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 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 ”).
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 Harrington each deem it advisable and in the
best interests of the Constituent Entities and their respective
equityholders that Harrington 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:
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) Harrington 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 Harrington 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 Harrington will vest in Sub 2, as the Surviving
Entity, and all debts, liabilities and duties of Harrington 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, the shares of Common Stock of Harrington
(“ Harrington 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 an aggregate of 11,639,697 shares of
Class A Common Stock, par value $0.00001 per share, of Emdeon
(“ Emdeon Class A Stock ”). The sole
stockholder of Harrington (the “ Harrington
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 Harrington and
transactions entered into by the Harrington Stockholder.
(c) The
parties acknowledge that Emdeon is issuing the Emdeon Class A
Stock to the Harrington Stockholder pursuant to
Section&
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