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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest Event reported): May 15, 2000
CITATION COMPUTER SYSTEMS, INC.(R)
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(Exact name of Registrant as specified in its charter)
Missouri 0-20284 43-1174397
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(States or other jurisdiction of (Commission file number) (IRS Employer
incorporation or organization) Identification Number)
424 S. Woods Mill Road, Suite 200, St. Louis, MO 63017
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(Address of principal executive offices, zip code)
Registrant telephone number, including area code: (314) 579-7900
NOT APPLICABLE
(Former name or former address, if changed since last report.)
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Form 8-K
CITATION Computer Systems, Inc.(R)
ITEM 5. OTHER EVENTS.
On May 15, 2000, CITATION Computer Systems, Inc., a Missouri
corporation ("CITATION"), Cerner Corporation, a Delaware corporation ("Cerner"),
and Cerner Performance Logistics, Inc., a Delaware corporation and wholly owned
subsidiary of Cerner ("Logistics"), entered into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which CITATION will be merged with and
into Logistics (the "Merger"). The Board of Directors of CITATION unanimously
approved the Merger at its meeting held on May 12, 2000.
In accordance with the Merger Agreement, with respect to each
holder of CITATION common stock, $.10 par value (the "CITATION Common Stock"):
(1) 90% of the shares of CITATION Common Stock held by such holder immediately
prior to the effective time of the Merger (the "Effective Time") shall be
converted into that number of shares of Cerner common stock, $.01 par value
("Cerner Common Stock") determined by multiplying the number of such shares of
CITATION Common Stock times the Exchange Ratio (defined below); and (2) 10% of
the shares of CITATION Common Stock held by such holder at the Effective Time
shall be converted into the right to receive $5.10 in cash per shares of
CITATION Common Stock (the "Merger Consideration"). The Exchange Ratio is
0.1695, subject to adjustment in the event of any reclassification,
recapitalization, stock split, or stock dividend with respect to CITATION or
Cerner Common Stock prior to the Effective Time. In addition, each option to
purchase CITATION Common Stock outstanding at the Effective Time, whether or not
then exercisable, will be converted into the right to receive that number of
shares of Cerner Common Stock determined by multiplying the number of shares of
CITATION Common Stock subject to such option or right by the Exchange Ratio at a
price per share determined by dividing the per-share exercise price specified in
such stock option or stock appreciation right by the Exchange Ratio.
Consummation of the Merger is subject to various conditions,
including: (i) the approval of the Merger and the Merger Agreement by the
shareholders of CITATION; (ii) the expiration or earlier termination of any
waiting period applicable to the Merger under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended; and (iii) the satisfaction of certain
other conditions.
Under the Merger Agreement, CITATION agreed to submit the Merger
Agreement and the transactions contemplated thereby for approval at a meeting of
its shareholders. Also under the Merger Agreement, six executive officers and
directors of CITATION ("Shareholders") have agreed with Cerner, pursuant to a
separate Shareholder Agreement, dated as of May 15, 2000 (the "Shareholder
Agreement"), by and among Cerner and the Shareholders, to vote all shares of
CITATION Common Stock held by them in favor of the Merger Agreement and the
Merger. The Shareholders collectively beneficially own approximately 29% of the
outstanding shares of CITATION Common Stock (plus options to purchase up to an
additional 411,000 shares of CITATION Common Stock), based upon 3,867,000 shares
of CITATION Common Stock outstanding on May 17, 2000. In addition, the
Shareholders granted to Cerner an irrevocable proxy
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to vote their shares to approve the Merger Agreement and the transactions
contemplated thereby and an option to purchase, under certain circumstances, all
or a portion of their shares of CITATION Common Stock outstanding on the date of
exercise of the option for the Merger Consideration described above. The
Shareholder Agreement was entered into by the Shareholders as a requirement of
Cerner to enter into the Merger Agreement.
Each of the preceding descriptions of the Merger Agreement and the
Shareholder Agreement is qualified in its entirety by reference to the copies of
the Merger Agreement and Shareholder Agreement included as Exhibits 2.1 and 2.2
hereto, respectively, and which are incorporated herein by reference.
INVESTORS ARE URGED TO READ THE PROXY STATEMENT/ PROSPECTUS INCLUDING ANY
AMENDMENTS OR SUPPLEMENTS THERETO WHICH WILL BE PREPARED BY CITATION IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT. INVESTORS
ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS BECAUSE IT WILL CONTAIN
IMPORTANT INFORMATION TO INVESTORS. WHEN COMPLETED, THE PROXY
STATEMENT/PROSPECTUS WILL BE MAILED TO THE SHAREHOLDERS OF CITATION. COPIES OF
THE PROXY STATEMENT/PROSPECTUS MAY BE OBTAINED FOR FREE BY CONTACTING CITATION
AND AT THE SEC'S WEB SITE AT WWW.SEC.GOV.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated as of May 15,
2000, by and among CITATION Computer Systems, Inc.,
Cerner Corporation and Cerner Performance Logistics,
Inc.
2.2 Shareholder Agreement, dated as of May 15, 2000, by and
among Cerner Corporation and certain Shareholders of
CITATION Computer Systems, Inc.
99.1 Text of press release issued by CITATION announcing the
signing of the Merger Agreement and Fourth Quarter results.
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Form 8-K
CITATION Computer Systems, Inc.(R)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CITATION COMPUTER SYSTEMS, INC.
Date: May 18, 2000 /s/ Richard D. Neece
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BY: Richard D. Neece
President
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EXHIBIT INDEX
Exhibit Number Description
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2.1 Agreement and Plan of Merger, dated as of May 15,
2000, by and among CITATION Computer Systems, Inc.,
Cerner Corporation and Cerner Performance Logistics,
Inc. (filed without schedules or exhibits. CITATION
hereby undertakes to provide copies of the schedules or
exhibits to the Commission staff upon request)
2.2 Shareholder Agreement, dated as of May 15, 2000, by and
among Cerner Corporation and certain Shareholders of
CITATION Computer Systems, Inc.
99.1 Text of press release issued by CITATION announcing the
signing of the Merger Agreement and Fourth Quarter results.
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF
MAY 15, 2000
AMONG
CERNER CORPORATION,
CERNER PERFORMANCE LOGISTICS, INC.
AND
CITATION COMPUTER SYSTEMS, INC.
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ARTICLE I DEFINITIONS............................................................................................4
ARTICLE II THE MERGER............................................................................................5
Section 2.1. .......................................................................................5
Section 2.2. Dissenting Shares......................................................................8
Section 2.3. Surrender of Certificates..............................................................9
Section 2.4. Affiliates............................................................................10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CERNER............................................................11
Section 3.1. Corporate Existence and Power.........................................................11
Section 3.2. Corporate Authorization...............................................................11
Section 3.3. Governmental Authorization............................................................11
Section 3.4. Non-Contravention.....................................................................11
Section 3.5. Cerner SEC Documents..................................................................12
Section 3.6. Information to be Supplied............................................................12
Section 3.7. Absence of Certain Changes............................................................13
Section 3.8. Litigation............................................................................13
Section 3.9. Finders' Fees.........................................................................13
Section 3.10. Capitalization........................................................................13
Section 3.11. Financial Statements; No Material Undisclosed Liabilities.............................14
Section 3.12. Taxes.................................................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CITATION...........................................................15
Section 4.1. Corporate Existence and Power.........................................................15
Section 4.2. Corporate Authorization...............................................................15
Section 4.3. Governmental Authorization............................................................15
Section 4.4. Non-Contravention.....................................................................16
Section 4.5. Capitalization........................................................................16
Section 4.6. Subsidiaries..........................................................................17
Section 4.7. Financial Statements; No Material Undisclosed Liabilities.............................17
Section 4.8. CITATION SEC Documents................................................................17
Section 4.9. Information to be Supplied............................................................18
Section 4.10. Absence of Certain Changes............................................................18
Section 4.11. Litigation............................................................................19
Section 4.12. Taxes.................................................................................19
Section 4.13. Employee Benefits.....................................................................20
Section 4.14. Compliance with Laws; Licenses, Permits and Registrations.............................21
Section 4.15. Title to Properties...................................................................22
Section 4.16. Intellectual Property.................................................................22
Section 4.17. Environmental Matters.................................................................23
Section 4.18. Finders' Fees; Opinions of Financial Advisor..........................................23
Section 4.19. Required Vote and Waiver; Board Approval..............................................24
Section 4.20. State Takeover Statutes...............................................................24
Section 4.21. Tax Treatment.........................................................................24
Section 4.22. Certain Agreements....................................................................24
Section 4.23. Employment Agreements.................................................................25
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Section 4.24. Transactions With Directors, Officers and Affiliates..................................25
Section 4.25. Material Contracts....................................................................25
Section 4.26. Certain Business Practices. ..........................................................26
Section 4.27. Insurance. ...........................................................................26
ARTICLE V REPRESENTATIONS AND WARRANTIES OF MERGER SUB..........................................................27
Section 5.1. Organization..........................................................................27
Section 5.2. Corporate Authorization...............................................................27
Section 5.3. Non-Contravention. ...................................................................27
Section 5.4. No Business Activities. ..............................................................27
Section 5.5. Taxes.................................................................................27
ARTICLE VI COVENANTS OF CITATION................................................................................27
Section 6.1. CITATION Interim Operations...........................................................27
Section 6.2. Acquisition Proposals; Board Recommendation...........................................30
Section 6.3. Employment Agreements.................................................................32
Section 6.4. Shareholder Agreement. ...............................................................32
ARTICLE VII COVENANTS OF CITATION AND CERNER....................................................................32
Section 7.1. Reasonable Best Efforts...............................................................32
Section 7.2. Certain Filings; Cooperation in Receipt of Consents; Listing..........................32
Section 7.3. Public Announcements..................................................................34
Section 7.4. Access to Information; Notification of Certain Matters................................34
Section 7.5. Further Assurances....................................................................35
Section 7.6. Tax Treatment.........................................................................35
Section 7.7. Affiliates............................................................................36
Section 7.8. Benefit Matters.......................................................................36
Section 7.9. Antitrust Matters.....................................................................36
Section 7.10. Exemption From Liability Under Section 16(b)..........................................36
Section 7.11. Indemnification and Insurance.........................................................37
ARTICLE VIII CONDITIONS TO THE MERGER...........................................................................38
Section 8.1. Conditions to the Obligations of Each Party...........................................38
Section 8.2. Conditions to the Obligations of Cerner and Merger Sub................................39
Section 8.3. Conditions to the Obligations of CITATION.............................................40
ARTICLE IX TERMINATION..........................................................................................41
Section 9.1. Termination...........................................................................41
Section 9.2. Effect of Termination.................................................................42
Section 9.3. Termination Fees; Other Fees..........................................................43
ARTICLE X MISCELLANEOUS.........................................................................................43
Section 10.1. Notices...............................................................................43
Section 10.2. Amendments; No Waivers................................................................44
Section 10.3. Assignment............................................................................44
Section 10.4. Governing Law.........................................................................45
Section 10.5. Counterparts; Effectiveness...........................................................45
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Section 10.6. No Third Party Beneficiaries..........................................................45
Section 10.7. Interpretation........................................................................45
Section 10.8. Enforcement...........................................................................45
Section 10.9. Entire Agreement......................................................................45
Section 10.10. Severability..........................................................................45
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APPENDICES
Appendix I - Definitions
EXHIBITS
Exhibit A - Certificate of Merger
Exhibit B - Articles of Merger
Exhibit C - Representation Letter from Cerner
Exhibit D - Representation Letter from CITATION
Exhibit E - Affiliate Agreement
Exhibit F - List of Employees
Exhibit G - Form of Employment Agreement
Exhibit H - Form of Legal Opinion - CITATION
Exhibit I - Form of Legal Opinion - Cerner
Exhibit J - Confidentiality Agreement
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 15, 2000 (the
"Agreement"), by and among Cerner Corporation, a Delaware corporation
("Cerner"), Cerner Performance Logistics, Inc., a Delaware corporation and a
wholly-owned subsidiary of Cerner ("Merger Sub"), and CITATION Computer Systems,
Inc., a Missouri corporation ("CITATION").
RECITALS:
WHEREAS, the respective Boards of Directors of Cerner, CITATION and
Merger Sub have determined that the merger of CITATION with and into Merger Sub
(the "Merger"), upon the terms and subject to the conditions set forth in this
Agreement, would be fair and in the best interests of their respective
stockholders, and such Boards of Directors have approved such Merger, pursuant
to which each issued and outstanding share of common stock, par value $.10 per
share ("Common Stock"), of CITATION (the "Shares") (other than (a) Shares owned,
directly or indirectly, by Cerner or any Subsidiary of Cerner and (b) dissenting
shares) will be converted into the right to receive cash and shares of Cerner
Common Stock as provided herein; and
WHEREAS, the Merger and this Agreement require the affirmative vote, in
accordance with applicable law and the Articles of Incorporation and By-laws of
CITATION, of holders of at least two-thirds of the outstanding Shares entitled
to vote thereon for the approval thereof (the "CITATION Shareholder Approval");
and
WHEREAS, Cerner is unwilling to enter into this Agreement unless,
contemporaneously with the execution and delivery of this Agreement, certain
directors and executive officers of CITATION who are shareholders of CITATION
enter into an agreement (the "Shareholder Agreement") granting to Cerner
irrevocable proxies to vote all Shares beneficially owned by such shareholders
"For" the merger in connection with the CITATION Shareholder Approval and an
option to purchase all Shares beneficially owned by such shareholders under
certain circumstances; and
WHEREAS, Cerner, CITATION and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the capitalized terms used in this
Agreement shall have the meanings specified or referred to in Appendix I hereto
which is incorporated herein by reference.
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ARTICLE II
THE MERGER
SECTION 2.1
(a) The Merger. Upon the terms and subject to the conditions of
this Agreement and in accordance with the General Corporation Law of the
State of Delaware (the "Delaware Law") and The General and Business
Corporation Law of Missouri (the "Missouri Law"), at the Effective Time
CITATION shall be merged with and into Merger Sub. As a result of the
Merger, the separate corporate existence of CITATION shall cease and Merger
Sub shall continue as the surviving corporation of the Merger (the
"Surviving Corporation").
(b) Effective Time. As soon as practicable after the Closing of the
Merger, (i) the Certificate of Merger for the Merger ("Certificate of
Merger"), in substantially the form attached hereto as Exhibit A, prepared
and executed in accordance with the relevant provisions of the Delaware
Law, shall be filed with the Secretary of State of Delaware and (ii) the
Articles of Merger for the Merger ("Articles of Merger") in substantially
the form attached hereto as Exhibit B, prepared and executed in accordance
with the relevant provisions of the Missouri Law shall be filed with the
Secretary of State of Missouri. The parties hereto agree to take all such
further actions as may be required by law to make the Merger effective. The
Merger shall become effective in accordance with the terms of this
Agreement, the Certificate of Merger and the Articles of Merger at the time
and date contemplated therein (such time and date being referred to herein
as the "Effective Time").
(c) The Closing. The Closing of the Merger and transactions
contemplated by this Agreement will take place at 10:00 a.m. on a date
mutually agreed upon by the parties hereto, which shall be no later than
the third Business Day following the date on which all of the conditions to
the obligations of the parties hereunder set forth in Article VIII hereof
have been satisfied or waived. The Closing shall take place at the offices
of Stinson, Mag & Fizzell, P.C., at 1201 Walnut Street, Suite 2800, Kansas
City, Missouri, or such other place as may be mutually agreed upon by the
parties hereto.
(d) Effects of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in the Delaware Law and the Missouri
Law. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all the property, rights, privileges, powers and
franchises of Merger Sub and CITATION shall be vested in the Surviving
Corporation, and all debts, liabilities and duties of Merger Sub and
CITATION shall become the debts, liabilities and duties of the Surviving
Corporation. In addition, the Merger shall have the following effects:
(i) Certificate of Incorporation. The Certificate of
Incorporation of Merger Sub as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the
Surviving Corporation; provided that Article First thereof shall be
amended, effective as of the Effective Time, to read
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in its entirety as follows: The name of the corporation is
"Cerner CITATION, Inc."
(ii) Bylaws. The Bylaws of Merger Sub as in effect
immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation.
(iii) Board of Directors. The directors of Merger Sub at the
Effective Time shall be the initial directors of the
Surviving Corporation, until the earlier of their resignation
or removal or until their respective successors are duly
elected and qualified, as the case may be.
(iv) Officers. The officers of Merger Sub at the Effective
Time shall be the initial officers of the Surviving
Corporation, until the earlier of their resignation or
removal or until their respective successors are duly elected
or appointed and qualified, as the case may be.
(e) Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of the parties hereto or
their respective stockholders:
(i) Common Stock. With respect to each holder of record of
Common Stock outstanding immediately prior to the Effective Time
(except for persons who object to the Merger and comply with all
provisions of Section 351.455 of the Missouri Law concerning the
right of such holders to dissent from the Merger and demand fair
value for their shares), (A) 90% of the shares of CITATION Common
Stock held by such holder shall be converted into that number of
shares of Cerner Common Stock determined by multiplying the number
of such shares of CITATION Common Stock times the Exchange Ratio
(together with any cash in lieu of fractional shares of Cerner
Common Stock to be paid pursuant to Section 2.1(e)(iv)), and (B)
10% of the shares of CITATION Common Stock held by such holder
shall be converted into the right to receive $5.10 in cash per
share of CITATION Common Stock (collectively, the "Merger
Consideration").
(ii) CITATION Stock held by Cerner, Merger Sub and CITATION.
Each share of Common Stock held by CITATION as treasury stock or
owned by Cerner, Merger Sub or any Cerner or CITATION Subsidiaries
immediately prior to the Effective Time shall be cancelled without
payment of any consideration therefor and shall cease to exist.
(iii) Merger Sub Common Stock. Each share of common stock of
Merger Sub outstanding and each share held in treasury immediately
prior to the Effective Time shall remain outstanding and be
unaffected by the Merger.
(iv) Fractional Shares. No fraction of a share of Cerner
Common Stock shall be issued in connection with the conversion of
Common Stock in the Merger and the distribution of Cerner Common
Stock in respect thereof, but in lieu of such fraction, the
Exchange Agent shall make a cash payment (without interest and
subject to the payment of any applicable withholding Taxes) equal
to the same fraction of the market value of a full share of Cerner
Common Stock,
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computed on the basis of the Average Cerner Stock Price
determined as of the Closing Date.
(f) Stock Options and Other Stock Compensation.
(i) On or prior to the Effective Time, CITATION will
take all action necessary such that each stock option or
other stock related right or other form of stock related
incentive or deferred compensation that was granted pursuant
to the CITATION Employee Plans (other than CITATION's 401(k)
Plan, which will receive the consideration set forth in
Section 2.1(e)(i)) (as defined in Section 4.13(a)) prior to
the Effective Time and which remains outstanding immediately
prior to the Effective Time (collectively, the "Stock
Rights") shall cease to represent a right with respect to
shares of Common Stock and shall be converted, at the
Effective Time, into a right, on the same terms and
conditions as were applicable under such Stock Right (but
taking into account any changes thereto (except that there
shall be no acceleration in the vesting or exercisability of
such option, right or incentive compensation by reason of
this Agreement, the Merger or the other matters contemplated
by this Agreement other than existing agreements which by
their terms provide for acceleration, which agreements are
set forth on Schedule 2.1(f) indicating the optionees
thereof), provided for in the CITATION Employee Plans or in
the terms of such right by reason of this Agreement or the
transactions contemplated hereby), with respect to that
number of shares of Cerner Common Stock determined by
multiplying the number of shares of Common Stock subject to
such Stock Right, times the Exchange Ratio, rounded, if
necessary, to the nearest whole share of Cerner Common Stock,
at (in the case of a stock option or stock appreciation
right) a price per share (rounded to the nearest
one-hundredth of a cent) determined by dividing the per-share
exercise price specified in such stock option or stock
appreciation right, as applicable, by the Exchange Ratio;
provided, however, that in the case of any stock option to
which Section 421 of the Code applies by reason of its
qualification under Section 422 of the Code, the option
price, the number of shares subject to such option and the
terms and conditions of exercise of such option shall be
determined in a manner consistent with the requirements of
Section 424(a) of the Code.
(ii) As soon as practicable after the Effective Time,
the Surviving Corporation shall deliver to the holders of
Stock Rights appropriate notices setting forth such holders'
rights pursuant to the CITATION Employee Plans (except that
there shall be no acceleration in the vesting or
exercisability of such option, right or incentive
compensation by reason of this Agreement, the Merger or the
other matters contemplated by this Agreement, other than
pursuant to those agreements set forth on Schedule 2.1(f))
and the agreements evidencing the grants of such Stock Rights
shall continue in effect on the same terms and conditions
(subject to the adjustments required by this Section
2.1(f)(ii) after giving effect to the Merger and the terms of
the CITATION Employee Plans (except that there shall be no
acceleration in the vesting or exercisability of such option,
right or incentive compensation by reason of this Agreement,
the Merger or the other matters contemplated by this
Agreement other than existing agreements which by their
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terms provide for acceleration)). To the extent permitted by
law, Cerner and the Surviving Corporation shall comply with
the terms of the CITATION Employee Plans and shall take such
reasonable steps as are necessary or required by, and subject
to the provisions of, such CITATION Employee Plans, to have
the stock options which qualified as incentive stock options
prior to the Effective Time continue to qualify as incentive
stock options of Cerner after the Effective Time.
(iii) Cerner shall take all corporate action necessary
to reserve for issuance a sufficient number of shares of
Cerner Common Stock for delivery upon exercise of Stock
Rights in accordance with this Section 2.1(f). Promptly after
the Effective Time, Cerner shall file a registration
statement(s) on Form S-8 with respect to the shares of Cerner
Common Stock subject to such stock options or other stock
related rights or other forms of stock related incentive or
deferred compensation, and shall use commercially reasonable
efforts to maintain the effectiveness of such registration
statement or registration statements (and maintain the
current status of the prospectus or prospectuses contained
therein) for so long as such stock options or other stock
related rights or other forms of stock related incentive or
deferred compensation remain outstanding. With respect to
those individuals who subsequent to the Merger will be
subject to the reporting requirements under Section 16(a) of
the Exchange Act, where applicable, Cerner shall administer
the CITATION Employee Plans in a manner consistent with the
exemptions provided by Rule 16b-3 promulgated under the
Exchange Act.
(g) Certain Adjustments. If, between the date of this
Agreement and the Effective Time, the outstanding Common Stock or
Cerner Common Stock shall have been changed into a different number of
shares or different class by reason of any reclassification,
recapitalization, stock split, reverse stock split, combination or
exchange of shares, or a stock dividend or dividend payable in any
other securities shall be declared with a record date within such
period, or any similar event shall have occurred, the Merger
Consideration and Exchange Ratio shall each be appropriately adjusted
to provide to the holders of Common Stock or participants in the
CITATION Employee Plans the same economic effect as contemplated by
this Agreement prior to such event.
SECTION 2.2. Dissenting Shares. Notwithstanding Section 2.1(e), shares
of Common Stock outstanding immediately prior to the Effective Time and held by
a holder who has not voted in favor of the Merger or consented thereto in
writing and who has properly demanded appraisal for such shares of Common Stock
in accordance with Section 351.455 of the Missouri Law shall not be converted
into the Merger Consideration and such holder shall be entitled only to such
rights to appraisal and payment under the Missouri Law, unless such holder fails
to perfect or withdraws or otherwise loses his right to appraisal. If after the
Effective Time such holder fails to perfect or withdraws or loses his right to
appraisal, such shares of Common Stock shall be treated as if they had been
converted as of the Effective Time into the Merger Consideration. CITATION shall
give the Surviving Corporation prompt notice of any demands received by CITATION
for appraisal of shares of Common Stock, and the Surviving Corporation shall
have the right to participate in all negotiations and proceedings with respect
to such
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demands. CITATION shall not, except with the prior written consent of the
Surviving Corporation, make any payment with respect to, or settle or offer to
settle, any such demands.
SECTION 2.3. Surrender of Certificates.
(a) Cerner, CITATION and Merger Sub hereby appoint the Exchange
Agent to act as the exchange agent in connection with the Merger.
Except as otherwise provided in this Article II, from and after the
Effective Time, each holder of a certificate that immediately prior to
the Effective Time represented outstanding shares of Common Stock
(collectively, the "Certificates") shall be entitled to receive in
exchange therefor, upon surrender thereof to the Exchange Agent, (i) a
certificate or certificates representing the number of whole shares of
Cerner Common Stock into which such holder's shares were converted in
the Merger pursuant to Section 2.1(e)(i)(A) and (ii) cash in an amount
equal to the cash consideration to which such holder is entitled to
receive pursuant to Section 2.1(e)(i)(B). Prior to the Effective Time,
the Surviving Corporation will deliver to the Exchange Agent, in trust
for the benefit of the holders of Common Stock and Cerner Common Stock,
(i) certificates representing all of the shares of Cerner Common Stock
to be issued in connection with the Merger pursuant to Section
2.1(e)(i)(A), (ii) cash in an amount sufficient for payment in lieu of
fractional shares necessary to make the exchanges contemplated by this
Article II on a timely basis, and (iii) cash in an amount equal to the
cash portion of the Merger Consideration pursuant to Section
2.1(e)(i)(B) (such shares of Cerner Common Stock and cash together with
any dividends or distributions with respect thereto, being hereinafter
referred to as the "Exchange Fund").
(b) Promptly after the Effective Time, the Exchange Agent shall
mail to each record holder of Common Stock as of the Effective Time, a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to Certificates shall pass, only
upon proper delivery of the Certificates to the Exchange Agent) and
instructions for use in effecting the surrender of Certificates in
exchange for the Merger Consideration. Upon surrender to the Exchange
Agent of a Certificate, together with such letter of transmittal duly
executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefor,
certificates representing shares of Cerner Common Stock as set forth in
this Article II and the cash portion of the Merger Consideration, and
such Certificate shall forthwith be canceled. No holder of a
Certificate or Certificates shall be entitled to receive any dividend
or other distribution from Cerner until the surrender of such holder's
Certificate for a certificate or certificates representing shares of
Cerner Common Stock. Upon such surrender, there shall be paid to the
holder the amount of any dividends or other distributions (without
interest) that theretofore became payable with record dates after the
Effective Time, but that were not paid by reason of the foregoing, with
respect to the number of whole shares of Cerner Common Stock
represented by the certificates issued upon surrender, which amount
shall be delivered to the Exchange Agent by Cerner from time to time as
such dividends or other distributions are declared. If delivery of
certificates representing shares of Cerner Common Stock is to be made
to a person other than the person in whose name the Certificate
surrendered is registered or if any certificate for shares of Cerner
Common Stock as the case may be, is to be issued in a name other than
that in which the Certificate
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surrendered therefor is registered, it shall be a condition of such
delivery or issuance that the Certificate so surrendered shall be
properly endorsed or otherwise in proper form for transfer and that the
person requesting such delivery or issuance shall pay any transfer or
other Taxes required by reason of such delivery or issuance to a person
other than the registered holder of the Certificate surrendered or
establish to the satisfaction of Cerner that such Tax has been paid or
is not applicable. Until surrendered in accordance with the provisions
of this Section 2.3, each Certificate shall represent for all purposes
only the right to receive shares of Cerner Common Stock (and cash in
lieu of fractional shares) and the cash portion of the Merger
Consideration as provided in this Article II without any interest
thereon.
(c) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of the shares of
Common Stock that were outstanding prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation for transfer, they shall be canceled and exchanged for
shares of Cerner Common Stock (and cash in lieu of fractional shares)
as provided in this Article II, in accordance with the procedures set
forth in this Section 2.3.
(d) Any portion of the Exchange Fund made available to the
Exchange Agent which remains undistributed to the former shareholders
of CITATION for one year after the Effective Time shall be delivered to
the Surviving Corporation, upon demand, and any shareholders of
CITATION who have not theretofore complied with this Article II shall
thereafter look only to the Surviving Corporation for payment of their
claim for Merger Consideration and any dividends or distributions with
respect to Cerner Common Stock.
(e) None of CITATION, Cerner, or the Surviving Corporation
shall be liable to any holder of shares of Common Stock for the Merger
Consideration (or dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law. Any amounts remaining unclaimed by
holders of any such shares two years after the Effective Time (or such
earlier date immediately prior to such time as such amounts would
otherwise escheat to or become property of any Governmental Entity)
shall, to the extent permitted by applicable law, become the property
of the Surviving Corporation free and clear of any claims or interest
of any such holders or their successors, assigns or personal
representatives previously entitled thereto.
SECTION 2.4. Affiliates. Notwithstanding anything to the contrary
herein, to the full extent permitted by law, no certificates representing shares
of Cerner Common Stock or cash shall be delivered to a Person who may be deemed
an "affiliate" of CITATION in accordance with Section 7.7 hereof, until such
Person has executed and delivered an Affiliate Agreement pursuant to Section
7.7.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CERNER
Except as disclosed in the Cerner Disclosure Schedule delivered to
CITATION separately prior to, or contemporaneously with, the date hereof (each
section or subsection of which qualifies the correspondingly numbered
representation, warranty or covenant to the extent specified therein), Cerner
represents and warrants to CITATION that:
SECTION 3.1. Corporate Existence and Power. Cerner is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware, and has all corporate powers required to carry on its
business as now conducted. Cerner is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified,
individually or in the aggregate, would not be reasonably likely to have a
Cerner Material Adverse Effect.
SECTION 3.2. Corporate Authorization. The execution, delivery and
performance by Cerner of this Agreement and the consummation by Cerner of the
transactions contemplated hereby are within Cerner's corporate powers and have
been duly authorized by all necessary corporate action. Assuming that this
Agreement constitutes the valid and binding obligation of CITATION, this
Agreement constitutes a valid and binding agreement of Cerner, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws, now or
hereafter in effect, relating to or affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.3. Governmental Authorization. The execution, delivery and
performance by Cerner of this Agreement and the consummation by Cerner of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Entity other than (a) the filing of (i) Articles
of Merger in accordance with the Missouri Law, (ii) a Certificate of Merger in
accordance with the Delaware Law, and (iii) appropriate documents with the
relevant authorities of other states or jurisdictions in which Cerner or any
Cerner Subsidiary is qualified to do business; (b) compliance with any
applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act") by Cerner and CITATION; (c) compliance with any applicable
requirements of the Securities Act and the Exchange Act; (d) such as may be
required under any applicable state securities or blue sky laws; and (e) such
other consents, approvals, actions, orders, authorizations, registrations,
declarations and filings that, if not obtained or made, would not, individually
or in the aggregate, (x) be reasonably likely to have a Cerner Material Adverse
Effect or (assuming for this purpose that the Effective Time had occurred) a
Surviving Corporation Material Adverse Effect, or (y) prevent or materially
impair the ability of Cerner to consummate the transactions contemplated by this
Agreement.
SECTION 3.4. Non-Contravention. The execution, delivery and performance
by Cerner of this Agreement and the consummation by Cerner of the transactions
contemplated hereby do not and will not (a) contravene or conflict with Cerner's
Certificate of Incorporation or Bylaws, (b) assuming compliance with the matters
referred to in Section 3.3, contravene or conflict with
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<PAGE> 13
or constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Cerner or any Cerner
Subsidiary, (c) constitute a default under or give rise to a right of
termination, cancellation or acceleration of any right or obligation of Cerner
or any Cerner Subsidiary or to a loss of any benefit or status to which Cerner
or any Cerner Subsidiary is entitled under any provision of any agreement,
contract or other instrument binding upon Cerner or any Cerner Subsidiary or any
license, franchise, permit or other similar authorization held by Cerner or any
Cerner Subsidiary, or (d) result in the creation or imposition of any Lien on
any asset of Cerner or any Cerner Subsidiary other than, in the case of each of
clauses (b), (c) and (d), any such items that would not, individually or in the
aggregate (x) be reasonably likely to have a Cerner Material Adverse Effect or
(y) prevent or materially impair the ability of Cerner to consummate the
transactions contemplated by this Agreement.
Section 3.5. Cerner SEC Documents.
(a) Cerner has filed all reports, filings, registration
statements and other documents required to be filed by it with the SEC
since January 1, 1995. No Cerner Subsidiary is required to file any
form, report, registration statement or prospectus or other document
with the SEC.
(b) As of its filing date, each Cerner SEC Document complied as
to form in all material respects with the applicable requirements of
the Securities Act and/or the Exchange Act, as the case may be.
(c) No Cerner SEC Document filed pursuant to the Exchange Act
contained, as of its filing date, any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under
which they were made, not misleading. No Cerner SEC Document, as
amended or supplemented, if applicable, filed pursuant to the
Securities Act contained, as of the date such document or amendment
became effective, any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) Cerner and the Cerner Subsidiaries keep proper accounting
records in which all material assets and liabilities, and all material
transactions, of Cerner and the Cerner Subsidiaries are recorded in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis. No part of Cerner's or any
Cerner Subsidiary's accounting system or records, or access thereto, is
under the control of a Person who is not an employee of Cerner or such
Subsidiary.
SECTION 3.6. Information to be Supplied.
(a) The information to be supplied by Cerner expressly for
inclusion or incorporation by reference in the Joint Proxy
Statement/Prospectus will (i) in the case of the Registration
Statement, at the time it becomes effective, not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and (ii) in the case of the remainder
of the Joint Proxy Statement/Prospectus, at the time of the mailing
thereof,
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<PAGE> 14
and at the time of the Special Meeting, not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. The Joint Proxy Statement/Prospectus will comply
(with respect to information relating to Cerner) as to form in all
material respects with the provisions of the Securities Act and the
Exchange Act.
(b) Notwithstanding the foregoing, Cerner makes no
representation or warranty with respect to any statements made or
incorporated by reference in the Joint Proxy Statement/Prospectus based
on and in accordance with information supplied by CITATION.
SECTION 3.7. Absence of Certain Changes. Since January 1, 2000, except
as otherwise expressly contemplated by this Agreement, Cerner and the Cerner
Subsidiaries have conducted their business in the ordinary course consistent
with past practice and there has not been (a) any damage, destruction or other
casualty loss (whether or not covered by insurance) affecting the business or
assets of Cerner or any Cerner Subsidiary that, individually or in the
aggregate, has had or would be reasonably likely to have a Cerner Material
Adverse Effect, (b) any action, event, occurrence, development or state of
circumstances or facts that, individually or in the aggregate, has had or would
be reasonably likely to have a Cerner Material Adverse Effect or (c) any
incurrence, assumption or guarantee by Cerner of any material indebtedness for
borrowed money other than in the ordinary course and in amounts and on terms
consistent with past practices.
SECTION 3.8. Litigation. Section 3.8 of the Cerner Disclosure Schedule
contains a list and description of each action, suit, investigation, arbitration
or proceeding pending against, or to the Knowledge of Cerner threatened against,
Cerner or any Cerner Subsidiary or any of their respective assets or properties
before any arbitrator or Governmental Entity. None of such actions, suits,
investigations, arbitrations or proceedings, individually or in the aggregate,
is reasonably likely to have, a Cerner Material Adverse Effect. There are no
outstanding judgments, decrees, injunctions, awards or orders against Cerner
that are reasonably likely to have, individually or in the aggregate, a Cerner
Material Adverse Effect.
SECTION 3.9. Finders' Fees. There is no investment banker, broker,
finder or other intermediary that has been retained by, or is authorized to act
on behalf of, Cerner or any Cerner Subsidiary who might be entitled to any fee
or commission from CITATION or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
SECTION 3.10. Capitalization. The authorized capital stock of Cerner
consists of 150,000,000 shares of Cerner Common Stock and 1,000,000 shares of
preferred stock. At the close of business on April 1, 2000, (i) 33,802,391
shares of Cerner Common Stock were issued and outstanding, (ii) stock options
and warrants to purchase an aggregate 14,031,988 shares of Cerner Common Stock
were issued and outstanding (of which options and warrants to purchase an
aggregate of 5,241,303 shares of Cerner Common Stock were exercisable), (iii) no
shares of Cerner Common Stock were held in its treasury, except as disclosed in
the Cerner Financial Statements, (iv) no shares of preferred stock of Cerner
were issued and outstanding, and (v) no stock options and warrants to purchase
preferred stock of Cerner were issued and outstanding,
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<PAGE> 15
other than the rights issued in connection with the Amended and Restated Rights
Agreement, dated March 12, 1999, by and between Cerner and Exchange Agent. All
outstanding shares of capital stock of Cerner have been duly authorized and
validly issued and are fully paid and nonassessable.
SECTION 3.11. Financial Statements; No Material Undisclosed
Liabilities.
(a) The audited consolidated balance sheets of Cerner as of
January 3, 1998, January 2, 1999 and January 1, 2000, together with the
related audited consolidated statements of operations, stockholders'
equity and cash flows for the fiscal years then ended and the notes
thereto (the "Cerner Financial Statements") fairly present in all
material respects, in conformity with GAAP consistently applied (except
as may be indicated in the notes thereto), the financial position of
Cerner as of the dates thereof and its results of operations,
stockholders' equity and consolidated cash flows for the periods then
ended.
(b) There are no liabilities of Cerner of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise, in each case, that are required by GAAP to be set forth on a
balance sheet of Cerner, other than:
(i) liabilities or obligations disclosed or provided for
in the Cerner Balance Sheet or disclosed in the notes thereto;
(ii) liabilities or obligations under this Agreement or
incurred in connection with the transactions contemplated
hereby; and
(iii) other liabilities or obligations that individually
or in the aggregate, would not be reasonably likely to have a
Cerner Material Adverse Effect.
SECTION 3.12. Taxes.
(a) All Tax returns, statements, reports and forms
(collectively, the "Cerner Returns") required to be filed with any
taxing authority by, or with respect to, Cerner and the Cerner
Subsidiaries have been filed in substantial compliance with all
applicable laws.
(b) Cerner has timely paid all Taxes shown as due and payable
on the Cerner Returns that have been so filed, and all other Taxes not
subject to reporting obligations, and as of the time of filing, the
Cerner Returns correctly reflected the facts regarding the income,
business, assets, operations, activities and the status of Cerner and
the Cerner Subsidiaries (other than Taxes that are being contested in
good faith and for which adequate reserves are reflected on the Cerner
Balance Sheet).
(c) Cerner has made provision for all Taxes payable by them for
which no Cerner Return has yet been filed.
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<PAGE> 16
(d) The charges, accruals and reserves for Taxes with respect
to Cerner reflected on the Cerner Balance Sheet are materially adequate
under GAAP to cover the Tax liabilities accruing through the date
thereof.
(e) There is no action, suit, proceeding, audit or claim now
proposed or pending against or with respect to Cerner in respect of any
Tax that is reasonably likely to have a Cerner Material Adverse Effect.
(f) Cerner has not been a member of an affiliated,
consolidated, combined or unitary group other than one of which Cerner
was the common parent.
(g) Cerner does not hold any asset subject to a consent under
Section 341(f) of the Code.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CITATION
Except as disclosed in the CITATION Disclosure Schedule delivered to
Cerner separately prior to, or contemporaneously with, the date hereof (each
section or subsection of which qualifies the correspondingly numbered
representation, warranty or covenant to the extent specified therein),
CITATION represents and warrants to Cerner that:
SECTION 4.1. Corporate Existence and Power. CITATION is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Missouri, and has all corporate powers required to carry on its
business as now conducted. CITATION is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except where the failure to be
so qualified, individually or in the aggregate, would not be reasonably
likely to have a CITATION Material Adverse Effect. CITATION has heretofore
made available to Cerner true and complete copies of CITATION's Articles of
Incorporation and Bylaws as currently in effect.
SECTION 4.2. Corporate Authorization. The execution, delivery and
performance by CITATION of this Agreement and the consummation by CITATION of
the transactions contemplated hereby are within CITATION's corporate powers
and, except for the CITATION Shareholder Approval, have been duly authorized
by all necessary corporate action. Assuming that this Agreement constitutes
the valid and binding obligation of Cerner and Merger Sub, this Agreement
constitutes a valid and binding agreement of CITATION, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws, now or
hereafter in effect, relating to or affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.3. Governmental Authorization. The execution, delivery and
performance by CITATION of this Agreement and the consummation by CITATION of
the transactions contemplated hereby require no action by or in respect of,
or filing with, any Governmental Entity other than (a) the filing of (i) the
Articles of Merger in accordance with the Missouri Law,
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<PAGE> 17
(ii) the Certificate of Merger in accordance with the Delaware Law, and (iii)
appropriate documents with the relevant authorities of other states or
jurisdictions in which CITATION or any CITATION Subsidiary is qualified to do
business; (b) compliance with any applicable requirements of the HSR Act; (c)
compliance with any applicable requirements of the Securities Act and the
Exchange Act; (d) such as may be required under any applicable state
securities or blue sky laws; and (e) such other consents, approvals, actions,
orders, authorizations, registrations, declarations and filings that, if not
obtained or made, would not, individually or in the aggregate, (x) be
reasonably likely to have a CITATION Material Adverse Effect or (assuming for
this purpose that the Effective Time had occurred) a Surviving Corporation
Material Adverse Effect, or (y) prevent or materially impair the ability of
CITATION to consummate the transactions contemplated by this Agreement.
SECTION 4.4. Non-Contravention. The execution, delivery and
performance by CITATION of this Agreement and the consummation by CITATION of
the transactions contemplated hereby do not and will not (a) contravene or
conflict with CITATION's Articles of Incorporation or Bylaws, (b) assuming
compliance with the matters referred to in Section 4.3 and the CITATION
Shareholder Approval, contravene or conflict with or constitute a violation
of any provision of any law, regulation, judgment, injunction, order or
decree binding upon or applicable to CITATION, (c) constitute a breach or
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of CITATION or any CITATION
Subsidiary or to a loss of any benefit or status to which CITATION is
entitled under any provision of any agreement, contract or other instrument
binding upon CITATION or any CITATION Subsidiary or any license, franchise,
permit or other similar authorization held by CITATION, or (d) result in the
creation or imposition of any Lien on any asset of CITATION other than, in
the case of each of clauses (b), (c) and (d), any such items that would not,
individually or in the aggregate (x) be reasonably likely to have a CITATION
Material Adverse Effect or (y) prevent or materially impair the ability of
CITATION to consummate the transactions contemplated by this Agreement.
SECTION 4.5. Capitalization.
(a) The authorized capital stock of CITATION consists of 10,000,000
shares of Common Stock and 5,000,000 shares of CITATION Preferred Stock. At
the close of business on May 12, 2000, (i) 3,876,655 shares of Common Stock
were issued and outstanding, (ii) stock options ("CITATION Stock Options")
and warrants ("CITATION Warrants") to purchase an aggregate of 471,500 shares
of Common Stock were issued and outstanding (of which options and warrants to
purchase an aggregate of 381,898 shares of Common Stock were exercisable),
(iii) no shares of Common Stock were held in its treasury, (iv) no shares of
CITATION Preferred Stock were issued and outstanding, and (v) no stock
options and warrants to purchase CITATION Preferred Stock were issued and
outstanding. All outstanding shares of capital stock of CITATION have been
duly authorized and validly issued and are fully paid and nonassessable.
(b) As of the date hereof, except (i) as set forth in this Section
4.5, and (ii) for changes since March 31, 2000, resulting from the exercise
of stock options outstanding on such date, there are no outstanding (x)
shares of capital stock or other voting securities of CITATION, (y)
securities of CITATION convertible into or exchangeable for shares
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of capital stock or voting securities of CITATION, or (z) options or
other rights to acquire from CITATION, and no obligation of CITATION to
issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of CITATION
(the items in clauses (x), (y) and (z) being referred to collectively
as the "CITATION Securities"). There are no outstanding obligations of
CITATION or any CITATION Subsidiary to repurchase, redeem or otherwise
acquire any CITATION Securities. There are no outstanding contractual
obligations of CITATION to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any other
Person. There are no stockholder agreements, voting trusts or other
agreements or understandings to which CITATION is a party, or of which
CITATION is aware, relating to voting, registration or disposition of
any shares of capital stock of CITATION or granting to any person or
group of persons the right to elect, or to designate or nominate for
election, a director to the board of directors of CITATION.
SECTION 4.6. Subsidiaries. Except as set forth on the CITATION
Disclosure Statement, CITATION does not have any subsidiaries and does not
own or control, directly or indirectly, any stock or equity interest in any
corporation or other Person.
SECTION 4.7. Financial Statements; No Material Undisclosed Liabilities.
(a) The audited consolidated balance sheets of CITATION as of
March 31, 1998 and 1999 and the draft audited consolidated balance
sheet as of March 31, 2000, together with the related audited
consolidated statements of operations, shareholders' equity and cash
flows for the fiscal years then ended in the case of fiscal 1998 and
1999 and the draft audited financial statements in the case of fiscal
2000, and the notes thereto (the "CITATION Financial Statements")
fairly present in all material respects, in conformity with GAAP
consistently applied (except as may be indicated in the notes thereto),
the financial position of CITATION as of the dates thereof and its
results of operations, shareholders' equity and consolidated cash flows
for the periods then ended.
(b) There are no liabilities of CITATION of any kind
whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, in each case, that are required by GAAP to
be set forth on a balance sheet of CITATION, other than:
(i) liabilities or obligations disclosed or provided for
in the CITATION Balance Sheet or disclosed in the notes
thereto;
(ii) liabilities or obligations under this Agreement or
incurred in connection with the transactions contemplated
hereby; and
(iii) other liabilities or obligations that individually
or in the aggregate, would not be reasonably likely to have a
CITATION Material Adverse Effect.
SECTION 4.8. CITATION SEC Documents.
(a) CITATION has filed all reports, filings, registration
statements and other documents required to be filed by it with the SEC
since March 31, 1995. No CITATION
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Subsidiary is required to file any form, report, registration statement
or prospectus or other document with the SEC.
(b) As of its filing date, each CITATION SEC Document
complied as to form in all material respects with the applicable
requirements of the Securities Act and/or the Exchange Act, as the case
may be.
(c) No CITATION SEC Document filed pursuant to the Exchange
Act contained, as of its filing date, any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. No CITATION SEC Document,
as amended or supplemented, if applicable, filed pursuant to the
Securities Act contained, as of the date such document or amendment
became effective, any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) CITATION and the CITATION Subsidiaries keep proper
accounting records in which all material assets and liabilities, and
all material transactions, of CITATION and the CITATION Subsidiaries
are recorded in conformity with GAAP applied on a consistent basis. No
part of CITATION's or any CITATION Subsidiary's accounting system or
records, or access thereto, is under the control of a Person who is not
an employee of CITATION or such Subsidiary.
SECTION 4.9. Information to be Supplied.
(a) The information to be supplied by CITATION expressly for
inclusion or incorporation by reference in the Joint Proxy
Statement/Prospectus will (i) in the case of the Registration
Statement, at the time it becomes effective, not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and (ii) in the case of the remainder
of the Joint Proxy Statement/Prospectus, at the time of the mailing
thereof, and at the time of the Special Meeting, not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. The Joint Proxy Statement/Prospectus will comply
(with respect to information relating to CITATION) as to form in all
material respects with the provisions of the Securities Act and the
Exchange Act.
(b) Notwithstanding the foregoing, CITATION makes no
representation or warranty with respect to any statements made or
incorporated by reference in the Joint Proxy Statement/Prospectus based
on and in accordance with information supplied by Cerner.
SECTION 4.10. Absence of Certain Changes. Since March 31, 2000, except
as otherwise expressly contemplated by this Agreement, CITATION has conducted
its business in the ordinary course consistent with past practice and there has
not been (a) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of
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CITATION that, individually or in the aggregate, has had or would be reasonably
likely to have a CITATION Material Adverse Effect, (b) any action, event,
occurrence, development or state of circumstances or facts that, individually or
in the aggregate, has had or would be reasonably likely to have a CITATION
Material Adverse Effect or (c) any incurrence, assumption or guarantee by
CITATION of any material indebtedness for borrowed money other than in the
ordinary course and in amounts and on terms consistent with past practices.
SECTION 4.11. Litigation. Section 4.11 of the CITATION Disclosure
Schedule contains a list of each action, suit, investigation, arbitration or
proceeding pending against, or to the Knowledge of CITATION threatened against,
CITATION or any of its respective assets or properties before any arbitrator or
Governmental Entity. None of such actions, suits, investigations, arbitrations
or proceedings, individually or in the aggregate, is reasonably likely to have a
CITATION Material Adverse Effect. There are no outstanding judgments, decrees,
injunctions, awards or orders against CITATION that are reasonably likely to
have, individually or in the aggregate, a CITATION Material Adverse Effect.
SECTION 4.12. Taxes.
(a) All Tax returns, statements, reports and forms
(collectively, the "CITATION Returns") required to be filed with any
taxing authority by, or with respect to, CITATION and the CITATION
Subsidiaries have been filed in substantial compliance with all
applicable laws.
(b) CITATION has timely paid all Taxes shown as due and
payable on the CITATION Returns that have been so filed, and all other
Taxes not subject to reporting obligations, and as of the time of
filing, the CITATION Returns correctly reflected the facts regarding
the income, business, assets, operations, activities and the status of
CITATION and the CITATION Subsidiaries (other than Taxes that are being
contested in good faith and for which adequate reserves are reflected
on the CITATION Balance Sheet).
(c) CITATION has made provision for all Taxes payable by them
for which no CITATION Return has yet been filed.
(d) The charges, accruals and reserves for Taxes with respect
to CITATION reflected on the CITATION Balance Sheet are materially
adequate under GAAP to cover the Tax liabilities accruing through the
date thereof.
(e) There is no action, suit, proceeding, audit or claim now
proposed or pending against or with respect to CITATION in respect of
any Tax that is reasonably likely to have a CITATION Material Adverse
Effect.
(f) CITATION has not been a member of an affiliated,
consolidated, combined or unitary group other than one of which
CITATION was the common parent.
(g) CITATION does not hold any asset subject to a consent
under Section 341(f) of the Code.
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SECTION 4.13. Employee Benefits.
(a) Section 4.13(a) of the CITATION Disclosure Schedule
contains a correct and complete list identifying each material
"employee benefit plan,", as defined in Section 3(3) of Employee
Retirement Income Security Act of 1974 ("ERISA"), each employment,
severance or similar contract, plan, arrangement or policy and each
other plan or arrangement (written or oral) providing for compensation,
bonuses, profit-sharing, stock option or other stock related rights or
other forms of incentive or deferred compensation, vacation benefits,
insurance coverage (including any self-insured arrangements), health or
medical benefits, disability benefits, workers' compensation,
supplemental unemployment benefits, severance benefits and
post-employment or retirement benefits (including compensation,
pension, health, medical or life insurance benefits) that is
maintained, administered or contributed to by CITATION or any of its
ERISA Affiliates and covers any employee or former employee of CITATION
or any CITATION Subsidiary. Copies of such plans (and, if applicable,
related trust agreements) and all amendments thereto and written
interpretations thereof have been furnished, or will be made available
upon request, to Cerner together with the most recent annual report
(Form 5500 including, if applicable, Schedule B thereto), all summary
plan descriptions and material employee communications prepared in
connection with any such plan. Such plans are referred to collectively
herein as the "CITATION Employee Plans." For purposes of this Section
4.13, "ERISA Affiliate" of any Person means any other Person which,
together with such Person, would be treated as a single employer under
Section 414 of the Code.
(b) No CITATION Employee Plan is now or at any time has been
subject to Part 3, Subtitle B of Title I of ERISA or Title IV of ERISA.
At no time has CITATION or any of its ERISA Affiliates contributed to,
or been required to contribute to, any "multiemployer plan," as defined
in Section 3(37) of ERISA (a "Multiemployer Plan"), or any other plan
subject to Title IV of ERISA (a "Retirement Plan"), and neither
CITATION nor any of its ERISA Affiliates has, or ever has had, any
liability (contingent or otherwise) relating to the withdrawal or
partial withdrawal from a Multiemployer Plan. To the Knowledge of
CITATION, no condition exists and no event has occurred that would be
reasonably likely to constitute grounds for termination of any CITATION
Employee Plan that is a Retirement Plan or, with respect to any
CITATION Employee Plan that is a Multiemployer Plan, presents a
material risk of a complete or partial withdrawal under Title IV of
ERISA and neither CITATION nor any of its ERISA Affiliates has incurred
any liability under Title IV of ERISA arising in connection with the
termination of, or complete or partial withdrawal from, any plan
covered or previously covered by Title IV of ERISA that would be
reasonably likely to have a CITATION Material Adverse Effect. To the
Knowledge of CITATION, nothing has been done or omitted to be done and
no transaction or holding of any asset under or in connection with any
CITATION Employee Plan has occurred that will make CITATION or any
CITATION Subsidiary, or any officer or director of CITATION or any
CITATION Subsidiary, subject to any liability under Title I of ERISA or
liable for any tax pursuant to Section 4975 of the Code (assuming the
taxable period of any such transaction expired as of the date hereof)
that would be reasonably likely to have a CITATION Material Adverse
Effect.
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(c) Each CITATION Employee Plan that is intended to be
qualified under Section 401(a) of the Code now meets, and at all times
since its inception have met, the requirements for such qualification
other than such requirements for which a remedial amendment period has
not expired, and each trust forming a part thereof is now, and at all
times since its inception has been, exempt from tax pursuant to Section
501(a) of the Code. Each such plan has received a determination letter
from the Internal Revenue Service to the effect that such plan is
qualified and its related trust is exempt from federal income taxes.
CITATION has furnished, or will make available upon request, to Cerner
copies of the most recent Internal Revenue Service determination
letters with respect to each such CITATION Employee Plan. Each CITATION
Employee Plan has been maintained and administered in substantial
compliance with its terms (except that in any case in which any
CITATION Employee Plan is currently required to comply with a provision
of ERISA or of the Code, but is not yet to be amended to reflect such
provision, such plan has been maintained and administered in accordance
with the provision) and with the requirements prescribed by any and all
statutes, orders, rules and regulations, including but not limited to
ERISA and the Code, which are applicable to such CITATION Employee
Plan. All material reports, returns and similar documents with respect
to each CITATION Employee Plan required to be filed with any
governmental agency or distributed to any CITATION Employee Plan
participant have been duly timely filed and distributed.
(d) There is no contract, agreement, plan or arrangement
that, as a result of the Merger, would be reasonably likely to obligate
CITATION to make any payment of any amount that would not be deductible
pursuant to the terms of Section 162(m) or Section 280G of the Code.
(e) Except as disclosed in writing to Cerner prior to the
date hereof, there has been no amendment to, written interpretation or
announcement (whether or not written) relating to, or change in
employee participation or coverage under, any CITATION Employee Plan
that would increase materially the expense of maintaining such CITATION
Employee Plan above the level of the expense incurred in respect
thereof for the fiscal year ended March 31, 2000.
(f) No CITATION Employee Plan promises or provides
post-retirement medical, life insurance or other benefits due now or in
the future to current, former or retired employees of CITATION or any
Subsidiary.
SECTION 4.14. Compliance with Laws; Licenses, Permits and
Registrations.
(a) CITATION is not in violation of, nor has CITATION
violated, any applicable provisions of any laws, statutes, ordinances,
regulations, judgments, injunctions, orders or consent decrees, except
for any such violations that, individually or in the aggregate, would
not be reasonably likely to have a CITATION Material Adverse Effect.
(b) CITATION has all permits, licenses, approvals,
authorizations of and registrations with and under all federal, state,
local and foreign laws, and from all
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Governmental Entities required by CITATION to carry on its business as
currently conducted, except where the failure to have any such permits,
licenses, approvals, authorizations or registrations, individually or
in the aggregate, would not be reasonably likely to have a CITATION
Material Adverse Effect.
SECTION 4.15. Title to Properties.
(a) CITATION has good and marketable title to, or valid
leasehold interests in, all its properties and assets except for such
as are no longer used or useful in the conduct of its business or as
have been disposed of in the ordinary course of business and except for
defects in title, easements, restrictive covenants and similar Liens,
encumbrances or impediments that do not materially interfere with the
ability of CITATION to conduct its business as currently conducted. All
such assets and properties, other than assets and properties in which
CITATION has leasehold interests, are free and clear of all Liens,
except for Liens that do not and will not materially interfere with the
ability of CITATION to conduct its business as currently conducted.
(b) CITATION (i) is in substantial compliance with the terms
of all leases to which it is a party and under which it is in
occupancy, and all such leases are in full force and effect and (ii)
enjoys peaceful and undisturbed possession under all such leases.
SECTION 4.16. Intellectual Property.
(a) CITATION owns or has a valid license to use: (i) all
Marks; (ii) all Patents; (iii) all Copyrights; and (iv) all Trade
Secrets; necessary to (x) carry on the business of CITATION as
currently conducted or as proposed to be conducted by the Surviving
Corporation, to (y) make, have made, use, distribute and sell all
products currently sold by CITATION and all products in development, in
each case, reasonably necessary to conduct CITATION's business in the
manner conducted on the date hereof.
(b) There are no outstanding and, to CITATION's Knowledge, no
threatened disputes or disagreements with respect to any agreement to
which CITATION is a party, relating to any of CITATION's Marks,
Patents, Copyrights, or Trade Secrets (collectively, "CITATION
Intellectual Property").
(c) CITATION is the owner of all right, title, and interest
in and to the CITATION Intellectual Property, free and clear of all
Liens and other adverse claims.
(d) All former and current employees of CITATION have
executed written contracts with CITATION that assign to CITATION all
rights to any inventions, improvements, discoveries, or information
relating to the business of CITATION. To CITATION's Knowledge, no
employee of CITATION has entered into any contract that restricts or
limits in any way the scope or type of work in which the employee may
be engaged or requires the employee to transfer, assign, or disclose
information concerning his work to anyone other than CITATION.
(e) All of the Patents are currently in compliance with
formal legal requirements (including payment of filing, examination,
and maintenance fees and proofs
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of working or use), are valid and enforceable, and are not subject to
any maintenance fees or taxes or actions.
(f) CITATION uses reasonable procedures to keep its Trade
Secrets confidential, and CITATION's Trade Secrets have been disclosed
only under written agreements that require the recipient to hold such
Trade Secrets confidential.
(g) No Patent has been or is now involved in any
interference, reissue, reexamination, or opposition proceeding. To
CITATION's Knowledge, there is no potentially interfering patent or
patent application of any third party.
(h) To CITATION's Knowledge, no CITATION Intellectual
Property is infringed or, to CITATION's Knowledge, has been challenged
or threatened in any way. To CITATION's Knowledge, none of the products
manufactured and sold or proposed to be sold, nor any process or
know-how used, by CITATION infringes or is alleged to infringe any
Patent or other proprietary right of any other Person.
(i) Other than the software licenses set forth in the
CITATION Disclosure Schedules, CITATION is not required to make any
payments to any third parties in connection with third party technology
embedded in the CITATION Intellectual Property.
(j) All products made, used, or sold under the Patents have
been marked with the proper patent notice.
SECTION 4.17. Environmental Matters.
(a) With such exceptions as, individually or in the
aggregate, would not be reasonably likely to have a CITATION Material
Adverse Effect, (i) no written notice, notification, demand, request
for information, citation, summons, complaint or order has been
received by, and no investigation, action, claim, suit, proceeding or
review is pending or to the Knowledge of CITATION, threatened by any
Person against, CITATION with respect to any applicable Environmental
Law and (ii) to the Knowledge of CITATION, CITATION is and has been in
compliance with all applicable Environmental Laws.
(b) The term "Environmental Laws" means any federal, state,
local and foreign statutes, laws (including, without limitation, common
law), judicial decisions, regulations, ordinances, rules, judgments,
orders, codes, injunctions, permits or governmental agreements relating
to human health and safety, the environment or to pollutants,
contaminants, wastes, or chemicals, hazardous substances, hazardous
materials or hazardous wastes as any of those terms is regulated or
defined by Environmental Laws.
SECTION 4.18. Finders' Fees; Opinions of Financial Advisor.
(a) Except for A.G. Edward & Sons, Inc. and AristaQuest,
Inc., there is no investment banker, broker, finder or other
intermediary that has been retained by, or is
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authorized to act on behalf of, CITATION or who might be entitled to
any fee or commission from CITATION or Cerner or any of its Affiliates
upon consummation of the transactions contemplated by this Agreement.
(b) CITATION has received the oral opinion of A.G. Edwards &
Sons, Inc., dated as of the date hereof, to the effect that, as of such
date, the Merger Consideration is fair, from a financial point of view,
to the holders of shares of Common Stock (other than Cerner and any
Cerner Subsidiary).
SECTION 4.19. Required Vote and Waiver; Board Approval.
(a) The only vote or waiver of rights of the holders of any
class or series of capital stock of CITATION required by law, rule or
regulation to approve and adopt this Agreement and/or any of the other
transactions contemplated hereby, including the Merger, is the
affirmative vote of the holders of more than two-thirds of the
outstanding shares of Common Stock in favor of the approval and
adoption of this Agreement and approval of the CITATION Merger and the
transactions contemplated hereby.
(b) CITATION's Board of Directors has unanimously (i)
determined and declared that this Agreement and the transactions
contemplated hereby, including the Merger, are advisable and in the
best interests of CITATION and its shareholders, (ii) approved and
adopted this Agreement, the Merger and the other transactions
contemplated hereby and (iii) resolved to recommend to such
shareholders that they vote in favor of adopting and approving this
Agreement and the Merger in accordance with the terms hereof at a
special meeting of the shareholders of CITATION duly held for such
purpose (the "CITATION Shareholders Meeting").
SECTION 4.20. State Takeover Statutes. CITATION has taken all actions
required to be taken by it in order to exempt this Agreement, the Shareholder
Agreement and the transactions contemplated by each of them, including the
exercise of the options granted in the Shareholder Agreement, from the
provisions of Section 351.459 of the Missouri Law, and accordingly, such
Sections do not apply to the Merger or any of such transactions. No other
"control share acquisition," "business combination," "fair price" or other
anti-takeover laws or regulations enacted under state or federal laws in the
United States apply to this Agreement, the Merger or any of the transactions
contemplated hereby.
SECTION 4.21. Tax Treatment. Neither CITATION nor any of its
Affiliates has taken or agreed to take, or will take, any action or is aware of
any fact or circumstance that would prevent or impede the Merger from qualifying
as a 368 Reorganization.
SECTION 4.22. Certain Agreements. Neither CITATION nor any of its
Affiliates (i) are parties to or otherwise bound by any agreement or arrangement
that limits or otherwise restricts CITATION, the Surviving Corporation or any of
their respective Affiliates from engaging or competing in any line of business
or in any locations, which agreement or arrangement is material to the business
of CITATION or would be material to the business of the Surviving Corporation
(assuming the Merger has taken place), in either case taken as a whole and (ii)
except in the ordinary course of business, have amended, modified or terminated
any material
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contract, agreement or arrangement of CITATION or any CITATION Subsidiary or
otherwise waived, released or assigned any material rights, claims or benefits
of CITATION or any CITATION Subsidiary thereunder.
SECTION 4.23. Employment Agreements. There exists (i) no union, guild
or collective bargaining agreement to which CITATION is a party, (ii) no
employment, consulting or severance agreement between CITATION and any Person
(except for consulting agreements that individually, and in the aggregate, are
not material to CITATION), and (iii) no employment, consulting, severance or
indemnification agreement or other agreement or plan to which CITATION is a
party that would be altered or result in any bonus, golden parachute, severance
or other payment or obligation to any Person, or result in any acceleration of
the time of payment or in the provision or vesting of any benefits, as a result
of the execution or performance of this Agreement or as a result of the Merger
or the other transactions contemplated hereby.
SECTION 4.24. Transactions With Directors, Officers and Affiliates.
Except for any of the following matters which would not be required to be
disclosed pursuant to Item 404 of Regulation S-K of the Commission (assuming
CITATION were subject to such Item), since March 31, 1999, there have been no
transactions between CITATION or any of its Subsidiaries and any director,
officer, employee, shareholder or "Affiliate" (as identified pursuant to Section
7.7 hereof) of CITATION, including, without limitation, loans, guarantees or
pledges to, by or for CITATION, from, to, by or for any of such Persons. Except
for any of the following matters which would not be required to be disclosed
pursuant to Item 404 of Regulation S-K of the Commission (assuming that CITATION
was subject to such Item), since March 31, 1999, none of the officers or
directors of CITATION, and no spouse or relative of any of such Persons, has
been a director or officer of, or has had any material direct or indirect
interest in, any Person which during such period has been a supplier, customer
or sales agent of CITATION or has competed with or been engaged in any business
of the kind being conducted by CITATION. Since March 31, 1999, none of the
compensation that would be required to be disclosed pursuant to Item 402 of
Regulation S-K of the Commission (assuming CITATION were subject to such Item)
to all directors, officers, employees, shareholders or "Affiliates" of CITATION
has been increased in a manner that is inconsistent with the past practices of
CITATION.
SECTION 4.25. Material Contracts. Schedule 4.25 of the CITATION
Disclosure Schedule lists all material contracts and agreements to which, as of
the date hereof, CITATION is a party or by which is bound or under which
CITATION has or may acquire any rights, which involve or relate to (i)
obligations of CITATION for borrowed money or other indebtedness where the
amount of such obligations exceeds $75,000 individually, (ii) the lease by
CITATION, as lessee or lessor, of real property for rent of more than $75,000
per annum, (iii) the purchase or sale of goods (other than raw material to be
purchased by CITATION on terms that are customary and consistent with the past
practice of CITATION and in amounts and at prices substantially consistent with
past practices of CITATION) or services with an aggregate minimum purchase price
of more than $75,000 per annum, (iv) rights to manufacture and/or distribute any
product which accounted for more than $75,000 of the consolidated revenues of
CITATION during the fiscal year ended March 31, 2000 or under which CITATION
received or paid license or other fees in excess of $75,000 during any year, (v)
the purchase or sale of assets or properties not in the ordinary course of
business having a purchase price in excess of $75,000, (vi) the right (whether
or not currently exercisable) to use, license (including any "in-license" or
"outlicense"),
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sublicense or otherwise exploit any intellectual property right or other
proprietary asset of CITATION or any other Person which; (vii) any collaboration
or joint venture or similar arrangement; (viii) the restriction on the right or
ability of CITATION (A) to compete with any other Person, (B) to acquire any
product or other asset or any services from any other Person, (C) to solicit,
hire or retain any Person as an employee, consultant or independent contractor,
(D) to develop, sell, supply, distribute, offer, support or service any product
or any technology or other asset to or for any other Person, (E) to perform
services for any other Person, or (F) to transact business or deal in any other
manner with any other Person; (ix) any currency hedging; (x) individual capital
expenditures or commitments in excess of $75,000; or (xi) powers of attorney.
All such contracts and agreements are duly and validly executed by CITATION and
are in full force and effect in all material respects. CITATION has not
materially violated or breached, or committed any material default under, any
contract or agreement, and, to the Knowledge of CITATION, no other Person has
materially violated or breached, or committed any material default under, any
contract or agreement. No event has occurred which, after notice or the passage
of time or both, would constitute a default by CITATION under any contract or
agreement or give any Person the right to (A) declare a default or exercise any
remedy under any contract or agreement, (B) receive or require a rebate,
chargeback, penalty or change in delivery schedule under any contract or
agreement, (C) accelerate the maturity or performance of any contract or
agreement, or (D) cancel, terminate or modify any contract or agreement, in each
case which, together with all other events of the types referred to in clauses
(A), (B), (C) and (D) of this sentence has had or may reasonably be expected to
have a CITATION Material Adverse Effect. All such contracts and agreements will
continue, after the Effective Time, to be binding in all material respects in
accordance with their respective terms until their respective expiration dates.
SECTION 4.26. Certain Business Practices. Neither CITATION nor to the
Knowledge of CITATION any director, officer, agent or employee of CITATION has
(i) used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns or violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended, (assuming for purposes of this
Section 4.26 that CITATION is subject to Section 30A of the Exchange Act) or
(iii) made any other unlawful payment.
SECTION 4.27. Insurance. CITATION has made available to Cerner a summary of
all material insurance policies and all material self-insurance programs and
arrangements relating to the business, assets and operations of CITATION . Each
of such insurance policies is in full force and effect. Since January 1, 1995,
CITATION has not received any notice or other communication regarding any actual
or possible (i) cancellation or invalidation of any material insurance policy,
(ii) refusal of any coverage or rejection of any material claim under any
insurance policy, or (iii) material adjustment in the amount of the premiums
payable with respect to any insurance policy. There is no pending workers'
compensation or other claim under or based upon any insurance policy of CITATION
other than claims incurred in the ordinary course of business.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Merger Sub represents and warrants to CITATION as follows:
SECTION 5.1. Organization. Merger Sub is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware. Merger Sub is
a direct wholly-owned subsidiary of Cerner.
SECTION 5.2. Corporate Authorization. Merger Sub has all requisite
corporate power and authority to enter into this agreement and to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Merger Sub. This Agreement has been
duly executed and delivered by Merger Sub and assuming this Agreement
constitutes a valid and binding agreement of CITATION, constitutes a valid and
binding agreement of Merger Sub, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally or by general equity principles.
SECTION 5.3. Non-Contravention. The execution, delivery and performance by
Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated by this Agreement do not and will not contravene or
conflict with its certificate of incorporation or bylaws.
SECTION 5.4. No Business Activities. Merger Sub has not conducted any
activities other than in connection with the organization of Merger Sub, the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated by this Agreement. Merger Sub has no subsidiaries.
SECTION 5.5. Taxes. Merger Sub has not taken or agreed to take, will not
take, and is not aware of any fact or circumstance that would prevent or impede
the Merger from qualifying as a 368 Reorganization.
ARTICLE VI
COVENANTS OF CITATION
CITATION agrees that:
SECTION 6.1. CITATION Interim Operations. Except as set forth in the
CITATION Disclosure Schedule or as otherwise expressly contemplated or permitted
hereby, or as required by any Governmental Entity of competent jurisdiction,
without the prior consent of Cerner, from the date hereof until the Effective
Time, CITATION shall conduct its business in all material respects in the
ordinary course consistent with past practice and shall use commercially
reasonable efforts to (i) preserve intact its present business organization,
(ii) maintain in effect all material foreign, federal, state and local licenses,
approvals and authorizations, including,
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without limitation, all material licenses and permits that are required for
CITATION to carry on its business and (iii) preserve existing relationships with
its material customers, lenders, suppliers and others having material business
relationships with it. Without limiting the generality of the foregoing, except
as otherwise expressly contemplated or permitted by this Agreement, or as
required by a Governmental Entity of competent jurisdiction, from the date
hereof until the Effective Time, without the prior consent of Cerner, CITATION
shall not:
(a) amend its Articles of Incorporation or By-laws;
(b) split, combine or reclassify any shares of capital stock of
CITATION or declare, set aside or pay any dividend;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or
sale of, any shares of its capital stock of any class or any securities
convertible into or exercisable for, or any rights, warrants or options to
acquire, any such capital stock or any such convertible securities, other
than (A) a number of shares of capital stock equal to that number of shares
underlying options forfeited prior to the Closing by former CITATION
employees, pursuant to the CITATION Employee Plans, or (B) Common Stock
upon the exercise of stock options or warrants in accordance with their
present terms or upon exercise of options issued pursuant to clause (A) of
this Section 6.1(c)(i); or (ii) amend in any respect any term of any
outstanding security of CITATION;
(d) other than in connection with transactions not prohibited by
Section 6.1(e), incur any capital expenditures or any obligations or
liabilities in respect thereof, except for those (i) contemplated by the
capital expenditure budgets for CITATION made available to Cerner, or (ii)
incurred in the ordinary course of business of CITATION and consistent with
past practice;
(e) except in the ordinary course of business, acquire (whether
pursuant to cash merger, stock or asset purchase or otherwise) in one
transaction or series of related transactions (i) any assets (including any
equity interests) having a fair market value in excess of $75,000, or (ii)
all or substantially all of the equity interests of any Person or any
business or division of any Person having a fair market value in excess of
$75,000, but in no event shall the expenditures, commitments, obligations
or liabilities made, incurred or assumed, as the case may be, by CITATION
pursuant to Sections 6.1(d) and 6.1(e) exceed $250,000 in the aggregate;
(f) sell, lease, license, perform services, encumber or otherwise
dispose of any assets, other than (i) sales or licenses of finished goods
or the performance of services in the ordinary course of business
consistent with past practice, (ii) equipment and property no longer used
in the operation of CITATION's business and (iii) assets related to
discontinued operations of CITATION or any CITATION Subsidiary;
(g) (i) incur any indebtedness for borrowed money or guarantee any
such indebtedness, (ii) issue or sell any debt securities or warrants or
rights to acquire any debt securities of CITATION, (iii) make any loans,
advances or capital contributions to or investments in, any other Person,
or (iv) guarantee any debt securities or indebtedness of
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others in any case in an amount in excess of $50,000, except, in each case,
in the ordinary course of business consistent with past practice (which
exception shall include, without limitation, borrowings under CITATION's
existing credit agreements and overnight borrowings);
(h) (i) enter into any agreement or arrangement that limits or
otherwise restricts CITATION or any of its Affiliates or any successor
thereto or that would, after the Effective Time, limit or restrict CITATION
or the Surviving Corporation, or any of their respective Affiliates, from
engaging or competing in any line of business or in any location, or (ii)
enter into, amend, modify or terminate any material contract, agreement or
arrangement of CITATION or otherwise waive, release or assign any material
rights, claims or benefits of CITATION thereunder; provided, however, that
this Section 6.1(h) shall not prevent CITATION from entering into material
contracts with customers, suppliers or distributors, so long as such
contracts are entered into in the ordinary course and consistent with
CITATION's prior practice;
(i) (i) except as required by law or a written agreement existing on
or prior to the date hereof, or as consistent with past practice and
routine raises on anniversary dates, increase the amount of compensation of
any director or executive officer or make any increase in or commitment to
increase any employee benefits, (ii) except as required by law, a written
agreement existing on or prior to the date hereof, or a CITATION severance
policy existing as of the date hereof, grant any severance or termination
pay to any director, officer or employee of CITATION or, (iii) adopt any
additional employee benefit plan or, except in the ordinary course of
business consistent with past practice and containing only normal and
customary terms, or make any contribution to any existing such plan or (iv)
except as may be required by law or a written agreement or employee benefit
plan existing on or prior to the date hereof, or as contemplated by this
Agreement, enter into, amend in any respect, or accelerate the vesting
under any CITATION Employee Plan, employment agreement, option, license
agreement or retirement agreements, or (v) hire any employee with an annual
base salary in excess of $75,000;
(j) change (x) CITATION's methods of accounting in effect at March 31,
2000 except as required by changes in GAAP, as concurred with by its
independent public accountants, or (y) CITATION's fiscal year;
(k) (i) settle, propose to settle or commence, any litigation,
investigation, arbitration, proceeding or other claim that is material to
the business of CITATION, other than the payment, discharge or
satisfaction, in the ordinary course of business consistent with past
practice of liabilities (x) recognized or disclosed in the CITATION
Financial Statements (or the notes thereto) or (y) incurred since the date
of such Financial Statements in the ordinary course of business consistent
with past practice, or (ii) make any material Tax election or enter into
any settlement or compromise of any Tax liability other than in the
ordinary course of business consistent with past practices and containing
only normal and customary terms;
(l) enter into any new material line of business;
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(m) except to the extent required to comply with its obligations
hereunder or required by law, CITATION shall not amend or propose to so
amend its Articles of Incorporation, Bylaws or other governing documents;
or
(n) agree, resolve or commit to do any of the foregoing.
SECTION 6.2. Acquisition Proposals; Board Recommendation.
(a) CITATION agrees that it shall not, nor shall it authorize or
knowingly permit any officer, director, employee, investment banker,
attorney, accountant, agent or other advisor or representative of CITATION,
directly or indirectly, to (i) solicit, initiate or knowingly facilitate or
encourage the submission of any Acquisition Proposal for CITATION, (ii)
participate in any discussions or negotiations regarding, or furnish to any
Person any information with respect to, or take any other action knowingly
to facilitate any inquiries or the making of any proposal that constitutes
an Acquisition Proposal for CITATION, (iii) grant any waiver or release
under any standstill or similar agreement with respect to any class of
CITATION equity securities or (iv) enter into any agreement with respect to
any Acquisition Proposal for CITATION; provided, however, that if, at any
time prior to receipt of the CITATION Shareholder Approval, CITATION's
Board of Directors reasonably determines in good faith, after receipt of
written advice from outside counsel and independent financial advisor of
CITATION, that failing to take such action could reasonably be expected to
be a breach of its fiduciary duties to CITATION's shareholders under
applicable law, CITATION may, in response to an Acquisition Proposal for
CITATION made after the date of this Agreement which was not solicited by
CITATION or its representatives or agents and which did not otherwise
result from a breach of this Section 6.2, and which is reasonably likely to
lead to a Superior Proposal, and subject to compliance with Section 6.2(c)
(x) furnish information with respect to CITATION to any person pursuant to
a customary confidentiality agreement including customary standstill
provisions (as determined by CITATION after consultation with its outside
counsel) and (y) participate in negotiations regarding such Acquisition
Proposal for CITATION.
(b) Neither the Board of Directors of CITATION nor any committee
thereof shall (i) withdraw, or propose publicly to withdraw, in a manner
adverse to Cerner, the approval or recommendation by such Board of
Directors or such committee of the Merger or this Agreement, (ii) subject
to Section 6.2(d), modify, or propose publicly to modify, in a manner
adverse to Cerner, the approval or recommendation by such Board of
Directors or such committee of the Merger or this Agreement, (iii) approve
or recommend, or propose publicly to approve or recommend, any Acquisition
Proposal for CITATION or (iv) approve or recommend, or propose to approve
or recommend, or execute or enter into, any letter of intent, agreement in
principle, merger agreement, acquisition agreement, option agreement or
other similar agreement or propose publicly or agree to do any of the
foregoing related to any Acquisition Proposal for CITATION. Notwithstanding
the foregoing, if at any time prior to receipt of CITATION Shareholder
Approval the Board of Directors of CITATION determines in good faith, after
receipt of written opinions from outside counsel and independent financial
advisor of CITATION, that it has received an Acquisition Proposal for
CITATION that constitutes a Superior
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Proposal which did not result from a breach of this Section 6.2 and that
failure to do one of the following could reasonably be expected to be a
breach of its fiduciary duties to CITATION's shareholders under applicable
Law, the Board of Directors of CITATION may (subject to this and the
following sentences), after paying to Cerner the Termination Fee, (x)
withdraw or modify its approval or recommendation of the Merger and this
Agreement, (y) approve or recommend the Superior Proposal (as defined
below), or (z) or terminate this Agreement (and concurrently with or after
such termination, if it so chooses, cause CITATION to enter into any
Acquisition Agreement with respect to the Superior Proposal), but in each
of the cases set forth in clause (x), (y) or (z), only at a time prior to
receipt of the CITATION Shareholder Approval and only at a time that is
after the tenth business day following Cerner's receipt of written notice
advising Cerner that the Board of Directors of CITATION has received a
Superior Proposal, specifying the material terms and conditions of such
Superior Proposal and identifying the person making such Superior Proposal.
Any such withdrawal or modification of the recommendation of the Merger and
this Agreement and the transactions contemplated hereby shall not change
the approval of the Board of Directors of CITATION for purposes of causing
Section 351.459 of the Missouri Law to be inapplicable to the Merger and
this Agreement, the transactions contemplated hereby and Cerner's entering
into the Shareholder Agreement and acquiring shares of Common Stock upon
exercise of the options granted therein. For all purposes of this
Agreement, a "Superior Proposal" means any bona fide proposal made by a
third party to acquire, directly or indirectly, for consideration
consisting of cash and/or securities, 100% of the CITATION Securities then
outstanding (whether pursuant to a tender or exchange offer, merger,
consolidation, share exchange, or other business combination) or all or
substantially all the assets of CITATION and otherwise on terms which the
Board of Directors of CITATION determines in its good faith judgment (based
on a written opinion of CITATION's financial advisor) to be materially more
favorable to CITATION and its shareholders than the Merger (taking into
account any changes to the financial and other contractual terms of this
Agreement proposed by Cerner in response to such proposal, the Person
making the proposal, any legal or regulatory considerations and all other
relevant financial and strategic considerations, including the timing of
the consummation of such transactions) and for which financing, to the
extent required, is then committed or which, in the good faith judgment of
the Board of Directors of CITATION, is reasonably capable of being obtained
by such third party.
(c) In addition to the obligations of CITATION set forth in paragraphs
(a) and (b) of this Section 6.2, CITATION shall immediately advise Cerner
orally and in writing of any request for information or of any Acquisition
Proposal for CITATION, the material terms and conditions of such request or
Acquisition Proposal for CITATION and the identity of the person making
such request or Acquisition Proposal for CITATION. CITATION will keep
Cerner fully informed of the status and details (including amendments or
proposed amendments) of any such request or Acquisition Proposal for
CITATION. If, after CITATION receives a Superior Proposal, Cerner desires
to continue negotiations with CITATION with respect to the Merger, CITATION
agrees to negotiate in good faith with Cerner.
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(d) Nothing contained in this Section 6.2 shall prohibit CITATION from
taking and disclosing to its shareholders a position contemplated by Rule
14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to CITATION's shareholders if, in the good faith judgment of the
Board of Directors of CITATION, after consultation with outside counsel,
failure so to disclose would be inconsistent with its fiduciary duties to
CITATION's shareholders under applicable Law; provided, however, neither
CITATION nor its Board of Directors nor any committee thereof shall, except
as permitted by Section 6.2(b), withdraw or modify, or propose publicly to
withdraw or modify, its position with respect to the Merger or this
Agreement or approve or recommend, or propose publicly to approve or
recommend, an Acquisition Proposal for CITATION.
SECTION 6.3. Employment Agreements. CITATION agrees to use its reasonable
best efforts to cause each of the employees of CITATION identified in Exhibit F
hereto to execute and deliver to Cerner employment agreements in the form
attached hereto as Exhibit G. CITATION agrees that it will not terminate the
employment of J. Robert Copper, Richard D. Neece, or any of the employees of
CITATION identified on Exhibit F hereto, without the prior written consent of
Cerner.
SECTION 6.4. Shareholder Agreement. CITATION agrees to use its reasonable
best efforts to cause each of the shareholders of CITATION who is a party to the
Shareholders Agreement to comply with the covenants set forth in Article IV of
the Shareholders Agreement.
ARTICLE VII
COVENANTS OF CITATION AND CERNER
The parties hereto agree that:
SECTION 7.1. Reasonable Best Efforts. Subject to the terms and conditions
hereof, each party will use reasonable best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement as promptly as practicable.
SECTION 7.2. Certain Filings; Cooperation in Receipt of Consents; Listing.
As promptly as reasonably practicable after the date hereof, CITATION and Cerner
shall prepare and Cerner shall file with the SEC the Registration Statement, in
which the Joint Proxy Statement/Prospectus will be included as Cerner's
prospectus. Each of CITATION and Cerner shall use all reasonable efforts to have
the Registration Statement declared effective under the Securities Act as
promptly as reasonably practicable after such filing and to keep the
Registration Statement effective as long as is necessary to consummate the
Merger and the transactions contemplated thereby. CITATION shall mail the Joint
Proxy Statement/Prospectus to its shareholders as promptly as reasonably
practicable after the Registration Statement is declared effective under the
Securities Act and, if necessary, after the Joint Proxy Statement/Prospectus
shall have been so mailed, promptly circulate amended, supplemental or
supplemented proxy material, and, if required in connection therewith, resolicit
proxies. On or before the effectiveness of the Registration Statement, CITATION
shall file the Joint Proxy/Prospectus
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with the SEC. Cerner and CITATION shall take any action (other than qualifying
to do business in any jurisdiction in which it is not now so qualified or to
file a general consent to service of process) required to be taken under any
applicable state securities or blue sky laws in connection with the issuance of
shares of Cerner Common Stock in the Merger.
(a) No amendment or supplement to the Joint Proxy Statement/Prospectus
will be made by CITATION or Cerner without the approval of the other party,
which will not be unreasonably withheld or delayed. Each party will advise
the other party, promptly after it receives notice thereof, of (i) the time
when the Registration Statement has become effective or any supplement or
amendment has been filed, (ii) the issuance of any stop order, (iii) the
suspension of the qualification of the shares of Cerner Common Stock
issuable in connection with the Merger for offering or sale in any
jurisdiction, or (iv) any request by the SEC for amendment of the Joint
Proxy Statement/Prospectus or comments thereon and responses thereto or
requests by the SEC for additional information, in each case, whether
orally or in writing. If at any time prior to the Effective Time, CITATION
or Cerner discovers any information relating to either party, or any of
their respective Affiliates, officers or directors, that should be set
forth in an amendment or supplement to the Joint Proxy
Statement/Prospectus, so that such document would not include any
misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the party that discovers such
information shall promptly notify the other party hereto and an appropriate
amendment or supplement describing such information shall be promptly filed
with respect thereto, and with respect to the Registration Statement, as
the case may be, with the SEC and, to the extent required by law or
regulation, disseminated to the shareholders of CITATION.
(b) CITATION and Cerner shall cooperate with one another in (i)
determining whether any other action by or in respect of, or filing with,
any Governmental Entity is required, or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts,
in connection with the consummation of the transactions contemplated
hereby, (ii) seeking any such other actions, consents, approvals or waivers
or making any such filings, furnishing information required in connection
therewith and seeking promptly to obtain any such actions, consents,
approvals or waivers, (iii) setting a mutually acceptable date for the
CITATION Shareholders Meeting, and (iv) taking all lawful action to call,
give notice of, convene and hold the CITATION Shareholders Meeting for the
purpose of obtaining the requisite votes to approve and adopt this
Agreement, the Merger and the other matters contemplated by this Agreement.
The Board of Directors of CITATION shall, subject to its fiduciary duties
under applicable law, declare the advisability of and recommend adoption
and approval of this Agreement, the Merger and the other matters
contemplated by this Agreement by the shareholders of CITATION, and shall
not, subject to its fiduciary duties under applicable law, withdraw, modify
or materially qualify in any manner adverse to Cerner to such
recommendation or take any action or make any statement in connection with
the CITATION Shareholder Meeting materially inconsistent with such
recommendation (any such withdrawal, modification, qualification or
statement (whether or not required), an "Adverse Change in the CITATION
Recommendation").
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(c) Each party shall afford the other party reasonable opportunities
to review any communication given by it to, and consult with each other in
advance of any meeting or conference with, any Governmental Entity or, in
connection with any proceeding by a private party, with any other Person,
and to the extent permitted by the applicable Governmental Entity or other
Person, give the other party the opportunity to attend and participate in
such meetings and conferences, in each case in connection with the
transactions contemplated hereby.
(d) Cerner and CITATION agree to use their respective reasonable best
efforts to cause the shares of Cerner Common Stock to be issued to CITATION
Shareholders upon conversion of shares of Common Stock in accordance with
this Agreement, the Articles of Merger and the Certificate of Merger to be
approved for listing upon issuance on the Nasdaq National Market.
SECTION 7.3. Public Announcements. Cerner and CITATION shall use their
reasonable best efforts to develop a joint communications plan and each party
shall use its reasonable best efforts (i) to ensure that all press releases and
other public statements with respect to the transactions contemplated hereby
shall be consistent with such joint communications plan, and (ii) unless
otherwise required by applicable law or by obligations pursuant to any rules of
the Nasdaq National Market, to consult with each other before issuing any press
release or, to the extent practical, otherwise making any public statement with
respect to this Agreement or the transactions contemplated hereby.
SECTION 7.4. Access to Information; Notification of Certain Matters.
(a) From the date hereof until the Effective Time and subject to
applicable law, CITATION shall (i) give to Cerner, its counsel, financial
advisors, auditors and other authorized representatives reasonable access
during normal business hours to the offices, properties, books, records,
contracts, commitments, officers and employees and all other information
concerning it and its business, properties, assets, condition (financial or
otherwise) or prospects of such party, (ii) consistent with its legal
obligations, furnish or make available to Cerner, its counsel, financial
advisors, auditors and other authorized representatives such financial and
operating data and other information as such Persons may reasonably request
and (iii) instruct its employees, counsel, financial advisors, auditors and
other authorized representatives to cooperate with the reasonable requests
of Cerner in its investigation. Any investigation pursuant to this Section
7.4 shall be conducted in such manner as not to interfere unreasonably with
the conduct of the business of the other party. Unless otherwise required
by law, each of Cerner and CITATION will hold, and will cause its
respective officers, employees, counsel, financial advisors, auditors and
other authorized representatives to hold, any nonpublic information
obtained in any such investigation in confidence in accordance with the
Confidentiality Agreement. No information or knowledge obtained in any
investigation pursuant to this Section 7.4 shall affect or be deemed to
modify any representation or warranty made by any party hereunder.
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(b) Each party hereto shall give prompt notice to each other party
hereto of:
(i) the receipt by such party or any of such party's Subsidiaries
of any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(ii) the receipt by such party or any of such party's
Subsidiaries of any notice or other communication from any
Governmental Entity in connection with any of the transactions
contemplated by this Agreement;
(iii) such party's obtaining Knowledge of any actions, suits,
claims, investigations or proceedings commenced, threatened against,
relating to or involving or otherwise affecting either CITATION or
Cerner, as the case may be, or any Subsidiary of either of them which
relate to the consummation of the transactions contemplated by this
Agreement; or
(iv) such party's obtaining Knowledge of the occurrence, or
failure to occur, of any event which occurrence or failure to occur
will be likely to cause (A) any representation or warranty contained
in this Agreement to be untrue or inaccurate in any material respect,
or (B) any material failure of any party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by
it under this Agreement; provided, however, that no such notification
shall limit or otherwise affect the representations, warranties,
obligations or remedies of the parties to the conditions to the
obligations of the parties hereunder.
SECTION 7.5. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of CITATION or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of CITATION or Merger Sub, any other actions and things to vest,
perfect or confirm of record or otherwise in the Surviving Corporation any and
all right, title and interest in, to and under any of the rights, properties or
assets of CITATION or Merger Sub acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with the Merger.
SECTION 7.6. Tax Treatment.
(a) Prior to the Effective Time, each party shall cooperate with the
other party and shall use its reasonable best efforts to cause the Merger
to qualify as a 368 Reorganization, and will not take any action reasonably
likely to cause the Merger not so to qualify. The Surviving Corporation
shall not take any action after the Effective Time that would cause the
Merger not to qualify a 368 Reorganization.
(b) Each party shall cooperate with the other party and shall use its
reasonable best efforts to obtain the opinions referred to in Sections
8.2(b) and 8.3(b) and in connection therewith, each of Cerner and CITATION
shall deliver to such counsel customary representation letters
substantially in the forms attached hereto as Exhibit C
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and Exhibit D (the "Cerner Representation Letter" and the "CITATION
Representation Letter", respectively) or otherwise in form and substance
reasonably satisfactory to such counsel.
SECTION 7.7. Affiliates. Not less than 45 days prior to the Effective Time,
CITATION shall deliver to Cerner a letter identifying all persons who, in the
reasonable judgment of CITATION, may be deemed at the time this Agreement is
submitted for adoption by the shareholders of CITATION, "affiliates" of CITATION
for purposes of Rule 145 under the Securities Act and such list shall be updated
as necessary to reflect changes from the date hereof. CITATION shall use
reasonable best efforts to cause each Person identified on such list to deliver
to Cerner not less than 10 days prior to the Effective Time, a written agreement
substantially in the form attached as Exhibit E hereto (an "Affiliate
Agreement"), which Affiliate Agreements shall require compliance with Rule 145
under the Securities Act.
SECTION 7.8. Benefit Matters. Cerner and CITATION will work together to
transition CITATION employees to Cerner employee benefit plans, as appropriate.
SECTION 7.9. Antitrust Matters. The parties hereto promptly will complete
all documents required to be filed with the Federal Trade Commission and the
Department of Justice in order to permit the Merger and the transactions
contemplated by this Agreement and, together with the Persons who are required
to join in such filings, will file the same with the appropriate Governmental
Entities. The parties hereto promptly will furnish all materials thereafter
required by any of the Governmental Entities having jurisdiction over such
filings and will take all reasonable actions and file and use all reasonable
efforts to have declared effective or approved all documents and notifications
with any such Governmental Entities, as may be required under the HSR Act for
the consummation of the Merger.
SECTION 7.10. Exemption From Liability Under Section 16(b).
(a) Provided that CITATION delivers to Cerner the Section 16
Information with respect to CITATION prior to the Effective Time, the Board
of Directors of Cerner, or a committee of Non-Employee Directors thereof
(as such term is defined for purposes of Rule 16b-3(d) under the Exchange
Act), shall adopt a resolution in advance of the Effective Time providing
that the receipt by the CITATION Insiders of Cerner Common Stock in
exchange for shares of Common Stock, and of options to purchase Cerner
Common Stock upon assumption and conversion by the Surviving Corporation of
options to purchase Common Stock, in each case pursuant to the transactions
contemplated hereby and to the extent such securities are listed in the
Section 16 Information, are intended to be exempt from liability pursuant
to Rule 16b-3 under the Exchange Act.
(b) "Section 16 Information" shall mean information accurate in all
respects regarding the CITATION Insiders, the number of shares of Common
Stock, or other CITATION equity securities, deemed to be beneficially owned
by each such CITATION Insider and expected to be exchanged for Cerner
Common Stock in connection with the Merger.
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(c) "CITATION Insiders" shall mean those officers and directors of
CITATION who are subject to the reporting requirements of Section 16(a) of
the Exchange Act who are listed in the Section 16 Information.
SECTION 7.11. Indemnification and Insurance.
(a) The Certificate of Incorporation and By-Laws of Merger Sub shall
contain provisions with respect to indemnification and exculpation similar
to those set forth in the Articles of Incorporation and By-Laws of
CITATION, which provisions Cerner shall not and shall cause Merger Sub not
to amend, repeal or otherwise modify for a period of five (5) years from
the Effective Time in any manner that would materially and adversely affect
the rights thereunder of individuals who at the Effective Time were
directors, officers, employees or agents of CITATION, unless such
amendment, repeal or other modification is required by applicable law.
(b) From and after the Effective Time, Cerner and Merger Sub agree
that they will indemnify and hold harmless each present director and
officer of CITATION (when acting in such capacity) determined as of the
Effective Time (the "Indemnified Parties"), against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with
any claim, action, suit, proceeding or investigation whether civil,
criminal, administrative or investigative, arising out of or pertaining to
matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the
fullest extent that CITATION would have been permitted under Missouri Law
and its Articles of Incorporation or By-Laws in effect on the date of this
Agreement to indemnify such person (and Cerner and Merger Sub shall also
advance expenses as incurred to the fullest extent permitted under
applicable Missouri Law and the Articles of Incorporation and the By-Laws
of CITATION, provided that the person to whom expenses are advanced
provides an undertaking to repay such advances if it is ultimately
determined that such person is not entitled to indemnification).
(c) Any Indemnified Party wishing to claim indemnification under
paragraph (b) of this Section 7.11, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Cerner
thereof in writing, but the failure to so notify shall not relieve Cerner
of any liability it may have to such Indemnified Party if such failure does
not materially prejudice Cerner. In the event of any such claim, action,
suit, proceeding or investigation (whether arising before or after the
Effective Time), (i) Cerner or Merger Sub shall have the right to assume
the defense thereof, and Cerner shall not be liable to such Indemnified
Parties for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Parties in connection with the
defense thereof, except that if Cerner or Merger Sub elects not to assume
such defense, or if there are any issues which raise material conflicts of
interest between Cerner or Merger Sub and the Indemnified Parties, the
Indemnified Parties may retain counsel reasonably satisfactory to Cerner,
and Cerner or Merger Sub shall pay all reasonable fees and expenses of such
counsel for the Indemnified Parties; provided, however, that Cerner shall
be obligated pursuant to this paragraph (c) to pay for only one firm or
counsel for all Indemnified Parties and, as applicable, for local counsel,
and provided, however, the
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costs of more than one firm or counsel shall be paid if the Indemnified
Parties cannot be represented by one firm or counsel because of a conflict
of interest, (ii) the Indemnified Parties will cooperate in the defense of
any such matter, and (iii) Cerner shall not be liable for any settlement
effected without its prior written consent (which consent shall not be
unreasonably withheld or delayed).
(d) For a period of five (5) years after the Effective Time and to the
extent available, Cerner or Merger Sub shall maintain in effect policies of
directors' and officers' liability insurance covering those persons who are
currently covered by CITATION's directors' and officers' liability
insurance policy on terms (including the amounts of coverage and the
amounts of deductibles, if any) that are no less favorable to them in any
material respect than the terms now applicable to them under CITATION's
current insurance policies; provided that Cerner and Merger Sub shall not
be required to pay an annual premium for such insurance in excess of 150%
of the last annual premium paid prior to the date hereof, but in such case
shall purchase as much coverage as possible for such amount.
(e) If Cerner or Merger Sub or any of their successors or assigns (i)
shall consolidate with or merge into any other corporation or entity and
shall not be the continuing or surviving corporation or entity in such
consolidation or merger or (ii) shall transfer all or substantially all of
its properties and assets to any individual, corporation or other entity,
then and in each case, proper provisions shall be made so that the
successors and assigns of Cerner or Merger Sub, as the case may be, shall
assume all of the obligations set forth in this Section 7.11; provided,
that the failure to make such provisions shall not affect the validity of
any such consolidation, merger or transfer.
(f) The provisions of this Section 7.11 are intended to be for the
benefit of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and representatives.
(g) Notwithstanding the foregoing, neither Cerner nor Merger Sub shall
have any obligation to indemnify or exculpate any officer or director or
CITATION from liability to Cerner, Merger Sub or Cerner's stockholders for
any acts related to or arising out of the Merger, this Agreement or the
transactions contemplated hereby if and to the extent such person's conduct
was finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct.
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.1. Conditions to the Obligations of Each Party. The respective
obligations of CITATION, Cerner and Merger Sub to consummate the Merger are
subject to the satisfaction or waiver on or prior to the Closing Date of the
following conditions:
(a) Shareholder Approval. The CITATION Shareholder Approval shall have
been obtained;
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(b) Securities Laws. (i) The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued by the SEC and no proceedings for that purpose shall have been
initiated or threatened by the SEC and not concluded or withdrawn, (ii) all
state securities or blue sky authorizations necessary to carry out the
transactions contemplated hereby shall have been obtained and be in effect,
and (iii) the Nasdaq National Market shall have approved the listing of the
Cerner Common Stock portion of the Merger Consideration, subject to notice
of issuance;
(c) Antitrust. Any applicable waiting period under the HSR Act
contemplated by Section 7.9 hereof shall have expired or been earlier
terminated;
(d) Other Regulatory Approvals. Other than the filings provided for by
Article II, all authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations of waiting periods imposed by,
any Governmental Entity the failure of which to obtain would have a
CITATION Material Adverse Effect, a Cerner Material Adverse Effect or a
Surviving Corporation Material Adverse Effect, shall have been filed,
occurred or been obtained; and
(e) No Injunctions or Restraints; Illegality. No Laws shall have been
adopted or promulgated, and no temporary restraining order, preliminary or
permanent injunction or other order issued by a court or other Governmental
Entity of competent jurisdiction shall be in effect, (i) having the effect
of making the Merger illegal or otherwise prohibiting, enjoining or
restraining consummation of the Merger or (ii) which otherwise would
reasonably be expected to have a Surviving Corporation Material Adverse
Effect after giving effect to the Merger; provided, however, that the
provisions of this Section 8.1(e) shall not be available to any party whose
failure to fulfill its obligations pursuant to Sections 7.1 and 7.2 shall
have been the cause of, or shall have resulted in, such order or
injunction.
SECTION 8.2. Conditions to the Obligations of Cerner and Merger Sub. The
obligations of Cerner and Merger Sub to consummate the Merger are subject to the
satisfaction, or waiver by Cerner and Merger Sub, on or prior to the Closing
Date, of the following further conditions:
(a) Representations and Covenants. (i) CITATION shall have performed
in all material respects all of its obligations hereunder required to be
performed by it at or prior to the time of the filing of the Articles of
Merger and the Certificate of Merger; (ii) the representations and
warranties of CITATION in this Agreement that are qualified as to
materiality, CITATION Material Adverse Effect or Surviving Corporation
Material Adverse Effect shall be accurate, and any such representations and
warranties that are not so qualified shall be accurate, in all material
respects, as of the date of this Agreement and as of the Effective Time
(except for representations and warranties that address matters only as of
a specific date, in which case such representations and warranties
qualified as to materiality, CITATION Material Adverse Effect or Surviving
Corporation Material Adverse Effect shall be true and correct, and those
not so qualified shall be true and correct in all material respects, on and
as of such earlier date); and (iii) Cerner shall
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have received a certificate signed by the Chief Executive Officer or Chief
Financial Officer of CITATION to the foregoing effect;
(b) Tax Opinion. Cerner shall have received an opinion of Stinson, Mag
& Fizzell, P.C. in form and substance reasonably satisfactory to Cerner, on
the basis of certain facts, representations and assumptions set forth in
such opinion, dated as of the date of the filing of the Articles of Merger
and the Certificate of Merger, to the effect that the Merger will qualify
for federal income tax purposes as a 368 Reorganization and that each of
Cerner, CITATION and Merger Sub will be a party to the reorganization
within the meaning of Section 368(b) of the Code. In rendering such
opinion, such counsel shall be entitled to rely upon representations of
officers of Cerner, CITATION and Merger Sub;
(c) Employment Agreements. J. Robert Copper and Richard D. Neece shall
have executed and delivered to Cerner employment agreements in a form
mutually agreeable to such parties;
(d) Affiliate Agreements. Cerner shall have received from each Person
named in the letter referred to in Section 7.7 an executed copy of an
Affiliate Agreement;
(e) Opinion of Counsel. Cerner shall have received an opinion of
Thompson Coburn LLP in substantially the form attached hereto as Exhibit H;
and
(f) No Material Adverse Change. There shall have been no material
adverse change in the financial condition, results of operations or cash
flows or assets, liabilities, business or prospects of CITATION from March
31, 2000 through the Closing Date.
SECTION 8.3. Conditions to the Obligations of CITATION. The obligations of
CITATION to consummate the Merger are subject to the satisfaction, or waiver by
CITATION, on or prior to the Closing Date, of the following further conditions:
(a) Representations and Covenants. (i) Cerner shall have performed in
all material respects all of its obligations hereunder required to be
performed by it at or prior to the time of the filing of the Articles of
Merger and the Certificate of Merger; (ii) the representations and
warranties of Cerner and Merger Sub in this Agreement that are qualified as
to materiality, Cerner Material Adverse Effect or Surviving Corporation
Material Adverse Effect shall be accurate, and any such representations and
warranties that are not so qualified shall be accurate, in all material
respects, as of the date of this Agreement and as of the Effective Time
(except for representations and warranties which address matters only as of
a specific date, in which case such representations and warranties
qualified as to materiality, Cerner Material Adverse Effect or Surviving
Corporation Material Adverse Effect shall be true and correct, and those
not so qualified shall be true and correct in all material respects, on and
as of such earlier date); and (iii) CITATION shall have received a
certificate signed by the Chief Executive Officer or Chief Financial
Officer of Cerner and Merger Sub to the foregoing effect;
(b) Tax Opinion. CITATION shall have received an opinion of Thompson
Coburn LLP in form and substance reasonably satisfactory to CITATION, on
the basis of
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certain facts, representations and assumptions set forth in such opinion,
dated as of the date of the filing of the Articles of Merger and the
Certificate of Merger, to the effect that the Merger will qualify for
federal income tax purposes as a 368 Reorganization and that each of
Cerner, Merger Sub and CITATION will be a party to the reorganization
within the meaning of Section 368(b) of the Code. In rendering such
opinion, such counsel shall be entitled to rely upon representations of
officers of Cerner, Merger Sub and CITATION;
(c) Employment Agreements. Cerner shall have executed and delivered
employment agreements to J. Robert Copper and Richard D. Neece, in a form
mutually agreeable to such parties;
(d) Opinion of Counsel. CITATION shall have received an opinion of
Stinson, Mag & Fizzell and/or the General Counsel of Cerner, in
substantially the form attached hereto as Exhibit I; and
(e) No Material Adverse Change. There shall have been no material
adverse change in the financial condition, results of operations or cash
flows or assets, liabilities, business or prospects of Cerner from the date
of the Cerner Balance Sheet through the Closing Date.
ARTICLE IX
TERMINATION
SECTION 9.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time by written notice by the terminating party to the
other party (except if such termination is pursuant to Section 9.1(a)),
notwithstanding approval thereof by the shareholders of CITATION:
(a) by mutual written agreement of Cerner and CITATION;
(b) by either CITATION or Cerner, if
(i) the Merger shall not have been consummated by December 30,
2000 (the "Expiration Date") unless the holders of Common Stock do not
approve this Agreement by the Expiration Date, in which case this
Agreement is terminable under Section 9.1(b)(iii); provided, however,
that the right to terminate this Agreement under this Section
9.1(b)(i) shall not be available to any party whose breach of any
provision of this Agreement has resulted in the failure of the Merger
to occur on or before the Expiration Date;
(ii) there shall be any Law that makes consummation of the Merger
illegal or otherwise prohibited or any judgment, injunction, order or
decree of any Governmental Entity having competent jurisdiction
enjoining Cerner, CITATION or the Merger Sub from consummating the
Merger is entered and such judgment, injunction, judgment or order
shall have become final and nonappealable and, prior to such
termination, the parties shall have used reasonable best efforts to
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resist, resolve or lift, as applicable, such law, regulation,
judgment, injunction, order or decree; or
(iii) the holders of Common Stock do not approve this Agreement
on or before the Expiration Date.
(c) by Cerner, (i) if there shall have occurred an Adverse Change in
the CITATION Recommendation (or the Board of Directors of CITATION have
resolved to take such action); (ii) if there shall have occurred a willful
and material breach of Section 6.2 by CITATION or any of its officers,
directors, employees, advisors or agents; (iii) if a breach of any
representation, warranty, covenant or agreement on the part of CITATION set
forth in this Agreement shall have occurred that would cause the condition
set forth in Section 8.2(a) not to be satisfied, and such condition shall
be incapable of being satisfied by the Expiration Date; (iv) CITATION shall
have failed to include in the Joint Proxy Statement/Prospectus the
recommendation of the Board of Directors of CITATION in favor of the
adoption and approval of this Agreement and the approval of the Merger; (v)
the Board of Directors of CITATION shall have approved, endorsed or
recommended any Acquisition Proposal of CITATION; (vi) a tender or exchange
offer relating to securities of CITATION shall have been commenced and
CITATION shall not have sent to its security holders, within ten business
days after the commencement of such tender or exchange offer, a statement
disclosing that CITATION recommends rejection of such tender or exchange
offer; or (vii) CITATION or CITATION's Board of Directors or any committee
thereof shall have resolved to do or permit any of the foregoing;
(d) by CITATION, if a breach of any representation, warranty, covenant
or agreement on the part of Cerner set forth in this Agreement shall have
occurred that would cause the condition set forth in Section 8.3(a) not to
be satisfied, and such condition is incapable of being satisfied by the
Expiration Date;
(e) by CITATION, pursuant to the provisions of Section 6.2(b); or
(f) automatically if the transactions contemplated herein are enjoined
by a court of competent jurisdiction for a period extending beyond 90 days.
SECTION 9.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 9.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of Cerner or CITATION or their
respective officers or directors except with respect to the provisions of
Sections 9.2, 10.1, 10.4, 10.5, and 10.10 of this Agreement which provisions
shall remain in full force and effect and survive any termination of this
Agreement, and except that, notwithstanding anything to the contrary contained
in this Agreement, neither Cerner nor CITATION shall be relieved or released
from any liabilities or damages arising out of its willful material breach of
this Agreement. The Confidentiality Agreement shall survive termination of this
Agreement.
SECTION 9.3. Termination Fees; Other Fees.
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(a) CITATION agrees to pay to Cerner upon demand a termination fee of
Six Hundred Thousand Dollars ($600,000) (the "Termination Fee") (i) if this
Agreement is terminated pursuant to Section 9.1(b)(iii) and the closing
sale price per share of Cerner Common Stock, as reported by Nasdaq, is
greater than $24.00 on at least 10 of the last 20 trading days immediately
preceding the date for the CITATION Shareholder Meeting as set forth in the
definitive Joint Proxy Statement/Prospectus, or (ii) pursuant to Section
6.2(b). In the event of a termination of this Agreement pursuant to Section
6.2(b) or 9.1(b)(iii) of this Agreement, the payments provided under this
Section 9.3(a) shall be the sole and exclusive remedy available to Cerner.
(b) Except as set forth in this Section 9.3, all Expenses incurred in
connection herewith and the transactions contemplated hereby shall be paid
by the party incurring such Expenses, whether or not the Merger is
consummated. All CITATION Expenses will be recorded prior to the Closing
Date. As used in this Agreement, "Expenses" includes all out-of-pocket
expenses (including, without limitation, all fees and expenses of counsel,
accountants, investment bankers, experts and consultants to a party hereto
and its affiliates) incurred by a party or on its behalf in connection with
or related to the authorization, preparation, negotiation, execution and
performance of this Agreement and the transactions contemplated hereby,
including the preparation, printing, filing and mailing of the Joint Proxy
Statement/Prospectus and the solicitation of shareholder approval.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, in each case, if on a Business Day, and otherwise on the next Business
Day, (b) on the first service, (c) on the fifth Business Day following the date
of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid, or (d) the second Business Day if delivered by
nationally recognized overnight courier. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
if to the Surviving Corporation, to the address set forth below for
Cerner and CITATION, including copies;
if to Cerner and/or Merger Sub, to:
Cerner Corporation
2800 Rockcreek Parkway
Kansas City, Missouri 64117
Attention: President
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<PAGE> 45
with copies to:
Cerner Corporation
2800 Rockcreek Parkway
Kansas City, Missouri 64117
Attention: General Counsel
Stinson, Mag & Fizzell, P.C.
1201 Walnut Street, Suite 2800
Kansas City, MO 64106
Attention: Craig L. Evans
if to CITATION to:
CITATION Computer Systems, Inc.
424 South Woods Mill Road
Suite 200
Chesterfield, Missouri 63017
Attention: President
with a copy to:
Thompson Coburn LLP
One Firstar Plaza
St. Louis, Missouri 63101
Attention: Thomas A. Litz
SECTION 10.2. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived prior to
the Effective Time if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by Cerner and CITATION or in the
case of a waiver, by the party against whom the waiver is to be effective;
provided that after the CITATION Shareholder Approval, no such amendment or
waiver shall, without the further approval of such shareholders, be made
that would require such approval under any applicable law, rule or
regulation.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 10.3. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the
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<PAGE> 46
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
SECTION 10.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
without regard to any principles of Delaware conflicts or choice of law.
SECTION 10.5. Counterparts; Effectiveness. 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 counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto.
SECTION 10.6. No Third Party Beneficiaries. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 10.7. Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
SECTION 10.8. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
SECTION 10.9. Entire Agreement. This Agreement (together with the exhibits
and schedules hereto) constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof.
SECTION 10.10. Severability. If any term, provision, covenant or
restriction set forth in this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not deemed by a party (acting reasonably and in good
faith) to be materially adverse to that party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in order that the
transactions contemplated hereby may be consummated as originally contemplated
to the fullest extent possible.
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<PAGE> 47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CERNER CORPORATION
By: /s/ Marc G. Naughton
-------------------------------------------------
Marc G. Naughton, Vice President and Chief
Financial Officer
CITATION COMPUTER SYSTEMS, INC.
By: /s/ J. Robert Copper
-------------------------------------------------
J. Robert Copper, Chairman and Chief
Executive Officer
CERNER PERFORMANCE LOGISTICS, INC.
By: /s/ Marc G. Naughton
-------------------------------------------------
Marc G. Naughton, Vice President and Chief
Financial Officer
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APPENDIX I
DEFINITIONS
"Acquisition Proposal for CITATION" means any offer or proposal for a
merger, consolidation, share exchange, business combination, reorganization,
recapitalization, issuance of securities, liquidation, dissolution, tender offer
or exchange offer or other similar transaction or series of transactions
involving, or any purchase of 10% or more of the assets, or directly or
indirectly acquires beneficial ownership of securities representing, or
exchangeable for or convertible into, more than 10% of the outstanding
securities of any class of voting securities of CITATION or in which CITATION
issues securities representing 10% of the outstanding securities of any class of
voting securities of CITATION, other than the transactions contemplated by this
Agreement.
"Affiliate" means, with respect to any Person, any other Person, directly
or indirectly, controlling, controlled by, or under common control with, such
Person. For purposes of this definition, the term "control" (including the
correlative terms "controlling", "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, or partnership or other ownership interests, by
contract, or otherwise.
"Average Cerner Stock Price" means the average of the closing sales price
per share of Cerner Common Stock as reported by NASDAQ on each of the 20
consecutive trading days immediately preceding the third trading day prior to
the date of the determination.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized by law to close in the State of Missouri.
"Cerner Balance Sheet" means Cerner's audited balance sheet dated January
1, 2000.
"Cerner Common Stock" means the common stock of Cerner, par value $.01 per
share, including the associated rights (the "Cerner Stock Purchase Rights") to
purchase shares of Series A Preferred Stock of Cerner pursuant to the Amended
and Restated Rights Agreement, dated as of March 12, 1999, between Cerner and
UMB Bank, n.a., as Rights Agent. All references in this Agreement to Cerner
Common Stock shall be deemed to include the Cerner Stock Purchase Rights.
"Cerner Disclosure Schedule" means the schedule delivered to CITATION by
Cerner pursuant to Article III hereof containing exceptions to the
representations and warranties of Cerner set forth in such Article III.
"Cerner SEC Documents" means (i) Cerner's annual report on Form 10-K for
its fiscal year ended January 1, 2000 (the "Cerner 10-K"), (ii) Cerner's
quarterly report on Form 10-Q (the "Cerner 10-Q") for its fiscal quarter ended
April 1, 2000, (iii) Cerner's proxy or
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information statements relating to meetings of, or actions taken without a
meeting by, Cerner's stockholders held since May 28, 1999, and (iv) all other
reports, filings, registration statements and other documents filed by it with
the SEC since January 1, 1999.
"CITATION Balance Sheet" means CITATION's draft audited balance sheet
relating to its fiscal year ended on March 31, 2000.
"CITATION Disclosure Schedule" means the schedule delivered to Cerner by
CITATION pursuant to Article IV hereof containing exceptions to the
representations and warranties of CITATION set forth in such Article IV.
"CITATION Preferred Stock" means the preferred stock, par value $.01 per
share, of CITATION.
"CITATION SEC Documents" means (i) CITATION's annual report on Form 10-K
for its fiscal year ended March 31, 1999 (the "CITATION 10-K"), (ii) CITATION's
proxy or information statements relating to meetings of, or actions taken
without a meeting by, CITATION's shareholders held since August 19, 1999, and
(iv) all other reports, filings, registration statements and other documents
filed by it with the SEC since March 31, 1999.
"Closing" means the closing of the Merger contemplated in this Agreement.
"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $.01 per share, of
CITATION.
"Confidentiality Agreement" means the Confidentiality Agreement by and
between Cerner and CITATION attached hereto as Exhibit J.
"Copyrights" mean all copyrightable works in both published works and
unpublished works registered and unregistered, including, without limitation,
any software.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Exchange Agent" means UMB Bank, n.a., or any successor exchange agent
agreed upon by Cerner and CITATION.
"Exchange Ratio" means 0.1695, such number may be adjusted pursuant to
Section 2.1(g).
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"Governmental Entity" means any federal, state or local governmental
authority, any transgovernmental authority or any court, tribunal,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign.
"Joint Proxy Statement/Prospectus" means the joint proxy
statement/prospectus included in the Registration Statement relating to the
CITATION Shareholder Meeting, together with any amendments or supplements
thereto.
"Knowledge" means, with respect to the matter in question, if any of (i) in
the case of Cerner or Merger Sub, Zane Burke and Randy Sims, and (ii) in the
case of CITATION, the executive officers and directors of CITATION, in each case
after good faith due inquiry.
"Law" means any federal, state, local, municipal, foreign, international,
multinational, or other judicial or administrative order, judgment, decree,
constitution, statute, rule, regulation, treaty, ordinance or principle of
common law.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"Marks" mean all fictional business names, trading names, registered and
unregistered trademarks, service marks, and applications therefor as well as the
goodwill of the business associated therewith.
"Material Adverse Effect" means a material adverse effect on the financial
condition, business, results of operations or prospects of a Person and its
Subsidiaries, taken as a whole, but shall exclude any material adverse effect
arising out of any change or development relating to (i) U.S. or global economic
or industry conditions, (ii) changes in U.S. or global financial markets or
conditions, and/or (iii) any generally applicable change in Law or GAAP or
interpretation of any thereof. "Cerner Material Adverse Effect" means a Material
Adverse Effect in respect of Cerner, "CITATION Material Adverse Effect" means a
Material Adverse Effect in respect of CITATION and "Surviving Corporation
Material Adverse Effect" means a Material Adverse Effect in respect of the
Surviving Corporation.
"Patents" mean all patents, patent applications, and inventions and
discoveries that may be patentable.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including any Governmental Entity.
"Registration Statement" means the Registration Statement on Form S-4
registering under the Securities Act the Cerner Common Stock issuable in
connection with the Merger.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other Persons performing
similar functions are directly or indirectly owned by such Person. "Cerner
Subsidiary" means a Subsidiary of Cerner.
"Tax" or "Taxes" means any federal, state, county, local or foreign taxes,
charges, levies, imposts, duties, other assessments or similar charges of any
kind whatsoever, including any interest, penalties and addition imposed thereon
or with respect thereto.
"Trade Secrets" mean trade secrets (such as customer information, technical
and non-technical data, a formula, pattern, compilation, program, device,
method, technique, drawing, process) and other confidential and proprietary
information concerning the products, processes, or services of CITATION,
including but not limited to: computer programs; unpatented or unpatentable
inventions; ideas, discoveries or improvements; know-how, procedures,
methodologies, machines, lectures, manuals, reports, illustrations, plans,
designs, proposals, programming aids, flow charts, algorithms, schematics;
marketing, manufacturing, or organizational research and development results and
plans; business and strategic plans; sales forecasts and plans; personnel
information, including the identity of employees of CITATION, their
responsibilities, competence, abilities, and compensation; pricing and financial
information; current and prospective customer lists and information on customers
or their employees; information concerning purchases of major equipment or
property; and information about potential mergers or acquisitions.
"368 Reorganization" means a merger that qualifies as a reorganization
within the meaning of Section 368(a) of the Code and the regulations promulgated
thereunder.
In addition to the definitions set forth above, each of the following terms
is defined in the Section set forth opposite such term:
TERMS SECTIONS
----- --------
Adverse Change in the CITATION Recommendation 7.2(b)
Affiliate Agreement 7.7
Agreement Preamble
Articles of Merger 2.1(b)
Cerner Preamble
Cerner Financial Statement 3.11
Cerner Representation Letter 7.6(b)
Cerner Return 3.12
Certificate of Merger 2.1(b)
Certificates 2.3(a)
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TERMS SECTIONS
----- --------
CITATION Preamble
CITATION Employee Plans 4.13(a)
CITATION Financial Statements 4.7(a)
CITATION Insiders 7.10(c)
CITATION Intellectual Property 4.16(b)
CITATION Representation Letter 7.6(b)
CITATION Returns 4.12(a)
CITATION Securities 4.5(b)
CITATION Shareholder Approval Recitals
CITATION Shareholders Meeting 4.19(b)
CITATION Stock Options 4.5(a)
CITATION Warrants 4.5(a)
Common Stock Recitals
Costs 7.11(b)
Delaware Law 2.1(a)
Effective Time 2.1(b)
Environmental Laws 4.17(b)
ERISA 4.13(a)
ERISA Affiliate 4.13(a)
Exchange Fund 2.3(a)
Expenses 9.3
Expiration Date 9.1(b)(i)
GAAP 3.5(d)
HSR Act 3.3
Indemnified Parties 7.11(b)
Merger Recitals
Merger Consideration 2.1(e)(i)
Merger Sub Preamble
Missouri Law 2.1(a)
Multiemployer Plan 4.13(b)
Retirement Plan 4.13(b)
Section 16 Information 7.10(b)
Shareholder Agreement Recitals
Shares Recitals
Stock Rights 2.1(f)
Superior Proposal 6.2(b)
Surviving Corporation 2.1(a)
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EXHIBIT 2.2
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this "Agreement"), dated as of May 15, 2000
among Cerner Corporation, a Delaware corporation ("Cerner"), and the
shareholders of CITATION Computer Systems, Inc., a Missouri corporation
("CITATION"), named on Schedule I hereto (individually, a "Shareholder" and
collectively, the "Shareholders").
WHEREAS, CITATION and Cerner Performance Logistics, Inc., a Delaware
corporation and a wholly-owned subsidiary of Cerner ("Merger Sub"), propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as
amended from time to time, the "Merger Agreement"; capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement)
with Cerner which provides, among other things, that CITATION will merge with
and into Merger Sub (the "Merger"); and
WHEREAS, as of the date hereof, each Shareholder owns of record or
beneficially the respective number of shares of Common Stock set opposite such
Shareholder's name on Schedule I hereto; and
WHEREAS, as an essential condition to the willingness of Cerner to
enter into the Merger Agreement, Cerner has requested that each Shareholder
agree, and in order to induce Cerner to enter into the Merger Agreement, each
Shareholder has agreed, to enter into this Agreement with respect to (i) all the
shares of Common Stock owned beneficially and of record by such Shareholder as
of the date hereof or of which such Shareholder may hereafter acquire record or
beneficial ownership (the "Shares") and (ii) any other securities owned of
record or beneficially by such Shareholder as of the date hereof or of which
such Shareholder may hereafter acquire ownership of record or beneficially which
may be voted by or at the direction or on behalf of the Shareholder at any
meeting of CITATION shareholders or with respect to which action taken without a
meeting may be authorized by or at the direction or on behalf of such
Shareholder by written consent (the "Other Securities").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Shareholder hereby agrees that,
with respect to the CITATION Shareholders Meeting and any other meeting of
CITATION shareholders or any action to be taken by written consent, the
Shareholder shall:
(a) appear in person or by proxy (or use its reasonable best efforts
to cause the holder of record on any applicable record date to appear in
person or by proxy) for the purpose of obtaining a quorum at the CITATION
Shareholders Meeting and at any adjournment or postponement thereof;
<PAGE> 2
(b) vote (or cause to be voted) the Shares and the Other Securities
(or, as applicable, shall execute or cause to be executed written consents
in respect of the Shares and the Other Securities) in favor of the approval
and adoption of the Merger Agreement, the Merger and, any other
transactions or matters contemplated by the Merger Agreement, and any
actions required in furtherance thereof and hereof; and
(c) not encourage any holder of securities of CITATION to vote against
the approval and adoption of the Merger Agreement, the Merger or any other
transactions or matters contemplated by the Merger Agreement, and not take
any action, or permit any action to be taken, that would reasonably be
expected to impede, interfere, or be inconsistent with, delay, postpone,
discourage, disparage or otherwise adversely affect, the Merger Agreement,
the Merger, this Agreement and any other transactions or matters
contemplated by the Merger Agreement, or a Shareholder's obligations
hereunder, including, but not limited to, the obligations of each
Shareholder to vote for the approval and adoption of the Merger Agreement,
the Merger and any other transactions or matters contemplated by the Merger
Agreement, and to use its reasonable best efforts to consummate and make
effective the transactions contemplated by this Agreement, provided that
nothing in this Section 1.1 shall limit any individual Shareholder who is a
director of CITATION from exercising or performing any of such
Shareholder's rights or duties solely in such Shareholder's capacity as a
director of CITATION.
SECTION 1.2 Irrevocable Proxy. In order to ensure that the voting
agreement set forth in Section 1.1 and the other obligations of each Shareholder
hereunder will be carried out, each Shareholder hereby grants an irrevocable
proxy, coupled with an interest, in the form attached hereto as Exhibit A (the
"Irrevocable Proxy"). Such Shareholder hereby revokes all other proxies and
powers of attorney with respect to the Shares and the Other Securities that such
Shareholder may have heretofore appointed or granted that would prevent such
Shareholder from performing its obligations hereunder, and no subsequent proxy
or power of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by such Shareholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of any Shareholder and any obligation of such Shareholder under this
Agreement shall be binding upon the transferees, heirs, personal
representatives, successors and assigns of such Shareholder.
SECTION 1.3 Evaluation of Investment. Each Shareholder, by reason
of such Shareholder's knowledge and experience in financial and business
matters, is capable of evaluating the merits and risks of the investment in the
Cerner Common Stock following the Merger, contemplated by the Merger Agreement.
SECTION 1.4 Documents Delivered. Each Shareholder acknowledges
receipt of copies of the following documents:
(a) the Merger Agreement and all schedules and exhibits thereto;
(b) Cerner's Annual report on Form 10-K for the fiscal year ended
January 1, 2000;
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(c) Cerner's Proxy Statement dated April 17, 2000;
(d) each report filed with the Securities and Exchange Commission by
Cerner on Forms 8-K and 10-Q since January 1, 2000; and
(e) any other information requested by any Shareholder concerning an
evaluation of an investment in Cerner Common Stock.
Each Shareholder also acknowledges that it possesses the information relating to
Cerner which such Shareholder deems relevant to its investment in the Cerner
Common Stock should the Merger be consummated.
ARTICLE II
OPTION TO PURCHASE
SECTION 2.1 Grant of Option. Each Shareholder hereby grants to
Cerner the right and option (the "Option") to purchase from such Shareholder, at
the times and on the terms and conditions hereinafter set forth, all or part of
the shares of Common Stock set opposite such Shareholder's name on Schedule I
hereto at the purchase price determined as follows: (a) with respect to 90% of
such shares for which Cerner is exercising this Option, the Merger Consideration
set forth in Section 2.1(e)(i)(A) of the Merger Agreement, and (b) with respect
to 10% of such shares for which Cerner is exercising this Option, the Merger
Consideration set forth in Section 2.1(e)(i)(B) of the Merger Agreement.
SECTION 2.2 Exercise of Option. The Option granted hereunder shall
be exercisable in whole or in part from time to time by delivery of the
following by Cerner to the a Shareholder of:
(a) Written notice of exercise signed by Cerner which specifies the
number of shares to be purchased; and
(b) Full payment for the shares, determined in accordance with Section
2.1, with respect to which such Option or portion thereof is thereby
exercised.
SECTION 2.3 Deliver of Shares. Exercises of this Option shall be
honored by the Shareholder delivering to Cerner, upon receipt of the foregoing
written notice and consideration, stock certificates evidencing such shares,
together with stock powers executed by the Shareholder in blank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Each Shareholder.
Except as set forth on the disclosure letter attached hereto, each Shareholder
represents and warrants to Cerner as follows:
-3-
<PAGE> 4
(a) Each Shareholder (if it is a corporation, general or limited
partnership, limited liability company or other legal entity) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. Such Shareholder has the
requisite power and authority (and if a natural person, the legal capacity)
to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by such Shareholder and no other proceedings on the part of such
Shareholder are necessary to authorize this Agreement and the consummation
of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Shareholder and, assuming that this
Agreement constitutes a valid and binding agreement of Cerner, is a legal,
valid and binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws, now or hereafter in effect, relating to or affecting the
rights and remedies of creditors generally, and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or a law) and to general principles governing the
duties of fiduciaries.
(b) The execution and delivery of this Agreement by such Shareholder
do not, and the performance of this Agreement by such Shareholder will not
conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation of any
Encumbrances (as defined below) on any of the assets of such Shareholder
pursuant to any contract or other instrument to which such Shareholder is a
party or by which such Shareholder or any of such Shareholder's assets are
bound, except for any thereof that would not reasonably be expected to
materially impair the ability of such Shareholder to perform such
Shareholder's obligations hereunder or to consummate the transactions
contemplated hereby.
(c) The execution and delivery of this Agreement by such Shareholder
do not, and the performance of this Agreement by such Shareholder will not,
require such Shareholder to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any Governmental
Entity based on any federal, state, local or foreign law, statute,
ordinance, rule, regulation, permit, injunction, writ, judgment, decree or
order (collectively, "Laws") of any Governmental Entity, except (i)
pursuant to the Exchange Act, the Securities Act and the HSR Act; and (ii)
where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, could not reasonably be
expected to materially impair the ability of such Shareholder to perform
such Shareholder's obligations hereunder or to consummate the transactions
contemplated hereby.
(d) There is no suit, action, investigation or proceeding pending or,
to the knowledge of such Shareholder, threatened against such Shareholder
at law or in equity before or by any Governmental Entity that would
reasonably be expected to materially impair the ability of such Shareholder
to perform such Shareholder's obligations hereunder or to consummate the
transactions contemplated hereby.
-4-
<PAGE> 5
(e) Such Shareholder owns beneficially and of record the shares of
Common Stock set forth opposite such Shareholder's name on Schedule I
hereto (the "Existing Shares"). Except as set forth on Schedule I, the
Existing Shares constitute all the shares of Common Stock owned of record
or beneficially by such Shareholder. Except as set forth on Schedule I,
such Shareholder has sole voting power, sole power of disposition and all
other Shareholder rights with respect to all the Existing Shares, with no
restrictions, other than pursuant to applicable securities laws, on such
Shareholder's rights of disposition pertaining thereto. Such Shareholder
owns options or warrants to purchase or other securities convertible or
exchangeable into or exercisable for the number of shares of such Common
Stock set forth opposite such Shareholder's name on Schedule I hereto
(collectively, the "Derivative Securities"). None of the Existing Shares or
Derivative Securities is subject to (i) any right of first refusal or first
offer, (ii) right to purchase, acquire or vote, or (iii) proxy or power of
attorney, except in the case of clause (ii) or (iii) any rights created by
this Agreement. Such Shareholder has good and valid title to all the
Existing Shares, free and clear of all Encumbrances (other than any
Encumbrance created by this Agreement).
(f) Such Shareholder (i) is not a party to any agreement, arrangement
or understanding with respect to voting, holding or disposing of any
Shares, Other Securities, shares of Common Stock or the shares of Cerner
Common Stock, either as of the date hereof or at any time in the future,
and (ii) is not a member of a "group" within the meaning of Section
13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder, with respect to
Shares, Other Securities, shares of Cerner Common Stock, except for this
Agreement.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
SECTION 4.1 No Solicitation. Each Shareholder and its
Representatives shall immediately cease and cause to be terminated all existing
discussions or negotiations to which the Shareholder or its officers, directors,
employees, agents, accountants, counsel, advisors or consultants (collectively,
"Representatives") are a part relating to an Acquisition Proposal for CITATION
with any parties conducted heretofore. From the date hereof until the Effective
Time or, if earlier, the termination of the Merger Agreement pursuant to Article
IX thereof, each Shareholder shall not, whether directly or indirectly through
Representatives or other intermediaries, and will instruct such Shareholder's
Representatives not to, whether directly or indirectly through Representatives
or other intermediaries, initiate, solicit or encourage (including by way of
furnishing information or assistance), or take any other action to facilitate,
any inquiries or the making of any proposal regarding a potential Acquisition
Proposal for CITATION or any transaction referred to in Section 6.2, or enter
into or maintain discussions or negotiate with any person regarding, in
furtherance of or relating to such inquiries or the making of a proposal
regarding or consummation of an Acquisition Proposal for CITATION, or agree to
or endorse any Acquisition Proposal for CITATION, or disclose any non-public
information relating to CITATION to any person that has made or may reasonably
be expected to make a proposal regarding an Acquisition Proposal for CITATION or
that has advised CITATION that it is or may be interested in making a proposal
regarding an Acquisition Proposal for
-5-
<PAGE> 6
CITATION, or authorize or permit any of such Shareholder's Representatives to
take any such action, and each Shareholder shall use such Shareholder's
reasonable best efforts to cause such Shareholder's Representatives not to take
any such action, and each Shareholder shall promptly notify Cerner if any such
inquiries or proposals are made regarding a potential Acquisition Proposal for
CITATION, and each Shareholder shall promptly inform Cerner as to the terms and
details of any such inquiry or proposal (including the identity of the true
party in interest making such inquiry or proposal) and, if in writing, promptly
deliver or cause to be delivered to Cerner a copy of such inquiry or proposal,
and each Shareholder shall keep Cerner informed, on a current basis, of the
status, terms and details of any such inquiries or such proposals. Anything in
this Section 4.1 to the contrary notwithstanding, nothing in this Section 4.1
shall limit any individual Shareholder who is also a director of the CITATION,
from exercising or performing any of such Shareholder's rights or duties solely
in such Shareholder's capacity as a director of the CITATION.
Further Assurances. Each Shareholder agrees to use such Shareholder's
reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including, but
not limited to, the Merger or the transactions contemplated by the Merger
Agreement. If any further action is necessary or desirable to carry out the
purposes of this Agreement, such Shareholder shall use such Shareholder's
reasonable best efforts to take all such action as promptly as practicable.
ARTICLE V
SURVIVAL
SECTION 5.1 Survival. All provisions of this Agreement shall
survive any termination of the Merger Agreement and shall remain in full force
and effect, except as otherwise provided in Sections 5.2 and 5.3.
SECTION 5.2 Termination. Articles I, II, III and IV shall terminate
upon any termination of the Merger Agreement in accordance with Article IX
thereof.
SECTION 5.3 Effect of Termination. In the event that any part of
this Agreement shall terminate pursuant to this Article V, such part of this
Agreement shall thereafter be void and the parties hereto shall have no further
rights or obligations with respect thereto, except as a result of any prior
breach thereof.
ARTICLE VI
DEFINITIONS
SECTION 6.1 Definitions. For purposes of this Agreement:
(a) "Beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined
-6-
<PAGE> 7
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
Securities beneficially owned by one Person shall include securities
beneficially owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange
Act and Rule 13d-5(b) thereunder.
(b) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(c) "Encumbrance" means any pledge, security interest, lien, claim,
encumbrance, mortgage, charge, hypothecation, option, right of first
refusal or offer, community property right, other marital right, preemptive
right, voting agreement, voting trust, proxy, power of attorney, escrow,
option, forfeiture, penalty, action at law or in equity, security
agreement, shareholder agreement or other agreement, arrangement, contract,
commitment, understanding or obligation, or any other restriction,
qualification or limitation on the use, transfer, right to vote, right to
dissent, and seek appraisal, receipt of income or other exercise of any
attribute of ownership, except for those which do not or could not
reasonably be expected to, individually or in the aggregate, materially
impair the ability of such Shareholder to perform such Shareholder's
obligations hereunder or to consummate the transactions contemplated
hereby.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 7.2 Entire Agreement. This Agreement constitutes the entire
agreement between Cerner and each Shareholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Cerner and such Shareholder with respect to the subject matter
hereof.
SECTION 7.3 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
SECTION 7.4 Assignment. Neither this Agreement nor any rights or
interests hereunder shall be assigned by any Shareholder (whether by operation
of law or otherwise)
-7-
<PAGE> 8
without the prior written consent of Cerner, except that any Shareholder may
transfer the Shares or Other Securities subject to the Voting Agreement set
forth in Section 1.1 hereof and the Irrevocable Proxy attached hereto as Exhibit
A. Cerner may assign, in its sole discretion, its rights hereunder to any direct
or indirect wholly owned subsidiary or affiliate of Cerner, but no such
assignment shall relieve Cerner of its obligations hereunder if such assignee
does not perform such obligations.
SECTION 7.5 Amendments. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
SECTION 7.6 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, facsimile
transmission, mail (registered or certified mail, postage prepaid, return
receipt requested), or courier service providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to Cerner and/or Merger Sub, to:
Cerner Corporation
2800 Rockcreek Parkway
Kansas City, Missouri 64117
Attention: President
with copies to:
Cerner Corporation
2800 Rockcreek Parkway
Kansas City, Missouri 64117
Attention: General Counsel
Stinson, Mag & Fizzell, P.C.
1201 Walnut Street, Suite 2800
Kansas City, MO 64106
Attention: Craig L. Evans
-8-
<PAGE> 9
If to Shareholder, in accordance with the information
set forth on Schedule I hereto.
with copies to:
CITATION, Inc.
424 South Woods Mill Road
Suite 200
Chesterfield, Missouri 63017
Attention: President
Thompson Coburn LLP
One Firstar Plaza
St. Louis, Missouri 63101
Attention: Thomas A. Litz
or to such other address as the person to whom notice is given may have
previously furnished the others in writing in the manner set forth above.
SECTION 7.7 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity not a party hereto.
SECTION 7.8 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
may cause the other party to sustain damage for which it may not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party may be
entitled to the remedy of specific performance of such agreement and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
SECTION 7.9 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
SECTION 7.10 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon strict compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
SECTION 7.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri, without giving
effect to the principles of conflicts of law thereof.
SECTION 7.12 Waiver of Jury Trial. EACH OF CERNER AND EACH
SHAREHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
-9-
<PAGE> 10
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT
OR SUCH SHAREHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 7.13 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CERNER CORPORATION
By: /s/ Zane M. Burke
--------------------------------
Name: Zane Burke
Title: Vice President
/s/ Richard D. Neece
--------------------------------
Shareholder
/s/ J. Robert Copper
--------------------------------
Shareholder
/s/ Larry D. Marcus
--------------------------------
Shareholder
/s/ David T. Pieroni
--------------------------------
Shareholder
CFB Venture Fund I, Inc.
By: /s/ James F. O'Donnell
--------------------------------
James F. O'Donnell
Chairman and CEO
Shareholder
-10-
<PAGE> 11
SCHEDULE 1 - SHAREHOLDER AGREEMENT
<TABLE>
<CAPTION>
NAME OF OTHER SECURITIES
SHAREHOLDER SHARES OWNED OWNED ADDRESS FOR NOTICES
----------- ------------ ----- -------------------
<S> <C> <C> <C>
J. Robert Copper 310,511 205,000 7500 Oxford Drive
Clayton, MO 63105-2808
Richard D. Neece 107,000 135,000 9966 Old Chatham Road
St. Louis, MO 63124
James F. O'Donnell(1) 643,229 12,000 12312 Borcherding Lane
Des Peres, MO 63131
David T. Pieroni 23,968 22,000 25 Briarcliff
Ladue, MO 63124-1761
Fred L. Brown 36,164 22,000 14319 Manderleigh Woods Drive
Town & Country, MO 63017
Larry D. Marcus 12,418 15,000 248 Gay Avenue
Clayton, MO 63105
</TABLE>
- --------
(1) Mr. O'Donnell beneficially owns 636,229 shares of Company Common Stock
through CFB Venture Fund I, Inc. ("CFB"), a subsidiary of Commerce
Bancshares, Inc. ("CBI"). Mr. O'Donnell is the Chairman of CFB. Mr.
O'Donnell may be deemed to share voting and investment power over those
shares with CBI.
-11-
<PAGE> 12
EXHIBIT A
IRREVOCABLE PROXY COUPLED WITH AN INTEREST
The undersigned hereby irrevocably appoint(s) Cerner Corporation, a
Delaware corporation ("Cerner"), as the proxy of the undersigned and hereby
grant(s) to Cerner this irrevocable proxy coupled with an interest ("Irrevocable
Proxy") with respect to shares (the "Shares," which term shall
include any and all other shares of capital stock or securities or rights issued
or issuable in respect thereof on or after the date hereof) of the common stock,
par value $.10 per share ("Common Stock"), of CITATION Computer Systems, Inc., a
Missouri corporation (the "Company"), that the undersigned own(s) of record, or
otherwise has the right to vote, with all power and authority to vote and to
execute and deliver written consents, in each case, in the name, place and stead
of the undersigned, and at any annual or special meeting of shareholders of the
Company, or at any adjournment or postponement thereof, or as to any action that
can be taken by written consent, in favor of approval and adoption of the
Agreement and Plan of Merger dated the date hereof among Cerner, the Company and
Cerner Performance Logistics, Inc., a Delaware corporation ("Merger Sub"), as
may be amended from time to time, the ("Merger Agreement"), the Merger, any
other transactions or matters contemplated by the Merger Agreement, and any
actions required in furtherance of any of the foregoing, in such manner as
Cerner may determine in its sole and unlimited discretion, in each case to the
same extent and with the same effect as the undersigned might or could do under
any applicable law or regulation governing the rights and powers of shareholders
of a Missouri corporation, irrespective of whether the undersigned is present at
such meeting.
This Irrevocable Proxy constitutes a valid and effective irrevocable
proxy coupled with an interest of Cerner in the Shares of the undersigned in
respect of the foregoing Shares of Common Stock of the Company; revokes any
proxy or proxies heretofore given by the undersigned in respect of any Shares of
Common Stock of the Company; this Irrevocable Proxy shall remain in full force
and effect until the earlier of (i) termination of the Merger Agreement in
accordance with Article IX thereof, or (ii) the consummation of the Merger.
Unless otherwise defined herein, all capitalized terms shall have the respective
meanings set forth in the Merger Agreement.
This Irrevocable Proxy shall continue to cover the Shares sold,
transferred or otherwise disposed of after the date hereof through the time
period referred to in the last clause of the immediately preceding paragraph.
Dated as of May , 2000
--------------------------------------
Name:
-------------------------------
STATE OF )
----------------------------
) ss.
COUNTY OF )
---------------------------
Sworn to and subscribed before me this day of May, 2000
and acknowledged before me as being the free act and deed of the above
signatory.
--------------------------------------
Notary Public
My Commission expires:
------------
<PAGE> 1
EXHIBIT 99.1
CITATION COMPUTER SYSTEMS, INC.
424 South Woods Mill Road
Chesterfield, MO 63017
Web Site: http://www.cita.com
NASDAQ: CITA
At CITATION Computer Systems, Inc.
Richard Neece
President
(314) 579-7900
FOR IMMEDIATE RELEASE
MONDAY, MAY 15, 2000
CITATION COMPUTER SYSTEMS ANNOUNCES
DEFINITIVE AGREEMENT FOR BUSINESS COMBINATION WITH CERNER CORPORATION
-----------------------
CITATION COMPUTER SYSTEMS REPORTS FOURTH QUARTER RESULTS
ST. LOUIS, MAY 15, 2000--CITATION COMPUTER SYSTEMS, INC. (NASDAQ: CITA), a
provider of clinical and managed care information systems to the healthcare
industry, today announced the signing of a definitive agreement for a business
combination with Cerner Corporation (Nasdaq: CERN). In addition, CITATION
reported its fourth quarter and fiscal year results for the periods ended March
31, 2000.
Under terms of the agreement, Cerner will pay 0.153 shares of Cerner stock and
$0.51 in cash for each share of CITATION, resulting in the issuance of 598,000
shares of Cerner stock for 90% of CITATION and payment of $2 million for the
remaining 10% (determined at an effective cash price of $5.10 per share of
CITATION). The transaction, which as to the stock portion will be tax-free to
CITATION shareholders and accounted for as a purchase, is expected to close in
the third quarter this year pending CITATION shareholder and regulatory
approval.
"This acquisition is good news for CITATION shareholders, customers and
employees," said J. Robert Copper, Chairman and Chief Executive Officer of
CITATION Computer Systems. "Cerner and CITATION are uniquely suited to work
together - we share common goals and common operating practices. It's a perfect
fit."
Copper added, "Through Cerner's commitment to client service and continued
research, development and advancements within the laboratory, CITATION clients
will have access to a broader range of technological options and solutions to
meet the evolving needs of their organizations. The leadership of both
organizations believe that this transaction will benefit each of our
constituencies and the entire healthcare marketplace."
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<PAGE> 2
CITATION COMPUTER SYSTEMS, INC.
ADD 1
Cerner Corporation is the world's leading clinical and healthcare information
technology company. With Cerner's HNA Millennium system, Cerner has developed a
comprehensive suite of solutions that promotes personal and community health
management
"CITATION is a unique complement to our large laboratory client base that
primarily consists of larger hospitals, health systems and independent
laboratories," said Neal L. Patterson, Chairman and Chief Executive Officer of
Cerner. "The strategic acquisition of CITATION allows Cerner to broaden our
market presence in the lab industry," continued Patterson. "The clinical
laboratory is the nexus or diagnostic center of any health system or community.
A broad install base of clinical laboratories further Cerner's mission to
improve healthcare efficiencies, patient safety and appropriate clinical
decision-making."
The current CITATION office in St. Louis will be maintained with no significant
change in employment levels currently anticipated.
CITATION'S FOURTH QUARTER AND FISCAL YEAR RESULTS
For the fourth quarter ended March 31, 2000, the company reported a net loss of
$122,000, or $0.03 per share, on revenues of $2.6 million, compared to a net
loss of $651,000, or $0.17 per share, on revenues of $4.6 million during the
same period last year.
For the twelve-month period ended March 31, 2000, the company reported net
income of $189,000, or $0.05 per share, on revenues of $15.0 million, compared
to a net loss of $415,000, or $0.11 per share, on revenues of $16.1 million.
**************
CITATION Computer Systems, Inc. is a provider of client/server clinical and
managed care information systems for the healthcare enterprise. CITATION's
clinical and managed care systems are found in approximately 300 healthcare
facilities throughout the United States, Canada, the United Kingdom, Ireland,
Asia-Pacific, and other countries. CITATION is headquartered in St. Louis,
Missouri. C-COM, C-LAB, and C-RIS are registered trademarks of CITATION.
Cerner Corporation (www.cerner.com) is the leading supplier of clinical and
management information and knowledge systems to more than 1,000 healthcare
organizations worldwide. Cerner's mission is to connect the appropriate persons,
knowledge and resources at the appropriate time and location to achieve the
optimal health outcome. Cerner's vision of proactive healthcare management
drives innovation today, while creating a foundation for tomorrow's healthy
populations. With HNA Millennium, Cerner has developed a comprehensive suite of
solutions that promote personal and community health management by providing the
link between individuals and the care process. HNA Millennium applications work
on a cohesive platform that is open, intelligent and scalable. This allows for
communication, access, and data to be shared throughout the healthcare
community. The following are trademarks and/or service marks of Cerner
Corporation: Cerner, Cerner's logo, Health Network Architecture, and HNA
Millennium.
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<PAGE> 3
CITATION COMPUTER SYSTEMS, INC.
ADD 2
This release may contain forward-looking statements that involve a number of
risks and uncertainties. It is important to note that the company's performance,
financial condition or business could differ materially from those expressed in
such forward-looking statements. Factors that could affect results include those
relating to the proposed merger, including failure to achieve expected
synergies, failure to obtain required regulatory or shareholder approval, and
loss of key personnel. Other factors that could cause or contribute to such
differences include, but are not limited to: variations in the Company's
quarterly operating results, volatility of the Company's stock price, market
risk of investments, changes in the healthcare industry, significant
competition, the Company's proprietary technology may be subjected to
infringement claims or may be infringed upon, regulations of the Company's
software by the U.S. Food and Drug Administration or other government
regulation, the possibility of product-related liabilities, possible failures or
defects in the performance of the Company's software, the possibility that the
Company's anti-takeover defenses could delay or prevent an acquisition of the
Company and uncertainties related to the Year 2000 transition. Additional
discussion of these and other factors affecting the Company's business is
contained in the company's filings with the Securities and Exchange Commission.
The company undertakes no obligation to update forward-looking statements to
reflect changed assumptions, the occurrence of unanticipated events or changes
in future operating results, financial condition or business over time.
We urge investors and security holders to read the Proxy Statement/Registration
Statement on Form S-4, to be filed by Cerner and CITATION, which will contain or
incorporate by reference such documents relating to and other important
information regarding the merger. This document and amendments to this document
will be filed with the U. S. Securities and Exchange Commission. When this and
other documents are filed with the SEC, they may be obtained free at the SEC's
website at www.sec.gov. You may also obtain this document for free (when
available) from CITATION by directing your request to Investor Relations at
(314) 579-7900 or by fax at (314) 579-7990.
FOR MORE INFORMATION ON CITATION COMPUTER SYSTEMS, INC. VIA FACSIMILE AT NO
COST, SIMPLY DIAL 1-800-PRO-INFO AND ENTER THE COMPANY SYMBOL CITA,
OR VISIT CITATION'S WEB SITE AT WWW.CITA.COM
- FINANCIAL TABLES TO FOLLOW -
<PAGE> 4
CITATION COMPUTER SYSTEMS, INC.
ADD 3
CITATION COMPUTER SYSTEMS, INC.(R)
CONDENSED SUMMARY OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Twelve Months Ended
3/31/00 3/31/99 3/31/00 3/31/99
------- ------- ------- -------
Unaudited Audited
--------- -------
<S> <C> <C> <C> <C>
Net system sales and service revenues:
System sales $ 1,188 $ 2,805 $ 8,387 $ 8,669
Service revenue 1,449 1,827 6,609 7,459
-------- -------- -------- --------
Total revenues 2,637 4,632 14,996 16,128
Cost of products and services sold:
System costs 736 2,140 5,679 6,110
Service costs 413 544 1,615 1,934
Total cost of products and services sold 1,149 2,684 7,294 8,044
-------- -------- -------- --------
Gross Profit 1,488 1,948 7,702 8,084
Research and development 653 592 2,500 2,369
Selling and administrative expense 1,049 1,307 4,829 5,207
Loss on sale of financial systems business - 593 - 663
-------- -------- -------- --------
Operating income (loss) (214) (544) 373 (155)
Other income (expense), net 11 (17) (58) (19)
MEDASYS related expenses - (495) - (495)
-------- -------- -------- --------
Income (loss) before income taxes (203) (1,056) 315 (669)
Provision (benefit) for income taxes (81) (405) 126 (254)
-------- -------- -------- --------
Net income (loss) $ (122) $ (651) $ 189 $ (415)
======== ======== ========= ========
Net income (loss) per share - basic $ (0.03) $ (0.17) $ 0.05 $ (0.11)
======== ======== ======== ========
Weighted average shares outstanding
Basic 3,876 3,835 3,858 3,823
======== ======== ========= ========
Diluted 3,876 3,835 3,889 3,823
======== ======== ========= ========
</TABLE>
<PAGE> 5
CITATION COMPUTER SYSTEMS, INC.
ADD 4
CITATION COMPUTER SYSTEMS, INC.
CONDENSED BALANCE SHEET - AUDITED
(IN THOUSANDS)
<TABLE>
<CAPTION>
March 31 March 31,
2000 1999
---- ----
<S> <C> <C>
Assets:
Current Assets:
Cash and cash equivalents $ 295 $ 204
Accounts Receivable:
Trade, net 5,900 6,857
Other 456 445
Inventories 327 348
Prepaid expenses and other current assets 423 369
Deferred tax asset 80 142
------ ------
Total current assets 7,481 8,365
Software development costs, net 1,455 1,775
Property and equipment, net 521 699
Long-term accounts receivable 1,441 1,569
Long-term deferred tax assets 910 1,104
Other assets 263 366
------ ------
Total assets $12,071 $13,878
====== ======
Liabilities and shareholders' equity:
Current Liabilities:
Current portion of long-term debt $197 $239
Accounts payable 271 1,223
Customer deposits 149 236
Accrued bonuses and commissions 66 139
Other accrued liabilities 181 211
Deferred service revenue 2,502 2,521
------ ------
Total current liabilities 3,366 4,569
------ ------
Long-term debt 621 1,491
------ ------
Common stock 388 384
Paid-in capital 6,668 6,596
Retained earnings 1,028 838
------ ------
8,084 7,818
------ ------
Total liabilities and shareholders' equity $12,071 $13,878
====== ======
</TABLE>
