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EXHIBIT 2.2
PRIVATE PLACEMENT AND REGISTRATION RIGHTS AGREEMENT
THIS PRIVATE PLACEMENT AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of this 12th day of May, 1998, by and
among HEALTHDYNE INFORMATION ENTERPRISES, INC., a Georgia corporation ("HIE"),
and the persons and entities listed under the heading "Shareholders" on the
signature pages hereof (individually, a "Shareholder," and collectively, the
"Shareholders").
WHEREAS, HIE, HUBLink, Inc., an Ohio corporation ("HUBLink"), HIE
Acquisition Corporation, an Ohio corporation ("Newco"), and ▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇") have entered into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement") pursuant to which it is proposed that Newco
will merge with and into HUBLink (the "Merger"), and all of the shares of
HUBLink Common Stock held by persons other than HIE will be converted in the
Merger into the right to receive HIE Common Stock as determined in accordance
with the Merger Agreement; and
WHEREAS, the Merger Agreement contemplates that HIE and the
Shareholders shall enter into this Agreement concurrently with the Merger
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein and other good and valuable
consideration, the parties hereto covenant and agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the same meaning as provided in the Merger
Agreement.
For purposes of this Agreement, the following terms shall have
the respective meanings set forth below:
"Majority Shareholder" shall mean each holder of 10% or more
of the outstanding shares of HUBLink Common Stock as of the date of this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
2.1 Investment Intent. Each Shareholder severally, as to itself
only:
(a) represents that the HIE Common Stock to be received by the
Shareholder pursuant to the Merger Agreement is being acquired for its own
account for investment and not with a view to any distribution or public
offering within the meaning of the Securities Act except as contemplated by
Section 3 hereof;
(b) acknowledges that the HIE Common Stock to be received by
the Shareholder pursuant to the Merger Agreement has not been registered under
the Securities Act;
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(c) represents that it is an "accredited investor" within the
meaning of Rule 501 of the Securities Act or that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in HIE Common Stock, and that the
information provided to HIE in the questionnaire completed by such Shareholder
(the "Purchaser's Questionnaire") is true and correct;
(d) acknowledges that it received prior to executing this
Agreement the HIE disclosure documents listed in Schedule A to this Agreement;
(e) acknowledges that HIE has made available to it at a
reasonable time prior to its execution of this Agreement the opportunity to ask
questions and receive answers concerning the terms and conditions of this
Agreement and to obtain any additional information which HIE possesses or can
acquire without unreasonable effort or expense that is necessary to verify the
accuracy of the information referred to in (d) above;
(f) agrees that it will not sell or otherwise transfer any of
the HIE Common Stock except pursuant to the registered offering contemplated by
Section 3 hereof or in one or more private transactions if, in the opinion of
counsel reasonably satisfactory to HIE, such transaction or transactions are not
required to be registered under the Securities Act; and
(g) understands and acknowledges that this Agreement does not
constitute an offer to sell or a solicitation of an offer to buy or a sale of
HIE Common Stock and that no sale will occur prior to the undersigned's election
to receive and receipt of HIE Common Stock pursuant to the Merger Agreement.
2.2 Pooling of Interests Representation.
(a) Each Shareholder whose name is set forth on Schedule B to
this Agreement severally, as to itself only, represents and warrants to and
covenants with HIE that (i) the Shareholder will not sell, transfer or otherwise
dispose of any HIE Common Stock received by the Shareholder pursuant to the
Merger Agreement until such time as financial statements covering at least
thirty (30) days of the combined operations of HIE and HUBLink following the
Merger have been published by HIE.
(b) Each Shareholder whose name is not included on Schedule B
to this Agreement severally, as to itself only, hereby represents and warrants
to HIE that such Shareholder is not an officer or a director of HUBLink or the
owner of 10% or more of the outstanding HUBLink Common Stock.
2.3 Legend. Each certificate representing the HIE Common Stock
issued pursuant to the Merger Agreement shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES ACT AND
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MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM, OR IN THE ABSENCE OF
RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT IT MAY BE SOLD OR TRANSFERRED
WITHOUT SUCH REGISTRATION.
3.1 Registration by HIE. As soon as practicable after the Closing Date
but in no event later than 20 days thereafter, HIE shall file a registration
statement under the Securities Act (the "Registration Statement") with respect
to resales by the Shareholders of the HIE Common Stock issued to the
Shareholders pursuant to the Merger Agreement and shall cause such registration
to become effective as soon as practicable thereafter.
3.2 Registration Statement Form. The registration provided pursuant to
Section 3.1 shall be effected by the filing of a Registration Statement on Form
S-3 or such other form as HIE in its sole discretion determines to be available
and appropriate for the registration of resales of the HIE Common Stock by the
Shareholders, which shall provide for sales to be made on a continuous basis
pursuant to Rule 415 (or any similar rule that may be adopted by the Commission)
in accordance with the intended method or methods of disposition designated by
the Shareholders; provided, however, that not more than one underwritten
offering shall be made pursuant to such Registration Statement.
3.3 Expenses. Except as otherwise prohibited by applicable law, HIE
will pay all expenses of registration including, without limitation, fees and
disbursements of counsel for HIE, blue sky fees and expenses, and accountants'
expenses including without limitation any special audits or "comfort" letters
incident to or required by any such registration, transfer taxes, fees of
transfer agents and registrars, costs of insurance, and any fees and
disbursements of underwriters, customarily paid by issuers of securities, but
excluding underwriting discounts and commissions and fees of any counsel for the
Shareholders.
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3.4 Obligations with Respect to Registration.
(a) In connection with the registration of the HIE Common
Stock pursuant to this Agreement, HIE shall:
(i) Promptly prepare and file with the Commission
any amendments (including post-effective amendments) and
supplements to the Registration Statement and to the
prospectus included therein (the "Prospectus") as may be
necessary to keep such Registration Statement continuously
current and effective and to comply with the provisions of the
Securities Act and the rules and regulations promulgated
thereunder with respect to the disposition of all HIE Common
Stock covered by such Registration Statement for a period to
expire upon the earlier of (a) one year following the Closing
Date or (b) the date that all of the shares of HIE Common
Stock covered by the Registration Statement have been sold by
the Shareholders;
(ii) Notify the Shareholders and confirm such advice
in writing, (w) when such Registration Statement becomes
effective, (x) when the filing of any post-effective amendment
to such Registration Statement or supplement to the Prospectus
is required, when the same is filed and, in the case of a
post-effective amendment, when the same becomes effective, (y)
of any request by the Commission for any amendment of or
supplement to such Registration Statement or the Prospectus or
for additional information and (z) of the entry of any stop
order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that
purpose, and, if such stop order shall be entered, HIE shall
use its best efforts promptly to obtain the lifting thereof;
(iii) Furnish at HIE's expense to the Shareholders
(x) at a reasonable time prior to the filing thereof with the
Commission a copy of the Registration Statement in the form in
which HIE proposes to file the same; not later than one day
prior to the filing thereof, a copy of any amendment
(including any post-effective amendment) to such Registration
Statement; and promptly following the effectiveness thereof, a
conformed copy of the Registration Statement as declared
effective by the Commission and of each post-effective
amendment thereto, including financial statements and all
exhibits and reports incorporated therein by reference, and
(y) such number of copies of the preliminary, any amended
preliminary, and final Prospectus and of each post-effective
amendment or supplement thereto, as may reasonably be required
in order to facilitate the disposition of the HIE Common Stock
covered by such Registration Statement in conformity with the
requirements of the Securities Act and the rules and
regulations promulgated thereunder, but only while HIE is
required under the provisions hereof to cause the Registration
Statement to remain effective;
(iv) Use all reasonable efforts to register and
qualify the HIE Common Stock covered by the Registration
Statement under such other securities laws of
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such jurisdictions as shall be reasonably requested by the
Shareholders and do any and all other acts and things which
may be reasonably necessary or advisable to enable the
Shareholders to consummate the disposition of the HIE shares
received by the Shareholders in the Merger in such
jurisdictions; provided, however, that HIE shall not be
required in connection therewith or as a condition thereto to
qualify to transact business or to file a general consent to
service of process in any such states or jurisdictions, or to
maintain the effectiveness of any such registration or
qualification for any period during which it is not required
to maintain the effectiveness of the related Registration
Statement under the Securities Act as set forth in Section
3.4(a)(i);
(v) Promptly notify the Shareholders of the happening
of any event as a result of which the Prospectus included in
such Registration Statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein not misleading and, subject to the further
provisions of Section 3.5(b), HIE will prepare a supplement or
amendment to such Prospectus so that, as thereafter delivered
to the purchasers of such HIE shares, such Prospectus will not
contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not
misleading;
(vi) Enter into such customary agreements in form
and substance satisfactory to HIE and take such other
customary actions as may be reasonably requested in order to
expedite or facilitate the disposition of the HIE shares
covered by the Registration Statement; and
(vii) Cooperate with the Shareholders to facilitate
the timely preparation and delivery of certificates
representing the HIE shares to be sold pursuant to the
Registration Statement and not bearing any restrictive
legends, and enable such HIE shares to be in such lots and
registered in such names as the Shareholders may request at
least two (2) business days prior to any delivery of the HIE
Shares to the purchaser.
(b) HIE's obligations with respect to and compliance with this
Section 3 shall be expressly conditioned upon each Shareholder's compliance with
the following:
(A) The Shareholders shall cooperate with HIE in
connection with the preparation of the Registration Statement,
and for so long as HIE is obligated to keep the Registration
Statement effective, shall provide to HIE, in writing, for use
in the Registration Statement, all such information regarding
the Shareholders and their plan of distribution of the HIE
shares as may be necessary to enable HIE to prepare the
Registration Statement and Prospectus covering the HIE shares,
to maintain the currency and effectiveness thereof and
otherwise to comply with all applicable requirements of law in
connection therewith.
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(B) During such time as the Shareholders may be
engaged in a distribution of the HIE shares, the Shareholders
shall comply with Regulation M promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and pursuant thereto, shall, among other things: (w)
not engage in any stabilization activity in connection with
the securities of HIE in contravention of the rules comprising
Regulation M; (x) distribute the HIE shares solely in the
manner described in the Registration Statement; (y) cause to
be furnished to each broker through whom the HIE shares may be
offered, or to the offeree if an offer is not made through a
broker, such copies of the Prospectus and any amendment or
supplement thereto and documents incorporated by reference
therein as may be required by law; and (z) not bid for or
purchase any securities of HIE or attempt to induce any person
to purchase any securities of HIE other than as permitted
under the Exchange Act.
3.5 Holdback Agreements.
(a) Notwithstanding any provision of this Agreement to the
contrary, in the event HIE notifies the Majority Shareholders, in writing and no
later than ten (10) days prior to the proposed filing date, that HIE intends to
file a registration statement in connection with an underwritten offering (the
"Offering") by HIE of any of its capital stock, the Majority Shareholders shall
refrain from selling or otherwise distributing any HIE Common Stock within the
period requested in writing by the managing underwriter for such Offering, which
period shall begin no earlier than two days (subject to prior written notice
thereof) prior to the effective date of such registration statement and shall
end no later than 90 days after such effective date (the "Offering Restricted
Period"); provided, however, that the Majority Shareholders shall not be
required to refrain from selling in connection with any Offering unless (i) HIE
and all of the directors and executive officers of HIE are also required to
refrain from selling for a comparable period with respect to any shares not
registered for sale by them in such Offering pursuant to contractual
registration rights in effect on the date of this Agreement; and (ii) each of
the Majority Shareholders whose shares of HIE Common Stock are covered by the
Registration Statement shall be given the opportunity to include such HIE Common
Stock in the registration statement filed in connection with such Offering
unless the managing underwriter of the Offering in good faith determines that
the size of the Offering should be limited to a number of shares less than that
requested to be registered by HIE and the Majority Shareholders and all other
persons having contractual rights to include securities in such registration
statement ("Other Holders"), in which case the number of shares to be registered
on behalf of the Majority Shareholders shall be reduced on a proportional basis,
together with shares requested to be registered by all Other Holders, it being
understood that HIE shall have priority as to sales over the Majority
Shareholders and each Other Holder. If the Registration Statement filed pursuant
to Section 3.1 is in effect at any time during the Offering Restricted Period
and the Majority Shareholders are not permitted to include in the registration
statement filed for the Offering all shares requested by the Majority
Shareholders to be included in the Offering, HIE's obligation under Section
3.4(a) to keep such Registration Statement current and effective shall be
extended for a number of days equal to the number of days such Registration
Statement was in effect during the Offering
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Restricted Period or, if earlier, until the date on which all of the HIE Common
Stock initially covered thereby has been disposed of.
(b) Each of the Majority Shareholders agrees to use his
reasonable best efforts to give HIE prior oral notice, directed to its Chief
Executive Officer or its Chief Financial Officer, confirmed immediately in
writing by facsimile transmission, of its intention to sell any shares of HIE
Common Stock under the Registration Statement, which notice shall be given at
least two (2) days in advance of any such proposed sale; provided, however, that
no liability shall attach to the inadvertent failure of a Majority Shareholder
to give such notice to HIE. Notwithstanding anything set forth herein to the
contrary, in the event that HIE notifies the Shareholders in writing (the
"Disclosure Notice") that
(i) there exist bona fide financing,
acquisition or other plans of HIE or other matters
which would require disclosure by HIE of information,
the premature disclosure of any of which would
adversely affect or otherwise be detrimental to HIE,
or
(ii) HIE desires to amend the Registration
Statement or to supplement the Prospectus in order to
disclose material information required to be
disclosed in the Prospectus included in such
Registration Statement, as then in effect, in order
to correct an untrue statement of a material fact or
to disclose an omitted material fact that is required
to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing,
the Shareholders shall refrain from selling HIE Common Stock thereunder until
HIE notifies the Shareholders in writing that (x) the required amendment or
supplement has been filed with the Commission (which filing will be made as
promptly as practicable, subject to the provisions of Section 3.5(b)(i)), (y)
HIE notifies the Shareholders that the potentially disclosable event no longer
exists and that the Prospectus included in the Registration Statement does not
contain an untrue statement of material fact or omit to state any fact necessary
to make the statements therein not misleading; or (z) until 90 days following
the Disclosure Notice, whichever is earlier (the "Disclosure Restricted
Period"). If a Registration Statement filed pursuant to Section 3.1 is effective
at the time during the Disclosure Restricted Period, HIE's obligation under
Section 3.4(a) to keep such Registration Statement current and effective shall
be extended for a number of days equal to the number of days such Registration
Statement was in effect during the Disclosure Restricted Period, or, if earlier,
until the date on which all of the HIE Common Stock initially covered thereby
has been disposed of.
3.6 SEC Filings. HIE will use commercially reasonable efforts to timely
file all reports required to be filed by it under the Exchange Act and the rules
and regulations adopted thereunder to the extent required to enable the sale of
the HIE Common Stock pursuant to the Registration Statement filed on Form S-3 or
pursuant to Rule 144 promulgated under the Securities Act for the period
commencing on the date hereof and ending on the earlier of (i) one
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year from the Closing Date or (ii) the sale by the Shareholders of all of the
HIE Common Stock referred to in Section 3.1.
3.7 Indemnification and Contribution.
(a) By HIE. In connection with the registration under the
Securities Act of the HIE Common Stock pursuant to this Section 3, HIE shall
indemnify and hold harmless the Shareholders and each other person, if any, who
controls any of the Shareholders within the meaning of Section 15 of the
Securities Act ("controlling persons"), against any expenses, losses, claims,
damages, liabilities or costs (including without limitation court costs and
attorneys' fees), joint or several (or actions in respect thereof) ("Losses"),
to which each such indemnified party may become subject, under the Securities
Act or otherwise, but only to the extent such Losses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which such HIE Common Stock was registered under the Securities Act, in any
preliminary Prospectus (if used prior to the effective date of such Registration
Statement) or in any final Prospectus or in any post-effective amendment or
supplement thereto (if used during the period HIE is required to keep the
Registration Statement effective) (the "Disclosure Documents"), or (ii) any
omission or alleged omission to state in any of the Disclosure Documents a
material fact required to be stated therein or necessary to make the statements
made therein not misleading, or (iii) any violation of any federal or state
securities laws or rules or regulations thereunder committed by HIE in
connection with the performance of its obligations under this Section 3; and HIE
will reimburse each such indemnified party for all legal and other expenses
reasonably incurred by such party in investigating or defending against any such
claims, whether or not resulting in any liability, or in connection with any
investigation or proceeding by any governmental agency or instrumentality with
respect to any offering of securities pursuant to this Section 3; provided,
however, that HIE shall not be liable to an indemnified party or any other
Shareholder or controlling person of any other Shareholder in any such case to
the extent that any such Losses arise out of or are based upon (i) an untrue
statement or omission or alleged omission (x) made in any such Disclosure
Documents in reliance upon and in conformity with written information furnished
to HIE by such indemnified party for use therein, or (y) made in any preliminary
Prospectus if a copy of the final Prospectus was not delivered to the person
alleging any loss, claim, damage or liability for which Losses arise at or prior
to the written confirmation of the sale of such HIE Common Stock to such person
and the untrue statement or omission concerned had been corrected in such final
Prospectus and copies thereof had timely been delivered by HIE to such
indemnified party, or (z) made in any Prospectus used by such indemnified party
if a court of competent jurisdiction finally determines that at the time of such
use such indemnified party had actual knowledge of such untrue statement or
omission; or (ii) the use of any Prospectus after such time as HIE has advised
such indemnified party in writing that the filing of a post-effective amendment
or supplement thereto is required, except the Prospectus as so amended or
supplemented, or the use of any Prospectus after such time as the obligation of
HIE to keep the same current and effective has expired. In determining the
actual knowledge of an indemnified party for purposes of clause (i)(z) above,
the actual knowledge (without any requirement of due inquiry) of a controlling
person of the Shareholders who is also a director of HIE shall be imputed to the
Shareholders (and its other controlling persons).
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(b) By the Shareholders. In connection with the registration
under the Securities Act of the HIE Common Stock of the Shareholders pursuant to
this Section 3, the Shareholders receiving such HIE Common Stock shall,
severally, indemnify and hold harmless HIE, each of its directors, each of its
officers who have signed such Registration Statement and each other person, if
any, who controls HIE within the meaning of Section 15 of the Securities Act,
and each other Shareholder and each controlling person of such Shareholders
against any Losses to which such indemnified party may become subject under the
Securities Act or otherwise, but only to the extent such Losses arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any of the Disclosure Documents or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if the statement or
omission was made in reliance upon and in conformity with written information
furnished to HIE by such indemnifying party for use therein; (ii) the use by
such indemnifying party of any Prospectus after such time as HIE has advised
such indemnifying party in writing that the filing of a post-effective amendment
or supplement thereto is required, except the Prospectus as so amended or
supplemented, or after such time as the obligation of HIE to keep the
Registration Statement effective and current has expired, or (iii) any
information given or representation made by such indemnifying party in
connection with the sale of HIE Common Stock which is not contained in and not
in conformity with the Prospectus (as amended or supplemented at the time of the
giving of such information or making of such representation); and such
indemnifying party shall reimburse each such indemnified party for all legal and
other expenses reasonably incurred by such party in investigating or defending
against any such claims, whether or not resulting in any liability, or in
connection with any investigation or proceeding by any governmental agency or
instrumentality relating to any such claims with respect to any offering of
securities pursuant to this Section 3.
(c) Actions Commenced. If a third party commences any action
or proceeding against an indemnified party related to any of the matters subject
to indemnification under Section 3.7(a) or (b) hereof, such indemnified party
shall promptly give notice to the indemnifying party in writing of the
commencement thereof, but failure so to give notice shall not relieve the
indemnifying party from any liability which it may have hereunder unless the
indemnifying party is prejudiced thereby.
The indemnifying party shall be entitled to control the
defense or prosecution of such claim or demand in the name of the indemnified
party, with counsel satisfactory to the indemnified party, if it notifies the
indemnified party in writing of its intention to do so within 20 days of its
receipt of the notice from the indemnified party without prejudice, however, to
the right of the indemnified party to participate therein through counsel of its
own choosing, which participation shall be at the indemnified party's expense
unless (i) the indemnified party shall have been advised by its counsel that use
of the same counsel to represent both the indemnifying party and the indemnified
party would represent a conflict of interest (which shall be deemed to include
any case where there may be a legal defense or claim available to the
indemnified party which is different from or additional to those available to
the indemnifying party), in which case the indemnifying party shall not have the
right to direct the
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defense of such action on behalf of the indemnified party, or (ii) the
indemnifying party shall fail vigorously to defend or prosecute such claim or
demand within a reasonable time. Whether or not the indemnifying party chooses
to defend or prosecute such claim, the parties hereto shall cooperate in the
prosecution or defense of such claim and shall furnish such records, information
and testimony and attend such conferences, discovery proceedings, hearings,
trials and appeals as may be requested in connection therewith. The indemnifying
party shall not, in the defense of such claim or any litigation resulting
therefrom, consent to entry of any judgment against the indemnified party (or
settle any claim involving an admission of fault on the part of the indemnified
party), except with the consent of the indemnified party (which consent shall
not be unreasonably withheld).
(d) Contribution. If the indemnification provided for in
subsections (a) or (b) of this Section 3.7 is unavailable to or insufficient to
hold the indemnified party harmless under subsections (a) or (b) above in
respect of any Losses referred to therein for any reason other than as specified
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party on the
one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. 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 (or omitted to be supplied by) HIE or the
Shareholders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the Losses referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Limitation of Liability of Shareholders. The
indemnification obligation under Section 3.7(b), and the contribution obligation
under Section 3.7(d), of a Shareholder shall be limited to the amount of
proceeds received by such Shareholder upon the sale of HIE Common Stock under
the registration statement filed pursuant to this Section 3.
4.1 Notices. All notices and other communications required to be
given hereunder shall be in writing and shall be deemed to have been duly given
upon delivery, if delivered by hand; if given by mail, three (3) days after the
date of mailing, postage prepaid, certified or registered mail to a party hereto
at the address set forth below; if given by facsimile, upon transmission to the
number set forth below provided written confirmation is sent to the address
below; if given by overnight delivery service addressed to the address set forth
below, the business day following the day on which such notice is sent:
If to HIE:
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Healthdyne Information Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
NationsBank Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Shareholders:
To the address of each such Shareholder as set forth
in such Shareholder's Purchaser's Questionnaire, or
at such other address as shall be designated in
writing by such Shareholder.
Any party hereto may change its address for purposes of receiving notice
pursuant to this Agreement by giving notice of such new address to each other
party hereto.
4.2 Interpretation. The Sections and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. Terms used in the plural include the
singular, and vice versa, unless the context otherwise requires.
4.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Telecopy transmission of
signatures shall be deemed originals.
4.4 Miscellaneous. This Agreement, including its Schedules (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof; (ii) is not intended to and shall not
confer upon any other person any rights or remedies hereunder or otherwise with
respect to the subject matter hereof; (iii) shall not be assigned by operation
of law or otherwise; and (iv) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Georgia.
4.5 Specific Performance. The parties hereto acknowledge and agree that
the benefits to them under this Agreement are unique, that they are willing to
enter into this Agreement only upon performance by each other of all of their
obligations hereunder and that they will not have
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an adequate remedy at law if the other fails to perform any of its obligations
hereunder. Accordingly, the parties hereby agree that each shall have the right,
in addition to any other rights or remedies it may have at law or in equity, to
specific performance or equitable relief by way of injunction if the other party
fails to perform any of its obligations hereunder.
4.6 Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with the written consent
of HIE and those Shareholders holding a majority of the then outstanding shares
of HIE Common Stock which are subject to registration pursuant to the terms of
Section 3 hereof.
4.7 Diligence. Each of the parties certifies that he, she or it has
(a) received a copy of this Agreement for review and study before being asked
to execute it; (b) read this Agreement carefully; (c) had sufficient
opportunity before he, she or it executed this Agreement to ask questions about
this Agreement, to which he, she or it has received satisfactory answers to any
such questions; and (d) understands his, her or its rights and obligations
under this Agreement.
4.8 Binding Effect. The terms and provisions of this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by or against the
parties and their respective legal representatives, heirs, successors and
permitted assigns.
4.9 Severability. If any part of this Agreement or other agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect to the greatest extent permitted by law.
4.10 Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
HEALTHDYNE INFORMATION ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Executive Vice President and Chief
Financial Officer
"SHAREHOLDERS"
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and Kerrii ▇. ▇▇▇▇▇▇▇▇, Joint Tenants
with Right of Survivorship)
Signature: /s/ Kerrii ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Kerrii ▇. ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and Kerrii ▇. ▇▇▇▇▇▇▇▇, Joint Tenants
with Right of Survivorship
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇▇ ▇. Day
---------------------------------------
▇▇▇▇▇▇▇ ▇. Day
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Joint Tenants with
Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Joint Tenants with
Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ (individually and, with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Joint Tenants with
Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Joint Tenants with
Right of Survivorship)
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (AmeriTrade, Inc. Cust.
FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SEP ▇▇▇
A/C #341-028439)
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D. (Midwest
Physician Anesthesia Services, Inc.
Profit Sharing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
Directed)
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Signature: /s/ M.E. Palloto
----------------------------------------
Monaghan Reinsurance Co. Limited
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Ameritrade, Inc.
Cust. FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇
A/C #341-028439)
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Joint Tenants
with Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇▇ ▇. ▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Joint Tenants
with Right of Survivorship)
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Joint
Tenants with Right of Survivorship)
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (▇▇▇▇ ▇.▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Joint Tenants with
Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇, Joint Tenants with Right of
Survivorship)
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇, Joint Tenants with Right of
Survivorship)
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Joint Tenants with Right of Survivorship)
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Joint Tenants
with Right of Survivorship)
VOLPE, BROWN, ▇▇▇▇▇▇ & COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its: Compliance Officer
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SCHEDULE A
LIST OF DOCUMENTS RECEIVED FROM HEALTHDYNE INFORMATION ENTERPRISES, INC. FOR
REVIEW
1. Form 10-K of Healthdyne Information Enterprises, Inc. for the fiscal year
ended December 31, 1997.
2. 1997 Annual Report to Shareholders of Healthdyne Information Enterprises,
Inc.
3. Notice of Meeting and Proxy Statement for 1998 Annual Meeting of
Shareholders of Healthdyne Information Enterprises, Inc.
4. Draft of the Agreement and Plan of Merger by and among Healthdyne
Information Enterprises, Inc., HIE Acquisition Corporation, HUBLink, Inc.
and ▇▇▇▇ ▇. ▇▇▇▇▇.
5. Description of the Healthdyne Information Enterprises, Inc. Capital Stock.