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EXHIBIT 10.41
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is entered into as of March 6,
2000, by and between XXXXXXX.XXX, INC., a Delaware corporation ("Parent"), and
PREMIER PURCHASING PARTNERS, L.P., a California limited partnership ("Major
Member"). Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Merger Agreement (as defined below).
RECITALS
A. Parent, Sapphire Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), Premier Health Exchange, LLC,
a Delaware limited liability company (the "Company") and Major Member are
entering into an Agreement and Plan of Merger dated of even date herewith (the
"Merger Agreement") which provides (subject to the conditions set forth therein)
for the merger of Merger Sub into the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Major Member, in its capacity as such, is entering into this Voting
Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON MEMBERSHIP UNITS" shall mean the common
membership units of the Company, constituting all of the outstanding memberships
interests of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated, or (ii) the date upon which
the Merger becomes effective.
(c) Major Member shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a Company Common Membership Unit or other security if Major
Member: (i) is the record owner of such security; or (ii) is the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of such security.
(d) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all Company Common Membership Units, Company Options, Company
Warrants and other rights to acquire Company Common Membership Units or other
rights of ownership of the Company) Owned by Major Member as of the date of this
Agreement; and (ii) all additional securities of the Company (including all
additional Company Common Membership Units and all additional options, warrants
and other rights to acquire Company Common Membership Units
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or other rights of ownership of the Company) of which Major Member acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
(e) A Person shall be deemed to have effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein, or (iii) reduces such Person's beneficial ownership of,
interest in or risk relating to any such security.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Major Member agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Major Member shall not (i) cause or
permit any Transfer of any of the Subject Securities (or announce any proposed
Transfer) to any Person other than to a Person who agrees to be bound by the
terms and conditions of this Agreement and executes a Voting Agreement and Proxy
identical to this Agreement and Proxy with respect to all Subject Securities
transferred to such Person; provided however, that in no event shall Major
Member be permitted to Transfer any Subject Securities if such Transfer (taken
together with all previous Transfers of Subject Securities by the Major Member)
would reduce Major Member's Ownership of Subject Securities below that which
would be required under the Company's charter documents and applicable law to
approve the Merger Agreement and the Merger, (ii) create or permit to exist any
Encumbrance with respect to any of the Subject Securities (other than
Encumbrances which do not affect the right to vote such securities that may
exist with respect to such Subject Securities as of the date of this Agreement),
or (iii) commit or agree to do any of the foregoing.
2.2 TRANSFER OF VOTING RIGHTS. Major Member agrees that, during the
period from the date of this Voting Agreement through the Expiration Date, Major
Member shall ensure that: (a) none of the Subject Securities is deposited into a
voting trust; and (b) no proxy is granted to any Person (other than to Parent),
and no voting agreement or similar agreement is entered into, with respect to
any of the Subject Securities.
SECTION 3. VOTING OF UNITS
3.1 VOTING AGREEMENT. Major Member agrees that, during the period from
the date of this Voting Agreement through the Expiration Date at any meeting of
members of the Company, however called, and in any written action by consent of
the members of the Company, unless otherwise directed in writing by Parent,
Major Member shall vote the Subject Securities or cause the Subject Securities
to be voted:
(a) in favor of the approval of the Merger and the approval and
adoption of the Merger Agreement and in favor of each of the other actions
contemplated by the Merger Agreement;
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(b) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in the
Merger Agreement; and
(c) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement and to the extent any of such
actions are required to be approved by the members of the Company under
applicable law or are otherwise put to the members of the Company for approval):
(i) any extraordinary transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company;
(ii) any sale, lease or transfer of a material amount of assets of the Company
or any subsidiary of the Company (other than in the ordinary course of
business); (iii) any reorganization, recapitalization, dissolution or
liquidation of the Company or any subsidiary of the Company; (iv) any change in
a majority of the members of the Management Committee of the Company; or (v) any
other action which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the Merger or
any of the other transactions contemplated by the Merger Agreement or this
Voting Agreement.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting
Agreement: (i) Major Member shall deliver to Parent a proxy in the form attached
to this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the Company Common Membership Units
referred to therein (the "Proxy"); and (ii) Major Member shall cause to be
delivered to Parent an additional proxy (in the form attached hereto as Exhibit
A) executed on behalf of the record owner of any outstanding Company Common
Membership Units and any other voting security of the Company that Major Member
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Major Member.
(b) Major Member shall, at its own expense, perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in Parent the power to carry out and give effect to the
provisions of this Voting Agreement.
SECTION 4. WAIVER OF DISSENTERS' RIGHTS
Major Member hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Merger or any
related transaction that Major Member or any other Person may have by virtue of
the ownership of any outstanding Company Common Membership Units and any other
voting securities of the Company which Major Member Owns.
SECTION 5. NO SOLICITATION
Major Member agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Major Member shall not, and shall not
permit any of its Representatives to, directly or indirectly: (i) solicit or
encourage the initiation or submission of any expression of interest, inquiry,
proposal or offer from any Person (other than Parent) relating
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to a possible Company Acquisition Transaction, (ii) participate in any
discussions or negotiations or enter into any agreement with, or provide any
non-public information to, any Person (other than Parent) relating to or in
connection with a possible Company Acquisition Transaction, (iii) entertain,
consider or accept any proposal or offer from any Person (other than Parent)
relating to a possible Company Acquisition Transaction, or (iv) enter into any
agreement or arrangement with any Person (other than Parent) to provide
electronic commerce services to the Major Member, the Company or any of their
respective affiliates. Major Member shall immediately cease and discontinue, and
Major Member shall ensure that its Representatives immediately cease and
discontinue, any existing discussions with any Person that relate to any
possible Company Acquisition Transaction. Major Member shall promptly notify
Parent in writing of any inquiry, proposal or offer relating to a possible
Company Acquisition Transaction that is received after the date hereof by Major
Member or any of Major Member's Representatives prior to the Expiration Date.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF MAJOR MEMBER
Major Member hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Major Member has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform its obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Major Member and constitute legal, valid and binding obligations of Major
Member, enforceable against Major Member in accordance with their terms, subject
to (i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS
(a) The execution and delivery of this Voting Agreement and the
Proxy by Major Member do not, and the performance of this Voting Agreement and
the Proxy by Major Member will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Major Member or by which it
or any of its properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Major Member is a party or by which Major Member or any of its affiliates or
properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the
Proxy by Major Member do not, and the performance of this Voting Agreement and
the Proxy by Major Member will not, require any consent or approval of any
Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Major Member holds of record (free and clear of any Encumbrances or
restrictions) the number of outstanding
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Company Common Membership Units set forth under the heading "Units Held of
Record" on the signature page hereof; (b) Major Member holds (free and clear of
any Encumbrances or restrictions) the Company Options, Company Warrants and
other rights to acquire Company Common Membership Units forth under the heading
"Options, Warrants and Other Rights" on the signature page hereof; (c) Major
Member Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Major Member does not directly or indirectly Own any Company Common Membership
Units or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any Company Common Membership
Units or other securities of the Company, other than the units and options,
warrants and other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in Sections 6.1 and 6.2 of this Voting Agreement are accurate in all
respects as of the date of this Voting Agreement, will be accurate in all
respects at all times through the Expiration Date and will be accurate in all
respects as of the date of the consummation of the Merger as if made on that
date. The representations and warranties contained in Section 6.3 of this Voting
Agreement are accurate in all respects as of the date of this Voting Agreement.
SECTION 7. ADDITIONAL COVENANTS OF MAJOR MEMBER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Major Member shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as Parent
may reasonably request for the purpose of carrying out and furthering the intent
of this Voting Agreement.
7.2 LEGEND. Immediately after the execution of this Voting Agreement
(and from time to time upon the acquisition by Major Member of Ownership of any
Company Common Membership Units or other ownership interest in the Company prior
to the Expiration Date), at the written request of Parent, Major Member shall
ensure that each certificate evidencing any outstanding Company Common
Membership Units or other securities of the Company Owned by Major Member bears
a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED
AS OF MARCH 6, 2000, BETWEEN THE ISSUER AND XXXXXXX.XXX, INC. AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Major Member in
this Voting Agreement shall survive until the Expiration Date.
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8.2 INDEMNIFICATION. Major Member shall hold harmless and indemnify
Parent and Parent's affiliates from and against, and shall compensate and
reimburse Parent and Parent's affiliates for, any loss, damage, claim,
liability, fee (including attorneys' fees), demand, cost or expense (regardless
of whether or not such loss, damage, claim, liability, fee, demand, cost or
expense relates to a third-party claim) that is directly or indirectly suffered
or incurred by Parent or any of Parent's affiliates, or to which Parent or any
of Parent's affiliates otherwise becomes subject, and that arises directly or
indirectly from (a) any inaccuracy in or breach of any representation or
warranty contained in this Voting Agreement, or (b) any failure on the part of
Major Member to observe, perform or abide by, or any other breach of, any
restriction, covenant, obligation or other provision contained in this Voting
Agreement or in the Proxy.
8.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
8.4 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party):
IF TO MAJOR MEMBER:
Premier Purchasing Partners, L.P.
C/O Premier Plans, Inc.
Attn: General Counsel
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telephone Number: (000) 000-0000
Facsimile: (000) 000-0000
IF TO PARENT:
xxxxxxx.xxx, Inc.
Attn: Chief Financial Officer
00000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone Number: (000) 000-0000
Fax: (000) 000-0000
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WITH A COPY TO:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telephone Number: (000) 000-0000
Fax: (000) 000-0000
8.5 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
8.6 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
8.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Major Member and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Major Member
and its successors and assigns, and shall inure to the benefit of Parent and its
successors and assigns. Without limiting any of the restrictions set forth in
Section 2 or elsewhere in this Voting Agreement, this Voting Agreement shall be
binding upon any Person to whom any Subject Securities are transferred. Nothing
in this Voting Agreement is intended to confer on any Person (other than Parent
and its successors and assigns) any rights or remedies of any nature.
8.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Major Member agrees that, in the event of any breach or
threatened breach by Major Member of any covenant or obligation contained in
this Voting Agreement or in the Proxy, Parent shall be entitled (in addition to
any
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other remedy that may be available to it, including monetary damages) to
seek and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Major Member further agrees that
neither Parent nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 8.8, and Major Member irrevocably waives
any right it may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.9 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Major Member under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations.
8.10 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws). Any legal
action or legal proceeding relating to this Voting Agreement or the Proxy or the
enforcement of any provision of this Voting Agreement or the Proxy may be
brought or otherwise commenced in any state or federal court located in the
County of San Diego, California.
(b) MAJOR MEMBER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
8.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
8.12 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Major Member, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
8.14 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power,
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right, privilege or remedy under this Voting Agreement, shall operate as a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any other
or further exercise thereof or of any other power, right, privilege or remedy.
Parent shall not be deemed to have waived any claim available to Parent arising
out of this Voting Agreement, or any power, right, privilege or remedy of Parent
under this Voting Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of Parent; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
8.15 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
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IN WITNESS WHEREOF, Parent and Major Member have caused this Voting
Agreement to be executed as of the date first written above.
PARENT:
XXXXXXX.XXX, INC.,
a Delaware corporation.
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: CEO
MAJOR MEMBER:
PREMIER PURCHASING PARTNERS, L.P.
BY: PREMIER PLANS, INC.
Its General Partner
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President & CEO
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COMPANY OPTIONS,
COMPANY WARRANTS ADDITIONAL SECURITIES
UNITS HELD OF RECORD AND OTHER RIGHTS BENEFICIALLY OWNED
---------------------------------------------------------------------------------------------
Company Common 63,375,000
Membership Units:
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[VOTING AGREEMENT SIGNATURE PAGE]
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned member of Premier Health Exchange, LLC, a Delaware
limited liability company (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes xxxxxxx.xxx, Inc., a Delaware
corporation ("Parent"), Xxxx Xxxxxxxx and any other individual who shall
hereafter be designated by Parent, and each of them, the attorneys and proxies
of the undersigned with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to (i) the outstanding
Company Common Membership Units owned of record by the undersigned as of the
date of this proxy, which units are specified on the final page of this proxy,
and (ii) any and all other Company Common Membership Units or other securities
of the Company which the undersigned may acquire on or after the date hereof.
(The Company Common Membership Units and other securities of the Company
referred to in clauses "(i)" and "(ii)" of the immediately preceding sentence
are collectively referred to in this proxy as the "Units.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
units are hereby revoked, and the undersigned agrees that no subsequent proxies
will be given with respect to any of the Units.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Sapphire Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent, the
Company and Premier Purchasing Partners, L.P., a California limited partnership
(the "Merger Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms used in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and, in the
event the undersigned fails to vote the Units as required by the Voting
Agreement, may exercise this proxy, to vote the Units at any time until the
earlier to occur of the valid termination of the Merger Agreement or the
Effective Time at any meeting of members of the Company, however called, and in
any written action by consent of the members of the Company:
(i) in favor of the approval of the Merger and the approval and
adoption of the Merger Agreement and in favor of each of the other actions
contemplated by the Merger Agreement;
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of the Company in
the Merger Agreement; and
(iii) against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement and to the extent any of
such actions are required to be approved by the Major Members of the Company
under applicable law or are otherwise put to the Major Members of the Company
for approval): (A) any extraordinary transaction, such as a
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merger, consolidation or other business combination involving the Company or any
subsidiary of the Company; (B) any sale, lease or transfer of a material amount
of assets of the Company or any subsidiary of the Company (other than in the
ordinary course of business); (C) any reorganization, recapitalization,
dissolution or liquidation of the Company or any subsidiary of the Company; (D)
any change in a majority of the members of the Management Committee of the
Company; or (E) any other action which is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the Merger
Agreement or this Voting Agreement.
The undersigned may vote the Units on all other matters.
This proxy shall be binding upon the successors and assigns of the
undersigned (including any transferee of any of the Units).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
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This proxy shall terminate upon the earlier of the valid termination of
the Merger Agreement or the effective time of the Merger.
Dated: March 6, 2000.
PREMIER PURCHASING PARTNERS, L.P.
BY: PREMIER PLANS, INC.
Its General Partner
By: /s/ XXXXXXX XXXXXXX
--------------------------------------
Name: /s/ Xxxxxxx Xxxxxxx
Title: President & CEO
Number of Units owned of record or
beneficially as of the date of this proxy:
63,375,000
