AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is
dated as of December 29, 2008 by and among HEALTH SYSTEMS SOLUTIONS, INC., a Nevada corporation
(“Parent”), HSS ACQUISITION CORP., a Delaware corporation and a direct, wholly-owned
subsidiary of Parent (“Merger Sub”), and EMAGEON INC., a Delaware corporation (the
“Company”). All capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the Merger Agreement (as defined below)
RECITALS:
WHEREAS, Parent, Merger Sub and the Company are party to that certain Agreement and Plan of
Merger dated as of October 13, 2008 (the “Merger Agreement”);
WHEREAS, Parent and Merger Sub were not able to consummate the Closing contemplated by the
Merger Agreement on December 23, 2008;
WHEREAS, in exchange for the agreements and covenants of Parent and Merger Sub herein, the
Company is willing to extend the time for the Closing under the Merger Agreement as provided in
this Amendment in order to allow Parent and Merger Sub to have additional time to arrange and
obtain the Financing from Stanford International Bank Ltd. (“SIBL”) pursuant to the
Purchase Agreement;
WHEREAS, in consideration of such extension, Parent will cause an additional $4,000,000 to be
deposited under the Deposit Escrow Agreement;
WHEREAS, concurrently with the execution of this Amendment, and as a condition and inducement
to the Company’s willingness to enter into this Amendment, SIBL is providing for the funding of the
increased deposit amount and consenting to this Amendment and the related amendment to the Deposit
Agreement and Parent has agreed to enter into an amendment to the Deposit Escrow Agreement with the
Company to provide for the additional $4,000,000 deposit amount on the date hereof and for the
immediate payment of the aggregate $9,000,000 deposit amount to the Company if the Closing does not
occur by the close of business on February 11, 2009 other than as a result of (i) termination of
the Merger Agreement by either Parent or the Company pursuant to Section 7.2(c) thereof or (ii)
termination of the Merger Agreement by Parent pursuant to Section 7.3(a) thereof;
WHEREAS, accordingly, the parties desire to amend the Merger Agreement in the manner more
particularly described below; and
WHEREAS, notwithstanding the parties’ willingness to enter into this Amendment, each party
hereto hereby expressly retains any rights and remedies it has
pursuant to the Merger Agreement, and the failure of any party to assert any of its rights or
remedies under the Merger Agreement or otherwise, whether before or after the date of this
Amendment, will not constitute a waiver of such rights.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the parties have agreed
to amend the Merger Agreement as follows:
Section 1. Amendments to Merger Agreement. The Merger Agreement is hereby amended as
follows:
(a) The definition of “Deposit Escrow Agreement” in Section 1.1(a) of the
Merger Agreement is hereby amended by deleting such definition in its entirety and
replacing it with the following:
“Deposit Escrow Agreement” means that certain deposit escrow agreement
by and among Parent, the Company and The Bank of New York Mellon, a New York
Banking Corporation, as escrow agent, dated as of October 21, 2008, as amended by
Amendment No. 1 thereto to be entered into as soon as reasonably practicable
following the date hereof, providing for an increase in the amount deposited
thereunder from $5,000,000 to $9,000,000 and the deposit upon the execution thereof
by Parent (or an Affiliate or Representative thereof) of the additional $4,000,000
to the escrow account maintained pursuant to such agreement, subject to the terms
and conditions set forth therein.”
(b) Section 2.1(b) of the Merger Agreement is hereby amended by deleting such Section
in its entirety and replacing it with the following:
“(b) Unless otherwise mutually agreed in writing by the Company and Parent,
the closing of the Merger (the “Closing”) will take place at the offices of
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, Park Avenue Tower, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., local time, on a date designated by
Parent, but in no event later than February 11, 2009, or another date mutually
agreed to in writing by Parent and the Company. Subject to the provisions of this
Agreement, at the Closing, the Company and Parent will cause a certificate of
merger (the “Certificate of Merger”) to be executed, acknowledged and filed
with the Secretary of State of the State of Delaware in accordance with Section 251
of the DGCL. The Merger will become effective at such time as the Certificate of
Merger has been duly filed with the Secretary of State of the State of Delaware or
at such later date or time as may be agreed by Parent and the Company in writing
and specified in the Certificate of Merger in accordance with the DGCL (the date on
which the Closing actually occurs being hereinafter referred to as the “Closing
Date,” and the date and time
at which the Merger becomes effective being hereinafter referred to as the
“Effective Time”).”
(c) Section 5.3 of the Merger Agreement shall be applicable as if the Requisite
Stockholder Vote has not been obtained.
(d) Each of Parent and Merger Sub hereby irrevocably and unconditionally waives the
conditions of Sections 6.2(a), (c) and (d) of the Merger Agreement and the conditions of
Section 6.2(b) of the Merger Agreement as to the performance by the Company of its
obligations under the Merger Agreement and the compliance by the Company with its covenants
under the Merger Agreement other than the Company’s obligations and covenants under Section
5.1 of the Merger Agreement. Parent and Merger Sub acknowledge that neither is aware of
any violation of the covenants in Section 5.1 by Emageon as of the date hereof.
Section 2. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to any applicable
principles of conflict of laws that would cause the Laws of another State to otherwise govern this
Amendment .
Section 3. No Other Amendments. Except as set forth herein, the terms and provisions
of the Merger Agreement shall remain in full force and effect. On or after the date of this
Amendment, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein” or words of like import referring to the Merger Agreement shall mean and be a reference to
the Merger Agreement as amended by this Amendment, and this Amendment shall be deemed to be a part
of the Merger Agreement.
Section 4. Counterparts. This Amendment may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first written above.
| PARENT: | ||||||
| HEALTH SYSTEMS SOLUTIONS, INC. | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Chief Executive Officer | |||||
| MERGER SUB: | ||||||
| HSS ACQUISITION CORP. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Secretary | |||||
| COMPANY: | ||||||
| EMAGEON INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Chief Financial Officer | |||||
[Signature
Page to Amendment No. 1 to Agreement and Plan of Merger]
