Exhibit 2.1
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
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This Amendment No. 2 to Agreement and Plan of Merger (the "Amendment
No. 2") is made as of the 15th day of July, 2005, by and among VALLEY FORGE
SCIENTIFIC CORP., a Pennsylvania corporation ("Valley Forge"), SYNERGETICS
ACQUISITION CORPORATION, a Delaware corporation ("MergerSub"), and SYNERGETICS,
INC., a Missouri corporation ("Synergetics").
W I T N E S S E T H:
A. WHEREAS, Valley Forge, MergerSub and Synergetics are parties
to that certain Agreement and Plan of Merger dated as of May 2, 2005 (the
"Agreement");
B. WHEREAS, Valley Forge, MergerSub and Synergetics are parties
to that certain Amendment No. 1 to Agreement and Plan of Merger dated as of June
2, 2005 (the "Amendment No. 1");
C. WHEREAS, Valley Forge, MergerSub and Synergetics desire to
amend the Agreement, to add as an additional condition precedent to each party's
obligation to effect the Merger, the approval by the Valley Forge stockholders
of a proposal granting the Valley Forge Board of Directors the discretion to
effect a reverse stock split at a ratio within a range so as reasonably to
ensure that Valley Forge satisfies the minimum bid requirements for initial
listing on the Nasdaq SmallCap Market on the trading day following the
consummation of the Merger; and
D. WHEREAS Valley Forge, MergerSub and Synergetics desire to
amend the Agreement, upon and subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises, the covenants,
promises and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and legal sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have those meanings ascribed to them in the Agreement.
2. Amendment to the Agreement.
(a) The Agreement is hereby amended by modifying
Section 7, "Additional Agreements", as follows:
Section 7(i), "Nasdaq Listing" is deleted in its
entirety and replaced with the following:
"(i) Nasdaq Listing. Valley Forge shall
file such notifications or applications and take such other
actions as may be required by the rules of The Nasdaq Stock
Market, Inc. and any national securities exchange upon which
the Valley Forge Shares are listed with respect to the Valley
Forge Shares issuable pursuant to the transactions
contemplated by this Agreement and in connection therewith the
parties agree to cooperate in good faith to fix the date and
ratio of a reverse stock split, as they may reasonably
determine to be necessary, and shall use their reasonable best
efforts, including effecting such reverse stock split, to
ensure that Valley Forge satisfies the minimum bid
requirements for initial listing on the Nasdaq SmallCap Market
on the trading day following the consummation of the Merger."
(b) The Agreement is hereby amended by modifying Section
8, "Conditions Precedent", as follows:
Section 8(a), "Conditions Precedent to Each Party's
Obligation to Effect the Merger" is amended by adding the
following:
"(v) Stockholder Approval of Board
Discretion to Effect Reverse Stock Split. Valley Forge shall
have obtained the approval of the Valley Forge stockholders of
the proposal set forth in the Proxy Statement/Prospectus
granting the Valley Forge Board of Directors the discretion to
effect a reverse stock split within a ratio range set forth in
such proposal."
3. Entire Agreement. This Amendment No. 2 and the Agreement, as
amended by Amendment No. 1, embody the entire agreement between the parties
respecting the subject matter hereof and supersede all prior agreements,
proposals, communications and understandings relating to such subject matter.
The terms of the Amendment No. 2 shall be considered a part of the Agreement as
if fully set forth therein.
4. Miscellaneous. This Amendment No. 2 shall be binding upon
Valley Forge, MergerSub and their successors and Synergetics and its successors
and assigns. The Section headings are furnished for the convenience of the
parties and are not to be considered in the construction or interpretation of
this Amendment No. 2 or the Agreement, as amended by Amendment No. 1. This
Amendment No. 2 may be executed in any number of counterparts, each of which
shall be deemed an original, but which together shall constitute one and the
same instrument.
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5. No Other Amendments. In case of a conflict between the terms
of this Amendment No. 2 and the Agreement, as amended by Amendment No. 1, the
terms of this Amendment No. 2 control. Except as expressly set forth in this
Amendment No. 2, the terms of the Agreement, as amended by Amendment No. 1,
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed, or caused their
duly authorized officers to execute, this Amendment No. 2 on the date first
above written.
VALLEY FORGE SCIENTIFIC CORP.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President and CEO
SYNERGETICS ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President and CEO
SYNERGETICS, INC.
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
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