Exhibit 10.1
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of September 5, 2001 (the "Agreement"), by
and among Cerner Corporation, a Delaware corporation (including any assigns
permitted under Section 11 hereof, "Cerner"), and Dynamic Healthcare
Technologies, Inc., a Florida corporation ("DHT").
RECITALS:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement and the grant of the Option (as defined in Section 1(a)), DHT, Cerner,
and Cerner Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary
of Cerner ("Merger Sub"), are entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), which Merger Agreement
will be entered into contemporaneously with this Agreement; and
WHEREAS, as an inducement and condition to Cerner's willingness to pursue
the transactions contemplated by the Merger Agreement, and in consideration
thereof, the board of directors of DHT has approved the grant to Cerner of the
Option (as hereinafter defined) pursuant to this Agreement and the acquisition
of Common Shares (as defined below) by Cerner pursuant to this Agreement;
provided, that such grant was expressly conditioned upon, and made to have no
effect until after, execution and delivery by DHT, Cerner and Merger Sub of the
Merger Agreement (capitalized terms used herein but not defined herein shall
have the meanings ascribed to such terms in the Merger Agreement).
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
Section 1. The Option.
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(a) DHT hereby grants to Cerner an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, up to
985,746 authorized and unissued fully paid and nonassessable shares
("Option Shares") of common shares, par value $0.01 per share, of DHT
("Common Shares") at a price per share in cash equal to $3.00 (subject to
adjustment in accordance with this Agreement, the "Option Price");
provided, however, that in no event shall the number of Option Shares
exceed 15% of the shares of Common Shares issued and outstanding at the
time of exercise (without giving effect to the Option Shares issued or
issuable under the Option) (the "Maximum Applicable Percentage"). The
number of Option Shares purchasable upon exercise of the Option and the
Option Price are subject to adjustment as set forth herein.
(b) In the event that any additional shares of Common Shares are
issued or otherwise become outstanding after the date of this Agreement
(other than pursuant to this Agreement), the aggregate number of Option
Shares purchasable upon exercise of the Option shall automatically be
increased (without any further action on the part of
DHT or Cerner being necessary) so that, taking into consideration any such
issuance, such aggregate number equals the Maximum Applicable Percentage.
Nothing contained in this Section 1(b) or elsewhere in this Agreement shall
be deemed to authorize or require DHT, Cerner or Merger Sub to breach any
provision of the Merger Agreement.
Section 2. Exercise; Closing.
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(a) Conditions to Exercise; Termination. Subject to compliance
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with applicable laws and regulations, Cerner may exercise the Option, in
whole but not in part (except as provided in Section 14), by giving a
written notice thereof as provided in Section 2(d) within one year
following the occurrence of a Triggering Event (as defined in Section 2(b))
unless prior to the giving of such notice the Effective Time (as defined in
the Merger Agreement) shall have occurred. The Option shall terminate upon
either (i) the occurrence of the Effective Time or (ii) the close of
business on the earlier of (x) the date one year after the date on which a
Triggering Event occurs and (y) the date on which it is no longer possible
for a Triggering Event to occur, provided that no Triggering Event shall
have occurred prior to or upon such date.
(b) Triggering Event. A "Triggering Event" shall have occurred if
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the Merger Agreement is terminated and Cerner then or thereafter becomes
entitled to receive the termination fee pursuant to Section 9.3(a) of the
Merger Agreement.
(c) Notice of Triggering Event by DHT. DHT shall notify Cerner
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promptly in writing of the occurrence of any Triggering Event and the
number of shares of Common Shares issued and outstanding as of the date of
such notice, it being understood that the giving of such notice by DHT
shall not be a condition to the right of Cerner to exercise the Option.
(d) Notice of Exercise by Cerner. In the event that Cerner shall
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be entitled to and wishes to exercise the Option, it shall send to DHT a
written notice (an "Exercise Notice" and the date of which is referred to
herein as the "Notice Date") specifying (i) the total number of Option
Shares it will purchase pursuant to such exercise and the amount payable to
DHT on the exercise of the Option in respect of the Option Shares and (ii)
a place and date (the "Closing Date") not earlier than three Business Days
nor later than 60 Business Days from the Notice Date for the closing of
such purchase (the "Closing"); provided, that if a filing is required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or prior notification to or application for approval of any
other regulatory authority is required in connection with such purchase,
Cerner and DHT, as required, promptly after the giving of the Exercise
Notice shall file any and all required notices, applications or other
documents necessary for approval and shall expeditiously process the same
and in such event the period of time referred to in clause (ii) shall
commence on the date on which Cerner furnishes to DHT a supplemental
written notice setting forth the Closing Date, which notice shall be
furnished as promptly as practicable after all required notification
periods shall have expired or been terminated
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and all required approvals shall have been obtained and all requisite
waiting periods shall have passed. Each of Cerner and DHT agrees to use its
commercially reasonable efforts to cooperate with and provide information
to DHT or Cerner, as the case may be, with respect to any required filing,
notice or application for approval to such regulatory authority.
(e) Payment of Purchase Price. At the Closing, Cerner shall pay to
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DHT the aggregate Option Price for the Option Shares in immediately
available funds by a wire transfer to a bank account designated by DHT;
provided, that failure or refusal of DHT to designate such a bank account
shall not preclude Cerner from exercising the Option.
(f) Delivery of Common Shares. At the Closing, simultaneously with
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the delivery of the purchase price in immediately available funds as
provided in Section 2(e) of this Agreement by Cerner, DHT shall deliver to
Cerner or such other Person as Cerner may nominate in writing (the
"Holder"), a certificate or certificates representing the number of Option
Shares purchased by Cerner. If at the time of issuance of the Option
Shares hereunder, DHT shall have issued any rights or other securities
which are attached to or otherwise associated with the Common Shares, then
each Option Share shall also represent such rights or other securities with
terms substantially the same as, and at least as favorable to Cerner as,
are provided under any shareholder rights agreement or similar agreement of
DHT then in effect. In addition, at the Closing, the Holder shall provide
to DHT a letter agreement agreeing that the Holder will not sell, transfer
or otherwise dispose of the Option Shares in violation of applicable law or
this Agreement.
(g) Resale Restriction. The Holder will not sell or transfer any
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Option Shares or other securities acquired by the Holder upon exercise of
the Option except pursuant to an effective registration statement under the
Securities Act, or in a transaction exempt from registration under the
Securities Act. Each certificate for Common Shares delivered at the
Closing may be endorsed with a restrictive legend that shall read
substantially as follows: "The transfer of the shares represented by this
certificate is subject to certain provisions of an agreement between the
registered holder hereof and Dynamic Healthcare Technologies, Inc. ("DHT")
and to resale restrictions arising under the Securities Act of 1933, as
amended. A copy of such agreement is on filed at the principal office of
DHT and will be provided to the holder thereof without charge upon receipt
by DHT of a written request therefor." It is understood and agreed that
the above legend shall be removed by delivery of substitute certificate(s)
without such reference if the Holder shall have delivered to DHT a copy of
a letter from the staff of the Securities and Exchange Commission, or a
written opinion of counsel, in form and substance reasonably satisfactory
to DHT, to the effect that such legend is not required for purposes of the
Securities Act. In addition, such certificate or certificates shall bear
any other legend as may be required by applicable law.
(h) Ownership of Record; Tender of Purchase Price; Expenses. Upon
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the tender of the applicable purchase price in immediately available funds
(following the giving of the Exercise Notice) at the Closing, the Holder
shall be deemed to be the holder
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of record of the shares of Common Shares issuable upon such exercise,
notwithstanding that the stock transfer books of DHT may then be closed or
that a certificate or certificates representing such Common Shares may not
have been delivered to Cerner. DHT shall pay all expenses, and any and all
federal, state and local taxes and other charges that may be payable in
connection with the preparation, issuance and delivery of stock
certificates under this Section 2 in the name of the Holder or its nominee,
assignee, transferee or designee.
Section 3. Covenants of DHT. In addition to its other agreements and
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covenants herein, DHT agrees:
(a) Shares Reserved for Issuance. To maintain, free from
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preemptive rights, sufficient authorized but unissued or treasury shares of
Common Shares so that the Option may be fully exercised without additional
authorization of Common Shares after giving effect to all other options,
warrants, convertible securities and other rights of third parties to
purchase shares of Common Shares from DHT, and to issue the appropriate
number of shares of Common Shares pursuant to the terms of this Agreement;
(b) No Avoidance. Not to avoid or seek to avoid (whether by
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charter amendment or through reorganization, consolidation, merger,
issuance of rights, dissolution or sale of assets, or by any other
voluntary act) the observance or performance of any of the covenants,
agreements or conditions to be observed or performed hereunder by DHT; and
(c) Further Assurances. Promptly after the date hereof to take all
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actions as may from time to time be required (including (i) complying with
all applicable premerger notification, reporting and waiting period
requirements under the HSR Act and (ii) in the event that prior filing
with, notification to or approval of any other regulatory authority is
necessary before the Option may be exercised, cooperating fully with Cerner
in preparing and processing the required filings, notices or applications)
in order to permit Cerner to exercise the Option, to purchase Option Shares
pursuant to such exercise and otherwise to exercise Cerner's rights under
this Agreement and to take all action necessary to protect the rights of
Cerner against dilution as set forth in Section 7 of this Agreement.
Section 4. Representations and Warranties of DHT. DHT hereby represents
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and warrants to Cerner as follows:
(a) Shares Reserved for Issuance; Capital Shares. The Option
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Shares issuable in accordance with the terms of this Agreement have been
duly reserved for issuance by DHT and upon any issuance of such shares in
accordance with the terms hereof, such Option Shares will be duly
authorized, validly issued, fully paid and nonassessable, and will be
delivered free and clear of any lien, pledge, security interest, claim or
other encumbrance (other than those created by this Agreement or by Cerner)
and not subject to any statutory preemptive rights or agreement with any
third party.
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(b) Corporate Authority. The execution and delivery by DHT of
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this Agreement and the performance and the consummation by DHT of the
transactions contemplated hereby are within DHT's corporate powers and have
been duly authorized by all necessary corporate action. This Agreement has
been duly executed and delivered by DHT and, assuming that this Agreement
constitutes the valid and binding obligation of Cerner, 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).
(d) State Takeover Statutes. DHT has take, or will take prior to
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closing, 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 Section will not
apply to acquisition of Option Shares by Cerner pursuant to this Agreement
or any of the transactions contemplated hereby.
Section 5. Representations and Warranties of Cerner. Cerner hereby
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represents and warrants to DHT that Cerner has all requisite corporate power and
authority and has taken all corporate action necessary in order to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby; the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action on the part of
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 pubic policy underlying such laws).
Section 6. Replacement. Upon (i) receipt by DHT of evidence reasonably
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satisfactory to it of the loss, theft, destruction, or mutilation of this
Agreement, (ii) receipt by DHT of reasonably satisfactory indemnification in the
case of loss, theft or destruction and (iii) surrender and cancellation of this
Agreement in the case of mutilation, DHT will execute and deliver a new
Agreement of like tenor and date. Any such new Agreement executed and delivered
shall constitute an additional contractual obligation on the part of DHT,
whether or not the Agreement so lost, stolen, destroyed or mutilated shall at
any time be enforceable by any Person other than the holder of the new
Agreement.
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Section 7. Adjustments. In addition to the adjustment to the total number
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of Option Shares pursuant to Section 1(b) of this Agreement, the total number of
Option Shares purchasable upon the exercise of the Option hereof and the Option
Price shall be subject to adjustment from time to time as follows:
(a) In the event of any change in the outstanding shares of Common
Shares by reason of stock dividends, splits, combinations, subdivisions or
reclassifications, mergers, recapitalizations, extraordinary dividends or
distributions, exchanges of shares or the like, the type and number of
Option Shares purchasable upon exercise of the Option shall be
appropriately adjusted, and proper provision shall be made in the
agreements governing any such transaction, so that (i) the Holder shall
receive upon exercise of the Option the number and class of shares, other
securities, property or cash that Cerner would have received in respect of
the Option Shares purchasable upon exercise of the Option if the Option had
been exercised and such Option Shares had been issued to the Holder
immediately prior to such event or the record date therefor, as applicable;
and (ii) in the event any additional shares of Common Shares are to be
issued or otherwise become outstanding as a result of any such change
(other than pursuant to an exercise of the Option), the number of Option
Shares purchasable upon exercise of the Option shall be increased so that,
after such issuance the number of Option Shares so purchasable equals the
Maximum Applicable Percentage of the number of shares of Common Shares
issued and outstanding immediately after the consummation of such change;
and
(b) Whenever the number of Option Shares purchasable upon exercise
hereof is adjusted as provided in this Section 7, the Option Price shall be
adjusted by multiplying the Option Price by a fraction, the numerator of
which is equal to the number of Option Shares purchasable prior to the
adjustment and the denominator of which is equal to the number of Option
Shares purchasable after the adjustment.
Section 8. Registration.
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(a) Upon the occurrence of a Triggering Event, DHT shall, at the
request of Cerner included in the Exercise Notice furnished within the time
period required under Section 2(d) of this Agreement, as promptly as
practicable prepare, file and keep current a shelf registration statement
under the Securities Act covering all Option Shares issued and issuable
pursuant to the Option and shall use its commercially reasonable efforts to
cause such registration statement to become effective and remain current in
order to permit the sale or other disposition of any Option Shares issued
upon exercise of the Option in accordance with any plan of disposition
requested by Cerner; provided, however, that DHT may postpone the filing of
a registration statement relating to a registration request by Cerner under
this Section 8 for a period of time (not in excess of 30 days) if in its
judgment such filing would require the disclosure of material information
that DHT has a bona fide business purpose for preserving as confidential.
DHT will use its commercially reasonable efforts to cause such registration
statement first to become effective and then to remain effective for 180
days from the day such registration statement first becomes effective or
until such earlier date as all shares
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registered shall have been sold by the Holder. In connection with any such
registration, DHT and Cerner shall provide each other with representations,
warranties, indemnities, contribution and other agreements customarily
given in connection with such registrations. If requested by Cerner in
connection with such registration, DHT shall become a party to any
underwriting agreement relating to the sale of such shares, but only to the
extent of obligating DHT in respect of representations, warranties,
indemnities, contribution and other agreements customarily made by DHTs in
such underwriting agreements. In any such registration, DHT and Cerner
shall agree to indemnify each other on customary terms with respect to any
information provided by such party in connection with such registration.
(b) In the event that Cerner so requests, the closing of the sale
or other disposition of the Option Shares or other securities pursuant to a
registration statement filed pursuant to Section 8(a) shall occur
substantially simultaneously with the exercise of the Option.
Section 9. Repurchase of Option and/or Shares.
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(a) Repurchase; Repurchase Price. Upon the occurrence of a
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Repurchase Event (as hereinafter defined), at the request of Cerner, given
in writing within one year following the occurrence of a Triggering Event
(or such later period as is provided in Section 2(d) with respect to any
required filing, notice or application for approval or pursuant to a
request by Cerner in accordance with Section 10), (i) DHT shall repurchase
the Option from Cerner, in whole but not in part (except as provided in
Section 9(c)), at a price (the "Option Repurchase Price") equal to the
number of Option Shares then purchasable upon exercise of the Option
multiplied by the amount by which the Market Price (as defined below)
exceeds the applicable Option Price (giving effect to the Maximum Option
Price) or (ii) DHT shall repurchase all Option Shares then owned by Cerner
at a price (the "Option Share Repurchase Price") equal to the number of
such Option Shares multiplied by the Market Price. The term "Repurchase
Event" shall occur only if a party other than Cerner actually acquires
majority control of DHT, or has the right to acquire control of DHT, or DHT
has entered into an agreement of the type referenced in Section 9(d) of
this Agreement with a third party. The term "Market Price" shall mean, for
any share of Common Shares, the average of the closing sales price per
share of Common Shares as reported by Nasdaq on each of the 15 consecutive
trading days immediately preceding the delivery of the Repurchase Notice,
or, if the Common Shares is not quoted on the Nasdaq on the principal
United States securities exchange registered under the Exchange Act on
which the Common Shares is listed, or if the Common Shares is not listed on
any such exchange, the average of the closing bid quotations with respect
to a share of Common Shares on each of the 15 consecutive trading days
immediately preceding the date of the Repurchase Notice on any quotation
system then in use, or if no such quotations are available, the Market
Price on the date of the Repurchase Notice of a share of Common Shares, as
determined by the Board of Directors of DHT in good faith.
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(b) Method of Repurchase. Cerner may exercise its right to require
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DHT to repurchase the Option, in whole but not in part, or all Option
Shares then owned by Cerner pursuant to this Section 9 by surrendering for
such purpose to DHT, at its principal office, this Agreement or
certificates for such Option Shares, as applicable, accompanied by a
written notice or notices stating that Cerner elects to require DHT to
repurchase the Option or such Option Shares in accordance with the
provisions of this Section 9 (such notice, a "Repurchase Notice"). As
promptly as practicable, and in any event within 15 Business Days after the
surrender of this Agreement or a certificate or certificates representing
Option Shares and the receipt of the Repurchase Notice relating thereto,
DHT shall deliver or cause to be delivered to Cerner the applicable Option
Repurchase Price or the Option Share Repurchase Price or the portion
thereof that DHT is not then prohibited under applicable law and regulation
from so delivering.
(c) Effect of Statutory or Regulatory Restraints on Repurchase. To
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the extent that, upon or following the giving of a Repurchase Notice, DHT
is prohibited under applicable law or regulation from repurchasing the
Option or any Option Shares subject to such Repurchase Notice (and DHT
hereby undertakes to use commercially reasonable efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish such repurchase), DHT shall
immediately so notify Cerner in writing and thereafter deliver or cause to
be delivered, from time to time, to Cerner the portion of the Option
Repurchase Price or the Option Share Repurchase Price that DHT is no longer
prohibited from delivering, within 2 Business Days after the date on which
it is no longer so prohibited; provided, however, that upon notification by
DHT in writing of such prohibition, Cerner may, within 10 days of receipt
of such notification from DHT, revoke in writing its Repurchase Notice,
whether in whole or to the extent of the prohibition, whereupon, in the
latter case, DHT shall promptly (i) deliver to Cerner that portion of the
Option Repurchase Price or the Option Share Repurchase Price that DHT is
not prohibited from delivering; and (ii) deliver to Cerner, as appropriate,
(A) with respect to the Option, a new stock option agreement evidencing the
right of Cerner to purchase that number of Option Shares for which the
surrendered stock option agreement was exercisable at the time of delivery
of the Repurchase Notice less the number of shares as to which the Option
Repurchase Price has theretofore been delivered to Cerner, or (B) with
respect to Option Shares, a certificate for the Option Shares as to which
the Option Share Repurchase Price has not theretofore been delivered to
Cerner. Notwithstanding anything to the contrary in this Agreement,
including, without limitation, the time limitations on the exercise of the
Option, Cerner may give notice of exercise of the Option for one year after
a notice of revocation has been issued pursuant to this Section 9(c) and
thereafter exercise the Option in accordance with the applicable provisions
of this Agreement.
(d) Acquisition Transactions. In addition to any other
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restrictions or covenants, DHT hereby agrees that, in the event that Cerner
delivers a Repurchase Notice, it shall not enter or agree to enter into an
agreement or series of agreements relating to a merger with or into or the
consolidation with any other Person, the sale of all or substantially all
of the assets of DHT or any similar transaction or disposition unless
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the other party or parties to such agreement or agreements agree to assume
in writing DHT's obligations under Section 9(a) and, notwithstanding any
notice of revocation delivered pursuant to the proviso to Section 9(c),
Cerner may require such other party or parties to perform DHT's obligations
under Section 9(a) unless such party or parties are prohibited by law or
regulation from such performance, in which case such party or parties shall
be subject to the obligations of DHT under Section 9(c).
Section 10. Extension of Exercise Periods. The periods for exercise of
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certain rights under Sections 2 and 9 shall be extended at the request of Cerner
to the extent necessary to avoid liability by Cerner under Section 16(b) of the
Exchange Act by reason of such exercise.
Section 11. Assignment. Neither party hereto may assign or delegate any
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of its rights or obligations under this Agreement or the Option to any other
Person without the express written consent of the other party, except that this
Agreement or the Option may be assigned to any direct or indirect wholly owned
Subsidiary of Cerner. Any attempted assignment or delegation in contravention of
the preceding sentence shall be null and void.
Section 12. Filings; Other Actions. Each of Cerner and DHT will use its
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best efforts to make all filings with, notices to and applications for approval
of, and to obtain consents of, all third parties and governmental authorities
necessary for the consummation of the transactions contemplated by this
Agreement. Subject to applicable law and the rules and regulations of Nasdaq or
any securities exchange registered under the Exchange Act on which the Common
Shares is listed (together with Nasdaq, the "Applicable Exchange"), DHT will
promptly file an application to have the Option Shares listed on the Applicable
Exchange, subject to notice of issuance, and will use its best reasonable
efforts to obtain approval of such application; provided, that if DHT is unable
to effect such listing on the Applicable Exchange by the Closing Date, DHT will
nevertheless be obligated to deliver the Option Shares upon the Closing Date.
Section 13. Specific Performance. The parties hereto acknowledge that
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damages would be an inadequate remedy for a breach of this Agreement by either
party hereto and that the obligations of the parties hereto shall be
specifically enforceable through injunctive or other equitable relief.
Section 14. Severability; Etc. The provisions of this Agreement shall be
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deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision unless the substitution of such provision would materially frustrate
the express intent and purposes of this Agreement, and (b) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction. If for
any reason a court or regulatory agency determines that Cerner is not permitted
to acquire pursuant to Section 2 the full number of
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Option Shares provided in Section 1(a) hereof (as adjusted pursuant to Sections
1(b) and 7 hereof), it is the express intention of DHT to allow Cerner to
acquire such lesser number of Option Shares as may be permissible, without any
amendment or modification hereof.
Section 15. Notices. All notices, requests, claims, demands and other
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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, if addressed to a party at the respective
addresses of the parties set forth in the Merger Agreement.
Section 16. Governing Law. This Agreement shall be construed in
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accordance with and governed by the internal laws of the State of Florida
without regard to any principles of Florida conflicts or choice of law.
Section 17. Expenses. Except as otherwise expressly provided herein or in
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the Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated by this Agreement shall be paid by
the party incurring such expense, except that DHT shall be responsible for all
fees and expenses (other than underwriting discounts or commissions) relating to
the registration of securities pursuant to Section 8 of this Agreement.
Section 18. Entire Agreement; etc. This Agreement, the Merger Agreement
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(together with DHT Disclosure Schedule, the Cerner Disclosure Schedule, and the
exhibits and schedules hereto) and the Confidentiality 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. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement is not intended to
confer upon any Person, other than the parties hereto, and their respective
successors and permitted assigns, any rights or remedies hereunder.
Section 19. Interpretation. The headings contained in this Agreement are
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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."
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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: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President and Chief
Financial Officer
DYNAMIC HEALTHCARE TECHNOLOGIES, INC.
By: /s/ T. Xxxxxxxxxxx Xxxxx
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T. Xxxxxxxxxxx Xxxxx, Chief Executive Officer
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