Exhibit 5
VOTING AND CONTRIBUTION AGREEMENT
VOTING AND CONTRIBUTION AGREEMENT (this "Agreement"), dated as of April
16, 2001 by and among Anam LLC, a Delaware limited liability company (together
with its assignees or designees, the "Company"), and the other signatories
hereto (together with any Additional Stockholders (as defined below), the
"Stockholders").
W I T N E S S E T H
WHEREAS, concurrently with the execution and delivery of this
Agreement, NextHealth, Inc., a Delaware corporation ("NextHealth") is entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), with the Company and NHI Acquisition Corp., a Delaware corporation
which is a wholly-owned subsidiary of the Company ("NHI"), pursuant to which NHI
shall merge with and into NextHealth (the "Merger"), upon the terms and
conditions set forth therein;
WHEREAS, each Stockholder severally desires that the Company, NHI and
NextHealth enter into the Merger Agreement;
WHEREAS, the Stockholders own beneficially and of record and have the
sole power to vote and dispose of the number of shares of Common Stock, par
value $.01 per share, of NextHealth ("NextHealth Common Stock") set forth under
the caption "Shares Owned," opposite their respective names on Schedule I hereto
(such shares of NextHealth Common Stock owned by the Stockholders or acquired or
otherwise received after the date hereof being the "Shares");
WHEREAS, opposite each Stockholders name on Schedule I hereto under the
caption "Options Owned" is the number of shares of NextHealth Common Stock
acquirable pursuant to stock options owned by the Stockholders (the "Options");
WHEREAS, each Stockholder severally desires to contribute its shares of
NextHealth Common Stock to the Company as part of a transaction that is intended
to qualify as exchanges under section 721 of the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company is entering into a Memorandum of Understanding, dated as
of the date hereof (the "Memorandum of Understanding"), with TRIOD LLC, a
Delaware limited liability company ("TRIOD"), certain of the Stockholders, and
the other parties thereto, which sets forth the principal terms of the
transactions and agreements described therein, including those relating to the
sources of funds to finance the Merger and the management of the Company and
TRIOD;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement and the Memorandum of Understanding, the Company has requested that
the Stockholders enter into this Agreement; and
WHEREAS, from time to time prior to the consummation of the Merger,
additional stockholders of NextHealth (the "Additional Stockholders") may be
joined to this Agreement either in substitution of or in addition to, the
Stockholders, in each case subject to the terms and conditions herein described,
by executing and delivering to the Company a copy of the Joinder Agreement in
the form attached hereto as Exhibit A.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. Certain capitalized terms used and not
otherwise defined herein have the meanings ascribed to them in the Merger
Agreement. Unless the context otherwise requires, such terms shall include the
singular and plural and the conjunctive and disjunctive forms of the terms
defined.
ARTICLE II
VOTING AGREEMENTS
SECTION 2.01. Stockholder Meetings. Each Stockholder agrees that at any
meeting of stockholders of NextHealth called to vote upon the Merger or the
Merger Agreement, or at any adjournment thereof, or in any other circumstances
upon which a vote, consent or other approval of the stockholders of NextHealth
with respect to the Merger, the Merger Agreement or any of the other
transactions contemplated thereby or hereby is sought, such Stockholder shall
cause its Shares to be present for quorum purposes and to vote (or caused to be
voted) its Shares in favor of the terms thereof and each of the other
transactions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof. Each Stockholder hereby
grants to the Company a proxy to vote all of the Shares then beneficially owned
by such Stockholder as indicated in this Section 2.01. Each Stockholder agrees
that this proxy shall be irrevocable and coupled with an interest, agrees to
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by such Stockholder with respect to any of the Shares.
SECTION 2.02. Competing Transaction. Subject to the provisions of
Article VI, each Stockholder agrees that at any meeting of stockholders of
NextHealth, or at any
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adjournment thereof, or in any other circumstances upon which their vote,
consent or other approval is sought, such Stockholder shall vote (or cause to be
voted) its Shares against (i) any Takeover Proposal and (ii) any amendment of
NextHealth's Certificate of Incorporation or By-laws or other proposal or
transaction involving NextHealth or any of its Subsidiaries which amendment or
other proposal or transaction would in any manner impede, interfere with,
materially delay, frustrate, prevent or nullify or result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
NextHealth or any Stockholder under or with respect to, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or by this Agreement.
ARTICLE III
CONTRIBUTION
SECTION 3.01. Contribution of Shares by Stockholders. Each Stockholder
agrees that immediately prior to the Effective Time of the Merger, each such
Stockholder shall contribute the number of Shares, if any, listed opposite such
Stockholder's name under the caption "Shares Owned" on Schedule I hereto (and,
to the extent that any of such Stockholder's Options are exercised prior to the
Effective Time, each such Stockholder also shall contribute such Shares received
upon such exercise) to the Company. The Company shall issue to each contributing
Stockholder a proportionate membership interest in the Company ("Company
Interest"). Upon the issuance of Company Interests pursuant to this Section
3.01, each contributing Stockholder agrees to become a member of the Company and
become bound by the terms and conditions of the Limited Liability Agreement of
the Company (the "Company Agreement").
SECTION 3.02. Termination of Options. Each Stockholder agrees that
immediately prior to the Effective Time, the Options, if any, listed opposite
such Stockholder's name under the caption "Options Owned" on Schedule I hereto
shall be cancelled pursuant to Section 2.4 of the Merger Agreement, except to
the extent that such Options are exercised prior to the Effective Time, in which
case such Stockholder also shall contribute to the Company in accordance with
Section 3.01 hereof, the Shares received upon such exercise. In consideration
for cancellation, the Company shall, in accordance with Section 2.4 of the
Merger Agreement, pay, or cause to be paid, to such Stockholder an amount in
respect of such Options equal to the product of (x) the excess of the Per Share
Merger Consideration over the exercise price thereof and (y) the number of
shares of NextHealth Common Stock subject thereto (such payment to be net of
taxes required by law to be withheld with respect thereto).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Stockholders. Each
of the Stockholders severally and not jointly represents and warrants to the
Company as follows:
(a) Power, Organization and Standing. Such Stockholder has all
requisite power and authority to enter into and perform its obligations under
this Agreement and, if such Stockholder is not a natural person, such
Stockholder is duly organized, validly existing and in good standing under the
laws of its state of organization. Such Stockholder is either an individual (who
is not a non-resident alien described in Section 1361(b)(1)(C) of the Code),
estate, exempt organization described in Section 401(a) or 501(c)(3) of the
Code, or a trust described in Section 1361(c)(2)(A) of the Code.
(b) Authority and Capacity. The execution and delivery of this
Agreement, and the performance by such Stockholder of its obligations hereunder,
have been duly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly executed and delivered by such
Stockholder and, assuming the due execution and delivery hereof by the Company,
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
(c) Ownership. Such Stockholder is the record and beneficial owner of,
and has good and valid title to, the number of Shares and Options listed
opposite such Stockholder's name under the captions "Shares Owned" and "Options
Owned," respectively, on Schedule I hereto, free and clear of all Liens or other
adverse interests (including any restrictions on the right to vote, sell or
otherwise dispose of such Shares and Options). Except for this Agreement and as
otherwise indicated on Schedule I hereto, there are no outstanding warrants,
subscriptions, rights (including preemptive rights), options, calls, commitments
or other agreements or Liens or other adverse interests to encumber, purchase or
acquire any of the Shares or Options of such Stockholder or securities
convertible into or exchangeable for the Shares of such Stockholder. Except as
indicated in Schedule I hereto, neither such Stockholder nor any of its
"affiliates" or "associates" (as such terms are defined in Rule 12b-2
promulgated under the Exchange Act) holds either of record or beneficially any
securities, capital stock, warrants, subscriptions, rights (including preemptive
rights), options, calls, commitments or other instruments of NextHealth or any
of NextHealth's Subsidiaries other than such Stockholder's Shares. Except as
indicated in Schedule I hereto, such Stockholder has the exclusive power to vote
such Shares.
(d) No Conflict. The execution of this Agreement and the consummation
of the transactions contemplated hereby will not require notice to, or the
consent of, any party to any contract to which such Stockholder is a party or by
which it is bound, or the consent, approval, order or authorization of, or the
registration, declaration or filing with, any
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governmental authority, except for (i) approvals of, or filings or registrations
with the FTC and DOJ pursuant to HSR, (ii) the filing of the Certificate of
Merger pursuant to the DGCL, (iii) compliance with any applicable requirement of
the Exchange Act, (iv) such consents, if any, as set forth in Schedule 4.3 to
the Merger Agreement or (v) where failure to make such filing or registration,
give such notice or receive such permit, consent or approval would not
reasonably be expected to prevent or materially delay consummation of the
transaction's contemplated hereby. Assuming that the notices, consents and
approvals referred to in the preceding sentence have been given, made or
obtained and remain effective, the execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby will not (i) violate any material applicable laws, (ii)
result in a breach or violation of any provision of, constitute a default under,
or result in the termination of, or an acceleration of indebtedness or creation
of any Lien under, any contract to which such Stockholder is a party or by which
it or its Shares are bound or (iii) conflict with or violate any provision of
the organizational or similar documents of such Stockholder.
(e) Brokers, Finders, etc. No agent, broker, investment banker,
financial advisor, or other Person (other than fees and expenses of which are
the responsibility of the Company or NHI) is entitled to any brokerage
commission, finder's fee or like payment in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Stockholders.
(f) Investment Representations. Each Stockholder:
(i) is an "accredited investor," as such term is defined in
Regulation D under the Securities Act of 1933, as amended (the
"Securities Act");
(ii) has had access to such financial and other information,
and has been afforded the opportunity to ask questions of
representatives of the Company, and to receive answers to those
questions, as it has deemed necessary in connection with its
acquisition of a Company Interest pursuant to this Agreement;
(iii) acknowledges that the Company Interest that will be
acquired pursuant to this Agreement is being acquired in a transaction
not involving any public offering within the meaning of the Securities
Act, and the Company Interest has not been, and may never be,
registered under the Securities Act;
(iv) agrees not to offer, sell, transfer or otherwise dispose
of the Company Interest acquired pursuant to this Agreement in the
absence of registration under the Securities Act unless it delivers to
the Company an opinion of counsel reasonably satisfactory to the
Company, in form and substance satisfactory to the Company, to the
effect that the proposed sale, transfer or other disposition may be
effected without registration under the Securities Act and under
applicable state securities and blue sky laws;
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(v) acknowledges that unless and until the Company Interest
acquired pursuant to this Agreement shall have been registered under
the Securities Act, the Company Agreement governing such Company
Interest will bear a legend to the following effect:
THE MEMBERSHIP INTERESTS (THE "INTERESTS") IN THIS LIMITED LIABILITY
COMPANY (THE "COMPANY") HAVE NOT BEEN REGISTERED WITH OR APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES REGULATORY AUTHORITY OF ANY STATE. HOLDERS OF INTERESTS
WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENTS FOR AN
INDEFINITE PERIOD OF TIME. THE INTERESTS HAVE NOT BEEN REGISTERED (I)
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"FEDERAL ACT"), OR (II) ANY STATE SECURITIES LAW (A "STATE ACT"), AND
NEITHER THE INTERESTS NOR ANY PART THEREOF MAY BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE FEDERAL ACT AND ANY
APPLICABLE STATE ACT AND WITH THE TERMS AND CONDITIONS OF ARTICLE VII
OF THIS AGREEMENT, WHICH RESTRICTS THE TRANSFER OF INTERESTS, OR IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE FEDERAL ACT
AND APPLICABLE STATE ACT OR AN OPINION OF COUNSEL FOR THE COMPANY THAT
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THE COMPANY'S RECORDS WILL
CONTAIN APPROPRIATE "STOP TRANSFER" INSTRUCTIONS RELATED TO THE ABOVE
RESTRICTIONS ON TRANSFER.
(vi) has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of an acquisition of the Company Interest pursuant to this Agreement
and is able to bear the economic risk of a loss of an investment in
such Company Interest and is not acquiring such Company Interest with a
view to the distribution thereof or any present intention of offering
or selling any thereof in a transaction that would violate the
Securities Act or the securities laws of any state or any other
applicable jurisdiction; and
(vii) has been advised by its own counsel with respect to
this Agreement and the tax implications of the contributions and
transactions contemplated hereby.
(g) Stockholders Agreement. As contemplated by the Memorandum of
Understanding, such Stockholder acknowledges and agrees that on the Closing
Date, the Company shall dissolve and such Stockholder will receive a
proportionate share of the stock of the Surviving Corporation then held by the
Company, and such Stockholder shall enter into a stockholders agreement by and
among the Surviving Corporation and the stockholders of the Surviving
Corporation named therein (the "Stockholders Agreement"). Pursuant to the
Stockholders Agreement, such Stockholder shall agree,
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among other things, to execute a consent to the Surviving Corporation's election
to be treated as a "small business corporation" for Federal income tax purposes
under Section 1362 of the Code (and any similar state tax provision) and agree
to not take any action that would result in the revocation or termination of
such election. Such Stockholder further acknowledges and agrees that the stock
of the Surviving Corporation to be issued to such Stockholder as contemplated by
the Memorandum of Understanding shall be subject to the Stockholders Agreement.
SECTION 4.02. Representations and Warranties of the Company. The
Company hereby represents and warrants to each of the Stockholders as follows:
(a) Organization, Standing and Power. The Company is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to enter into and perform its
obligations under this Agreement.
(b) Authority and Capacity. The execution and delivery of this
Agreement, and the performance by the Company of its obligations hereunder, have
been duly authorized by all necessary action on the part of the Company. This
Agreement has been duly executed and delivered on behalf of the Company and,
assuming the due execution and delivery hereof by the Stockholders, this
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(c) No Conflict. The execution of this Agreement and the consummation
of the transactions contemplated hereby will not require notice to, or the
consent of, any party to any contract to which the Company or any of its
affiliates is a party or by which any of them is bound, or the consent,
approval, order or authorization of, or the registration, declaration or filing
with, any governmental authority, except for (i) approvals of, or filings or
registrations with the FTC and DOJ pursuant to HSR, (ii) the filing of the
Certificate of Merger pursuant to the DGCL, (iii) compliance with any applicable
requirement of the Exchange Act, (iv) such consents, if any, as set forth in
Schedule 4.3 to the Merger Agreement or (v) where failure to make such filing or
registration, give such notice or receive such permit, consent or approval would
not reasonably be expected to prevent or materially delay consummation of the
transaction's contemplated hereby. Assuming that the notices, consents and
approvals referred to in the preceding sentence have been given, made or
obtained and remain effective, the execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated
hereby will not (i) violate any material applicable laws, (ii) result in a
breach or violation of any provision of, or constitute a default under, any
contract to which the Company is a party or by which it is bound or (iii)
conflict with any provision of the Company Agreement or the Certificate of
Formation of the Company.
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ARTICLE V
COVENANTS
SECTION 5.01. No Solicitation. Each Stockholder agrees that it shall
not, nor shall it authorize or permit any Affiliate, agent, partner or employee
of, or any investment banker, attorney or other advisor or representative of,
such Stockholder to, directly or indirectly, (i) solicit or initiate, or
encourage any inquiries regarding or the submission of, any Takeover Proposal
(including without limitation any proposal or offer to NextHealth's
stockholders) or (ii) participate in any discussions or negotiations regarding,
or furnish to any person any nonpublic information with respect to, or take any
other action to facilitate the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Takeover Proposal. Notwithstanding the
foregoing, a Stockholder may (A) furnish nonpublic information with respect to
NextHealth to the person who made such Takeover Proposal and (B) participate in
negotiations with such person regarding such Takeover Proposal, if such
Stockholder is instructed in writing to do so by the Board of Directors of
NextHealth; provided that it is understood that this Section 5.01 shall not be
deemed to have been violated if in response to an unsolicited inquiry, such
Stockholder states solely that he or she is subject to the limits of this
Agreement and provides only public information in response to such unsolicited
inquiry.
SECTION 5.02. No Transfer; No Inconsistent Arrangements. Each
Stockholder agrees that it shall not (including by way of any gift, sale, pledge
or other disposition, including without limitation in connection with
foreclosures by lenders secured by pledges of Shares or Options) (i) transfer,
sell or pledge, encumber, assign or otherwise dispose of, or consent to the
transfer or pledge of, any or all of the Shares or Options owned by it or of any
interest therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any such transfer of any such Shares or Options,
or any interest therein or result in the imposition of any Lien, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to any such
Shares or Options, except pursuant to this Agreement, (iv) deposit any such
Shares or Options into a voting trust or enter into a voting agreement or
arrangement with respect to any such Shares or Options or (v) take any action
that would in any way restrict, limit or interfere or in any way be inconsistent
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
SECTION 5.03. Further Assurances. From time to time, whether before,
at, or after the Closing, each party hereto agrees to execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates
and other documents, and to take such other action, as may be necessary or
advisable in order to carry out the terms and provisions of this Agreement and
the transactions contemplated hereby (including voting the Shares in favor of
any such transaction) or to cause the elimination of any circumstance that would
cause a condition under Article V hereof not to be satisfied on the Closing
Date.
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SECTION 5.04. Notice of Certain Events. The Company and each
Stockholder agrees to notify each other party hereto promptly of (a) any event
or condition that, with or without notice or lapse of time, would or could
reasonably be expected to cause any of the representations and warranties made
by such party herein to be no longer complete and accurate as of any date on or
before the Closing Date, or (b) any failure, with or without notice or lapse of
time, on the part of such party to comply with any of the covenants or
agreements on its part contained herein at any time on or before the Closing
Date.
ARTICLE VI
CONDITIONS PRECEDENT TO
OBLIGATIONS UNDER ARTICLE III
SECTION 6.01. Stockholders' Conditions. The obligation of each of the
Stockholders pursuant to Article III shall be subject to the satisfaction or
waiver on the Closing Date of each of the following conditions precedent:
(a) No Injunctions or Restraints. No temporary restraining order or
preliminary or permanent injunction of any court or administrative agency of
competent jurisdiction prohibiting the transactions contemplated by this
Agreement shall be in effect.
(b) No Violation of Law. The performance of the obligations of each of
the Stockholders pursuant to Article III shall not constitute a violation of any
laws.
(c) Representations and Warranties. The representations and warranties
of the Company set forth in this Agreement shall be true and correct in all
material respects on and as of the Closing Date an as of the date hereof, as
though made on and as of the Closing Date.
(d) Covenants and Agreements. The Company shall have performed, in all
material respects, all obligations and complied, in all material respects, with
all covenants required by this Agreement to be performed or complied with it at
or prior to the Closing Date.
(e) Merger Agreement. Each of the conditions to closing contained in
the Merger Agreement shall have been satisfied or waived.
(f) Stockholders Agreement. The Surviving Corporation shall have
executed and delivered the Stockholders Agreement to the Stockholders.
SECTION 6.02. The Company's Conditions. The obligation of the Company
pursuant to Article III shall be subject to the satisfaction or waiver on the
Closing Date of each of the following conditions precedent:
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(a) No Injunctions or Restraints. No temporary restraining order or
preliminary or permanent injunction of any court or administrative agency of
competent jurisdiction prohibiting the transactions contemplated by this
Agreement shall be in effect.
(b) No Violation of Law. The performance of the obligations of the
Company pursuant to Article III shall not constitute a violation of any laws.
(c) Representations and Warranties. The representations and warranties
of the Stockholders set forth in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, as though made on and as of the
Closing Date.
(d) Covenants and Agreements. Each of the Stockholders shall have
performed, in all material respects, all obligations and complied, in all
material respects, with all covenants required by this Agreement to be performed
or complied with it at or prior to the Closing Date.
(e) Merger Agreement. Each of the conditions to closing contained in
the Merger Agreement shall have been satisfied or waived.
(f) Certificates for Shares. Each Stockholder shall have delivered to
the Company certificates evidencing its Shares with all necessary endorsements,
free and clear of all Liens.
(g) Stockholders Agreement. Each Stockholder shall have executed and
delivered the Stockholders Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
SECTION 7.01. Termination. This Agreement shall terminate without any
further action on the part of the Company or any of the Stockholders (i) if the
Closing has occurred, (ii) if the Merger has been consummated in accordance with
the terms of the Merger Agreement, or (iii) if the Merger Agreement has been
terminated in accordance with Article 7 thereunder.
SECTION 7.02. Effect of Termination. In the event this Agreement shall
have been terminated in accordance with Section 7.01, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of any party hereto.
SECTION 7.03. Amendment. This Agreement and Schedule I hereto may not
be amended except by an instrument or instruments in writing signed and
delivered on behalf of each of the parties hereto. At any time prior to the
Closing Date, any party hereto which is entitled to the benefits hereof may (a)
extend the time for the performance of any of the obligations or other acts of
any other party, (b) waive any inaccuracy in the representations and warranties
of any other party contained herein, in
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Schedule I hereto, or in any document delivered pursuant hereto, and (c) subject
to applicable law, waive compliance with any of the agreements of any other
party hereto or any conditions contained herein. Any agreement on the part of
any of the parties hereto to any such extension or waiver (i) shall be valid
only if set forth in an instrument in writing signed and delivered on behalf of
each such party, and (ii) shall not be construed as a waiver or extension of any
subsequent breach or time for performance hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to the Company, to:
c/o Xxxx X. Xxxxxxx & Company, LLC
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
with copies to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
and:
Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
Suite 2600
Tower at Erieview
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxx Xxxxxxxx, Esq.
(b) if to the Stockholders, to their respective addresses set forth
on Schedule I hereto.
SECTION 8.02. Interpretation. When a reference is made in this
Agreement to an Article or Section, such reference shall be to an Article or
Section of this Agreement,
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unless otherwise indicated. 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. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The Merger Agreement and the consummation of the
transactions contemplated by the Merger Agreement are transactions contemplated
by this Agreement.
SECTION 8.03. Severability. If any provision of this Agreement or the
application of any such provision shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof. In lieu of any such invalid, illegal or unenforceable provision, the
parties hereto intend that there shall be added as part of this Agreement a
valid, legal and enforceable provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible or practicable under the
circumstances.
SECTION 8.04. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 8.05. Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the Merger Agreement and the Company Agreement constitute the entire
agreements, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of these
agreements and none of this Agreement, the Merger Agreement or the Company
Agreement is intended to confer upon any person other than the parties any
rights or remedies thereunder.
SECTION 8.06. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO ANY APPLICABLE CONFLICTS OF LAW.
SECTION 8.07. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. This Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
SECTION 8.08. Enforcement. The parties agree that irreparable damage
would occur 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 the parties shall be entitled to an injunction or
injunctions to prevent breaches 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 Illinois or in any Illinois state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
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addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Illinois or
any Illinois state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a Federal or state court sitting in the
State of Illinois.
SECTION 8.09. Stockholder Capacity. Notwithstanding anything herein to
the contrary, the Stockholders enter into this Agreement solely in their
respective capacities as stockholders of NextHealth. No person executing this
Agreement who is a director or officer of NextHealth shall be deemed to make any
agreement herein in his or her capacity as director or officer of NextHealth.
Nothing herein shall limit or affect (a) actions taken by any Stockholder in his
or her capacity as director or officer of NextHealth or (b) the rights and
remedies the Company may have other than pursuant to this Agreement in respect
of such conduct undertaken in the capacity of director or officer of NextHealth.
[signature pages follow]
-13-
IN WITNESS WHEREOF, each of the parties hereto has signed this Voting
and Contribution Agreement as of the date first above written.
ANAM LLC, a Delaware limited liability company
By:/s/ Xxxxxxx X. X'Xxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx, Xx.
Title: Member
STOCKHOLDERS
/s/ Xxxxxx X. Xxxx
-------------------------------------------
XXXXXX X. XXXX
/s/ Xxxxxxx X. X'Xxxxxxx, Xx.
-------------------------------------------
XXXXXXX X. X'XXXXXXX, XX.
-14-
SCHEDULE I
TO
VOTING AND CONTRIBUTION AGREEMENT
Name and Address
of Stockholder Shares Owned Options Owned
-------------- ------------ -------------
Xxxxxxx X. X'Xxxxxxx, Xx. 2,185,917 135,500
c/o ODE, L.L.C.
000 Xxxxx Xxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxx -0- 30,500
c/o Xxxx X. Xxxxxxx
& Company, LLC
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
-15-
JOINDER AGREEMENT
The undersigned hereby agrees, effective as to the date hereof, (i) to
become a party to that certain Voting and Contribution Agreement (the
"Agreement") dated as of April 16, 2001 by and among Anam LLC, a Delaware
limited liability company (the "Company"), and the other parties named therein,
(ii) that for all purposes of the Agreement, the undersigned shall be included
within the term "Additional Stockholder" (as defined in the Agreement), and
(iii) that Schedule I to the Agreement shall be amended hereby to include the
information contained on Schedule I hereto.
The undersigned's name and address, "Shares Owned" and "Options Owned"
(as such terms are defined in the Agreement) are listed on Schedule I attached
hereto.
ADDITIONAL STOCKHOLDER
BTM Irrevocable Trust UA dated 09/08/89
/s/ Xxxx X. X'Xxxxxxx
-------------------------------
By: Xxxx X. X'Xxxxxxx, Trustee
Dated: April 19, 2001
--------------
-16-
SCHEDULE I
----------
TO
--
JOINDER AGREEMENT
-----------------
Name and Address
of Additional Stockholder Shares Owned Options Owned
------------------------- ------------ -------------
BTM Irrevocable Trust UA 195,637 -0-
dated 09/08/89
c/o Xxxx X. X'Xxxxxxx, Trustee
000 Xxxxx Xxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
-17-
JOINDER AGREEMENT
The undersigned hereby agrees, effective as to the date hereof, (i) to
become a party to that certain Voting and Contribution Agreement (the
"Agreement") dated as of April 16, 2001 by and among Aman LLC, a Delaware
limited liability company (the "Company"), and the other parties named therein,
(ii) that for all purposes of the Agreement, the undersigned shall be included
within the term "Additional Stockholder" (as defined in the Agreement), and
(iii) that Schedule I to the Agreement shall be amended hereby to include the
information contained on Schedule I hereto.
The undersigned's name and address, "Shares Owned" and "Options Owned"
(as such terms are defined in the Agreement) are listed on Schedule I attached
hereto.
ADDITIONAL STOCKHOLDER
/s/ Xxxx X'Xxxxxxx
--------------------------
Name: Xxxx X'Xxxxxxx
Dated: April 13, 2001
--------------
-18-
SCHEDULE I
----------
TO
--
JOINDER AGREEMENT
-----------------
Name and Address
of Additional Stockholder Shares Owned Options Owned
------------------------- ------------ -------------
Xxxx X'Xxxxxxx 500,000* -0-
0 Xxxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
*Subject to a Voting Trust Agreement, dated December 30, 1999, pursuant to which
Xxxxxxx X. X'Xxxxxxx, Xx. may exercise the voting rights of such Shares in his
sole discretion.
-19-
