FIRST AMENDMENT TO THE
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
MEDICAL DYNAMICS, INC., A COLORADO CORPORATION,
INFOCURE CORPORATION, A DELAWARE CORPORATION
AND
CADI ACQUISITION CORPORATION, A COLORADO CORPORATION
DATED: OCTOBER 30, 2000
FIRST AMENDMENT TO THE
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
-----------------------------------------------
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION (this "Agreement"), is made and entered into as of
this 30th day of October, 2000, by and among InfoCure Corporation, a Delaware
corporation ("Parent"), CADI Acquisition Corporation, a Colorado corporation and
a wholly-owned subsidiary of Parent ("Merger Sub") and Medical Dynamics, Inc., a
Colorado corporation ("Company").
RECITALS:
A. The Parent, the Merger Sub and the Company entered into an amended and
restated agreement and plan of merger and reorganization as of October 10, 2000
(the "Merger Agreement").
B. The parties desire to amend the Merger Agreement as described herein.
C. Unless otherwise defined herein, capitalized terms used in this first
amendment to the Merger Agreement have the same definitions given them in the
Merger Agreement.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. The Merger Agreement be and hereby is amended to delete Section 2.10
in its entirety and to insert in lieu thereof the following as Section
2.10:
2.10 Tax and Accounting Consequences. It is intended by the parties hereto
that the Merger shall constitute a reorganization within the meaning of Section
368 of the Code unless, pursuant to Section 8.1.H. hereof, Parent shall agree to
pay cash in the amount of $.2372 per share of Company Common Stock in lieu of
each share of Company Common Stock being automatically converted into the right
to receive Parent Common Stock as set forth in Section 2.5.A. The parties hereto
adopt this Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Income Tax Regulations.
2. The Merger Agreement be and hereby is amended to delete Section 6.1.B.
in its entirety and to insert in lieu thereof the following as Section
6.1.B.:
B. Tax-Deferred Treatment. Each of the parties shall use its
reasonable efforts to cause the Merger to constitute a tax-deferred
"reorganization" under Section 368(a) of the Code unless and until, pursuant to
Section 8.1.H. hereof, Parent shall agree to pay cash in the amount of $.2372
per share of Company Common Stock in lieu of each share of Company Common Stock
being automatically converted into the right to receive Parent Common Stock as
set forth in Section 2.5.A.
3. The Merger Agreement be and hereby is amended to insert the following
new Section 6.5:
6.5 Company Plan. Company shall terminate the Computer Age Dentist 401(k)
Plan (the "401(k) Plan") effective immediately prior to the Closing, shall cease
all further contributions to the 401(k) Plan for pay periods beginning on and
after the Closing Date and, to the extent the 401(k) Plan provides for loans to
participants, shall cease making any such additional loans effective immediately
prior to the Closing Date. Company agrees to cooperate with Parent after the
Closing Date to amend the 401(k) Plan in order to bring the 401(k) Plan into
compliance with all applicable laws and regulations, to vest all participants in
their accounts, to distribute all such accounts to the extent permitted under
applicable laws and regulations and to bear all expenses that may apply in
connection with obtaining a favorable determination letter from the Internal
Revenue Service with respect to the tax-qualified status of the 401(k) Plan at
its termination.
4. The Merger Agreement be and hereby is amended to delete Section 7.1.H.
in its entirety and to insert in lieu thereof the following as Section
7.1.H.:
H. Parent and Company shall each have received written opinions from
their respective tax counsel in the form and substance reasonably satisfactory
to them, to the effect that the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Code and such opinions shall not have been
withdrawn; provided, however, that if the counsel to either Parent or Company
does not render such opinion, this condition shall nonetheless be deemed to be
satisfied with respect to such party if counsel to the other party renders such
opinion to such party; provided, further, that this Section 7.1.H. shall not be
a condition to the obligations of the parties to consummate the Merger if,
pursuant to Section 8.1.H. hereof, Parent shall agree to pay cash in the amount
of $.2372 per share of Company Common Stock in lieu of each share of Company
Common Stock being automatically converted into the right to receive Parent
Common Stock as set forth in Section 2.5.A. The parties to this Agreement agree
to make such reasonable representations as requested by such counsel for the
purpose of rendering such opinions.
5. The Merger Agreement be and hereby is amended to delete Section 8.1.H.
in its entirety and to insert in lieu thereof the following as
Sections 8.1.H. and 8.1.I.:
H. By Company, if the Share Value, as defined below, is less than
Three and 45/100 Dollars ($3.45) unless Parent shall agree (i) to adjust the
Common Exchange Ratio to be equal to the product of .06873 multiplied by a
fraction, the numerator of which is Three and 45/100 Dollars ($3.45) and the
denominator of which is the Share Value or (ii) in lieu of each share of Company
Common Stock being automatically converted into the right to receive Parent
Common Stock as set forth in Section 2.5.A. hereof, to pay cash in the amount of
$.2372 per share of Company Common Stock. For purposes hereof, the term "Share
Value" shall mean an amount equal to the average closing price of a share of
2
Parent Common Stock as reported on NASDAQ for the twenty (20) consecutive
trading days ending on (and including) the fourth (4th) trading day immediately
prior to the date on which the Company receives the Shareholder Approval. On the
fourth (4th) trading day immediately prior to the date for which the Shareholder
meeting ("Meeting") is scheduled (or any date on which the Meeting is scheduled
to reconvene following an adjournment or to be held following a rescheduling of
the Meeting), if the Share Value is less than Three and 45/100 Dollars ($3.45)
and Company elects to terminate the Agreement pursuant to this Section 8.1.H.,
Company shall deliver a written notice of termination to Parent before 5:00
p.m., eastern time, on such date. If Parent elects to change the consideration
as set forth in this Section 8.1.H., it shall deliver a written notice to
Company by 8:00 p.m., eastern time, on such date indicating whether it will (i)
adjust the Common Stock Exchange Ratio or (ii) pay cash in the amount of $.2372
per share of Company Common Stock in lieu of issuing Parent Common Stock. If,
subsequent to the giving of any notice of termination by Company or notice by
Parent that it has elected to change the consideration, the Meeting is adjourned
without the Company receiving the Shareholder Approval or if the Meeting is
otherwise delayed or rescheduled without being held, such notices shall have no
effect and the provisions of this Section 8.1.H. relating to the timing of such
notices shall apply on the fourth (4th) trading day prior to the date on which
the Meeting is scheduled to be reconvened or the date for which the Meeting is
rescheduled. The preceding sentence shall apply in the case of each adjournment
or rescheduling of the Meeting until the Shareholder Approval is received by
Company. Termination of the Agreement under this section does not entitle either
party to any termination fee, reimbursement of expenses, or payment of a penalty
of any kind;
I. By Parent, if the Share Value is greater than Six and 41/100
Dollars ($6.41). Termination of the Agreement under this section does not
entitle Company to any termination fee, reimbursement of expenses, or payment of
a penalty of any kind.
6. Counterparts. This First Amendment to the Merger Agreement may be
executed in one or more counterparts, each of which shall be deemed to
be an original copy of this Agreement, and all of which, when taken
together, shall be deemed to constitute, but one and the same
agreement.
7. No Other Modifications. The Merger Agreement remains in full force and
effect except as specifically modified hereby.
8. Approvals and Recommendations. The Boards of Directors of Company and
Parent have approved and declared advisable this Amendment, and have
approved the Merger and the other transactions contemplated by this
Agreement and have determined to recommend that the shareholders of
Company adopt and approve (i) the Merger Agreement; (ii) this
Amendment to the Merger Agreement and (iii) the Merger transaction.
3
IN WITNESS WHEREOF, the Company, Merger Sub and Parent, by their duly
authorized officers, have each caused this Agreement to be executed as of the
date first written above.
PARENT:
InfoCure Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Perlaman
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Title: Chairman
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MERGER SUB:
CADI Acquisition Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Perlaman
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Title: Chief Financial Officer and Treasurer
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COMPANY:
Medical Dynamics, Inc.
By: /s/ Van X. Xxxxxxx
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Name: Van X. Xxxxxxx
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Title: President
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