Exhibit 1
Second AMENDMENT TO AGREEMENT and plan
OF MERGER BY AND AMONG MEDICAL DYNAMICS, INC.,
INFOCURE CORPORATION AND
CADI ACQUISITION CORPORATION
THIS SECOND AMENDMENT TO THE PLAN AND AGREEMENT OF MERGER 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")
dated December 21, 1999 (the "Merger Agreement") is entered into this 22nd day
of May, 2000. Capitalized terms used herein, but not defined shall have the
meanings ascribed to such terms in the Merger Agreement.
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to the terms of the Merger Agreement, as amended by that
certain First Amendment to the Plan and Agreement of Merger dated April 10,
2000, Company shall merge with and into Merger Sub; and
WHEREAS, the parties desire to further amend the Merger Agreement to
provide that any holder of one thousand (1,000) or fewer shares of Company
Common Stock shall receive cash instead of Parent Common Stock.
NOW, THEREFORE, Company, Parent and CADI hereby agree to amend the Merger
Agreement as follows:
1. Cash Out.
---------
A. The following Section 2.5.G. shall be inserted into the Merger
Agreement:
"2.5.G. Notwithstanding Sections 2.5.A. and 2.5.F. above, any
holder of one thousand (1,000) or fewer shares of Company Common
Stock ("Odd Lot Shareholder"), shall instead receive cash in an
amount equal to the value of that number of shares of Parent
Common Stock that would otherwise have been issued multiplied by
the average closing price of Parent Common Stock for the twenty
(20) trading days immediately preceding the last full trading day
prior to the Effective Time."
B. Section 2.6.A. of the Merger Agreement is hereby amended to
delete Section 2.6.A. in its entirety and to insert in lieu
thereof the following Section 2.6.A.:
"2.6.A. Exchange Agent; Parent to Provide Common Stock. Promptly
after the Effective Time, Parent shall supply, or shall cause to
be supplied, to or for the account of a bank or trust company
designated by Parent (the "Exchange Agent"), for exchange in
accordance with this Section 2.6., through the Exchange Agent,
certificates evidencing the Parent Common Stock issuable pursuant
to Section 2.5. in exchange for outstanding shares of Company
Common Stock, cash payable for the shares of the Odd Lot
Shareholders pursuant to Section 2.5.G., and cash in an amount
sufficient for payment in lieu of fractional shares pursuant to
Section 2.5.F. and any dividends or other distributions to which
holders of shares of Company Common Stock may be entitled
pursuant to Section 2.6.C."
C. Section 2.6.B. of the Merger Agreement is hereby amended to
delete Section 2.6.B. in its entirety and to insert in lieu
thereof the following Section 2.6.B.:
"2.6.B. Exchange Procedures. As soon as reasonably practicable
after the Effective Time, Parent shall cause the Exchange Agent
to mail to each holder of record (as of the Effective Time) of a
certificate or certificates which immediately prior to the
Effective Time evidenced outstanding shares of Company Common
Stock (the "Certificates") whose shares were converted into
shares of Parent Common Stock pursuant to Section 2.5., cash for
the shares of the Odd Lot Shareholders pursuant to Section
2.5.G., and cash in lieu of any fractional shares pursuant to
Section 2.5.F. and any dividends or other distributions to which
holders of shares of Company Common Stock may be entitled
pursuant to Section 2.6.C. (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss
and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as Parent may
reasonably specify) and (ii) instructions for use in effecting
the surrender of the Certificates in exchange for certificates
evidencing shares of Parent Common Stock, cash for the shares of
the Odd Lot Shareholders pursuant to Section 2.5.G. and cash in
lieu of any fractional shares pursuant to Section 2.5.F. and any
dividends or other distributions pursuant to Section 2.6.C. Upon
surrender of a Certificate for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by Parent,
together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and
such other customary documents as may be required pursuant to
such instructions, the holder of such Certificate shall be
entitled to receive in exchange thereof (i) certificates
evidencing that number of whole shares of Parent Common Stock
into which such holder's shares of Company Common Stock were
converted at the Effective Time or cash as provided for Odd Lot
shareholders under Section 2.5.G.; (ii) any dividends or other
distributions to which such holder is entitled pursuant to
Section 2.6.C. and (iii) cash in lieu of fractional shares to
which such holder is in entitled pursuant to Section 2.5.F., and
the Certificate so surrendered shall forthwith be canceled. In
the event of a transfer of ownership of shares of Company Common
Stock which is not registered in the transfer records of the
Company as of the Effective Time, Parent Common Stock and cash
may be issued and paid in accordance with this Section 2. to a
transferee if the Certificate evidencing such shares is presented
to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer pursuant to this Section 2.6.
and by evidence that any applicable stock transfer taxes have
been paid. Until so surrendered, each outstanding Certificate
that, prior to the Effective Time, represented shares of Company
Common Stock will be deemed from and after the Effective Time,
for all corporate purposes, other than the payment of dividends,
to evidence only the ownership of the number of full shares of
Parent Common Stock into which such shares of Company Common
Stock shall have been so converted and the right to receive an
amount in cash in lieu of the issuance of any fractional shares
in accordance with Section 2.5.F. and any dividends or
distributions payable pursuant to Section 2.6.C."
2
D. Section 2.8. of the Merger Agreement is hereby amended to delete
Section 2.8. in its entirety and to insert in lieu thereof the
following Section 2.8.:
"2.8. All shares of Parent Common Stock issued upon the surrender
for exchange of shares of Company Common Stock in accordance with
the terms hereof (including any cash paid in respect thereof
pursuant to Sections 2.5.F., 2.5.G. and 2.6.C.) shall be deemed
to have been issued in full satisfaction of all rights pertaining
to such shares of Company Common Stock, and there shall be no
further registration of transfers on the records of the Surviving
Corporation of shares of Company Common Stock which were
outstanding immediately prior to the Effective Time. If, after
the Effective Time, certificates are presented to the Surviving
Corporation for any reason, they shall be cancelled and exchanged
as provided in this Section 2."
Except as modified herein, the terms and conditions of the Merger Agreement
shall remain in full force and effect.
The Boards of Directors of Company and Parent have approved and declared
advisable this Second Amendment, and have approved the Merger and the other
transactions contemplated thereby and have determined to recommend that the
shareholders of Company adopt and approve (i) the Merger Agreement; (ii) the
First Amendment to the Merger Agreement; (iii) the Second Amendment to the
Merger Agreement and (iv) the Merger transaction.
This Second Amendment may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
3
IN WITNESS WHEREOF, this Second Amendment has been executed as of the date
first written above.
PARENT:
InfoCure Corporation
MERGER SUB:
CADI Acquisition Corporation
COMPANY:
Medical Dynamics, Inc.
