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EXHIBIT 2.2
FIRST AMENDMENT TO WRAP AGREEMENT
This FIRST AMENDMENT TO WRAP AGREEMENT (the "AMENDMENT"), dated as of March
28, 1997, is made and entered into by and among HERCULES INCORPORATED, a
Delaware corporation ("HERCULES"), MALLINCKRODT INC., a New York corporation
("MALLINCKRODT"), GIVAUDAN-ROURE (INTERNATIONAL) SA, a Swiss corporation
("GRI"), and ROCHE HOLDINGS, INC., a Delaware corporation ("ROCHE" and, together
with GRI, the "INTERESTED PERSONS" and each individually an "INTERESTED
PERSON").
RECITALS
A. The Owners and the Interested Persons are parties to that certain
Agreement dated as of February 4, 1997 (the "AGREEMENT"), subject and pursuant
to which the parties and their respective Affiliates intend to consummate
various transactions more particularly described in the Agreement.
B. The parties desire to amend the Agreement to more accurately reflect the
mutual intentions of the parties with respect to certain defined terms and to
make certain other changes, all as more particularly set forth in this
Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants contained herein, the parties hereto agree
as follows:
1. DEFINITIONS
Capitalized terms, when used in this Amendment and not otherwise defined,
shall have meanings ascribed thereto in the Agreement. In addition, the
definitions of "Agreement," "Current Assets," "Current Liabilities," "Long-Term
Liabilities," "Long-Term Liabilities Baseline," "Partners' Representatives,"
and "Working Capital Baseline" set forth in Sections 1.1.9, 1.1.22, 1.1.23,
1.1.62, 1.1.64, 1.1.72 and 1.1.104, respectively, shall be, and hereby are,
deleted and the following Sections 1.1.9, 1.1.22, 1.1.23, 1.1.62, 1.1.64, 1.1.72
and 1.1.104, respectively, shall be, and hereby are, inserted in their place:
1.1.9 Agreement shall mean this Agreement, as
amended by that certain First Amendment to Wrap Agreement dated March 28,
1997, the Disclosure Schedule and all schedules, annexes, exhibits and
appendices hereto.
1.1.22 Current Assets shall mean, as of any time,
all items, excluding deferred taxes, the current portion, if any, of the
Investment Assets (as defined in the Partnership Agreement), any accrued
but unpaid interest receivable on the Investment Assets and the unamortized
portion of any capitalized costs or expenses of obtaining the Tastemaker
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Debt or the Investment Assets, which would be classified as a current asset
under the heading "CURRENT ASSETS" on a combined consolidated balance sheet
of Tastemaker and Tastemaker B.V. determined and prepared in accordance
with GAAP applied on a basis consistent with the practices and
methodologies used in preparing the December 31, 1995 audited combined
consolidated balance sheet of Tastemaker and Tastemaker B.V.
1.1.23 Current Liabilities shall mean, as of any
time, the sum of (A) the amount of accrued but unpaid interest, fees and
other costs (but excluding principal) required to be paid to the Tastemaker
Debt lender on the Closing Date in order to pay in full and discharge all
of the Tastemaker Debt other than the principal thereof, and (B) all items,
excluding deferred taxes, the Tastemaker Debt and any Tax that is the
liability or obligation of Tastemaker, which would be classified as a
current liability under the heading "CURRENT LIABILITIES" on a combined
consolidated balance sheet of Tastemaker and Tastemaker B.V. determined and
prepared in accordance with GAAP applied on a basis consistent with the
practices and methodologies used in preparing the December 31, 1995 audited
combined consolidated balance sheet of Tastemaker and Tastemaker B.V.;
provided, that when determining whether any Tax is included as a Current
Liability for purposes of calculating the Adjusted Aggregate Value, the
principles of Treasury Regulations Section 1.1502-76(b), applied in the
manner set forth in the Tax Annex, shall govern.
1.1.62 Long-Term Liabilities shall mean, at any
time, the sum of (A) the amount of accrued but unpaid interest, fees and
other costs (but excluding principal) required to be paid to the Tastemaker
Debt lender on the Closing Date in order to pay in full and discharge all
of the Tastemaker Debt other than the principal thereof, and (B) the
liabilities of the Companies (other than Current Liabilities, the long-term
component of pension liabilities, deferred taxes, the Tastemaker Debt and
any Tax that is a liability or obligation of Tastemaker) which would be
classified as a liability under the heading "TOTAL LIABILITIES" on a
combined consolidated balance sheet of Tastemaker and Tastemaker B.V.
determined and prepared in accordance with GAAP applied on a basis
consistent with the practices and methodologies used in preparing the
December 31, 1995 audited combined consolidated balance sheet of Tastemaker
and Tastemaker B.V.
1.1.64 Long-Term Liabilities Baseline shall mean the
total liabilities of the Companies (other than Current Liabilities, the
long-term component of pension liabilities, deferred taxes, the Tastemaker
Debt and any Tax that is the liability or obligation of Tastemaker) which
were classified as a liability under the heading "TOTAL LIABILITIES" on the
June 28, 1996 unaudited combined consolidated balance sheet
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of Tastemaker and Tastemaker B.V. and their respective subsidiaries, which
was an amount equal to Thirty Eight Million Four Hundred Fifty Thousand
Twenty-Four Dollars ($38,450,024.00) plus any Tax on such balance sheet
that is a long-term liability of Tastemaker.
1.1.72 Partners' Representatives shall mean Israel Floyd, George
MacKenzie, M.G. Nichols and T.D. Meier.
1.1.104 Working Capital Baseline shall mean the Net Working Capital
of the Companies on the June 28, 1996 unaudited combined consolidated
balance sheet of Tastemaker and Tastemaker B.V., which was an amount equal
to Seventy- Seven Million Seven Hundred Six Thousand Nine Hundred Thirteen
Dollars ($77,706,913.00), plus any Tax on such balance sheet that is a
current liability of Tastemaker.
2. EFFECT OF AMENDMENT
Except as expressly set forth herein, the Agreement is unchanged and in
full force and effect, and the parties hereby ratify and confirm the Agreement
as amended hereby. The parties further agree that all references to the
Agreement in the Transaction Documents, the D&F Transaction Agreements, the
Fries Withdrawal Documents (as defined in the Partnership Agreement) and any
other certificates, documents, instruments or agreements entered into pursuant
thereto or delivered in connection therewith shall be deemed to mean and refer
to the Agreement, as amended by this Amendment.
3. CONSENT OF OTHERS
By signing in the spaces provided below, each of Givaudan- Roure (United
States), Inc., Tastemaker, Hercules Flavor, Inc., Hercules Credit, Inc. and
Fries & Fries, Inc. consent to this Amendment and to the effect hereof on the
Contribution Agreement and the Fries Withdrawal Documents (as defined in the
Partnership Agreement).
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date and year first written above.
GIVAUDAN-ROURE (INTERNATIONAL) SA HERCULES INCORPORATED
By_______________________ By_______________________
Name_____________________ Name_____________________
Title____________________ Title____________________
ROCHE HOLDINGS, INC. MALLINCKRODT INC.
By_______________________ By_______________________
Name_____________________ Name_____________________
Title____________________ Title____________________
CONSENTED BY:
GIVAUDAN-ROURE (INTERNATIONAL) SA TASTEMAKER
By_______________________ By_______________________
Name_____________________ Name_____________________
Title____________________ Title____________________
HERCULES FLAVOR, INC. FRIES & FRIES, INC.
By_______________________ By_______________________
Name_____________________ Name_____________________
Title____________________ Title____________________
HERCULES CREDIT, INC.
By_______________________
Name_____________________
Title____________________