Exhibit 99.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment (this "Amendment") to the Agreement and Plan of
Merger, dated as of August 23, 1997 (the "Merger Agreement"), by and among
Cardinal Health, Inc., an Ohio corporation ("Cardinal"), Bruin Merger Corp., a
New Jersey corporation and a wholly owned subsidiary of Cardinal ("Subcorp"),
and Bergen Xxxxxxxx Corporation, a New Jersey corporation ("Bergen"), is made as
of March 16, 1998.
R E C I T A L S:
WHEREAS, Cardinal, Subcorp and Bergen are parties to the Merger
Agreement, providing for the merger of Subcorp with and into Bergen, with Bergen
as the surviving corporation (the "Merger"); and
WHEREAS, the parties desire to amend the Merger Agreement as set
forth herein:
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises, the
terms, conditions and other covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. As used in the Merger Agreement, (a) the term
"Agreement" shall mean the initial Merger Agreement among the parties hereto,
dated as of August 23, 1997, and any and all amendments thereto entered into on
or prior to the date hereof, and (b) terms defined in the Merger Agreement and
used herein shall have the meanings given to them in the Merger Agreement.
2. Amendment to Section 5.2(c)(iv). Section 5.2(c)(iv) of the Merger
Agreement is hereby amended by (i) deleting the phrase "Section 6.1(b) to be
satisfied" and substituting therefor the phrase "Cardinal and Bergen to prevail
in any litigation involving an HSR Authority" and (ii) deleting the date "April
30, 1998" therein and substituting therefor the date "June 30, 1998."
3. Amendment to Section 5.3(c)(v). Section 5.3(c)(v) of the Merger
Agreement is hereby amended by (i) deleting the phrase "Section 6.1(b) to be
satisfied" and substituting therefor the phrase "Cardinal and Bergen to prevail
in any litigation involving an HSR Authority" and (ii) deleting the date "April
30, 1998" therein and substituting therefor the date "June 30, 1998."
4. Amendment to Section 7.1(c). Section 7.1(c) of the Merger
Agreement is hereby amended by deleting the reference to "April 30, 1998"
therein and substituting therefor "June 30, 1998."
5. Waiver of Termination Right pursuant to Section 7.1(l). Neither
Cardinal nor Bergen shall be able to exercise their right to terminate the
Merger Agreement pursuant to Section 7.1(l) and such right to terminate shall
have been deemed to have been waived by each of the parties hereto upon
execution of this Amendment.
6. New Termination Right upon Entry of Preliminary Injunction.
Section 7.1(l) of the Merger Agreement is hereby amended by deleting the period
at the end of such subsection and substituting therefor "; or" and a new Section
7.1(m) shall be added immediately following Section 7.1(l) and immediately prior
to Section 7.2, which new Section 7.1(m) shall provide as follows:
(m) by Cardinal or Bergen on one business day's prior notice
(which notice must be received no later than 5:00 pm (New York time) to be
effective the following business day), following the entry of a
preliminary injunction by a federal district court in litigation brought
by an HSR Authority (but not as a result of a temporary restraining order
or a stay), which injunction enjoins Cardinal or Bergen from consummating
the Merger.
7. Expense Reimbursement. Section 7.2 of the Merger Agreement is
hereby amended by adding a new Section 7.2 (c) immediately following Section
7.2(b) and immediately prior to Section 7.3, which new Section 7.2(c) shall
provide as follows:
(c) Cardinal agrees that in the event of termination of this
Agreement pursuant to (x) Section 7.1 (a), Section 7.1(b) or Section
7.1(c), in each case following the entry of a preliminary injunction by a
federal district court in litigation brought by an HSR Authority (but not
in the context of a temporary restraining order or a stay), which
injunction enjoins Cardinal or Bergen from consummating the Merger, or (y)
Section 7.1(m), then Cardinal shall pay Bergen $7 million in reimbursement
of Bergen's expenses in connection with the proposed Merger within five
business days following the date of any such termination.
8. No Other Amendments. Except as expressly amended, modified and
supplemented in this Amendment, the parties hereto acknowledge that the Merger
Agreement shall remain binding upon them and that all provisions of the Merger
Agreement are and shall remain in full force and effect. Except as expressly
provided in this Amendment, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy by the
parties hereto, nor shall it constitute a waiver of any provision in the Merger
Agreement.
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9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, Cardinal, Subcorp and Bergen have signed this
Amendment as of the date first written above.
CARDINAL HEALTH, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
BRUIN MERGER CORP.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chairman
BERGEN XXXXXXXX CORPORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
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