SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of January 2, 1999, between
SYNETIC HEALTHCARE COMMUNICATIONS, INC., a Delaware corporation (the "Company"),
SYNETIC, INC., a Delaware Corporation ("Synetic"), AVICENNA SYSTEMS CORPORATION,
a Massachusetts Corporation ("Avicenna") a wholly owned subsidiary of Synetic,
and CERNER CORPORATION, a Delaware corporation ("Cerner").
WHEREAS, the Company was formed to conduct the healthcare
communications business previously conducted by Synetic, and certain of its
subsidiaries, including Avicenna.
WHEREAS, subject to certain exclusions, Synetic and Avicenna
have contributed to the Company all of the assets and liabilities of the Company
Business and the Company has issued to Avicenna 1,000,000 shares of the common
stock, par value $.01 per share (the "Common Stock"), of the Company; and
WHEREAS, on the Closing Date, on the terms and conditions set
forth in this Agreement, Cerner desires to subscribe for and purchase from the
Company, and the Company desires to issue and sell to Cerner, an aggregate of
248,439 shares of Common Stock in exchange for Cerner entering into various
agreements, as more fully described herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" means this Subscription Agreement, dated as of
January 2, 1999 and all amendments made hereto in accordance with the provisions
hereof.
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"Ancillary Agreements" means the Stockholders' Agreement, the
Marketing Agreement, the Non-Competition Agreement, the License Agreement and
the Master Services and Outsourcing Agreement.
"Assets" means the "Assets" as defined in the Formation
Agreement.
"Avicenna" has the meaning specified in the recitals to this
Agreement.
"Business" has the meaning specified in the recitals to this
Agreement
"Cerner" has the meaning specified in the preamble to this
Agreement.
"Cerner Shares" means the 248,439 shares of Common Stock
issued to Cerner by the Company in accordance with this Agreement.
"Closing" has the meaning specified in Section 2.02.
"Closing Date" has the meaning specified in Section 2.02.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning specified in the recitals to
this Agreement.
"Company" has the meaning specified in the preamble to this
Agreement.
"Company Business" means the provision of "extra-enterprise"
prescription, laboratory and managed care transaction and messaging services
(the "Services") that connect physicians with Payers, pharmacies and
laboratories, which shall include, without limitation, connection to and
management of Services with all PBM systems; connection to and management of
Services with all Payer systems (including third party payers and direct payers
(e.g., employers)); connection to and management of Services with all physicians
and other provider systems; connection to and management of Services with
healthcare suppliers (e.g., pharmacies, laboratories); connection to and
management of Services with consumers; and connection to and management of
services with other data switches (e.g., clearing houses); and any mutually
agreed to extension or modifications of the foregoing.
"Formation Agreement" means a formation agreement
substantially in the form of Exhibit F hereto..
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
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"License Agreement" means a license agreement substantially in
the form of Exhibit A hereto.
"Lien" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens).
"Marketing Agreement" means a marketing agreement
substantially in the form of Exhibit B hereto.
"Master Services and Outsourcing Agreement" means a master
services and outsourcing agreement substantially in the form of Exhibit C
hereto.
"Non-Competition Agreement" means a non-competition agreement
substantially in the form of Exhibit D hereto.
"Payer" means any HMO, PBM, indemnity or other health care
insurer, self- funded health plan, union sponsored plan (including employers),
workers compensation entity or other source responsible for the payment of fees
and expenses for health care services.
"PBM" means a pharmacy benefits manager.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Stockholders Agreement" means a stockholders agreement
substantially in the form of Exhibit E hereto.
"Synetic" has the meaning specified in the recitals to this
Agreement.
"THINC" means The Health Information Network Connection LLC, a
New York limited liability company.
"THINC Warrants" means the warrants due to be issued to THINC
pursuant to the proposed agreement between THINC and the Company the ("THINC
Agreement"), entitling it to purchase 81,081 shares of Common Stock at an
exercise price determined in accordance with the THINC Agreement.
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ARTICLE II
PURCHASE AND SALE OF THE CERNER SHARES
SECTION 2.01. Commitment to Purchase the Cerner Shares. (a)
Upon the terms and subject to the conditions set forth in this Agreement, the
Company agrees to issue and sell to Cerner, and Cerner, upon the terms and
subject to the conditions set forth in this Agreement, agrees to purchase from
the Company, the Cerner Shares.
(b) In consideration for the issuance of the Cerner Shares to
Cerner and on the terms and subject to the conditions set forth in this
Agreement, Cerner shall, at the Closing, enter into the Ancillary Agreements.
SECTION 2.02. Closing. Upon the terms and subject to the
conditions set forth in this Agreement, the sale and purchase provided for in
Section 2.01 shall take place at a closing (the "Closing") to be held at the
offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M. New York time on the later of January 2, 1999 or the business day
following the satisfaction or waiver of all other conditions to the obligations
of the parties set forth in Article VI, or at such other place or at such other
time or on such other date as the parties may mutually agree upon in writing
(the day on which the Closing takes place being the "Closing Date").
SECTION 2.03. Closing Deliveries by the Company. (a) At the
Closing, the Company shall deliver to Cerner: (i) a certificate or certificates
evidencing the Cerner Shares to be purchased by Cerner pursuant to this
Agreement in definitive form and registered in such names and in such
denominations as Cerner shall request; (ii) an executed counterpart of each of
the Ancillary Agreements to which the Company is a party; (iii) a certificate
from the Company to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing, with
the same force and effect as if made as of the Closing Date, signed by a duly
authorized officer; and (iv) a true and complete copy, certified by the
Secretary of the Company of the resolutions duly and validly adopted by its
Board of Directors of evidencing their authorization of the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, together with a certified copy of the Charter and By-laws of the
Company.
(b) At the Closing, Avicenna shall deliver to Cerner: (i) an
executed counterpart of each of the Ancillary Agreements to which Avicenna is a
party; (ii) a certificate from Avicenna to the effect that the representations
and warranties of Avicenna contained in this Agreement are true and correct as
of the Closing, with the same force and effect as if made as of the Closing
Date, signed by a duly authorized officer; and (iii) a true and complete copy,
certified by the Secretary of Avicenna of the resolutions duly and validly
adopted by its Board of Directors of evidencing their authorization of the
execution and delivery of this Agreement and the
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consummation of the transactions contemplated hereby, together with a certified
copy of the Charter and By-laws of Avicenna.
(c) At the Closing, Synetic shall deliver to Cerner: (i) an
executed counterpart of each of the Ancillary Agreements to which Synetic is a
party; (ii) a certificate from Synetic to the effect that the representations
and warranties of the Company contained in this Agreement are true and correct
as of the Closing, with the same force and effect as if made as of the Closing
Date, signed by a duly authorized officer; and (iii) a true and complete copy,
certified by the Secretary of Synetic of the resolutions duly and validly
adopted by its Board of Directors of evidencing their authorization of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, together with a certified copy of the Charter
and By-laws of Synetic.
SECTION 2.04. Closing Deliveries by Cerner. At the Closing,
Cerner shall deliver to the Company (i) an executed counterpart of each of the
Ancillary Agreements to which it is a party and (ii) a certificate to the effect
that the representations and warranties of Cerner contained in this Agreement
are true and correct as of the Closing, with the same force and effect as if
made as of the Closing Date, signed by a duly authorized officer; and (iii) a
certified copy of the Charter and By-laws of Cerner.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY,
SYNETIC AND AVICENNA
The Company, Synetic and Avicenna jointly and severally
represent and warrant to Cerner as follows:
SECTION 3.01. Organization and Authority of the Company. Each
of the Company, Synetic and Avicenna is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, in the
case of the Company and Synetic, and the State of Massachusetts, in the case of
Avicenna, and has all necessary power and authority to enter into this Agreement
and the Ancillary Agreements, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The Company is duly licensed or qualified to do business and is in good standing
in each jurisdiction in which the properties owned or leased by it or the
operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
materially and adversely affect the transactions contemplated by this Agreement
and the Ancillary Agreements. The execution and delivery of this Agreement and
the Ancillary Agreements by the Company, Synetic and Avicenna, the performance
by the Company,
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Synetic and Avicenna of their respective obligations hereunder and thereunder
and the consummation by the Company, Synetic and Avicenna of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action on the part of the Company, Synetic and Avicenna. This Agreement has
been, and upon their execution the Ancillary Agreements will be, duly executed
and delivered by the Company, Synetic and Avicenna, to the extent each of such
parties is a party to the Ancillary Agreements, and (assuming due authorization,
execution and delivery by the other parties thereto) this Agreement constitutes,
and upon their execution the Ancillary Agreements will constitute, legal, valid
and binding obligations of the Company, Synetic and Avicenna enforceable against
the Company, Synetic and Avicenna in accordance with their respective terms to
the extent each of such parties is a party to the Ancillary Agreements.
SECTION 3.02. Capital Stock of Company. The Cerner Shares to
be purchased by Cerner pursuant to this Agreement have been duly authorized and,
when issued and delivered in accordance with the terms of this Agreement, will
have been validly issued and will be fully paid and nonassessable. The issuance
of the Cerner Shares is not subject to preemptive or similar rights and, except
as contemplated by the Stockholders' Agreement, holders of the Cerner Shares
will not be entitled to any preemptive or similar rights. As of the Closing,
after giving effect to the issuance of the Cerner Shares, the authorized capital
stock of the Company will consist of 10,000,000 shares of Common Stock, of which
1,248,439 shares of Common Stock will be issued and outstanding in total, of
which Avicenna will own 1,000,000. The Company will have outstanding no other
shares of capital stock and no securities convertible into or exchangeable for,
or warrants, options or other rights to acquire from the Company, or other
obligations of the Company to issue, directly or indirectly, any shares of
capital stock of the Company, other than the THINC Warrants and the right of
Cerner to additional Common Stock set out in Section 2.05 of the Stockholders
Agreement. Except as set forth above, no shares of capital stock of the Company
have been reserved for issuance for any reason and there are no plans or
arrangements in existence relating to the issuance of shares of capital stock of
the Company.
SECTION 3.03. No Conflict. Assuming that all consents,
approvals, authorizations and other actions described in Section 3.04 have been
obtained, the execution, delivery and performance of this Agreement and the
Ancillary Agreements by the Company, Synetic and Avicenna do not and will not
(a) violate, conflict with or result in the breach of any provision of each of
their Certificates of Incorporation or By-laws, (b) conflict with or violate (or
cause an event which could materially and adversely effect the transactions
contemplated by this Agreement and the Ancillary Agreements as a result of) any
law, governmental regulation or governmental order applicable to them or any of
their respective assets, properties or businesses or (c) conflict with, result
in any breach of, constitute a default (or event which with the giving of notice
or lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any Lien
on any of the assets or properties of any of
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them pursuant to, any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument or arrangement
to which the Company, Synetic and Avicenna is a party or by which any of such
respective assets or properties is bound or affected.
SECTION 3.04. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and each Ancillary
Agreement by the Company, Synetic and Avicenna, to the extent each of such
parties is a party to the Ancillary Agreements do not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to, any governmental authority, except the requirements of the HSR
Act.
SECTION 3.05. Pro Forma Balance Sheet. Attached hereto as
Schedule 3.05 is a pro forma balance sheet of the Company as of September 30,
1998, reflecting (i) all of the transactions described in the second "Whereas"
clause of this Agreement, (ii) the entering into of the agreement with THINC
referred to in Section 2.04 of the Stockholders Agreement, (iii) the THINC
Warrants and the transactions contemplated by this Agreement, and (iv) the
contribution of $10,000,000 in cash by Synetic and Avicenna to the capital of
the Company, all as though they had occurred on the date of such proforma
balance sheet. Such pro forma balance sheet has been prepared in accordance with
generally accepted accounting principles consistently applied except as set
forth in the notes to such pro forma balance sheet. Since September 30, 1998,
the Company Business has not incurred any liabilities other than in the ordinary
course of business consistent with past practice.
SECTION 3.06. Outstanding Equity Securities of Avicenna. As of
the date hereof and as of the date of Closing, there are not, and there will not
be, any outstanding shares of capital stock of Avicenna (or any successor by
merger or consolidation) or any commitments or obligations to issue any shares
of capital stock of Avicenna (or any successor by merger or consolidation) other
than those owned beneficially and of record by Synetic.
SECTION 3.07. Assets. The Assets:
(i) constitute substantially all the properties and assets forming a
part of, used, held, or intended to be useful in, and all such
properties, assets and rights as are necessary in the conduct of, the
Company Business, except, in each case, as would not reasonably be
expected to materially and adversely affect the Business;
(ii) represent all of the properties and amounts formerly held by
Synetic or Avicenna and useful in connection with the Company Business;
(iii) have been validly transferred and conveyed by Synetic and
Avicenna to the Company such that the Company has all rights in respect
of such properties and assets that were formerly held by Synetic and
Avicenna (except that certain software licenses may contain
restrictions on assignment); and
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(iv) all software and other intellectual property set forth on Schedule
3.07 is owned by the Company free and clear of all Liens, except as
noted on schedule 3.07.
Section 3.08. Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement or the Ancillary
Agreements based upon arrangements made by or on behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CERNER
Cerner represents and warrants to the Company as follows:
SECTION 4.01. Organization and Authority of Cerner. Cerner is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all necessary power and authority to enter
into this Agreement and the Ancillary Agreements, to carry out its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. Cerner is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
materially and adversely effect the transactions contemplated by this Agreement
and the Ancillary Agreements. The execution and delivery of this Agreement and
the Ancillary Agreements by Cerner, the performance by Cerner of its obligations
hereunder and thereunder and the consummation by Cerner of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action on the part of Cerner. This Agreement has been, and upon their execution
the Ancillary Agreements will be, duly executed and delivered by Cerner, and
(assuming due authorization, execution and delivery by the other parties
thereto) this Agreement constitutes, and upon their execution the Ancillary
Agreements will constitute, legal, valid and binding obligations of Cerner
enforceable against Cerner in accordance with their respective terms.
SECTION 4.02. No Conflict. Assuming that all consents,
approvals, authorizations and other actions described in Section 4.03 have been
obtained, the execution, delivery and performance of this Agreement and the
Ancillary Agreements by Cerner do not and will not (a) violate, conflict with or
result in the breach of any provision of the Charter or By-laws (or similar
organizational documents) of Cerner, (b) conflict with or violate (or cause an
event which could materially and adversely effect the transactions contemplated
by this Agreement and the Ancillary Agreements as a result of) any law,
governmental regulation or governmental order applicable to Cerner or any of its
assets, properties or businesses or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both,
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would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Lien on any of the assets or
properties of Cerner pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which Cerner is a party or by which any of such
assets or properties is bound or affected.
SECTION 4.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and each Ancillary
Agreement by Cerner do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to, any
governmental authority, except the requirements of the HSR Act.
SECTION 4.04. Private Placement. (i) Cerner understands that
(A) the offering and sale of the Cerner Shares hereunder are intended to be
exempt from registration under the Securities Act pursuant to Section 4(2) of
the Securities Act and (B) there is no existing public or other market for the
Cerner Shares and there can be no assurance that Cerner will be able to sell or
dispose of the Cerner Shares.
(ii) The Cerner Shares are being acquired for Cerner's own
account and without a view to the public distribution of the Cerner Shares or
any interest therein.
(iii) Cerner is an "accredited investor" as such term is
defined in Regulation D, as amended, under the Securities Act.
(iv) Cerner is not a broker-dealer subject to Regulation T of
the Federal Reserve Board.
(v) Cerner has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Cerner Shares, and Cerner is capable of bearing
the economic risks of such investment, including a complete loss of its
investment in the Cerner Shares.
(vi) Cerner has been given the opportunity to ask questions
of, and receive answers from, the Company concerning the Company, the Cerner
Shares and other related matters. Cerner further represents and warrants to the
Company that the Company has made available to Cerner or its agents all
documents and information requested by or on behalf of Cerner relating to an
investment in the Cerner Shares, including, without limitation, the risks
relating to the Business described in Synetic's Annual Report on Form 10-K for
the fiscal year ended June 30, 1998. In evaluating the suitability of an
investment in the Cerner Shares, Cerner has not relied upon any representations
or other information (whether oral or written) made by or on behalf of the
Company other than as contemplated by the two preceding sentences and Article
III.
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SECTION 4.05. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement or the Ancillary Agreements
based upon arrangements made by or on behalf of Cerner.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Further Assurances. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated by this Agreement and the Ancillary
Agreements.
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of the Company. The
obligations of the Company to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Cerner contained in this Agreement
shall have been true and correct when made and shall be true and
correct as of the Closing, with the same force and effect as if made as
of the Closing Date, other than such representations and warranties as
are made as of another date.
(b) No Prohibition. The purchase of the Cerner Shares by
Cerner shall not be prohibited by any applicable law, court order or
governmental regulation.
(c) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act, applicable to the formation of the Company or the
purchase of the Cerner Shares contemplated hereby or the entering into
of the Ancillary Agreements shall have expired or shall have been
terminated.
SECTION 6.02. Conditions to Obligations of Cerner. The
obligations of Cerner to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions:
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(a) Representations, Warranties and Covenants. The
representations and warranties of the Company, Avicenna and Synetic
contained in this Agreement shall have been true and correct when made
and shall be true and correct as of the Closing, with the same force
and effect as if made as of the Closing Date, other than such
representations and warranties as are made as of another date.
(b) No Prohibition. The purchase of the Cerner Shares by
Cerner shall not be prohibited by any applicable law, court order or
governmental regulation.
(c) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act, applicable to the formation of the Company and the
purchase of the Cerner Shares contemplated hereby or the entering into
of the Ancillary Agreements shall have expired or shall have been
terminated.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Termination. This Agreement shall terminate on
June 30, 1998, if the Closing shall not have occurred by such date.
SECTION 7.02. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 7.03. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by telecopy or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 7.03):
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(a) if to the Company:
c/o Synetic, Inc.
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxx O'M Xxxxxx, Esq.
(b) if to Avicenna or Synetic:
Synetic, Inc.
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxx O'M Xxxxxx, Esq.
(c) if to Cerner:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: President
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with a copy to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
SECTION 7.04. Public Announcements. Except as required by law,
governmental regulation or by the requirements of any securities exchange on
which the securities of a party hereto are listed, no party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the Ancillary Agreements or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as to
the timing and contents of any such press release or public announcement.
SECTION 7.05. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 7.06. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any law,
governmental regulation or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
SECTION 7.07. Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
with respect to the subject matter hereof.
SECTION 7.08. Assignment. This Agreement shall not be assigned
without the express written consent of the parties (which consent may be granted
or withheld in the sole discretion of any party), except that any party hereto
may assign its rights hereunder to an Affiliate of such party; provided,
however, that any such assignment shall not relieve the assigning party of its
obligations hereunder; provided, further, however, that any party may, without
the written consent of any of the other parties, assign and delegate this
Agreement and its rights and obligations hereunder in connection with a merger,
consolidation or sale of all or substantially all
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of its assets (which sale shall include the assignment and assumption of all
rights and obligations under the Ancillary Agreements).
SECTION 7.09. No Third Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and successors and nothing herein, express or implied,
is intended to or shall confer upon any other person or entity, any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 7.10. Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties.
SECTION 7.11. Governing Law. This Agreement shall be governed
by the laws of the State of New York.
SECTION 7.12. Counterparts. This Agreement may be executed 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.
SECTION 7.13. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
SECTION 7.14. Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives trial by jury in any legal action or
proceeding relating to this Agreement, the Ancillary Agreements or the
transactions contemplated hereby and thereby and for any counterclaim therein.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized signatory thereunto
duly authorized as of the date first above written.
SYNETIC HEALTHCARE
COMMUNICATIONS, INC.
By
---------------------------
Name:
Title:
SYNETIC, INC.
By
---------------------------
Name:
Title:
AVICENNA SYSTEMS
CORPORATION
By
---------------------------
Name:
Title:
CERNER CORPORATION
By
---------------------------
Name:
Title:
