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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934*
Eclipsys Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
278856109
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(CUSIP Number)
- --------------------------------------------------------------------------------
Wilfam, L.P. with a copy to:
100 Chestwynd Drive Hale and Dorr LLP
Rosemont, PA 19010 11951 Freedom Drive
Attention: M.Donald Wright Reston, VA 20190
(601) 527-7460 Attention: Donald L. Toker
(703) 654-7028
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 30, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
[ ].
*The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act.
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SCHEDULE 13D
<TABLE>
<S> <C>
- ------------------------------------
CUSIP NO. 278856109
---------
- ------------------------------------
- --------------------------------------------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WILFAM, L.P.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
2 (b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS OO (1)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION STATE OF DELAWARE
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7 SOLE VOTING POWER
NUMBER
OF 2,109,093
SHARES ------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 2,109,093(2)
EACH ------------------------------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 2,109,093
------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,109,093
- --------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,109,093
- --------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
- --------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
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(2) See Item 3 below
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ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock, par value $0.01
per share ("ECLIPSYS COMMON STOCK" or "ISSUER'S COMMON STOCK"), of Eclipsys
Corporation, a Delaware corporation ("ECLIPSYS" or the "ISSUER"). The 2,109,093
shares of the Issuer's Common Stock that are the subject of this statement will
be referred to as the "SHARES" throughout this statement. The principal
executive offices of the Issuer are located at 777 East Atlantic Avenue, Suite
200, Delray Beach, Florida 33483.
ITEM 2. IDENTITY AND BACKGROUND
This statement is filed on behalf of Wilfam, L.P., a Delaware
limited partnership ("WILFAM"). Wilfam is a family limited partnership. The
address of Wilfam's principal business and its principal office is 100 Chestwynd
Drive, Rosemont, PA 19010.
Set forth on Schedule A to the Statement is the name, business
address, present principal occupation or employment and citizenship for each
general partner of Wilfam pursuant to Item 2(a), (b), (c) and
(d) and is incorporated herein by reference.
During the last five years, neither Wilfam nor, to the best
of Wilfam's knowledge, any person named on Schedule A has been: (a) convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors);
or (b) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which, he, she or it was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or State securities laws or finding
any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Harvey J. Wilson transferred the shares of Eclipsys Common
Stock now owned by Wilfam to Wilfam in July of 1996.
As an inducement for Neoforma.com, Inc. ("Neoforma") to enter
the Merger Agreement (as defined in Item 4), Wilfam entered into a Voting
Agreement representing 2,109,093 of the outstanding shares of Eclipsys Common
Stock (see Item 4). Neoforma did not pay additional consideration to Wilfam in
connection with the execution and delivery of such Voting Agreements beyond the
consideration described in the Merger Agreement. Upon consummation of the Merger
(as defined in Item 4), the shares of Eclipsys Common Stock owned by Wilfam
will be subject to the same exchange ratio as shares held by all other
stockholders of Eclipsys Common Stock. Based upon the number of shares of
Eclipsys Common Stock outstanding as of March 14, 2000 (as represented by
Eclipsys in the Merger Agreement), the number of shares of Eclipsys Common Stock
subject to Wilfam's Voting Agreement represents 5.8% of the outstanding
shares of Eclipsys Common Stock.
ITEM 4. PURPOSE OF TRANSACTION
(a)-(b) Pursuant to an Agreement and Plan of Merger dated as
of March 30, 2000 (the "MERGER Agreement") by and between
Neoforma, NeoIII Acquisition Corp., a Delaware corporation and
a wholly owned first-tier subsidiary of Neoforma ("MERGER
SUB") and Eclipsys, and subject to the conditions set forth
therein (including approval by stockholders of Neoforma and
Eclipsys), Merger Sub shall
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be merged with and into Eclipsys, the separate corporate
existence of Merger Sub shall cease, and Eclipsys shall
continue as the surviving corporation (such events
constituting the "MERGER"). Once the Merger is consummated,
Merger Sub will cease to exist as a corporation and all the
property, rights, privileges, powers and franchises of
Eclipsys and Merger Sub shall vest in Eclipsys with Eclipsys
remaining as the surviving corporation (the "SURVIVING
CORPORATION"). As a result of the Merger, each outstanding
share of Eclipsys Common Stock, other than shares of Common
Stock held by Eclipsys or owned by Merger Sub, Neoforma or any
direct or indirect wholly owned subsidiary of Eclipsys or of
Neoforma, will be converted into the right to receive 1.344
(the "EXCHANGE RATIO") of a share of common stock, par value
$0.001 per share, of Neoforma ("NEOFORMA COMMON STOCK"), and
each outstanding option to purchase Eclipsys Common Stock
(each, an "ASSUMED OPTION") under Eclipsys's 1996 Stock Option
Plan, 1998 Stock Incentive Plan and 1999 Stock Incentive Plan
(collectively, the "ECLIPSYS STOCK OPTION PLANS") will be
assumed by Neoforma. Each Assumed Option so assumed by
Neoforma will continue to have, and be subject to, the same
terms and conditions set forth in the Eclipsys Stock Option
Plans pursuant to which such option was issued immediately
prior to the Merger (including, without limitation, any
repurchase rights or vesting provisions), except that (i) each
Assumed Option will be exercisable (or will become exercisable
in accordance with its terms) for that number of whole shares
of Neoforma Common Stock equal to the product of the number of
shares of Eclipsys Common Stock that were issuable upon
exercise of such option immediately prior to the Merger
multiplied by the Exchange Ratio, rounded down to the nearest
whole number of shares of Neoforma Common Stock and (ii) the
per share exercise price for the shares of Neoforma Common
Stock issuable upon exercise of such Assumed Option will be
equal to the quotient determined by dividing the exercise
price per share of Eclipsys Common Stock at which such option
was exercisable immediately prior to the Merger by the
Exchange Ratio, rounded up to the nearest whole cent.
As an inducement for Neoforma to enter into the Merger
Agreement and in consideration thereof, certain stockholders
of Eclipsys, includig Wilfam, (the "STOCKHOLDERS") entered
into Voting Agreements, dated as of March 30, 2000, with
Neoforma (collectively, the "VOTING AGREEMENTS") whereby the
Stockholders agreed, severally and not jointly, to vote all of
the shares of Eclipsys Common Stock beneficially owned by them
in favor of the approval and adoption of the Merger Agreement
and the approval of the Merger and the other actions
contemplated by the Merger Agreement and any actions required
in furtherance thereof and against approval of any proposal
made in opposition to or in competition with the consummation
of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger
Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Eclipsys
under the Merger Agreement. Concurrently with the execution of
the Voting Agreements, each of the Stockholders delivered to
Neoforma an irrevocable proxy (each a "PROXY," together the
"PROXIES") granting Neoforma the power to vote all
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of the shares of Eclipsys Common Stock beneficially owned by
them in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger and the other actions
contemplated by the Merger Agreement and any actions required
in furtherance thereof and against approval of any proposal
made in opposition to or in competition with the consummation
of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger
Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Eclipsys
under the Merger Agreement. The Stockholders retained the
power to vote the Shares on all other matters. Neoforma did
not pay additional consideration to any Stockholder in
connection with the execution and delivery of the Voting
Agreements and Proxies.
(c) Other than as a result of the Merger described in Item
4(a)-(b) above, Wilfam does not presently have any plans or
proposals that relate to or would result in a sale or
transfer of a material amount of assets of the Issuer or of
any of its subsidiaries.
(d) Upon consummation of the merger, the directors of the
Surviving Corporation shall be the current directors of the
Merger Sub until their respective successors are duly elected
or appointed and qualified. The initial officers of the
Surviving Corporation shall be the current officers of Merger
Sub, until their respective successors are duly appointed.
(e) Other than as a result of the Merger described in Item
4(a)-(b) above, Wilfam does not presently have any plans or
proposals which relate to or would result in any material
change in the present capitalization or dividend policy of the
Issuer.
(f) Wilfam does not presently have any plans or proposals that
relate to or would result in any other material change in the
Issuer's business or corporate structure.
(g) Pursuant to the Voting Agreements entered into by Neoforma and
certain of the stockholders of Eclipsys, the Stockholders
agreed to vote all of the shares of Eclipsys Common Stock
owned beneficially by them against approval of any proposal
made in opposition to or in competition with the consummation
of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger
Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Eclipsys
under the Merger Agreement.
(h)-(i) Upon the closing of the Merger, Eclipsys Common Stock will be
deregistered under the Act and delisted from the Nasdaq Stock
Market.
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(j) Other than as set forth above, Wilfam does not presently have
any plans or proposals that relate to or would result in
an action similar to any of those enumerated above.
References to, and descriptions of, the Voting Agreements and
the Proxies as set forth herein are qualified in their
entirety by reference to the copy of the form of Voting
Agreement, included as Exhibit A to this Schedule 13D, and
incorporated herein in their entirety where such references
and descriptions appear.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a)-(b) Wilfam is the beneficial owner of at least 2,109,093 shares of
Eclipsys Common Stock. Such Eclipsys Common Stock constitutes
approximately 5.8% of the issued and outstanding shares of
Eclipsys Common Stock based on the number of shares of
Eclipsys Common Stock outstanding as of March 14, 2000 (as
represented by Eclipsys in the Merger Agreement). Neoforma may
be deemed to have the sole power to vote the Shares with
respect to those matters described above. However, Neoforma
does not have the power to dispose of these shares and, other
than the power to vote conferred by the Voting Agreements, is
not entitled to any rights as a stockholder of Eclipsys as to
these shares.
(c) Except as set forth herein, Wilfam has not effected any
transaction in the Issuer's Common Stock during the past 60
days, and, to the best of its knowledge, no person named in
Schedule A has effected any transactions in the Issuer's
Common Stock during the past 60 days.
(d) No other person is known to Wilfam to have the right to
receive or the power to direct the receipt of dividends from,
or proceeds from the sale of, any shares of Eclipsys Common
Stock.
(e) Not applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Other than the Merger Agreement and the exhibits thereto,
including the Voting Agreements, to the knowledge of Wilfam, none of the parties
named in Item 2 to this Statement are a party to any contract, arrangement,
understanding or relationship of the type specified by this Item 6 with respect
to any Eclipsys securities.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following documents are filed as exhibits hereto:
Exhibit 1: Form of Voting Agreement, dated as of
March 30, 2000, between the Issuer and Wilfam
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: April 10, 2000
WILFAM, L.P.
By: /s/ M. Donald Wright
--------------------------------
Name: M. Donald Wright
Title: President and Trustee
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SCHEDULE A
CORPORATE GENERAL PARTNER OF WILFAM, L.P.
Wilfam, Inc. Delaware Corporation
100 Chestwynd Dr.
Rosemont, PA 19010
Executive Officers and Directors of Wilfam, Inc.
<TABLE>
<CAPTION>
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION CITIZENSHIP
- ------------------------- ------------------------------- -----------
<S> <C> <C>
Harvey J. Wilson Chairman of the Board of U.S.A.
777 East Atlantic Ave. Directors and Chief
Suite 200 Executive Officer of
Delray Beach, FL 33483 Eclipsys Corporation
(president and director)
M. Donald Wright Financial and Estate U.S.A.
100 Chestwynd Dr. Planner, Wright
Rosemont, PA 19010 Consultants
(treasurer and director)
Gregory L. Wilson Chief Financial Officer U.S.A.
777 East Atlantic Ave. and Treasurer of
Suite 200 Eclipsys Corporation
Delray Beach, FL 33483
(secretary and director)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Document Description
------- --------------------
<S> <C>
Exhibit 1: Form of Voting Agreement entered into between
Neoforma and Wilfam
</TABLE>
12
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EXHIBIT 1
Execution Version
COMPANY VOTING AGREEMENT
This COMPANY VOTING AGREEMENT (the "AGREEMENT") is made and entered
into as of March 30, 2000, between Neoforma.com, Inc., a Delaware corporation
("PARENT"), and the undersigned stockholder ("STOCKHOLDER") of Eclipsys
Corporation, a Delaware corporation ("COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent,
Company and NeoIII Acquisition Corp., a Delaware corporation and a wholly-owned
first-tier subsidiary of Parent ("MERGER SUB"), are entering into an Agreement
and Plan of Merger (the "MERGER AGREEMENT") which provides for the merger of
Merger Sub with and into Company (the "MERGER"). Pursuant to the Merger, shares
of capital stock of Company will be converted into shares of Parent Common Stock
on the basis described in the Merger Agreement. Capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement.
B. Stockholder is the record holder of such number of outstanding
shares of capital stock of Company as is indicated on the final page of this
Agreement.
C. As a material inducement to enter into the Merger Agreement,
Parent desires Stockholder to agree, and Stockholder is willing to agree, to
vote the Shares (as defined below), and such other shares of capital stock of
Company over which Stockholder has voting power, so as to facilitate
consummation of the Merger.
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES
1.1 Definitions. For purposes of this Agreement:
(a) Shares. The term "SHARES" shall mean all
issued and outstanding shares of Company Common Stock owned of record or
beneficially by Stockholder or over which Stockholder exercises voting power, in
each case, as of the record date for persons entitled (i) to receive notice of,
and to vote at the meeting of the stockholders of Company called for the purpose
of voting on the matters referred to in Section 1.2, or (ii) to take action by
written consent of the stockholders of Company with respect to the matters
referred to in Section 1.2. Stockholder agrees that any shares of capital stock
of Company that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership or over which Stockholder exercises
voting power after the execution of this Agreement and prior to the date of
<PAGE> 2
termination of this Agreement pursuant to Section 3 below shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares on the date hereof.
(b) Subject Securities. The term "SUBJECT
SECURITIES" shall mean: (i) all securities of Company (including all shares of
Company Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock beneficially owned by Stockholder as of the date
of this Agreement; and (ii) all additional securities of Company (including all
additional shares of Company Common Stock and all additional options, warrants
and other rights to acquire shares of Company Common Stock) of which Stockholder
acquires ownership during the period from the date of this Agreement through the
earlier of termination of this Agreement pursuant to Section 3 below or the
record date for the meeting at which stockholders of Company are asked to vote
upon approval of the Merger Agreement and the Merger.
(c) Transfer. Stockholder shall be deemed to
have effected a "TRANSFER" of a security if Stockholder directly or indirectly:
(i) sells, pledges, encumbers, transfers or disposes of, or grants an option
with respect to, such security or any interest in such security; or (ii) enters
into an agreement or commitment providing for the sale, pledge, encumbrance,
transfer or disposition of, or grant of an option with respect to, such security
or any interest therein.
1.2 Agreement to Vote Shares. Stockholder hereby
covenants and agrees that, during the period commencing on the date hereof and
continuing until the first to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement (the "EFFECTIVE TIME") and (ii) termination of this Agreement in
accordance with its terms, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the stockholders of Company,
however called, or in connection with any written consent of the stockholders of
Company, Stockholder will appear at the meeting or otherwise cause the Shares to
be counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Shares:
(1) in favor of the approval and adoption of the Merger
Agreement in the form entered into on the date hereof and the approval
of the Merger and the other actions contemplated by the Merger
Agreement and any actions required in furtherance thereof;
(2) against approval of any proposal made in opposition
to or in competition with the consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as
defined in the Merger Agreement) or any action or agreement that would
result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Company under the
Merger Agreement or of Stockholder under this Agreement.
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Stockholder further agrees not to enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 1.2.
1.3 Transfer and Other Restrictions. (a) Prior to the
termination of this Agreement, Stockholder agrees not to, directly or
indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, Transfer or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, Transfer or other
disposition of any or all of the Subject Securities or any interest
therein except as provided in Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any
of the Subject Securities into a voting trust or enter into a voting
agreement or arrangement with respect to the Subject Securities except
as provided in this Agreement; or
(iii) take any other action that would make any
representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder
from performing its obligations under this Agreement.
(b) To the extent Stockholder is, as of the date hereof,
party to a contract or agreement that requires Stockholder to Transfer Subject
Securities to another person or entity (excluding a contract or agreement
pledging Subject Securities to Company), Stockholder will not effect any such
Transfer unless and until the transferee agrees to be bound by and executes an
agreement in the form of this Agreement with respect to the Subject Securities
to be Transferred. Nothing herein shall prohibit Stockholder from exercising (in
accordance with the terms of the option or warrant, as applicable) any option or
warrant Stockholder may hold; provided that the securities acquired upon such
exercise shall be deemed Subject Securities and Shares hereunder.
1.4 Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent a proxy in the form
attached hereto as Exhibit I (the "PROXY"), which shall be irrevocable to the
extent set forth therein, with respect to the Shares.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
(a) Stockholder is the record and beneficial owner of, or
Stockholder exercises voting power over, the shares of Company capital stock
indicated on the final page of this Agreement, which, on and as of the date
hereof, are free and clear of any Encumbrances that would adversely affect the
ability of Stockholder to carry out the terms of this Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares beneficially
owned by such Stockholder and, except as set forth on such signature pages, the
Stockholder holds no
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options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has no other interest in or voting rights with
respect to any securities of the Company.
(b) Stockholder has the requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement by such Stockholder
and the consummation by such Stockholder of the transactions contemplated by
this Agreement have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person). This
Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation which would
result in the creation of any Encumbrance upon any of the Shares owned by such
Stockholder under, any provision of Stockholder's charter documents (if
applicable), applicable law or regulation or of any agreement, judgment,
injunction, order, decree, or other instrument binding on such Stockholder or
any Shares owned by such Stockholder. No consent, approval, order or
authorization of, or registration, declaration or filing with or exemption by
any Governmental Entity is required by or with respect to such Stockholder in
connection with the execution and delivery of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated by this
Agreement, except for applicable requirements, if any, of Sections 13 and 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder. If this Agreement is being executed in a representative or fiduciary
capacity, the person signing this Agreement has full power and authority to
enter into and perform such Agreement.
3. TERMINATION
This Agreement shall terminate and shall have no further force or
effect as of the first to occur of (i) the Effective Time and (ii) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article VII thereof. Notwithstanding any other provision hereof, this Agreement
shall terminate in the event that the Merger Agreement is modified in a manner
that is materially adverse to Stockholder without Stockholder's consent.
4. MISCELLANEOUS
4.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither
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this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by either of the parties without prior written consent of
the other. Any purported assignment in violation of this Section shall be void.
4.3 Amendments and Modification. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
4.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
4.5 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given upon delivery
either by commercial delivery service, or sent via facsimile (receipt confirmed)
to the parties at the following address or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
If to Parent:
Neoforma.com, Inc.
3255-7 Scott Boulevard
Santa Clara, California 95054
Attn: Chief Financial Officer
Facsimile: (408) 549-6211
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Attn: Gordon K. Davidson
Douglas N. Cogen
Facsimile: (650) 494-1417
If to Stockholder, to the address for notice set forth on the
last page hereof.
Any party hereto may by notice so given provide and change its address for
future notices hereunder. Notice shall conclusively be deemed to have been given
when personally delivered or when deposited in the mail in the manner set forth
above.
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4.6 Governing Law. This Agreement shall be governed by
and construed exclusively in accordance with the laws of the State of Delaware,
excluding that body of law relating to conflict of laws.
4.7 Entire Agreement. This Agreement and the Merger
Agreement constitute and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersede any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.9 Captions. The captions to sections of this Agreement
have been inserted for identification and reference purposes only and shall not
be used to construe or interpret this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Company Voting
Agreement to be executed by their duly authorized respective officers as of the
date first above written.
NEOFORMA.COM, INC.
By:
--------------------------------
Name:
Title:
STOCKHOLDER:
------------------------------------
By:
--------------------------------
Name:
Title:
Stockholder's Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Outstanding shares of Company capital
stock beneficially owned by
Stockholder:
------------------------
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder (the "STOCKHOLDER") of Eclipsys
Corporation, a Delaware corporation (the "Company"), hereby irrevocably appoints
and constitutes the members of the Board of Directors of Neoforma.com, Inc., a
Delaware corporation ("PARENT"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 the shares of capital stock of Company
which are listed below (the "SHARES"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof and
prior to the date this proxy terminates, to vote the Shares as follows: the
agents and proxies named above are empowered at any time prior to termination of
this proxy to exercise all voting and other rights (including, without
limitation, the power to execute and deliver written consents with respect to
the Shares) of the undersigned at every annual, special or adjourned meeting of
Company stockholders, and in every written consent in lieu of such a meeting, or
otherwise, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among Parent, NeoIII Acquisition Corp. ("MERGER SUB") and
Company in the form entered into on the date hereof, and the approval of the
merger of Merger Sub with and into Company (the "MERGER"), and (ii) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger Agreement) or any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Company under the Merger Agreement or of the Stockholder under the Company
Voting Agreement between Parent and Stockholder (the "VOTING AGREEMENT").
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant to the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. Upon the execution hereof, all prior proxies given
by the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March 30, 2000.
Stockholder:
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By:
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Name and Title
Shares of Company capital stock beneficially owned:
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