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EXHIBIT 10.24
FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated effective January 29, 1999, is by and among PENTEGRA DENTAL
GROUP, INC., a Delaware corporation ("Acquiror"), LIBERTY DENTAL ALLIANCE,
INC., a Tennessee corporation (the "Corporation"), LIBERTY ACQUISITION
CORPORATION, a Tennessee corporation and a wholly-owned subsidiary of Acquiror
("Merger Sub"), and Xxxxx X. Xxxxxx, Xx. ("Xxxxxx"), Xxxxxx X. XxXxxxxxx
("XxXxxxxxx"), and Xxxxxxx Xxxxx ("Xxxxx") (Xxxxxx, XxXxxxxxx and Xxxxx being
collectively referred to in this Amendment as the "Liberty Class B
Shareholders").
WITNESSETH:
WHEREAS, Acquiror, the Corporation, Merger Sub and the Liberty Class B
Shareholders entered into that certain Agreement and Plan of Merger (the
"Agreement"), dated as of November 13, 1998 (each capitalized term not
expressly defined herein shall have the meaning given to it in the Agreement);
WHEREAS, Acquiror, the Corporation, Merger Sub and the Liberty Class B
Shareholders desire to amend the Agreement;
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Acquiror, the Corporation, Merger Sub and the Liberty Class B Shareholders
hereby covenant and agree as follows:
ARTICLE I - AMENDMENTS
SECTION 1.1. RECLASSIFICATION OF CLASS B HOLDERS. The opening
paragraph to the Agreement is hereby deleted in its entirety and replaced with
the following opening paragraph to the Agreement:
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of November 13, 1998, is among PENTEGRA DENTAL GROUP, INC., a
Delaware corporation ("Acquiror"), LIBERTY DENTAL ALLIANCE, INC., a
Tennessee corporation (the "Corporation"), LIBERTY ACQUISITION
CORPORATION, a Tennessee corporation and a wholly-owned subsidiary of
Acquiror ("Merger Sub"), Xxxxx X. Xxxxxx, Xx. ("Powers") and Xxxxxxx
Xxxxx ("Xxxxx") (Xxxxxx and Xxxxx being collectively referred to in
this Agreement as the "Class B Holders").
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SECTION 1.2. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. Section 8.1(iv) and its related Exhibit 8.1(iv) are hereby deleted in
their entirety. Section 8.1(v) is hereby renumbered to Section 8.1(iv).
SECTION 1.3. CONDITIONS TO OBLIGATION OF ACQUIROR AND MERGER SUB TO
EFFECT THE MERGER. Sections 8.3(v) and (viii) of the Agreement are hereby
deleted in their entirety and replaced with the following Sections 8.3(v) and
(viii):
(v) Acquiror shall have received evidence reasonably
satisfactory to Acquiror that at the Closing Date the Corporation
shall have no accrued but unpaid liabilities other than as agreed to
by the Acquiror ("Closing Date Liabilities").
(viii) Acquiror shall have received letter agreements from
each of Powers and Xxxxx in the form requested by Acquiror providing
for the restriction of the sale of one-half (1/2) of the shares of
Pentegra Common Stock received by them hereunder for a period of one
year from the date of issuance and one-half of the shares of Pentegra
Common Stock received by them hereunder for a period of two years from
the date of issuance.
SECTION 1.4. TERMINATION BY EITHER ACQUIROR OR THE CORPORATION.
Section 9.2 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 9.2:
9.2 Termination by Either Acquiror or the Corporation. This
Agreement may be terminated and the Merger may be abandoned by action
of the Board of Directors of either Acquiror or the Corporation if the
Merger shall not have been consummated by April 30, 1999, provided
that the terminating party shall not have breached in any material
respect its obligations under this Agreement in any manner that shall
have proximately contributed to the occurrence of the failure referred
to in such clause.
SECTION 1.5. INDEMNIFICATION. Section 10.1 of the Agreement is hereby
deleted in its entirety and replaced with the following Section 10.1:
10.1 Indemnification by Class B Holders. The Class B Holders,
jointly and severally, will indemnify and hold harmless Acquiror, and
its officers, directors, stockholders and subsidiaries (collectively,
the "Indemnified Persons"), and will reimburse the Indemnified
Persons, for any loss, liability, claim, damage, expense (including
costs of investigation and defense and reasonable attorneys' fees and
expenses) or diminution of value, whether or not involving a
third-party claim (collectively, "Damages"), arising from or in
connection with: (i) any breach of any representation or warranty,
covenant or agreement made by the Corporation or the Class B Holders
in this Agreement, or any other certificate or document delivered by
the Corporation or any Class B Holder pursuant to this Agreement; (ii)
any reimbursement made by the Corporation of advances by dental
practices to the Corporation pursuant to the letters of intent listed
on Exhibit 5.4; or (iii) any amount of Closing Date Liabilities of the
Corporation.
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SECTION 1.6. LIMITATION ON AMOUNT. Section 10.4 of the Agreement is
hereby deleted in its entirety and replaced with the following Section 10.4:
10.4 Limitation on Amount. The liability of Xxxxx under this
Article 10 shall be limited to an amount equal to the value of the
Class B Merger Consideration received by him pursuant to the terms of
this Agreement. For purposes of this Section 10.4 only, the shares of
Acquiror Common Stock issued as Class B Merger Consideration shall be
valued at $2.00 per share.
ARTICLE II - TRANSFER OF ASSETS
SECTION 2.1. TRANSFER OF ASSETS. Upon execution of this Amendment, the
Acquiror shall pay to the Corporation or make payments on behalf of the
Corporation in an amount that shall not exceed three hundred thousand dollars
($300,000) (the "$300,000 Payment") in consideration for dental practices
acquisitions consummated in November and December of 1998, which $300,000
Payment shall be used by Corporation only to pay certain accrued liabilities of
the Corporation. Contemporaneously with the execution of this Amendment,
Corporation shall transfer to Merger Sub all of the Corporation's personal
property, including but not limited to, furniture, equipment, inventory, name,
security deposits and other related assets, which transfer shall also occur
upon execution of this Amendment. Additionally, upon execution of this
Amendment, the Acquiror shall pay the Corporation twenty five thousand dollars
($25,000) (the "$25,000 Payment") for payment by the Corporation to Xxxxxx
XxXxxxxxx for redemption of 140,000 shares of the Corporation's Class B common
stock and a release of all claims against the Corporation by Xxxxxx XxXxxxxxx.
The Corporation acknowledges and agrees that there shall be no more than
405,000 outstanding shares of Class B common stock of the Corporation at
Closing and to use the proceeds of the $25,000 Payment to pay Xxxxxx XxXxxxxxx.
ARTICLE III - CLASS B SHARES
SECTION 3.1. CLASS B SHARES. The parties acknowledge that
notwithstanding the contents of Section 5.3 of the Agreement, at the Effective
Date there will be 405,000 Class B Shares issued and outstanding because the
140,000 Class B Shares listed on Exhibit 5.3 as owned by XxXxxxxxx have been,
or will prior to the Effective Time be, retired by the Corporation. The parties
acknowledge and agree that no Class B Merger Consideration shall be issuable
for the 140,000 Class B Shares so retired. Exhibit 5.3 is hereby amended to
provide for 405,000 shares of Class B common stock of the Corporation
outstanding as of the Closing Date.
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ARTICLE IV - MISCELLANEOUS
SECTION 4.1. BINDING EFFECT. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.2. COUNTERPARTS. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all of the parties hereto.
SECTION 4.3. ENTIRE AGREEMENT. This Amendment, together with the
Agreement and any other document executed or delivered in connection therewith,
constitute the entire agreement among the parties with respect to the subject
matter hereof and thereof. No addition to or modification of any provision of
this Amendment or the Agreement shall be binding upon any party hereto unless
made in writing and signed by all parties hereto.
SECTION 4.4. CONFLICTING PROVISIONS. In the event that any provision
of either this Amendment or the Agreement conflict with each other, the
provisions of this Amendment shall control.
SECTION 4.5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to its rules of conflict of laws.
SECTION 4.6. XXXXXXXXX. Upon execution of this Amendment and to be
effective November 13, 1998, XxXxxxxxx will no longer be a party to the
Agreement.
THIS AMENDMENT AND THE AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amendment and
caused the same to be duly delivered on their behalf on the day and year first
herein above written.
THE CORPORATION:
LIBERTY DENTAL ALLIANCE, INC.
By:/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx., President
ACQUIROR:
PENTEGRA DENTAL GROUP, INC.
By:/s/ Xxx X. Xxxx
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Xxx X. Xxxx, Senior Vice President
MERGER SUB:
LIBERTY ACQUISITION CORPORATION
By:/s/ Xxx X. Xxxx
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Xxx X. Xxxx, President
/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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