Exhibit 1
WAIVER
WAIVER dated January 7, 2005, among NEOFORMA, INC. (formerly known as
XXXXXXXX.XXX, INC.), a Delaware corporation, (the "Company"), VHA INC., a
Delaware corporation ("VHA") and UNIVERSITY HEALTHSYSTEM CONSORTIUM, an
Illinois corporation ("UHC").
W I T N E S S E T H:
WHEREAS, the Company and VHA are parties to the Amended and Restated
VHA Common Stock and Warrant Agreement dated as of May 24, 2000 (as amended
pursuant to the Amendment to Amended and Restated Common Stock and Warrant
Agreement dated as of October 18, 2000, the "VHA Agreement");
WHEREAS, the Company and UHC are parties to the Amended and Restated
UHC Common Stock and Warrant Agreement dated as of May 24, 2000 (as amended
pursuant to the Amendment to Amended and Restated Common Stock and Warrant
Agreement dated as of January 25, 2001, the "UHC Agreement"); and
WHEREAS, the Company is engaged in the process of evaluating strategic
alternatives for the Company and its business.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and intending to be legally bound hereby, the
parties agree as follows:
Section 1. Waiver. The Company hereby waives the provisions of Section
6.2(i) of the VHA Agreement and Section 6.2(i) of the UHC Agreement for the
period commencing on the date hereof and ending on April 7, 2005 for the sole
purpose of permitting VHA, UHC and their respective affiliates to enter into,
and perform their respective obligations under, any agreement, arrangement or
understanding relating to the joint participation of VHA, UHC and any of their
respective affiliates in the evaluation of strategic alternatives for the
Company (including making proposals for the acquisition of Rights in Parent
Stock (as defined in the VHA Agreement and the UHC Agreement) and assets of the
Company) (such activities, collectively, the "Joint Participation"), in each
case solely to the extent the execution of, or the performance under, any such
agreement, arrangement, understanding or joint participation would result in
VHA being deemed the beneficial owner of any Rights in Parent Stock owned by
UHC for purposes of Section 6.2(i) of the VHA Agreement and/or UHC being deemed
the beneficial owner of any Rights in Parent Stock owned by VHA for purposes of
Section 6.2(i) of the UHC Agreement.
Section 2. Anti-Takeover Protections. The Company represents and
warrants to VHA and UHC that the Board of Directors of the Company has adopted
a binding resolution that neither VHA nor UHC will be deemed an "interested
stockholder" under Section 203 General Corporation Law of the State of Delaware
("DGCL") and that the restrictions contained in Section 203 of DGCL applicable
to "business combinations" (as defined in Section 203 of DGCL) shall not apply
to VHA and UHC, solely to the extent that in connection with, or as a result
of, the Joint Participation, VHA is deemed to be the owner of any shares of
capital stock of the Company currently owned by UHC or UHC is deemed to be the
owner of any shares of capital stock of the Company currently owned by VHA. As
used in this Section 2, the term "owner" (including the term "owned") has the
meaning assigned thereto in Section 203 of DGCL.
Section 3. Certain Agreements With Employees.
(a) The Company represents and warrants to VHA and UHC that each of
Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxx and the
other employees of the Company that have entered into an amendment to their
respective employment agreements with the Company to the effect described in
the Company's current report on Form 8-K filed with the Securities and Exchange
Commission on December 17, 2004 (the "Company Report"), have agreed with the
Company that the Joint Participation shall not constitute a "change of control"
under such employment agreements, as so amended (each, an "Employee Waiver").
(b) The Company agrees and covenants that without the consent of VHA
and UHC, the Company shall not enter into any employment agreement containing,
or amend any of its existing employment agreements to include, "change of
control" provisions similar or comparable to those described in the Company
Report, unless concurrently with entering into or amending any such employment
agreement, each employee of the Company that is a party to such employment
agreement or amendment thereto and the Company agree that that the Joint
Participation shall not constitute a "change of control" for purposes of any
such employment agreement.
(c) The Company agrees and covenants that without the consent of VHA
and UHC, the Company shall not agree or consent to any amendment to, or
revocation or withdrawal of, any Employee Waiver or any agreement of any
employee of the Company contemplated by Section 3(b) regarding the
non-applicability of "change of control" provisions.
Section 4. Status of Agreements. Except as expressly set forth herein,
no provision or term of the VHA Agreement or the UHC Agreement is hereby
waived, modified, amended or supplemented, and all such provisions and terms,
as in effect on the date hereof, are hereby ratified and shall remain in full
force and effect.
Section 5. Amendments; Waivers. This Waiver may not be modified or
amended except by a written instrument signed by authorized representatives of
each party and referring specifically to this Waiver. Any term, provision or
condition of this Waiver may be waived in writing at any time by the party
which is entitled to the benefit thereof.
Section 6. Counterparts. This Waiver may be executed in counterparts,
which together shall be considered one and the same agreement and each of which
shall be deemed an original.
Section 7. Governing Law. This Waiver shall be governed and construed
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and performed entirely within Delaware, without
reference to principles of conflicts of laws or choice of law.
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IN WITNESS WHEREOF, each of the parties has executed this Waiver on
the date first written above.
NEOFORMA, INC. (formerly known as
XXXXXXXX.XXX, INC.)
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Financial Officer
VHA INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
UNIVERSITY HEALTHSYSTEM CONSORTIUM
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
