AGREEMENT AND PLAN OF MERGER
Exhibit 10.7
This Agreement and Plan of Merger is made and entered into this ___day of , 2009 by
and among Emdeon Inc., a Delaware corporation (“Emdeon”), EBS Holdco II, LLC, a Delaware
limited liability company (“Sub 2”), and H&F Harrington, Inc., a Delaware corporation
(“Harrington” and, together with Sub 2, the “Constituent Entities”).
W I T N E S S E T H:
WHEREAS, the Board of Directors of Emdeon (on behalf of Emdeon in its own capacity and in its
capacity as the sole member of Sub 2) and the Board of Directors of Xxxxxxxxxx each xxxx it
advisable and in the best interests of the Constituent Entities and their respective equityholders
that Xxxxxxxxxx merge with and into Sub 2 under and pursuant to the provisions of the General
Corporation Law of the State of Delaware (the “DGCL”) and the Delaware Limited Liability
Company Act (the “DLLCA”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time
(as defined in Section 1.2) Xxxxxxxxxx will be merged (the “Merger”) with and into Sub 2 in
accordance with the provisions of Section 264 of the DGCL and Section 18-209 of the DLLCA.
Following the Merger, Sub 2 will continue as the surviving entity (the “Surviving Entity”)
and the separate existence of Xxxxxxxxxx shall cease.
Section 1.2 Effective Time. The Merger will be consummated on the Closing Date (as defined in Section 2.1) by the filing of
a certificate of merger substantially in the form of Exhibit A (the “Certificate of
Merger”) with the Secretary of State of the State of Delaware in accordance with Section 264 of
the DGCL and Section 18-209 of the DLLCA. The time the Merger becomes effective in accordance with
Section 103 of the DGCL and Section 18-209(d) of the DLLCA is referred to in this Agreement as the
“Effective Time.”
Section 1.3 Effects of the Merger. The Merger will have the effects set forth in Section 259 (as incorporated by Section 264(e) of
the DGCL) and Section 18-209(g) of the DLLCA. Without limiting the generality of the foregoing, as
of the Effective Time, all properties, rights, privileges, powers and franchises of Xxxxxxxxxx will
vest in Sub 2, as the Surviving Entity, and all debts, liabilities and duties of Xxxxxxxxxx will
become debts, liabilities and duties of Sub 2, as the Surviving Entity.
Section 1.4 Certificate of Formation and Limited Liability Company Agreement.
(a) The Certificate of Formation of Sub 2 as in effect immediately preceding the Effective
Time shall remain unchanged as a result of the Merger and shall continue as the Certificate of
Formation of the Surviving Entity following the Merger.
(b) The Limited Liability Company Agreement of Sub 2 as in effect immediately preceding the
Effective Time shall remain unchanged as a result of the Merger and shall continue as the Limited
Liability Company Agreement of the Surviving Entity following the Merger.
Section 1.5 Officers. The officers of Sub 2 at the Effective Time, if any, shall continue as the officers of the
Surviving Entity, and will hold office from the Effective Time until their respective successors
are duly elected or appointed and qualified in the manner provided in the Limited Liability Company
Agreement of the Surviving Entity or as otherwise provided by law.
Section 1.6 Conversion of Interests. At the Effective Time, each of the following transactions shall be deemed to occur
simultaneously:
(a) The limited liability company interests in Sub 2 outstanding immediately prior to the
Effective Time (100% of which is held by Emdeon) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become limited liability company
interests in the Surviving Entity.
(b) Subject to Section 1.7, each share of Common Stock of Xxxxxxxxxx (“Xxxxxxxxxx Common
Stock”) outstanding immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted
into and become ______ shares
of Class A Common Stock, par value $0.00001 per share, of Emdeon (“Emdeon Class A Stock”).
The sole stockholder of Xxxxxxxxxx (the “Xxxxxxxxxx
Stockholder”) shall receive, along
with the Emdeon Class A Stock, the rights to receive payments in respect of certain cash
tax savings of Emdeon that are the subject of the Tax Receivable Agreement (Reorganizations)
to be entered into by and among Emdeon, H&F ITR Holdco, L.P., GA ITR
Holdco, L.P. and GA-H&F ITR Holdco, L.P., and that relate to Xxxxxxxxxx and transactions
entered into by the Xxxxxxxxxx Stockholder.
(c) The parties acknowledge that Emdeon is issuing the Emdeon Class A Stock to the Xxxxxxxxxx Stockholder pursuant to Section 1.6(b) in
reliance upon the representations given by the Xxxxxxxxxx Stockholder in Section 3.3 of the
Reorganization Agreement, dated as of , 2009, by and among Emdeon, the Xxxxxxxxxx
Stockholder and the other persons party thereto (the “Reorganization Agreement”).
Section 1.7 No Fractional Shares. Notwithstanding anything to the contrary in Section 1.6, no fractional shares of Emdeon Class A
Stock will be issued. If the number of shares of Emdeon Class A Stock to be received by the
Xxxxxxxxxx Stockholder is not a whole number, then the number of shares of Emdeon Class A Stock
that the Xxxxxxxxxx Stockholder shall be entitled to receive pursuant to this Agreement shall be
rounded up or down to the nearest whole share.
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Section 1.8 Xxxxxxxxxx Representations. Xxxxxxxxxx hereby makes the following representations and warranties:
(a) Xxxxxxxxxx has delivered to Emdeon and Sub 2 a true and complete copy of its certificate
of incorporation and bylaws, each as in effect on the date hereof.
(b) The authorized capital stock of Xxxxxxxxxx consists solely of ___shares of
Xxxxxxxxxx Common Stock.
(c) As of the date hereof (and as of immediately prior to the Effective Time), (i) ___
shares of Xxxxxxxxxx Common Stock are issued and outstanding and (ii) except as provided in the
foregoing clause (i), no other shares of any capital stock of Xxxxxxxxxx, or securities convertible
or exchangeable into or exercisable for any shares of capital stock of Xxxxxxxxxx, are issued,
reserved for issuance or outstanding.
(d) Other than its investment in Xxxxxxx & Xxxxxxxx Investors AIV I, L.P. and EBS Master LLC
and the transactions contemplated by the Reorganization Agreement, Xxxxxxxxxx (i) has not conducted
any business since its formation and (ii) has no indebtedness or other liabilities.
(e) All shares of Xxxxxxxxxx Common Stock have been duly authorized and validly issued, are
fully paid and non-assessable and are not subject to any pre-emptive rights.
Section 1.9 Sub 2 Representations. Sub 2 hereby represents and warrants that it has no assets and has not conducted any business
since its formation other than in connection with the transactions contemplated by the
Reorganization Agreement.
Section 1.10 Emdeon Representations. Emdeon hereby represents and warrants that the Emdeon Class A Stock to be issued in accordance
with Section 1.6(b) will be duly authorized by all necessary corporate action on the part of Emdeon
and, when issued in accordance with the terms hereof, will be validly issued, fully paid and
non-assessable.
Section 1.11 Tax Matters. Emdeon and the Constituent Entities intend for and will use all reasonable best efforts to
cause the Merger to qualify as a reorganization under Section 368(a) of the Internal Revenue Code
of 1986, as amended.
ARTICLE II
CLOSING
Section 2.1 The Closing. Promptly following the execution hereof, each of the Constituent Entities shall deliver to the
other evidence of the adoption of this Agreement, and the approval of the Merger, by the requisite
vote of its members and stockholders, as applicable. Subject to such delivery, the consummation of
the Merger
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(the “Closing”) will take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on a date to be mutually agreed upon by
the parties (the “Closing Date”).
Section 2.2 Closing Date Events. At the Closing, the Constituent Entities shall cause the Certificate of Merger to be filed as
provided in Section 1.2.
ARTICLE III
MISCELLANEOUS
Section 3.1 Counterparts. This Agreement may be executed in one or more counterparts (which may be delivered by facsimile
or electronic transmission), all of which shall be considered one and the same agreement, and shall
become effective when one or more such counterparts have been signed by each of Emdeon, Sub 2 and
Xxxxxxxxxx and delivered to the other parties hereto.
Section 3.2 Termination. Notwithstanding anything herein to the contrary, this Agreement and the Merger may be terminated
or abandoned by agreement of each of Emdeon, Sub 2 and Xxxxxxxxxx at any time prior to the
Effective Time.
Section 3.3 Further Assurances. If at any time the Surviving Entity shall consider or be advised that any further assignment or
assurances in law are necessary or desirable to vest in the Surviving Entity the title to any
property or rights of the Constituent Entities, the members and officers of the Constituent
Entities shall grant the members and officers of the Surviving Entity a limited power of attorney
to execute and make all such proper assignments and assurances in law and to do all things
necessary and proper to thus vest such property or rights in the Surviving Entity, and otherwise to
carry out the purposes of this Agreement.
Section 3.4 Governing Law. This Agreement and any disputes arising under or related thereto shall be governed by and
construed in accordance with the internal laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State, without regard to the conflicts of law
principles of such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be
duly executed as of the date first written above.
| EMDEON INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| EBS HOLDCO II, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| H&F XXXXXXXXXX INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Agreement and Plan of Merger]
EXHIBIT A
CERTIFICATE OF MERGER
OF
H&F HARRINGTON INC.
(a Delaware corporation)
(a Delaware corporation)
INTO
EBS HOLDCO II, LLC
(a Delaware limited liability company)
(a Delaware limited liability company)
Pursuant to the provisions of Section 18-209 of the Delaware Limited Liability Company Act
(the “Act”) and Section 264 of the Delaware General Corporation Law (the “DGCL”),
the undersigned DO HEREBY CERTIFY THAT:
| 1. | The name and jurisdiction of formation or organization of the entities that are to merge (the “Constituent Entities”) are H&F Harrington Inc., a Delaware corporation, and EBS Holdco II, LLC, a Delaware limited liability company. | |
| 2. | An Agreement and Plan of Merger (the “Merger Agreement”) has been approved, adopted, certified, executed and acknowledged by each of the Constituent Entities in accordance with Section 18-209 of the Act and Section 264 of the DGCL. | |
| 3. | The name of the surviving entity is EBS Holdco II, LLC (the “Surviving Entity”). | |
| 4. | The executed Merger Agreement is on file at the principal place of business of the Surviving Entity, the address of which is 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000. | |
| 5. | A copy of the Merger Agreement will be furnished by the Surviving Entity, on request and without cost, to any member of either of the Constituent Entities. |
IN WITNESS WHEREOF, this certificate has been executed as of this ___day of ___, 2009 by
the undersigned.
| H&F XXXXXXXXXX INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| EBS HOLDCO II, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Certificate of Merger]
