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Exhibit 2.2
EXECUTION
VERSION
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT (this “ Amendment
”), dated as of March 25, 2008, is made and entered into
by and among Amedisys, Inc., a Delaware corporation (the “
Buyer Parent ”), Amedisys TLC Acquisition, L.L.C., a
Louisiana limited liability company (the “ Buyer
Company ”), TLC Health Care Services, Inc., a Delaware
corporation (the “ TARGET ”), TLC Holdings I
Corp., a Delaware corporation (“ Holdco ”), and
Arcapita Inc., a Delaware corporation, as Sellers’
Representative on behalf of (i) the shareholders of the TARGET
other than Holdco (all said persons, the “ TARGET Minority
Securityholders ”), and (ii) the shareholders of
Holdco (the “ Holdco Securityholders
”).
W I T N E S S E T
H:
WHEREAS, the parties hereto
are parties to that certain Purchase and Sale Agreement, dated as
of February 18, 2008 (the “ PSA ”);
and
WHEREAS, the parties hereto
wish to amend the PSA in certain respects.
NOW, THEREFORE, in
consideration of the premises and the mutual promises and
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Amendment
of Section 1.1 . All capitalized terms, unless otherwise
defined or amended herein, shall have the meanings ascribed to such
terms in the PSA. Section 1.1 of the PSA is hereby amended as
follows:
(a) The definitions of
“Assets to be Divested,” “Divested Asset
Proceeds” and “Retained Assets Value Amount”
shall be deleted in their entirety.
(b) The following definitions
shall be added in their applicable alphabetical
location:
“ New Holdco
” has the meaning Section 3.2(a) specifies.
“ New Holdco Pro
Rata Share ” has the meaning Section 3.2(a)
specifies.
“ New Holdco
Stock ” has the meaning Section 3.2(a)
specifies.
“ Reimbursed
Expenses ” has the meaning Section 3.2(d)
specifies.
“ WV Sub ”
has the meaning Section 3.2(a) specifies.
(c) The definition of
“Initial Payment Amount” shall be deleted and replaced
in its entirety with the following:
“ Initial Payment
Amount ” has the meaning Section 3.1(b)
specifies.
Section 2. Amendment
of Section 3.2 . Section 3.2 of the PSA is hereby
deleted and replaced in its entirety with the following:
(a) The Parties shall
negotiate in good faith and use commercially reasonable efforts to
agree upon alternative structures for the Transactions to
facilitate prompt Closing in consultation with all relevant
Governmental Authorities. In the jurisdictions of Rhode Island and
the District of Columbia, subject to applicable regulatory
requirements, the Parties intend to close the Transactions with
respect to the TARGET’s (or its Subsidiary’s)
operations in Rhode Island and the District of Columbia and obtain
subsequent Governmental Approval. In the jurisdiction of New York,
subject to applicable regulatory requirements (including without
limitation the availability of the alternative procedure to permit
Closing prior to obtaining regulatory approval and assurances as to
related licenses), the Parties intend to close the Transactions
with respect to the TARGET’s (or its Subsidiaries’)
operations in New York and obtain subsequent Governmental Approval.
In the jurisdiction of West Virginia, subject to applicable
regulatory requirements, the TARGET will contribute the sole
membership interest of Tender Loving Care Health Care Services of
West Virginia, LLC (the “ WV Sub ”) (which, at
the time of such contribution, will hold all of the TARGET’s
(or its Subsidiaries’) Agencies and related assets in West
Virginia) to a new corporation (“ New Holdco ”)
in exchange for all of the outstanding stock of New Holdco (the
“ New Holdco Stock ”) and, on the Closing Date
but immediately prior to the Closing, the TARGET will transfer all
of the New Holdco Stock to the Holdco Securityholders in proportion
to their ownership of the Holdco Shares. For purposes of this
Agreement, “ New Holdco Pro Rata Share ” shall
mean the quotient obtained by dividing the aggregate number of
shares of the New Holdco Stock held by such Holdco Securityholder
by the aggregate number of outstanding shares of the New Holdco
Stock held by all Holdco Securityholders. The formation of New
Holdco, the transfer of the WV Sub to New Holdco, and the transfer
of the New Holdco Stock to the Holdco Securityholders pursuant to
this Section 3.2(a) shall be referred to as the “
Restructuring .” The indirect ownership interest in
the WV Sub and the Agencies and related assets in West Virginia
that is represented by the New Holdco Stock shall be referred to as
“ TLC Retained Assets .”
(b) With respect to the TLC
Retained Assets, subject to and in accordance with all applicable
regulatory requirements, the Buyer Company (or one of its
Affiliates) shall provide all necessary support services for the
related Agencies currently provided by the TARGET, including
regulatory compliance, IT, clinical care support services, training
and back office support, pursuant to an agreement between the Buyer
Company and the WV Sub to be executed as of the Closing (the
“ Shared Services Agreement ”) in a form agreed
to by the Parties, consistent with all applicable regulatory
requirements. The Buyer Company shall be paid a fair market value
services fee to be mutually agreed upon by the Parties and to be
set forth in the Shared Services A
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