AMENDMENT NO. 1
TO THE STOCK AND ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 dated August 16, 1999 (this "Amendment"), among
SmithKline ▇▇▇▇▇▇▇ plc, a public limited company organized under the laws of
England ("Seller"), SmithKline ▇▇▇▇▇▇▇ Corporation, a Pennsylvania corporation
and an indirect wholly owned subsidiary of Seller ("Seller Subsidiary"), and
Quest Diagnostics Incorporated, a Delaware corporation ("Buyer"), to the Stock
and Asset Purchase Agreement dated as of February 9, 1999 (the "Agreement")
among Seller, Buyer and, for purposes of Articles IX, XI and XIII of the
Agreement only, Seller Subsidiary. Capitalized terms used herein without
definition have the meanings assigned to them in the Agreement.
WHEREAS, pursuant to Section 13.02 of the Agreement, the Agreement
may be amended by a written amendment signed by Seller, Seller Subsidiary and
Buyer; and
WHEREAS, Seller, Seller Subsidiary and Buyer wish to amend the
Agreement as to certain of its provisions, as specified herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, Seller, Seller Subsidiary and
Buyer hereby agree to amend the Agreement as follows:
SECTION 1. Amendment to Section 1.01(a). (a) Section 1.01(a) hereby
amended by deleting the definition of "Intellectual Property Agreements"
therefrom.
(b) Section 1.01(a) is hereby further amended by deleting the
definition of "License Agreement" therefrom and replacing it with the
following definition:
""License Agreement" means the Names License Agreement attached
hereto as Exhibit G."
(c) Section 1.01(a) is hereby further amended by deleting the
definition of "Data Access Agreement" therefrom and replacing it with the
following definition:
""Data Access Agreement" means the Category One Laboratory Data
Access Agreement, the Category Three Laboratory Data Access Agreement,
the Participation Agreement and the Encoding Letter Agreement, in the
form attached hereto as Exhibits B-1 through B-4, respectively, and any
related letter agreements.
SECTION 2. Amendment to Section 2.01(c)(iii). Section 2.01(c)(iii)
is hereby amended by deleting "Non-U.S. Leased Property" therefrom and
replacing it with "Non-U.S. Leased Real Property".
SECTION 3. New Section 2.03(d). A new Section 2.03(d) is hereby
added to read as follows:
"(d) At Closing (i) Seller and Buyer shall each execute (A)
a copyright license agreement (the "Copyright License Agreement"), in
the form attached hereto as Exhibit F-1, and (B) a trademark license
agreement (the "Trademark License Agreement"), in the form attached
hereto as Exhibit F-2 and (ii) Seller shall deliver to Buyer (A) a
copyright assignment (the "Copyright Assignment"), in the form
attached hereto as Exhibit F-3, (B) a patent assignment (the "Patent
Assignment"), in the form attached hereto as Exhibit F-4, and (C)
trademark assignments (the "Trademark Assignments"), in the forms
attached hereto as Exhibits F-5 through F-9 (the Trademark
Assignments, collectively with the Copyright License Agreement, the
Trademark License Agreement, the Copyright Assignment and the Patent
Assignment, are referred to herein as the "Intellectual Property
Agreements")."
SECTION 4. New Section 2.04(d). A new Section 2.04(d) is hereby
added to read as follows:
"(d) Buyer agrees to fund the employer contribution which
would have otherwise been paid into Seller's 401(k) Plan, into
Buyer's 401(k) Plan, for the first payroll paid to Continued
Employees subsequent to the Closing Date; provided that Seller shall
accrue such liability and such liability shall be included in the
Statement of Net Worth."
SECTION 5. Amendment to Section 3.17. Section 3.17 is amended hereby
by inserting "(a)" after "Employees." and before "Except".
SECTION 6. Amendment of Section 3.20. Section 3.20 is hereby amended
to add the following sentence to the end of such Section:
"Notwithstanding the foregoing, Seller makes no representations or
warranties with respect to the Names."
SECTION 7. New Section 3.22. A new Section 3.22 is hereby added to
read as follows:
"SECTION 3.22. Disclosure Supplement. (a) Seller hereby
delivers to Buyer a supplement to the Seller Disclosure Schedule (the
"Seller Disclosure Supplement"), in the form attached hereto. The
Seller Disclosure Supplement shall amend the Seller Disclosure
Schedule and such amendment shall be effective as of February 9,
1999. Each reference to the Seller Disclosure Schedule in the
Agreement shall be deemed to refer the Seller Disclosure Schedule as
amended and supplemented by the Seller Disclosure Supplement."
(b) Buyer hereby delivers to Seller a supplement to the
Buyer Disclosure Schedule (the "Buyer Disclosure Supplement"), in the
form attached hereto. The Buyer Disclosure Supplement shall amend the
Buyer Disclosure Schedule and such amendment shall be effective as of
February 9, 1999. Each reference to the Buyer Disclosure Schedule in
the Agreement shall be deemed to refer the Buyer Disclosure Schedule
as amended and supplemented by the Buyer Disclosure Supplement."
SECTION 8. Amendment to Section 5.02(k). Section 5.02(k) is hereby
amended by inserting ", for each such individual lease," after the word
"which".
SECTION 9. Amendment to Section 5.11(a). (a) Section 5.11(a) is
hereby amended by deleting "Exhibit 5.11(a)" therefrom and replacing it with
"Section 5.11(a) of the Seller Disclosure Schedule".
(b) Section 5.11(a) is hereby further amended by deleting "Section
5.13(a)" therefrom and replacing it with "Section 5.11(a)".
SECTION 10. New Section 5.13. A new Section 5.13 is hereby added to
read as follows:
"SECTION 5.13. No Solicitation. Seller shall not, and shall not
permit its Affiliates to, directly or indirectly, (a) prior to the second
anniversary of the Closing Date, induce or attempt to induce any officer
or employee to leave the employ of Buyer, the Company or the Company
Subsidiary or violate the terms of their contracts, or any employment
arrangements, with Buyer, the Company or the Company Subsidiary or (b)
hire or employ any (i) Senior Level Employee or any Continued Employee
who is a sales manager of the Business prior to the second anniversary of
the Closing Date, or (ii) Continued Employee who is primarily engaged in
providing information technology services and is either a vice president
or a participant in Seller's MRI Programme ("IT Personnel") for the
period beginning as of the Closing Date and ending on December 31, 2000.
Notwithstanding the foregoing, the limitations set forth in this Section
5.13 shall not apply to the inducement, attempted inducement, hiring or
employment of any Person other than any Senior Level Employee, sales
manager or member of IT Personnel, who responds to a bona fide
advertisement placed in general circulation and which is not targeted at
any of the Persons to whom Section 5.13(a) or (b) would otherwise apply."
SECTION 11. Amendment to Section 6.07. Section 6.07 is hereby
amended by adding the following sentence to the end thereof:
"Seller makes no representations or warranties with respect to the
Names."
SECTION 12. Amendment to Section 7.09(a). Section 7.09(a) of the
Agreement is hereby amended by deleting "$1.0 billion" therefrom and replacing
it with "$980 million".
SECTION 13. Amendment to Section 7.09(a). Section 7.09(a) is hereby
amended by adding the following sentence between the first and second
sentences thereof:
"For the avoidance of doubt, a subletting of the property identified
as item 2 of Section 7.09 of the Seller Disclosure Schedule for the same
term and on substantially the same economic terms as the existing lease
shall fully satisfy Seller's obligations under this Section 7.09(a) with
respect to such property."
SECTION 14. Amendment to Section 8.14. Section 8.14 is hereby
amended by adding "Except as provided in Note 18 of Exhibit A of the
Transition Services Agreement," to the beginning of the second sentence
thereof.
SECTION 15. Amendment to Section 8.15. Section 8.15 is hereby
deleted in its entirety and replaced with a new Section 8.15 to read as
follows:
"SECTION 8.15. MRI Bonuses. (a) With respect to Seller's
Millennium Retention Initiative Programme ("Seller's MRI
Programme"), Buyer shall establish, effective as of the Closing, a
plan replicating all of the terms of the Seller's MRI Programme as
in effect on the date hereof (other than the share option component
of Seller's MRI Programme, which Buyer shall have no obligation to
replicate) to the extent necessary to comply with the provisions of
this Section 8.15 ("Buyer's MRI Programme"). Buyer shall pay to
eligible Continued Employees all annual cash awards earned in
respect of 1998 and 1999 to the extent reflected on the Closing Date
Balance Sheet and not paid by Seller prior to the Closing. The
determination of whether the annual cash awards in respect of 1999
have been earned will be determined by Buyer in accordance with the
terms of the Buyer's MRI Programme which replicate the applicable
terms of Seller's MRI Programme as in effect on the date hereof.
(b) With respect to the Year 2000 award payable under Seller's
MRI Programme in 2000 which is funded, in part, through share
options (the "Year 2000 Award"), eligible Continued Employees will
forfeit the Year 2000 Award as of the Closing; provided, however,
that the Buyer shall provide a payment to such eligible Continued
Employees in respect of the cash and share option components of
their forfeited Year 2000 Awards, and Seller will reimburse Buyer
for any such payment made to eligible Continued Employees, as
provided hereinbelow. Buyer will cause the Company to establish a
cash award initiative under Buyer's MRI Programme which will
replicate the Year 2000 Award (the "Substitute Year 2000 Award").
Buyer will make all determinations with respect to whether the
applicable performance criteria in respect of the Substitute Year
2000 Awards have been achieved as of the end of the performance
period (applying the same performance criteria set forth in Seller's
MRI Programme as in effect as of the date hereof), subject to
Buyer's consultation with the chief information officer of Seller
before finalizing such determinations. Seller shall reimburse Buyer
for a portion of the amount paid by Buyer to eligible Continued
Employees in respect of the Substitute Year 2000 Awards, as follows:
(i) In respect of the cash component of the forfeited Year 2000
Award, Seller shall reimburse Buyer for a proportional share of the
cost of the cash component of the Substitute Year 2000 Award based
upon the portion of the aggregate annual cash awards for 1997, 1998
and 1999 under the Seller's MRI Programme (the "Three MRI Annual
Awards") and Buyer's MRI Programme that were either paid by Seller
or accrued on the Closing Date Balance Sheet (based upon a calendar
year accrual for bonuses paid or payable in 1997, 1998 and 1999 and
prorated for 1999 based upon the assumption that 50% of the 1999
annual cash award was paid or accrued by Seller)) as a percentage of
the aggregate Three MRI Annual Awards which are paid, respectively,
by the Seller and Buyer under such Programmes.
(ii) Seller shall reimburse Buyer for an amount equal to the
product of (x) multiplied by (y), where (x) is an amount equal to
the excess, if any, by which the aggregate value of the share option
component of the Year 2000 Awards under the Seller's MRI Programme
for eligible Continued Employees on the date that the execution of
this Agreement is publicly announced by the Seller, based upon the
closing price per share for Parent's American Depository Receipts as
reported on such date on the New York Stock Exchange, exceeds 67% of
the aggregate Three MRI Annual Awards, and where (y) equals 0% (if
the level 1 performance threshold is not achieved) 50% (if only the
level 1 performance is achieved) or 100% (if the level 2 performance
threshold is achieved) as determined by Buyer (after consultation
with Seller, as provided hereinabove) in respect of the Substitute
Year 2000 Awards.
(iii) The allocation of the cost of Year 2000 Awards and
Substitute Year 2000 Awards is set forth in Section 8.15 of the
Seller Disclosure Schedule. To the extent there is any inconsistency
between the language set forth in this Section 8.15 and the
allocation set forth in Section 8.15 of the Seller Disclosure
Schedule, the latter shall govern."
SECTION 16. New Section 8.16. A new Section 8.16 is hereby added to
read as follows:
"Promptly after the Closing, but in any event within sixty days
following the Closing Date, Buyer shall cause SBCL to pay all
amounts earned through the Closing to all of the Continued Employees
in accordance with all variable compensation plans maintained by
Seller or any of its Affiliates for the benefit of the Continued
Employees immediately prior to the Closing including, but not
limited to, those items listed in Section 3.13 of the Seller's
Disclosure Schedule. In order to effect such payment, Seller shall
be responsible for the administration of such bonus payments,
including the preparation and distribution of any communications,
the calculation of such bonus payments and shall provide Buyer a
copy of all such communications and the basis for calculations. The
aggregate gross amount of such payments, and other amounts accruing
as a result of such payments (including payroll taxes and employer
matches under the 401(k) or other plans) shall be accrued and
reflected as a liability on the statement of Consolidated Tangible
Net Worth of the Business as of the Closing Date."
SECTION 17. Amendment to Section 9.12(h). Section 9.12(h) is hereby
amended by deleting the reference to "paragraph (h)" from the second sentence
thereof and replacing it with "paragraph (g)".
SECTION 18. Amendment to Section 9.12(i). Paragraph (i) of Section
9.12 of the Agreement is hereby amended and restated in its entirety to read
as follows:
"(i) In order to allow Buyer to make proper payments of quarterly
estimated U.S. federal, state and local Taxes, and proper payments in
connection with extensions of time to file U.S. federal, state and local
Tax Returns, on behalf of the Buyer Group (including the Company and the
Company Subsidiary) for taxable periods (or portions thereof) ending
after the Closing Date (such quarterly payments and extension payments
hereinafter are referred to as "Post-Closing Estimated Taxes"), Seller
and Seller Subsidiary estimate that, following the Closing Date, the
Company and the Company Subsidiary will be required by U.S. federal
income Tax law to report no more than $159,755,404 of net Code Section
481 adjustments attributable to (x) the enactment of Code Section
475(c)(4) and Section 7003(c)(2) of the IRS Restructuring and Reform Act
of 1998 and (y) the Company Subsidiary's applications for a change in
accounting method with respect to accounts receivable to be effective
beginning with the 1998 taxable year of the Company Subsidiary (the
"Estimated Adjustments"), and that the Company and the Company Subsidiary
will carry forward $0 of net operating losses from Pre-Closing Tax
Periods to Post-Closing Tax Periods (the "Estimated NOLs"). Following the
Closing Date, when necessary or appropriate, Seller Subsidiary will
notify Buyer, in writing, of any changes in the amounts of the Estimated
Adjustments and the Estimated NOLs, and of any compensation deductions
believed to be available to the Company or the Company Subsidiary in
respect of the exercise of options on Seller Shares (the "Estimated
Compensation Deductions"), and Seller Subsidiary will provide Buyer with
reasonable documentation in support of such changes and the Estimated
Compensation Deductions. Within 30 days prior to each due date prescribed
by the Code for the payment of Post-Closing Estimated Taxes for a
Post-Closing Tax Period with respect to which the Estimated Adjustments
exceed the sum of the Estimated NOLs and the Estimated Compensation
Deductions, Buyer shall provide Seller Subsidiary with preliminary
calculations, and within 10 days prior to each such due date, Buyer shall
provide Seller Subsidiary with final calculations (in each case, with
reasonable supporting documentation), of (a) the Post-Closing Estimated
Taxes payable for the applicable period and (b) the amount of such Taxes
attributable to the Estimated Adjustments, the Estimated NOLs and the
Estimated Compensation Deductions (the "Relevant Estimated Taxes"). For
purposes of such calculations, Buyer and Seller Subsidiary agree that (a)
except with respect to payments made in connection with extensions of
time to file, Buyer will use the annualized income method under Section
6655 of the Code (and, where available, under any similar provision of
state or local Tax law) to the extent that Buyer reasonably determines
that such method would reduce the
amount of Post-Closing Estimated Taxes payable for any applicable period,
and (b) Buyer's final calculations of the Relevant Estimated Taxes will
be determined with reference to Buyer's actual U.S. federal Tax liability
and an estimate of Buyer's state and local Tax liability using the
combined effective state and local Tax rate for the Company and the
Company Subsidiary in jurisdictions where they file on a stand-alone
basis, and the combined effective state and local Tax rate of the Buyer
Group in jurisdictions where the Company and the Company Subsidiary file
on a consolidated, combined or unitary basis with other members of the
Buyer Group, in each case calculated taking into account the benefit of
deducting state and local Taxes from federal income Tax . Buyer and
Seller Subsidiary agree to negotiate in good faith to resolve any
disputes with respect to the amounts of the Estimated Adjustments, the
Estimated NOLs and the Estimated Compensation Deductions, and with
respect to calculations of the Post-Closing Estimated Taxes and the
Relevant Estimated Taxes. In the event that any disputes remain
unresolved after such negotiations, then for purposes of this Section
9.12(i), the determination of Seller Subsidiary shall be final with
respect to disputes relating to the Estimated Adjustments, the Estimated
NOLs and the Estimated Compensation Deductions, and the determination of
Buyer shall be final with respect to all other matters relating to
calculations of the Post-Closing Estimated Taxes and the Relevant
Estimated Taxes, provided that Seller Subsidiary shall indemnify Buyer
for interest and penalties that are payable by Buyer (or any of its
Subsidiaries) to the Internal Revenue Service or other relevant Taxing
authority and that are attributable to a material error or omission in
such a final determination of Seller Subsidiary, and Buyer shall pay to
Seller Subsidiary interest at the "underpayment rate" (as defined in
Section 6621 of the Code) on any overpayments that are made by Seller
Subsidiary to Buyer under this Section 9.12(i) that are attributable to a
material error or omission in such a final determination of Buyer (which
interest, for purposes of clarification, shall run from the date of
Seller Subsidiary's overpayment to Buyer to the date on which such
overpayment is reimbursed from Buyer to Seller Subsidiary or is credited
against other amounts owing from Seller Subsidiary to Buyer under this
Section 9.12). Within 7 days following its receipt of Buyer's final
calculations of Post-Closing Estimated Taxes and Relevant Estimated Taxes
for any applicable period (but in no event earlier than 3 days prior to
the due date prescribed by the Code for the Post-Closing Estimated Taxes
to which such final calculations relate), Seller Subsidiary shall remit
payment to Buyer of the lesser of (a) the Post-Closing Estimated Taxes
and (b) the Relevant Estimated Taxes, as determined hereunder for the
applicable period. Payments by Buyer and Seller Subsidiary pursuant to
this Section 9.12(i) shall be taken into account in determining amounts
due to Buyer (as a reduction therein), or amounts due from Buyer (as an
addition thereto), under paragraph (f) of this Section 9.12."
SECTION 19. New Section 9.12(k). A new Section 9.12(k) is hereby
added to read as follow:
"(k) If the Company Subsidiary's applications for a change in method of
accounting with respect to accounts receivable (to be effective beginning
with the 1998 taxable year of the Company Subsidiary) remain pending with
the Internal Revenue Service as of the
Closing Date (the "Pending Applications"), then both Seller Subsidiary
and Buyer shall have the right to participate in the conduct of all
subsequent matters relating to the Pending Applications (including, but
not limited to, discussions and negotiations with the Internal Revenue
Service and the filing of revisions to the Pending Applications to
reflect the transactions contemplated by this Agreement). In connection
therewith, Seller Subsidiary and Buyer shall keep each other reasonably
informed of any developments relating to the Pending Applications, and
shall provide such cooperation as may be reasonably requested by the
other party (including, but not limited to, providing copies of any
correspondence received by or submitted to the Internal Revenue Service,
granting access to the accountants and other professionals that were
involved in the preparation of the Pending Applications and executing
powers of attorney to authorize the designation of representatives
selected by the other party). All final decisions with respect to the
Pending Applications shall be made by Seller Subsidiary with the consent
of Buyer (which consent shall not be unreasonably withheld). Seller and
Seller Subsidiary acknowledge that, in the event that the Pending
Applications are withdrawn, denied or otherwise terminated after the
Closing Date, Buyer shall have the right, in its sole discretion, to
file, or to cause the Company or the Company Subsidiary to file, new
applications for a change in the Company Subsidiary's method of
accounting for accounts receivable (which new applications may or may not
be based upon the same facts and supporting information as the Pending
Applications)."
SECTION 20. Amendment to Section 11.02(a)(v). Section 11.02(a)(v) is
hereby amended by deleting the "." at the end of Section 11.02(a)(v) and
replacing it with "; or".
SECTION 21. New Section 11.02(a)(vi). Section 11.02(a) is hereby
amended by adding thereto a new Section 11.02(a)(vi) to read as follows:
"(vi) any Action, matter or claim (including, but not limited to,
medical professional liability) both (x) arising out of or relating to
the conduct or actions or failure to act prior to the Closing of ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ while working for or on behalf of Seller, Seller
Subsidiary, the Company or any other subsidiary or affiliate of Seller
and (y) relating to any actual or alleged effect on or the state of the
health (including emotional well-being) of patients of the Company or any
subsidiary of the Company (whether or not any such Action, matter or
claim is pending as of the Closing); provided that Seller shall not have
any liability hereunder for (1) consequential, punitive, indirect,
special or incidental damages incurred by any Buyer Indemnified Party
(including, without limitation, additional economic losses incurred by a
Buyer Indemnified Party as a result of a change in industry conditions or
practice or in applicable law or regulation) other than consequential,
punitive, indirect, special or incidental damages actually paid to any
third party by such Buyer Indemnified Party, (2) Losses related to
patient counseling, testing and/or treatment programs voluntarily offered
by a Buyer Indemnified Party, solely after the Closing Date, that are not
approved by Seller, (3) except to the extent such employees' services are
requested by Seller, employee compensation and overhead costs related to
time spent by a Buyer Indemnified Party and its employees in responding
to, or in assisting Seller in its management of, matters (other than
Actions or claims)
arising from ▇▇. ▇▇▇▇▇▇'▇ conduct and (4) employee compensation and
overhead costs related to time spent by a Buyer Indemnified Party and its
employees responding to any Action or claim related to ▇▇. ▇▇▇▇▇▇'▇
conduct."
SECTION 22. Amendment to Section 11.03(a)(iii). Section
11.03(a)(iii) is hereby amended by deleting "Assumed Liabilities" therefrom
and replacing it with "Assumed Non-U.S. Liabilities".
SECTION 23. Amendment to Section 12.02(b). (a) Section 12.02(b) is
hereby amended by deleting the reference to "Section 6.02" therefrom and
replacing it with "Section 6.03".
(b) Section 12.02(b) is hereby further amended by deleting the
reference to "Section 6.11(e)" therefrom and replacing it with "Section
6.11(d)".
SECTION 24. Amendment to Section 13.03. Section 13.03 is hereby
deleted in its entirety and replaced with a new Section 13.03 to read as
follows:
"This Agreement and the rights and obligations hereunder shall not be
assignable or trans ferable by Buyer, Seller or Seller Subsidiary (other
than by operation of law in connection with a merger, or sale of
substantially all the assets, of Buyer, Seller or Seller Subsidiary)
without the prior written consent of the other parties hereto; provided,
however, that Buyer may assign its right to purchase the Shares and the
Other Assets hereunder to a wholly owned subsidiary of Buyer without the
prior written consent of Seller or Seller Subsidiary; provided further,
that Buyer may assign its right to receive monetary indemnification (but
no other rights, including procedural rights or rights to control,
approve or participate in litigation or settlement negotiations) under
Article XI to a third party to the extent necessary or desirable to
obtain the Financing or any replacement financing following the Closing
without the prior written consent of Seller or Seller Subsidiary;
provided further, however, that no assignment shall limit or affect the
assignor's obligations hereunder. Any attempted assignment in violation
of this Section 13.03 shall be void."
SECTION 25. Amendment to Exhibit B. Exhibit B of the Agreement is
hereby deleted in its entirety and replaced with the Exhibit B containing the
following documents in the forms attached hereto:
Exhibit B-1: Category One Laboratory Data Access Agreement
Exhibit B-2: Category Three Laboratory Data Access Agreement
Exhibit B-3: Participation Agreement
Exhibit B-4: Encoder Letter Agreement
SECTION 26. Amendment to Exhibit C. Exhibit C of the Agreement is
hereby deleted in its entirety and replaced with the Exhibit C attached
hereto.
SECTION 27. Amendment to Exhibit E. Exhibit E of the Agreement is
hereby deleted in its entirety and replaced with the Exhibit E attached
hereto.
SECTION 28. New Exhibit F. A new Exhibit F to the Agreement is
hereby added, containing the following documents in the forms attached hereto:
Exhibit F-1: Copyright License Agreement
Exhibit F-2: Trademark License Agreement
Exhibit F-3: Copyright Assignment
Exhibit F-4: Patent Assignment
Exhibit F-5: Trademark Assignment
Exhibit F-6: Trademark Assignment
Exhibit F-7: Trademark Assignment
Exhibit F-8: Trademark Assignment
Exhibit F-9: Trademark Assignment
SECTION 29. New Exhibit G. A new Exhibit G containing the License
Agreement to the Agreement is hereby added in the form of Exhibit G attached
hereto.
SECTION 30. Interpretation. Seller and Buyer acknowledge that
earlier drafts of this Amendment contained proposed language that was not
included in this Amendment. Seller and Buyer agree that no evidentiary weight
or value regarding the intent of the parties hereto with respect to the
interpretation of the Agreement shall be attributed to the non-inclusion of
such language. After giving effect to this Amendment, all references in the
Agreement to the "date hereof", the "date of this Agreement" and any similar
reference shall continue to refer to February 9, 1999, unless otherwise
expressly provided in this Amendment.
SECTION 31. Effect on Agreement. Except as amended hereby, the
provisions of the Agreement are and shall remain in full force and effect.
SECTION 32. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State other than
Section 5-1401 of the New York General Obligations Law.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first written above.
SMITHKLINE ▇▇▇▇▇▇▇ PLC,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
QUEST DIAGNOSTICS
INCORPORATED,
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
With respect to the amendments to Articles IX,
XI and XIII only,
SMITHKLINE ▇▇▇▇▇▇▇
CORPORATION,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President