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EXECUTION VERSION AGREEMENT AND PLAN OF MERGER By and Among BIOBLAST PHARMA LTD. TREBLAST LTD. AND ENLIVEX THERAPEUTICS LTD. Dated as of

Key Takeaway: AGREEMENT AND PLAN OF MERGER BIOBLAST PHARMA LTD. ENLIVEX THERAPEUTICS LTD. Dated as of November 19, 2018 Page Article I The Merger 1 Section 1.01 The Merger 1 Section 1.02 Closing 2 Section 1.03 Effective Time 2 Section 1.04 Effects 2 Section 1.05 Articles of Association

Full Press Release Details

AGREEMENT AND PLAN OF MERGER
BIOBLAST PHARMA LTD.
ENLIVEX THERAPEUTICS LTD.
Dated as of November 19, 2018
Page
Article I
The Merger 1
Section 1.01 The Merger 1
Section 1.02 Closing 2
Section 1.03 Effective Time 2
Section 1.04 Effects 2
Section 1.05 Articles of Association of the Surviving Company 2
Section 1.06 Directors and Officers of the Surviving Company 2
Section 1.07 Contingent Value Right 2
Article II
Effect on Share Capital; Exchange of Certificates 3
Section 2.01 Effect on Share Capital of Enlivex 3
Section 2.02 Exchange of Certificates 5
Article III
Representations and Warranties of Bioblast and Merger Sub 8
Section 3.01 Corporate Organization 8
Section 3.02 Capitalization 9
Section 3.03 Authority; No Violation 10
Section 3.04 Consents and Approvals 11
Section 3.05 Reports 11
Section 3.06 Financial Statements 11
Section 3.07 Advisors' Fees 12
Section 3.08 Absence of Certain Changes or Events 12
Section 3.09 Legal Proceedings 13
Section 3.10 Taxes and Tax Returns 13
Section 3.11 Employee Benefit Plans 15
Section 3.12 Internal Control 17
Section 3.13 Compliance with Laws; Licenses 18
Section 3.14 Material Contracts 18
Section 3.15 Environmental Liability 20
Section 3.16 Takeover Laws 21
Section 3.17 Affiliate Transactions 21
Section 3.18 Intellectual Property 21
Section 3.19 Title to Assets 23
Section 3.20 Real Property; Leasehold 23
Section 3.21 Compliance with Laws; Regulatory Compliance 24
Section 3.22 Anti-Corruption Laws 25
Section 3.23 Fairness Opinion 25
Section 3.24 Insurance 26
Section 3.25 Books and Records 26
Section 3.26 Grants and Subsidies 26
Section 3.27 No Other Representations or Warranties; Reliance 26
Article IV
Representations and Warranties of Enlivex 26
Section 4.01 Corporate Organization 26
Section 4.02 Capitalization 27
Section 4.03 Authority; No Violation 28
Section 4.04 Consents and Approvals 28
Section 4.05 Reports 29
Section 4.06 Financial Statements 29
Section 4.07 Advisors' Fees 30
Section 4.08 Absence of Certain Changes or Events 30
Section 4.09 Legal Proceedings 30
Section 4.10 Taxes and Tax Returns 30
Section 4.11 Employee Benefit Plans; Employees 32
Section 4.12 Internal Control 33
Section 4.13 Compliance with Laws; Licenses 34
Section 4.14 Material Contracts 34
Section 4.15 Environmental Liability 36
Section 4.16 Takeover Laws 36
Section 4.17 Enlivex Information 36
Section 4.18 Affiliate Transactions 36
Section 4.19 Intellectual Property 36
Section 4.20 Title to Assets 38
Section 4.21 Real Property; Leasehold 38
Section 4.22 Compliance with Laws; Regulatory Compliance 39
Section 4.23 Anti-Corruption Laws 40
Section 4.24 Insurance 40
Section 4.25 Books and Records 40
Section 4.26 Grants and Subsidies 40
Section 4.27 No Other Representations or Warranties 41
Section 4.28 Inapplicability of Section 328 of the Companies Law; No Controlling Shareholder 41
Article V
Covenants Relating to Conduct of Business 41
Section 5.01 Conduct of Businesses Prior to the Effective Time 41
Section 5.02 Bioblast Forbearances 41
Section 5.03 Enlivex Forbearances 43
Section 5.04 Control of Other Party's Business 44
Section 5.05 Enlivex No Solicitation 44
Section 5.06 Bioblast No Solicitation 47
Additional Agreements 49
Section 6.01 Preparation of the Proxy Statement; Shareholder Approvals; Listing Application 49
Section 6.02 Access to Information; Confidentiality 51
Section 6.03 Required Actions 51
Section 6.04 Merger Proposal 52
Section 6.05 Enlivex Shareholders Meeting 53
Section 6.06 Bioblast Shareholders' Meeting 53
Section 6.07 Merger Sub Shareholders Meeting 54
Section 6.08 Fees and Expenses 54
Section 6.09 Certain Tax Matters 55
Section 6.10 No Bioblast Change in Control 55
Section 6.11 Governance and Employment Matters 55
Section 6.12 Directors' and Officers' Indemnification and Insurance 55
Section 6.13 Obligations of Merger Sub 56
Section 6.14 Payment for Third Party Consents 56
Section 6.15 Interim Financials 56
Section 6.16 Updated Capitalization Information 56
Section 6.17 IIA Notice 56
Section 6.18 Listing of Bioblast Ordinary Shares on Nasdaq 56
Section 6.19 CVR Agent 56
Section 6.20 Enlivex Corporate Actions 56
Section 6.21 Concurrent Private Offering 57
Article VII
Conditions Precedent 57
Section 7.01 Conditions to Each Party's Obligation to Effect the Merger 57
Section 7.02 Conditions to Obligations of Bioblast 58
Section 7.03 Conditions to Obligations of Enlivex 58
Article VIII
Termination and Amendment 59
Section 8.01 Termination 59
Section 8.02 Effect of Termination 60
Section 8.03 Amendment 61
Section 8.04 Extension; Waiver 61
Article IX
General Provisions 61
Section 9.01 Non-survival of Representations and Warranties 61
Section 9.02 Notices 61
Section 9.03 Definitions 62
Section 9.04 Other Defined Terms 66
Section 9.05 Interpretation 69
Section 9.06 Severability 69
Section 9.07 Counterparts; Facsimile Signatures 69
Section 9.08 Entire Agreement; No Third Party Beneficiaries 69
Section 9.09 Governing Law 70
Section 9.10 Assignment 70
Section 9.11 Specific Enforcement 70
Section 9.12 Jurisdiction 70
Section 9.13 Publicity 70
Section 9.14 Compliance with Deadlines 71
Exhibits and Schedules:
Exhibit A Form of Voting Agreement
Exhibit B Articles of Association of the Surviving Company
Exhibit C Form of Merger Proposal
Exhibit D Form of Lock-Up Agreement
Exhibit E Form of CVR Agreement
Schedule I Bioblast Shareholders Signing Voting Agreements.
Schedule II Lock-Up Persons
Schedule III Knowledge Persons
Schedule IV Required Foreign Regulatory Approvals
PLAN OF MERGER, dated as of November 19, 2018 (this "Agreement"), is by and among BIOBLAST PHARMA LTD., a company
formed under the laws of the State of Israel ("Bioblast"), TREBLAST LTD., a company formed under the laws of
the State of Israel and wholly owned by Bioblast ("Merger Sub"), and ENLIVEX THERAPEUTICS LTD., a company formed
under the laws of the State of Israel ("Enlivex").
WHEREAS, the respective
boards of directors of Bioblast (the "Bioblast Board") and Enlivex (the "Enlivex Board")
have unanimously adopted this Agreement, and such respective boards of directors have determined that the terms of this Agreement,
including the Merger are fair to, and in the respective best interests, of Bioblast and Enlivex, respectively, and their respective
shareholders and that, considering the financial position of Enlivex and Merger Sub, no reasonable concern exists that the Surviving
Company will be unable to fulfill the obligations of Enlivex to its creditors;
of Directors of Merger Sub has approved this Agreement and declared it advisable that Merger Sub enter into this Agreement and
consummate the Transactions, including the Merger, and has recommended that Bioblast, as its sole shareholder, approve and adopt
this Agreement, the Merger and the other Transactions;
WHEREAS, simultaneously
with the execution and delivery of this Agreement, as a condition to Enlivex's entering into this Agreement and as an inducement
thereto, Enlivex and certain shareholders of Bioblast identified in Schedule I, who together hold approximately 34.8% of
the issued and outstanding Bioblast Ordinary Shares, are entering into voting and support agreements, substantially in the form
attached as Exhibit A (the "Voting Agreement"), pursuant to which such shareholders are agreeing to take
specified actions in furtherance of the Merger, including voting their respective Bioblast Ordinary Shares in favor of the approval
of the Merger and adoption of this Agreement;
WHEREAS, the Bioblast
Board has recommended that its shareholders approve this Agreement;
WHEREAS, the Enlivex
Board has recommended that its shareholders approve this Agreement;
WHEREAS, for U.S. federal
income tax purposes, the parties hereto intend that the Merger qualify as a "reorganization" within the meaning of
Section 368(a) of the Code (as defined below) (the "Intended Tax Treatment"), and by executing this Agreement,
the parties hereto intend that this Agreement be adopted as a plan of reorganization within the meaning of Treasury Regulations
Sections 1.368-2(g) and 1.368-3; and
Merger Sub and Enlivex desire to make certain representations, warranties, covenants and agreements in connection with the Merger
and also to prescribe various conditions to the Merger.
consideration of the foregoing, the parties hereto, intending to be legally bound, hereby agree as follows:
1.01 The Merger. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with Sections 314 through 327 of the Israeli Companies Law - 5759-1999
(the "Companies Law"), at the Effective Time, Merger Sub shall be merged with and into Enlivex (the "Merger").
At the Effective Time, the separate corporate existence of Merger Sub (as the target company, or Chevrat Ha'Ya'ad)
shall cease and Enlivex (as the absorbing company, or HaChevra Ha'Koletet) shall continue as the surviving corporation
in the Merger (the "Surviving Company"). As a result of the Merger, Enlivex shall (a) become a wholly owned
subsidiary of Bioblast, (b) continue to be governed by the Laws of the State of Israel, (c) have a registered office in the State
of Israel, and (d) succeed to and assume all of the rights, properties and obligations of Merger Sub in accordance with the Companies
Law, and the existing shareholders of Enlivex shall be entitled to the Merger Consideration in accordance with the provisions
1.02 Closing. Unless this Agreement shall have been
terminated in accordance with Section 8.01, the closing (the "Closing") of the Merger shall take place
at the offices of Yigal Arnon & Co., 1 Azrieli Center, Tel Aviv, Israel 6702101 (or pursuant to the electronic or other
remote exchange of all executed documents and other deliverables required by this Agreement to be delivered at Closing, including
pursuant to Article VII) at 7:00 a.m., Eastern time, on the third Business Day following the satisfaction or (to the extent
permitted by Law) waiver by the party or parties entitled to the benefits thereof of the conditions set forth in Article VII
(other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to
the extent permitted by Law) waiver of those conditions), or at such other place, time and date as shall be agreed in writing
between Bioblast and Enlivex. The date on which the Closing occurs is referred to in this Agreement as the "Closing Date."
1.03 Effective Time. As soon as practicable after
the determination of the date on which the Closing is to take place in accordance with Section 1.02, each of Enlivex and
Merger Sub shall (and Bioblast shall cause Merger Sub to), in coordination with each other, inform the Registrar of Companies
of the State of Israel (the "Israeli Registrar of Companies") that all conditions to the Merger under the Companies
Law and this Agreement have been met (together with any other documentation required to be submitted to the Israeli Registrar
of Companies, whether under this Agreement or the Merger Proposal, by the Israeli Registrar of Companies or otherwise) and setting
forth the proposed date for the date of effectiveness of the Merger on which the Israeli Registrar of Companies is requested to
issue a certificate evidencing the Merger in accordance with Section 323(5) of the Companies Law (the "Certificate of
Merger"). The Merger shall become effective upon the issuance by the Israeli Registrar of Companies of the Certificate
of Merger in accordance with Section 323(5) of the Companies Law (the time at which the Merger becomes effective is referred to
herein as the "Effective Time"). For the avoidance of doubt, the Parties intend that the Merger shall be declared
effective and that the issuance by the Israeli Registrar of Companies of the Certificate of Merger in accordance with Section
323(5) of the Companies Law shall both occur on the Closing Date, as a condition to Closing.
1.04 Effects. The Merger shall have the effects
set forth in this Agreement and as specified in the applicable provisions of the Companies Law. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, the Surviving Company shall succeed to all the rights and properties
and the business of Merger Sub, and shall assume all of the debts, claims, liabilities and obligations of Merger Sub, Merger Sub
will be merged with and into Enlivex, and the separate corporate existence of Merger Sub will cease, and the Surviving Company
will become wholly owned (including with respect to any warrants, options or other securities) directly by Bioblast, all as provided
under the Companies Law.
1.05 Articles of Association of the Surviving Company.
At or prior to the Effective Time, the articles of association of Enlivex shall be amended by means of a shareholder vote and
restated to read in their entirety in the form of Exhibit B, and as so amended shall remain in effect from and after
the Effective Time as the articles of association of the Surviving Company (the "Surviving Company Articles")
until duly amended as provided therein or by applicable Law.
1.06 Directors and Officers of the Surviving Company.
At the Effective Time, the directors and officers of the Surviving Company, each to hold office in accordance with the Surviving
Company Articles and until their earlier resignation or removal or until their respective successors are duly elected or appointed
and qualified, shall be Enlivex's current directors and officers.
1.07 Contingent Value Right. Prior to the Effective
Time at a date determined by the Bioblast Board, Bioblast shareholders of record at such date shall be entitled to one CVR issued
by Bioblast in respect of each Bioblast Ordinary Share owned by them, subject to and in accordance with the terms and conditions
of the CVR Agreement. At or prior to the Effective Time, Bioblast and Enlivex shall authorize and duly adopt, execute and deliver,
together with the CVR Agent, the CVR Agreement.
Effect on Share Capital; Exchange of Certificates
2.01 Effect on Share Capital of Enlivex.
the Effective Time, by virtue of the Merger and without any action on the part of Bioblast, Merger Sub or Enlivex, or the holders
of any Enlivex Shares, all outstanding shares of Enlivex, other than Enlivex Ordinary Shares and any Dormant Shares, shall, in
accordance with the Enlivex Charter, be converted into Enlivex Ordinary Shares, and then, each Enlivex Ordinary Share (other than
any Dormant Share) shall be deemed transferred to Bioblast for no consideration other than the right to receive that number of
fully paid and nonassessable Bioblast Ordinary Shares equal to the Exchange Ratio. All such Bioblast Ordinary Shares to be issued
Last updated: Nov 19, 2018