Exhibit (e)(15)
centerpulse
Implanting trust.
August 26, 2003
Xxxxx & Nephew plc
Xxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attn: Company Secretary
Xxxxx & Nephew Group plc
Xxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attn: Company Secretary
Ladies and Gentlemen:
Reference is made to that certain Combination Agreement, dated as of
March 20, 2003 (the "Agreement"), among Xxxxx & Nephew plc, public limited
company organized under the laws of England and Wales ("Xxxxx & Nephew"), Xxxxx
& Nephew Group plc, a public limited company organized under the laws of England
and Wales (formerly known as Meadowclean Limited) ("Xxxxx & Nephew Group"), and
Centerpulse AG, a corporation organized under the laws of Switzerland
("Centerpulse"). Capitalized terms used, but not otherwise defined, herein shall
have the respective meanings ascribed to such terms in the Agreement.
The purpose of this letter (this "Letter Agreement") is to set forth
our agreement and understanding as to various matters relating to the Offer.
1. The Parties agree that if (a) the Offer under Condition 5 reaches
a threshold of valid acceptances for at least 50% of the total number of the
Centerpulse Shares outstanding (including Centerpulse Shares represented by
Centerpulse ADSs and, provided the InCentive Offer has become unconditional,
Centerpulse Shares held by InCentive) as of four hours before 4:00 P.M. (Central
European Time) on August 27, 2003 (the "End Time") or if the value of the Zimmer
Offer has fallen below the value of the Offer at any point in time before such
time and (b) the Offer is not likely to become unconditional as of the End Time
due to the failure of Conditions (1), (2) or (4), Xxxxx & Nephew Group and Xxxxx
& Nephew shall file before the End Time a submission to the STOB requesting the
approval of the STOB for an extension of the offer period relating to the Offer
(the "Offer Period") until the close of business on the tenth trading day after
the End Time (or such other day that will be acceptable to the STOB) and use
their reasonable (zumutbare Massnahmen) efforts upon receipt of such approval,
to satisfy Conditions (1), (2) and (4) prior to the expiration of the extended
Offer Period.
2. Notwithstanding anything to the contrary in Section II.7 of the
Agreement, Centerpulse shall pay the Cost Reimbursement to Xxxxx & Nephew as
soon as practicable after the publication of the definitive interim result of
the Zimmer Offer, provided that Zimmer has declared the Zimmer Offer
unconditional. If the Zimmer Offer is not declared unconditional, with respect
to the payment of the Cost Reimbursement Section II.7 shall apply, except that
the failure of Xxxxx & Nephew and Xxxxx & Nephew Group to satisfy Conditions
(1), (2) and (4) prior to the End Time shall not be deemed to be a reason for
the Cost Reimbursement not to be paid by Centerpulse, and shall not be deemed to
be a reason for the Cost Reimbursement to be paid by Xxxxx & Nephew and Xxxxx &
Nephew Group under Section II.7(b).
3. This Letter Agreement shall not constitute a waiver, amendment or
modification of any other provision of the Agreement not expressly referred to
herein and shall not be construed as a waiver or consent to any further or
future action on the part of any of the parties hereto that would require a
waiver or consent of any of the other parties hereto or any rights that
Centerpulse may have relating to Xxxxx & Nephew's and Xxxxx and Nephew Group's
process of satisfying Condition (4) prior to the date hereof. Except as
expressly amended or modified herein, the provisions of the Agreement are and
shall remain in full force and effect.
4. This Letter Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more such counterparts have been signed by each of the
parties hereto and delivered to the other parties hereto. Each party hereto
confirms that any facsimile copy of such party's executed counterpart of this
Letter Agreement (or its signature page hereof) shall be deemed to be an
executed original thereof.
5. This Letter Agreement shall be governed by and construed in
accordance with the laws of Switzerland regardless of the laws that might
otherwise govern under principles of conflicts of law applicable thereto.
2
Please evidence your agreement with the foregoing by executing this
Letter Agreement in the space indicated below.
Very truly yours,
CENTERPULSE AG
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Chief Risk Officer
Accepted and agreed to as
of the first above date written:
XXXXX & NEPHEW PLC
By: /s/ X.X. X'Xxxxxxx
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Name: X.X. X'Xxxxxxx
Title: Chief Executive
By:
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Name:
Title:
XXXXX & NEPHEW GROUP PLC
By: /s/ X.X. X'Xxxxxxx
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Name: X.X. X'Xxxxxxx
Title: Chief Executive
By:
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Name:
Title:
