AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this Amendment) is made and entered into as of August 17, 2020, by and among ADURO BIOTECH, INC., a Delaware corporation (Parent), ASPIRE MERGER SUB, INC., a Delaware corporation and wholly owned subsidiary of Parent (Merger Sub), and CHINOOK THERAPEUTICS U.S., INC., a Delaware corporation (the Company). Capitalized terms used and not defined herein shall have the respective meanings given to such terms in the Merger Agreement (as defined below).
WHEREAS, Parent, Merger Sub and the Company entered into an Agreement and Plan of Merger and Reorganization (the Merger Agreement), dated as of June 1, 2020, pursuant to which, among other things, Merger Sub will merge with and into the Company (the Merger), on the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the General Corporation Law of the State of Delaware. Upon consummation of the Merger, Merger Sub will cease to exist and the Company will become a wholly owned subsidiary of Parent;
WHEREAS, Section 10.2 of the Merger Agreement provides that the Merger Agreement may be amended with the approval of the respective Boards of Directors of the Company, Merger Sub and Parent at any time, subject to applicable stockholder approvals, and may not be amended except by an instrument in writing signed on behalf of each of the Company, Merger Sub and Parent; and
WHEREAS, the parties hereto desire to amend the terms of the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Amendment and in the Merger Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Each reference to the Note Purchase Agreement in the Agreement is hereby deleted and replaced with a reference to the Subscription Agreement. Each reference to the Company Convertible Notes is hereby deleted.
2. Recital B of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
The Parties intend that the Merger (defined below) qualify as a reorganization within the meaning of Section 368(a) of the Code.
3. Recital K of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
Immediately prior to the execution and delivery of the Amendment, dated as of August 17, 2020, to this Agreement, certain investors have executed a Subscription Agreement among the Company and the Persons named therein (representing an aggregate commitment no less than the