1
EXHIBIT 2.1
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.
2
(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.
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.
2
3
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
3
