AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER (this “ Amendment ”) is made and entered
into as of May 15, 2009 by and among Bio-Imaging Technologies,
Inc., a Delaware corporation (“ Parent ”),
BioClinica Acquisition, Inc., a Delaware corporation and direct
wholly-owned Subsidiary of Parent ( “Merger Sub”
), and etrials Worldwide, Inc., a Delaware corporation (the “
Company ”), and amends that certain Agreement and Plan
of Merger made and entered into as of May 4, 2009 by and among
Parent, Merger Sub and the Company (the “ Agreement
”). All capitalized terms that are used in this Amendment and
not defined herein shall have the respective meanings ascribed
thereto in the Agreement.
WHEREAS, Parent and the Company deem it
advisable to amend the Agreement to provide for the matters
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual
agreements, covenants and other premises set forth herein, the
mutual benefits to be gained by the performance thereof, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
Section 1.3(a) of the Agreement is hereby
amended and restated as follows:
“ Treatment of Options and Restricted
Stock . (a) Each option to purchase Shares of Company
Common Stock granted under any Company Plan (collectively, the
“ Options ”) that is outstanding and unexercised
(whether or not then exercisable), shall become fully vested and
exercisable immediately prior to the Effective Time, and to the
extent not exercised, shall be canceled at, the Effective Time, and
the holder thereof shall, subject to Section 1.3(c), be
entitled to receive an amount in cash equal to the product of
(i) the excess, if any, of (1) the Cash Value of the
Offer Price, over (2) the exercise price per share of Company
Common Stock subject to such Option, and (ii) the total number
of shares of Company Common Stock subject to such fully vested and
exercisable Option as in effect immediately prior to the Effective
Time (the “ Option Consideration ”) that have
not been exercised. The Option Consideration shall be paid in a
lump sum within five (5) Business Days following the Effective
Time. No later than five (5) days prior to the Effective Time,
the Company shall notify all holders of Options (“ Option
Holders ”) that such Options will become fully vested and
exercisable immediately prior to consummation of the Merger and the
Options will be canceled in exchange for the right to receive the
Option Consideration if not exercised prior to the Effective Time.
No Option Consideration will be paid with respect to any Option
that has an exercise price equal to or greater than the Cash Value
of the Offer Price.”
Section 2.1(a) of the Agreement is hereby
amended and restated as follows:
“ Conversion of Securities . At the
Effective Time, by virtue of the Merger and without any action on
the part of Parent, Merger Sub, the Company or the holders of any
of the following securities, the following shall occur:
(a) subject to Section 2.2, each Share
issued and outstanding immediately prior to the Effective Time
(other than any Dissenting Share
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