SECOND AMENDMENT TO AFFILIATION AGREEMENT
AND AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AFFILIATION AGREEMENT AND AGREEMENT AND PLAN OF MERGER
(this "Amendment") is entered into as of the 25th day of September, 1997, by and
among Omega Orthodontics, Inc., a Delaware corporation ("OMEGA " or "Surviving
Entity"); Xxxxx X. Xxxxxxxxxxx, D.D.S. ("Xx. Xxxxxxxxxxx"), who is duly licensed
to practice orthodontics in the state of California (the "State"); and Xxxxx X.
Xxxxxxxxxxx, D.D.S., P.C., a California professional corporation (the
"Orthodontic Entity").
RECITALS
A. Omega, Xx. Xxxxxxxxxxx and the Orthodontic Entity entered into that
certain Affiliation Agreement And Agreement and Plan Of Merger dated as of the
31st day of March 1997, as amended by that First Amendment to Affiliation
Agreement and Agreement and Plan of Merger dated as of June 1, 1997 (as amended,
the "Agreement").
B. The parties thereto desire to amend the Agreement so as to amend
Section 2.3. and Section 10.1(b).
Capitalized terms used but not defined in this Amendment shall have the
meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged to the full
satisfaction of the parties hereto, the parties hereto agree as follows:
1. The first sentence of Section 2.3 is hereby deleted in its entirety
and the following substituted in its place:
"2.3 Time and Place of Closing. The closing of the transactions
contemplated hereby (herein called the "Closing") shall be held immediately
before the Effective Time at the offices of Xxxxxxxx & Xxxx, Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 on the date of the closing of OMEGA's initial public
offering of its securities (the "IPO Closing") pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") ("IPO"), or at such other place, date or time as may be fixed
by mutual agreement of the parties; provided, however, that in no event shall
the Closing date be extended beyond October 10, 1997."
2. Section 10.1(b) is hereby deleted in its entirety and the following
substituted in its place:
"10.1(b) If the IPO is not successfully completed on or before October
10, 1997, this Agreement may be terminated by OMEGA or Xx. Xxxxxxxxxxx upon
written notice to the other party, and if so terminated, all obligations of the
parties hereunder shall terminate without any further liability of either party
to the other, except that each party shall remain obligated in respect of the
provisions of Section 10.3 and 10.7 which shall survive any such termination."
3. Except as expressly modified, amended and supplemented in this Amendment, the
terms of this Agreement remain unchanged and in full force and effect on the
date hereof. This Amendment may be executed, accepted and delivered in any
number of counterparts, but all counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
executed as of the date set forth above by their duly authorized
representatives.
/s/ Xxxxx X. Xxxxxxxxxxx, D.D.S.
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Xxxxx X. Xxxxxxxxxxx, D.D.S.
Xxxxx X. Xxxxxxxxxxx D.D.S., P.C.
By: /s/ Xxxxx X. Xxxxxxxxxxx D.D.S.
--------------------------------
Xxxxx X. Xxxxxxxxxxx D.D.S.
Its President
--------------------------------
Duly Authorized
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxxx
Its President and Chief Executive Officer
Duly Authorized
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