EXECUTION COPY
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this "Agreement"), dated as of September 5,
2001 among Cerner Corporation, a Delaware corporation ("Cerner"), and those
certain shareholders of Dynamic Healthcare Technologies, Inc., a Florida
corporation ("DHT"), named on Schedule I hereto (individually, a "Shareholder"
and collectively, the "Shareholders").
WHEREAS, DHT, Cerner and Cerner Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Cerner ("Merger Sub"), propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as
amended from time to time, the "Merger Agreement"; capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement)
which provides, among other things, that DHT will merge with and into Merger Sub
(the "Merger"); and
WHEREAS, as of the date hereof, each Shareholder owns of record or
beneficially the respective number of shares of Series C Redeemable Convertible
Preferred Stock, par value $0.01 per share (the "Preferred Stock") set opposite
such Shareholder's name on Schedule I hereto; and
WHEREAS, as an essential condition to the willingness of Cerner to
enter into the Merger Agreement, Cerner has requested that each Shareholder
agree, and in order to induce Cerner to enter into the Merger Agreement, each
Shareholder has agreed, to enter into this Agreement with respect to all the
shares of Preferred Stock owned beneficially and of record by such Shareholder
as of the date hereof or of which such Shareholder may hereafter acquire record
or beneficial ownership (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 VOTING AGREEMENT. Each Shareholder hereby agrees that,
with respect to any meeting of holders of Preferred Stock or any action to be
taken by written consent with respect to the Preferred Stock, the Shareholder
shall:
(a) appear in person or by proxy (or use its reasonable best efforts
to cause the holder of record on any applicable record date to appear in
person or by proxy) for the purpose of obtaining a quorum at the
applicable meeting and at any adjournment or postponement thereof; and
(b) vote (or cause to be voted) the Shares (or, as applicable, shall
execute or cause to be executed written consents in respect of the Shares)
in favor of the approval and adoption of the Merger Agreement, the Merger
and, any other transactions or matters
contemplated by the Merger Agreement, and any actions required in
furtherance thereof and hereof.
SECTION 1.2 IRREVOCABLE PROXY. In order to ensure that the voting
agreement set forth in Section 1.1 and the other obligations of each Shareholder
hereunder will be carried out, each Shareholder hereby grants an irrevocable
proxy, coupled with an interest, in the form attached hereto as Exhibit A (the
"Irrevocable Proxy"). Such Shareholder hereby revokes all other proxies and
powers of attorney with respect to the Shares that such Shareholder may have
heretofore appointed or granted that would prevent such Shareholder from
performing its obligations hereunder, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by such Shareholder with respect thereto. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of any Shareholder and any obligation of such Shareholder under this Agreement
shall be binding upon the transferees, heirs, personal representatives,
successors and assigns of such Shareholder.
SECTION 1.3 WAIVER AND CONSENT TO OPTION GRANT. Each Shareholder
hereby waives any adjustment to the conversion price of the Preferred Stock
pursuant to Section 6 of Article VI of the Articles of Incorporation of DHT (the
"Antidilution Provision") which may result from the grant of options pursuant to
the Stock Option Agreement, of even date herewith, by and between DHT and Cerner
(the "Stock Option Agreement"). Each Shareholder hereby agrees that, upon the
request of DHT, the Shareholder shall vote (or cause to be voted) the Shares
(or, as applicable, shall execute or cause to be executed written consents in
respect of the Shares) in favor of the approval and adoption of an amendment to
the Antidilution Provision to provide that no adjustment to the conversion price
of the Preferred Stock shall be made as a result of the grant of options
pursuant to the Stock Option Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER.
Except as set forth on the disclosure letter attached hereto, each Shareholder
represents and warrants to Cerner as follows:
(a) Each Shareholder (if it is a corporation, general or limited
partnership, limited liability company or other legal entity) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. Such Shareholder has
the requisite power and authority (and if a natural person, the legal
capacity) to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by such Shareholder and no other proceedings on the part of
such Shareholder are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Shareholder and, assuming that
this Agreement constitutes a valid and binding agreement of Cerner, is a
legal, valid and binding obligation of such Shareholder, enforceable
against such Shareholder in accordance with
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its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws, now or
hereafter in effect, relating to or affecting the rights and remedies
of creditors generally, and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or a law) and to general principles governing the duties of fiduciaries.
(b) The execution and delivery of this Agreement by such Shareholder
do not, and the performance of this Agreement by such Shareholder will not
conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or require payment under, or result in
the creation of any Encumbrances (as defined below) on any of the assets
of such Shareholder pursuant to any contract or other instrument to which
such Shareholder is a party or by which such Shareholder or any of such
Shareholder's assets are bound, except for any thereof that would not
reasonably be expected to materially impair the ability of such
Shareholder to perform such Shareholder's obligations hereunder or to
consummate the transactions contemplated hereby.
(c) The execution and delivery of this Agreement by such Shareholder
do not, and the performance of this Agreement by such Shareholder will
not, require such Shareholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to,
any Governmental Entity based on any federal, state, local or foreign law,
statute, ordinance, rule, regulation, permit, injunction, writ, judgment,
decree or order (collectively, "Laws") of any Governmental Entity, except
(i) pursuant to the Exchange Act and the Securities Act; and (ii) where
the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, could not reasonably be expected
to materially impair the ability of such Shareholder to perform such
Shareholder's obligations hereunder or to consummate the transactions
contemplated hereby.
(d) There is no suit, action, investigation or proceeding pending
or, to the knowledge of such Shareholder, threatened against such
Shareholder at law or in equity before or by any Governmental Entity that
would reasonably be expected to materially impair the ability of such
Shareholder to perform such Shareholder's obligations hereunder or to
consummate the transactions contemplated hereby.
(e) Such Shareholder owns beneficially and of record the shares of
Preferred Stock set forth opposite such Shareholder's name on Schedule I
hereto (the "Existing Shares"). Except as set forth on Schedule I, the
Existing Shares constitute all the shares of Preferred Stock owned of
record or beneficially by such Shareholder. Except as set forth on
Schedule I, such Shareholder has sole voting power, sole power of
disposition and all other Shareholder rights with respect to all the
Existing Shares, with no restrictions, other than pursuant to applicable
securities laws, on such Shareholder's rights of disposition pertaining
thereto. None of the Existing Shares is subject to (i) any right of first
refusal or first offer, (ii) right to purchase, acquire or vote, or (iii)
proxy or power of attorney, except in the case of clause (ii) or (iii) any
rights created by this
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Agreement. Such Shareholder has good and valid title to all the Existing
Shares, free and clear of all Encumbrances (other than any Encumbrance
created by this Agreement).
(f) Such Shareholder is not a party to any agreement, arrangement or
understanding with respect to voting, holding or disposing of any Shares
or Other Securities, either as of the date hereof or at any time in the
future.
ARTICLE III
SURVIVAL
SECTION 3.1 SURVIVAL. All provisions of this Agreement shall survive
any termination of the Merger Agreement and shall remain in full force and
effect, except as otherwise provided in Sections 3.2 and 3.3.
SECTION 3.2 TERMINATION. Article I (including the Irrevocable Proxy
granted pursuant to Section 1.2) shall terminate upon any termination of the
Merger Agreement in accordance with Article IX thereof.
SECTION 3.3 EFFECT OF TERMINATION. In the event that any part of
this Agreement shall terminate pursuant to this Article III, such part of this
Agreement shall thereafter be void and the parties hereto shall have no further
rights or obligations with respect thereto, except as a result of any prior
breach thereof.
ARTICLE IV
DEFINITIONS
SECTION 4.1 DEFINITIONS. For purposes of this Agreement:
(a) "Beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Securities beneficially owned by one Person shall include
securities beneficially owned by all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act and Rule 13d-5(b) thereunder.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(c) "Encumbrance" means any pledge, security interest, lien, claim,
encumbrance, mortgage, charge, hypothecation, option, right of first
refusal or offer, community property right, other marital right,
preemptive right, voting agreement, voting trust, proxy, power of
attorney, escrow, option, forfeiture, penalty, action at law or in equity,
security agreement, shareholder agreement or other agreement, arrangement,
contract, commitment, understanding or obligation, or any other
restriction, qualification or limitation on the use, transfer, right to
vote, right to dissent, and seek appraisal, receipt
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of income or other exercise of any attribute of ownership, except for
those which do not or could not reasonably be expected to, individually
or in the aggregate, materially impair the ability of such Shareholder
to perform such Shareholder's obligations hereunder or to consummate
the transactions contemplated hereby.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 5.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Cerner and each Shareholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Cerner and such Shareholder with respect to the subject matter
hereof.
SECTION 5.3 COUNTERPARTS. This Agreement 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 and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
SECTION 5.4 ASSIGNMENT. Neither this Agreement nor any rights or
interests hereunder shall be assigned by any Shareholder (whether by operation
of law or otherwise) without the prior written consent of Cerner, except that
any Shareholder may transfer the Shares or Other Securities subject to the
Voting Agreement set forth in Section 1.1 hereof and the Irrevocable Proxy
attached hereto as Exhibit A. Cerner may assign, in its sole discretion, its
rights hereunder to any direct or indirect wholly owned subsidiary or affiliate
of Cerner, but no such assignment shall relieve Cerner of its obligations
hereunder if such assignee does not perform such obligations.
SECTION 5.5 AMENDMENTS. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
SECTION 5.6 NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, facsimile
transmission, mail (registered or certified mail, postage prepaid, return
receipt requested), or courier service providing proof of
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delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Cerner and/or Merger Sub, to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
with copies to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
If to Shareholder, in accordance with the information set
forth on Schedule I hereto.
with copies to:
if to DHT to:
Dynamic Healthcare Technologies, Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx Xxxxxx, P.A.
International Place, Suite 4000
000 X.X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished the others in writing in the manner set forth above.
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SECTION 5.7 NO THIRD PARTY BENEFICIARIES. This Agreement is
not intended to be for the benefit of, and shall not be enforceable by, any
person or entity not a party hereto.
SECTION 5.8 SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
may cause the other party to sustain damage for which it may not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party may be
entitled to the remedy of specific performance of such agreement and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
SECTION 5.9 REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
SECTION 5.10 NO WAIVER. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon strict compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
SECTION 5.11 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, without giving
effect to the principles of conflicts of law thereof.
SECTION 5.12 WAIVER OF JURY TRIAL. EACH OF CERNER AND EACH
SHAREHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CERNER OR SUCH
SHAREHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
SECTION 5.13 DESCRIPTIVE HEADINGS. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CERNER CORPORATION
By:
-----------------------------
Name:
Title:
ARGENTUM CAPITAL PARTNERS, L.P.
By:
-----------------------------
Name:
Title:
RIVERSIDE PARTNERSHIP
By:
-----------------------------
Name:
Title:
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SCHEDULE 1 - SHAREHOLDER AGREEMENT
OTHER SECURITIES
NAME OF SHAREHOLDER SHARES OWNED OWNED ADDRESS FOR NOTICES
------------------- ------------ ----- -------------------
Argentum Capital Partners, 290,000 00 Xxxxxxx Xxxxxx, Xxxxx 000
X.X. Xxx Xxxx, Xxx Xxxx 00000
Riverside Partnership 640,000 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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SHAREHOLDER AGREEMENT DISCLOSURE LETTER
This constitutes the Disclosure Letter of Riverside Partnership (the
"Partnership") for the
Shareholder Agreement dated September 5, 2001 between
Cerner Corporation and Riverside Partnership. Defined terms used in this
Disclosure Letter have the meaning provided in the
Shareholder Agreement.
The Shares are pledged to LaSalle Bank National Association ("LaSalle") under a
Pledge Agreement dated as of October 31, 2000 (the "Pledge Agreement"). The
pledge secures a loan made to Riverside L.L.C., the managing general partner of
the Partnership, pursuant to a Secured Revolving Loan Agreement dated October
31, 2000 (the "Loan Agreement").
The execution and delivery of the
Shareholder Agreement and the Irrevocable
Proxy Coupled with an Interest contemplated by the
Shareholder Agreement (the
"Proxy") may violate the Pledge Agreement, which prohibits the transfer by the
Partnership of any of its rights in the Shares.
The violation of the Pledge Agreement may constitute an Event of Default under
the Loan Agreement. Under the Pledge Agreement, the Partnership retains the
right to vote the Shares until the occurrence of and during the continuance of
an Event of Default under the Loan Agreement.
Xxxx Xxxxxxx has spoken with a representative of LaSalle and received oral
assurances that LaSalle will waive any Event of Default that may result from the
execution and delivery of the
Shareholder Agreement and Proxy by the Partnership
or provide the Partnership with a letter to the effect that the execution and
delivery of the Shareholder Agreement and the Proxy do not constitute an Event
of Default under the Loan Agreement. In the former case, the Partnership will
use its reasonable best efforts to obtain a written waiver of any such Event of
Default promptly after such execution and delivery.
The Partnership is not aware of any other Event of Default that has occurred
under the Loan Agreement, nor has the Partnership received notice of any such
Event of Default from LaSalle.
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EXHIBIT A
IRREVOCABLY PROXY
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