EXHIBIT 1
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AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
dated as of February 3, 2000, among Cordiant Communications Group plc, a company
organized under the laws of England and Wales ("Parent"), Healthworld
Acquisition Corp., a Delaware corporation and an indirect wholly owned
subsidiary of Parent ("Merger Sub"), and Healthworld Corporation, a Delaware
corporation (the "Company") .
RECITALS
A. Parent, Merger Sub and the Company entered into that certain
Agreement and Plan of Merger dated as of November 9, 1999 (the "Agreement").
B. Parent, Merger Sub and the Company desire to amend the Agreement as
set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Capitalized terms used but not defined in this Amendment shall have
the meanings ascribed to them in the Agreement.
2. Section 1.1 of the Agreement is hereby amended by adding in
alphabetical order therein the following definition:
"XXXX" means Xxxxx U.S. Holdings, Inc., a Delaware corporation."
3. The definition of "Material Subsidiaries" contained in Section 1.1
of the Agreement is hereby amended to include XXXX by adding the words "and
XXXX." at the end thereof.
4. Section 2.5(b) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(b) Capital Stock of Merger Sub. Each share of common stock of Merger
Sub outstanding immediately prior to the Effective Time shall be converted into
and become as of the Effective Time one fully paid and nonassessable share of
common stock, par value $.01, per share of the Surviving Corporation."
5. Section 2.5(d) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(d) In consideration of the issue to Parent by XXXX of additional
shares of capital stock and sterling denominated promissory notes of XXXX,
Parent shall issue, in accordance with Section 2.7, such number of Parent
Ordinary Shares as is equal to the number of shares of Company Common Stock
outstanding immediately prior to the Effective Time multiplied by the Exchange
Ratio, to permit (i) the issuance of Parent ADSs and (ii) if elected by any
holder of Company Common Stock in the manner provided in Section 2.6, the
delivery of Parent Ordinary Shares, in registered form, to the holders of such
Company Common Stock for the purpose of giving effect to the delivery of the
Merger Consideration referred to in Section 2.5(c)."
6. Section 2.6(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(a) Prior to the Effective Time, Parent shall appoint The Bank of New
York or a bank or trust company reasonably acceptable to the Company as exchange
agent (the "Exchange Agent") for the purposes of exchanging the Certificates for
Parent ADSs or, if and to the extent elected by a holder of a Certificate, in
the manner set forth in this Section 2.6, for Parent Ordinary Shares in
registered form. Promptly after the Effective Time Parent will send, or will
cause the Exchange Agent to send, to each holder of record of Company Common
Stock as of the Effective Time (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as the Surviving
Corporation or Parent may reasonably specify) providing instructions for use in
effecting the surrender of Certificates in exchange for certificates
representing Parent ADRs which represent Parent ADSs or Parent Ordinary Shares
and cash in lieu of fractional Parent ADSs or Parent Ordinary Shares and (ii) an
election form and other appropriate materials (collectively, the "Ordinary
Election Form") providing for such holder to elect to receive the Ordinary Share
Consideration with respect to all or any portion of such holder's shares of
Company Common Stock (the "Ordinary Share Election"). Any shares of Company
Common Stock with respect to which there shall not have been effected such
election by submission to the Exchange Agent of an effective, properly completed
Ordinary Share Election Form on or prior to the date specified in such form (the
"Election Date") which shall be a date that is not more than 45 days following
the date of the Effective Time, shall be converted in the Merger into the right
to receive the ADS Consideration."
7. Section 2.7(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(a) Exchange Agent. Within two business days following the Effective
Time, Parent shall (i) allot to the Exchange Agent, as nominee for the benefit
of the holders of Company Common Stock converted into the right to receive the
Merger Consideration, the aggregate number of duly authorized Parent Ordinary
Shares to be issued pursuant to Section 2.5(d) and (ii) deposit with the
Exchange Agent an amount of cash sufficient to permit the Exchange Agent to make
the necessary payments of cash in lieu of fractional Parent ADSs and Parent
Ordinary Shares in accordance with Section 2.7(e) (such cash and Parent Ordinary
Shares, together with any dividends or distributions with respect thereto being
hereinafter referred to as the "Exchange Fund"), to be held for the benefit of
and distributed to the holders of Company Common Stock in accordance with this
Section. The Exchange Agent shall agree to hold such Parent Ordinary Shares and
funds for delivery as contemplated by this Section, and upon such additional
terms as may be agreed upon by the Exchange Agent, the Surviving Corporation and
Parent shall cause the Depositary to issue through and upon the instructions of
the Exchange Agent, for the benefit of the holders of shares of the Company
Common Stock converted into the ADS Consideration in accordance with Section
2.5(c), Parent ADRs representing the number of Parent ADSs issuable pursuant to
Section 2.5(c). Neither the Company, its affiliates nor the holders of Company
Common Stock shall be responsible for any stamp duty reserve tax payable in
connection with the ADS Consideration. The Exchange Agent shall invest any cash
included in the Exchange Fund as directed by the Surviving Corporation on a
daily basis. Parent and the Surviving Corporation shall replace any monies lost
through an investment made pursuant to this Section 2.7. Any interest and other
income resulting from such investments shall promptly be paid to the Surviving
Corporation. All Parent Ordinary Shares and Parent ADSs to be issued and
delivered to the holders of Company Common Stock in accordance with this
Agreement shall, as of the Effective Time, have been registered under the
Securities Act pursuant to a registration statement on Form F-4 declared
effective by the SEC."
8. Section 2.7(b) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(b) Exchange Procedures. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with the letter of transmittal
referred to in Section 2.6(a) duly executed and completed in accordance with its
terms, the holder of such Certificate shall be entitled to receive in exchange
therefor (i) a certificate or certificates representing one or more Parent ADRs
representing, in the aggregate, that whole number of Parent ADSs and/or that
whole number of Parent Ordinary Shares elected to be received in accordance with
Section 2.6, (ii) the amount of dividends or other distributions, if any, with a
record date on or after the Effective Time which theretofore became payable with
respect to such Parent ADSs and Parent Ordinary Shares, and (iii) the cash
amount payable in lieu of fractional Parent ADSs and Parent Ordinary Shares in
accordance with Section 2.7(e), in each case which such holder has the right to
receive pursuant to the provisions of this Article II, and the Certificate so
surrendered shall forthwith be canceled. In no event shall the holder of any
Certificate be entitled to receive interest on any funds to be received in the
Merger. In the event of a transfer of ownership of Company Common Stock which is
not registered in the transfer records of the Company, a certificate or
certificates representing that whole number of Parent Ordinary Shares elected to
be received in accordance with Section 2.6 and/or one or more Parent ADRs
representing, in the aggregate, that whole number of Parent ADSs, plus the cash
amount payable in lieu of fractional Parent Ordinary Shares and Parent ADSs in
accordance with Section 2.7(e), may be issued to a transferee if the Certificate
representing such Company Common Stock is presented to the Exchange Agent
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 2.7(b) and subject to Section
2.7(c), each Certificate shall, after the Effective Time, represent for all
purposes only the right to receive the whole number of Parent Ordinary Shares
and/or Parent ADSs into which the number of shares of Company Common Stock shown
thereon have been converted as contemplated by this Article II plus the cash
amount payable in lieu of fractional Parent ADSs and Parent Ordinary Shares in
accordance with Section 2.7(e). Notwithstanding the foregoing, certificates
representing Company Common Stock surrendered for exchange by any Person
constituting an "Affiliate" of the Company for purposes of Section 7.4 shall not
be exchanged until Parent has received an Affiliate Agreement (as defined in
Section 7.4) as provided in Section 7.4."
9. Section 5.2(b) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(b)(i) The authorized capital stock of Xxxx consists of 1,000 shares
of common stock, no par value, of which one share is validly issued and
outstanding, fully paid and nonassessable and is owned by Parent free and clear
of all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, charges or other encumbrances of any nature or any other
limitation or restriction (including any restriction on the right to vote or
sell the same, except as may be provided under applicable Federal or State
securities laws) (collectively, "Liens").
(ii) The authorized capital stock of Merger Sub consists of 1,000
shares of common stock, par value $.01 per share, all of which are validly
issued and outstanding, fully paid and nonassessable and are owned by XXXX free
and clear of all Liens."
10. Section 5.3 of the Agreement is hereby amended by adding at the
end thereof, the following sentence:
"The representations and warranties contained in this Section 5.3
shall apply to XXXX, to the extent pertinent, with respect to the consummation
of the transactions contemplated hereby."
11. Section 5.4(a) of the Agreement is hereby amended by adding at the
end thereof, the following sentence:
"The representations and warranties contained in this Section 5.4(a)
shall apply to XXXX, to the extent pertinent, with respect to the consummation
of the transactions contemplated hereby."
12. Section 5.4(b) of the Agreement is hereby amended by adding at the
end thereof, the following sentence:
"The representations and warranties contained in this Section 5.4(b)
shall apply to XXXX, to the extent pertinent, with respect to the consummation
of the transactions contemplated hereby."
13. Section 7.7(a) of the Agreement is hereby amended by deleting the
name "Xxxxxxx Xxxxxx Xxxxxx" contained in such Section and replacing it with the
name "Xxxxxxx X. Xxxx".
14. Section 7.14(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(a) the appointment of an appropriate independent person (who,
subject to and as provided by Section 108(2) of the Companies Xxx 0000, would be
qualified to be the auditor of Parent) to produce a valuation and report in
accordance with Section 103 of the Companies Xxx 0000;"
15. Section 7.14(d) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(d) the independent valuation report to be delivered to the Exchange
Agent and such other steps, if any, to be taken as may be necessary to comply
with the requirements of Sections 103 and 108 of the Companies Xxx 0000 in
connection with the Merger, in each case prior to the Effective Time."
16. Section 10.5 of the Agreement is hereby amended by adding at the
end thereof the following sentence:
"Parent agrees that it will specifically comply with the provisions of
Sections 7.11 and 7.12. However, the Shareholder Parties shall be entitled to
damages in the event of a breach by Parent of Sections 7.11 or 7.12 as provided
in this Section 10.5."
17. Parent and Merger Sub shall take all actions necessary to cause
XXXX to comply with the terms of this Amendment.
18. This Amendment may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and to this Amendment were upon the same instrument.
19. Except as expressly provided herein, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
CORDIANT COMMUNICATIONS GROUP PLC
By: /s/ Xxxxxx X'Xxxxxx
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Name: Xxxxxx X'Xxxxxx
Title: Finance Director
HEALTHWORLD ACQUISITION CORP.
By: /s/ Xxxxxx X'Xxxxxx
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Name: Xxxxxx X'Xxxxxx
Title: President
HEALTHWORLD CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
