VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
[August 8], 2007, by and between IntegraMed America, Inc., a Delaware
corporation ("IntegraMed"), and the undersigned Stockholders (collectively,
"Stockholders," individually, a "Stockholder") of IntegraMed.
RECITALS
A. IntegraMed, Vein Clinics of America, Inc., a Delaware corporation,
IDVC Acquisition Co., a Delaware corporation and wholly-owned subsidiary of
IntegraMed ("IDVC") and Stockholders have entered into a Stock Purchase
Agreement of even date herewith (the "Stock Purchase Agreement") which provides
for the purchase by IDVC of all outstanding shares of common stock of VCA held
by Stockholders in consideration of certain cash and shares of Common Stock, par
value $.01 per share, of IntegraMed ("IntegraMed Common Stock") (the
transactions contemplated under the Stock Purchase Agreement, the
"Transactions").
B. Each Stockholder is the beneficial owner (as such term is defined
under Rule 13(d)(3) promulgated under the Securities Exchange Act of 1934, as
amended) of such number of shares of IntegraMed Common Stock, as set forth on
the signature page(s) hereof.
C. As an inducement and a condition to entering into the Stock Purchase
Agreement, IntegraMed has requested that Stockholders agree, and each
Stockholder has agreed (in Stockholder's capacity as such), to enter into this
Agreement in order to facilitate the consummation of the Transactions.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Definitions. For the purposes of this Agreement, capitalized terms
that are used but not defined herein shall have the respective meanings ascribed
thereto in the Stock Purchase Agreement.
"Expiration Date" shall mean two years from each date of receipt of
Shares by a Stockholder.
"Shares" shall mean: (i) all securities of IntegraMed (including all
shares of IntegraMed Common Stock and all options, warrants and other rights to
acquire shares of IntegraMed Common Stock) owned by a Stockholder as of the date
of this Agreement, and (ii) all additional securities of IntegraMed (including
all additional shares of IntegraMed Common Stock and all additional options,
warrants and other rights to acquire shares of IntegraMed Common Stock) of which
a Stockholder acquires beneficial ownership pursuant to the Stock Purchase
Agreement (including any Shares issued pursuant to an Earn-Out Payment).
A Person shall be deemed to have effected a "Transfer" of a security if
such Person directly or indirectly (i) offers for sale, sells, assigns, pledges,
encumbers, grants an option with respect to, transfers or otherwise disposes of
such security or any interest therein, or (ii) enters into an agreement,
commitment or other arrangement providing for the sale of, assignment of, pledge
of, encumbrance of, granting of an option with respect to, transfer of or
disposition of such security or any interest therein; provided, however, that
the granting by Stockholder of a security interest in Shares to a brokerage firm
to secure a cash loan from such brokerage firm for the purpose of purchasing
shares of IntegraMed Common Stock upon exercise of IntegraMed Options
outstanding on the date of this Agreement shall not be deemed a "Transfer" for
purposes of this Agreement.
2. Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer. Except as expressly contemplated by this Agreement, at all times
during the period commencing with the execution and delivery of this Agreement
and continuing until the Expiration Date, a Stockholder shall not, directly or
indirectly, (i) cause or permit the Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, unless such Transfer is made in compliance with applicable
federal and state securities laws in effect on the date hereof, (ii) grant any
proxies or powers of attorney with respect to any of the Shares, deposit any of
the Shares into a voting trust or enter into a voting agreement or other similar
commitment or arrangement with respect to any of the Shares in contravention of
the obligations of such Stockholder under this Agreement, (iii) request that
IntegraMed register the Transfer of any certificate or uncertificated interest
representing any of the Shares, unless such Transfer is made in compliance with
applicable federal and state securities laws, or (iv) take any action that would
make any covenant of such Stockholder contained herein untrue or incorrect, or
have the effect of preventing or disabling such Stockholder from performing any
of Stockholder's obligations under this Agreement. Each Stockholder hereby
agrees that, in order to ensure compliance with the restrictions referred to
herein, IntegraMed may issue appropriate "stop transfer" instructions to its
transfer agent in respect of the Shares.
3. Voting Agreement. At any meeting of IntegraMed's stockholders
called, however called, and at every adjournment or postponement thereof, each
Stockholder shall appear at such meeting, in person or by proxy, or otherwise
cause all of the Shares to be counted as present thereat for purposes of
establishing a quorum thereat, and such Stockholder shall vote, or cause to be
voted (and on every action or approval by written consent of stockholders, act,
or cause to be acted, by written consent) with respect to all of the Shares that
such Stockholder is entitled to vote or as to which such Stockholder has the
right to direct the voting, as of the relevant record date, in favor of any
proposal recommended by the management of IntegraMed and against any proposal
not recommended by the management of IntegraMed.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, each Stockholder shall deliver to IntegraMed an irrevocable proxy in
the form attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable
to the fullest extent permitted by applicable law, with respect to the Shares.
5. Representations and Warranties. Each Stockholder hereby represents
and warrants, severally and not jointly, as follows:
(a) Ownership of Shares. Stockholder is the beneficial owner (as
such term
is defined under Rule 13(d)(3) promulgated under the Securities
Exchange Act of 1934, as amended, except that such terms shall include
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Shares that may be acquired more than sixty (60) days from the date
hereof) of all of the Shares set forth on the signature page hereof.
Stockholder has sole voting power and the sole power of disposition
with respect to all such Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities
laws and the terms of this Agreement. Stockholder is the sole record
holder (as reflected in the records maintained by IntegraMed's transfer
agent for IntegraMed Common Stock) of all such Shares.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and
performance of this Agreement by Stockholder will not violate (i) any
agreement or court order to which Stockholder is a party or is subject,
including, without limitation, any voting agreement or voting trust or
(ii) any Law of any Governmental Entity. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes a
valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
(c) No Consents. The execution and delivery of this Agreement by
Stockholder does not, and the performance by Stockholder of its
obligations hereunder will not, require Stockholder to obtain any
consent, approval, authorization or permit of, or to make any filing
with or notification to, any Governmental Entity.
6. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in IntegraMed any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. Except as
provided in this Agreement, all rights, ownership and economic benefits
relating to the Shares shall remain vested in and belong to applicable
Stockholders.
7. Stockholder Notification of Acquisition of Additional Shares. At all
times during the period commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, each Stockholder shall
promptly notify IntegraMed of the number of any additional shares of IntegraMed
Common Stock and the number and type of any other voting securities of
IntegraMed acquired by such Stockholder, if any, after the date hereof.
8. IntegraMed Stop Transfer Instructions. At all times commencing with
the execution and delivery of this Agreement and continuing until the Expiration
Date, IntegraMed shall not register the Transfer (by book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Shares unless
such Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. IntegraMed shall instruct the transfer agent for
IntegraMed Common Stock (the "Transfer Agent") not to Transfer, at any time
commencing with the execution and delivery of this Agreement and continuing
until the Expiration Date, any certificate or uncertificated interest
representing any of the Shares unless and until the Transfer Agent has received
IntegraMed's consent to effect any such Transfer.
9. Termination. This Agreement shall terminate immediately and
automatically, without any action on the part of any party hereto, as of the
Expiration Date.
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10. Directors and Officers. Notwithstanding anything in this Agreement
to the contrary, if a Stockholder is a director or officer of IntegraMed,
nothing contained in this Agreement shall prohibit such director or officer from
acting in his/her capacity as such or from taking such action as a director or
officer of IntegraMed that may be required on the part of such person as a
director or officer of IntegraMed.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the documents and
instruments and other agreements among the parties hereto as
contemplated by or referred to herein, constitute the entire agreement
among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
(b) Certain Events. This Agreement and the obligations hereunder
shall attach to all of the Shares and shall be binding upon any person
to whom legal or beneficial ownership of any of the Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any Transfer
of any of the Shares, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
Notwithstanding the foregoing or anything to the contrary set forth in
this Agreement, this Agreement and the obligations hereunder shall not
attach to any Shares that are Transferred, and shall not be binding
upon any person to whom legal or beneficial ownership of any of the
Shares shall pass, in any Transfer effected by Stockholder pursuant to
the last sentence of Section 2 of this Agreement.
(c) Assignment. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior
written approval of the other parties. Any purported assignment in
violation of this Section shall be void.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed
by the parties hereto.
(e) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (i) on the date of
delivery if delivered personally, (ii) on the date of confirmation of
receipt (or, the first business day following such receipt if the date
is not a business day) of transmission by telecopy or telefacsimile, or
(iii) on the date of confirmation of receipt (or, the first business
day following such receipt if the date is not a business day) if
delivered by a nationally recognized courier service. All notices
hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to
receive such notice:
(i) if to IntegraMed, to:
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IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxx, CEO, President
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 212-953-7201
(ii) if to a Stockholder, to the address for notice set forth on
the signature page hereof
with copies to:
XxXxxxxxx Will & Xxxxx LLP
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Facsimile: 000-000-0000
(f) Severability. In the event that any provision of this Agreement
or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the
remainder of this Agreement will continue in full force and effect and
the application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of such void or unenforceable
provision.
(g) 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.
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(h) Governing Law; Venue. 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 law thereof. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and
the Federal courts of the United States of America located in the State
of Delaware solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in
this Agreement, and in respect of the transactions contemplated hereby,
and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of
any such document, that it is not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in
such a Delaware state or federal court. The parties hereby consent to
and grant any such court jurisdiction over the person of such parties
and over the subject matter of such dispute and agree that mailing of
process or other papers in connection with any such action or
proceeding in the manner provided in Section 11(e) hereof or in such
other manner as may be permitted by applicable law, shall be valid and
sufficient service thereof.
(i) Other Remedies; Specific Performance.
(i) Other Remedies. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the
exercise of any other remedy. The parties hereto 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.
(ii) Specific Performance. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any
state having jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity.
(j) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF INTEGRAMED IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(k) Counterparts. This Agreement may be executed in any number of
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 party, it
being understood that all parties need not sign the same counterpart.
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(l) Further Assurances. At the request of any party to another
party or parties to this Agreement, such other party or parties shall
execute and deliver such instruments or documents to evidence or
further effectuate (but not to enlarge) the respective rights and
obligations of the parties and to evidence and effectuate any
termination of this Agreement.
[Remainder of page left blank]
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IN WITNESS WHEREOF, the undersigned have executed, or caused this
Voting Agreement to be executed by a duly authorized officer, as of the date
first written above.
INTEGRAMED AMERICA, INC.
By:/s/Xxx Xxxxxx
---------------------
Name: Xxx Xxxxxx
Title:President & CEO
STOCKHOLDERS:
D. XXXXX XXXXXXXX, M.D. TRUST
DATED MAY 1, 2004
Signature:/s/D. Xxxxx XxXxxxxx
-----------------
Name: D. Xxxxx XxXxxxxx, Trustee
Address:
Facsimile No.:
Shares beneficially Owned:
_______ IntegraMed common shares
KUSH X. XXXXXXX LIVING TRUST
Signature:/s/Kush X. Xxxxxxx
---------------------------
Name: Kush X. Xxxxxxx, Trustee
Address: 000 Xxxxxxxxx Xxxxx,
Xxx Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
--------------
Shares beneficially Owned:
_______ IntegraMed common shares
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