Exhibit 2.2
AMENDMENT NO. 1 TO MERGER AGREEMENT
THIS AMENDMENT NO. 1 TO MERGER AGREEMENT (this "Amendment No. 1"), dated
as of March 6, 2003, is being entered into by and among Cell Therapeutics, Inc.
a Washington corporation ("CTI"), PolaRx Biopharmaceuticals, Inc., a Delaware
corporation ("PolaRx") and Xxxxx X. Xxxxx, as representative of the former
shareholders of PolaRx ("PolaRx Representative").
WHEREAS, each of CTI and PolaRx are parties to that certain Merger
Agreement dated January 7, 2000 (the "Agreement");
WHEREAS, Section 6.5 of the Agreement provides that the Agreement may be
amended at any time by execution of an instrument in writing signed on behalf of
each of the parties thereto;
WHEREAS, PolaRx Biopharmaceuticals Acquisition Corp. was created solely
for the purpose of effecting the merger and upon consummation of the merger
merged with and into PolaRx and therefore no longer exists as a separate entity;
WHEREAS, each of CTI, PolaRx and the PolaRx Representative agree that
this Amendment No. 1 to the Agreement shall be considered in compliance with
Section 6.5 of the Agreement by virtue of the fact that PolaRx
Biopharmaceuticals Acquisition Corp. no longer exists and that the PolaRx
Representative serves the interests of the former shareholders of PolaRx;
WHEREAS, the parties desire to amend Section 1.4 of the Agreement,
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendment to the Agreement
1.1 Section 1.4 of the Agreement is hereby deleted and
replaced in its entirety by the following:
"1.4 The Merger Consideration. As of the Effective Time, as a result
of the Merger and without any other action on the part of the
stockholders, all of the outstanding shares of common stock, $0.001 par
value per share, of PBAC (the "PBAC Common Stock") shall be converted
into shares of common stock of the Surviving Corporation (the "PolaRx
Common Stock") and all of the shares of PolaRx outstanding immediately
prior to the Effective Time shall, at the Effective Time, by virtue of
the Merger and without any action on the part of the stockholders, be
automatically converted into the shares of CTI Common Stock (as
hereinafter defined) and additional consideration upon subsequent
closing dates, for aggregate consideration (the "Merger Consideration")
by virtue of the Merger and without any action on the part of the
stockholders and be converted into the right of such PolaRx Stockholders
to receive that portion of the Merger Consideration (as defined below)
set forth across from their names in Schedule 1 (the "PolaRx
Stockholders"). Fractional shares shall be rounded up or down to the
nearest whole number.
The Merger Consideration shall be:
(a) Two million (2,000,000) unregistered newly issued shares
of CTI common stock, no par value per share ("CTI Common
Stock"), to be issued and delivered to the PolaRx
Stockholders at the Effective Time;
(b) One million (1,000,000) unregistered newly issued shares
of CTI Common Stock, subject to stock splits, stock
dividends, reclassifications and reorganizations, to be
issued and delivered to the PolaRx Stockholders on or
before the second closing date, which shall be the
earlier of, (x) within thirty (30) days following the
first New Drug Application approved by the U.S. Food and
Drug Administration submitted by CTI or an affiliate or
sublicensee of CTI with respect to an Arsenic Product,
or (x) the day preceding the fifth anniversary of the
Closing Date (the earlier such date shall be referred to
herein as the "Second Closing");
(c) Two million (2,000,000) unregistered newly issued shares
of CTI Common Stock, subject to stock splits, stock
dividends, reclassifications and reorganizations, to be
issued and delivered to the PolaRx Stockholders at the
Second Closing;
(d) $4,000,000 in cash, to be paid and delivered to the
PolaRx Stockholders no later than March 31, 2003.
(e) (1) a number of unregistered newly issued shares of CTI
Common Stock having a Fair Market Value of five million
dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a
mixture of cash and stock under (1) and (2) above, at
the sole election of CTI, to be issued or paid and
delivered to the PolaRx Stockholders within thirty (30)
days following the end of the first calendar quarter in
which aggregate Net Sales of Arsenic Products sold by
CTI, affiliates and sublicensees of CTI equal or exceed
twenty million dollars ($20,000,000) for the previous
four (4) calendar quarters;
(f) Until the later of, (x) the last patent to expire
contained in the patent rights owned or licensed by
PolaRx and included in the PolaRx Assets, or (y) seven
(7) years following the first commercial sale of an
Arsenic Product by CTI, its sublicensees or affiliates;
within thirty (30) days following the end of every
calendar year in which Net Sales of Arsenic Products
sold by CTI, its sublicensees and affiliates exceed
forty million dollars ($40,000,000), CTI shall (1) issue
to the PolaRx Stockholders (or to an exchange fund or
escrow arrangement for the benefit of the PolaRx
Stockholders, which exchange fund or escrow agreement
shall be agreed to in writing by the PolaRx
Representative), a number of shares of CTI Common Stock
having a Fair Market Value equal to two percent (2%) of
Net Sales of Arsenic Products sold by CTI, its
sublicensees or affiliates during the previous calendar
year; (2) make a cash payment to the PolaRx Stockholders
(or to an exchange fund or
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escrow arrangement for the benefit of the PolaRx
Stockholders, which exchange fund or escrow agreement
shall be agreed to in writing by the PolaRx
Representative) equal to two percent (2%) of Net Sales
of Arsenic Products sold by CTI, its sublicensees or
affiliates during the previous calendar year, or (3) a
mixture of cash and stock under (1) and (2) above.
If at the time that any payment shall be required pursuant to this
Section 1.4, CTI does not have a class of common stock that is then
publicly traded on a national securities exchange, than any such payment
shall be made in cash in the applicable amount. Any issuances of stock
by CTI under Sections 1.4(e) and (f) shall be unlegended unless required
by law or issued to an affiliate."
2. Representation of PolaRx Representative. The PolaRx
Representative represents and warrants to CTI and PolaRx, jointly and severally,
as follows:
2.1 PolaRx Representative has all necessary power and
authority to execute and deliver this Amendment No. 1 and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Amendment No. 1 has been duly and validly executed and delivered by PolaRx
Representative and assuming due authorization, execution and delivery by CTI and
PolaRx, constitutes a legal and binding obligation of PolaRx Representative on
behalf of former PolaRx shareholders, enforceable against former PolaRx
Shareholders and PolaRx Representative.
3. Miscellaneous
3.1 The terms and provisions of the Agreement shall remain
in full force and effect as specifically modified by this Amendment No. 1.
3.2 It is a condition precedent to CTI's obligation to make
payments under Section 1.4 of this Amendment No. 1 that CTI receive from each
PolaRx stockholder an executed Form W-9 or its equivalent and any other
documentation delivered to the PolaRx stockholders by CTI necessary to process
payments or issuances to PolaRx stockholders.
3.3 This Amendment No. 1 may be executed in counterparts
each of which is deemed an original and all of which together constitute one and
the same instrument.
3.4 This Amendment No. 1 shall be construed in accordance
with, and governed in all respects by, the law of the State of Delaware, without
giving effect to the conflicts of laws provisions.
3.5 In the event that any provision of this Amendment No. 1,
or the application of any such provision to any person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Amendment No. 1, and the application of such
provision to persons or circumstances other than those as to which it is
determined to be invalid, unlawful, void or unenforceable, shall not be impaired
or otherwise affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
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3.6 This Amendment No. 1 and the Agreement together with all
exhibits and schedules constitute the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations or discussions, whether written or oral, among the
parties pertaining to the subject matter hereof. This Amendment No. 1 may not be
amended, modified, altered or supplemented other than by execution of an
instrument in writing signed on behalf of each of CTI, PolaRx and the PolaRx
Representative.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be effective as of the date first above written.
CELL THERAPEUTICS, INC.
/s/ Xxxxx. X. Xxxxxx
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By: Xxxxx X. Xxxxxx, M.D.
Title: President & Chief Executive Officer
POLARX BIOPHARMACEUTICALS, INC.
/s/ Xxxxx. X. Xxxxxx
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By: Xxxxx X. Xxxxxx, M.D.
Title: President
POLARX BIOPHARMACEUTICALS, INC.
REPRESENTATIVE
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
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