Exhibit 99.2
AMENDMENT No. 1 (this "Amendment"), dated as of March 15, 2005, to the
Share Exchange Agreement (the "Agreement"), dated as of March 15, 2005 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. 1
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 Shareholder Representative hereby agree as follows:
Section 1. Conditions to the Obligations of Each Party. The following
shall be added to Section 7.01 of the Agreement:
(i) Warrant Amendments. The Warrant Amendments set out in Section 6.16
have in fact been validly approved by the Company Shareholders' Meeting.
Section 2. Shareholder Representative. The following shall be added to
Section 9.04 of the Agreement:
(f) In the event of the death or permanent disability of the
Shareholder Representative, or his resignation as the Shareholder
Representative, a successor Shareholder Representative shall be elected by
a vote of the Principal Company Shareholders holding at least a majority of
the Expense Escrow Shares (or, if no Expense Escrow Shares remain, a
majority of the Indemnity Escrow Shares). The Principal Company
Shareholders shall cause to be delivered to the Issuer prompt written
notice of such election of a successor Shareholder Representative. After
the Shareholder Representative's death, disability or resignation (as the
case may be) and pending the election of a successor Shareholder
Representative, the Principal Company Shareholder holding the largest
number of outstanding shares of the Company immediately prior to the
Closing Date shall act as the interim Shareholder Representative. Each
interim and successor Shareholder Representative shall have all the power,
authority, rights,
obligations, duties and privileges conferred by this Agreement upon the
original Shareholder Representative and the term "Shareholder
Representative" as used herein will be deemed to include an interim or
successor Shareholder Representative.
Section 3. Form of Indemnity Escrow Agreement. The following shall be
added as the penultimate paragraph of Section 1.07(a) of the form of Indemnity
Escrow Agreement:
Promptly upon receipt of any Claim Certificate or any amendment or
supplement thereto, the Shareholder Representative shall notify each of the
Principal Company Shareholders of the submission of such Claim Certificate
and will as soon as reasonably practicable distribute to each Principal
Company Shareholder a copy of such Claim Certificate.
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 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
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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/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President, Chief Executive
Officer and Director
PRINCIPAL COMPANY SHAREHOLDERS,
Represented by the Shareholder
Representative
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
