AGREEMENT AND PLAN OF
MERGER
This
Agreement and Plan of Merger is made and entered into this 5th day
of August, 2009 by and among Emdeon Inc., a Delaware corporation
(“ Emdeon ”), EBS Holdco I, LLC, a Delaware
limited liability company (“ Sub 1 ”), and EBS
Acquisition II LLC, a Delaware limited liability company (“
EBS Acquisition II ” and, together with Sub 1, the
“ Constituent Entities ”).
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 1) and the
members of EBS Acquisition II each deem it advisable and in the
best interests of the Constituent Entities and their respective
equityholders that EBS Acquisition II merge with and into Sub 1
under and pursuant to the provisions of 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:
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) EBS Acquisition II will be merged (the
“ Merger ”) with and into Sub 1 in accordance
with the provisions of Section 18-209 of the DLLCA. Following
the Merger, Sub 1 will continue as the surviving entity (the
“ Surviving Entity ”) and the separate existence
of EBS Acquisition II 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 18-209 of the DLLCA. The time the Merger becomes
effective in accordance with 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 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 EBS Acquisition II will vest in Sub 1, as the
Surviving Entity, and all debts, liabilities and duties of EBS
Acquisition II will become debts, liabilities and duties of Sub 1,
as the Surviving Entity.
Section 1.4 Certificate of Formation and Limited Liability
Company Agreement.
(a) The
Certificate of Formation of Sub 1 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 1 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 1 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 1 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) The
aggregate limited liability company interests in EBS Acquisition II
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holders thereof, be converted into and become an aggregate of
13,773,913 shares of Class A Common Stock, par value $0.00001
per share, of Emdeon (the “ Emdeon Shares ”).
Subject to Section 1.7, the Emdeon Shares shall be allocated
among the members of EBS Acquisition II (the “ EBS
Members ”) in proportion to their percentage interests in
EBS Acquisition II immediately prior to the Effective Time. The EBS
Members shall receive, along with the Emdeon Shares, the rights to
receive payments in respect of cer
|
