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EXHIBIT 99.4
FORM OF VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
May 24, 2000, among VHA Inc., a Delaware corporation ("VHA"), University
HealthSystem Consortium, an Illinois corporation ("UHC"), and the undersigned
stockholder ("STOCKHOLDER") of Xxxxxxxx.xxx, Inc., a Delaware corporation
("PARENT").
RECITALS
A. Concurrently with the execution of this Agreement, Parent and VHA and
Parent and UHC are entering into respective Amended and Restated Common Stock
and Warrant Agreements pursuant to which Parent will issue to VHA and UHC,
respectively, shares of Parent Common Stock and warrants to purchase Parent
Common Stock (the "STOCK AND WARRANT AGREEMENTS"), in consideration for such
parties' entry into and continued performance under certain commercial
arrangements among such parties, Parent and others. The security issuances
contemplated by the Stock and Warrant Agreements are referred to herein as the
"TRANSACTIONS". Capitalized terms used herein and not defined herein shall have
the meanings given such terms in the Stock and Warrant Agreements.
B. 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.
C. As a material inducement for VHA and UHC to enter into the Stock and
Warrant Agreements, VHA and UHC desire Stockholder to agree, and Stockholder is
willing to agree, to vote the Shares (as defined below), and such other shares
of 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 that number of
issued and outstanding shares of Parent Common Stock set forth on the signature
page hereto 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.
(b) 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,
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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) the closing of the Transactions (the "CLOSING")
and (ii) 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
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 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 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 Shares or any interest therein except
as provided in Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any of
the Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares 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 Shares to
another person or entity (excluding a
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contract or agreement pledging Shares 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 Shares
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.
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.
(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 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 this Agreement.
3. TERMINATION
This Agreement shall terminate and shall have no further force or effect
as of the first to occur of (i) the Closing and (ii) such date and time as a
Stock and Warrant Agreement shall have been validly terminated pursuant to the
terms thereof.
4. MISCELLANEOUS
4.1 Severability. If any term, provision, covenant or
restriction of this
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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 any of
the parties without prior written consent of the others. 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.
4.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that VHA and UHC 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 VHA and UHC upon any such violation,
VHA and UHC shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to VHA
and UHC 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 addresses or facsimile numbers (or at such other
address or facsimile number for a party as shall be specified by like notice):
IF TO VHA: WITH A COPY TO:
VHA Inc. Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx Four Times Square
Irving, Texas 75039-5500 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Attn: Chief Financial Officer Attn: Xxxxx X. Xxxxxxxxx
IF TO UHC: WITH A COPY TO:
University HealthSystem Consortium XxXxxxxxx, Will & Xxxxx
0000 Xxxxxx Xxxx, Xxxxx 000 000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Attn: Executive Vice President Attn: Xxxxxxxx X. Xxxxxx
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed by their duly authorized respective officers as of the date first
above written.
VHA INC.
By:
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Name:
Title:
UNIVERSITY HEALTHSYSTEM CONSORTIUM
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 and
covered by this Agreement:
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