EXHIBIT 2.2
AMENDMENT NO.1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1, dated as of November 5, 1999 (this
"AMENDMENT"), to the Agreement and Plan of Merger, dated as of August 23,
1999 (the "MERGER AGREEMENT"), among General Acquisition Corp. ("PARENT"), a
Nevada corporation and a direct, wholly-owned subsidiary of Tyco
International Ltd., General Sub Acquisition Corp., a California corporation
and a direct, wholly-owned subsidiary of Parent ("MERGER SUB"), and General
Surgical Innovations, Inc., a California corporation (the "COMPANY"), is
entered into among Parent, Merger Sub, the Company and Tyco Acquisition Corp.
XXIII, a Delaware corporation and a direct, wholly-owned subsidiary of Parent
("NEW MERGER SUB").
WITNESSETH:
WHEREAS, Parent, Merger Sub and the Company have previously entered
into the Merger Agreement, which contemplates that acquisition of all of the
outstanding equity interests in the Company by Parent by means of a merger of
Merger Sub with and into the Company (the "MERGER"); and
WHEREAS, the parties to the Merger Agreement desire to amend
certain terms of such agreement in the manner set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub, the Company and New Merger Sub hereby agree as
follows:
1. Merger Sub hereby assigns and transfers all of its rights and
obligations under the Merger Agreement to New Merger Sub, and the other
parties hereto hereby consent to such assignment and transfer and acknowledge
that such assignment and transfer will not be deemed to result in any breach
of any representations, warranties, covenants or agreements under the Merger
Agreement. All references in the Merger Agreement to "Merger Sub" shall now
be deemed to be references to "New Merger Sub". The parties acknowledge that
in addition to the filing of the Certificate of Merger with the Secretary of
State of the State of California contemplated by Section 1.02 of the Merger
Agreement the parties will be required to make a concurrent filing with the
Secretary of State of the State of Delaware to effectuate the Merger and that
the effects of the Merger will now be governed by both the CGCL and the
General Corporation Law of the State of Delaware.
2. The reference to "Section 7.01(j)" in Section 1.06(a) of the
Merger Agreement is hereby deleted from the Merger Agreement.
3. Section 7.01(j) of the Merger Agreement is hereby deleted in
its entirety from the Merger Agreement.
4. All references in this Amendment to capitalized terms that are
not otherwise defined shall be given the meanings ascribed to them in the
Merger Agreement.
5. Except as expressly stated in this Amendment, all of the
remaining terms of the Merger Agreement shall remain in full force and effect.
6. The terms of Article VIII of the Merger Agreement are
incorporated by reference into this Amendment.
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IN WITNESS WHEREOF, Parent, Merger Sub, the Company and New Merger
Sub have caused this Amendment to be executed as of the date first written
above by their respective officers thereunto duly authorized.
GENERAL ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Vice President
GENERAL SUB ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Vice President
GENERAL SURGICAL INNOVATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
TYCO ACQUISITION CORP. XXIII
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Vice President
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The undersigned hereby consents to Amendment No. 1, dated as of
November 5, 1999, to the Agreement and Plan of Merger, dated as of August 23,
1999, among General Acquisition Corp., General Sub Acquisition Corp., and
General Surgical Innovations, Inc., being entered into among General
Acquisition Corp., General Sub Acquisition Corp., General Surgical
Innovations, Inc. and Tyco Acquisition Corp. XXIII and the performance
thereunder of the parties thereto.
TYCO INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President and Assistant Corporate
Secretary
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