TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated
and the Merger and the other transactions contemplated by this Agreement may be
abandoned at any time prior to the Effective Time, notwithstanding any requisite
approval and adoption of this Agreement and the transactions contemplated by
this Agreement, as follows:
(a) by mutual written consent duly authorized by the Boards of
Directors of each of Parent and the Company;
(b) by either Parent or the Company if the Effective Time
shall not have occurred on or before September 30, 2000 (the
"Termination Date"); provided, however, that the right to terminate
this Agreement under this Section 8.01(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement
has been the cause of, or resulted in, the failure of the Effective
Time to occur on or before the Termination Date;
(c) by either Parent or the Company, if any Governmental
Entity (i) shall have issued an Order or taken any other action
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such Order or other
action shall have become final and nonappealable or (ii) shall have
failed to issue an Order or to take any other action necessary to
fulfill the conditions to the Closing of the Merger and such failure
of a request to issue such Order or take such other action shall have
become final and nonappealable;
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(d) by Parent if (i) the Company Board withdraws, modifies or
changes its recommendation of the Company Proposal in a manner adverse
to Parent or shall have resolved to do so, or (ii) the Company Board
shall have recommended to the stockholders of the Company a Company
Acquisition Proposal or shall have resolved to do so;
(e) by the Company, if (i) the Parent Board withdraws,
modifies or changes its recommendation of the Parent Proposal in a
manner adverse to the Company or shall have resolved to do so or (ii)
the Parent Board shall have recommended to the stockholders of Parent
a Parent Acquisition Proposal or shall have resolved to do so;
(f) by either Parent or the Company, if the Company Proposal
shall fail to receive the requisite vote at the Company Stockholders'
Meeting; provided, however, the right to terminate this Agreement
under this Section 8.01(f) shall not be available to the Company if
the failure to obtain the requisite vote shall have been caused by the
action or failure to act of the Company and such action or failure to
act constitutes a material breach by the Company of this Agreement;
(g) by either Parent or the Company, if the Parent Proposal
shall fail to receive the requisite vote at the Parent Stockholders'
Meeting; provided, however, the right to terminate this Agreement
under this Section 8.01(g) shall not be available to Parent if the
failure to obtain the requisite vote shall have been caused by the
action or failure to act of Parent and such action or failure to act
constitutes a material breach by Parent of this Agreement; or
(h) by either Parent or the Company, if the CareInsite Merger
Agreement is terminated in accordance with its terms.
SECTION 8.02. Effect of Termination. In the event of
termination of this Agreement pursuant to Section 8.01, this Agreement shall
forthwith become void and there shall be no liability under this Agreement on
the part of Parent or the Company or any of their respective officers or
directors and all rights and obligations of each party hereto shall cease,
except (a) as provided in Sections 8.05 and 9.01 and (b) nothing herein shall
relieve any party from liability for any willful breach of any representation,
warranty, covenant or other agreement in this Agreement occurring prior to
termination.
SECTION 8.03. Amendment. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; provided, however, that,
after the approval of the Company Proposal by the stockholders of the Company,
no amendment may be made which would reduce the amount or change the type of
consideration into which each share of Company Common Stock shall be converted
upon consummation of the Merger and provided further that the parties shall not
amend any provision of this Agreement without the prior written consent of the
special
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committee of CareInsite (which shall not be unreasonably withheld or delayed) if
such amendment could reasonably be expected to delay the consummation of the
CareInsite Merger or adversely affect CareInsite or its stockholders or would
change the Exchange Ratio.
SECTION 8.04. Waiver. At any time prior to the Effective Time,
any party hereto may (a) extend the time for the performance of any obligation
or other act of any other party hereto, (b) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any agreement or condition
contained herein; provided, however, that no such extension or waiver may be
granted without the prior written consent of the special committee of CareInsite
(which shall not be unreasonably withheld or delayed) if such extension or
waiver could reasonably be expected to delay the consummation of the CareInsite
Merger or adversely affect CareInsite or its stockholders or would change the
Exchange Ratio. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
SECTION 8.05. Expenses. (a) Except as set forth in this
Section 8.05, all Expenses (as defined below) incurred in connection with this
Agreement and the transactions contemplated by this Agreement shall be paid by
the party incurring such expenses, whether or not the Merger or any other
transaction is consummated, except that the Company and Parent each shall pay
one-half of all Expenses relating to printing, filing and mailing the
Registration Statement and the Proxy Statement, including all SEC and other
regulatory filing fees incurred in connection with the Registration Statement
and the Proxy Statement. "Expenses" as used in this Agreement shall include all
reasonable out-of-pocket expenses (including, without limitation, all fees and
expenses of counsel, accountants, investment bankers, experts and consultants to
a party hereto and its affiliates) incurred by a party or on its behalf in
connection with or related to the authorization, preparation, negotiation,
execution and performance of this Agreement, the preparation, printing, filing
and mailing of the Registration Statement and the Proxy Statement, the
solicitation of stockholder approvals, the filing of any required notices under
the HSR Act or other similar regulations and all other matters related to the
closing of the Merger and the other transactions contemplated by this Agreement.
(b) The Company agrees that:
(i) if (A) Parent shall terminate this Agreement pursuant to
Section 8.01(d) and (B) at the time of the occurrence of the
circumstance permitting termination pursuant to such Section, there
shall exist a Company Acquisition Proposal, or
(ii) if (A) Parent or the Company shall terminate this
Agreement pursuant to Section 8.01(f) due to the failure of the
Company's stockholders to approve this Agreement and (B) at the time
of such failure to so approve this Agreement there shall exist a
Company Acquisition Proposal,
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then the Company shall pay to Parent an amount equal to the sum of $200,000,000
(the "Company Alternative Transaction Fee") and all of Parent's Expenses;
provided, however, that Parent shall not, upon a termination pursuant to Section
8.01(d) by Parent or pursuant to Section 8.01(f) by Parent or the Company, be
entitled to receive the Company Alternative Transaction Fee or any of Parent's
Expenses pursuant to this Section 8.05(b) if the Company Board shall, prior to
such termination, have withdrawn, modified or changed its recommendation of this
Agreement or the transactions contemplated hereby in a manner adverse to Parent
due solely to a breach by Parent of any representation, warranty, covenant or
agreement on the part of Parent set forth in this Agreement, which breach is not
cured by Parent within 10 days following notice of such breach, and would cause
the conditions set forth in Sections 7.03(a) and 7.03(b) to not be satisfied.
(c) Parent agrees that:
(i) if (A) the Company shall terminate this Agreement pursuant
to Section 8.01(e) and (B) at the time of the occurrence of the
circumstance permitting termination pursuant to such Section, there
shall exist a Parent Acquisition Proposal, or
(ii) if (A) the Company or Parent shall terminate this
Agreement pursuant to Section 8.01(g) due to the failure of Parent's
stockholders to approve the Parent Proposal and (B) at the time of
such failure to so approve this Agreement there shall exist a Parent
Acquisition Proposal,
then Parent shall pay to the Company an amount equal to the sum of $130,000,000
(the "Parent Alternative Transaction Fee") and all of the Company's Expenses;
provided, however, that the Company shall not, upon a termination pursuant to
Section 8.01(e) by the Company or pursuant to Section 8.01(g) by the Company or
Parent, be entitled to receive the Parent Alternative Transaction Fee or any of
the Company's Expenses pursuant to this Section 8.05(c) if the Parent Board
shall, prior to such termination, have withdrawn, modified or changed its
recommendation of this Agreement or the transactions contemplated hereby in a
manner adverse to the Company due solely to a breach by the Company of any
representation, warranty, covenant or agreement on the part of the Company set
forth in this Agreement, which breach is not cured by the Company within 10 days
following notice of such breach, and would cause the conditions set forth in
Sections 7.02(a) and 7.02(b) to not be satisfied.
(d) Each of the Company and Parent agrees that the agreements
contained in Sections 8.05(b) and (c) are an integral part of the transactions
contemplated by this Agreement. Each of the Company and Parent agrees that the
payments provided for in Sections 8.05(b) and (c) shall be the sole and
exclusive remedies of the parties upon a termination of this Agreement pursuant
to Sections 8.01(d), (e), (f) and (g), as the case may be, and such remedies
shall be limited to the sums stipulated in Sections 8.05(b) and (c), regardless
of the circumstances giving rise to such termination; provided, however, that
nothing herein shall relieve any party from
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liability for any willful breach of any representation, warranty, covenant or
other agreement in this Agreement occurring prior to termination.
(e) Any payment of a Company Alternative Transaction Fee
required to be made pursuant to Section 8.05(b) shall be made to Parent not
later than two (2) business days after termination of this Agreement. Payment of
Expenses pursuant to Section 8.05(b) shall be made not later than two (2)
business days after delivery to the Company by Parent of notice of demand for
payment and an itemization setting forth in reasonable detail all Expenses of
Parent (which itemization may be supplemented and updated from time to time by
Parent until the 60th day after Parent delivers such notice of demand for
payment). All payments to Parent under this Section 8.05 shall be made by wire
transfer of immediately available funds to an account designated by Parent.
(f) Any payment of a Parent Alternative Transaction Fee
required to be made pursuant to Section 8.05(c) shall be made to the Company not
later than two business days after termination of this Agreement. Payment of
Expenses pursuant to Section 8.05(c) shall be made not later than two business
days after delivery to Parent by the Company of notice of demand for payment and
an itemization setting forth in reasonable detail all Expenses of the Company
(which itemization may be supplemented and updated from time to time by the
Company until the 60th day after the Company delivers such notice of demand for
payment). All payments to the Company under this Section 8.05 shall be made by
wire transfer of immediately available funds to an account designated by the
Company.
(g) In the event that the Company or Parent, as the case may
be, shall fail to pay any amount payable pursuant to this Section 8.05 when due,
the other party's "Expenses" shall be deemed to include (i) the costs and
expenses actually incurred or accrued by such other party (including, without
limitation, fees and expenses of counsel) in connection with the collection
under and enforcement of this Section 8.05, together with (ii) interest on such
unpaid amounts, commencing on the date that such amounts became due, at a rate
equal to the rate of interest publicly announced by Citibank, N.A., from time to
time, in The City of New York, as such bank's Base Rate plus 2.00%. |
