EXHIBIT 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF
MERGER
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 Performanc
