EXHIBIT (d)(3)
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of June 14, 2004 (this "AMENDMENT"), to the
Agreement and Plan of Merger, dated as of May 18, 2004 (the "MERGER AGREEMENT"),
by and among Cardinal Health, Inc., an Ohio corporation ("CARDINAL HEALTH"),
Blue Merger Corp., a Delaware corporation and a wholly owned subsidiary of
Cardinal Health ("SUBCORP"), and ALARIS Medical Systems, Inc., a Delaware
corporation ("ALARIS"). Capitalized terms not otherwise defined herein have the
respective meanings set forth in the Merger Agreement.
W I T N E S S E T H :
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WHEREAS, Cardinal Health, Subcorp and ALARIS desire to amend the Merger
Agreement, in accordance with Section 8.3 thereof, to reflect the agreement of
the parties at the time of the Merger Agreement by correcting certain errors in
Section 6.3(c), Section 8.2 and Annex A of the Merger Agreement, each such
correction to reflect the initial intentions and understandings of each of the
parties hereto with respect to such provisions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Parties agree as follows:
1. AMENDMENT TO SECTION 6.3(C) OF THE MERGER AGREEMENT. Section 6.3(c) of
the Merger Agreement is hereby amended to change the reference to
"Section 6.2(b)" in such Section to "Section 6.3(b)".
2. AMENDMENT TO SECTION 8.2 OF THE MERGER AGREEMENT. The third sentence of
Section 8.2 of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
If this Agreement is terminated pursuant to Section 8.1(c), Section
8.1(d) or Section 8.1(e), and (x) at any time prior to such
termination, neither (1) a proposal by a person other than Cardinal
Health or its affiliates regarding a Business Combination (as defined
below) shall have been made on a bona fide basis to ALARIS or any of
ALARIS' directors, officers, employees, agents, significant
stockholders or representatives or shall have been publicly disclosed
nor (2) a person other than Cardinal Health or its affiliates shall
have indicated publicly or to ALARIS or any of ALARIS' directors,
officers, employees, agents, significant stockholders or
representatives a bona fide interest in making or pursuing such a
proposal regarding a Business Combination, and (y) within
nine months after the date of any such termination ALARIS enters into
a letter of intent, agreement-in-principle, acquisition agreement or
other similar agreement with respect to, or publicly announces, a
Business Combination or consummates a Business Combination and the
transaction so provided for in such letter of intent,
agreement-in-principle, acquisition agreement or other similar
agreement is consummated within 12 months after the date of any such
termination, then (z) ALARIS will, upon consummation of such Business
Combination, pay to Cardinal Health in cash by wire transfer in
immediately available funds to an account designated by Cardinal
Health a termination fee in an amount equal to $52,500,000.
3. Amendment to Annex A of the Merger Agreement. Clause (i) of the first
sentence of Annex A is hereby amended by adding the word "executive"
before the word "officer" in the first parenthetical clause of such
Clause (i).
4. Miscellaneous.
(a) From and after the date hereof, all references in the Merger
Agreement to "this Agreement" shall be deemed to mean the
Merger Agreement as amended by this Amendment, but references
to "the date of this Agreement" in the Merger Agreement, as
amended by this Amendment, shall be deemed to be May 18, 2004.
(b) Each party to this Amendment hereby represents that it has
all requisite corporate power and authority to enter into and
deliver this Amendment, to perform its obligations under the
Amendment, and to consummate the transactions contemplated by
this Amendment; that the execution and delivery of this
Amendment and the consummation of the transactions
contemplated by this Amendment by such party, as the case may
be, have been duly authorized by all necessary corporate
action on the part of such party, except, in the case of
Subcorp, for the adoption of this Amendment by Cardinal Health
as sole stockholder of Subcorp, which shall be effected
immediately after this Amendment is executed; and that this
Amendment has been duly executed and delivered by such party
and constitutes the legal, valid and binding obligation of
such party enforceable against such party in accordance with
its terms.
(c) The section headings in this Amendment are intended solely for
convenience and shall be given no effect in the construction
and interpretation hereof.
(d) This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware without
regard to the principles of conflicts of laws thereof. All
actions and proceedings arising out of or relating to this
Amendment
shall be heard and determined in any state or federal court
sitting in the State of Delaware.
(e) This Amendment may be executed in counterparts, which together
shall constitute one and the same Amendment. The Parties to
this Amendment may execute more than one copy of this
Amendment, each of which shall constitute an original.
IN WITNESS WHEREOF, Cardinal Health, Subcorp and ALARIS have executed
this Amendment No. 1 to the Merger Agreement or caused this Amendment No. 1 to
the Merger Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
CARDINAL HEALTH, INC.
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President -
Corporate Development
BLUE MERGER CORP.
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President -
Corporate Development
ALARIS MEDICAL SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxxx
Title: President and Chief
Executive Officer
