Exhibit 10.1




 





 


AGREEMENT AND PLAN OF MERGER


 


by and among


 


LAWSON SOFTWARE AMERICAS, INC.,


a Delaware corporation,


 


HIGHWAY ACQUISITION, INC.,


a Delaware corporation,


 


QUOVADX HOLDINGS, INC.,


a Delaware corporation,


 


BATTERY VENTURES, VII, L.P.,


a Delaware limited partnership,


 


BATTERY INVESTMENT PARTNERS VII, LLC,


a Delaware limited liability company


 


and


 


R. DAVID TABORS,

in his capacity
as


the Stockholders’ Agent


 






 


Dated as of January 7, 2010


 








 


 





 

















 


AGREEMENT AND PLAN OF MERGER


 


THIS AGREEMENT AND PLAN OF MERGER
(this “Agreement”) is made and entered into
as of January 7,  2010, by and
among: (a) LAWSON SOFTWARE AMERICAS, INC., a
Delaware  corporation (“Parent”);
(b) HIGHWAY ACQUISITION, INC., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger
Sub”); (c) QUOVADX HOLDINGS, INC.,
a Delaware corporation (the “Company”); (d) BATTERY VENTURES VII, L.P., a Delaware limited partnership,
and BATTERY INVESTMENT PARTNERS VII, LLC, a
Delaware limited liability company, (each a “Principal
Stockholder,” and collectively the “Principal
Stockholders”), and (e) R. DAVID
TABORS, in his capacity as the representative of the Effective Time
Holders (as defined below) pursuant to Section 11.1 hereof (the “Stockholders’ Agent”).  Certain other capitalized terms used in this
Agreement are defined in Exhibit A.


 


RECITALS


 


A.            Parent,
Merger Sub and the Company intend to effect a merger of Merger Sub into the
Company in accordance with this Agreement and the DGCL (the “Merger”).  Upon consummation of the Merger, Merger Sub
will cease to exist, and the Company will become a wholly owned subsidiary of
Parent.


 


B.            This
Agreement has been approved by the respective boards of directors of Parent,
Merger Sub and the Company.


 


C.            Immediately
after the execution of this Agreement, and as a condition and inducement to
Parent’s willingness to enter into this Agreement, the Company will obtain and
deliver to Parent a true, correct and complete copy of a written consent of
stockholders evidencing the approval of this Agreement in the form attached
hereto as Exhibit B (the “Stockholder Written Consent”),
signed by certain stockholders of the Company constituting the Requisite
Stockholder Vote.


 


D.            Concurrently
with the execution and delivery of this Agreement, and as a condition and
inducement to Parent’s willingness to enter into this Agreement, each of the
Principal Stockholders and Russell Fleischer are executing and delivering
Support Agreements in favor of Parent (the “Support
Agreements”).


 


E.             A
portion of the consideration otherwise payable by Parent in connection with the
Merger shall be placed in escrow by Parent as security for the indemnification
obligations set forth in this Agreement.


 


AGREEMENT


 


The parties to this
Agreement agree as follows:


 


SECTION 1.  DESCRIPTION OF TRANSACTION.


 


1.1        Merger
of Merger Sub into the Company.  Upon the terms
and subject to the conditions set forth in this Agreement, at the Effective
Time, Merger Sub shall be merged with 


 

















 


and into the
Company, and the separate existence of Merger Sub shall cease.  The Company will continue as the surviving
corporation in the Merger (the “Surviving Corporation”).


 


1.2        Effects
of the Merger.  The Merger shall have the effects set forth
in this Agreement and in the applicable provisions of the DGCL.


 


1.3        Closing.  The consummation of the Transactions (the “Closing”) shall take place at the
offices of Cooley Godward Kronish LLP, 500 Boylston Street, Boston,
Massachusetts 02116 at 10:00 a.m. local time on a date to be mutually
agreed upon by Parent and the Company, which date shall be no later than the
later of (a) three (3) business days after the satisfaction or waiver
of the conditions set forth in Section 7 of this Agreement (other than Section 7.1(a) (HSR
Act)) and other than those conditions which, by their terms, are intended to be
satisfied at the Closing), or (b) the first business day after the
satisfaction or waiver of the condition set forth in Section 7.1(a) (HSR
Act)).  Subject to the terms and
conditions hereof, each of the parties shall use its reasonable best efforts to
take all actions and to do all things necessary, proper or advisable to have
the Closing occur on January 11, 2010 (the “Scheduled
Closing Date”).   The date
on which the Closing actually takes place is referred to in this Agreement as
the “Closing Date.”


 


1.4        Effective
Time.  Subject to the provisions of this Agreement,
a certificate of merger in substantially the form attached hereto as Exhibit C (the “Certificate of Merger”) shall be
duly executed by the Company and concurrently with or as soon as practicable
following the Closing delivered to the Secretary of State of the State of
Delaware for filing.  The Merger shall
become effective upon the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware (the “Effective
Time”).


 


1.5        Certificate
of Incorporation and Bylaws; Directors and Officers. 
Unless otherwise determined by Parent and the Company prior to the
Effective Time:


 


(a)           the certificate of incorporation of the Surviving Corporation shall be
amended and restated as of the Effective Time to conform to Exhibit D;


 


(b)           the bylaws of the Surviving Corporation shall be amended and restated
as of the Effective Time to conform to the bylaws of Merger Sub as in effect
immediately prior to the Effective Time; and


 


(c)           the directors and officers of the Surviving Corporation immediately
after the Effective Time shall be the individuals identified on Exhibit E.


 


1.6        Merger
Consideration.


 


(a)           Certain Definitions.  As used
herein, the following terms shall have the following meanings:


 


“Aggregate Common Payment” shall mean
an aggregate amount of cash equal to (i) the Merger Consideration plus (ii) the Option
Proceeds less (iii) the
Aggregate Series A Payment.


 


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“Aggregate Series A Payment”
shall mean an aggregate amount of cash equal to the product obtained by
multiplying (i) the Series A Merger Consideration by (ii) the Total
Outstanding Series A Preferred Shares.


 


“Applicable Per Share Merger Consideration”
shall mean, (i) with respect to the Series A Preferred Stock, the Series A
Merger Consideration and (ii) with respect to the Company Common Stock,
the Common Stock Merger Consideration. 
In each case, the Applicable Per Share Merger Consideration shall be
determined for each class of Company Capital Stock pursuant to the Company
Charter and this Agreement and shall take into consideration the relative
priorities and preferences of each class of Company Capital Stock upon a
liquidation, dissolution or winding up of the Company (including a deemed
liquidation event), all as set forth in the Company Charter.


 


“Assumed Letters of Credit” shall
mean those letters of credit set forth on Exhibit F.


 


“Common Stock Merger Consideration”
shall mean an amount of cash per share of Company Common Stock equal to (i) the
Aggregate Common Payment divided by
(ii) the Total Outstanding Common Shares.


 


“Company Capital Stock” shall mean
the capital stock of the Company, including the Company Common Stock and
Company Preferred Stock.


 


“Company Charter” shall mean the
certificate of incorporation of the Company as in effect immediately prior to
the Effective Time.


 


“Company Common Stock” shall mean the
common stock, par value $0.001 per share, of the Company.


 


“Company Debt” shall mean any
Indebtedness of the Company Group outstanding as of the Effective Time.


 


“Company Group” is sometimes used
herein to refer to the Company and its Subsidiaries, on a consolidated basis.


 


“Company Preferred Stock” shall mean
the preferred stock of the Company, par value $0.001 per share, including the Series A
Preferred Stock.


 


“Company Transaction Expenses” shall
mean all Transaction Expenses of the Company that remain unpaid as of the
Effective Time.


 


“Effective Time Holder” shall mean (i) each
holder of Company Capital Stock as of immediately prior to the Effective Time
that does not perfect such holder’s appraisal rights under the DGCL and is
otherwise entitled to receive consideration pursuant to Section 1.10 of
this Agreement and (ii) each holder of Payout Options.


 


“Escrow Participants” shall mean
Battery Ventures, VII, L.P., a Delaware limited partnership, Battery Investment
Partners VII, LLC, a Delaware limited liability company, 


 


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and Russell
Fleischer, who shall be the only Effective Time Holders contributing to the
Escrow Amount.


 


“Fleischer Severance” shall mean all
payments owed to Russell Fleischer as Severance Benefits (as defined in the
Fleischer Release) pursuant to that certain letter agreement dated June 4,
2007, between Quartzite Holdings, Inc. and Russell Fleischer, or otherwise
in connection with the termination of his employment with the Company (other
than accrued wages and bonus), as more fully described in the separation and
mutual release agreement executed by Mr. Fleischer (the “Fleischer Release”) and delivered at the Closing by the
Company to Parent in satisfaction of Section 7.2(g) of this
Agreement.


 


“Indebtedness” shall mean (i) any
indebtedness of the Company Group for borrowed money or issued in substitution
of or exchange of indebtedness for borrowed money, (ii) any indebtedness
of the Company Group evidenced by any note, bond, debenture or other debt
security, and any contingent reimbursement obligation with respect to any
letter of credit (other than the Assumed Letters of Credit), (iii) any
swap agreements, collar agreements or interest rate hedging arrangements, (iv) any
indebtedness of the Company Group for borrowed money guaranteed in any manner
by any member of the Company Group (including guarantees in the form of an
agreement to repurchase or reimburse) and any other indebtedness for which any
member of the Company Group is indirectly liable as guarantor, surety or
otherwise, and (iv) all interest, premiums, penalties (including
prepayment penalties), charges, fees, expenses and other amounts due in
connection with the payment and satisfaction in full of the obligations
described in the foregoing clauses (i) through (iv) of this
definition.  Notwithstanding the
foregoing, the term Indebtedness shall specifically exclude the Assumed Letters
of Credit.


 


“Option Proceeds” shall mean the
aggregate exercise price of all Company Payout Options issued outstanding
immediately prior to the Effective Time.


 


“Payout Options” shall mean all
issued and outstanding Company Options to the extent outstanding and
unexercised immediately prior to the Effective Time (whether or not then
exerciseable or vested).


 


“Payout Spreadsheet” shall mean a
spreadsheet, to be provided with the Estimated Statement setting forth the good
faith estimates of the following (i) the Estimated Merger Consideration
(to be reflected on the Estimated Statement) and (ii) the Applicable Per
Share Merger Consideration for each issued and outstanding class of Company
Capital Stock based on the Estimated Merger Consideration, including (A) the
Common Stock Merger Consideration and (B) the Series A Merger
Consideration, in each case determined as of immediately prior to the Effective
Time in accordance with the Company Charter. 
The Payout Spreadsheet shall be prepared and determined in accordance
with the same accounting methods, policies, practices and procedures, with
consistent classifications, judgment and estimation methodology as the Payout
Spreadsheet Trial Run.  For avoidance of
doubt, the items, calculations and numbers set forth on the Payout Spreadsheet
shall be updated from the Payout Spreadsheet Trial Run to reflect (x) adjustments
in accrued dividends and interest through the Effective Time; (y) changes
in third party expenses and/or other items reflected in the calculation of the
Merger Consideration pursuant to Section 1.6(b) for periods through
the Effective Time; or (z) adjustments arising as a result of changes in
the total Closing Cash held by the Company. 



 


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If applicable, the
Payout Spreadsheet shall be revised by the Stockholders’ Agent to reflect any
changes resulting from the determination of the Final Merger Consideration (as
compared to the Estimated Merger Consideration), all in accordance with Section 1.9(e)(iii).


 


“Payout Spreadsheet Trial Run” shall
mean the spreadsheet attached hereto on the date hereof as Exhibit G,
setting forth good faith estimates of the following: (i) the Merger
Consideration; and (ii) the Applicable Per Share Merger Consideration for
each issued and outstanding class of Company Capital Stock, including (A) the
Common Stock Merger Consideration and (B) the Series A Merger
Consideration, in each case determined on a pro forma basis
assuming the Closing occurs on the Scheduled Closing Date.


 


“Pro Rata Share” shall mean, with
respect to each Effective Time Holder, as to any Damages or as to the Escrow
Amount or otherwise for purposes of this Agreement, the percentage of the
Merger Consideration to which such Effective Time Holder is entitled.  Each Effective Time Holder’s Pro Rata Share
is set forth in the Payout Spreadsheet Trial Run and shall be updated (based
solely on dividends accrued from the date hereof through the Effective Time) in
the final Payout Spreadsheet.


 


“Series A Merger Consideration”
shall mean an amount of cash per share of Series A Preferred Stock equal
to (i) $10.00 per share, plus (ii) eight
percent (8%) per annum of $10.00 from the date of original issuance of such
share of Series A Preferred Stock to the Closing Date and compounded
quarterly.


 


“Series A Preferred Stock” shall
mean the Company’s Series A Perpetual Preferred Stock, par value $0.001
per share.


 


“Total Outstanding Common Shares”
shall mean the sum of (i) the aggregate number of shares of Company Common
Stock issued and outstanding immediately prior to the Effective Time plus (ii) the aggregate
number of shares of Company Common Stock underlying Payout Options issued and
outstanding immediately prior to the Effective Time (but excluding shares of
Company Common Stock actually held in treasury immediately prior to the
Effective Time).


 


“Total Outstanding Series A Preferred Shares”
shall mean the aggregate number of shares of Company Series A Preferred
Stock issued and outstanding immediately prior to the Effective Time.


 


“Transaction Expenses” shall mean all
fees, costs and expenses of the Company Group (including those described in Section 11.2
of this Agreement), whenever incurred, and whether or not invoiced prior to the
Effective Time, that relate to this Agreement or any of the Transactions,
including (i) any fees, costs or expenses payable to the Company’s outside
legal counsel, outside accountants, investment bankers and financial advisor in
connection with this Agreement or any of the Transactions, (ii) the fees
referred to in Section 2.23 of the Disclosure Schedule, (iii) the
fees and costs incurred for the preparation, filing and delivery of any
Information Statement required for the Transactions, and (iv) the
Fleischer Severance.


 


“Working Capital” shall equal the difference between:


 


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(i)            the amount of the following current
assets of the Company Group as reflected on the face of a consolidated balance
sheet of the Company Group as of the Closing Date: Accounts Receivable, net and
Prepaid Expenses and Other (provided, that,
for purposes of this definition, the following items shall be excluded from the
current assets of the Company Group: Closing Cash (referenced as Cash and Cash
Equivalents on Annex I),
Deferred Tax Assets and the other adjustments to current assets reflected on Annex I); less


 


(ii)           the amount of the following current
liabilities of the Company Group as reflected on the face of a consolidated
balance sheet of the Company Group as of the Closing Date:  Accounts Payable and Accrued Expenses and
Other (provided, that, for purposes of this
definition, the following items shall be excluded from the current liabilities
of the Company Group: Deferred Revenue; the current portion of Company Debt
(referenced as Revolver on Annex I);
Company Transaction Expenses; and the other adjustments to current liabilities
reflected on Annex I).


 


For the avoidance of
doubt, the calculation of Working Capital (A) shall be determined in
accordance with the calculation of the Working Capital as of November 30,
2009 attached hereto as Annex I; (B) shall
entirely disregard any and all effects on the current assets or current
liabilities of the Company Group directly related to the consummation of the
Merger and the Transactions (provided, that, for the avoidance of doubt, the
Working Capital as of the Closing Date will reflect the extinguishment and
payment of accrued dividends on the Series A Preferred Stock in connection
with the Merger; such accrued dividends will be paid in full in connection with
the Merger out of the Merger Consideration and are included in the Series A
Merger Consideration); (C) shall entirely disregard any and all effects on
the current assets or current liabilities of the Company Group directly related
to the financing or refinancing arrangements entered into at any time by or at
the direction of Parent or Merger Sub; and (D) shall be determined in
accordance with GAAP consistently applied using the accounting practices used
to determine the sample calculation of Working Capital attached hereto as Annex I (to the extent not
inconsistent with GAAP).


 


(b)           Calculation of the Merger Consideration. 
The “Merger Consideration” shall
equal an aggregate amount in cash determined as follows:


 


(i)            $160,000,000  (the “Enterprise Value”);


 


(ii)           minus, on a dollar-for-dollar basis, the
amount of the Company Debt;


 


(iii)         minus, on a dollar-for-dollar basis, the
amount of the Company Transaction Expenses;


 


(iv)          plus, on a dollar-for-dollar basis, an amount
equal to the cash, cash equivalents and short-term investments of the Company
Group as of Closing Date (the “Closing Cash”);
and


 


(v)            minus, on a dollar-for-dollar basis, the amount
if any by which the Working Capital is less than $5,000,000.00 (the “Working Capital Baseline”).  There shall be no increase in the Merger
Consideration if the Working Capital is greater than the Working Capital 


 


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Baseline.  For example, (A) if the Working Capital
is $2,000,000, the Merger Consideration will be reduced by $3,000,000, (B) if
the Working Capital is ($1,000,000), the Merger Consideration will be reduced
by $6,000,000, and (C) if the Working Capital is $6,000,000 there will be
no adjustment to the Merger Consideration pursuant to this Section 1.6(v).


 


1.7        Escrow. 
Of the Merger Consideration, ten percent (10%) of the Enterprise Value
(the “Escrow Amount”) shall be
deposited by Parent at the Closing, by wire transfer of immediately available
funds, into escrow pursuant to the terms of the Escrow Agreement for the period
commencing on the Closing Date and ending twelve (12) months thereafter (the “Escrow Period”) for the purpose of
satisfying indemnification claims pursuant to Section 9 hereof and for
purposes of Section 1.9(e)(ii). 
Each Escrow Participant shall contribute to the Escrow Amount in
proportion to such Escrow Participant’s Pro Rata Share (relative to the total
Pro Rata Shares of all Escrow Participants) and in the amount set forth on the
Payout Spreadsheet (such amount, as to each Escrow Participant, is sometimes
referred to herein as the “Escrow Contribution”).  Upon the expiration of the Escrow Period (or
on such later date as is specified in the Escrow Agreement), the remaining
balance of the Escrow Amount, if any, shall be distributed to the Stockholders’
Agent, on behalf of each Escrow Participant based on their respective Escrow
Contributions, all in accordance with the terms of the Escrow Agreement.  For each Effective Time Holder (other than
the Escrow Participants), such Effective Time Holder’s Escrow Contribution
shall be zero (0).


 


1.8        Calculation
and Payment of Estimated Merger Consideration.


 


(a)               Estimated
Statement.  Not less than two (2) days prior to the
Closing Date, the Company shall cause to be prepared and delivered to Parent a
reasonably detailed statement (the “Estimated Statement”)
containing (i) the unaudited consolidated balance sheet of the Company and
its Subsidiaries as of immediately prior to the Closing Date, (ii) the
amount of the Company Debt based on payoff letters received from the lenders,
and good faith estimates of Company Transaction Expenses, Closing Cash and
Working Capital, and (iii) the Company’s calculation of the Merger
Consideration (based on the amount of the Company Debt and the Company’s good
faith estimates of the Company Transaction Expenses, Closing Cash and Working
Capital) pursuant to Section 1.6(b) (the “Estimated
Merger Consideration”). 
The Estimated Statement shall be based upon the books and records of the
Company Group and other information then available and shall be reasonably
satisfactory to Parent.


 


(b)           Payments At the Closing.  At the
Closing:


 


(i)            Parent or the Surviving Corporation shall
pay the Company Debt by wire transfer of immediately available funds to each of
the applicable lenders;


 


(ii)           Parent or the Surviving Corporation shall
pay the Company Transaction Expenses by wire transfer of immediately available
funds to each of the applicable vendors;


 


(iii)         Parent shall deposit the Escrow Amount,
by wire transfer of immediately available funds, into escrow pursuant to the
terms of the Escrow Agreement for the 


 


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purpose of
satisfying indemnification claims pursuant to Section 9 and for purposes
of Section 1.9(e)(ii);


 


(iv)          Parent or the Surviving Corporation shall
pay the Fleischer Severance by wire transfer of immediately available funds to
an account designated by Mr. Fleischer, provided that Mr. Fleischer
has executed and delivered a separation and mutual release agreement in the
form attached hereto as Exhibit H;


 


(v)            Parent shall pay the Stockholders’ Agent
Retention Account to the Stockholders’ Agent in accordance with Section 11.1
hereof; and


 


(vi)          Parent shall pay to the individuals and
entities listed on Exhibit I
(the “Closing Date Payees”), by
wire transfer of immediately available funds, an amount equal to their
applicable portion of the Estimated Merger Consideration (less any applicable
Escrow Contribution and the Stockholders’ Agent Retention Account as set forth
on Exhibit I).


 


1.9        Calculation
and Payment of Final Purchase Price.


 


(a)               Within sixty (60) days following the
Closing, the Surviving Corporation shall prepare and deliver to the
Stockholders’ Agent its final determination of the Merger Consideration,
including statements of the Company Debt, Company Transaction Expenses, Closing
Cash and Working Capital (as revised or adjusted pursuant to Section 1.9(d),
each, a “Final Statement” and
collectively, the “Final Statements”), including
such schedules and data as may be appropriate to support such
calculations.  Upon receiving reasonable
advance written notice, the Surviving Corporation shall provide the Stockholders’
Agent with full access to the applicable Records, employees and accountants of
the Surviving Corporation and its Subsidiaries related to its review of the
Final Statements, and the Surviving Corporation shall make available to the
Stockholders’ Agent any working papers, trial balances and similar materials
relating to the Final Statements prepared by or on behalf of the Surviving
Corporation to the extent reasonably requested by the Stockholders’ Agent
during the dispute resolution periods described in this Section 1.9.


 


(b)               If the Stockholders’ Agent objects to the
Surviving Corporation’s determination of the Company Debt, Company Transaction
Expenses, Closing Cash or Working Capital,  as reflected
in the Final Statements, the Stockholders’ Agent shall notify the Surviving
Corporation in writing of such objection(s) within thirty (30) days after
receipt of the Final Statements from the Surviving Corporation (an “Objection Notice”).  The Objection Notice shall specify which
Final Statement(s) are being disputed and describe in reasonable detail
the basis for such disputes.


 


(c)               If the Stockholders’ Agent does not
deliver an Objection Notice, then the Final Statements will be conclusive,
final and binding in their entirety on all of the parties.  If the Stockholders’ Agent delivers an
Objection Notice with respect to one or more Final Statements in accordance
with Section 1.9(b), then (i) the Final Statement(s) not subject
to the Objection Notice shall be conclusive, final and binding with respect to
those items that are not objected to by the Stockholders’ Agent in the
Objection Notice, (ii) the Stockholders’ Agent and the Surviving
Corporation shall attempt to resolve such disputed items, and (iii) to the
extent that 


 


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the Stockholders’
Agent and the Surviving Corporation are unable to resolve any such disputes,
the items set forth in the Objection Notice shall be resolved in accordance
with the procedures set forth in Section 1.9(d) below.


 


(d)               In the event that the Surviving
Corporation and the Stockholders’ Agent are unable to resolve the disputed
items within forty-five (45) days after delivery of the Objection Notice,
either the Surviving Corporation or the Stockholders’ Agent may demand that
such disputed items be referred to an independent accounting firm that is
mutually acceptable to the Surviving Corporation and the Stockholders’ Agent to
finally resolve such disputed items.  The
independent accounting firm shall act as an arbitrator to determine only the
disputed items, and the determination of each disputed item shall be within the
range established by the Final Statements and the Objection Notice, if
any.  The determination of such
independent accounting firm shall be made as promptly as possible and shall be
final and binding upon the parties.  Each
party hereto shall be permitted to submit such data and information to such
independent accounting firm as the parties deem appropriate.  The Surviving Corporation and the
Stockholders’ Agent, on behalf of the Effective 
Time Holders, shall each pay their own costs and expenses incurred under
this Section 1.9(d).  All expenses
and fees incurred in connection with the independent accounting firm shall be
paid equally by the Surviving Corporation on one hand and the Stockholders’
Agent, on behalf of the Effective Time Holders, on the other hand.


 


(e)               The Company Debt, Company Transaction
Expenses, Closing Cash and Working Capital as determined in accordance with
this Section 1.9 shall be used to determine the final Merger Consideration
in accordance with Section 1.6(b) (the “Final
Merger Consideration”). 
Once the Final Merger Consideration is determined in accordance with Section 1.6(b) and
this Section 1.9, the following shall occur:


 


(i)            if the Final Merger Consideration exceeds
the Estimated Merger Consideration, the Stockholders’ Agent shall deliver to
Parent in writing the Stockholders’ Agent’s determination of the portion of
such difference payable to each Effective Time Holder pursuant to the Company
Charter with respect to the shares of Company Capital Stock owned of record by
such Effective Time Holder, and the Parent shall pay each Effective Time Holder
entitled to receive a portion of such difference, within three (3) business
days following delivery of such written notice, the amount set forth in such
notice (provided that the aggregate amount payable to all Effective Time
Holders pursuant to this Section 1.9(e)(i) shall not exceed the
difference between the Final Merger Consideration and the Estimated Merger
Consideration), by check or wire transfer to such Effective Time Holder; or


 


(ii)           if the Estimated Merger Consideration
exceeds the Final Merger Consideration, the Escrow Agent shall pay or cause to
be paid by wire transfer of immediately available funds to a bank account
designated in writing by Parent from the Escrow Amount, within three (3) business
days following delivery of such written notice, the amount set forth in such
notice (provided that the aggregate amount payable to Parent shall not be less
than the difference between the Estimated Merger Consideration and the Final
Merger Consideration); and


 


(iii)         the Stockholders’ Agent shall revise the
Payout Spreadsheet to reflect any changes to the amounts reflected thereon
resulting from changes in the Final Merger 


 


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Consideration (as
compared to the Estimated Merger Consideration), and shall provide such revised
Payout Spreadsheet to Parent promptly (but in any event within three (3) business
days) following the determination of the Final Merger Consideration.


 


Notwithstanding any other provision in this Agreement to the contrary,
in no event will the aggregate amount payable to the Effective Time Holders
exceed the Final Merger Consideration.


 


1.10      Conversion
of Shares.


 


(a)               Conversion. 
Subject to Sections 1.13, 1.14 and 1.15, at the Effective Time, by
virtue of the Merger and without any further action on the part of Parent,
Merger Sub, the Company or any stockholder of the Company, each share of
Company Capital Stock outstanding immediately prior to the Effective Time shall
be converted into the right to receive from Parent, following the surrender of
the certificate representing such share of Company Capital Stock in accordance
with Section 1.13, the following consideration:


 


(i)            each share of Company Capital Stock owned
by Parent, Merger Sub, the Company or any direct or indirect wholly owned
subsidiary of Parent, Merger Sub or the Company immediately prior to the
Effective Time, if any, shall, by virtue of the Merger, be canceled without
payment of any consideration with respect thereto;


 


(ii)           each share of Series A Preferred
Stock outstanding immediately prior to the Effective Time shall be converted
into the right to receive the Series A Merger Consideration;


 


(iii)         each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time shall be converted into
the right to receive the Common Stock Merger Consideration; and


 


(iv)          each share of the common stock, par value
$0.001 per share, of Merger Sub outstanding immediately prior to the Effective
Time shall be converted into one share of common stock of the Surviving
Corporation.


 


The amount of
cash, if any, that each stockholder of the Company is entitled to receive for
the shares of Company Capital Stock held by such stockholder shall be rounded
to the nearest cent (with $0.005 being rounded upward) and computed after
aggregating the cash amounts payable for all shares of each class and series of
Company Capital Stock held by such stockholder.


 


(b)               Adjustments. In the event that the Company, at any
time or from time to time between the date of this Agreement and the Effective
Time, declares or pays any dividend on Company Capital Stock payable in Company
Capital Stock or in any right to acquire Company Capital Stock, or effects a
subdivision of the outstanding shares of Company Capital Stock into a greater
number of shares of Company Capital Stock, or in the event the outstanding
shares of Company Capital Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Company
Capital Stock, then the amounts payable in respect of shares of Company Capital
Stock pursuant to Section 1.10(a) shall be appropriately adjusted.


 


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1.11      Stock
Options.


 


(a)               Payment
for Payout Options.  At the Effective Time, each then-outstanding
Payout Option shall be cancelled in exchange for the right to receive from the
Surviving Corporation, as part of the Merger Consideration, for each share of
Company Common Stock subject to such Payout Option, an amount (subject to any
applicable withholding tax) in cash equal to the product of (i) the number
of shares of Company Common Stock subject to such Payout Option immediately
prior to the Effective Time and (ii) the amount by which the Common Stock
Merger Consideration exceeds the per share exercise price of such Payout
Option. The cancellation of the Payout Options as provided in the immediately
preceding sentence shall be deemed a release of any and all rights the holder
thereof had or may have had in respect of such Payout Option.  The aggregate amount paid or payable in
respect of the cancellation of the Payout Options as set forth in this Section 1.11(a) is
referred to herein as the “Option Consideration.”


 


(b)               Termination of the
Company Option Plan. The Company Option Plan shall terminate as of the
Effective Time and the provisions in any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of the Company
Capital Stock (or any capital stock of any Subsidiary of the Company) shall be
canceled as of the Effective Time.  The
Company shall ensure that following the Effective Time no participant in the
Company Option Plan or other plans, programs or arrangements shall have any
right thereunder to acquire any equity securities of the Company, the Surviving
Corporation or any Subsidiary thereof.


 


(c)               Option
Plan Notices.  Prior to the Effective Time, the Company
shall deliver to the holders of Payout Options notices, in form and substance
reasonably acceptable to Parent, setting forth such holders’ rights pursuant to
this Agreement.


 


(d)               Other
Actions. The
Company shall take all actions that may be necessary or that Parent considers
appropriate (under the Company Option Plan or otherwise) to effectuate the
provisions of this Section 1.11 and to ensure that, from and after the
Effective Time, holders of Payout Options have no rights with respect to such
Payout Options except as set forth in Section 1.11(a).


 


1.12      Closing
of the Company’s Transfer Books.  At the
Effective Time, holders of certificates representing shares of the Company
Capital Stock that were outstanding immediately prior to the Effective Time
shall cease to have any rights as stockholders of the Company, and the stock
transfer books of the Company shall be closed with respect to all shares of
such capital stock outstanding immediately prior to the Effective Time.  No further transfer of any such shares of the
Company Capital Stock shall be made on such stock transfer books after the
Effective Time.  If, after the Effective
Time, a valid certificate previously representing any of such shares of the
Company Capital Stock (a “Company Stock Certificate”)
is presented to the Surviving Corporation or Parent, such Company Stock
Certificate shall be canceled and shall be exchanged as provided in Section 1.13.


 


1.13      Surrender
and Payment.  At or as soon as practicable after the
Effective Time, Parent will send to the holders of Company Stock Certificates
(other than the Closing Date 


 


11

















 


Payees): (i) a
letter of transmittal in customary form and containing such provisions as
Parent may reasonably specify, and (ii) instructions for use in effecting
the surrender of Company Stock Certificates in exchange for payment of the
Applicable Per Share Merger Consideration relating thereto.  Upon surrender of a Company Stock Certificate
to Parent for exchange, together with a duly executed letter of transmittal and
such other documents as may be reasonably required by Parent, the holder of
such Company Stock Certificate shall be entitled to receive in exchange
therefor payment of an amount equal to the Applicable Per Share Merger
Consideration for the class of Company Capital Stock represented by such
Company Stock Certificate multiplied by the number of shares represented by
such Company Stock Certificate, and the Company Stock Certificate so
surrendered shall be canceled.  Until
surrendered as contemplated by this Section 1.13, each Company Stock
Certificate shall be deemed, from and after the Effective Time, to represent
only the right to receive upon such surrender the Applicable Per Share Merger
Consideration applicable thereto.  If any
Company Stock Certificate shall have been lost, stolen or destroyed, Parent
may, in its discretion and as a condition precedent to the payment of the
applicable portion of the Merger Consideration, require the owner of such lost,
stolen or destroyed Company Stock Certificate to provide an appropriate
affidavit and to deliver a bond (in such sum as Parent may reasonably direct)
as indemnity against any claim that may be made against Parent or the Surviving
Corporation with respect to such Company Stock Certificate.


 


1.14      Withholding
Rights.  Parent shall be entitled to deduct and
withhold from the consideration payable pursuant to this Agreement to any
Effective Time Holder an amount not in excess of the amount it is required to
deduct and withhold with respect to the payment of such consideration under the
Code or any provision of state, local or foreign Tax or other Legal
Requirement.  To the extent that amounts
are so withheld by or on behalf of Parent, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the Effective
Time Holders in respect of which such deduction and withholding was made.


 


1.15      Dissenting
Shares.


 


(a)               Notwithstanding any other provision of
this Agreement to the contrary, shares of stock that are outstanding
immediately prior to the Effective Time and that are held by stockholders of
the Company who shall have not voted in favor of the Merger or consented
thereto in writing and who shall have properly demanded appraisal for such
shares in accordance with Section 262 of the DGCL (collectively, the “Dissenting Shares”) shall not be
converted into or represent the right to receive a portion of the Merger
Consideration.  Such stockholders instead
shall be entitled to receive payment from the Company of the appraised value of
such shares of Company Common Stock held by them in accordance with the
provisions of Section 262 of the DGCL.


 


(b)               Notwithstanding the provisions of Section 1.15(a),
if any holder of Dissenting Shares shall effectively withdraw or lose (through
failure to perfect or otherwise) his or her appraisal rights, then, as of the
later of the Effective Time and the occurrence of such event, such holder’s
shares of Company Capital Stock shall automatically be converted into and
represent only the right to receive the consideration for Company Capital Stock
to which such stockholder would otherwise be entitled under Section 1.10,
without interest thereon, upon surrender of the certificate representing such
shares.


 


12

















 


(c)               Notwithstanding the foregoing, to the
extent that Parent, the Surviving Corporation or the Company (i) is
required by applicable Legal Requirements to make any per share payment or
payments in respect of Dissenting Shares in excess of the Applicable Per Share
Merger Consideration that otherwise would have been payable in respect of such
share under this Agreement; or (ii) reasonably incurs any other costs or
expenses (including specifically, but without limitation, reasonable attorneys’
fees, costs and expenses in connection with any Legal Proceeding commenced by a
holder of Dissenting Shares) in respect of any Dissenting Shares (together, the
“Dissenting Share Payments”), Parent
shall be entitled to recover under the terms of Section 9 hereof the
amount of such Dissenting Share Payments.


 


1.16      Further
Action.  If, at any time after the Effective Time, any
further action is determined by Parent to be necessary or desirable to carry
out the purposes of this Agreement or to vest the Surviving Corporation or
Parent with full right, title and possession of and to all rights and property
of Merger Sub and the Company, the officers and directors of the Surviving
Corporation and Parent shall be fully authorized (in the name of Merger Sub, in
the name of the Company and otherwise) to take such action.


 


SECTION 2.  REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PRINCIPAL
STOCKHOLDERS.


 


Subject to the
limitations contained in this Agreement, the Company and the Principal
Stockholders hereby represent and warrant to Parent and Merger Sub that the
statements contained in this Section 2 are true and correct, except as
expressly set forth on the Disclosure Schedule attached hereto (the “Disclosure Schedule”).  The Disclosure Schedule shall be arranged in
numbered sections corresponding to the sections contained in this Section 2
and any information disclosed therein under any section of the Disclosure
Schedule shall be deemed disclosed and incorporated into any other section of
the Disclosure Schedule as and to the extent that it is reasonably apparent on
the face of the disclosure contained therein that such deemed disclosure and
incorporation would be appropriate.


 


2.1          Existence
and Power.  The Company is a corporation duly organized,
validly existing and in good standing under the Legal Requirements of its
jurisdiction of incorporation.  The
Company 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 such jurisdictions where the failure to be so qualified or
licensed or in good standing would not reasonably be expected to have a
Material Adverse Effect.  The Company has
heretofore delivered to Parent true and complete copies of the Company Charter,
its bylaws and its other organizational documents as currently in effect.


 


2.2          Corporate
Authorization.


 


(a)               The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
Transactions are within the Company’s corporate powers and, except for the
required approval of the Company’s stockholders in connection with the
consummation of the Merger, have been duly authorized by all necessary
corporate action on the part of the Company. 
This Agreement constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its 


 


13

















 


terms, subject to
bankruptcy, reorganization, insolvency and other similar laws affecting the
enforcement of creditors’ rights in general and to general principles of equity
(regardless of whether considered in a proceeding in equity or an action at
law).


 


(b)               At a meeting duly called and held, the
Company’s Board of Directors has unanimously determined that this Agreement and
the Transactions are fair to and in the best interests of the stockholders,
unanimously approved and adopted this Agreement and the Transactions and
unanimously resolved to recommend approval and adoption of this Agreement by
its stockholders.  The only votes or
consents required to approve this Agreement by the Company’s stockholders under
the DGCL and the Company Charter are set forth on Section 2.2
of the Disclosure Schedule (the “Requisite
Stockholder Vote”).


 


2.3          Subsidiaries.


 


(a)               Except for the Subsidiaries of the
Company identified in Section 2.3 of the
Disclosure Schedule, the Company does not own, directly or
indirectly or through nominees, any capital stock of or any other equity
interest in, directly or indirectly, any other Person or any Subsidiary, and
the Company is not and has not otherwise been, directly or indirectly, a party
to, member of or participant in any partnership, joint venture or similar
business entity.  The Company is a
holding company formed for the purpose of holding all of the issued and
outstanding shares of the capital stock of Healthvision Solutions, Inc.
and the Company has no other assets (except for any rights incident to holding
such capital stock that are granted to the Company by any governance documents
of Healthvision Solutions, Inc.). 
Each Subsidiary of the Company is duly organized, validly existing and
in good standing under the Legal Requirements of its jurisdiction of formation.   Each Subsidiary of the Company is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which the conduct of its business or the
ownership, leasing, holding or use of its properties makes such qualification
necessary, except such jurisdictions where the failure to be so qualified or
licensed or in good standing would not reasonably be expected to have a
Material Adverse Effect.  The Company has
made available a true and correct copy of each such Subsidiary’s certificate of
incorporation and bylaws (or other comparable or applicable organizational
documents), each as amended to date and in full force and effect on the date
hereof, to Parent and no amendments thereto are pending.


 


(b)               Except as set forth in Section 2.3 of the Disclosure Schedule, all of the
outstanding capital stock of, equity interest or other ownership interests in,
each Subsidiary of the Company is owned by the Company, directly or indirectly,
free and clear of any Lien.  All of the
issued and outstanding shares of capital stock and equity interest of each of
the Subsidiaries of the Company have been duly authorized and are validly
issued, fully paid and nonassessable. 
There are no outstanding (i) securities of the Company or any of
its Subsidiaries convertible into or exchangeable for shares of capital stock
or other voting securities or ownership interests in any other Subsidiary or (ii) options
or other rights to acquire from the Company or any of its Subsidiaries, or
obligation on the part of the Company or any of its Subsidiaries to issue, any
capital stock, voting securities or other ownership interests in, or any
securities convertible into or exchangeable for any capital stock, voting
securities or ownership interests in, any of the Company’s Subsidiaries (the
items in clauses (i) and (ii) being referred to collectively as the 


 


14

















 


“Subsidiary Securities”).  There are no outstanding obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any outstanding Subsidiary Securities.


 


2.4          Capitalization.


 


(a)               The authorized capital stock of the
Company consists of (i) 30,000,000 shares of Company Common Stock, of
which, as of the date hereof, 19,721,199 shares are issued and outstanding and (ii) 3,000,000
shares of Company Preferred Stock, all of which have been designated Series A
Preferred Stock and of which, as of the date hereof, 2,282,000 shares are
issued and outstanding.  All outstanding
shares of Company Capital Stock (x) are duly authorized, validly issued,
fully paid and non-assessable and are not subject to preemptive rights created
by statute, the Company Charter or bylaws or any Contract to which the Company
is a party or by which it is bound, and (y) have been offered, sold and
delivered by the Company in compliance in all respects with all applicable
Legal Requirements.  All shares of
capital stock of the Company are held of record in the amounts and by the Persons
set forth on Section 2.4 of the Disclosure Schedule.


 


(b)               Except for the Company Option Plan,
neither the Company nor any of its Subsidiaries has ever adopted, sponsored or
maintained any stock option plan or any other plan or agreement providing for
equity compensation to any Person.  The
Company Option Plan has been duly authorized, approved and adopted by the
Company’s Board of Directors and its stockholders and is in full force and
effect.  As of the date hereof, the
Company has reserved a total of 600,000  shares of Company
Common Stock for issuance under the Company Option Plan, of which, as of the
date hereof: (i) 196,708  shares are
issuable upon the exercise of outstanding, unexercised Company Options, (ii) 403,292
shares are available for grant but have not yet been granted pursuant to the
Company Option Plan, and (iii) zero shares have been issued and are
outstanding pursuant to the prior exercise of stock options or other stock
rights granted pursuant to the Company Option Plan.   All outstanding Company Options have been
offered, issued and delivered by the Company in compliance in all respects with
all applicable Legal Requirements and with the terms and conditions of the
Company Option Plan.


 


(c)               Except for the Payout Options identified
and set forth on Section 2.4 of the Disclosure Schedule,
as of the date hereof, there are no options, warrants, calls, rights,
convertible securities, commitments or agreements of any character, written or
oral, to which the Company or any of its Subsidiaries is a party, or by which
the Company or any of its Subsidiaries is bound, obligating the Company or any
of its Subsidiaries to issue, deliver, sell, increase, decrease, repurchase or
redeem, or cause to be issued, delivered, sold, increased, decreased,
repurchased or redeemed, any Company Capital Stock or equity interest of any
Subsidiary of the Company, or obligating the Company or any of its Subsidiaries
to grant, extend, accelerate the vesting of, change the price of, otherwise
amend or enter into any such option, warrant, call, right, commitment or
agreement.  There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or other
similar rights with respect to the Company or any of its Subsidiaries.


 


(d)               Except as set forth in Section 2.4 of the Disclosure Schedule, (i) there
are no voting trusts, proxies, or other agreements or understandings with
respect to the voting stock of the Company or any of its Subsidiaries to which
the Company or any of its Subsidiaries 


 


15

















 


is a party, by
which the Company or any of its Subsidiaries is bound, or of which the Company
has Knowledge, and (ii) there are no agreements or understandings to which
the Company or any of its Subsidiaries is a party, by which the Company or any
of its Subsidiaries is bound, or of which the Company has Knowledge relating to
the registration, sale or transfer (including agreements relating to rights of
first refusal, “co-sale” rights, “drag-along” rights or registration rights) of
any Company Capital Stock, capital stock or equity interest of the Company’s
Subsidiaries or any other investor rights, including, without limitation,
rights of participation (i.e., pre-emptive rights), co-sale, voting, first
refusal, board observation, visitation or information or operational covenants
(the items described in clauses (i) and (ii) being, collectively, the
“Rights Agreements”).  On or prior to the Effective Time, all Rights
Agreements shall have been terminated and of no further force or effect.


 


2.5          Governmental
Authorization.  Except as set forth on Section 2.5
of the Disclosure Schedule, the execution, delivery and performance
by the Company of this Agreement and each of the Transaction Documents to which
the Company is a party require no action by or in respect of, or filing with,
any Governmental Body, other than (a) the filing of the Certificate of
Merger with the secretary of state of Delaware and appropriate documents with
the relevant authorities of other states and countries in which the Company or
its Subsidiaries do business; and (b) compliance with any applicable
requirements of the Securities Act, the Exchange Act, and any other applicable
U.S. state or federal securities laws or any laws of Canada, the United Kingdom
or the People’s Republic of China.


 


2.6          Non-Contravention. 
The execution, delivery and performance by the Company of this Agreement
and the consummation of the Transactions do not and will not (a) contravene,
conflict with, or result in any violation or breach of any provision of the
Company Charter or bylaws of the Company, (b) assuming compliance with the
matters referred to in Section 2.5, contravene, conflict with or result in
a violation or breach of any provision of any Legal Requirement, (c) except
as set forth on Section 2.6 of the Disclosure Schedule
require any consent or other action by any Person under, give rise to any right
of early termination, constitute a default, or an event that, with or without
notice or lapse of time or both, would constitute a default, under, any
provision of any Contract or other instrument binding upon the Company or any
of its Subsidiaries or any license, franchise, permit, certificate, approval or
other similar authorization affecting, or relating in any way to, the assets or
business of the Company and its Subsidiaries or (d) result in the creation
or imposition of any Lien on any asset of the Company or any of its
Subsidiaries; except as set forth in clause (c), where the violation, conflict,
or default, or failure to obtain a consent would not reasonably be expected to
have a Material Adverse Effect.


 


2.7          Financial
Statements.  The Company has furnished Parent with true,
accurate and complete copies of (a) the unaudited consolidated balance
sheet of the Company and its Subsidiaries as of November 30, 2009 (the “Most Recent Balance Sheet”) and the
related statements of operations and retained earnings for the 11-month period
ended on the date of the Most Recent Balance Sheet (collectively, the “Interim Financial Statements”); and (b) the
audited consolidated balance sheets of the Company and its Subsidiaries as of December 31,
2008 and December 31, 2007, and the related audited statements of
operations and retained earnings and cash flows for the years then ended, together
with the notes thereto
(collectively, the “Audited Financial Statements”
and together with the Interim Financial Statements, the 


 


16

















 


“Financial Statements”).  The Financial Statements have been prepared
in accordance with the Accounting Convention consistently followed throughout
the periods indicated, except for the absence of footnotes in the case of the
Interim Financial Statements.  The
Financial Statements present fairly the financial position of the Company and
its Subsidiaries as of their respective dates and the statements of operations
and cash flows for the respective periods then ended, subject, in the case of
the unaudited interim financial statements, to normal year-end adjustments.


 


2.8          No
Undisclosed Liabilities.  There are no material
Liabilities of the Company or its Subsidiaries of any kind whatsoever,
including any Liability for Taxes, and to the Knowledge of the Company there is
no existing condition, situation or set of circumstances which could reasonably
be expected to result in such a Liability, except (a) as disclosed on the
face of the Most Recent Balance Sheet (rather than any notes thereto); (b) for
Liabilities incurred in the ordinary course of business since the Most Recent
Balance Sheet; and (c) as set forth on Section 2.8
of the Disclosure Schedule. 
Without limiting the generality of the foregoing, the Company Group has
no Liabilities relating to Rogue Wave Software, Inc., a Delaware
corporation (formerly known as Quovadx, Inc.), its Subsidiaries or their
respective operations, other than the Liabilities of (i) Healthvision
Solutions, Inc. (then known as Quovadx, Inc., a Georgia corporation)
and its Subsidiaries, or (ii) those Liabilities expressly assumed by
Healthvision Solutions, Inc. (then known as Quovadx, Inc., a Georgia
corporation) and listed on Exhibit B of the ISD Contribution
Agreement.  As used herein, the “ISD Contribution Agreement”
shall mean that certain Contribution and Share Transfer Agreement dated July 18,
2007, by and among Quovadx, Inc., a Delaware corporation (n/k/a Rogue Wave
Software, Inc.), Healthvision Solutions, Inc. (f/k/a Quovadx, Inc.,
a Georgia corporation) and the Company.


 


2.9          Absence
of Certain Changes.
Except as set forth on Section 2.9 of the
Disclosure Schedule, since the date of the Most Recent Balance Sheet
through the date of this Agreement, the Company and its Subsidiaries have
conducted their business in the ordinary course consistent with past practices
and neither the Company nor any Subsidiary of the Company has:


 


(a)               suffered any material loss, or material
interruption in use, of any asset or property (whether or not covered by
insurance), on account of fire, flood, riot, strike or other hazard;


 


(b)               amended or changed the Company’s Charter
or bylaws or any Subsidiary’s comparable organizational documents;


 


(c)               changed its accounting methods,
principles or practices;


 


(d)               declared, set aside or paid any dividend
or other distribution with respect to any shares of capital stock or other
ownership interests or increased, decreased, repurchased or redeemed or
committed to increase, decrease, repurchase or redeem any shares of capital
stock or other ownership interests other than in the ordinary course of
business consistent with past practices;


 


17

















 


(e)               other than in the ordinary course of
business consistent with past practice, changed the employment terms of, paid
any bonus to, increased any salary or wages for or entered into any employment
Contract with, any Person, or instituted any employee welfare, bonus, stock
option, profit-sharing, retirement or similar plan or arrangement with, any of
its directors, officers or employees;


 


(f)                merged into, consolidated with, or sold a
substantial part of its assets to any other Person, or permitted any other
Person to be merged or consolidated with it;


 


(g)               entered into any Contract, lease or
license (or series of related Contracts, leases and licenses) either (i) where
such Contract, lease or license (or series of related Contracts, leases and
licenses) to which the Company or any of its Subsidiaries is or will be a
party, over the course of the first full year of such Contract, lease or
license, would reasonably be likely to result in at least $300,000 in revenue
to the Company or any of its Subsidiaries resulting from license fees,
maintenance fees, ongoing support services or otherwise, or (ii) any such
Contract, lease or license entered into outside the ordinary course of
business;


 


(h)               accelerated, terminated, modified or
cancelled any Contract with the Persons described in Section 2.25
of the Disclosure Schedule (other than such Contracts that expired
or were not renewed by the customer in the ordinary course of business);


 


(i)                made any capital investment in, any loan
to, or any acquisition of the securities or assets of, any other Person (or
series of related capital investments, loans and acquisitions) either involving
more than $25,000 or outside the ordinary course of business;


 


(j)                issued any note, bond or other debt
security or created, incurred, assumed or guaranteed any indebtedness either
involving more than $25,000 in any individual case or $100,000 in the
aggregate;


 


(k)               materially delayed or postponed the
payment of accounts payable and other Liabilities outside the ordinary course
of business;


 


(l)                cancelled, compromised, waived, or
released any right or claim (or series of related rights and claims) either
involving more than $25,000 or outside the ordinary course of business;


 


(m)              transferred, assigned or granted any
license or sublicense of any rights under or with respect to any Intellectual
Property other than (1) in the ordinary course of business; or (2) for
non-exclusive license grants to object or executable code only and granted in
the ordinary course of business;


 


(n)               entered into any employment Contract (for
avoidance of doubt, specifically excluding any ordinary course assignment of
inventions agreements, non-disclosure agreements, offer letters for “at-will”
employment and similar ordinary course employment arrangements) or collective
bargaining agreement, written or oral; or modified the terms of any existing
such Contract or collective bargaining agreement;


 


18

















 


(o)               issued, sold or otherwise disposed of any
of its capital stock or equity interests, or granted any options, warrants or
other rights to purchase or obtain (including upon conversion, exchange or
exercise) any of its capital stock or equity interests;


 


(p)               made any loan to, or entered into any
other transaction with, any of its directors, officers and executive officers
(except for expense reimbursements and similar arrangements in the ordinary
course of business);


 


(q)               imposed any Liens upon any of its assets,
tangible or intangible;


 


(r)               took any step to enter liquidation,
close, cancel, suspend or deregister, or presented a petition for winding up
the Company or any of its Subsidiaries;


 


(s)               destroyed any of the Company Group’s
material Records (except in accordance with the document retention policies in
effect on the date of the Most Recent Balance Sheet Date); or


 


(t)                suffered any adverse change with respect
to its business or financial condition which has had, or would reasonably be
expected to have, a Material Adverse Effect.


 


2.10        Properties.


 


(a)               Neither the Company nor any of its
Subsidiaries owns any real property.  The
Company and its Subsidiaries lease or sublease all real property used in their
business as now conducted and proposed to be conducted.  Section 2.10(a) of
the Disclosure Schedule describes all real property leased or
subleased by the Company or any of its Subsidiaries (the “Real
Property”), specifying the name of the lessor or sublessor, the
lease term and basic annual rent.  The
Company has delivered to Parent a true and complete copy of each lease or
sublease relating to the Real Property, each of which is disclosed on Section 2.10(a) of the Disclosure Schedule (the “Leases”).  With respect to each of the Leases: (i) such
Lease is legal, valid, binding, enforceable and in full force and effect and,
if applicable, has been duly filed with the competent Governmental Body in
accordance with Legal Requirements; (ii) to the Company’s Knowledge, the
Company’s or its Subsidiary’s possession and quiet enjoyment of the Real
Property has not been disturbed and there are no disputes with respect to such
Lease; (iii) the Company and its Subsidiaries are not and, to the Company’s
Knowledge, no other party to such Lease is in material breach or material
default under such Lease and, to the Company’s Knowledge, no event has occurred
or circumstance exists which, with the delivery of notice, the passage of time
or both, would constitute such a material breach or material default, or permit
the termination, modification or acceleration of rent under such Lease; (iv) neither
the Company nor any of its Subsidiaries has subleased, licensed or otherwise
granted any Person the right to use or occupy the Real Property subject to such
Lease or any portion thereof; and (v) there is no pending or, to the
Knowledge of the Company, threatened condemnation, foreclosure or other similar
exercise of mortgage right, or eminent domain proceeding or other litigation
affecting the Real Property subject to such Lease.


 


(b)               Section 2.10(b) of
the Disclosure Schedule describes all personal property leased or subleased by the Company or
its Subsidiaries, including but not limited to machinery, equipment, furniture,
vehicles, and other trade fixtures and fixed assets, and any 


 


19

















 


Liens thereon,
specifying the name of the lessor or sublessor, the lease term and basic annual
rent.  All leases of personal property
are in good standing and are valid, binding and enforceable in accordance with
their respective terms, and there does not exist under any such lease any
material breach by the Company or any of its Subsidiaries or, to the Knowledge
of the Company, any event or occurrence that with notice or lapse of time or
both, would constitute a material default.


 


2.11        Title
to Assets.  Except as set forth in Section 2.11
of the Disclosure Schedule, the Company and its Subsidiaries have
good and marketable title to the tangible fixed assets, personal property and
equipment owned by them and shown as owned on the Most Recent Balance Sheet or
acquired after the date hereof through the Closing Date, free and clear of all
Liens, except for any such tangible fixed assets, personal property or
equipment disposed of in the ordinary course of business since the date of the
Most Recent Balance Sheet.


 


2.12        Taxes. 
Except as set forth on Section 2.12
of the Disclosure Schedule:


 


(a)               Each of the Company and its Subsidiaries
has in accordance with all applicable Legal Requirements timely filed all Tax
Returns that were required to be filed by it and all such Tax Returns were
correct and complete in all material respects. 
All Taxes owed by the Company or any of its Subsidiaries (whether or not
shown or required to be shown on Tax Returns) have been timely paid.  There are no Liens for Taxes upon the assets
of the Company or any of its Subsidiaries. 
No written claim has ever been made by any Governmental Body in a
jurisdiction where the Company or any of its Subsidiaries does not file Tax
Returns that the Company or any of its Subsidiaries is or may be subject to
taxation by that jurisdiction.  Section 2.12 of the Disclosure Schedule contains a list
of all jurisdictions (whether foreign or domestic) to which income or sales and
use Tax is properly payable by the Company or any of its Subsidiaries.


 


(b)               Neither the Company nor any of its
Subsidiaries is currently the beneficiary of any extension of time within which
to file any Tax Return, and neither the Company nor any of its Subsidiaries has
agreed to, nor been requested to agree to, any extension or waiver of the
statute of limitations applicable to any of its Tax Returns which extension or
waiver is currently in effect.


 


(c)               Neither the Company nor any of its
Subsidiaries is a party to any Tax allocation, sharing or indemnification
agreement.


 


(d)               None of the Tax Returns filed by the
Company or its Subsidiaries or Taxes payable by the Company or its Subsidiaries
has been the subject of an audit, action, suit, proceeding, claim, examination,
deficiency or assessment by any Taxing Authority, and no such audit, action,
suit, proceeding, claim, examination, deficiency or assessment is currently
pending, or, to the Knowledge of the Company, threatened.


 


(e)               Each of the Company and its Subsidiaries
has withheld and collected all Taxes, including, without limitation,
registration for, withholding, collection and remittance of goods and services
Taxes under the Excise Tax Act (Canada), the Taxation Act (Quebec) and 


 


20

















 


“Value Added Tax”
in any jurisdiction, required to have been withheld and collected and has paid
over to the proper Taxing Authority all such Taxes in a timely manner.


 


(f)                Neither the Company nor its Subsidiaries
has requested any extension of time within which to file any material Tax
Return, which Tax Return has not since been filed.


 


(g)               Since January 1, 2008, neither the
Company nor its Subsidiaries has made any change in accounting methods,
received a ruling from any taxing authority, or signed an agreement with respect
thereto with respect to any Tax year.


 


(h)               Neither the Company nor its Subsidiaries,
is a party to any Contract, arrangement, or plan that has resulted or could
result, separately or in the aggregate, in the payment of any “excess parachute
payment” within the meaning of Section 280G of the Code (or any
corresponding provision of state, local or foreign Tax law).  The Company has not been a United States real
property holding corporation within the meaning of Section 897(c)(2) of
the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of
the Code.


 


(i)                Neither the Company nor its Subsidiaries,
since January 1, 2008, (i) has been a member of an Affiliated Group
filing a consolidated return (other than a group the common parent of which was
the Company and which included only the Subsidiaries of the Company) or a
combined, consolidated, unitary or other affiliated group Tax Return for state,
local or foreign Tax purposes or (ii) has any Liability for Taxes of any
Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6
of the Treasury Regulations (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract, or otherwise.


 


(j)                Schedule
2.12 of the Disclosure Schedule lists all income Tax Returns filed with respect to
the Company or its Subsidiaries for taxable periods ended on or after January 1,
2006.  The Company has provided Parent
with complete and correct copies of all income Tax Returns, examination reports
and statements of deficiencies assessed against or agreed to by the Company or
its Subsidiaries since January 1, 2007.


 


(k)               Neither the Company nor any of its
Subsidiaries is or has been, since January 1, 2008, a party to any “reportable
transaction,” as defined in Section 6707A(c)(1) of the Code and
Treasury Regulation §1.6011-4(b). 
Neither the Company nor its Subsidiaries has distributed the stock of
another Person, or has had its stock distributed by another person, in a
transaction that was purported or intended to be governed in whole or in part
by Section 355 or 361 of the Code.


 


(l)                The unpaid Taxes of the Company and its
Subsidiaries (i) did not exceed the reserve for actual Taxes (as opposed
to any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) set forth on the Financial Statements, and (ii) will
not, as of the Closing Date, exceed the reserve for actual Taxes (as opposed to
any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) reflected on the Final Statement for Working
Capital (taking into account any Taxes imposed with respect to the operations
of the Company and its Subsidiaries through and including the Closing Date and
any Taxes resulting from the Transactions). 
Neither the Company nor its 


 


21

















 


Subsidiaries will
incur any Liability for Taxes from the date of the Most Recent Balance Sheet
through the Closing Date other than in the ordinary course of business and
consistent with reasonable past practice, and other than as a result of the
Transactions.


 


(m)              Neither the Company nor any of its
Subsidiaries will be required to include any item of income in, or exclude any
item of deduction from, taxable income for any taxable period (or portion
thereof) ending after the Closing Date as a result of any;


 


(i)            change
in method of accounting for a taxable period ending on or prior to the Closing
Date;


 


(ii)           “closing
agreement” as described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or non-U.S. income Tax law) executed on or
prior to the Closing Date;


 


(iii)         intercompany
transaction or excess loss account described in Treasury Regulations under Section 1502
of the Code (or any corresponding or similar provision of state, local or
foreign income Tax law);


 


(iv)          installment
sale or open transaction disposition made on or prior to the Closing Date; or


 


(v)            prepaid
amount received on or prior to the Closing Date, except for deferred revenue.


 


(n)               None of the assets of the Company or
any of its Subsidiaries (i) is property that such entity is required to
treat as being owned by another Person pursuant to the “safe harbor lease”
provisions of former Section 168(f)(8) of the Code, as in effect
prior to the amendment by the Tax Equity and Fiscal Responsibility Act of 1982,
(ii) is “tax-exempt use property” within the meanings of Section 168(h) of
the Code, or (iii) is “tax-exempt bond financed property” within the
meaning of Section 168(g) of the Code.  Neither the Company
nor its Subsidiaries has ever entered into a gain recognition agreement under Section 367
of the Code.


 


(o)               The Company does not have outstanding any
capital stock that was issued in connection with the performance of services
(as defined in Section 83 of the Code), except for (i) stock
that is fully vested, and (ii) stock for which the holder made a valid
election under Section 83(b) of the Code.


 


2.13        Litigation. 
Except as disclosed in Section 2.13 of the
Disclosure Schedule, there is no Legal Proceeding pending, or to the
Company’s Knowledge there are no material Legal Proceedings threatened, against
or affecting the Company or any of its Subsidiaries, or the Transactions,
before any Governmental Body.  None of
the Company or its Subsidiaries is subject to any outstanding injunction,
judgment, order, decree, ruling or charge. 
None of the Legal Proceedings set forth in Section 2.13
of the Disclosure Schedule could have a Material Adverse Effect.


 


22
















 


2.14        Material Contracts.


 


(a)               Section 2.14 of the
Disclosure Schedule
specifically identifies by subsection each Contract to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is otherwise
bound that constitutes a Material Contract, and any amendments thereto. For
purposes of this Agreement, each of the following shall be deemed to constitute
a “Material Contract”:


 


(i)            each executory Contract for (A) the customers
listed on Section 2.25 of the Disclosure Schedule,
(B) the five largest resellers of the Company Software, by revenue
attributable to such resellers for the Company Group’s fiscal year ended December 31,
2008 and for the period beginning on January 1, 2009 through September 30,
2009, and (C) the third party Software providers for which the Company
Group resells for the period beginning on January 1, 2009 through September 30,
2009;


 


(ii)           any partnership, joint venture or other similar
Contract;


 


(iii)         any Contract relating to Indebtedness;


 


(iv)          any Contract limiting the freedom of the Company or
any Subsidiary to engage or participate, or compete with any other Person, in
any line of business, market or geographic area;


 


(v)            any Contract pursuant to which the Company or any
Subsidiary is a lessor or lessee of any real property or of any machinery,
equipment, motor vehicles, office furniture, fixtures or other personal
property that by its terms requires the payment of in excess of $100,000 per
annum or under which it has imposed a Lien on all, or any portion of, its
assets;


 


(vi)          any profit sharing, stock option, stock purchase,
stock appreciation, deferred compensation, severance or other plan for the
benefit of its current or former directors, executive officers or employees;


 


(vii)         any collective bargaining Contract;


 


(viii)        any Contract for the employment of any individual on a
full-time, part-time, consulting or other basis (excluding any ordinary course
assignment of inventions agreements, non-disclosure agreements, offer letters
for “at-will” employment and similar employment arrangements) or providing
severance benefits;


 


(ix)          any Contract to indemnify, hold harmless or defend any
Person, other than (A) Contracts related to the license of Software, and (B) Contracts
where the obligation of any member of the Company Group to indemnify, hold
harmless or defend any Person under the Contract does not exceed $100,000;


 


(x)           any Contract under which it has advanced or loaned any
amount to any of its directors and executive officers (except for expense
reimbursements and similar arrangements in the ordinary course of business);


 


23

















 


(xi)          any Contract between the Company or any of its
Subsidiaries and any of their Affiliates; and


 


(xii)         any other Contract (x) under which the
consequences of a default or termination could have a Material Adverse Effect
on a member of the Company Group, or (y) not made in the ordinary course
of business that is material to the Business.


 


(b)               The Company has made available to Parent a correct and
complete copy of each written Contract (as amended to date) listed in Section 2.14 of the Disclosure Schedule and a written
summary of setting forth the terms and conditions of each oral agreement
referred to in Section 2.14 of the Disclosure Schedule.  Each Material Contract is a legal, valid,
enforceable and binding agreement of the Company or its Subsidiary and is in
full force and effect, and the Company and its Subsidiaries are not, and to the
Company’s Knowledge, neither is any other party thereto, in default in any
material respect under the terms of any such Material Contract, nor, to the
Company’s Knowledge, has any event or circumstance occurred that, with notice
or lapse of time or both, would constitute an event of default thereunder.


 


2.15        Intellectual Property.


 


(a)               Section 2.15(a) of the
Disclosure Schedule
lists (i) a correct and complete list of all material Patents, all
material Trademarks, and all material registered Copyrights owned by or on
behalf of the Company and its Subsidiaries or purported to be owned by the
Company and its Subsidiaries (collectively referred to herein as “Owned Intellectual Property”), and (ii) all
Contracts relating to any Intellectual Property pursuant to which any
Intellectual Property is or has been licensed, sold, assigned or otherwise
conveyed or provided to the Company (other than non-exclusive licenses to
third-party Software that is not incorporated into, or used in the development,
manufacturing, testing, distribution, maintenance, or support of, any Company
Product) (A) necessary for the use and operation of any Company Product,
or (B) that are otherwise material to the Business.  All Owned Intellectual Property invented or
otherwise created by any past or current employees or consultants of the Company
or any of its Subsidiaries in the course of their services to the Company or
any of its Subsidiaries or relating to the Business has been assigned to the
Company by operation of law or otherwise pursuant to valid and enforceable
written assignments.  The Company has
made available true and complete copies of any such written assignments with
its current employees who have contributed to any Owned Intellectual Property.


 


(b)           Except as disclosed on Section 2.15(b) of
the Disclosure Schedule, each item of the Company Intellectual
Property is either: (i) owned solely by the Company or its Affiliates free
and clear of any Liens; or (ii) rightfully used and authorized for use by
the Company, its Subsidiaries and Affiliates and its successors pursuant to a valid
and enforceable written license (without the making of any payment to others or
the obligation to grant rights to others in exchange) as are necessary to the
conduct of the Business, and the consummation of the Transactions (A) will
not alter or impair any such rights to the extent such Company Intellectual
Property is incorporated into, or used in the development, manufacturing,
testing, distribution, maintenance, or support of, any Company Product, and (B) will
not materially alter or impair any such rights with respect to any other
Company Intellectual Property.  The
Company is not in 


 


24

















 


material violation of any license, sublicense or other
agreement to which the Company is a party or otherwise is bound relating to any
of the Company Intellectual Property.


 


(c)               To the Knowledge of the Company, the use of the
Company Intellectual Property and the operation of the Business as currently
conducted do not infringe any other Person’s Intellectual Property rights.  No claims (i) challenging the validity,
enforceability, effectiveness or ownership by the Company or its Subsidiaries
of any of the Owned Intellectual Property or (ii) to the effect that the
use, reproduction, modification, manufacture, distribution, licensing,
sublicensing, sale of the Company Products, or any other exercise of rights in
any of the Company Intellectual Property by the Company or its Affiliates,
infringes or will infringe on any Intellectual Property or other proprietary or
personal right of any Person have been asserted against the Company or its
Affiliates in writing or, to the Knowledge of the Company, are threatened by
any Person.  There are no legal or
governmental proceedings, including interference, re-examination, reissue, opposition,
nullity, or cancellation proceedings pending that relate to any of the material
Owned Intellectual Property, other than review of pending Patent applications,
and the Company has no Knowledge of any information indicating that such
proceedings are threatened or contemplated by any Governmental Body or any
other Person.


 


(d)           To the Company’s Knowledge, all issued patents and
trademarks set forth in Section 2.15(a) of
the Disclosure Schedule remain in effect, are enforceable and
subsisting and are valid and all maintenance fees due with respect to the
issued patents have been paid.


 


(e)           To the Company’s Knowledge, there is no use of any
Intellectual Property owned by or licensed to the Company that has been or is
being made, except by the Company or by a Person duly licensed by it to use the
same.  To the Company’s Knowledge, there
is no infringement or other unauthorized use by others of any Intellectual
Property owned by or licensed by or to the Company.


 


(f)                No (i) government funding, or (ii) facilities
of a university, college or other educational institution or research center
was used in the development of the Owned Intellectual Property.  To the Company’s Knowledge, no current or
former employee, consultant, or independent contractor of the Company who was
involved in or contributed to the creation or development of any Owned
Intellectual Property has performed services for any government, university,
college or other educational institution or research center during a period of
time during which such employee, consultant or independent contractor was also
performing services for the Company.


 


(g)               The Company has taken commercially reasonable measures
to protect the proprietary nature of the material Owned Intellectual Property,
including (as to any material Trade Secrets included in the Owned Intellectual
Property) by taking commercially reasonable measures to maintain the
confidentiality thereof.


 


(h)               Except as set forth in Section 2.15(h) of
the Disclosure Schedule, the Owned Intellectual Property does not
include any Publicly Available Software and the Company has not used any
Publicly Available Software in whole or in part in the development of any part
of the Owned Intellectual Property in a manner that may subject the Owned
Intellectual Property in whole or in part, to all or part of the license
obligations of any Publicly Available Software.


 


25

















 


“Publicly
Available Software” means any Software that contains, or is
derived in any manner (in whole or in part) from any Software that is
distributed as free Software, open source Software (e.g.
Linux), or similar licensing and distribution models, and any Software that
requires as a condition of use, modification or distribution of such Software
that such Software or other Software incorporated into, derived from, or
distributed with such Software (i) be disclosed or distributed in source
code form, (ii) be licensed for the purpose of making derivative works, or
(iii) be redistributable at no or minimal charge.  Publicly Available Software includes without
limitation Software licensed or distributed under any of the following licenses
or distribution models similar to any of the following (A) GNU General
Public License (GPL) or Lesser/Library GPL (LGPL), (B) the Artistic
License (e.g. PERL), (C) the Mozilla Public
License, (D) the Netscape Public License, (E) the Sun Community
Source License (SCSL), the Sun Industry Source Licenses (SISL), and (F) the
Apache Server License.  No material
Software of the Company included in the Owned Intellectual Property (the “Company Software”) contains any
Software code that is, in whole or in part, subject to the provisions of any
license to Publicly Available Software that (x) require, or condition the
use or distribution of any Company Software on the disclosure, licensing or
distribution of any source code for any portion of such Company Software or (y) otherwise
impose any limitation, restriction or condition on the right or ability of the
Company or any of the Company’s Subsidiaries to use or distribute any Company
Software.  The Company and its
Subsidiaries have been in full compliance with any terms and conditions set
forth in any license that governs any Publicly Available Software used in any
Company Product.


 


(i)                Except as set forth in Section 2.15(i) of
the Disclosure Schedule, the Company has not provided and is not
obligated to provide, directly or indirectly, the source code for any of the
Software that is included in the Owned Intellectual Property to any other
Person.  With respect to any Company
Software that is licensed in object code format, the Company has not, by
license, transfer, sale, escrow or otherwise, granted any other Person the
express right to reverse engineer, disassemble or decompile any such Company
Software. The Transactions will not cause any source code for any of the
Software that is included in the Company Products to be released pursuant to
the terms of any agreement listed in Section 2.15(i) of
the Disclosure Schedule.


 


(j)                With respect to the Software code components of
Company Products set forth on Section 2.15(j) of
the Disclosure Schedule, as of the Closing Date such code is being
used, packaged and/or delivered as described on Section 2.15(j) of
the Disclosure Schedule.


 


2.16        Insurance Coverage.  Section 2.16 of the Disclosure Schedule contains a
complete list of all insurance policies (including “self-insurance” programs)
currently maintained by the Company or any of its Subsidiaries (collectively,
the “Insurance Policies”).  The Insurance Policies are in full force and
effect, neither the Company nor any of its Subsidiaries is in default in any
material respect under any Insurance Policy (including, without limitation,
with respect to any default related to the payment of premiums), and no claim
for coverage under any Insurance Policy, other than contested claims under the
Company Group’s workers’ compensation policies or subject to any Company
Employee Plans, has been denied during the past two (2) years.  To the Company’s Knowledge, no event has
occurred that, with notice or lapse of time, would constitute a breach or
default, or permit modification, termination or acceleration under any of the
Insurance Policies.  Neither the Company
nor any of its 


 


26

















 


Subsidiaries has received
any written notice of cancellation or intent to cancel with respect to the
Insurance Policies.


 


2.17        Compliance with Legal Requirements.  Except as set
forth in Section 2.17 of the Disclosure Schedule,
the Company and its Subsidiaries have been and are in compliance in all
material respects with all Legal Requirements and Governmental Orders
applicable to them or the Business or by which any property, asset or the
business or operations of the Business is bound or affected.  Except as set forth in Section 2.17
of the Disclosure Schedule, there are no material permits, licenses,
membership privileges, authorizations, consents, approvals, waivers or
franchises to be granted by or obtained from any Governmental Body (“Permits”) that are required for the
Company or its Subsidiaries to operate the Business.


 


2.18        Employee Benefit Plans.  Except for
the plans or arrangements listed on Section 2.18 of the
Disclosure Schedule (hereinafter referred to collectively as the “Company Employee Plans” and
individually as a “Company Employee Plan”),
neither the Company nor one or more members of its Controlled Group directly or
indirectly, maintains, sponsors or has an obligation or liability with respect
to, any “employee benefit plan,” as defined in Section 3(3) of ERISA,
or any other similar plan, however defined, under the Legal Requirements of
Canada or the United Kingdom, including those governed by the Pension Plans Act
(Ontario) or the Supplemental Pension Plans Act (Quebec) (collectively, “Foreign Plans”), or any benefit arrangement that is not an “employee
benefit plan” as defined in Section 3(3) of ERISA or a Foreign Plan,
including, without limitation, any material executive compensation or incentive
plan; any material bonus or severance plan; any material employment contract;
any collective bargaining agreement, union contract, deferred compensation
agreement, stock purchase or other equity plan or arrangement; any educational
assistance arrangement; any plan governed by Section 125 of the Code; or
any other fringe benefit plan or arrangement. 
For the purposes of this Agreement, “Controlled
Group” shall mean the Company and any trade or business, whether
or not incorporated, which is treated together with the Company as a single
employer under Section 4001(b)(1) of ERISA or Sections 414(b), (c), (m) or
(o) of the Code.  Section 2.18 of the Disclosure Schedule lists all
persons currently on continuation coverage under COBRA and any persons
currently in an election period for continuation coverage under COBRA.  With respect to each Company Employee Plan
identified on Section 2.18 of the Disclosure Schedule:


 


(a)               Each Company Employee Plan has been maintained,
operated, and administered in compliance with its terms and any related
documents or agreements and in material compliance with all applicable Legal
Requirements; there are no actions, suits or claims pending (other than routine
claims for benefits) or, to the Knowledge of the Company, threatened against
such Company Employee Plan, the Company or against any fiduciary of such
Company Employee Plan; there is no pending or, to the Knowledge of the Company,
threatened proceeding involving any Company Employee Plan before the IRS, the
United States Department of Labor or any other Governmental Body;


 


(b)               No member of the Controlled Group, Company Employee
Plan, fiduciary of such Company Employee Plan or administrator of such Company
Employee Plan, has taken any action, or failed to take any action, which action
or failure could subject the Company, or any respective employee thereof, to
any Liability for breach of any fiduciary duty, 


 


27

















 


or for any prohibited
transaction (as defined in Section 4975 of the Code), with respect to or
in connection with such Company Employee Plan;


 


(c)               Each Company Employee Plan intended to be qualified
under Section 401(a) of the Code has heretofore been determined by
the IRS to be so qualified and has been so qualified during the period since its
adoption, and each trust created thereunder has heretofore been determined by
the IRS to be exempt from Tax under the provisions of Section 501(a) of
the Code and has been so exempt since its creation; a copy of the most recent
determination letter from the IRS (or an opinion letter issued to the prototype
sponsor of the plan on which the Company is entitled to rely) regarding such
qualified status for each such plan has been made available to the Parent; each
asset held under any qualified plan may be liquidated or terminated without the
imposition of any redemption or surrender charge or comparable liability;


 


(d)               The Controlled Group does not maintain or contribute
and has never maintained or contributed to or otherwise participated in a “defined
benefit plan” within the meaning of Section 3(35) of ERISA or Section 414(j) of
the Code, or a plan that is subject to the requirements of Section 412 of
the Code, nor is or was the Controlled Group a party to a “multiemployer plan”
as described in Section 3(37) of ERISA or Section 414(f) of the
Code;


 


(e)               Each Company Employee Plan does not (i) provide
for non terminable or non alterable benefits for employees, dependents or
retirees or (ii) provide any benefits for any person upon or following
retirement or termination of employment, except as otherwise required by Part 6
of Subtitle B of Title I of ERISA or Section 4980B of the Code or
applicable law (herein collectively referred to as “COBRA”);
and no condition exists that would prevent the Parent from amending or
terminating any Company Employee Plan;


 


(f)                Full and timely payment has been made of all material
amounts which the Controlled Group is required, under applicable law or under
any Company Employee Plan, to have paid as a contribution, including without
limitation forwarding employee salary deferrals or salary reduction
contributions on a timely basis to Company Employee Plans;


 


(g)               The Company has delivered to Parent with respect to
each Company Employee Plan the following documentation relating to the period
beginning on January 1, 2006 and continuing through the date of this
Agreement (i) all written documents comprising the terms of such Company
Employee Plan (including amendments and individual, trust or insurance
agreements relating thereto); (ii) Federal Form 5500 series
(including all schedules thereto), Form 5300 (including enclosures), Form 5310
(including enclosures), Form 5330 or any other documentation filed with
the Internal Revenue Service or the Department of Labor related to each such Company
Employee Plan; (iii) the summary plan description currently in effect and
all material modifications thereto, if any, for each such Company Employee
Plan, and other required communications with participants, such as Summary
Annual Reports; and (iv) written communications to employees to the extent
the substance of any Company Employee Plan described therein differs materially
from the other documentation furnished under this Section 2.18; and


 


(h)               Any and all mergers, plan-to-plan transfers, consolidations,
spin-offs, partial terminations or terminations of Company Employee Plans were
properly completed and 


 


28

















 


in compliance with
applicable Legal Requirements, including the Code and ERISA.  Any and all adoptions of Company Employee
Plans were also properly completed, timely and in compliance with applicable
Legal Requirements, including the Code and ERISA.


 


2.19        Employees.  The Company and its Subsidiaries have been
and are in compliance, in all material respects, with all Legal Requirements
relating to employment practices, including labor, employment, fair employment
practices, workplace safety and health, terms and conditions of employment,
social benefits and wages and hours. 
There have been no charges against any of the Company or its
Subsidiaries of employment discrimination or unfair labor practices.  There are no strikes, slowdowns, stoppages of
work, or any other concerted interference with normal operations existing,
pending or threatened against any of the Company or its Subsidiaries.  Neither the Company nor any of its
Subsidiaries has ever been a party to or bound by any union or collective
bargaining Contract, nor is any such Contract currently in effect or being
negotiated by or on behalf of the Company or any of its Subsidiaries.  There are no grievances, complaints or
charges that have been filed against the Company or any of its Subsidiaries
under any dispute resolution procedure (including any dispute resolution
procedure under any collective bargaining agreement) that could have a Material
Adverse Effect.  Neither the Company nor
any of its Subsidiaries has experienced any labor problem that was or is
material to it.  The Company and its
Subsidiaries are in material compliance with the requirements of the
Immigration Reform Control Act and similar Legal Requirements of any
Governmental Body.  Neither Company nor
any of its Subsidiaries has received a written notice indicating that any
employment policies or practices of the Company are currently being audited or
investigated by any Governmental Body. 
Neither the Company nor any of its Subsidiaries has treated any Person
as an independent contractor who should have been treated as an employee under
Legal Requirements.  The Company and its Subsidiaries
have treated employees as “exempt” or “non-exempt” in accordance with Legal
Requirements.  To the Knowledge of the
Company, no executive or key employee has any present plans to terminate
employment with any of the Company or its Subsidiaries as a result of the
Closing.  Except as set forth on Section 2.19 of the Disclosure Schedule, no employees
of the Company or any of its Subsidiaries are on leave of any kind, including,
without limitation, sick leave, disability leave, maternity leave or any other
work absence.  Section 2.19
of the Disclosure Schedule sets forth with reasonably particularity
the details of any leave taken by such employees.  R. David Tabors and Jesse Feldman, directors
and officers of the Company, have not been employed by the Company or any of
its Subsidiaries (as employment is determined and defined under any Legal
Requirements).


 


2.20        Government Programs.  No
agreements, loans, funding arrangements or assistance programs are outstanding
in favor of the Company or any of its Subsidiaries from any Governmental Body.


 


2.21        Interested Party Transactions.  Except as set
forth on Section 2.21 of the Disclosure Schedule,
neither the Company nor any of its Subsidiaries is a party to any transaction
or agreement with any Affiliate, stockholder, director or executive officer of
the Company.


 


2.22        Environmental Matters.  The Company
and all of its Subsidiaries have complied and are in compliance in all material
respects with all Legal Requirements intended to protect the 


 


29

















 


environment and/or human
health or safety (collectively, “Environmental Laws”).  Neither the Company nor any of its
Subsidiaries has released, handled, generated, used, stored, transported or
disposed of any material, substance or waste which is regulated by
Environmental Laws (“Hazardous Materials”),
except for the use of reasonable amounts of ordinary office and/or
office-cleaning supplies in compliance with Environmental Laws.  The Company has no Knowledge of any environmental
investigation, study, test or analysis, the purpose of which was to discovery,
identify, or otherwise characterize the condition of the soil, groundwater, air
or the presence of Hazardous Materials at any location at which the Business
has been conducted.  Neither the Company
nor any of its Subsidiaries has any Environmental Liabilities that would
reasonably be expected to have a Material Adverse Effect.  As used herein, “Environmental
Liabilities” are any claims, demands, or liabilities under Environmental
Law which (i) arise out of or in any way relate to the operations or
activities of the Company Group, or any real property at any time owned,
operated or leased by the Company Group, whether contingent or fixed, actual or
potential, and (ii) arise from or relate to actions occurring (including
any failure to act) or conditions existing on or before the Closing Date.


 


2.23        Finders’ Fees.  Except as disclosed on Section 2.23 of the Disclosure Schedule, there is no
investment banker, broker, finder or other intermediary that has been retained
by or is authorized to act on behalf of the Company or any of its Subsidiaries
who might be entitled to any fee or commission from Parent, the Company or any
of their respective Affiliates upon consummation of the Transactions.


 


2.24        Software Warranty.  All Company Software is in
conformity with all applicable contractual commitments and all express and
implied warranties.  Copies of all
standard terms and conditions of sale, license, lease or service of Company
Software, including any and all applicable guaranty, warranty and indemnity
provisions are included in Section 2.24 of the
Disclosure Schedule.


 


2.25        Customers and Suppliers.  Section 2.25 of the Disclosure Schedule lists the 50
largest customers of the Company Group by revenue for the Company Group’s
fiscal year ended December 31, 2008 and for the period beginning on January 1,
2009 through September 30, 2009 and sets forth opposite the name of each
such customer and the approximate percentage of consolidated net revenues
attributable to such customer.  To the
Company’s Knowledge, no third party to a Material Contract described in Section 2.14(a)(i)(B) or
(C) has given written notice to any member of the Company Group under the
applicable Material Contract that it shall stop or decrease the rate of
supplying materials or services to the Company Group or that it shall stop or
decrease the rate of buying products or services from the Company Group, as
applicable.


 


2.26        Power of Attorney.  Except as set forth on Section 2.26 of the Disclosure Schedule, there are no
outstanding powers of attorney executed on behalf of the Company or any of its
Subsidiaries.


 


2.27        Privacy and Security Commitments.  With respect
to all Personally Identifiable Information or other information protected by
applicable Legal Requirements (including, without limitation, HIPAA or
equivalent Legal Requirements applicable in Canada or any other jurisdiction in
which the Company or any of its Subsidiaries does business as of the date hereof),
obtained by the Company or any of its Subsidiaries in the conduct of the
Business, and all 


 


30

















 


agreements, terms and
conditions and privacy certification license agreements applicable to such
Personally Identifiable Information (collectively, the “Privacy
Commitments”): (a) the Company and each of its Subsidiaries
is in material compliance with the Privacy Commitments; (b) all Privacy
Commitments adopted by the Company or any of its Subsidiaries are in compliance
with all Legal Requirements; (c) neither the Company nor any of its
Subsidiaries has received written inquiries from any Governmental  Body regarding the Privacy Commitments; (d) there
are no pending or, to the Knowledge of the Company, threatened Legal
Proceedings regarding the Privacy Commitments or compliance with the Privacy
Commitments; (e) if applicable, the Privacy Commitments have not been
rejected by any applicable certification organization which has reviewed the
Privacy Commitments or to which any of the Privacy Commitments have been
submitted; (f) no applicable certification organization has found the
Company or any of its Subsidiaries to be out of compliance with the Privacy
Commitments; and (g) to the Company’s Knowledge, there have been no
security breaches with respect to any of the Company’s or its Subsidiaries’
products or related data resulting in unauthorized access to or acquisition of
any Personally Identifiable Information. 
The Company and each of its Subsidiaries has at all times complied in
all respects with the rules applicable to the Company or any of its
Subsidiaries to the extent any of them constitute a “Business Associate,” as
defined by HIPAA, and the terms of all “Business Associate Agreements” any of
the Company or any of it Subsidiaries has executed with any “Covered Entity,”
each as defined and described by HIPAA.


 


2.28        Accounting Systems.  Each of the
Company and its Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (a) transactions are
executed in accordance with management’s general or specific authorizations, (b) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, and (c) access
to assets is permitted only in accordance with management’s general or specific
authorization.


 


2.29        Notes and Accounts Receivable.  All notes and
accounts receivable of the Company and its Subsidiaries are reflected properly
on their books and records, are valid and current receivables and to the
Company’s Knowledge, are not subject to any setoffs or counterclaims, subject
only to the reserve for bad debts set forth on the Most Recent Balance Sheet as
adjusted for passage of time through the Closing Date in accordance with the
past custom and practice of the Company and its Subsidiaries.


 


2.30        Title to Shares.  Each Principal Stockholder is
the sole, true, lawful, record and beneficial owner of such shares of Company
Capital Stock in the amount set forth opposite such Principal Stockholder’s
name in Section 2.30 of the Disclosure Schedule,
free and clear of any and all Liens and any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such shares).  Except as set forth on Section 2.30 of the Disclosure Schedule, none of such
shares of Company Capital Stock is subject to any voting trust or other
agreement or arrangement with respect to the voting of such shares.


 


2.31        Required Deliverables.  The Company
has delivered to Parent the required third party consents, authorizations,
approvals or other documents described in Section 2.31 of the
Disclosure Schedule.


 


31

















 


SECTION 3.  REPRESENTATIONS AND WARRANTIES OF PARENT AND
MERGER SUB.


 


Parent and Merger Sub jointly and severally represent and warrant to
the Company as follows:


 


3.1          Due Organization.  Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.  Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.


 


3.2          Authority; Binding Nature of Agreement.  Parent and
Merger Sub have the corporate power and authority to perform their obligations
under this Agreement; and the execution, delivery and performance by Parent and
Merger Sub of this Agreement have been duly authorized by all necessary
corporate action on the part of Parent and Merger Sub and their respective
boards of directors.  No vote of Parent’s
stockholders is needed to approve the Merger. 
This Agreement constitutes the legal, valid and binding obligation of
Parent and Merger Sub, enforceable against them in accordance with its terms,
subject to bankruptcy, reorganization, insolvency and other similar laws
affecting the enforcement of creditors’ rights in general and to general
principles of equity (regardless of whether considered in a proceeding in
equity or an action at law).


 


3.3          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 Parent or Merger Sub who might be entitled to any fee or
commission from any Effective Time Holder (or, if the Closing does not occur,
the Company) upon consummation of the Transactions.


 


3.4          Sufficient Funds.  Parent has, on the date
hereof, and will have on the Closing Date, the financial capability to
consummate the Merger on the terms and subject to the conditions set forth in
this Agreement.


 


SECTION 4.  PRE-CLOSING COVENANTS.


 


4.1        Access and Investigation.  During the
period from the date of this Agreement through the Effective Time (the “Pre-Closing Period”), upon
reasonable notice, the Company shall provide to Parent and its authorized
Representatives reasonable access during normal business hours to the offices,
Records, Tax Returns, Contracts, commitments, facilities and accountants of the
Company Group, and shall furnish and make available to Parent and its
authorized Representatives all such documents and copies of documents (at
Parent’s expense) and all such additional financial and operating data and
other information pertaining to the affairs of the Company Group as Parent and
its authorized Representatives may reasonably request; provided,
however, that (a) the activities of Parent and its
Representatives shall be conducted in such a manner as not to interfere
unreasonably with the operation of the businesses of the Company Group and (b) in
no event shall the Company be required to furnish Parent or its Representatives
with any documents or information that (i) the Company Group is required
by Legal Requirement, Governmental Order or Contract to keep confidential or (ii) that
would reasonably be expected to jeopardize the status of such document or
information as privileged, work product or as a trade secret.  Notwithstanding the foregoing, prior to the
Closing Date, without the prior written consent of the Company, which shall not
be unreasonably withheld or 


 


32

















 


delayed, neither Parent
nor its Representatives shall contact any suppliers to or customers (except as
provided below), employees or directors of, the Company or the Company’s
Subsidiaries in connection with or pertaining to any subject matter of this
Agreement.  Parent may retain a third
party firm that is in the business of conducting anonymous reference checks
with customers (which third party firm shall be reasonably acceptable to the
Company), and that third party firm may do so with customers of the Company
without giving prior notice to the Company (provided, that such third party
firm shall enter into a customary confidentiality agreement with the Company in
connection with, and prior to conducting, such checks).


 


4.2        Operation of Business of Company Prior to Closing. 
Except as otherwise permitted or required by this Agreement or as set
forth on Schedule 4.2, during the Pre-Closing
Period, neither the Company nor any of its Subsidiaries shall do any of the following:


 


(a)               issue or grant any equity securities or any
subscriptions, warrants, options or other agreements or rights of any kind
whatsoever to purchase or otherwise receive or be issued any equity securities
or any securities or obligations of any kind convertible into, or exercisable
or exchangeable for, any equity securities of the Company or any of its
Subsidiaries;


 


(b)               engage in any practice, take any action, or enter into
any transaction outside the ordinary course of business;


 


(c)               effect any recapitalization, reclassification, split
or like change in the capitalization of the Company or any of its Subsidiaries;


 


(d)               amend the organizational documents of the Company or
any of its Subsidiaries;


 


(e)               (i) grant any increase in the aggregate compensation
of officers and directors of the Company or any of the Company Subsidiaries or
make any general uniform increase in the compensation of employees of the
Company or any of its Subsidiaries outside the ordinary course of business,
except as required by any Contract existing on the date hereof, (ii) grant
any bonus to any employee, director or consultant of the Company or any of the
Company’s Subsidiaries, except as required by any Contract existing on the date
hereof or (iii) enter into any retention, deferred compensation, bonus or
other incentive compensation, profit sharing, stock option, stock appreciation
right, restricted stock, stock equivalent, stock purchase, pension, retirement,
medical, hospitalization, life or other insurance or other employee benefit
plan for the benefit of the officers, directors, or employees of the Company or
any of its Subsidiaries;


 


(f)                subject any of the properties or assets (whether
tangible or intangible) of the Company or any of its Subsidiaries to any Lien;


 


(g)               sell, assign, transfer, convey, lease or otherwise
dispose of any of the properties or assets of the Company or any of its
Subsidiaries except (i) in the ordinary course of business or (ii) transactions
less than or equal to $25,000 for any individual transaction or $100,000 for
all transactions in the aggregate;


 


33

















 


(h)               acquire any properties or assets or enter into
commitments for capital expenditures of the Company or any of its Subsidiaries
except (i) in the ordinary course of business and (ii) that do not
exceed $25,000 in any individual case or $100,000 in the aggregate;


 


(i)                enter into any Contract which restricts the ability of
the Company or any of its Subsidiaries to compete with, or conduct, any business
or line of business in any geographic area; or


 


(j)                agree or commit to do any of the foregoing.


 


Notwithstanding the
foregoing, nothing in this Section 4.2 shall prohibit the Company or any
of its Subsidiaries from taking any action or omitting to take any action as
required or as contemplated by this Agreement, as required by Legal Requirement
or otherwise approved in writing by Parent, which approval shall not be
unreasonably withheld or delayed.


 


4.3        HSR Act. 
If so required, the Company and Parent shall file any supplemental
information requested in connection with the notification and report form
required for the Transactions.  The
Company and Parent shall keep each other apprised of the status of any
communications with, and any inquiries or requests for additional information
from, the FTC and the DOJ and shall comply promptly with any such inquiry or
request.  The Company and Parent shall
use their commercially reasonable efforts to obtain any clearance required
under the HSR Act for the Transactions, and shall furnish to each other the
necessary information and reasonable assistance as the other may request in
connection with any filing or submission that is necessary under the HSR Act.


 


4.4        No Negotiation. 
During the Pre-Closing Period, the Company shall not, and shall cause
its Subsidiaries not to, directly or indirectly:


 


(a)               solicit or encourage the initiation of any inquiry,
proposal or offer from any Person (other than Parent) relating to a possible
Acquisition Transaction;


 


(b)               participate in any discussions or negotiations or
enter into any agreement with, or provide any non-public information to, any
Person (other than Parent) relating to or in connection with a possible
Acquisition Transaction; or


 


(c)               consider, entertain or accept any proposal or offer
from any Person (other than Parent) relating to a possible Acquisition
Transaction.


 


The Company shall
promptly terminate any pending discussions with respect to any possible
Acquisition Transaction as of the date of this Agreement and shall notify
Parent in writing of any inquiry, proposal or offer relating to a possible
Acquisition Transaction that is received by the Company during the Pre-Closing
Period.


 


4.5        Efforts to Consummate.  Each of the
parties hereto shall use its commercially reasonable efforts to take, or cause
to be taken, all lawful and reasonable actions within such party’s control and
to do, or cause to be done, all lawful and reasonable things within such party’s
control necessary to fulfill the conditions precedent to the obligations of the
other party(ies) hereunder and to consummate and make effective as promptly as
practicable the 


 


34

















 


Transactions and to
cooperate with each other in connection with the foregoing.  Nothing in this Agreement shall be construed
as an attempt or an agreement by the Company or any of its Subsidiaries to
assign or cause the assignment of any Contract or Permit which is by Legal
Requirement non-assignable without the consent of the other party or parties
thereto, unless such consent shall have been given.


 


4.6        Company Stockholder Approval.


 


(a)               Promptly after the execution of this Agreement, the
Company shall have prepared (and shall have provided Parent with a reasonable
opportunity to review and comment on) an information statement to be
distributed to those stockholders of the Company who will not have executed the
Stockholder Written Consent (the “Non-Consenting
Stockholders”), notifying them of the consummation of the
Transactions (the “Information Statement”),
which Information Statement shall comply with all applicable Legal Requirements
and this Section 4.6.  Promptly
following the execution of this Agreement, the Company shall distribute to the
Non-Consenting Stockholders a copy of the Information Statement.


 


(b)               To the extent required by the DGCL, the Company shall
promptly deliver to any stockholder of the Company who has not approved this
Agreement and the Transactions a notice of the approval of the Merger and
adoption of this Agreement by written consent of the stockholders of the
Company pursuant to the applicable provisions of the DGCL, which notice shall
constitute the notice to stockholders of the Company required by applicable
Legal Requirement that dissenters’ and/or appraisal rights may be available to
the stockholders of the Company in accordance with the DGCL.


 


4.7        Execution of Additional Documents.  Prior to
Closing, from time to time, as and when requested by a party hereto, each party
hereto shall execute and deliver, or cause to be executed and delivered, all
such documents and instruments and shall take, or cause to be taken, all such
further or other actions as such other party may reasonably deem necessary to
consummate the Transactions.


 


4.8        Publicity.  No public release or announcement concerning
the Transactions shall be issued by any party hereto or such party’s Affiliates
or Representatives without the prior consent of the other parties hereto,
except as follows:  (a) the Company
may make such disclosure to its owners as it deems necessary or desirable; (b) Parent
may make such disclosure in any documents utilized in connection with its
financing for the Transactions, but only after the recipients of any such
disclosure have been informed of the confidential nature of the Transactions
and such recipients have agreed to maintain the confidentiality of the
Transactions; (c) any release or announcement required by applicable Legal
Requirements, provided the party required to make the release or announcement
allows the other party reasonable time to comment on such release or
announcement in advance of such issuance; and (d) each party may disclose
to their investors and advisors the names of the Company and Parent, the date
of the Transactions, the price and the key terms under this Agreement, provided, however, that such investors and advisors
understand the confidential nature of such information and agree to maintain
the confidentiality of such information.


 


35
















 


4.9        Preservation of Business. 
During the Pre-Closing Period, the Company will  use its commercially reasonable efforts to
(and will cause its Subsidiaries to use commercially reasonable efforts) keep
its business and properties substantially intact, including its present
operations, physical facilities, working conditions, insurance policies and
relationships with lessors, licensors, suppliers, customers and employees.


 


4.10      401(K) Plan. Effective no later than the day
immediately preceding the Closing Date, the Company Group shall freeze and
terminate any and all plans intended to include a Code Section 401(k) arrangement
(the “Company 401(k) Plan”), unless Parent provides written notice
to the Company at least three (3) business days prior to the Closing Date
that the Company 401(k) Plan shall not be frozen or terminated.  Concurrent with the execution of this
Agreement, the Company has provided Parent with resolutions that have been duly
adopted by the Company’s Board of Directors terminating the Company 401(k) Plan
(effective as of the day immediately preceding the Closing Date), which
resolutions are in form and substance satisfactory to Parent.  The Company shall not take any action
inconsistent with such resolutions.


 


4.11      No Stock Transfers. 
During the Pre-Closing Period, the Principal Stockholders will maintain
the same interests they have in Company Capital Stock as they have as of the
date of this Agreement and will not dispose of, assign, convey or otherwise
transfer such Company Capital Stock.


 


4.12      Assumed Letters of Credit. 
Prior to the Closing, Parent shall take such actions as are necessary to
continue to replace the Assumed Letters of Credit.


 


SECTION 5. 
UPDATES TO THE DISCLOSURE SCHEDULE.


 


5.1        Updates to the Disclosure Schedule. 
The Company and its Subsidiaries will give prompt written notice to
Parent of any and all events, circumstances or changes which first arose solely
after the date hereof and which causes a breach of any of the representations
and warranties in Section 2 of this Agreement, or which should have been
disclosed pursuant to this Agreement as of the date hereof, by delivery to
Parent of one or more supplements to the Disclosure Schedule (each, a “Disclosure Supplement”).  Each Disclosure Supplement shall be in
writing and shall be delivered in accordance with the procedure set forth for
notice in Section 11.3.  A
Disclosure Supplement delivered by the Company or any of its Subsidiaries
pursuant to this Section 5 will not be deemed to have (a) amended the
Disclosure Schedule, (b) qualified the representations and warranties
contained in Section 2 of this Agreement, or (c) cured any
misrepresentation or breach of warranty existing hereunder by reason of the
development described in the Disclosure Supplement.


 


5.2          No Additional Warranties or
Representations; Due Diligence.  Parent, on
behalf of itself and its Affiliates, acknowledges that neither the Company nor
any other Person has made any representation or warranty, expressed or implied,
as to the accuracy or completeness of any information regarding the Company
Group or the Business, which has been communicated, furnished or made available
to Parent or Merger Sub or their respective Representatives, except as
expressly set forth in this Agreement (including the Disclosure Schedule).


 


36

















 


SECTION 6.  POST-CLOSING
COVENANTS.


 


6.1        Records.  The
Stockholders’ Agent may, following the Closing, and at its sole cost, make and
retain copies of the Company’s and its Subsidiaries’ Records, including Records
stored on computer disks or tapes or any other storage medium, as the
Stockholders’ Agent is reasonably likely to need in connection with any
accounting, auditing and Tax requirements, any Legal Requirements and any
claims or Legal Proceedings relating in whole or in part to the Effective Time
Holders, the Company or any Subsidiary of the Company (“Material
Records”); provided, however, that
Material Records do not include any Records containing patient data or
Personally Identifiable Information and the Stockholders’ Agent may not retain
patient data or any Personally Identifiable Information.  Following the sixth anniversary of the
Closing, the Stockholders’ Agent will dispose of such Material Records or
return them to the Surviving Corporation or Parent.  Parent shall cause the Surviving Corporation
to retain Material Records of the Company for a period of at least six (6) years
following the Closing, after which time, the Surviving Corporation may dispose
of such Material Records provided that Parent gives Stockholders’ Agent at
least thirty (30) days’ prior written notice of any such disposition, and if
requested by the Stockholders’ Agent, delivers any of such Material Records as
the Stockholders’ Agent may request. 
During the period in which the Surviving Corporation maintains such
Material Records, upon reasonable notice and request by the Stockholders’
Agent, the Surviving Corporation, during normal business hours, shall permit
the Stockholders’ Agent or any of its Representatives to examine, copy and make
extracts from all Material Records, all without cost, surcharge or expense
other than reasonable copy charges, as the Stockholders’ Agent and such
Representatives are reasonably likely to need in connection with any accounting,
auditing and Tax requirements, any Legal Requirements and any claims or Legal
Proceedings relating in whole or in part to the Effective Time Holders, the
Company or a Subsidiary of the Company, including, but not limited to, any
financial reporting obligation and in connection with any other such matter as
may be reasonably requested by the Stockholders’ Agent, but not including any
patient data or Personally Identifiable Information.


 


6.2        Cooperation. 
The parties hereto shall cooperate with each other and shall cause their
respective Representatives to cooperate with each other following the Closing
to ensure the orderly transition of the ownership of the Company its
Subsidiaries and the Business to Parent and to minimize any disruption to the
Business that might result from the Transactions.


 


6.3        401(K) Plan. 
Parent shall recognize all service of the Company’s employees with the
Company for purposes of eligibility, participation and vesting in Parent’s
tax-qualified defined contribution plan (the “Parent
401(k) Plan”). 
According to the rules and regulations of the Parent 401(k) Plan
and the Internal Revenue Service, the Parent 401(k) Plan’s Plan
Administrator and/or Contract Administrator for the Parent 401(k) Plan
shall consider whether the account balance of a Company employee who is
employed by Parent, Merger Sub or Company after Closing may roll over some or
all of such employee’s account balances from Company 401(k) Plan to Parent
401(k) Plan.


 


SECTION 7.  CONDITIONS PRECEDENT


 


7.1        Conditions Precedent to the Obligations
of Each Party to Effect the Merger.  Each party’s
obligations to effect the Merger and otherwise consummate the Transactions are 


 


37

















 


subject to the
satisfaction or waiver, at or prior to the Closing, of each of the following
conditions:


 


(a)               HSR Act. 
Any applicable waiting period under the HSR Act relating to the Merger
shall have expired or been terminated


 


(b)               No Injunctions or Restraints. 
No temporary restraining order, preliminary or permanent injunction or
other material legal restraint or prohibition issued or promulgated by a
Governmental Body preventing the consummation of the Transactions shall be in
effect, and there shall not be any Legal Requirement enacted or deemed applicable
to the Transactions that makes consummation of the Transactions illegal.


 


7.2        Conditions Precedent to Obligations of
Parent and Merger Sub.  The obligations of Parent and
Merger Sub to effect the Merger and otherwise consummate the Transactions are subject
to the satisfaction or waiver, at or prior to the Closing, of each of the
following conditions:


 


(a)               Accuracy of Representations. 
Each of the representations and warranties made by the Company and the
Principal Stockholders in this Agreement shall be true and correct in all
material respects at the Closing Date, except where the representations or
warranties are qualified by materiality or Material Adverse Effect, in which
case such representations and warranties will be true and correct in all respects
at the Closing.


 


(b)               Performance of Covenants. 
All of the covenants and obligations that the Company or any of its
Subsidiaries is required to comply with or to perform at or prior to the
Closing Date shall have been complied with and performed in all material
respects.


 


(c)               Dissenting Stockholders.  The holders of no more than five percent (5%) of the
capital stock of the Company shall have dissented to the Transactions under the
DGCL.


 


(d)           No Material Adverse Effect.  There shall
not have occurred any Material Adverse Effect with respect to the Company and
the Company’s Subsidiaries.


 


(e)           Legal Opinion.  Parent will have received from Cooley
Godward Kronish LLP, outside counsel to the Company, a legal opinion in the
form of the attached Exhibit J
addressed to Parent and dated as of the Closing Date.


 


(f)            General Releases.  Parent will
have received from each of the Principal Stockholders, R. David Tabors, Jeffrey
R. Tognoni and Jesse Feldman, a General Release duly executed by such Persons
in the form of the attached Exhibit K
for the benefit of Parent, Merger Sub and the Company and made effective as of
the Closing Date.


 


(g)           Fleischer Release.  Parent will
have received from Russell Fleischer separation and mutual release agreement
duly executed by Mr. Fleischer in the form of the attached Exhibit H for the benefit of
Parent, Merger Sub and the Company and made effective as of the Closing Date.


 


38

















 


(h)           Agreement Terminations.  Parent will
have received from the applicable stockholders, directors and officers of the
Company agreements in the form of the attached Exhibit L
regarding the termination of the following agreements, in each case duly
executed by the applicable Persons for the benefit of Parent, Merger Sub and
the Company and made effective as of the Closing Date:  (i) the Stockholder Agreement entered
into as of August 23, 2007, by and among the Company, the individual
managers listed on Schedule A thereto and the investors listed on Schedule B thereto;
(ii) the Management Rights Letters between the Company and each of the
Principal Stockholders, each dated January 29, 2009; and (iii) the
Indemnification Agreements between the Company and each of Russell Fleischer,
R. David Tabors, Jeffrey R. Tognoni and Jesse Feldman, each dated January 29,
2009.


 


(i)            Escrow Agreement.  Parent will
have received from the Principal Stockholders the Escrow Agreement, duly
executed by the Principal Stockholders.


 


7.3        Conditions Precedent to Obligations of
the Company.  The obligations of the Company to effect the
Merger and otherwise consummate the Transactions are subject to the
satisfaction or waiver, at or prior to the Closing, of the following
conditions:


 


(a)               Accuracy of Representations. 
Each of the representations and warranties made by Parent and Merger Sub
in this Agreement shall be true and correct in all material respects at the
Closing Date.


 


(b)               Performance of Covenants. 
All of the covenants and obligations that Parent and Merger Sub are
required to comply with or to perform at or prior to the Closing Date shall
have been complied with and performed in all material respects.


 


SECTION 8.  TERMINATION.


 


8.1        Termination Events. 
This Agreement may be terminated prior to the Closing:


 


(a)               by Parent, if (i) Parent reasonably determines
that the timely satisfaction of any conditions set forth in Section 7 has
become impossible (other than as a result of any failure on the part of Parent
or Merger Sub to comply with or perform any covenant or obligation of Parent or
Merger Sub set forth in this Agreement), or (ii) if the Closing does not
occur on or before February 1, 2010, by reason of the failure of any
condition precedent under Section 7 of this Agreement (other than as a
result of any failure on the part of Parent or Merger Sub to comply with or
perform any covenant or obligation of Parent or Merger Sub set forth in this
Agreement);


 


(b)               by the Company, if (i) Company reasonably
determines that the timely satisfaction of any conditions set forth in Section 7
has become impossible (other than as a result of any failure on the part of the
Company to comply with or perform any covenant or obligation set forth in this
Agreement or in any other agreement or instrument delivered to Parent), or (ii) if
the Closing does not occur on or before February 1, 2010, by reason of the
failure of any condition precedent under Section 7 of this Agreement
(other than as a result of any failure on the part of the Company to comply
with or perform any covenant or obligation set forth in this Agreement or in
any other agreement or instrument delivered to Parent); or


 


39

















 


(c)               by the mutual consent of Parent and the Company.


 


8.2        Termination Procedures. 
If Parent wishes to terminate this Agreement pursuant to Section 8.1(a),
Parent shall deliver to the Company a written notice stating that Parent is
terminating this Agreement and setting forth a brief description of the basis
on which Parent is terminating this Agreement. 
If the Company wishes to terminate this Agreement pursuant to Section 8.1(b),
the Company shall deliver to Parent a written notice stating that the Company
is terminating this Agreement and setting forth a brief description of the
basis on which the Company is terminating this Agreement.


 


8.3        Effect of Termination. 
If this Agreement is terminated pursuant to Section 8.1, all
further obligations of the parties under this Agreement shall terminate; provided, however, that: (a) neither the Company nor Parent
shall be relieved of any obligation or Liability arising from any prior breach
by such party of any provision of this Agreement; and (b) the parties shall, in all
events, remain bound by and continue to be subject to the provisions set forth
in Section 11.


 


SECTION 9. 
INDEMNIFICATION, ETC.


 


9.1        Effectiveness. 
The provisions of this Section 9 shall apply and become effective
only if the Merger is consummated.


 


9.2        Survival. 
Notwithstanding any investigation made by or on behalf of any of the
parties or the results of any investigation, and notwithstanding the
participation of the parties in the Closing, the representations and warranties
contained in this Agreement and in any certificate delivered at the Closing
pursuant to this Agreement shall survive the Closing until the twelve (12)
month anniversary of the Closing (the “Cut-Off Date”).  No Claim for indemnification under Sections
9.3 and 9.4 of this Agreement, as applicable, may be brought after the Cut-Off
Date, except for Claims (a) of which the Stockholders’ Agent has been
notified in writing with reasonable specificity by Parent prior to the Cut-Off
Date, (b) of which Parent has been notified in writing with reasonable
specificity by the Stockholders’ Agent prior to the Cut-Off Date, or (c) subject
to the following sentence, for breach of the Specified Representations or any
Claim for indemnification under Sections 9.3(c), 9.3(d) or 9.3(e) of
this Agreement.  Notwithstanding anything
to the contrary contained in this Section 9.2, the Specified
Representations and Claims for indemnification under Sections 9.3(c), 9.3(d) or
9.3(e) of this Agreement shall survive the Closing until the sixth (6th) anniversary of the Closing Date; provided, however, that if, at any time prior to the sixth
(6th) anniversary of the Closing Date, any
Parent Indemnitee delivers to the Stockholders’ Agent a written Claim Notice
alleging, with reasonable specificity, the existence of an inaccuracy in or a
breach of a Specified Representation and asserting a Claim for recovery under Section 9.3
based on such alleged inaccuracy or breach or a Claim for indemnification under
Sections 9.3(c), 9.3(d) or 9.3(e) of this Agreement, then the Claim
asserted in such Claim Notice shall survive the sixth (6th) anniversary of the Closing Date until such time as such
Claim is fully and finally resolved.  The
post-Closing covenants contained in this Agreement shall survive in accordance
with their respective terms.


 


9.3        Indemnification of the Parent
Indemnitees.  Subject to the terms contained in this Section 9,
the Escrow Participants will indemnify the Parent Indemnities from and against 


 


40

















 


the entirety of any
Damages incurred by any of them, arising out of or as a result of: (a) any
breach of any of the representations or warranties of the Company and the
Principal Stockholders contained in Section 2; (b) the failure of the
Company or any of its Subsidiaries or the Principal Stockholders to perform,
prior to or at the Closing, any of their covenants or agreements contained
herein; (c) any claims made by or among the Effective Time Holders or any
other Person with respect to allocation of the Merger Consideration or
entitlement to the Merger Consideration; (d) any Dissenting Share
Payments; or (e) pursuant to Section 10.1 of this Agreement.  The Parent Indemnitees (other than Parent)
are intended third party beneficiaries of this Section 9.3, and Parent
shall have the right to enforce the provisions of this Section 9.3 on
behalf of the Parent Indemnitees.


 


9.4        Indemnification of the Stockholder
Indemnitees.  Subject to the terms contained in this Section 9,
Parent will indemnify the Stockholder Indemnitees from and against the entirety
of any Damages incurred by any of them, arising out of or as a result of: (a) any
breach of any of the representations or warranties of Parent or Merger Sub
contained in Section 3; or (b) the failure of Parent or Merger Sub to
perform any of their covenants or agreements contained herein. The Stockholder
Indemnitees (other than the Principal Stockholders) are intended third party
beneficiaries of this Section 9.4, and the Stockholders’ Agent shall have
the right to enforce the provisions of this Section 9.4 on behalf of the
Stockholder Indemnitees.


 


9.5        Procedure
Relative to Indemnification.


 


(a)               In the event that any party hereto shall claim that it
is entitled to be indemnified, defended or held harmless pursuant to the terms
of this Section 9 (each, a “Claim”),
such party (the “Claiming Party”) shall
promptly notify the party or parties against which the claim is made (the “Indemnifying Party”) in writing (a “Claim Notice”) of such Claim
promptly after the Claiming Party becomes aware of the Claim or receives notice
of any action, Legal Proceeding, demand or assessment or otherwise has received
notice of any claim of a third party (a “Third-Party Claim”)
that may reasonably be expected to result in a Claim by the Claiming Party
against the Indemnifying Party.  The
Claim Notice shall specify the breach of representation, warranty, agreement or
covenant claimed by the Claiming Party and the Damages incurred by, or imposed
upon, the Claiming Party on account thereof. 
If such Damages are liquidated in amount, the Claim Notice shall so
state and such amount shall be deemed the amount of the Claim of the Claiming
Party.  If the amount is not liquidated,
the Claim Notice shall so state and in such event a Claim shall be deemed
asserted against the Indemnifying Party on behalf of the Claiming Party, but no
payment shall be made on account thereof until the amount of such Claim is
liquidated and the Claim is finally determined.


 


(b)               The following provisions shall apply to Claims of the
Claiming Party which are based upon a Third-Party Claim (including any form of
Legal Proceeding filed or instituted by any Governmental Body):


 


(i)            The Indemnifying Party shall have the right, upon
receipt of the Claim Notice and at its expense, to defend such Third-Party
Claim in its own name or, if necessary, in the name of the Claiming Party.  The Claiming Party shall cooperate with and
make available to the Indemnifying Party such assistance and materials as may
be reasonably requested of the Claiming Party, and the Claiming Party shall
have the right, at the Claiming 


 


41

















 


Party’s expense, to
participate in the defense.  The
Indemnifying Party shall have the right to settle and compromise such
Third-Party Claim only with the consent of the Claiming Party (which consent
shall not be unreasonably withheld or delayed) unless there is no finding or
admission of any violation of Legal Requirements or any violation of the rights
of any Person and no effect on any other Claims that may be made against the
Claiming Party and the sole relief provided is monetary damages that are paid
in full by the Indemnifying Party.  If
the Claiming Party fails to consent to any settlement or compromise offer, the
Indemnifying Party may continue to contest such Third-Party Claim and, in such
event, the maximum liability of the Indemnifying Party to the Claiming Party
such Claim shall not exceed such settlement or compromise offer.


 


(ii)           Regardless of whether the Indemnifying Party elects to
defend the Third-Party Claim, the Indemnifying Party shall also have the right,
within thirty (30) days from receipt of the Claim Notice, to notify the
Claiming Party that the Indemnifying Party disputes the merits of the
Third-Party Claim or that the Third-Party Claim is the subject of
indemnification hereunder.  Such dispute
shall not affect the Indemnifying Party’s right to defend the Third-Party Claim
under Section 9.5(b)(i).


 


(iii)         In the event the Indemnifying Party shall notify the
Claiming Party that the Indemnifying Party does not wish to defend the
Third-Party Claim, then the Claiming Party shall have the right to conduct a
defense against such Third-Party Claim and shall have the right to settle and
compromise such Third-Party Claim if it acts reasonably and in good faith upon
ten (10) days’ notice to, but without having to first obtain the consent
of, the Indemnifying Party.


 


(c)               Upon receipt of a Claim Notice that does not involve a
Third-Party Claim, the Indemnifying Party shall have thirty (30) days from the
receipt of such Claim Notice to notify the Claiming Party that the Indemnifying
Party disputes such Claim.  If the
Indemnifying Party does not timely notify the Claiming Party of such dispute,
then the amount of such Claim shall be deemed, conclusively, a Liability of the
Indemnifying Party hereunder.  If the
Indemnifying Party does timely notify the Claiming Party of such dispute, then
the Claiming Party shall have thirty (30) days to respond in a written
statement to the objection of the Indemnifying Party.  If after such thirty (30)-day period there
remains a dispute as to any such Claim, then the Claiming Party and the
Indemnifying Party shall attempt in good faith for a period not to exceed
thirty (30) additional days to agree upon the rights of the respective parties
with respect to such Claim.  If the
parties should so agree, a memorandum setting forth such agreement shall be
prepared and signed by the Parent and the Stockholders’ Agent.  If the parties do not agree within such
additional thirty (30)-day period, then the Claiming Party may pursue any and
all other remedies available to it hereunder. 
With respect to any Claim Notice relating to a breach of the
representation and warranty contained in the last sentence of Section 2.15(h) or
Section 2.15(j), the Claiming Party shall promptly notify the Stockholders’
Agent after it becomes of aware of such Claim and shall keep the Stockholders’
Agent reasonably informed of any remediation actions to be taken by the
Claiming Party with respect thereto.


 


(d)               In the event it is determined, or the Claiming Party
agrees, that the Indemnifying Party is not obligated to indemnify the Claiming
Party for such Claim, the Claiming Party agrees to pay all costs, expenses and
fees, including reasonable attorneys’ fees, 


 


42

















 


which may have been
incurred by the Indemnifying Party in defending or disputing the Claim by the
Claiming Party under this Section 9.


 


(e)               In the event any Parent Indemnitee receives any oral
or written communication regarding any pending or threatened examination,
claim, adjustment or other Legal Proceeding with respect to the Liability of
the Surviving Corporation or any of the Company’s Subsidiaries for Taxes for
which the Effective Time Holders are or may be liable under this Agreement by
reason of a breach of any representation or warranty set forth in Section 2.12
or otherwise (a “Tax Claim”), the Surviving
Corporation shall, within ten days, notify the Stockholders’ Agent in writing
thereof, and the Effective Time Holders, through the Stockholders’ Agent, shall
be entitled, at their sole expense, to control or settle the contest of, any
examination, claim, adjustment or Legal Proceeding that could give rise to such
Liability; provided, however, that the Effective
Time Holders shall not take or advocate any position that could reasonably be
expected to have a material adverse effect on the Surviving Corporation or any
of the Company Subsidiaries without the prior written consent of the Surviving
Corporation, which consent shall not be unreasonably withheld or delayed.  The Effective Time Holders through the
Stockholders’ Agent shall keep the Surviving Corporation fully and timely
informed with respect to the commencement, status and nature of any such Tax
Proceeding.  The Surviving Corporation
and the Company Subsidiaries shall cooperate fully with the Stockholders’ Agent
in handling any such Tax Claim.  The
Surviving Corporation shall provide, or cause to be provided to the
Stockholders’ Agent or its designee, all necessary authorizations, including
powers of attorney, to control any such Tax Proceeding which the Effective Time
Holders are entitled to control in connection with this Section 9.5(e).  Notwithstanding anything contained in the
Transaction Documents to the contrary, if any such Tax Proceeding relating to a
Tax Claim results in the payment of any Taxes for which the Effective Time
Holders are liable hereunder, the amount of the Taxes for which the Effective
Time Holders are liable shall be net of any Tax benefit realized or reasonably
expected to be realized by the Surviving Corporation, the Company’s
Subsidiaries or any of their respective Affiliates as a result of the facts and
circumstances giving rise to the Liability (also taking into account any Tax
detriment realized by the receipt of such indemnification payment) of the Effective
Time Holders for such Taxes.


 


(f)                For purposes of this Section 9, the Stockholders’
Agent shall act on behalf of the Stockholder Indemnitees.


 


(g)               The parties hereby agree that, unless otherwise
required by a final “determination” within the meaning of Section 1313 of
the Code, all indemnification payments made pursuant to this Agreement will be
treated for income tax purposes as adjustments to the Merger Consideration.


 


9.6        Limits
on Indemnification.


 


(a)               Basket. 
Neither the Escrow Participants nor the Company shall be obligated to
indemnify, defend or hold harmless any Parent Indemnitee with respect to any
Damages from any Claim or Claims made by a Parent Indemnitee pursuant to
Sections 9.3(a) or 9.3(b) of this Agreement, except to the extent
that the aggregate Damages from all Claims exceed one-half percent (0.5%) of
the Enterprise Value (the “Basket Amount”),
at which point the Escrow Participants will only be obligated to indemnify the
Parent Indemnitees from and 


 


43

















 


against all Damages above
the Basket Amount.  Notwithstanding
anything contained in the Transaction Documents to the contrary, the
limitations set forth in this Section 9.6(a) shall not apply (i) to
inaccuracies in or breaches of any of the Specified Representations or (ii) to
inaccuracies in or breaches of any of the representations and warranties
contained in Section 2.18 of this Agreement relating to the Company’s 401(k) Plan
or any predecessor thereto.


 


(b)               Escrow as Cap. 
In no event shall (i) the Escrow Participants’ aggregate liability
for Damages pursuant to Sections 9.3(a) or 9.3(b) exceed, in the
aggregate, the Escrow Amount, or (ii) any individual Escrow Participant’s
liability for Damages pursuant to Sections 9.3(a) or 9.3(b) exceed,
in the aggregate, such Escrow Participant’s Escrow Contribution; provided, however, that the limitations set forth in this Section 9.6(b) shall
not apply to inaccuracies in or breaches of any of the Specified
Representations or as otherwise provided in Section 9.6(c).


 


(c)               Liability Cap Applicable to the
Specified Representations and other Matters.  In no event
shall: (i) Russell Fleischer have any liability for indemnification with
respect to Section 9.3(c), 9.3(d) or 9.3(e) or resulting from an
inaccuracy or breach of the Specified Representations, in excess of his Escrow
Contribution (and, with respect thereto, the Escrow Amount shall constitute the
exclusive remedy), or (ii) any individual Principal Stockholder’s
liability for Damages pursuant to Sections 9.3(c), 9.3(d) or 9.3(e) or
resulting from an inaccuracy or breach of the Specified Representations exceed,
in the aggregate, such Principal Stockholder’s Pro Rata Share of the Merger
Consideration.


 


(d)               Cut-Off Date. 
Any Claim made under Sections 9.3(a) or 9.3(b) and 9.4(a) or
9.4(b) of this Agreement, except as expressly provided in Section 9.2,
not submitted in writing to the Indemnifying Party prior to the expiration of
the Cut-Off Date shall be deemed to have been waived and shall be absolutely
and forever barred and unenforceable, null and void, and of no force or effect
whatsoever and the indemnifying party shall have no further liability with
respect thereto.


 


(e)               Treatment of Insurance and Tax
Benefits.  With respect to each Claim, the Claiming
Party (or in the case of a Claim by any Parent Indemnitee after Closing, the
Surviving Corporation and the Company Subsidiaries) shall use commercially
reasonable efforts to assert all claims under all applicable insurance
policies, and any Damages that may be recovered by the Claiming Party with
respect to such Claim shall be net of any insurance proceeds received with
respect thereto (net of the present value of any increases in premiums).  To the extent that insurance proceeds are
collected after a Claim has been settled, the Claiming Party shall restore the
Indemnifying Party to the same economic position as would have existed had such
insurance proceeds been collected prior to the settlement of such Claim.  In addition, the Damages that may be recovered
by a Claiming Party shall be net of any Tax benefit as a result of the facts
and circumstances giving rise to the Liability of the Indemnifying Party, but
solely to the extent of any Tax benefit actually received (if and when received
and treating any such benefit as the last item of deduction for the applicable
Tax year) and taking into account any Tax detriment to the Claiming Party from
the indemnification payments (taking into account Section 9.5(g) below).


 


44
















 


(f)                Right of Subrogation. 
If any of the Damages for which an Indemnifying Party is responsible or
allegedly responsible under this Section 9 are recoverable or reasonably
likely to be recoverable against any third party at the time that payment is
due hereunder, the Claiming Party shall assign any and all rights that it may
have to recover such Damages to the Indemnifying Party or, if such rights are
not assignable for any reason, the Claiming Party shall use commercially
reasonable efforts to collect any and all such Damages on account thereof from
such third party for the benefit of the Indemnifying Party.  The Claiming Party shall reimburse the
Indemnifying Party for any and all Damages paid by the Indemnifying Party to
the Claiming Party pursuant to this Agreement to the extent such amount is
subsequently paid to the Claiming Party by any Person other than the
Indemnifying Party.


 


(g)               No Duplication of Recovery. 
Notwithstanding anything contained in the Transaction Documents to the
contrary, (i) to the extent that any Damages resulting from any breach of
any representation, warranty, covenant or agreement of the Company under Section 2
is taken into account as a current liability, reserved or accrued, or otherwise
accounted for, in determining Working Capital, (A) no Parent Indemnitee
may recover such Damages through a Claim pursuant to Section 9 or
otherwise and (B) such Damages shall not be included in the determination
of whether all Damages, in the aggregate, exceed the Basket Amount, and (ii) no
Parent Indemnitee may recover duplicative Damages from the Escrow Participants
(including the Principal Stockholders) in respect of a single set of facts or
circumstances under more than one representation or warranty in the Transaction
Documents regardless of whether such facts or circumstances would give rise to
a breach of more than one representation or warranty in this Agreement.


 


(h)           Disclaimer  of Certain Damages.  Notwithstanding anything contained
in the Transaction Documents to the contrary, no Person shall be liable to any
other Person under this Agreement or any Transaction Documents for any
exemplary or punitive damages of such other Person or for any consequential
damages of such Person to the extent such consequential damages are not
reasonably foreseeable, whether in contract, tort (including negligence),
strict liability or otherwise; provided, however, that for purposes of this
sentence any damages awarded or claimed on account of a third party claim will
be deemed to be actual Damages even if constituting any of the foregoing.  Each party hereby expressly releases the
other parties and their respective representatives from all such Damages as
described in the immediately preceding sentence.


 


9.7        Exclusive Remedies. 
If the Merger has been consummated, then from and after the Effective
Time, the sole and exclusive remedy of Parent, the Surviving Corporation, the
Stockholder’s Agent and the Escrow Participants in respect of any and all
Claims (other than statutory, equitable or common law rights or remedies, in
each case, for fraud or intentional misrepresentation) arising out of or
relating to the Merger and the Transactions (a “Covered
Matter”) (irrespective of the cause of action, whether in
contract, tort or otherwise) will be to make an indemnification claim pursuant
to this Section 9.  If the Merger
has been consummated, no Covered Matter will give rise to any right of any
party hereto to rescind this Agreement or any of the Transactions.  Notwithstanding the foregoing, in no event
shall any of the Parent Indemnitees be deemed to have waived any statutory,
equitable or common law rights or remedies for fraud or intentional
misrepresentation.


 


45

















 


9.8        Escrow As First Source of Recovery.  Any indemnification to which Parent Indemnitees are
entitled under this Agreement as a result of Damages they may suffer shall be
deducted, first, by the Parent Indemnitees from the Escrow Amount in accordance
with the terms and conditions of this Agreement and the Escrow Agreement; and,
accordingly, the Escrow Amount shall be the first source of recovery for such
Damages.  No  Principal
Stockholder shall be liable for Damages directly, until such time as the Escrow
Amount has been reduced to zero in accordance with the terms and conditions of
this Agreement and the Escrow Agreement. 
Subject to the terms and conditions of this Agreement, the entire amount
of the Escrow Amount shall be available to the Parent Indemnitees on a joint
and several basis for satisfaction of any Damages they may suffer, regardless
of whether or not such Damages were caused by a particular Escrow Participant,
and irrespective of whether Claims were first asserted by the Parent
Indemnitees against one or more of the Escrow Participants.  Subject to Sections 9.6(e) and 9.6(f),
none of the Escrow Participants may recover from the Parent Indemnitees, and
none of the Parent Indemnitees has any Liability for, any amount by which the
Escrow Amount is reduced thereby.


 


9.9        No Recovery. 
No Principal Stockholder will be entitled to make any Claim for
indemnification against Parent, the Merger Sub or, after the Effective Time,
the Surviving Corporation by reason of the fact that such Principal Stockholder
was a controlling Person, director, employee or representative of the Company
or was serving as such for another Person at the request of Parent or the
Company (whether such Claim is for Damages of any kind or otherwise and whether
such claim is pursuant to any statute, governing documents, contractual
obligation or otherwise) with respect to any Claim for which a Parent
Indemnitee is entitled to indemnification from a Principal Stockholder under
this Agreement.


 


9.10      Determination of Damages. 
For purposes of this Section 9 and for calculating Damages resulting
from a breach or inaccuracy of a representation or warranty (but not for the
purpose of determining the existence of such breach or inaccuracy), all
qualifications as to “materiality” and “Material Adverse Effect” shall be
disregarded and without effect (as if such standard or qualification were
deleted from such representation, warranty or covenant).


 


SECTION 10.  TAX MATTERS.


 


10.1      Tax Indemnification. 
The Principal Stockholders shall jointly and severally indemnify the
Parent Indemnitees from and against, any Damages attributable to (a) all
Taxes (or the non-payment thereof) of the Company and its Subsidiaries for all
taxable periods ending on or before the Closing Date and the portion through
the end of the Closing Date for any taxable period that includes (but does not
end on) the Closing Date (“Pre-Closing Tax Period”),
(b) all Taxes of any member of an affiliated, consolidated, combined or
unitary group of which the Company or any of its Subsidiaries (or any
predecessor of any of the foregoing) is or was a member on or prior to the
Closing Date, including pursuant to Treasury Regulation § 1.1502-6 or any
analogous or similar state, local, or foreign Legal Requirements, and (c) any
and all Taxes of any Person (other than the Company and its Subsidiaries)
imposed on the Company or any of its Subsidiaries as a transferee or successor,
by contract or pursuant to any law, rule, or regulation, which Taxes relate to
an event or transaction occurring before the Closing; provided, however, that
in the case of clauses (a), (b), and (c) above, the Principal Stockholders
shall be liable only to the extent that such Taxes exceed the amount, if any,
reserved for such Taxes (excluding any 


 


46

















 


reserve for deferred
Taxes established to reflect timing differences between book and Tax income)
included in the computation of the Working Capital for purposes of Section 1
of this Agreement, and provided further that Parent shall not be entitled to a
duplicate recovery for any amount indemnifiable pursuant to this Section 10.  For the avoidance of doubt, the
indemnification obligations of the Principal Stockholders under this Section 10.1
shall not be limited by any language or limitations contained in the
representation on Taxes found in Section 2.12.  The procedures set forth in Section 9.5
shall apply with respect to any claim by Parent for Tax indemnification under
this Section 10.1.  Any Taxes of the
Company or its Subsidiaries that are the responsibility of the Principal
Stockholders pursuant to this Section 10.1 constitute Damages giving rise
to a Claim that the Parent Indemnitees may assert against the Stockholder
Indemnitees in accordance with Section 9 of this Agreement.  For the avoidance of doubt, all
available net operating loss and net capital loss carryforwards attributable to
Pre-Closing Tax Periods of the Company and its Subsidiaries shall be applied
when determining (i) Taxes of the Company and its Subsidiaries for
Pre-Closing Tax Periods, and (ii) any indemnification obligation under
this Agreement in the event of a breach of a representation set forth in Section 2.12
of this Agreement.


 


10.2      Straddle Period and Other Allocations. 
In the case of any taxable period that includes (but does not end on)
the Closing Date (a “Straddle Period”),
the amount of any Taxes based on or measured by income or receipts of the
Company and its Subsidiaries for the Pre-Closing Tax Period shall be determined
based on an interim closing of the books as of the close of business on the
Closing Date (and for such purpose, the taxable period of any partnership or
other pass-through entity in which the Company or any of its Subsidiaries holds
a beneficial interest shall be deemed to terminate at such time) and the amount
of other Taxes of the Company and its Subsidiaries for a Straddle Period that
relates to the Pre-Closing Tax Period shall be deemed to be the amount of such
Tax for the entire taxable period multiplied by a fraction the numerator of
which is the number of days in the taxable period ending on the Closing Date
and the denominator of which is the number of days in such Straddle
Period.  For the avoidance of doubt, all
employer Taxes attributable to payments of compensation to employees and former
employees of the Company and the Subsidiaries after the Effective Time, and all
employer Taxes attributable to Option Consideration, shall be the
responsibility of Parent and shall not be subject to indemnification or
reimbursement under this Section 10 or any other provision of this
Agreement; provided, however, that Parent shall be responsible for such employer
Taxes only to the extent the employer Taxes are attributable to such
compensation and Option Consideration that is paid after the Closing Date or,
if paid on the Closing Date, is deductible after the Closing
Date.  The parties agree that the payment of compensation
(including Option Consideration) to employees or former employees of the
Company and the Subsidiaries on the Closing Date but after the Effective
Time shall be properly allocable to the portion of the Closing
Date of the Company and its Subsidiaries after the Effective Time, so
that, in accordance with Treasury Regulation 1.1502-76(b)(1)(ii)(B),
such payment shall be treated for all Federal income tax purposes as
occurring at the beginning of the day following the Closing Date.


 


10.3      Cooperation.  The parties hereto shall
reasonably cooperate, and shall cause their Representatives reasonably to
cooperate, in the preparation of Tax Returns, the payment of Taxes, the
resolution of Tax audits and Tax deficiencies, and effectuating the
terms of this Agreement, including maintaining and making available to each
other all records necessary in connection therewith.  Parent shall retain the Records of the
Company as provided in Section 6.1 


 


47

















 


of the Agreement. 
The Stockholder’s Agent shall retain all Records in its possession with
respect to Tax matters pertinent to the Company and its Subsidiaries relating
to any taxable period beginning before the Closing Date for at least seven (7) years
following the Closing.


 


SECTION 11. MISCELLANEOUS PROVISIONS.


 


11.1      Stockholders’ Agent.


 


(a)               Appointment. 
By virtue of the adoption of this Agreement pursuant to the Stockholder
Written Consent or such other agreements and documents, as applicable, the
Effective Time Holders irrevocably nominate, constitute and appoint the
Stockholders’ Agent as the agent and true and lawful attorney-in-fact of the
Effective Time Holders, with full power of substitution, to act in the name,
place and stead of the Effective Time Holders for purposes of executing any
documents and taking any actions that the Stockholders’ Agent may, in its sole
discretion, determine to be necessary, desirable or appropriate in connection
with any claim for indemnification, compensation or reimbursement under Section 9
or under the Escrow Agreement.


 


(b)               Authority. 
The Effective Time Holders grant to the Stockholders’ Agent full
authority to execute, deliver, acknowledge, certify and file on behalf of the
Effective Time Holders (in the name of any or all of the Effective Time Holders
or otherwise) any and all documents that the Stockholders’ Agent may, in its
sole discretion, determine to be necessary, desirable or appropriate, in such
forms and containing such provisions as the Stockholders’ Agent may, in its
sole discretion, determine to be appropriate, in performing his duties as
contemplated by Section 11.1(a). Notwithstanding anything to the contrary
contained in this Agreement or in any other agreement executed in connection
with the Transactions: (i) each Parent Indemnitee shall be entitled to
deal exclusively with the Stockholders’ Agent on all matters relating to any
claim for indemnification, compensation or reimbursement under Section 9
or under the Escrow Agreement; and (ii) each Parent Indemnitee shall be
entitled to rely conclusively (without further evidence of any kind whatsoever)
on any document executed or purported to be executed on behalf of any Effective
Time Holder by the Stockholders’ Agent, and on any other action taken or
purported to be taken on behalf of any Effective Time Holder by the
Stockholders’ Agent, as fully binding upon such Effective Time Holder.


 


(c)               Power of Attorney. 
The Effective Time Holders recognize and intend that the power of
attorney granted in Section 11.1(a): (i) is coupled with an interest
and is irrevocable; (ii) may be delegated by the Stockholders’ Agent
(provided that such delegation is reasonably acceptable to Parent); and (iii) shall
survive the death or incapacity of any Effective Time Holder.


 


(d)               Replacement. 
If the Stockholders’ Agent shall dissolve or otherwise be unable to
fulfill its responsibilities hereunder, the Effective Time Holders shall (by
consent of those Persons entitled to at least a majority of the Merger
Consideration), within 30 days after such dissolution, appoint a successor to
the Stockholders’ Agent (who shall be reasonably satisfactory to Parent) and
immediately thereafter notify Parent of the identity of such successor. Any
such successor shall succeed the Stockholders’ Agent as the “Stockholders’
Agent” 


 


48

















 


hereunder.  If for any reason there is no Stockholders’
Agent at any time, all references herein to the Stockholders’ Agent shall be
deemed to refer to the Effective Time Holders.


 


(e)               Stockholder’s Agent Retention
Account.  The Company and the Stockholders’ Agent will,
at least two days prior to the Closing Date, direct, by joint written notice(s) to
Parent, that on the Closing Date a portion of the Merger Consideration
otherwise payable to the Escrow Participants, in an amount equal to $25,000,
shall be withheld and paid directly by Parent to the Stockholders’ Agent as
designated in such notice, as a fund for the fees and expenses of the
Stockholders’ Agent incurred in connection with this Agreement (the “Stockholders’ Agent Retention Account”),
with any balance of the Stockholders’ Agent Retention Account not used for such
purposes to be paid by the Stockholders’ Agent to the Effective Time Holders in
accordance with their respective Escrow Contributions.


 


(f)                Exculpation. 
The Stockholders’ Agent shall not be liable to any Effective Time Holder
for any act done or omitted hereunder as Stockholders’ Agent while acting in
good faith and in the exercise of reasonable judgment, and any act done or
omitted pursuant to the advice of counsel shall be conclusive evidence of such
good faith. The Effective Time Holders shall jointly and severally indemnify
the Stockholders’ Agent and hold him harmless against any loss, liability or
expense incurred without gross negligence or bad faith on the part of the
Stockholders’ Agent and arising out of or in connection with the acceptance or
administration of his duties hereunder.


 


11.2      Fees and Expenses. 
Each party to this Agreement shall bear and pay all fees, costs and
expenses (including legal fees and accounting fees) that have been incurred or
that are incurred by such party in connection with the Transactions, including
all fees, costs and expenses incurred by such party in connection with or by
virtue of: (a) the investigation and review conducted by Parent and its
Representatives with respect to the Company’s business (and the furnishing of
information to Parent and its Representatives in connection with such
investigation and review); (b) the negotiation, preparation and review of
this Agreement (including the Disclosure Schedule) and all agreements,
certificates, opinions and other instruments and documents delivered or to be
delivered in connection with the Transactions, (c) the preparation and
submission of any filing or notice required to be made or given in connection
with any of the Transactions, and the obtaining of any consent required to be
obtained in connection with any of such transactions; and (d) the
consummation of the Merger.  In the case
of the Company, all Company Transaction Expenses shall be deducted from the
amount otherwise payable as the Merger Consideration under this Agreement.


 


11.3      Notices.  Any notice or
other communication required or permitted to be delivered to any party under
this Agreement shall be in writing and shall be deemed properly delivered,
given and received when delivered (by hand, by registered mail, by courier or
express delivery service or by facsimile) to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto):


 


49

















 


	
  if to Parent or Merger Sub:

  	
  Lawson Software
  Americas, Inc.

  
	
   

  	
  380 St. Peter
  Street

  
	
   

  	
  St. Paul, MN
  55102

  
	
   

  	
  Attention:
  General Counsel

  
	
   

  	
   

  
	
  with a copy (which shall not constitute notice)
  to:

  	
  Gray, Plant,
  Mooty, Mooty & Bennett, P.A.

  500 IDS Center

  
	
   

  	
  80 South Eighth
  Street

  
	
   

  	
  Minneapolis, MN
  55402

  
	
   

  	
  Attn: Mark D.
  Williamson, Esq.

  
	
   

  	
   

  
	
  if to the Company:

  	
  Quovadx
  Holdings, Inc.

  
	
   

  	
  5030 Riverside
  Drive

  
	
   

  	
  Suite 300

  
	
   

  	
  Irving, TX 75039

  
	
   

  	
  Attention:
  President

  
	
   

  	
   

  
	
  if to the Stockholders’ Agent:

  	
  R. David Tabors

  
	
   

  	
  Battery Ventures
  VII, L.P.

  
	
   

  	
  Reservoir Woods

  
	
   

  	
  930 Winter
  Street

  
	
   

  	
  Suite 2500

  
	
   

  	
  Waltham, MA
  02451

  
	
   

  	
   

  
	
  with a copy (which shall not constitute notice)
  to:

  	
  Cooley Godward
  Kronish LLP

  500 Boylston Street

  
	
   

  	
  Boston, MA 02116

  
	
   

  	
  Attention:
  Alfred L. Browne, Esq.

  



 


11.4      Time of the Essence. 
Time is of the essence of this Agreement.


 


11.5      Headings.  The underlined
headings contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred to
in connection with the construction or interpretation of this Agreement.


 


11.6      Counterparts; Facsimile Signature Pages. 
This Agreement may be executed in several counterparts, each of which
shall constitute an original and all of which, when taken together, shall
constitute one agreement.  Facsimile
signature pages of the parties will have the full force and effect as
originals under this Agreement.


 


11.7      Governing Law. 
This Agreement shall be construed in accordance with, and governed in
all respects by, the internal laws of the State of Delaware (without giving
effect to principles of conflicts of laws).


 


11.8      Successors and Assigns. 
This Agreement shall be binding upon: the Company and its successors and
assigns (if any); Parent and its successors and assigns (if any); Merger Sub 


 


50

















 


and its successors and
assigns (if any); and the Stockholders’ Agent (pursuant to Section 11.1)
and its successors and assigns (if any). 
This Agreement shall inure to the benefit of the parties, the
Indemnitees and the respective successors and assigns (if any) of the
foregoing.  No party may assign either
this Agreement or any of its rights, interests or obligations under this
Agreement without the prior written approval of the other parties, except that
Parent may, without the consent of any other party, (a) assign any or all
of its rights and interests hereunder to one or more of its Affiliates, (b) following
the Closing, designate one or more of its Affiliates to perform its obligations
under this Agreement, or (c) following the Closing, assign this Agreement
(or any of its rights or obligations hereunder) to a purchaser or acquirer of
all or substantially all of the business or assets of Parent, whether by
merger, reorganization, consolidation, amalgamation, sale of stock or assets (provided,
in each case, that no such assignment, transfer or delegation will relieve
Parent of its obligations hereunder).  Such
successor or assignee will have all rights of Parent under this Agreement,
including the right to enforce the covenants contained in this Agreement.


 


11.9      Remedies Cumulative; Specific Performance. 
The rights and remedies of the parties hereto shall be cumulative (and
not alternative).  The parties to this
Agreement agree that, in the event of any breach or threatened breach by any
party to this Agreement of any covenant, obligation or other provision set
forth in this Agreement for the benefit of any other party to this Agreement,
such other party shall be entitled (in addition to any other remedy that may be
available to it) to: (a) a decree or order of specific performance or
mandamus to enforce the observance and performance of such covenant, obligation
or other provision; and (b) an injunction restraining such breach or
threatened breach.


 


11.10    Amendments
and Waivers.


 


(a)               Any provision of this Agreement may be amended or
waived if, but only if: (i) at any time prior to the consummation of the
Closing, such amendment or waiver is in writing and is signed by Parent, the
Company and the Principal Stockholders; and (ii) if the Closing occurs, at
any time after the consummation of the Closing, such amendment or waiver is in
writing and is signed by Parent, the Principal Stockholders and the
Stockholders’ Agent (it being acknowledged and agreed that, after the Closing,
the Stockholders’ Agent may amend this Agreement and waive matters on behalf of
the Effective Time Holders, all as contemplated by Section 11.1).


 


(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 applicable Legal Requirement.


 


11.11    Severability.  Any term or
provision of this Agreement that is invalid or unenforceable in any situation
in any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other jurisdiction.  If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit the 


 


51

















 


term or provision, to
delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified.  In the event such court does not exercise the
power granted to it in the prior sentence, the parties hereto agree to replace
such invalid or unenforceable term or provision with a valid and enforceable
term or provision that will achieve, to the extent possible, the economic,
business and other purposes of such invalid or unenforceable term.


 


11.12    Parties in Interest. 
Except for the provisions of Sections 1.11, 6.3 and Section 9, none
of the provisions of this Agreement is intended to provide any rights or
remedies to any Person other than the parties hereto and their respective
successors and assigns (if any).


 


11.13    Construction.


 


(a)               For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.


 


(b)               The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of
this Agreement.


 


(c)               As used in this Agreement, the words “include” and “including,”
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words “without limitation.”


 


(d)               All monetary amounts listed in this Agreement are
expressed in United States dollars.


 


(e)               Except as otherwise indicated, all references in this
Agreement to “Sections” and “Exhibits” are intended to refer to
Sections of this Agreement and Exhibits to this Agreement.


 


11.14    Entire Agreement. 
This Agreement and the other agreements referred to herein set forth the
entire understanding of the parties hereto relating to the subject matter
hereof and thereof and supersede all prior agreements and understandings among
or between any of the parties relating to the subject matter hereof and
thereof; provided, however, that the Mutual
Non-Disclosure Agreement executed on behalf of Parent on June 26, 2009 and
the Company on June 18, 2009 (the “Existing NDA”)
shall not be superseded by this Agreement and shall remain in effect in
accordance with its terms until the earlier of: (a) the Effective Time; or
(b) the date on which such Existing NDA is terminated in accordance with
its terms.


 


[Remainder of Page Intentionally
Left Blank]


 


52

















 


The parties hereto have caused this Agreement and Plan of Merger to be
executed and delivered as of January 7, 2010.


 


	
   

  	
  LAWSON
  SOFTWARE AMERICAS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harry Debes

  
	
   

  	
  Name: 

  	
  Harry Debes

  
	
   

  	
  Title:

  	
  President and
  CEO

  
	
   

  	
   

  
	
   

  	
  HIGHWAY
  ACQUISITION, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harry Debes

  
	
   

  	
  Name: 

  	
  Harry Debes

  
	
   

  	
  Title:

  	
  President and
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  QUOVADX
  HOLDINGS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Russell
  Fleischer

  
	
   

  	
  Name: 

  	
  Russell
  Fleischer

  
	
   

  	
  Title:

  	
  Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  PRINCIPAL
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  BATTERY
  VENTURES VII, L.P.

  
	
   

  	
  By:

  	
  Battery Partners VII, LLC

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. David Tabors

  
	
   

  	
  Name:

  	
  R. David Tabors

  
	
   

  	
  Title:

  	
  Member Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTERY
  INVESTMENT PARTNERS VII, LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Battery Partners VII, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. David Tabors

  
	
   

  	
  Name:

  	
  R. David Tabors

  
	
   

  	
  Title:

  	
  Member Manager

  



 


[Signature page to Agreement and
Plan of Merger]


 

















 


	
   

  	
  IN HIS
  CAPACITY AS THE STOCKHOLDERS’ REPRESENTATIVE OF THE EFFECTIVE TIME HOLDERS
  PURSUANT TO SECTION 11.1

  
	
   

  	
   

  
	
   

  	
  R.
  DAVID TABORS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. David Tabors

  
	
   

  	
   

  	
  R. David Tabors, individually

  



 


The undersigned, Lawson Software, Inc. hereby
guarantees the performance and obligations of Parent under this Agreement,
including but not limited to (a) the obligation of Parent to pay the
Merger Consideration, and (b) the obligations of
Parent under this Agreement from and after the Closing. 
The obligations of Lawson Software, Inc. under this paragraph are
subject in all respects to all rights and defenses of Parent arising under this
Agreement and the contemplated transactions and will in all events terminate
following the Closing upon a purchaser acquiring all or substantially all of
the business or assets of Parent or Lawson Software, Inc., whether by
merger, reorganization, consolidation, amalgamation, sale of stock or assets.


 


	
   

  	
   

  
	
   

  	
  Lawson
  Software, Inc.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Harry Debes

  
	
   

  	
  Name: Harry
  Debes

  
	
   

  	
  Title: President
  and CEO

  



 


2
















 


EXHIBIT A


 


CERTAIN
DEFINITIONS


 


For purposes of the Agreement (including this Exhibit A):


 


“Accounting Convention”
shall mean GAAP; provided, however, that the
Interim Financials include certain adjustments to eliminate the effects
associated with application of purchase accounting, including, without
limitation, certain pro forma
adjustments to include deferred revenues that the Company Group would have
recognized under GAAP but for the related purchase accounting.


 


“Acquisition Transaction”
shall mean any transaction involving:


 


(a)           the sale, license, disposition or acquisition of all
or a material portion of the Company’s business or assets;


 


(b)           the issuance, disposition or acquisition of (i) any
capital stock or other equity security of the Company (other than common stock
issued to employees of the Company, upon exercise of Company Options or
otherwise, in routine transactions in accordance with the Company’s past
practices), (ii) any option, call, warrant or right (whether or not
immediately exercisable) to acquire any capital stock or other equity security
of the Company (other than stock options granted to employees of the Company in
routine transactions in accordance with the Company’s past practices), or (iii) any
security, instrument or obligation that is or may become convertible into or
exchangeable for any capital stock or other equity security of the Company; or


 


(c)           any merger, consolidation, business combination,
reorganization or similar transaction involving the Company.


 


“Affiliate”
when used with respect to any specified Person, shall mean any other Person who
or that, directly or indirectly through one or more intermediaries, Controls,
is Controlled by or is under common Control with such specified Person.


 


“Affiliated Group”
shall mean any affiliated group within the meaning of Code Section 1504(a) or
any similar group defined under a similar provision of any applicable Legal
Requirement.


 


“Business”
shall mean the business of the Company and its
Subsidiaries as conducted and proposed to be conducted on the date hereof.


 


“Code” shall
mean the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.


 


“Company Intellectual
Property” shall mean all Intellectual Property owned or held
under license by the Company and its Affiliates (including the Company’s
Subsidiaries) that is used or held for use in connection with, or related to or
necessary for, the operations of the 


 


A-1

















 


Business, wherever
located, including all Intellectual Property in the Company Products and all
tangible embodiments thereof.


 


“Company Option”
shall mean each outstanding option, whether or not then vested, to purchase
shares of Company Common Stock under the Company Option Plan.


 


“Company Option Plan”
means the 2008 Equity Incentive Plan of the Company.


 


“Company Product”
shall mean any product or service designed, developed, manufactured, marketed,
distributed, provided, licensed, or sold at any time by the Company.


 


“Contract”
shall mean any contract (written or oral), undertaking, commitment,
arrangement, plan or other legally binding agreement or understanding.


 


“Control”
shall mean, as to any Person, the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise. 
The term “Controlled” shall have a
correlative meaning.


 


“Damages”
shall mean all damages, losses, deficiencies, Liabilities, claims, actions,
demands, judgments, fines, fees, costs and expenses (including, without
limitation, reasonable attorneys’ and accountants’ fees), Taxes and interest on
any of the foregoing; provided, however,
that exemplary and punitive damages, as set forth in Section 9.6(h) shall
not be included in the definition of “Damages” and are, hereby, expressly
disclaimed.


 


“DGCL” shall
mean the General Corporation Law of the State of Delaware.


 


“DOJ” shall
mean the Antitrust Division of the United States Department of Justice.


 


“Escrow Agent”
shall mean Wells Fargo Bank, National Association  in
its capacity as Escrow Agent pursuant to the Escrow Agreement.


 


“Escrow Agreement”
means the escrow agreement to be entered into at the Closing, by and among the
Company, Parent, the Merger Sub, the Stockholders’ Agent and the Escrow Agent,
in the form attached hereto as Exhibit N.


 


“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.


 


“FTC” shall mean the United
States Federal Trade Commission.


 


“GAAP” shall
mean generally accepted accounting principles in the United States,
consistently applied.


 


“Governmental Body”
shall mean any: (a) nation,
state, commonwealth, province, territory, county, municipality, district or
other jurisdiction of any nature; (b) federal, state, local,
provincial, municipal, foreign or other government; or (c) governmental or
quasi-governmental authority of any nature (including any governmental
division, department, agency, commission, instrumentality, official,
organization, unit, body or other entity and any court or other tribunal).


 


A-2

















 


“Governmental Order”
means any order, writ, judgment, injunction, decree, stipulation,
determination, award or binding agreement issued, promulgated or entered by or
with any Governmental Body.


 


“HIPAA”
means the Health Insurance Portability and Accountability Act, as amended, and
including the Privacy and Security Regulations promulgated thereunder at 45
C.F.R. Parts 160 and 164 and also including the “HITECH” amendments related thereto.


 


“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.


 


“Indemnitee”
shall means any Parent Indemnitee or Stockholder Indemnitee, as applicable and
as the context requires.


 


“Intellectual Property”
shall mean all intellectual property and other similar proprietary rights in
any jurisdiction, whether owned or held for use under license, whether
registered or unregistered, including without limitation such rights in and to:
(a) trademarks, trade dress, service marks, certification marks, logos and
trade names, and the goodwill associated with the foregoing (collectively, “Trademarks”); (b) patents and
patent applications, and any and all divisions, continuations,
continuations-in-part, reissues, continuing patent applications, re-examinations,
and extensions thereof, any counterparts claiming priority therefrom, utility
models, patents of importation/confirmation, certificates of invention,
certificates of registration and like rights (collectively, “Patents”); (c) inventions,
invention disclosures, discoveries and improvements, whether or not patentable;
(d) writings and other works of authorship (“Copyrights”);
(e) trade secrets, non-public and confidential business, technical and
know-how information and rights to limit the use or disclosure thereof by any
Person (collectively, “Trade Secrets”);
(f) software, including without limitation data files, source code, object
code, application programming interfaces, databases and any other
software-related specifications and documentation (collectively, “Software”); (g) registered
domain names and uniform resource locators (“Domain
Names”); (h) moral rights; and (i) claims, causes of
action and defenses relating to the enforcement of any of the foregoing; in
each case, including any registrations of, applications to register, and
renewals and extensions of, any of the foregoing clauses (a) through (h) with
or by any Governmental Body in any jurisdiction.


 


“Knowledge”
shall mean, with respect to the Company or any other member of the Company
Group, the actual knowledge or the knowledge that would have been obtained
after reasonable investigation and inquiry of Russell Fleischer, Lauren Hill,
Daniel Turner, May Hu, Luc Gagnon, Michael Epplen and Carolyn Jolley, or
any of them.


 


“Legal Proceeding”
shall mean any action, suit, litigation, arbitration, proceeding (including any
civil, criminal, administrative, investigative or appellate proceeding),
hearing, inquiry, audit, examination or investigation commenced, brought,
conducted or heard by or before, or otherwise involving, any court or other
Governmental Body or any arbitrator or arbitration panel.


 


“Legal Requirement”
shall mean any federal, state, local, municipal, foreign or other law, statute,
constitution, principle of common law, resolution, ordinance, code, edict,
decree, 


 


A-3

















 


rule, regulation, ruling
or requirement issued, enacted, adopted, promulgated, implemented or otherwise
put into effect by or under the authority of any Governmental Body.


 


“Liability”
shall mean any debt, obligation, duty or liability of any nature (including any
unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect,
conditional, implied, vicarious, derivative, joint, several or secondary liability),
regardless of whether such debt, obligation, duty or liability would be
required to be disclosed on a balance sheet prepared in accordance with GAAP
and regardless of whether such debt, obligation, duty or liability is
immediately due and payable.


 


“Lien” shall
mean any lien (statutory or otherwise), mortgage, pledge, charge, option,
hypothecation, collateral assignment, encumbrance, security interest,
restriction or similar claim in equity of any kind or nature whatsoever, other
than Permitted Liens.


 


“made available”
shall mean that the Company has posted the materials in question prior to the
date of this Agreement, to the virtual data room managed by the Company on the Intralinks data site.


 


“Material Adverse Effect”
shall mean any change or effect that is reasonably likely to be materially
adverse to the business, operation, properties, assets, Liabilities, financial
condition or results of operations of the Company or the Surviving Corporation,
as applicable, and the Company’s Subsidiaries (taken as a whole) or on the
ability of the Company to timely consummate the Transactions; provided, however, that none of the following shall be
deemed to constitute, and none of the following (or the effects thereof) shall
be taken into account in determining whether there has been, a Material Adverse
Effect: any adverse change, event, development, or effect arising from or
relating to (i) general business or economic conditions applicable to the
United States economy as a whole, (ii) national or international political
or social conditions, including the engagement by the United States in
hostilities, whether or not pursuant to the declaration of a national emergency
or war, or the occurrence of any military or terrorist attack upon the United
States, or any of its territories, possessions, or diplomatic or consular
offices or upon any military installation, equipment or personnel of the United
States, (iii) financial, banking or securities markets (including any
disruption thereof and any decline in the price of any security or any market
index), (iv) changes in GAAP, (v) changes in Legal Requirements; or (vi) the
negotiation, execution and delivery of this Agreement, the identity or business
plans of the Parent or its Affiliates, or the announcement or consummation of
the Transactions, including any impact thereof on relationships, contractual or
otherwise, with customers, suppliers, distributors, partners or employees.


 


“Parent Indemnitees”
shall mean the following Persons: (a) Parent; (b) Parent’s current and future
Affiliates (including, after the Merger, the Surviving Corporation); (c) the
respective Representatives of the Persons referred to in clauses “(a)” and “(b)”
above; and (d) the
respective successors and assigns of the Persons referred to in clauses “(a)”, “(b)”
and “(c)” above; provided, however, that the
Effective Time Holders shall not be deemed to be “Parent
Indemnitees.”


 


“Permitted Liens”
shall mean (a) liens for Taxes, assessments or other governmental charges
not yet due and payable, (b) mechanics’, workmen’s, repairmen’s,
warehousemen’s, 


 


A-4

















 


carriers’ or other like
liens arising or incurred in the ordinary course of business if the underlying
obligations are not past due, (c) any interest or title of a lessor under
an operating lease or capitalized lease or of any licensor under a license (to
the extent such lease or license rights constitute a Lien under applicable
Law), (d) liens securing Company Debt, and (e) Liens created under
any Material Contract identified on Schedule 2.14 of the
Disclosure Schedule (but only to the extent such Liens are described
with specificity thereon).


 


“Person”
shall mean any individual, corporation, partnership, limited liability company,
joint venture, governmental agency or instrumentality, or any other entity.


 


“Personally Identifiable
Information” means any information that, alone or in combination
with other information, relates to a specific, identifiable individual Person,
including, without limitation, individual names, social security numbers (or
similar numbers issued by any Governmental Body), birth dates, telephone
numbers, home address, driver’s license number, account number, email address,
and vehicle registration number.  Any
information that can be associated with Personally Identifiable Information
shall also be Personally Identifiable Information.  For example, an individual’s age alone is not
Personally Identifiable Information, but if such age were capable of being
associated with one or more specific identifiable individuals then such age
would be deemed Personally Identifiable Information.


 


“Records”
shall mean all books, records, manuals and other materials and information of
the Company and its Subsidiaries including, without limitation, customer
records, personnel and payroll records, accounting records, purchase and sale
records, price lists, correspondence, quality control records and all research
and development files, wherever located.


 


“Representatives” shall mean
officers, directors, employees, agents, attorneys, accountants, advisors and
representatives.


 


“Securities Act” shall mean
the Securities Act of 1933, as amended.


 


“Specified Representations”
shall mean the representations and warranties of the Company set forth in Section 2.2
(Corporate Authorization), Section 2.3 (Subsidiaries), Section 2.4
(Capitalization), Section 2.11 (Title to Assets), Section 2.12
(Taxes), and Section 2.30 (Title to Shares) of this Agreement.


 


“Stockholder Indemnitees”
shall mean the following Persons: (a) the Effective Time Holders; (b) the
Effective Time Holders current and future Affiliates; (c) the respective
Representatives of the Persons referred to in clauses “(a)” and “(b)” above;
and (d) the respective successors and assigns of the Persons referred to
in clauses “(a)”, “(b)” and “(c)” above.


 


“Subsidiary”
of any Person shall mean any other Person of which (or in which) an amount of
the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its board of directors
or other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is at the time directly or indirectly owned
or Controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person’s other Subsidiaries.


 


A-5

















 


“Tax” and “Taxes”
means all federal, state, provincial, county, local, foreign and other taxes or
assessments of any nature whatsoever, including, without limitation, income,
gross income, estimated income, minimum, business, occupation, franchise,
property (real and personal), sales, goods and services taxes under the Excise
Tax Act (Canada) and the Taxation Act (Quebec), use, employment, recording,
customs, duty, environmental, social security, social welfare, pension,
medical, VAT, gross receipts, transfer, ad valorem, profits, license, capital,
payroll, withholding, unemployment, excise, goods and services, severance, stamp
and including interest, penalties and additions in connection therewith,
regardless of whether imposed directly or indirectly, as a successor or
transferee liability, as a several or a joint and several liability (including
pursuant to Treasury Regulation Section 1.1502-6 or similar provision of
applicable law) or by reason of a tax sharing, tax reimbursement or tax
indemnification agreement, by reason of a tax levy or otherwise.  “Taxable” shall have the correlative meaning.


 


“Taxing Authority”
shall mean any Governmental Body responsible for the administration or
imposition of any Tax.


 


“Tax Return”
shall mean any return (including any information return), report, statement,
declaration, estimate, schedule, notice, notification, form, election, certificate
or other document or information filed with or submitted to, or required to be
filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with
any Legal Requirement relating to any Tax.


 


“Transactions”
shall mean the Merger and the other transactions contemplated in the
Transaction Documents.


 


“Transaction Documents”
shall mean all of the agreements, documents, instruments and certificates
contemplated by this Agreement or to be executed by a party to this Agreement
in connection with the consummation of the Transactions.


 


A-6

















 


In addition to the foregoing defined terms, each of
the following terms is defined in the Section set forth opposite such
term:


 


	
  Term

  	
   

  	
  Section

  
	
  Aggregate Common
  Payment

  	
   

  	
  1.6(a)

  
	
  Aggregate
  Series A Payment

  	
   

  	
  1.6(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Applicable Per
  Share Merger Consideration

  	
   

  	
  1.6(a)

  
	
  Assumed Letters
  of Credit

  	
   

  	
  1.6(a)

  
	
  Audited
  Financial Statements

  	
   

  	
  2.7

  
	
  Basket Amount

  	
   

  	
  9.6(a)

  
	
  Certificate of
  Merger

  	
   

  	
  1.4

  
	
  Claim

  	
   

  	
  9.5(a)

  
	
  Claim Notice

  	
   

  	
  9.5(a)

  
	
  Claiming Party

  	
   

  	
  9.5(a)

  
	
  Closing

  	
   

  	
  1.3

  
	
  Closing Cash

  	
   

  	
  1.6(b)(iv)

  
	
  Closing Date

  	
   

  	
  1.3

  
	
  Closing Date
  Payees

  	
   

  	
  1.8(b)(vi)

  
	
  COBRA

  	
   

  	
  2.18(e)

  
	
  Common Stock
  Merger Consideration

  	
   

  	
  1.6(a)

  
	
  Company

  	
   

  	
  Preamble

  
	
  Company
  401(k) Plan

  	
   

  	
  4.10

  
	
  Company Capital
  Stock

  	
   

  	
  1.6(a)

  
	
  Company Charter

  	
   

  	
  1.6(a)

  
	
  Company Common
  Stock

  	
   

  	
  1.6(a)

  
	
  Company Debt

  	
   

  	
  1.6(a)

  
	
  Company Employee
  Plan

  	
   

  	
  2.18

  
	
  Company Group

  	
   

  	
  1.6(a)

  
	
  Company
  Preferred Stock

  	
   

  	
  1.6(a)

  
	
  Company Software

  	
   

  	
  2.15(h)

  
	
  Company Stock
  Certificate

  	
   

  	
  1.12

  
	
  Company
  Transaction Expenses

  	
   

  	
  1.6(a)

  
	
  Controlled Group

  	
   

  	
  2.18

  
	
  Copyrights

  	
   

  	
  Exhibit A

  
	
  Covered Matter

  	
   

  	
  9.7

  
	
  Cut-Off Date

  	
   

  	
  9.2

  
	
  Disclosure
  Schedule

  	
   

  	
  Section 2

  
	
  Disclosure
  Supplement

  	
   

  	
  5.1

  
	
  Dissenting
  Shares

  	
   

  	
  1.15(a)

  
	
  Dissenting Share
  Payments

  	
   

  	
  1.15(c)

  
	
  Domain Names

  	
   

  	
  Exhibit A

  
	
  Effective Time

  	
   

  	
  1.4

  
	
  Effective Time
  Holder

  	
   

  	
  1.6(a)

  
	
  Enterprise Value

  	
   

  	
  1.6(b)(i)

  
	
  Environmental
  Laws

  	
   

  	
  2.22

  



 


A-7

















 


	
  Term

  	
   

  	
  Section

  
	
  Environmental
  Liabilities

  	
   

  	
  2.22

  
	
  Escrow Amount

  	
   

  	
  1.7

  
	
  Escrow
  Contribution

  	
   

  	
  1.7

  
	
  Escrow
  Participants

  	
   

  	
  1.6(a)

  
	
  Escrow Period

  	
   

  	
  1.7

  
	
  Estimated Merger
  Consideration

  	
   

  	
  1.8(a)

  
	
  Estimated
  Statement

  	
   

  	
  1.8(a)

  
	
  Existing NDA

  	
   

  	
  11.14

  
	
  Final Merger
  Consideration

  	
   

  	
  1.9(e)

  
	
  Final Statement

  	
   

  	
  1.9(a)

  
	
  Financial
  Statements

  	
   

  	
  2.7

  
	
  Fleischer
  Release

  	
   

  	
  1.6(a)

  
	
  Fleischer
  Severance

  	
   

  	
  1.6(a)

  
	
  Hazardous
  Materials

  	
   

  	
  2.22

  
	
  Indebtedness

  	
   

  	
  1.6(a)

  
	
  Indemnifying
  Party

  	
   

  	
  9.5(a)

  
	
  Information
  Statement

  	
   

  	
  4.6(a)

  
	
  Insurance
  Policies

  	
   

  	
  2.16

  
	
  Interim
  Financial Statements

  	
   

  	
  2.7

  
	
  ISD Contribution
  Agreement

  	
   

  	
  2.8

  
	
  Leases

  	
   

  	
  2.10

  
	
  Material
  Contract

  	
   

  	
  2.14(a)

  
	
  Merger

  	
   

  	
  Recitals

  
	
  Merger
  Consideration

  	
   

  	
  1.6(b)

  
	
  Merger Sub

  	
   

  	
  Preamble

  
	
  Most Recent
  Balance Sheet

  	
   

  	
  2.7

  
	
  Non-Consenting
  Stockholders

  	
   

  	
  4.6(a)

  
	
  Objection Notice

  	
   

  	
  1.9(b)

  
	
  Option
  Consideration

  	
   

  	
  1.11(a)

  
	
  Option Proceeds

  	
   

  	
  1.6(a)

  
	
  Owned
  Intellectual Property

  	
   

  	
  2.15(a)

  
	
  Parent

  	
   

  	
  Preamble

  
	
  Parent
  401(k) Plan

  	
   

  	
  6.3

  
	
  Patents

  	
   

  	
  Exhibit A

  
	
  Payout Options

  	
   

  	
  1.6(a)

  
	
  Payout
  Spreadsheet

  	
   

  	
  1.6(a)

  
	
  Payout
  Spreadsheet Trial Run

  	
   

  	
  1.6(a)

  
	
  Permits

  	
   

  	
  2.17

  
	
  Pre-Closing
  Period

  	
   

  	
  4.1

  
	
  Pre-Closing Tax
  Period

  	
   

  	
  10.1

  
	
  Principal
  Stockholders

  	
   

  	
  Preamble

  
	
  Privacy
  Commitments

  	
   

  	
  2.27

  
	
  Pro Rata Share

  	
   

  	
  1.6(a)

  
	
  Publicly
  Available Software

  	
   

  	
  2.15(h)

  
	
  Real Property

  	
   

  	
  2.10(a)

  



 


A-8

















 


	
  Term

  	
   

  	
  Section

  
	
  Requisite
  Stockholder Vote

  	
   

  	
  2.2(b)

  
	
  Rights
  Agreements

  	
   

  	
  2.4(d)

  
	
  Scheduled
  Closing Date

  	
   

  	
  1.3

  
	
  Series A
  Merger Consideration

  	
   

  	
  1.6(a)

  
	
  Series A
  Preferred Stock

  	
   

  	
  1.6(a)

  
	
  Software

  	
   

  	
  Exhibit A

  
	
  Stockholder
  Written Consent

  	
   

  	
  Recitals

  
	
  Stockholders’
  Agent

  	
   

  	
  Preamble

  
	
  Stockholders’
  Agent Retention Account

  	
   

  	
  11.1(e)

  
	
  Straddle Period

  	
   

  	
  10.2

  
	
  Subsidiary
  Securities

  	
   

  	
  2.3(b)

  
	
  Support
  Agreements

  	
   

  	
  Recitals

  
	
  Surviving
  Corporation

  	
   

  	
  1.1

  
	
  Tax Claim

  	
   

  	
  9.5(e)

  
	
  Third-Party
  Claim

  	
   

  	
  9.5(a)

  
	
  Total
  Outstanding Common Shares

  	
   

  	
  1.6(a)

  
	
  Total
  Outstanding Series A Preferred Shares

  	
   

  	
  1.6(a)

  
	
  Trade Secrets

  	
   

  	
  Exhibit A

  
	
  Trademarks

  	
   

  	
  Exhibit A

  
	
  Transaction
  Expenses

  	
   

  	
  1.6(a)

  
	
  Working Capital

  	
   

  	
  1.6(a)

  
	
  Working Capital
  Baseline

  	
   

  	
  1.6(b)(v)

  



 


A-9
















 


EXHIBIT B


 


FORM OF
STOCKHOLDER WRITTEN CONSENT


 


ACTION BY
WRITTEN CONSENT


OF THE
SHAREHOLDERS


OF


QUOVADX
HOLDINGS, INC.


 


The undersigned stockholders of Quovadx Holdings, Inc.,
a Delaware corporation (the “Company”),
constituting (i) the holders of at least a majority of the issued and
outstanding shares of Series A Perpetual Preferred Stock, voting together
as a single class on an as converted basis and (ii) the holders of at
least a majority of the issued and outstanding shares of all series and classes
of capital stock of the Company, voting together as a single class on an as
converted basis, and constituting the requisite holders of the Company’s
capital stock pursuant to the Delaware General Corporation Law, the Certificate
of Incorporation of the Company, and the Company’s Bylaws, hereby consent with
respect to all shares of the Company’s capital stock owned by such stockholder,
pursuant to Section 228 of the Delaware General Corporation Law, and
hereby adopt and approve the following resolutions and the taking of the
actions referred to in such resolutions:


 


MERGER OF
COMPANY


 


WHEREAS, the Company’s Board of Directors (the “Board”) has considered the
transaction described in the Agreement and Plan of Merger dated as of January 7,
2010, in the form attached hereto as Exhibit A (the “Merger Agreement”) by and among the
Company, Lawson Software Americas, Inc., a Delaware corporation (“Parent”), Highway Acquisition, Inc.,
a Delaware Corporation and a direct wholly-owned subsidiary of Parent (“Merger Sub”), Battery Ventures VII,
L.P. and Battery Investment Partners VII, LLC in their capacity as the
Principal Stockholders and R. David Tabors in his capacity as the Stockholders’
Agent;


 


                WHEREAS,
pursuant to the
Merger Agreement, Merger Sub will be merged with and into the Company, with the
Company surviving as a direct or indirect wholly-owned subsidiary of Parent
(the “Merger”); and


 


                WHEREAS,
the Board, by
written consent, has (i) declared that the Merger Agreement is advisable
and in the best interest of the Company and its stockholders, (ii) has
authorized, approved and adopted the Merger Agreement and the transactions and
agreements contemplated thereby, and (iii) has directed that the Merger
Agreement be submitted to the stockholders of the Company for their approval.


 


NOW, THEREFORE, BE IT


 


                RESOLVED,
that, in
accordance with Section 251(c) of the Delaware General Corporation
Law, the terms of the Merger and the Merger Agreement and the transactions
contemplated thereby be, and hereby are, authorized, adopted and approved in
all respects; and


 

















 


                RESOLVED
FURTHER, that any
officer of the Company (the “Authorized Officers”),
be, and each of them acting singly hereby is, directed to make, execute and
acknowledge all such agreements, certifications, instruments and other
documents and to take such other actions, required by, contemplated by or
related to the Merger and the Merger Agreement as they or any of them shall
determine to be necessary or appropriate to carry out the purpose of the
foregoing resolutions; and the execution and delivery of any agreement,
certificate, instrument, or other document, and that the taking of any such
other action by any of them, shall be conclusive evidence that the same was
authorized and approved hereby and the taking of any such actions prior to the
date of this consent is hereby ratified and confirmed.


 


STOCKHOLDERS’
AGENT


 


                RESOLVED,
that R. David
Tabors be, and hereby is, appointed to serve as the Stockholders’ Agent (as
defined in the Merger Agreement); and that the Stockholders’ Agent is hereby
appointed as an agent and attorney-in-fact for and on behalf of each of the
undersigned stockholders of the Company in connection with the transactions
contemplated by the Merger Agreement, the Escrow Agreement (as defined in the
Merger Agreement) and any letters of transmittal to be provided by the
stockholders of the Company in connection with the Merger, and that the
Stockholders’ Agent shall have the power and authority to act on behalf of each
of the undersigned stockholders as set forth in the Merger Agreement.


 


SERIES A
PREFERRED STOCK WAIVER


 


                WHEREAS, Section 5.2(a) of the
Certificate of Incorporation of the Company requires the written consent of the
holders of at least fifty percent (50%) of the then outstanding shares of Series A
Preferred Stock of the Company (the “Requisite Series A
Vote”), voting as a separate class to effect a Deemed
Liquidation Event (as defined in the Certificate of Incorporation of the
Company); and


 


                WHEREAS, the
Merger constitutes a Deemed Liquidation Event.


 


NOW, THEREFORE, BE IT


 


RESOLVED, that, the undersigned being holders of the Requisite Series A
Vote, hereby approve, authorize and adopt the terms of the Merger and the
Merger Agreement and waive all notice requirements set forth in the Certificate
of Incorporation of the Company.


 


TERMINATION
OF OPTION PLAN


 


                RESOLVED,
that, effective
and contingent upon the consummation of the Merger, the 2008 Equity Incentive
Plan, as amended, shall be terminated and all outstanding options and
commitments to issue options thereunder be terminated.


 


TERMINATION
OF STOCKHOLDER AGREEMENT


 


                RESOLVED,
that, effective
and contingent upon the consummation of the Merger, that certain Stockholder
Agreement dated August 23, 2007, by and among the Company and 


 

















 


certain stockholders of
the Company, be, and it hereby is, terminated and it shall have no further
force and effect.


 


GENERAL
AUTHORIZING RESOLUTION


 


RESOLVED, that the Authorized Officers be, and they
hereby are, and each of them singly be, and hereby is, authorized to execute
and deliver all such instruments, notices or certificates, make all such
payments, make all such filings pursuant to state laws or otherwise (and any
such filings heretofore made are hereby ratified), and do all such other acts
and things as in their opinion, or in the opinion of any of them, may be
necessary, desirable, convenient or appropriate and consistent with the best
interest of the Company in order to carry out the intent and purposes of the
foregoing resolutions and that all such acts and things heretofore done by the
authorized officers of the Company, or any one or more of them acting, in
connection with and in furtherance of the purposes and intent of the foregoing
resolutions be, and they hereby are, ratified, confirmed and approved.


 


RATIFICATION




                RESOLVED,
that any prior
acts of the Company’s directors and officers, acting in their capacities as
directors or officers, as applicable, or their appointed agents and the prior
acts of each of them, acting by and for the benefit of the Company, be and
hereby are ratified, confirmed and approved in all respects.


 


This written consent shall take effect immediately as of the date first
above written and shall be filed in the minute book of the Company with the
minutes of the meetings of the stockholders. This written consent may be
executed in one or more counterparts, each of which shall constitute an
original hereof but all of which shall be deemed one and the same instrument.


 


[SIGNATURE PAGES FOLLOW]


 

















 


                IN
WITNESS WHEREOF,
the undersigned have executed this Action by Written Consent as of the date
indicated below.


 


 


	
  BATTERY
  VENTURES VII, L.P.

  	
   

  
	
   

  	
   

  
	
  By: Battery
  Ventures VII, LLC

  	
   

  
	
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  R. David Tabors

  	
   

  
	
   

  	
  Member Manager

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BATTERY INVESTMENT PARTNERS VII, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Battery Partners
  VII, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  R. David Tabors

  	
   

  
	
   

  	
  Member Manager

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Russell Fleischer

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Mike Epplen

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Carolyn Jolley

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  



 

















 


	
   

  	
   

  
	
  Jeff Tognoni

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  May Hu

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Lauren Hill

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Paul Bellamy

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Jim Elder

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  



 

















 


EXHIBIT A


 


Merger Agreement


 

















 


EXHIBIT C


 


FORM OF
CERTIFICATE OF MERGER


 


STATE OF
DELAWARE


CERTIFICATE
OF MERGER OF


DOMESTIC
CORPORATION INTO


DOMESTIC
CORPORATION


 


Pursuant to Title
8, Section 251 of the Delaware General Corporation Law, the undersigned
corporation executed the following Certificate of Merger:


 


FIRST: 
The name of the surviving corporation is Quovadx Holdings, Inc., a
Delaware corporation, and the name of the corporation being merged into the
surviving corporation is Highway Acquisition, Inc., a Delaware
corporation.


 


SECOND: 
The Agreement and Plan of Merger dated January 7, 2010 (the “Merger Agreement”), has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Title 8, Section 251 of the Delaware General Corporation Law.


 


THIRD: 
The name of the surviving corporation is Quovadx Holdings, Inc., a
Delaware corporation.


 


FOURTH: 
That certain amendments to the certificate of incorporation of the
surviving corporation are desired to be effected by the merger and, as such,
the amended and restated certificate of incorporation of the surviving
corporation is attached hereto as Attachment A.


 


FIFTH: 
The executed Merger Agreement is on file at 380 St. Peter Street, St.
Paul, Minnesota 55102, a place of business of the surviving corporation.


 


SIXTH:  A
copy of the Merger Agreement will be furnished by the surviving corporation, on
request and without cost, to any stockholder of any constituent corporation.


 


[Signature
Page Follows]


 

















 


                IN WITNESS
WHEREOF, said surviving corporation has caused this certificate to
be signed by an authorized officer, the       
day of January, 2010.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
  Name:

  



 

















 


ATTACHMENT A


 


AMENDED
AND RESTATED


 


CERTIFICATE
OF INCORPORATION


 


OF


 


QUOVADX
HOLDINGS, INC.


 


ARTICLE
1


Name


 


The name of this corporation is Quovadx Holdings, Inc.


 


ARTICLE 2


Registered
Office and Agent


 


The address of the corporation’s registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle.  The name of
its registered agent at such address is The Corporation Trust
Company.


 


ARTICLE 3


Purpose


 


The purpose of the corporation is to engage in any lawful activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.


 


ARTICLE 4


Authorized
Capital


 


The total number of shares which the corporation shall have authority
to issue is 1,000 shares of common stock, $.0001 par value.


 


ARTICLE 5


Amendment of Bylaws


 


The Board of Directors of the corporation is expressly authorized to
make, alter or repeal bylaws of the corporation, but the stockholders may make additional
bylaws and may alter or repeal any bylaw whether adopted by them or otherwise.


 


ARTICLE 6


Election of Directors


 


Election of directors need not be by written ballot except and to the
extent provided in the bylaws of the corporation.


 

















 


ARTICLE 7


Indemnification of Directors and Officers


 


The corporation shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to any action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he or she is or was a director, officer or employee of the corporation or
any predecessor of the corporation or serves or served any other enterprise as
a director, officer or employee at the request of the corporation or any
predecessor of the corporation.


 


ARTICLE 8


Elimination
of Monetary Liability


 


To the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same now exists or may
hereafter be amended in a manner more favorable to directors, a director of the
Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.


 
















 


EXHIBIT D


 


FORM OF
CERTIFICATE OF INCORPORATION


OF THE
SURVIVING CORPORATION


 


AMENDED
AND RESTATED


 


CERTIFICATE
OF INCORPORATION


 


OF


 


QUOVADX
HOLDINGS, INC.


 


ARTICLE
1


Name


 


The name of this corporation is Quovadx Holdings, Inc.


 


ARTICLE 2


Registered
Office and Agent


 


The address of the corporation’s registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle.  The name of
its registered agent at such address is The Corporation Trust
Company.


 


ARTICLE 3


Purpose


 


The purpose of the corporation is to engage in any lawful activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.


 


ARTICLE 4


Authorized
Capital


 


The total number of shares which the corporation shall have authority
to issue is 1,000 shares of common stock, $.0001 par value.


 


ARTICLE 5


Amendment of Bylaws


 


The Board of Directors of the corporation is expressly authorized to
make, alter or repeal bylaws of the corporation, but the stockholders may make additional
bylaws and may alter or repeal any bylaw whether adopted by them or otherwise.


 

















 


ARTICLE 6


Election of Directors


 


Election of directors need not be by written ballot except and to the
extent provided in the bylaws of the corporation.


 


ARTICLE 7


Indemnification of Directors and Officers


 


The corporation shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to any action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he or she is or was a director, officer or employee of the corporation or
any predecessor of the corporation or serves or served any other enterprise as
a director, officer or employee at the request of the corporation or any
predecessor of the corporation.


 


ARTICLE 8


Elimination
of Monetary Liability


 


To the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same now exists or may
hereafter be amended in a manner more favorable to directors, a director of the
Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.


 

















 


EXHIBIT E


 


LIST OF
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION


 


Officers:


 


Harry Debes —
President and Chief Executive Officer


Stefan Schulz —
Chief Financial Officer


Heidi Weiler —
Treasurer


Dean Hager —
Executive Vice President


James Catalino —
Senior Vice President


Bruce McPheeters -
Secretary


 


Directors:


 


Harry Debes


Stefan Schulz


 

















 


EXHIBIT F


 


ASSUMED
LETTERS OF CREDIT


 


	
  ISSUING BANK

  	
   

  	
  BENEFICIARY

  	
   

  	
  AMOUNT

  	
   

  	
  EXPIRATION DATE

  
	
  Wells Fargo
  Foothill

  	
   

  	
  J.D. Molex One
  LLC

  1484 Saratoga Avenue

  Saratoga, CA 95070

  	
   

  	
  $20,000 USD

  	
   

  	
  June 1,
  2010 with an automatic annual renewal until they are given notice (upon lease
  expiration - August 31, 2015).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo
  Foothill

  	
   

  	
  Douglas Emmett
  2000, LLC

  c/o Douglas, Emmett and Company

  808 Wilshire Boulevard, Suite 200

  Santa Monica, CA 90401

  	
   

  	
  $41,000 USD

  	
   

  	
  July 1,
  2010 with an automatic annual renewal until they are given notice (upon lease
  expiration -April 30, 2010).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo
  Foothill

  	
   

  	
  Toronto Dominion
  Bank for:

  CENTRE RÉGIONAL DES ACHATS EN GROUPE

  des Établissements de santé et de services sociaux

  du Saguenay-Lac-St-Jean (02)

  305, St-Vallier, C.P. 5006

  Chicoutimi, (Québec) G7H 5H6

  	
   

  	
  $353,835 CAD

  	
   

  	
  February 15,
  2011 at 16:00, however, the bond may be renewed annually upon request by
  Seller until February 15, 2013. Prior to the expiry of the bond, if
  Seller fails to give a minimum of 30-day notice to the Bank of its desire to
  renew these guarantees, the bond will expire without notice to the Recipient.

  



 

















 


EXHIBIT G


 


PAYOUT
SPREADSHEET TRIAL RUN


 


 


Payoff Spreadsheet Trial
Run


(Based on an Assumed Closing of
1/11/2010)


 


	
  Enterprise
  Value

  	
   

  	
  160,000,000.00

  	
   

  
	
  minus: Company Debt

  	
   

  	
  (82,074,686.14

  	
  )

  
	
  minus: Company Transaction Expenses

  	
   

  	
  (3,589,250.00

  	
  )

  
	
  plus: Cash

  	
   

  	
  10,000,000.00

  	
   

  
	
  minus: Working Capital adjustment (If any)

  	
   

  	
  0.00

  	
   

  
	
  Merger
  Consideration

  	
   

  	
  84,336,063.86

  	
   

  
	
  plus: Option Proceeds

  	
   

  	
  128,351.97

  	
   

  
	
  minus: Aggregate Series A Payment

  	
   

  	
  (27,267,878.13

  	
  )

  
	
  Aggregate
  Common Payment

  	
   

  	
  57,196,537.70

  	
   

  
	
  Total
  Outstanding Common Shares

  	
   

  	
  19,917,907

  	
   

  
	
  Common
  Stock Merger Consideration

  	
   

  	
  $

  	
  2.87161

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Escrow
  (%)

  	
   

  	
  10.00

  	
  %

  
	
  Escrow
  Fund

  	
   

  	
  $

  	
  16,000,000

  	
   

  
	
  Stockholder
  Rep Retention

  	
   

  	
  $

  	
  25,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Effective
  Escrow Percentage

  	
   

  	
  18.9717

  	
  %

  
	
  Effective
  Retention Percentage

  	
   

  	
  0.0296

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Merger
  Consideration (with Option Proceeds)

  	
   

  	
  84,464,416

  	
   

  



 


Per Share
Calculations


 


	
   

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  2

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Common

  	
   

  	
  Series A

  	
   

  	
  Series A

  	
   

  	
   

  	
   

  
	
  Payment
  Amt (Per Class)

  	
   

  	
  $

  	
  2.87161

  	
   

  	
  $

  	
  12.17404

  	
   

  	
  $

  	
  11.14748

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aggregate
  Dividend Amount

  	
   

  	
   

  	
   

  	
  3,874,140

  	
   

  	
  573,738

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Per
  Share Dividend Amount

  	
   

  	
   

  	
   

  	
  $

  	
  2.17404

  	
   

  	
  $

  	
  1.14748

  	
   

  	
   

  	
   

  
	
  Aggregate
  Perf Amt (incl. div)

  	
   

  	
   

  	
   

  	
  21,694,140

  	
   

  	
  5,573,738

  	
   

  	
  84,464,415.83

  	
   

  
	
  Total
  Return

  	
   

  	
  57,196,537.70

  	
   

  	
  21,694,140

  	
   

  	
  5,573,738

  	
   

  	
   

  	
   

  
	
  Shares

  	
   

  	
  19,917,907.00

  	
   

  	
  1,782,000

  	
   

  	
  500,000

  	
   

  	
   

  	
   

  
	
  Check
  - Payment Amt

  	
   

  	
  2.871613855

  	
   

  	
  12.1740

  	
   

  	
  11.1475

  	
   

  	
   

  	
   

  
	
  % of
  Merger Consideration

  	
   

  	
  67.82

  	
  %

  	
  25.72

  	
  %

  	
  6.61

  	
  %

  	
   

  	
   

  
													



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total
  Payout,

  	
   

  	
  Total
  Payout,

  	
   

  	
  Escrow

  	
   

  	
   

  	
   

  	
  Payout @

  	
   

  	
  Closing
  Date

  	
   

  	
  Pro Rata

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  	
  Series A
  (1)

  	
   

  	
  Series A
  (2)

  	
   

  	
  Common

  	
   

  	
  Gross

  	
   

  	
  Net

  	
   

  	
  Contribution

  	
   

  	
  Retention

  	
   

  	
  Closing

  	
   

  	
  Payee

  	
   

  	
  Share

  	
   

  
	
  1

  	
   

  	
  Battery Ventures VII,
  L.P.

  	
   

  	
  21,286,290.15

  	
   

  	
  5,468,951.87

  	
   

  	
  50,717,295.25

  	
   

  	
  77,472,537.28

  	
   

  	
  77,472,537.28

  	
   

  	
  15,157,020.62

  	
   

  	
  23,682.84

  	
   

  	
  62,291,833.81

  	
   

  	
  Yes

  	
   

  	
  91.86

  	
  %

  
	
  2

  	
   

  	
  Battery Investment
  Partners VII, LLC

  	
   

  	
  407,849.83

  	
   

  	
  104,786.28

  	
   

  	
  971,754.13

  	
   

  	
  1,484,930.24

  	
   

  	
  1,484,390.24

  	
   

  	
  290,411.73

  	
   

  	
  453.77

  	
   

  	
  1,193,524.74

  	
   

  	
  Yes

  	
   

  	
  1.76

  	
  %

  
	
  3

  	
   

  	
  Russell Fleischer

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  2,824,355.71

  	
   

  	
  2,824,355.71

  	
   

  	
  2,824,355.71

  	
   

  	
  552,567.65

  	
   

  	
  863.39

  	
   

  	
  2,270,924.67

  	
   

  	
  Yes

  	
   

  	
  3.35

  	
  %

  
	
  4

  	
   

  	
  Mike Epplen

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  564,872.29

  	
   

  	
  564,872.29

  	
   

  	
  564,872.29

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  564,872.29

  	
   

  	
  Yes

  	
   

  	
  0.67

  	
  %

  
	
  5

  	
   

  	
  Carolyn Jolley

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  423,652.06

  	
   

  	
  423,652.06

  	
   

  	
  423,652.06

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  423,652.06

  	
   

  	
  Yes

  	
   

  	
  0.50

  	
  %

  
	
  6

  	
   

  	
  Jeff Tognoni

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  423,652.06

  	
   

  	
  423,652.06

  	
   

  	
  423,652.06

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  423,652.06

  	
   

  	
  Yes

  	
   

  	
  0.50

  	
  %

  
	
  7

  	
   

  	
  May Hu

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  282,434.71

  	
   

  	
  282,434.71

  	
   

  	
  282,434.71

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  282,434.71

  	
   

  	
  Yes

  	
   

  	
  0.33

  	
  %

  
	
  8

  	
   

  	
  Lauren Hill

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  Yes

  	
   

  	
  0.17

  	
  %

  
	
  9

  	
   

  	
  Paul Bellamy

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  Yes

  	
   

  	
  0.17

  	
  %

  
	
  10

  	
   

  	
  Jim Elder

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  141,217.35

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  141,217.35

  	
   

  	
  Yes

  	
   

  	
  0.17

  	
  %

  
	
  11

  	
   

  	
  Lue Gagnon

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  329,232.22

  	
   

  	
  423,652.06

  	
   

  	
  329,232.22

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  329,232.22

  	
   

  	
  Yes

  	
   

  	
  0.39

  	
  %

  
	
  12

  	
   

  	
  Ian Carmichael

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  107,285.22

  	
   

  	
  141,217.35

  	
   

  	
  107,285.22

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  107,285.22

  	
   

  	
  Yes

  	
   

  	
  0.13

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
  21,694,139.98

  	
   

  	
  5,573,738.15

  	
   

  	
  57,068,185.73

  	
   

  	
  84,464,415.83

  	
   

  	
  84,336,063.86

  	
   

  	
  16,000.000.00

  	
   

  	
  25,000.00

  	
   

  	
  68,311,063.86

  	
   

  	
   

  	
   

  	
  100.00

  	
  %

  



 
















 


EXHIBIT H


 


FORM OF
FLEISCHER RELEASE


 


SEPARATION
AGREEMENT, WAIVER, AND RELEASE


 


This Separation Agreement, Waiver, and Release (“Agreement”) is made
and entered into the          day of
January, 2010 by and among Russell Fleischer (“Employee”); Quovadx Holdings, Inc.
(the “Company”); and Lawson Software Americas, Inc. (“Lawson”).


 


WHEREAS, Employee has been employed with the Company as its CEO
pursuant to a letter agreement dated June 4, 2007 (the “Offer Letter”);


 


WHEREAS, Lawson acquired the Company by means of reverse triangular
merger (the “Merger”) effective as of the date hereof, pursuant to the terms of
that certain Agreement and Plan of Merger dated as of January 7, 2010 (the
“Merger Agreement”) by and among Lawson, the Company and the other parties
thereto (capitalized terms used herein, unless otherwise defined herein, shall
have the meanings ascribed to them in the Merger Agreement);


 


WHEREAS, Lawson has informed the Employee that it is unable to identify
a position for him within Lawson after the Merger;


 


WHEREAS, effective as of the date hereof, Employee’s employment and
position as an officer with the Company has terminated;


 


WHEREAS, pursuant to this Agreement, the Company has agreed to provide
certain severance benefits to Employee (in lieu of the payment of any amounts
or other benefits pursuant to the Offer Letter); and


 


WHEREAS, in consideration of this Agreement, and subject to the terms
and conditions hereof, Employee has agreed to provide the Company and Lawson
with a full release of any and all claims that Employee has or may have against
the Company, Lawson, and any of their predecessors, affiliates, successors and
assigns, in return for providing the benefits set forth in this Agreement.


 


NOW, THEREFORE, in consideration of the mutual promises and covenants
established in this Agreement, the parties agree as follows:


 


I.              SEVERANCE BENEFITS.


 


The Company agrees to pay the following amounts to Employee, subject to
the rescission provisions of Section X:


 


A.            The Company will pay to Employee the sum
of $275,000, less applicable payroll deductions, and this sum shall be payable
on the next business day following the expiration of the 7-day rescission
period as described in Section X, in consideration of the release set
forth in Section II(A) below.


 


B.            The Company will pay to Employee the sum
of $50,000, less applicable payroll deductions, and this sum shall be payable
on the next business day following the expiration of the 7-day rescission
period as described in Section X, in consideration of the release set
forth in Section II(B).


 


C.            The Company will pay to Employee the sum
of $20,000, less applicable payroll deductions, representing the cash value of
one (1) year of benefits continuation for Employee in consideration of the
release set forth in Section II(A).   Employee understands that he shall receive no
other benefits and shall no longer participate in the Company’s benefit plans
except as provided in the terms and provisions of such plans and further
subject to any legal requirements requiring election to continue coverage (as
in the case of group health plans) as allowed by state and federal benefits
continuation laws.  All of Employee’s
rights under such plans shall be governed in 


 

















 


accordance with
the terms of such plans.  Employee acknowledges
receipt of applicable summary plan descriptions relating to such plans.  Employee is responsible for making all
premium payments or other payment charges for continuation of such benefits.  (The amounts set forth in Sections I(A), I(B) and
I(C) are sometimes referred to herein as the “Severance Benefits”.)


 


D.            Employee also understands that Employee
will receive the Severance Benefits set forth above only if Employee signs this
Agreement and does not rescind it within the seven (7) day rescission
period provided for in Section X. 
If, however, this Agreement is rescinded, then the Offer Letter shall
remain in full force and effect and shall not be superseded by this
Agreement.  Employee represents that
Employee is not a party to a pending personal bankruptcy, and that Employee is
legally able and entitled to receive the money being paid to Employee by the
Company.


 


E.             On the date hereof, the Company agrees to
pay the following amounts to Employee:


 


1.             Accrued Base Salary.   The Company will pay to Employee the sum of
[$            ],
less applicable payroll deductions, representing Employee’s accrued (but
unpaid) base salary for the period from [Last Payroll Date] through the Closing
Date.


 


2.             Vacation. 
The Company will pay to Employee all earned but unused vacation through
the Employee’s last day of employment.


 


3.             Business Expense Reimbursement. 
Prior the Closing Date, Employee has submitted all requests for
reimbursements of business expenses and has received reimbursements for all
such expenses.


 


4.             Bonus.  The Company will pay to Employee
the sum of $150,000, less applicable payroll deductions, representing any and
all bonuses to Employee.


 


F.             No Other Payments.  Employee acknowledges that, upon
payment of the Severance Benefits and the amounts pursuant to Section I(E),
the Company will have paid him his full salary and any bonus or other benefit
earned by him through his last day of employment.


 


II.            RELEASE OF CLAIMS.


 


A.            In return for the benefits listed in
Sections I(A) and I(C) above, subject to rescision provisions of Section X,
Employee, on behalf of Employee, Employee’s heirs, executors, family members,
beneficiaries, assignees, administrators, successors, and executors or anyone
acting or claiming to act on Employee’s behalf, hereby releases and forever
discharges, in full and final settlement, the Company, Lawson and all of their
predecessors and successors, and all of Lawson’s, the Company’s and their
predecessors’ and successors’ respective divisions, parents, subsidiaries,
affiliated organizations, companies, foundations, and other corporations as
well as past and present employees, agents, officials, officers, directors,
board members and representatives, both individually and in their
representative capacities (collectively, the “Released Parties”), from
any and all claims or causes of action of any type, both known or unknown,
asserted and unasserted, direct and indirect, and of any kind, nature, or
description whatsoever, under any local, state, or federal law(s), or the
common law of the State of Texas, arising or which may have arisen at any time
prior to the date of this Agreement. 
This release includes, but is not limited to, any and all claims arising
from Employee’s employment with the Company or any business entity related to
or acting on behalf of the Company, including claims arising under the Texas
Commission of Human Rights Act, the Texas Payday law, retaliation claims under
the Texas Workers Compensation Act, Title VII of the 1964 Civil Rights Act, as
amended, the Americans with Disabilities Act, the Fair Labor Standards Act, the
Family and Medical Leave Act, the Employee Retirement Income Security Act, and
any other local, state, or federal law(s) relating to illegal
discrimination in the workplace or other unlawful employment practices, as well
as any claims that Employee may have been wrongfully discharged, that a
employment contract has been breached, that Employee has been harassed or
otherwise treated unfairly during Employee’s employment, or that Employee has
been defamed in any fashion.  Subject to
the following paragraph, this release also includes any claims Employee may
have based arising out of or connected with (i) the transactions
contemplated by the Merger Agreement, (ii) Employee’s position as a
director, officer, employee, stockholder and/or optionholder of the Company, or
(iii) Employee’s ownership, transfer or conversion of any securities of
the Company (other than his right to receive the Applicable Per Share Merger 


 

















 


Consideration in
respect of his capital stock and including his right to receive his Escrow
Contribution, all in accordance with the Merger Agreement and the Escrow
Agreement (as defined in the Merger Agreement)).  This release also includes any claims for
libel or slander, claims for assault or battery, claims for infliction of
emotional distress whether intentional or negligent, claims of negligence
(including negligent hiring, negligent supervision, and negligent retention),
or any and all other claims arising out of Employee’s employment relationship
with the Company, Employee’s termination of employment with the Company, or
arising under the common law of any state. 
This release also includes any claims for attorney’s fees that Employee
has or may have had for any claim identified above.  Employee acknowledges that the severance
benefits set forth in Sections I(A) and I(C) above constitute
adequate consideration for this release.


 


Notwithstanding the foregoing, Employee does not hereby release any
claims for workers’ compensation (except for claims of retaliation which are
released) or unemployment compensation benefits or other claims that cannot by
law be released.  In addition, any 401(k) retirement
benefits, retirement, pension or other benefits that have accrued to Employee
and vested under the Company’s plans, are not released and will be paid or
otherwise handled in accordance with the terms of such plan (or plans) outside
of this Agreement.  In addition, Employee
does not hereby release any rights he may have under the Merger Agreement
(including his right to receive the Applicable Per Share Merger Consideration
(as defined therein) in respect of equity securities held by him and including
his Escrow Contribution, all in accordance with the Merger Agreement and the
Escrow Agreement) or any of the related Transaction Documents (as defined in
the Merger Agreement).


 


B.            In return for the benefits listed in Section I(B) above,
Employee, on behalf of Employee, Employee’s heirs, executors, family members,
beneficiaries, assignees, administrators, successors, and executors or anyone
acting or claiming to act on Employee’s behalf, hereby releases and forever
discharges the Released Parties from any and all claims or causes of action of
any type, both known and unknown, arising under or relating to the Age
Discrimination in Employment Act, as amended. 
Notwithstanding anything to the contrary in the foregoing, this
Agreement does not release any rights or claims Employee may have under the Age
Discrimination in Employment Act or any of the Company’s benefit plans which
arise after Employee signs this Agreement or which arise from acts occurring
after Employee signs this Agreement.


 


C.            Additionally, although Employee, pursuant
to this Agreement, is not releasing, waiving, or discharging Employee’s right
to file or be a witness in, a federal, state or local charge of discrimination,
Employee, on behalf of Employee and any and all heirs and assigns, hereby
knowingly, voluntarily and intentionally agrees to and does fully and finally
release and/or waive Employee’s right to receive compensation or monetary
relief from said charge(s).


 


III.           NON-ADMISSION.


 


It is understood and agreed that this Agreement does not constitute an
admission by the Company or Lawson or any of their predecessors or successors
of any liability, wrongdoing, or violation of any law.  Further, the Company and Lawson expressly
deny any wrongdoing of any kind whatsoever in their actions and dealings with
Employee.  Employee acknowledges and
agrees that the Company and Lawson have no obligation to hire or employ
Employee in the future.


 


IV.           CONFIDENTIALITY, NONDISPARAGEMENT
AND NO ASSISTANCE ADVERSE TO COMPANY.


 


A.            Confidentiality. 
In consideration of the promises set forth in Section I above,
Employee promises and represents that Employee will not personally, nor will
Employee authorize any other representative, employee, agent, or attorney
acting on Employee’s behalf to disclose, disseminate, or publicize, or permit
to be disclosed, disseminated, or publicized, any of the terms of this
Agreement to any outside third person except as may be required by law.  The term “person” utilized above shall
include individuals, corporations, partnerships, associations, subsidiaries,
divisions or government agencies. 
Notwithstanding the above, Employee may communicate information
regarding this Agreement to Employee’s spouse, personal legal counsel and tax
advisor, each of whom will first be advised of the confidential nature of this
Agreement, and each person who receives this confidential information shall be
directed not to disclose, disseminate or otherwise publicize its terms.


 

















 


B.            Nondisparagement. 
Employee covenants and agrees not to knowingly make any disparaging
remarks, either orally or in writing, regarding the Company, Lawson, or any of
their respective employees, officers or directors.  This Agreement does not restrict or prevent
Employee from (a) responding to or cooperating with any governmental
inquiry or investigation or (b) providing truthful testimony in any
deposition or proceeding.


 


C.            No Assistance Adverse to Company. 
In consideration of the payments to Employee under this Agreement,
Employee covenants and agrees to not hereafter contact, respond to or otherwise
knowingly assist in any manner, any employee or former employee of the Company
(or any parent, subsidiary, predecessor or successor) concerning any actual or
potential claims or legal actions against the Company (or any parent,
subsidiary, predecessor or successor), unless (a) compelled to do so by a
court of competent jurisdiction or (b) required to do so in writing by the
Equal Opportunity Employment Commission (EEOC), the Department of Human Rights
or another governmental agency.   Unless
prohibited by applicable law or regulation, Employee shall provide the Company’s
or Lawson’s current chief executive officer prompt written notice of any such
requested assistance that relates to the Company or its successor.  Nothing in this Agreement shall be construed
to prohibit Employee from participating in a charge before an administrative
body or entity for non-monetary relief.


 


V.            COMPANY CONFIDENTIAL INFORMATION.


 


Employee acknowledges his continuing obligations under his
Nondisclosure, Developments Agreement and Non-Solicit Agreement, a copy of
which is attached hereto as Exhibit A.


 


VI.           NON-SOLICITATION AND
NO-HIRE.


 


Employee covenants and agrees that for 12
months after the effective date of this Agreement, Employee will not directly
or indirectly solicit any employees of the Company or Lawson or any of their
respective subsidiaries or affiliates for the purpose of hiring them or
inducing them to leave employment with the Company or Lawson or any of their
subsidiaries or affiliates.


 


VII.         JOB REFERENCE AND NO RE-HIRE.


 


If
the Company or Lawson is contacted regarding a job reference for Employee, the
Company and Lawson agree only to give the dates of Employee’s employment and
the position held, except as otherwise required by law.  Employee agrees that Employee will not apply
for another position with the Company or Lawson and Employee will not be
eligible for re-hire.  Lawson agrees that
Lawson’s executive management will not knowingly make any disparaging
statements or comments about Employee concerning Employee’s employment or his
cessation of employment.


 


VIII.        RETURN OF COMPANY RECORDS, PROPERTY
AND EQUIPMENT.


 


By January       ,
2010, Employee shall return to the Company (by delivering in person or using
the postage prepaid mailer supplied by Company), all Company or Lawson (or
their respective their affiliates or subsidiaries) records, materials, property
and equipment possessed by Employee, including, without limitation, Employee’s key
cards and credit cards, any documents belonging to the Company or Lawson (or
their respective affiliates or subsidiaries) or that contain confidential information,
and any other Company or Lawson (or their respective affiliates or
subsidiaries) property possessed anywhere by Employee.  In the event that Employee finds any Company
or Lawson (or their respective affiliates or subsidiaries) property, including
without limitation documents or electronic equipment, after his last day of
employment, Employee shall promptly return such property to the Company.


 

















 


IX.           OPPORTUNITY TO CONSIDER AND SEEK
ADVICE AND CONFIRMATION OF UNDERSTANDING.


 


Employee acknowledges that Employee received this Agreement on January     ,
2010.  Employee has been advised by the
Company and Lawson that Employee has the right to consult with an attorney (at
Employee’s own expense) before signing this Agreement, and that Employee has
twenty-one (21) calendar days after the date on which Employee received this
Agreement to consider whether or not Employee wishes to sign it.  Notwithstanding the foregoing, Employee
expressly waives this twenty-one (21) day period.  If Employee signs this Agreement without the
benefit of the twenty-one (21) calendar day period, it will be his personal and
voluntary decision to do so.


 


Employee acknowledges that Employee has read and understands this
entire Agreement, and has had sufficient opportunity to ask the Company and
Lawson any questions about this Agreement. 
If Employee has asked the Company and Lawson any questions about this
Agreement, all questions have been answered and Employee understands and is
satisfied with all of those answers.


 


X.            EFFECTIVENESS OF AGREEMENT;
OPPORTUNITY TO RESCIND.


 


This Agreement shall become effective only upon the expiration of the
7-day rescission period set forth below. 
If Employee rescinds this Agreement during the 7-day rescission period
set forth in the following paragraph (a “Rescission Event”), then this
Agreement shall forthwith (without the requirement of any further action by the
parties) become immediately null and void and without any further force or
effect.


 


Employee understands that Employee may cancel this Agreement for any
reason within seven (7) calendar days after Employee has signed it.  If Employee decides to cancel this Agreement,
Employee must provide written notice of cancellation, and that notice must be
addressed to Kristin Trecker, Lawson Software, Inc., 380 St. Peter Street,
St. Paul, MN 55102.  The notice must be
hand-delivered or sent by certified mail, return receipt requested, and
postmarked within the 7-day period. 
Notwithstanding anything to the contrary contained herein, the Agreement
shall not become effective or enforceable until this 7-day rescission period
has expired.


 


Employee acknowledges and agrees that, if he rescinds this Agreement,
then he shall promptly refund to the Company any portion of the Severance
Benefits previously paid to him.


 


XI.           COMPREHENSIVE NATURE OF
AGREEMENT; REVIEW BY LEGAL COUNSEL.


 


This Agreement and the agreements referenced herein
(including the Offer Letter) contain the entire understanding and agreement
between the Company, Lawson and Employee with respect to the matters discussed
herein; provided, however, that, if this Agreement is rescinded in accordance
with Section, then the Offer Letter shall remain in full force and effect.  Unless a Rescission Event occurs, then this
Agreement shall supersede, replace and terminate the Offer Letter.  Employee expressly agrees and acknowledges
that any nondisclosure or similar agreement with the Company, including his
Nondisclosure, Developments Agreement and Non-Solicit Agreement, shall remain
in full force and effect and is not altered by this Agreement.  Employee acknowledges each of the
following:  (1) Employee may consult
with Employee’s own attorney at Employee’s expense, (2) Employee has had
an opportunity to be represented by Employee’s own attorney before signing this
Agreement, (3) the Company’s counsel represents the Company and does not
represent or serve as legal counsel for Employee, and Lawson counsel represents
Lawson and does not represent or serve as legal counsel for Employee, (4) Employee
has read and understands the terms of this Agreement, (5) Employee is
voluntarily entering this Agreement to take advantage of the benefits offered,
and (6) there have been no promises leading to the signing of this
Agreement except those that have been expressly contained in this written
document.


 


XII.         COOPERATION


 


Employee agrees that Employee will cooperate with the Company and
Lawson (at the Company’s expense) as follows:


 

















 


A.            Legal Proceedings.  In the event that any legal
proceeding arises in which the Company, Lawson or any of their respective
affiliated entities, parents, or successors deems Employee’s testimony or
participation to be relevant or necessary, Employee agrees to cooperate with
the Company, Lawson or the affiliated entity, parent, or successor in
connection with the proceeding by providing testimony through affidavit, in a
deposition, or at a hearing or trial, or otherwise assisting the Company,
Lawson or affiliated entity or successor with respect to the proceeding.  This provision is not intended to affect the
substance of any testimony that Employee is asked to provide.  Rather, Employee agrees to provide truthful
testimony and to otherwise assist the Company, Lawson or affiliated entity in
light of and in full compliance will all applicable laws.


 


B.            Consultation.  In the event that any questions
arise with regard to any information or subject that Employee developed, of
which Employee had knowledge or with which Employee was otherwise involved
during the period of Employee’s employment with the Company, Employee agrees to
reasonably cooperate with and respond to any request by the Company, Lawson or
any affiliated entity, parent, or successor for advice, opinions, or other
information responsive to the question posed.


 


XIII.        NON-ASSIGNMENT.


 


Employee, the Company and Lawson agree that this Agreement may not be
assigned by either party unless the other party consents in writing, except
that Company may assign this Agreement without Employee’s consent to Lawson or
any parent, subsidiary, or successor thereof or in connection with a merger or
sale of all or substantially all of the assets of the Company or any applicable
operating division.


 


XIV.        SAVINGS CLAUSE.


 


If any provision of this Agreement is determined later to be invalid, the
remaining provisions shall remain in full force and effect.  Moreover, if one or more of the provisions
contained in this Agreement shall, for any reason, be held to be excessively
broad as to scope, activity, subject, or otherwise, so as to be unenforceable
at law, such provision or provisions shall be construed by the appropriate
judicial body by limiting or reducing it or them, so as to be enforceable to
the maximum extent compatible with then applicable law.  However, if the Release contained in Section II(A) is
held to be void or unenforceable in any respect, then this entire Agreement
shall be voidable at the Company’s option. 
Nothing in this Agreement is intended to or shall be construed as
entitling the Company to abrogate or require tender back of the severance
payment of Section I(B) relating to the enforcement of Section II(B).


 


XV.         EMPLOYER’S REMEDIES.


 


Employee acknowledges that the violation of any of the
terms of this Agreement will cause irreparable harm to the Company and
Lawson,  and he agrees that, in addition
to any other relief afforded by law, an injunction against the violation of the
Agreement and Release may be issued against Employee.  Both damages and injunction shall be proper
modes of relief and are not alternative remedies.  If the Company or Lawson commences any action
in equity to specifically enforce any of their rights under this Agreement,
Employee waives and agrees not to assert the defense that the Company or Lawson
have an adequate remedy at law.  All
payments under this Agreement shall cease upon Employee’s violation of any of
its terms, except for the severance payment under Section I(B) as it
relates to the enforcement of Section II(B).


 


XVI.        GOVERNING LAW AND GENERAL.


 


This Agreement will be construed and interpreted in accordance with the
laws of the State of Texas.  The Company,
Lawson and the Employee acknowledge that the Released Parties are intended
third-party beneficiaries of this Agreement. 
The parties to this agreement agree and acknowledge that this Agreement
shall be considered to have been drafted equally by each of the parties.  The headings of all of the paragraphs and
subparagraphs of this Agreement are inserted only for convenience for
reference, and are not part of this Agreement.


 

















 


XVII.      GUARANTEE


 


Lawson hereby guarantees the obligations of the Company under this
Agreement to pay the Severance Benefits. 
The obligations of Lawson under this Section XVII are subject in
all respects to all rights and defenses of the Company arising under this
Agreement and the contemplated transactions and will in all events terminate
upon the occurrence of a Rescission Event.


 


[REMAINDER OF THIS
PAGE BLANK.  SIGNATURE PAGE FOLLOWS.]


 

















 


The parties hereto have caused this Separation Agreement, Waiver and
Release to be executed and delivered as of the date set forth above.


 


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Employee
  Signature

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  LAWSON SOFTWARE
  AMERICAS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Lawson
  Representative Signature

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  QUOVADX
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Quovadx
  Representative Signature

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title

  



 


Notary
Public:


 


If Separation
Agreement, Waiver and Release is not signed by Employee in person at a Company
office, Employee must sign in presence of a notary public.


 


	
   

  	
  Subscribed
  and sworn to before me

  
	
   

  	
   

  
	
   

  	
  this
             day of
                                        .

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notary Public

  



 

















 


EXHIBIT I


 


CLOSING
DATE PAYEES


 


1)  Battery Ventures VII, L.P.


 


2)  Battery Investment Partners VII, LLC


 


3)  Russell Fleischer


 


4)  Mike Epplen


 


5)  Carolyn Jolley


 


6)  Jeff Tognoni


 


7)  May Hu


 


8)  Lauren Hill


 


9)  Paul Bellamy


 


10)  Jim Elder


 
















 


EXHIBIT J


 


FORM OF
COOLEY LEGAL OPINION


 


Lawson Software Americas, Inc.


380 St. Peter
Street


St. Paul, MN 55102


 


Re:                             Acquisition of Quovadx Holdings, Inc.
by Lawson Software Americas, Inc.


 


Dear
Ladies and Gentlemen:


 


We have acted as counsel for Quovadx Holdings, Inc.,
a Delaware corporation (the “Company”)
and each of Battery Ventures VII, L.P., a Delaware limited partnership (the “Stockholders’ Agent”) and Battery Ventures VII, LLC, a
Delaware limited liability company (collectively with the Stockholders’ Agent,
the “Principal Stockholders”), in connection
with the merger (the “Merger”) of
the Company with Highway Acquisition, Inc., a Delaware corporation (the “Merger Sub”) and wholly-owned
subsidiary of Lawson Software Americas, Inc., a Delaware corporation (“Parent”) under the Agreement and Plan of Merger dated as of January 7,
2010 (the “Acquisition Agreement”), by
and among the Company, Parent, the Merger Sub, Battery Ventures VII, L.P., a
Delaware limited partnership and Battery Investment Partners VII, LLC, each in
their capacity as Principal Stockholders, and Battery Ventures VII, L.P. in its
capacity as the Stockholders’ Agent.  We
have also acted as counsel for Healthvision Solutions, Inc., a Delaware
corporation (“Healthvision Solutions”),
Healthvision, Inc., a Delaware corporation (“Healthvision”),
Advica Health Resources, Inc., a Delaware corporation (“Advica”), Confer Software, Inc.,
a California corporation (“Confer”)
and Quovadx International, Inc., a Colorado corporation (“Quovadx International”, and together
with Healthvision Solutions, Healthvision, Advica, and Confer, the “Company Subsidiaries”).  We are rendering this opinion pursuant to Section 7(e) of
the Acquisition Agreement.  Except as
otherwise defined herein, capitalized terms used but not defined herein have
the respective meanings given to them in the Acquisition Agreement.


 


In connection with this opinion, we have examined and
relied upon the representations and warranties as to factual matters contained
in and made pursuant to the Acquisition Agreement by the various parties and
originals or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.


 


As to certain factual matters we have relied upon
certificates of officers of the Company and Company Subsidiaries and have not
sought to independently verify such matters. 
Where we render an opinion “to our knowledge” or concerning an item “known
to us” or our opinion otherwise refers to our knowledge, it is based solely
upon (i) an inquiry of attorneys within this firm who have represented the
Company and Company Subsidiaries, (ii) receipt of a certificate 


 

















 


executed by an officer of
the Company and Company Subsidiaries covering such matters, and (iii) such
other investigation, if any, that we specifically set forth herein.


 


In rendering this opinion, we have assumed: the
authenticity of all documents submitted to us as originals; the conformity to
originals of all documents submitted to us as copies; the accuracy,
completeness and authenticity of certificates of public officials; the due
authorization, execution and delivery of all documents (except the due
authorization, execution and delivery by the Company of the Acquisition
Agreement, the Escrow Agreement and the releases delivered in satisfaction of
Sections 7.2(f) of the Acquisition Agreement executed by the Principal
Stockholders (together, the “Transaction Agreements”)),
where authorization, execution and delivery are prerequisites to the
effectiveness of such documents; and the genuineness and authenticity of all
signatures on original documents (except the signatures on behalf of the
Company on the Transaction Agreements). 
We have also assumed:  that the
Transaction Agreements are obligations binding upon the parties thereto other
than the Company; and that there are no extrinsic agreements or understandings
among the parties to the Transaction Agreements that would modify or interpret
the terms of any such Agreements or the respective rights or obligations of the
parties thereunder.


 


Our opinion is expressed only with respect to (i) the
federal laws of the United States of America and the laws of the Commonwealth
of Massachusetts; (ii) the General Corporation Law of the State of
Delaware; and (iii) for purposes of paragraphs 1 and 2, the laws of the
State of California solely with respect to Confer and the laws of the State of
Colorado solely with respect to Quovadx International.  We express no opinion as to whether the laws
of any particular jurisdiction apply, and no opinion to the extent that the
laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof.  We note that
the parties to the Transaction Agreements have designated the laws of the State
of the State of Delaware as the laws governing the Transaction Agreements.  Our opinion in paragraph 5 below as to the
validity, binding effect and enforceability of the Transaction Agreements
relating to the Principal Stockholders is premised upon the result that would
obtain if a Massachusetts court were to apply the internal laws of the
Commonwealth of Massachusetts (notwithstanding the designation of the laws of
the State of Delaware) to the interpretation and enforcement of the Transaction
Agreements.


 


We are not rendering any opinion as to any statute,
rule, regulation, ordinance, decree or decisional law relating to antitrust,
banking, land use, environmental, pension, employee benefit, tax, fraudulent
conveyance, usury, or local law or the Health Insurance Portability and
Accountability Act, as Amended. 
Furthermore, we express no opinion with respect to compliance with
antifraud laws, rules or regulations relating to securities or the offer
and sale thereof; compliance with fiduciary duties by the Company’s Board of
Directors or stockholders; compliance with safe harbors for disinterested Board
of Director or shareholder approvals; compliance with state securities or blue
sky laws except as specifically set forth below; compliance with the Investment
Company Act of 1940; compliance with laws that place limitations on corporate
distributions; or the enforceability of any covenant not to compete or any
covenant in restraint of trade.


 


With regard to our
opinion in paragraphs 1 and 2 below with respect to the good standing of the
Company and Company Subsidiaries, we have relied solely upon certificates of
the Secretaries of 


 

















 


State of the
indicated jurisdictions as of a recent date, copies of which have been provided
to you, and our opinions are rendered as of such dates, as applicable.


 


With regard to our
opinion in paragraph 6 below, we have examined and relied upon a certificate
executed by an officer of the Company, to the effect that the consideration for
all outstanding shares of capital stock of the Company was received by the
Company in accordance with the provisions of the applicable Board of Directors
resolutions and any plan or agreement relating to the issuance of such shares,
and we have undertaken no independent verification with respect thereto.


 


With regard to our opinion in paragraph 7 below
concerning the agreements set forth on Schedule I (the “Material Agreements”), we express no
opinion as to (i) financial covenants or similar provisions therein
requiring financial calculations or determinations to ascertain compliance, (ii) provisions
therein relating to the occurrence of a “material adverse event” or words of
similar import, or (iii) any statement or writing that may constitute
parol evidence bearing on interpretation or construction.


 


With regard to our opinion in paragraph 8 below with
respect to pending or overtly threatened litigation, we have made an inquiry of
the attorneys within this firm who have represented the Company and the Company
Subsidiaries, examined and relied upon a certificate executed by an officer of
the Company and the Company Subsidiaries covering such matters, and checked the
records of this firm to ascertain that we are not acting as counsel of record
for the Company or Company Subsidiaries in any such matter.  We have made no further investigation.


 


On the basis of the foregoing, in reliance thereon and
with the foregoing qualifications, we are of the opinion that:


 


1.                                      Each of the Company and the Company
Subsidiaries has been duly incorporated and is validly existing and in good
standing (except for Confer, which is not in good standing) under the laws of
its state of incorporation.   [Note: if Confer is in good standing in California upon issuance of
this opinion the carve out will be removed.]


 


2.                                      Each of the Company and the Company
Subsidiaries is duly qualified to do business as a foreign corporation and is
in good  standing under the laws
of the respective states identified on Schedule
II hereof.


 


3.                                      Each of the Company and the Company
Subsidiaries has the organizational power to own or lease its current
properties, as known to us, and conduct its business as, to our knowledge, it
is presently conducted.


 


4.                                      Each of the Company and the Principal
Stockholders has the corporate power to execute, deliver and perform its
obligations under the Transaction Agreements.


 


5.                                      Each of the Transaction Agreements has
been duly and validly authorized, executed and delivered by the Company and the
Principal Stockholders and constitutes legal, valid, binding and enforceable
obligations of the Principal Stockholders.


 

















 


6.                                      The Company’s authorized capital stock
consists of (a) 30,000,000 shares of Common Stock, par value $.001, of which 19,721,199 shares are issued and
outstanding, and (b) 3,000,000 shares of Preferred Stock, par value $.001, all of which have
been designated Series A Perpetual Preferred Stock, par value $.001, of which 2,282,000
shares are issued and outstanding.  The
outstanding shares of Common Stock and of Series A Perpetual Preferred
Stock have been duly authorized and validly issued and are fully paid and
nonassessable.  To our knowledge, there
are no options, warrants, conversion privileges, preemptive rights or other
rights presently outstanding to purchase any of the authorized but unissued
capital stock of the Company, other than the conversion privileges of the Series A
Perpetual Preferred Stock and 600,000 shares of Common Stock reserved for
issuance under the Company’s 2008 Equity Incentive Plan, of which (i) 196,708
shares of Common Stock are issuable upon the exercise of outstanding options
and (ii) 403,292 shares of Common Stock are available for grant.


 


7.                                      The execution and delivery of the
Transaction Agreements by the Company do not, and the consummation by the
Company of the transactions contemplated by the Transaction Agreements will not
violate, conflict with, breach or constitute a default under (a) any
provision of the Company’s Certificate
of Incorporation or Bylaws, (b) any governmental statute, rule or
regulation which in our experience is typically applicable to transactions of
the nature contemplated by the Transaction Agreements, (c) any order,
writ, judgment, injunction, decree, determination or award which has been
entered against the Company and of which we are aware, or (d) any of the
Material Agreements listed on Schedule I, in each case to the extent the
violation of which would materially and adversely affect the Company and the
Company Subsidiaries, taken as a whole.


 


8.                                      To our knowledge, there is no action,
suit, proceeding, arbitration, or investigation pending or overtly threatened
against the Company or any of the Company Subsidiaries before any federal,
state, municipal, foreign or other court or governmental or administrative body
or agency, or any private arbitration tribunal that questions the validity of,
or which would otherwise have the effect of prohibiting the transactions
contemplated by the Transaction Agreements, or that could reasonably be
expected to result, either individually or in the aggregate, in a material
adverse effect on the Company and the Company Subsidiaries, taken as a whole.


 


9.                                      The Merger and the Acquisition Agreement
have each been duly approved by the Company by all requisite Board of Directors
and stockholder action and, assuming all necessary Board of Directors and
stockholder approvals on the part of Parent and the Merger Sub, upon acceptance
for filing by the Office of the Secretary of State of the State of Delaware of
the Certificate of Merger, the Merger will become effective under the General
Corporation Law of the State of Delaware.


 


This opinion is intended solely for your benefit and
is not to be made available to or be relied upon by any other person, firm, or entity
without our prior written consent.


 

















 


	
  Very truly yours,

  	
   

  
	
   

  	
   

  
	
  COOLEY GODWARD KRONISH LLP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Alfred L. Browne, III

  	
   

  



 

















 


SCHEDULE I


 


MATERIAL AGREEMENTS


 


1.  Agency Agreement dated January 1, 2009,
relating to transfer pricing by and between Healthvision Solutions, Inc.
and HV Solutions, Shanghai.


 


2.  Intercompany Agreement dated August 28,
2008, by and between Healthvision Solutions, Inc. and HV Solutions Canada
Inc.


 


3.  Agency Agreement relating to Transfer Pricing
by the Agent on behalf of HV Solutions, Canada, Inc. dated January 1,
2009 between HV Solutions Canada, Inc. and HV Solutions, Shanghai.


 


4.  Master Services Agreement dated September 10,
2009 between Healthvision Solutions, Inc. and Sandlot, LLC.


 


5.  Value Added Marketing Agreement dated March 6,
2003 between Quovadx, Inc. and McKesson Information Solutions Inc.


 


6.  Service Agreement dated December 29,
2000 between Healthvision, Inc. and 
St. Joseph Health System.


 


7.  Master Service Agreement dated October 1,
2005 between Healthvision, Inc. and Yale-New Haven Health Services
Corporation.


 


8.  Master Agreement dated October 17, 2006
between Quovadx, Inc. and BJC Health System.


 


9.  Amended and Restated Master Agreement for
Software and Services dated June 10, 2009 between Healthvision Solutions, Inc.
and UHS of Delaware, Inc.


 


10.  Master Distributor Agreement dated December 19,
2005 between Quovadx, Inc. and E.Novation Lifeline Networks.


 


11.  Master Agreement dated June 27, 2007
between Quovadx, Inc. and RelayHealth, a division of McKesson Information
Solutions LLC.


 


12.  Master Agreement dated September 19,
2008 between Healthvision Solutions, Inc. and Southeastern Regional
Medical Center.


 


13.  Distributor Agreement dated April 1,
2001 between Healthcare.com Europe (HCCE) and Health Comm Gmbh.


 


14.  OEM License Agreement dated June 30,
2006 between Quovadx, Inc. and GE Healthcare, a division of General
Electric Company.


 


15.  Master Distributor Agreement dated February 15,
2008 between Quovadx, Inc. and E. Novation France SA


 


16.  Exclusive License Agreement dated March 31,
2001 between Madison Information Technologies, Inc. and Healthcare.com
Corp.


 

















 


SCHEDULE II


 


FOREIGN QUALIFICATIONS


 


Healthvision Solutions, Inc.


 


Colorado — Good Standing Certificate dated [                 ]


 


Kentucky — Good Standing Certificate dated [                  ]


 


Ohio — Good Standing Certificate dated [                 ]


 


South Carolina — Good Standing Certificate dated [                 ]


 

















 


EXHIBIT K


 


FORM OF
GENERAL RELEASE


 


This General Release (this “Release”)
is entered into by the undersigned officer, director and/or stockholder of
Quovadx Holdings, Inc., a Delaware corporation (the “Company”),
for the benefit of the Company, Lawson Software Americas, Inc., a Delaware
corporation (the “Parent”),
Highway Acquisition, Inc., a Delaware corporation (the “Merger Sub”), and the other parties released herein, in
connection with the merger of the Merger Sub with and into the Company pursuant
to the terms of that certain Agreement and Plan of Merger, dated as of January     ,
2010, by and among the Company, the Parent, the Merger Sub and certain of the
stockholders of the Company (the “Merger Agreement”).


 


1.                                       For and in consideration of the payments
and/or other benefits to be provided to the undersigned as a director, officer
and/or stockholder of the Company, the undersigned, on his, her or its behalf
and on behalf of his, her or its heirs, executors, administrators,
beneficiaries, representatives, and successors and assigns, hereby release and forever
discharge the Company, the Parent, the Merger Sub and their respective
Affiliates (as defined in Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended), together with their respective past, present
and future officers, directors, stockholders, employees, agents, joint
venturers, attorneys, representatives, successors and assigns, and all others
connected with any of them, both individually and in their official capacities,
from any and all past, present and future disputes, claims, controversies,
demands, rights, obligations, liabilities or actions of every kind and nature
which the undersigned has or had in the past, or now has or might now have,
through the effective date of this Release, related to the Company or the Parent
and their respective businesses and operations, including without limitation
any disputes, claims, controversies, demands, rights, obligations, liabilities
or actions of every kind and nature in any way resulting from, arising out of
or connected with (i) the transactions contemplated by the Merger
Agreement, (ii) the undersigned’s position as a director, officer,
employee, stockholder and/or optionholder of the Company, or (iii) the
undersigned’s ownership, transfer or conversion of any securities of the Company,
in each case, whether or not the undersigned now knows of those claims, actions
and causes of action.  Notwithstanding
the foregoing, this Release shall not release (A) any right, title and
interest the undersigned has under the Merger Agreement and Transaction
Documents (as defined in the Merger Agreement), (B) any vested interest
the undersigned may have in the Company’s 401(k) plan by virtue of his or
her employment with the Company (if applicable), and (C) any rights the
undersigned may have for accrued wages and salary by virtue of his or her
employment with the Company (if applicable).


 


2.                                       In signing this Release, the undersigned
acknowledges that he, she or it has been advised by the Parent, the Company and
their Affiliates to consult with an attorney prior to 


 

















 


signing this Release and that the undersigned is signing this Release
voluntarily and with a full understanding of its terms.


 


3.                                       The undersigned further acknowledges and
agrees (a) to keep strictly confidential the fact of and all terms and
conditions of this Release and any related document, (b) that the
undersigned will not make any negative or disparaging statements, whether oral
or written, about the Company or the Parent, or their respective products or
services, or past, present or future directors, officers or employees, (c) that
the Company’s rights under this Release may be enforced by the Parent and its
Affiliates (including the Company) and any other party released herein, or any
successor or assign of any of the Parent or its Affiliates or any other party
released herein, (d) that this Release will be governed by and enforced
and interpreted in accordance with the laws of the State of Delaware, (e) that
if any portion of this Release is held invalid by the final judgment of any
court of competent jurisdiction, the remaining provisions of this Release will
remain in full force and effect as if such invalid provision had not been
included in this Release, and (f) in the event legal action is taken or
commenced against the undersigned for the enforcement of any of the covenants,
terms or conditions of this Release, the undersigned will be liable for all
reasonable fees and costs (including legal fees and costs) incurred by the
party bringing such legal action in connection therewith.


 


Intending to be legally bound, the undersigned has signed this Release
as of the date written below, to be made effective as of the “Effective Time,”
contemplated by the Merger Agreement.


 


	
   

  	
   

  	
  [ENTITY
  SIGNATORY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  OR

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [INDIVIDUAL
  SIGNATORY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert name],
  individually

  



 
















 


EXHIBIT L


 


FORMS OF
AGREEMENT TERMINATIONS


 


Quovadx Holdings, Inc.


5030 Riverside Drive, Suite 300


Irving, TX 75309


 


To Whom it May Concern:


 


I hereby resign from my position as
                                              
of Quovadx Holdings, Inc. (the “Company”),
and any other positions I may hold with the Company or any of its subsidiaries,
effective as of immediately prior to the closing of the merger (the “Merger”) contemplated by that
certain Agreement and Plan of Merger by and among Lawson Software Americas, Inc.,
Highway Acquisition, Inc., the Company, Battery Ventures, VII, L.P.,
Battery Investment Partners VII, LLC and R. David Tabors, in his capacity as
the Stockholders’ Agent, dated as of January 7, 2010.


 


Pursuant to Section 15 of my indemnification agreement with the
Company dated January 29, 2009 (the “Indemnification Agreement”),
I hereby agree to terminate the Indemnification Agreement effective as of
immediately prior to the closing of the Merger.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Acknowledged and
  Agreed:

  	
   

  	
   

  
	
  Quovadx
  Holdings, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
				



 

















 


EXHIBIT L
(CONTINUED)


TERMINATION
AGREEMENT


 


This Termination Agreement (the “Agreement”)
is entered into as of January [  ],
2010, by and between Quovadx Holdings, Inc. (the “Company”),
Battery Ventures VII, L.P. (“Battery LP”)
and Battery Investment Partners VII, LLC (“Battery LLC”
together with Battery LP, referred to as “Battery”).


 


RECITALS


 


WHEREAS, the Company has entered into an Agreement and Plan of
Merger dated January 7, 2010, with Lawson Software Americas, Inc., a
Delaware corporation (“Lawson”),
and a newly formed Delaware wholly owned subsidiary corporation (the “Merger Sub”) pursuant to which the
Merger Sub will merge with and into the Company, and the Company will be a
wholly-owned subsidiary of Lawson (the “Merger”);


 


WHEREAS, the closing of the Merger is currently anticipated to
occur January 11, 2009 (the “Closing”);


 


WHEREAS, the Company, Battery and certain stockholders of the
Company are party to the Stockholder Agreement dated August 23, 2007 (the “Stockholder Agreement”);


 


WHEREAS, the Company and Battery LP are party to the
Management Rights Letter dated January 29, 2009 (the “Battery
LP Rights Letter”);


 


WHEREAS, the Company and Battery LLC are party to the Management
Rights Letter dated January 29, 2009 (the “Battery
LLC Rights Letter”, together with the Battery LP Rights Letter,
the “Rights Letters”);


 


WHEREAS, the Company and Battery agree to terminate the
Stockholder Agreement and the Rights Letters effective as of immediately prior
to the Closing.


 


NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereby agree as follows:


 


1.  Termination of Stockholder
Agreement.  Pursuant
to Section 10.1 of the Stockholder Agreement, the Company and Battery, who
holds more than 50% of the outstanding shares of Common Stock, hereby agree to
terminate the Stockholder Agreement effective as of immediately prior to the
Closing.


 


2.  Termination of Rights
Letters.  The
Company and Battery hereby agree to terminate the Rights Letters effective as
of immediately prior to the Closing.


 

















 


3.  Miscellaneous.  This Agreement may be executed in any number
of counterparts and by facsimile signature, each of which shall be an original
but all of which together shall constitute one and the same instrument.


 


[Signatures
Appear on Following Page]


 

















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.


 


 


	
   

  	
  QUOVADX
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Russell Fleischer

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BATTERY
  VENTURES VIII, L.P.

  
	
   

  	
  By: Battery Partners VII, LLC

  
	
   

  	
  Its: General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: R. David Tabors

  
	
   

  	
  Title: Member Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BATTERY
  INVESTMENT PARTNERS VII, LLC

  
	
   

  	
  By: Battery Partners VII, LLC

  
	
   

  	
  Its: General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: R. David Tabors

  
	
   

  	
  Title: Member Manager

  



 

















 


EXHIBIT M


 


FORM OF
ESCROW AGREEMENT


 


This Escrow Agreement (this “Escrow Agreement”)
is entered into as of January [·], 2010 (the “Effective
Date”) by and among: (a) Lawson Software Americas, Inc.,
a Delaware corporation (“Parent”); (b) R.
David Tabors in his capacity as the Stockholders’ Agent (the “Stockholders’ Agent”) on behalf of
the Escrow Participants (as defined below); and (c) Wells Fargo Bank,
National Association, as escrow agent hereunder (the “Escrow
Agent”).  Capitalized
terms used and not otherwise defined herein shall have the respective meanings
assigned to them in the Merger Agreement.


 


RECITALS:


 


WHEREAS, Parent, Quovadx Holdings, Inc., a
Delaware corporation (the “Company”),
Highway Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”),
Battery Ventures VII, L.P. and Battery Investment Partners VII, LLC, in their
capacity as the Principal Stockholders and the Stockholders’ Agent have entered
into an Agreement and Plan of Merger dated as of January 7, 2010 (the “Merger Agreement”), pursuant to
which, among other things, at the Effective Date, Merger Sub will be merged
with and into the Company, and the Company will be the surviving corporation
following the Merger; and


 


WHEREAS, in accordance with Section 11.1 of
the Merger Agreement, the Principal Stockholders and Russell Fleischer (the “Escrow Participants”) have appointed the Stockholders’ Agent
to act on their individual and collective behalf with respect to the taking of
actions under the Merger Agreement and this Escrow Agreement; and


 


WHEREAS, concurrently with the execution and
delivery of this Escrow Agreement, Parent will deliver $16,000,000 (the “Escrow Deposit”) to the Escrow
Agent, to be held and disbursed, as hereinafter provided and as provided in the
Merger Agreement, to satisfy the obligations (if any) of the Escrow
Participants to make payments with respect to claims made under Section 9
of the Merger Agreement, under Section 1.9 of the Merger Agreement, and as
otherwise provided in the Merger Agreement; and


 


WHEREAS, the parties to the Merger Agreement
desire that the Escrow Agent serve as escrow agent and the Escrow Agent desires
to so serve, all in accordance with the terms and conditions of this Escrow
Agreement.


 


NOW
THEREFORE, in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:


 


1.                                       Appointment.


 


(a)                                  Escrow Agent. 
Parent and the Stockholders’ Agent hereby designate and appoint the
Escrow Agent to serve as their escrow agent for the purposes set forth herein,
and the Escrow


 

















 


Agent hereby accepts such appointment under the terms and subject to
the conditions set forth herein.


 


(b)                                 Stockholders’ Agent. 
The Stockholders’ Agent represents and warrants to Parent and the Escrow
Agent that the Escrow Participants have duly appointed the Stockholders’ Agent
to act on behalf of such Escrow Participants in connection with the Merger
Agreement, this Escrow Agreement and the transactions contemplated thereby,
including with respect to the signing of any documents and the taking of any
actions necessary in connection with the transactions contemplated by this
Escrow Agreement on behalf of the Escrow Participants.  If either Parent or the Escrow Agent receives
any certificate, notice, consent or instrument from the Stockholders’ Agent
they are entitled to rely upon, and act in accordance with, such certificate,
notice, consent or instrument in regards to the rights of such Escrow
Participants.  If the person or entity
named above as Stockholders’ Agent is removed or resigns, the Stockholders’
Agent will immediately give notice to Parent and the Escrow Agent, and such notice
will identify the person or persons to replace the current Stockholders’ Agent.


 


2.                                       Escrow Fund. 
Simultaneously with the execution and delivery of this Escrow Agreement,
Parent is depositing with the Escrow Agent the Escrow Deposit in immediately
available funds.  The Escrow Agent shall
hold the Escrow Deposit in escrow in the Escrow Account (as defined below),
free and clear of any lien or encumbrance, against potential claims by Parent
pursuant to Section 9 of the Merger Agreement and the obligations of the
Escrow Participants under Section 1.9 of the Merger Agreement
(collectively, “Claims”), and, subject to the
terms and conditions hereof, shall invest and reinvest the Escrow Deposit,
together with any proceeds thereof and earnings thereon (the “Escrow Fund”) as directed in Section 3.


 


3.                                       Investment of Escrow Fund. 
During the term of this Escrow Agreement, the Escrow Fund shall be
invested and reinvested by the Escrow Agent in (i) obligations issued or
guaranteed by the United States of America or any agency or instrumentality
thereof, (ii) money market mutual funds backed by government issued or
guaranteed securities, or (iii) such other investments as shall be
directed jointly in a writing executed by Parent and the Stockholders’ Agent
and as shall be reasonably acceptable to the Escrow Agent. In the absence of
written investment instructions, the Escrow Fund shall be invested in the Wells
Fargo Institutional Money Market Deposit Account (“IMMDA”),
which is further described herein on Schedule 1.  Parent and the Stockholders’ Agent
acknowledge that they have read and understand Schedule
1.  Periodic statements
will be provided to Parent and the Stockholders’ Agent reflecting transactions
executed on behalf of the Escrow Fund. 
Parent and the Stockholders’ Agent, upon written request, will receive a
statement of transaction details upon completion of any investment,
reinvestment, or other transaction in the Escrow Fund without any additional
cost.  The Escrow Agent shall have the
right to liquidate any investments held in order to provide funds necessary to
make required payments under this Escrow Agreement.  The Escrow Agent shall have no liability for
any loss sustained as a result of any investment listed in (i) or (ii) above,
as a result of any investment made pursuant to the joint written instructions
of Parent and the Stockholders’ Agent or as a result of any liquidation of any
investment prior to its maturity or for the failure of the parties to give the
Escrow Agent instructions to invest or reinvest the Escrow Fund.  Parent and the Stockholders’ Agent
acknowledge that the Escrow Agent is not providing investment supervision,
recommendations, or advice.


 


2

















 


4.                                       Disposition and Termination.


 


(a)                                  If the Escrow Agent receives joint
written instructions at any time signed by both Parent and the Stockholders’
Agent directing the disposition of all or any portion of the Escrow Fund, the
Escrow Agent shall release from the Escrow Fund the amount set forth in such
instructions as soon as practicable, but in no event later than two (2) Business
Days (as defined hereinafter) after the date of the Escrow Agent’s receipt of
such instructions.


 


(b)                                 If Parent seeks the release of all or a
portion of the Escrow Fund during the period prior to the Final Distribution
Date in connection with a Claim pursuant to and in accordance with Sections 9
or 1.9 of the Merger Agreement, Parent shall provide written notice
concurrently to the Escrow Agent and the Stockholders’ Agent describing the
Claim (a “Notice of Claim”), which
Notice of Claim shall set forth the Claim in reasonable detail, including
Parent’s good faith estimate of the amount of the Claim, and other evidence
indicating that Parent is entitled to indemnification under Section 9 of
the Merger Agreement or an adjustment of the Merger Consideration pursuant to Section 1.9
of the Merger Agreement.  The Escrow
Agent will have no obligation to verify the validity of any Notice of Claim or
that delivery of such Notice of Claim has been made by Parent to the
Stockholders’ Agent.  The Escrow Agent
shall release to Parent the amount set forth in such Notice of Claim from the
Escrow Fund on the date that is ten (10) Business Days after the Escrow
Agent’s receipt of such written Notice of Claim unless, within such ten (10) Business
Day period, the Stockholders’ Agent provides written notice to Parent and the
Escrow Agent disputing, in good faith, the validity or appropriateness of the
release of such amount to Parent (the “Response Notice”).  In the event that the Escrow Agent receives a
Response Notice from the Stockholders’ Agent within such 10-Business Day period
disputing Parent’s right to all or any portion of the amount sought in the
Notice of Claim, then the Escrow Agent shall (i) continue to hold the
disputed portion of the Escrow Fund sought in such Notice of Claim (any such
amounts, the “Reserved Amounts”), together
with any portion of the Escrow Fund not subject to such Notice of Claim or
Response Notice, (ii) release to Parent such non-disputed portion of the
Escrow Fund sought in the Notice of Claim, and (iii) release such disputed
portion of the Escrow Fund sought in the Notice of Claim upon receiving joint
written instructions from Parent and the Stockholders’ Agent to effect such
release.  If within fifteen (15) Business
Days of Parent’s receipt of a Response Notice, Parent and the Stockholders’
Agent do not resolve any amount disputed in such Response Notice, then Parent
and the Stockholders’ Agent will resolve any dispute in accordance with the
procedures for resolving such disputes contained in the Merger Agreement.  Parent and the Stockholders’ Agent shall
submit evidence of the final resolution of such dispute to the Escrow Agent
within two (2) Business Days of the final resolution of such dispute, and
the Escrow Agent shall disburse or retain the disputed amount in accordance
with such resolution.


 


(c)                                  On [Insert date that is one
year following the Effective Time] (the “Final
Distribution Date”), the Escrow Agent shall release to the
Stockholders’ Agent all amounts remaining in the Escrow Fund, if any, less any
Reserved Amounts that would be required under Section 4(b) to satisfy
pending or unresolved Claims properly asserted pursuant to a Notice of Claim
received by the Escrow Agent prior to the Final Distribution Date.  Such funds shall be released pursuant to
written instructions provided to the Escrow Agent by the Stockholders’ Agent
(the “Final Distribution Instructions”).  The Escrow Agent shall distribute the final 


 


3

















 


payments to the
Stockholders’ Agent by wire transfer to an account(s) specified for such
purpose as indicated on Schedule 2 or to such account(s) as otherwise
specified by the
Final Distribution Instructions.


 


(d)                                 Any Reserved Amounts shall remain in
escrow until the final resolution of the related Claims.  Following final resolution of any such
Claims, the Reserved Amounts shall be released pursuant to the joint written
instructions of Parent and the Stockholders’ Agent or in accordance with the
final resolution of such dispute, which shall be submitted to the Escrow Agent
by Parent and the Stockholders’ Agent within two (2) Business Days after
such resolution.  Notwithstanding the
foregoing, if a Notice of Claim relates to a Claim under Section 1.9 of
the Merger Agreement and Parent and the Stockholders’ Agent have submitted the
Claim to an accounting firm in accordance with Section 1.9(d) of the
Merger Agreement, then the Escrow Agent will consider the determination of such
accounting firm to be final and binding on the parties and upon receipt of such
determination along with joint written instruction of Parent and the
Stockholders’ Agent to disburse an amount of the Escrow Fund specified in such
accounting firm determination, the Escrow Agent shall deliver the amount of
such Claim to Parent in accordance with such accounting firm determination and
joint instruction.


 


(e)                                  Upon the distribution of all amounts
remaining in the Escrow Fund, this Escrow Agreement shall terminate.


 


(f)                                    Notwithstanding anything to the contrary
in this Escrow Agreement or the Merger Agreement, this Escrow Agreement and the
deposit of the Escrow Deposit are without prejudice to and are not in
limitation of any obligations of Parent, the Stockholders’ Agent, the Principal
Stockholders or the Escrow Participants in respect to any of the covenants,
representations or warranties of such parties contained in the Merger
Agreement.


 


5.                                       Title and Interest.


 


The Escrow Agent shall hold and safeguard the
Escrow Fund during the term of this Escrow Agreement in accordance with the
terms of this Escrow Agreement and shall treat the Escrow Fund as escrowed
amounts and not as property of Parent.  Title
to the Escrow Funds held in the account maintained by the Escrow Agent (“Escrow Account”) shall not pass to the
Stockholders’ Agent unless and until the time that the Escrow Agent is
obligated to distribute such funds to the Stockholders’ Agent in accordance
with this Escrow Agreement.  Any interest
on, and any returns on investments or reinvestments of, the Escrow Fund, net of
any tax payments under Section 10 of this Escrow Agreement, shall be
allocated and paid to the party or parties receiving the principal portion of
the Escrow Fund, pro rata based on the amount of such funds received by such
party or parties on the relevant release date, or as the Parent and the
Stockholders’ Agent shall otherwise instruct the Escrow Agent by joint written
instruction.  Any and all necessary
calculations and pro rata percentages pursuant to this Escrow Agreement shall
be included in the joint written instructions sent to the Escrow Agent by the
Stockholders’ Agent and the Parent.


 


4

















 


6.                                       Escrow Agent.


 


(a)                                  The Escrow Agent undertakes to perform
only such duties as are expressly set forth herein and no other duties shall be
implied. The Escrow Agent shall have no liability under and no duty to inquire
as to the provisions of any agreement other than this Escrow Agreement.


 


(b)                                 The Escrow Agent may rely upon and shall
not be liable for acting or refraining from acting upon any written notice,
instruction or request furnished to it hereunder and reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties, without further inquiry into the person’s or persons’ authority.  Concurrently herewith, Parent shall deliver
an executed authorized signers list in the form of Schedule
3 hereto.  The Escrow
Agent shall be under no duty to inquire into or investigate the validity,
accuracy or content of any such document.


 


(c)                                  The Escrow Agent shall have no duty to
solicit any payments which may be due it or the Escrow Fund.


 


(d)                                 The Escrow Agent shall not be liable for
any action taken or omitted by it under this Escrow Agreement so long as it
shall have acted or omitted to act without gross negligence or willful
misconduct.


 


(e)                                  The Escrow Agent may execute any of its
powers and perform any of its duties hereunder directly or through agents or
attorneys and may consult with counsel, accountants and other skilled persons
to be selected and retained by it.  The
Escrow Agent shall be entitled to rely on and shall not be liable for any
action taken or omitted to be taken by the Escrow Agent in accordance with the
advice of counsel or other professionals retained or consulted by the Escrow
Agent.


 


(f)                                    In the event that the Escrow Agent shall
be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its reasonable
opinion, conflict with any of the provisions of this Escrow Agreement, it shall
be entitled to refrain from taking any action and its sole obligation shall be
to keep safely all property held in the Escrow Fund until it shall be directed
otherwise in writing by all of the other parties hereto or by a final order or
judgment of a court of competent jurisdiction. Alternatively, the Escrow Agent
may, at its option, file an interpleader action in any court of competent
jurisdiction, and upon the filing thereof and deposit of the Escrow Fund with
such court, the Escrow Agent shall be relieved of all liability as to the
Escrow Fund and shall be entitled to recover attorneys’ fees, expenses and
other costs incurred in commencing and maintaining any such interpleader
action.


 


(g)                                 Anything in this Escrow Agreement to the
contrary notwithstanding, in no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Escrow Agent has been advised of
the likelihood of such loss or damage and regardless of the form of action.


 


5

















 


(h)                                 No provision of this Escrow Agreement shall
require the Escrow Agent to risk or advance its own funds or otherwise incur
any financial liability or potential financial liability in the performance of
its duties or the exercise of its rights hereunder.


 


(i)                                     In the event that any of the Escrow Fund
shall be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order,
judgment or decree shall be made or entered by any court order affecting the
Escrow Fund, the Escrow Agent is hereby expressly authorized, in its sole
discretion, to respond as it deems appropriate or to comply with all writs,
orders or decrees so entered or issued, or which it is advised by legal counsel
of its own choosing is binding upon it, whether with or without
jurisdiction.  In the event that the
Escrow Agent obeys or complies with any such writ, order or decree it shall not
be liable to Parent, the Escrow Participants or to any other person, firm or
corporation, should, by reason of such compliance notwithstanding, such writ,
order or decree be subsequently reversed, modified, annulled, set aside or
vacated.


 


7.                                       Succession.


 


(a)                                  The Escrow Agent may resign and be
discharged from its duties or obligations hereunder by giving thirty (30) days’
advance notice in writing of such resignation to the other parties hereto
specifying a date when such resignation shall take effect.  The Escrow Agent may be removed and replaced
following the giving of thirty (30) days’ prior written notice to the Escrow
Agent by Parent and the Stockholders’ Agent. 
In either event, the duties of the Escrow Agent shall terminate thirty
(30) days after receipt of such notice (or as of such earlier date as may be
mutually agreeable); and the Escrow Agent shall then deliver the balance of the
Escrow Fund to a successor escrow agent as shall be appointed by the other
parties hereto as evidenced by a written notice executed by Parent and the
Stockholders’ Agent and submitted to the Escrow Agent.  The Escrow Agent shall have the right to
withhold an amount equal to any amount due and owing to the Escrow Agent, plus
any costs and expenses the Escrow Agent shall reasonably believe will be
incurred by the Escrow Agent in connection with the resignation or removal of
the Escrow Agent.  Any corporation or
association into which the Escrow Agent may be merged or converted or with
which it may be consolidated, or any corporation or association to which all or
substantially all the escrow business of the Escrow Agent’s corporate trust
line of business may be transferred, shall be the Escrow Agent under this
Escrow Agreement, and shall be bound by the terms of this Escrow Agreement
applicable to the Escrow Agent, without further action of any of the parties or
such successor.


 


(b)                                 In the event that R. David Tabors,
resigns as Stockholders’ Agent or is unable to serve as Stockholders’ Agent for
any reason, a successor Stockholders’ Agent shall be selected in accordance
with Section 11.1 of the Merger Agreement and shall have the right, power
and authority to give and receive directions and notices hereunder and to make
all determinations that may be required or that such successor Stockholders’
Agent deems appropriate under this Escrow Agreement.  Notice of the appointment of any successor
Stockholders’ Agent shall promptly be provided in writing to the Escrow Agent.


 


8.                                       Fees.  Parent and
the Stockholders’ Agent agree to (a) pay the Escrow Agent upon execution
of this Escrow Agreement and from time to time thereafter the fees set forth in



 


6

















 


Schedule
4 attached
hereto, and (b) pay or reimburse the Escrow Agent upon request for all
reasonable expenses, disbursements and advances, including reasonable attorney’s
fees and expenses, incurred or made by it in connection with the preparation,
execution, performance, delivery, modification and termination of this Escrow
Agreement.  All amounts payable pursuant
to this Section 8 shall be payable 50% by Parent and 50% by the
Stockholders’ Agent.


 


9.                                       Indemnity. 
Parent and the Stockholders’ Agent shall each indemnify, defend and save
harmless the Escrow Agent and its directors, officers, agents and employees
(the “indemnitees”) from 50% (for a
total of 100%) of all loss, claim, liability or expense (including the
reasonable fees and expenses of outside counsel) arising out of or in
connection with (a) the Escrow Agent’s execution and performance of this
Escrow Agreement, except in the case of any indemnitee to the extent that such
loss, liability or expense is due to the gross negligence or willful misconduct
of such indemnitee, or (b) its following any instructions or other
directions from Parent or from Parent and the Stockholders’ Agent, except to
the extent that its following any such instruction or direction is expressly
forbidden by the terms hereof.  The
parties hereto acknowledge that the foregoing indemnities shall survive the
resignation or removal of the Escrow Agent or the termination of this Escrow
Agreement.  Parent and Stockholders’
Agent hereby grant the Escrow Agent a right of set-off against the Escrow Fund
for the payment of any claim for indemnification, compensation, expenses and
amounts due hereunder by or from the Stockholders’ Agent.


 


10.                                 Account Opening Information/TINs/Tax Reporting.


 


(a)                                  Upon
execution of this Escrow Agreement, Parent and Stockholders’ Agent shall
provide the Escrow Agent with fully executed W-9 IRS forms, which shall include
Parent’s and the Escrow Participants’ respective federal tax identification
numbers.  The
parties understand that if such tax reporting documentation is not provided and
certified to the Escrow Agent, the Escrow Agent may be required by the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder,
to withhold a portion of any interest or other income earned on the investment
of the Escrow Fund pursuant to this Escrow Agreement.  The Escrow Agent shall report any
interest or other amounts earned on the on the Escrow Fund to the Escrow
Participants, and the Escrow Participants shall report such amount and pay
taxes due thereon.


 


(b)                                  The Escrow Participants shall be
reimbursed from the Escrow Funds for the payment of such taxes as follows:  (i) not later than seven Business Days
prior to each of September 15, December 15, April 15 and June 15
(each, an “Estimated Tax Date”), the Escrow Agent shall provide to Parent and Stockholders’ Agent a
statement of investment income posted to the Escrow Account ending immediately
prior to the Estimated Tax Date; (ii) not later than five (5) Business
Days prior to the Estimated Tax Date, the Stockholders’ Agent shall provide the
Escrow Agent and Parent with a schedule setting forth the amount of taxes
payable by the Escrow Participants with respect to such taxable income, taking
into account the highest marginal federal, state and local Tax rates applicable
to an individual resident in the State of Massachusetts for such tax period;
and (iii) not later than three (3) Business Days prior to the
Estimated Tax Date, the Escrow Agent shall release to accounts designated by
the Stockholders’ Agent an amount, in cash, equal to such taxes, and shall
deliver written notice of such release to Parent.


 


7
















 


(c)                                  For each disbursement from the
Escrow Fund to the Escrow Participants, the Stockholders’ Agent shall prepare
and present to the Escrow Agent a schedule indicating the apportionment of such
disbursement between (A) principal to be reported on Forms 1099-B or other
tax forms that may be applicable, and (B) imputed interest to be reported
on IRS Form 1099-INT or 1042S (or other applicable form).  The Escrow Agent shall annually report such
disbursement on the tax forms indicated in such schedule.


 


11.                                 Notices. All
communications hereunder shall be in writing and shall be deemed to be duly
given and received:


 


(a)                                  upon
delivery if delivered personally or upon confirmed transmittal if by facsimile;


 


(b)                                 on
the next Business Day if sent by overnight courier; or


 


(c)                                  four (4) Business
Days after mailing if mailed by prepaid registered mail, return receipt
requested, to the appropriate notice address set forth on Schedule 5 or at such other address as
any party hereto may have furnished to the other parties in writing by
registered mail, return receipt requested.


 


In the event that the Escrow Agent, in its reasonable discretion,
shall determine that an emergency exists, the Escrow Agent may use such other
reasonable means of communication as the Escrow Agent deems appropriate.  “Business Day”
shall mean any day other than a Saturday, Sunday or any other day on which the
Escrow Agent located at the notice address set forth on Schedule 5 is authorized or required by
law or executive order to remain closed.


 


12.                                 Miscellaneous.  The provisions of this Escrow Agreement may
be waived, altered, amended or supplemented, in whole or in part, only by a
writing signed by all of the parties hereto. 
Neither this Escrow Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party, except as provided in Section 7,
without the prior consent of the other parties. 
This Escrow Agreement shall be governed by and construed under the laws
of the State of Minnesota, without regard to its conflicts of laws
principles.  Each party hereto
irrevocably waives any objection on the grounds of venue, forum non-conveniens
or any similar grounds and irrevocably consents to service of process by mail
or in any other manner permitted by applicable law and consents to the
exclusive jurisdiction of the courts located in the State of Minnesota.  The parties further
hereby waive any right to a trial by jury with respect to any lawsuit or
judicial proceeding arising or relating to this Escrow Agreement.  No party to this Escrow Agreement is liable
to any other party for losses due to, or if it is unable to perform its
obligations under the terms of this Escrow Agreement because of, acts of God,
fire, floods, strikes, equipment or transmission failure, or other causes reasonably
beyond its control.  This Escrow
Agreement may be executed in one or more counterparts (including counterparts
delivered by facsimile or e-mail), each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Headings used in this Escrow Agreement are for ease of reference only and shall
not be used to interpret any aspect of this Escrow Agreement. This Escrow
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes and replaces all prior and
contemporaneous 


 


8

















 


representations, warranties, understandings or agreements, written
or oral, regarding such subject matter. Failure by any party to enforce any
provision of this Escrow Agreement will not be deemed a waiver of future
enforcement of that or any other provision.


 


[Remainder of Page Intentionally Left
Blank]


 


9

















 


IN WITNESS WHEREOF, the parties
hereto have executed this Escrow Agreement as of the Effective Date.


 


	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Escrow Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LAWSON SOFTWARE AMERICAS, INC.,

  
	
   

  	
  as Parent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  R. David Tabors

  
	
   

  	
  as the Stockholders’ Agent

  



 

















 


Schedule 1


 


Agency
and Custody Account Direction


For Cash
Balances


Wells
Fargo Money Market Deposit Accounts


 


Direction to use
the following Wells Fargo Money Market Deposit Accounts for Cash Balances for
the escrow account or accounts (the “Account”)
established under this Escrow Agreement to which this Schedule 1 is attached.


 


In the absence of
written investment instructions, the Escrow Agent is hereby directed to
deposit, as indicated below, or as Parent and the Stockholders’ Agent shall
direct further in writing from time to time, all cash in the Account in the
following money market deposit account of Wells Fargo Bank, National
Association:


 


Wells Fargo
Institutional Money Market Deposit Account (IMMDA)


 


Parent and the
Stockholders’ Agent understand that amounts on deposit in the IMMDA are
insured, subject to the applicable rules and regulations of the Federal
Deposit Insurance Corporation (FDIC), in the basic FDIC insurance amount of
$100,000 per depositor, per insured bank. This includes principal and accrued
interest up to a total of $100,000.  Note:  On May 20,
2009, FDIC deposit insurance temporarily increased from $100,000 to $250,000
per depositor through December 31, 2013.


 


Parent and the
Stockholders’ Agent acknowledge that they have full power to direct investments
of the Account.


 


Parent and the
Stockholders’ Agent understand that they may change this direction at any time
and that it shall continue in effect until revoked or modified by Parent and
Stockholders’ Agent by written notice to Escrow Agent.


 

















 


Schedule 2


 


Wire Instructions


 

















 


Schedule 3


 


Certificate
as to Authorized Signatures


 


The specimen
signatures shown below are the specimen signatures of the individuals who have
been designated as authorized representatives of Lawson Software Americas, Inc.
and are authorized to initiate and approve transactions of all types for the
escrow account or accounts established under the Escrow Agreement to which this
Schedule 3 is attached, on behalf of Parent.


 


 




	
  Name /
  Title

  	
   

  	
  Specimen
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  






 

















 


Schedule 4


 


Fee Schedule


 


A
one-time non-refundable fee of $2,500 will be paid to the Escrow Agent upon the
execution of this Escrow Agreement by Parent and the Stockholders’ Agent.


 

















 


Schedule 5


 


Addresses


 


Escrow Agent:                                                                 Wells Fargo Bank, National Association


625 Marquette Ave, 11th Floor-MAC N9311-115


Minneapolis, MN 55479


Attention:  Aaron Soper


Facsimile:  (612) 667-2140


 
















 


ANNEX I


 


WORKING
CAPITAL ADJUSTMENTS


 

















 


	
   

  	
   

  	
  Balance Sheet As of 11/30/09

  	
   

  	
  Adjustments for Sample Calculation

  of Working Capital

  	
   

  	
  Notes

  	
   

  	
  Sample Calculation of Working

  Capital as of 11/09

  	
   

  
	
  Assets

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Assets

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash and Cash Equivalents

  	
   

  	
  $

  	
  7,604

  	
   

  	
  $

  	
  (7,604

  	
  )

  	
  (a)

  	
   

  	
  $

  	
  —

  	
   

  
	
  Accounts Receivable, net

  	
   

  	
  12,924

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  12,924

  	
   

  
	
  Deferred Tax Assets

  	
   

  	
  1,745

  	
   

  	
  (1,745

  	
  )

  	
  (a)

  	
   

  	
  $

  	
  —

  	
   

  
	
  Prepaid Expenses and Other

  	
   

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2,500

  	
   

  
	
  Total
  Current Assets

  	
   

  	
  24,773

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  15,424

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equipment &
  Leasehold Improvements, net

  	
   

  	
  3,104

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intangible Assets, net

  	
   

  	
  69,271

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Goodwill

  	
   

  	
  42,599

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deferred Financing Costs,
  net

  	
   

  	
  855

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  Assets

  	
   

  	
  $

  	
  140,602

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Liabilities &
  Stockholders Equity

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Liabilities

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts Payable

  	
   

  	
  $

  	
  1,849

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,849

  	
   

  
	
  Accrued Expenses and Other

  	
   

  	
  8,121

  	
   

  	
  (4,205

  	
  )

  	
  (b)

  	
   

  	
  $

  	
  3,916

  	
   

  
	
  Deferred Revenue

  	
   

  	
  17,818

  	
   

  	
  (17,818

  	
  )

  	
  (a)

  	
   

  	
  $

  	
  —

  	
   

  
	
  Revolver

  	
   

  	
  27

  	
   

  	
  (27

  	
  )

  	
  (a)

  	
   

  	
  —

  	
   

  
	
  Total
  Current Liabilities

  	
   

  	
  27,815

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  5,765

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Long Term Liabilities

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Sample Working Capital as if the merger occurred on 11/30/09

  	
   

  	
   

  	
  $

  	
  9,659

  	
   

  
	
  Deferred Tax Liabilities

  	
   

  	
  21,935

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term Debt

  	
   

  	
  79,244

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fair Value of Interest Rate
  Swap

  	
   

  	
  2,209

  	
   

  	
  Working Capital Baseline

  	
   

  	
   

  	
   

  	
  $

  	
  5,000

  	
   

  
	
  Total Long
  Term Liabilities

  	
   

  	
  103,388

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Retained Earnings and
  Stockholders Equity

  	
   

  	
  9,399

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  Liabilities & Stockholders Equity

  	
   

  	
  $

  	
  140,602

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 






NOTES:


(a)                    Excluded from the definition
of working capital


(b)                   Adjusment to reflect
repayment of dividend in connetion with the merger


 
















 


DISCLOSURE SCHEDULE


 


This Disclosure Schedule is
being delivered by QUOVADX HOLDINGS, INC. (the “Company”) in connection with
the execution of the Agreement and Plan of Merger (the “Agreement”),
by and among the Company, LAWSON SOFTWARE AMERICAS, INC., a Delaware corporation (“Parent”), HIGHWAY ACQUISITION, INC., a
Delaware corporation and wholly owned subsidiary of Parent (the “Merger Sub”), and BATTERY INVESTMENT PARTNERS VII, LLC and BATTERY VENTURES VII, L.P. (collectively, the “Principal Stockholders”), and R. DAVID TABORS in its capacity as the Stockholders’
Agent.  Capitalized terms used in this
Disclosure Schedule but not otherwise defined will have the meanings ascribed
to such terms in the Agreement.


 


No reference to or disclosure of any item or other matter in this
Disclosure Schedule shall be construed as an admission or indication that such
item or other matter is material or that such item or other matter is required
to be referred to or disclosed in this Disclosure Schedule.  No disclosure in this Disclosure Schedule
relating to any possible breach or violation of any agreement, law or
regulation shall be construed as an admission or indication that any such
breach or violation exists or has actually occurred.


 


The headings contained in this Disclosure Schedule are included for
convenience only, and are not intended to limit the effect of the disclosures
contained in this Disclosure Schedule or to expand the scope of the information
required to be disclosed in this Disclosure Schedule.


 


The Disclosure Schedule is arranged in
numbered sections corresponding to the sections of the Agreement and any
information disclosed herein shall be deemed disclosed and incorporated into
any other section of the Disclosure Schedule as and to the extent that it is
reasonably apparent on the face of the disclosure contained therein that such
deemed disclosure and incorporation would be appropriate.


 

















 


2.2          Corporate Authorization.


 


(b)                     1.  Pursuant to the Company’s Amended and
Restated Certificate of Incorporation, the written consent or affirmative vote
of the holders of at least 50% of the outstanding shares of Series A
Preferred Stock of the Company is required to approve the Agreement.


 


2. 
Pursuant to Section 251 of the DGCL, the written consent or
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company is required to approve the Agreement.


 

















 


2.3          Subsidiaries.


 


(a)                      1.  Healthvision Solutions, Inc., a Delaware
corporation.  The Company owns 100% of
the equity securities of Healthvision Solutions, Inc.


 


2.  HV
Solutions Canada Inc., a corporation organized under the laws of Canada.  Healthvision Solutions, Inc. owns 100%
of the equity securities of HV Solutions Canada Inc.


 


3. 
Healthvision, Inc., a Delaware corporation.  Healthvision Solutions, Inc. owns 100%
of the equity securities of Healthvision, Inc.


 


4. 
Advica Health Resources, Inc., a Delaware corporation.  Healthvision Solutions, Inc. owns 100%
of the equity securities of Advica Health Resources, Inc.


 


5.  Confer
Software, Inc., a California corporation. 
Healthvision Solutions, Inc. owns 100% of the equity securities of
Confer Software, Inc.  Confer
Software, Inc. is not in good standing the state of California.


 


6. 
Quovadx International, Inc., a Colorado corporation.  Healthvision Solutions, Inc. owns 100%
of the equity securities of Quovadx International, Inc.


 


7.  HV
Solutions, Shanghai, a China limited liability company.  Healthvision Solutions, Inc. owns 100%
of the equity securities of HV Solutions, Shanghai.


 

















 


(b)                     Pursuant to the Amended and
Restated Security Agreement dated July 15, 2008 by and among Quovadx
Holdings, Inc., Healthvision Solutions, Inc., Healthvision, Inc.,
HV Solutions Canada Inc., Advica Health Resources, Inc., Confer Software, Inc.,
Quovadx International, Inc. and Wells Fargo Foothill, Inc., in its
capacity as Agent for the Lender Group and the Bank Product Provider (as
defined in the Credit Agreement), the capital stock of the Company Subsidiaries
is pledged to Wells Fargo Foothill, Inc. as follows:


 


	
  Name of Pledgor

  	
   

  	
  Name of Pledged

  Company

  	
   

  	
  Number of

  Shares/Units

  	
   

  	
  Class of

  Interests

  	
   

  	
  Percentage of Class

  Pledged

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quovadx Holdings, Inc.

  	
   

  	
  Healthvision Solutions, Inc. 

  	
   

  	
  3000

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  65

  	
   

  	
  Common

  	
   

  	
  65%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.  

  	
   

  	
  Healthvision, Inc.

  	
   

  	
  1000

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.  

  	
   

  	
  Advica Health Resources, Inc.

  	
   

  	
  100

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.  

  	
   

  	
  Confer Software, Inc.

  	
   

  	
  1000

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.  

  	
   

  	
  Quovadx International, Inc.

  	
   

  	
  1000

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Healthvision Solutions, Inc.  

  	
   

  	
  HV Solutions, Shanghai

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  100%

  



 


All obligations underlying the security
interest granted in connection with the Amended and Restated Security Agreement
will be paid at Closing and the Liens on the capital stock of the Company
Subsidiaries will be released by Wells Fargo Foothill, Inc.


 


See Disclosure under Section 2.4 relating
to capitalization.


 

















 


2.4          Capitalization.


 


(a)


 


Capitalization Table:


 


	
  Stockholder

  	
   

  	
  Series A Preferred

  Shares

  	
   

  	
  Common Shares

  	
   

  	
  Total Shares

  	
   

  
	
  Battery Ventures VII, L.P.

  	
   

  	
  2,239,098.40

  	
   

  	
  17,661,600

  	
   

  	
  19,990,698.40

  	
   

  
	
  Battery Investment
  Partners VII, LLC

  	
   

  	
  42,901.60

  	
   

  	
  338,400

  	
   

  	
  381,301.60

  	
   

  
	
  Russell Fleischer

  	
   

  	
  0

  	
   

  	
  983,543

  	
   

  	
  983,543

  	
   

  
	
  Mike Epplen 

  	
   

  	
  0

  	
   

  	
  196,709

  	
   

  	
  196,709

  	
   

  
	
  Carolyn Jolley 

  	
   

  	
  0

  	
   

  	
  147,531

  	
   

  	
  147,531

  	
   

  
	
  Jeff Tognoni

  	
   

  	
  0

  	
   

  	
  147,531

  	
   

  	
  147,531

  	
   

  
	
  May Hu

  	
   

  	
  0

  	
   

  	
  98,354

  	
   

  	
  98,354

  	
   

  
	
  Lauren Hill 

  	
   

  	
  0

  	
   

  	
  49,177

  	
   

  	
  49,177

  	
   

  
	
  Paul Bellamy 

  	
   

  	
  0

  	
   

  	
  49,177

  	
   

  	
  49,177

  	
   

  
	
  Jim Elder 

  	
   

  	
  0

  	
   

  	
  49,177

  	
   

  	
  49,177

  	
   

  
	
  Totals:

  	
   

  	
  2,282,000

  	
   

  	
  19,721,199

  	
   

  	
  22,199,907

  	
   

  



 


1.  The
Stockholder Agreement entered into as of August 23, 2007, by and among the
Company, individual managers listed on Schedule A thereto and the investors
listed on Schedule B thereto contains certain rights of first refusal, “co-sale”
rights, “drag-along” rights and voting rights, as more particularly described
therein.


 


2. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Russell Fleischer.


 


3. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Paul Bellamy.


 


4. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Lauren Hill.


 


5. 
Stock Purchase Agreement entered into as of August 23, 2007,
between the Company and May Hu.


 

















 


6. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Mike Epplen.


 


7. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Carolyn Jolley.


 


8. Stock Purchase Agreement entered into as
of August 23, 2007, between the Company and Jeffrey Tognoni.


 


9. Stock Purchase Agreement entered into as
of October 23, 2007, between the Company and Jim Elder.


 


(c)


 


Option Ledger:


 


	
  Optionholder

  	
   

  	
  Grant Date

  	
   

  	
  Vesting

  Commencement

  Date

  	
   

  	
  Number of Shares

  Subject to Option

  	
   

  	
  Exercise Price

  	
   

  
	
  Luc Gagnon

  	
   

  	
  10/29/08

  	
   

  	
  8/28/08

  	
   

  	
  147,531

  	
   

  	
  $

  	
  0.64

  	
   

  
	
  Ian Carmichael

  	
   

  	
  1/29/09

  	
   

  	
  1/7/09

  	
   

  	
  49,177

  	
   

  	
  $

  	
  0.69

  	
   

  



 


Vesting Schedule:  1/4th of the shares
vest one year after the Vesting Commencement Date; the balance of the shares
vest in a series of thirty-six (36) successive equal monthly installments
measured from the first anniversary of the Vesting Commencement Date.


 


See Disclosure in Section 2.4(a) regarding
the individual Stock Purchase Agreements granting the Company certain
repurchase and other rights as more fully described therein.


 


(d)                     The Stockholder Agreement
entered into as of August 23, 2007, by and among the Company, individual
managers listed on Schedule A thereto and the investors listed on Schedule B
thereto contains certain rights of first refusal, “co-sale” rights, “drag-along”
rights and voting rights, as more particularly described therein.


 

















 


2.5          Governmental Authorization.


 


The waiting period pursuant to the Hart
Scott-Rodino Antitrust Improvements Act of 1976 must expire prior to closing
the Transactions.


 

















 


2.6          Non-Contravention.


 


(a)           See
Disclosure under Schedule 2.2(b)(1) and (2).


 


(c)                      1.  The Master Distribution Agreement dated June 13,
2008, between in4tek, LTD. and Medisolution Ltd. requires in4tek, LTD’s consent
in connection with a change of control of HV Solutions Canada Inc.


 


2.  The
Value Added Reseller Product License Agreement dated January 1, 2009,
between Healthwise, Incorporated and Healthvision, Inc. requires
Healthwise, Incorporated’s consent in connection with a transfer of a
controlling interest of Healthvision, Inc.


 


3. 
Pursuant to the Distributor Agreement effective as of April 1,
2007, as amended, between Technidata S.A.S and Medisolution Ltd., Technidata
S.A.S. may terminate the Distributor Agreement if a material change occurs in
the control of HV Solutions Canada Inc.


 


4.  The
Standard Multi-Tenant Office Lease-Net dated August 20, 2009, between JD
Molex One, LLC, as Lessor, and Healthvision, Inc., as Lessee, requires
consent of the Lessor in connection with a change of control of Healthvision, Inc.


 


5.  The
Office Lease Agreement dated September 4, 2008, between 5000 Riverside
Associates, L.P., as Landlord, and Healthvision, Inc., as Tenant, requires
the consent of the Landlord in connection with a change of control of
Healthvision, Inc.


 


6.  The
Lease Agreement dated July 16, 2009, between Complexe Place Cremazie L.P.,
as Landlord, and HV Solutions Canada Inc., as Tenant, requires consent of the
Landlord in connection with a change of control of HV Solutions Canada Inc.


 

















 


2.8          No Undisclosed Liabilities.


 


Consistent with past practice, the Company
customarily accrues the following year-end liabilities in the ordinary course.  The Company views these year-end accruals of
liabilities as being in the ordinary course of business and by inclusion in
this Section 2.8 does not imply that there are no other ordinary course
accruals.


 


1.  The Company expects to accrue $650,000 in the
fourth quarter of 2009 for the payment of annual bonuses payable to employees
of the Company (in addition to the $400,000 already accrued as reflected on the
Most Recent Balance Sheet).


 


2.  $20,000 for the 2009 8800 401(k) testing.


 


3.  $40,000 for the 2009 Sales Club Trip in
addition to the existing accrued amounts.


 


4.  $50,000 for utilities, common area shared
expenses and other expenses related to inactive leases.


 


5.  $200,000 for United Kingdom Branch Taxes.


 


6.  $100,000 for Federal and State Taxes.


 


All of these accrued liabilities since the
Most Recent Balance Sheet Date will be reflected in the estimated Working
Capital delivered in connection with the Estimated Statement.


 

















 


2.9          Absence of Certain Changes.


 


(a)           None.


 


(b)           None.


 


(c)           None.


 


(d)           None.


 


(e)           None.


 


(f)            None.


 


(g)           1.  Order
Form No. 8 from CareSpark, Inc. dated December 21, 2009
pursuant to the Solutions Agreement #1 dated December 26, 2006 between
Healthvision Solutions, Inc. and CareSpark, Inc.


 


2. 
Order Form No. 5 from GE Healthcare dated December 23,
2009 pursuant to the OEM License Agreement dated June 30, 2006 between
Healthvision Solutions, Inc. and GE Healthcare.


 


3. 
Order Form No. 2 from Winnipeg Regional Health Authority dated
December 21, 2009 pursuant to the Master Agreement dated December 25,
2005 between Healthvision Solutions, Inc. and Winnipeg Regional Health
Authority.


 


4. 
Amendment 3 to the Master License, Maintenance and Services Agreement
dated December 11, 2009 between Healthvision Solutions, Inc. and
Wellpoint, Inc.


 


(h)           The Company received notice from Rockford
HealthSystems that Rockford will not renew their EMPI Maintenance (Initiate)
for 2010.  This is a subset of the
Company’s relationship with Rockford HealthSystems and the Company has not
received written notice affecting any other part of the current relationship.


 


(i)            None.


 


(j)            None.


 


(k)           None.


 


(l)            None.


 


(m)          None.


 


(n)           None.


 


(o)           None.


 


(p)           None.


 


(q)           None.


 


(r)            On December 7, 2009, the Company caused
Healthscope United/IPA, Inc., a New York corporation to be dissolved
pursuant to the Business Corporation Law of the State of New York.  Healthscope United/IPA, Inc. was an
inactive entity with no assets.


 

















 


(s)           None.


 


(t)            None.


 
















 


2.10        Properties.


 


(a)           Leased Real Property:


 


	
  LESSOR

  	
   

  	
  LESSEE

  	
   

  	
  ADDRESS

  	
   

  	
  LEASE

  TERM

  	
   

  	
  BASIC

  ANNUAL

  RENT

  	
   

  
	
  One Graystone Centre, L.P.

  	
   

  	
  Healthvision Solutions, Inc.

  	
   

  	
  3010 LBJ Freeway,

  Suite 475,

  Dallas, TX 75234

  	
   

  	
  2/1/2006-6/30/2011

  	
   

  	
  $

  	
  184,767

  	
   

  
	
  Douglas Emmett 2000, LLC

  	
   

  	
  Healthvision Solutions, Inc.

  	
   

  	
  21700 Oxnard Street,

  Suite 280,

  Woodland Hills, CA 91367

  	
   

  	
  3/1/2006-5/1/2010

  	
   

  	
  $

  	
  112,449

  	
   

  
	
  J.D. Molex One, LLC

  	
   

  	
  Healthvision, Inc.

  	
   

  	
  2465 Latham St.,

  Ste. 100,

  Mountain View, CA 94040

  	
   

  	
  9/2/2009-8/31/2015

  	
   

  	
  $

  	
  120,884

  	
   

  
	
  5000 Riverside Associates, L.P.

  	
   

  	
  Healthvision, Inc.

  	
   

  	
  5030 Riverside Drive,

  Suite 300,

  Irving, TX 75039

  	
   

  	
  11/1/2008-5/31/2016

  	
   

  	
  $

  	
  514,080

  	
   

  
	
  Societe En Caommandite Edifice Le Soleil

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  330 St. Valliers Est,

  Suite 230,

  Quebec City, Quebec, G1K 9C5

  	
   

  	
  11/1/2000-10/31/2010

  	
   

  	
  $

  	
  580,018 CAD

  	
   

  
	
  Complexe Place Cremazie, L.P.

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  110 Cremazie Blvd. West,

  Montreal, Quebec

  	
   

  	
  10/15/2009-10/31/2010

  	
   

  	
  $

  	
  75,084 CAD

  	
   

  
	
  Badenhurst-Airway Centre Ltd.

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  5935 Airport Road,

  Mississauga, Ontario

  	
   

  	
  7/1/2009-9/30/2014

  	
   

  	
  $

  	
  44,370 CAD

  	
   

  
	
  EDG

  	
   

  	
  HV Solutions, Shanghai

  	
   

  	
  545 Long Hua Road,

  West 3rd Floor Suite A,

  Shanghai, 200232, P.R. China

  	
   

  	
  04/1/2009 – 12/31/2011

  	
   

  	
  526,257 CNY

  	
   

  



 


(b)           Leased
Personal Property:


 


	
  LESSOR

  	
   

  	
  ITEM

  	
   

  	
  LEASE TERM

  	
   

  	
  BASIC ANNUAL

  PAYMENT

  	
   

  
	
  IBM Canada Limited

  	
   

  	
  Various desktop computer equipment items

  	
   

  	
  2/28/2009-2/28/2010

  	
   

  	
  $

  	
  34,230

  	
   

  
	
  Xerox

  	
   

  	
  Workcenter Pro 32 Series, print and fax machine for Irving, TX
  location

  	
   

  	
  7/1/2009-7/1/2010

  	
   

  	
  $

  	
  6,504

  	
   

  
	
  Xerox Canada Ltd.

  	
   

  	
  Workcenter Series copy, print and fax machine for Quebec City ,
  QC location

  	
   

  	
  9/2/2009-9/2/2010

  	
   

  	
  $

  	
  3,634

  	
   

  
	
  Xerox Canada Ltd.

  	
   

  	
  Workcenter Series copy, print and fax machine for Montreal, QC
  location

  	
   

  	
  12/10/2009-12/10/2010

  	
   

  	
  $

  	
  3,634

  	
   

  



 

















 


1. 
Valueplan Agreement dated March 28, 2007 between MediSolution Ltd.
and IBM, as amended by Amendment Agreement dated August 28, 2008 between
HV Solutions Canada Inc. and IBM Canada Limited for the lease of computer
equipment.


 


2. 
Sale and Maintenance Agreement dated May 2, 2003 between
Healthvision Inc. and Xerox.


 


3. 
Lease Agreement dated December 9, 2008 between HV Solutions Canada
Inc. and Xerox Canada Ltd.


 


4. 
Lease Agreement dated September 2, 2008 between HV Solutions Canada
Inc. and Xerox Canada Ltd.


 

















 


2.11        Title to Assets.


 


See Disclosure under Section 2.10(b) relating
to leased property.


 


Ontario Lien Registration 08-0512606-0002
relating to the Valueplan Agreement dated March 28, 2007 between
MediSolution Ltd. and IBM, as amended by Amendment Agreement dated August 28,
2008 between HV Solutions Canada Inc. and IBM Canada Limited for the lease of
computer equipment.


 


Ontario Lien Registration 08-0512606-0001
relating to the Valueplan Agreement dated March 28, 2007 between
MediSolution Ltd. and IBM, as amended by Amendment Agreement dated August 28,
2008 between HV Solutions Canada Inc. and IBM Canada Limited for the lease of
computer equipment.


 


Pursuant to the Amended and Restated Security
Agreement dated July 15, 2008 by and among Quovadx Holdings, Inc.,
Healthvision Solutions, Inc., Healthvision, Inc., HV Solutions Canada
Inc., Advica Health Resources, Inc., Confer Software, Inc., Quovadx
International, Inc. and Wells Fargo Foothill, Inc., in its capacity
as Agent for the Lender Group and the Bank Product Provider (as defined in the
Credit Agreement), Wells Fargo Foothill, Inc. has a lien on all assets
held by the Company and its Subsidiaries. 
All obligations underlying the security interest granted in connection
with the Amended and Restated Security Agreement will be paid at Closing and
the Liens on the assets of the Company and its Subsidiaries will be released by
Wells Fargo Foothill, Inc., including, but not limited to the following
specific Lien filings:


 


	
  Jurisdiction

  	
   

  	
  Registration / Filing

  Number

  	
   

  	
  Debtor

  	
   

  	
  Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware

  	
   

  	
  2007 2703634

  	
   

  	
  Quovadx Holdings, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  California

  	
   

  	
  07-7121318363

  	
   

  	
  Confer Software, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Colorado

  	
   

  	
  20072070844

  	
   

  	
  Quovadx International, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware

  	
   

  	
  2007-2599610

  	
   

  	
  Advica Health Resources, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware

  	
   

  	
  2008 2136693

  	
   

  	
  Healthvision Solutions, Ind.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delaware

  	
   

  	
  2007 3690244

  	
   

  	
  Healthvision, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ontario

  	
   

  	
  20080617 1100 1862 3317

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quebec

  	
   

  	
  08-410080-0001

  	
   

  	
  HV Solutions Canada Inc.

  	
   

  	
  Wells Fargo Foothill Canada, ULC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  USPTO

  	
   

  	
  Reel/Frame: 3850/0677

  	
   

  	
  Healthvision Solutions, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  USPTO

  	
   

  	
  Reel/Frame: 021489-0499

  	
   

  	
  Healthvision Solutions, Inc.  Healthvision, Inc.

  	
   

  	
  Wells Fargo Foothill, Inc.

  



 

















 


2.12        Taxes.


 


(a)


 


Tax filings by jurisdiction:


 


United States:


 


	
  Type of tax:

  	
   

  	
  Jurisdiction

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  Federal

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Alabama

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Arkansas

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of Arizona

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  State of California

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  City of Columbus, Ohio

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Colorado

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Connecticut

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  State of Florida

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of Georgia

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Indiana

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  Commonwealth of Kentucky

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  Commonwealth of Massachusetts

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of Minnesota

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of Mississippi

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  State of North Carolina

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of New Jersey

  
	
   

  	
   

  	
   

  
	
  Sales and Use

  	
   

  	
  State of New York

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of New Mexico

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of Ohio

  



 

















 


	
  Income

  	
   

  	
  State of Oregon

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  Commonwealth of Pennsylvania

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  State of South Carolina

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  State of Tennessee

  
	
   

  	
   

  	
   

  
	
  Income and Sales and Use

  	
   

  	
  State of Texas

  



 


Canada:


 


	
  Type of tax:

  	
   

  	
  Jurisdiction

  
	
   

  	
   

  	
   

  
	
  Income

  	
   

  	
  Canada Revenue Agency

  
	
   

  	
   

  	
   

  
	
  PST

  	
   

  	
  Ontario

  
	
   

  	
   

  	
   

  
	
  PST

  	
   

  	
  Quebec

  



 


United Kingdom:


 


Value Added Tax.


 


(b)


 


None.


 


(j)


 


The Company has not provided copies of Tax
Returns prior to 2007.


 


Tax Returns
Filed in 2007


 


	
  Jurisdiction

  	
   

  	
  Entity

  
	
  Fed

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  AZ

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  CA

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  KY

  	
   

  	
  Quovadx, Inc.

  
	
  NC

  	
   

  	
  Quovadx, Inc.

  
	
  TN

  	
   

  	
  Quovadx, Inc.

  
	
  PA

  	
   

  	
  Healthvision, Inc.

  
	
  CA

  	
   

  	
  Healthvision, Inc. and Subsidiary

  
	
  PA

  	
   

  	
  Healthvision, Inc.

  



 

















 


	
  OH

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  Columbus, OH

  	
   

  	
  Healthvision Solutions, Inc.

  



 


Tax Returns
Filed in 2008


 


	
  Jurisdiction

  	
   

  	
  Entity

  
	
  Ontario

  	
   

  	
  HV Solutions Canada, Inc.

  
	
  Quebec

  	
   

  	
  HV Solutions Canada, Inc.

  
	
  Canada

  	
   

  	
  HV Solutions Canada, Inc.

  
	
  Federal

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  AZ

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  CA

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  GA

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  KY

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  MA

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  MS

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  NC

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  NM

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  OR

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  PA

  	
   

  	
  Healthvision, Inc.

  
	
  SC

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  TN

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  OH

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  Columbus, OH

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  FL

  	
   

  	
  Healthvision, Inc.

  
	
  MA

  	
   

  	
  Healthvision, Inc.

  
	
  TX

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  



 


Estimated
Tax Payments made in 2009


 


	
  Jurisdiction

  	
   

  	
  Entity

  
	
  Federal

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  CA

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  GA

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  MA

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  AZ

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  OR

  	
   

  	
  Quovadx Holdings, Inc. and Subsidiaries

  
	
  KY

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  MS

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  NM

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  NC

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  SC

  	
   

  	
  Healthvision Solutions, Inc.

  
	
  TN

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


2.13        Litigation.


 


None.


 
















 


2.14                        Material Contracts.


 


(a)                                  Section 2.14
of the Disclosure Schedule specifically identifies by subsection each Contract
to which the Company or any Subsidiary is a party or by which the Company or
any Subsidiary is otherwise bound that constitutes a Material Contract, and any
amendments thereto.  References to
applicable subsections in Section 2.14 are included for convenience only,
and shall not limit the effect of the disclosures contained in this Section 2.14.


 


(i)            (B)           1.             Value Added
Marketing dated March 6, 2003 between Quovadx, Inc. and McKesson
Information Solutions, Inc.


 


2.             OEM License Agreement dated
June 30, 2006 between Quovadx, Inc. and GE Healthcare, as amended.


 


3.             Distributor Agreement dated
April 1, 2001 between Healthcare.Com Europe and Health Comm Gmbh, as
amended.


 


4.             Master Distributor Agreement
dated February 15, 2008 between Quovadx, Inc. and E. Novation France
SA.


 


5.             Master Distributor Agreement
dated December 19, 2005 between Quovadx, Inc. and E.Novation Lifeline
Networks.


 


(C)           1.             Distributor
Agreement effective as of April 1, 2007, as amended, between Technidata
S.A.S and Medisolution Ltd., Technidata S.A.S.


 


2.             Master Distribution Agreement dated June 13, 2008 between
Medisolution Ltd. and in4tek Ltd.


 


3.             Exclusive License Agreement
dated March 31, 2001 between Madison Information Technologies, Inc.
and Healthcare.com Corp.


 


4.             Value Added Reseller Product
License Agreement dated January 1, 2009 between Healthwise, Incorporated.


 


5.             Strategic Alliance Agreement
dated July 29, 2005 between Healthvision, Inc. and Medseek, Inc.


 


6.             Software License Agreement
entered into as of January 31, 2002 between Quovadx, Inc. and
BirdStep Technology Incorporated.


 


7.             Content Provider Agreement
dated January 1, 2000 between Healthvision, Inc. and MDConsult LLC.


 


8.             Sybase Master Partner
Agreement dated March 29, 2007 between MediSolution, Ltd. as amended.


 


9.             Human Atlas License
Agreement dated March 7, 2007 between Healthvision and Blausen
Communications, Inc., as amended.


 


10.           Value Added Reseller
Agreement entered into on February 5, 2004 between Quovadx, Inc. and
Boston Software Systems, Inc.


 

















 


11.           Distributor License
Agreement effective June 1, 1998 between Intersolv, Inc. and HIE, as
amended (DataDirect Technologies).


 


12.           Software License Agreement
effective August 26, 2002 between Quovadx, Inc. and
Edifecs, Inc. as amended.


 


13.           Standard License Agreement
entered into as of November 1, 1997 between Medisolution, Ltd. and First
Databank, Inc., as amended.


 


14.           License Agreement dated
May 18, 2000 between Healthvision, Inc. and Intelligent Medical
Objects, Inc. as amended.


 


15.           Entente De Services dated
April 20, 20009 between HV Solutions Canada, Inc. and Infopanama
Service Inc.


 


16.           Oracle PartnerNetwork
Application Specific Full Use Program Distribution Agreement dated
January 12, 2009 between Healthvision Solutions, Inc. and Oracle
USA, Inc.


 


17.           Sun Terms and Additions
Agreement made as of June 18, 2003 between Quovadx, Inc. and Sun
Microsystems, Inc., as amended.


 


18.           iForce Business Terms Letter
of Authorization effective February 1, 2004 between the Quovadx, Inc.
and Sun Microsystems, Inc.


 


(ii)           None.


 


(iii)          1.   Amended and Restated Credit Agreement by and
among Quovadx Holdings, Inc., each of its Subsidiaries that are
signatories thereto, lenders that are listed as signatories thereto, Wells
Fargo Foothill, Inc., Wells Fargo Foothill Canada ULC and Churchill
Financial LLC dated as of August 28, 2008 (the “Credit
Agreement”), and all ancillary agreements related thereto,
including, but not limited to the following:


 


2.   The Amended and Restated Trademark Security
Agreement dated July 15, 2008 by and among Quovadx Holdings, Inc.,
Healthvision Solutions, Inc., Healthvision, Inc., HV Solutions Canada
Inc., Advica Health Resources, Inc., Confer Software, Inc. and
Quovadx International, Inc. and Wells Fargo Foothill, Inc., in its
capacity as Agent for the Lender Group and the Bank Product Provider (as
defined in the Credit Agreement).   All
Liens granted in connection with this agreement shall be discharged at Closing.


 


3.   The Amended and Restated Copyright Security
Agreement dated July 15, 2008 by and among Quovadx Holdings, Inc.,
Healthvision Solutions, Inc., Healthvision, Inc., HV Solutions Canada
Inc., Advica Health Resources, Inc., Confer Software, Inc. and
Quovadx International, Inc. and Wells Fargo Foothill, Inc., in its
capacity as Agent for the Lender Group and the Bank Product Provider (as
defined in the Credit Agreement).  All
Liens granted in connection with this agreement shall be discharged at Closing.


 

















 


4.   The Amended and Restated Patent Security
Agreement dated July 15, 2008 by and among Quovadx Holdings, Inc.,
Healthvision Solutions, Inc., Healthvision, Inc., HV Solutions Canada
Inc., Advica Health Resources, Inc., Confer Software, Inc. and
Quovadx International, Inc. and Wells Fargo Foothill, Inc., in its
capacity as Agent for the Lender Group and the Bank Product Provider (as
defined in the Credit Agreement).  All
Liens granted in connection with this agreement shall be discharged at Closing.


 


5.   The Amended and Restated Security Agreement
dated July 15, 2008 by and among Quovadx Holdings, Inc., Healthvision
Solutions, Inc., Healthvision, Inc., HV Solutions Canada Inc., Advica
Health Resources, Inc., Confer Software, Inc. and Quovadx
International, Inc. and Wells Fargo Foothill, Inc., in its capacity
as Agent for the Lender Group and the Bank Product Provider (as defined in the
Credit Agreement).  All Liens granted in
connection with this agreement shall be discharged at Closing.


 


6.  
ISDA Master Agreement and Schedules dated November 4, 2008 by and
among Wells Fargo & Company, Healthvision Solutions, Inc. and HV
Solutions Canada Inc.


 


(iv)          Pursuant to
Amendment No. 3 dated September 15, 2009 between Healthvision
Solutions, Inc. and Hangzhou B-Soft Co., Ltd. to the Master Distribution
Agreement dated June 25, 2007 between Quovadx, Inc. and Hangzhou
B-Soft Co., Ltd., as the distributor, grants the distributor the exclusivity as
the distributor of the Company’s products specified on Addendum A to the Master
Agreement for the territory including mainland China, Hong Kong and Macau,
restricted to healthcare and the public health industry, for a period ending December 31,
2012.  The exclusivity is subject to the
exceptions set forth in Amendment No. 3, providing that the exclusivity
excludes (i) legacy distributors previously granted rights to resell or
distribute products or services in the exclusive territory, (ii) current
and future sublicensing rights of GE Healthcare and its subsidiaries, (iii) current
and future distribution and sublicensing rights of value-added resellers (and
their subdistributors), if applicable, granted the right to sublicense products
bundled with their software, hardware application and/or hardware services, and
(iv) current and future distribution and sublicensing rights of original
equipment manufacturers granted the right to sublicense the products embedded
with their software or hardware applications/services.


 


(v)           See Disclosure
under Section 2.10(a).


 


(vi)          See Disclosure
items 4-15 under Section 2.21.


 


(vii)         None.


 


(viii)        See Disclosure
items 12-14 under Section 2.21.


 


(ix)           See Disclosure
items 16-19 under Section 2.21.


 


Indemnification Agreement dated April 3,
2009 between Healthvision, Inc. and William Blair & Company,
L.L.C.


 

















 


(x)            None.


 


(xi)           See Disclosure
items 1, 2, 15 and 20 under Section 2.21.


 


(xii)          (y) Engagement
Letter by and between Healthvision, Inc. and William Blair &
Company, L.L.C.


 
















 


2.15        Intellectual Property.


 


(a)(i)       Patents


 


	
  PATENT/

  APPLICATION

  NO.

  	
   

  	
  PATENT NAME

  	
   

  	
  DATE OF

  PATENT/

  APPLICATION

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5,786,816

  	
   

  	
  Method and Apparatus for Graphical User Interface-Based and Variable
  Result Healthcare Plan

  	
   

  	
  7/28/1998

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5,826,237

  	
   

  	
  Apparatus and Method for Merging Medical Protocols

  	
   

  	
  10/20/1998

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5,850,221

  	
   

  	
  Apparatus and Method for a Graphic User Interface in a Medical
  Protocol System

  	
   

  	
  12/15/1998

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5,881,225

  	
   

  	
  Security Monitor for Controlling Functional Access to a Computer
  System

  	
   

  	
  3/9/1999

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5,886,693

  	
   

  	
  Method and Apparatus for Processing Data Across a Computer Network

  	
   

  	
  3/23/1999

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6,037,940

  	
   

  	
  Graphical User Interface in a Medical Protocol System Having Time
  Delay Rules and a Publishers View

  	
   

  	
  3/14/2000

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6,426,759

  	
   

  	
  Apparatus and Method for Managing Changes of Computerized Medical
  Protocols

  	
   

  	
  7/30/2002

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6,968,503

  	
   

  	
  XML User Interface for a Workflow Server

  	
   

  	
  11/22/2005

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  09/969,875

  	
   

  	
  Healthcare Management Services Systems and Method for Using the Same
  (USPTO)

  	
   

  	
  Date not available

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  09/418,390

  	
   

  	
  Computerized Device and Method for Management of Medical Information
  (USPTO)

  	
   

  	
  10/12/1999

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  09/833/089

  	
   

  	
  Healthcare Payment Compliance Management (USPTO)

  	
   

  	
  4/10/2001

  	
   

  	
  Healthvision, Inc.

  



 

















 


2.15        Intellectual Property.


 


(a)(i)       (continued)  Trademarks and
Servicemarks.


 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QDX

  	
   

  	
  U.S.

  	
   

  	
  Registration No. 2,969,109

  	
   

  	
  Registered: 07/19/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QUOVADX

  	
   

  	
  U.S.

  	
   

  	
  Application No.: 78/839,193

  Registration No.: 3,201,662

  	
   

  	
  Registered: 1/23/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QUOVADX

  	
   

  	
  U.S.

  	
   

  	
  Application No.: 78/834,685

  Registration No.: 3,201,559

  	
   

  	
  Registered: 1/23/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X (Stylized and Color)
 

  	
   

  	
  U.S.

  	
   

  	
  Application No. 78/561,093

  Registration No.  3,144,387

  	
   

  	
  Registered: 9/19/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Benelux (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861 077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Bulgaria (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Canada

  	
   

  	
  TMA 705,342

  	
   

  	
  Registered: 1/22/08

  Renewal Date: 1/22/23

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  China (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Croatia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Czech Republic (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Denmark (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.

  861077

  Granted Validity in Denmark:

  9/26/06

  	
   

  	
  Granted Validity in Denmark: 9/26/06 (no
  certificate is issued)

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Egypt

  	
   

  	
  Application No. 177010

  	
   

  	
  Letter from agent mark has been accepted;
  publication fees will be paid and mark will register 7/17/06. Fees paid:
  8/16/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Egypt

  	
   

  	
  Application No. 177011

  	
   

  	
  Letter from agent mark has been accepted;
  publication fees will be paid and mark will register 7/17/06 Fees paid:
  8/16/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Estonia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  EU (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.

  861077

  Statement of Grant of Protection issued: 11/23/05

  	
   

  	
  Registered: 7/8/05

  Statement of Grant of Protection issued 11/23/05

  Confirmation no oppositions filed: 8/25/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Finland (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  France (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Georgia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  Statement of Grant of Protection issued: 8/14/06

  	
   

  	
  Registered: 7/8/05 Statement of Grant of
  Protection issued: 8/14/06

  Opposition period ended/new

  Statement of Grant of Protection issued: 10/30/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Germany (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Greece (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Hungary (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.

  861077

  Statement of Grant of Protection issued:
  5/10/06

  	
   

  	
  Registered: 07/08/05

  Statement of Grant of Protection issued: 5/10/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  India

  	
   

  	
  Registration No. 01370229

  	
   

  	
  Registration Date: 3/28/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  India

  	
   

  	
  Registration No. 01370230

  	
   

  	
  Registration Date: 3/27/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Ireland (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.

  861077

  Statement of Grant of Protection issued: 4/3/06

  	
   

  	
  Registered: 7/8/05

  Statement of Grant of Protection issued: 4/3/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Italy (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Australia, Belarus, Benelux, Bulgaria, China,
  Croatia, Czech Republic, Denmark, Estonia, CTM, Finland, France, Georgia,
  Germany, Greece, Hungary, Ireland, Italy, Japan, Kenya, Lesotho, Lithuania,
  Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Spain,
  Sweden, Ukraine, U.K., Zambia

  	
   

  	
  International Application No.

  A0001954

  Registration No. 861,077

  	
   

  	
  Registered: 07/08/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Japan (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  Registration No. 861,077

  	
   

  	
  Registered: 11/17/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Kenya (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Lesotho (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Lithuania (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 
















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Norway (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  Statement of Grant of Protection issued:
  7/27/06

  	
   

  	
  Registered: 7/8/05

  Statement of Grant of Protection issued: 7/27/06 Opposition period ended —
  new Statement of Grant of Protection issued: 9/15/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Poland (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Portugal (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Romania (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Russia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Saudi Arabia

  	
   

  	
  Application No.: 100944

  Registration No.: 875/32

  	
   

  	
  Registered: 11/28/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Saudi Arabia

  	
   

  	
  Application No.: 100945

  Registration No.: 875/33

  	
   

  	
  Registered: 11/26/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Slovakia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  South Africa

  	
   

  	
  Application No. 2005/13972-3

  	
   

  	
  O/A issued: 10/14/06

  Response filed: 11/10/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Spain (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Sweden (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  Provisional Refusal issued:

  1/26/07

  Email to agent to respond to Refusal: 3/12/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Taiwan

  	
   

  	
  Application No. (94) 33106

  Registration No. 1192020

  	
   

  	
  Registered: 1/16/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Taiwan

  	
   

  	
  Application No. (94) 33105

  Registration No.  1203093

  	
   

  	
  Registered: 4/1/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Ukraine (Madrid Protocol)

  	
   

  	
  International Application No. 

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  United Arab Emirates

  	
   

  	
  Application No. 71219

  Registration No. 77399

  	
   

  	
  Registered: 11/12/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  United Arab Emirates

  	
   

  	
  Application No. 71220

  Registration No.  59312

  	
   

  	
  Registered: 02/04/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  United Kingdom (Madrid Protocol)

  	
   

  	
  International Application No. 

  A0001954

  International Registration No. 

  861077

  Statement of Grant of Protection Issued: 5/9/0

  	
   

  	
  Registered: 07/08/05

  Statement of Grant of Protection Issued: 5/9/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  U.S.

  	
   

  	
  Application No.: 74/588,530

  Registration No. 1,994,113

  	
   

  	
  Registered: 8/13/96

  Notice of acceptance of Renewal received:
  10/17/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  U.S.

  	
   

  	
  Application No. 78/546,487

  Registration No. 3,160,449

  	
   

  	
  Registered: 10/17/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  U.S.

  	
   

  	
  Application No. 78/546,498

  Registration No. 3,160,451

  	
   

  	
  Registered: 10/17/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLOVERLEAF

  	
   

  	
  Zambia (Madrid Protocol)

  	
   

  	
  International Application No.

  A0001954

  International Registration No.:

  861077

  	
   

  	
  Registered: 7/8/05

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  

  CLOVERLEAF

  Design in Color

   

  Quovadx is the Registrant

  	
   

  	
  U.S.

  	
   

  	
  Serial No. 78/557,272

  Registration No. 3,152,100

  	
   

  	
  Registered: 10/3/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  

  CLOVERLEAF

  Design in Color

  	
   

  	
  U.S.

  	
   

  	
  Serial No. 78/557,274

  Registration No.  3,160,529

  	
   

  	
  Registered: 10/17/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CONNECTED BY CLOVERLEAF

  	
   

  	
  U.S.

  	
   

  	
  Serial No. 78/552,929

  Registration No.  3,155,101

  	
   

  	
  Registered: 10/10/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CONNECTED BY CLOVERLEAF

  	
   

  	
  U.S.

  	
   

  	
  Serial No. 78/552,931

  Registration No.  3,152,085

  	
   

  	
  Registered: 10/3/06

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HXML

  	
   

  	
  U.S.

  	
   

  	
  Registration No. 2,594,380

  	
   

  	
  Registered: 7/16/02

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INSURENET

  	
   

  	
  U.S.

  	
   

  	
  Application No. 76/006,967

  Registration No. 2,511,895

  	
   

  	
  Registered: 11/27/01

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INSURENET

  	
   

  	
  U.S.

  	
   

  	
  Application No.  76/006,964

  Registration No. 2,565,985

  	
   

  	
  Registered: 4/30/02

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIVISIT

  	
   

  	
  Canada

  	
   

  	
  TMA 524,469

  	
   

  	
  Renewal Date: 5/18/15

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDICONNECT

  	
   

  	
  Canada

  	
   

  	
  TMA 524,470

  	
   

  	
  Renewal Date: 5/8/15

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDILAB

  	
   

  	
  Canada

  	
   

  	
  TMA 448,151

  	
   

  	
  Renewal Date: 9/22/10

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDICHELD

  	
   

  	
  Canada

  	
   

  	
  TMA 509,263

  	
   

  	
  Renewal Date: 3/12/14

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIRAD

  	
   

  	
  Canada

  	
   

  	
  TMA 448,153

  	
   

  	
  Renewal Date: 9/22/10

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIPHARM

  	
   

  	
  Canada

  	
   

  	
  TMA 448,949

  	
   

  	
  Renewal Date: 10/13/10

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIPATIENT

  	
   

  	
  Canada

  	
   

  	
  TMA 448,946

  	
   

  	
  Renewal Date: 10/13/10

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDICLINIC & Design

  	
   

  	
  Canada

  	
   

  	
  TMA 513,072

  	
   

  	
  Renewal Date: 7/22/14

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIWEB

  	
   

  	
  Canada

  	
   

  	
  TMA 668,160

  	
   

  	
  Renewal Date: 7/18/21

  	
   

  	
  HV Solutions Canada Inc.

  



 

















 


	
  MARK

  	
   

  	
  COUNTRY

  	
   

  	
  APP./REG. NO.

  	
   

  	
  STATUS

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIWEB

  	
   

  	
  Canada

  	
   

  	
  TMA 668,161

  	
   

  	
  Renewal Date: 7/18/21

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIPLAN & Design

  	
   

  	
  Canada

  	
   

  	
  TMA 462,480

  	
   

  	
  Renewal Date: 8/30/21

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDIRESULT

  	
   

  	
  Canada

  	
   

  	
  TMA 452,640

  	
   

  	
  Renewal Date: 12/29/15

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDISERVICES & Design

  	
   

  	
  Canada

  	
   

  	
  TMA 464,324

  	
   

  	
  Renewal Date: 10/18/21

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GLOBE Design

  	
   

  	
  Canada

  	
   

  	
  TMA 455,062

  	
   

  	
  Renewal Date: 3/8/21

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HEALTHVISION

  	
   

  	
  U.S.

  	
   

  	
  Serial Number 75878567

  Registration Number 2511693

  	
   

  	
  Registered 11/27/2001

  	
   

  	
  Healthvision, Inc.

  



 

















 


	
  2.15

  	
  Intellectual Property.

  
	
   

  	
   

  
	
  (a)(i)

  	
  (continued) 
  Registered Copyrights.

  



 


	
  PRODUCT

  	
   

  	
  VERSION

  	
   

  	
  REGISTRANT

  	
   

  
	
  Cloverleaf Secure Object
  Client

  	
   

  	
  TX-6-461-312

  	
   

  	
  Healthvision Solutions, Inc.

  	
   

  



 
















 


	
  2.15

  	
  Intellectual Property.

  
	
   

  	
   

  
	
  (a)(i)

  	
  (continued)  Unregistered Copyrights.

  



 


	
  PRODUCT

  	
   

  	
  VERSION

  	
   

  	
  APPLICATION
  DATE

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediClinic

  	
   

  	
  all versions including 4.x (including all versions of MediPlan,
  MediCheld and MediResult)

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediData 

  	
   

  	
  all versions including 6.21

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediWeb

  	
   

  	
  all versions including 2.0

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediFrame

  	
   

  	
  all versions including 1.06

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OLAP

  	
   

  	
  cubes and viewers associated with HIS products listed in this section

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediAR

  	
   

  	
  including version 3.1

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  USNET

  	
   

  	
  all versions including 3.10

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediRad

  	
   

  	
  all versions including 4.11

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediText

  	
   

  	
  all versions including 4.11

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MRadSend

  	
   

  	
  all versions including 10.0

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediPharm

  	
   

  	
  all versions including 1 .08.0

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediPatient

  	
   

  	
  all versions including 7.00

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediVisit

  	
   

  	
  all versions including 4.03

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediIndex

  	
   

  	
  all versions including 3.00

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediInfra

  	
   

  	
  all versions including 3.00

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Série-I-Medico

  	
   

  	
  all versions (legacy)

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  



 

















 


	
  PRODUCT

  	
   

  	
  VERSION

  	
   

  	
  APPLICATION
  DATE

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Série-I-Clinic

  	
   

  	
  all versions (legacy)

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Impromptu

  	
   

  	
  HIS catalogs

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediConnect

  	
   

  	
  all versions

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DBstat

  	
   

  	
  all versions

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Internal Common Software Tools Library

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  	
  HV Solutions Canada Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BPMS

  	
   

  	
  5.2.1

  	
   

  	
  7/11/07

  	
   

  	
  Confer Software, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BPMS

  	
   

  	
  5.5

  	
   

  	
  7/11/07

  	
   

  	
  Confer Software, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cloverleaf Integration Services

  	
   

  	
  5.5

  	
   

  	
  7/11/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cloverleaf Integration Services

  	
   

  	
  5.4.1

  	
   

  	
  7/11/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global Monitor

  	
   

  	
  2.3

  	
   

  	
  7/11/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global Monitor

  	
   

  	
  2.2

  	
   

  	
  7/11/07

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Security Server

  	
   

  	
  5.5

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Security Server

  	
   

  	
  5.4.1

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Data Integrator

  	
   

  	
  5.5

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Data Integrator

  	
   

  	
  5.4.1

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Secure Messenger

  	
   

  	
  5.5

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Secure Messenger

  	
   

  	
  5.4.1

  	
   

  	
  N/A

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intelligent Broker

  	
   

  	
  2.1

  	
   

  	
  7/11/07

  	
   

  	
  Confer Software, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intelligent Broker

  	
   

  	
  2.0

  	
   

  	
  9/26/08

  	
   

  	
  Confer Software, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clinical Aps

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clinical Site Specific

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  eHealthSource

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HV_Consumer

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  



 

















 


	
  PRODUCT

  	
   

  	
  VERSION

  	
   

  	
  APPLICATION
  DATE

  	
   

  	
  OWNER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VHA2

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Documentation

  	
   

  	
  NA

  	
   

  	
  N/A

  	
   

  	
  Healthvision, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QDX Integrator Cloverleaf

  	
   

  	
  3.5.2

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QDX Integrator Cloverleaf

  	
   

  	
  3.8.1

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cloverleaf Integration Services

  	
   

  	
  5.0

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cloverleaf Integration Services

  	
   

  	
  5.6

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global Monitor

  	
   

  	
  2.2

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global Monitor

  	
   

  	
  3.0

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intelligent Health Broker

  	
   

  	
  2.0

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intelligent Health Broker

  	
   

  	
  2.1

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INSURENET Hub

  	
   

  	
  3.1

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INSURENET Hub

  	
   

  	
  4.2

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cloverleaf Integration Services 
  

  	
   

  	
  4.1

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IHE Infrastructure Adaptor 

  	
   

  	
  2.1

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IHE Infrastructure Adaptor 

  	
   

  	
  3.0

  	
   

  	
  9/26/08

  	
   

  	
  Healthvision Solutions, Inc.

  



 

















 


2.15        Intellectual Property.


 


(a)(ii)


 


See Disclosure under Section 2.14(a)(i)(C)


 


See Disclosure items 1-3 under Section 2.15(b)(ii).


 


See Disclosure under Section 2.15(h).


 
















 


2.15                        Intellectual
Property.


 


(b)(i)                  1.  Pursuant to the Amended and Restated
Trademark Security Agreement dated July 15, 2008 by and among Quovadx
Holdings, Inc., Healthvision Solutions, Inc., Healthvision, Inc.,
HV Solutions Canada Inc., Advica Health Resources, Inc., Confer Software, Inc.
and Quovadx International, Inc. and Wells Fargo Foothill, Inc., in
its capacity as Agent for the Lender Group and the Bank Product Provider, Wells
Fargo Foothill, Inc. has a Lien on all of the Company’s and its Subsidiaries’
trademarks.  All Liens granted in
connection with this agreement shall be discharged at Closing.


 


2. 
Pursuant to the Amended and Restated Copyright Security Agreement dated July 15,
2008 by and among Quovadx Holdings, Inc., Healthvision Solutions, Inc.,
Healthvision, Inc., HV Solutions Canada Inc., Advica Health Resources, Inc.,
Confer Software, Inc. and Quovadx International, Inc. and Wells Fargo
Foothill, Inc., in its capacity as Agent for the Lender Group and the Bank
Product Provider Wells Fargo Foothill, Inc. has a Lien on all of the
Company’s and its Subsidiaries’ copyrights. 
All Liens granted in connection with this agreement shall be discharged
at Closing.


 


3. 
Pursuant to the Amended and Restated Patent Security Agreement dated July 15,
2008 by and among Quovadx Holdings, Inc., Healthvision Solutions, Inc.,
Healthvision, Inc., HV Solutions Canada Inc., Advica Health Resources, Inc.,
Confer Software, Inc. and Quovadx International, Inc. and Wells Fargo
Foothill, Inc., in its capacity as Agent for the Lender Group and the Bank
Product Provider Wells Fargo Foothill, Inc. has a Lien on all of the
Company’s and its Subsidiaries’ patents. 
All Liens granted in connection with this agreement shall be discharged
at Closing.


 


(b)(ii)


 


1.  The
Master Distribution Agreement dated June 13, 2008, between in4tek, Ltd.
and Medisolution Ltd. requires in4tek, Ltd.’s consent in connection with a
change of control of HV Solutions Canada Inc.


 


2.  The
Value Added Reseller Product License Agreement dated January 1, 2009,
between Healthwise, Incorporated and Healthvision, Inc. requires
Healthwise, Incorporated’s consent in connection with a transfer of a
controlling interest of Healthvision, Inc.


 


3. 
Pursuant to the Distributor Agreement effective as of April 1, 2007,
as amended, between Technidata S.A.S and Medisolution Ltd., Technidata S.A.S.
may terminate the Distributor Agreement if a material change occurs in the
control of HV Solutions Canada Inc.


 


4.  The
Company has inbound licenses with certain ongoing payment obligations with the
following licensors:


 


(a)                                  First DataBank


 


(b)                                 in4tek


 


(c)                                  InfoPanama


 


(d)                                 Initiate


 


(e)                                  Oracle


 

















 


(f)                                    Sybase


 


(g)                                 Sun
Microsystems


 


(h)                                 Technidata


 


(i)                                     Blaussen


 


(j)                                     Healthwise


 


(i)                                     Medseek


 


(j)                                     Private Health
News


 


(k)                                  Scout News


 


(l)                                     WebTrends


 


(m)                               Verisign


 


(o)                                 Birdstep


 


(p)                                 Boston Software


 


(q)                                 Cerner Multum


 


(r)                                    Data Direct


 


(s)                                  3M


 


(t)                                    Edifecs


 


(u)                                 IMO


 


(v)                                 MapQuest


 


(w)                               WebMD


 


(x)                                   Intelligent
Medical Objects


 


(h)                                 See Attached Section 2.15(h)


 


(i)                                     1.  Pursuant to the Non-Disclosure and
Acknowledgement dated November 16, 2009 between Healthvision Solutions, Inc.
and Black Duck Software, Inc., the Company provided its source code to the
Company’s Product to Black Duck at the request of Parent.


 


2.  
Source Code Escrow Agreements between Initiate Systems, Inc.,
Brambles NSD, Inc. as escrow agent and the following customers:


 

















 


3. 
Source Code Escrow Agreement dated June 11, 2008 between Initiate
Systems, Inc., HCA — Information Technology and Services, Inc. and
NCC Group, Inc.


 


4.  The
Company has contractual obligations to cause Initiate Systems, Inc. to
enter into an escrow agreement for the deposit of Initiate Systems, Inc.’s
source code pursuant to the agreements with each of the beneficiaries listed
under Section 2.15(b)(ii)(i)(2) and 2.15(b)(ii)(i)(3).


 


5. 
Master Escrow Agreements dated September 9, 1996  between Healthcare Communications, Inc.
and Fort Knox Escrow Services, Inc. and each of the following
beneficiaries:


 


6. 
Three-Party Escrow Service Agreement dated July 10, 2007 between
Healthvision, Inc., Sandlot LLC and Iron Mountain Intellectual Property
Management, Inc.


 


7. 
Three-Party Escrow Service Agreement dated November 7, 2002 between
Quovadx, Inc., and DSI Technology Escrow Services, Inc. for the
benefit of Northwestern Medical Faculty Foundation, Inc.


 


8. 
Multi Licensee Distributor Escrow Agreement dated June 12, 2003
between Quovadx, Inc., Trace Financial Limited and NCC Escrow
International Limited.


 


9. 
Intellectual Property Escrow Deposit Agreement #36216 dated May 15,
2003 between Quovadx, Inc., Recall Total Information Management, Inc.
(now known as NCC Group) and each of the following beneficiaries:


 

















 


10. 
The Company has contractual obligations to deposit the source code of
the Company’s Product in escrow pursuant to and subject to the terms and
conditions of agreements with each of the beneficiaries disclosed under Disclosure
Items (5-9) of this Section 2.15(b)(ii)(i).


 


11. 
The Subsidiaries of the Company are obligated to deposit or provide the
source code of its Products in escrow for the benefit of the following
beneficiaries pursuant to and subject to the terms and conditions of customer
agreements between the Subsidiaries and each of the beneficiaries:


 

















 


2.15                        Intellectual
Property.


 


(j)


 


	
  Component

  	
   

  	
  Module

  	
   

  	
  Description

  (Highway)

  	
   

  	
  3rd Party Software License

  Type

  	
   

  	
  Packaged

  /

  Delivered

  ?

  	
   

  	
  Used?

  
	
  Archive-Tar

  	
   

  	
  Cloverleaf

  	
   

  	
  Used to package
  IHE

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  Data::ShowTable

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  GPL 2.0

  	
   

  	
  No

  	
   

  	
  No

  
	
  Display Tag
  Library

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  Perl Artistic
  License

  	
   

  	
  No

  	
   

  	
  No

  
	
  GDBM

  	
   

  	
  Cloverleaf

  	
   

  	
  Cloverleaf Tcl
  extension as db operation

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  GNU Tar

  	
   

  	
  Cloverleaf

  	
   

  	
  Archive tool,
  used for build

  	
   

  	
  GPL 3.0

  	
   

  	
  Yes

  	
   

  	
  Yes

  
	
  Less

  	
   

  	
  Cloverleaf

  	
   

  	
  Code can be removed

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  MakeLogic Tail

  	
   

  	
  Cloverleaf

  	
   

  	
  CSC log viewer
  for windows platform

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  Used in 4.3;
  already removed from 4.4

  
	
  MyODBC

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  GPL+

  	
   

  	
  No

  	
   

  	
  No

  
	
  Net-tools

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  Yes

  
	
  Netscape
  Messaging Access SDK

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  Netscape license
  1.1

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  PJA Toolkit

  	
   

  	
  Cloverleaf

  	
   

  	
  Alternative AWT
  toolkit, primarily for hostservers with no display

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  Snack Sound
  Toolkit

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  Term

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  can be removed

  	
   

  	
  GPL 1.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  SharpZipLib

  	
   

  	
  Medi Suite

  	
   

  	
  Code Project

  	
   

  	
  GPL with
  exceptions

  	
   

  	
  Yes

  	
   

  	
  Yes

  
	
  Code Project — A
  Simple Date Selector

  	
   

  	
  HIE

  	
   

  	
  This control is
  used in selecting a 

  	
   

  	
  “No explicit license. For further information see:

  	
   

  	
  No

  	
   

  	
  Yes

  



 

















 


	
  User Control in
  ASP.NET (JavaScript based)

  	
   

  	
   

  	
   

  	
  date range while
  requesting a report.

  	
   

  	
  http://www.codeproject.com/KB/user-controls/ASPNET_DateSelector.aspx”

  	
   

  	
   

  	
   

  	
   

  
	
  UFC-crypt

  	
   

  	
  Cloverleaf

  	
   

  	
  Legacy code -
  dead code in CL 5.7/5.7MB.

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  WinCvs

  	
   

  	
  Cloverleaf

  	
   

  	
  Removed since
  Cloverleaf 5.6

  	
   

  	
  GPL 2.0

  	
   

  	
  Yes

  	
   

  	
  No

  



 

















 


2.16                        Insurance
Coverage.


 


	
  INSURANCE POLICY TYPE

  	
   

  	
  CARRIER

  	
   

  	
  POLICY NUMBER

  
	
  Property

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  General Liability & Employee Benefits Liability

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  Auto Liability

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  Workers Compensation & Employers Liability

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  Global Extension

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  Umbrella Liability

  	
   

  	
  Travelers

  	
   

  	
   

  
	
  Executive Liability

  	
   

  	
  The Hartford

  	
   

  	
   

  
	
  Errors & Omissions

  	
   

  	
  CNA

  	
   

  	
   

  
	
  UK EL

  	
   

  	
  Zurich

  	
   

  	
   

  
	
  China Package

  	
   

  	
  Travelers

  	
   

  	
   

  



 

















 


2.17                        Compliance
with Legal Requirements.


 


Health Canada Medical Device Establishment
License issued to HV Solutions Canada Inc.


 
















 


2.18                        Employee
Benefit Plans.


 


                                                1.  Healthvision Solutions, Inc. 401(k) Plan


 


                                                2.  The following Company Employee Plans:


 


	
  COVERAGE

  	
   

  	
  CARRIER

  
	
  Medical PPO

  	
   

  	
  Blue Cross Blue Shield of Texas

  
	
  Medical PPO (HAS compatible)

  	
   

  	
  Blue Cross Blue Shield of Texas

  
	
  Dental PPO

  	
   

  	
  Blue Cross Blue Shield of Texas

  
	
  Short Term Disability

  	
   

  	
  Hartford

  
	
  Long Term Disability

  	
   

  	
  Hartford

  
	
  Supplemental Life/ADD

  	
   

  	
  Hartford

  
	
  Voluntary Life

  	
   

  	
  Hartford

  
	
  Vision

  	
   

  	
  EyeMed

  
	
  Flexible Spending Account (Health Care, Dependent Care)

  	
   

  	
  PayFlex

  
	
  COBRA Outsourcing

  	
   

  	
  PayFlex

  
	
  Voluntary prepaid legal

  	
   

  	
  Prepaid Legal

  



 


3.  Termination Policies.


 


(a)  Canadian Employee
Severance Policy (as listed in Canada Employees Handbook). If the employee’s
employment is terminated not for cause, the Company shall either give the
employee notice of termination or pay in lieu and, if required under applicable
statute, shall also pay the employee severance pay. Payments will be paid out
on a pro-rated calculation based on length of service with the Company. From
date of hire to one year of service, employees will receive two weeks of notice
or pay in lieu. After the first year of service, employees will receive an
additional one week of notice or pay in lieu for each year of service and, if
required by applicable statute, also statutory severance pay. The payout will
be prorated based on date of hire. In no event will an employee receive less
than their minimum statutory entitlement.


 


(b)  United States
Employee Severance Policy (as listed in U.S. Employee Handbook).  If the Employee’s employment is terminated
not for cause, the Company shall pay the Employee severance pay. Severance will
be paid out on a pro-rated calculation based on length of service with the
Company. From date of hire to one year of service employees will receive two
weeks of severance pay. After the first year of service, employees will receive
an additional one week of severance pay for each year of service. The payout
will be prorated based on date of hire. Severance payouts are at CEO’s
discretion.


 


4.  Employee Agreements


 


(a)                                  Employment
Offer Letter dated June 4, 2007, to Russell Fleischer from the Company.


 


(b)                                 Employment
Offer Letter dated August 1, 2008, to Marc Rubenstein from Healthvision, Inc.


 

















 


(c)                                  Employment
Offer Letter dated August 6, 2008, to Luc Gagnon from HV Solutions Canada
Inc.


 


5.  Quovadx Holdings, Inc. 2008 Equity
Incentive Plan


 


6.  Employees currently on continuation coverage
under COBRA


 


(a)


 


(b)


 


(c)


 


(d)


 


(e)


 


(f)


 


(g)


 


(h)


 

















 


2.19                        Employees.


 


U.S. Employees on Leave:


 


1.


 


Canadian employees on leave:


 


1.


 


2.


 


3.


 

















 


2.21                        Interested
Party Transactions.


 


1.  Agency Agreement dated January 1, 2009,
relating to transfer pricing by and between Healthvision Solutions, Inc.
and HV Solutions, Shanghai.


 


2.  Intercompany Agreement dated August 28,
2008, by and between Healthvision Solutions, Inc. and HV Solutions Canada
Inc.


 


3.  The Stockholder Agreement entered into to as
of August 23, 2007, by and among the Company, individual managers listed
on Schedule A thereto and the investors listed on Schedule B.


 


4.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and Russell Fleischer.


 


5.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and Paul Bellamy.


 


6.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and Lauren Hill.


 


7.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and May Hu.


 


8.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and Mike Epplen.


 


9.  Stock Purchase Agreement entered into as of August 23,
2007, between the Company and Carolyn Jolley.


 


10. Stock Purchase Agreement
entered into as of August 23, 2007, between the Company and Jeffrey
Tognoni.


 


11.  Stock Purchase Agreement entered into as of October 23,
2007, between the Company and Jim Elder.


 


12.  Employment Offer Letter dated June 4,
2007, to Russell Fleischer from the Company.


 


13.  Employment Offer Letter dated August 1,
2008, to Marc Rubenstein from Healthvision, Inc.


 


14.  Employment Offer Letter dated August 6,
2008, to Luc Gagnon from HV Solutions Canada Inc..


 


15.  Stock Purchase Agreement dated August 28,
2008 by and among Quovadx Holdings, Inc., Battery Ventures VII, L.P., and
Battery Investment Partners VII, L.P.


 


16.  Indemnification Agreement entered into as of January 29,
2009, between the Company and Russell Fleischer.


 


17.  Indemnification Agreement entered into as of January 29,
2009, between the Company and David Tabors.


 

















 


18.  Indemnification Agreement entered into as of January 29,
2009, between the Company and Jesse Feldman.


 


19.  Indemnification Agreement entered into as of January 29,
2009, between the Company and Jeffrey Tognoni.


 


20.  Management Rights Letter entered into as of January 29,
2009, between the Company and Battery Ventures VII, L.P.


 


21.  Management Rights Letter entered into as of January 29,
2009, between the Company and Battery Investment Partners VII, LLC.


 


22.  Agency Agreement relating to Transfer Pricing
by the Agent on behalf of HV Solutions, Canada, Inc. dated January 1,
2009 between HV Solutions Canada, Inc. and HV Solutions, Shanghai.


 

















 


2.22                        Environmental
Matters.


 


None.


 

















 


2.23                        Finders’
Fees.


 


Pursuant to that certain
Engagement Letter dated April 3, 2009 by and between Healthvision, Inc.
and William Blair & Company, L.L.C. (“William
Blair”), upon the completion of the Transactions, the Company is
obligated to pay William Blair a fee based on the Total Consideration (as
defined in the Engagement Letter) of the Transactions.


 

















 


2.24                        Software
Warranty.


 


See Attachment 2.24
for copies of standard terms and conditions of sale, license, lease or service
of Company Software.


 
















 


2.25                        Customers
and Suppliers.


 


Fiscal Year 2008


 


	
  Number

  	
   

  	
  Healthvision Top Customers

  	
   

  	
  % of FY Revenue

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
   

  	
   

  	
  4.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
   

  	
   

  	
  4.3

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
   

  	
   

  	
  3.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
   

  	
   

  	
  2.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
   

  	
   

  	
  2.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
   

  	
  2.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
   

  	
   

  	
  1.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
   

  	
   

  	
  1.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
   

  	
   

  	
  1.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
   

  	
   

  	
  1.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11

  	
   

  	
   

  	
   

  	
  1.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12

  	
   

  	
   

  	
   

  	
  1.2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13

  	
   

  	
   

  	
   

  	
  1.2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14

  	
   

  	
   

  	
   

  	
  1.2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
   

  	
   

  	
  1.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  25

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  26

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  28

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  29

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  



 

















 


	
  32

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  33

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  34

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  37

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  38

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  40

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  41

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  42

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  43

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  45

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  46

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  47

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  48

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  49

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  50

  	
   

  	
   

  	
   

  	
  0.4

  	
  %

  



 

















 


2.25                        Customers
and Suppliers (continued).


 


Q3 2009 Year to Date


 


	
  Number

  	
   

  	
  Healthvision Top Customers

  	
   

  	
  % of FY Revenue

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
   

  	
   

  	
  5.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
   

  	
   

  	
  5.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
   

  	
   

  	
  4.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
   

  	
   

  	
  1.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
   

  	
   

  	
  1.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
   

  	
  1.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
   

  	
   

  	
  1.4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
   

  	
   

  	
  1.3

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
   

  	
   

  	
  1.2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
   

  	
   

  	
  1.2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11

  	
   

  	
   

  	
   

  	
  1.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12

  	
   

  	
   

  	
   

  	
  1.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13

  	
   

  	
   

  	
   

  	
  1.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14

  	
   

  	
   

  	
   

  	
  1.1

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16

  	
   

  	
   

  	
   

  	
  1.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20

  	
   

  	
   

  	
   

  	
  0.9

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  25

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  26

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  28

  	
   

  	
   

  	
   

  	
  0.8

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  29

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  32

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  



 

















 


	
  33

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  34

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35

  	
   

  	
   

  	
   

  	
  0.7

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  37

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  38

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  40

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  41

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  42

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  43

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44

  	
   

  	
   

  	
   

  	
  0.6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  45

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  46

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  47

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  48

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  49

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  50

  	
   

  	
   

  	
   

  	
  0.5

  	
  %

  



 


Technidata S.A.S. has provided written notice
to HV Solutions Canada Inc. dated December 28, 2009 that it intends not to
renew the Distributor Agreement effective as of April 1, 2007, between
Technidata S.A.S. and Medisolution Ltd., as amended (as assigned to HV
Solutions Canada Inc.).


 

















 


2.26                        Power
of Attorney.


 


1. 
Amended and Restated Credit Agreement dated July 15, 2008 by and
among the Company, each of the Subsidiaries, the Lender’s thereto, Wells Fargo
Foothill, Inc., Wells Fargo Foothill Canada ULC and Churchill Financial
LLC and the ancillary documents contemplated thereby, including but not limited
to:


 


(a) Collateral
Assignment of Rights dated October 2, 2007 by and among Quovadx, Inc.,
HV Merger Sub, Inc., and Wells Fargo Foothill, Inc.; and


 


(b) Amended and
Restated Security Agreement dated July 15, 2008 by and among the Company,
the Subsidiaries and Wells Fargo Foothill, Inc., as amended and
supplemented from time to time.


 

















 


2.29                        Notes
and Accounts Receivable.


 


None.


 

















 


2.30                        Title
to Shares.


 


	
  Stockholder

  	
   

  	
  Preferred Shares

  	
   

  	
  Common Shares

  	
   

  	
  Total Shares

  	
   

  
	
  Battery Ventures VII, L.P.

  	
   

  	
  2,239,098.40

  	
   

  	
  17,661,600

  	
   

  	
  19,990,698.40

  	
   

  
	
  Battery Investment
  Partners VII, LLC

  	
   

  	
  42,901.60

  	
   

  	
  338,400

  	
   

  	
  381,301.60

  	
   

  



 


The Stockholder Agreement
entered into to as of August 23, 2007, by and among the Company,
individual managers listed on Schedule A thereto and the investors listed on
Schedule B thereto contains certain rights of first refusal, “co-sale” rights, “drag-along”
rights and voting rights, as more particularly described therein.


 

















 


2.31                        Required
Consents.


 


1.  The
Master Distribution Agreement dated June 13, 2008, between in4tek, LTD.
and Medisolution Ltd. requires in4tek, LTD’s consent in connection with a
change of control of HV Solutions Canada Inc.


 


2.  The
Value Added Reseller Product License Agreement dated January 1, 2009,
between Healthwise, Incorporated and Healthvision, Inc. requires
Healthwise, Incorporated’s consent in connection with a transfer of a
controlling interest of Healthvision, Inc.


 


3. 
Release Letter dated January 7, 2010 from William Blair to Quovadx
Holdings, Inc. (the “Blair Release”)
granting a limited release of obligations conditioned upon certain payments to
be made to William Blair in connection with the Closing pursuant to the terms
set forth in that certain Engagement Letter dated April 3, 2009 by and
between Healthvision, Inc. and William Blair.


 

















 


4.2                   Operation
of Business of Company Prior to Closing.


 


(b) and (h)


 


The Company may elect to purchase a run off
(i.e., “tail”) policy or endorsement with respect to the current policy of
directors’ and officers’ liability insurance covering claims asserted after the
Closing arising form facts or events that occurred at or before the Closing
(including consummation of the Transactions). 
In the event that the Company purchases said policy, the fees and
expenses related to same shall reduce Closing Cash under the Agreement.