UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 6, 2015
Graco Inc.
(Exact name of
registrant as specified in charter)
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Minnesota
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001-09249
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41-0285640
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(State or other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
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88 11th Avenue Northeast
Minneapolis,
Minnesota |
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55413
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(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (612) 623-6000
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Not
Applicable
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(Former name or former address if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry Into a Material Definitive Agreement.
On October 7, 2014, Graco Inc. and its subsidiary, Finishing Brands Holdings Inc. (collectively, the Sellers),
entered into an Asset Purchase Agreement (the Agreement) with Carlisle Companies Incorporated and its subsidiary, Carlisle Fluid Technologies, Inc. (collectively, the Purchasers).
On March 6, 2015, the Sellers and the Purchasers entered into an Amendment No. 1 to the Agreement (the Amendment). The
Amendment adds the definitions of Gema Powder Finishing Products and Liquid Finishing Business Products, amends certain other defined terms, and deletes defined terms that are not used in the Agreement following the Amendment. The Amendment also
amends pre-closing covenants concerning certain foreign governmental approvals and related closing conditions and closing procedures, amends post-closing covenants relating to confidentiality and covenants not to sue, and eliminates covenants
relating to the non-solicitation of customers. Further, the Amendment clarifies that the October 6, 2014 final Decision and Order of the Federal Trade Commission will govern the Agreement (as amended by the Amendment) and the ancillary
agreements. Through the Amendment, the parties also agreed to revise forms of certain ancillary agreements.
This foregoing summary of the
Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the Amendment attached hereto as Exhibit 2.1.
Item 9.01 |
Financial Statements and Exhibits. |
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2.1 |
Amendment No. 1 to Asset Purchase Agreement entered into as of March 6, 2015 by and among Carlisle Companies Incorporated, Carlisle Fluid
Technologies, Inc., Graco Inc. and Finishing Brands Holdings Inc. (excluding schedules and exhibits, which the Registrant agrees to furnish supplementally to the Securities and Exchange Commission upon request). |
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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GRACO INC. |
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Date: March 9, 2015 |
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By: |
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/s/ Karen Park Gallivan |
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Karen Park Gallivan |
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Its: Vice President, General Counsel and Secretary |
EXHIBIT INDEX
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Exhibit |
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Description |
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Method of
Filing |
2.1 |
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Amendment No. 1 to Asset Purchase Agreement entered into as of March 6, 2015 by and among Carlisle Companies Incorporated, Carlisle Fluid Technologies, Inc.,
Graco Inc. and Finishing Brands Holdings Inc. (excluding schedules and exhibits, which the Registrant agrees to furnish supplementally to the Securities and Exchange Commission upon request). |
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Filed Electronically |
EXHIBIT 2.1
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (including all schedules, exhibits and other agreements attached hereto or made a part
hereof, this Amendment) is made and entered into as of March 6, 2015, by and among Carlisle Companies Incorporated, a Delaware corporation (Purchaser Parent), Carlisle Fluid Technologies, Inc., a Delaware
corporation (US Purchaser), Graco Inc., a Minnesota corporation (Graco), and Finishing Brands Holdings Inc., a Minnesota corporation (Graco US Finishing Brands).
WITNESSETH:
WHEREAS,
Purchaser Parent, US Purchaser, Graco and Graco US Finishing Brands are parties to that certain Asset Purchase Agreement, dated as of October 7, 2014 (the Asset Purchase Agreement); and
WHEREAS, the parties desire to amend the Asset Purchase Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants and agreements hereinafter set forth, the adequacy
and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined
herein shall have the meanings given to such terms in the Asset Purchase Agreement.
2.
Incorporation by Reference. The Asset Purchase Agreement is hereby specifically referred to and incorporated as a part of this Amendment. In all respects, other than as specifically herein amended, the terms and conditions of the
Asset Purchase Agreement shall continue in full force and effect.
3. Definition of
Business Intellectual Property. The Asset Purchase Agreement is hereby amended by deleting in its entirety the definition of Business Intellectual Property contained in Article 1 of the Asset Purchase Agreement and
replacing it with the following:
Business Intellectual Property means: (a) all Intellectual
Property that is owned by any Asset Selling Subsidiary related to the Liquid Finishing Business (exclusive of the Stray Powder Business), including, but not limited to, any Intellectual Property owned by any Asset Selling Subsidiary related to the
Liquid Finishing Business (exclusive of the Stray Powder Business) that is listed on Schedule 1.4 and any DeKups Intellectual Property that is owned by any Asset Selling Subsidiary; (b) all Intellectual Property that is owned by any
Asset Selling Subsidiary and is necessary for making, having made, using, offering for sale, selling, importing or exporting DeVilbiss Powder Finishing Products, including, but not limited to, any such Intellectual Property owned by any Asset
Selling Subsidiary that is listed on Schedule 1.4; (c) all Intellectual Property that is owned by any Asset Selling Subsidiary and is necessary for making, having made, using,
offering for sale, selling, importing or exporting Ransburg Powder Finishing Products, including, but not limited to, any such Intellectual Property owned by any Asset Selling Subsidiary that is listed on Schedule 1.4 and any Divested Stray
Ransburg Powder IP that is owned by any Asset Selling Subsidiary; and (d) all Intellectual Property that is owned by any Acquired Subsidiary, including, but not limited to, any Intellectual Property owned by any Acquired Subsidiary that is
listed on Schedule 1.4, any DeKups Intellectual Property that is owned by any Acquired Subsidiary, any Divested Stray Ransburg Powder IP that is owned by any Acquired Subsidiary, and any Intellectual Property owned by any Acquired Subsidiary
that is listed on Schedule 1.4 and necessary for making, having made, using, offering for sale, selling, importing or exporting DeVilbiss Powder Finishing Products; provided, however, that, notwithstanding the foregoing,
Business Intellectual Property shall specifically exclude: (i) any and all Excluded Domain Names; (ii) any and all Retained Stray Ransburg Powder IP; (iii) any and all Intellectual Property related to the Powder Finishing Business,
except to the extent that any such Intellectual Property is DeKups Intellectual Property, is set forth on Schedule 1.2(a) or Schedule 1.4 or is ordered pursuant to the Final Order to be divested by Graco, in which case such
Intellectual Property shall constitute Business Intellectual Property even if related to the Powder Finishing Business; and (iv) any and all Intellectual Property related to the Graco Liquid Finishing Business.
4. Definition of Gema Powder Finishing Products. The Asset Purchase
Agreement is hereby further amended by inserting the following definition of Gema Powder Finishing Products in Article 1 of the Asset Purchase Agreement in such place so as to maintain the alphabetical order of the defined terms
contained in Article 1 of the Asset Purchase Agreement:
Gema Powder Finishing Products means the
powder finishing systems and products (other than the powder finishing systems and products described in clauses (b) and (c) of the definition of Liquid Finishing Business Products) that were manufactured, sold or serviced by
ITW Parent or any of its Affiliates prior to the consummation of the transactions contemplated by the ITW Purchase Agreement, including, but not limited to, powder finishing systems and products under the Gema trademarks or brand names that were
manufactured, sold or serviced by ITW Parent or any of its Affiliates prior to the consummation of the transactions contemplated by the ITW Purchase Agreement, as well as any improvements or additions to the foregoing powder finishing systems and
products that are specifically directed to developing, assembling, manufacturing, distributing, selling or servicing such powder finishing systems and products.
5. Definition of Liquid Finishing Business Products. The Asset Purchase
Agreement is hereby further amended by inserting the following definition of Liquid Finishing Business Products in Article 1 of the Asset Purchase Agreement in such place so as to maintain the alphabetical order of the defined terms
contained in Article 1 of the Asset Purchase Agreement:
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Liquid Finishing Business Products means: (a) the liquid
finishing systems and products that were manufactured, sold or serviced by ITW Parent or any of its Affiliates prior to the consummation of the transactions contemplated by the ITW Purchase Agreement, including, but not limited to, liquid finishing
systems and products under the Binks, DeVilbiss, Ransburg and BGK trademarks or brand names that were manufactured, sold or serviced by ITW Parent or any of its Affiliates prior to the consummation of the transactions contemplated by the ITW
Purchase Agreement, as well as any improvements or additions to the foregoing liquid finishing systems and products described in this clause (a) that are specifically directed to developing, assembling, manufacturing, distributing,
selling or servicing such liquid finishing systems and products; (b) the DeVilbiss Powder Finishing Products that were manufactured, sold or serviced by ITW Parent or any of its Affiliates prior to the consummation of the transactions
contemplated by the ITW Purchase Agreement, any predecessor product to the foregoing products described in this clause (b), and any pre-Closing improvements or additions to the foregoing products described in this clause (b) to
the extent not covered by any valid claim of any Acquired ITW Intellectual Property that is not Business Intellectual Property, including, but not limited to, Category 1 Graco Licensed Intellectual Property and Category 2 Graco Licensed Intellectual
Property (in each case, as defined in the Cross License Agreement); and (c) the Ransburg Powder Finishing Products that were manufactured, sold or serviced by ITW Parent or any of its Affiliates prior to the consummation of the transactions
contemplated by the ITW Purchase Agreement, any predecessor product to the foregoing products described in this clause (c), any pre-Closing improvements or additions to the foregoing products described in this clause (c) to the
extent not covered by any valid claim of any Acquired ITW Intellectual Property that is not Business Intellectual Property, including, but not limited to, Category 1 Graco Licensed Intellectual Property and Category 2 Graco Licensed Intellectual
Property (in each case, as defined in the Cross License Agreement), and any pre-Closing improvements or additions to any of the Ransburg Powder Finishing Products identified on Schedule 1.6(b) that were manufactured, sold or serviced by the
Stray Powder Business (whether as operated by ITW Parent or any of its Affiliates or by Graco or any of its Affiliates) prior to the Closing to the extent covered by a valid claim of U.S. Patent No. 6,562,138 or any continuations, divisionals,
continuations-in-part, reissues, reexaminations or foreign counterparts of U.S. Patent No. 5,686,149 (which expired or was abandoned prior to the date hereof) but not to the extent covered by any valid claim of any other Acquired ITW
Intellectual Property that is not Business Intellectual Property.
6. Deletion of
Certain Definitions. The Asset Purchase Agreement is hereby further amended by deleting in their entirety the definitions of Competitive Powder Finishing Product, DeVilbiss Powder Finishing Products Field of
Use, Existing Powder Finishing Business Customer, Historical DeVilbiss Powder Finishing Products, Historical Gema Powder Finishing Products, Historical Liquid Finishing Products, Historical
Ransburg Powder Finishing Products and Ransburg Powder Finishing Products Field of Use contained in Article 1 of the Asset Purchase Agreement.
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7. Section 6.1(d). The
Asset Purchase Agreement is hereby further amended by deleting in its entirety the language, (including, but not limited, to the Final Order and the Hold Separate Trustee, contained in the first sentence of Section 6.1(d) of the
Asset Purchase Agreement and replacing it with the following: (including, but not limited to, the Final Order) and the Hold Separate Trustee.
8. Section 6.1(j)(ii). The Asset Purchase Agreement is hereby further
amended by deleting in its entirety Section 6.1(j)(ii) of the Asset Purchase Agreement and replacing it with the following:
(ii) As soon as reasonably practicable following the date hereof,
(1) Purchaser Parent will notify Graco of the identity of each Subsidiary of Purchaser Parent that will execute a Non-U.S. Subsidiary Purchase Agreement. Graco shall, and shall cause the Subsidiary Sellers to, duly execute and deliver, and
Purchaser Parent shall, and shall cause its applicable Subsidiaries (whether existing as of the date hereof or formed after the date hereof) to, duly execute and deliver, the Non-U.S. Subsidiary Purchase Agreements at Closing, or in the case of
Graco China Finishing Brands, as soon as reasonably practicable following the date hereof to facilitate the government approval necessary to transfer the shares of Graco China Finishing Brands. In the event that the government approval necessary to
transfer the shares of Graco China Finishing Brands has not been secured, and the applicable Governmental Authority(ies) responsible for making the determination in respect of such government approval has not delivered a final written rejection of
such transfer, and all other conditions set forth in Sections 7.1 and 7.2 (other than such conditions set forth in Sections 7.1 and 7.2 relating to the government approval necessary to transfer the shares of Graco China
Finishing Brands and other than conditions set forth in Sections 7.1 and 7.2 with respect to actions that are to be taken at the Closing) have been waived or satisfied, the parties hereto shall nevertheless cause the Closing to occur
and: (A) at the Closing, the parties hereto shall cause the applicable Seller and Purchaser under the Non-U.S. Subsidiary Purchase Agreement pursuant to which the shares of Graco China Finishing Brands are to be purchased and sold, to enter
into a Beneficial Interest and Control Agreement, in form and substance reasonably satisfactory to Graco and Purchaser Parent, pursuant to which such applicable Seller and Purchaser agree (among other things) that, until such time as the government
approval necessary to transfer the shares of Graco China Finishing Brands has been obtained, the business of Graco China Finishing Brands shall be operated for the benefit and burden of such applicable Purchaser, and such applicable Purchaser shall
be entitled to control and direct all operations of Graco China Finishing Brands; and (B) notwithstanding anything to the contrary contained in this Agreement, the effectiveness of any representation, warranty, covenant or other agreement
contained in this Agreement in respect of the shares of Graco China Finishing Brands (whether as an Acquired Asset or otherwise) shall be deemed to be suspended and of no effect from the Closing Date until such time as the government approval
necessary to transfer the shares of Graco China Finishing Brands has been obtained and the actual transfer of the shares of Graco China Finishing Brands to the applicable Purchaser under the applicable Non-U.S. Subsidiary Purchase Agreement has
occurred. Each Subsidiary of Purchaser Parent that executes a Non-U.S. Subsidiary Purchase Agreement shall be deemed to be a
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Purchaser for all purposes under this Agreement (including for purposes of the representations and warranties set forth in Article 5), and, if such Subsidiary is formed after the date
hereof, such Subsidiary shall nonetheless be deemed to be and shall be a Purchaser for all purposes under this Agreement as if such Subsidiary existed as of the date hereof.
9. Section 6.2(d)(iii). The Asset Purchase Agreement is hereby further
amended by deleting in its entirety the following sentence contained in Section 6.2(d)(iii) of the Asset Purchase Agreement: In addition, Graco has informed Purchaser Parent and US Purchaser that certain Employees may be aware of
information concerning the Powder Finishing Business due to the integration of portions of the Liquid Finishing Business with the Powder Finishing Business prior to the consummation of the transactions contemplated by the ITW Purchase Agreement
(which information, for the avoidance of doubt, constitutes Graco Confidential Information); in connection therewith, Purchaser Parent and US Purchaser hereby agree to cause the Liquid Finishing Business not to exploit intentionally such information
(A) for the commercial benefit of the Liquid Finishing Business or, (B) in connection with the discharge of any such Employees duties as an employee of the Liquid Finishing Business, to the commercial detriment of the Powder
Finishing Business, in each case, during such five-year period, and Graco agrees that the awareness of such information by such Employees (without any intentional exploitation of such information in violation of the foregoing terms and conditions)
shall not prevent, in any manner, the Liquid Finishing Business from competing with the Powder Finishing Business after the 18-month anniversary of the Closing.
10. Section 6.2(f). The Asset Purchase Agreement is hereby further
amended by:
(a) deleting in its entirety the heading to Section 6.2(f) and
replacing it with the following: Non-Solicitation/Hiring of Powder Finishing Business Employees;
(b) deleting in its entirety Section 6.2(f)(i) of the Asset Purchase Agreement;
(c) deleting the word, further, in the language, Purchaser Parent and US
Purchaser further agree, contained in the first sentence of Section 6.2(f)(ii) of the Asset Purchase Agreement; and
(d) re-numbering Section 6.2(f)(ii) of the Asset Purchase Agreement as
Section 6.2(f)(i), and re-numbering Section 6.2(f)(iii) of the Asset Purchase Agreement as Section 6.2(f)(ii).
11. Section 6.2(g). The Asset Purchase Agreement is hereby further
amended by deleting in its entirety Section 6.2(g) of the Asset Purchase Agreement and replacing it with the following:
(g) Covenants Not to Sue.
(i) From and after, and conditioned upon, the Closing, Graco, on behalf of itself and its
Affiliates (whether or not presently existing, and including Sellers): (A) covenants not to join, file, prosecute or maintain any suit, in law or equity,
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or take any administrative action, either directly or indirectly through a third party, against Purchasers, Purchaser Parent, US Purchaser and their respective Affiliates (whether or not
presently existing), integrators, distributors, licensees, manufacturers and customers, on the grounds that the research, development, manufacture, use, importation, exportation, distribution, offer to sell or sale, prior to the Closing Date of any
Liquid Finishing Business Products, infringes any Acquired ITW Intellectual Property that is not Business Intellectual Property; (B) covenants not to join, file, prosecute or maintain any suit, in law or equity, or take any administrative
action, either directly or indirectly through a third party, against Purchasers, Purchaser Parent, US Purchaser and their respective Affiliates (whether or not presently existing), integrators, distributors, licensees, manufacturers and customers,
on the grounds that the research, development, manufacture, use, importation, exportation, distribution, offer to sell or sale, after the Closing Date, (1) of any Liquid Finishing Business Products described in clause (a) of the
definition of Liquid Finishing Business Products anywhere in the world, infringes any Acquired ITW Intellectual Property that is not Business Intellectual Property, (2) of any Liquid Finishing Business Products described in clause
(b) of the definition of Liquid Finishing Business Products anywhere in South America, infringes any Acquired ITW Intellectual Property that is not Business Intellectual Property, or (3) of any Liquid Finishing Business Products
described in clause (c) of the definition of Liquid Finishing Business Products in the transportation and related supply chain markets, infringes any Acquired ITW Intellectual Property that is not Business Intellectual Property;
(C) covenants not to assert, directly or indirectly through a third party, against Purchasers, Purchaser Parent, US Purchaser and their respective Affiliates (whether or not presently existing) and any successors or assigns of the foregoing,
any rights in any Acquired Intellectual Property that is not Business Intellectual Property if such assertion would interfere with the freedom of Purchasers, Purchaser Parent, US Purchaser or any of their respective Affiliates (whether or not
presently existing) or any successor or assign of the foregoing, to practice in the research, development, manufacture, use, importation, export, distribution, offer to sell or sale (1) of any Liquid Finishing Business Products described in
clause (a) of the definition of Liquid Finishing Business Products anywhere in the world, (2) of any Liquid Finishing Business Products described in clause (b) of the definition of Liquid Finishing Business Products
anywhere in South America, or (3) of any Liquid Finishing Business Products described in clause (c) of the definition of Liquid Finishing Business Products in the transportation and related supply chain markets; and
(D) covenants not to seek to challenge or invalidate any of the Business Intellectual Property in a civil action or administrative proceeding. For purposes hereof, Acquired ITW Intellectual Property means any and all Intellectual
Property that was acquired by Graco and its Affiliates from ITW Parent and its Affiliates in connection with the transactions contemplated by the ITW Purchase Agreement and, immediately prior to the Closing, is an asset of Graco or an Affiliate of
Graco.
(ii) From and after, and conditioned upon, the Closing, Purchaser Parent, on behalf of
itself and its Affiliates (whether or not presently existing, and including Purchasers): (A) covenants not to join, file, prosecute or maintain any suit, in law or equity, or take any administrative action, either directly or indirectly through
a third party, against Graco, Sellers, Graco US Finishing Brands and their respective Affiliates (whether or not presently existing), integrators, distributors, licensees,
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manufacturers and customers, on the grounds that the research, development, manufacture, use, importation, exportation, distribution, offer to sell or sale of any Gema Powder Finishing Products
anywhere in the world, infringes any of the Acquired ITW Intellectual Property that is Business Intellectual Property; (B) covenants not to assert, directly or indirectly through a third party, against Graco, Sellers, Graco US Finishing Brands
and their respective Affiliates (whether or not presently existing) and any successors or assigns of the foregoing, any rights in any Acquired Intellectual Property that is Business Intellectual Property if such assertion would interfere with the
freedom of Graco, Sellers, Graco US Finishing Brands or any of their respective Affiliates (whether or not presently existing) or any successor or assign of the foregoing, to practice in the research, development, manufacture, use, importation,
export, distribution, offer to sell or sale of any Gema Powder Finishing Products; and (C) covenants not to seek to challenge or invalidate any of the Acquired ITW Intellectual Property that is not Business Intellectual Property in a civil
action or administrative proceeding.
12. Section 7.1(d). The Asset
Purchase Agreement is hereby further amended by deleting in its entirety Section 7.1(d) of the Asset Purchase Agreement and replacing it with the following:
(d) Approvals; Absence of Certain Legal Proceedings. Subject to
Section 6.1(j)(ii) in respect of the approval of any Governmental Authority that is necessary for the transfer of the shares of Graco China Finishing Brands, the parties shall have received all approvals, authorizations, and consents of
all Governmental Authorities required in connection with the consummation of the transactions contemplated by this Agreement and any waiting period under non-U.S. antitrust or competition laws applicable to the transactions contemplated hereby shall
have expired or shall have been duly terminated, and all approvals and clearances required under U.S. and non-U.S. antitrust or competition laws applicable to the transactions contemplated hereby shall have been received. No suit or other legal
proceeding shall be pending or shall have been commenced that seeks to restrict or prohibit the transactions contemplated by this Agreement.
13. Section 7.2(c). The Asset Purchase Agreement is hereby further
amended by deleting in its entirety Section 7.2(c) of the Asset Purchase Agreement and replacing it with the following:
(c) Approvals; Absence of Certain Legal Proceedings. Subject to
Section 6.1(j)(ii) in respect of the approval of any Governmental Authority that is necessary for the transfer of the shares of Graco China Finishing Brands, the parties shall have received all approvals, authorizations, and consents of
all Governmental Authorities required in connection with the consummation of the transactions contemplated by this Agreement and any waiting period under non-U.S. antitrust or competition laws applicable to the transactions contemplated by hereby
shall have expired or shall have been duly terminated, and all approvals and clearances required under U.S. and non-U.S. antitrust or competition laws applicable to the transactions contemplated hereby shall have been received. No suit or other
legal proceeding shall be pending or shall have been
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commenced that seeks to restrict or prohibit the transactions contemplated by this Agreement.
14. Section 9.1(a). The Asset Purchase Agreement is hereby further
amended by:
(a) inserting the word, or, following the semi-colon at the end of
Section 9.1(a)(vi) of the Asset Purchase Agreement;
(b) deleting in its entirety
Section 9.1(a)(vii) of the Asset Purchase Agreement; and
(c) re-numbering
Section 9.1(a)(viii) of the Asset Purchase Agreement as Section 9.1(a)(vii).
15. Section 9.1(b). The Asset Purchase Agreement is hereby further
amended by deleting in their entirety each reference to the language, Section 9.1(a)(ii), (iii), (iv), (v), (vi), (vii) or (viii), contained in Section 9.1(b) of the Asset
Purchase Agreement and replacing each such reference with the following: Section 9.1(a)(ii), (iii), (iv), (v), (vi) or (vii).
16. Section 9.10. The Asset Purchase Agreement is hereby further
amended by deleting in its entirety Section 9.10 of the Asset Purchase Agreement and replacing it with the following:
9.10 No Third-Party Rights; Interplay with Final Order.
(a) No Third-Party Rights; Effect of Non-Compliance. Except as expressly
contemplated by this Agreement, nothing in this Agreement is intended, nor may be construed, to confer upon or give any Person, other than the parties hereto and the Persons entitled to indemnification under Article 8, any rights or remedies
under or by reason of this Agreement. Notwithstanding the foregoing, Graco affirms that this Agreement, upon the approval of the FTC, shall constitute the Divestiture Agreement under and as defined in the Final Order and, as provided in the Final
Order, Gracos failure to comply with the terms of this Agreement shall constitute Gracos failure to comply with the Final Order.
(b) Incorporation of Final Order and Supremacy. The terms and requirements of the
Final Order shall govern this Agreement and the Ancillary Agreements and, to the extent they pertain to this Agreement or an Ancillary Agreement, as the case may be, or its terms and provisions, are hereby deemed incorporated by reference herein.
The parties further agree that neither this Agreement nor any Ancillary Agreement shall limit or contradict, or be construed to limit or contradict, the terms of the Final Order, it being understood that nothing in the Final Order shall be construed
to reduce any rights or benefits of the Commission-approved Acquirer (as defined in the Final Order) or to reduce any obligations of Graco or Graco US Finishing Brands under this Agreement.
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17. Elimination of Schedule 1.6(a). The Asset Purchase
Agreement is hereby further amended by deleting in its entirety Schedule 1.6(a) to the Asset Purchase Agreement.
18. Exhibit B Mutual Transition Services Agreement. The Asset Purchase Agreement is hereby
further amended by deleting in its entirety the form of Mutual Transition Services Agreement attached as Exhibit B to the Asset Purchase Agreement and replacing it with the form of Mutual Transition Services Agreement attached as Schedule I
hereto.
19. Exhibit C Cross License Agreement. The Asset Purchase Agreement is hereby
further amended by deleting in its entirety the form of Cross License Agreement attached as Exhibit C to the Asset Purchase Agreement and replacing it with the form of Cross License Agreement attached as Schedule II hereto.
20. Miscellaneous. This Amendment will be construed under and governed by the laws of the State of
Delaware without regard to the conflicts of law principles of any jurisdiction. This Amendment may be executed in any number of counterparts and delivered via facsimile or other form of electronic transmission (including pdf. transmission), each of
which will be deemed an original and all of which will constitute one agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment No. 1 to Asset
Purchase Agreement as of the date first written above.
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CARLISLE COMPANIES INCORPORATED |
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/s/ Kevin P.
Zdimal
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Name: Kevin P. Zdimal |
Its: Vice President and Chief Accounting Officer |
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CARLISLE FLUID TECHNOLOGIES, INC. |
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/s/ Kevin P.
Zdimal
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Name: Kevin P. Zdimal |
Its: Treasurer |
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GRACO INC. |
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/s/ Patrick J.
McHale
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Name: Patrick J. McHale |
Its: President and Chief Executive Officer |
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FINISHING BRANDS HOLDINGS INC. |
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/s/ James A.
Graner
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Name: James A. Graner |
Its: President |
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