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EXHIBIT 1.0
FORM OF TAKE DOWN AGREEMENT
This AGREEMENT, dated as of September , 1999, is by and among Per-Se
Technologies, Inc., a Delaware corporation formerly known as Medaphis
Corporation having its principal offices at 0000 Xx. Xxxxxxxxx Xxxxxxx Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), Foundation Health Systems, Inc., a
Delaware corporation having its principal offices at 00000 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("FOUNDATION") and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, a Delaware corporation having its principal offices at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("DLJ").
WITNESSETH:
WHEREAS, the Company has filed a registration statement (the "INITIAL
REGISTRATION STATEMENT"), including a prospectus (the "PROSPECTUS"), on Form S-3
(File No. 333- ) relating to up to 6,200,000 shares (the "ORIGINAL
SHARES") of Common Stock, $.01 par value per share (the "COMMON STOCK") of the
Company in satisfaction of the rights of Foundation under a Settlement Agreement
and Release (the "SETTLEMENT AGREEMENT") dated September 20, 1999 by and between
the Company and Foundation and a Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") dated September 20, 1999 between the Company
and Foundation;
WHEREAS, upon notice from Foundation, the Company will file a registration
statement (the "SUBSEQUENT REGISTRATION STATEMENT" and, together with the
Initial Registration Statement, the "REGISTRATION STATEMENT") relating to the
additional shares, if any, (the "ADDITIONAL SHARES" and, together with the
Original Shares, the "SHARES") to be issued to Foundation pursuant to the
Settlement Agreement (all references to the Registration Statement or the
Prospectus shall include documents incorporated therein by reference);
WHEREAS, DLJ may, from time to time, offer and sell such Shares on behalf
of Foundation; and
WHEREAS, DLJ may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "SECURITIES ACT");
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. AGREEMENTS OF THE COMPANY
(a) To advise DLJ promptly and, if requested by DLJ, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, and (iv) of the happening of any event
during the period referred to in Section 1(d) below which makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to DLJ 2 signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to DLJ such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as DLJ may reasonably request.
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(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to DLJ and Foundation, and to file the Prospectus in such form with
the Commission within the applicable period specified in Rule 424(b) under the
Act; during the period specified in Section 1(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which DLJ and Foundation shall not previously
have been advised or to which DLJ or Foundation shall reasonably object after
being so advised; and, during such period, to prepare and file with the
Commission, promptly upon DLJ's and Foundation's reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for DLJ and Foundation a prospectus is
required by law to be delivered in connection with sales by DLJ or a dealer, to
furnish in New York City to DLJ and any dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus and any documents
incorporated therein by reference) as DLJ or such dealer may reasonably request.
(e) If during the period specified in Section 1(d) above, any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for DLJ or Foundation, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for DLJ or Foundation, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to prepare
and file with the Securities and Exchange Commission (the "Commission") an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with applicable law, and to furnish to DLJ and to any dealer as many
copies thereof as DLJ or such dealer may reasonably request.
(f) To make available to DLJ and to Foundation all financial and other
information concerning its business and operations which DLJ or Foundation
reasonably request and will provide access to the Company's officers, directors,
employees, independent accountants and legal counsel.
(g) Prior to any offer or sale of the Shares, and each time the Company
prepares or files financial statements, the Company shall provide DLJ and
Foundation with:
(i) A certificate signed by the Company's Chief Executive Officer or
Chief Financial Officer confirming that the representation and warranties
of the Company in this Agreement are true and correct on and as of the date
of such certificate with the same force and effect as if made on and as of
such date, and that the Company has complied with all of the agreements
herein contained and required to be complied with or satisfied by the
Company on or prior to such date.
(ii) A letter, in form and substance satisfactory to DLJ and
Foundation, from PricewaterhouseCoopers LLC, independent public
accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(iii) An opinion (satisfactory to DLJ, Foundation and their respective
counsel) to the effect that the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for the financial
statements and other financial data included therein as to which no opinion
need be expressed) comply as to form with the Act, (A) such counsel has no
reason to believe that at the time the financial statements were prepared,
the Registration Statement and the Prospectus included therein (except for
the financial statements and other financial data as to which such counsel
need not express any belief) contain any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
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(C) such counsel has no reason to believe that the Prospectus, as amended
or supplemented, if applicable (except for the financial statements and
other financial data, as aforesaid) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(h) Once the obligations of the Company are satisfied under the Settlement
Agreement and the Registration Rights Agreements, the Company shall instruct DLJ
in writing to stop offering and selling the Shares. DLJ may continue to offer
and sell the Shares until it receives such instructions.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(a) (i) Each document, if any, filed, or to be filed pursuant to the
Securities Exchange Act of 1934 as amended (the "Exchange Act") and incorporated
by reference in the Prospectus complied or will comply when so filed in all
material respects with the Act; (ii) the Registration Statement when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
and (iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to DLJ or Foundation furnished to the Company in
writing by DLJ or Foundation expressly for use therein.
(b) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the supporting
schedules, if any, included in the Registration Statement present fairly in
accordance with generally accepted accounting principles the information
required to be stated therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
3. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless DLJ and its
affiliates, Foundation and its affiliates and the respective directors,
officers, agents and employees and each person, if any, who controls DLJ or
Foundation within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively, "DLJ PARTIES" or the "FOUNDATION
PARTIES"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereof), or the Prospectus (as amended or supplemented), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein not misleading (a
"CLAIM"), except insofar as any Claim is based upon information relating to DLJ
or Foundation, as the case may be, furnished to the Company in writing by DLJ or
Foundation, as the case may be, expressly for use in the Registration Statement
or Prospectus. The Company shall not indemnify DLJ for any liability caused by
DLJ's failure to deliver a prospectus in connection with its sale of the Shares.
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(b) Foundation agrees to indemnify and hold harmless the DLJ Parties and
the Company and its affiliates, and the respective directors, officers, agents
and employees and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (collectively, "COMPANY PARTIES"), from and against any and all Claims, but
only insofar as such Claim is based upon information relating to Foundation
furnished to the Company or DLJ in writing by Foundation expressly for use in
the Registration Statement or Prospectus. Foundation shall not indemnify DLJ for
any liability caused by DLJ's failure to deliver a prospectus in connection with
its sale of the Shares.
(c) DLJ agrees to indemnify and hold harmless the Company Parties and the
Foundation Parties from and against any and all Claims, but only insofar as such
Claim is based upon information relating to DLJ furnished to the Company in
writing by DLJ expressly for use in the Registration Statement or Prospectus.
(d) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to this Agreement (the "INDEMNIFIED
PARTY"), the indemnified party shall promptly notify the person against whom
such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all fees and expenses of such counsel, as incurred.
(e) Any indemnified party shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the indemnified party unless
(i) the employment of such counsel shall have been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party shall have failed
to assume the defense of such action or employ counsel reasonably satisfactory
to the indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by DLJ
in the case of parties indemnified pursuant to Sections 3(a) and 3(b) and the
Company in the case of parties indemnified pursuant to Section 3(c).
(f) The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all Claims by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement or an admission of
fault; culpability or a failure to act, by or on behalf of the indemnified
party.
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4. CONTRIBUTION
(a) To the extent the indemnification provided for in this Agreement is
unavailable to an indemnified party or insufficient in respect of any Claim,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Claim (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the one hand, and the
indemnified party, on the other hand, from the sale or (ii) if the allocation
provided by clause 4(a) (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 4(a) (i) above but also the relative fault of the indemnifying
party, on the one hand, and indemnified party, on the other hand in connection
with the Claim, as well as any other relevant equitable considerations. The
relative benefits received by either the Company on the one hand, and DLJ, on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the sale of Shares (after deducting commissions, but before
deducting expenses) received by Foundation and the total commissions received by
DLJ bear to the total price of the Shares sold. The parties acknowledge that the
sale of the Shares constitutes payment of the settlement to Foundation, and
Foundation shall be deemed not to be receiving any benefit therefrom. The
relative fault of the Company, Foundation and DLJ shall be determined by
reference to, among other things, whether the Claim relates to information
supplied by the Company, Foundation or DLJ, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent the
misstatement or omission or alleged misstatement or omission causing such Claim.
(b) The Company, Foundation and DLJ agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Claim
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
Claim.
(c) Notwithstanding the provisions of this Xxxxxxx 0, XXX shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares sold by it exceeds the amount of any damages which DLJ
has otherwise been required to pay by reason of such Claim.
(d) No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution provisions contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any DLJ Parties, any Company Parties or any Foundation Parties and (iii) the
sale of any Shares.
5. MISCELLANEOUS
(a) The remedies provided for in this Agreement are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together constitute a single
instrument, with the same legal effect as if all signatures appeared on the same
instrument.
(c) This Agreement, its enforcement, and any disputes among the parties
hereto shall be governed by the law of the State of New York, excluding its
conflict of laws rules, and its provisions shall be binding upon the parties
hereto and their successors and assigns.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above mentioned.
PER-SE TECHNOLOGIES, INC.
By:
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Name:
Title:
FOUNDATION HEALTH SYSTEMS, INC.
By:
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Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
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Name:
Title:
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