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EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
EMAGEON, INC.,
EMAGEON-UV DEVELOPMENT CORPORATION,
ULTRAVISUAL MEDICAL SYSTEMS CORPORATION,
AND
JEFF RUSINOW, AS STOCKHOLDERS' REPRESENTATIVE
APRIL 30, 2003
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SECTION 1.
CERTAIN DEFINITIONS;
INTERPRETATION.........................................................
1
1.1.
Certain
Definitions.........................................................................
1
1.2.
Interpretation.............................................................................
10
SECTION 2.
THE MERGER; EFFECTIVE
TIME.................................................................
10
2.1.
The
Merger.................................................................................
10
2.2.
Effective
Time.............................................................................
10
SECTION 3.
THE SURVIVING
CORPORATION..................................................................
11
3.1.
Certificate of
Incorporation...............................................................
11
3.2.
Bylaws.....................................................................................
11
3.3.
Directors..................................................................................
11
3.4.
Officers...................................................................................
11
SECTION 4.
MERGER
CONSIDERATION.......................................................................
11
4.1.
Merger
Consideration.......................................................................
11
4.2.
Exchange and Payment Procedures; Share
Exchange............................................ 12
4.3.
Dissenting
Shares..........................................................................
14
4.4.
Treatment of Warrants and Stock
Options....................................................
14
SECTION 5.
CLOSING;
DELIVERIES........................................................................
15
5.1.
Closing....................................................................................
15
5.2.
Filings and
Deliveries.....................................................................
15
SECTION 6.
CONDITIONS PRECEDENT TO
CLOSING............................................................
16
6.1.
Conditions to Obligations of Emageon and Merger Sub to
Close............................... 16
6.2.
Conditions to Obligations of Ultravisual to
Close.......................................... 18
6.3.
Additional
Action..........................................................................
21
6.4.
Effects of the
Merger......................................................................
21
6.5.
Tax
Consequences...........................................................................
21
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF
ULTRAVISUAL..............................................
21
7.1.
Existence..................................................................................
21
7.2.
Authority; Inconsistent
Obligations........................................................
22
7.3.
No Violation; Compliance with
Laws.........................................................
22
7.4.
No
Subsidiaries............................................................................
22
7.5.
Capitalization.............................................................................
22
7.6.
Consents...................................................................................
23
7.7.
Possession of Licenses,
Etc................................................................
23
7.8.
Sufficiency of
Assets......................................................................
23
7.9.
Ultravisual Financial Statements;
Liabilities..............................................
23
7.10.
Title to
Properties........................................................................
24
7.11.
Real
Property..............................................................................
24
7.12.
Intellectual Property
Rights...............................................................
25
7.13.
Contracts..................................................................................
26
7.14.
Litigation;
Contingencies..................................................................
26
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7.15.
Taxes......................................................................................
26
7.16.
Employment and Labor
Matters...............................................................
27
7.17.
Compliance with ERISA,
etc.................................................................
28
7.18.
Books and
Records..........................................................................
29
7.19.
Agreements and Transactions with Related
Parties........................................... 29
7.20.
No Agreement in Anticipation of
Sale.......................................................
29
7.21.
Environmental
Matters......................................................................
29
7.22. Bank
Accounts and Safety Deposit
Boxes.....................................................
30
7.23.
Absence of
Changes.........................................................................
30
7.24.
Information
Statement......................................................................
31
7.25.
Full
Disclosure............................................................................
31
SECTION 8.
REPRESENTATIONS AND WARRANTIES OF EMAGEON AND MERGER
SUB................................... 31
8.1.
Existence..................................................................................
31
8.2.
Authority; Inconsistent
Obligations........................................................
32
8.3.
No Violation; Compliance with
Laws.........................................................
32
8.4.
No
Subsidiaries............................................................................
33
8.5.
Capitalization.............................................................................
33
8.6.
Consents...................................................................................
33
8.7.
Possession of Licenses,
Etc................................................................
34
8.8.
Sufficiency of
Assets......................................................................
34
8.9.
Emageon
Financial Statements;
Liabilities..................................................
34
8.10.
Title to
Properties........................................................................
35
8.11.
Real
Property..............................................................................
35
8.12.
Intellectual Property
Rights...............................................................
35
8.13.
Contracts..................................................................................
36
8.14.
Litigation;
Contingencies..................................................................
37
8.15.
Taxes......................................................................................
37
8.16.
Employment and Labor
Matters...............................................................
38
8.17.
Compliance with ERISA,
etc.................................................................
38
8.18.
Books and
Records..........................................................................
39
8.19.
Agreements with Transactions with Related
Parties.......................................... 40
8.20.
No Agreement in Anticipation of
Sale.......................................................
40
8.21.
Environmental
Matters......................................................................
40
8.22. Bank Accounts and
Safety Deposit
Boxes.....................................................
40
8.23.
Absence of
Changes.........................................................................
40
8.24.
Continuity of Business
Enterprise..........................................................
41
8.25.
Information
Statement......................................................................
41
8.26.
Full
Disclosure............................................................................
41
SECTION 9.
CONDUCT OF BUSINESS PENDING
CLOSING........................................................
41
9.1.
Business in the Ordinary
Course............................................................
41
9.2.
Information
Statement......................................................................
43
9.3.
Stockholder
Approval.......................................................................
43
9.4.
Board
Recommendations......................................................................
44
9.5.
Acquisition
Proposals......................................................................
44
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SECTION 10.
INDEMNIFICATION............................................................................
45
10.1.
Indemnification from Ultravisual Escrow
Assets............................................. 45
10.2.
Indemnification from Emageon Reserved
Assets............................................... 46
10.3.
Injunctive or Other Equitable
Relief.......................................................
47
10.4.
Indemnification
Procedures.................................................................
47
10.5.
Other
Limitations..........................................................................
48
10.6.
Exclusive
Remedy...........................................................................
48
10.7.
Survival...................................................................................
48
10.8.
Ultravisual Stockholders'
Representative...................................................
49
10.9.
Emageon Reserved
Assets....................................................................
50
SECTION 11.
TERMINATION................................................................................
51
11.1.
Grounds for
Termination....................................................................
51
11.2.
Effect of
Termination......................................................................
52
SECTION 12.
MISCELLANEOUS..............................................................................
52
12.1.
Fees and
Expenses..........................................................................
52
12.2.
Reasonable
Efforts.........................................................................
52
12.3.
Governing
Law..............................................................................
52
12.4.
Notices....................................................................................
52
12.5.
Entire
Agreement...........................................................................
54
12.6.
Assignability; Binding
Effect..............................................................
54
12.7.
Execution in
Counterparts..................................................................
54
12.8.
Amendments.................................................................................
54
12.9.
Publicity and
Disclosures..................................................................
55
12.10.
Specific
Performance.......................................................................
55
12.11.
Access and
Inspection......................................................................
55
12.12.
Confidentiality............................................................................
55
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AGREEMENT AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is entered into as
of
April 30, 2003 by and among Emageon, Inc.,
a Delaware corporation ("EMAGEON"),
Emageon - UV Development Corporation, a
Delaware corporation and wholly-owned
subsidiary of Emageon ("MERGER SUB"),
Ultravisual Medical Systems Corporation, a
Delaware corporation ("ULTRAVISUAL") and
Jeff Rusinow, as Stockholders'
Representative (as defined herein).
WHEREAS,
the Boards of Directors of Emageon, Merger Sub and Ultravisual
each have determined that it is advisable
and in the best interests of their
respective stockholders for Merger Sub to
merge with and into Ultravisual in
accordance with the General Corporation Law
of the State of Delaware (the
"DGCL"), on the terms and subject to the
conditions of this Agreement; and
WHEREAS,
as a condition and an inducement to the willingness of Emageon
and Merger Sub to enter into this
Agreement, certain stockholders of Ultravisual
have concurrently herewith entered into a
Support Agreement with Emageon and
Merger Sub, pursuant to which, among other
things, such stockholders have agreed
to vote the shares of capital stock owned
by them in favor of the merger
contemplated by this Agreement; and
WHEREAS,
for federal income tax purposes, it is intended that the merger
of Ultravisual with and into Merger Sub
will qualify as a reorganization under
the provisions of Sections 351, 361,
368(a)(1)(A) and 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended
(the "CODE"), and this Agreement
constitutes a plan of reorganization for
purposes of Sections 354, 361 and 368
of the Code.
NOW,
THEREFORE, based upon the above premises and in consideration of
the
mutual representations, warranties,
covenants and agreements set forth herein,
the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS;
INTERPRETATION
1.1.
CERTAIN DEFINITIONS.
For purposes of this Agreement, the following
capitalized terms will have the meanings
specified below (all terms used in this
Agreement that are not defined in this
SECTION 1.1 but defined elsewhere in this
Agreement, will have for purposes of this
Agreement the meanings set forth
elsewhere in this Agreement):
"ACTION"
shall mean any action, suit, litigation, complaint,
counterclaim,
claim, petition, mediation contest, or
administrative proceeding, whether at
Law, in equity, in arbitration or
otherwise, and whether conducted by or before
any Government or other Person.
"ACCREDITED INVESTOR" shall mean any Ultravisual Stockholder who is
an
"accredited investor" within the meaning of
Rule 501 under the Securities Act
and who executes and delivers to Emageon,
at or prior to the Closing, a fully
completed Investor Certification confirming
that such Ultravisual Stockholder is
an "accredited investor" within the meaning
of Rule 501 under the Securities
Act.
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"ADDITIONAL AGREEMENTS" means each of the Amended Stockholders
Agreement,
the Registration Rights Agreement, the
Ultravisual Warrants, the Stock
Restriction Agreement and the Employment
Agreements.
"AFFILIATE" of any Person means (i) any director, officer or
employee of
such Person, (ii) any direct or indirect
holder of five percent (5%) or more of
any class of stock (or other equity
interest) of such Person, (iii) any spouse,
parent, sibling, or descendant (by blood or
adoption) of such Person, (iv) any
trust or family limited partnership, in
whole or in part, for the benefit of, or
owned by, such Person or any Person
specified in clauses (i), (ii) or (iii)
hereof, and (v) any other Person that,
directly or indirectly, Controls, is
Controlled by or is under common Control
with such Person.
"AGREEMENT" shall have the meaning set forth in the recitals to
this
Agreement (the "RECITALS").
"ALTERNATIVE TRANSACTION" shall have the meaning set forth in
SECTION
9.4(b).
"AMENDED
STOCKHOLDERS AGREEMENT" shall mean that certain Amended and
Restated Stockholders Agreement, dated
October 2, 2001, as amended as of the
Closing Date pursuant to an amendment
substantially in the form attached hereto
as EXHIBIT 1.1(a), as the same may be
amended, restated, supplemented or
otherwise modified from time to time.
"ACQUISITION AGREEMENT" shall have the meaning set forth in
SECTION
9.4(b).
"ACQUISITION PROPOSAL" shall have the meaning set forth in SECTION
9.5.
"ASSUMED
ULTRAVISUAL OPTIONS" shall have the meaning set forth in
SECTION
4.4(b).
"AVAILABLE
EMAGEON RESERVED ASSETS" shall have the meaning set forth in
SECTION 10.9(a).
"BUSINESS
DAY" shall mean any day other than a Saturday, a Sunday or a
day
on which commercial banks in Birmingham,
Alabama, are required or authorized to
be closed.
"CANCELLATION AGREEMENT" shall have the meaning set forth in
SECTION
4.4(a).
"CASH
CONSIDERATION" shall have the meaning set forth in SECTION
4.1(a).
"CERTIFICATE OF MERGER" shall have the meaning set forth in SECTION
2.2.
"CHANGE OF
CONTROL" shall mean: (x) a consolidation or merger of Emageon
with or into any other Person in which the
holders of Emageon's outstanding
capital stock immediately before such
consolidation or merger do not,
immediately after such consolidation or
merger, retain stock representing a
majority of the voting power of the
surviving corporation of such consolidation
or merger; (y) a transaction in which
Emageon stockholders transfer more than
50% of the voting power of Emageon; or (z)
a sale of all or substantially all of
the assets of Emageon.
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"CLAIMED
SHARES" shall have the meaning set forth in SECTION 10.9(d).
"CLOSING"
shall have the meaning set forth in SECTION 5.1.
"CLOSING
DATE" shall have the meaning set forth in SECTION 5.1.
"CODE"
shall have the meaning set forth in the Recitals.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
SECTION
12.13.
"CONTINUING EMPLOYEES" shall have the meaning set forth in SECTION
4.4(a).
"CONTROL"
means a Person possesses, directly or indirectly, the power to
direct or cause the direction of the
management and policies of another Person,
whether through the ownership of voting
securities, by contract or otherwise.
"DGCL"
shall have the meaning set forth in the Recitals.
"DISCLOSEE" shall have the meaning set forth in SECTION 12.13.
"DISCLOSING PARTY" shall have the meaning set forth in SECTION
12.13.
"DISSENTERS' RIGHTS" shall mean the rights of any Person pursuant
to the
DGCL to receive for their shares of capital
stock in cash the value of such
Person's shares in lieu of the Merger
Consideration.
"DISSENTING SHARES" shall mean any Ultravisual Shares as to which
the
holder thereof has demanded appraisal with
respect to the Merger in accordance
with Section 262 of the DGCL and as of the
Effective Time has neither
effectively withdrawn nor lost such
Person's right to such appraisal.
"EFFECTIVE
TIME" shall have the meaning set forth in SECTION 2.2.
"EMAGEON"
shall have the meaning set forth in the Recitals.
"EMAGEON
BUSINESS" shall mean the business of marketing and selling
certain software solutions and services
related to digital storage and
distribution management of medical
images.
"EMAGEON
CERTIFICATES" shall mean the certificates representing shares
of
Emageon Common Stock or Emageon Series D
Preferred Stock, as the case may be.
"EMAGEON COMMON STOCK" shall
mean the common stock of Emageon, $.001 par
value per share.
"EMAGEON
COMMON STOCK VALUE" shall mean $.77 per share.
"EMAGEON
CONTRACTS" shall have the meaning set forth in SECTION 8.13.
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"EMAGEON
DISCLOSURE MEMORANDUM" shall have the meaning set forth in the
introduction to SECTION 9.
"EMAGEON
EMPLOYEE BENEFIT PLANS" shall have the meaning set forth in
SECTION 8.17(a).
"EMAGEON
FINANCIAL STATEMENTS" shall have the meaning set forth in
SECTION
8.9(a).
"EMAGEON
INDEMNITEE" shall have the meaning set forth in SECTION 10.1.
"EMAGEON
LEASED REAL PROPERTY" shall have the meaning set forth in
SECTION
8.11(a).
"EMAGEON
PERMITS" shall have the meaning set forth in SECTION 8.7.
"EMAGEON
PROPERTY LEASES" shall have the meaning set forth in SECTION
8.11(a).
"EMAGEON
REFERENCE DATE BALANCE SHEET" shall have the meaning set forth
in
SECTION 8.9(a).
"EMAGEON
REFERENCE DATE" shall have the meaning set forth in SECTION
8.9(a).
"EMAGEON
RESERVED ASSETS" shall have the meaning set forth in SECTION
4.2(b)(ii).
"EMAGEON
SERIES D PREFERRED STOCK" shall mean the Series D Preferred
Stock, as defined in the Restated Charter,
$.001 par value per share.
"EMAGEON
SERIES D PREFERRED STOCK VALUE" shall mean $.77 per share.
"EMAGEON
SHARES" shall mean the issued and outstanding shares of Emageon
common stock and preferred stock.
"EMAGEON
WARRANTS" shall mean warrants to purchase shares of Emageon
Common Stock, which warrants shall be in
substantially the form of EXHIBIT
1.1(b).
"EMPLOYMENT AGREEMENTS" shall mean the employment agreements
between
Emageon and each of Mark Gehring, Praveen
Sinha and Roger Chylla, each dated as
of the Closing Date, as each Employment
Agreement may be amended, restated,
supplemented or otherwise modified from
time to time.
"ENVIRONMENTAL LAWS" shall mean all federal, national, state,
provincial,
municipal, and local Laws (which shall not
include foreign laws), norms, general
or particular conditions, conventions,
requirements, covenants and Orders
relating to health, safety and the
environment, including, without limitation,
Laws and covenants relating to emissions,
discharges, releases or threatened
releases of pollutants, contaminants,
chemicals, or industrial, toxic or
hazardous substances, materials or wastes
of every kind and nature into the
environment (including without limitation
ambient air, surface water, ground
water, soil and subsoil), or otherwise
relating to the manufacture, generation,
processing, distribution, application, use,
treatment, storage, disposal,
transport or handling of pollutants,
contaminants, chemicals, or industrial,
toxic or hazardous
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substances, materials or wastes, or to
occupational or worker safety and health,
and any and all Laws, directives,
guidelines, policies, plans, Orders,
stipulations, provisions and conditions of
Environmental Permits, licenses,
stipulations, certificates of
authorization, and other operating authorizations,
notices or demand letters issued, entered,
promulgated or approved thereunder.
"ENVIRONMENTAL PERMITS" shall mean all permits, licenses,
certificates,
approvals, authorizations, regulatory plans
or compliance schedules required by
applicable Environmental Laws, or issued by
a Government pursuant to applicable
Environmental Laws, or entered into by
agreement of the party to be bound,
relating to activities that affect human
health or the environment, including,
without limitation, permits, licenses,
certificates, approvals, authorizations,
regulatory plans and compliance schedules
for air emissions, water discharges,
pesticide and herbicide or other
agricultural chemical storage, use or
application, and Hazardous Material or
Solid Waste generation, use, storage,
treatment and disposal.
"ERISA
AFFILIATE" shall have the meaning set forth in SECTION 7.17(h).
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW
AGENT" shall be a person mutually agreed upon by Emageon and
Ultravisual prior to Closing, in its
capacity as Escrow Agent under the Escrow
Agreement.
"ESCROW
AGREEMENT" shall have the meaning set forth in SECTION
4.2(b)(i).
"EXCLUDED
OPTIONEE" shall have the meaning set forth in SECTION 4.4(b).
"FORUM"
shall mean any federal, national, state, local, municipal or
foreign court, Governmental agency,
administrative body or agency, tribunal,
private alternative dispute resolution
system, or arbitration panel.
"GAAP" shall mean generally
accepted accounting principles, consistently
applied.
"GOVERNANCE DOCUMENTS" shall mean, with respect to Emageon, Merger
Sub or
Ultravisual, as the case may be, the
Certificate of Incorporation, Bylaws,
stockholders agreement, any voting
agreements or similar governing documents.
"GOVERNMENT" shall mean any federal, national, state, provincial,
local,
municipal, or foreign government or any
department, commission, board, bureau,
agency, instrumentality, unit, or taxing
authority thereof.
"HAZARDOUS
MATERIAL" shall mean any substance or material, including
without limitation raw materials,
commercial products and wastes or waste
products that, because of its quantity,
concentration, or physical, chemical or
infectious characteristics may cause or
significantly contribute to an increase
in mortality or an increase in serious,
irreversible or incapacitating illness,
or pose a substantial hazard to human
health or the environment, including
without limitation all substances and
materials designated as hazardous or toxic
under any applicable Environmental Law.
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"HEREOF",
"HEREIN", "HEREUNDER" and words of similar import when used in
this Agreement shall refer to this
Agreement as a whole and not to any
particular provision of this Agreement, and
"SECTION", "EXHIBIT" and like
references are to this Agreement unless
otherwise specified.
"IMPROVEMENTS" shall mean all buildings, structures and other
improvements
of any and every nature located on any real
property and all fixtures attached
or affixed, actually or constructively, to
real property or to any such
buildings, structures or other
improvements.
"INDEMNITEE" shall have the meaning set forth in SECTION 10.4.
"INDEMNITOR" shall have the meaning set forth in SECTION 10.4.
"INFORMATION STATEMENT" shall have the meaning set forth in SECTION
9.2.
"INVESTOR
CERTIFICATION" shall mean an investor certification in a form
reasonably acceptable to Emageon.
"KEY
OFFICER" shall mean (i) with respect to Emageon or Merger Sub,
Charles A. Jett, Jr., Randall Pittman, Gary
York, Noel Gartman and Milton
Silva-Craig, and (ii) with respect to
Ultravisual, Mark Gehring, Praveen Sinha
or Roger Chylla.
"KNOWLEDGE": A Person (other than an individual natural Person)
will be
deemed to have "Knowledge" of a particular
fact or other matter if any
individual natural Person who is serving as
a Key Officer of such Person is
actually aware of such fact or other
matter.
"LAW"
shall mean all federal, national, state, provincial, local,
municipal or foreign constitutions,
statutes, rules, regulations, ordinances,
acts, codes, legislation, treaties,
conventions, judicial decisions, common law
principles, and similar laws and legal
requirements, whether of the United
States of America or any other
jurisdiction, as in effect from time to time.
"LIABILITY" shall mean any liability or obligation whether known
or
unknown, asserted or unasserted, absolute
or contingent, accrued or unaccrued,
liquidated or unliquidated and whether due
or to become due.
"LIEN"
shall mean any mortgage, charge, claim, community property
interest, condition, equitable interest,
option, pledge, security interest,
hypothecation, lien, encumbrance, right of
first refusal, or restriction of any
kind, including any restriction on use,
voting, transfer, receipt of income, or
exercise of any other attribute of
ownership, and the filing of or agreement to
give any financing statement under the lien
notice records or other similar
legislation of any Government.
"LOSS"
shall have the meaning set forth in SECTION 10.1.
"MATERIAL
ADVERSE CHANGE" shall mean a state of facts, event, change or
effect that has, has had, or could
reasonably be expected to have a material
adverse effect on the business assets,
properties, Liabilities, affairs,
financial condition, results of operation
or prospects of Ultravisual or
Emageon, as the case may be.
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"MATERIAL
CONTRACTS" means, with respect to any Person, all written and
oral material agreements and commitments of
such Person, including, without
limitation, all employment and consulting
contracts, severance agreements, union
contracts, distributorship agreements,
agreements with suppliers and customers
(except purchase or sale orders entered
into in the ordinary course of business
and involving the purchase and sale of
goods or services for not more than
$5,000), leases, licenses, employee benefit
plans, deferred compensation
agreements, indentures, notes, bonds,
mortgages, security agreements, loan
agreements, guaranties, franchise
agreements, non-competition agreements,
agreements in respect of the issuance,
sale, repurchase or transfer of such
Person's capital stock, bonds or other
securities, powers of attorney, and any
contract that involves a payment of more
than $25,000, or has a term or requires
performance over a period of more than 180
days.
"MERGER"
shall have the meaning set forth in SECTION 2.1.
"MERGER
CONSIDERATION" shall have the meaning set forth in SECTION
4.1(a).
"MERGER
SUB" shall have the meaning set forth in the Recitals.
"OBLIGATED
COMPANY" shall have the meaning set forth in SECTION 9.1.
"ORDERS"
shall mean all orders, writs, judgments, injunctions, decrees,
rulings, consent agreements, and awards of
or by any Forum or entered by consent
of the party to be bound.
"PERSON"
shall include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a
trust, an unincorporated
organization, a Government and any other
entity.
"QUALIFYING IPO" shall mean an underwritten public offering
pursuant to an
effective registration statement filed
under the Securities Act of 1933, as
amended, covering the offer and sale of the
Emageon Common Stock for the account
of Emageon and/or any selling stockholders
in which the offering price per share
is at least $1.2825 (as adjusted for stock
splits, stock dividends,
reclassifications and the like) and the
aggregate proceeds to Emageon (before
deduction for underwriters' discounts and
expenses relating to the issuance,
including without limitation legal fees of
the Emageon's counsel) are at least
$50,000,000.
"RELATED
PARTY" shall mean, as to any specified Person, (a) any other
Person owning, or formerly owning,
beneficially or of record, directly or
indirectly, any of the shares of or other
equity interest in the specified
Person, (b) any Affiliate of the specified
Person, (c) any director or officer
of the specified Person, (d) any other
Person in which any of the foregoing
Persons has, directly or indirectly, at
least a three percent (3.0%) beneficial
interest in the capital stock or other type
of equity interest of such Person,
or (e) any partnership in which any of the
foregoing Persons is a general
partner or has at least a three percent
(3.0%) beneficial interest.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Amended and
Restated
Registration Rights Agreement among
Emageon, the Ultravisual Stockholders and
the other Emageon stockholders named
therein, dated as of the Closing Date, in
the form attached hereto as EXHIBIT 1.1(e),
as the same may be amended,
restated, supplemented or otherwise
modified from time to time.
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"REPRESENTATIVE" shall have the meaning set forth in SECTION
4.2(a).
"RESTATED
CHARTER" means the Amended and Restated Certificate of
Incorporation of Emageon, in the form
attached hereto as EXHIBIT 1.1(c).
"SECURITIES ACT" shall have the meaning set forth in SECTION
7.5.
"SHARE
CONSIDERATION" shall have the meaning set forth in SECTION
4.1(a).
"SOLID
WASTE" shall mean any garbage, refuse, sludge from a waste
treatment plant, water supply treatment
plant, or air pollution control facility
and other discarded material, including
solid, liquid, semisolid, or contained
gaseous material resulting from industrial,
commercial, mining and agricultural
operations, and from community
activities.
"STOCKHOLDERS' REPRESENTATIVE" shall have the meaning set forth in
SECTION
10.8.
"STOCK
RESTRICTION AGREEMENT" shall mean the Stock Restriction
Agreement
between Emageon, and each of Mark Gehring,
Praveen Sinha and Roger Chylla in the
form attached hereto as EXHIBIT 1.1(d), as
the same may be amended, restated,
supplemented or otherwise modified from
time to time.
"SUBSEQUENT DETERMINATION" shall have the meaning set forth in
SECTION
9.4(b).
"SUPERIOR PROPOSAL"
shall have the meaning set forth in SECTION 9.4(b).
"SURVIVAL
PERIOD" shall have the meaning set forth in SECTION 10.6(a).
"SURVIVING
CORPORATION" shall have the meaning set forth in SECTION 2.1.
"TAX" and
"TAXES" include all past, present or future federal, state,
local and foreign income, alternative or
add-on minimum income, gains,
franchise, excise, property, transfer,
receipts, sales, use, franchise,
employment, social security, license,
payroll, ad valorem, documentary, stamp,
withholding, occupation, recording, value
added or transfer taxes, governmental
charges, fees, customs duties, levies or
assessments (whether payable directly
or by withholding), and, with respect to
any such taxes, any estimated tax,
interest, fines and penalties or additions
to tax and interest on such fines,
penalties and additions to tax.
"THIRD
PARTY REIMBURSEMENT" shall have the meaning set forth in
SECTION
10.5(b).
"TRANSMITTAL LETTER" shall have the meaning set forth in SECTION
4.2(b).
"ULTRAVISUAL" shall have the meaning set forth in the Recitals.
"ULTRAVISUAL BUSINESS" means the business of marketing and selling
certain
medical systems image management and
visualization technology and solutions,
including the VisualPACS Solution.
"ULTRAVISUAL CERTIFICATES" shall mean the certificates representing
all
issued and outstanding Ultravisual
Shares.
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"ULTRAVISUAL COMMON STOCK" shall mean the common stock of
Ultravisual,
$.01 par value.
"ULTRAVISUAL CONTRACTS" shall have the meaning set forth in SECTION
7.13.
"ULTRAVISUAL DISCLOSURE MEMORANDUM" shall have the meaning set
forth in
the introduction to SECTION 7.
"ULTRAVISUAL EMPLOYEE BENEFIT PLANS" shall have the meaning of
SECTION
7.17(a).
"ULTRAVISUAL ESCROW ASSETS" shall have the meaning set forth in
SECTION
4.2(b)(i).
"ULTRAVISUAL FINANCIAL STATEMENTS" shall have the meaning set forth
in
SECTION 7.9.
"ULTRAVISUAL INDEMNITEE" shall have the meaning set forth in
SECTION 10.2.
"ULTRAVISUAL LEASED REAL PROPERTY" shall have the meaning set forth
in
SECTION 7.11(a).
"ULTRAVISUAL OPTION PLAN" shall mean the UltraVisual Medical
Systems
Corporation 2000 Stock Option Plan.
"ULTRAVISUAL OPTIONS" shall mean any and all stock options issued
pursuant
to the Ultravisual Option Plan.
"ULTRAVISUAL PERMITS" shall have the meaning set forth in SECTION
7.7.
"ULTRAVISUAL PROPERTY LEASES" shall have the meaning set forth in
SECTION
7.11(b).
"ULTRAVISUAL REFERENCE DATE BALANCE SHEET" shall have the meaning
set
forth in SECTION 7.9.
"ULTRAVISUAL REFERENCE DATE" shall have the meaning set forth in
SECTION
7.9.
"ULTRAVISUAL SHARES" shall mean the issued and outstanding shares
of
Ultravisual Common Stock.
"ULTRAVISUAL STOCKHOLDER" shall mean each holder of Ultravisual
Common
Stock immediately prior to the Effective
Time.
"UNACCREDITED INVESTOR" shall mean any Person who is not an
Accredited
Investor.
"UV
WARRANTHOLDERS" shall mean Frederick & Company, Inc., Fran
Corby and
Jeff Rusinow, LLC.
"UV
WARRANTS" shall mean those certain Common Stock Purchase Warrants
held
by the UV Warrantholders.
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1.2.
INTERPRETATION. In interpreting this Agreement, the following
rules
of construction shall apply:
(a) The headings
of particular provisions of this Agreement are
inserted for convenience only and will not
be construed as a part of this
Agreement or serve as a limitation or
expansion on the scope of any term or
provision of this Agreement.
(b) Where the
context requires, the use of the singular form in
this Agreement will include the plural, the
use of the plural will include the
singular, and the use of any gender will
include any and all genders.
(c) The word
"including" (and, with correlative meaning, the word
"include") means that the generality of any
description preceding such word is
not limited, and the words "shall" and
"will" are used interchangeably and have
the same meaning.
(d) References
in this Agreement to "Sections" or "Exhibits" shall
be to Sections or Exhibits of or to this
Agreement unless otherwise specifically
provided.
(e) References
to any agreement or contract are to such agreement
or contract as amended, modified or
supplemented from time to time in accordance
with the terms hereof and thereof.
(f) References
to any statute and related regulation shall include
any amendments of the same and any
successor statutes and regulations.
(g) Unless
otherwise specified in this Agreement, all accounting
terms used in this Agreement shall be
interpreted in accordance with GAAP.
SECTION 2. THE MERGER; EFFECTIVE TIME
2.1.
THE MERGER. Upon the
terms and subject to the conditions set forth
in this Agreement, and in accordance with
the DGCL, at the Effective Time,
Merger Sub and Ultravisual shall consummate
a merger (the "MERGER") in which (a)
Merger Sub shall be merged with and into
Ultravisual and the separate corporate
existence of Merger Sub shall thereupon
cease, and (b) Ultravisual shall
continue as the surviving corporation in
the Merger ("SURVIVING CORPORATION").
Upon effectiveness of the Merger, Emageon
shall change its name to "EMAGEON UV,
INC."
2.2.
EFFECTIVE TIME.
Subject to the provisions of this Agreement, Merger
Sub and Ultravisual shall cause the Merger
to be consummated by filing on the
Closing Date a Certificate of Merger (the
"CERTIFICATE OF MERGER") with the
Secretary of State of the State of
Delaware, in such form as required by, and
executed in accordance with, the relevant
provisions of the DGCL and will make
all other filings or recordings required
under the DGCL in order to effect the
Merger. The Merger shall become effective
upon such filing or at such time
thereafter as is provided in the
Certificate of Merger (the "EFFECTIVE TIME")
which shall have been duly filed with the
Secretary of State of the State of
Delaware.
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SECTION 3. THE SURVIVING CORPORATION
3.1.
CERTIFICATE OF
INCORPORATION. At the Effective Time, the Certificate
of Incorporation of Merger Sub shall be and
become the Certificate of
Incorporation of the Surviving
Corporation.
3.2.
BYLAWS. At the
Effective Time, the Bylaws of Merger Sub shall be and
become the Bylaws of the Surviving
Corporation.
3.3.
DIRECTORS. The Board
of Directors of Merger Sub immediately prior to
the Effective Time shall be the initial
officers of the Surviving Corporation,
each of such individuals to serve until his
or her successor is duly elected.
The Board of Directors of Emageon as of the
Effective Time shall consist of the
following individuals, each of such
individuals to serve until his or her
successor is duly elected:
Chris Horgen
Charles A. Jett, Jr.
Gary A. York
Roddy Clark
Hugh Williamson
Paul Reaves
John Thompson
Mark Gehring
3.4.
OFFICERS. The officers
of Merger Sub immediately prior to the
Effective Time shall be the initial
officers of the Surviving Corporation, each
of such officers to serve until his or her
successor is duly elected. The
officers of Emageon as of the Effective
Time shall be as follows:
Charles A. Jett, Jr., President, Chief Executive Officer and
Chairman of the Board
W. Randall Pittman, Chief Financial Officer, Secretary and
Treasurer
Milton Silva-Craig, Chief Operating Officer
Gary York, Chief Technology Officer - Infrastructure
Noel Gartman, Senior Vice President of Marketing
Mark Gehring, Chief Technology Officer - Visualization
SECTION 4. MERGER CONSIDERATION
4.1.
MERGER
CONSIDERATION.
(a) Merger
Consideration. Prior to the Effective Time, Emageon
will adopt and file with the Secretary of
State of the State of Delaware the
Restated Charter. At the Effective Time,
(i) each share of Ultravisual Common
Stock held by Accredited Investors, issued
and outstanding immediately prior to
the Effective Time except for Dissenting
Shares, shall, by virtue of the Merger
and without any further action on the part
of the holder thereof, be converted
into the right to receive (A) .619024
shares of Emageon Common Stock, (B)
.600384 shares of Emageon Series D
Preferred Stock and (C) Emageon Warrants to
purchase .196323 shares of Emageon Common
Stock (collectively, the "SHARE
CONSIDERATION"), and (ii) each
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share of Ultravisual Common Stock held by
any Unaccredited Investors, issued and
outstanding immediately prior to the
Effective Time, except for Dissenting
Shares, shall be converted into the right
to receive sixty-three cents ($0.63)
in cash (the "CASH CONSIDERATION") (with
respect to each Ultravisual
Stockholder, such shares of Emageon Common
Stock, Emageon Series D Preferred
Stock and Emageon Warrants, or such cash,
as the case may be, the "MERGER
CONSIDERATION"). Each of Emageon, Merger
Sub and Ultravisual agrees to report
the Merger as a tax free reorganization
within the meaning of Section 368 of the
Code on all filings made with any taxing
authority.
(b) Ultravisual
Treasury Share Cancellation. At the Effective
Time, each Ultravisual Share that is owned
by Ultravisual or held in the
treasury of Ultravisual shall be canceled
and retired and shall cease to exist
and no consideration shall be delivered or
deliverable in exchange therefor.
(c) Fractional
Shares. Notwithstanding anything herein to the
contrary, (i) no fractional shares of
Emageon Common Stock or Emageon Series D
Preferred Stock shall be issued, and if any
Ultravisual Stockholder would
otherwise be entitled to receive a
fractional share of Emageon Common Stock or
Emageon Series D Preferred Stock, in lieu
thereof such Ultravisual Stockholder
shall be paid an amount in cash equal to
such fractional part of a share
multiplied by the Emageon Common Stock
Value as to any such fractional shares of
Emageon Common Stock, and the Emageon
Series D Preferred Stock Value as to each
fractional share of Emageon Series D
Preferred Stock and (ii) no Emageon
Warrants to purchase fractional shares of
Emageon Common Stock will be issued,
and the number of shares of Emageon Common
Stock issuable upon the exercise of
each Emageon Warrant that is issued as part
of the Merger Consideration will be
rounded down to the next whole number of
shares. Payments of any cash in lieu of
fractional shares at Closing shall be made
by check.
(d)
Anti-Dilution Provisions. In the event that, prior to Closing,
Emageon changes the number of shares of
Emageon Common Stock issued and
outstanding prior to the Effective Time as
a result of a stock split, reverse
stock split, stock dividend or any other
kind of recapitalization, the Share
Consideration shall be proportionately
adjusted.
(e) Other
Shares. At the Effective Time, by virtue of the Merger,
and without any action on the part of
Emageon or Merger Sub, each share of
common stock of Merger Sub issued and
outstanding immediately prior to the
Effective Time shall be converted into and
become one share of common stock of
the Surviving Corporation.
4.2.
EXCHANGE AND PAYMENT
PROCEDURES; SHARE EXCHANGE.
(a) Exchange
Procedures. Promptly, but in no event more than three
(3) Business Days after the Closing Date,
the Surviving Corporation shall cause
to be mailed to each holder of record of
Ultravisual Shares that, immediately
prior to the Closing Date, represented
Ultravisual Shares that were converted
into the right to receive the Merger
Consideration pursuant to SECTION 4.1, (i)
a letter of transmittal in a form
reasonable acceptable to Ultravisual and
Emageon (the "TRANSMITTAL LETTER") and (ii)
instructions for use in effecting
the surrender of the Ultravisual
Certificates in exchange for the applicable
Merger Consideration. Upon surrender of an
Ultravisual Certificate for
cancellation to Emageon or to such other
agent or
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agents as may be appointed by Emageon,
together with such Transmittal Letter,
duly completed and validly executed in
accordance with the instructions thereto,
the holder of such Ultravisual Certificate
shall be entitled to receive in
exchange therefor (i) as to Ultravisual
Shares held by Accredited Investors,
Emageon Certificates representing the
number of whole shares of Emageon Common
Stock and Emageon Series D Preferred Stock
(less the number of shares of Emageon
Common Stock and Emageon Series D Preferred
Stock to be deposited in escrow on
such holder's behalf pursuant to SECTION
4.2(b) hereof), and Emageon Warrants to
which such holder is entitled pursuant to
SECTION 4.1(a) and cash in lieu of
fractional shares (if any) to which such
holder is entitled pursuant to SECTION
4.1(c), and (ii) as to Ultravisual Shares
held by Unaccredited Investors (if
any) the Cash Consideration to which such
Unaccredited Investor(s) shall be
entitled pursuant to SECTION 4.1(a), and in
each case the Ultravisual
Certificate so surrendered shall be
canceled.
(b) Escrow.
(i) Ultravisual
Escrow. Emageon shall deposit with the
Escrow
Agent 3,528,612 shares of the Emageon Common Stock and
3,431,845
shares of
the Series D Preferred Stock that is to be issued as part of
the
Merger
Consideration (the "ULTRAVISUAL ESCROW ASSETS"). The
Ultravisual
Escrow
Assets shall be held in escrow to satisfy the indemnification
obligations of Ultravisual and the Ultravisual Stockholders under
SECTION
10.1 and
disbursed pursuant to the terms of the escrow agreement among
Ultravisual, Emageon, Merger Sub and the Stockholders'
Representative
dated as
of the date hereof (the "ESCROW AGREEMENT"), attached hereto as
EXHIBIT
4.2(b)(i).
(ii) Emageon
Reservation of Shares. In addition to and
separate
from the Merger Consideration, Emageon shall reserve for
issuance,
out of its authorized but unissued shares, the same number of
shares of
Emageon Common Stock and Emageon Series D Preferred Stock as
shall have
been deposited pursuant to SECTION 4.2(b)(i) (the "EMAGEON
RESERVED
ASSETS"). Emageon shall be obligated to use the Emageon
Reserved
Assets to satisfy the
indemnification obligations of Emageon and Merger
Sub under
SECTION 10.2.
(c)
Distributions with Respect to Unexchanged Shares of Company
Capital Stock. No dividends or other
distributions with respect to Emageon
Common Stock or Emageon Series D Preferred
Stock declared or made after the
Effective Time and with a record date after
the Effective Time will be paid to
the holder of any unsurrendered Ultravisual
Certificate until the holder of
record of such Ultravisual Certificate
shall surrender such Ultravisual
Certificate. Subject to applicable law,
following surrender of any such
Ultravisual Certificate, there shall be
paid to the record holder of the
certificates representing whole shares of
Emageon Common Stock or Emageon Series
D Preferred Stock issued in exchange
therefor, without interest, at the time of
such surrender, the amount of dividends or
other distributions with a record
date after the Effective Time theretofore
payable.
(d) Lost
Certificates. If any Ultravisual Certificate is lost,
stolen or destroyed, upon the making of an
affidavit of that fact, in form and
substance reasonably satisfactory to
Emageon, by an Ultravisual Stockholder or
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the Stockholder Representative claiming
such Ultravisual Certificate to be lost,
stolen or destroyed, and upon such
Ultravisual Stockholder or Stockholder
Representative agreeing to indemnify
Emageon, Emageon shall issue in exchange
for such lost, stolen or destroyed
Ultravisual Certificate, the Merger
Consideration pursuant to this
Agreement.
4.3.
DISSENTING SHARES
(a)
Notwithstanding any provision of this Agreement to the
contrary, Dissenting Shares shall not be
converted into or represent a right to
receive the Merger Consideration pursuant
to SECTION 4.1(a), but the holder
thereof shall be entitled to only such
rights as are granted by the DGCL.
(b)
Notwithstanding the provisions of SECTION 4.3(a), if any
Ultravisual Stockholder who or that demands
appraisal of such Person's
Ultravisual Shares under the DGCL
effectively withdraws or loses (through
failure to perfect or otherwise) such
Person's right to appraisal, then as of
the Effective Time or the occurrence of
such event, whichever later occurs, such
Person's Ultravisual Shares shall
automatically be converted into and represent
only the right to receive the Merger
Consideration, as provided in SECTION
4.1(a), upon surrender of the Ultravisual
Certificates pursuant to SECTION 4.2.
(c) Ultravisual
shall give Emageon (i) prompt notice of any
written demands for appraisal or payment of
the fair value of any Ultravisual
Shares, withdrawals of such demands, and
any other instruments served on
Ultravisual pursuant to the DGCL received
by Ultravisual and (ii) the
opportunity to direct all negotiations and
proceedings with respect to demands
for appraisal under the DGCL. Except with
the prior written consent of Emageon,
Ultravisual shall not voluntarily make any
payment with respect to any demands
for appraisal, settle or offer to settle
any such demands.
4.4.
TREATMENT OF WARRANTS
AND STOCK OPTIONS
(a) Ultravisual
shall use commercially reasonable efforts to cause
all Ultravisual Options held by Ultravisual
employees or consultants (subject to
SECTION 4.4(b)) who will continue as
employees or consultants of Emageon
immediately following the Effective Time
("CONTINUING EMPLOYEES"), that are not
exercised prior to the Effective Time, to
be cancelled prior to the Effective
Time pursuant to a cancellation agreement,
in a form acceptable to Emageon (the
"CANCELLATION AGREEMENT") with each such
Continuing Employee. Emageon agrees to
issue new Emageon stock options to purchase
up to an aggregate of 2,250,000
(including in such amount the stock options
to be issued pursuant to subsection
(b) below) shares of Emageon Common Stock
(with respect to each such Person, at
an exercise price per share of $0.57 (or as
may otherwise be mutually agreed
upon by Emageon and Ultravisual), and in
such amounts and with such vesting
periods mutually agreed upon by Emageon and
Ultravisual) under the Emageon, Inc.
2000 Equity Compensation Plan to the
Persons who have executed a Cancellation
Agreement prior to the Effective Time.
(b) Within
thirty (30) days after the Effective Time, except as
otherwise agreed to by Emageon and
Ultravisual prior to Closing, Emageon shall
assume the Ultravisual Options held by any
Excluded Optionee (as defined below)
that are not exercised prior to the
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Effective Time (each, an "ASSUMED
ULTRAVISUAL OPTION"), subject to the terms and
conditions of the Ultravisual Option Plan.
Each Assumed Ultravisual Option shall
continue to have, and be subject to, the
same terms and conditions set forth in
the applicable Ultravisual Option
(including any applicable stock option
agreement or other document evidencing such
Ultravisual Option) immediately
prior to the Effective Time, except that
(except as otherwise agreed to by
Emageon and Ultravisual prior to Closing)
(i) each Assumed Ultravisual Option
shall be exercisable (or shall become
exercisable in accordance with its terms)
for that number of whole shares of Emageon
Common Stock equal to the number of
shares of Ultravisual Common Stock into
which such Ultravisual Option was
exercisable, and (ii) the per share
exercise price for the shares of Emageon
Common Stock issuable upon exercise of such
Assumed Ultravisual Option shall be
equal to $.57. Within thirty (30) days
after the Effective Time, Emageon shall
provide to each Person who holds an Assumed
Ultravisual Option a document
evidencing the foregoing assumption of such
Assumed Ultravisual Option by
Emageon. As used herein, "EXCLUDED
OPTIONEE" means any Person holding
Ultravisual Options as of the Effective
Time that is (A) a former employee of
Ultravisual, (B) a Person who will not
perform services for Emageon immediately
following the Effective Time, (C) a Person
to whom the issuance of Emageon stock
options would not be exempt from the
registration requirements of the Securities
Act and applicable state securities law, as
determined by Emageon in its sole
discretion, or (D) a Continuing Employee
who has not executed a Cancellation
Agreement.
(c) Promptly
after closing, Emageon shall take all steps
reasonably necessary to grant to the UV
Warrantholders, in exchange for their
cancellation and delivery to Emageon of
their UV Warrants, new warrants to
purchase securities of Emageon in
accordance with the terms of such UV Warrants
relating to a merger of Ultravisual with
another company. The effect of such
exchange shall be that the UV
Warrantholders will have the right to receive,
upon the exercise of such new warrants and
payment of the exercise price
therefor, the kind and amount of Emageon
securities that such UV Warrantholders
would have been entitled to receive if,
immediately prior to the closing of the
Merger, such UV Warrantholders had held the
number of shares of Ultravisual
Common Stock that were then purchasable
upon the exercise of such UV Warrants.
SECTION 5. CLOSING; DELIVERIES
5.1.
CLOSING. The closing
of the Merger (the "CLOSING") shall take place
at 10:00 a.m. on the second Business Day
after all of the conditions set forth
in SECTIONS 6.1 and 6.2 have been satisfied
or waived (the "CLOSING Date") at
the offices of Kilpatrick Stockton LLP,
1100 Peachtree Street, Suite 2800,
Atlanta, Georgia 30309-4530 or at such
other date, time or place as may be
agreed to in writing by Emageon and
Ultravisual.
5.2.
FILINGS AND
DELIVERIES
(a) Prior to Closing, Emageon
will file the Restated Charter with
the Secretary of State of the State of
Delaware.
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(b) At the
Closing, Merger Sub and Ultravisual will file the
Certificate of Merger with the Secretary of
State of the State of Delaware to
effect the Merger.
(c) All
deliveries, payments and other transactions and documents
relating to the Closing shall be
interdependent and none shall be effective
unless and until all are effective (except
to the extent that the party entitled
to the benefit thereof has waived
satisfaction or performance thereof as a
condition precedent to the Closing).
SECTION 6. CONDITIONS PRECEDENT TO
CLOSING
6.1.
CONDITIONS TO
OBLIGATIONS OF EMAGEON AND MERGER SUB TO CLOSE. The
obligations of Emageon and Merger Sub under
this Agreement to consummate the
Merger and the other transactions
contemplated by this Agreement are subject to
the fulfillment and satisfaction of each
and every one of the following
conditions at or prior to the Closing, any
or all of which may be waived in
writing in whole or in part by Emageon:
(a)
Representations and Warranties. Each of the representations
and warranties contained in this Agreement
and in any certificate, instrument,
schedule, agreement or other writing
delivered by or on behalf of, or in respect
of, the Ultravisual Business and
Ultravisual that is not qualified by
materiality shall have been true and
correct in all material respects as of the
date when made and will be true and correct
in all material respects on the
Closing Date as though made again at and as
of the Closing Date, and each of the
representations and warranties contained in
this Agreement and in any
certificate, instrument, schedule,
agreement or other writing delivered by or on
behalf of, or in respect of, the
Ultravisual Business and Ultravisual that is
qualified by materiality shall have been
true and correct in all respects as of
the date when made and will be true and
correct on the Closing Date as though
made again at and as of the Closing
Date.
(b) Compliance
with Covenants and Conditions. Ultravisual shall
have performed and complied with all
covenants and agreements and satisfied all
conditions required by this Agreement to be
performed or complied with, or
satisfied by it prior to or on the Closing
Date.
(c) Requisite
Stockholder Approval. This Agreement, the Merger and
the transactions contemplated herein shall
have been duly and validly approved
by the written consent of Ultravisual
Stockholders holding at least 90% of the
Ultravisual Shares.
(d) Closing
Certificates. Ultravisual shall have delivered to
Emageon and Merger Sub a certificate,
executed by such officers as Emageon shall
request, dated as of the Closing Date and
certifying in such detail as Emageon
may request as to the fulfillment and
satisfaction of the conditions specified
in SECTIONS 6.1(a), 6.1(b) AND 6.1(c).
(e) Government
Consents. Emageon, Merger Sub and Ultravisual shall
have received all authorizations, consents
and approvals of any Government
necessary or desirable for the execution,
delivery and performance of this
Agreement and the transactions contemplated
hereby, all such authorizations,
consents and approvals shall be in full
force and effect, and all notices
required to be given to any Government
shall have been given and all applicable
waiting periods shall have expired.
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(f) Consents.
Ultravisual shall have delivered to Emageon and
Merger Sub all registrations, permits,
filings, applications, notices, consents,
approvals, orders, qualifications, and
authorizations of all Persons from which
such consents are required for the
execution, delivery and performance of this
Agreement and the transactions contemplated
hereby (including all consents
required to be obtained from the Wisconsin
Department of Commerce), and none of
such authorizations, consents or approvals
shall be subject to any restrictions
or conditions that require any payment to
the consenting or approving party by
Emageon, Merger Sub or Ultravisual or that
materially adversely affect the
Ultravisual Business, Merger Sub, Emageon
or Ultravisual's assets, properties,
liabilities, results of operations,
condition (financial or otherwise) or
prospects.
(g) Secretary's
Certificate. Emageon and Merger Sub shall have
received a certificate dated the Closing
Date from the Secretary of Ultravisual
certifying as to (i) the Certificate of
Incorporation and Bylaws of Ultravisual,
(ii) the resolutions of the Board of
Directors and stockholders of Ultravisual
approving the execution, delivery and
performance of this Agreement and any
Additional Agreements, the transactions
contemplated hereby and thereby, the
taking of any and all other actions
necessary to enable Ultravisual to comply
with the terms hereof and the Additional
Agreements and to consummate the Merger
and the other transactions contemplated in
this Agreement and the Additional
Agreements, and (iii) the incumbency of the
officers of Ultravisual executing
this Agreement and any Additional
Agreements.
(h) Legal
Opinion. Emageon shall have received from Michael, Best
& Friedrich LLP, legal counsel to
Ultravisual, a legal opinion addressed to
Emageon dated the Closing Date in a form
reasonably agreed upon by Emageon and
Ultravisual.
(i) No
Inconsistent Requirements. No Action shall have been
commenced by any Government or Person (i)
seeking to enjoin or prohibit the
transactions contemplated by this Agreement
or any Additional Agreement, or (ii)
claiming that any Person (other than the
Persons set forth in SECTION 7.5 of the
Ultravisual Disclosure Memorandum) is the
holder or the beneficial owner of, or
has the right to acquire or to obtain
beneficial ownership of, any capital
stock, or any other voting, equity, or
ownership interest in Ultravisual, or is
entitled to all or any portion of the
consideration payable for the Ultravisual
Shares.
(j) No
Injunction. No temporary restraining order, preliminary or
permanent injunction or other Order by any
court of competent jurisdiction which
prohibits the consummation of the
transactions contemplated in this Agreement
will have been issued and remain in effect
on the Closing Date; provided,
however, that the parties to this Agreement
will use all reasonable efforts to
have each and every relevant Order or
injunction vacated or reversed prior to
the Closing Date.
(k) No Material
Adverse Change. No Material Adverse Change shall
have occurred with respect to Ultravisual
after the date of this Agreement.
(l) Additional
Agreements and Closing Documents. Emageon shall
have received duly executed and delivered
counterpart originals of each
Additional Agreement, signed by each Person
that is to be a party thereto
including, with respect to the Amended
Stockholders
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Agreement and the Registration Rights
Agreement, each Ultravisual Stockholder
who is an Accredited Investor.
(m) Expenses
Certificate. One Business Day prior to Closing,
Emageon and Merger Sub shall have received
a certificate in form and substance
reasonably satisfactory to Emageon and
executed by Ultravisual's Chief Executive
Officer or Chief Financial Officer, setting
forth and certifying Ultravisual's
aggregate Liability for expenses through
the Closing Date, including all amounts
paid through such date, which shall be
accompanied by such supporting
information and calculations as are
reasonably necessary for Emageon to verify
and determine such amount as of the Closing
Date.
(n) Dissenting
Shares. The number of Dissenting Shares shall not
exceed One Percent (1%) of the aggregate
number of Ultravisual Shares as of the
Effective Time.
(o) Investor
Certifications. Emageon shall have received from all
of the Ultravisual Stockholders Investor
Certifications executed in favor of
Emageon, and duly executed Investor
Certifications from Ultravisual Stockholders
holding at least 99% of the Ultravisual
Shares indicating that such Ultravisual
Stockholders are Accredited Investors.
(p) Amount of
Cash Consideration. The aggregate amount of Cash
Consideration payable by Emageon, together
with the amount of cash Emageon
reasonably believes may be required to be
paid to holders of Dissenting Shares,
shall not exceed $200,000 plus any amount
owed by Emageon to Ultravisual on the
first date when all other conditions to
closing set forth in this SECTION 6.1
have been satisfied.
(q) Powers of
Attorney. Emageon shall have received a power of
attorney, in a form reasonably acceptable
to Emageon, from each Ultravisual
Stockholder appointing the Stockholders'
Representative and expressly agreeing
to the provisions set forth in SECTION 10
of this Agreement.
(r) Options.
Emageon shall have received executed copies of
Cancellation Agreements from at least 93%
of Persons holding Ultravisual
Options.
(s) Sale of
Ultravisual Common Stock. Ultravisual shall have
purchased from Mark Gehring, Praveen Sinha
and Roger Chylla, and shall not have
reissued, an aggregate of 200,000 shares of
Ultravisual Common Stock at a price
per share no greater than $.01.
6.2.
CONDITIONS TO
OBLIGATIONS OF ULTRAVISUAL TO CLOSE. The obligations
of Ultravisual under this Agreement to
consummate the Merger and the other
transactions contemplated by this Agreement
are subject to the fulfillment and
satisfaction of each and every one of the
following conditions at or prior to
the Closing, any or all of which may be
waived in writing in whole or in part by
Ultravisual:
(a)
Representations and Warranties. Each of the representations
and warranties contained in this Agreement
and in any certificate, instrument,
schedule, agreement or other writing
delivered by or on behalf of, or in respect
of, the Emageon Business, Emageon and
Merger Sub that is not qualified by
materiality shall have been true and
correct in all material respects as of the
date when made and will be true and correct
in all material respects on the
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Closing Date as though made again at and as
of the Closing Date, and each of the
representations and warranties contained in
this Agreement and in any
certificate, instrument, schedule,
agreement or other writing delivered by or on
behalf of, or in respect of, the Emageon
Business, Emageon and Merger Sub that
is qualified by materiality shall have been
true and correct in all respects as
of the date when made and will be true and
correct in all respects on the
Closing Date as though made again at and as
of the Closing Date.
(b) Compliance
with Covenants and Conditions. Emageon and Merger
Sub shall have performed and complied with
all covenants, agreements and
satisfied all conditions required by this
Agreement to be performed or complied
with by them, or satisfied by them prior to
or on the Closing Date.
(c) Requisite
Stockholder Approval. This Agreement, the Merger and
the transactions contemplated herein shall
have been duly and validly approved
by the Emageon Stockholders (to the extent
necessary), in accordance with
Emageon's Governance Documents and the
DGCL. This Agreement, the Merger and the
transactions contemplated herein shall have
been duly and validly approved by
the Emageon, as the sole stockholder of
Merger Sub, in accordance with Merger
Sub's Governance Documents and the
DGCL.
(d) Closing
Certificates. Each of Emageon and Merger Sub shall
have delivered to Ultravisual certificates,
executed by such officers as
Ultravisual shall request, dated as of the
Closing, certifying in such detail as
Ultravisual may request as to the
fulfillment and satisfaction of the conditions
specified in SECTIONS 6.2(a), 6.2(b) AND
6.2(c).
(e) Government
Consents. Emageon, Merger Sub and Ultravisual shall
have received all authorizations, consents
and approvals of any Government
necessary or desirable for the execution,
delivery and performance of this
Agreement, the Merger and the other
transactions contemplated hereby, all such
authorizations, consents and approvals
shall be in full force and effect, and
all notices required to be given to any
Government shall have been given and all
applicable waiting periods shall have
expired.
(f) Consents.
Emageon and Merger Sub shall have delivered to
Ultravisual all registrations, permits,
filings, applications, notices,
consents, approvals, orders,
qualifications, and authorizations of all Persons
from which such consents are required for
the execution, delivery and
performance of this Agreement and the
transactions contemplated hereby, and none
of such authorizations, consents or
approvals shall be subject to any
restrictions or conditions that require any
payment to the consenting or
approving party by Ultravisual, Merger Sub
or Emageon or that materially
adversely affect the Emageon Business,
Merger Sub, Emageon, or Emageon's assets,
properties, liabilities, results of
operations, condition (financial or
otherwise) or prospects.
(g) Secretary's
Certificate. Ultravisual shall have received a
certificate dated the Closing Date from (i)
the Secretary of Emageon certifying
as to (A) the Certificate of Incorporation
and Bylaws of Emageon, (B) the
resolutions of the Board of Directors and
stockholders of Emageon approving the
execution, delivery and performance of this
Agreement and any Additional
Agreements, the transactions contemplated
hereby and thereby, the taking of any
and all other actions necessary to enable
Emageon to comply with the terms
hereof and the
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Additional Agreements and to consummate the
Merger and the other transactions
contemplated in this Agreement and the
Additional Agreements, and (C) the
incumbency of the officers of Emageon
executing this Agreement and any
Additional Agreements and (ii) the
Secretary of Merger Sub certifying as to (A)
the Certificate of Incorporation and Bylaws
of Merger Sub, (B) the resolutions
of the Board of Directors and sole
stockholder of Merger Sub approving the
execution, delivery and performance of this
Agreement and any Additional
Agreements, the transactions contemplated
hereby and thereby, the taking of any
and all other actions necessary to enable
Merger Sub to comply with the terms
hereof and the Additional Agreements and to
consummate the Merger and the other
transactions contemplated in this Agreement
and the Additional Agreements, and
(C) the incumbency of the officers of
Merger Sub executing this Agreement and
any Additional Agreements and
(h) Legal
Opinion. Ultravisual shall have received from Kilpatrick
Stockton, LLP, legal counsel to Emageon, a
legal opinion addressed to
Ultravisual dated the Closing Date in a
form reasonably agreed upon by Emageon
and Ultravisual.
(i) No
Inconsistent Requirements. No Action shall have been
commenced by any Government or Person (y)
seeking to enjoin or prohibit the
transactions contemplated by this Agreement
or any Additional Agreement, or (z)
claiming that any Person is the holder or
the beneficial owner of, or has the
right to acquire or to obtain beneficial
ownership of, any capital stock, or any
other voting, equity, or ownership interest
in Emageon or Merger Sub.
(j) No
Injunction. No temporary restraining order, preliminary or
permanent injunction or other Order by any
court of competent jurisdiction which
prohibits the consummation of the
transactions contemplated in this Agreement
will have been issued and remain in effect
on the Closing Date; provided,
however, that the parties to this Agreement
will use all reasonable efforts to
have each and every relevant Order or
injunction vacated or reversed prior to
the Closing Date.
(k) No Material
Adverse Change. No Material Adverse Change shall
have occurred with respect to Emageon after
the date of this Agreement.
(l) Additional
Agreements and Closing Documents. Ultravisual shall
have received duly executed and delivered
execution counterpart originals of
each Additional Agreement, signed by each
Person that is to be a party thereto.
(m) Personal
Guaranties. Mark Gehring, Praveen Sinha, Roger Chylla
and John W. Thompson shall have received
indemnification agreements, in a form
reasonably acceptable to each such
individual and Emageon, from Emageon
indemnifying such individuals from any
claims, not to exceed the lesser of the
amount owed to the Wisconsin Department of
Commerce on the Closing Date and
$250,000 in the aggregate, made by the
Wisconsin Department of Commerce in
connection with those certain personal
guaranties issued to the Wisconsin
Department of Commerce made by such
individuals prior to the date hereof;
provided, however, that such
indemnification agreements shall not be required to
be given by Emageon if, prior to Closing,
such personal guaranties have been
released.
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(n) Tax-Free
Status. Ultravisual shall have reasonably
determined that the Merger will for federal
income tax purposes constitute a
reorganization within the meaning of
Section 368 of the Code.
6.3.
ADDITIONAL ACTION.
Each of Emageon and the Surviving Corporation
may, at any time and from time to time from
and after the Effective Time, take
any action, including executing and
delivering any document, in the name and on
behalf of Ultravisual, in order to
consummate and give effect to the
transactions contemplated by this
Agreement.
6.4.
EFFECTS OF THE MERGER.
The Merger shall have the effects set forth
in the applicable provisions of the DGCL
with respect to mergers of domestic
corporations.
6.5.
TAX CONSEQUENCES. It
is intended that the Merger will constitute a
reorganization within the meaning of
Sections 368(a)(1)(A) and 368(a)(2)(E) of
the Code and that this Agreement
constitutes a plan of reorganization for
purposes of Sections 354 and 361 of the
Code. Each of Emageon, Merger Sub and
Ultravisual will be a party within the
meaning of Section 368(b) of the Code to
such reorganization.
SECTION 7. REPRESENTATIONS AND WARRANTIES
OF ULTRAVISUAL
Ultravisual has delivered to Emageon a disclosure memorandum
(the
"ULTRAVISUAL DISCLOSURE MEMORANDUM")
setting forth any and all exceptions or
supplemental information to the
representations and warranties contained in this
SECTION 7. The disclosures set forth in the
Ultravisual Disclosure Memorandum
qualify or supplement only those
representations and warranties specifically
referenced and referred to in the
Ultravisual Disclosure Memorandum, and a
disclosure or supplement related to any
particular representation, warranty or
covenant shall not qualify or supplement
any other representation, warranty or
covenant unless evident by its context or
unless expressly stated. To induce
Emageon and Merger Sub to enter into this
Agreement and to consummate the
transactions contemplated by this
Agreement, subject to the qualifications set
forth in the Ultravisual Disclosure
Memorandum, Ultravisual represents and
warrants as follows:
7.1.
EXISTENCE
(a) Ultravisual
is a corporation duly organized, validly existing
and in good standing under the laws of the
State of Delaware and has full
corporate power and is entitled to own or
lease its assets and properties and to
carry on its business as such business is
being conducted and to carry on its
business in the places where its business
is conducted and its assets and
properties are owned or leased. Ultravisual
has delivered to Emageon true,
correct and complete copies of (i) the
Certificate of Incorporation and Bylaws
of Ultravisual, as amended to date, (ii)
the minutes and other similar records
of meetings of the stockholders of
Ultravisual and its Board of Directors, which
contain all records of meetings and actions
taken in lieu thereof by
Ultravisual's stockholders and Board of
Directors and show all corporate actions
taken by Ultravisual's stockholders and the
Board of Directors, or any
committees thereof, (iii) its share
transfer records, which reflect fully all
issuances, transfers and redemptions of
Ultravisual's shares since the date of
its incorporation, and (iv) certificates of
authority evidencing qualification
as a foreign corporation where
required.
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(b) Section
7.1(b) of the Ultravisual Disclosure Memorandum lists
all locations where Ultravisual currently
owns or leases real property or has an
office or place of business and all trading
names under which Ultravisual has
conducted its affairs.
7.2.
AUTHORITY;
INCONSISTENT OBLIGATIONS
(a) Ultravisual
has the full right, power and authority to execute
and deliver and to perform and comply with
this Agreement and the Additional
Agreements to which it is or will be a
party. Except for required stockholder
approvals, all proceedings and actions
required to be taken by Ultravisual to
authorize the execution, delivery and
performance of this Agreement and the
Additional Agreements have been taken. This
Agreement and each Additional
Agreement to which it is or will be a
party, have been, or in the case of any
Additional Agreement will be at the
Closing, when and if executed and delivered
by Ultravisual, duly and validly executed
and delivered by Ultravisual, by its
duly authorized officers or
representatives. This Agreement constitutes, and
each Additional Agreement when executed and
delivered will constitute, assuming
the due authorization, execution and
delivery by the other parties to such
agreements, the valid and legally binding
obligation, subject to general equity
principles, of Ultravisual party thereto
enforceable in accordance with its
respective terms.
(b) Neither the
execution and delivery of this Agreement or of the
Additional Agreements by Ultravisual, nor
the consummation of the transactions
contemplated by this Agreement or by any
Additional Agreement, will (i) result
in a violation of the Certificate of
Incorporation or Bylaws of Ultravisual,
(ii) violate any Law or Order applicable to
Ultravisual, or (iii) result in a
breach of, conflict with or default under,
any term or provision of any material
indenture, note, mortgage, bond, security
agreement, loan agreement, guaranty,
pledge, or other instrument, contract,
agreement or commitment to which
Ultravisual is, or will be upon
consummation of the transactions contemplated by
this Agreement be, a party or by which it
or any of its assets, properties, or
businesses is subject or bound; nor will
these actions result in (x) the
creation of any Lien on any such asset,
property or business, or the revenues or
profits of Ultravisual, (y) the
acceleration or creation of any obligation of
Ultravisual, or (z) the forfeiture of any
material right or privilege of
Ultravisual that may affect its ability to
perform under this Agreement or any
Additional Agreement or to carry on its
business.
7.3.
NO VIOLATION;
COMPLIANCE WITH LAWS. Ultravisual is not in default
under or in violation of (a) its
Certificate of Incorporation or Bylaws, or (b)
any Order, and Ultravisual's business has
been conducted, in all material
respects, in accordance with, and are in
compliance in all material respects
with, all applicable Laws.
7.4.
NO SUBSIDIARIES.
Ultravisual does not own or Control, directly or
indirectly, any capital stock or
proprietary interest or investment in any
Person.
7.5.
CAPITALIZATION. The
authorized, issued and outstanding capital stock
of Ultravisual is as set forth in Section
7.5 of the Ultravisual Disclosure
Memorandum. Section 7.5 of the Ultravisual
Disclosure Memorandum contains a
true, complete and accurate list as of the
date of this Agreement of (i) all
record and beneficial holders of capital
stock of Ultravisual, including the
number of shares of capital stock held by
each such holder, and (ii) all
outstanding warrants, options, agreements,
convertible securities or other
commitments pursuant to which
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Ultravisual is or may become obligated to
issue any shares of the capital stock
or other securities of Ultravisual, and
lists the names of each Person entitled
to receive such shares or other securities
and the shares of capital stock or
other securities required to be issued
thereunder. There are no preemptive or
similar rights to purchase or otherwise
acquire shares of capital stock of
Ultravisual pursuant to any provision of
Law or any agreement to which
Ultravisual is a party that have not been
effectively waived; and Ultravisual is
not a party to, and there is, and
immediately followi
