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EXHIBIT 9.1
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VOTING AGREEMENT
by
STOCKHOLDERS OF
MEDICAL MANAGER CORPORATION
and
HEALTHEON/WEBMD
CORPORATION
Dated as of February 13, 2000
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 13, 2000 (this
"Agreement"), by the parties identified on Schedule A hereto (each, a
"Stockholder" and collectively, the "Stockholders") to and for the benefit of
Healtheon/WebMD Corporation, a Delaware corporation ("Parent").
WHEREAS, as of the date hereof, each Stockholder owns of
record and beneficially, is the beneficial owner, or has the power to vote or
direct the voting of the number of shares of common stock (the "Company Common
Stock"), par value $.01 per share, of Medical Manager Corporation, a Delaware
corporation (the "Company"), set forth opposite such Stockholder's name on
Schedule A hereto (such shares, together with any shares of Company Common Stock
acquired by the Stockholders prior to the termination of this Agreement, being
referred to herein as the "Shares");
WHEREAS, concurrently with the execution of this Agreement,
Parent and the Company are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement"; capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement), pursuant to which, upon the terms and subject to the
conditions thereof, the Company will be merged with and into Parent (the
"Merger"); and
WHEREAS, as a condition to the willingness of Parent and the
Company to enter into the Merger Agreement, Parent has requested the
Stockholders to agree, and in order to induce Parent to enter into the Merger
Agreement, the Stockholders are willing to agree, to vote in favor of adopting
the Merger Agreement and approving the Merger, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereby agree as follows:
Section 1. Voting of Shares. Until the termination of this
Agreement in accordance with the terms hereof, each Stockholder hereby agrees
that, at the Company Stockholders' Meeting or any other meeting of the
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, such Stockholder will vote all of
its respective Shares (a) in favor of the approval and adoption of the Merger
Agreement and the Merger and the other transactions contemplated by the Merger
Agreement, (b) against any Company Acquisition Proposal and any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which would result in any of the conditions to the Merger Agreement
not being fulfilled, and (c) in favor of any other matter necessary to the
consummation of the transactions contemplated by the Merger Agreement and
considered and voted upon by the stockholders of the Company. Each Stockholder
acknowledges receipt and review of a copy of the Merger Agreement.
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Section 2. Proxy. Each Stockholder, by this Agreement, does
hereby constitute and appoint Parent, or any nominee of Parent, with full power
of substitution, as the Stockholder's irrevocable proxy and attorney-in-fact to
vote its Shares as indicated in Section 1. Each Stockholder intends this proxy
to be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy and hereby revokes any proxy previously granted by him with
respect to its Shares.
Section 3. Transfer of Shares. Each Stockholder represents and
warrants that it has no present intention of taking action to, prior to the
termination of this Agreement in accordance with the terms hereof, and shall
not, directly or indirectly, (a) sell, assign, transfer (including by operation
of Law), pledge, encumber or otherwise dispose of any of its Shares, (b) deposit
any of its Shares into a voting trust or enter into a voting agreement or
arrangement with respect to its Shares or grant any proxy or power of attorney
with respect thereto which is inconsistent with this Agreement, or (c) enter
into any contract, option or other arrangement or undertaking with respect to
the direct or indirect sale, assignment, transfer (including by operation of
Law) or other disposition of any Shares, except in each case with the prior
written consent of Parent, which shall not be unreasonably withheld or delayed
if the percentage of outstanding voting common stock (on both an actual
outstanding and fully diluted, fully converted basis) entitled to vote on the
Merger covered by voting agreements substantially similar to this Agreement is
not reduced as a result of such sale, assignment, transfer or other disposition.
Section 4. Representations and Warranties of Stockholder. Each
Stockholder hereby represents and warrants to Parent, severally and not jointly,
with respect to itself and its ownership of its Shares as follows:
(a) Such Stockholder has all legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby.
(b) Such Stockholder is the record or beneficial owner of its
Shares and such Shares are owned free and clear of any liens, claims,
charges, encumbrances or voting agreements and commitments of every
kind, other than this Agreement. Other than with respect to options to
purchase Company Common Stock granted under the Company's stock option
plans, agreements and arrangements, such Stockholder does not own or
hold any rights to acquire any additional Company Common Stock or other
securities of the Company or any interest therein or any voting rights
with respect to any additional Company Common Stock or any other
securities of the Company.
(c) This Agreement has been duly executed and delivered by
such Stockholder.
(d) This Agreement constitutes the valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance
with its terms except as such enforceability may be limited by
bankruptcy, insolvency or other similar
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requirements of Law affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 5. Termination. This Agreement shall terminate upon
the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement) or (ii) the termination of the Merger Agreement in accordance with
the terms thereof; provided that the provisions of Sections 6 through 14
(inclusive) of this Agreement shall survive any termination of this Agreement;
and provided further that no such termination shall relieve any party of
liability for a willful breach hereof prior to termination.
Section 6. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
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 at law or in equity.
Section 7. Notices. (a) All notices and other communications
given or made pursuant to this Agreement shall be in writing and shall be sent
by an overnight courier service that provides proof of receipt, mailed by
registered or certified mail (postage prepaid, return receipt requested) or
telecopied to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to Parent:
400 The Lenox Building
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
Bank of America Corporate Center
Suite 2600
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: H. Xxxxx Xxxx III
C. Xxxx Xxxxx
if to the Stockholders:
at the address set forth opposite such Stockholder's
name on Schedule A
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with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx O'X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Notices of changes of address shall be effective only upon
receipt.
Section 8. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 9. Entire Agreement. This Agreement 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.
Section 10. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
Section 11. Assignment; Binding Effect; Benefit. (a) Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties.
(b) This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and permitted
assigns, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 12. Governing Law; Forum. (a) This Agreement shall be
governed by, and construed in accordance with, the Laws of the State of Delaware
applicable to contracts executed in and to be performed in that state.
(b) Each of the parties hereto irrevocably agrees that all
legal actions or proceedings with respect to this Agreement shall be brought and
determined in the courts of the
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State of Delaware or in the United States District Court for the State of
Delaware, and each of the parties hereto hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect to its property,
generally and unconditionally, to the jurisdiction of the aforesaid courts. Each
of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure to serve process in accordance with applicable Law, (ii)
that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts and (iii) to the fullest
extent permitted by applicable Law, that (A) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (B) the venue of such suit,
action or proceeding is improper and (C) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
Section 13. Counterparts. This Agreement may be executed and
delivered in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed and delivered shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 14. WAIVER OF JURY TRIAL. EACH OF PARENT AND EACH
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT AND THE
STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxx Xxxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxx Xxxxxx
---------------------------------
Xxx Xxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
-------------------------------
By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxx Xxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
------------------------------
By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxx Xxxx
---------------------------------
Xxxx Xxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxx Xxxxxxx
----------------------------------
Xxx Xxxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxxx Xxxx
----------------------------------
Xxxxxxx Xxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
------------------------------
By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxx Xxxx
----------------------------------
Xxxx Xxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xx Xxxxx
-----------------------------------
Xx Xxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
------------------------------
By: Xxxx Xxxxxxxx
Its: Executive Vice President
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
Agreed and Acknowledged:
HEALTHEON/WEBMD
CORPORATION
/s/ Xxxx Xxxxxxxx
------------------------------
By: Xxxx Xxxxxxxx
Its: Executive Vice President
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SCHEDULE A
STOCKHOLDERS
---------------------------------------- ----------------------------------------- ---------------------------------
Number of Shares of
Company Common Stock
Owned of
Name of Stockholder Address Record and Beneficially
---------------------------------------- ----------------------------------------- ---------------------------------
1. Xxxxxx Xxxxxxxx c/o Medical Manager Corporation 46,116
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
2. Xxxxxx Xxxxxxxxx c/o Medical Manager Corporation 44,716
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
3. Xxx Xxxxxx c/o Medical Manager Corporation 93,114
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
4. Xxxxxxxx Xxxxx c/o Medical Manager Corporation 0
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
5. Xxxx Xxxx c/o Medical Manager Corporation 322,258
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
6. Xxxxxxx Xxxxxxxx c/o Medical Manager Corporation 0
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
7. Xxxxx Xxxxx c/o Medical Manager Corporation 4,333
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
8. Xxx Xxxxxxx c/o Medical Manager Corporation 114,799
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
9. Xxxxxxx Xxxxxx c/o Medical Manager Corporation 350,001
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
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---------------------------------------- ----------------------------------------- ---------------------------------
10. Xxxxxxx Xxxx c/o Medical Manager Corporation 35,391
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
11. Xxxxx Xxxxxx c/o Medical Manager Corporation 86,647
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
12. Xxxx Xxxx c/o Medical Manager Corporation 0
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
13. Xxxxxx Xxxxxxxxx c/o Medical Manager Corporation 189,339(1)
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
14. Xxxxxxx Xxxxxx c/o Medical Manager Corporation 3,681,250
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
15. Xxxx X. Xxxxxxx c/o Medical Manager Corporation 8,998
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
16. Xx Xxxx c/o Medical Manager Corporation 116,888
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
17. Xxxxxx Xxxxx c/o Medical Manager Corporation 5,500,272(2)
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
---------------------------------------- ----------------------------------------- ---------------------------------
-------------------------
(1) Includes 15,000 shares held by the Sark Foundation
(2) Includes 192,794 shares held by the Rose Foundation and 28,500 shares held
by the Synetic Foundation and excludes 188,883 shares to be distributed to
unaffiliated persons pursuant to Section 15(b) of the S.N. Investors L.P.
Partnership Agreement dated as of November 30, 1994.
