Exhibit 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (the "First
Amendment") is made and entered into as of February 5, 2004, by and among KERYX
BIOPHARMACEUTICALS, INC., a Delaware corporation ("Keryx"), AXO Acquisition
Corp., a Delaware corporation ("Mergersub"), and ACCESS ONCOLOGY, INC., a
Delaware corporation ("ACCESS").
Preamble
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WHEREAS, as of January 7, 2004, Keryx, ACCESS and Mergersub entered into an
Agreement and Plan of Merger (the "Merger Agreement"), a copy of which is
attached hereto as "Exhibit A;"
WHEREAS, the Merger Agreement provides for the acquisition of ACCESS by
Keryx pursuant to the merger of Mergersub with and into ACCESS, with ACCESS
surviving as a wholly owned subsidiary of Keryx;
WHEREAS, in order, among other things, to secure the approval of the ACCESS
stockholders to the Merger Agreement, each of Keryx, ACCESS, and Mergersub
desire to amend the terms of the Merger Agreement as set forth more fully
herein;
Agreement
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NOW, THEREFORE, in consideration of the above and the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknolwdged, Keryx, ACCESS and
Mergersub hereby agree as follows:
1.1 Except as amended hereby, the Merger Agreement shall remain in full
force and effect. Capitalized terms not defined herein shall have the meaning
set forth in the Merger Agreement.
1.2 The first full paragraph of the Preamble to the Merger Agreement shall
be deleted and replaced in its entirety with the following:
The respective Boards of Directors of ACCESS, Mergersub and Keryx (in
the case of Keryx, acting on the recommendation of a special committee
appointed by the Board of Directors of Keryx (the "Keryx Special
Committee")) are of the opinion that the transactions described herein
are in the best interests of the Parties to this Agreement and their
respective stockholders. This Agreement provides for the acquisition
of ACCESS by Keryx pursuant to the merger of Mergersub with and into
ACCESS. At the effective time of such Merger, the outstanding shares
of preferred stock of ACCESS shall be converted into shares of the
common stock of Keryx having a value equal to the liquidation
preferences of such shares of preferred stock and the outstanding
shares of common stock of ACCESS
and outstanding warrants to purchase capital stock of ACCESS shall be
converted into the right to receive shares of the common stock of
Keryx, or cash in lieu thereof, upon the satisfaction of certain
milestones following the closing of the transaction. As a result,
preferred stockholders of ACCESS shall become, and common stockholders
of ACCESS shall have the potential to become, stockholders of Keryx
and ACCESS shall continue to conduct its business and operations as a
wholly-owned subsidiary of Keryx. The transactions described in this
Agreement are subject to (a) the approval of the holders of ACCESS
Stock representing a majority of the voting power of all of the
outstanding ACCESS Stock, voting together as a single class (the
"ACCESS Stockholder Approval"), and (b) the satisfaction of certain
other conditions described in this Agreement. For federal income tax
purposes, it is intended that the Merger will qualify as a
reorganization under the provisions of Section 368(a) of the Internal
Revenue Code of 1986, as amended.
1.3 Section 11.1(a) of the Merger Agreement shall be amended as follows:
(a) the definition of "ACCESS Outstanding Shares" shall be stricken and
replaced in its entirety with the following:
"ACCESS Outstanding Shares" means the number of shares of ACCESS
Common Stock issued and outstanding as of the Effective Time plus (i)
any Common Warrant Shares, (ii) any shares of ACCESS Common Stock
issued upon the exercise of ACCESS Options within 20 calendar days of
the date notice of the Merger is mailed to the former ACCESS
stockholders, and (iii) the number of shares of ACCESS Common Stock
that would have been issuable immediately prior to the Effective Time
upon the conversion of Series A Preferred Stock or Series B Preferred
Stock for which the holders elect to receive Common Merger
Consideration in accordance with the procedures set forth in Section
4.1.
(b) the definition of "Common Merger Consideration" shall be stricken and
replaced in its entirety with the following:
"Common Merger Consideration" means the Merger Consideration, to be
distributed pro-rata to the holders of Participating Common Stock less
any amount distributed as Preferred Merger Consideration under the
terms of this Agreement.
(c) the definition of "Distribution" shall be stricken and replaced in its
entirety with the following:
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"Distribution" means a distribution of Preferred Merger Consideration
or Common Merger Consideration upon the Closing, the occurrence of any
Triggering Event, or as a result of the Unexercised Warrant Share
Distribution.
(d) the definition of "Merger Consideration" shall be stricken and replaced
in its entirety with the following:
"Merger Consideration" means the right to receive shares of Keryx
Common Stock (or, in the case of Common Merger Consideration only,
cash in lieu thereof as set forth in Section 3.1(f)):
(a) pursuant to the provisions of Section 3.1(b) and Section
3.1(c);
(b) in the following amounts upon the achievement of the
following Milestones:
(i) 500,000 shares of Keryx Common Stock upon the
achievement of the First Milestone;
(ii) 750,000 shares of Keryx Common Stock upon the
achievement of the Second Milestone;
(iii) 1,750,000 shares of Keryx Common Stock upon
the achievement of the Third Milestone;
(iv) 500,000 shares of Keryx Common Stock upon the
achievement of the Fourth Milestone; and
(v) 500,000 shares of Keryx Common Stock upon the
achievement of the Fifth Milestone.
(c) Upon the occurrence of any Triggering Event, pursuant to
the terms of this Agreement;
provided that in no instance shall Keryx be required to have to issue
Merger Consideration in excess of 4,000,000 shares of Keryx Common
Stock (or cash in lieu thereof) pursuant to this Agreement. To the
extent Merger Consideration is paid pursuant to Section 3.1(b) or
Section 3.1(c), the number of shares payable upon achievement of each
Milestone will be unaffected until payment thereof would cause the
total Merger Consideration to exceed 4,000,000 shares of Keryx Common
Stock.
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(e) the definition of "Participating Common Stock" shall be stricken and
replaced in its entirety with the following:
"Participating Common Stock" means all shares of ACCESS Common Stock
issued and outstanding as of the Effective Time plus (i) any Common
Warrant Shares, (ii) any shares of ACCESS Common Stock issued upon the
exercise of ACCESS Options within 20 calendar days of the date notice
of the Merger is mailed to the former ACCESS stockholders, and (iii) a
number of shares of ACCESS Common Stock that would have been issuable
immediately prior to the Effective Time to any holder of Series A
Preferred Stock or Series B Preferred Stock that elects to receive
Common Merger Consideration in accordance with the procedures set
forth in Section 4.1, but excluding (x) any shares of ACCESS Stock
held by stockholders who perfect (and do not withdraw or lose) their
statutory dissenters' rights as provided in Section 3.5, and (y) any
shares of ACCESS Common Stock held by any ACCESS Entity or Keryx
immediately prior to the Effective Time.
(f) the definition of "Participating Series A Preferred Stock" shall be
stricken and replaced in its entirety with the following:
"Participating Series A Preferred Stock" means all shares of Series A
Preferred Stock issued and outstanding as of the Effective Time, but
excluding (i) any shares of Series A Preferred Stock held by
stockholders who perfect their statutory dissenters' rights as
provided in Section 3.5, (ii) any shares of Series A Preferred Stock
held by any ACCESS Entity or Keryx immediately prior to the Effective
Time, and (iii) any shares of Series A Preferred Stock for which the
holders elect to receive Common Merger Consideration in accordance
with the procedures set forth in Section 4.1.
(g) the definition of "Participating Series B Preferred Stock" shall be
stricken and replaced in its entirety with the following:
"Participating Series B Preferred Stock" means all shares of Series B
Preferred Stock issued and outstanding as of the Effective Time, but
excluding (i) any shares of Series B Preferred Stock held by
stockholders who perfect their statutory dissenters' rights as
provided in Section 3.5, (ii) any shares of Series B Preferred Stock
held by any ACCESS Entity or Keryx immediately prior to the Effective
Time, and (iii) any shares of Series B Preferred Stock for which the
holders elect to receive Common Merger Consideration in accordance
with the procedures set forth in Section 4.1.
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(h) the definition of "Preferred Merger Consideration" shall be stricken
and replaced in its entirety with the following:
"Preferred Merger Consideration" means a number of shares of Keryx
Common Stock equal to the quotient of the Preferred Amount divided by
the volume-adjusted weighted average closing price per share of Keryx
Common Stock measured over the last seven trading days immediately
preceding the Closing, to be issued to the holders of Participating
Series A Preferred Stock and Participating Series B Preferred Stock in
accordance with their respective liquidation preferences of $1.50 per
share and $2.00 per share.
(i) the definition of "Registrable Securities" shall be stricken and
replaced in its entirety with the following:
"Registrable Securities" means (i) the shares of Keryx Common Stock
issued as Preferred Merger Consideration, and (ii) with respect to
each other Distribution, all shares of Keryx Common Stock issued to
the stockholders of ACCESS as Common Merger Consideration in such
Distribution, together with any shares of Keryx Common Stock issued
pursuant to Section 3.2(d) prior to or as part of the relevant
Distribution, provided that the Keryx Stockholder Approval has been
obtained.
1.4 Section 2.1 of the Merger Agreement shall be deleted and replaced in
its entirety with the following:
2.1 Charter
The certificate of incorporation of ACCESS, which will be the
certificate of incorporation of the Surviving Corporation, shall be
amended and restated to conform to the certificate of incorporation of
Mergersub until duly amended or repealed; provided, however, that the
name of the Surviving Corporation shall remain "ACCESS Oncology, Inc."
1.5 Sections 3.1(d), (e) and (f) of the Merger Agreement shall be deleted
and replaced in their entirety with the following:
(d) Each share of Participating Common Stock shall cease to be
outstanding and shall be converted into the right to receive from
Keryx a portion of the Common Merger Consideration in an amount equal
to the product of (i) the Common Merger Consideration times (ii) a
fraction, the numerator of which shall be 1, and the denominator of
which shall be the ACCESS Outstanding Shares.
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(e) Upon the achievement of each Milestone, the Common Merger
Consideration shall become due and payable to the holders of
Participating Common Stock in accordance with Sections 3.1(d);
provided, however, that the Common Merger Consideration, or a portion
thereof, shall become immediately due and payable upon:
(i) the occurrence of a Qualifying Extraordinary Transaction, in
accordance with Section 3.1(i),
(ii) the occurrence of a Divesting Transaction, in accordance
with Section 3.1(j),
(iii) the occurrence of an initial public offering of ACCESS, in
accordance with Section 3.1(k),
(iv) the occurrence of a strategic alliance, corporate
partnership, disposition, or Spin Off involving any of the ACCESS
Products, in accordance with Section 3.1(l).
Each Milestone and each of the events set forth in Sections
3.1(e)(i)-(iv) are referred to herein as a "Triggering Event."
(f) No shares of Keryx Common Stock shall be issued as Common
Merger Consideration until and unless such issuance is approved by the
affirmative vote of the stockholders of a majority of the shares of
Keryx Common Stock issued and outstanding and entitled to vote at the
next annual meeting to be held by Keryx (the "Keryx Annual Meeting")
following the Effective Time, as further described in Section 8.2 (the
"Keryx Stockholder Approval"). If, for any reason, the Keryx
Stockholder Approval is not obtained at the Keryx Annual Meeting, or
any subsequent annual meeting of stockholders prior to the first
payment of any Common Merger Consideration, each share of ACCESS
Common Stock shall instead be converted into the right to receive cash
having a value (as calculated in Section 3.1(g) below) equal to the
Keryx Common Stock otherwise due and owing pursuant to this Agreement,
such cash to be delivered in accordance with the terms of this
Agreement.
1.6 Sections 3.1(i), (j), (k), (l) and (m) of the Merger Agreement shall
be deleted and replaced in their entirety with the following:
(i) In the event of a Qualifying Extraordinary Transaction
at or after the Effective Time, all of the Common Merger
Consideration that has not previously been distributed shall
become immediately due and payable to the holders of
Participating Common Stock.
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(j) In the event of a Divesting Transaction at or after the
Effective Time, the Common Merger Consideration shall become
immediately due and payable to the holders of Participating
Common Stock, in an amount of shares of Keryx Common Stock equal
to the quotient of (i) 50% of the Aggregate Consideration,
divided by (ii) the value of one share of Keryx Common Stock
calculated pursuant to Section 3.1(g); provided, that such amount
shall not cause Keryx to have to issue Merger Consideration in
excess of the 4,000,000 shares of Keryx Common Stock (or cash in
lieu thereof) payable by Keryx pursuant to this Agreement and
shall constitute the satisfaction of any and all further
obligations of Keryx for the payment of Merger Consideration
pursuant to this Agreement.
(k) In the event of an initial public offering of ACCESS, or
such Keryx Entity as shall own all or substantially all of any of
the ACCESS Products, after the Effective Time, the Common Merger
Consideration shall become immediately due and payable to the
holders of Participating Common Stock, in an amount of shares of
Keryx Common Stock equal to the quotient of (i) 50% of the
aggregate value of the ACCESS Stock held by any Keryx Entity
immediately after such initial public offering (as calculated
below), divided by (ii) the value of one share of Keryx Common
Stock (as calculated pursuant to Section 3.1(g)); provided, that
such amount shall not cause Keryx to have to issue Merger
Consideration in excess of the 4,000,000 shares of Keryx Common
Stock (or cash in lieu thereof) payable by Keryx pursuant to this
Agreement. Subsequent Common Merger Consideration may be
distributed with respect to ACCESS Product(s) involved in the
public offering based on subsequent development of such ACCESS
Product(s). For purposes of determining the value of ACCESS Stock
for purposes of this Section 3.1(k), each share of ACCESS Stock
shall be assigned a value equal to the average closing price for
a share of ACCESS Stock as quoted on the Nasdaq Stock Market (or,
if the ACCESS Stock is not traded on the Nasdaq Stock Market, by
either (i) the average closing price per share as reported by the
exchange on which the ACCESS Stock is principally traded, or (ii)
if not traded on any exchange, the average mean between the bid
and offered prices for the ACCESS Stock as quoted in the
over-the-counter market) on the five consecutive trading days
following the first trading day on which the ACCESS Stock is so
traded following the effective time of the initial public
offering.
(l) (i) In the event of a strategic alliance, corporate
partnership or disposition involving any (but not all) of the
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ACCESS Products that includes an up front payment to any Keryx
Entity (including any ACCESS Entity), or a purchase of an equity
interest in any Keryx Entity (including any ACCESS Entity), in
either case equal to or in excess of $20 million in value, then
Common Merger Consideration of 1,000,000 shares of Keryx Common
Stock that has not previously been distributed shall become
distributable to the holders of Participating Common Stock
irrespective of the subsequent achievement or failure to achieve
any Milestone. Subsequent Common Merger Consideration may be
distributed with respect to ACCESS Product(s) involved in the
strategic alliance, corporate partnership or other disposition
based on subsequent development of such ACCESS Product(s) by any
Keryx Entity, ACCESS Entity, corporate or strategic partner or
purchaser of such ACCESS Product.
(ii) If a Spin Off is consummated at or after the
Effective Time, the Common Merger Consideration shall become
immediately due and payable to the holders of Participating
Common Stock, in an amount of shares of Keryx Common Stock equal
to 50% of (i) the market capitalization of the entity the
securities of which are distributed in the Spin Off (the
"Distributed Entity") (i.e., the total number of outstanding
securities of the Distributed Entity, whether or not included in
the public float, multiplied by the value per security determined
as set forth below) divided by (ii) the value of one share of
Keryx Common Stock (as calculated in Section 3.1(g)); provided,
that such amount shall not cause Keryx to have to issue Merger
Consideration in excess of the 4,000,000 shares of Keryx Common
Stock (or cash in lieu thereof) payable by Keryx pursuant to this
Agreement. Following a Spin Off, no Common Merger Consideration
will be payable based on the development of the ACCESS Product(s)
involved in the Spin Off, but the Common Merger Consideration
payable with respect to other ACCESS Products will be unaffected.
For purposes of determining the market capitalization of the
Distributed Entity, the distributed securities of the Distributed
Entity shall be assigned a value based on their average closing
price as quoted on the Nasdaq Stock Market (or, if such
securities are not traded on the Nasdaq Stock Market, by either
(i) the average closing price per share as reported by the
exchange on which the such securities are principally traded, or
(ii) if not traded on any exchange, the average mean between the
bid and offered prices for such securities as quoted in the
over-the-counter market) on the five consecutive trading days
following the first trading day on which such securities are so
traded following the effective time of the Divesting Spin Off
(or, if such securities are not quoted in the over the counter
market, based on their fair value as determined in good
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faith by Keryx's Board of Directors). The record date for the
Spin Off shall be deemed to be immediately after the effective
date for distribution of the Common Merger Consideration payable
pursuant to this Section 3.1(l)(ii).
(m) Notwithstanding any other provision contained in this
Agreement, in no event shall Keryx deliver in excess of 4,000,000
shares of Keryx Common Stock (or cash in lieu thereof) as Merger
Consideration pursuant to this Agreement, except as may be
required pursuant to the anti-dilution provisions of Section 3.3.
1.7 Section 3.3 of the Merger Agreement shall be deleted and replaced in
its entirety with the following:
3.3 Anti-Dilution Provisions
In the event Keryx changes the number of shares of Keryx Common
Stock issued and outstanding prior to the achievement of any
Triggering Event as a result of a stock split, stock dividend, or
similar recapitalization with respect to such stock, the number of
shares of Keryx Common Stock remaining to be distributed as Common
Merger Consideration shall be proportionately adjusted.
1.8 Section 3.6 of the Merger Agreement shall be deleted and replaced in
its entirety with the following:
3.6 Treatment of Stock Options.
Prior to the Effective Time, ACCESS shall take all actions
necessary so that each option or other Equity Right to purchase shares
of ACCESS Stock pursuant to stock options, stock appreciation rights,
or otherwise, but excluding the ACCESS Warrants, Series A Preferred
Stock and Series B Preferred Stock (the "ACCESS Options") then
outstanding shall become fully vested and exercisable (whether or not
currently exercisable) and, 20 calendar days following the date notice
of the Merger is mailed to the former ACCESS stockholders, each such
ACCESS Option not theretofore exercised shall be cancelled in
accordance with the terms of the ACCESS Stock Plan (or other
instrument or agreement governing the Equity Right) and applicable
Law, and shall not be assumed by the Surviving Corporation and no
consideration shall be delivered in exchange therefor. At the close of
business 20 calendar days following the date notice of the Merger is
mailed to the former ACCESS stockholders, each of the ACCESS Options
shall no longer represent the right to purchase shares of ACCESS Stock
and shall be null and void.
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1.9 Section 4.1(a) of the Merger Agreement shall be deleted and replaced
in its entirety with the following:
4.1 Exchange Procedures
(a) Promptly following the Closing, Keryx or Keryx's transfer
agent or other exchange agent selected by Keryx (in each case, the
"Exchange Agent") shall send, or shall cause ACCESS to send, to each
holder of ACCESS Stock immediately prior to the Effective Time a
letter of transmittal (the "Letter of Transmittal") which shall be
completed and returned by such holders. The Letter of Transmittal
shall (i) instruct the holders of ACCESS Stock to tender to Keryx the
certificate of certificates which represented shares of ACCESS Stock
held by all such holders immediately prior to the Effective Time (the
"Certificates"), together with instructions for delivery, by United
States registered mail, return receipt requested, of the Preferred
Merger Consideration and Common Merger Consideration, (ii) include
instructions for holders of Series A Preferred Stock and Series B
Preferred Stock to elect within 20 calendar days of the date notice of
the Merger is mailed to the former ACCESS stockholders to receive
either Preferred Merger Consideration or Common Merger Consideration
in exchange for some or all of their shares of Series A Preferred
Stock or Series B Preferred Stock, if tendered in accordance with the
terms of this Agreement and the Letter of Transmittal, and (iii)
solicit such other information, representations, warranties, and
covenants as may be reasonably required by Keryx in order to
effectuate the transactions contemplated by this Agreement. Upon the
later of (i) thirty (30) days following the date notice of the Merger
is mailed to the former ACCESS stockholders, or (ii) the date at which
any holder (or ACCESS on behalf of any holder) of Participating Series
A Preferred Stock or Participating Series B Preferred Stock delivers
to the Exchange Agent the Certificates representing Participating
Series A Preferred Stock or Participating Series B Preferred Stock
together with a completed Letter of Transmittal, the Exchange Agent
shall send to such stockholder its share of the Preferred Merger
Consideration. The Exchange Agent shall maintain a list of delivery
instructions provided by any holder of ACCESS Stock for delivery of
either Preferred Merger Consideration or Common Merger Consideration.
If any Certificate shall have been lost, stolen, mislaid or destroyed,
upon receipt of (i) an affidavit of that fact from the holder claiming
such Certificate to be lost, mislaid, stolen or destroyed, (ii) such
bond, security or indemnity as the Exchange Agent may reasonably
require and (iii) any other documents necessary to evidence and effect
the bona fide exchange thereof, the Exchange Agent shall issue to such
holder the Preferred Merger Consideration or Common Merger
Consideration into which the shares represented by such lost, stolen,
mislaid or destroyed Certificate shall be converted as and when due in
accordance with Article 3 of this Agreement. In addition, the Exchange
Agent shall maintain a list of the holders of ACCESS Warrants that
have not been exercised prior to the Effective Time which list shall
be used for
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the purpose of sending the notices to the holders of ACCESS Warrants,
as provided in Section 3.2. The Exchange Agent may establish such
other reasonable and customary rules and procedures in connection with
its duties as it may deem appropriate. The Surviving Corporation shall
pay all charges and expenses, including those of the Exchange Agent,
in connection with the distribution of the consideration provided in
Section 4.1.
1.10 Section 4.1(d) of the Merger Agreement shall be deleted and replaced
in its entirety with the following:
(d) [Intentionally omitted.]
1.11 Section 4.1(e) of the Merger Agreement shall be deleted and replaced
in its entirety with the following:
(e) Keryx shall not be obligated to deliver the Preferred Merger
Consideration or the Common Merger Consideration to which any former
holder of ACCESS Stock is entitled pursuant to this Agreement until
such holder surrenders such holder's Certificate or Certificates for
exchange as provided in this Section 4.1. In addition, Keryx shall not
be obligated to deliver the Merger Consideration to any holder of
ACCESS Warrants unless such holder has properly completed and returned
the exercise election form in accordance with the terms of the ACCESS
Warrants.
1.12 Section 8.4(d) of the Merger Agreement shall be deleted and replaced
in its entirety with the following:
(d) It shall be a condition precedent to the obligations of
Keryx to take any action pursuant to this Section 8.4 with respect to
the Registrable Securities of any holder that such holder shall have
agreed (i) to cease all disposition efforts under such Registration
Statement with respect to Registrable Securities held by such holder
immediately upon receipt of notice of the beginning of any Blackout
Period until such time as Keryx shall provide written notice to the
holders of Registrable Securities of the end of each Blackout Period,
(ii) to furnish to Keryx such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect the
registration of such holder's Registrable Securities pursuant to any
Registration Statement and (iii) to enter into any indemnification and
contribution agreement with Keryx in customary form as contemplated by
clause (viii) of paragraph (b) above.
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1.13 Section 8.14 of the Merger Agreement shall be deleted and replaced in
its entirety with the following:
8.14 Assumption of Certain Obligations.
It shall be a condition to any transaction involving a change in
control of Keryx or any of its successors or assigns, a merger or
consolidation in which Keryx or any such successor or assign is not
the surviving entity or a sale, transfer, assignment or conveyance of
substantially all of Keryx's or any such successor's or assign's
assets that the party succeeding to Keryx's or such successor's or
assign's principal assets or business activities shall have (i)
assumed all of Keryx's remaining obligations under Sections 8.11 and
(ii) to the extent Merger Consideration may be payable thereafter, to
issue in lieu thereof the securities or other property that would have
been deliverable to a holder of the shares of Keryx Common Stock
issuable as such Merger Consideration, or distribute the cash payable
as such Merger Consideration, in accordance with the terms of this
Agreement. The Indemnitees, the persons who may become entitled to
receive Common Merger Consideration and the holders of Registrable
Securities shall be third party beneficiaries of this Agreement.
1.14 Section 9.1 of the Merger Agreement shall be deleted and replaced in
its entirety with the following:
9.1 Conditions to Obligations of Each Party.
The respective obligations of each Party to perform this
Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following
conditions, unless waived by both Parties pursuant to Section 11.6:
(a) Stockholder Approval. This Agreement, and the consummation of
the transactions contemplated hereby, including the Merger, shall have
received the ACCESS Stockholder Approval.
(b) Regulatory Approvals. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or
made and shall be in full force and effect and all waiting periods
required by Law shall have expired.
(c) Consents and Approvals. Each Party shall have obtained any
and all Consents required for consummation of the Merger (other than
those referred to in Section 9.1(b)) or for the preventing of any
Default under any Contract or Permit of such Party which, if not
obtained or made, is reasonably likely to have, individually or in the
aggregate, an ACCESS
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Material Adverse Effect or a Keryx Material Adverse Effect, as
applicable. Without limitation of the foregoing, ACCESS shall have
received the Consents of the holders of the Series A Warrants,
Series B Warrants to the treatment of such warrants as set forth in
Section 3.2.
(d) Legal Proceedings. No court or governmental or Regulatory
Authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal consummation of the transactions
contemplated by this Agreement.
(e) Fairness Opinion. The Keryx Special Committee shall have
received from the Special Committee Financial Advisor a letter, dated
the date of this Agreement, to the effect that, in the opinion of such
firm, the consideration to be offered by Keryx in connection with the
Merger is, as of the date of this Agreement, fair, from a financial
point of view, to Keryx's stockholders who are not Affiliates of
ACCESS.
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IN WITNESS WHEREOF, each of the Parties has caused this FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER to be executed on its behalf by its duly authorized
officers as of the day and year first above written.
KERYX BIOPHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
AXO ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
ACCESS ONCOLOGY, INC.
By: /s/ I. Xxxxx Xxxxxxxxx, M.D.
---------------------------------------------
I. Xxxxx Xxxxxxxxx, M.D.
President and Chief Executive Officer
EXHIBIT A
AGREEMENT MERGER
(Previously Filed on Form 8-K dated January 8, 2004 as Exhibit 2.1)
