Amendment No. 1 to Agreement and Plan of Merger
This Amendment No. 1 dated as of July 24, 1997 to Agreement and Plan of
Merger dated as of February 10, 1997 (the "Merger Agreement"), among MEDIQ
INCORPORATED (the "Acquiror"), PRN MERGER CORPORATION ("Sub") and UNIVERSAL
HOSPITAL SERVICES, INC. ("the Company").
WHEREAS, the Acquiror, Sub and the Company desire to amend the Merger
Agreement upon the terms set forth below in order to provide additional time to
resolve or defend against any objections of the Federal Trade Commission ("FTC")
to the proposed transaction.
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Section 8.1(c) of the Merger Agreement is hereby amended to read in its
entirety as follows:
"(c) by either the Acquiror or the Company if the Merger shall not
have been consummated on or before October 31, 1997 (unless the failure to
consummate the Merger by such date shall be due to the action or failure to
act of the party seeking to terminate this Agreement in breach of such
party's obligations under this Agreement); or"
2. The following new Section 8.3 is hereby added to the Merger Agreement
immediately after Section 8.2:
"Section 8.3. Additional Termination Right. Notwithstanding anything
to the contrary in this Agreement, in the event that the FTC shall file
with any United States District Court (the "District Court") a motion for a
preliminary injunction with respect to the Merger (i) the Acquiror and the
Company shall each have the right to terminate this Agreement, by written
notice to the other, at any time during the period commencing upon the
issuance by the District Court of a preliminary injunction pursuant to such
motion and ending at 11:59 p.m. (Eastern time) on the fifth business day
following the day on which the written ruling of the District Court with
respect to such preliminary injunction is first filed with the Clerk of
Court, and (ii) neither the Acquiror nor the Company shall be under any
obligation to effect the Merger prior to the expiration of the termination
right set forth in clause (i) of this Section 8.3."
3. Except as amended hereby (and in the waiver letters of the parties dated
March 28, 1997, July 11, 1997 and July 24, 1997), the Merger Agreement shall
remain in full force and effect in accordance with its terms.
WHEREAS, the Acquiror, Sub and Company have caused this Amendment to be
signed by the respective officers thereunto duly authorized as of the date first
above written.
MEDIQ INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
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UNIVERSAL HOSPITAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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PRN MERGER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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