Exhibit 2.9
FIRST AMENDMENT TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this “Amendment”) is effective as of February 17, 2021, by and among UpHealth Holdings, Inc., a Delaware corporation (“Holdings”), Thrasys, Inc., a California corporation (“Company”), and Shareholder Representative Services LLC, a Colorado limited liability company solely in its capacity as the representative of the Shareholders (“Shareholder Representative”). Certain capitalized terms used in this Amendment and not otherwise defined shall have the meaning ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
WHEREAS, effective November 20, 2020, Company became a wholly-owned subsidiary of Holdings pursuant to the closing of the transactions contemplated by that certain Agreement and Plan of Merger by and among Holdings, Company, Shareholder Representative, and UpHealth Thrasys Merger Sub, Inc., a California corporation dated as of November 3, 2020, as subsequently amended by that certain Amended and Restated Agreement and Plan of Merger dated as of November 20, 2020 (the “Merger Agreement”);
WHEREAS, the Merger Agreement includes provisions governing the rights and obligations of the parties thereto with respect to control of Company’s operations prior to the SPAC Merger Closing; and
WHEREAS, the parties hereto desire to amend the Merger Agreement in accordance with Section 10.10 thereof to remove such control provisions.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and incorporating the recitals set forth above, the parties hereto hereby agree as follows:
1. Amendments.
| | a. | The following text is deleted from Section 5.1 of the Merger Agreement: |
“Notwithstanding the foregoing, Parent and Merger Sub acknowledge and agree that (i) nothing contained in this Agreement shall be construed to give Parent or Merger Sub, directly or indirectly, rights to control or direct the Company’s operations prior to the SPAC Merger Closing, (ii) prior to the SPAC Merger Closing, the current directors and officers of the Company shall exercise complete control and supervision of its operations, and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall be required with respect to any matter to the extent the requirement of such consent would, upon the advice of the Company’s counsel, violate any applicable Law, be inconsistent with the requirements of any Governmental Authority, or violate any contractual obligation to which the Company is a party.”
1
