AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

NOVARTIS CORPORATION

ZODNAS ACQUISITION CORP.

an indirect, wholly owned subsidiary of Novartis Corporation

EON LABS, INC.

and for purposes of Section 10.12 only, NOVARTIS AG

Dated as of February 20, 2005

TABLE OF CONTENTS

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INDEX OF DEFINED TERMS

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AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this “ Agreement ”) is made and entered into as of this 20th day of February 2005, by and among Novartis Corporation, a New York corporation (“ Novartis ”), Zodnas Acquisition Corp., an indirect, wholly owned Subsidiary of Novartis (“ Merger Sub ”), Eon Labs, Inc., a Delaware corporation (the “ Company ”) and, for purposes of Section 10.12 only,  Novartis AG, a Swiss Company (“ Parent ”).

W   I   T   N   E   S   S   E   T   H :

WHEREAS, the Boards of Directors of Parent, Novartis and Merger Sub, have each unanimously approved the acquisition of the Company on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, contemporaneously with the execution of this Agreement, Novartis is entering into an Agreement for Purchase and Sale of Stock (the “ Santo Agreement ”) by and among Novartis, Santo Holding (Deutschland) GmbH (“ Santo ”), and Novartis AG whereby Novartis is agreeing to purchase, and Santo is agreeing to sell, all of the 60,000,000 (sixty million) shares of common stock, par value $0.01 per share of the Company (“ Company Common Stock ”) owned by Santo (the “ Santo Shares ”, such transaction, the “ Santo Purchase ”), representing approximately 67.5% of the total amount of outstanding shares of Company Common Stock, on the terms and subject to the conditions set forth therein;

WHEREAS, pursuant to this Agreement, Novartis and Merger Sub have agreed that (i) Merger Sub will commence a tender offer (the “ Offer ”) to purchase all of the outstanding shares of Company Common Stock other than the Santo Shares (the “ Public Shares ”), at a price per share of U.S. $31.00 (thirty one U.S. dollars) net to the seller in cash (the “ Offer Price ”) upon the terms and subject to the conditions set forth in this Agreement and (ii) if Merger Sub acquires the Requisite Tender Amount (as defined below) pursuant to the Offer, Merger Sub will merge with and into the Company, with the Company being the surviving corporation, on the terms and subject to the conditions set forth in this Agreement (the merger of Merger Sub into the Company being referred to in this Agreement as the “ Merger ”);

WHEREAS, the Board of Directors of the Company and a special committee of the Board of Directors of the Company consisting of independent directors not affiliated with Santo (the “ Special Committee ”) (i) have approved the Offer, (ii) have determined that the Offer, the Merger (as defined herein) and the other transactions contemplated hereby are fair to and in the best interests of the Company and its stockholders other than Santo, (iii) have approved this Agreement and the transactions contemplated hereby and (iv) are recommending that the Company’s stockholders other than Santo accept the Offer, tender their shares of Company Common Stock to Merger Sub in the Offer and adopt this Agreement;

WHEREAS, Novartis, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and to prescribe certain conditions to the Offer and the Merger;

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

THE OFFER

1.1           The Offer .

(a)           Provided that this Agreement shall not have been terminated in accordance with Article IX hereof, within 10 (ten) Business Days following the date hereof (or such later date as the parties may mutually agree), Merger Sub will commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “ Exchange Act ”)) an offer to purchase any and all outstanding Public Shares at the Offer Price, shall file a Schedule TO and all other necessary documents with the Securities and Exchange Commission (the “ SEC ”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (such documents filed with the SEC and such other deliveries, mailings and notices, the “ Offer Documents ”) and shall use reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof.  Novartis will cause Merger Sub to accept for payment or pay for any Public Shares tendered pursuant to the Offer, subject only to (1) the contemporaneous (or immediately subsequent) purchase of the Santo Shares pursuant to the Santo Agreement and (2) all of the requirements of Law for consummating the Offer (the “ Tender Offer Conditions ”).  “ Law ” shall mean any applicable United States or foreign, federal, state or local law, statute, ordinance, rule, regulation, judgment, order, injunction, decree, agency requirement, license or permit of any Governmental Entity.  “ Governmental Entity ” shall mean any United States or foreign federal, state or local governmental or regulatory authority, agency, commission, body or other governmental entity.  “ Business Day ” shall mean any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.

(b)           Without the prior written consent of the Company by action of the Special Committee, Merger Sub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Public Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Public Shares, except as provided in this Agreement.  The Offer shall remain open until the date that is 20 (twenty) business days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the “ Expiration Date ”), unless Novartis shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided , however , that Novartis may provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligation that Merger Sub accept and promptly pay for any Public Shares tendered during such subsequent offering period).  If, at any Expiration Date, any of the Tender

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Offer Conditions are not satisfied or waived by Merger Sub, Merger Sub shall extend the Offer from time to time, each such extension not to exceed such number of days that Merger Sub reasonably believes are necessary to cause the Tender Offer Conditions to be satisfied (but in any event not more than 30 Business Days per extension unless the parties shall otherwise mutually agree), provided , that at an Expiration Date, if all of the Tender Offer Conditions have been satisfied or waived, Merger Sub may extend the Offer for a period of time not to exceed 10 (ten) Business Days on one occasion in order to obtain the Requisite Tender Amount (as defined below) of tendered shares (if at least 40% of the Public Shares have been tendered and not withdrawn at that Expiration Date) and on one occasion in order to satisfy the requirements necessary to effect a subsequent merger without a meeting of stockholders as contemplated by Section 3.5 (if the number of Public Shares tendered and not withdrawn at that Expiration Date together with other Company Common Stock owned by Merger Sub and Novartis or to be acquired under the Santo Agreement would constitute at least 80% of the Company Common Stock).  Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Novartis will cause Merger Sub to accept for payment and pay for any and all Public Shares validly tendered and not validly withdrawn pursuant to the Offer at the earliest time after such Expiration Date, regardless of the number of Public Shares tendered in the Offer (such date as Merger Sub shall be obligated to accept for payment any and all Public Shares validly tendered and not validly withdrawn pursuant to the Offer, the “ Acceptance Date ”).  On the Acceptance Date, the Confidentiality Agreement, dated as of February 11, 2005, by and between Novartis and the Company (the “ Confidentiality Agreement ”) shall be amended such that the fifth paragraph thereof shall permit Novartis and Merger Sub to make acquisitions of Public Shares that are voluntary to the holders of Public Shares (such as by means of legally permissible open market purchases or tender offers), but shall not permit Novartis to cause a merger transaction (or other business combination) to be effected which would cancel Public Shares unless (i) a majority of the outstanding Public Shares vote in favor of such a transaction or (ii) Novartis and its Subsidiaries shall, at that time, own at least 90% of the outstanding Company Common Stock; provided , that the consideration to be received by the holders of Public Shares in any such transaction described in (ii) above shall be at least equal to the Offer Price per Public Share.

(c)           Novartis and Merger Sub represent that the Offer Documents will comply in all material respects with the provisions of applicable federal and state securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by either Novartis or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents.  Each of Novartis and Merger Sub, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to stockholders of the Company, in each case, as and to the extent required by applicable federal securities laws.  The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents in advance of their filing with the SEC or dissemination to stockholders of the Company.  Novartis shall provide to the Company

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and its counsel in writing any comments Novartis, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.

1.2           Company Actions.

(a)           The Company shall, after affording Novartis a reasonable opportunity to review and comment thereon, file with the SEC and mail to the holders of Company Common Stock, as promptly as practicable on the date of the filing by Novartis and Merger Sub of the Offer Documents, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “ Schedule 14D-9 ”) reflecting the recommendation of the Company’s Board of Directors and the Special Committee that holders of Public Shares tender their shares of Company Common Stock into the Offer, and shall disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the Exchange Act.  The Schedule 14D-9 will set forth, and the Company hereby represents, that the Company’s Board of Directors and the Special Committee, at a meeting duly called at which a quorum was present throughout, have (i) determined by unanimous vote of all its members that each of the transactions contemplated hereby, including each of the Offer and the Merger, is fair to and in the best interests of the Company and its stockholders other than Santo, (ii) approved the Santo Purchase, the Offer and the Merger and this Agreement in accordance with the Delaware General Corporation Law (“ DGCL ”), (iii) recommended acceptance and approval of the Offer and adoption of this Agreement by the Company’s stockholders, and (iv) taken all other action within the Board of Directors’ and the Special Committee’s power to render Section 203 of the DGCL, if applicable, inapplicable to the Santo Purchase, the Offer and the Merger, provided , however , that Novartis and Merger Sub agree that such recommendations may be modified or withdrawn after the date hereof if, but only if, after consultation with its outside counsel, the Special Committee determines that doing so is required in the proper exercise of its fiduciary duties.  The Company further represents that, prior to the execution hereof, Merrill Lynch & Co. (“ Merrill Lynch ”) has delivered to the Special Committee its written opinion that, as of the date of this Agreement, the consideration to be received by the holders of Public Shares pursuant to the Offer and the Merger is fair to such stockholders from a financial point of view.  The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Special Committee described in this Section 1.2(a).

(b)           The Company represents that the Schedule 14D-9 shall comply in all material respects with the provisions of applicable federal and state securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Novartis or Merger Sub in writing for inclusion in the Schedule 14D-9.  Each of the Company, on the one hand, and Novartis and Merger Sub, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to stockholders of the Company, in each case, as and to the extent required by applicable federal securities laws.

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The Company shall provide to Novartis and its counsel in writing any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments.

(c)           In connection with the Offer, the Company will promptly furnish Merger Sub with mailing labels, security position listings, any available non-objecting beneficial owner lists and any available listing or computer list containing the names and addresses of the record holders of the Company Common Stock as of the most recent practicable date and shall furnish Merger Sub with such additional available information (including, but not limited to, updated lists of holders of the Company Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other assistance as Merger Sub or its agents may reasonably request in communicating the Offer to the Company’s record and beneficial stockholders.  Subject to the requirements of applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Novartis, Merger Sub and their Affiliates, associates, agents and advisors shall keep such information confidential and use the information contained in any such labels, listings and files only in connection with the Offer and the Merger and, should the Offer terminate or if this Agreement shall be terminated, will destroy all copies of such information then in their possession, provided , that Novartis, Merger Sub and their Affiliates, associates, agents and advisors may keep one copy of such information in the office of their general counsel solely for the purpose of preserving the record of the materials received and using the same to defend against any claims or actions threatened or instituted involving such information.  Novartis, Merger Sub and their Affiliates, associates, agents and advisors may retain all analyses, compilations, studies or other documents or records prepared by them, which contain or otherwise reflect or are generated from such information.

1.3           Directors.

(a)           Subject to compliance with applicable Law, from and after the Acceptance Date, Novartis shall be entitled to designate each member of the Company’s Board of Directors, and the Company shall promptly take all actions necessary to cause Novartis’ designees to be so elected, including, if necessary, seeking the resignations of one or more existing directors and prior to the Acceptance Date removing any potential restrictions on the ability of any Novartis designees to serve on the Company’s Board of Directors; provided , that if Novartis and the Company shall have purchased in the Offer (including any subsequent offering period) the Requisite Tender Amount, then until the Effective Time, Novartis and Merger Sub shall allow the members of the Special Committee or their designees’ who shall be deemed the “Special Committee” for all purposes of this Agreement, to remain on the Company’s Board of Directors provided , that if both of the members of the Special Committee shall be unable or unwilling to remain on the Company’s Board of Directors and neither shall have designated a replacement, Novartis shall be permitted to replace such members with other independent directors who shall be deemed the “Special Committee” for all purposes of this Agreement; provided , however, that such independent directors designated by Novartis shall not have the authority to reduce the Merger Consideration.

(b)           The Company’s obligations to appoint Novartis’ designees to the Company’s Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1

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thereunder.  The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 1.3.  Novartis will supply to the Company any information with respect to itself and its nominees, officers, directors and Affiliates required by such Section and Rule. 

ARTICLE II

THE MERGER

2.1           The Merger .  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company, and the separate corporate existence of Merger Sub shall thereupon cease.  The Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “ Surviving Corporation ”), and the separate corporate existence of the Company with all of its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except as set forth in this Article II.  The Merger shall have the effects specified in the DGCL. 

2.2           Effective Time . As promptly as practicable after the satisfaction or, if permissible, waiver of the conditions set forth in Article VIII, the parties hereto shall cause the Merger to be consummated by filing this Agreement or a certificate of merger (the “ Certificate of Merger ”) with the Secretary of State of the State of Delaware, in such form as is required by, and executed in accordance with, the relevant provisions of the DGCL (the date and time that the Merger becomes effective in accordance with applicable Law being the “ Effective Time ”). 

2.3           Certificate of Incorporation .  At the Effective Time, and without any further action on the part of the Company or Merger Sub, subject to Section 7.9, the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall be amended in its entirety to read the same as the certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein or by applicable Law (the “ Certificate of Incorporation ”).

2.4           By-Laws .  At the Effective Time, and without any further action on the part of the Company or Merger Sub, subject to Section 7.9, the by-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall be amended in its entirety to read the same as the by-laws of the Surviving Corporation (the “ By-Laws ”), until thereafter amended as provided therein, in the Certificate of Incorporation or in accordance with applicable Law.

2.5           Directors .  Subject to requirements of applicable Law, the directors of Merger Sub immediately prior to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and the By-Laws. 

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2.6           Officers. The officers of the Company immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and the By-Laws.

ARTICLE III

Effect of the Merger on Capital Stock; Exchange of Certificates

3.1           Effect on Capital Stock .  At the Effective Time, as a result of the Merger and without any further action on the part of the Company, Novartis, Merger Sub or any holder of any shares of capital stock of the Company, Novartis or Merger Sub:

(a)           Merger Sub .  Each share of common stock, par value of $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) fully paid share of common stock, par value $0.01 per share, of the Surviving Corporation (which will be owned by Novartis) and constitute the only outstanding shares of capital stock of the Surviving Corporation and shall not be affected by the Merger.

(b)           Cancellation of Treasury Stock and Novartis-Owned Stock.   Each share of Company Common Stock that is owned by the Company directly as treasury stock or by Parent or any of its Subsidiaries (other than in a representative or fiduciary capacity) shall automatically be retired and shall cease to be outstanding, and no cash or other consideration shall be delivered in exchange therefor.  As used in this Agreement, “ Subsidiary ” when used with respect to any party hereto, means any entity of which such party (a) owns 50% or more of the outstanding securities or other ownership interests, or (b) through contract or otherwise possesses power to appoint at least 50% of the directors of such entity (or Persons performing similar functions). 

(c)           Conversion of Company Common Stock .  Subject to Section 3.3, each issued and outstanding share of Company Common Stock (other than shares of Company Common Stock to be retired in accordance with Section 3.1(b)), shall be converted into the right to receive the Offer Price in cash, without interest (the “ Merger Consideration ”).  As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock (a “ Certificate ”) shall cease to have any rights with respect thereto, except the right to receive, upon the surrender of such certificates (for each share of Company Common Stock represented thereby), the Merger Consideration.  

(d)           Stock Options .   As of the Effective Time, each outstanding option to purchase shares of Company Common Stock under any employee stock option or compensation plan or arrangement of the Company (a “ Company Option ”), whether or not exercisable or vested, shall by virtue of the Merger and without any action on the part of any holder of any Company Option be cancelled and the holder thereof will receive as soon as reasonably practicable following the Effective Time a cash payment with respect thereto equal to the product of (a) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Option and (b) the number of shares of Company Common Stock issuable upon exercise of such Company Option (the “ Option Cash Payment ”).  As of the Effective Time, all Company Options shall no

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longer be outstanding and shall automatically cease to exist, and each holder of a Company Option shall cease to have any rights with respect thereto, except the right to receive the Option Cash Payment.  Prior to the Acceptance Date the Company shall take any and all actions necessary to effectuate this Section 3.1(d).  

3.2           Exchange of Share Certificates . 

(a)           Paying Agent .  Prior to the Effective Time, Novartis shall designate a paying agent reasonably acceptable to the Company to act as paying agent (the “ Paying Agent ”) for the payment of the Merger Consideration or other payment to which holders of Company Options shall become entitled pursuant to Section 3.1.  Prior to the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, Novartis shall deposit with the Paying Agent, for the benefit of the holders of Certificates and Company Options, cash equal to the product of (A) the number of shares of Company Common Stock outstanding (and not to be retired pursuant to Section 3.1(b)) as of immediately prior to the Effective Time (the “ Company Outstanding Shares ”) multiplied by (B) the Merger Consideration, plus an amount equal to (Y) the sum of the Option Cash Payments.  The deposit made by Novartis, pursuant to this Section 3.2(a) is hereinafter referred to as the “ Exchange Fund .”  The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Company Common Stock and holders of Company Options and (ii) applied promptly to making the payments provided for in Section 3.1.  The Exchange Fund shall not be used for any purpose that is not expressly provided for in this Agreement.  If the Paying Agent invests the Exchange Fund, the Paying Agent shall only invest the Exchange Fund in obligations of or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Services, Inc. or Standard & Poor’s Corporation, respectively.

(b)           Exchange Procedures .  As soon as reasonably practicable after the Effective Time, Novartis shall cause the Paying Agent to mail to each holder of record of a Certificate (i) a letter of transmittal specifying that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent, such letter of transmittal to be in customary form and have such other provisions as Novartis may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration (such instructions shall include instructions for the payment of the Merger Consideration to a Person other than the Person in whose name the surrendered Certificate is registered on the transfer books of the Company, subject to the receipt of appropriate documentation for such transfer).  Upon surrender to the Paying Agent of a Certificate (or evidence of loss in lieu thereof) for cancellation together with such letter of transmittal, duly completed and validly executed, and such other documents as may reasonably be requested by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration that such holder is entitled to receive pursuant to this Article III, and the Certificate so surrendered shall forthwith be cancelled; provided that in no event will a holder of a Certificate be entitled to receive the Merger Consideration if Merger Consideration was already paid with respect to the shares of Company Common Stock underlying such Certificate in connection with an affidavit of loss.  No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.  In the event of a transfer of ownership of Company Common Stock that is not

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registered in the transfer records of the Company, payment may be issued to such a transferee if the Certificate formerly representing such Company Common Stock is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer, and the Person requesting such issuance pays any transfer or other taxes required by reason of such payment to a Person other than the registered holder of such Certificate or establishes to the satisfaction of Novartis and the Company that such tax has been paid or is not applicable. 

For the purposes of this Agreement, the term “ Person ” shall mean any individual, corporation (including not-for-profit corporations), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.

(c)           Transfers.  After the Effective Time, there shall be no registration of transfers on the stock transfer books of the Company of Company Common Stock that were outstanding immediately prior to the Effective Time. 

(d)           Termination of Exchange Fund .  Any portion of the Exchange Fund relating to the Merger Consideration that remains unclaimed by the stockholders of the Company or holders of Company Options 180 (one hundred and eighty) days after the Effective Time shall be returned to Novartis or the Surviving Corporation.  Any stockholders of the Company or holders of Company Options who have not theretofore complied with this Article III shall thereafter look only to Novartis for payment of the Merger Consideration upon due surrender of their Certificates (or affidavits of loss in lieu thereof), without any interest thereon.  Notwithstanding the foregoing, none of Novartis, Merger Sub, the Surviving Corporation, the Paying Agent or any other Person shall be liable to any former holder of Company Common Stock or holder of Company Options for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.

(e)           Lost, Stolen or Destroyed Certificates .  In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Novartis, the posting by such Person of a bond reasonably satisfactory to Novartis as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration upon due surrender of the Company Common Stock represented by such Certificate pursuant to this Agreement.

(f)            Withholding Rights .  Each of Novartis, Merger Sub, the Paying Agent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article III such amounts as it is required to deduct and withhold with respect to the making of such payment under provision of any federal, state, local or foreign tax law.  If Novartis, Merger Sub, the Paying Agent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Common Stock in respect of which Novartis, Paying Agent or the Surviving Corporation, as the case may be, made such deduction and withholding.

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3.3           Dissenters’ Rights .

(a)           Notwithstanding anything in any other Section of this Agreement to the contrary, Company Common Stock, outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such shares in accordance with Section 262 of the DGCL (the “ Dissenting Shares ”) shall not be converted into, or represent the right to receive, the Merger Consideration, unless such holder fails to perfect or withdraws or otherwise loses his right to appraisal.  At the Effective Time, all Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive, subject to and net of any applicable withholding of Taxes, payment of the appraised value of such Dissenting Shares held by them in accordance with the provisions of Section 262 of the DGCL.  Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 of the DGCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, then the right of s