EXHIBIT 2.1
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of March 31, 1998, by and among COLUMBIA/HCA HEALTHCARE
CORPORATION, a Delaware corporation ("Columbia"), VH HOLDINGS, INC., a Nevada
corporation ("Holdings"), GALEN HOLDINGS, INC., a Delaware corporation
("Galen"), and EXPRESS SCRIPTS, INC., a Delaware corporation ("Purchaser").
RECITALS:
WHEREAS, the parties hereto have entered into that certain Stock Purchase
Agreement, dated as of February 19, 1998 (the "Original Agreement"); and
WHEREAS, the parties wish to amend the Original Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows.
1. DEFINITIONS.
(a) Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to such terms in the Original Agreement.
(b) As used herein, the following terms shall have the meanings indicated
below, and where appropriate shall include the singular and plural of the term
defined:
"Agreement" shall mean the Original Agreement as amended by this Amendment.
"Amendment" shall mean this First Amendment to Stock Purchase Agreement.
"Original Agreement" shall mean that certain Stock Purchase Agreement,
dated as of February 19, 1998, by and among the parties to this Amendment.
2. AMENDMENT. The Original Agreement is hereby amended in the following
respects:
(a) Schedule 2.2(i) to the Original Agreement is hereby amended by adding
the following corporations to such schedule: MedManagement Holdings, Inc., a
Nevada corporation, and Value Health Holdings, Inc., a Nevada corporation.
(b) Section 3.1(b) of the Original Agreement is hereby deleted and replaced
in its entirety with the following Sections 3.1(b) and (c):
"(b) Holdings is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Nevada. Holdings is a wholly-owned
subsidiary of Columbia.
(c) ▇▇▇▇▇ is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware. ▇▇▇▇▇ is a wholly-owned
subsidiary of Columbia."
Additionally, all references in the Original Agreement to ▇▇▇▇▇ as a Nevada
corporation are changed to reflect that ▇▇▇▇▇ is a Delaware corporation.
(c) Section 9.4(a) of the Original Agreement is hereby deleted and replaced
in its entirety with the following Section 9.4(a):
"(a) LIABILITY THRESHOLDS. Notwithstanding anything in this Article IX to
the contrary, no indemnified Damages with respect to Claims arising out of a
breach of Sellers' representations and warranties (other than Claims arising out
of a breach of the Title Representations, as such term is defined in Section
9.4(c)(i), to which the Liability Threshold shall not apply) shall be payable
pursuant to this Article IX unless and until the aggregate amount of indemnified
Damages asserted against Sellers under this Article IX with respect to such
Claims equals or exceeds $2,600,000 (the "LIABILITY THRESHOLD"). Once the
Liability Threshold for such Claims has been reached, the Indemnitee shall be
entitled to the benefit of the indemnity under this Article IX for such Claims
to the extent of any and all Damages above the Liability Threshold; provided
that the maximum amount of Damages for which Sellers shall be responsible with
respect to Claims arising out of breaches of Sellers' representations and
warranties (including breaches of the Title Representations) shall be an amount
equal to the Purchase Price. For purposes of calculating the Liability
Threshold, Damages with respect to Claims arising out of a breach of the Title
Representations shall not be counted in determining whether the Liability
Threshold has been reached."
(d) Section 9.4(c)(i) of the Original Agreement is hereby deleted and
replaced in its entirety with the following Section 9.4(c)(i):
"(i) The representations and warranties set forth in this Agreement shall
survive the Closing and shall expire eighteen months after the Effective Time;
provided that the representations and warranties set forth in Sections
3.2(a)(iii), 3.2(a)(iv), 3.2(b)(iii), 3.2(b)(iv), 3.3(d) and 3.3(e)
(collectively, the "Title Representations") shall survive without limitation as
to time. Except with respect to the Title Representations, no claim for
indemnification arising out of a breach of such representations and warranties
may be brought after that time."
(e) Schedule 3.3 to the Original Agreement is hereby deleted and replaced
in its entirety with the form of Schedule 3.3 attached hereto as EXHIBIT A.
(f) Schedule 3.9 is hereby amended by adding the following under the
heading "Pending Lawsuits Handled by Value Rx":
MATTER VENUE TYPE SUMMARY
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Sunergeo, Inc. v. District Court of Breach of Complaint filed
Health Care Services, ▇▇▇▇▇▇ County, Contract 3/12/98, not served,
Inc. and ValueRx, Inc. Texas alleging that
ValueRx breached a
Prescription
Agreement by failing
to make payments due
February 10, 1998
and March 10, 1998
(g) Schedule 3.10 is hereby amended by adding the following as paragraph 2
thereof:
"2. See Schedule 3.9 regarding allegations by Sunergeo, Inc. that the
Company is in breach of a Prescription Agreement, dated August 26, 1992, between
Sunergeo and Health Care Services, Inc."
(h) Schedule 3.12(d) to the Original Agreement is hereby amended by (i)
changing the reference to "Schedule 3.12(b)" in such schedule to "Schedule
3.12(d)," and (ii) attaching to such schedule the letters dated January 9, 1998,
and February 4, 1998 that are referred to in such schedule (copies of which are
attached to this Amendment as EXHIBIT B).
3. ADDITIONAL AGREEMENTS.
(a) Notwithstanding the provisions of Section 2.4, the Effective Time shall
be 12:01 a.m., April 1, 1998.
(b) Columbia shall use all reasonable efforts to assist in: (i) the
reinstatement of ValueRx of Iowa, Inc. as a corporation in good standing under
the laws of the State of Illinois as promptly as practicable; and (ii) obtaining
evidence of good standing and payment of franchise taxes by the corporations
identified in Exhibit C in the jurisdictions therein specified.
4. MISCELLANEOUS.
(a) Except as otherwise specifically set forth in this Amendment, the
Original Agreement remains in full force and effect, without modification,
amendment or change.
(b) The respective representations of the parties set forth in Sections
3.4, 3.5, 4.2 and 4.3 of the Original Agreement shall apply to this Amendment.
IN WITNESS WHEREOF, the parties have caused this First Amendment to Stock
Purchase Agreement to be executed as of the date first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /S/ V. ▇▇▇▇ ▇▇▇▇▇▇
Name: V. ▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
VH HOLDINGS, INC.
By: /S/ V. ▇▇▇▇ ▇▇▇▇▇▇
Name: V. ▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇ HOLDINGS, INC.
By: /S/ V. ▇▇▇▇ ▇▇▇▇▇▇
Name: V. ▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
EXPRESS SCRIPTS, INC.
By: /S/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title: SENIOR VICE PRESIDENT AND CFO
List of Exhibits to the First Amendment to Stock Purchase Agreement
1. Exhibit A - Replacement Schedule 3.3 to the Stock Purchase Agreement
listing all Value Health Subsidiaries.
2. Exhibit B - Two letters from ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to
the Internal Revenue Service regarding the Value Health, Inc. Retirement Savings
Plan
3. Exhibit C - Listing of various Value Health, Inc. subsidiaries and their
respective jurisdiction of incorporation.