exv10w4






EXHIBIT 10.4




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 (31st) 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”).



The Parties expressly waive all rights under Section 1542 of the Civil Code of California which
provides:



“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”



The Parties agree that the possibility that such unknown claims exist was taken into account in
determining the amount of consideration set forth in this Amendment No. 2, a material condition of
which was the giving of the above release.




4. Dismissal of the Litigation with Prejudice




     (a) Dismissal of the Litigation (as defined in the Amendment No. 1) shall occur only upon
payment of the last installment of Additional Consideration set forth in Section 1, above, at which
time the Parties agree to jointly execute and file a Stipulation of Dismissal with Prejudice with
the U.S. District Court for the District of Utah in the form attached as Exhibit B to Amendment No.
1, and to file the proposed Order of Dismissal with Prejudice in the form attached hereto as
Exhibit C to Amendment No. 1. The terms and provisions set forth in the Stipulation of Dismissal
With Prejudice and the proposed Order of Dismissal with Prejudice are incorporated herein by this
reference.



     (b) The Parties further agree that upon execution of this Amendment No. 2, they shall jointly
inform the Arbitrator of this Amendment No. 2 and jointly request that the Arbitrator continue to
suspend the Arbitration proceeding until the last installment of Additional Consideration is made
and the Stipulation of Dismissal With Prejudice and Proposed Order of Dismissal with Prejudice are
filed, at which time the Parties shall also dismiss the Arbitration proceeding with prejudice. The
Parties acknowledge that they have each paid all of the Arbitrator’s invoices to date in full.
Accordingly, the Parties further agree to mutually request that the Arbitrator refund all amounts
paid in excess of his total invoices as follows: 50% to the Shareholders’ Representative and 50%
to TLC.



     (c) In the event TLC defaults on the payment of any cash Amendment Consideration set forth in
Section 1, above, then, notwithstanding, the mutual release in Section 3 above, the Arbitration
proceeding may be reinstated by either Party informing the Arbitrator of the default and requesting
that the Arbitration be rescheduled. Upon such default, the Shareholders’ Representative also
shall be entitled to refile his motion to reopen the proceedings in the U.S. District Court for the
District of Utah for the purpose of compelling arbitration of Year Two and Year Three Additional
Consideration payments pursuant to the original Section 2.03 of the Agreement, voiding the
amendments contemplated by Sections 1 and 3 above, with any Amendment Consideration paid prior to
such date to be held in trust to either off-set an obligations ultimately found by the Arbitrator
to be due to the Arbitrator to be due to the Shareholders or refunded to TLC as applicable;
provided that for purpose of such off-set or refund, as applicable, the TruHearing Shares shall be
valued at an aggregate $750,000 cash value rather than refunded in kind. The intent of the Parties
is that such a default by TLC will allow the Shareholders’ Representative to elect either (a) to
sue for breach of this Amendment No. 2 or (b) to void Sections 1 and 3 of this Amendment No. 2 and
pursue Arbitration of Years One, Two, and Three upon the terms of the unamended Section 2.03 of the
Agreement. In the event of any reinstatement of the Arbitration or the Litigation, all Parties
reserve all rights, and shall be permitted to assert all claims, counterclaims and defenses,
including but not limited to claims, counterclaims or defenses that arose prior to the Amendment
No. 2 Effective Date, against any Person in any forum, including but not limited to the Litigation
or the arbitration, notwithstanding Section 3 (excepting only that TLC covenants not to bring any
claim relating to actions taken in reliance on the amendments to the noncompetition covenants
set forth in Section 2).



 









 




5. Confidentiality. Except for disclosures made by the Shareholders’ Representative to the
Shareholders and discussions between the same related to any matter involved with this Amendment
No. 2, the Parties agree to keep the terms and the negotiation of this Amendment No. 2 strictly
confidential, and not to disclose any of the terms of this Amendment No. 2, except: (a) upon the
written agreement of each of TLC and the Shareholder’ Representative; (b) by order of any court;
(c) to the extent required by any state or federal corporate disclosure, financial reporting,
securities or taxation law, rule, or regulation; (d) to the Parties’ respective current officers,
directors, and members; (e) as may be necessary to enforce or perform the terms hereof; (f) as
otherwise required by law; or (g) after TLC or TLC Canada discloses the terms of this Amendment No.
2 in a publicly available disclosure.



6. Authority to Execute. Each person executing this Amendment No. 2 on behalf of the
Parties specifically warrants that he or she has full power and authority to execute this Amendment
No. 2 on behalf of such Party. The Shareholders’ Representative specifically represents and
warrants that he has the authority to execute this Amendment No. 2 for and on behalf of all
Shareholders and agrees to indemnify and hold harmless the other Parties and their respective
directors, officer and employees from and against all losses, damages, liabilities, costs and
expenses, including attorneys’ fees and other legal expenses, arising directly from any claim or
proceeding by any Shareholder that this Amendment No. 2 is not binding on all Shareholders or that
the provisions of Section 3 above are not a full and complete release as to the Amendment No. 2
Released Matters.



7. Knowledge. The Parties acknowledge that they have read this Amendment No. 2, have had an
opportunity to review the same with legal counsel and to make such investigation of the facts
pertaining to the execution of this Amendment No. 2 as they or their legal counsel deem necessary
and have entered into this Amendment No. 2 with full awareness and understanding of the contents
hereof.



8. Full Force and Effect. Except as amended hereby, the Agreement shall remain in full
force and effect.



9. Miscellaneous Provisions. The provisions of Sections 8.01-8.12 of the Agreement shall
apply to this Amendment No. 2, mutatis mutandis.



10. Governing Law; Jurisdiction; Venue. This Amendment No. 2 shall be interpreted,
construed, and enforced in accordance with and governed by the laws of the State of Utah without
giving effect to any conflict of law provisions, and each party hereby submits to the exclusive
personal jurisdiction of, and exclusive venue for the enforcement of any provision of this
Amendment No. 2, in the state and federal courts situated in Salt Lake City, Utah.




[Signature page follows]




 









 








IN WITNESS WHEREOF, this Amendment No. 2 to Agreement and Plan of Merger is hereby executed as

of the Amendment No. 2 Effective Date.




	 	 	 	 	 
	 	 	 
	 	By:  	                                                 /s/ Lindsay T. Atwood
 	 
	 	 	Lindsay T. Atwood 	 
	 	 	Individually and by and on behalf of the

Shareholders (as defined in the Agreement) 	 
	 
	 	TLC VISION CORPORATION

TLC VISION (USA) CORPORATION

TRUVISION, INC.

 	 
	 	By:  	   /s/ Michael F. Gries
 	 
	 	 	Name:  	Michael F. Gries 	 
	 	 	Title:  	Chief Restructuring Officer 	 



 









 






	 	 	 	 	 



Schedule 2.03(a)(iii)




Quarterly Payments




	 	 	 	 	 
	Payment Date	 	Payment Amount
	April 5, 2010
	 	$	260,000	 
	July 5, 2010
	 	$	260,000	 
	October 5, 2010
	 	$	260,000	 
	January 5, 2011
	 	$	260,000	 
	April 5, 2011
	 	$	260,000	 
	July 5, 2011
	 	$	260,000	 
	October 5, 2011
	 	$	260,000	 
	January 5, 2012
	 	$	260,000	 
	April 5, 2012
	 	$	260,000	 
	July 5, 2012
	 	$	260,000	 
	October 5, 2012
	 	$	260,000	 
	January 5, 2013
	 	$	260,000	 
	April 5, 2013
	 	$	260,000	 
	July 5, 2013
	 	$	260,000	 
	October 5, 2013
	 	$	260,000	 
	January 5, 2014
	 	$	260,000	 
	April 5, 2014
	 	$	260,000