AMENDMENT NO. 1 DATED
AS OF JUNE 18, 2000
TO THE AGREEMENT AND PLAN OF MERGER AMONG
HEALTHEON/WEBMD CORPORATION, AVICENNA SYSTEMS
CORPORATION AND CAREINSITE, INC., DATED AS OF FEBRUARY 13, 2000
Amendment No. 1, dated as of June 18, 2000 (the "Amendment"), to the
Agreement and Plan of Merger, dated as of February 13, 2000 (the "Merger
Agreement"), among Healtheon/WebMD Corporation ("Parent"), Avicenna Systems
Corporation ("ASC") and CareInsite, Inc. (the "Company").
PRELIMINARY STATEMENTS
Parent, ASC and the Company are parties to the Merger Agreement.
Capitalized terms not otherwise defined herein have the same meanings as
specified in the Merger Agreement.
Parent, ASC and the Company desire to amend the Merger Agreement as
described herein.
In consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Parent, ASC and the
Company hereby agree as follows:
1. Representations and Warranties of the Company and ASC. From and
after the date hereof, Section 3.15 of the Merger Agreement shall be
amended to read in full as follows:
"The Company has received the opinion of Banc of America Securities
LLC dated June 18, 2000 that, as of such date, the Exchange Ratio is
fair, from a financial point of view, to the holders of the Company
Common Stock."
2. Representations and Warranties of Parent. From and after the date
hereof, Section 4.15 of the Merger Agreement shall be amended to read in
full as follows:
"Parent has received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, dated June 18, 2000 that, as of such date, the Exchange
Ratios in the Merger and the Medical Manager Merger, taken together and
not separately, are fair to Healtheon/WebMD from a financial point of
view."
3. Covenants of the Company. From and after the date hereof, Section
5.01 of the Merger Agreement shall be amended as follows:
(a) The text of Sections 5.01(e), (j), (k), (l), (m) and (n) shall
be deleted in their entirety and replaced with, in each case, with
"[RESERVED]";
(b) Section 5.01(c)(ii) shall be amended to read in full as
follows:
"the issuance of Company Stock Options to purchase shares of Company
Common Stock and the shares of Company Common Stock issuable pursuant
to such Company Stock Options";
(c) Section 5.01(c) shall be amended to add the following at the
end of the existing clause (iii), and the existing clause (iv) shall be
renumbered as clause (v):
"(iv) the issuance by CareInsite of Series A Preferred Stock pursuant
to the Subscription Agreement dated as of September 15, 1999 between
CareInsite and America Online, Inc."
(d) Section 5.01(f)(ii) shall be amended to delete the word "and"
from the immediately preceding clause (C) and to add the following at
the end of the existing clause (C) to read in full as follows:
"and (D) loans or advances that in the aggregate do not exceed
$10,000,000"; and
(e) Section 5.01(p) shall be amended to delete the parenthetical
clause in the third line.
4. Covenants of Parent. From and after the date hereof, Section 5.02
of the Merger Agreement shall be amended as follows:
(a) Section 5.02(c)(ii) shall be amended to read in full as
follows:
"the issuance of Parent Stock Options to purchase shares of Parent
Common Stock and the shares of Parent Common Stock issuable pursuant
to such Parent Stock Options";
(b) Section 5.02(e)(ii) shall be amended to delete the word "and"
immediately preceding clause (C) and to add the following at the end of
the existing clause (C) to read in full as follows:
"and (D) loans or advances that in the aggregate do not exceed
$10,000,000"; and
(c) Section 5.02(i) shall be amended to delete the parenthetical
clause beginning in the second line.
5. Further Action; Consents; Filings. From and after the date hereof,
Section 6.07 of the Merger Agreement shall be amended as follows:
(a) Section 6.07(a) shall be amended to add the following sentence
at the end of the existing clause (a):
"Each of Parent and the Company shall use best efforts to certify, by
no later than July 30, 2000, and shall certify no later than August
15, 2000, to the Department of Justice as required by Section 802.6(b)
of the implementing rules for the HSR Act that such party has
substantially complied with the request for additional information the
parties received on May 24, 2000 in connection with their pre-merger
notification filing under the HSR Act."
(b) The proviso of the second sentence of Section 6.07(c) of the
Merger Agreement shall be amended to read in full as follows:
"provided, however, that neither Parent and the Parent Subsidiaries,
on the one hand, nor the Company and the Company Subsidiaries, on the
other hand, shall be required to take any actions otherwise required
hereunder if the effect of such actions would have a material adverse
effect on the financial position, business, or results of operations
of the Parent, the Parent Subsidiaries, the Company, the Company
Subsidiaries, Medical Manager and each of the other Subsidiaries of
Medical Manager, all taken as a whole."
6. Change in Name of Counsel. From and after the date hereof, (a) the
reference to "▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P." in Section
7.02(c) shall be amended to be a reference to "▇▇▇▇▇▇ & Bird L.L.P."; and
(b) the reference to "▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P."
and its address in Section 9.02(a) shall be amended to read as follows:
"▇▇▇▇▇▇ & Bird L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: H. ▇▇▇▇▇ ▇▇▇▇ III
C. ▇▇▇▇ ▇▇▇▇▇"
7. Termination. From and after the date hereof, Section 8.01(b) of
the Merger Agreement shall be amended to replace "September 30, 2000" with
"November 30, 2000".
8. Representations and Warranties of the Company. The Company and ASC
hereby jointly represent and warrant to Parent that:
(a) Each of the Company and ASC has all necessary corporate power
and authority to execute and deliver this Amendment and, subject to the
terms and conditions of this Amendment and the Merger Agreement and in
the case of the Company, the approval of the Merger Agreement by the
holders of a
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majority of then outstanding shares of Company Common Stock, to perform
its obligations hereunder and under the Merger Agreement and to
consummate the transactions contemplated by this Amendment and the
Merger Agreement; (b) the execution and delivery of this Amendment by
each of the Company and ASC and the consummation by each of the Company
and ASC of the transactions contemplated by this Amendment and the
Merger Agreement have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the
Company or ASC are necessary to authorize this Amendment or to
consummate the Merger and the other transactions contemplated by this
Amendment and the Merger Agreement (other than, with respect to the
Merger, the approval of the Company Proposal by the holders of a
majority of the then outstanding shares of Company Common Stock and the
filing and recordation of appropriate merger documents as required by
Delaware Law and Massachusetts Law and subject to the terms and
conditions of this Amendment); and (c) this Amendment has been duly and
validly executed and delivered by each of the Company and ASC and,
assuming the due authorization, execution and delivery by Parent,
constitutes a legal, valid and binding obligation of each of the Company
and ASC, enforceable against each of the Company and ASC in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar Laws now or hereafter in effect relating to
creditors' rights and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at
Law).
9. Representations and Warranties of Parent. Parent hereby represents
and warrants to the Company that:
(a) Parent has all necessary corporate power and authority to
execute and deliver this Amendment and, subject to the terms and
conditions of this Amendment and the Merger Agreement and obtaining the
necessary approvals of Parent's stockholders, to perform its obligations
hereunder and under the Merger Agreement and to consummate the Merger
and the other transactions contemplated by this Amendment and the Merger
Agreement; (b) the execution and delivery of this Amendment by Parent
and the consummation by Parent of the Merger and the other transactions
contemplated by this Amendment and the Merger Agreement have been duly
and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Parent are necessary to authorize
this Amendment or to consummate the Merger and the other transactions
contemplated by this Amendment and the Merger Agreement (other than,
with respect to the Merger, the approval of the Parent Proposal by a
majority of the shares of Parent Common Stock present and entitled to
vote at the Parent Stockholders' Meeting, and the filing and recordation
of appropriate merger documents as required by Delaware Law and subject
to the terms and conditions of this Amendment); and (c) this Amendment
has been duly and validly executed and delivered by Parent and, assuming
the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar Laws now or
hereafter in effect relating to creditors' rights and by general
equitable principles (regardless of whether enforceability is considered
in a proceeding in equity or at Law).
10. Effect on Agreement. (a) From and after the date hereof, each
reference in the Merger Agreement or any other agreement in connection
therewith to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Merger Agreement, shall mean and be a reference to
the Merger Agreement as amended by this Amendment.
(b) The Merger Agreement as specifically amended hereby and subject
to the conditions herein, is and shall remain in full force and effect
and is in all respects ratified and confirmed.
(c) The Company hereby waives any rights it has or may have, as of
the date hereof, pursuant to Section 7.03(a) and (b) of the Merger
Agreement, as amended, based solely on the facts and circumstances of
which the Company has Knowledge, as of the date hereof, in respect of
the representations, warranties and covenants made and agreed to by
Parent. Parent hereby waives any rights it has or may have, as of the
date hereof, pursuant to Section 7.02(a) and (b) of the Merger
Agreement,
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as amended, based solely on the facts and circumstances of which Parent
has Knowledge, as of the date hereof, in respect of the representations,
warranties and covenants made and agreed to by the Company. Except as
specifically set forth in this Amendment, the execution and delivery of
this Amendment is not intended, and shall not operate, to affect in any
way any rights or remedies a party may have with respect to the
execution, delivery and performance of the Merger Agreement, including
the representations, warranties and covenants contained therein, all of
which rights or remedies are hereby expressly reserved.
11. Counterparts. This Amendment may be executed and delivered in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to
be an original, but all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
12. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the Laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto to duly authorized, as of the
date first above written.
HEALTHEON/WEBMD CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
General Counsel
AVICENNA SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CAREINSITE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
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