Re: First Amendment to the Tender and Support Agreements
Exhibit 99(d)(5)
EXECUTION VERSION
December 6, 2017
Postfach
XX-0000 Xxxxx
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) Xxxxxxx Xxxxx, (ii) Xxxxxx Ber, (iii) Xxxxxxx Xxxxxxxxxx, (iv) CC & Soci S.r.l., (v) Xxxxxxxxx Xxxxxx Xxxxxx, (vi) Xxxxx Xxxxxxx, (vii) Xxxxxx Xxxxxx, (viii) Xxxxx Xxxxxx, (ix) Xxxxxxxxx Xxxxx, (x) Xxxxxxxx Xxxxx and (xi) Xxxxxxxx Xxxxxxxxxx (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 Xxxxxxx Xxxxx hereby agree to amend the Tender and Support Agreement by and between Parent and Xxxxxxx Xxxxx (the “Xxxxx Tender and Support Agreement”) as set forth below:
1. Section 5(c) of the Xxxxx 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 Xxxxx 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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XXXXXXX XXXXX | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXX BER | ||
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By: |
/s/ Xxxxxx Ber | |
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Name: |
Xxxxxx Ber |
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[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXXX XXXXXXXXXX | ||
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By: |
/s/ Xxxxxxx Xxxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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CC & SOCI S.R.L. | ||
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By: |
/s/ CC & Soci S.r.l. | |
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Name: |
CC & Soci S.r.l. |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXXXXX XXXXXX XXXXXX | ||
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By: |
/s/ Xxxxxxxxx Xxxxxx Xxxxxx | |
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Name: |
Xxxxxxxxx Xxxxxx Xxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXX XXXXXXX | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXX XXXXXX | ||
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By: |
/s/ Xxxxxx Xxxxxx | |
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Name: |
Xxxxxx Xxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXX XXXXXX | ||
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By: |
/s/ Xxxxx Xxxxxx | |
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Name: |
Xxxxx Xxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXXXXX XXXXX | ||
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By: |
/s/ Xxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxx Xxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXXXX XXXXX | ||
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By: |
/s/ Xxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxx Xxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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XXXXXXXX XXXXXXXXXX | ||
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By: |
/s/ Xxxxxxxx Xxxxxxxxxx | |
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Name: |
Xxxxxxxx Xxxxxxxxxx |
[Signature Page to First Amendment to the Tender and Support Agreement]
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ACKNOWLEDGED AND AGREED TO: |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
As Attorney |
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By: |
/s/ Xxxxx Xxxxxx |
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Name: |
Xxxxx Xxxxxx |
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Title: |
As Attorney |
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cc: |
Shearman & Sterling LLP |
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000 Xxxxxxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attn: |
Xxxxxx X. Xxxxx |
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Xxxxxx Xxxxxxxxxx |
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Xxxxxxxx & Sterling LLP |
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0 Xxx Xxxxxxx Xxxxxx |
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00000 Xxxxx, Xxxxxx |
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Attn: |
Guillaume Isautier |
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[Signature Page to First Amendment to the Tender and Support Agreement]
