Exhibit (d)(5)
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated October 19, 2000 (this "Amendment"), to the
Agreement and Plan of Merger, dated as of August 30, 2000 (the "Merger
Agreement"), by and among Electronics For Imaging, Inc., a Delaware corporation
("Parent"), Vancouver Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Purchaser"), and Splash Technology Holdings, Inc.,
a Delaware corporation (the "Company"). Capitalized terms used and not defined
herein shall have the meaning ascribed to such terms in the Merger Agreement.
WHEREAS, the board of directors of each of Parent, Purchaser and the
Company previously approved, and deemed it fair to, advisable and in the best
interests of its respective corporation and stockholders to consummate the
acquisition of the Company by Parent upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, a class action lawsuit (the "Lawsuit") was filed against the
Company and its directors on August 31, 2000; and
WHEREAS, in connection with settling the Lawsuit, the officers of Parent
and the Company have agreed, on behalf of their respective corporations, to make
certain amendments to the Merger Agreement; and
WHEREAS, the board of directors of each of Parent, Purchaser and the
Company has approved, and deems it fair to, advisable and in the best interests
of its respective corporation and stockholders that such corporation agree to
make certain amendments to the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements in this Amendment, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1 The definition of "Superior Proposal" set forth in Section 1.1
shall be deleted in its entirety and replaced with the following:
"Superior Proposal" means an unsolicited Acquisition Proposal (but changing
the fifteen percent amount in clause (a)(ii) of the definition of
Acquisition Proposal to fifty percent) which satisfies both of the
following:
(x) such entity or group has, on an unsolicited basis, submitted
a bona fide Acquisition Proposal in writing to the board of directors
of the Company which the board of directors of the Company determines
in good faith, consistent with advice of an independent investment
banker, (i) is capable of being and likely to be funded on the
disclosed terms and (ii) is likely to be consummated in accordance
with its terms; and
(y) the board of directors of the Company determines in good
faith (A) after consultation with outside legal counsel, that failure
to take such action would likely be contrary to its fiduciary duties
to the Company's stockholders under applicable law and (B) that such
Acquisition Proposal is superior, from a financial point of view, to
the Transactions, after taking into account and consistent with advice
of the Financial Advisor as to superiority of such Acquisition
Proposal.".
Section 1.2 The definition of "Termination Fee" set forth in Section 1.1
shall be deleted in its entirety.
Section 1.3 The first sentence of Section 2.2(a) shall be deleted in its
entirety and replaced with the following:
"As soon as practicable on the date the Offer is commenced, the Company
shall file, with the SEC, the Schedule 14D-9, which shall contain the
recommendation referred to in Section 4.5(c).".
Section 1.4 Section 6.4 shall be deleted in its entirety and replaced with
the following:
"Section 6.4 Competing Transaction. The Company will promptly, and in
any event within twenty-four hours, notify Parent of the receipt of any
proposal, discussion, negotiation or inquiry received by the Company, any
Company Subsidiary or any of their respective representatives, and the Company
will promptly, and in any event within twenty-four hours, communicate to Parent
the terms of any proposal, discussion, negotiation or inquiry which it, any
Company Subsidiary or any of their respective representatives may receive (and
will promptly, and in any event within twenty-four hours, provide to Parent
copies of any written materials received by the Company, any Company Subsidiary
or their respective representatives in connection with such proposal,
discussion, negotiation or inquiry) and the identity of the party making such
proposal or inquiry or engaging in such discussion or negotiation. The Company
will promptly provide to Parent any non-public information concerning the
Company provided to any other party which was not previously provided to
Parent.".
Section 1.5 Section 6.9 shall be deleted in its entirety and replaced with
the following:
"Section 6.9 Actions Regarding the Rights Agreement. The Company shall
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not modify or waive, except as specifically provided herein, the terms of its
Rights Agreement, or take any action to redeem the Rights, except in connection
with its entering into an Acquisition Proposal pursuant to and in compliance
with Section 6.4.".
Section 1.6 Section 8.1(c)(ii) shall be deleted in its entirety and
replaced with the following:
"(ii) in connection with entering into a definitive agreement
concerning an Acquisition Proposal, provided, that the Company has complied
with all provisions of Section 6.4, including the notice provisions
therein;".
Section 1.7 Section 9.1 shall be deleted in its entirety and replaced with
the following:
"Section 9.1 Fees and Expenses. Except as specifically provided to the
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contrary in this Agreement, all costs and expenses incurred in connection with
this Agreement and the consummation of the Transactions shall be paid by the
party incurring such expenses.".
ARTICLE II
MISCELLANEOUS
Section 2.1 The Confidentiality Agreement, the Tender and Voting
Agreement, the Merger Agreement, including the annexes attached thereto and the
Company Disclosure Letter, and this Amendment, constitute the entire agreement
and supersede all prior agreements, negotiations, arrangements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof.
Section 2.2 This Amendment may be executed in one or more counterparts
(whether delivered by facsimile or otherwise), each of which shall be considered
one and the same agreement and shall become effective when two or more
counterparts have been signed by each of the parties and delivered to the other
parties.
Section 2.3 This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law.
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized as
of the date first written above.
ELECTRONICS FOR IMAGING, INC.
By /s/ Guy Gecht
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Name: Guy Gecht
Title: Chief Executive Officer
VANCOUVER ACQUISITION CORP.
By /s/ James Etheridge
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Name: James Etheridge
Title: Vice President, Secretary
and General Counsel
SPLASH TECHNOLOGY HOLDINGS, INC.
By /s/ Kevin K. Macgillivray
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Name: Kevin K. Macgillivray
Title: Chief Executive Officer