EXHIBIT 9.1
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,
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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 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.
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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.
(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
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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 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.
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(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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXX XXXXXXX FUNDS, INC.
/S/ XXXXXXX X. XXX XXXXXXX
-----------------------------------
Print Name: XXXXXXX X. XXX XXXXXXX
-----------------------
President
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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.
EALTHEON/WEBMD CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXX X. XXXXX
/S/ XXX X. XXXXX
------------------------------------
Print Name: XXX X. XXXXX
63
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXXX X. XXXXXXXXXX
/S/ XXXXX X. XXXXXXXXXX
-----------------------------------
Print Name: XXXXX X. XXXXXXXXXX
64
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXXXXX X. XXXXXX
/S/ XXXXXXX X. XXXXXX
------------------------------------
Print Name: XXXXXXX X. XXXXXX
65
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXXXXX XXXXXXX
/S/ XXXXXXX XXXXXXX
------------------------------------
Print Name: XXXXXXX XXXXXXX
66
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXXXX X. XXXXXXX
/S/ XXXXXX X. XXXXXXX
---------------------------------
Print Name: XXXXXX X. XXXXXXX
67
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXX XXXXXXXXX
/S/ XXX XXXXXXXXX
-----------------------------
Print Name: XXX XXXXXXXXX
68
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXX XXXXXXX
/S/ XXX XXXXXXX
-----------------------------------
Print Name: XXX XXXXXXX
69
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXXXX XXXXXXX
/S/ XXXXXX XXXXXXX
------------------------------------
Print Name: XXXXXX XXXXXXX
70
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
-------------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------------
TECH ACQUISITION CORPORATION
By: /S/ W. XXXXXXX XXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
ONHEALTH NETWORK COMPANY
By: /S/ XXXXXX X. XXXXXXX
-------------------------------
Title: CHIEF EXECUTIVE OFFICER
-------------------------------
"STOCKHOLDER"
XXXX XXXXXXXX
/S/ XXXX XXXXXXXX
------------------------------------
Print Name: XXXX XXXXXXXX
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SCHEDULE 1
----------
----------------------------------- -----------------------------------
STOCKHOLDER'S NAME NUMBER OF SHARES HELD
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Xxx X. Xxxxx 547,150
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Xxx Xxxxxxx Funds, Inc. 9,823,650
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Xxxxx X. Xxxxxxxxxx 675,150
----------------------------------- -----------------------------------
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