EXHIBIT 2.2
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Agreement No. 1
to Merger Agreement and Plan of Regorganization
This Amendment No. 1 (the "Amendment") to the Merger Agreement and Plan
of Reorganization dated July 8, 2004, by and among Treasure Mountain Holdings,
Inc., TMH Acquisition Corp. and Vyteris, Inc. is dated as of September 29, 2004.
WHEREAS, Treasure Mountain Holdings, Inc., a Nevada corporation having
its principal place of business at 1390 South 0000 Xxxx Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx 00000 ("Treasure Mountain"), TMH Acquisition Corp., a Delaware
corporation having its principal place of business at 1390 South 0000 Xxxx Xxxxx
000, Xxxx Xxxx Xxxx, Xxxx 00000 ("Vyteris Mergerco") and Vyteris, Inc., a
Delaware corporation having its principal place of business at 00-00 Xxxxxxx
Xxxxx, Xxxx Xxxx, XX 00000 ("Vyteris") entered into a Merger Agreement and Plan
of Reorganization (the "Agreement") as of July 8, 2004.
WHEREAS, Treasure Mountain, Vyteris Mergerco and Vyteris desire to amend
the Agreement pursuant to the terms hereof;
WHEREAS, capitalized terms not otherwise defined herein shall have their
respective meanings as set forth in the Agreement.
NOW, THEREFORE, in consideration of the premises, covenants and
conditions hereof, the Companies mutually agree to amend the Agreement as
follows:
1. The lead-in to Section 2.8 of the Agreement is hereby deleted in its
entirety and replaced to read as follows:
"NO ADVERSE EVENTS. Since the date of the most recent Vyteris Financial
Statements, except for (a) matters referred to in the Vyteris Financial
Statements, (b) matters which do not, individually or in the aggregate, have a
Material Adverse Effect on Vyteris, (c) matters referred to in Vyteris' Private
Placement Memorandum, dated June 18, 2004, a copy of which has been furnished to
Treasure Mountain's counsel, as supplemented by Supplement Nos. 1, 2 and 3
thereto, copies of which have been furnished to Treasure Mountain's counsel
(such memorandum, as so supplemented, the "Private Placement Memorandum"), and
(d) matters set forth in Schedule 2.8 of the Vyteris Schedule of Exceptions:"
2. Section 2.12 of the Agreement is hereby deleted in its entirety and
replaced to read as follows:
"2.12 TITLE TO ASSETS. Except as provided for in the Vyteris Financial
Statements or as described in the Private Placement Memorandum or in Schedule
2.12 of the Vyteris Schedule of Exceptions, Vyteris has good and marketable
title to all of its furniture, fixtures, equipment, inventory and other assets
owned by Vyteris, and such assets are owned free and clear of all security
interests, pledges, liens, restrictions and encumbrances of every kind and
nature."
3. Section 2.13 of the Agreement is hereby deleted in its entirety and
replaced to read as follows:
"2.13 MATERIAL CONTRACTS. A copy (or summary if oral) of all material
agreements, contracts, letters of intent, arrangements, understandings and
commitments, whether written or oral, to which Vyteris is a party, or from which
Vyteris will receive substantial benefits and which are material to Vyteris
(collectively, "Vyteris Contracts"), have been delivered to Treasure Mountain or
its counsel and are either listed on Schedule 2.13(a) of the Vyteris Schedule of
Exceptions or described in Supplement No. 3 to the Private Placement Memorandum.
Any Vyteris Contracts entered into between the date hereof and the Closing will
be delivered to Treasure Mountain or its counsel prior to Closing. Except as set
forth in Schedule 2.13(b) of the Vyteris Schedule of Exceptions, the validity
and enforceability of, and rights of Vyteris contained in, each such Vyteris
Contract shall not be adversely effected by the Merger or the transactions
contemplated hereby or any actions taken in furtherance hereof. Except as set
forth in Schedule 2.13(c) of the Vyteris Schedule of Exceptions, Vyteris is not
in material default under any Vyteris Contract."
4. Section 10.9 of the Agreement is hereby deleted in its entirety and
replaced to read as follows:
"10.9 FINANCING. Vyteris will have raised gross cash proceeds from
equity financings during the period from December 31, 2003 until immediately
prior to the Effective Time in an amount equal to at least $15,000,000
(including in such amount the principal amount of any debt that is converted to
equity during such period), provided that Vyteris shall also have entered into a
working capital credit facility with a cash availability as of October 1, 2004
of at least $5,000,000." .
5. Section 10.13 of the Agreement is hereby deleted in its entirety and
replaced to read as follows:
"10.13 VOTING AGREEMENTS. Treasure Mountain and Vyteris shall have
received an irrevocable agreement in substantially the form attached as Exhibit
D from Xxxxxxx Xxxxx Specialty Group LLC to vote all shares of Treasure Mountain
capital stock issuable to it hereunder in favor of the Subsequent Actions."
6. Section 11.13 of the Agreement is hereby deleted in its entirety and
replaced to read as follows:
"11.13 VOTING AGREEMENTS. Vyteris shall have received irrevocable
agreements in substantially the form attached as Exhibit D from Scimitar
Holdings LLC and Xxxxxxx Xxxxx Specialty Group, LLC agreeing to vote all shares
of Treasure Mountain capital stock owned by them or to be acquired by them
hereunder in favor of the Subsequent Actions."
7. There shall be added a new Section 11.19 of the Agreement which shall
read as follows:
"11.19 FINANCING. Vyteris will have raised gross cash proceeds from
equity financings during the period from December 31, 2003 until immediately
prior to the Effective Time in an amount equal to at least $15,000,000
(including in such amount the principal amount of any debt that is converted
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to equity during such period), provided that Vyteris shall also have entered
into a working capital credit facility with a cash availability as of October 1,
2004 of at least $5,000,000."
8. Section 13A(b) of Agreement is deleted in its entirety and replaced to
read as follows:
"(b) by any of the parties hereto if the Merger shall not have been
consummated on or before October 15, 2004 (the "Cut-off Date"), unless the
failure of the Closing to occur by such date shall be due to the failure of the
party seeking to terminate this Agreement to perform or observe the covenants
and agreements of such party set forth herein;"
9. Except as modified herein, the terms and conditions of the Agreement
shall remain unmodified and in full force and effect. This Amendment may be
executed in counterparts, all of which, when taken together, shall constitute
the entire Amendment.
IN WITNESS WHEREOF, the Companies have executed this Amendment as of the
day and year first above written.
TREASURE MOUNTAIN HOLDINGS, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx, III
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Name: Xxxxxx X. Xxxxxx, III
Title: President
TMH ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx, III
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Name: Xxxxxx X. Xxxxxx, III
Title: President
VYTERIS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xx Xxxxxx
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Name: Xxxxxxx Xx Xxxxxx
Title: President
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