Exhibit 2.2
Schering-Plough Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
June 30, 1997
Mallinckrodt Inc.
000 XxXxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
Re: Amendment No. 1 to the Stock Purchase Agreement
dated as of May 19, 1997 among Mallinckrodt Inc.,
Mallinckrodt Veterinary, Inc., Mallinckrodt
Veterinary International, Inc. and Schering-Plough
Corporation, as the same may be amended from
time to time (the "Stock Purchase Agreement")
--------------------------------------------------
Dear Sirs:
This letter (this "Amendment") will confirm our agreement with
respect to certain amendments to the Stock Purchase Agreement and is
being entered into immediately prior to the Closing thereunder. All
capitalized terms used herein without definition shall have the
meanings ascribed to them in the Stock Purchase Agreement.
Notwithstanding anything herein, in the Stock Purchase Agreement
or in any Subsidiary Agreement to the contrary, the parties hereto
hereby agree as follows:
1. Veterinary Subsidiaries
-----------------------
(a) Exhibit A to the Stock Purchase Agreement ("Exhibit
A") is hereby amended to delete the entry thereon for Coopers Animal
Health (Holdings) Limited, a company organized under the laws of
England and designated in the "Subsidiary" column of Exhibit A as
#34. Accordingly, such company is not a Veterinary Subsidiary.
(b) With respect to Mallinckrodt Veterinaria S.A., a
company organized under the laws of Spain and designated in the
"Subsidiary" column of Exhibit A as #30, Exhibit A is hereby amended
to provide that MVII owns 99.99% of the Shares thereof and MVI owns
.01% of the Shares thereof.
2. Buyer Designee. The Buyer hereby designates MVI
--------------
Acquisition Co., a Delaware corporation, as its designated affiliate
for the purchase of the Shares of New MVI and of Mallinckrodt
Veterinary Asia, Inc., upon the terms and subject to the conditions
set forth in the Stock Purchase Agreement.
3. Use of Names. Section 5.6 of the Stock Purchase Agreement
------------
is hereby amended by replacing the parenthetical at the end of such
Section to read as follows: "(with the exception of packaging
materials on finished product and advertising or promotional
materials printed prior to the Closing and any such materials printed
within one hundred eighty (180) days after the Closing in the
ordinary course of business for which, in each such case, such period
of permitted use shall extend up to the applicable product expiration
date)." In addition, with respect to any Deferred Subsidiary (as
defined in Section 5 hereof), all references in Section 5.6 of the
Stock Purchase Agreement to the "Closing" or the "Closing Date" shall
be deemed instead to refer to the applicable Deferred Closing Date
(as defined in Section 5(b) hereof).
4. Schedule 2.2. Section 2.2 to the Stock Purchase Agreement
------------
is hereby amended in its entirety to read as set forth in Annex A
hereto.
5. Deferred Closings.
-----------------
(a) The parties hereto acknowledge and agree that, as of
the date hereof, the Shares of each Veterinary Subsidiary listed on
Annex B hereto (each a "Deferred Subsidiary") cannot be transferred,
directly or indirectly, to the Schering-Plough affiliate or
affiliates that are parties to the applicable Subsidiary Agreement
with respect to such Deferred Subsidiary (or the applicable
Subsidiary Agreement with respect to a parent of such Deferred
Subsidiary) because certain governmental approvals have not yet been
obtained. The Sellers and the Buyer desire to proceed with the
Closing and, accordingly, the Sellers and the Buyer agree that at the
Closing the Estimated Adjusted Purchase Price shall be reduced by an
amount equal to the amount set forth beside each Deferred
Subsidiary's name, except for Thailand, on Annex B hereto (each a
"Deferred Amount"), which amount for the avoidance of doubt is One
Million Eight Hundred Fifty-Seven Thousand Dollars ($1,857,000). In
the event that the Deferred Amount with respect to a Deferred
Subsidiary is not required to be paid to Sellers as provided herein,
the Working Capital Adjustment, if theretofore calculated, shall be
recalculated to reflect such circumstance. The parties hereto shall
cooperate in making all filings and taking all action necessary to
enable all Shares of each Deferred Subsidiary to be transferred to
the Buyer at the earliest possible date after the Closing Date.
(b) With respect to each Deferred Subsidiary, on the fifth
business day following the receipt of all necessary governmental
approvals for the sale of the Shares of such Deferred Subsidiary to
the Buyer (the "Deferred Closing Date"), (i) the Buyer shall pay the
Deferred Amount to the Sellers and purchase from the Sellers all the
Shares of such Deferred Subsidiary and (ii) the Sellers shall deliver
to the Buyer (x) certificates representing such Shares, duly endorsed
in blank or with appropriate stock powers, or the Sellers shall have
taken such other actions as may be necessary under applicable law and
the applicable Subsidiary Agreement to transfer ownership of such
Shares to the Buyer, free and clear of any pledges, security
interests, liens, encumbrances or adverse claims and (y) the
resignation of all directors of such Deferred Subsidiary (except for
any resignation(s) the Buyer specifically instructs the Sellers not
to obtain) and any documents of Sellers or their affiliates necessary
to elect the Buyer's designees as directors (each such payment and
delivery a "Deferred Closing").
(c) Sellers shall cause each Deferred Subsidiary to
conduct the business of such Deferred Subsidiary strictly in
accordance with the instructions of the Buyer to the fullest extent
permitted by law in the relevant jurisdiction; it is understood that
any such actions taken by the Sellers with respect to a Deferred
Subsidiary shall be taken for the benefit of the Buyer. Subject to
the provisions of the immediately preceding sentence, with respect to
each Deferred Subsidiary, the Buyer and the Sellers shall remain
obligated under Article V of the Stock Purchase Agreement until their
respective obligations under this Amendment and the Subsidiary
Agreement with respect to such Deferred Subsidiary have been fully
completed. Without limiting the generality of the foregoing, the
Sellers shall cause each Deferred Subsidiary not to pay any dividends
or to issue, repurchase or redeem any shares of its capital stock or
to make any other cash or non-cash distributions to the Sellers or
any of their affiliates. In taking any actions required by the
provisions of this Section 5 (and, in particular, this subsection
(c)), the Buyer agrees that the Sellers will not be deemed to be in
violation of the requirements and restrictions set forth in Section
10.9 of the Stock Purchase Agreement.
(d) The Sellers shall report to Buyer on a monthly basis
with respect to each Deferred Subsidiary. If the Shares of any
Deferred Subsidiary cannot be legally transferred to the Buyer or any
affiliate thereof within six months after the date of this Amendment,
the Buyer and the Sellers shall use their reasonable best efforts to
negotiate an equitable alternative to such transfer that shall afford
to the Buyer and the Sellers, respectively, the economic benefits
that they had anticipated with respect to such transfer. With
respect to Colombia, in addition to the foregoing and in the event
that, due to the failure of the appropriate governmental authority to
approve the transfer of the animal health operations resident in
Colombia ("Colombian Business") by December 31, 1997 or the
affirmative disapproval by the appropriate governmental authority of
such transfer before December 31, 1997 (either date referred to
hereunder as the "Decision Date"), the Buyer will not be able to
purchase the Colombian Business, it is understood that the Buyer will
pay to the Sellers an amount equal to the operating cash flow with
respect to the Colombian Business (as calculated in accordance with
the historical accounting policies and practices of the Sellers) for
the period beginning on July 1, 1997 and ending on the Decision Date,
provided that, in no event shall the Buyer be responsible to pay to
the Sellers pursuant to this sentence an amount in excess of the
lesser of One Hundred Forty Thousand Dollars ($140,000) per month or
Eight Hundred Thousand Dollars ($800,000) in the aggregate.
6. Reorganization.
--------------
(a) The parties acknowledge and agree that nothing in the
Assignment and Assumption Agreement, dated as of May 19, 1997 (the
"MVI Assignment"), between MVI and New MVI with respect to the
Reorganization, or any other instrument of assignment, assumption,
conveyance (including, without limitation, deeds) or other document
relating to the Reorganization (collectively with the MVI Assignment,
the "Reorganization Agreements"), amends or otherwise modifies or
limits any of the provisions of (i) the Assumption Agreement, dated
as of June 29, 1997, among the Sellers, New MVI and the Buyer with
respect to the Excluded Liabilities or (ii) the Stock Purchase
Agreement (including, without limitation, the Buyer's rights under
Article 8 thereof). The Sellers represent and warrant to the Buyer
that the Sellers have delivered to the Buyer a true and correct copy
of or have given the Buyer access to all of the Reorganization
Agreements, including any and all amendments thereto.
(b) Without limiting Section 6(a) hereof, and
notwithstanding anything in the Reorganization Agreements to the
contrary, (i) the Sellers, jointly and severally, shall be solely
responsible for all obligations and liabilities arising under each
agreement or other instrument assigned to New MVI in connection with
the Reorganization with respect to all periods prior to the Closing,
except for any such liability which is taken into account in the
Working Capital Adjustment, and (ii) neither the Buyer, New MVI, nor
any other affiliate of the Buyer shall have any obligations or
liabilities to the Sellers or to any other Indemnified Party (as
defined in the MVI Assignment) pursuant to Section 4 of the MVI
Assignment. The parties acknowledge and agree that all obligations
and liabilities referred to in clause (i) of the preceding sentence
are deemed to arise out of the Reorganization for purposes of Section
8.1.1(v) of the Stock Purchase Agreement.
7. Waiver of Closing Condition by the Buyer. The Buyer hereby
----------------------------------------
waives the condition set forth in Section 6.1.9 of the Stock Purchase
Agreement with respect to the contracts listed as items 2 through 7
on Schedule 6.1.9.
8. Certain Indemnities. Section 8.1.1(x) of the Stock
-------------------
Purchase Agreement is hereby amended to read in its entirety as
follows: "(A) the transfer or failure to transfer to the Buyer or
its designee any or all nominal and qualifying shares of Mallinckrodt
Vet, S.A. de C.V., a Veterinary Subsidiary organized under the laws
of Mexico, and/or any dividends, distributions or other payments
required to be made in connection therewith, (B) the failure to
transfer to the Buyer or its designee all certificates representing
the Shares of any Veterinary Subsidiary or (c) the failure to deliver
to the Buyer or its designee all resignations (effective as of the
Closing) of directors of the Veterinary Subsidiaries from their
positions as directors (except for any resignation(s) the Buyer
specifically instructs the Sellers not to obtain)." Notwithstanding
the foregoing, in the case of each Deferred Subsidiary, the foregoing
clauses (B) and (c) shall take effect from the Deferred Closing Date
with respect to such Deferred Subsidiary.
9. Miscellaneous. Except as set forth herein, all other
-------------
provisions of the Stock Purchase Agreement remain unaffected and in
full force and effect. This letter may be executed in several
counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same
agreement.
10. Time of Closing. Except for the Deferred Closings, the
---------------
Closing shall be deemed to occur as of the close of business in each
relevant jurisdiction on June 30, 1997; except for (i) Australia,
which shall be deemed to close as of the opening of business on July
1, 1997 and (ii) Hong Kong, which shall be deemed to close as of the
opening of business on July 3, 1997.
If the foregoing is in accordance with our agreement, please so
indicate by signing below.
Very truly yours,
SCHERING-PLOUGH CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Acknowledged and Agreed:
MALLINCKRODT INC.
By: /s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President, Strategic Management
MALLINCKRODT VETERINARY, INC.
By: /s/ C. Xxxxxxx Xxxxxx
----------------------
Name: C. Xxxxxxx Xxxxxx
Title: Vice President
MALLINCKRODT VETERINARY
INTERNATIONAL, INC.
By: /s/ C. Xxxxxxx Xxxxxx
---------------------
Name: C. Xxxxxxx Xxxxxx
Title: Vice President
The undersigned is executing this Amendment for purposes of
Section 5 hereof:
MALLINCKRODT VETERINARY
HOLDINGS, INC.
By: /s/ C. Xxxxxxx Xxxxxx
----------------------
Name: C. Xxxxxxx Xxxxxx
Title: Vice President
List of Annexes
to
Amendment No. 1 to the
Stock Purchase Agreement
Annex A Revised Schedule of Purchase Price Allocation
Annex B Deferred Subsidiaries
The list set forth above briefly identifies the contents of all
Annexes to Amendment No. 1, dated June 30, 1997, to the Stock
Purchase Agreement, among Mallinckrodt Inc., Mallinckrodt Veterinary,
Inc., Mallinckrodt Veterinary International, Inc. and Schering-Plough
Corporation, which amendment was also executed by Mallinckrodt
Veterinary Holdings, Inc. (the "Amendment"). All of the Annexes
listed above are omitted from the Amendment filed as Exhibit 2.2 to
the foregoing Current Report on Form 8-K, and Mallinckrodt Inc.
agrees to furnish supplementally a copy of any of the omitted Annexes
to the Securities and Exchange Commission upon request.
