SHAREHOLDER AGREEMENT
---------------------
SHAREHOLDER AGREEMENT (this "Agreement"), dated as of
May 15, 2000 among Cerner Corporation, a Delaware corporation
("Cerner"), and the shareholders of CITATION Computer Systems,
Inc., a Missouri corporation ("CITATION"), named on Schedule I
hereto (individually, a "Shareholder" and collectively, the
"Shareholders").
WHEREAS, CITATION and Cerner Performance Logistics,
Inc., a Delaware corporation and a wholly-owned subsidiary of
Cerner ("Merger Sub"), propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (as amended from time
to time, the "Merger Agreement"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger
Agreement) with Cerner which provides, among other things, that
CITATION will merge with and into Merger Sub (the "Merger"); and
WHEREAS, as of the date hereof, each Shareholder owns
of record or beneficially the respective number of shares of
Common Stock set opposite such Shareholder's name on Schedule I
hereto; and
WHEREAS, as an essential condition to the willingness
of Cerner to enter into the Merger Agreement, Cerner has
requested that each Shareholder agree, and in order to induce
Cerner to enter into the Merger Agreement, each Shareholder has
agreed, to enter into this Agreement with respect to (i) all the
shares of Common Stock owned beneficially and of record by such
Shareholder as of the date hereof or of which such Shareholder
may hereafter acquire record or beneficial ownership (the
"Shares") and (ii) any other securities owned of record or
beneficially by such Shareholder as of the date hereof or of
which such Shareholder may hereafter acquire ownership of record
or beneficially which may be voted by or at the direction or on
behalf of the Shareholder at any meeting of CITATION shareholders
or with respect to which action taken without a meeting may be
authorized by or at the direction or on behalf of such
Shareholder by written consent (the "Other Securities").
NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants and agreements contained herein and
intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement.
---------------- Each Shareholder hereby
agrees that, with respect to the CITATION Shareholders Meeting and
any other meeting of CITATION shareholders or any action to be
taken by written consent, the Shareholder shall:
(a) appear in person or by proxy (or use its reasonable best
efforts to cause the holder of record on any applicable record
date to appear in person or by proxy) for the purpose of
obtaining a quorum at the CITATION Shareholders Meeting and at
any adjournment or postponement thereof;
(b) vote (or cause to be voted) the Shares and the Other
Securities (or, as applicable, shall execute or cause to be
executed written consents in respect of the Shares and the Other
Securities) in favor of the approval and adoption of the Merger
Agreement, the Merger and, any other transactions or matters
contemplated by the Merger Agreement, and any actions required in
furtherance thereof and hereof; and
(c) not encourage any holder of securities of CITATION to vote
against the approval and adoption of the Merger Agreement, the
Merger or any other transactions or matters contemplated by the
Merger Agreement, and not take any action, or permit any action
to be taken, that would reasonably be expected to impede,
interfere, or be inconsistent with, delay, postpone, discourage,
disparage or otherwise adversely affect, the Merger Agreement,
the Merger, this Agreement and any other transactions or matters
contemplated by the Merger Agreement, or a Shareholder's
obligations hereunder, including, but not limited to, the
obligations of each Shareholder to vote for the approval and
adoption of the Merger Agreement, the Merger and any other
transactions or matters contemplated by the Merger Agreement, and
to use its reasonable best efforts to consummate and make
effective the transactions contemplated by this Agreement,
provided that nothing in this Section 1.1 shall limit any
individual Shareholder who is a director of CITATION from
exercising or performing any of such Shareholder's rights or
duties solely in such Shareholder's capacity as a director of
CITATION.
SECTION 1.2 Irrevocable Proxy.
----------------- In order to ensure that the
voting agreement set forth in Section 1.1 and the other
obligations of each Shareholder hereunder will be carried out,
each Shareholder hereby grants an irrevocable proxy, coupled with
an interest, in the form attached hereto as Exhibit A (the
"Irrevocable Proxy"). Such Shareholder hereby revokes all other
proxies and powers of attorney with respect to the Shares and the
Other Securities that such Shareholder may have heretofore
appointed or granted that would prevent such Shareholder from
performing its obligations hereunder, and no subsequent proxy or
power of attorney shall be given or written consent executed (and
if given or executed, shall not be effective) by such Shareholder
with respect thereto. All authority herein conferred or agreed
to be conferred shall survive the death or incapacity of any
Shareholder and any obligation of such Shareholder under this
Agreement shall be binding upon the transferees, heirs, personal
representatives, successors and assigns of such Shareholder.
SECTION 1.3 Evaluation of Investment.
------------------------ Each Shareholder,
by reason of such Shareholder's knowledge and experience in
financial and business matters, is capable of evaluating the
merits and risks of the investment in the Cerner Common Stock
following the Merger, contemplated by the Merger Agreement.
SECTION 1.4 Documents Delivered.
------------------- Each Shareholder
acknowledges receipt of copies of the following documents:
(a) the Merger Agreement and all schedules and exhibits
thereto;
(b) Cerner's Annual report on Form 10-K for the fiscal
year ended January 1, 2000;
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(c) Cerner's Proxy Statement dated April 17, 2000;
(d) each report filed with the Securities and Exchange
Commission by Cerner on Forms 8-K and 10-Q since January 1,
2000; and
(e) any other information requested by any Shareholder
concerning an evaluation of an investment in Cerner Common Stock.
Each Shareholder also acknowledges that it possesses the
information relating to Cerner which such Shareholder deems
relevant to its investment in the Cerner Common Stock should the
Merger be consummated.
ARTICLE II
OPTION TO PURCHASE
SECTION 2.1 Grant of Option.
--------------- Each Shareholder hereby grants
to Cerner the right and option (the "Option") to purchase from
such Shareholder, at the times and on the terms and conditions
hereinafter set forth, all or part of the shares of Common Stock
set opposite such Shareholder's name on Schedule I hereto at the
purchase price determined as follows: (a) with respect to 90% of
such shares for which Cerner is exercising this Option, the
Merger Consideration set forth in Section 2.1(e)(i)(A) of the
Merger Agreement, and (b) with respect to 10% of such shares for
which Cerner is exercising this Option, the Merger Consideration
set forth in Section 2.1(e)(i)(B) of the Merger Agreement.
SECTION 2.2 Exercise of Option.
------------------ The Option granted
hereunder shall be exercisable in whole or in part from time to
time by delivery of the following by Cerner to the a Shareholder
of:
(a) Written notice of exercise signed by Cerner which
specifies the number of shares to be purchased; and
(b) Full payment for the shares, determined in
accordance with Section 2.1, with respect to which such Option
or portion thereof is thereby exercised.
SECTION 2.3 Deliver of Shares.
----------------- Exercises of this Option
shall be honored by the Shareholder delivering to Cerner, upon
receipt of the foregoing written notice and consideration, stock
certificates evidencing such shares, together with stock powers
executed by the Shareholder in blank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Each
--------------------------------------
Shareholder.
----------- Except as set forth on the disclosure letter
attached hereto, each Shareholder represents and warrants to
Cerner as follows:
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(a) Each Shareholder (if it is a corporation, general
or limited partnership, limited liability company or other
legal entity) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
or organization. Such Shareholder has the requisite power and
authority (and if a natural person, the legal capacity) to execute
and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
such Shareholder and no other proceedings on the part of such
Shareholder are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such
Shareholder and, assuming that this Agreement constitutes a valid
and binding agreement of Cerner, is a legal, valid and binding
obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in
effect, relating to or affecting the rights and remedies of
creditors generally, and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or a law) and to general principles
governing the duties of fiduciaries.
(b) The execution and delivery of this Agreement by such
Shareholder do not, and the performance of this Agreement by such
Shareholder will not conflict with, result in any breach of or
constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation
of, or require payment under, or result in the creation of any
Encumbrances (as defined below) on any of the assets of such
Shareholder pursuant to any contract or other instrument to which
such Shareholder is a party or by which such Shareholder or any
of such Shareholder's assets are bound, except for any thereof
that would not reasonably be expected to materially impair the
ability of such Shareholder to perform such Shareholder's
obligations hereunder or to consummate the transactions
contemplated hereby.
(c) The execution and delivery of this Agreement by such
Shareholder do not, and the performance of this Agreement by such
Shareholder will not, require such Shareholder to obtain any
consent, approval, authorization or permit of, or to make any
filing with or notification to, any Governmental Entity based on
any federal, state, local or foreign law, statute, ordinance,
rule, regulation, permit, injunction, writ, judgment, decree or
order (collectively, "Laws") of any Governmental Entity, except
(i) pursuant to the Exchange Act, the Securities Act and the HSR
Act; and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, could not reasonably be expected to materially
impair the ability of such Shareholder to perform such
Shareholder's obligations hereunder or to consummate the
transactions contemplated hereby.
(d) There is no suit, action, investigation or proceeding
pending or, to the knowledge of such Shareholder, threatened
against such Shareholder at law or in equity before or by any
Governmental Entity that would reasonably be expected to
materially impair the ability of such Shareholder to perform such
Shareholder's obligations hereunder or to consummate the
transactions contemplated hereby.
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(e) Such Shareholder owns beneficially and of record the shares
of Common Stock set forth opposite such Shareholder's name on
Schedule I hereto (the "Existing Shares"). Except as set forth
on Schedule I, the Existing Shares constitute all the shares of
Common Stock owned of record or beneficially by such Shareholder.
Except as set forth on Schedule I, such Shareholder has sole
voting power, sole power of disposition and all other Shareholder
rights with respect to all the Existing Shares, with no
restrictions, other than pursuant to applicable securities laws,
on such Shareholder's rights of disposition pertaining thereto.
Such Shareholder owns options or warrants to purchase or other
securities convertible or exchangeable into or exercisable for
the number of shares of such Common Stock set forth opposite such
Shareholder's name on Schedule I hereto (collectively, the
"Derivative Securities"). None of the Existing Shares or
Derivative Securities is subject to (i) any right of first
refusal or first offer, (ii) right to purchase, acquire or vote,
or (iii) proxy or power of attorney, except in the case of clause
(ii) or (iii) any rights created by this Agreement. Such
Shareholder has good and valid title to all the Existing Shares,
free and clear of all Encumbrances (other than any Encumbrance
created by this Agreement).
(f) Such Shareholder (i) is not a party to any agreement,
arrangement or understanding with respect to voting, holding or
disposing of any Shares, Other Securities, shares of Common Stock
or the shares of Cerner Common Stock, either as of the date
hereof or at any time in the future, and (ii) is not a member of
a "group" within the meaning of Section 13(d)(3) of the Exchange
Act and Rule 13d-5(b) thereunder, with respect to Shares, Other
Securities, shares of Cerner Common Stock, except for this
Agreement.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
SECTION 4.1 No Solicitation.
--------------- Each Shareholder and its
Representatives shall immediately cease and cause to be
terminated all existing discussions or negotiations to which the
Shareholder or its officers, directors, employees, agents,
accountants, counsel, advisors or consultants (collectively,
"Representatives") are a part relating to an Acquisition Proposal
for CITATION with any parties conducted heretofore. From the
date hereof until the Effective Time or, if earlier, the
termination of the Merger Agreement pursuant to Article IX
thereof, each Shareholder shall not, whether directly or
indirectly through Representatives or other intermediaries, and
will instruct such Shareholder's Representatives not to, whether
directly or indirectly through Representatives or other
intermediaries, initiate, solicit or encourage (including by way
of furnishing information or assistance), or take any other
action to facilitate, any inquiries or the making of any proposal
regarding a potential Acquisition Proposal for CITATION or any
transaction referred to in Section 6.2, or enter into or maintain
discussions or negotiate with any person regarding, in
furtherance of or relating to such inquiries or the making of a
proposal regarding or consummation of an Acquisition Proposal for
CITATION, or agree to or endorse any Acquisition Proposal for
CITATION, or disclose any non-public information relating to
CITATION to any person that has made or may reasonably be
expected to make a proposal regarding an Acquisition Proposal for
CITATION or that has advised CITATION that it is or may be
interested in making a proposal regarding an Acquisition Proposal for
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CITATION, or authorize or permit any of such Shareholder's
Representatives to take any such action, and each Shareholder
shall use such Shareholder's reasonable best efforts to cause
such Shareholder's Representatives not to take any such action,
and each Shareholder shall promptly notify Cerner if any such
inquiries or proposals are made regarding a potential Acquisition
Proposal for CITATION, and each Shareholder shall promptly inform
Cerner as to the terms and details of any such inquiry or
proposal (including the identity of the true party in interest
making such inquiry or proposal) and, if in writing, promptly
deliver or cause to be delivered to Cerner a copy of such inquiry
or proposal, and each Shareholder shall keep Cerner informed, on
a current basis, of the status, terms and details of any such
inquiries or such proposals. Anything in this Section 4.1 to the
contrary notwithstanding, nothing in this Section 4.1 shall limit
any individual Shareholder who is also a director of the
CITATION, from exercising or performing any of such Shareholder's
rights or duties solely in such Shareholder's capacity as a
director of the CITATION.
Further Assurances.
------------------ Each Shareholder agrees to use
such Shareholder's reasonable best efforts to take, or
cause to be taken, all appropriate action, 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, including, but not
limited to, the Merger or the transactions contemplated
by the Merger Agreement. If any further action is
necessary or desirable to carry out the purposes of
this Agreement, such Shareholder shall use such
Shareholder's reasonable best efforts to take all such
action as promptly as practicable.
ARTICLE V
SURVIVAL
SECTION 5.1 Survival.
-------- All provisions of this Agreement shall
survive any termination of the Merger Agreement and shall remain
in full force and effect, except as otherwise provided in
Sections 5.2 and 5.3.
SECTION 5.2 Termination.
----------- Articles I, II, III and IV shall
terminate upon any termination of the Merger Agreement in
accordance with Article IX thereof.
SECTION 5.3 Effect of Termination.
--------------------- In the event that any part
of this Agreement shall terminate pursuant to this Article V,
such part of this Agreement shall thereafter be void and the
parties hereto shall have no further rights or obligations with
respect thereto, except as a result of any prior breach thereof.
ARTICLE VI
DEFINITIONS
SECTION 6.1 Definitions.
----------- For purposes of this Agreement:
(a) "Beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined
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pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
Securities beneficially owned by one Person shall include securities
beneficially owned by all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d)(3)
of the Exchange Act and Rule 13d-5(b) thereunder.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity.
(c) "Encumbrance" means any pledge, security interest, lien,
claim, encumbrance, mortgage, charge, hypothecation, option,
right of first refusal or offer, community property right, other
marital right, preemptive right, voting agreement, voting trust,
proxy, power of attorney, escrow, option, forfeiture, penalty,
action at law or in equity, security agreement, shareholder
agreement or other agreement, arrangement, contract, commitment,
understanding or obligation, or any other restriction,
qualification or limitation on the use, transfer, right to vote,
right to dissent, and seek appraisal, receipt of income or other
exercise of any attribute of ownership, except for those which do
not or could not reasonably be expected to, individually or in
the aggregate, materially impair the ability of such Shareholder
to perform such Shareholder's obligations hereunder or to
consummate the transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 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
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 terms of this Agreement remain as originally contemplated to
the fullest extent possible.
SECTION 7.2 Entire Agreement.
---------------- This Agreement constitutes the
entire agreement between Cerner and each Shareholder with respect
to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, between Cerner and
such Shareholder with respect to the subject matter hereof.
SECTION 7.3 Counterparts.
------------ This Agreement may be executed and
delivered (including by facsimile transmission) 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 instrument.
SECTION 7.4 Assignment.
---------- Neither this Agreement nor any rights
or interests hereunder shall be assigned by any Shareholder
(whether by operation of law or otherwise)
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without the prior written consent of Cerner, except that any
Shareholder may transfer the Shares or Other Securities subject
to the Voting Agreement set forth in Section 1.1 hereof and the
Irrevocable Proxy attached hereto as Exhibit A. Cerner may assign,
in its sole discretion, its rights hereunder to any direct or indirect
wholly owned subsidiary or affiliate of Cerner, but no such
assignment shall relieve Cerner of its obligations hereunder if
such assignee does not perform such obligations.
SECTION 7.5 Amendments.
---------- This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed
by the parties hereto.
SECTION 7.6 Notices.
------- All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall
be given (and shall be deemed to have been duly received if so
given) by hand delivery, facsimile transmission, mail (registered
or certified mail, postage prepaid, return receipt requested), or
courier service providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the
following addresses:
If to Cerner and/or Merger Sub, to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
with copies to:
Cerner Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
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If to Shareholder, in accordance with the
information set forth on Schedule I hereto.
with copies to:
CITATION, Inc.
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President
Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
or to such other address as the person to whom notice is given
may have previously furnished the others in writing in the manner
set forth above.
SECTION 7.7 No Third Party Beneficiaries.
---------------------------- This Agreement is
not intended to be for the benefit of, and shall not be enforceable by,
any person or entity not a party hereto.
SECTION 7.8 Specific Performance.
-------------------- Each of the parties hereto
acknowledges that a breach by it of any agreement contained in
this Agreement may cause the other party to sustain damage for
which it may not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party may be entitled
to the remedy of specific performance of such agreement and
injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
SECTION 7.9 Remedies Cumulative.
------------------- All rights, powers and
remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
SECTION 7.10 No Waiver.
--------- The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement
or otherwise available in respect hereof at law or in equity, or
to insist upon strict compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
SECTION 7.11 Governing Law.
------------- This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Missouri, without giving effect to the principles of conflicts of
law thereof.
SECTION 7.12 Waiver of Jury Trial.
-------------------- EACH OF CERNER AND EACH
SHAREHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
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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 OR SUCH SHAREHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
SECTION 7.13 Descriptive Headings.
-------------------- The descriptive headings
used herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
CERNER CORPORATION
By:_/s/Xxxx Burke_____________
Name: Xxxx Xxxxx
Title: Vice President
_/s/Xxxxxxx X. Neece_______
Shareholder
_/s/J. Xxxxxx Copper_______
Shareholder
_/s/Xxxxx Marcus___________
Shareholder
_/s/Xxxxx X. Pieroni_______
Shareholder
CFB VENTURE FUND I, INC.
---------------------------
Shareholder
By:_/s/Xxxxx X. O'Donnell__
Chairman and CEO
_/s/Xxxx X. Brown__________
Shareholder
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SCHEDULE 1 - SHAREHOLDER AGREEMENT
Other
Name of Securities
Shareholder Shares Owned Owned Address for Notices
----------- ------------ ----- -------------------
J. Xxxxxx Copper 310,511 205,000 0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxx 107,000 135,000 0000 Xxx Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Xxxxx X. X'Xxxxxxx 643,229 12,000 00000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxx 23,968 22,000 00 Xxxxxxxxxx
Xxxxx, XX 00000-0000
Xxxx X. Xxxxx 36,164 22,000 00000 Xxxxxxxxxxx Xxxxx Xxxxx
Xxxx & Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx 12,418 15,000 000 Xxx Xxxxxx
Xxxxxxx, XX 00000
_______________________________
1 Xx. X'Xxxxxxx beneficially owns 636,229 shares of Company
Common Stock through CFB Venture Fund I, Inc. ("CFB"), a
subsidiary of Commerce Bancshares, Inc. ("CBI"). Xx.
X'Xxxxxxx is the Chairman of CFB. Xx. X'Xxxxxxx may be deemed
to share voting and investment power over those shares with
CBI.
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