Exhibit 2.2
AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is
made and entered into as of October 11, 2002 by and among PCI Holding Corp., a
Delaware corporation ("PCI Holding"), PCI-A Holding Corp., a Delaware
corporation ("PCI-A Holding") and Chemed Corporation, a Delaware corporation
("Seller"). Capitalized terms used herein, unless otherwise defined herein,
shall have the meanings assigned to them in the Original Agreement (as defined
below).
RECITALS
A. PCI Holding and Seller entered into a Stock Purchase Agreement dated as
of May 8, 2002 (the "Original Agreement").
B. Pursuant to Section 12.14 of the Original Agreement, the Original
Agreement may be amended, modified, altered or supplemented by means of a
written instrument executed on behalf of both PCI Holding and the Seller.
C. PCI Holding and the Seller desire to amend the Original Agreement as set
forth below.
AGREEMENT
In consideration of the foregoing premises, the mutual covenants and
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, PCI Holding and Seller agree as follows:
1. Amendment.
1.1 The preamble of the Original Agreement is hereby amended and
restated in its entirety as follows:
"THIS STOCK PURCHASE AGREEMENT ("AGREEMENT") is entered into as
of May 8, 2002, by and between PCI Holding Corp., a Delaware
corporation ("PCI HOLDING"), PCI-A Holding Corp., a Delaware
corporation ("PCI-A HOLDING", and collectively with PCI Holding,
"PURCHASER"), and Chemed Corporation, a Delaware corporation
("SELLER"). Certain capitalized terms used in this Agreement are
defined on EXHIBIT A."
1.2 Section 1.1 of the Original Agreement is hereby amended and
restated in its entirety as follows:
"1.1 SALE AND PURCHASE OF THE ACQUIRED STOCK. At the Closing (as
defined in Section 2.1 hereof), subject to and in accordance
with the terms hereof, (i) Seller shall cause Patient Care,
Inc., a Delaware corporation and wholly-owned subsidiary of
Seller ("Patient Care"), to sell to PCI Holding, and PCI Holding
shall purchase from Patient Care, all of the issued and
outstanding Capital Stock of National Home Care, Inc., a New
York corporation and wholly-owned subsidiary of Patient Care
("NHC"), and (ii) Seller shall sell to PCI-A Holding, and PCI-A
Holding shall purchase from Seller, all of the issued and
outstanding Acquired Stock other than NHC."
1.3 Section 1.2 of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
"1.2 PURCHASE PRICE. The purchase price payable by Purchaser for
the Acquired Stock (the "PURCHASE PRICE") shall be an aggregate
of Seventy Million Dollars ($70,000,000), which shall be payable
by the respective Purchaser entities as set forth in Section 1.3
below and subject to adjustment as set forth herein."
1.4 The first sentence of Section 1.3 of the Original Agreement
shall be amended and restated in its entirety to read as follows:
"The Purchase Price shall be paid at the Closing as follows: (a)
PCI Holding shall pay to Seller an amount equal to $7,000,000,
by wire transfer of immediately available funds to an account
designated by Seller; (b) PCI Holding shall deliver to Seller a
Senior Subordinated Promissory Note in the principal amount of
$12,500,000, in substantially the form attached hereto as
Exhibit D; (c) PCI Holding shall deliver to Seller a Common
Stock Purchase Warrant for the purchase of up to 112,845 shares
of the common stock of PCI Holding, in substantially the form
attached hereto as Exhibit E, (d) PCI-A Holding shall pay to
Seller an amount equal to $45,500,000, by wire transfer of
immediately available funds to an account designated by Seller;
and (e) PCI Holding shall deposit $1,500,000 and PCI-A Holding
shall deposit $3,500,000 (collectively, the "Indemnity Escrow
Amount") with the Escrow Agent to be used to satisfy any
liabilities governed by Section 10.4."
1.5 A new Section 8.7 shall be inserted into the Original Agreement
to read in its entirety as follows:
"8.7 Representations and Warranties of PCI-A Holding. The
representations and warranties set forth in Section 4 shall be
accurate in all material respects as of the Closing Date with
respect to PCI-A Holding."
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1.6 "PCI Holding" shall be substituted for all references to
"Purchaser" in Section 4 and Section 8.1 of the Original Agreement and
references to the representations and warranties of "Purchaser" set forth in
9.1(e) of the Original Agreement shall hereinafter be deemed to refer to the
representations and warranties of PCI Holding; all references to "Purchaser" in
Sections 8.5(a) and 8.5(b) of the Original Agreement shall hereinafter be deemed
to refer to each of PCI Holding and PCI-A Holding; and the rights of Purchaser
contained in Section 10 of the Original Agreement shall apply to PCI Holding and
PCI-A Holding collectively, without affecting anything contained therein,
including, without limitation, the aggregate Threshold Amount, the limitation of
liability contained in Section 10.2(c) or the Tax indemnification obligations
contained in Section 10.3.
1.7 PCI Holding and PCI-A Holding hereby agree that any distribution
of payments to Purchaser pursuant to Section 1.4 of the Original Agreement or
Section 1.9 of this Amendment shall be allocated thirty percent (30%) to PCI
Holding and seventy percent (70%) to PCI-A Holding. PCI Holding and PCI-A
Holding hereby acknowledge and agree that to the extent that any claims
submitted to the Escrow Agent for satisfaction pursuant to Section 10.4 of the
Original Agreement exceed the aggregate Indemnity Escrow Amount, PCI Holding and
PCI-A Holding shall resolve as among themselves the distribution and allocation
of the Indemnity Escrow Amount.
1.8 Section 7.6(k) of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
"7.6(k) audited financial statements for each of the Acquired
Companies for 1999, 2000 and 2001 together with the period
January 1 - June 30, 2002;"
1.9 The parties hereby acknowledge that the matters set forth on the
Priority Care Schedule to the Original Agreement, as amended through the Closing
Date, showing an aggregate exposure of $769,042.77 (the "Priority Care Claim
Amount"), has caused Section 7.10 of the Original Agreement, "Priority Care
Settlement," to not be satisfied to Purchaser's satisfaction as of the Closing
Date. The parties hereby agree that the Priority Care Claim Amount constitutes
an indemnifiable claim pursuant to Section 10.4 of the Original Agreement, and
to the extent the Priority Care Claim Amount is satisfied to Purchaser's
satisfaction on or prior to September 11, 2004 (the "Escrow Release Date"), upon
receipt of a Claims Notice (as defined in the Escrow Agreement) for such amount
under the Escrow Agreement from Purchaser by the Escrow Agent with a copy to
Seller, the Escrow Agent shall promptly release the full amount of the Priority
Care Claim Amount at the time outstanding to Purchaser; provided, that in the
event the Priority Care Claim is not satisfied by the Escrow Release Date, the
parties hereby agree to leave in the Escrow Account sufficient funds to satisfy
the Priority Care Claim pursuant to the provisions of this Section 1.9 until
such time as the parties mutually determine. In the event that at any time there
are insufficient funds available held by Escrow Agent to
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satisfy such Claims Notice, Seller shall immediately forward good funds for the
amount shown on such Claims Notice to Purchaser.
2. Allocation of Purchaser Rights and Responsibilities. PCI Holding and
Seller hereby agree that, until written notice has been provided to Seller by
PCI-Holding, PCI-A Holding shall act as agent and attorney-in-fact for PCI
Holding in connection with any matters arising under or in connection with the
Original Agreement, as amended hereby, including, without limitation, with
respect to waiving any pre-closing covenants contained in Section 5 of the
Original Agreement or any closing conditions contained in Sections 7 of the
Original Agreement.
3. Applicable Law. This Amendment shall be construed in accordance with,
and governed in all respects by, the laws of the State of Delaware (without
giving effect to the principles of conflicts of law thereof).
4. Amendment Limited. Except as provided herein, each of the provisions
of the Original Agreement shall remain in full force and effect following the
execution of this Amendment.
5. Counterparts. This Amendment may be executed in any number of
counterparts (including counterparts executed and delivered by facsimile, which
shall be treated as counterparts executed and delivered manually), all of which
taken together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment has been executed by the parties as
of the date first written above.
PCI HOLDING CORP.
By: /s/ Alison K. Gilligan
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Name: Alison K. Gilligan
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Title: EVP-Secretary
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PCI-A HOLDING CORP.
By: /s/ Alison K. Gilligan
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Name: Alison K. Gilligan
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Title: EVP-Secretary
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CHEMED CORPORATION
By: /s/ Timothy S. O'Toole
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Name: Timothy S. O'Toole
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Title: Executive Vice President & Treasurer
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