Re: First Amendment to the Tender and Support Agreements
Exhibit 99.(e)(5)
EXECUTION VERSION
December 6, 2017
Novartis AG
Postfach
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Switzerland
Attention: Head of M&A Legal
Re: First Amendment to the Tender and Support Agreements
Dear Ladies and Gentlemen:
Reference is hereby made to the following Tender and Support Agreements, dated as of October 28, 2017 (each as amended, restated, supplemented or otherwise modified from time to time, a “Tender and Support Agreement,” and collectively, the “Tender and Support Agreements”), by and between Novartis AG (“Parent”) and (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇, (ii) ▇▇▇▇▇▇ Ber, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (iv) CC & Soci S.r.l., (v) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, (vi) ▇▇▇▇▇ ▇▇▇▇▇▇▇, (vii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, (viii) ▇▇▇▇▇ ▇▇▇▇▇▇, (ix) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (x) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (xi) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (each of the persons in the foregoing clauses (i) through (xi), a “Shareholder,” and collectively, the “Shareholders”). Capitalized terms used but not defined in this letter (this “Letter Agreement”) shall have the respective meanings given to them in the respective Tender and Support Agreement.
Parent and each of the Shareholders hereby agree to amend each Tender and Support Agreement as set forth below:
1. Notwithstanding Section 3(a) of the Tender and Support Agreements, Parent and Shareholder hereby agree that Shareholder shall tender the Tender Shares, or shall cause such Shareholder’s Tender Shares to be tendered, into the Offer pursuant to the terms of the Offer no later than January 10, 2018.
Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby agree to amend the Tender and Support Agreement by and between Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “▇▇▇▇▇ Tender and Support Agreement”) as set forth below:
1. Section 5(c) of the ▇▇▇▇▇ Tender and Support Agreement is amended by deleting it in its entirety and adding following:
“(c) Title to Shares. As of November 29, 2017, Shareholder Owns, free and clear of any Lien, and has good title to, the number of outstanding Company Shares and ADSs and the equity-based instruments giving the right to acquire Company Shares set forth in Exhibit A. With respect to Subject Securities not held of record by Shareholder, or for which Shareholder is not the beneficial owner, as of November 29, 2017, Shareholder will Own, immediately prior to the Offer Acceptance Time, free and clear of any Lien, and will have, as at such time, good title to, such Subject Securities. Except as set forth in Exhibit A, Shareholder does not Own, as of November 29, 2017, any share of capital stock or options to purchase or rights to subscribe for or otherwise acquire any securities
of the Company and has no other interest in with respect to any securities of the Company.”
2. Exhibit A of the ▇▇▇▇▇ Tender and Support Agreement is amended by deleting “2,300,000 ADSs Owned as of the date of this Agreement” and adding “2,293,050 ADSs Owned as of November 29, 2017”.
Each of the undersigned hereby agrees that, as hereby modified, all terms and provisions of the applicable Tender and Support Agreement remain in full force and effect, and each of the Tender and Support Agreements is hereby ratified and confirmed in all respects. Nothing contained in this Letter Agreement shall in any way impair the validity or enforceability of the applicable Tender and Support Agreement, or (except to the extent expressly set forth herein) amend, alter, waive, annul, vary, affect, or impair any provisions, conditions, or covenants contained therein or any rights, powers, or remedies granted therein.
This Letter Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Without limiting the applicability of any other provision of the applicable Tender and Support Agreement, the terms of Section 9 (other than Section 9(a)) of the applicable Tender and Support Agreement are incorporated herein, mutatis mutandis, and shall apply to and govern this Letter Agreement.
[Signature pages follow]
This Letter Agreement shall be effective as of the date first set forth above.
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Very truly yours, | ||
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▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
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Name: |
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[Signature Page to First Amendment to the Tender and Support Agreement]
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▇▇▇▇▇▇ BER | ||
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By: |
/s/ ▇▇▇▇▇▇ Ber | |
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Name: |
▇▇▇▇▇▇ Ber |
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[Signature Page to First Amendment to the Tender and Support Agreement]
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
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Name: |
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[Signature Page to First Amendment to the Tender and Support Agreement]
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CC & SOCI S.R.L. | ||
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/s/ CC & Soci S.r.l. | |
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CC & Soci S.r.l. |
[Signature Page to First Amendment to the Tender and Support Agreement]
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
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[Signature Page to First Amendment to the Tender and Support Agreement]
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
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[Signature Page to First Amendment to the Tender and Support Agreement]
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ACKNOWLEDGED AND AGREED TO: |
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NOVARTIS AG |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇▇▇▇ |
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Title: |
As Attorney |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
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Name: |
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As Attorney |
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cc: |
Shearman & Sterling LLP |
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
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Attn: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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▇▇▇▇▇▇▇▇ & Sterling LLP |
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▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
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Attn: |
Guillaume Isautier |
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[Signature Page to First Amendment to the Tender and Support Agreement]