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EXHIBIT 10.14
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
December 26, 1996, is by and among Electronic Data Systems Corporation, a
Delaware corporation ("EDS"), Medical Manager Corporation, a Delaware
corporation ("MMC"), and National Medical Systems, Inc., a Florida corporation
("NMS").
RECITALS
WHEREAS, pursuant to a certain Agreement and Plan of
Reorganization, dated as of September 30, 1996 (the "Reorganization
Agreement"), by and among MMC, NMS, NMS Acquisition I Corp., a Delaware
corporation and wholly owned subsidiary of MMC ("Newco"), and the several
stockholders named therein (the "Stockholders"), the parties thereto have
agreed to consummate a transaction involving, among other things, the merger of
Newco with and into NMS (the "Merger");
WHEREAS, MMC has entered into other separate agreements
substantially similar to the Reorganization Agreement (collectively, the "Other
Reorganization Agreements"), each of which is entitled "Agreement and Plan of
Reorganization," with each of RTI Business Systems, Inc., a New York
corporation, Systems Plus, Inc., a California corporation, Systems Plus
Distribution, Inc., a California corporation, Personalized Programming, Inc., a
Florida corporation, Systems Management, Inc., an Indiana corporation, and
their respective stockholders in order to acquire additional medical software
development and distribution companies;
WHEREAS, the Reorganization Agreement, the Other
Reorganization Agreements and the IPO (as hereinafter defined) constitute the
"MMC Plan of Organization;"
WHEREAS, in contemplation of the MMC Plan of Organization, EDS
desires to purchase from NMS, and NMS desires to issue and sell to EDS, a
number of shares (the "NMS Shares") of the common stock, par value $.01 per
share, of NMS ("NMS Common Stock") that, upon consummation of the Merger, will
result in the acquisition by EDS of shares (the "MMC Shares") of the common
stock, par value $.01 per share, of MMC ("MMC Stock") for an aggregate price of
$12,500,000 and a per share price of 93% of the IPO Price (as hereinafter
defined); and
WHEREAS, the parties hereto intend that the closing of the
purchase and sale of the NMS Shares hereunder will occur immediately prior to,
and on the same date as, the closing of the Merger and the IPO;
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AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Amendment No. 2" means the draft dated January 3, 1997 of
Amendment No. 2 to the Registration Statement.
"Closing" means the closing of the sale and purchase of the
NMS Shares pursuant to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"EDS" has the meaning set forth in the Preamble to this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Financial Statements" means the financial statements of MMC,
each of the Founding Companies and their respective consolidated subsidiaries,
including the notes thereto, as contained in the Registration Statement.
"Founding Companies" means, collectively, NMS, together with
each of the other entities with which MMC has entered into the Other
Reorganization Agreements.
"Funding and Consummation Date" means the date upon which each
of the following actions has occurred: (i) the articles or certificates of
merger with respect to the Merger shall be or shall have been filed with the
appropriate state authorities so that they shall be or, as of 8:00 a.m. New
York City time on the Funding and Consummation Date, shall become effective and
the Merger shall thereby be effected, (ii) all transactions contemplated by the
Reorganization Agreement, including without limitation the conversion and
delivery of shares which the Stockholders shall be entitled to receive pursuant
to the Merger in accordance with Section 3 thereof, shall have been
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consummated and (iii) the closing with respect to the IPO shall occur and be
deemed to be completed.
"GAAP" means generally accepted accounting principles, as set
forth in the opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements of the Financial
Accounting Standards Board or in such opinions and statements of such other
entities as shall be approved by a significant segment of the accounting
profession in the United States of America.
"Governmental Authority" means (i) the United States of
America or any state within the United States of America and (ii) any court or
any governmental department, commission, board, bureau, agency or other
instrumentality of the United States of America or of any state within the
United States of America.
"IPO" means the initial public offering of MMC Stock pursuant
to the Registration Statement.
"IPO Price" means the price at which the MMC Stock is sold to
the public in the IPO.
"Law" means any applicable statute, law, ordinance,
regulation, rule, ruling, order, restriction, requirement, writ, injunction,
decree or other official act of or by any Governmental Authority.
"MMC" has the meaning set forth in the Preamble to this
Agreement.
"MMC Plan of Organization" has the meaning set forth in the
Recitals to this Agreement.
"MMC Shares" has the meaning set forth in the Recitals to this
Agreement.
"MMC Stock" has the meaning set forth in the Recitals to this
Agreement.
"Material Adverse Effect" with respect to a Person means a
material and adverse effect on the financial condition, results of operations,
business, properties or prospects of such Person and its consolidated
subsidiaries, taken as a whole.
"Merger" has the meaning set forth in the Recitals to this
Agreement.
"NMS" has the meaning set forth in the Preamble to this
Agreement.
"NMS Common Stock" has the meaning set forth in the Recitals
to this Agreement.
"NMS Shares" has the meaning set forth in the Recitals to this
Agreement.
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"Other Founding Companies" means all of the Founding
Companies other than NMS.
"Other Reorganization Agreements" has the meaning set forth in
the Recitals to this Agreement.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Purchase Price" has the meaning set forth in Section 2.1.
"Registration Statement" means that certain registration
statement on Form S-1 (Registration No. 333- 13101), as amended, filed with the
Commission by MMC with respect to the IPO.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders" has the meaning set forth in the Recitals to
this Agreement.
ARTICLE II
PURCHASE AND SALE OF THE SHARES
2.1 Purchase and Sale of Shares. Subject to the
satisfaction of the terms and conditions herein set forth and in reliance upon
the respective representations and warranties of the parties set forth herein
or in any document delivered pursuant hereto, at the Closing, NMS shall sell to
EDS, free and clear of any liens, claims, charges or encumbrances whatsoever,
and EDS shall purchase from NMS, the number of NMS Shares that will result in
the conversion of such NMS Shares in the Merger into a number of shares of MMC
Stock equal to the quotient obtained by dividing (i) $13,440,860.21 by (ii) the
IPO Price, in exchange for payment to NMS by EDS of $12,500,000 in cash (the
"Purchase Price").
2.2 Closing. The Closing shall take place at the offices
of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
immediately prior to the closing of the Merger on the Funding and Consummation
Date, or at such other time, date and place as may be agreed to in writing by
each of the parties hereto.
2.3 Delivery. At the Closing, NMS shall deliver to EDS,
against payment by EDS of the Purchase Price, one or more certificates
representing the NMS Shares duly issued and in form sufficient to vest title
thereto fully in EDS, free and clear of all liens, claims and encumbrances. At
the effective time of the Merger and on the Funding and Consummation Date, MMC
shall deliver to EDS, upon surrender of the certificate or certificates
referenced in the immediately preceding sentence, one or more certificates
representing the MMC Shares into which the NMS Shares are
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convertible in the Merger, duly issued and in form sufficient to vest title
thereto fully in EDS, free and clear of any liens, claims, charges or
encumbrances whatsoever.
2.4 Payment. At the Closing, EDS shall pay to NMS, by
wire transfer of immediately available funds to an account designated by NMS or
by such other means as may be acceptable to NMS, the Purchase Price.
2.5 Further Assurances. At or after the Closing, the
parties hereto shall execute and deliver such additional documents and take
such additional actions as any party may reasonably deem to be necessary or
advisable in order more fully to consummate the transactions contemplated by
this Agreement and to carry out and effectuate the purposes intended hereby to
be accomplished.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MMC AND NMS
MMC and NMS hereby jointly and severally represent and warrant
to EDS that the following are true and correct as of the date of this Agreement
and will be true and correct at and as of the date of the Closing, in each case
as if made on such date:
3.1 Organization. MMC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
NMS is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida. Each of MMC and NMS is duly qualified
or licensed to do business as a foreign corporation, and in good standing, in
every jurisdiction in which its ownership of property or the conduct of its
business requires such qualification or licensing, except where the failure to
be so qualified or licensed would not have a Material Adverse Effect upon MMC
or NMS, as applicable. True and complete copies of the certificates of
incorporation and bylaws of MMC and NMS, each as amended to date, have been
provided to EDS.
3.2 Authority. Each of MMC and NMS has all requisite
corporate power and authority, as applicable, to carry on its business as
presently conducted, to enter into this Agreement, to issue, sell and deliver
the NMS Shares and the MMC Shares on the terms described in this Agreement, and
to perform its other obligations contemplated by this Agreement.
3.3 Authorization. The execution and delivery of this
Agreement and the performance of the transactions contemplated hereby have been
duly and validly authorized by all requisite corporate action on the part of
each of MMC and NMS and their respective stockholders.
3.4 Binding Agreement. This Agreement has been duly
executed and delivered by each of MMC and NMS and constitutes a legal, valid
and binding obligation of each of them, enforceable against each of them in
accordance with its terms, subject to applicable bankruptcy
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and other similar laws of general application with respect to creditors and
subject to principles of equity and public policy that affect enforceability of
agreements generally.
3.5 No Conflicts. Neither the execution or delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will result in a breach or violation of, or constitute a default under, the
certificate of incorporation, bylaws or other governing documents of MMC or
NMS, or any agreement, indenture or other instrument to which MMC or NMS is a
party or by which either of them are bound or to which any of either of their
properties are subject or, as a result of the MMC Plan of Organization, MMC or
NMS will become a party or by which either of them will become bound or to
which any of either of their properties will be subject. The performance by
MMC or NMS of their respective obligations hereunder violate any Law or result
in the creation or imposition of any lien, charge, claim or encumbrance upon
any property or assets of MMC or NMS. No permit, consent, approval,
authorization or order of, or filing with, any Governmental Authority or other
Person is required in connection with the consummation by MMC and NMS of the
transactions contemplated by this Agreement, except such as have been obtained
and as otherwise contemplated by this Agreement.
3.6 Capitalization.
(a) The authorized capital stock of NMS consists
solely of (i) 25,000,000 shares of NMS Common Stock, of which
7,176,642 shares are issued and outstanding on the date hereof, and
(ii) 5,000,000 shares of convertible redeemable preferred stock, par
value $1.00 per share, of NMS ("NMS Preferred Stock"), of which
100,000 shares are issued and outstanding on the date hereof. No
shares of capital stock of NMS are held in its treasury. All
outstanding shares of capital stock of NMS have been validly issued
and are fully paid and non-assessable and have not been issued in
violation of preemptive or similar rights. Holders of shares of NMS'
capital stock have no preemptive rights. Except for (i) outstanding
warrants for the purchase of an aggregate of 910,000 shares of NMS
Common Stock (the "Outstanding NMS Warrants") and (ii) the outstanding
NMS Preferred Stock, there is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating NMS or any other Person to issue, sell, exchange or
otherwise dispose of, or to purchase, redeem or otherwise acquire,
shares of, or securities convertible into or exchangeable for, capital
stock of NMS, and, except for any shares reserved for issuance upon
any exercise of the Outstanding NMS Warrants or the NMS Preferred
Stock, no shares of capital stock of NMS are reserved for any such
purpose. To the knowledge of NMS, except for the shareholders
agreement identified on Schedule 7.6 of the Reorganization Agreement,
there are no agreements among the stockholders of NMS and any other
Person or among NMS and any other Person limiting or restricting the
free transferability of shares of capital stock of NMS or granting to
any Person a right of first refusal with respect to any such capital
stock.
(b) Except for the transactions contemplated by
this Agreement or the Reorganization Agreement, there are (i) to the
knowledge of NMS, no voting trusts or voting
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agreements or other arrangements among, or irrevocable proxies
executed by, stockholders of NMS, (ii) except for the shareholders
agreement identified on Schedule 7.6 of the Reorganization Agreement,
no existing rights of stockholders to require NMS to register any
securities of NMS or to participate with NMS in any registration by
NMS of its securities, (iii) to the knowledge of NMS, except for the
shareholders agreement identified on Schedule 7.6 of the
Reorganization Agreement, no agreements among stockholders providing
for the purchase or sale of capital stock of NMS and (iv) no
obligations (contingent or otherwise) of NMS to purchase, redeem or
otherwise acquire any shares of its capital stock or any interest
therein or to pay any dividend or make any other distribution in
respect thereof.
(c) Immediately prior to the Funding and
Consummation Date, the authorized capital stock of MMC will consist
solely of (i) 50,000,000 shares of MMC Stock, of which the number of
issued and outstanding shares are as set forth in Amendment No. 1, and
(ii) 500,000 shares of preferred stock, $.01 par value, of which no
shares will be issued and outstanding. Upon and immediately following
the consummation of the Merger and the IPO, EDS will own not less than
4% of the issued and outstanding shares of MMC Stock.
3.7 Validity of the NMS Shares and the MMC Shares.
(a) The issuance, sale and delivery of the NMS
Shares in accordance with this Agreement have been duly authorized by
all necessary corporate action on the part of NMS and its
stockholders, and the NMS Shares when so issued, sold and delivered
against payment therefor in accordance with this Agreement will be
duly and validly issued, fully paid and nonassessable.
(b) The Merger, including the issuance of the MMC
Shares in exchange for the NMS Shares in accordance with the
Reorganization Agreement, has been duly authorized by all necessary
corporate action on the part of MMC and its stockholders, and the MMC
Shares when exchanged for the NMS Shares in accordance with the
provisions of the Reorganization Agreement will be duly and validly
issued, fully paid and nonassessable.
3.8 Absence of Bankruptcy Proceedings. There are no
bankruptcy, reorganization or arrangement proceedings pending against, being
contemplated by, or to the knowledge of MMC or NMS, threatened against, MMC or
NMS.
3.9 Brokers. Except for Xxxxxx Xxxxxxx & Co., no broker
or finder has acted for or on behalf of MMC or NMS in connection with this
Agreement or the transactions contemplated by this Agreement, and no broker or
finder is entitled to any brokerage or finder's fee or commission in respect
thereof based in any way on agreements, arrangements or understandings made by
or on behalf of MMC or NMS.
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3.10 Financial Statements. The Financial Statements
(i) present fairly the financial position of the relevant entities (including,
without limitation, MMC and NMS) and their respective consolidated
subsidiaries as of the dates identified therein, (ii) present fairly the
results of operations, cash flows and changes in stockholders' equity of such
entities and their respective consolidated subsidiaries for the periods
identified therein, and (iii) were prepared in accordance with GAAP
consistently followed throughout the periods involved, except as otherwise
noted therein. MMC and NMS have no material liabilities, contingent or
otherwise, not reflected in the relevant balance sheets (or the notes thereto)
included in the Financial Statements, other than any such liabilities incurred
in the ordinary course of business since September 30, 1996.
3.11 No Material Adverse Change. Since September 30,
1996, there has not been any material adverse change in the financial
condition, results of operations, business, properties or prospects of MMC, NMS
or, to the knowledge of MMC or NMS, any of the Other Founding Companies.
3.12 Amendment No. 2. MMC has furnished EDS true and
complete copies of Amendment No. 2. Amendment No. 2 will comply as to form when
filed in all material respects with the rules and regulations of the Commission
and will not on the date of filing contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3.13 Registration Rights. Except as provided in this
Agreement, the Reorganization Agreement or the Other Reorganization Agreements,
there are no contracts, agreements or understandings between MMC and any person
granting such person the right to require MMC to include any securities of MMC
in a registration statement filed under the Securities Act.
3.14 Offering. Subject to the accuracy of EDS'
representations in Article IV hereof, the offer, sale and issuance of the NMS
Shares as contemplated by this Agreement and the issuance of the MMC Shares
pursuant to the Merger as contemplated by the Reorganization Agreement are each
exempt from the registration requirements of the Securities Act and the
securities laws of any state having jurisdiction with respect to the
transactions contemplated by this Agreement, and none of MMC, NMS or anyone
acting on their behalf has or will take any action that would cause the loss of
such exemptions.
3.15 No Defaults. None of MMC, NMS or, to the knowledge
of MMC or NMS, any Other Founding Company is (a) in violation of any provision
of its charter or bylaws, (b) in breach, violation or default, in any material
respect, of or under any material contract, lease, commitment or instrument to
which it is a party or by which it is bound or to which any of its properties
or assets are subject, and no event has occurred which (whether with or without
notice, lapse of time or the happening or occurrence of any other event) would
constitute such a breach, violation or default or (c) in material violation of
any Law.
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3.16 Litigation. There is no action, suit, proceeding or
investigation pending or, to the knowledge of MMC or NMS, threatened against or
affecting MMC, NMS or any Other Founding Company or any properties or rights of
any of them by or before any Governmental Authority that (i) relates to or
challenges the legality of this Agreement, the Reorganization Agreement, any
Other Reorganization Agreement, the NMS Shares or the MMC Shares to be issued
in connection with the Merger, (ii) would reasonably be expected to have a
Material Adverse Effect upon MMC, NMS or any Other Founding Company (except as
disclosed in Amendment No. 1) or (iii) would reasonably be expected to impair
the ability of MMC, NMS or any Other Founding Company to perform fully on a
timely basis any obligations that it has under this Agreement, the
Reorganization Agreement, any Other Reorganization Agreement, or any documents
related hereto or thereto.
3.17 Compliance with Laws. Each of MMC, NMS and the Other
Founding Companies are in compliance in all material respects with all laws and
regulations in all jurisdictions in which MMC, NMS and the Other Founding
Companies are presently doing business.
3.18 Taxes. All tax returns required to be filed by MMC,
NMS and the Other Founding Companies in any jurisdiction have been so filed,
and all taxes, assessments, fees and other charges shown thereon to be due and
payable have been paid, other than those being contested in good faith.
Neither MMC nor NMS knows of any actual or proposed material additional tax
assessments for any fiscal period against it or any of the Other Founding
Companies. None of MMC's, NMS's or the Other Founding Companies' tax returns
are under audit, and no waivers of the statute of limitations or extensions of
time with respect to any tax returns have been granted to MMC, NMS or any of
the Other Founding Companies.
3.19 ERISA. Assuming the accuracy of the representations
and warranties of EDS contained in Section 4.8 of this Agreement, none of the
execution and delivery of this Agreement, the sale of the NMS Shares pursuant
to this Agreement, or the issuance of the MMC Shares in the Merger pursuant to
the Reorganization Agreement is a prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) on the part of MMC, NMS or
any of the Other Founding Companies that is not exempt by statute, regulation
or class exemption. Each of MMC and NMS is in compliance in all material
respects with all presently applicable provisions of ERISA; no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which MMC or NMS would have any material liability;
neither MMC nor NMS has incurred or expects to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 (whether or not waived) or 4971 of the Code; and
each "pension plan" for which MMC or NMS would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or by failure
to act, that would cause the loss of such qualification.
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3.20 Compliance with Environmental Laws. The business and
properties of MMC, NMS and, to the knowledge of MMC or NMS, each of the Other
Founding Companies have been operated in compliance with all applicable
federal, state or local laws, rules, regulations or orders (collectively,
"Environmental Laws") relating to pollution or protection of the environment
including, without limitation, any law, rule, regulation or order relating to
emissions, discharges, releases or threatened releases ("Releases") of
chemicals, pollutants, contaminants, wastes, petroleum or petroleum products,
toxic substances or hazardous substances ("Pollutants") for which noncompliance
would have a Material Adverse Effect upon MMC or NMS. None of MMC, NMS or any
Other Founding Company has received any written communication, whether from a
Governmental Authority, citizens' group, landowner, employee or otherwise, nor,
to the knowledge of MMC, has MMC, NMS or any Other Founding Company received
any oral communication from a Governmental Authority, alleging that (i) MMC,
NMS or any such Other Founding Company is not in compliance with any
Environmental Law applicable to it and its business and properties, or (ii) any
employee or third party has suffered bodily injury or property damage as a
result of one or more Releases of Pollutants arising out of or resulting from
the operations of MMC, NMS, any Other Founding Company, or prior owners and
operators of their business or property, which allegation, if true, would have
a Material Adverse Effect upon MMC, NMS or such Other Founding Company, as the
case may be. Except as disclosed in Amendment No. 1, none of MMC, NMS or, to
the knowledge of MMC or NMS, any Other Founding Company has any material
obligation to remediate, repair or replace any property, whether real or
personal, owned by MMC, NMS, any Other Founding Company or any third party, as
a result of one or more Releases of Pollutants arising out of or resulting from
the operations of MMC, NMS, or such Other Founding Company, as the case may be,
or prior owners and operators of their business or properties.
3.21 Insurance. MMC, NMS and the Other Founding Companies
are beneficiaries of policies of insurance, issued by insurers of recognized
responsibility, providing adequate coverage to insure the properties and
businesses thereof against such risks and in such amounts as are prudent and
customary in the respective industries of MMC, NMS and the Other Founding
Companies. All premiums due thereon have been paid and no notice of
cancellation has been received with respect thereto.
3.22 Patents, Trademarks, Copyrights, Etc.
(a) MMC, NMS and the Other Founding Companies own
all patents, technology, know-how, processes, trademarks and
copyrights, if any, necessary to conduct their business, or possess
adequate licenses or other rights, if any, therefor, without conflict
with the rights of others, including without limitation The Medical
Manager(R) (the "Proprietary Rights").
(b) MMC, NMS, or such Other Founding Company, as
the case may be, has the right to use the Proprietary Rights without
infringing or violating the rights of any third parties. No consent
of third parties (other than those which have been obtained) is
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required for the use thereof by MMC, NMS or such Other Founding
Company, and no claim has been asserted by any person to the ownership
of or right to use any Proprietary Right or challenging or questioning
the validity or effectiveness of any such license or agreement, and
none of MMC, NMS or such Other Founding Company knows of any basis for
any such claim. Each of the Proprietary Rights is valid and
subsisting, has not been cancelled, abandoned or otherwise terminated
and, if applicable, has been duly issued or filed.
(c) There is no claim that, or inquiry as to
whether, any product, activity or operation of MMC, NMS or any Other
Founding Company infringes upon or involves, or has resulted in the
infringement of, any Proprietary Right of any other person,
corporation or other entity; and no proceedings have been instituted,
are pending or, to the knowledge of MMC and NMS, are threatened which
challenge the rights of MMC, NMS or such Other Founding Company with
respect thereto.
3.23 Accuracy of Information Furnished. No representation
or warranty made by MMC or NMS in this Agreement, the Reorganization Agreement,
any Other Reorganization Agreement or in any other agreement executed pursuant
hereto or thereto, contains any untrue statement of material fact or omits to
state any material fact necessary to make such statements, in light of the
circumstances under which they were made, not false or misleading.
3.24 Accuracy of Representations and Warranties in Other
Agreements. All of the representations and warranties made by MMC or NMS in
the Reorganization Agreement and the Other Reorganization Agreements and, to
the knowledge of MMC and NMS, all of the representations and warranties in such
agreements made by the other parties thereto, were true and correct when made
and remain true and correct on the date hereof, with the same force and effect
as if made on the date hereof.
3.25 Direct Ownership of Assets. Substantially all of the
properties and assets of each of the Founding Companies used in connection with
their respective businesses are owned directly by such Founding Companies and
not through subsidiaries or other Persons.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF EDS
EDS hereby represents and warrants to NMS and MMC that the
following are true and correct as of the date of this Agreement and will be
true and correct at and as of the date of the Closing, in each case as if made
on such date:
4.1 Organization. EDS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
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4.2 Authority. EDS has all requisite corporate
power and authority to enter into this Agreement and the other
documents and agreements contemplated hereby, to purchase the Shares
on the terms described in this Agreement, and to perform its other
obligations contemplated by this Agreement.
4.3 Authorization. The execution and delivery of this
Agreement and the performance of the transactions contemplated hereby have been
duly and validly authorized by all requisite corporate action on the part of
EDS.
4.4 Binding Agreement. This Agreement has been duly
executed and delivered by EDS and constitutes a legal, valid and binding
obligation of EDS enforceable against EDS in accordance with its terms, subject
to bankruptcy and other similar laws of general application with respect to
creditors and subject to principles of equity and public policy that affect
specific enforceability of agreements generally.
4.5 No Conflicts. Neither the execution or delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will result in a breach or violation of, or constitute a default under, the
certificate of incorporation or bylaws of EDS, or any agreement, indenture or
other instrument to which EDS is a party or by which EDS is bound or to which
any of its properties is subject, nor will the performance by EDS of its
obligations hereunder violate any Law or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or assets of EDS.
No permit, consent, approval, authorization or order of any Governmental
Authority or other Person is required in connection with the consummation by
EDS of the transactions contemplated by this Agreement, except such as have
been obtained and as otherwise contemplated by this Agreement.
4.6 No Brokers. No broker or finder has acted for or on
behalf of EDS in connection with this Agreement or the transactions
contemplated by this Agreement, and no broker or finder is entitled to any
brokerage or finder's fee or commission in respect thereof based in any way on
agreements, arrangements or understandings made by or on behalf of EDS.
4.7 Accredited Investor; Investment Intent. EDS is an
"accredited investor" within the meaning of Rule 501 under the Securities Act.
EDS is acquiring the NMS Shares for its own account and not for distribution or
resale, with no present intention of distributing or reselling the NMS Shares
or any part thereof; provided, however, that the disposition of EDS' property,
including without limitation the NMS Shares, shall at all times remain within
EDS' control.
4.8 ERISA. No part of the funds used by EDS to purchase
the NMS Shares hereunder constitutes assets allocated to any "separate account"
maintained by EDS in which any "employee benefit plan" (or its related trust)
has any interest (as such terms are defined in Section 3 of ERISA).
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ARTICLE V
PRE-CLOSING COVENANTS
Each of MMC and NMS hereby agrees that from and after the date
of execution of this Agreement and through the Funding and Consummation Date it
will comply with each of the following covenants:
5.1 Additional Actions. Neither MMC nor NMS shall take
any action that would adversely affect, or fail to take any action that would
result in an adverse effect upon, the condition (financial or otherwise),
business, operations, assets or prospects of NMS or MMC without the prior
written consent of EDS.
5.2 Access. NMS and MMC shall permit EDS and their
authorized agents or representatives reasonable access to, and make available
for inspection, all of the assets and business of NMS, MMC and the Other
Founding Companies, including their books and records, employees, customers and
suppliers, and shall furnish EDS all documents, records and information with
respect to the affairs of NMS, MMC and the Other Founding Companies as EDS and
its agents or representatives may reasonably request.
5.3 Notification of Material Adverse Change. Prior to
the Funding and Consummation Date, NMS and MMC shall promptly inform EDS in
writing of any material adverse change in the condition (financial or
otherwise), business, operations, assets or prospects of NMS, MMC or any of the
Other Founding Companies of which they become aware.
5.4 Obtainment of Consents. As soon as practicable after
the execution of this Agreement, but in any event prior to the Closing, NMS and
MMC will use their respective best efforts to secure all necessary approvals
and consents of third parties to the consummation of the transactions
contemplated by this Agreement and the Reorganization Agreement.
5.5 Certain Transactions. Except as contemplated by the
Reorganization Agreement, the Other Reorganization Agreements and the
Registration Statement, neither NMS nor MMC will seek or solicit indications of
interest, or seek or solicit offers, or negotiate or enter into any agreements,
from or with any other person with respect to the sale of substantially all of
the assets of NMS, MMC or any of the Other Founding Companies as an entirety,
the sale of all of the capital stock NMS, MMC or any of the Other Founding
Companies, the merger or consolidation of NMS, MMC or any of the Other Founding
Companies or otherwise relating to the sale of the business of NMS, MMC or the
Other Founding Companies.
5.6 Registration Statement. MMC will provide EDS with
advance drafts of any and all versions of, or amendments or exhibits to, the
Registration Statement that contain references to EDS or the transactions
contemplated by this Agreement prior to the filing thereof with the Commission;
provided, that if due to time constraints it is impracticable to provide
complete drafts of any such version, MMC will provide EDS with only those
portions of such drafts that contain
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references to EDS and the transactions contemplated by this Agreement, together
with all such other portions as are reasonably necessary for EDS' review of
such references in context. MMC will allow EDS a reasonable amount of time to
review and comment on such portions of the Registration Statement. MMC will
not file any Registration Statement containing any references to EDS without
EDS' prior approval.
ARTICLE VI
REGISTRATION RIGHTS
6.1 Piggyback Registration Rights. At any time following
the Funding and Consummation Date, whenever MMC proposes to register any MMC
Stock for its own or others' account under the Securities Act for a public
offering, other than (i) any shelf registration of shares to be used as
consideration for acquisitions of additional businesses by MMC, (ii)
registrations relating to employee benefit plans and (iii) registrations
relating to rights offerings made to the stockholders of MMC, MMC shall give
EDS prompt written notice of its intent to do so. Upon the written request of
EDS given within 30 days after receipt of such notice, MMC shall cause to be
included in such registration all of the MMC Stock which EDS requests, provided
that MMC shall have the right to reduce the number of shares included in such
registration to the extent that inclusion of such shares would, in the opinion
of tax counsel to MMC or its independent auditors, jeopardize the status of the
transactions contemplated by the Reorganization Agreement and by the
Registration Statement as a tax-free reorganization. In addition, if MMC is
advised in writing in good faith by any managing underwriter of an underwritten
offering of the securities being offered pursuant to any registration statement
under this Section 6.1 that the number of shares to be sold by persons other
than MMC is greater than the number of such shares which can be offered without
adversely affecting the offering, MMC may reduce pro rata the number of shares
offered for the accounts of such persons (based upon the number of shares
proposed to be sold by each such person) to a number deemed satisfactory by
such managing underwriter, provided, that, for each such offering made by MMC
after the IPO, such reduction shall be made first by reducing the number of
shares to be sold by persons other than EDS, the Stockholders and the
stockholders of the Other Founding Companies (collectively, EDS, the
Stockholders and the stockholders of the Other Founding Companies being
referred to herein as the "Founding Stockholders"), and thereafter, if a
further reduction is required, by reducing the number of shares to be sold by
the Founding Stockholders.
6.2 Demand Registration Rights. At any time after the
date that is two years after the Funding and Consummation Date, the holders of
a majority of the shares of MMC Stock issued to the Founding Stockholders
pursuant to the Reorganization Agreement and the Other Reorganization
Agreements that have not been previously registered or sold and that are not
entitled to be sold under Rule 144(k)(or any successor provision) promulgated
under the Securities Act may request in writing that MMC file a registration
statement under the Securities Act covering the registration of shares of MMC
Stock issued to such stockholders (including any stock issued as (or issuable
upon the conversion or exchange of any convertible security, warrant, right or
other security that is issued by MMC as) a dividend or other distribution with
respect to, or in exchange for, or in replacement of such MMC Stock) then held
by such stockholders (a "Demand Registration").
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Within ten days of the receipt of such request, MMC shall give written notice
of such request to all other of such stockholders and shall, as soon as
practicable but in no event later than 45 days after notice from any such
stockholder, file and thereafter use its best efforts to cause to become
effective a registration statement covering all such shares. MMC shall be
obligated to effect only one Demand Registration for all such stockholders and
will keep such Demand Registration current and effective for not less than 120
days (or such shorter period as is required to sell all of the shares
registered thereon).
Notwithstanding the foregoing paragraph, following such a
demand a majority of MMC's disinterested directors (i.e., directors who have
not demanded or elected to sell shares in any such public offering) may defer
the filing of the registration statement for a 30 day period.
If at the time of any request for a Demand Registration MMC
has plans to file within 60 days after such request a registration statement
covering the sale of any of its securities in a public offering under the
Securities Act, no registration of the MMC Stock held by the Founding
Stockholders shall be initiated under this Section 6.2 until 90 days after the
effective date of such registration unless MMC is no longer proceeding
diligently to effect such registration; provided that MMC shall provide the
Founding Stockholders the right to participate in such public offering pursuant
to, and subject to, Section 6.1 hereof.
In addition, if the stockholders offering shares are advised
in writing in good faith by any managing underwriter of an underwritten
offering of the securities being offered pursuant to any registration statement
under this Section 6.2 that the number of shares to be sold by such
stockholders is greater than the number of such shares which can be offered
without adversely affecting the offering, the stockholders offering shares may
reduce pro rata the number of shares offered for the account of each
stockholder (based upon the number of shares proposed to be sold by each such
stockholder) to a number deemed satisfactory by such managing underwriter.
6.3 Registration Procedures. All expenses incurred in
connection with the registrations under this Article VI (including all
registration, filing, qualification, legal, printer and accounting fees, but
excluding underwriting commissions and discounts), shall be borne by MMC. In
connection with registrations under Sections 6.1 and 6.2, MMC shall (i) use its
best efforts to prepare and file with the Commission, as soon as reasonably
practicable, a registration statement with respect to the MMC Stock and use its
best efforts to cause such registration to promptly become and remain effective
for a period of at least 120 days (or such shorter period during which holders
shall have sold all MMC Stock which they requested to be registered); (ii) use
its best efforts to register and qualify the MMC Stock covered by such
registration statement under applicable state securities laws as the holders
shall reasonably request for the distribution of the MMC Stock; and (iii) take
such other actions as are reasonable and necessary to comply with the
requirements of the Securities Act and the regulations thereunder.
6.4 Underwriting Agreement. In connection with each
registration pursuant to Sections 6.1 and 6.2 covering an underwritten
registered public offering, MMC and each
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participating holder agree to enter into a written agreement with the managing
underwriters in such form and containing such provisions as are customary in
the securities business for such an arrangement between such managing
underwriters and companies of MMC's size and investment stature, including
indemnification.
6.5 Availability of Rule 144. Notwithstanding any other
provision of this Article VI, MMC shall not be obligated to register shares of
MMC Stock held by EDS at any time when the resale provisions of Rule 144(k) (or
any successor provision) promulgated under the Securities Act are available to
EDS for such shares. In such event, MMC shall be required to deliver to EDS an
opinion of counsel reasonably acceptable to EDS as to the availability of such
resale provisions.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to the Obligation of EDS to Close. The
obligation of EDS to consummate the transactions contemplated hereby shall be
subject to the satisfaction of each of the following conditions:
(a) The representations and warranties made by
NMS and MMC herein shall be true and correct when made, and shall be
true and correct as of the Closing as if made at the Closing.
(b) All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by NMS
and MMC at or prior to the Closing shall have been performed or
complied with in all material respects.
(c) There shall have been no material adverse
change in the condition (financial or otherwise), business,
operations, assets or prospects of MMC or NMS.
(d) As of the Closing, all of the conditions to
closing contained in the Reorganization Agreement and each of the
Other Reorganization Agreements shall have been satisfied in
accordance with their terms and without waiver and each of NMS, MMC
and the Other Founding Companies shall be prepared to
contemporaneously effect the closing of the Merger and the IPO upon
the terms provided in the Reorganization Agreement and the Other
Reorganization Agreements and as described in Amendment No. 1.
(e) At the Closing, each of NMS and MMC shall
have delivered to EDS a certificate, executed by its chief executive
officer, dated the date of the Closing, certifying to the fulfillment
of the conditions specified in Sections 7.1(a), (b), (c) and (d) of
this Agreement.
(f) At the Closing, MMC shall have delivered to
EDS copies of each of the following, in each case certified to be in
full force and effect on the date of the Closing
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by the Secretary of MMC: (i) the Certificate of Incorporation of
MMC certified by the Secretary of State of the State of Delaware as of
a date not more than five days prior to the Closing; (ii) the Bylaws
of MMC; and (iii) resolutions of the Board of Directors of MMC
authorizing the execution, delivery and performance of this Agreement,
the Reorganization Agreement, the Other Reorganization Agreements,
the transactions contemplated hereby and thereby (including without
limitation the consummation of the Merger), the issuance and sale of
the MMC Shares and the IPO.
(g) At the Closing, NMS shall have delivered to
EDS copies of each of the following, in each case certified to be in
full force and effect on the date of the Closing by the Secretary of
NMS: (i) the Certificate of Incorporation of NMS certified by the
Secretary of State of the State of Florida as of a date not more than
five days prior to the Closing; (ii) the Bylaws of NMS; and (iii)
resolutions of the Board of Directors of NMS authorizing the
execution, delivery and performance of this Agreement and the
Reorganization Agreement, and the transactions contemplated hereby and
thereby, and the issuance and sale of the NMS Shares.
(h) At the Closing, EDS shall have received the
legal opinion of Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx &
Xxxxxx, counsel for NMS, dated the date of the Closing, in form and
content reasonably acceptable to EDS.
(i) At the Closing, EDS shall have received the
legal opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for MMC, dated
the date of the Closing, in form and content reasonably acceptable to
EDS.
(j) As of the Closing, no suit, action or other
proceeding (excluding any such matter initiated by EDS) shall be
pending or threatened before any Governmental Authority seeking to
prohibit the Closing or the MMC Plan of Organization, or seeking
damages against EDS, MMC or NMS as a result of the consummation of
this Agreement or the MMC Plan of Organization.
(k) As of the Closing, all authorizations,
approvals or permits of, or filings with any Governmental Authority,
including state securities or "blue sky" offices, that are required by
Law in advance of the lawful sale and issuance of the NMS Shares and
the MMC Shares, shall have been duly obtained, and shall be effective
as of the Closing.
(l) As of the Closing, there shall have been no
material adverse change to the Registration Statement since Amendment
No. 2.
7.2 Conditions to the Obligations of MMC and NMS to
Close. The obligations of each of MMC and NMS to consummate the transactions
contemplated hereby shall be subject to the satisfaction of each of the
following conditions:
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(a) The representations and warranties made by
EDS herein shall be true and correct when made, and shall be true and
correct as of the Closing as if made at the Closing.
(b) All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by EDS at
or prior to the Closing shall have been performed or complied with in
all material respects.
(c) At the Closing, EDS shall have delivered to
MMC and NMS a certificate, executed by a duly authorized officer of
EDS, dated the date of the Closing, certifying to the fulfillment of
the conditions specified in Sections 7.2(a) and (b) of this Agreement.
(d) As of the Closing, no suit, action or other
proceeding (excluding any such matter initiated by MMC, NMS or any
Other Founding Company) shall be pending or threatened before any
Governmental Authority seeking to restrain prohibit the Closing or the
MMC Plan of Organization or seeking damages against EDS, MMC or NMS as
a result of the consummation of this Agreement or the MMC Plan of
Reorganization.
ARTICLE VIII
TERMINATION
8.1 Grounds for Termination. This Agreement may be
terminated at any time prior to Closing:
(a) By mutual agreement of MMC, NMS and EDS;
(b) By any of MMC, NMS or EDS if the Closing
shall not have occurred on or before March 1, 1997, provided, however,
that no party shall be entitled to terminate this Agreement under this
Section 8.1(b) if the Closing has failed to occur because such party
negligently or willfully failed to perform or observe in any material
respect its covenants and agreements hereunder; or
(c) By EDS, if it becomes reasonably apparent to
EDS that MMC has determined not to consummate the IPO.
8.2 Effect of Termination. In the event that the Closing
does not occur as a result of any party hereto exercising its rights to
terminate pursuant to this Article VIII, then this Agreement shall be null and
void and, except as expressly provided herein, no party shall have any rights
or obligations under this Agreement, except that nothing herein shall relieve
any party from liability for any willful or negligent failure to perform or
observe in any material respect any agreement or covenant contained herein. In
the event the termination of this Agreement results from the willful or
negligent failure of any party to perform in any material respect any agreement
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or covenant herein, then the other parties shall be entitled to all remedies
available at law or in equity and shall be entitled to recover court costs and
reasonable attorneys' fees in addition to any other relief to which such party
may be entitled.
ARTICLE IX
ADDITIONAL COVENANTS
9.1 Board Observer. From and after the Merger and for so
long as EDS owns at least 25% of the MMC Shares received by EDS in connection
with the Merger, EDS shall have the right to designate an observer to attend
all meetings of the Board of Directors of MMC and EDS shall be given advance
notice of all such meetings, and all advance materials, of the same character
and at the same time as such notice and materials are provided to members of
the Board of Directors of MMC.
9.2 EDI Relationship. MMC hereby agrees that it will
afford EDS preferential treatment in the creation of an electronic data
interchange ("EDI") relationship with respect to government sector and Blue
Cross/Blue Shield matters that leverages the physician base of MMC and its
subsidiaries and EDS' government sector and Blue Cross/Blue Shield
relationships. Both parties agree that such a relationship shall not be to the
financial or competitive detriment of MMC and its subsidiaries. MMC further
agrees that prior to the first anniversary of the Funding and Consummation
Date, neither it, any of the Founding Companies nor any future subsidiary will
enter into any exclusive relationship for EDI services involving the government
sector and Blue Cross/Blue Shield unless (i) EDS has publicly announced that it
will no longer provide EDI services or (ii) in the good faith judgment of MMC,
EDS has materially and repeatedly failed to provide satisfactory services to
MMC. Notwithstanding anything to the contrary in the previous sentence, a
future subsidiary (which is not a Founding Company or a subsidiary thereof as
of the date of the Merger) may be a party to such a relationship if such
relationship existed prior to its acquisition by MMC or a subsidiary of MMC and
such relationship was not created in anticipation of such acquisition. MMC and
EDS agree to cooperate in good faith to establish a business relationship for
the provision of EDI and other services within 90 days following the Funding
and Consummation Date.
9.3 Return of Funds. If for any reason whatsoever EDS
tenders the Purchase Price pursuant to this Agreement and the Merger is not
thereafter consummated in the manner contemplated by this Agreement and
described in Amendment No. 1, then MMC and NMS shall cause the Purchase Price
to be immediately returned to EDS by wire transfer of immediately available
funds to an account identified to MMC or NMS in writing by EDS. MMC and NMS
hereby represent and warrant that there is and will be no impediment to their
compliance with this Section 9.3.
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ARTICLE X
MISCELLANEOUS
10.1 Consent to Amendments; Waivers. Except as otherwise
expressly provided herein, the provisions of this Agreement shall not be
amended or waived except upon the written agreement of NMS, MMC and EDS.
10.2 No Assignment. This Agreement may not be assigned by
EDS to any Person other than a Person in which EDS owns a majority economic or
voting interest without the prior written consent of NMS and MMC. This
Agreement may not be assigned by NMS or MMC without the prior written consent
of EDS. Any purported or attempted assignment in violation of this Section
10.2 shall be void ab initio.
10.3 Severability. Whenever possible, each provision of
this Agreement shall be interpreted so as to be effective and valid under
applicable law. If any provision of this Agreement is held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
10.4 Headings. The descriptive headings of this Agreement
are inserted for convenience of reference only and do not constitute a part of
and shall not affect the interpretation of this Agreement.
10.5 Notices. Any notices required or permitted to be
sent hereunder shall be delivered personally or mailed by certified mail,
return receipt requested, or delivered by overnight courier service to the
following addresses, or such other address as any party hereto designates by
written notice to the others and shall be deemed to have been given upon
delivery, if delivered personally, three days after mailing, if mailed, or one
business day after delivery to the courier, if delivered by overnight courier
service:
If to NMS, to:
National Medical Systems, Inc.
c/o Medical Manager Corporation
0000 X. Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, President
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With a copy to:
Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx & Xxxxxx
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
If to MMC, to:
Medical Manager Corporation
0000 X. Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Chief Executive Officer
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
If to EDS, to:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Attention: President Healthcare SBU
With a copies to:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Attention: General Counsel
and
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Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
10.6 Governing Law. This Agreement shall be governed in
accordance with the laws of the State of Texas, without giving effect to the
choice of law principles thereof.
10.7 Entire Agreement. This Agreement constitutes the
entire agreement of the parties concerning the transactions contemplated
hereby, and supersedes all prior agreements and understandings, written or
oral, regarding the subject matter hereof.
10.8 Expenses. Each party to this Agreement shall bear
and be responsible for its own costs and expenses with respect to this
Agreement and the transactions contemplated hereby, including without
limitation fees of its respective legal counsel, consultants and accountants;
provided, however, that NMS shall pay the fees and expenses of Xxxxxx Xxxxxxx &
Co. earned or incurred in connection with its representation associated with
this Agreement and the transactions contemplated hereby.
10.9 Indemnification.
(a) NMS and MMC shall jointly and severally
indemnify, defend and hold harmless EDS and EDS' stockholders,
directors, officers, agents, attorneys and affiliates (each, an "EDS
Indemnified Person"), from and against any and all liabilities,
losses, damages, costs and expenses of any kind (including, without
limitation, reasonable fees and expenses of counsel incurred by such
EDS Indemnified Person in connection with any investigative,
administrative or judicial proceeding, whether or not any such EDS
Indemnified Person shall be designated a party thereto) which may be
incurred by such EDS Indemnified Person as a result of any
misrepresentation or breach of warranty or the nonperformance of any
obligation on the part of MMC or NMS under this Agreement or that
arises out of or is based upon any untrue statement or omission or
alleged untrue statement or omission made in any registration
statement or prospectus relating to the IPO or any registration
statement or prospectus contemplated by Article VI of this Agreement;
provided, that no EDS Indemnified Person shall have the right to be
indemnified under this Section 10.9 for liabilities, losses,
damages, costs and expenses arising out of or based upon any untrue
statement or omission or alleged untrue statement or omission made in
any registration statement or prospectus relating to the IPO or any
registration statement or prospectus contemplated by Article VI of
this Agreement in reliance upon and in conformity with information
furnished for inclusion therein by EDS.
(b) EDS shall indemnify, defend and hold harmless
MMC and NMS and their respective stockholders, directors, officers,
agents, attorneys and affiliates (each, a "MMC/NMS Indemnified
Person"), from and against any and all liabilities, losses, damages,
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costs and expenses of any kind (including, without limitation,
reasonable fees and expenses of counsel incurred by such MMC/NMS
Indemnified Person in connection with any investigative,
administrative or judicial proceeding, whether or not any such MMC/NMS
Indemnified Person shall be designated a party thereto) which may be
incurred by such MMC/NMS Indemnified Person as a result of any
misrepresentation or breach of warranty or the nonperformance of any
obligation on the part of EDS under this Agreement or that arises out
of or is based upon any untrue statement or omission or alleged untrue
statement or omission made by MMC or NMS in any registration statement
or prospectus relating to the IPO or any registration statement or
prospectus contemplated by Article VI of this Agreement in reliance
upon and in conformity with information furnished for inclusion
therein by EDS.
(c) Notwithstanding the other provisions of this
Section 10.9, no Person shall have the right to be indemnified
hereunder for liabilities, losses, damages, costs and expenses
resulting from his or its gross negligence, wilful misconduct or
wilful breach of this Agreement.
10.10 Public Announcements. Except as set forth in the
following sentence, the parties to this Agreement agree that prior to making
any public announcement or statement with respect to the transactions
contemplated by this Agreement, the party desiring to make such public
announcement or statement shall consult with the other party and exercise
reasonable efforts to (i) agree upon the text of a joint public announcement or
statement to be made by both of such parties or (ii) obtain approval of the
other parties to the text of a public announcement or statement to be made
solely by NMS, MMC or EDS, as the case may be. Except as provided in Section
5.6, nothing contained in this Section 10.10 shall be construed to require any
party to obtain approval of any other party to disclose information with
respect to any disclosure (i) required by applicable law or by any applicable
rules, regulations or orders of any Governmental Authority having jurisdiction
or (ii) necessary to comply with disclosure requirements of any applicable
stock exchange.
10.11 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or in any Related
Agreement or in any certificate, document, or instrument delivered pursuant to
this Agreement shall survive only until the close of business on the date that
is two years after the date of the Closing, provided that the representations
and warranties of MMC and NMS set forth in Sections 3.14, 3.18, 3.19 and 3.20
shall survive until the applicable statute of limitations period has expired
and the representations and warranties of MMC and NMS set forth in Sections
3.3, 3.4, 3.6, and 3.13 (in the case of Section 3.13, solely with respect to
the rights granted under Section 6.2) shall survive forever and without any
limit upon duration.
10.12 No Third Party Beneficiaries. Except as otherwise
provided, this Agreement has been and is made solely for the benefit of and
shall be binding upon (i) NMS, (ii) MMC, (iii) EDS, (iv) their respective
successors and assigns to the extent permitted in Section 10.2 hereof and (v)
the Indemnified Parties to the extent provided in Section 10.9 hereof; and no
other person shall acquire or have any rights under or by virtue of this
Agreement.
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10.13 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and all of which together shall
constitute one and the same instrument.
10.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES
TRIAL BY JURY IN ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY ANY COURT OF
COMPETENT JURISDICTION.
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EXHIBIT 10.14
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EDS:
---
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
------------------------------------
Title: Division Vice President
-----------------------------------
Health Care SBU
NMS:
---
NATIONAL MEDICAL SYSTEMS, INC.
By: /s/ Xxxx Xxxx
--------------------------------------
Name: Xxxx Xxxx
------------------------------------
Title: President
-----------------------------------
MMC:
---
MEDICAL MANAGER CORPORATION
By: /s/ Xxxx Xxxx
--------------------------------------
Name: Xxxx Xxxx
------------------------------------
Title: President
-----------------------------------
