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EXHIBIT 10.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER
AMENDMENT
No. 1, dated as of June 4, 2007 (this “ Amendment
”), to the Merger Agreement (as defined below), by and among
National Home Health Care Corp., a Delaware corporation (the
“ Company ”), AG Home Health Acquisition Corp.,
a Delaware corporation (“ Acquisition Corp. ”),
and AG Home Health LLC, a Delaware limited liability company
(“ Parent ”).
WHEREAS,
the Company, Acquisition Corp. and the Parent have entered into the
Amended and Restated Agreement and Plan of Merger, dated as of May
9, 2007 (the “ Merger Agreement ”), whereby
Acquisition Corp. shall be merged with and into the Company and the
separate corporate existence of Acquisition Corp. shall cease, and
the Company shall continue as the surviving corporation of such
merger.
WHEREAS,
in accordance with Section 8.03 of the Merger Agreement, the
Company, Acquisition Corp. and the Parent desire to amend certain
sections of the Merger Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual representations,
warranties and covenants contained herein and in the Merger
Agreement, and intending to be legally bound, the Company,
Acquisition Corp. and the Parent hereby agree as
follows:
ARTICLE I
AMENDMENT
Section
1.01. Amendments .
(a)
In the first sentence of Section 2.01(a) of the Merger
Agreement, the clause “$12.50” is hereby deleted and
replaced with the following clause: “$12.75".
(b)
In the first sentence of Section 5.02(a) of the Merger
Agreement, the clause “May 29, 2007” is hereby deleted
and replaced with the following clause: “June 15,
2007".
(c)
In clause (i) of Section 5.02(b) of the Merger Agreement,
the clause “five Business Days after the date hereof”
is hereby deleted and replaced with the following clause:
“June 5, 2007".
(d)
In clause (i) of Section 5.03 of the Merger Agreement, the
clause “ten (10) Business Days after the date hereof”
is hereby deleted and replaced with the following clause:
“June 5, 2007".
(e)
In the first sentence of Section 5.12(a) , the clause
“and all amendments thereto as of June 4, 2007” is
added after the clause “financing
commitment.”
(f)
In Section 5.13 , the following sentence is added after the
second sentence thereof:
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“Without limiting the foregoing, the Parent hereby
consents to the Company’s settlement of the current
litigation in the Delaware Court of Chancery (C.A. No. 2683-VCL)
for a payment of $0.10 per Common Share to all holders of Common
Shares other than the defendants and their families, such consent
to be conditioned upon the Parent’s approval of the form of
Stipulation of Settlement to be signed in connection therewith,
such Stipulation to provide that legal fees will be determined
pursuant to application to the court and that the Company reserves
its rights to make objections to any fee settlement
proposals.” |
(g)
Section 6.02(i) of the Merger Agreement is hereby deleted
and replaced with the following sentence:
“(i)
Dissenting Shareholders . Holders owning no more than
fifteen percent (15%) of the outstanding Common Shares shall have
perfected and not withdrawn a demand for appraisal rights pursuant
to the DGCL.”
(h)
Section 6.02(j) of the Merger Agreement is hereby deleted
and replaced with the following sentence:
“(j)
Employment Agreements . Parent shall h
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