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.
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
