UNIT
PURCHASE AGREEMENT, dated August 11, 2009 (this “
Agreement ”), among the sellers listed on
Schedule I hereto, as sellers (collectively, the
“ Sellers ” and, each a “ Seller
”), and Emdeon Inc., a Delaware corporation, as Purchaser
(the “ Purchaser ”).
WHEREAS,
the Board of Directors of the Purchaser (the “ Board
”) has determined to effect an underwritten initial public
offering (the “ IPO ”) of the Purchaser’s
Class A common stock, par value $0.00001 per share (the
“ Class A common stock ”); and
WHEREAS,
in connection with the consummation of the IPO, the Sellers wish to
sell to Purchaser and the Purchaser wishes to purchase from Sellers
limited liability company units of EBS Master LLC (“ EBS
Units ”) and shares of the Purchaser’s Class B
common stock, par value $0.00001 (the “ Class B
common stock ”).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties
hereto agree as follows:
1.1
Definitions . As used in this Agreement, and unless the
context requires a different meaning, the following terms shall
have the meanings set forth below:
“
Additional IPO Closing ” means any additional closing
of the sale of Class A common stock in the IPO pursuant to the
exercise of the underwriters’ over-allotment option, which
closing may occur on the same date and time as the IPO
Closing.
“
Commission ” means the Securities and Exchange
Commission or any similar agency then having jurisdiction to
enforce the Securities Act.
“
Governmental Authority ” means the government of any
nation, state, city, locality or other political subdivision of any
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
“
IPO Closing ” means the initial closing of the sale of
Class A common stock in the IPO.
“
IPO Price ” means the price paid per share for the
Class A common stock by the underwriters to the Company in the
IPO.
“
Lien ” means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other)
or other security interest of any kind or nature
whatsoever.
“
Person ” means any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company,
Governmental Authority or other entity of any kind.
“
Securities Act ” means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
thereunder.
“
Unit ” or “ Units ” means one or
more EBS Units together with an equal number of shares of
Class B common stock.
PURCHASE AND SALE OF
SHARES
(a) Subject
to the terms herein set forth, at the Initial Closing (as defined
herein), each Seller agrees (severally and not jointly) to sell,
convey, assign and transfer to Purchaser the number of Units set
forth opposite such Seller’s name under the column entitled
“Initial Purchased Units” on Schedule I to
this Agreement (“ Initial Purchased Units ”),
and the Purchaser agrees to purchase such Initial Purchased Units
from such Seller for a purchase price per Unit equal to the IPO
Price.
(b) Subject
to the terms herein set forth, at each Additional Closing (as
defined herein) relating to an Additional IPO Closing, each Seller
agrees (severally and not jointly) to sell, convey, assign and
transfer to Purchaser a number of Units equal to the number set
forth opposite such Seller’s name under the column
“Additional Purchased Units” on Schedule I
hereto multiplied by the percentage obtained by dividing
(i) the total number of shares of Class A common stock
purchased by the underwriters in such Additional IPO Closing by
(ii) the aggregate number of shares of Class A common
stock the underwriters are entitled to purchase at all Additional
IPO Closings (“ Additional Purchased Units ”),
and the Purchaser agrees to purchase such Additional Purchased
Units from such Seller for a purchase price per Unit equal to the
IPO Price.
(a) The
closing of the purchase of the Initial Purchased Units (the “
Initial Closing ”) shall occur at the offices of Paul,
Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the
Americas, New York, New York, 10019 at the same time and date as
the IPO Closing.
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(b) Each
closing of the purchase of Additional Purchased Units (an “
Additional Closing ” and, together with the Initial
Closing, the “ Closings ”) shall occur at the
offices of Paul, Weiss, Rifkind, Wharton and Garrison LLP, 1285
Avenue of the Americas, New York, New York, 10019 at the same time
and date as the corresponding Additional IPO Closing.
(c) At
each Closing, (i) the Purchaser shall deliver to each Seller
the purchase price for the Initial Purchased Units or Additional
Purchased Units, as applicable, being purchased by the Purchaser
from such Seller, by wire transfer of immediately available funds
to a bank account designated in writing by such Seller and
(ii) each Seller shall deliver to the Purchaser (A) a
duly endorsed instrument of assignment with respect to the EBS
Units included in the Initial Purchased Units or the Additional
Purchased Units being sold at such Closing in substantially the
form attached hereto as Exhibit A (an “ EBS
Unit Assignment Agreement ”) and (B) a stock
certificate or certificates (if then certificated) representing the
number of shares of Class B common stock included in the
Initial Purchased Units or the Additional Purchased Units being
sold at such Closing and a blank stock power duly
endorsed.
2.3
Conditions to Closing .
(a) The
obligations of the Purchaser and each Seller to be performed at any
Closing shall be conditioned upon the simultaneous or prior
completion of the IPO Closing or the applicable Additional IPO
Closing.
(b) The
obligations of the Purchaser to be performed at any Closing shall
be subject to the condition that the representations and warranties
set forth in Article IV shall be true and correct as of such
Closing as if then made.
(c) The
obligations of each Seller to be performed at any Closing shall be
subject to the condition that the representations and warranties of
Purchaser set forth in Article III shall be true and correct
as of such Closing as if then made.
REPRESENTATIONS AND WARRANTIES OF
THE SELLERS
Each
of the Sellers represents, warrants, and agrees, severally with
respect to itself only, as of the date hereof as
follows:
3.1
Capacity; Execution and Delivery; Enforceability . Such
Seller has the legal capacity to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. Such Seller
has duly executed and delivered this Agreement (and will duly
execute and deliver any EBS Unit Assignment Agreement), and,
assuming due execution and delivery by the Purchaser, each such
agreement constitutes or will constitute the legal, valid and
binding obligation of such Seller, enforceable against such Seller
in accordance with its terms, except as enforceability
may
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be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.
3.2
Title . Such Seller owns beneficially and of record and has
full power and authority to convey, free and clear of any Liens,
the EBS Units and shares of Class B common stock included in
the Units set forth opposite its name on Schedule I
hereto. Assuming Purchaser has the requisite power and authority to
be the lawful owner of the EBS Units and shares of Class B
common stock, upon such Seller’s receipt of the applicable
purchase price and the transfer of the Initial Purchase Units or
Additional Purchased Units at the Initial Closing or any Additional
Closing, as applicable, good, valid and marketable title to the EBS
Units and shares of Class B common stock included in the
Initial Purchased Units or any Additional Purchased Units, as
applicable, will pass to Purchaser, free and clear of any
Liens.
3.3
No Conflicts . Neither the execution nor the delivery of
this Agreement (and any EBS Unit Assignment Agreement) nor the
consummation of the transactions contemplated hereby will conflict
with or result in any violation of or constitute a default under
any term of any material agreement, mortgage, indenture, license,
permit, lease, or other
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