Exhibit 2.1
CONFORMED COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER , dated as of May 6, 2008 (this “
Amendment ”), is between WebMD Health Corp., a
Delaware corporation (“ WebMD ”), and HLTH
Corporation, a Delaware corporation (“ HLTH
”).
RECITALS
WHEREAS , the parties hereto
are parties to that certain Agreement and Plan of Merger, dated as
of February 20, 2008 (the “ Merger Agreement
”);
WHEREAS , HLTH is entering
into the HLTH Loan Agreement (as defined below);
WHEREAS , WebMD is entering
into the WebMD Loan Agreement (as defined below);
WHEREAS , WebMD and HLTH
desire to amend the Merger Agreement pursuant to Section 9.04
thereof to the extent provided herein;
WHEREAS , the HLTH Board has
unanimously (i) approved and declared advisable this Amendment
and the transactions contemplated hereby, (ii) declared that
it is in the best interests of the holders of HLTH Common Stock
that HLTH enter into this Amendment, (iii) directed that the
adoption of the Merger Agreement, as amended by this Amendment (as
so amended, the “ Amended Merger Agreement ”) be
submitted to a vote at a meeting of the holders of HLTH Common
Stock, and (iv) recommended that the holders of HLTH Common Stock
adopt the Amended Merger Agreement;
WHEREAS , the WebMD Board,
upon the unanimous recommendation of the Special Committee, has
unanimously (i) approved and declared advisable this Amendment
and the transactions contemplated hereby, (ii) declared that
it is in the best interests of the holders of WebMD Common Stock
that WebMD enter into this Amendment, (iii) directed that the
adoption of the Amended Merger Agreement be submitted to a vote at
a meeting of the holders of WebMD Common Stock, and
(iv) recommended that the holders of WebMD Common Stock adopt
the Amended Merger Agreement; and
WHEREAS , the Merger
Agreement has not yet been submitted for adoption to a vote at a
meeting of the holders of HLTH Common Stock or the holders of WebMD
Common Stock;
NOW, THEREFORE , in
consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound
hereby, WebMD and HLTH hereby agree as follows:
Section 1. Defined
Terms . Each capitalized term used and not otherwise
defined herein shall have the meaning assigned to such term in the
Merger Agreement.
Section 2.
Amendments to Section 1.01 . (a) The
following defined terms are hereby added to
Section 1.01:
“
HLTH Loan Agreement ” means that certain Loan
Agreement, dated as of May 6, 2008, between HLTH and Citigroup
Global Markets Holdings Inc.
“
WebMD Loan Agreement ” means that certain Loan
Agreement, dated as of May 6, 2008, between WebMD and
Citigroup Global Markets Inc.
(b) In Section 1.01, the
last sentence in the definition of “Cash and Cash
Equivalents” is hereby deleted in its entirety and replaced
with the following:
“For
purposes of this definition, “ Cash and Investments
” shall include (i) 75% of the principal amount of the
HLTH Auction Rate Securities held by HLTH and the HLTH Subsidiaries
at the Effective Time and (ii) 70% of the principal amount of
the WebMD Auction Rate Securities held by WebMD and the WebMD
Subsidiaries at the Effective Time; provided , that if the
WebMD Loan Agreement is in full force and effect at the Effective
Time and WebMD has satisfied all conditions precedent to permit
WebMD to borrow a
