EXHIBIT 2.2
AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is
entered into as of July 10, 2003, between CALIPER TECHNOLOGIES CORP., a Delaware
corporation (the "Buyer"), BERWIND CORPORATION, a Pennsylvania corporation
("Berwind") and THE BERWIND COMPANY LLC, a Delaware limited liability company
(the "Seller").
RECITALS
A. The Buyer, Berwind and the Seller are parties to that certain
Stock Purchase Agreement dated as of June 9, 2003 (the "Purchase Agreement").
Any capitalized terms not otherwise defined in this Amendment shall have the
meaning given to such terms in the Purchase Agreement.
B. The parties desire to amend the Purchase Agreement as set
forth herein to revise the list of the recipients of stock awards required to be
made by the Buyer pursuant to Section 5.2(d) of the Purchase Agreement and the
conditions upon which they will be granted, and the related closing condition
with respect to the granting of such stock awards, and to correct the reference
to the number of shares of Company Stock outstanding.
AGREEMENT
The parties to this Amendment, intending to be legally bound, agree as
follows:
1. AMENDMENT OF PURCHASE AGREEMENT.
1.1 AMENDMENT OF SCHEDULE 5.2(d).
Schedule 5.2(d) to the Purchase Agreement is hereby amended and
restated in its entirety to read as set forth in Exhibit A to this Amendment.
1.2 AMENDMENT OF SECTION 3.3(e). Section 3.3(e) of the Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(e) Restricted Stock Plan. Provided that the payments of the
amounts set forth on Schedule 5.2(d) have been approved by the stockholders of
the Company in the manner provided for under Section 280G(b)(5)(B) of the Code
and applicable regulations, the board of directors of the Buyer shall (i) have
adopted the Restricted Stock Plan and (ii) have granted, pursuant to the
Restricted Stock Plan and subject to the Closing having occurred, restricted
shares of Buyer Common Stock to the individuals (subject to such individuals
having agreed to become, and having become, employees of the Buyer, or to
accepting continuing employment as employees of Zymark) and in the amounts set
forth on Schedule 5.2(d)."
1.3 AMENDMENT OF SECTION 5.2(d). Section 5.2(d) of the Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(d) Restricted Stock Plan. Prior to the Closing, the board of
directors of the Buyer shall (i) adopt the Restricted Stock Plan and (ii) grant,
pursuant to the Restricted Stock Plan and subject to the Closing having
occurred, restricted shares of Buyer Common Stock to the individuals (subject to
such individuals having agreed to become, and having become, employees of the
Buyer, or to accepting continuing employment as employees of Zymark) and in the
amounts set forth on Schedule 5.2(d). Notwithstanding the foregoing, the Buyer
shall have no obligation pursuant to this Section 5.2(d) if the payments of the
amounts set forth on Schedule 5.2(d) have not been approved by the stockholders
of the Company in the manner provided for under Section 280G(b)(5)(B) of the
Code and applicable regulations; provided, however, that the Buyer in its sole
and absolute discretion may make any such payments even if such approval has not
been obtained."
1.4 CORRECTION TO RECITAL AND SECTION 4.1(e). Background recital A
on page 1 is hereby amended by replacing "1000" with "855" as the number of
shares of Company Stock. Section 4.1(e) is hereby amended by replacing "1000" in
line three thereof with "855" as the number of shares of Common Stock of the
Company outstanding.
1.5 NO OTHER AMENDMENTS. Except as it has been specifically
amended pursuant to Sections 1.1, 1.2, 1.3 and 1.4, the Purchase Agreement shall
from and after the date hereof continue in full force and effect.
2. ADDITIONAL PROVISIONS.
2.1 ENTIRE AGREEMENT AND MODIFICATION. The Purchase Agreement,
including the schedules and exhibits thereto, the Confidentiality Agreement and
this Amendment set forth the entire understanding of the parties relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof. The Purchase Agreement, as amended by this Amendment,
may not be further amended except by a written agreement executed in accordance
with Section 8.6 of the Purchase Agreement.
2.2 SEVERABILITY. If any provision of this Amendment or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
2.3 HEADINGS. The headings contained in this Amendment are for
convenience of reference only, shall not be deemed to be a part of this
Amendment and shall not be referred to in connection with the construction or
interpretation of this Amendment.
2.4 COUNTERPARTS AND EXCHANGES BY FAX. This Amendment may be
executed in several counterparts, each of which shall constitute an original and
all of which, when taken together, shall constitute one agreement. The exchange
of a fully executed Amendment (in counterparts or otherwise) by fax shall be
sufficient to bind the parties to the terms and conditions of this Amendment.
[Remainder of page intentionally left blank]
2
The parties to this Amendment have caused this Amendment to be executed
and delivered as of the date first above mentioned.
CALIPER TECHNOLOGIES CORP.
By: /s/ Michael R. Knapp
-------------------------------
Name: Michael R. Knapp
Title: Chief Executive Officer
THE BERWIND COMPANY LLC
By: /s/ Van Billet
----------------------------------------
Name: Van Billet
Title: Vice President and Chief Financial Officer
BERWIND CORPORATION
By: /s/ Van Billet
----------------------------------------
Name: Van Billet
Title: Vice President and Chief Financial Officer
The following schedule has been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Caliper Technologies Corp. will provide this schedule as
supplemental information to the SEC upon their request.
SCHEDULE DESCRIPTION
Schedule 5.2(d) Restricted Stock Plan (list of individuals and
terms of restricted stock grants).