Exhibit 2.1
EXECUTION COPY
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST
AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “First
Amendment”), dated as of December 18, 2002, is by and
among American Medical Systems, Inc., a Delaware corporation
(“Parent”), Snowball Acquisition Corp., a California
corporation and a wholly-owned subsidiary of Parent (“Merger
Subsidiary”), Cryogen, Inc., a California corporation
(“Company”), and Robert Knarr, as Shareholders’
Representative (the “Shareholders’
Representative”).
WHEREAS, the
parties have entered into an Agreement and Plan of Merger, dated as
of December 13, 2002 (the “Merger
Agreement”);
WHEREAS,
Section 11.2(a) of the Merger Agreement permits the parties to
amend the terms thereof; and
WHEREAS, the
parties desire to amend portions of the Merger Agreement as set
forth herein.
ACCORDINGLY, the
parties hereby agree as follows:
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Amendment to Section 1.8(a).
Section 1.8(a) of the Merger Agreement, is hereby amended to
read in its entirety as follows: |
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(a) |
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At Closing, Parent shall pay Forty
Million Dollars ($40,000,000) (the “Initial Payment”)
plus or minus , as the case may be, the Purchase Price
Adjustment (as defined in section 1.8(b)) (as so adjusted, the
“Estimated Initial Merger Consideration”), which shall
be paid by Parent to the Persons and in the amounts as follows:
(i) Three Million Dollars ($3,000,000) (the “Escrow
Funds”) to the Escrow Agent to be held in escrow to secure
any indemnification obligation of the Shareholders under
Section 8.3 and to refund to Parent any negative Purchase
Price Adjustment due Parent after final determination of the
Closing Balance Sheet in accordance with Section 1.10; and
(ii) the balance of the Estimated Initial Merger Consideration
to the Payment Agent |
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