Exhibit 4
WAIVER
WAIVER, dated October 10, 2005 (the "Waiver"), by and among Neoforma,
Inc. (formerly known as Xxxxxxxx.xxx, Inc.), a Delaware corporation (the
"Company"), VHA Inc., a Delaware corporation ("VHA"), and University
HealthSystem Consortium, an Illinois corporation ("UHC").
W I T N E S S E T H:
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WHEREAS, the Company and VHA are parties to (i) that certain Amended
and Restated Common Stock and Warrant Agreement dated as of May 24, 2000 (as
amended pursuant to that certain Amendment to Amended and Restated Common Stock
and Warrant Agreement dated as of October 18, 2000, the "First VHA Agreement")
and (ii) that certain Common Stock Purchase Agreement dated as of January 25,
2001 (as amended pursuant to that certain First Amendment to Common Stock
Purchase Agreement dated as of April 11, 2003, the "Second VHA Agreement" and
together with the First VHA Agreement, the "VHA Agreements");
WHEREAS, the Company and UHC are parties to (i) that certain Amended
and Restated Common Stock and Warrant Agreement dated as of May 24, 2000 (as
amended pursuant to that certain Amendment to Amended and Restated Common Stock
and Warrant Agreement dated as of January 25, 2001, the "First UHC Agreement")
and (ii) that certain Common Stock Purchase Agreement dated as of January 25,
2001 (as amended pursuant to that certain First Amendment to Common Stock
Purchase Agreement dated as of April 14, 2003, the "Second UHC Agreement" and
together with the First UHC Agreement, the "UHC Agreements");
WHEREAS, the Company is entering into an agreement with Global
Healthcare Exchange, LLC ("GHX") as of the date hereof (the "Merger Agreement")
whereby a wholly owned subsidiary of GHX will merge with and into Neoforma such
that Neoforma will become a wholly owned subsidiary of GHX (the "Merger");
WHEREAS, as of the date hereof and in connection with the Merger, each
of VHA and UHC are entering into with GHX (i) voting agreements (the "Voting
Agreements") pursuant to which, among other things, each of VHA and UHC will
agree to vote their shares of Company common stock in favor of the approval of
the Merger and the approval and adoption of the Merger Agreement and (ii)
exchange agreements (the "Exchange Agreements") pursuant to which each of VHA
and UHC will exchange certain of their shares of Company common stock for
membership interests of GHX;
WHEREAS, although the VHA Agreements and the UHC Agreements permit VHA
and UHC to freely vote their shares of the Company's common stock in a
transaction, such as the Merger, that would constitute a Change of Control (as
such term is defined in the VHA Agreements and the UHC Agreements), the Voting
Agreements obligate VHA and UHC to take or refrain from certain actions in
furtherance of the Merger which would be prohibited by the voting restrictions
contained in the VHA Agreements and the UHC Agreements; and
WHEREAS, the VHA Agreements contain certain restrictions on the
transfer of the Company's common stock which would prevent VHA from entering
into and performing certain of its obligations under its Voting Agreement and
Exchange Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and intending to be legally bound hereby, the
parties agree as follows:
Section 1. Waiver. For the sole purpose of permitting VHA, UHC and
their respective affiliates to enter into, and perform their respective
obligations under, the Voting Agreements and the Exchange Agreements, the
Company hereby waives (y) the provisions of Sections 6.1 and 6.3 of the First
VHA Agreement, Section 5.1 of the Second VHA Agreement, Section 6.1 of the
First UHC Agreement and Section 5.1 of the Second UHC Agreement and (z) any
other obligations that VHA, UHC and their respective affiliates have with
respect to the Company or its affiliates, solely to the extent that such other
obligations would otherwise be violated or breached by entering into, or
performing obligations under, the Voting Agreements and the Exchange
Agreements, in each case for the period commencing on the date hereof and
ending on the earlier of (i) the date the Merger is consummated and (ii) the
date the Merger Agreement is terminated by the Company or GHX pursuant to its
terms.
Section 2. Status of Agreements. Except as expressly set forth herein,
no provision or term of any of the VHA Agreements, the UHC Agreements or any
other agreement is hereby waived, modified, amended or supplemented, and all
such provisions and terms, as in effect on the date hereof, are hereby ratified
and shall remain in full force and effect.
Section 3. Amendments; Waivers. This Waiver may not be modified or
amended except by a written instrument signed by authorized representatives of
each party and referring specifically to this Waiver. Any term, provision or
condition of this Waiver may be waived in writing at any time by the party
which is entitled to the benefit thereof.
Section 4. Counterparts. This Waiver may be executed in counterparts,
which together shall be considered one and the same agreement and each of which
shall be deemed an original.
Section 5. Governing Law. This Waiver shall be governed and construed
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and performed entirely within Delaware, without
reference to principles of conflicts of laws or choice of law.
IN WITNESS WHEREOF, each of the parties has executed this Waiver on
the date first written above.
NEOFORMA, INC. (formerly known as
XXXXXXXX.XXX, INC.)
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
VHA INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
UNIVERSITY HEALTHSYSTEM CONSORTIUM
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
