Exhibit 10.1


 


AMENDMENT NO. 1 TO

TENDER AND SUPPORT AGREEMENT


 


This
AMENDMENT NO. 1 TO TENDER AND SUPPORT AGREEMENT, dated as of September 15, 2010
(this “Amendment”), is made by and among MOUNTAIN ACQUISITION CORP., a
Delaware corporation (“Parent”), MOUNTAIN MERGER SUB CORP., a Delaware
corporation and a direct, wholly-owned Subsidiary of Parent (“Merger Sub”),
HEALTH GRADES, INC., a Delaware corporation (the “Company”), and
[Executive Name] (“Stockholder”). 
Each of Parent, Merger Sub, the Company and Stockholder are referred to
herein as a “Party” and together as “Parties.”


 


RECITALS


 


WHEREAS, the Company has entered into the Agreement and
Plan of Merger, dated as of July 27, 2010 and amended as of August 9, 2010 and
as of September 9, 2010 (as amended, the “Merger Agreement”), with
Parent, Merger Sub and Mountain Acquisition Holdings, LLC, a Delaware limited
liability company;


 


WHEREAS, in connection with the Merger Agreement, the
Parties hereto entered into that certain Tender and Support Agreement, dated as
of July 27, 2010;


 


WHEREAS, pursuant to the Merger Agreement, Merger Sub has
made a cash tender offer (the “Offer”) to acquire all of the issued and
outstanding shares of common stock, par value $0.001 per share, of the Company
at a price of $8.20 per share, net to the seller in cash, upon the terms and
subject to the conditions of the Merger Agreement and the Offer;


 


WHEREAS, the Merger Agreement was amended on September 9,
2010 to extend the Offer in order to provide the Company, Parent, Merger Sub and
the Company’s stockholders with additional time to continue to evaluate their
alternatives and potential actions in light of the ruling issued by the
Delaware Court of Chancery on September 3, 2010 in the action styled In re Health Grades, Inc. Shareholders Litigation (the “Delaware Litigation”) and,
during this extension period, the Company, Parent and Merger Sub have
negotiated a proposed memorandum of understanding to settle the Delaware
Litigation (the “MOU”);


 


WHEREAS, pursuant to the terms of the MOU, the Parties
desire to amend that certain Tender and Support Agreement, dated as of July 27,
2010 (the “Support Agreement”), by and among Parent, Merger Sub, the
Company and Stockholder, as provided in this Amendment;


 


WHEREAS, pursuant to Section 13(k) of the Support
Agreement, the Support Agreement may be amended by an instrument in writing
signed by each of the Parties; and


 


WHEREAS, the respective boards of directors of Parent,
Merger Sub and the Company have authorized and approved the execution and
delivery of this Amendment.


 

















 


AGREEMENT


 


NOW
THEREFORE, in consideration of the foregoing and intending to be legally bound
hereby, the Parties hereby agree as follows:


 


1.             Defined Terms. Capitalized terms used
herein, including in the preamble and recitals hereto, and not otherwise
defined herein or otherwise amended hereby shall have the meanings ascribed to
such terms in the Support Agreement.


 


2.             Amendment to the Preamble of the Support Agreement. The second sentence of the Preamble of the Support Agreement is hereby
amended and restated in its entirety to read as follows:


 


“The Company shall only be
a party to this Agreement for purposes of Section 4(e)-(j), Section 9(c)-(d) and
Section 13 of this Agreement.”


 


3.             Amendment to Section 9 of the Support Agreement.


 


(a)           Section 9(c) of the Support Agreement is hereby amended and restated in
its entirety to read as follows:


 


“(c)         Sections
9(d), 10 and 13(e) hereof shall survive the termination of this Agreement.”


 


(b)           Section 9 of the Support Agreement is hereby amended by adding,
immediately after Section 9(c), the following:


 


“(d)         Commitment
to Support a Superior Proposal.  Each of the Company and the Stockholder
agrees that if the Company validly terminates the Merger Agreement pursuant to
Section 9.1(c)(ii) thereof, the Company and Stockholder will promptly enter
into an agreement that is substantially comparable in form and substance to
this Agreement with the other parties to the Alternative Acquisition Agreement.”


 


4.             Effective Date of this Amendment.
This Amendment shall, upon execution and delivery hereof by the Parties hereto,
be deemed in full force and effect as of the date hereof.


 


5.             Miscellaneous.


 


(a)           This Amendment shall be construed, performed and enforced in accordance
with the Laws of the State of Delaware without giving effect to its principles
or rules of conflict of Laws to the extent such principles or rules would
require or permit the application of the Laws of another jurisdiction.


 


(b)           Except as expressly amended hereby, the Support Agreement and all other
documents, agreements and instruments relating thereto are and shall remain
unmodified and in full force and effect and are hereby ratified and confirmed.


 


2

















 


(c)           The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any party under the Support Agreement, nor, except as expressly
provided herein, constitute a waiver or amendment of any other provision of the
Support Agreement.


 


(d)           This Amendment may be executed by facsimile and in counterparts, and by
the different Parties in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.


 


(e)           The headings contained in this Amendment are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Amendment.


 


[Remainder of this page intentionally left blank]


 


3

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.


 


 


	
   

  	
  MOUNTAIN
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MOUNTAIN
  MERGER SUB CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Signature Page to Amendment
No. 1 to Tender and Support Agreement — [Executive Name]]


 

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.


 


 


	
   

  	
  HEALTH
  GRADES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  [Name:

  	
  Kerry
  R. Hicks

  
	
   

  	
  Title:

  	
  Chairman
  & Chief Executive Officer]

  
	
   

  	
   

  
	
   

  	
  [or]

  
	
   

  	
   

  
	
   

  	
  [Name:

  	
  Allen
  Dodge

  
	
   

  	
  Title:

  	
  Executive
  Vice President & Chief Financial Officer]

  



 


[Signature Page to Amendment
No. 1 to Tender and Support Agreement — [Executive Name]]


 

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.


 


 


	
   

  	
  [EXECUTIVE
  NAME], in his individual capacity

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Executive
  Name]

  



 


[Signature Page to Amendment
No. 1 to Tender and Support Agreement — [Executive Name]]