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EXHIBIT 99.1
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "AGREEMENT") is made and entered into
as of May 24, 2000, among Neoforma.com, Inc., a Delaware corporation ("PARENT"),
NeoIII Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Parent ("MERGER SUB"), Eclipsys Corporation, a Delaware corporation
("ECLIPSYS"), HEALTHvision, Inc., a Delaware corporation ("HEALTHVISION"),
Novation, LLC, a Delaware limited liability company ("NOVATION"), VHA Inc., a
Delaware corporation ("VHA"), University HealthSystem Consortium, an Illinois
corporation ("UHC"), and Healthcare Purchasing Partners International, LLC, a
Delaware limited liability corporation ("HPPI").
A. Parent, Merger Sub and Eclipsys are parties to an Agreement and Plan
of Merger, dated as of March 30, 2000 (the "ECLIPSYS MERGER AGREEMENT").
B. Parent and Healthvision are parties to an Agreement and Plan of
Merger, dated as of March 30, 2000 (the "HEALTHVISION MERGER AGREEMENT").
C. Parent, Merger Sub and Eclipsys mutually intend to terminate the
Eclipsys Merger Agreement on the terms set forth in this Agreement.
D. Parent and Healthvision mutually intend to terminate the
Healthvision Merger Agreement on the terms set forth in this Agreement.
In consideration of the foregoing and the covenants and agreements set
forth in this Agreement, the parties agree as follows:
1. Termination of Eclipsys Merger Agreement. Pursuant to Section 7.1(a)
of the Eclipsys Merger Agreement, Parent and Eclipsys hereby terminate the
Eclipsys Merger Agreement by mutual consent. Each of Parent and Eclipsys hereby
represent and warrant to the other party that this termination was duly
authorized by such party's Board of Directors. Parent, Merger Sub and Eclipsys
agree that no party hereto, nor any of their respective officers, directors,
members, employees, affiliates, agents or representatives shall have any
liability to any other such person under the Eclipsys Merger Agreement or in
connection with such termination. The parties acknowledge that the voting
agreements (including any related proxies) entered into by the Eclipsys and
Parent stockholders in connection with the Eclipsys Merger Agreement shall
terminate in accordance with their terms concurrently with the execution and
delivery of this Agreement.
2. Termination of Healthvision Merger Agreement. Pursuant to Section
7.1(a) of the Healthvision Merger Agreement, Parent and Healthvision hereby
terminate the Healthvision Merger Agreement by mutual consent. Each of Parent
and Healthvision hereby represent and warrant to the other party that this
termination was duly authorized by such party's Board of Directors. Parent and
Healthvision agree that no party hereto, nor any of their respective officers,
directors, members, employees, affiliates, agents or representatives shall have
any liability to any other such person under the Healthvision Merger Agreement
or in connection
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with such termination. The parties acknowledge that the voting agreements
(including any related proxies) entered into by the Healthvision and Parent
stockholders (including, without limitation, parties hereto) in connection with
the Healthvision Merger Agreement shall terminate in accordance with their terms
concurrently with the execution and delivery of this Agreement.
3. Termination of Agreement Regarding Registration Rights. Parent,
Eclipsys, Healthvision, VHA and UHC hereby terminate the letter agreement
regarding registration rights among them, dated March 30, 2000, by mutual
consent.
4. Commercial Transaction. Concurrently with the execution of this
Agreement, Parent and Healthvision are entering into a Co-Marketing and
Distribution Agreement (the "COMMERCIAL AGREEMENT").
5. Releases. Parent, Merger Sub, Eclipsys, Healthvision, Novation, VHA,
UHC and HPPI each hereby release and discharge each other party and such party's
respective officers, directors, members, employees, affiliates, agents and
representatives from any and all claims, actions, liabilities, obligations,
duties or causes of action based upon or arising out of the Eclipsys Merger
Agreement and the Healthvision Merger Agreement, the transactions contemplated
thereby and the terminations thereof; provided, that such release does not and
shall not extend to claims, actions, liabilities, obligations, duties or causes
of action based upon or arising out of (a) this Agreement, (b) the Amended and
Restated Outsourcing and Operating Agreement, dated as of the date hereof (the
"OUTSOURCING AGREEMENT"), among Parent, Novation, VHA, UHC and HPPI, the Amended
and Restated Common Stock and Warrant Agreements, dated as of the date hereof
(the "STOCK AGREEMENTS"), between Parent and VHA, and Parent and UHC,
respectively, the Commercial Agreement or the Confidentiality Agreements (as
defined below) (it being understood that no party hereto undertakes any
obligation pursuant to any of the foregoing agreements to which it is not a
party), and (c) transactions or dealings undertaken in the ordinary course of
business between or among any such parties.
6. Standstill. From the date of this Agreement through the two-year
anniversary of the date of this Agreement, neither Parent nor any of its
affiliates will, directly or indirectly, acquire or offer to acquire shares of
capital stock of (a) Eclipsys, or make any proposal to its Board of Directors,
or publicly announce any proposal, relating to, or otherwise participate in, any
merger, consolidation, sale or transfer of assets, proxy solicitation, tender
offer or similar transaction involving Eclipsys, without Eclipsys's prior
written consent, or (b) Healthvision, or make any proposal to its Board of
Directors, or publicly announce any proposal, relating to, or otherwise
participate in, any merger, consolidation, sale or transfer of assets, proxy
solicitation, tender offer or similar transaction involving Healthvision,
without Healthvision's prior written consent. From the date of this Agreement
through the two-year anniversary of the date of this Agreement, neither Eclipsys
nor any of its affiliates will, directly or indirectly, acquire or offer to
acquire shares of capital stock of Parent, or make any proposal to Parent's
Board of Directors, or publicly announce any proposal, relating to, or otherwise
participate in, any merger, consolidation, sale or transfer of assets, proxy
solicitation, tender offer or similar transaction involving Parent, without
Parent's prior written consent. From the date of this Agreement through the
two-year anniversary of the date of this Agreement, neither Healthvision nor any
of
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its affiliates will, directly or indirectly, acquire or offer to acquire shares
of capital stock of Parent, or make any proposal to Parent's Board of Directors,
or publicly announce any proposal, relating to, or otherwise participate in, any
merger, consolidation, sale or transfer of assets, proxy soliciation, tender
offer or similar transaction involving Parent, without Parent's prior written
consent. For purposes of this Agreement, VHA is not deemed to be an "affiliate"
of Healthvision.
7. Public Disclosure. The parties hereto have agreed to the text of the
press releases (the "PRESS RELEASES") announcing the signing of this Agreement.
The parties hereto each agree not to issue any further press release or
otherwise make any public statement with respect to (i) the Eclipsys Merger
Agreement or the Healthvision Merger Agreement, the terminations thereof or this
Agreement, or (ii) for a period of 60 days following the date hereof, the other
parties hereto, or the business, strategy or management of such parties, except
in either case for any such press release or public statement that such party is
advised by its outside counsel is required by law or any listing agreement with
a national securities exchange, and in each such case occurring prior to the one
year anniversary of the date hereof in the case of clause (i), or 60 days in the
case of clause (ii), following notice to the other parties containing the text
of such release or statement. Nothing contained herein shall limit or apply to
statements made in filings or testimony in connection with any judicial or
administrative proceeding or statements in such party's public filings pursuant
to the Securities Exchange Act of 1934, as amended, which are identical in all
material respects to statements contained in the Press Releases, or which are
factual descriptions of the Eclipsys Merger Agreement, the Healthvision Merger
Agreement, the terminations thereof or this Agreement, or expenses incurred in
connection with the foregoing. In addition, the foregoing shall not restrict
statements by Eclipsys or Healthvision with respect to the other such party or
such party's business, strategy or management.
8. Confidentiality. Parent and Eclipsys acknowledge that they have
previously executed a mutual nondisclosure agreement, dated as of March 5, 2000,
and Parent and Healthvision acknowledge that they have previously executed a
mutual nondisclosure agreement, dated as of March 5, 2000 (together, the
"CONFIDENTIALITY AGREEMENTS"), each of which shall continue in full force and
effect in accordance with their respective terms.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon delivery either personally or by national
courier service, or sent via facsimile (receipt confirmed) to the parties at the
following addresses or facsimile numbers (or at such other address or facsimile
numbers for a party as shall be specified by like notice):
IF TO PARENT OR MERGER SUB: WITH A COPY TO:
Neoforma.com, Inc. Fenwick & West LLP
3255-7 Scott Boulevard Two Palo Alto Square
Santa Clara, California 95054 Palo Alto, California 94306
Facsimile: (408) 549-6399 Facsimile: (650) 494-1417
Attn: General Counsel Attn: Gordon K. Davidson
Douglas N. Cogen
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IF TO ECLIPSYS: WITH A COPY TO:
Eclipsys Corporation Hale and Dorr LLP
777 East Atlantic Avenue, Suite 200 60 State Street
Delray Beach, Florida 33483 Boston, Massachusetts 02109
Facsimile: (561) 243-8850 Facsimile: (703) 654-7100
Attn: Chief Executive Officer Attn: John Burgess
Donald L. Toker
IF TO HEALTHVISION: WITH A COPY TO:
HEALTHvision, Inc. Hogan & Hartson, LLP
6330 Commerce Dr., Suite 100 555 13th Street, N.W.
Irving, Texas 75063 Washington, D.C. 20004
Facsimile: (972) 819-4709 Facsimile: (202) 637-5910
Attn: Chief Executive Officer Attn: Christopher J. Hagan
IF TO NOVATION OR HPPI: WITH A COPY TO:
Novation, LLC Baker Botts L.L.P.
125 East John Carpenter Freeway 2001 Ross Avenue
Irving, Texas 75062 Dallas, Texas 75201-2980
Facsimile: (972) 581-5778 Facsimile: (214) 953-6503
Attn: General Counsel Attn: Sarah M. Rechter
IF TO VHA: WITH A COPY TO:
VHA, Inc. Skadden, Arps, Slate, Meagher & Flom LLP
220 East Las Colinas Boulevard Four Times Square
Irving, Texas 75039-5500 New York, New York 10036
Facsimile: (972) 830-0391 Facsimile: (212) 735-2000
Attn: Chief Financial Officer Attn: Nancy A. Lieberman
IF TO UHC: WITH A COPY TO:
University HealthSystem Consortium McDermott, Will & Emery
2001 Spring Road, Suite 700 227 West Monroe Street
Oak Brook, Illinois 60523 Chicago, Illinois 60606
Facsimile: (630) 954-4730 Facsimile: (312) 984-7700
Attn: Executive Vice President Attn: Virginia H. Holden
General Counsel
10. Entire Agreement. This Agreement, the Commercial Agreement, and the
Confidentiality Agreements constitute the entire agreement among the parties
with respect to the subject matter hereof (it being acknowledged that the
Outsourcing Agreement and the Stock Agreements involve other subject matter) and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
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11. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
13. Expenses. All fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees or expenses.
14. Representations and Warranties. Each of the parties hereto
represents and warrants for the benefit of each of the other parties hereto that
(a) it is an entity duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization; (b) it has all requisite power
and authority to enter into this Agreement and to perform its obligations
hereunder; (c) its execution and delivery of this Agreement and the performance
of obligations hereunder have been duly authorized by all necessary action and,
assuming the due execution and delivery by the other parties hereto, as
applicable, this Agreement constitutes the valid and binding obligation of such
party, enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy and other similar laws affecting the
rights of creditors generally and general principles of equity; (d) its
execution and delivery of this Agreement and the performance of its obligations
hereunder will not conflict with or violate such party's organizational
documents or conflict with or violate any law, rule, regulation, order, judgment
or decree applicable to such party that would materially impair such party's
ability to perform its obligations hereunder; and (e) no consent, approval,
order or authorization of, or registration, declaration or filing with any
court, administrative agency or other governmental authority is required to be
obtained or made by such party in connection with this Agreement, the failure of
which to obtain or make would materially impair such party's ability to perform
its obligations hereunder.
15. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
16. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed and
delivered by each of the parties, it being understood that all parties need not
sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Termination
Agreement to be executed by their duly authorized respective officers as of the
date first written above.
NEOFORMA.COM, INC. NOVATION, LLC
By: /s/ FREDERICK RUEGSEGGER By: /s/ MARK MCKENNA
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Name: Frederick Ruegsegger Name: Mark McKenna
Title: Chief Financial Officer Title: President
NEOIII ACQUISITION CORP. VHA INC.
By: /s/ FREDERICK RUEGSEGGER By: /s/ CURT NONOMAQUE
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Name: Frederick Ruegsegger Name: Curt Nonomaque
Title: Chief Financial Officer Title:
ECLIPSYS CORPORATION UNIVERSITY HEALTHSYSTEM CONSORTIUM
By: /s/ Harvey J. Wilson By: /s/ ROBERT J. BAKER
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Name: Harvey J. Wilson Name: Robert J. Baker
Title: Chairman and CEO Title: President and Chief Financial Officer
HEALTHVISION, INC. HEALTHCARE PURCHASING PARTNERS INTERNATIONAL, LLC
By: /s/ SCOTT DECKER By: /s/ MARK MCKENNA
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Name: Scott Decker Name: Mark McKenna
Title: CEO Title: Chief Executive Officer