AMENDMENT NO. 1 TO
Exhibit 2.2
AMENDMENT
NO. 1 TO
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is
made and entered into as of December 20, 2007 among VAXGEN,
INC., a Delaware corporation (“Parent”), TLW MERGER
SUB, INC., a Delaware corporation wholly-owned by Parent
(“Merger Sub I”), TLW, LLC, a Delaware limited
liability company wholly-owned by Parent (“Merger Sub
II”), and RAVEN BIOTECHNOLOGIES, INC., a Delaware
corporation (“Raven”).
RECITALS
A. The parties hereto entered into an Agreement and Plan of
Merger dated as of November 12, 2007 (the “Merger
Agreement”), pursuant to which the parties have agreed
to effect (1) a merger of Merger Sub I with and into Raven
(“Merger I”) in accordance with the Delaware
General Corporation Law, and (2) immediately following the
effectiveness of Merger I, a merger of Raven with and into
Merger Sub II in accordance with the Delaware Limited
Liability Company Act (“Merger II,” and
together with Merger I, the
“Transaction”). Upon consummation of the
Transaction, Raven will cease to exist and Merger Sub II
will succeed to all of Raven’s business, assets and
liabilities.
B. The parties hereto wish to amend the Merger Agreement
for the limited purposes set forth herein.
C. Pursuant to Section 9.4 of the Merger Agreement,
the Merger Agreement may be amended by the undersigned by action
taken by or on behalf of their respective Boards of Directors at
any time prior to the Effective Time of Merger I by an
instrument executed by each of the parties to the Merger
Agreement.
D. The undersigned are each party to the Merger Agreement.
E. Certain capitalized terms used in this Amendment
No. 1 to the Merger Agreement (the
“Amendment”) shall have the meaning given them
in the Merger Agreement, unless the context requires otherwise.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants,
promises and representations set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Amendment of Merger Agreement
1.1 Modification of Representation, Covenants,
Conditions and Miscellaneous Provisions Regarding Listing of
Common Stock of Parent.
(a) The first sentence of Section 5.1 of the Merger
Agreement is hereby deleted in its entirety and replaced by the
following:
“As promptly as practicable after the execution of this
Agreement, Parent shall use commercially reasonable efforts to
file an application for relisting with Nasdaq or listing or
quotation on an Approved Market.”
(b) Section 5.12 of the Merger Agreement is hereby
deleted in its entirety and replaced by the following:
“5.12 Listing of Parent Common
Stock. Parent shall reserve
31,961,528 shares of Parent Common Stock for issuance in
connection with Merger I. Parent shall use commercially
reasonable efforts to cause the shares of Parent Common Stock,
including the shares of Parent Common Stock to be issued in
Merger I, to be
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approved for relisting on Nasdaq or listing or quotation on an
Approved Market at or prior to the Effective Time of Merger
I.”
(c) Section 6.1(b) of the Merger Agreement is hereby
deleted in its entirety and replaced by the following:
“(b) Stockholder
Approval. This Agreement shall have been
approved and adopted, and Merger I shall have been approved and
adopted, by the requisite vote, under applicable law, by the
stockholders of Raven and Parent, respectively.”
(d) Section 6.1(d) of the Merger Agreement is hereby
deleted in its entirety and replaced by the following:
“(d) Listing. The Parent
Common Stock shall have been listed or approved for quotation on
an Approved Market, and the Parent Common Stock to be issued in
connection with Merger I shall have been approved for listing,
subject to notice of issuance, or quotation on such Approved
Market.”
(e) Section 8.3(c) of the Merger Agreement is hereby
deleted in its entirety and replaced by the following
“(c) All indemnification claims by Parent
Indemnified Persons other than for fraud, willful misconduct or
intentional or reckless misrepresentation, shall be limited to
the Parent Escrow Fund and shall be satisfied by the surrender
of shares of Parent Common Stock from the Escrow Fund, valued at
the fair market value of such shares as of the Effective Time of
Merger I, based on (i) the average closing price of a
share of Parent Common Stock on the principal national
securities exchange on which the Parent Common Stock is listed
or admitted to trading over the ten (10) trading days
ending on the trading day prior to the Effective Time of Merger
I; (ii) if the Parent Common Stock is not listed or
admitted to trading on any national securities exchange, the
average last sale price of a share of Parent Common Stock as
reported on an established automated over-the-counter trading
market, including the “Pink Sheets” or any similar
quotation system over the ten (10) trading days ending on
the trading day prior to the Effective Time of Merger I; or
(iii) in case no reported sale takes place, the average of
the closing bid and asked prices, as furnished by any two
members of the National Association of Securities Dealers, Inc.
jointly selected by Parent and Raven for that purpose over the
ten (10) trading days ending on the trading day prior to
the Effective Time of Merger I. All indemnification claims by
Stockholder Indemnified Persons other than for fraud, willful
misconduct or intentional or reckless misrepresentation, shall
be limited to the value of ten percent (10%) of the shares to be
issued as Merger Consideration as of the Closing.
(f) Section 9.2 of the Merger Agreement is hereby
amending by inserting the following subsection (e):
“(e) ‘Approved
Market’ means any United States national
securities exchange or the OTC Bulletin Board.”
ARTICLE II
Additional Provisions
2.1 Entire Agreement and
Modification. Without limiting any of the
provisions of Section 9.8 of the Merger Agreement, the
Merger Agreement, as amended by this Amendment, constitutes the
entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof.
2.2 Counterparts. This
Amendment may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed
by each of the parties and delivered to the other party, it
being understood that all parties need not sign the same
counterpart.
2.3 Headings. The Section headings
contained in this Amendment are inserted for convenience only
and shall not affect in any way the meaning or interpretation of
this Amendment.
2.4 Severability. If any term or
other provision of this Amendment is invalid, illegal or
incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Amendment
shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions
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contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Amendment so
as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized respective
officers as of the date first written above.
VAXGEN, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and CEO
TLW MERGER SUB, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and CEO
TLW, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and CEO
RAVEN BIOTECHNOLOGIES, INC..
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: CEO
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