EXHIBIT 99.1
AMENDMENT NO. 1 TO MERGER AGREEMENT
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of May 16, 2003, by and among DENDRITE INTERNATIONAL,
INC., a New Jersey corporation ("PARENT"), AMGIS ACQUISITION CO., a Delaware
corporation and a wholly-owned subsidiary of Parent ("PURCHASER"), and SYNAVANT
INC., a Delaware corporation (the "COMPANY").
WHEREAS, the parties hereto entered into an Agreement and Plan of
Merger dated as of May 9, 2003 (the "MERGER AGREEMENT");
WHEREAS, the parties desire to amend the terms of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth in this Amendment, the parties hereby agree as follows
(capitalized terms contained herein have the meanings set forth in the Merger
Agreement):
Section 1. Section 1.1 of the Merger Agreement is hereby amended to add
the following definition thereto in the proper alphabetical order:
"DENDRITE LOAN" shall mean the loan under the Secured Promissory Note,
dated as of May 16, 2003, from the Company to Parent."
"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and the rules and regulations thereunder."
Section 2. Section 2.1(a) of the Merger Agreement is hereby amended by
deleting the words "a price of $2.83 per Share" appearing therein and
substituting in lieu thereof the words "a price of $3.22 per Share".
Section 3. Section 2.1(c) of the Merger Agreement is hereby replaced by
the following:
"(c) Without the prior written consent of the Company,
Purchaser shall not extend the expiration date of the Offer beyond the
initial expiration date of the Offer (which shall be the 20th business
day after commencement of the Offer), except (A) as required by
applicable law, (B) that if, immediately prior to the expiration date
of the Offer (as it may be extended at such time), the Shares tendered
and not withdrawn pursuant to the Offer constitute less than 90% of the
outstanding Shares, Purchaser may, in its sole discretion, on one
occasion, extend the Offer for a period not to exceed an aggregate of
ten business days, notwithstanding that all conditions to the Offer are
satisfied as of such expiration date of the Offer, or (C) that if any
condition to the Offer has not been satisfied or waived, Purchaser may,
in its sole discretion, extend the expiration date of the Offer (as it
may be extended at such time) for one or more periods but no later
than August 1, 2003 without the Company's prior written consent;
provided that (1) if requested by the Company, the Purchaser shall, on
two occasions, extend the expiration date of the Offer (as it may be
extended at such time) for a period not to exceed an aggregate of ten
Business Days, if any condition to the Offer has not been satisfied or
waived, (2) if on the scheduled expiration date of the Offer (as it may
be extended at such time), the condition to the Offer set forth in
paragraph (a) of Exhibit B has not been satisfied or waived or any
Governmental Authority has requested that the transactions contemplated
hereby not be consummated, Purchaser shall be obligated to extend the
expiration date of the Offer for a minimum of 30 days on a consecutive
basis until the Termination Date and (3) the expiration date of the
Offer may be extended in connection with an increase in the
consideration to be paid pursuant to the Offer so as to comply with
applicable rules and regulations of the SEC."
Section 4. Section 5.1(d)(ii) of the Merger Agreement is hereby
replaced by the following:
"(ii) require any consent or approval of, or material filing
with or notice to, any Governmental Authority under any provision of
Law applicable to the Company or any of its Subsidiaries, except for
(A) any applicable requirements of the HSR Act, (B) any applicable
requirements of any non-U.S. antitrust, competition, merger or
investment control or other pre-merger statutes or regulations
("NON-U.S. MERGER CONTROL REGULATIONS"), (C) any applicable provisions
of the DGCL requiring Stockholder Approval of the transactions
contemplated hereby, (D) the Exchange Act and (E) any consent,
approval, filing or notice requirement which becomes applicable solely
as a result of the status or involvement of Parent or its Affiliates or
which Parent or its Affiliates are otherwise required to obtain;"
Section 5. Section 5.2(d)(ii) of the Merger Agreement is hereby
replaced by the following:
"(ii) require any consent or approval of, or material filing
with or notice to, any Governmental Authority under any provision of
Law applicable to Parent or Purchaser, except for (A) any applicable
requirements of the HSR Act, (B) any applicable requirements of
Non-U.S. Merger Control Regulations, and (C) any consent, approval,
filing or notice requirement which becomes applicable solely as a
result of the status or involvement of the Company or which the Company
is otherwise required to obtain;"
Section 6. Section 6.4 of the Merger Agreement is hereby replaced by
the following:
"(a) Each party hereto shall (i) make the filings required of
it or any of its Affiliates under the HSR Act in connection with this
Agreement and the
transactions contemplated hereby as soon as practicable, but in any
event no later than May 28, 2003, or as soon thereafter as reasonably
possible, (ii) make all pre-merger filings (if any) required of it or
any of its Affiliates under any applicable Non-U.S. Merger Control
Regulations in connection with this Agreement and the transactions
contemplated hereby as soon as practicable, but in any event no later
than fifteen calendar days following the date hereof, or as soon
thereafter as practicable, (iii) comply at the earliest practicable
date and after consultation with the other parties hereto with any
request for additional information or documentary material received by
it or any of its Affiliates from any applicable Governmental Authority,
(iv) cooperate with one another in connection with any filing under the
HSR Act and any applicable Non-U.S. Merger Control Regulations, and in
connection with resolving any investigation or other inquiry concerning
the transactions contemplated by this Agreement initiated by any
Governmental Authority and (v) use its best efforts to secure the
termination of any waiting periods (including without limitation under
the HSR Act), and the receipt of any clearances, approvals or
confirmations from Governmental Authorities under the HSR Act and under
any applicable Non-U.S. Merger Control Regulations in order to permit
the consummation of the transactions contemplated hereby at the
earliest possible date but in no event later than the Termination Date.
For purposes of this Section 6.4, without limiting the foregoing, best
efforts shall include the following: (A) proffer by Parent of its
willingness to agree to sell or otherwise dispose of, and its agreement
to sell or otherwise dispose of, any and all of the businesses or
assets of it or its Subsidiaries or Affiliates or of the Company or its
Subsidiaries, (B) Parent's proffer and acceptance of an agreement to
hold the Company or any Subsidiary of it or the Company or asset
separate, and/or (C) Parent's agreement to amend or terminate such
existing relationships, contractual rights and obligations, licenses
and other intellectual property agreements (other than a termination
that would result in a breach of a contractual obligation, license or
intellectual property agreement with a third party), and, in each case,
to enter into such new contracts, licenses and other intellectual
property agreements (and, in each case, to enter into agreements with
the relevant Governmental Authorities giving effect thereto), as may be
required in any Proceeding, whether judicial or administrative, and
whether required by any applicable Governmental Authority in connection
with the transactions contemplated by this Agreement or any other
agreement contemplated hereby. Each party hereto shall promptly inform
the other parties of any material communication made to, or received by
such party from, the FTC, the Antitrust Division, the European
Commission or any other Governmental Authority regarding any of the
transactions contemplated hereby. The filing fees assessed under the
HSR Act and any applicable Non-U.S. Merger Control Regulations
worldwide shall be paid by Parent.
(b) Subject to the terms and conditions of this Agreement,
each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all actions
and to do, or cause to be done, all things necessary to consummate and
make effective the transactions contemplated by this Agreement,
including using its best efforts: (i) to obtain, in addition to
securing the approvals and termination of any waiting periods discussed
in Section 6.4(a), any Licenses and Permits as are required in
connection with the consummation of the transactions contemplated
hereby; (ii) to effect, in addition to filings discussed in Section
6.4(a), all other necessary registrations and filings; (iii) to defend,
resolve or settle any lawsuits or other legal proceedings, whether
judicial or administrative, whether brought by private parties or
Governmental Authorities or officials, challenging this Agreement or
the consummation of any other transactions contemplated hereby;
provided, that, the Company shall not be required to comply with this
Section 6.4, including this clause (iii), with respect to any lawsuit
or other legal proceedings brought by Cegedim or any of its Affiliates
or any stockholder of the Company; (iv) to prevent the entry, enactment
or promulgation of any threatened or pending Order that would adversely
affect the ability of any party to this Agreement to consummate the
transactions contemplated hereby or thereby, including the appeal
thereof and the posting of a bond; provided, that, the Company shall
not be required to comply with this Section 6.4(b), including this
clause (iv), with respect to any such Order which are the result of any
action or Proceeding brought by Cegedim or any of its Affiliates or any
stockholder of the Company; (v) to furnish to each other such
information and assistance and to consult with respect to the terms of
any registration, filing, application or undertaking as may be
reasonably requested in connection with the foregoing; and (vi) to
amend this Agreement and take any related actions to change the method
with which Parent acquires the Company, including without limitation,
terminating the Offer and conducting a merger under Section 251 of the
DGCL. Notwithstanding the provisos contained in clauses (iii) and (iv)
of the preceding sentence, the Company shall reasonably cooperate with
Parent and Purchaser in connection with any of the matters referred to
in such provisos."
Section 7. Section 8.1(b) of the Merger Agreement is hereby replaced by
the following:
"(b) By either the Company or Parent if the consummation of
the Offer shall not have occurred on or before October 1, 2003 (as
extended by the proviso below, the "TERMINATION DATE"); provided,
however, that (i) the right to terminate this Agreement under this
Section 8.1(b) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the primary cause
of the failure of such consummation to occur on or before such date and
(ii) if the consummation of the Offer shall not have occurred on or
before October 1, 2003 because of the failure of the condition set
forth in paragraph (a) of Exhibit B to be satisfied or waived or
because any Governmental Authority has requested that the transactions
contemplated hereby not be consummated and Parent and the Company agree
to such request, then, at the Company's or Parent's election, the
Termination Date shall be extended to December 31, 2003;"
Section 8. The Merger Agreement is hereby amended by adding the
following text as new Section 8.2(d):
"(d) The Company may not exercise the termination right under
Section 8.1(e) of this Agreement unless the Company (i) simultaneously
pays to Parent all amounts outstanding under the Dendrite Loan and (ii)
reasonably demonstrates that it has at such time an aggregate amount of
availability under one or more credit facilities or other loans which
combined total at least $4 million in available funds after the payment
of all the amounts payable by the Company to Parent under this
Agreement and the Dendrite Loan."
Section 9. Paragraph (b) of Exhibit B to the Merger Agreement is hereby
replaced by the following:
"(b) (i) the representations and warranties of the Company
contained in the Agreement shall not have been true and correct when
made as of the date of the Agreement, except in each case for the
failure of any such representation or warranty to be true and correct
which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and (ii) any such inaccuracy
has not been cured; or"
Section 10. The items set forth on Exhibit A attached hereto shall be
deemed included in each section of the Company Disclosure Schedule, in each
case, as of the date of the Merger Agreement.
Section 11. (a) Except as expressly modified by this Amendment, the
Agreement shall remain in full force and effect, and its terms and provisions
are hereby ratified and affirmed in all respects. Without limiting the
generality of the foregoing, the parties agree that in the event of a conflict
between any provision of the Merger Agreement and this Amendment, the provisions
of this Amendment shall control.
(b) The parties may execute this Amendment in separate counterparts (no one
of which need contain the signatures of all parties), each of which will be an
original and all of which together will constitute one and the same instrument.
Any party may execute this Amendment by facsimile signature, and the other
parties will be entitled to rely on such facsimile signature as conclusive
evidence that this Amendment has been duly executed by such party.
(c) This Amendment shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized Representative as of
the date first above written.
DENDRITE INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Chairman and CEO
AMGIS ACQUISITION CO.
By: /s/ Xxxxxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President, General Counsel
and Secretary
SYNAVANT INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
EXHIBIT A
1. Actions (including payment of fees and expenses) relating to obtaining the
Waiver Letter, dated April 11, 2003 (the "Waiver Letter") between the Company
and CapitalSource Finance LLC), including alleged defaults or events of default
thereunder, and alleged defaults under the Credit Facility relating to alleged
errors made in connection with borrowing notices and a waiver of such alleged
defaults, with Parent's approval not to be unreasonably withheld.
2. The hiring of a Vice President of Marketing and Customer Relations for the
United States IM business with a salary in excess of $100,000.
3. The Company has received oral notice that Siebel intends to terminate the
Revised Siebel Alliance Program Master Agreement, effective as of January 1,
2002, between the Company and Siebel.
4. Borrowings under the Secured Promissory Note, dated as of May 16, 2003, from
the Company to Parent.
