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EXHIBIT 2.1
CONSENT AND AGREEMENT
This Consent and Agreement, dated as of January 19, 1998 (this
"Agreement"), by and among MedPartners, Inc., a Delaware corporation
("MedPartners"), ASG Merger Corporation, a Delaware corporation (the
"Subsidiary"), and America Service Group Inc., a Delaware corporation ("ASG").
W I T N E S S E T H
WHEREAS, MedPartners, the Subsidiary and ASG have entered into that
certain Plan and Agreement of Merger, made and entered into as of the 1st day of
October 1997 (the "Plan of Merger");
WHEREAS, ASG is obligated pursuant to Section 7.3 to take all steps
necessary in accordance with its Amended and Restated Certificate of
Incorporation and Bylaws to call, give notice of, convene and hold meetings of
its stockholders (the "Stockholder Meeting") as soon as practicable after the
effectiveness of the Registration Statement (as defined in Section 7.4 of the
Plan of Merger), for the purpose of approving and adopting the Plan of Merger
and the transactions contemplated thereby and for such other purposes as may be
necessary:
WHEREAS, ASG has called the Stockholder Meeting for January 20, 1998;
WHEREAS, MedPartners, the Subsidiary and ASG have concluded that it is
necessary to adjourn the Stockholder Meeting permanently pending the resolution
of certain matters relating to the Plan of Merger;
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and agreements contained herein, the parties to this Agreement do
hereby agree as follows:
1. Adjournment of Meeting. MedPartners and the Subsidiary acknowledge
and agree that ASG shall convene the Stockholder Meeting scheduled
for 10:00 am Central Standard Time on January 20, 1998, and shall
vote the proxies obtained by management in favor of the Merger in
favor of a permanent adjournment of the Stockholder Meeting.
MedPartners and the Subsidiary agree that ASG's adjournment of the
Stockholder Meeting shall not constitute a breach of ASG's
performance of any of its obligations pursuant to the Plan of
Merger, including, without limitation, its covenant pursuant to
Section 7.3 of the Plan of Merger.
2. Announcement of Adjournment. MedPartners and the Subsidiary
consent to the issuance by ASG of a press release announcing the
adjournment of the
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Special Meeting, which press release shall be in the form
attached as Exhibit 1 to this Amendment. MedPartners and the
Subsidiary further consent to the issuance of such press release
immediately following the action taken by the stockholders
to adjourn the Special Meeting as contemplated by Section 1.
3. Amendment of Section 8.1(e). Section 8.1(e) of the Plan of Merger
is hereby amended by the deletion of the entirety of the text of
such section and by the insertion in lieu thereof of "By ASG, if
the arithmetic average of the closing prices per share of the
MedPartners Common Stock, as reported on the New York Stock
Exchange Composite Tape, during any consecutive thirty
(30)-trading day period prior to the consummation of the Merger is
less than $17.50, and MedPartners has received written notice of
the decision to terminate this Plan of Merger prior to the
consummation of the Merger".
4. Affirmation of the Plan of Merger. The parties hereby affirm to
one another their respective obligations pursuant to the Plan of
Merger and affirm the Plan of Merger, as previously amended.
5. Representations and Warranties. The parties represent and warrant
to one another that this Amendment has been duly authorized by all
corporate action required to be taken on each of their parts, that
it has been duly executed and delivered and that it constitutes
the legal, valid and binding obligation of each of them, except as
enforcement may be subject to bankruptcy, moratorium and similar
laws and except as the availability of equitable remedies may be
subject to customary limitations.
6. Further Assurances. Each party hereby agrees to perform any
further acts and to execute and deliver any documents, which may
be reasonably necessary to carry out the provisions of this
Amendment.
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IN WITNESS WHEREOF, MedPartners, the Subsidiary and ASG have caused
this Agreement to be executed by their respective duly authorized officers, all
as of the day and year first above written.
MEDPARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
ASG MERGER CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
AMERICA SERVICE GROUP INC.
By: /s/ Xxxxxxx Xxxxxxxx
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3 Xxxxxxx Xxxxxxxx
