AMENDMENT NO. 2 TO AGREEMENT AND
PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER (this “ Amendment ”) is made and entered
into as of May 19, 2009 by and among Bio-Imaging Technologies,
Inc., a Delaware corporation (“ Parent ”),
BioClinica Acquisition, Inc., a Delaware corporation and direct
wholly-owned Subsidiary of Parent ( “Merger Sub”
), and etrials Worldwide, Inc., a Delaware corporation (the “
Company ”), and amends that certain Agreement and Plan
of Merger made and entered into as of May 4, 2009 by and among
Parent, Merger Sub and the Company, as amended by that certain
Amendment No. 1 dated as of May 15, 2009 (the “
Agreement ”). All capitalized terms that are used in
this Amendment and not defined herein shall have the respective
meanings ascribed thereto in the Agreement.
WHEREAS, Parent and the Company deem it
advisable to amend the Agreement to provide for the matters
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual
agreements, covenants and other premises set forth herein, the
mutual benefits to be gained by the performance thereof, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
The recitals to
the Agreement are hereby amended and restated in their entirety as
follows:
“WHEREAS the respective Boards of
Directors of Parent, Merger Sub and the Company have approved the
acquisition of the Company by Parent on the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, in furtherance of the acquisition of
the Company by Parent on the terms and subject to the conditions
set forth in this Agreement, Parent proposes to cause Merger Sub to
make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the “Offer”) to
purchase all the outstanding shares of common stock, par value
$0.0001 per share (a “Share”) of the Company (the
“Company Common Stock”), as a result of which each
Share of Company Common Stock validly tendered and not properly
withdrawn would be exchanged for (i) $0.62, net to the seller in
cash, (ii) a fraction of a fully paid and non-assessable share
of common stock, par value $0.00025 per share, of Parent
(“Parent Common Stock”) equal to the Common Exchange
Ratio, as set forth in Section 2.1(a), and (iii) a
fraction of a fully paid and non-assessable share of
Series A-1 preferred stock, par value $0.00025 per share, of
Parent (“Parent Preferred Stock”) equal to the
Preferred Exchange Ratio, as set forth in Section 2.1(a) (such
amount, or any other amount per Share paid pursuant to the Offer
and this Agreement, the “Offer Price”), on the terms
and subject to the conditions set forth in this
Agreement;
WHEREAS, the Board of Directors of the Company
has (i) determined that it is in the best interests of the
Company and the stockholders of the Company (the “Company
Stockholders”, and each such stockholder, a “Company
Stockholder”), and declared it advisable, to enter into this
Agreement with Parent and Merger Sub providing for the merger (the
“Merger”) of Merger Sub with and into the Company in
accordance with the Delaware General Corporation Law (the
“DGCL”), (ii) approved this Agreement in
accordance with the DGCL, upon the terms and subject to the
conditions set forth herein, and (iii) resolved to recommend
the Offer and approval of this Agreement by the stockholders of the
Company;
WHEREAS, the Boards of Directors of Parent and
Merger Sub have each approved, and Parent, as the sole stockholder
of Merger Sub has approved this Agreement and declared it advisable
for Merger Sub to enter into this Agreement providing for the Offer
and Merger in accordance with the DGCL, upon the terms and subject
to the conditions set forth herein; and
WHEREAS, as an inducement to and condition of
Parent’s willingness to enter into this Agreement, certain
Company Stockholders will enter into a stockholders agreement dated
as of the date hereof, or the date of any subsequent amendment
hereto, as necessary (the “Stockholder Agreement”), the
form of which is attached as Annex 1 and the Board of Directors of
the Company has approved the entry of such Company Stockholders
into the Stockholder Agreements. The Stockholder Agreements will be
entered into concurrently with the execution and delivery of this
Agreement, or any amendment hereto, as necessary;”
Section 1.1(d) of the Agreement is hereby
amended and restated as follows:
“The Company hereby grants to Parent and
Merger Sub an irrevocable option (the “ Top-Up Option
”) to purchase at a price per share equal to the Cash Value
of the Offer Price up to that number of newly issued shares of the
Company Common Stock (the “ Top-Up Shares ”)
equal to the lowest number of shares of Company Common Stock that,
when added to the number of shares of Company Common Stock,
directly
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