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 RITA 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
