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Exhibit 2.2
Amendment No. 1
to
Stock and Asset Purchase Agreement
AMENDMENT No. 1, dated as of October 22, 1998 (this "Amendment"), to the
STOCK AND ASSET PURCHASE AGREEMENT, dated as of August 13, 1998 (the "Stock and
Asset Purchase Agreement"), between Pfizer Inc., a Delaware corporation
("Pfizer"), and Stryker Corporation, a Michigan corporation ("Stryker").
W I T N E S S E T H
WHEREAS, Pfizer and Stryker desire to amend the Stock and Asset Purchase
Agreement in certain respects as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and subject to and on the terms and conditions set forth, the
parties hereto agree as follows:
Section 1. Capitalized terms used in this Amendment that are not otherwise
defined herein shall have the meanings ascribed to such terms in the Stock and
Asset Purchase Agreement.
Section 2. The Stock and Asset Purchase Agreement shall be amended as
follows:
2.1 Section 2.7 shall be amended to read in its entirety as follows:
"Section 2.7 Purchase Price. (a) In consideration of the
sale and transfer of the Shares and the sale and transfer of the
Conveyed Assets, Purchaser shall pay to Pfizer, as agent for the
Seller Corporations (or to Pfizer's Affiliates as Pfizer may on
behalf of the Seller Corporations direct in the written transfer
instructions hereinafter referred to), an aggregate amount of One
Billion Six Hundred Fifty Million Dollars ($1,650,000,000.00) (the
"Aggregate Payment"), in immediately available funds, by wire
transfer in accordance with written instructions given by Pfizer to
Purchaser not less than two (2) Business Days prior to the Closing,
which consideration shall be subject to the purchase price adjustment
provided for in Section 2.8 and shall be allocated as described
below."
(b) In consideration of the sale and transfer of the Shares,
Purchaser agrees to purchase from the Stock Selling Corporations the
Shares for an aggregate purchase price of Five Hundred Twenty-Four
Million One Hundred Eighty Thousand Dollars ($524,180,000.00),
allocated among the Shares as described in Schedule 2.9 (the "Share
Purchase Price").
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(c) In consideration of the sale and transfer of the Conveyed
Assets, the Purchaser agrees to purchase from each Asset Selling
Corporation the Conveyed Assets owned by such Asset Selling
Corporation for an aggregate purchase price of One Billion One
Hundred Twenty-Five Million Eight Hundred Twenty Thousand Dollars
($1,125,820,000.00), allocated among the Asset Selling Corporations
as described in Section 2.9 (the "Asset Purchase Price" and, together
with the Share Purchase Price, the "Aggregate Purchase Price")."
2.2 The last sentence of Section 2.9 shall be deleted and replaced
by the following:
"If after all other adjustments to the Allocation are made, the
Allocation with respect to any Asset Selling Corporation or Conveyed
Subsidiary (or Subsidiary), when expressed in the relevant local
currency at the rate of exchange used to determine Final Working
Capital, is less than the local currency net book value, determined
in accordance with GAAP, of the Conveyed Assets of such Asset Selling
Corporation or the assets of such Conveyed Subsidiary (or Subsidiary)
as of the Closing Date, then the Allocation with respect to such
Asset Selling Corporation or Conveyed Subsidiary (or Subsidiary)
shall be adjusted so that it is equal to such local currency net book
value converted at the rate of exchange used to determine Final
Working Capital and a corresponding adjustment will be made, as to
the first $3,000,000, to the Allocation with respect to Howmedica
Inc., and as to any balance in excess of the first $3,000,000, to the
Allocation with respect to Howmedica GmbH."
2.3 Schedule 2.9 shall be amended and replaced in its entirety by
the Schedule 2.9 attached hereto as Annex A.
2.4 Section 4.2(c) shall be amended to read in its entirety as
follows:
"(c) Purchaser shall have received funds pursuant to the credit
facilities provided for in the commitment letter, dated October 22,
1998, between Purchaser, on the one hand, and Xxxxxxx Xxxxx Credit
Partners L.P., Bank of America National Trust and Savings Association
and Nationsbanc Xxxxxxxxxx Securities LLC (the "Arrangers") on the
other hand, a copy of which has been furnished to Pfizer (the
"Financing Commitment Letter"). The parties agree that Purchaser's
ability to rely on the condition set forth in this Section 4.2(c) is
subject to the provisions of Section 7.3(d) hereof."
2.5 Section 7.3(d) shall be amended to read in its entirety as
follows:
"(d) Purchaser shall use its best efforts to cause the
conditions to funding under the Financing Commitment Letter to be
satisfied and to borrow the funds provided thereunder.
Notwithstanding the foregoing, and subject to the following
provisions of this Section 7.3(d), Purchaser shall not be required to
borrow funds under the Financing Commitment Letter if the Arrangers
notify
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Purchaser in writing (the "Arrangers' Notice") that pursuant to
the Financing Commitment Letter, they have determined that changes in
the tranche amounts or interest rate margin are necessary and such
changes cause the weighted average Applicable Eurodollar Rate Margin
determined as set forth in the Financing Commitment Letter on the
credit facilities (including the refinancing of the Japanese Yen
denominated indebtedness in the amount of approximately $75 million
provided for therein) to exceed 3.05 per cent per annum. Purchaser
will keep Pfizer informed of the status of discussions regarding
pricing of the loans from and after the date hereof and will notify
Pfizer of its receipt of any Arrangers' Notice within 24 hours and
will provide Pfizer with a copy thereof and the calculation of the
weighted average Applicable Eurodollar Rate Margin and a
determination of the amount thereof that exceeds 3.05 per cent per
annum (such amount in excess of 3.05 per cent being referred to as
the "Maximum Excess Margin"). In such event, Pfizer shall have the
right (but not the obligation), by notice to Purchaser within 2
Business Days of Pfizer's receipt of any Arrangers' Notice, to elect
to bear and reimburse Purchaser on a quarterly basis an amount equal
to the portion of the weighted average Applicable Eurodollar Rate
Margin which accrued on the credit facilities during that quarter
that exceeds 3.05 per cent per annum, but in no event shall Pfizer be
responsible for more than the Maximum Excess Margin. If Pfizer makes
such election, Purchaser shall be required to borrow the funds under
the Financing Commitment Letter unless the Maximum Excess Margin
exceeds .25 per cent, in which case Purchaser may elect not to borrow
the funds regardless of whether Pfizer has made the election referred
to above. Within 15 days of the end of each quarter, Purchaser will
provide Pfizer with a written statement of the amounts outstanding
under each tranche of the credit facilities during the quarter and
the Applicable Eurodollar Rate Margins together with a calculation of
the weighted average Applicable Eurodollar Rate Margin accrued during
such quarter and the amount payable by Pfizer under this Section
7.3(d). Pfizer shall pay such amount to Purchaser within 5 Business
Days of receipt of such statement from the Purchaser. Pfizer shall
have no liability to reimburse Purchaser for any additional interest
which may result from any changes in or waivers of the terms of
payment under the credit facilities provided pursuant to the
Financing Commitment Letter after Pfizer's election under this
Section 7.3(d) has been made, whether such additional interest
results as a consequence of changes in interest rates or spreads,
refinancing, default, changes in the amounts and timing of payments
or otherwise (whether any such change is permitted by the original
terms of the credit agreement or results from subsequent
modifications agreed to by the lenders and Purchaser)."
Section 3. References. All references to "this Agreement" in
the Stock and Asset Purchase Agreement shall mean the Stock and Asset Purchase
Agreement as amended hereby.
Section 4. Governing Law. This Amendment shall be governed by the
laws of the State of New York, its rules of conflict of laws notwithstanding.
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Section 5. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same agreement.
Section 6. No Other Amendments. Except as expressly amended hereby,
the terms and conditions of the Stock and Asset Purchase Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed or caused this Amendment
to be executed as of the date first written above.
PFIZER INC.
By:
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Name:
Title:
STRYKER CORPORATION
By:
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Name:
Title:
