EXECUTION COPY
AMENDMENT dated as of December 31, 1997
(this "Amendment"), between XXXXXXX-XXXXX SQUIBB COMPANY, a
Delaware corporation ("Seller"), and CONMED CORPORATION, a New
York corporation ("Buyer"), to the Stock and Asset Purchase
Agreement, dated as of November 26, 1997 (the "Stock and Asset
Purchase Agreement"), between Seller and Buyer.
WHEREAS Seller and Buyer have entered into the Stock and Asset Purchase
Agreement, a Letter Agreement dated as of December 31, 1997 (the "Disclosure
Schedule Letter Agreement"), amending the Disclosure Schedule to the Stock and
Asset Purchase Agreement, and a Letter Agreement dated as of December 31, 1997
(the "Tax Letter Agreement"), with respect to certain tax issues; and
WHEREAS Seller and Buyer mutually desire to make certain other
amendments to the Stock and Asset Purchase Agreement.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, Seller and Buyer agree as follows:
Section 1. Allocation of Purchase Price. (a) Schedule 1.1(c) to the
Disclosure Schedule to the Stock and Asset Purchase Agreement is hereby amended
in its entirety to read as set forth on Exhibit A hereto.
(b) Section 1.1(c) of the Stock and Asset Purchase Agreement is hereby
amended by deleting the words "or Section 2.4".
Section 2. Closing; Purchase Price Adjustment. (a) The third sentence
of Section 2.1 of the Stock and Asset Purchase Agreement is hereby amended to
read in its entirety as set forth on Exhibit B hereto.
(b) Section 2.2(b) of the Stock and Asset Purchase Agreement is hereby
amended to read in its entirety as set forth on Exhibit C hereto.
(c) The third sentence of Section 2.3(a) of the Stock and Asset
Purchase Agreement is hereby amended to read in its entirety as set forth on
Exhibit D hereto.
(d) Section 2.3(d) of the Stock and Asset Purchase Agreement is hereby
amended to read in its entirety as set forth on Exhibit E hereto.
(e) The words "Closing Date Amount" in the second sentence of Section
4.3(a) are hereby deleted and replaced in their entirety with the words
"consideration set forth in Sections 2.1(a) and (b)."
Section 3. Covenant Not to Compete. Section 5.5(a) of the Stock and
Asset Purchase Agreement is hereby amended to read in its entirety as set forth
on Exhibit F hereto.
Section 4. Employee Matters. (a) Section 9.1 of the Stock and Asset
Purchase Agreement is hereby amended to read in its entirety as set forth on
Exhibit G hereto.
(b) Article IX of the Stock and Asset Purchase Agreement is hereby
amended by adding a new Section 9.15 to such Article IX which shall read as set
forth on Exhibit H hereto, and the Disclosure Schedule to the Stock and Asset
Purchase Agreement is hereby amended by adding a new Schedule 9.15 which shall
read as set forth on the Schedule 9.15 attached to Exhibit H hereto.
Section 5. Entire Agreement. Section 15.8 of the Stock and Asset
Purchase Agreement is hereby amended to read in its entirety as set forth on
Exhibit I hereto.
Section 6. Representations and Warranties. Each party hereto represents
and warrants to the other party that this Amendment and the Stock and Asset
Purchase Agreement as amended hereby have been duly authorized, executed and
delivered by such party and constitute such party's legal, valid and binding
obligation, enforceable against such party in accordance with its terms.
Section 7. Interpretation; Definitions. The headings contained in this
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment. All Exhibits annexed hereto or
referred to herein are hereby incorporated in and made a part of this Amendment
as if set forth in full herein. Any capitalized terms used but not otherwise
defined herein shall have the meaning as defined in the Stock and Asset Purchase
Agreement.
Section 8. Counterparts. This 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 and delivered to the other party.
Section 9. Stock and Asset Purchase Agreement. Except as specifically
amended hereby, the Stock and Asset Purchase Agreement shall continue in full
force and effect in accordance with the provisions thereof as in existence on
the date hereof. After the date hereof, any reference to the Stock and Asset
Purchase Agreement in such Stock and Asset Purchase Agreement, in any
Transaction Document and in any other document shall mean the Stock and Asset
Purchase Agreement as amended hereby and as amended by the Disclosure Schedule
Letter Agreement and the Tax Letter Agreement.
Section 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
[THIS SPACE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXXXXX-XXXXX SQUIBB COMPANY,
by
------------------------
Name:
Title:
CONMED CORPORATION,
by
-------------------------
Name:
Title:
EXHIBIT A
Schedule 1.1(c)
Allocation of Purchase Price
The amount of the Purchase Price allocated to the Non-U.S. Inventory
sold by each Seller Entity pursuant to Section 1.1(c) shall equal the transfer
price of such Non-U.S. Inventory determined under Section 2.2(a) of the
Transition and Distribution Services Agreement and Section 2.2(a) of the
Distribution Agreement, after giving effect to any adjustments to the Non-U.S.
Inventory Purchase Price under Section 2.2(b) of the Transition Distribution and
Services Agreement.
The amount of the Purchase Price allocated to the sale by Xxxxxxx-Xxxxx
Xxxxxx XX of the goodwill associated with its business of selling Linvatec
products within Japan is $17,245,000.
The amount of the Purchase Price allocated to the sale by Xxxxxx of
Canada Limited of the goodwill associated with its business of selling Linvatec
products within Canada is $9,004,000.
The amount of the Purchase Price allocated to the sale by Xxxxxx
Limited of the goodwill associated with its business of selling Linvatec
products within England is $6,559,000.
EXHIBIT B
At the Closing, (a) Buyer shall deliver to Seller, by wire transfer to
a bank account designated in writing by Seller at least two business days prior
to the Closing Date, immediately available funds in an amount equal to the sum
of (i) the Cash Purchase Price and (ii) the Closing Tax Adjustment Amount plus
or minus (iii) an estimate, prepared by Seller, containing sufficient detail to
describe the basis therefore and the calculation thereof and delivered to Buyer
at least three business days prior to the Closing Date, of any adjustment to the
Cash Purchase Price under Section 2.2 (the Cash Purchase Price plus or minus
such estimate of any adjustment under Section 2.2 being hereinafter called the
"Working Capital Closing Date Amount") plus or minus (iv) the amount by which an
estimate, prepared by Seller and delivered to Buyer at least one business day
prior to the Closing Date, of the Non-U.S. Inventory Purchase Price (such
estimate, the "Estimated Non-U.S. Inventory Purchase Price") is greater than, or
less than, as the case may be, $11,027,000; (b) Buyer shall execute and deliver
to Seller the Warrant; (c) Seller shall deliver or cause to be delivered to
Buyer certificates representing the Shares, duly endorsed in blank or
accompanied by stock powers duly endorsed in blank in proper form for transfer,
with appropriate transfer stamps, if any, affixed; and (d) Seller (acting as
agent for the Seller Entities) shall deliver or cause to be delivered to Buyer
such appropriately executed instruments of sale, assignment, transfer and
conveyance in form and substance reasonably satisfactory to Buyer and its
counsel evidencing and effecting the sale, assignment, and transfer to Buyer of
the Other Assets (it being understood that such instruments shall not require
the Seller Entities to make any additional representations, warranties or
covenants, expressed or implied, not contained in this Agreement).
EXHIBIT C
The Cash Purchase Price shall be increased by the amount by which Closing
Working Capital exceeds $38,571,000 (the "WC Amount"), and the Cash Purchase
Price shall be decreased by the amount by which Closing Working Capital is less
than the WC Amount (the Cash Purchase Price as so increased or decreased shall
hereinafter be referred to as the "Adjusted Cash Purchase Price"). If the
Working Capital Closing Date Amount is less than the Adjusted Cash Purchase
Price, Buyer shall, and if the Working Capital Closing Date Amount is more than
the Adjusted Cash Purchase Price, Seller shall, within 10 business days after
the Statement becomes final and binding on the parties, make payment by wire
transfer in immediately available funds of the amount of such difference,
together with interest thereon from and including the Closing Date to but
excluding the actual date of payment at the Prime Rate.
EXHIBIT D
Within 60 calendar days after the Closing Date, Seller shall prepare and deliver
to Buyer a statement (the "Non-U.S. Inventory Statement") setting forth (i) the
actual amount of the Non-U.S. Inventory Purchase Price with a breakdown of such
amount for Zimmer Pty. Ltd. and Zimmer New Zealand Limited by product category
(i.e., Hall(R) Surgical large bone products versus all other products) on the
Closing Date and (ii) a calculation of the transfer prices under Section 2.2 of
the Transition Distribution and Services Agreement or Section 2.2 of the
Distribution Agreement, as applicable, for the products represented by the
Non-U.S. Inventory Purchase Price.
EXHIBIT E
(d) If the Estimated Non-U.S. Inventory Purchase Price exceeds the
Non-U.S. Inventory Purchase Price, Seller shall, and if the Estimated Non-U.S.
Inventory Purchase Price is less than the Non-U.S. Inventory Purchase Price,
Buyer shall, within 10 business days after the Non-U.S. Inventory Statement
becomes final and binding on the parties, make payment by wire transfer in
immediately available funds the amount of such difference, together with
interest thereon from and including the Closing Date to but excluding the actual
date of payment at the Prime Rate.
EXHIBIT F
Section 5.5 Covenant Not To Compete. (a) Seller, for and on behalf of
itself and its subsidiaries, agrees that, for a period of three years after the
Closing Date (or, with respect to the Company's and the Subsidiary's Hall(R)
Surgical large bone products being distributed under the Distribution Agreement,
the longer of (i) three years after the Closing Date and (ii) two years after
any termination of the Distribution Agreement by either party thereto, but in no
event longer than five years after the Closing Date), they shall not own,
manage, operate, control or otherwise engage in any Competitive Business;
provided, however, that nothing herein shall be construed to prevent Seller or
any of its Affiliates from any of the following: (A) acquiring any Person
engaged in any Competitive Business (other than any Person primarily engaged in
a Competitive Business) or any interest in any such Person and thereafter
owning, managing, operating or controlling such Person or otherwise engaging in
any business engaged in by such Person, (B) owning, managing, operating or
controlling Zimmer or any of its subsidiaries or otherwise engaging in any
business currently engaged in by Zimmer or any of its subsidiaries, other than
the International Business and the Domestic Hall(R) Surgical Business, (C)
engaging in transactions pursuant to the Manufacturing Agreement, the Transition
Distribution and Services Agreement or the Distribution Agreement, (D) owning up
to five percent (5%) of the voting equity securities or any non-voting equity or
debt securities of any Person whose securities are publicly traded on a national
securities exchange or in the over-the-counter market (it being understood,
however, that this Agreement shall not prohibit or in any way be deemed to be
inconsistent with the ownership or exercise by Seller of the Warrant or the
Warrant Shares (as defined in the Warrant)) or (E) manufacturing or selling the
current MicroMill(R) branded products (capital equipment and related
disposables), upgrades and improvements of MicroMill(R) branded products and any
acetabular reamers. Notwithstanding anything to the contrary contained herein,
(i) to the extent that the Company discontinues manufacturing and selling any
product being distributed under the Distribution Agreement that otherwise would
be restricted hereunder, Seller and its subsidiaries shall no longer be
restricted in any manner under this Agreement with respect to such product and
(ii) to the extent that Seller and its subsidiaries are restricted under this
Section 5.5(a) from engaging in any Competitive Business with respect to the
Company's and the Subsidiary's Hall(R) Surgical large bone products at any time
after the third anniversary of the Closing Date, Seller and its subsidiaries
shall only be so restricted from engaging in any such Competitive Business in
the geographic areas in which Zimmer or any of its Affiliates are then
distributing the Company's or the Subsidiary's Hall(R)
surgical large bone products under the Distribution Agreement and shall not be
restricted or in any way prohibited from engaging in any such Competitive
Business in any other geographic areas after such third anniversary.
EXHIBIT G
Section 9.1 Employee Matters. The Company and the Subsidiary shall be
responsible for all employee benefits-related claims of the following individual
and each of the following groups of current or former employees of the Company,
or the Subsidiary: Xxxx Xxxxxxxx, active employees, employees on leave of
absence and all current or former employees on short-term disability
(collectively, the "Continued Employees"), except as otherwise provided in this
Article.
EXHIBIT H
Section 9.15 Long-Term Disability. For each calendar year ending after
the Closing Date, Buyer shall pay to Seller an amount equal to the sum of the
LTD Liability Amounts for each of the individuals listed on Schedule 9.15 (each
an "LTD Recipient") with respect to such calendar year. Such reimbursement shall
be made within 10 business days after Buyer's receipt of an invoice from Seller
setting forth such LTD Liability Amounts (including a reasonably detailed
calculation of such amounts) by wire transfer of immediately available funds to
an account designated in writing by Seller to Buyer. The "LTD Liability Amount"
for each LTD Recipient for any calendar year shall be equal to the sum of (i)
the total long-term disability payments made by Seller to or in respect of such
individual for such calendar year under the Xxxxxxx-Xxxxx Squibb Company Long
Term Disability Income Plan and the Xxxxxxx-Xxxxx Squibb Company Long Term
Disability Income Plan for Highly Compensated Employees, in each case as such
plan is in effect on the Closing Date, and (ii) an amount equal to 40% of the
amount calculated in the preceding subsection (i).
Schedule 9.15
Employee Social Security No.
Xxxxxxxx Xxxx ###-##-####
Xxxxxx Xxxxx ###-##-####
Xxxxxxx XxXxxx ###-##-####
Xxxxx Xxxxxxx ###-##-####
Xxxx Xxxxxxx ###-##-####
Xxxxxx Xxxxxx ###-##-####
Xxxxx Barbutt ###-##-####
Xxxxxxx Xxxxxxx ###-##-####
Xxxxx Xxxxxxxx ###-##-####
Xxxxxxx Xxxxxxxxx ###-##-####
Xxxx Nmigues ###-##-####
Xxxxxx Xxxxxxx ###-##-####
EXHIBIT I
Section 15.8 Entire Agreement. This Agreement, the other Transaction
Documents, the Confidentiality Agreement, the Letter Agreement dated as of
December 31, 1997 (the "Disclosure Schedule Letter Agreement"), between Seller
and Buyer amending the Disclosure Schedule to this Agreement and the Letter
Agreement dated as of December 31, 1997 (the "Tax Letter Agreement"), between
Seller and Buyer with respect to certain tax issues contain the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter. Neither party shall be liable or bound to any other party in any
manner by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein, in the other Transaction
Documents in the Confidentiality Agreement, in the Disclosure Schedule Letter
Agreement and in the Tax Letter Agreement.
