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EXHIBIT 2.1
EXECUTION COPY
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AMENDMENT NO. 2 TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 2 (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 (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
25th day of November, 1997 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 3.01 of the Agreement shall be amended (i) by deleting the
first parenthetical phrase of Section 3.01(a) and adding the following
parenthetical phrase in place thereof: "other than any shares of Company Common
Stock to be cancelled pursuant to Section 3.01(c), any shares of Company Common
Stock to be treated in accordance with Section 3.01(e) and any Dissenting
Shares)"; and (ii) by adding the following new Section 3.01(e) thereto: "(e)
Each share of Company Common Stock issued and outstanding immediately prior to
the Effective Time and owned by Principal Stockholder shall remain issued and
outstanding; PROVIDED, HOWEVER, that if at the time the Articles of Merger are
filed with the Secretary of State of Nevada either (i) articles of merger with
respect to the RCA Merger have not been filed so as to cause the RCA Merger to
occur immediately after the Merger or (ii) Parent has not undertaken to
contribute to Principal Stockholder all shares of Company Capital Stock obtained
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by Parent pursuant to the Merger, then the Principal Stockholder Shares shall
not be treated in accordance with this Section 3.01(e) but instead shall be
treated in accordance with Section 3.01(a)."
(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 March 31,
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.
(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.
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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
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