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EXHIBIT 2
Execution Version
PARENT VOTING AGREEMENT
This PARENT VOTING AGREEMENT (the "AGREEMENT") is made and entered into
as of March 30, 2000, among Eclipsys Corporation, a Delaware corporation
("ECLIPSYS"), HEALTHvision, a Delaware corporation ("HEALTHVISION"), and the
undersigned stockholder ("STOCKHOLDER") of Xxxxxxxx.xxx, Inc., a Delaware
corporation ("PARENT").
RECITALS
A. Concurrently with the execution of this Agreement, Parent,
Eclipsys and NeoIII Acquisition Corp., a Delaware corporation and a wholly-owned
first-tier subsidiary of Parent ("MERGER SUB"), are entering into an Agreement
and Plan of Merger (the "ECLIPSYS MERGER AGREEMENT") which provides for the
merger of Merger Sub with and into Eclipsys (the "ECLIPSYS MERGER"). Pursuant to
the Eclipsys Merger, shares of capital stock of Eclipsys will be converted into
shares of Parent Common Stock on the basis described in the Eclipsys Merger
Agreement. Capitalized terms used but not defined herein shall have the meanings
set forth in the Eclipsys Merger Agreement.
B. Concurrently with the execution of this Agreement, Parent
and Healthvision are entering into an Agreement and Plan of Merger (the
"HEALTHVISION MERGER AGREEMENT") which provides for the merger of Healthvision
with and into Eclipsys (the "HEALTHVISION MERGER"). Pursuant to the Healthvision
Merger, shares of capital stock of Healthvision will be converted into shares of
Parent Common Stock on the basis described in the Healthvision Merger Agreement.
C. Concurrently with the execution of this Agreement, Parent
and VHA, Inc., a Delaware corporation ("VHA"), and Parent and University
Healthsystem Consortium Services Corporation, an Illinois not-for-profit
corporation ("UHC") are entering into respective Common Stock and Warrant
Agreements pursuant to which Parent will issue to VHA and UHC, respectively,
shares of Parent Stock and Warrants to purchase Parent Common Stock (the "STOCK
AND WARRANT AGREEMENT"), in partial consideration for such parties entry into
and continued performance under certain commercial arrangements among such
parties, Parent and others. The Eclipsys Merger, the Healthvision Merger and the
security issuances contemplated by the Stock and Warrant Agreement,
collectively, the "TRANSACTIONS").
D. Stockholder is the record holder of such number of
outstanding shares of capital stock of Parent as is indicated on the final page
of this Agreement.
E. As a material inducement for Eclipsys to enter into the
Eclipsys Merger Agreement, Eclipsys desires Stockholder to agree, and as a
material inducement for Healthvision to enter into the Healthvision Merger
Agreement, Healthvision desires Stockholder to agree and Stockholder is willing
to agree, to vote the Shares (as defined below), and such other shares of
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capital stock of Parent over which Stockholder has voting power, so as to
facilitate consummation of the Transactions.
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES
1.1 Definitions. For purposes of this Agreement:
(a) Shares. The term "SHARES" shall mean all issued and
outstanding shares of Parent Common Stock owned of record or beneficially by
Stockholder or over which Stockholder exercises voting power, in each case, as
of the record date for persons entitled (i) to receive notice of, and to vote at
the meeting of the stockholders of Parent called for the purpose of voting on
the matters referred to in Section 1.2, or (ii) to take action by written
consent of the stockholders of Parent with respect to the matters referred to in
Section 1.2. Stockholder agrees that any shares of capital stock of Parent that
Stockholder purchases or with respect to which Stockholder otherwise acquires
beneficial ownership or over which Stockholder exercises voting power after the
execution of this Agreement and prior to the date of termination of this
Agreement pursuant to Section 3 below shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares on
the date hereof.
(b) Subject Securities. The term "SUBJECT SECURITIES"
shall mean: (i) all securities of Parent (including all shares of Parent Common
Stock and all options, warrants and other rights to acquire shares of Parent
Common Stock beneficially owned by Stockholder as of the date of this Agreement;
and (ii) all additional securities of Parent (including all additional shares of
Parent Common Stock and all additional options, warrants and other rights to
acquire shares of Parent Common Stock) of which Stockholder acquires ownership
during the period from the date of this Agreement through the earlier of
termination of this Agreement pursuant to Section 3 below or the record date for
the meeting at which stockholders of Parent are asked to vote upon the issuance
of shares of Parent Common Stock in the Transactions.
(c) Transfer. Stockholder shall be deemed to have
effected a "TRANSFER" of a security if Stockholder directly or indirectly: (i)
sells, pledges, encumbers, transfers or disposes of, or grants an option with
respect to, such security or any interest in such security; or (ii) enters into
an agreement or commitment providing for the sale, pledge, encumbrance, transfer
or disposition of, or grant of an option with respect to, such security or any
interest therein.
1.2 Agreement to Vote Shares. Stockholder hereby covenants and
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (i) such date and time as the Healthvision Merger
shall become effective in accordance with the terms and provisions of the
Healthvision Merger Agreement (the "EFFECTIVE TIME") and (ii)
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termination of this Agreement in accordance with its terms, at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting)
of the stockholders of Parent, however called, or in connection with any written
consent of the stockholders of Parent, Stockholder will appear at the meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted or consented)
the Shares:
(1) in favor of the issuance of shares of Parent Common Stock
in the Eclipsys Merger and in the Healthvision Merger, and in favor of
the issuance of shares of Parent Common Stock and Warrants to purchase
Parent Common Stock, and the shares of Parent Common Stock issuable
pursuant to the terms of such Warrants pursuant to the Stock and Warrant
Agreements, and the other actions contemplated by the Eclipsys Merger
Agreement, Healthvision Merger Agreement and Stock and Warrant Agreements
and any actions required in furtherance thereof; and
(2) against approval of any action or agreement that would
result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Parent under the
Eclipsys Merger Agreement, Healthvision Merger Agreement or Stock and
Warrant Agreements, or of Stockholder under this Agreement.
Stockholder further agrees not to enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 1.2.
1.3. Transfer and Other Restrictions. (a) Prior to the
termination of this Agreement, Stockholder agrees not to, directly or
indirectly:
(i) offer for sale, Transfer or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, Transfer or other disposition of
any or all of the Subject Securities or any interest therein except as provided
in Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any of
the Subject Securities into a voting trust or enter into a voting agreement or
arrangement with respect to the Subject Securities except as provided in this
Agreement; or
(iii) take any other action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
(b) To the extent Stockholder is, as of the date hereof, party
to a contract or agreement that requires Stockholder to Transfer Subject
Securities to another person or entity
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(excluding a contract or agreement pledging Subject Securities to Parent),
Stockholder will not effect any such Transfer unless and until the transferee
agrees to be bound by and executes an agreement in the form of this Agreement
with respect to the Subject Securities to be Transferred. Nothing herein shall
prohibit Stockholder from exercising (in accordance with the terms of the option
or warrant, as applicable) any option or warrant Stockholder may hold; provided
that the securities acquired upon such exercise shall be deemed Subject
Securities and Shares hereunder.
(c) Until July 24, 2000, Stockholder will not, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Parent Common Stock or any securities convertible into or exchangeable or
exercisable for Parent Common Stock, or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Parent Common Stock,
whether any such swap or transaction is to be settled by delivery of Parent
Common Stock or other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) transactions relating to Parent Common Stock acquired by
Stockholder in open market transactions, (b) the transfer, if the undersigned is
an individual, to a member or members of his or her immediate family or to a
trust, the beneficiaries of which are exclusively the undersigned and/or a
member or members of his or her immediate family, either during his or her
lifetime or on death by will or intestacy, provided that the transferee or
transferees thereof agree in writing to be bound by the provisions of this
Agreement, or (c) the transfer, if the undersigned is a partnership, corporation
or trust, to partners (or retired partners who retire after the date hereof),
shareholders, or beneficiaries, as the case may be, of the undersigned as a
distribution, provided that the distributees thereof agree in writing to be
bound by the provisions of this Agreement. For the purposes of this paragraph,
"immediate family" shall mean spouse, lineal descendant, father, mother, brother
or sister of the transferor.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
(a) Stockholder is the record and beneficial owner of, or
Stockholder exercises voting power over, the shares of Parent capital stock
indicated on the final page of this Agreement, which, on and as of the date
hereof, are free and clear of any Encumbrances that would adversely affect the
ability of Stockholder to carry out the terms of this Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares beneficially
owned by such Stockholder and, except as set forth on such signature pages, the
Stockholder holds no options to purchase or rights to subscribe for or otherwise
acquire any securities of the Parent and has no other interest in or voting
rights with respect to any securities of Parent.
(b) Stockholder has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by such Stockholder and
the consummation by such Stockholder of the transactions contemplated by this
Agreement have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person). This
Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with
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its terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation which would result in the creation of any Encumbrance upon any of
the Shares owned by such Stockholder under, any provision of Stockholder's
charter documents (if applicable), applicable law or regulation or of any
agreement, judgment, injunction, order, decree, or other instrument binding on
such Stockholder or any Shares owned by such Stockholder. No consent, approval,
order or authorization of, or registration, declaration or filing with or
exemption by any Governmental Entity is required by or with respect to such
Stockholder in connection with the execution and delivery of this Agreement by
such Stockholder or the consummation by such Stockholder of the transactions
contemplated by this Agreement, except for applicable requirements, if any, of
Sections 13 and 16 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder. If this Agreement is being executed in a
representative or fiduciary capacity, the person signing this Agreement has full
power and authority to enter into and perform such Agreement.
3. TERMINATION
This Agreement shall terminate and shall have no further force or effect
as of the first to occur of (i) the Effective Time and (ii) such date and time
as the Eclipsys Merger Agreement, Healthvision Merger Agreement or the Stock and
Warrant Agreements shall have been validly terminated pursuant to the terms
thereof. Notwithstanding any other provision hereof, this Agreement shall
terminate in the event that either the Eclipsys Merger Agreement or the
Healthvision Merger Agreement is modified in a manner that is materially adverse
to Stockholder without Stockholder's consent.
4. MISCELLANEOUS
4.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other. Any purported
assignment in violation of this Section shall be void.
4.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
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4.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Eclipsys and/or Healthvision will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to Eclipsys and/or
Healthvision upon any such violation, Eclipsys and/or Healthvision shall have
the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Eclipsys and/or
Healthvision at law or in equity.
4.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given upon delivery either by
commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following address or facsimile numbers (or at such other address
or facsimile numbers for a party as shall be specified by like notice):
If to Eclipsys:
Eclipsys Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Healthvision:
HEALTHvision, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Stockholder, to the address for notice set forth on the last
page hereof.
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with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Any party hereto may by notice so given provide and change its address for
future notices hereunder. Notice shall conclusively be deemed to have been given
when personally delivered or when deposited in the mail in the manner set forth
above.
4.6 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the laws of the State of Delaware,
excluding that body of law relating to conflict of laws.
4.7 Entire Agreement. This Agreement constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
4.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.9 Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Parent Voting
Agreement to be executed by their duly authorized respective officers as of the
date first above written.
ECLIPSYS CORPORATION
By:
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Name:
Title:
HEALTHVISION, INC.
By:
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Name:
Title:
STOCKHOLDER:
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By:
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Name:
Title:
Stockholder's Address for Notice:
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Outstanding shares of Parent capital
stock beneficially owned by Stockholder:
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