AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
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This AMENDMENT NO. 1 (this "AMENDMENT"), dated as of April 3, 2006, to the
Agreement and Plan of Merger, dated as of October 30, 2005 (the "MERGER
AGREEMENT"), by and among Novartis Corporation, a New York corporation and an
indirect wholly owned subsidiary of Novartis AG ("Parent"), a Swiss corporation
("NOVARTIS CORP"), Novartis Biotech Partnership, Inc., a Delaware corporation
and an indirect wholly owned subsidiary of Parent AG ("MERGER Sub"), Chiron
Corporation, a Delaware corporation ("CHIRON"), and for purposes of Section
10.14 thereof only, Parent.
WHEREAS, Section 10.2 of the Merger Agreement provides for the amendment of
the Merger Agreement in accordance with the terms set forth therein; and
WHEREAS, the parties hereto desire to amend the Merger Agreement as set
forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS; REFERENCES. Unless otherwise specifically defined
herein, each term used herein shall have the meaning assigned to such term in
the Merger Agreement. Each reference to "hereof," "herein," "hereunder,"
"hereby" and "this Agreement" shall, from and after the date hereof, refer to
the Merger Agreement as amended by this Amendment.
ARTICLE II
AMENDMENTS TO MERGER AGREEMENT
Section 2.1 AMENDMENTS TO MERGER AGREEMENT. The Merger Agreement shall be
amended as follows:
(a) SECTION 4.1(a) of the Merger Agreement is hereby amended by deleting
clause (i) in its entirety and inserting the following in its place:
"(i) owned by Merger Sub or any other U.S. Subsidiary of Parent"
(b) SECTION 4.1(a) is hereby further amended by deleting "$45.00" and
replacing such amount with "$48.00".
(c) SECTION 4.1(b) of the Merger Agreement is hereby amended by deleting
the words "by any of the Novartis Companies" and replacing such words
with:
"by Merger Sub or any other U.S. Subsidiary of Parent"
(d) SECTION 5.3(b) of the Merger Agreement is hereby amended by inserting
the following sentence at the end of such Section:
"For purposes of this Agreement, "Novartis Companies" shall mean,
collectively, Parent and any direct or indirect Subsidiary of Parent."
(e) SECTION 7.2(a) is hereby amended by deleting the word "conditions"
from clause (y) of the second sentence of such Section and replacing
such word with "condition" and by replacing the word "have" with the
word "has.
(f) SECTION 7.3(a) is hereby amended by deleting the word "conditions"
from the first sentence of such Section and replacing such word with
"condition".
(g) SECTION 8.1(a) if the Merger Agreement is hereby amended by deleting
such Section in its entirety and by inserting the following in its
place:
"(a) STOCKHOLDER APPROVAL. This Agreement shall have been duly adopted
by holders of shares of Common Stock constituting the Company
Requisite Vote in accordance with applicable Law and the Company's
certificate of incorporation and by-laws."
(h) Annex A is hereby amended to reflect the change in location of the
defined term "Novartis Companies" from Section 4.1(a) to Section
5.3(b).
(i) The parties agree that the Stockholders Meeting shall be postponed or
adjourned until April 19, 2006, or such other date as the parties may
agree.
ARTICLE III
MISCELLANEOUS
Section 3.1 NO FURTHER AMENDMENT. Except as expressly amended hereby, the
Merger Agreement is in all respects ratified and confirmed and all the terms,
conditions, and provisions thereof shall remain in full force and effect. This
Amendment is limited precisely as written and
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shall not be deemed to be an amendment to any other term or condition of the
Merger Agreement or any of the documents referred to therein.
Section 3.2 EFFECT OF AMENDMENT. This Amendment shall form a part of the
Merger Agreement for all purposes, and each party thereto and hereto shall be
bound hereby. From and after the execution of this Amendment by the parties
hereto, any reference to the Merger Agreement shall be deemed a reference to the
Merger Agreement as amended hereby.
Section 3.3 GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws.
Section 3.4 SEPARABILITY CLAUSE. In case any one or more of the provisions
contained in this Amendment should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected, impaired, prejudiced or
disturbed thereby.
Section 3.5 COUNTERPARTS. This Amendment may be simultaneously executed in
several counterparts, and all such counterparts executed and delivered, each as
an original, shall constitute one and the same instrument.
Section 3.6 HEADINGS. The descriptive headings of the several Articles of
this Amendment were formulated, used and inserted in this Amendment for
convenience only and shall not be deemed to affect the meaning or construction
of any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Novartis Corp, Merger Sub, and Chiron have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
NOVARTIS CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: General Counsel
NOVARTIS BIOTECH PARTNERSHIP. INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CHIRON CORPORATION
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Chief Executive Officer
SIGNATURE PAGE TO AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
