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EXHIBIT 2.1
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 1 (this "Amendment") to the AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION, dated as of February 17, 1997 (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
21st day of August, 1997 by and among parent, Merger Sub and the Company.
WITNESSETH:
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) Article VI of the Merger Agreement is hereby amended by adding
the following Section 6.10 immediately following Section 6.09 thereof:
Section 6.10 Consent of Accountants; Work Papers. (a) The Company
shall use its best efforts to cause Coopers & Lybrand L.L.P. to
consent to the use in the Registration Statement and the Proxy Statement of
their report on he consolidated financial statements of the Company
appearing in the Company 1996 10-K, provided, however, that the Company
shall not be required under this Section 6.10(a) to pay any amounts claimed
by Coopers & Lybrand L.L.P. which, in the Company's good faith exercise of
its reasonable judgment, are subject valid claims of set-off or other
defenses or counterclaims.
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(b) The Company shall use its best efforts to cause Coopers &
Lybrand L.L.P. to make available to Arthur Andersen LLP copies of all
materials in Coopers & Lybrand L.L.P.'s possession relating to Coopers &
Lybrand L.L.P.'s audit of the Company's financial statements for the year
ended June 30, 1997, including all work papers, computer files and other
materials prepared by Coopers & Lybrand L.L.P. in connection with such
audit; provided, however, that the Company shall not be required under this
Section 6.10(b) to pay any amounts claimed by Coopers & Lybrand L.L.P.
which, in the Company's good faith exercise of its reasonable judgment, are
subject to valid claims of set-off or other defenses or counterclaims."
(b) 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 November 30, 1997; provided, however, that
in the event that the Effective Time has not occurred by such time (i) due
to the failure to satisfy the condition specified in Section 8.01(b), and
as of such time (A) the condition specified in Section 8.01(a) shall have
been satisfied, (B) neither the Company Stockholders' Meeting nor, if
applicable, the parent Stockholders' Meeting, shall have been held, and (C)
neither Parent nor the Company shall be entitled to terminate this
Agreement under any other paragraph of this Section 9.01, then such date
shall be extended, without any action on the part of any party hereto,
until December 31, 1997; or (ii) solely due to the failure to satisfy the
condition specified in Section 8.01(d) or 8.01(e), then such date may be
extended, at the option of parent, until December 31, 1997; and provided,
further, 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 transaction 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.
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(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 Agreements 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 the 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 the 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.
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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/ Robert D. Woltil
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Name: Robert D. Woltil
Title: Senior Vice President for Financial
Services and Chief Financial Officer
NECTARINE ACQUISITION CORPORATION
By:/s/ Robert D. Woltil
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Name: Robert D. Woltil
Title: Vice President
CONTOUR MEDICAL, INC.
By: /s/ Christopher F. Brogdon
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Name: Christopher F. Brogdon
Title: Chairman of the Board