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EXHIBIT 99(c)(38)
AGREEMENT
AGREEMENT ("Agreement") dated as of January 15, 1999 by and between
Science Applications International Corporation, a Delaware corporation ("SAIC"),
and Oacis Healthcare Holdings Corporation, a Delaware corporation ("Oacis").
WHEREAS, SAIC is considering a possible transaction between SAIC and
Oacis (the "Transaction"); and
WHEREAS, SAIC is prepared to continue its consideration of such
Transaction on the basis of, among other things, the matters referred to below;
NOW, THEREFORE, in consideration of the foregoing, and the terms,
provisions and agreements contained herein, the parties agree as follows:
SECTION 1. Exclusivity Period. (a) Oacis agrees that, in recognition of the
effort and expenses that will be devoted by SAIC to considering and pursuing a
Transaction, except to the extent the board of directors of Oacis (the "Board
of Directors"), after receiving advice of its counsel, concludes that
compliance with this sentence would be inconsistent with its fiduciary duties,
Oacis will work exclusively with SAIC with respect to a possible transaction
involving the acquisition of Oacis for a period beginning on the date hereof
and expiring on February 15, 1999 or any earlier date as of which SAIC fails to
engage in good faith negotiations to reach a definitive agreement concerning
the possible Transaction ("Exclusivity Period").
(b) During the Exclusivity Period and except to the extent the Board of
Directors of Oacis, after receiving advice of its counsel, concludes that
compliance with this paragraph (b) would be inconsistent with its fiduciary
duties, Oacis, its subsidiaries and its advisors and representatives agree not
to, directly or indirectly, (i) solicit, initiate or encourage the submission
of proposals or offers relating to any transaction of the type referred to in
clause (iii) below ("Acquisition Proposal"), (ii) respond, other than to
acknowledge receipt and indicate that Oacis may not further respond, to any
such Acquisition Proposal, (iii) engage in any negotiations or discussions with
any person or entity relating to any merger, consolidation, acquisition
affecting the ownership of the capital stock of Oacis or its subsidiaries or
the purchase of all or a portion of Oacis' or its subsidiaries' assets (other
than purchases of assets in the ordinary course of business), or (iv) provide
any confidential information concerning Oacis and/or its subsidiaries to any
person or entity who is considering making or has made an Acquisition Proposal
other than SAIC and its representatives. In the event that Oacis, its
subsidiaries or its advisors or representatives receive a solicited or
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unsolicited inquiry, proposal or offer for such a transaction or obtain
information that such an offer is likely to be made, Oacis will provide SAIC
with notice thereof as soon as practicable after receipt thereof but in no event
later than 24 hours after receipt thereof, including (unless prohibited by law)
the identity of the prospective purchaser or soliciting party.
Section 2. Expenses. (a) In recognition of the expenses previously incurred and
the further expenses to be incurred by SAIC in connection with its consideration
of a possible Transaction, Oacis agrees that if, prior to the expiration of the
Exclusivity Period, (i) Oacis fails to engage in good faith negotiations to
reach a definitive agreement concerning the possible Transaction or (ii) the
Board of Directors of Oacis, after receiving advice of counsel, concludes that
(x) compliance with the exclusivity requirement set forth in the first sentence
of Section 1(a) or (y) not taking any action referred to in clause (i), (ii),
(iii) or (iv) of Section 1(b) (whether such action is to be taken by Oacis, any
of its subsidiaries, any of its advisors or any of its representatives) is
inconsistent with its fiduciary duties, then Oacis will reimburse SAIC for
SAIC's reasonable expenses incurred in connection with its consideration of a
proposed Transaction up to a maximum of $100,000.
(b) The required reimbursement will be paid by wire transfer within five
business days following receipt of documentation of the amount due and will be
made to an account designated by SAIC at least two business days prior to the
date such fee is due to be paid.
Section 3. No Additional Obligations. The parties understand and agree that
unless and until a definitive agreement between SAIC and Oacis with respect to a
Transaction has been executed and delivered, neither SAIC nor Oacis will be
under any legal obligation of any kind whatsoever with respect to a Transaction,
except as expressly set forth herein.
Section 4. Remedies. It is further understood and agreed that money damages
would not be a sufficient remedy for any breach of this Agreement and that the
parties shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach.
Section 5. Effectiveness; Governing Law. This Agreement shall become effective
on the date hereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
its conflict of laws principles or rules.
Section 6. Amendments; No Waiver. (a) Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
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signed, in the case of an amendment, by the SAIC and Oasis or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 8. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
SCIENCE APPLICATIONS OACIS HEALTHCARE
INTERNATIONAL HOLDINGS CORPORATION
CORPORATION
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
--------------------- ------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary and Title: Vice President,
Associate General Counsel Chief Financial Officer
and Secretary
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[XXXXXX GODWARD LLP LETTERHEAD]
February 13, 1999
Xxxxx X. Xxxxxx
Science Applications International Corporation
00000 Xxxxxx Xxxxx Xxxxx, X/X X0
Xxx Xxxxx, XX 00000
Re: Project Oscar
Dear Xx. Xxxxxx
This Letter Agreement hereby acknowledges Oacis Healthcare Holding Corp.'s
("Oacis") agreement to extend the expiration date of the Exclusivity Period
referred in that certain Agreement dated January 15, 1999 between Oacis and
Science Applications International Corporation from February 15, 1999 to
February 19, 1999.
Very truly yours,
Oacis Healthcare Holdings Corp.
By: /s/ XXXX XXXXXXX
-----------------------------
Xxxx Xxxxxxx
President
