EXHIBIT 2.2
AMENDMENT NO. 1 TO RESTATED
AGREEMENT AND PLAN OF ACQUISITION
This Amendment No. 1 to Restated Agreement and Plan of Acquisition
(this "Amendment") is entered into as of January 8, 1999 by and among Peptide
Therapeutics Group plc ("Parent"), Peach Acquisition Corp. ("Merger Sub") and
OraVax, Inc. ("Seller"). Capitalized terms not otherwise defined herein shall
have the meanings given to them in that certain Agreement and Plan of
Acquisition dated as of November 10, 1998 among Parent, Merger Sub and Seller
(as restated, the "Merger Agreement").
WHEREAS, Parent, Merger Sub and Seller have entered into the Merger
Agreement pursuant to which Seller shall be acquired by Parent through a merger
of Merger Sub with and into Seller; and
WHEREAS, Parent, Merger Sub and Seller desire to amend the Merger
Agreement as set forth herein pursuant to Section 9.5 thereto;
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
1. Section 1.6(a) of the Merger Agreement is hereby amended to read in
its entirety as follows:
"1.6 CONVERSION OF STOCK
(a) At the Effective Time, by virtue of the Merger
and without any action on the part of Parent, Merger Sub or Seller:
(i) All shares of common stock, $0.001 par
value per share, of Seller (the "Seller Common Stock") outstanding immediately
prior to the Effective Time, other than (A) shares held by Seller as treasury
stock or shares held by any Seller Subsidiary (as defined in Section 2.4) and
shares held by Parent or its affiliates and (B) Dissenting Shares (as defined in
Section 1.9), shall be converted into and become the right to receive, in the
aggregate, that number (subject to payment of cash in lieu of fractional shares
as provided in Section 1.11) of ordinary shares, nominal value of 10 xxxxx per
share, of Parent ("Parent Common Stock"), determined by dividing (x) the Common
Stock Consideration (as defined below) by (y) the Market Value (as defined
below) of a share of Parent Common Stock. The "Common Stock Consideration" shall
mean $15,000,000 less the sum of (A) $2,953,334 (the amount an affiliate of
Parent paid on or about November 10, 1998 to acquire approximately 95% of the
then outstanding shares of Seller Preferred Stock), (B) amounts payable by
Parent pursuant to Section 1.6(a)(ii), provided, however, no deduction shall be
made for payments pursuant to Section 1.6(a)(ii) with respect to shares of
Parent Preferred Stock which Parent or its affiliates acquired on or about
November 10, 1998 and subsequently transferred, (C) the excess of (x) the number
of shares of Seller Common Stock represented by each Seller Option and Seller
Common Warrant multiplied by the Conversion Ratio less (y) the exercise price
for such shares for which
(x) exceeds (y) (as such terms are hereinafter defined) and (D) all amounts paid
or payable pursuant to Section 1.7(b) or otherwise paid or payable by Parent to
acquire Seller Preferred Warrants. The Common Stock Consideration shall be
reduced by the consideration that would otherwise be allocable to Dissenting
Shares if the holders thereof had not properly exercised rights under the DGCL.
The Common Stock consideration shall be increased by the percentage by which (x)
the number of shares of Seller Common Stock outstanding at the Effective Time
less (1) shares held by Seller as treasury stock, (2) shares held by any Seller
Subsidiary, (3) shares held by Parent or its affiliates and (4) Dissenting
Shares exceeds (y) the number of shares of Seller Common Stock outstanding at
the Effective Time less (1) shares held by Seller as treasury stock, (2) shares
held by any Seller Subsidiary, (3) shares held by Parent or its affiliates, (4)
Dissenting Shares and (5) without double counting, the number of shares of
Seller Common Stock held by third parties who acquired those shares, directly or
indirectly, from Parent or its affiliates, including by conversion of Seller
Preferred Stock acquired, directly or indirectly, from Parent or its affiliates.
(ii) Each share of Seller 6% Convertible
Preferred Stock ("Seller Preferred Stock") which has not been converted into
Seller Common Stock prior to the Effective Time, other than shares of Seller
Preferred Stock held by Parent or its affiliates, shall be converted into the
greater of (x) the right to receive in cash $1,090.00 (the "Per Share Preferred
Stock Consideration") plus accrued but unpaid dividends and (y) the Liquidation
Preference pursuant to the terms of the Seller Preferred Stock.
(iii) All shares of Seller Common Stock held
at the Effective Time by Seller as treasury stock or by a Seller Subsidiary, and
all shares of Seller Preferred Stock and Seller Common Stock held at the
Effective Time by Parent or its affiliates, shall be cancelled and no payment
shall be made with respect thereto.
(iv) All Dissenting Shares shall be handled
in accordance with Section 1.9.
(v) Each share of common stock of Merger
Sub, $0.01 par value per share, outstanding immediately prior to the Effective
Time shall be converted into and become one outstanding fully paid and
nonassessable share of common stock of the Surviving Corporation."
2. Except as amended hereby, the Merger Agreement shall remain
unchanged and shall remain in full force and effect.
3. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective duly authorized representatives as of the date
first above written.
PEPTIDE THERAPEUTICS GROUP PLC
By: /S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Finance Director
PEACH ACQUISITION CORP.
By: /S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Treasurer
ORAVAX, INC.
By: /S/XXXXX XXXXXX
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Xxxxx Xxxxxx
President & CEO
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