Exhibit 2.1
-----------
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger ("Amendment") is
dated June 29, 2006 by and among Dauphin Technology, Inc., an Illinois
corporation ("Dauphin"), GeoVax Acquisition Corp., a Georgia corporation and
wholly-owned subsidiary of Dauphin ("Merger Subsidiary"), and GeoVax, Inc., a
Georgia corporation ("GeoVax").
WHEREAS, the parties to this Amendment entered into a certain Agreement
and Plan of Merger dated January 20, 2006 ("Merger Agreement"); and
WHEREAS, the parties to this Amendment desire to amend the Merger
Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Amendment agree as follows:
1. All capitalized terms not defined herein shall have the respective
meanings assigned to them in the Merger Agreement.
2. Section 1.4 (e) is hereby modified to read as follows:
"(e) Immediately prior to Closing, Dauphin will have no more than
243,000,000 shares of Dauphin common stock outstanding. Immediately
prior to the Closing, Dauphin will have Dauphin Convertible Securities
issued and outstanding in an amount not greater than the amount set
forth on Schedule 1.10. Immediately after the Closing, there will be
approximately 733,332,879 shares of Dauphin Stock issued and
outstanding, not including any shares issued in connection with the
GeoVax's Convertible Securities or the Dauphin Convertible Securities."
3. Section 1.10 is hereby modified to read as follows:
"1.10 Dauphin Securities and Dauphin Convertible Securities.
Schedule 1.10 attached hereto describes all Dauphin securities, debts
and other interests that are to be converted into Dauphin Common Stock
prior to or at the Closing. Schedule 1.10 also describes all Dauphin
stock purchase warrants (the "Dauphin Convertible Securities") that
will not be converted prior to Closing but that will remain issued and
outstanding according to their current terms and conditions.
Notwithstanding anything else contained herein to the contrary, at
the time of Closing, exclusive of any Dauphin securities to be issued
in the Merger, the number of shares of Dauphin Common Stock shall not
exceed 243,000,000 and the number of Dauphin Convertible Securities
shall not exceed the amount set forth in Schedule 1.10."
4. Schedule 1.10 is deleted and replaced with the attached Schedule
1.10.
5. Section 6.1 (b) is hereby modified to read as follows:
"(b) As a condition to the execution of this Amendment, Dauphin
shall pay to GeoVax no less than $2,000,000 in net cash proceeds, free
and clear of any Encumbrance, resulting from a private placement of
Dauphin's common stock or convertible notes, occurring at, or prior to,
the Closing, as a non-refundable deposit in furtherance of the Closing
of the transaction described herein and in satisfaction of the
condition to raise any additional net cash proceeds from such private
placement. Notwithstanding the foregoing, Dauphin shall use its best
efforts to raise an additional $11,000,000 in net cash proceeds, free
and clear of any Encumbrance, resulting from a private placement of
Dauphin's common stock or convertible notes, occurring at, or prior to,
or within ninety (90) days following the Closing. At any time at, or
within ninety (90) days following the Closing, Dauphin shall provide
GeoVax with new signature cards provided by the bank where any such
additional funds are deposited naming one or more designees of GeoVax
to be the new signatories with full power of disposition of such
account from and after the Closing."
6. Section 8.1 (a) (3) is modified to read as follows:
"(3) if the Closing Conditions have not been satisfied by the
close of business on September 1, 2006;"
7. Section 8.1 (b) (3) is modified to read as follows:
"(3) if the Closing Conditions have not been satisfied by the
close of business on September 1, 2006;"
8. This Amendment shall be effective upon GeoVax's receipt of the
payment referenced in Section 5 hereof. Except as amended hereby, the Merger
Agreement shall continue in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
Dauphin Technology, Inc., GeoVax, Inc.,
an Illinois corporation a Georgia corporation
By: /s/ Andrew J. Kandalepas
- ----------------------------
President and Chief
Executive Officer
By: /s/ Donald Hildebrand
----------------------
President and Chief Executive
Officer
GeoVax Acquisition Corp.,
a Georgia corporation
By: /s/ Andrew J. Kandalepas
- ----------------------------
President and Chief Executive Officer