EXHIBIT 2.3
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of March 31, 1995,
between Horizon/CMS Healthcare Corporation, a Delaware corporation
("Acquiror"), and the undersigned stockholders (collectively, the
"Stockholders") of Pacific Rehabilitation & Sports Medicine, Inc., a
Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Stockholders beneficially own an aggregate of
856,565 shares (together with any additional shares as to which
beneficial ownership is acquired by any member of the Stockholder
Group described below, the "Company Shares") of Common Stock, par
value $.01 per share ("Company Common Stock"), of the Company.
WHEREAS, Acquiror is prepared to enter into an Agreement and
Plan of Merger with the Company (the "Merger Agreement") providing
for the merger of a wholly owned subsidiary of Acquiror into the
Company and the conversion in such merger of each share of Company
Common Stock into the number of shares of the Common Stock, par
value $.001 per share, of Acquiror set forth in the Merger Agreement
(the "Merger");
WHEREAS, the Stockholders fully support the Merger and, in
order to encourage Acquiror to enter into the Merger Agreement
with the Company, the Stockholders are willing to enter into
certain arrangements with respect to the Company Shares;
NOW THEREFORE, in consideration of the premises set forth
above, the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. STOCKHOLDERS' SUPPORT OF THE MERGER. From the date
hereof until November 15, 1996, or, if earlier, termination of the
Merger Agreement:
(a) No Stockholder or any corporation or other person
controlled by any Stockholder or any affiliate or associate
thereof, other than the Company and its subsidiaries
(collectively, the "Stockholder Group"), will, directly or
indirectly, sell, transfer, pledge or otherwise dispose of, or
grant a proxy with respect to, any Company Shares to any
person other than Acquiror or its designee, or grant an option
with respect to any of the foregoing, or enter into any other
agreement or arrangement with respect to any of the foregoing.
(b) No Stockholder or any other member of the
Stockholder holder Group will initiate, solicit or encourage
(including by way of furnishing information or assistance), or
take any other action to facilitate, any inquiries or the
making of any proposal relating to, or that may
reasonably be expected to lead to, any merger, consolidation,
share exchange, business combination or similar transaction
involving the Company or any of its subsidiaries or the
acquisition in any manner, directly or indirectly, of a
material equity interest in any voting securities of, or a
substantial portion of the assets of, the Company or any of
its Significant Subsidiaries, other than the transactions
contemplated by this Agreement (a "Competing Transaction"), or
enter into discussions or negotiate with any person or entity
in furtherance
of such inquiries or to obtain a Competing Transaction, or
agree to, or endorse, any Competing Transaction, or authorize
or permit any of the officers, directors or employees of any
Stockholder or any member of the Stockholder Group or any
investment banker, financial advisor, attorney, accountant or
other representative retained by any Stockholder or any other
member of the Stockholder Group to take any such action. Each
Stockholder shall promptly notify Acquiror of all relevant
terms of any such inquiries or proposals received by such
Stockholder or any other member of the Stockholder Group or by
any such officer, director, employee, investment banker,
financial advisor, attorney, accountant or other
representative relating to any of such matters and if such
inquiry or proposal is in writing, such Stockholder shall
deliver or cause to be delivered to Acquiror a copy of such
inquiry or proposal.
(c) The Stockholders agree that the Stockholders
will vote, and will cause each member of the Stockholder Group to
vote, all Company Shares beneficially owned by such persons
(I) in favor of the Merger and (ii) subject to the provisions
of paragraph (d) below, against any combination proposal or
other matter that may interfere or be inconsistent with the
Merger (including without limitation a Competing Transaction).
(d) The Stockholders agree that, if
requested by Acquiror, it will not, and it will cause each
member of the Stockholder Group not to, attend or vote any
Company Shares beneficially owned by any such person at any
annual or special meeting of stockholders, or execute any
written consent of stockholders, during such period.
(e) The Stockholders shall take all
affirmative steps reasonably requested by Acquiror to indicate
their full support for the Merger, and hereby consent to
Acquiror's announcement in any press release, public filing,
advertisement or other document, that the Stockholders fully
support the Merger.
(f) Acquiror and the Stockholders agree that they shall
use all reasonable efforts to seek the successful completion
of the Merger in an expeditious manner.
(g) To the extent inconsistent with the provisions of
this Section 2, each member of the Stockholder Group hereby
revokes any and all proxies with respect to such member's
Company Shares or any other voting securities of the Company.
Nothing in this Agreement shall be deemed to prohibit any Stockholder from
acting in accordance with such Stockholder's fiduciary duties solely to the
extent that such Stockholder is acting in the capacity of officer or director
of the Company.
2. MISCELLANEOUS.
(a) The Stockholders, on the one hand,
and Acquiror, on the other, acknowledge and agree that
irreparable damage would occur if 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 the provisions of this
Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any
state thereof having jurisdiction, in addition to any other
stockholder to which they may be entitled at law or equity.
(b) Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of
any provision of this Agreement.
(c) All notices, consents, requests, instructions,
approvals and other communications provided for herein shall
be validly given, made or served, if in writing and delivered
personally, by telecopier or sent by registered mail, postage
prepaid:
If to Acquiror:
Horizon/CMS Healthcare Corporation
0000 Xxxxxx Xxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Telecopier No: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx III
Telecopier No.: (000) 000-0000
If to the Stockholders:
Xxxx X. Xxxxxxxxx
Xx. Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxx
c/o Xxxxxxx XxxXxxxxx-Xxxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxx
Eleventh Floor
000 X.X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Telecopier No: (000) 000-0000
or to such other address or telecopier number as any party
may, from time to time, designate in a written notice given in
a like manner. Notice given by telecopier shall be deemed
delivered on the day the sender receives telecopier
confirmation that such notice was received at the telecopier
number of the addressee. Notice given by mail as set out
above shall be deemed delivered three days after the date the
same is postmarked.
(d) From and after the termination of this Agreement,
the covenants of the parties set forth herein shall be of no
further force or effect and the parties shall be under no
further obligation with respect thereto.
(e) DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(i) AFFILIATE. "Affiliate" shall have the
meaning ascribed to it in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
(ii) BENEFICIAL OWNER. A person shall
be deemed a "beneficial owner" of or to have "beneficial
ownership" Company Shares in accordance with the
interpretation of the term "beneficial ownership" as defined
in Rule 13-d(3) under the Exchange Act, as in effect on the
date hereof, provided that a person shall be deemed to be the
beneficial owner of, and to have beneficial ownership of,
Company Shares that such person or any Affiliate of such
person has the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrant or options, or otherwise.
(iii) MERGER. "Merger" shall mean the
transaction referred to in the second whereas clause of
this Agreement, or any amendment to or modification does
not reduce the value of the financial consideration to
be received by Stockholders pursuant to the transaction
set forth in the Merger Agreement.
(iv) PERSON. A "person" shall mean any
individual, firm, corporation, partnership, trust, limited
liability company or other entity.
(v) SIGNIFICANT SUBSIDIARY. "Significant
Subsidiary" shall have the meaning ascribed to it in Rule
1-02 of SEC Regulation S-X as in effect on the date hereof.
(g) DUE AUTHORIZATION, NO CONFLICTS.
The Stockholders hereby represent and warrant to Acquiror as
follows: the Stockholders have full power and authority to
enter into this Agreement. Neither the execution or delivery
of this Agreement nor the consummation of the transactions
contemplated herein will (a) conflict with or result in a
breach, default or violation of (i) any of the terms,
provisions or conditions of the Certificate of Incorporation
or Bylaws of any member of the Stockholder Group or (ii) any
agreement, proxy, document, instrument, judgment, decree,
order, governmental permit, certificate, license, law,
statute, rule or regulation to which any member of the
Stockholder Group is a party or to which it is subject, (b)
result in the creation of any lien, charge or other
encumbrance on any shares of Company Common Stock or (c)
require any member of the Stockholder Group to obtain the
consent of any private nongovernmental third party. No
consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental
department, commission, agency or other instrumentality or any
other person or entity is required to
authorize, or is otherwise required in connection with, the
execution and delivery of this Agreement or any Stockholder's
performance of the terms of this Agreement or the validity or
enforceability of this Agreement.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto
and their respective heirs, personal representatives, successors,
assigns and Affiliates, but shall not be assignable by any party
hereto without the prior written consent of the other parties hereto.
(i) WAIVER. No party may waive any of the terms or
conditions of this Agreement except by a duly signed writing
referring to the specific provision to be waived.
(j) GOVERNING LAW. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws
of the State of Delaware.
(k) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement, and supersedes all other and prior agreements
and understandings, both written and oral, among the parties hereto
and their Affiliates.
(1) COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the day and month first written above.
HORIZON/CMS HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: Senior Vice President of Subsidiary
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Operations
STOCKHOLDERS:
/s/ Xxxxx Xxxxxxxxx
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/s/ Xxxx X. Xxxxxxxxx
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/s/ Xxxxx Xxxxxxx
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