exv4w4






Exhibit 4.4




EXECUTION VERSION




EXCHANGE AGREEMENT




by and between




CBAYSYSTEMS HOLDINGS LIMITED




and




The
Investors
Signatories hereto




As of September 30, 2010










 



 


TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS 
	 	 	1	 
	ARTICLE II EXCHANGE 
	 	 	5	 
	2.1. Exchange 
	 	 	5	 
	2.2. MEDQ Net Debt 
	 	 	5	 
	2.3. Effective Date 
	 	 	5	 
	2.4. Acknowledgment 
	 	 	5	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF CBAY 
	 	 	5	 
	3.1. Corporate Organization 
	 	 	5	 
	3.2. Capital Stock 
	 	 	5	 
	3.3. Corporate Authority; Non-contravention 
	 	 	6	 
	3.4. Financial Statements 
	 	 	7	 
	3.5. London Stock Exchange Reports 
	 	 	7	 
	3.6. Absence of Certain Changes and Events 
	 	 	8	 
	3.7. Offering Valid 
	 	 	8	 
	3.8. Litigation 
	 	 	8	 
	3.9. Investment Company Act 
	 	 	8	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE INVESTORS 
	 	 	8	 
	4.1. Ownership of MEDQ Shares; Authority 
	 	 	8	 
	4.2. Investment Representations 
	 	 	8	 
	ARTICLE V COVENANTS OF CBAY 
	 	 	10	 
	5.1. Further Assurances 
	 	 	10	 
	5.2. Transact Business in the Ordinary Course 
	 	 	10	 
	5.3. Issuance of CBAY Shares 
	 	 	10	 
	5.4. Information to Investors 
	 	 	10	 
	5.5. Voting Agreement 
	 	 	10	 
	ARTICLE VI COVENANTS OF THE INVESTORS 
	 	 	10	 
	6.1. Further Assurances 
	 	 	10	 
	6.2. Confidentiality 
	 	 	11	 
	ARTICLE VII CONDITIONS PRECEDENT 
	 	 	11	 
	7.1. Conditions to Obligations of the Investors 
	 	 	11	 
	7.2. Conditions to Obligations of CBAY 
	 	 	12	 
	ARTICLE VIII GENERAL PROVISIONS 
	 	 	12	 
	8.1. Notices 
	 	 	12	 
	8.2. Partial Invalidity 
	 	 	13	 
	8.3. Execution in Counterparts 
	 	 	13	 
	8.4. Governing Law 
	 	 	13	 
	8.5. Assignment; Successors and Assigns 
	 	 	13	 
	8.6. Titles and Headings 
	 	 	14	 
	8.7. Schedules and Exhibits 
	 	 	14	 












 



 


	 	 	 	 	 
	 	 	Page	 
	8.8. Knowledge
	 	 	14	 
	8.9. Entire Agreement; Amendments
	 	 	14	 
	8.10. Waivers
	 	 	14	 
	8.11. WAIVER OF JURY TRIAL
	 	 	14	 
	8.12. Third-Party Beneficiary
	 	 	15	 
	8.13. Expenses
	 	 	15	 
	8.14. Termination
	 	 	15	 
	8.15. Effect of Termination
	 	 	16	 
	8.16. Specific Performance
	 	 	16	 






Disclosure Schedules




Schedule 3.2: Capital Stock

Schedule 3.3.: Corporate Authority; Non-contravention

Schedule 3.4: Financial Statements

Schedule 3.5: Absence of Certain Changes and Events




Exhibits




Exhibit A: Form of By-Laws

Exhibit B: Form of Certificate of Incorporation

Exhibit C: Form of Stockholders Agreement

Exhibit D: Net Debt Adjustment to Exchange Ratio

Exhibit E: Form of Officer’s Certificate




ii










 



 


EXCHANGE AGREEMENT




     This
EXCHANGE AGREEMENT (the “Agreement”) is dated as of September 30, 2010, by and between
CBaySystems Holdings Limited, a British Virgin Islands company
(“CBAY”, including as such entity
shall be incorporated in Delaware as contemplated by the Agreement) and the Investors (as defined
below).



W
I T N E S S E T H




     WHEREAS, CBAY indirectly owns approximately 69.5% of the outstanding shares of MedQuist, Inc.
(“MEDQ”);



     WHEREAS, CBAY wishes to acquire all of the outstanding shares of MEDQ to the extent that
holders of such shares are prepared to sell or transfer such shares on terms and conditions
satisfactory to CBAY; and



     WHEREAS, the Investors wish to exchange (the “Exchange”) their shares of common stock, no
par value, of MEDQ (“MEDQ Shares”) for shares of Common Stock of CBAY (“CBAY Shares”).



     NOW, THEREFORE, in consideration of the mutual terms, conditions and other covenants and
agreements set forth herein, the parties hereto hereby agree as follows:



ARTICLE I

DEFINITIONS




     (a) In addition to the other words and terms defined elsewhere in the Agreement, as
used in the Agreement, the following words and terms have the meanings specified or referred
to below:



     “Accredited
Investor” means any Person that is an “accredited investor” under the Securities
Act (as defined hereinafter).



     “Action” means any claim, controversy, action, cause of action, suit, litigation,
arbitration, investigation, opposition, interference, audit, assessment, hearing, review,
complaint, demand or other legal proceeding (whether sounding in contract, tort or otherwise,
whether civil or criminal and whether brought at law or in equity) that has been served,
noticed, conducted, tried or heard by or before, or otherwise involving, any Governmental
Authority.



     “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under common control with,
that Person. For the purposes of this definition, the term “control” (including the terms
“controlling”, controlled by” and “under common control with”) means the possession, direct or
indirect, of the power to direct or cause the direction of management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.



     “Agreement” has the meaning specified in the preamble hereto.



     “Business
Day” means a day other than a Saturday, Sunday or any day on which the banks
located in the State of New York are authorized or obligated to close.









 



2


     “By-Laws” means the by-laws of CBAY substantially in the form attached hereto as Exhibit
A, with any changes the board of directors of CBAY shall deem necessary or appropriate in
connection with the Initial Public Offering.



     “CBAY” has the meaning specified in the preamble hereto.



     “CBAY
Shares” has the meaning specified in the recitals hereto.



     “Certificate
of Incorporation” means the certificate of incorporation of CBAY substantially in
the form attached hereto as Exhibit B, with any changes the board of directors of CBAY
shall deem necessary or appropriate in connection with the Initial Public Offering.



     “Closing” has the meaning specified in Section 2.2
hereto.



     “Code” has the meaning specified in Section
4.2 hereto.



     “Common
Stock” has the meaning specified in Section 3.2 hereto.



     “Contractual
Obligation” means, with respect to any Person, any contract, agreement, deed,
mortgage, lease, sublease, license, sublicense or other legally enforceable commitment, promise,
undertaking, obligation, arrangement, instrument or understanding to which or by which such
Person is a party or otherwise subject or bound or to which or by which any property, business,
operation or right of such Person is subject or bound.



     “Debt” means, as applied to any Person, at any particular time, without duplication, (a)
indebtedness of such Person for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (b) indebtedness of such Person evidenced by any note, bond,
debenture or other debt security, (c) indebtedness of such Person for the deferred purchase price
of property or services with respect to which such Person is liable, contingently or otherwise,
as obligor or otherwise (other than trade payables and other similar current liabilities incurred
in the ordinary course of business), (d) indebtedness guaranteed in any manner by such Person
(including guarantees in form of an agreement to repurchase or reimburse), (e) obligations under
capitalized leases with respect to which such Person is liable as obligor or guarantor and (f) in
the case of CBAY, amounts referred to in Section 3.1(h) of the Stockholders Agreement.



     “Effective
Date” has the meaning specified in Section 2.3 herein.



     “ERISA” has the meaning specified in Section 4.2 hereto.



     “Exchange” has the meaning set forth in the recitals hereto.



     “Exchange
Ratio” has the meaning specified in Section 2.1 hereto.



     “GAAP” means U.S. generally accepted accounting principles in effect from time to time.



     “Government
Order” means any order, writ, judgment, injunction, decree, treaty,
stipulation, ruling, decision, verdict, determination or award made, issued or entered by or
with any Governmental Authority.



     “Governmental
Authority” means any domestic, foreign, federal, state, provincial or
local authority, legislative body, court, government, regulatory agency, self-regulatory
organization (including










 



3



any securities exchange), commission, board, arbitral or other tribunal, or any
political or other subdivision, department or branch of any of the foregoing.




     “Initial Public Offering” means the initial public offering by CBAY of Common Stock
pursuant to an effective registration statement on Form S-1 under the Securities Act.



     “Investor” means each Investor signatory hereto (collectively, the “Investors”).



     “Investor Percentage” means the percentage of the aggregate outstanding MEDQ Shares held as
of the date hereof by each Investor, as shown on the signature pages hereto, as such percentage
may be adjusted to reflect any additional issuances, or any additional acquisitions by such
Investor, of MEDQ Shares after the date hereof and prior to the Effective Date.



     “Law” or “Laws” means all statutes, laws (including common law), regulations,
rules, ordinances, codes and other requirements of any Governmental Authority, including
any Orders.



     “Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment,
charge, encumbrance, easement, lien (statutory or other), or preference, priority or other
security interest or preferential arrangement in the nature of a lien, including any conditional
sale contract or other title retention agreement, any assignment of any right to receive income
or profits, the interest of a lessor under any capital lease and any synthetic or other financing
lease having substantially the same economic effect as any of the foregoing (but not the interest
of a lessor under an operating lease).



     “Material Adverse Effect” means any change, effect, event, fact, condition, circumstance,
occurrence, or development that, individually or in the aggregate is material and adverse to the
business, condition (financial or otherwise), properties, assets, or operations of CBAY and its
consolidated Subsidiaries, taken as a whole; provided, however, that none of the following shall
be taken into account in determining whether there is a Material Adverse Effect: (A) changes in
general economic, financial market or geopolitical conditions to the extent that such changes do
not have a materially disproportionate and adverse impact on CBAY and its consolidated
Subsidiaries, taken as a whole, relative to other companies in the medical transcription industry,
(B) changes affecting the industry in which CBAY and its consolidated Subsidiaries, taken as a
whole, operate (including, without limitation, changes in prices, costs of labor, general market
prices or regulatory changes in any such industry) to the extent that such changes do not have a
materially disproportionate and adverse impact on CBAY and its consolidated Subsidiaries, taken as
a whole, relative to other companies in the medical transcription industry, (C) the outbreak or
escalation of hostilities, the declaration of war, the occurrence of any calamity or natural
disaster, or acts of terrorism, (D) changes in any Law or GAAP or interpretation thereof after the
date hereof, (E) any event as to which the Investors have provided written consent, (F) the
announcement of the Exchange Agreement and the Exchange, (G) compliance by the Investors, CBAY and
the other parties hereto with the terms of the Exchange Agreement, the Exchange and each other
agreement or document to be executed, filed or delivered in connection herewith and therewith or
(H) any failure by CBAY and its consolidated Subsidiaries to meet any projections or estimates
(including internal projections or estimates) of revenues, earnings or performance for any period
(provided, however, that the underlying cause for such failure (unless the subject of any of the
foregoing sub-clauses (A) - (G)) may be considered in determining whether there has occurred a
Material Adverse Effect).



     “MEDQ” has the meaning set forth in the recitals hereto.



     “MEDQ Dividend” has the meaning set forth in Section 7.1(c) hereto.



     “MEDQ Shares” has the meaning set forth in the recitals hereto.










 



4




     “Net
Debt” means, as of any date of determination, the aggregate amount of Debt less the sum
of (without duplication) cash and cash equivalents and marketable securities recorded as current
assets (except for any Capital Stock in any Person).



     “Order” means any order, writ, judgment, injunction, decree, stipulation, determination,
decision, verdict, ruling, subpoena, or award entered by or with any Governmental Authority
(whether temporary, preliminary or permanent).



     “Permit” means, with respect to any Person, any license, franchise, permit, consent,
approval, right, privilege, certificate or other similar authorization issued by, or otherwise
granted by, any Governmental Authority to which or by which such Person is subject or bound or
to which or by which any property, business, operation or right of such Person is subject or
bound.



     “Person” means any individual, corporation, partnership, limited liability company, trust,
joint stock company, business trust, unincorporated association, joint venture, Governmental
Authority or other entity of any nature whatsoever.



     “Principal
Subsidiaries” means, collectively, CBay Inc., CBay Systems (India) Private
Limited and MEDQ.



     “Securities
Act” means the Securities Act of 1933, as amended from time to time, and the
rules and regulations promulgated thereunder, as the same may be amended from time to time.



     “Stockholders
Agreement” means the stockholders agreement between CBAY, S.A.C. PEI CB
Investment, L.P., S.A.C. PEI CB Investment II, LLC, International Equities (S.A.C. Asia)
Limited and the Investors, in the form attached hereto as Exhibit C, as amended from
time to time.



     “Subsidiary” means any corporation, partnership, joint venture or other legal entity of
which CBAY owns, directly or indirectly, more than 50% of the stock or other equity interests,
the holders of which generally are entitled to vote for the election of the board of directors
or other governing body of such corporation, partnership, joint venture or other legal entity.



     “Termination
Date” has the meaning set forth in Section 8.14(b)(ii).



     “Transaction
Documents” means, collectively, the Agreement and the Stockholders Agreement.



     “Voting
Agreement” means the voting agreement between CBAY, S.A.C. PEI CB
Investment, L.P., S.A.C. PEI CB Investment II, LLC and International Equities (S.A.C. Asia)
Limited.



     Unless the context of the Agreement otherwise requires, (i) words of any gender
include each other gender, (ii) words using the singular or plural number also include the
plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby” and
derivative or similar words refer to this entire Agreement, (iv) the terms “Article” or
“Section” refer to the specified Article or Section of the Agreement and (v) the words
“include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” All accounting terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP.










 



5




ARTICLE II

EXCHANGE




          2.1. Exchange. Subject to the terms and conditions hereof, on the Effective
Date each Investor agrees to deliver to CBAY, free and clear of all Liens, all MEDQ Shares held
by such Investor or by any of the Investor’s Affiliates, in each case which shall not be less
than the number of MEDQ Shares specified beside its name on its signature page hereto, together
with any other MEDQ Shares acquired by such Investor or its Affiliates after the date hereof and
up to and including the Effective Date, and CBAY agrees to issue to each Investor 4.2459 CBAY
Shares in exchange for each such MEDQ Share so delivered by such Investor (the “Exchange Ratio”),
subject to the adjustments to the Exchange Ratio set forth in this Article II. Such
Exchange Ratio will also be equitably adjusted to reflect any stock dividend, stock split
(including a reverse share split), recapitalization or similar change in capital structure which
CBAY effects prior to or concurrently with the Exchange. In the case of any issuances of CBAY
Shares after the date hereof and prior to the Effective Date pursuant to the first agreement
listed on Schedule 3.2, the Exchange Ratio shall be increased as appropriate to give
effect to any such issuances such that such issuances shall not dilute the percentage of
aggregate outstanding CBAY Shares to be issued to the Investors upon the Closing.




          2.2. MEDQ Net Debt. If on the date of the closing of the Exchange (the
“Closing”), the Net Debt of MEDQ and its consolidated Subsidiaries (the “MEDQ Net Debt”), as
reasonably determined by CBAY as of a date not earlier than the fifth Business Day prior to the
Closing, is less than $304 million, then for each Investor there will be an increase in the
Exchange Ratio in accordance with the formula shown on Exhibit D attached hereto.




          2.3. Effective Date. Subject to the terms and conditions hereof, the
consummation of the transactions provided for in this Article II shall take place five Business
Days following the day on which the last to be satisfied or waived of the conditions set forth in
Article VII, other than conditions that can only be satisfied at Closing, shall be satisfied or
waived (the “Effective Date”), or such other date as the parties may mutually agree; provided that
the Effective Date shall be no later than January 31, 2011, unless mutually agreed in writing by
the parties hereto. The Closing on the Effective Date shall take place at the offices of Simpson
Thacher & Bartlett LLP at 425 Lexington Avenue, New York, New York 10017 or at such other place as
the parties may mutually agree.




          2.4. Acknowledgment. The Investors acknowledge that (a) CBAY may seek to
acquire additional outstanding MEDQ Shares not currently owned by CBAY and not acquired pursuant
to the Exchange and (b) any such acquisitions may take place through privately negotiated, open
market or other transactions on terms that may differ from the terms herein.




ARTICLE
III

REPRESENTATIONS AND WARRANTIES OF CBAY





	 	 	CBAY represents and warrants, as of the date hereof, to each of the Investors as follows:





          3.1. Corporate Organization. Each of CBAY and the Principal Subsidiaries
(i) is a company duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization; (ii) is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which the conduct of its
business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect, and (iii) has all
requisite corporate power (or the equivalent if not a corporation) to carry on its businesses as
now conducted.











 



6




          3.2. Capital Stock.




     (a) As of the date hereof, CBAY is authorized to issue 1,000,000,000 ordinary shares
of, par value $0.10 per share, of which 158,209,220 shares are issued or outstanding (such
shares, collectively, the “Ordinary Shares”, and after the reincorporation of CBAY in Delaware,
the “Common Stock”).



     (b) Except as disclosed in Schedule 3.2 as of the date hereof, there are no
agreements, warrants, puts, calls, rights, options or other commitments of any character to which
CBAY is a party or by which it is bound which obligate CBAY to issue, deliver or sell any
additional shares of its capital stock or any securities or instruments convertible into or
exchangeable for any such additional shares of capital stock.



     (c) On the Effective Date, the Common Stock to be issued to the Investors on such date
will have been duly authorized and, when delivered by CBAY in accordance with the Agreement,
will be validly issued, fully paid and nonassessable, and will be free and clear of all
Liens.



     (d) On or prior to the Effective Date, the Certificate of Incorporation shall have been
duly approved by all necessary corporate action on behalf of CBAY, and on or before the
Effective Date will be filed with the Secretary of State of the State of Delaware and shall
have become effective.



          3.3. Corporate Authority; Non-contravention.




     (a) CBAY (i) has all requisite corporate power and authority to execute and deliver the
Agreement, to consummate the transactions contemplated hereby and to perform its obligations
hereunder and (ii) will have, as of the Effective Date, all requisite corporate power and
authority to execute and deliver the Transaction Documents to which it will become a party, to
consummate the transactions contemplated thereby and to perform its obligations thereunder. The
Agreement has been, and the other Transaction Documents to which it will become a party shall be,
as of the Effective Date, duly executed and delivered by CBAY and constitutes or shall
constitute, as applicable, the legal, valid and binding obligations of CBAY enforceable in
accordance with its or their terms, as applicable (except to the extent that enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to creditors’ rights generally or by general principles of equity and public policy).



     (b) Except as set forth in Schedule 3.3, neither the execution nor delivery by
CBAY of the Agreement or the other Transaction Documents to which it is a party, nor the
consummation by CBAY of any of the transactions contemplated hereby or thereby, nor performance
by CBAY of its obligations hereunder or thereunder will:




     (i) violate any provision of the organizational or constitutional documents of CBAY or any
of the Principal Subsidiaries;




     (ii) result in the acceleration of, or entitle any party to accelerate (whether immediately
or after the giving of notice or lapse of time or both), any material Debt obligation of CBAY or
any of the Principal Subsidiaries;




     (iii) conflict with or violate, or result with giving of notice or lapse of time or both in
any conflict with or violation of, or result in the creation or imposition of, any Lien upon
any of the properties of CBAY or any of the Subsidiaries pursuant to any provision of, any
material mortgage, lien, lease, agreement, indenture, license, instrument, Law, any material
Permit applicable to or otherwise affecting CBAY or the Principal Subsidiaries or any assets of
CBAY or the Principal Subsidiaries, or any material Contractual Obligation to which CBAY or any
of the Principal Subsidiaries is a party or by which CBAY or any of the Principal Subsidiaries
or any of their respective material properties or assets is bound;










 



7





     (iv) constitute an event permitting modification, amendment or termination of a
material mortgage, lien, lease, agreement, indenture, license, instrument, order,
arbitration award, judgment or decree to which any of CBAY or the Principal Subsidiaries
is a party or by which CBAY or any of the Principal Subsidiaries or any of their
respective properties is bound; or




     (v) require the approval, consent, authorization or act of, or the making by
CBAY or any of the Principal Subsidiaries, of any material declaration, filing or
registration with, or notice to, any Governmental Authority or other Person, that will
not, as of the Effective Date, be obtained or made, as applicable.



          3.4.
Financial Statements.



     (a) Financial
Statements. Attached hereto as Schedule 3.4 are
copies of each of the following:




     (i) the audited consolidated balance sheets of CBAY and the Subsidiaries as of
December 31, 2009, 2008 and 2007 (the “CBAY Audited Balance Sheet”), and the related
audited consolidated statements of income and cash flows of CBAY and the Subsidiaries for
the fiscal years ended December 31, 2009, 2008 and 2007 (the “CBAY Audited Income
Statement”), accompanied by any notes thereto and the report of CBAY’s independent
accountants with respect thereto; and




     (ii) the unaudited consolidated balance sheet of CBAY and the Subsidiaries as of June
30, 2010 (the “CBAY Most Recent Balance Sheet”), and the related unaudited consolidated
statement of income and cash flows of CBAY and the Subsidiaries for the six months then
ended (the “CBAY Most Recent Income Statement”).



     (b) Compliance
with GAAP, etc. The CBAY Audited Balance Sheet and the CBAY
Most Recent Balance Sheet (including any notes thereto) fairly present the consolidated
financial position of CBAY and the Subsidiaries as of the dates set forth therein, in each case
in accordance with GAAP. The CBAY Audited Income Statement and the CBAY Most Recent Income
Statement have been prepared in conformity with GAAP through all of the periods involved (except
as otherwise specifically indicated therein) and fairly present the consolidated results of
operations of CBAY and the Subsidiaries taken as a whole for the periods indicated.



     (c) Absence
of Undisclosed Liabilities. Except as disclosed on Schedule 3.4,
 neither CBAY nor any of the Subsidiaries has any liability or obligation required to
be reflected or reserved against in its balance sheet except (a) liabilities and obligations in
the respective amounts reflected or reserved against in the CBAY Most Recent Balance Sheet, (b)
liabilities and obligations incurred in the ordinary course of business since June 30, 2010 and
(c) any other liabilities and obligations that, together with those set forth in clauses (a) and
(b) individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.



          3.5. London Stock Exchange Reports. CBAY’s Annual Report & Accounts for the
fiscal year ended December 31, 2009 and all other reports filed by CBAY with the AIM (the
“AIM”) since December 31, 2009 and prior to the date hereof (collectively, the “Reports”), when
they were filed with the AIM, complied in all material respects with applicable AIM requirements
and, to the knowledge of CBAY, did not, when such Reports were so filed, contain any statement of
fact that was not true and accurate in all material respects, contain any statement of opinion,
intention or expectation that was not made fairly or reasonably held, and such Reports were not
made materially incorrect or misleading by the omission from the statement of any fact or matter,
except as otherwise disclosed to the public or AIM after the filing of any such Reports.











 



8




          3.6. Absence of Certain Changes and Events. Except as set forth on
Schedule 3.6, since June 30, 2010 there has not been a Material Adverse Effect.




          3.7. Offering Valid. Assuming the accuracy of the representations and
warranties of the Investors set forth in Article IV hereof and compliance by the Investors with
Section 6.1 of the Agreement, the offer and issuance of the CBAY Shares to the Investors will
be exempt from the registration requirements of the Securities Act and from state “blue sky”
laws and comparable AIM provisions.




          3.8. Litigation. Except as set forth in Schedule 3.8, there is no
Action pending, or to the knowledge of CBAY, threatened, against or relating to CBAY or any of the
Subsidiaries, which has had or is reasonably expected to have a Material Adverse Effect.




          3.9. Investment Company Act. CBAY is not, and after giving effect to the
Exchange will not be, an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.




ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE INVESTORS




     Each of the Investors hereby represents and warrants, severally and not jointly, to CBAY
(and only as to itself) as follows:



          4.1. Ownership of MEDQ Shares; Authority.




     (a) Such Investor (i) is the holder of the number of MEDQ Shares specified beside its
name on its signature page hereto, (ii) owns beneficially and of record and, when transferred on
the Effective Date, free and clear of all Liens, all of such MEDQ Shares and any additional MEDQ
shares acquired after the date hereof and prior to the Effective Date and (iii) has not
assigned or otherwise transferred to any other Person any claim or other interest in the MEDQ
Shares; and



     (b) Such Investor (i) has all requisite power and authority to execute and deliver the
Agreement, to consummate the transactions contemplated hereby and to perform its obligations
hereunder and (ii) will have, as of the Effective Date, all requisite power and authority to
execute and deliver the Transaction Documents to which it will become a party, to consummate the
transactions contemplated thereby and to perform its obligations thereunder. The Agreement has
been, and the other Transaction Documents to which it will become a party shall be, as of the
Effective Date, duly executed and delivered by such Investor and constitutes or shall
constitute, as applicable, the legal, valid and binding obligations of such Investor enforceable
in accordance with its or their terms, as applicable (except to the extent that enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors’ rights generally or by general principles of equity and public policy).



          4.2. Investment Representations 




     (a) The Investor is acquiring the CBAY Shares for its own account (or, if it is acquiring
such securities as a fiduciary or agent for one or more investor accounts, such Investor has the
full power and authority to make the representations, warranties and agreements herein on behalf
of each such account);



     (b) The Investor is not acquiring the CBAY Shares with a view to any distribution
of such securities within the meaning of the Securities Act;










 



9




     (c) The Investor is, or if such Investor is acquiring the CBAY Shares as a fiduciary or
agent for one or more accounts, each such account is an institutional “accredited investor” (as
such term is defined in Rule 501 under the Securities Act);



     (d) The Investor’s acquisition and holding of the CBAY Shares do not constitute or give rise
to a non-exempt prohibited transaction under Title I of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended
(the “Code”) or a violation of any applicable law or regulation that is similar to the
prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code;



     (e) The Investor is an Accredited Investor;



     (f) The Investor will not engage in hedging or short-selling or place simultaneous sell
and buy orders or engage in similar kinds of transactions that have the purpose or effect of
evading the applicable restrictions on resale;



     (g) The Investor has sufficient knowledge and experience in financial and business matters
so as to be capable of independently evaluating the merits and risks of an investment in the
CBAY Shares, and such Investor is able to bear the economic risk of the investment. Such
Investor has had access to such information as it has deemed necessary or appropriate in
connection with its acquisition of the CBAY Shares and has made its own investment decision
regarding such securities based on its own knowledge and experience in such matters;



     (h) The Investor understands and agrees that the CBAY Shares or any beneficial interest
therein may not be reoffered, resold, pledged or otherwise transferred except (1) (A) to CBAY,
(B) to an investor who it reasonably believes is a “qualified institutional buyer” in a
transaction exempt from registration under Rule 144A under the Securities Act, (C) to a non-U.S.
investor in an offshore transaction complying with Regulation S under the Securities Act, or (D)
pursuant to an exemption from registration under the Securities Act (if available) and, in each
case, (2) in accordance with all applicable securities laws of the states of the United States;



     (i) The Investor understands that CBAY Shares will bear a legend substantially to the
following effect:




“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT
AMONG CBAYSYSTEMS HOLDINGS LIMITED, S.A.C. PEI CB INVESTMENT, L.P. AND THE OTHER STOCKHOLDERS
PARTY THERETO, DATED AS OF
[             ], AS AMENDED AND SUPPLEMENTED FROM TIME
TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF CBAYSYSTEMS HOLDINGS LIMITED. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS,
CERTAIN PROVISIONS RELATING TO THE VOTING AND TRANSFER OF THE SHARES SUBJECT TO THE
AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS
OF SUCH STOCKHOLDERS AGREEMENT.”




“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACTS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER SUCH ACTS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.”










 





10




     (j) The Investor has had the opportunity to ask questions of, and receive answers from
CBAY concerning CBAY, its business and financial condition, the Exchange and the securities to be
acquired by such Investor and other related matters, and CBAY has made available to such Investor
or its agents all documents and information requested by such Investor or on its behalf relating
to an investment in the CBAY Shares. In evaluating the suitability of an investment in the CBAY
Shares, such Investor has not relied and will not rely on any other representations or other
information (whether oral or written) made by or on behalf of CBAY (or any of its agents) other
than expressly contained in the Agreement; and



     (k) The Investor understands that CBAY and others will rely upon the truth and accuracy
of the foregoing acknowledgments, representations and agreements.



ARTICLE V

COVENANTS OF CBAY




          5.1. Further Assurances. CBAY agrees to use its commercially reasonable
efforts to take any and all appropriate actions required in order to consummate the transactions
contemplated by the Agreement and the other Transaction Documents to which it is a party.




          5.2. Transact Business in the Ordinary Course. From the date hereof until
the Effective Date, CBAY shall, and shall cause each of its Subsidiaries to, operate its business
in all material respects in the ordinary course of business consistent with past practices.




          5.3. Issuance of CBAY Shares. From the date hereof until the Effective Date,
CBAY shall not issue any CBAY Shares or issue any options, warrants or other securities
exercisable or convertible for CBAY Shares other than (i) all CBAY Shares issued in connection
with the Initial Public Offering, (ii) CBAY Shares issued pursuant to outstanding options and
agreements disclosed on Schedule 3.2, (iii) options issued under management or
employee option plans in connection with the Initial Public Offering, including, without
limitation, options to purchase CBAY Shares issued in exchange for outstanding options to
purchase MEDQ Shares and (iv) CBAY Shares issuable pursuant to any agreements, other than this
Agreement, pursuant to which CBAY may acquire MEDQ Shares from any Person other than the
Investors.




          5.4. Information to Investors. From and after the date hereof and until the
earlier to occur of the Closing or the termination of this Agreement, CBAY shall promptly provide
to each Investor all information which CBAY (a) provides to its shareholders or (b) provides to
AIM which is made public by AIM, and CBAY shall notify each Investor of any event or occurrence
with respect to CBAY or any of the Subsidiaries which, in CBAY’s reasonable discretion, is
reasonably likely to materially impair the ability of CBAY to consummate the Exchange or perform
CBAY’s obligations hereunder.




          5.5. Voting Agreement. From and after the date hereof and until the earlier
to occur of the Closing or the termination of this Agreement, CBAY shall not amend the Voting
Agreement without the consent of a majority of the Investors (based on their respective Investor
Percentages).




ARTICLE VI

COVENANTS OF THE INVESTORS




          6.1. Further Assurances. Each of the Investors agrees to use
commercially reasonable efforts to (i) take any and all appropriate actions required in order to
consummate the transactions











 



11



contemplated by the Agreement and the other Transaction Documents to which it is a party
and (ii) cooperate, at CBAY’s expense, with CBAY in connection with discussions or offers, which
CBAY may have with or make to other holders of MEDQ Shares to exchange such MEDQ Shares for CBAY
Shares.




          6.2. Confidentiality. Each Investor agrees to comply with the terms
of the confidentiality agreements previously entered into by such Investor with respect to the
Exchange or any related transaction with CBAY until the earlier of the Closing or the
termination of this Agreement in accordance with the terms hereof.




ARTICLE VII

CONDITIONS PRECEDENT




          7.1. Conditions to Obligations of the Investors. Each Investor’s
obligation to consummate the Exchanges on the Effective Date is subject to the satisfaction
or express waiver by it prior to the Effective Date of the following conditions:




     (a) Representations and Warranties. The representations and warranties made by CBAY
and the Subsidiaries in Article III of the Agreement shall be true and correct in all
material respects on or as of the Effective Date as if made on and as of the Effective Date,
except for those representations and warranties which apply as of a particular date, which shall
be true and correct in all material respects as of such date.



     (b) Performance; No Default under Other Agreements. CBAY and the Subsidiaries
shall have performed and complied in all material respects with all agreements and
covenants contained herein, as the case may be, required to be performed or complied with by
them prior to or on the Effective Date (or such compliance shall have been waived on terms and
conditions reasonably satisfactory to each of the Investors).



     (c) Declaration of Special Dividend. On or prior to October 7, 2010, the board of
directors of MEDQ shall have declared a special dividend to holders of MEDQ Shares in
an amount of not less than $4.70 per MEDQ Share (the “MEDQ Dividend”).



     (d) Shareholder Approvals. CBAY shall have obtained all required shareholder
approvals (collectively, the “Company Shareholder Approval”) in connection with the
transactions contemplated herein.



     (e) Reincorporation of CBAY. CBAY shall have been reincorporated in
Delaware.



     (f) Adoption of Certificate of Incorporation and By-Laws. CBAY shall
have adopted the Certificate of Incorporation and the By-Laws.



     (g) Initial Public Offering.On or prior to January 31, 2011, CBAY shall have
issued and sold CBay Shares in connection with the Initial Public Offering.



     (h) Listing of CBAY on NASDAQ. The CBAY Shares shall have been listed on the
NASDAQ Global Market.



     (i) Stockholders Agreement. CBAY shall have entered into the Stockholders
Agreement.











 





12




     (j) CBAY Net Debt. The Net Debt of CBAY and its consolidated
Subsidiaries other than MedQuist and its Subsidiaries (the “CBAY Net Debt”) shall
not exceed $6 million, reasonably determined by CBAY as of a date not earlier than the
fifth Business Day prior to the Closing.



     (k) MEDQ Net Debt. The MEDQ Net Debt shall not exceed $304 million,
reasonably determined by CBAY as of a date not earlier than the fifth Business
Day prior to the Closing.



     (l) Officer’s Certificate.CBAY shall have provided an officer’s certificate
in the form of Exhibit E,dated as of the Closing Date, (i) as to the satisfaction by
CBAY of the conditions precedent set forth in Section 7.1(a) and Section 7.1(b) of this
Agreement and (ii) attaching the calculations pursuant to Section 2.2, if applicable.



          7.2. Conditions to Obligations of CBAY. The obligation of CBAY to
consummate the Exchanges on the Effective Date is subject to the satisfaction or express waiver
by it prior to the Effective Date of the following conditions:




     (a) Representations and Warranties. Each of the representations and warranties of
the Investors in Article IV of the Agreement shall be true and correct in all material
respects on or as of the Effective Date as if made on and as of the Effective Date (except for
those representations and warranties in Section 4.1(a), which shall be true and correct in all
respects), except for those representations and warranties which apply as of a particular date,
which shall be true and correct in all material respects as of such date.



     (b) Performance: No Default under Other Agreement. Each of the Investors shall
have performed and complied in all material respects with all agreements and covenants
contained herein, required to be performed or complied with by them prior to or on the Effective
Date (or such compliance shall have been waived on terms and conditions reasonably satisfactory
to CBAY).



     (c) Shareholder Approvals. CBAY shall have obtained the Company Shareholder
Approval in connection with the transactions contemplated herein.



     (d) Stockholders Agreement. Each of the Investors shall have entered into the
Stockholders Agreement.



     (e) Officer’s Certificate. Each Investor shall have provided an officer’s
certificate in the form of Exhibit E, dated as of the Closing Date, as to the
satisfaction by such Investor of the conditions precedent set forth in Section 7.2(a) and
Section 7.2(b) of this Agreement.




ARTICLE VIII

GENERAL PROVISIONS







          8.1. Notices. All notices and other communications given or made
pursuant to the Agreement shall be in writing and shall be deemed to have been duly given or
made (a) five Business Days after being sent by registered or certified mail, return receipt
requested, (b) upon delivery, if hand delivered, (c) one Business Day after being sent by
prepaid overnight carrier with guaranteed delivery, with a record of receipt, or (d) upon
transmission with confirmed delivery if sent by cable, telegram, facsimile or telecopy (with a
copy simultaneously sent by registered or certified mail, return receipt requested), to the
parties at the following addresses or address set forth on the relevant signature page hereto,
as applicable (or at such other addresses as shall be specified by the parties by like notice):











 



13




          If to CBAY:



CBaySystems Holdings Limited

2661 Riva Road, Building 800

Annapolis, MD 21401

Fax: 416-266-9409



Attention: Chief Financial Officer




          with a copy to:



Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Fax: 212-455-2502

Attention: D. Rhett Brandon




          If to any Investor:




To the addresses listed under such Investor on the signature

pages hereto.




          8.2. Partial Invalidity. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law, but in the case
that any provision contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of the Agreement, and the Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had never been contained herein unless the
deletion of such provision or provisions would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable or have a Material Adverse
Effect.




          8.3. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original instrument, but all of which
shall be considered one and the same agreement, and shall become binding when one or more
counterparts have been signed by each of the parties and delivered to CBAY; provided, however,
that delivery of a facsimile of a counterpart shall be sufficient to satisfy this Section 8.3.




          8.4. Governing Law. This Agreement shall be construed in accordance with and
the Agreement and all disputes hereunder shall be governed by, the laws of the State of New
York. By its execution and delivery of the Agreement, each of the parties hereto hereby
irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding with
respect to any matter under or arising out of or in connection with the Agreement or for
recognition or enforcement of any judgment in any such action, suit or proceeding may be
brought, on a non-exclusive basis, in any federal or state court of competent jurisdiction in
the Borough of Manhattan of the City of New York. By execution and delivery of the Agreement,
each of the parties hereto irrevocably accepts and submits itself to the nonexclusive
jurisdiction of any such court, generally and unconditionally, with respect to any such action,
suit or proceeding and waives any defense of forum non conveniens or based upon venue if such
action, suit or proceeding is brought in accordance with this provision.




          8.5. Assignment; Successors and Assigns. Neither the Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties; provided, however, that any successor or
assignee executes a joinder to the Agreement and becomes a party to the other Transaction
Documents to which the assignor is a party; and provided further that notwithstanding any such
assignment, such Investor shall remain liable











 



14



for all of its obligations under this Agreement. Subject to the foregoing, the Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors or
assigns, heirs, legatees, distributees, executors, administrators and guardians. Nothing in the
Agreement, expressed or implied, is intended to confer or shall be conferred upon any Person
(other than the parties hereto and the successors and assigns permitted by this Section 8.5) any
right, remedy or claim under or by reason of the Agreement.




          8.6. Titles and Headings. Titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of the Agreement.




          8.7. Schedules and Exhibits. The schedules and exhibits referred to in the
Agreement shall be construed with and as an integral part of the Agreement to the same extent as
if the same had been set forth verbatim herein. Except as expressly set forth herein, disclosure
of any fact or item in any schedule hereto shall, to the extent readily apparent from the face
of such schedule and relevant to any other schedule or schedules, be deemed to be disclosed in
such other schedule or schedules, notwithstanding the lack of a specific cross-reference.




          8.8. Knowledge. In each provision of the Agreement in which a representation
or warranty is qualified to the “knowledge” of a Person, unless otherwise stated in such
provision, each such phrase means that the Person does not have actual knowledge on the date
hereof or on the Effective Date, as applicable, of any state of facts which is different from the
facts described in the warranty or representation.




          8.9. Entire Agreement; Amendments. This Agreement, including the
schedules and exhibits, the other Transaction Documents and the confidentiality agreements
previously entered into by the Investors with respect to the Exchange or any related transaction
with CBAY, contain the entire understanding of the parties hereto with regard to the subject
matter contained herein and therein. The parties hereto, by mutual agreement in writing, may
amend, modify and supplement the Agreement. Any such agreement shall be effective and binding
for purposes of the Agreement if it is signed by each of the parties hereto. Any purported
amendment that does not comply with the foregoing shall be null and void.




          8.10. Waivers. Any term or provision of the Agreement may be waived, or
the time for its performance may be extended, by the party or parties entitled to the benefit
thereof. The failure of any party hereto to enforce at any time any provision of the Agreement
shall not be construed to be a waiver of such provision, nor in any way to affect the validity of
the Agreement or any part hereof or the right of any party thereafter to enforce each and every
such provision. No waiver of any breach of the Agreement shall be held to constitute a waiver of
any other or subsequent breach.




          8.11. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH










 



15

PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.11.




          8.12. Third-Party Beneficiary. This Agreement is intended for the benefit
of the parties hereto and no other Person shall have any rights hereunder nor shall any other
person be an express third-party beneficiary hereto or, without limiting the foregoing, have
the right to enforce the implementation of the Agreement as if it were a direct party hereto.




          8.13. Expenses. The parties will bear their own expenses in connection
with the negotiation, execution and performance of the Agreement and the transactions contemplated
hereby, provided that upon Closing, CBAY will reimburse each of Costa Brava Partnership III, L.P.
and Newcastle Partners, L.P. each up to $1.25 million for reasonable and documented legal expenses
related to the transactions contemplated hereby and to other matters relating to their investment
in MEDQ Shares.




          8.14. Termination




     (a) Termination by Mutual Consent. The Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the Effective
Date by mutual written agreement of the parties hereto.



     (b) Termination by Each Investor. The Agreement may be terminated at any
time prior to the Effective Date by each Investor (with respect to that Investor only),
upon written notice to CBAY, if:



               (i) the MEDQ Dividend has not been paid to the holders of MEDQ Shares by October 31,
2010;



               (ii) the consummation of the transactions provided for in Article II has not occurred by
January 31, 2011 (the “Termination Date”); provided, however, that no Investor is then in
material breach of this Agreement so as to cause any conditions set forth in Section 7.2 hereto
not to be satisfied;



               (iii) there has been a material breach of any covenant or agreement made by CBAY in the
Agreement, such that the conditions set forth in Section 7.1(b) could not be satisfied on or prior
to the Termination Date and such breach or condition is not curable or, if curable, has not been
cured prior to the earlier of (x) thirty (30) calendar days after written notice thereof is given
by such Investor to CBAY or (y) the Termination Date; provided, however, that such
Investor is not then in material breach of this Agreement so as to cause any conditions set forth
in Section 7.2 hereto not to be satisfied; or



               (iv) all of the conditions set forth in Section 7.2 have been satisfied and CBAY fails to
consummate the transactions contemplated by this Agreement within the earlier of (i) two (2)
Business Days after the Effective Date should have occurred pursuant to Section 2.3 hereto and
(ii) the Termination Date, and the Investors stood ready, willing and able to consummate all such
transactions during such period.



     The termination of the Agreement by any Investor pursuant to this Section 8.14(b) shall
not terminate any of the obligations of any other Investor hereunder.



     (c) Termination by CBAY. The Agreement may be terminated at any time prior to
the Effective Date by CBAY upon written notice to the other parties to the Agreement, if the
Closing shall not have been consummated by the Termination Date or only with respect to any
Investor in breach of its obligations, upon written notice to such Investor, if:










 



16




               (i) the consummation of the transactions provided for in Article II has not occurred by the
Termination Date; provided, however, that CBAY is not then in material breach of this
Agreement so as to cause any conditions set forth in Section 7.1 hereto not to be satisfied;



               (ii) there has been a material breach of any covenant or agreement made by any Investor in
the Agreement, such that the conditions set forth in Section 7.2(b) could not be satisfied on or
prior to the Termination Date and such breach or condition is not curable or, if curable, has not
been cured prior to the earlier of (i) thirty (30) calendar days after written notice thereof is
given by CBAY to such Investor or (ii) the Termination Date; provided, however, that CBAY
is not then in material breach of this Agreement so as to cause any conditions set forth in
Section 7.1 hereto not to be satisfied; or



               (iii) all of the conditions set forth in Sections 7.1 have been satisfied and any Investor
fails to consummate the transactions contemplated by this Agreement within the earlier of (i)
two (2) Business Days after the Effective Date should have occurred pursuant to Section 2.3
hereto and (ii) the Termination Date, and CBAY stood ready, willing and able to consummate all
such transactions during such period.



          8.15. Effect of Termination. If the Agreement is terminated as permitted
under Section 8.14 hereto, the Agreement shall forthwith become void and have no effect (unless
the termination is with respect to Investors comprising fewer than all Investors, in which case
the Agreement survives with respect to the remaining Investors and CBAY but does not survive
with respect to the terminated Investors and CBAY), and none of CBAY or any of the Investors as
to which this Agreement terminates or any of the officers or directors of any of them shall have
any liability of any nature whatsoever hereunder, or in connection with the transactions
contemplated hereby, except that: (i) such termination shall not terminate the rights or
remedies of any party with respect to any breach of any provision of the Agreement prior to
termination, including any breach of the obligations to consummate the transactions contemplated
herein, (ii) such termination shall not terminate the obligations of the parties pursuant to
the confidentiality agreements entered into by and between CBAY and each Investor in connection
with transactions contemplated hereby and (iii) this Section 8.15, Section 8.12 and Section 8.14
shall survive such termination.




          8.16. Specific Performance. The parties agree that irreparable damage would
occur in the event that any provision of this Agreement is not performed in accordance with its
specific terms or is otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court having jurisdiction, this being in
addition to any other remedy to which they are entitled at Law or in equity.




[Signatures on next pages]










 



17


     IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be executed as of the day
and year first above written.



	 	 	 	 	 
	 	CBAY



CBAYSYSTEMS HOLDINGS LIMITED

 	 
	 	By:  	/s/ Clyde Swoger
 	 
	 	 	Name:  	Clyde Swoger 	 
	 	 	Title:  	CFO 	 
	 










 



18

	 	 	 	 	 
	 	INVESTORS



Costa Brava Partnership III, L.P.

 	 
	 	By:  	/s/ Setu Hank
 	 
	 	 	Name:  	Setu Hank 	 
	 	 	Title:  	Managing member GP 	 
	 




Addresss
for Notices:




420 Boylston Street

Boston, MA 02116




Number
of MEDQ Shares: 2,473,698




Investor Percentage: 6.5%











 



19

	 	 	 	 	 
	 	Newcastle Partners, L.P.

 	 
	 	By:  	/s/ Mark E. Schwarz
 	 
	 	 	Name:  	Mark E. Schwarz 	 
	 	 	Title:  	General Partner 	 
	 




200 Crescent Court

Suite 1400

Dallas, Texas 75201




Number of MEDQ Shares: 1,111,706




Investor Percentage: 3.0%











 



20

	 	 	 	 	 
	 	Black Horse Capital Management LLC

 	 
	 	By:  	/s/ Dale B. Chappell
 	 
	 	 	Name:  	Dale B. Chappell 	 
	 	 	Title:  	Manager 	 
	 




338 S. Sharon Amity Rd, #202

Charlotte, NC 28211




Number of MEDQ Shares: 1,150,295




Investor Percentage: 3.1%











 



21

	 	 	 	 	 
	 	American Hallmark Insurance Company of Texas

 	 
	 	By:  	/s/ Mark E. Schwarz
 	 
	 	 	Name:  	Mark E. Schwarz 	 
	 	 	Title:  	Executive Chairman

Hallmark Financial Services, Inc. 	 
	 




777 Main Street

Suite 1000

Fort Worth, Texas 76102




Number of MEDQ Shares: 41,460




Investor Percentage: 0.1%