EXHIBIT 2.3
EXECUTION COPY
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AMENDMENT NO. 1 TO THE
STOCKHOLDERS STOCK OPTION AND PROXY AGREEMENT
THIS AMENDMENT NO. 1 to the STOCKHOLDERS STOCK OPTION AND PROXY
AGREEMENT, dated as of February 17, 1997 (the "AGREEMENT," capitalized terms
used but not otherwise defined herein are used herein as therein defined),
among SUN HEALTHCARE GROUP, INC., a Delaware corporation ("PARENT"), and each
other person and entity listed on the signature pages hereof (each, a
"STOCKHOLDER"), is made this 25th day of November, 1997 by and among Parent
and each Stockholder.
W I T N E S S E T H:
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WHEREAS, Parent, Merger Sub, and the Company desire to amend the
Merger Agreement as provided in Amendment No. 3 thereto dated of even date
herewith; and
WHEREAS, in connection therewith Parent and each Stockholder desire
to amend the Agreement as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
SECTION 1: AMENDMENT TO AGREEMENT. The Agreement is hereby amended
as follows:
(a) Section 1.01 of the Agreement is hereby amended and restated in
its entirety as follows:
"SECTION 1.01. GRANT OF OPTIONS. Each Stockholder hereby grants to
Parent an irrevocable option (each, an "OPTION") to purchase such
Stockholder's Shares at (i) a price per share of Company Common Stock equal
to $10.00 (the "COMMON PURCHASE PRICE"), (ii) a price per share of AA
Preferred equal to $10.00 ( the "AA PURCHASE PRICE"), and (iii) a price per
share of F Preferred equal to $9.00 (the "F PURCHASE PRICE" and, together
with the Common Purchase Price and the AA Purchase Price, the "PURCHASE
PRICE"). Each Option shall expire if (i) such Option is not exercised prior
to the close of business on the 14th day following termination of
the Merger Agreement, or (ii) if the Merger Agreement is terminated pursuant
to Section 9.01(c) thereof or terminated or terminable pursuant to Section
9.01(h)."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, hereby represents and warrants to
Parent that: Such Stockholder has all necessary power and authority
(corporate or otherwise) to execute and deliver this Amendment, to perform
its obligations under the Agreement as amended hereby and to consummate the
transactions contemplated hereby. The execution and delivery of this
Amendment by such Stockholder and the consummation by such Stockholder of the
transactions contemplated by the Agreement as amended hereby have been duly
and validly authorized by all necessary action (corporate or otherwise) on
the part of such Stockholder. This Amendment has been duly executed and
delivered by such Stockholder and, assuming the due authorization, execution
and delivery by Parent, constitutes the legal, valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with
its terms.
(b) REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.
Parent and Merger Sub hereby jointly and severally represent and warrant to
each Stockholder that: Parent and Merger Sub have all necessary corporate
power and authority to execute and deliver this Amendment, to perform their
respective obligations under the Agreement as amended hereby and to
consummate the transactions contemplated hereby. The execution and delivery
of this Amendment by Parent and Merger Sub and the consummation by Parent and
Merger Sub of the transactions contemplated by the Merger Agreement as
amended hereby have been duly and validly authorized by all necessary
corporate action (other than stockholder approval as described in the Merger
Agreement). This Amendment has been duly executed and delivered by Parent
and Merger Sub and, assuming the due authorization, execution and delivery by
the Company, constitutes the legal, valid and binding obligation of Parent
and Merger Sub, enforceable against Parent and Merger Sub in accordance with
its terms.
SECTION 3. EFFECT ON AGREEMENT. Except as otherwise specifically
provided herein, the Agreement shall not be amended but shall remain in full
force and effect.
SECTION 4. COUNTERPARTS. This Amendment may be signed in one or
more counterparts, each of which shall be an original but all of which, taken
together, shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above.
SUN HEALTHCARE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President for Financial
Services and Chief Financial Officer
STOCKHOLDERS
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
WINTER HAVEN HOMES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
