EXHIBIT 2.2
EXECUTION COPY
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AMENDMENT NO. 2 TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 2 (this "Amendment") to the AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION, dated as of February 17, 1997, as amended by
Amendment No. 1 thereto dated as of August 21, 1997 (as so amended, the
"MERGER AGREEMENT," capitalized terms used but not otherwise defined herein
are used herein as therein defined), among SUN HEALTHCARE GROUP, INC., a
corporation organized and existing under the laws of the State of Delaware
("PARENT"), NECTARINE ACQUISITION CORPORATION, a corporation organized and
existing under the laws of the State of Nevada ("MERGER SUB") and a direct
wholly owned subsidiary of Parent, and CONTOUR MEDICAL, INC., a corporation
organized and existing under the laws of the State of Nevada (the "COMPANY"),
is made this 25th day of November, 1997 by and among Parent, Merger Sub and
the Company.
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 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. AMENDMENTS TO MERGER AGREEMENT. The Merger Agreement is
hereby amended as follows:
(a) Section 3.01 of the Agreement shall be amended (i) by deleting
the first parenthetical phrase of Section 3.01(a) and adding the following
parenthetical phrase in place thereof: "other than any shares of Company
Common Stock to be cancelled pursuant to Section 3.01(c), any shares of
Company Common Stock to be treated in accordance with Section 3.01(e) and any
Dissenting Shares)"; and (ii) by adding the following new Section 3.01(e)
thereto: "(e) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time and owned by Principal Stockholder
shall remain issued and outstanding; PROVIDED, HOWEVER, that if at the time
the Articles of Merger are filed with the Secretary of State of Nevada either
(i) articles of merger with respect to the RCA Merger have not been filed so
as to cause the RCA Merger to occur immediately after the Merger or (ii)
Parent has not
undertaken to contribute to Principal Stockholder all shares of Company
Capital Stock obtained by Parent pursuant to the Merger, then the Principal
Stockholder Shares shall not be treated in accordance with this Section
3.01(e) but instead shall be treated in accordance with Section 3.01(a)."
(b) Section 9.01(b) of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) by either Parent or the Company, if the Effective Time shall
not have occurred on or before March 31, 1998; PROVIDED, HOWEVER, that the
right to terminate this Agreement under this Section 9.01(b) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement shall have caused, or resulted in, the failure of the Effective
Time to occur on or before such date."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Parent and Merger Sub that: The Company
has all necessary corporate power and authority to execute and deliver this
Amendment, to perform its obligations under the Merger Agreement as amended
hereby and to consummate the transactions contemplated hereby. The execution
and delivery of this Amendment by the Company and the consummation by the
Company 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 the
Company and, assuming the due authorization, execution and delivery by Parent
and Merger Sub, constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company 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
the Company 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 Merger 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.
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SECTION 3. EFFECT ON MERGER AGREEMENT. Except as otherwise
specifically provided herein, the Merger Agreement shall not be amended but
shall remain in full force and effect.
SECTION 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REFERENCE TO CONTRACT OF LAW PRINCIPLES OTHER THAN THOSE DIRECTING
NEW YORK LAW) EXCEPT TO THE EXTENT MANDATORILY GOVERNED BY THE LAWS OF THE
STATE OF NEVADA.
SECTION 5. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
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
NECTARINE ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
CONTOUR MEDICAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Chairman of the Board
