AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.4
EXECUTION
COPY
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of
March 19, 2009, is entered into by and among Endocare, Inc., a Delaware corporation
(“Parent”), Orange Acquisitions Ltd., an Israeli corporation and a wholly owned subsidiary
of Parent (“Merger Sub”), and Galil Medical Ltd., an Israeli corporation (the
“Company”).
WHEREAS, Parent, Merger Sub and the Company have entered into an Agreement and Plan of Merger,
dated as of November 10, 2008 (the “Merger Agreement”);
WHEREAS, the parties desire to amend the Merger Agreement as set forth herein; and
WHEREAS, pursuant to Section 9.2 of the Merger Agreement, the Merger Agreement may be amended
by the parties by action taken or authorized by each party’s respective board of directors, and set
forth in a writing designated as an amendment and signed on behalf of each of the parties.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section 1.1 Definitions. Capitalized terms used herein but not defined herein shall
have the respective meanings given to them in the Merger Agreement.
Section 1.2 Amendments.
(a) Section 4.4(c) of the Merger Agreement is hereby deleted in its entirety and replaced by
the following:
(c) The authorized Share Capital of the Company immediately prior to
the Closing shall consist of NIS 3,950,089.27 divided into 395,008,923
Ordinary Shares and 4 Preferred A-1 Shares.
(b) Section 4.4(d) of the Merger Agreement is hereby deleted in its entirety and replaced by
the following:
(d) As of immediately prior to the Closing (and following
consummation of the transactions contemplated by the Pre-Closing
Shareholders Agreement), and assuming no exercise of any outstanding
Company Share Options after November 10, 2008, (i) 365,569,173 Company
Ordinary Shares shall be issued
and outstanding, (ii) 25,209,334 Company Ordinary Shares shall be reserved
for issuance upon exercise of Company Share Options issued and
outstanding, and (iii) 4,230,416 Company Ordinary Shares shall be
authorized and reserved for future issuance pursuant to the Company Option
Plans (other than Company Ordinary Shares authorized and reserved for
future issuance upon exercise of Company Share Options issued and
outstanding on such date). Each issued and outstanding Company Share will
be, and each Company Share reserved for issuance as specified above will
be, upon issuance on the terms and conditions specified in the instruments
pursuant to which it is issuable, duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights or similar rights, and
will be issued in compliance in all respects with applicable Law and the
Company Charter Documents.
(c) Section 8.4(c)(v) of the Merger Agreement is hereby deleted in its entirety and replaced
by the following:
(v) the Company has breached its obligations under
Section 5.4 or Section 5.11.
(d) Section 8.7 of the Merger Agreement is hereby deleted in its entirety and replaced by the
following:
Effect of Termination. If this Agreement is terminated, all
obligations of the parties under this Agreement will terminate, without
any Liability on the part of any party hereto to any Person in respect
hereof or the transactions contemplated hereby, and no party shall have
any claim against another (and no Person shall have any rights against
such party), whether under contract, tort or otherwise, except that
Section 5.18, this Article VIII and Article IX
hereof, the Confidentiality Agreement and any Ancillary Agreement entered
into prior to termination of this Agreement with respect to any breaches
occurring prior to any termination of this Agreement, will survive. The
remedies of the parties set forth in this Article VIII are the
sole and exclusive remedies of the parties if this Agreement is
terminated.
Section 1.3 Counterparts. This Amendment may be executed in any number of identical
counterparts, each of which shall be deemed an original for all purposes, and all of which together
shall constitute one agreement.
Section 1.4 Facsimile Signature. This Amendment may be executed by facsimile
signature and a facsimile signature or other electronically transmitted signature shall constitute
an original for all purposes.
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Section 1.5 Agreement in Force. As amended hereby, the Merger Agreement remains in
full force and effect.
Section 1.6 Governing Law; Disputes; Jurisdiction. This Amendment and all disputes or
controversies arising out of or relating to this Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without regard to the laws of any
other jurisdiction that might be applied because of the conflicts of laws principles of the State
of Delaware. Any dispute, controversy or claim relating to or arising under, out of or in
connection with this Amendment shall be determined by arbitration in accordance with Section 9.3 of
the Merger Agreement. Each of the parties irrevocably agrees that any legal Action or proceeding
arising out of or relating to this Amendment, that is not subject to arbitration pursuant to
Section 9.3 of the Merger Agreement, brought by any other party or its successors or assigns shall
be brought and determined in accordance with the provisions of Section 9.11 of the Merger
Agreement.
Section 1.7 No Third-Party Beneficiaries. Nothing in this Amendment, express or
implied, is intended to or shall confer upon any Person, including employees of the Company, other
than the parties and their respective successors and permitted assigns any legal or equitable
right, benefit or remedy of any nature under or by reason of this Amendment.
[The Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first above
written.
| ENDOCARE, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxxxx
|
|||||
| Title: | Senior Vice President, Finance and Chief Financial Officer |
|||||
| ORANGE ACQUISITIONS LTD. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxxxx
|
|||||
| Title: | Treasurer | |||||
| GALIL MEDICAL LTD. | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: | President and Chief Executive Officer | |||||
| By: Name: |
/s/ Xxxxx Xxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
