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EXHIBIT 5
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of February 21, 1999 between Oscar
Acquisition Corporation, a Delaware corporation ("BUYER"), and Xxxxxx Xxxx
Ventures ("STOCKHOLDER").
WHEREAS, in order to induce Buyer and Science Applications
International Corporation, a Delaware corporation ("PARENT"), to enter into an
agreement and plan of merger (the "MERGER AGREEMENT") with Oacis Healthcare
Holdings Corp., a Delaware corporation (the "COMPANY"), Buyer has required that
Stockholder, and Stockholder has agreed to, enter into this Agreement; and
WHEREAS, the Merger Agreement provides, among other things, upon the
terms and subject to the conditions thereof, for the acquisition by Buyer of all
the outstanding shares of Common Stock, par value $0.01 per share, of the
Company (the "COMPANY COMMON STOCK") through (a) a tender offer (the "OFFER")
for all shares of Company Common Stock for $4.45 per share net to the sellers
thereof in cash (the "PER SHARE AMOUNT") and (b) a second-step merger pursuant
to which Buyer will merge with the Company (the "MERGER") and all outstanding
shares of Company Common Stock other than shares of Company Common Stock held by
Parent or any directly or indirectly wholly owned subsidiary of Parent or shares
of Company Common Stock held in the treasury of the Company will be converted
into the right to receive the Per Share Amount in cash; and
WHEREAS, as of the date hereof, Stockholder owns (both beneficially and
of record) 819,216 shares of Company Common Stock.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO TENDER; VOTING AGREEMENT; GRANT OF PROXY
SECTION 1.01. Agreement to Tender. Stockholder hereby irrevocably and
unconditionally agrees to validly tender (and not withdraw) or cause to be
validly tendered (and not withdrawn) pursuant to and in accordance with the
terms of the Offer all of the shares of capital stock of the Company that
Stockholder beneficially owns as of the date hereof as well as any additional
shares of capital stock of the Company that Stockholder may beneficially own,
whether acquired by purchase, exercise of options or otherwise, at any time
after the date hereof and
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prior to the expiration of the Offer, as the expiration of the Offer may be
extended from time to time (the "SHARES"). Within five business days after the
commencement of the Offer, Stockholder shall deliver to the depositary
designated in the Offer (i) a letter of transmittal with respect to the Shares
complying with the terms of the Offer, (ii) certificates representing all of the
Shares and (iii) all other documents or instruments required to be delivered
pursuant to the terms of the Offer.
SECTION 1.02. Voting Agreement. (a) Stockholder hereby irrevocably and
unconditionally agrees to vote or cause to be voted all Shares that such
Stockholder is entitled to vote at the time of any vote of the stockholders of
the Company where such matters arise (i) in favor of the approval and adoption
of the Merger Agreement and in favor of the transactions contemplated thereby
and (ii) against any (A) Acquisition Proposal (other than the Merger), (B)
reorganization, recapitalization, liquidation or winding up of the Company or
any other extraordinary transaction involving the Company, (C) corporate action
the consummation of which would frustrate the purposes, or prevent or delay the
consummation, of the transactions contemplated by the Merger Agreement or (D)
other matter relating to, or in connection with, any of the matters referred to
in clause (A), (B) or (C) above.
(b) If any stockholder vote in respect of the Merger Agreement or any
of the transactions contemplated by the Merger Agreement is taken by written
consent, the provisions of this Agreement imposing obligations in respect of or
in connection with any vote of stockholders shall apply mutatis mutandis to such
action by written consent.
SECTION 1.03. Irrevocable Proxy. Stockholder hereby irrevocably and
unconditionally revokes any and all previous proxies granted with respect to the
Shares. By entering into this Agreement, Stockholder hereby irrevocably and
unconditionally grants a proxy appointing Buyer as such Stockholder's
attorney-in-fact and proxy, with full power of substitution, for and in such
Stockholder's name, to vote, express, consent or dissent, or otherwise to
utilize such voting power in the manner contemplated by Section 1.02 above as
Buyer or its proxy or substitute shall, in Buyer's sole discretion, deem proper
with respect to the Shares. The proxy granted by Stockholder pursuant to this
Article 1 is irrevocable and is granted in consideration of Buyer entering into
this Agreement and the Merger Agreement and incurring certain related fees and
expenses. The proxy granted by Stockholder shall be revoked upon termination of
this Agreement in accordance with its terms. Stockholder shall use its best
effort to cause any record owner of Shares to grant to Buyer a proxy to the same
effect as that contained herein. Stockholder shall perform such further acts and
execute
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such further documents as may be required to vest in Buyer the sole power to
vote the Shares during the term of the proxy granted herein.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to Buyer that:
SECTION 2.01. Corporate Authorization; Binding Effect. Stockholder has
all requisite corporate power and corporate authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by Stockholder of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Stockholder. This Agreement has been duly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally and by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 2.02. Non-Contravention; Governmental Authorization. (a) The
execution, delivery and performance by Stockholder of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (i)
contravene or conflict with the certificate of incorporation or bylaws or other
organizational document of such Stockholder, (ii) contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to such Stockholder,
(iii) require any consent or other action by any Person under, constitute a
default under, or give rise to a right of termination, cancellation or
acceleration of any right or obligation or to a loss of any benefit to which
such Stockholder is entitled under any provision of any agreement, contract or
other instrument binding on such Stockholder or (iv) result in the creation or
imposition of any Lien on any asset of such Stockholder.
(b) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except for
applicable
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requirements, if any, of the Exchange Act and the HSR Act and the rules and
regulations thereunder.
SECTION 2.03. Ownership of Shares. Stockholder is the sole, true,
lawful, beneficial and record owner of 819,216 Shares free and clear of any Lien
and any other limitation or restriction (including any restriction on the right
to vote or otherwise dispose of the Shares). Upon delivery of the Shares and
payment of the purchase price therefor, Buyer will receive good and marketable
title to the Shares free and clear of any pledge, lien, security interest,
charge, claim, equity, option, proxy, voting restriction or encumbrance of any
kind. None of the Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares.
SECTION 2.04. Total Shares. Except for the Shares referred to in 2.03,
Stockholder does not beneficially own any (i) shares of capital stock or voting
securities of the Company, (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company or
(iii) options or other rights to acquire from the Company any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company.
SECTION 2.05. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Buyer or the Company
in respect of this Agreement based upon any arrangement or agreement made by or
on behalf of Stockholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stockholder:
SECTION 3.01. Corporate Authorization; Binding Effect. Buyer has all
requisite corporate power and corporate authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Buyer. This Agreement has been duly executed and delivered by
Buyer and constitutes a valid and binding agreement of Buyer, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws
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relating to or affecting creditors generally and by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
ARTICLE 4
COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees that:
SECTION 4.01. No Proxies for, Encumbrances or Transfers of Shares.
Except pursuant to the terms of this Agreement, Stockholder shall not, without
the prior written consent of Buyer, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Shares or any options, warrants or other rights to
acquire Company Common Stock or (ii) sell, assign, transfer, encumber, mortgage,
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance, mortgage or other disposition of, any Shares or any
options, warrants or other rights to acquire Company Common Stock during the
term of this Agreement. Stockholder shall not seek or solicit any such sale,
assignment, transfer, encumbrance, mortgage, or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify
Buyer promptly, and to provide all details requested by Buyer, if such
Stockholder shall be approached or solicited, directly or indirectly, by any
Person with respect to any of the foregoing.
SECTION 4.02. Other Offers. From the date hereof until the termination
hereof, Stockholder and the officers, directors, employees or other agents of
Stockholder will not, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Acquisition Proposal or (ii) engage in negotiations
with, or disclose any nonpublic information relating to the Company or any
Subsidiary or afford access to the properties, books or records of the Company
or any Subsidiary to, any Person. Stockholder will promptly (and in no event
later than 24 hours after receipt of the relevant Acquisition Proposal) notify
(which notice shall be provided orally and in writing and shall identify the
Person making the relevant Acquisition Proposal and set forth the material terms
thereof) Buyer after (i) such Stockholder has received any Acquisition Proposal,
(ii) such Stockholder has been advised that any Person is considering making an
Acquisition Proposal, or (iii) such Stockholder has received any request for
nonpublic information relating to the Company or any Subsidiary, or for access
to the properties, books
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or records of the Company or any Subsidiary, by any Person. Stockholder will
keep Buyer fully informed of the status and details of any such Acquisition
Proposal or request. Stockholder shall, and shall cause its directors, officers,
employees, financial advisors and other agents or representatives to, cease
immediately and cause to be terminated all activities, discussions or
negotiations, if any, with any Persons conducted heretofore with respect to any
Acquisition Proposal. The provisions of this Section 4.02 shall not impose any
additional limitations upon the ability of Stockholder to exercise its fiduciary
duties as a director of the Company under applicable law.
SECTION 4.03. Action in Stockholder Capacity Only. Stockholder makes no
agreement or understanding herein as director or officer of the Company.
Stockholder signs solely in his capacity as a recordholder and beneficial owner
of the Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of the Company.
SECTION 4.04. Appraisal Rights. Stockholder agrees not to exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Shares
which may arise with respect to the Merger.
SECTION 4.05. Board of Directors. Stockholder agrees to take all
necessary action in order to cause all of the directors who are affiliated with
Stockholder to resign as directors of the Company upon consummation of the
Offer.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Anti-dilution Adjustments. In the event of any change in
the number of Shares owned by Stockholder by reason of any stock dividend,
split-up, recapitalization, merger or other change in the corporate or capital
structure of the Company, the number of Shares and the Per Share Amount shall be
appropriately adjusted, and Buyer shall be entitled to receive any non-cash
distributions made in respect of any Shares purchased hereunder.
SECTION 5.02. Entire Agreement. This Agreement constitutes the entire
agreement between Buyer and Stockholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Buyer and Stockholder with respect to the subject matter hereof.
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SECTION 5.03. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto, except that Buyer may transfer or
assign its rights and obligations to any affiliate of Buyer.
SECTION 5.04. Survival of Representations and Warranties. The
representations and warranties and agreements contained in this Agreement shall
for a period of one year after the delivery of and payment for the Shares.
SECTION 5.05. Further Assurances. Buyer and Stockholder will each
execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use its reasonable best efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations, to consummate and
make effective the transactions contemplated by this Agreement.
SECTION 5.06. Amendments; Termination. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective. This Agreement shall terminate on the earlier to occur of the
consummation of the Merger and the date which is 18 months after the date
hereof.
SECTION 5.07. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 5.08. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
SECTION 5.09. Counterparts; Effectiveness; Third Party. 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. This Agreement shall become effective on the date hereof. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
SECTION 5.10. Severability. If any term, provision or covenant of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions and
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covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 5.11. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 5.12. Defined Terms. (a) Capitalized terms used but not
separately defined herein shall have the respective meanings set forth in the
Merger Agreement.
(b) For purposes of the Agreement, the term "beneficially own" shall
have the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
(c) For purposes of this Agreement, the term "MERGER AGREEMENT"
includes the Merger Agreement, as the same may be modified or amended from time
to time; provided that no such amendment or modification amends or modifies the
Merger Agreement in a manner such that the Merger Agreement, as so amended or
modified, is less favorable to Stockholder in any material respect than is the
Merger Agreement in effect on the date hereof.
(d) For purposes of this Agreement, the term "OFFER" includes the
Offer, as the same may be modified or amended from time to time; provided that
no such amendment or modification amends or modifies the Offer in a manner such
that the Offer, as so amended or modified, is less favorable to Stockholder in
any material respect than is the Offer in effect before such amendment or
modification.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OSCAR ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: President
XXXXXX XXXX VENTURES, A California
Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Managing Director of the
General Partner
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