Exhibit 2.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER (this "Amendment")
dated as of January 11, 2006, by and among XXXXXXX
& XXXXXXX, a New Jersey corporation ("Parent"),
SHELBY MERGER SUB, INC., an Indiana corporation and
a wholly owned Subsidiary of Parent ("Sub"), and
GUIDANT CORPORATION, an Indiana corporation (the
"Company").
WHEREAS Parent, Sub and the Company are parties to that
certain Amended and Restated Agreement and Plan of Merger dated as of November
14, 2005 (the "Merger Agreement");
WHEREAS, pursuant to Section 7.03 of the Merger Agreement,
Parent, Sub and the Company desire to amend the Merger Agreement as provided
in this Amendment; and
WHEREAS the Board of Directors of each of the Company and
Sub have adopted, and the Board of Directors of Parent has approved, this
Amendment;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Amendments to the Merger Agreement.
(a) The second "Whereas" clause of the Merger Agreement is hereby
amended and restated in its entirety as follows:
WHEREAS the Board of Directors of each of the Company and Sub has
adopted, and the Board of Directors of Parent has approved, this
Agreement and the merger of Sub with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in
this Agreement, whereby each issued and outstanding share of common
stock, without par value, of the Company ("Company Common Stock"),
other than shares of Company Common Stock directly owned by Parent,
Sub or the Company, will be converted into the right to receive (a) a
number of validly issued, fully paid and nonassessable shares of
common stock, par value $1.00 per share, of Parent ("Parent Common
Stock") and (b) $37.25 in cash, without interest;
(b) The first sentence of Section 2.01(c) of the Merger Agreement is
hereby amended and restated in its entirety as follows:
Subject to Section 2.02(e), each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (other than
shares to be canceled in accordance with Section 2.01(b)) shall be
converted into the right to receive (i) 0.493 (the "Exchange Ratio")
validly issued, fully paid and nonassessable shares of Parent Common
Stock (the "Stock Portion") and (ii) $37.25 in cash, without interest
(the "Cash Portion" and, together with the Stock Portion, the "Merger
Consideration").
(c) The first paragraph of Section 3.01 of the Merger Agreement shall
be amended as follows:
(i) the phrase "prior to November 14, 2004" shall be replaced
with the phrase "prior to January 11, 2006" and
(ii) the phrase "prior to the execution of this Agreement"
shall be amended by replacing the words "the execution of this Agreement"
with the words "November 14, 2005".
(d) The phrase "as of November 14, 2005" in the fourth sentence of
Section 3.01(d) of the Merger Agreement and in Section 3.01(t) of the Merger
Agreement shall be replaced, in each case, with the phrase "as of January 11,
2006".
(e) The phrase "a fee equal to $625,000,000" in Section 5.06(b) of
the Merger Agreement shall be replaced with the phrase "a fee equal to
$675,000,000".
(f) The phrase "after November 14, 2005" in Section 5.08 of the
Merger Agreement shall be replaced with the phrase "after January 11, 2006".
(g) Exhibit B to the Merger Agreement is hereby replaced in its
entirety by Exhibit A attached hereto.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to Parent and Sub as follows:
(i) The Company has been duly organized, and is validly
existing and in good standing under the Laws of the State of Indiana.
(ii) The Company has all requisite corporate power and
authority to execute and deliver this Amendment. The execution and
delivery of this Amendment by the Company have been duly authorized by
all necessary corporate action on the part of the Company and no other
corporate proceedings on the part of the Company are necessary to
authorize this Amendment. This Amendment has been duly executed and
delivered by the Company and, assuming the due authorization, execution
and delivery by each of the other parties hereto, constitutes a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or similar Laws affecting
the rights of creditors generally and the availability of equitable
remedies (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) Parent and Sub represent and warrant to the Company as follows:
(i) Each of Parent and Sub is a corporation duly organized,
validly existing and in good standing under the Laws of the jurisdiction
in which it is incorporated.
(ii) Each of Parent and Sub has all requisite corporate power
and authority to execute and deliver this Amendment. The execution and
delivery of this Amendment by Parent and Sub have been duly authorized by
all necessary corporate action on the part of Parent and Sub and no other
corporate proceedings on the part of Parent or Sub are necessary to
authorize this Amendment. This Amendment has been duly executed and
delivered by each of Parent and Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes a legal, valid and
binding obligation of Parent and Sub, enforceable against Parent and Sub
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or similar Laws affecting
the rights of creditors generally and the availability of equitable
remedies (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 3. Ratification of Merger Agreement. Except as otherwise
provided herein, all of the terms, covenants and other provisions of the
Merger Agreement are hereby ratified and confirmed and shall continue to be in
full force and effect in accordance with their respective terms. After the
date hereof, all references to the Merger Agreement shall refer to the Merger
Agreement as amended by this Amendment (it being understood that all
references to "the date hereof" or "the date of this Agreement" shall continue
to refer to December 15, 2004). Capitalized terms used but not defined in this
Amendment shall have the meanings assigned to them in the Merger Agreement.
SECTION 4. Counterparts. This Amendment may be executed in one or
more counterparts (including by facsimile), all of which shall be considered
one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the
other parties.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Amendment to be signed by their respective officers hereunto duly authorized,
all as of the date first written above.
XXXXXXX & XXXXXXX,
by
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & Chief Executive
Officer
SHELBY MERGER SUB, INC.,
by
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
GUIDANT CORPORATION,
by
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
EXHIBIT A
TO AMENDMENT NO. 1
EXHIBIT B
TO THE AMENDED AND RESTATED MERGER AGREEMENT
Form of Affiliate Letter
------------------------
Dear Sirs:
The undersigned, a holder of shares of common stock, without
par value ("Company Common Stock"), of Guidant Corporation, an Indiana
corporation (the "Company"), acknowledges that the undersigned may be deemed
an "affiliate" of the Company within the meaning of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), by the Securities and Exchange Commission (the "SEC"). Pursuant to the
terms of the Amended and Restated Agreement and Plan of Merger dated as of
November 14, 2005 (the "Merger Agreement"), among Xxxxxxx & Xxxxxxx, a New
Jersey corporation ("Parent"), Shelby Merger Sub, Inc., an Indiana corporation
and a wholly owned subsidiary of Parent ("Sub"), and the Company, as amended
by Amendment No. 1 thereto dated as of January 11, 2006, among the Company,
Parent and Sub, Sub will be merged with and into the Company (the "Merger"),
and in connection with the Merger, the undersigned is entitled to receive
0.493 shares of the common stock of Parent ("Parent Common Stock") and $37.25
in cash for each share of Company Common Stock, without interest.
If in fact the undersigned were an affiliate under the
Securities Act, the undersigned's ability to sell, assign or transfer the
shares of Parent Common Stock received by the undersigned in exchange for any
shares of Company Common Stock in connection with the Merger may be restricted
unless such transaction is registered under the Securities Act or an exemption
from such registration is available. The undersigned understands that such
exemptions are limited and the undersigned has obtained or will obtain advice
of counsel as to the nature and conditions of such exemptions, including
information with respect to the applicability to the sale of such securities
of Rules 144 and 145(d) promulgated under the Securities Act. The undersigned
understands that Parent will not be required to maintain the effectiveness of
any registration statement under the Securities Act for the purposes of resale
of Parent Common Stock by the undersigned.
The undersigned hereby represents to and covenants with
Parent that the undersigned will not sell, assign or transfer any of the
shares of Parent Common Stock received by the undersigned in exchange for
shares of Company Common Stock in connection with the Merger except (i)
pursuant to an effective registration statement under the Securities Act, (ii)
in conformity with the volume and other limitations of Rule 145 or (iii) in a
transaction which, in the opinion of counsel to the undersigned, such counsel
to be reasonably satisfactory to Parent and such opinion to be in form and
substance reasonably satisfactory to Parent, or as described in a "no-action"
or interpretive letter from the Staff of the SEC specifically issued with
respect to a transaction to be engaged in by the undersigned, is not required
to be registered under the Securities Act.
In the event of a sale or other disposition by the
undersigned of the shares of Parent Common Stock pursuant to Rule 145, the
undersigned will supply Parent with evidence of compliance with such Rule, in
the form of a letter in the form of Annex I hereto or the opinion of counsel
or no-action letter referred to above. The undersigned understands that Parent
may instruct its transfer agent to withhold the transfer of any shares of
Parent Common Stock disposed of by the undersigned, but that (provided such
transfer is not prohibited by any other provision of this letter agreement)
upon receipt of such evidence of compliance, Parent shall cause the transfer
agent to effectuate the transfer of the shares of Parent Common Stock sold as
indicated in such letter.
Parent covenants that it will take all such actions as may
be reasonably available to it to permit the sale or other disposition of the
shares of Parent Common Stock by the undersigned under Rule 145 in accordance
with the terms thereof.
The undersigned acknowledges and agrees that the legend set
forth below will be placed on certificates representing the shares of Parent
Common Stock received by the undersigned in connection with the Merger or held
by a transferee thereof, which legend will be removed by delivery of
substitute certificates (i) if the undersigned provides evidence of compliance
with Rule 145 to Parent, in the form of a letter in the form of Annex I
hereto, or (ii) upon receipt of an opinion in form and substance reasonably
satisfactory to Parent from counsel reasonably satisfactory to Parent to the
effect that such legend is no longer required for purposes of the Securities
Act.
There will be placed on the certificates for Parent Common
Stock issued to the undersigned in connection with the Merger, or any
substitutions therefor, a legend stating in substance:
"The shares represented by this certificate were issued
pursuant to a transaction to which Rule 145 promulgated under the
Securities Act of 1933 applies. The shares have not been acquired by
the holder with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of
1933. The shares may not be sold, pledged or otherwise transferred
except in accordance with Rule 145, pursuant to a Registration
Statement under the Securities Act of 1933 or in accordance with an
exemption from the registration requirements of the Securities Act of
1933."
The undersigned acknowledges that (i) the undersigned has
carefully read this letter and understands the requirements hereof and the
limitations imposed upon the distribution, sale, transfer or other disposition
of Parent Common Stock and (ii) the receipt by Parent of this letter is an
inducement to Parent's obligations to consummate the Merger.
Execution of this letter should not be considered an
admission on the part of the undersigned that the undersigned is an
"affiliate" of the Company as described in the first paragraph of this letter,
or as a waiver of any rights the undersigned may have to object to any claim
that the undersigned is such an affiliate on or after the date of this letter.
Very truly yours,
Dated:
ANNEX I
TO EXHIBIT B
[Name] [Date]
On , the undersigned sold the securities of Xxxxxxx &
Xxxxxxx ("Parent") described below in the space provided for that purpose (the
"Securities"). The Securities were received by the undersigned in connection
with the merger of Shelby Merger Sub, Inc., an Indiana corporation, with and
into Guidant Corporation, an Indiana corporation.
Based upon the most recent report or statement filed by
Parent with the Securities and Exchange Commission, the Securities sold by the
undersigned were within the prescribed limitations set forth in paragraph (e)
of Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
The undersigned hereby represents that the Securities were
sold in "brokers' transactions" within the meaning of Section 4(4) of the
Securities Act or in transactions directly with a "market maker" as that term
is defined in Section 3(a)(38) of the Securities Exchange Act of 1934, as
amended. The undersigned further represents that the undersigned has not
solicited or arranged for the solicitation of orders to buy the Securities,
and that the undersigned has not made any payment in connection with the offer
or sale of the Securities to any person other than to the broker who executed
the order in respect of such sale.
Very truly yours,
Dated:
