FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.1
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT, dated as of February 9, 2009, to the Agreement and Plan of Merger dated
November 13, 2008 (the “Merger Agreement”), is among ALLIANCE HEALTHCARD, INC., a
Georgia corporation (“ALHC”), ACCESS/ALLIANCE ACQUISITION CORP., an Oklahoma corporation and
wholly-owned special purpose subsidiary of ALHC (“Acquisition Corp” and with ALHC, the “Company”),
and ACCESS PLANS USA, INC., an Oklahoma corporation (“AUSA”). Collectively, ALHC, Acquisition Corp
and AUSA are referred to as the “Parties” or individually the “Party.” Capitalized terms used
herein shall have the meaning ascribed to such term in the Merger Agreement.
W I T N E S S E T H:
1. ALHC, Acquisition Corp, and AUSA are parties to the Merger Agreement.
2. Section 1.6.1.1 of the Merger Agreement provides for the conversion of AUSA Shares at the
Closing into a number of shares of ALHC Common Stock.
3. The parties to this First Amendment are willing to amend the formula for determining the
number of shares of ALHC Common Stock to be issued and delivered in exchange for the AUSA Shares at
the Closing pursuant to Section 1.6.1.1 of the Merger Agreement.
4. Section 7.1 of the Merger Agreement provides for a termination date of February 28, 2009.
5. The parties to this First Amendment are willing to extend the termination date as provided
in this First Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
herein set forth, the Parties have agreed, and hereby agree, as follows:
1. Effect on Capital Stock. Section 1.6.1.1 of the Merger Agreement is hereby amended
in its entirety to read as follows:
1.6.1.1 Conversion of Securities. (i) Subject to Section 1.6.1.6, at Closing
all outstanding AUSA Shares (which shall exclude any AUSA Shares cancelled pursuant
to Section 1.6.1.2) shall be converted into the right to receive in the aggregate
6,850,000 shares of ALHC Common Stock. If at Closing there is no change in the
number of AUSA shares outstanding from the number outstanding at the date of this
agreement of 20,269,145, then this converts into the right to receive 0.337952094181
of one fully paid and non-assessable share of ALHC Common Stock for each of the AUSA
Shares, subject to the adjustment provided in paragraph (ii) below.
(ii) The 6,850,000 shares of ALHC Common Stock (excluding any AUSA Shares cancelled
pursuant to Section 1.6.1.2) into which the outstanding AUSA Shares shall be
converted pursuant to paragraph (i) of this Section 1.6.1.1 shall be reduced by any
net direct divesture cost attributable to the divesture of the Access HealthSource,
Inc.,
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currently known and referenced as the Regional Healthcare Division of AUSA on
the basis of one share of ALHC Common Stock for each two dollars ($2.00) of the Net
Divesture Cost (as defined below). For purposes of this Agreement, “Net Divesture
Cost” shall mean
(A) the sum of the cash expenditures paid or to be incurred by AUSA and
Access HealthSource, Inc., inclusive of any amounts paid or payable by
Access HealthSource, Inc. to Xxxxx Hospitals Limited pursuant to the
Compromise Settlement Agreement, Release of All Claims and Indemnity
Agreement related to Statement of Claim filed June 2, 2008, Case No. 70 193Y
00353 08 (the “Xxxxx Liability”), directly associated with the sale or
disposition of Access HealthSource, Inc. that in the aggregate exceed
(B) the proceeds received by AUSA in conjunction with the sale or
disposition of Access HealthSource, Inc. (the “Access HealthSource
Divesture”).
(iii) The fraction of one share of ALHC Common Stock into which each of the AUSA
Shares is converted pursuant to paragraph (i) of this Section 1.6.1 (or
Section 1.7.1) is referred to herein as the “Exchange Ratio.” For purposes of this
Section 1.6.1 and Section 1.7.1, all numbers shall be rounded to the next whole
share and those shares of ALHC Common Stock issued pursuant to this paragraph
(iii) of this Section 1.6.1.1 shall be in addition to the number of shares of ALHC
Common Stock issued pursuant to paragraph (i) of this Section 1.6.1.1.
2. Termination. Section 7.1 of the Merger Agreement is hereby amended in its entirety
to read as follows:
This Agreement may be terminated at any time prior to the Closing as follows:
(ii) “by either ALHC, on the one hand, or AUSA, on the other hand, if the
Merger shall not have been consummated by April 1, 2009 (provided that the
right to terminate this Agreement under this subparagraph (ii) of this
Section 7.1 shall not be available to any Party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in the
failure of the Merger to be consummated on or before such date),
notwithstanding any other provision of this Section 7.1; or
3. Full Force and Effect. Except as amended hereby, the Merger Agreement shall remain
in full force and effect.
4. Counterparts. This First Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall be deemed to be a
single agreement.
{Signature Page Follows}
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IN WITNESS WHEREOF, ALHC, Acquisition Corp, and AUSA have caused this First Amendment to be
executed as of the date first written above.
“ALHC” | ALLIANCE HEALTHCARD, INC. | |||||
By | /s/ | |||||
Xxxxx Xxxxxx, Chief Executive Officer | ||||||
“Acquisition Corp” | ACCESS/ALLIANCE ACQUISITION CORP | |||||
By | /s/ | |||||
Xxxxx Xxxxxx, Chief Executive Officer | ||||||
“AUSA” | ACCESS PLANS USA, INC. | |||||
By | /s/ | |||||
Xxx X. Xxxxxx, Interim President and C.E.O. |
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