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Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
Amendment No. 1, dated as of December 17, 2006 (this "
Amendment "), to the Agreement and Plan of Merger, dated as
of October 16, 2006 (as amended hereby, the " Merger
Agreement "), by and among ELI LILLY AND COMPANY, an Indiana
corporation (" Parent "), TOUR MERGER SUB, INC., a Delaware
corporation and a wholly owned subsidiary of Parent (" Merger
Sub "), and ICOS CORPORATION, a Washington corporation (the "
Company ").
WHEREAS, Parent, Merger Sub and the Company have heretofore
entered into the Merger Agreement providing, among other things,
for the merger of Merger Sub with and into the Company, with the
Company surviving as a wholly owned subsidiary of Parent;
WHEREAS, Parent, Merger Sub and the Company have agreed to amend
certain provisions of the Merger Agreement; and
WHEREAS, the Boards of Directors of Parent and the Company each
have unanimously approved such amendments to the Merger
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Parent, Merger Sub
and the Company agree as follows:
1. Definitions . Unless otherwise defined herein,
capitalized terms that are defined in the Merger Agreement and used
herein shall have the meanings set forth in the Merger
Agreement.
2. Amendment to Section 3.1(c) . The first
sentence of Section 3.1(c) is hereby amended by deleting
"$32.00" and replacing such amount with "$34.00".
3. Representations and Warranties of the Company . Except
as otherwise disclosed in the Company Disclosure Schedule, the
Company represents and warrants that the representations and
warranties contained in Sections 4.1, 4.4, and 4.5 of the Merger
Agreement (as qualified by the introductory paragraph of Article IV
of the Merger Agreement) are true and correct after giving effect
to this Amendment. The Company does not make any other
representations or warranties as of the date of this Amendment.
4. Representations and Warranties of Parent and Merger
Sub . Parent and Merger Sub repre
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