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VOTING AGREEMENT
by
MEDICAL MANAGER CORPORATION
and
HEALTHEON/WEBMD CORPORATION
Dated as of February 13, 2000
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 13, 2000 (this
"Agreement"), by Medical Manager Corporation (the "Stockholder"), a Delaware
corporation, to and for the benefit of Healtheon/WebMD Corporation, a Delaware
corporation ("Parent").
WHEREAS, as of the date hereof, the Stockholder owns of record
and beneficially, is the beneficial owner, or has the power to vote or direct
the voting of all shares of common stock (the "Avicenna Common Stock"), par
value $.01 per share, of Avicenna Systems Corporation, a Massachusetts
corporation ("Avicenna") (such shares, together with any shares of Avicenna
Common Stock acquired by the Stockholder prior to the termination of this
Agreement, being referred to herein as the "Avicenna Shares");
WHEREAS, as of the date hereof, Avicenna owns of record and
beneficially, is the beneficial owner, or has the power to vote or direct the
voting of 50,763,375 shares of common stock ("CareInsite Common Stock"), par
value $.01 per share, of CareInsite, Inc., a Delaware corporation (
"CareInsite") (such shares, together with any shares of CareInsite Common Stock
acquired by Avicenna prior to the termination of this Agreement, being referred
to herein as the "CareInsite Shares");
WHEREAS, concurrently with the execution of this Agreement,
Parent, Avicenna and CareInsite are entering into an Agreement and Plan of
Merger, dated the date hereof and which may be amended from time to time (as so
amended, the "Merger Agreement"; capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them in the Merger
Agreement); and
WHEREAS, as a condition to the willingness of Parent, Avicenna
and CareInsite to enter into the Merger Agreement, Parent has requested the
Stockholder to agree, and in order to induce Parent to enter into the Merger
Agreement, the Stockholder is willing to agree to vote its Avicenna Shares and
to cause Avicenna to vote its CareInsite Shares in favor of the Merger and
adoption of the Merger Agreement, 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 Shares. Until the termination of this
Agreement in accordance with the terms hereof, the Stockholder hereby agrees
that:
(a) at any meeting of the stockholders of Avicenna, however
called, and in any action by written consent of the stockholders of
Avicenna, such Stockholder will vote
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all of its Avicenna Shares (A) in favor of the approval and adoption
of the Merger Agreement and the Merger and the other transactions
contemplated by the Merger Agreement, (B) against any Company
Acquisition Proposal or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any
other obligation or agreement of CareInsite or Avicenna under the
Merger Agreement or which would result in any of the conditions to the
Merger Agreement not being fulfilled, and (C) in favor of any other
matter necessary to the consummation of the transactions contemplated
by the Merger Agreement and considered and voted upon by the
stockholders of Avicenna; and
(b) at the Company Stockholders' Meeting or at any other
meeting of the stockholders of CareInsite, however called, and in any
action by written consent of the stockholders of CareInsite, such
Stockholder will cause Avicenna to vote all of its CareInsite Shares
(A) in favor of the approval and adoption of the Merger Agreement and
the Merger and the other transactions contemplated by the Merger
Agreement, (B) againstany Company Acquisition Proposal or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
CareInsite under the Merger Agreement or which would result in any of
the conditions to the Merger Agreement not being fulfilled, and (C) in
favor of any other matter necessary to the consummation of the
transactions contemplated by the Merger Agreement and considered and
voted upon by the stockholders of CareInsite.
Section 2. Proxy. The Stockholder, by this Agreement, does
hereby constitute and appoint Parent, or any nominee of Parent, with full power
of substitution, as the Stockholder's irrevocable proxy and attorney-in-fact to
vote the Avicenna Shares. The Stockholder intends this proxy to be irrevocable
and coupled with an interest and will take such further action and execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by the Stockholder with respect to
the Avicenna Shares.
Section 3. Transfer of Shares. The Stockholder represents and
warrants that it 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, (a) sell, assign, transfer (including by operation
of Law), pledge, encumber or otherwise dispose of any of the Avicenna Shares,
(b) deposit any of the Avicenna Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Avicenna 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,
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assignment, transfer (including by operation of Law) or other disposition of any
of the Avicenna Shares.
Section 4. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Parent 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 record or beneficial owner of the
Avicenna Shares and the Avicenna Shares are owned 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 creditors' rights generally and by general
principles of equity.
Section 5. Termination. This Agreement shall terminate upon
the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement) or (ii) the termination of the Merger Agreement in accordance with
the terms thereof; provided that the provisions of Sections 6 through 14
(inclusive) 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 willful 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. Notices. (a) All notices and other communications
given or made pursuant to this Agreement shall be in writing and shall be sent
by an overnight courier service that provides proof of receipt, mailed by
registered or certified mail (postage prepaid, return receipt requested) or
telecopied to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
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if to Parent: Healtheon/WebMD Corporation
400 The Lenox Building
0000 Xxxxxxxxx Xxxx XX
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx Xxxxxxxx,
Executive Vice President, General Counsel
with a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
Bank of America Corporate Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: H. Xxxxx Xxxx III
C. Xxxx Xxxxx
if to the Stockholder: Medical Manager Corporation
000 Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxx Xxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: General Counsel
with a copy to: Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx O'X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Notices of changes of address shall be effective only upon
receipt.
Section 8. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 9. Entire Agreement. This Agreement 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.
Section 10. Severability. 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 so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party. 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 in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
Section 11. Assignment; Binding Effect; Benefit. (a) Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties.
(b) This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and permitted
assigns, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 12. Governing Law; Forum. (a) This Agreement shall be
governed by, and construed in accordance with, the Laws of the State of Delaware
applicable to contracts executed in and to be performed in that state.
(b) Each of the parties hereto irrevocably agrees that all
legal actions or proceedings with respect to this Agreement shall be brought and
determined in the courts of the State of Delaware or in the United States
District Court for the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the jurisdiction
of the aforesaid courts. Each of the parties hereto hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to this Agreement, (i) any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to serve process in accordance with
applicable Law, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts and (iii) to the fullest extent permitted by applicable Law, that (A) the
suit, action or proceeding in any such court is brought in an inconvenient
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forum, (B) the venue of such suit, action or proceeding is improper and (C) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
Section 13. Counterparts. This Agreement may be executed and
delivered in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed and delivered shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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Section 14. WAIVER OF JURY TRIAL. EACH OF PARENT AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT AND THE
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
MEDICAL MANAGER CORPORATION
/s/ Xxxx Xxxxxx
By: Xxxx Xxxxxx
Its: Senior Vice President-Finance and
Chief Accounting Officer
Agreed and Acknowledged:
HEALTHEON/WEBMD CORPORATION
/s/ Xxxx Xxxxxxxx
By: Xxxx Xxxxxxxx
Its: Executive Vice President