Exhibit 10.1
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AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
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THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
made as of this 21st day of November, 2002, among Bioanalytical Systems, Inc.,
an Indiana corporation ("BAS"), PI Acquisition Corp., a Maryland corporation
("MergerCo"), and PharmaKinetics Laboratories, Inc., a Maryland corporation (the
"Company"). All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, BAS, MergerCo and the Company are parties to that certain
Agreement and Plan of Merger dated as of June 20, 2002, as amended by Amendment
No. 1 to Agreement and Plan of Merger dated as of July 24, 2002 (the "Merger
Agreement"); and
WHEREAS, BAS, MergerCo and the Company desire to amend certain portions of
the Merger Agreement pursuant to the terms and conditions of this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
and pursuant to Section 10.11 of the Merger Agreement, the Merger Agreement is
hereby amended by the parties as follows:
1. The "Index of Defined Terms" of the Merger Agreement is hereby amended
by adding the following after the term "PKLB Common":
"PKLB Note ss.9.1(d)(v)"
2. Exhibit 2.3 is hereby amended and restated in its entirety as set forth
on Exhibit 2.3 hereto.
3. Section A. of the Background Information is hereby amended by adding
",other than Parent," after "(x) the holders" and before "of common" in clause
(x) of the second sentence and the last sentence is hereby restated in its
entirety as follows "The holders of shares of PKLB Common (other than Parent),
Class A Preferred and Class B Preferred are sometimes hereinafter collectively
referred to as the 'Shareholders'.".
4. Section 2.2 is hereby amended and restated in its entirety as follows:
ss.2.2 Conversion of PKLB Common. At the Effective Time, by virtue of the
Merger and without any action on the part of MergerCo, the Company or the
holders of any shares of PKLB Common:
(a) Subject to the other provisions of this Section 2.2 and to Section
3.1(k) and (l), other than shares of PKLB Common held by Parent (which
shall be treated as set forth in Section 2.2(c)), each share of PKLB Common
issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive one-twelfth (1/12) of one share of
Parent Common, upon surrender of the Common Certificate (as defined below)
representing such shares of PKLB Common.
(b) All such shares of PKLB Common, when converted as provided in
Section 2.2(a), shall no longer be considered outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
Common Certificate previously evidencing such shares shall thereafter
represent only the right to receive the number of shares of Parent Common
set forth in Section 2.2(a). The holders of Common Certificates (as defined
below) previously evidencing shares of PKLB Common outstanding immediately
prior to the Effective Time shall cease to have any rights with respect to
the PKLB Common, except as otherwise provided herein or by law, and, upon
the surrender of Common Certificates in accordance with Section 3.1, shall
only have the right to receive for their shares of PKLB Common the number
of shares of Parent Common as set forth in Section 2.2(a), without any
interest thereon.
(c) The parties acknowledge that Parent may own shares of PKLB Common
at the Effective Time and they hereby agree that, in such event, any such
shares of PKLB Common held by Parent shall, as of the Effective Time, no
longer be considered outstanding and shall automatically be canceled and
retired and shall cease to exist and shall not entitle Parent to receive
Parent Common or other Merger Consideration. Parent shall not be considered
to be a "Shareholder" of the Company as that term is used in this
Agreement.
5. Section 2.3(a) is hereby amended by deleting the phrase "Six Dollars
($6.00)" and replacing it with "Four Dollars and Eighty Cents ($4.80)".
6. Section 9.1(b)(iii) is hereby amended by deleting the phrase "December
31, 2002" and replacing it with "March 31, 2003".
7. Section 9.1(d) is hereby amended as follows:
a. The "." is deleted from the end of subsection (iii) and ";" is
added in its place.
b. A new section (iv) is added as follows:
"(iv) if any holder of Class A Preferred has delivered written notice
to the Company that such holder intends to exercise or is thereby
exercising its right to convert all or any portion of the Class A Preferred
held by such holder into PKLB Common; or"
c. A new section (v) is added as follows:
"(v) if the registered owners of 100% of the Class B Preferred fail to
deliver written notice to the Company as described in paragraph 5(b) of
that certain Secured Convertible Revolving Note (the "PKLB Note") issued by
the Company to Parent dated as of November 14, 2002, prior to such time as
Parent may elect to exercise the Conversion Rights (as defined in the PKLB
Note) granted to it in the PKLB Note."
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
BIOANALYTICAL SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Ph.D.
Chief Executive Officer
PI ACQUISITION CORP.
By /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Ph.D.
Director
PHARMAKINETICS LABORATORIES, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, XX, Ph.D.
President and Chief Executive Officer
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