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Exhibit 2.6
FIRST
AMENDMENT
to
STOCK PURCHASE
AGREEMENT
FIRST AMENDMENT TO STOCK
PURCHASE AGREEMENT dated as of January 8, 2007 to the Stock
Purchase Agreement dated as of December 20, 2006 (the “
Purchase Agreement ”) by and among Critical Homecare
Solutions, Inc., a Delaware corporation (“ Buyer
”), The Deaconess Associations, Inc., an Ohio non-profit
corporation (“ Seller ”), and Deaconess
Enterprises, Inc., an Ohio corporation (“ Company
”). Buyer, Seller and Company are referred to collectively
herein as the “ Parties .”
WHEREAS, Buyer, Seller and
Company have agreed to amend the Purchase Agreement as provided
herein.
NOW, THEREFORE, in
consideration of the foregoing and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Section 1.
Definitions . Capitalized terms used herein but not defined
herein shall have the meanings assigned such terms in the Purchase
Agreement.
Section 2.
Amendments . The Purchase Agreement is hereby amended as
follows:
(a) The following clause
(f) is added to the end of the definition of “Seller
Plans” in §1 Definitions:
“; and (f) the
Infusion Partners, Inc. Supplemental Executive Compensation
Plan.”
(b) The following new
§6(g) is hereby added to the Purchase Agreement:
“(g) Company Savings
Plan . Effective as of the Transfer Date (as defined below),
Buyer shall have established a defined contribution plan (the
“ Buyer Savings Plan ”) and related trust under
Section 501(a) of the Code (the “ Buyer Savings
Trust ”) to accept a transfer of assets and corresponding
liabilities from the Deaconess Savings Plan and the related trust
of the Deaconess Savings Plan (the “ DAI Savings Trust
”), in accordance with this §6(g). As soon as
practicable after the Closing, but in no event later than 180
consecutive calendar days after the Closing (the “
Transfer Date ”), Seller shall direct the trustee of
the DAI Savings Trust to transfer to the trustee of the Buyer
Savings Trust the account balances in the DAI Savings Plan (the
“ Transferred Accounts ”) of all Employees of
Company and its Subsidiaries set forth on Schedule 4(f)
(“ Company Employees ”). Except as specified in
the last sentence of this §6(g), such transfer shall be made
in cash and/or as freely transferable securities that are
reasonably acceptable to Buyer, and as transfers of outstanding
participant loans
to Company Employees. The
transfer described herein shall be subject to the requirements of
Section 414(l) of the Code and Section 1.414(l)-1 of
Treasury Regulations. In carrying out any transfer in cash, Buyer
shall cause the Transferred Accounts to be reinvested in investment
options in the Buyer Savings Plan to the extent that such options
are substantially the same as the investment options elected by the
Company Employees (whether current or former) for such portion of
the account balances in the DAI Savings Plan. If, with respect to a
specific investment option in the DAI Savings Plan, there is no
investment option in the Buyer Savings Plan that is substantially
the same, the portion of a Transferred Account that is invested in
such investment option shall be transferred to the most
conservative investment option in the Buyer Savings Plan until such
time as the participant reallocates his or her account investment
under the Buyer Savings Plan. All outstanding participant loans to
Company Employees (whether current or former) shall be transferred
to the Buyer Savings Plan in kind.”
(c) The following new
§6(h) is hereby added to the Purchase Agreement:
“(h) Letters of
Credit – Workers’ Compensation . Seller
acknowledges and agrees that Company has outstanding the two
letters of credit set forth on Schedule A hereto (the
“ LCs ”) for the benefit of its workers’
compensation insurance providers for the employees of MCH Services
and Company and its Subsidiaries. Seller agrees to maintain the LCs
through their respective expiration dates and provide replacement
letters of credit or credit support in the amounts and for the
periods required by such insurance providers with respect to the
workers’ compensation obligations supported by the LCs
through the Effective Date. In addition, Seller agrees to pay all
costs associated with the workers’ compensation insurance
policies supported by such LCs and all costs related to the
termination of such policies as of the Closing
Date.”
(d) The Parties acknowledge
and agree that the Reimbursement Agreement shall not be executed
and delivered at Closing and in lieu of such requirement, the
Parties agree to add the following §6(i) to the Purchase
Agreement:
(e) The following new
§6(i) is hereby added to the Purchase Agreement:
“(i) Reimbursement
Obligations .
(i) Defined Terms
.
“ Covered
Participants ” means (1) individuals who were
employed by Company or its Subsidiaries set forth on Schedule 4(f)
prior to the Closing D
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