EXHIBIT 10.2
AMENDMENT NUMBER TWO TO THE
AGREEMENT AND PLAN OF MERGER
This Amendment Number Two (this "Amendment") to the Agreement and Plan of
Merger dated as of August 28, 1997 (the "Original Agreement") as amended
February 28, 1999 (the "Agreement") between Project Z Corporation ("Project Z")
and Avid Corporation ("Avid") is made as of this 24th day of March, 2000, by and
among Avid (including its capacity as successor to Project Z), Triangle
Pharmaceuticals, Inc. ("Triangle"), and the Securityholder Agent (as such term
is defined in the Reorganization Agreement referred to below) (the
"Securityholder Agent"), on behalf of and as attorney-in-fact for all of the
stockholders, optionholders and warrantholders of Avid immediately prior to the
merger of Project Z with and into Avid (the "Former Avid Stockholders").
Capitalized terms used herein which are not defined herein shall have the
definitions ascribed to them in the Reorganization Agreement (defined below).
RECITALS
A. Triangle, Project Z and Avid entered into an Agreement and Plan of
Reorganization dated as of June 30, 1997 (the "Original Reorganization
Agreement"), and as amended February 28, 1999 (the "Reorganization Agreement"),
which contained the terms for the merger of Project Z with and into Avid and
after which Avid would become a wholly-owned subsidiary of Triangle.
B. Avid and Project Z entered into the Original Agreement, pursuant to
which Project Z merged with and into Avid on August 28, 1997, and Avid became a
wholly-owned subsidiary of Triangle.
C. Avid (including its capacity as successor to Project Z), entered into
Amendment Number One to the Original Agreement, in connection with the extension
to thirty (30) months of the eighteen (18) month period set forth in Section
1.6(b)(ii)(B) of the Original Reorganization Agreement.
D. Triangle, Avid and the Securityholder Agent, on behalf of and as
attorney-in-fact for the Former Avid Stockholders, are concurrently herewith
entering into an amendment to the Reorganization Agreement (the "Reorganization
Amendment") (i) to extend further the thirty (30) month period set forth in
Section 1.6(b)(ii)(B) of the Reorganization Agreement after which, if Triangle
has not Initiated a Definitive Clinical Trial with the Lead Compound or elected
in writing to continue the development of the Lead Compound, the Securityholder
Agent will have the right to either exercise the Lead Compound Option, and (ii)
to amend certain other provisions of the Agreement as set forth in the
Reorganization Amendment.
E. Triangle, Avid (including its capacity as successor to Project Z) and
the Securityholder Agent desire to amend the Agreement to make it consistent
with the terms of the Reorganization Agreement as amended by the Reorganization
Amendment.
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained herein, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
9. AMENDMENTS TO AGREEMENT.
9.1 Article IV.A.2.b.(i). Article IV.A.2.b.(i) of the Agreement is
hereby amended and restated in its entirety as follows:
"(i) In the event that Parent, in its sole discretion, (x) Initiates
(as defined in Section 1.6(b)(iii) of the Reorganization Agreement) a
Definitive Clinical Trial (as defined in Section 1.6(b)(iii) of the
Reorganization Agreement) with the Lead Compound (as defined in Section
1.6(b)(iii) of the Reorganization Agreement), or (y) notifies the
Securityholder Agent (as defined in Section 7.2(g) of the Reorganization
Agreement) in a writing that specifically references Section 1.6(b)(ii)(A)
of the Reorganization Agreement of its election to continue the
development of the Lead Compound even if Parent has not Initiated a
Definitive Clinical Trial with the Lead Compound, Parent shall within
seventy-five (75) days thereafter make available to the Exchange Agent (as
defined in Section IV.E.1 below) for distribution pursuant to Section IV.E
below, 1,150,000 shares of Parent Common Stock."
9.2 Article IV.A.2.b.(ii). Article IV.A.2.b.(ii) of the Agreement is
hereby amended and restated in its entirety as follows:
"(ii) If neither of the conditions described in Section IV.A.2.b.(i)
above is satisfied on or prior to forty-eight (48) months after the
Closing Date and the Securityholder Agent elects not to exercise the Lead
Compound Option (as defined in Section 5.17 of the Reorganization
Agreement) within the thirty (30) day period set forth in Section 5.17 of
the Reorganization Agreement, Parent shall within seventy-five (75) days
thereafter make available to the Exchange Agent for distribution pursuant
to Section IV.E below, 100,000 shares of Parent Common Stock."
10. Third PAYMENT.
Triangle shall, on or before April 15, 2000, deliver 400,000 shares of
Triangle Common Stock (the "Third Payment") to the Escrow Agent of which that
number of shares to be reserved for the benefit of the holders of Assumed
Options and the holders of Assumed Warrants (the "Reserved Payment") shall be
held by the Escrow Agent, and the remainder shall be transferred promptly to the
Exchange Agent for distribution to each of the Former Avid Stockholders in
proportion to the aggregate number of shares of Parent Common Stock which such
holder would otherwise be entitled to receive from the aggregate of the First
Payment, the Second Payment and the Third Payment pursuant to Section 1.7 of the
Agreement by virtue of such holder's ownership of outstanding shares of Company
Capital Stock immediately prior to the Effective Time, assuming for the purposes
of such allocation that the holders of all Assumed Options and the holders of
all Assumed Warrants were the holders of the number of shares of the Company
Common Stock that would have been issued had all of the Assumed Options and all
of the Assumed Warrants been exercised in full immediately prior to the
Effective Time (assuming that the exercise price was paid in cash). No later
than seventy-five (75) days after delivery to the Escrow Agent of an Agent
Certificate, in form acceptable to Triangle, pursuant to Section
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1.7(d)(i) of the Agreement with respect to the distribution of the Third
Payment, the Third Payment less the Reserved Payment shall be distributed from
the Exchange Agent to the Former Avid Stockholders as provided in such Agent
Certificate. Triangle, the Escrow Agent, and the Exchange Agent shall be
entitled to rely without investigation on the accuracy of the information set
forth in such Agent Certificate.
11. EFFECT OF AMENDMENT.
Except as amended and set forth above, the Agreement shall continue in
full force and effect. In the event of any conflict between the terms of the
Agreement and the terms of this Amendment, the terms of this Amendment shall
govern and control.
12. FURTHER ASSURANCES.
The parties agree to execute such further instruments, agreement and
documents and to take such further action as may reasonably be necessary to
carry out the intent of this Amendment.
13. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each which
will be deemed an original, and all of which together shall constitute one
instrument. This Amendment shall become effective when executed and delivered by
Triangle, Avid and a majority of the individuals constituting the Securityholder
Agent.
14. SEVERABILITY.
If one or more provisions of this Amendment are held to be unenforceable
under applicable law, such provision shall be excluded from this Amendment and
the balance of the Amendment shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
15. GOVERNING LAW.
This Amendment shall be governed by and construed under the laws of the
State of Delaware regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
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This Amendment is hereby executed as of the date first above written.
TRIANGLE: TRIANGLE PHARMACEUTICALS, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Operating Officer
AVID: AVID CORPORATION, a Pennsylvania
corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SECURITYHOLDER AGENT:
--------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
[SIGNATURE PAGE TO AMENDMENT NUMBER TWO TO
THE AGREEMENT AND PLAN OF MERGER]
