Exhibit 2.1
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. 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 2. 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 3. Ratification of Merger Agreement. Except as
otherwise
provided herein, all of the terms, covenants and other provisions
of the
Merger Agreement are hereby ratified and confirmed and shall
cont
