Exhibit 2.1(c)
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
is dated as of December 30, 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 "Original Merger Agreement"), as amended by
that First Amendment to Agreement and Plan of Merger dated October 10, 2005 (the
"First Amendment" and together with the Original Merger Agreement, 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 8.1(g) of the Original Merger Agreement provided that
GVC may terminate the Merger Agreement if the Closing Date did not occur 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, which
amount was increased in the First Amendment to $10,000 for extensions beyond
September 30, 2005;
WHEREAS, Section 6.10 of the Merger Agreement prohibits the parties
from soliciting other Persons concerning any merger, sale of capital stock, sale
of substantial assets or other business combination; and
WHEREAS, the parties desire to further amend the Merger Agreement in
order to provide that Cougar may further extend the date by which GVC may
terminate the Merger Agreement to January 31, 2006 and to delete Section 6.10
thereof.
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. Extension of Termination Date. Notwithstanding anything to the
contrary contained in Section 8.1(g) of the Merger Agreement, the date after
which GVC may terminate the Merger Agreement under Section 8.1(g) thereof is
hereby extended to January 31, 2006; provided, however, that as consideration
for such extension, Cougar shall pay to GVC the sum of $20,000, of which $10,000
represents an advance by Cougar of the fee payable in the event GVC terminates
the Merger Agreement in accordance with Section 8.1(g) (the "Termination Fee"),
as described in the sentence immediately following paragraph (j) of Section 8.1
of the Merger Agreement; provided further, however, that the Termination Fee
shall be returned to Cougar if the Closing occurs on or prior to January 31,
2006. GVC hereby acknowledges receipt from Cougar of $20,000 representing the
fees payable in connection with such extension, including the Termination Fee.
Notwithstanding anything to the contrary contained herein, Cougar shall have no
right to extend the date after which GVC may terminate the Merger Agreement
under Section 8.1(g) beyond January 31, 2006.
2. Deletion of Non-Solicitation Covenant. Section 6.10 of the Merger
Agreement is hereby deleted in its entirety and the parties understand and agree
that each shall be free to solicit or initiate discussions or negotiations with
other Person(s) concerning any merger, sale of capital stock, sale
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of substantial assets or other business combinations. Notwithstanding the
foregoing, GVC shall not execute a definitive agreement nor complete such a
business combination with another Person until this Agreement has been
terminated in accordance with Section 8.1 of the Merger Agreement. If Cougar
executes a definitive agreement regarding such a business combination with
another Person, Cougar shall promptly notify GVC thereof and the Merger
Agreement will be deemed terminated and GVC shall be entitled to retain the
Termination Fee. Further, nothing in the Merger Agreement or this Amendment
shall be construed to prohibit Cougar from terminating the Merger Agreement at
any time.
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/ Alan H. Auerbach
-------------------------------------------------
Alan H. Auerbach
President and Chief Executive Officer
GVC VENTURE CORP.
By: /s/ Bernard Zimmerman
-------------------------------------------------
Bernard Zimmerman
President
GVC ACQUISITION CORP.
By: /s/ Bernard Zimmerman
-------------------------------------------------
Bernard Zimmerman
President
Signature page to Second Amendment to Agreement and Plan of Merger
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