EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment (this "Amendment") to Agreement and Plan of
Merger, dated as of July 6, 2004, is by and among Teleflex Incorporated, a
Delaware corporation (the "Buyer"), TFX Acquisition Corporation, a California
corporation and wholly-owned subsidiary of the Buyer (the "Merger Sub"), Xxxxxxx
Xxxxxx & Co. LLC (the "FS Management Company"), FS Equity Partners IV, L.P., a
Delaware limited partnership (the "Shareholders' Representative"), and River
Holding Corp., a Delaware corporation ("Holding"), and Xxxxxx Respiratory Care
Inc., a California corporation (the "Company"). Capitalized terms used but not
defined in this Amendment have the meaning given such terms in the Agreement
(defined below).
BACKGROUND
The Parties have entered into an Agreement and Plan of Merger dated May
17, 2004 (the "Agreement"). The Parties now desire to amend the Agreement as set
forth in this Amendment. In consideration of the mutual covenants and agreements
set forth below, the Parties agree as follows:
TERMS
1. Section 1 of the Agreement is hereby amended by adding the following
new definition immediately following the definition of "GAAP" contained therein:
""Handelsbanken Obligations" means all obligations and liabilities
(including all unpaid amounts of principal and accrued interest) then
outstanding under the Xxxxxx RCI AB Credit Facility and/or any other agreements
or instruments entered into between or among the Company, Xxxxxx RCI AB or any
other subsidiary of the Company, on the one hand, and Svenska Handelsbanken AB
or any of its subsidiaries or Affiliates, on the other, as of the opening of
business on July 6, 2004."
2. The definition of "Company Retention Payment Obligation" contained in
Section 1 of the Agreement is hereby amended by deleting section (a) of such
definition in its entirety and replacing it with the following:
"(a) the amount of retention payments that may be payable by the
Company pursuant to oral or written agreements the Company enters into after the
date hereof and on or before the Closing with certain of its officers and
employees (including the payments of bonuses to each of Xxxxx Xxxxx and Xxxx
Xxxxxxx, employees of the Company) up to a maximum of seven hundred fifty
thousand dollars ($750,000), and"
3. The definition of "Xxxxxx RCI AB Credit Facility" contained in Section
1 of the Agreement is hereby amended and restated in its entirety and replaced
with the following:
""Xxxxxx RCI AB Credit Facility" means that certain Credit Agreement
between Svenska Handelsbanken AB, Steamer Holding AB and Xxxxxx RCI AB dated
October 1, 2003, as amended or supplemented through the date hereof."
4. The definition of "Senior Preferred Share Price" contained in Section 1
of the Agreement is hereby amended by deleting subsection (ii) of such
definition in its entirety and replacing it with the following:
"(ii) all accumulated and unpaid dividends thereon (as set forth in the
Company's certificate of designation for the Company Senior Preferred Shares),
as if the Company Senior Preferred Shares had remained outstanding through and
including that date which is thirty (30) days after the Closing Date (or such
other date as the Shareholders' Representative may specify in writing to the
Buyer no later than two (2) business days prior to the Closing Date),"
5. Section 2.5(f) of the Agreement is hereby amended by deleting the first
sentence of such section in its entirety and replacing it with the following:
"The FS Management Company agrees that it shall retain, and not
distribute to the general or limited partners of the Shareholders'
Representative, or to the holders of the Company Common Shares, the Company
Options or the Warrants, $5,000,000 of the Preliminary Purchase Price (the "Net
Working Capital Holdback"), until the Final Closing Date Net Working Capital
Amount and the Final Closing Date Cash have become final and binding on the
Parties pursuant to Section 2.5(c), and all amounts required to be paid by the
Shareholders' Representative or the Buyer pursuant to Section 2.5(d) have been
paid in full."
6. Section 2.5(d) of the Agreement is hereby amended by adding the
following new subparagraph (iii):
"(iii) In addition to any adjustment to the Preliminary Purchase Price
provided under the foregoing subparagraphs (i) or (ii), (x) if the Handelsbanken
Obligations are less than $9,912,539 (such difference, the "Handelsbanken
Shortfall"), Buyer shall pay to the FS Management Company (for the benefit of
the Holders of the Company Common Shares, the Company Options and the Warrants),
by wire transfer in immediately available funds to the account designated by the
Shareholders Representative, an amount equal to the Handelsbanken Shortfall,
which amount will be added to the Net Working Capital Holdback and allocated and
distributed as provided in Section 2.5, or (y) if the Handelsbanken Obligations
exceed $9,912,539 (such excess, the "Handelsbanken Excess"), then the
Shareholders' Representative shall pay to the Buyer, by wire transfer in
immediately available funds to the account designated by the Buyer, an amount
equal to the Handelsbanken Excess."
7. Section 2.5 of the Agreement is hereby further amended by adding the
following new subsection (g):
"(g) Notwithstanding the terms and provisions of subparagraph (a) of
this Section 2.5, and so long as the Closing occurs on or prior to July 6, 2004,
then, each of the Estimated Closing Date Balance Sheet, the Estimated Closing
Date Net Working Capital Amount, the Estimated Closing Date Cash, the Final
Closing Date Balance Sheet, the Closing Date Net Working Capital Amount and the
Closing Date Cash shall be determined as of the close of business on June 30,
2004. If the actual date on which the Closing occurs is after July 6, 2004, then
the parties agree that each of the Estimated Closing Date Balance Sheet, the
Estimated Closing Date Net Working Capital Amount, the Estimated Closing Date
Cash, the Final Closing Date Balance Sheet, the
Closing Date Net Working Capital Amount and the Closing Date Cash shall be
determined as of the opening of business on the Closing Date."
8. Section 4.1 of the Agreement is hereby amended by deleting the number
"588,156" in subparagraph (b) of such section and replacing it with the number
"588,151."
9. Section 4.2 of the Company Disclosure Letter is hereby amended by
deleting the number "588,156" in the column entitled "Senior Preferred Shares"
held by Holding and replacing it with the number "588,151."
10. Section 4.6 of the Company Disclosure Letter is hereby amended by
adding thereto the following:
"HRC HOLDING INC.
Jurisdiction of Incorporation: Delaware
Authorized shares of capital stock: 1,000
No. shares held in treasury: 0
No. shares issued and outstanding: 100
NAME OF HOLDER NUMBER OF SHARES
Xxxxxx Respiratory Care Inc. 100%"
11. Section 5.13 of the Agreement is hereby amended by deleting the fourth
sentence of such section in its entirety and replacing it with the following:
"The Environmental Insurance shall have a term of five (5) years,
coverage limit of no less than $5,000,000, and a self-insured retention not to
exceed $100,000, with the exception of cleanup cost coverage for the former UST
area at the Arlington Heights facility, for which the self-insured retention
shall not exceed $350,000."
12. Section 7.1(l) of the Agreement is hereby amended by adding the
following language after the word "obtained":
"(other than the consent of Health Trust Purchasing Group that would otherwise
be required pursuant to Item 3 described in Schedule 7.1(l), the receipt by
Buyer of which is hereby waived as a condition to Buyer's obligation to close)"
13. Section 8.2(e) of the Agreement is hereby amended by inserting after
the first sentence of such subsection the following:
"In addition, if Buyer makes a claim for indemnification for cleanup
costs incurred for the former UST area at the Arlington Heights facility under
the Environmental Insurance where the self-insured retention is actually paid by
Buyer and/or the Surviving Corporation, then the Significant Shareholders,
jointly and severally, shall indemnify Buyer to the extent that the cleanup
costs actually paid by Buyer exceed $100,000 up to the maximum applicable
self-insured retention amount of $350,000 (i.e., the Significant Shareholders
shall, pursuant to this provision, indemnify Buyer for an amount up to but not
in excess of $250,000); provided,
however, that upon receipt of a no further response action letter or document of
similar effect ("NFR Letter") from the Illinois Department of the Environment
with respect to the former UST area, Buyer shall submit the NFR Letter to the
insurer, and upon endorsement of the Environmental Insurance to provide for a
$100,000 self-insured retention for cleanup cost coverage for the former UST
area at the Arlington Heights facility, Significant Shareholders shall have no
further obligation to indemnify Buyer pursuant to this sentence. Notwithstanding
the foregoing, at all times after the Closing, Buyer will reasonably cooperate
with the efforts of CenterPoint Trust Properties to obtain the NFR Letter."
14. Section 8.2 of the Agreement is hereby further amended by inserting the
following new subsection (g):
"(g) Notwithstanding anything to the contrary contained in this
Agreement, the Significant Shareholders shall pay any costs or expenses incurred
by the Company or its subsidiaries or Affiliates prior to the Closing and any
additional reasonable costs and/or expenses incurred by the Surviving
Corporation or its respective subsidiaries or Affiliates, in each case that are
not included or reflected in the Estimated Closing Date Balance Sheet or the
Final Closing Date Balance Sheet in order to (i) complete installation of a
wastewater treatment system as described in that certain Contract No.
CM-C122TC-04 between Kiewclass (M) Sdn Bhd and CST Engineering Sdn Bhd, dated
Xxxx 00, 0000, xx xxx Xxxxx Xxxxxx facility and obtain any permits or
authorizations required by the Malaysia Department of the Environment for
operation of the Kuala Lumpur facility and the discharge of treated water to the
sewer system, (ii) repair damaged friable asbestos containing materials on the
boiler flue, as recommended by URS Corporation in the Asbestos Survey Report for
the Company's Arlington Heights facility and (iii) arrange for proper disposal
or reuse of a stockpile of soil presently located at the Arlington Heights
facility."
15. Section 8.2 of the Agreement is hereby further amended by inserting the
following new subsection (h):
"(h) Notwithstanding anything to the contrary contained in this
Agreement, the Significant Shareholders, jointly and severally, shall indemnify
Buyer (including, after the Closing, the Surviving Corporation and each of its
subsidiaries) from and against any and all Adverse Consequences arising from or
relating to claims alleged in that certain letter by Xxxxxxx Xxxxxxxx to the
Company dated May 24, 2004 or any other claims that may be asserted by Xxxxxxx
Xxxxxxxx against Buyer, the Surviving Corporation or its subsidiaries arising
from or relating to Xxxxxxx Xxxxxxxx'x employment with the Company at any time
prior to the Closing or the termination of such employment."
16. Section 8.2 of the Agreement is hereby further amended by inserting the
following new subsection (i):
"(i) Notwithstanding anything to the contrary contained in this
Agreement, the Significant Shareholders, jointly and severally, shall indemnify
Buyer (including, after the Closing, the Surviving Corporation and each of its
subsidiaries) from and against any and all Adverse Consequences incurred by
Buyer and/or the Surviving Corporation arising from or relating to the failure
of the Company Convertible Notes, Company Senior Notes, HRC Holding Senior 12%
Notes or HRC Holding 12% Notes to be paid off and retired as of the Closing,
with
all rights and obligations of the parties thereto under such notes fully
satisfied and terminated, as the case may be, as of the Closing. Without
limiting the foregoing, the Significant Shareholders, jointly and severally,
shall indemnify Buyer (including, after the Closing, the Surviving Corporation
and each of its subsidiaries) for and in respect of (i) any payments (including,
without limitation, in respect of principal and accrued interest and any costs
or expenses provided for under such notes) required to be made by Buyer and/or
the Surviving Corporation or its subsidiaries under the aforementioned notes in
excess of the amounts paid to the holders of such notes and included in the
Indebtedness deducted from the Preliminary Purchase Price at the Closing and
(ii) any Adverse Consequences that may be incurred by Buyer and/or the Surviving
Corporation or its subsidiaries as a result of any claim by a holder of Company
Convertible Notes that such holder is entitled to convert such notes into
Company Common Shares or other equity of the Company."
17. Section 8.5(a) of the Agreement is hereby amended by deleting
subsection (iii) of such section in its entirety and replacing it with the
following:
"(iii) in respect of claims made pursuant to Sections 8.2(b), 8.2(c),
8.2(d), 8.2(e), 8.2(f), 8.2(g), 8.2(h) or 8.2(i), or"
18. Section 8.5(b) of the Agreement is hereby amended by deleting
subsection (iii) of such section in its entirety and replacing it with the
following:
"(iii) in respect of claims made pursuant to Sections 8.2(b), 8.2(c),
8.2(e), 8.2(f), 8.2(g), 8.2(h) or 8.2(i)."
19. Section 10.9(d) of the Agreement is hereby amended by deleting the
first sentence and replacing it with the following:
"Each party hereto hereby irrevocably designates and appoints CT
Corporation System, 000 X. 0xx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
(hereinafter called the "Agent"), as its attorney-in-fact to receive service of
process in such Proceeding, it being agreed that service upon such
attorney-in-fact shall constitute valid service upon each such party or its
successors or assigns, and each such party agrees that (i) the sole
responsibilities of the Agent shall be (x) to receive such process, (y) to send
a copy of any such process so received to such party, by overnight courier, at
the address set out in Section 10.8 of this Agreement, or at the last address
filed in writing by such party with the Agent, and (z) to give prompt telephonic
notice of receipt thereof to such party at such address, and (ii) the Agent
shall have no responsibility for the receipt or non-receipt by such party of
such process, nor for any performance or non-performance by such party, or any
other party to this Agreement or their successors or assigns."
20. Amendment. Except as affected by this Amendment, the Agreement is
unchanged and continues in full force and effect. All references to the
Agreement shall refer to the Agreement as amended by this Amendment. This
Amendment shall be binding upon and inure to the benefit of each of the
undersigned and their respective successors and permitted assigns.
21. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by
facsimile shall be as effective as delivery of a manually executed counterpart
of this Amendment.
22. Governing Law. This Amendment shall be governed by and construed in
accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first written above.
BUYER
Teleflex Incorporated
By: /s/ Xxxx Xxxxxxxx
______________________________________
Name: Xxxx Xxxxxxxx
Title: Associate General Counsel and Secretary
MERGER SUB
TFX Acquisition Corporation
By: /s/ Xxxx Xxxxxxxx
______________________________________
Name: Xxxx Xxxxxxxx
Title: Secretary
FS MANAGEMENT COMPANY
Xxxxxxx Xxxxxx & Co. LLC
By: /s/ Xxxxxxx Xxxxxxx
______________________________________
Name: Xxxxxxx Xxxxxxx
Title:
SHAREHOLDERS' REPRESENTATIVE
FS Equity Partners IV, L.P.
By: FS Capital Partners LLC
Its: General Partner
By: /s/ Xxxxxxx Xxxxxxx
______________________________________
Name: Xxxxxxx Xxxxxxx
Title:
[Signature Page to First Amendment to Agreement and Plan of Merger]
HOLDING
River Holding Corp.
By: /s/ Xxxxxxx X. French
______________________________________
Name: Xxxxxxx X. French
Title: CEO
COMPANY
Xxxxxx Respiratory Care Inc.
By: /s/ Xxxxxxx X. French
______________________________________
Name: Xxxxxxx X. French
Title: CEO
[Signature Page to First Amendment to Agreement and Plan of Merger]
