AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AMENDMENT
NO. 2 TO THE AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 2, dated January 16, 2007 (this “Amendment”), by and among ANGIODYNAMICS,
INC., a Delaware corporation (“Parent”),
ROYAL
I, LLC, a Delaware limited liability company and a direct, wholly-owned
subsidiary of Parent (“Merger
Sub”),
and
XXXX MEDICAL SYSTEMS, INC., a Delaware corporation (the “Company”),
each
of which are parties to that certain Agreement and Plan of Merger dated as
of
November 27, 2006, as amended by Amendment No. 1 dated December 7, 2006
(the “Agreement”).
RECITALS
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Agreement; and
WHEREAS,
Section 8.1 of the Agreement provides that the Agreement may be amended by
execution of a written instrument executed by the Parties; and
WHEREAS,
the parties have determined that it is advisable to amend the Agreement to
affect the foregoing as well as to amend certain other provisions of the
Agreement, as set forth set forth herein; and
NOW,
THEREFORE, in consideration of the foregoing premises, and the agreements,
covenants, representations and warranties contained in the Agreement and
herein,
and other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged and accepted, the parties, intending to be legally bound,
hereby agree as follows:
1.
Section 7.3(b) of the Agreement shall be amended and restated in its
entirety as follows:
“(b)
Termination
Fee.
If this
Agreement is terminated (i) by Parent pursuant to Section 7.1(f) or
(ii) by the Company or Parent pursuant to Section 7.1(b) or
Section 7.1(g) of this Agreement and
prior to
any such termination, (A) any Person (other than Parent or its affiliates)
shall have made a Company Acquisition Proposal which shall have been publicly
proposed by such Person or any such Company Acquisition Proposal shall have
become known to the stockholders of the Company generally (other than as
a
result of disclosure by Parent, any of its Subsidiaries or any of their
respective Representatives) and (B) within 12 months after such termination
of this Agreement, a Company Change of Control Transaction shall have been
consummated, then the Company shall pay to Parent, in immediately available
funds, a nonrefundable fee in the amount of $6,500,000 (the “Termination
Fee”).
Any
Termination Fee shall be paid to Parent by the Company upon termination of
this
Agreement in the case of a termination pursuant to clause (i) above and
upon the consummation of a Company Change of Control Transaction in the case
of
a termination pursuant to clause (ii) above.”
2.
Section 4.3(a) shall be amended and restated in its entirety as
follows:
“During
the Pre-Closing Period, the Company shall not, directly or indirectly, and
shall
not, directly or indirectly, authorize or permit any of the other Acquired
Corporations or any Representative of any of the Acquired Corporations to,
(i) solicit, encourage, initiate or seek the making, submission or
announcement of any Company Acquisition Proposal, (ii) furnish any
information regarding any of the Acquired Corporations to any Person (other
than
Parent or Merger Sub) in connection with or in response to a Company Acquisition
Proposal or any similar inquiry, (iii) engage or participate in any
discussions or negotiations with any Person (other than Parent or Merger
Sub)
with respect to any Company Acquisition Proposal or any similar inquiry,
(iv) approve, endorse or recommend any Company Acquisition Proposal, or
(v) enter into any letter of intent or similar document or any Contract
contemplating or otherwise relating to any Company Acquisition Transaction;
provided,
however,
that
this Section 4.3 shall not prohibit (A) the Company, or the Board of
Directors of the Company, prior to the approval of this Agreement by the
Company
Stockholders, from furnishing nonpublic information regarding the Acquired
Corporations to, or entering into or participating in discussions or
negotiations with, any Person in response to an unsolicited, bona fide written
Company Acquisition Proposal that the Board of Directors of the Company
concludes in good faith, after consultation with its financial advisors,
could
result in a Company Superior Offer if (1) none of the Acquired Corporations
or any Representative of any of the Acquired Corporations shall have violated
any of the restrictions set forth in this Section 4.3(a) in connection with
the receipt of such Company Acquisition Proposal, (2) the Board of
Directors of the Company concludes in good faith, after consultation with
its
outside legal counsel, that such action with respect to such Company Acquisition
Proposal is required to comply with the fiduciary duties of the Board of
Directors of the Company to the Company Stockholders under applicable Legal
Requirements, (3) the Company gives to Parent the notice required by
Section 4.3(b), and (4) the Company furnishes any information provided
to the maker of the Company Acquisition Proposal only pursuant to a
confidentiality agreement between the Company and such Person on substantially
the same terms as the Confidentiality Agreement, and such furnished information
is delivered to Parent at substantially the same time (to the extent such
information has not been previously furnished by the Company to Parent);
or
(B) subject to the obligation of the Company and the Company’s Board of
Directors not to withhold, withdraw or modify its recommendation except as
expressly set forth in Section 4.3(d), the Company from complying with
Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any
Company Acquisition Proposal.”
3.
Section 4.3(d) shall be amended and restated in its entirety as
follows:
“Notwithstanding
anything in this Agreement to the contrary, the Board of Directors of the
Company may at any time prior to receipt of the approval of the Company
Stockholders of this Agreement, withhold, withdraw or modify the Company
Recommendation in a manner adverse to Parent in respect of a Company Acquisition
Transaction if: (i) an unsolicited, bona fide written offer is made to the
Company by a third party for a Company Acquisition Transaction, and such
offer
is not withdrawn; (ii) the Company’s Board of Directors determines in good
faith after consultation with its financial advisors that such offer constitutes
a Company Superior Offer; (iii) following consultation with outside legal
counsel, the Company’s Board of Directors determines that the withholding,
withdrawal or modification of the Company Recommendation is required to comply
with the fiduciary duties of the Board of Directors of Company to the Company
Stockholders under applicable Legal Requirements; (iv) the Company
Recommendation is not withheld, withdrawn or modified in a manner adverse
to
Parent at any time prior to two business days after Parent receives written
notice from the Company confirming that the Company’s Board of Directors has
determined that such offer is a Company Superior Offer; and (v) at the end
of such two business day period, after taking into account any adjustment
or
modification of the terms of this Agreement proposed by Parent (and any
adjustment or modification of the terms of such Company Acquisition Proposal),
the Board of Directors of the Company again makes the determination in good
faith after consultation with its outside legal counsel and financial advisors
that such offer is a Company Superior Offer and that the withholding, withdrawal
or modification of the Company Recommendation is required to comply with
the
fiduciary duties of the Board of Directors of the Company to the stockholders
of
the Company under applicable Delaware law. Notwithstanding anything in this
Agreement to the contrary, the Board of Directors of the Company may at any
time
prior to receipt of the approval of the Company’s stockholders of this
Agreement, withhold, withdraw or modify the Company Recommendation in a manner
adverse to Parent other than in respect of a Company Acquisition Transaction
if:
(i) following consultation with outside legal counsel, the Company’s Board
of Directors determines in good faith that the withdrawal or modification
of
such Company Recommendation is required to comply with the fiduciary duties
of
the Board of Directors of Company to the stockholders of the Company under
applicable Legal Requirements; (ii) the Company Recommendation is not
withdrawn or modified in a manner adverse to Parent at any time prior to
two
business days after Parent receives written notice from the Company confirming
that the Company’s Board of Directors has determined to withdraw or modify the
Company Recommendation and specifying the reasons therefor, and (iii) at
the end of such two business day period, after taking into account any
adjustment or modification of the terms of this Agreement proposed by Parent,
the Board of Directors of the Company again makes the determination in good
faith after consultation with its outside legal counsel and financial advisors
that the withdrawal or modification of such Company Recommendation is required
to comply with the fiduciary duties of the Board of Directors of the Company
to
the stockholders of the Company under applicable Legal Requirements. The
Board
of Directors of the Company may not withhold, withdraw or modify the Company
Recommendation in a manner adverse to Parent except in compliance in all
respects with this Section 4.3(d).”
4.
Except
as specifically amended hereby, the terms and provisions of the Agreement
shall
continue and remain in full force and effect and the valid and binding
obligation of the parties thereto in accordance with its terms. All references
in the Agreement (and in any other agreements, documents and instruments
entered
into in connection therewith) to the “Agreement” shall be deemed for all
purposes to refer to the Agreement, as amended by this Amendment.
2
5.
This
Amendment may be executed in one or more counterparts, each of which shall
be an
original, with the same effect as of the signatures hereto and thereto were
upon
the same instrument.
6.
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of Delaware without regard to the conflicts of law rules of such state.
[SIGNATURE
PAGE FOLLOWS]
3
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the
date first above written.
|
ANGIODYNAMICS,
INC.
|
||
|
By:
|
|
/s/Xxxxxx
X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
|
|
Title:
Vice President - Chief Financial Officer and Treasurer
|
|
|
|
||
|
ROYAL
I, LLC
|
||
|
By:
|
|
/s/Xxxxxx
X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
|
|
Title:
Vice President - Chief Financial Officer and Treasurer
|
|
|
|
||
|
XXXX
MEDICAL SYSTEMS, INC.
|
||
|
By:
|
|
/s/Xxxxxxx
X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
|
Title:
Chief Financial Officer
|
|
4
