EXHIBIT 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Amendment No. 2 to Agreement and Plan of Merger and Reorganization (this
"Amendment") is entered into as of March 26, 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, as amended
by Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated as
of March 5, 2003, by and among Parent, Merger Sub and the Company (as amended,
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 a percentage of the Gross Preferred Merger
Consideration which is equal to the sum of (i) 4.0% of the Gross
Preferred Merger Consideration, plus (ii) Richard Murray's pro rata
share of (a) 5% of the Gross Preferred Merger Consideration divided by
(b) the shares of Company Common Stock outstanding as of the close of
business on March 7, 2003 (assuming as a result of the net exercise of
options) held by (I) persons who are or were formerly non-officer
employees of the Company, (II) Richard Murray and (III) David Martin,
plus (iii) David Martin's pro rata share of (a) 5% of the Gross
Preferred Merger Consideration divided by (b) the shares of Company
Common Stock outstanding as of the close of business on March 7, 2003
(assuming as a result of the net exercise of options) held by (I)
persons who are or were formerly non-officer employees of the Company,
(II) Richard Murray and (III) David Martin (in each case 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. The first sentence of Section 1.11(c) of the Merger Agreement is hereby
amended and restate din its entirety as follows:
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"At least 5 business days prior to the Effective Time, the Company, on
behalf of Parent, shall cause to be mailed to each holder of record of
a Company Stock Certificate that immediately prior to the Effective
Time would represent outstanding shares of Company Capital Stock,
whose shares would be converted into the right to receive shares of
parent Common Stock (and cash in lieu of fractional shares) pursuant
to Section .6(d), (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Company Stock Certificates shall pass, only upon receipt of the
Company Stock Certificates by the Exchange Agent, and shall be in such
form and have such other provisions as Parent may reasonably specify,
including a lock-up provision for a period not to exceed ninety (90)
days after the Effective Time for 50% of the aggregate Preferred
Merger Shares (with any Preferred Merger Shares subject to the Escrow
being subject to the lock-up), issuable to Stockholders); (ii) such
other customary documents as may be required pursuant to such
instructions; and (iii) instructions for use in effecting the
surrender of the Company Stock Certificate in exchange for
certificates representing shares of Parent Common Stock (and cash in
lieu of fractional shares)."
3. 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, and all applicable Schedules to the
Merger Agreement shall be amended accordingly.
4. 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
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Name:_______________________________________
Title: Senior Vice President, Legal and
Corporate Development
MERGER SUB:
TIKAL ACQUISITION CORP.
By: /s/ DOUGLAS O. EBERSOLE
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Name:_______________________________________
Title: Senior Vice President, Legal and
Corporate Development
COMPANY:
EOS BIOTECHNOLOGY, INC.
By: /s/ ROBERT F. WILLIAMSON
-----------------------------------------
Name:_______________________________________
Title: President and Chief Operating Officer
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