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EXHIBIT 3
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ACCUMED INTERNATIONAL, INC.,
ACCUMED ACQUISITION CORP.
AND
AMPERSAND MEDICAL CORPORATION
THIS AMENDMENT NO. 1 is made and entered into as of the 10th day of May,
2001, by and among AccuMed International, Inc., a Delaware corporation
("AccuMed"), AccuMed Acquisition Corp., a Delaware corporation ("Acquisition
Sub"), and Ampersand Medical Corporation ("Ampersand").
WITNESSETH:
WHEREAS, the parties hereto have heretofore entered into that certain
Agreement and Plan of Merger dated as of February 7, 2001 (the "Merger
Agreement"), pursuant to which AccuMed will be merged with and into Acquisition
Sub and thereby become a wholly-owned subsidiary of Ampersand; and
WHEREAS, the parties hereto have determined that it would be in their
respective best interests to modify and amend certain terms and provisions of
the Merger Agreement, and the directors of each of the parties hereto have
unanimously approved such modifications and amendments and directed the
respective officers of the parties to give effect to such changes;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledge, the parties hereto hereby agree as
follows:
1. Closing Date; Termination Date.
(a) The last sentence of Section 1.11 of the Merger Agreement is
hereby amended to change the date set forth therein from "May 31, 2001" to "July
31, 2001."
(b) The tenth and thirteenth lines of Section 4.4 (a)(iii), the
eighth, ninth, eighteenth and nineteenth lines of Section 4.4(a)(iv), the second
line of Section 4.4(a)(v), and the fourth line of Section 5.5, of the Merger
Agreement are each hereby amended to change the dates set forth therein from
"May 31, 2001" to "July 31, 2001."
(c) In the event that the Registration Statement has not become
effective on or prior to June 17, 2001, then all references in the Merger
Agreement to "July 31, 2001" shall
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automatically, without further action by the parties hereto, be amended to
"September 30, 2001," such amendment to become effective as of June 17, 2001.
2. Ampersand Loan Obligations. The first sentence of ss.1.12(b) of the
Merger Agreement is hereby deleted in its entirety and replaced by the
following:
"Ampersand and AccuMed also hereby agree that if by February 28, 2001
the Merger and the transactions contemplated hereby have not been
consummated, then Ampersand shall loan additional monies (the "Additional
Loans") to AccuMed as and when needed by AccuMed for use in its ordinary
and usual business operations on the same terms and conditions as the Full
Loan, except that:
(i) simultaneously with the making of each Additional Loan, the
collateral securing the Full Loan under the Security Agreement shall be
increased in accordance with the terms of the Security Agreement in order
to secure such Additional Loan as well, and AccuMed shall issue and deliver
to Ampersand a new promissory note, substantially in the form of the
Replacement Note, evidencing such Additional Loan;
(ii) such Additional Loans shall be made on the first day of each
month through and including the month in which the Merger and the
transactions contemplated hereby are consummated or the month in which this
Agreement is terminated in accordance with the provisions hereof, whichever
comes first;
(iii) the Additional Loans to be made on March 1, 2001 and April 1,
2001 shall be made automatically, without any request therefor being
necessary, and each shall be in the amount of Two Hundred Twenty-Five
Thousand Dollars ($225,000);
(iv) the Additional Loan to be made on May 1, 2001 shall be made
automatically, without any request therefor being necessary, and shall be
in the amount of One Hundred Fifty Thousand Dollars ($150,000);
(v) the Additional Loans to be made on June 1, 2001 and the first day
of each month thereafter until the Merger closes or the Merger Agreement is
terminated, shall be made automatically, without any request therefor being
necessary, in the amount of One Hundred Thousand Dollars ($100,000);
provided, however, that upon the written request of AccuMed, delivered to
Ampersand in accordance with the provisions hereof no less than two (2)
business days prior to the last day of the month immediately preceding the
scheduled payment date of the Additional Loan, each such Additional Loan
shall have added to it such amount as AccuMed shall request in the
aforesaid notice, so long as: (1) the total amount of the Additional Loan
made on the relevant date does not exceed Two Hundred Twenty-Five Thousand
Dollars ($225,000), and (2) said notice sets forth the specific business
uses to which such added amount shall be put, which uses shall be
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reasonably satisfactory to Ampersand in order to obligate Ampersand to loan
such added amount to AccuMed hereunder; and
(vi) prior to the making of each Additional Loan, AccuMed and
Ampersand shall identify on a schedule or schedules to be attached to the
Security Agreement sufficient additional collateral to secure such
Additional Loans in accordance with the terms and conditions of the
Security Agreement."
3. Defined Terms. All capitalized terms not defined herein shall have the
meanings ascribed to them in the Merger Agreement.
4. Continuing Effect of Original Agreement; Effective Date of Changes.
Except for the modifications and amendments specifically set forth herein, the
Merger Agreement shall continue in full force and effect as originally written.
Subject to the provisions of Section 1(c) of this Amendment, the modifications
and amendments set forth herein shall become immediately effective as of the
date first hereinabove set forth.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Illinois, without taking into account
any provisions regarding choice of law.
IN WITNESS WHEREOF, each party has hereto caused this Agreement to be
executed on its behalf by its duly authorized officer as of the date first
hereinabove set forth.
ACCUMED INTERNATIONAL, INC AMPERSAND MEDICAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx,
Chairman of the Board and Chairman of the Board and
Chief Executive Officer Chief Executive Officer
ACCUMED ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, President
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