EXECUTION COPY
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AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
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THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this "Amendment No. 1")
is made as of October 30, 1995, by and among Phoenix Xxxxxxx p.l.c., an Irish
public limited company ("Purchaser"), The X.X. Xxx Company, a Delaware
corporation ("Seller"), Xxxxxxxx Group, Inc., a Connecticut corporation ("AGI")
and Ney Dental International, Inc., a Delaware corporation ("NDI").
W I T N E S S E T H
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WHEREAS, Purchaser, Seller, AGI and NDI are parties to that certain Asset
Purchase Agreement dated as of August 10, 1995 (the "Purchase Agreement"); and
WHEREAS, Purchaser, Seller, AGI and NDI desire to amend the Purchase
Agreement in accordance with Section 15.2 thereof.
NOW THEREFORE, for good and valuable consideration, received by Purchaser,
Seller, AGI and NDI to each of their full satisfaction, each of Purchaser,
Seller, AGI and NDI hereby covenants and agrees as follows:
1. Definitions. Capitalized terms used in this Amendment No. 1 without
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definition shall have the respective meanings assigned to them in the Purchase
Agreement.
2. Exhibit C. EXHIBIT C to the Purchase Agreement is hereby deleted in its
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entirety and EXHIBIT C hereto is substituted therefor.
3. Section 1.1. Section 1.1 of the Purchase Agreement is amended by adding
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the following Sections 1.1(dv) and 1.1(dw):
(dv) "AMENDMENT NO. 1" shall mean that certain Amendment No. 1 to Asset
Purchase Agreement dated as of October 30, 1995, by and among the
Purchaser, the Seller, AGI and NDI.
(dw) "SHARE DEPOSIT" shall have the meaning ascribed to such term in
Section 2.7(a) hereof.
4. Section 2.7(a). The introductory paragraph of Section 2.7(a) of the
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Purchase Agreement is hereby deleted in its entirety and the following is
substituted therefor:
2.7 $100,000 DEPOSIT; DEPOSIT OF SHARES
INDEMNIFICATION ESCROW AGREEMENT.
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(a) Concurrently with the execution and delivery of this Agreement, the
Purchaser shall deposit into the interest-bearing account established by
AGI (the "Deposit Account") $100,000 in cash (the "Deposit"), by (at the
Purchaser's option) certified or cashier's check or wire transfer of
immediately available funds. Concurrently with the execution and delivery
of Amendment No. 1, the Purchaser and the Seller shall execute and deliver
a registration rights agreement in the form of EXHIBIT A to Amendment No.
1. Within six (6) business days of the execution of Amendment No. 1, the
Purchaser shall deposit with the Seller certificates, registered in the
name of the Seller, representing 75,000 Phoenix Ordinary Shares (the "Share
Deposit"), and the Purchaser shall deliver to the Seller an opinion of the
Purchaser's counsel with respect to the Share Deposit in form and substance
satisfactory to the Seller and the Seller's counsel. Therefore,
5. Section 2.7(a)(i). Section 2.7(a)(i) of the Purchase Agreement is hereby
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deleted in its entirety and the following is substituted therefor:
(i) In the event that the Closing shall occur, (A) the Deposit, together
with all interest earned thereon in the Deposit Account (collectively, the
"Deposit Payment"), shall be credited to the Seller at the Closing in
partial satisfaction of the portion of the Purchase Price described in
Section 2.6(a)(i) hereof, and (B) either (1) the Share Deposit shall be
credited to the Seller at the Closing in partial satisfaction of the
portion of the Purchase Price described in Section 2.6(a)(ii)(A) hereof or
(2) if the Purchaser elects to make the cash payment described in Section
2.6(a)(ii)(B), the Seller shall Transfer the Share Deposit to the Purchaser
upon the Seller's receipt of such cash payment.
6. Sections 2.7(a)(iii) and 2.7(a)(iv). Sections 2.7(a)(iii) and 2.7(a)(iv)
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of the Purchase Agreement are hereby deleted in their entirety and the following
is substituted therefor:
(iii) If the Seller shall provide a notice in accordance with Section
2.7(a)(ii) above, the Seller after the expiration of the Contest Period (as
defined below) shall have the right to retain the Deposit Payment and the
Share
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Deposit if the Purchaser does not contest the Seller's claim as liquidated
damages and the sole remedy of AGI, the Seller, NDI and Neyco for the
failure of the Purchaser to consummate the transactions contemplated
hereby, and none of the Purchaser, its Affiliates or any of their
respective Representatives shall have any further liability whatsoever to
AGI, the Seller, NDI, Neyco or their respective Affiliates, or the
Representatives of any of them; provided, however, that if within 20 days
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after the Purchaser's receipt of such Seller's notice (the "Contest
Period") the Purchaser shall contest the Seller's claim that termination of
this Agreement was for a reason other than a Good Reason, the Purchaser and
the Seller shall promptly undertake in good faith to resolve such dispute.
If the Purchaser and the Seller shall resolve such dispute within ten days
after the end of the Contest Period, the Seller shall retain the Deposit
Payment and the Share Deposit or promptly pay the Deposit Payment to the
Purchaser and transfer the Share Deposit to the Purchaser, as the case may
be, in accordance with such resolution. If, however, the Purchaser and the
Seller shall fail to resolve such dispute within such ten-day period, they
shall promptly retain the Arbitrator to determine whether termination was
for a Good Reason (in which case the Deposit Payment and the Share Deposit
shall promptly be paid or transferred, as applicable, to the Purchaser) or
for a reason other than a Good Reason (in which case the Seller shall
retain the Deposit Payment and the Share Deposit). The Seller and AGI, on
the one hand, and the Purchaser, on the other hand, shall each bear and pay
one-half of such Arbitrator's fees and expenses, unless such Arbitrator
shall otherwise allocate responsibility therefor.
(iv) If the Seller shall not provide a notice within the ten-day notice
period referred to in Section 2.7(a)(ii) above, the Deposit Payment shall
be paid, and the Share Deposit shall be transferred, to the Purchaser
promptly thereafter.
7. Section 4.8(ii). The last phrase of the third sentence of Section 4.8 of
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the Purchase Agreement is hereby amended by inserting the words "and not in
accordance with GAAP" between the word "hereto" and "."
8. Section 5.4. Section 5.4 of the Purchase Agreement is hereby deleted in
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its entirety and the following is substituted therefor:
The Purchaser's Shares (including the Share Deposit) to be issued to the
Seller represent authorized but unissued Ordinary Shares of the Purchaser.
Upon the delivery of a certificate representing the Purchaser's Shares to
the
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Seller at the Closing pursuant to this Agreement, or a certificate
representing the Share Deposit to the Seller upon the execution of
Amendment No. 1, as applicable, the Purchaser's Shares (including the Share
Deposit) shall have been Transferred to the Seller, free and clear of any
Liens of any kind.
9. Section 11.3. Section 11.3(c) of the Purchase Agreement is hereby deleted
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in its entirety and the following is substituted therefor:
(c) any act or omission of the Purchaser, any of its Affiliates or any of
the Representatives of any of them after the Closing; and/or
(d) anything else contained in this Agreement to the contrary
notwithstanding, any issuance by the Purchaser or Acquisition Sub of any
securities at any time, including without limitation the placement pursuant
to Regulation S of certain securities of the Purchaser commenced during
July of 1995, and the placement pursuant to Rule 144A of certain securities
of the Purchaser which commenced during October and/or November of 1995;
and/or
(e) any aspect of the relationship between the Purchaser, or any of the
Purchaser's directors, officers, employees or Affiliates, and any of the
Purchaser's or such other Person's potential or actual Representatives,
financial advisors or lenders, including without limitation AP&R and CANCAP
Investments Limited, whether before or after the Closing, including without
limitation with respect to any action or inaction by the Purchaser; and/or
(f) any recasting or modification of the Financial Statements for any
purpose in such a manner that such modified statement(s) is not prepared in
accordance with EXHIBIT B, including without limitation to make any
Financial Statement comply with GAAP, provided that this Section 11.3(f)
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shall not apply to any Damages to the extent caused by any failure of any
Financial Statement to comply with the representations set forth in Section
4.8.
10. Section 13.1(c). Section 13.1(c) of the Purchase Agreement is hereby
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deleted in its entirety and the following is substituted therefor:
(c) by any party hereto, upon prior written notice, if the Closing shall
not have occurred on or before November 30, 1995 for any reason other than
the failure or refusal of the party or parties seeking to terminate to
perform any of its or their obligations hereunder;
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11. No Claims, Etc. To the best of each of the parties' knowledge, as of the
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date of this Amendment No. 1 no party hereto has any claim (including without
limitation any claim for Damages) against any other party hereto with respect to
the Purchase Agreement or this Amendment No. 1 or any of the transactions
contemplated hereby or thereby.
12. Effective Date. Upon the execution and delivery hereof by the parties
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hereto, the modifications described in this Amendment No. 1 shall be effective
as of August 10, 1995 for all purposes, as if the Purchase Agreement contained
such modifications on such date.
13. Extent of Modifications. Except as expressly modified herein, all terms,
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conditions, covenants and agreements contained in the Purchase Agreement are
hereby confirmed and ratified and shall continue in full force and effect.
14. Termination. This Amendment No. 1 shall terminate and be of no further
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force and effect if Purchaser does not deliver the Share Deposit or the opinion
of Purchaser's counsel referred to in Section 4 of this Amendment No. 1 within
the six (6) business day period referred to in such Section 4.
15. Miscellaneous. (a) This Amendment No. 1 shall be binding upon and inure
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to the benefit of each of Purchaser, Seller, AGI and NDI and their respective
legal representatives, successors and assigns.
(b) This Amendment No. 1 may not be modified, amended or changed except in
accordance with the procedures set forth in Section 15.2 of the Purchase
Agreement.
(c) This Amendment No. 1 shall be governed by and construed and enforced
in accordance with the laws of the State of Connecticut as provided in Section
15.6 of the Purchase Agreement.
(d) The underlined Section headings in this Amendment No. 1 have been
inserted herein for convenience of reference only and are not a part of this
Amendment No. 1.
(e) This Amendment No. 1 may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which, when taken together,
shall constitute one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed as of the day and year first above written.
PHOENIX XXXXXXX p.l.c.
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
President
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Operations Director, Vice
President and Chief
Financial Officer
XXXXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
THE X.X. XXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
NEY DENTAL INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxx, III
Title: Secretary
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