a5959163ex10_1.htm


    Exhibit
10.1

     

    Execution
Copy


     

    AMENDMENT
NO. 2 TO CREDIT AGREEMENT

     

    This
Amendment No. 2 to Credit Agreement, dated as of May __, 2009 (this “Amendment”), to the 364-Day
Bridge Term Loan Credit Agreement, dated as of March 12, 2009 (as the same may
be further amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”),
entered into among Pfizer Inc., a Delaware corporation (the “Borrower”), the institutions
from time to time party thereto as Lenders (the “Lenders”) and JPMorgan Chase
Bank, N.A., in its capacity as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”), is entered into among the Borrower, the Required Lenders and the
Administrative Agent.  Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Credit
Agreement.

     

    W i t n e
s s e t h:

     

    Whereas,
the Borrower has requested that the Credit Agreement be amended in certain
respects as set forth below;

     

    Whereas,
pursuant to Section 10.03 of the Credit Agreement, the Credit Agreement may,
under certain circumstances, be amended with the written consent of the Required
Lenders; and

     

    Whereas,
the Borrower and the Required Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Credit Agreement pursuant to the
provision of Section 10.03 of the Credit Agreement referred to in the preceding
recital as set forth below;

     

    Now,
Therefore, in
consideration of the premises and the covenants and obligations contained
herein, the sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:

     

    
      	
              Section
      1.

            	
              Amendments
      to the Credit Agreement

            


    

     

    The Credit
Agreement is, effective as of the Effective Date (as defined below), hereby
amended as follows:

     

    (a)           The
following definitions in Section 1.01 are amended and
restated in their entirety to read as follows:

     

    “Certain Significant
Items” shall mean substantive, unusual items that are evaluated on an
individual basis and may represent items that are not part of the Borrower’s
ongoing business; items that, either as a result of their nature or size, the
Borrower would not expect to occur as part of its normal business on a regular
basis; items that would be non-recurring; or items that relate to products it no
longer sells. Certain Significant Items shall include, but not be limited to, a
major non-acquisition-related restructuring charge and associated implementation
costs for a program which is specific in nature with a defined term, such as
those related to the Borrower’s cost-reduction initiatives; charges related to
certain sales or disposals of products or facilities that do not qualify as
discontinued operations as defined by U.S. GAAP; amounts associated with
transition service agreements in support of discontinued operations after sale;
certain intangible asset impairments; adjustments related to the resolution of
certain tax positions; the impact of adopting certain significant, event-driven
tax legislation, such as adjustments associated with charges attributable to the
repatriation of foreign earnings in accordance with the American Jobs Creation
Act of 2004; or possible charges related to legal matters. Normal, ongoing
defense costs of the Borrower or settlements and accruals on legal matters made
in the normal course of its business would not be considered Certain Significant
Items.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “EBITDA” shall mean,
with respect to any Person, for any period, Consolidated Net Income attributable
to such Person for such period plus (a) the sum of, in each case to the extent
included in the calculation of such Consolidated Net Income but without
duplication,

     

    (i)           federal,
state, local or foreign income Taxes;

     

    
      	
               
      

            	
              (ii)

            	
              depreciation
      or amortization expenses;

            


    

     

    (iii)           interest
expenses (net of interest income);

     

    
      	
               
      

            	
              (iv)

            	
              fees
      and expenses related to the Acquisition (as such fees and expenses are
      disclosed in the Borrower’s most recent financial statements filed with
      the SEC);

            


    

     

    (v)           extraordinary,
non-recurring or unusual losses or expenses (including costs and expenses
related to the Borrower’s ongoing cost-reduction initiatives including the cost
reduction initiative program announced January 2009, or a substantially similar
cost reduction initiative program created in conjunction with the Acquisition,
including implementation costs and restructuring costs not to exceed
$7,500,000,000 in the aggregate during the term of this Agreement);

     

    (vi)           Purchase
Accounting Adjustments, less Purchase Accounting Adjustments related to
“Intangible amortization and other,” as disclosed in the Borrower’s financial
statements filed as an exhibit to its Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as applicable;

     

    (vii)           discontinued
operations to the extent segregated in the Consolidated statements of income,
stockholders’ equity and cash flows of the Borrower;

     

    (viii)           Identified
Legal Settlements; and

     

    (ix)           non-cash
Certain Significant Items not included above in clauses (i) through (viii) and
cash Certain Significant Items not included above in clauses (i) through (viii)
to the extent such items do not exceed $1,000,000,000 in the aggregate for any
such period,

     

    in each
case, for such period, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, the sum of all income or gains attributed to such items for such period;
provided that
(1) if the Acquisition or a Material Transaction has occurred during such
period, EBITDA shall be determined for such period on a pro forma basis as if
such Material Transaction or the Acquisition has occurred on the first day of
such period and (2) if the cash consideration for the Acquisition is financed
with proceeds of Permitted Repurchase Debt of the type described in clause (b)
of the definition thereof incurred in the period prior to the consummation of
the Acquisition and the Acquisition has occurred within ten days after the end
of such prior period, EBITDA shall be determined for such prior period on a pro
forma basis as if the Acquisition had occurred on the first day of such prior
period.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)           The
following definitions are added to Section 1.01 and each such
defined term is to appear in its appropriate place in alphabetical order as
follows:

     

    “Identified Legal
Settlements” shall mean (i) up to $2,313,000,000 in charges resulting
from an agreement in principle with the U.S. Department of Justice to resolve
the previously reported investigation regarding allegations of past off-label
promotional practices concerning Bextra, as well as certain other open
investigations, as disclosed in Footnote F in the Borrower’s 2008 Financial
Report filed as an exhibit to its Form 10-K (ii) up to $936,000,000 related to
the agreements and agreements in principle to resolve certain NSAID litigation
and claims, as disclosed in Footnote F in the Borrower’s 2008 Financial Report
filed as an exhibit to its Form 10-K, and (iii) on or after the Funding Date,
cash disbursements of up to $500,000,000 by Wyeth relating to litigation related
to the diet drug commonly referred
to as “fen-phen”, as disclosed in Note 15
(“Contingencies and Commitments”) in its 2008 Financial Report filed as an
exhibit to its Form 10-K.

    


    “Purchase Accounting
Adjustments” shall mean all non-cash purchase accounting adjustments and
charges, including charges for purchased in-process research and development,
the incremental charge to cost of sales from the sale of acquired inventory that
was written up to fair value and the incremental charges related to the
amortization of finite-lived intangible assets for the increase to fair
value.

    (c)           Schedule
3 of Exhibit G (Compliance Certificate) is hereby amended and restated in its
entirety in the form attached as Exhibit A hereto.

    
 

    
      	
              Section
      2.

            	
              Conditions
      Precedent to the Effectiveness of this
Amendment

            


    

     

    This Amendment shall become effective
(the “Effective Date”) upon satisfaction of the following conditions
precedent:

    


    (a)           the
Administrative Agent shall have received this Amendment, duly executed by the
Borrower and the Required Lenders;

     

    (b)           the
conditions to the effectiveness of Amendment No. 1 to the Revolving Credit
Facility, dated as of the date hereof, shall have been satisfied;

     

    (c)           each
of the representations and warranties of the Borrower contained in Sections
4.01, 4.02, 4.04(b), 4.05, 4.08 and 4.13 of the Credit Agreement are true and
correct in all material respects on and as of the Effective Date, in each case
as if made on and as of such date and except to the extent that such
representations and warranties specifically relate to a specific date, in which
case such representations and warranties shall be true and correct in all
material respects as of such specific date; provided, however, that references
therein to the “Agreement” shall be deemed to refer to the Credit Agreement as
amended hereby and after giving effect to the consents and waivers set forth
herein; and

     

    (d)          
no Default or Event of Default has occurred and is continuing.

    


    
      	
              Section
      3.

            	
              Reference
      to the Effect on the Loan Documents

            


    

     

    (a)           As
of the date hereof, each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein,” or words of like import, and each reference in
the other Loan Documents to the Credit Agreement (including, without limitation,
by means of words like “thereunder”, “thereof” and words of like import), shall
mean and be a reference to the Credit Agreement as modified hereby, and this
Amendment and the Credit Agreement shall be read together and construed as a
single instrument.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (b)           Except
as expressly modified hereby, all of the terms and provisions of the Credit
Agreement and all other Loan Documents are and shall remain in full force and
effect and are hereby ratified and confirmed.

     

    (c)           The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Lenders or the Administrative Agent under any of the Loan Documents, nor
constitute a waiver or amendment of any other provision of any of the Loan
Documents or for any purpose except as expressly set forth herein.

     

    (d)           This
Amendment shall be deemed a Loan Document.

     

    
      	
              Section
      4.

            	
              Execution
      in Counterparts

            


    

     

    This
Amendment may be executed in any number of counterparts and by different parties
in separate counterpart (including by facsimile and electronic mail), each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.  Signature pages
may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached to the same
document.  Delivery of an executed counterpart by telecopy or
electronic mail shall be effective as delivery of a manually executed
counterpart of this Amendment.

     

    
      	
              Section
      5.

            	
              Representations
      and Warranties

            


    

     

    The Borrower hereby represents and
warrants to the Administrative Agent and each Lender as follows:

     

    (a)           this
Amendment has been duly authorized, executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms and the Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity
principles;

     

    (b)           each
of the representations and warranties of the Borrower contained in Sections
4.01, 4.02, 4.04(b), 4.05, 4.08 and 4.13 are true and correct in all material
respects on and as of the Effective Date, in each case as if made on and as of
such date and except to the extent that such representations and warranties
specifically relate to a specific date, in which case such representations and
warranties shall be true and correct in all material respects as of such
specific date; provided, however, that references therein to the “Credit
Agreement” shall be deemed to refer to the Credit Agreement as amended hereby
and after giving effect to the consents and waivers set forth herein;
and

     

    (c)  no Default or Event of
Default has occurred and is continuing.

     

    
      	
              Section
      6.

            	
              Governing
      Law

            


    

     

    This
Amendment shall be governed by and construed in accordance with the law of the
State of New York.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              Section
      7.

            	
              Section
      Titles

            


    

     

    The
Section titles contained in this Amendment are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto.

     

    
      	
              Section
      8.

            	
              Notices

            


    

     

    All
communications and notices hereunder shall be given as provided in the Credit
Agreement.

     

    
      	
              Section
      9.

            	
              Severability

            


    

     

    The fact
that any term or provision of this Agreement is held invalid, illegal or
unenforceable as to any person in any situation in any jurisdiction shall not
affect the validity, enforceability or legality of the remaining terms or
provisions hereof or the validity, enforceability or legality of such offending
term or provision in any other situation or jurisdiction or as applied to any
person.

     

    
      	
              Section
      10.

            	
              Successors

            


    

     

    The terms
of this Amendment shall be binding upon, and shall inure to the benefit of, the
Lenders, the other parties hereto and their respective successors and
assigns.

     

    
      	
              Section
      11.

            	
              Waiver
      of Jury Trial

            


    

     

    Each of
the parties hereto irrevocably waives trial by jury in any action or proceeding
with respect to this Amendment.

     

    [Signature
Pages Follow]

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    In Witness
Whereof, the
parties hereto have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first written
above.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	 	
                                    Pfizer
      Inc.

                                  
	 	
                                    as
      Borrower

                                  
	 	 
	 	
                                    By:                                                           
      

                                  
	 	
                                    Name:
      Richard A Passov

                                  
	 	
                                    Title:  Senior
      Vice President &
Treasurer

                                  


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              JPMORGAN
      CHASE BANK, N.A.,

            
	 	
              as
      Administrative Agent

            
	 	 
	 	
              By:                                                           
      

            
	 	
              Name:
      

            
	 	
              Title:  

            


    

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              [NAME
      OF LENDER]

            
	 	
               

            
	 	 
	 	
              By:                                                           
      

            
	 	
              Name:
      

            
	 	
              Title: 

            


    

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    EXHIBIT
A

     

    For
the Quarter/Year ended on the Financial Statement Date

     

    SCHEDULE
3

     

    to the Compliance
Certificate

     

    ($ in
000s)

     

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                EBITDA

                              	 	 
      
	
                                A. 
      Consolidated Net Income attributable to the Company for the last four
      fiscal quarter period ended on the Financial Statement Date (see
      definition of “EBITDA”):

                              	 	 
      
	
                                1. 
      Net income (or loss) attributable to the Company for such period, as
      reflected in the Consolidated statements of income of the Company most
      recently filed with the SEC (see definition of  “Consolidated
      Net Income”):

                              	 	
                                $                               

                              
	
                                2. 
      Net income of any other Person not Consolidated into the net income of the
      Company in which the Company or a Subsidiary has a joint interest with a
      third party to the extent paid to the Company or a Subsidiary as dividends
      or distributions (see definition of “Consolidated Net Income” –
      proviso):

                              	 	
                                $                               

                              
	
                                3. 
      Consolidated Net Income (Line A.1 plus Line A.2):

                              	 	
                                $                               

                              
	
                                B. 
      Addbacks to Consolidated Net Income (in each case to the extent included
      in the calculation of such Consolidated Net Income for such period but
      without duplication) (see definition of “EBITDA” – clause
      (a)):

                              	 	 
      
	
                                1. 
      Federal, state, local or foreign income taxes (see definition of “EBITDA”
      – clause (a)(i)):

                              	 	
                                $                               

                              
	
                                2. 
      Depreciation or amortization expenses (see definition of “EBITDA” – clause
      (a)(ii)):

                              	 	
                                $                               

                              
	
                                3. 
      Interest expenses (net of interest income) (see definition of “EBITDA” –
      clause (a)(iii)):

                              	 	
                                $                               

                              
	
                                4. 
      Fees and expenses related to the Acquisition (as such fees and expenses
      are disclosed in the Borrower’s most recent financial statements filed
      with the SEC) (see definition of “EBITDA” – clause
      (a)(iv))

                              	 	
                                $                               

                              


                      

                    

                  

                

              

            

          

           

          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

           

          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	
                                        5.Extraordinary,
      non-recurring or unusual losses or expenses (see definition of “EBITDA” –
      clause (a)(v)):

                                        a)Occurring
      prior to December 31, 2008

                                        b)Occurring after January 1,
      2009

                                      	 	
                                        a)$___________

                                        b)$___________

                                      
	
                                        6.Purchase
      Accounting Adjustments, less Purchase Accounting Adjustments related to “Intangible amortization and other,” as disclosed in the
      Company’s financial statements filed as an exhibit to its Annual Report on
      Form 10-K or Quarterly Report on Form 10-Q, as applicable 1 (see definition of
      “EBITDA” – clause (a)(vi)):

                                      	 	
                                        $                               

                                      
	
                                        7.Discontinued
      operations to the extent segregated in the Consolidated statements of
      income, stockholders’ equity and cash flows of the Company (see definition
      of “EBITDA” – clause (a)(vii)):

                                      	 	
                                        $                               

                                      
	
                                        8.Identified
      Legal Settlements (see definition of “EBITDA” – clause
      (a)(viii)):

                                      	 	
                                        $                               

                                      
	
                                        9.

                                        a)Non-cash
      Certain Significant Items not included in clauses B(1) through
      B(8)

                                        b)Cash
      Certain Significant Items not included in clauses B(1) through B(8) to the
      extent such items do not exceed $1,000,000,000 in the aggregate for any
      such period (see definition of “EBITDA” – clause (a)(ix)):

                                      	 	
                                        a)$_________

                                         

                                        b)$_________

                                         

                                      
	
                                        10.Total
      permitted addbacks (sum of Lines B.1 through B.9):

                                      	 	
                                        $                               

                                      
	
                                        C.Required
      deductions from Consolidated Net Income (without duplication and to the
      extent included in the calculation of such Consolidated Net Income for
      such period) for any income or gains attributed to items in lines B1.
      through B.9 above (see definition of “EBITDA” – clause
    (b)):

                                      	 	 
      
	
                                        1.[Specify
      item:]

                                      	 	
                                        $                               

                                      
	
                                        2.[Specify
      item:]

                                      	 	
                                        $                               

                                      
	
                                        3.Total
      required deductions (sum of Lines C.1 through C.[__]):

                                      	 	
                                        $                               

                                      
	
                                        D.EBITDA
      for the Company for the last four fiscal quarter period ending on
      Financial Statement Date (Line A.3 plus Line B.9 minus Line
      [C.3]):

                                      	 	
                                        $                               

                                      


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

    

     

    Note:  Line
items in this Compliance Certificate have been short handed for ease of
reference.  In case of any conflict between the provisions of this
Compliance Certificate and the provisions of the Credit Agreement, the Credit
Agreement shall govern.

     

    
      
        
          
            
              
                
                  
                    	
                            Leverage Ratio

                          	 	 
      
	
                            A.Consolidated
      Specified Debt of the Company and its Subsidiaries outstanding as of the
      Financial Statement Date (see definition of “Leverage Ratio” – clause
      (a)):

                          	 	 
      
	
                            1.Long
      term debt on the Financial Statement Date of the Company and its
      Subsidiaries consolidated in accordance with GAAP (as reflected in the
      Consolidated Balance Sheet of the Company on the Financial Statement Date)
      (see definition of “Specified Debt” and “Consolidated”)

                          	 	
                            $                               

                          
	
                            2.Debt
      maturing within one year on the Financial Statement Date of the Company
      and its Subsidiaries consolidated in accordance with GAAP (as reflected in
      the Consolidated Balance Sheet of the Company on the Financial Statement
      Date) (see definition of “Specified Debt” and
    “Consolidated”)

                          	 	
                            $                               

                          
	
                            3.Consolidated
      Specified Debt (sum of lines Line A.1 and A.2)

                          	 	
                            $                               

                          
	
                            B.EBITDA
      for the Company for the last four fiscal quarter period ending on
      Financial Statement Date2 (see definition of “Leverage Ratio” –
      clause (b)) (Line D of EBITDA above):

                          	 	
                            $                               

                          
	
                            C.[Leverage
      Ratio (Line A.3 divided by Line B)]3:

                          	 	
                            ___
      to _1__

                          
	
                            Maximum
      Permitted under Section 5:

                          	 	 
      
	
                            Period

                          	 	
                            Ratio

                          
	
                            Until
      the Commitments have expired or been terminated and the principal of and
      interest on each Loan and all fees payable under the Credit Agreement have
      been paid in full

                          	 	
                             2.75
      to
1

                          


                  

                

              

            

          

        

      

    

    


    Note:  Line
items in this Compliance Certificate have been short handed for ease of
reference.  In case of any conflict between the provisions of this
Compliance Certificate and the provisions of the Credit Agreement, the Credit
Agreement shall govern.

     

    

      

    

      
      1
Including future write-offs in process research and development capitalized as
part of such Acquisition. 

    

    
      2 If the Acquisition or a Material
Transaction has occurred during such period, EBITDA shall be determined for such
period on a pro forma basis as if such Material Transaction or the Acquisition
has occurred on the first day of such period.

    

    
      3 Only if
required under Section 5.