VOTING AGREEMENT BY AND AMONG HEALTH SYSTEMS SOLUTIONS, INC., HSS ACQUISITION CORP. AND [STOCKHOLDER] DATED AS OF OCTOBER 13, 2008
Exhibit 99.3
BY
AND AMONG
HEALTH
SYSTEMS SOLUTIONS, INC.,
HSS
ACQUISITION CORP.
AND
[STOCKHOLDER]
DATED
AS OF OCTOBER 13, 2008
INDEX OF
DEFINED TERMS
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Page
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Agreement
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1
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Beneficial
Ownership
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1
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Beneficially
Own
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2
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Beneficially
Owned
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2
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Common
Stock
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2
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Company
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1
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Covered
Shares
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2
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Encumbrance
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2
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Existing
Shares
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1
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Grantees
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3
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Merger
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1
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Merger
Agreement
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1
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Merger
Sub
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1
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Parent
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1
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Section
2.1 Matters
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3
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Stockholder
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1
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Transfer
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2
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i
VOTING
AGREEMENT, dated as of October 13, 2008 (this “Agreement”), by and
among Health Systems Solutions, Inc., a Nevada corporation (“Parent”), HSS
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Sub”),
and [___________] (the “Stockholder”).
W
I T N E S S E T H:
WHEREAS,
concurrently with the execution of this Agreement, Parent, Merger Sub and
Emageon, Inc., a Delaware corporation (the “Company”) are
entering into an Agreement and Plan of Merger, dated as of the date hereof (as
amended, supplemented, restated or otherwise modified from time to time, the
“Merger
Agreement”) pursuant to which, among other things, Merger Sub will merge
with and into the Company (the “Merger”) and each
outstanding share of Common Stock will be converted into the right to receive
the merger consideration specified therein.
WHEREAS,
as of the date hereof, the Stockholder owns beneficially and of record the
number of shares of Common Stock set forth opposite Stockholder’s name on
Schedule I hereto (the “Existing
Shares”).
WHEREAS,
as a material inducement to Parent entering into the Merger Agreement, Parent
has required that the Stockholder agree, and the Stockholder has agreed, to
enter into this Agreement and abide by the covenants and obligations with
respect to the Covered Shares (as hereinafter defined) set forth herein and in
executing and delivering the Merger Agreement, Parent and Merger Sub are relying
on the agreements contained herein.
NOW
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE
I
GENERAL
1.1. Defined
Terms. The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto
in the Merger Agreement.
“Beneficial
Ownership” by a Person of any securities includes ownership by any Person who,
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has or shares (i) voting power which includes
the power to vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or to direct the
disposition, of such security; and shall otherwise be interpreted in accordance
with the term “beneficial ownership” as defined in Rule 13d-3 adopted by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended; provided that for purposes of determining Beneficial Ownership, a
Person shall be deemed to be the Beneficial Owner of any securities which such
Person has, at any time during the term of this Agreement, the right to acquire
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable
immediately or only after the passage of time, including the passage of time in
excess of 60 days, the satisfaction of any conditions, the occurrence of any
event or any combination of the foregoing). The terms “Beneficially Own” and
“Beneficially
Owned” shall have a correlative meaning.
“Common
Stock” means the common stock, par value $0.001 per share, of the
Company.
“Covered
Shares” means, with respect to the Stockholder, the Stockholder’s Existing
Shares, together with any shares of Common Stock or other voting capital stock
of the Company and any securities convertible into or exercisable or
exchangeable for shares of Common Stock or other voting capital stock of the
Company, in each case, that the Stockholder acquires Beneficial Ownership of on
or after the date hereof.
“Encumbrance”
means any security interest, pledge, mortgage, lien (statutory or other),
charge, option to purchase, lease or other right to acquire any interest or any
claim, restriction, covenant, title defect, hypothecation, assignment, deposit
arrangement or other encumbrance of any kind or any preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention
agreement.
“Transfer”
means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of (by merger (including by conversion into
securities or other consideration), by tendering into any tender or exchange
offer, by operation of law or otherwise), either voluntarily or involuntarily,
or to enter into any contract, option or other arrangement or understanding with
respect to the voting of or sale, transfer, assignment, pledge, encumbrance,
hypothecation or similar disposition of (by merger, by tendering into any tender
or exchange offer, by operation of law or otherwise).
ARTICLE
II
VOTING
2.1. Agreement to
Vote. The Stockholder hereby irrevocably and unconditionally
agrees that during the time this Agreement is in effect, at the Company
Stockholders Meeting and at any other meeting of the stockholders of the
Company, however called, including any adjournment or postponement thereof, or
in any other circumstance in which the vote, consent or approval of stockholders
of the Company, in their capacity as stockholders, is sought with respect to the
Merger Agreement or any Takeover Proposal, the Stockholder shall, in each case,
to the fullest extent that such matters are submitted for the vote, written
consent or approval of the Stockholder and the Stockholder is entitled to vote
thereon or consent thereto: (a) appear at each such meeting or otherwise cause
the Covered Shares to be counted as present thereat for purposes of calculating
a quorum; and (b) vote in favor of (or cause to be voted in favor of), in person
or by proxy, deliver (or cause to be delivered) a written consent or otherwise
approve on behalf of all of the Covered Shares (i) the adoption of the Merger
Agreement and any related proposal in furtherance thereof, as reasonably
requested by Parent, submitted for the vote, written consent or approval of the
Company’s stockholders; (ii) against any action, proposal or agreement submitted
for the vote, written consent or approval of the Company’s stockholders that is
in opposition to, or to the Stockholder’s knowledge (based upon the advice of
counsel) is competitive or materially inconsistent with, the Merger or to the
Stockholder’s knowledge (based upon the advice of counsel) would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Merger Agreement, or of the
Stockholder contained in this Agreement; and (iii) against any Takeover Proposal
and against any other action, agreement or transaction submitted for the vote,
written consent or approval of stockholders that the Stockholder knows would
impede, interfere with, delay, postpone, discourage, frustrate the purposes of
or adversely affect the Merger or the other transactions contemplated by the
Merger Agreement or this Agreement or the performance by the Company of its
obligations under the Merger Agreement or by the Stockholder of its obligations
under this Agreement.
2
2.2. No Inconsistent
Agreements. The Stockholder hereby covenants and agrees that,
except for this Agreement, and except as may be permitted by Section 4.3(b)
hereof, it (a) has not entered into, and shall not enter into at any time while
this Agreement remains in effect, any voting agreement or voting trust with
respect to the Covered Shares with respect to any of the matters described in
Section 2.1 (the “Section 2.1 Matters”)
or, except with Parent or Merger Sub, any contract, option or other agreement or
binding understanding with respect to any Transfer of any or all of the Covered
Shares, (b) has not granted, and shall not grant at any time while this
Agreement remains in effect (except pursuant to Section 2.3), a proxy, consent
or power of attorney with respect to the Covered Shares with respect to any of
the Section 2.1 Matters and (c) has not knowingly taken and shall not knowingly
take any action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing any of its obligations
under this Agreement.
2.3. Proxy. Without
in any way limiting the Stockholder’s right to vote the Covered Shares in its
sole discretion on any matters other than the Section 2.1 Matters that may be
submitted to a stockholder vote, consent or other approval, the Stockholder
hereby irrevocably appoints as its proxy and attorney-in-fact, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, pursuant to a proxy to be delivered to Parent substantially
in the form attached hereto as Annex A, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
officer of Parent, and any other Person designated in writing by Parent
(collectively, the “Grantees”), each of them individually, with full power of
substitution, to vote or execute written consents with respect to the Covered
Shares and, in the discretion of the Grantees, with respect to any proposed
postponements or adjournments of any annual or special meeting of the
stockholders of the Company at which any of the Section 2.1 Matters is or was to
be considered. This proxy is coupled with an interest and shall be
irrevocable until the termination of this Agreement in accordance with its
terms, in which event this proxy shall automatically be revoked without any
further action by any party. The Stockholder will take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy and hereby revokes any proxy previously granted by it with
respect to the Covered Shares with respect to any of the Section 2.1
Matters. So long as the proxy granted under this Section 2.3 is a
valid uncontested proxy that is effective to deliver the votes of the Covered
Shares, the Stockholder shall be deemed to be fulfilling its obligations under
Section 2.1. If Parent believes that such proxy is not a valid proxy
or if Parent otherwise does not wish to utilize the proxy, Parent will
immediately so notify the Stockholder in writing so that the Stockholder will be
able to perform its obligations under Section 2.1.
3
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1. Representations and
Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent and Merger Sub as follows:
(a) Organization;
Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of the other parties hereto, constitutes a legal, valid
and binding obligation of the Stockholder, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) Ownership. As
of the date hereof, the Stockholder’s Existing Shares are, and all of the
Covered Shares will be, Beneficially Owned including owned of record by the
Stockholder. The Stockholder has good and marketable title to the
Stockholder’s Existing Shares, free and clear of any Encumbrances. As
of the date hereof, the Stockholder’s Existing Shares constitute all of the
shares of Common Stock Beneficially Owned or owned of record by the
Stockholder. Except for the rights granted to Parent hereby, the
Stockholder has and will have at all times through the Closing Date sole voting
power (including the right to control such vote as contemplated herein) with
respect to the Section 2.1 Matters, sole power of disposition, sole power to
issue instructions with respect to the Section 2.1 Matters, and sole power to
agree to all of the matters set forth in this Agreement, in each case, with
respect to all of the Stockholder’s Existing Shares and Covered
Shares.
(c) No
Violation. The execution, delivery and performance of this Agreement
by the Stockholder does not and will not (whether with or without notice or
lapse of time, or both) (i) violate, conflict with or result in the breach of
any of the terms or conditions of, result in any (or the right to make any)
modification of or the cancellation or loss of a benefit under, require any
notice, consent or action under, or otherwise give any Person the right to
terminate, accelerate obligations under or receive payment or additional rights
under, or constitute a default under, any Contract to which the Stockholder is a
party or by which it is bound or (ii) violate any Law applicable to the
Stockholder or by which any of the Stockholder’s assets or properties is bound,
except for any of the foregoing as would not, either individually or in the
aggregate, impair the ability of the Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
4
ARTICLE
IV
OTHER
COVENANTS
4.1. Prohibition on Transfers,
Other Actions. Except as permitted by Section 4.3(b), the
Stockholder hereby agrees not to (i) Transfer any of the Covered Shares,
Beneficial Ownership thereof or any other interest specifically therein, except
to participate in the Merger; (ii) enter into any agreement, arrangement or
understanding with any Person (other than Parent or Merger Sub), or knowingly
(based upon advice of counsel) take any other action, that violates or conflicts
with the Stockholder’s representations, warranties, covenants and obligations
under this Agreement; or (iii) take any action that could restrict or otherwise
affect the Stockholder’s legal power, authority and right to comply with and
perform its covenants and obligations under this Agreement. Any
Transfer in violation of this provision shall be void.
4.2. Stock Dividends,
etc. In the event of a stock split, stock dividend or
distribution, or any change in the Common Stock by reason of any split-up,
reverse stock split, recapitalization, combination, reclassification, exchange
of shares or the like, the terms “Existing Shares” and “Covered Shares” shall be
deemed to refer to and include such shares as well as all such stock dividends
and distributions and any securities into which or for which any or all of such
shares may be changed or exchanged or which are received in such
transaction.
4.3. No
Solicitation.
(a) The
Stockholder hereby agrees that during the term of this Agreement, except as
permitted by Section 4.3(b), it shall not, and shall use its reasonable best
efforts to ensure that any of its Affiliates or Representatives do not, directly
or indirectly, (i) initiate, solicit, publicly propose or encourage the
submission of a Takeover Proposal, (ii) participate or engage in negotiations
with respect to any Takeover Proposal or (iii) furnish any non-public
information regarding the Company or the Merger to any other Person; provided, however, that nothing
in this Section 4.3(a) shall prevent the Stockholder, in the Stockholder’s
capacity as a director or executive officer of the Company, from engaging in any
activity permitted pursuant to Section 5.3 of the Merger Agreement, and no
action by the Company or any of its Affiliates in compliance with Section 5.3 of
the Merger Agreement shall be a violation by Stockholder of this Section
4.3.
(b) Notwithstanding
anything in this Agreement to the contrary, in the event the Company Board (or
the Strategic Alternatives Committee) exercises its rights under Section 5.3 of
the Merger Agreement to (i) furnish information with respect to the Company and
its Subsidiaries to any Person, and (ii) participate, engage or assist in any
manner in discussions or negotiations with any Person, in each case, in
compliance with Section 5.3 of the Merger Agreement, then (x) the Stockholder
may likewise furnish any such information to such Person and participate, engage
or assist in any manner in such discussions or negotiations with such Person,
provided, that
any action taken by the Stockholder shall be taken only in coordination with the
Company Board (or the Strategic Alternatives Committee), and (y) in connection
with the Company’s termination of the Merger Agreement pursuant to Section
5.3(d) of the Merger Agreement in order to enter into a transaction which
constitutes a Superior Proposal, Stockholder shall be entitled to enter into a
voting or other support agreement with the Person making the Superior Proposal,
provided, that
the effectiveness of such agreement shall be conditioned upon the termination of
the Merger Agreement in compliance with the Article VII thereof.
5
4.4. Waiver of Appraisal
Rights. The Stockholder agrees not to exercise any rights of
appraisal or any dissenters’ rights that the Stockholder may have (whether under
applicable Law or otherwise) or could potentially have or acquire in connection
with the Merger.
4.5. Further
Assurances. From time to time, at Parent’s request and without
further consideration, the Stockholder shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary to
effect the actions and consummate the transactions contemplated by this
Agreement.
ARTICLE
V
MISCELLANEOUS
5.1. Termination. This
Agreement shall remain in effect until the earliest to occur of (i) the
Closing Date, (ii) the termination of the Merger Agreement in accordance with
its terms; provided, however, that the
provisions of the Article V shall survive any termination of this Agreement;
(iii) six months after the date hereof; or (iv) at the Stockholder’s option,
upon written notice by the Stockholder to the Parent from and after any material
amendment, waiver or modification to the terms of the Merger Agreement or any
amendment, waiver or modification to the terms of the Merger Agreement that
changes the form of or decreases the amount of payment from what is set forth in
the Merger Agreement of, the Merger Consideration. Nothing in this
Section 5.1 and no termination of this Agreement shall relieve or otherwise
limit any party of liability for willful breach of this Agreement.
5.2. No Ownership
Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent or Merger Sub any direct or indirect ownership or incidence of
ownership of or with respect to any Covered Shares, except as otherwise provided
herein. All rights, ownership and economic benefits of and relating
to the Covered Shares shall remain vested in and belong to the Stockholder, and
neither Parent nor Merger Sub shall have any authority to direct the Stockholder
in the voting or disposition of any of the Covered Shares, except as otherwise
provided herein.
5.3. Notices.
(a) All
notices and other communications hereunder shall be in writing and shall be
deemed given when delivered personally, by facsimile (upon telephonic
confirmation of receipt), on the first business day following the date of
dispatch if delivered by a recognized next day courier service or on the third
business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, post prepaid. All notices
hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing in accordance with this Section 5.3
by the party to receive such notice.
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(i)
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If
to Parent or Merger Sub, to:
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Health
Systems Solutions Group, LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇.▇. ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
Chief Financial Officer
and
Health
Systems Solutions Group, LLC
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇.▇. ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
General Counsel
Except
after November 1, 2008, to those persons at:
Health
Systems Solutions Group, LLC
▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇.▇. 10018
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a
copy to (which will not constitute notice to Parent or Merger Sub):
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Park
Avenue Tower
▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇
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(ii)
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if
to the Stockholder, to the address set forth on Schedule I
hereto.
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5.4. Interpretation. The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section references are to this
Agreement unless otherwise specified. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” The meanings given to
terms defined herein shall be equally applicable to both the singular and plural
forms of such terms. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. This Agreement is
the product of negotiation by the parties having the assistance of counsel and
other advisers. It is the intention of the parties that this
Agreement not be construed more strictly with regard to one party than with
regard to the others.
7
5.5. Counterparts. This
Agreement may be executed by facsimile and in counterparts, all of which shall
be considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
5.6. Entire
Agreement. This Agreement, together with the agreements and
other documents and instruments referred to herein or annexed hereto, embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written and oral, that
may have related to the subject matter hereof in any way.
5.7. Governing Law; Waiver of
Jury Trial.
(a) This
Agreement, and all claims or causes of action (whether at law, in contract or in
tort) that may be based upon, arise out of or relate to this Agreement or the
negotiation, execution or performance hereof, shall be governed by and construed
in accordance with the Laws of the State of Delaware, without giving effect to
any choice or conflict of Law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the Laws
of any jurisdiction other than the State of Delaware.
(b) Each
party hereto hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any Action arising out of
or relating to this Agreement. Each party hereto (i) certifies that
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such party would not, in the event of any action,
seek to enforce the foregoing waiver and (ii) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement, by, among other
things, the mutual waiver and certifications in this Section 5.7.
5.8. Amendment;
Waiver. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto. Each
party may waive any right of such party hereunder by an instrument in writing
signed by such party and delivered to Parent and the Stockholder.
5.9. Remedies. All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
5.10. Severability. Any
term or provision of this Agreement which is determined by a court of competent
jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction, and
if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable, in all cases so long as neither the economic nor legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party or its stockholders or partners, as applicable. Upon any such
determination, the parties shall negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original intent
of the parties as closely as possible and to the end that the transactions
contemplated hereby shall be fulfilled to the maximum extent
possible.
8
5.11. Successors and Assigns;
Third Party Beneficiaries. Neither this Agreement nor any of
the rights or obligations of any party under this Agreement shall be assigned,
in whole or in part (by operation of law or otherwise), by any party without the
prior written consent of the other parties hereto. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended
to confer on any Person other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
5.12. Stockholder
Capacity. The restrictions and covenants of the Stockholder
hereunder shall not be binding, and shall have no effect, in any way with
respect to any director or officer of the Company or any of its Subsidiaries in
such Person’s capacity as such a director or officer, nor shall any action taken
by any such director or officer in his or her capacity as such be deemed a
breach by the Stockholder of this Agreement.
[Remainder
of this page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
(where applicable, by their respective officers or other authorized Person
thereunto duly authorized) as of the date first written above.
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PARENT:
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HEALTH
SYSTEMS SOLUTIONS, INC.
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By:
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Chief
Financial Officer
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MERGER
SUB:
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HSS
ACQUISITION CORP.
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By:
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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[STOCKHOLDER]
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By:
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Name:
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Title:
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10
ANNEX A
IRREVOCABLE
PROXY
Dated as
of _______, 2008
The
undersigned Stockholder (the “Stockholder”) of
Emageon, Inc., a Delaware corporation (the “Company”), hereby
irrevocably (to the fullest extent permitted by law) appoints each of ▇▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, for and in
the name, place and stead of the Stockholder, to vote and exercise all voting
and related rights (to the full extent that the undersigned is entitled to do
so) with respect to all of the shares of capital stock of the Company that now
are or hereafter may be beneficially owned by the undersigned, and any and all
other shares or securities of the Company issued or issuable in respect thereof
on or after the date hereof (collectively, the “Covered Shares”), in
accordance with the terms of this Proxy. The Covered Shares
beneficially owned by the Stockholder as of the date of this Proxy are listed on
Schedule I to this Proxy. Upon the Stockholder’s execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any
Covered Shares are hereby revoked and terminated, and the Stockholder agrees not
to grant any subsequent proxies with respect to the Covered Shares, with respect
to any of the matters referred to in any of clauses (a) through (c) below until
after the Expiration Time (as defined below).
This
Proxy is irrevocable (to the fullest extent permitted by law), is coupled with
an interest and is granted pursuant to that certain Voting Agreement of even
date herewith (the “Voting Agreement”) by
and among Health Systems Solutions, Inc., a Nevada corporation (“Parent”), HSS
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Sub”), and the undersigned Stockholder, and is granted in consideration
of Parent entering into that certain Agreement and Plan of Merger of even date
herewith (as it may hereafter be amended from time to time in accordance with
the provisions thereof, the “Merger Agreement”) by
and among Parent, Merger Sub and the Company. The Merger Agreement
provides that Merger Sub will merge with and into the Company (the “Merger”) and the
Stockholder will be entitled to receive the merger consideration specified
therein. The term “Expiration Time”, as
used in this Proxy, shall mean the earliest to occur of the events specified in
Section 5.1 of the Voting Agreement.
The
attorneys and proxies named above, and each of them, are hereby authorized and
empowered by the Stockholder, at any time prior to the Expiration Time, to act
as the Stockholder’s attorney and proxy to vote all of the Covered Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to all of the Covered Shares (including, without limitation, the power
to execute and deliver written consents) at every annual or special meeting of
stockholders of the Company (and at every adjournment or postponement thereof),
and in every written consent in lieu of such meeting:
(a) in
favor of the adoption of the Merger Agreement and any related proposal in
furtherance thereof, as reasonably requested by Parent, submitted for the vote,
written consent or approval of the Company’s stockholders;
(b) against
any action, proposal or agreement submitted for the vote, written consent or
approval of the Company’s stockholders that is in opposition to, or to the
Stockholder’s knowledge (based upon the advice of counsel) is competitive or
materially inconsistent with, the Merger or to the Stockholder’s knowledge
(based upon the advice of counsel) would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement, or of the Stockholder contained in the Voting
Agreement; and
(c) against
any Takeover Proposal and against any other action, agreement or transaction
submitted for the vote, written consent or approval of stockholders that the
Stockholder knows would impede, interfere with, delay, postpone, discourage,
frustrate the purposes of or adversely affect the Merger or the other
transactions contemplated by the Merger Agreement or the Voting Agreement or the
performance by the Company of its obligations under the Merger Agreement or by
the Stockholder of its obligations under the Voting Agreement.
Any term
or provision of this Proxy that is invalid or unenforceable in any situation in
any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Stockholder agrees that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Proxy shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
Stockholder agrees to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
The
restrictions and covenants of the Stockholder hereunder shall not be binding,
and shall have no effect, in any way with respect to any director or officer of
the Company or any of its Subsidiaries in such Person’s capacity as such a
director or officer, nor shall any action taken by any such director or officer
in his or her capacity as such be deemed a breach by the Stockholder of this
Proxy.
Any
obligation of the Stockholder hereunder shall be binding upon the successors and
assigns of the Stockholder.
This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Time.
[signature
page follows]
COUNTERPART
SIGNATURE PAGE
IN
WITNESS WHEREOF, the Stockholder has caused this Irrevocable Proxy to be duly
executed as of the day and year first above written.
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[STOCKHOLDER]
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By:
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Name:
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Title:
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with a
copy to:
Health
Systems Solutions Group, LLC
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Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
Chief Financial Officer
and
Health
Systems Solutions Group, LLC
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Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
General Counsel
Except
after November 1, 2008, to those persons at:
Health
Systems Solutions Group, LLC
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▇.▇. 10018
Facsimile
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With a
copy to (which will not constitute notice to Parent or Merger Sub):
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▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Park
Avenue Tower
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No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn:
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