27,000,000 Shares of Common Stock Allscripts-Misys Healthcare Solutions, Inc. UNDERWRITING AGREEMENT
Exhibit 99.19
EXECUTION VERSION
27,000,000 Shares of Common Stock
Allscripts-Misys Healthcare Solutions, Inc.
August 16, 2010
Credit Suisse Securities (USA) LLC
Barclays Capital Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
UBS Securities LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Barclays Capital Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
UBS Securities LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Each of 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”), agrees severally with the several
Underwriters named in Schedule B hereto (the “Underwriters”) to sell to the several Underwriters an
aggregate of 27,000,000 outstanding shares (“Firm Securities”) of the common stock, par value $0.01
per share (“Securities”), of Allscripts-Misys Healthcare Solutions, Inc., a Delaware corporation
(the “Company”) and each of the Selling Stockholders also agrees to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 4,050,000 additional outstanding
shares (“Optional Securities”) of Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the “Offered Securities.”
As part of the transactions described under the heading “The Eclipsys Merger” in the Company’s
preliminary prospectus supplement, dated August 16, 2010, following completion of the offering of
the Offered Securities and, subject to the satisfaction or waiver of certain conditions set forth
in the Framework Agreement, dated as of June 9, 2010, as amended on July 26, 2010 (as in existence
on the date hereof, the “Framework Agreement”), by and between the Company and Misys, and in the
Agreement and Plan of Merger, dated as of June
9, 2010 (as in existence on the date hereof, the “Merger Agreement”), by and among the Company,
Arsenal Merger Corp., a Delaware corporation and a direct wholly owned subsidiary of the Company
(“Merger Sub,” and together with the Company, the “Allscripts Parties”) and Eclipsys Corporation, a
Delaware corporation (“Target”), Merger Sub will merge with and into Target, with Target surviving
as a wholly owned subsidiary of the Company. After completion of the US Reorganization (as defined
in the Framework Agreement), the Selling Stockholders desire to transfer the Newco Shares (as
defined in the Framework Agreement) to the Company in exchange for 61,308,295 newly issued shares
of the Company’s common stock (such newly issued shares, the “Exchange Shares”, and the transfer of
the Newco Shares to the Company in exchange for the Exchange Shares, the “Arsenal Exchange”). Upon
the terms and subject to the conditions of the Framework Agreement, the Company will, on the First
Closing Date (as defined below), repurchase 24,442,083 shares of the Company’s common stock to be
received by the Selling Stockholders and Misys Patriot Limited, a limited company formed under the
Laws of England and Wales, in the Arsenal Exchange for an aggregate consideration of $577.4 million
(the “Share Repurchase”).
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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.
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 6:00 p.m. (Eastern time) on the date of this Agreement.
“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.
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“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.
“knowledge of the Company” means the actual knowledge of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, who, the Company represents, have engaged in and managed all material aspects
of the Company’s diligence process and investigation of the Target, are the primary individuals at
the Company responsible for such acquisition and managing such diligence investigation and have had
access to all material information regarding Target that was made available to the Company.
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not a General Use Issuer Free Writing Prospectus.
“Merger Agreement Disclosures” means the Target Disclosures and the Parent Disclosure Letter
to the Merger Agreement and the Parent SEC Documents (as defined in the Merger Agreement), all as
in effect on the date hereof.
“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”).
“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.
“Target Disclosures” means the Company Disclosure Letter to the Merger Agreement and the
Company SEC Documents (as defined in the Merger Agreement) , all as in effect on the date hereof.
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
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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 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.
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(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 August 16, 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 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 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,
result in a material adverse change in the condition (financial or otherwise), results of
operations or business of either (x) with respect to all matters pertaining to the Company
and its subsidiaries, the Company and its subsidiaries, taken as a whole or (y) with
respect to all matters pertaining to Target and its subsidiaries, the Company and its
subsidiaries taken as a whole after giving pro forma effect to the Merger (a “Material
Adverse Effect”), the Company and, to the knowledge of the Company, Target are each duly
qualified to do business as a foreign corporation in good standing in all other
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jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification.
(viii) Subsidiaries of Company and of Target. Each subsidiary of the Company and, to
the knowledge of the Company, each subsidiary of Target 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, result in a Material Adverse Effect, each subsidiary
of the Company and, to the knowledge of the Company, each subsidiary of Target 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 and, to the knowledge of the Company, each subsidiary of Target
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 and of Target, respectively, the capital stock of each subsidiary owned by the
Company and, to the knowledge of the Company, each subsidiary owned by Target, 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 are, and, when the Offered
Securities have been delivered and paid for in accordance with this Agreement on each
Closing Date, such Offered Securities will have been, validly issued, fully paid and
nonassessable, will conform to the information in the General Disclosure Package and to
the description of such Offered Securities contained in the Final Prospectus; except as to
the anti-dilution protection provided to Misys in the Relationship Agreement, dated as of
March 17, 2008, by and between the Company and Misys, as amended to date (the
“Relationship Agreement”), as set forth in the General Disclosure Package, 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 and
Target’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, on the one hand, the Company or, to
the knowledge of the Company, Target and, on the other hand, any person that would give
rise to a valid claim against the Company or Target or any Underwriter for a brokerage
commission, finder’s fee or other like payment with respect to this offering.
(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
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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, subject to notice of issuance.
(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. Except as
disclosed in the General Disclosure Package, no consent, approval, authorization, or order
of, or filing (other than Current Reports on Form 8-K required to be filed with the
Commission and filings required to be filed in the State of Delaware with respect to the
Merger Agreement) with, any person (including any governmental agency or body or any
court) is required that would prevent the consummation by the Company of the transactions
contemplated by the Framework Agreement or the Merger Agreement, except as have been
obtained.
(xiv) Title to Property. Except as disclosed in the General Disclosure Package or the
Target Disclosures and except as would not, individually or in the aggregate, result in a
Material Adverse Effect, (i) the Company and its subsidiaries and, to the knowledge of the
Company, Target 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 and, to the
knowledge of the Company, Target 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, the sale of the Offered
Securities, and, with respect to clause (iii) and except as set forth on Schedules 2.4 and
3.4 to the Merger Agreement Disclosures, the consummation of the transactions contemplated
by the Framework Agreement and the Merger Agreement 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 or, to the knowledge of the Company, Target or any of
its subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its
subsidiaries or, to the knowledge of the Company and other than as set forth in the Target
Disclosures, Target 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, to
the knowledge of the Company and other than as set forth in the Target Disclosures, Target
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 or, to the knowledge of the
Company, Target or any of its subsidiaries is a party (including the Merger Agreement and
the Framework Agreement) or by which the Company or any of its subsidiaries or, to the
knowledge of the Company, Target or any of its subsidiaries is bound, or to which any of
the properties of the Company or any of its subsidiaries or, to the knowledge of the
Company, Target or any of its subsidiaries is subject,
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except in the case of clauses (ii) and (iii) for those which would not have a Material
Adverse Effect.
(xvi) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company and other than as set forth in the
Target Disclosures, Target or 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, result in a Material Adverse Effect.
(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 and, to
the knowledge of the Company and other than as set forth in the Target Disclosures, Target
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, have a Material Adverse Effect.
(xix) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries or, to the knowledge of the Company and other than as set forth in
the Target Disclosures, Target or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent that could, individually or in the aggregate, have a Material
Adverse Effect.
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(xx) Possession of Intellectual Property. Except as described in the General Disclose
Package, the Company and its subsidiaries and, to the knowledge of the Company and except
as disclosed in the Merger Agreement Disclosures, Target 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, have a
Material Adverse Effect. Except as disclosed in the General Disclosure Package or, with
respect to Target and its subsidiaries, the Merger Agreement Disclosures (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 or, to the knowledge of the Company, Target 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 or, to the knowledge of the Company, Target or
its subsidiaries, and, to the Company’s knowledge, the Intellectual Property Rights of the
Company, the Target and each of their 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 or, to
the knowledge of the Company, Target 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 or, to the knowledge of the Company, Target and 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 or, to the
knowledge of the Company, Target 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 or, to the knowledge of the Company, Target or its subsidiaries in their
businesses has been obtained or is being used by the Company or its subsidiaries or Target
or its subsidiaries in violation of any contractual obligation binding on the Company or
any of its subsidiaries or Target or any of its subsidiaries in violation of the rights of
any persons; and (vii) the Company and its subsidiaries and, to the knowledge of the
Company, Target 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,
have a Material Adverse Effect.
(xxi) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company and
except as set forth in the Merger Agreement Disclosures, Target 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, have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such a claim.
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(xxii) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Recent Developments,” under the caption “Risk
Factors—Risks Related to the Coniston Transactions — Newco 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 Newco unrelated to those
transactions,” “The Eclipsys Merger,” “Description of our Capital Stock” and “Certain U.S.
Federal Tax Consequences,” 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 “Company Board”) and, to the knowledge of the Company and except
as set forth in the Merger Agreement Disclosures, Target, its subsidiaries and Target’s
Board of Directors (the “Target Board”) are in compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all
applicable Exchange Rules. Each of the Company and, to the knowledge of the Company and
other than as set forth in the Target Disclosures, Target maintains 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 (with respect to the Company, “Company Internal
Controls” and with respect to Target, “Target 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 Company Internal Controls are overseen by
the Audit Committee (the “Company Audit Committee”) of the Company Board, and the Target
Internal Controls are overseen by the Audit Committee (the “Target Audit Committee”) of
the Target Board, in each case in accordance with Exchange Rules. Since the date of the
latest audited financial statements 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.
10
(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 or, to the knowledge of the Company and except as set forth in the Merger
Agreement Disclosures, Target or any of its subsidiaries is a party, or which concerns the
Company, Target or any of their respective properties, that would individually or in the
aggregate have 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, the Framework Agreement or the Merger 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, to the knowledge of the Company and other
than as set forth in the General Disclosure Package, Target and its consolidated
subsidiaries as of the dates shown and their 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 or, to the knowledge of the Company, Target
and its subsidiaries, taken together with the Company and its subsidiaries as a whole
after giving pro forma effect to the merger, 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 or, to the knowledge of
the Company and other than as set forth in the Target Disclosures, Target 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 or, to the knowledge of the Company, Target and its
subsidiaries.
11
(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) Authorization of the Merger Agreement. The Merger Agreement has been duly
authorized, executed and delivered by the Allscripts Parties and, to the knowledge of the
Company, Target, and constitutes a valid and legally binding agreement of the Allscripts
Parties and, to the knowledge of the Company, Target, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting creditors’ rights
generally or by general equitable principles.
(xxxi) Authorization of the Framework Agreement. The Framework Agreement has been
duly authorized, executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors’ rights generally or by general
equitable principles.
(xxxii) 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 (which, for the avoidance of doubt, shall not include Newco
(as defined in the Framework Agreement)) and, to the knowledge of the Company and other
than as set forth in the Target Disclosures, Target and each of its subsidiaries and Newco
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 (which,
for the avoidance of doubt, shall not include Newco) or, to the knowledge of the Company
and other than as set forth in the Target Disclosures, Target or any of its subsidiaries
or Newco, 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
have a Material Adverse Effect.
(xxxiii) 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.
(xxxiv) Compliance Under Federal Healthcare Programs. Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company and other than as set forth in the
Target Disclosures, Target or 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 in Target or any of its subsidiaries or who is an officer, director, agent or managing
employee of the Company or any of its subsidiaries or of Target 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
12
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 have a Material
Adverse Effect.
(xxxv) HIPAA Compliance. Except as set forth in the General Disclosure Package, the
Company, its subsidiaries and, to the knowledge of the Company, Target 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 have a Material Adverse Effect.
(xxxvi) No Prohibition on Dividends. No subsidiary of the Company or, to the
knowledge of the Company, Target is currently prohibited, directly or indirectly, from
paying any dividends to the Company or Target, respectively, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company or Target,
respectively, any loans or advances to such subsidiary from the Company or Target,
respectively, or from transferring any of such subsidiary’s property or assets to the
Company or Target, respectively, or any other subsidiary of the Company or Target,
respectively, except under the credit facilities of the Company described in the General
Disclosure Package and of Target, respectively.
(xxxvii) Insurance. The Company and its subsidiaries and, to the knowledge of the
Company and except as set forth in the Merger Agreement Disclosures, Target 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, to the knowledge of the Company, Target or any of
its subsidiaries or their respective businesses, assets, employees, officers and directors
are in full force and effect.
(xxxviii)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.
(xxxix) 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.
13
(xl) 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. In respect of the Newco Shares owned by each Selling
Stockholder, immediately prior to the completion of the Arsenal Exchange, such 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. In respect of the
Offered Securities to be sold by such Selling Stockholder pursuant to this Agreement, upon
completion of the Arsenal Exchange, such Selling Stockholder will, on each Closing Date,
have, 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 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 or the Framework Agreement except (i)
with respect to the US
14
reorganization of Misys described in the Framework Agreement, which will be obtained at or
prior to the First Closing Date, (ii) such as have been obtained and made under the Act
and (iii) 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 Framework Agreement and the
consummation of the transactions herein and therein contemplated will not contravene (i)
the memorandum or articles of association of any Selling Stockholder, (ii) except as would
not materially and adversely affect the ability of the Selling Stockholders to perform
their obligations under this Agreement or the Framework 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..
(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.
(vi) No Undisclosed Material Information. The sale of the Offered Securities by such
Selling Stockholder under this Agreement is being made pursuant to Misys’s obligations
under the Framework Agreement and is not the result of any material information that is
not set forth in the shareholder circular, dated as of July 29, 2010, sent to Misys’
shareholders in connection with the meeting of its shareholders convened to approve the
transactions contemplated by the Framework Agreement.
(vii) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by each Selling Stockholder and the consummation of the transactions
contemplated hereby is consistent with the authorization by Misys shareholders obtained on
August 13, 2010. The Framework Agreement has been duly executed and delivered by Misys and,
assuming the due authorization, execution and delivery by each other party thereof,
constitutes a legal, valid and binding obligation of Misys, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws of general application relating to or
affecting creditors’ rights generally and except for the limitations imposed by general
principles of equity.
(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
15
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)
the Framework Agreement under the caption “Recent Developments — Reduction of Misys
Share Ownership” on pages S-6 through S-8 of the Statutory Prospectus (other than
the statements summarizing the terms of the Commitment Letter (as defined in the
Statutory Prospectus) and the related credit facilities and Misys’ expected
ownership percentage upon completion of the Coniston Transactions (as defined in
the Statutory Prospectus)); (b) the Shared Services Agreement and the Transition
Services Agreement (each as defined in the Statutory Prospectus) under the caption
“Risk Factors — We currently rely on Misys for the provision of certain corporate
services and the combined company will have to rely on its own resources and
personnel to operate the business” on page S-30 of the Statutory Prospectus (other
than the second and last sentence of such risk factor); and (c) the Shared Services
Agreement (other than the third and last sentences of the relevant summary), the
Aprima Medical Software Agreement, the Stock Repurchase Agreement (other than the
average price and aggregate purchase price of the repurchased shares), the License
Agreements (in each case as such terms are used in the Company’s definitive proxy
statement, dated August 26, 2009, the “Proxy Statement”) and the Relationship
Agreement (other than the date of such agreement specified therein) on pages 37-39
of the Proxy Statement, 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 Firm Securities
(rounded up or down, as determined by Barclays Capital Inc. in their discretion, in order to avoid
fractions) obtained by multiplying the number of Firm 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 Firm Securities set forth opposite the name of such Underwriter in Schedule B
hereto and the denominator of which is the total number of Firm Securities, at a purchase price
equal to $16.368 per share for 25,000,000 shares of common stock and $16.45325 per share for
2,000,000 shares of common stock (resulting in a blended purchase price per Firm Security of
$16.3743148148148), such shares allocated amongst the Underwriters in accordance with their
respective purchases. The Selling Stockholders will deliver the Firm 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 August 20, 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 “First Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the First 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 Firm Securities so to be delivered will be provided to
Skadden, Arps, Slates, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at or prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company and the Selling
Stockholders from time to time not more than 30 days subsequent to the date of the Final
Prospectus, the
16
Underwriters may purchase all or less than all of the Optional Securities at a purchase price of
$16.45325 per share. The Selling Stockholders agree, severally and not jointly, to sell to the
Underwriters the respective numbers of shares of Optional Securities obtained by multiplying the
number of shares of Optional Securities specified in such notice by a fraction the numerator of
which is 40,500 in the case of Kapiti Limited, and 4,009,500 in the case of ACT Sigmex Limited, and
the denominator of which is the total number of Optional Securities (subject to adjustment by
Barclays Capital Inc. to eliminate fractions), and the Underwriters agree, severally and not
jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased for the
account of each Underwriter in the same proportion as the number of shares of Firm Securities set
forth opposite such Underwriter’s name bears to the total number of shares of Firm Securities
(subject to adjustment by Barclays Capital Inc. to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection with the sale of
the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time not more than 30 days
subsequent to the date of the Final Prospectus and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by the Representatives to the Company and the
Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by Barclays Capital Inc. but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The Selling Stockholders will
deliver the Optional Securities being purchased on each Optional Closing Date 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 therefor 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. Evidence of the issuance of the Optional Securities being purchased
on each Optional Closing Date will be provided to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at or
prior to such Optional 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.
17
(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.
(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) to 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,
18
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 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 Securities to
the holders of common stock of Target pursuant to the Merger Agreement; (B) the issuance of equity
awards to holders of Target equity awards pursuant to the Merger Agreement, as described in the
General Disclosure Package; (C) the issuance of restricted stock units and performance-based awards
under the Company’s equity compensation plans and incentive retention plans, including any equity
compensation plan and incentive retention plan assumed by the Company in connection with the
Eclipsys Merger; (D) 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 clauses (B) and (C); (E) the Arsenal Exchange, the Share Repurchase, the Contingent
Repurchase (as defined in the Framework Agreement) and the issuance of Securities pursuant to the
Framework Agreement; and (F) the filing of any registration statement (x) on Form S-4 with respect
to issuances pursuant to clause (A), Form S-8 or any successor forms thereto, or (y) relating
solely to any of the Company’s or Target’s employee benefit plans.
19
The Company Lock-Up Period will commence on the date hereof and continue for 90 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 apply (A) to the US Reorganization,
the Arsenal Exchange, the Share Repurchase and the Contingent Repurchase (as defined in the
Framework Agreement), in each case in accordance with the terms of the Framework Agreement
(B) to the extent Misys or any of its subsidiaries is required to take any of the actions
referred to in (i) through (v) above, to enable Misys to comply with Listing Rules 9.2.2A
and 6.1.4(2) of the United Kingdom Listing Authority. The Selling Stockholders Lock-Up
Period will commence on the date hereof and continue for 90 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).
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
20
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 Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional 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 such 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 each 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, in any letter dated a Closing
Date, the specified date referred to in Schedule D-1 hereto shall be a date no more
than three days prior to such Closing Date), and (ii) a letter with respect to Target dated
the date hereof and each 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, in any letter dated a Closing Date, the specified date referred to in Schedule D-2
hereto shall be a date no more than three days prior to such 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 (x) with respect to all matters pertaining to the Company and its
subsidiaries, the Company and its subsidiaries, taken as a whole or (y) with respect to all
matters pertaining to Target and its subsidiaries, the Company and its subsidiaries taken
as a whole after giving pro forma effect to the Merger, 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 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
21
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 such Closing Date, of Sidley Austin LLP, counsel for the Company, in the form attached
hereto as Schedule H.
(e) Opinion of Counsel for Target. The Representatives shall have received an opinion, dated
such Closing Date, of King & Spalding LLP, counsel for Target, in the form attached hereto as
Schedule I.
(f) Opinion of Counsel for Selling Stockholders. The Representatives shall have received
opinions, dated such 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 J-1 and J-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 such
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 such 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 such Closing Date
and satisfied all conditions on its part required to be satisfied hereunder at or prior to such
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 (x) the Company and its subsidiaries taken as a whole or (y)
to the knowledge of the Company and other than as set forth in the Target Disclosure Package, the
Target and its subsidiaries taken as a whole, except in each case 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 such 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 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
22
be performed hereunder at or prior to such Closing Date and satisfied all conditions
required on its part to be satisfied hereunder at or prior to such Closing Date.
(j) Lock-Up Agreements. The “lock-up” agreements, each substantially in the form set
forth in Schedule E hereto, between the Representatives, on the one hand, and the executive
officers, directors and director-nominees of the Company (as set forth on Schedule
F), on the other hand, relating to sales and certain other dispositions of Securities,
delivered to the Representatives prior to the date hereof, shall be in full force and
effect.
(k) Chief Financial Officer’s Certificate. The Representatives shall have received on
and as of the First 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 an Optional 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.
23
(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 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 G 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 fourth paragraph under the caption “Underwriting” and the information contained in
the first sentence of the twelfth paragraph concerning stabilizing transactions under the caption
“Underwriting.”
24
(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 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
25
(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).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to
purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds 10% of the total number of
shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to the Representatives, the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Stockholders, except as provided in Section 10 (provided
that if such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
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), 7(j) or 7(k),
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 (a) Credit
Suisse Securities (USA) LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: LCD-IBD,
(b) Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate
Registration, with a copy to the Director of Litigation, Office of the General Counsel, (c) ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Syndicate Desk
and (d) UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; 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.
26
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.
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
27
(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.
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]
28
| Very truly yours, Allscripts-Misys Healthcare Solutions, Inc. |
||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | President | |||
| Kapiti Limited |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
| Act Sigmex Limited |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first
above written.
| Credit Suisse Securities (USA) LLC | ||||
By:
|
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
| Barclays Capital Inc. | ||||
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||||
By:
|
/s/ ▇▇▇ ▇▇▇▇▇ | |||
| Name: ▇▇▇ ▇▇▇▇▇ | ||||
| Title: Vice President | ||||
| UBS Securities LLC | ||||
By:
|
/s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Title: Executive Director | ||||
Acting on behalf of themselves and as the Representatives of the several Underwriters
29
SCHEDULE A
| Number of | ||||||||
| Number of Firm | Optional | |||||||
| Securities | Securities | |||||||
| Selling Stockholder | to be Sold | to be Sold | ||||||
Kapiti Limited |
270,000 | 40,500 | ||||||
ACT Sigmex Limited |
26,730,000 | 4,009,500 | ||||||
Total |
27,000,000 | 4,050,000 | ||||||
30
SCHEDULE B
| Number of | ||||
| Firm Securities | ||||
| Underwriter | to be Purchased | |||
Credit Suisse Securities (USA) LLC |
10,758,118 | |||
Barclays Capital Inc. |
9,209,391 | |||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
4,224,554 | |||
UBS Securities LLC |
2,807,937 | |||
Total |
27,000,000 | |||
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: $17.05
Number of shares of sold to the public: 27,000,000 (excluding over-allotment option of
4,050,000)
| 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 TARGET
34
SCHEDULE E
[FORM OF LOCK-UP AGREEMENT]
August ___, 2010
Credit Suisse Securities (USA) LLC
Barclays Capital Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
UBS Securities LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Barclays Capital Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
UBS Securities LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
The undersigned understands that you, as Representatives of the several Underwriters named in
Schedule B to the Underwriting Agreement (the “Underwriters”), propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with Kapiti Limited and ACT Sigmex Limited,
each a limited company incorporated under the laws of England and Wales (together, the “Selling
Stockholders”), and Allscripts-Misys Healthcare Solutions, Inc., a Delaware corporation (the
“Company”), providing for the public offering (the “Public Offering”) of common stock, par value
$0.01 per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Underwriting Agreement.
As an inducement to the Underwriters to execute the Underwriting Agreement, the undersigned
hereby agrees that during the period specified in the following paragraph (the “Lock-Up Period”),
the undersigned will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any Securities or securities convertible into or exchangeable or exercisable for any
Securities, enter into a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, your prior written consent.
In addition, the undersigned agrees that, without your prior written consent, it will not, during
the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of
any Securities or any security convertible into or exercisable or exchangeable for the Securities.
The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue and
include the date 90 days after the public offering date set forth on the final prospectus used to
sell the Securities (the “Public Offering Date”) pursuant to the Underwriting Agreement.
Any Securities received upon exercise of options granted to the undersigned will also be
subject to this Lock-Up Agreement. Any Securities acquired by the undersigned in the open market
will not be subject to this Lock-Up Agreement. A transfer of Securities may be made (i) to a family
member or trust, (ii) by bona fide gift for charitable or estate planning purposes, (iii) by will
or by operation of law, or (iv) in connection with the satisfaction of withholding obligations in
connection with the vesting of restricted stock units (including performance-based restricted stock
units) awarded by the Company under an equity compensation plan; provided, that in the case of
clauses (i), (ii) and (iii), the transferee agrees to be bound in writing by the terms of this
Lock-Up Agreement prior to such transfer, such transfer shall not involve a disposition for value
and no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange
Act of 1934 (the “Exchange Act”) shall be required or shall be voluntarily made in connection with
such transfer (other than a filing on a Form 5 made after the expiration of the Lock-Up Period).
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to decline to make any transfer of shares of Securities if such transfer would
constitute a violation or breach of this Lock-Up Agreement.
35
This Lock-Up Agreement shall be binding on the undersigned and the successors, heirs, personal
representatives and assigns of the undersigned. This Lock-Up Agreement shall lapse and become null
and void if (i) the Public Offering Date shall not have occurred on or before September 16, 2010,
(ii) prior to the execution of the Underwriting Agreement, upon written notice delivered by the
Company or the Selling Stockholders to the Underwriters of their determination not to proceed with
the Public Offering prior to the end of the Lock-Up Period or (iii) following execution of the
Underwriting Agreement, the termination of the Underwriting Agreement before the sale of any
Securities to the Underwriters. This Lock-Up Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
| Very truly yours, | ||||||
| Name: | ||||||
| Title: | ||||||
36
SCHEDULE F
LIST OF EXECUTIVE OFFICERS AND DIRECTORS OF THE COMPANY
SUBJECT TO LOCK-UP AGREEMENTS
SUBJECT TO LOCK-UP AGREEMENTS
Directors
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sir ▇▇▇▇▇▇▇ Cadbury
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. “▇▇▇” ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sir ▇▇▇▇▇▇▇ Cadbury
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. “▇▇▇” ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Officers (other than Directors who serve as Officers)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. Surges
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. Surges
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
37
SCHEDULE G
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, (iii) subject to the Underwriters’ over-allotment option and (iv)
beneficially owned by the Selling Stockholders after such offering assuming full exercise of
the Underwriters over-allotment option, each as set forth in the table; and
(c) the third sentence of the first footnote, the second footnote and the second and
third sentences of the fourth footnote to such table.
38
SCHEDULE H
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.
2. The Company has corporate power and authority to conduct its business as
described in the
Prospectus.
3. The authorized equity capitalization of the Company is as set forth in the
Prospectus Supplement.
4. Each of the Underwriting Agreement, the Merger Agreement dated June 9, 2010
(the “Merger
Agreement”) among the Company, Eclipsys Corporation (“Eclipsys”) and Arsenal Merger Corp., and the
Framework Agreement dated June 9, 2010, as amended on July 26, 2010 (as amended, the “Framework
Agreement”) between Misys plc (“Misys”) and the Company, has been duly authorized, executed and
delivered by the Company.
5. The Selling Stockholders’ Shares have been duly authorized by the Company and are validly
issued, fully paid and non-assessable.
6. 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.
7. 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.
8. 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.
9. 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 August 16, 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
39
no opinion with respect to (A) financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or omitted therefrom and (B) the
Incorporated Documents.
10. 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 or statistical data included or incorporated
by reference therein or omitted therefrom.
11. The statements in 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, after giving effect to the Fourth Amended
and Restated Certificate of Incorporation of the Company attached as Exhibit 2 to the Framework
Agreement, 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.
12. The statements in the Prospectus under the caption “The Eclipsys Merger,” to the extent
that such statements purport to describe certain provisions of the Merger Agreement and Framework
Agreement as currently in effect accurately describe such provisions in all material respects.
13. The statements in 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.
14. 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.
In acting as counsel to the Company in connection with the transactions described in the first
paragraph above, we have participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company and your
representatives and counsel, at which conferences certain contents of the Registration Statement,
the Preliminary Prospectus and the Prospectus and related matters were discussed. Although we are
not passing upon or assuming responsibility for the accuracy, completeness or fairness of the
statements included or incorporated by reference in or omitted from the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Incorporated Documents and have made no independent
check or verification thereof (except as set forth in paragraphs (xi), (xii) and (xiii) above),
based upon our participation in such conferences, 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:
1. 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 August 16,
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,
40
2. the Preliminary Prospectus, as of 6:00 p.m. (New York City time) on August 16, 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
3. 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 case that we express no belief and make no statement with respect to financial
statements and schedules and other financial or statistical data included or incorporated by
reference in or omitted from the Registration Statement, the Preliminary Prospectus, the Prospectus
or the Incorporated Documents.
41
FORM OF OPINION OF ALLSCRIPTS’ GENERAL COUNSEL
1. Each subsidiary of the Company is validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation, with power and authority to own, lease and
operate its properties and to conduct its business as described in the Prospectus.
2. There are no contracts, agreements or understandings between the Company and any person
granting such person registration rights or pre-emptive rights that are not described in the
Prospectus.
3. The Selling Stockholders’ Shares conform to the description of such Selling Stockholders’
Shares contained in the Prospectus and, to my knowledge, 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.
4. The statements in the Company’s Annual Report on 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.
42
SCHEDULE I
FORM OF OPINION OF KING & SPALDING LLP
AS COUNSEL FOR THE TARGET
AS COUNSEL FOR THE TARGET
1. Target is a corporation 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 Georgia.
2. Target has corporate power and authority to conduct its business as described
in the Prospectus.
43
SCHEDULE J-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
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, in
each case except for such violations or contraventions which would not materially and adversely
affect the ability of the Selling Stockholders to perform their respective obligations under the
Underwriting Agreement.
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 for 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 in 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.
44
SCHEDULE J-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; (ii) in the case only of
the Selling Stockholder, the memorandum and articles of association of each such Selling
Stockholder; or (iii) the resolutions passed by the Misys Shareholders as referred to at paragraph
2(n) above.
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.
45
ANNEX I
1. Secondary offering roadshow presentation, dated August 16, 2010
46