FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Exhibit 2.1
EXECUTION VERSION
FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Amendment”), is made and entered into as of August 14, 2019, by and among Restoration Robotics, Inc., a Delaware corporation (“Radiant”), Restoration Merger Sub Ltd., a company organized under the laws of Israel and a direct, wholly owned subsidiary of Radiant (“Merger Sub”) and Venus Concept Ltd., a company organized under the laws of Israel (the “Company” and together with Radiant and Merger Sub, the “Parties”, and each individually, a “Party”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement (as defined below).
to time, the “Credit Agreement”) and (b) the commitment letter, dated as of March 15, 2019 by and among the aforementioned parties (as amended from time to time, the “Conditional Consent Letter”)); pursuant to which, among other things as a condition to the consent of the Commitment Parties (as defined in the Conditional Consent Letter), the Company has agreed that (1) it must raise cash proceeds in one or more issuances of common equity interests or Convertible Bond Indebtedness (as defined in the Credit Agreement) of the Company or Radiant, in an aggregate amount of at least $20,000,000 (exclusive of any investment by a Commitment Party) which will occur not later than the close of business on the Closing Date (the “New Equity Financing”) and (2) the Loan Parties (as defined in the Credit Agreement) shall have Unrestricted Cash (as defined in the Credit Agreement) of at least $20,000,000 immediately after giving effect to the transactions contemplated by the Merger Agreement (the “Cash Balance Requirement” and together with the New Equity Financing, the “Madryn Consent Requirements”);
Section 1. Definitions.
(a) | The definitions of “Pre-Closing Financings”, “New Equity Financing” and “Madryn Consent Requirements” contained in this Amendment are hereby added to Exhibit A of the Merger Agreement. |
(b) | The definition of “Radiant Post-Closing Financing” contained in Exhibit A to the Merger Agreement is hereby amended and restated in its entirety as follows: |
“Radiant Post-Closing Financing” means the Pre-Closing Financings and the New Equity Financing.
Section 2. Recitals. Recital J of the Merger Agreement is hereby amended and restated in its entirety as follows:
“Immediately prior to the execution and delivery of this Agreement, and as a condition of the willingness of Radiant, Merger Sub and the Company to enter into this Agreement, certain investors have executed the Equity Commitment Letter, in the form attached hereto as Exhibit F, with Radiant and the Company, pursuant to which such investors have agreed to purchase shares of Radiant Common Stock prior to the Closing in connection with the Radiant Post-Closing Financing.”
2
Section 3. Cooperation with Financing. Section 4.8 of the Merger Agreement is hereby amended to add a new clause (i) which shall read as follows:
“(i) Notwithstanding the foregoing and without regard to any other limitations set forth in this Section 4.8, prior to the Closing, Radiant shall use its commercially reasonable efforts to provide, and shall cause its Subsidiaries to provide, and shall cause its representatives, directors, officers, employees, consultants and advisors, including its legal and accounting advisors (in each case at the Company’s sole expense with respect to any reasonable, out-of-pocket and documented expenses incurred by Radiant or its Subsidiaries in connection therewith) to provide, such cooperation as is reasonably requested by the Company in connection with causing the Madryn Consent Requirements to be satisfied.”
Section 4. Conditions to the Obligations of Each Party. Section 6.6 of the Merger Agreement is hereby amended and restated in its entirety as follows:
“Section 6.6 Madryn Consent Requirements. The Madryn Consent Requirements have been satisfied.”
Section 5. Waiver. Each party hereto hereby agrees that entry into the Letter Agreement and Credit Documents Amendment and the transactions contemplated thereby (including the Pre-Closing Financing and the New Equity Financing) do not require additional disclosures by the Company under the Agreement or constitute a breach by the Company of any covenant or representation or warranty under the Agreement.
Section 6. Full Force and Effect. Except as otherwise expressly provided herein, all of the terms and conditions of the Merger Agreement remain unchanged and continue in full force and effect.
Section 7. Governing Law, Jurisdiction; Waiver of Trial by Jury. Section 10.2, Section 10.3 and Section 10.5 through 10.12 of the Merger Agreement are hereby incorporated into this Amendment by reference mutatis mutandis.
Section 8. Entire Agreement; Counterparts; Exchanges by Facsimile. This Amendment, the Merger Agreement, the Confidentiality Agreement and the other agreements, schedules and exhibits referred to in the Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof and thereof. This Amendment may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Amendment (in counterparts or otherwise) by all Parties by facsimile or electronic transmission via “.pdf’ shall be sufficient to bind the Parties to the terms and conditions of this Amendment.
Section 9. Headings. The headings contained in this Amendment are intended solely for convenience and shall not affect the rights of the Parties.
[Remainder of page intentionally left blank]
3
RADIANT | ||
RESTORATION ROBOTICS, INC. | ||
By: | /s/ Xxxx Hair | |
Name: | Xxxx Hair | |
Title: | Chief Financial Officer |
[Signature Page to Amendment to the Agreement and Plan of Merger]
MERGER SUB | ||
RADIANT MERGER SUB LTD. | ||
By: | /s/ Xxxx Hair | |
Name: | Xxxx Hair | |
Title: | Authorized Person |
[Signature Page to Amendment to the Agreement and Plan of Merger]
COMPANY | ||
VENUS CONCEPT LTD. | ||
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Chief Executive Officer |
[Signature Page to Amendment to the Agreement and Plan of Merger]