<PAGE>
SECURITIES AND UNITED STATES EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13 D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. ________)(1)
ADATOM.COM, INC.
(previously known as
HealthCore Medical Solutions, Inc.)
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
42220B101
(CUSIP Number)
Neal J. Polan
Insight Management Corp.
405 Lexington Avenue
50th Floor
New York, New York 10174
212-808-5511
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 27, 1999, July 1, 1999 and October 13, 1999
(Dates of Events Which Require 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(e), 13d-1 (f) or 13d-1 (g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
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(1) The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
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 or otherwise subject to the liabilities of the section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
(Page 1 of 9 Pages)
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CUSIP No. 42220B101
13D
1. NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NEAL J. POLAN
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
PF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION: United States of America
7. SOLE VOTING POWER
1,795,400 See Item 5(a)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY 25,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH
REPORTING 901,400 See Item 5(a)
PERSON WITH 10. SHARED DISPOSITIVE POWER
25,000
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY THE REPORTING
PERSON
926,400 See Item 5(a)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES
CERTAIN SHARES [X]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
6.4%
14. TYPE OF REPORTING PERSON
IN
(Continued on following pages)
(Page 2 of 9 Pages)
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CUSIP No. 42220B101
1. Security and Issuer.
The securities to which this Schedule 13D relate are the shares of
Common Stock, $.01 par value ("Common Stock"), of Adatom.com, Inc. (the
"Issuer"), a corporation organized under the laws of the State of Delaware. The
address of the Issuer's principal executive office is 920 Hillview Court, Suite
160, Milpitas, California 95035.
The Issuer is the surviving corporation of the merger (the "Merger") of
Adatom, Inc., a privately-held California corporation, with and into HealthCore
Medical Solutions, Inc. ("HealthCore"), which Merger became effective October
13, 1999. References herein to HealthCore shall mean the Issuer prior to the
effective time of the Merger. In the Merger, HealthCore changed its name to
"Adatom.com, Inc." and Adatom stockholders received newly issued shares of the
Issuer equal to approximately 78.3% of the total common stock outstanding of the
Issuer. This outstanding number of shares does not include 720,000 shares of
common stock owned by HealthCore stockholders, which shares have been held in
escrow for approximately two years. The Issuer has announced that it is
presently anticipated that these shares will be retired and canceled in the next
few months upon receipt of stockholder approval. Prior to the Merger, HealthCore
had two classes of common stock: class A common stock, which was
publicly-traded; and class B common stock. At the closing of the Merger, all of
the outstanding shares of class B common stock were converted share for share
into class A common stock and in the Merger, the class A common stock was
retitled "Common Stock."
2. Identity and Background.
(a) The person filing this statement is Neal J. Polan (the "Reporting
Person") and he is over the age of 21.
(b) The business address of the Reporting Person is Insight Management
Corp., 405 Lexington Avenue, 50th Floor, New York, New York 10174.
(c) The Reporting Person was the Chief Executive Officer of the Issuer
from April 1997 until October 13, 1999, the effective date of the Merger. The
Reporting Person devoted approximately 50% of his business time to activities on
behalf of HealthCore. The Reporting Person served as Chairman of the Board of
HealthCore from January 1997 until the effective date of the Merger and
currently serves as a director of the Issuer. The Reporting Person has served as
President and Chief Executive Officer of Insight Management Corp., a consulting
and investment company, since 1978.
(d) During the last five years, the Reporting Person has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, the Reporting Person has not been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which proceeding he was or is subject to a judgment,
decree or final order enjoining future violation of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
(Continued on following pages)
(Page 3 of 9 Pages)
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CUSIP No. 42220B101
3. Source and Amount of Funds or Other Consideration.
The following transactions were entered into in connection with the
Merger.
(a) On April 27, 1999, HealthCore entered into a non-binding letter of
intent (the "Letter") with Adatom, then a privately held California corporation,
contemplating, among other things, the Merger. The Letter further provided that
HealthCore would divest its current operating business prior to consummation of
the Merger.
The Letter provided that as part of the divestiture of its existing
business, HealthCore will terminate its employment relationships with all of its
employees, including its key executives, the Reporting Person, HealthCore's then
Chairman of the Board and Chief Executive Officer, and David L. Mullikin,
HealthCore's then President and Chief Operating Officer, and will settle any
contractual obligations to such employees.
Prior to the execution of the Letter, HealthCore employed the Reporting
Person under an employment agreement (the "Employment Agreement") expiring on
November 30, 2000, providing for an annual base salary of $200,000, together
with other compensation and benefits. The Employment Agreement made no provision
for the termination thereof without cause. In furtherance of the transactions
contemplated by the Letter, by letter amendment dated April 27, 1999, the
Employment Agreement was amended to provide the Issuer with the right to
terminate the Employment Agreement at any time, without cause, upon the
expiration of one hundred twenty (120) days following the date of the execution
of the letter amendment, whereupon the Issuer will pay to the Reporting Person
the lesser of (a) $150,000, or (b) sixty (60%) percent of the present value of
the remaining compensation and benefits due under the terms of the Employment
Agreement on the date of its termination. In consideration for this amendment,
HealthCore issued the Reporting Person 165,000 shares of Class A common stock of
HealthCore ("Class A Common Stock"), which has been reclassified in the Merger
into "Common Stock."
(b) On October 12, 1999, the Reporting Person entered into a two-year
employment agreement with Adatom which provides for an annual salary of $50,000,
reimbursement of business expenses, health insurance and related benefits. The
Reporting Person is required to work up to 60 hours per month as an advisor for
the Issuer in mergers, acquisitions and strategic alliances. In connection with
the employment agreement, the Reporting Person received such number of shares of
common stock of Adatom convertible into 350,000 shares of Common Stock in the
Merger in partial consideration for a promissory note in the amount of $320,760.
As partial consideration for his services rendered under the employment
agreement, the promissory note will be forgiven six months after the closing
date of the Merger.
(c) In September 1997, in connection with his employment with
HealthCore, the Reporting Person received a warrant to purchase 142,000 shares
of HealthCore class A common stock at $1.00 per share. The warrant would become
exercisable if certain market price thresholds or operating performance-based
criteria of HealthCore are met. In connection with the Merger, on October 12,
1999, the Reporting Person exchanged that warrant for 28,400 shares of class A
common stock.
(Continued on following pages)
(Page 4 of 9 Pages)
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CUSIP No. 42220B101
(d) In connection with HealthCore's initial public offering in October
1997 (the "IPO"), the pre-IPO stockholders of HealthCore placed, on a pro rata
basis, 900,000 shares into escrow pending HealthCore's attainment of certain
earnings thresholds or per share stock price thresholds. Mr. Polan individually
placed 126,000 shares of class B common stock in escrow and as custodian for his
son, Barrett Polan, placed an additional 36,000 shares of class B common stock
in escrow. If these thresholds are not met, the shares subject to the escrow
agreement will be returned to HealthCore and cancelled. HealthCore's management
believed that while operating the healthcare benefits business, it was unlikely
that the conditions of the escrow agreement would be met. In connection with the
Merger, the escrow stockholders, including the Reporting Person, entered into an
agreement to terminate the Escrow Agreement, and subject to stockholder
approval, the escrow agreement terminates; the escrow stockholders will receive
20% of their shares free of the escrow agreement trading restrictions and the
remaining 80% of the shares will be cancelled and returned to HealthCore.
Approval of the termination of the escrow agreement requires the
approval of at least two-thirds of the shares of Common Stock excluding all
shares of Common Stock held by escrow stockholders whether or not those shares
are subject to the escrow agreement. The termination of the escrow agreement
results in the cancellation of 720,000 shares held in escrow.
There were not a sufficient number of votes cast to approve termination
of the escrow agreement at the Special Meeting of Stockholders of HealthCore
that took place on October 11, 1999. The former Adatom stockholders have agreed
to vote all of their shares of the Issuer to approve the termination of the
escrow agreement at the first annual or special meeting of the stockholders of
the Issuer following the Merger.
All escrow stockholders have given Neal Polan a proxy to vote all
shares of class A common stock they own, including all shares held in escrow,
until the earlier of January 1, 2000 or termination of the Escrow Agreement.
4. Purpose of Transaction.
The Reporting Person has acquired the shares of Common Stock
beneficially owned by him (other than the shares with respect to which he has
received proxies from stockholders who are parties to the Escrow Agreement) for
investment purposes. The Reporting Person may from time to time acquire
additional shares of Common Stock in the open market or in privately negotiated
transactions, subject to availability of the shares of Common Stock at prices
deemed favorable, the Company's business or financial condition and to other
factors and conditions the Reporting Persons deem appropriate. Alternatively,
the Reporting Person may sell all or a portion of his shares of Common Stock in
the open market or in privately negotiated transactions.
The Reporting Person does not have any present plans or proposals that
relate to or would result in: (a) the acquisition by any person of additional
securities of the issuer, or the disposition of securities of the Issuer; (b) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Issuer; (c) a sale or transfer of a material amount
of assets of the Issuer; (d) any change in the present board of directors or
management of the Issuer, including any plans or proposals to change the number
or term of such directors or to fill any existing vacancies on such board; (e)
any material change in the present capitalization or dividend policy of the
Issuer; (f) any other material change in the Issuer's business or corporate
(Continued on following pages)
(Page 5 of 9 Pages)
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CUSIP No. 42220B101
structure; (g) changes in the Issuer's charter, by-laws or instruments
corresponding thereto or other actions that may impede the acquisition of
control of the Issuer by any person; (h) the class of securities of the Issuer
to be delisted from a national securities exchange or to cease to be authorized
to be quoted in an inter-dealer quotation system of a registered national
securities association; (i) a class of equity securities of the Issuer becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or (j) any action similar to any of those
enumerated above.
5. Interest in Securities of the Issuer.
(a) The aggregate number of shares of Common Stock and the percentage
of outstanding shares of Common Stock (based upon the 14,448,769 shares of
Common Stock outstanding on October 13, 1999, as represented by the Issuer),
beneficially owned by the Reporting Person, as of the close of business on
October 13, 1999, is set forth below:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Name of Holder No. of Shares Beneficially Owned Perecentage of Outstanding Shares
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Neal J. Polan, individually 1,676,600 (1) 11.5% (or12.5% giving effect to all of
the shares listed in this table or 5.7%
after giving effect to the termination
of the Escrow Agreement and including
the shares then owned individually and
as custodian)
- -----------------------------------------------------------------------------------------------------------------------
Neal J. Polan and his spouse, 25,000 (2) *
as joint tenants
- -----------------------------------------------------------------------------------------------------------------------
Neal J. Polan, as custodian 30,000 *
for Katherine Polan
- -----------------------------------------------------------------------------------------------------------------------
Neal J. Polan, as custodian 30,000 *
for Ethan Polan
- -----------------------------------------------------------------------------------------------------------------------
Neal J. Polan, as custodian 58,800 (3) *
for Barrett Polan
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1%.
(1) Includes 142,000 shares of Common Stock issuable upon exercise
of warrants held by the Reporting Person that are currently
exercisable at $1.00 per share on or before September 2007.
Also includes 126,000 shares of Common Stock placed in escrow
pursuant to the Escrow Agreement; subject to stockholder
approval of the termination of the Escrow Agreement, the
Reporting Person will retain 25,200 shares and the 100,800
share balance shall be cancelled. Also includes 894,000 shares
of Common Stock as of September 10, 1999 held by
(Continued on following pages)
(Page 6 of 9 Pages)
<PAGE>
CUSIP No. 42220B101
stockholders (other than Mr. Polan, individually or as
custodian for his son, Barrett) who are parties to the Escrow
Agreement and who have granted Mr. Polan a proxy to vote their
shares of Common Stock, whether or not such shares are subject
to the Escrow Agreement until the earlier of termination of
the Escrow Agreement or January 1, 2000; beneficial ownership
of the shares held by such third parties is disclaimed by Mr.
Polan.
(2) Consists of 25,000 shares issuable upon exercise of Redeemable
Class A Warrants, entitling the holder to purchase one share
of Common Stock at an exercise price of $6.50 per share at any
time until October 14, 2002.
(3) Includes 36,000 shares of Common Stock placed in escrow
pursuant to the Escrow Agreement; subject to stockholder
approval of the termination of the Escrow Agreement, the
Reporting Person will retain 7,200 shares and the 28,800 share
balance shall be cancelled.
(b) The Reporting Person has the sole power to vote or direct the vote
of all of the shares beneficially owned by him other than the 25,000 shares
issuable upon exercise of warrants jointly owned by the Reporting Person and his
spouse, voting power of which shares is shared by the Reporting Person and his
spouse. The Reporting Person also has the sole power to dispose of or direct the
disposition of all of the shares of Common Stock beneficially owned by him other
than (1) the 894,000 shares of Common Stock held by the other stockholders who
are parties to the Escrow Agreement and (2) the shares issuable upon exercise of
the 25,000 warrants held jointly by the Reporting Person and his spouse. The
Reporting Person has no dispositive power over the shares held by the other
escrow stockholders and shares dispositive power with his spouse over the
warrants jointly owned with his spouse.
(c) On October 12, 1999, the Reporting Person, directly and as
custodian for his children, acquired shares from Adatom convertible into an
aggregate of 350,000 shares of Common Stock in the Merger as partial
consideration for his entering into an employment agreement. See Item 3. In
addition, on October 12, 1999, the Reporting Person exchanged a warrant to
purchase 142,000 shares of class A common stock of HealthCore at an exercise
price of $1.00 per share for 28,400 shares of class A common stock. In September
1997, in connection with his employment with HealthCore, the Reporting Person
had acquired such warrant, which by its terms would become exercisable only if
certain market price thresholds or operating performance-based criteria of
HealthCore are met.
(d) Not applicable.
(e) Not applicable.
6. Contracts, Arrangements, Understandings or Relationships with respect to
Securities of the Issuer.
In connection with the Merger, the Reporting Person has agreed to
lock-up all of his shares of Common Stock, including 167,000 shares issuable
upon exercise of warrants. The
(Continued on following pages)
(Page 7 of 9 Pages)
<PAGE>
CUSIP No. 42220B101
lock-up agreement provides that 125,000 of his shares, which represents a
portion of the shares he owned prior to the Merger, will be subject to the
lock-up agreement for a period of two months following the closing of the Merger
and the remaining shares he beneficially owns will be subject to the lock up
agreement for a period of six months following the closing of the Merger.
The Reporting Person has entered into a Registration Rights Agreement
with HealthCore, on the terms and conditions set forth therein, giving the
Reporting Person, among other things, the right, on the terms and conditions set
forth therein, to require the Issuer to register for sale to the public 367,800
shares of Common Stock, including 142,000 shares underlying warrants.
7. Material to be filed as Exhibits.
(a) Employment Agreement dated as of September 30, 1998 between HealthCore
and Neal J. Polan
(b) Letter Amendment dated April 27, 1999 to Employment Agreement between
HealthCore and Neal J. Polan
(c) Employment Agreement dated October 11, 1999 between Adatom, Inc. and
the Reporting Person.
(d) Escrow Termination Agreement dated as of July 1, 1999 between
HealthCore and escrow stockholders acknowledged by Adatom.
(e) Irrevocable Proxy granted by escrow stockholders to Neal J. Polan.
(f) Lock-up Agreement dated October 12, 1999 executed by the Reporting
Person.
(g) Registration Rights Agreement dated October 12, 1999 between HealthCore
Medical Solutions, Inc. and the Reporting Person.
(Continued on following pages)
(Page 8 of 9 Pages)
<PAGE>
CUSIP No. 42220B101
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.
October 22, 1999
------------------------------------
(Date)
/s/ Neal J. Polan
------------------------------------
(Signature)
Neal J. Polan
------------------------------------
(Name)
(Page 9 of 9 Pages)
<PAGE>
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
AGREEMENT, dated as of September 30, 1998, between HealthCore Medical
Solutions, Inc., a Delaware corporation (the "Company"), and Neal J. Polan (the
"Employee").
WHEREAS, the Company desires to retain the services of the Employee,
and the Employee desires to provide such services to the Company, on the terms
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment and Duties.
(a) The Company hereby employs the Employee, and the Employee
accepts employment, to serve as Chief Executive Officer of the Company and to
perform such duties consistent with his current responsibilities and as may
reasonably be assigned to him from time to time by the Company's Board of
Directors. The Employee shall also serve without additional compensation as
Chairman of the Board of Directors of the Company, if so elected or appointed.
(b) The Employee hereby agrees to perform such duties, to
fulfill such responsibilities and to serve the Company faithfully, industriously
and to the best of his ability, subject to the direction and control of the
Company's Board of Directors. The parties hereto acknowledge that Employee shall
not be required to devote more than 50% of his working time to his
responsibilities hereunder and that Employee shall not be restricted in his
abilities to pursue other business interests during the remaining portion of his
working time.
2. Term; Termination.
Except in the case of earlier termination as hereinafter
specifically provided in Paragraph 4, this Agreement shall be effective as of
September 30, 1998 and the term hereof and the Employee's employment hereunder
shall continue until November 30, 2000 (the "Initial Term"). This Agreement
shall be renewed automatically for successive one year terms thereafter (each, a
"Renewal Term") unless either party gives not less thin 30 days prior written
notice to the other party that such party elects to have this Agreement
terminate at the end of the Initial Term or the then current Renewal Term.
3. Compensation; Expenses; Benefits.
(a) As compensation for his services hereunder in whatever
capacity rendered, the Company shall pay the Employee a salary, payable in
accordance with the Company's standard payroll practices with respect to senior
officers of the Company and/or its
<PAGE>
affiliated corporations, at a rate of $150,000 per year; provided, that such
salary shall be increased to $200,000 for the twelve month period commencing
December 1, 1998. Such salary may be increased, but not decreased by the Board
of Directors and shall be reviewed by the Board no less frequently than
annually. Such salary and the Employee's employee benefits provided pursuant to
Paragraph 3 hereof shall continue to be paid and provided, regardless of any
illness or incapacity of the Employee, until this Agreement is terminated.
(b) The Employee shall also be entitled to receive such
bonuses as the Company's Board of Directors or Compensation Committee, if any,
may deem appropriate. The Employee shall also be entitled to participate in the
Company's employee stock option plan, as may be determined by the Company's
Board of Directors or Compensation Committee, if any.
(c) The Employee and the Employee's spouse and children, if
any, shall be entitled to participate in all employee benefit plans generally
available from time to time to the senior officers of the Company, so long as
such benefits comply with applicable law (including without limitation the
Internal Revenue Code and ERISA). In addition, Employee shall be entitled to
annual vacation in accordance with Company policy at such times as are mutually
convenient to Employee and the Company.
(d) The Employee shall be entitled to advances or
reimbursement in accordance with the Company's standard business practices for
his ordinary and necessary business expenses incurred in the performance of his
duties hereunder provided that his claims therefor shall be supported by the
documentation required by the Company in accordance with its usual practice.
(e) The Company shall supply a luxury automobile to Employee
for his use and shall pay all costs, including insurance, associated therewith.
(f) The Company shall pay the yearly premium during the
Initial Term and any subsequent Renewal Term on a term life insurance policy for
the Employee in the amount of $2,000,000 under which the Employee's estate shall
be the beneficiary.
4. Termination of Employment. If any of the following events occur
before the expiration of the Term, Employee's employment with the Company shall
terminate upon the occurrence of such event:
(a) Employee's death, or, in the event that the Company
maintains disability insurance for the Employee, any illness, disability or
other incapacity that renders Employee physically unable regularly to perform
his duties hereunder for a period in excess of one hundred eighty (180) days.
The determination regarding whether Employee is physically unable regularly to
perform his duties hereunder shall be made by the Company's Board of Directors
in the reasonable, good faith exercise of their judgment.
-2-
<PAGE>
(b) Thirty (30) days after the Company gives Employee written
notice of the termination of Employee's employment if said termination is for
cause. For purposes of this Paragraph 4(b), "cause" is defined as (i) Employee's
conviction of a crime constituting a felony or involving moral turpitude or (ii)
an act by Employee of material dishonesty or fraud in connection with Employee's
performance of his duties to the Company.
5. Representations, Warranties and Covenants of Employee. The Employee
represents, warrants and covenants to and with the Company that (a) he is not
and will not become a party to any agreement, contract or understanding, whether
employment or otherwise, and that he is not subject to any order, judgment or
decree of any court or governmental agency, which would, in any way, restrict or
prohibit him from undertaking or performing his employment in accordance with
the terms and conditions of this Agreement and (b) he is of sufficient physical
and mental health to fulfill his duties, obligations and responsibilities under
the terms of this Agreement.
6. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in that state.
(b) Notices. All notices, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand (with receipt confirmed), (b) sent by telex or
telecopier (with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by Express Mail, Federal Express or other express delivery
service (receipt requested), in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate as to itself by notice to the other parties):
If to the Employee:
Neal J. Polan
1325 Avenue of the Americas, Suite 1200
New York, New York 10019
Telecopier No.: (212) 399-9199
with a copy to:
Neal J. Polan
20 Cameron Drive
Greenwich, Connecticut 07831
-3-
<PAGE>
If to the Company:
HealthCore Medical Solutions, Inc.
11904 Blue Ridge Boulevard
Grandview, Missouri 64030
Telecopier No.: (816) 765-6573
with a copy to:
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 682-5729
Attention: Sheldon E. Misher, Esq.
(c) Entire Agreement; Amendment. This Agreement shall
supersede all existing agreements between the Employee and the Company relating
to the terms of his employment. This Agreement may not be amended except by a
written agreement signed by both parties.
(d) Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(e) Assignment. Subject to the limitations below, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, representatives, successors and assigns. This
Agreement shall not be assignable by the Employee, and shall be assignable by
the Company only to an affiliate of the Company or any corporation resulting
from the reorganization, merger or consolidation of the Company with any other
corporation or any corporation to which the Company may sell all or
substantially all of its assets.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each executed this
Executive Employment Agreement as of the day and year first above written.
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/ David L. Mullikin
-----------------------------------------
Name: David L. Mullikin
Title: President and Chief Operating
Officer
/s/ Neil J. Polan
-----------------------------------------
Neil J. Polan
-5-
<PAGE>
HEALTHCORE MEDICAL SOLUTIONS, INC.
405 LEXINGTON AVENUE, 50TH FLOOR
NEW YORK, NY 10174
April 27,1999
Mr. Neal J. Polan
20 Cameron Drive
Greenwich, Connecticut 07831
Re: Amendment of Executive Employment Agreement
Dear Neal:
This letter (the "Agreement") sets forth the mutual understanding
between you and HealthCore Medical Solutions, Inc. (the "Company") concerning
the amendment (the "Amendment") of the Executive Employment Agreement (the
"Employment Agreement"), dated September 30, 1998, between you and the Company.
You and the Company acknowledge that the Employment Agreement shall
remain in full force and effect and that such Employment Agreement shall be,
effective one hundred twenty (120) days following the execution of this
Agreement, amended to add a new Paragraph 4(c) to read as follows:
"(c) If the Company terminates the Employment Agreement for
any reason, except for cause or in accordance with Paragraph 2 above,
the Company shall, immediately upon termination of such Employment
Agreement, pay you the lesser of (i) One Hundred Fifty Thousand
($150,000) Dollars or (ii) sixty percent (60%) of the present value of
the remaining compensation and benefits due under the terms of the
Employment Agreement on the date of its termination."
In consideration for signing this Agreement and in exchange for the
promises and waivers set forth herein, the Company shall, immediately upon
signing this Agreement, provide you with one hundred sixty-five thousand
(165,000) shares of the Company's Class A Common Stock.
Very truly yours,
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/ David L. Mullikin
-------------------------------
Name: David L. Mullikin
Title: President
ACCEPTED AND AGREED TO:
/s/ Neal J. Polan
- ------------------------------------
Neal J. Polan
Dated: April 27, 1999
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 11, 1999,
between Adatom, Inc., a California corporation (the "Company"), and Neal J.
Polan, an individual residing at 20 Cameron Drive Greenwich, Connecticut (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed (i) a certain Agreement
and Plan of Merger (the "Merger Agreement"), dated July 1, 1999, among the
Company, HealthCore Medical Solutions, Inc., a Delaware corporation
("HealthCore"), the Employee, and the shareholders of the Company, pursuant to
which the Company will be merged (the "Merger") with and into HealthCore, and
(ii) a certain Letter Agreement (the "Letter Agreement"), dated July 1, 1999,
between the Company and the Employee; and
WHEREAS, in connection with the consummation of the Merger, and in
accordance with the terms of the Letter Agreement, the Company desires to retain
the services of the Employee, and the Employee desires to provide such services
to the Company, on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment and Duties.
(a) The Company hereby employs the Employee, and the Employee
hereby accepts employment with the Company, to advise the Company on
mergers, acquisitions and other initiatives and strategic ventures
contemplated to be undertaken by the Company, as the Company's
President may direct.
(b) The Employee hereby agrees to perform the duties described in
Section 1(a) hereof, and to serve the Company, faithfully, diligently
and to the best of his ability, subject to the direction of the
Company's President. The parties hereby agree that the Employee shall
not be required to devote in excess of sixty (60) hours per month (the
"Monthly Employment Period") to the performance of his duties under
this Agreement, at such timed mutually acceptable to the Company and
the Employee. The parties further acknowledge and agree that the
Employee's employment hereunder shall in no manner restrict or limit
the Employee's freedom to pursue other professional endeavors provided
they do not materially impair the Employee's ability to perform his
duties hereunder.
(c) During the Term (as defined in Section 2 hereof) the Employee
shall not, directly or indirectly, engage in the internet retail
superstore business or any related internet retail business in which
the Company shall actually engage in any material manner; provided,
however, that such prohibition shall not apply to any business in
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which the Employee shall have been engaged, independent of his
employment with the Company, prior to the date on which the Company
commences its engagement of such business.
2. Term.
The term of the Employee's employment under this Agreement shall
commence (the "Commencement Date") contemporaneously with the Closing
(the "Closing") of the transactions contemplated by the Merger
Agreement, and shall continue for a period of two (2) years thereafter,
unless earlier terminated in accordance with the terms and conditions
of Section 4 hereof (the "Term").
3. Compensation; Signing Bonus; Expenses; Benefits.
(a) Base Compensation. As compensation for the Employee's
performance of the services contemplated to be rendered by the Employee
hereunder, the Company shall pay to Employee an salary of Fifty
Thousand ($50,000) Dollars per annum, payable in accordance with the
Company's standard payroll practices for senior employees. Such salary
may be increased, but not decreased, by the Board of Directors and
shall be reviewed by the Board no less frequently than annually.
(b) Stock Purchase. In partial consideration for the Employee's
execution and delivery to Adatom of this Agreement simultaneously with
the execution of the Merger Agreement, the Company has heretofore
agreed, pursuant and subject to the terms of the Letter Agreement, that
immediately prior to the Commencement Date the Company shall issue to
the Employee such number of shares (such shares being the "Polan
Shares") of the Company's common stock, no par value per share
(collectively, the "Adatom Shares") which in accordance with the terms
and conditions set forth in the Merger Agreement shall be convertible
into three hundred fifty thousand (350,000) shares of HealthCore Class
A common stock, par value $.01 per share, for a purchase price purchase
price of Three Hundred Twenty Thousand Seven Hundred Sixty ($320,760)
Dollars payable pursuant to the terms of a promissory note (the "Note')
in form and substance mutually satisfactory to the Employee and the
Company, and their respective counsel. The Company hereby agrees that
the principal amount of the Note, together with all accrued interest
thereon through the relevant date, shall be forgiven by the Company six
(6) months following the Commencement Date.
(c) Expenses. The Employee shall be entitled to advances or
reimbursement in accordance with the Company's standard business
practices for his ordinary and necessary business expenses incurred in
the performance of his duties hereunder provided that his claims
therefor shall be supported by the documentation required by the
Company in accordance with its usual practice; and further provided
that the Employee acknowledges that in view of the fact that the
Company's offices are located in California, the Employee will be
responsible for the payment of all expenses associated with the
maintenance and management of his New York office.
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(d) Benefits. The Company shall provide the Employee with family
health insurance coverage, and shall allow the Employee to participate
in the Company's employee stock option plans.
4. Termination.
(a) Termination for Cause. The Company may terminate the
Employee's employment hereunder for "cause," which term shall be
defined as (i) Employee's conviction of a crime constituting a felony
or involving moral turpitude, and (ii) an act by Employee of fraud in
connection with Employee's performance of his duties to the Company.
Upon a termination for cause, the parties' obligations hereunder shall
terminate and be of no further force or effect; provided, however, that
the Employee shall retain the Polan Shares and the Note shall forthwith
be deemed to be fully paid performed and discharged, and the Employee
shall own the Polan Shares free and clear of any and all claims arising
under the Note and/or this Agreement.
(b) Termination Without Cause. The Company may terminate the
Employee's employment at any time "without cause" (which term shall be
defined as a termination for any reason other than as set forth in
Section 4(a) hereof), including, without limitation, by reason of the
Employee's death, illness, disability or other incapacity. In such
event (i) the Employee's obligations under the Note shall forthwith be
deemed to be fully paid performed and discharged, and the Employee
shall own the Polan Shares free and clear of any and all claims arising
under the Note and/or this Agreement, and (ii) except in the case of
termination as a result of death, disability or incapacity, the
Employee shall be entitled receive the full payment of any and all
salary required to be provided to the Employee pursuant to the terms of
this Agreement at the times such salary would have been paid hereunder,
and, other than as provided (i) and (ii) of this Section 4(b), the
parties' obligations hereunder shall terminate and be of no further
force or effect.
(c) Termination by Employee. In the event the Employee shall
terminate his employment hereunder for any reason the parties'
obligations hereunder shall terminate and be of no further force or
effect; provided, however, that the Employee shall retain the Polan
Shares, and the Note shall forthwith be deemed to be fully paid
performed and discharged, and the Employee shall own the Polan Shares
free and clear of any and all claims arising under the Note and/or this
Agreement.
5. Board of Directors.
In the event the Employee shall at any time during the term
hereof serve on the Board of Directors of the Company, the Employee
shall be entitled to receive, in addition to the compensation and
benefits payable hereunder, such compensation, benefits and
entitlements as provided to the outside directors of the Company.
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6. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California
applicable to agreements made and to be performed in that state.
(b) Notices. All notices, consents and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given when (a) delivered by hand (with receipt confirmed), (b)
sent by telex or telecopier (with receipt confirmed), provided that a
copy is mailed by registered mail, return receipt requested, or (c)
when received by the addressee, if sent by Express Mail, Federal
Express or other express delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth
below (or to such other addresses and telecopier numbers as a party may
designate as to itself by notice to the other parties):
If to the Employee:
Neal J. Polan
20 Cameron Drive
Greenwich, Connecticut 07831
Facsimile: (917) 368-3601
with a copy to:
Epstein Becker & Green, P.C.
250 Park Avenue
New York, NY 10177
Attn: Seth Truwit, Esq.
Facsimile: (212) 661-0989
If to the Company:
Adatom, Inc.
920 Hillview Court, Suite 160
Milipitas, Ca 95035
Attn: Mr. Richard Barton, President
Facsimile: (561) 364-0771
with a copy to:
McCutchen, Doyle, Brown & Enersen, LLP
Three Embarcadero Center
San Francisco, CA 94111
Attn: Hank Evans, Esq.
Facsimile: (415) 393-2286
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(c) Entire Agreement; Amendment. This Agreement contains the
entire understanding between the parties and may not be modified,
altered or terminated except by an instrument in writing signed by the
parties.
(d) Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
(e) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns.
(f) Severability. If any of the provisions, terms or clauses of
this Agreement are declared illegal, unenforceable or ineffective in a
legal forum, those provisions, terms and clauses shall be deemed
severable, such that all other provisions, terms and clauses of this
Agreement shall remain valid and binding upon both parties.
(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, when taken
together, shall constitute one and same instrument.
IN WITNESS WHEREOF, the parties hereto have each executed this
Employment Agreement as of the day and year first above written.
ADATOM, INC.
By: /s/ Richard S. Barton
--------------------------------
Name: Richard S. Barton
Title: President & CEO
/s/ Neal J. Polan
------------------------------------
Neal J. Polan
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TERMINATION AGREEMENT
TERMINATION AGREEMENT (the "Agreement") made as of this 1st
day of July, 1999, by and among HealthCore Medical Solutions, Inc., a Delaware
corporation ("HealthCore"), and those shareholders of HealthCore who have
executed this Agreement on the signature page hereof (each a "Participating
Escrow Shareholder", and collectively, the "Participating Escrow Shareholders").
W I T N E S S E T H:
WHEREAS, HealthCore and the Participating Escrow Shareholders
are parties to that certain Amended and Restated Escrow Agreement (the "Escrow
Agreement"), dated as of July 31, 1997, among HealthCore, the Participating
Escrow Shareholders, the other stockholders of HealthCore who are signatories to
the Escrow Agreement (collectively, the "Non-Participating Escrow Shareholders"
and, together with the Participating Escrow Shareholders, collectively, the
"Escrow Shareholders") and American Stock Transfer & Trust Company (the "Escrow
Agent"), pursuant to which certain of the shares of Common Stock of HealthCore
(collectively, the "HealthCore Common Stock") owned beneficially and of record
by the Escrow Shareholders (such shares being collectively referred to as the
"Escrow Shares") are held in escrow; and
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WHEREAS, HealthCore is a party to that certain Agreement and
Plan of Merger, dated July 1, 1999, between HealthCore and Adatom, Inc.
("Adatom"), a California corporation, which contemplates, among other things,
the merger of Adatom with and into HealthCore (the "Merger"); and
WHEREAS, in connection with the Merger, and subject to the
terms and conditions of this Agreement, HealthCore and the Participating Escrow
Shareholders desire to terminate the Escrow Agreement as to each Participating
Escrow Shareholder, and, in connection therewith, cancel four (4) Escrow Shares
for every five (5) Escrow Shares (i.e., eighty (80%) percent of the Escrow
Shares) owned beneficially and of record by each of the Participating Escrow
Shareholders (the remaining shares held by the Participating Escrow Shareholders
following such cancellation being collectively referred to as the "Released
Shares"); and
WHEREAS, the affirmative vote of the holders of two-thirds
(2/3) of the outstanding shares of HealthCore Common Stock entitled to vote with
respect to the adoption and approval of this Agreement and the transactions
contemplated hereby, excluding the vote of the shares of HealthCore Common Stock
held by the Participating Escrow Shareholders (such vote being the "Required
Stockholder Vote") is required to, among other things, terminate the Escrow
Agreement.
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NOW, THEREFORE, HealthCore and the Participating Escrow Shareholders
hereby agree as follows:
ARTICLE 1
SURRENDER OF SHARES;
TERMINATION OF ESCROW AGREEMENT; GRANT OF PROXIES
1.1 Surrender of Shares. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations, warranties and covenants
contained herein, on the Termination Closing Date (as defined in Section 5.1
hereof), the number of Escrow Shares set forth opposite each Participating
Escrow Shareholder's name on Schedule 1.1 hereto, constituting eighty (80%)
percent of the Escrow Shares owned beneficially and of record by such
Participating Escrow Shareholder, shall be and be deemed cancelled, without the
necessity of any further action on the part of the Participating Escrow
Shareholder, and such Participating Escrow Shareholders shall have no rights of
any kind or nature in or to such Escrow Shares.
1.2 Termination of Escrow Agreement.
(a) Notwithstanding anything in the Escrow Agreement to the
contrary, and subject to HealthCore's receipt of the Required Stockholder Vote,
on the Termination Closing Date the Escrow Agreement shall be deemed terminated,
and of no further force or effect, with respect to the Participating Escrow
Shareholders, only, and all of the Released Shares shall be distributed to
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the Participating Escrow Shareholders, without the restrictive legend described
in Section 9(a) of the Escrow Agreement that is currently contained on the
certificates representing the Escrow Shares shall be deleted. By the execution
of this Agreement, each Participating Escrow Shareholder authorizes and directs
the Escrow Agent under the Escrow Agreement to deliver all certificates for the
Escrow Shares to HealthCore, at a location in New York City specified by
HealthCore upon receipt from HealthCore of a letter verifying that the Required
Stockholder Vote has been obtained. Upon its receipt thereof, HealthCore shall,
within ten (10) business days thereafter, deliver to each Participating Escrow
Shareholders the number of Released Shares to which such Participating Escrow
Shareholder is entitled as more particularly set forth on Schedule 1.1 hereto.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement shall be binding upon, and shall inure to the benefit of only
those parties who have executed this Agreement. The Non-Participating Escrow
Shareholders shall have no rights, of any kind or nature, under this Agreement,
and such Non-Participating Escrow Shareholders and the shares of HealthCore
Common Stock owned by the Non-Participating Escrow Shareholders that are held in
escrow, shall remain subject to the all of terms and conditions of the Escrow
Agreement.
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1.3 Grant of Proxies. Contemporaneously with the execution hereof, each
of the Participating Escrow Shareholders shall execute and deliver to HealthCore
an irrevocable proxy (collectively, the "Voting Proxies") appointing Neal J.
Polan ("Polan"), the Chairman of the Board and Chief Executive Officer of
HealthCore, as proxy to vote all of the shares of HealthCore Common Stock owned
beneficially and of record by such Participating Escrow Shareholder, including,
without limitation, the Released Shares, for a period expiring on the earliest
of (a) the first date by which both (i) the closing of the transactions
contemplated by the Merger Agreement shall have occurred ("Merger Closing"), and
(ii) HealthCore shall have received the Required Stockholder Vote, (b) the
termination of the agreements contained in the Merger Agreement, and (c) with
respect to those shares of HealthCore Common Stock other than the Escrow Shares
sold by the Participating Escrow Shareholders, HealthCore's receipt of notice of
the consummation of the sale of such shares of HealthCore Common Stock.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF PARTICIPATING ESCROW SHAREHOLDERS
Each Participating Escrow Shareholder represents and warrants to
HealthCore as follows:
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2.1 Authority. Such Participating Escrow Shareholder has the right,
power, authority and legal capacity to enter into and perform such Participating
Escrow Shareholder's obligations under this Agreement and to consummate the
transactions contemplated hereby to be performed by such Participating Escrow
Shareholder, and this Agreement has been duly executed and delivered by such
Participating Escrow Shareholder and is a valid and binding agreement of such
Participating Escrow Shareholder enforceable against such Participating Escrow
Shareholder in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
2.2 Title to the Escrow Shares. Such Participating Escrow Shareholder
owns, beneficially and of record, the number of Escrow Shares set opposite the
name of such Participating Escrow Shareholder on Schedule 1.1, free and clear of
any and all liens, claims or encumbrances, of any kind or nature, and upon
delivery to HealthCore of the certificate or certificates evidencing such Escrow
Shares, duly endorsed for transfer to HealthCore, HealthCore will acquire good,
valid, indefeasible and marketable title thereto, free and clear of any and all
liens, claims or encumbrances, of any kind or nature.
2.3 Examination of Documents. HealthCore has delivered to such
Participating Escrow Shareholder, and such Participating Escrow Shareholder has
examined, the Annual Report of Form 10-KSB of HealthCore for the fiscal year
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ended September 30, 1998 (the "1998 Form 10-KSB"), HealthCore's Quarterly Report
on Form 10-QSB for each of the quarters ended December 31, 1998 and March 31,
1999, including the financial statements contained therein, and HealthCore's
Current Report on Form 8-K, filed with SEC on July 9, together with the exhibits
thereto, and has had the opportunity to discuss HealthCore's operations with
HealthCore's officers and employees.
2.4 Acknowledgment. Each of the Participating Escrow Shareholders
acknowledges that in the event the Merger is not consummated, and HealthCore
continued its current business activities as more particularly described in
HealthCore's most recent 10QSB, it is highly unlikely as of the date hereof that
the conditions in the Escrow Agreement for release of the Escrow Shares would be
satisfied prior to the last possible date for the attainment thereof, and thus
each Participating Escrow Shareholder may be required to forfeit all of his or
her Escrow Shares pursuant to the terms of the Escrow Agreement. Each
Participating Escrow Shareholder further acknowledges that, in light of the
foregoing, he or she carefully considered whether or not to enter into this
Agreement and has concluded that to do so is prudent and provides the best
opportunity at this time to realize ownership of even a portion of the Escrow
Shares.
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ARTICLE 3
REPRESENTATIONS AND
WARRANTIES OF HEALTHCORE
HealthCore represents and warrants to the Participating Escrow
Shareholders as follows:
3.1 Authority. The Board of Directors of HealthCore has unanimously
approved this Agreement and the transactions contemplated hereby. The Required
Stockholder Vote is the only vote of the holders of any class or series of the
capital stock of HealthCore necessary to approve this Agreement and the
transactions contemplated hereby, and HealthCore has all other requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by HealthCore
and constitutes a valid and binding obligation of HealthCore enforceable against
HealthCore in accordance with its terms, subject to HealthCore's receipt of the
Required Stockholder Vote.
ARTICLE 4
CONDITIONS TO CLOSING
4.1 Conditions to Obligations of HealthCore. The obligations of
HealthCore hereunder are conditioned upon the following:
(a) HealthCore shall have received the Required Stockholder Vote;
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(b) The Merger and the transactions contemplated thereby shall
have been consummated by September 30, 1999, or such later date as HealthCore
and Adatom shall have agreed to in writing;
(c) All warranties and representations of the Participating
Escrow Shareholders contained in this Agreement or in any schedule or instrument
delivered hereunder or otherwise made in connection with the transactions
contemplated hereby shall be true and correct, on and as of the Termination
Closing Date, with the same force and effect as if made on and as of the
Termination Closing Date;
(d) The Participating Escrow Shareholders shall have performed
and complied with all of the covenants and agreements required by or pursuant to
this Agreement, and any schedule or instrument delivered hereunder, to be
performed or complied with on or prior to the Termination Closing Date; and
(e) All documents delivered and action taken pursuant hereto
shall be satisfactory in form and substance to HealthCore and its counsel.
4.2 Conditions to Obligations of the Participating Escrow Shareholders.
The obligations of the Participating Escrow Shareholders hereunder are
conditioned upon the following:
(a) All warranties and representations of HealthCore contained in
this Agreement shall be true and correct on and as of the Termination
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Closing Date with the same force and effect as if made on and as of the
Termination Closing Date.
(b) HealthCore shall have performed and complied with all of the
covenants and agreements required by or pursuant to this Agreement, and any
schedule or instrument delivered hereunder, to be performed or complied with on
or prior to the Termination Closing Date.
ARTICLE 5
CLOSING; DELIVERIES
5.1 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Termination Closing") shall be deemed to occur on the first date
by which both (i) the Merger Closing shall have occurred, and (ii) HealthCore
shall have received the Required Stockholder Vote (such date being the
"Termination Closing Date").
5.2 Deliveries by the Participating Escrow Shareholders.
(a) Contemporaneously with the execution hereof, the
Participating Escrow Shareholders shall deliver to HealthCore the Voting Proxies
more particularly described in Section 1.2 hereof.
(b) At the Termination Closing, the Participating Escrow
Shareholders shall deliver to HealthCore, in accordance with terms of Section
1.2(a) hereof, Certificates representing the Escrow Shares, ; and
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5.3 Deliveries of HealthCore. At the Termination Closing, HealthCore
shall have no items to deliver to the Participating Escrow Shareholders.
ARTICLE 6
SURVIVAL AND INDEMNIFICATION
6.1 Survival. The representations and warranties contained herein shall
survive the Termination Closing for a period six (6) months following the
Termination Closing Date.
6.2 Indemnification of HealthCore and Participating Escrow
Shareholders.
(a) Indemnification by Participating Escrow Shareholders. The
Participating Escrow Shareholders hereby agree to indemnify and hold harmless
HealthCore from and against any and all losses, liabilities, damages,
obligations, costs and expenses, including, without limitation, amounts paid in
settlement and reasonable costs and expenses of investigating, preparing to
defend and defending any claim, action, suit, proceeding, inquiry or
investigation in respect thereof (such losses, liabilities, damages,
obligations, costs and expenses as hereinabove set forth, collectively
"Damages") resulting from, relating to, or arising out of the inaccuracy of any
representation or warranty herein by such Participating Escrow Shareholder or
the breach of any covenant herein by such Participating Escrow Shareholder.
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(b) Indemnification by HealthCore. HealthCore hereby agrees to
indemnify and hold harmless the Participating Escrow Shareholders from and
against any and all Damages incurred by the Participating Escrow Shareholders
resulting from, relating to, or arising out of the inaccuracy of any
representation or warranty herein by HealthCore or the breach of any covenant
contained herein by HealthCore.
(c) Procedure. If any action, suit, proceeding or claim shall be
brought against the party to be indemnified by any third party, which action,
suit, proceeding or claim, if determined adversely to the interest of the party
to be indemnified and which would entitle the party to be indemnified to
indemnity pursuant to this Section 6.2, the party to be indemnified shall
promptly notify the indemnifying party of the same in writing and, if the
indemnifying party so elects, the indemnifying party shall assume the defense
thereof, including the employment of counsel satisfactory to the party to be
indemnified and the payment of all reasonable costs and expenses in respect
thereof. The party to be indemnified shall have the right to employ counsel
separate from any counsel employed by the indemnifying party in any action,
suit, proceeding or claim and to control (or, if the party to be indemnified has
elected to allow the indemnifying party to assume the defense thereof,
participate in) the defense thereof and the fees and expenses of such counsel
employed by the party to be indemnified shall be at the expense of the party to
be indemnified. The indemnifying party shall not
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be liable for any settlement of any such action, suit, proceeding or claim
effected without his or its written consent (which shall not be unreasonably
withheld), but if settled with the written consent of the indemnifying party, or
if there shall be a final judgment for plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless the party to be
indemnified from and against any loss, liability, obligation, damage, cost or
expense by reason of such settlement or judgment.
6.3 Hold Harmless; Indemnification of Polan. Polan shall have no
liability of any kind or nature to the parties hereto in connection with the
exercise of the rights granted to Polan pursuant to the Voting Proxies, and the
parties hereto, jointly and severally, shall indemnify, defend and hold harmless
Polan from and against any and all Damages arising out of or in connection with
the exercise of the rights granted to Polan pursuant to the Voting Proxies.
ARTICLE 7
TERMINATION
7.1 Termination. Unless otherwise agreed to by HealthCore and all of
the Participating Escrow Shareholders, in writing, this Agreement shall
terminate and be of no further force or effect immediately upon the termination
of the agreements contained in the Merger Agreement.
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ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Amendment and Modification. This Agreement may be amended, modified
and supplemented only by a writing signed by HealthCore and the Participating
Escrow Shareholders.
8.2 Waiver of Compliance. Any failure of HealthCore or the
Participating Escrow Shareholders to comply with any obligation, covenant,
agreement or condition herein contained may be expressly waived, in writing
only, by (i) HealthCore in the case of any failure of the Participating Escrow
Shareholders, or (ii) the Participating Escrow Shareholders in the case of any
failure of HealthCore. Such waiver shall be effective only in the specific
instance and for the specific purpose for which made or given.
8.3 Expenses. The parties hereto shall each pay their own respective
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement. The foregoing shall not be construed as limiting
any other rights which any party may have as a result of misrepresentation of or
breach by any other party.
8.4 Further Assurance. HealthCore and each Participating Escrow
Shareholder agree to cooperate and execute all documents required to effectuate
the transactions contemplated hereby and to perform all actions as reasonably
may be required thereby. Without limiting the generality of the
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foregoing, HealthCore and each of the Participating Escrow Shareholders agrees
to execute and deliver any and all such documents and instruments as may be
required by the Escrow Agent in connection with the termination of the Escrow
Agreement and the release and delivery of the Escrow Shares.
8.5 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, or when mailed by certified or
registered mail (return receipt requested), postage prepaid or when delivered by
fax (evidenced by confirmation of successful transmission), as follows:
A. If to HealthCore:
HealthCore Medical Solutions, Inc.
405 Lexington Avenue, 50th Floor
New York, NY 10174
Attn: Mr. Neal Polan, Chief Executive Officer
Facsimile: (917) 368-3601
B. If to the Participating Escrow Shareholders, to the
address set forth under each such Participating
Escrow Shareholder's name on Schedule 1.1 hereto,
of, if not included thereon, the address designated
by notice to HealthCore.
or to such other person or place as the parties may designate by notice in the
manner provided in this Section 8.4.
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8.6 Assignment. This Agreement shall be binding upon and inure to the
benefit of HealthCore and its respective successors and assigns, and to the
Participating Escrow Shareholders and their respective heirs, executors,
administrators and personal representatives, but neither this Agreement nor any
of the rights, interests and obligations hereunder shall be assigned by any of
HealthCore or the Participating Escrow Shareholders without the prior written
consent of the other parties.
8.7 Third Parties. This Agreement is not intended to and shall not be
construed to give any person other than the parties hereto any interest or
rights (including, without limitation, any third party beneficiary rights) with
respect to or in connection with any agreement or provision contained herein or
contemplated hereby.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
8.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
8.10 Headings. The headings of the sections, schedules and articles of
this Agreement are inserted for the sake of convenience only and shall not
constitute a part hereof.
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8.11 Entire Agreement. This Agreement, including the schedules and
exhibits, contains the entire understanding of the parties in respect of the
subject matter contained herein and therein and there are no other terms or
conditions, representations or warranties, written or oral, express or implied,
except as set forth herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
HEALTHCORE MEDICAL
SOLUTIONS, INC.
By: /s/ Neal J. Polan
-------------------------------
Neal J. Polan, Chairman and
CEO
/s/ Neal J. Polan
---------------------------------------------
Neal J. Polan
Neal J. Polan
---------------------------------------------
Neal J. Polan, as Custodian for Barrett Polan
/s/ Myrna White
---------------------------------------------
Myrna White, as Attorney-In-Fact For
Theodore W. White, Jr.
/s/ Ben E. Randall
---------------------------------------------
Ben E. Randall
17
<PAGE>
/s/ Ronald F. Torchia
---------------------------------------------
Ronald F. Torchia
/s/ Donald E. Umbach
---------------------------------------------
Donald E. Umbach, Trustee under the
Donald E. Umbach Revocable Trust
/s/ Patricia L. Umbach
---------------------------------------------
Patricia L. Umbach, Trustee under the
Patricia L. Umbach Revocable Trust
/s/ Michael J. Reichert
---------------------------------------------
Michael J. Reichert Trustee under the
Michael J. Reichert Revocable Trust
/s/ Jean A. Reichert
---------------------------------------------
Jean A. Reichert, Trustee under the
Michael J. Reichert Revocable Trust
/s/ Robert Hunter
---------------------------------------------
Robert Hunter
/s/ Orville C. Walker
---------------------------------------------
Orville C. Walker
/s/ Mary C. Walker
---------------------------------------------
Mary C. Walker
/s/ George DiCostanzo
---------------------------------------------
George DiCostanzo
18
<PAGE>
/s/ Howard Walfish
---------------------------------------------
1164 Associates
/s/ Annette Lebor
---------------------------------------------
Annette Lebor
Acknowledged and Agreed
as of the Merger Closing
ADATOM, INC.
By: /s/ Richard Barton Date: 9/19/99
----------------------------------- -----------------
Richard Barton, President
19
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July 1, 1999, given by
Ben Randall, an individual residing at 3048 E. Avalon, Springfield, Missouri
(the "Grantor"), the holder of 85,500 shares of the Class A Common Stock, par
value $.01 per share (such shares being the "Grantor Shares"), of HealthCore
Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore
and Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom
is to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/Ben Randall
-------------------------
Ben Randall
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
------------------------------- ------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------- ------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Donald E. Umbach, an individual residing at 616 N.E. Persimmon Lane, Lee's
Summit, Missouri (the "Grantors"), as trustee under the Donald E. Umbach
Revocable Trust, the holder of 49,500 shares of the Class A Common Stock, par
value $.01 per share (such shares being the "Grantor Shares") of HealthCore
Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/ Donald E. Umbach
---------------------------------
Donald E. Umbach, as trustee
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
--------------------------------- --------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
--------------------------------- --------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Michael J. Reichert and Jean A. Reichert, individuals residing at 1493
Hemlock Court, Liberty, Missouri (the "Grantors"), as trustees under the Michael
J. Reichert Revocable Trust, the holder of 99,000 shares of the Class A Common
Stock, par value $.01 per share (such shares being the "Grantor Shares") of
HealthCore Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore
and Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom
is to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/Michael J. Reichert
-------------------------------
Michael J. Reichert, as trustee
<PAGE>
/s/Jean A. Reichert
-------------------------------
Jean A. Reichert, as trustee
Acknowledged and Agreed:
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Orville C. Walker and Mary C. Walker, individuals residing at 303 Bramble
Trail Circle, Lee's Summit, Missouri (collectively, the "Grantor"), the holders
of 27,000 shares of the Class A Common Stock, par value $.01 per share (such
shares being the "Grantor Shares") of HealthCore Medical Solutions, Inc.
("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore
and Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom
is to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July 15, 1999.
/s/Orville C. Walker
-------------------------
Orville C. Walker
<PAGE>
/s/Mary C. Walker
-------------------------
Mary C. Walker
Acknowledged and Agreed:
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Robert E. Hunter, an individual residing at 5181 S.W. Raintree Parkway (the
"Grantor"), the holder of 99,000 shares of the Class A Common Stock, par value
$.01 per share (such shares being the "Grantor Shares") of HealthCore Medical
Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore
and Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom
is to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July 14, 1999.
/s/Robert E. Hunter
-------------------------
Robert E. Hunter
<PAGE>
Acknowledged and Agreed:
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Annette Lebor, an individual residing at 58 Sealy Drive, Lawrence, New York
(the "Grantor"), the holder of 99,000 shares of the Class A Common Stock, par
value $.01 per share (such shares being the "Grantor Shares") of HealthCore
Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/Annette Lebor
-------------------------
Annette Lebor
<PAGE>
Acknowledged and Agreed:
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by George DiCostanzo, an individual residing at 4001 Fanuel Street, San Diego,
California (the "Grantor"), the holder of 18,000 shares of the Class A Common
Stock, par value $.01 per share (such shares being the "Grantor Shares") of
HealthCore Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/George DiCostanzo
-------------------------
George DiCostanzo
<PAGE>
Acknowledged and Agreed:
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Ronald F. Torchia, an individual residing at 9521 Olmstead Road, Kansas City,
Missouri (the "Grantor"), the holder of 85,500 shares of the Class A Common
Stock, par value $.01 per share (such shares being the "Grantor Shares") of
HealthCore Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/Ronald F. Torchia
-------------------------
Ronald F. Torchia
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Myrna White, as attorney-in-fact for Theodore W. White, Jr., an individual
residing at 410 Hayward Drive, Mt. Vernon, MO (the "Grantor"), the holder of
108,000 shares of the Class A Common Stock, par value $.01 per share (such
shares being the "Grantor Shares") of HealthCore Medical Solutions, Inc.
("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/ Myrna White
-------------------------------------------------------
Myrna White, as attorney-in-fact for
Theodore W. White, Jr.
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by Patricia L. Umbach, an individual residing at 616 N.E. Persimmon Lane, Lee's
Summit, Missouri (the "Grantor"), as trustee under the Patricia L. Umbach
Revocable Trust, the holder of 49,500 shares of the Class A Common Stock, par
value $.01 per share (such shares being the "Grantor Shares") of HealthCore
Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
/s/Patricia L. Umbach
------------------------------
Patricia L. Umbach, as trustee
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
IRREVOCABLE PROXY
IRREVOCABLE PROXY (this "Proxy"), dated July ____, 1999, given
by 1164 Associates, a Partnership with an office at c/o DHF International, Inc.,
1164 Broadway, Hewlett, New York (the "Grantor"), the holder of 18,000 shares of
the Class A Common Stock, par value $.01 per share (such shares being the
"Grantor Shares") of HealthCore Medical Solutions, Inc. ("HealthCore").
W I T N E S S E T H:
WHEREAS, HealthCore is a party to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated July 1, 1999, between HealthCore and
Adatom, Inc., a California corporation ("Adatom"), pursuant to which Adatom is
to be merged with and into HealthCore (the "Merger"), subject to the
satisfaction of certain conditions, including, without limitation, the
affirmative vote of a majority of the outstanding shares of Common Stock of
HealthCore (other than the shares owned by Neal J. Polan, the Chief Executive
Officer of HealthCore (the "Grantee")) in favor of the Merger; and
WHEREAS, HealthCore and the Grantor are parties to that
certain Amended and Restated Escrow Agreement (the "Escrow Agreement"), dated as
of July 31, 1997, among HealthCore, the Grantor, the other stockholders of
HealthCore who are signatories to the Escrow Agreement (together with the
Grantor, the "Escrow Shareholders") and American Stock Transfer & Trust Company,
pursuant to which certain of the shares of Common Stock of HealthCore owned
beneficially and of record by the Escrow Shareholders are held in escrow; and
WHEREAS, as contemplated by the Merger Agreement, the Grantor
and HealthCore are simultaneously herewith executing and delivering that certain
Termination Agreement, pursuant to which the Grantor and HealthCore have agreed
that, in the event of the consummation of the Merger, and subject to the
affirmative vote of two-thirds of the outstanding shares of HealthCore Class A
Common Stock (the "Common Stock"), excluding the shares held by the Escrow
Stockholders, in favor of the termination of the Escrow Agreement (the "Required
Stockholder Vote"), the Escrow Agreement shall be terminated with respect to the
Grantor and that portion of the Grantor Shares held in escrow (collectively, the
"Escrowed Grantor Shares"), and, in connection therewith, eighty percent (80%)
of the Escrowed Grantor Shares shall be cancelled with the remaining twenty
percent (20%) shall be released from escrow to the Grantor; and
WHEREAS, in accordance with the terms of the Termination
Agreement, and subject to the terms and conditions of this Proxy, the Grantor
desires to grant to the Grantee, as Chief Executive Officer of HealthCore, the
right to vote all of the Grantor Shares.
NOW THEREFORE, the Grantor and the Grantee hereby agree as
follows:
<PAGE>
1. Appointment. The Grantor hereby irrevocably appoints the Grantee as
proxy to vote the Grantor Shares and/or deliver written consents as a
stockholder of HealthCore in respect of the Grantor's ownership of the Grantor
Shares, for and on behalf of the Grantor. The proxy to vote the Grantor Shares
granted hereunder shall apply with respect to any and all actions of the
stockholders of HealthCore taken on or after the date hereof (whether taken at a
meeting or by written consent), for any and all purposes and on any and all
matters with respect to which the Grantor Shares are entitled to be cast,
including, without limitation, the approval of the Merger and the transactions
contemplated thereby. The Grantor grants this Proxy in consideration of
HealthCore's execution and delivery of the Termination Agreement. The Grantor
acknowledges and agrees that the Board of Directors of HealthCore believes that
the consummation of the Merger and the transactions contemplated thereby are in
the best interest of HealthCore and its shareholders, and this Proxy shall be
deemed to be coupled with an interest and irrevocable.
2. General Provisions. This Proxy may be voted or acted upon by the
Grantee until this Proxy is amended, modified or terminated as provided herein.
(a) Amendment and Modification. This Proxy shall only be
amended or modified only with the express written consent of the Grantor, the
Grantee and HealthCore.
(b) Termination. This Proxy shall terminate and be of no
further force or effect immediately upon the earliest of (a) the first date by
which both (i) the closing of the transactions contemplated by the Merger
Agreement shall have occurred, and (ii) HealthCore shall have received the
Required Stockholder Vote, (b) the termination of the agreements contained in
the Merger Agreement, and (c) with respect to the Grantor Shares other than the
Escrowed Grantor Shares, the receipt by both the Grantee and HealthCore of
written notice of the consummation of the sale of such shares.
3. No Duty. The Grantee may act in any manner, and may take into
account such factors (including, without limitation, the objectives and best
interest of the Grantee) as may the Grantee may deem appropriate, in his sole
and absolute discretion, and therefore the Grantee shall have no obligation in
exercising this Proxy to act as a fiduciary for or in the best interest of the
Grantor, HealthCore or any of the employees, officers, directors or other
shareholders thereof.
4. Binding Effect. This Proxy shall be binding upon, and inure to the
benefit of the Grantor, the Grantee and HealthCore, and their respective
successors, assigns, heirs, executors and administrators.
Dated: July ____, 1999.
1164 ASSOCIATES
By: /s/Howard Walfish
--------------------------
Name: Howard Walfish
Title: Partner
<PAGE>
Acknowledged and Agreed:
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, CEO
/s/Neal J. Polan Date: 7/1/99
------------------------------------- ------------------
Neal J. Polan, as Proxy
<PAGE>
October 12, 1999
Adatom.com, Inc.
As the surviving corporation in the Merger of Adatom, Inc.
With and into HeatlthCore Medical Solutions, Inc.
920 Hillview Court - Suite 160
Milpitas, CA 95030
Dear Sirs and Mesdames:
Reference is made to the Agreement and Plan of Merger dated as
of July 1, 1999, as amended, between HealthCore Medical Solutions, Inc.
("HealthCore") and Adatom, Inc ("Adatom"), under which Adatom has agreed to
merge with and into HealthCore with HealthCore surviving as the surviving
corporation under the name "Adatom.com, Inc."(the "Surviving Corporation").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Merger Agreement.
To induce Adatom and HealthCore to consummate the Merger, the
undersigned hereby agrees that, without the prior written consent of the
Surviving Corporation (which consent, where the undersigned is an affiliate of
the Surviving Corporation, shall require the consent of the two independent
directors on the Board of Directors of the Surviving Corporation), it will not,
during the period commencing on the Effective Time and ending 180 days after the
Effective Time, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of the Common Stock of the Surviving
Corporation (the "Common Stock") or any securities convertible into or
exercisable or exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. Commencing on the 61st day
after the Effective Date, the foregoing sentence shall not apply to 125,000
shares of Common Stock currently beneficially owned by the undersigned and in no
event shall the foregoing sentence apply to transactions relating to shares of
Common Stock or other securities acquired in open market transactions at any
time after the Effective Time.
Very truly yours,
/s/Neal J.Polan
-----------------------------------------
Neal J. Polan
20 Cameron Drive
-----------------------------------------
(Address) Greenwich, CT
<PAGE>
================================================================================
REGISTRATION RIGHTS AGREEMENT
by and among
HEALTHCORE MEDICAL SOLUTIONS, INC.
and
NEAL J. POLAN, individually and
as custodian for BARRETT POLAN
October 12, 1999
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, dated as of October 12, 1999, is entered into by and
among HealthCore Medical Solutions, Inc., a corporation organized under the laws
of Delaware (the "Company") and Neal J. Polan, individually and as custodian for
Barrett Polan and residing at 20 Cameron Drive, Greenwich, Connecticut 06831
(collectively, the "Shareholder").
W I T N E S S E T H:
WHEREAS, on the date hereof, the Company is consummating a merger with
Adatom, Inc., a California corporation; and
WHEREAS, as a condition to the closing of the merger, the Company has
agreed to grant to the Shareholder the registration rights provided for herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
Article I. Certain Definitions.
--------------------
For the purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
"Advice" is as defined in Section 2.05.
"Agreement" means this Agreement, as from time to time assigned,
supplemented, amended or modified in accordance with the terms hereof.
"Company" is as defined in the preamble.
"Demand Registration" is as defined in Section 2.01.
"Demand Request" is as defined in Section 2.01.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Indemnified Person" is as defined in Section 2.09(a).
"Material Adverse Effect" is as defined in Section 2.03(a).
"NASD" is as defined in Section 2.04(p).
"Polan Shares" means (i) the 165,000 shares of Class A Common Stock $.01
par value, of the Company issued to Shareholder on September 10, 1999; (ii) the
shares issued or issuable upon exercise of the warrant to purchase 142,000
shares of Class A Common Stock $.01 par value of the Company, which warrant is
currently exercisable in full at an exercise price of $1.00 per share and was
issued to Shareholder in September 1997 and expires on September 2007; (iii)
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<PAGE>
the 28,400 shares of Class A Common Stock, $.01 par value, of the Company
issuable upon exchange of a separate warrant to purchase 142,000 shares of Class
A Common Stock $.01 par value, of the Company, at $1.00 per share, which warrant
is not currently exercisable and was issued to Shareholder in September, 1997;
(iv) 25,200 shares of Class B Common Stock, $.01 par value, owned by Shareholder
, which shares are being released from escrow pursuant to an escrow termination
agreement dated July 1, 1999 between the Company and Shareholder; and (v) 7,200
shares of Class B Common Stock, $.01 par value, owned by Shareholder as
custodian for Barrett Polan, which shares also are being released from escrow
pursuant to such escrow termination agreement (together with any Shares or other
securities into which such shares or other securities may be changed, converted
or exchanged).
"Proposed Registration" is as defined in Section 2.02(a).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended, or any similar federal law then in force.
"Shareholder" is as defined in the preamble.
"Shares" means common stock of the Company, par value $.01 per share
issued or issuable upon exercise of convertible securities, warrants or options.
"Suspension Notice" is as defined in Section 2.05.
Article II. Registration Rights.
--------------------
Section 2.01 Demand Registration.
(a) At any time after February 9, 2000, provided the Company shall not
prior to such date have caused a registration statement to have been declared
effective by the SEC pursuant to Section 2.02 covering all of the Polan Shares,
the Shareholder may require the Company (pursuant to a written notice to the
Company) to effect the registration under the Securities Act of Polan Shares of
the Company other than pursuant to a registration statement on Form S-1 (a
"Demand Registration"). Such request (a "Demand Request") by the Shareholder
shall (i) specify the class and number of Polan Shares which the Shareholder
intends to sell or dispose of, and (ii) state the intended method or methods by
which the Shareholder intends to sell or dispose of such Polan Shares. In
connection with any underwritten public offering, the underwriter thereof shall
be selected by the Shareholder, subject to the consent of the Company, which
shall not be unreasonably withheld. Upon receipt of a Demand Request, the
Company shall (as requested) cause to be filed, within thirty (30) calendar days
of the date of delivery to the Company of the request, a registration statement
covering such Polan Shares which the Company has been so requested to register,
providing for the registration under the Securities Act of such Polan Shares to
the extent necessary to permit the disposition of such Polan Shares to be
registered in accordance with the intended method of distribution specified in
such request. The Shareholder shall have the right to exercise only one such
Demand Registration; provided, however, if the Shareholder shall not be entitled
to include all of its Polan Shares in a Demand Registration, the Shareholder may
be entitled to make an additional Demand Request,
2
<PAGE>
notwithstanding the registration of certain of the Polan Shares pursuant to the
then pending Demand Registration.
(b) Notwithstanding the foregoing, the Company shall not be required to
effect any registration statement pursuant to this Section 2.01 (i) within 90
days after the effective date of any other registration statement of the
Company's securities or (ii) during the pendency of any Demand Blackout Period.
(c) If any of the Company's investment banker or any underwriter
determines in good faith that the registration statement and distribution of the
Polan Shares (or the use of the registration statement or related prospectus)
would materially interfere with any pending financing, merger, acquisition or
corporate reorganization involving the Company (or would require premature
disclosure thereof), and promptly gives the Shareholder written notice of such
determination following its Demand Request, the Company shall be entitled to
postpone the filing of the registration statement otherwise required to be
prepared and filed by the Company pursuant to Section 2.01 for a reasonable
period of time, not to exceed 90 days (a "Demand Blackout Period"). The Company
shall promptly notify the Shareholder of the expiration or earlier termination
of any Demand Blackout Period, and upon such expiration or termination the
Company shall immediately file the registration statement pursuant to Section
2.01. The rights under this Section 2.01 shall be separate and distinct from any
other rights the Shareholder may have under Section 2.02.
Section 2.02 Piggyback Rights.
(a) Each time that the Company proposes for any reason to register any
of its securities under the Securities Act (a "Proposed Registration"), other
than pursuant to a registration statement on Form S-4 or similar or successor
form, the Company shall promptly give written notice of such Proposed
Registration to the Shareholder (which notice shall be given not less than
thirty (30) calendar days prior to the effective date of the Company's
registration statement) and the Shareholder shall have the right to request
inclusion of any of the Polan Shares in the Proposed Registration, unless, in
the case of a Proposed Registration on Form S-8, the Polan Shares are ineligible
for registration on Form S-8. No registration pursuant to this Section 2.02
shall relieve the Company of its obligation to register Polan Shares pursuant to
Section 2.01.
(b) The Shareholder shall have twenty-five (25) calendar days from the
receipt of such notice to deliver to the Company a written request specifying
the number of Polan Shares the Shareholder intends to sell and the Shareholder's
intended method of disposition. The Shareholder shall have the right to withdraw
its request for inclusion of all or a portion of such Polan Shares in any
registration statement pursuant to this Section 2.02 by giving written notice to
the Company of such withdrawal. Subject to Section 2.03 below, the Company shall
include in such registration statement all such Polan Shares so requested to be
included therein; provided, however, that the Company may at any time withdraw
or cease proceeding with any such piggyback registration if it shall at the same
time withdraw or cease proceeding with the registration of all other equity
securities originally proposed to be registered.
(c) In the event that the Proposed Registration by the Company is, in
whole or in part, an underwritten public offering of securities of the Company,
any request under Section 2.02(b) hereof must specify that the Polan Shares be
included in the underwriting on the same
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<PAGE>
terms and conditions as the shares otherwise being sold through underwriters
under such registration.
Section 2.03 Priority on Registrations.
(a) If the managing underwriter advises the Company that the inclusion
of such Polan Shares in a proposed Registration pursuant to Section 2.02 would
materially and adversely affect the price or success of the offering (a
"Material Adverse Effect "), the Company will be obligated to include in such
registration statement, as to the Shareholder (subject to the priority rules set
forth below), that portion of the Polan Shares the Shareholder has requested to
be registered equal to the ratio which the Shareholder's requested Polan Shares
bears to the total number of shares requested to be included in such
registration statement by all other persons (other than the Company, if such
registration has been initiated by the Company for securities to be offered by
the Company) who have requested that their shares be included in such
registration statement, provided, however, if in the judgement of the managing
underwriter no such reduction would eliminate such Material Adverse Effect, then
the Company shall have the right to exclude all such Polan Shares from such
registration statement provided no other securities are included and offered for
the account of any other person in such registration statement.. It is
acknowledged by the Shareholder that pursuant to the foregoing provision, the
securities to be included in such registration shall be allocated, (1) first, to
the Company if it initiated the Proposed Registration or to such other third
party who is exercising demand registration rights, and (2) second, to the
Shareholder and to all other persons requesting securities to be included
therein (in accordance with the above-described ratio). If as a result of the
provisions of this Section 2.03(a) the Shareholder shall not be entitled to
include all of its Polan Shares in a registration that the Shareholder has
requested to be so included, the Shareholder may withdraw the Shareholder's
request to include Polan Shares in such registration statement.
(b) The Shareholder may not participate in any registration statement
hereunder unless the Shareholder completes, executes and delivers all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements, including an opinion of its counsel, as are required of any other
shareholders registering shares who are not affiliates of the Company, and shall
furnish such information regarding the Polan Shares and the intended method of
distribution of the Polan Shares as shall be reasonably required to effect such
registration.
Section 2.04 Registration Procedures. Whenever the Shareholder has
requested that any Polan Shares be registered pursuant to the provisions of this
Article II, the Company will use its commercially reasonable efforts to effect
the registration and the sale of such Polan Shares in accordance with the
intended method of disposition thereof as set forth in the written request, and
pursuant thereto the Company shall:
(a) prepare and file with the SEC a registration statement with respect
to such securities on the appropriate forms, and use commercially reasonable
efforts to cause such registration statement(s) to become and remain effective
in accordance with Section 2.04(b) hereof and in accordance with all laws, rules
and regulations applicable thereto;
(b) prepare and file with the SEC such amendments and supplements to
such registration statements and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective until the earlier
of (i) the sale of all Polan Shares
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<PAGE>
covered thereby or (ii) the expiration of twelve months from the effective date
of the registration statement, and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Polan Shares
covered by such registration statement;
(c) furnish to the Shareholder pursuant to Section 2.01 or Section 2.02
such number of copies of any summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the Shareholder may reasonably request in order
to facilitate the public sale or other disposition of such Polan Shares;
(d) use commercially reasonable efforts to register or qualify the
Shares covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the Shareholder shall reasonably request;
provided, however, that the Company shall not be required to consent to general
service of process for all purposes in any jurisdiction where it is not then
subject to process, qualify to do business as a foreign company where it would
not be otherwise required to qualify or submit to liability for state or local
taxes where it is not otherwise liable for such taxes;
(e) at any time when a prospectus relating thereto covered by such
registration statement is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 2.04(b) hereof, promptly
notify the Shareholder and each underwriter and (if requested by the
Shareholder) confirm such notice in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed and, with
respect to a registration statement or any post-effective amendment, when the
same has become effective, (ii) of the issuance by any state securities or other
regulatory authority of any order suspending the qualification or exemption from
qualification of any of the Polan Shares under state securities or blue sky laws
or the initiation of any proceedings for that purpose, and (iii) of the
happening of any event as a result of which the prospectus included in such
registration, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing and, at the request of the Shareholder, prepare, file and furnish to
the Shareholder a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(f) if the Company has delivered preliminary or final prospectuses to
the Shareholder and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the Shareholder and, if requested, the Shareholder shall immediately cease
making offers of Polan Shares and return all prospectuses to the Company. The
Company shall promptly provide the Shareholder with revised prospectuses and,
following receipt of the revised prospectuses, the Shareholder shall be free to
resume making offers of the Polan Shares;
(g) if any proposed registration effected pursuant to Section 2.01 or
Section 2.02 involves an underwritten public offering cause all Shares to be
listed for trading on the principal national securities exchange (if any) where
the Company's common stock is listed for trading;
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<PAGE>
(h) before filing a registration statement or amendment thereto,
furnish to each Shareholder and its counsel and other representatives and the
underwriters, if any, copies of each such registration statement or amendment
proposed to be filed, which documents shall be made available on a timely basis
for review and comment by the Shareholder, the underwriters (if any) and their
respective representatives;
(i) cooperate with the Shareholder and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall not
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement (if any), and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or such sellers may request and keep available and make
available to the Company's transfer agent prior to the effectiveness of such
registration statement a supply of such certificates;
(j) in the event that the Shareholder may be considered to be a
"control person," promptly make available for inspection by the Shareholder, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any the Shareholder or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties of
the Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration statement;
provided, that, unless the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the registration statement or the release
of such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (n) if (i) the Company believes, after
consultation with counsel for the Company, that to do so would cause the Company
to forfeit an attorney-client privilege that was applicable to such information
or (ii) if either (A) the Company has requested and been granted from the SEC
confidential treatment of such information contained in any filing with the SEC
of documents provided supplementally or otherwise or (B) the Company reasonably
determines in good faith that such Records are confidential and so notifies the
Inspectors in writing unless prior to furnishing any such information with
respect to (i) or (ii) the Shareholder requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; and provided, further, that the Shareholder agrees that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company at its
expense, to undertake appropriate action and to prevent disclosure of the
Records deemed confidential;
(k) provide, if required, a CUSIP number for the Shares included in any
registration statement not later than the effective date of such registration
statement;
(l) cooperate with the Shareholder and each underwriter participating
in the disposition of such Shares and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. ("NASD");
(m) during the period when the prospectus is required to be delivered
under the Securities Act, promptly file all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c) or 14 of the Exchange Act;
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<PAGE>
(n) notify the Shareholder promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or for
additional information;
(o) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company is required in connection with the distribution of
the Shares;
(p) advise the Shareholder, promptly after it shall have received
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for such purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal at the
earliest possible moment if such stop order should be issued; and
(q) in the case of a Demand Request pursuant to Section 2.01 if the
Shareholder so requests, to request acceleration of effectiveness of the
registration statement from the SEC, provided at the time of such request the
Company does not, in good faith, believe it is necessary to amend further the
registration statement in order to comply with the provisions of Section 2.04.
If the Company wishes to further amend the registration statement prior to
requesting acceleration, it shall have such time as is reasonable given the
nature of the amendment to so amend prior to requesting acceleration.
Section 2.05 Suspension of Dispositions. The Shareholder agrees that
upon receipt of any notice (a "Suspension Notice") from the Company of the
happening of any event of the kind described in Section 2.04(e)(iii), the
Shareholder will forthwith discontinue disposition of Polan Shares that have
been registered under this Article 2 until the Shareholder's receipt of the
copies of the supplemented or amended prospectus, or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, the Shareholder will deliver to the Company all copies, other than
permanent file copies then in the Shareholder's possession, of the prospectus
covering such Shares current at the time of receipt of such Suspension Notice.
In the event the Company shall give any such Suspension Notice, the time period
regarding the effectiveness of registration statements set forth in Section
2.04(b) hereof shall be extended by the number of days during the period from
and including the date of the giving of the Suspension Notice to and including
the date when each seller of Shares covered by such registration statement shall
have received the copies of the supplemented or amended prospectus or the
Advice. The Company shall use its commercially reasonable efforts and take such
actions as are reasonably necessary to render the Advice as promptly as
practicable.
Section 2.06 Cooperation upon a Registration. The Shareholder and the
Company agree that, in connection with any exercise of registration rights
pursuant to this Article 2, the Shareholder will authorize, and will authorize
and direct the Company to take, such actions as are necessary or appropriate to
effectuate such registration. In addition, the Shareholder agrees to cooperate
fully with the Company and the underwriters of any underwritten public offering
in the preparation of all documentation necessary or desirable to effectuate any
registration of any Polan Shares under the Securities Act pursuant to this
Article 2, or registration or qualification of any Polan Shares pursuant to
Section 2.04(d) hereof.. In addition, the Shareholder shall notify the Company,
at any time when a prospectus is required to
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<PAGE>
be delivered under applicable law, of the happening of any event as a result of
which the prospectus included in the applicable registration statement, as then
in effect, in each case with respect to the information provided by the
Shareholder, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. The
Shareholder shall thereafter take the actions required by Section 2.05.
Section 2.07 Expenses. The Company shall pay all expenses incurred by
the Company in complying with Sections 2.01, 2.02 and 2.04 hereof, including,
without limitation, all registration and filing fees (including all expenses
incident to filing with the NASD), fees and expenses of complying with the
securities or blue sky laws of all such jurisdictions in which the Shares are
proposed to be offered and sold (including reasonable fees and disbursements of
counsel in connection with blue sky qualification of Shares), rating agency
fees, printing expenses, messenger and delivery expenses, the Company's internal
expenses (including without limitation all salaries and expenses of its officers
and employees performing legal or accounting duties), fees and expenses incurred
in connection with any listing of the Shares, fees and expenses of counsel for
the Company and its independent certified public accountants (including the
expenses of any special audit or cold comfort letters required by or incident to
such performance), securities act liability insurance (if the Company elects to
obtain such insurance) and fees and disbursements of underwriters (to the extent
the Company is liable therefor under the terms of any underwriting agreement),
whether or not any registration statement becomes effective; provided, however,
that all underwriting discounts and selling commissions applicable to the Shares
covered by registrations effected pursuant to Section 2.01 or Section 2.02
hereof shall be borne by the Shareholder, in proportion to the number of Shares
sold by the Shareholder, and except as expressly provided in this Section 2.07,
in no event shall the Company pay any fees or expenses of or attributable to the
Shareholder or any counsel, accountants or other persons retained or employed by
the Shareholder.
Section 2.08 Indemnification.
(a) In the event of any registration of any Shares under the Securities
Act pursuant to this Article 2 or registration or qualification of any Shares
pursuant to Section 2.04(d) hereof, the Company shall indemnify and hold
harmless the Shareholder, each director, officer, employee, trustee, and partner
of the Shareholder and each other person, if any, who controls any of the
foregoing persons, within the meaning of the Securities Act (each, an
"Indemnified Person"), against any losses, claims, damages, liabilities or
expenses, joint or several, to which any of the foregoing persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, are related
to, result from or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement under which
such Shares were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or any document incident to registration or qualification of any Shares pursuant
to Section 2.04(d) hereof, or arise out of, are related to, result from or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or, with respect to any prospectus, necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or any violation by the Company of the state securities or blue sky
laws applicable to the Company and relating to
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action or inaction required of the Company in connection with such registration
or qualification under such state securities or blue sky laws. The Company shall
reimburse on demand each Indemnified Person for any legal or any other costs and
expenses reasonably incurred by any of them in connection with investigating,
preparing for, defending or settling any such loss, claim, damage, liability or
action by any governmental agency or body; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in said
registration statement, preliminary or final prospectus or amendment or
supplement thereto or any document incident to registration or qualification of
any Shares pursuant to Section 2.04(d) hereof, in reliance upon and in
conformity with written information furnished to the Company by the Shareholder,
underwriter, broker, other person or controlling person specifically for use in
the preparation thereof or arises out of or is based upon the Indemnified
Person's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
Indemnified Person with a sufficient number of copies of the same.
(b) Before Shares shall be included in any registration pursuant to
this Article II, the Shareholder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement and prospectus, and the
Shareholder shall have agreed to indemnify and hold harmless (in the same manner
and to the same extent as set forth in paragraph (a) above) the Company, each
member of the Board of Directors of the Company, each officer of the Company who
signs such registration statement, every other participating shareholder and any
person who controls the Company within the meaning of the Securities Act, with
respect to any untrue statement or omission from such registration statement,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, if such untrue statement or omission was made
in reliance upon and in conformity with such written information furnished to
the Company by the Shareholder or such underwriter for use in the preparation of
such registration statement, preliminary prospectus, final prospectus or
amendment or supplement; provided, however, that the maximum amount of liability
in respect of such indemnification shall be limited to an amount equal to the
net proceeds actually received by the Shareholder from the sale of Shares
effected pursuant to such registration.
(c) Promptly after receipt by an Indemnified Person of notice of the
commencement of any action involving a claim referred to in Section 2.08(a) or
(b) hereof, such Indemnified Person will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 2.08, give written notice
to the latter of the commencement of such action (provided that the failure to
give such notice shall not limit the rights of such Indemnified Person to the
extent that such failure or delay in notifying the indemnifying party does not
prevent the indemnifying party from presenting a proper defense against the
claim). In case any such action is brought against an Indemnified Person, the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Person, and, after notice to such Indemnified Person from the
indemnifying party of its election to assume the defense thereof; provided,
however, that, if any Indemnified Person shall have reasonably concluded that
there may be one or more legal defenses available to such Indemnified Person
which are different from, in conflict with or additional to those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon
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matters beyond the scope of the indemnity agreement provided in this Section
2.08, or if the indemnifying party fails to take diligent action to defend such
claim within twenty (20) calendar days following notice thereof from the
Indemnified Person, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, and such
indemnifying party shall reimburse such Indemnified Person and any person
controlling such Indemnified Person for the fees and expenses of counsel
retained by the Indemnified Person which are reasonably related to the matters
covered by the indemnity agreement provided in this Section 2.08. If the
indemnifying party does assume its own defense as permitted hereunder, from such
time the Indemnified Person shall bear the expenses of its own separate counsel.
If such defense is not assumed by the indemnifying party as permitted hereunder,
the indemnifying party will not be subject to any liability for any settlement
made by the Indemnified Person without its written consent, which consent shall
not be unreasonably withheld. If such defense is assumed by the indemnifying
party pursuant to the provisions hereof, such indemnifying party shall not make
any settlement of the applicable claim indemnified against hereunder without the
written consent of the Indemnified Person or persons, which consent shall not be
unreasonably withheld. An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any Indemnified Person, a conflict of interest may exist between such
Indemnified Person and any other such Indemnified Person with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and disbursements of such additional counsel or counsels.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which an Indemnified Person
makes a claim for indemnification pursuant to this Section 2.08, but it is
judicially determined that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 2.08 provides for indemnification in
such case, then the Company and the Shareholder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject as is
appropriate to reflect, as between the Company and the Shareholder, on the one
hand, and the underwriter on the other hand, the relative fault of the Company
and the Shareholder in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, it being understood
that the parties acknowledge that the overriding equitable consideration to be
given effect in connection with this provision is the ability of one party or
the other to correct the statement or omission which resulted in such losses,
claims, damages or liabilities, and that it would not be just and equitable if
contribution pursuant hereto were to be determined by pro rata allocation or by
any other method of allocation which does not take into consideration the
foregoing equitable considerations. Notwithstanding the foregoing, (i) the
Shareholder will not be required to contribute any amount in excess of the net
proceeds to it of all Shares sold by it pursuant to such registration statement,
and (ii) no person guilty of fraudulent misrepresentation, within the meaning of
Section 11(f) of the Securities Act, shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation. If
indemnification is available under this Section 2.08, the indemnifying parties
shall indemnify each Indemnified Person to the full extent provided in Section
2.08(a) and Section 2.08(b) without regard to the relative fault of said
indemnifying party or Indemnified Person or any other equitable consideration
provided for in this Section 2.08(d).
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(e) Notwithstanding any of the foregoing, if in connection with an
underwritten public offering of any Shares, the Company, the Shareholder and the
underwriters enter into an underwriting or purchase agreement relating to such
offering which contains provisions covering indemnification among the parties,
the indemnification provided thereunder shall be in lieu of the indemnification
provided to the Shareholders hereunder.
(f) The indemnification and contribution required by this Section 2.09
shall be made by periodic payment of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred; provided, that the party receiving such
indemnification or contribution provides a bond or other form of security
reasonably acceptable to the indemnifying or contributing party and provided,
further, if a court of competent jurisdiction finally determines that any
Indemnified Person which has received payments hereunder does not have an
indemnification right under this Section 2.08 for any reason, then such
Indemnified Person shall within five (5) calendar days of such final
determination, refund all amounts received hereunder to the Company or the
Shareholder, as the case may be.
(g) The indemnification and contribution provided for hereunder will
remain in full force and effect regardless of any investigation made by or on
behalf of any Indemnified Person and will survive the transfer of Shares.
Article III. Miscellaneous.
--------------
Section 3.01 Notices. Any and all notices, consents, offers,
acceptances, or any other communication provided for herein shall be sufficient
if given in writing and deemed received when delivered by first class,
registered or certified mail, postage prepaid or overnight courier or hand
delivery, or when sent by facsimile transmission (confirmed by facsimile machine
report and with a confirmation letter sent by first class mail, postage prepaid)
which shall be addressed, or sent to the address or telecopier number of the
party set forth below its signature hereto or, in each case, such other address
or telecopier number, as the case may be, as such party may from time to time
designate in writing to the other parties.
Section 3.02 Amendment and Waiver. No change or modification of, or
waiver of compliance with, this Agreement shall be valid unless the same shall
be in writing and signed by all of the parties hereto.
Section 3.03 Termination. This Agreement will terminate at the earlier
of the date on which all the Polan Shares have been sold by the Shareholder (or
a permitted assignee hereunder) or the second anniversary of the date hereof.
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Section 3.04 No Waiver. No failure or delay on the part of the Company
or the Shareholder in exercising any right, between the Company and the
Shareholder shall operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the simultaneous or
later exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which the Company or the Shareholder would otherwise have. No notice to
or demand on the Company or the Shareholder, as the case may be, in any case
shall entitle the Company or the Shareholder, as the case may be, to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Company or the Shareholder to take any other or
further action in any circumstances without notice or demand.
Section 3.05 Specific Performance. Each party to this Agreement
acknowledges that the other parties will suffer irreparable injury in the event
of any breach of any provision of this Agreement and that therefore the remedy
at law for any breach or threatened breach of any such provision of this
Agreement will be inadequate. Accordingly, upon a breach or threatened breach of
any such provision of this Agreement by any party hereto, the other parties
shall, in addition and without prejudice to any of the rights and remedies they
may have, be entitled as a matter of right, without proof of actual damages, to
seek specific performance of such provisions of this Agreement and to such other
injunctive or equitable relief to enforce, or prevent any violations (whether
anticipatory, continuing or future) of, such provisions of this Agreement.
Section 3.06 Counterparts and Headings. This Agreement may be executed
in two 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. All
headings and any cover page are inserted for convenience or reference only and
shall not affect its meaning or interpretation.
Section 3.07 Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.
Section 3.08 Expenses. Except as provided in Section 2.08 hereto, each
of the parties to this Agreement shall bear its own expenses, including, without
limitation, the fees and disbursements of its respective counsel, in connection
with the negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
Section 3.09 Governing Law. This Agreement will be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
U.S.A., without regard to its conflict of law rules.
Section 3.10 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Company and its successors, and the
Shareholder and its successors and assigns; provided that the rights and
obligations of the Shareholder hereunder shall inure to the benefit of and be
binding upon any transferee of the Shareholder only if such transferee (i) is a
spouse or child or a trust established for the benefit of the Shareholder's
spouse, child or children, or a limited liability company or limited
partnership, the members or partners of which are members of the Shareholder's
immediate family, and (ii) agrees in writing to be bound by the provisions of
this Agreement.
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Section 3.11 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable, the remaining provisions hereof shall
nevertheless continue in full force and effect as though the illegal, invalid or
unenforceable provisions were not a part hereof, and the parties shall exert
their best efforts to amend this Agreement to include a provision which is
legal, valid and enforceable, or to take such other action, which in either case
carries out the original intent of the parties.
Section 3.12 Complete Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous arrangements or understandings, whether
written or oral, between or among any of the parties hereto, with respect to the
subject matter hereof.
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Section 3.13 Further Assurances. Each of the parties to this Agreement
agrees to execute such other documents and take such other action as may be
reasonably necessary to implement and carry out the intent of this agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/David L. Mullikin
---------------------------
Name: David L. Mullikin
Title:President
Notice Address:
11904 Blue Ridge Boulevard
Grandview, Missouri 64030
Attention: Chairman
Telecopier:
with a copy to:
Richard S. Barton
Adatom, Inc.
920 Hillview Court
Milpitas, CA 95035
NEAL J. POLAN,
individually and as custodian
for Barrett Polan
/s/Neal J.Polan
-------------------------------------
Notice Address:
20 Cameron Drive
Greenwich, CT 06831
AGREED AND ACCEPTED
ADATOM, INC.
By: /s/ Richard S. Barton
--------------------------------------
Name: Richard S. Barton
Title: Chief Executive Officer
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