1
EXHIBIT 2.2
EXECUTION COPY
AMENDMENT NO. 1 TO THE
STOCKHOLDERS STOCK OPTION AND PROXY AGREEMENT
THIS AMENDMENT NO. 1 to the STOCKHOLDERS STOCK OPTION AND PROXY
AGREEMENT, dated as of February 17, 1997 (the "AGREEMENT," capitalized terms
used but not otherwise defined herein are used herein as therein defined), among
SUN HEALTHCARE GROUP, INC., a Delaware corporation ("PARENT"), and RETIREMENT
CARE ASSOCIATES, INC., a Colorado corporation, ("STOCKHOLDER"), is made as of
this 25th day of November, 1997 by and among Parent and each Stockholder.
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 in Amendment No. 2 thereto dated of even date herewith;
and
WHEREAS, in connection therewith Parent and Stockholder desire to amend
the 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: AMENDMENT TO AGREEMENT. The Agreement is hereby amended
as follows:
(a) Section 1.01 of the Agreement is hereby amended by (i) replacing
the phrase "120th" with the phrase "14th" therein and (ii) adding the following
phrase at the end thereof: "or terminated or terminable pursuant to Section
9.01(h) thereof."
(b) The following is hereby inserted as a new Article V thereto and the
succeeding Articles and Section are hereby appropriately renumbered:
ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. SHELF REGISTRATION. (a) In the event
that Parent pays for the Shares being purchased by delivery of
shares of Parent Common Stock, Parent shall, within three
10
2
months following the Closing, file with the Securities and
Exchange Commission (the "COMMISSION") a shelf registration
statement on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
Commission (a "SHELF REGISTRATION STATEMENT"), relating to the
resale of the Parent Shares by the Stockholder from time to
time in accordance with the methods of distribution set forth
in such Shelf Registration Statement and shall use its best
efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act as soon as
practicable thereafter; PROVIDED, HOWEVER, that Stockholder
shall not be entitled to have the Parent Shares held by it
covered by such Shelf Registration Statement unless
Stockholder is in compliance with Section 5.02(f) hereof.
(b) Parent shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order
to permit the prospectus forming part thereof to be usable by
the Stockholders until the earliest to occur of the following:
(A) the two year anniversary of the Closing; (B) the earliest
time at which all the Parent Shares covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement; and (C) the earliest time at which, in
the written opinion of independent counsel to Parent, all
outstanding Parent Shares held by persons that are not
affiliates of Parent may be resold without registration under
the Securities Act pursuant to Rule 144(k) under the
Securities Act or any successor provision thereto (in any such
case, such period being called the "EFFECTIVENESS PERIOD").
Parent shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the
requisite period if Parent voluntarily takes any action that
would result in Stockholders of Parent Shares covered thereby
not being able to offer and sell any such Parent Shares during
that period, unless (i) such action is required by applicable
law, (ii) the continued effectiveness of the Shelf
Registration Statement would require Parent to disclose a
material financing, acquisition or other corporate
transaction, and the Board of Directors shall have determined
in good faith that such disclosure is not in the best
interests of Parent and its stockholders, or (iii) the Board
of Directors shall have determined in good faith that there is
a valid business purpose for such suspension.
11
3
SECTION 5.02. REGISTRATION PROCEDURES. In connection
with any Shelf Registration Statement, the following
provisions shall apply:
(a) Parent shall take such action as may be necessary
so that (i) any Shelf Registration Statement and any amendment
thereto and any prospectus forming part thereof and any
amendment or supplement thereto (and each report or other
document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and
the Exchange Act, and the respective rules and regulations
thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any
prospectus forming part of any Shelf Registration Statement,
and any amendment or supplement to such prospectus, does not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements, in the light of the circumstances under which they
were made, not misleading.
(b) Parent shall advise the Stockholder:
(i) when a Shelf Registration Statement and
any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement
or any post-effective amendment thereto has become
effective;
(ii) upon the issuance by the Commission of
any stop order suspending effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(iii) upon the receipt by Parent of any
notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(iv) upon the happening of any event that
requires the making of any changes in the Shelf
Registration Statement or the prospectus so that, as
of such date, the Shelf Registration Statement and
12
4
the prospectus do not contain an untrue statement of
a material fact and do not omit to state a material
fact required to be stated therein or necessary to
make the statements therein (in the case of the
prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been
made).
(c) Parent shall, during the Effectiveness Period,
deliver to Stockholder with respect to a Shelf Registration
Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto
as Stockholder may reasonably request; and Parent consents
(except during the continuance of any event described in
Section 5.02(b)(iv)) to the use of the prospectus or any
amendment or supplement thereto by Stockholder in connection
with the offering and sale of the Parent Shares covered by the
prospectus or any amendment or supplement thereto during the
Effectiveness Period.
(d) Prior to any offering of Parent Shares pursuant
to any Shelf Registration Statement, Parent shall register or
qualify or cooperate with the Stockholder and its counsel in
connection with the registration or qualification of such
Parent Shares for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Stockholders
reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in
such jurisdictions of the Parent Shares covered by such Shelf
Registration Statement; PROVIDED, HOWEVER, that in no event
shall Parent be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to so qualify but for
this Section 5.02(d), (ii) file any general consent to service
of process in any jurisdiction where it is not as of the date
hereof then so subject or (iii) subject itself to taxation in
any jurisdiction if it is not so subject.
(e) Upon the occurrence of any event contemplated by
Section 5.02(b)(iv) above, Parent shall promptly prepare a
post-effective amendment to any Shelf Registration Statement
or an amendment or supplement to the related prospectus or
file any other required document so that, as thereafter
delivered to
13
5
purchasers of the Parent Shares included therein, the
prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If Parent notifies the
Stockholder of the occurrence of any event contemplated by
Section 5.02(b)(iv) above, the Stockholder shall suspend the
use of the prospectus until the requisite changes to the
prospectus have been made.
(f) Parent may require Stockholder with respect to a
Shelf Registration Statement to furnish to Parent such
information regarding the Stockholder and the distribution of
Parent Shares held by the Stockholder as may be required by
applicable law or regulation for inclusion in such Shelf
Registration Statement and Parent may exclude from such
registration the Parent Shares of any Stockholder that fails
to furnish such information within a reasonable time after
receiving such request.
(g) Parent will use its best efforts to cause the
Parent Shares to be listed on the New York Stock Exchange or
other stock exchange or trading system on which the Parent
Common Stock primarily trades on or prior to the effective
date of any Shelf Registration Statement hereunder."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby
represents and warrants to Parent that: Stockholder has all necessary power and
authority (corporate or otherwise) to execute and deliver this Amendment, to
perform its obligations under the Agreement as amended hereby and to consummate
the transactions contemplated hereby. The execution and delivery of this
Amendment by Stockholder and the consummation by Stockholder of the transactions
contemplated by the Agreement as amended hereby have been duly and validly
authorized by all necessary action (corporate or otherwise) on the part of
Stockholder. This Amendment has been duly executed and delivered by Stockholder
and, assuming the due authorization, execution and delivery by Parent,
constitutes the legal, valid and binding obligation of Stockholder, enforceable
against Stockholder 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
Stockholder 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 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
14
6
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 AGREEMENT. Except as otherwise specifically
provided herein, the Agreement shall not be amended but shall remain in full
force and effect.
SECTION 4. 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.
15
7
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
SUN HEALTHCARE GROUP, INC.
By: /s/ Robert D. Woltil
-------------------------------------------
Name: Robert D. Woltil
Title: Senior Vice President for Financial
Services and Chief Financial Officer
RETIREMENT CARE ASSOCIATES, INC.
By: /s/ Christopher F. Brogdon
-------------------------------------------
Name: Christopher F. Brogdon
Title: President and Chief Executive Officer
16