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Exhibit 10.23
FRESENIUS AG
FRESENIUS USA, INC.
May 8, 1996
W. R. Grace & Co.
One Town Center Road
Boca Raton, FL 33486-1010
Ladies and Gentlemen:
We refer to the Agreement and Plan of Reorganization dated as of February
4, 1996 (the "Agreement") by and between W. R. Grace & Co. ("Grace") and
Fresenius AG ("Fresenius AG") and confirm our agreement as follows:
1. In each of (a) clause (iii) of the proviso to paragraph (e) of
Section 4.2 of the Agreement and (b) the second sentence of section 2.3(a)
of Exhibit D to the Agreement, the figure "50.3%" shall be substituted for
the figure "51%."
2. Subject to the terms of paragraph 6 hereof, and on the condition
that no more than 70 million Newco Ordinary Shares are outstanding
immediately following consummation of the Reorganization, in accordance
with Section 4.2(e) of the Agreement, Fresenius AG hereby notifies Grace
that the Fresenius USA Consideration Per Share shall be equal to 0.37067735
Newco Ordinary Shares.
3. Subject to the terms of paragraph 6 hereof and Section 9.1 of the
Agreement, in accordance with Section 9.13 of the Agreement, Fresenius USA
hereby undertakes the obligations contained therein as a party and, for
itself, makes directly to Grace the representations and warranties
contained in the Agreement with respect to itself.
4. Subject to the terms of Section 9.1 of the Agreement, Fresenius USA
hereby represents and warrants to Grace that subject only to the receipt of
the requisite approval of its shareholders, Fresenius USA has the requisite
corporate power and authority and has taken all corporate action necessary
in order to execute, deliver and perform each Transaction Agreement to
which it is a party and to consummate the transactions contemplated by the
Agreement and the Transaction Agreements including, without limitation, the
approval of the Board of Directors of Fresenius USA and the resolution of
the Board of Directors of Fresenius USA to recommend the transactions
contemplated by the Agreement and the Transaction Agreements for approval
by Fresenius USA shareholders, subject to their fiduciary duties.
5. All notices, requests, claims, demands and other communications to
Fresenius USA under the Agreement shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery in
the manner set forth in the Agreement, addressed as follows:
Fresenius USA, Inc.
2637 Shadelands Drive
Walnut Creek, CA 94598
Attn: Dr. Ben Lipps
Fax: (510) 988-1941
with copies to:
Ropes & Gray
One International Place
Boston, MA 02110-2624
Attn: Winthrop G. Minot, Esq.
Fax: (617) 951-7051
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Exhibit 10.23
W. R. Grace & Co.
May 8, 1996
Page 2
and
O'Melveny & Myers
Citicorp Center
153 East 53rd Street
New York, NY 10022-4611
Attn: Dr. Ulrich Wagner
Fax: (212) 326-2061
6. If there shall be in excess of 9,253,331 Fresenius USA Common Share
Equivalents outstanding immediately prior to the effective time of the
Fresenius USA Merger, the terms of paragraphs 2, 3 and 4 hereof shall be
automatically void and of no further force or effect, without any action on
the part of any party hereto.
7. Terms capitalized but not defined in this letter shall have the
meanings ascribed to them in the Agreement.
8. This letter agreement may be executed in several counterparts, each
of which shall be an original and all of which shall be deemed to be one
and the same Agreement.
9. This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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Exhibit 10.23
Please confirm your agreement to the foregoing by executing duplicate
copies of this letter and returning one executed copy to each of Fresenius AG
and Fresenius USA.
Very truly yours,
FRESENIUS AG
By: /s/ GERD KRICK
------------------------------------
Name: Gerd Krick
Title: Chief Executive Officer
By: /s/ MATHIAS KLINGLER
------------------------------------
Name: Mathias Klingler
Title: President and Chief
Operating
Officer -- Dialysis Systems
Division
FRESENIUS USA, INC. (with
respect only to paragraphs 3
through 9, inclusive)
By: /s/ BEN LIPPS
------------------------------------
Name: Ben Lipps
Title: President
AGREED
W. R. Grace & Co.
By: /s/ Paul McMahon
----------------------------------
Name: Paul McMahon
Title: Vice President
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