Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT") is entered
into as of this 28th day of March 2000, by and between The TriZetto Group, Inc.,
a Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS").
RECITALS
WHEREAS, the Boards of Directors of TriZetto and IMS deem it advisable
and in the best interests of each corporation and its respective stockholders
that TriZetto and IMS engage in a business combination in order to advance the
long-term strategic business interests of TriZetto and IMS;
WHEREAS, upon the terms and subject to the conditions of this
Agreement, IMS will merge with and into TriZetto (the "MERGER"), with TriZetto
as the surviving corporation in the Merger, all pursuant to the terms and
conditions of this Agreement and the applicable provisions of the Delaware
General Corporation Law, as amended (the "DGCL");
WHEREAS, in furtherance thereof, the Board of Directors of each of
TriZetto and IMS have approved the Merger, upon the terms and subject to the
conditions set forth in this Agreement, pursuant to which each share of common
stock of IMS issued and outstanding immediately prior to the Effective Time will
be converted into the right to receive shares of common stock of TriZetto as set
forth herein;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, and as a condition and inducement to IMS's willingness to enter into
this Agreement, IMS and certain stockholders of TriZetto (the "TRIZETTO
DESIGNATED STOCKHOLDERS") are entering into agreements dated as of the date
hereof in the form of EXHIBITS A, B and C hereto (the "TRIZETTO VOTING
AGREEMENTS") pursuant to which the TriZetto Designated Stockholders have agreed,
among other things, to vote their shares of TriZetto Common Stock in favor of
the adoption of this Agreement, and (ii) as a condition and inducement to
TriZetto's willingness to enter into this Agreement, TriZetto and certain
stockholders of IMS (the "IMS DESIGNATED STOCKHOLDERS") are entering into an
agreement dated as of the date hereof in the form of EXHIBIT D (the "IMS VOTING
AGREEMENT" and, together with the TriZetto Voting Agreements, the "VOTING
AGREEMENTS") pursuant to which the IMS Designated Stockholders have agreed,
among other things, to vote their shares of IMS Common Stock in favor of the
adoption of this Agreement;
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a "tax-free" reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "CODE"),
and the regulations promulgated thereunder; and
WHEREAS, IMS and TriZetto desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby and thereby, the parties
hereto agree as follows:
1. PLAN OF REORGANIZATION.
1.1 THE MERGER. Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time (as defined in Section 1.2),
IMS shall be merged with and into TriZetto and the corporate existence of IMS
shall thereupon cease. TriZetto shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the "SURVIVING CORPORATION"), and the
separate corporate existence of TriZetto with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger. The
Merger shall have the effects specified in the DGCL.
1.2 THE CLOSING. Subject to the termination of this Agreement
as provided in Section 9 below, the closing of the transactions contemplated by
this Agreement (the "CLOSING") shall take place at the offices of Xxxxxxxxx
Xxxxx Xxxxxxx & Xxxxx, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 on a date (the "CLOSING DATE") and at a time to be mutually
agreed upon by the parties, which date shall be no later than the third business
day after all conditions to Closing set forth herein (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the fulfillment or waiver of those conditions) shall have been satisfied or
waived in accordance with this Agreement, unless another place, time and date is
mutually agreed upon in writing by IMS and TriZetto. As soon as practicable
following the Closing, TriZetto and IMS will cause a Certificate of Merger (the
"DELAWARE CERTIFICATE OF MERGER") to be executed, acknowledged and filed in the
office of the Secretary of State of the State of Delaware as provided in Section
251 of the DGCL. The Merger shall become effective at the time when the Delaware
Certificate of Merger has been duly filed with the Secretary of State of
Delaware (the "EFFECTIVE TIME"). 1.3 EFFECT ON CAPITAL STOCK. At the Effective
Time, as a result of the Merger and without any action on the part of the holder
of any capital stock of IMS:
(A) CONVERSION OF SHARES. Each share of Common Stock,
$.01 par value per share, of IMS ("IMS COMMON STOCK"), that is issued and
outstanding immediately prior to the Effective Time (other than shares of IMS
Common Stock held by IMS in its treasury and shares of IMS Common Stock owned by
TriZetto or any direct or indirect subsidiary of TriZetto (the "EXCLUDED
SHARES")) shall be converted into 0.4655 of a share (the "EXCHANGE RATIO") of
validly issued, fully paid and nonassessable Common Stock, $0.001 par value per
share, of TriZetto ("TRIZETTO COMMON STOCK"). At the Effective Time, all shares
of IMS Common Stock shall no longer be outstanding and shall be cancelled and
retired and shall cease to exist, and each certificate (a "CERTIFICATE")
formerly representing any such shares of IMS Common Stock (other than Excluded
Shares) shall thereafter represent only the right to receive the number of whole
shares of TriZetto Common Stock equal to the number of shares of IMS Common
Stock represented by such Certificate multiplied by the Exchange Ratio and the
right, if any, to receive pursuant to Section 1.4 cash in lieu of fractional
shares into which such shares of IMS Common Stock have been converted pursuant
to this Section 1.3(a) and any distribution of dividends pursuant to Section
1.5(c). All Excluded Shares shall, by virtue of the Merger and without any
action on the part of the holder thereof, cease to be outstanding, shall be
cancelled and retired without payment of any consideration therefor and shall
cease to exist.
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(B) TRIZETTO COMMON STOCK. Each share of TriZetto
Common Stock outstanding immediately prior to the Effective Time will continue
to be an identical outstanding share of TriZetto Common Stock.
(C) ADJUSTMENTS FOR CAPITAL CHANGES. If, prior to the
Effective Time, TriZetto or IMS recapitalizes through a subdivision of its
outstanding shares into a greater number of shares, or by a combination of its
outstanding shares into a lesser number of shares, or reorganizes, reclassifies
or otherwise changes its outstanding shares into the same or a different number
of shares of other classes, or declares a dividend on its outstanding shares
payable in shares of its capital stock or securities convertible into shares of
its capital stock, then the Exchange Ratio will be adjusted equitably so as to
maintain the relative proportionate interests of the holders of the shares of
IMS Common Stock and the holders of the shares of TriZetto Common Stock.
(D) DISSENTING SHARES. In accordance with Section 262
of the DGCL, no appraisal rights shall be available to holders of IMS Common
Stock in connection with the Merger.
1.4 FRACTIONAL SHARES. Notwithstanding any other provision of
this Agreement, no fractional shares of TriZetto Common Stock will be issued and
any holder of IMS Common Stock entitled to receive a fractional share of
TriZetto Common Stock but for this Section 1.4 shall be entitled to receive a
cash payment in lieu thereof, which payment shall represent such holder's
proportionate interest in the net proceeds from the sale by the Exchange Agent
(as defined in Section 1.5) on behalf of such holder of the aggregate fractional
shares of TriZetto Common Stock that such holder otherwise would be entitled to
receive. Any such sale shall be made by the Exchange Agent within five business
days after the date upon which the Certificate(s) (or affidavit(s) of loss in
lieu thereof) that would otherwise result in the issuance of such fractional
shares of TriZetto Common Stock have been received by the Exchange Agent.
1.5 EXCHANGE OF CERTIFICATES.
(A) EXCHANGE AGENT. Prior to the Closing Date,
TriZetto shall select a bank or trust company with IMS's prior approval, which
shall not be unreasonably withheld, to act as exchange agent (the "EXCHANGE
AGENT") in the Merger. As of the Effective Time, TriZetto shall deposit, or
shall cause to be deposited, with the Exchange Agent, for the benefit of the
holders of shares of IMS Common Stock, certificates representing the shares of
TriZetto Common Stock and, after the Effective Time, if applicable, any cash,
dividend, or other distributions with respect to the TriZetto Common Stock to be
paid or issued pursuant to the penultimate sentence of Section 1.3(a) in
exchange for shares of IMS Common Stock outstanding immediately prior to the
Effective Time upon due surrender of the Certificates (or affidavits of loss in
lieu thereof) pursuant to the provisions of this Article I (such certificates
for shares of TriZetto Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"EXCHANGE FUND") issuable pursuant to this Agreement.
(B) EXCHANGE PROCEDURES. Promptly after the Effective
Time, the Surviving Corporation shall cause the Exchange Agent to mail to each
holder of record of shares of IMS Common Stock (other than holders of Excluded
Shares), (i) a letter of transmittal which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
have such other provisions as TriZetto and IMS may reasonably specify and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing shares of TriZetto Common
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Stock and any unpaid dividends and other distributions and cash in lieu of
fractional shares. Upon surrender of a Certificate for cancellation to the
Exchange Agent, together with a duly executed letter of transmittal and such
other documents as may be reasonably required by the Exchange Agent, the holder
of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of TriZetto Common Stock
which such holder has the right to receive pursuant to the provisions of this
Agreement and a check in the amount (after giving effect to any tax
withholdings) of any cash in lieu of fractional shares plus any unpaid non-stock
dividends and any other dividends or other distributions that such holder has
the right to receive pursuant to this Article I, and the Certificate so
surrendered shall forthwith be canceled. No interest will be paid or accrued on
any amount payable upon due surrender of the Certificates. In the event of a
transfer of ownership of shares of IMS Common Stock which is not registered on
the transfer records of IMS, a certificate representing the proper number of
shares of TriZetto Common Stock together with a check for any cash to be paid
upon due surrender of the Certificate may be issued to a transferee if the
Certificate representing such IMS Common Stock is presented to the Exchange
Agent, accompanied by all documents required to evidence and effect such
transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrendered as contemplated by this Section 1.5 and this Agreement,
each Certificate shall be deemed, on and after the Effective Time, to represent
only the right to receive upon such surrender the certificate representing
shares of TriZetto Common Stock and cash in lieu of any fractional shares of
TriZetto Common Stock and other dividends or distributions payable as
contemplated by Section 1.3, this Agreement and the DGCL.
(C) DISTRIBUTIONS WITH RESPECT TO UNSURRENDERED
CERTIFICATES. No dividends or other distributions declared or made after the
Effective Time with respect to TriZetto Common Stock with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the shares of TriZetto Common Stock represented thereby and no
cash payment in lieu of fractional shares shall be paid to any such holder
pursuant to Section 1.4 until the holder of record of such Certificate shall
surrender such Certificate. Subject to the effect of applicable laws, following
surrender of any such Certificate, there shall be paid to the record holder of
the certificates representing whole shares of TriZetto Common Stock issued in
exchange therefor, without interest, (i) at the time of such surrender, the
amount of any cash payable in lieu of a fractional share of TriZetto Common
Stock to which such holder is entitled pursuant to Section 1.4 and the amount of
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of TriZetto Common Stock and
(ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but prior to surrender
and a payment date subsequent to surrender payable with respect to such whole
shares of TriZetto Common Stock.
(D) LOST, STOLEN OR DESTROYED CERTIFICATES. In the
event any Certificate shall have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the Person claiming such Certificate to be lost,
stolen or destroyed and, if required by TriZetto, the posting by such Person of
a bond in customary amount as indemnity against any claim that may be made
against it with respect to such Certificate, the Exchange Agent will issue in
exchange for such lost, stolen or destroyed Certificate the shares of TriZetto
Common Stock and any cash payable and any unpaid dividends or other
distributions in respect thereof pursuant to Section 1.3 upon due surrender of
and deliverable in respect of the shares of IMS Common Stock represented by such
Certificate pursuant to this Agreement.
For the purposes of this Agreement, the term "PERSON"
shall mean any individual, corporation (including not-for-profit), general or
limited partnership, limited liability
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company, joint venture, estate, trust, association, organization, Governmental
Entity (as defined herein) or other entity of any kind or nature.
(E) NO FURTHER OWNERSHIP RIGHTS IN IMS COMMON STOCK.
All shares of TriZetto Common Stock issued upon the surrender for exchange of
shares of IMS Common Stock in accordance with the terms of this Agreement
(including any cash paid pursuant to Section 1.4 and Section 1.5(c)) shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
shares of IMS Common Stock, and after the Effective Time there shall be no
further registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of IMS Common Stock which were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Certificates are
presented to the Surviving Corporation for any reason, they shall be canceled
and exchanged as provided in this Section 1.5.
(F) TERMINATION OF EXCHANGE FUND. Any portion of the
Exchange Fund which remains undistributed to the stockholders of IMS for six (6)
months after the Effective Time shall be paid to TriZetto, upon demand, and any
former stockholders of IMS who have not theretofore complied with this Section
1.5 shall thereafter look only to TriZetto for payment of their claim for
TriZetto Common Stock, any cash in lieu of fractional shares of TriZetto Common
Stock and any dividends or distributions with respect to TriZetto Common Stock,
in each case, without any interest thereon.
(G) NO LIABILITY. None of TriZetto, the Surviving
Corporation, the Exchange Agent or any other Person shall be liable to any
former holder of shares of IMS Common Stock for any portion of the Exchange Fund
properly delivered to a public official pursuant to any applicable abandoned
property, escheat or similar laws.
1.6 IMS OPTIONS.
(A) OPTIONS. At the Effective Time, each of the then
outstanding options to purchase IMS Common Stock (the "IMS OPTIONS"), without
any further action on the part of any holder thereof, shall be deemed to
constitute an option to purchase that number of shares of TriZetto Common Stock
determined by multiplying the number of shares of IMS Common Stock subject to
such IMS Option at the Effective Time by the Exchange Ratio, at an exercise
price per share of TriZetto Common Stock equal to the exercise price per share
of such IMS Option immediately prior to the Effective Time divided by the
Exchange Ratio and rounded up to the nearest whole cent. If the foregoing
calculation results in an assumed IMS Option being exercisable for a fraction of
a share of TriZetto Common Stock, then the number of shares of TriZetto Common
Stock subject to such option will be rounded up to the nearest whole number of
shares. The term, exercisability, vesting schedule, status as an "incentive
stock option" under Section 422 of the Code, if applicable, and all other terms
and conditions of the IMS Options shall be as set forth in the IMS Plans and in
the list previously provided by IMS to TriZetto and referred to in Section
2.2(a). Continuous employment with IMS or any of IMS's subsidiaries will be
credited to a holder of an IMS Option for purposes of determining the number of
shares of TriZetto Common Stock subject to exercise under a converted IMS Option
after the Effective Time. Promptly after the Effective Time, TriZetto will
notify in writing each holder of an IMS Option of the assumption of such IMS
Option by TriZetto, the number of shares of TriZetto Common Stock that are then
subject to such option, and the exercise price of such option, as determined
pursuant to this Agreement.
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(B) REGISTRATION. TriZetto shall cause the TriZetto
Common Stock issuable upon exercise of the assumed IMS Options to be registered
on Form S-8 promulgated by the Securities and Exchange Commission (the "SEC")
(or any successor or other appropriate form) as soon as practicable but not
later than ten (10) days after the Effective Time and TriZetto shall use its
reasonable best efforts to maintain the effectiveness of such registration
statement or registration statements for so long as such assumed IMS Options
shall remain outstanding. TriZetto will reserve a sufficient number of shares of
TriZetto Common Stock for issuance upon exercise of the IMS Options assumed by
TriZetto pursuant to this Section 1.6. In addition, the Board of Directors of
IMS and TriZetto shall, prior to the Effective Time, take all such actions as
may be necessary or appropriate pursuant to Rule 16b-3(e) to exempt (i) the
conversion of IMS Common Stock and IMS Options into TriZetto Common Stock or
options to purchase TriZetto Common Stock, as the case may be, and (ii) the
acquisition of TriZetto Common Stock or options to purchase TriZetto Common
Stock, as the case may be, pursuant to the terms of this Agreement by officers
and directors of IMS subject to the reporting requirements of Section 16(c) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). IMS and
TriZetto shall provide to counsel to the other party copies of the resolutions
to be adopted by the respective Boards of Directors to implement the foregoing.
1.7 CERTIFICATE OF INCORPORATION AND BY-LAWS.
(A) The Restated Certificate of Incorporation of
TriZetto, as in effect immediately prior to the Effective Time, shall be amended
as of the Effective Time (the "TRIZETTO CHARTER AMENDMENT") so as to read in its
entirety in the form set forth as EXHIBIT E and, as so amended, such Certificate
of Incorporation shall be the certificate of incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
(B) The By-laws of TriZetto, as in effect immediately
prior to the Effective Time, shall be amended as of the Effective Time so as to
read in their entirety in the form set forth as EXHIBIT F and, as so amended,
such By-laws shall be the by-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
1.8 BOARD OF DIRECTORS AND OFFICERS. The Board of Directors
and the officers of the Surviving Corporation shall be as set forth in Sections
5.11 and 5.12, respectively, until the earlier of the resignation or removal of
any individual set forth in or designated in accordance with such Sections, or
until their respective successors are duly elected and qualified, as the case
may be, it being agreed that if any director shall be unable or unwilling to
serve as a director at the Effective Time the party which designated such
individual as indicated in Section 5.11 shall designate another individual to
serve in such individual's place. If any officer set forth in or designated in
accordance with Section 5.12 ceases to be a full-time employee of either
TriZetto or IMS at or before the Effective Time or shall be unable or unwilling
to serve as an officer of the Surviving Corporation at the Effective Time, the
parties will agree upon another individual to serve in such individual's stead.
2. REPRESENTATIONS AND WARRANTIES OF IMS.
Except as set forth in a letter dated the date of this Agreement and
delivered by IMS to TriZetto concurrently herewith (the "IMS DISCLOSURE
LETTER"), IMS represents and warrants to TriZetto as set forth below. In this
Agreement, the term "MATERIAL ADVERSE EFFECT" used in connection with a party or
any of such party's subsidiaries means any event, change or effect that is
materially adverse to the financial condition, properties, assets, liabilities,
businesses or results of operations of such party and its subsidiaries, taken as
a whole, or to the ability of such party to
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consummate the Merger, other than, in each case, events, changes or effects that
result from general economic conditions or conditions generally affecting the
industry in which such party conducts operations.
2.1 ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER. IMS
and each of its "Significant Subsidiaries" (as defined in Rule 1-02(w) of
Regulation S-X promulgated under the Exchange Act) (the "IMS SUBSIDIARIES") is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary, other
than in such jurisdictions where the failure to so qualify is not reasonably
likely to have a Material Adverse Effect on IMS. The IMS Disclosure Letter sets
forth a correct and complete list of IMS's subsidiaries. IMS has made available
to TriZetto or its counsel complete and correct copies of the certificates or
articles of incorporation and bylaws of IMS and each of the IMS Subsidiaries
which is organized under the laws of any State in the United States, in each
case as amended to the date of this Agreement. IMS shall promptly after
execution of this Agreement deliver or make available to TriZetto a true and
correct copy of the certificates or articles of incorporation and bylaws or
similar governing instruments of each of its Significant Subsidiaries which is
not organized under the laws of any State in the United States.
2.2 CAPITAL STRUCTURE.
(A) STOCK AND OPTIONS. The authorized capital stock
of IMS consists of (i) 800,000,000 shares of IMS Common Stock, (ii) 10,000,000
shares of Series Common Stock, par value $0.01 per share (the "IMS SERIES COMMON
STOCK") and (iii) 10,000,000 shares of Preferred Stock, par value $0.01 per
share (the "IMS PREFERRED STOCK"). At the close of business on March 24, 2000,
297,239,518 shares of IMS Common Stock were issued and outstanding, no shares of
IMS Series Common Stock or IMS Preferred Stock were issued and outstanding,
37,805,872 shares of IMS Common Stock were held by IMS in its treasury,
42,809,241 shares of IMS Common Stock were reserved for issuance upon the
exercise of outstanding IMS Options, and IMS had 372,108 restricted stock units
and phantom units issued. All outstanding shares of IMS Common Stock are validly
issued, fully paid and nonassessable and not subject to preemptive rights. All
outstanding shares of the capital stock of each of the IMS Subsidiaries are
validly issued, fully paid and nonassessable and are owned by IMS or one of the
IMS Subsidiaries free and clear of any liens, security interests, pledges,
agreements, claims, charges or encumbrances. IMS has made available to TriZetto
true and correct copies of its 1998 Non-Employee Directors' Stock Incentive
Plan, 1998 Employees' Stock Incentive Plan, 1998 Replacement Plan for Certain
Employees Holding Cognizant Corporation Equity-Based Awards, 1998 Replacement
Plan for Certain Non-Employees Directors Holding Cognizant Corporation
Equity-Based Awards, 1998 Employees Stock Purchase Plan (the "ESPP"), 1998
Replacement Plan for Certain Individuals Holding Cognizant Corporation Stock
Options and 1998 Stock Option Plan for Former Employees of Pharmaceutical
Marketing Services Inc. (collectively, the "IMS PLANS") and a correct and
complete list of the following information with respect to IMS Options
outstanding as of February 29, 2000: (i) the aggregate number of shares of IMS
Common Stock subject to IMS Options under each IMS Plan other than the ESPP;
(ii) the exercise price of the IMS Options outstanding under each such IMS Plan;
(iii) the vesting schedule under each such IMS Plan; and (iv) with respect to
employees that have entered into change of control agreements with IMS, the name
of such officer, the number of shares of IMS Common Stock subject to IMS Options
held by such officer, the particular IMS Plan(s) pursuant
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to which such IMS Options were granted and the vesting schedule of the IMS
Options held by such officer.
(B) NO OTHER COMMITMENTS. Except for the IMS Options
disclosed in Section 2.2(a) above and except for rights to purchase Series A
Participating Preferred Stock (the "RIGHTS") issued pursuant to the Rights
Agreement, dated as of June 15, 1998, between IMS and First Chicago Trust
Company of New York, as Rights Agent (the "RIGHTS AGREEMENT"), there are no
options, warrants, calls, rights, commitments, conversion rights or agreements
of any character to which IMS or any of the IMS Subsidiaries is party or by
which IMS or any of the IMS Subsidiaries is bound obligating IMS or any of the
IMS Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, any shares of capital stock of IMS or any of the IMS Subsidiaries or
securities convertible into or exchangeable for shares of capital stock of IMS
or any of the IMS Subsidiaries, or obligating IMS or any of the IMS Subsidiaries
to grant, extend or enter into any such option, warrant, call, right,
commitment, conversion right or agreement. There are no voting trusts or other
agreements or understandings to which IMS is a party with respect to the voting
of the capital stock of IMS or any of the IMS Subsidiaries.
2.3 AUTHORITY.
(A) CORPORATE ACTION. IMS has all requisite corporate
power and authority to enter into this Agreement and the TriZetto Voting
Agreements and, subject to approval of this Agreement and the Merger by the
stockholders of IMS, to perform its obligations hereunder and to consummate the
Merger and the other transactions contemplated by this Agreement and the
TriZetto Voting Agreements. The execution and delivery of this Agreement and the
TriZetto Voting Agreements by IMS and, subject to adoption and approval of this
Agreement and the Merger by the stockholders of IMS, the consummation by IMS of
the Merger and the other transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of IMS. Each of this
Agreement and the TriZetto Voting Agreements has been duly executed and
delivered by IMS and is the valid and binding obligation of IMS, enforceable in
accordance with its terms, except that such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles (the "BANKRUPTCY AND EQUITY EXCEPTION").
(B) NO CONFLICT. Neither the execution, delivery and
performance of this Agreement or the TriZetto Voting Agreements, nor the
consummation of the transactions contemplated hereby or thereby nor compliance
with the provisions hereof or thereof will: (i) conflict with, or result in any
violations of, or cause a breach or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in, or the loss of any
material benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties or assets of
IMS or any of the IMS Subsidiaries under, any term, condition or provision of
(A) the certificate of incorporation or bylaws of IMS or any of the IMS
Subsidiaries or (B) any loan or credit agreement, note, bond, mortgage,
indenture, lease, license, agreement, contract, arrangement or other obligation
("Contract"), permit, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to IMS or any of the IMS Subsidiaries or their respective
properties or assets, other than any such conflicts, violations, defaults,
losses, liens, security interests, charges, or encumbrances which, individually
or in the aggregate, is not reasonably likely to have a Material Adverse Effect
on IMS; or (ii) require the affirmative vote of the holders of greater than a
majority of the issued and outstanding shares of IMS Common Stock.
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(C) GOVERNMENTAL CONSENTS. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (each a "GOVERNMENTAL ENTITY"), is required
to be obtained by IMS or any of the IMS Subsidiaries in connection with the
execution and delivery of this Agreement or the TriZetto Voting Agreements or
the consummation of the transactions contemplated hereby or thereby, except for:
(i) the filing with the SEC of (A) the Form S-4, (B) the Prospectus/Proxy
Statement, (C) the Tracking Stock Form 10 (as defined in Section 6.3), (D) the
STB Form 10 (as defined in Section 6.7(b)) and (E) such reports and information
under the Exchange Act and the rules and regulations promulgated by the SEC
thereunder as may be required in connection with this Agreement or the TriZetto
Voting Agreements and the transactions contemplated hereby or thereby; (ii) the
filing of the Delaware Certificate of Merger with the Secretary of State of the
State of Delaware and appropriate documents with the relevant authorities of
other states in which IMS is qualified to do business; (iii) the filing of the
Certificate of Designations (as defined in Section 6.3) with the Secretary of
State of the State of Delaware, (iv) such filings, authorizations, orders and
approvals as may be required under foreign securities laws, state securities
laws and the rules of the New York Stock Exchange, Inc. (the "NYSE") and the
Nasdaq National Market System (the "NASDAQ"); (v) such filings and notifications
as may be necessary under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended (the "HSR ACT") and applicable foreign antitrust laws and (vi)
where the failure to obtain such consents, approvals, etc., would not prevent or
delay the consummation of the Merger or otherwise prevent IMS from performing
its obligations under this Agreement or the TriZetto Voting Agreements and is
not reasonably likely to have a Material Adverse Effect on IMS.
2.4 SEC DOCUMENTS.
(A) SEC REPORTS. IMS has made available to TriZetto
or its counsel correct and complete copies of each report, schedule,
registration statement and definitive proxy statement filed by IMS or any of the
IMS Subsidiaries with the SEC on or after December 31, 1998 (the "IMS SEC
DOCUMENTS"), which are all the documents (other than preliminary material) that
IMS was required to file with the SEC on or after such date. As of their
respective dates or, in the case of registration statements, their effective
dates (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), none of the IMS SEC Documents
(including all exhibits and schedules thereto and documents incorporated by
reference therein) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and the IMS SEC Documents complied when filed in all
material respects with the then applicable requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations promulgated
by the SEC thereunder. IMS has filed all documents and agreements which were
required to be filed as exhibits to the IMS SEC Documents.
(B) FINANCIAL STATEMENTS. The financial statements of
IMS included in the IMS SEC Documents complied as to form in all material
respects with the then applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except as may have been indicated in the
notes thereto or, in the case of the unaudited statements, as permitted by Form
10-Q promulgated by the SEC) and fairly present (subject, in the case of the
unaudited statements, to normal, year-end audit adjustments) the consolidated
financial position of IMS and its consolidated IMS Subsidiaries as at the
respective
9
dates thereof and the consolidated results of their operations and cash flows
for the respective periods then ended.
2.5 INFORMATION SUPPLIED. None of the information supplied or
to be supplied by IMS for inclusion or incorporation by reference in the Form
S-4 and Prospectus/Proxy Statement will, at the time the Form S-4 is declared
effective, at the date the Prospectus/Proxy Statement is mailed to the
stockholders of IMS and at the time of the IMS Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading. The material to be
supplied by IMS in respect of the Prospectus/Proxy Statement will comply as to
form in all material respects with the provisions of the Exchange Act and the
rules and regulations promulgated by the SEC thereunder.
2.6 COMPLIANCE WITH APPLICABLE LAWS. Except as disclosed in
the IMS SEC Documents filed prior to the date of this Agreement, the businesses
of IMS and the IMS Subsidiaries have not been and are not being conducted in
violation of any federal, state, local or foreign law, ordinance, regulation,
rule or order of any Governmental Entity where such violation is reasonably
likely to have a Material Adverse Effect on IMS. Except as disclosed in the IMS
SEC Documents filed prior to the date of this Agreement, IMS has not been
notified by any Governmental Entity that any investigation or review with
respect to IMS or any of the IMS Subsidiaries is pending or threatened, nor has
any Governmental Entity notified IMS of its intention to conduct the same. IMS
and the IMS Subsidiaries have all material permits, licenses and franchises from
Governmental Entities required to conduct their businesses as now being
conducted, except for those whose absence is not reasonably likely to have a
Material Adverse Effect on IMS.
2.7 LITIGATION. Except as disclosed in the IMS SEC Documents
filed prior to the date of this Agreement, there is no suit, action,
arbitration, demand, claim or proceeding pending or, to the knowledge of IMS,
threatened against IMS or any of the IMS Subsidiaries, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against IMS or any of the IMS Subsidiaries that,
individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect on IMS.
2.8 ERISA AND OTHER COMPLIANCE.
(A) IMS has made available to TriZetto a list of (i)
each "employee benefit plan," as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and (ii) any other
plan, arrangement or agreement involving compensation or benefits, including any
employment agreements, plans or arrangements providing for insurance coverage
(including self-insured arrangements), retirement benefits, deferred
compensation, profit-sharing, incentive compensation, stock options, stock
purchases, phantom stock, stock appreciation, other stock-based awards, or
post-retirement insurance, maintained or contributed to or entered into as of
the date of this Agreement, or that has within the last six (6) years been
maintained or contributed to or entered into by IMS or any of the IMS
Subsidiaries or any ERISA Affiliate (as defined below) under which IMS or any of
the IMS Subsidiaries or any ERISA Affiliate has any present or future obligation
or liability with respect to any current or former employee, consultant, leased
employee or director of IMS or any of the IMS Subsidiaries or any ERISA
Affiliate (collectively, the "IMS EMPLOYEE PLANS"). For purposes of this
Agreement, "ERISA AFFILIATE" shall mean any entity which is a member of (A) a
"controlled group of corporations," as defined in Section 414(b) of the Code,
(B) a group of entities under "common control," as defined in Section
10
414(c) of the Code, or (C) an "affiliated service group," as defined in Section
414(m) of the Code, or treasury regulations promulgated under Section 414(o) of
the Code, any of which includes IMS or any of the IMS Subsidiaries. IMS has also
made available to TriZetto copies of all IMS Employee Plans, and as applicable,
all amendments thereto and written interpretations thereof, trust agreements,
insurance contracts, current summary plan descriptions and summaries of material
modification, the three (3) most recent annual reports (Form 5500, including, if
applicable, Schedule B thereto), the most recent determination letter from the
Internal Revenue Service, actuarial reports for the last three (3) years, all
agreements with fiduciaries and service providers and all substantive
correspondence with the Internal Revenue Service, the Department of Labor, the
Pension Benefit Guaranty Corporation or any other governmental agency. All
contributions due from IMS or any of the IMS Subsidiaries through December 31,
1999 with respect to any of the IMS Employee Plans have been made as may have
been required by ERISA and the Code or have been accrued in accordance with
generally accepted accounting practices on IMS's or any such IMS Subsidiary's
financial statements as of December 31, 1999. Each IMS Employee Plan has been
maintained and operated in compliance with its terms and with the requirements
prescribed by any and all applicable statutes, orders, rules and regulations,
including, without limitation, ERISA and the Code, except for such noncompliance
as would not have a Material Adverse Effect on IMS.
(B) No liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by IMS or any IMS Subsidiaries with
respect to any ongoing, frozen or terminated "single-employer plan", within the
meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any
of them, or the single-employer plan of an ERISA Affiliate. Neither any IMS
Employee Plan which is an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA ("PENSION PLAN") nor any single-employer plan of an ERISA
Affiliate has an "accumulated funding deficiency" (whether or not waived) within
the meaning of Section 412 of the Code or Section 302 of ERISA and no ERISA
Affiliate has an outstanding funding waiver. Neither IMS nor any IMS Subsidiary
has provided, or is required to provide, security to any Pension Plan or to any
single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the
Code. Under each Pension Plan which is a single-employer plan, the present value
of accrued benefits (whether or not vested), based upon the actuarial
assumptions used for funding purposes in the most recent actuarial report
prepared by such Pension Plan's actuary, did not, as of its latest valuation
date, exceed the then current value of the assets of such Pension Plan allocable
to such accrued benefits, and there has not been a material adverse change in
the financial condition of such Pension Plan since the last day of the most
recent plan year. No IMS Employee Plan is a "multiemployer plan," as defined in
Section 3(37) of ERISA. No notice of a "reportable event" within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not been
waived has been required to be filed for any Pension Plan or by any ERISA
Affiliate within the 12-month period ending on the date hereof. No "prohibited
transaction," as defined in Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any IMS Employee Plan which is covered by Title I
of ERISA which, assuming the taxable period of such transaction expired as of
the date hereof, could subject IMS or any IMS Subsidiary to a tax or penalty
result in a liability that would have a Material Adverse Effect on IMS. To the
knowledge of IMS, there are no pending, threatened or anticipated claims (other
than routine claims for benefits) by, on behalf of or against any of the IMS
Employee Plans which could result in a liability that would have a Material
Adverse Effect on IMS. No IMS Employee Plan, either individually or
collectively, provides for any payment by IMS or any IMS Subsidiary that would
not be deductible under Code Sections 162(a)(1), 162(m) or 404.
(C) Any IMS Employee Plan which is intended to be
qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue
11
Service, and IMS is not aware of any circumstances likely to result in
revocation of any such favorable determination letter.
(d) No IMS Employee Plan provides benefits,
including, without limitation, death or medical benefits (whether or not
insured), with respect to current or former employees of IMS or any IMS
Subsidiary beyond their retirement or other termination of service, other than
(i) coverage mandated by applicable law, (ii) death benefits or retirement
benefits under an IMS Employee Plan that is an "employee pension benefit plan"
within the meaning of Section 3(2) of ERISA, (iii) deferred compensation
benefits under a plan, which are accrued as liabilities on the books of IMS or
any IMS Subsidiary, or (iv) benefits the full cost of which is borne by the
current or former employee (or his beneficiary). All such IMS Employee Plans may
be amended or terminated at any time without causing IMS or any IMS Subsidiary
to incur liability having a Material Adverse Effect on IMS.
(e) Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby (either
alone or in conjunction with any other event) will (i) restrict or prohibit IMS
or any IMS Subsidiary from amending any IMS Employee Plan, (ii) result in any
payment constituting an "excess parachute payment" (within the meaning of
Section 280G of the Code), (iii) result in forgiveness of indebtedness of any
director, officer or employee of IMS or any IMS Subsidiary under any IMS
Employee Plan or otherwise, (iv) increase any benefits otherwise payable under
any IMS Employee Plan, or (v) result in any acceleration of the time of payment
or vesting of any benefits under any IMS Employee Plan or otherwise.
(f) IMS and each IMS Subsidiary is: (i) in compliance
in all material respects with all applicable laws, agreements and contracts
relating to employment, employment practices, wages, hours and terms and
conditions of employment, including, but not limited to, employee compensation
matters, but not including ERISA; (ii) has withheld and reported in all material
respects all amounts required by law or by agreement to be withheld and reported
with respect to wages, salaries and other payments to IMS employees; (iii) is
not liable in any material respect for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and (iv) is not liable
for any material payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits,
social security or other benefits or obligations for IMS employees (other than
payments to IMS Employee Plans and routine payments to be made in the normal
course of business and consistent with past practice). There are no pending,
threatened or reasonably anticipated material claims or actions against IMS or
any IMS Subsidiary under any worker's compensation policy or any uninsured
long-term disability policy. To IMS's knowledge, no employee of IMS has violated
in any material respect any employment contract, nondisclosure agreement or
noncompetition agreement by which such employee is bound due to such employee
being employed by IMS or any IMS Subsidiary and disclosing to IMS or using trade
secrets or proprietary information of any other Person.
(g) No work stoppage or labor strike against IMS or
any IMS Subsidiary is pending, threatened or reasonably anticipated with respect
to IMS employees. IMS does not know of any activities or proceedings of any
labor union to organize any such IMS employees. There are no actions, suits,
claims, labor disputes or grievances pending, or, to the knowledge of IMS,
threatened or reasonably anticipated relating to any labor, safety or
discrimination matters involving any IMS employee, including, without
limitation, charges of unfair labor practices or discrimination complaints,
which, if adversely determined, would, individually or in the aggregate, result
in any liability to IMS or any IMS Subsidiary having a Material Adverse Effect
on IMS. Neither IMS nor
12
any IMS Subsidiary is presently, nor has it been, a party to, or bound by, any
collective bargaining or union contract with respect to IMS employees and no
collective bargaining agreement is being negotiated by IMS or any IMS Subsidiary
with respect to such employees.
(h) All IMS Employee Plans covering current or former
non-U.S. IMS employees comply in all material respects with applicable local
law. IMS and the IMS Subsidiaries have no material unfunded liabilities with
respect to any Pension Plan that covers such non-U.S. employees.
2.9 Absence of Undisclosed Liabilities. At December 31, 1999
(the "IMS Balance Sheet Date"), (i) neither IMS nor any of the IMS Subsidiaries
had any liabilities or obligations of any nature (matured or unmatured, fixed or
contingent) which were material to IMS and the IMS Subsidiaries, taken as a
whole, and were not provided for in the consolidated balance sheet of IMS at the
IMS Balance Sheet Date, a copy of which has been delivered to TriZetto (the "IMS
BALANCE SHEET"); and (ii) all reserves established by IMS and set forth in the
IMS Balance Sheet were reasonably adequate.
2.10 Absence of Certain Changes or Events. As of the date
hereof, except as disclosed in the IMS SEC Documents filed prior to the date of
this Agreement or as contemplated by this Agreement, since the IMS Balance Sheet
Date (and other than in compliance with Section 4.3) there has not occurred:
(a) any change in the financial condition,
properties, businesses or results of operations of IMS and the IMS Subsidiaries
taken as a whole, that is reasonably likely to have a Material Adverse Effect on
IMS;
(b) any amendments or changes in the Certificate of
Incorporation or Bylaws of IMS;
(c) any damage destruction or loss to physical
property, whether covered by insurance or not, that is reasonably likely to
constitute a Material Adverse Effect on IMS;
(d) any redemption, repurchase or other acquisition
of shares of IMS Common Stock by IMS (other than pursuant to arrangements with
terminated employees or consultants), or any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to IMS Common Stock, other than regular quarterly
dividends on the IMS Common Stock and IMS's ongoing common stock repurchase
program;
(e) any material increase in or modification of the
compensation or benefits payable or to become payable by IMS to any of its
directors or employees, except in the ordinary course of business consistent
with past practice;
(f) any material increase in or modification of any
bonus, pension, or IMS Employee Plan or IMS Benefit Arrangement (including, but
not limited to, the granting of stock options, restricted stock awards or stock
appreciation rights) made to, for or with any of its employees, other than in
the ordinary course of business consistent with past practice;
(g) any acquisition or sale of a material amount of
property or assets of IMS, other than in the ordinary course of business
consistent with past practice;
13
(h) any alteration in any term of any outstanding
security of IMS;
(i) any (A) issuance or sale of any securities
convertible into or exchangeable for debt securities of IMS or (B) issuance or
sale of options or other rights to acquire from IMS, directly or indirectly,
debt securities of IMS or any securities convertible into or exchangeable for
any such debt securities;
(j) any material transfer or grant of a right under
the IMS IP Rights (as defined in Section 2.14 below), other than those
transferred or granted in the ordinary course of business consistent with past
practices;
(k) any material labor dispute or charge of unfair
labor practice (other than routine individual grievances), any material activity
or proceeding by a labor union or representative thereof to organize any
employees of IMS or any material campaign being conducted to solicit
authorization from employees to be represented by such labor union or any
material lockouts, strikes, slow downs, work stoppages or threats thereof by or
with such employees;
(l) any failure to make any material contribution due
under any of the IMS Employee Plans;
(m) any event, occurrence or development which is
reasonably likely to have a Material Adverse Effect on IMS;
(n) any material change in the accounting practices
of IMS, except for any such change required by reason of a concurrent change in
GAAP.
(o) any agreement or arrangement made by IMS to take
any action which, if taken prior to the date hereof, would have made any
representation or warranty set forth in this Agreement untrue or incorrect as of
the date when made unless otherwise disclosed.
2.11 No Defaults. Except as disclosed in the IMS SEC Documents
filed prior to the date of this Agreement, to IMS's knowledge, neither it nor
any of the IMS Subsidiaries nor any other party thereto is in breach or default
under, and there exists no event, condition or occurrence which, after notice or
lapse of time, or both, would constitute such a breach or default by IMS, any of
the IMS Subsidiaries or any other party under, any Contract to which IMS or any
of the IMS Subsidiaries is a party and which would, if terminated or modified,
have, insofar as can reasonably be foreseen, a Material Adverse Effect on IMS.
Each of such Contracts is in full force and effect and is a legal, valid and
binding agreement, enforceable in accordance with its terms, of each party
thereto, subject to the Bankruptcy and Equity Exception.
2.12 Certain Agreements. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(i) result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute, bonus or otherwise) becoming due to
any director or employee of IMS or any of the IMS Subsidiaries from IMS or any
of the IMS Subsidiaries, under any IMS Employee Plan, IMS Benefit Arrangement or
otherwise, (ii) materially increase any benefits otherwise payable under any IMS
Employee Plan, IMS Benefit Arrangement or otherwise or (iii) result in the
acceleration of the time of payment or vesting of any such benefits.
14
2.13 Taxes.
(a) Except as set forth in (or resulting from matters
set forth in) the IMS SEC Documents or as is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on IMS:
(1) IMS and each of the IMS Subsidiaries
have prepared in good faith and duly and timely filed (taking into account any
extension of time within which to file) with the appropriate governmental
agencies all franchise, income and all other material Tax (as defined below)
returns and reports required to be filed on or before the Effective Time
(collectively "RETURNS") and all such filed Returns are complete and accurate in
all material respects;
(2) IMS and each of the IMS Subsidiaries
have timely paid all Taxes that are shown as due on such filed Returns or that
IMS or any of the IMS Subsidiaries is obligated to withhold from amounts owing
to any employee, creditor or third party, except with respect to matters
contested in good faith;
(3) as of the date hereof, there are not
pending or, to the actual knowledge of the executive officers of IMS or any of
the IMS Subsidiaries, threatened in writing, any audits, examinations,
investigations or other proceedings in respect of Taxes or Tax matters;
(4) neither IMS nor any of the IMS
Subsidiaries is or may be liable for the Taxes of any Person (other than Persons
who at the Effective Time are members of the affiliated group of corporations of
which IMS is the common parent) pursuant to Section 1502 of the Code, by
agreement or otherwise; and
(5) neither IMS nor any of the IMS
Subsidiaries has any liability with respect to material income, franchise or
similar Taxes in excess of the amounts accrued in respect thereof that are
reflected in the financial statements included in the IMS SEC Documents other
than any liability for unpaid Taxes that may have properly accrued since the IMS
Balance Sheet Date in connection with the operation of the business of IMS or
any of the IMS Subsidiaries in the ordinary course.
(b) No payments to be made to any of the officers and
employees of IMS or any of the IMS Subsidiaries will as a result of consummation
of the Merger be subject to the deduction limitations under Section 280G of the
Code.
(c) "Tax" or "Taxes" shall mean all United States
federal, state, provincial, local or foreign taxes and any other applicable
duties, levies, fees, charges and assessments that are in the nature of a tax,
including income, gross receipts, property, sales, use, license, excise,
franchise, ad valorem, value-added, transfer, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Section 59A of
the Code), customs, capital stock, real property, personal property, alternative
or add-on minimum, estimated, social security payments, and health taxes and any
deductibles relating to wages, salaries and benefits and payments to
subcontractors, together with all interest, penalties and additions imposed with
respect to such amounts.
15
2.14 Intellectual Property.
(a) IMS and the IMS Subsidiaries own or have the
right to use all material Intellectual Property Rights (as defined below)
necessary or required for the operation of the business of IMS as currently
conducted (collectively, "IMS IP RIGHTS"), and have the right to use, license,
sublicense or assign the same without material liability to, or any requirement
of consent from, any other Person or party. The IMS IP Rights constitute all
Intellectual Property Rights necessary for the conduct of their businesses in
the manner conducted immediately prior to the Closing. All IMS IP Rights are
either owned by IMS and the IMS Subsidiaries free and clear of all liens and
encumbrances or are used pursuant to a license agreement; each such license
agreement is valid and enforceable and in full force and effect; neither IMS nor
any IMS Subsidiary is in material default thereunder; and to the knowledge of
IMS, no corresponding licensor is in material default thereunder. None of the
IMS IP Rights infringes or otherwise conflicts with any Intellectual Property
Rights or other right of any Person; there is no pending or, to the knowledge of
IMS, threatened (in writing) litigation, adversarial proceeding, administrative
action or other challenge or claim relating to any IMS IP Rights; there is no
outstanding order relating to any IMS IP Rights; to the knowledge of IMS, there
is currently no infringement by any Person of any IMS IP Rights; and the IMS IP
Rights owned, used or possessed by IMS and the IMS Subsidiaries is sufficient
and adequate to conduct the business of IMS and the IMS Subsidiaries to the full
extent as such business is currently conducted.
(b) IMS and the IMS Subsidiaries have taken
reasonable steps to protect, maintain and safeguard its respective IMS IP
Rights, including any IMS IP Rights for which improper or unauthorized
disclosure would impair its value or validity materially, and has executed and
required appropriate nondisclosure agreements and made appropriate filings and
registrations in connection with the foregoing.
(c) A true and complete list of all material Software
(as defined below) owned by IMS and the IMS Subsidiaries has heretofore been
made available to TriZetto. All of the Software owned by IMS and the IMS
Subsidiaries is Year 2000 Compliant (as defined below). A true and complete list
of all material third party Software used by IMS and the IMS Subsidiaries has
heretofore been made available to TriZetto. To the knowledge of IMS, all
material third party Software currently used by IMS and the IMS Subsidiaries is
Year 2000 Compliant. "SOFTWARE" means and includes all computer programs,
whether in source code, object code or other form (including without limitation
any embedded in or otherwise constituting part of a computer hardware device),
algorithms, edit controls, methodologies, applications, flow charts and any and
all systems documentation (including, but not limited to, data entry and data
processing procedures, report generation and quality control procedures), logic
and designs for all programs, and file layouts and written narratives of all
procedures used in the coding or maintenance of the foregoing.
(d) A true and complete list of all material
Databases (as defined below) owned by IMS and the IMS Subsidiaries has
heretofore been made available to TriZetto. All of the Databases owned by IMS
and the IMS Subsidiaries are Year 2000 Compliant. A true and complete list of
all material third party Databases used by IMS and the IMS Subsidiaries has
heretofore been made available to TriZetto. To the knowledge of IMS, all
material third party Databases currently used by IMS and the IMS Subsidiaries
are Year 2000 Compliant. "DATABASES" means and includes all compilations of data
and all related documentation and written narratives of all procedures used in
connection with the collection, processing and distribution of data contained
therein, together with information that describes the attributes of certain data
and such data's relationship to other data,
16
including, without limitation, (A) whether the data must be numerical,
alphabetic, or alphanumeric, (B) range or type limitations of the data, (C)
one-to-one, one-to-many, or many-to-many relationships with other data, (D) file
layouts, and (E) data formats.
(e) No material confidential or trade secret
information of IMS or any IMS Subsidiary has been provided to any Person except
subject to written confidentiality agreements, except for any such disclosure
which has not resulted and is not reasonably likely to result in a Material
Adverse Effect on IMS.
(f) IMS and the IMS Subsidiaries have valid
copyrights in all material copyrightable material whether or not registered with
the U.S. copyright office, including all copyrights in the IMS Products (as
defined herein) containing material copyrightable material. Consummation of the
transactions contemplated hereby will not alter or impair the validity of any
copyrights or copyright registrations.
(g) (A) No third party (including any original
equipment manufacturer or site license customer) has any right to manufacture,
reproduce, distribute, sell, sublicense, market or exploit any of the products
or services offered by IMS or any IMS Subsidiary (the "IMS PRODUCTS") or any
adaptations, translations, or derivative works based on the IMS Products, or any
portion thereof; (B) Neither IMS nor any IMS Subsidiary has granted to any third
party any exclusive rights of any kind with respect to any of the IMS Products,
including territorial exclusivity or exclusivity with respect to particular
versions, implementations or translations of any of the IMS Products; and (C)
Neither IMS nor any IMS Subsidiary has granted any third party any right to
market any product utilizing any IMS Product under any "private label"
arrangements pursuant to which IMS or any IMS Subsidiary is not identified as
the source of such goods. Each document or instrument identified pursuant to
this Section is listed in Section 2.14 of the IMS Disclosure Letter and true and
correct copies of such documents or instruments have been furnished to TriZetto.
No third party has any right to manufacture, reproduce, distribute, sublicense,
market or exploit any works or materials of which any of the IMS Products are a
derivative work.
(h) Except as is not reasonably likely to have a
Material Adverse Effect on IMS, each of the IMS Products: (A) substantially
complies with all specifications set forth thereof in any contract, agreement,
advertisement or other promotional material for such products and with all other
warranty requirements, other than bugs or fixes required or expected in the
ordinary course of business and not otherwise material to IMS's business; and
(B) can be recreated from its associated source code and related documentation
by reasonably experienced technical personnel without undue burden.
(i) To the knowledge of IMS, no employee of IMS or
any IMS Subsidiary is in violation of any term of any employment contract,
patent disclosure agreement or any other contract or agreement relating to the
relationship of any such employee with IMS or any other party because of the
nature of the business conducted by IMS or proposed to be conducted by IMS.
(j) If IMS or any IMS Subsidiary is obligated to
repair or replace products or services previously provided by IMS or any IMS
Subsidiary that are not Year 2000 Compliant in order to meet IMS's or any IMS
Subsidiary's contractual obligations, to avoid personal injury or other
liability, to avoid misrepresentation claims, or to satisfy any other
obligations or
17
requirements, to the knowledge of IMS, IMS and the IMS Subsidiaries have
repaired or replaced those products and services to make them Year 2000
Compliant in all material respects.
(k) All of the Software owned or used by IMS complies
in all material respects with the currently known and relevant provisions of the
Health Insurance Portability and Accountability Act of 1996, as amended.
(l) "Year 2000 Compliant" means that (1) the
products, services, or other item(s) at issue accurately process, provide and/or
receive all date/time data (including calculating, comparing, sequencing,
processing and outputting) within, from, into, and between centuries (including
the twentieth and twenty-first centuries and the years 1999 and 2000), including
leap year calculations, and (2) neither the performance nor the functionality of
the products, services, and other item(s) at issue will be affected by any
dates/times prior to, on, after, or spanning January 1, 2000. The design of the
products, services, and other item(s) at issue to ensure compliance with the
foregoing warranties and representations includes proper date/time data century
recognition and recognition of 1999 and 2000, calculations that accommodate
single century and multi-century formulae and date/time values before, on,
after, and spanning January 1, 2000, and date/time data interface values that
reflect the century, 1999, and 2000. In particular, but without limitation, (i)
no value for current date/time will cause any error, interruption, or decreased
performance in or for such product(s), service(s), and other item(s), (ii) all
manipulations of date and time related data (including calculating, comparing,
sequencing, processing, and outputting) will produce correct results for all
valid dates and times when used independently or in combination with other
products, services, and/or items, (iii) date/time elements in interfaces and
data storage will specify the century to eliminate date ambiguity without human
intervention, including leap year calculations, (iv) where any date/time element
is represented without a century, the correct century will be unambiguous for
all manipulations involving that element, (v) authorization codes, passwords,
and zaps (purge functions) will function normally and in the same manner during,
prior to, on and after January 1, 2000, including the manner in which they
function with respect to expiration dates and CPU serial numbers, and (vi)
supply of the product(s), service(s), and other item(s) will not be interrupted,
delayed, decreased, or otherwise affected by the year 2000.
(m) As used herein, the term "Intellectual Property
Rights" shall mean all worldwide industrial and intellectual property rights,
including, without limitation, patents, patent applications, patent rights,
trademarks, trademark applications, trade names, service marks, service xxxx
applications, copyright, copyright applications, franchises, licenses,
inventories, know-how, trade secrets, customer lists, proprietary processes and
formulae, all source and object code, algorithms, architecture, structure,
display screens, layouts, inventions, development tools, Software, Databases and
all documentation and media constituting, describing or relating to the above,
including, without limitation, manuals, memoranda and records.
2.15 Fees and Expenses. Neither IMS nor any of the IMS
Subsidiaries has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary in connection with the transactions contemplated
by this Agreement.
2.16 Environmental Matters.
(a) IMS and each IMS Subsidiary, including all of
their businesses and operations, are, and have been, operated in compliance with
all laws, statutes, rules, regulations and other restrictions or requirements of
any domestic or foreign governmental authority concerning or
18
relating to industrial hygiene or protection of human health or the environment
or to emissions, discharges or releases of pollutants, contaminants or other
Hazardous Substances (as defined below) or wastes into the environment,
including without limitation ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants
or other Hazardous Substances or wastes or the clean-up or other remediation
thereof (collectively, "ENVIRONMENTAL LAWS"), except where the failure to so
comply has not had, and is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on IMS. "HAZARDOUS SUBSTANCES" shall mean
any substance regulated under any Environmental Laws including, without
limitation, any substance which is: (A) petroleum, asbestos or
asbestos-containing material, or polychlorinated biphenls; (B) defined,
designated or listed as a "Hazardous Substance" pursuant to Sections 307 and 311
of the Clean Water Act, 33 U.S.C. xx.xx. 1317, 1321, Section 101(14) of CERCLA,
42 U.S.C. ss. 9601; (C) listed in the United States Department of Transportation
Hazardous Material Tables, 49 C.F.R. ss. 172.101; or (D) defined, designated or
listed as a "Hazardous Waste" under Section 1004(5) of the Resource and
Conservation and Recovery Act, 42 U.S.C. 6903(5).
(b) Except as is not reasonably likely to have a
Material Adverse Effect on IMS, neither IMS nor any IMS Subsidiary has received
notice or has knowledge of:
(1) any claim, demand, investigation,
enforcement action, response, removal, remedial action, statutory lien or other
governmental or regulatory action instituted or threatened against IMS or any
IMS Subsidiary or any real property which is now owned, used or leased to or by
IMS or any IMS Subsidiary (the "IMS Current Real Property") or any real property
which was, but is no longer, owned, used or leased to or by IMS or any IMS
Subsidiary ("IMS FORMER REAL PROPERTY") pursuant to any Environmental Law;
(2) any claim, demand notice, suit or
action, made or threatened by any Person against IMS, any IMS Subsidiary, the
IMS Current Real Property or the IMS Former Real Property relating to (A) any
form of damage, loss or injury resulting from or claimed to result from, any
Hazardous Substance on, about, beneath or arising from the IMS Current Real
Property or IMS Former Real Property or (B) any alleged material violation of
any Environmental Law by IMS or any IMS Subsidiary; or
(3) any communication to or from any
governmental authority alleging violations, liability or contamination arising
out of or in connection with Hazardous Substances on, about, beneath, arising
from or generated at the IMS Current Real Property or IMS Former Real Property,
including without limitation, any notice of violation, citation, complaint,
order, directive, request for information or response thereto, notice letter,
demand letter or compliance schedule.
2.17 Interested Party Transactions. Except as disclosed in the
IMS SEC Documents filed prior to the date of this Agreement, no officer or
director of IMS or any "affiliate" or "associate" (as those terms are defined in
Rule 405 promulgated under the Securities Act) of any such person has had,
either directly or indirectly, a material interest in: (i) any Person which
purchases from or sells, licenses or furnishes to IMS or any of the IMS
Subsidiaries any material amount of goods, property, technology or intellectual
or other property rights or services; or (ii) any material contract or agreement
to which IMS or any of the IMS Subsidiaries is a party or by which it may be
bound or affected.
19
2.18 Board Approval. The Board of Directors of IMS has, as of
the date hereof, unanimously (i) approved this Agreement and the Merger, (ii)
determined that the Merger is in the best interests of the stockholders of IMS
and is on terms that are fair to such stockholders and (iii) recommended that
the stockholders of IMS adopt this Agreement and the Merger.
2.19 Vote Required. The affirmative vote of a majority of the
votes that holders of the outstanding shares of IMS Common Stock are entitled to
cast is the only vote of the holders of any class or series of IMS's capital
stock necessary to approve this Agreement and the Merger.
2.20 Fairness Opinion. IMS's Board of Directors has received
an opinion from Xxxxxxx, Sachs & Co. that as of the date hereof the Exchange
Ratio is fair to IMS's stockholders from a financial point of view.
2.21 Restrictions on Business Activities. There is no material
agreement, judgment, injunction, order or decree binding upon IMS or any of the
IMS Subsidiaries that has or could reasonably be expected to have the effect of
prohibiting or materially impairing the conduct of business by IMS or any of the
IMS Subsidiaries as currently conducted or any acquisition of property by IMS or
any of the IMS Subsidiaries.
2.22 Takeover Statutes. No "fair price," "moratorium,"
"control share acquisition" or other similar anti-takeover statute or regulation
(including Section 203 of the DGCL) (each a "TAKEOVER STATUTE") or any
anti-takeover provision in IMS's certificate of incorporation or by-laws is
applicable to IMS, the IMS Common Stock, the Merger or the other transactions
contemplated by this Agreement or the IMS Voting Agreement.
3. Representations and Warranties of TriZetto.
Except as set forth in a letter dated the date of this Agreement and
delivered by TriZetto to IMS concurrently herewith (the "TRIZETTO DISCLOSURE
LETTER"), TriZetto hereby represents and warrants to IMS that:
3.1 Organization; Good Standing; Qualification and Power.
TriZetto and each of its subsidiaries (the "TriZetto Subsidiaries") is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary, other
than in such jurisdictions where the failure to qualify is not reasonably likely
to have a Material Adverse Effect on TriZetto. The TriZetto Disclosure Letter
sets forth a correct and complete list of the TriZetto Subsidiaries. TriZetto
has made available to IMS or its counsel complete and correct copies of the
certificates or articles of incorporation and bylaws of TriZetto and each of the
TriZetto Subsidiaries, in each case as amended to the date of this Agreement.
3.2 Capital Structure.
(a) Stock and Options. The authorized capital stock
of TriZetto consists of 40,000,000 shares of TriZetto Common Stock and 5,000,000
shares of Preferred Stock, $0.001 par value (the "TRIZETTO PREFERRED STOCK"). At
the close of business on March 24, 2000, 21,198,896
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shares of TriZetto Common Stock were issued and outstanding, no shares of
TriZetto Common Stock were held by TriZetto in its treasury and 3,769,419 shares
of TriZetto Common Stock were reserved for issuance upon the exercise of
outstanding TriZetto options (the "TRIZETTO OPTIONS"). No shares of TriZetto
Preferred Stock are issued or outstanding. All outstanding shares of TriZetto
Common Stock are validly issued, fully paid and nonassessable and not subject to
preemptive rights. All outstanding shares of the capital stock of each of the
TriZetto Subsidiaries are validly issued, fully paid and nonassessable and are
owned by TriZetto or one of the TriZetto Subsidiaries free and clear of any
liens, security interests, pledges, agreements, claims, charges or encumbrances.
TriZetto has made available to IMS a correct and complete copy of its 1998 Stock
Option Plan (the "TRIZETTO PLAN") and a correct and complete list of each
TriZetto Option outstanding as of the date hereof, including the name of the
holder of such TriZetto Option, the TriZetto option plan pursuant to which such
TriZetto Option was issued, the security and number of shares covered by such
TriZetto Option, the per share exercise price of such TriZetto Option and the
vesting schedule applicable to each such TriZetto Option.
(b) No Other Commitments. Except for the TriZetto
Options disclosed in Section 3.2(a) above, there are no options, warrants,
calls, rights, commitments, conversion rights or agreements of any character to
which TriZetto or any of the TriZetto Subsidiaries is a party or by which
TriZetto or any of the TriZetto Subsidiaries is bound obligating TriZetto or any
of the TriZetto Subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock of TriZetto or any of the
TriZetto Subsidiaries or securities convertible into or exchangeable for shares
of capital stock of TriZetto or any of the TriZetto Subsidiaries, or obligating
TriZetto or any of the TriZetto Subsidiaries to grant, extend or enter into any
such option, warrant, call, right, commitment, conversion right or agreement.
There are no voting trusts or other agreements or understandings to which
TriZetto is a party with respect to the voting of the capital stock of TriZetto
or any of the TriZetto Subsidiaries.
3.3 Authority.
(a) Corporate Action. TriZetto has all requisite
corporate power and authority to enter into this Agreement and the IMS Voting
Agreement and, subject to approval of this Agreement and the Merger by the
stockholders of TriZetto, to perform its obligations hereunder and to consummate
the Merger and the other transactions contemplated by this Agreement and the IMS
Voting Agreement. The execution and delivery of this Agreement and the IMS
Voting Agreement by TriZetto and, subject to adoption and approval by the
stockholders of TriZetto of the TriZetto Proposals (as defined in Section 5.4),
the consummation by TriZetto of the Merger and the other transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of TriZetto. Each of this Agreement and the IMS Voting Agreement has
been duly executed and delivered by TriZetto and is the valid and binding
obligation of TriZetto, enforceable in accordance with its terms, except that
such enforceability may be subject to the Bankruptcy and Equity Exception.
(b) No Conflict. Neither the execution, delivery and
performance of this Agreement or the IMS Voting Agreement nor the consummation
of the transactions contemplated hereby or thereby nor compliance with the
provisions hereof or thereof will: (i) conflict with, or result in any
violations of, or cause a breach or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in, or the loss of any
material benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties or assets of
TriZetto or
21
any of the TriZetto Subsidiaries under, any term, condition or provision of (A)
the certificate of incorporation or bylaws of TriZetto or any of the TriZetto
Subsidiaries or (B) any Contract, permit, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to TriZetto or any of the TriZetto
Subsidiaries or their respective properties or assets, other than any such
conflicts, violations, defaults, losses, liens, security interests, charges or
encumbrances which, individually or in the aggregate, is not reasonably likely
to have a Material Adverse Effect on TriZetto; or (ii) require the affirmative
vote of the holders of greater than a majority of the issued and outstanding
shares of TriZetto Common Stock.
(c) Governmental Consents. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained by TriZetto or any of the
TriZetto Subsidiaries in connection with the execution and delivery of this
Agreement or the IMS Voting Agreement or the consummation of the transactions
contemplated hereby or thereby, except for: (i) the filing with the SEC of (A)
the Form S-4, (B) the Prospectus/Proxy Statement, (C) the Tracking Stock Form
10, (D) the STB Form 10 and (E) such reports and information under the Exchange
Act and the rules and regulations promulgated by the SEC thereunder as may be
required in connection with this Agreement and the IMS Voting Agreement and the
transactions contemplated hereby or thereby; (ii) the filing of the Delaware
Certificate of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in which
TriZetto is qualified to do business; (iii) the filing of the Certificate of
Designations with the Secretary of State of the State of Delaware, (iv) such
filings, authorizations, orders and approvals as may be required under foreign
securities laws, state securities laws and the rules of the NYSE and the Nasdaq;
(v) such filings and notifications as may be necessary under the HSR Act and
applicable foreign antitrust laws; and (vi) where the failure to obtain such
consents, approvals, etc., would not prevent or delay the consummation of the
Merger or otherwise prevent TriZetto from performing its obligations under this
Agreement or the IMS Voting Agreement and is not reasonably likely to have a
Material Adverse Effect on TriZetto.
3.4 SEC Documents.
(a) SEC Reports. TriZetto has made available to IMS
or its counsel correct and complete copies of each report, schedule,
registration statement and definitive proxy statement filed by TriZetto with the
SEC on or after October 7, 1999 (the "TRIZETTO SEC DOCUMENTS"), which are all
the documents (other than preliminary material) that TriZetto was required to
file with the SEC on or after such date. As of their respective dates or, in the
case of registration statements, their effective dates (or if amended or
superseded a filing prior to the date of this Agreement, then on the date of
such filing), none of the TriZetto SEC Documents
(including all exhibits and schedules thereto and
documents incorporated by reference therein) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the TriZetto SEC
Documents complied when filed in all material respects with the then applicable
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations promulgated by the SEC thereunder. TriZetto has filed
all documents and agreements which were required to be filed as exhibits to the
TriZetto SEC Documents.
(b) Financial Statements. The financial statements of TriZetto included in the
TriZetto SEC Documents complied as to form in all material respects with the
then applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto,
22
were prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may have
been indicated in the notes thereto or, in the case of the unaudited statements,
as permitted by Form 10-Q promulgated by the SEC) and fairly present (subject,
in the case of the unaudited statements, to normal, year-end audit adjustments)
the consolidated financial position of TriZetto and its consolidated TriZetto
Subsidiaries as at the respective dates thereof and the consolidated results of
their operations and cash flows for the respective periods then ended.
3.5 Information Supplied. None of the information supplied or
to be supplied by TriZetto for inclusion or incorporation by reference in the
Form S-4 and Prospectus/Proxy Statement will, at the time the Form S-4 is
declared effective, at the date the Prospectus/Proxy Statement is mailed to the
stockholders of TriZetto and at the time of the TriZetto Stockholders Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading. The
Prospectus/Proxy Statement will comply as to form in all material respects with
the provisions of the Securities Act and the Exchange Act and the rules and
regulations promulgated by the SEC thereunder.
3.6 Compliance with Applicable Laws. Except as disclosed in
the TriZetto SEC Documents filed prior to the date of this Agreement, the
businesses of TriZetto and the TriZetto Subsidiaries have not been, and are not
being, conducted in violation of any federal, state, local or foreign law,
ordinance, regulation, rule or order of any Governmental Entity where such
violation is reasonably likely to have a Material Adverse Effect on TriZetto.
Except as disclosed in the TriZetto SEC Documents filed prior to the date of
this Agreement, TriZetto has not been notified by any Governmental Entity that
any investigation or review with respect to TriZetto or any of the TriZetto
Subsidiaries is pending or threatened, nor has any Governmental Entity notified
TriZetto of its intention to conduct the same. TriZetto and the TriZetto
Subsidiaries have all material permits, licenses and franchises from
Governmental Entities required to conduct their businesses as now being
conducted, except for those whose absence is not reasonably likely to have a
Material Adverse Effect on TriZetto.
3.7 Litigation. Except as disclosed in the TriZetto SEC
Documents filed prior to the date of this Agreement, there is no suit, action,
arbitration, demand, claim or proceeding pending or, to the best knowledge of
TriZetto, threatened against TriZetto or any of the TriZetto Subsidiaries; nor
is there any judgment, decree, injunction, rule or order of any Governmental
Entity or arbitrator outstanding against TriZetto or any of the TriZetto
Subsidiaries that, individually or in the aggregate, is reasonably likely to
have a Material Adverse Effect on TriZetto. TriZetto has made available to IMS
or its counsel correct and complete copies of all correspondence prepared by its
counsel for TriZetto's auditors in connection with the last two (2) completed
audits of TriZetto's financial statements and any such correspondence since the
date of the last such audit.
3.8 ERISA and Other Compliance.
(a) TriZetto has made available to IMS a list of (i)
each "employee benefit plan," as defined in Section 3(3) of ERISA, and (ii) any
other plan, arrangement or agreement involving direct or indirect compensation
or benefits, including any employment agreements, plans or arrangements
providing for insurance coverage (including self-insured arrangements),
retirement benefits, deferred compensation, profit-sharing, incentive
compensation, stock options, stock purchases, phantom stock, stock appreciation,
other stock-based awards, or post-retirement
23
insurance, maintained or contributed to or entered into as of the date of this
Agreement, or that has within the last six (6) years been maintained or
contributed to or entered into by TriZetto or any of the TriZetto Subsidiaries
or any ERISA Affiliate (as defined in Section 2.8) under which TriZetto or any
of the TriZetto Subsidiaries or any ERISA Affiliate has any present or future
obligation or liability with respect to any current or former employee,
consultant, leased employee or director of TriZetto or any of the TriZetto
Subsidiaries or any ERISA Affiliate (collectively, the "TRIZETTO EMPLOYEE
PLANS"). TriZetto has also made available to IMS copies of all TriZetto Employee
Plans, and as applicable, all amendments thereto and written interpretations
thereof, trust agreements, insurance contracts, current summary plan
descriptions and any summaries of material modification, the three (3) most
recent annual reports (Form 5500, including, if applicable, Schedule B thereto),
the most recent determination letter from the Internal Revenue Service,
actuarial reports for the last three (3) years, all agreements with fiduciaries
and service providers and all substantive correspondence with the Internal
Revenue Service, the Department of Labor, the Pension Benefit Guaranty
Corporation or any other governmental agency. All contributions due from
TriZetto or any of the TriZetto Subsidiaries through December 31, 1999 with
respect to any of the TriZetto Employee Plans have been made as may have been
required by ERISA and the Code or have been accrued in accordance with generally
accepted accounting practices on TriZetto's or any such TriZetto Subsidiary's
financial statements as of December 31, 1999. Each TriZetto Employee Plan has
been maintained and operated in compliance with its terms and with the
requirements prescribed by any and all applicable statutes, orders, rules and
regulations, including, without limitation, ERISA and the Code, except for such
noncompliance as would not have a Material Adverse Effect on TriZetto.
(b) No TriZetto Employee Plan is subject to Title IV
of ERISA. No TriZetto Employee Plan is a "multiemployer plan," as defined in
Section 3(37) of ERISA. No "prohibited transaction," as defined in Section 406
of ERISA or Section 4975 of the Code, has occurred with respect to any TriZetto
Employee Plan which is covered by Title I of ERISA which, assuming the taxable
period of such transaction expired as of the date hereof, could subject TriZetto
or any TriZetto Subsidiary to a tax or penalty that would have a Material
Adverse Effect on TriZetto. To the knowledge of TriZetto, there are no pending,
threatened or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the TriZetto Employee Plans which could result in a
liability that would have a Material Adverse Effect on TriZetto. No TriZetto
Employee Plan, either individually or collectively, provides for any payment by
TriZetto or any TriZetto Subsidiary that would not be deductible under Code
Sections 162(a)(1), 162(m) or 404.
(c) Any TriZetto Employee Plan which is intended to
be qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service, and TriZetto is not
aware of any circumstances likely to result in revocation of any such favorable
determination letter.
(d) No TriZetto Employee Plan provides benefits,
including, without limitation, death or medical benefits (whether or not
insured), with respect to current or former employees of TriZetto or any
TriZetto Subsidiary beyond their retirement or other termination of service,
other than (i) coverage mandated by applicable law, (ii) death benefits or
retirement benefits under a TriZetto Employee Plan that is an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA, (iii) deferred
compensation benefits under a plan, which are accrued as liabilities on the
books of TriZetto or any TriZetto Subsidiary, or (iv) benefits the full cost of
which is borne by the current or former employee (or his beneficiary). All such
TriZetto Employee Plans may be amended or terminated at any time without causing
TriZetto or any TriZetto Subsidiary to incur liability having a Material Adverse
Effect on TriZetto.
24
(e) Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby (either
alone or in conjunction with any other event) will (i) restrict or prohibit
TriZetto or any TriZetto Subsidiary from amending any TriZetto Employee Plan,
(ii) result in any payment constituting an "excess parachute payment" (within
the meaning of Section 280G of the Code), (iii) result in forgiveness of
indebtedness to any director, officer or employee of TriZetto or any TriZetto
Subsidiary under any TriZetto Employee Plan or otherwise, (iv) increase any
benefits otherwise payable under any TriZetto Employee Plan or (v) result in any
acceleration of the time of payment or vesting of any benefits under any
TriZetto Employee Plan or otherwise.
(f) TriZetto and each TriZetto Subsidiary is: (i) in
compliance in all material respects with all applicable laws, agreements and
contracts relating to employment, employment practices, wages, hours and terms
and conditions of employment, including, but not limited to, employee
compensation matters, but not including ERISA; (ii) has withheld and reported in
all material respects all amounts required by law or by agreement to be withheld
and reported with respect to wages, salaries and other payments to TriZetto
employees; (iii) is not liable in any material respect for any arrears of wages
or any taxes or any penalty for failure to comply with any of the foregoing; and
(iv) is not liable for any material payment to any trust or other fund or to any
governmental or administrative authority, with respect to unemployment
compensation benefits, social security or other benefits or obligations for
TriZetto employees (other than payments to TriZetto Employee Plans and routine
payments to be made in the normal course of business and consistent with past
practice). There are no pending, threatened or reasonably anticipated material
claims or actions against TriZetto or any TriZetto Subsidiary under any worker's
compensation policy or any uninsured long-term disability policy. To TriZetto's
knowledge, no employee of TriZetto has violated in any material respect any
employment contract, nondisclosure agreement or noncompetition agreement by
which such employee is bound due to such employee being employed by TriZetto or
any TriZetto Subsidiary and disclosing to TriZetto or using trade secrets or
proprietary information of any other Person.
(g) No work stoppage or labor strike against TriZetto
or any TriZetto Subsidiary is pending, threatened or reasonably anticipated with
respect to TriZetto employees. TriZetto does not know of any activities or
proceedings of any labor union to organize any such TriZetto employees. There
are no actions, suits, claims, labor disputes or grievances pending, or, to the
knowledge of TriZetto, threatened or reasonably anticipated relating to any
labor, safety or discrimination matters involving any TriZetto employee,
including, without limitation, charges of unfair labor practices or
discrimination complaints, which, if adversely determined, would, individually
or in the aggregate, result in any liability to TriZetto or any TriZetto
Subsidiary having a Material Adverse Effect on TriZetto. Neither TriZetto nor
any TriZetto Subsidiary is presently, nor has it been, a party to, or bound by,
any collective bargaining or union contract with respect to TriZetto employees
and no collective bargaining agreement is being negotiated by TriZetto or any
TriZetto Subsidiary with respect to such employees.
3.9 Absence of Undisclosed Liabilities. At December 31, 1999
(the "TriZetto Balance Sheet Date"), (i) neither TriZetto nor any of the
TriZetto Subsidiaries had any liabilities or obligations of any nature (matured
or unmatured, fixed or contingent) which were material to TriZetto and the
TriZetto Subsidiaries, taken as a whole, and were not provided for in the
consolidated balance sheet of TriZetto at the TriZetto Balance Sheet Date, a
copy of which has been delivered to IMS (the "TRIZETTO BALANCE SHEET"); and (ii)
all reserves established by TriZetto and set forth in the TriZetto Balance Sheet
were reasonably adequate.
25
3.10 Absence of Certain Changes or Events. As of the date
hereof, except as disclosed in the TriZetto SEC Documents filed prior to the
date of this Agreement or as contemplated by this Agreement, since the TriZetto
Balance Sheet Date (and other than in compliance with Section 5.3) there has not
occurred:
(a) any change in the financial condition,
properties, businesses or results of operations of TriZetto and the TriZetto
Subsidiaries taken as a whole that is reasonably likely to constitute a Material
Adverse Effect on TriZetto;
(b) any amendments or changes in the Certificate of
Incorporation or Bylaws of TriZetto;
(c) any damage destruction or loss to physical
property, whether covered by insurance or not, that is reasonably likely to
constitute a Material Adverse Effect on TriZetto;
(d) any redemption, repurchase or other acquisition
of shares of TriZetto Common Stock by TriZetto (other than pursuant to
arrangements with terminated employees or consultants), or any declaration,
setting aside or payment of any dividend or other distribution (whether in cash,
stock or property) with respect to TriZetto Common Stock;
(e) any material increase in or modification of the
compensation or benefits payable or to become payable by TriZetto to any of its
directors or employees, except in the ordinary course of business consistent
with past practice;
(f) any material increase in or modification of any
bonus, pension, insurance or TriZetto Employee Plan or TriZetto Benefit
Arrangement (including, but not limited to, the granting of stock options,
restricted stock awards or stock appreciation rights) made to, for or with any
of its employees, other than in the ordinary course of business consistent with
past practice;
(g) any acquisition or sale of a material amount of
property or assets of TriZetto, other than in the ordinary course of business
consistent with past practice and those contemplated by this Agreement;
(h) any alteration in any term of any outstanding
security of TriZetto;
(i) any (A) incurrence, assumption or guarantee by
TriZetto of any debt for borrowed money; (B) issuance or sale of any securities
convertible into or exchangeable for debt securities of TriZetto; or (C)
issuance or sale of options or other rights to acquire from TriZetto, directly
or indirectly, debt securities of TriZetto or any securities convertible into or
exchangeable for any such debt securities;
(j) any creation or assumption by TriZetto of any
mortgage, pledge, security interest or lien or other encumbrance on any asset;
(k) any making of any loan, advance or capital
contribution to or investment in any Person other than (i) travel loans or
advances made in the ordinary course of business of TriZetto, (ii) other loans
and advances in an aggregate amount which does not exceed $500,000 outstanding
at any time and (iii) purchases on the open market of liquid, publicly traded
securities;
26
(l) any entering into, amendment of, relinquishment,
termination or non-renewal by TriZetto of any contract, lease transaction,
commitment or other right or obligation other than in the ordinary course of
business;
(m) any material transfer or grant of a right under
the TriZetto IP Rights (as defined in Section 3.14 below), other than those
transferred or granted in the ordinary course of business consistent with past
practices;
(n) any material labor dispute or charge of unfair
labor practice (other than routine individual grievances), any material activity
or proceeding by a labor union or representative thereof to organize any
employees of TriZetto, any material campaign being conducted to solicit
authorization from employees to be represented by such labor union or any
material lockouts, strikes, slow downs, work stoppages or threats thereof by or
with such employees;
(o) any failure to make any material contribution due
under any of the TriZetto Employee Plans;
(p) any event, occurrence or development which is
reasonably likely to have a Material Adverse Effect on TriZetto;
(q) any material change in the accounting practices
of TriZetto, except for any such change required by reason of a concurrent
change in GAAP; or
(r) any agreement or arrangement made by TriZetto to
take any action which, if taken prior to the date hereof, would have made any
representation or warranty set forth in this Agreement untrue or incorrect as of
the date when made unless otherwise disclosed.
3.11 No Defaults. Except as disclosed in the TriZetto SEC
Documents filed prior to the date of this Agreement, to TriZetto's knowledge,
neither it nor any of the TriZetto Subsidiaries nor any other party thereto is
in breach or default under, and there exists no event, condition or occurrence
which, after notice or lapse of time, or both, would constitute such a breach or
default by TriZetto, any of the TriZetto Subsidiaries or any other party under,
any Contract to which TriZetto or any of the TriZetto Subsidiaries is a party
and which would, if terminated or modified, have, insofar as can reasonably be
foreseen, a Material Adverse Effect on TriZetto. Each of such Contracts is in
full force and effect and is a legal, valid and binding agreement, enforceable
in accordance with its terms, of each party thereto, subject to the Bankruptcy
and Equity Exception.
3.12 Certain Agreements. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(i) result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute, bonus or otherwise) becoming due to
any director or employee of TriZetto or any of the TriZetto Subsidiaries from
TriZetto or any of the TriZetto Subsidiaries, under any TriZetto Employee Plan,
TriZetto Benefit Arrangement or otherwise, (ii) materially increase any benefits
otherwise payable under any TriZetto Employee Plan or TriZetto Benefit
Arrangement or (iii) result in the acceleration of the time of payment or
vesting of any such benefits.
3.13 Taxes.
27
(a) Except as set forth in (or resulting from matters set
forth in) the TriZetto SEC Documents or as is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on TriZetto:
(1) TriZetto and each of the TriZetto
Subsidiaries have prepared in good faith and duly and timely filed (taking into
account any extension of time within which to file) with the appropriate
governmental agencies all Returns and all such filed Returns are complete and
accurate in all material respects;
(2) TriZetto and each of the TriZetto
Subsidiaries have timely paid all Taxes that are shown as due on such filed
Returns or that TriZetto or any of the TriZetto Subsidiaries is obligated to
withhold from amounts owing to any employee, creditor or third party, except
with respect to matters contested in good faith;
(3) as of the date hereof, there are not
pending or, to the actual knowledge of the executive officers of TriZetto or any
of the TriZetto Subsidiaries, threatened in writing, any audits, examinations,
investigations or other proceedings in respect of Taxes or Tax matters;
(4) neither TriZetto nor any of the TriZetto
Subsidiaries is or may be liable for the Taxes of any Person (other than Persons
who at the Effective Time are members of the affiliated group of corporations of
which TriZetto is the common parent) pursuant to Section 1502 of the Code, by
agreement or otherwise; and
(5) neither TriZetto nor any of the TriZetto
Subsidiaries has any liability with respect to material income, franchise or
similar Taxes in excess of the amounts accrued in respect thereof that are
reflected in the financial statements included in the TriZetto SEC Documents
other than any liability for unpaid Taxes that may have properly accrued since
the TriZetto Balance Sheet Date in connection with the operation of the business
of TriZetto or any of the TriZetto Subsidiaries in the ordinary course.
(b) No payments to be made to any of the officers and
employees of TriZetto or any of the TriZetto Subsidiaries will as a result of
consummation of the Merger be subject to the deduction limitations under Section
280G of the Code.
3.14 Intellectual Property.
(a) TriZetto and the TriZetto Subsidiaries own or
have the right to use all material Intellectual Property Rights necessary or
required for the operation of the business of TriZetto as currently conducted or
to products or services currently under development by TriZetto and the TriZetto
Subsidiaries (collectively, "TriZetto IP Rights"), and have the right to use,
license, sublicense or assign the same without material liability to, or any
requirement of consent from, any other Person or party. The TriZetto IP Rights
constitute all Intellectual Property Rights necessary for the conduct of their
businesses in the manner conducted immediately prior to the Closing. All
TriZetto IP Rights are either owned by TriZetto and the TriZetto Subsidiaries
free and clear of all liens and encumbrances or are used pursuant to a license
agreement; each such license agreement is valid and enforceable and in full
force and effect; neither TriZetto nor any TriZetto Subsidiary is in material
default thereunder; and to the knowledge of TriZetto, no corresponding licensor
is in material default thereunder. None of the TriZetto IP Rights infringes or
otherwise conflicts with any
28
Intellectual Property Rights or other right of any Person; there is no pending
or, to the knowledge of TriZetto, threatened (in writing) litigation,
adversarial proceeding, administrative action or other challenge or claim
relating to any TriZetto IP Rights; there is no outstanding order relating to
any TriZetto IP Rights; to the knowledge of TriZetto, there is currently no
infringement by any Person of any TriZetto IP Rights; and the TriZetto IP Rights
owned, used or possessed by TriZetto and the TriZetto Subsidiaries is sufficient
and adequate to conduct the business of TriZetto and the TriZetto Subsidiaries
to the full extent as such business is currently conducted.
(b) TriZetto and the TriZetto Subsidiaries have taken
reasonable steps to protect, maintain and safeguard its respective TriZetto IP
Rights, including any TriZetto IP Rights for which improper or unauthorized
disclosure would impair its value or validity materially, and has executed and
required appropriate nondisclosure agreements and made appropriate filings and
registrations in connection with the foregoing.
(c) A true and complete list of all material Software
owned by TriZetto and the TriZetto Subsidiaries has heretofore been made
available to IMS. All of the Software owned by TriZetto and the TriZetto
Subsidiaries is Year 2000 Compliant. A true and complete list of all material
third party Software used by TriZetto and the TriZetto Subsidiaries has
heretofore been made available to IMS. To the knowledge of TriZetto, all
material third party Software currently used by TriZetto and the TriZetto
Subsidiaries is Year 2000 Compliant.
(d) A true and complete list of all material
Databases owned by TriZetto and the TriZetto Subsidiaries has heretofore been
made available to IMS. All of the Databases owned by TriZetto and the TriZetto
Subsidiaries are Year 2000 Compliant. A true and complete list of all material
third party Databases used by TriZetto and the TriZetto Subsidiaries has
heretofore been made available to IMS. To the knowledge of TriZetto, all
material third party Databases currently used by TriZetto and the TriZetto
Subsidiaries are Year 2000 Compliant.
(e) No material confidential or trade secret
information of TriZetto or any TriZetto Subsidiary has been provided to any
Person except subject to written confidentiality agreements, except for any such
disclosure which has not resulted and is not reasonably likely to result in a
Material Adverse Effect on TriZetto.
(f) TriZetto and the TriZetto Subsidiaries have valid
copyrights in all material copyrightable material whether or not registered with
the U.S. copyright office, including all copyrights in the TriZetto Products (as
defined herein) containing material copyrightable material. Consummation of the
transactions contemplated hereby will not alter or impair the validity of any
copyrights or copyright registrations.
(g) (A) No third party (including any original
equipment manufacturer or site license customer) has any right to manufacture,
reproduce, distribute, sell, sublicense, market or exploit any of the products
or services offered by TriZetto (the "TRIZETTO PRODUCTS") or any adaptations,
translations, or derivative works based on the TriZetto Products, or any portion
thereof; (B) Neither TriZetto nor any TriZetto Subsidiary has granted to any
third party any exclusive rights of any kind with respect to any of the TriZetto
Products, including territorial exclusivity or exclusivity with respect to
particular versions, implementations or translations of any of the TriZetto
Products; and (C) Neither TriZetto nor any TriZetto Subsidiary has granted any
third party any right to market any product utilizing any TriZetto Product under
any "private label" arrangements pursuant to which TriZetto or any TriZetto
Subsidiary is not identified as the source of such goods. Each
29
document or instrument identified pursuant to this Section is listed in Section
3.14 of the TriZetto Disclosure Letter and true and correct copies of such
documents or instruments have been furnished to IMS. No third party has any
right to manufacture, reproduce, distribute, sublicense, market or exploit any
works or materials of which any of the TriZetto Products are a derivative work.
(h) Except as is not reasonably likely to have a
Material Adverse Effect on TriZetto, each of the TriZetto Products: (A)
substantially complies with all specifications set forth therefor in any
contract, agreement, advertisement or other promotional material for such
products and with all other warranty requirements, other than bugs or fixes
required or expected in the ordinary course of business and not otherwise
material to TriZetto's business; and (B) can be recreated from its associated
source code and related documentation by reasonably experienced technical
personnel without undue burden.
(i) To the knowledge of TriZetto, no employee of
TriZetto or any TriZetto Subsidiary is in violation of any term of any
employment contract, patent disclosure agreement or any other contract or
agreement relating to the relationship of any such employee with TriZetto or any
other party because of the nature of the business conducted by TriZetto or
proposed to be conducted by TriZetto.
(j) If TriZetto or any TriZetto Subsidiary is
obligated to repair or replace products or services previously provided by
TriZetto or any TriZetto Subsidiary that are not Year 2000 Compliant in order to
meet TriZetto's or any TriZetto Subsidiary's contractual obligations, to avoid
personal injury or other liability, to avoid misrepresentation claims, or to
satisfy any other obligations or requirements, to the knowledge of TriZetto,
TriZetto and the TriZetto Subsidiaries have repaired or replaced those products
and services to make them Year 2000 Compliant in all material respects.
(k) All of the Software owned or used by TriZetto
complies in all material respects with the currently known and relevant
provisions of the Health Insurance Portability and Accountability Act of 1996,
as amended.
3.15 Fees and Expenses. Neither TriZetto nor any of the
TriZetto Subsidiaries has paid or become obligated to pay any fee or commission
to any broker, finder or intermediary in connection with the transactions
contemplated by this Agreement.
3.16 Environmental Matters.
(a) TriZetto and each TriZetto Subsidiary, including
all of their businesses and operations, are, and have been, operated in
compliance with all Environmental Laws, except where the failure to so comply
has not had, and is not reasonably likely to have, a Material Adverse Effect on
TriZetto.
(b) To the knowledge of TriZetto, there are no
conditions on, about, beneath or arising from any real property which is now
owned, used or leased to or by TriZetto or any TriZetto Subsidiary ("TRIZETTO
CURRENT REAL PROPERTY") which might, under any Environmental Law, (i) give rise
to any material cost, obligation, liability or the imposition of a statutory
lien, or (ii) which would or may require any response, removal or remedial
action or any other action, including without limitation reporting,
investigation, monitoring, cleanup or
30
contribution or which would require a material expenditure or commitment by
TriZetto or any TriZetto Subsidiary.
(c) To the knowledge of TriZetto, there were no
conditions on, about, beneath or arising from any real property which was, but
is no longer, owned, used or leased to or by TriZetto or any TriZetto Subsidiary
("TriZetto Former Real Property"), during the period of such ownership, use or
lease, which might, under any Environmental Law, (i) give rise to any material
cost, obligation, liability or the imposition of a statutory lien, or (ii) which
would or may require any response, removal or remedial action or any other
action, including without limitation reporting, investigation, monitoring,
cleanup or contribution or which would require a material expenditure or
commitment by TriZetto or any TriZetto Subsidiary.
(d) Neither TriZetto nor any TriZetto Subsidiary has
received any notification of a release or threat of a release of a Hazardous
Substance with respect to any TriZetto Current Real Property or TriZetto Former
Real Property.
(e) No Hazardous Substances have been used, handled,
generated, processed, treated, stored, transported to or from, released,
discharged or disposed of by TriZetto, any TriZetto Subsidiary or, to TriZetto's
knowledge, any third party on, about or beneath any TriZetto Current Real
Property in a manner which could reasonably be expected to result in any
material liability under any Environmental Law.
(f) During TriZetto's or any TriZetto Subsidiary's
ownership, use or lease of the TriZetto Former Real Property, no Hazardous
Substances were used, handled, generated, processed, treated, stored,
transported to or from, released, discharged or disposed of by TriZetto, any
TriZetto Subsidiary or, to TriZetto's knowledge, any third party on, about or
beneath the TriZetto Former Real Property in a manner which could reasonably be
expected to result in any material liability under any Environmental Law.
(g) To the knowledge of TriZetto, there are no above
or underground storage tanks, asbestos containing materials, or transformers
containing or contaminated with PCB's on, about or beneath the TriZetto Current
Real Property. During TriZetto's or any TriZetto Subsidiary's ownership, use or
lease of the TriZetto Former Real Property, there were no above or underground
storage tanks, asbestos containing materials, or transformers containing or
contaminated with PCB's on, about or beneath the TriZetto Former Real Property.
(h) Except as is not reasonably likely to have a
Material Adverse Effect on TriZetto, neither TriZetto nor any TriZetto
Subsidiary has received notice or has knowledge of:
(1) any claim, demand, investigation,
enforcement action, response, removal, remedial action, statutory lien or other
governmental or regulatory action instituted or threatened against TriZetto or
any TriZetto Subsidiary or the TriZetto Current Real Property or TriZetto Former
Real Property pursuant to any Environmental Law;
(2) any claim, demand notice, suit or
action, made or threatened by any Person against TriZetto, any TriZetto
Subsidiary, the TriZetto Current Real Property or the TriZetto Former Real
Property relating to (A) any form of damage, loss or injury resulting from or
claimed to result from, any Hazardous Substance on, about, beneath or arising
from the TriZetto
31
Current Real Property or TriZetto Former Real Property or (B) any alleged
violation of any Environmental Law by TriZetto or any TriZetto Subsidiary; or
(3) any communication to or from any
governmental authority arising out of or in connection with Hazardous Substances
on, about, beneath, arising from or generated at the TriZetto Current Real
Property or TriZetto Former Real Property, including without limitation, any
notice of violation, citation, complaint, order, directive, request for
information or response thereto, notice letter, demand letter or compliance
schedule.
(i) No wastes generated by TriZetto or any TriZetto
Subsidiary have ever been directly or indirectly sent, transferred, transported
to, treated, stored or disposed of at any site listed or formally proposed for
listing on the National Priority List promulgated pursuant to CERCLA or to any
site listed on any state list of sites requiring or recommended for
investigation or clean-up. None of the TriZetto Current Real Property or
TriZetto Former Real Property is listed on the National Priorities List or any
state list of sites requiring or recommended for investigation or clean up.
(j) all environmental reports, studies, assessments,
sampling data, permits, filings, regulatory correspondence, claims and other
environmental information relating to TriZetto or any TriZetto Subsidiary or any
of their current or former properties or operations have been provided to IMS.
3.17 Interested Party Transactions. Except as disclosed in the
TriZetto SEC Documents filed prior to the date of this Agreement, no officer or
director of TriZetto or any "affiliate" or "associate" (as those terms are
defined in Rule 405 promulgated under the Securities Act) of any such person has
had, either directly or indirectly, a material interest in: (i) any Person which
purchases from or sells, licenses or furnishes to TriZetto or any of the
TriZetto Subsidiaries any material amount of goods, property, technology or
intellectual or other property rights or services; or (ii) any material contract
or agreement to which TriZetto or any of the TriZetto Subsidiaries is a party or
by which it may be bound or affected.
3.18 Board Approval. The Board of Directors of TriZetto has,
as of the date hereof, unanimously (i) approved this Agreement and the Merger,
(ii) determined that the Merger is in the best interests of the stockholders of
TriZetto and is on terms that are fair to such stockholders and (iii)
recommended that the stockholders of TriZetto approve the TriZetto Proposals.
3.19 Vote Required. The affirmative vote of a majority of the
votes that holders of the outstanding shares of TriZetto Common Stock are
entitled to cast is the only vote of the holders of any class or series of
TriZetto capital stock necessary to approve this Agreement and the TriZetto
Proposals.
3.20 Opinion of Financial Advisor. TriZetto's Board of
Directors has received an opinion, dated the date of this Agreement, from
Warburg Dillon Read LLC to the effect that, as of such date, the Exchange Ratio
is fair to TriZetto from a financial point of view.
3.21 Restrictions on Business Activities. There is no material
agreement, judgment, injunction, order or decree binding upon TriZetto or any of
its subsidiaries that has or could reasonably be expected to have the effect of
prohibiting or materially impairing the conduct of
32
business by TriZetto or any of its subsidiaries as currently conducted or any
acquisition of property by TriZetto or any of its subsidiaries.
3.22 Takeover Statutes. No Takeover Statute or any
anti-takeover provision in TriZetto's certificate of incorporation or bylaws is
applicable to TriZetto, the TriZetto Common Stock, the Merger or the other
transactions contemplated by this Agreement or the TriZetto Voting Agreements.
4. IMS Covenants.
4.1 ADVICE OF CHANGES. During the period from the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement in accordance with its terms, IMS will promptly advise TriZetto in
writing (a) of any event occurring subsequent to the date of this Agreement that
would render any representation or warranty of IMS contained in this Agreement,
if made on or as of the date of such event or the Closing Date, untrue or
inaccurate in any material respect, (b) of any Material Adverse Effect on IMS
and (c) of any breach by IMS of any covenant or agreement contained in this
Agreement.
4.2 Maintenance of Business. During the period from the date
of this Agreement until the earlier of the Effective Time or the termination of
this Agreement in accordance with its terms, IMS will use its reasonable best
efforts to carry on and to preserve its business and its relationships with
customers, suppliers, employees and others in substantially the same manner as
it has prior to the date hereof. If IMS becomes aware of any material
deterioration in the relationship with any material customer, material supplier
or key employee, it will promptly bring such information to the attention of
TriZetto in writing and, if requested by TriZetto, will exert its reasonable
best efforts to restore the relationship.
4.3 Conduct of Business. During the period from the date of
this Agreement until the earlier of the Effective Time or the termination of
this Agreement in accordance with its terms, IMS will continue to conduct its
business and maintain its business relationships in the ordinary and usual
course and will not, without the prior written consent of TriZetto unless
expressly contemplated by this Agreement:
(a) borrow any money except for amounts that are not
in the aggregate material to the financial condition of IMS and the IMS
Subsidiaries, taken as a whole;
(b) enter into any material transaction not in the
ordinary course of its business consistent with past practice;
(c) materially encumber or permit to be materially
encumbered any of its assets except in the ordinary course of its business;
(d) make a material disposition of assets except in
the ordinary course of business consistent with past practice;
(e) enter into any material lease or contract for the
purchase or sale or license of any property, real or personal, except in the
ordinary course of business consistent with past practice;
33
(f) fail to maintain its equipment and other assets
in good working condition and repair according in all material respects to the
standards it has maintained to the date of this Agreement, subject only to
ordinary wear and tear;
(g) pay (or make any oral or written commitments or
representations to pay) any bonus, increased salary or special remuneration to
any officer, employee or consultant (except for normal salary increases
consistent with past practices not to exceed ten percent (10%) per year pursuant
to existing arrangements previously disclosed to TriZetto) or enter into or vary
the terms of any employment, consulting or severance agreement with any such
person, pay any severance or termination pay (other than payments made in
accordance with plans or agreements existing on the date hereof), grant any
stock option (except for normal grants to newly hired or current employees
consistent with past practices) or issue any restricted stock, or enter into or
modify any agreement or plan or increase benefits of the type described in
Section 2.8, other than such incentive awards, bonus payments and retention
programs as may be reasonably necessary in order for IMS to conduct its business
and administer corporate affairs in the ordinary course consistent with past
practice and to consummate the Merger;
(h) make any material change in accounting practices,
except for any such change required by reason of a concurrent change in GAAP;
(i) declare, set aside or pay any cash or stock
dividend or other distribution in respect of capital stock, or redeem or
otherwise acquire any of its capital stock, other than regular quarterly
dividends on the IMS Common Stock and IMS's ongoing common stock repurchase
program;
(j) merge, consolidate or reorganize with, or acquire
any entity in one or more transactions (other than such transaction that would
not be material and that would not impair or affect the timing of the Merger);
(k) amend its Certificate of Incorporation or Bylaws;
(l) license any IMS IP Rights except in the ordinary
course of business consistent with past practice; or
(m) agree to do, or permit any IMS Subsidiary to do
or agree to do, or enter into negotiations with respect to, any of the things
described in the preceding clauses in this Section 4.3.
4.4 Stockholder Meeting. IMS will convene the IMS Stockholders
Meeting to be held within forty-five (45) days after the Form S-4 shall have
been declared effective by the SEC to submit this Agreement and related matters
for the consideration and adoption by the IMS Stockholders. Such adoption shall
be recommended by IMS's Board of Directors unless in the good faith judgment of
IMS's Board of Directors, after consultation with outside counsel, taking such
action would be inconsistent with its fiduciary obligations under applicable
law. Such meeting will be convened, held and conducted, and any proxies will be
solicited, in compliance with applicable securities laws. IMS agrees that its
obligations to convene, hold and conduct the IMS Stockholders Meeting shall not
be affected by the withdrawal or modification by the IMS Board of Directors, in
accordance with this Section 4.4, of its recommendation to the IMS stockholders
that such
34
Stockholders adopt this Agreement. Contemporaneously with the execution and
delivery of this Agreement, IMS will cause the IMS Designated Stockholders to
execute the IMS Voting Agreement.
4.5 Prospectus/Proxy Statement. IMS will mail to its
stockholders in a timely manner, for the purpose of considering and voting upon
the adoption of this Agreement at the IMS Stockholders Meeting, the
Prospectus/Proxy Statement in the Form S-4. IMS will promptly provide all
information relating to its business or operations necessary for inclusion in
the Prospectus/Proxy Statement to satisfy all requirements of applicable state
and federal securities laws. IMS shall be solely responsible for any statement,
information or omission in the Prospectus/Proxy Statement relating to it or its
affiliates based upon written information furnished by it. IMS will not provide
or publish to its stockholders any material concerning it or its affiliates that
violates the Securities Act or the Exchange Act with respect to the transactions
contemplated hereby.
4.6 Regulatory Approvals. IMS will promptly execute and file,
or join in the execution and filing, of any application or other document that
may be necessary in order to obtain the authorization, approval or consent of
any governmental body, federal, state, local or foreign, which may be reasonably
required, or which TriZetto may reasonably request, in connection with the
consummation of the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, as promptly as practicable after the
execution of this Agreement, IMS shall file with the Federal Trade Commission
(the "FTC") and the Antitrust Division of the Department of Justice (the "DOJ"),
a pre-merger notification report under the HSR Act. Subject to the proviso
contained in Section 4.7, IMS will use its reasonable best efforts to promptly
obtain all such authorizations, approvals and consents.
4.7 Necessary Consents. During the term of this Agreement, IMS
will use its reasonable best efforts to obtain such written consents and take
such other actions as may be necessary or appropriate in addition to those set
forth in Section 4.6 to allow the consummation of the transactions contemplated
hereby; PROVIDED, HOWEVER, that nothing in this Section 4.7 shall require, or be
construed to require, IMS to proffer to, or agree to, sell or hold separate and
agree to sell, before or after the Effective Time, any assets, businesses, or
interest in any assets or businesses of IMS or any of its affiliates (or to
consent to any sale, or agreement to sell, by TriZetto of any of its assets or
businesses) or to agree to any material changes or restriction in the operations
of any such assets or businesses.
4.8 Access to Information. IMS will allow TriZetto and its
agents reasonable access to the files, books, records and offices of IMS and
each IMS Subsidiary, including, without limitation, any and all information
relating to IMS's taxes, commitments, contracts, leases, licenses and real,
personal and intangible property and financial condition. IMS will cause its
accountants to cooperate with TriZetto and its agents in making available to
TriZetto all financial information reasonably requested, including, without
limitation, the right to examine all working papers pertaining to all tax
returns and financial statements prepared or audited by such accountants. All
such information shall be governed by the terms of the confidentiality agreement
between IMS and TriZetto (the "CONFIDENTIALITY AGREEMENT").
4.9 Satisfaction of Conditions Precedent. During the term of
this Agreement, IMS will use its reasonable best efforts to satisfy or cause to
be satisfied all the conditions precedent that are set forth in Section 8, and
IMS will use its reasonable best efforts to cause the Merger and the other
transactions contemplated by this Agreement to be consummated.
35
4.10 IMS Corporate Headquarters. As soon as practicable
following the Closing Date, IMS agrees that the corporate headquarters and
executive offices of IMS shall be relocated to Newport Beach, California.
4.11 IMS Options. Prior to the IMS Stockholders' Meeting, the
Board of Directors of IMS shall take all such actions as are necessary in order
to ensure that the vesting of all IMS Options will not accelerate as a result of
the Merger or the related transactions contemplated hereby.
4.12 No Other Negotiations. Upon execution of this Agreement,
IMS does not have, or shall immediately terminate any discussions with, any
third party concerning an Alternative Acquisition (as defined below). From and
after the date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement in accordance with its terms, IMS shall not,
directly or indirectly, (a) solicit, engage in discussions or negotiate with any
Person (whether such discussions or negotiations are initiated by IMS or
otherwise) or take any other action intended or designed to facilitate the
efforts of any Person, other than TriZetto, relating to the possible acquisition
of IMS and its subsidiaries (whether by way of merger, purchase of capital
stock, purchase of assets or otherwise) or any material portion of their capital
stock or assets (with any such efforts by any such Person, including a firm
proposal to make such an acquisition, to be referred to as an "ALTERNATIVE
ACQUISITION"), (b) provide information with respect to IMS or any of its
subsidiaries to any Person, other than TriZetto, relating to a possible
Alternative Acquisition by any Person, other than TriZetto, (c) enter into an
agreement with any Person, other than TriZetto, providing for a possible
Alternative Acquisition, or (d) make or authorize any statement, recommendation
or solicitation in support of any possible Alternative Acquisition by any
Person, other than by TriZetto.
Notwithstanding the foregoing, the restrictions set forth in
this Agreement shall not prevent the Board of Directors of IMS (or its agents
pursuant to its instructions) from taking any of the following actions: (a)
complying with Rule 14e-2 promulgated under the Exchange Act or (b) (i)
furnishing information concerning IMS and its business, properties and assets to
any third party or (ii) engaging in discussions and negotiating with such third
party concerning an Alternative Acquisition, provided that all of the following
events shall have occurred: (1) such third party has made a written proposal to
the Board of Directors of IMS (which proposal may be conditional) to consummate
an Alternative Acquisition which proposal identifies a price or range of values
to be paid for the outstanding securities or substantially all of the assets of
IMS, and if consummated, based on the advice of IMS's financial advisors, the
Board of Directors of IMS has determined is financially more favorable to the
stockholders of IMS than the terms of the Merger (a "SUPERIOR PROPOSAL"); (2)
IMS's Board of Directors has determined, based on the advice of its financial
advisors, that such third party is financially capable of consummating such
Superior Proposal; (3) the Board of Directors of IMS shall have determined,
after consultation with its outside legal counsel, that the failure to furnish
information to or engage in discussions or negotiations with such third party
would be inconsistent with its fiduciary obligations under applicable law; and
(4) TriZetto shall have been notified in writing of such Acquisition Proposal,
including all of its terms and conditions, and shall have been given copies of
such proposal. Notwithstanding the foregoing, IMS shall not provide any
non-public information to such third party unless (1) it has prior to the date
thereof provided such information to TriZetto or TriZetto's representatives; and
(2) IMS provides such non-public information pursuant to a nondisclosure
agreement with terms which are at least as restrictive as the Confidentiality
Agreement.
36
In addition to the foregoing, IMS shall not enter into any
agreement concerning an Alternative Acquisition for a period of not less than 48
hours after TriZetto's receipt of a copy of such proposal of an Alternative
Acquisition. Upon compliance with the foregoing, IMS shall be entitled to (1)
change its recommendation concerning the Merger and (2) enter into an agreement
with such third party concerning an Alternative Acquisition.
If IMS or any of its subsidiaries receives any unsolicited
offer, inquiry or proposal to enter into discussions or negotiations relating to
an Alternative Acquisition, IMS shall immediately notify TriZetto thereof,
including information as to the identity of the party making any such offer,
inquiry or proposal and the specific terms of such offer, inquiry or proposal,
as the case may be.
IMS shall be entitled to provide copies of this Section 4.12
to third parties who on an entirely unsolicited basis after the date hereof,
contact IMS concerning an Alternative Acquisition; provided that TriZetto shall
concurrently be notified of such contact and the delivery of such copy.
4.13 Rights. Prior to the Effective Time, the Board of
Directors of IMS shall take all necessary action to terminate or redeem all of
the outstanding Rights, effective immediately prior to the Effective Time.
5. TriZetto Covenants.
5.1 Advice of Changes. During the period from the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement in accordance with its terms, TriZetto will promptly advise IMS in
writing (a) of any event occurring subsequent to the date of this Agreement that
would render any representation or warranty of TriZetto contained in this
Agreement, if made on or as of the date of such event or the Closing Date,
untrue or inaccurate in any material respect, (b) of any Material Adverse Effect
on TriZetto and (c) of any breach by TriZetto of any covenant or agreement
contained in this Agreement.
5.2 Maintenance of Business. During the period from the date
of this Agreement until the earlier of the Effective Time or the termination of
this Agreement in accordance with its terms, TriZetto will use its reasonable
best efforts to carry on and to preserve its business and its relationships with
customers, suppliers, employees and others in substantially the same manner as
it has prior to the date hereof. If TriZetto becomes aware of any material
deterioration in the relationship with any material customer, material supplier
or key employee, it will promptly bring such information to the attention of IMS
in writing and, if requested by IMS, will exert its reasonable best efforts to
restore the relationship.
5.3 Conduct of Business. During the period from the date of
this Agreement until the earlier of the Effective Time or the termination of
this Agreement in accordance with its terms, TriZetto will continue to conduct
its business and maintain its business relationships in the ordinary and usual
course and will not, without the prior written consent of IMS unless expressly
contemplated by this Agreement:
(a) borrow any money except for amounts that are not
in the aggregate material to the financial condition of TriZetto and the
TriZetto Subsidiaries, taken as a whole;
(b) enter into any material transaction not in the
ordinary course of its business consistent with past practice;
37
(c) materially encumber or permit to be materially
encumbered any of its assets except in the ordinary course of its business;
(d) make a material disposition of assets except in
the ordinary course of business consistent with past practice;
(e) enter into any material lease or contract for the
purchase or sale or license of any property, real or personal, except in the
ordinary course of business consistent with past practice;
(f) fail to maintain its equipment and other assets
in good working condition and repair according in all material respects to the
standards it has maintained to the date of this Agreement, subject only to
ordinary wear and tear;
(g) pay (or make any oral or written commitments or
representations to pay) any bonus, increased salary or special remuneration to
any officer, employee or consultant (except for normal salary increases
consistent with past practices not to exceed ten percent (10%) per year and
except pursuant to existing arrangements previously disclosed in writing to IMS)
or enter into or amend the terms of any employment, consulting or severance
agreement with any such person, pay any severance or termination pay (other than
payments made in accordance with plans or agreements existing on the date
hereof), grant any stock option (except for normal grants to newly hired or
current employees consistent with past practices) or issue any restricted stock,
or enter into or modify any agreement or plan of the type described in Section
3.8;
(h) make any material change in accounting practices,
except for any such change required by reason of a concurrent change in GAAP;
(i) declare, set aside or pay any cash or stock
dividend or other distribution in respect of capital stock or redeem or
otherwise acquire any of its capital stock;
(j) amend or terminate any material contract,
agreement or license to which it is a party except those amended or terminated
in the ordinary course of its business consistent with past practice, or which
are not material in amount or effect;
(k) lend any amount to any Person, other than (i)
advances for travel and expenses which are incurred in the ordinary course of
business consistent with past practice, not material in amount and documented by
receipts for the claimed amounts, or (ii) any loans pursuant to any TriZetto
Section 401(a) Plan;
(l) guarantee or act as a surety for any obligation
except for obligations in amounts that are not material to TriZetto and the
TriZetto Subsidiaries, taken as a whole;
(m) issue, pledge or sell, dispose of or encumber any
shares of its capital stock of any class (except upon the exercise of a bona
fide option or warrant currently outstanding or permitted to be granted by
Section 5.3(g)), or any other of its or its subsidiaries' securities, or issue
or create any warrants, obligations, subscriptions, options (except as expressly
permitted by Section 5.3(g)), convertible securities or other commitments to
issue shares of capital stock, or accelerate the vesting of any outstanding
option or other security;
38
(n) merge, consolidate or reorganize with, or acquire
any entity (other than such transaction that would not be material and that
would not impair or affect the timing of the Merger);
(o) amend its Certificate of Incorporation or Bylaws;
(p) license any TriZetto IP Rights except in the
ordinary course of business consistent with past practice; or
(q) agree to do, or permit any TriZetto Subsidiary to
do or agree to do, or enter into negotiations with respect to, any of the things
described in the preceding clauses in this Section 5.3.
5.4 Stockholder Meeting. TriZetto will convene the TriZetto
Stockholders Meeting to be held within forty-five (45) days after the Form S-4
shall have been declared effective by the SEC to submit the following matters
(collectively, the "TRIZETTO PROPOSALS") for the consideration, adoption and
approval of the TriZetto Stockholders: (i) this Agreement, (ii) the issuance of
TriZetto Common Stock in connection with the Merger, (iii) the TriZetto Charter
Amendment and (iv) a new TriZetto stock option plan, in such form and with such
number of available options issuable thereunder as shall be agreed upon by the
parties prior to the initial filing of the Prospectus/Proxy Statement with the
SEC. Such approval shall be recommended by TriZetto's Board of Directors unless
in the good faith judgment of TriZetto's Board of Directors, after consultation
with outside counsel, taking such action would be inconsistent with its
fiduciary obligations under applicable law. Such meeting will be convened, held
and conducted, and any proxies will be solicited, in compliance with applicable
securities law. TriZetto agrees that its obligations to convene, hold and
conduct the TriZetto Stockholders Meeting shall not be affected by the
withdrawal or modification by the TriZetto's Board of Directors, in accordance
with this Section 5.4, of its recommendation to the TriZetto Stockholders that
such Stockholders approve the TriZetto Proposals. Contemporaneously with the
execution and delivery of this Agreement, TriZetto will cause the TriZetto
Designated Stockholders to execute the TriZetto Voting Agreements.
5.5 Prospectus/Proxy Statement. TriZetto will mail to its
stockholders in a timely manner, for the purpose of considering and voting upon
the TriZetto Proposals at the TriZetto Stockholders Meeting, the
Prospectus/Proxy Statement in the Form S-4. TriZetto will promptly provide all
information relating to its business or operations necessary for inclusion in
the Prospectus/Proxy Statement to satisfy all requirements of applicable state
and federal securities laws. TriZetto shall be solely responsible for any
statement, information or omission in the Prospectus/Proxy Statement relating to
it or its affiliates based upon written information furnished by it. TriZetto
will not provide or publish to its stockholders any material concerning it or
its affiliates that violates the Securities Act or the Exchange Act with respect
to the transactions contemplated hereby.
5.6 Regulatory Approvals. TriZetto will promptly execute and
file, or join in the execution and filing, of any application or other document
that may be necessary in order to obtain the authorization, approval or consent
of any governmental body, federal, state, local or foreign which may be
reasonably required, or which IMS may reasonably request, in connection with the
consummation of the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, as promptly as practicable after the
execution of this Agreement, TriZetto shall file with the FTC and the DOJ a
pre-merger notification report under the HSR Act. Subject to
39
the proviso contained in Section 5.7, TriZetto will use its reasonable best
efforts to promptly obtain all such authorizations, approvals and consents.
5.7 Necessary Consents. During the term of this Agreement,
TriZetto will use its reasonable best efforts to obtain such written consents
and take such other actions as may be necessary or appropriate in addition to
those set forth in Section 5.6 to allow the consummation of the transactions
contemplated hereby; PROVIDED, HOWEVER, that nothing in this Section 5.7 shall
require, or be construed to require, IMS to proffer to, or agree to, sell or
hold separate and agree to sell, before or after the Effective Time, any assets,
businesses, or interest in any assets or businesses of IMS or any of its
affiliates (or to consent to any sale, or agreement to sell, by TriZetto of any
of its assets or businesses) or to agree to any material changes or restriction
in the operations of any such assets or businesses.
5.8 Access to Information. TriZetto will allow IMS and its
agents reasonable access to the files, books, records and offices of TriZetto
and each TriZetto Subsidiary, including, without limitation, any and all
information relating to TriZetto's taxes, commitments, contracts, leases,
licenses and real, personal and intangible property and financial condition.
TriZetto will cause its accountants to cooperate with IMS and its agents in
making available to IMS all financial information reasonably requested,
including, without limitation, the right to examine all working papers
pertaining to all tax returns and financial statements prepared or audited by
such accountants. All such information shall be governed by the terms of the
Confidentiality Agreement.
5.9 Satisfaction of Conditions Precedent. During the term of
this Agreement, TriZetto will use its reasonable best efforts to satisfy or to
cause to be satisfied all the conditions precedent that are set forth in Section
7, and TriZetto will use its reasonable best efforts to cause the Merger and the
other transactions contemplated by this Agreement to be consummated.
5.10 Listing. TriZetto will use its best efforts to cause the
shares of TriZetto Common Stock to be issued pursuant to the Merger to be
approved for quotation on the Nasdaq, subject to official notice of issuance,
prior to the Closing Date.
5.11 Nomination of Directors. The Board of Directors of
TriZetto shall take any and all such actions as may be necessary to cause (i)
Xxxxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx Xxxxxxxx and three other members of each
of the existing Boards of Directors of TriZetto and IMS to be appointed to the
Board of Directors of TriZetto and the Surviving Corporation at the Effective
Time, (ii) such individuals to be nominated as members of TriZetto's management
slate of directors at TriZetto's next annual meeting of stockholders and (iii)
the total number of members of the Boards of Directors of TriZetto and the
Surviving Corporation to be fixed at nine immediately following the Effective
Time. As of the Effective Time, Xxxxxxx Xxxxxxxx, Xxxxxxxx Xxxx and Xxxxxx
Xxxxxxxx shall be designated as Class III directors, three members of the
existing Board of Directors of TriZetto shall be designated as Class II
directors, and three members of the existing Board of Directors of IMS shall be
designated as Class I directors, with each such designee to be determined by
TriZetto and IMS, respectively, prior to the Effective Time.
5.12 Nomination of Officers. The Board of Directors of
TriZetto shall take such actions as may be necessary (including the securing, if
necessary, of applicable resignations) to cause the following persons to be
appointed to the following positions within TriZetto at the Effective Time: (a)
Chairman of the Board - Xxxxxx Xxxxxxxx; (b) Vice Chairman of the Board -
Xxxxxxx Xxxxxxxx; (c) Chief Executive Officer - Xxxxxxxx Xxxx; and (d) President
- Xxxxxxx Xxxxxxxx.
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5.13 TriZetto Charter Amendment. Subject to the approval of
the TriZetto stockholders, the Board of Directors of TriZetto shall take such
actions as may be necessary for the TriZetto Charter Amendment to be duly
authorized and approved.
5.14 TriZetto Options. Prior to the TriZetto Stockholders
Meeting, the Board of Directors of TriZetto (or the committee thereof appointed
to administer the TriZetto Plan) shall take all such actions as are necessary in
order to ensure that the vesting of all TriZetto Options will not accelerate as
a result of the Merger or the related transactions contemplated hereby.
5.15 Xxxxxxxx Agreement. During the period from the date
hereof until the Effective Time, TriZetto shall not waive any of its rights
under, or any obligation of Xxxxxxx Xxxxxxxx pursuant to, the letter agreement,
dated the date hereof, between TriZetto and Xxxxxxx Xxxxxxxx.
5.16 TriZetto Management. From and after the date hereof,
TriZetto shall use reasonable best efforts in order to cause the individuals
listed on Schedule 5.16 hereto to enter into letter agreements with TriZetto
substantially in the form of the letter agreement, dated the date hereof,
between TriZetto and Xxxxxxx Xxxxxxxx, referred to in Section 5.15.
6. Additional Agreements.
6.1 Registration on Form S-4. The TriZetto Common Stock to be
issued in the Merger shall be registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), on a Form S-4 registration statement (the "FORM
S-4"). As promptly as practicable after the date of this Agreement, TriZetto and
IMS shall prepare and file with the SEC the Form S-4, together with the
prospectus/joint proxy statement to be included therein (the "PROSPECTUS/PROXY
STATEMENT") and any other documents required by the Securities Act or the
Exchange Act in connection with the Merger. Each of TriZetto and IMS shall use
its reasonable best efforts to respond promptly to any comments of the SEC and
to have the Form S-4 declared effective under the Securities Act as promptly as
practicable after such filing and to cause the Prospectus/Proxy Statement to be
mailed to each company's stockholders at the earliest practicable time. Each
party shall promptly furnish to the other party all information concerning such
party and its stockholders as may be reasonably required in connection with any
action contemplated by this Section 6.1. The Prospectus/Proxy Statement and Form
S-4 shall comply in all material respects with all applicable requirements of
law. Each of TriZetto and IMS will notify the other promptly of the receipt of
any comments from the SEC or its staff and of any request by the SEC or its
staff for amendments or supplements to the Form S-4 or the Prospectus/Proxy
Statement or for additional information and will supply the other with copies of
all correspondence with the SEC or its staff with respect to the Form S-4 or the
Prospectus/Proxy Statement. Whenever any event occurs which should be set forth
in an amendment or supplement to the Form S-4 or the Prospectus/Proxy Statement,
TriZetto or IMS, as the case may be, shall promptly inform the other of such
occurrence and cooperate in filing with the SEC or its staff, and/or mailing to
stockholders of TriZetto and IMS, such amendment or supplement.
6.2 Indemnification.
(a) The Certificate of Incorporation of the Surviving
Corporation shall contain the provisions with respect to indemnification set
forth in the Certificate of Incorporation of IMS on the date of this Agreement,
which provisions shall not be amended, repealed or otherwise modified for a
period of six (6) years from the Effective Time in any manner that would
adversely
41
affect the rights thereunder of individuals who at the Effective Time were
directors, officers, employees or agents of IMS and TriZetto, unless such
modification is required by law.
(b) After the Effective Time, the Surviving
Corporation shall, to the fullest extent permitted under applicable law,
indemnify and hold harmless, each present and former director and officer of IMS
and TriZetto (collectively, the "Indemnified Parties") against any costs or
expenses (including attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to any action or omission occurring
prior to the Effective Time, or arising out of or pertaining to the transactions
contemplated by this Agreement. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) after the Effective Time, the Surviving Corporation shall pay the
reasonable fees and expenses of such counsel, promptly after statements therefor
are received and (ii) the Surviving Corporation will cooperate in the defense of
any such matter; provided, however, that the Surviving Corporation shall not be
liable for any settlement effected without its written consent (which consent
shall not be unreasonably withheld). The Indemnified Parties as a group may
retain only one law firm to represent them with respect to any single action
unless there is, under applicable standards of professional conduct, a conflict
on any significant issue between the positions of any two (2) or more
Indemnified Parties.
(c) For a period of six (6) years after the Effective
Time, the Surviving Corporation shall maintain in effect directors and officers
liability insurance covering those persons who are currently covered by IMS's or
TriZetto's directors and officers liability insurance policy on terms comparable
to those applicable to the then current directors and officers of TriZetto,
provided, that in no event shall the Surviving Corporation be required to expend
more than an amount per year equal to 200% of the current annual premium paid by
IMS or TriZetto, respectively, to maintain or procure such insurance coverage.
(d) After the Effective Time, the Surviving
Corporation will fulfill and honor in all respects the obligations of IMS and
TriZetto pursuant to indemnification agreements with IMS's or TriZetto's
respective officers, directors and key employees in existence at the Effective
Time. Such indemnification agreements have been made available to TriZetto and
IMS, as applicable.
(e) If the Surviving Corporation or any of its
successors or assigns (i) shall consolidate with or merge into any other
corporation or entity and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any individual, corporation or
other entity, then, and in each such case, proper provisions shall be made so
that the successors and assigns of the Surviving Corporation shall assume all of
the obligations set forth in this Section 6.2.
The provisions of this Section 6.2 are intended to be for the benefit
of, and shall be enforceable by, each of the Indemnified Parties, their heirs
and their representatives.
6.3 Tracking Stock. From and after the date hereof, TriZetto
and IMS shall take such actions as are necessary to cause the authorization and
distribution (the "TRACKING STOCK DISTRIBUTION"), immediately after the
Effective Time, to holders of record of TriZetto Common Stock immediately after
the Effective Time (including, for the avoidance of doubt, holders of IMS Common
Stock immediately prior to the Effective Time), of a new class of TriZetto
Common Stock
42
(the "TRACKING STOCK") which is intended to "track" the performance of certain
businesses (the "TRACKED BUSINESSES") of IMS. Such efforts shall include,
without limitation, (i) the preparation and filing with the SEC of a Form 10
(the "TRACKING STOCK FORM 10") with respect to the registration of the Tracking
Stock, and all requisite amendments or supplements thereto, (ii) the preparation
of a Certificate of Designations (the "CERTIFICATE OF DESIGNATIONS") setting
forth the powers, preferences and rights of the Tracking Stock, and the filing
of the Certificate of Designations with the Secretary of State of the State of
Delaware immediately after the Effective Time, (iii) taking appropriate steps in
order to cause the Tracking Stock to be approved for listing on the NYSE,
subject to official notice of issuance, (iv) the negotiation, execution and
delivery of a distribution agreement with a distribution agent mutually
acceptable to IMS and TriZetto and (v) the preparation, execution and delivery
of appropriate inter-company agreements. Each of the parties will promptly
provide all information relating to its business or operations necessary for
inclusion in the Tracking Stock Form 10 to satisfy all requirements of
applicable state and federal securities laws, and will promptly execute and
file, or join in the execution and filing, of any application or other document
that may be necessary in order to obtain the authorization, approval or consent
of any governmental body which may be reasonably required in connection with the
authorization and distribution of the Tracking Stock. The parties agree to
cooperate in the determination of the assets of IMS which will constitute the
Tracked Businesses; provided, that it is the intention of the parties that the
assets set forth on Schedule 6.3 will constitute part of the Tracked Businesses.
6.4 Comfort Letters. TriZetto and IMS each shall use its
reasonable best efforts to cause to be delivered to the other party and its
directors a letter of its independent auditors, dated (i) the date on which the
S-4 Registration Statement shall become effective and (ii) the Closing Date, and
addressed to the other party and its directors, in form and substance customary
for "comfort" letters delivered by independent public accountants in connection
with registration statements similar to the S-4 Registration Statement.
6.5 Takeover Statute. If any Takeover Statute is or may become
applicable to the Merger or the other transactions contemplated by this
Agreement or the Voting Agreements, each of TriZetto and IMS and its board of
directors shall grant such approvals and take such actions as are necessary so
that such transactions may be consummated as promptly as practicable on the
terms contemplated by this Agreement or by the Voting Agreements, as the case
may be, or by the Merger and otherwise act to eliminate or minimize the effects
of such statute or regulation on such transactions.
6.6 IMS Contribution Election. At any time after the date
hereof and prior to the Effective Time, IMS or any of its subsidiaries may elect
to contribute all or any portion of the assets of IMS and its subsidiaries to
any wholly-owned subsidiary of IMS, pursuant to an instrument of transfer in
form and substance reasonably satisfactory to TriZetto, and to cause such
wholly-owned subsidiary to assume any and all liabilities of IMS and its other
subsidiaries arising out of or relating to the ownership of such assets, whether
absolute, known, unknown, contingent or otherwise, pursuant to an instrument of
assumption in form and substance reasonably satisfactory to TriZetto.
6.7 Strategic Technology Business Distribution.
(a) Prior to the Effective Time, IMS shall (i) form a
new Delaware corporation that will be a direct or indirect wholly-owned
subsidiary of IMS ("STB CO."), (ii) contribute and transfer or cause to be
contributed and transferred to STB Co. all of the right, title and
43
interest of IMS and its other subsidiaries in and to any and all assets
primarily related to, or used or held for use primarily in connection with,
IMS's strategic technology business, as more particularly described on Schedule
6.7(a) hereto (the "STRATEGIC TECHNOLOGY BUSINESS"), whether tangible or
intangible and whether fixed, contingent or otherwise, pursuant to an instrument
of transfer in form and substance reasonably satisfactory to TriZetto, (iii)
cause STB Co. to assume any and all liabilities of IMS and its other
subsidiaries arising out of or relating to the ownership of such assets or the
operation of the Strategic Technology Business, whether absolute, known,
unknown, contingent or otherwise, pursuant to an instrument of assumption in
form and substance reasonably satisfactory to TriZetto and (iv) enter into one
or more agreements, in form and substance reasonably satisfactory to TriZetto,
pursuant to which IMS (and, upon consummation of the Merger, the Surviving
Corporation) will continue to provide certain services to STB Co. for a
transitional period of time after the Strategic Technology Business Distribution
(as defined below) at a price based on the fair market value of such services,
and certain other matters normally addressed in connection with corporate
spin-offs will be addressed in a reasonable and customary manner.
(b) From and after the date hereof, TriZetto and IMS
shall take such actions as are necessary to cause the distribution (the "STB
DISTRIBUTION"), immediately after the Effective Time, to holders of record of
TriZetto Common Stock immediately after the Effective Time (including, for the
avoidance of doubt, holders of IMS Common Stock immediately prior to the
Effective Time), of all of the shares of STB Co. (the "STB STOCK"). Such efforts
shall include, without limitation, (i) the actions to be taken pursuant to
Section 6.7(a), (ii) the preparation and filing with the SEC of a Form 10 (the
"STB FORM 10") with respect to the registration of the STB Stock, and all
requisite amendments or supplements thereto, (iii) taking appropriate steps in
order to cause the STB Stock to be approved for quotation on the Nasdaq or
listing on the NYSE, as shall be reasonably agreed by the parties, subject to
official notice of issuance, and (iv) the negotiation, execution and delivery of
a distribution agreement with a distribution agent mutually acceptable to IMS
and TriZetto. Each of the parties will promptly provide all information relating
to its business or operations necessary for inclusion in the STB Form 10 to
satisfy all requirements of applicable state and federal securities laws, and
will promptly execute and file, or join in the execution and filing, of any
application or other document that may be necessary in order to obtain the
authorization, approval or consent of any governmental body which may be
reasonably required in connection with the authorization and distribution of the
STB Stock.
6.8 Xxxxxxxx Employment Agreement. Prior to the Effective
Time, the parties shall use their respective reasonable best efforts to amend
the employment agreement between TriZetto and Xxxxxxx Xxxxxxxx in order to
conform such agreement to the form (but not the financial or other compensation
terms) of the employment agreement between IMS and Xxxxxxxx Xxxx.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF IMS.
The obligations of IMS hereunder are subject to the satisfaction or
waiver, on or before the Closing, of each of the following conditions:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of TriZetto set forth in Section 3 (as qualified
by the TriZetto Disclosure Letter) shall be true and accurate in every material
respect on and as of the date of this Agreement and on and as of the Closing
Date with the same force and effect as if they had been made at the Closing
except to the extent (i) any such representation or warranty expressly speaks as
of an earlier date or (ii) the failure
44
of such representations and warranties to be true and accurate in such respects
has not had and is not reasonably likely to have a Material Adverse Effect on
TriZetto, and IMS shall receive a certificate to such effect executed by
TriZetto's Chief Executive Officer and Chief Financial Officer.
7.2 COVENANTS. TriZetto shall have performed and complied in
all material respects with all of its covenants required to be performed by it
under this Agreement on or before the Closing, and IMS shall receive a
certificate to such effect signed by TriZetto's Chief Executive Officer and
Chief Financial Officer, except where any nonperformance or noncompliance would
not have a Material Adverse Effect on TriZetto. 7.3 ABSENCE OF MATERIAL ADVERSE
CHANGE. There shall not have been any material adverse change in the financial
condition, properties, assets, liabilities, businesses or results of operations
of TriZetto and the TriZetto Subsidiaries, taken as a whole, or in the ability
of TriZetto to consummate the Merger, other than any change that shall result
from general economic conditions or conditions generally affecting the industry
in which TriZetto conducts operations (a "TRIZETTO MATERIAL ADVERSE CHANGE").
7.4 COMPLIANCE WITH LAW. There shall be no order, decree or ruling by any
governmental agency or written threat thereof, or any statute, rule, regulation
or order enacted, entered, enforced or deemed applicable to the Merger, which
would prohibit or render illegal the transactions contemplated by this
Agreement. 7.5 GOVERNMENT CONSENTS. There shall have been obtained on or before
the Closing such material permits or authorizations, and there shall have been
taken such other action, as may be required to consummate the Merger by any
regulatory authority having jurisdiction over the parties and the actions herein
proposed to be taken, including but not limited to requirements under applicable
federal and state securities laws and the compliance with, and expiration of any
applicable waiting period under, the HSR Act. 7.6 FORM S-4. The Form S-4 shall
have become effective under the Securities Act and shall not be the subject of
any stop-order or proceedings seeking a stop-order and the Prospectus/Proxy
Statement shall not be subject to any proceedings commenced or threatened by the
SEC. 7.7 DOCUMENTS. IMS shall have received all written consents, assignments,
waivers, authorizations or other certificates reasonably deemed necessary by
IMS's legal counsel to provide for the continuation in full force and effect of
any and all material Contracts of TriZetto and the TriZetto subsidiaries and for
TriZetto to consummate the transactions contemplated hereby except when the
failure to receive such consents, etc. is not reasonably likely to have a
Material Adverse Effect on TriZetto.
7.8 STOCKHOLDER APPROVAL. This Agreement shall have been duly
adopted and approved by the IMS stockholders in accordance with the rules of the
NYSE, applicable law and IMS's Certificate of Incorporation and Bylaws.
7.9 TRIZETTO APPROVALS. This Agreement, the issuance of
TriZetto Common Stock in connection with the Merger and the TriZetto Charter
Amendment shall have been duly adopted and approved by the TriZetto stockholders
in accordance with the rules of the Nasdaq, applicable law and TriZetto's
Certificate of Incorporation and Bylaws.
45
7.10 NO LEGAL ACTION. No temporary restraining order,
preliminary injunction or permanent injunction or other order preventing the
consummation of the Merger shall have been issued by any Federal or state court
and remain in effect, nor shall any proceeding initiated by the U.S. Government
seeking any of the foregoing be pending.
7.11 ELECTION OF IMS DESIGNEES TO BOARD OF DIRECTORS OF
TRIZETTO. The Board of Directors of TriZetto shall have taken appropriate action
to cause the number of directors comprising the full Board of Directors of
TriZetto at the Effective Time to be nine persons, and that Xxxxxxxx Xxxx,
Xxxxxx Xxxxxxxx and three (3) other members of the Board of Directors of IMS be
added to the Board of Directors of TriZetto effective upon the Effective Time in
accordance with Section 5.11.
7.12 TRIZETTO CHARTER AMENDMENT. The Board of Directors of
TriZetto shall have duly authorized and approved the TriZetto Charter Amendment.
7.13 TAX OPINION. IMS shall have received the opinion of
Xxxxxxxx & Xxxxxxxx, counsel to IMS, dated the Closing Date, to the effect that
the Merger will be treated for United States federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code, and that each
of IMS and TriZetto will be a party to that reorganization within the meaning of
Section 368(b) of the Code, provided, that if Xxxxxxxx & Xxxxxxxx does not
render such opinion, this condition shall nonetheless be deemed satisfied if
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx renders such opinion to IMS; it being understood
that in rendering such opinion, such counsel shall be entitled to rely on, and
IMS and TriZetto agree to provide reasonable cooperation to provide, certain
customary representations and assumptions.
7.14 NASDAQ LISTING. The shares of TriZetto Common Stock
issuable to the IMS stockholders pursuant to this Agreement shall have been
approved for quotation on the Nasdaq, upon official notice of issuance.
7.15 TRACKING STOCK FORM 10. The Tracking Stock Form 10 shall
have become effective under the Exchange Act and shall not be the subject of any
stop-order or proceedings seeking a stop-order or subject to any proceedings
commenced or threatened by the SEC.
7.16 CERTIFICATE OF DESIGNATIONS. TriZetto and IMS shall have
reasonably agreed on the form of the Certificate of Designations.
7.17 NYSE LISTING. The shares of Tracking Stock to be
distributed in connection with the Tracking Stock Distribution shall have been
approved for listing on the NYSE, upon official notice of issuance.
7.18 STB FORM 10. The STB Form 10 shall have become effective
under the Exchange Act and shall not be the subject of any stop-order or
proceedings seeking a stop-order or subject to any proceedings commenced or
threatened by the SEC.
7.19 LISTING OF STB STOCK. The shares of STB Stock to be
distributed in connection with the STB Distribution shall have been approved for
quotation on the Nasdaq or listing on the NYSE, as shall be reasonably agreed by
the parties, upon official notice of issuance.
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF TRIZETTO.
The obligations of TriZetto hereunder are subject to the satisfaction
or waiver, on or before the Closing, of each of the following conditions:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of IMS set forth in Section 2 (as qualified by
the IMS Disclosure Letter) shall be true and accurate in every material respect
on and as of the date of this Agreement and on and as of the Closing Date with
the same force and effect as if they had been made at the Closing except to the
extent (i) any such representation or warranty expressly speaks as of an earlier
date or (ii) the failure of such representations and warranties to be true and
accurate in such respects is not reasonably likely to have a Material Adverse
Effect on IMS, and TriZetto shall receive a certificate to such effect executed
by IMS's Chief Executive Officer and Chief Financial Officer.
8.2 COVENANTS. IMS shall have performed and complied in all
material respects with all of its covenants required to be performed by it under
this Agreement on or before the Closing, and TriZetto shall receive a
certificate to such effect signed by IMS's Chief Executive Officer and Chief
Financial Officer, except where any nonperformance or noncompliance would not
have a Material Adverse Effect on IMS.
8.3 ABSENCE OF MATERIAL ADVERSE CHANGE. There shall not have
been any material adverse change in the financial condition, properties, assets,
liabilities, businesses or results of operations of IMS and the IMS
Subsidiaries, taken as a whole, or in the ability of IMS to consummate the
Merger, other than any change that shall result from general economic conditions
or conditions generally affecting the industry in which IMS conducts operations
(an "IMS MATERIAL ADVERSE CHANGE").
8.4 COMPLIANCE WITH LAW. There shall be no order, decree or
ruling by any governmental agency or written threat thereof, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which would prohibit or render illegal the transactions contemplated by
this Agreement.
8.5 GOVERNMENT CONSENTS. There shall have been obtained on or
before the Closing such material permits or authorizations, and there shall have
been taken such other action, as may be required to consummate the Merger by any
regulatory authority having jurisdiction over the parties and the actions herein
proposed to be taken, including but not limited to requirements under applicable
federal and state securities laws and the compliance with, and expiration of any
applicable waiting period under, the HSR Act.
8.6 FORM S-4. The Form S-4 shall have become effective under
the Securities Act and shall not be the subject of any stop-order or proceedings
seeking a stop-order and the Prospectus/Proxy Statement shall not be subject to
any proceedings commenced or threatened by the SEC.
8.7 DOCUMENTS. TriZetto shall have received all written
consents, assignments, waivers, authorizations or other certificates reasonably
deemed necessary by TriZetto's legal counsel to provide for the continuation in
full force and effect of any and all material Contracts of IMS and the IMS
subsidiaries and for IMS to consummate the transactions contemplated hereby
except when
47
the failure to receive such consents, etc. is not reasonably likely to have a
Material Adverse Effect on IMS.
8.8 STOCKHOLDER APPROVAL. This Agreement, the issuance of
TriZetto Common Stock in connection with the Merger and the TriZetto Charter
Amendment shall have been duly adopted and approved by the TriZetto stockholders
in accordance with the rules of the Nasdaq, applicable law and TriZetto's
Certificate of Incorporation and Bylaws.
8.9 IMS APPROVALS. This Agreement shall have been duly adopted
and approved by the IMS stockholders in accordance with the rules of the NYSE,
applicable law and IMS's Certificate of Incorporation and Bylaws.
8.10 NO LEGAL ACTION. No temporary restraining order,
preliminary injunction or permanent injunction or other order preventing the
consummation of the Merger shall have been issued by any Federal or state court
and remain in effect, nor shall any proceeding initiated by the U.S. Government
seeking any of the foregoing be pending.
8.11 TAX OPINION. TriZetto shall have received the opinion of
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, counsel to TriZetto, dated the Closing Date, to
the effect that the Merger will be treated for United States federal income tax
purposes as a reorganization within the meaning of Section 368(a) of the Code,
and that each of IMS and TriZetto will be a party to that reorganization within
the meaning of Section 368(b) of the Code, provided, that if Xxxxxxxxx Xxxxx
Xxxxxxx & Xxxxx does not render such opinion, this condition shall nonetheless
be deemed satisfied if Xxxxxxxx & Xxxxxxxx renders such opinion to TriZetto; it
being understood that in rendering such opinion, such counsel shall be entitled
to rely on, and IMS and TriZetto agree to provide reasonable cooperation in
providing, certain customary representations and assumptions.
8.12 SPIN-OFF OPINION.
(a) IMS shall have received an opinion from
XxXxxxxxx, Will & Xxxxx in form and substance reasonably satisfactory to
TriZetto to the effect that the Merger should not affect the qualification of
the distribution of IMS from Xxxxxxx Media Research, Inc. as a transaction in
which no gain or loss is recognized under Section 355 of the Code; and
(b) IMS shall have received an opinion from
XxXxxxxxx, Will & Xxxxx in form and substance reasonably satisfactory to
TriZetto to the effect that the Merger should not affect the qualification of
the distribution of IMS's equity interest in the Gartner Group, Inc. as a
transaction in which no gain or loss is recognized under Section 355 of the
Code. 8.13 NASDAQ LISTING. The shares of TriZetto Common Stock issuable to the
IMS stockholders pursuant to this Agreement shall have been approved for
quotation on the Nasdaq, upon official notice of issuance.
8.14 TRACKING STOCK FORM 10. The Tracking Stock Form 10 shall
have become effective under the Exchange Act and shall not be the subject of any
stop-order or proceedings seeking a stop-order or subject to any proceedings
commenced or threatened by the SEC.
8.15 CERTIFICATE OF DESIGNATIONS. TriZetto and IMS shall have
reasonably agreed on the form of the Certificate of Designations.
48
8.16 NYSE LISTING. The shares of Tracking Stock to be
distributed in connection with the Tracking Stock Distribution shall have been
approved for listing on the NYSE, upon official notice of issuance.
8.17 STB FORM 10. The STB Form 10 shall have become effective
under the Exchange Act and shall not be the subject of any stop-order or
proceedings seeking a stop-order or subject to any proceedings commenced or
threatened by the SEC.
8.18 LISTING OF STB STOCK. The shares of STB Stock to be
distributed in connection with the STB Distribution shall have been approved for
quotation on the Nasdaq or listing on the NYSE, as shall be reasonably agreed by
the parties, upon official notice of issuance.
9. TERMINATION OF AGREEMENT; TERMINATION FEES.
9.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of the Merger by
the stockholders of TriZetto or IMS:
(a) by mutual agreement of IMS and TriZetto;
(b) by IMS, if there has been a breach by TriZetto of
any representation, warranty, covenant or agreement set forth in this Agreement
on the part of TriZetto, or if any representation of TriZetto shall have become
untrue, such that Section 7.1 or 7.2 would not be satisfied and which TriZetto
fails to cure prior to the Closing (except that no cure period shall be provided
for a breach by TriZetto which by its nature cannot be cured);
(c) by TriZetto, if there has been a breach by IMS of
any representation. warranty, covenant or agreement set forth in this Agreement
on the part of IMS, or if any representation of IMS shall have become untrue,
such that Section 8.1 or 8.2 would not be satisfied and which IMS fails to cure
prior to the Closing (except that no cure period shall be provided for a breach
by IMS which by its nature cannot be cured);
(d) by either party if the required approvals of the
stockholders of IMS or TriZetto shall not have been obtained by reason of the
failure to obtain the required vote;
(e) by either party, if all the conditions for
Closing the Merger set forth in Sections 7 and 8 hereof shall not have been
satisfied or waived on or before the Final Date (as defined below) other than as
a result of a breach of this Agreement by the terminating party, or, in the case
of TriZetto, a breach by any of the TriZetto Designated Stockholders of the
TriZetto Voting Agreements in the event TriZetto does not obtain stockholder
approval of this Agreement, the issuance of TriZetto Common Stock in connection
with the Merger and the TriZetto Charter Amendment;
(f) by either party, if a permanent injunction or
other order by any Federal or state court which would make illegal or otherwise
restrain or prohibit the consummation of the Merger shall have been issued and
shall have become final and nonappealable; or
49
(g) by either party, if the IMS Board of Directors
shall have accepted or approved, or recommended to the stockholders of IMS, a
Superior Proposal, or if the IMS Board of Directors shall have withdrawn or
modified its recommendation of the Merger in connection with a Superior Proposal
(a "SUPERIOR PROPOSAL TERMINATION").
As used herein, the "FINAL DATE" shall be December 31, 2000.
9.2 NOTICE OF TERMINATION. Any termination of this Agreement
under Section 9.1 above will be effective by the delivery of written notice of
the terminating party to the other party hereto.
9.3 EFFECT OF TERMINATION. In the case of any termination of
this Agreement as provided in this Section 9, this Agreement shall be of no
further force and effect (except as provided in Section 9.4 and Section 11) and
nothing herein shall relieve any party from liability for any breach of this
Agreement. No termination of this Agreement shall affect the obligations
contained in the Confidentiality Agreement, all of which will survive
termination of this Agreement in accordance with their terms. 9.4 TERMINATION
FEE.
(a) In the event that this Agreement is terminated
pursuant to a Superior Proposal Termination in accordance with Section 9.1(g),
IMS shall (i) immediately make payment to TriZetto (by wire transfer or cashiers
check) of a fee in the amount of $202,000,000 (the "IMS TERMINATION FEE"), plus
the costs, fees and expenses incurred by TriZetto in connection with the
transactions contemplated by this Agreement, not to exceed $1,000,000 (the
"EXPENSES") and (ii) grant to TriZetto a license to use the software described
on Schedule 9.4(a), on the terms and conditions set forth on Schedule 9.4(a),
pursuant to a license agreement reasonably satisfactory to TriZetto and IMS.
(b) In the event that this Agreement is terminated
pursuant to Section 9.1(d) as a result of a failure of the stockholders of IMS
to approve the Merger by the vote required for such approval under circumstances
where, without the occurrence of a TriZetto Material Adverse Change, the Board
of Directors of IMS shall have refused to recommend or changed its
recommendation concerning the Merger, or shall have disclosed, in any manner,
its intention to change such recommendation, IMS shall immediately make payment
to TriZetto (by wire transfer or cashiers check) of the IMS Termination Fee plus
any Expenses, not to exceed $1,000,000.
(c) In the event that this Agreement is terminated
pursuant to Section 9.1(d) as a result of a failure of the stockholders of
TriZetto to approve the Merger by the vote required for such approval, under
circumstances where, without the occurrence of a IMS Material Adverse Change,
the Board of Directors of TriZetto shall have refused to recommend or changed
its recommendation concerning the Merger, or shall have disclosed, in any
manner, its intention to change such recommendation, TriZetto shall immediately
make payment to IMS (by wire transfer or cashiers check) of a fee in the amount
of $43,000,000, plus the costs, fees and expenses incurred by IMS in connection
with the transactions contemplated by this Agreement.
(d) Payment of the foregoing fees shall be the sole
and exclusive remedy of TriZetto against IMS and any of its subsidiaries or IMS
against TriZetto and any of its
50
subsidiaries, as the case may be, and their respective directors, officers,
employees, agents, advisors, or other representatives with respect to the events
giving rise to such payment.
(e) Neither party shall be entitled to receive the
termination fee hereunder if it shall have committed a material breach of this
Agreement which has not been cured.
10. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants of the parties contained
in this Agreement will remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the parties to this Agreement,
until the earlier of the termination of this Agreement or the Closing Date,
whereupon such representations, warranties and covenants will expire (except for
covenants that by their terms survive for a longer period).
11. MISCELLANEOUS.
11.1 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. The laws
of the State of Delaware (irrespective of its choice of law principles) will
govern the validity of this Agreement, the construction of its terms and the
interpretation and enforcement of the rights and duties of the parties hereto.
The parties hereby irrevocably submit to the jurisdiction of the courts of the
State of Delaware and the Federal courts of the United States of America located
in the State of Delaware solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby and thereby,
and hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such document,
that it is not subject thereto or that such action, suit or proceeding may not
be brought or is not maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement or any such document may not be
enforced in or by such courts, and the parties hereto irrevocably agree that all
claims with respect to such action or proceeding shall be heard and determined
in such a Delaware State or Federal court. The parties hereby consent to and
grant any such court jurisdiction over the person of such parties and over the
subject matter of such dispute and agree that mailing of process or other papers
in connection with any such action or proceeding in the manner provided in
Section 11.9 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.1.
51
11.2 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. Neither
party hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other party hereto. This Agreement will be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.3 SEVERABILITY. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other Persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of the void or unenforceable provision.
11.4 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be an original as regards any party
whose signature appears thereon and all of which together will constitute one
and the same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
11.5 OTHER REMEDIES. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by law
on such party, and the exercise of any one remedy will not preclude the exercise
of any other.
11.6 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by duly authorized officers of the
party to be bound thereby. The waiver by a party of any breach hereof or default
in the performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default. The Agreement may be amended by the
parties hereto at any time before or after approval of the IMS stockholders or
the TriZetto stockholders, but, after such approval, no amendment will be made
which by applicable law requires the further approval of the IMS stockholders or
the TriZetto stockholders without obtaining such further approval.
11.7 EXPENSES. Each party will bear its respective expenses
and legal fees incurred with respect to this Agreement, and the transactions
contemplated hereby.
11.8 ATTORNEYS' FEES. Should suit be brought to enforce or
interpret any part of this Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including, without limitation, costs,
expenses and fees on any appeal).
11.9 NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally, via
facsimile, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
52
If to IMS to: IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
With a copy to: IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
And to: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
And if to TriZetto to: The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attention: X.X. Xxxxxx
Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of a facsimile, when the party receiving such copy shall have
confirmed receipt of the communication, (c) in the case of delivery by
nationally-recognized overnight courier, on the business day following dispatch,
and (d) in the case of mailing, on the third business day following such
mailing.
11.10 CONSTRUCTION OF AGREEMENT. This Agreement has been
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section or an Exhibit will mean a Section in, or Exhibit to, this Agreement
unless otherwise explicitly set forth. The titles and headings herein are for
reference purposes only and will not in any manner limit the construction of
this Agreement which will be considered as a whole. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
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11.11 NO JOINT VENTURE. Nothing contained in this Agreement
will be deemed or construed as creating a joint venture or partnership between
any of the parties hereto. No party is by virtue of this Agreement authorized as
an agent, employee or legal representative of any other party. No party will
have the power to control the activities and operations of any other. The status
of the parties hereto is, and at all times, will continue to be, that of
independent contractors with respect to each other. No party will have any power
or authority to bind or commit any other. No party will hold itself out as
having any authority or relationship in contravention of this Section.
11.12 FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
11.13 ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. No provisions
of this Agreement are intended, nor will be interpreted, to provide or create
any third party beneficiary rights or any other rights of any kind in any
client, customer, affiliate, stockholder, partner or any party hereto or any
other Person unless specifically provided otherwise herein, and, except as so
provided, all provisions hereof will be personal solely between the parties to
this Agreement. Anything contained herein to the contrary notwithstanding, (a)
the holders of IMS Options are intended beneficiaries of Section 1.6; and (b)
the officers and directors of IMS are intended beneficiaries of Section 6.2.
11.14 PUBLIC ANNOUNCEMENT. Upon execution of this Agreement,
TriZetto and IMS promptly will issue a joint press release approved by both
parties announcing the Merger. Thereafter, TriZetto or IMS may issue such press
releases, and make such other disclosure regarding the Merger, as it determines
(after consultation with legal counsel) are required under applicable securities
laws or Nasdaq or NYSE rules.
11.15 ENTIRE AGREEMENT. This Agreement, the Voting Agreements,
the IMS Disclosure Letter, the TriZetto Disclosure Letter and the Exhibits and
Schedules hereto constitute the entire understanding and agreement of the
parties hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the parties with respect hereto
other than the Confidentiality Agreement, which shall remain in full force and
effect. The express terms hereof control and supersede any course of performance
or usage of trade inconsistent with any of the terms hereof.
54
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
Plan of Reorganization as of the date first above written.
THE TRIZETTO GROUP, INC.
By:
--------------------------------------
Name:
Title:
IMS HEALTH INCORPORATED
By:
--------------------------------------
Name:
Title:
55
Exhibit A to
Agreement and Plan of Reorganization
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of March 28,
2000, among the undersigned stockholders (the "STOCKHOLDERS") of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a
Delaware corporation ("IMS"). Except as otherwise provided herein, capitalized
terms that are used but not otherwise defined herein shall have the respective
meanings assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, TriZetto and IMS have entered into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), providing for, among other things, the
merger of IMS with and into TriZetto, the issuance of shares of TriZetto Common
Stock to IMS stockholders in connection with the Merger, certain amendments to
TriZetto's certificate of incorporation as set forth in the Merger Agreement
(the "TRIZETTO CHARTER AMENDMENTS"), and a new TriZetto stock option plan (the
"STOCK OPTION PLAN") in such form and with such number of available options
issuable thereunder as shall be agreed upon by TriZetto and IMS (collectively,
the "TRANSACTIONS"), upon the terms and subject to the conditions set forth in
the Merger Agreement, and setting forth certain representations, warranties,
covenants and agreements of the parties thereto in connection with the
Transactions;
WHEREAS, the Merger Agreement contemplates the execution and
delivery of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger
Agreement, the Stockholders wish to agree (i) to deliver to IMS an irrevocable
proxy to Vote (as defined in Section 2 hereof) the Shares (as defined in Section
1 hereof) and any other shares of capital stock of TriZetto acquired hereafter
and prior to the termination of this Agreement so as to approve and adopt (a)
the Merger Agreement and the transactions contemplated thereby, (b) the issuance
of TriZetto Common Stock to IMS stockholders in connection with the Merger, (c)
the TriZetto Charter Amendments and (d) the Stock Option Plan, and (ii) not to
transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of TriZetto acquired hereafter and prior to the termination of
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Stockholders. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TriZetto Common Stock"), set forth opposite such Stockholder's
name on Exhibit A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and,
except for this Agreement and the Merger Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or Voting of any shares of capital stock of TriZetto and there are
no Voting trusts or Voting agreements with respect to such Shares, (b) such
Stockholder does not beneficially own (as such term is used in Rule 13d-3 of the
Exchange Act) any shares of TriZetto Common Stock other than such Shares and
does not have any options, warrants or other rights to acquire any additional
shares of capital stock of TriZetto or any security exercisable for or
convertible into shares of capital stock of TriZetto other than those options,
warrants or other rights set forth opposite such Stockholder's name on EXHIBIT B
hereto (such Stockholder's "OPTIONS") and each Stockholder represents and
warrants that such Stockholder shall not exercise any such Options prior to the
termination of this Agreement except in accordance with Section 6 of this
Agreement, (c) such Stockholder has full power and authority and has taken all
actions necessary to enter into, execute and deliver this Agreement and to
perform fully such Stockholder's obligations hereunder and this Agreement has
been duly executed and delivered and constitutes the legal, valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, subject to the Bankruptcy and Equity Exception, (d)
other than filings under the Exchange Act, no notices, reports or other filings
are required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder from, any Governmental Entity, in connection with the execution
and delivery of this Agreement by such Stockholder, and (e) the execution,
delivery and performance of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not, violate, conflict with or constitute a breach of, or a default under, the
certificate of incorporation or by-laws of such Stockholder or any or their
comparable governing instruments (if such Stockholder is not a natural person)
or result in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
cancellation, modification or acceleration) (whether after the giving of or the
passage of time of both) under any contract to which such Stockholder is a party
or which is binding on it or its assets and will not result in the creation of
any lien on, or security interest in, any of the assets on properties of such
Stockholder.
2. Agreement to Deliver Proxy. Each of the Stockholders agrees
to deliver to IMS on the date hereof an irrevocable proxy substantially in the
form attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor
of approval and adoption of the Merger Agreement, the Merger and the
transactions contemplated thereby, the issuance of TriZetto Common Stock to IMS
stockholders pursuant to the Merger Agreement, the TriZetto Charter Amendments
and the Stock Option Plan at any meeting of the stockholders of TriZetto at
which such matters are considered and at every adjournment or postponement
thereof, (b) against any action or agreement that would compete with, impede,
interfere with or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions, (c) against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of TriZetto under the Merger Agreement and (d)
except for the
2
Transactions, against any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of TriZetto or the TriZetto Subsidiaries. The proxy delivered by
each of the Stockholders pursuant to this Section 2 shall be irrevocable during
the term of this Agreement to the extent permitted under Delaware law. For
purposes of this Agreement, "VOTE" shall include voting in person or by proxy in
favor of or against any action, otherwise consenting or withholding consent in
respect of any action (including, but not limited to, consenting in accordance
with Section 228 of the Delaware General Corporation Law) or taking other action
in favor of or against any action. "VOTING" shall have a correlative meaning.
3. No Voting Trusts. Each of the Stockholders agrees that they
will not, nor will they permit any entity or person under their control to,
deposit any of its Shares or New Shares (as defined in Section 6 hereof) in a
Voting trust or subject any of their Shares or New Shares to any arrangement
with respect to the Voting of such Shares or New Shares other than agreements
entered into with IMS.
4. No Proxy Solicitations. Each of the Stockholders agrees
that such Stockholder will not, nor will such Stockholder permit any entity or
person under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Transactions or otherwise encourage or assist any party in taking or
planning any action which would compete with, impede, interfere with or tend to
discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) to directly or indirectly encourage, initiate or cooperate in
a stockholders' Vote or action by consent of TriZetto's stockholders in
opposition to or in competition with the consummation of the Transactions or (c)
to become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of TriZetto for the purpose
of opposing or competing with the consummation of the Transactions.
5. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Shares, Options or New Shares.
6. Additional Purchases. Each of the Stockholders agrees that
such Stockholder will not purchase or otherwise acquire beneficial ownership (as
such term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto
Common Stock after the execution of this Agreement, including, but not limited
to, acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
3
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party
hereto acknowledges that it will be impossible to measure in money the damage to
the other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the exhibits hereto) supersedes all prior agreements, written or
oral, among the parties hereto with respect to the subject matter hereof and
contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
With copies, which shall not constitute notice, to:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
4
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to a Stockholder, to the address or telecopy number set
forth for such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(b) Venue; WAIVER OF JURY TRIAL. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents governed by Delaware law
referred to in this Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding
may not be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal court. The parties hereby consent
to and grant any such court jurisdiction over the person of such parties and
over the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
5
provided in Section 9 of this Agreement or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(e) Termination. This Agreement shall terminate upon the
earliest to occur of (i) the Closing, (ii) the termination of the Merger
Agreement and (iii) the date specified in a written agreement duly executed and
delivered by IMS and each of the Stockholders.
(f) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: ________________________
Name:
Title:
STOCKHOLDER:
By: ________________________
Name:
Title:
Address:
Telecopy:
EXHIBIT A
STOCKHOLDERS
NAME NUMBER OF SHARES
---- ----------------
EXHIBIT B
STOCKHOLDERS OPTIONS
NAME OPTIONS
---- -------
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation "IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share, of The TriZetto Group, Inc., a Delaware
corporation ("TriZetto"), owned by the undersigned (the "Shares") as of the date
hereof at any meetings of stockholders of TriZetto after the date hereof and at
any adjournment or postponement thereof (each, a "TRIZETTO MEETING") FOR
approval and adoption of (a) the Agreement and Plan of Reorganization, dated as
of March __, 2000 (the "MERGER AGREEMENT"), by and between TriZetto and IMS, and
the transactions contemplated thereby, (b) the issuance of TriZetto Common Stock
to IMS stockholders pursuant to the Merger Agreement, (c) certain amendments to
TriZetto's certificate of incorporation contemplated by the Merger Agreement,
and (d) a new TriZetto stock option plan in such form and with such number of
available options issuable thereunder as shall be agreed upon by IMS and
TriZetto (collectively, the "TRANSACTIONS"), and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Transactions or inhibit the timely consummation of the Transactions, (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto under
the Merger Agreement, or (c) except for the Transactions, any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of TriZetto or its
subsidiaries, and (ii) to withhold consents with respect to such Shares for (a)
any action or agreement that would compete with, impede, interfere with or tend
to discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries. This proxy is coupled with an interest, revokes
all prior proxies granted by the undersigned and is irrevocable until such time
as the Voting Agreement, dated as of March __, 2000, among certain stockholders
of TriZetto, including the undersigned, and IMS, terminates in accordance with
its terms, at which time this proxy shall expire.
Dated March __, 2000
--------------------------------
(Signature of Stockholder)
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
of Common Stock, par value $0.001 per share (the "NEW SHARES"), of The TriZetto
Group, Inc., a Delaware corporation ("TriZetto"), purchased or otherwise
acquired by the undersigned, or for which the undersigned has voluntarily
acquired the right to vote or share in the voting of such shares, since the
execution of the Voting Agreement, dated as of March __, 2000 (the "Voting
Agreement"), by and among certain stockholders of TriZetto, including the
undersigned, and IMS, at any meetings of stockholders of TriZetto after the date
hereof and at any adjournment or postponement thereof (each, a "TRIZETTO
MEETING") FOR approval and adoption of (a) the Agreement and Plan of
Reorganization, dated as of March __, 2000 (the "MERGER AGREEMENT"), by and
between TriZetto and IMS, and the transactions contemplated thereby, (b) the
issuance of TriZetto Common Stock to IMS stockholders pursuant to the Merger
Agreement, (c) certain amendments to TriZetto's certificate of incorporation
contemplated by the Merger Agreement and (d) a new TriZetto stock option plan in
such form and with such number of available options issuable thereunder as shall
be agreed upon by IMS and TriZetto (collectively, the "TRANSACTIONS"), and
AGAINST (a) any action or agreement that would compete with, impede, interfere
with or tend to discourage the Transactions or inhibit the timely consummation
of the Transactions, (b) any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries, and (ii) to withhold consents with respect to such
New Shares for (a) any action or agreement that would compete with, impede,
interfere with or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions, (b) any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation of TriZetto under the Merger Agreement, or (c) except
for the Transactions, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of TriZetto or its subsidiaries. This proxy is coupled with an
interest and is irrevocable until such time as the Voting Agreement terminates
in accordance with its terms, at which time this proxy shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
Exhibit B to
Agreement and Plan of Reorganization
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of March 28,
2000, among the undersigned stockholders (the "STOCKHOLDERS") of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a
Delaware corporation ("IMS"). Except as otherwise provided herein, capitalized
terms that are used but not otherwise defined herein shall have the respective
meanings assigned to such terms in the Merger Agreement (as defined below). In
the case of Fidelity Ventures, Limited, Fidelity Investors Limited Partnership
and Fidelity Investors II Limited Partnership (collectively, the "Fidelity
Entities"), all references to "Stockholder" shall include only the Fidelity
Entities and shall not include FMR Corp. and its other subsidiaries and
affiliates; Fidelity International Limited and its subsidiaries and affiliates;
directors and officers of FMR Corp. and Fidelity International Limited and their
respective subsidiaries and affiliates; Xxxxxx X. Xxxxxxx 3d and members of his
family and trusts for their benefit; and any accounts over which FMR Corp. or
Fidelity International Limited or their respective subsidiaries and affiliates
have investment management or advisory responsibilities, including any of the
Fidelity Investments mutual funds.
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, TriZetto and IMS have entered into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), providing for, among other things, the
merger of IMS with and into TriZetto, the issuance of shares of TriZetto Common
Stock to IMS stockholders in connection with the Merger, certain amendments to
TriZetto's certificate of incorporation as set forth in the Merger Agreement
(the "TRIZETTO CHARTER AMENDMENTS"), and a new TriZetto stock option plan (the
"STOCK OPTION PLAN") in such form and with such number of available options
issuable thereunder as shall be agreed upon by TriZetto and IMS (collectively,
the "TRANSACTIONS"), upon the terms and subject to the conditions set forth in
the Merger Agreement, and setting forth certain representations, warranties,
covenants and agreements of the parties thereto in connection with the
Transactions;
WHEREAS, the Merger Agreement contemplates the execution and
delivery of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger
Agreement, the Stockholders wish to agree (i) to deliver to IMS an irrevocable
proxy to Vote (as defined in Section 2 hereof) the Shares (as defined in Section
1 hereof) and any other shares of capital stock of TriZetto acquired hereafter
and prior to the termination of this Agreement so as to approve and adopt (a)
the Merger Agreement and the transactions contemplated thereby, (b) the issuance
of TriZetto Common Stock to IMS stockholders in connection with the Merger, (c)
the TriZetto Charter Amendments and (d) the Stock Option Plan, and (ii) not to
transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of TriZetto acquired hereafter and prior to the termination of
this Agreement except in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Stockholders. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TriZetto Common Stock"), set forth opposite such Stockholder's
name on Exhibit A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and, except for
this Agreement and the Merger Agreement, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital stock of TriZetto and there are no Voting trusts or Voting
agreements with respect to such Shares, (b) such Stockholder does not
beneficially own (as such term is used in Rule 13d-3 of the Exchange Act) any
shares of TriZetto Common Stock other than such Shares and does not have any
options, warrants or other rights to acquire any additional shares of capital
stock of TriZetto or any security exercisable for or convertible into shares of
capital stock of TriZetto other than those options, warrants or other rights set
forth opposite such Stockholder's name on EXHIBIT B hereto (such Stockholder's
"OPTIONS") and each Stockholder represents and warrants that such Stockholder
shall not exercise any such Options prior to the termination of this Agreement
except in accordance with Section 6 of this Agreement, (c) such Stockholder has
full power and authority and has taken all actions necessary to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder and this Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, subject to
the Bankruptcy and Equity Exception, (d) other than filings under the Exchange
Act, no notices, reports or other filings are required to be made by such
Stockholder with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (e) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, violate, conflict
with or constitute a breach of, or a default under, the certificate of
incorporation or by-laws of such Stockholder or any or their comparable
governing instruments (if such Stockholder is not a natural person) or result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
modification or acceleration) (whether after the giving of or the passage of
time of both) under any contract to which such Stockholder is a party or which
is binding on it or its assets and will not result in the creation of any lien
on, or security interest in, any of the assets on properties of such
Stockholder.
2. Agreement to Deliver Proxy. Each of the Stockholders agrees
to deliver to IMS on the date hereof an irrevocable proxy substantially in the
form attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor
of approval and
adoption of the Merger Agreement, the Merger and the transactions contemplated
thereby, the issuance of TriZetto Common Stock to IMS stockholders pursuant to
the Merger Agreement, the TriZetto Charter Amendments and the Stock Option Plan
at any meeting of the stockholders of TriZetto at which such matters are
considered and at every adjournment or postponement thereof, (b) against any
action or agreement that would compete with, impede, interfere with or tend to
discourage the Transactions or inhibit the timely consummation of the
Transactions, (c) against any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement and (d) except for the
Transactions, against any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of TriZetto or the TriZetto Subsidiaries. The proxy delivered by
each of the Stockholders pursuant to this Section 2 shall be irrevocable during
the term of this Agreement to the extent permitted under Delaware law. For
purposes of this Agreement, "VOTE" shall include voting in person or by proxy in
favor of or against any action, otherwise consenting or withholding consent in
respect of any action (including, but not limited to, consenting in accordance
with Section 228 of the Delaware General Corporation Law) or taking other action
in favor of or against any action. "VOTING" shall have a correlative meaning.
3. No Voting Trusts. Each of the Stockholders agrees that they
will not, nor will they permit any entity or person under their control to,
deposit any of its Shares or New Shares (as defined in Section 6 hereof) in a
Voting trust or subject any of their Shares or New Shares to any arrangement
with respect to the Voting of such Shares or New Shares other than agreements
entered into with IMS.
4. No Proxy Solicitations. Each of the Stockholders agrees
that such Stockholder will not, nor will such Stockholder permit any entity or
person under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Transactions or otherwise encourage or assist any party in taking or
planning any action which would compete with, impede, interfere with or tend to
discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) to directly or indirectly encourage, initiate or cooperate in
a stockholders' Vote or action by consent of TriZetto's stockholders in
opposition to or in competition with the consummation of the Transactions or (c)
to become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of TriZetto for the purpose
of opposing or competing with the consummation of the Transactions.
5. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Shares, Options or New Shares; PROVIDED, that a
Stockholder may transfer such Stockholder's Shares or New Shares if, prior to
such transfer, the transferee of such Shares or New Shares, as applicable, shall
have executed for the benefit of IMS, a legally binding instrument pursuant to
which such transferee agrees to assume all of such Stockholder's obligations
under this Agreement, including the delivery of an irrevocable proxy to IMS
substantially in the form attached hereto as EXHIBIT C with respect to such
transferred Shares or New Shares, as applicable.
6. Additional Purchases. Each of the Stockholders agrees that
such Stockholder will not purchase or otherwise acquire beneficial ownership (as
such term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto
Common Stock after the execution of this Agreement, including, but not limited
to, acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party
hereto acknowledges that it will be impossible to measure in money the damage to
the other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the exhibits hereto) supersedes all prior agreements, written or
oral, among the parties hereto with respect to the subject matter hereof and
contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000)000-0000
With copies, which shall not constitute notice, to:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxxxx
Telecopy: (000)000-0000
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to a Stockholder, to the address or telecopy number set
forth for such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(b) Venue; WAIVER OF JURY TRIAL. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(e) Termination. This Agreement shall terminate upon the
earliest to occur of (i) the Closing, (ii) the termination of the Merger
Agreement and (iii) the date specified in a written agreement duly executed and
delivered by IMS and each of the Stockholders, PROVIDED, however, that with
respect to the Fidelity Entities this Agreement shall terminate upon the
earliest to occur of (i) the Closing, (ii) the termination of the Merger
Agreement, (iii) the date 180 days after the date of this Agreement, and (iv)
the date specified in a written agreement duly executed and delivered by IMS and
the Fidelity Entities.
(f) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(g) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: ________________________
Name:
Title:
STOCKHOLDER:
By: ________________________
Name:
Title:
Address:
Telecopy:
EXHIBIT A
STOCKHOLDERS
NAME NUMBER OF SHARES
---- ----------------
EXHIBIT B
STOCKHOLDERS OPTIONS
NAME OPTIONS
---- -------
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share, of The TriZetto Group, Inc., a Delaware
corporation ("TriZetto"), owned by the undersigned (the "Shares") as of the date
hereof at any meetings of stockholders of TriZetto after the date hereof and at
any adjournment or postponement thereof (each, a "TRIZETTO MEETING") FOR
approval and adoption of (a) the Agreement and Plan of Reorganization, dated as
of March __, 2000 (the "MERGER AGREEMENT"), by and between TriZetto and IMS, and
the transactions contemplated thereby, (b) the issuance of TriZetto Common Stock
to IMS stockholders pursuant to the Merger Agreement, (c) certain amendments to
TriZetto's certificate of incorporation contemplated by the Merger Agreement,
and (d) a new TriZetto stock option plan in such form and with such number of
available options issuable thereunder as shall be agreed upon by IMS and
TriZetto (collectively, the "TRANSACTIONS"), and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Transactions or inhibit the timely consummation of the Transactions, (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto under
the Merger Agreement, or (c) except for the Transactions, any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of TriZetto or its
subsidiaries, and (ii) to withhold consents with respect to such Shares for (a)
any action or agreement that would compete with, impede, interfere with or tend
to discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries. This proxy is coupled with an interest, revokes
all prior proxies granted by the undersigned and is irrevocable until such time
as the Voting Agreement, dated as of March __, 2000, among certain stockholders
of TriZetto, including the undersigned, and IMS, terminates in accordance with
its terms, at which time this proxy shall expire.
Dated March __, 2000
--------------------------------
(Signature of Stockholder)
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
of Common Stock, par value $0.001 per share (the "NEW SHARES"), of The TriZetto
Group, Inc., a Delaware corporation ("TriZetto"), purchased or otherwise
acquired by the undersigned, or for which the undersigned has voluntarily
acquired the right to vote or share in the voting of such shares, since the
execution of the Voting Agreement, dated as of March __, 2000 (the "Voting
Agreement"), by and among certain stockholders of TriZetto, including the
undersigned, and IMS, at any meetings of stockholders of TriZetto after the date
hereof and at any adjournment or postponement thereof (each, a "TRIZETTO
MEETING") FOR approval and adoption of (a) the Agreement and Plan of
Reorganization, dated as of March __, 2000 (the "MERGER AGREEMENT"), by and
between TriZetto and IMS, and the transactions contemplated thereby, (b) the
issuance of TriZetto Common Stock to IMS stockholders pursuant to the Merger
Agreement, (c) certain amendments to TriZetto's certificate of incorporation
contemplated by the Merger Agreement and (d) a new TriZetto stock option plan in
such form and with such number of available options issuable thereunder as shall
be agreed upon by IMS and TriZetto (collectively, the "TRANSACTIONS"), and
AGAINST (a) any action or agreement that would compete with, impede, interfere
with or tend to discourage the Transactions or inhibit the timely consummation
of the Transactions, (b) any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries, and (ii) to withhold consents with respect to such
New Shares for (a) any action or agreement that would compete with, impede,
interfere with or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions, (b) any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation of TriZetto under the Merger Agreement, or (c) except
for the Transactions, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of TriZetto or its subsidiaries. This proxy is coupled with an
interest and is irrevocable until such time as the Voting Agreement terminates
in accordance with its terms, at which time this proxy shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
Exhibit C to
Agreement and Plan of Reorganization
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of March 28,
2000, among the undersigned stockholders (the "STOCKHOLDERS") of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a
Delaware corporation ("IMS"). Except as otherwise provided herein, capitalized
terms that are used but not otherwise defined herein shall have the respective
meanings assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, TriZetto and IMS have entered into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), providing for, among other things, the
merger of IMS with and into TriZetto, the issuance of shares of TriZetto Common
Stock to IMS stockholders in connection with the Merger, certain amendments to
TriZetto's certificate of incorporation as set forth in the Merger Agreement
(the "TRIZETTO CHARTER AMENDMENTS"), and a new TriZetto stock option plan (the
"STOCK OPTION PLAN") in such form and with such number of available options
issuable thereunder as shall be agreed upon by TriZetto and IMS (collectively,
the "TRANSACTIONS"), upon the terms and subject to the conditions set forth in
the Merger Agreement, and setting forth certain representations, warranties,
covenants and agreements of the parties thereto in connection with the
Transactions;
WHEREAS, the Merger Agreement contemplates the execution and
delivery of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger
Agreement, the Stockholders wish to agree (i) to deliver to IMS an irrevocable
proxy to Vote (as defined in Section 2 hereof) the Shares (as defined in Section
1 hereof) and any other shares of capital stock of TriZetto acquired hereafter
and prior to the termination of this Agreement so as to approve and adopt (a)
the Merger Agreement and the transactions contemplated thereby, (b) the issuance
of TriZetto Common Stock to IMS stockholders in connection with the Merger, (c)
the TriZetto Charter Amendments and (d) the Stock Option Plan, and (ii) not to
transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of TriZetto acquired hereafter and prior to the termination of
this Agreement except in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Stockholders. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TriZetto Common Stock"), set forth opposite such Stockholder's
name on Exhibit A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and,
except for this Agreement and the Merger Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or Voting of any shares of capital stock of TriZetto and there are
no Voting trusts or Voting agreements with respect to such Shares, (b) such
Stockholder does not beneficially own (as such term is used in Rule 13d-3 of the
Exchange Act) any shares of TriZetto Common Stock other than such Shares and
does not have any options, warrants or other rights to acquire any additional
shares of capital stock of TriZetto or any security exercisable for or
convertible into shares of capital stock of TriZetto other than those options,
warrants or other rights set forth opposite such Stockholder's name on EXHIBIT B
hereto (such Stockholder's "OPTIONS") and each Stockholder represents and
warrants that such Stockholder shall not exercise any such Options prior to the
termination of this Agreement except in accordance with Section 6 of this
Agreement, (c) such Stockholder has full power and authority and has taken all
actions necessary to enter into, execute and deliver this Agreement and to
perform fully such Stockholder's obligations hereunder and this Agreement has
been duly executed and delivered and constitutes the legal, valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, subject to the Bankruptcy and Equity Exception, (d)
other than filings under the Exchange Act, no notices, reports or other filings
are required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder from, any Governmental Entity, in connection with the execution
and delivery of this Agreement by such Stockholder, and (e) the execution,
delivery and performance of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not, violate, conflict with or constitute a breach of, or a default under, the
certificate of incorporation or by-laws of such Stockholder or any or their
comparable governing instruments (if such Stockholder is not a natural person)
or result in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
cancellation, modification or acceleration) (whether after the giving of or the
passage of time of both) under any contract to which such Stockholder is a party
or which is binding on it or its assets and will not result in the creation of
any lien on, or security interest in, any of the assets on properties of such
Stockholder.
2. Agreement to Deliver Proxy. Each of the Stockholders agrees
to deliver to IMS on the date hereof an irrevocable proxy substantially in the
form attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor
of approval and adoption of the Merger Agreement, the Merger and the
transactions contemplated thereby, the issuance of TriZetto Common Stock to IMS
stockholders pursuant to the Merger Agreement, the TriZetto Charter Amendments
and the Stock Option Plan at any meeting of the stockholders of TriZetto at
which such matters are considered and at every adjournment or postponement
thereof, (b) against any action or agreement that would compete with, impede,
interfere with or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions, (c) against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of TriZetto under the Merger Agreement and (d)
except for the Transactions, against any merger, consolidation, business
combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or the TriZetto Subsidiaries. The proxy delivered by each of the
Stockholders pursuant to this Section 2 shall be irrevocable during the term of
this Agreement to the extent permitted under Delaware law. For purposes of this
Agreement, "VOTE" shall include voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in respect of
any action (including, but not limited to, consenting in accordance with Section
228 of the Delaware General Corporation Law) or taking other action in favor of
or against any action. "VOTING" shall have a correlative meaning.
3. No Voting Trusts. Each of the Stockholders agrees that they
will not, nor will they permit any entity or person under their control to,
deposit any of its Shares or New Shares (as defined in Section 6 hereof) in a
Voting trust or subject any of their Shares or New Shares to any arrangement
with respect to the Voting of such Shares or New Shares other than agreements
entered into with IMS.
4. No Proxy Solicitations. Each of the Stockholders agrees
that such Stockholder will not, nor will such Stockholder permit any entity or
person under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Transactions or otherwise encourage or assist any party in taking or
planning any action which would compete with, impede, interfere with or tend to
discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) to directly or indirectly encourage, initiate or cooperate in
a stockholders' Vote or action by consent of TriZetto's stockholders in
opposition to or in competition with the consummation of the Transactions or (c)
to become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of TriZetto for the purpose
of opposing or competing with the consummation of the Transactions.
5. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Shares, Options or New Shares; PROVIDED, that a
Stockholder may transfer such Stockholder's Shares or New Shares if, prior to
such transfer, the transferee of such Shares or New Shares, as applicable, shall
have executed for the benefit of IMS, a legally binding instrument pursuant to
which such transferee agrees to assume all of such Stockholder's obligations
under this Agreement, including the delivery of an irrevocable proxy to IMS
substantially in the form attached hereto as EXHIBIT C with respect to such
transferred Shares or New Shares, as applicable.
6. Additional Purchases. Each of the Stockholders agrees that
such Stockholder will not purchase or otherwise acquire beneficial ownership (as
such term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto
Common Stock after the execution of this Agreement, including, but not limited
to, acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such
purchase or acquisition an irrevocable proxy substantially in the form attached
hereto as EXHIBIT D with respect to such New Shares. Each of the Stockholders
also severally agrees that any New Shares acquired or purchased by him or her
shall be subject to the terms of this Agreement to the same extent as if they
constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party
hereto acknowledges that it will be impossible to measure in money the damage to
the other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the exhibits hereto) supersedes all prior agreements, written or
oral, among the parties hereto with respect to the subject matter hereof and
contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000)000-0000
With copies, which shall not constitute notice, to:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxxxx
Telecopy: (000)000-0000
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to a Stockholder, to the address or telecopy number set
forth for such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(b) Venue; WAIVER OF JURY TRIAL. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents governed by Delaware law
referred to in this Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding
may not be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 9 of this Agreement or in such
other manner as may be permitted by law shall be valid and sufficient service
thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(e) Termination. This Agreement shall terminate upon the
earliest to occur of (i) the Closing, (ii) the termination of the Merger
Agreement and (iii) the date specified in a written agreement duly executed and
delivered by IMS and each of the Stockholders.
(f) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(g) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: ________________________
Name:
Title:
STOCKHOLDER:
By: ________________________
Name:
Title:
Address:
Telecopy:
EXHIBIT A
STOCKHOLDERS
NAME NUMBER OF SHARES
---- ----------------
EXHIBIT B
STOCKHOLDERS OPTIONS
NAME OPTIONS
---- -------
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share, of The TriZetto Group, Inc., a Delaware
corporation ("TriZetto"), owned by the undersigned (the "Shares") as of the date
hereof at any meetings of stockholders of TriZetto after the date hereof and at
any adjournment or postponement thereof (each, a "TRIZETTO MEETING") FOR
approval and adoption of (a) the Agreement and Plan of Reorganization, dated as
of March __, 2000 (the "MERGER AGREEMENT"), by and between TriZetto and IMS, and
the transactions contemplated thereby, (b) the issuance of TriZetto Common Stock
to IMS stockholders pursuant to the Merger Agreement, (c) certain amendments to
TriZetto's certificate of incorporation contemplated by the Merger Agreement,
and (d) a new TriZetto stock option plan in such form and with such number of
available options issuable thereunder as shall be agreed upon by IMS and
TriZetto (collectively, the "TRANSACTIONS"), and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Transactions or inhibit the timely consummation of the Transactions, (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto under
the Merger Agreement, or (c) except for the Transactions, any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of TriZetto or its
subsidiaries, and (ii) to withhold consents with respect to such Shares for (a)
any action or agreement that would compete with, impede, interfere with or tend
to discourage the Transactions or inhibit the timely consummation of the
Transactions, (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries. This proxy is coupled with an interest, revokes
all prior proxies granted by the undersigned and is irrevocable until such time
as the Voting Agreement, dated as of March __, 2000, among certain stockholders
of TriZetto, including the undersigned, and IMS, terminates in accordance with
its terms, at which time this proxy shall expire.
Dated March __, 2000
--------------------------------
(Signature of Stockholder)
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxxx Xxxx or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
of Common Stock, par value $0.001 per share (the "NEW SHARES"), of The TriZetto
Group, Inc., a Delaware corporation ("TriZetto"), purchased or otherwise
acquired by the undersigned, or for which the undersigned has voluntarily
acquired the right to vote or share in the voting of such shares, since the
execution of the Voting Agreement, dated as of March __, 2000 (the "Voting
Agreement"), by and among certain stockholders of TriZetto, including the
undersigned, and IMS, at any meetings of stockholders of TriZetto after the date
hereof and at any adjournment or postponement thereof (each, a "TRIZETTO
MEETING") FOR approval and adoption of (a) the Agreement and Plan of
Reorganization, dated as of March __, 2000 (the "MERGER AGREEMENT"), by and
between TriZetto and IMS, and the transactions contemplated thereby, (b) the
issuance of TriZetto Common Stock to IMS stockholders pursuant to the Merger
Agreement, (c) certain amendments to TriZetto's certificate of incorporation
contemplated by the Merger Agreement and (d) a new TriZetto stock option plan in
such form and with such number of available options issuable thereunder as shall
be agreed upon by IMS and TriZetto (collectively, the "TRANSACTIONS"), and
AGAINST (a) any action or agreement that would compete with, impede, interfere
with or tend to discourage the Transactions or inhibit the timely consummation
of the Transactions, (b) any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of TriZetto under the Merger Agreement, or (c) except for the
Transactions, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of
TriZetto or its subsidiaries, and (ii) to withhold consents with respect to such
New Shares for (a) any action or agreement that would compete with, impede,
interfere with or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions, (b) any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation of TriZetto under the Merger Agreement, or (c) except
for the Transactions, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of TriZetto or its subsidiaries. This proxy is coupled with an
interest and is irrevocable until such time as the Voting Agreement terminates
in accordance with its terms, at which time this proxy shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
Exhibit D to
Agreement and Plan of Reorganization
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of March 28,
2000, among the undersigned stockholders (the "STOCKHOLDERS") of IMS Health
Incorporated, a Delaware corporation ("IMS"), and The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"). Except as otherwise provided herein,
capitalized terms that are used but not otherwise defined herein shall have the
respective meanings assigned to such terms in the Merger Agreement (as defined
below).
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, TriZetto and IMS have entered into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), providing for, among other things, the
merger of IMS with and into TriZetto (the "MERGER"), upon the terms and subject
to the conditions set forth in the Merger Agreement, and setting forth certain
representations, warranties, covenants and agreements of the parties thereto in
connection with the Merger;
WHEREAS, the Merger Agreement contemplates the execution and
delivery of this Agreement;
WHEREAS, in order to induce TriZetto to enter into the Merger
Agreement, the Stockholders wish to agree (i) to deliver to TriZetto an
irrevocable proxy to Vote (as defined in Section 2 hereof) the Shares (as
defined in Section 1 hereof) and any other shares of capital stock of IMS
acquired hereafter and prior to the termination of this Agreement so as to
approve and adopt the Merger Agreement and the transactions contemplated thereby
and (ii) not to transfer or otherwise dispose of any of the Shares, or any other
shares of capital stock of IMS acquired hereafter and prior to the termination
of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Stockholders. Each of the Stockholders
represents and warrants to TriZetto that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.01 per share, of IMS
(the "IMS Common Stock"), set forth opposite such Stockholder's name on Exhibit
A hereto (such Stockholder's "SHARES") free and clear of all liens, claims,
charges, security interests or other encumbrances and, except for this Agreement
and the Merger Agreement, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital stock of IMS and there are no Voting trusts or Voting
agreements with respect to such Shares, (b) such Stockholder does not
beneficially own (as such term is used in Rule 13d-3 of the Exchange Act) any
shares of IMS Common Stock other than such Shares and does not have any options,
warrants or other rights to acquire any additional shares of
capital stock of IMS or any security exercisable for or convertible into shares
of capital stock of IMS other than those options, warrants or other rights set
forth opposite such Stockholder's name on EXHIBIT B hereto (such Stockholder's
"OPTIONS") and each Stockholder represents and warrants that such Stockholder
shall not exercise any such Options prior to the termination of this Agreement
except in accordance with Section 6 of this Agreement, (c) such Stockholder has
full power and authority and has taken all actions necessary to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder and this Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, subject to
the Bankruptcy and Equity Exception, (d) other than filings under the Exchange
Act, no notices, reports or other filings are required to be made by such
Stockholder with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (e) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
modification or acceleration) (whether after the giving of or the passage of
time of both) under any contract to which such Stockholder is a party or which
is binding on it or its assets and will not result in the creation of any lien
on, or security interest in, any of the assets on properties of such
Stockholder.
2. Agreement to Deliver Proxy. Each of the Stockholders agrees
to deliver to TriZetto on the date hereof an irrevocable proxy substantially in
the form attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in
favor of approval and adoption of the Merger Agreement, the Merger and the
transactions contemplated thereby at any meeting of the stockholders of IMS at
which such matters are considered and at every adjournment or postponement
thereof, (b) against any action or agreement that would compete with, impede,
interfere with or tend to discourage the Merger or inhibit the timely
consummation of the Merger, (c) against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of IMS under the Merger Agreement and (d)
except for the Merger, against any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of IMS or the IMS Subsidiaries. The proxy delivered by each of
the Stockholders pursuant to this Section 2 shall be irrevocable during the term
of this Agreement to the extent permitted under Delaware law. For purposes of
this Agreement, "VOTE" shall include voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in respect of
any action (including, but not limited to, consenting in accordance with Section
228 of the Delaware General Corporation Law) or taking other action in favor of
or against any action. "VOTING" shall have a correlative meaning.
3. No Voting Trusts. Each of the Stockholders agrees that they
will not, nor will they permit any entity or person under their control to,
deposit any of its Shares or New Shares (as defined in Section 6 hereof) in a
Voting trust or subject any of their
Shares or New Shares to any arrangement with respect to the Voting of such
Shares or New Shares other than agreements entered into with TriZetto.
4. No Proxy Solicitations. Each of the Stockholders agrees
that such Stockholder will not, nor will such Stockholder permit any entity or
person under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or otherwise encourage or assist any party in taking or planning
any action which would compete with, impede, interfere with or tend to
discourage the Merger or inhibit the timely consummation of the Merger, (b) to
directly or indirectly encourage, initiate or cooperate in a stockholders' Vote
or action by consent of IMS's stockholders in opposition to or in competition
with the consummation of the Merger or (c) to become a member of a "group" (as
such term is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of IMS for the purpose of opposing or competing with the
consummation of the Merger; PROVIDED, that the foregoing shall not restrict any
director or officer of IMS from taking any action such director or such officer
reasonably believes after consultation with outside counsel is necessary to
satisfy such director's or such officer's fiduciary duty to stockholders of IMS.
5. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Shares, Options or New Shares.
6. Additional Purchases. Each of the Stockholders agrees that
such Stockholder will not purchase or otherwise acquire beneficial ownership (as
such term is used in Rule 13d-3 of the Exchange Act) of any shares of IMS Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of IMS Common Stock other than the Shares, unless such Stockholder agrees
to deliver to TriZetto immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party
hereto acknowledges that it will be impossible to measure in money the damage to
the other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to
waive any requirement for, the securing or posting of a bond in connection with
any other party's seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the exhibits hereto) supersedes all prior agreements, written or
oral, among the parties hereto with respect to the subject matter hereof and
contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to TriZetto:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
If to a Stockholder, to the address or telecopy number set
forth for such Stockholder on the signature page hereof:
With a copy to:
IMS Health Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy: (000)000-0000
and to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(b) Venue; WAIVER OF JURY TRIAL. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents governed by Delaware law
referred to in this Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding
may not be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal court. The parties hereby consent
to and grant any such court jurisdiction over the person of such parties and
over the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 9 of this Agreement or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10 (b).
(c) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(e) Termination. This Agreement shall terminate upon the
earliest to occur of (i) the Closing, (ii) the termination of the Merger
Agreement and (iii) the date specified in a written agreement duly executed and
delivered by TriZetto and each of the Stockholders.
(f) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(g) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
THE TRIZETTO GROUP, INC.
By: ________________________
Name:
Title:
STOCKHOLDERS:
By: ________________________
Name:
Title:
Address:
Telecopy:
By: ________________________
Name:
Title:
Address:
Telecopy:
EXHIBIT A
STOCKHOLDERS
NAME NUMBER OF SHARES
---- ----------------
EXHIBIT B
STOCKHOLDERS OPTIONS
NAME OPTIONS
---- -------
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxx X. Xxxxxxxx or another representative of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), designated by him and each of them my
proxies, with full power of substitution and resubstitution, (i) to vote all
shares of Common Stock, par value $0.01 per share, of IMS Health Incorporated, a
Delaware corporation ("IMS"), owned by the undersigned (the "Shares") as of the
date hereof at any meetings of stockholders of IMS after the date hereof and at
any adjournment or postponement thereof (each, an "IMS MEETING") FOR approval
and adoption of (a) the Agreement and Plan of Reorganization, dated as of March
__ , 2000 (the "MERGER AGREEMENT"), by and between IMS and TriZetto, and the
transactions contemplated thereby (the "MERGER"), and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or inhibit the timely consummation of the Merger, (b) any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of IMS under the Merger
Agreement, or (c) except for the Merger, any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of IMS or its subsidiaries, and (ii) to withhold consents
with respect to such Shares for (a) any action or agreement that would compete
with, impede, interfere with or tend to discourage the Merger or inhibit the
timely consummation of the Merger, (b) any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation of IMS under the Merger Agreement, or (c) except for the
Merger, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of IMS
or its subsidiaries. This proxy is coupled with an interest, revokes all prior
proxies granted by the undersigned and is irrevocable until such time as the
Voting Agreement, dated as of March __ , 2000, among certain stockholders of
IMS, including the undersigned, and TriZetto, terminates in accordance with its
terms, at which time this proxy shall expire.
Dated March __, 2000
--------------------------------
(Signature of Stockholder)
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxx X. Xxxxxxxx or another representative of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), designated by him and each of them my
proxies, with full power of substitution and resubstitution, (i) to vote the
____________ shares of Common Stock, par value $0.01 per share (the "NEW
SHARES"), of IMS Health Incorporated, a Delaware corporation ("IMS"), purchased
or otherwise acquired by the undersigned, or for which the undersigned has
voluntarily acquired the right to vote or share in the voting of such shares,
since the execution of the Voting Agreement, dated as of March __ , 2000 (the
"VOTING AGREEMENT"), by and among certain stockholders of IMS, including the
undersigned, and TriZetto, at any meetings of stockholders of IMS after the date
hereof and at any adjournment or postponement thereof (each, an "IMS MEETING")
FOR approval and adoption of (a) the Agreement and Plan of Reorganization, dated
as of March __ , 2000 (the "Merger Agreement"), by and between IMS and TriZetto,
and the transactions contemplated thereby (the "Merger"), and AGAINST (a) any
action or agreement that would compete with, impede, interfere with or tend to
discourage the Merger or inhibit the timely consummation of the Merger, (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of IMS under the
Merger Agreement, or (c) except for the Merger, any merger, consolidation,
business combination, reorganization, recapitalization, liquidation or sale or
transfer of any material assets of TriZetto or its subsidiaries, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or inhibit the timely consummation of the Merger, (b) any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of IMS under the Merger
Agreement, or (c) except for the Merger, any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of IMS or its subsidiaries. This proxy is coupled with an
interest and is irrevocable until such time as the Voting Agreement terminates
in accordance with its terms, at which time this proxy shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
Exhibit E to
Agreement and Plan of Reorganization
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE TRIZETTO GROUP, INC.
FIRST: The name of the Corporation is The TriZetto Group, Inc.
SECOND: The registered office of the Corporation in the State
of Delaware is located at No. 0000 Xxxxxx Xxxxxx, in the City of
Wilmington, County of New Castle; and the name of its registered agent
at such address is The Corporation Trust Company.
THIRD: The purposes of the Corporation are to engage in any
lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 1,210,000,000,
consisting of (1) 10,000,000 shares of Preferred Stock, par value $.001
per share ("Preferred Stock"), (2) 800,000,000 shares of Common Stock,
par value $.001 per share ("Common Stock"), and (3) 400,000,000 shares
of Series Common Stock, par value $.001 per share ("Series Common
Stock"). The number of authorized shares of any of the Preferred Stock,
the Common Stock or the Series Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority in voting power of
the stock of the Corporation entitled to vote thereon irrespective of
the provisions of Section 242(b)(2) of the General Corporation Law of
the State of Delaware (or any successor provision thereto), and no vote
of the holders of any of the Preferred Stock, the Common Stock or the
Series Common Stock voting separately as a class shall be required
therefor.
The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of
Preferred Stock, for series of Preferred Stock and, with respect to
each such series, to fix the number of shares constituting such series
and the designation of such series, the voting powers (if any) of the
shares of such series, and the preferences and relative, participating,
optional or other special rights, if any, and any qualifications,
limitations or
restrictions thereof, of the shares of such series. The powers,
preferences and relative, participating, optional and other special
rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of
any and all other series at any time outstanding.
The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of
Series Common Stock, for series of Series Common Stock and, with
respect to each such series, to fix the number of shares constituting
such series and the designation of such series, the voting powers (if
any) of the shares of such series, and the preferences and relative,
participating, optional or other special rights, if any, and any
qualifications, limitations or restrictions thereof, of the shares of
such series. The powers, preferences and relative, participating,
optional and other special rights of each series of Series Common
Stock, and the qualifications, limitations or restrictions thereof, if
any, may differ from those of any and all other series at any time
outstanding.
Each holder of Common Stock, as such, shall be entitled to one
vote for each share of Common Stock held of record by such holder on
all matters on which stockholders generally are entitled to vote;
provided, however, that, except as otherwise required by law, holders
of Common Stock, as such, shall not be entitled to vote on any
amendment to this Amended and Restated Certificate of Incorporation
(including any certificate of designations relating to any series of
Preferred Stock or Series Common Stock) that relates solely to the
terms of one or more outstanding series of Preferred Stock or Series
Common Stock if the holders of such affected series are entitled,
either separately or together with the holders of one or more other
such series, to vote thereon pursuant to this Amended and Restated
Certificate of Incorporation (including any certificate of designations
relating to any series of Preferred Stock or Series Common Stock) or
pursuant to the General Corporation Law of the State of Delaware.
Except as otherwise required by law, holders of a series of
Preferred Stock or Series Common Stock, as such, shall be entitled only
to such voting rights, if any, as shall expressly be granted thereto by
this Amended and Restated Certificate of Incorporation (including any
certificate of designations relating to such series).
Subject to applicable law and the rights, if any, of the
holders of any outstanding series of Preferred Stock or Series Common
Stock or any class or series of stock having a preference over or the
right to participate with the Common Stock with respect to the payment
of dividends, dividends may be
declared and paid on the Common Stock at such times and in such amounts
as the Board of Directors in its discretion shall determine.
Upon the dissolution, liquidation or winding up of the
Corporation, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock or Series Common Stock or any
class or series of stock having a preference over or the right to
participate with the Common Stock with respect to the distribution of
assets of the Corporation upon such dissolution, liquidation or winding
up of the Corporation, the holders of the Common Stock, as such, shall
be entitled to receive the assets of the Corporation available for
distribution to its stockholders ratably in proportion to the number of
shares held by them.
FIFTH: The Board of Directors shall be authorized to make,
amend, alter, change, add to or repeal the By-Laws of the Corporation
in any manner not inconsistent with the laws of the State of Delaware,
subject to the power of the stockholders to amend, alter, change, add
to or repeal the By-Laws made by the Board of Directors.
Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80 percent in voting power of all the shares of
the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required in
order for the stockholders to alter, amend or repeal any provision of
the By-Laws which is to the same effect as Article Fifth, Article
Seventh, and Article Eighth of this Amended and Restated Certificate of
Incorporation or to adopt any provision inconsistent therewith.
SIXTH: To the fullest extent permitted by the laws of the
State of Delaware:
The Corporation shall indemnify any person (and such person's
heirs, executors or administrators) who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (brought in the right of the Corporation or
otherwise), whether civil, criminal, administrative or investigative,
and whether formal or informal, including appeals, by reason of the
fact that such person is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or
was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company or other
enterprise, for and against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or such heirs, executors or administrators in
connection with such action, suit or proceeding, including appeals.
Notwithstanding the
preceding sentence, the Corporation shall be required to indemnify a
person described in such sentence in connection with any action, suit
or proceeding (or part thereof) commenced by such person only if the
commencement of such action, suit or proceeding (or part thereof) by
such person was authorized by the Board of Directors of the
Corporation. The Corporation may indemnify any person (and such
person's heirs, executors or administrators) who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (brought in the right of the
Corporation or otherwise), whether civil, criminal, administrative or
investigative, and whether formal or informal, including appeals, by
reason of the fact that such person is or was an employee or agent of
the Corporation or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, limited liability
company or other enterprise, for and against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person or such heirs,
executors or administrators in connection with such action, suit or
proceeding, including appeals.
The Corporation shall promptly pay expenses incurred by any
person described in the first sentence of subsection (a) of this
Article Sixth, Section (1) in defending any action, suit or proceeding
in advance of the final disposition of such action, suit or proceeding,
including appeals, upon presentation of appropriate documentation.
The Corporation may purchase and maintain insurance on behalf
of any person described in subsection (a) of this Article Sixth,
Section (1) against any liability asserted against such person, whether
or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article Sixth,
Section (1) or otherwise.
The provisions of this Article Sixth, Section (1) shall be
applicable to all actions, claims, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after its adoption. The provisions
of this Article Sixth, Section (1) shall be deemed to be a contract
between the Corporation and each director or officer who serves in such
capacity at any time while this Article Sixth, Section (1) and the
relevant provisions of the laws of the State of Delaware and other
applicable law, if any, are in effect, and any repeal or modification
hereof shall not affect any rights or obligations then existing with
respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter
brought or threatened based in whole or in part on any such state of
facts. If any
provision of this Article Sixth, Section (1) shall be found to be
invalid or limited in application by reason of any law or regulation,
it shall not affect the validity of the remaining provisions hereof.
The rights of indemnification provided in this Article Sixth, Section
(1) shall neither be exclusive of, nor be deemed in limitation of, any
rights to which an officer, director, employee or agent may otherwise
be entitled or permitted by contract, this Amended and Restated
Certificate of Incorporation, vote of stockholders or directors or
otherwise, or as a matter of law, both as to actions in such person's
official capacity and actions in any other capacity while holding such
office, it being the policy of the Corporation that indemnification of
any person whom the Corporation is obligated to indemnify pursuant to
the first sentence of subsection (a) of this Article Sixth, Section (1)
shall be made to the fullest extent permitted by law.
For purposes of this Article Sixth, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries.
A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the General
Corporation Law of the State of Delaware as the same exists or may
hereafter be amended. Any amendment, modification or repeal of the
foregoing sentence shall not adversely affect any right or protection
of a director of the Corporation hereunder in respect of any act or
omission occurring prior to the time of such amendment, modification or
repeal.
SEVENTH: The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of
not less than three directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote
of a majority of the Board of Directors. The directors shall be divided
into three classes designated Class I, Class II and Class III. Each
class shall consist, as nearly as possible, of one-third of the total
number of directors constituting the entire Board of Directors. Upon,
or as soon as practicable following, the filing of the Delaware
Certificate of Merger to which this Amended and Restated Certificate of
Incorporation is attached, Class I directors shall be elected for a
term expiring at the succeeding annual meeting of stockholders, Class
II directors shall be elected for a term expiring at the second
succeeding annual meeting of stockholders, and Class III directors
shall be elected for a term expiring at the third succeeding annual
meeting of stockholders. At each annual meeting of stockholders,
successors to the class of directors whose term expires at that annual
meeting shall be elected for a term expiring at the third succeeding
annual meeting. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a newly created
directorship resulting from an increase in such class shall hold office
for a term that shall coincide with the remaining term of that class,
but in no case shall a decrease in the number of directors remove or
shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or
removal from office. Any newly created directorship on the Board of
Directors that results from an increase in the number of directors and
any vacancy occurring in the Board of Directors shall be filled only by
a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. If any applicable provision of
the General Corporation Law of the State of Delaware expressly confers
power on stockholders to fill such a directorship at a special meeting
of stockholders, such a directorship may be filled at such meeting only
by the affirmative vote of at least 80 percent of the voting power of
all shares of the Corporation entitled to vote generally in the
election of directors voting as a single class. Any director elected to
fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his
predecessor. Directors may be removed only for cause, and only by the
affirmative vote of at least 80 percent in voting power of all shares
of the Corporation entitled to vote generally in the election of
directors, voting as a single class.
Notwithstanding the foregoing, whenever the holders of any one
or more series of Preferred Stock or Series Common Stock issued by the
Corporation shall have the right, voting separately as a series or
separately as a class with one or more such other series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, removal, filling of vacancies and other
features of such directorships shall be governed by the terms of this
Amended and Restated Certificate of Incorporation (including any
certificate of designations relating to any series of Preferred Stock
or Series Common Stock) applicable thereto, and such directors so
elected shall not be divided into classes pursuant to this Article
Seventh unless expressly provided by such terms.
EIGHTH: Any action required or permitted to be taken by the
holders of the Common Stock of the Corporation must be effected at a
duly called annual or special meeting of such holders and may not be
effected by any consent in writing by such holders. Except as otherwise
required by law and subject to the rights of the holders of any series
of Preferred Stock or Series Common Stock, special meetings of
stockholders of the Corporation may be called only by the Chief
Executive Officer of the Corporation or by the Board of Directors
pursuant to a resolution approved by the Board of Directors.
NINTH: Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80 percent in voting power of all the
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to
alter, amend or repeal Article Fifth, Article Seventh, Article Eighth
or this Article Ninth or to adopt any provision inconsistent therewith.
Exhibit F to
Agreement and Plan of Reorganization
AMENDED AND RESTATED
BY-LAWS
OF
THE TRIZETTO GROUP, INC.
-----------------------
ARTICLE I.
STOCKHOLDERS
Section 1. The annual meeting of the stockholders of the
corporation for the purpose of electing directors and for the transaction of
such other business as may properly be brought before the meeting shall be held
on such date, and at such time and place within or without the State of Delaware
as may be designated from time to time by the Board of Directors.
Section 2. Special meetings of the stockholders shall be
called at any time by the Secretary or any other officer, whenever directed by
the Board of Directors or by the Chief Executive Officer. The purpose or
purposes of the proposed meeting shall be included in the notice setting forth
such call.
Section 3. Except as otherwise provided by law, notice of the
time, place and, in the case of a special meeting, the purpose or purposes of
the meeting of stockholders shall be delivered personally or mailed not earlier
than sixty, nor less than ten days previous thereto, to each stockholder of
record entitled to vote at the meeting at such address as appears on the records
of the corporation.
Section 4. The holders of a majority in voting power of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
statute or by the Restated Certificate of Incorporation; but if at any regularly
called meeting of stockholders there be less than a
quorum present, the stockholders present may adjourn the meeting from time to
time without further notice other than announcement at the meeting until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if, after the adjournment, a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 5. The Chairman of the Board, or in the Chairman's
absence or at the Chairman's direction, the President, or in the President's
absence or at the President's direction, any officer of the corporation shall
call all meetings of the stockholders to order and shall act as Chairman of such
meeting. The Secretary of the corporation or, in such officer's absence, an
Assistant Secretary shall act as secretary of the meeting. If neither the
Secretary nor an Assistant Secretary is present, the Chairman of the meeting
shall appoint a secretary of the meeting. Unless otherwise determined by the
Board of Directors prior to the meeting, the Chairman of the meeting shall
determine the order of business and shall have the authority in his or her
discretion to regulate the conduct of any such meeting, including, without
limitation, by imposing restrictions on the persons (other than stockholders of
the corporation or their duly appointed proxies) who may attend any such
meeting, whether any stockholder or stockholders' proxy may be excluded from any
meeting of stockholders based upon any determination by the Chairman, in his or
her sole discretion, that any such person has unduly disrupted or is likely to
disrupt the proceedings thereat, and the circumstances in which any person may
make a statement or ask questions at any meeting of stockholders. The Chairman
of the meeting shall have authority to adjourn any meeting of stockholders.
Section 6. At all meetings of stockholders, any stockholder
entitled to vote thereat shall be entitled to vote in person or by proxy, but no
proxy shall be voted after three years from its date, unless such proxy provides
for a longer period. Without limiting the manner in which a stockholder may
authorize another person or persons to act for the stockholder as proxy pursuant
to the General Corporation Law of the State of Delaware, the following shall
constitute a valid means by which a stockholder may grant such authority: (1) a
stockholder may execute a writing authorizing another person or persons to act
for the stockholder as proxy, and execution of the writing may be accomplished
by the stockholder or the stockholder's authorized officer, director, employee
or agent signing such writing or causing his or her signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature; or (2) a stockholder may authorize another person or persons to act
for the stockholder as proxy by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like
agent duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder. If it is
determined that such telegrams, cablegrams or other electronic transmissions are
valid, the judge or judges of stockholder votes or, if there are no such judges,
such other persons making that determination shall specify the information upon
which they relied.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to the preceding
paragraph of this Section 6 may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing
or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Proxies shall be filed with the Secretary of the meeting prior
to or at the commencement of the meeting to which they relate.
Section 7. When a quorum is present at any meeting, the vote
of the holders of a majority in voting power of the stock present in person or
represented by proxy and entitled to vote on the matter shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of statute or of the Amended and Restated Certificate of
Incorporation or these By-Laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 8. In order that the corporation may determine the
stockholders (a) entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or (b) entitled to consent to corporate action in
writing without a meeting, or (c) entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date (i) in the case of
clause (a) above, shall not be more than sixty nor less than ten days before the
date of such meeting, (ii) in the case of clause (b) above, shall not be more
than ten days after the date upon which the resolution fixing the record date is
adopted by the board of directors, and (iii) in the case of clause (c) above,
shall not be more than sixty days prior to such action. If for any reason the
Board of Directors shall not have fixed a record date for any such purpose, the
record date for such purpose shall be determined as provided by law. Only those
stockholders of record on the date so fixed or determined shall be entitled to
any of the foregoing rights, notwithstanding the transfer of any such stock on
the books of the corporation after any such record date so fixed or determined.
Section 9. The officer who has charge of the stock ledger of
the corporation shall prepare and make at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of meeting,
or, if not so specified, at the place where the meeting is to be held. The list
shall also be produced at the time and kept at the place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
Section 10. The Board of Directors, in advance of all meetings
of the stockholders, shall appoint one or more judges of stockholder votes, who
may be stockholders or their proxies, but not directors of the corporation or
candidates for office. In the event that the Board of Directors fails to so
appoint judges of stockholder votes or, in the event that one or more judges of
stockholder votes previously designated by the Board of Directors fails to
appear or act at the meeting of stockholders, the Chairman of the meeting may
appoint one or more judges of stockholder votes to fill such vacancy or
vacancies. Judges of stockholder votes appointed to act at any meeting of the
stockholders, before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of judge of stockholder votes with strict
impartiality and according to the best of their ability and the oath so taken
shall be subscribed by them. Judges of stockholder votes shall, subject to the
power of the Chairman of the meeting to open and close the polls, take charge of
the polls, and, after the voting, shall make a certificate of the result of the
vote taken.
Section 11. (A) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (a) pursuant
to the corporation's notice of meeting delivered pursuant to Article 1, Section
3 of these By-Laws, (b) by or at the direction of the Chairman of the Board or
(c) by any stockholder of the corporation who is entitled to vote at the
meeting, who complied with the notice procedures set forth in subparagraphs (2)
and (3) of this paragraph (A) of this By-Law and who was a
stockholder of record at the time such notice is delivered to the Secretary of
the corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A) (1) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation, and, in the case of business other
than nominations, such other business must be a proper matter for stockholder
action. To be timely, a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the corporation not less than seventy days
nor more than ninety days prior to the first anniversary of the preceding year's
annual meeting; PROVIDED, HOWEVER, that in the event that the date of the annual
meeting is advanced by more than twenty days, or delayed by more than seventy
days, from such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the ninetieth day prior to such annual meeting and
not later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A) (2) of this By-Law to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the corporation is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
corporation at least eighty days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the
tenth day following the day on which such public announcement is first made by
the corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting pursuant to
Article I, Section 2 of these By-Laws. Nominations of persons for election to
the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
the corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in this By-Law and who is a stockholder of record at
the time such notice is delivered to the Secretary of the corporation.
Nominations by stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the stockholder's
notice as required by paragraph (A) (2) of this By-Law shall be delivered to the
Secretary at the principal executive offices of the corporation not earlier than
the ninetieth day prior to such special meeting and not later than the close of
business on the later of the seventieth day prior to such special meeting or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(C) GENERAL. (1) Only persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Amended and
Restated Certificate of Incorporation or these By-Laws, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in this By-Law and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that such defective
nomination shall be disregarded or that such proposed business shall not be
transacted.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Xxxxx News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) For purposes of this By-Law, no adjournment nor notice of
adjournment of any meeting shall be deemed to constitute a new notice of such
meeting
for purposes of this Section 11, and in order for any notification required to
be delivered by a stockholder pursuant to this Section 11 to be timely, such
notification must be delivered within the periods set forth above with respect
to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. The Board of Directors of the corporation shall
consist of such number of directors, not less than three, as shall from time to
time be fixed exclusively by resolution of the Board of Directors. The directors
shall be divided into three classes in the manner set forth in the Amended and
Restated Certificate of Incorporation of the corporation, each class to be
elected for the term set forth therein. Directors shall (except as hereinafter
provided for the filling of vacancies and newly created directorships) be
elected by the holders of a plurality of the voting power present in person or
represented by proxy and entitled to vote. A majority of the total number of
directors then in office (but not less than one-third of the number of directors
constituting the entire Board of Directors) shall constitute a quorum for the
transaction of business and, except as otherwise provided by law or by the
corporation's Amended and Restated Certificate of Incorporation, the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. Directors need not be stockholders.
Section 2. Newly created directorships in the Board of
Directors that result from an increase in the number of directors and any
vacancy occurring in the Board of Directors shall be filled only by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director; and the directors so chosen shall hold office for a term as
set forth in the Amended and Restated Certificate of Incorporation of the
corporation. If any applicable provision of the General Corporation Law of the
State of Delaware expressly confers power on stockholders to fill such a
directorship at a special meeting of stockholders, such a directorship may be
filled at such meeting only by the affirmative vote of at least 80 percent in
voting power of all shares of the corporation entitled to vote generally in the
election of directors, voting as a single class.
Section 3. Meetings of the Board of Directors shall be held at
such place within or without the State of Delaware as may from time to time be
fixed by resolution of the Board or as may be specified in the notice of any
meeting. Regular meetings of the Board of Directors shall be held at such times
as may from time to time be fixed by resolution of the Board and special
meetings may be held at any time upon the call of the Chairman of the Board or
the President, by oral, or written notice including, telegraph, telex or
transmission of a telecopy, e-mail or other means of transmission, duly served
on or sent or mailed to each director to such director's address or telecopy
number as shown on the books of the corporation not less than one day before the
meeting. The notice of any meeting need not specify the purposes thereof. A
meeting of the Board may be held without notice immediately after the annual
meeting of stockholders at the same place at which such meeting is held. Notice
need not be given of regular meetings of the Board held at times fixed by
resolution of the Board. Notice of any meeting need not be given to any director
who shall attend such meeting in person (except when the director attends a
meeting for the express purpose of objecting at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened), or who shall waive notice thereof, before or after such meeting, in
writing.
Section 4. Notwithstanding the foregoing, whenever the holders
of any one or more series of Preferred Stock or Series Common Stock issued by
the corporation shall have the right, voting separately by series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, removal, filling of vacancies and other features of such directorships
shall be governed by the terms of the Amended and Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to Article SEVENTH of the Amended and Restated
Certificate of Incorporation unless expressly provided by such terms. The number
of directors that may be elected by the holders of any such series of Preferred
Stock or Series Common Stock shall be in addition to the number fixed by or
pursuant to the By-Laws. Except as otherwise expressly provided in the terms of
such series, the number of directors that may be so elected by the holders of
any such series of stock shall be elected for terms expiring at the next annual
meeting of stockholders and without regard to the classification of the members
of the Board of Directors as set forth in Section 1 hereof, and vacancies among
directors so elected by the separate vote of the holders of any such series of
Preferred Stock or Series Common Stock shall be filled by the affirmative vote
of a majority of the remaining directors elected by such series, or, if there
are no such remaining directors, by the holders of such series in the same
manner in which such series initially elected a director.
Section 5. If at any meeting for the election of directors,
the corporation has outstanding more than one class of stock, and one or more
such classes or series thereof are entitled to vote separately as a class, and
there shall be a quorum of only one
such class or series of stock, that class or series of stock shall be entitled
to elect its quota of directors notwithstanding absence of a quorum of the other
class or series of stock.
Section 6. The Board of Directors may designate three or more
directors to constitute an executive committee, one of whom shall be designated
Chairman of such committee. The members of such committee shall hold such office
until the next election of the Board of Directors and until their successors are
elected and qualify. Any vacancy occurring in the committee shall be filled by
the Board of Directors. Regular meetings of the committee shall be held at such
times and on such notice and at such places as it may from time to time
determine. The committee shall act, advise with and aid the officers of the
corporation in all matters concerning its interest and the management of its
business, and shall generally perform such duties and exercise such powers as
may from time to time be delegated to it by the Board of Directors, and shall
have authority to exercise all the powers of the Board of Directors, so far as
may be permitted by law, in the management of the business and the affairs of
the corporation whenever the Board of Directors is not in session or whenever a
quorum of the Board of Directors fails to attend any regular or special meeting
of such Board. The committee shall have power to authorize the seal of the
corporation to be affixed to all papers which are required by the Delaware
General Corporation Law to have the seal affixed thereto. The fact that the
executive committee has acted shall be conclusive evidence that the Board of
Directors was not in session at such time or that a quorum of the Board had
failed to attend the regular or special meeting thereof.
The executive committee shall keep regular minutes of its
transactions and shall cause them to be recorded in a book kept in the office of
the corporation designated for that purpose, and shall report the same to the
Board of Directors at their regular meeting. The committee shall make and adopt
its own rules for the government thereof and shall elect its own officers.
Section 7. The Board of Directors may from time to time
establish such other committees to serve at the pleasure of the Board which
shall be comprised of such members of the Board and have such duties as the
Board shall from time to time establish. Any director may belong to any number
of committees of the Board. The Board may also establish such other committees
with such members (whether or not directors) and such duties as the Board may
from time to time determine.
Section 8. Unless otherwise restricted by the Amended and
Restated Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 9. The members of the Board of Directors or any
committee thereof may participate in a meeting of such Board or committee, as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this subsection shall
constitute presence in person at such a meeting.
Section 10. The Board of Directors may establish policies for
the compensation of directors and for the reimbursement of the expenses of
directors, in each case, in connection with services provided by directors to
the corporation.
ARTICLE III.
OFFICERS
Section 1. The Board of Directors, as soon as may be after
each annual meeting of the stockholders, shall elect officers of the
corporation, including a Chairman of the Board or President and a Secretary. The
Board of Directors may also from time to time elect such other officers
(including one or more Vice Presidents, a Treasurer, one or more Assistant Vice
Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers) as it may deem proper or may delegate to any elected officer of the
corporation the power to appoint and remove any such other officers and to
prescribe their respective terms of office, authorities and duties. Any Vice
President may be designated Executive, Senior or Corporate, or may be given such
other designation or combination of designations as the Board of Directors may
determine. Any two or more offices may be held by the same person.
Section 2. All officers of the corporation elected by the
Board of Directors shall hold office for such term as may be determined by the
Board of Directors or until their respective successors are chosen and
qualified. Any officer may be removed from office at any time either with or
without cause by the affirmative vote of a majority of the members of the Board
then in office, or, in the case of appointed officers, by any elected officer
upon whom such power of removal shall have been conferred by the Board of
Directors.
Section 3. Each of the officers of the corporation elected by
the Board of Directors or appointed by an officer in accordance with these
By-laws shall have the powers and duties prescribed by law, by the By-Laws or by
the Board of Directors and, in
the case of appointed officers, the powers and duties prescribed by the
appointing officer, and, unless otherwise prescribed by the By-Laws or by the
Board of Directors or such appointing officer, shall have such further powers
and duties as ordinarily pertain to that office. The Chairman of the Board or
the President, as determined by the Board of Directors, shall be the Chief
Executive Officer and shall have the general direction of the affairs of the
corporation.
Section 4. Unless otherwise provided in these By-Laws, in the
absence or disability of any officer of the corporation, the Board of Directors
may, during such period, delegate such officer's powers and duties to any other
officer or to any director and the person to whom such powers and duties are
delegated shall, for the time being, hold such office.
ARTICLE IV.
CERTIFICATES OF STOCK
Section 1. The shares of stock of the corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the corporation's stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation by
the Chairman of the Board of Directors, or the President or a Vice President,
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation, or as otherwise permitted by law, representing the
number of shares registered in certificate form. Any or all the signatures on
the certificate may be a facsimile.
Section 2. Transfers of stock shall be made on the books of
the corporation by the holder of the shares in person or by such holder's
attorney upon surrender and cancellation of certificates for a like number of
shares, or as otherwise provided by law with respect to uncertificated shares.
Section 3. No certificate for shares of stock in the
corporation shall be issued in place of any certificate alleged to have been
lost, stolen or destroyed, except upon production of such evidence of such loss,
theft or destruction and upon delivery to the corporation of a bond of indemnity
in such amount, upon such terms and secured by such surety, as the Board of
Directors in its discretion may require.
ARTICLE V.
CORPORATE BOOKS
The books of the corporation may be kept outside of the State
of Delaware at such place or places as the Board of Directors may from time to
time determine.
ARTICLE VI.
CHECKS, NOTES, PROXIES, ETC.
All checks and drafts on the corporation's bank accounts and
all bills of exchange and promissory notes, and all acceptances, obligations and
other instruments for the payment of money, shall be signed by such officer or
officers or agent or agents as shall be hereunto authorized from time to time by
the Board of Directors. Proxies to vote and consents with respect to securities
of other corporations owned by or standing in the name of the corporation may be
executed and delivered from time to time on behalf of the corporation by the
Chairman of the Board, the President, or by such officers as the Board of
Directors may from time to time determine.
ARTICLE VII.
FISCAL YEAR
The fiscal year of the corporation shall begin on the first
day of January in each year and shall end on the thirty-first day of December
following.
ARTICLE VIII.
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of
the corporation. In lieu of the corporate seal, when so authorized by the Board
of Directors or a duly empowered committee thereof, a facsimile thereof may be
impressed or affixed or reproduced.
ARTICLE IX.
AMENDMENTS
These By-Laws may be amended, added to, rescinded or repealed
at any meeting of the Board of Directors or of the stockholders, provided notice
of the proposed change was given in the notice of the meeting of the
stockholders or, in the case of a meeting of the Board of Directors, in a notice
given not less than two days prior to the meeting; provided, however, that,
notwithstanding any other provisions of these By-Laws or any provision of law
which might otherwise permit a lesser vote of the stockholders, the affirmative
vote of the holders of at least 80 percent in voting power of all shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required in order for the stockholders to
alter, amend or repeal Section 2 and Section 11 of Article I, Sections 1 and 2
of Article II or this proviso to this Article IX of these By-Laws or to adopt
any provision inconsistent with any of such Sections or with this proviso.
