VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 7, 1999 (this
"Agreement"), by XXXXXX XXXXXXX (the "Stockholder"), to and for the benefit of
MEDICAL MANAGER CORPORATION, a Delaware corporation ("Medical Manager") and
MEDICAL MANAGER HEALTH SYSTEMS, INC., a Delaware corporation and a wholly-owned
subsidiary of Medical Manager (the "Purchaser").
WHEREAS, as of the date hereof, the Stockholder owns
beneficially or has the power to vote 23,681,522 shares of common stock, par
value $.01 per share (the "PCN Common Stock"), of PHYSICIAN COMPUTER NETWORK,
INC., a New Jersey corporation ("PCN"), and 11,000 shares of Series B Cumulative
Preferred Stock, par value $.01 per share, of PCN (the "PCN Preferred Stock,"
such shares, together with the above-referenced shares of the PCN Common Stock
and any additional shares of PCN Common Stock or PCN Preferred Stock acquired by
the Stockholder prior to the termination of this Agreement being referred to
herein as the "Shares"); and
WHEREAS, concurrently with the execution of this Agreement,
Medical Manager, the Purchaser, PCN, VERSYSS Incorporated, a Delaware
corporation ("Versyss"), Xxxxxx* Xxxxxx, Inc., a Washington corporation ("WM"),
Integrated Health Systems, Inc., a California corporation ("IHS") and PCN HP
Venture Corp., a Delaware corporation ("HP" and together with PCN, Versyss, WM
and HS, the "Sellers") are entering into an Asset Purchase Agreement, dated as
of the date hereof (the "Purchase Agreement"; capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Purchase Agreement), pursuant to which, upon the terms and subject to the
conditions thereof, the Sellers will sell to the Purchaser substantially all of
the Sellers' assets, including, without limitation, the Business as a going
concern; and
WHEREAS, as a condition to the willingness of Purchaser and
Medical Manager to enter into the Purchase Agreement, Medical Manager and the
Purchaser have requested the Stockholder to agree, and in order to induce
Medical Manager and the Purchaser to enter into the Purchase Agreement, the
Stockholder is willing to agree to vote or cause shares beneficially owned by
him to be voted in favor of certain matters, as more fully set forth below,
relating to the Purchase Agreement and the transactions contemplated thereby,
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 the Shares. Until the termination of this
Agreement in accordance with the terms hereof, the Stockholder hereby agrees
that, in connection with any vote to be taken, consent sought, and in any other
action taken by PCN with respect to the Plan, the Stockholder will vote or cause
all of the Shares to be voted (a) in favor of confirmation of the Plan, (b)
against any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of PCN under the
Purchase Agreement or which would result in any of the conditions to the
Purchase Agreement not being fulfilled and (c) in favor
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of any other matter necessary to the consummation of the transactions
contemplated by the Purchase Agreement and considered and voted upon by the
stockholders of PCN (or any class thereof). In addition, the Stockholder agrees
that it will, upon request by Medical Manager and the Purchaser, furnish written
confirmation, in form and substance reasonably acceptable to Medical Manager and
the Purchaser, of such Stockholder's vote with respect to the foregoing matters.
The Stockholder acknowledges receipt and review of a copy of the Purchase
Agreement.
Section 2. Transfer of Shares. The Stockholder represents and
warrants that it has taken no action, 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, until the termination of this
Agreement, (a) sell, assign, transfer (including by operation of law), pledge,
encumber or otherwise dispose of any of the Shares, (b) deposit any of the
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the 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 the Shares; provided, however, that the foregoing will not limit
or restrict the Stockholder from transferring, subject to the terms hereof, any
or all of the Shares to an entity which is directly or indirectly controlled by
the Stockholder provided further that such entity agrees to be bound by the
terms of this Agreement.
Section 3. Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to Medical Manager and the Purchaser
with respect to itself and his ownership of the Shares as follows:
(a) The Stockholder has all legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby.
(b) The Stockholder is the beneficial owner of the Shares and
beneficially owns such Shares free and clear of any liens, claims,
charges, encumbrances or voting agreements and commitments of every
kind, other than this Agreement.
(c) This Agreement has been duly executed and delivered by the
Stockholder.
(d) This Agreement constitutes the valid and binding agreement
of the Stockholder, enforceable against the Stockholder in accordance
with its terms except as such enforceability may be limited by
bankruptcy, insolvency or other similar requirements of Law affecting
the enforcement of creditor's rights generally and by general
principles of equity.
Section 4. Fiduciary Duty. Notwithstanding anything to the
contrary in this Agreement, nothing herein shall restrict or otherwise limit the
Stockholder from performing his fiduciary obligations in his capacity as a
director and/or a stockholder of PCN or as otherwise determined by the
Bankruptcy Court.
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Section 5. Termination. This Agreement shall terminate upon
the earliest to occur of (i) the rejection of the Plan by the Bankruptcy Court,
(ii) the confirmation of the Plan by the Bankruptcy Court; and (iii) any
material modification of the terms of either one or both of the Purchase
Agreement or the Plan which adversely affects the Stockholder, including,
without limitation, a reduction of the Purchase Price other than an adjustment
as contemplated therein; provided that the provisions of Sections 6 and 7 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
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. Miscellaneous.
(a) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly made or given upon receipt) by
delivery in person, by facsimile, by courier service or by registered
or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance
herewith):
if to Medical Manager and the Purchaser:
Medical Manager Corporation
000 Xxxxx Xxxxx, Xxxxxx 0
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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if to the Stockholder:
Xxxxxx Xxxxxxx
c/o JMP Group
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and
oral, between the parties with respect thereto. This Agreement may not
be amended, modified or rescinded except by an instrument in writing
signed by each of the parties hereto.
(c) 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. 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 to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms
of this Agreement remain as originally contemplated to the fullest
extent possible.
(d) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, provided that no party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under
this Agreement (except as set forth herein) without the prior written
consent of the other parties hereto.
(e) This Agreement shall be governed by, and construed in
accordance with the laws of the State of New Jersey. All actions and
proceedings arising out of or relating to this Agreement shall be heard
and determined exclusively in the courts of the State of New Jersey and
the United States District Court for the State of New Jersey.
(f) This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed signature page of this Agreement.
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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 X. Picower
Xxxxxx Xxxxxxx
Agreed and Acknowledged:
MEDICAL MANAGER CORPORATION,
a Delaware corporation
/s/ Xxxx Xxxx
By: Xxxx Xxxx
Its: Co-CEO
MEDICAL MANAGER HEALTH SYSTEMS, INC.,
a Delaware corporation
/s/ Xxxx X. Sessions
By: Xxxx Xxxxxxxx
Its: President
