AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO.
2 (this “ Amendment No. 2 ”) to Agreement
and Plan of Merger, dated as of October 27, 2005 (the “
Agreement ”), as amended by Amendment No. 1 to
Agreement and Plan of Merger, dated as of May 13, 2008
(“ Amendment No. 1 ”), by and among
TruVision, Inc., a Utah corporation (the “ Company
”), TLC Wildcard Corp., a Utah corporation (“
Mergersub ”), TLC Vision Corporation, a New Brunswick
corporation ( TLC Canada ”), TLC Vision
(USA) Corporation, a Delaware corporation (“ TLC
’), and Lindsay T. Atwood, by and on behalf of each
Shareholder (the “ Shareholders’ Representative
”) (collectively, the “ Parties ”), is
entered into this 10th day of August, 2009 (the “
Amendment No. 2 Effective Date ”). For purposes
of this Amendment No. 2, capitalized terms shall have the same
meaning as those terms defined in the Agreement, unless otherwise
provided.
WHEREAS, pursuant
to Section 2.03 of the Agreement, TLC is obligated to pay to
the Company the Amendment Consideration; and
WHEREAS, the
Parties have agreed to modify such obligation.
NOW THEREFORE, in
consideration of the terms and subject to the conditions herein,
and for other good and valuable consideration the sufficiency of
which is hereby acknowledged, the Parties agree as
follows:
1.
Amendment to Section 2.03 (Additional Consideration)
.
a.
Section 2.03(a)(iii) of the Agreement shall be amended and
replaced in its entirety by the following:
“(iii) (a)
$340,000 cash upon the Amendment No. 2 Effective Date; (b)
$340,000 cash on October 5, 2009; (c) $340,000 cash on
January 5, 2010; and (d) thereafter payments shall be
made in the amounts and on the dates set forth on
Schedule 2.03(a)(iii) ;”.
b. The
Agreement is further amended by adding
Schedule 2.03(a)(iii) in the form attached
hereto.
c. Section 2.03(b)
of the Agreement shall be amended and replaced in its entirety by
the following:
“(b) The
Amendment Consideration shall not be represented by promissory
notes, shall not be secured and shall not accrue interest;
provided, however, that in the event TLC fails to deliver any cash
payment of Additional Consideration when due, then (i) the
amount of such delinquent payment (the “ Delinquent
Amount ”) shall immediately be assessed a late fee equal
to ten percent (10%) of such Delinquent Amount and (ii) simple
interest shall accrue on the entire amount of the Amendment
Consideration set forth in Section 2.3(a)(iii) above, whether
paid or payable, at the rate of ten percent (10%) per annum from
the date of this Amendment No. 2 to the date that the entire
Amendment Consideration, together with any Delinquent Amount and
all accrued interest, is paid in full.”
2.
Additional Agreements . The Parties agree that, in
the event TLC fails to deliver any cash payment of Additional
Consideration as provided for in the Agreement, as amended, within
thirty (30) days after the date such payment is due, then on
the thirty-first (31 st )
day after such payment date each of the agreements described in
clauses (3) and (4) of Section 3(b) of Amendment
No. 1 shall terminate in full, including without limitation
any and all non-competition and non-solicitation obligations,
covenants or restrictions set forth in such agreements.
3. Mutual
Release . Effective as of the Amendment No. 2
Effective Date, TLC, TLC Canada, the Company, Lindsay T. Atwood
individually and as Shareholders’ Representative, and each of
the Shareholders, severally, on behalf of himself, herself, or
itself, and for each and all of his, hers, or its respective
partners, subsidiaries, affiliates (as defined in SEC
Rule 12b-2), associates (as defined in SEC Rule 12b-2),
successors, assigns, heirs and others claiming through or under
him, her or it, hereby completely release acquit, and forever
discharge one another and their respective past or present
officers, directors, shareholders, members, managers,
representatives, employees, counsel, insurers, agents, personal
representatives, predecessors, successors, partners, subsidiaries,
division, assigns,
spouse, heirs,
affiliates (as defined in SEC Rule 12b-2), associates (as
defined in SEC Rule 12b-2) and any members of their immediate
families from and against any and all claims, including those in
law or equity, demands, rights, obligations, debts, expenses
(including attorneys’ and accountants’ fees and
expenses), liabilities, defenses or cause of action, whether known
or unknown, alleged or not alleged, recited, described, or
currently asserted, fixed or contingent, current or future, direct
or derivative, individual or representative, (1) of every
nature and description whatsoever, which they have, may have, or
could arise or could have asserted from the beginning of time up to
and including the Amendment No.2 Date, and (2) which they
have, may have or could arise, could have been asserted or could in
the future assert against one another that arise out of, concern,
or relate to, such party’s obligations under the Agreement,
including without limitation, all transactions and agreements
contemplated therein or related thereto (the “ Amendment
No. 2 Released Matters ”).
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