AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 (this "Amendment") to the
Agreement and Plan of Merger, dated as of June 11, 2008 (the "Merger Agreement"),
by and among Invitrogen Corporation, a Delaware corporation ("Parent"), Atom
Acquisition, LLC, a Delaware limited liability company and a direct wholly owned
subsidiary of Parent ("Merger Sub"), and
Applied Biosystems Inc. (formerly known as Applera Corporation), a Delaware
corporation (the "Company"), is made
and entered into by Parent, Merger Sub and the Company as of the 9th day of
September, 2008.
WHEREAS,
pursuant to the Merger Agreement, the Company will be merged with and into
Merger Sub, with Merger Sub continuing as the surviving company and a wholly
owned subsidiary of Parent;
WHEREAS,
pursuant to Section 7.4 of the Merger Agreement, the Merger Agreement may be
amended or supplemented in writing by the Company and Parent; and
WHEREAS,
the parties 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 adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto do hereby agree as follows:
Section
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger
Agreement.
Section
2. Amendment to Section
2.4(a). Section 2.4(a) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
"Section
2.4 Treatment of Equity
Compensation Grants.
(a) Stock
Options. At the Effective Time, each outstanding unexpired and
unexercised option to purchase or acquire a share of Company Common Stock under
the Company Equity Plans (each, a "Company Stock
Option") shall vest and become fully exercisable, whether or not then
vested or subject to any performance condition that has not been
satisfied. At the Effective Time, each Company Stock Option shall be
converted into an option to purchase the number of shares of Parent Common Stock
equal to the product of (x) the Stock Option Conversion Fraction (as defined in
this Section 2.4(a)) multiplied by (y) the number of shares of Company Common
Stock which could have been obtained prior to the Effective Time upon the
exercise of each such Company Stock Option (rounded down to the nearest whole
share), at an exercise price per share (rounded up to the nearest cent) equal to
the exercise
price
for each such share of Company Common Stock subject to a Company Stock Option
divided by the Stock Option Conversion Fraction, and all references to the
Company in each such option shall be deemed to refer to Parent, where
appropriate. The other terms of such Company Stock Options shall
continue to apply in accordance with their terms, including pursuant to such
preexisting terms and conditions, provided, however, that Parent
shall treat each Company Stock Option as fully vested and
exercisable. Each Company Stock Option converted pursuant to the
terms of this Section 2.4(a) shall be referred to as a "Parent Exchange
Option." In connection with the issuance of Parent Exchange
Options, Parent shall reserve for issuance the number of shares of Parent Common
Stock that will become subject to Parent Exchange Options pursuant to this
Section 2.4(a). As promptly as reasonably practicable after the
Effective Time, Parent shall issue to each holder of an outstanding Parent
Exchange Option a document evidencing the foregoing assumption by
Parent. Parent shall file a registration statement on Form S-8 (or
any successor or other appropriate form that Parent is eligible to use) under
the Securities Act on the Closing Date with respect to the shares of Parent
Common Stock subject to Parent Exchange Options and shall use its commercially
reasonable efforts to cause such registration statement to remain effective
until the exercise or expiration of the Parent Exchange Options. For
purposes of this Section 2.4(a), the "Stock Option Conversion
Fraction" shall mean (i) if the Twenty-Day VWAP (as defined in Section
2.1(a)) is $46 per share of Parent Common Stock or greater, 0.8261 or (ii) if
the Twenty-Day VWAP is less than $46 per share of Parent Common Stock, a
fraction, (x) the numerator of which is $38 and (y) the denominator of which is
the greater of (A) $43.69 and (B) the Twenty-Day VWAP, in each case, subject to
adjustment along with the Exchange Ratio in accordance with Section
2.1(d).
The
number of shares subject to any Parent Exchange Option and the exercise price
per share of such Parent Exchange Option shall be determined in a manner which
would not result in the conversion of Company Stock Options into Parent Exchange
Options being treated as a new grant of stock options under Section 409A of the
Code, and the Company and Parent shall agree upon any adjustments to this
Section 2.4(a) necessary to avoid such new grant of stock options."
Section
3. Amendment to Section
5.7(f). Section 5.7(f) of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
"(f) Parent shall honor in accordance with their terms,
and, on and after the Effective Time, shall make all payments pursuant to,
without offset, deduction, counterclaim, interruption, or deferment, (i) the
Company Performance Unit Bonus Plan, to the extent not paid by the Company at or
prior to the Effective Time, (ii) the Company's Incentive Compensation Program
for the Company's fiscal year ended June 30, 2008 (the "2008 ICP"),
consistent with past practice, to the extent not paid by the Company prior to
the Effective Time; and (iii) the Company's Incentive Compensation Program for
the fiscal year
ending
June 30, 2009 (the "2009 ICP"),
consistent with past practice; provided that, in the case of
clause (iii) of this Section 5.7(f):
(1) prior
to the Effective Time, the Company Board, or the Company's Management Resources
Committee (the "MRC"), shall adopt
the 2009 ICP consistent with this Section 5.7(f). The Board or the
MRC, as applicable, shall act in good faith and consistent with past practice to
determine the 2009 ICP Company performance targets based on the terms of the
2009 ICP and this Section 5.7(f) (the "2009 Performance
Targets");
(2) the
2009 ICP shall provide that each participant who is employed by the Company at
the Effective Time (the "Employee
Participant") shall be entitled to receive an amount of incentive
compensation equal to the following amount: (A) such Employee Participant's
Eligible Earnings (as defined in clause (4) below), multiplied by (B) (I) such
Employee Participant's incentive target percentage (which shall be
the same percentage as the percentage applicable to other employees in the
Employee Participant's grade, it being understood and agreed that the percentage
applicable to each grade shall be the same as the percentage for such grade used
for the 2008 ICP and the percentage for each Employee Participant shall be the
same as under the 2008 ICP unless the Employee Participant has changed grades
for purposes of the 2009 ICP) (the "Incentive
Percentage") multiplied by (II) such Employee Participant's applicable
business modifier which shall be established, by the Company or the MRC, as
applicable, as a percentage ranging from 0% to 150% (with 100% as the applicable
modifier for performance equal to the 2009 ICP Performance Targets; provided, however, that a
modifier of 100% (or greater) can be achieved with underachievement of some
targets in some areas balanced with overachievement in others) and shall be
based on performance criteria established pursuant to clause (1) above, subject
to clause (3) below; multiplied by (III) the Employee Participant's applicable
personal modifier (i.e., the individual's performance, expressed as a percentage
ranging from 0% to 150% based on individual contribution), subject to
clause (3) below;
(3) for
purposes of the business and personal modifiers described in clause (2) above,
the 2009 ICP shall provide that (a) the business modifiers (i) will be based on
the performance period commencing on July 1, 2008 and ending on the last day of
the full fiscal quarter ending immediately prior to the Effective Time, (ii) for
purposes of the 2009 Performance Targets use four financial targets rather than
the five targets used for the 2008 ICP, and (iii) utilize calculation methods
used for the 2008 ICP, and (b) the personal modifiers will be determined by the
Company as close in time as reasonably practical prior to the Effective
Time;
(4) for
purposes of clause (2) above, the amount of eligible earnings (determined in a
manner consistent with the 2008 ICP and this
clause
(4)) shall be equal to the aggregate amount of the Employee Participant's
earnings (which in general shall include the employee's base salary and
additional compensation for overtime but not bonuses paid pursuant to the 2008
ICP or otherwise or other types of benefits or payments) paid for the period
commencing July 1, 2008 and ending on the earlier of: (I) the date of such
Employee Participant's termination of employment, provided he is employed by
Company as of the Effective Time, (II) December 31, 2008, if the Effective Time
occurs on or before December 31, 2008 provided he is employed by Company as of
December 31, 2008, and (III) the Effective Time, if the Effective Time occurs
after December 31, 2008 provided he is employed as of the Effective Time (the
"Eligible
Earnings");
(5) if
the Effective Time occurs on or before February 15, 2009, Parent shall pay
amounts due under the 2009 ICP no later than March 15, 2009, for Employee
Participants subject to Section 409A of the Code (and as soon as
administratively practicable thereafter for non-US Employee Participants who are
not subject to Section 409A of the Code); provided that if the Effective
Time occurs after February 15, 2009, then Parent shall make all payments
pursuant to the 2009 ICP within thirty (30) calendar days after the Effective
Time;
(6) the
2009 ICP will terminate on the later of (a) December 31, 2008, if the Effective
Time occurs prior to such date or (b) the Effective Time, at which time Employee
Participants will begin participating in the corresponding plan of Parent (the
"New Plan"),
provided that Employee
Participants shall not receive credit or be paid compensation under the 2009 ICP
and the New Plan or any corresponding Parent plan for the same Eligible Earnings
or period of service. The Company will review with Parent
communications with the Employee Participants regarding the 2009 ICP;
and
(7) for
purposes of Parent's obligations pursuant to Section 5.7(a)(i) to Company
Employees, with respect to bonus incentives, such obligations shall be to
provide, for the period commencing on January 1, 2009 and ending on December 31,
2009, each Employee Participant with a bonus opportunity that is not less
favorable than those provided to Company Employees prior to the Effective Time,
which is defined as (a) such person's Incentive Percentage that is no less
favorable than in effect immediately prior to the Effective Time, and (b) the
use of business and personal modifiers which are determined in good
faith."
Section
4. Amendment to Section
5.13. Section 5.13 of the Merger Agreement is hereby deleted
and replaced in its entirety with the following:
"Section
5.13 Accountants’ Comfort
Letters. If requested by
either the Company or Parent no later than twenty (20) days prior to the Closing
Date, the Company and Parent will each use commercially reasonable efforts to
deliver to the other a letter from their respective independent accountants,
dated as close as practicable to the Closing Date, in form reasonably
satisfactory to the recipient and customary in scope for comfort letters
delivered by independent accountants in connection with registration statements
on Form S-4 under the Securities Act."
Section
5. Amendment to Section
5.18. Section 5.18 of the Merger Agreement is hereby deleted
and replaced in its entirety with the following:
"Section
5.18 Parent Name
Change. Prior to the Effective Time, Parent shall take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable (a) to form a Delaware corporation, all of the
outstanding shares of capital stock of which shall be owned by Parent (the
"Name Change
Sub"), and (b) immediately prior to the Effective Time, to merge the Name
Change Sub with and into Parent pursuant to Section 253 of the DGCL, with Parent
surviving, for the sole purpose of changing the name of Parent to either (1)
"Applied Biosystems, Inc." or (2) another name that is mutually acceptable to
the Company and Parent (the "Parent Name
Change")."
Section
6. No Other Amendments to the
Merger Agreement.
6.1 On
and after the date hereof, each reference in the Merger Agreement to "this
Agreement," "herein," "hereof," "hereunder" or words of similar import shall
mean and be a reference to the Merger Agreement as amended
hereby. Notwithstanding the foregoing, references to the date of the
Merger Agreement, as amended hereby, shall in all instances continue to refer to
June 11, 2008, references to "the date hereof" and "the date of this Agreement"
shall continue to refer to June 11, 2008, and references to the date of the
Amendment and "as of the date of the Amendment" shall refer to September 9,
2008.
6.2 Except
as otherwise expressly provided herein, all of the terms and conditions of the
Merger Agreement remain unchanged and continue in full force and
effect. This Amendment is limited precisely as written and 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
7. Effect of
Amendment. This Amendment shall form a part of the Merger
Agreement for all purposes, and each party hereto and thereto 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. This Amendment shall be deemed to
be in full force and effect from and after the execution of this Amendment by
the parties hereto.
Section
8. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
Section
9. Counterparts. This
Amendment may be executed in 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, it being understood that all parties need not sign the
same counterpart.
Section
10. Headings. The
descriptive headings of the several Sections 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]
IN
WITNESS WHEREOF, the parties have signed or caused this Amendment to be signed
by their respective officers thereunto duly authorized all as of the date first
written above.
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INVITROGEN
CORPORATION
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By:
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/s/
Xxxx X. Xxxxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxxx
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Title:
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Senior
Vice President, General
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Counsel
and Secretary
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ATOM
ACQUISITION, LLC
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By
Invitrogen Corporation, as its Sole Member
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By:
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/s/
Xxxx X. Xxxxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxxx
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Title:
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Senior
Vice President, General
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Counsel
and Secretary
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By:
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/s/
Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chairman
and
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Chief
Executive Officer
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