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SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Second
Amendment"), dated as of April 17, 2000, is by and among American Medical
Systems, Inc., a Delaware corporation ("Parent"), Influence, Inc., a Delaware
corporation ("Company"), on and behalf of itself and Persuade Merger Corp., a
wholly owned subsidiary of AMS ("PMC") which has been merged with and into the
Company, Xxxxxxxxx Engineering Ltd., an Israeli company, Urotek Ltd., an Israeli
company, Katsumi Oneda, an individual residing in the State of New Jersey, and
Xxxxx X. Xxxx, an individual residing in the State of New York (collectively
referred to herein as the "Principal Stockholders") and Xxxxx X. Xxxx, Xxxx
Xxxxxxxxx and Xxxxxxxxx Xxxxx, M.D. (collectively referred to herein as the
"Stockholders' Representatives").
WHEREAS, the parties have entered into an Agreement and Plan of Merger,
dated as of November 12, 1999 (the "Merger Agreement").
WHEREAS, the parties have amended the Merger Agreement as set forth in
the First Amendment to the Agreement and Plan of Merger, dated December 16, 1999
(the "First Amendment").
WHEREAS, the parties desire to further amend the Merger Agreement to
correct certain calculations and to make certain adjustments as set forth
herein.
ACCORDINGLY, the parties hereby agree as follows:
1. Reduction of Merger Consideration. Section 2.8(e) of the Merger
Agreement, is hereby amended to read in its entirety as follows:
(e) The amount of Merger Consideration to be paid by Parent in
connection with the Merger consisting of the Initial Merger
Consideration, Contingent Merger Consideration and Holdback Merger
Consideration shall be reduced and retained by Parent by an amount
equal to the product of (x) the amount of the Merger Consideration
payable pursuant to this Agreement, multiplied by (y) the Retained
Percentage. The Retained Percentage for purposes of this Section 2.8(e)
shall mean: (i) with respect to the Initial Merger Consideration, a
fraction equal to .025577, or $490,632.88, representing that portion of
the Initial Merger Consideration that would have been distributable
pursuant to the Escrow and Exchange Agency Agreement to Urotek Ltd.
("Urotek") in respect of the 225,000 shares of Company Common Stock
owned by Urotek that is subject to the Exchange Agreement (the "Urotek
Retained Shares"); (ii) with respect to the Contingent Merger
Consideration, a fraction equal to .023415; and (iii) with respect to
the Holdback Merger Consideration, a fraction equal to .026480.
2. Adjustment to Reduction of Initial Merger Consideration. Based on
actual Initial Merger Consideration (taking account of adjustments made
at the closing), post-closing adjustments and refund/adjustment
payments by AMS to the Exchange Agent, the actual amount of Initial
Merger Consideration otherwise payable in respect of 225,000 shares
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should have been $490,632.88. The amount of the Urotek Retained Amount
in the Funds Flow Memorandum was stated as $530,306. AMS shall
therefore pay $39,673.12 (the difference between the Urotek Retained
Amount and the actual amount of Initial Merger Consideration payable in
respect of 225,000 shares) to the Exchange Agent as additional Initial
Merger Consideration.
3. Defined Terms. Capitalized words that are not defined herein shall have
the meaning given to them in the Merger Agreement.
4. No Other Amendments. Except as amended herein, the Merger Agreement
shall remain in full force and effect in accordance with its original
terms.
5. Counterparts. This Second Amendment may be signed in any number of
counterparts and the signatures delivered by facsimile, each of which
shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(Following Page is the Signature Page)
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
AMERICAN MEDICAL SYSTEMS, INC. INFLUENCE, INC.
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx Xxxx
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Title: President and CEO Title: President and CEO
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XXXXXXXXX ENGINEERING LTD.
an Israeli company
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Director
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UROTEK LTD. KATSUMI ONEDA
an Israeli company /s/ Katsumi Oneda
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By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx XXXXX X. XXXX
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Title: Director /s/ Xxxxx X. Xxxx
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STOCKHOLDERS' REPRESENTATIVES
The Stockholders' Representatives consent to and adopt
the foregoing Second Amendment to the Merger Agreement
on and as of the date first above written
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
as Stockholders' Representative
/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx, M.D.
as Stockholders' Representative
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
as Stockholders' Representative
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