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 the Acquired
Corporations or any Representative of any of the Acqui
