Exhibit 2.2
AMENDMENT No. 1 TO
RIGHTS AGREEMENT
THIS AMENDMENT No. 1 (the "Amendment"), dated as of May 5, 1998, is
between NATIONAL SURGERY CENTERS, INC., a Delaware corporation (the "Company"),
and XXXXXX TRUST AND SAVINGS BANK, as Rights Agent (the "Rights Agent").
Recitals
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A. The Company and the Rights Agent are parties to a Rights
Agreement dated as of December 22, 1997 (the "Rights Agreement").
B. HealthSouth Corporation, a Delaware corporation ("Merger
Partner"), Field Acquisition Corporation, a Delaware corporation and a wholly-
owned subsidiary of Merger Partner ("Merger Sub"), and the Company propose to
enter into an Plan and Agreement of Merger dated as of May 5, 1998 (the "Merger
Agreement") pursuant to which the Company will be merged with and into Merger
Sub, with the Merger Sub as the surviving corporation (the "Merger").
C. Pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable to reflect the
foregoing and certain other matters, and the Company and the Rights Agent desire
to evidence such amendment in writing.
Accordingly, the parties agree as follows:
1. Amendment of Section l(a). Section l(a) of the Rights Agreement
is amended by inserting the following at the end of Section l(a):
"In addition, notwithstanding anything in this Rights Agreement to the
contrary neither HealthSouth Corporation, a Delaware corporation ("Merger
Partner"), Field Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of Merger Partner ("Merger Sub"), nor any Affiliate or
Associate of Merger Partner or Merger Sub, shall be deemed to be an
Acquiring Person by virtue of the Agreement and Plan of Merger, to be
entered into as of May 5, 1998, between the Company, Merger Partner and
Merger Sub, as it may be amended or supplemented from time to time in
accordance with its terms (the "Merger Agreement"), or by virtue of any of
the transactions contemplated by the Merger Agreement, including without
limitation, the publication or other announcement of the Merger in
accordance with Section 7.7 of the Merger Agreement.
2. Amendment of Section 3(a). Section 3(a) of the Rights Agreement
is amended by adding the following sentence at the end thereof:
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"Notwithstanding the foregoing or anything in this Rights Agreement to
the contrary, a Distribution Date shall not be deemed to have occurred by
virtue of the execution, consummation or public announcement of the Merger
Agreement or by virtue of any of the transactions contemplated by the
Merger Agreement."
3. Amendment of Section 7(a). Section 7(a) of the Rights Agreement
is amended in its entirety to read as follows:
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions
on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to
the Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-thousandths
(1/l000ths) of a share (or other securities, cash or other assets, as the
case may be) as to which such surrendered Rights are then exercisable, at
or prior to the earliest of (i) the close of business on December 17, 2007
(the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof, (iii) the time at which such
Rights are exchanged pursuant to Section 24 hereof or (iv) immediately
prior to the Effective Time (as defined in the Merger Agreement) of the
Merger contemplated by and in accordance with the terms of the Merger
Agreement (the earliest of (i), (ii), (iii) and (iv) being herein referred
to as the "Expiration Date").
4. Amendment of Section 13. Section 13 of the Rights Agreement is
hereby amended by inserting the following sentence at the end of such Section:
"Notwithstanding the foregoing, this Section 13 shall not apply to the
Merger or as a result of the execution and delivery of the Merger Agreement
or the transactions contemplated thereby."
5. Effectiveness. This Amendment shall be deemed effective as of May
5, 1998, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
6. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such Delaware
applicable to contracts to be made and performed entirely within such Delaware.
This Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
term, provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms,
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provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
* * * * *
EXECUTED as of the date first set forth above.
NATIONAL SURGERY CENTERS, INC.
a Delaware corporation
Attest:
/s/ Xxxxx X. Xxxxxx /s/ E. Xxxxxxx Xxxxx
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Name: Xxxxx X. Xxxxxx Name: E. Xxxxxxx Xxxxx
Title: Secretary Title: President
XXXXXX TRUST AND SAVINGS BANK,
Attest: as Rights Agent
/s/ Xxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
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Name: Xxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title: Trust Officer
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