EXHIBIT 9.1
VOTING AGREEMENT
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THIS VOTING AGREEMENT, dated as of January ___, 1999 (this "Agreement"), is
made and entered into by and among WebMD, Inc., a Georgia corporation ("WebMD")
and each party who has executed a signature page hereto (each a "Shareholder").
Preamble
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The Shareholder is a shareholder of WebMD as set forth on Schedule 1 to
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this Agreement. The Shareholder is executing this Agreement as an inducement to
HBO & Company of Georgia, a Georgia corporation ("HBOC"), to consent to the
filing by WebMD of the Designations of Preferences, Limitations and Relative
Rights of Series B Preferred Stock in connection with the acquisition by WebMD
of Sapient Health Network, Inc. ("SHN") and Direct Medical Knowledge, Inc.
("DMK") and the issuance of shares in connection therewith and in certain other
potential private offerings, which issuances by WebMD will benefit such
Shareholder.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder severally and not
jointly represents and warrants to WebMD as follows:
(a) As of the date hereof, the Shareholder is the record owner of the WebMD
capital stock set forth beside his name on Schedule 1 to this Agreement or the
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record holder of shares of capital stock of SHN or DMK that will be converted
into the WebMD capital stock set forth beside his name on Schedule 1 to this
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Agreement upon the closing of the mergers (the "Mergers") of SHN and DMK into a
subsidiary of WebMD (in each such case, such Shareholder's "Shares").
(b) Such Shareholder's Shares and the certificates representing such Shares
are now and at all times during the term hereof will be held by such
Shareholder, 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.
2. Voting Agreement. The Shareholder severally agrees with, and covenants
to, WebMD that, during the term of this Agreement, at any meeting of
Shareholders of WebMD at which such Shareholder has the right to vote, or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval is sought and such Shareholder has the right to vote, the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of the adoption of the amendment to the Designation of the Preferences,
Limitations and Relative Rights of the Series A Preferred Stock of WebMD set
forth on Exhibit A hereto (the "Amendment"). Shareholder, as a holder of WebMD
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capital stock, shall be present in person or by proxy at all meetings of
shareholders of WebMD so that all Shares are counted for purposes of determining
the presence of a quorum at such meetings.
3. Covenants. The Shareholder severally agrees with, and covenants to,
WebMD that prior to the termination of this Agreement, unless all of the
Shareholder's Shares governed hereby continue to be subject to the provisions of
this Agreement or another Agreement identical in terms, the Shareholder shall
not (i) 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 Shareholder'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. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder'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 Shareholder's successors or assigns. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of WebMD, or the acquisition of additional shares of
WebMD capital stock or other voting securities of WebMD by any Shareholder, 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 WebMD capital stock or other voting securities of WebMD
issued to or acquired by the Shareholder.
5. Termination. This Agreement, and all rights and obligations of the
parties hereunder shall terminate immediately following the approval by the
shareholders of WebMD of the Amendment in accordance with the Georgia Business
Corporation Code. In addition, notwithstanding the foregoing, in the event the
merger agreement with respect to either of the Mergers is terminated in
accordance with its terms without the closing of such merger, this Agreement
shall terminate with respect to a holder of the shares of either DMK or SHN
that was the subject of such merger agreement.
6. Shareholder Meeting. WebMD shall call a shareholders' meeting to be
held as soon as practicable for the purpose of approving and adopting the
Amendment.
7. 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 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 Georgia, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
(d) Except as provided in Section 4 above, 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 WebMD. Any assignment in violation of the
foregoing shall be void.
(e) The Shareholder agrees that irreparable damage would occur and that
WebMD 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 WebMD
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder 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) 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.
(g) HBOC is expressly intended to be a third party beneficiary to this
Agreement and this Agreement may not be amended or the provisions hereof waived
without HBOC's written consent.
[SIGNATURES ON FOLLOWING 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.
WEBMD, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Chief Executive Officer
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"SHAREHOLDER"
/s/ Each Shareholder Listed on Schedule 1
except K. Xxxxxx Xxxxxxxx and Xxxxx Xxxxxx
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[Shareholder Name]
By:_________________________________________
Title (if applicable):______________________
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SCHEDULE 1
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Shareholder Name Class Number of Shares Held
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Xxxxxxx X. Xxxxxx Common Stock 3,000,000
Series D Common 866,666
Xxxx Partners Series B Common 1,400,000
Series D Common 100,000
Xxxxxx X. Xxxxx Series C Common 1,000,000
J. Xxx Xxxxx Series D Common 350,000
Xxxxx Holdings I, L.P. Series D Common 150,000
K. Xxxxxx Xxxxxxxx Series D Common 50,000
U. Xxxxxxx Xxxxx, Xx. Series D Common 200,000
X. Xxxxxx Xxxxxx Series D Common 509,305
Xxxxxx X. Xxxxx Series D Common 100,000
Premiere Technologies, Inc. Series E Common 2,100,000
Eucalyptus, Ltd. Series B Preferred 222,079
H&Q Direct Medical Knowledge
Investors, LP Series B Preferred 141,832
HealthMagic, Inc. Series B Preferred 70,916
P. Xxxx Xxxxxx Series B Preferred 104,288
Sprout Capital VII, L.P. Series B Preferred
and affiliates
Asset Management Associates 1996, Series B Preferred
L.P. and affiliates
Xxxxx Xxxx Series B Preferred
Xxxxxxx X. Xxxxx Series B Preferred
Xxxxxxxxxx Xxxxxxxx Series B Preferred
Xxxxx Xxxxxx Series B Preferred
EXHIBIT A TO
VOTING AGREEMENT
ARTICLES OF AMENDMENT TO AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF WEBMD, INC.
In accordance with Section 14-2-1006 of the Georgia Business Corporation
Code (the "Code"), WebMD, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the Code, DOES HEREBY CERTIFY:
1. The name of the Corporation is WebMD, Inc.
2. The following resolution setting forth amendments to the Corporation's
Articles of Incorporation has been duly adopted by the Board of
Directors:
RESOLVED, THAT EXHIBIT A TO THE ARTICLES OF AMENDMENT TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION DATED AUGUST 24, 1998
SETTING FORTH THE PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF THE
SERIES A PREFERRED STOCK IS HEREBY AMENDED AS FOLLOWS:
(A) BY ADDING THE FOLLOWING PROVISIONS TO THE END OF THE FIRST
FULL PARAGRAPH OF SECTION (B) THEREOF:
"A Liquidation shall also be deemed to have occurred upon (i) the
acquisition of the Corporation by another entity by means of any
transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results
in the Corporation's shareholders immediately prior to such
transaction not holding (by virtue of such shares or securities issued
solely with respect thereto) at least 50% of the voting power of the
surviving or continuing entity, or (ii) a sale, conveyance or
disposition of all or substantially all of the assets of the
Corporation unless the Corporation's shareholders immediately prior to
such transaction will, as a result of such sale, conveyance or
disposition hold (by virtue of securities issued as consideration for
such sale, conveyance or disposition) at least 50% of the voting power
of the purchasing entity, or (iii) the effectuation by the Corporation
or its shareholders of a transaction or series of related transactions
that results in the Corporation's shareholders immediately prior to
such transaction not holding (by virtue of such shares or securities
issued solely with respect thereto) at least 50% of the voting power
of the Corporation."
and
(B) BY ADDING THE FOLLOWING LANGUAGE TO FOLLOW THE LAST
"PROVIDED, HOWEVER" CLAUSE IN SECTION (C) THEREOF:
"; provided, further, that the voting rights described herein
with respect to a particular holder shall not become effective until
the Corporation and the particular holder of the security shall have
made any filings required under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx"); provided, further, that if
filings under the HSR Act are required, then before such voting rights
shall become effective, either (1) the parties shall have been granted
early termination of the waiting period under the HSR Act, or (2) the
applicable waiting period shall have expired without any agency having
sought injunctive relief with respect to the effectiveness of such
voting rights."
3. The foregoing resolution containing the amendment was duly adopted on
_________, by the Corporation's shareholders in accordance with the
provisions of Section 14-2-1003 of the Code.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be signed
by the undersigned duly authorized officer, this ____th day of ________, 1999.
WEBMD, INC.
By:_____________________________________
_____________________________________
_____________________________________
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