Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF
MERGER
Amendment No. 1, dated as of
December 17, 2006 (this “ Amendment ”), to
the Agreement and Plan of Merger, dated as of October 16, 2006
(as amended hereby, the “ Merger Agreement ”),
by and among ELI LILLY AND COMPANY, an Indiana corporation (“
Parent ”), TOUR MERGER SUB, INC., a Delaware
corporation and a wholly owned subsidiary of Parent (“
Merger Sub ”), and ICOS CORPORATION, a Washington
corporation (the “ Company ”).
WHEREAS, Parent, Merger Sub and the
Company have heretofore entered into the Merger Agreement
providing, among other things, for the merger of Merger Sub with
and into the Company, with the Company surviving as a wholly owned
subsidiary of Parent;
WHEREAS, Parent, Merger Sub and the
Company have agreed to amend certain provisions of the Merger
Agreement; and
WHEREAS, the Boards of Directors of
Parent and the Company each have unanimously approved such
amendments to the Merger Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Parent, Merger Sub and the Company agree as
follows:
1. Definitions . Unless
otherwise defined herein, capitalized terms that are defined in the
Merger Agreement and used herein shall have the meanings set forth
in the Merger Agreement.
2. Amendment to
Section 3.1(c) . The first sentence of Section 3.1(c)
is hereby amended by deleting “$32.00” and replacing
such amount with “$34.00”.
3. Representations and Warranties
of the Company . Except as otherwise disclosed in the Company
Disclosure Schedule, the Company represents and warrants that the
representations and warranties contained in Sections 4.1, 4.4, and
4.5 of the Merger Agreement (as qualified by the introductory
paragraph of Article IV of the Merger Agreement) are true and
correct after giving effect to this Amendment. The Company does not
make
