EXHIBIT 2.2
EXECUTION COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
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THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), made this 26th day of July, 2007, is entered into by and among R&R
Acquisition III, Inc., a Delaware corporation ("PARENT"), PR Pharmaceuticals,
Inc., a Delaware corporation ("PRP"), and PRP Merger Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"). Capitalized
terms used but not defined in this Amendment shall have the meanings given to
such terms in the Merger Agreement (as defined below).
WHEREAS, Parent, Merger Sub and PRP entered into that certain Agreement
and Plan of Merger dated as of June 19, 2007 (the "MERGER AGREEMENT"); and
WHEREAS, the parties hereto now desire to amend the Merger Agreement on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. RECITALS. The fifth recital of the Merger Agreement is hereby deleted
in its entirety and replaced with the following:
"E. Prior to and as a condition to the Closing (as defined in
Section 1.2 below), PRP is issuing a minimum of $15 million and a
maximum of $25 million of PRP Common Stock (as defined in Section 1.6
below) and related warrants to purchase PRP Common Stock (the
"FINANCING") pursuant to the terms described in the Private Placement
Memorandum of PRP dated June 19, 2007, as supplemented by that certain
Supplement dated July 26, 2007 ((together with all schedules and
exhibits, the "MEMORANDUM")."
The parties agree that each reference to the "Financing" and to the
"Memorandum" in the Merger Agreement shall mean and be a reference to
the terms as defined in the recital set forth above.
2. CAPITALIZATION. The first two sentences of SECTION 2.6 of the Merger
Agreement are hereby deleted in their entirety and replaced with the
following:
"As of the date of this Agreement, PRP's authorized
capital consists of 500,000,000 shares of PRP Common Stock and
3,500,000 shares of preferred stock. Immediately prior to the
Effective Time, PRP's authorized capital will consist of
750,000,000 shares of PRP Common Stock and 3,500,000 shares of
preferred stock."
3. SCHEDULE 2.6 of the Merger Agreement is hereby deleted in its entirety
and is replaced with an amended SCHEDULE 2.6 in the form attached
hereto as EXHIBIT A.
4. DISCLOSURE OF CERTAIN MATERIAL CHANGES. Parent and Merger Sub
acknowledge that the matters, terms and conditions described and set
forth in the Supplement shall be deemed disclosed to each of Parent and
Merger Sub and each of Parent and Merger Sub hereby consent to such
revised terms and conditions.
5. FINANCIAL STATEMENTS. The parties agree that references to the
financial statements for December 31, 2005, December 31, 2006 and for
the three months ending March 31, 2007 in the Merger Agreement shall
mean and be a reference to the financial statements included in the
Supplement.
6. AFFIRMATIVE PRE-CLOSING COVENANTS OF PARENT. Section 4.3(a) of the
Merger Agreement is hereby deleted in its entirety and replaced with
the following:
"(a) Prior to the Closing, Parent shall take all actions
required such that immediately after the Effective Time persons who
were stockholders of Parent immediately prior to the Effective Time
shall hold 6% of the fully diluted shares of Parent Common Stock (the
"PARENT RECAPITALIZATION"). For example,
(i) assuming the Maximum Offering (as defined in the
Memorandum) Parent will have 33,334,234 shares of Parent Common Stock
issued or issuable on a fully diluted basis as of immediately after the
Effective Time, of which 2,000,054 will be held by persons who held
shares of Parent Common Stock as of immediately before the Effective
Time; and
(ii) assuming the Minimum Offering (as defined in the
Memorandum) Parent will have 24,631,112 shares of Parent Common Stock
issued or issuable on a fully diluted basis as of immediately after the
Effective Time, of which 1,477,867 will be held by persons who held
shares of Parent Common Stock as of immediately before the Effective
Time."
7. PLACEMENT AGREEMENT. The parties agree that references to the Placement
Agreement in the Merger Agreement shall mean and be a reference to the
Second Amended and Restated Placement Agency Agreement dated July 26,
2007.
8. CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE MERGER. Section
6.1(f) of the Merger Agreement is hereby deleted in its entirety and
replaced with the following:
"(f) PRP FINANCING. PRP shall have closed on at least
$15,000,000 of gross proceeds from the sale of PRP Common Stock in the
Financing."
9. EFFECT OF AMENDMENT. On and after the date of this Amendment each
reference in the Merger Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import referring to the Merger
Agreement shall mean and be a reference to the Merger Agreement, as
amended by this Amendment. Except as specifically amended by
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this Amendment, the Merger Agreement shall remain in full force and
effect and is hereby ratified and confirmed.
10. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would
cause the application of laws of any jurisdictions other than those of
the State of Delaware.
11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument, and facsimile
signatures shall be deemed, for the purposes of this Amendment,
original signatures.
12. SEVERABILITY. Any term or provision of this Amendment that is invalid
or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or provision,
to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this Amendment
shall be enforceable as so modified.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year set forth above.
R&R ACQUISITION III, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
PRP MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
PR PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
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EXHIBIT A
SCHEDULE 2.6
CAPITALIZATION
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IMMEDIATELY
ON THE DATE HEREOF PRIOR TO CLOSING*
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AUTHORIZED
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Common Stock 500,000,000 750,000,000
Preferred Stock 3,500,000 3,500,000
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Subtotal: 503,500,000 753,500,000
OUTSTANDING (NET OF TREASURY STOCK)
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Common Stock 23,175,448 318,155,873
Preferred Stock 15,257,072 0
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Subtotal: 38,432,520 318,155,873
RESERVED FOR ISSUANCE
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Warrants for Common Stock 9,031,369 208,548,775
Convertible Notes 8,046,105 0
1998 Stock Plan
Options Granted 7,378,949 7,378,949
Available for Grant 0 0
2007 Stock Plan
Options Granted 0 0
Available for Grant 61,029,494 92,600,000
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Subtotal: 308,527,724
TREASURY STOCK 446,207 446,207
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* Assuming Maximum Offering (as defined in the Memorandum)
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