the licensed
intellectual property during the first, second and third years of the
license term, respectively. At the expiration of the three year
license term, title to the licensed intellectual property passes to
NihonMB.
F. NihonM changes its name to Nihon Millipore MicroElectronics K.K.
(NihonMMI). NihonMB amends its charter to change its name to Nihon
Millipore Ltd. (NML).
G. NihonMMI distributes all of the issued and outstanding capital stock
of NML to MIHC.
Steps 1 and 2 must be completed prior to the Separation Date (3/31/01).
Step 3. Split-off of MIHC BV into MIHC BV and Millipore MicroElectronics BV.
After the completion of the actions specified in Steps 1 and 2 above, MIHC
BV will undergo a Split-off under Dutch law as follows:
A. Millipore as the sole shareholder of MIHC BV adopts a resolution
approving the legal split-off under Netherlands law.
B. A Notarial Deed effecting the split-off and the incorporation of
Millipore MicroElectronics BV (MMI BV) is executed (Ministry of
Justice approval of a draft deed having previously been obtained) and
filed with appropriate Dutch authorities. This instrument will be
effective to incorporate MMI BV, to cancel the outstanding shares of
MIHCBV and to replace them with shares of MMI BV and the post demerger
MIHCBV and to transfer all of the shares of MMISAS, MMI GmbH, MMIUK,
MMI-IRE, NihonMMI as well as the B Nominee shares of MFHC to MMI BV.
C. Upon the effectiveness of the filing of the Notarial Deed, Millipore
will own 100% of both MIHC BV and MMI BV.
Exhibit H -- 12
Step 4. Transfer of MMI BV to MMI. After the completion of the actions
specified in Steps 1 through 3 above, the new MMI European subsidiary
structure will be transferred to MMI as follows:
A. Millipore contributes the shares of MMI BV and all of the intellectual
property relating to the Microelectronics division business to MMI as
a contribution to capital in accordance with IRC (S)351. As a result
of this transaction, MMI becomes the holder of all of the capital
stock of MMI BV.
B. Notarial deeds of transfer reflecting the change of ownership of the
MMI BV shares to MMI are duly recorded with appropriate Dutch
authorities.
At the conclusion of Step 4, MMI will hold the new MMI European subsidiary
structure and NihonMMI through MMI BV.
After the completion of Step 4 the Millipore European and Japanese
subsidiary structure will be as follows:
Diagram #4
==========
[DIAGRAM OF CORPORATE STRUCTURE APEARS HERE]
Exhibit H -- 13
Step 5. Transfer of Non-Japanese Asia Subsidiaries to MMI. Contemporaneous
with the actions specified in Steps 1 and 2 above, the existing Millipore
Pacific Rim subsidiary structure will be transferred to MMI as follows:
A. MAL distributes all its 40% holdings in MIndia to Millipore.
B. MAL organizes MBAL as a wholly owned subsidiary under the laws of
Delaware.
Singapore
C. MilSing changes its name to Millipore MicroElectronics Singapore Pte
Ltd. (MMISing).
D. MBAL forms a new wholly-owned subsidiary in Singapore, Millipore
Biosciences Singapore Pte. Ltd. (MBSing).
E. MMISing transfers the assets and liabilities allocated to the MilSing
BioPharmaceutical, Analytical and Laboratory Water Divisions business
to MBSing in consideration for cash equal to book value.
. The details of these transfers and of certain transition
arrangements particular to business operations in Singapore will be
set forth in a Singapore Local Transfer and Transition Services
Agreement between MMISing and MBSing.
Korea
F. MilKorea changes its name to Millipore MicroElectronics Korea Ltd.
(MMIKorea).
G. MBAL forms a new wholly-owned subsidiary in Korea, Millipore
Biosciences Korea Ltd. (MBKorea)
H. MMIKorea transfers the assets and liabilities allocated to the
BioPharmaceutical, Analytical and Laboratory Water Divisions business
in Korea to MBKorea at book value, payable in cash.
. The details of these transfers and of certain transition
arrangements particular to business operations in Korea will be set
forth in a Korea Local Transfer and Transition Services Agreement
between MMIKorea and MBKorea.
Taiwan
I. MBAL registers a Branch office in Taiwan.
J. The Taiwan Branch of MAL transfers the assets and liabilities
allocated to the BioPharmaceutical, Analytical and Laboratory Water
Divisions business in Taiwan to the Taiwan branch of MBAL in
consideration of cash equal to the book value of such assets.
. The details of these transfers and of certain transition
arrangements particular to business operations in Taiwan will be
set forth in a Taiwan Local Transfer and Transition Services
Agreement between MAL and MBAL.
Exhibit H -- 14
Malaysia
K. MBAL registers a Branch office in Malaysia.
L. The Malaysia Branch of MAL transfers the assets and liabilities
allocated to the BioPharmaceutical, Analytical and Laboratory Water
Divisions business in Malaysia to the Malaysian Branch of MBAL in
consideration of cash equal to the book value of such assets.
. The details of these transfers and of certain transition arrangements
particular to business operations in Malaysia will be set forth in a
Malaysia Local Transfer and Transition Services Agreement between MAL
and MBAL.
Hong Kong
M. MAL will continue to operate its Hong Kong Branch.
. The details of certain asset transfers and of certain transition
arrangements particular to business operations in Hong Kong and China
will be set forth in a Hong Kong Local Transfer and Transition
Services Agreement between MAL and MilChina.
Completion of Step 5
N. MAL distributes all of the capital stock of MBAL to Millipore.
O. On the Separation Date Millipore transfers all of the issued and
outstanding Common Stock of MAL to MMI as a contribution to capital.
At the conclusion of Step 5 the Millipore Subsidiary Structure in Europe and
Asia will be as set forth in Diagram #2 above.