Medscape
SHAREHOLDER VOTING AGREEMENT
This Shareholder Voting Agreement (the "Agreement") is entered into as of
February 21, 2000, between the undersigned, Patricof Private Investment Club,
L.P., a shareholder (the "Shareholder") of Medscape, Inc., a Delaware
corporation ("Medscape"), and MedicaLogic Inc., an Oregon corporation
("MedicaLogic").
A. Contemporaneously with the execution and delivery of this Agreement,
Medscape, MedicaLogic and a wholly owned Delaware subsidiary of MedicaLogic
("Merger Corp."), are entering into an Agreement of Reorganization and Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Corp. will merge with and into Medscape (the "Merger"), upon the terms and
conditions set forth therein. Capitalized terms used in this Agreement but not
otherwise defined shall have the meaning ascribed to them in the Merger
Agreement.
B. The Shareholder desires that the Merger occur and that Medscape and
Merger Corp. combine, as set forth in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Shareholder.
------------------------------
1.1 The Shareholder represents that the Shareholder is the holder of
the number of shares of the capital stock of Medscape set forth on the
signature page to this Agreement ("Shares") free and clear of all Liens.
1.2 The Shareholder represents that the Shareholder does not
beneficially or of record own (as such term is defined in the Exchange Act)
(a) any shares of the capital stock of Medscape or (b) any rights to
acquire any shares of the capital stock of Medscape, other than the
Shareholder's Shares, but excluding any shares of the capital stock of
Medscape which the Shareholder has the right to obtain upon the exercise of
stock options outstanding on the date hereof.
1
1.3 The Shareholder represents that the Shareholder has full power and
authority to make, enter into and carry out the terms of this Agreement.
This Agreement has been duly executed and delivered by the Shareholder and
constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, subject
to laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief and other equitable remedies.
1.4 The Shareholder represents that the execution and delivery of this
Agreement by the Shareholder do not, and the performance of this Agreement
by the Shareholder will not: (a) conflict with or violate any order
applicable to the Shareholder or by which the Shareholder or any of the
Shareholder's properties or Shares is bound or affected; or (b) result in
any breach of or constitute a default (with notice or lapse of time, or
both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien,
restriction, adverse claim, encumbrance or security interest in or to any
of the Shares pursuant to any written, oral or other agreement, contract or
legally binding commitment to which the Shareholder is a party or by which
the Shareholder or any of the Shareholder's properties (including but not
limited to the Shares) is bound or affected.
2. Agreement to Vote Shares; Proxy; Waiver.
---------------------------------------
2.1 Voting. The Shareholder agrees that at any meeting of the
shareholders of Medscape, however called, and in any action taken by
written consent of shareholders of Medscape without a meeting, the
Shareholder shall vote the Shareholder's Shares and any New Shares (as
defined in Section 6 hereof), and shall cause any holder of record of the
Shareholder's Shares or New Shares to vote (a) to approve the Merger and to
approve and adopt the Merger Agreement, (b) to approve any action required
in furtherance thereof and (c) against any action or agreement that would
result in a breach of any representation, warranty, covenant or obligation
of Medscape in the Merger Agreement or that would preclude fulfillment of a
condition under the Merger Agreement to Medscape's obligation to consummate
the Merger.
2.2 Proxy. Contemporaneously with the execution of this Agreement, the
Shareholder agrees to deliver to MedicaLogic a proxy substantially in the
form attached hereto as Exhibit A, which proxy shall be irrevocable to the
fullest extent permitted by law (except that such proxy shall be deemed
automatically revoked upon a termination of this Agreement in accordance
with Section 12.4), with the total number of the Shareholder's Shares and
any New Shares correctly indicated thereon.
2
2.3 Waiver.
------
(a) The Shareholder hereby agrees not to exercise any rights of
appraisal and any dissenters' rights that the Shareholder may have (whether
under applicable law or otherwise) or could potentially have or acquire in
connection with the Merger.
(b) The Shareholder hereby waives any rights of first refusal,
rights of co-sale, registration rights, preemptive rights, rights of
redemption or repurchase, rights to notice and similar rights of the
Shareholder under any agreement, arrangement or understanding applicable to
the Shares or New Shares, in each case only as the same may apply to the
execution and delivery of the Merger Agreement and the consummation of the
Merger and the other transactions contemplated by the Merger Agreement. The
Shareholder agrees to take such actions, and execute and deliver such
agreements and documents, as may reasonably be requested by MedicaLogic in
order to effect, confirm or evidence the foregoing waivers.
3. No Voting Trusts. After the date hereof, the Shareholder agrees that the
----------------
Shareholder will not, nor will the Shareholder permit any entity under the
Shareholder's control to, deposit any of the Shareholder's Shares in a voting
trust or subject any of the Shareholder's Shares to any arrangement with respect
to the voting of such Shares other than agreements entered into with
MedicaLogic.
4. No Proxy Solicitations. The Shareholder agrees that the Shareholder will
----------------------
not, nor will the Shareholder permit any entity under the Shareholder's control
to, (a) solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) in opposition to or
competition with the consummation of the Merger, (b) subject to Section 10,
directly or indirectly solicit, encourage, initiate or otherwise facilitate any
inquiries or the making of any proposal or offer with respect to an Acquisition
Transaction (as defined in the Merger Agreement) or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any person relating to, an Acquisition Transaction proposal,
(c) become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of Medscape for the purpose
of opposing or competing with the consummation of the Merger, or (d) take any
action which would prevent, burden or materially delay the consummation of the
transactions contemplated by this Agreement.
5. [Reserved].
3
6. Additional Purchases. During the period commencing on February 21, 2000
--------------------
and ending after the earlier of (a) the effective date of the Merger or (b) the
date this Agreement shall be terminated in accordance with its terms, the
Shareholder agrees that the Shareholder will not (i) purchase or otherwise
acquire, including without limitation by the exercise of options, beneficial
ownership of any shares of the capital stock of Medscape after the execution of
this Agreement ("New Shares"), or (ii) voluntarily acquire the right to vote or
share in the voting of any shares of the capital stock of Medscape other than
the Shares, unless the Shareholder agrees to deliver to MedicaLogic immediately
after such purchase or acquisition a proxy substantially in the form attached
hereto as Exhibit A with respect to such New Shares, which proxy shall be
irrevocable to the fullest extent permitted by law (except that such proxy shall
be deemed automatically revoked upon a termination of this Agreement in
accordance with Section 12.4). The Shareholder also agrees that any New Shares
acquired or purchased by him shall be subject to the terms of this Agreement to
the same extent as if they constituted Shares.
7. Specific Performance. Each party hereto severally acknowledges that it
--------------------
will be impossible to measure in money the damage to the other party if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
that every such obligation is material and that, in the event of any such
failure, the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto severally agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other party has an adequate remedy at law. Each party hereto
severally agrees that it will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with any other party's seeking
or obtaining such equitable relief.
8. Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and assigns
and shall not be assignable without the written consent of all other parties
hereto.
9. Entire Agreement. This Agreement contains the entire agreement between
----------------
the parties hereto with respect to the subject matter hereof, and this Agreement
supersedes all prior agreements, written or oral, between the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by all the parties hereto. No waiver
of any provisions hereof by any party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. Shareholder Capacity. The execution of this Agreement by Shareholder
--------------------
shall be solely in the Shareholder's capacity as the beneficial owner of the
4
Shares held by Shareholder, and Shareholder makes no agreement or understanding
herein in the Shareholder's capacity, if any, as a director or officer of
Medscape.
11. Spousal Interests in Shares. To the extent that any of Shareholder's
---------------------------
Shares constitute the community property of Shareholder and the Shareholder's
spouse, if applicable, Shareholder shall obtain the spouse's acknowledgment of
and consent to the existence and binding effect of this Agreement, by executing
a spousal consent in the form attached hereto as Exhibit B, and incorporated
into this Agreement by reference.
12. Miscellaneous.
-------------
12.1 This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
Oregon.
12.2 If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than
the party as to which it is held invalid, shall not be affected.
12.3 This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
12.4 This Agreement shall terminate upon the earliest to occur of (i)
the consummation of the Merger or (ii) termination of the Merger Agreement
(the "Expiration Date").
12.5 All Section headings herein are for convenience of reference only
and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
12.6 The obligations of the Shareholder set forth in this Agreement
shall not be effective or binding upon him until after such time as the
Merger Agreement is executed and delivered by MedicaLogic, Medscape and
Merger Corp. The parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
MEDICALOGIC INC.:
By: XXXX X. XXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxx, MD
Title: CEO
SHAREHOLDER: PATRICOF PRIVATE INVESTMENT
CLUB, L.P.
By: XXXX XXXXXXXX
----------------------------------------
Name: Xxxx Xxxxxxxx
Title:
Address: Patricof & Co. Ventures, Inc.
c/o Xxxx X. Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement:
12,735
6
EXHIBIT A
FORM OF PROXY
In connection with the Shareholder Voting Agreement (the
"Voting Agreement"), dated as of February 21, 2000, between the undersigned and
MedicaLogic Inc., an Oregon corporation ("MedicaLogic"), the undersigned, for
consideration received, hereby appoints Xxxx X. Xxxxxxx, Chief Executive Officer
of MedicaLogic, the Shareholder's proxy, with power of substitution, to vote all
shares of capital stock of Medscape, Inc. ("Medscape") owned by the undersigned
at any time until the Expiration Date (as defined in the Voting Agreement), FOR
(a) approval and adoption of the Merger Agreement, dated as of February 21, 2000
(the "Merger Agreement"), between Medscape, MedicaLogic and a wholly owned
Delaware subsidiary of MedicaLogic and (b) approval of any action required in
furtherance thereof, and AGAINST any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Medscape in
the Merger Agreement or that would preclude fulfillment of a condition under the
Merger Agreement to Medscape's obligation to consummate the Merger. This proxy
is coupled with an interest and is irrevocable until the Expiration Date (as
defined in the Voting Agreement).
Dated: February 21, 2000
SHAREHOLDER: PATRICOF PRIVATE INVESTMENT
CLUB, L.P.
By: XXXX XXXXXXXX
----------------------------------------
Name: Xxxx Xxxxxxxx
Title:
7
EXHIBIT B
FORM OF SPOUSAL CONSENT
I, the spouse of _________________, have read and hereby
approve the foregoing Agreement. I hereby agree to be irrevocably bound by the
Agreement and further agree that any community interest shall be similarly bound
by the Agreement. I hereby appoint my spouse as my attorney-in-fact with respect
to any amendment or exercise of any rights under the Agreement.
Dated: , 2000
------------ ---------------------------------------------
8
