STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "Agreement") is made and
entered into as of this 17th day of October, 1996, by and among Xxxxx Healthcare
Corporation, a Nevada corporation ("Acquiror"), and the stockholder named on the
signature page hereto ("Stockholder"). On the date hereof the Stockholder
Beneficially Owns (as defined in Section 11(a) hereof) the number of shares of
common stock, par value $.01 per share (the "Company Shares"), of OrNda
Healthcorp, a Delaware corporation ("Company"), set forth next to the
Stockholder's name on the signature page hereto.
WHEREAS, Acquiror and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the 16th day of October, 1996
(the "Merger Agreement"), providing for, among other things, the merger (the
"Merger") of a wholly owned subsidiary of Acquiror with and into the Company,
with the Company as the surviving corporation; and
WHEREAS, as an essential condition and inducement to Acquiror's
execution of the Merger Agreement, Acquiror has requested that the Stockholder
agree, and the Stockholder has agreed, to vote (or consent with regard to) all
Company Shares as to which the Stockholder has voting power in favor of the
Merger as provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. VOTING RIGHTS.
VOTING AGREEMENT. The Stockholder agrees that, at any time the
Merger Agreement remains in effect, it will vote all Stockholder Shares (as
defined below) on matters as to which the Stockholder is entitled to vote
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at any annual, special or other meeting of the Stockholders of the Company, and
at any adjournment or adjournments thereof, or by written consent without a
meeting with respect to all Stockholder Shares as follows: (i) in favor of
approval and adoption of the Merger Agreement, the terms thereof and each of the
other transactions contemplated by the Merger Agreement; and (ii) against any
action or agreement (other than the Merger Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger, including without limitation: (a) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company and its subsidiaries; or (b) a sale
or transfer of a material amount of assets of the Company and its subsidiaries
or a reorganization, recapitalization or liquidation of the Company and its
subsidiaries.
"Stockholder Shares" shall mean the shares of Company capital stock
(including without limitation the Company Shares) Beneficially Owned by such
Stockholder as of the date hereof, or Beneficially Owned by such Stockholder at
any time hereafter (including, without limitation, by way of exercise of options
or by way of dividend, distribution, exchange, merger, consolidation,
recapitalization, reorganization, stock split, grant of proxy or otherwise) by
such Stockholder (as adjusted as set forth herein). The Stockholder hereby
agrees to promptly notify Acquiror of the number of any new Stockholder Shares
acquired by the Stockholder, if any, after the date hereof. In the event of any
change in the Company Shares by reason of a stock dividend, stock split, split
up, recapitalization, combination, exchange of shares or similar transaction,
the type and number of shares or securities that constitute Stockholder Shares
hereunder shall be adjusted appropriately.
2. TERMINATION.
a. This Agreement shall terminate upon the earlier to occur of
(i) the termination of the Merger Agreement in accordance with its terms
pursuant to Section 9.1 thereof, or (ii) the Effective Time (as defined in the
Merger Agreement).
b. Upon termination, this Agreement shall have no further force
or effect, except for Section 7
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which shall continue to apply to any case, action or proceeding relating to the
enforcement of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. The
Stockholder hereby represents and warrants to Acquiror as follows:
a. DUE AUTHORIZATION. The Stockholder has the legal capacity
and all necessary power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. As of the date hereof, the
Stockholder Beneficially Owns the number of the Stockholder Shares listed on the
signature page hereof and specified as so owned with no restrictions on the
voting rights (except as specified in this Agreement) or rights of disposition
pertaining thereto, which constitute all Company Shares Beneficially Owned by
such Stockholder. Assuming this Agreement has been duly and validly authorized,
executed and delivered by Acquiror, this Agreement constitutes a valid and
binding agreement of the Stockholder, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies.
b. NO CONFLICTS. Neither the execution and delivery of this
Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will conflict with or constitute a violation of or default
under any contract, commitment, agreement, arrangement or restriction of any
kind to which the Stockholder is a party or by which the Stockholder is bound.
4. REPRESENTATIONS AND WARRANTIES OF ACQUIROR. Acquiror hereby
represents and warrants to the Stockholder as follows:
a. DUE AUTHORIZATION. Acquiror has the requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Acquiror and this
Agreement has been duly executed by a duly authorized officer of Acquiror.
Assuming this Agreement has been duly and
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validly executed and delivered by the Stockholder, this Agreement constitutes a
valid and binding agreement of Acquiror, enforceable against it in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable remedies.
b. NO CONFLICTS. Neither the execution and delivery of this
Agreement nor the consummation by Acquiror of the transactions contemplated
hereby will conflict with or constitute a violation of or default under any
contract, commitment, agreement, arrangement or restriction of any kind to which
Acquiror is a party or by which Acquiror is bound.
5. NO TRANSFER. Except as provided in this Agreement or the
Merger Agreement, the Stockholder hereby agrees, without the prior written
consent of Acquiror, except pursuant to the terms hereof, not to (i) sell,
transfer, assign, pledge or otherwise dispose of or hypothecate any of his
Stockholder Shares; (ii) grant any proxies, deposit any Stockholder Shares
into a voting trust or enter into a voting agreement with respect to any
Stockholder Shares; or (iii) take any action that would make any representation
or warranty of the Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling the Stockholder from performing his
obligations under this Agreement. Any permitted transferee of Stockholder
Shares must become a party to this Agreement and any purported transfer of
Stockholder Shares to a person or entity that has not become a party hereto
shall be null and void. In furtherance of this Agreement, concurrently
herewith the Stockholder shall and hereby does authorize the Company's counsel
to notify the Company's transfer agent that there is a stop transfer order
with respect to all of the Stockholder Shares (and that this Agreement places
limits on the voting and transfer of such shares).
6. ENTIRE AGREEMENT. Other than the Merger Agreement
(including the exhibits, schedules and other documents and instruments referred
to therein), this
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Agreement (including the documents and instruments referred to
herein) (a) constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof; (b) shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto, except that Acquiror may assign, in its sole discretion, all or
any of its rights, interests and obligations hereunder to any direct or indirect
wholly owned subsidiary of Acquiror; (c) shall not be amended, altered or
modified in any manner whatsoever, except by a written instrument executed by
the parties hereto; and (d) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Delaware
(without giving effect to the provisions thereof relating to conflicts of law).
7. REMEDIES. The parties acknowledge that it would be
impossible to fix money damages for violations of this Agreement and that such
violations will cause irreparable injury for which adequate remedy at law is not
available and, therefore, this Agreement must be enforced by specific
performance or injunctive relief. The parties hereto agree that any party may,
in its sole discretion, apply to any court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection or defense to the imposition of such relief. Nothing herein shall be
construed to prohibit any party from bringing any action for damages in addition
to an action for specific performance or an injunction for a breach of this
Agreement.
8. LEGENDS ON CERTIFICATES. Until such time as this Agreement
shall terminate pursuant to Section 2 hereof, all certificates representing
Stockholder Shares shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
OF A STOCKHOLDER VOTING AGREEMENT, DATED AS OF OCTOBER 17, 1996, BY AND
BETWEEN XXXXX HEALTHCARE CORPORATION AND THE STOCKHOLDER. ANY TRANSFEREE
OF THESE
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SHARES TAKES SUBJECT TO THE TERMS OF SUCH AGREEMENT, COPIES OF
WHICH ARE ON FILE AT THE OFFICES OF XXXXX HEALTHCARE CORPORATION.
9. PARTIES IN INTEREST. Subject to the provisions of Sections
5 and 6(b) hereof, this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors,
permitted assigns, heirs, executors, administrators and other legal
representatives, and nothing in this Agreement, express or implied, is intended
to confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
11. DEFINITIONS. The following terms shall have the following
respective meanings:
a. "Beneficial Owner" has the meaning set forth in Rule 13d-3 of
the Rules and Regulations to the Exchange Act, and "Beneficially Owned" and
"Beneficially Owns" shall have correlative meanings; PROVIDED, HOWEVER, that
for purposes of this Agreement a person shall be deemed to be the Beneficial
Owner of Company Shares that may be acquired pursuant to the exercise of an
option or other right regardless of when such option is exercisable.
b. A "person" means a corporation, association, partnership,
joint venture, organization, business, individual, trust, estate or any other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
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(a) If to Acquiror to:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxx X. XxXxxxxx
(b) If to the Stockholder, to the address set forth on the
signature page, hereto.
13. INTERPRETATION. 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.
14. SEVERABILITY. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
15. FURTHER ASSURANCES. The Stockholder further agrees to
execute all additional writings, consents and authorizations as may be
reasonably requested by Acquiror to evidence the agreements herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
XXXXX HEALTHCARE CORPORATION
By /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and C.E.O.
XXXXXX, XXXXXXXXXX & XXXX FUND, L.P.
By: JLL ASSOCIATES, L.P., as general partner
By /s/ XXXX X. XXXX
-----------------------------------
Name: Xxxx X. Xxxx
Title: General Partner
No. of Shares Beneficially Owned:
7,096,774
-----------------------------------
Address for Notices:
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxx Xxxx 00000
