AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER (this “Amendment”) dated
as of January 11, 2006, by and among JOHNSON & JOHNSON, a
New Jersey corporation (“Parent”), SHELBY MERGER
SUB, INC., an Indiana corporation and a wholly owned Subsidiary of
Parent (“Sub”), and GUIDANT CORPORATION, an Indiana
corporation (the “Company”).
WHEREAS Parent, Sub and the Company are parties
to that certain Amended and Restated Agreement and Plan of Merger
dated as of November 14, 2005 (the “Merger
Agreement”);
WHEREAS, pursuant to Section 7.03 of the Merger
Agreement, Parent, Sub and the Company desire to amend the Merger
Agreement as provided in this Amendment; and
WHEREAS the Board of Directors of each of the
Company and Sub have adopted, and the Board of Directors of Parent
has approved, this Amendment;
NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements contained in this Amendment and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1.01.
Amendments to the Merger
Agreement.
(a) The second “Whereas” clause of the
Merger Agreement is hereby amended and restated in its entirety as
follows:
WHEREAS the
Board of Directors of each of the Company and Sub has adopted, and
the Board of Directors of Parent has approved, this Agreement and
the merger of Sub with and into the Company (the
“Merger”), upon the terms and subject to the conditions
set forth in this Agreement, whereby each issued and outstanding
share of common stock, without par value, of the Company
(“Company Common Stock”), other than shares of Company
Common Stock directly owned by Parent, Sub or the Company, will be
converted into the right to receive (a) a number of validly
issued, fully paid and nonassessable shares of common stock, par
value $1.00 per share, of Parent (“Parent Common
Stock”) and (b) $37.25 in cash, without
interest;
(b) The first sentence of Section 2.01(c) of the
Merger Agreement is hereby amended and restated in its entirety as
follows:
Subject to
Section 2.02(e), each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (other than
shares to be canceled in accordance with Section 2.01(b))
shall be converted into the right to receive (i) 0.493 (the
“Exchange Ratio”) validly issued, fully paid
and
nonassessable
shares of Parent Common Stock (the “Stock Portion”) and
(ii) $37.25 in cash, without interest (the “Cash
Portion” and, together with the Stock Portion, the
“Merger Consideration”).
(c) The first paragraph of Section 3.01 of the
Merger Agreement shall be amended as follows:
(i) the phrase “prior to November 14,
2004” shall be replaced with the phrase “prior to
January 11, 2006” and
(ii) the phrase “prior to the execution of this
Agreement” shall be amended by replacing the words “the
execution of this Agreement” with the words “November
14, 2005”.
(d) The phrase “as of November 14, 2005”
in the fourth sentence of Section 3.01(d) of the Merger Agreement
and in Section 3.01(t) of the Merger Agreement shall be replaced,
in each case, with the phrase “as of January 11,
2006”.
(e) The phrase “a fee equal to
$625,000,000” in Section 5.06(b) of the Merger Agreement
shall be replaced with the phrase “a fee equal to
$675,000,000”.
(f) The phrase “after November 14, 2005”
in Section 5.08 of the Merger Agreement shall be replaced with the
phrase “after January 11, 2006”.
(g) Exhibit B to the Merger Agreement is hereby
replaced in its entirety by Exhibit A attached hereto.
SECTION 1.02.
Representations and
Warranties .
(a) The Company represents and warrants to Parent
and Sub as follows:
(i) The Company has been duly organized, and is
validly existing and in good standing under the Laws of the State
of Indiana.
(ii) The Company has all requisite corporate power
and authority to execute and deliver this Amendment. The execution
and delivery of this Amendment by the Company have been duly
authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the
Company are necessary to authorize this Amendment. This Amendment
has been duly executed and delivered by the Company and, assuming
the due authorization, execution and delivery by each of the other
parties hereto, constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization or similar Laws affecting the rights of
creditors generally and the availability of equitable remedies
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) Parent and Sub represent and warrant to the
Company as follows:
(i) Each of Parent and Sub is a corporation duly
organized, validly existing and in good standing under the Laws of
the jurisdiction in which it is incorporated.
(ii) Each of Parent and Sub has all requisite
corporate power and authority to execute and deliver this
Amendment. The execution and delivery of this Amendment by Parent
and Sub have been duly authorized by all necessary corporate action
on the part of Parent and Sub and no other corporate proceedings on
the part of Parent or Sub are necessary to authorize this
Amendment. This Amendment has been duly executed and delivered by
each of Parent and Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes a legal, valid
and binding obligation of Parent and Sub, enforceable against
Parent and Sub in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or
similar Laws affecting the rights of creditors generally and the
availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
SECTION 1.03.
Ratification of Merger
Agreement . Except as
otherwise provided herein, all of the terms, covenants
and
