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EXHIBIT 2.1
AMENDMENT NO. 4 TO THE
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 4 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 May 27, 1997, Amendment No. 2 thereto dated as of August 21,
1997 and Amendment No. 3 thereto dated as of November 25, 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"), PEACH ACQUISITION CORPORATION, a corporation organized and existing
under the laws of the State of Colorado ("Merger Sub") and a direct wholly owned
subsidiary of Parent, and RETIREMENT CARE ASSOCIATES, INC., a corporation
organized and existing under the laws of the State of Colorado (the "Company"),
is made this 3rd day of April, 1998 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 have entered into the
Merger Agreement which provides, upon the terms and subject to the conditions
set forth therein, for the Merger of Merger Sub with and into the Company; and
WHEREAS, the boards of directors of Parent, Merger Sub and the Company
have each determined that it is consistent with and in furtherance of their
respective long-term business strategies and fair to and in the best interests
of their respective stockholders 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 8.03(e) of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"(e) the Memorandum of Understanding (the "MOU") dated as of
November 25, 1997, among Chris Brogdon, Darrell C. Tucker, Julian S.
Daley, Edward E. Lane, Harlan Mathews and the Company and the
plaintiffs on behalf of themselves as well as
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all members of the class in the Retirement Care Associates Securities
Litigation (In re Retirement Care Associates Securities Litigation),
Master File No. 1:97-CV-2458-CC (the "Action"), or another agreement
providing for the settlement in principle of the Action on terms no
less favorable to Parent or the Company than those contained in the
MOU, shall be in full force and effect on and as of the Effective Time,
and no action shall have been taken by any party (other than Parent) to
the MOU or such other agreement to terminate, void or withdraw from, or
amend or otherwise modify in a manner adverse to Parent or the Company,
the MOU or such other agreement."
(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 June 30, 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. Since the date of Amendment No. 3 to the
Merger Agreement, (i) no damage to, or destruction of, the tangible property or
assets of the Company or any of the Company Subsidiaries has occurred, and (ii)
no suit, claim, action, proceeding or investigation has been commenced or, to
the knowledge of the Company, threatened against the Company or any Company
Subsidiary before any Governmental Entity (A) by any party other than a
Governmental Entity and relating to patient care matters or (B) by any
Governmental Entity, which in the case of clauses (i) or (ii), individually or
in the aggregate, could reasonably be expected to have a Company Material
Adverse Effect (other than any Disclosed Item).
(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
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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.
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
COLORADO.
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.
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
Name: Robert D. Woltil
Title: Senior Vice President for Financial
Services and Chief Financial Officer
PEACH ACQUISITION CORPORATION
By: /s/ Robert D. Woltil
Name: Robert D. Woltil
Title: Vice President
RETIREMENT CARE ASSOCIATES, INC.
By: /s/ Christopher F. Brogdon
Name: Christopher F. Brogdon
Title: President and Chief Executive Officer
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