Exhibit 1
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AMENDMENT No. 4 to WAIVER
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AMENDMENT No. 4 to WAIVER, dated January 7, 2006, 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, VHA and UHC are parties to the Waiver dated January
7, 2005 (the "Original Waiver"), an Amendment No. 1 to Waiver dated April 7,
2005 ("Amendment No. 1"), an Amendment No. 2 to Waiver dated July 7, 2005
("Amendment No. 2") and an Amendment No. 3 to Waiver dated October 7, 2005
("Amendment No. 3"); and
WHEREAS, the parties desire to amend the Original Waiver, as amended by
Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 3, as provided herein.
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. Amendment to Section 1 of the Original Waiver. Section 1 of
the Original Waiver, as amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0 and
Amendment No. 3, is hereby amended by replacing "January 7, 2006" with "the
earlier of (A) the Effective Time (as defined in the Agreement and Plan of
Merger, dated as of October 10, 2005, among the Company, Global Healthcare
Exchange, LLC and Leapfrog Merger Corporation (the "Merger Agreement")) and
(b) the date of the termination of the Merger Agreement".
Section 2. Status of Original Waiver. Except as expressly set forth
herein, no provision or term of the Original Waiver, as amended by Amendment
Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 3, 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. Following the execution and delivery of this Amendment No. 4, all
references to the Original Waiver shall mean references to the Original
Waiver, as amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and
hereby.
Section 3. Amendments; Waivers. This Amendment No. 4 may not be modified
or amended except by a written instrument signed by authorized representatives
of each party and referring specifically to this Amendment No. 4. Any term,
provision or condition of this Amendment No. 4 may be waived in writing at any
time by the party which is entitled to the benefit thereof.
Section 4. Counterparts. This Amendment No. 4 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 5. Governing Law. This Amendment No. 4 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.
IN WITNESS WHEREOF, each of the parties has executed this Amendment No. 4
on the date first written above.
NEOFORMA, INC. (formerly known as
XXXXXXXX.XXX, INC.)
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
VHA INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Administrative Officer
and General Counsel
UNIVERSITY HEALTHSYSTEM
CONSORTIUM
By: Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
