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EXHIBIT 1
Execution Version
COMPANY VOTING AGREEMENT
This COMPANY VOTING AGREEMENT (the "AGREEMENT") is made and entered
into as of March 30, 2000, between Xxxxxxxx.xxx, Inc., a Delaware corporation
("PARENT"), and the undersigned stockholder ("STOCKHOLDER") of Eclipsys
Corporation, a Delaware corporation ("COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent,
Company and NeoIII Acquisition Corp., a Delaware corporation and a wholly-owned
first-tier subsidiary of Parent ("MERGER SUB"), are entering into an Agreement
and Plan of Merger (the "MERGER AGREEMENT") which provides for the merger of
Merger Sub with and into Company (the "MERGER"). Pursuant to the Merger, shares
of capital stock of Company will be converted into shares of Parent Common Stock
on the basis described in the Merger Agreement. Capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement.
B. Stockholder is the record holder of such number of outstanding
shares of capital stock of Company as is indicated on the final page of this
Agreement.
C. As a material inducement to enter into the Merger Agreement,
Parent desires Stockholder to agree, and Stockholder is willing to agree, to
vote the Shares (as defined below), and such other shares of capital stock of
Company over which Stockholder has voting power, so as to facilitate
consummation of the Merger.
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES
1.1 Definitions. For purposes of this Agreement:
(a) Shares. The term "SHARES" shall mean all
issued and outstanding shares of Company Common Stock owned of record or
beneficially by Stockholder or over which Stockholder exercises voting power, in
each case, as of the record date for persons entitled (i) to receive notice of,
and to vote at the meeting of the stockholders of Company called for the purpose
of voting on the matters referred to in Section 1.2, or (ii) to take action by
written consent of the stockholders of Company with respect to the matters
referred to in Section 1.2. Stockholder agrees that any shares of capital stock
of Company that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership or over which Stockholder exercises
voting power after the execution of this Agreement and prior to the date of
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termination of this Agreement pursuant to Section 3 below shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares on the date hereof.
(b) Subject Securities. The term "SUBJECT
SECURITIES" shall mean: (i) all securities of Company (including all shares of
Company Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock beneficially owned by Stockholder as of the date
of this Agreement; and (ii) all additional securities of Company (including all
additional shares of Company Common Stock and all additional options, warrants
and other rights to acquire shares of Company Common Stock) of which Stockholder
acquires ownership during the period from the date of this Agreement through the
earlier of termination of this Agreement pursuant to Section 3 below or the
record date for the meeting at which stockholders of Company are asked to vote
upon approval of the Merger Agreement and the Merger.
(c) Transfer. Stockholder shall be deemed to
have effected a "TRANSFER" of a security if Stockholder directly or indirectly:
(i) sells, pledges, encumbers, transfers or disposes of, or grants an option
with respect to, such security or any interest in such security; or (ii) enters
into an agreement or commitment providing for the sale, pledge, encumbrance,
transfer or disposition of, or grant of an option with respect to, such security
or any interest therein.
1.2 Agreement to Vote Shares. Stockholder hereby
covenants and agrees that, during the period commencing on the date hereof and
continuing until the first to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement (the "EFFECTIVE TIME") and (ii) termination of this Agreement in
accordance with its terms, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the stockholders of Company,
however called, or in connection with any written consent of the stockholders of
Company, Stockholder will appear at the meeting or otherwise cause the Shares to
be counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Shares:
(1) in favor of the approval and adoption of the Merger
Agreement in the form entered into on the date hereof and the approval
of the Merger and the other actions contemplated by the Merger
Agreement and any actions required in furtherance thereof;
(2) against approval of any proposal made in opposition
to or in competition with the consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as
defined in the Merger Agreement) or any action or agreement that would
result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Company under the
Merger Agreement or of Stockholder under this Agreement.
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Stockholder further agrees not to enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 1.2.
1.3 Transfer and Other Restrictions. (a) Prior to the
termination of this Agreement, Stockholder agrees not to, directly or
indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, Transfer or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, Transfer or other
disposition of any or all of the Subject Securities or any interest
therein except as provided in Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any
of the Subject Securities into a voting trust or enter into a voting
agreement or arrangement with respect to the Subject Securities except
as provided in this Agreement; or
(iii) take any other action that would make any
representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder
from performing its obligations under this Agreement.
(b) To the extent Stockholder is, as of the date hereof,
party to a contract or agreement that requires Stockholder to Transfer Subject
Securities to another person or entity (excluding a contract or agreement
pledging Subject Securities to Company), Stockholder will not effect any such
Transfer unless and until the transferee agrees to be bound by and executes an
agreement in the form of this Agreement with respect to the Subject Securities
to be Transferred. Nothing herein shall prohibit Stockholder from exercising (in
accordance with the terms of the option or warrant, as applicable) any option or
warrant Stockholder may hold; provided that the securities acquired upon such
exercise shall be deemed Subject Securities and Shares hereunder.
1.4 Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent a proxy in the form
attached hereto as Exhibit I (the "PROXY"), which shall be irrevocable to the
extent set forth therein, with respect to the Shares.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
(a) Stockholder is the record and beneficial owner of, or
Stockholder exercises voting power over, the shares of Company capital stock
indicated on the final page of this Agreement, which, on and as of the date
hereof, are free and clear of any Encumbrances that would adversely affect the
ability of Stockholder to carry out the terms of this Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares beneficially
owned by such Stockholder and, except as set forth on such signature pages, the
Stockholder holds no
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options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has no other interest in or voting rights with
respect to any securities of the Company.
(b) Stockholder has the requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement by such Stockholder
and the consummation by such Stockholder of the transactions contemplated by
this Agreement have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person). This
Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation which would
result in the creation of any Encumbrance upon any of the Shares owned by such
Stockholder under, any provision of Stockholder's charter documents (if
applicable), applicable law or regulation or of any agreement, judgment,
injunction, order, decree, or other instrument binding on such Stockholder or
any Shares owned by such Stockholder. No consent, approval, order or
authorization of, or registration, declaration or filing with or exemption by
any Governmental Entity is required by or with respect to such Stockholder in
connection with the execution and delivery of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated by this
Agreement, except for applicable requirements, if any, of Sections 13 and 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder. If this Agreement is being executed in a representative or fiduciary
capacity, the person signing this Agreement has full power and authority to
enter into and perform such Agreement.
3. TERMINATION
This Agreement shall terminate and shall have no further force or
effect as of the first to occur of (i) the Effective Time and (ii) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article VII thereof. Notwithstanding any other provision hereof, this Agreement
shall terminate in the event that the Merger Agreement is modified in a manner
that is materially adverse to Stockholder without Stockholder's consent.
4. MISCELLANEOUS
4.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither
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this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by either of the parties without prior written consent of
the other. Any purported assignment in violation of this Section shall be void.
4.3 Amendments and Modification. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
4.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
4.5 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given upon delivery
either by commercial delivery service, or sent via facsimile (receipt confirmed)
to the parties at the following address or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
If to Parent:
Xxxxxxxx.xxx, Inc.
0000-0 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Stockholder, to the address for notice set forth on the
last page hereof.
Any party hereto may by notice so given provide and change its address for
future notices hereunder. Notice shall conclusively be deemed to have been given
when personally delivered or when deposited in the mail in the manner set forth
above.
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4.6 Governing Law. This Agreement shall be governed by
and construed exclusively in accordance with the laws of the State of Delaware,
excluding that body of law relating to conflict of laws.
4.7 Entire Agreement. This Agreement and the Merger
Agreement constitute and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersede any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.9 Captions. The captions to sections of this Agreement
have been inserted for identification and reference purposes only and shall not
be used to construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Company Voting
Agreement to be executed by their duly authorized respective officers as of the
date first above written.
XXXXXXXX.XXX, INC.
By:
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Name:
Title:
STOCKHOLDER:
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By:
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Name:
Title:
Stockholder's Address for Notice:
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Outstanding shares of Company capital
stock beneficially owned by
Stockholder:
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder (the "STOCKHOLDER") of Eclipsys
Corporation, a Delaware corporation (the "Company"), hereby irrevocably appoints
and constitutes the members of the Board of Directors of Xxxxxxxx.xxx, Inc., a
Delaware corporation ("PARENT"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of Company
which are listed below (the "SHARES"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof and
prior to the date this proxy terminates, to vote the Shares as follows: the
agents and proxies named above are empowered at any time prior to termination of
this proxy to exercise all voting and other rights (including, without
limitation, the power to execute and deliver written consents with respect to
the Shares) of the undersigned at every annual, special or adjourned meeting of
Company stockholders, and in every written consent in lieu of such a meeting, or
otherwise, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among Parent, NeoIII Acquisition Corp. ("MERGER SUB") and
Company in the form entered into on the date hereof, and the approval of the
merger of Merger Sub with and into Company (the "MERGER"), and (ii) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger Agreement) or any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Company under the Merger Agreement or of the Stockholder under the Company
Voting Agreement between Parent and Stockholder (the "VOTING AGREEMENT").
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant to the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. Upon the execution hereof, all prior proxies given
by the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March 30, 2000.
Stockholder:
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By:
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Name and Title
Shares of Company capital stock beneficially owned:
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