EXHIBIT 2.1(b)
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
is dated as of October 7, 2005, by and among Cougar Biotechnology, Inc., a
Delaware corporation ("Cougar"), GVC Venture Corp., a Delaware corporation
("GVC"), and GVC Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent ("GVC Acquisition").
W I T N E S S E T H
WHEREAS, on June 27, 2005, the parties hereto executed that certain
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which GVC
Acquisition would merge with and into Cougar and all of the outstanding shares
of Cougar capital stock would be exchanged for shares of capital stock of GVC;
WHEREAS, Section 7.3(f) provides that, as a condition to Cougar's
obligation to consummate the transactions contemplated by the Merger Agreement,
GVC shall not have liabilities in excess of the aggregate amount of $225,000;
WHEREAS, Section 8.1(g) provides that GVC may terminate the Merger
Agreement if the Closing Date is not on or before July 31, 2005, provided that
Cougar may extend such date up to a maximum of five (5) months therefrom by
providing GVC with its written notice to extend and making a cash payment to GVC
of $5,000 for each monthly extension; and
WHEREAS, the parties hereto wish to amend Sections 7.3(f) and 8.1(g) in
order to provide that GVC may have liabilities of up to an aggregate of $250,000
and the amount of the payments owed to GVC upon extension of the merger
termination date shall be increased to $10,000 for each month extended beyond
September 30, 2005.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment of Closing Condition. Paragraph (f) of Section 7.3 of the
Merger Agreement shall be amended and restated in its entirety, as follows:
"(f) GVC Liabilities. As of the Effective Time, GVC shall not
have liabilities in excess of the aggregate amount of $250,000."
2. Amendment of Extension Fee. Notwithstanding anything to the contrary
contained in subsection 8.1(g) of the Merger Agreement, the cash payment payable
by Cougar to GVC to extend the date by which GVC may terminate the Merger
Agreement, as described in such subsection, shall be increased to $10,000 for
each month beyond September 30, 2005 that Cougar elects to extend such
termination date. GVC hereby acknowledges receipt of Cougar's notice to extend
such termination date to October 31, 2005 (the "October Notice") and a payment
of $5,000 in partial satisfaction of the $10,000 payment required for the
October Notice; the remaining $5,000 of such payment shall be paid by Cougar
within five (5) business days of the date hereof. Notwithstanding anything to
the contrary contained herein, Cougar shall have no right to extend the date by
which GVC may terminate the Merger Agreement under subsection 8.1(g) thereof
beyond December 31, 2005.
3. Capitalized Terms. Capitalized terms used but not defined in this
Amendment shall have the meanings ascribed to them in the Merger Agreement.
4. Counterpart Execution. This Amendment may be executed by the parties
hereto in any number of counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same instrument.
5. Ratification of Merger Agreement. Except as expressly modified or
amended by the provisions of Sections 1 and 2 hereof, all other terms and
conditions of the Merger Agreement, including all exhibits and schedules
thereto, shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on the date first written above by their respective
officers.
COUGAR BIOTECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President and Chief Executive Officer
GVC VENTURE CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
President
GVC ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
President
Signature page to First Amendment to Agreement and Plan of Merger
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