Exhibit 2.2
AMENDMENT No. 5 (this "Amendment"), dated as of August 16, 2005, to the
Share Exchange Agreement dated as of March 15, 2005 and as amended by Amendment
No. 1 dated as of March 15, 2005, Amendment No. 2 dated as of April 21, 2005,
Amendment No. 3 dated as of May 31, 2005 and Amendment No. 4 dated as of June
30, 2005 (the "Agreement"), by and among EPIMMUNE INC., a Delaware corporation
(the "Issuer"), and the shareholders of IDM S.A., a societe anonyme organized
under the laws of France (the "Company"), listed on Exhibit A attached thereto
(the "Principal Company Shareholders"). Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Agreement.
RECITALS:
A. The Issuer and the Principal Company Shareholders have entered into the
Agreement;
B. The Principal Company Shareholders have appointed Xxxxxx Xxxxx, as
Shareholder Representative, and have empowered her to execute amendments to the
Agreement which may be necessary or desirable to complete the Agreement; and
C. The Issuer and the Shareholder Representative, on behalf of the
Principal Company Shareholders, have agreed to enter into this Amendment No. 5
to the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the rights and
obligations contained herein, and intending to be legally bound hereby, the
Issuer and the Principal Company Shareholders represented by the Shareholder
Representative hereby agree as follows:
Section 1. Recitals. Recital C of the Agreement shall be deleted and
replaced in its entirety by the following paragraph:
C. The Issuer Board has unanimously (i) approved this Agreement and
the transactions contemplated by this Agreement, including the change of
the corporate name of the Issuer in accordance with Section 6.11(c) of
this Agreement (the "Issuer Name Change") and (ii) resolved to recommend
that the stockholders of the Issuer vote to approve: (A) the issuance of
shares of Issuer Common Stock to the shareholders and/or warrantholders of
the Company (1) in exchange for Company Shares in accordance with Section
1.02 or 1.09 and (2) in exchange for Company Warrants in accordance with
Section 1.08(a), in each case, pursuant to the terms of this Agreement
(the "Share Exchange"); (B) the amendment of the Amended and Restated
Certificate of Incorporation of the Issuer (the "Issuer Certificate of
Incorporation") to increase the authorized capital stock of the Issuer
(the "Issuer Capital Stock Increase") and effect a reverse split of the
Issuer Common Stock and the Issuer Preferred Stock (the "Issuer Reverse
Stock Split") in accordance with Section 6.11(d) of this Agreement; (C)
the increase in the shares available for issuance under the Issuer's 2000
Stock Plan in accordance with Section 6.14 of this Agreement (the "Issuer
Stock Option Plan
Amendment"); (D) the adoption of the Epimmune Option Liquidity Plan and
the issuance of shares of Issuer Common Stock to the holders of Company
Stock Options pursuant to such Option Liquidity Plan (the "Option
Liquidity Share Issuance"); (E) the increase in the shares available for
issuance under the Issuer's 2001 Employee Stock Purchase Plan in
accordance with Section 6.14 of this Agreement (the "Issuer ESPP
Amendment"); and (F) the adoption of the Issuer French Employee Stock
Option Sub Plan (the "Issuer French Stock Option Plan"), substantially in
the form of Exhibit C attached hereto, which shall be in the form of a sub
plan to the Issuer's 2000 Stock Plan (the transactions specified in
clauses (A) through (F) above are sometimes referred to herein
collectively as the "Issuer Transactions");
Section 2. Board Approval; Vote Required. Section 4.18(b) of the
Agreement shall be deleted and replaced in its entirety by the following
paragraph:
(b) The only vote of the holders of any class or series of capital
stock of the Issuer necessary to approve this Agreement, any of the Issuer
Transactions or any other Transaction to which the Issuer is a party is
(i) with respect to the Share Exchange, the Issuer Stock Option Plan
Amendment, the Option Liquidity Share Issuance, the Issuer ESPP Amendment,
the adoption of the Issuer French Stock Option Plan and the adoption of
the Issuer French ESPP (as defined below), the approval of each such
transaction by the affirmative vote of the holders of a majority of the
then outstanding shares of Issuer Common Stock and Issuer Preferred Stock
(on an as-converted basis and voting as a single class with the Issuer
Common Stock) present in person or represented by proxy and entitled to
vote at the Issuer Stockholders' Meeting, and, with respect to the Issuer
Capital Stock Increase and the Issuer Reverse Stock Split, the approval of
each such transaction by the affirmative vote of the holders of a majority
of the then outstanding shares of Issuer Common Stock and Issuer Preferred
Stock (on an as-converted basis and voting as a single class with the
Issuer Common Stock) entitled to vote at the Issuer Stockholders' Meeting.
Section 3. Corporate Matters. Section 6.11(c) of the Agreement shall
be deleted and replaced in its entirety by the following paragraph:
(c) The Issuer shall take all action as may be necessary to cause
the corporate name of the Issuer to be renamed, effective as of the
Closing, to "IDM Pharma, Inc." or such other name as the Issuer and the
Company may agree prior to the Closing.
Section 4. Entire Agreement. The Agreement, as amended by this
Amendment constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, between the parties and the Principal Company Shareholders
with respect to the subject matter thereof and hereof. Except as amended by this
Amendment, the Agreement shall continue in full force and effect in accordance
with its terms.
Section 5. 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
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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
contemplated by this Amendment is not affected in any manner materially 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 a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated by the
Agreement as amended by this Amendment to the fullest extent possible.
Section 6. Counterparts. This Amendment may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 7. Governing Law.
(a) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed in and
to be performed in that jurisdiction, excluding (to the greatest extent a
Delaware court would permit) any rule of law that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(b) The parties irrevocably agree that any dispute, controversy or
claim arising out of or relating to this Amendment or the transactions
contemplated thereby, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce as at present in force. The
place of arbitration shall be Orange County, California and the number of
arbitrators shall be three. Each of (i) the Shareholder Representative, on
behalf of the Principal Company Shareholders, on the one hand, and (ii) the
Issuer, on the other hand, shall designate one arbitrator and the two so
designated arbitrators shall jointly designate the third arbitrator. If such
designation is not made within fifteen (15) days of the designation of the
second party designated arbitrator, the Secretary General of the International
Court of Arbitration of the International Chamber of Commerce shall designate
the third arbitrator. The language of the arbitral proceedings shall be English,
but all submissions and written evidence may be in French or English.
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IN WITNESS WHEREOF, the Issuer and the Principal Company Shareholders,
represented by the Shareholder Representative have executed, or have caused to
be executed by their respective officers thereunto duly authorized, this
Amendment as of the date first written above.
EPIMMUNE INC.
By: /s/ XXXXXX DE VAERE
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Name: Xxxxxx De Vaere
Title: Vice President, Finance and
Administration, Chief Financial
Officer and Secretary
PRINCIPAL COMPANY SHAREHOLDERS,
Represented by the Shareholder Representative
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Shareholder Representative
