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 16TH day of September, 1997, by and
among Omega Orthodontics, Inc., a Delaware corporation ("OMEGA " or "Surviving
Entity"); Xxxxxxxx X. Xxxxxx, Xx., D.D.S. ("Xx. Xxxxxx"), who is duly licensed
to practice orthodontics in the state of Colorado (the "State"); and Xxxxxxxx X.
Xxxxxx, Xx., D.D.S., P.C., a Colorado professional corporation (the "Orthodontic
Entity").
RECITALS
A. Omega, Xx. Xxxxxx 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 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 modify
the Consideration set forth in Section 2.1(b).
Capitalized Terms used by 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. Section 2.1(b) is hereby deleted in its entirety and the following
substituted in its place:
(b) At the Effective Time, the Interests of Orthodontic Entity
outstanding immediately prior to the Effective Time shall, on such date, by
virtue of the Merger and upon surrender to OMEGA of the certificates therefor,
duly endorsed and transferable, free and clear of any liens, encumbrances,
restrictions or claims of any kind (other than those liens, encumbrances,
restrictions and claims expressly disclosed to OMEGA and affirmatively accepted
by OMEGA prior to the Effective Time), without any further action on the part of
any holder thereof, be converted into the right to receive an aggregate
consideration (the "Consideration") of:
(i) Two Hundred Twenty Six Thousand Seven Hundred Sixteen Dollars
($226,716) in cash payable to Xx. Xxxxxx (the "Cash Component"); and
(ii) Four Hundred Eighty-Eight Thousand Nine Hundred Fifty Dollars
($488,950.00) to be represented by issuance to Xx. Xxxxxx of shares of OMEGA
common stock ("OMEGA Stock") based on a value per share equal to 100% of the IPO
Price (as defined below in Section 2.3) (the "Stock Component"), which shall
thereupon be issued to Xx. Xxxxxx, fully paid and nonassessable.
2. All references in the Agreement to "Purchase Note" or "Note
Component" are hereby deleted.
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.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
/s/ Xxxxxxxx X. Xxxxxx, Xx., D.D.S.
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Xxxxxxxx X. Xxxxxx, Xx., D.D.S.
Xxxxxxxx X. Xxxxxx, Xx. D.D.S., P.C.
By: /s/ Xxxxxxxx X. Xxxxxx, Xx. D.D.S.
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Xxxxxxxx X. Xxxxxx, Xx. D.D.S.
Its President
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Duly Authorized
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Its President and Chief Executive Officer
Duly Authorized
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