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 Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxx, Xxxxxx X. Xxxx, Xxxxxx Xxxxxxx and the Company and the
plaintiffs on behalf of themselves as well as 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
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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 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.
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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/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President for Financial
Services and Chief Financial Officer
PEACH ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
RETIREMENT CARE ASSOCIATES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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