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
