-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Cbelus0quoa/A5wVL2MxPrYBatxPGb+Nv+spDcZSDJxwadAr0M+LTwcE3uIJbcPC qyD/MRIX0twJPp/TbLkkhg== 0000950172-05-000123.txt : 20050112 0000950172-05-000123.hdr.sgml : 20050112 20050112161941 ACCESSION NUMBER: 0000950172-05-000123 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050112 DATE AS OF CHANGE: 20050112 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEOFORMA INC CENTRAL INDEX KEY: 0001096219 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 770424252 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58839 FILM NUMBER: 05526050 BUSINESS ADDRESS: STREET 1: 3061 ZANKER ROAD CITY: SAN JOSE STATE: CA ZIP: 95134 BUSINESS PHONE: 4086545700 MAIL ADDRESS: STREET 1: 3061 ZANKER ROAD CITY: SAN JOSE STATE: CA ZIP: 95134 FORMER COMPANY: FORMER CONFORMED NAME: NEOFORMA INC/CA/ DATE OF NAME CHANGE: 20010918 FORMER COMPANY: FORMER CONFORMED NAME: NEOFORMA COM INC DATE OF NAME CHANGE: 19991004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VHA INC CENTRAL INDEX KEY: 0001120376 IRS NUMBER: 382182248 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 220 EAST LAS COLINAS BLVD CITY: IRVING STATE: TX ZIP: 75039-5500 BUSINESS PHONE: 9728300000 MAIL ADDRESS: STREET 1: 220 EAST LAS COLINAS BLVD CITY: IRVING STATE: TX ZIP: 75039-5500 SC 13D/A 1 nyc952556.txt AMENDMENT NO. 5 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 5) NEOFORMA, INC. ----------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.001 per share ----------------------------------------------------------------------------- (Title of Class of Securities) 640475 10 7 ----------------------------------------------------------------------------- (CUSIP Number) Marcea B. Lloyd Senior Vice President and General Counsel VHA Inc. 220 East Las Colinas Boulevard Irving, Texas 75039-5500 (972) 830-0000 ----------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) copy to: Nancy A. Lieberman, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036-6522 (212)735-3000 January 12, 2005 ----------------------------------------------------------------------------- (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 ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-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 ss.240.13d-7 for other parties to whom copies are to be sent. * 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 ("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). CUSIP No. 640475 10 7 - ------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). VHA INC. - (IRS Employer Identification Number 38-2182248) - ------------------ ------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A (a) / / MEMBER OF A GROUP (SEE INSTRUCTIONS) (b) / / - ------------------ ------------------------------------------------------------ 3. SEC USE ONLY - ------------------ ------------------------------------------------------------ 4. SOURCE OF FUNDS (SEE INSTRUCTIONS) N/A - ------------------ ------------------------------------------------------------ 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - ------------------ ------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------ ------------------------------------------------------------ 7. SOLE VOTING POWER 8,611,217 NUMBER OF ------------------------------------------------------------ SHARES 8. SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ------------------------------------------------------------ REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 8,611,217 ------------------------------------------------------------ 10. SHARED DISPOSITIVE POWER - ------------------ ------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,611,217 - ------------------ ------------------------------------------------------------ 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) / / - ------------------ ------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 43.12% (BASED ON AN AGGREGATE OF 19,970,161 SHARES OF COMMON STOCK ESTIMATED TO BE OUTSTANDING) - ------------------ ------------------------------------------------------------ 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO - Corporation - ------------------------------------------------------------------------------- This Amendment No. 5 (this "Amendment") to the Statement on Schedule 13D filed by VHA Inc., a Delaware corporation ("VHA"), on August 7, 2000, as amended by Amendment No. 1 on October 19, 2000, Amendment No. 2 on February 2, 2001, Amendment No. 3 on September 11, 2003 and Amendment No. 4 on September 19, 2003 (the "Schedule 13D"), relates to the common stock, par value $0.001 per share (the "Common Stock"), of Neoforma, Inc., a Delaware corporation ("Neoforma"). All capitalized terms used but not defined herein have the respective meanings ascribed to them in the Schedule 13D. ITEM 4. PURPOSE OF TRANSACTION Item 4 of the Schedule 13D is hereby amended and supplemented to add the following: VHA has retained Lazard Freres & Co. as its financial advisor and Skadden, Arps, Slate, Meagher & Flom LLP as its legal advisor to assist VHA in considering alternatives involving Neoforma. There can be no assurance that any transaction involving Neoforma will occur, or, if so, on what terms. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) - (b) The information required by these sections of Item 5 is set forth in numbers 7-11 and number 13 of the cover page to this Amendment and is incorporated herein by reference. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 of the Schedule 13D is hereby amended and supplemented to add the following: Pursuant to a Waiver dated January 7, 2005 (the "Waiver") among Neoforma, VHA and University HealthSystem Consortium ("UHC"), Neoforma granted VHA and UHC a limited waiver of certain provisions of Delaware law applicable to "business combinations," and a limited waiver of standstill agreements VHA and UHC had each entered into with Neoforma, in each case in order to permit VHA and UHC to work together in the evaluation of their strategic alternatives with respect to Neoforma. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS References to and descriptions of the Waiver as set forth herein are qualified in their entirety by reference to the copy of the Waiver attached hereto in Exhibit 1 and incorporated herein in its entirety where such references and descriptions appear. Exhibit 1 Waiver dated January 7, 2005, among Neoforma, Inc., VHA, Inc. and University HealthSystem Consortium Exhibit 2 Press Release of VHA Inc. dated January 11, 2005 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. VHA INC. By: /s/ Marcea B. Lloyd ------------------------------ Name: Marcea B. Lloyd Title: Senior Vice President, General Counsel Dated: January 12, 2005 EX-99 2 nyc493285.txt EXHIBIT 1 - WAIVER Exhibit 1 WAIVER WAIVER dated January 7, 2005, among NEOFORMA, INC. (formerly known as NEOFORMA.COM, INC.), a Delaware corporation, (the "Company"), VHA INC., a Delaware corporation ("VHA") and UNIVERSITY HEALTHSYSTEM CONSORTIUM, an Illinois corporation ("UHC"). W I T N E S S E T H: WHEREAS, the Company and VHA are parties to the Amended and Restated VHA Common Stock and Warrant Agreement dated as of May 24, 2000 (as amended pursuant to the Amendment to Amended and Restated Common Stock and Warrant Agreement dated as of October 18, 2000, the "VHA Agreement"); WHEREAS, the Company and UHC are parties to the Amended and Restated UHC Common Stock and Warrant Agreement dated as of May 24, 2000 (as amended pursuant to the Amendment to Amended and Restated Common Stock and Warrant Agreement dated as of January 25, 2001, the "UHC Agreement"); and WHEREAS, the Company is engaged in the process of evaluating strategic alternatives for the Company and its business. NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained and intending to be legally bound hereby, the parties agree as follows: Section 1. Waiver. The Company hereby waives the provisions of Section 6.2(i) of the VHA Agreement and Section 6.2(i) of the UHC Agreement for the period commencing on the date hereof and ending on April 7, 2005 for the sole purpose of permitting VHA, UHC and their respective affiliates to enter into, and perform their respective obligations under, any agreement, arrangement or understanding relating to the joint participation of VHA, UHC and any of their respective affiliates in the evaluation of strategic alternatives for the Company (including making proposals for the acquisition of Rights in Parent Stock (as defined in the VHA Agreement and the UHC Agreement) and assets of the Company) (such activities, collectively, the "Joint Participation"), in each case solely to the extent the execution of, or the performance under, any such agreement, arrangement, understanding or joint participation would result in VHA being deemed the beneficial owner of any Rights in Parent Stock owned by UHC for purposes of Section 6.2(i) of the VHA Agreement and/or UHC being deemed the beneficial owner of any Rights in Parent Stock owned by VHA for purposes of Section 6.2(i) of the UHC Agreement. Section 2. Anti-Takeover Protections. The Company represents and warrants to VHA and UHC that the Board of Directors of the Company has adopted a binding resolution that neither VHA nor UHC will be deemed an "interested stockholder" under Section 203 General Corporation Law of the State of Delaware ("DGCL") and that the restrictions contained in Section 203 of DGCL applicable to "business combinations" (as defined in Section 203 of DGCL) shall not apply to VHA and UHC, solely to the extent that in connection with, or as a result of, the Joint Participation, VHA is deemed to be the owner of any shares of capital stock of the Company currently owned by UHC or UHC is deemed to be the owner of any shares of capital stock of the Company currently owned by VHA. As used in this Section 2, the term "owner" (including the term "owned") has the meaning assigned thereto in Section 203 of DGCL. Section 3. Certain Agreements With Employees. (a) The Company represents and warrants to VHA and UHC that each of Robert J. Zollars, Daniel Eckert, Andrew Guggenhime and Herbert Cross and the other employees of the Company that have entered into an amendment to their respective employment agreements with the Company to the effect described in the Company's current report on Form 8-K filed with the Securities and Exchange Commission on December 17, 2004 (the "Company Report"), have agreed with the Company that the Joint Participation shall not constitute a "change of control" under such employment agreements, as so amended (each, an "Employee Waiver"). (b) The Company agrees and covenants that without the consent of VHA and UHC, the Company shall not enter into any employment agreement containing, or amend any of its existing employment agreements to include, "change of control" provisions similar or comparable to those described in the Company Report, unless concurrently with entering into or amending any such employment agreement, each employee of the Company that is a party to such employment agreement or amendment thereto and the Company agree that that the Joint Participation shall not constitute a "change of control" for purposes of any such employment agreement. (c) The Company agrees and covenants that without the consent of VHA and UHC, the Company shall not agree or consent to any amendment to, or revocation or withdrawal of, any Employee Waiver or any agreement of any employee of the Company contemplated by Section 3(b) regarding the non-applicability of "change of control" provisions. Section 4. Status of Agreements. Except as expressly set forth herein, no provision or term of the VHA Agreement or the UHC Agreement is hereby waived, modified, amended or supplemented, and all such provisions and terms, as in effect on the date hereof, are hereby ratified and shall remain in full force and effect. Section 5. Amendments; Waivers. This Waiver may not be modified or amended except by a written instrument signed by authorized representatives of each party and referring specifically to this Waiver. Any term, provision or condition of this Waiver may be waived in writing at any time by the party which is entitled to the benefit thereof. Section 6. Counterparts. This Waiver may be executed in counterparts, which together shall be considered one and the same agreement and each of which shall be deemed an original. Section 7. Governing Law. This Waiver shall be governed and construed under the internal laws of the State of Delaware as applied to agreements among Delaware residents entered into and performed entirely within Delaware, without reference to principles of conflicts of laws or choice of law. [Remainder of this page intentionally left blank] IN WITNESS WHEREOF, each of the parties has executed this Waiver on the date first written above. NEOFORMA, INC. (formerly known as NEOFORMA.COM, INC.) By: /s/ Andrew Guggenhime ------------------------------ Name: Andrew Guggenhime Title: Chief Financial Officer VHA INC. By: /s/ Marcea B. Lloyd ----------------------------- Name: Marcea B. Lloyd Title: Senior Vice President and General Counsel UNIVERSITY HEALTHSYSTEM CONSORTIUM By: /s/ Robert J. Blake ------------------------------ Name: Robert J. Blake Title: President and Chief Executive Officer EX-99 3 nyc959833.txt EXHIBIT 2 - PRESS RELEASE Exhibit 2 NEWS RELEASE Contacts: Lynn Gentry Barbara Anason 972/830-0798 630/954-1726 lgentry@vha.com anason@uhc.edu VHA and UHC Sign Agreements to Work Together in Evaluating Ownership of Neoforma Irving, Texas, and Oak Brook, Ill. (Jan. 11, 2005)--VHA Inc. and the University HealthSystem Consortium have signed a waiver agreement with Neoforma, Inc. (Nasdaq: NEOF) that allows the two health care alliances to work together to evaluate strategic options regarding their majority ownership of Neoforma. VHA and UHC established a relationship with Neoforma in 2000 to help build and operate Marketplace@Novation, the health care industry's leading online supply exchange, through their supply company, Novation. VHA and UHC entered into the waiver agreement in connection with Neoforma's public announcement earlier today that it has decided to evaluate alternatives to enhance the value of the company to its stockholders. Some of the alternatives could include sale or merger of the company. Under the agreement, Neoforma has granted VHA and UHC a limited waiver of certain provisions of Delaware law applicable to "business combinations," and a limited waiver of standstill agreements VHA and UHC had each entered into with Neoforma. VHA also announced that it has retained, and UHC announced that it intends to retain, Lazard Freres & Co. as its financial advisor. VHA has hired Skadden, Arps, Slate, Meagher & Flom LLP, and UHC has retained McDermott Will & Emery LLP as legal advisors. These firms will assist VHA and UHC in considering alternatives involving Neoforma. VHA currently owns approximately 43 percent and UHC currently owns approximately 11 percent of Neoforma's common stock. VHA and UHC said that there can be no assurance that any transaction involving Neoforma will occur, or, if so, on what terms. ### VHA Inc. is a national cooperative of leading not-for-profit health care organizations that work together to improve the health of the communities they serve. VHA leverages the collective strength of the membership to help them improve clinical and economic performance. As a cooperative, VHA distributes income annually to members based on their participation. University HealthSystem Consortium, formed in 1984, is an alliance of academic health centers situated mainly in the United States. As a membership organization, UHC provides its 90 full members and 123 associate members with a variety of helpful resources aimed at improving performance levels in clinical, operational, and financial areas. The mission of the University HealthSystem Consortium is to advance knowledge, foster collaboration, and promote change to help members succeed in their respective markets. -----END PRIVACY-ENHANCED MESSAGE-----