EXHIBIT 2.2
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT No. 1 TO AGREEMENT AND PLAN OF MERGER is made as of
July 21, 2004 (this "Amendment") by and among HRA Holding Corp., a New Jersey
corporation (the "Company"), Hemophilia Health Services, Inc., a Tennessee
corporation ("Parent"), HHS Merger Corp., a New Jersey corporation ("Acquisition
Subsidiary"), Summit Ventures V, L.P. in its capacity as Shareholder
Representative on behalf of the shareholders of the Company, and certain
shareholders of the Company as set forth on the signature pages hereto (the
"Shareholders"), and amends that certain Agreement and Plan of Merger, dated as
of June 4, 2004 (the "Merger Agreement"), by and among the Company, Parent,
Acquisition Subsidiary and the Shareholders. Capitalized terms used herein and
not otherwise defined shall have the meaning ascribed to them in the Merger
Agreement.
WHEREAS, the Company, Parent, Acquisition Subsidiary, the
Shareholders and the Shareholder Representative are all parties to the Merger
Agreement;
WHEREAS, the parties wish to amend the Merger Agreement as provided
herein;
WHEREAS, pursuant to Section 12.03 of the Merger Agreement (i) any
term of the Merger Agreement may be amended and the observance of any term of
the Merger Agreement may be waived by a written instrument signed by the party
against whom such amendment or waiver is sought to be enforced, and (ii) the
Shareholder Representative may amend or waive any term of the Merger Agreement
on behalf of the shareholders of the Company and such amendment shall be binding
and enforceable against the shareholders.
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
1. Amendment to Merger Agreement.
A. Section 9.02(a) of the Merger Agreement is hereby amended by
deleting the word "or" at the end of Section 9.02(a)(i), deleting the period at
the end of Section 9.02(a)(ii) and replacing it with "; or", and adding the
following clause after Section 9.02(a)(ii):
"(iii) any Special Claim, as defined and set forth in the attached
Schedule 1, regardless of whether the matters set forth on Schedule 1 have been
disclosed on any other schedule or exhibit to the Merger Agreement."
B. Section 9.01(c) of the Merger Agreement is hereby deleted in
its entirety and replaced with the following:
"(c) with respect to all other Losses arising under Sections
9.02(a)(i), 9.02(a)(iii) or 9.03(a) of this Agreement, the Claims Period shall
terminate on the earlier of (i)
October 31, 2005 or (ii) the completion by Parent and its independent auditors
of Parent's audited financial statements for its fiscal year ending June 30,
2005."
C. The final sentence of Section 9.04(a) of the Merger Agreement
is hereby deleted in its entirety and replaced with the following:
"Notwithstanding the foregoing, claims for Losses arising under
Sections 3.01, 3.02, 3.03, 4.01, 4.02, 4.03, 4.04, 5.01, 5.02 and 9.02(a)(iii)
shall not be subject to, and shall not count against, the Deductible."
2. Capital Call. As of the date hereof, the Summit Funds hereby
represent that in the event that (i) the Summit Funds are liable for Losses
arising out of or resulting from claims set forth in Section 9.02 of the Merger
Agreement, and (ii) the Indemnification Escrow Amount is insufficient to cover
indemnification resulting from said Losses, each of the Summit Funds has the
authority to call on the capital commitments of its limited partners in order to
fund its portion of the indemnification obligation and the limited partners of
each of the Summit Funds are contractually obligated to fund their pro-rata
percentage of any such capital call.
3. References to the Merger Agreement. All references in the
Merger Agreement to "this Agreement," and to all other words referring to the
Merger Agreement (such as "herein," "hereto," "herewith" and "hereunder"), shall
be deemed to mean and refer to the Merger Agreement, as amended by this
Amendment.
4. Effectiveness of Amendment. This Amendment has been executed,
in accordance with the terms of Section 12.03 of the Merger Agreement, by the
Company, Parent, Acquisition Subsidiary, the Shareholders and the Shareholder
Representative, and shall become effective upon execution.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York (without
reference to the conflicts of law provisions thereof).
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. Entire Agreement. This Amendment, the Merger Agreement, the
Exhibits and Schedules annexed to this Agreement and the Merger Agreement and
the terms and provisions hereof and thereof constitute the entire agreement
among the parties pertaining to the subject matter hereof and thereof and
supersede any and all prior or contemporaneous agreements relating to the
subject matter hereof or thereof. Except as expressly amended hereby, the Merger
Agreement shall remain unchanged and in full force and effect. To the extent any
terms or provisions of this Amendment conflict with those of the Merger
Agreement, the terms and provisions of this Amendment shall control. This
Amendment shall be deemed part of and is hereby incorporated into the Merger
Agreement.
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AMENDMENT AGREEMENT AND PLAN OF MERGER
Counterpart Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement and Plan of Merger to be duly executed by as of the day and year first
above-written.
ACQUISITION SUBSIDIARY:
HHS MERGER CORP.
By: /s/ Thomas W. Bell, Jr.
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Name: Thomas W. Bell, Jr.
Title: Senior Vice President
PARENT:
HEMOPHILIA HEALTH SERVICES, INC.
By: /s/ Thomas W. Bell, Jr.
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Name: Thomas W. Bell, Jr.
Title: Senior Vice President
COMPANY:
HRA HOLDING CORP.
By: /s/ Mark W. Scudiery
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Name: Mark W. Scudiery
Title: President and CEO
SHAREHOLDERS:
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.,
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Robert V. Walsh
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Member
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.,
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Robert V. Walsh
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Member
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Robert V. Walsh
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Member
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SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Joseph F. Trustey
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Member
SUMMIT INVESTORS III, L.P.
By: /s/ Joseph F. Trustey
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Authorized Signatory
SUMMIT SUBORDINATED DEBT FUND II, L.P.
By: Summit Partners SD II, LLC
Its General Partner
By: Stamp Woodsum & Co. IV
Its Managing Member
By: /s/ Joseph F. Trustey
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General Partner
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/s/ Mark W. Scudiery
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Mark W. Scudiery, individually
THE GINA SCUDIERY TRUST
By: /s/ Thomas S. Fodice
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Thomas S. Fodice, Trustee
THE LISA SCUDIERY TRUST
By: /s/ Thomas S. Fodice
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Thomas S. Fodice, Trustee
THE SCUDIERY FAMILY FOUNDATION
By: /s/ Mark Scudiery
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Mark Scudiery, Trustee
THE SCUDIERY FAMILY TRUST
By: /s/ Thomas S. Fodice
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Thomas S. Fodice, Trustee
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/s/ Martin F. Gleason
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Martin F. Gleason, individually
THE NANCY GLEASON TRUST
By: /s/ Anthony Gleason
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Anthony Gleason, Trustee
THE MARY GLEASON TRUST
By: /s/ Anthony Gleason
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Anthony Gleason, Trustee
THE BONNIE GLEASON TRUST
By: /s/ Anthony Gleason
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Anthony Gleason, Trustee
THE GLEASON FAMILY FOUNDATION
By: /s/ Martin F. Gleason
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Martin F. Gleason, Trustee
THE 1998 GLEASON CHARITABLE
REMAINDER UNITRUST
By: /s/ Martin F. Gleason
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Martin F. Gleason, Trustee
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