EXHIBIT 10.1
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to the Agreement and Plan of Merger (this
"Amendment"), dated as of January 3, 2005, is by and among MIM Corporation, a
Delaware corporation ("Parent"), Chronimed Acquisition Corp., a Minnesota
corporation and direct wholly owned subsidiary of Parent ("Merger Sub"), and
Chronimed Inc., a Minnesota corporation (the "Company").
WITNESSETH:
WHEREAS, Parent, Corvette Acquisition Corp., a Delaware corporation and
direct wholly owned subsidiary of Parent ("Original Merger Sub"), and the
Company entered into that certain Agreement and Plan of Merger dated as of
August 9, 2004 (the "Merger Agreement");
WHEREAS, Original Merger Sub and Merger Sub entered into an Assignment and
Assumption Agreement, dated as of January 3, 2005, pursuant to which Original
Merger Sub assigned, and Merger Sub assumed, all rights, interests and
obligations of Original Merger Sub in, to and under the Merger Agreement; and
WHEREAS, each of Parent, Merger Sub and the Company desires to amend the
Agreement, pursuant to Section 10.2 of the Merger Agreement as set forth in this
Amendment.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties hereto agree as follows:
AGREEMENT
1. Amendment to Recital of Parties. The recital of parties to the Merger
Agreement is hereby amended (a) by deleting the phrase "(this `Agreement')" and
replacing it with the phrase "(as may be subsequently amended or modified, this
`Agreement')" and (b) by deleting the phrase "Corvette Acquisition Corp., a
Delaware corporation and direct wholly owned subsidiary of Parent" and replacing
it with the phrase "Chronimed Acquisition Corp., a Minnesota corporation and
direct wholly owned subsidiary of Parent".
2. Amendment to Second "WHEREAS" Clause. The second "WHEREAS" clause to
the Merger Agreement is hereby amended by deleting the term "unanimously".
3. Amendment to Section 1.1. Section 1.1 of the Merger Agreement is hereby
amended by deleting the phrase "the Delaware General Corporation Law (the
`DGCL') and".
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4. Amendment to Section 1.2. Section 1.2 of the Merger Agreement is hereby
amended in its entirety to read as follows:
Section 1.2. Effective Time; Closing. As promptly as practicable
(and in any event within five business days) after the satisfaction or
waiver of the conditions set forth in Article VIII hereof (other than
those conditions that by their nature are to be satisfied at the Closing),
the parties hereto shall cause the Merger to be consummated by filing
articles of merger with the Secretary of State of the State of Minnesota
(the "Minnesota Articles of Merger") and by making all other filings or
recordings required under the MBCA in connection with the Merger, in such
form as is required by, and executed in accordance with the relevant
provisions of, the MBCA. The Merger shall become effective upon the filing
of the Minnesota Articles of Merger with the Minnesota Secretary of State,
or at such other time as the parties hereto agree shall be specified in
the Minnesota Articles of Merger (the date and time the Merger becomes
effective, the "Effective Time"). On the date of such filing, a closing
(the "Closing") shall be held at 10:00 a.m., Eastern Time, at the offices
of King & Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other time and location as the parties hereto shall
otherwise agree.
5. Amendment to Section 1.3. Section 1.3 of the Merger Agreement is hereby
amended by deleting the phrase "the DGCL,".
6. Amendment to Section 1.4. Section 1.4 of the Merger Agreement is hereby
amended in its entirety to read as follows:
Section 1.4. Articles of Incorporation and Bylaws.
(a) At the Effective Time, the articles of incorporation of the
Company, as in effect immediately prior to the Effective Time, shall be
the articles of incorporation of the Surviving Corporation, until the same
shall thereafter be altered, amended or repealed in accordance with
applicable Law (as defined in Section 3.3 hereof) or such articles of
incorporation of the Surviving Corporation.
(b) At the Effective Time, the bylaws of the Company, as in effect
immediately prior to the Effective Time, shall be the bylaws of the
Surviving Corporation, until the same shall thereafter be altered, amended
or repealed in accordance with applicable Law, the articles of
incorporation of the Surviving Corporation or such bylaws of the Surviving
Corporation.
7. Amendment to Section 2.1(a). Section 2.1(a) of the Merger Agreement is
hereby amended by deleting the number "1.025" and replacing it with the number
"1.12".
8. Amendment to Section 4.2. Section 4.2 of the Merger Agreement is hereby
amended in its entirety to read as follows:
Section 4.2. Directors and Officers.
(a) As of the date of this Agreement, the Parent Board is composed
of nine directors. Prior to the mailing by Parent and the Company of the
Joint Proxy
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Statement/Prospectus (as defined in Section 7.9 hereof), Parent shall
designate five directors (consisting of Xxxxxxx X. Xxxxxxx, Xxxxxxxxx X.
Xxxxxxx, Xxxxx X. XxXxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxx) to
remain on the Parent Board after the Effective Time, and the Parent Board
shall take action to increase size of the Parent Board to ten directors
and to appoint (i) four individuals designated by the Company (consisting
of Xxxxx X. Xxxxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxx) to the Parent Board as of the Effective Time, and (ii) one
individual who was not previously affiliated with either Parent or the
Company who will be designated by Parent in consultation with the Company
(consisting of Xxxxxxx X. Xxxxxxx) to the Parent Board as of the Effective
Time. The remaining directors of Parent not designated to remain on the
Parent Board after the Effective Time shall resign from the Parent Board
as of the Effective Time. In addition, Parent and the Company shall each
designate (A) two directors (each of whom shall satisfy the relevant
independence requirements of the NMS Continued Listing Standards (the "NMS
Standards") and the Exchange Act) to serve on the audit committee of the
Parent Board (the "Audit Committee") after the Effective Time; (B) two
directors (each of whom shall satisfy the relevant independence
requirements of the NMS Standards and the Code) to serve on the
compensation committee of the Parent Board (the "Compensation Committee")
after the Effective Time; (C) two directors (each of whom shall satisfy
the relevant independence requirements of the NMS Standards) to serve on
the nominating committee of the Parent Board (the "Nominating Committee")
after the Effective Time; and (D) one director (who shall satisfy the
relevant independence requirements of the NMS Standards, the Exchange Act
and the Code) to serve, together with the Chairman of the Board and the
Chief Executive Officer/President, on the executive committee of the
Parent Board (the "Executive Committee") after the Effective Time (so that
there will be four members of each committee). The remaining members of
the Audit Committee, the Compensation Committee, the Nominating Committee
and the Executive Committee not designated to remain on such committees
after the Effective Time shall resign therefrom as of the Effective Time.
Parent does not have any other committees or subcommittees of the Parent
Board as of the date of this Agreement and shall not form or reinstate any
other committee or subcommittee of the Parent Board prior to the Effective
Time.
(b) As of and following the Effective Time until the Parent Board
determines otherwise, Xxxxxxx X. Xxxxxxxx shall be the Chairman of the
Parent Board, Xxxxx X. Xxxxxxxxxxx shall be the President and Chief
Executive Officer of Parent, Xxxxxxx X. Xxxxx shall be the Chief Financial
Officer of Parent, Xxxxx X. Xxxxxx shall be the Executive Vice President,
Secretary and General Counsel of Parent, and each of Xxxxxx Xxxxxxx, Xxxxx
Xxxxxx and Xxxxxxx X. Xxxxx shall be an Executive Vice President of
Parent.
9. Amendment to Section 4.3. Section 4.3 of the Merger Agreement is hereby
amended in its entirety to read as follows:
From and after the Effective Time, the corporate headquarters of Parent
shall be in Elmsford, New York, and the business headquarters of Parent
shall be in Minneapolis, Minnesota, each until determined otherwise, if
ever, by the Parent Board.
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10. Amendment to Section 5.3(a). Section 5.3(a) of the Merger Agreement is
hereby amended by deleting the phrase "Parent Stock Option Plans" and replacing
it with the phrase "MIM Corporation 2001 Incentive Stock Plan, the MIM
Corporation 1996 Incentive Stock Plan and the MIM Corporation 1996 Non-Employee
Directors Stock Incentive Plan".
11. Amendment to Section 5.4(a). Section 5.4(a) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(a) Each of Parent and Merger Sub has all necessary corporate power
and authority to execute and deliver this Agreement, to perform its
obligations hereunder and, subject to obtaining the Parent Required
Approvals (as defined in Section 5.4(d) hereof), to consummate the Merger
and the other transactions contemplated by this Agreement. The execution,
delivery and performance by Parent and Merger Sub of this Agreement, and
the consummation by each of them of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action
(including the approval of the Parent Board) and no other corporate
proceedings on the part of Parent or Merger Sub are necessary to authorize
this Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement (other than obtaining the Parent Required
Approvals and the filing and recordation of appropriate merger documents
as required by the MBCA). This Agreement has been duly executed and
delivered by Parent and Merger Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes a legal, valid and
binding obligation of each of them enforceable against them in accordance
with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, fraudulent transfer, moratorium or other similar
laws of general application affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of
equity, whether considered in a proceeding at law or in equity (the
"Bankruptcy and Equity Exception").
12. Amendment to Section 5.4(b). Section 5.4(b) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(b) At a meeting duly called and held, the Parent Board and the
Merger Sub Board (i) determined that this Agreement and the other
transactions contemplated hereby, including the Merger, are advisable and
fair to and in the best interests of Parent and the stockholders of
Parent, (ii) unanimously approved this Agreement and the transactions
contemplated hereby, including the Merger, and (iii) resolved to recommend
approval of the matters constituting the Parent Required Approvals by
Parent's stockholders. The actions taken by the Parent Board constitute
approval of the Merger, this Agreement and the other transactions
contemplated hereby by the Parent Board under the provisions of Section
203 of the Delaware General Corporation Law (the "DGCL") such that Section
203 of the DGCL does not apply to this Agreement, the Merger or the
transactions contemplated thereby.
13. Amendment to Section 5.4(d). Section 5.4(d) of the Merger Agreement is
hereby amended in its entirety to read as follows:
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(d) The affirmative vote of the holders of a majority of the shares
of Parent Common Stock present in person or represented by proxy and
entitled to vote at the Parent Stockholder Meeting, assuming there is a
quorum represented at such meeting, is the only vote of the holders of any
class or series of Parent's capital stock necessary to approve the
issuance of shares of Parent Common Stock in the Merger, and the
affirmative vote of the holders of a majority of the shares of Parent
Common Stock outstanding on the record date for such meeting is the only
vote of the holders of any class or series of Parent's capital stock
necessary to approve the amendment of the Parent Certificate of
Incorporation (collectively, the "Parent Required Approvals"). Except for
the Parent Required Approvals, no vote of the holders of any class or
series of Parent's capital stock is necessary to approve the Merger or any
of the other transactions contemplated hereby.
14. Amendment to Section 5.5. Section 5.5 of the Merger Agreement is
hereby amended by deleting clause (i) thereof and replacing it with the
following:
(i) conflict with or violate the Parent Certificate of Incorporation or
the Parent Bylaws or the articles of incorporation or bylaws of Merger
Sub,
15. Amendment to Section 5.6. Section 5.6 of the Merger Agreement is
hereby amended by deleting the term "DGCL" and replacing it with the term
"MBCA".
16. Amendment to Section 5.7(b). Section 5.7(b) of the Merger Agreement is
hereby amended by deleting the phrase "(the `Parent Compliance Program')".
17. Amendment to Section 5.8(a). Section 5.8(a) of the Merger Agreement is
hereby amended by deleting the phrase "Xxxxxxxx-Xxxxx Act" in the third sentence
and replacing it with the phrase "Xxxxxxxx-Xxxxx Act of 2002 (the
`Xxxxxxxx-Xxxxx Act')".
18. Amendment to Section 5.8(i). Section 5.8(i) of the Merger Agreement is
hereby amended by adding the word "the" before the phrase "Sarbanes Oxley Act".
19. Amendment to Section 6.3(d). Section 6.3(d) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(d) The vote of a majority of the voting power of the shares of
Company Common Stock outstanding on the record date for the Company
Stockholder Meeting is the only vote of the holders of any class or series
of the Company's capital stock necessary to approve this Agreement, the
Merger and the other transactions contemplated hereby.
20. Amendment to Section 6.6(b). Section 6.6(b) of the Merger Agreement is
hereby amended by deleting the phrase "(the `Company Compliance Program')".
21. Amendment to Section 6.22. Section 6.22 of the Merger Agreement is
hereby amended by deleting the phrase "Section 7.8" and replacing it with the
phrase "Section 7.9(e)".
22. Amendment to Section 7.5(b). Section 7.5(b) of the Merger Agreement is
hereby amended by inserting the phrase "of the Merger and this Agreement"
immediately prior to the phrase "(a `Company Subsequent Determination')".
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23. Amendment to Section 7.6(a). Section 7.6(a) of the Merger Agreement is
hereby amended by deleting the third sentence in its entirety and replacing it
with the following sentence:
Parent shall continue to keep the Company informed of the status and
details of any such Parent Acquisition Proposal.
24. Amendment to Section 7.6(b). Section 7.6(b) of the Merger Agreement is
hereby amended by deleting the first two sentences and replacing them with the
following:
Neither the Parent Board nor any committee thereof shall, except as
expressly permitted by this Section 7.6(b), (i) withdraw, qualify or
modify, or propose publicly to withdraw, qualify or modify, in a manner
adverse to the Company, the approval or recommendation of the Parent Board
or any committee of the Parent Board of the issuance of shares of Parent
Common Stock in the Merger and the amendment of the Parent Certificate of
Incorporation in connection with the Merger, (ii) approve or recommend, or
propose publicly to approve or recommend, any transaction involving a
Parent Acquisition Proposal from a third party (a "Parent Alternative
Transaction"), (iii) cause or permit Parent to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar
agreement related to any Parent Alternative Transaction, or (iv) agree or
resolve to agree to take any actions set forth in clauses (i), (ii) or
(iii) of this sentence. Notwithstanding the foregoing, if prior to the
Parent Stockholders Meeting at which the issuance of shares of Parent
Common Stock in the Merger and the amendment of the Parent Certificate of
Incorporation in connection with the Merger are approved, the Parent Board
determines in good faith that it is required to do so in order to comply
with its fiduciary duties to Parent's stockholders under applicable Law,
after it has received a Parent Superior Proposal in compliance with
Section 7.6(a) and after consultation with and having considered the
advice of independent outside counsel with respect to its fiduciary duties
to Parent's stockholders under applicable Law, the Parent Board may inform
Parent's stockholders that it no longer believes that the Merger is
advisable and no longer recommends approval of the issuance of shares of
Parent Common Stock in the Merger and the amendment of the Parent
Certificate of Incorporation in connection with the Merger (a "Parent
Subsequent Determination"), but only at a time after the fifth business
day following the Company's receipt of written notice advising the Company
that the Parent Board is prepared to so inform Parent stockholders.
25. Amendment to Section 7.9(b). Section 7.9(b) of the Merger Agreement is
hereby amended by deleting the second sentence in its entirety and replacing it
with the following sentence:
The Company shall submit this Agreement, the Merger and any other matters
constituting the required approval to the Company's shareholders at the
Company Stockholders Meeting and shall use its reasonable efforts to
obtain the required approval of the Company's shareholders and the Company
Board shall, subject to Section 7.5, recommend approval and adoption of
this Agreement and approval of the Merger by the shareholders of the
Company.
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26. Amendment to Section 7.9(c). Section 7.9(c) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(c) Parent shall, as promptly as practicable following the execution
of this Agreement, duly call, give notice of, convene and hold the Parent
Stockholders Meeting for the purpose of obtaining the Parent Required
Approvals. Parent shall submit the matters constituting the Parent
Required Approvals to Parent's stockholders at the Parent Stockholders
Meeting and shall use its reasonable efforts to obtain the required
approval of Parent's stockholders, and the Parent Board shall recommend
approval by the stockholders of Parent of the matters constituting the
Parent Required Approvals. Without limiting the generality of the
foregoing, Parent agrees that its obligations pursuant to the first two
sentences of this Section 7.9(c) shall not be affected by (i) the
commencement, public proposal, public disclosure or communication to
Parent or any other person of any Parent Acquisition Proposal or Parent
Superior Proposal or (ii) the withdrawal or modification by the Parent
Board or any committee thereof of such Board's or committee's approval or
recommendation of the matters constituting the Parent Required Approvals.
27. Amendment to Section 7.9(f). Section 7.9(f) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(f) Merger Sub shall submit this Agreement to Parent, as the sole
stockholder of Merger Sub, for adoption and approval. Upon such
submission, Parent, as sole stockholder of Merger Sub, shall adopt this
Agreement and approve the transactions contemplated by this Agreement by
unanimous written consent in lieu of a meeting in accordance with the
requirements of the MBCA and the articles of incorporation and bylaws of
Merger Sub.
28. Amendment to Section 7.10(c). Section 7.10(c) of the Merger Agreement
is hereby amended by deleting the term "plans" and replacing it with the term
"plan".
29. Amendment to Section 7.11(a). Section 7.11(a) of the Merger Agreement
is hereby amended in its entirety to read as follows:
(a) Parent shall assume the Company Stock Option Plans in connection
with the conversion of Company Options into options to purchase Parent
Common Stock pursuant to Section 2.4 of this Agreement. No options to
purchase Company Common Stock shall be granted under any Company Stock
Option Plan after the Effective Time. No shares of Parent Common Stock
shall be issued upon the exercise of any Company Option granted under any
Company Option Plan, except for Company Options assumed pursuant to
Section 2.4.
30. Amendment to Section 8.1(a). Section 8.1(a) of the Merger Agreement is
hereby amended in its entirety to read as follows:
(a) This Agreement and the Merger shall have been approved and
adopted by the requisite vote of the Company's shareholders under the
MBCA, the NMS Standards, the Company Articles of Incorporation and the
Company Xxxxxx,
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and the Parent Required Approvals shall have been obtained by the
requisite vote of Parent's stockholders under the DGCL, the NMS Standards,
the Parent Certificate of Incorporation and the Parent Bylaws;
31. Amendment to Section 8.1(f). Section 8.1(f) of the Merger Agreement is
hereby amended by deleting the phrase "Section 8.4(f)" and replacing it with the
phrase "Section 8.1(f)".
32. Amendment to Section 9.1(c). Section 9.1(c) of the Merger Agreement is
hereby amended by deleting the date "December 31, 2004" and replacing it with
the date "April 30, 2005".
33. Amendment to Section 9.1(d). Section 9.1(d) of the Merger Agreement is
hereby amended by (a) deleting the phrase "(i) if" and replacing it with the
phrase "if (i)" and (b) deleting the phrase "this Agreement or the Merger" in
clause (ii) thereof and replacing it with the phrase "the matters constituting
the Parent Required Approvals".
34. Amendment to Section 9.1(f). Section 9.1(f) of the Merger Agreement is
hereby amended by deleting the phrase "Parent's stockholders, or the issuance of
stock in the Merger" and replacing it with the phrase "the matters constituting
the Parent Required Approvals".
35. Amendment to Section 10.6. Section 10.6 of the Merger Agreement is
hereby amended by deleting the phrase "and the DGCL".
36. Amended to Section 10.11(d). Section 10.11(d) of the Merger Agreement
is hereby amended in its entirety to read as follows:
(d) For purposes of this Agreement, the phrases "to the knowledge of
Parent," "known to Parent," and similar formulations shall mean the actual
knowledge of Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxx X. Xxxx (but only
with respect to matters actually known by him on or prior to the date of
termination of his employment with Parent), Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx or Xxxxxxx X. Sicilian (but only with respect to
matters actually known by him on or prior to the date of termination of
his employment with Parent).
37. Amendment to Section 10.11(e). Section 10.11(e) of the Merger
Agreement is hereby amended in its entirety to read as follows:
(e) For purposes of this Agreement, the phrases "to the knowledge of
the Company," "known to the Company," and similar formulations shall mean
the actual knowledge of Xxxxx X. Xxxxxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxx or Xxxxxxx
X. Xxxxxxxx.
38. Full Force and Effect. Except as expressly modified by this Amendment,
all of the terms and provisions of the Agreement remain in full force and
effect.
39. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
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40. Headings. The descriptive headings contained in this Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment.
41. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
MIM CORPORATION
By /S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
CHRONIMED ACQUISITION CORP.
By /S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
CHRONIMED INC.
By /S/ Xxxxx X. Xxxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxxx
Chief Executive Officer
Acknowledged and Agreed as of the
date first first above written:
CORVETTE ACQUISITION CORP.
By /S/ Xxxxxxx x. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
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