EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Amendment No. 1 to Agreement and Plan of Merger and Reorganization (this
"Amendment") is entered into as of March 5, 2003, by and among Protein Design
Labs, Inc., a Delaware corporation ("Parent"), Tikal Acquisition Corp. Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and
Eos Biotechnology, Inc., a Delaware corporation (the "Company"), and amends
that certain Agreement and Plan of Merger and Reorganization, dated as of
February 3, 2003, by and among Parent, Merger Sub and the Company (the "Merger
Agreement"). Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
In consideration of the mutual agreements, representations, warranties and
covenants set forth below and in the Merger Agreement, the parties agree as
follows:
1. The definition of the term "Management Acquisition Bonus Agreements" in
Exhibit A to the Merger Agreement is hereby amended and restated in its
entirety as follows:
"Management Acquisition Bonus Agreements" shall mean the bonus
agreements listed on Schedule 2.4 of the Company Disclosure Schedule
pursuant to which 8.145 % of the Gross Preferred Merger Consideration
(subject to the contribution of a portion of the Management Bonus
Shares to the Escrow Fund pursuant to Section 1.12) is to be
distributed as a special bonus to those officers of the Company and
in the amounts set forth in each such agreement, as amended,
contingent in all cases upon the consummation of the Merger.
2. A new defined term "Employee Bonus Shares" is hereby added to Exhibit A to
the Merger Agreement as follows:
"Employee Bonus Shares" shall mean the shares of Parent Common Stock to
be issued to the current and former non-officer employees of the
Company at Closing in accordance with Schedule 5.20 of the Company
Disclosure Schedule.
3. A new defined term "Aggregate Employee Bonus Share Value" is hereby added to
Exhibit A to the Merger Agreement as follows:
"Aggregate Employee Bonus Share Value" shall mean the product of (i)
the total number of Employee Bonus Shares multiplied by (ii) the
Parent Common Stock Price.
4. A new defined term "Aggregate Management Bonus Share Value" is hereby added
to Exhibit A to the Merger Agreement as follows:
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"Aggregate Management Bonus Share Value" shall mean the
product of (i) the total number of Management Bonus Shares multiplied
by (ii) the Parent Common Stock Price.
5. A new defined term "Gross Preferred Merger Consideration" is hereby added to
Exhibit A to the Merger Agreement as follows:
"Gross Preferred Merger Consideration" shall mean the Total
Merger Consideration less the sum of (i) the Common Merger Consideration and
(ii) any Excess Expenses.
6. The definition of the term "Preferred Merger Consideration" in Exhibit A to
the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Preferred Merger Consideration" shall mean the Gross
Preferred Merger Consideration less the sum of (i) the Aggregate
Management Bonus Share Value and (ii) the Aggregate Employee Bonus
Share Value.
7. The definition of the term "Merger Shares" in Exhibit A to the Merger
Agreement is hereby amended and restated in its entirety as follows:
"Merger Shares" means the Preferred Merger Shares, the Common Merger
Shares, the Management Bonus Shares and the Employee Bonus Shares,
taken together as a whole.
8. A new Section 5.20 is hereby added to the Merger Agreement reading in its
entirety as follows:
5.20 Issuance of Employee Bonus Shares and Management Bonus Shares.
At the Closing or as promptly as practicable thereafter, Parent shall
issue (i) the Employee Bonus Shares to the current and former
non-officer employees of the Company listed on Schedule 5.20 of the
Company Disclosure Schedules in the respective amounts set forth
thereon, in each case subject to applicable withholdings, and (ii)
the Management Bonus Shares to the officers of the Company listed on
Schedule 6.2(v) of the Company Disclosure Schedules, in each case
subject to applicable withholdings.
9. Section 6.2(v) of the Merger Agreement is hereby amended and restated in its
entirety as follows:
(v) Amendment of Management Acquisition Bonus Agreements.
Each of the Management Acquisition Bonus Agreements shall be amended
to provide that (i) the consideration to be provided thereunder shall
be calculated based on the Gross Preferred Merger Consideration as
contemplated by this Agreement and (ii) the respective participation
percentages for each of the Company officers party to such agreements
shall be revised to conform to the percentages set forth on Schedule
6.2(v) of the Company Disclosure Schedules.
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10. By its execution below, Parent shall be deemed to have given its consent to
the actions set forth in this Amendment to be taken by the Company for
purposes of Section 4.1 of the Agreement.
11. The provisions of Article IX of the Merger Agreement are hereby incorporated
by reference into this Amendment and shall be deemed applicable to this
Amendment as if they had been set forth herein in their entirety. Except as
otherwise modified by the terms of this Amendment, the terms of the Merger
Agreement shall remain in full force and effect and all such terms are hereby
ratified and confirmed.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the
duly authorized officers of Parent, Merger Sub and the Company as of the date
first above written.
PARENT
PROTEIN DESIGN LABS, INC.
By: /s/ DOUGLAS O. EBERSOLE
-----------------------------------------
Name:_______________________________________
Title: Senior Vice President, Legal and
Corporate Development
MERGER SUB:
TIKAL ACQUISITION CORP.
By: /s/ DOUGLAS O. EBERSOLE
-----------------------------------------
Name:_______________________________________
Title: Senior Vice President, Legal and
Corporate Development
COMPANY:
EOS BIOTECHNOLOGY, INC.
By: /s/ DAVID W. MARTIN, JR.
-----------------------------------------
Name:_______________________________________
Title: Chief Executive Officer
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