Annex A
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AGREEMENT AND PLAN OF MERGER
Between
MEDE AMERICA CORPORATION
and
GENCC HOLDINGS CORPORATION
Dated as of May 17, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I
THE MERGER
SECTION 1.01 The Merger................................................ 2
SECTION 1.02 Effect of the Merger...................................... 2
SECTION 1.03 Consummation of the Merger................................ 3
SECTION 1.04 Charter; By-Laws; Directors and
Officers.................................................. 3
SECTION 1.05 Further Assurances........................................ 3
ARTICLE II
CONVERSION OF SECURITIES
SECTION 2.01 Conversion of Securities of
the Company............................................... 4
SECTION 2.02 Stock Options, Warrants, Etc.............................. 4
SECTION 2.03 Conversion of Securities of
GENCC..................................................... 5
SECTION 2.04 Election Procedures....................................... 5
SECTION 2.05 Fractional Interests...................................... 6
SECTION 2.06 Dissenting Shares......................................... 6
SECTION 2.07 Surrender and Exchange of Shares.......................... 7
SECTION 2.08 Dissenting Shares After
Payment of Fair Value..................................... 7
SECTION 2.09 Closing of Stock Transfer Books........................... 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of
the Company and GENCC .................................... 7
ARTICLE IV
COVENANTS
SECTION 4.01 Certain Covenants......................................... 13
SECTION 4.02 Proxy Statement/Offering Memorandum....................... 13
SECTION 4.03 Other Agreements.......................................... 13
SECTION 4.04 Notification of Certain Matters........................... 14
SECTION 4.05 Consents.................................................. 14
ARTICLE V
CONDITIONS PRECEDENT TO THE MERGER
SECTION 5.01 Conditions Precedent to the Merger
Relating to the Company .................................. 14
SECTION 5.02 Conditions Precedent to the Merger
Relating to GENCC..........................................16
ARTICLE VI
TERMINATION AND ABANDONMENT
SECTION 6.01 Termination and Abandonment............................... 18
SECTION 6.02 Effect of Termination..................................... 18
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Expenses, Etc............................................. 19
SECTION 7.02 Publicity................................................. 19
SECTION 7.03 Execution in Counterparts................................. 19
SECTION 7.04 Notices................................................... 19
SECTION 7.05 Waivers................................................... 20
SECTION 7.06 Amendments, Supplements, Etc. .............................20
SECTION 7.07 Entire Agreement.......................................... 21
SECTION 7.08 Applicable Law............................................ 21
SECTION 7.09 Binding Effect, Benefits.................................. 21
SECTION 7.10 Assignability............................................. 21
INDEX TO SCHEDULES AND EXHIBITS
Schedule Description
- -------- -----------
I Stockholders of the Constituent
Corporations
3.01(b) Subsidiaries
5.01(e) Consents to be Obtained by GENCC
5.02(e) Consents to be Obtained by the
Company
Exhibit ss. Ref. Description
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A 3.01(c)(i) Form of Certificate of Merger
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 17, 1995,
between MEDE AMERICA CORPORATION, a Delaware corporation (the "Company"), and
GENCC HOLDINGS CORPORATION, a Delaware corporation ("GENCC"). The Company and
GENCC are hereinafter sometimes referred to as the "Constituent Corporations"
and the Company as the "Surviving Corporation."
WHEREAS, the Company and GENCC desire that GENCC merge with
and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth herein and in accordance with the General Corporation Law
of the State of Delaware (the "Dela- ware GCL") with the result that the Company
shall continue as the surviving corporation and the separate existence of GENCC
(except as it may be continued by operation of law) shall cease; and
WHEREAS, the Company and GENCC desire that upon the Merger, at
the Effective Time (as hereinafter defined) (i) all outstanding shares of Common
Stock, $.01 par value, of GENCC ("GENCC Common Stock"), and all outstanding
shares of Preferred Stock, $.01 par value, of GENCC ("GENCC Preferred Stock")
(excluding any shares of capital stock of GENCC held in the treasury of GENCC)
be converted into the right to receive, as to a portion thereof, a cash payment,
and as to the balance thereof, units consisting of fully paid and nonassessable
shares of Common Stock, $.01 par value, of the Surviving Corporation ("Surviving
Corporation Common Stock"), and fully paid and non-assessable shares of
Preferred Stock, $.01 par value, of the Surviving Corporation ("Surviving
Corporation Preferred Stock"), together with cash in lieu of fractional
interests, and (ii) all outstanding shares of Common Stock, $.01 par value, of
the Company (the "Company Common Stock") (excluding Dissenting Shares (as
hereinafter defined)) be converted into the right to receive, at the election of
the holder, either (i) a cash payment or (ii) units (the "Units"), each
consisting of (y) one-half of one share of fully paid and nonassessable shares
of Surviving Corporation Common Stock and (z) five one-thousandths of a share of
fully paid and nonassessable shares of Surviving Corporation Preferred Stock,
together with cash in lieu of fractional interests, as hereinafter provided; and
WHEREAS, all the outstanding shares of GENCC Common Stock and
all outstanding shares of GENCC Preferred Stock are held by Welsh, Carson,
Anderson & Stowe V, L.P. and certain of its affiliates (collectively, "WCAS")
and certain of such WCAS holders are also holders of shares of Company Common
Stock;
WHEREAS, as soon as practicable after the date hereof, the
Company shall circulate a Proxy Statement/Offering Memorandum, (the
"Proxy/Offering Memorandum"), in which the Company
shall offer to sell, pursuant to a Subscription Agreement (the "Subscription
Agreement") to be consummated contemporaneously with the Effective Time,
additional Units ("Additional Units") to certain stockholders of the Company who
qualify as "accredited investors" (within the meaning of Rule 501 under the
Securities Act of 1933, as amended (the "Securities Act")) (offerees who so
subscribe being referred to as the "Participants") which would permit each
Participant to maintain the same percentage ownership of the Surviving
Corporation as it currently has in the Company; and
WHEREAS, the respective Boards of Directors of the
Company and GENCC have approved the Merger; and
WHEREAS, in connection with the Merger, William Blair
Leveraged Capital Fund, Limited Partnership, the members of WCAS who hold
Company Common Stock and GENCC (as holder of 100% of the outstanding shares of
Preferred Stock, $.01 par value, of the Company ("Company Preferred Stock")),
have entered into a Merger Consideration Election Agreement (the "Election
Agreement"), pursuant to which they have agreed to vote in favor of the Merger
and to elect to receive Units in exchange for all the shares of Company Common
Stock held by them at the Effective Time.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants, agreements and conditions contained
herein, and in order to set forth the terms and conditions of the Merger and the
mode of carrying the same into effect, the parties hereto hereby agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.011 The Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time, in accordance with this Agreement and
the Delaware GCL, GENCC shall be merged with and into the Company, the separate
existence of GENCC (except as it may be continued by operation of law) shall
cease, and the Company shall continue as the surviving corporation under the
corporate name of "MedE America Corporation."
SECTION 1.012 Effect of the Merger. Upon the effectiveness of
the Merger, the Surviving Corporation shall possess all the rights, privileges,
powers and franchises, as well of a public as of a private nature, and be
subject to all the restrictions, disabilities and duties, of each of the
Constituent Corporations; and all and singular, the rights, privileges, powers
and franchises of each of the Constituent Corporations,
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and all property, real, personal and mixed, and all debts due to any of the
Constituent Corporations on whatever account, as well for stock subscriptions as
all other things in action or belonging to each of the Constituent Corporations,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest shall be
thereafter as effectually the property of the Surviving Corporation as they were
of the Constituent Corporations, and the title to any real estate vested by deed
or otherwise in any of the Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of any of the Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if said debts, liabilities and duties
had been incurred or contracted by it.
SECTION 1.013 Consummation of the Merger. As soon as
practicable after the satisfaction or waiver of the conditions to the
obligations of the parties to effect the Merger set forth herein, provided that
this Agreement has not been terminated previously, the parties hereto will cause
the Merger to be consummated by filing with the Secretary of State of the State
of Delaware a properly executed Certificate of Merger (the time of such filing
being the "Effective Time").
SECTION 1.014 Charter; By-Laws; Directors and Officers. The
Certificate of Incorporation of the Surviving Corporation from and after the
Effective Time shall be the Certificate of Incorporation of the Company, as
amended by the Certificate of Merger (as hereinafter defined) and in effect
immediately prior to the Effective Time, until thereafter amended in accordance
with the provisions thereof and as provided by the Delaware GCL. The By-laws of
the Surviving Corporation from and after the Effective Time shall be the By-laws
of the Company as in effect immediately prior to the Effective Time, continuing
until thereafter amended in accordance with the provisions thereof and the
Certificate of Incorporation of the Surviving Corporation and as provided by the
Delaware GCL. The initial directors and officers of the Surviving Corporation
shall be the directors and officers, respectively, of the Company immediately
prior to the Effective Time, in each case until their respective successors are
duly elected and qualified.
SECTION 1.015 Further Assurances. If at any time after the
Effective Time the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, its right, title or interest in, to or
under any of the rights, privileges, powers, fran-
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chises, properties or assets of either of the Constituent Corporations, or (b)
otherwise to carry out the purposes of this Agreement, the Surviving Corporation
and its proper officers and directors or their designees shall be authorized to
execute and deliver, in the name and on behalf of either of the Constituent
Corporations, all such deeds, bills of sale, assignments and assurances and do,
in the name and on behalf of such Constituent Corporation, all such other acts
and things necessary, desirable or proper to vest, perfect or confirm its right,
title or interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of such Constituent Corporation and otherwise
to carry out the purposes of this Agreement.
ARTICLE II
CONVERSION OF SECURITIES
SECTION 2.021 Conversion of Securities of the Company. By
virtue of the Merger and without any action on the part of the holders of the
capital stock of the Company, at the Effective Time, all outstanding shares of
the capital stock of the Company (other than Dissenting Shares and outstanding
shares of Company Preferred Stock (which shall be canceled as provided in
paragraph (b) below)) shall be converted into the right to receive either the
MedE Stock Consideration or the MedE Cash Consideration (as each such term is
hereinafter defined), as follows:
(a) Company Common Stock. Each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time (other than
Dissenting Shares) shall be converted into the right to receive either (i) $1.00
in cash, without interest (the "MedE Cash Consideration") or (ii) a Unit
consisting of (x) one-half (.5) of one fully paid and nonassessable share of
Surviving Corporation Common Stock and (y) five one- thousandths (.005) of one
fully paid and nonassessable share of Surviving Corporation Preferred Stock,
together with cash in lieu of fractional interests in such shares as provided in
Section 2.05(c) hereof (collectively, the "MedE Stock Consideration"), in each
case, as the holder thereof shall have elected, or be deemed to have elected, in
accordance with Section 2.04 hereof.
(b) Company Preferred Stock. Each share of Company Preferred
Stock issued and outstanding immediately prior to the Effective Time shall be
canceled and retired, and no capital stock of the Company, cash or other
consideration shall be paid or delivered in exchange therefor.
SECTION 2.022 Stock Options, Warrants, Etc. At the Effective
Time, the terms and provisions of each outstanding stock option, warrant or
other right to purchase Company Common Stock shall continue in full force and
effect and the holder
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thereof shall be entitled to receive, upon the exercise thereof and subject to
such other terms and provisions, a number of shares of Surviving Corporation
Common Stock equal to the number of shares of Company Common Stock that would
have been issued if such option, warrant or other right had been exercised
immediately prior to the Effective Time.
SECTION 2.023 Conversion of Securities of GENCC.
(a) GENCC Common Stock and GENCC Preferred Stock. At the
Effective Time, each unit (a "GENCC Unit") consisting of ten (10) shares of
GENCC Common Stock and one (1) share of GENCC Preferred Stock, in each case,
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger, automatically and without any action on the part of the holder
thereof, be converted into the right to receive either (x) $200 in cash, without
interest (the "GENCC Cash Consideration") or (y) shares of the capital stock of
the Surviving Corporation at a rate of 200 Units (the "GENCC Stock
Consideration"). GENCC Units shall be converted into the right to receive the
GENCC Cash Consideration to the extent only that the Surviving Corporation shall
have allocated cash to the payment thereof, and the remain- ing GENCC Units
shall be converted into GENCC Stock Consider- ation. The Surviving Corporation
shall allocate cash to the payment of GENCC Cash Consideration in respect of
GENCC Units in an amount equal to the excess of (i) the aggregate cash proceeds
received by the Surviving Corporation as of the Effective Time from the sale of
Additional Units pursuant to Subscription Agreements, over (ii) the sum of (a)
the total Mede Cash Consid- eration to be paid pursuant to Section 2.01(a)(i)
hereof and (b) $5 million. Prior to the Effective Time, the Company shall
confirm in writing to each holder of GENCC Units the amount of GENCC Cash
Consideration and GENCC Stock Consideration to be received by such holder in the
Merger.
SECTION 2.024 Election Procedures. (a) Prior to the Effective
Time, each holder of shares of Company Common Stock (other than Dissenting
Shares, if any) shall elect, in accordance with Section 2.04(b) hereof, to
receive in the Merger either the MedE Cash Consideration or the MedE Stock
Consideration in exchange for such shares. Shares of Company Common Stock in
respect of which the holder does not submit an effective notice of election
shall be deemed by the Company to be shares in respect of which the holder has
elected to receive the MedE Stock Consideration.
(b) Elections shall be made by notice given to the
Company in a form to be provided by the Company for that purpose to holders of
Company Common Stock, at the time of mailing to such holders of the
Proxy/Offering Memorandum. To be effective, a notice of election must be
properly completed as provided in the form of notice included in the
Proxy/Offering Memorandum,
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signed and submitted to the Company at the office designated on the form of
notice so provided, on or before the deadline specified therein, which shall be
no less than seven (7) days after the date on which the Proxy/Offering
Memorandum is mailed by the Company to stockholders of the Company.
SECTION 2.025 Fractional Interests. No certificates
representing fractional shares of Surviving Corporation Common Stock or
Surviving Corporation Preferred Stock shall be issued in connection with the
Merger, and such fractional interests will not entitle the owner thereof to any
rights of a stockholder of the Surviving Corporation. In lieu of any such
fractional interests, each holder of shares of Company Common Stock exchanged
pursuant to Section 2.01(a) who would otherwise have been entitled to receive a
fraction of a share of Surviving Corporation Common Stock or Surviving
Corporation Preferred Stock (after taking into account all shares of Company
Common Stock then held of record by such holder) shall receive (a) cash (without
interest) in an amount equal to the product of such fractional part of a share
of Surviving Corporation Common Stock or Surviving Corporation Preferred Stock,
as the case may be, multiplied by $1.00 and $100, respectively.
SECTION 2.026 Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, shares of capital stock of the Company that are
outstanding immediately prior to the Effective Time and that are held by
stockholders who have not voted such shares in favor of the approval and
adoption of this Agreement and who shall have delivered a written demand for
appraisal of such shares in the manner provided in Section 262 of the Delaware
GCL ("Dissenting Shares") shall not be converted into or be exchangeable for the
right to receive the MedE Cash Consideration or the MedE Stock Consideration, as
provided in Section 2.01 of this Agreement, but the holders of such shares shall
be entitled to payment of the appraised value of such shares in accordance with
the provisions of Section 262 of the Delaware GCL; provided, however, that (i)
if any holder of Dissenting Shares shall subsequently deliver a written
withdrawal of his demand for appraisal of such shares (with the written approval
of the Surviving Corporation, if such withdrawal is not tendered within 60 days
after the Effective Time), or (ii) if any holder fails to perfect or loses his
appraisal rights as provided in Section 262 of the Delaware GCL, or (iii) if any
holder of Dissenting Shares fails to demand payment within the time period
provided in Section 262 of the Delaware GCL, such holder or holders (as the case
may be) shall forfeit the right to appraisal of such shares and such shares
shall thereupon be deemed to have been converted into and to have become
exchangeable for, as of the Effective Time, the right to receive MedE Stock
Consideration as provided in Section 2.01 of this Agreement.
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SECTION 2.027 Surrender and Exchange of Shares. (a) At the
Effective Time, each holder of an outstanding certificate or certificates, which
prior thereto represented shares of Company Common Stock, GENCC Common Stock or
GENCC Preferred Stock shall surrender the same to the Surviving Corporation, and
each such holder shall be entitled upon such surrender to receive in exchange
therefor, without cost to it, the amount of MedE Cash Consideration, MedE Stock
Consideration, GENCC Cash Consideration or GENCC Stock Consideration, as
applicable, into which the shares theretofore represented by the certificate so
surrendered shall have been converted as provided in Section 2.01 and 2.03
hereof, and the certificate or certificates so surrendered in exchange for such
consideration shall forthwith be canceled by the Surviving Corporation.
(b) If a holder of shares of Company Common Stock, GENCC
Common Stock or GENCC Preferred Stock has lost the certificate evidencing such
shares owned by such holder, then such holder shall submit an affidavit
describing the lost certificate, the number of shares evidenced thereby and
affirming the loss of that certificate in lieu of surrendering the lost
certificate to the Surviving Corporation, which shall deem such lost certificate
canceled. Until so surrendered, the outstanding certificates that, prior to the
Effective Time, represented shares of the capital stock of the Company or GENCC
that shall have been converted as aforesaid shall be deemed for all corporate
purposes, except as hereinafter provided, to evidence the ownership of the
consideration into which such shares have been so converted.
SECTION 2.028 Dissenting Shares After Payment of Fair Value.
Dissenting Shares, if any, after payments of fair value in respect thereto have
been made to dissenting stockholders of the Company pursuant to the Delaware
GCL, shall be canceled.
SECTION 2.029 Closing of Stock Transfer Books. At and after
the Effective Time there shall be no transfers on the stock transfer books of
the Company or GENCC of shares of capital stock of the Company or GENCC that
were issued and outstanding immediately prior to the Effective Time.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.031 Representations and Warranties of the Company
and GENCC. Each of the Company and GENCC (being hereinafter referred to,
collectively, as the "Merger Parties" and, individually, as a "Merger Party")
represents and warrants, only as to itself and its subsidiaries to the other
Merger Party as follows:
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(a) Organization, Power, Etc. (i) Such Merger Party is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, is duly qualified or licensed and is in good standing
to do business as a foreign corporation in each jurisdiction in which the
property owned, leased or operated by it or the nature of its business, as now
being conducted, makes such qualification or licensing necessary (other than any
such jurisdictions in which the failure to be so qualified would not, in the
aggregate, have a material adverse effect on its business, properties or
condition (financial or other)), and has all requisite corporate power and
authority to own, operate and lease its properties and to carry on its business
as now being conducted and to execute, deliver and perform this Agreement.
(b) Subsidiaries. Except as set forth in Schedule 3.01(b)
hereto, in Part I thereof in the case of the Company and in Part II thereof in
the case of GENCC, neither such Merger Party nor any of its subsidiaries owns of
record or beneficially, directly or indirectly, (i) any shares of outstanding
capital stock or securities convertible into capital stock of any other
corporation or (ii) any participating interest in any partnership, joint venture
or other non-corporate business enterprise. Each subsidiary of such Merger Party
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite corporate power
and authority to own, operate or lease its properties and to carry on its
business as it is now being conducted. Each such subsidiary is duly qualified or
licensed and is in good standing to do business as a foreign corporation in each
jurisdiction in which the property owned, leased or operated by it or the nature
of its business as now being conducted makes such qualification or licensing
necessary (other than any such jurisdiction in which the failure to be so
qualified would not, in the aggregate, have a material adverse effect on the
business, properties or condition (financial or other) of such Merger Party and
its subsidiaries, taken as a whole). All the outstanding shares of capital stock
of such Merger Party's subsidiaries are validly issued, fully paid and
nonassessable and are owned by such Merger Party or by a wholly-owned subsidiary
of such Merger Party, free and clear of any liens, claims, charges or
encumbrances, and there are no irrevocable proxies outstanding with respect to
any such shares. For purposes of this Agreement, the term "subsidiary" shall
mean any corporation or other business entity a majority of the outstanding
voting stock of which is entitled to vote for the election of directors is at
the time owned by such Merger Party and/or one or more other subsidiaries.
(c) Capitalization. (i) The authorized capital stock of the
Company consists of 25,000,000 shares of Common Stock,
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$.01 par value, and 11,000 shares of Preferred Stock, $.01 par value, of which
20,000,000 shares of such Common Stock and 11,000 shares of such Preferred Stock
are issued and outstanding, fully paid and nonassessable and 2,500,000 shares of
the Company Common Stock are reserved for issuance under the stock option and
restricted stock purchase plan of the Company. After filing the Certificate of
Merger with the Secretary of State of the State of Delaware, in the form
attached hereto as Exhibit A (the "Certificate of Merger"), the authorized
capital stock of the Surviving Corporation will consist of 24,000,000 shares of
Surviving Corporation Common Stock and 215,000 shares of Surviving Corporation
Preferred Stock.
(ii) The authorized capital stock of GENCC consists of 2,750,000
shares of Common Stock, $.01 par value, and 125,000 shares of Preferred Stock,
$.01 par value, of which 1,150,000 shares of such Common Stock and 115,000
shares of such Preferred Stock are issued and outstanding, fully paid and
nonassessable.
(iii) Schedule I hereto, in Part I thereof in the case of the
Company and Part II thereof in the case of GENCC, contains a true and complete
list of all the holders of shares of capital stock of such Merger Party and
their respective share holdings, and all outstanding options, warrants, calls or
other rights to subscribe for or purchase or acquire from such Merger Party, or
any plans, contracts or commitments providing for the issuance of, or the
granting of rights to acquire (i) any capital stock of such Merger Party or (ii)
any securities convertible into or exchangeable for any capital stock of such
Merger Party. Except as set forth in said Schedule I, such Merger Party is not
contractually obligated to repurchase, redeem or otherwise acquire any of its
outstanding shares of capital stock or options to acquire such stock and, except
for the Election Agreement, there are no agreements among the stockholders of
such Merger Party regarding the voting of securities of such Merger Party.
(d) Authorization of Agreements, Etc. (i) The execution,
delivery and performance by such Merger Party of this Agreement, and the
consummation by it of the transactions contemplated hereby have been duly and
effectively authorized by all requisite corporate action. This Agreement
constitutes the legal, valid and binding obligation of such Merger Party,
enforceable against such Merger Party in accordance with its terms subject, as
to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights in general and to general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at law.
(ii) The issuance and delivery by the Company of the shares of the
Surviving Corporation Common Stock and the Surviv-
9
ing Corporation Preferred Stock upon the consummation of the Merger at the
Effective Time, as contemplated herein, have been duly and effectively
authorized by all requisite corporate action, and such shares, when issued and
delivered in accordance with this Agreement, will be validly issued and
outstanding, fully paid and nonassessable shares of Surviving Corporation Common
Stock and Surviving Corporation Preferred Stock, as the case may be. The
issuance and delivery of the shares of Surviving Corporation Common Stock and
Surviving Corporation Preferred Stock, under the circumstances contemplated by
this Agreement, are not subject to any preemptive rights of stockholders of the
Company or to any right of first refusal or other similar right in favor of any
person and are exempt from the registration requirements of the Securities Act.
(e) Effect of Agreements. The execution and delivery by such
Merger Party of this Agreement, and performance by it of its obligations
hereunder will not violate, in any material respect, any provision of any
statute or regulation, the Certificate of Incorporation or By-laws of such
Merger Party or any of its subsidiaries or any order of any court or other
agency of government, or any judgment, award or decree or any indenture,
agreement or other instrument to which such Merger Party or any of its
subsidiaries is a party, or by which such Merger Party or any of its
subsidiaries or any of their respective properties or assets is bound, or
conflict with in any material respect, result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under,
any such indenture, or any agreement or other instrument, or result in the
creation or imposition of any lien, charge, security interest or encumbrance of
any nature whatsoever upon any of the material properties or assets of such
Merger Party and its subsidiaries, taken as a whole.
(f) Financial Statements. (i) The Company has furnished to
GENCC: (A) the unaudited consolidated statement of financial position of the
Company and its subsidiaries as of February 28, 1995 and the related statements
of operations for the eight months then ended, certified by the principal
financial officer of the Company.
(ii) GENCC has furnished to the Company: (A) the consolidated
statements of the financial position of General Computer Corporation ("GCC") and
its subsidiaries for each of the three fiscal years ended May 31, 1992, 1993 and
1994 and the related statements of operations, changes in stockholders' equity
and cash flows for the fiscal years then ended, certified by KPMG Peat Marwick,
LLP, the independent public accountants then retained by GCC and (B) the
unaudited consolidated balance sheet of GCC as of November 30, 1994, and the
related unaudited statements of operations, change in stockholders' equity and
cash flows for
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the six months then ended, certified by the principal financial officer of GCC.
(iii) All such financial statements of such Merger Party
(including any related schedules and/or notes, if any) have been prepared in
accordance with generally accepted accounting principles consistently applied
and consistent with prior periods, except that such interim statements are
subject to year end adjustments (which consist of normal recurring accruals) and
do not contain footnote disclosures. Except as set forth in Schedule 3.01(f)
hereto, in Part I thereof in the case of the Company and Part II thereof in the
case of GCC, each of such statements of financial position of the Company and
its subsidiaries or GCC, as the case may be, fairly present in all material
respects the financial position of the applicable Merger Party and its
subsidiaries as of their respective dates, and such statements of operations,
changes in stockholders' equity and cash flows fairly present in all material
respects the results of operations of the applicable Merger Party and its
subsidiaries for the respective periods then ended, subject, in the case of
unaudited financial statements, to normal year-end adjustments and the absence
of footnote disclosure. Except (i) as set forth in the financial statements of
such Merger Party and its subsidiaries, (ii) as incurred in the ordinary course
of business and consistent with past practice, or (iii) as set forth on said
Schedule 3.01(f), to such Merger Party's knowledge, such Merger Party and its
subsidiaries have not incurred any material liabilities or obligations of any
kind or nature, whether known or unknown (whether absolute, secured, contingent
or otherwise) and whether due or to become due since February 28, 1995, in the
case of the Company and its subsidiaries, and since November 30, 1994, in the
case of GCC and GENCC.
(g) Absence of Certain Changes or Events. Except as otherwise
set forth in Schedule 3.01(g) hereto, in Part I thereof in the case of the
Company and Part II thereof in the case of GENCC, since February 28, 1995, in
the case of the Company and its subsidiaries, and since November 30, 1994, in
the case of GCC and GENCC, neither such Merger Party nor any of its subsidiaries
has:
(i) incurred any obligation or liability (fixed or
contingent), except normal trade or business obligations incurred in
the ordinary course of business and consistent with past practice, none
of which, individually or in the aggregate, is materially adverse, and
except in connection with this Agreement and the transactions
contemplated hereby;
(ii) discharged or satisfied any lien, security interest, charge or
other encumbrance or paid any obligation or
11
liability (fixed or contingent), other than in the ordinary course of
business and consistent with past practice;
(iii) mortgaged, pledged or subjected to any lien, security
interest, charge or other encumbrance any of its assets or properties
with a value in excess of $100,000 (other than mechanic's,
materialman's and similar statutory liens arising in the ordinary
course of business and purchase money security interests arising as a
matter of law between the date of delivery and payment);
(iv) transferred, leased or otherwise disposed of any of its assets
or properties except for a fair consideration in the ordinary course of
business and consistent with past practice or, except in the ordinary
course of business and consistent with past practice, acquired any
assets or properties;
(v) authorized, declared or paid any dividend or made any
other distribution on or in respect of any class of its capital stock
or established a record date for any of the foregoing;
(vi) canceled or compromised any debt or claim greater than
$100,000 individually, other than in the ordinary course of business
consistent with past practice;
(vii) waived or released any rights of material value;
(viii) transferred or granted any rights under any concessions,
leases, licenses, agreements, patents, inventions, trademarks, trade
names, servicemarks or copyrights or with respect to any know-how other
than in the ordinary course of business consistent with past practice;
(ix) made or granted any wage or salary increase applicable to any
group or classification of employees generally, entered into any
employment contract with, or made any loan to, or entered into any
material transaction of any other nature with, any officer or employee
of such Merger Party or any of its subsidiaries or affiliates;
(x) entered into any transaction, contract or commitment that,
individually or in the aggregate, are material, except (A) contracts
listed, or which pursuant to the terms hereof are not required to be
listed, on Schedule 3.01(i) hereto, (B) this Agreement and the
transactions contemplated hereby and (C) as permitted by Section 4.01
hereof;
(xi) suffered any casualty loss or damage (whether or not such
loss or damage shall have been covered by insur-
12
ance) which affects in any material respect its ability to conduct
its business; or
(xii) suffered any material adverse change in its business,
operations or condition (financial or other).
ARTICLE IV
COVENANTS
SECTION 4.01 Certain Covenants. During the period from the
date of this Agreement to the Effective Time, each Merger Party will conduct its
business and operations in the ordinary course consistent with past practice and
use its reasonable efforts to preserve its relationships with business partners,
suppliers, employees and customers. Without limiting the generality of the
foregoing, except as otherwise contemplated by this Agreement, each of the
parties hereto agrees that, from and after the date of this Agreement and until
the Effective Time, without the prior written consent of the other party hereto,
it will not, nor will it permit any of its Subsidiaries to, do any of the acts
or things of the kind described in Section 3.01(g) above.
SECTION 4.02 Proxy/Offering Memorandum. (a) As soon as
reasonably practicable following the execution and delivery of this Agreement,
the Company shall prepare the Proxy/Offering Memorandum with respect to the
Subscription Agreement and the Merger and the shares of Surviving Corporation
Common Stock and Surviving Corporation Preferred Stock to be issued pursuant to
the Subscription Agreement and in the Merger. GENCC shall cooperate fully with
the Company in the preparation of the Proxy/Offering Memorandum and any
amendments and supplements thereto. The Proxy/Offering Memorandum shall not be
distributed and no amendment or supplement thereto shall be made by the Company,
without the prior consent of GENCC and its counsel.
(b) As soon as reasonably practical following the execution
and delivery of this Agreement, GENCC shall solicit the written consent of its
stockholders to approve and adopt this Agreement and the Merger and for such
other purposes as many be necessary and desirable.
SECTION 4.03 Other Agreements. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement, including, without limitation, using all reasonable efforts to obtain
all necessary waivers, consents and approvals and to
13
effect all necessary registrations and filings and submissions of information
requested by governmental authorities.
SECTION 4.044 Notification of Certain Matters. Each party
shall give prompt notice to the other party hereto of (i) the occurrence, or
failure to occur, of any event which such party believes would be likely to
cause any of its representations or warranties contained in this Agreement to be
untrue or inaccurate at any time from the date hereof to the Effective Time and
(ii) any failure of such party, or of any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that failure to
give such notice shall not constitute a waiver of any defense that may be
validly asserted.
SECTION 4.045 Consents. Each party will use its reasonable
efforts to obtain the written consents of all persons and governmental
authorities required to be obtained by such party and necessary to the
consummation of the transactions contemplated by this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO THE MERGER
SECTION 5.051 Conditions Precedent to the Merger Relating to
the Company. The obligations of the Company to effect the Merger are subject to
the satisfaction (or, at its option, the waiver (except that the conditions
contained in paragraphs d, e, f, g, and h may not be waived) at or prior to the
Effective Time of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of GENCC contained in this Agreement or in any
certificate or document delivered to the Company pursuant hereto shall be true
and correct on and as of the Effective Time as though made at and as of that
date, and GENCC shall have delivered to the Company a certificate to that
effect.
(b) Compliance with Covenants. GENCC shall have performed and
complied with all terms, agreements, covenants and conditions of this Agreement
to be performed or complied with by them at or prior to the Effective Time, and
GENCC shall have delivered to the Company a certificate to that effect.
(c) All Proceedings to Be Satisfactory. All proceedings to be
taken by GENCC in connection with the transactions contemplated hereby and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and its counsel, and the Company and said counsel shall
have received
14
all such counterpart originals or certified or other copies of such documents as
it or they may reasonably request.
(d) Legal Actions or Proceedings. No legal action or
proceeding shall have been instituted or threatened seeking to restrain,
prohibit, invalidate or otherwise affect the consummation of the transactions
contemplated hereby or which would, if adversely decided, have a material
adverse affect on the business, properties or condition (financial or other) or
prospects of GENCC and its subsidiaries.
(e) Consents. The applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") shall have
expired and the other consents and actions set forth in Schedule 5.01(e) hereto
shall have been obtained or consummated, as the case may be.
(f) Stockholder Approval. This Agreement and the Merger shall
have been approved and adopted by the stockholders of the Company and GENCC in
accordance with the Delaware GCL and their respective Certificates of
Incorporation and By-laws.
(g) Subscription Agreement. The Subscription Agreement shall
have been executed and delivered by the parties thereto and each of the parties
thereto shall have consummated the transactions contemplated thereby.
(h) The Certificate of Merger. Certificate of Merger shall
have been filed with the Secretary of State of Delaware.
(i) Supporting Documents. On or prior to the Effective Time,
the Company and its counsel shall have received copies of the following
supporting documents:
(i) (1) copies of the Certificate of Incorporation of GENCC
and all amendments thereto, certified as of a recent date by the
Secretary of State of the State of Delaware, and (2) a certificate of
said Secretary dated as of a recent date as to the due incorporation
and good standing of GENCC and listing all documents of GENCC on file
with said Secretary, and (3) confirmation from said Secretary as of the
close of business on the next business day preceding the Effective Time
as to the continued good standing of GENCC and to the effect that no
amendment to its Certificate of Incorporation has been filed since the
date of the certificate referred to in clause (2) above; and
(ii) a certificate of the Secretary or an Assistant Secretary of
GENCC dated the Effective Time and certifying: (1) that attached
thereto is a true and complete copy of the By-laws of GENCC as in
effect on the date of such certification; (2) that attached thereto is
a true and complete copy
15
of the resolutions adopted by the Board of Directors and the
stockholders of GENCC authorizing the execution, delivery and
performance of this Agreement and the Merger and that all such
resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by
this Agreement; (3) that the Certificate of Incorporation of GENCC has
not been amended since the date of the last amendment referred to in
the certificate delivered pursuant to clause (i)(2) above; and (4) as
to the incumbency and specimen signature of each officer of GENCC
executing this Agreement and any certificate or instrument furnished
pursuant hereto, and a certification by another officer of GENCC as to
the incumbency and signature of the officer signing the certificate
referred to in this paragraph (ii).
All such documents shall be satisfactory in form and substance
to the Company and its counsel.
SECTION 5.02 Conditions Precedent to the Merger Relating to
GENCC. The obligation of GENCC to effect the Merger is subject to the
satisfaction (or, at its option, the waiver (except that the conditions
contained in paragraphs d, e, f, g, and h may not be waived) at or prior to the
Effective Time of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of the Company contained in this Agreement or in
any certificate or document delivered to GENCC pursuant hereto shall be true and
correct on and as of the Effective Time as though made at and as of that date,
and the Company shall have delivered to GENCC a certificate to such effect.
(b) Compliance with Covenants. the Company shall have
performed and complied with all terms, agreements, covenants and conditions of
this Agreement to be performed or complied with by it at or prior to the
Effective Time, and the Company shall have delivered to GENCC a certificate to
that effect.
(c) All Proceedings to Be Satisfactory. All corporate and
other proceedings to be taken by the Company in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in form and substance to GENCC and its counsel, and GENCC and said
counsel shall have received all such counterpart originals or certified or other
copies of such documents as they may reasonably request.
(d) Legal Actions or Proceedings. No legal action or
proceeding shall have been instituted or threatened seeking to restrain,
prohibit, invalidate or otherwise affect the consummation of the transactions
contemplated hereby or which would, if
16
adversely decided, have a material adverse affect on the business, properties or
condition (financial or other) or prospects of the Company and its subsidiaries.
(e) Consents. The applicable waiting period under the HSR Act
shall have expired and the other consents and actions set forth in Schedule
5.02(e) hereto shall have been obtained or consummated as the case may be.
(f) Stockholder Approval. This Agreement and Merger shall have
been approved and adopted by the stockholders of the Company and GENCC in
accordance with the Delaware GCL and their respective Certificates of
Incorporation and By-laws.
(g) The Certificate of Merger. The Certificate of Merger shall
have been filed with the Secretary of State of Dela- ware.
(h) Subscription Agreement. The Subscription Agreement shall
have been executed and delivered by the parties thereto and each of the parties
thereto shall have consummated the transactions contemplated thereby.
(i) Supporting Documents. On or prior to the Effective Time,
GENCC and its counsel shall have received copies of the following supporting
documents:
(i) (1) copies of the Certificate of Incorporation of the
Company and all amendments thereto, certified as of a recent date by
the Secretary of State of the State of Dela- ware, (2) a certificate of
said Secretary dated as of a recent date as to the due incorporation
and good standing of the Company and listing all documents of the
Company on file with said Secretary, and (3) confirmation from said
Secretary as of the close of business on the next business day
preceding the Effective Time as to the continued due incorporation and
good standing of the Company and to the effect that no amendment to its
Certificate of Incorporation has been filed since the date of the
certificate referred to in clause (2) above (other than the Certificate
of Merger); and
(ii) a certificate of the Secretary or an Assistant Secretary of
the Company dated the Effective Time and certifying: (1) that attached
thereto is a true and complete copy of the By-laws of the Company as in
effect on the date of such certification; (2) that attached thereto is
a true and complete copy of resolutions adopted by the Board of
Directors of the Company authorizing the execution, delivery and
performance of this Agreement and that all such resolutions are still
in full force and effect and are all the resolutions adopted in
connection with the transactions contemplated by this Agreement; (3)
that the Certificate of
17
Incorporation of the Company has not been amended since the date of the
last amendment referred to in the certificate delivered pursuant to
clause (i)(2) above (other than the Certificate of Merger); and (4) as
to the incumbency and specimen signature of each officer of the Company
executing this Agreement and any certificate or instrument furnished
pursuant hereto, and a certification by another officer of the Company
as to the incumbency and signature of the officer signing the
certificate referred to in this paragraph (ii).
All such documents shall be satisfactory in form and substance
to GENCC and its counsel.
ARTICLE VI
TERMINATION AND ABANDONMENT
SECTION 6.01 Termination and Abandonment. This Agreement may
be terminated and the Merger may be abandoned at any time prior to the Effective
Time, whether before or after approval by the stockholders of the Company and
GENCC:
(a) By mutual action of the Boards of Directors of the
Company and GENCC;
(b) By the Company, if the conditions set forth in Section
5.01 shall not have been complied with or performed in any material respect and
such noncompliance or nonperformance shall not have been cured or eliminated (or
by its nature cannot be cured or eliminated) by GENCC on or before June 30,
1995; or
(c) By GENCC, if the conditions set forth in Section 5.02
shall not have been complied with or performed in any material respect and such
noncompliance or nonperformance shall not have been cured or eliminated (or by
its nature cannot be cured or eliminated) by the Company on or before June 30,
1995.
SECTION 6.02 Effect of Termination. In the event of the
termination of this Agreement and the abandonment of the Merger pursuant to
Section 6.01, this Agreement shall thereafter become void and have no effect,
and no party hereto shall have any liability to any other party hereto or its
stockholders or directors or officers in respect thereof, and each party shall
be responsible for its own expenses, except that nothing herein shall relieve
any party from liability for any willful breach hereof.
18
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Expenses, Etc. Unless the transactions
contemplated by this Agreement are consummated, neither of the parties hereto
shall have any obligation to pay any of the fees and expenses of the other party
incident to the negotiation, preparation and execution of this Agreement,
including the fees and expenses of counsel, accountants, investment bankers and
other experts. At the Effective Time, the Surviving Corporation shall become
obligated to pay all such fees and expenses incurred by each of the Constituent
Corporations.
SECTION 7.02 Publicity. The parties hereto agree to cooperate
in issuing any press release or other public announcement concerning this
Agreement or the transactions contemplated hereby. Each party shall furnish to
the other drafts of all such press releases or announcements prior to their
release. Nothing contained herein shall prevent any party from at any time
furnishing any information required by any government authority.
SECTION 7.03 Execution in Counterparts. For the convenience of
the parties, this Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.04 Notices. All notices which are required or may be
given pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered or mailed by
registered or certified mail, postage prepaid, as follows:
If to the Company, to:
MedE America Corporation
333 Ovington Boulevard
Mitchel Field,
New York 11553
Attention: President
with a copy to:
Reboul, MacMurray, Hewitt,
Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Attention: Robert A. Schwed, Esq.
19
If to GENCC, to:
GENCC Holdings Corporation
c/o Welsh, Carson, Anderson & Stowe
One World Financial Center
200 Liberty Street
New York, New York 10281
Attention: President
with a copy to:
Reboul, MacMurray, Hewitt,
Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Attention: Robert A. Schwed, Esq.
or such other address or addresses as either party hereto shall have designated
by notice in writing to the other party hereto.
SECTION 7.05 Waivers. Either party hereto may, by written
notice to the other party hereto, (i) extend the time for the performance of any
of the obligations or other actions of the other party under this Agreement;
(ii) waive any inaccuracies in the representations or warranties of the other
party contained in this Agreement or in any document delivered pursuant to this
Agreement; (iii) waive compliance with any of the conditions or covenants of the
other contained in this Agreement; or (iv) waive performance of any of the
obligations of the other under this Agreement. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation any investigation by or on behalf of either party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representations, warranties, covenants or agreements contained in this
Agreement. The waiver by either party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
SECTION 7.06 Amendments, Supplements, Etc. (a) Subject as set
forth in paragraph (b) below, at any time this Agreement may be amended or
supplemented by such additional agreements, articles or certificates, as may be
determined by the parties hereto to be necessary, desirable or expedient to
further the purposes of this Agreement, or to clarify the intention of the
parties hereto, or to add to or modify the covenants, terms or conditions hereof
or to effect or facilitate any governmental approval or acceptance of this
Agreement or to effect or facilitate the filing or recording of this Agreement
or the
20
consummation of any of the transactions contemplated hereby. Any such instrument
must be in writing and signed by both parties.
(b) This Agreement may be varied or amended at any time before
or after the approval and adoption of this Agreement by the stockholders of the
Company and GENCC by action of the respective Boards of Directors of the Company
and GENCC, without action by the stockholders thereof, provided that after
approval and adoption of this Agreement by the stockholders of the Company or
GENCC, no such variance or amendment shall, without consent of such
stockholders, reduce the consideration that the holders of shares of the capital
stock of either of the Constituent Corporations shall be entitled to receive
upon the Effective Time pursuant to Section 2.01 and Section 2.03 hereof.
SECTION 7.07 Entire Agreement. This Agreement, its Exhibits
and Schedules, and the documents executed at the Effective Time in connection
herewith, constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof. No representation, warranty, promise, inducement or
statement of intention has been made by either party which is not embodied in
this Agreement or such other documents, and neither party shall be bound by, or
be liable for, any alleged representation, warranty, promise, inducement or
statement of intention not embodied herein or therein. The representations and
warranties contained in this Agreement shall not survive after the Effective
Time.
SECTION 7.08 Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 7.09 Binding Effect, Benefits. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 7.10 Assignability. Neither this Agreement nor any of
the parties' rights hereunder shall be assignable by either party hereto without
the prior written consent of the other party hereto.
21
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the day and year first above written.
MEDE AMERICA CORPORATION
By
-------------------------
ATTEST:
- ---------------------
GENCC HOLDINGS CORPORATION
By
-------------------------
ATTEST:
- ---------------------
22
SCHEDULE I
Part I
------
Stockholders of the Company
---------------------------
23
SCHEDULE I
Part II
-------
Stockholders of GENCC
---------------------
Shares of Shares of
GENCC Pre- Common
Stockholder ferred Stock Stock
- ----------- ------------ -----
Welsh, Carson, Anderson 109,315 1,093,150
& Stowe V, L.P.
WCAS Information 2,000 20,000
Partners
Patrick J. Welsh 500 5,000
Russell L. Carson 500 5,000
Bruce K. Anderson 750 7,500
Richard H. Stowe 75 750
Delaware Charter Trust 75 750
Co. Trustee For Richard
H. Stowe
Andrew M. Paul 350 3,500
Thomas E. McInerney 750 7,500
Laura VanBuren 10 100
James B. Hoover 125 1,250
Robert H. Minicucci 400 4,000
Anthony J. deNicola 150 1,500
------- ---------
Total 115,000 1,150,000
======= =========
24
SCHEDULE 3.01(b)
Part I
Subsidiaries of the Company
MedE America, Inc.
Medical Processing Center, Inc.
Wellmark Incorporated
Part II
Subsidiaries of GENCC
General Computer Corporation
Mavis Industries, Inc.
GCC Cognitive Service Network, Inc.
25
SCHEDULE 5.01(e)
Consents to be Obtained by GENCC
None
SCHEDULE 5.02(e)
Consents to be Obtained by the Company
None
26
CERTIFICATE OF MERGER
OF
GENCC HOLDINGS CORPORATION
WITH AND INTO
MEDE AMERICA CORPORATION
MEDE AMERICA CORPORATION ("MedE"), organized under and
existing by virtue of the General Corporation Law of the State of Delaware (the
"DGCL") does hereby certify as follows:
FIRST: The name and state of incorporation of each of the
constituent corporations (the "Constituent Corporations") are as follows:
Name State of Incorporation
---- ----------------------
ENCC Holdings Corporation Delaware
MedE America Corporation Delaware
SECOND: An Agreement and Plan of Merger dated as of May , 1995
(the "Merger Agreement"), between MedE and GENCC Holdings Corporation ("GENCC"),
providing for the merger of GENCC with and into MedE (the "Merger"), has been
approved, adopted, certified, executed and acknowledged by each of the
Constituent Corporations in accordance with the requirements of Section 251 of
the DGCL.
THIRD: The name of the surviving corporation is MedE America
Corporation (the "Surviving Corpor-tion").
FOURTH: The following amendments to the Certificate of
Incorporation of the Surviving Corporation shall be effected by the Merger and
the capital of the Surviving Corporation will not be decreased on account of
such amendments:
Article FOURTH of the Certificate of Incorporation of the
Surviving Corporation shall be amended to read in its entirety as
follows:
'FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 30,240,000
shares, consisting of 240,000 shares of Preferred Stock, $.01 par value
("Preferred Stock") and 30,000,000 shares of Common Stock, $.01 par
value ("Common Stock").
All cross-references in each subdivision of this Article
FOURTH refer to other paragraphs in such subdivision unless otherwise
indicated.
27
The following is a statement of the designations, and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, in respect of each class of stock of the
Corporation:
I.
PREFERRED STOCK
1. Cumulative Dividends. (i) The holders of Preferred Stock
shall be entitled to receive, when and as declared by the Board of
Directors out of funds legally available for such purpose, cash
dividends at the rate of $10.00 per share per annum, and no more. In
the event such dividends are declared, the dividend payment dates with
respect thereto shall be the immediately succeeding September 30.
(ii) In no event, so long as any Preferred Stock shall remain
outstanding, shall any dividend whatsoever be declared or paid upon,
nor shall any distribution be made upon, any Common Stock, other than a
dividend or distribution payable in shares of Common Stock, nor,
without the written consent of the holders of 66 2/3% of the
outstanding Preferred Stock, shall any shares of Common Stock be
purchased or redeemed by the Corporation, nor shall any moneys be paid
to or made available for a sinking fund for the purchase or redemption
of any Common Stock, unless in each instance cumulative dividends
accrued and unpaid on all outstanding shares of the Preferred Stock for
all past dividend periods shall have been paid in full.
2. Redemption.
2A. Mandatory Redemptions.
(i) The Preferred Stock shall be redeemed in full in two equal
installments on September 30, of each of 2001 and 2002, at the
Redemption Price (as defined below).
(ii) Upon the consummation of an underwritten public offering pursuant
to an effective registration statement under the Securities Act of
1933, as amended, covering the offering and sale of the Corporation's
Common Stock pursuant to which the Corporation receives aggregate net
proceeds of at least $15 million (after underwriters', brokers' and
dealers' fees and commissions and underwriters' discounts and any other
offering expenses required to be disclosed in Part II of the applicable
registration statement) (a "Qualified Public Offering"), the
Corporation shall redeem all then outstanding shares of Preferred Stock
at the Redemption Price.
2B. Optional Redemptions. The Preferred Stock may be redeemed in whole
at any time or in part from time to time, at the option of the
Corporation, at the Redemption Price.
2C. Redemption Date; Redemption Price. Any date on which the
Corporation elects or is required to redeem Preferred Stock under
28
this paragraph 2 shall be referred to as a "Redemption Date." The per
share "Redemption Price" of the Preferred Stock to be redeemed on a
Redemption Date shall be the sum of (x) $100.00 per share, plus (y) any
accrued but unpaid dividends thereon to the date of such redemption.
2D. Notice of Redemption. Not less than 30 days before any Redemption
Date, written notice shall be given by mail, postage prepaid to the
holders of record of the Preferred Stock to be redeemed, addressed to
each such stockholder at his or its post office address as shown by the
records of the Corporation, specifying the number of shares to be
redeemed, the subparagraph or subparagraphs of this paragraph 2
pursuant to which such redemption shall be made, the Redemption Price
and the place at which and the date, which date shall not be a day on
which banks in the City of New York are required or authorized to
close, on which the shares of Preferred Stock will be redeemed. If such
notice of redemption shall have been duly given and if on or before
such Redemption Date the funds necessary for redemption shall have been
set aside so as to be and continue to be available therefor, then,
notwithstanding that any certificate for shares of Preferred Stock to
be redeemed shall not have been surrendered for cancellation, after the
close of business on such Redemption Date, such shares shall no longer
be deemed outstanding, the dividends thereon shall cease to accrue, and
all rights with respect to such shares shall forthwith after the close
of business on the Redemption Date, cease, except only the right of the
holders thereof to receive the Redemption Price for such shares,
without interest.
2E. Redeemed or Otherwise Acquired Shares to be Retired. Any shares of
Preferred Stock redeemed pursuant to this paragraph 2 or otherwise
acquired by the Corporation in any manner whatsoever shall be
permanently retired and shall not under any circumstances be reissued;
and the Corporation may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized Preferred
Stock accordingly.
2F. Shares to be Redeemed, Purchased or Retired. In case of the
redemption, purchase or retirement, for any reason, of only a part of
the outstanding shares of the Preferred Stock on a Redemption Date, all
shares of Preferred Stock to be redeemed, purchased or retired shall be
selected pro rata, and there shall be so redeemed, purchased or retired
from each registered holder in whole shares, as nearly as practicable
to the nearest share, the proportion of all the shares to be redeemed,
purchased or retired which the number of shares held of record by such
holder bears to the total number of shares of Preferred Stock at the
time outstanding.
3. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, or the sale of
all or substantially all the assets of the Corporation (each such event
being referred to as a "Liquidation"), a holder of the shares of
Preferred Stock shall be entitled, before any distribution or payment
is made upon any Common Stock, to
29
receive out of the assets of the Corporation (x) $100.00 per share,
plus (y) any accrued but unpaid dividends thereon to the date of such
redemption, for each share of Preferred Stock held by such holder. If
upon such Liquidation, the assets to be distributed among the holders
of Preferred Stock shall be insufficient to permit payment to the
holders of Preferred Stock of that amount distributable as aforesaid,
then the entire assets of the Corporation to be distributed shall be
distributed ratably among the holders of Preferred Stock. Upon any such
Liquidation, after the holders of the Preferred Stock shall have been
paid in full the amounts to which they shall be entitled, the holders
of the Common Stock will share the remaining net assets of the
Corporation. Written notice of such Liquidation, stating a payment
date, the aggregate amount of the payments to which such holder of
Preferred Stock is entitled and the place where said sums shall be
payable shall be given by mail, postage prepaid, not less than 30 days
prior to the payment date stated therein, to the holders of record of
the Preferred Stock, such notice to be addressed to each stockholder at
its post office address as shown by the records of the Corporation.
Neither the consolidation or merger of the Corporation into or with any
other corporation or corporations, nor the reduction of the capital
stock of the Corporation, shall be deemed to be a Liquidation.
4. Voting Rights. Except as otherwise provided by law or this
Certificate of Incorporation, the holders of Preferred Stock shall not
be entitled to vote on matters presented to the stockholders of the
Corporation.
5. Restrictions. At any time when shares of Preferred Stock
are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by
law or by this Certificate of Incorporation, and in addition to any
other vote required by law, without the prior consent of the holders of
66 2/3% of the outstanding Preferred Stock, given in person or by
proxy, either in writing or at a special meeting called for that
purpose, at which meeting the holders of the shares of Preferred Stock
shall vote together as a class:
(i) The Corporation will not create or authorize the
creation of any additional class of shares unless the same
ranks junior to the Preferred Stock both as to dividends and
as to the distribution of assets on Liquidation, or increase
the authorized amount of the Preferred Stock, or increase the
authorized amount of any additional class of shares unless the
same ranks junior to the Preferred Stock both as to dividends
and as to the distribution of assets on Liquidation, or create
or authorize any obligations or securities convertible into or
exchangeable for shares of Preferred Stock or into shares of
any other class unless the same ranks junior to the Preferred
Stock both as to dividends and as to the distribution of
assets on Liquidation, whether any such creation or
authorization or increase shall be by means of amendment of
the Certificate of Incorporation, merger, consolidation,
recapitalization or otherwise.
30
(ii) The Corporation will not amend, alter or repeal the
Corporation's Certificate of Incorporation or By-laws in any
manner, or file any directors' resolutions pursuant to Section
151(g) of the Delaware General Corporation Law containing any
provision, in either case which affects the respective
preferences, voting power, qualifications, special or relative
rights or privileges of the Preferred Stock or the Common
Stock or which in any manner adversely affects the Preferred
Stock or the Common Stock or the holders thereof.
II.
COMMON STOCK
All shares of Common Stock shall be identical and shall
entitle the holders thereof to the same rights and privileges:
1. Dividends
When and as dividends are declared upon the Common Stock,
whether payable in cash, in property or in shares of stock of the Corporation,
the holders of Common Stock shall be entitled to share equally, share for share,
in such dividends.
2. Voting Rights
Each holder of Common Stock shall be entitled to one vote per
share.'
FIFTH: Effective upon the filing of this Certificate of Merger
with the Secretary of State of the State of Delaware (the "Effective Time"),
each share of Common Stock, $.01 par value, of MedE issued and outstanding at
the Effective Time shall be reclassified into a unit consisting of (i) .5 shares
of Common Stock and (ii) .005 shares of Preferred Stock and all shares of
Preferred Stock, $.01 par value, of MedE shall be canceled. Pursuant to Section
155 of the DGCL, the Board of Directors has determined that no fractional shares
of Common Stock will be issued in connection with the reclassification described
above, and that in lieu of the issuance of any fractional shares, the Surviving
Corporation shall pay, in cash, to those entitled thereto the fair value of
fractional interests as of the time when those entitled to receive such
fractions are determined.
SIXTH: The executed Merger Agreement is on file at the
principal place of business of the Surviving Corporation. The address of the
principal place of business of the Surviving Corporation is 333 Ovington
Boulevard, Suite 702, Mitchel Field, New York 11553.
SEVENTH: A copy of the Merger Agreement will be furnished by
the Surviving Corporation, on request and without cost, to any stock-
holder of either of the Constituent Corporations.
EIGHTH: The effective date of the Merger shall be , 1995.
31
IN WITNESS WHEREOF, MedE America Corporation has caused this
Certificate of Merger to be executed as of this day of , 1995.
MEDE AMERICA CORPORATION
By:
---------------------------
Name:
Title:
32
CERTIFICATE OF AMENDMENT
to
CERTIFICATE OF INCORPORATION
of
MEDE AMERICA CORPORATION
MEDE AMERICA CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
FIRST: that the following resolutions were duly adopted by
unanimous written consent of the Board of Directors of the Corporation, setting
forth proposed amendments to the Certificate of Incorporation of the
Corporation; determining that the capital of the Corporation will not be
decreased on account of such amendments; and declaring such amendments to be
advisable and directing that such amendments be submitted to the stockholders of
the Corporation for its approval. The resolutions are as follows:
"RESOLVED, that there is hereby adopted an amendment to the
Corporation's Certificate of Incorporation pursuant to which the
authorized capital stock of the Corporation shall be changed from
24,215,000 shares, consisting of 215,000 shares of Preferred Stock,
$.01 par value ("Preferred Stock"), and 24,000,000 shares of Common
Stock, $.01 par value ("Common Stock"), to 29,250,000 shares,
consisting of 250,000 shares of Preferred Stock and 29,000,000 shares
of Common Stock and, in connection with such changes, the first
paragraph of Article FOURTH of the Certificate of Incorporation of the
Corporation shall be amended to read in its entirety as follows:
'FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 29,250,000
shares, consisting of 250,000 shares of Preferred Stock, $.01 par value
("Preferred Stock") and 29,000,000 shares of Common Stock, $.01 par
value ("Common Stock").'
"RESOLVED that the Board of Directors determines that the
capital of the Corporation will not be decreased on account of the
foregoing amendment, declares the foregoing amendment to the
Corporation's Certificate of Incorporation to be advisable and directs
that the amendment be submitted
to the stockholders of the Corporation for their approval pursuant to
Section 242(b) of the General Corporation Law of the State of
Delaware."
SECOND: that the Amendment of the Certificate of Incorporation
effected by this Certificate was duly authorized by the holders of a majority of
the outstanding capital stock of the Corporation entitled to vote thereon, after
first having been declared advisable by the Board of Directors of the
Corporation, all in accordance with the provisions of Section 242 of the
Delaware General Corporation Law.
THIRD: that the capital of the Corporation will not be reduced
under, or by reason of, the foregoing amendment to the Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, MEDE AMERICA CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
its , who hereby acknowledges under penalties of perjury that the
facts herein stated are true and that this certificate is his act and deed, this
day of , 1995.
MEDE AMERICA CORPORATION
By:
------------------------------
Name:
Title: