EXHIBIT 2.5
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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
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THIS AMENDMENT to Agreement AND PLAN OF MERGER (this "Amendment") is made
as of the ____ day of January, 1999, by and among WebMD, Inc., a corporation
organized and existing under the laws of the State of Georgia (the "WebMD"),
Direct Medical Knowledge, Inc., a corporation organized and existing under the
laws of the State of California ("DMK"), SHN Merger Corp., a corporation
organized and existing under the laws of the State of California ("Merger
Corp.") and the holders of the DMK's capital stock signatory hereto
(individually, a "Shareholder"; collectively the "Shareholders"), and amends
that certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of
January 12, 1999, by and among WebMD, DMK, Merger Corp. the Shareholders, and
▇▇▇▇ Battle ("Indemnitor Representative").
Background
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A. The parties to this Amendment entered into the Merger Agreement,
pursuant to which WebMD acquired DMK pursuant to the merger (the "Merger") of
DMK with and into Merger Corp.
B. The parties wish to amend the Merger Agreement for the purpose of,
among other things, providing for the continued indemnification of the officers,
directors and employees of DMK in respect of acts or omissions occurring on or
prior to the Effective Time.
C. All terms not otherwise defined herein shall have the meaning given
them in the Merger Agreement.
Agreement
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In consideration of the mutual promises and covenants herein and in the
Shareholders Agreement, the parties hereby agree as follows:
Section 1. Amendment to Article 9. Article 9 of the Merger Agreement is
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hereby amended by adding the following provisions to the end thereof:
9.15 Indemnification of DMK Officers and Directors.
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(a) For a period of six (6) years following the Effective Time, WebMD
and the Surviving Corporation jointly and severally shall indemnify, defend
and hold harmless each person who is now, or has been at any time prior to
the date of this Agreement, or who becomes prior to the Effective Time, an
officer, director or employee of DMK in respect of acts or omissions
occurring on or prior to the Effective Time to the extent provided under
DMK's Articles of Incorporation, Bylaws and indemnification agreements (if
any) in effect on the date hereof; provided that such indemnification shall
be subject to any limitation imposed from time to time under applicable
law.
(b) If WebMD or the Surviving Corporation or any of their respective
successors or assigns (i) consolidates or merges into any other person or
entity and shall not be the continuing or surviving person of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person or entity, then and in each such case,
the obligations set forth in this Section 9.15 shall be binding upon such
successors and assigns of WebMD or the Surviving Corporation."
Section 2. Amendment to Section 9.12. Section 9.12 of the Merger
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Agreement is hereby amended by deleting the last sentence thereof in its
entirety.
Section 3. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Georgia, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 4. Multiple Counterparts. This Amendment may be executed as one
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or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereby have executed and caused this
Amendment to be duly executed all as of the day and year first above written.
ATTEST: WEBMD, INC.
/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Secretary Chief Financial Officer
[CORPORATE SEAL]
ATTEST: SHN MERGER CORP.
/s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Assistant Secretary Vice President
[CORPORATE SEAL]
ATTEST: DIRECT MEDICAL KNOWLEDGE, INC.
/s/ P. ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Secretary President
[CORPORATE SEAL]
2
SHAREHOLDERS
Eucalyptus, Ltd.
By: /s/ Le ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: Le ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
H&Q Direct Medical Knowledge Investors, LP
By: /s/ ▇▇▇▇▇ Dolasia
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Name: ▇▇▇▇▇ Dolasia
Title: Principal
HealthMagic, Inc.
By: /s/
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Name:
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Title:
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Indemnitor Representative
/s/ ▇▇▇▇ Battle
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▇▇▇▇ Battle
3
/s/ P. ▇▇▇▇ ▇▇▇▇▇▇
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P. ▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ Battle
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▇▇▇▇ Battle
4
