Exhibit 10.110
AMENDMENT NO. 1
to
AGREEMENT AND PLAN OF MERGER
Amendment No. 1, dated as of August 14, 1998 (the "Amendment")
to AGREEMENT AND PLAN OF MERGER dated as of August 3, 1998 (the "Merger
Agreement"), among XXXXX XXXXXX, INC., a Delaware corporation ("Parent"), HSI
ACQUISITION CORP., a Michigan corporation and wholly-owned subsidiary of Parent
("Sub"), X. Xxxx Dental Supply Co., a Michigan corporation ("Meer"), and Xxxxxx
X. Xxxx, individually and as Trustee of the Xxxxxx X. Xxxx Revocable Living
Trust dated November 17, 1972 (the "Xxxxxx X. Xxxx Trust"), Xxxxx X. Xxxx,
individually and as Trustee of the Xxxxx X. Xxxx Revocable Living Trust dated
May 10, 1989, as amended, Xxxxxx X. Xxxx, individually and as Trustee of the
Xxxxxx X. Xxxx Revocable Living Trust dated August 20, 1991, Xxxxxxx X. Xxxx,
individually and as Trustee of the Xxxxxxx X. Xxxx Revocable Living Trust dated
August 20, 1984, as amended, Xxxxx Xxxxxxxxxx, individually and as Trustee of
the Xxxxx Xxxxxxxxxx Revocable Living Trust dated December 18, 1993, Xxxxxxx X.
Xxxxxxxxxx, individually and as Trustee of the Xxxxxxx X. Xxxxxxxxxx Revocable
Living Trust dated December 18, 1993, Xxxx Xxxxxxxxxx, individually and as
Trustee of the Xxxx Xxxxxxxxxx Revocable Living Trust dated June 5, 1997, Xxx
Xxxxxx and Xxx Xxxx Xxxxxxxxxx (each sometimes hereinafter referred to
individually as a "Stockholder" and, collectively, as the "Stockholders"). The
Stockholders are, collectively, the holders of all of the outstanding capital
stock of Meer. Capitalized terms used herein and not otherwise defined have the
meanings assigned in the Merger Agreement.
Whereas, the Officer's Certificate to be delivered on behalf
of Meer pursuant to Sections 7.2(a) and (b) of the Merger Agreement, a copy of
which is attached hereto (the "Officer's Certificate), identifies certain items
on Exhibit A thereto (the "Identified Items") as exceptions to the
certifications required under Section 7.2(a) and (b) of the Merger Agreement as
conditions to Parent's and Sub's obligation to effect the Merger; and
Whereas, Parent and Sub are willing to waive such conditions
and effect the Merger on the terms set forth herein;
Now, therefore, the parties hereto agree as follows:
1. Waiver of Conditions to Closing. Subject to the
satisfaction of all of the other conditions to the obligations of Parent and Sub
to effect the Merger, Parent and Sub hereby accept the Officer's Certificate in
satisfaction of the conditions to their obligations to close set forth in
Sections 7.2(a) and 7.2(b) of the Merger Agreement. Without limiting the
generality of the proviso contained in Section 6.6 of the Merger Agreement, Meer
and the Stockholders acknowledge and agree that the foregoing waiver and the
disclosure to Parent and Sub of the Identified Items and the consummation of the
Merger shall not be deemed to modify or otherwise affect any of the
representations, warranties or obligations of Meer or any of the Stockholders
under the Merger
Agreement or otherwise limit or affect the remedies available to Parent and Sub
under the Merger Agreement or applicable Law.
2. Waiver of Limits to Indemnification. The Stockholders
jointly and severally agree that their obligations under Section 9.2 of the
Merger Agreement to indemnify the Parent Claimants from any Losses arising out
of or relating to the action titled Xxxxx Xxxxxxxxxx x. X. Xxxx Dental Supply
Co. and Xxxx Xxxxxxxxx, individually and as agent for Meer Dental Supply
Company, included as one of the Identified Items, or any other action, suit,
proceeding or claim arising out of or related to the same facts and
circumstances that are the subject of such action, shall not be subject to the
Basket Amount threshold or to the Indemnification Termination Date time
limitation for asserting claims for indemnification set forth in Section 9.4(i).
3. Continued Forced Effect. Except as expressly amended by
this Amendment, the Merger Agreement shall continue in full force and effect in
accordance with its terms. References in the Merger Agreement to "this
Agreement" shall be deemed to refer to the Merger Agreement as made by this
Amendment.
4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the provisions thereof relating to conflicts of law.
5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of Parent, Sub, Meer and the
Stockholders has executed this Amendment as of the date first above written.
XXXXX XXXXXX, INC.
By: /s/ Xxxx Xxxxxx
-----------------------
Name:
Title:
HSI ACQUISITION CORP.
By: /s/ Xxxx Xxxxxx
-----------------------
Name:
Title:
X. XXXX DENTAL SUPPLY CO.
By: /s/ Xxxxx X. Xxxx
-----------------------
Name:
Title: President
/s/ Xxxxxx X. Xxxx
---------------------------------------------
Xxxxxx X. Xxxx, Individually and as Trustee
of the Xxxxxx X. Xxxx Revocable Living Trust
dated November 17, 1972
/s/ Xxxxx X. Xxxx
---------------------------------------------
Xxxxx X. Xxxx, Individually and as Trustee
of the Xxxxx X. Xxxx Revocable Living Trust
dated May 10, 1989, as Amended
/s/ Xxxxxx X. Xxxx
---------------------------------------------
Xxxxxx X. Xxxx, Individually and as Trustee
of the Xxxxxx X. Xxxx Revocable Living Trust
dated August 20, 1989
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
Xxxxxxx X. Xxxx, Individually and as Trustee
of the Xxxxxxx X. Xxxx Revocable Living Trust
dated August 20, 1984, as Amended
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------------
Xxxxx Xxxxxxxxxx, Individually and as Trustee
of the Xxxxx Xxxxxxxxxx Revocable Living Trust
dated December 18, 1993
/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxxxxx, Individually and as Trustee
of the Xxxxxxx X. Xxxxxxxxxx Revocable Living Trust
dated December 18, 1993
/s/ Xxxx Xxxxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxxxx, Individually and as Trustee
of the Xxxx Xxxxxxxxxx Revocable Living Trust
dated June 5, 1997
/s/ Xxx Xxxxxx
---------------------------------------------
Xxx Xxxxxx
/s/ Xxxx Xxxx Xxxxxxxxxx
---------------------------------------------
Xxxx Xxxx Xxxxxxxxxx
