Exhibit 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION AGREEMENT
THIS AMENDMENT NO. 1 is entered into as of January 9, 2003 (this
"AMENDMENT"), by and among CardioTech International, Inc., a Massachusetts
corporation ("PARENT"); Xxxx Acquisition Corp., a Delaware corporation ("MERGER
SUB") and wholly-owned subsidiary of Parent; and Xxxx Biomedical, Inc., a
California corporation (the "COMPANY" and, together with Parent and Merger Sub,
the "PARTIES"), with respect to that certain Agreement and Plan of Merger and
Reorganization, dated as of October 25, 2002 (the "AGREEMENT"), among the
Parties. Capitalized terms used but not otherwise defined herein are defined in
the Agreement.
WHEREAS, the Parties have determined that it is desirable to amend the
Agreement, effective as of the date of this Amendment, to (1) change the Closing
Date deadline from January 31, 2003, as specified in Section 7.1(a)(ii) of the
Agreement, to April 11, 2003, and (2) change the Xxxx shareholders meeting
deadline from on or before January 21, 2003, as specified in Section 7.1(a)(iii)
of the Agreement, to on or before March 5, 2003.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby amend the Agreement as
follows:
1. AMENDMENT TO SECTIONS 7.1(a)(ii) AND 7.1(a)(iii). Effective January
9, 2003, Sections 7.1(a)(ii) and 7.1(a)(iii) of the Agreement are hereby amended
in their entirety to read as follows:
(ii) by either Parent or the Company, if (A) the Closing shall not
have occurred on or before April 11, 2003; provided that the right to terminate
this Agreement under this Section 7.1(a)(ii) shall not be available to any party
whose action or failure to act has been the cause of the failure of the Merger
to occur on or before such date and such action or failure to act constitutes a
breach of this Agreement, (B) any permanent injunction or other order of a court
or other competent authority preventing the consummation of the Merger shall
have become final and nonappealable, or (C) if any required approval of the
shareholders of the Company or Parent shall not have been obtained by reason of
the failure to obtain the required votes at either the Company Shareholders
Meeting or Parent Shareholders Meeting or at any adjournment thereof;
(iii) by Parent, if (A) the Company shall materially breach any
representation, warranty, obligation or agreement hereunder (other than a breach
of Section 4.3(a) hereof which is specifically addressed in subsection (v) below
or a breach which has not had, and would not reasonably be expected to result
in, a Company Material Adverse Effect) and such breach shall
not have been cured within twenty (20) business days of receipt by the Company
of written notice of such breach (describing the details of such breach)
provided that the right to terminate this Agreement by Parent under this Section
7.1(a)(iii)(A) shall not be available to Parent where Parent is at that time in
breach of this Agreement, (B) the Board of Directors of the Company shall have
withdrawn or modified its recommendation of this Agreement or the Merger in a
manner adverse to Parent or recommended, endorsed, accepted or agreed to a
Takeover Proposal or shall have resolved to do any of the foregoing, (C) the
Board of Directors of the Company shall have publicly announced a rejection of a
Takeover Proposal, but failed to give Parent a written reaffirmation of its
recommendation of this Agreement, the Merger and the other transactions
contemplated hereby within five (5) business days of Parent's request thereof
following the rejection of such Takeover Proposal (the "REAFFIRMATION"), (D) a
Trigger Event is commenced (other than by Parent or an affiliate of Parent) and
the Board of Directors of the Company (x) recommends that the shareholders of
the Company tender their shares in such tender or exchange offer; or (y) within
ten (10) days after such tender or exchange offer, fails to recommend against
acceptance of such offer or takes no position with respect to the acceptance of
such Trigger Event and fails to deliver to Parent a Reaffirmation within five
(5) business days of Parent's request therefore; or (E) for any reason (other
than as the result of the failure of Parent to perform its obligations under
this Agreement), the Company fails to call and hold the Company Shareholders
Meeting by March 5, 2003;
2. AUTHORIZATION. Each Party hereby represents and warrants that it is
authorized to enter into this Amendment.
3. FULL FORCE AND EFFECT. Except as specifically provided in this
Amendment, no other amendments, revisions or changes are made to the Agreement.
The Agreement, as amended by this Amendment, shall remain in full force and
effect.
4. GOVERNING LAW. This Amendment shall be governed by, and construed
and enforced in accordance with, the provisions governing the Agreement.
5. FACSIMILES; COUNTERPARTS. Facsimile transmission of any signed
original document and/or retransmission of any signed facsimile transmission
will be deemed the same as delivery of an original. At the request of any Party,
the Parties shall confirm facsimile transmission by signing a duplicate original
document. This Amendment may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute but one and the same
instrument.
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signature page follows.]
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The undersigned, being authorized representative of the Parties, hereby
execute and deliver this Amendment No. 1 effective as of the date first written
above.
THE COMPANY:
Xxxx Biomedical, Inc.,
a California corporation
By: ____________________________
Name: __________________________
Title: _________________________
PARENT:
CardioTech International, Inc.,
a Massachusetts corporation
By: ____________________________
Name: __________________________
Title: _________________________
MERGER SUB:
Xxxx Acquisition Corp.,
a Delaware corporation
By: ____________________________
Name: __________________________
Title: _________________________
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