exh10-1.htm


     

      
        

      

    


    Exhibit
10.1

    


    EXECUTION
COPY

    


    AMENDMENT
TO AGREEMENT AND PLAN OF MERGER

    


    THIS
AMENDMENT (this “Amendment”) to the
Agreement and Plan of Merger, dated March 13, 2008, by and among Allion
Healthcare, Inc., Biomed Healthcare, Inc., Biomed America, Inc. and Parallex LLC
(the “Agreement”) is made
and entered into this 20th day of April, 2009, by and among Allion Healthcare,
Inc., a Delaware corporation (“Parent”), Biomed
Healthcare, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
(“Merger Sub”),
Parallex LLC, a Delaware limited liability company (the “Owner”), Raymond A.
Mirra, Jr., in his capacity as the Stockholders’ Representative (the “Stockholders’
Representative”), and Raymond A. Mirra, Jr., in his capacity as an
individual (“Mirra”).

    


    W
I T N E S S E T H:

    


    WHEREAS,
as a condition and inducement to Parent’s and Merger Sub's willingness to enter
into this Amendment, each of Jennifer Hoefner and Peter Sartini have entered
into Restrictive Covenant Agreements, dated April 3, 2009, with Merger Sub and
certain other subsidiaries of Parent (copies of which are attached hereto as
Exhibit 1 through Exhibit 2); and

    


    WHEREAS,
Parent, Merger Sub and the Owner desire to clarify and amend certain provisions
of the Agreement, as hereinafter more particularly set forth, and the
Stockholders’ Representative and Mirra desire to acknowledge and agree to be
bound by such clarifications and amendments;

    


               NOW,
THEREFORE, for and in consideration of the premises, the mutual covenants
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, Parent, Merger Sub,
the Owner, the Stockholders’ Representative and Mirra agree as
follows:

    


    AGREEMENT

    


    1. Escrow
Release.  Upon the execution of this Amendment by the Owner,
the Stockholders’ Representative and Mirra, and delivery of such executed
Amendment to Parent and Merger Sub, Parent and the Stockholders’ Representative
will execute a joint written instruction to the Escrow Agent (a copy of which is
attached hereto as Exhibit
3), advising the Escrow Agent to disburse the balance of the Escrow Funds
(as defined in the Escrow Agreement) to the Stockholders in accordance with the
Stockholder Allocation Schedule (as defined in the Escrow Agreement) as
currently in effect.  Parent and the Stockholders’ Representative
agree to deliver the joint written instruction to the Escrow Agent promptly
following its execution.

    


    2. Indemnification.  Notwithstanding
anything in the Agreement to the contrary, any payments required to be made
pursuant to Section 12.02 of the Agreement shall be made by the Owner in cash in
an amount equal to any Losses (subject to the limitations set forth in Sections
12.05(b) and 12.05(c) of the Agreement), of which the Owner may choose to pay up
to fifty-five percent (55%) in Parent Common Stock, with the monetary value of
such Parent Common Stock being determined based on the ten (10)-day average of
the closing price of Parent’s Common Stock at the time of payment of the
indemnity claim.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    3. Mirra Indemnification
Agreement.  Mirra acknowledges and agrees that the revisions
set forth in this Amendment with respect to indemnification under the Agreement
shall also apply to Mirra’s indemnification obligations under the
Indemnification Agreement, dated March 13, 2008, by and among Parent, Merger Sub
and Mirra.

    


    MISCELLANEOUS

    


    1. Definitions.  All capitalized terms
used but not otherwise defined in this Amendment have the meanings ascribed to
them in the Agreement.

    


    2. Effect.  Except
as amended hereby, the Agreement shall remain in full force and effect. It is
agreed by the parties that all references to the Agreement hereafter made by
them in any document or instrument shall be deemed to refer to the Agreement as
amended hereby.

    


    3. Governing
Law.  This Amendment shall be governed by and construed and
enforced in accordance with the Laws of the State of Delaware, without regard to
any applicable conflicts of Laws.

    


    4.           Counterparts.  This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and each of the parties
hereto may execute this Amendment by signing any of such counterparts. This
Amendment may also be executed and delivered by facsimile signature in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.

    


    (Signatures
on Following Page)

    



    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, each of the
undersigned has caused this Amendment to be executed by an authorized officer as
of the date first above written.

    


    
      	
               
      

            	 


    

    
      	
              PARENT:

            	
              ALLION
      HEALTHCARE, INC.

            


    

    


    


    


    By:      /s/ Michael P.
Moran                                                                

    Name:  Michael P.
Moran                                                                         

                                    Title:  
Chief Executive
Officer and President

    


    


    


    
      	
              MERGER
      SUB:

            	
              BIOMED
      HEALTHCARE, INC.

            


    

    


    


    


    By:       /s/ Michael P.
Moran                                                                

    Name:  Michael P.
Moran                                                                               

                           
Title:   Chief Executive Officer and
President

    


    


    


    
      	
              OWNER:

            	
              PARALLEX
      LLC

            


    

    


    


    


    By:        /s/ Raymond A. Mirra,
Jr.                                                                

    Name :  Raymond A. Mirra,
Jr.

    Title:     President

    


    


    
      	
              STOCKHOLDERS’
      REPRESENTATIVE:

            	
              RAYMOND
      A. MIRRA, JR.

            


    

    


    


    


      /s/ Raymond A.
Mirra,
Jr.                                                                           

    


    


    


    
      	
              MIRRA:

            	
              RAYMOND
      A. MIRRA, JR.

            


    

    


    


    


       /s/
Raymond A. Mirra,
Jr.                                                                           

    


    


    


    (Signature
page to First Amendment to Agreement and Plan of
Merger)