EXHIBIT 4
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VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of February 15, 2000 (this "Agreement"), is
made and entered into by and among Healtheon/WebMD Corporation, a Delaware
corporation ("Healteon/WebMD"), Tech Acquisition Corporation, a Washington
corporation and wholly owned subsidiary of Healtheon/WebMD ("Merger Corp"),
OnHealth Network Company, a Washington corporation ("Company"), and certain
stockholders and optionholders of Company who have executed a signature page
hereto (each a "Stockholder").
PREAMBLE
The Stockholder is a stockholder (or optionholder) of Company and desires
that Healteon/WebMD, Merger Corp, and Company enter into an Agreement and Plan
of Merger dated the date hereof (as the same may be amended or supplemented, the
"Merger Agreement") with respect to the merger of Merger Corp and Company (the
"Merger"). The Stockholder is executing this Agreement as an inducement to
Healteon/WebMD and Company to enter into and execute, and to cause Merger Corp
to enter into and execute, the Merger Agreement.
All capitalized terms used herein which are not defined herein shall have
the same meanings as ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Healteon/WebMD, Merger Corp and Company of the Merger Agreement and the mutual
covenants, conditions and agreements contained herein and therein, the parties
agree as follows:
1. Representations and Warranties. (a) The Stockholder severally and not
jointly represents and warrants to Healteon/WebMD, Merger Corp and Company as
follows:
(i) As of the date hereof, the Stockholder is the record owner of
shares of or options to purchase the Company Common Stock set forth on
Schedule 1 to this Agreement (the "Company Common Stock"). Except for
the Company Common Stock set forth on Schedule 1 to this Agreement,
the Stockholder is not the record owner of any shares of Company
Common Stock. The Company Common Stock set forth on Schedule 1 to this
Agreement and any other Company Common Stock that the Stockholder may
acquire in the future are referred to herein as the "Shares." This
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder,
enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors rights
generally or the availability of equitable remedies, and the execution
and delivery of this Agreement will not violate or result in a default
under any agreement to which the Stockholder is a party. Neither the
execution and delivery of this Agreement nor the consummation by the
Stockholder of the transactions contemplated hereby will (A) violate,
or require any consent, approval or notice under any provision of any
judgment, order, decree, statute, law, rule or regulation applicable
to the Stockholder or the Stockholder's Shares or (B) constitute a
violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which the Stockholder is a party or by
which the Stockholder is bound.
(ii) Except as set forth on Schedule 1, such Stockholder's Shares
and the certificates representing such Shares are now and at all times
during the term hereof will be held by such Stockholder, free and
clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other
encumbrances whatsoever that would interfere with the voting of the
Shares or the granting of any proxy, except for any such encumbrances
or proxies arising hereunder.
(iii) The Stockholder understands and acknowledges that
Healteon/WebMD, Merger Corp and Company are entering the Merger
Agreement in reliance upon the Stockholder's execution and delivery of
this Agreement. The Stockholder acknowledges that the irrevocable
proxy set forth in Section 4 is granted in consideration for the
execution and delivery of the Merger Agreement by Healtheon/WebMD,
Merger Corp and Company.
(b) Each of Healtheon/WebMD, Merger Corp and Company represents and
warrants to Stockholder that this Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
such corporation, enforceable in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally or the availability of
equitable remedies, and the execution and delivery of this Agreement will
not violate or result in a default under any agreement to which such
corporation is a party.
2. Voting Agreement. The Stockholder severally agrees with, and covenants
to, Healtheon/WebMD, Merger Corp and Company that, during the term of this
Agreement, at the Company Stockholders Meeting and all other meetings of
Stockholders, or at any adjournment thereof or in any other circumstances upon
which a vote, consent, agreement or other approval is sought, the Stockholder
shall vote (or cause to be voted) the Stockholder's Shares (and all shares of
Company Common Stock for which such Stockholder has been granted a proxy) and
shall otherwise consent or agree as follows: (a) vote in favor of the Merger and
the adoption of the Merger
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Agreement and each of the transactions contemplated thereby, and (b) agree to
take any other action reasonably requested by Healtheon/WebMD and Merger Corp
necessary or appropriate to cause the conditions to the Merger to be satisfied.
Stockholder, as a holder of Company Common Stock, shall be present in person or
by proxy at all meetings of stockholders of Company so that all Shares are
counted for purposes of determining the presence of a quorum at such meetings.
3. Covenants. The Stockholder severally agrees with, and covenants to,
Healtheon/WebMD, Merger Corp and Company that prior to the termination of this
Agreement, the Stockholder shall not (i) without the prior written consent of
Healtheon/WebMD (which shall not be unreasonably withheld if the transferee
executes this Agreement and is an affiliate of Company at the time of the
transfer) transfer (which term shall include, without limitation, for the
purposes of this Agreement, any sale, gift, pledge, or consent to any transfer
of) any or all of the Stockholder's Shares or any interest therein; (ii) enter
into any contract, option or other agreement or understanding with respect to
any transfer of any or all of such Shares or any interest therein; (iii) grant
any proxy, power of attorney or other authorization in or with respect to such
Shares; or (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints,
Xxxxxxx X. Xxxxxx, Chief Executive Officer of Healtheon/WebMD, W. Xxxxxxx
Xxxx, Chairman and Chief Operating Officer of Healtheon/WebMD, Xxxxxx
Xxxxxxxx, Vice President of Healtheon/WebMD, and Xxxx Xxxxxxxx, Vice
President of Healtheon/WebMD, or any one of them, in their respective
capacities as officers of Healtheon/WebMD, and any individual who shall
hereafter succeed to any such office of Healtheon/WebMD, and each of them
individually, the Stockholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Stockholder,
to vote the Stockholder's Shares at any meeting of stockholders of Company
(including without limitation the Company Stockholders Meeting), or at any
adjournment thereof or in any other circumstances upon which a vote,
agreement, consent or other approval is sought, on the matters set forth in
Section 2 hereof and to request in writing in accordance with the Bylaws of
Company, or other appropriate manner, that the President or Secretary of
Company call a special meeting of the stockholders of Company to vote on
the matters set forth in Section 2 hereof. Such attorney-in-fact may
evidence the taking of any action, giving of any consent or the voting of
the Shares by the execution of any document or instrument for such purpose
in the name of the Stockholder.
(b) The Stockholder represents that any proxies given in respect of
the Stockholder's Shares prior to the granting of the proxy set forth in
this Agreement are not irrevocable, and that any such proxies are hereby
revoked.
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(c) The Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully
do or cause to be done by virtue hereof. SUCH IRREVOCABLE PROXY IS EXECUTED
AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION
23B.07.220 OF THE WBCA.
5. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation the Stockholder's successors or assigns. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of Company, or the acquisition of additional shares of
Company Capital Stock or other voting securities of Company by any Stockholder,
the number of Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Company Capital Stock or other voting securities of
Company issued to or acquired by the Stockholder.
6. Further Assurances. The Stockholder shall, upon request of
Healtheon/WebMD and Merger Corp execute and deliver any additional documents and
take such further actions as may reasonably be deemed by Healtheon/WebMD and
Merger Corp to be necessary or desirable to carry out the provisions hereof and
to vest the power to vote such Stockholder's Shares as contemplated by Section 4
in Healtheon/WebMD and the other irrevocable proxies described therein at the
expense of Healtheon/WebMD.
7. Termination. This Agreement, and all rights and obligations of the
parties hereunder; including without limitation, the proxy set forth in Section
4, shall terminate upon the first to occur of (i) the Effective Time of the
Merger, (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms or (iii) October 31, 2000.
8. Miscellaneous.
(a) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(b) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
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agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Washington, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
(d) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other parties. Any assignment in violation of the
foregoing shall be void.
(e) The Stockholder agrees that irreparable damage would occur and
that Healtheon/WebMD, Merger Corp or Company would not have any adequate
remedy at law in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Healtheon/WebMD, Merger
Corp or Company shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in
addition to any other remedy to which they are entitled at law or in
equity.
(f) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, (i) be held
by a court of competent jurisdiction to be invalid, void or unenforceable
or (ii) would preclude the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended, such term, provision, covenant or restriction shall be modified
or voided, as may be necessary to achieve the intent of the parties to the
extent possible, and the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent
permitted by law.
(g) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
[Signatures Appear on the Next Page]
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IN WITNESS WHEREOF, the undersigned parties have executed and
delivered this Voting Agreement as of the day and year first above written.
HEALTHEON/WEBMD CORPORATION
By: /s/ W. Xxxxxxx Xxxxxx
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Title: Executive Vice President
TECH ACQUISITION CORPORATION
By: /s/ W. Xxxxxxx Xxxxxx
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Title: Vice President
ONHEALTH NETWORK COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Chief Executive Officer
"STOCKHOLDER"
Xxx Xxxxxxx Funds, Inc.
/s/ Xxxxxxx X. Xxx Xxxxxxx
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Print Name: Xxxxxxx X. Xxx Xxxxxxx
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President
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SCHEDULE 1
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Stockholder's Name Number of Shares Held
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Xxx Xxxxxxx Funds, Inc. 9,823,650
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