AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 5, 2001 (the
"Agreement"), by and among Cerner Corporation, a Delaware corporation
("Cerner"), Cerner Holdings, Inc., a Delaware corporation and a wholly-owned
subsidiary of Cerner ("Merger Sub"), and Dynamic Healthcare Technologies, Inc.,
a Florida corporation ("DHT").
R E C I T A L S:
WHEREAS, the respective Boards of Directors of Cerner, DHT and Merger Sub
have determined that the merger of DHT with and into Merger Sub (the "Merger"),
upon the terms and subject to the conditions set forth in this Agreement, would
be fair and in the best interests of their respective stockholders, and such
Boards of Directors have approved such Merger, pursuant to which each issued and
outstanding share of common stock, par value $0.01 per share, of DHT (the
"Common Stock ") (other than (a) Common Stock owned, directly or indirectly, by
Cerner or any Subsidiary of Cerner and (b) Common Stock held in treasury by DHT)
will be converted into the right to receive shares of Cerner Common Stock as
provided herein and each issued and outstanding share of DHT Preferred Stock
will be redeemed as provided herein; and
WHEREAS, in accordance with applicable law and the Articles of
Incorporation and Bylaws of DHT, approval of the Merger and this Agreement
require the affirmative vote of a majority of the outstanding shares of Common
Stock entitled to vote thereon and of a majority of the shares of DHT Preferred
Stock, each voting as a separate class (the "DHT Shareholder Approval"); and
WHEREAS, Cerner, DHT and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the capitalized terms used in this
Agreement shall have the meanings specified or referred to in Appendix I hereto
which is incorporated herein by reference.
ARTICLE II
THE MERGER
SECTION 2.1. EFFECT OF THE MERGER.
(a) THE MERGER. Upon the terms and subject to the conditions of this
Agreement and in accordance with the General Corporation Law of the State
of Delaware
1
(the "Delaware Law") and Florida Business Corporation Act (the "Florida
Law"), at the Effective Time DHT shall be merged with and into Merger
Sub. As a result of the Merger, the separate corporate existence of DHT
shall cease and Merger Sub, which shall remain a wholly-owned
Subsidiary of Cerner, shall continue as the surviving corporation of
the Merger (the "Surviving Corporation") and shall continue to be
governed by Delaware Law.
(b) EFFECTIVE TIME. On the Closing Date of the Merger, Merger Sub
and DHT shall cause (i) the Certificate of Merger ("Certificate of
Merger"), in substantially the form attached hereto as Exhibit A, and (ii)
the Articles of Merger for the Merger ("Articles of Merger"), in
substantially the form attached hereto as Exhibit B, meeting the
requirements of the Delaware Law and the Florida Law, respectively, to be
properly executed and filed. The Merger shall become effective on the date
and at the time on which the Certificate of Merger and the Articles of
Merger shall have been accepted for filing by the Secretary of State of
the State of Delaware and the Secretary of State of the State of Florida,
respectively, or such later date and time as agreed upon in writing by
DHT, Merger Sub, and Cerner and specified in both the Certificate of
Merger and the Articles of Merger (such time and date being referred to
herein as the "Effective Time"). Subject to the terms and conditions of
this Agreement, on and after the Closing Date the parties hereto agree to
take all such further actions as may be required by law to make the Merger
effective.
(c) THE CLOSING. The Closing of the Merger and transactions
contemplated by this Agreement will take place at 10:00 a.m. on the third
Business Day following the Determination Date, or at such other date and
time as the parties may mutually agree. The Closing shall take place at
the offices of Xxxxxxx, Mag & Fizzell, P.C., at 0000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx, or such other place as may be mutually agreed
upon by the parties hereto.
(d) EFFECTS OF THE MERGER. From and after the Effective Time, the
Merger will have the effects set forth in the Delaware Law and the Florida
Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of Merger Sub and DHT shall be vested in the
Surviving Corporation, and all debts, liabilities and duties of Merger Sub
and DHT shall become the debts, liabilities and duties of the Surviving
Corporation. In addition, the Merger shall have the following effects:
(i) CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Merger Sub as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the
Surviving Corporation; provided that Article First thereof shall be
amended, effective as of the Effective Time, to provide that the
name of the Surviving Corporation shall be changed to a name to be
determined by Cerner.
(ii) BYLAWS. The Bylaws of Merger Sub as in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving
Corporation.
2
(iii) BOARD OF DIRECTORS. The directors of Merger Sub at the
Effective Time shall be the initial directors of the Surviving
Corporation, until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as
the case may be.
(iv) OFFICERS. The officers of Merger Sub at the Effective
Time shall be the initial officers of the Surviving Corporation,
until the earlier of their resignation or removal or until their
respective successors are duly elected or appointed and qualified,
as the case may be.
(e) EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue
of the Merger and without any action on the part of the parties hereto
or their respective stockholders:
(i) COMMON STOCK. With respect to each holder of record of
Common Stock outstanding immediately prior to the Effective Time and
subject to Section 2.1(e)(v) relating to fractional shares
(excluding shares to be canceled pursuant to Section 2.1(e)(iii) of
this Agreement), the shares of Common Stock held by such holder
shall cease to be outstanding and shall be converted into the right
to receive that number of shares of Cerner Common Stock determined
by multiplying the number of such shares of Common Stock times the
Exchange Ratio (the "Merger Consideration").
(ii) PREFERRED STOCK. With respect to each holder of record of
Preferred Stock outstanding immediately prior to the Effective Time,
the shares of Preferred Stock held by such holder shall be redeemed
at a price per share of Preferred Stock equal to $2.00 in cash, plus
all unpaid accrued dividends to which holders of Preferred Stock are
entitled to receive pursuant to the Articles of Incorporation of DHT
(the "Preferred Stock Merger Consideration").
(iii) DHT STOCK HELD BY CERNER, MERGER SUB AND DHT. Each share
of Common Stock held by DHT as treasury stock or owned by Cerner,
Merger Sub or any Cerner or DHT Subsidiaries immediately prior to
the Effective Time shall be cancelled without payment of any
consideration therefor and shall cease to exist.
(iv) MERGER SUB COMMON STOCK. Each share of common stock of
Merger Sub outstanding and each share held in treasury immediately
prior to the Effective Time shall remain outstanding and be
unaffected by the Merger.
(v) FRACTIONAL SHARES. Notwithstanding any other provision of
this Agreement, no fraction of a share of Cerner Common Stock shall
be issued in connection with the conversion of Common Stock in the
Merger and the distribution of Cerner Common Stock in respect
thereof. Each holder of shares of Common Stock exchanged pursuant to
the Merger who otherwise would have been entitled to receive a
fraction of a share of Cerner Common Stock (after taking into
account all certificates delivered by such holder) shall receive, in
lieu thereof a cash payment (without interest and subject to the
payment of any
3
applicable withholding Taxes) in an amount equal to such fractional
part of a share of Cerner Common Stock multiplied by the Average
Cerner Stock Price.
(f) STOCK OPTIONS AND OTHER STOCK COMPENSATION.
(i) At the Effective Time, each award, option, warrant or
other right to purchase or acquire Common Stock pursuant to any
warrants, stock awards, stock options or stock appreciation rights
granted under any DHT Employee Plans (as defined in Section 4.13(a)
herein) (other than DHT's 401(k) Plan, which will receive the
consideration set forth in Section 2.1(e)(i) of this Agreement) or
otherwise as listed on Section 2.1(f) of the DHT Disclosure Schedule
(collectively, the "Stock Rights") prior to the Effective Time and
which remains outstanding immediately after the Effective Time,
whether or not vested or exercisable, without any action on the part
of the holder thereof, shall cease to represent a right with respect
to shares of Common Stock and shall be converted into and become
rights with respect to Cerner Common Stock, and Cerner shall assume
each Stock Right on the same terms and conditions as were applicable
under such Stock Right (but taking into account any changes thereto
(except that there shall be no acceleration in the vesting or
exercisability of such option, right or incentive compensation by
reason of this Agreement, the Merger or the other matters
contemplated by this Agreement other than existing agreements which
by their terms provide for acceleration, which agreements are set
forth in Section 2.1(f) of the DHT Disclosure Schedule indicating
the optionees thereof), provided for in the DHT Employee Plans or in
the terms of such right by reason of this Agreement or the
transactions contemplated hereby), with respect to that number of
shares of Cerner Common Stock determined by multiplying the number
of shares of Common Stock subject to such Stock Right, times the
Exchange Ratio, rounded, if necessary, to the nearest whole share of
Cerner Common Stock, at (in the case of a stock option or stock
appreciation right) a price per share (rounded to the nearest
one-hundredth of a cent) determined by dividing the per-share
exercise price specified in such stock option or stock appreciation
right, as applicable, by the Exchange Ratio. In addition,
notwithstanding anything to the contrary in this Section 2.1(f),
each Stock Right which is an "incentive stock option" under Section
422 of the Code shall be adjusted as required by Section 424 of the
Code, and the regulations promulgated thereunder, so as not to
constitute a modification, extension, or renewal of the option,
within the meaning of Section 424(h) of the Internal Revenue Code.
Cerner agrees to take all necessary steps to effectuate the
foregoing provisions of this Section 2.1(f)(i).
(ii) As soon as practicable after the Effective Time, Cerner
shall deliver to the holders of Stock Rights appropriate notices
setting forth such holders' rights pursuant thereto and the grants
pursuant to the DHT Employee Plans shall continue in effect on the
same terms and conditions (subject to the adjustments required by
Section 2.1(f)(i) of this Agreement) after giving effect to the
Merger, and Cerner shall comply with the terms of the Stock Rights
and the DHT Employee Plans to ensure, to the extent required by, and
subject to the provisions of, such DHT Employee Plan, that the Stock
Rights which qualified as
4
incentive stock options prior to the Effective Time continue to
qualify as incentive stock options after the Effective Time.
(iii) At or prior to the Effective Time, Cerner shall take all
corporate action necessary to reserve for issuance a sufficient
number of shares of Cerner Common Stock for delivery upon exercise
of Stock Rights in accordance with this Section 2.1(f). Promptly
after the Effective Time, Cerner shall file a registration
statement(s) on Form S-8 with respect to the shares of Cerner Common
Stock subject to such stock options or other stock related rights or
other forms of stock related incentive or deferred compensation, and
shall use commercially reasonable efforts to maintain the
effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such stock options or
other stock related rights or other forms of stock related incentive
or deferred compensation remain outstanding. With respect to those
individuals who subsequent to the Merger will be subject to the
reporting requirements under Section 16(a) of the Exchange Act,
where applicable, Cerner shall administer the DHT Employee Plans in
a manner consistent with the exemptions provided by Rule 16b-3
promulgated under the Exchange Act.
(iv) Prior to the Effective Time, DHT will make any amendments
to the terms of the DHT Employee Plans that are necessary to give
effect to the transactions contemplated by this Section 2.1(f).
(g) CERTAIN ADJUSTMENTS. If, between the date of this Agreement and
the Effective Time, the number of issued and outstanding shares of Cerner
Common Stock shall have been changed into a different number of shares or
different class by reason of any reclassification, recapitalization, stock
split, reverse stock split, combination or exchange of shares, or a stock
dividend or dividend payable in any other securities shall be declared
with a record date (in the case of a stock dividend) or an effective date
(in the case of a stock split or combination or similar recapitalization
for which a record date is not set) within such period, or any similar
event shall have occurred, the Merger Consideration and Exchange Ratio
shall each be proportionately adjusted to prevent any dilutive effect to
the stockholders of DHT which would otherwise result from any such
transaction on a percentage of ownership basis.
SECTION 2.2. SURRENDER OF CERTIFICATES.
(a) Cerner and Merger Sub hereby appoint the Exchange Agent to act
as the exchange agent in connection with the Merger. Except as otherwise
provided in this Article II, from and after the Effective Time, (i) each
holder of a certificate that immediately prior to the Effective Time
represented outstanding shares of Common Stock (collectively, the "Common
Certificates") shall be entitled to receive in exchange therefor, upon
surrender thereof to the Exchange Agent, a certificate or certificates
representing the number of whole shares of Cerner Common Stock into which
such holder's shares were converted in the Merger pursuant to Section
2.1(e)(i) of this Agreement, and (ii) each holder of a certificate that
immediately prior to the Effective
5
Time represented outstanding shares of Preferred Stock (collectively,
the "Preferred Certificates") shall be entitled to receive cash in an
amount equal to the cash consideration to which such holder is entitled
to receive pursuant to Section 2.1(e)(ii) of this Agreement. Prior to
the Effective Time, Cerner will deliver or cause to be delivered to the
Exchange Agent, in trust for the benefit of the holders of Common Stock
and Preferred Stock, certificates representing Cerner Common Stock and
cash in such amounts necessary to provide all the Merger Consideration
and Preferred Stock Merger Consideration required to be exchanged by
Cerner pursuant to the terms of this Agreement (such Merger
Consideration, together with any dividends or other distributions with
respect thereto, referred to herein as the "Exchange Fund").
(b) Promptly after the Effective Time, the Exchange Agent shall mail
to each record holder of Common Stock as of the Effective Time, a letter
of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to Common Certificates shall pass, only upon proper
delivery of the Common Certificates to the Exchange Agent) and
instructions for use in effecting the surrender of Common Certificates in
exchange for the Merger Consideration. Upon surrender to the Exchange
Agent of a Common Certificate evidencing Common Stock, together with such
letter of transmittal duly executed, and any other required documents, the
holder of such Common Certificate (other than those shares to be canceled
pursuant to Section 2.1(e)(iii) of this Agreement) shall be entitled to
receive in exchange therefor, certificates representing shares of Cerner
Common Stock as set forth in this Article II, and such Common Certificate
shall forthwith be canceled. No holder of a Common Certificate or Common
Certificates shall be entitled to receive any dividend or other
distribution from Cerner until the surrender of such holder's Common
Certificate for a certificate or certificates representing shares of
Cerner Common Stock. Upon such surrender, there shall be paid to the
holder the amount of any dividends or other distributions (without
interest) that theretofore became payable with record dates after the
Effective Time, but that were not paid by reason of the foregoing, with
respect to the number of whole shares of Cerner Common Stock represented
by the certificates issued upon surrender, which amount shall be delivered
to the Exchange Agent by Cerner from time to time as such dividends or
other distributions are declared. If delivery of certificates representing
shares of Cerner Common Stock is to be made to a person other than the
person in whose name the Common Certificate surrendered is registered or
if any certificate for shares of Cerner Common Stock as the case may be,
is to be issued in a name other than that in which the Common Certificate
surrendered therefor is registered, it shall be a condition of such
delivery or issuance that the Common Certificate so surrendered shall be
properly endorsed or otherwise in proper form for transfer and that the
person requesting such delivery or issuance shall pay any transfer or
other Taxes required by reason of such delivery or issuance to a person
other than the registered holder of the Common Certificate surrendered or
establish to the satisfaction of Cerner that such Tax has been paid or is
not applicable. Until surrendered in accordance with the provisions of
this Section 2.3, each Common Certificate shall represent for all purposes
only the right to receive shares of Cerner Common Stock (and cash in lieu
of fractional shares) and the cash portion of the Merger Consideration as
provided in this Article II without any interest thereon.
6
(c) Promptly after the Effective Time, the Exchange Agent shall mail
to each record holder of Preferred Stock as of the Effective Time, a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to Preferred Certificates shall pass,
only upon proper delivery of the Preferred Certificates to the Exchange
Agent) and instructions for use in effecting the surrender of Preferred
Certificates in exchange for Preferred Stock Merger Consideration. Upon
surrender to the Exchange Agent of a Preferred Certificate evidencing
Preferred Stock, together with such letter of transmittal duly executed,
and any other required documents, the holder of such Preferred Certificate
shall be entitled to receive in exchange therefor, the cash portion of the
Preferred Stock Merger Consideration, and such Preferred Certificate shall
forthwith be canceled.
(d) At the Effective Time, the stock transfer books of DHT shall be
closed as to holders of the Common Stock or the Preferred Stock
immediately prior to the Effective Time and no transfers of the Common
Stock or the Preferred Stock by any such holder shall thereafter be made
or recognized. If, after the Effective Time, (i) Common Certificates are
presented to the Surviving Corporation for transfer, they shall be
canceled and exchanged for shares of Cerner Common Stock (and cash in lieu
of fractional shares) as provided in this Article II, in accordance with
the procedures set forth in this Section 2.3, and (ii) Preferred
Certificates are presented to the Surviving Corporation for transfer, they
shall be canceled and exchanged for cash as provided in this Article II,
in accordance with the procedures set forth in this Section 2.3.
(e) Any portion of the Exchange Fund made available to the Exchange
Agent which remains undistributed to the former shareholders of DHT for
one year after the Effective Time shall be delivered to the Surviving
Corporation, upon demand, and any shareholders of DHT who have not
theretofore complied with this Article II shall thereafter look only to
the Surviving Corporation for payment of their claim for Merger
Consideration and any dividends or distributions with respect to Cerner
Common Stock.
(f) None of DHT, Cerner, or the Surviving Corporation shall be
liable to any holder of shares of Common Stock for the Merger
Consideration (or dividends or distributions with respect thereto) or to
any holder of shares of Preferred Stock for the Preferred Merger
Consideration, delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
SECTION 2.3. AFFILIATES. Notwithstanding anything to the contrary herein,
to the full extent permitted by law, no certificates representing shares of
Cerner Common Stock shall be delivered to a Person who may be deemed an
"affiliate" of DHT in accordance with Section 7.7 hereof, until such Person has
executed and delivered an Affiliate Agreement pursuant to Section 7.7.
7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CERNER
Except as disclosed in the Cerner Disclosure Schedule delivered to DHT
separately prior to, or contemporaneously with, the date hereof (each section or
subsection of which qualifies the correspondingly numbered representation,
warranty or covenant to the extent specified therein), Cerner represents and
warrants to DHT that:
SECTION 3.1. CORPORATE EXISTENCE AND POWER. Cerner is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and has all corporate powers required to carry on its business as
now conducted and as described in Cerner SEC Documents. Cerner is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where the character of the property owned or leased by it or the
nature of its activities makes such qualification necessary, except where the
failure to be so qualified, individually or in the aggregate, would not be
reasonably likely to have a Cerner Material Adverse Effect.
SECTION 3.2. CORPORATE AUTHORIZATION. The execution, delivery and
performance by Cerner of this Agreement and the consummation by Cerner of the
transactions contemplated hereby are within Cerner's corporate powers and have
been duly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by Cerner and (assuming that this Agreement
constitutes the valid and binding obligation of DHT) this Agreement constitutes
a valid and binding agreement of Cerner, enforceable in accordance with its
terms (except in all cases to the extent that (i) enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or similar
Requirements of Law affecting the enforceability of creditors' rights and
remedies generally, (ii) the availability of the equitable remedy of specific
performance and injunctive relief so subject to the discretion of the court
before which the proceeding may be brought, and (iii) the enforceability of
provisions relating to indemnification may be limited by applicable federal,
state, or other securities laws or the public policy underlying such laws.
SECTION 3.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Cerner of this Agreement and the consummation by Cerner of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Entity by Cerner other than (a) the filing of (i)
a Certificate of Merger in accordance with the Delaware Law, (ii) Articles of
Merger in accordance with the Florida Law, and (iii) appropriate documents with
the relevant authorities of other states or jurisdictions in which Cerner or any
Cerner Subsidiary is qualified to do business; (b) compliance with any
applicable requirements of the Securities Act and the Exchange Act; and the
rules and requirements of NASDAQ; (c) such as may be required under any
applicable state securities or blue sky laws; (d) notices to or filings with the
Internal Revenue Service, or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans; and (e) such other consents, approvals,
actions, orders, authorizations, registrations, declarations and filings that in
the case of this Section 3.3(e), if not obtained or made, would not,
individually or in the aggregate (x) be reasonably likely to have a Cerner
Material Adverse Effect or (assuming for this purpose that the Effective Time
had occurred) a
8
Surviving Corporation Material Adverse Effect, or (y) prevent or materially
impair the ability of Cerner to consummate the transactions contemplated by
this Agreement.
SECTION 3.4. NON-CONTRAVENTION. The execution, delivery and performance by
Cerner of this Agreement and the consummation by Cerner of the transactions
contemplated hereby do not and will not (a) contravene or conflict with Cerner's
Certificate of Incorporation or Bylaws, (b) assuming compliance with the matters
referred to in Section 3.3 of this Agreement, contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Cerner or any Cerner
Subsidiary, (c) constitute a default under or give rise to a right of
termination, cancellation or acceleration of any right or obligation of Cerner
or any Cerner Subsidiary or to a loss of any benefit or status to which Cerner
or any Cerner Subsidiary is entitled under any provision of any agreement,
contract or other instrument binding upon Cerner or any Cerner Subsidiary or any
license, franchise, permit or other similar authorization held by Cerner or any
Cerner Subsidiary, or (d) result in the creation or imposition of any Lien on
any asset of Cerner or any Cerner Subsidiary other than, in the case of each of
Sections 3.4(b), (c) and (d), any such items that would not, individually or in
the aggregate (x) are reasonably likely to have a Cerner Material Adverse Effect
or (y) prevent or materially impair the ability of Cerner to consummate the
transactions contemplated by this Agreement.
SECTION 3.5. CERNER SEC DOCUMENTS.
(a) Cerner has filed all reports, filings, registration statements
and other documents required to be filed by it with the SEC since January
2, 1999. No Cerner Subsidiary is required to file any form, report,
registration statement or prospectus or other document with the SEC.
(b) As of its filing date, each Cerner SEC Document complied as to
form in all material respects with the applicable requirements of the
Securities Act and/or the Exchange Act, as the case may be.
(c) No Cerner SEC Document filed pursuant to the Exchange Act
contained, as of its filing date, any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading (except any statement or omission therein
which was corrected or otherwise disclosed or updated in a subsequent
Cerner SEC Document). No Cerner SEC Document, as amended or supplemented,
if applicable, filed pursuant to the Securities Act contained, as of the
date such document or amendment became effective, any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) Cerner and the Cerner Subsidiaries keep proper accounting
records in which all material assets and liabilities, and all material
transactions, of Cerner and the Cerner Subsidiaries are recorded in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis. No part of Cerner's or any
9
Cerner Subsidiary's accounting system or records, or access thereto, is
under the control of a Person who is not an employee of Cerner or such
Subsidiary.
SECTION 3.6. INFORMATION TO BE SUPPLIED.
(a) The information pertaining to Cerner and included in the
Registration Statement (whether provided expressly or by incorporation by
reference) will not, at the times of (i) the mailing of the Proxy
Statement/Prospectus, (ii) the effective date of the Registration
Statement, and (iii) and at the time of the Special Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement will comply (with respect to
information relating to Cerner) as to form in all material respects with
the provisions of the Securities Act and the Exchange Act.
(b) Notwithstanding the foregoing, Cerner makes no representation or
warranty with respect to any statements made or incorporated by reference
in the Proxy Statement/Prospectus regarding DHT.
SECTION 3.7. ABSENCE OF CERTAIN CHANGES. Since December 30, 2000, except
as otherwise expressly contemplated by this Agreement, Cerner and the Cerner
Subsidiaries have conducted their business in the ordinary course consistent
with past practice and there has not been (a) any damage, destruction or other
casualty loss (whether or not covered by insurance) affecting the business or
assets of Cerner or any Cerner Subsidiary that, individually or in the
aggregate, has had or would be reasonably likely to have a Cerner Material
Adverse Effect, (b) any action, event, occurrence, development or state of
circumstances or facts that, individually or in the aggregate, has had or would
be reasonably likely to have a Cerner Material Adverse Effect or (c) any
incurrence, assumption or guarantee by Cerner of any material indebtedness for
borrowed money other than in the ordinary course and in amounts and on terms
consistent with past practices.
SECTION 3.8. FINDERS' FEES. There is no investment banker, broker, finder
or other intermediary that has been retained by, or is authorized to act on
behalf of, Cerner or any Cerner Subsidiary who might be entitled to any fee or
commission from DHT or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
SECTION 3.9. CAPITALIZATION. The authorized capital stock of Cerner
consists of 150,000,000 shares of Cerner Common Stock and 1,000,000 shares of
preferred stock. At the close of business on June 30, 2001, (i) 34,909,743
shares of Cerner Common Stock were issued and outstanding, (ii) stock options
and warrants to purchase an aggregate 6,774,371 shares of Cerner Common Stock
were issued and outstanding (of which options and warrants to purchase an
aggregate of 1,482,803 shares of Cerner Common Stock were exercisable), (iii) no
shares of Cerner Common Stock were held in its treasury, except as disclosed in
the Cerner Financial Statements, (iv) no shares of preferred stock of Cerner
were issued and outstanding, and (v) no stock options and warrants to purchase
preferred stock of Cerner were issued and outstanding, other than the rights
issued in connection with the Amended and Restated Rights Agreement, dated March
12, 1999, by and between Cerner and Exchange Agent. All of the issued and
10
outstanding shares of capital stock of Cerner have been, and all of the Cerner
Common Stock to be issued in exchange for shares of the Common Stock upon
consummation of the Merger, when issued in accordance with the terms of this
Agreement, will be, duly authorized and validly issued and outstanding and fully
paid and nonassessable. All of the Cerner Common Stock to be issued in the
Merger will be authorized, reserved and available for issuance prior to the
Effective Time.
SECTION 3.10. FINANCIAL STATEMENTS; NO MATERIAL UNDISCLOSED LIABILITIES.
(a) The audited consolidated balance sheets of Cerner as of January
2, 1999, January 1, 2000 and December 30, 2000, together with the related
audited consolidated statements of operations, stockholders' equity and
cash flows for the fiscal years then ended and the notes thereto (the
"Cerner Financial Statements") fairly present in all material respects, in
conformity with GAAP consistently applied (except as may be indicated in
the notes thereto), the financial position of Cerner as of the dates
thereof and its results of operations, stockholders' equity and
consolidated cash flows for the periods then ended.
(b) There are no liabilities of Cerner of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise, in each case, that are required by GAAP to be set forth on a
balance sheet of Cerner, other than:
(i) liabilities or obligations disclosed or provided for
in the Cerner Balance Sheet or disclosed in the notes thereto;
(ii) liabilities or obligations under this Agreement or
incurred in connection with the transactions contemplated hereby;
and
(iii) other liabilities or obligations that individually or in
the aggregate, would not be reasonably likely to have a Cerner
Material Adverse Effect.
SECTION 3.11. LITIGATION. Except as disclosed in a Cerner SEC Document,
there are no actions, suits, investigations, arbitration's or other proceedings
pending against, or to the Knowledge of Cerner threatened against, Cerner which
is reasonably likely to adversely effect the ability of Cerner to perform its
obligations under this Agreement or to consummate the Merger or the transactions
contemplated by this Agreement or which would be required to be disclosed in
Cerner SEC Documents if any such documents were filed on the date hereof.
SECTION 3.12. MATERIAL AGREEMENTS. As of the date of the execution of this
Agreement, there are no material agreements, contracts, commitments or other
instruments which Cerner or its Subsidiaries is a party which are required to be
filed, but have not yet been filed, as an exhibit to a Cerner SEC Documents
under the Securities Act, the Exchange Act, and rules and regulations of the SEC
promulgated thereunder.
11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DHT
Except as disclosed in the DHT Disclosure Schedule delivered to Cerner
separately prior to, or contemporaneously with, the date hereof (each section or
subsection of which qualifies the correspondingly numbered representation,
warranty or covenant to the extent specified therein), DHT represents and
warrants to Cerner that:
SECTION 4.1. CORPORATE EXISTENCE AND POWER. DHT is a corporation duly
incorporated, validly existing with active status under the laws of the State of
Florida, and has all corporate powers required to carry on its business as now
conducted. DHT is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where the character of the property owned
or leased by it or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified, individually or in the
aggregate, is not reasonably likely to have a DHT Material Adverse Effect.
SECTION 4.2. CORPORATE AUTHORIZATION. The execution and delivery by DHT of
this Agreement and, subject to the requisite approval and adoption of this
Agreement and the Merger by the stockholders of DHT, the performance and the
consummation by DHT of the transactions contemplated hereby are within DHT's
corporate powers and, except for the DHT Shareholder Approval, have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by DHT and, subject to DHT Shareholder Approval and
assuming that this Agreement constitutes the valid and binding obligation of
Cerner and Merger Sub, this Agreement constitutes a valid and binding agreement
of DHT, enforceable in accordance with its terms (except in all cases to the
extent that (i) enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar Requirements of Law affecting
the enforceability of creditors' rights and remedies generally, (ii) the
availability of the equitable remedy of specific performance and injunctive
relief so subject to the discretion of the court before which the proceeding may
be brought, and (iii) the enforceability of provisions relating to
indemnification may be limited by applicable federal, state, or other securities
laws or the pubic policy underlying such laws).
SECTION 4.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by DHT of this Agreement and the consummation by DHT of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Entity by DHT other than (a) the filing of (i) the
Certificate of Merger in accordance with the Delaware Law, (ii) the Articles of
Merger in accordance with the Florida Law, and (iii) appropriate documents with
the relevant authorities of other states or jurisdictions in which DHT or any
DHT Subsidiary is qualified to do business; (b) compliance with any applicable
requirements of the Securities Act and the Exchange Act; and the rules and
requirements of NASDAQ; (c) such as may be required under any applicable state
securities or blue sky laws; (d) notices to or filings with the Internal Revenue
Service, or the Pension Benefit Guaranty Corporation with respect to any
employee benefit plans and (e) such other consents, approvals, actions, orders,
authorizations, registrations, declarations and filings that, in the case of
this Section 4.3(e), if not obtained or made, would not, individually or in the
aggregate, (x) be reasonably likely to have a DHT Material Adverse Effect or
(assuming for this purpose that the Effective Time had occurred) a Surviving
12
Corporation Material Adverse Effect, or (y) prevent or materially impair the
ability of DHT to consummate the transactions contemplated by this Agreement.
SECTION 4.4. NON-CONTRAVENTION. The execution, delivery and performance by
DHT of this Agreement and, subject to DHT Shareholder Approval, the consummation
by DHT of the transactions contemplated hereby do not and will not (a)
contravene or conflict with DHT's Articles of Incorporation or Bylaws, (b)
assuming compliance with the matters referred to in Section 4.3 of this
Agreement, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to DHT, (c) constitute a breach or default under or give rise
to a right of termination, cancellation or acceleration of any right or
obligation of DHT or any DHT Subsidiary or to a loss of any benefit or status to
which DHT is entitled under any provision of any agreement, contract or other
instrument binding upon DHT or any DHT Subsidiary or any license, franchise,
permit or other similar authorization held by DHT, or (d) result in the creation
or imposition of any Lien on any asset of DHT; except in the case of each of
Sections 4.4 (b), (c) and (d) of this Agreement, any such items that would not,
individually or in the aggregate (x) are reasonably likely to have a DHT
Material Adverse Effect or (y) prevent or materially impair the ability of DHT
to consummate the transactions contemplated by this Agreement.
SECTION 4.5. CAPITALIZATION.
(a) The authorized capital stock of DHT as of the date of this
Agreement consists of 40,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, par value $0.01 per share, of which 1,000,000
shares have been designated Preferred Stock. As of August 13, 2001: (i)
6,571,640 shares of Common Stock were issued and outstanding, (ii) Stock
Rights to purchase an aggregate of 1,123,491 shares of Common Stock were
issued and outstanding (of which options and warrants to purchase an
aggregate of 637,068 shares of Common Stock were exercisable), (iii) no
shares of Common Stock were held in its treasury, and (iv) 1,000,000
shares of Preferred Stock were issued and outstanding and no other shares
of preferred stock of DHT were issued and outstanding. All outstanding
shares of capital stock of DHT have been duly authorized and validly
issued and are fully paid and nonassessable. All Stock Rights outstanding
as of the date hereof are set forth on Section 2.1(f) of the DHT
Disclosure Schedule.
(b) As of the date hereof, except (i) as set forth in this Section
4.5, and (ii) for changes since August 13, 2001, resulting from the
exercise of stock options outstanding on such date, there are no
outstanding (x) shares of capital stock or other voting securities of DHT,
(y) securities of DHT convertible into or exchangeable for shares of
capital stock or voting securities of DHT, or (z) options or other rights
to acquire from DHT, and no obligation of DHT to issue, any capital stock,
voting securities or securities convertible into or exchangeable for
capital stock or voting securities of DHT (the items in clauses (x), (y)
and (z) being referred to collectively as the "DHT Securities"). There are
no outstanding obligations of DHT or any DHT Subsidiary to repurchase,
redeem or otherwise acquire any DHT Securities. There are no outstanding
contractual obligations of DHT to provide funds to, or make any investment
(in the form of a loan, capital contribution or otherwise) in, any other
Person. As of the date hereof, other than as
13
specifically provided in the Articles of Incorporation of DHT, there
are no stockholder agreements, voting trusts or other agreements or
understandings to which DHT is a party, or of which DHT is aware,
relating to voting, registration or disposition of any shares of
capital stock of DHT which may limit in any way the solicitation of
proxies by or on behalf of DHT, or the casting of votes by,
stockholders of DHT with respect to the Merger, or granting to any
person or group of persons the right to elect, or to designate or
nominate for election, a director to the board of directors of DHT.
SECTION 4.6. SUBSIDIARIES. Except as set forth on the DHT Disclosure
Statement, the list of Subsidiaries of DHT filed by DHT with its most recent DHT
SEC Document on Form 10-K for the fiscal year ended December 31, 2000 (or
incorporated therein by reference) is a true and complete list of all of the DHT
Subsidiaries.
SECTION 4.7. FINANCIAL STATEMENTS; NO MATERIAL UNDISCLOSED LIABILITIES.
(a) The audited consolidated balance sheets of DHT as of December
31, 1998, 1999 and 2000, together with the related audited consolidated
statements of operations, shareholders' equity and cash flows for the
fiscal years then ended contained in DHT SEC Documents filed on form 10-K
or 10-Q, and the notes thereto (the "DHT Financial Statements") fairly
present in all material respects, in conformity with GAAP consistently
applied (except as may be indicated in the notes thereto or in the case of
unaudited financial statements, as permitted by Form 10-Q and Rule 10-01
of Regulation S-X promulgated by the SEC), the financial position of DHT
as of their respective dates and its results of operations, shareholders'
equity and consolidated cash flows for the periods then ended (except that
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments, and except for the absence of permitted
footnote disclosures in the unaudited financial statements).
(b) Except as disclosed in the DHT SEC Documents, there are no
liabilities of DHT of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, in each case, that are
required by GAAP to be set forth on a balance sheet of DHT, other than:
(i) liabilities or obligations disclosed or provided for in
the DHT Balance Sheet or disclosed in the notes thereto or which
were fully incurred or paid after June 30, 2001 in the ordinary
course of business;
(ii) liabilities or obligations under this Agreement or
accrued in connection with the transactions contemplated hereby;
and
(iii) liabilities or obligations not referenced in Sections
4.7(b)(i) or (ii) above that individually or in the aggregate, are
not reasonably likely to have a DHT Material Adverse Effect.
SECTION 4.8. DHT SEC DOCUMENTS.
(a) DHT has filed all reports, filings, registration statements and
other documents required to be filed by it with the SEC since December 31,
1998. No DHT
14
Subsidiary is required to file any form, report, registration statement
or prospectus or other document with the SEC.
(b) As of its filing date, each DHT SEC Document complied as to form
in all material respects with the applicable requirements of the
Securities Act and/or the Exchange Act, as the case may be.
(c) No DHT SEC Document filed pursuant to the Exchange Act
contained, as of its filing date, any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading (except any statement or omission therein
which was corrected or otherwise disclosed or updated in a subsequent DHT
SEC Document). No DHT SEC Document, as amended or supplemented, if
applicable, filed pursuant to the Securities Act contained, as of the date
such document or amendment became effective, any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) DHT and the DHT Subsidiaries keep proper accounting records in
which all material assets and liabilities, and all material transactions,
of DHT and the DHT Subsidiaries are recorded in conformity with GAAP
applied on a consistent basis. No part of DHT's or any DHT Subsidiary's
accounting system or records, or access thereto, is under the control of a
Person who is not an employee of DHT or such Subsidiary.
SECTION 4.9. INFORMATION TO BE SUPPLIED.
(a) The information pertaining to DHT and included in the
Registration Statement (whether provided expressly or by incorporation by
reference) will not, at the times of (i) the mailing of the Proxy
Statement/Prospectus, (ii) the effective date of the Registration
Statement, and (iii) and at the time of the Special Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement will comply (with respect to
information relating to DHT) as to form in all material respects with the
provisions of the Securities Act and the Exchange Act.
(b) Notwithstanding the foregoing, DHT makes no representation or
warranty with respect to any statements made or incorporated by reference
in the Proxy Statement/Prospectus regarding Cerner.
SECTION 4.10. ABSENCE OF CERTAIN CHANGES. Since December 31, 2000, except
as disclosed in (or incorporated by reference in) a DHT SEC Document, the DHT
Financial Statements, Section 4.10 of the DHT Disclosure Schedule or otherwise
expressly contemplated by this Agreement, DHT has conducted its business in the
ordinary course consistent with past practice and there has not been (a) any
damage, destruction or other casualty loss (whether or not covered by insurance)
affecting the business or assets of DHT that, individually or in the aggregate,
has had or would be reasonably likely to have a DHT Material Adverse Effect, (b)
any
15
action, event, occurrence, development or state of circumstances or facts
that, individually or in the aggregate, has had or would be reasonably likely to
have a DHT Material Adverse Effect or (c) any incurrence, assumption or
guarantee by DHT of any material indebtedness for borrowed money other than in
the ordinary course and in amounts and on terms consistent with past practices.
SECTION 4.11. LITIGATION. Except as disclosed in Section 4.11 of the DHT
Disclosure Schedule, there are no actions, suits, investigations, arbitrations
or other proceedings pending against, or to the Knowledge of DHT threatened
against, DHT or any of its respective assets or properties before any arbitrator
or Governmental Entity that are, individually or in the aggregate, reasonably
likely to have a DHT Material Adverse Effect. Except as disclosed in Section
4.11 of the DHT Disclosure Schedule, there are no outstanding judgments,
decrees, injunctions, awards or orders against DHT that are reasonably likely to
have, individually or in the aggregate, a DHT Material Adverse Effect.
SECTION 4.12. TAXES.
(a) All Tax returns, statements, reports and forms (collectively,
the "DHT Returns") required to be filed by DHT through the date hereof
with any taxing authority have been filed in substantial compliance with
all applicable laws.
(b) DHT has timely paid all Taxes shown as due and payable on the
DHT Returns that have been so filed, and as of the time of filing, the DHT
Returns correctly reflected the facts regarding the income, business,
assets, operations, activities and the status of DHT and the DHT
Subsidiaries (other than Taxes that are being contested in good faith and
for which adequate reserves are being maintained and are reflected in the
DHT Financial Statements).
(c) DHT has made adequate provision for all Taxes payable by them
for which no DHT Return has yet been filed.
(d) The charges, accruals and reserves for Taxes with respect to DHT
reflected on the DHT Balance Sheet are materially adequate under GAAP to
cover the Tax liabilities accruing through the date thereof.
(e) There is no action, suit, proceeding, audit or claim now
proposed or pending against or with respect to DHT in respect of any Tax
that is reasonably likely to have a DHT Material Adverse Effect.
(f) DHT has not been a member of an affiliated, consolidated,
combined or unitary group other than one of which DHT was the common
parent.
(g) DHT has not filed any consent under Section 341(f) of the Code
covering a collapsible corporation.
16
SECTION 4.13. EMPLOYEE BENEFITS.
(a) Section 4.13(a) of the DHT Disclosure Schedule contains a
correct and complete list identifying each material "employee benefit
plan," as defined in Section 3(3) of Employee Retirement Income Security
Act of 1974 ("ERISA"), each employment, severance or similar contract,
plan, arrangement or policy and each other plan or arrangement (written or
oral) providing for compensation, bonuses, profit-sharing, stock option or
other stock related rights or other forms of incentive or deferred
compensation, vacation benefits, insurance coverage (including any
self-insured arrangements), health or medical benefits, disability
benefits, workers' compensation, supplemental unemployment benefits,
severance benefits and post-employment or retirement benefits (including
compensation, pension, health, medical or life insurance benefits) that is
maintained, administered or contributed to by DHT or any of its ERISA
Affiliates and covers any employee or former employee of DHT or any DHT
Subsidiary. Copies of such plans (and, if applicable, related trust
agreements) and all amendments thereto and written interpretations thereof
have been furnished, or will be made available upon request, to Cerner
together with the most recent annual report (Form 5500 including, if
applicable, Schedule B thereto), all summary plan descriptions and
material employee communications prepared in connection with any such
plan. Such plans are referred to collectively herein as the "DHT Employee
Plans." For purposes of this Section 4.13, "ERISA Affiliate" of any Person
means any other Person which, together with such Person, would be treated
as a single employer under Section 414 of the Code.
(b) No DHT Employee Plan is now or at any time has been subject to
Part 3, Subtitle B of Title I of ERISA or Title IV of ERISA. At no time
has DHT or any of its ERISA Affiliates contributed to, or been required to
contribute to, any "multiemployer plan," as defined in Section 3(37) of
ERISA (a "Multiemployer Plan"), or any other plan subject to Title IV of
ERISA (a "Retirement Plan"), and neither DHT nor any of its ERISA
Affiliates has, or ever has had, any liability (contingent or otherwise)
relating to the withdrawal or partial withdrawal from a Multiemployer
Plan. To the Knowledge of DHT, no condition exists and no event has
occurred that would be reasonably likely to constitute grounds for
termination of any DHT Employee Plan that is a Retirement Plan or, with
respect to any DHT Employee Plan that is a Multiemployer Plan, presents a
material risk of a complete or partial withdrawal under Title IV of ERISA
and neither DHT nor any of its ERISA Affiliates has incurred any liability
under Title IV of ERISA arising in connection with the termination of, or
complete or partial withdrawal from, any plan covered or previously
covered by Title IV of ERISA that would be reasonably likely to have a DHT
Material Adverse Effect. To the Knowledge of DHT, nothing has been done or
omitted to be done and no transaction or holding of any asset under or in
connection with any DHT Employee Plan has occurred that will make DHT or
any DHT Subsidiary, or any officer or director of DHT or any DHT
Subsidiary, subject to any liability under Title I of ERISA or liable for
any tax pursuant to Section 4975 of the Code (assuming the taxable period
of any such transaction expired as of the date hereof) that would be
reasonably likely to have a DHT Material Adverse Effect.
(c) Each DHT Employee Plan that is intended to be qualified under
Section 401(a) of the Code now meets, and at all times since its inception
have met, the
17
requirements for such qualification other than such requirements for
which a remedial amendment period has not expired, and each trust
forming a part thereof is now, and at all times since its inception has
been, exempt from tax pursuant to Section 501(a) of the Code. Each such
plan has received a determination letter from the Internal Revenue
Service to the effect that such plan is qualified and its related trust
is exempt from federal income taxes. DHT has furnished, or will make
available upon request, to Cerner copies of the most recent Internal
Revenue Service determination letters with respect to each such DHT
Employee Plan. Each DHT Employee Plan has been maintained and
administered in substantial compliance with its terms (except that in
any case in which any DHT Employee Plan is currently required to comply
with a provision of ERISA or of the Code, but is not yet to be amended
to reflect such provision, such plan has been maintained and
administered in accordance with the provision) and with the
requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, which are
applicable to such DHT Employee Plan. All material reports, returns and
similar documents with respect to each DHT Employee Plan required to be
filed with any governmental agency or distributed to any DHT Employee
Plan participant have been duly timely filed and distributed.
(d) There is no contract, agreement, plan or arrangement that, as a
result of the Merger, would be reasonably likely to obligate DHT to make
any payment of any amount that would not be deductible pursuant to the
terms of Section 162(m) or Section 280G of the Code.
(e) Except as disclosed in writing to Cerner prior to the date
hereof, there has been no amendment to, written interpretation or
announcement (whether or not written) relating to, or change in employee
participation or coverage under, any DHT Employee Plan that would increase
materially the expense of maintaining such DHT Employee Plan above the
level of the expense incurred in respect thereof for the fiscal year ended
December 31, 2000.
(f) No DHT Employee Plan promises or provides post-retirement
medical, life insurance or other benefits due now or in the future to
current, former or retired employees of DHT or any Subsidiary.
SECTION 4.14. COMPLIANCE WITH LAWS; LICENSES, PERMITS AND REGISTRATIONS.
(a) DHT is not in violation of, nor has DHT has been notified that
it has violated, any applicable provisions of any laws, statutes,
ordinances, regulations, judgments, injunctions, orders or consent
decrees, except for any such violations that, individually or in the
aggregate, are not reasonably likely to have a DHT Material Adverse
Effect.
(b) DHT has all permits, licenses, approvals, authorizations of and
registrations with and under all federal, state, local and foreign laws,
and from all Governmental Entities required by DHT to carry on its
business as currently conducted, except where the failure to have any such
permits, licenses, approvals, authorizations or
18
registrations, individually or in the aggregate, would not be reasonably
likely to have a DHT Material Adverse Effect.
SECTION 4.15. TITLE TO PROPERTIES.
(a) DHT has good and marketable title to, or valid leasehold
interests in, all its properties and assets reflected in the DHT Financial
Statements as being owned or leased by DHT, except for such as are no
longer used or useful in the conduct of its business or as have been
disposed of in the ordinary course of business and except for defects in
title, easements, restrictive covenants and similar Liens, encumbrances or
impediments that are not reasonably likely to have a DHT Material Adverse
Effect. All such assets and properties, other than assets and properties
in which DHT has leasehold interests, are free and clear of all Liens,
except for Liens are not reasonably likely to have a DHT Material Adverse
Effect.
(b) DHT (i) is in substantial compliance with the terms of all
leases to which it is a party and under which it is in occupancy, and all
such leases are in full force and effect and (ii) enjoys peaceful and
undisturbed possession under all such leases.
SECTION 4.16. INTELLECTUAL PROPERTY.
(a) DHT owns or has a valid license to use, free and clear of all
liens except as granted to Silicon Valley Bank all material: (i) Marks;
(ii) Patents; (iii) Copyrights; and (iv) Trade Secrets; necessary to (x)
carry on the business of DHT as currently conducted or as proposed to be
conducted by the Surviving Corporation, and (y) make, have made, use,
distribute and sell all products currently sold by DHT and all products in
development.
(b) DHT has not received any notification or other communication of
the existence of any dispute or disagreement with respect to any agreement
to which DHT is a party, relating to any of DHT's Marks, Patents,
Copyrights, or Trade Secrets (collectively, "DHT Intellectual Property"),
and to DHT's Knowledge, there are no such threatened disputes or
disagreements.
(c) All former and current employees of DHT have executed written
contracts with DHT that assign to DHT all rights to any inventions,
improvements, discoveries, or information relating to the business of DHT.
To DHT's Knowledge, no employee of DHT has entered into any contract that
restricts or limits in any way the scope or type of work in which the
employee may be engaged or requires the employee to transfer, assign, or
disclose information concerning his work to anyone other than DHT.
(d) All of the Patents are currently in compliance with formal legal
requirements (including payment of filing, examination, and maintenance
fees and proofs of working or use), are valid and enforceable, and are not
subject to any maintenance fees or taxes or actions except where the
failure to have such ownership or license is not reasonably likely to have
a DHT Material Adverse Effect.
19
(e) DHT uses reasonable procedures to keep its Trade Secrets
confidential, and DHT's Trade Secrets have been disclosed only under
written agreements that require the recipient to hold such Trade Secrets
confidential.
(f) No Patent has been or is now involved in any interference,
reissue, reexamination, or opposition proceeding. DHT has not received
notification of any potentially interfering patent or patent application
of any third party.
(g) To DHT's Knowledge, no DHT Intellectual Property is infringed
or, to DHT's Knowledge, has been challenged or threatened in any way. To
DHT's Knowledge, none of the products manufactured and sold or proposed to
be sold, nor any process or know-how used, by DHT infringes or is alleged
to infringe any Patent or other proprietary right of any other Person.
(h) Other than the software licenses set forth in the DHT Disclosure
Schedules, DHT is not required to make any payments to any third parties
in connection with third party technology embedded in the DHT Intellectual
Property.
(i) All products made, used, or sold under the Patents have been
marked with the proper patent notice except where the failure to have such
ownership or license is not reasonably likely to have a DHT Material
Adverse Effect.
SECTION 4.17. ENVIRONMENTAL MATTERS. With such exceptions as, individually
or in the aggregate, are not reasonably likely to have a DHT Material Adverse
Effect, (i) no written notice, notification, demand, request for information,
summons, complaint or order has been received by DHT, and no investigation,
action, claim, suit, proceeding or review is pending or to the Knowledge of DHT,
threatened by any Person against, DHT with respect to any applicable
Environmental Law and (ii) to the Knowledge of DHT, DHT is and has been in
compliance with all applicable Environmental Laws.
SECTION 4.18. FINDERS' FEES; OPINIONS OF FINANCIAL ADVISOR. Except as
described in Section 4.18 of the DHT Disclosure Schedule, there is no investment
banker, broker, finder or other intermediary that has been retained by, or is
authorized to act on behalf of, DHT or who might be entitled to any fee or
commission from DHT or Cerner or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
SECTION 4.19. REQUIRED VOTE AND WAIVER; BOARD APPROVAL.
(a) The only vote or waiver of rights of the holders of any class or
series of capital stock of DHT required by law, rule or regulation to
approve and adopt this Agreement and/or any of the other transactions
contemplated hereby, including the Merger, is the affirmative vote of the
holders of a majority of the outstanding shares of Common Stock entitled
to vote thereon and of a majority of the shares of DHT Preferred Stock,
each voting as a separate class, in favor of the approval and adoption of
this Agreement and approval of the Merger and the transactions
contemplated hereby.
(b) DHT's Board of Directors has (i) determined and declared that as
of the date of this Agreement this Agreement and the transactions
contemplated hereby,
20
including the Merger, are advisable and in the best interests of DHT
and its shareholders, (ii) duly approved and adopted this Agreement,
the Merger and the other transactions contemplated hereby and (iii)
duly resolved, subject to its continuing fiduciary duties, to recommend
to such shareholders that they vote in favor of adopting and approving
this Agreement and the Merger in accordance with the terms hereof at a
special meeting of the shareholders of DHT duly held for such purpose
(the "DHT Shareholders Meeting").
SECTION 4.20. STATE TAKEOVER STATUTES. DHT has, or will, taken all actions
required to be taken by it in order to exempt this Agreement and the
transactions contemplated hereby from the provisions of Section 607.0902 of the
Florida Law, and accordingly, such Sections do not apply to the Merger or any of
such transactions.
SECTION 4.21. TAX TREATMENT. DHT is not aware that it has taken or
agreed to take, any action or is aware of any fact or circumstance that
would prevent or impede the Merger from qualifying as a 368 Reorganization.
SECTION 4.22. CERTAIN AGREEMENTS. Except as set forth in Section 4.25 of
the DHT Disclosure Schedule, DHT is not (i) a party to or otherwise bound by any
agreement or arrangement that limits or otherwise restricts DHT or the Surviving
Corporation from engaging or competing in any line of business or in any
locations, which agreement or arrangement is material to the business of DHT or
would be material to the business of the Surviving Corporation (assuming the
Merger has taken place), in either case taken as a whole and (ii) except in the
ordinary course of business, have amended, modified or terminated any material
contract, agreement or arrangement of DHT or any DHT Subsidiary or otherwise
waived, released or assigned any material rights, claims or benefits of DHT or
any DHT Subsidiary thereunder.
SECTION 4.23. EMPLOYMENT AGREEMENTS. There exists (i) no union, guild or
collective bargaining agreement to which DHT is a party, (ii) except as set
forth in Sections 4.13(a) and 9.3 of the DHT Disclosure Schedule, no employment,
consulting or severance agreement between DHT and any Person (except for
consulting agreements that individually, and in the aggregate, are not material
to DHT), and (iii) no employment, consulting, severance or indemnification
agreement or other agreement or plan to which DHT is a party that would be
altered or result in any bonus, golden parachute, severance or other payment or
obligation to any Person, or result in any acceleration of the time of payment
or in the provision or vesting of any benefits, as a result of the execution or
performance of this Agreement or as a result of the Merger or the other
transactions contemplated hereby.
SECTION 4.24. Intentionally omitted.
SECTION 4.25. MATERIAL CONTRACTS. Schedule 4.25 of the DHT Disclosure
Schedule lists all material contracts and agreements to which, as of the date
hereof, DHT is a party or by which is bound or under which DHT has or may
acquire any rights, which involve or relate to (i) obligations of DHT for
borrowed money or other indebtedness where the amount of such obligations
exceeds $50,000 individually, (ii) the lease by DHT, as lessee or lessor, of
real property for rent of more than $50,000 per annum, (iii) the purchase or
sale of goods (other than raw material to be purchased by DHT on terms that are
customary and consistent with the past
21
practice of DHT and in amounts and at prices substantially consistent with
past practices of DHT) or services with an aggregate minimum purchase price
of more than $50,000 per annum, (iv) rights to manufacture and/or distribute
any product which accounted for more than $50,000 of the consolidated
revenues of DHT during the fiscal year ended December 31, 2000 or under which
DHT received or paid license or other fees in excess of $50,000 during any
year, (v) the purchase or sale of assets or properties not in the ordinary
course of business having a purchase price in excess of $50,000, (vi) the
right (whether or not currently exercisable) to use, license (including any
"in-license" or "outlicense"), sublicense or otherwise exploit any
intellectual property right or other proprietary asset of DHT or any other
Person which requires the payment of a license or support fee or royalty in
excess of $50,000, (vii) any collaboration or joint venture or similar
arrangement, (viii) the restriction on the right or ability of DHT (A) to
compete with any other Person, (B) to acquire any product or other asset or
any services from any other Person, (C) to solicit, hire or retain any Person
as an employee, consultant or independent contractor, (D) to develop, sell,
supply, distribute, offer, support or service any product or any technology
or other asset to or for any other Person, (E) to perform services for any
other Person, or (F) to transact business or deal in any other manner with
any other Person; (ix) any currency hedging; (x) individual capital
expenditures or commitments in excess of $50,000; or (xi) powers of attorney.
All such contracts and agreements are duly and validly executed by DHT and
are in full force and effect in all material respects. DHT has not materially
violated or breached, or committed any material default under, any contract
or agreement, and, to the Knowledge of DHT, no other Person has materially
violated or breached, or committed any material default under, any contract
or agreement. No event has occurred which, after notice or the passage of
time or both, would constitute a default by DHT under any contract or
agreement or give any Person the right to (A) declare a default or exercise
any remedy under any contract or agreement, (B) receive or require a rebate,
chargeback, penalty or change in delivery schedule under any contract or
agreement, (C) accelerate the maturity or performance of any contract or
agreement, or (D) cancel, terminate or modify any contract or agreement, in
each case which, together with all other events of the types referred to in
clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be
expected to have a DHT Material Adverse Effect. All such contracts and
agreements will continue, after the Effective Time, to be binding in all
material respects in accordance with their respective terms until their
respective expiration dates.
SECTION 4.26. CERTAIN BUSINESS PRACTICES. Neither DHT nor to the Knowledge
of DHT any director, officer or employee of DHT has (i) used any funds for
unlawful contributions, gifts, entertainment or other unlawful expenses relating
to political activity, or (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, (assuming for purposes of this Section 4.26 that DHT is
subject to Section 30A of the Exchange Act).
SECTION 4.27. INSURANCE. DHT has made available to Cerner a summary of all
material insurance policies and all material self-insurance programs and
arrangements relating to the business, assets and operations of DHT. Subject to
expirations and renewals of insurance policies in the ordinary course of
business, all of such insurance policies is in full force and effect. Since
December 31, 1998, DHT has not received any notice or other communication
regarding any actual or possible (i) cancellation or invalidation of any
material insurance policy, (ii) refusal of any coverage or rejection of any
material claim under any insurance policy, or (iii) material
22
adjustment in the amount of the premiums payable with respect to any
insurance policy. There is no pending workers' compensation or other claim
under or based upon any insurance policy of DHT other than claims incurred in
the ordinary course of business.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Merger Sub represents and warrants to DHT as follows:
SECTION 5.1. ORGANIZATION. Merger Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of
Delaware. Merger Sub is a direct wholly-owned subsidiary of Cerner.
SECTION 5.2. CORPORATE AUTHORIZATION. Merger Sub has all requisite
corporate power and authority to enter into this agreement and to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Merger Sub. This Agreement has been
duly executed and delivered by Merger Sub and assuming this Agreement
constitutes a valid and binding agreement of DHT, constitutes a valid and
binding agreement of Merger Sub, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally or by general equity principles.
SECTION 5.3. NON-CONTRAVENTION. The execution, delivery and performance by
Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated by this Agreement do not and will not contravene or
conflict with its certificate of incorporation or bylaws.
SECTION 5.4. NO BUSINESS ACTIVITIES. Merger Sub has not conducted any
activities other than in connection with the organization of Merger Sub,the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated by this Agreement. Merger Sub has no subsidiaries.
SECTION 5.5. TAXES. Merger Sub has not taken or agreed to take, will not
take, and is not aware of any fact or circumstance that would prevent or impede
the Merger from qualifying as a 368 Reorganization.
ARTICLE VI
COVENANTS OF DHT
DHT agrees that:
SECTION 6.1. DHT INTERIM OPERATIONS. Except as set forth in the DHT
Disclosure Schedule or as otherwise expressly contemplated or permitted hereby,
or as required by any Governmental Entity of competent jurisdiction, without the
prior consent of Cerner (which
23
consent will not be unreasonably withheld or delayed), from the date hereof
until the Effective Time or the termination of this Agreement, DHT shall
conduct its business in all material respects in the ordinary course
consistent with past practice and shall use commercially reasonable efforts
to (i) preserve intact its present business organization, (ii) maintain in
effect all material foreign, federal, state and local licenses, approvals and
authorizations, including, without limitation, all material licenses and
permits that are required for DHT to carry on its business and (iii) preserve
existing relationships with its material customers, lenders, suppliers and
others having material business relationships with it. Without limiting the
generality of the foregoing, except as otherwise expressly contemplated or
permitted by this Agreement, or as required by a Governmental Entity of
competent jurisdiction, from the date hereof until the Effective Time or the
termination of this Agreement, without the prior consent of Cerner (which
consent will not be unreasonably withheld or delayed), DHT shall not:
(a) except to the extent required to comply with its obligations
hereunder or required by law, DHT shall not amend or propose to so amend
its Articles of Incorporation, Bylaws or other governing documents;
(b) split, combine or reclassify any shares of capital stock of
DHT or declare, set aside or pay any dividend;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery
or sale of, any shares of its capital stock of any class or any securities
convertible into or exercisable for, or any rights, warrants or options to
acquire, any such capital stock or any such convertible securities, other
than (A) a number of shares of capital stock equal to that number of
shares underlying options forfeited prior to the Closing by former DHT
employees, pursuant to the DHT Employee Plans, or (B) Common Stock upon
the exercise of Stock Rights, stock options or warrants in accordance with
their present terms or upon exercise of options issued pursuant to clause
(A) of this Section 6.1(c)(i); or (ii) amend in any respect any term of
any outstanding security of DHT;
(d) other than in connection with transactions not prohibited by
Section 6.1(e), incur any capital expenditures or any obligations or
liabilities in respect thereof, except for those (i) contemplated by the
capital expenditure budgets for DHT made available to Cerner, (ii)
disclosed in any DHT SEC Document filed prior to the date hereof, or (iii)
incurred in the ordinary course of business of DHT and consistent with
past practice;
(e) except in the ordinary course of business, acquire (whether
pursuant to cash merger, stock or asset purchase or otherwise) in one
transaction or series of related transactions (i) any assets (including
any equity interests) having a fair market value in excess of $50,000, or
(ii) all or substantially all of the equity interests of any Person or any
business or division of any Person having a fair market value in excess of
$50,000, but in no event shall the expenditures, commitments, obligations
or liabilities made, incurred or assumed, as the case may be, by DHT
pursuant to Sections 6.1(d) and 6.1(e) exceed $100,000 in the aggregate;
(f) sell, lease, license, perform services, encumber or otherwise
dispose of any assets, other than (i) sales or licenses of finished goods
or the performance of
24
services in the ordinary course of business consistent with past practice,
(ii) equipment and property no longer used in the operation of DHT's
business and (iii) assets related to discontinued operations of DHT or
any DHT Subsidiary;
(g) except as described in Section 6.1(g) of the DHT Disclosure
Schedule (i) incur any indebtedness for borrowed money or guarantee any
such indebtedness, (ii) issue or sell any debt securities or warrants or
rights to acquire any debt securities of DHT, (iii) make any loans,
advances or capital contributions to or investments in, any other Person,
or (iv) guarantee any debt securities or indebtedness of others, except,
in each case, in the ordinary course of business consistent with past
practice (which exception shall include, without limitation, borrowings
under DHT's existing credit agreements and overnight borrowings);
(h) (i) enter into any agreement or arrangement that limits or
otherwise restricts DHT or any successor thereto or that would, after the
Effective Time, limit or restrict DHT or the Surviving Corporation, or any
of their respective Affiliates, from engaging or competing in any line of
business or in any location, or (ii) enter into, amend, modify or
terminate any material contract, agreement or arrangement of DHT or
otherwise waive, release or assign any material rights, claims or benefits
of DHT thereunder; provided, however, that this Section 6.1(h) shall not
prevent DHT from entering into material contracts with customers,
suppliers or distributors, so long as such contracts are entered into in
the ordinary course and consistent with DHT's prior practice;
(i) (i) except as required by law or a written agreement existing on
or prior to the date hereof, or as consistent with past practice and
routine raises on anniversary dates, increase the amount of compensation
of any director or executive officer or make any increase in or commitment
to increase any employee benefits, (ii) except as required by law, a
written agreement existing on or prior to the date hereof, or a DHT
severance policy existing as of the date hereof, grant any severance or
termination pay to any director, officer or employee of DHT, (iii) adopt
any additional employee benefit plan or, except in the ordinary course of
business consistent with past practice and containing only normal and
customary terms, make any contribution to any existing such plan, (iv)
except as may be required by law or a written agreement or employee
benefit plan existing on or prior to the date hereof, or as contemplated
by this Agreement, enter into, amend in any respect, or accelerate the
vesting under any DHT Employee Plan, employment agreement, option, license
agreement or retirement agreements, or (v) hire any employee with an
annual base salary in excess of $75,000;
(j) change (x) DHT's methods of accounting in effect at December 31,
2000 except as required by changes in GAAP, as concurred with by its
independent public accountants, or (y) DHT's fiscal year;
(k) (i) settle, propose to settle or commence, any litigation,
investigation, arbitration, proceeding or other claim that is material to
the business of DHT, other than the payment, discharge or satisfaction, in
the ordinary course of business consistent with past practice of
liabilities (x) recognized or disclosed in the DHT Financial Statements
(or the notes thereto) or (y) incurred since the date of such DHT
Financial Statements in
25
the ordinary course of business consistent with past practice, or (ii)
make any material Tax election or enter into any settlement or
compromise of any Tax liability other than in the ordinary course of
business consistent with past practices and containing only normal and
customary terms;
(l) enter into any new material line of business not previously
disclosed or mentioned in any DHT SEC Document filed prior to the date
hereof,; or
(m) agree, resolve or commit to do any of the foregoing.
SECTION 6.2. ACQUISITION PROPOSALS; BOARD RECOMMENDATION.
(a) DHT agrees that it shall not, nor shall it authorize or
knowingly permit any officer, director, employee, investment banker,
attorney, accountant, agent or other advisor or representative of DHT,
directly or indirectly, to (i) solicit, initiate or knowingly facilitate
or encourage the submission of any Acquisition Proposal for DHT, (ii)
participate in any discussions or negotiations regarding, or furnish to
any Person any information with respect to, or take any other action
knowingly to facilitate any inquiries or the making of any proposal that
constitutes an Acquisition Proposal for DHT, (iii) grant any waiver or
release under any standstill or similar agreement with respect to any
class of DHT equity securities or (iv) enter into any agreement with
respect to any Acquisition Proposal for DHT; provided, however, that if,
at any time prior to receipt of the DHT Shareholder Approval, DHT's Board
of Directors reasonably determines in good faith, after receipt of written
advice from outside counsel and independent financial advisor of DHT, that
failing to take such action could reasonably be expected to be a breach of
its fiduciary duties to DHT's shareholders under applicable law, DHT may,
in response to an Acquisition Proposal for DHT made after the date of this
Agreement which was not solicited by DHT or its representatives or agents
and which did not otherwise result from a breach of this Section 6.2, and
which is reasonably likely to lead to a Superior Proposal, and subject to
compliance with Section 6.2(c) (x) furnish information with respect to DHT
to any person pursuant to a customary confidentiality agreement including
customary standstill provisions (as determined by DHT after consultation
with its outside counsel) and (y) participate in negotiations regarding
such Acquisition Proposal for DHT.
(b) Neither the Board of Directors of DHT nor any committee thereof
shall (i) withdraw, or propose publicly to withdraw, in a manner adverse
to Cerner, the approval or recommendation by such Board of Directors or
such committee of the Merger or this Agreement, (ii) subject to Section
6.2(d), modify, or propose publicly to modify, in a manner adverse to
Cerner, the approval or recommendation by such Board of Directors or such
committee of the Merger or this Agreement, (iii) approve or recommend, or
propose publicly to approve or recommend, any Acquisition Proposal for DHT
or (iv) approve or recommend, or propose to approve or recommend, or
execute or enter into, any letter of intent, agreement in principle,
merger agreement, acquisition agreement, option agreement or other similar
agreement or propose publicly or agree to do any of the foregoing related
to any Acquisition Proposal for DHT. Notwithstanding the foregoing, if at
any time prior to receipt of DHT Shareholder Approval the Board of
Directors of
26
DHT determines in good faith, after receipt of written opinions from
outside counsel and independent financial advisor of DHT, that it has
received an Acquisition Proposal for DHT that constitutes a Superior
Proposal which did not result from a breach of this Section 6.2 and
that failure to do one of the following could reasonably be expected to
be a breach of its fiduciary duties to DHT's shareholders under
applicable Florida Law, the Board of Directors of DHT may (subject to
this and the following sentences) (x) withdraw or modify its approval
or recommendation of the Merger and this Agreement, (y) approve or
recommend the Superior Proposal (as defined below), or (z) terminate
this Agreement and concurrently with or after such termination, if it
so chooses, cause DHT to enter into any Acquisition Agreement with
respect to the Superior Proposal, but in each of the cases set forth in
clause (x), (y) or (z), only at a time prior to receipt of the DHT
Shareholder Approval and only at a time that is after the tenth
business day following Cerner's receipt of written notice advising
Cerner that the Board of Directors of DHT has received a Superior
Proposal, specifying the material terms and conditions of such Superior
Proposal and identifying the person making such Superior Proposal;
provided, that in each of the cases set forth in clause (x), (y) or
(z), DHT shall pay to Cerner the fee provided for in Section 9.3(a) of
this Agreement prior to the Board of Directors of DHT taking any of the
actions described in such clauses; provided, however, that if the Board
of Directors of DHT determines in good faith that DHT's financial
inability to pay the fee provided for in Section 9.3(a) of this
Agreement prior to the Board of Directors of DHT taking any of the
actions described in such clauses could reasonably be expected to
result in a breach of its fiduciary duties to DHT's shareholders under
applicable Florida Law, then DHT shall not be required to pay Cerner
the fee provided for in Section 9.3(a) prior to taking the actions
described in such clauses, but shall deliver to Cerner prior to taking
such actions a promissory note, in a form reasonably acceptable to
Cerner, in the original principal amount of Two Million Dollars
($2,000,000.00), payable on the earlier of (1) six (6) months after the
date of the promissory note, or (2) the date upon which the
transactions contemplated by a Superior Proposal are consummated. Any
such withdrawal or modification of the recommendation of the Merger and
this Agreement and the transactions contemplated hereby shall not
change the approval of the Board of Directors of DHT for purposes of
causing Section 607.0902 of the Florida Law to be inapplicable to the
Merger and this Agreement and the transactions contemplated hereby. For
all purposes of this Agreement, a "Superior Proposal" means any bona
fide proposal made by a third party to acquire, directly or indirectly,
for consideration consisting of cash and/or securities, 100% of the DHT
Securities then outstanding (whether pursuant to a tender or exchange
offer, merger, consolidation, share exchange, or other business
combination) or all or substantially all the assets of DHT and
otherwise on terms which the Board of Directors of DHT determines in
its good faith judgment (based on a written opinion of DHT's financial
advisor) to be materially more favorable to DHT and its shareholders
than the Merger (taking into account any changes to the financial and
other contractual terms of this Agreement proposed by Cerner in
response to such proposal, the Person making the proposal, any legal or
regulatory considerations and all other relevant financial and
strategic considerations, including the timing of the consummation of
such transactions) and for which financing, to the extent required, is
then committed or which, in the good
27
faith judgment of the Board of Directors of DHT, is reasonably capable of
being obtained by such third party.
(c) In addition to the obligations of DHT set forth in Section
6.2(a) of this Agreement, DHT shall immediately advise Cerner orally and
in writing of any request for information or of any Acquisition Proposal
for DHT, the material terms and conditions of such request or Acquisition
Proposal for DHT and the identity of the person making such request or
Acquisition Proposal for DHT. DHT will keep Cerner fully informed of the
status and details (including amendments or proposed amendments) of any
such request or Acquisition Proposal for DHT.
(d) Nothing contained in this Section 6.2, and subject to the
payment of a termination fee if and to the extent required by Section
9.3(a), shall prohibit DHT from taking and disclosing to its shareholders
a position contemplated by Rule 14d-9 and 14e-2(a) promulgated under the
Exchange Act or from making any disclosure to DHT's shareholders if, in
the good faith judgment of the Board of Directors of DHT, after
consultation with outside counsel, failure so to disclose would be
inconsistent with its fiduciary duties to DHT's shareholders under
applicable Law; provided, however, neither DHT nor its Board of Directors
nor any committee thereof shall, except as permitted by Section 6.2(b),
withdraw or modify, or propose publicly to withdraw or modify, its
position with respect to the Merger or this Agreement or approve or
recommend, or propose publicly to approve or recommend, an Acquisition
Proposal for DHT.
SECTION 6.3. EMPLOYMENT AGREEMENTS. DHT agrees to use its reasonable best
efforts to cause each of the employees of DHT identified in Exhibit F hereto to
execute and deliver to Cerner employment agreements in the form attached hereto
as Exhibit G. DHT agrees that it will not terminate the employment of T.
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx, or any of the employees
of DHT identified on Exhibit F hereto, without the prior written consent of
Cerner, which shall not be unreasonably withheld.
SECTION 6.4. 401(k) PLANS. DHT shall, prior to the Closing Date, adopt any
and all resolutions that are necessary or appropriate to (i) fund all the DHT
401(k) plans, as referenced in Schedule 4.13 (the "401(k) Plans"), with any
profit sharing and/or matching contributions that have accrued as of the Closing
Date or that otherwise customarily would have been made by DHT prior to the
401(k) Plans' year ends; (ii) require that all 401(k) Plans' participant
elective deferrals have ceased one pay period prior to Closing such and that all
elective deferrals to be remitted to the 401(k) Plans have been made prior to
the Closing Date; (iii) except as set forth immediately above in (i) and (ii) of
this paragraph, cease all other contributions to the 401(k) Plans as of the day
before the Closing Date; (iv) terminate the 401(k) Plans; (v) fully vest all
participant account balances in the 401(k) Plans immediately before the Closing
Date; (vi) use all reasonable efforts to complete the Internal Revenue Service
("IRS") Form 5310 Application for Determination with respect to the termination
of the 401(k) Plans prior to Closing; and (vii) provide for distribution of the
assets of the 401(k) Plans following receipt of a favorable determination letter
from the IRS with respect to the termination and distribution of the assets of
the 401(k) Plans.
28
SECTION 6.5. INCENTIVE STOCK OPTIONS. The parties agree to work together
in good faith to determine the appropriate treatment of the incentive stock
options previously granted to certain DHT employees and DHT agrees to take
agreed upon reasonable actions related to such stock options prior to the
Closing Date, including informing the DHT employees of agreed upon employee
communication related thereto.
ARTICLE VII
COVENANTS OF DHT AND CERNER
The parties hereto agree that:
SECTION 7.1. COMMERCIALLY REASONABLE EFFORTS. Subject to the terms and
conditions hereof, each party will use commercially reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as promptly as
practicable after the execution hereof.
SECTION 7.2. CERTAIN FILINGS; COOPERATION IN RECEIPT OF CONSENTS; LISTING.
(a) Cerner agrees to use its reasonable best efforts to file with
the SEC on or before September 27, 2001, but in not event later than
October 17, 2001 (unless consented to by the parties hereto, which consent
will not be unreasonably withheld) the Registration Statement, in which
the Proxy Statement/Prospectus will be included as Cerner's prospectus and
shall use its reasonable efforts to have the Registration Statement
declared effective under the Securities Act as promptly as reasonably
practicable after such filing and to keep the Registration Statement
effective as long as is necessary to consummate the Merger and the
transactions contemplated thereby. DHT shall mail the Proxy
Statement/Prospectus to its shareholders as promptly as reasonably
practicable after the Registration Statement is declared effective under
the Securities Act and, if necessary, after the Proxy Statement/Prospectus
shall have been so mailed, promptly circulate amended, supplemental or
supplemented proxy material, and, if required in connection therewith,
resolicit proxies. On or before the effectiveness of the Registration
Statement, DHT shall file the Proxy/Prospectus with the SEC. Cerner and
DHT shall take any action (other than qualifying to do business in any
jurisdiction in which it is not now so qualified or to file a general
consent to service of process) required to be taken under any applicable
state securities or blue sky laws in connection with the issuance of
shares of Cerner Common Stock in the Merger.
(b) No amendment or supplement to the Proxy Statement/Prospectus
will be made by DHT or Cerner without the approval of the other party,
which will not be unreasonably withheld or delayed. Each party will advise
the other party, promptly after it receives notice thereof, of (i) the
time when the Registration Statement has become effective or any
supplement or amendment has been filed, (ii) the issuance of any stop
order, (iii) the suspension of the qualification of the shares of Cerner
Common Stock issuable in connection with the Merger for offering or sale
in any jurisdiction, or (iv) any request by the SEC for amendment of the
Registration Statement or Proxy
29
Statement/Prospectus or comments thereon and responses thereto or
requests by the SEC for additional information, in each case, whether
orally or in writing. If at any time prior to the Effective Time, DHT
or Cerner discovers any information relating to either party, or any of
their respective Affiliates, officers or directors, that should be set
forth in an amendment or supplement to the Proxy Statement/Prospectus,
so that such document would not include any misstatement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, the party that discovers such information shall
promptly notify the other party hereto and an appropriate amendment or
supplement describing such information shall be promptly filed with
respect thereto, and with respect to the Registration Statement, as the
case may be, with the SEC and, to the extent required by law or
regulation, disseminated to the shareholders of DHT.
(c) DHT and Cerner shall cooperate with one another in (i)
determining whether any other action by or in respect of, or filing with,
any Governmental Entity is required, or any actions, consents, approvals
or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions
contemplated hereby, (ii) seeking any such other actions, consents,
approvals or waivers or making any such filings, furnishing information
required in connection therewith and seeking promptly to obtain any such
actions, consents, approvals or waivers, (iii) setting a mutually
acceptable date for the DHT Shareholders Meeting, and (iv) taking all
lawful action to call, give notice of, convene and hold the DHT
Shareholders Meeting for the purpose of obtaining the requisite votes to
approve and adopt this Agreement, the Merger and the other matters
contemplated by this Agreement. The Board of Directors of DHT shall,
subject to its fiduciary duties under applicable law, declare the
advisability of and recommend adoption and approval of this Agreement, the
Merger and the other matters contemplated by this Agreement by the
shareholders of DHT, and shall not, subject to its fiduciary duties under
applicable law, subject to the payment of a termination fee if and to the
extent required by Section 9.3(a), withdraw, modify or materially qualify
in any manner adverse to Cerner such recommendation or take any action or
make any statement in connection with the DHT Shareholder Meeting
materially inconsistent with such recommendation (any such withdrawal,
modification, qualification or statement (whether or not required), an
"Adverse Change in the DHT Recommendation").
(d) Each party shall afford the other party reasonable opportunities
to review any communication given by it to, and consult with each other in
advance of any meeting or conference with, any Governmental Entity or, in
connection with any proceeding by a private party, with any other Person,
and to the extent permitted by the applicable Governmental Entity or other
Person, give the other party the opportunity to attend and participate in
such meetings and conferences, in each case in connection with the
transactions contemplated hereby.
(e) Cerner agrees to use its reasonable best efforts to cause the
shares of Cerner Common Stock to be issued to DHT Shareholders upon
conversion of shares of Common Stock in accordance with this Agreement,
the Articles of Merger and the Certificate of Merger to be approved for
listing upon issuance on the Nasdaq National Market.
30
(f) Upon the terms and subject to the conditions of this Agreement,
Cerner shall cause the Certificate of Merger to be executed and filed with
the Secretary of State of the State of Delaware and DHT will execute and
file the Articles of Merger with the Secretary of State of the State of
Florida.
SECTION 7.3. PUBLIC ANNOUNCEMENTS. Prior to the Effective Time, Cerner and
DHT shall use their reasonable best efforts to develop a joint communications
plan and each party shall use its reasonable best efforts (i) to ensure that all
press releases and other public statements with respect to the transactions
contemplated hereby shall be consistent with such joint communications plan, and
(ii) unless otherwise required by applicable law or by obligations pursuant to
any rules of the Nasdaq National Market, to consult with each other before
issuing any press release or, to the extent practical, otherwise making any
public statement with respect to this Agreement or the transactions contemplated
hereby; provided, however, that nothing in this Section 7.3 shall be deemed to
prohibit any party from making any timely disclosure which its counsel deems
necessary or advisable in order to satisfy such party's disclosure obligations
under applicable Law if such party shall use reasonable efforts to notify the
other party of the contents of the disclosure prior to such disclosure.
SECTION 7.4. ACCESS TO INFORMATION; NOTIFICATION OF CERTAIN MATTERS.
(a) From the date hereof until the Effective Time or the termination
of this Agreement and subject to applicable law, DHT and Cerner shall (i)
afford each other and their counsel, financial advisors, auditors and
other authorized representatives reasonable access during normal business
hours to their offices, properties, books, records, contracts,
commitments, officers and employees and all other information concerning
it and its business, properties, assets, condition (financial or
otherwise) or prospects, (ii) consistent with its legal obligations,
furnish or make available to each other and their counsel, financial
advisors, auditors and other authorized representatives such financial and
operating data and other information as such other party may reasonably
request and (iii) instruct its employees, counsel, financial advisors,
auditors and other authorized representatives to cooperate with the
reasonable requests of such other party in their investigation. Any
investigation pursuant to this Section 7.4 shall be conducted in such
manner as not to interfere unreasonably with the conduct of the business
of the other party. Except as otherwise agreed to in writing by a party,
unless and until the Effective Time, each party will be bound by, and all
information received with respect to the other party pursuant to Section
7.4 and otherwise shall be subject to, the terms of that certain
confidentiality agreement entered into with DHT, dated May 21, 2001 (the
"Confidentiality Agreement"). In the event that this Agreement is
terminated and the Merger is not consummated, the parties to this
Agreement affirm their understanding that the terms of the Confidentiality
Agreement will survive such termination and will continue in full force
and effect. No information or knowledge obtained in any investigation
pursuant to this Section 7.4 shall affect or be deemed to modify any
representation or warranty made by any party hereunder.
31
(b) Each party hereto shall give prompt notice to each other party
hereto of:
(i) the receipt by such party or any of such party's
Subsidiaries of any notice or other communication from any Person
alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement;
(ii) the receipt by such party or any of such party's
Subsidiaries of any notice or other communication from any
Governmental Entity in connection with any of the transactions
contemplated by this Agreement;
(iii) such party's obtaining Knowledge of any actions, suits,
claims, investigations or proceedings commenced, threatened against,
relating to or involving or otherwise affecting either DHT or
Cerner, as the case may be, or any Subsidiary of either of them,
provided, in the case of Cerner, that such litigation relates to the
consummation of the transactions contemplated by this Agreement; or
(iv) such party's obtaining Knowledge of the occurrence, or
failure to occur, of any event which occurrence or failure to occur
will be likely to cause (A) any representation or warranty contained
in this Agreement to be untrue or inaccurate in any material
respect, or (B) any material failure of any party to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement; provided, however, that no
such notification shall limit or otherwise affect the
representations, warranties, obligations or remedies of the parties
to the conditions to the obligations of the parties hereunder.
SECTION 7.5. FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of DHT or Merger Sub, any deeds,
bills of sale, assignments or assurances and to take and do, in the name and on
behalf of DHT or Merger Sub, any other actions and things to vest, perfect or
confirm of record or otherwise in the Surviving Corporation any and all right,
title and interest in, to and under any of the rights, properties or assets of
DHT or Merger Sub acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with the Merger.
SECTION 7.6. TAX TREATMENT.
(a) Prior to the Effective Time, each party shall cooperate with the
other party and shall use its reasonable best efforts to cause the Merger
to qualify as a 368 Reorganization, and will not knowingly take any action
reasonably likely to cause the Merger not so to qualify. The Surviving
Corporation shall not take any action after the Effective Time that would
cause the Merger not to qualify a 368 Reorganization.
(b) Each party shall cooperate with the other party and shall use
its reasonable best efforts to obtain the opinions referred to in Sections
8.2(b) and 8.3(b) and in connection therewith, each of Cerner and DHT
shall deliver to such counsel customary representation letters
substantially in the forms attached hereto as Exhibit C and Exhibit
32
D (the "Cerner Representation Letter" and the "DHT Representation Letter",
respectively) or otherwise in form and substance reasonably satisfactory
to such counsel.
SECTION 7.7. AFFILIATES. Not less than 45 days prior to anticipated the
Effective Time, DHT shall deliver to Cerner a letter identifying all persons
who, in the reasonable judgment of DHT, may be deemed at the time this Agreement
is submitted for adoption by the shareholders of DHT, "affiliates" of DHT for
purposes of Rule 145 under the Securities Act and such list shall be updated as
necessary to reflect changes from the date hereof. DHT shall use reasonable best
efforts to cause each Person identified on such list to deliver to Cerner not
less than 10 days prior to the anticipated Effective Time, a written agreement
substantially in the form attached as Exhibit E hereto (an "Affiliate
Agreement"), which Affiliate Agreements shall require compliance with Rule 145
under the Securities Act.
SECTION 7.8. BENEFIT MATTERS. Cerner shall negotiate in good faith with
those employees of DHT identified in Exhibit F to reach mutually agreeable terms
which will be set forth in an employment agreement in the form attached hereto
as Exhibit G for their continued employment by Cerner or a Cerner Subsidiary
following the Merger. Cerner and DHT will work together to transition DHT
employees to Cerner employee benefit plans, as appropriate.
SECTION 7.9. INDEMNIFICATION AND INSURANCE.
(a) The Certificate of Incorporation and Bylaws of Merger Sub shall
contain provisions with respect to indemnification and exculpation similar
to those set forth in the Articles of Incorporation and Bylaws of DHT,
which provisions Cerner shall not and shall cause Merger Sub not to amend,
repeal or otherwise modify for a period of five (5) years from the
Effective Time in any manner that would materially and adversely affect
the rights thereunder of individuals who at the Effective Time were
directors, officers, employees or agents of DHT, unless such amendment,
repeal or other modification is required by applicable law.
(b) From and after the Effective Time, Cerner and Merger Sub agree
that they will indemnify and hold harmless each past and present director
and officer of DHT (when acting in such capacity) determined as of the
Effective Time (the "Indemnified Parties"), against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with
any claim, action, suit, proceeding or investigation whether civil,
criminal, administrative or investigative, arising out of or pertaining to
matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the
fullest extent that DHT would have been permitted under Florida Law and
its Articles of Incorporation or Bylaws in effect on the date of this
Agreement to indemnify such person (and Cerner and Merger Sub shall also
advance expenses as incurred to the fullest extent permitted under
applicable Florida Law and the Articles of Incorporation and the Bylaws of
DHT, provided that the person to whom expenses are advanced provides an
undertaking to repay such advances if it is ultimately determined that
such person is not entitled to indemnification).
33
(c) Solely with respect to the information pertaining to Cerner and
included in the Registration Statement (whether expressly or by
incorporation by reference), Cerner shall indemnify, defend, and hold
harmless Indemnified Parties against all costs, fees, or expenses
(including reasonable attorneys' fees) judgments, fines, penalties,
losses, damages, liabilities, and amounts paid in settlement in connection
with any claim, action, suit, proceeding, or investigation, whether civil,
administrative, or investigative, arising out of or under the Securities
Act or the Exchange Act or the state blue sky or securities Laws or any
state blue sky or securities Laws based in whole or in part on (i) any
untrue statement or alleged untrue statement of a material fact contained
in such documents including any amendment or supplement to such document),
(ii) any omission or alleged omission to state in such documents a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any violation of Cerner or any
of its Subsidiaries of any such Laws in connection with such documents.
(d) Any Indemnified Party wishing to claim indemnification under
Sections 7.10(b) or (c) upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Cerner thereof in
writing, but the failure to so notify shall not relieve Cerner of any
liability it may have to such Indemnified Party if such failure does not
materially prejudice Cerner. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) Cerner or Merger Sub shall have the right to assume the defense
thereof, and Cerner shall not be liable to such Indemnified Parties for
any legal expenses of other counsel or any other expenses subsequently
incurred by such Indemnified Parties in connection with the defense
thereof, except that if Cerner or Merger Sub elects not to assume such
defense, or if there are any issues which raise material conflicts of
interest between Cerner or Merger Sub and the Indemnified Parties, the
Indemnified Parties may retain counsel reasonably satisfactory to Cerner,
and Cerner or Merger Sub shall pay all reasonable fees and expenses of
such counsel for the Indemnified Parties; provided, however, that Cerner
shall be obligated pursuant to this paragraph (c) to pay for only one firm
or counsel for all Indemnified Parties and, as applicable, for local
counsel, and provided, however, the costs of more than one firm or counsel
shall be paid if the Indemnified Parties cannot be represented by one firm
or counsel because of a conflict of interest, (ii) the Indemnified Parties
will cooperate in the defense of any such matter, and (iii) Cerner shall
not be liable for any settlement effected without its prior written
consent (which consent shall not be unreasonably withheld or delayed).
(e) For a period of five (5) years after the Effective Time and to
the extent available pursuant to the DHT directors and officers insurance
policy, Cerner or Merger Sub shall maintain in effect policies of
directors' and officers' liability insurance covering those persons who
are currently covered by DHT's directors' and officers' liability
insurance policy on terms (including the amounts of coverage and the
amounts of deductibles, if any) that are no less favorable to them in any
material respect than the terms now applicable to them under DHT's current
insurance policies; provided that Cerner and Merger Sub shall not be
required to pay an annual premium for such insurance in excess of 150% of
the last annual premium paid prior to the date hereof, but in such case
shall purchase as much coverage as possible for such amount.
34
(f) If Cerner or Merger Sub or any of their 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 in 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 case, proper provisions shall be made so that the
successors and assigns of Cerner or Merger Sub, as the case may be, shall
assume all of the obligations set forth in this Section 7.10; provided,
that the failure to make such provisions shall not affect the validity of
any such consolidation, merger or transfer.
(g) The provisions of this Section 7.10 are intended to be for the
benefit of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and representatives.
(h) Notwithstanding the foregoing, neither Cerner nor Merger Sub
shall have any obligation to indemnify or exculpate any officer or
director or DHT from liability to Cerner, Merger Sub or Cerner's
stockholders for any acts related to or arising out of the Merger, this
Agreement or the transactions contemplated hereby if and to the extent
such person's conduct was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct.
SECTION 7.10. SEC REPORTS. Each party shall file all documents and reports
required to be filed by each of them with the SEC between the date of this
Agreement and the Effective Time and shall deliver to the other party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any reports filed with the SEC, such financial statements will
represent fairly the present consolidated financial position of the entity
filing such statements as of the dates indicated and the consolidated results of
operations, changes in stockholders' equity, and cash flows for the periods
then-ended in accordance with GAAP (subject in the case of interim financial
statements to normal recurring year-end adjustments and except for the
permissible absence of footnote disclosure in the unaudited financial
statements). As of their respective dates, such reports filed with the SEC will
comply in all material respects with the Securities Act and the Exchange Act and
will not contain an untrue statement of a material fact or omit 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.
SECTION 7.11. DHT INTERIM BALANCE SHEET. On or before the Determination
Date, DHT shall deliver to Cerner an unaudited balance sheet of DHT as of the
latest month end that is no later than 15 days prior to the Closing Date
prepared consistently with the unaudited balance sheets included in the latest
Quarterly Report on Form 10-Q filed by DHT prior to the Closing Date.
SECTION 7.12. DHT STOCK OWNERSHIP. On or before the Closing Date, DHT
shall deliver to Cerner a schedule, certified by the Chief Executive Officer of
DHT, setting forth the total number of shares of Common Stock outstanding as of
the close of business on the Determination Date.
35
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.1. Conditions to the Obligations of Each Party. The respective
obligations of DHT, Cerner and Merger Sub to consummate the Merger are subject
to the satisfaction or waiver by DHT and Cerner pursuant to Section 10.2 hereof
on or prior to the Closing Date of the following conditions:
(a) SHAREHOLDER APPROVAL. The DHT Shareholder Approval shall have
been obtained;
(b) SECURITIES LAWS. (i) The Registration Statement shall have
become effective in accordance with the provisions of the Securities Act,
no stop order suspending the effectiveness of the Registration Statement
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated or threatened by the SEC and not concluded or
withdrawn, (ii) all state securities or blue sky authorizations necessary
to carry out the transactions contemplated hereby shall have been obtained
and be in effect, and (iii) the Nasdaq National Market shall have approved
the listing of the Cerner Common Stock portion of the Merger
Consideration, subject to notice of issuance;
(c) OTHER REGULATORY APPROVALS. Other than the filings provided for
by Article II, all authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations of waiting periods imposed
by, any Governmental Entity the failure of which to obtain would have a
DHT Material Adverse Effect, a Cerner Material Adverse Effect or a
Surviving Corporation Material Adverse Effect, shall have been filed,
occurred or been obtained; and
(d) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No Laws shall have
been adopted or promulgated, and no temporary restraining order,
preliminary or permanent injunction or other order issued by a court or
other Governmental Entity of competent jurisdiction shall be in effect,
(i) having the effect of making the Merger illegal or otherwise
prohibiting, enjoining or restraining consummation of the Merger or (ii)
which otherwise would reasonably be expected to have a Surviving
Corporation Material Adverse Effect after giving effect to the Merger.
SECTION 8.2. CONDITIONS TO THE OBLIGATIONS OF CERNER AND MERGER SUB. The
obligations of Cerner and Merger Sub to consummate the Merger are subject to the
satisfaction, or waiver by Cerner pursuant to Section 10.2 hereof, on or prior
to the Closing Date, of the following further conditions:
(a) REPRESENTATIONS AND COVENANTS. (i) DHT shall have performed in
all material respects all of its obligations hereunder required to be
performed by it at or prior to the time of the filing of the Articles of
Merger and the Certificate of Merger; (ii) except for changes contemplated
by this Agreement or as a result of the transactions contemplated hereby,
the representations and warranties of DHT in this Agreement that are
qualified as to materiality, DHT Material Adverse Effect or Surviving
Corporation
36
Material Adverse Effect shall be accurate, and any such representations
and warranties that are not so qualified shall be accurate, in all
material respects, as of the date of this Agreement and as of the
Effective Time (except in each case for representations and warranties
that address matters only as of a specific date, in which case such
representations and warranties qualified as to materiality, DHT
Material Adverse Effect or Surviving Corporation Material Adverse
Effect shall be true and correct, and those not so qualified shall be
true and correct in all material respects, on and as of such earlier
date); and (iii) Cerner shall have received a certificate signed by the
Chief Executive Officer or Chief Financial Officer of DHT to the
foregoing effect;
(b) TAX OPINION. Cerner shall have received an opinion of Xxxxxxx,
Mag & Fizzell, P.C. in form and substance reasonably satisfactory to
Cerner, on the basis of certain facts, representations and assumptions set
forth in such opinion, dated as of the date of the filing of the Articles
of Merger and the Certificate of Merger, to the effect that the Merger
will qualify for federal income tax purposes as a 368 Reorganization and
that each of Cerner, DHT and Merger Sub will be a party to the
reorganization within the meaning of Section 368(b) of the Code. In
rendering such opinion, such counsel shall be entitled to rely upon
representations of officers of Cerner, DHT and Merger Sub;
(c) AFFILIATE AGREEMENTS. Cerner shall have received from each
Person named in the letter referred to in Section 7.7 an executed copy
of an Affiliate Agreement;
(d) OPINION OF COUNSEL. Cerner shall have received an opinion
of Xxxxxxx Xxxxxx, P.A., in substantially the form attached hereto as
Exhibit H; and
(e) NO MATERIAL ADVERSE CHANGE. There shall have been no DHT
Material Adverse Change from the date hereof through the Closing Date.
SECTION 8.3. CONDITIONS TO THE OBLIGATIONS OF DHT. The obligations of DHT
to consummate the Merger are subject to the satisfaction, or waiver by DHT
pursuant to Section 10.2 hereof, on or prior to the Closing Date, of the
following further conditions:
(a) REPRESENTATIONS AND COVENANTS. (i) Cerner shall have performed
in all material respects all of its obligations hereunder required to be
performed by it at or prior to the time of the filing of the Articles of
Merger and the Certificate of Merger; (ii) the representations and
warranties of Cerner and Merger Sub in this Agreement that are qualified
as to materiality, Cerner Material Adverse Effect or Surviving Corporation
Material Adverse Effect shall be accurate, and any such representations
and warranties that are not so qualified shall be accurate, in all
material respects, as of the date of this Agreement and as of the
Effective Time (except for representations and warranties which address
matters only as of a specific date, in which case such representations and
warranties qualified as to materiality, Cerner Material Adverse Effect or
Surviving Corporation Material Adverse Effect shall be true and correct,
and those not so qualified shall be true and correct in all material
respects, on and as of such earlier date); and (iii) DHT shall have
received a certificate signed by the Chief Executive Officer or Chief
Financial Officer of Cerner and Merger Sub to the foregoing effect;
37
(b) TAX OPINION. DHT shall have received an opinion of Xxxxxxx Mag &
Fizzell, P.C., in form and substance reasonably satisfactory to DHT, on
the basis of certain facts, representations and assumptions set forth in
such opinion, dated as of the date of the filing of the Articles of Merger
and the Certificate of Merger, to the effect that the Merger will qualify
for federal income tax purposes as a 368 Reorganization and that each of
Cerner, Merger Sub and DHT will be a party to the reorganization within
the meaning of Section 368(b) of the Code. In rendering such opinion, such
counsel shall be entitled to rely upon representations of officers of
Cerner, Merger Sub and DHT;
(c) OPINION OF COUNSEL. DHT shall have received an opinion of
Xxxxxxx, Mag & Fizzell, P.C., in substantially the form attached hereto
as Exhibit I;
(d) FAIRNESS OPINION. DHT shall have received the written opinion of
XX Xxxxx Securities Corporation, dated as of the date hereof, to the
effect that, as of such date, the Merger Consideration is fair, from a
financial point of view, to the holders of shares of Common Stock (other
than Cerner and any Cerner Subsidiary);
(e) CERNER COMMON STOCK PRICE. The Average Cerner Stock Price
determined as of the Closing Date shall not be less than $43.00 per
share;
(f) NO MATERIAL ADVERSE CHANGE. There shall have been no
Cerner Material Adverse Change from the date hereof through the Closing
Date; and
(g) PAYMENT OF MERGER CONSIDERATION. Cerner shall have delivered or
shall have caused to be delivered to the Exchange Agent the aggregate
Merger Consideration payable to all holders of the Common Stock and the
Preferred Stock pursuant to the terms of this Agreement.
ARTICLE IX
TERMINATION
SECTION 9.1. TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time:
(a) by mutual written agreement of Cerner and DHT;
(b) by either DHT or Cerner, if
(i) the Merger shall not have been consummated by February 28,
2002 (the "Expiration Date"); PROVIDED, HOWEVER, that the right to
terminate this Agreement under this Section 9.1(b)(i) shall not be
available to any party whose breach of any provision of this
Agreement has resulted in the failure of the Merger to occur on or
before the Expiration Date;
(ii) there shall be any Law that makes consummation of the
Merger illegal or otherwise prohibited or any judgment, injunction,
order or decree of any Governmental Entity having competent
jurisdiction enjoining Cerner, DHT or the
38
Merger Sub from consummating the Merger is entered and such
judgment, injunction, judgment or order shall have become final
and nonappealable and, prior to such termination, the parties
shall have used reasonable best efforts to resist, resolve or
lift, as applicable, such law, regulation, judgment, injunction,
order or decree; or
(iii) the holders of Common Stock or the Preferred Stock do
not approve this Agreement at the DHT Shareholder Meeting on or
before the Expiration Date.
(c) by Cerner, (i) if there shall have occurred an Adverse Change in
the DHT Recommendation (or the Board of Directors of DHT have resolved to
take such action); (ii) if there shall have occurred a breach of Section
6.2 by DHT or any of its officers, directors, employees, advisors or
agents; (iii) DHT shall have failed to include in the Proxy
Statement/Prospectus the recommendation of the Board of Directors of DHT
in favor of the adoption and approval of this Agreement and the approval
of the Merger; (iv) the Board of Directors of DHT shall have approved,
endorsed or recommended any Acquisition Proposal of DHT; (v) a tender or
exchange offer relating to securities of DHT shall have been commenced and
DHT shall not have sent to its security holders, within ten business days
after the commencement of such tender or exchange offer, a statement
disclosing that DHT recommends rejection of such tender or exchange offer;
or (vi) DHT or DHT's Board of Directors or any committee thereof shall
have resolved to do or permit any of the foregoing;
(d) by Cerner, if a breach of any representation, warranty, covenant
or agreement on the part of DHT set forth in this Agreement shall have
occurred that would cause the condition set forth in Section 8.2(a) not to
be satisfied, and such condition shall be incapable of being satisfied by
the Expiration Date;
(e) by DHT, if a breach of any representation, warranty, covenant or
agreement on the part of Cerner set forth in this Agreement shall have
occurred that would cause the condition set forth in Section 8.3(a) not to
be satisfied, and such condition is incapable of being satisfied by the
Expiration Date;
(f) by DHT, pursuant to the provisions of Section 6.2(b);
(g) automatically if the transactions contemplated herein are
enjoined by a court of competent jurisdiction for a period extending
beyond 90 days; or
(h) by DHT, if all conditions set forth in Article VIII, other than
the condition set forth in Section 8.3(e), have been satisfied for at
least fifteen consecutive Business Days.
SECTION 9.2. EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 9.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of Cerner or DHT or their
respective officers or directors except with respect to the provisions of
Sections 9.3, 10.1, 10.4, 10.5, and 10.10 of this Agreement which
39
provisions shall remain in full force and effect and survive any termination of
this Agreement. The Confidentiality Agreement shall survive termination of this
Agreement.
SECTION 9.3. TERMINATION FEES; LIQUIDATED DAMAGES; OTHER FEES.
(a) DHT agrees to pay to Cerner upon demand Two Million Dollars
($2,000,000) (i) as a termination fee if this Agreement is terminated
pursuant to Sections 9.1(c) or 9.1(f), or (ii) as liquidated damages if
all conditions to DHT's obligations to consummate the Merger under
Sections 8.1 and 8.3 have been satisfied, and DHT does not perform its
obligation to consummate the Merger pursuant to this Agreement. In such
event as described in this paragraph, the payments provided under this
Section 9.3(a) shall be the sole and exclusive remedy available to Cerner
and this Agreement shall automatically terminate.
(b) Cerner agrees to pay to DHT upon demand liquidated damages of
Two Million Dollars ($2,000,000) if all conditions to Cerner's obligations
to consummate the Merger under Sections 8.1 and 8.2 have been satisfied,
and Cerner does not perform its obligation to consummate the Merger
pursuant to this Agreement. In such event as described in this paragraph,
the payments provided under this Section 9.3(b) shall be the sole and
exclusive remedy available to DHT and this Agreement shall automatically
terminate.
(c) Except as set forth in this Section 9.3, all Expenses incurred
in connection herewith and the transactions contemplated hereby shall be
paid by the party incurring such Expenses, whether or not the Merger is
consummated. All DHT Expenses will be recorded prior to the Closing Date.
As used in this Agreement, "Expenses" includes all out-of-pocket expenses
(including, without limitation, all fees and expenses of counsel,
accountants, investment bankers, experts and consultants to a party hereto
and its affiliates) incurred by a party or on its behalf in connection
with or related to the authorization, preparation, negotiation, execution
and performance of this Agreement and the transactions contemplated
hereby, including the preparation, printing, filing and mailing of the
Proxy Statement/Prospectus and the solicitation of shareholder approval.
Section 9.3 of the DHT Disclosure Schedules sets forth all of the
transaction costs and fees (including severance costs for employees) of
DHT that are payable as a result of this Agreement and the consummation of
the transactions contemplated hereby.
(d) If this Agreement is terminated pursuant to Section 9.1, no
termination fee or liquidated damages shall be payable by either party
except as provided in Section 9.3(a)(i).
(e) In the event of a dispute regarding the payment of a termination
fee or liquidated damages pursuant to this Section 9.3 (including without
limitation collection of the promissory note described in Section 6.2(b)),
the prevailing party in such dispute shall be entitled to receive from the
other party all reasonable attorneys fees and costs incurred by the
prevailing party in connection with such dispute.
40
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, or by telecopy or facsimile, upon confirmation of
receipt, in each case, if on a Business Day, and otherwise on the next Business
Day, (b) on the fifth Business Day following the date of mailing if delivered by
registered or certified mail, return receipt requested, postage prepaid, or (c)
the second Business Day if delivered by nationally recognized overnight courier.
All notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
if to the Surviving Corporation, to the address set forth below
for Cerner and DHT, including copies;
if to Cerner and/or Merger Sub, to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
with copies to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
if to DHT to:
Dynamic Healthcare Technologies, Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx Xxxxxx, P.A.
International Place, Suite 4000
000 X.X. Xxxxxx Xxxxxx
00
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
SECTION 10.2. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived prior
to the Effective Time if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Cerner and DHT or in
the case of a waiver, by the party against whom the waiver is to be
effective; except any condition which, if not satisfied, would result in
the violation of any Law or applicable governmental regulation, which
violation would have a DHT Material Adverse Effect or a Cerner Material
Adverse Effect and provided that after the DHT Shareholder Approval, no
such amendment or waiver shall, without the further approval of such
shareholders, be made that would require such approval under any
applicable law, rule or regulation.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 10.3. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
SECTION 10.4. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
without regard to any principles of Delaware conflicts or choice of law.
SECTION 10.5. COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto.
SECTION 10.6. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and except as
specifically provided in Section 7.9 nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 10.7. INTERPRETATION. When a reference is made in this Agreement
to Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents and headings contained in this
42
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
SECTION 10.8. ENFORCEMENT. Except as specifically provided in Section 9.3,
the parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that, except as specifically provided
in Section 9.3, the parties shall be entitled to specific performance of the
terms hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
SECTION 10.9. ENTIRE AGREEMENT. This Agreement (together with the DHT
Disclosure Schedule, the Cerner Disclosure Schedule, and the exhibits and
schedules hereto), the Confidentiality Agreement and the Option Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter hereof.
SECTION 10.10. SEVERABILITY. If any term, provision, covenant or
restriction set forth in this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not deemed by a party (acting reasonably and in good
faith) to be materially adverse to that party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in order that the
transactions contemplated hereby may be consummated as originally contemplated
to the fullest extent possible.
SECTION 10.11. OBLIGATION OF CERNER. Whenever this Agreement requires
Cerner, the Merger Sub, or other Cerner Subsidiary to take any action, such
requirement shall be deemed to include an undertaking by Cerner to cause the
Cerner Subsidiaries, including the Merger Sub or the Surviving Corporation to
take such action.
SECTION 10.12. FIDUCIARY DUTIES. Subject to Section 6.2 of this
Agreement, no provision of this Agreement shall be construed to prevent the
exercise by any director of any party hereto of his or her fiduciary duty.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CERNER CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxxxxx, Vice President and
Chief Financial Officer
DYNAMIC HEALTHCARE TECHNOLOGIES, INC.
By:
---------------------------------------
T. Xxxxxxxxxxx Xxxxx, Chief Executive
Officer
CERNER HOLDINGS, INC.
By:
---------------------------------------
Xxxx X. Xxxxxxxx, Vice President and
Chief Financial Officer
44
APPENDIX I
DEFINITIONS
"Acquisition Proposal for DHT" means any offer or proposal for a merger,
consolidation, share exchange, business combination, reorganization,
recapitalization, issuance of securities, liquidation, dissolution, tender offer
or exchange offer or other similar transaction or series of transactions
involving, or any purchase of 10% or more of the assets, or directly or
indirectly acquires beneficial ownership of securities representing, or
exchangeable for or convertible into, more than 10% of the outstanding
securities of any class of voting securities of DHT or in which DHT issues
securities representing 10% of the outstanding securities of any class of voting
securities of DHT, other than the transactions contemplated by this Agreement.
"Affiliate" means, with respect to any Person, any other Person, directly
or indirectly, controlling, controlled by, or under common control with, such
Person. For purposes of this definition, the term "control" (including the
correlative terms "controlling", "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, or partnership or other ownership interests, by
contract, or otherwise.
"Average Cerner Stock Price" means the average of the closing sales price
per share of Cerner Common Stock as reported by Nasdaq on each of the 15
consecutive trading days immediately preceding the first trading day prior to
the date of the Determination Date.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by Law to close in the State of Missouri or the
State of Florida.
"Cerner Balance Sheet" means Cerner's audited balance sheet dated December
30, 2000.
"Cerner Common Stock" means the common stock of Cerner, par value $.01 per
share, including the associated rights (the "Cerner Stock Purchase Rights") to
purchase shares of Series A Preferred Stock of Cerner pursuant to the Amended
and Restated Rights Agreement, dated as of March 12, 1999, between Cerner and
UMB Bank, n.a., as Rights Agent. All references in this Agreement to Cerner
Common Stock shall be deemed to include the Cerner Stock Purchase Rights.
"Cerner Disclosure Schedule" means the schedule delivered to DHT by Cerner
pursuant to Article III hereof containing exceptions to the representations and
warranties of Cerner set forth in such Article III.
"Cerner SEC Documents" means (i) all forms, reports, and documents
required to be filed by Cerner with the SEC Under the Securities Act or the
Exchange Act filed since December 30, 2000, and (ii) all other reports, filings,
registration statements and other documents filed by Cerner with the SEC under
the Exchange Act or the Securities Act filed since December 30, 2000.
"Closing" means the closing of the Merger in the time and manner
contemplated in Section 2.1(c) of this Agreement.
iv
"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $.01 per share, of DHT.
"Confidentiality Agreement" means the Confidentiality Agreement by and
between Cerner and DHT defined in Section 7.4 of this Agreement.
"Copyrights" mean all copyrightable works in both published works and
unpublished works registered and unregistered, including, without limitation,
any software.
"Determination Date" means the first date on which all of the conditions
set forth in Sections 8.1, 8.2 and 8.3 have been fulfilled or waived in
accordance with the terms of this Agreement.
"DHT Balance Sheet" means DHT's audited balance sheet relating to its
fiscal year ended on December 31, 2000.
"DHT Disclosure Schedule" means the schedule delivered to Cerner by DHT
pursuant to Article IV hereof containing exceptions to the representations and
warranties of DHT set forth in such Article IV.
"DHT SEC Documents" means (i) all forms, reports, and documents required
to be filed by DHT with the SEC Under the Securities Act or the Exchange Act
filed since December 30, 2000, and (ii) all other reports, filings, registration
statements and other documents filed by DHT with the SEC under the Exchange Act
or the Securities Act filed since December 30, 2000.
"Environmental Laws" means any federal, state, local and foreign statutes,
laws (including, without limitation, common law), judicial decisions,
regulations, ordinances, rules, judgments, orders, codes, injunctions, permits
or governmental agreements relating to human health and safety, the environment
or to pollutants, contaminants, wastes, or chemicals, hazardous substances,
hazardous materials or hazardous wastes as any of those terms is regulated or
defined by Environmental Laws.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Exchange Agent" means UMB Bank, n.a., or any successor exchange agent
agreed upon by Cerner and DHT.
"Exchange Ratio" means, subject to adjustment pursuant to Section 2.1(g)
of this Agreement: (a) if the Average Cerner Stock Price as determined on the
Closing Date is less than $64.50 per share, then the Exchange Ratio shall be an
amount equal to 362,791 divided by the number of shares of Common Stock issued
and outstanding as of the close of business on the Determination Date, and (b)
if the Average Cerner Stock Price as determined on the Closing Date is equal to
or greater than $64.50, then the Exchange Ratio shall be an amount equal to (i)
an amount equal to 362,791 divided by the number of shares of Common Stock
issued and
outstanding as of the close of business on the Determination Date, times (ii)
a fraction, the numerator of which is $64.50, and the denominator of which is
the Average Cerner Stock Price as determined on the Closing Date, subject in
either case to adjustment pursuant to Section 2.1(g) of this Agreement.
"Governmental Entity" means any federal, state or local governmental
authority, any transgovernmental authority or any court, tribunal,
administrative or regulatory agency or commission or other governmental
authority, agency, instrumentality, or other public body, domestic or foreign.
"Knowledge" means, with respect to the matter in question, if any of (i)
in the case of Cerner or Merger Sub, Xxxx Xxxxx and Xxxxx Xxxx, and (ii) in the
case of DHT, the executive officers and directors of DHT.
"Law" means any federal, state, local, municipal, foreign, international,
multinational, or other judicial or administrative order, judgment, decree,
constitution, statute, rule, regulation, treaty, ordinance or principle of
common law.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
other than (i) Liens for current taxes and assessments not yet due and payable,
(ii) inchoate mechanic and materialmen's Liens for construction in progress,
(iii) workmen's, repairmen's, warehousemen's, and carrier's and other similar
Liens arising in the ordinary course of business, and (v) other Liens incurred
in the ordinary course of the party's business.
"Marks" mean all fictional business names, trading names, registered and
unregistered trademarks, service marks, and applications therefor as well as the
goodwill of the business associated therewith.
"Material Adverse Effect" or "Material Adverse Change" to a Person shall
mean an event, change, or occurrence which, individually or together with any
other event, change, or occurrence, has a material adverse effect on (i) the
financial condition, business, or results of operations of a Person and its
Subsidiaries, taken as a whole, or (ii) the ability of such Person to perform
its obligations under this Agreement or to consummate the Merger or the
transactions contemplated by this Agreement ; provided, however, that a Material
Adverse Effect or Material Adverse Change shall not include (a) changes in Laws
of general application, or interpretations thereof by Governmental Entities, (b)
changes arising out of U. S. or global economic or industrial conditions or U.S.
or global financial markets or conditions, (c) changes in GAAP or regulatory
accounting principles generally applicable to the business of such Person, (d)
actions or omissions of a party hereto (or its subsidiaries) taken with the
prior informed written consent of the other party hereto in accordance with this
Agreement and in contemplation of the transactions contemplated by this
Agreement, (e) circumstances generally affecting Florida based corporations,
with respect to DHT, and Delaware based corporations, with respect to Cerner and
the Surviving Corporation, and (f) the Merger and compliance with the provisions
of this Agreement on the operating performance of DHT or Cerner. Cerner Material
Adverse Effect" means a Material Adverse Effect in respect of Cerner, "DHT
Material Adverse Effect"
means a Material Adverse Effect in respect of DHT and "Surviving Corporation
Material Adverse Effect" means a Material Adverse Effect in respect of the
Surviving Corporation.
"Patents" mean all patents, patent applications, and inventions and
discoveries that may be patentable.
"Person" means an individual, a corporation, a limited liability company,
a partnership, an association, a trust or any other entity or organization,
including any Governmental Entity.
"Preferred Stock" means Series C Redeemable Convertible Preferred Stock,
par value $.01 per share, of DHT.
"Proxy Statement/Prospectus" means the Proxy Statement/Prospectus included
in the Registration Statement relating to the DHT Shareholder Meeting, together
with any amendments or supplements thereto.
"Registration Statement" means the Registration Statement on Form S-4 (or
other applicable or successor form) registering under the Securities Act the
Cerner Common Stock issuable in connection with the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means, with respect to any Person, all those corporations,
associations, or other entities of which such Person owns or controls 50% or
more of the outstanding equity or voting securities either directly or through
an unbroken chain of entities as to each of which 50% or more of the outstanding
equity or voting securities is owned directly or indirectly by its parent.
"Cerner Subsidiary" means a Subsidiary of Cerner.
"Tax" or "Taxes" means any federal, state, county, local or foreign taxes,
charges, levies, imposts, duties, other assessments or similar charges of any
kind whatsoever, including any interest, penalties and addition imposed thereon
or with respect thereto.
"Trade Secrets" mean trade secrets (such as customer information,
technical and non-technical data, a formula, pattern, compilation, program,
device, method, technique, drawing, process) and other confidential and
proprietary information concerning the products, processes, or services of DHT,
including but not limited to: computer programs; unpatented or unpatentable
inventions; ideas, discoveries or improvements; know-how, procedures,
methodologies, machines, lectures, manuals, reports, illustrations, plans,
designs, proposals, programming aids, flow charts, algorithms, schematics;
marketing, manufacturing, or organizational research and development results and
plans, business and strategic plans; sales forecasts and plans; personnel
information, including the identity of employees of DHT, their responsibilities,
competence, abilities, and compensation; pricing and financial information;
current and prospective customer lists and information on customers or their
employees; information concerning purchases of major equipment or property; and
information about potential mergers or acquisitions.
"368 Reorganization" means a merger that qualifies as a reorganization
within the meaning of Section 368(a) of the Code and the regulations promulgated
thereunder.
In addition to the definitions set forth above, each of the following
terms is defined in the Section set forth opposite such term:
TERMS SECTIONS
----- --------
Adverse Change in the DHT Recommendation 7.2(c)
Affiliate Agreement 7.7
Agreement Preamble
Articles of Merger 2.1(b)
Cerner Preamble
Cerner Financial Statement 3.10
Cerner Representation Letter 7.6(b)
Certificate of Merger 2.1(b)
Common Certificates 2.3(a)
Common Stock Recitals
Costs 7.10(b)
Delaware Law 2.1(a)
DHT Preamble
DHT Employee Plans 4.13(a)
DHT Financial Statements 4.7(a)
DHT Insiders 7.9(c)
DHT Intellectual Property 4.16(b)
DHT Representation Letter 7.6(b)
DHT Returns 4.12(a)
DHT Securities 4.5(b)
DHT Shareholder Approval Recitals
DHT Shareholders Meeting 4.19(b)
DHT Stock Options 4.5(a)
DHT Warrants 4.5(a)
Effective Time 2.1(b)
Environmental Laws 4.17(b)
ERISA 4.13(a)
ERISA Affiliate 4.13(a)
Exchange Fund 2.3(a)
Expenses 9.3(c)
Expiration Date 9.1(b)(i)
Florida Law 2.1(a)
GAAP 3.5(d)
Indemnified Parties 7.10(b)
Merger Recitals
Merger Consideration 2.1(e)(i)
Merger Sub Preamble
Multiemployer Plan 4.13(b)
Preferred Certificate 2.3(a)
TERMS SECTIONS
----- --------
Preferred Stock Merger Consideration 2.1(e)(ii)
Retirement Plan 4.13(b)
Section 16 Information 7.9(b)
Shares Recitals
Stock Rights 2.1(f)
Superior Proposal 6.2(b)
Surviving Corporation 2.1(a)
