EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
EMAGEON, INC.,
EMAGEON-UV DEVELOPMENT CORPORATION,
ULTRAVISUAL MEDICAL SYSTEMS CORPORATION,
AND
XXXX XXXXXXX, AS STOCKHOLDERS' REPRESENTATIVE
APRIL 30, 2003
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SECTION 1. CERTAIN DEFINITIONS; INTERPRETATION......................................................... 1
1.1. Certain Definitions......................................................................... 1
1.2. Interpretation............................................................................. 10
SECTION 2. THE MERGER; EFFECTIVE TIME................................................................. 10
2.1. The Merger................................................................................. 10
2.2. Effective Time............................................................................. 10
SECTION 3. THE SURVIVING CORPORATION.................................................................. 11
3.1. Certificate of Incorporation............................................................... 11
3.2. Bylaws..................................................................................... 11
3.3. Directors.................................................................................. 11
3.4. Officers................................................................................... 11
SECTION 4. MERGER CONSIDERATION....................................................................... 11
4.1. Merger Consideration....................................................................... 11
4.2. Exchange and Payment Procedures; Share Exchange............................................ 12
4.3. Dissenting Shares.......................................................................... 14
4.4. Treatment of Warrants and Stock Options.................................................... 14
SECTION 5. CLOSING; DELIVERIES........................................................................ 15
5.1. Closing.................................................................................... 15
5.2. Filings and Deliveries..................................................................... 15
SECTION 6. CONDITIONS PRECEDENT TO CLOSING............................................................ 16
6.1. Conditions to Obligations of Emageon and Merger Sub to Close............................... 16
6.2. Conditions to Obligations of Ultravisual to Close.......................................... 18
6.3. Additional Action.......................................................................... 21
6.4. Effects of the Merger...................................................................... 21
6.5. Tax Consequences........................................................................... 21
SECTION 7. REPRESENTATIONS AND WARRANTIES OF ULTRAVISUAL.............................................. 21
7.1. Existence.................................................................................. 21
7.2. Authority; Inconsistent Obligations........................................................ 22
7.3. No Violation; Compliance with Laws......................................................... 22
7.4. No Subsidiaries............................................................................ 22
7.5. Capitalization............................................................................. 22
7.6. Consents................................................................................... 23
7.7. Possession of Licenses, Etc................................................................ 23
7.8. Sufficiency of Assets...................................................................... 23
7.9. Ultravisual Financial Statements; Liabilities.............................................. 23
7.10. Title to Properties........................................................................ 24
7.11. Real Property.............................................................................. 24
7.12. Intellectual Property Rights............................................................... 25
7.13. Contracts.................................................................................. 26
7.14. Litigation; Contingencies.................................................................. 26
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7.15. Taxes...................................................................................... 26
7.16. Employment and Labor Matters............................................................... 27
7.17. Compliance with ERISA, etc................................................................. 28
7.18. Books and Records.......................................................................... 29
7.19. Agreements and Transactions with Related Parties........................................... 29
7.20. No Agreement in Anticipation of Sale....................................................... 29
7.21. Environmental Matters...................................................................... 29
7.22. Bank Accounts and Safety Deposit Boxes..................................................... 30
7.23. Absence of Changes......................................................................... 30
7.24. Information Statement...................................................................... 31
7.25. Full Disclosure............................................................................ 31
SECTION 8. REPRESENTATIONS AND WARRANTIES OF EMAGEON AND MERGER SUB................................... 31
8.1. Existence.................................................................................. 31
8.2. Authority; Inconsistent Obligations........................................................ 32
8.3. No Violation; Compliance with Laws......................................................... 32
8.4. No Subsidiaries............................................................................ 33
8.5. Capitalization............................................................................. 33
8.6. Consents................................................................................... 33
8.7. Possession of Licenses, Etc................................................................ 34
8.8. Sufficiency of Assets...................................................................... 34
8.9. Emageon Financial Statements; Liabilities.................................................. 34
8.10. Title to Properties........................................................................ 35
8.11. Real Property.............................................................................. 35
8.12. Intellectual Property Rights............................................................... 35
8.13. Contracts.................................................................................. 36
8.14. Litigation; Contingencies.................................................................. 37
8.15. Taxes...................................................................................... 37
8.16. Employment and Labor Matters............................................................... 38
8.17. Compliance with ERISA, etc................................................................. 38
8.18. Books and Records.......................................................................... 39
8.19. Agreements with Transactions with Related Parties.......................................... 40
8.20. No Agreement in Anticipation of Sale....................................................... 40
8.21. Environmental Matters...................................................................... 40
8.22. Bank Accounts and Safety Deposit Boxes..................................................... 40
8.23. Absence of Changes......................................................................... 40
8.24. Continuity of Business Enterprise.......................................................... 41
8.25. Information Statement...................................................................... 41
8.26. Full Disclosure............................................................................ 41
SECTION 9. CONDUCT OF BUSINESS PENDING CLOSING........................................................ 41
9.1. Business in the Ordinary Course............................................................ 41
9.2. Information Statement...................................................................... 43
9.3. Stockholder Approval....................................................................... 43
9.4. Board Recommendations...................................................................... 44
9.5. Acquisition Proposals...................................................................... 44
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SECTION 10. INDEMNIFICATION............................................................................ 45
10.1. Indemnification from Ultravisual Escrow Assets............................................. 45
10.2. Indemnification from Emageon Reserved Assets............................................... 46
10.3. Injunctive or Other Equitable Relief....................................................... 47
10.4. Indemnification Procedures................................................................. 47
10.5. Other Limitations.......................................................................... 48
10.6. Exclusive Remedy........................................................................... 48
10.7. Survival................................................................................... 48
10.8. Ultravisual Stockholders' Representative................................................... 49
10.9. Emageon Reserved Assets.................................................................... 50
SECTION 11. TERMINATION................................................................................ 51
11.1. Grounds for Termination.................................................................... 51
11.2. Effect of Termination...................................................................... 52
SECTION 12. MISCELLANEOUS.............................................................................. 52
12.1. Fees and Expenses.......................................................................... 52
12.2. Reasonable Efforts......................................................................... 52
12.3. Governing Law.............................................................................. 52
12.4. Notices.................................................................................... 52
12.5. Entire Agreement........................................................................... 54
12.6. Assignability; Binding Effect.............................................................. 54
12.7. Execution in Counterparts.................................................................. 54
12.8. Amendments................................................................................. 54
12.9. Publicity and Disclosures.................................................................. 55
12.10. Specific Performance....................................................................... 55
12.11. Access and Inspection...................................................................... 55
12.12. Confidentiality............................................................................ 55
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is entered into as of
April 30, 2003 by and among Emageon, Inc., a Delaware corporation ("EMAGEON"),
Emageon - UV Development Corporation, a Delaware corporation and wholly-owned
subsidiary of Emageon ("MERGER SUB"), Ultravisual Medical Systems Corporation, a
Delaware corporation ("ULTRAVISUAL") and Xxxx Xxxxxxx, as Stockholders'
Representative (as defined herein).
WHEREAS, the Boards of Directors of Emageon, Merger Sub and Ultravisual
each have determined that it is advisable and in the best interests of their
respective stockholders for Merger Sub to merge with and into Ultravisual in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), on the terms and subject to the conditions of this Agreement; and
WHEREAS, as a condition and an inducement to the willingness of Emageon
and Merger Sub to enter into this Agreement, certain stockholders of Ultravisual
have concurrently herewith entered into a Support Agreement with Emageon and
Merger Sub, pursuant to which, among other things, such stockholders have agreed
to vote the shares of capital stock owned by them in favor of the merger
contemplated by this Agreement; and
WHEREAS, for federal income tax purposes, it is intended that the merger
of Ultravisual with and into Merger Sub will qualify as a reorganization under
the provisions of Sections 351, 361, 368(a)(1)(A) and 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended (the "CODE"), and this Agreement
constitutes a plan of reorganization for purposes of Sections 354, 361 and 368
of the Code.
NOW, THEREFORE, based upon the above premises and in consideration of the
mutual representations, warranties, covenants and agreements set forth herein,
the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS; INTERPRETATION
1.1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following
capitalized terms will have the meanings specified below (all terms used in this
Agreement that are not defined in this SECTION 1.1 but defined elsewhere in this
Agreement, will have for purposes of this Agreement the meanings set forth
elsewhere in this Agreement):
"ACTION" shall mean any action, suit, litigation, complaint, counterclaim,
claim, petition, mediation contest, or administrative proceeding, whether at
Law, in equity, in arbitration or otherwise, and whether conducted by or before
any Government or other Person.
"ACCREDITED INVESTOR" shall mean any Ultravisual Stockholder who is an
"accredited investor" within the meaning of Rule 501 under the Securities Act
and who executes and delivers to Emageon, at or prior to the Closing, a fully
completed Investor Certification confirming that such Ultravisual Stockholder is
an "accredited investor" within the meaning of Rule 501 under the Securities
Act.
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"ADDITIONAL AGREEMENTS" means each of the Amended Stockholders Agreement,
the Registration Rights Agreement, the Ultravisual Warrants, the Stock
Restriction Agreement and the Employment Agreements.
"AFFILIATE" of any Person means (i) any director, officer or employee of
such Person, (ii) any direct or indirect holder of five percent (5%) or more of
any class of stock (or other equity interest) of such Person, (iii) any spouse,
parent, sibling, or descendant (by blood or adoption) of such Person, (iv) any
trust or family limited partnership, in whole or in part, for the benefit of, or
owned by, such Person or any Person specified in clauses (i), (ii) or (iii)
hereof, and (v) any other Person that, directly or indirectly, Controls, is
Controlled by or is under common Control with such Person.
"AGREEMENT" shall have the meaning set forth in the recitals to this
Agreement (the "RECITALS").
"ALTERNATIVE TRANSACTION" shall have the meaning set forth in SECTION
9.4(b).
"AMENDED STOCKHOLDERS AGREEMENT" shall mean that certain Amended and
Restated Stockholders Agreement, dated October 2, 2001, as amended as of the
Closing Date pursuant to an amendment substantially in the form attached hereto
as EXHIBIT 1.1(a), as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"ACQUISITION AGREEMENT" shall have the meaning set forth in SECTION
9.4(b).
"ACQUISITION PROPOSAL" shall have the meaning set forth in SECTION 9.5.
"ASSUMED ULTRAVISUAL OPTIONS" shall have the meaning set forth in SECTION
4.4(b).
"AVAILABLE EMAGEON RESERVED ASSETS" shall have the meaning set forth in
SECTION 10.9(a).
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a day
on which commercial banks in Birmingham, Alabama, are required or authorized to
be closed.
"CANCELLATION AGREEMENT" shall have the meaning set forth in SECTION
4.4(a).
"CASH CONSIDERATION" shall have the meaning set forth in SECTION 4.1(a).
"CERTIFICATE OF MERGER" shall have the meaning set forth in SECTION 2.2.
"CHANGE OF CONTROL" shall mean: (x) a consolidation or merger of Emageon
with or into any other Person in which the holders of Emageon's outstanding
capital stock immediately before such consolidation or merger do not,
immediately after such consolidation or merger, retain stock representing a
majority of the voting power of the surviving corporation of such consolidation
or merger; (y) a transaction in which Emageon stockholders transfer more than
50% of the voting power of Emageon; or (z) a sale of all or substantially all of
the assets of Emageon.
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"CLAIMED SHARES" shall have the meaning set forth in SECTION 10.9(d).
"CLOSING" shall have the meaning set forth in SECTION 5.1.
"CLOSING DATE" shall have the meaning set forth in SECTION 5.1.
"CODE" shall have the meaning set forth in the Recitals.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in SECTION
12.13.
"CONTINUING EMPLOYEES" shall have the meaning set forth in SECTION 4.4(a).
"CONTROL" means a Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of another Person,
whether through the ownership of voting securities, by contract or otherwise.
"DGCL" shall have the meaning set forth in the Recitals.
"DISCLOSEE" shall have the meaning set forth in SECTION 12.13.
"DISCLOSING PARTY" shall have the meaning set forth in SECTION 12.13.
"DISSENTERS' RIGHTS" shall mean the rights of any Person pursuant to the
DGCL to receive for their shares of capital stock in cash the value of such
Person's shares in lieu of the Merger Consideration.
"DISSENTING SHARES" shall mean any Ultravisual Shares as to which the
holder thereof has demanded appraisal with respect to the Merger in accordance
with Section 262 of the DGCL and as of the Effective Time has neither
effectively withdrawn nor lost such Person's right to such appraisal.
"EFFECTIVE TIME" shall have the meaning set forth in SECTION 2.2.
"EMAGEON" shall have the meaning set forth in the Recitals.
"EMAGEON BUSINESS" shall mean the business of marketing and selling
certain software solutions and services related to digital storage and
distribution management of medical images.
"EMAGEON CERTIFICATES" shall mean the certificates representing shares of
Emageon Common Stock or Emageon Series D Preferred Stock, as the case may be.
"EMAGEON COMMON STOCK" shall mean the common stock of Emageon, $.001 par
value per share.
"EMAGEON COMMON STOCK VALUE" shall mean $.77 per share.
"EMAGEON CONTRACTS" shall have the meaning set forth in SECTION 8.13.
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"EMAGEON DISCLOSURE MEMORANDUM" shall have the meaning set forth in the
introduction to SECTION 9.
"EMAGEON EMPLOYEE BENEFIT PLANS" shall have the meaning set forth in
SECTION 8.17(a).
"EMAGEON FINANCIAL STATEMENTS" shall have the meaning set forth in SECTION
8.9(a).
"EMAGEON INDEMNITEE" shall have the meaning set forth in SECTION 10.1.
"EMAGEON LEASED REAL PROPERTY" shall have the meaning set forth in SECTION
8.11(a).
"EMAGEON PERMITS" shall have the meaning set forth in SECTION 8.7.
"EMAGEON PROPERTY LEASES" shall have the meaning set forth in SECTION
8.11(a).
"EMAGEON REFERENCE DATE BALANCE SHEET" shall have the meaning set forth in
SECTION 8.9(a).
"EMAGEON REFERENCE DATE" shall have the meaning set forth in SECTION
8.9(a).
"EMAGEON RESERVED ASSETS" shall have the meaning set forth in SECTION
4.2(b)(ii).
"EMAGEON SERIES D PREFERRED STOCK" shall mean the Series D Preferred
Stock, as defined in the Restated Charter, $.001 par value per share.
"EMAGEON SERIES D PREFERRED STOCK VALUE" shall mean $.77 per share.
"EMAGEON SHARES" shall mean the issued and outstanding shares of Emageon
common stock and preferred stock.
"EMAGEON WARRANTS" shall mean warrants to purchase shares of Emageon
Common Stock, which warrants shall be in substantially the form of EXHIBIT
1.1(b).
"EMPLOYMENT AGREEMENTS" shall mean the employment agreements between
Emageon and each of Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxx, each dated as
of the Closing Date, as each Employment Agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"ENVIRONMENTAL LAWS" shall mean all federal, national, state, provincial,
municipal, and local Laws (which shall not include foreign laws), norms, general
or particular conditions, conventions, requirements, covenants and Orders
relating to health, safety and the environment, including, without limitation,
Laws and covenants relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances, materials or wastes of every kind and nature into the
environment (including without limitation ambient air, surface water, ground
water, soil and subsoil), or otherwise relating to the manufacture, generation,
processing, distribution, application, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous
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substances, materials or wastes, or to occupational or worker safety and health,
and any and all Laws, directives, guidelines, policies, plans, Orders,
stipulations, provisions and conditions of Environmental Permits, licenses,
stipulations, certificates of authorization, and other operating authorizations,
notices or demand letters issued, entered, promulgated or approved thereunder.
"ENVIRONMENTAL PERMITS" shall mean all permits, licenses, certificates,
approvals, authorizations, regulatory plans or compliance schedules required by
applicable Environmental Laws, or issued by a Government pursuant to applicable
Environmental Laws, or entered into by agreement of the party to be bound,
relating to activities that affect human health or the environment, including,
without limitation, permits, licenses, certificates, approvals, authorizations,
regulatory plans and compliance schedules for air emissions, water discharges,
pesticide and herbicide or other agricultural chemical storage, use or
application, and Hazardous Material or Solid Waste generation, use, storage,
treatment and disposal.
"ERISA AFFILIATE" shall have the meaning set forth in SECTION 7.17(h).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" shall be a person mutually agreed upon by Emageon and
Ultravisual prior to Closing, in its capacity as Escrow Agent under the Escrow
Agreement.
"ESCROW AGREEMENT" shall have the meaning set forth in SECTION 4.2(b)(i).
"EXCLUDED OPTIONEE" shall have the meaning set forth in SECTION 4.4(b).
"FORUM" shall mean any federal, national, state, local, municipal or
foreign court, Governmental agency, administrative body or agency, tribunal,
private alternative dispute resolution system, or arbitration panel.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"GOVERNANCE DOCUMENTS" shall mean, with respect to Emageon, Merger Sub or
Ultravisual, as the case may be, the Certificate of Incorporation, Bylaws,
stockholders agreement, any voting agreements or similar governing documents.
"GOVERNMENT" shall mean any federal, national, state, provincial, local,
municipal, or foreign government or any department, commission, board, bureau,
agency, instrumentality, unit, or taxing authority thereof.
"HAZARDOUS MATERIAL" shall mean any substance or material, including
without limitation raw materials, commercial products and wastes or waste
products that, because of its quantity, concentration, or physical, chemical or
infectious characteristics may cause or significantly contribute to an increase
in mortality or an increase in serious, irreversible or incapacitating illness,
or pose a substantial hazard to human health or the environment, including
without limitation all substances and materials designated as hazardous or toxic
under any applicable Environmental Law.
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"HEREOF", "HEREIN", "HEREUNDER" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and "SECTION", "EXHIBIT" and like
references are to this Agreement unless otherwise specified.
"IMPROVEMENTS" shall mean all buildings, structures and other improvements
of any and every nature located on any real property and all fixtures attached
or affixed, actually or constructively, to real property or to any such
buildings, structures or other improvements.
"INDEMNITEE" shall have the meaning set forth in SECTION 10.4.
"INDEMNITOR" shall have the meaning set forth in SECTION 10.4.
"INFORMATION STATEMENT" shall have the meaning set forth in SECTION 9.2.
"INVESTOR CERTIFICATION" shall mean an investor certification in a form
reasonably acceptable to Emageon.
"KEY OFFICER" shall mean (i) with respect to Emageon or Merger Sub,
Xxxxxxx X. Xxxx, Xx., Xxxxxxx Xxxxxxx, Xxxx Xxxx, Xxxx Xxxxxxx and Xxxxxx
Xxxxx-Xxxxx, and (ii) with respect to Ultravisual, Xxxx Xxxxxxx, Xxxxxxx Xxxxx
or Xxxxx Xxxxxx.
"KNOWLEDGE": A Person (other than an individual natural Person) will be
deemed to have "Knowledge" of a particular fact or other matter if any
individual natural Person who is serving as a Key Officer of such Person is
actually aware of such fact or other matter.
"LAW" shall mean all federal, national, state, provincial, local,
municipal or foreign constitutions, statutes, rules, regulations, ordinances,
acts, codes, legislation, treaties, conventions, judicial decisions, common law
principles, and similar laws and legal requirements, whether of the United
States of America or any other jurisdiction, as in effect from time to time.
"LIABILITY" shall mean any liability or obligation whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated and whether due or to become due.
"LIEN" shall mean any mortgage, charge, claim, community property
interest, condition, equitable interest, option, pledge, security interest,
hypothecation, lien, encumbrance, right of first refusal, or restriction of any
kind, including any restriction on use, voting, transfer, receipt of income, or
exercise of any other attribute of ownership, and the filing of or agreement to
give any financing statement under the lien notice records or other similar
legislation of any Government.
"LOSS" shall have the meaning set forth in SECTION 10.1.
"MATERIAL ADVERSE CHANGE" shall mean a state of facts, event, change or
effect that has, has had, or could reasonably be expected to have a material
adverse effect on the business assets, properties, Liabilities, affairs,
financial condition, results of operation or prospects of Ultravisual or
Emageon, as the case may be.
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"MATERIAL CONTRACTS" means, with respect to any Person, all written and
oral material agreements and commitments of such Person, including, without
limitation, all employment and consulting contracts, severance agreements, union
contracts, distributorship agreements, agreements with suppliers and customers
(except purchase or sale orders entered into in the ordinary course of business
and involving the purchase and sale of goods or services for not more than
$5,000), leases, licenses, employee benefit plans, deferred compensation
agreements, indentures, notes, bonds, mortgages, security agreements, loan
agreements, guaranties, franchise agreements, non-competition agreements,
agreements in respect of the issuance, sale, repurchase or transfer of such
Person's capital stock, bonds or other securities, powers of attorney, and any
contract that involves a payment of more than $25,000, or has a term or requires
performance over a period of more than 180 days.
"MERGER" shall have the meaning set forth in SECTION 2.1.
"MERGER CONSIDERATION" shall have the meaning set forth in SECTION 4.1(a).
"MERGER SUB" shall have the meaning set forth in the Recitals.
"OBLIGATED COMPANY" shall have the meaning set forth in SECTION 9.1.
"ORDERS" shall mean all orders, writs, judgments, injunctions, decrees,
rulings, consent agreements, and awards of or by any Forum or entered by consent
of the party to be bound.
"PERSON" shall include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization, a Government and any other entity.
"QUALIFYING IPO" shall mean an underwritten public offering pursuant to an
effective registration statement filed under the Securities Act of 1933, as
amended, covering the offer and sale of the Emageon Common Stock for the account
of Emageon and/or any selling stockholders in which the offering price per share
is at least $1.2825 (as adjusted for stock splits, stock dividends,
reclassifications and the like) and the aggregate proceeds to Emageon (before
deduction for underwriters' discounts and expenses relating to the issuance,
including without limitation legal fees of the Emageon's counsel) are at least
$50,000,000.
"RELATED PARTY" shall mean, as to any specified Person, (a) any other
Person owning, or formerly owning, beneficially or of record, directly or
indirectly, any of the shares of or other equity interest in the specified
Person, (b) any Affiliate of the specified Person, (c) any director or officer
of the specified Person, (d) any other Person in which any of the foregoing
Persons has, directly or indirectly, at least a three percent (3.0%) beneficial
interest in the capital stock or other type of equity interest of such Person,
or (e) any partnership in which any of the foregoing Persons is a general
partner or has at least a three percent (3.0%) beneficial interest.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Amended and Restated
Registration Rights Agreement among Emageon, the Ultravisual Stockholders and
the other Emageon stockholders named therein, dated as of the Closing Date, in
the form attached hereto as EXHIBIT 1.1(e), as the same may be amended,
restated, supplemented or otherwise modified from time to time.
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"REPRESENTATIVE" shall have the meaning set forth in SECTION 4.2(a).
"RESTATED CHARTER" means the Amended and Restated Certificate of
Incorporation of Emageon, in the form attached hereto as EXHIBIT 1.1(c).
"SECURITIES ACT" shall have the meaning set forth in SECTION 7.5.
"SHARE CONSIDERATION" shall have the meaning set forth in SECTION 4.1(a).
"SOLID WASTE" shall mean any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control facility
and other discarded material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial, mining and agricultural
operations, and from community activities.
"STOCKHOLDERS' REPRESENTATIVE" shall have the meaning set forth in SECTION
10.8.
"STOCK RESTRICTION AGREEMENT" shall mean the Stock Restriction Agreement
between Emageon, and each of Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxx in the
form attached hereto as EXHIBIT 1.1(d), as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"SUBSEQUENT DETERMINATION" shall have the meaning set forth in SECTION
9.4(b).
"SUPERIOR PROPOSAL" shall have the meaning set forth in SECTION 9.4(b).
"SURVIVAL PERIOD" shall have the meaning set forth in SECTION 10.6(a).
"SURVIVING CORPORATION" shall have the meaning set forth in SECTION 2.1.
"TAX" and "TAXES" include all past, present or future federal, state,
local and foreign income, alternative or add-on minimum income, gains,
franchise, excise, property, transfer, receipts, sales, use, franchise,
employment, social security, license, payroll, ad valorem, documentary, stamp,
withholding, occupation, recording, value added or transfer taxes, governmental
charges, fees, customs duties, levies or assessments (whether payable directly
or by withholding), and, with respect to any such taxes, any estimated tax,
interest, fines and penalties or additions to tax and interest on such fines,
penalties and additions to tax.
"THIRD PARTY REIMBURSEMENT" shall have the meaning set forth in SECTION
10.5(b).
"TRANSMITTAL LETTER" shall have the meaning set forth in SECTION 4.2(b).
"ULTRAVISUAL" shall have the meaning set forth in the Recitals.
"ULTRAVISUAL BUSINESS" means the business of marketing and selling certain
medical systems image management and visualization technology and solutions,
including the VisualPACS Solution.
"ULTRAVISUAL CERTIFICATES" shall mean the certificates representing all
issued and outstanding Ultravisual Shares.
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"ULTRAVISUAL COMMON STOCK" shall mean the common stock of Ultravisual,
$.01 par value.
"ULTRAVISUAL CONTRACTS" shall have the meaning set forth in SECTION 7.13.
"ULTRAVISUAL DISCLOSURE MEMORANDUM" shall have the meaning set forth in
the introduction to SECTION 7.
"ULTRAVISUAL EMPLOYEE BENEFIT PLANS" shall have the meaning of SECTION
7.17(a).
"ULTRAVISUAL ESCROW ASSETS" shall have the meaning set forth in SECTION
4.2(b)(i).
"ULTRAVISUAL FINANCIAL STATEMENTS" shall have the meaning set forth in
SECTION 7.9.
"ULTRAVISUAL INDEMNITEE" shall have the meaning set forth in SECTION 10.2.
"ULTRAVISUAL LEASED REAL PROPERTY" shall have the meaning set forth in
SECTION 7.11(a).
"ULTRAVISUAL OPTION PLAN" shall mean the UltraVisual Medical Systems
Corporation 2000 Stock Option Plan.
"ULTRAVISUAL OPTIONS" shall mean any and all stock options issued pursuant
to the Ultravisual Option Plan.
"ULTRAVISUAL PERMITS" shall have the meaning set forth in SECTION 7.7.
"ULTRAVISUAL PROPERTY LEASES" shall have the meaning set forth in SECTION
7.11(b).
"ULTRAVISUAL REFERENCE DATE BALANCE SHEET" shall have the meaning set
forth in SECTION 7.9.
"ULTRAVISUAL REFERENCE DATE" shall have the meaning set forth in SECTION
7.9.
"ULTRAVISUAL SHARES" shall mean the issued and outstanding shares of
Ultravisual Common Stock.
"ULTRAVISUAL STOCKHOLDER" shall mean each holder of Ultravisual Common
Stock immediately prior to the Effective Time.
"UNACCREDITED INVESTOR" shall mean any Person who is not an Accredited
Investor.
"UV WARRANTHOLDERS" shall mean Xxxxxxxxx & Company, Inc., Xxxx Xxxxx and
Xxxx Xxxxxxx, LLC.
"UV WARRANTS" shall mean those certain Common Stock Purchase Warrants held
by the UV Warrantholders.
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1.2. INTERPRETATION. In interpreting this Agreement, the following rules
of construction shall apply:
(a) The headings of particular provisions of this Agreement are
inserted for convenience only and will not be construed as a part of this
Agreement or serve as a limitation or expansion on the scope of any term or
provision of this Agreement.
(b) Where the context requires, the use of the singular form in
this Agreement will include the plural, the use of the plural will include the
singular, and the use of any gender will include any and all genders.
(c) The word "including" (and, with correlative meaning, the word
"include") means that the generality of any description preceding such word is
not limited, and the words "shall" and "will" are used interchangeably and have
the same meaning.
(d) References in this Agreement to "Sections" or "Exhibits" shall
be to Sections or Exhibits of or to this Agreement unless otherwise specifically
provided.
(e) References to any agreement or contract are to such agreement
or contract as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
(f) References to any statute and related regulation shall include
any amendments of the same and any successor statutes and regulations.
(g) Unless otherwise specified in this Agreement, all accounting
terms used in this Agreement shall be interpreted in accordance with GAAP.
SECTION 2. THE MERGER; EFFECTIVE TIME
2.1. THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the DGCL, at the Effective Time,
Merger Sub and Ultravisual shall consummate a merger (the "MERGER") in which (a)
Merger Sub shall be merged with and into Ultravisual and the separate corporate
existence of Merger Sub shall thereupon cease, and (b) Ultravisual shall
continue as the surviving corporation in the Merger ("SURVIVING CORPORATION").
Upon effectiveness of the Merger, Emageon shall change its name to "EMAGEON UV,
INC."
2.2. EFFECTIVE TIME. Subject to the provisions of this Agreement, Merger
Sub and Ultravisual shall cause the Merger to be consummated by filing on the
Closing Date a Certificate of Merger (the "CERTIFICATE OF MERGER") with the
Secretary of State of the State of Delaware, in such form as required by, and
executed in accordance with, the relevant provisions of the DGCL and will make
all other filings or recordings required under the DGCL in order to effect the
Merger. The Merger shall become effective upon such filing or at such time
thereafter as is provided in the Certificate of Merger (the "EFFECTIVE TIME")
which shall have been duly filed with the Secretary of State of the State of
Delaware.
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SECTION 3. THE SURVIVING CORPORATION
3.1. CERTIFICATE OF INCORPORATION. At the Effective Time, the Certificate
of Incorporation of Merger Sub shall be and become the Certificate of
Incorporation of the Surviving Corporation.
3.2. BYLAWS. At the Effective Time, the Bylaws of Merger Sub shall be and
become the Bylaws of the Surviving Corporation.
3.3. DIRECTORS. The Board of Directors of Merger Sub immediately prior to
the Effective Time shall be the initial officers of the Surviving Corporation,
each of such individuals to serve until his or her successor is duly elected.
The Board of Directors of Emageon as of the Effective Time shall consist of the
following individuals, each of such individuals to serve until his or her
successor is duly elected:
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx, Xx.
Xxxx X. York
Xxxxx Xxxxx
Xxxx Xxxxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxxx
3.4. OFFICERS. The officers of Merger Sub immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation, each
of such officers to serve until his or her successor is duly elected. The
officers of Emageon as of the Effective Time shall be as follows:
Xxxxxxx X. Xxxx, Xx., President, Chief Executive Officer and
Chairman of the Board
W. Xxxxxxx Xxxxxxx, Chief Financial Officer, Secretary and Treasurer
Xxxxxx Xxxxx-Xxxxx, Chief Operating Officer
Xxxx Xxxx, Chief Technology Officer - Infrastructure
Xxxx Xxxxxxx, Senior Vice President of Marketing
Xxxx Xxxxxxx, Chief Technology Officer - Visualization
SECTION 4. MERGER CONSIDERATION
4.1. MERGER CONSIDERATION.
(a) Merger Consideration. Prior to the Effective Time, Emageon
will adopt and file with the Secretary of State of the State of Delaware the
Restated Charter. At the Effective Time, (i) each share of Ultravisual Common
Stock held by Accredited Investors, issued and outstanding immediately prior to
the Effective Time except for Dissenting Shares, shall, by virtue of the Merger
and without any further action on the part of the holder thereof, be converted
into the right to receive (A) .619024 shares of Emageon Common Stock, (B)
..600384 shares of Emageon Series D Preferred Stock and (C) Emageon Warrants to
purchase .196323 shares of Emageon Common Stock (collectively, the "SHARE
CONSIDERATION"), and (ii) each
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share of Ultravisual Common Stock held by any Unaccredited Investors, issued and
outstanding immediately prior to the Effective Time, except for Dissenting
Shares, shall be converted into the right to receive sixty-three cents ($0.63)
in cash (the "CASH CONSIDERATION") (with respect to each Ultravisual
Stockholder, such shares of Emageon Common Stock, Emageon Series D Preferred
Stock and Emageon Warrants, or such cash, as the case may be, the "MERGER
CONSIDERATION"). Each of Emageon, Merger Sub and Ultravisual agrees to report
the Merger as a tax free reorganization within the meaning of Section 368 of the
Code on all filings made with any taxing authority.
(b) Ultravisual Treasury Share Cancellation. At the Effective
Time, each Ultravisual Share that is owned by Ultravisual or held in the
treasury of Ultravisual shall be canceled and retired and shall cease to exist
and no consideration shall be delivered or deliverable in exchange therefor.
(c) Fractional Shares. Notwithstanding anything herein to the
contrary, (i) no fractional shares of Emageon Common Stock or Emageon Series D
Preferred Stock shall be issued, and if any Ultravisual Stockholder would
otherwise be entitled to receive a fractional share of Emageon Common Stock or
Emageon Series D Preferred Stock, in lieu thereof such Ultravisual Stockholder
shall be paid an amount in cash equal to such fractional part of a share
multiplied by the Emageon Common Stock Value as to any such fractional shares of
Emageon Common Stock, and the Emageon Series D Preferred Stock Value as to each
fractional share of Emageon Series D Preferred Stock and (ii) no Emageon
Warrants to purchase fractional shares of Emageon Common Stock will be issued,
and the number of shares of Emageon Common Stock issuable upon the exercise of
each Emageon Warrant that is issued as part of the Merger Consideration will be
rounded down to the next whole number of shares. Payments of any cash in lieu of
fractional shares at Closing shall be made by check.
(d) Anti-Dilution Provisions. In the event that, prior to Closing,
Emageon changes the number of shares of Emageon Common Stock issued and
outstanding prior to the Effective Time as a result of a stock split, reverse
stock split, stock dividend or any other kind of recapitalization, the Share
Consideration shall be proportionately adjusted.
(e) Other Shares. At the Effective Time, by virtue of the Merger,
and without any action on the part of Emageon or Merger Sub, each share of
common stock of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and become one share of common stock of
the Surviving Corporation.
4.2. EXCHANGE AND PAYMENT PROCEDURES; SHARE EXCHANGE.
(a) Exchange Procedures. Promptly, but in no event more than three
(3) Business Days after the Closing Date, the Surviving Corporation shall cause
to be mailed to each holder of record of Ultravisual Shares that, immediately
prior to the Closing Date, represented Ultravisual Shares that were converted
into the right to receive the Merger Consideration pursuant to SECTION 4.1, (i)
a letter of transmittal in a form reasonable acceptable to Ultravisual and
Emageon (the "TRANSMITTAL LETTER") and (ii) instructions for use in effecting
the surrender of the Ultravisual Certificates in exchange for the applicable
Merger Consideration. Upon surrender of an Ultravisual Certificate for
cancellation to Emageon or to such other agent or
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agents as may be appointed by Emageon, together with such Transmittal Letter,
duly completed and validly executed in accordance with the instructions thereto,
the holder of such Ultravisual Certificate shall be entitled to receive in
exchange therefor (i) as to Ultravisual Shares held by Accredited Investors,
Emageon Certificates representing the number of whole shares of Emageon Common
Stock and Emageon Series D Preferred Stock (less the number of shares of Emageon
Common Stock and Emageon Series D Preferred Stock to be deposited in escrow on
such holder's behalf pursuant to SECTION 4.2(b) hereof), and Emageon Warrants to
which such holder is entitled pursuant to SECTION 4.1(a) and cash in lieu of
fractional shares (if any) to which such holder is entitled pursuant to SECTION
4.1(c), and (ii) as to Ultravisual Shares held by Unaccredited Investors (if
any) the Cash Consideration to which such Unaccredited Investor(s) shall be
entitled pursuant to SECTION 4.1(a), and in each case the Ultravisual
Certificate so surrendered shall be canceled.
(b) Escrow.
(i) Ultravisual Escrow. Emageon shall deposit with the
Escrow Agent 3,528,612 shares of the Emageon Common Stock and 3,431,845
shares of the Series D Preferred Stock that is to be issued as part of the
Merger Consideration (the "ULTRAVISUAL ESCROW ASSETS"). The Ultravisual
Escrow Assets shall be held in escrow to satisfy the indemnification
obligations of Ultravisual and the Ultravisual Stockholders under SECTION
10.1 and disbursed pursuant to the terms of the escrow agreement among
Ultravisual, Emageon, Merger Sub and the Stockholders' Representative
dated as of the date hereof (the "ESCROW AGREEMENT"), attached hereto as
EXHIBIT 4.2(b)(i).
(ii) Emageon Reservation of Shares. In addition to and
separate from the Merger Consideration, Emageon shall reserve for
issuance, out of its authorized but unissued shares, the same number of
shares of Emageon Common Stock and Emageon Series D Preferred Stock as
shall have been deposited pursuant to SECTION 4.2(b)(i) (the "EMAGEON
RESERVED ASSETS"). Emageon shall be obligated to use the Emageon Reserved
Assets to satisfy the indemnification obligations of Emageon and Merger
Sub under SECTION 10.2.
(c) Distributions with Respect to Unexchanged Shares of Company
Capital Stock. No dividends or other distributions with respect to Emageon
Common Stock or Emageon Series D Preferred Stock declared or made after the
Effective Time and with a record date after the Effective Time will be paid to
the holder of any unsurrendered Ultravisual Certificate until the holder of
record of such Ultravisual Certificate shall surrender such Ultravisual
Certificate. Subject to applicable law, following surrender of any such
Ultravisual Certificate, there shall be paid to the record holder of the
certificates representing whole shares of Emageon Common Stock or Emageon Series
D Preferred Stock issued in exchange therefor, without interest, at the time of
such surrender, the amount of dividends or other distributions with a record
date after the Effective Time theretofore payable.
(d) Lost Certificates. If any Ultravisual Certificate is lost,
stolen or destroyed, upon the making of an affidavit of that fact, in form and
substance reasonably satisfactory to Emageon, by an Ultravisual Stockholder or
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the Stockholder Representative claiming such Ultravisual Certificate to be lost,
stolen or destroyed, and upon such Ultravisual Stockholder or Stockholder
Representative agreeing to indemnify Emageon, Emageon shall issue in exchange
for such lost, stolen or destroyed Ultravisual Certificate, the Merger
Consideration pursuant to this Agreement.
4.3. DISSENTING SHARES
(a) Notwithstanding any provision of this Agreement to the
contrary, Dissenting Shares shall not be converted into or represent a right to
receive the Merger Consideration pursuant to SECTION 4.1(a), but the holder
thereof shall be entitled to only such rights as are granted by the DGCL.
(b) Notwithstanding the provisions of SECTION 4.3(a), if any
Ultravisual Stockholder who or that demands appraisal of such Person's
Ultravisual Shares under the DGCL effectively withdraws or loses (through
failure to perfect or otherwise) such Person's right to appraisal, then as of
the Effective Time or the occurrence of such event, whichever later occurs, such
Person's Ultravisual Shares shall automatically be converted into and represent
only the right to receive the Merger Consideration, as provided in SECTION
4.1(a), upon surrender of the Ultravisual Certificates pursuant to SECTION 4.2.
(c) Ultravisual shall give Emageon (i) prompt notice of any
written demands for appraisal or payment of the fair value of any Ultravisual
Shares, withdrawals of such demands, and any other instruments served on
Ultravisual pursuant to the DGCL received by Ultravisual and (ii) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under the DGCL. Except with the prior written consent of Emageon,
Ultravisual shall not voluntarily make any payment with respect to any demands
for appraisal, settle or offer to settle any such demands.
4.4. TREATMENT OF WARRANTS AND STOCK OPTIONS
(a) Ultravisual shall use commercially reasonable efforts to cause
all Ultravisual Options held by Ultravisual employees or consultants (subject to
SECTION 4.4(b)) who will continue as employees or consultants of Emageon
immediately following the Effective Time ("CONTINUING EMPLOYEES"), that are not
exercised prior to the Effective Time, to be cancelled prior to the Effective
Time pursuant to a cancellation agreement, in a form acceptable to Emageon (the
"CANCELLATION AGREEMENT") with each such Continuing Employee. Emageon agrees to
issue new Emageon stock options to purchase up to an aggregate of 2,250,000
(including in such amount the stock options to be issued pursuant to subsection
(b) below) shares of Emageon Common Stock (with respect to each such Person, at
an exercise price per share of $0.57 (or as may otherwise be mutually agreed
upon by Emageon and Ultravisual), and in such amounts and with such vesting
periods mutually agreed upon by Emageon and Ultravisual) under the Emageon, Inc.
2000 Equity Compensation Plan to the Persons who have executed a Cancellation
Agreement prior to the Effective Time.
(b) Within thirty (30) days after the Effective Time, except as
otherwise agreed to by Emageon and Ultravisual prior to Closing, Emageon shall
assume the Ultravisual Options held by any Excluded Optionee (as defined below)
that are not exercised prior to the
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Effective Time (each, an "ASSUMED ULTRAVISUAL OPTION"), subject to the terms and
conditions of the Ultravisual Option Plan. Each Assumed Ultravisual Option shall
continue to have, and be subject to, the same terms and conditions set forth in
the applicable Ultravisual Option (including any applicable stock option
agreement or other document evidencing such Ultravisual Option) immediately
prior to the Effective Time, except that (except as otherwise agreed to by
Emageon and Ultravisual prior to Closing) (i) each Assumed Ultravisual Option
shall be exercisable (or shall become exercisable in accordance with its terms)
for that number of whole shares of Emageon Common Stock equal to the number of
shares of Ultravisual Common Stock into which such Ultravisual Option was
exercisable, and (ii) the per share exercise price for the shares of Emageon
Common Stock issuable upon exercise of such Assumed Ultravisual Option shall be
equal to $.57. Within thirty (30) days after the Effective Time, Emageon shall
provide to each Person who holds an Assumed Ultravisual Option a document
evidencing the foregoing assumption of such Assumed Ultravisual Option by
Emageon. As used herein, "EXCLUDED OPTIONEE" means any Person holding
Ultravisual Options as of the Effective Time that is (A) a former employee of
Ultravisual, (B) a Person who will not perform services for Emageon immediately
following the Effective Time, (C) a Person to whom the issuance of Emageon stock
options would not be exempt from the registration requirements of the Securities
Act and applicable state securities law, as determined by Emageon in its sole
discretion, or (D) a Continuing Employee who has not executed a Cancellation
Agreement.
(c) Promptly after closing, Emageon shall take all steps
reasonably necessary to grant to the UV Warrantholders, in exchange for their
cancellation and delivery to Emageon of their UV Warrants, new warrants to
purchase securities of Emageon in accordance with the terms of such UV Warrants
relating to a merger of Ultravisual with another company. The effect of such
exchange shall be that the UV Warrantholders will have the right to receive,
upon the exercise of such new warrants and payment of the exercise price
therefor, the kind and amount of Emageon securities that such UV Warrantholders
would have been entitled to receive if, immediately prior to the closing of the
Merger, such UV Warrantholders had held the number of shares of Ultravisual
Common Stock that were then purchasable upon the exercise of such UV Warrants.
SECTION 5. CLOSING; DELIVERIES
5.1. CLOSING. The closing of the Merger (the "CLOSING") shall take place
at 10:00 a.m. on the second Business Day after all of the conditions set forth
in SECTIONS 6.1 and 6.2 have been satisfied or waived (the "CLOSING Date") at
the offices of Xxxxxxxxxx Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000-0000 or at such other date, time or place as may be
agreed to in writing by Emageon and Ultravisual.
5.2. FILINGS AND DELIVERIES
(a) Prior to Closing, Emageon will file the Restated Charter with
the Secretary of State of the State of Delaware.
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(b) At the Closing, Merger Sub and Ultravisual will file the
Certificate of Merger with the Secretary of State of the State of Delaware to
effect the Merger.
(c) All deliveries, payments and other transactions and documents
relating to the Closing shall be interdependent and none shall be effective
unless and until all are effective (except to the extent that the party entitled
to the benefit thereof has waived satisfaction or performance thereof as a
condition precedent to the Closing).
SECTION 6. CONDITIONS PRECEDENT TO CLOSING
6.1. CONDITIONS TO OBLIGATIONS OF EMAGEON AND MERGER SUB TO CLOSE. The
obligations of Emageon and Merger Sub under this Agreement to consummate the
Merger and the other transactions contemplated by this Agreement are subject to
the fulfillment and satisfaction of each and every one of the following
conditions at or prior to the Closing, any or all of which may be waived in
writing in whole or in part by Emageon:
(a) Representations and Warranties. Each of the representations
and warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, the Ultravisual Business and Ultravisual that is not qualified by
materiality shall have been true and correct in all material respects as of the
date when made and will be true and correct in all material respects on the
Closing Date as though made again at and as of the Closing Date, and each of the
representations and warranties contained in this Agreement and in any
certificate, instrument, schedule, agreement or other writing delivered by or on
behalf of, or in respect of, the Ultravisual Business and Ultravisual that is
qualified by materiality shall have been true and correct in all respects as of
the date when made and will be true and correct on the Closing Date as though
made again at and as of the Closing Date.
(b) Compliance with Covenants and Conditions. Ultravisual shall
have performed and complied with all covenants and agreements and satisfied all
conditions required by this Agreement to be performed or complied with, or
satisfied by it prior to or on the Closing Date.
(c) Requisite Stockholder Approval. This Agreement, the Merger and
the transactions contemplated herein shall have been duly and validly approved
by the written consent of Ultravisual Stockholders holding at least 90% of the
Ultravisual Shares.
(d) Closing Certificates. Ultravisual shall have delivered to
Emageon and Merger Sub a certificate, executed by such officers as Emageon shall
request, dated as of the Closing Date and certifying in such detail as Emageon
may request as to the fulfillment and satisfaction of the conditions specified
in SECTIONS 6.1(a), 6.1(b) AND 6.1(c).
(e) Government Consents. Emageon, Merger Sub and Ultravisual shall
have received all authorizations, consents and approvals of any Government
necessary or desirable for the execution, delivery and performance of this
Agreement and the transactions contemplated hereby, all such authorizations,
consents and approvals shall be in full force and effect, and all notices
required to be given to any Government shall have been given and all applicable
waiting periods shall have expired.
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(f) Consents. Ultravisual shall have delivered to Emageon and
Merger Sub all registrations, permits, filings, applications, notices, consents,
approvals, orders, qualifications, and authorizations of all Persons from which
such consents are required for the execution, delivery and performance of this
Agreement and the transactions contemplated hereby (including all consents
required to be obtained from the Wisconsin Department of Commerce), and none of
such authorizations, consents or approvals shall be subject to any restrictions
or conditions that require any payment to the consenting or approving party by
Emageon, Merger Sub or Ultravisual or that materially adversely affect the
Ultravisual Business, Merger Sub, Emageon or Ultravisual's assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects.
(g) Secretary's Certificate. Emageon and Merger Sub shall have
received a certificate dated the Closing Date from the Secretary of Ultravisual
certifying as to (i) the Certificate of Incorporation and Bylaws of Ultravisual,
(ii) the resolutions of the Board of Directors and stockholders of Ultravisual
approving the execution, delivery and performance of this Agreement and any
Additional Agreements, the transactions contemplated hereby and thereby, the
taking of any and all other actions necessary to enable Ultravisual to comply
with the terms hereof and the Additional Agreements and to consummate the Merger
and the other transactions contemplated in this Agreement and the Additional
Agreements, and (iii) the incumbency of the officers of Ultravisual executing
this Agreement and any Additional Agreements.
(h) Legal Opinion. Emageon shall have received from Xxxxxxx, Best
& Friedrich LLP, legal counsel to Ultravisual, a legal opinion addressed to
Emageon dated the Closing Date in a form reasonably agreed upon by Emageon and
Ultravisual.
(i) No Inconsistent Requirements. No Action shall have been
commenced by any Government or Person (i) seeking to enjoin or prohibit the
transactions contemplated by this Agreement or any Additional Agreement, or (ii)
claiming that any Person (other than the Persons set forth in SECTION 7.5 of the
Ultravisual Disclosure Memorandum) is the holder or the beneficial owner of, or
has the right to acquire or to obtain beneficial ownership of, any capital
stock, or any other voting, equity, or ownership interest in Ultravisual, or is
entitled to all or any portion of the consideration payable for the Ultravisual
Shares.
(j) No Injunction. No temporary restraining order, preliminary or
permanent injunction or other Order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the parties to this Agreement will use all reasonable efforts to
have each and every relevant Order or injunction vacated or reversed prior to
the Closing Date.
(k) No Material Adverse Change. No Material Adverse Change shall
have occurred with respect to Ultravisual after the date of this Agreement.
(l) Additional Agreements and Closing Documents. Emageon shall
have received duly executed and delivered counterpart originals of each
Additional Agreement, signed by each Person that is to be a party thereto
including, with respect to the Amended Stockholders
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Agreement and the Registration Rights Agreement, each Ultravisual Stockholder
who is an Accredited Investor.
(m) Expenses Certificate. One Business Day prior to Closing,
Emageon and Merger Sub shall have received a certificate in form and substance
reasonably satisfactory to Emageon and executed by Ultravisual's Chief Executive
Officer or Chief Financial Officer, setting forth and certifying Ultravisual's
aggregate Liability for expenses through the Closing Date, including all amounts
paid through such date, which shall be accompanied by such supporting
information and calculations as are reasonably necessary for Emageon to verify
and determine such amount as of the Closing Date.
(n) Dissenting Shares. The number of Dissenting Shares shall not
exceed One Percent (1%) of the aggregate number of Ultravisual Shares as of the
Effective Time.
(o) Investor Certifications. Emageon shall have received from all
of the Ultravisual Stockholders Investor Certifications executed in favor of
Emageon, and duly executed Investor Certifications from Ultravisual Stockholders
holding at least 99% of the Ultravisual Shares indicating that such Ultravisual
Stockholders are Accredited Investors.
(p) Amount of Cash Consideration. The aggregate amount of Cash
Consideration payable by Emageon, together with the amount of cash Emageon
reasonably believes may be required to be paid to holders of Dissenting Shares,
shall not exceed $200,000 plus any amount owed by Emageon to Ultravisual on the
first date when all other conditions to closing set forth in this SECTION 6.1
have been satisfied.
(q) Powers of Attorney. Emageon shall have received a power of
attorney, in a form reasonably acceptable to Emageon, from each Ultravisual
Stockholder appointing the Stockholders' Representative and expressly agreeing
to the provisions set forth in SECTION 10 of this Agreement.
(r) Options. Emageon shall have received executed copies of
Cancellation Agreements from at least 93% of Persons holding Ultravisual
Options.
(s) Sale of Ultravisual Common Stock. Ultravisual shall have
purchased from Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxx, and shall not have
reissued, an aggregate of 200,000 shares of Ultravisual Common Stock at a price
per share no greater than $.01.
6.2. CONDITIONS TO OBLIGATIONS OF ULTRAVISUAL TO CLOSE. The obligations
of Ultravisual under this Agreement to consummate the Merger and the other
transactions contemplated by this Agreement are subject to the fulfillment and
satisfaction of each and every one of the following conditions at or prior to
the Closing, any or all of which may be waived in writing in whole or in part by
Ultravisual:
(a) Representations and Warranties. Each of the representations
and warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, the Emageon Business, Emageon and Merger Sub that is not qualified by
materiality shall have been true and correct in all material respects as of the
date when made and will be true and correct in all material respects on the
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Closing Date as though made again at and as of the Closing Date, and each of the
representations and warranties contained in this Agreement and in any
certificate, instrument, schedule, agreement or other writing delivered by or on
behalf of, or in respect of, the Emageon Business, Emageon and Merger Sub that
is qualified by materiality shall have been true and correct in all respects as
of the date when made and will be true and correct in all respects on the
Closing Date as though made again at and as of the Closing Date.
(b) Compliance with Covenants and Conditions. Emageon and Merger
Sub shall have performed and complied with all covenants, agreements and
satisfied all conditions required by this Agreement to be performed or complied
with by them, or satisfied by them prior to or on the Closing Date.
(c) Requisite Stockholder Approval. This Agreement, the Merger and
the transactions contemplated herein shall have been duly and validly approved
by the Emageon Stockholders (to the extent necessary), in accordance with
Emageon's Governance Documents and the DGCL. This Agreement, the Merger and the
transactions contemplated herein shall have been duly and validly approved by
the Emageon, as the sole stockholder of Merger Sub, in accordance with Merger
Sub's Governance Documents and the DGCL.
(d) Closing Certificates. Each of Emageon and Merger Sub shall
have delivered to Ultravisual certificates, executed by such officers as
Ultravisual shall request, dated as of the Closing, certifying in such detail as
Ultravisual may request as to the fulfillment and satisfaction of the conditions
specified in SECTIONS 6.2(a), 6.2(b) AND 6.2(c).
(e) Government Consents. Emageon, Merger Sub and Ultravisual shall
have received all authorizations, consents and approvals of any Government
necessary or desirable for the execution, delivery and performance of this
Agreement, the Merger and the other transactions contemplated hereby, all such
authorizations, consents and approvals shall be in full force and effect, and
all notices required to be given to any Government shall have been given and all
applicable waiting periods shall have expired.
(f) Consents. Emageon and Merger Sub shall have delivered to
Ultravisual all registrations, permits, filings, applications, notices,
consents, approvals, orders, qualifications, and authorizations of all Persons
from which such consents are required for the execution, delivery and
performance of this Agreement and the transactions contemplated hereby, and none
of such authorizations, consents or approvals shall be subject to any
restrictions or conditions that require any payment to the consenting or
approving party by Ultravisual, Merger Sub or Emageon or that materially
adversely affect the Emageon Business, Merger Sub, Emageon, or Emageon's assets,
properties, liabilities, results of operations, condition (financial or
otherwise) or prospects.
(g) Secretary's Certificate. Ultravisual shall have received a
certificate dated the Closing Date from (i) the Secretary of Emageon certifying
as to (A) the Certificate of Incorporation and Bylaws of Emageon, (B) the
resolutions of the Board of Directors and stockholders of Emageon approving the
execution, delivery and performance of this Agreement and any Additional
Agreements, the transactions contemplated hereby and thereby, the taking of any
and all other actions necessary to enable Emageon to comply with the terms
hereof and the
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Additional Agreements and to consummate the Merger and the other transactions
contemplated in this Agreement and the Additional Agreements, and (C) the
incumbency of the officers of Emageon executing this Agreement and any
Additional Agreements and (ii) the Secretary of Merger Sub certifying as to (A)
the Certificate of Incorporation and Bylaws of Merger Sub, (B) the resolutions
of the Board of Directors and sole stockholder of Merger Sub approving the
execution, delivery and performance of this Agreement and any Additional
Agreements, the transactions contemplated hereby and thereby, the taking of any
and all other actions necessary to enable Merger Sub to comply with the terms
hereof and the Additional Agreements and to consummate the Merger and the other
transactions contemplated in this Agreement and the Additional Agreements, and
(C) the incumbency of the officers of Merger Sub executing this Agreement and
any Additional Agreements and
(h) Legal Opinion. Ultravisual shall have received from Xxxxxxxxxx
Xxxxxxxx, LLP, legal counsel to Emageon, a legal opinion addressed to
Ultravisual dated the Closing Date in a form reasonably agreed upon by Emageon
and Ultravisual.
(i) No Inconsistent Requirements. No Action shall have been
commenced by any Government or Person (y) seeking to enjoin or prohibit the
transactions contemplated by this Agreement or any Additional Agreement, or (z)
claiming that any Person is the holder or the beneficial owner of, or has the
right to acquire or to obtain beneficial ownership of, any capital stock, or any
other voting, equity, or ownership interest in Emageon or Merger Sub.
(j) No Injunction. No temporary restraining order, preliminary or
permanent injunction or other Order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the parties to this Agreement will use all reasonable efforts to
have each and every relevant Order or injunction vacated or reversed prior to
the Closing Date.
(k) No Material Adverse Change. No Material Adverse Change shall
have occurred with respect to Emageon after the date of this Agreement.
(l) Additional Agreements and Closing Documents. Ultravisual shall
have received duly executed and delivered execution counterpart originals of
each Additional Agreement, signed by each Person that is to be a party thereto.
(m) Personal Guaranties. Xxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxx
and Xxxx X. Xxxxxxxx shall have received indemnification agreements, in a form
reasonably acceptable to each such individual and Emageon, from Emageon
indemnifying such individuals from any claims, not to exceed the lesser of the
amount owed to the Wisconsin Department of Commerce on the Closing Date and
$250,000 in the aggregate, made by the Wisconsin Department of Commerce in
connection with those certain personal guaranties issued to the Wisconsin
Department of Commerce made by such individuals prior to the date hereof;
provided, however, that such indemnification agreements shall not be required to
be given by Emageon if, prior to Closing, such personal guaranties have been
released.
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(n) Tax-Free Status. Ultravisual shall have reasonably
determined that the Merger will for federal income tax purposes constitute a
reorganization within the meaning of Section 368 of the Code.
6.3. ADDITIONAL ACTION. Each of Emageon and the Surviving Corporation
may, at any time and from time to time from and after the Effective Time, take
any action, including executing and delivering any document, in the name and on
behalf of Ultravisual, in order to consummate and give effect to the
transactions contemplated by this Agreement.
6.4. EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the applicable provisions of the DGCL with respect to mergers of domestic
corporations.
6.5. TAX CONSEQUENCES. It is intended that the Merger will constitute a
reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(E) of
the Code and that this Agreement constitutes a plan of reorganization for
purposes of Sections 354 and 361 of the Code. Each of Emageon, Merger Sub and
Ultravisual will be a party within the meaning of Section 368(b) of the Code to
such reorganization.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF ULTRAVISUAL
Ultravisual has delivered to Emageon a disclosure memorandum (the
"ULTRAVISUAL DISCLOSURE MEMORANDUM") setting forth any and all exceptions or
supplemental information to the representations and warranties contained in this
SECTION 7. The disclosures set forth in the Ultravisual Disclosure Memorandum
qualify or supplement only those representations and warranties specifically
referenced and referred to in the Ultravisual Disclosure Memorandum, and a
disclosure or supplement related to any particular representation, warranty or
covenant shall not qualify or supplement any other representation, warranty or
covenant unless evident by its context or unless expressly stated. To induce
Emageon and Merger Sub to enter into this Agreement and to consummate the
transactions contemplated by this Agreement, subject to the qualifications set
forth in the Ultravisual Disclosure Memorandum, Ultravisual represents and
warrants as follows:
7.1. EXISTENCE
(a) Ultravisual is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
corporate power and is entitled to own or lease its assets and properties and to
carry on its business as such business is being conducted and to carry on its
business in the places where its business is conducted and its assets and
properties are owned or leased. Ultravisual has delivered to Emageon true,
correct and complete copies of (i) the Certificate of Incorporation and Bylaws
of Ultravisual, as amended to date, (ii) the minutes and other similar records
of meetings of the stockholders of Ultravisual and its Board of Directors, which
contain all records of meetings and actions taken in lieu thereof by
Ultravisual's stockholders and Board of Directors and show all corporate actions
taken by Ultravisual's stockholders and the Board of Directors, or any
committees thereof, (iii) its share transfer records, which reflect fully all
issuances, transfers and redemptions of Ultravisual's shares since the date of
its incorporation, and (iv) certificates of authority evidencing qualification
as a foreign corporation where required.
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(b) Section 7.1(b) of the Ultravisual Disclosure Memorandum lists
all locations where Ultravisual currently owns or leases real property or has an
office or place of business and all trading names under which Ultravisual has
conducted its affairs.
7.2. AUTHORITY; INCONSISTENT OBLIGATIONS
(a) Ultravisual has the full right, power and authority to execute
and deliver and to perform and comply with this Agreement and the Additional
Agreements to which it is or will be a party. Except for required stockholder
approvals, all proceedings and actions required to be taken by Ultravisual to
authorize the execution, delivery and performance of this Agreement and the
Additional Agreements have been taken. This Agreement and each Additional
Agreement to which it is or will be a party, have been, or in the case of any
Additional Agreement will be at the Closing, when and if executed and delivered
by Ultravisual, duly and validly executed and delivered by Ultravisual, by its
duly authorized officers or representatives. This Agreement constitutes, and
each Additional Agreement when executed and delivered will constitute, assuming
the due authorization, execution and delivery by the other parties to such
agreements, the valid and legally binding obligation, subject to general equity
principles, of Ultravisual party thereto enforceable in accordance with its
respective terms.
(b) Neither the execution and delivery of this Agreement or of the
Additional Agreements by Ultravisual, nor the consummation of the transactions
contemplated by this Agreement or by any Additional Agreement, will (i) result
in a violation of the Certificate of Incorporation or Bylaws of Ultravisual,
(ii) violate any Law or Order applicable to Ultravisual, or (iii) result in a
breach of, conflict with or default under, any term or provision of any material
indenture, note, mortgage, bond, security agreement, loan agreement, guaranty,
pledge, or other instrument, contract, agreement or commitment to which
Ultravisual is, or will be upon consummation of the transactions contemplated by
this Agreement be, a party or by which it or any of its assets, properties, or
businesses is subject or bound; nor will these actions result in (x) the
creation of any Lien on any such asset, property or business, or the revenues or
profits of Ultravisual, (y) the acceleration or creation of any obligation of
Ultravisual, or (z) the forfeiture of any material right or privilege of
Ultravisual that may affect its ability to perform under this Agreement or any
Additional Agreement or to carry on its business.
7.3. NO VIOLATION; COMPLIANCE WITH LAWS. Ultravisual is not in default
under or in violation of (a) its Certificate of Incorporation or Bylaws, or (b)
any Order, and Ultravisual's business has been conducted, in all material
respects, in accordance with, and are in compliance in all material respects
with, all applicable Laws.
7.4. NO SUBSIDIARIES. Ultravisual does not own or Control, directly or
indirectly, any capital stock or proprietary interest or investment in any
Person.
7.5. CAPITALIZATION. The authorized, issued and outstanding capital stock
of Ultravisual is as set forth in Section 7.5 of the Ultravisual Disclosure
Memorandum. Section 7.5 of the Ultravisual Disclosure Memorandum contains a
true, complete and accurate list as of the date of this Agreement of (i) all
record and beneficial holders of capital stock of Ultravisual, including the
number of shares of capital stock held by each such holder, and (ii) all
outstanding warrants, options, agreements, convertible securities or other
commitments pursuant to which
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Ultravisual is or may become obligated to issue any shares of the capital stock
or other securities of Ultravisual, and lists the names of each Person entitled
to receive such shares or other securities and the shares of capital stock or
other securities required to be issued thereunder. There are no preemptive or
similar rights to purchase or otherwise acquire shares of capital stock of
Ultravisual pursuant to any provision of Law or any agreement to which
Ultravisual is a party that have not been effectively waived; and Ultravisual is
not a party to, and there is, and immediately following the Effective Time there
will be, no agreement, restriction or Lien with respect to the sale or voting of
any shares of capital stock of Ultravisual (whether outstanding or issuable upon
conversion, exchange or exercise of outstanding securities). All shares of the
capital stock and other securities issued by Ultravisual prior to the Closing
have been issued in transactions exempt from registration under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and all applicable state
securities or "blue sky" laws. Ultravisual has not violated the Securities Act
or any applicable state securities or "blue sky" laws in connection with the
issuance of any shares of capital stock or other securities prior to the
Closing.
7.6. CONSENTS. The execution and delivery by Ultravisual of this
Agreement and the Additional Agreements, the consummation of the transactions
contemplated in this Agreement or the Additional Agreements, the conduct by the
Surviving Corporation of Ultravisual's business on and after the Effective Time,
and the performance by Ultravisual of its obligations under or pursuant to this
Agreement or any Additional Agreement, as appropriate, do not (a) require the
consent or approval of, or any filing with or notice to, any Government or other
Person, (b) require the consent or approval of Ultravisual's stockholders
(except for such consents or approvals as have been obtained or will have been
obtained prior to Closing), or (c) impose any other material term, condition or
restriction on Ultravisual's business, assets or properties, or the conduct or
ownership and exploitation thereof by the Surviving Corporation following the
Effective Time pursuant to any Order or Law.
7.7. POSSESSION OF LICENSES, ETC. Ultravisual possesses all material
certificates, licenses, permits and other authorizations from Governments
(collectively, the "ULTRAVISUAL PERMITS") that are necessary for the ownership,
maintenance and operation of its assets and properties and the conduct of its
businesses as presently conducted and intended to be conducted, and Ultravisual
is not and has not been in violation of any such Ultravisual Permits. All
Ultravisual Permits held by Ultravisual necessary for the conduct of its
businesses as presently conducted and intended to be conducted are in full force
and effect, and neither the validity nor continuance of which will be adversely
affected by the consummation of the transactions contemplated by this Agreement.
7.8. SUFFICIENCY OF ASSETS. The assets and properties of Ultravisual
constitute all of the assets necessary to operate Ultravisual's business as
presently conducted and intended to be conducted. There are no other assets or
properties required or necessary to the operation of Ultravisual's business as
presently conducted and intended to be conducted.
7.9. ULTRAVISUAL FINANCIAL STATEMENTS; LIABILITIES
(a) Prior to the date of this Agreement, Ultravisual has delivered
to Emageon copies of the unaudited consolidated balance sheet and the related
consolidated statements of operations, stockholders' equity and cash flows as at
December 31, 2002 and for the fiscal year
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then ended, as well as Ultravisual's unaudited consolidated balance sheet as at
February 28, 2003 (the "ULTRAVISUAL REFERENCE DATE"), which is Ultravisual's
most recent balance sheet (the "ULTRAVISUAL REFERENCE DATE BALANCE SHEET"; such
financial statements, collectively, the "ULTRAVISUAL FINANCIAL STATEMENTS").
Except as set forth in Section 7.9 of the Ultravisual Disclosure Memorandum, the
Ultravisual Financial Statements have been prepared from the books and records
of Ultravisual and have been prepared in accordance with GAAP consistently
applied (except for the omission of notes required by GAAP and, in the case of
the Ultravisual Reference Date Balance Sheet, normal year-end adjustments, none
of which will be material) and present fairly the financial condition of the
entities covered thereby as at the respective dates thereof and the revenues,
expenses and income (loss), and cash flows for the respective periods then
ended. Except as set forth on Section 7.9(a) of the Ultravisual Disclosure
Schedule, the books and records of Ultravisual are maintained in accordance with
GAAP and are true, correct and complete in all material respects.
(b) Ultravisual has no material Liabilities, except (i) those
reflected on the Ultravisual Reference Date Balance Sheet, (ii) Liabilities
incurred in the ordinary course of business consistent with past practices since
the Ultravisual Reference Date, and (iii) as may be set forth in Section 7.9(b)
of the Ultravisual Disclosure Memorandum.
7.10. TITLE TO PROPERTIES
(a) Ultravisual has good and valid title to all properties and
assets reflected in the Ultravisual Reference Date Balance Sheet, except
inventories and other immaterial assets that have been disposed of in the
ordinary course of business since the Ultravisual Reference Date, and all other
properties and assets necessary to conduct its business as currently being
conducted and as conducted during the periods covered by the Ultravisual
Financial Statements (other than any leased property), free and clear of Liens,
except as may be set forth in the notes to the Ultravisual Reference Date
Balance Sheet.
(b) All of the machinery, equipment, vehicles, and other items of
personal property, including without limitation computer equipment, servers and
networking equipment, owned or leased by Ultravisual are in good condition and
repair in all material respects, subject to normal wear and tear, suited for the
use intended, and are and have been operated in all material respects in
conformity with all applicable insurance requirements, manufacturer's operating
manuals, manufacturer's warranties, and applicable Orders and Laws. There are no
defects or conditions which would cause the movable property to be or become
inoperable or unsafe.
(c) All lessors of any machinery, equipment or other movable
property leased by Ultravisual have in all material respects performed and
satisfied their respective duties and obligations under the leases, and no
Action has been brought or threatened against any relevant lessor for failure to
perform and satisfy its duties and obligations under the relevant lease.
7.11. REAL PROPERTY
(a) Ultravisual does not own any real or immovable property except
as listed in SECTION 7.11 of the Ultravisual Disclosure Memorandum. Ultravisual
is lawfully occupying
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and using the real property described in Section 7.11 of the Ultravisual
Disclosure Memorandum (collectively, the "ULTRAVISUAL LEASED REAL PROPERTY").
(b) All leases or other material agreements with respect to
Ultravisual's possession or use of Ultravisual Leased Real Property
(collectively, the "ULTRAVISUAL PROPERTY LEASES") are listed in Section 7.11 of
the Ultravisual Disclosure Memorandum. Each of the Ultravisual Property Leases
is freely assignable or may be freely sublet. The interest of Ultravisual in and
under each of the Ultravisual Property Leases is free and clear of any material
defects, claims or Liens and subject to no pending or threatened Action.
7.12. INTELLECTUAL PROPERTY RIGHTS
(a) Ownership. Ultravisual has sufficient title and ownership of,
or rights to use, all trademarks, service marks, trade names, copyrights, trade
secrets, confidential and proprietary information, software, compositions of
matter, formulas, designs, proprietary rights, know-how, processes, and all
patents, patent applications and other intellectual property necessary to enable
it to carry on its business as presently conducted and intended to be conducted,
without any conflict with or infringement of the rights of others. Section
7.12(a) of the Ultravisual Disclosure Memorandum identifies each of the
foregoing that is material to Ultravisual's business as presently conducted or
intended to be conducted, including any registrations thereof or applications to
register any thereof. Except as set forth in Section 7.12(a) of the Ultravisual
Disclosure Memorandum, there are no material outstanding options, licenses or
agreements relating to the foregoing, nor is Ultravisual bound by or a party to
any material options, licenses or agreements with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets or
confidential and proprietary information of any other Person relating to its
business. Ultravisual has not received any communications alleging that it has
violated or, by conducting its business as presently conducted or intended to be
conducted, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
Person. All employees of Ultravisual whose employment responsibility requires
access to confidential or proprietary information of Ultravisual have executed
and delivered nondisclosure and assignment of invention and work product
agreements, copies of which have been provided to Emageon. Ultravisual uses
appropriate efforts to maintain the confidentiality of its confidential
information and to protect its trade secrets. Ultravisual has not granted any
exclusive licenses or distributorships to any Person with respect to any of its
copyrights, trademarks, patents, or other intellectual property, other than as
described in Section 7.12(a) of the Ultravisual Disclosure Memorandum.
(b) No Infringement. Ultravisual has not violated or infringed,
and is not currently violating or infringing, and Ultravisual has not received
any communications alleging that Ultravisual (or any of its employees or
consultants) has violated or infringed, any proprietary rights or assets of any
other Person relating to Ultravisual's business as presently conducted or
intended to be conducted.
(c) No Breach by Employee. To the Knowledge of Ultravisual, no
employee of Ultravisual is obligated under any agreement (including licenses,
covenants or commitments of any nature) or subject to any judgment, decree or
order of any court of administrative agency, or any other restriction that would
interfere with the use of his or her best efforts to carry out his
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or her duties for Ultravisual in conducting Ultravisual's business or to promote
the interest of Ultravisual in conducting Ultravisual's business, or that would
conflict with the carrying on of Ultravisual's business by Ultravisual. The
conduct of Ultravisual's business does not conflict with or breach the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which Ultravisual or, to the Knowledge of
Ultravisual, any of its employees or consultants, is now obligated. To the
Knowledge of Ultravisual, no other or prior employer of any employee or
consultant of Ultravisual has any right to or interest in any inventions,
improvements, discoveries or other information used in Ultravisual's business
and assigned to Ultravisual by such employee pursuant to the above-mentioned
nondisclosure and assignment of inventions agreement executed by such employee,
or otherwise assigned.
7.13. CONTRACTS. Section 7.13 of the Ultravisual Disclosure Memorandum
contains a true, correct and complete list of all Material Contracts of
Ultravisual. Ultravisual has, prior to the date of this Agreement, delivered or
made available to Emageon a true, correct and complete copy of each of its
Material Contracts or, in the case of an oral contract, provided a true and
correct summary. None of Ultravisual's Material Contracts or other obligations,
agreements or commitments of Ultravisual (collectively, with the Material
Contracts, the "ULTRAVISUAL CONTRACTS"), individually or together, constitute an
unlawful restraint of trade under any applicable Law. All obligations required
to be performed by Ultravisual prior to the date hereof under any Ultravisual
Contract have been performed in all material respects in accordance with their
terms and no claim exists in respect of any Ultravisual Contract. All of the
Ultravisual Contracts are valid, binding and enforceable in accordance with
their terms, and are in full force and effect, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights generally and to general equitable principles; no
event has occurred which would constitute a material default (whether with or
without notice, lapse of time or the happening or occurrence of any event) under
any Ultravisual Contract; all parties to any Ultravisual Contract have consented
(where any relevant consent is necessary) to (or will consent to prior to
Closing) the consummation of the transactions contemplated by this Agreement
without requiring modification in the rights or obligations thereunder; and
consummation of the transactions contemplated by this Agreement will not result
in any other party thereto having the right to terminate any such Ultravisual
Contract or to accelerate performance thereunder. Ultravisual is not a party to
any agreement or contract with, or has any obligation to, any broker, finder, or
similar Person with respect to this transaction, and no broker, finder or
similar Person has any claim against or demands for commissions or other
compensation against Ultravisual or Emageon.
7.14. LITIGATION; CONTINGENCIES. There are no Actions existing or, to the
Knowledge of Ultravisual, threatened against, by or affecting Ultravisual or its
business, or any of its property, business, revenues or assets, in any Forum.
Ultravisual has not been charged with, and is not under investigation with
respect to, any charge concerning any violation of any provision of any Law.
There are no unsatisfied judgments or Orders against Ultravisual to which it or
its assets and properties are subject.
7.15. TAXES. Ultravisual has timely filed all federal, state, local and
foreign Tax and information returns required to be filed by it, has timely paid
all Taxes required to be paid by it for which payment is due, has established an
adequate accrual or reserve for the payment of all Taxes payable in respect of
the periods subsequent to the periods covered by its most recent
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applicable Tax returns (which accrual or reserve is fully reflected on the
Ultravisual Reference Date Balance Sheet), has made all necessary estimated Tax
payments, and has no liability for Taxes in excess of the amount so paid or
accruals or reserves so established. All such returns and reports are true,
correct and complete, and Ultravisual has provided Emageon with true and correct
copies of such returns and reports. Ultravisual is not delinquent in the payment
of any Tax or in the filing of any Tax returns, and no deficiencies for any Tax
have been threatened, claimed, proposed or assessed against Ultravisual, or any
of its officers, employees or agents in their capacity as such. Ultravisual has
not received any notification from the Internal Revenue Service or any other
taxing authority regarding any material issues that: (a) are currently pending
before the Internal Revenue Service or any other taxing authority (including,
but not limited to, any sales or use taxing authority) regarding Ultravisual or
any of its subsidiaries or (b) have been raised by the Internal Revenue Service
or other taxing authority and not yet finally resolved. No Tax return of
Ultravisual is under audit by the Internal Revenue Service or any state or local
Taxing agency or authority and any such past audits (if any) have been completed
and fully resolved to the satisfaction of the applicable taxing authority
conducting such audit and all Taxes and any penalties or interest determined by
such audit to be due from Ultravisual have been paid in full to the applicable
Taxing authorities. No Tax Liens are currently in effect against any assets of
Ultravisual nor are there any other Liens which arise by operation of law for
Taxes not yet due and payable. There is not in effect any waiver by Ultravisual
of any statute of limitations with respect to any Taxes to any extension of time
for filing any Tax return which has not been filed; and Ultravisual has not
consented to extend to a date later than the date hereof the period in which any
Tax may be assessed or collected by any taxing authority. Ultravisual is not a
"personal holding company" within the meaning of the Code. Ultravisual has not
filed any election under Section 341(f) of the Code. Ultravisual has withheld
with respect to each of its employees and independent contractors all Taxes,
including but not limited to federal and state income Taxes, FICA, Medicare,
FUTA and other Taxes, required to be withheld, and paid such withheld amounts to
the appropriate taxing authority within the time prescribed by law.
7.16. EMPLOYMENT AND LABOR MATTERS
(a) Ultravisual is not a party to any collective bargaining
agreement or agreement of any kind with any union or labor organization, and no
union or other collective bargaining unit has been certified or recognized by
Ultravisual as representing any Ultravisual employee. There are no Actions
pending or threatened, between Ultravisual and any labor union or collective
bargaining unit representing, any of its employees. There has been no attempt by
any union or other labor organization to organize any of Ultravisual's employees
at any time. Ultravisual has complied with all applicable Laws relating to
wages, hours, health and safety, payment of social security, withholding and
other Taxes, maintenance of worker's compensation insurance, labor and
employment relations, and employment discrimination, including the Americans
with Disabilities Act.
(b) Section 7.16 of the Ultravisual Disclosure Memorandum lists
all contracts, agreements or arrangements (written or oral) concerning the
employment of any individual or retention of any consultant by Ultravisual,
including each such individual's title.
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(c) To the Knowledge of Ultravisual, no employee, agent,
consultant or independent contractor who performs services on a regular basis
for Ultravisual plans to discontinue such relationship with Ultravisual after
the Closing.
7.17. COMPLIANCE WITH ERISA, ETC
(a) Section 7.17(a) of the Ultravisual Disclosure Memorandum lists
all plans, programs, and similar arrangements, commitments or agreements
maintained by or on behalf of Ultravisual or any other party that provides
benefits or compensation to, or for the benefit of, current or former employees
of Ultravisual, including pension, retirement, deferred compensation, stock
option, stock purchase, stock ownership, savings, stock appreciation right,
profit sharing, group insurance, severance, and other benefit plans, contracts
and agreements (collectively, the "ULTRAVISUAL EMPLOYEE BENEFIT PLANS"). With
respect to each Ultravisual Employee Benefit Plan, to the extent applicable,
Ultravisual has supplied Emageon a true and correct copy of (i) the plan
document, including amendments thereto, (ii) the annual report on the applicable
Form 5500 series filed with the IRS for the most recent three plan years, (iii)
each trust agreement, insurance contract or other funding arrangement relating
to such Ultravisual Employee Benefit Plan, including amendments thereto, (iv)
the most recent Summary Plan Description and material employee communications
for such Ultravisual Employee Benefit Plan, (v) the most recent actuarial report
or valuation, and (vi) the most recent IRS determination letter.
(b) Each of Ultravisual Employee Benefit Plans (i) is in
substantial compliance with all applicable provisions of ERISA, the Code, and
all other applicable laws, (ii) has been administered, operated and managed in
accordance with its governing documents, and (iii) has timely filed or
distributed all reports and other documents required to be filed with any
Governmental agency or distributed to plan participants or beneficiaries
(including annual reports, summary annual reports (Form 5500s), summary plan
descriptions, actuarial reports, PBGC-1 Forms, or returns).
(c) All Ultravisual Employee Benefit Plans that are intended to be
qualified under Section 401(a) of the Code are so qualified and have received a
favorable determination letter from the IRS, and Ultravisual is not aware of any
circumstances likely to result in the revocation of any such favorable
determination letter.
(d) Ultravisual does not maintain, nor has it within the past 6
years maintained, for the benefit of current or former employees of Ultravisual,
a "defined benefit plan" subject to Title IV of ERISA.
(e) With respect to each Ultravisual Employee Benefit Plan,
neither such plan, or any trustee, administrator, party in interest, fiduciary,
agent or employee thereof, nor Ultravisual has engaged in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975) or been in
breach of any fiduciary obligations.
(f) Ultravisual has the right to amend, modify, or terminate any
Ultravisual Employee Benefit Plan without incurring any liability thereunder,
except as to any benefits accrued prior to such amendment, modification, or
termination. Ultravisual does not have any
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obligations for post-retirement or post-employment benefits under any employee
benefit plan that cannot be amended or terminated upon sixty (60) days advance
notice, except as required by Section 601 of ERISA and Section 4980(b) of the
Code.
(g) Except as specifically identified in Section 7.17(g) of the
Ultravisual Disclosure Memorandum, the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not result in
any payment or series of payments by Ultravisual to any person which is an
"excess parachute payment" (as defined in Section 280G of the Code), increase or
secure (by way of a trust or other vehicle) any benefits payable under any
Ultravisual Employee Benefit Plan, or accelerate time of payment or vesting of
any such benefit.
(h) Neither Ultravisual nor any other entity considered to be one
employer with Ultravisual under Section 4001 of ERISA or Section 414 of the Code
(an "ERISA AFFILIATE") is, or at any time during the six-year period ended on
the date hereof was, obligated to contribute to a multiemployer plan, as defined
in Section 3(37) of ERISA.
(i) No litigation or claims (other than routine claims for
benefits) are pending or, to the Knowledge of Ultravisual, threatened against,
or with respect to, any of the Ultravisual Employee Benefit Plans or with
respect to any fiduciary, administrator, sponsor (in their capacities as such),
or any party-in-interest thereof.
7.18. BOOKS AND RECORDS. The books, records and accounts of Ultravisual
(i) have been maintained in accordance with good business practices on a
consistent basis, (ii) are stated in reasonable detail and accurately and fairly
reflect the transactions related to Ultravisual and (iii) accurately and fairly
reflect the basis for the Ultravisual Financial Statements. Ultravisual has
devised and maintained systems of internal accounting controls sufficient to
provide reasonable assurances that (y) transactions are executed in accordance
with management's general or specific authorization, and (z) transactions are
recorded as necessary (A) to permit preparation of financial statements in
conformity with GAAP and (B) to maintain accountability for assets.
7.19. AGREEMENTS AND TRANSACTIONS WITH RELATED PARTIES. Except as set
forth in Section 7.19 of the Ultravisual Disclosure Memorandum, Ultravisual is
not, directly or indirectly, a party to any contract, agreement, or lease with,
or any other arrangement with or commitment to, in each case whether oral or
written, any Related Party of Ultravisual.
7.20. NO AGREEMENT IN ANTICIPATION OF SALE. Except as contemplated in this
Agreement, Ultravisual has not, directly or indirectly, taken any action or
actions or entered into any agreements in anticipation of this Agreement. The
consummation of the transactions contemplated by this Agreement will not entitle
any employee of Ultravisual to severance pay nor will it accelerate the time of
payment, vesting or increase the amount of any compensation or benefits due to
any employee of Ultravisual.
7.21. ENVIRONMENTAL MATTERS. Ultravisual holds all Environmental Permits
necessary for conducting its business and operations as currently conducted and
as intended to be conducted, and has conducted, and is presently conducting, its
business and operations in full compliance with all applicable Environmental
Laws, and Environmental Permits including,
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without limitation, all record keeping and filing requirements. There is no
existing or pending Environmental Law with a future compliance date that will
require operational changes, business practice modifications or capital
expenditures at any Ultravisual Leased Real Property (or any other property
presently or formerly owned, operated or controlled by Ultravisual or as to
which Ultravisual may bear responsibility or Liability), or any of the
Improvements thereon. All Hazardous Materials and Solid Waste, on, in, or under
the Ultravisual Leased Real Property (or such other property), wherever located,
have been properly removed and disposed of, and no past or present disposal,
discharge, spill or other release of, or treatment transportation or other
handling of Hazardous Materials or Solid Waste on, in, under or off-site from
any Ultravisual Leased Real Property (or other property), or adjacent property,
will subject Ultravisual or any subsequent owner, occupant or operator of such
Ultravisual Leased Real Property (or other property) to corrective or compliance
action or any other Liability. There are no presently pending or, to the
Knowledge of Ultravisual, threatened Actions or Orders against or involving
Ultravisual (including any Person for whose acts or omissions Ultravisual is
responsible) relating to any alleged past or ongoing violation of Environmental
Laws.
7.22. BANK ACCOUNTS AND SAFETY DEPOSIT BOXES. Section 7.22 of the
Ultravisual Disclosure Memorandum lists each bank in which Ultravisual maintains
an account or safety deposit box, the account numbers, and the names of all
persons authorized to draw thereon or have access thereto.
7.23. ABSENCE OF CHANGES. Except as expressly provided for in this
Agreement, since the Ultravisual Reference Date:
(a) there has been no change in the business, assets, properties,
debts, borrowings, Liabilities, affairs, results of operations, condition
(financial or otherwise), or cash flows of Ultravisual or its relationships with
suppliers, customers, employees, lessors or others, other than changes in the
ordinary course of business, none of which have had or will have, individually
or in the aggregate, a material adverse effect;
(b) there has been no damage, destruction or loss to any of the
assets or properties of Ultravisual, whether or not covered by insurance;
(c) Ultravisual has conducted its business in the ordinary course
and consistent with prior practices;
(d) no debt, borrowing or Liability of Ultravisual has been
discharged or satisfied, other than in the ordinary course of business and
consistent with prior practice;
(e) Ultravisual has not discontinued or determined to discontinue
the sale of any material products or services previously sold;
(f) there has been no sale, transfer, lease or other disposition
of any material asset or assets of Ultravisual, except in the ordinary course of
business, and no material debt to, or claim or right of, Ultravisual has been
canceled, compromised, waived or released;
(g) Ultravisual has not entered into any agreement, contract,
lease or license outside the ordinary course of business; and
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(h) Ultravisual has not delayed or postponed the payment of any
accounts payable and other debts, borrowings or Liabilities outside the ordinary
course of business, and all notes and accounts receivable relating to
Ultravisual have been collected in the ordinary course of business.
7.24. INFORMATION STATEMENT. The Information Statement shall not, on the
date the Information Statement is first mailed to the Ultravisual Stockholders,
at any time prior to Closing or at the Effective Time, contain any statement
which, at such time, is false or misleading with respect to any material fact,
or omits to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they are made, not false
or misleading; provided, however, that Ultravisual makes no representation or
warranty with respect to any information concerning Emageon which is contained
in the Information Statement and was provided to Ultravisual expressly for
inclusion in the Information Statement.
7.25. FULL DISCLOSURE. No representation or warranty of Ultravisual
contained in this Agreement, the Additional Agreements, the Ultravisual
Disclosure Memorandum, or any instrument, certificate, agreement or other
writing delivered by or on behalf of Ultravisual pursuant to this Agreement or
any Additional Agreement or in connection with the transactions contemplated
herein or therein contains any untrue or incomplete statement of a material fact
or omits to state a material fact necessary to make the statements contained
herein and therein not misleading.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF EMAGEON AND MERGER SUB
Emageon has prepared and delivered to Ultravisual a disclosure memorandum
(the "EMAGEON DISCLOSURE MEMORANDUM") setting forth any and all exceptions or
supplemental information to the representations and warranties contained in
SECTION 8 of this Agreement. The disclosures set forth in the Emageon Disclosure
Memorandum qualify or supplement only those representations and warranties
specifically referenced and referred to in the Emageon Disclosure Memorandum,
and a disclosure or supplement related to any particular representation,
warranty or covenant shall not qualify or supplement any other representation,
warranty or covenant unless evident by its context or unless expressly stated.
To induce Ultravisual and the Ultravisual Stockholders to enter into this
Agreement and to consummate the transactions contemplated by this Agreement,
subject to the qualifications set forth in the Emageon Disclosure Memorandum,
Emageon and Merger Sub, jointly and severally, represent and warrant to
Ultravisual and the Ultravisual Stockholders as follows:
8.1. EXISTENCE
(a) Each of Emageon and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and is entitled to own or lease its assets
and properties and to carry on its business as such business is being conducted
and to carry on its business in the places where its business is conducted and
its assets and properties are owned or leased. Emageon has delivered to
Ultravisual true, correct and complete copies of the (i) Certificate of
Incorporation and Bylaws of Emageon and Merger Sub, each as amended to date,
(ii) the minutes and other similar records of
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meetings of the stockholders and Board of Directors of Emageon and Merger Sub,
which contain all records of meetings and actions taken in lieu thereof by the
stockholders of each of Emageon and Merger Sub and show all corporate actions
taken by the stockholders of each of Emageon and Merger Sub and their respective
Boards of Directors, or any committees thereof, (iii) share transfer records for
each of Emageon and Merger Sub, which reflect fully all issuances, transfers and
redemptions of the shares of Emageon and Merger Sub since their respective dates
of its incorporation, and (iv) certificates of authority for Emageon evidencing
qualification as a foreign corporation where required.
(b) Section 8.1(b) of the Emageon Disclosure Memorandum lists all
locations where Emageon or Merger Sub currently owns or leases real property,
has an office or place of business and all trading names under which either
Emageon or Merger Sub has conducted its affairs.
8.2. AUTHORITY; INCONSISTENT OBLIGATIONS
(a) Each of Emageon and Merger Sub has the full right, power and
authority to execute and deliver and to perform and comply with this Agreement
and the Additional Agreements to which it is or will be a party. Except for
required stockholder approvals, all proceedings and actions required to be taken
by Emageon or Merger Sub to authorize the execution, delivery and performance of
this Agreement and the Additional Agreements have been taken. This Agreement and
each Additional Agreement to which Emageon or Merger Sub is or will be a party,
have been, or in the case of any Additional Agreement will be at the Closing,
duly and validly executed and delivered by Emageon or Merger Sub, as
appropriate, by its duly authorized officers or representatives. This Agreement
constitutes, and each Additional Agreement when executed and delivered will
constitute, the valid and legally binding obligation, subject to general equity
principles, of Emageon and Merger Sub, as applicable, enforceable in accordance
with its respective terms.
(b) Neither the execution and delivery of this Agreement or of the
Additional Agreements by Emageon and Merger Sub, as applicable, nor the
consummation of the transactions contemplated by this Agreement or by any
Additional Agreement, will (i) result in a violation of the Certificate of
Incorporation or Bylaws of Emageon or Merger Sub, (ii) violate any Law or Order
applicable to Emageon or Merger Sub, or (iii) result in a breach of, conflict
with or default under, any term or provision of any material indenture, note,
mortgage, bond, security agreement, loan agreement, guaranty, pledge, or other
instrument, contract, agreement or commitment to which Emageon or Merger Sub is,
or will be upon consummation of the transactions contemplated by this Agreement,
a party or by which Emageon or Merger Sub or any of Emageon's or Merger Sub's
assets, properties, or businesses is subject or bound; nor will these actions
result in (x) the creation of any Lien on any such asset, property or business
or the revenues or profits of Emageon or Merger Sub, (y) the acceleration or
creation of any obligation of Emageon or Merger Sub, or (z) the forfeiture of
any material right or privilege of Emageon or Merger Sub that may affect either
Emageon's or Merger Sub's ability to perform under this Agreement or any
Additional Agreement or to carry on its respective business.
8.3. NO VIOLATION; COMPLIANCE WITH LAWS. Neither Emageon nor Merger Sub is
in default under or in violation of (a) its Certificate of Incorporation or
Bylaws, or (b) any Order,
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and each of Emageon and Merger Sub has conducted its business, in all material
respects, in accordance with, and each of Emageon and Merger Sub is in
compliance in all material respects with, all applicable Laws.
8.4. NO SUBSIDIARIES. Except for Merger Sub, Emageon does not own or
Control, directly or indirectly, any capital stock or proprietary interest or
investment in any Person. Merger Sub does not own or Control, directly or
indirectly, any capital stock or proprietary interest or investment in any
Person.
8.5. CAPITALIZATION
(a) The authorized, issued and outstanding capital stock of
Emageon is as set forth in Section 8.5 of the Emageon Disclosure Memorandum.
Section 8.5 of the Emageon Disclosure Memorandum contains a true, complete and
accurate list as of the date of this Agreement of (i) all record and beneficial
holders of capital stock of Emageon and Merger Sub, including the number of
shares of capital stock held by each such holder, and (ii) all outstanding
warrants, options, agreements, convertible securities or other commitments
pursuant to which Emageon or Merger Sub is or may become obligated to issue any
shares of the capital stock or other securities of Emageon or Merger Sub, and
lists the names of each Person entitled to receive such shares or other
securities and the shares of capital stock or other securities required to be
issued thereunder. There are no preemptive or similar rights to purchase or
otherwise acquire shares of capital stock of Emageon or Merger Sub pursuant to
any provision of law or any agreement to which Emageon or Merger Sub is a party
that have not been effectively waived; and neither Emageon nor Merger Sub is a
party to, and there is, and, to Emageon's Knowledge, immediately upon the
consummation at the Closing of the transactions contemplated hereby to be
consummated at the Closing there will be, no agreement, restriction or Lien with
respect to the sale or voting of any shares of capital stock of Emageon or
Merger Sub other than the Amended Stockholders Agreement (whether outstanding or
issuable upon conversion, exchange or exercise of outstanding securities). All
shares of the capital stock and other securities issued by Emageon or Merger Sub
prior to the Closing have been issued in transactions exempt from registration
under the Securities Act, and all applicable state securities or "blue sky"
laws. Neither Emageon nor Merger Sub has violated the Securities Act or any
applicable state securities or "blue sky" laws in connection with the issuance
of any shares of capital stock or other securities prior to the Closing.
(b) The shares of Emageon Common Stock and Emageon Series D
Preferred Stock to be issued pursuant to the merger will be duly authorized,
validly issued and outstanding, fully paid and nonassessable and not subject to
preemptive rights created by the DGCL, Emageon's Certificate of Incorporation or
bylaws or any other agreement to which Emageon is bound, and, in reliance on the
representations made by the Ultravisual Stockholders in the Investor
Certifications, such shares are not required to be registered under the
Securities Act or any applicable state securities laws.
8.6. CONSENTS. The execution and delivery by Emageon and Merger Sub of
this Agreement and the Additional Agreements, the consummation of the
transactions contemplated in this Agreement or the Additional Agreements, the
conduct of their respective businesses on and after the Effective Time, and the
performance by them of their obligations under or pursuant
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to this Agreement or any Additional Agreement, as appropriate, do not (a)
require the consent or approval of, or any filing with or notice to, any
Government or other Person, (b) require the consent or approval of their
respective stockholders (except for such consents or approvals as have been
obtained or will have been obtained prior to Closing), or (c) impose any other
material term, condition or restriction on either Emageon's or Merger Sub's
respective business, assets or properties, or the conduct or ownership and
exploitation thereof by Emageon and the Surviving Corporation following the
Effective Time pursuant to any Order or Law.
8.7. POSSESSION OF LICENSES, ETC. Each of Emageon and Merger Sub possesses
all material certificates, licenses, permits and other authorizations from
Governments (collectively, the "EMAGEON PERMITS") that are necessary for the
ownership, maintenance and operation of its assets and properties and the
conduct of its businesses as presently conducted and intended to be conducted,
and Emageon is not and has not been in violation of any such Emageon Permits.
All Emageon Permits held by Emageon necessary for the conduct of its businesses
as presently conducted and intended to be conducted are in full force and
effect, and neither the validity nor continuance of which will be adversely
affected by the consummation of the transactions contemplated by this Agreement.
8.8. SUFFICIENCY OF ASSETS. The assets and properties of Emageon
constitute all of the assets necessary to operate Emageon's business as
presently conducted and intended to be conducted. There are no other assets or
properties required or necessary to the operation of Emageon's business as
presently conducted and intended to be conducted.
8.9. EMAGEON FINANCIAL STATEMENTS; LIABILITIES
(a) Prior to the date of this Agreement, Emageon has delivered or
made available to Ultravisual copies of the audited consolidated balance sheet
and the related consolidated statements of operations, stockholders' equity and
cash flows of Emageon, Inc. as at December 31, 2002 and for the fiscal year then
ended, as well as Emageon's unaudited consolidated balance sheet as at February
28, 2003 (the "EMAGEON REFERENCE DATE"), which is Emageon's most recent balance
sheet (the "EMAGEON REFERENCE DATE BALANCE SHEET"; such financial statements,
collectively, the "EMAGEON FINANCIAL STATEMENTS"). The Emageon Financial
Statements have been prepared from the books and records of Emageon and have
been prepared in accordance with GAAP consistently applied (except, in the case
of the Emageon Reference Date Balance Sheet, for the omission of notes required
by GAAP and normal year-end adjustments, none of which will be material) and
present fairly the financial condition of the entities covered thereby as at the
respective dates thereof and the revenues, expenses and income (loss), and cash
flows for the respective periods then ended. The books and records of Emageon
are maintained in accordance with GAAP and are true, correct and complete in all
material respects.
(b) Emageon has no material Liabilities, except (i) those
reflected on the Emageon Reference Date Balance Sheet, (ii) Liabilities incurred
in the ordinary course of business consistent with past practices since the
Emageon Reference Date, and (iii) as may be set forth in Section 8.9(b) of the
Emageon Disclosure Memorandum.
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8.10. TITLE TO PROPERTIES
(a) Emageon has good and valid title to all properties and assets
reflected in the Emageon Reference Date Balance Sheet, except inventories and
other immaterial assets which have been disposed of in the ordinary course of
business since the Emageon Reference Date, and all other properties and assets
necessary to conduct its business as currently being conducted and as conducted
during the periods covered by the Emageon Financial Statements (other than any
leased property), free and clear of Liens, except as may be set forth in the
notes to the Emageon Reference Date Balance Sheet.
(b) All of the machinery, equipment, vehicles, and other items of
personal property, including without limitation computer equipment, servers and
networking equipment, owned or leased by Emageon are in good condition and
repair in all material respects, subject to normal wear and tear, suited for the
use intended, and are and have been operated in all material respects in
conformity with all applicable insurance requirements, manufacturer's operating
manuals, manufacturer's warranties, and applicable Orders and Laws. There are no
defects or conditions which would cause the movable property to be or become
inoperable or unsafe.
(c) All lessors of any machinery, equipment or other movable
property leased by Emageon have in all material respects performed and satisfied
their respective duties and obligations under the leases, and no Action has been
brought or threatened against any relevant lessor for failure to perform and
satisfy its duties and obligations under the relevant lease.
8.11. REAL PROPERTY
(a) Emageon does not owns any real or immovable property except as
listed in Section 8.11 of the Emageon Disclosure Memorandum. Emageon is lawfully
occupying and using the real property described in Section 8.11 of the Emageon
Disclosure Memorandum (collectively, the "EMAGEON LEASED REAL PROPERTY").
(b) All leases or other material agreements with respect to
Emageon's possession or use of Emageon Leased Real Property (collectively, the
"EMAGEON PROPERTY LEASES") are listed in Section 8.11 of the Emageon Disclosure
Memorandum. The interest of Emageon in and under each of the Emageon Property
Leases is free and clear of any material defects, claims or Liens and subject to
no pending or threatened Action.
8.12. INTELLECTUAL PROPERTY RIGHTS
(a) Ownership. Emageon has sufficient title and ownership of, or
rights to use, all trademarks, service marks, trade names, copyrights, trade
secrets, confidential and proprietary information, software, compositions of
matter, formulas, designs, proprietary rights, know-how, processes, and all
patents, patent applications and other intellectual property necessary to enable
it to carry on its business as presently conducted and intended to be conducted,
without any conflict with or infringement of the rights of others. Section
8.12(a) of the Emageon Disclosure Memorandum identifies each of the foregoing
that is material to Emageon's business as presently conducted or intended to be
conducted, including any registrations thereof or applications to register any
thereof. Except as set forth on Section 8.12(a) of the Emageon Disclosure
Memorandum, there are no material outstanding options,
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licenses or agreements relating to the foregoing, nor is Emageon bound by or a
party to any material options, licenses or agreements with respect to the
patents, trademarks, service marks, trade names, copyrights, trade secrets or
confidential and proprietary information of any other Person relating to its
business. Emageon has not received any communications alleging that it has
violated or, by conducting its business as presently conducted or intended to be
conducted, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
Person. All employees of Emageon whose employment responsibility requires access
to confidential or proprietary information of Emageon have executed and
delivered nondisclosure and assignment of invention and work product agreements,
copies of which have been provided to Ultravisual. Emageon uses appropriate
efforts to maintain the confidentiality of its confidential information and to
protect its trade secrets. Emageon has not granted any exclusive licenses or
distributorships to any Person with respect to any of its copyrights,
trademarks, patents or other intellectual property, other than as described in
Section 8.12(a) of the Emageon Disclosure Memorandum.
(b) No Infringement. Emageon has not violated or infringed, and is
not currently violating or infringing, and Emageon has not received any
communications alleging that Emageon (or any of its employees or consultants)
has violated or infringed, any proprietary rights or assets of any other Person
relating to Emageon's business as presently conducted or intended to be
conducted.
(c) No Breach by Employee. To the Knowledge of Emageon, no
employee of Emageon is obligated under any agreement (including licenses,
covenants or commitments of any nature) or subject to any judgment, decree or
order of any court or administrative agency, or any other restriction that would
interfere with the use of his or her best efforts to carry out his or her duties
for Emageon in conducting Emageon's business or to promote the interest of
Emageon in conducting Emageon's business, or that would conflict with the
carrying on of Emageon's business by Emageon. The conduct of Emageon's business
does not conflict with or breach the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under which
Emageon or, to the Knowledge of Emageon, any of its employees or consultants, is
now obligated. To the Knowledge of Emageon, no other or prior employer of any
employee or consultant of Emageon has any right to or interest in any
inventions, improvements, discoveries or other information used in Emageon's
business and assigned to Emageon by such employee pursuant to the
above-mentioned nondisclosure and assignment of inventions agreement executed by
such employee, or otherwise assigned.
8.13. CONTRACTS. Section 8.13 of the Emageon Disclosure Memorandum
contains a true, correct and complete list of all Material Contracts of Emageon.
Emageon has, prior to the date of this Agreement, made available to Ultravisual
a true, correct and complete copy of each of its Material Contracts or, in the
case of an oral contract, provided a true and correct summary. None of Emageon's
Material Contracts or other obligations, agreements or commitments
(collectively, with the Material Contracts, the "EMAGEON CONTRACTS"),
individually or together, constitute an unlawful restraint of trade under any
applicable Law. All obligations required to be performed by Emageon prior to the
date hereof under any Emageon Contract have been performed in all material
respects in accordance with their terms and no claim exists in respect of any
Emageon Contract. All of the Emageon Contracts are valid, binding and
enforceable in accordance with their terms, and are in full force and effect,
subject to the effects of bankruptcy,
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insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally and to general equitable principles; no event has
occurred which would constitute a material default (whether with or without
notice, lapse of time or the happening or occurrence of any event) under any
Emageon Contract; all parties to any Emageon Contract have consented (where any
relevant consent is necessary) to (or will consent to prior to Closing) the
consummation of the transactions contemplated by this Agreement without
requiring modification in the rights or obligations thereunder; and consummation
of the transactions contemplated by this Agreement, will not result in any other
party thereto having the right to terminate any such Emageon Contract or to
accelerate performance thereunder. Emageon is not a party to any agreement or
contract with, or has any obligation to, any broker, finder, or similar Person
with respect to this transaction, and no broker, finder or similar Person has
any claim against or demands for commissions or other compensation against
Emageon.
8.14. LITIGATION; CONTINGENCIES. There are no Actions existing or, to the
Knowledge of Emageon, threatened against, by or affecting Emageon or its
business, or any of its property, business, revenues or assets, in any Forum.
Emageon has not been charged with, and is not under investigation with respect
to, any charge concerning any violation of any provision of any Law. There are
no unsatisfied judgments or Orders against Emageon to which Emageon or its
assets and properties are subject.
8.15. TAXES. Emageon has timely filed all federal, state, local and
foreign Tax and information returns required to be filed by it, has timely paid
all Taxes required to be paid by it for which payment is due, has established an
adequate accrual or reserve for the payment of all Taxes payable in respect of
the periods subsequent to the periods covered by its most recent applicable Tax
returns (which accrual or reserve is fully reflected on the Emageon Reference
Date Balance Sheet), has made all necessary estimated Tax payments, and has no
liability for Taxes in excess of the amount so paid or accruals or reserves so
established. All such returns and reports are true, correct and complete, and
Emageon has made available true and correct copies of such returns and reports.
Emageon is not delinquent in the payment of any Tax or in the filing of any Tax
returns, and no deficiencies for any Tax have been threatened, claimed, proposed
or assessed against Emageon, or any of its officers, employees or agents in
their capacity as such. Emageon has not received any notification from the
Internal Revenue Service or any other taxing authority regarding any material
issues that: (a) are currently pending before the Internal Revenue Service or
any other taxing authority (including, but not limited to, any sales or use
taxing authority) regarding Emageon or any of its subsidiaries or (b) have been
raised by the Internal Revenue Service or other taxing authority and not yet
finally resolved. No Tax return of Emageon is under audit by the Internal
Revenue Service or any state or local Taxing agency or authority and any such
past audits (if any) have been completed and fully resolved to the satisfaction
of the applicable taxing authority conducting such audit and all Taxes and any
penalties or interest determined by such audit to be due from Emageon have been
paid in full to the applicable Taxing authorities. No Tax Liens are currently in
effect against any assets of Emageon nor are there any other Liens which arise
by operation of law for Taxes not yet due and payable. There is not in effect
any waiver by Emageon of any statute of limitations with respect to any Taxes to
any extension of time for filing any Tax return which has not been filed; and
Emageon has not consented to extend to a date later than the date hereof the
period in which any Tax may be assessed or collected by any taxing authority.
Emageon is not a "personal holding company" within the meaning of the Code.
Emageon has not filed any election under
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Section 341(f) of the Code. Emageon has withheld with respect to each of its
employees and independent contractors all Taxes, including but not limited to
federal and state income Taxes, FICA, Medicare, FUTA and other Taxes, required
to be withheld, and paid such withheld amounts to the appropriate taxing
authority within the time prescribed by law.
8.16. EMPLOYMENT AND LABOR MATTERS
(a) Emageon is not a party to any collective bargaining agreement
or agreement of any kind with any union or labor organization, and no union or
other collective bargaining unit has been certified or recognized by Emageon as
representing any Emageon employee. There are no Actions pending or threatened,
between Emageon and any labor union or collective bargaining unit representing,
any of its employees. There has been no attempt by any union or other labor
organization to organize any of Emageon's employees at any time. Emageon has
complied with all applicable Laws relating to wages, hours, health and safety,
payment of social security, withholding and other Taxes, maintenance of worker's
compensation insurance, labor and employment relations, and employment
discrimination, including the Americans with Disabilities Act.
(b) Section 8.16(b) of the Emageon Disclosure Memorandum lists all
contracts, agreements or other arrangements (written or oral) concerning the
employment of any individual or retention of any consultant by Emageon,
including each such individual's title.
(c) To the Knowledge of Emageon, no employee, agent, consultant or
independent contractor who performs services on a regular basis for Emageon
plans to discontinue such relationship with Emageon after the Closing.
8.17. COMPLIANCE WITH ERISA, ETC
(a) Section 8.17(a) of the Emageon Disclosure Memorandum lists all
plans, programs, and similar arrangements, commitments or agreements maintained
by or on behalf of Emageon or any other party that provides benefits or
compensation to, or for the benefit of, current or former employees of Emageon,
including pension, retirement, deferred compensation, stock option, stock
purchase, stock ownership, savings, stock appreciation right, profit sharing,
group insurance, severance, and other benefit plans, contracts and agreements
(collectively, the "EMAGEON EMPLOYEE BENEFIT PLANS"). With respect to each
Emageon Employee Benefit Plan, to the extent applicable, Emageon has supplied
Ultravisual a true and correct copy of (i) the plan document, including
amendments thereto, (ii) the annual report on the applicable Form 5500 series
filed with the IRS for the most recent three plan years, (iii) each trust
agreement, insurance contract or other funding arrangement relating to such
Emageon Employee Benefit Plan, including amendments thereto, (iv) the most
recent Summary Plan Description and material employee communications for such
Emageon Employee Benefit Plan, (v) the most recent actuarial report or
valuation, and (vi) the most recent IRS determination letter.
(b) Each of the Emageon Employee Benefit Plans (i) is in
substantial compliance with all applicable provisions of ERISA, the Code, and
all other applicable laws, (ii) has been administered, operated and managed in
accordance with its governing documents, and (iii) has timely filed or
distributed all reports and other documents required to be filed with any
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Governmental agency or distributed to plan participants or beneficiaries
(including annual reports, summary annual reports (Form 5500s), summary plan
descriptions, actuarial reports, PBGC-1 Forms, or returns).
(c) All Emageon Employee Benefit Plans that are intended to be
qualified under Section 401(a) of the Code are so qualified and have received a
favorable determination letter from the IRS, and Emageon is not aware of any
circumstances likely to result in the revocation of any such favorable
determination letter.
(d) Emageon does not maintain, nor has it within the past 6 years
maintained, for the benefit of its current or former employees, a "defined
benefit plan" subject to Title IV of ERISA.
(e) With respect to each Emageon Employee Benefit Plan, neither
such plan, or any trustee, administrator, fiduciary, agent or employee thereof,
nor Emageon has engaged in any "prohibited transaction" (as defined in Section
406 of ERISA or Section 4975).
(f) Emageon has the right to amend, modify, or terminate any
Emageon Employee Benefit Plan without incurring any liability thereunder, except
as to any benefits accrued prior to such amendment, modification, or
termination. Emageon does not have any obligations for post-retirement or
post-employment benefits under any employee benefit plan that cannot be amended
or terminated upon sixty (60) days advance notice, except as required by Section
601 of ERISA and Section 4980(b) of the Code.
(g) Except as specifically identified in Section 8.17(g) of the
Emageon Disclosure Memorandum, the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not result in any
payment or series of payments by Emageon to any person which is an "excess
parachute payment" (as defined in Section 280G of the Code), increase or secure
(by way of a trust or other vehicle) any benefits payable under any Emageon
Employee Benefit Plan, or accelerate time of payment or vesting of any such
benefit.
(h) Neither Emageon nor any of its ERISA Affiliates is, or at any
time during the six-year period ended on the date hereof was, obligated to
contribute to a multiemployer plan, as defined in Section 3(37) of ERISA.
(i) To the Knowledge of Emageon, no litigation or claims (other
than routine claims for benefits) are pending or, to the Knowledge of Emageon,
threatened against, or with respect to, any of Emageon Employee Benefit Plans or
with respect to any fiduciary, administrator, sponsor (in their capacities as
such), or any party-in-interest thereof.
8.18. BOOKS AND RECORDS. The books, records and accounts of Emageon (i)
have been maintained in accordance with good business practices on a consistent
basis, (ii) are stated in reasonable detail and accurately and fairly reflect
the transactions related to Emageon and (iii) accurately and fairly reflect the
basis for the Emageon Financial Statements. Emageon has devised and maintained
systems of internal accounting controls sufficient to provide reasonable
assurances that (y) transactions are executed in accordance with management's
general or specific authorization, and (z) transactions are recorded as
necessary (A) to permit preparation of financial statements in conformity with
GAAP and (B) to maintain accountability for assets.
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8.19. AGREEMENTS WITH TRANSACTIONS WITH RELATED PARTIES. Except as set
forth in Section 8.19 of the Emageon Disclosure Memorandum, Emageon is not,
directly or indirectly, a party to any contract, agreement, or lease with, or
any other arrangement with or commitment to, in each case whether oral or
written, any Related Party of Emageon.
8.20. NO AGREEMENT IN ANTICIPATION OF SALE. Emageon has not, directly or
indirectly, taken any action or actions or entered into any agreements in
anticipation of this Agreement. The consummation of the transactions
contemplated by this Agreement will not entitle any employee of Emageon to
severance pay nor will it accelerate the time of payment, vesting or increase
the amount of any compensation or benefits due to any employee of Emageon.
8.21. ENVIRONMENTAL MATTERS. Emageon holds all Environmental Permits
necessary for conducting its business and operations and has conducted, and is
presently conducting, its business and operations in full compliance with all
applicable Environmental Laws, and Environmental Permits including, without
limitation, all record keeping and filing requirements. There is no existing or
pending Environmental Law with a future compliance date that will require
operational changes, business practice modifications or capital expenditures at
any Emageon Leased Real Property (or any other property presently or formerly
owned, operated or controlled by Emageon or as to which Emageon may bear
responsibility or Liability), or any of the Improvements thereon. All Hazardous
Materials and Solid Waste, on, in, or under the Emageon Leased Real Property (or
such other property), wherever located, have been properly removed and disposed
of, and no past or present disposal, discharge, spill or other release of, or
treatment transportation or other handling of Hazardous Materials or Solid Waste
on, in, under or off-site from any Emageon Leased Real Property (or other
property), or adjacent property, will subject Emageon or any subsequent owner,
occupant or operator of such Emageon Leased Real Property (or other property) to
corrective or compliance action or any other Liability. There are no presently
pending or, to the Knowledge of Emageon, threatened Actions or Orders against or
involving Emageon (including any Person for whose acts or omissions Emageon is
responsible) relating to any alleged past or ongoing violation of Environmental
Law.
8.22. BANK ACCOUNTS AND SAFETY DEPOSIT BOXES. Section 8.22 of the Emageon
Disclosure Memorandum lists each bank in which Emageon maintains an account or
safety deposit box, the account numbers, and the names of all persons authorized
to draw thereon or have access thereto.
8.23. ABSENCE OF CHANGES. Except as expressly provided for in this
Agreement, since the Emageon Reference Date:
(a) there has been no change in the business, assets, properties,
debts, borrowings, Liabilities, affairs, results of operations condition
(financial or otherwise), or cash flows of Emageon or its relationships with
suppliers, customers, employees, lessors or others, other than changes in the
ordinary course of business, none of which have had or will have, individually
or in the aggregate, a material adverse effect;
(b) there has been no damage, destruction or loss to any of the
assets or properties of Emageon, whether or not covered by insurance;
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(c) Emageon has conducted its business in the ordinary course and
consistent with prior practices;
(d) no debt, borrowing or Liability of Emageon has been discharged
or satisfied, other than in the ordinary course of business and consistent with
prior practice;
(e) Emageon has not discontinued or determined to discontinue the
sale of any material products or services previously sold;
(f) there has been no sale, transfer, lease or other disposition
of any material asset or assets of Emageon, except in the ordinary course of
business, and no material debt to, or claim or right of, Emageon has been
canceled, compromised, waived or released;
(g) Emageon has not entered into any agreement, contract, lease or
license outside the ordinary course of business; and
(h) Emageon has not delayed or postponed the payment of any
accounts payable and other debts, borrowings or Liabilities outside the ordinary
course of business, and all notes and accounts receivable relating to Emageon
have been collected in the ordinary course of business.
8.24. CONTINUITY OF BUSINESS ENTERPRISE. Following the Merger, Emageon or
Ultravisual will continue at least one significant historic business line of
Ultravisual or use at least a significant portion of Ultravisual's historic
business assets in a business, in each case within the meaning of Reg. Sec
1.368-1(d) promulgated under the Code.
8.25. INFORMATION STATEMENT. Provided that Emageon shall have reviewed and
approved the Information Statement in its final form prior to mailing, the
Information Statement shall not, on the date the Information Statement is first
mailed to the Ultravisual Stockholders contain any statement which, at such
time, is false or misleading with respect to any material fact, or omits to
state any material fact necessary in order to make the statements made therein,
in light of the circumstances under which they are made, not false or
misleading; provided, however, that Emageon makes no representation or warranty
with respect to any information concerning Ultravisual or the Ultravisual
Stockholders which is contained in the Information Statement.
8.26. FULL DISCLOSURE. No representation or warranty of Emageon contained
in this Agreement, the Additional Agreements, the Emageon Disclosure Memorandum,
or any instrument, certificate, agreement or other writing delivered by or on
behalf of Emageon pursuant to this Agreement or any Additional Agreement or in
connection with the transactions contemplated herein or therein contains any
untrue or incomplete statement of a material fact or omits to state a material
fact necessary to make the statements contained herein and therein not
misleading.
SECTION 9. CONDUCT OF BUSINESS PENDING CLOSING
9.1. BUSINESS IN THE ORDINARY COURSE. Each of Emageon and Ultravisual, on
behalf of itself only, covenants and agrees that, except as may otherwise be
provided herein, without the
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prior written consent of Emageon (in the case of Ultravisual) or Ultravisual (in
the case of Emageon), between the date hereof and the Closing Date, the business
of Emageon or Ultravisual (as the case may be) (the "OBLIGATED COMPANY") shall
be conducted only in the ordinary and usual course and consistent with prior
practices. Without limiting the generality of the foregoing:
(a) the Obligated Company shall not enter into any Material
Contracts, agreements or other arrangements in connection with the business or
affecting the assets or properties of the Obligated Company, other than those
entered into in the ordinary course of the business of the Obligated Company at
prices and on terms consistent with the prior operating practices of the
Obligated Company;
(b) the Obligated Company shall not sell, assign, transfer,
convey, pledge, mortgage, encumber or otherwise dispose of, or cause the sale,
assignment, transfer, conveyance, pledge, mortgage, encumbrance or other
disposition of, any of the assets or properties of the Obligated Company other
than in the ordinary course of the Obligated Company's business, and in no event
shall any of the assets or properties of the Obligated Company be disposed of to
Related Parties of the Obligated Company without the other party's prior written
consent;
(c) all efforts to collect notes and accounts receivable shall be
undertaken in the ordinary course in accordance with past practices, and no
rebates, discounts or concessions shall be granted after the date of this
Agreement other than in the ordinary course in accordance with past practices;
(d) the Obligated Company shall maintain, preserve and protect all
of its assets and properties in good condition, except for ordinary wear and
tear;
(e) the books, records and accounts of the Obligated Company shall
be maintained in the ordinary course of business on a basis consistent with
prior practices and in accordance with GAAP;
(f) each Obligated Company shall use its best efforts to preserve
the Obligated Company's business, to preserve the goodwill of the Obligated
Company's suppliers, customers and others having business relations with the
Obligated Company that relate to its business, and Ultravisual will assist
Merger Sub and Emageon in retaining the services of key employees and agents of
the Ultravisual, to the extent desired by Merger Sub or Emageon;
(g) the Obligated Company shall not declare or pay any dividend or
make any distribution in respect of its capital stock whether now or hereafter
outstanding, or purchase, redeem or otherwise acquire or retire for value any
shares of its capital stock;
(h) the Obligated Company shall not issue any shares of its
capital stock (except upon the exercise of any option or warrant to acquire such
stock issued and outstanding on the date hereof) or any security convertible
into any such shares, nor grant or issue any warrant, option or other right to
subscribe for, purchase or otherwise acquire any shares of such capital stock or
any security convertible into such shares; and
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(i) between the date hereof and the Closing Date, without the
consent of Ultravisual, Merger Sub will not engage in any business activities
except as contemplated by this Agreement or as may be necessary or appropriate
in connection with the consummation of the transaction contemplated hereby.
9.2. INFORMATION STATEMENT. As promptly as practicable after the execution
of this Agreement, Ultravisual and Emageon shall jointly prepare a statement
pertaining to the Merger and this Agreement in compliance with the requirements
of the Laws of the State of Delaware and with Rule 506 under the Securities Act
(the "INFORMATION STATEMENT") to be used in connection with obtaining the
approval and adoption of this Agreement and approval of this Merger by the
Ultravisual Stockholders. The Information Statement shall be in a form and
content reasonably satisfactory to Emageon. Each of Emageon and Ultravisual
agrees to provide promptly to the other such information concerning its business
and financial statements and affairs as, in the reasonable judgment of the
providing party or its counsel, may be required or appropriate for inclusion in
the Information Statement, or in any amendments or supplements thereto, and to
cause its counsel and auditors to cooperate with the other's counsel and
auditors in the preparation of the Information Statement. Ultravisual will
promptly advise Emageon, and Emageon will promptly advise Ultravisual in writing
if at any time prior to the Effective Time either Ultravisual or Emageon, as
applicable, shall obtain knowledge of any facts that make it necessary or
appropriate to amend or supplement the Information Statement in order to make
the statements contained or incorporated by reference therein not misleading or
to comply with applicable law. The Information Statement shall contain the
recommendation of the Board of Directors of Ultravisual that Ultravisual
Stockholders approve the Merger and this Agreement and the conclusion of the
Board of Directors that the terms and conditions of the Merger are advisable and
fair and reasonable to and in the best interest of the Ultravisual Stockholders.
Anything to the contrary contained herein notwithstanding, Ultravisual shall not
include in the Information Statement any information with respect to Emageon,
the form and content of which information shall not have been approved by
Emageon prior to such inclusion.
9.3. STOCKHOLDER APPROVAL. As promptly as practicable following the
execution and delivery of this Agreement, Ultravisual shall take all other
action necessary in accordance with the DGCL and its Certificate of
Incorporation and By-Laws to secure the written consent of the Ultravisual
Stockholders approving and adopting this Agreement and approving the Merger and
the transactions contemplated by this Agreement. Such written consent shall be
solicited by delivering to each Ultravisual Stockholder by mail such materials
Ultravisual determines is necessary in order to secure such written consent. The
materials submitted to the Ultravisual Stockholders in respect of the Merger
shall have been subject to prior review and comment by Emageon and shall include
(a) the Information Statement, (b) the unanimous recommendation of the Board of
Directors of Ultravisual that the Ultravisual Stockholders approve the Merger
and this Agreement and the transactions contemplated hereby and approve and
execute such other documents as may be required to satisfy the applicable
requirements of the Securities Act in connection with the issuance and sale of
the Share Consideration in the Merger, (c) the Investor Certification and (d)
the conclusion of the Board of Directors of Ultravisual that the terms and
conditions of the Merger are advisable, fair and reasonable to, and in the best
interests of, Ultravisual's Stockholders.
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9.4. BOARD RECOMMENDATIONS.
(a) In connection with the Merger, the Board of Directors of
Ultravisual shall recommend to the Ultravisual Stockholders that they approve
and adopt the Merger and shall use all commercially reasonable efforts to obtain
the necessary approvals by the Ultravisual Stockholders of this Agreement.
(b) The Board of Directors of Ultravisual shall not, except as
expressly permitted by this SECTION 9.4(b) (i) withdraw, qualify or modify in a
manner adverse to Emageon, the approval or recommendation of the Board of
Directors of the Merger or this Agreement, (ii) approve or recommend any
transaction involving an Acquisition Proposal (as hereinafter defined) from a
third party (an "ALTERNATIVE TRANSACTION"), or (iii) cause Ultravisual to enter
into any letter of intent, agreement in principle, acquisition agreement or
other similar agreement (each, an "ACQUISITION AGREEMENT") related to any
Alternative Transaction. Notwithstanding the foregoing, if the Board of
Directors of Ultravisual determines in good faith, after it has received a
Superior Proposal (as hereinafter defined) in compliance with SECTION 9.5 and
after taking into consideration advice from outside counsel with respect to its
fiduciary duties to Ultravisual Stockholders under applicable Delaware law, that
such action is required for the Board of Directors of Ultravisual to comply with
its fiduciary obligations to Ultravisual Stockholders under applicable law, the
Board of Directors of Ultravisual may (subject to this and the following
sentences) inform the Ultravisual Stockholders and publicly announce that it no
longer believes that the Merger is advisable and no longer recommends approval
(a "SUBSEQUENT DETERMINATION") and enter into an Acquisition Agreement with
respect to a Superior Proposal and approve or recommend such Superior Proposal,
but only at a time that is after the second business day (or the first business
day in the case of a material amendment to a Superior Proposal) following
Emageon's receipt of written notice advising Emageon that the Board of Directors
of Ultravisual is prepared to accept a Superior Proposal. Such written notice
shall specify the material terms and conditions of such Superior Proposal (and
include a copy thereof with all accompanying documentation, if in writing),
identify the person making such Superior Proposal and state that the Board of
Directors of Ultravisual intends to make a Subsequent Determination. During such
two (2) business day period, Ultravisual shall provide an opportunity for
Emageon to propose such adjustments to the terms and conditions of this
Agreement as would enable the Board of Directors to proceed with its
recommendation to its stockholders without a Subsequent Determination. For
purposes of this Agreement, a "SUPERIOR PROPOSAL" means any proposal (or its
most recently amended or modified terms, if amended or modified) made by a third
party to enter into an Alternative Transaction which the Board of Directors of
Ultravisual determines in its good faith judgment to be more favorable to
Ultravisual Stockholders than the Merger from a financial point of view taking
into account all relevant factors (including whether, in the good faith judgment
of the Board of Directors of Ultravisual, the third party is reasonably able to
finance the transaction, and any proposed changes to this Agreement that may be
proposed by Emageon in response to such Alternative Transaction prior to the
date of such determination).
9.5. ACQUISITION PROPOSALS. Neither Ultravisual, nor any of its officers
or directors, shall directly or indirectly, (a) solicit, initiate or encourage
the submission of any Acquisition Proposal or (b) participate in or encourage
any discussion or negotiations regarding, or furnish to any Person any
non-public information with respect to, or take any other action to knowingly
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facilitate any inquiries with respect to, or the making of, any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition Proposal;
provided, however, that the foregoing shall not prohibit the Board of Directors
of Ultravisual from furnishing information to, or entering into discussions or
negotiations with, any Person that makes an unsolicited Acquisition Proposal
prior to Closing if, and to the extent that, (A) the Board of Directors of
Ultravisual, after taking into consideration advice of independent outside legal
counsel, determines in good faith that such action is required for the Board of
Directors of Ultravisual to comply with its fiduciary obligations to Ultravisual
Stockholders under applicable Delaware law, (B) prior to furnishing such
information, Ultravisual receives from such Person an executed agreement in
reasonably customary form relating to the confidentiality of information to be
provided to such Person and (C) the Board of Directors of Ultravisual concludes
in good faith that the Acquisition Proposal is a Superior Proposal. Ultravisual
shall provide immediate oral and written notice to Emageon of (a) the receipt of
any such Acquisition Proposal or any inquiry which could reasonably be expected
to lead to any Acquisition Proposal, (b) the material terms and conditions of
such Acquisition Proposal or inquiry, (c) the identity of such person or entity
making any such Acquisition Proposal or inquiry and (d) Ultravisual's intention
to furnish information to, or enter into discussions or negotiations with, such
person or entity. Ultravisual shall continue to keep Emageon informed of the
status and details of any such Acquisition Proposal or inquiry. For purposes of
this Agreement, "ACQUISITION PROPOSAL" means any bona fide proposal with respect
to a merger, consolidation, share exchange, tender offer or similar transaction
involving Ultravisual, or any purchase or other acquisition of all or any
portion of the assets of Ultravisual or any equity interest in Ultravisual
(other than in the ordinary course of business consistent with past practice).
SECTION 10. INDEMNIFICATION.
10.1. INDEMNIFICATION FROM ULTRAVISUAL ESCROW ASSETS. If the Closing
occurs, each of the Ultravisual Stockholders, jointly and severally, shall
indemnify and hold harmless Emageon, the Surviving Corporation and their
respective stockholders, directors, officers, agents, affiliates and employees
(each an "EMAGEON INDEMNITEE") from and against any and all claims, actions,
suits, liabilities, losses (including a decline in value of Emageon or the
Surviving Corporation), damages, demands, costs and expenses of every nature and
character whether accrued, absolute, contingent or otherwise (including all
reasonable attorneys' fees incurred by the Emageon Indemnitees and all amounts
paid by it in settlement of any claim, action, suit or liability, but net of any
insurance proceeds received and Tax benefits realized) (collectively, a "LOSS"),
that arise or result directly or indirectly by reason of:
(i) Any error, misstatement or omission in any representation or
warranty made by Ultravisual in this Agreement, any Additional Agreement,
any Exhibit hereto or thereto or the Ultravisual Disclosure Memorandum, or
in any certificate furnished in connection herewith; and
(ii) Any breach of or default in performance of any of the
covenants, agreements or other undertakings of Ultravisual contained in
this Agreement or any Additional Agreement.
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The maximum and sole indemnification obligation of the Ultravisual Stockholders
to the Emageon Indemnitees shall be limited to, and paid, settled, satisfied and
discharged solely from the Ultravisual Escrow Assets, and the Emageon
Indemnitees shall have no other rights to indemnification from any Ultravisual
Stockholder; provided, however, that the limitation set forth in the previous
sentence shall not apply with respect to claims based on fraud, intentional
misrepresentation or willful breach; provided, further, that to the extent such
claims based on fraud, intentional misrepresentation or willful breach exceeds
the Ultravisual Escrow Assets, the Emageon Indemnitee shall only be entitled to
seek additional indemnification or assert claims from and against the
Ultravisual Stockholder or Ultravisual Stockholders who committed the fraud,
intentional misrepresentation or willful breach, and the Ultravisual
Stockholders shall not be jointly and severally liable for such a claim. Solely
for purposes of determining the number of Emageon Shares that must be tendered
in satisfaction of any indemnification obligation hereunder, from and after the
date of this Agreement, the shares of Emageon Series D Preferred Stock delivered
to Emageon pursuant to this SECTION 10.1 shall be deemed to have a value equal
to the Emageon Series D Preferred Stock Value, and the shares of Emageon Common
Stock delivered to Emageon pursuant to this SECTION 10.1 shall be deemed to have
a value equal to the Emageon Common Stock Value. Such ascribed values shall
serve no other purpose under this Agreement.
10.2. INDEMNIFICATION FROM EMAGEON RESERVED ASSETS. If the Closing occurs,
Emageon shall indemnify and hold harmless the Ultravisual Stockholders (each an
"ULTRAVISUAL INDEMNITEE") from and against any and all Losses that arise or
result directly or indirectly by reason of:
(i) Any error, misstatement or omission in any representation or
warranty made by Emageon or Merger Sub in this Agreement, any Additional
Agreement, any Exhibit hereto or thereto or the Emageon Disclosure
Memorandum, or in any certificate furnished in connection herewith; and
(ii) Any breach of or default in performance of any of the
covenants, agreements or other undertakings of Emageon or Merger Sub
contained in this Agreement or any Additional Agreement.
The maximum and sole indemnification obligation of Emageon to the Ultravisual
Indemnitees shall be limited to, and paid, settled, satisfied and discharged
solely from the Emageon Reserved Assets, and Ultravisual Indemnitees shall have
no other rights to indemnification from Emageon or Merger Sub; provided,
however, that the limitation set forth in the previous sentence shall not apply
with respect to claims based on fraud, intentional misrepresentation or willful
breach; provided, further, that to the extent such claims based on fraud,
intentional misrepresentation or willful breach exceeds the Emageon Reserved
Assets, the Ultravisual Indemnitee shall only be entitled to seek additional
indemnification or assert claims from and against the individual person who
committed the fraud, intentional misrepresentation or willful breach, and
Emageon shall not be liable for such a claim. For purposes of determining the
value of any shares of the shares of Emageon Series D Preferred Stock pursuant
to this SECTION 10.2 shall be deemed to have a value equal to the Emageon Series
D Preferred Stock Value, and the shares of Emageon Common Stock deliverable
pursuant to this SECTION 10.2 shall be deemed to be the Emageon
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Common Stock Value. Such ascribed values shall serve no other purposes under
this Agreement.
10.3. INJUNCTIVE OR OTHER EQUITABLE RELIEF. Nothing set forth in this
SECTION 10 shall be deemed to prohibit or limit a party's right to seek
injunctive or other equitable relief for the failure of another party to perform
any covenant or agreement contained in this Agreement.
10.4. INDEMNIFICATION PROCEDURES. As used in this SECTION 10.4, the term
"INDEMNITOR" means the party from whom indemnity is sought, and the term
"INDEMNITEE" means the party seeking indemnification hereunder. Promptly after
receipt by an Indemnitee of notice of any claim, liability or expense to which
the indemnification obligations hereunder would apply, the Indemnitee shall give
notice thereof in writing, to the Indemnitor, but the omission to so notify the
Indemnitor promptly will not relieve the Indemnitor from any liability except to
the extent that the Indemnitor shall have been prejudiced as a result of the
failure or delay in giving such notice. Such notice shall state the information
then available regarding the amount and nature of such claim, liability or
expense and shall specify the provision or provisions of this Agreement under
which the liability or obligation is asserted. If within twenty days after
receiving such notice, the Indemnitor gives written notice to the Indemnitee
stating that (i) it would be liable under the provisions hereof for indemnity in
the amount of such claim, liability or expense if such claim were successful and
(ii) that it intends to defend against such claim, liability or expense at its
own cost and expense, then counsel for the defense shall be selected by the
Indemnitor (subject to the consent of the Indemnitee which consent shall not be
unreasonably withheld) and the Indemnitee shall not be required to make any
payment with respect to such claim, liability or expense as long as the
Indemnitor is conducting a good faith and diligent defense; provided, however,
that the assumption of defense of any such matters by the Indemnitor shall
relate solely to the claim, liability or expense that is subject or potentially
subject to indemnification. The Indemnitor shall have the right, with the
consent of the Indemnitee, which consent shall not be unreasonably withheld, to
settle all indemnifiable matters related to claims by third parties which are
susceptible to being settled provided its obligation to indemnify the Indemnitee
therefor will be fully satisfied. The Indemnitor shall keep the Indemnitee
apprised of the status of the claim (including any related expenses) and any
resulting suit, proceeding or enforcement action, shall furnish the Indemnitee
with all documents and information that the Indemnitee shall reasonably request
and shall consult with the Indemnitee prior to acting on material matters,
including settlement discussions. The Indemnitee shall furnish the Indemnitor
with all documents and information that the Indemnitor shall reasonably request.
Notwithstanding anything herein stated to the contrary, the Indemnitee shall at
all times have the right to fully participate in such defense at its own expense
directly or through counsel; provided, however, if the named parties to the
action or proceeding include both the Indemnitor and the Indemnitee and
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct, the expense of separate counsel
for the Indemnitee shall be paid by the Indemnitor provided that such counsel is
selected by the Indemnitor and such counsel is reasonably acceptable to the
Indemnitee. If no such notice of intent to defend is given by the Indemnitor, or
if such defense is not being or ceases to be conducted, the Indemnitee shall, at
the reasonable expense of the Indemnitor, undertake the defense of (with counsel
selected by the Indemnitee), and shall have the right to compromise or settle
(exercising reasonable business judgment), such claim, liability or expense in
addition to the remedies set forth in this SECTION 10. The Indemnitee shall at
all times make available all
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information and assistance that the Indemnitor may reasonably request and shall
at all times cooperate with the Indemnitor in such defense. If the Indemnitor
does not assume the defense of a proceeding to which this SECTION 10 applies
(or, if after electing to do so, fails to defend such proceeding), such election
shall not relieve the Indemnitor of its obligations hereunder.
10.5. OTHER LIMITATIONS
(a) Notwithstanding anything to the contrary contained in this
SECTION 10, the parties shall cooperate with each other to obtain the benefits
of any insurance coverage for third party claims that may be in effect at the
time a third party claim is asserted, and, if any insurance carrier for the
Surviving Corporation or Emageon is obligated or agrees to defend any third
party claim, such defense shall be tendered to such insurance carrier and the
rights of the parties among themselves regarding the assumption and control of
such defense shall be subject to the reasonable requirements of such insurance
carrier.
(b) The amount of any losses of any Person subject to
indemnification under this SECTION 10 shall be reduced by the net amount, if any
received by the Indemnitee from any third person (including, without limitation,
any insurance company or other insurance provider (such amount being referred to
herein as a "THIRD PARTY REIMBURSEMENT")), in respect of the losses suffered
thereby. If, after receipt by an Indemnitee of any indemnification payment
hereunder, such Person receives or becomes entitled to receive a Third Party
Reimbursement in respect of the same losses for which indemnification was made
and such Third Party Reimbursement was not taken into account in assessing the
amount of indemnification, then the Indemnitee shall turn over all of such Third
Party Reimbursement to the Indemnitor up to the amount of the indemnification
paid pursuant hereto, provided, however, that nothing in this SECTION 10.5 shall
obligate a party to seek Third Party Reimbursement.
10.6. EXCLUSIVE REMEDY. If the Closing occurs, the right to
indemnification, if any, with respect to breaches of representations, warranties
and agreements pursuant to this SECTION 10 shall constitute the sole and
exclusive remedy of any party hereto and any Ultravisual Stockholder with
respect thereto, shall preclude any other monetary award (whether at Law or in
equity), and shall preclude assertion by any party hereto or any Ultravisual
Stockholder of any right to any such monetary award from the Indemnitor, other
than in the case of fraud or intentional misconduct, in which case each Person
shall have all such remedies as may be available at Law, in equity or otherwise.
Nothing in this SECTION 10 shall limit the remedies available to an Indemnitee
to enforce its right to indemnification or to injunctive relief or specific
performance.
10.7. SURVIVAL
(a) The representations and warranties contained in this Agreement
and in any writing delivered pursuant to this Agreement shall survive any
investigation heretofore or hereafter made by the parties entitled to the
benefit thereof and the Closing, and shall continue in full force and effect for
the periods specified below (each, a "SURVIVAL PERIOD"):
(i) the representations and warranties relating to the
reporting, payment or liability for Taxes and environmental matters shall
survive until the
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expiration of the applicable statute or period of limitations, and any
extensions thereof; and
(ii) all other representations and warranties shall survive
until the second anniversary of the Closing.
(b) Anything herein to the contrary notwithstanding, the Survival
Period shall be extended automatically to include any time period necessary to
resolve a claim for indemnification which was made prior to the expiration of
the applicable Survival Period but not resolved prior to its expiration, but any
such extension shall apply only as to the claims so asserted and not resolved
within the Survival Period. Liability for any such item shall continue until
such claim shall have been finally settled, decided or adjudicated.
10.8. ULTRAVISUAL STOCKHOLDERS' REPRESENTATIVE.
(a) At the Effective Time, the Ultravisual Stockholders'
representative (the "STOCKHOLDERS' REPRESENTATIVE") is and shall be Xxxx Xxxxxxx
who shall have been appointed as Stockholders' Representative by the Ultravisual
Stockholders by their approval and adoption of this Agreement, and is and shall
be authorized and empowered to fulfill the role of "Stockholders'
Representative" for and on behalf of the Ultravisual Stockholders, to give and
receive notices and communications, to authorize payment to Emageon Indemnitees
from the Ultravisual Escrow Assets in satisfaction of claims by Emageon
Indemnitees and to demand payment from Emageon from the Emageon Reserved Assets
in satisfaction of claims by the Ultravisual Indemnitees, to object to such
payments, to agree to, negotiate, enter into settlements and compromises of, and
demand arbitration and comply with orders of courts and awards or arbitrators
with respect to such claims, and to take all actions necessary or appropriate in
the sole and exclusive judgment of the Stockholders' Representative for the
accomplishment of the foregoing. Such agency may be changed by the Ultravisual
Stockholders from time to time upon not less than thirty (30) days prior written
notice to Emageon; provided, however, that the Stockholders' Representative may
not be removed unless holders of at least 66.66% of the Ultravisual Escrow
Assets agree to such removal and to the identity of the substituted agent. The
Stockholders' Representative may resign his position as such immediately upon
written notice to Emageon. Any vacancy in the position of Stockholders'
Representative may be filled by the holders of a majority in interest of the
Ultravisual Escrow Assets. No bond shall be required of the Stockholders'
Representative, and the Stockholders' Representative shall not receive
compensation for his or her services. Notices or communications to or from the
Stockholders' Representative shall constitute notice to or from the Ultravisual
Stockholders.
(b) The Stockholders' Representative shall not be liable for any
act done or omitted hereunder as the Stockholders' Representative while acting
in good faith. The Ultravisual Stockholders on whose behalf the Ultravisual
Escrow Assets were deposited with the Escrow Agent shall indemnify the
Stockholders' Representative and hold the Stockholders' Representative harmless
against any loss, liability or expense incurred without bad faith on the part of
the Stockholders' Representative and arising out of or in connection with the
acceptance or administration of the Stockholders' Representative's duties
hereunder, including the reasonable fees and expenses of any legal counsel
retained by the Stockholders' Representative.
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(c) A decision, act, consent or instruction of the Stockholders'
Representative, including, but not limited to, an amendment, extension or waiver
of this Agreement, shall constitute a decision of the Ultravisual Stockholders
and shall be final, binding and conclusive upon the Ultravisual Stockholders;
and the Escrow Agent and Emageon may rely upon any such decision, act, consent
or instruction of the Stockholders' Representative as being the decision, act,
consent or instruction of the Ultravisual Stockholders.
10.9. EMAGEON RESERVED ASSETS.
(a) On the first anniversary of the Closing Date, 60% of the
Available Emageon Reserved Assets shall no longer be subject to the terms of
this Agreement, shall no longer be available to Ultravisual Indemnitees with
respect to indemnification claims, and Emageon shall be entitled proportionately
to reduce the authorized number of Emageon Series D Preferred Stock and Emageon
Common Stock to reflect that such shares are no longer authorized to be issued.
For purposes hereof, "AVAILABLE EMAGEON RESERVED ASSETS" shall mean the number
of shares of Emageon Common Stock and Emageon Series D Preferred Stock required
to be reserved pursuant to Section 4(b)(ii) hereof, less any Emageon Reserved
Shares and less any Emageon Claimed Shares.
(b) On the second anniversary of the Closing Date, all remaining
Available Emageon Reserved Assets on such date shall no longer be subject to the
terms of this Agreement, shall no longer be available to Ultravisual Indemnitees
with respect to indemnification claims, and Emageon shall be entitled to reduce
the authorized number of Emageon Series D Preferred Stock and Emageon Common
Stock to reflect that such shares are no longer authorized to be issued.
(c) Notwithstanding any provision to the contrary in this
Agreement, upon a Change of Control or a Qualifying IPO, all Available Emageon
Reserved Assets shall no longer be subject to the terms of this Agreement, and
shall no longer be available to Ultravisual Indemnitees with respect to
indemnification claims, and Emageon shall be entitled to reduce the authorized
number of Emageon Series D Preferred Stock and Emageon Common Stock to reflect
that such shares are no longer authorized to be issued.
(d) Emageon agrees to issue, out of the Available Emageon Reserved
Assets, such portion of the Available Emageon Reserved Assets in such amounts
and in such proportion as is specified by this SECTION 10.9 only (i) upon the
mutual written agreement of Emageon and Stockholders' Representative, which
written agreement shall specify the number of Emageon Reserved Assets to be
issued and to whom such shares should be issued, or (ii) upon the final judgment
or order of a court of competent jurisdiction or binding and unappealable award
of arbitration (a judgment or order of a court shall not be deemed to be final
until the time within which an appeal may be taken therefrom has expired and no
appeal has been taken, or until the entry of a judgment or order from which no
appeal may be taken). Any unissued Emageon shares required to be released
pursuant to this SECTION 10.9(d) are referred to herein as the "CLAIMED SHARES".
(e) In the case of a good faith claim in dispute between Emageon
and Ultravisual Indemnitees, Emageon agrees that it will keep on reserve
Available Emageon
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Reserved Assets equal to the amount of Emageon Reserved Assets that Emageon
determines, in its good faith judgment, would be required to be issued to
Ultravisual Indemnitees if the Ultravisual Indemnitees' claims were successful.
(f) For purposes of determining the number of shares of Emageon
Common Stock and Emageon Series D Preferred Stock that may be released from the
Emageon Reserved Assets (by, among other things, reducing the proportionate
number of authorized shares) or issued hereunder, such stock shall (i) be made
unauthorized or issued in the same ratio of Emageon Common Stock to Emageon
Series D Preferred Stock as the ratio as such shares are reserved hereunder (as
set forth in SECTION 4.2(b)(ii)) and (ii) be rounded up to the nearest whole
share.
SECTION 11. TERMINATION.
11.1. GROUNDS FOR TERMINATION. This Agreement may be terminated as
follows:
(a) by Emageon, on behalf of Merger Sub and Emageon, if any
Material Adverse Change shall have occurred with respect to Ultravisual since
the Ultravisual Reference Date;
(b) by Ultravisual, if any Material Adverse Change shall have
occurred with respect to Emageon since the Emageon Reference Date;
(c) by either Emageon, on behalf of Merger Sub and Emageon, or
Ultravisual, if the conditions to Closing contained in SECTION 6.1 OR 6.2, as
the case may be, shall not have been satisfied or waived in writing on or before
June 15, 2003; provided, however, that the terminating party or parties shall
have complied with or performed or tendered performance of all covenants and
agreements, and satisfied all conditions contained herein which are to be
complied with, performed or satisfied by such party or parties prior to or at
the Closing; provided, further, that a party shall promptly notify the other
parties hereto in writing if it becomes aware of circumstances which would cause
such party to breach any of its covenants and agreements or be unable to comply
with or perform the conditions to Closing contained in SECTION 6.1 OR 6.2, as
applicable;
(d) by Emageon or Merger Sub, if the Board of Directors of
Ultravisual (i) shall have withdrawn or shall have modified in a manner adverse
to Emageon or Merger Sub its approval or recommendation of the Merger or this
Agreement, (ii) causes Ultravisual to enter into an agreement with respect to an
Alternative Transaction, (iii) shall have endorsed, approved or recommended any
Alternative Transaction or (iv) shall have resolved to do any of the foregoing;
or
(e) by Ultravisual if, in compliance with its obligations under
SECTION 9.4 AND 9.5, (i) the Board of Directors of Ultravisual shall have
withdrawn or shall have modified in a manner adverse to Emageon or Merger Sub
its approval or recommendation of the Merger or this Agreement and (ii)
Ultravisual shall have entered into an agreement with respect to a Superior
Proposal.
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11.2. EFFECT OF TERMINATION. Upon any such termination, no party shall
have any further rights, Liabilities or obligations hereunder; provided,
however, that if any of the terms and conditions contained herein have been
breached by any party, the non-breaching parties may pursue any rights and
remedies they may have at Law, in equity or otherwise, by reason of such breach
regardless of such termination, and such termination shall not constitute an
election of remedies. Notwithstanding the foregoing, if Emageon or Merger Sub
exercises its right to terminate this Agreement under SECTION 11.1(d) or
Ultravisual exercises its right to terminate this Agreement under SECTION
11.1(e), Ultravisual shall pay to Emageon upon demand Five Hundred Thousand
Dollars ($500,000), payable in same-day funds.
SECTION 12. MISCELLANEOUS.
12.1. FEES AND EXPENSES. The parties hereto shall be responsible for any
and all expenses that they incur in connection with the performance of this
Agreement and the transactions contemplated hereby.
12.2. REASONABLE EFFORTS. To the extent not already completed on or before
the Closing Date, upon the terms and subject to the conditions set forth in this
Agreement, each of the parties will use reasonable efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, the Merger and the other
transactions contemplated by this Agreement, including (i) obtaining of all
necessary actions or nonactions, waivers, consents and approvals from
Governmental entities and the making of all necessary registrations and filings
(including filings with Governmental entities) and taking of such reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
Action or proceeding by, any Governmental entity, (ii) obtaining of all
necessary consents, approvals or waivers from third parties, (iii) defending of
any lawsuits or other legal proceedings by any third party, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any adverse Order or
judgment entered by any court or other Governmental entity vacated or reversed,
and (iv) execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, this Agreement.
12.3. GOVERNING LAW. This Agreement shall be construed under and governed
by the internal laws of the State of Delaware without regard to its conflict of
laws provisions.
12.4. NOTICES. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered or sent by facsimile transmission, upon receipt if the
transmitting party has received confirmation (electronic or otherwise) that the
transmission was received, or if sent by registered or certified mail, upon the
sooner of the date on which receipt is acknowledged or the expiration of three
days after deposit in United States post office facilities properly addressed
with postage prepaid. All notices to a party will be sent to the addresses set
forth below or to such other address or Person as such party may designate by
notice to each other party hereunder:
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TO EMAGEON OR TO Emageon, Inc.
ULTRAVISUAL AFTER 0000 Xxxxxxxxx Xxxxx, Xxx. 000
THE CLOSING: Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Xx.
Fax: (000) 000-0000
With a copy (that will not Xxxxxxxxxx Xxxxxxxx, LLP
constitute required notice) 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
to: Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
TO ULTRAVISUAL Ultravisual Medical Systems Corporation
PRIOR TO THE 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
CLOSING: Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
With a copy (that will not Xxxxxxx, Best & Friedrich, LLP
constitute required notice) Firstar Plaza
to: Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx , XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
TO MERGER SUB: Emageon-UV Development Corporation
0000 Xxxxxxxxx Xxxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Xx.
Fax: (000) 000-0000
With a copy (that will not Xxxxxxxxxx Xxxxxxxx, LLP
constitute required notice) 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
to: Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
TO STOCKHOLDERS' Xxxx Xxxxxxx
REPRESENTATIVE: 0000 X. Xxxxxxxx Xx.
Xxx Xxxxx, Xxxxxxxxx 00000
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With copies (that will not Xxxxxxx, Best & Friedrich, LLP
constitute required notice) U.S. Bank Plaza
to: Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
and
Xxxxx X. Xxxxxxxx, LLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Any notice given hereunder may be given on behalf of any party by his or
its counsel or other authorized representatives.
12.5. ENTIRE AGREEMENT. This Agreement, including Exhibits referred to
herein, the Emageon Disclosure Memorandum, the Ultravisual Disclosure Memorandum
and the other writings specifically identified herein or contemplated hereby
reflects the entire agreement of the parties with respect to its subject matter,
and supersedes all previous written or oral negotiations, commitments and
writings, including without limitation, the Letter of Intent among Ultravisual
and Emageon dated February 24, 2003. No promises, representations,
understandings, warranties and agreements have been made by any of the parties
hereto except as referred to herein or in such Exhibits and disclosure memoranda
or in such other writings; and all inducements to the making of this Agreement
relied upon by either party hereto have been expressed herein or in such
Exhibits or disclosure memoranda or in such other writings.
12.6. ASSIGNABILITY; BINDING EFFECT. This Agreement shall only be
assignable by Emageon or Merger Sub upon written notice to Ultravisual and such
assignment shall not relieve Emageon or Merger Sub of any liability hereunder.
This Agreement may not be assigned by Ultravisual without the prior written
consent of Emageon and Merger Sub. This Agreement shall be binding upon and
enforceable by, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
12.7. EXECUTION IN COUNTERPARTS. For the convenience of the parties and to
facilitate execution of this Agreement, this Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
12.8. AMENDMENTS. This Agreement may be amended by the parties hereto by
an instrument in writing signed on behalf of each of the parties hereto at any
time before or after any approval hereof by the stockholders of Ultravisual,
Merger Sub and Emageon, but in any event following authorization by the Boards
of Directors of Emageon, Merger Sub and Ultravisual; provided, however, that
after any such stockholder approval, no amendment shall be
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made which by law requires further approval by such stockholders without
obtaining such approval.
12.9. PUBLICITY AND DISCLOSURES. No press releases or public disclosure,
either written or oral, of the transactions contemplated by this Agreement shall
be made by a party to this Agreement without the prior knowledge and written
consent of Emageon and Ultravisual.
12.10. SPECIFIC PERFORMANCE. The parties agree that it would be difficult
to measure damages which might result from a breach of this Agreement by
Ultravisual, Merger Sub or Emageon and that money damages would be an inadequate
remedy for such a breach. Accordingly, if there is a breach or proposed breach
of any provision of this Agreement by Ultravisual, Merger Sub or Emageon, the
other parties shall be entitled, in addition to any other remedies which it may
have, to an injunction or other appropriate equitable relief to restrain such
breach without having to show or prove actual damage to Ultravisual, Emageon or
Merger Sub, as the case may be.
12.11. ACCESS AND INSPECTION
(a) Ultravisual shall provide Emageon, Merger Sub and their
respective authorized representatives reasonable access during normal business
hours after the date hereof until the Closing to the books and records of
Ultravisual for the purpose of making such investigation as they may reasonably
desire, and Ultravisual shall furnish such information concerning Ultravisual as
they may reasonably request. Ultravisual shall assist Emageon, Merger Sub and
their respective representatives in making such investigation and shall cause
their counsel, accountants, consultants and other non-employee representatives
to be reasonably available for such purposes. No investigation made heretofore
or hereafter by Emageon or Merger Sub shall limit or affect the representations,
warranties, covenants and agreements of Ultravisual hereunder.
(b) Emageon and Merger Sub shall provide Ultravisual, and its
respective authorized representatives reasonable access during normal business
hours after the date hereof until the Closing to the books and records of
Emageon and Merger Sub for the purpose of making such investigation as they may
reasonably desire, and Emageon and Merger Sub shall furnish such information
concerning Emageon and Merger Sub as Ultravisual, and its respective authorized
representatives may reasonably request. Emageon and Merger Sub shall assist
Ultravisual in making such investigation and shall cause its counsel,
accountants, consultants and other non-employee representatives to be reasonably
available for such purposes. No investigation made heretofore or hereafter by
Ultravisual shall limit or affect the representations, warranties, covenants and
agreements of Emageon or Merger Sub hereunder.
12.12. CONFIDENTIALITY. In connection with the negotiation of this
Agreement, a party (Ultravisual on the one hand, and Emageon and Merger Sub on
the other, each being one party for purposes of this SECTION 12.12) hereto (the
"DISCLOSING PARTY") may disclose Confidential Information to one of the other
parties hereto (the "DISCLOSEE"). Each party agrees that if the transactions
contemplated herein are not consummated, it will return to the Disclosing Party
all documents and other written information furnished to it. Each party further
agrees not to use, except for purposes of accomplishing the transactions
contemplated herein, and not to disclose or
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reveal to any other Person any of the Disclosing Party's Confidential
Information (other than to such party's Affiliates), employees, representatives,
and advisors who have a need to know such information in connection with the
transactions contemplated herein and who have been instructed to treat such as
confidential); provided, however, that the foregoing obligations shall not apply
to (i) any information that was known by the Disclosee prior to its disclosure
by or on behalf of the Disclosing Party; (ii) any information that was in the
public domain prior to the disclosure thereof; (iii) any information that comes
into the public domain through no fault of the Disclosee; (iv) any information
that is disclosed to the Disclosee by a third party who is not under a direct or
indirect obligation of confidentiality to the Disclosing Party; or (v) any
information which is required to be disclosed by Order or by any Law. The
Disclosee shall bear the burden of demonstrating the applicability of one or
more of the foregoing exceptions. For purposes of this Agreement, "CONFIDENTIAL
INFORMATION" shall mean, with respect to any Person, any and all technical,
business, and other information of such Person that derives value, actual or
potential, economic or otherwise, from not being generally known to the public
or to other Persons, whether or not constituting a trade secret, including,
without limitation, technical or nontechnical data, compositions, devices,
methods, techniques, drawings, inventions, processes, financial data, financial
plans, product plans, lists of actual or potential customers or suppliers,
information regarding the acquisition and investment plans and strategies,
business plans or operations of the Person or its Affiliates. Confidential
Information of a Person includes information of third parties that such Person
is obligated to keep or treats as confidential. The provisions of this SECTION
12.12 shall survive any termination of this Agreement for any reason and shall
continue indefinitely; provided, however, that the restrictions contained in
this SECTION 12.12 shall terminate with respect to any Confidential Information
that does not constitute a trade secret under applicable Law after the second
anniversary of the date hereof and the obligations of Emageon and Merger Sub
hereunder with respect to Confidential Information of Ultravisual shall cease
and terminate upon the occurrence of the Closing.
[Signature Page Follows]
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[MERGER AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives. By their signatures below, each Person signing this Agreement
affirms or acknowledges, under penalty of perjury, that this Agreement is such
Person's act and deed and that the facts stated herein are true.
EMAGEON, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: President & CEO
EMAGEON-UV DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: President & CEO
ULTRAVISUAL MEDICAL SYSTEMS CORPORATION
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President & CEO
STOCKHOLDERS' REPRESENTATIVE
/s/ Xxxx Xxxxxxx
----------------------------------------
Xxxx Xxxxxxx
