EXHIBIT 2.1
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EXECUTION COPY
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to the Agreement and Plan of Merger (the "Amendment") is
made and entered into as of November 8, 1999, by and among V.I. Technologies,
Inc. ("Vitex"), a Delaware corporation, Pentose Pharmaceuticals, Inc.
("Pentose"), a Delaware corporation, and certain stockholders of Pentose
identified on the signature page hereto (the "Stockholders").
WHEREAS, Vitex, Pentose and the Stockholders entered into that certain
Agreement and Plan of Merger, dated as July 28, 1999 (the "Agreement"), and
desire to amend the Agreement as provided herein. Capitalized terms used herein
and not defined shall have the meanings set forth in the Agreement.
WHEREAS, the parties acknowledge that such parties are proceeding with the
Merger, in consideration of and reliance upon, among other things, the parties'
agreement to perform the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Amendment hereby agree as follows:
1. CONVERSION OF STOCK.
Section 1.06(a) of the Agreement is hereby amended and restated in its
entirety to read as follows:
(a) Conversion of Securities. The "Merger Consideration" shall equal
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thirty-four percent (34%) of the issued and outstanding shares of Vitex Common
Stock immediately after the Effective Time, giving effect to the issuance of
shares of such stock pursuant to this Section 1.06(a) (the "Merger
Consideration"). At the Effective Time, each share of Pentose Common Stock and
of Pentose Preferred Stock (the "Shares") shall be entitled to receive the
number of validly issued, fully paid and nonassessable shares of Common Stock of
Vitex, $0.01 par value per share ("Vitex Common Stock") for each Share (each, an
"Exchange Ratio"), as follows:
(i) For each share of Pentose Common Stock, the Exchange Ratio
shall be the Merger Consideration multiplied by 0.29595 and divided by
the number of shares of Pentose Common Stock outstanding at the
Effective Time;
(ii) For each share of Pentose Series A Preferred Stock, the
Exchange Ratio shall be the Merger Consideration multiplied by 0.42056
and divided by the number of shares of Pentose Series A Preferred
Stock outstanding at the Effective Time; and
(iii) For each share of Pentose Series B Preferred Stock, the
Exchange Ratio shall be the Merger Consideration multiplied by 0.28349
and divided by the number of Shares of Pentose Series B Preferred
Stock outstanding at the Effective Time.
For example, if the aggregate number of shares of Vitex Common Stock
outstanding immediately prior to the Merger is 12,508,204, and the numbers of
shares of Pentose Common and Preferred Stock outstanding immediately prior to
the Merger are as set forth in Section 2.02 of the Agreement, then the Merger
Consideration and the Exchange Ratios would be as follows:
Merger Consideration: 12,508,204 x = 0.66x
x = 18,951,825
0.34x = 6,443,621
Common Stock Exchange Ratio 6,443,621 x 0.29595 = 0.48936
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3,896,870
Series A Preferred Stock
Exchange Ratio: 6,443,621 x 0.42056 = 0.60221
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4,500,000
Series B Preferred Stock
Exchange Ratio: 6,443,621 x 0.28349 = 0.77504
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2,356,903
All calculations pursuant to this Agreement shall be rounded to the nearest
one-hundred thousandth (.00001), except for the calculation of Merger
Consideration, which shall be rounded up to the nearest whole number.
2. PENTOSE REPRESENTATIONS AND WARRANTIES AND DISCLOSURE SCHEDULES.
(a) The number of outstanding options under the Pentose Stock Option Plan,
as disclosed in Section 2.02 of the Merger Agreement shall be corrected to read
978,828 shares, to reflect the correction described in clauses (a)(i) and (iii)
on Schedule I hereto.
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(b) The Pentose Disclosure Schedule shall be modified as set forth on
Schedule I hereto.
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3. VITEX REPRESENTATIONS AND WARRANTIES; COVENANTS. Notwithstanding
anything to the contrary included in the Merger Agreement including, without
limitation, Sections 5.12 and 7.01(e) thereof, Vitex shall file a Notification
Form for Listing of Additional Shares together
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with the applicable fee covering Vitex Common Stock to be issued in the Merger
with Nasdaq within five (5) business days following the Effective Time.
4. SEVERABILITY. If any provision of this Amendment is deemed to be or
becomes invalid, illegal or unenforceable in any respect in any jurisdiction,
(a) such provision will be deemed amended to conform to applicable laws of such
jurisdiction so as to be valid and enforceable; (b) the validity, legality and
enforceability of such provision will not in any way be affected or impaired
thereby in any other jurisdiction; and (c) the remaining provisions of this
Amendment shall continue in force without being impaired or invalidated in any
way.
5. FULL FORCE AND EFFECT. Except as specifically amended by this
Amendment, the terms and conditions of the Agreement shall remain in full force
and effect.
6. SECTION HEADINGS. The descriptive section headings herein have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Amendment.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Agreement and Plan of Merger as of the date first written above.
PENTOSE PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
V.I. TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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AMPERSAND SPECIALTY MATERIALS
AND CHEMICAL III LIMITED PARTNERSHIP
BY: ASMC-III MANAGEMENT COMPANY LIMITED
PARTNERSHIP
BY: ASMC-III MCLP, LLP, ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
AMPERSAND SPECIALTY MATERIALS
AND CHEMICAL III COMPANION FUND
LIMITED PARTNERSHIP
BY: ASMC-III MANAGEMENT COMPANY LIMITED
PARTNERSHIP
BY: ASMC-III MCLP, LLP, ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
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