EXHIBIT 2.2
AMENDMENT NO. 3 TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 3 (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 and Amendment No. 2
thereto dated as of November 25, 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 3rd day of April, 1998 by and among Parent, Merger
Sub and the Company.
W I T N E S S E T H:
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 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 June 30, 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.
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.
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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.
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
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President for Financial
Services and Chief Financial Officer
NECTARINE ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CONTOUR MEDICAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Chairman of the Board
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