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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
The TriZetto Group, Inc.
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(Name of Issuer)
Common Stock, $0.001 par value per share
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(Title of Class of Securities)
449934108
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(CUSIP Number)
Jared Finkelstein
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
(203) 222-3486
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 16, 2000
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that 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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*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 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP NO. 449934108
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
IMS Health Incorporated; I.R.S. Identification No. 06-1506026
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(A) [ ]
(B) [X]**
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
Not Applicable
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 10,859,694
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
10,859,694 shares
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.96%
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14. TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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** See Item 4.
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ITEM 1. SECURITY AND ISSUER.
This amended and restated statement on Schedule 13D (the
"Statement") relates to the Common Stock, par value $0.001 per share (the
"TriZetto Common Stock"), of The TriZetto Group, Inc. ("TriZetto"), a Delaware
corporation.
The address of the principal executive office of TriZetto is: The
TriZetto Group, Inc., 567 San Nicolas Drive, Suite 360, Newport Beach,
California 92660.
ITEM 2. IDENTITY AND BACKGROUND.
The principal business address of IMS Health Incorporated, a
Delaware corporation ("IMS"), is: 200 Nyala Farms, Westport, Connecticut 06880.
IMS is a provider of information solutions to the pharmaceutical and healthcare
industries.
(a)-(c); (f) The name, business address, present principal
occupation or employment, and the name and principal business of any corporation
or other organization in which such employment is conducted of each of the
directors and executive officers, as applicable, of IMS is set forth in Exhibit
A hereto. Except as otherwise indicated in Exhibit A hereto, each person listed
in Exhibit A hereto is a citizen of the United States.
(d)-(e) During the last five years, none of IMS or, to the
knowledge of IMS, any of the persons listed on Exhibit A hereto, (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or
State securities laws, or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
IMS acquired beneficial ownership of the 10,859,694 shares of
TriZetto Common Stock to which this Statement relates pursuant to (i) Voting
Agreements, dated as of May 16, 2000 (each, a "Voting Agreement", and
collectively, the "Voting Agreements"), between IMS and certain stockholders
of TriZetto as listed in Exhibit A to each Voting Agreement (the
"Stockholders") and (ii) an irrevocable proxy of each of the Stockholders,
dated May 16, 2000 (collectively, the "Proxies"), which was delivered by each
Stockholder to IMS on May 16, 2000 in accordance with the Voting Agreements.
For a description of the Voting Agreements and the Proxies, see "Item 4.
Purpose of Transaction" below. Copies of the Voting Agreements and the
Proxies are filed as Exhibits B through I respectively, hereto and Exhibits B
through I are specifically incorporated herein by reference in response to
this Item 3.
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ITEM 4. PURPOSE OF TRANSACTION.
(a)-(j) The purpose of IMS's acquisition of beneficial ownership of the
10,859,694 shares of TriZetto Common Stock to which this Statement relates is to
facilitate the consummation of the transactions contemplated by the Agreement
and Plan of Reorganization, dated as of May 16, 2000 (the "Merger Agreement"),
among TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of TriZetto ("Merger Sub"), IMS, and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("Erisco"), pursuant to which Merger Sub will merge with and into Erisco (the
"Merger").
Except as otherwise provided in this Statement, capitalized terms that
are used but not otherwise defined in this Statement shall have the meaning
assigned to such terms in the Merger Agreement, a copy of which was filed as
Exhibit 2.1 to IMS's Current Report on Form 8-K, filed May 17, 2000 and which is
incorporated herein by reference in its entirety.
Pursuant to Instructions For Cover Page (2) to this Schedule 13D,
the following is a description of the relationship between IMS and the
Stockholders under the Voting Agreements but is not an affirmation by IMS of the
existence of a group for purposes of Section 13(d)(3) or Section 13(g)(3) of the
Securities Exchange Act of 1934 (the "Act") and Rule 13d-5(b)(1) thereunder.
In order to induce IMS to enter into the Merger Agreement, the
Stockholders entered into the Voting Agreements with IMS. The Voting Agreements
and Proxies supercede the Voting Agreements between the Stockholders and IMS and
the proxies delivered by such Stockholders to IMS, in each case dated as of
March 28, 2000 (collectively, the "Original Voting Agreements and Original
Proxies"), entered into and delivered, as the case may be, by the Stockholders
as contemplated by the Original Merger Agreement (as defined below). The
Original Voting Agreements and Original Proxies were filed with IMS's statement
on Schedule 13D, filed April 7, 2000.
Pursuant to the Voting Agreements, each of the Stockholders
agreed, among other things, to deliver to IMS an irrevocable proxy to Vote (as
defined in the Voting Agreements) their Shares (as defined in the Voting
Agreements) and any other shares of capital stock of TriZetto acquired by them
after the date of the Voting Agreements and prior to the termination of the
Voting Agreements, including without limitation, all Shares acquired upon the
exercise of Options (as defined in the Voting Agreements) (i) in favor of the
issuance of shares of TriZetto Common Stock to IMS in connection with the Merger
(the "Issuance"), (ii) against any action or agreement that would compete with,
impede, interfere with or tend to discourage the Merger or the Issuance or
inhibit the timely consummation of the Merger or the Issuance, and (iii) against
any action that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto under
the Merger Agreement. In addition, each Stockholder agreed not to transfer or
otherwise dispose of any of their Shares, or any other shares of capital stock
of TriZetto acquired by them after the date of the Voting
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Agreements and prior to the termination of their Voting Agreement, except in
accordance with the Voting Agreements.
As contemplated by the Voting Agreements, on May 16, 2000 the
Stockholders delivered to IMS proxies in respect of the 10,859,694 Shares owned
of record by the Stockholders in the aggregate on such date as listed on Exhibit
A to the Voting Agreements, to be exercised by IMS in accordance therewith.
The foregoing descriptions of the Voting Agreements and the
Proxies are qualified in their entirety by reference to the respective
agreements and proxies, as the case may be, copies of which are filed hereto as
Exhibits B through I, respectively. Exhibits B through I are specifically
incorporated herein by reference in response to this Item 4. The foregoing
descriptions of the Original Voting Agreements and Original Proxies are
qualified in their entirety by reference to the respective agreements and
proxies, as the case may be, copies of which were filed as exhibits to IMS's
statement on Schedule 13D filed April 7, 2000, and are specifically incorporated
herein by reference in response to this Item 4.
The transactions contemplated by the Merger Agreement are
summarized as follows:
On May 16, 2000, TriZetto, Merger Sub, IMS, and Erisco entered
into the Merger Agreement, pursuant to which Merger Sub will merge with and
into Erisco. Erisco will become a wholly owned subsidiary of TriZetto. As
more specifically set forth in the Merger Agreement, IMS will receive a
number of shares of TriZetto Common Stock derived by dividing $255 million by
the average daily closing price of TriZetto Common Stock for the 15 trading
days ending on the third trading day prior to the Closing Date, except that
IMS will receive not less than 8,793,103 shares nor more than 12,142,857
shares of TriZetto Common Stock.
In addition, by execution of the Merger Agreement, IMS and
TriZetto agreed to terminate without liability the Agreement and Plan of
Reorganization, dated as of March 28, 2000, between IMS and TriZetto (the
"Original Merger Agreement"), that provided for the merger of IMS with and into
TriZetto. By their terms, the Original Voting Agreements and Original Proxies
were terminated upon termination of the Original Merger Agreement.
The Merger is intended to be tax-free to both IMS and TriZetto
stockholders and will be accounted for as a purchase of Erisco by TriZetto. As
contemplated by the Merger Agreement, IMS will be entitled to designate one
director-nominee to the TriZetto board of directors.
The Merger is subject to certain regulatory approvals as well as
to approval of the Issuance by TriZetto's stockholders. As set forth above,
stockholders representing more than a majority of the outstanding common stock
of TriZetto have agreed to vote in favor of the Issuance. The Merger is also
conditioned upon TriZetto and IMS entering into a Stockholder Agreement and
Registration Rights Agreement, forms of which are
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attached as exhibits to the Merger Agreement, and a Transitional Services
Agreement, Data Rights Agreement, and HealthWeb License Agreement, the principal
terms of which are more specifically set forth in the Merger Agreement.
The Stockholder Agreement imposes certain restrictions on IMS.
These restrictions include, without limitation: (i) a standard standstill
provision restricting IMS from, among other things, acquiring additional
shares of TriZetto Common Stock until the earlier of the fourth anniversary
of the Closing Date, or the date on which a Change of Control (as defined in
the Stockholder Agreement) of TriZetto shall have occurred or TriZetto shall
have publicly announced its willingness to consider a transaction that would
constitute a Change of Control; (ii) a share transfer restriction that limits
transfers of TriZetto Common Stock by IMS until the earlier of the date two
years after the Closing Date, the date on which IMS beneficially owns less
than 10% of the outstanding TriZetto Common Stock measured as of the Closing
Date, or the date on which a Change of Control of TriZetto shall have
occurred; (iii) a right of first refusal for TriZetto on transfers by IMS of
more than 10% of the outstanding TriZetto Common Stock measured as of the
time of the transfer commencing upon the termination of the share transfer
restriction period and continuing until the date on which IMS beneficially
owns less than 10% of the outstanding TriZetto Common Stock measured as of
the Closing Date (unless a Change of Control of TriZetto shall have
occurred); and (iv) a right of first offer for TriZetto on any transfer of
TriZetto Common Stock by IMS commencing upon the termination of the share
transfer restriction period and continuing until the date on which IMS
beneficially owns less than 10% of the outstanding TriZetto Common Stock
measured as of the Closing Date (unless a Change of Control of TriZetto shall
have occurred). The Stockholder Agreement also grants IMS, for so long as IMS
beneficially owns more than 10% of the outstanding TriZetto Common Stock
measured as of the Closing Date, (i) the right to designate one
director-nominee to the TriZetto Board of Directors and (ii) consent rights
regarding certain transactions by TriZetto, subject, in each case, to earlier
termination of such rights upon the occurrence of certain events.
Pursuant to the Registration Rights Agreement, IMS will be granted
registration rights in respect of the shares of TriZetto Common Stock issued to
it in connection with the Merger.
The Merger Agreement may be terminated by mutual written consent or by
either party if (i) the Merger has not been consummated by December 31, 2000,
(ii) TriZetto's stockholders fail to approve the Issuance, or (iii) there exists
an injunction preventing the Merger. The Merger Agreement may also be terminated
by one party if the other party breaches in any material respect a
representation or warranty or fails to materially perform a covenant, which
breach or failure would give rise to the failure of a condition to be satisfied
and is not cured or incapable of being cured.
The foregoing descriptions of the Merger Agreement, including the
forms of the Stockholder Agreement and Registration Rights Agreement, are
qualified in their entirety by reference to the respective agreements, copies of
which were filed with IMS's Current Report on Form 8-K filed May 17, 2000, each
such form being attached as an
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exhibit to the Merger Agreement. The Merger Agreement and the forms of the
Stockholder Agreement and Registration Rights Agreement are specifically
incorporated herein by reference in response to this Item 4.
Except as set forth in this Statement, the Voting Agreements, the
Proxies, and the Merger Agreement, including the forms of the Stockholder
Agreement and Registration Rights Agreement, each such form being attached as an
exhibit to the Merger Agreement, none of IMS or, to the best of IMS's knowledge,
any of the individuals named in Exhibit A hereto, has any plans or proposals
which relate to or which would result in or relate to any of the actions
specified in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
(a) Pursuant to the Voting Agreements and the Proxies, IMS
beneficially owns 10,859,694 shares of TriZetto Common Stock representing, based
on TriZetto's management representations as of May 12, 2000, approximately
50.96% of the outstanding shares of TriZetto Common Stock.
Except as set forth in this Item 5, none of IMS or, to the best of
IMS's knowledge, any of the individuals named in Exhibit A hereto beneficially
owns any shares of TriZetto Common Stock.
(b) Pursuant to the Voting Agreements and the Proxies, IMS has
shared power to vote 10,859,694 shares of TriZetto Common Stock with the
Stockholders.
IMS shares the power to vote 3,032,681 shares of TriZetto Common
Stock with Raymond D. Croghan. Raymond D. Croghan is a United States citizen
whose business address is: 370 Interlocken Blvd., 4th Floor, Broomfield, CO
80021. His present principal occupation or employment is President, Croghan &
Associates, Inc.
IMS shares the power to vote 1,860,000 shares of TriZetto Common
Stock with Jeffrey Margolis, who beneficially owns such shares of TriZetto
Common Stock through the Margolis Family Trust, UDT 12/23/98, and the Jeffrey H.
Margolis Irrevocable Trust. Jeffrey H. Margolis is a United States citizen whose
business address is: The TriZetto Group, 567 San Nicolas Drive, Suite 360,
Newport Beach, California 92660. His present principal occupation or employment
is Chairman and CEO of TriZetto.
IMS shares the power to vote 295,000 shares of TriZetto Common
Stock with Daniel J. Spirek. Daniel J. Spirek is a United States citizen whose
business address is: 12626 Summit Ridge Rd., Parker, CO 80138. His present
principal occupation or employment is Executive Vice President, Transformation
Services, of TriZetto.
IMS shares the power to vote 250,000 shares of TriZetto Common
Stock with William E. Fisher. William E. Fisher is a United States citizen whose
business address is:
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1304 N. 139th St., Omaha, NE 68154. His present principal occupation or
employment is Chairman of Transaction Systems Architects, Inc.
IMS shares the power to vote 162,595 shares of TriZetto Common
Stock with KFS Management, Inc ("KFS"). The principal business address of KFS
is: 11225 Davenport Street, Suite 103, Omaha, NE 68154. KFS, a South Dakota
corporation, is an entity whose primary business is investment management. The
executive officers of KFS are William E. Fisher, President, Michael Scheier,
Vice President, and John Morey, Secretary and Treasurer. The directors of KFS
are William E. Fisher and Michael Scheier. Each of the executive officers and
directors are United States citizens. Mr. Scheier's and Mr. Morey principal
business address and principal business is the same as that of KFS.
IMS shares the power to vote 2,680,746 shares of TriZetto Common
Stock with Delphi Ventures IV, L.P. The principal business address of Delphi
Ventures IV, L.P. is: 300 Sand Hill Road, Building One, Suite 135, Menlo Park,
CA 94025. Delphi Ventures IV, L.P., a Delaware limited partnership, is a venture
capital firm. Donald J. Lothrop, a director of TriZetto and United States
citizen, is the managing member of Delphi Management Partners IV, LLC, the
general partner of Delphi Ventures IV, L.P. The other members of Delphi
Management Partners IV, LLC are Jim Bochnowski and David Douglass, both United
States citizens. Mr. Lothrop's, Mr. Bochnowski's, Mr. Douglass' and Delphi
Management Partners IV, LLC's business address and principal business is the
same as that of Delphi Ventures IV, L.P.
IMS shares the power to vote 1,289,336 shares of TriZetto Common
Stock with Fidelity Ventures Limited ("FVL"). The principal business address of
FVL is: 82 Devonshire Street, R25C, Boston, Massachusetts, 02109. FVL, a
Massachusetts limited partnership, is a wholly owned subsidiary of FMR Corp, and
is a private equity concern. Fidelity Capital Associates, Inc., a Massachusetts
corporation and a wholly-owned subsidiary of FMR Corp., is the general partner
of FVL. The sole limited partner of FVL is FMR Corp. Information with respect to
the partners of FVL and its directors and executive officers is set forth in
Exhibit F hereto.
IMS shares the power to vote 874,126 shares of TriZetto Common
Stock with Fidelity Investors Limited Partnership ("FILP"). The principal
business address of Fidelity Investors Limited Partnership is: 82 Devonshire
Street, R25C, Boston, Massachusetts, 02109. FILP, a Delaware limited
partnership, is a private equity fund. Fidelity Investors Management, LLC, a
Delaware limited liability company ("FIML"), is the general partner and
investment manager of FILP, and is an investment manager registered under
Section 203 of the Investment Advisers Act of 1940. Information with respect to
the general partner of FILP and its executive officers and directors is set
forth in Exhibit G attached hereto.
IMS shares the power to vote 415,210 shares of TriZetto Common
Stock with Fidelity Investors II Limited Partnership ("FILP II"). The principal
business address of FILP II is: 82 Devonshire Street, R25C, Boston,
Massachusetts, 02109. FILP II, a
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Delaware limited partnership, is a private equity fund. FIML is the general
partner and investment manager of FILP II. Information with respect to the
general partner of FILP II and its executive officers and directors is set forth
in Exhibit G attached hereto.
To the knowledge of IMS none of Raymond D. Croghan, Jeffrey H.
Margolis, Daniel J. Spirek, William E. Fisher, KFS Management, Inc., Delphi
Ventures IV, L.P., Fidelity Venture Limited, Fidelity Investors Limited
Partnership, and Fidelity Investors II Limited Partnership nor to the best of
IMS's knowledge, any of the directors, partners, or officers of the Stockholders
has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or State securities laws, or finding any
violation with respect to such laws.
(c) Except with respect to the transactions contemplated by the
Voting Agreements, the Proxies, the Merger Agreement, including the forms of the
Stockholder Agreement and Registration Rights Agreement, each such form being
attached as an exhibit to the Merger Agreement, the Original Merger Agreement,
and the Original Voting Agreements and Original Proxies, which are described in
response to Item 4 above and incorporated herein by reference, none of IMS, or
to the best of IMS's knowledge, any of the individuals named in Exhibit A
hereto, has effected any transaction in TriZetto Common Stock during the past 60
days. The descriptions of the transactions contemplated by the Voting
Agreements, the Proxies, the Merger Agreement, including the forms of the
Stockholder Agreement and Registration Rights Agreement, each such form being
attached as an exhibit to the Merger Agreement, the Original Merger Agreement,
and the Original Voting Agreements and Original Proxies in Item 4 are qualified
in their entirety by reference to the respective agreements and documents, as
the case may be. Copies of the Voting Agreements and Proxies are filed hereto as
Exhibits B through I, copies of the Merger Agreement, including the forms of the
Stockholder Agreement and Registration Rights Agreement, each such form being
attached as an exhibit to the Merger Agreement, were filed with IMS's Current
Report on Form 8-K filed May 17, 2000, copies of the Original Merger Agreement
and the exhibits thereto were filed with IMS's Current Report on Form 8-K filed
March 31, 2000, and copies of the Original Voting Agreements and Original
Proxies were filed with IMS's statement on Schedule 13D filed April 7, 2000.
Exhibits B through I, IMS's Current Report on Form 8-K filed May 17, 2000, IMS's
Current Report on Form 8-K filed March 31, 2000, and IMS's statement on Schedule
13D filed April 7, 2000 are specifically incorporated herein by reference in
answer to this Item 5.
(d) Except as set forth in this Item 5, no other person is known
by IMS to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of the TriZetto Common Stock
beneficially owned by IMS.
(e) Not applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE SECURITIES OF THE ISSUER.
See "Item 4. Purpose of Transaction" for a description of the
Voting Agreements, the Proxies, the Merger Agreement, including the forms of the
Stockholder Agreement and Registration Rights Agreement, each such form being
attached as an exhibit to the Merger Agreement, the Original Merger Agreement,
and the Original Voting Agreements and Original Proxies, which are qualified in
their entirety by reference to the respective agreements and documents, as the
case may be. Copies of the Voting Agreements and Proxies are filed hereto as
Exhibits B through I, copies of the Merger Agreement, including the forms of the
Stockholder Agreement and Registration Right Agreement, each such form being
attached as an exhibit to the Merger Agreement, were filed with IMS's Current
Report on Form 8-K filed May 17, 2000, and copies of the Original Merger
Agreement and the exhibits thereto were filed with IMS's Current Report on Form
8-K filed March 31, 2000. Exhibits B through I, IMS's Current Report on Form 8-K
filed May 17, 2000, and IMS's Current Report on Form 8-K filed March 31, 2000
are specifically incorporated herein by reference in answer to this Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A Directors and Executive Officers of
IMS Health Incorporated.
Exhibit B Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit C Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit D Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit E Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit F Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit G Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
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Exhibit H Voting Agreement, dated as of May
16, 2000, among the undersigned
stockholders of The TriZetto Group,
Inc. and IMS Health Incorporated.
Exhibit I Proxies, dated as of May 16, 2000,
by the undersigned stockholders of
The TriZetto Group, Inc.
Exhibit J Partners of Fidelity Venture
Limited and directors and executive
officers thereof.
Exhibit K General Partner of FILP and FILP
II and directors and executive
officers thereof.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
Dated: May 19, 2000
IMS HEALTH INCORPORATED
By: /s/ CRAIG R. KUSSMAN
--------------------------------
Name: Craig R. Kussman
Title: Senior Vice President,
Corporate Development
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EXHIBIT 99.A
DIRECTORS AND EXECUTIVE OFFICERS OF
IMS HEALTH INCORPORATED
The name, present principal occupation or employment, and the
name of any corporation or other organization in which such employment is
conducted, of each of the directors and executive officers of IMS Health
Incorporated ("IMS") is set forth below. Except as set forth below each of the
directors and executive officers is a citizen of the United States. The business
address of each director and officer is IMS Health Incorporated, 200 Nyala
Farms, Westport, CT 06880. Unless otherwise indicated, each occupation set forth
opposite an executive officer's name refers to employment with IMS.
Name and Business Present Principal Occupation or Employment
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Directors
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Clifford L. Alexander, Jr. Chairman and Chief Executive Officer, The Dun
& Bradstreet Corporation, Murray Hill, New
Jersey
Victoria R. Fash President and Chief Executive Officer, IMS
Health Incorporated
John P. Imlay, Jr. Chairman, Imlay Investments, Inc., Atlanta,
Georgia
Robert J. Kamerschen Chairman and Chief Executive Officer, DIMAC
Marketing Corporation, Atlanta, Georgia
Robert J. Lanigan Limited Partner, Palladium Equity Partners,
New York, New York
H. Eugene Lockhart President - Consumer Services, AT&T Corp., New
York, New York
M. Bernard Puckett Private Investor, Jackson, Mississippi
William C. Van Faasen President and Chief Executive Officer, Blue
Cross and Blue Shield of Massachusetts,
Boston, MA
Robert E. Weissman Chairman, IMS Health Incorporated
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Name and Business Present Principal Occupation or Employment
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Executive Officers
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Victoria R. Fash President and Chief Executive Officer
Matthew L. Friedman Vice President and Treasurer
Craig S. Kussman Senior Vice President - Corporate Development
James C. Malone Senior Vice President - Finance and
Controller, and Acting Chief Financial Officer
David H. Owen* Senior Vice President - Global Human Resources
David Stevens* Senior Vice President - General Counsel and
Corporate Secretary
Robert E. Weissman Chairman of the Board of Directors
Wayne P. Yetter Chief Operating Officer
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* Citizen of the United Kingdom
* Citizen of the United Kingdom
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Exhibit 99(B)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such Stockholder's
name on EXHIBIT A hereto (such Stockholder's "SHARES") and except as set forth
on EXHIBIT A owns the TriZetto Common Stock free and clear of all liens, claims,
charges, security interests or other encumbrances and, except for this
Agreement,the Merger Agreement and as set forth on EXHIBIT A, there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character to which such Stockholder is a party relating to the pledge,
disposition or Voting of any
<PAGE>
shares of capital stock of TriZetto and there are no Voting trusts or Voting
agreements with respect to such Shares, (b) such Stockholder does not
beneficially own (as such term is used in Rule 13d-3 of the Exchange Act) any
shares of TriZetto Common Stock other than such Shares and does not have any
options, warrants or other rights to acquire any additional shares of capital
stock of TriZetto or any security exercisable for or convertible into shares of
capital stock of TriZetto other than those options, warrants or other rights set
forth opposite such Stockholder's name on EXHIBIT B hereto (such Stockholder's
"OPTIONS") and each Stockholder represents and warrants that such Stockholder
shall not exercise any such Options prior to the termination of this Agreement
except in accordance with Section 6 of this Agreement, (c) such Stockholder has
full power and authority and has taken all actions necessary to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder and this Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, subject to
the Bankruptcy and Equity Exception, (d) other than filings under the Exchange
Act, no notices, reports or other filings are required to be made by such
Stockholder with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (e) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, violate, conflict
with or constitute a breach of, or a default under, the certificate of
incorporation or by-laws of such Stockholder or any or their comparable
governing instruments (if such Stockholder is not a natural person) or result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
modification or acceleration) (whether after the giving of or the passage of
time of both) under any contract to which such Stockholder is a party or which
is binding on it or its assets and will not result in the creation of any lien
on, or security interest in, any of the assets or properties of such
Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action (including, but not limited to,
consenting in accordance with Section 228 of the Delaware General
2
<PAGE>
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares, except as set forth on EXHIBIT A
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages.
3
<PAGE>
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
4
<PAGE>
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
5
<PAGE>
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date specified in a written agreement duly executed and delivered by IMS and
each of the Stockholders, and (iv) December 31, 2000. The parties acknowledge
that the Voting Agreement previously executed on March 28, 2000 is hereby
terminated upon the execution of this Agreement.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
<PAGE>
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ Robert E. Weissman
-----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
By: /S/ Raymond D. Croghan
-----------------------------
Name: Raymond D. Croghan
Title:
Address: 7360 Island Green,
Boulder, CO 80301
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
Raymond D. Croghan 3,032,681
</TABLE>
Notwithstanding the Voting Agreement, this excludes 100,000 shares of TriZetto
Common Stock held by Raymond D. Croghan. In addition, Raymond D. Croghan has or
shall be permitted to pledge shares to collateralize up to $4,000,000 of debt or
other instruments.
On June 10, 1999, Raymond D. Croghan granted Jeffrey H. Margolis the option to
purchase up to 550,000 shares of the common stock owned by Raymond D. Croghan.
Mr. Margolis may exercise his option to purchase these shares for $6.50 per
share up and until June 10, 2004.
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW Shares") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or the Merger Sub under the Merger Agreement. This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
Dated _______________________, 200_
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(C)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholder (the "STOCKHOLDER") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholder wishes to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement except in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. The Stockholder represents and
warrants to IMS that (a) such Stockholder lawfully owns beneficially (as such
term is defined in Rule 13d-3 of the Exchange Act) and of record each of the
shares of Common Stock, par value $0.001 per share, of TriZetto (the "TRIZETTO
COMMON STOCK"), set forth opposite such Stockholder's name on EXHIBIT A hereto
(such Stockholder's "SHARES") free and clear of all liens, claims, charges,
security interests or other encumbrances and, except for this Agreement and the
Merger Agreement, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character to which such Stockholder is a
party relating to the pledge, disposition or Voting of any shares of capital
<PAGE>
stock of TriZetto and there are no Voting trusts or Voting agreements with
respect to such Shares, (b) such Stockholder does not beneficially own (as such
term is used in Rule 13d-3 of the Exchange Act) any shares of TriZetto Common
Stock other than such Shares and does not have any options, warrants or other
rights to acquire any additional shares of capital stock of TriZetto or any
security exercisable for or convertible into shares of capital stock of TriZetto
other than those options, warrants or other rights set forth opposite such
Stockholder's name on EXHIBIT B hereto (such Stockholder's "OPTIONS") and the
Stockholder represents and warrants that such Stockholder shall not exercise any
such Options prior to the termination of this Agreement except in accordance
with Section 6 of this Agreement, (c) such Stockholder has full power and
authority and has taken all actions necessary to enter into, execute and deliver
this Agreement and to perform fully such Stockholder's obligations hereunder and
this Agreement has been duly executed and delivered and constitutes the legal,
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity
Exception, (d) other than filings under the Exchange Act, no notices, reports or
other filings are required to be made by such Stockholder with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by such Stockholder from, any Governmental Entity, in connection with
the execution and delivery of this Agreement by such Stockholder, and (e) the
execution, delivery and performance of this Agreement by such Stockholder does
not, and the consummation by such Stockholder of the transactions contemplated
hereby will not, violate, conflict with or constitute a breach of, or a default
under, the certificate of incorporation or by-laws of such Stockholder or any or
their comparable governing instruments (if such Stockholder is not a natural
person) or result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of or the passage of time of both) under any contract to which such
Stockholder is a party or which is binding on it or its assets and will not
result in the creation of any lien on, or security interest in, any of the
assets or properties of such Stockholder.
2. AGREEMENT TO DELIVER PROXY. The Stockholder agrees to deliver to
IMS on the date hereof an irrevocable proxy substantially in the form attached
hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of approval
of the Issuance and any related matters at any meeting of the stockholders of
TriZetto at which such matters are considered and at every adjournment or
postponement thereof, (b) against any action or agreement that would compete
with, impede, interfere with or tend to discourage the Merger or the Issuance or
inhibit the timely consummation of the Merger and the Issuance, and (c) against
any action or agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of TriZetto or
Merger Sub under the Merger Agreement. The proxy delivered by the Stockholder
pursuant to this Section 2 shall be irrevocable during the term of this
Agreement to the extent permitted under Delaware law. For purposes of this
Agreement, "VOTE" shall include voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in respect of
any action (including, but not
2
<PAGE>
limited to, consenting in accordance with Section 228 of the Delaware General
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. The Stockholder agrees that it will not, nor
will it permit any entity or person under its control to, deposit any of its
Shares or New Shares (as defined in Section 6 hereof) in a Voting trust or
subject any of their Shares or New Shares to any arrangement with respect to the
Voting of such Shares or New Shares other than agreements entered into with IMS.
4. NO PROXY SOLICITATIONS. The Stockholder agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger and the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, the Stockholder agrees not to transfer, sell, offer,
exchange, pledge or otherwise dispose of or encumber any of such Stockholder's
Shares, Options or New Shares; provided, that the Stockholder may transfer such
Stockholder's Shares or New Shares if, prior to such transfer, the transferee of
such Shares or New Shares, as applicable, shall have executed for the benefit of
IMS, a legally binding instrument pursuant to which such transferee agrees to
assume all of such Stockholder's obligations under this Agreement, including the
delivery of an irrevocable proxy to IMS substantially in the form attached
hereto as EXHIBIT C with respect to such transferred Shares or New Shares, as
applicable.
6. ADDITIONAL PURCHASES. The Stockholder agrees that such Stockholder
will not purchase or otherwise acquire beneficial ownership (as such term is
used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common Stock
after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will the
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. The Stockholder also severally agrees that any New
Shares
3
<PAGE>
acquired or purchased by him or her shall be subject to the terms of this
Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
4
<PAGE>
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing
by the party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by
5
<PAGE>
such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10(b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
6
<PAGE>
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement and
(iii) the date specified in a written agreement duly executed and delivered by
IMS and the Stockholder.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ ROBERT E. WEISSMAN
-------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDER:
DELPHI VENTURES IV, L.P.
By: Delphi Management Partners IV, LLC
General Partner
By: /S/ DONALD LOTHROP
----------------------
Name: Donald Lothrop
Title: Managing Member of the General
Partner
Address: 300 Sand Hill Road, Building
One, Suite 135, Menlo Park, CA 94025
8
<PAGE>
EXHIBIT A
STOCKHOLDER
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
Delphi Ventures IV, L.P. 2,680,746
</TABLE>
Notwithstanding the Voting Agreement, this excludes 55,268 shares of TriZetto
Common Stock held by Delphi BioInvestments IV, L.P.
A-1
<PAGE>
EXHIBIT B
STOCKHOLDER OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, between the undersigned and IMS, terminates in accordance with its terms,
at which time this proxy shall expire.
Dated May ___, 2000
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW SHARES") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and between the undersigned and IMS,
at any meetings of stockholders of TriZetto after the date hereof and at any
adjournment or postponement thereof (each, a "TRIZETTO MEETING") FOR approval of
the issuance of TriZetto Common Stock to IMS (the "ISSUANCE") as contemplated by
the Agreement and Plan of Reorganization, dated as of May __, 2000 (the "MERGER
AGREEMENT"), by and among TriZetto, Elbejay Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and
ERISCO Managed Care Technologies, Inc., a New York corporation and a wholly
owned subsidiary of IMS ("ERISCO"), which provides for, among other things, the
merger of Merger Sub with and into Erisco (the "MERGER"), and any related
matters, and AGAINST (a) any action or agreement that would compete with,
impede, interfere with or tend to discourage the Merger or the Issuance or
inhibit the timely consummation of the Merger and the Issuance, and (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto or
Merger Sub under the Merger Agreement, and (ii) to withhold consents with
respect to such New Shares for (a) any action or agreement that would compete
with, impede, interfere with or tend to discourage the Merger or the Issuance or
inhibit the timely consummation of the Merger and the Issuance, and (b) any
action or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of TriZetto or
Merger Sub under the Merger Agreement. This proxy is coupled with an interest
and is irrevocable until such time as the Voting Agreement terminates in
accordance with its terms, at which time this proxy shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(D)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below). In the case
of Fidelity Ventures, Limited, Fidelity Investors Limited Partnership and
Fidelity Investors II Limited Partnership (collectively, the "FIDELITY
ENTITIES"), all references to "Stockholder" shall include only the Fidelity
Entities and shall not include FMR Corp. and its other subsidiaries and
affiliates; Fidelity International Limited and its subsidiaries and affiliates;
directors and officers of FMR Corp. and Fidelity International Limited and their
respective subsidiaries and affiliates; Edward C. Johnson 3d and members of his
family and trusts for their benefit; and any accounts over which FMR Corp. or
Fidelity International Limited or their respective subsidiaries and affiliates
have investment management or advisory responsibilities, including any of the
Fidelity Investments mutual funds.
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement except in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such
<PAGE>
Stockholder's name on EXHIBIT A hereto (such Stockholder's "SHARES") free and
clear of all liens, claims, charges, security interests or other encumbrances
and, except for this Agreement and the Merger Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or Voting of any shares of capital stock of TriZetto and there are
no Voting trusts or Voting agreements with respect to such Shares, (b) such
Stockholder does not beneficially own (as such term is used in Rule 13d-3 of the
Exchange Act) any shares of TriZetto Common Stock other than such Shares and
does not have any options, warrants or other rights to acquire any additional
shares of capital stock of TriZetto or any security exercisable for or
convertible into shares of capital stock of TriZetto other than those options,
warrants or other rights set forth opposite such Stockholder's name on EXHIBIT B
hereto (such Stockholder's "OPTIONS") and each Stockholder represents and
warrants that such Stockholder shall not exercise any such Options prior to the
termination of this Agreement except in accordance with Section 6 of this
Agreement, (c) such Stockholder has full power and authority and has taken all
actions necessary to enter into, execute and deliver this Agreement and to
perform fully such Stockholder's obligations hereunder and this Agreement has
been duly executed and delivered and constitutes the legal, valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, subject to the Bankruptcy and Equity Exception, (d)
other than filings under the Exchange Act, no notices, reports or other filings
are required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder from, any Governmental Entity, in connection with the execution
and delivery of this Agreement by such Stockholder, and (e) the execution,
delivery and performance of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not, violate, conflict with or constitute a breach of, or a default under, the
certificate of incorporation or by-laws of such Stockholder or any or their
comparable governing instruments (if such Stockholder is not a natural person)
or result in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
cancellation, modification or acceleration) (whether after the giving of or the
passage of time of both) under any contract to which such Stockholder is a party
or which is binding on it or its assets and will not result in the creation of
any lien on, or security interest in, any of the assets or properties of such
Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action,
2
<PAGE>
otherwise consenting or withholding consent in respect of any action (including,
but not limited to, consenting in accordance with Section 228 of the Delaware
General Corporation Law) or taking other action in favor of or against any
action. "VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares; provided, that a Stockholder may
transfer such Stockholder's Shares or New Shares if, prior to such transfer, the
transferee of such Shares or New Shares, as applicable, shall have executed for
the benefit of IMS, a legally binding instrument pursuant to which such
transferee agrees to assume all of such Stockholder's obligations under this
Agreement, including the delivery of an irrevocable proxy to IMS substantially
in the form attached hereto as EXHIBIT C with respect to such transferred Shares
or New Shares, as applicable.
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a
3
<PAGE>
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other party has an adequate remedy at law. Each party hereto
agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's seeking or
obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
4
<PAGE>
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing
by the party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE
5
<PAGE>
STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID provision"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such
6
<PAGE>
obligation to the extent necessary to comply with such law, rule or regulation
that is as similar in terms to the original obligation as may be possible while
preserving the original intentions and economic positions of the parties as set
forth herein to the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date 180 days after the date of this Agreement, and (iv) the date specified
in a written agreement duly executed and delivered by IMS and the Fidelity
Entities.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ ROBERT E. WEISSMAN
-----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
FIDELITY VENTURES LIMITED
By: Fidelity Capital Associates, Inc., its
General Partner
By: /S/ JOHN J. REMONDI
---------------------------------
Name: John J. Remondi
Title: Vice President
Address: 82 Devonshire St.-R25C,
Boston, MA 02109
FIDELITY INVESTORS LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its
General Partner
By: /S/ JOHN J. REMONDI
---------------------------------
Name: John J. Remondi
Title: President
Address: 82 Devonshire St.-R25C,
Boston, MA 02109
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its
General Partner
By: /S/ JOHN J. REMONDI
---------------------------------
Name: John J. Remondi
Title: President
Address: 82 Devonshire St.-R25C,
Boston, MA 02109
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
Fidelity Venture Limited 1,289,336
Fidelity Investors Limited Partnership 874,126
Fidelity Investors II Limited Partnership 415,210
</TABLE>
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
------------------------------
(Signature of Stockholder)
------------------------------
(Signature of Stockholder)
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW SHARES") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
D-1
<PAGE>
Dated ___, 200_
------------------------------
(Signature of Stockholder)
------------------------------
(Signature of Stockholder)
--------------------------------
(Signature of Stockholder)
D-2
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, by and among the undersigned and IMS, terminates in accordance with its
terms, at which time this proxy shall expire.
Dated May ___, 2000
------------------------------
(Signature of Stockholder)
------------------------------
(Signature of Stockholder)
--------------------------------
(Signature of Stockholder)
D-3
<PAGE>
Exhibit 99(E)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such Stockholder's
name on EXHIBIT A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and, except for
this Agreement and the Merger Agreement, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital
1
<PAGE>
stock of TriZetto and there are no Voting trusts or Voting agreements with
respect to such Shares, (b) such Stockholder does not beneficially own (as such
term is used in Rule 13d-3 of the Exchange Act) any shares of TriZetto Common
Stock other than such Shares and does not have any options, warrants or other
rights to acquire any additional shares of capital stock of TriZetto or any
security exercisable for or convertible into shares of capital stock of TriZetto
other than those options, warrants or other rights set forth opposite such
Stockholder's name on EXHIBIT B hereto (such Stockholder's "OPTIONS") and each
Stockholder represents and warrants that such Stockholder shall not exercise any
such Options prior to the termination of this Agreement except in accordance
with Section 6 of this Agreement, (c) such Stockholder has full power and
authority and has taken all actions necessary to enter into, execute and deliver
this Agreement and to perform fully such Stockholder's obligations hereunder and
this Agreement has been duly executed and delivered and constitutes the legal,
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity
Exception, (d) other than filings under the Exchange Act, no notices, reports or
other filings are required to be made by such Stockholder with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by such Stockholder from, any Governmental Entity, in connection with
the execution and delivery of this Agreement by such Stockholder, and (e) the
execution, delivery and performance of this Agreement by such Stockholder does
not, and the consummation by such Stockholder of the transactions contemplated
hereby will not, violate, conflict with or constitute a breach of, or a default
under, the certificate of incorporation or by-laws of such Stockholder or any or
their comparable governing instruments (if such Stockholder is not a natural
person) or result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of or the passage of time of both) under any contract to which such
Stockholder is a party or which is binding on it or its assets and will not
result in the creation of any lien on, or security interest in, any of the
assets or properties of such Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action (including, but not limited to,
consenting in accordance with Section 228 of the Delaware General
2
<PAGE>
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares.
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages.
3
<PAGE>
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
4
<PAGE>
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
5
<PAGE>
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date specified in a written agreement duly executed and delivered by IMS and
each of the Stockholders, and (iv) December 31, 2000. The parties acknowledge
that the Voting Agreement previously executed on March 28, 2000 is hereby
terminated upon the execution of this Agreement.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
<PAGE>
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ ROBERT E. WEISSMAN
-----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
WILLIAM E. FISHER
By: /S/ WILLIAN E. FISHER
-----------------------------
Name: William E. Fisher
Title:
Address: 1304 N. 139th St.,
Omaha, NE 68154
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
William E. Fisher 250,000
</TABLE>
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
William E. Fisher 10,000
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW Shares") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or the Merger Sub under the Merger Agreement. This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(F)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such Stockholder's
name on EXHIBIT A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and, except for
this Agreement and the Merger Agreement, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital stock of TriZetto and there are no Voting trusts or Voting
agreements with respect to
<PAGE>
such Shares, (b) such Stockholder does not beneficially own (as such term is
used in Rule 13d-3 of the Exchange Act) any shares of TriZetto Common Stock
other than such Shares and does not have any options, warrants or other rights
to acquire any additional shares of capital stock of TriZetto or any security
exercisable for or convertible into shares of capital stock of TriZetto other
than those options, warrants or other rights set forth opposite such
Stockholder's name on EXHIBIT B hereto (such Stockholder's "OPTIONS") and each
Stockholder represents and warrants that such Stockholder shall not exercise any
such Options prior to the termination of this Agreement except in accordance
with Section 6 of this Agreement, (c) such Stockholder has full power and
authority and has taken all actions necessary to enter into, execute and deliver
this Agreement and to perform fully such Stockholder's obligations hereunder and
this Agreement has been duly executed and delivered and constitutes the legal,
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity
Exception, (d) other than filings under the Exchange Act, no notices, reports or
other filings are required to be made by such Stockholder with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by such Stockholder from, any Governmental Entity, in connection with
the execution and delivery of this Agreement by such Stockholder, and (e) the
execution, delivery and performance of this Agreement by such Stockholder does
not, and the consummation by such Stockholder of the transactions contemplated
hereby will not, violate, conflict with or constitute a breach of, or a default
under, the certificate of incorporation or by-laws of such Stockholder or any or
their comparable governing instruments (if such Stockholder is not a natural
person) or result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of or the passage of time of both) under any contract to which such
Stockholder is a party or which is binding on it or its assets and will not
result in the creation of any lien on, or security interest in, any of the
assets or properties of such Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action (including, but not limited to,
consenting in accordance with Section 228 of the Delaware General
2
<PAGE>
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares, except as set forth on EXHIBIT A.
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages.
3
<PAGE>
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
4
<PAGE>
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
5
<PAGE>
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10(b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID provision"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date specified in a written agreement duly executed and delivered by IMS and
each of the Stockholders, and (iv) December 31, 2000. The parties acknowledge
that the Voting Agreement previously executed on March 28, 2000 is hereby
terminated upon the execution of this Agreement.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
<PAGE>
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ ROBERT E. WEISSMAN
-----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
KFS MANAGEMENT, INC.
By: /S/ WILLIAM E. FISHER
-----------------------
Name: William E. Fisher
Title: President
Address: 11225 Davenport Street, Suite 103,
Omaha, NE 68154
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
KFS Management, Inc. 162,595
</TABLE>
Notwithstanding this Voting Agreement, KFS Management, Inc., shall be permitted
to pledge all of its shares to secure debt or other instruments.
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
None
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
-------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW SHARES") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or the Merger Sub under the Merger Agreement. This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(G)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such Stockholder's
name on EXHIBIT A hereto (such Stockholder's "SHARES") free and clear of all
liens, claims, charges, security interests or other encumbrances and, except for
this Agreement and the Merger Agreement, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital stock of TriZetto and there are no Voting trusts or Voting
agreements with respect to
<PAGE>
such Shares, (b) such Stockholder does not beneficially own (as such term is
used in Rule 13d-3 of the Exchange Act) any shares of TriZetto Common Stock
other than such Shares and does not have any options, warrants or other rights
to acquire any additional shares of capital stock of TriZetto or any security
exercisable for or convertible into shares of capital stock of TriZetto other
than those options, warrants or other rights set forth opposite such
Stockholder's name on EXHIBIT B hereto (such Stockholder's "OPTIONS") and each
Stockholder represents and warrants that such Stockholder shall not exercise any
such Options prior to the termination of this Agreement except in accordance
with Section 6 of this Agreement, (c) such Stockholder has full power and
authority and has taken all actions necessary to enter into, execute and deliver
this Agreement and to perform fully such Stockholder's obligations hereunder and
this Agreement has been duly executed and delivered and constitutes the legal,
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity
Exception, (d) other than filings under the Exchange Act, no notices, reports or
other filings are required to be made by such Stockholder with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by such Stockholder from, any Governmental Entity, in connection with
the execution and delivery of this Agreement by such Stockholder, and (e) the
execution, delivery and performance of this Agreement by such Stockholder does
not, and the consummation by such Stockholder of the transactions contemplated
hereby will not, violate, conflict with or constitute a breach of, or a default
under, the certificate of incorporation or by-laws of such Stockholder or any or
their comparable governing instruments (if such Stockholder is not a natural
person) or result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of or the passage of time of both) under any contract to which such
Stockholder is a party or which is binding on it or its assets and will not
result in the creation of any lien on, or security interest in, any of the
assets or properties of such Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action (including, but not limited to,
consenting in accordance with Section 228 of the Delaware General
2
<PAGE>
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares.
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages.
3
<PAGE>
Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
4
<PAGE>
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
5
<PAGE>
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date specified in a written agreement duly executed and delivered by IMS and
each of the Stockholders, and (iv) December 31, 2000. The parties acknowledge
that the Voting Agreement previously executed on March 28, 2000 is hereby
terminated upon the execution of this Agreement.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
<PAGE>
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /s/ Robert E. Weissman
----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
By: /s/ Jeffrey H. Margolis, Trustee
--------------------------------
Name: Jeffrey H. Margolis
Title: Trustee, Margolis Family Trust
Address: 567 San Nicolas Drive, Suite 360,
Newport Beach, CA 92660
By: /s/ Jeffrey H. Margolis, Trustee
---------------------------------
Name: Jeffrey H. Margolis
Title: Trustee, Jeffrey H. Margolis
Irrevocable Trust
Address: 567 San Nicolas Drive, Suite 360,
Newport Beach, CA 92660
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
Jeffrey H. Margolis (Margolis Family Trust,
UDT 12/23/98) 1,710,000
Jeffrey H. Margolis (Jeffery H. Margolis
Irrevocable Trust) 150,000
</TABLE>
Notwithstanding the Voting Agreement, this excludes 50,000 shares of TriZetto
Common Stock held by the Margolis Family Trust, UDT 12/23/98 and 150,000 shares
of TriZetto Common Stock held by the Debbie Margolis Irrevocable Trust.
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
Jeffrey H. Margolis 340,000
</TABLE>
On June 10, 1999, Raymond D. Croghan granted Jeffrey H. Margolis the option to
purchase up to 550,000 shares of the common stock owned by Raymond D. Croghan.
Mr. Margolis may exercise his option to purchase these shares for $6.50 per
share up and until June 10, 2004.
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
--------------------------------
(Signature of Stockholder)
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW SHARES") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or the Merger Sub under the Merger Agreement. This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(H)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT"), dated as of May 16, 2000, among the
undersigned stockholders (the "STOCKHOLDERS") of The TriZetto Group, Inc., a
Delaware corporation ("TRIZETTO"), and IMS Health Incorporated, a Delaware
corporation ("IMS"). Except as otherwise provided herein, capitalized terms that
are used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Merger Agreement (as defined below).
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care
Technologies, Inc., a New York corporation and a wholly owned subsidiary of IMS
("ERISCO"), have entered into an Agreement and Plan of Reorganization (the
"MERGER AGREEMENT"), providing for, among other things, the merger of Merger Sub
with and into Erisco, with Erisco as the surviving corporation (the "MERGER"),
and the issuance of shares of TriZetto Common Stock to IMS in connection with
the Merger (the "ISSUANCE"), upon the terms and subject to the conditions set
forth in the Merger Agreement, and setting forth certain representations,
warranties, covenants and agreements of the parties thereto in connection with
the Merger and the Issuance;
WHEREAS, the Merger Agreement contemplates the execution and delivery
of this Agreement;
WHEREAS, in order to induce IMS to enter into the Merger Agreement, the
Stockholders wish to agree (i) to deliver to IMS an irrevocable proxy to Vote
(as defined in Section 2 hereof) the Shares (as defined in Section 1 hereof) and
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement so as to approve the Issuance and any related
matters, and (ii) not to transfer or otherwise dispose of any of the Shares or
any other shares of capital stock of TriZetto acquired hereafter and prior to
the termination of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to IMS that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Exchange Act) and of
record each of the shares of Common Stock, par value $0.001 per share, of
TriZetto (the "TRIZETTO COMMON STOCK"), set forth opposite such Stockholder's
name on EXHIBIT A hereto (such Stockholder's "SHARES") and except as set forth
on EXHIBIT A owns the TriZetto Common Stock free and clear of all liens, claims,
charges, security interests or other encumbrances and, except for this
Agreement, the Merger Agreement, and as set forth on EXHIBIT A, there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character to which such Stockholder is a party relating to the pledge,
disposition or Voting of any
<PAGE>
shares of capital stock of TriZetto and there are no Voting trusts or Voting
agreements with respect to such Shares, (b) such Stockholder does not
beneficially own (as such term is used in Rule 13d-3 of the Exchange Act) any
shares of TriZetto Common Stock other than such Shares and does not have any
options, warrants or other rights to acquire any additional shares of capital
stock of TriZetto or any security exercisable for or convertible into shares of
capital stock of TriZetto other than those options, warrants or other rights set
forth opposite such Stockholder's name on EXHIBIT B hereto (such Stockholder's
"OPTIONS") and each Stockholder represents and warrants that such Stockholder
shall not exercise any such Options prior to the termination of this Agreement
except in accordance with Section 6 of this Agreement, (c) such Stockholder has
full power and authority and has taken all actions necessary to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder and this Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, subject to
the Bankruptcy and Equity Exception, (d) other than filings under the Exchange
Act, no notices, reports or other filings are required to be made by such
Stockholder with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (e) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, violate, conflict
with or constitute a breach of, or a default under, the certificate of
incorporation or by-laws of such Stockholder or any or their comparable
governing instruments (if such Stockholder is not a natural person) or result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
modification or acceleration) (whether after the giving of or the passage of
time of both) under any contract to which such Stockholder is a party or which
is binding on it or its assets and will not result in the creation of any lien
on, or security interest in, any of the assets or properties of such
Stockholder.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders agrees to
deliver to IMS on the date hereof an irrevocable proxy substantially in the form
attached hereto as EXHIBIT C to Vote such Stockholder's Shares (a) in favor of
approval of the Issuance and any related matters at any meeting of the
stockholders of TriZetto at which such matters are considered and at every
adjournment or postponement thereof, (b) against any action or agreement that
would compete with, impede, interfere with or tend to discourage the Merger or
the Issuance or inhibit the timely consummation of the Merger and the Issuance,
and (c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. The proxy
delivered by each of the Stockholders pursuant to this Section 2 shall be
irrevocable during the term of this Agreement to the extent permitted under
Delaware law. For purposes of this Agreement, "VOTE" shall include voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action (including, but not limited to,
consenting in accordance with Section 228 of the Delaware General
2
<PAGE>
Corporation Law) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning.
3. NO VOTING TRUSTS. Each of the Stockholders agrees that they will
not, nor will they permit any entity or person under their control to, deposit
any of its Shares or New Shares (as defined in Section 6 hereof) in a Voting
trust or subject any of their Shares or New Shares to any arrangement with
respect to the Voting of such Shares or New Shares other than agreements entered
into with IMS.
4. NO PROXY SOLICITATIONS. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity or person
under such Stockholder's control, (a) to solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or in competition with the consummation
of the Merger or the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with, impede, interfere with
or tend to discourage the Merger or the Issuance or inhibit the timely
consummation of the Merger and the Issuance, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
TriZetto's stockholders in opposition to or in competition with the consummation
of the Merger and the Issuance or (c) to become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of TriZetto for the purpose of opposing or competing with the
consummation of the Merger and the Issuance.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during
the term of this Agreement, each of the Stockholders agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares, Options or New Shares, except as set forth on EXHIBIT A.
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of TriZetto Common
Stock after the execution of this Agreement, including, but not limited to,
acquisition by virtue of exercising any Option ("NEW SHARES"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of TriZetto Common Stock other than the Shares, unless such Stockholder
agrees to deliver to IMS immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as EXHIBIT D with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. SPECIFIC PERFORMANCE AND OPTION TO PURCHASE. Each party hereto
acknowledges that it will be impossible to measure in money the damage to the
other party if a party hereto fails to comply with any of the obligations
imposed by this Agreement, that every such obligation is material and that, in
the event of any such failure, the other party will not have an adequate remedy
at law or damages.
3
<PAGE>
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
8. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to IMS:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Chief Executive Officer
Telecopy: (203) 222-4247
With copies, which shall not constitute notice, to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: David Stevens
Jared Finkelstein
Telecopy: (203) 222-4268
and
4
<PAGE>
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
Keith A. Pagnani
Telecopy: (212) 558-3588
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
The TriZetto Group, Inc.
567 San Nicolas Drive
Newport Beach, California 92660
Attention: General Counsel
Telecopy: (949) 219-2197
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND
SUBJECT TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents governed by Delaware law referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
9 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
5
<PAGE>
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10 (b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "INVALID PROVISION"),
then such provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the termination of the Merger Agreement, (iii)
the date specified in a written agreement duly executed and delivered by IMS and
each of the Stockholders, and (iv) December 31, 2000. The parties acknowledge
that the Voting Agreement previously executed on March 28, 2000 is hereby
terminated upon the execution of this Agreement.
(f) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as
6
<PAGE>
may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) HEADINGS; RECITALS. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
IMS HEALTH INCORPORATED
By: /S/ ROBERT E. WEISSMAN
----------------------------
Name: Robert E. Weissman
Title: Chairman of the Board
STOCKHOLDERS:
DANIEL J. SPIREK
By: /S/ DANIEL J. SPIREK
--------------------
Name: Daniel J. Spirek
Title: Executive Vice President
Address: 12626 Summit Ridge Rd.,
Parker, CO 80138
8
<PAGE>
EXHIBIT A
STOCKHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ---- ----------------
<S> <C>
Daniel J. Spirek 295,000
</TABLE>
Notwithstanding the Voting Agreement, this excludes 30,000 shares of TriZetto
Common Stock held by Daniel J. Spirek. Notwithstanding the Voting Agreement,
Daniel J. Spirek has or shall be permitted to pledge up to 20,000 shares to
collateralize debt or other instruments.
A-1
<PAGE>
EXHIBIT B
STOCKHOLDERS OPTIONS
<TABLE>
<CAPTION>
NAME OPTIONS
- ---- -------
<S> <C>
Daniel J. Spirek 95,000
</TABLE>
B-1
<PAGE>
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("ERISCO"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "MERGER"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May ___,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May ___, 2000
--------------------------------
(Signature of Stockholder)
C-1
<PAGE>
EXHIBIT D
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote the _____________ shares
(the "NEW SHARES") of Common Stock, par value $0.001 per share (the "TRIZETTO
COMMON STOCK"), of The TriZetto Group, Inc., a Delaware corporation
("TRIZETTO"), purchased or otherwise acquired by the undersigned, or for which
the undersigned has voluntarily acquired the right to vote or share in the
voting of such shares, since the execution of the Voting Agreement, dated as of
May ___, 2000 (the "VOTING AGREEMENT"), by and among certain stockholders of
TriZetto, including the undersigned, and IMS, at any meetings of stockholders of
TriZetto after the date hereof and at any adjournment or postponement thereof
(each, a "TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common
Stock to IMS (the "ISSUANCE") as contemplated by the Agreement and Plan of
Reorganization, dated as of May ___, 2000 (the "MERGER AGREEMENT"), by and among
TriZetto, Elbejay Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies,
Inc., a New York corporation and a wholly owned subsidiary of IMS ("ERISCO"),
which provides for, among other things, the merger of Merger Sub with and into
Erisco (the "MERGER"), and any related matters, and AGAINST (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such New Shares for (a) any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Merger or the Issuance or inhibit the timely consummation of the Merger and
the Issuance, and (b) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of TriZetto or the Merger Sub under the Merger Agreement. This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms, at which time this proxy
shall expire.
Dated ____________________, 200_
--------------------------------
(Signature of Stockholder)
D-1
<PAGE>
Exhibit 99(I)
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
/S/ RAYMOND D. CROGHAN
-------------------------
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
Delphi Ventures IV, L.P.
By: Delphi Management Partners IV, LLC
General Partner
By: /S/ DONALD LOTHROP
------------------
Managing Member of the General Partner
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
FIDELITY VENTURES LIMITED
By: Fidelity Capital Associates, Inc., its
General Partner
By: /S/ JOHN J. REMONDI
--------------------
Vice President
FIDELITY INVESTORS LIMITED PARTNERSHIP
<PAGE>
By: Fidelity Investors Management, LLC, its
General Partner
/S/ JOHN J. REMONDI
-------------------------
President
(Signature of Stockholder)
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: Fidelity Investors Management, LLC, its
General Partner
/S/ JOHN J. REMONDI
--------------------------
President
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
/S/ WILLIAM E. FISHER
-------------------------
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
/S/ JEFFREY H. MARGOLIS, TRUSTEE
--------------------------------
Trustee, Margolis Family Trust
(Signature of Stockholder)
/S/ JEFFREY H. MARGOLIS, TRUSTEE
--------------------------------
Trustee, Jeffrey H. Margolis Irrevocable Trust
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
/S/ DANIEL J. SPIREK
------------------------
(Signature of Stockholder)
<PAGE>
PROXY
The undersigned, for consideration received, hereby appoints Victoria
Fash or another representative of IMS Health Incorporated, a Delaware
corporation ("IMS"), designated by her and each of them my proxies, with full
power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share (the "TRIZETTO COMMON STOCK"), of The TriZetto
Group, Inc., a Delaware corporation ("TRIZETTO"), owned by the undersigned (the
"SHARES") as of the date hereof at any meetings of stockholders of TriZetto
after the date hereof and at any adjournment or postponement thereof (each, a
"TRIZETTO MEETING") FOR approval of the issuance of TriZetto Common Stock to IMS
(the "ISSUANCE") as contemplated by the Agreement and Plan of Reorganization,
dated as of May 16, 2000 (the "MERGER AGREEMENT"), by and among TriZetto,
Elbejay Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of TriZetto ("MERGER SUB"), IMS and ERISCO Managed Care Technologies, Inc., a
New York corporation and a wholly owned subsidiary of IMS ("Erisco"), which
provides for, among other things, the merger of Merger Sub with and into Erisco
(the "Merger"), and any related matters, and AGAINST (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance, and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement, and (ii) to
withhold consents with respect to such Shares for (a) any action or agreement
that would compete with, impede, interfere with or tend to discourage the Merger
or the Issuance or inhibit the timely consummation of the Merger and the
Issuance and (b) any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of TriZetto or Merger Sub under the Merger Agreement. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of May 16,
2000, among certain stockholders of TriZetto, including the undersigned, and
IMS, terminates in accordance with its terms, at which time this proxy shall
expire.
Dated May 16, 2000
KFS Management, Inc.
/S/ WILLIAM E. FISHER
--------------------------
President
(Signature of Stockholder)
<PAGE>
EXHIBIT 99.J
PARTNERS OF FIDELITY VENTURES LIMITED
AND DIRECTORS AND EXECUTIVE OFFICERS THEREOF
Fidelity Ventures Limited ("FVL"), a private equity concern, is a
limited partnership of which Fidelity Capital Associates, Inc. ("FCA") is the
general partner and a wholly owned subsidiary of FMR Corp., a diversified
financial services company. FMR Corp. is the limited partner of FVL and holds a
majority interest in FVL. The following table sets forth the name and present
principal occupation or employment, and material occupations, positions, offices
or employment of the directors and executive officers of FCA and FMR Corp. Each
person is a citizen of the United States (except Mr. Kelly, who is a citizen of
Canada), with a principal business address of 82 Devonshire Street, Boston, MA
02109. To the knowledge of IMS Health Incorporated, none of the individuals set
forth below has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) during the last five years. None of the
individuals set forth below has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction during the last five years as a
result of which any such person was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Name Present Principal Occupation or Employment
---- ------------------------------------------
FIDELITY CAPITAL ASSOCIATES, INC.
---------------------------------
William R. Elfers Vice President of FCA. Managing Director of
Fidelity Ventures and Chairman and Chief
Executive Officer of Community Newspaper
Company.
George K. Hertz Vice President of FCA. Managing Director of
Fidelity Ventures.
Timothy T. Hilton President and Director of FCA. President of
Fidelity Ventures
Robert E. Ketterson Jr Vice President of FCA. Vice President of
Fidelity Ventures.
Peter Mann Vice President of FCA.
Stephen G. Manning Chief Financial Officer and Vice President of
FCA.
Paul L. Mucci Vice President of FCA.
<PAGE>
John J. Remondi Vice President and Director of FCA. President
of Fidelity Investors Management LLC. Managing
Director of Fidelity Ventures.
Laurel M. Watts Vice President of FCA. Chief Administrative
Officer of Fidelity Capital.
Name Present Principal Occupation or Employment
---- ------------------------------------------
FMR CORP.
---------
Stephen P. Akin President of Fidelity Capital.
J. Gary Burkhead Vice Chairman and Director of FMR Corp.
William L. Byrnes Director of FMR Corp.
James C. Curvey President and Chief Operating Officer of FMR
Corp. and Director of FMR Corp.
Steven E. Elterich President of Fidelity E-Commerce .
Ilene B. Jacobs Executive Vice President, Human Resources of
FMR Corp.
Abigail P. Johnson Director of FMR Corp. Senior Vice president
and Associate Director of Fidelity Management
& Research Company.
Edward C. Johnson 3d Chairman of the Board and Chief Executive
Officer of FMR Corp. and Director of FMR Corp.
Stephen P. Jonas Executive Vice President and Chief Financial
Officer of FMR Corp.
Timothy T. Hilton President of Fidelity Ventures.
Kevin J. Kelly President of Fidelity Investments
Institutional Services Company, Inc.
Mark A. Peterson President of Fidelity Corporate Systems and
Services.
Robert C. Pozen President of Fidelity Management & Research
Company.
<PAGE>
Robert L. Reynolds President of Fidelity Investments
Institutional Retirement Group.
Roger T. Servison President of Fidelity Brokerage Services
Japan, LLC .
David C. Weinstein Executive Vice President and Chief of
Administration and Government Affairs of FMR
Corp.
George A. Vanderheiden Director of FMR Corp. Senior Vice President of
Fidelity Management & Research Company.
<PAGE>
EXHIBIT 99.K
GENERAL PARTNER OF FIDELITY INVESTORS LIMITED PARTNERSHIP
AND FIDELITY INVESTORS II LIMITED PARTNERSHIP
AND DIRECTORS AND EXECUTIVE OFFICERS THEREOF
Fidelity Investors Limited Partnership ("FILP") and Fidelity
Investors II Limited Partnership ("FILP II") are private equity funds. FILP and
FILP II are limited partnerships of which Fidelity Investors Management, LLC
("FIM") is the general partner. The following table sets forth the name and
present principal occupation or employment of the directors and executive
officers of FIM. Each person is a citizen of the United States with a principal
business address of 82 Devonshire Street, Boston, MA 02109. To the knowledge of
IMS Health Incorporated, none of the individuals set forth below has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) during the last five years. None of the individuals set forth
below has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction during the last five years as a result of which
any such person was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
Name Present Principal Occupation or Employment
---- ------------------------------------------
FIDELITY INVESTORS MANAGEMENT, LLC
- ----------------------------------
James C. Curvey Director of FIM. President and Chief Operating
Officer of FMR Corp. and Director of FMR Corp.
Donald S. Heaton Vice President and Treasurer of FIM. Senior
Vice President, Finance of Fidelity Ventures.
Timothy T. Hilton Director of FIM. President of Fidelity
Ventures.
Edward C. Johnson 3d Chairman of the Board of FIM. Chairman of the
Board and Chief Executive Officer of FMR Corp.
and Director of FMR Corp.
John J. Remondi President of FIM. Managing Director of
Fidelity Ventures. Vice President of FCA.
David C. Weinstein Vice President of FIM. Executive Vice
President and Chief of Administration and
Government Affairs of FMR Corp.
