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EXHIBIT 2.1
AGREEMENT AND PLAN OF DISTRIBUTION
This AGREEMENT AND PLAN OF DISTRIBUTION (this "Agreement"), is dated as
of February 21, 2001, by and between InfoCure Corporation, a Delaware
corporation ("InfoCure"), and PracticeWorks, Inc., a Delaware corporation
("PracticeWorks") and, prior to the Distribution (as defined herein), an
indirect wholly owned subsidiary of InfoCure.
WHEREAS, PracticeWorks is a wholly owned subsidiary of InfoCure
Systems, Inc., a Georgia corporation ("ISI"), which is a wholly owned
subsidiary of InfoCure;
WHEREAS, PracticeWorks Systems, LLC, a Georgia limited liability
company ("PracticeWorks Systems"), is currently a wholly owned subsidiary of
ISI;
WHEREAS, InfoCure provides information management technology for
physician practices, and the conduct of such other activities as may be
incidental or related thereto;
WHEREAS, the Board of Directors and the sole shareholder of ISI have
approved the merger of ISI with and into InfoCure (the "ISI Merger");
WHEREAS, following the ISI Merger, InfoCure intends to transfer or
cause to be transferred to PracticeWorks Systems all of the assets held directly
by InfoCure and used in the PracticeWorks Business (as defined herein) in
exchange for 100% of the membership interests therein;
WHEREAS, following such transfer, InfoCure intends to transfer all of
its interest in PracticeWorks Systems and the stock of certain corporate
subsidiaries of InfoCure to PracticeWorks in exchange for all of the issued and
outstanding shares of common stock, par value $0.01 per share, of PracticeWorks
(the "PracticeWorks Common Stock");
WHEREAS, the Board of Directors of InfoCure has authorized the
distribution to the holders of the issued and outstanding shares of common
stock, par value $.001 per share, of InfoCure (the "InfoCure Common Stock") as
of such date as may be determined by the Board of Directors of InfoCure, or such
committee of such Board of Directors as shall be designated by the Board of
Directors of InfoCure, as the date (the "Distribution Record Date") as of which
the distribution of all of the issued and outstanding PracticeWorks Common Stock
shall be effected, on the basis of 1/4 of a share of PracticeWorks Common Stock
for each share of InfoCure Common Stock (the "Distribution");
WHEREAS, InfoCure and PracticeWorks intend that the transfers of assets
to PracticeWorks, followed by the Distribution, shall constitute a
"reorganization" qualifying under Section 368(a)(1)(D) of the Code and that the
Distribution shall qualify for nonrecognition treatment to InfoCure's
shareholders under Section 355 of the Code;
WHEREAS, the parties hereto have determined to set forth the principal
corporate and other transactions required to effect the Distribution and to set
forth other agreements that will govern certain other matters prior to and
following the Distribution.
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, provisions and covenants contained herein, and for other good and
valuable consideration, the receipt and legal sufficiency whereof are hereby
acknowledged, the parties hereto further agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 GENERAL. Unless otherwise defined herein or unless the
context otherwise requires, as used in this Agreement, the following terms shall
have the following meanings:
"Action" shall mean any demand, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental
Authority or any arbitration or mediation tribunal.
"Affiliate" shall mean, when used with respect to any
specified Person, a Person that directly or indirectly controls, is
controlled by, or is under common control with such specified Person;
provided, however, that for purposes of this Agreement, any Person who
was a member of both Groups prior to the Distribution shall be deemed
to be an Affiliate only of the Group of which such Person is a member
following the Distribution. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether
through the ownership of voting securities or other interests, by
contract or otherwise. Any contrary provision of this Agreement
notwithstanding, neither InfoCure nor any of its Subsidiaries shall be
deemed to be an Affiliate of PracticeWorks.
"Agent" shall have the meaning set forth in Section 2.1(g) of
this Agreement.
"Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Agreement Disputes" shall have the meaning set forth in
Section 7.1 of this Agreement.
"AMEX" shall have the meaning set forth in Section 2.1(n) of
this Agreement.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, understandings, assignments or other
arrangements (other than this Agreement) entered into by the parties
hereto or any other member of their respective Groups in connection
with the transactions contemplated hereby, including, but not limited
to, the Employee Benefits and Compensation Allocation Agreement, the
Tax Disaffiliation Agreement, the Transition Services Agreement and the
Intellectual Property License Agreements.
"Applicable Rate" shall mean the rate of interest per annum
announced from time to time by SunTrust Bank, N.A. as its prime lending
rate.
"APS" shall mean Applied Professional Systems, Inc., a
Delaware corporation.
"Assignee" shall have the meaning set forth in Section 2.1(i)
of this Agreement.
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"Assumed Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary Agreement (or
the Schedules hereto or thereto), including, without
limitation, those Liabilities listed on Schedule 2.1 hereto,
as Liabilities to be assumed by PracticeWorks or any member of
the PracticeWorks Group, and all agreements, obligations and
Liabilities of any member of the PracticeWorks Group under
this Agreement or any of the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities which are specifically covered by
the Tax Disaffiliation Agreement and the Employee Benefits
Compensation and Allocation Agreement, respectively),
primarily relating to, arising out of or resulting from:
(A) the operation of the PracticeWorks
Business or any part thereof, or any actions taken or
business conducted by the PracticeWorks Group
(including any discontinued business or any business
which has been sold or transferred), as conducted at
any time prior to, on or after the Distribution Date;
(B) any agreement for the purchase or
sale of any part of the PracticeWorks Business; or
(C) any Included Assets, whether
arising before, on or after the Distribution Date;
and
(iii) all Liabilities reflected as liabilities or
obligations on the PracticeWorks Pro Forma Balance Sheet or
the accounting records supporting such balance sheet, and all
Liabilities arising or assumed after the date of such balance
sheet which, had they arisen or been assumed on or before such
date and been retained as of such date, would have been
required to be reflected on such balance sheet and/or in the
footnotes to such balance sheet in accordance with generally
accepted accounting principles, subject to any discharge of
such Liabilities subsequent to the date of the PracticeWorks
Pro Forma Balance Sheet.
Notwithstanding the foregoing, the Assumed Liabilities shall
not include: (i) any Liabilities that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the Schedules hereto or
thereto) as Liabilities to be retained or assumed by InfoCure or any
member of the InfoCure Group or (ii) all agreements and obligations of
any member of the InfoCure Group under this Agreement or any of the
Ancillary Agreements.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which commercial banking institutions located in
Atlanta, Georgia are authorized or obligated by law or executive order
to close.
"CADI" shall mean CADI Acquisition Corporation, a Colorado
corporation.
"Claims Administration" shall mean the processing of claims
made under the InfoCure Shared Policies, including the reporting of
claims to the insurance carriers,
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management and defense of claims and providing for appropriate releases
upon settlement of claims.
"Code" shall have the meaning set forth in the recitals to
this Agreement.
"Commission" shall mean the Securities and Exchange
Commission.
"Contracts" shall mean all license agreements, leases of
personal property, open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the manufacture and sale of
products and other contracts, agreements or commitments.
"Crescent Investment" shall mean the transactions contemplated
by (i) the Stock Purchase Agreement by and between Crescent
International Ltd. and PracticeWorks relating to the issuance and sale
of PracticeWorks' series C convertible redeemable preferred stock and
(ii) the Stock Purchase Agreement by and between Crescent International
Ltd. and PracticeWorks establishing an equity line for the purchase and
sale of PracticeWorks Common Stock.
"Customer" shall have the meaning set forth in Section 2.9.
"DataTrac" shall mean DataTrac Service Corporation, a Kansas
corporation.
"Dentsply Acquisition" shall mean the transactions
contemplated by the Contribution Agreement made as of December 27, 2000
by and among InfoCure, PracticeWorks, Dentsply International Inc.,
Ceramco, Inc. and SoftDent LLC.
"Distribution" shall have the meaning set forth in the
recitals to this Agreement.
"Distribution Date" shall mean such date as may be determined
by the Board of Directors of InfoCure, or such committee of such Board
of Directors as shall be designated by the Board of Directors of
InfoCure, as the date as of which the Distribution shall be effected.
"Distribution Record Date" shall have the meaning set forth in
the recitals to this Agreement.
"Effective Time" shall mean 11:59 p.m., Atlanta, Georgia time,
on the Distribution Date.
"Employee Benefits and Compensation Allocation Agreement"
shall mean the Employee Benefits and Compensation Allocation Agreement
by and between InfoCure and PracticeWorks, which agreement shall be
entered into prior to or on the Distribution Date in the form attached
hereto as Exhibit B.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
principles of common law, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions (including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 9601, ET SEQ.), whether now or hereafter in existence,
relating to the environment, natural resources, human health or safety,
endangered or threatened species of fish, wildlife and plants, or to
emissions, discharges or releases of pollutants, contaminant, petroleum
or petroleum
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products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment (including without limitation indoor or
outdoor air, surface water, groundwater and surface or subsurface
soils), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the
investigation, cleanup or other remediation thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, together with the rules and regulations promulgated
thereunder.
"FINOVA Loan Agreements" shall mean the PracticeWorks Loan
Agreement and the InfoCure Loan Agreement.
"Governmental Authority" shall mean any federal, state, local,
foreign or international court, government, department, commission,
board, bureau, agency, official, Nasdaq or other regulatory,
administrative or governmental authority.
"Group" shall mean with respect to InfoCure, the InfoCure
Group and, with respect to PracticeWorks, the PracticeWorks Group.
"Included Assets" shall mean all of the rights, properties,
assets, claims, contracts and businesses of every kind, character and
description, whether tangible or intangible, whether real, personal or
mixed, whether accrued, contingent or otherwise, and wherever located,
owned or held (including, without limitation, the assets listed on
Schedule 2.1 attached hereto and, with respect to insurance, as set
forth in Article VIII hereto) primarily relating to, or used primarily
in connection with, the operation of the PracticeWorks Business as
conducted on the Distribution Date.
"Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including
reasonable attorneys' fees and any and all out-of-pocket expenses)
reasonably incurred in investigating, preparing for or defending
against any Actions or potential Actions or in settling any Action or
potential Action or in satisfying the judgment, fine or penalty
rendered in or resulting from any Action.
"Indemnifying Party" shall have the meaning set forth in
Section 3.3(a).
"Indemnitee" shall have the meaning set forth in Section
3.3(a).
"InfoCure" shall have the meaning set forth in the preamble to
this Agreement.
"InfoCure Australia" shall mean InfoCure Australia Pty.
Limited, an Australian corporation.
"InfoCure Business" shall mean each and every business
conducted at any time by InfoCure or any subsidiary controlled by
InfoCure, except the PracticeWorks Business.
"InfoCure Common Stock" shall have the meaning set forth in
the recitals to this Agreement.
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"InfoCure Group" shall mean InfoCure and each Person (other
than any member of the PracticeWorks Group) that is an InfoCure
Subsidiary.
"InfoCure Indemnitee" shall mean:
(i) InfoCure and each Affiliate thereof after
giving effect to the Intercompany Agreements and the
Distribution; and
(ii) each of the respective past, present and
future directors, officers, members, employees and agents of
any of the entities described in the immediately preceding
clause (i) and each of the heirs, executors and assigns of any
of such directors, officers, members, employees and agents.
"InfoCure Liabilities" shall mean, collectively, all
obligations and Liabilities of InfoCure or any InfoCure Subsidiary
after giving effect to the Intercompany Agreements (including, without
limitation, the obligations of InfoCure under Section 9.3 of the
Contribution Agreement made as of December 27, 2000 by and among
InfoCure, PracticeWorks, Dentsply International, Inc., Ceramco Inc. and
SoftDent LLC), except the Assumed Liabilities and as except as set
forth in Section 2.3.
"InfoCure Loan Agreement" shall have the meaning set forth in
Section 9.23 of this Agreement.
"InfoCure Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of InfoCure or any
InfoCure Subsidiary which provide coverage for the PracticeWorks
Business, other than PracticeWorks Policies.
"InfoCure Subsidiary" shall mean each Subsidiary of InfoCure
other than PracticeWorks and the PracticeWorks Group.
"Insurance Administration" shall mean, with respect to each
InfoCure Shared Policy, the accounting for premiums,
retrospectively-rated premiums, defense costs, indemnity payments,
deductibles and retentions, as appropriate, under the terms and
conditions of each of the InfoCure Shared Policies; and the reporting
to excess insurance carriers of any losses or claims which may cause
the per-occurrence, per claim or aggregate limits of any InfoCure
Shared Policy to be exceeded, and the distribution of Insurance
Proceeds as contemplated by this Agreement.
"Insurance Proceeds" shall mean those monies (i) received by
an insured from an insurance carrier or (ii) paid by an insurance
carrier on behalf of an insured.
"Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and
conditions of any of the InfoCure Shared Policies, whether or not
subject to deductibles, co-insurance, uncollectibility or
retrospectively-rated premium adjustments.
"Intellectual Property License Agreements" shall,
collectively, mean each of the Intellectual Property License Agreements
by and between InfoCure and PracticeWorks, which Agreements shall be
entered into prior to or on the Distribution Date in the forms attached
hereto as Exhibit F and Exhibit G.
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"Intercompany Agreements" shall mean, collectively, this
Agreement and the Ancillary Agreements.
"ISI" shall have the meaning set forth in the recitals to this
Agreement.
"Law" shall mean all laws, statutes and ordinances and all
regulations, rules and other pronouncements of Governmental Authorities
having the effect of law of the United States, any foreign country, or
any domestic or foreign state, province, commonwealth, city, country,
municipality, territory, protectorate, possession or similar
instrumentality, or any Governmental Authority thereof.
"Liabilities" shall mean any and all debts, liabilities,
obligations, responsibilities, response actions, losses, damages
(whether compensatory, punitive or treble), fines, penalties and
sanctions, absolute or contingent, matured or unmatured, liquidated or
unliquidated, foreseen or unforeseen, joint, several or individual,
asserted or unasserted, accrued or unaccrued, known or unknown,
whenever arising, including without limitation those arising under or
in connection with any Law (including any Environmental Law), Action,
threatened Action, order or consent decree of any Governmental
Authority or any award of any arbitration tribunal, and those arising
under any contract, guarantee, commitment or undertaking, whether
sought to be imposed by a Governmental Authority, private party, or
party to this Agreement, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, or
otherwise, and including any costs, expenses, interest, attorneys'
fees, disbursement and expense of counsel, expert and consulting fees
and costs related thereto or to the investigation or defense thereof.
"Medy Acquisition" shall mean the transactions contemplated by
the Second Amended and Restated Agreement and Plan of Reorganization by
and among InfoCure, Medical Dynamics, Inc., and CADI Acquisition
Corporation dated as of October 10, 2000, as amended.
"Notices" shall have the meaning set forth in Section 9.4 of
this Agreement.
"Nonsolicitation Period" shall mean the period from the date
of this Agreement until three years after the Effective Time.
"Person" shall mean any natural person, corporation, business
trust, limited liability company, joint venture, association, company,
partnership or government, or any agency or political subdivision
thereof.
"Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or
contracts), including primary, excess and umbrella policies, master
comprehensive general liability policies, director and officer
liability, fiduciary liability, automobile, aircraft, property and
casualty, workers' compensation and employee dishonesty insurance
policies, bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges
thereunder.
"PracticeWorks" shall have the meaning set forth in the
preamble to this Agreement.
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"PracticeWorks Business" shall mean the business of providing
practice management applications and related services to the dental,
orthodontic and oral and maxillofacial surgery businesses of InfoCure,
including the stock of certain wholly owned subsidiaries of InfoCure,
certain intellectual property and related research and development
assets, as well as certain rights to future revenues and tangible
assets, including cash, in each case to the extent primarily related to
such businesses.
"PracticeWorks Common Stock" shall have the meaning set forth
in the recitals to this Agreement.
"PracticeWorks Group" shall mean PracticeWorks, the
PracticeWorks Subsidiaries and the corporations, partnerships and other
entities which are contemplated to remain or become a Subsidiary of
PracticeWorks in connection with the Intercompany Agreements and the
Distribution.
"PracticeWorks Indemnitee" shall mean:
(ii) PracticeWorks and each Affiliate thereof
after giving effect to the Intercompany Agreements and the
Distribution; and
(ii) each of the respective past, present and
future directors, officers, members, employees and agents of
any of the entities described in the immediately preceding
clause (i) and each of the heirs, executors and assigns of any
of such directors, officers, members, employees and agents.
"PracticeWorks Loan Agreement" shall have the meaning set
forth in Section 9.23 of this Agreement.
"PracticeWorks Pro Forma Balance Sheet" shall mean the
combined pro forma balance sheet of the PracticeWorks Group, including
the notes thereto, as of January 31, 2001, which includes as its only
assets the Included Assets and as its only liabilities the Assumed
Liabilities, and which has been prepared in accordance with generally
accepted accounting principles, a copy of which is attached hereto as
Exhibit E.
"PracticeWorks Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of InfoCure or any
InfoCure Subsidiary, which relate specifically to the PracticeWorks
Business but do not relate to the InfoCure Business, and which Policies
are either maintained by PracticeWorks or a member of the PracticeWorks
Group or assignable to PracticeWorks or a member of the PracticeWorks
Group.
"PracticeWorks Subsidiary" shall mean each Subsidiary of
PracticeWorks.
"Prospectus" shall mean the Prospectus filed with the
Commission as part of the Registration Statement and mailed to the
holders of shares of InfoCure Common Stock in connection with the
Distribution, including any amendments or supplements thereto.
"Records" shall have the meaning set forth in Section 6.2 of
this Agreement.
"Registration Statement" shall mean the registration statement
on Form S-1 filed with the Commission to effect the registration of the
PracticeWorks Common Stock issued in the Distribution pursuant to the
Securities Act.
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"Representative" shall mean, with respect to any Person, any
of such Person's directors, officers, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
"Restricted Period" shall mean the period from the date of
this Agreement until three years after the Effective Time.
"Rules" shall have the meaning set forth in Section 7.3 of
this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated
thereunder.
"Subsidiary" shall mean with respect to any specified Person,
any corporation or other legal entity of which such Person or any of
its Subsidiaries controls or owns, directly or indirectly, more than
50% of the stock or other equity interest entitled to vote on the
election of members to the board of directors or similar governing
body.
"Swenam" shall mean Swenam Holdings B.V., a Netherlands
corporation.
"Tax" shall have the meaning set forth in the Tax
Disaffiliation Agreement.
"Tax Disaffiliation Agreement" shall mean the Tax
Disaffiliation Agreement by and between InfoCure and PracticeWorks,
which agreement shall be entered into prior to or on the Distribution
Date in the form attached hereto as Exhibit C.
"Technos" shall mean Technos Corporation, a New Hampshire
corporation.
"Third Party" shall mean a Person who is not a party hereto or
a Subsidiary thereof.
"Third Party Claim" shall have the meaning set forth in
Section 3.3(a) of this Agreement.
"Transition Services Agreement" shall mean the Transition
Services Agreement by and between InfoCure and PracticeWorks, which
agreement shall be entered into prior to or on the Distribution Date in
the form attached hereto as Exhibit D.
SECTION 1.2 REFERENCE; INTERPRETATION. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation." Unless the context otherwise
requires, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement. Unless the context otherwise requires, the
words "hereof", "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement. Neither this Agreement nor any
Ancillary Agreement shall be construed against either party as the principal
draftsperson hereof or thereof.
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ARTICLE II.
DISTRIBUTION AND OTHER TRANSACTIONS;
CERTAIN COVENANTS
SECTION 2.1 THE DISTRIBUTION AND OTHER TRANSACTIONS.
(a) Mergers of APS, Technos and DataTrac. Upon and
subject to the terms and conditions of this Agreement, on or prior to the
Distribution Date and before the transactions described in Sections 2.1(b), (c),
(d), and (e), ISI shall cause each of APS, Technos and DataTrac to merge with
and into ISI, with ISI being the surviving corporation in such mergers.
(b) ISI Merger. Upon and subject to the terms and
conditions of this Agreement, on or prior to the Distribution Date and before
the transactions described in Sections 2.1(c), (d), and (e), ISI shall merge
with and into InfoCure.
(c) Transfer of Included Assets by InfoCure to
PracticeWorks Systems in Exchange for Interests in PracticeWorks Systems. Upon
and subject to the terms and conditions of this Agreement, on or prior to the
Distribution Date and prior to the transactions described in Sections 2.1(d) and
(e) below, InfoCure shall make a contribution to the capital of PracticeWorks
Systems by assigning, agreeing to assign, transferring, conveying and delivering
to PracticeWorks Systems all of its right, title and interest in the Included
Assets owned by InfoCure (which shall have been acquired as a result of the ISI
Merger). In connection with the transfers by InfoCure to PracticeWorks Systems,
the parties shall execute a Xxxx of Sale substantially in the form attached
hereto as Exhibit A. In consideration for the transfer of the Included Assets
pursuant to this Section 2.1(c), PracticeWorks Systems shall issue and deliver
to InfoCure a certificate or certificates registered in the name of InfoCure
representing all of the membership interests in PracticeWorks Systems on the day
immediately preceding the Distribution Date. Such membership interest in
PracticeWorks Systems shall be validly issued, fully paid and nonassessable and
free of any preemptive (or similar) rights.
(d) Capital Contribution by InfoCure to PracticeWorks.
Upon and subject to the terms and conditions of this Agreement, on or prior to
the Distribution Date and prior to the transactions described in Section 2.1(e)
below, InfoCure shall make a contribution to the capital of PracticeWorks by
assigning, agreeing to assign, transferring, conveying and delivering to
PracticeWorks all of its right, title and interest in the membership interests
in PracticeWorks Systems and the stock of CADI, Swenam and InfoCure Australia.
In consideration for the transfers to PracticeWorks pursuant to this Section
2.1(d), PracticeWorks shall issue and deliver to InfoCure a certificate or
certificates registered in the name of InfoCure representing all of the issued
and outstanding shares of PracticeWorks Common Stock on the day immediately
preceding the Distribution Date. Each share of PracticeWorks Common Stock
delivered by PracticeWorks to InfoCure shall be validly issued, fully paid and
nonassessable and free of any preemptive (or similar) rights. PracticeWorks
hereby represents and warrants that, as a result of the issuance of stock
described in this Section 2.1(d), InfoCure will own all of the outstanding
shares of PracticeWorks Common Stock.
(e) Distribution. The following transactions shall occur
on the Distribution Date in order to effect the Distribution:
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(i) InfoCure shall deliver to InfoCure's stock
transfer agent (the "Agent") the share certificates
representing the PracticeWorks Common Stock received by
InfoCure pursuant to Section 2.1(d), all of which are to be
issued in the Distribution. Such share certificates shall be
endorsed by InfoCure in blank, for the benefit of the holders
of InfoCure Common Stock. InfoCure shall instruct the Agent to
distribute, on or as soon as practicable following the
Distribution Date, the PracticeWorks Common Stock to holders
of record of shares of InfoCure Common Stock on the
Distribution Record Date as further contemplated by the
Prospectus and hereby. PracticeWorks shall provide any share
certificates or other documentation that the Agent shall
require in order to effect the Distribution.
(ii) The PracticeWorks Common Stock issued in the
Distribution will be distributed by delivery of physical
certificates representing the shares of PracticeWorks Common
Stock to be issued in the Distribution. InfoCure shall
instruct the Agent to deliver the PracticeWorks Common Stock
previously delivered to the Agent pursuant to Section
2.1(e)(i) to a depositary and to mail to each holder of record
of InfoCure Common Stock on the Distribution Record Date,
physical certificates representing the whole number of shares
of PracticeWorks Common Stock credited to such holder's
account. The Agent will issue certificates only for whole
numbers of PracticeWorks Common Stock. Cash will be given to
holders of fractional shares of InfoCure Common Stock at the
time of the Distribution in lieu of any fractional shares of
PracticeWorks Common Stock. The Agent will aggregate all
fractional shares of PracticeWorks Common Stock into whole
shares of PracticeWorks Common Stock and sell the whole shares
of PracticeWorks Common Stock obtained thereby in the open
market at then prevailing prices as soon as practicable after
the Distribution on behalf of holders who would otherwise be
entitled to receive such fractional share interests and will
distribute to each such holder such holder's ratable share of
the proceeds of such sale, net of brokerage commissions
incurred in such sales, as soon as practicable after the
Distribution.
(f) Charter; Bylaws. On or prior to the Distribution
Date, PracticeWorks and InfoCure shall have taken all necessary actions to
provide for the adoption of the form of Certificate of Incorporation and Bylaws
of PracticeWorks, in substantially the form filed by PracticeWorks with the
Commission as exhibits to the Registration Statement.
(g) Directors. On or prior to the Distribution Date,
InfoCure and PracticeWorks shall have taken all necessary action to cause the
Board of Directors of PracticeWorks to consist of the individuals identified in
the Prospectus as directors of PracticeWorks.
(h) Certain Licenses and Permits. Without limiting the
generality of the obligations set forth in Sections 2.1(a) through (e) above, on
or prior to the Distribution Date or as soon as reasonably practicable
thereafter:
(i) InfoCure shall use its commercially
reasonable efforts to transfer or cause to be transferred all
transferable licenses, permits and authorizations issued by
any Governmental Authority which relate primarily to the
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PracticeWorks Business but which are held in the name of any
member of the InfoCure Group, or in the name of any employee,
officer, director, stockholder or agent of any such member, or
otherwise, on behalf of a member of the PracticeWorks Group to
the appropriate member of the PracticeWorks Group; and
(ii) PracticeWorks shall use its commercially
reasonable efforts to transfer or cause to be transferred all
transferable licenses, permits and authorizations issued by
Governmental Authorities which do not relate primarily to the
PracticeWorks Business but which are held in the name of any
member of the PracticeWorks Group, or in the name of any
employee, officer, director, stockholder, or agent of any such
member, or otherwise, on behalf of a member of the InfoCure
Group to the appropriate member of the InfoCure Group.
(iii) Notwithstanding anything in this Agreement
to the contrary, this Agreement shall not constitute an
agreement to assign any license, permit or authorization
contemplated in this Section 2.1(h), in whole or in part, or
any rights thereunder if the agreement to assign or attempt to
assign, without the consent of a Third Party, would constitute
a breach thereof or in any way adversely affect the rights of
the assignor or Assignee thereof. Until such consent is
obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of any party
hereto so that the intended Assignee would not, in fact,
receive all such rights, the parties will cooperate with each
other in any arrangement designed to provide the intended
Assignee the benefits of, and to permit the intended Assignee
to assume liabilities under, any such license, permit or
authorization.
(i) Transfer and Assignment of Certain Agreements.
Without limiting the generality of the obligations set forth in Sections 2.1(a)
through (e) above:
(i) InfoCure hereby agrees that on or prior to
the Distribution Date or as soon as reasonably practicable
thereafter, subject to the limitations set forth in this
Section 2.1(i), it will, and it will cause each member of the
InfoCure Group to, assign, transfer and convey to the
appropriate member of the PracticeWorks Group all of
InfoCure's or such member of the InfoCure Group's respective
right, title and interest in and to any and all Contracts that
relate primarily to the PracticeWorks Business.
(ii) PracticeWorks hereby agrees that on or prior
to the Distribution Date or as soon as reasonably practicable
thereafter, subject to the limitations set forth in this
Section 2.1(i), it will, and it will cause each member of the
PracticeWorks Group to, assign, transfer and convey to the
appropriate member of the InfoCure Group all of PracticeWorks'
or such member of the PracticeWorks Group's respective right,
title and interest in and to any and all Contracts that do not
relate primarily to the PracticeWorks Business.
(iii) Subject to the provisions of this Section
2.1(i), any agreement to which any of the parties hereto or
any of their Subsidiaries is a party that inures to the
benefit of more than one of the InfoCure Business and
PracticeWorks
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Business shall be assigned in part so that each party hereto
shall be entitled to the rights and benefits inuring to its
business under such agreement.
(iv) The assignee of any agreement assigned, in
whole or in part, hereunder (an "Assignee") shall assume and
agree to pay, perform, and fully discharge all obligations of
the assignor under such agreement or, in the case of a partial
assignment under paragraph (iii), such Assignee's related
portion of such obligations as determined in accordance with
the terms of the relevant agreement, where determinable on the
face thereof, and otherwise as determined in accordance with
the practice of the parties prior to the Distribution; and the
Assignee agrees to indemnify and hold harmless the assignor
from and against all Liabilities relating to such agreements
to the full extent of the applicable indemnification
objections in Article III.
(v) Notwithstanding anything in this Agreement
to the contrary, this Agreement shall not constitute an
agreement to assign any agreement or Contract, in whole or in
part, or any rights thereunder if the agreement to assign or
attempt to assign, without the consent of a Third Party, would
constitute a breach thereof or in any way adversely affect the
rights of the assignor or Assignee thereof. Until such consent
is obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of any party
hereto so that the intended Assignee would not, in fact,
receive all such rights, the parties will cooperate with each
other in any arrangement designed to provide the intended
Assignee the benefits of, and to permit the intended Assignee
to assume liabilities under, any such agreement or Contract.
(j) Consents. The parties hereto shall use their
commercially reasonable efforts to obtain required consents to transfer and/or
assignment of licenses, permits and authorizations of Governmental Authorities
and consents to transfer and/or assignment of Contracts from Third Parties.
(k) Cooperation. Each of InfoCure and PracticeWorks shall
take all actions necessary to execute any and all documents as may be reasonably
requested by the other party from time to time (i) to transfer the assets
referenced in Sections 2.1(a) through (e) hereof and listed on Schedule 2.1
hereto and otherwise fully vest or perfect in PracticeWorks all right, title and
interest in and to such assets assigned pursuant to this Agreement; and (ii) to
transfer any of the Assumed Liabilities to PracticeWorks.
(l) Election of Officers. On or prior to the Distribution
Date, PracticeWorks shall take all actions necessary and desirable so that as of
the Distribution Date the officers of PracticeWorks will be as set forth in the
Prospectus.
(m) State Securities Laws. Prior to the Distribution
Date, InfoCure and PracticeWorks shall take all such action as may be necessary
or appropriate under the securities or blue sky laws of states or other
political subdivisions of the United States in order to effect the Distribution.
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(n) Listing Application; Notice to the American Stock
Exchange.
(i) Prior to the Distribution Date, InfoCure and
PracticeWorks shall prepare and file with the American Stock
Exchange ("AMEX") a listing application and related documents
and shall take all such other actions with respect thereto as
shall be necessary or desirable in order to cause AMEX to list
on or prior to the Distribution Date, subject to official
notice of issuance, the PracticeWorks Common Stock.
(ii) Prior to the Distribution Date, InfoCure
shall, to the extent possible, give The Nasdaq National Market
not less than ten days advance notice of the Distribution
Record Date in compliance with Rule 10b-17 under the Exchange
Act.
(o) Other Transactions. On or prior to the Distribution
Date, the parties hereto shall have consummated those other transactions in
connection with the Intercompany Agreements and the Distribution that are
contemplated by the Prospectus and not specifically referred to in this Section
2.1.
SECTION 2.2 FURTHER ASSURANCES. Following the Distribution Date,
InfoCure shall from time to time thereafter at PracticeWorks' request and
without further consideration, execute and deliver to PracticeWorks such
instruments of transfer, conveyance and assignment in addition to those
delivered pursuant to Section 2.1 hereof as PracticeWorks shall request to
transfer, convey and assign more effectively the Included Assets; provided,
however, that such instruments shall not change or expand the obligations of the
parties hereunder. Similarly, following the Distribution Date, PracticeWorks
shall from time to time thereafter at InfoCure's request and without further
consideration execute and deliver to InfoCure such instruments of assumption in
addition to the Xxxx of Sale delivered pursuant to Section 2.1 hereof as
InfoCure shall request to evidence more fully PracticeWorks' assumption of the
Assumed Liabilities; provided, however, that such instruments shall not change
or expand the obligations of the parties hereunder.
SECTION 2.3 LIABILITIES IN THE REGISTRATION STATEMENT. For
purposes of this Agreement, including Article III hereof, InfoCure and
PracticeWorks agree that (i) any and all Liabilities arising from or based upon
misstatements in or omissions from the portions of the Registration Statement or
the Prospectus set forth on Schedule 2.3 to this Agreement (but only insofar as
such information relates to InfoCure or the terms of the Distribution) shall be
deemed to be InfoCure Liabilities and not Assumed Liabilities and (ii) any and
all Liabilities arising from or based upon misstatements in or omissions from
the Registration Statement or the Prospectus other than those set forth on
Schedule 2.3 shall be deemed to be Assumed Liabilities and not InfoCure
Liabilities.
SECTION 2.4 ASSUMPTION AND SATISFACTION OF LIABILITIES. Except as
otherwise specifically set forth in any Ancillary Agreement, from and after the
Effective Time, (i) InfoCure shall, and shall cause each member of the InfoCure
Group to, assume, pay, perform and discharge all InfoCure Liabilities in the
ordinary course of business, consistent with past practice and (ii)
PracticeWorks shall, and shall cause each member of the PracticeWorks Group, to
assume, pay, perform and discharge all Assumed Liabilities in the ordinary
course of business, consistent with past practice. To the extent reasonably
requested to do so by another party
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hereto, each party hereto agrees to execute and deliver such documents, in a
form reasonably satisfactory to such party, as may be reasonably necessary to
evidence the assumption of any Liabilities hereunder.
SECTION 2.5 RESIGNATIONS. InfoCure shall cause all its
employees to resign, effective as of the Effective Time, from all positions as
officers or directors of any member of the PracticeWorks Group in which they
serve, and PracticeWorks shall cause all its employees to resign, effective as
of the Effective Time, from all positions as officers or directors of any
members of the InfoCure Group in which they serve.
SECTION 2.6 ACCOUNT RECONCILIATION. To the extent any revenues
are received by InfoCure after the Effective Time which are attributable to
Included Assets or the PracticeWorks Business, InfoCure shall make a lump-sum
payment without interest to PracticeWorks on a quarterly basis thereafter. To
the extent any revenues are received by PracticeWorks after the Effective Time
which are attributable to the InfoCure Business, PracticeWorks shall make a
lump-sum payment without interest to InfoCure on a quarterly basis thereafter.
SECTION 2.7 ANCILLARY AGREEMENTS. On or prior to the Distribution
Date, each of InfoCure and PracticeWorks shall enter into, and/or (where
applicable) shall cause members of their respective Groups to enter into, the
Ancillary Agreements and any other agreements in respect of the Distribution
reasonably necessary or appropriate in connection with the transactions
contemplated hereby and thereby.
SECTION 2.8 CORPORATE NAMES. Except as otherwise specifically
provided in any Ancillary Agreement:
(a) as soon as reasonably practicable after the
Distribution Date but in any event within thirty (30) days thereafter,
PracticeWorks will cease all use of the InfoCure name;
(b) PracticeWorks will, at its own expense, remove (or,
if necessary, on an interim basis, cover up) any and all exterior signs and
other identifiers located on any of its property or premises or on the property
or premises used by it or its Subsidiaries which refer or pertain to InfoCure or
which include the InfoCure name, logo or other trademark or other InfoCure
intellectual property; and
(c) as soon as is reasonably practicable after the
Distribution Date but in any event within thirty (30) days thereafter,
PracticeWorks will, and will cause the PracticeWorks Subsidiaries to, remove
from all letterhead, envelopes, invoices, signs and other communications media
of any kind, all references to InfoCure, including the "InfoCure Corporation"
name, logo and any other trademark or other InfoCure intellectual property
(except that PracticeWorks shall not be required to take any such action with
respect to materials in the possession of customers).
SECTION 2.9 NONSOLICITATION OF CUSTOMERS. During the Restricted
Period, each party hereto agrees not to either directly or indirectly, alone or
in conjunction with any other party, solicit or attempt to solicit any Person
who is a customer of the other party or any of its Affiliates or Subsidiaries on
the date of this Agreement ("Customer") to (i) enter into a business
relationship with such Customer or (ii) terminate, alter or lessen that
Customer's relationship, contractually or otherwise, with such other party or
such Affiliate or Subsidiary, provided that this restriction shall not apply to
the commencement of a business relationship with
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any Customer in connection with the acquisition of a business whose customers
included any Customer.
SECTION 2.10 NONSOLICITATION OF EMPLOYEES. During the
Nonsolicitation Period, each party hereto agrees not to either directly or
indirectly, alone or in conjunction with any other party, solicit or attempt to
solicit any employee, consultant, contractor or other personnel of the other
party or any of its Affiliates or Subsidiaries to (i) terminate, alter or lessen
that party's affiliation with such other party or such Affiliate or Subsidiary
or (ii) violate the terms of any agreement or understanding between such
employee, consultant, contractor or other person and such other party, provided
that this restriction shall not apply to (A) general recruitment efforts or (B)
if an employee, consultant, contractor or other personnel initiates contact with
the other party seeking employment or other affiliation with that party.
ARTICLE III.
INDEMNIFICATION
SECTION 3.1 INDEMNIFICATION BY InfoCure. Except as otherwise
specifically set forth in any provision of this Agreement, InfoCure shall
indemnify, defend and hold harmless the PracticeWorks Indemnitees from and
against any and all Indemnifiable Losses of the PracticeWorks Indemnitees
arising out of, by reason of or otherwise in connection with the InfoCure
Liabilities or alleged InfoCure Liabilities, including any breach by InfoCure of
any provision of this Agreement. Subject to the last sentence of Section 9.1,
this Agreement is not intended to address, and should not be interpreted to
address, the matters specifically and expressly covered by the Ancillary
Agreements.
SECTION 3.2 INDEMNIFICATION BY PRACTICEWORKS. Except as otherwise
specifically set forth in any provision of this Agreement, PracticeWorks shall
indemnify, defend and hold harmless the InfoCure Indemnitees from and against
any and all Indemnifiable Losses of the InfoCure Indemnitees arising out of, by
reason of or otherwise in connection with the Assumed Liabilities or alleged
Assumed Liabilities, including any breach by PracticeWorks of any provision of
this Agreement. Subject to the last sentence of Section 9.1, this Agreement is
not intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 3.3 PROCEDURES FOR INDEMNIFICATION.
(a) Third Party Claims. If a claim or demand is made
against a PracticeWorks Indemnitee or an InfoCure Indemnitee (each, an
"Indemnitee") by any Person who is not a party to this Agreement (a "Third Party
Claim") as to which such Indemnitee is entitled to indemnification pursuant to
this Agreement, such Indemnitee shall notify the party which is or may be
required pursuant to Section 3.1 or Section 3.2 hereof to make such
indemnification (the "Indemnifying Party") in writing, and in reasonable detail,
of the Third Party Claim promptly (and in any event within fifteen (15) Business
Days) after receipt by such Indemnitee of written notice of the Third Party
Claim; provided, however, that failure to give such notification shall not
affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such
failure (except that the Indemnifying Party shall not be liable for any expenses
incurred during the period in which the Indemnitee failed to
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give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying
Party, promptly (and in any event within ten (10) Business Days) after the
Indemnitee's receipt thereof, copies of all notices and documents (including
court papers) received by the Indemnitee relating to the Third Party Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected by the
Indemnifying Party; provided that such counsel is not reasonably objected to by
the Indemnitee. Should the Indemnifying Party so elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall, within thirty (30) days (or
sooner if the nature of the Third Party Claim so requires), notify the
Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter
not be liable to the Indemnitee for legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense thereof; provided,
that such Indemnitee shall have the right to employ counsel to represent such
Indemnitee if, in such Indemnitee's reasonable judgment, a conflict of interest
between such Indemnitee and such Indemnifying Party exists in respect of such
claim which would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, subject to the proviso of the preceding sentence,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party shall control such
defense. The Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof (other than during the period
prior to the time the Indemnitee shall have given notice of the Third Party
Claim as provided above). If the Indemnifying Party so elects to assume the
defense of any Third Party Claim, all of the Indemnitees shall cooperate with
the Indemnifying Party in the defense or prosecution thereof, including by
providing or causing to be provided, Records and witnesses as soon as reasonably
practicable after receiving any request therefor from or on behalf of the
Indemnifying Party.
If the Indemnifying Party acknowledges in writing
responsibility for a Third Party Claim, then in no event will the Indemnitee
admit any liability with respect to, or settle, compromise or discharge, any
Third Party Claim without the Indemnifying Party's prior written consent;
provided, however, that the Indemnitee shall have the right to settle,
compromise or discharge such Third Party Claim without the consent of the
Indemnifying Party if the Indemnitee releases the Indemnifying Party from its
indemnification obligation hereunder with respect to such Third Party Claim and
such settlement, compromise or discharge would not otherwise adversely affect
the Indemnifying Party. If the Indemnifying Party acknowledges in writing
liability for a Third Party Claim, the Indemnitee will agree to any settlement,
compromise or discharge of a Third Party Claim that the Indemnifying Party may
recommend and that by its terms obligates the Indemnifying Party to pay the full
amount of the liability in connection with such Third Party Claim and releases
the Indemnitee completely in connection with such Third Party Claim and that
would not otherwise adversely affect the Indemnitee. If an Indemnifying Party
elects not to assume the defense of a Third Party Claim, or fails to notify an
Indemnitee of its election to do so as provided herein, such Indemnitee may
compromise, settle or defend such Third Party Claim.
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Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Party Claim (and shall be
liable for the fees and expenses of counsel incurred by the Indemnitee in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnitee which the Indemnitee reasonably determines, after
conferring with its counsel, cannot be separated from any related claim for
money damages. If such equitable relief or other relief portion of the Third
Party Claim can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion relating to money
damages.
(b) In the event of payment by an Indemnifying Party to
any Indemnitee in connection with any Third Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right
or claim relating to such Third Party Claim against any claimant or plaintiff
asserting such Third Party Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
SECTION 3.4 INDEMNIFICATION PAYMENTS. (a) Indemnification required by
this Article III shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
loss, liability, claim, damage or expenses is incurred. If the Indemnifying
Party fails to make an indemnification payment required by this Article III
within thirty (30) days after receipt of a xxxx therefore or notice that a loss,
liability, claim, damage or expense has been incurred, the Indemnifying Party
shall also be required to pay interest on the amount of such indemnification
payment, from the date of receipt of the xxxx or notice of the loss, liability,
claim, damage or expense to, but not including the date of payment, at the
Applicable Rate.
(b) The amount of any claim by an Indemnitee under this
Agreement shall be reduced to reflect any actual tax savings received by any
Indemnitee that result from the Indemnifiable Losses that gave rise to such
indemnity.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF INFOCURE
InfoCure hereby represents and warrants to PracticeWorks as follows:
SECTION 4.1 ORGANIZATION AND GOOD STANDING. InfoCure is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. InfoCure has full corporate power and authority to execute,
deliver and perform this Agreement, the Ancillary Agreements and the
transactions contemplated thereby. The execution, delivery and performance of
this Agreement, the Ancillary Agreements and the transactions contemplated
thereby by InfoCure has been duly authorized by all necessary corporate and
stockholder actions on the part of InfoCure.
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SECTION 4.2 BINDING EFFECT. This Agreement, the Ancillary Agreements
and the transactions contemplated thereby have been duly executed and delivered
by InfoCure, and, assuming the due execution and delivery thereof by
PracticeWorks, constitute the legal, valid and binding obligations of InfoCure,
enforceable against InfoCure in accordance with their terms.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PRACTICEWORKS
PracticeWorks hereby represents and warrants to InfoCure as follows:
SECTION 5.1 ORGANIZATION AND GOOD STANDING. PracticeWorks is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. PracticeWorks has full corporate power and authority
to execute, deliver and perform this Agreement, the Ancillary Agreements and the
transactions contemplated thereby. The execution, delivery and performance of
this Agreement, the Ancillary Agreements and the transactions contemplated
thereby by PracticeWorks has been duly authorized by all necessary corporate and
stockholder actions on the part of PracticeWorks.
SECTION 5.2 BINDING EFFECT. This Agreement, the Ancillary Agreements
and the transactions contemplated thereby have been duly executed and delivered
by PracticeWorks, and, assuming the due execution and delivery thereof by
InfoCure, constitute the legal, valid and binding obligations of PracticeWorks,
enforceable against PracticeWorks in accordance with their terms.
ARTICLE VI.
ACCESS TO INFORMATION
SECTION 6.1 ACCESS TO INFORMATION. Other than in circumstances in which
indemnification is sought pursuant to Article III (in which event the provisions
of such Article III will govern), from and after the Distribution Date, each of
InfoCure and PracticeWorks shall afford to the other and its authorized
Representatives reasonable access during normal business hours, subject to
appropriate restrictions for classified, privileged or confidential information,
to the personnel, properties, books and records of such party and its
Subsidiaries insofar as such access is reasonably required by the other party
and relates to (i) such other party or the conduct of its business prior to the
Effective Time or (ii) any Ancillary Agreement.
SECTION 6.2 PROVISION OF CORPORATE RECORDS.
(a) Other than in circumstances in which indemnification
is sought pursuant to Article III (in which event the provisions of such Article
will govern), from and after the Distribution Date, upon the prior written
request by PracticeWorks for specific and identified agreements, documents,
books, records or files (collectively, "Records") which relate to (i)
PracticeWorks or the conduct of the PracticeWorks Business up to the Effective
Time, or (ii) any Ancillary Agreement (other than the Tax Disaffiliation
Agreement), InfoCure shall arrange, as soon as reasonably practicable following
the receipt of such request, to provide appropriate copies of such Records (or
the originals thereof if PracticeWorks has a reasonable need for such
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originals) in the possession or control of InfoCure or any of the InfoCure
Subsidiaries, but only to the extent such items are not already in the
possession or control of the requesting party.
(b) Other than in circumstances in which indemnification
is sought pursuant to Article III (in which event the provisions of such Article
will govern), from and after the Distribution Date, upon the prior written
request by InfoCure for specific and identified Records which relate to (i)
InfoCure or the conduct of the InfoCure Business up to the Effective Time, or
(ii) any Ancillary Agreement (other than the Tax Disaffiliation Agreement),
PracticeWorks shall arrange, as soon as reasonably practicable following the
receipt of such request, to provide appropriate copies of such Records (or the
originals thereof if InfoCure has a reasonable need for such originals) in the
possession or control of PracticeWorks or any of the PracticeWorks Subsidiaries,
but only to the extent such items are not already in the possession or control
of the requesting party.
SECTION 6.3 REIMBURSEMENT; OTHER MATTERS. Except to the extent
otherwise contemplated by any Ancillary Agreement, a party providing Records or
access to information to the other party under this Article VI shall be entitled
to receive from the recipient, upon the presentation of invoices therefor,
payments for such amounts, relating to supplies, disbursements and other
out-of-pocket expenses, as may be reasonably incurred in providing such Records
or access to information.
SECTION 6.4 CONFIDENTIALITY. Neither (i) InfoCure nor the InfoCure
Subsidiaries nor (ii) PracticeWorks nor the PracticeWorks Subsidiaries shall use
or permit the use of (without the prior written consent of the other) and shall
keep, and shall cause its consultants and advisors to keep, confidential all
information concerning the other party in its possession, its custody or under
its control (except to the extent that (A) such information has been in the
public domain through no fault of such party or (B) such information has been
later lawfully acquired from other sources by such party or (C) this Agreement
or any other Ancillary Agreement or any other agreement entered into pursuant
hereto permits the use or disclosure of such information) to the extent such
information, (w) relates to or was acquired during the period up to the
Effective Time, (x) relates to any Ancillary Agreement, (y) is obtained in the
course of performing services for the other party pursuant to any Ancillary
Agreement, or (z) is based upon or is derived from information described in the
preceding clauses (w), (x) or (y), and each party hereto shall not (without the
prior written consent of the other) otherwise release or disclose such
information to any other Person, except such party's auditors, attorneys,
consultants, lenders and advisors, unless compelled to disclose such information
by judicial or administrative process or unless such disclosure is required by
Law and such party has used commercially reasonable efforts to consult with the
other affected party or parties prior to such disclosure.
SECTION 6.5 PRIVILEGED MATTERS. The parties hereto recognize that legal
and other professional services that have been and will be provided prior to the
Distribution Date have been and will be rendered for the benefit of each of the
members of the InfoCure Group, and the members of the PracticeWorks Group, and
that each of the members of the InfoCure Group and each of the members of the
PracticeWorks Group should be deemed to be the client for the purposes of
asserting all privileges which may be asserted under applicable Law. Except as
otherwise specifically provided in the Tax Disaffiliation Agreement with respect
to tax matters, to allocate the interests of each party hereto in the
information as to which any party is entitled to assert a privilege, the parties
agree as follows:
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(a) InfoCure shall be entitled, in perpetuity, to control
the assertion or waiver of all privileges in connection with privileged
information which relates solely to the InfoCure Business, whether or not the
privileged information is in the possession of or under the control of InfoCure
or PracticeWorks. InfoCure shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
that relates solely to the subject matter of any claims constituting InfoCure
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by InfoCure, whether or not the
privileged information is in the possession of or under the control of InfoCure
or PracticeWorks.
(b) PracticeWorks shall be entitled, in perpetuity, to
control the assertion or waiver of all privileges in connection with privileged
information which relates solely to the PracticeWorks Business, whether or not
the privileged information is in the possession of or under the control of
InfoCure or PracticeWorks. PracticeWorks shall also be entitled, in perpetuity,
to control the assertion or waiver of all privileges in connection with
privileged information which relates solely to the subject matter of any claims
constituting Assumed Liabilities, now pending or which may be asserted in the
future, in any lawsuits or other proceedings initiated against or by
PracticeWorks, whether or not the privileged information is in the possession of
PracticeWorks or under the control of InfoCure or PracticeWorks.
(c) The parties hereto agree that they shall have a
shared privilege, with equal right to assert or waive, subject to the
restrictions in this Section 6.5, with respect to all privileges not allocated
pursuant to the terms of Sections 6.5(a) and (b). All privileges relating to any
claims, proceedings, litigation, disputes, or other matters which involve
InfoCure and PracticeWorks in respect of which such parties retain any
responsibility or liability under this Agreement, shall be subject to a shared
privilege among them.
(d) No party hereto may waive any privilege which could
be asserted under any applicable Law, and in which any other party hereto has a
shared privileged, without the consent of the other party, which consent shall
not be unreasonably withheld or delayed, except to the extent reasonably
required in connection with any litigation with Third Parties or as provided in
subsection (e) below. Consent shall be in writing, or shall be deemed to be
granted unless written objection is made within twenty (20) days after notice
upon the other party requesting such consent.
(e) In the event of any litigation or dispute between or
among any of the parties hereto, any party and a Subsidiary of another party
hereto, or a Subsidiary of one party hereto and a Subsidiary of another party
hereto, either such party may waive a privilege in which the other party has a
shared privilege, without obtaining the consent of the other party, provided
that such waiver of a shared privilege shall be effective only as to the use of
information with respect to the litigation or dispute between the relevant
parties and/or their Subsidiaries, and shall not operate as a waiver of the
shared privilege with respect to Third Parties.
(f) If a dispute arises between or among the parties
hereto or their respective Subsidiaries regarding whether a privilege should be
waived to protect or advance the interest of any party, each party hereto agrees
that it shall negotiate in good faith, shall endeavor to minimize any prejudice
to the rights of the other parties, and shall not unreasonably withhold consent
to any request for waiver by another party. Each party hereto specifically
agrees that it will not withhold consent to waiver for any purpose except to
protect its own legitimate interests.
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(g) Upon receipt by any party hereto or by any Subsidiary
thereof of any subpoena, discovery or other request which arguably calls for the
production or disclosure of information subject to a shared privilege or as to
which another party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its Subsidiaries' current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party of the existence of the request and shall provide the other party a
reasonable opportunity to review the information and to assert any rights it or
they may have under this Section 6.5 or otherwise to prevent the production or
disclosure of such privileged information.
(h) The transfer of all Records and other information
pursuant to this Agreement is made in reliance on the agreement of InfoCure and
PracticeWorks, as set forth in Sections 6.4 and 6.5, to maintain the
confidentiality of privileged information and to assert and maintain all
applicable privileges. The access to information being granted pursuant to
Sections 6.1 and 6.2 hereof, the agreement to provide witnesses and individuals
pursuant to Section 9.6 hereof, the furnishing of notices and documents and
other cooperative efforts contemplated by Section 3.3 hereof, and the transfer
of privileged information between and among the parties and their respective
Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any
privilege that has been or may be asserted under this Agreement or otherwise.
SECTION 6.6 OWNERSHIP OF INFORMATION. Any information owned by one
party hereto or any of its Subsidiaries that is provided to a requesting party
pursuant to Article III or this Article VI shall be deemed to remain the
property of the providing party. Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any such information.
SECTION 6.7 RETENTION OF RECORDS.
(a) InfoCure shall deliver to PracticeWorks promptly upon
PracticeWorks' written request all Records that are specifically identified by
PracticeWorks and known by InfoCure, after reasonable inquiry, to be in its
control or possession relating to Included Assets, Assumed Liabilities or the
PracticeWorks Business. Except (i) as provided in the Tax Disaffiliation
Agreement or (ii) when a longer retention period is otherwise required by Law or
agreed to in writing, the InfoCure Group and the PracticeWorks Group shall
retain, for a period of at least eight years, all Records relating to the
PracticeWorks Business as of the Effective Time. Notwithstanding the foregoing,
in lieu of retaining any specific Records, InfoCure or PracticeWorks may offer
in writing to deliver such Records to the other and, if such offer is not
accepted in writing within ninety (90) days, the offered Records may be
destroyed or otherwise disposed of at any time. If a recipient of such offer
shall request in writing prior to the scheduled date for such destruction or
disposal that any of Records proposed to be destroyed or disposed of be
delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for delivery of such of the Records as was
requested (at the cost of the requesting party).
(b) PracticeWorks shall deliver to InfoCure promptly upon
InfoCure's written request all Records that are specifically identified by
InfoCure and known by PracticeWorks, after reasonable inquiry, to be in its
control or possession relating to the InfoCure Business.
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Except (a) as provided in the Tax Disaffiliation Agreement or (b) when a longer
retention period is otherwise required by Law or agreed to in writing, the
InfoCure Group and the PracticeWorks Group shall retain, for a period of at
least eight years, all Records relating to the InfoCure Business as of the
Effective Time. Notwithstanding the foregoing, in lieu of retaining any specific
Records, InfoCure or PracticeWorks may offer in writing to deliver such Records
to the other and, if such offer is not accepted in writing within ninety (90)
days, the offered Records may be destroyed or otherwise disposed of at any time.
If a recipient of such offer shall request in writing prior to the scheduled
date for such destruction or disposal that any of Records proposed to be
destroyed or disposed of be delivered to such requesting party, the party
proposing the destruction or disposal shall promptly arrange for delivery of
such of the Records as was requested (at the cost of the requesting party).
SECTION 6.8 LIMITATION OF LIABILITY; RELEASE.
(a) No party shall have any liability to any other party
in the event that any information exchanged or provided pursuant to this
Agreement which is an estimate or forecast, or which is based on an estimate or
forecast, is found to be inaccurate.
(b) Effective upon the Distribution and except as
otherwise specifically set forth in this Agreement, each of InfoCure and
PracticeWorks releases and forever discharges the other and its Representatives
and Subsidiaries, of and from all debts, demands, actions, causes of action,
suits, accounts, covenants, contracts, agreements, damages, and any and all
claims, demands and liabilities whatsoever of every name and nature, both in law
and in equity, against such other party, its Representatives and Subsidiaries or
any of its assigns, which the releasing party has or ever had, which arise out
of or relate to events, circumstances or actions taken by such other party prior
to the Distribution; provided, however, that the foregoing general release shall
not apply to this Agreement, the Ancillary Agreements or the transactions
contemplated hereby or thereby and shall not affect either party's right to
enforce this Agreement, any of the Ancillary Agreements or any of the Contracts,
in accordance with their terms.
SECTION 6.9 OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION. The
rights and obligations granted under this Article VI are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange or
confidential treatment of information set forth in any Ancillary Agreement.
ARTICLE VII.
DISPUTE RESOLUTION
SECTION 7.1 NEGOTIATION. In the event of a controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement or the transactions
contemplated hereby, including, without limitation, any claim based on contract,
tort, statute or constitution (collectively, "Agreement Disputes"), the
management of the parties shall negotiate in good faith for a reasonable period
of time to settle such Agreement Dispute, provided such reasonable period shall
not, unless otherwise agreed by the parties in writing, exceed thirty (30) days
from the time the parties began such negotiations; provided, further, that in
the event of any mediation or arbitration in accordance with
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Sections 7.2 and 7.3 hereof, the parties shall not assert the defenses of
statute of limitations and laches arising for the period beginning after the
date the parties began negotiations hereunder, and any contractual time period
or deadline under this Agreement or any Ancillary Agreement to which such
Agreement Dispute relates shall not be deemed to have passed until such
Agreement Dispute has been resolved.
SECTION 7.2 MEDIATION. If after such reasonable period such management
are unable to settle such Agreement Dispute (and in any event, unless otherwise
agreed in writing by the parties, after sixty (60) days have elapsed from the
time the parties began such negotiations) and the Agreement Dispute involves a
controversy, dispute or claim of less than $500,000, such Agreement Dispute
shall be determined, at the request of any party, by mediation conducted in
Wilmington, Delaware or at another location which the parties mutually select,
before a retired judge sitting on the panel of Judicial Arbitration & Mediation
Services, Inc. or such other panel as the parties shall mutually select. The
mediation process shall continue as the exclusive method of resolving the
Agreement Dispute (other than negotiation between the parties) until the earlier
of the Agreement Dispute being resolved and the mediator finding in good faith
that all settlement possibilities have been exhausted and that the matter is not
resolvable through mediation. If the mediator makes such a finding, at the
request of any party, the Agreement Dispute shall then be determined by binding
arbitration in accordance with Section 7.3 hereof.
SECTION 7.3 ARBITRATION. If after such reasonable period such
management are unable to settle such Agreement Dispute (and in any event, unless
otherwise agreed in writing by the parties, after sixty (60) days have elapsed
from the time the parties began such negotiations) and the Agreement Dispute
involves a controversy, dispute or claim of $500,000 or more, or if the parties
are unable to settle such Agreement Dispute pursuant to Section 7.2 hereof with
respect to a controversy, dispute or claim of less than $500,000, such Agreement
Dispute shall be determined, at the request of any party, by binding arbitration
conducted in Wilmington, Delaware or at another location which the parties
mutually select, before and in accordance with the then-existing Arbitration
Rules of the American Arbitration Association (the "Rules"). In any dispute
between the parties hereto, the numbers of arbitrators shall be three. Any
judgment or award rendered by the arbitrator shall be final, binding and
nonappealable (except upon grounds specified in 9 U.S.C. Section 10(a) as in
effect on the date hereof). If the parties are unable to agree on an arbitrator
or arbitrators, the arbitrator or arbitrators shall be selected in accordance
with the Rules. Any controversy concerning whether an Agreement Dispute is an
arbitrable Agreement Dispute, whether arbitration has been waived, whether an
assignee of this Agreement is bound to arbitrate, or as to the interpretation of
enforceability of this Article VII shall be determined by the arbitrator or
arbitrators. In resolving any dispute, the parties intend that the arbitrator or
arbitrators apply the substantive laws of the State of Delaware, without regard
to the choice of law principles thereof. The parties intend that the provisions
to arbitrate set forth herein be valid, enforceable and irrevocable. The parties
agree to comply with any award made in any such arbitration proceedings that has
become final in accordance with the Rules and agree to enforcement of or entry
of judgment upon such award, by any court of competent jurisdiction, including
(a) the state courts of the State of Delaware, located in Wilmington, or (b) the
United States District Court for the District of Delaware, in accordance with
Section 9.20 hereof. The arbitrator or arbitrators shall be entitled, if
appropriate, to award any remedy in such proceedings, including, without
limitation, monetary damages, specific performance, attorneys' fees and all
other forms of legal and equitable relief; provided, however,
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the arbitrator or arbitrators shall not be entitled to award punitive damages.
Without limiting the provisions of the Rules, unless otherwise agreed in writing
by or among the parties or permitted by this Agreement, the undersigned shall
keep confidential all matters relating to the arbitration or the award, provided
such matters may be disclosed (i) to the extent reasonably necessary in any
proceeding brought to enforce the award or for entry of a judgment upon the
award and (ii) to the extent otherwise required by Law. Nothing contained herein
is intended to or shall be construed to prevent any party, in accordance with
Article 22(3) of the Rules or otherwise, from applying to any court of competent
jurisdiction for interim measures or other provisional relief in connection with
the subject matter of any Agreement Disputes.
SECTION 7.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article VII with
respect to all matters not subject to such dispute, controversy or claim.
SECTION 7.5 OTHER REMEDIES. Nothing in this Article VII shall limit the
right that any party may otherwise have to seek to obtain (a) preliminary
injunctive relief in order to preserve the status quo pending the resolution of
a dispute or (b) temporary or permanent injunctive relief from any breach of any
provisions of this Agreement.
ARTICLE VIII.
INSURANCE
SECTION 8.1 SEPARATE INSURANCE POLICIES. On or prior to the
Distribution Date, PracticeWorks shall use commercially reasonable efforts to
obtain Policies that provide coverage for the PracticeWorks Business which shall
be in full force and effect not later than the fifteenth (15th) Business Day
following the Distribution Date.
SECTION 8.2 POLICIES AND RIGHTS INCLUDED WITHIN INCLUDED ASSETS.
Between the Distribution Date and the date on which Policies obtained pursuant
to Section 8.1 are in effect, the Included Assets shall include (a) any and all
rights of an insured party under each of the InfoCure Shared Policies, subject
to the terms of such InfoCure Shared Policies and any limitations or obligations
of PracticeWorks contemplated by this Article VIII, specifically including
rights of indemnity and the right to be defended by or at the expense of the
insurer, with respect to all claims, suits, actions, proceedings, injuries,
losses, liabilities, damages and expenses incurred or claimed to have been
incurred prior to the Distribution Date by any party in or in connection with
the conduct of the PracticeWorks Business or, to the extent any claim is made
against PracticeWorks or any of the PracticeWorks Subsidiaries, the conduct of
the InfoCure Business, and which claims, suits, actions, proceedings, injuries,
losses, liabilities, damages and expenses may arise out of an insured or
insurable occurrence under one or more of such InfoCure Shared Policies;
provided, however, that nothing in this clause shall be deemed to constitute (or
to reflect) an assignment or transfer of such InfoCure Shared Policies, or any
of them, to PracticeWorks, and (b) the PracticeWorks Policies.
SECTION 8.3 POST-DISTRIBUTION DATE CLAIMS. (a) If, subsequent to the
Distribution Date, any Person shall assert a claim against PracticeWorks or any
of the
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PracticeWorks Subsidiaries (including where PracticeWorks or the PracticeWorks
Subsidiaries are joint defendants with other Persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred prior to the Distribution Date in or in connection
with the conduct of the PracticeWorks Business or, to the extent any claim is
made against PracticeWorks or any of the PracticeWorks Subsidiaries (including
where PracticeWorks or the PracticeWorks Subsidiaries are joint defendants with
other Persons), the conduct of the InfoCure Business and which claim, suit,
action, proceeding, injury, loss, liability, damage or expense may arise out of
an insured or insurable occurrence under one or more of the InfoCure Shared
Policies, InfoCure shall assert and collect any related Insurance Proceeds under
such InfoCure Shared Policy on behalf of PracticeWorks and remit promptly to
PracticeWorks any Insurance Proceeds so collected, and InfoCure shall further on
behalf of PracticeWorks assert any and all rights of an insured party under such
InfoCure Shared Policy with respect to such asserted claim, specifically
including rights of indemnity and the right to be defended by or at the expense
of the insurer and the right to any applicable Insurance Proceeds thereunder;
provided, however, that nothing in this Section 8.3 shall be deemed to
constitute (or to reflect) an assignment or transfer of the InfoCure Shared
Policies, or any of them, to PracticeWorks.
SECTION 8.4 ADMINISTRATION; OTHER MATTERS. (a) Administration. From and
after the Distribution Date, InfoCure shall be responsible for (i) Insurance
Administration of the InfoCure Shared Policies and (ii) Claims Administration
(except as provided below) under such InfoCure Shared Policies with respect to
InfoCure Liabilities and Assumed Liabilities; provided that the retention of
such responsibilities by InfoCure is in no way intended to limit, inhibit or
preclude any right to insurance coverage for any Insured Claim of a named
insured under such Policies as contemplated by the terms of this Agreement; and
provided further that InfoCure's retention of the administrative
responsibilities for the InfoCure Shared Policies shall not relieve the party
submitting any Insured Claim of the primary responsibility for reporting such
Insured Claim accurately, completely and in a timely manner or of such party's
authority to settle any such Insured Claim within any period permitted or
required by the relevant Policy. InfoCure may discharge its administrative
responsibilities under this Section 8.4 by contracting for the provision of
services by independent parties. Each of the parties hereto shall administer and
pay any costs relating to defending its respective Insured Claims under InfoCure
Shared Policies to the extent such defense costs are not covered under such
Policies and shall be responsible for obtaining or reviewing the appropriateness
of releases upon settlement of its respective Insured Claims under InfoCure
Shared Policies. PracticeWorks shall reimburse InfoCure promptly for all
disbursements, out-of-pocket expenses and direct and indirect costs of employees
or agents of InfoCure relating to Claims Administration and Insurance
Administration contemplated by this Section 8.4(a) on behalf of PracticeWorks.
(b) Exceeding Policy Limits.
(i) Where Assumed Liabilities are specifically
covered under an InfoCure Shared Policy for periods prior to
the Distribution Date, or covering claims made after the
Distribution Date with respect to an occurrence prior to the
Distribution Date, then from and after the Distribution Date
PracticeWorks may claim coverage for Insured Claims under such
InfoCure Shared Policy as and to the extent that such
insurance is available up to the full extent of the applicable
limits of liability of such InfoCure Shared Policy (and may
receive any Insurance
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Proceeds with respect thereto as contemplated by Section 8.3
or Section 8.4(c) hereof), subject to the terms of this
Section 8.4.
(ii) Except as set forth in this Section 8.4(b),
InfoCure and PracticeWorks shall not be liable to one another
for claims not reimbursed by insurers for any reason not
within the control of InfoCure or PracticeWorks, as the case
may be, including coinsurance provisions, deductibles, quota
share deductibles, self-insured retentions, bankruptcy or
insolvency of an insurance carrier, InfoCure Shared Policy
limitations or restrictions, any coverage disputes, any
failure to timely claim by InfoCure or PracticeWorks or any
defect in such claim or its processing.
(c) Allocation of Insurance Proceeds. Insurance Proceeds
received with respect to claims, costs and expenses under the InfoCure Shared
Policies shall be paid to InfoCure, which shall thereafter administer the
InfoCure Shared Policies by paying the Insurance Proceeds, as appropriate, to
InfoCure with respect to InfoCure Liabilities and to PracticeWorks with respect
to the Assumed Liabilities. Payment of the allocable portions of indemnity costs
of Insurance Proceeds resulting from such Policies will be made by InfoCure to
the appropriate party upon receipt from the insurance carrier. In the event that
the aggregate limits on any InfoCure Shared Policies are exceeded by the
aggregate of outstanding Insured Claims by the relevant parties hereto, such
parties agree to allocate the Insurance Proceeds received thereunder based upon
their respective percentage of the total of their bona fide claims which were
covered under such InfoCure Shared Policy (their "allocable portion of Insurance
Proceeds"), and any party who has received Insurance Proceeds in excess of such
party's allocable portion of Insurance Proceeds shall pay to the other party the
appropriate amount so that each party hereto will have received its allocable
portion of Insurance Proceeds pursuant hereto. Each of the parties agrees to use
commercially reasonable efforts to maximize available coverage under those
InfoCure Shared Policies applicable to it, and to take all commercially
reasonable steps to recover from all other responsible parties in respect of an
Insured Claim to the extent coverage limits under a InfoCure Shared Policy have
been exceeded or would be exceeded as a result of such Insured Claim.
(d) Allocation of Deductibles. In the event that the
parties have bona fide claims under any InfoCure Shared Policy for which a
deductible is payable, the parties agree that the aggregate amount of the
deductible paid shall be borne by the parties in the same proportion which the
Insurance Proceeds received by each such party bears to the total Insurance
Proceeds received under the applicable InfoCure Shared Policy (their "allocable
share of the deductible"), and any party who has paid more than its allocable
share of the deductible shall be entitled to receive from the other party an
appropriate amount so that each party hereto has borne its allocable share of
the deductible pursuant hereto.
(e) Method of Allocation of Premiums. PracticeWorks shall
reimburse InfoCure promptly for its portion of premiums paid by InfoCure after
the Distribution Date for InfoCure Shared Policies. PracticeWorks' portion of
the premiums shall be equal to its pro rata share of the premiums, based on the
value of the assets of PracticeWorks as set forth on the PracticeWorks Pro Forma
Balance Sheet as compared to the assets of InfoCure.
SECTION 8.5 AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE. In the
event that Insured Claims of more than one of the parties hereto exist relating
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to the same occurrence, the parties shall jointly defend and waive any conflict
of interest necessary to the conduct of the joint defense. Nothing in this
Article VIII shall be construed to limit or otherwise alter in any way the
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of Law or otherwise.
SECTION 8.6 COOPERATION. The parties agree to use their commercially
reasonable efforts to cooperate with respect to the various insurance matters
contemplated by this Agreement.
ARTICLE IX.
ADDITIONAL COVENANTS AND MISCELLANEOUS PROVISIONS
SECTION 9.1 COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, including
the Exhibits and Schedules, and the Ancillary Agreements shall constitute the
entire agreement between the parties with respect to the subject matter hereof
and shall supersede all previous negotiations, commitments and writings with
respect to such subject matter. In the event of any inconsistency between this
Agreement and any Schedule hereto, the Schedule shall prevail. In the event and
to the extent that there shall be a conflict between the provisions of this
Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 9.2 ANCILLARY AGREEMENTS. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by the Ancillary Agreements.
SECTION 9.3 COMPLIANCE WITH BULK SALES LAWS. The parties hereby waive
compliance with the bulk sales law and any other similar laws in any applicable
jurisdiction in respect of the transactions contemplated by this Agreement,
including, without limitation, any applicable state tax law that may require
notification of state taxing authorities and related actions in respect of bulk
sales of assets outside of the ordinary course of business.
SECTION 9.4 NOTIFICATION OF CERTAIN MATTERS.
(a) InfoCure shall promptly notify PracticeWorks, or
PracticeWorks shall promptly notify InfoCure:
(i) of any notice or other communication from
any Third Party alleging that the consent of such Third Party
is or may be required in connection with the transactions
contemplated by this Agreement; or
(ii) of any notice or other communication from
any Governmental Authority in connection with the transactions
contemplated hereby.
(b) All notices and other communications hereunder shall
be in writing, shall reference this Agreement and shall be hand delivered or
mailed by registered or certified mail (return receipt requested) or sent by
facsimile or by any other means of electronic message transmission with delivery
confirmed (in writing or any electronic transmission) to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like
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notice) and will be deemed given on the date on which confirmation of delivery
of such notice is received ("Notices"):
To InfoCure:
InfoCure Corporation
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To PracticeWorks:
PracticeWorks, Inc.
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 9.5 FURTHER ASSURANCES. In case at any time after the
Distribution Date any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement and the Ancillary Agreements, the
proper officers of each party to this Agreement shall take all such necessary
action. Without limiting the foregoing, InfoCure and PracticeWorks shall use
their commercially reasonable efforts promptly to obtain all consents and
approvals, to enter into all agreements and to make all filings and applications
that may be required for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, including, without limitation, all
applicable governmental and regulatory filings.
SECTION 9.6 WITNESS SERVICES. At all times from and after the
Distribution Date, each of InfoCure and PracticeWorks shall use their
commercially reasonable efforts to make available to the other, upon reasonable
written request, its and its Subsidiaries' officers, directors, employees and
agents as witnesses to the extent that (i) such persons may reasonably be
required in connection with the prosecution or defense of any Action in which
the requesting party from time to time be involved and (ii) there is no conflict
in the Action between the requesting party and InfoCure and PracticeWorks, as
applicable. A party providing witness services to the other party under this
Section 9.6 shall be entitled to receive from the recipient of such services,
upon the presentation of invoices therefor, payments for such amounts, relating
to disbursements and other out-of-pocket expenses (which shall be deemed to
exclude the costs of salaries and benefits of employees who are witnesses), as
may be reasonably incurred in providing such witness services.
SECTION 9.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with federal law as it applied to patents, copyrights
and trademarks and in accordance with the laws of the State of Delaware as
applied to contracts entered into and to be performed entirely within the State
of Delaware.
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SECTION 9.8 THIRD PARTY BENEFICIARIES. Except as provided in Article
III relating to Indemnitees and in Section 9.23 hereof, this Agreement is solely
for the benefit of the parties hereto and their respective Subsidiaries and
Affiliates and should not be deemed to confer upon Third Parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
SECTION 9.9 SUCCESSORS AND ASSIGNS. Except for assignments pursuant to
Section 9.21, 9.22 and 9.23 hereof, this Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any party hereto without the prior
written consent of the other party hereto, and any attempt to assign any rights
or obligations arising under this Agreement without such consent shall be void.
Subject to the restrictions set forth in Sections 9.21 and 9.22 hereof, this
Agreement shall be binding upon and inure to the parties hereto and their
respective successors.
SECTION 9.10 SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 9.11 AMENDMENT. Subject to the terms of Section 9.12 hereof, no
change, modification or amendment of this Agreement shall be valid or binding on
the parties unless such change or modification shall be in writing signed by the
party or parties against whom the same is sought to be enforced.
SECTION 9.12 TERMINATION. This Agreement (including Article III hereof)
may be terminated and the Distribution may be amended, modified or abandoned at
any time prior to the Distribution by and in the sole discretion of InfoCure
without the approval of PracticeWorks or the stockholders of InfoCure. In the
event of such termination, no party shall have any liability of any kind to any
other party or any other person. After the Distribution, this Agreement may not
be terminated except by an agreement in writing signed by the parties; provided,
however, that Article III shall not be terminated or amended after the
Distribution in respect of the Third Party beneficiaries thereto without the
consent of such persons.
SECTION 9.13 EXPENSES. Except as otherwise set forth in this Agreement
or any Ancillary Agreement, any and all fees, costs and expenses ("Charges")
incurred on, prior to or subsequent to the Distribution Date in connection with
the preparation, execution, delivery, printing and implementation of this
Agreement and any Ancillary Agreement, the Prospectus (including the
Registration Statement) and the Distribution and the consummation of the
transactions contemplated hereby, and the following transactions: (a) the
Dentsply Acquisition, (b) the FINOVA Loan Agreements, (c) the Crescent
Investment, and (d) the Medy Acquisition, for which payment of such Charges has
not been remitted by either InfoCure or PracticeWorks as of the Effective Time,
shall be charged to and paid by PracticeWorks. Charges shall include, but are
not limited to the fees and expenses of Xxxxxx, Xxxxxxx & Xxxxxx, LLP; Xxxx &
Xxxxxxxx; Houlihan, Lokey, Xxxxxx & Zukin, Financial Advisors, Inc.; BDO
Xxxxxxx, LLP; and Xxxxxxx Xxxxx & Company, L.L.C. Such expenses shall be deemed
to be Assumed Liabilities. Except as otherwise set forth in this Agreement or
any Ancillary Agreement, each party hereto shall bear its own costs and expenses
incurred after the Distribution Date. Any amount or expense to be paid or
reimbursed by any party hereto to any other party hereto
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shall be so paid or reimbursed promptly after the existence and amount of such
obligation is determined and written demand therefor is made.
SECTION 9.14 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
SECTION 9.15 SURVIVAL OF AGREEMENTS. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
SECTION 9.16 WAIVERS. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
SECTION 9.17 SUBSIDIARIES. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party or
by any entity that is contemplated to be a Subsidiary of such party on and after
the Distribution Date.
SECTION 9.18 TITLE AND HEADINGS. Titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
SECTION 9.19 EXHIBITS AND SCHEDULES. The Exhibits and Schedules shall
be construed with and as an integral part of this Agreement to the same extent
as if the same had been set forth verbatim herein.
SECTION 9.20 CONSENT TO JURISDICTION. Without limiting the provisions
of Article VII hereof, each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the state courts of the State of Delaware, located in the
City of Wilmington, and (b) the United States District Court for the District of
Delaware, for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby. Each of the parties
agrees to commence any action, suit or proceeding relating hereto either in the
United States District Court for the District of Delaware or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the state courts of the State of Delaware, located in the City of
Wilmington. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in Delaware with respect to any matters to which it has
submitted to jurisdiction in this Section 9.20. Each of the parties irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the state courts of the State of Delaware, located in
the City of Wilmington, or (ii) the United States District Court for the
District of Delaware, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court
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that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
SECTION 9.21 CONSOLIDATION, MERGER, ETC. INVOLVING PRACTICEWORKS.
PracticeWorks shall not consolidate with or merge into any other Person or
convey, transfer or lease all or any substantial portion of its properties and
assets to any Person, and PracticeWorks shall not permit any Person to
consolidate with or merge into PracticeWorks or convey, transfer or lease all or
any substantial portion of its properties and assets to PracticeWorks, unless,
in each case, the Person formed by such consolidation or into which
PracticeWorks is merged or the Person which acquires by conveyance or transfer,
or which leases, all or any substantial portion of properties and assets of
PracticeWorks shall be a corporation, partnership, limited liability company or
trust and shall expressly assume, by a written agreement, executed and delivered
to InfoCure, all of the liabilities, obligations and expenses to be assumed by
PracticeWorks under this Agreement and the due and punctual performance or
observance of every agreement and covenant of this Agreement on the part of
PracticeWorks to be performed or observed.
SECTION 9.22 CONSOLIDATION, MERGER, ETC. INVOLVING InfoCure. InfoCure
shall not consolidate with or merge into any other Person or convey, transfer or
lease all or any substantial portion of its properties and assets to any Person,
and InfoCure shall not permit any Person to consolidate with or merge into
InfoCure or convey, transfer or lease all or any substantial portion of its
properties and assets to InfoCure, unless, in each case, the Person formed by
such consolidation or into which InfoCure is merged or the Person which acquires
by conveyance or transfer, or which leases, all or any substantial portion of
properties and assets of InfoCure shall be a corporation, partnership, limited
liability company or trust and shall expressly assume, by a written agreement,
executed and delivered to PracticeWorks, all of the liabilities, obligations and
expenses to be assumed by InfoCure under this Agreement and the due and punctual
performance or observance of every agreement and covenant of this Agreement on
the part of InfoCure to be performed or observed.
SECTION 9.23 COLLATERAL ASSIGNMENT TO FINOVA. Notwithstanding Sections
9.8 and 9.9 above, (i) in connection with the closing of the transactions
contemplated by the Loan Agreement dated as of March 5, 2001 (as amended,
modified, supplemented or restated from time to time, the "PracticeWorks Loan
Agreement") by and between PracticeWorks and FINOVA Capital Corporation
(together with its successors and assigns, "FINOVA"), PracticeWorks agrees that
it shall assign this Agreement and its rights, interests and benefits hereunder
to FINOVA pursuant to, among other things, the Collateral Assignment of
Distribution Transaction Documents dated the date of the PracticeWorks Loan
Agreement executed by PracticeWorks in favor of FINOVA, whereupon FINOVA shall
be permitted to exercise any remedy, claim of action or other right afforded to
PracticeWorks hereunder and (ii) in connection with the closing of the
transactions contemplated by the Second Amendment to Loan Agreement and Other
Loan Documents dated as of March 5, 2001 (as amended, modified, supplemented or
restated from time to time, the "InfoCure Loan Agreement") by and between
InfoCure and FINOVA, InfoCure agrees that it shall assign this Agreement and its
rights, interests and benefits hereunder to FINOVA pursuant to, among other
things, the Collateral Assignment of Distribution Transaction Documents dated
the date of the InfoCure Loan Agreement executed by InfoCure in favor of FINOVA,
whereupon FINOVA shall be permitted to exercise any remedy, claim of action or
other right afforded to InfoCure hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
INFOCURE CORPORATION
By: /s/ Xxxxxxxxx X. Fine
-----------------------------------------
Xxxxxxxxx X. Fine
Chief Executive Officer
PRACTICEWORKS, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Executive Officer
