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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 December 1, 2000 by and among AVANT
Immunotherapeutics, Inc., a Delaware corporation ("AVANT"), AVANT Acquisition
Corp., a Delaware corporation ("Acquisition Sub"), and Megan Health, Inc., a
Delaware corporation ("Megan").
RECITALS
WHEREAS, AVANT, Acquisition Sub and Megan are parties to that certain
Agreement and Plan of Merger dated as of November 20, 2000 (the "Merger
Agreement") pursuant to which Acquisition Sub, a wholly-owned subsidiary of
AVANT, shall merge with and into Megan and, as a result, Megan shall become a
wholly-owned subsidiary of AVANT (the "Merger");
WHEREAS, under the terms of the Merger Agreement, each holder of Megan
Stock who fails to complete and deliver to Megan by the Closing Date an
Accredited Investor Questionnaire pursuant to which such holder represents that
he, she or it is an "Accredited Investor" pursuant to Rule 501 of the Securities
Act of 1933, as amended, shall be deemed ineligible to receive shares of AVANT
Common Stock in exchange for such holder's shares of Megan Stock, and in lieu
thereof shall be entitled to receive in the Merger cash in an amount determined
in accordance with Section 4.2(c) of the Merger Agreement (each such holder is
referred to in the Merger Agreement as an "Ineligible Stockholder");
WHEREAS, (i) the Closing Date is the date hereof, (ii) the parties hereto
have determined which holders of Megan Stock are Ineligible Stockholders under
the terms of the Merger Agreement and (iii) based on the foregoing, the parties
hereto have determined the amounts of each type of Merger Consideration to be
delivered to the holders of Megan Stock in the Merger in accordance with the
terms of the Merger Agreement; and
WHEREAS, pursuant to Section 11.4 of the Merger Agreement, the parties
hereto desire to amend the Merger Agreement to reflect the amounts of each type
of Merger Consideration to be delivered to the holders of Megan Stock in the
Merger, and to make any other necessary changes resulting from the foregoing.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agree as
follows:
1. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Merger Agreement.
2. Section 1.5(d) of the Merger Agreement is hereby deleted in its entirety
and the following is hereby inserted in its place:
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"(d) AVANT shall deliver a certificate for 1,577,808 shares of AVANT
Common Stock (as hereinafter defined) to a bank trust company or other entity
reasonably satisfactory to Megan appointed by AVANT to act as the exchange agent
(the "Exchange Agent") in accordance with Section 4.3;"
3. Section 1.5(e) of the Merger Agreement is hereby deleted in its entirety
and the following is hereby inserted in its place:
"(e) AVANT shall deliver a check for $143,238.11 to the Exchange Agent
in accordance with Section 4.3, representing (i) $142,827.32 in cash to be paid
to Ineligible Stockholders (as hereinafter defined) in lieu of AVANT Common
Stock, and (ii) $410.79 in cash to be paid in lieu of Fractional Shares (as
hereinafter defined);"
4. Section 4.2(d)(ii) of the Merger Agreement is hereby deleted in its
entirety and the following is hereby inserted in its place:
"(ii) Stockholders of record of Megan immediately prior to the
Effective Time (the "Megan Stockholders") shall be entitled to receive, in the
aggregate, such number of shares of AVANT Common Stock as is equal to the total
number of AVANT Merger Shares into which their shares of Megan Stock are
converted pursuant to this Section 4.2; PROVIDED THAT such number of shares of
AVANT Common Stock as is equal to 14.24318% of the total number of AVANT Merger
Shares, rounded to the nearest whole number (the "Escrow Shares"), shall be set
aside, PRO RATA, from the AVANT Merger Shares otherwise distributable to each of
the Megan Stockholders entitled to receive AVANT Merger Shares and deposited in
the escrow described in Section 4.6 for the purposes of securing the
indemnification obligations of the Megan Stockholders set forth in this
Agreement and the Principal Stockholders Agreement."
5. Section 4.3(g) of the Merger Agreement is hereby deleted in its entirety
and the following is inserted in its place:
"(g) If, in connection with an Ineligible Stockholder's surrender for
exchange of Certificates representing shares of Megan Stock in accordance with
this Article 4 during the three (3) month period following the Effective Time,
such Ineligible Stockholder provides documentation evidencing the fact that he,
she or it is actually an Accredited Investor, AVANT shall be obligated to
exchange the cash it had deposited in the Exchange Fund and reserved for such
stockholder for AVANT Common Stock to be paid to such stockholder. The number of
shares of AVANT Common Stock to be so exchanged shall be equal to the number of
shares of AVANT Common Stock such Megan Stockholder would have been entitled to
receive pursuant to Section 4.2 if such Megan Stockholder had represented that
he, she or it was an Accredited Investor prior to the Closing Date; it being
understood that, in accordance with Section 4.2(d)(ii) hereof, a number of such
shares equal to 14.24318% of such shares, rounded to the nearest whole number,
shall be set aside from the shares of AVANT Common Stock otherwise distributable
to such Megan Stockholder and deposited in the escrow described in Section 4.6
for the purpose of securing the indemnification obligations of the Megan
Stockholders set forth in this Agreement and the Principal Stockholders
Agreement (any such shares deposited in escrow in accordance
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with the foregoing shall be deemed to be part of the "Escrow Shares" under this
Agreement and the Ancillary Agreements). If such Megan Stockholder provides such
documentation after the three (3) month period following the Effective Time,
then AVANT shall have the right but not the obligation to give such Megan
Stockholder shares of AVANT Common Stock (the number of shares to be determined
in accordance with the preceding sentence) rather than cash upon surrender of
his, her or its Certificates. The Exchange Agent shall be obligated to return
the cash reserved for such Megan Stockholder to AVANT and to deliver the AVANT
Common Stock in lieu of cash to such Megan Stockholder."
6. Section 9.3(i) of the Merger Agreement is hereby deleted in its entirety
and the following is hereby inserted in its place:
"(i) INELIGIBLE STOCKHOLDERS; DISSENTING STOCKHOLDERS. The Ineligible
Stockholders shall not include any person who is not listed on SCHEDULE E
hereto, which sets forth for each such person the number and class of Megan
Stock held, for a total maximum Cash Consideration of $142,827.32. The total
Merger Consideration payable to Ineligible Stockholders and holders of Megan
stock who exercise their dissenting stockholder's right to demand appraisal
pursuant to the DGCL, if any, as a group shall not exceed $400,000 (calculated
on the basis of the Cash Consideration payable plus the value of AVANT Common
Stock at a price of $9.54 per share) in the aggregate."
7. SCHEDULE E to the Merger Agreement is hereby deleted in its entirety and
replaced with SCHEDULE E attached to this First Amendment.
8. As amended by this First Amendment, the Merger Agreement is in all
respects ratified and confirmed, and as so amended by this First Amendment, the
Merger Agreement shall be read, taken and construed as one and the same
instrument.
9. This First Amendment may be executed by the parties hereto in separate
counterparts, each of which so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this First Amendment and
caused the same to be duly delivered on their behalf on the day and year first
written above.
AVANT IMMUNOTHERAPEUTICS, INC.
By: /s/ Dr. Una S. Ryan
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Name: Dr. Una S. Ryan
Title: Chief Executive Officer
AVANT ACQUISITION CORP.
By: /s/ Dr. Una S. Ryan
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Name: Dr. Una S. Ryan
Title: President
MEGAN HEALTH, INC.
By: /s/ Brian L. Clevinger, Ph.D.
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Name: Brian L. Clevinger, Ph.D.
Title: Chief Executive Officer
