EXHIBIT 2.2
FIRST AMENDMENT TO THE AGREEMENT
AND PLAN OF MERGER
THIS FIRST AMENDMENT is to that certain AGREEMENT AND PLAN OF MERGER, dated
March 12, 2000, (the "Merger Agreement") by and among ELIXIS CORPORATION, a
Washington corporation ("Target"), DATA CRITICAL CORPORATION, a Delaware
corporation ("Parent") and XXXXXXXXXXXX.XXX, INC., a Delaware Corporation and
wholly-owned subsidiary of Parent ("Subsidiary"). Capitalized terms not defined
herein shall have the meaning proscribed to them in the Merger Agreement.
WHEREAS, Target, Parent and Subsidiary have previously executed the Merger
Agreement by which Target will merge into Subsidiary in exchange solely for
stock of Parent (other than cash paid for fractional shares) pursuant to a
conversion formula to be set forth in the Plan of Merger. The Merger Agreement
provided that all Stock Option Plans of Target would be Cancelled prior to the
Effective Time of the Merger; and
WHEREAS, Target, Parent and Subsidiary now desire to amend the Merger
Agreement to provide that shares of Target's common stock issued or issuable
upon the exercise by holders of outstanding stock options granted pursuant to
Target's 1998 and 1999 Stock Option Plans (the "Plans") will be canceled prior
to the Effective Date and holders of such options will be given cash
consideration at or shortly after the Effective Date equal to the value of such
cancelled shares as of the Effective Date, all as determined pursuant to Section
10(b) of the Plan of Merger; and
WHEREAS, in connection with the foregoing amendment and for the purpose of
closing the Merger, Xx. Xxxxxxxx Gold, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Dr.
Xxxxxx Xxxxx, Jr. (the "Founders") have agreed not to exercise their respective
stock options granted under the Plans, thus forfeiting the shares of the
Target's common stock that would have been issuable to them upon exercise, as
well as the cash consideration to be paid in connection with the cancellation of
such shares; and
WHEREAS, in consideration for not exercising the stock options as described
above, the Founders have agreed to accept additional unvested options to
purchase Parent common stock, which will be subject to the same vesting schedule
applicable to the stock options already offered to them by Parent in connection
with their new employment agreements with Subsidiary;
The parties therefore agree that the Merger Agreement shall be amended as
follows:
1. Paragraph 2.2 of the Merger Agreement shall be deleted in its entirety and a
new Paragraph 2.2 shall be inserted as follows:
2.2 Conversion of Shares
Each share of Target Common Stock and Target Preferred Stock issued and
outstanding immediately prior to the Effective Date (the "Target Shares")
shall, without any action on the part of Subsidiary, Parent or any holder
of such shares, be converted by the merger into an
amount of Parent Common Stock represented by 210,000 divided by the Target
Shares, except that shares of Target Common Stock issued upon exercise of
stock options will be cancelled and the holders of such shares shall
receive cash consideration as of or shortly after the Effective Date equal
to the value of such Target Common Stock as of the Effective Date, as
determined pursuant to Section 10 of the Plan of Merger. In connection with
the foregoing, Xxxxxxxx Gold, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxxxx
Xxxxx, Jr. have agreed not to exercise their stock options to purchase
Target Common Stock, which options will terminate as of the Effective Date,
as described in Section 8.10.
2. Except as specifically amended hereby, the Merger Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
of the Merger Agreement effective as of the 30th day of March, 2000.
ELIXIS CORPORATION,
a Washington corporation
By: /s/ Xxxxxxxx X. Gold, M.D.
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Name: Xxxxxxxx X. Gold, M.D.
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Title: President/CEO
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DATA CRITICAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President/CEO
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XXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President/CEO
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