6
EXHIBIT 10(xvi)
Amendment No. 1
to
Stock and Asset Purchase Agreement
----------------------------------
AMENDMENT No. 1, dated as of October 22, 1998 (this "Amendment"), to
the STOCK AND ASSET PURCHASE AGREEMENT, dated as of August 13, 1998 (the "Stock
and Asset Purchase Agreement"), between Pfizer Inc., a Delaware corporation
("Pfizer"), and Stryker Corporation, a Michigan corporation ("Stryker").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Pfizer and Stryker desire to amend the Stock and Asset
Purchase Agreement in certain respects as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
set forth, the parties hereto agree as follows:
Section 1. Capitalized terms used in this Amendment that are not
otherwise defined herein shall have the meanings ascribed to such terms in the
Stock and Asset Purchase Agreement.
Section 2. The Stock and Asset Purchase Agreement shall be amended as
follows:
2.1 Section 2.7 shall be amended to read in its entirety as follows:
"Section 2.7 PURCHASE PRICE. (a) In consideration of
the sale and transfer of the Shares and the sale and transfer
of the Conveyed Assets, Purchaser shall pay to Pfizer, as
agent for the Seller Corporations (or to Pfizer's Affiliates
as Pfizer may on behalf of the Seller Corporations direct in
the written transfer instructions hereinafter referred to),
an aggregate amount of One Billion Six Hundred Fifty Million
Dollars ($1,650,000,000.00) (the "Aggregate Payment"), in
immediately available funds, by wire transfer in accordance
with written instructions given by Pfizer to Purchaser not
less than two (2) Business Days prior to the Closing, which
consideration shall be subject to the purchase price
adjustment provided for in Section 2.8 and shall be allocated
as described below.
(b) In consideration of the sale and transfer of the
Shares, Purchaser agrees to purchase from the Stock Selling
Corporations the Shares for an aggregate purchase price of
Five Hundred Twenty-Four Million One Hundred Eighty Thousand
Dollars ($524,180,000.00), allocated among the Shares as
described in Schedule 2.9 (the "Share Purchase Price").
2
(c) In consideration of the sale and transfer of the
Conveyed Assets, the Purchaser agrees to purchase from each
Asset Selling Corporation the Conveyed Assets owned by such
Asset Selling Corporation for an aggregate purchase price of
One Billion One Hundred Twenty-Five Million Eight Hundred
Twenty Thousand Dollars ($1,125,820,000.00), allocated among
the Asset Selling Corporations as described in Section 2.9
(the "Asset Purchase Price" and, together with the Share
Purchase Price, the "Aggregate Purchase Price")."
2.2 The last sentence of Section 2.9 shall be deleted and
replaced by the following:
"If after all other adjustments to the Allocation are
made, the Allocation with respect to any Asset Selling
Corporation or Conveyed Subsidiary (or Subsidiary), when
expressed in the relevant local currency at the rate of
exchange used to determine Final Working Capital, is less
than the local currency net book value, determined in
accordance with GAAP, of the Conveyed Assets of such Asset
Selling Corporation or the assets of such Conveyed Subsidiary
(or Subsidiary) as of the Closing Date, then the Allocation
with respect to such Asset Selling Corporation or Conveyed
Subsidiary (or Subsidiary) shall be adjusted so that it is
equal to such local currency net book value converted at the
rate of exchange used to determine Final Working Capital and
a corresponding adjustment will be made, as to the first
$3,000,000, to the Allocation with respect to Howmedica Inc.,
and as to any balance in excess of the first $3,000,000, to
the Allocation with respect to Howmedica GmbH."
2.3 Schedule 2.9 shall be amended and replaced in its entirety
by the Schedule 2.9 attached hereto as Annex A.
2.4 Section 4.2(c) shall be amended to read in its entirety as
follows:
"(c) Purchaser shall have received funds pursuant to
the credit facilities provided for in the commitment letter,
dated October 22, 1998, between Purchaser, on the one hand,
and Goldman Sachs Credit Partners L.P., Bank of America
National Trust and Savings Association and Nationsbanc
Montgomery Securities LLC (the "Arrangers") on the other
hand, a copy of which has been furnished to Pfizer (the
"Financing Commitment Letter"). The parties agree that
Purchaser's ability to rely on the condition set forth in
this Section 4.2(c) is subject to the provisions of Section
7.3(d) hereof."
2.5 Section 7.3(d) shall be amended to read in its entirety as
follows:
"(d) Purchaser shall use its best efforts to cause
the conditions to funding under the Financing Commitment
Letter to be satisfied and to borrow the funds provided
thereunder. Notwithstanding the foregoing, and subject to the
following provisions of this Section 7.3(d), Purchaser shall
not be required to borrow funds under the Financing
Commitment Letter if the Arrangers notify
3
Purchaser in writing (the "Arrangers' Notice") that pursuant
to the Financing Commitment Letter, they have determined
that changes in the tranche amounts or interest rate margin
are necessary and such changes cause the weighted average
Applicable Eurodollar Rate Margin determined as set forth in
the Financing Commitment Letter on the credit facilities
(including the refinancing of the Japanese Yen denominated
indebtedness in the amount of approximately $75 million
provided for therein) to exceed 3.05 per cent per annum.
Purchaser will keep Pfizer informed of the status of
discussions regarding pricing of the loans from and after
the date hereof and will notify Pfizer of its receipt of any
Arrangers' Notice within 24 hours and will provide Pfizer
with a copy thereof and the calculation of the weighted
average Applicable Eurodollar Rate Margin and a
determination of the amount thereof that exceeds 3.05 per
cent per annum (such amount in excess of 3.05 per cent being
referred to as the "Maximum Excess Margin"). In such event,
Pfizer shall have the right (but not the obligation), by
notice to Purchaser within 2 Business Days of Pfizer's
receipt of any Arrangers' Notice, to elect to bear and
reimburse Purchaser on a quarterly basis an amount equal to
the portion of the weighted average Applicable Eurodollar
Rate Margin which accrued on the credit facilities during
that quarter that exceeds 3.05 per cent per annum, but in no
event shall Pfizer be responsible for more than the Maximum
Excess Margin. If Pfizer makes such election, Purchaser
shall be required to borrow the funds under the Financing
Commitment Letter unless the Maximum Excess Margin exceeds
.25 per cent, in which case Purchaser may elect not to
borrow the funds regardless of whether Pfizer has made the
election referred to above. Within 15 days of the end of
each quarter, Purchaser will provide Pfizer with a written
statement of the amounts outstanding under each tranche of
the credit facilities during the quarter and the Applicable
Eurodollar Rate Margins together with a calculation of the
weighted average Applicable Eurodollar Rate Margin accrued
during such quarter and the amount payable by Pfizer under
this Section 7.3(d). Pfizer shall pay such amount to
Purchaser within 5 Business Days of receipt of such
statement from the Purchaser. Pfizer shall have no liability
to reimburse Purchaser for any additional interest which may
result from any changes in or waivers of the terms of
payment under the credit facilities provided pursuant to the
Financing Commitment Letter after Pfizer's election under
this Section 7.3(d) has been made, whether such additional
interest results as a consequence of changes in interest
rates or spreads, refinancing, default, changes in the
amounts and timing of payments or otherwise (whether any
such change is permitted by the original terms of the credit
agreement or results from subsequent modifications agreed to
by the lenders and Purchaser)."
Section 3. REFERENCES. All references to "this Agreement"
in the Stock and Asset Purchase Agreement shall mean the Stock
and Asset Purchase Agreement as amended hereby.
Section 4. GOVERNING LAW. This Amendment shall be governed
by the laws of the State of New York, its rules of conflict
of laws notwithstanding.
4
Section 5. COUNTERPARTS. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an
original, and all of which shall constitute one and the same
agreement.
Section 6. NO OTHER AMENDMENTS. Except as expressly amended
hereby, the terms and conditions of the Stock and Asset
Purchase Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed or caused this
Amendment to be executed as of the date first written above.
PFIZER INC.
By:
----------------------------------
Name:
Title:
STRYKER CORPORATION
By:
----------------------------------
Name:
Title:
SCHEDULE 2.9
SECTION 2.9(i) Allocation of Purchase Price
Allocation Among Conveyed Subsidiaries and Asset Selling Corporations
CONVEYED SUBSIDIARIES
Howmedica International Inc. (Panama) $160,571,000
Benoist Girard & Cie S.C.A (France) 95,776,000
Howmedica Leibinger Inc. (Delaware) 85,105,000
Howmedica GmbH (Germany) 59,391,000
Howmedica Leibinger GmbH & Co. KG (Germany)1 64,524,000
Jaquet Orthopedie S.A. (Switzerland) 21,100,000
Howmedica Iberica S.A. (Spain) 22,579,000
Pficonprod Pty Ltd. (Australia) 15,134,000
-----------
SUBTOTAL CONVEYED SUBSIDIARIES $ 524,180,000
ASSET SELLING CORPORATIONS
Howmedica Inc. (US) $736,697,000
Pfizer Seiyaku K.K. (Japan) 148,639,000
Pfizer Italiana S.p.A (Italy) 67,100,000
Howmedica France S.C.A. (France) 39,947,000
Howmedica International Limited (U.K.) 27,008,000
Pfizer Canada Inc. (Canada) 17,716,000
Pfizer Medical Technology Group A.B. (Sweden) 12,298,000
Pfizer Medical Technology Group (Netherlands) B.V. 11,061,000
Pfizer Medical Technology Group Ltd. (U.K.) 12,558,000
Pfizer Hellas A.E. (Greece) 12,116,000
Roerig Farmaceutici Italiana S.p.A. (Italy) 10,076,000
Pfizer Medical Technology Group (Belgium) N.V. 6,861,000
Pfizer Corporation (Panama) Puerto Rico Branch 6,253,000
Pfizer Laboratories Ltd. (New Zealand) 4,863,000
Pfizer Limited (Taiwan) 3,474,000
Laboratorios Pfizer Ltda. (Brazil) 1,824,000
Laboratorios Pfizer Ltda. (Portugal) 1,737,000
Howmedica Handelsgesellschaft m.b.H (Austria) 1,476,000
Duchem Laboratories Ltd. (India) 1,216,000
Pfizer Oy (Finland) 1,138,000
Pfizer A/S (Denmark) 894,000
Pfizer Medical Technology Group A.B. (Sweden) Norway Branch 521,000
Pfizer Laboratories (Proprietary) Ltd. (South Africa) 347,000
-----------
SUBTOTAL ASSET SELLING CORPORATIONS 1,125,820,000
--------------
TOTAL PURCHASE PRICE ALLOCATION $1,650,000,000
==============
- --------
1 Subsidiary of Conveyed Subsidiary Howmedica GmbH (Germany)