FIRST AMENDMENT TO AFFILIATION AGREEMENT
AND AGREEMENT AND PLAN OF MERGER
THIS FIRST 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 the
"Surviving Entity"); Xxxxxx X. Xxxxxxxxxx, D.D.S. ("Xx. Xxxxxxxxxx"), who is
duly licensed to practice orthodontics in the state of Illinois (the "State");
Xxxxxx X. Xxxxxxxxxx, D.D.S., P.C., an Illinois professional corporation (the
"Orthodontic Entity").
RECITALS
A. Omega, Xx. Xxxxxxxxxx and the Orthodontic Entity entered into that
certain Affiliation Agreement And Agreement and Plan Of Merger dated as of the
10th day of March, 1997 (the "Agreement").
B. The Agreement contemplated that Omega Orthodontics of Champaign,
Inc., a to be formed Delaware corporation, would, when formed, join in the
Agreement by subsequently executing this Agreement.
C. The parties thereto desire to amend the Agreement so as to modify
the Consideration set forth in Section 2.1(b), to modify the timeframes set
forth in Sections 2.3 and 10.1(b), and to delete all references to Omega
Orthodontics of Champaign, Inc.
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 Eighteen Thousand, Forty Two Dollars ($218,042.00) in
cash (the "Cash Component");
(ii) Five Hundred Eight Thousand, Seven Hundred Sixty Four Dollars
($508,764.00) to be represented by issuance to Xx. Xxxxxxxxxx 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. Xxxxxxxxxx, fully paid and nonassessable."
2. All references in the Agreement to "Purchase Note" or "Note
Component" are hereby deleted.
3. 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 seven months from the date of this
Agreement."
4. Section 10.1(b) is hereby deleted in its entirety and the following
substituted in its place:
"(b) If the IPO is not successfully completed within seven (7) months
of this Agreement, this Agreement may be terminated by OMEGA or Xx. Xxxxxxxxxx
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."
5. Recital F is hereby deleted in its entirety and the following
substituted in its place:
"F. Subject to the terms and conditions of this Agreement, OMEGA and
Xx. Xxxxxxxxxx have determined that it is in the best interests of each to
effect a merger of the Orthodontic Entity with and into Omega (the "Merger") as
provided in Section 2.1 hereof."
6. All references in the Agreement or this Amendment to "Acquisition"
to "Surviving Entity" shall mean Omega Orthodontics, Inc. All references in the
Agreement to Omega Orthodontics of Champaign, Inc., are hereby deleted, Omega
Orthodontics of Champaign, Inc. no longer being a party to the Agreement.
-2-
7. Sections 1.3 and 7.2 are hereby deleted in their entirety.
8. 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 Amendment to be
executed as of the date set forth above by their duly authorized
representatives.
/s/ Xxxxxx X. Xxxxxxxxxx, D.D.S.
---------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxxx, D.D.S.
Xxxxxx X. Xxxxxxxxxx, D.D.S., P.C.
By: /s/ Xxxxxx X. Xxxxxxxxxx, D.D.S.
------------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxxx, D.D.S.
Its President
--------------------------------------
Duly Authorized
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxx
Its President and Chief Executive Officer
Duly Authorized
