ex101toform8k07358_12292008.htm


    Exhibit
10.1


    
      AMENDMENT NO. 1 TO DEPOSIT
ESCROW AGREEMENT

      


      THIS
AMENDMENT NO. 1 TO DEPOSIT ESCROW AGREEMENT (this “Amendment”) is
dated as of December 29, 2008 by and among THE BANK OF NEW YORK MELLON, a New
York Banking Corporation, as escrow agent (“Escrow Agent”), HEALTH SYSTEMS
SOLUTIONS, INC., a Nevada corporation (“HSS”), and EMAGEON INC., a Delaware
corporation (“Emageon”, and together with HSS the “Depositors”, and each
individually a “Depositor”). All capitalized terms used and not otherwise
defined herein have the meanings ascribed to them in the Escrow Agreement (as
defined below)

      


      RECITALS:

      


      WHEREAS, Escrow Agent and the
Depositors are party to that certain Deposit Escrow Agreement dated as of
October 21, 2008 (the “Escrow Agreement”);

      


      WHEREAS, the parties hereto
desire to increase the amount deposited under the Escrow Agreement from
$5,000,000 to $9,000,000 and to amend the distribution instructions for the
aggregate Escrow Property as provided in this Amendment and as contemplated by
Amendment No. 1 to the Merger Agreement; and

      


      WHEREAS, accordingly, the
parties desire to amend the Escrow Agreement in the manner more particularly
described below.

      


      NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties have agreed
to amend the Escrow Agreement as follows:

      


      Section
1.             
Amendments to Escrow
Agreement.  The Escrow Agreement is hereby amended as
follows:

      


      (a)           Section
1 of the Escrow Agreement is hereby amended by replacing the reference in such
Section to “$5,000,000” with “$9,000,000”.

       

      (b)           Section
3 of the Escrow Agreement is hereby amended by deleting the text of such Section
in its entirety and replacing it with the following:

       

      “Escrow Agent is directed to hold and
distribute the Escrow Property in the following manner:

       

      HSS and
Emageon hereby agree that Emageon shall be entitled to the entire amount of the
Escrow Property, including any interest or investment proceeds thereof, in the
event that the closing under that certain agreement and plan of merger by and
among HSS, HSS Acquisition Corp. and Emageon, dated as of October 13, 2008, as
amended by Amendment No. 1 thereto dated as of December 29, 2008, a copy of
which is attached hereto as Exhibit A, (the
“Merger Agreement”) does not occur by the close of business on February 11, 2009
for any reason other than as a result of (i) the termination of the Merger
Agreement by either HSS or
Emageon pursuant to Section 7.2(c) thereof or (ii) termination of the Merger
Agreement by HSS pursuant to Section 7.3(a) thereof.  HSS and Emageon
hereby instruct the Escrow Agent to release the entire amount of the Escrow
Property (including interest and investment proceeds) to Emageon (or otherwise
as Emageon shall direct in writing) on February 12, 2009, unless HSS shall have
provided written evidence to Escrow Agent on or before such date that the Merger
Agreement has been terminated under the limited circumstance described in the
immediately preceding sentence (a “Triggering Termination”), in which case the
Default Release Instructions (as defined below) shall apply.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      In the
event the Escrow Agent receives timely written notice of a Triggering
Termination, Escrow Agent shall disburse the Escrow Property only in accordance
with (i) a written instrument delivered to the Escrow Agent that is executed by
both Depositors and that instructs the Escrow Agent as to the disbursement of
the Escrow Property, or (ii) an order of a court of competent jurisdiction, a
copy of which is delivered to the Escrow Agent by either of the Depositors, that
instructs the Escrow Agent as to the disbursement of the Escrow Property (the
actions described in clause (i) and (ii) being, the “Default Release
Instructions”).

       

      Section
2.              Governing
Law.  This Amendment shall be governed by, and construed in
accordance with, the Laws of the State of New York, without giving effect to any
applicable principles of conflict of laws that would cause the Laws of another
State to otherwise govern this Amendment .

      


      Section
3.              No Other
Amendments.  Except as set forth herein, the terms and
provisions of the Escrow Agreement shall remain in full force and
effect.  On or after the date of this Amendment, each reference in the
Escrow Agreement to “this Escrow Agreement,” “hereunder,” “hereof,” “herein” or
words of like import referring to the Escrow Agreement shall mean and be a
reference to the Escrow Agreement as amended by this Amendment, and this
Amendment shall be deemed to be a part of the Escrow Agreement.

      


      Section
4.              Counterparts.  This
Amendment may be executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same
agreement.

      


      [Signature Page
Follows]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      [Signature
Page to Amendment No. 1 to Deposit Escrow Agreement]

       

      IN
WITNESS WHEREOF, each of the parties has caused this Amendment to be executed by
a duly authorized officer as of the day and year first written
above.

       

      
        
          
            	
                    HEALTH
      SYSTEMS SOLUTIONS, INC.

                  	 
      	
                    EMAGEON
      INC.

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                    By:

                  	/s/
      Stan
      Vashovsky	 
      	/s/
      Charles
      A. Jett, Jr.
	 
      	
                    Name:

                  	
                    Stan
      Vashovsky

                  	 
      	Name:	
                    Charles
      A. Jett, Jr.

                  
	 
      	
                    Title:

                  	
                    Chief
      Executive Officer

                  	 
      	Title:	
                    Chief
      Executive Officer

                  


          

        

      

      


      
        
          	 
      	
                  THE
      BANK OF NEW YORK MELLON, as Escrow Agent

                
	 
      	 
      
	 
      	
                  By:

                	/s/
      Thomas
      Hacker
	 
      	 
      	
                  Name:

                	
                  Thomas
      Hacker

                
	 
      	 
      	
                  Title:

                	
                  Vice
      President