Exhibit 3
EXECUTION COPY
VOTING AGREEMENT
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VOTING AGREEMENT, dated as of October 10, 2005 (this "Agreement"),
between Global Healthcare Exchange, LLC, a Delaware limited liability company
("Parent"), and VHA Inc., a Delaware corporation (the "Stockholder").
RECITALS
WHEREAS, Neoforma, Inc. is a corporation organized under the laws
of the State of Delaware (the "Company"). The Stockholder "beneficially owns"
(as such term is defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) the number of shares of common stock, par
value $0.001 per share, of the Company (the "Common Stock") set forth opposite
the Stockholder's name on Exhibit A hereto (such shares of Common Stock,
together with all other shares of capital stock of the Company acquired by the
Stockholder after the date hereof and during the term of this Agreement, being
collectively referred to herein as the "Subject Shares"); and
WHEREAS, pursuant to Section 6.1 of the Amended and Restated Common
Stock and Warrant Agreement, dated as of May 24, 2000, between the Company and
the Stockholder (as amended pursuant to the Amendment to Amended and Restated
Common Stock and Warrant Agreement, dated as of October 18, 2000, the "First
Purchase Agreement"), the Stockholder is permitted to vote the Subject Shares
with respect to the Merger and the Merger Agreement in its sole discretion; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Leapfrog Merger Corporation, a corporation organized under
the laws of the State of Delaware ("Merger Sub"), and the Company are entering
into an Agreement and Plan of Merger (as the same may from time to time be
modified, supplemented or restated, the "Merger Agreement") providing for the
merger of Merger Sub with and into the Company, with the Company surviving the
Merger (the "Merger") upon the terms and subject to the conditions set forth
therein; and
WHEREAS, as a condition to entering into the Merger Agreement,
Parent has required that the Stockholder enter into this Agreement, and the
Stockholder desires to enter into this Agreement to induce Parent to enter into
the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
Section 1. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to Parent as follows:
(a) Authority. The Stockholder is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby
and has duly taken all corporate action necessary for the due authorization,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of Parent, constitutes a valid and
binding obligation of the Stockholder enforceable in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting creditors' rights generally from time to time in effect
and to general equitable principles.
(b) No Conflicts. (i) No filing with any governmental body
or authority, and no authorization, consent or approval of any other person is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby (except
for applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended) and (ii) none of the execution and delivery of this Agreement by the
Stockholder, the consummation by the Stockholder of the transactions
contemplated hereby or compliance by the Stockholder with any of the provisions
hereof shall (A) conflict with or result in any breach of the organizational
documents of the Stockholder, (B) result in, or give rise to, a violation or
breach of or a default under (with or without notice or lapse of time, or both)
any of the terms of any material contract, understanding, agreement or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or any of its Subject Shares may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to the Stockholder or any of its Subject Shares, except for any of
the foregoing as could not reasonably be expected to materially impair the
Stockholder's ability to perform its obligations under this Agreement.
(c) The Subject Shares. Exhibit A sets forth the
Stockholder's name and the number of Subject Shares over which the Stockholder
has record and beneficial ownership as of the date hereof. As of the date
hereof, the Stockholder is the record or beneficial owner of the Subject Shares
denoted as being owned by the Stockholder on Exhibit A and has the sole power
to vote (or cause to be voted) such Subject Shares with respect to the Merger
and the Merger Agreement. Except as set forth on such Exhibit A, neither the
Stockholder nor any affiliate of the Stockholder owns or holds any right to
acquire any additional shares of any class of capital stock of the Company or
other securities of the Company or any interest therein or any voting rights
with respect thereto.
(d) Title. The Stockholder has good and valid title to the
Subject Shares denoted as being owned by the Stockholder on Exhibit A, free and
clear of any and all pledges, mortgages, liens, charges, proxies, voting
agreements, encumbrances, adverse claims, options, security interests and
demands of any nature or kind whatsoever, other than those created by the First
Purchase Agreement, the Common Stock Purchase Agreement, dated as of January
25, 2001, between the Company and the Stockholder, as amended April 11, 2003
(the "Second Purchase Agreement"), this Agreement or as could not reasonably be
expected to impair the Stockholder's ability to perform its obligations under
this Agreement.
(e) Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Merger Sub to enter
into, the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement.
(f) Litigation. To the knowledge of the Stockholder, there
is no action, proceeding or investigation pending or threatened against the
Stockholder that questions the validity of this Agreement or any action taken
or to be taken by the Stockholder in connection with this Agreement.
Section 2. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholder as follows:
(a) Authority. Parent is duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, has
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby and has duly
taken all corporate action necessary for the due authorization, execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Parent and, assuming this Agreement constitutes a valid and
binding obligation of the Stockholder, constitutes a valid and binding
obligation of Parent enforceable in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally from time to time in effect and to
general equitable principles.
(b) No Conflicts. (i) No filing with any governmental body
or authority, and no authorization, consent or approval of any other person is
necessary for the execution of this Agreement by Parent and the consummation by
Parent of the transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by Parent, the consummation by Parent of the
transactions contemplated hereby or compliance by Parent with any of the
provisions hereof shall (A) conflict with or result in any breach of the
organizational documents of Parent, (B) result in, or give rise to, a violation
or breach of or a default under (with or without notice or lapse of time, or
both) any of the terms of any material contract, understanding, agreement or
other instrument or obligation to which Parent is a party or by which Parent or
any of its assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to Parent, except for
any of the foregoing as could not reasonably be expected to materially impair
Parent's ability to perform its obligations under this Agreement.
(c) Reliance by the Stockholder. Parent understands and
acknowledges that the Stockholder is entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Parent.
(d) Litigation. To the knowledge of Parent, there is no
action, proceeding or investigation pending or threatened against Parent that
questions the validity of this Agreement or any action taken or to be taken by
Parent in connection with this Agreement.
Section 3. Covenants of the Stockholder. Until the termination of
this Agreement in accordance with Section 4, the Stockholder, in its capacity
as such, agrees as follows:
(a) At any meeting of stockholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought from the stockholders of the Company, the Stockholder shall
vote (or cause to be voted) the Subject Shares in favor of the approval of the
Merger and the approval and adoption of the Merger Agreement. Any such vote
shall be cast or consent shall be given in accordance with such procedures
relating thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent. The Stockholder agrees not to enter into any agreement
or commitment with any person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Section 3(a).
(b) Except as the Stockholder is otherwise obligated under
the First Purchase Agreement and the Second Purchase Agreement (subject to the
Waiver, dated as of the date hereof, among the Stockholder, University
HealthSystem Consortium and the Company), at any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which
the Stockholder's vote, consent or other approval is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company
or any of its Subsidiaries or any other Acquisition Proposal or (ii) any
amendment of the Company's certificate of incorporation or bylaws or other
proposal or transaction involving the Company or any of its Subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement or change in any manner
the voting rights of any class of capital stock of the Company. The Stockholder
further agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) The Stockholder hereby appoints Xxxx Xxxxxxx and Xxxx
Xxxx, and each of them individually, as the Stockholder's proxy and
attorney-in-fact, with full power of substitution and resubstitution, solely to
vote or act by written consent prior to the termination of this Agreement with
respect the Subject Shares in accordance with Section 3(a). This proxy is given
to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder shall promptly cause a copy of this Agreement to be
deposited with the Company at its principal place of business. The Stockholder
shall take such further action or execute such other instruments as may be
reasonably necessary to effectuate the intent of this proxy. The proxy and
power of attorney granted pursuant to this Section 3(c) by the Stockholder
shall be irrevocable during the term of this Agreement, shall be deemed to be
coupled with an interest sufficient in law to support an irrevocable proxy and
shall revoke any and all prior proxies granted by the Stockholder inconsistent
with the proxy hereby granted. The power of attorney granted by the Stockholder
herein is a durable power of attorney and shall survive the dissolution or
bankruptcy of the Stockholder. The proxy and power of attorney granted
hereunder shall terminate upon the termination of this Agreement. The
Stockholder represents that any proxies heretofore given in respect of the
Stockholder's Subject Shares are not irrevocable and that any such proxies are
hereby revoked.
(d) Except as provided in Sections 3(a) and 3(c), the
Stockholder agrees not to, directly or indirectly, (i) sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (collectively, a "Transfer")
or enter into any agreement, option or other arrangement with respect to, or
consent to, a Transfer of, any or all of the Subject Shares to any person, that
is inconsistent with its obligations under this Agreement, or (ii) grant any
proxies, deposit any Subject Shares into any voting trust or enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, with
respect to any of the Subject Shares, in each case that is inconsistent with
this Agreement.
(e) The Stockholder hereby represents that it is not now
engaged in discussions or negotiations with any party other than Parent with
respect to any Acquisition Proposal. The Stockholder shall not, nor shall the
Stockholder authorize any investment banker, consultant, attorney or other
advisor or representative of the Stockholder to, directly or indirectly (i)
solicit, initiate or knowingly encourage, induce or facilitate the making,
submission or announcement of any Acquisition Proposal, (ii) furnish any
information (including non-public information) regarding the Company to any
Person in connection with or in response to an Acquisition Proposal, (iii)
engage in discussions or negotiations with any Person with respect to any
Acquisition Proposal or (iv) enter into any Contract contemplating or providing
for any Acquisition Transaction; provided, however, that this Section 3(e)
shall not prohibit Stockholder from furnishing any information (including
non-public information) regarding the Company to, or entering into discussions
or negotiations with, any Person at any such time as the Company is engaging in
such activities with such Person in compliance with the terms and conditions of
the Merger Agreement. Any such furnishing of information, discussions or
negotiations shall be conducted in accordance with Section 4.3 of the Merger
Agreement.
(f) At the request of Parent, the Stockholder shall use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with Parent in doing,
all things reasonably necessary, proper or advisable to carry out the intent
and purposes of this Agreement.
Section 4. Termination. This Agreement shall terminate (i) upon the
earlier of (A) the Effective Time, (B) the date of the termination of the
Merger Agreement and (C) the effective date of any amendment to any pricing
term of the Merger Agreement in a manner adverse to the Stockholder or any
amendment to or waiver of any other term or condition of the Merger Agreement
in a manner materially adverse to the Stockholder, in each case without the
prior written consent of the Stockholder or (ii) at any time upon notice by
Parent to the Stockholder. All representations, warranties, covenants and
agreements set forth herein shall terminate and have no further effect as of
the termination of this Agreement pursuant to this Section 4. Notwithstanding
the foregoing, Sections 7 through 19, inclusive, of this Agreement shall
survive the termination of this Agreement and no party shall be relieved from
any liability, by reason of any such termination, for a breach by such party of
this Agreement prior to such termination.
Section 5. Appraisal Rights. To the extent permitted by applicable
law, the Stockholder hereby waives any rights of appraisal or rights to dissent
from the Merger that it may have under applicable law.
Section 6. Publication. The Stockholder hereby authorizes Parent
and the Company to publish and disclose in the press release announcing the
Merger and in the Proxy Statement (including any and all documents and
schedules filed with the Securities and Exchange Commission relating thereto)
its identity and ownership of shares of Common Stock as each are set forth on
Exhibit A attached hereto and the nature of the Stockholder's commitments,
arrangements and understandings pursuant to this Agreement. Parent and/or the
Company will allow the Stockholder a reasonable opportunity to review and
comment on any language in the press release announcing the Merger and in the
Proxy Statement (including any and all documents and schedules filed with the
Securities and Exchange Commission relating thereto) that refers to the
Stockholder.
Section 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to any principles or rules of conflicts of laws thereof.
Section 8. Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties hereto irrevocably and
unconditionally (i) agrees that any legal suit, action or proceeding brought by
any party hereto arising out of or based upon this Agreement or the
transactions contemplated hereby may be brought in the courts of the State of
Delaware or the United States District Court for the District of Delaware
(each, a "Delaware Court"), (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding brought in any Delaware Court, and any
claim that any such action or proceeding brought in any Delaware Court has been
brought in an inconvenient forum, and (iii) submits to the non-exclusive
jurisdiction of Delaware Courts in any suit, action or proceeding. Each of the
parties agrees that a judgment in any suit, action or proceeding brought in a
Delaware Court shall be conclusive and binding upon it and may be enforced in
any other courts to whose jurisdiction it is or may be subject, by suit upon
such judgment.
(b) EACH OF THE PARTIES AGREES AND ACKNOWLEDGES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS
AGREEMENT.
Section 9. Specific Performance. The Stockholder acknowledges and
agrees that (i) the covenants, obligations and agreements of the Stockholder
contained in this Agreement relate to special, unique and extraordinary
matters, (ii) Parent is and will be relying on such covenants in connection
with entering into the Merger Agreement and the performance of its obligations
under the Merger Agreement, and (iii) a violation of any of the terms of such
covenants, obligations or agreements may cause Parent irreparable injury for
which adequate remedies are not available at law. Therefore, the Stockholder
agrees that Parent, in addition to any other remedies at law or in equity it
may have, shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain the Stockholder from
committing any violation of such covenants, obligations or agreements.
Section 10. Amendment, Waivers, etc. Neither this Agreement nor any
term hereof may be amended or otherwise modified other than by an instrument in
writing signed by Parent and the Stockholder. No provision of this Agreement
may be waived, discharged or terminated other than by an instrument in writing
signed by the party against whom the enforcement of such waiver, discharge or
termination is sought.
Section 11. Assignment; No Third Party Beneficiaries. This
Agreement shall not be assignable or otherwise transferable by a party without
the prior consent of the other party, and any attempt to so assign or otherwise
transfer this Agreement without such consent shall be void and of no effect.
This Agreement shall be binding upon the respective successors and permitted
assigns or transferees of the parties hereto. Nothing in this Agreement shall
be construed as giving any person, other than the parties hereto and their
successors and permitted assigns or transferees, any right, remedy or claim
under or in respect of this Agreement or any provision hereof. No failure or
delay by any party in exercising any right, power or privilege under this
Agreement 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.
Section 12. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in this Agreement shall be in
writing and shall be deemed validly given upon personal delivery or one day
after being sent by overnight courier service or by telecopy (so long as for
notices or other communications sent by telecopy, the transmitting telecopy
machine records electronic conformation of the due transmission of the notice),
at the following address or telecopy number, or at such other address or
telecopy number as a party may designate to the other parties:
If to Parent, to:
Global Healthcare Exchange, LLC
Xxxxx 000
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Chief Executive Officer and Chief Financial Officer
Facsimile: (000) 000-0000
with copies to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to the Stockholder, to:
VHA Inc.
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Section 13. Severability. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, it shall be adjusted rather
than voided, if possible, in order to achieve the intent of the parties hereto
to the maximum extent possible. In any event, the invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.
Section 14. Integration. This Agreement (together with the Merger
Agreement solely to the extent referenced herein), including Exhibit A hereto,
constitutes the full and entire understanding and agreement of the parties with
respect to the subject matter of this Agreement and supersedes any and all
prior understandings or agreements relating to the subject matter of this
Agreement.
Section 15. Mutual Drafting. Each party hereto has participated in
the drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
Section 16. Section Headings. The section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 17. Counterparts. This Agreement may be executed in one or
more counterparts (including by facsimile), each of which shall be an original
and all of which shall constitute one and the same instrument.
Section 18. Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
Section 19. Definitions. References in this Agreement to
"affiliate" shall mean, as to any person, any other person which, directly or
indirectly, controls, or is controlled by, or is under common control with,
such person. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies of a person, whether through the
ownership of securities or partnership or other ownership interests, by
contract or otherwise. References in the Agreement to "person" shall mean an
individual, a corporation, a partnership, an association, a trust or any other
entity, group (as such term is used in Section 13 of the Exchange Act) or
organization, including, without limitation, a governmental body or authority.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and date first above written.
GLOBAL HEALTHCARE EXCHANGE, LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
VHA INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Exhibit A
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STOCKHOLDER
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Name Number of Subject Shares
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VHA Inc. 8,611,217
