FIRST AMENDMENT TO
PLAN AND AGREEMENT OF MERGER
BY AND AMONG
HEALTHSOUTH CORPORATION,
SSCI ACQUISITION CORPORATION AND
SUTTER SURGERY CENTERS, INC.
This Amendment No. 1 to the Plan and Agreement of Merger (the 'Plan of
Merger') dated as of the 23rd day of August, 1995, is made and entered into as
of the 26th day of October, 1995, by and among HEALTHSOUTH CORPORATION, a
Delaware corporation ('Buyer'); SSCI ACQUISITION CORPORATION, a Delaware
corporation and a wholly owned subsidiary of Buyer ('Sub'); and SUTTER SURGERY
CENTERS, INC., a Delaware corporation (the 'Company' or 'SSCI'). (Terms not
otherwise defined herein shall have the same meanings as in the Plan of Merger).
R E C I T A L S:
WHEREAS, Buyer, Sub and SSCI have heretofore entered into the Plan of
Merger providing for the merger (the 'Merger') of Sub with and into SSCI in
accordance with the Delaware General Corporation law (the 'Delaware Law') upon
the terms and conditions set forth in the Plan of Merger; and
WHEREAS, the Plan of Merger provides for the exchange of SSCI's
existing shares of common stock for shares of HEALTHSOUTH's common stock, with
such HEALTHSOUTH common to be registered at the Effective Time of the Merger
pursuant to an effective registration statement to be filed with the Securities
and Exchange Commission ('SEC'); and
WHEREAS, the SEC, by letter dated October 13, 1995, has objected to the
filing by HEALTHSOUTH of a registration statement on Form S-4 which would cover
the HEALTHSOUTH common stock to be issued to the shareholders of SSCI pursuant
to the Merger; and
WHEREAS, HEALTHSOUTH has agreed to amend its filing on Form S-4 to
convert it to a filing on Form S-3 pursuant to Rule 415 under the Securities Act
of 1933;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. The second sentence of Section 5.5 'Buyer Common Stock' is hereby
deleted in its entirety and the following is substituted in its place:
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'The Buyer Common Stock to be issued pursuant to the Plan of
Merger will, when so delivered, be (i) duly and validly
issued, fully paid and non-assessable; (ii) be able to be
publicly resold by the stockholders of SSCI upon effectiveness
of a registration statement to be filed with the Securities
and Exchange Commission within 30 days after the Effective
Time by Buyer on Form S-3 and pursuant to Rule 415 as
promulgated under the Securities Act of 1933 (the 'Act'), and
(iii) after the registration statement provided for in (ii)
shall have been declared effective by the SEC, be authorized
for listing on the Exchange upon official notice of issuance.'
In all other respects, the language of Section 5.5 is unchanged.
2. In the second and third lines of Section 7.6(a) delete the phrase
'as soon as reasonably practicable' and insert 'within thirty (30) days of the
Effective Time'.
3. In the third line of Section 7.6(a) there is inserted after the
words 'a registration Statement' the following:
'on Form S-3 and pursuant to Rule 415 under the Securities Act
of 1933'
In all other respects, other than as set forth in Paragraph 2 hereof,
the language of Section 7.6(a) is unchanged.
4. In Section 7.6(b) delete the words 'Prior to the Closing Date' at
the beginning of Section 7.6(b) and substitute therefore 'Within thirty (30)
days of the Effective Time'. In all other respects Section 7.6(b) is unchanged.
5. In Section 7.6(c) delete the words 'prior to the Closing Date' at
the beginning of the subparagraph and again at the end of the subparagraph, and,
in each case, substitute therefore: 'within thirty (30) days after the Effective
Time'. In all other respects the provisions of 7.6(c) are reconfirmed and
restated.
6. Section 8.8 'Registration Statement' is deleted in its entirety.
7. Section 9.7 'Registration Statement' is hereby deleted in its
entirety.
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8. Except as set forth above, in all other respect the Plan of Merger
is hereby reaffirmed and acknowledged and the parties have caused this Amendment
No. 1 to the Plan of Merger to be executed and delivered by their duly
authorized officers as of the date first above written.
SUTTER SURGERY CENTERS, INC.,
a Delaware corporation
By /s/ AUGUST A. SAIBENI
-----------------------------------------
Name August A. Saibeni
-----------------------------------------
Title President and Chief Operating Officer
-----------------------------------------
HEALTHSOUTH Corporation,
a Delaware corporation
By /s/ WILLIAM W. HORTON
-----------------------------------------
Name William W. Horton
-----------------------------------------
Title Group Vice President
-----------------------------------------
SSCI ACQUISITION CORPORATION,
a Delaware corporation
By /s/ WILLIAM W. HORTON
-----------------------------------------
Name William W. Horton
-----------------------------------------
Title Vice President
-----------------------------------------
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Plan and Agreement of Merger - HealthSouth Corp. and Sutter Surgery Centers Inc.
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