FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into as of November 20, 1998, by and between
Agri-Nutrition Group limited, a Delaware corporation ("AGNU"), Virbac S.A., a
French corporation ("VBSA"), and Virbac, Inc., a Delaware corporation
("Virbac").
WHEREAS, AGNU, VBSA and Virbac have entered into a certain Agreement
and Plan of Merger, dated as of October 16, 1998 (the "Merger Agreement"),
pursuant to which Virbac will merge with and into AGNU with AGNU as the
surviving corporation.
WHEREAS, after further discussions, AGNU, VBSA and Virbac have
determined to amend the Merger Agreement to reflect additional agreements of the
parties on issues affected by the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used in this Amendment will, unless
otherwise defined in this Amendment, have the meanings assigned to them
in the Merger Agreement.
2. Amendment of Article IV, Section 4.23 of the Merger Agreement. Article
IV, Section 4.23 of the Merger Agreement is hereby amended by deleting
the language thereof and substituting in lieu thereof the following:
"Section 4.23 Issuance of Shares. The Merger Shares and the
shares issued pursuant to the Share Adjustment have been duly
authorized by the AGNU Board of Directors and, when issued as
contemplated by this Agreement, will be validly issued, fully paid and
nonassessable, free of any preemptive rights created by, and not in
violation of, any statute, the certificate of incorporation of AGNU,
the bylaws of AGNU or any agreement to which AGNU is a party or by
which AGNU is bound. The Merger Shares and the shares issued pursuant
to the Share Adjustment will be exempt from registration under the
Securities Act and under applicable Blue Sky Laws. The offering or sale
of any of the Merger Shares and the shares issued pursuant to the Share
Adjustment as contemplated by this Agreement does not give rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any securities of AGNU."
3. Amendment of Article VI of the Merger Agreement. (a) Article VI,
Section 6.14 of the Merger Agreement is hereby amended by deleting the
references therein to "Section 7.3(d)" and substituting in lieu thereof
references to "Section 7.1(e)."
(b) Article VI, Section 6.9(b) of the Merger Agreement is
hereby amended by deleting the references therein to "Section 10.1(h)"
and substituting in lieu thereof references to "Section 10.1(g)."
4. Amendment of Article VII of the Merger Agreement. (a) Article VII,
Section 7.2 of the Merger Agreement is hereby amended by adding a new
paragraph "(g)" to Section 7.2 to read in its entirety as follows:
"(g) Legal Opinions of VBSA's and Virbac's Counsel. On or
prior to the Closing Date, AGNU will have received the opinion of (i)
XxXxxxxx & Xxxxx, LLP, counsel to Virbac, regarding the legal
representations contained in Sections 3.1, 3.2, 3.3 and 3.4 of this
Agreement and (ii) Herve Aoust, legal counsel to VBSA, regarding the
legal representations contained in Section 3.4, provided, however, that
such opinion shall substitute VBSA in lieu of Virbac in such legal
representations."
(b) Article VII, Section 7.3 of the Merger Agreement is hereby
amended by adding a new paragraph "(e)" to Section 7.3 to read in its
entirety as follows:
"(e) Legal Opinion of AGNU's Counsel. On or prior to the
Closing Date, VBSA and Virbac will have received the opinion of Xxxx,
Xxxxx & Xxxxxx, counsel to AGNU, regarding the legal representations
contained in Sections 4.1, 4.2, 4.3, 4.4 and 4.23 of this Agreement."
5. Amendment of Article IX, Section 9.1(a) of the Merger Agreement.
Article IX, Section 9.1(a) of the Merger Agreement is hereby amended by
deleting the phrase "third anniversary" and substituting in lieu
thereof the phrase "second anniversary."
6. Amendment of Article X, Section 10.1(i) of the Merger Agreement.
Article X, Section 10.1(i) of the Merger Agreement is hereby amended by
deleting the language thereof and substituting in lieu thereof a new
Section 10.1(i) to read in its entirety as follows:
"(i) by (A) either Virbac or AGNU on or before November 20,
1998 if such party objects to any of the matters reviewed pursuant to
Section 6.1, provided, however, that any objection rendered by such
party is based on reasonable and prudent business judgment and not made
in an arbitrary and capricious manner, or (B) Virbac if it fails to
receive an opinion of AGNU's environmental counsel in the form attached
as Exhibit J hereto or assessment of an environmental engineering firm
acceptable to Virbac, as the case may be; provided further, that if
Virbac is unable to complete its investigation as a result of AGNU's
failure to afford reasonable access to the properties and executive
personnel of AGNU or promptly provide all material information
requested by Virbac pursuant to Section 6.1, then Virbac may extend the
termination date under this Section 10.1(i) to November 25, 1998; or".
7. Amendment of Exhibit C. Exhibit C of the Merger Agreement is hereby
amended by deleting the phrase "and, provided further, that Parent may"
in Section 6 thereof.
8. Amendment of Exhibit I. Exhibit I of the Merger Agreement is hereby
amended by deleting the language of Exhibit I in its entirety and
substituting in lieu thereof Exhibit I attached hereto.
9. Amendment of Appendix B. Items 4.11 and 4.18 of Appendix B to the
Merger Agreement are hereby amended by deleting the language of such
items in their entirety and substituting in lieu thereof Items 4.11 and
4.18 attached hereto.
10. Reaffirmation of Merger Agreement. To the extent that any provision
hereof conflicts with any provision of the Merger Agreement, the
provisions hereof will control. Except as expressly modified hereby,
the Merger Agreement remains in full force and effect in accordance
with its original terms.
11. Miscellaneous.
(a) Counterparts. This Amendment may be executed and delivered in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered means be deemed to be an
original but all of which taken together constitute one and the same agreement.
(b) Governing Law. This Amendment is governed by, and construed in
accordance with, the laws of the State of Delaware without giving effect to
applicable principles of conflicts of law.
(c) Entire Agreement. This Amendment, the Merger Agreement and the
Confidentiality Agreement (together with the Exhibits, the Schedules and the
other documents delivered pursuant to the Amendment and the Merger Agreement)
constitute the entire agreement of the parties and supersedes all prior
agreements and undertakings, both written and oral, between the parties, or any
of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Agreement and Plan of Merger to be executed and delivered as of the date
first written above.
AGRI-NUTRITION GROUP LIMITED
Xxxxx X. Xxxxx
President and Chief Executive Officer
VIRBAC S.A.
By:
Name:
Title:
VIRBAC, INC.
Xxxxx X. Xxxxx
Chief Executive Officer
