EX-101 INSTANCE DOCUMENT
EX-2.5 6 m70918exv2w5.htm EX-2.5 EX-2.5
Exhibit 2.5
FIRST AMENDMENT TO
OPTION AGREEMENT AND AGREEMENT AND PLAN OF MERGER
This First Amendment, dated as of May 26, 2011 (this Amendment), amends the below-specified portions of (a) that certain Option Agreement, dated as of April 11, 2011 (the Option Agreement), by and among Mpex Pharmaceuticals, Inc. (the Company), Aptalis Holdings Inc. (f/k/a Axcan Holdings Inc.) (Aquiror) and Axcan Lone Star Inc. (Sub, and collectively with Acquiror, Axcan) and (b) that certain Agreement and Plan of Merger, dated as of April 11, 2011 (the Merger Agreement), by and among the Company, Acquiror, Sub and, solely with respect to Sections 1.1, 1.15, 1.16, 1.17, 1.18, 5.9, 5.16 and 7.3 and Articles VIII and IX of the Merger Agreement, the Securityholders Representative Committee. All capitalized terms used and not otherwise defined herein have the respective meanings given to them in the Merger Agreement.
Option Agreement Section 2.1
The first sentence of Section 2.1 of the Option Agreement is hereby amended and restated in its entirety to read as follows:
The Company agrees to effect the Divestiture as soon as practicable following the Effective Date, and in any event by no later than June 30, 2011.
Option Agreement Section 2.3.1
Section 2.3.1 of the Option Agreement is hereby amended and restated in its entirety to read as follows:
Within fourteen (14) calendar days after the earlier of (a) the Companys delivery of the Divestiture Notice and (b) July 2, 2011, the Company shall deliver (the date of such delivery being the Delivery Date) to Axcan a completed set of customary disclosure schedules to, and all documents, schedules, exhibits and other instruments necessary for evaluating the Merger and exercising the Termination Right (the Company Deliveries).
Merger Agreement Recital B
Recital B of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
Pursuant to that certain Option Agreement by and among the Company, Acquiror and Sub dated as of the Agreement Date (the Option Agreement), the Company has granted Acquiror and Sub an option (the Termination Right) to terminate this Agreement for a period of time following the earlier of (i) the Companys delivering to Acquiror and Sub a notice of completion of the Divestiture and (ii) July 2, 2011.
Except as set forth above, the terms and conditions of each of the Option Agreement and the Merger Agreement remain in all respects unmodified, and in full force and effect.
IN WITNESS WHEREOF, the Company, Acquiror and Sub have caused this Amendment to be executed by their duly authorized representatives as of the date first set forth above.
MPEX PHARMACEUTICALS, INC. | ||||
By: | /s/ Daniel D. Burgess | |||
Name: | ||||
Title: | President and Chief Executive Officer | |||
APTALIS HOLDINGS INC. (F/K/A AXCAN HOLDINGS INC.) | ||||
By: | /s/ Theresa M. Stevens | |||
Name: | ||||
Title: | Senior VP, Business Development and General Counsel and Secretary | |||
AXCAN LONE STAR INC. | ||||
By: | /s/ Theresa M. Stevens | |||
Name: | ||||
Title: | Senior VP, Business Development and General Counsel and Secretary |