1
SHAREHOLDER VOTING AGREEMENT EXHIBIT 7.2
This Shareholder Voting Agreement (the "Agreement") is entered
into as of February 21, 2000, between the undersigned New Enterprise Associates,
a shareholder (the "Shareholder") of MedicaLogic Inc., an Oregon corporation
("MedicaLogic"), and Medscape, Inc., a Delaware corporation ("Medscape").
A. Contemporaneously with the execution and delivery of this
Agreement, Medscape, MedicaLogic and a wholly owned Delaware subsidiary of
MedicaLogic ("Merger Corp."), are entering into an Agreement of Reorganization
and Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to
which Merger Corp. will merge with and into Medscape (the "Merger"), upon the
terms and conditions set forth therein. Capitalized terms used in this Agreement
but not otherwise defined shall have the meaning ascribed to them in the Merger
Agreement.
B. The Shareholder desires that the Merger occur and that
Medscape and Merger Corp. combine, as set forth in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Shareholder.
1.1 The Shareholder represents that the Shareholder
is the holder of the number of shares of the capital stock of
MedicaLogic set forth on the signature page to this Agreement
("Shares") free and clear of all Liens.
1.2 The Shareholder represents that the Shareholder
does not beneficially or of record own (as such term is defined in the
Exchange Act) (a) any shares of the capital stock of MedicaLogic or (b)
any rights to acquire any shares of the capital stock of MedicaLogic,
other than the Shareholder's Shares, but excluding any shares of the
capital stock of MedicaLogic which the Shareholder has the right to
obtain upon the exercise of stock options outstanding on the date
hereof.
1.3 The Shareholder represents that the Shareholder
has full power and authority to make, enter into and carry out the
terms of this Agreement. This Agreement has been duly executed and
delivered by the Shareholder and constitutes a legal, valid and binding
obligation of the Shareholder, enforceable against the Shareholder in
accordance with its terms,
2
subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief and other equitable remedies.
1.4 The Shareholder represents that the execution and
delivery of this Agreement by the Shareholder do not, and the
performance of this Agreement by the Shareholder will not: (a) conflict
with or violate any order applicable to the Shareholder or by which the
Shareholder or any of the Shareholder's properties or Shares is bound
or affected; or (b) result in any breach of or constitute a default
(with notice or lapse of time, or both) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or
result in the creation of any lien, restriction, adverse claim,
encumbrance or security interest in or to any of the Shares pursuant to
any written, oral or other agreement, contract or legally binding
commitment to which the Shareholder is a party or by which the
Shareholder or any of the Shareholder's properties (including but not
limited to the Shares) is bound or affected.
2. Agreement to Vote Shares; Proxy; Waiver.
2.1 Voting. The Shareholder agrees that at any
meeting of the shareholders of MedicaLogic, however called, and in any
action taken by written consent of shareholders of MedicaLogic without
a meeting, the Shareholder shall vote the Shareholder's Shares and any
New Shares (as defined in Section 6 hereof), and shall cause any holder
of record of the Shareholder's Shares or New Shares to vote (a) to
approve the issuance of MedicaLogic Common Stock in the Merger, (b) to
approve any action required in furtherance thereof and (c) against any
action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of MedicaLogic in the
Merger Agreement or that would preclude fulfillment of a condition
under the Merger Agreement to MedicaLogic's obligation to consummate
the Merger.
2.2 Proxy. Contemporaneously with the execution of
this Agreement, the Shareholder agrees to deliver to Medscape a proxy
substantially in the form attached hereto as Exhibit A, which proxy
shall be irrevocable to the fullest extent permitted by law (except
that such proxy shall be deemed automatically revoked upon a
termination of this Agreement in accordance with Section 12.4), with
the total number of the Shareholder's Shares and any New Shares
correctly indicated thereon.
2.3 Waiver.
(a) The Shareholder hereby agrees not to
exercise any rights of appraisal and any dissenters' rights
that the Shareholder may have (whether under applicable law or
otherwise) or could potentially have or acquire in connection
with the Merger.
2
3
(b) The Shareholder hereby waives any rights
of first refusal, rights of co-sale, registration rights,
preemptive rights, rights of redemption or repurchase, rights
to notice and similar rights of the Shareholder under any
agreement, arrangement or understanding applicable to the
Shares or New Shares, in each case only as the same may apply
to the execution and delivery of the Merger Agreement and the
consummation of the Merger and the other transactions
contemplated by the Merger Agreement. The Shareholder agrees
to take such actions, and execute and deliver such agreements
and documents, as may reasonably be requested by Medscape in
order to effect, confirm or evidence the foregoing waivers.
3. No Voting Trusts. After the date hereof, the Shareholder
agrees that the Shareholder will not, nor will the Shareholder permit any entity
under the Shareholder's control to, deposit any of the Shareholder's Shares in a
voting trust or subject any of the Shareholder's Shares to any arrangement with
respect to the voting of such Shares other than agreements entered into with
Medscape.
4. No Proxy Solicitations. The Shareholder agrees that the
Shareholder will not, nor will the Shareholder permit any entity under the
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or competition with the consummation of the Merger, (b)
subject to Section 10, directly or indirectly solicit, encourage, initiate or
otherwise facilitate any inquiries or the making of any proposal or offer with
respect to an Acquisition Transaction (as defined in the Merger Agreement) or
engage in any negotiation concerning, or provide any confidential information or
data to, or have any discussions with any person relating to, an Acquisition
Transaction proposal, (c) become a member of a "group" (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of
MedicaLogic for the purpose of opposing or competing with the consummation of
the Merger, or (d) take any action which would prevent, burden or materially
delay the consummation of the transactions contemplated by this Agreement.
5. [Reserved]
6. Additional Purchases. During the period commencing on
February 21, 2000 and ending after the earlier of (a) the effective date of the
Merger or (b) the date this Agreement shall be terminated in accordance with its
terms, the Shareholder agrees that the Shareholder will not (i) purchase or
otherwise acquire, including without limitation by the exercise of options,
beneficial ownership of any shares of the capital stock of MedicaLogic after the
execution of this Agreement ("New Shares"), or (ii) voluntarily acquire the
right to vote or share in the voting of any shares of the capital stock of
MedicaLogic other than the Shares, unless the Shareholder agrees to deliver to
Medscape immediately after such purchase or acquisition a proxy substantially in
the form attached hereto as Exhibit A with respect to such New Shares,
3
4
which proxy shall be irrevocable to the fullest extent permitted by law (except
that such proxy shall be deemed automatically revoked upon a termination of this
Agreement in accordance with Section 12.4). The Shareholder also agrees that any
New Shares acquired or purchased by him shall be subject to the terms of this
Agreement to the same extent as if they constituted Shares.
7. Specific Performance. Each party hereto severally
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto severally agrees that
injunctive relief or other equitable remedy, in addition to remedies at law or
damages, is the appropriate remedy for any such failure and will not oppose the
granting of such relief on the basis that the other party has an adequate remedy
at law. Each party hereto severally agrees that it will not seek, and agrees to
waive any requirement for, the securing or posting of a bond in connection with
any other party's seeking or obtaining such equitable relief.
8. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns and shall not be assignable without the written consent
of all other parties hereto.
9. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof,
and this Agreement supersedes all prior agreements, written or oral, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended, supplemented or modified, and no provisions hereof may be modified
or waived, except by an instrument in writing signed by all the parties hereto.
No waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in the Shareholder's capacity as the beneficial
owner of the Shares held by Shareholder, and Shareholder makes no agreement or
understanding herein in the Shareholder's capacity, if any, as a director or
officer of MedicaLogic.
11. Spousal Interests in Shares. To the extent that any of
Shareholder's Shares constitute the community property of Shareholder and the
Shareholder's spouse, if applicable, Shareholder shall obtain the spouse's
acknowledgment of and consent to the existence and binding effect of this
Agreement, by executing a spousal consent in the form attached hereto as Exhibit
B, and incorporated into this Agreement by reference.
4
5
12. Miscellaneous.
12.1 This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the
laws of the State of Oregon.
12.2 If any provision of this Agreement or the
application of such provision to any person or circumstances shall be
held invalid by a court of competent jurisdiction, the remainder of the
provision held invalid and the application of such provision to persons
or circumstances, other than the party as to which it is held invalid,
shall not be affected.
12.3 This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
12.4 This Agreement shall terminate upon the earliest
to occur of (i) the consummation of the Merger or (ii) termination of
the Merger Agreement (the "Expiration Date").
12.5 All Section headings herein are for convenience
of reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.
12.6 The obligations of the Shareholder set forth in
this Agreement shall not be effective or binding upon him until after
such time as the
5
6
Merger Agreement is executed and delivered by MedicaLogic, Medscape and
Merger Corp. The parties agree that there is not and has not been any
other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
MEDSCAPE, INC.:
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: CEO
NEW ENTERPRISE ASSOCIATES:
By: /s/ C. Xxxxxxx Xxxxxxxx
----------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Number of Shares of Common Stock
owned by the Shareholder as of the
date of this Agreement:
2,353,596
6
7
EXHIBIT A
FORM OF PROXY
In connection with the Shareholder Voting Agreement (the
"Voting Agreement"), dated as of February 21, 2000, among the undersigned and
Medscape, Inc., a Delaware corporation ("Medscape"), the undersigned, for
consideration received, hereby appoints Xxxx X. Xxxxxx, President and Chief
Executive Officer of Medscape, the Shareholder's proxy, with power of
substitution, to vote all shares of capital stock of MedicaLogic Inc.
("MedicaLogic") owned by the undersigned at any time until the Expiration Date
(as defined in the Voting Agreement), FOR the (a) approval of the issuance of
MedicaLogic Common Stock (as defined in the Merger Agreement, dated as of
February 21, 2000, among Medscape, MedicaLogic and a wholly owned Delaware
subsidiary of MedicaLogic (the "Merger Agreement")) and (b) approval of any
action required in furtherance thereof, and AGAINST any action or agreement that
would result in a breach of any representation, warranty, covenant or obligation
of MedicaLogic in the Merger Agreement or that would preclude fulfillment of a
condition under the Merger Agreement to MedicaLogic's obligation to consummate
the Merger.
Dated: February 21, 2000
SHAREHOLDER: NEW ENTERPRISE ASSOCIATES
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: General Partner
7
8
EXHIBIT B
FORM OF SPOUSAL CONSENT
I, the spouse of ___________________, have read and hereby
approve the foregoing Agreement. I hereby agree to be irrevocably bound by the
Agreement and further agree that any community interest shall be similarly bound
by the Agreement. I hereby appoint my spouse as my attorney-in-fact with respect
to any amendment or exercise of any rights under the Agreement.
Dated: _________, 2000 _____________________
8
