Full Press Release Details
HOSPITAL HOLDING LLC (SOLELY FOR THE PURPOSES OF CERTAIN SECTIONS OF ARTICLE IV, SECTION 12.15 AND THE SECTIONS RELATED THERETO),
HEALTH LLC (SOLELY FOR THE PURPOSES OF SECTION 4.18 AND THE SECTIONS RELATED THERETO)
T. VO, IN HIS CAPACITY AS THE NUTEX REPRESENTATIVE
AS OF NOVEMBER 23, 2021
| Article I Defined Terms | |
| 1.1. Defined Terms | 2 |
| Article II THE MERGER | |
| 2.1. The Merger | 2 |
| 2.2. Closing | 2 |
| 2.3. Effective Time | 3 |
| 2.4. Effects of the Merger | 3 |
| 2.5. Organizational Documents | 3 |
| 2.6. Officers | 3 |
| Article III EFFECT OF THE MERGER | |
| 3.1. Effect of the Merger | 3 |
| 3.2. Exchange Procedures | 4 |
| 3.3. Capitalization Certificate; Final Consideration | 7 |
| Article IV PRE-CLOSING COVENANTS AND ADDITIONAL AGREEMENTS | 7 |
| 4.1. Parent's Conduct of the Business | 7 |
| 4.2. Nutex's Conduct of the Business | 10 |
| 4.3. Access to Information | 13 |
| 4.4. Commercially Reasonable Efforts | 15 |
| 4.5. No Solicitation; Acquisition Proposal | 15 |
| 4.6. Notices of Certain Events; Continuing Disclosure | 19 |
| 4.7. Confidentiality, Press Releases and Public Announcements | 20 |
| 4.8. HSR Act | 20 |
| 4.9. Consents | 21 |
| 4.10. Preparation of the Proxy | 22 |
| 4.11. Parent Stockholder Approval | 23 |
| 4.12. Updated Schedules | 23 |
| 4.13 .Listing Application | 24 |
| 4.14. Parent Name Change | 24 |
| 4.15. Post-Closing Parent Governance | 24 |
| 4.16. Nutex Managing Member and Nutex Member Approval | 25 |
| 4.17. Nutex Equity Adjustment | 25 |
| 4.18. NH Obligations | 26 |
| 4.19. MHH | 26 |
| 4.20. Nutex Real Estate Guarantees | 26 |
| 4.21. Nutex Additional Financial Statements | 27 |
| Article V CLOSING DELIVERIES | 27 |
| 5.1. Closing Deliveries by Parent and Merger Sub | 27 |
| 5.2. Closing Deliveries by Nutex | 28 |
| Article VI REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 29 |
| 6.1. Organization and Qualification | 30 |
| 6.2. Authority; Capacity | 30 |
| 6.3. Capitalization; Ownership of Parent; Debt | 30 |
| 6.4. No Conflicts; Required Consents | 32 |
| 6.5. Subsidiaries | 33 |
| 6.6. Financial Statements | 33 |
| 6.7. Absence of Undisclosed Liabilities | 33 |
| 6.8. Absence of Changes | 34 |
| 6.9. Material Contracts | 34 |
| 6.10. Title and Sufficiency of Assets | 36 |
| 6.11. Leased Real Property | 36 |
| 6.12. Intellectual Property | 38 |
| 6.13. Service Providers | 41 |
| 6.14. Parent Benefit Plans | 43 |
| 6.15. Compliance with Laws; Governmental Approvals; Compliance with Health Care Laws | 44 |
| 6.16. Litigation | 47 |
| 6.17. Taxes | 47 |
| 6.18. Brokers | 50 |
| 6.19. Transactions with Affiliates | 50 |
| 6.20. Insurance Policies | 50 |
| 6.21. Bank Accounts | 50 |
| 6.22. Powers of Attorney | 50 |
| 6.23. Certain Securities Law Matters; Certain Business Practices | 50 |
| 6.24. Information Provided | 52 |
| 6.25. Parent Fairness Opinion | 52 |
| Article VII REPRESENTATIONS AND WARRANTIES OF NUTEX | 52 |
| 7.1. Organization and Qualification | 53 |
| 7.2. Authority; Capacity | 53 |
| 7.3. Capitalization; Ownership of Nutex; Debt | 53 |
| 7.4. No Conflicts; Required Consents | 54 |
| 7.5. Subsidiaries | 55 |
| 7.6. Financial Statements | 55 |
| 7.7. Absence of Undisclosed Liabilities | 56 |
| 7.8. Absence of Changes | 56 |
| 7.9. Material Contracts | 57 |
| 7.10. Title and Sufficiency of Assets | 59 |
| 7.11. Leased Real Property | 59 |
| 7.12. Intellectual Property | 60 |
| 7.13. Service Providers | 63 |
| 7.14. Nutex Benefit Plans | 65 |
| 7.15. Compliance with Laws; Governmental Approvals; Compliance with Health Care Laws | 67 |
| 7.16. Litigation | 72 |
| 7.17. Taxes | 72 |
| 7.18. Brokers | 75 |
| 7.19. Transactions with Affiliates | 75 |
| 7.20. Insurance Policies | 75 |
| 7.21. Bank Accounts | 75 |
| 7.22. Powers of Attorney | 75 |
| 7.23. Certain Business Practices | 75 |
| 7.24. Information Provided | 76 |
| 7.25. Accredited Investor Status | 76 |
| Article VIII NUTEX REPRESENTATIVE | 77 |
| 8.1. Nutex Representative | 77 |
| Article IX CONDITIONS TO CLOSING | 78 |
| 9.1. Conditions Precedent to Obligations of Nutex | 78 |
| 9.2. Conditions Precedent to Obligations of Parent and Merger Sub | 80 |
| Article X No survival of representations and covenants | 81 |
| 10.1. No Survival of Representations and Covenants | 81 |
| Article XI termination | 82 |
| 11.1. Termination | 82 |
| 11.2. Fees and Expenses | 83 |
| 11.3. Effect of Termination | 84 |
| Article XII miscellaneous provision | 84 |
| 12.1. Expenses | 84 |
| 12.2. Amendments and Waivers | 85 |
| 12.3. Notices | 85 |
| 12.4. Governing Law | 86 |
| 12.5. Exhibits and Schedules | 86 |
| 12.6. Assignments Prohibited; Successors and Assigns | 86 |
| 12.7. No Third-Party Beneficiaries | 86 |
| 12.8. Counterparts | 86 |
| 12.9. Severability | 86 |
| 12.10. Entire Agreement | 86 |
| 12.11. Interpretation | 87 |
| 12.12. Construction | 87 |
| 12.13. Jurisdiction; Service of Process | 87 |
| 12.14. Waiver of Jury Trial | 87 |
| 12.15. Provisional Relief; Specific Performance | 88 |
| 12.16. Recovery of Fees by Prevailing Party | 88 |
| 12.17. Further Assurances | 88 |
| 12.18. Time of the Essence | 88 |
| 12.19. Confidentiality | 88 |
| 12.20. Non-Recourse Persons | 89 |
| 12.21. Conflict Waiver; Privilege | 89 |
| 12.22. Schedules | 90 |
| ANNEXES: | |
| Annex A - Nutex Owners | |
| Annex B - Nutex Subsidiaries | |
| Annex C-1 - Officers of Surviving Entity | |
| Annex C-2 - Officers and Directors of Parent and each Parent Subsidiary | |
| EXHIBITS: | |
| Exhibit A - Defined Terms | |
| Exhibit B - Form of Parent Amended and Restated Certificate of Incorporation | |
| Exhibit C - Form of Certificate of Merger | |
| Exhibit D - Form of Lock Up Agreement | |
| Exhibit E - Form of Nutex Amended and Restated LLC Agreement | |
| Exhibit F - Form of Registration Rights Agreement | |
| Exhibit G - Forms of Contribution Agreements (Mature, Ramping and Under Construction) | |
| PARENT SCHEDULES | |
| NUTEX SCHEDULES |
AGREEMENT AND PLAN OF MERGER is made as of November 23, 2021 (the "Signing Date"), by and among Nutex Health
Holdco LLC, a Delaware limited liability company ("Nutex"), Clinigence Holdings, Inc., a Delaware corporation ("Parent"),
Nutex Acquisition LLC, a Delaware limited liability company and wholly owned subsidiary of Parent ("Merger Sub"),
Micro Hospital Holding LLC, a Texas limited liability company ("MHH"), solely for the purposes of certain Sections
in Article IV, Section 12.15 and the Sections related thereto, Nutex Health LLC, a Texas limited liability company ("NH"),
solely for the purposes of Section 4.18 and the Sections related thereto, and Thomas T. Vo, in his capacity as the Nutex Representative
(as hereinafter defined). Each of Nutex, Parent and Merger Sub may be referred to herein individually as a "Party"
and collectively as the "Parties".
prior to or concurrently with the execution hereof, Nutex and the Nutex Owners have entered into certain contribution agreements
in the forms attached hereto as Exhibit G (the "Contribution Agreements") pursuant to which such Nutex Owners
have agreed to contribute certain equity interests in the Nutex Subsidiaries to Nutex in exchange for specified equity interests in Nutex
(collectively, the "Contribution Transaction");
the consummation of the Contribution Transaction is conditioned upon the approval of this Agreement by the Parent Stockholders and, subject
to such approval, will occur immediately prior to Closing, and, subject to the equity adjustment described in Section 4.17 hereof,
resulting in (a) the ownership by the Nutex Owners, directly and indirectly, of an aggregate of one hundred percent (100%) of the Nutex
Membership Interests, and (b) the ownership by Nutex of the issued and outstanding equity and voting interests in each of the Nutex Subsidiaries
as listed on Annex B;
as of the Signing Date, Parent owns, and immediately prior to the Closing, Parent shall own, one hundred percent (100%) of the issued
and outstanding equity interests of Merger Sub and, directly or indirectly, one hundred percent (100%) of the issued and outstanding
equity interests of the other Parent Subsidiaries;
the Parties intend that, at the Closing, Merger Sub be merged with and into Nutex, with Nutex surviving that merger on the terms
and subject to the conditions set forth herein (the "Merger");
each of the Nutex Manager, the current sole member of Nutex, and, pursuant to their execution of the Contribution Agreements, the
Nutex Owners have: (a) determined that it is in the best interests of Nutex and the Nutex Owners, and declared it advisable, to enter
into this Agreement and the other Transaction Documents; and (b) the Nutex Manager has approved this Agreement, upon the terms and subject
to the conditions set forth herein, and has, upon such terms and subject to such conditions, recommended that the Nutex Owners (pursuant
to their execution of the Contribution Agreements) vote in favor of this Agreement and the Merger;
the Board of Directors of Parent (the "Parent Board"), on behalf of Parent and Merger Sub has: (a) determined
that it is in the best interests of Parent and Merger Sub, as
and their respective stockholder(s) and member(s), and declared it advisable, to enter into this Agreement and the other Transaction
Documents and to consummate the Merger in accordance with the DGCL; and (b) approved this Agreement upon the terms and subject to the
conditions set forth herein, and has, upon such terms and subject to such conditions, recommended that the Parent Stockholders vote in
favor of the approval of this Agreement and the Merger;
Parent, on its own behalf and as the sole member of Merger Sub, has adopted this Agreement and the other transactions contemplated
the Parent Board has approved the issuance of shares of Parent's common stock, par value $0.001 per share (the "Parent
Common Stock"), in connection with the transactions contemplated herein, including the Merger, on the terms and subject to
the conditions set forth in this Agreement; and
the Parties desire to make certain representations, warranties, covenants, and agreements in connection with the Merger and the other
transactions contemplated by this Agreement and also to prescribe certain terms and conditions to the Merger.
THEREFORE, in consideration of the foregoing recitals and the mutual representations, warranties, covenants and promises contained
herein, and other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
Defined Terms. Certain capitalized terms used in this Agreement are defined in Exhibit A attached hereto.
The Merger. On the terms and subject to satisfaction or valid waiver of the conditions set forth in this Agreement and
the Certificate of Merger, and in accordance with the DGCL, at the Effective Time: (a) Merger Sub will merge with and into Nutex; (b)
the separate corporate existence of Merger Sub will cease; and (c) Nutex will continue its limited liability company existence under
the DGCL as the surviving Entity in the Merger and a Subsidiary of Parent (sometimes referred to herein as the "Surviving Entity").
Closing. Upon the terms and subject to the conditions set forth in this Agreement, the closing of transactions contemplated
herein, including the Merger (the "Closing"), will take place via the remote exchange of documents, as soon as practicable
(and, in any event, within three (3) Business Days) after the satisfaction or, to the extent permitted hereunder, waiver of all conditions
to the Merger set forth in ARTICLE IX (other than those conditions that by their nature are to be satisfied at the Closing, but
subject to the satisfaction or, to the extent permitted hereunder, waiver of all such conditions), unless this Agreement has been terminated
terms or unless another time or date is agreed to in writing by the Parties hereto. The actual date of the Closing is hereinafter referred
to as the "Closing Date".
Effective Time. In accordance with the terms and subject to the conditions of this Agreement, at the Closing, Nutex, Parent,
and Merger Sub shall cause the Certificate of Merger to be executed, acknowledged, and filed with the Secretary of State of the State
of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the
DGCL. The Merger will become effective at such time as the Certificate of Merger has been duly filed with the Secretary of State of the
State of Delaware or at such later date or time as may be agreed by Nutex and Parent in writing and specified in the Certificate of Merger
in accordance with the DGCL (the effective time of the Merger being hereinafter referred to as the "Effective Time").
Effects of the Merger. The Merger shall have the effects set forth in this Agreement, in the Certificate of Merger and
in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, from and after the Effective
Time, all property, rights, privileges, immunities, powers, franchises, licenses, and authority of Nutex and Merger Sub shall vest in
the Surviving Entity, and all debts, liabilities, obligations, restrictions, and duties of each of Nutex and Merger Sub shall become
the debts, liabilities, obligations, restrictions, and duties of the Surviving Entity.
Organizational Documents. The certificate of formation of the Surviving Entity, as in effect immediately after the Effective
Time, shall be the same as the certificate of formation of Nutex, as in effect immediately prior to the Effective Time, and such certificate
of formation shall be the certificate of formation of the Surviving Company until thereafter amended in accordance with the DGCL. At
the Effective Time, the Nutex LLC Agreement shall be amended and restated in substantially the form attached hereto as Exhibit E
(the "A&R LLC Agreement"), and the A&R LLC Agreement shall be the limited liability company agreement of the
Surviving Entity until thereafter amended as provided by the DGCL, the certificate of formation and the A&R LLC Agreement.
Officers. Annex C-1 sets forth the Persons who shall be the officers of the Surviving Entity from and after
the Effective Time, until their respective successors are duly elected or appointed and qualified or their earlier death, resignation
or removal in accordance with the DGCL and the Organizational Documents of the Surviving Entity.
Effect of the Merger
Effect of the Merger. At the Effective Time, except as otherwise contemplated by this Agreement, as a result of the Merger
and without any action on the part of Parent, Merger Sub, or Nutex or the holder of any Capital Stock of Parent, Merger Sub, or Nutex,
any outstanding options, warrants or other convertible securities of Nutex shall be cancelled or terminated prior to the Closing and
the following shall occur:
Conversion of Nutex Interests. Each unit representing an equity interest in Nutex issued and outstanding immediately prior to
the Effective Time but after the
of the Contribution Transaction (collectively, the "Nutex Membership Interests") shall be converted into the right
to receive 3.571428575 (the "Exchange Ratio") fully paid and non-assessable shares of Parent Common Stock ("Merger
Consideration"); provided that in case of any Nutex Redemption (as defined in Section 4.17) from the date hereof
until the Closing such Exchange Ratio will increase to such number as determined by dividing the Nutex Post-Redemption Value by the number
of Nutex Membership Interests outstanding after any such redemption. "Nutex Post Redemption Value" means (i) 10 times
the EBITDA of Nutex minus (ii)(A) any aggregate Debt of the Nutex Subsidiaries or Nutex facilities outstanding as of the Closing Date
and (B) the New Nutex Debt (as defined in Section 4.17) incurred in connection with the Nutex Redemption. All Nutex Membership
Interests that have been converted into the right to receive the Merger Consideration as provided in this Section 3.1 shall as
of the Effective Time no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each Certificate
and each Book-Entry Share which immediately prior to the Effective Time represented such interests shall thereafter represent only the
right to receive the Merger Consideration therefor in accordance with the terms of this Agreement. Certificates and Book-Entry Shares
previously representing Nutex Membership Interests shall be exchanged for the Merger Consideration, without interest, upon the surrender