AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER is entered into
as of the _____ day of __________, 1999 by and among DYNAMIC
ASSOCIATES, INC., a Nevada corporation ("Dynamic"), DYNAMIC
ACQUISITION CORPORATION, a Nevada corporation ("DAC"), ACS2, INC.,
a Delaware corporation ("ACS2"), and ADVANCED CLINICAL SYSTEMS,
INC., a Delaware corporation ("Advanced").
WHEREAS, the parties have entered into that certain Agreement
and Plan of Merger as of March 30, 1999 (the "Merger Agreement")
regarding the contemplated merger of ACS2 with and into DAC (the
"Merger"); and
WHEREAS, the parties desire to amend the Merger Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained in the Merger Agreement and herein, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally
bound hereby, agree as follows:
1. The first sentence of Section 1.3 of the Merger Agreement
is hereby amended by deleting the phrase, "but in no
event more than ten (10) business days" and substituting
in its stead the following: "as soon as reasonably
possible".
2. The last two (2) sentences of Section 2.2(b) of the
Merger Agreement are hereby deleted and the following
substituted in its stead: "Any fee payable to Genesis in
cash or cash equivalents which is approved by Dynamic and
ACS2 will be payable one-half (1/2) by Dynamic and one-
half (1/2) by ACS2, and such fee shall not effect in any
way the Merger Consideration. In the event the Genesis
Warrant is not canceled or Genesis is or becomes entitled
to any Dynamic Common Stock or any security convertible
into Dynamic Common Stock, the Merger Consideration shall
be increased by that number of shares of Dynamic Common
Stock equal to fifty-five percent (55%) of the number of
shares of Dynamic Common Stock to which Genesis is or may
become entitled."
3. Dynamic and the LLC each hereby acknowledge that all
statements made in the Merger Agreement pertaining to or
related to the ownership of Advanced Common Stock prior
to consummation of the Merger are subject to completion
of the recapitalization of Advanced which, pursuant to
the Merger Agreement, is to be completed on or prior to
the Merger. For example, but without limitation, the
obligations imposed pursuant to Section 6.1 of the Merger
Agreement restricting the issuance and delivery of
securities would be subject to the caveat of completing
such recapitalization.
4. Section 6.4(11) of the Merger Agreement is hereby amended
by adding the following phrase at the end of such clause:
". . .; provided, however, that the parties hereto
acknowledge and consent to efforts by holders of the
Dynamic Secured Notes (the"Noteholders") to settle
outstanding disputes with former officers and directors
of Dynamic and its subsidiaries as more fully described
in Section 7.1(7)."
5. The first sentence of Section 6.5(1) of the Merger
Agreement is hereby amended by deleting the phrase "ten
(10)" and inserting in its stead the phrase "fifty (50)".
6. There shall be added to the Merger Agreement a new
Section 6.15(9), which will read as follows: "(9) Dynamic
will deliver to Xxxxxx X. Xxxxxx a Stock Option Agreement
in the form attached hereto as Exhibit 6.15(9)."
Further, there will be attached to the Merger Agreement,
and thereby incorporated therein by reference, said
Exhibit 6.15(9), a copy of which exhibit is attached to
this Amendment.
7. Section 7.1(7) of the Merger Agreement is hereby deleted
in its entirety and the following substituted in its
stead: "Dynamic shall have used its best efforts to
settle any outstanding claims, liabilities, actions or
lawsuits against or by former officers, directors,
stockholders or related parties of Dynamic or its
subsidiaries (collectively, the "Opposing Parties") to
the satisfaction of ACS2. Failure to achieve such a
settlement will not be deemed a breach under this
Agreement. Dynamic will keep ACS2 fully informed as to
the status of such settlement negotiations. Any such
settlement shall include a written agreement, in form
satisfactory to ACS2 in its sole discretion, evidencing
that neither Dynamic, ACS2, Advanced, DAC nor any
director, officer, employee, agent, affiliate or
representative of any such corporation has any
obligations of any kind whatsoever to the Opposing
Parties and each is fully released from any pre-existing
obligations and claims. Subject to the foregoing
sentence, Dynamic will have full authority to settle such
claims as it deems appropriate. ACS2 hereby agrees that
Dynamic may enter into an agreement with the Noteholders
whereby the Noteholders agree to bear the costs of
settlement negotiations and any related litigation,
including but not limited to the costs of litigating and
defending counterclaims. In consideration for the
Noteholders' financial assistance, Dynamic may grant the
Noteholders the right to receive settlement proceeds from
the Opposing Parties, if any, up to an amount agreeable
to Dynamic or ACS2. In no event will Dynamic or any
affiliate pay the Noteholders any consideration, in the
form of cash, securities or otherwise, for the settlement
efforts contemplated hereunder."
8. Section 7.1(11) of the Merger Agreement is hereby deleted
in its entirety and the following substituted in its
stead: "ACS shall have acquired all of the outstanding
shares of Common Stock of Advanced and shall have
delivered fully executed
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cancellation agreements with the holders of outstanding Advanced
Options, Warrants and SARs representing at least ninety percent
(90%) of the shares underlying all outstanding Advanced Options,
Warrants and SARs."
9. Section 7.3(3) of the Merger Agreement is hereby amended
by deleting the number "6,000,000" and substituting in
its stead the number "7,000,000".
Other than as set forth in this Amendment to Merger Agreement,
the Merger Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment
to Merger Agreement as of the date set forth above.
"DYNAMIC"
DYNAMIC ASSOCIATES, INC.
a Nevada corporation
By: ___________________________
Title: ___________________________
"DAC"
DYNAMIC ACQUISITION CORPORATION
a Nevada corporation
By: ___________________________
Title: ___________________________
"XXX0"
XXX0, INC.
a Delaware corporation
By: ___________________________
Title: ___________________________
"ADVANCED"
ADVANCED CLINICAL SYSTEMS, INC.
a Delaware corporation
By: ___________________________
Title: ___________________________
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