EXHIBIT 2.2
FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated
as of July 15, 2002 (this "First Amendment"), by and among Amgen Inc., a
Delaware corporation ("Parent"), AMS Acquisition Inc., a Washington corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), and Immunex Corporation,
a Washington corporation (the "Company").
WHEREAS, Parent, Merger Sub and the Company are parties to that certain
Amended and Restated Agreement and Plan of Merger dated as of December 16, 2001
(the "Merger Agreement");
WHEREAS, the Merger Agreement currently provides for the merger of Merger
Sub with and into the Company, with the Company surviving the merger as a
wholly-owned subsidiary of Parent (the "Reverse Subsidiary Merger");
WHEREAS, Section 6.15 of the Merger Agreement provides that in the event
that either of Xxxxxx & Xxxxxxx, counsel to Parent, or Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel to the Company, is unable to render its opinion to
the effect that the Reverse Subsidiary Merger will be treated for federal income
Tax purposes as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended, the structure of the Reverse
Subsidiary Merger shall be revised to provide for the merger of the Company with
and into Merger Sub, with Merger Sub surviving the merger as a wholly-owned
subsidiary of Parent (a "Forward Subsidiary Merger"), subject to the approval of
each of Parent and the Company; and
WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger
Agreement pursuant to this First Amendment to revise the structure of the
business combination as a Forward Subsidiary Merger.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this First Amendment and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
have the meaning given such terms in the Merger Agreement.
2. Recitals. The third recital of the Merger Agreement shall be amended and
restated in its entirety to read as follows:
"WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the
Company have approved the merger of the Company with and into Merger Sub (the
"Merger") upon the terms and subject to the conditions of this Agreement and in
accordance with the Business Corporation Act of the State of Washington (the
"WBCA");"
3. The Merger. Section 1.1 of the Merger Agreement shall be amended and
restated in its entirety to read as follows:
"Section 1.1. The Merger. Upon the terms and subject to satisfaction or
waiver of the conditions set forth in this Agreement, and in accordance with the
WBCA, at the Effective Time, the Company shall be merged with and into Merger
Sub. As a result of the Merger, the separate corporate existence of the Company
shall cease and Merger Sub shall continue as the surviving corporation of the
Merger (the "Surviving Corporation")."
4. Articles of Incorporation; Bylaws. Section 1.4(a) of the Merger
Agreement shall be amended and restated in its entirety to read as follows:
"(a) Articles of Incorporation. At the Effective Time, the Articles of
Incorporation of Merger Sub, as in effect immediately prior to the Effective
Time, shall be the Articles of Incorporation of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable Law, except
that Article I thereof shall be amended to read as follows: "The name of the
corporation is Immunex Corporation." Such articles shall not be inconsistent
with section 6.10."
5. Conversion of Securities. Section 2.1(c) of the Merger Agreement shall
be amended and restated in its entirety to read as follows:
"(c) Merger Sub. No shares of Merger Sub will be issued directly or
indirectly in the Merger and each share of common stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall remain outstanding
following the Effective Time."
6. Restructure of Transaction. Section 6.15 of the Merger Agreement shall
be amended and restated in its entirety to read as follows:
"In the event that either of Xxxxxx & Xxxxxxx, counsel to Parent, or
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, is unable to
render its opinion pursuant to Section 7.2(c) or Section 7.3(c), respectively,
the Company and Parent shall negotiate in good faith to revise the structure of
the business combination between the Company and Parent such that each of Xxxxxx
& Xxxxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP will be able to render
such opinion; provided, that no such revision to the structure of the Merger
shall (a) result in any change in the Merger Consideration, (b) be materially
adverse to the interests of Parent, the Company, Merger Sub, the holders of
shares of Parent Common Stock or the holders of shares of Company Common Stock
or (c) unreasonably impede or delay consummation of the Merger. If the structure
of the Merger is so revised, this Agreement shall be amended by the parties as
appropriate to give effect to the revised structure of the Merger with each
party executing a written amendment to this Agreement as necessary to reflect
the foregoing."
7. Disclosure Letter. The parties agree that Section 3.5 of the Company
Disclosure Letter shall be deemed amended as set forth on Schedule A.
8. Parties in Interest. Section 9.9 of the Merger Agreement shall be
amended and restated in its entirety to read as follows:
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"This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and their respective successors and assigns, and nothing in
this Agreement, express or implied, other than pursuant to Section 6.10, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement."
9. Counterparts. This First Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
10. Governing Law. This First Amendment and the transactions contemplated
hereby, and all disputes between the parties under or related to this First
Amendment or the facts and circumstances leading to its execution, whether in
Contract, tort or otherwise, shall be governed by and construed in accordance
with the Laws of the State of Delaware, applicable to contracts executed in and
to be performed entirely within the State, except that the provisions of the
WBCA shall govern the Merger.
11. Ratification and Reaffirmation of Merger Agreement. Except as hereby
expressly amended, the Merger Agreement shall remain unchanged.
12. Interpretation. In the event of any conflict between the provisions of
this First Amendment and the Merger Agreement, the provisions of this First
Amendment shall control.
[Signature Page Follows]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
First Amendment to be executed as of the date first written above by their
respective officers thereunto duly authorized.
AMGEN INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Senior Vice President, General Counsel and
Secretary
AMS ACQUISITION INC.,
a Washington corporation
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President, General Counsel and Secretary
IMMUNEX CORPORATION,
a Washington corporation
By: Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board, Chief Executive Officer
and President
[SIGNATURE PAGE - FIRST AMENDMENT]
