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EXHIBIT 99.4
COMPANY VOTING AGREEMENT
VOTING AGREEMENT dated as of April 13, 1998 (this "Agreement") by and
among Paragon Health Network, Inc., a Delaware corporation (the "Parent"), and
the other parties signatory hereto (each a "Stockholder")
WHEREAS, each Stockholder is the beneficial owner of shares (the
"Company Common Stock") of common stock, par value $.01 per share, of Mariner
Health Group, Inc., a Delaware corporation (the "Company"), Paragon Acquisition
Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Parent (the
"Subsidiary") and the Parent enter into an Agreement and Plan of Merger dated as
of the date hereof (as the same may be amended or supplemented, the "Merger
Agreement") with respect to the merger of Subsidiary with and into the Company
(the "Merger") with the Company surviving the Merger; and
WHEREAS, as an inducement to the Parent and the Subsidiary to enter
into, execute and deliver the Merger Agreement, Parent and Subsidiary requested
that each Stockholder execute this Agreement pursuant to which each Stockholder
will agree to vote the shares of Common Stock beneficially owned by such
Stockholders as provided herein.
NOW, THEREFORE, in consideration of the execution and delivery by the
Parent and the Subsidiary of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. VOTING AGREEMENTS. Subject to the provisions of Section 6 hereof, in
connection with the efforts of the Company to cause the Merger Agreement and the
Merger to receive the required approval of the stockholders of the Company and
to be consummated, each Stockholder severally agrees with, and covenants to, the
Parent as follows:
(a) At any meeting of stockholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment
thereof or in any other circumstance upon which a vote, consent or
other approval of stockholders of the Company is sought with respect to
the Merger and the Merger Agreement, such Stockholder shall (i) appear
or otherwise take appropriate action to ensure that such Stockholder's
Shares (as defined below) are present at such meeting for the purpose
of obtaining a quorum and (ii) vote (or cause to be voted) or execute a
written consent with respect to such Stockholder's Shares in favor of
the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval thereof and each of the other transactions
contemplated by or in any way related to the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstance upon which the vote,
consent or other approval of stockholders of the Company is sought,
such Stockholder shall vote (or cause to be voted) or execute a written
consent in connection with such Stockholder's Shares against (i) any
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merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding
up of or by the Company or (ii) any action or agreement, including any
proposed amendment of the Company's Certificate of Incorporation or
By-laws or other proposal or transaction involving the Company or any
of its subsidiaries which action, agreement, amendment or other
proposal or transaction is intended, or could reasonably be expected to
impede, interfere with, delay, or attempt to frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other
transactions contemplated thereby (each of the foregoing in clauses (i)
or (ii) above, a "Competing Transaction").
2. REPRESENTATIONS AND WARRANTIES. Each Stockholder severally
represents and warrants to the Parent as follows:
(a) Such Stockholder is the record and beneficial owner of, or
is a trustee of a trust that is the record holder of, the number of
shares of the Company Common Stock set forth opposite such
Stockholder's name in Schedule A hereto (as to any Stockholder, such
"Stockholder's Shares"). Except for such Stockholder's Shares, such
Stockholder is not the record or beneficial owner of any shares of
Company Common Stock.
(b) This Agreement has been duly executed and delivered by
such Stockholder and such Stockholder intends for this to be a valid
and binding agreement and will not take any action to contest the valid
and binding nature of this Agreement. If such Stockholder is a natural
person, such Stockholder (i) has the full power and capacity necessary
to enter into and perform his or her obligations under this Agreement,
(ii) has read all provisions of this Agreement, has reviewed such
provisions with counsel to the extent such Stockholder deemed
appropriate, understands each of such provisions and voluntarily agrees
to be bound thereby and (iii) if such Stockholder is married and such
Stockholder's Shares constitute community property, this Agreement has
been duly executed and delivered by and constitutes a valid and binding
agreement of such Stockholder's spouse and such Stockholder's spouse
intends for this to be a valid and binding agreement and will not take
any action to contest the valid and binding nature of this Agreement.
If such Stockholder is an entity, such Stockholder is duly organized,
validly existing and in good standing under the laws of the state of
its organization with full power and authority necessary to enter into
this Agreement and to perform its obligations hereunder. If such
Stockholder is a partnership, such partnership is duly formed, validly
existing and in good standing under the laws of the state of its
organization with full partnership power and authority necessary to
enter into this Agreement and to perform its obligations hereunder.
(c) Except as described on Schedule 2(c) hereof, neither the
execution and delivery of this Agreement nor the consummation by such
Stockholder of the transactions contemplated hereby will result in a
violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction
of any kind to which such Stockholder is a party or bound or to which
such Stockholder's Shares
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are subject. Except as described on Schedule 2(c) hereof, neither the
execution and delivery of this Agreement nor the consummation by such
Stockholder of the transactions contemplated hereby will violate, or
require any consent, approval or notice under any provision of any
judgment, order or decree applicable to such Stockholder or such
Stockholder's Shares, except for any necessary consent, approval or
notice under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, or Section 13 of the Securities Exchange Act of 1934, as
amended, and (ii) required by local, state and federal regulatory
agencies, commissions, boards or public authorities with jurisdiction
over health care facilities and providers.
(d) Except as described on Schedule 2(d) hereof, none of which
as of the date hereof impede the ability of the Stockholders to fulfill
its obligations under this Agreement, such Stockholder's Shares and the
certificates representing such Shares are now and at all times during
the term hereof will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder.
(e) Such Stockholder understands and acknowledges that the
Parent is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
3. COVENANTS. Each Stockholder severally agrees with, and covenants to,
the Parent as follows:
(a) Such Stockholder shall not (i) transfer (which terms shall
include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge, alienation, assignment or other disposition,
directly or indirectly, by operation of law, in connection with any
merger or otherwise (collectively, a "Transfer")), or consent to any
Transfer of, any or all of such Stockholder's Shares or any interest
therein, except pursuant to the Merger, (ii) enter into any contract,
option or other agreement or understanding with respect to any Transfer
of any or all of such Stockholder's Shares or any interest therein,
(iii) grant any proxy, power of attorney or other authorization in or
with respect to such Stockholder's Shares, except for this Agreement
and any proxy granted in connection with any meeting of stockholders of
the Company called to vote upon the Merger and the Merger Agreement or
at any adjournment thereof which contains voting instructions
consistent with such Stockholder's obligations under this Agreement, or
(iv) deposit such Stockholder's Shares into a voting trust or enter
into a voting agreement or any other arrangement with respect to such
Shares; provided, that any such Stockholder may, subject to the
provisions of Section 4 hereof, transfer any of such Stockholder's
Shares to any other Stockholder who is on the date hereof a party to
this Agreement, or to any family member of a Stockholder, charitable
institution or affiliate (as defined in the Securities Act (as defined
in the Merger Agreement)) of such Stockholder which prior to
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such Transfer becomes a party to this Agreement bound by all
obligations of a "Stockholder" hereunder.
(b) If a majority of the holders of Company Common Stock
approve the Merger and the Merger Agreement, upon consummation of the
Merger such Stockholder's Shares shall, subject to the terms and
conditions of the Merger Agreement, be converted into the right to
receive the consideration provided in the Merger Agreement. Such
Stockholder hereby waives any rights of appraisal, or rights to dissent
from the Merger, that such Stockholder may have.
(c) Subject to the provisions of Section 6 hereof, such
Stockholder shall not, in its, his or her capacity as a stockholder of
the Company, and shall instruct any investment banker, attorney or
other adviser or representative of such Stockholder not to, directly or
indirectly, (i) solicit, initiate, facilitate, or encourage any
Competing Transactions or (ii) participate in any discussions or
negotiations regarding, or furnish to any person any information with
respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected
to lead to, a Competing Transaction. Each Stockholder shall immediately
cease and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to
any of the foregoing. Without limiting the foregoing, it is understood
that solely for purposes of enabling Parent to avail itself of the
remedies available pursuant to Section 9(h) hereof, any violation of
the restrictions set forth in the preceding sentence by an investment
banker, attorney or other adviser or representative of such
Stockholder, whether or not such person is purporting to act on behalf
of such Stockholder or otherwise, shall be deemed to be a violation of
this Section 3(c) by such Stockholder.
4. CERTAIN EVENTS. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Stockholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation, such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by any Stockholder, the number of Stockholder's Shares listed in
Schedule A beside the name of such Stockholder shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of the Company Common Stock or other voting securities of the Company
issued to or acquired by such Stockholder.
5. VOIDABILITY. If prior to the execution hereof, the Board of
Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action the Merger Agreement and the transactions
contemplated thereby, so that by the execution and delivery hereof the Parent
would become, or could reasonably be expected to become, an "interested
stockholder" with whom the Company would be prevented for any period pursuant to
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Section 203 of the DGCL from engaging in any "business combination" (as such
terms are defined in Section 203 of the DGCL), then this Agreement shall be void
and unenforceable until such time as such authorization and approval shall have
been duly and validly obtained.
6. STOCKHOLDER CAPACITY. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer and the provisions of this Agreement shall not restrict or limit any
such person in the discharge of his or her fiduciary duties as an officer or
director of the Company. Each Stockholder signs solely in his or her capacity as
the record and beneficial owner or the trustee of a trust whose beneficiaries
are the beneficial owners of such Stockholder's Shares.
7. REGULATORY APPROVAL. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions.
8. FURTHER ASSURANCES. Each Stockholder shall, upon request of the
Parent, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Parent to be necessary or desirable
to carry out the provisions hereof.
9. TERMINATION. It is a condition precedent to the effectiveness of
this Agreement that the Merger Agreement shall have been executed and delivered
and be in full force and effect. This Agreement shall automatically terminate
and be of no further force and effect upon the first to occur of (i) the
Effective Time of the Merger or (ii) the date upon which the Merger Agreement is
terminated in accordance with its terms. Upon such termination, except for any
rights any party may have in respect of any breach by any other party of its or
his obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder
10. MISCELLANEOUS.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to them in the
Merger Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be
deemed given upon the same terms as set forth in Section 8.05 of the
Merger Agreement, except that notices to the undersigned Stockholders
shall be sent to the address set forth in Schedule A hereto opposite
each such Stockholder's name.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective as to any Stockholder when one or
more counterparts have been signed by each of Parent and such
Stockholder and delivered to Company, Subsidiary, Parent and such
Stockholder.
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(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and undertakings, both written and oral, among the
parties with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in
part, through any merger, by operation of law or otherwise, by any of
the parties without the prior written consent of the other parties,
except by laws of descent or as expressly contemplated by Section 3(a)
hereof. Any assignment in violation of the foregoing shall be void.
(h) Each Stockholder agrees that irreparable damage would
occur and that Parent would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that Parent shall be entitled to an injunction or
injunctions to prevent breaches or threatened breaches by any
Stockholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located
in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which Parent may be entitled at law or
in equity. In addition, each of the parties hereto irrevocably and
unconditionally (i) consents to be subject to the personal jurisdiction
of any Federal court located in the State of Delaware or any Delaware
state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat the personal jurisdiction of
such courts by motion or other request for leave from any such court,
(iii) agrees that such party will not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court
other than a Federal court sitting in the State of Delaware or a
Delaware state court and (iv) that service of process may also be made
on such party by prepaid certified mail with a proof of mailing receipt
validated by the United States Postal Service constituting evidence of,
valid service, and that service made pursuant to this clause (iv) shall
have the same legal force and effect as if served upon such party
personally within the State of Delaware.
(i) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any
way be affected, impaired, or invalidated, and shall be enforced to the
fullest extent permitted by law and the provision found to be invalid,
void or unenforceable shall be immediately revised by the parties
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hereto so as to be valid, binding and enforceable to the greatest
extent then permitted by applicable law.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
(k) A facsimile of this Agreement containing signatures of all
of the parties hereto shall constitute an original document for all
purposes.
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IN WITNESS WHEREOF, the Parent and each Stockholder have caused this
Company Voting Agreement to be duly executed and delivered on day and year first
above written.
PARAGON HEALTH NETWORK, INC.
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
Title: Senior Vice President
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Individually
/s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx Partners, L.P. as
General Partner
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx as Trustee of
the Xxxxxx X. Xxxxxxx, Xx.
Irrevocable Trust Dated 11/1/91
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx as Trustee of
the Charlotte Xxxx Xxxxxxx
Irrevocable Trust Dated 11/1/91
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SCHEDULE A
STOCKHOLDER ADDRESS OF STOCKHOLDER NUMBER OF SHARES OF COMPANY
COMMON STOCK
Xxxxxx X. Xxxxxxx, Xx. 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000 2,181,183
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx Partners, L.P. 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000 862,760
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxxxx Xxxx, X.X. 2,154,696
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxx, TR 0000 Xxxxxxxxx Xxxx, Xxxxx 000 427,066
Xxxxxxxxx X. Xxxxxxx XXX Xxxxxxx, Xxxxxxx 00000
Trust dated 11/1/91
Xxxxxxx X. Xxxxxxx, TR 0000 Xxxxxxxxx Xxxx, Xxxxx 000 427,066
Xxxxxx X. Xxxxxxx, Xx. Xxxxxxx, Xxxxxxx 00000
IRR Trust dated 11/1/91
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SCHEDULE 2(C)
Certain of the stock beneficially owned by Xxxxxx X. Xxxxxxx, Xx. has been
pledged to NationsBank, N.A. ("NationsBank") to secure financing extended by
NationsBank to Xxxxxx X. Xxxxxxx. As a part of that pledge, a contingent proxy
has been granted to NationsBank.
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SCHEDULE 2(D)
Certain of the shares of stock beneficially owned by Xxxxxx X. Xxxxxxx, Xx. are
subject to a pledge in favor of NationsBank, N.A.