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EXHIBIT 2.3
FIRST AMENDMENT TO PURCHASE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AGREEMENT dated as of February 27,
1998 (the "First Amendment") by and among AMERICAN CYANAMID COMPANY, a Maine
Corporation ("Cyanamid"), AMERICAN HOME PRODUCTS CORPORATION, a Delaware
corporation ("AHP"), AHP SUBSIDIARY HOLDING CORPORATION, a Delaware corporation
("AHP Sub" and, together with AHP and Cyanamid, "Sellers") and Tyco
International (US) Inc., a Massachusetts corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, the parties hereto have previously entered into
that certain Purchase Agreement dated as of December 20, 1997
(the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement
as provided in this First Amendment.
NOW, THEREFORE, in consideration of the foregoing
premises and the representations, warranties, covenants and
agreements herein contained, the parties hereto, intending to
be legally bound, agree as follows:
1. Upon written notice to AHP, Buyer or a Permitted Assignee, may elect to
purchase the Intellectual Property, except that in the case of Know-How, all
promotional literature, customer and supplier lists and similar data and
information shall be excluded, in each case owned by Sherwood and
Sherwood-Accurate, Inc. (the "Sherwood Transferable Intellectual Property"),
directly from Sherwood and Sherwood-Accurate, Inc. immediately prior to Buyer's,
or a Permitted Assignee's, purchase of the Shares at the Closing for a purchase
price equal to ONE HUNDRED FORTY MILLION DOLLARS ($140,000,000) (the "IP
Purchase Price") payable upon such purchase by wire transfer of immediately
available funds to an account specified in writing by AHP.
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(a) If Buyer, or its Permitted Assignee, elects to purchase the Sherwood
Transferable Intellectual Property directly from Sherwood and Sherwood-Accurate,
Inc., notwithstanding anything to the contrary contained in the Agreement:
(i) The IP Purchase Price shall be distributed directly or indirectly to
AHP by Sherwood and Sherwood-Accurate, Inc. immediately prior to the
Closing.
(ii) for purposes of the Agreement, the IP Purchase Price shall be deemed
to be a partial payment of the Purchase Price;
(iii) the Sherwood Transferable Intellectual Property shall be conveyed by
general assignment and all costs and expenses associated with such
sale, transfer and assignment, including the costs of preparing and
recording all documents of transfer (including such documents in
individual countries) and Taxes other than income taxes or similar
taxes, shall be for the account of Buyer; and
(iv) the Sherwood Transferable Intellectual Property shall be deemed to
be Intellectual Property as of the Closing for purposes of the
Agreement, including without limitation the representations and
warranties set forth in Section 4.10, the covenants set forth in
Article VI, and the Closing Statement, adjustment to Purchase Price
and related matters set forth in Sections 3.5 and 3.6.
(b) In the event that the Closing does not occur within 24 hours after the
purchase of the Sherwood Transferable Intellectual Property contemplated hereby,
then such purchase shall be null and void for all purposes.
2. The Disclosure Schedule is hereby deemed amended by deleting the Financial
Statements included as Section 4.4
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thereof and substituting therefore the financial statements being provided by
AHP to Buyer on the date hereof.
3. Section 11.1 (i) of the Agreement is hereby amended by deleting such section
and replacing it in its entirety as follows:
11.1(i) Notwithstanding any time or dollar limitations placed upon
Sellers' indemnification obligations elsewhere in this Agreement, which shall
not apply to this subparagraph (i), Sellers shall jointly and severally
indemnify, defend and hold harmless Buyer and the Companies and their respective
Affiliates, officers, directors, employees and controlling persons against any
and all Costs in connection with any lawsuits, actions or proceedings, pending,
as of the Closing Date against (x) any of the Companies or (y) any of the
Sellers or the Asset Transferor Entities relating to the Business, including
without limitation, all of such lawsuits, actions or proceedings listed in
Sections 4.11(a) and (b) of the Disclosure Schedule. The provisions of this
subparagraph 11.1(i) to the contrary notwithstanding, the Sellers shall be
liable for one-half (1/2) and Buyer and/or the Companies shall be liable for the
remaining one-half (1/2), of any Costs (excluding attorneys fees which shall be
soley at Sellers' expense) resulting from that claim listed first in Section
4.10(b)(i) of the Disclosure Schedule (hereafter the "First Listed Claim") that
are attributable to or are based on sales of products related to the First
Listed Claim by the Companies and/or the Buyer after Closing.
4. Section 11.2 of this Agreement is hereby amended by inserting at the end
thereof the following new subparagraph 11.2(iv):
(iv) The provisions of Paragraph 11.2(i) to the contrary notwithstanding,
the Companies and the Buyer agree that the Sellers may, in the defense of the
First Listed Claim, without the written consent of the Companies or Buyer
consent to the entry of a judgment and/or enter into a settlement agreement
which (as an exception to an unconditional release from all liability in respect
of such First Listed Claim otherwise required under Paragraph 11.2(i) secures
for the Companies the right to continue manufacture,
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use and sale of products to which such First Listed Claim relates, and provides
for payment of a continuing royalty for sales of such products as applicable in
an amount or rate deemed appropriate in the sole discretion of Sellers, which
royalty shall be paid one-half (1/2) by Sellers and one-half (1/2) by Buyer
and/or the Companies as required by subparagraph 11.1(i).
5. The parties acknowledge that the Closing Statement referenced in Section 3.5
and the Financial Statements referred to in Section 4.4 shall not include any
Assets owned by Cyanamid Medical Device Company ("CMDC") residing in Korea
although consideration for such Assets is included in the Purchase Price, prior
to adjustment. It is further agreed that Tyco shall have the right, to be
exercised by notice delivered to Sellers no later than March 31, 1998, to
receive at no additional cost any and all manufacturing equipment included in
the Assets and owned by CMDC. Further, Buyer shall acquire all inventory located
at CMDC's premises in Anyang, Korea as of March 31, 1998 for a purchase price
equal to Sellers' cost, subject to a credit to Buyer equivalent to Sellers' cost
of inventory at such location on the Closing Date. In addition, all Assets owned
by CMDC residing in Korea (other than manufacturing equipment and inventory)
will be transferred to Buyer at no additional cost.
6. 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, the First Amendment has been signed by each of the
parties hereto as of the date provided above.
AMERICAN CYANAMID COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice President
AMERICAN HOME PRODUCTS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice President
AHP SUBSIDIARY HOLDING
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice President
TYCO INTERNATIONAL (US) INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Sr. Vice President
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