Exhibit 2.24
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated March 31, 1999 (the
"Effective Date"), is by and among CenterPoint Advisors, Inc., a Delaware
corporation ("CenterPoint"), Simione, Scillia, Xxxxxx & Xxxxxxx LLC, a
Connecticut limited liability company ("SSLD"), and the managers of SSLD listed
on the signature pages hereof (each, a "Manager" and collectively, the
"Managers").
PREAMBLE
A. Concurrently herewith, CenterPoint, SSLD and SSLD Mergersub LLC, a
Delaware limited liability company and a direct wholly-owned subsidiary of
CenterPoint ("Mergersub"), are entering into a Merger Agreement (as amended from
time to time, the "Merger Agreement"; capitalized terms used but not otherwise
defined herein have the meanings assigned in the Merger Agreement). Pursuant to
the Merger Agreement, SSLD LLC, a Delaware limited liability company
("Company"), will be formed and capitalized by SSLD; SSLD will own all of the
outstanding membership interests of the Company ("Company Interests"); and the
Company will be merged with and into Mergersub, with Mergersub continuing as the
surviving company and as a direct wholly-owned subsidiary of CenterPoint
(collectively, the "Merger").
B. Each Manager owns membership interests of SSLD (the "SSLD Interests")
in the amounts set forth opposite such Manager's name and signature on the
signature pages hereof.
C. As an inducement and a condition to entering into the Merger Agreement,
CenterPoint has required that the Managers and SSLD agree, and the Managers and
SSLD have agreed, to enter into this Agreement.
STATEMENT OF AGREEMENT
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
CenterPoint, SSLD and the Managers agree as follows:
1. Provisions Concerning the SSLD Interests and the Company Interests.
SSLD and each Manager (as both a manager of SSLD and as a member of SSLD) hereby
agrees that during the period commencing on the Effective Date and continuing
until the first to occur of (a) the Effective Time or (b) the termination of the
Merger Agreement in accordance with its terms, at any meeting of the Managers of
SSLD or the holders of the Company Interests or of the SSLD Interests, however
called, or in connection with any written consent of the Managers of SSLD or the
holders of the Company Interests or of the SSLD Interests, (x) such Managers
shall vote their ballots as managers of SSLD, and shall cause the Company
Interests and the SSLD Interests held of record or Beneficially Owned (as
defined below) by SSLD and such Managers, respectively, whether heretofore owned
or hereafter acquired, to be voted, and (y) SSLD shall vote the Company
Interests: (i) in favor of approval of the Merger, the Merger Agreement, the
transactions contemplated by the Merger Agreement and any actions required in
furtherance hereof and
thereof; (ii) against any action or agreement that would result in a breach in
any respect of any covenant, representation or warranty or any other obligation
or agreement of SSLD, the Company, any Company Subsidiary or any Member under
the Merger Agreement; and (iii) except as otherwise agreed to in writing in
advance by CenterPoint, against the following actions (other than the Merger and
the agreements and transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving SSLD, the Company or any Company Subsidiary; (B)
a sale, lease or transfer of a material amount of assets of SSLD, the Company or
any Company Subsidiary, or a reorganization, recapitalization, dissolution or
liquidation of SSLD, the Company or any Company Subsidiary; (C) (1) any change
in a majority of the individuals who constitute the operating committee,
managers or the board of directors of each of SSLD, the Company or any Company
Subsidiary; (2) any change in the present capitalization of SSLD, the Company or
any Company Subsidiary or any amendment of Organizational Documents of SSLD, the
Company or any Company Subsidiary; (3) any other material change in SSLD's, the
Company's or any Company Subsidiary's corporate structure or business; or (4)
any other action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially and adversely affect the Merger
and the transactions contemplated by this Agreement and the Merger Agreement.
Such Manager shall not enter into any agreement or understanding with any Person
the effect of which would be inconsistent or violative of the provisions and
agreements contained in Section 1 or 2 of this Agreement. For purposes of this
Agreement, "Beneficially Own", "Beneficially Owned" or "Beneficial Ownership"
(or any other derivative of such terms) with respect to any securities shall
mean having "beneficial ownership" of such securities as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including, without limitation, pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
2. Other Covenants, Representations and Warranties. SSLD and each
Manager hereby represents and warrants to CenterPoint as follows:
(a) Ownership of SSLD Interests and Company Interests. Such Manager
is the record and Beneficial Owner of the number of SSLD Interests and
Company Interests as set forth opposite such Manager's name and signature
on the signature pages hereof. Such Manager has been duly elected,
appointed or designated a manager of SSLD in accordance with the Second
Amended and Restated Operating Agreement of SSLD and the Connecticut
Limited Liability Company Act. As of the Effective Time, SSLD shall be the
record and Beneficial Owner of all of the outstanding Company Interests.
Such Company Interests together with the number of Managers set forth on
the signature pages hereof, represent the requisite percentage of
membership interests and Managers required to approve the Merger, the
Merger Agreement, the transactions contemplated by the Merger Agreement and
any actions required in furtherance hereof and thereof. On the Effective
Date, the Managers set forth on the signature pages hereof constitute all
of the managers of SSLD. Such Manager has sole voting power and sole power
to issue instructions as a
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manager of SSLD with respect to the matters set forth in Section 1 of this
Agreement, with no limitations, qualifications or restrictions on such
rights and powers.
(b) Power; Binding Agreement. Each of SSLD and such Manager has the
legal capacity, power and authority to enter into and perform all of SSLD's
and such Manager's obligations under this Agreement. The execution,
delivery and performance of this Agreement by SSLD and such Manager will
not violate any other agreement to which SSLD or such Manager is a party
including, without limitation, any voting agreement, stockholders
agreement, voting trust, trust or similar agreement. This Agreement has
been duly and validly executed and delivered by SSLD and such Manager and
constitutes a valid and binding agreement of SSLD and such Manager,
enforceable against SSLD and such Manager in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which SSLD or such Manager is trustee whose
consent is required for the execution and delivery of this Agreement or the
consummation by SSLD and such Manager of the transactions contemplated
hereby.
(c) No Conflicts. (A) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by SSLD or such Manager and
the consummation by SSLD or such Manager of the transactions contemplated
hereby and (B) none of the execution and delivery of this Agreement by SSLD
or such Manager, the consummation by SSLD or such Manager of the
transactions contemplated by this Agreement or compliance by SSLD or such
Manager with any of the provisions of this Agreement shall (1) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which SSLD or
such Manager is a party or by which SSLD or such Manager or any of SSLD's
or such Manager's properties or assets may be bound, or (2) violate any
order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to SSLD or such Manager or any of SSLD's or such
Manager's properties or assets (other than to the extent any of the
foregoing relates to regulating, licensing or permitting the practice of
public accountancy).
(d) Accredited Investor. Each of the Managers identified as an
"accredited investor" on the signature pages hereof, represents and
warrants to Mergersub and CenterPoint that such Manager (i) is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act, (ii) is able to bear the economic risk of an investment in
the CenterPoint Common Stock acquired pursuant to the Merger Agreement and
can afford to sustain a total loss of such investment, (iii) has such
knowledge and experience in financial and business matters that such
Manager is capable of evaluating the merits and risks of the proposed
investment in the CenterPoint Common Stock and (iv) has had an adequate
opportunity to ask questions and receive answers from the officers of
CenterPoint concerning all matters relating to the transactions
contemplated herein and in the Merger Agreement including, without
limitation, the background and experience of the
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current and proposed officers and directors of CenterPoint, and the plans
for the business and operation of CenterPoint.
(e) Restriction on Transfer, Proxies and Non-Interference. SSLD and
such Manager shall not, directly or indirectly: (i) except as contemplated
by the Merger Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of such Manager's SSLD Interests or
SSLD's Company Interests or any interest therein; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney,
deposit any SSLD Interests or Company Interests into a voting trust or
enter into a voting agreement with respect to any SSLD Interests or Company
Interests; or (iii) take any action that would make any representation or
warranty of SSLD or such Manager contained herein untrue or incorrect or
have the effect of preventing or disabling such Manager from performing
such Manager's obligations under this Agreement.
(f) Reliance by CenterPoint. SSLD and such Manager understands and
acknowledges that CenterPoint is entering into the Merger Agreement in
reliance upon SSLD's and such Manager's execution and delivery of this
Agreement.
3. Further Assurances. From time to time, at CenterPoint's request and
without further consideration, SSLD and/or each Manager shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
4. Stop Transfer. SSLD and each Manager agrees with, and covenants to,
CenterPoint that SSLD and such Manager shall not request that the Company or
SSLD register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Manager's SSLD Interests or
SSLD's Company Interests, unless such transfer is made in compliance with this
Agreement. Without limiting the covenants in Section 1, in the event of a
distribution, or any change in SSLD Interests or Company Interests by reason of
any split-up, recapitalization, combination, exchange of SSLD Interests or
Company Interests or other equity interests or the like, the terms "SSLD
Interests" and "Company Interests" shall be deemed to refer to and include the
SSLD Interests and Company Interests, as applicable, as well as all such
distributions and any equity interests, into which or for which any or all of
the SSLD Interests or Company Interests may be changed or exchanged.
5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Managers, the SSLD Interests and
the Company Interests shall terminate upon the earlier of (a) the termination of
the Merger Agreement in accordance with its terms or (b) the Effective Time.
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6. Miscellaneous.
(a) Entire Agreement. This Agreement, the Merger Agreement and the
other agreements contemplated herein or therein constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of
this Agreement.
(b) Certain Events. SSLD and each Manager agrees that this Agreement
and the obligations hereunder shall attach to such Manager's SSLD Interests
and SSLD's Company Interests, respectively, and shall be binding upon any
person or entity to which legal or Beneficial Ownership of any such SSLD
Interests or Company Interests shall pass, whether by operation of law or
otherwise, including, without limitation, such Manager's heirs, guardians,
administrators or successors; provided, however, that in the event an
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individual who is not a party to this Agreement is duly elected, appointed
or designated to serve as manager of SSLD, SSLD and the Managers shall
require SSLD to cause such individual to become party to and bound by this
Agreement as a condition to such individual becoming a manager of SSLD.
Notwithstanding any such transfer of SSLD Interests or Company Interests,
the transferor shall remain liable for the performance of all obligations
of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto, provided that CenterPoint may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of CenterPoint, but no such assignment shall relieve CenterPoint
of its obligations hereunder if such assignee does not perform such
obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Managers, except upon the execution and delivery
of a written agreement executed by the parties hereto; provided, that, any
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manager of SSLD or the Company, who agrees to be bound by the terms of this
Agreement may become a signatory hereto without the agreement of any other
party hereto, and thereafter such added manager shall be treated as a
"Manager" for all purposes of this Agreement.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by
nationally recognized expedited delivery service providing proof of
delivery 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 notice given in accordance
with this Section):
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If to a Manager: At the address set forth
opposite such Manager's
name on the signature pages hereof
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
If to SSLD, to:
Simione, Scillia, Xxxxxx & Xxxxxxx, LLC
000 Xxxx Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
If to CenterPoint or Mergersub, to:
CenterPoint Advisors, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
with a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other
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provision or portion of any provision of this Agreement in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any of
such rights, powers or remedies by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(j) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Connecticut, without giving effect
to the principles of conflicts of law thereof.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts via
facsimile or otherwise, each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same
agreement.
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(n) Recovery of Attorney's Fees. In the event of any litigation
between the parties relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorney's fees and costs
(including court costs) from the non-prevailing party, provided that if
both parties prevail in part, the reasonable attorney's fees and costs
shall be awarded by the court in such manner as it deems equitable to
reflect the relative amounts and merits of the parties' claims.
* * *
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IN WITNESS WHEREOF, CenterPoint, SSLD and the Managers have caused this
Agreement to be duly executed as of the Effective Date.
CENTERPOINT ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
PERCENTAGE
OF
BENEFICIALLY
PERCENTAGE OWNED
OF COMPANY
BENEFICIALLY INTERESTS AS
"ACCREDITED" ADDRESS OWNED SSLD OF EFFECTIVE
"SSLD" (Yes/No) INTERESTS TIME
SIMIONE, SCILLIA, XXXXXX & XXXXXXX LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------- 100%
Its: Managing Principal
-----------------------------------
"MANAGERS"
/s/ Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, YES 16.12271
individually and as
Manager of SSLD
/s/ Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, YES 16.12271
individually and as
Manager of SSLD
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PERCENTAGE
OF
BENEFICIALLY
PERCENTAGE OWNED
OF COMPANY
BENEFICIALLY INTERESTS AS
"ACCREDITED" ADDRESS OWNED SSLD OF EFFECTIVE
(Yes/No) INTERESTS TIME
/s/ Xxxxxx Xxxxxxxxx
------------------------
Xxxxxx Xxxxxxxxx, YES 8.06136
individually and as
Manager of SSLD
/s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx, YES 4.23825
individually and as
Manager of SSLD
/s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx, NO 2.8963
individually and as
Manager of SSLD
/s/ W. Xxxxxx Xxxxxxx
-------------------------
W. Xxxxxx Xxxxxxx, YES 9.39365
individually and as
Manager of SSLD
/s/ Xxxxxxx X. XxXxxx
------------------------
Xxxxxxx X. XxXxxx, YES N/A
individually and as
Manager of SSLD
/s/ Xxxxx X. Xxxxx
------------------------
Xxxxx X. Xxxxx, YES 11.51465
individually and as
Manager of SSLD
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PERCENTAGE
OF
BENEFICIALLY
PERCENTAGE OWNED
OF COMPANY
BENEFICIALLY INTERESTS AS
"ACCREDITED" ADDRESS OWNED SSLD OF EFFECTIVE
(Yes/No) INTERESTS TIME
/s/ Xxxxxx Xxxxxx
---------------------
Xxxxxx Xxxxxx, Yes 15.15728
individually and as
Manager of SSLD
/s/ Xxxxxxx XxXxxx
---------------------
Xxxxxxx XxXxxx No 1.93086
individually and as
Manager of SSLD
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