12,500,000 Shares of Common Stock Allscripts Healthcare Solutions, Inc. UNDERWRITING AGREEMENT
Exhibit 99.21
Execution Version
12,500,000 Shares of Common Stock
Allscripts Healthcare Solutions, Inc.
November 11, 2010
Barclays Capital Inc.
As Representatives of the Several Underwriters,
c/o Barclays Capital Inc.
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Attention: Syndicate Registration
As Representatives of the Several Underwriters,
c/o Barclays Capital Inc.
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Attention: Syndicate Registration
Dear Sirs:
1. Introductory. The stockholders listed on Schedule A hereto (the “Selling
Stockholders”), each a direct or indirect wholly-owned subsidiary of Misys plc, a public limited
company formed under the laws of England and Wales (“Misys”), agree severally with the several
Underwriters named in Schedule B hereto (the “Underwriters”) to sell to the several
Underwriters an aggregate of 12,500,000 outstanding shares (“Offered Securities”) of the common
stock, par value $0.01 per share (“Securities”), of Allscripts Healthcare Solutions, Inc., a
Delaware corporation (the “Company”). To the extent there are no additional Underwriters listed on
Schedule B other than you, the term Underwriters as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires.
2. Representations and Warranties of the Company and the Selling Stockholders.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain Defined
Terms. The Company has filed with the Commission a registration statement on Form
S-3 (No. 333-167412), including a related prospectus or prospectuses, covering the
registration of the Offered Securities under the Act, which has become effective.
“Registration Statement” at any particular time means such registration statement in
the form then filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and all 430B Information and all 430C
Information with respect to such registration statement, that in any case has not
been superseded or modified. “Registration Statement” without reference to a time
means the Registration Statement as of the Applicable Time. For purposes of this
definition, 430B Information shall be considered to be included in the Registration
Statement as of the time specified in Rule 430B under the Act.
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For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of the
Registration Statement pursuant to Rule 430B(e) under the Act or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f) under the Act.
“430C Information” means information included in a prospectus then deemed to be a part of the
Registration Statement pursuant to Rule 430C under the Act.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means the time of the first contract of sale of the Securities.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price,
other 430B Information and other final terms of the Offered Securities and otherwise satisfies
Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its being so specified
in Schedule C to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g) under the Act.
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the
Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and
practices applicable to auditors of “issuers” (as defined in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or
approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the
NASDAQ Stock Market (“Exchange Rules”).
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“Statutory Prospectus” with reference to any particular time means the prospectus relating to
the Offered Securities that is included in the Registration Statement immediately prior to that
time, including all 430B Information and all 430C Information with respect to the Registration
Statement. For purposes of the foregoing definition, 430B Information shall be considered to be
included in the Statutory Prospectus only as of the actual time that form of prospectus (including
a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) under the Act and not
retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(ii) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) at the
Applicable Time and (D) on the Closing Date, the Registration Statement conformed
and will conform in all material respects to the requirements of the Act and the
Rules and Regulations and did not and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) (A) on its date,
(B) at the time of filing the Final Prospectus pursuant to Rule 424(b) under the Act
and (C) on the Closing Date, the Final Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations, and will not
include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The preceding sentence does not apply to statements in or omissions
from any such document based upon written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that specified in Section
8(c) hereof.
(iii) Automatic Shelf Registration Statement.
(1) Well-Known Seasoned Issuer Status. (A) At the time of initial filing
of the Registration Statement, (B) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time
the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Act) made any offer relating to the Offered
Securities in reliance on the exemption of Rule 163 under the Act, the Company was a
“well known seasoned issuer” as defined in Rule 405 under the Act, including not
having been an “ineligible issuer” as defined in Rule 405 under the Act.
(2) Effectiveness of Automatic Shelf Registration Statement. The
Registration Statement is an “automatic shelf registration statement,” as defined in
Rule 405 under the Act, that initially became effective within three years of the
date of this Agreement.
(3) Eligibility to Use Automatic Shelf Registration Form. The Company has
not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act
objecting to use of the automatic shelf registration statement form. If at any time
when Offered Securities remain unsold by the Underwriters the Company receives from
the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases
to be eligible to use the automatic shelf registration statement form, the Company
will (i) promptly notify the Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the
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proper form relating to the Offered Securities, in a form satisfactory to the Representatives, (iii)
use its reasonable best efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as reasonably practicable,
and (iv) promptly notify the Representatives of such effectiveness. The Company
will take all other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in the registration
statement that was the subject of the Rule 401(g)(2) under the Act notice or for
which the Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(4) Filing Fees. The Company has paid or shall pay the required Commission
filing fees relating to the Offered Securities within the time required by Rule
456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act.
(iv) Ineligible Issuer Status. (i) At the earliest time after the filing
of the Registration Statement that the Company or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Offered Securities and (ii) at the date of this Agreement, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405 under the Act.
(v) General Disclosure Package. As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable
Time, the preliminary prospectus supplement, dated November 11, 2010, including the
base prospectus, dated June 9, 2010 (which is the most recent Statutory Prospectus
distributed to investors generally), and the other information, if any, stated in
Schedule C to this Agreement to be included in the General Disclosure
Package, all considered together (collectively, the “General Disclosure Package”),
nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions
from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter
consists of the information specified in Section 8(c) hereof.
(vi) Issuer Free Writing Prospectuses. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the completion
of the public offer and sale of the Offered Securities or until any earlier date
that the Company notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in the Registration
Statement. If at any time following the issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately following such event
or development, would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will promptly notify the
Representatives and (ii) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate
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or correct such conflict, untrue statement or omission. This provision does not apply to statements
in or omissions from any such document based upon written information furnished to
the Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information is that
specified in Section 8(c) hereof.
(vii) Good Standing of the Company. The Company has been duly incorporated
and is existing and in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the General Disclosure Package; and, except as would not, individually
or in the aggregate, reasonably be expected to result in a material adverse change
in the condition (financial or otherwise), results of operations or business of the
Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”), the
Company is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(viii) Subsidiaries of Company. Each subsidiary of the Company has been
duly incorporated and is existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with power and authority
(corporate and other) to own its properties and conduct its business as described in
the General Disclosure Package; and, except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, each
subsidiary of the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and, except under
the credit facilities of the Company described in the General Disclosure Package,
the capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(ix) Offered Securities; Capital Stock of the Company. The Offered
Securities and all other outstanding shares of capital stock of the Company have
been duly authorized; the authorized equity capitalization of the Company is as set
forth in the General Disclosure Package; all outstanding shares of capital stock of
the Company, including the Offered Securities, are validly issued, fully paid and
nonassessable, conform to the information in the General Disclosure Package and to
the description of such Offered Securities contained in the Final Prospectus; the
stockholders of the Company have no preemptive rights with respect to the
Securities; and none of the outstanding shares of capital stock of the Company have
been issued in violation of any preemptive or similar rights of any security holder.
Except (x) as disclosed in the General Disclosure Package and (y) with respect to
the Company’s benefit plans, there are no outstanding (i) securities or obligations
of the Company convertible into or exchangeable for any capital stock of the
Company, (ii) warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable securities or
obligations or (iii) obligations of the Company to issue or sell any shares of
capital stock, any such convertible or exchangeable securities or obligations, or
any such warrants, rights or options.
(x) No Finder’s Fee. Except as disclosed in the General Disclosure
Package, there are no contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other like payment with
respect to this offering.
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(xi) Registration Rights. Except as disclosed in the General Disclosure
Package, there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to file a
registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Act
(collectively, “registration rights”).
(xii) Listing. The Offered Securities have been approved for listing on
the NASDAQ Stock Market.
(xiii) Absence of Further Requirements. No consent, approval,
authorization, or order of, or filing (other than Current Reports on Form 8-K and
prospectus supplements relating to the Offered Securities required to be filed with
the Commission) or registration with, any person (including any governmental agency
or body or any court) is required in connection with the execution and delivery of
this Agreement by the Company or the consummation by the Company of the transactions
contemplated by this Agreement, except (i) as have been obtained or (ii) as may be
required under state securities laws.
(xiv) Title to Property. Except as disclosed in the General Disclosure
Package and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (i) the Company and its
subsidiaries each have good and marketable title to their respective real properties
and personal properties reflected as owned by them in the financial statements
referred to in Section 2(a)(xxvii) or described in the General Disclosure Package,
in each case free from liens, charges, encumbrances and defects that would affect
the value thereof or interfere with the use made or to be made thereof by them, and
(ii) each lease pursuant to which the Company and its subsidiaries holds properties
described in the General Disclosure Package is in full force and effect.
(xv) Absence of Defaults and Conflicts Resulting from Transaction. The
execution, delivery and performance by the Company of this Agreement and the sale of
the Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) any statute, rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their properties, or (iii) any agreement or
instrument to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound, or to which any of the properties
of the Company or any of its subsidiaries is subject, except in the case of clauses
(ii) and (iii) for those which would not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Absence of Existing Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its respective charter or by-laws or in
default (or with the giving of notice or lapse of time would be in default) under
any existing obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to which
any of them is a party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
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(xvii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries (i) possess, and are in compliance with the terms of, all certificates,
authorizations, franchises, licenses and permits (“Licenses”) necessary or material
to the conduct of the business now conducted or proposed in the General Disclosure
Package to be conducted by them, and (ii) have not received any notice of
proceedings relating to the revocation or modification of any Licenses, except in
either case as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(xix) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent that could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(xx) Possession of Intellectual Property. Except as described in the
General Disclosure Package, the Company and its subsidiaries own or possess a valid
right to use (in either case, free of any liens, charges and encumbrances) or can
acquire on reasonable terms sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology, know-how and other intellectual property and similar rights, including
registrations and applications for registration thereof (collectively, “Intellectual
Property Rights”) necessary or material to the conduct of the business now conducted
or proposed in the General Disclosure Package to be conducted by them, and the
expected expiration of any such Intellectual Property Rights would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in the General Disclosure Package (i) there are no rights of
third parties to own or use any of the Intellectual Property Rights owned by the
Company or its subsidiaries; (ii) there is no infringement, misappropriation,
breach, default or other violation, or the occurrence of any event that with notice
or the passage of time would constitute any of the foregoing, by any third parties
of any of the Intellectual Property Rights of the Company or its subsidiaries, and,
to the Company’s knowledge, the Intellectual Property Rights of the Company and each
of its subsidiaries are valid and enforceable; (iii) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the rights of the Company or any of its subsidiaries in or to, or the
violation of their Intellectual Property Rights; (iv) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the validity, enforceability or scope of any such Intellectual Property
Rights of the Company or its subsidiaries; (v) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others
that the Company or any of its subsidiaries infringes, misappropriates or otherwise
violates or conflicts with any Intellectual Property Rights or other proprietary
rights of others; (vi) none of the Intellectual Property Rights used by the Company
or its subsidiaries in their businesses has been obtained or is being used by the
Company or its subsidiaries in violation of any contractual obligation binding on
the Company or any of its subsidiaries in violation of the rights of any persons;
and (vii) the Company and its subsidiaries have taken reasonable measures to protect
the confidentiality of trade secrets and other confidential and proprietary
information, and, to the knowledge of the Company, there has not been any disclosure
of any trade secrets or other confidential and proprietary information that has
resulted, or is likely to result, in the loss of trade secret or other rights in and
to such information; except in each case covered by clauses (i) — (vii) such as
would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
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(xxi) Environmental Laws. Except as disclosed in the General Disclosure
Package, neither the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances (collectively,
“environmental laws”), owns or operates any real property contaminated with any
substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and the Company is not aware of any pending investigation
which might lead to such a claim.
(xxii) Accurate Disclosure. The statements in the General Disclosure
Package and the Final Prospectus under the headings “Risk Factors—Risks Related to
Our Common Stock— Coniston Inc. may be liable for significant potential contingent
tax liabilities arising out of the Coniston Transactions and certain related
transactions, or out of prior activities of Coniston Inc. unrelated to those
transactions,” “Description of our Capital Stock” and “Certain U.S. Federal Tax
Consequences for Non-U.S. Holders,” and in the Company’s Annual Report on Form 10-K
for the fiscal year ended May 31, 2010 under the caption “Risk Factors—Risks
Related to Our Industry—We are subject to a number of existing laws, regulations
and industry initiatives, non-compliance with certain of which could materially
affect our operations or otherwise adversely affect our business, financial
condition and results of operations, as we are susceptible to a changing regulatory
environment,” insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings and present the information
required to be shown.
(xxiii) Absence of Manipulation. The Company has not taken, directly or
indirectly, any action that is designed to or that has constituted or that would
reasonably be expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Offered Securities.
(xxiv) Statistical and Market-Related Data. Any third party statistical
and market-related data included or incorporated by reference in a Registration
Statement, a Statutory Prospectus or the General Disclosure Package are based on or
derived from sources that the Company believes to be reliable and accurate.
(xxv) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except
as set forth in the General Disclosure Package, the Company, its subsidiaries and
the Company’s Board of Directors (the “Board”) are in compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇
and all applicable Exchange Rules. The Company and its subsidiaries maintain a
system of internal controls, including, but not limited to, disclosure controls and
procedures, internal controls over accounting matters and financial reporting, an
internal audit function and legal and regulatory compliance controls (the “Internal
Controls”) that complies with the Securities Laws and are sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with U.S.
Generally Accepted Accounting Principles and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or
specific authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Internal Controls are overseen by the Audit
Committee of the Board in accordance with Exchange Rules. Since the date of the
latest audited financial statements
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of the Company included in the General
Disclosure Package, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(xxvi) Litigation. Except as disclosed in the General Disclosure Package,
there are no pending actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or foreign) to
which the Company or any of its subsidiaries is a party, or which concerns the
Company or any of its subsidiaries or any of their respective properties, that would
individually or in the aggregate reasonably be expected to result in a Material
Adverse Effect, or would materially and adversely affect the ability of the Company
or the Selling Stockholders to perform their obligations under this Agreement, or
which are otherwise material in the context of the sale of the Offered Securities;
and no such actions, suits or proceedings (including any inquiries or investigations
by any court or governmental agency or body, domestic or foreign) are, to the
Company’s knowledge, threatened.
(xxvii) Financial Statements. The financial statements included in the
Registration Statement and the General Disclosure Package present fairly the
financial position of the Company and its consolidated subsidiaries and Eclipsys
Corporation, a Delaware corporation (“Eclipsys”) and its consolidated subsidiaries
as of the dates shown and their respective results of operations and cash flows for
the periods shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied on a
consistent basis; and the schedules included in the Registration Statement present
fairly the information required to be stated therein; the assumptions used in
preparing the pro forma financial statements included in the Registration Statement
and the General Disclosure Package provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of
those adjustments to the corresponding historical financial statement amounts; the
summary and selected financial and statistical data included in the Registration
Statement, the General Disclosure Package and the Final Prospectus presents fairly
the information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company; the Company does not have any material liabilities or obligations, direct
or contingent (including any off-balance sheet obligations or any “variable interest
entities” within the meaning of Financial Accounting Standards Board Interpretation
No. 46), not disclosed in the Registration Statement, the General Disclosure Package
and the Final Prospectus; and there are no financial statements that are required to
be included in the Registration Statement, the General Disclosure Package or the
Final Prospectus that are not included as required.
(xxviii) No Material Adverse Change in Business. Except as disclosed in
the General Disclosure Package, since the end of the period covered by the
respective latest audited financial statements included in the General Disclosure
Package (i) there has been no change in the condition (financial or otherwise),
results of operations or business of the Company and its subsidiaries taken as a
whole that is material and adverse, (ii) except as disclosed in or contemplated by
the General Disclosure Package, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock and
(iii) except as disclosed in or contemplated by the General Disclosure Package,
there has been no material adverse change in the capital stock, short-term
indebtedness, long-term indebtedness, net current assets or net assets of the
Company and its subsidiaries.
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(xxix) Investment Company Act. The Company is not and, after giving effect
to the offering and sale of the Offered Securities as described in the General
Disclosure Package, will not be an “investment company” as defined in the Investment
Company Act of 1940 (the “Investment Company Act”).
(xxx) Taxes. Except as would not reasonably be expected to result in a
Material Adverse Effect and other than as set forth in the General Disclosure
Package, the Company and
each of its subsidiaries have filed all Federal, state, local and foreign
income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and have paid all taxes due thereon. Except as set
forth in the General Disclosure Package, (i) no tax deficiency has been determined
adversely to the Company or any of its subsidiaries and (ii) the Company does not
have any knowledge of any tax deficiencies, that, in the case of clauses (i) and
(ii), would, in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(xxxi) Transfer Taxes. There are no transfer taxes or other similar fees
or charges under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of this
Agreement.
(xxxii) Compliance Under Federal Healthcare Programs. Neither the Company
nor any of its subsidiaries nor any other person who has a direct or indirect
ownership or control interest in the Company or any of its subsidiaries or who is an
officer, director, agent or managing employee of the Company or any of its
subsidiaries (i) has engaged in any activities which are prohibited, or are cause
for criminal or civil penalties and/or mandatory or permissive exclusion from
Medicare or Medicaid, under Section 1320a-7, 1320a-7a, 1320a-7b, or 1395nn of Title
42 of the United States Code, the Federal TRICARE statute, the Federal False Claims
Act (31 U.S.C. §3729-3733), or the regulations promulgated pursuant to such statutes
or regulations or corresponding state or local statutes; (ii) has had a civil
monetary penalty assessed against it under 42 U.S.C. §1320a-7(a); (iii) is currently
excluded from participation under the Medicare program or a Federal Health Care
Program (as that term is defined in 42 U.S.C. §1320a—7b(f)); or (iv) has been
convicted (as that term is defined in 42 C.F.R. §1001.2) of any of the categories of
offenses described in 42 U.S.C. 1320a—7(a) and 42 U.S.C. 1320a—7b(b)(1), (2) and
(3), except in the case of clauses (i) and (ii), for such activities or penalties as
would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(xxxiii) HIPAA Compliance. Except as set forth in the General Disclosure
Package, the Company and its subsidiaries are and have been in compliance with all
applicable provisions of the Health Insurance Portability and Accountability Act of
1996, and all other applicable laws and its own internal procedures pertaining to
privacy, data protection and the collection and use of personal information, except
as would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect.
(xxxiv) No Prohibition on Dividends. No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the Company,
or from transferring any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, except under the credit facilities of the
Company described in the General Disclosure Package.
10
(xxxv) Insurance. The Company and its subsidiaries are insured by insurers with
appropriately rated claims paying abilities against such losses and risks and in
such amounts as are prudent and customary for the businesses in which they are
engaged, and all material policies of insurance insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect.
(xxxvi) No Unlawful Payments. Neither the Company nor any of its subsidiaries
nor any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries has (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices Act of
1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(xxxvii) Compliance with Money Laundering Laws. The operations of the Company
and its subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the applicable money
laundering statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(xxxviii) Compliance with OFAC. None of the Company, any of its subsidiaries or
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not, directly or indirectly, use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) The Selling Stockholders jointly and severally represent and warrant to, and agree
with, the several Underwriters that:
(i) Title to Securities. Each Selling Stockholder has valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New York
Uniform Commercial Code (the “UCC”) free and clear of all security interests,
claims, liens, equities or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement and to
sell, transfer and deliver the Offered Securities to be sold by such Selling
Stockholder or a security entitlement in respect of such Offered Securities.
(ii) DTC. Upon payment for the Offered Securities to be sold by such Selling
Stockholder pursuant to this Agreement, delivery of such Offered Securities, as
directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be
designated by the Depository Trust Company (“DTC”), registration of such Offered
Securities in the name of Cede or such other nominee and the crediting of such
Offered Securities on the books of DTC to
11
securities accounts of the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of
the UCC to such Offered Securities), (A) DTC shall be a “protected purchaser” of
such Offered Securities within the meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement
in respect of such Offered Securities and (C) no action based on any “adverse
claim”, within the meaning of Section 8-102 of the UCC, to such Offered Securities
may be successfully asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, such Selling Stockholder has
assumed that when such payment, delivery and crediting occurs, (x) such Offered
Securities will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company’s share registry in accordance with
its charter, bylaws and applicable law, (y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate
entries to the accounts of the several Underwriters on the records of DTC will have
been made pursuant to the UCC.
(iii) Absence of Further Requirements. No consent, approval, authorization or
order of, or filing with, any person (including any stockholder (including
shareholders of the Selling Stockholders’ direct or indirect parent), governmental
agency or body or any court) is required to be obtained or made by any Selling
Stockholder for the consummation of the transactions contemplated by this Agreement
in connection with the offering and sale of the Offered Securities sold by the
Selling Stockholders except (i) such as have been obtained and made under the Act
and (ii) such as may be required under state securities laws.
(iv) Absence of Defaults and Conflicts Resulting from Transaction. The
execution, delivery and performance of this Agreement and the consummation of the
transactions herein contemplated will not contravene (i) the memorandum or articles
of association of either Selling Stockholder, (ii) except as would not materially
and adversely affect the ability of either Selling Stockholder to perform its
obligations under this Agreement, any provision of any statute, any rule or
regulation in the United Kingdom or the United States or order of any governmental
agency or body or any court in the United Kingdom or the United States having
jurisdiction over any Selling Stockholder, (iii) any agreement or instrument binding
upon any Selling Stockholder that is material to such Selling Stockholder or (iv)
the Framework Agreement by and between the Company and Misys, dated as of June 9,
2010, as amended on July 26, 2010 (as in existence on the date hereof, the
“Framework Agreement”).
(v) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) at the
Applicable Time and (D) on the Closing Date, the Registration Statement did not and
will not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) (A) on its date, (B) at the time of filing the Final
Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus
did not and will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which they
were made; and (iii) at the Applicable Time, the General Disclosure Package did not
include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made. This
Section 2(b)(v) shall only apply to Selling Stockholder Information (as defined
herein).
12
(vi) No Undisclosed Material Information. The sale of the Offered Securities
by such Selling Stockholder under this Agreement is not the result of any material
information relating to the Company that is not set forth in the General Disclosure
Package.
(vii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by each Selling Stockholder, and no vote of the shareholders
of either Selling Stockholder or of Misys is required prior to either Selling
Stockholder’s execution of this Agreement or the consummation of the transactions
contemplated hereby.
(viii) No Finder’s Fee. Except as disclosed in the General Disclosure Package
or otherwise paid in connection with the transactions described in the second
paragraph of this Agreement, there are no contracts, agreements or understandings
between such Selling Stockholder and any person that would give rise to a valid
claim against such Selling Stockholder or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with this offering.
(ix) Absence of Manipulation. Such Selling Stockholder has not taken, directly
or indirectly, any action that is designed to or that has constituted or that would
reasonably be expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Offered Securities.
(x) Fair Summaries of Agreements. The statements summarizing the terms of (a)
Misys’ expected ownership percentage upon completion of the transactions described
in this Agreement; (b) the Transition Services Agreement (as defined in the
Statutory Prospectus) under the caption “Risk Factors —Risks Related to Our
Business —We currently rely on Misys for the provision of certain corporate
services, but going forward will have to rely on our own resources and personnel to
operate the business” in the Statutory Prospectus (other than the last sentence of
such risk factor); and (c) the License Agreement, the Bank Guarantees, the
Registration Rights Agreement, the Transition Services Agreement and the Amended and
Restated Relationship Agreement (each as defined in the Statutory Prospectus) under
the caption “Selling Stockholders” in the Statutory Prospectus, are accurate and
fair summaries of the relevant terms of such agreements.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Selling
Stockholders agree to sell to the several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Selling Stockholders that number of Offered
Securities (rounded up or down, as determined by Barclays Capital Inc. in its discretion, in order
to avoid fractions) obtained by multiplying the number of Offered Securities set forth opposite the
name of such Selling Stockholder in Schedule A hereto by a fraction the numerator of which
is the number of Offered Securities set forth opposite the name of such Underwriter in Schedule
B hereto and the denominator of which is the total number of Offered Securities, at a purchase
price equal to $17.85 per share, such shares allocated amongst the Underwriters in accordance with
their respective purchases. The Selling Stockholders will deliver the Offered Securities to or as
instructed by Barclays Capital Inc. for the accounts of the several Underwriters in a form
reasonably acceptable to Barclays Capital Inc. against payment of the purchase price by the
Underwriters in Federal (same day) funds by wire transfer to the bank account(s) previously
designated by Misys in writing to the Underwriters or their counsel at 10:00 A.M., New York time,
on November 17, 2010, or at such other time not later than seven full business days thereafter as
Barclays Capital Inc. and the Company and Misys shall determine, such time being herein referred to
as the “Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if
later than the otherwise applicable settlement date) shall be the settlement date for payment of
funds and delivery of securities for all the Offered Securities sold pursuant to the offering.
Evidence of the issuance of the
13
Offered Securities so to be delivered will be provided to Skadden, Arps, Slates, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP at or prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The Company agrees with the
several Underwriters and the Selling Stockholders that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)
under the Act within the applicable time period specified therein. The Company has complied
and will comply with Rule 433 under the Act.
(b) Filing of Amendments; Response to Commission Requests. At any time when a
prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 under
the Act would be) required to be delivered under the Act by any Underwriter or dealer, the
Company will promptly advise the Representatives of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus at any time and will offer the
Representatives a reasonable opportunity to comment on any such amendment or supplement.
The Company will also advise the Representatives promptly of (i) the filing of any such
amendment or supplement, (ii) any request by the Commission or its staff for any amendment
to the Registration Statement, for any supplement to any Statutory Prospectus or for any
additional information, (iii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or the threatening of any proceeding
for that purpose, and (iv) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 under the Act
would be) required to be delivered under the Act by any Underwriter or dealer, any event
occurs as a result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission and
furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon
request of the Representatives, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the Representatives’
consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement
and satisfying the provisions of Section 11(a) of the Act and Rule 158 under the Act.
14
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives copies
of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final
Prospectus and all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representatives reasonably request. The Company
will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required for the
distribution; provided that in no event shall the Company be obligated to (i) qualify to do
business in any jurisdiction where it is not now so qualified, (ii) take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Offered Securities, in any jurisdiction where it is not now so
subject or (iii) subject itself to taxation in any jurisdiction in which it would not
otherwise be subject.
(g) Reporting Requirements. During the period of three years hereafter, the Company
will furnish to the Representatives, to the extent not available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval system or its successor (“▇▇▇▇▇”), as soon
as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year and, as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders.
(h) Payment of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including but not limited to any filing fees and
other expenses incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and the preparation
and printing of memoranda relating thereto, costs and expenses related to the review by the
Financial Industry Regulatory Authority, Inc. of the Offered Securities, costs and expenses
relating to investor presentations or any “road show” in connection with the offering and
sale of the Offered Securities including, without limitation, any travel expenses of the
Company’s officers and employees and any other expenses of the Company including the
chartering of airplanes, fees and expenses incident to listing the Offered Securities on the
NASDAQ Stock Market and other national and foreign exchanges, fees and expenses in
connection with the registration of the Offered Securities under the Exchange Act, expenses
incurred in preparing, printing and distributing preliminary prospectuses and the Final
Prospectus (including any amendments and supplements thereto) to the Underwriters and for
expenses incurred for preparing, printing and distributing any Issuer Free Writing
Prospectuses to investors or prospective investors; provided, however, except as set forth
in this Agreement, the Underwriters shall pay their own costs and expenses, including the
fees of their counsel. Notwithstanding the foregoing, the Selling Stockholders will pay any
transfer taxes on the sale by the Selling Stockholders of the Offered Securities to the
Underwriters.
(i) Absence of Manipulation. The Company and the Selling Stockholders will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Offered Securities.
(j) Restriction on Sale of Securities by the Company. For the period specified below
(the “Company Lock-Up Period”), the Company will not, directly or indirectly, take any of
the following actions with respect to its Securities or any securities convertible into or
exchangeable or exercisable for any of its Securities (“Company Lock-Up Securities”): (i)
offer, sell, issue, contract to sell, pledge or otherwise dispose of Company Lock-Up
Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any
option, right or warrant to purchase Company Lock-Up Securities, (iii) enter into any
15
swap, hedge or any other agreement that transfers, in whole or in part, the economic
consequences of ownership of Company Lock-Up Securities, (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position in Company Lock-Up
Securities within the meaning of Section 16 of the Exchange Act or (v) file with the
Commission a registration statement under the Act relating to Company Lock-Up Securities, or
publicly disclose the intention to take any such action, without the prior written consent
of the Representatives; provided, that the foregoing shall not apply to (A) the issuance of
restricted stock units and performance-based awards under the Company’s equity compensation
plans and incentive retention plans; (B) the issuance of Securities pursuant to the vesting
or exercise of equity awards, restricted stock units or performance based awards, including
such awards issued as described in clause (A); and (C) the filing of any registration
statement on Form S-8 or any successor forms thereto, or relating solely to any of the
Company’s employee benefit plans. The Company Lock-Up Period will commence on the date
hereof and continue for 45 days after the date hereof or such earlier date that the
Representatives consent to in writing.
(k) Restriction on Sale of Securities by Selling Stockholders. For the period
specified below (the “Selling Stockholders Lock-Up Period”), each Selling Stockholder will
not, directly or indirectly, take any of the following actions with respect to Securities of
the Company or any securities convertible into or exchangeable or exercisable for any
Securities (“Selling Stockholders Lock-Up Securities”): (i) offer, sell, issue, contract to
sell, pledge or otherwise dispose of Selling Stockholders Lock-Up Securities, (ii) offer,
sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to
purchase Selling Stockholders Lock-Up Securities, (iii) enter into any swap, hedge or any
other agreement that transfers, in whole or in part, the economic consequences of ownership
of Selling Stockholders Lock-Up Securities, (iv) establish or increase a put equivalent
position or liquidate or decrease a call equivalent position in Selling Stockholders Lock-Up
Securities within the meaning of Section 16 of the Exchange Act or (v) publicly disclose the
intention to take any such action during the Selling Stockholders Lock-Up Period (except as
required by law), without the prior written consent of the Representatives; provided, that
the foregoing shall not prevent Misys, during the Selling Stockholder Lock-Up Period, from
disclosing its intention, and seeking shareholder approval from its shareholders, to dispose
of additional Securities immediately following the expiration of the Selling Stockholder
Lock-Up Period. The Selling Stockholders Lock-Up Period will commence on the date hereof
and continue for 45 days after the date hereof or such earlier date that the Representatives
consent to in writing.
(l) Replacement Registration Statement. If immediately prior to the Renewal Deadline
(as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters,
the Company will prior to the Renewal Deadline use its reasonable best efforts to file, if
it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Offered Securities, in a form reasonably satisfactory to the
Representatives. If the Company is no longer eligible to file an automatic shelf
registration statement, the Company will prior to the Renewal Deadline, if it has not
already done so, use its reasonable best efforts to file a new shelf registration statement
relating to the Offered Securities, in a form reasonably satisfactory to the
Representatives, and will use its reasonable best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the public offering and sale
of the Offered Securities to continue as contemplated in the expired registration statement
relating to the Offered Securities. References herein to the Registration Statement shall
include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be. “Renewal Deadline” means the third anniversary of the
initial effective time of the Registration Statement.
(m) W-8BEN. Each Selling Stockholder will deliver to the Representatives a properly
completed and executed United States Internal Revenue Service Form W-8BEN (or other
applicable form or statement in lieu thereof).
16
6. Free Writing Prospectuses. Except with respect to the free writing prospectus set forth on
Schedule C(3), the Company and the Selling Stockholders represent and agree that, unless they
obtain the prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Offered Securities that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405 under the Act, required to be filed with the Commission. The free writing
prospectuses set forth on Schedule C(3) and any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rules 164 and 433 under the Act
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to
the accuracy of the representations and warranties of the Company and the Selling Stockholders
herein (as though made on the Closing Date) in all material respects, provided that if any
representation and warranty includes a materiality qualification (including the words “Material
Adverse Effect,” “material,” “in all material respects” and like words) then such representation
and warranty shall be true and correct in all respects; to the accuracy of the statements of
Company officers made pursuant to the provisions hereof; to the performance by the Company and the
Selling Stockholders of their obligations hereunder; and to the following additional conditions
precedent:
(a) Accountants’ Comfort Letters. The Representatives shall have received (i) a letter
with respect to the Company dated the date hereof and the Closing Date, of
PricewaterhouseCoopers LLP confirming that they are a registered public accounting firm and
independent public accountants within the meaning of the Securities Laws and substantially
in the form of Schedule D-1 hereto (except that the specified date referred to in
Schedule D-1 hereto shall be a date no more than three days prior to the Closing
Date), and (ii) a letter with respect to Eclipsys dated the date hereof and the Closing
Date, of PricewaterhouseCoopers LLP confirming that they are a registered public accounting
firm and independent public accountants within the meaning of the Securities Laws and
substantially in the form of Schedule D-2 hereto (except that the specified date
referred to in Schedule D-2 hereto shall be a date no more than three days prior to
the Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of any Selling Stockholder, the Company or any Underwriter, threatened by the
Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations or business of the Company and its subsidiaries taken as a whole, which, in the
judgment of the Representatives, is material and adverse and makes it impractical or
inadvisable to market the Offered Securities; (ii) any downgrading in the rating assigned to
the Company or the debt securities or preferred stock, if any, of the Company by any
nationally recognized statistical rating organization, or any public announcement that any
such organization has under surveillance or review, with possible negative implications, any
such rating assigned to the Company or the debt securities or preferred stock, if any, of
the Company or any announcement that the Company has been placed on negative outlook; (iii)
any change in either U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls the effect of which is such as to make it, in
the judgment of the Representatives, impractical to market or to enforce contracts for
17
the sale of the Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any suspension or material limitation of trading in
securities generally on the New York Stock Exchange or the NASDAQ Stock Market, or any
setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the over-the-counter market;
(vi) any banking moratorium declared by any U.S. Federal or New York authorities; (vii) any
major disruption of settlements of securities, payment, or clearance services in the United
States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the Representatives, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as
to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representatives shall have received an
opinion, dated the Closing Date, of Sidley Austin LLP, counsel for the Company, in the form
attached hereto as Schedule F.
(e) Opinion of Corporate Counsel of the Company. The Representatives shall have
received an opinion, dated the Closing Date, of the corporate counsel of the Company, in the
form attached hereto as Schedule G.
(f) Opinion of Counsel for Selling Stockholders. The Representatives shall have
received opinions, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Selling
Stockholders in the United States and in the United Kingdom, respectively, in the form
attached hereto as Schedules H-1 and H-2.
(g) Opinion of Counsel for Underwriters. The Representatives shall have received from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters as the Representatives may
require, and the Selling Stockholders and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon such matters.
(h) Officers’ Certificate of Company. The Representatives shall have received a
certificate, dated the Closing Date, of the chief executive officer and chief financial
officer of the Company in which such officers shall state that: (i) the representations and
warranties of the Company in this Agreement are true and correct as of the Closing Date in
all material respects, provided that if any representation and warranty includes a
materiality qualification (including the words “Material Adverse Effect,” “material,” “in
all material respects” and like words) then such representation and warranty shall be true
and correct in all respects; the Company has complied with all agreements required on its
part to be performed hereunder at or prior to the Closing Date and satisfied all conditions
on its part required to be satisfied hereunder at or prior to the Closing Date; (ii) no stop
order suspending the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of their knowledge and
after reasonable investigation, are contemplated or threatened by the Commission; and (iii)
subsequent to the date of the most recent financial statements in the General Disclosure
Package, there has been no material adverse change in the condition (financial or
otherwise), results of operations or business of the Company and its subsidiaries taken as a
whole, except as set forth in the General Disclosure Package or as described in such
certificate.
(i) Director’s Certificates of Selling Stockholders. The Representatives shall have
received a certificate, dated the Closing Date, of a director of each of the Selling
Stockholders in which such director shall state that: (i) the representations and warranties
of the respective Selling Stockholder in this
18
Agreement are true and correct in all material respects, provided that if any
representation and warranty includes a materiality qualification (including the words
“Material Adverse Effect,” “material,” “in all material respects” and like words) then such
representation and warranty shall be true and correct in all respects; and (ii) the
respective Selling Stockholder has complied with all agreements required on its part to be
performed hereunder at or prior to the Closing Date and satisfied all conditions required on
its part to be satisfied hereunder at or prior to the Closing Date.
(j) Chief Financial Officer’s Certificate. The Representatives shall have received on
and as of the Closing Date a certificate of the chief financial officer of the Company (i)
confirming that the chief financial officer is familiar with the books and records and
internal accounting practices, policies, procedures and controls of the Company and has had
responsibility for accounting matters with respect to the Company, (ii) confirming that the
chief financial officer has reviewed the identified information, which is included in the
General Disclosure Package and (iii) attesting to the accuracy of the identified
information.
The Selling Stockholders and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect
of a Closing Date or otherwise.
8. Indemnification and Contribution.
(a) Indemnification of Underwriters by the Company. The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors, officers, employees,
agents, affiliates and each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act (each, a “Company Indemnified
Party”), against any and all losses, claims, damages or liabilities, joint or several, to
which such Company Indemnified Party may become subject, under the Act, the Exchange Act,
other Federal or state statutory law or regulation or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in any
part of the Registration Statement at any time, any Statutory Prospectus as of any time, the
Final Prospectus, any Issuer Free Writing Prospectus or any other materials reviewed and
consented to by the Company and included on Annex I hereto, or arise out of or are based
upon the omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Company
Indemnified Party for any legal or other expenses reasonably incurred by such Company
Indemnified Party in connection with investigating or defending against any loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Company Indemnified Party is a party thereto), whether threatened or commenced, and
in connection with the enforcement of this provision with respect to any of the above as
such expenses are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information specified in subsection (c) below.
(b) Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders,
jointly and severally, will indemnify and hold harmless each Underwriter, its partners,
members, directors, officers, employees, agents, affiliates and each person, if any, who
controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a “Selling
Stockholders
19
Indemnified Party”), against any and all losses, claims, damages or
liabilities, joint or several, to which such Selling Stockholders Indemnified Party may
become subject, under the Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by Misys specifically for use
therein, which information consists of the disclosure identified in Schedule E
hereto (the “Selling Stockholder Information”), and will reimburse each Selling Stockholders
Indemnified Party for any legal or other expenses reasonably incurred by such Selling
Stockholders Indemnified Party in connection with investigating or defending against any
loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever
(whether or not such Selling Stockholders Indemnified Party is a party thereto), whether
threatened or commenced, and in connection with the enforcement of this provision with
respect to the above as such expenses are incurred; provided, however, that the Selling
Stockholders will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information specified in
subsection (c) below. The liability of the Selling Stockholders under the indemnity
agreement contained in this subsection (c) shall be limited to an amount equal to the
aggregate price paid to the Selling Stockholders pursuant to Section 3 of this Agreement.
(c) Indemnification of Company and Selling Stockholders. Each Underwriter will
severally and not jointly indemnify and hold harmless the Company, each of its directors and
each of its officers who signs a Registration Statement, the Selling Stockholders, Misys and
each person, if any, who controls each of them within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and each Selling Stockholder (each, an “Underwriter
Indemnified Party”), against any losses, claims, damages or liabilities to which such
Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other
Federal or state statutory law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in any part of
the Registration Statement at any time, any Statutory Prospectus as of any time, the Final
Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or the alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred by such
Underwriter Indemnified Party in connection with investigating or defending against any such
loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever
(whether or not such Underwriter Indemnified Party is a party thereto), whether threatened
or commenced, based upon any such untrue statement or omission, or any such alleged untrue
statement or omission as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following information in
the Final Prospectus furnished on behalf of each Underwriter: the concession figure
appearing in the third paragraph under the caption “Underwriting” and the information
contained in the first sentence of the tenth paragraph concerning stabilizing transactions
under the caption “Underwriting.”
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified
party under this Section of notice of the commencement of any action, such indemnified party
will, if a claim in
20
respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the commencement thereof;
but the failure to notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a), (b) or (c) above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the indemnifying party shall
not relieve it from any liability that it may have to an indemnified party otherwise than
under subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such
action and (ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(e) Contribution. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c)
above, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the one hand and
the Underwriters on the other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Company, the Selling Stockholders
and the Underwriters agree that it would not be just and equitable if contribution pursuant
to this Section 8(e) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to
in this Section 8(e).
21
9. [Intentionally Omitted].
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Offered
Securities. If the purchase of the Offered Securities by the Underwriters is not consummated due to
(i) the failure to achieve the conditions precedent provided for in Sections 7(a), 7(b), 7(c)(i)
(unless the condition in 7(h) is satisfied), 7(c)(ii), 7(c)(v), 7(d), 7(e), 7(h) or 7(j), then the
Company, or (ii) the failure of the Selling Stockholders to deliver the Securities as provided for
in Section 3 or the failure to achieve the conditions precedent provided for in 7(f) or 7(i), then
the Selling Stockholders jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities, and the respective obligations of the
Company and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if
any Offered Securities have been purchased hereunder, the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives, c/o
Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Registration,
with a copy to the Director of Litigation, Office of the General Counsel; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary; or, if sent to the
Selling Stockholders, will be mailed, delivered or telegraphed and confirmed to them at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: General Counsel with a copy to ▇▇▇▇▇
& Overy LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: A. ▇▇▇▇▇ Harwich;
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several Underwriters
in connection with this financing and this Agreement, and any action under this Agreement taken by
the Representatives jointly will be binding upon all the Underwriters.
14. Research Analyst Independence. The Company and the Selling Stockholders acknowledge that
the Underwriters’ research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Company and/or the
offering that differ from the views of their respective investment banking divisions. The Company
and the Selling Stockholders hereby waive and release, to the fullest extent permitted by law, any
claims that the Company or the Selling Stockholders may have against the Underwriters with respect
to any conflict of interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or inconsistent with
the views or advice communicated to the Company or the Selling Stockholders by such Underwriters’
investment banking divisions. The Company and
the Selling Stockholders acknowledge that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
22
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
16. Absence of Fiduciary Relationship. The Company and the Selling Stockholders acknowledge
and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered Securities and that no fiduciary,
advisory or agency relationship between the Company or the Selling Stockholders, on the one
hand, and the Representatives, on the other, has been created in respect of any of the
transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether
the Representatives have advised or are advising the Company or the Selling Stockholders on
other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company and the Selling Stockholders following discussions
and arms-length negotiations with the Representatives and the Company and the Selling
Stockholders are capable of evaluating and understanding and understand and accept the
terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Selling Stockholders have
been advised that the Representatives and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company or the
Selling Stockholders and that the Representatives have no obligation to disclose such
interests and transactions to the Company or the Selling Stockholders by virtue of any
fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Selling Stockholders waive, to the fullest extent
permitted by law, any claims they may have against the Representatives for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives shall
have no liability (whether direct or indirect) to the Company or the Selling Stockholders in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on
behalf of or in right of the Company, including stockholders, employees or creditors of the
Company.
17. Applicable Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR
RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
The Company and the Selling Stockholders hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company and the Selling Stockholders irrevocably and unconditionally waive any objection to the
laying of venue of any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in Federal and state courts in the Borough of
Manhattan in The City of New York and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit or proceeding in any such court has been
brought in an inconvenient forum.
23
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, the Selling Stockholders and the several Underwriters in
accordance with its terms.
[Remainder of this page intentionally left blank]
24
| Very truly yours, Allscripts Healthcare Solutions, Inc. |
||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | President | |||
| Kapiti Limited |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
| ACT Sigmex Limited |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
25
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
confirmed and accepted as of the date first
above written.
|
Barclays Capital Inc. |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | MD | |||
Acting on behalf of themselves and as the
Representatives of the several Underwriters
Representatives of the several Underwriters
26
SCHEDULE A
| Number of | ||||
| Offered | ||||
| Securities | ||||
| Selling Stockholder | to be Sold | |||
Kapiti Limited |
190,056 | |||
ACT Sigmex Limited |
12,309,944 | |||
Total |
12,500,000 | |||
30
SCHEDULE B
| Number of | ||||
| Offered Securities | ||||
| Underwriter | to be Purchased | |||
Barclays Capital Inc. |
12,500,000 | |||
Total |
12,500,000 | |||
31
SCHEDULE C
1. General Use Free Writing Prospectuses (included in the General Disclosure Package)
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
None
2. Other Information Included in the General Disclosure Package
The following information is also included in the General Disclosure Package:
Price per share to the public
3. Permitted Free Writing Prospectuses
None
32
SCHEDULE D-1
ACCOUNTANTS’ COMFORT LETTER WITH RESPECT TO COMPANY
33
SCHEDULE D-2
ACCOUNTANTS’ COMFORT LETTER WITH RESPECT TO ECLIPSYS
34
SCHEDULE E
SELLING STOCKHOLDER INFORMATION
SELLING STOCKHOLDER INFORMATION
1. The following information set forth under the caption “Selling Stockholders” in the Final
Prospectus:
(a) the first and third sentences of the second paragraph;
(b) the number of shares of the Company’s common stock (i) beneficially owned by the Selling
Stockholders prior to the offering being made pursuant to this Agreement, (ii) being sold in such
offering and (iii) beneficially owned by the Selling Stockholders after such offering, each as set
forth in the table; and
(c) the third sentence of the first footnote and the second footnote.
35
SCHEDULE F
FORM OF OPINION OF SIDLEY AUSTIN LLP
FORM OF OPINION OF SIDLEY AUSTIN LLP
1. The Company has been duly incorporated and is a corporation validly existing and in good
standing under the laws of the State of Delaware, and is duly qualified to do business as a foreign
corporation in good standing in the State of Illinois.
2. The Company has corporate power and authority to conduct its business as described in the
Preliminary Prospectus and the Prospectus.
3. Eclipsys Corporation is a corporation validly existing and in good standing under the laws
of the Sate of Delaware.
4. Eclipsys Corporation has corporate power and authority to conduct its business as described
in the Preliminary Prospectus and the Prospectus.
5. Allscripts Healthcare, LLC is a limited liability company validly existing and in good
standing under the laws of the state of North Carolina.
6. The authorized equity capitalization of the Company is as set forth in the Preliminary
Prospectus and the Prospectus.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The Selling Stockholders’ Shares have been duly authorized by the Company and are validly
issued, fully paid and non-assessable; the Selling Stockholders’ Shares were issued pursuant to the
Framework Agreement and were not subject to any preemptive rights of any securityholder arising
under the DGCL as then in effect or the Company’s certificate of incorporation or by-laws as then
in effect.
9. No consent, approval, filing, authorization or other order of any federal regulatory body,
federal administrative agency or other federal governmental body of the United States of America or
any state regulatory body, state administrative agency or other state governmental body is required
under Applicable Laws for the execution and delivery by the Company of the Underwriting Agreement
and the performance of its obligations thereunder.
10. The execution and delivery by the Company of the Underwriting Agreement and the
performance of its obligations thereunder and the sale of the Selling Stockholders’ Shares do not
(a) violate the certificate of incorporation or by-laws of the Company, (b) to our knowledge,
result in a violation by the Company of any Applicable Laws, (c) result in a violation by the
Company of any order or decree listed in Schedule I hereto, or (d) result in any breach of, or
constitute a default under, any of the agreements or instruments listed in Schedule II hereto.
36
11. The Registration Statement has become effective under the 1933 Act; each of the
Preliminary Prospectus and the Prospectus has been filed pursuant to Rule 424(b) of the 1933 Act
Regulations within the required time period; and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending by the Commission.
12. The Registration Statement, as of the date it first became effective, the Registration
Statement (including the information in the Prospectus that was omitted from the Registration
Statement at the time it first became effective but that is deemed, pursuant to Rule 430B(f) of the
1933 Act Regulations, to be part of and included in the Registration Statement), at November 11,
2010, and the Prospectus, as of the date of the Prospectus Supplement, each appeared on its face to
be appropriately responsive in all material respects relevant to the offering of the Selling
Stockholders’ Shares to the applicable requirements of the 1933 Act and the 1933 Act Regulations
for registration statements on Form S-3 or related prospectuses, as the case may be, except in each
case that we express no opinion with respect to (A) financial statements and schedules and other
financial data included or incorporated by reference therein or omitted therefrom and (B) the
Incorporated Documents.
13. The Incorporated Documents, as of the respective dates they were filed with the
Commission, each appeared on its face to be appropriately responsive in all material respects to
the applicable requirements of the 1934 Act and the rules and regulations of the Commission
thereunder applicable thereto, except in each case that we express no opinion with respect to
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom.
14. The statements in the Preliminary Prospectus and the Prospectus under the caption
“Description of Capital Stock,” to the extent that such statements purport to describe certain
provisions of the DGCL as currently in effect or of the Company’s certificate of incorporation as
currently in effect, accurately describe such provisions in all material respects, except that we
express no opinion in this paragraph with respect to any statements regarding the number of
outstanding shares of Common Stock.
15. The statements in the Preliminary Prospectus and the Prospectus under the caption “Certain
U.S. Federal Tax Consequences for Non-U.S. Holders,” to the extent that such statements purport to
describe matters of United States federal income tax law and regulations or legal conclusions with
respect thereto, accurately describe such matters in all material respects.
16. The Company is not and, after giving effect to the offering and sale of the Selling
Stockholders’ Shares, will not be required to be registered as an “investment company” as defined
in the 1940 Act.
No facts have come to our attention that have caused us to believe that, insofar as is
relevant to the offering of the Selling Stockholders’ shares: (i) the Registration Statement, at
the time it first became effective, or the Registration Statement (including the information in the
Prospectus that was omitted from the Registration Statement at the time it first became effective
but that is deemed, pursuant to Rule 430B(f) of the 1933 Act Regulations, to be part of and
included in the Registration Statement), at November 11, 2010, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the General Disclosure Package, as of [•][a][p].m.
(New York City time) on November 11, 2010, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (iii) the Prospectus, as of the
date of the Prospectus Supplement or on the date hereof, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
except in each
37
case that we express no belief and make no statement with respect to financial statements and
schedules and other financial data included or incorporated by reference in or omitted from the
Registration Statement, the General Disclosure Package, the Prospectus or the Incorporated
Documents.
38
SCHEDULE G
FORM OF OPINION OF ALLSCRIPTS’ CORPORATE COUNSEL
FORM OF OPINION OF ALLSCRIPTS’ CORPORATE COUNSEL
1. The statements in the Company’s Annual Report on Form 10-K for the fiscal year ended May
31, 2010 under the risk factor captioned “We are subject to a number of existing laws, regulations
and industry initiatives, non-compliance with certain of which could materially adversely affect
our operations or otherwise adversely affect our business, financial condition and results of
operations, and we are susceptible to a changing regulatory environment,” to the extent such
statements purport to describe legal conclusions with respect thereto, have been reviewed by me
and, to my knowledge, accurately describe such matters in all material respects.
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SCHEDULE H-1
FORM OF OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇ LLP
AS COUNSEL FOR THE SELLING STOCKHOLDERS IN THE UNITED STATES
AS COUNSEL FOR THE SELLING STOCKHOLDERS IN THE UNITED STATES
1. The Underwriting Agreement has been duly executed and delivered by the Selling Stockholders
insofar as New York law is concerned.
2. The execution and delivery by the Selling Stockholders of the Underwriting Agreement and
the performance by the Selling Stockholders of their respective obligations thereunder and the
consummation of the transactions contemplated thereby do not and will not result in any violation
by the Selling Stockholders or Misys plc of any Applicable Laws (other than the federal securities
laws of the United States as to which we express no opinion) or contravene any of the terms or
provisions of the Material Agreements.
3. No authorization, approval or consent of, and no filing or registration with, any
governmental or regulatory authority or agency of the United States or of the State of New York is
required under Applicable Laws on the part of the Selling Stockholders of the execution, delivery
or performance by the Selling Stockholders of the Underwriting Agreement other than those required
under the Act or the Exchange Act, or the rules and regulations thereunder, and other than those
which have been obtained or effected (or as may be required under the securities or blue sky laws
of the various States of the United States, as to which we express no opinion).
4. Based solely on Section 8-502 of the New York UCC, an action based on an adverse claim to
the financial asset consisting of Securities deposited or held in the DTC Account in which an
Underwriter has a security entitlement, whether such action is framed in conversion, replevin,
constructive trust, equitable lien, or other theory, may not be successfully asserted against such
Underwriter, provided that (i) such Underwriter acquires security entitlements under Section 8-501
of the New York UCC with respect to such Securities from DTC, (ii) such Underwriter acquired such
security entitlements for value by making payment for such Securities as provided in the
Underwriting Agreement and (iii) neither the Representatives nor any Underwriter has notice of any
adverse claims with respect to such Securities.
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SCHEDULE H-2
FORM OF OPINION OF ▇▇▇▇▇ & OVERY LLP
AS COUNSEL FOR THE SELLING STOCKHOLDERS IN THE UNITED KINGDOM
AS COUNSEL FOR THE SELLING STOCKHOLDERS IN THE UNITED KINGDOM
1. Status: Each Selling Stockholder is a company duly incorporated and registered under the
laws of England which is not in liquidation.
2. Power and Authority: Each Selling Stockholder has the corporate power to execute, deliver
and perform its obligations under the Underwriting Agreement and the execution, delivery and
performance of the Underwriting Agreement by it have been duly authorised by all necessary
corporate action.
3. Due execution: The Underwriting Agreement has been duly executed and delivered by the
Selling Stockholders insofar as English law is concerned.
4. Non-conflict: The execution, delivery and performance of the Underwriting Agreement by the
Selling Stockholders and the transactions and matters contemplated thereby do not and will not
violate: (i) any existing English law applicable to companies generally; or (ii) the memorandum and
articles of association of each such Selling Stockholder.
5. Authorisations: No consents, approvals, authorisations or other requirements of
governmental, judicial or public bodies and authorities of or in England are required by Misys or
the Selling Stockholders in connection with their entry into the Underwriting Agreement or the sale
of the Securities to the Underwriters.
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ANNEX I
1. None
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