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WAIVER
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WAIVER dated January 7, 2005, among NEOFORMA, INC. (formerly
known as XXXXXXXX.XXX, INC.), a Delaware corporation, (the "Company"), VHA INC.,
a Delaware corporation ("VHA") and UNIVERSITY HEALTHSYSTEM CONSORTIUM, an
Illinois corporation ("UHC").
W I T N E S S E T H:
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WHEREAS, the Company and VHA are parties to the Amended and
Restated VHA Common Stock and Warrant Agreement dated as of May 24, 2000 (as
amended pursuant to the Amendment to Amended and Restated Common Stock and
Warrant Agreement dated as of October 18, 2000, the "VHA Agreement");
WHEREAS, the Company and UHC are parties to the Amended and
Restated UHC Common Stock and Warrant Agreement dated as of May 24, 2000 (as
amended pursuant to the Amendment to Amended and Restated Common Stock and
Warrant Agreement dated as of January 25, 2001, the "UHC Agreement"); and
WHEREAS, the Company is engaged in the process of evaluating
strategic alternatives for the Company and its business.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and intending to be legally bound hereby, the parties
agree as follows:
Section 1. Waiver. The Company hereby waives the provisions of
Section 6.2(i) of the VHA Agreement and Section 6.2(i) of the UHC Agreement for
the period commencing on the date hereof and ending on April 7, 2005 for the
sole purpose of permitting VHA, UHC and their respective affiliates to enter
into, and perform their respective obligations under, any agreement, arrangement
or understanding relating to the joint participation of VHA, UHC and any of
their respective affiliates in the evaluation of strategic alternatives for the
Company (including making proposals for the acquisition of Rights in Parent
Stock (as defined in the VHA Agreement and the UHC Agreement) and assets of the
Company) (such activities, collectively, the "Joint Participation"), in each
case solely to the extent the execution of, or the performance under, any such
agreement, arrangement, understanding or joint participation would result in VHA
being deemed the beneficial owner of any Rights in Parent Stock owned by UHC for
purposes of Section 6.2(i) of the VHA Agreement and/or UHC being deemed the
beneficial owner of any Rights in Parent Stock owned by VHA for purposes of
Section 6.2(i) of the UHC Agreement.
Section 2. Anti-Takeover Protections. The Company represents
and warrants to VHA and UHC that the Board of Directors of the Company has
adopted a binding resolution that neither VHA nor UHC will be deemed an
"interested stockholder" under Section 203 General Corporation Law of the State
of Delaware ("DGCL") and that
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the restrictions contained in Section 203 of DGCL applicable to "business
combinations" (as defined in Section 203 of DGCL) shall not apply to VHA and
UHC, solely to the extent that in connection with, or as a result of, the Joint
Participation, VHA is deemed to be the owner of any shares of capital stock of
the Company currently owned by UHC or UHC is deemed to be the owner of any
shares of capital stock of the Company currently owned by VHA. As used in this
Section 2, the term "owner" (including the term "owned") has the meaning
assigned thereto in Section 203 of DGCL.
Section 3. Certain Agreements With Employees.
(a) The Company represents and warrants to VHA and UHC that
each of Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxx
and the other employees of the Company that have entered into an amendment to
their respective employment agreements with the Company to the effect described
in the Company's current report on Form 8-K filed with the Securities and
Exchange Commission on December 17, 2004 (the "Company Report"), have agreed
with the Company that the Joint Participation shall not constitute a "change of
control" under such employment agreements, as so amended (each, an "Employee
Waiver").
(b) The Company agrees and covenants that without the consent
of VHA and UHC, the Company shall not enter into any employment agreement
containing, or amend any of its existing employment agreements to include,
"change of control" provisions similar or comparable to those described in the
Company Report, unless concurrently with entering into or amending any such
employment agreement, each employee of the Company that is a party to such
employment agreement or amendment thereto and the Company agree that that the
Joint Participation shall not constitute a "change of control" for purposes of
any such employment agreement.
(c) The Company agrees and covenants that without the consent
of VHA and UHC, the Company shall not agree or consent to any amendment to, or
revocation or withdrawal of, any Employee Waiver or any agreement of any
employee of the Company contemplated by Section 3(b) regarding the
non-applicability of "change of control" provisions.
Section 4. Status of Agreements. Except as expressly set forth
herein, no provision or term of the VHA Agreement or the UHC Agreement is hereby
waived, modified, amended or supplemented, and all such provisions and terms, as
in effect on the date hereof, are hereby ratified and shall remain in full force
and effect.
Section 5. Amendments; Waivers. This Waiver may not be
modified or amended except by a written instrument signed by authorized
representatives of each party and referring specifically to this Waiver. Any
term, provision or condition of this Waiver may be waived in writing at any time
by the party which is entitled to the benefit thereof.
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Section 6. Counterparts. This Waiver may be executed in
counterparts, which together shall be considered one and the same agreement and
each of which shall be deemed an original.
Section 7. Governing Law. This Waiver shall be governed and
construed under the internal laws of the State of Delaware as applied to
agreements among Delaware residents entered into and performed entirely within
Delaware, without reference to principles of conflicts of laws or choice of law.
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IN WITNESS WHEREOF, each of the parties has executed this
Waiver on the date first written above.
NEOFORMA, INC. (formerly known as
XXXXXXXX.XXX, INC.)
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Chief Financial Officer
VHA INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
UNIVERSITY HEALTHSYSTEM
CONSORTIUM
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
