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EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT OF SALE AND PLAN OF MERGER
This First Amendment to Agreement of Sale and Plan of Merger dated as of
October 31, 1996, (the "First Amendment") is entered into by and among AHP
Subsidiary Holding Corporation, a Delaware corporation, American Home Products
Corporation, a Delaware corporation, International Home Foods, Inc. (formerly
known as American Home Food Products, Inc.), a Delaware corporation, AHFP
Holding Corporation, a Delaware corporation, and AHFP Acquisition Corporation,
a Delaware corporation.
W I T N E S S E T H:
WHEREAS, the parties hereto have previously entered into that certain
Agreement of Sale and Plan of Merger dated September 5, 1996 (the "Agreement");
WHEREAS, pursuant to Section 2.1(a) of the Agreement, AHFP has effected
a 1,275,000 for one forward split of the AHFP Shares resulting in 1,275,000,000
AHFP Shares being issued and outstanding;
WHEREAS, the parties have determined that the amount of Merger Equity
will be $264,000,000; and
WHEREAS, the parties hereto desire to amend the Agreement as provided in
this First Amendment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this First Amendment and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Amendments to Sections 2.7 and 2.8 of the Agreement. Sections
2.7 and 2.8 of the Agreement are hereby amended and restated as follows:
"2.7 MERGER CONSIDERATION; CONVERSION AND CANCELLATION OF
SECURITIES. At the Effective Time, by virtue of the Merger and without
any action on the part of AHFP, Merger Sub or any other party, the
following shall occur:
(a) Shares of common stock, par value $0.01 per share
of Merger Sub (the "Merger Sub Common Stock") issued and outstanding
immediately prior to the Effective Time shall by virtue of the Merger
and without any action on the part of the holder thereof,
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be converted into an aggregate of 264,000,000 shares of common stock of
the Surviving Corporation (the "New AHFP Shares"); and
(b) With respect to all AHFP Shares issued and
outstanding immediately prior to the Effective Time, an aggregate amount
of 264,000,000 shares shall, by virtue of the Merger and without any
action on the part of Holdings as the holder thereof, be converted into
the right to receive in cash from Buyer at the Effective Time the Merger
Equity and to the extent not so converted pursuant to the foregoing the
remaining 1,011,000,000 shares of the AHFP Shares issued and outstanding
immediately prior to the Effective Time shall remain outstanding after
the Merger (the "Old AHFP Shares").
2.8 REDEMPTION OF OLD AHFP SHARES. At the Closing, the
Surviving Corporation shall cause the financing contemplated herein to
be funded by the lenders thereof in such amount as may be necessary,
when added to the amount of the Merger Equity, to equal the amount of
$1,275,000,000 minus the product of 25% times the Merger Equity (the
"Purchase Price"). It is acknowledged that the total amount to be
received in cash by Sellers at Closing in respect of the transactions
contemplated herein shall in no event be less than $1,202,000,000. At
the Closing the Surviving Corporation shall redeem 945,000,000 shares of
the Old AHFP Shares at an aggregate redemption amount equal to the
Purchase Price minus the sum of the amount of the Merger Equity and the
amount, if any, of the XXX Asset Purchase Price and the AHF Share
Purchase Price paid at the Closing pursuant to Section 3.2(c) (the
"Redemption Price")."
2. Amendments to Section 3.6(9). Section 3.6(a) is hereby amended
and restated to read as follows:
" 3.6 CLOSING STATEMENT. (a) As promptly as practicable, but no
later than 90 days after the Closing Date, Sellers will cause to be
prepared and delivered to Buyer two statements (the "Closing
Statements"), one such statement (the "Closing Date Statement") setting
forth the value of the Net Assets as of the close of business on the day
immediately prior to the Closing Date (the "Closing Net Asset Value")
and the other such statement (the "Average Value Statement") setting
forth the average month end value of the Net Assets for the 12 months
ended immediately prior to the Closing Date (the "Average Net Asset
Value"). The Closing Statement shall include line items and notes
substantially consistent with those of the 1995 audited combined
statement of adjusted Net Assets included in the Audited Financial
Statements and the June 30, 1996 combined statement of adjusted Net
Assets included in the Audited Financial Statements; provided however,
that the amount of cash or cash equivalents remaining in the Company as
of the close of business on the day immediately prior to the Closing
Date that is in excess of the amount required to cover checks of the
Company outstanding as of the close of business on the day immediately
prior to the Closing Date, shall be reflected on the Closing Statements.
Buyer shall cause the Companies and their respective employees to assist
Sellers in the preparation of the Closing Statements, including the
taking of a physical inventory and shall provide Sellers and their
independent auditors, Xxxxxxxx, access at all reasonable times to the
personnel, properties, books and records of the Companies for such
purpose and, insofar as such books and records
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pertain to the Business, any of Buyer's Affiliates for such purpose.
The Closing Date Statement shall be accompanied by an audit report from
Xxxxxxxx stating that in its opinion such statement presents fairly, in
all material respects, the combined Net Assets as of the close of
business on the day immediately prior to the Closing Date, in conformity
with GAAP (except as set forth in the notes thereto) applied
consistently with the accounting principles applied in the Audited
Financial Statements and the Average Value Statement shall be
accompanied by a review report from Xxxxxxxx stating that in its opinion
nothing has come to its attention which would cause them to believe such
statement was not prepared on a consistent basis with those of December
31, 1995 and June 30, 1996."
3. Amendments to Section 3.7(a). Section 3.7(a) of the Agreement is
hereby amended and restated to read as follows:
"3.7 ADJUSTMENT OF PURCHASE PRICE.
(a) For purposes of this paragraph, "Base Net Asset
Value" means the higher of (i) $256,530,000 or (ii) an amount equal to
the Final Average Net Asset Value minus $13 million. If the Base Net
Asset Value exceeds Final Net Asset Value, Sellers shall pay to the
Surviving Corporation, in the manner and with interest as provided in
Section 3.7(b), the amount of such excess. If Final Net Asset Value
exceeds the Base Net Asset Value, Buyer shall cause the Surviving
Corporation to pay to Sellers, in the manner and with interest as
provided in Section 3.7(b), the amount of such excess. Any such payment
pursuant to this Section 3.7(a) shall be made at a mutually convenient
time and place (i) within 30 days after Sellers' delivery of the
documents referred to in Section 3.6(a) if no notice of disagreement is
duly delivered pursuant to Section 3.6(b), or (ii) if a notice of
disagreement is duly delivered pursuant to Section 3.6(b), then within
10 days after the earlier of (A) agreement between the parties pursuant
to Section 3.6(c) or (B) delivery of the calculation of Final Net Asset
Value and Final Average Net Asset Value referred to in Section 3.6(c)."
4. Amendments to Clause (i) of Section 6.2. Clause (i) of Section
6.2 is hereby amended and restated to read as follows:
"(i) cause each of the Companies to transfer by way of dividend
or otherwise to Holding or AHP, as the case may be, any cash or cash
equivalents held by such Company from time to time up to and including
the close of business on the day immediately prior to the Closing Date
except to the extent of the amount of all checks of the Companies
outstanding as of the close of business on the day immediately prior to
the Closing Date (and in connection therewith Sellers shall cause the
Companies to have at the close of business on the day immediately prior
to the Closing Date sufficient cash to cover all outstanding checks),"
5. Amendments to Clause (c) of Section 7.7. Clause (c) of Section
7.7 is hereby amended and restated to read as follows:
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"(c) except to the extent of the amount of all checks of the Company
outstanding as of the close of business on the day immediately prior to
the Closing Date, each Company may transfer any and all cash and cash
equivalents held as of the close of business on the day immediately
prior to the Closing Date by way of dividend or otherwise to Sellers and
their Affiliates."
6. Amendment. This First Amendment constitutes an amendment to the
Agreement pursuant to Section 12.4 of the Agreement. Except as expressly
amended by this First Amendment, each and every provision of the Agreement
remains in full force and effect in accordance with the terms thereof and, by
reference, the terms and provisions of the Agreement are incorporated herein
and made hereof.
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IN WITNESS WHEREOF, this First Amendment has been signed by each of the
parties hereto as of the date provided above.
AHP SUBSIDIARY HOLDING CORPORATION
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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AMERICAN HOME PRODUCTS CORPORATION
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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INTERNATIONAL HOME FOODS, INC.
(formerly known as American Home Food
Products, Inc.)
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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AHFP HOLDING CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Vice President and Assistant
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Secretary
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AHFP ACQUISITION CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Vice President and Assistant
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Secretary
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