VOTING AGREEMENT
EXHIBIT 10.1
VOTING AGREEMENT, dated as of December 20, 2006 (this “Agreement”), between NATIONAL
HEALTHCARE CORPORATION, a Delaware corporation (“Parent”), and NATIONAL HEALTH REALTY,
INC., a Maryland corporation (“Company”), and each stockholder of Parent and Company whose
name and signature is set forth on the signature page hereof
(collectively, the “Stockholders,” and
each, a “Stockholder”).
WHEREAS, Xxxxx Acquisition Sub LLC, a Delaware corporation and a wholly-owned subsidiary of
NHC/OP (“Merger Subsidiary”), NHC/OP, L.P., a Delaware limited partnership
(“NHC/OP”), Parent and Company are, concurrently with the execution hereof, entering into
an Agreement and Plan of Merger (the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, a successor to Company will merge with and into
Merger Subsidiary, with Merger Subsidiary being the surviving entity (the “Merger”), and upon the
consummation of the Merger each share of common stock of the successor to Company, par value $0.01
per share, will be converted into the right to receive the Merger Consideration;
WHEREAS, each Stockholder is the record and/or beneficial owner of such number of shares of
common stock of Parent, par value $0.01 per share (the “Parent Common Stock”), or shares of
common stock of Company, par value $0.01 per share (the “Company Common Stock”) as the case
may be, as is set forth opposite such Stockholder’s name on Schedule I hereof (collectively, the
“Existing Shares”);
WHEREAS, each Stockholder acknowledges that Merger Subsidiary, NHC/OP, Parent and Company are
entering into the Merger Agreement in reliance on the representations, warranties, covenants and
other agreements of such Stockholder set forth in this Agreement and would not enter into the
Merger Agreement if each such Stockholder did not enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein and in the Merger Agreement, and intending to
be legally bound hereby, Parent, Company and each Stockholder agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Merger Agreement. The following words have the meanings
given to them below.
“beneficial ownership” has the meaning set forth in Rule 13d-3 under the Exchange Act.
“Consolidation” means the consolidation of Company with its wholly-owned subsidiary
pursuant to the Articles of Consolidation, as a result of which a new Maryland corporation shall be
formed which (i) shall assume the corporate name “National Health Realty, Inc.,” (ii) shall have as
its outstanding stock only the stock of Company outstanding immediately prior to the effectiveness
of such consolidation, and (iii) shall succeed to the business, properties, assets and rights and
become subject to all of the obligations and liabilities of Company, including the Merger
Agreement.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“person” has the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act.
“Representative” with respect to any person who is an individual, any affiliate of
such person (including any family member or any entity controlled by such person), or any agent,
representative or advisor of such person, including any investment banker, attorney or accountant
retained by such person or any of such person’s affiliates.
“Shares” means, (i) with respect to each Stockholder of Company, all Existing Shares
of such Stockholder that are shares of Company Common Stock, and any shares of Company Common
Stock, beneficial ownership of which is acquired by such Stockholder after the date hereof,
including, without limitation, shares acquired by purchase or upon the exercise, conversion or
exchange of any option, warrant or convertible security, and (ii) with respect to each Stockholder
of Parent, all Existing Shares of such Stockholder that are shares of Parent Common Stock, and any
shares of Parent Common Stock, beneficial ownership of which is acquired by such Stockholder after
the date hereof, including without limitation, shares acquired by purchase or upon the exercise,
conversion or exchange of any option, warrant or convertible security.
“Support Documents” means this Agreement and all other agreements, instruments and
other documents executed and delivered by each Stockholder in connection with this Agreement.
“Termination Time” means the earliest of the following: (i) the time at which Parent
and Company give joint written notice to each of the Stockholders that the Termination Time has
occurred; (ii) the Effective Time; and (iii) the time at which the Merger Agreement terminates
pursuant to Section 7.01 thereof.
“Voting Shares” means, (i) with respect to each Stockholder of Company, such
Stockholder’s Shares, not including Shares that are the subject of unexercised options, warrants,
rights or convertible securities, and (ii) with respect to each Stockholder of Parent, such
Stockholder’s Shares, not including Shares that are the subject of unexercised options, warrants,
rights or convertible securities.
2. Agreement to Vote.
(a) In order to induce Merger Subsidiary and Parent to enter into the Merger Agreement, each
Stockholder of Company hereby agrees that, from and after the date hereof and until the Termination
Time, at any meeting of the stockholders of Company, however called, or in connection with any
written consent of the stockholders of Company, such Stockholder shall appear at each such meeting,
in person or by proxy, or otherwise cause such Stockholder’s Voting Shares to be counted as present
thereat for purposes of establishing a quorum, and each such Stockholder shall vote (or cause to be
voted) or act by written consent with respect to all of its Voting Shares that are beneficially
owned by each such Stockholder or its affiliates or as to which such Stockholder has, directly or
indirectly, the right to vote or direct the voting, (i) in favor of adoption and approval of the
Merger Agreement, the Consolidation and the Merger and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement and this Agreement; (ii) against any
action or agreement that would result in a breach of any covenant, representation or warranty or
any other obligation or agreement of Company contained in the Merger Agreement or of any
Stockholder of Company contained in this Agreement; (iii) against
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any Company Takeover Proposal; and (iv) against any other action, agreement or transaction
(other than the Merger Agreement and the transactions contemplated thereby) that is intended, or
could reasonably be expected, to impede, interfere or be inconsistent with, delay, postpone,
discourage or materially adversely affect the Consolidation, the Merger or the performance by each
of the Stockholders of Company of such Stockholder’s obligations under this Agreement, including,
but not limited to (A) any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving Company or any of its Subsidiaries (other than the
Consolidation or the Merger); (B) a sale, lease or transfer of a material amount of assets of
Company or any of its Subsidiaries or a reorganization, recapitalization or liquidation of Company
or any of its Subsidiaries; (C) a material change in the policies or management of Company; (D) an
election of new members to the board of directors of Company; (E) any material change in the
present capitalization or dividend policy of Company or any amendment or other change to Company’s
articles of incorporation (other than as contemplated in the Merger Agreement); or (F) any other
material change in Company’s corporate structure (other than as contemplated in the Merger
Agreement) or business. Each Stockholder of Company hereby agrees that such Stockholder will not
enter into any voting or other agreement or understanding with any person or entity or grant a
proxy or power of attorney with respect to such Stockholder’s Shares prior to the Termination Time
(other than a proxy or power of attorney to an officer of Parent that may be exercised solely in
accordance with this Section 2 and except as provided in Section 3 below) or vote or give
instructions in any manner inconsistent with clauses (i), (ii), (iii) or (iv) of the preceding
sentence. Each Stockholder of Company hereby agrees, during the period commencing on the date
hereof and ending on the Termination Time, not to vote or execute any written consent in lieu of a
stockholders meeting or vote, if such consent or vote by the stockholders of Company would be
inconsistent with or frustrate the purposes of the other covenants of such Stockholder pursuant to
this paragraph.
(b) In order to induce Company to enter into the Merger Agreement, each Stockholder of Parent
hereby agrees that, from and after the date hereof and until the Termination Time, at any meeting
of the stockholders of Parent, however called, or in connection with any written consent of the
stockholders of Parent, such Stockholder shall appear at each such meeting, in person or by proxy,
or otherwise cause such Stockholder’s Voting Shares to be counted as present thereat for purposes
of establishing a quorum, and each such Stockholder shall vote (or cause to be voted) or act by
written consent with respect to all of its Voting Shares that are beneficially owned by each such
Stockholder or its affiliates or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting, (i) in favor of the establishment and issuance of the Series A
Convertible Preferred Stock of Parent (including any related amendment to the certificate of
incorporation of Parent) pursuant to and in accordance with the Merger Agreement and in favor of
adoption and approval of this Agreement; (ii) against any action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or agreement of any
Stockholder of Parent contained in this Agreement; and (iii) against any other action, agreement or
transaction that is intended, or could reasonably be expected, to impede, interfere or be
inconsistent with, delay, postpone, discourage or materially adversely affect the performance by
each of the Stockholders of Parent of such Stockholder’s obligations under this Agreement. Each
Stockholder of Parent hereby agrees that such Stockholder will not enter into any voting or other
agreement or understanding with any person or entity or grant a proxy or power of attorney with
respect to such Stockholder’s Shares prior to the Termination Time (other than a proxy or power of
attorney to an officer of Company that may be exercised solely in accordance with this Section 2
and except as provided in Section 3 below) or vote or give instructions in any manner inconsistent
with clauses (i), (ii) or (iii) of the preceding sentence. Each Stockholder of Parent hereby
agrees, during the period commencing on the date hereof and ending on the Termination Time, not to
vote or execute any written consent in lieu of a
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stockholders meeting or vote, if such consent or vote by the stockholders of Parent would be
inconsistent with or frustrate the purposes of the other covenants of such Stockholder pursuant to
this paragraph.
3. Proxy.
(a) As security for its obligations under Section 2 hereof, each Stockholder of Company hereby
grants to, and appoints, Xxxxxx Xxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxx, in their respective capacities
as officers of Parent, and any individual who shall hereafter succeed to any such officer of
Parent, and any other person designated in writing by Parent, each of them individually, such
Stockholder’s proxy and attorney-in-fact (with full power of substitution) to vote or act by
written consent, to the fullest extent permitted by and subject to applicable law, with respect to
such Stockholder’s Shares in accordance with Section 2 hereof. THIS PROXY IS COUPLED WITH AN
INTEREST, SHALL BE IRREVOCABLE AND SHALL TERMINATE AT THE TERMINATION TIME. Each Stockholder of
Company will 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 such Stockholder’s Shares.
(b) As security for its obligations under Section 2 hereof, each Stockholder of Parent hereby
grants to, and appoints, Xxxxxx Xxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxx, in their respective capacities
as officers of Company, and any individual who shall hereafter succeed to any such officer of
Company, and any other person designated in writing by Company, each of them individually, such
Stockholder’s proxy and attorney-in-fact (with full power of substitution) to vote or act by
written consent, to the fullest extent permitted by and subject to applicable law, with respect to
such Stockholder’s Shares in accordance with Section 2 hereof. THIS PROXY IS COUPLED WITH AN
INTEREST, SHALL BE IRREVOCABLE AND SHALL TERMINATE AT THE TERMINATION TIME. Each Stockholder of
Parent will 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 such Stockholder’s Shares.
4. Representations and Warranties of Parent. Parent represents and warrants to each
Stockholder as follows:
(a) Organization. Parent is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Authority; Enforceability. Parent has the requisite corporate power and
authority to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by Parent’s board of directors and no other
corporate proceedings on the part of Parent are necessary to authorize the execution and
delivery of this Agreement by Parent and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by Parent and is a
valid and legally binding obligation of Parent, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency or other similar laws affecting the
rights and remedies of creditors generally, and subject to general principles of equity,
whether applied by a court of law or equity.
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(c) No Conflict. The execution and delivery of this Agreement by Parent do
not, and the performance of this Agreement by Parent will not, (i) conflict with or violate
the certificate of incorporation or by-laws of Parent, (ii) conflict with or violate any
law, rule, regulation or order applicable to Parent or by which any of its properties or
assets is bound, or (iii) conflict with, result in any breach of or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or require
payment under, or result in the creation of any lien on the properties or assets of Parent
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent is a party or by which
Parent or any of its respective properties is bound, except for any thereof that could not
reasonably be expected to materially impair the ability of Parent to perform its obligations
hereunder or under the Merger Agreement or to consummate the transactions contemplated
hereby or thereby on a timely basis.
5. Representations and Warranties of Company. Company represents and warrants to each
Stockholder as follows:
(a) Organization. Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland.
(b) Authority; Enforceability. Company has the requisite corporate power and
authority to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by Company’s board of directors and no other
corporate proceedings on the part of Company are necessary to authorize the execution and
delivery of this Agreement by Company and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by Company and is
a valid and legally binding obligation of Company, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency or other similar laws affecting the
rights and remedies of creditors generally, and subject to general principles of equity,
whether applied by a court of law or equity.
(c) No Conflict. The execution and delivery of this Agreement by Company do
not, and the performance of this Agreement by Company will not, (i) conflict with or violate
the charter or by-laws of Company, (ii) conflict with or violate any law, rule, regulation
or order applicable to Company or by which any of its properties or assets is bound, or
(iii) conflict with, result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or require payment under, or
result in the creation of any lien on the properties or assets of Company pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Company is a party or by which Company or any of its
respective properties is bound, except for any thereof that could not reasonably be expected
to materially impair the ability of Company to perform its obligations hereunder or under
the Merger Agreement or to consummate the transactions contemplated hereby or thereby on a
timely basis.
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6. Representations and Warranties of the Stockholders. Each Stockholder represents
and warrants to Parent and Company as follows:
(a) Organization. If such Stockholder is not an individual, such Stockholder
has been duly organized and is validly existing and in good standing under the laws of the
jurisdiction of its organization.
(b) Authority. If such Stockholder is not an individual, such Stockholder has
all necessary authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby, and the execution, delivery and
performance of this Agreement by such Stockholder and the consummation by such Stockholder
of the transactions contemplated hereby have been duly authorized by all necessary action on
the part of such Stockholder.
(c) Enforceability. This Agreement has been duly executed and delivered by
such Stockholder and is a valid and legally binding obligation of such Stockholder,
enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency
or other similar laws affecting the rights and remedies of creditors generally, and subject
to general principles or equity, whether applied by a court of law or equity.
(d) No Conflict. The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder will not, (i)
if such Stockholder is not an individual, conflict with or violate the certificate of
incorporation or by-laws, or trust agreement or other organizational documents, of such
Stockholder, (ii) conflict with or violate any law, rule, regulation or order applicable to
such Stockholder or by which any of such Stockholder’s properties or assets is bound, or
(iii) conflict with, result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or require payment under, or
result in the creation of any lien on the properties or assets of such Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or any of such Stockholder’s properties or assets is bound, except for any
thereof that would not result in the imposition of a lien on such Stockholder’s Shares and
would not reasonably be expected to materially impair the ability of such Stockholder to
perform such Stockholder’s obligations hereunder or under the Merger Agreement or to
consummate the transactions contemplated hereby or thereby on a timely basis.
(e) No Consent. The execution and delivery of this Agreement by such
Stockholder do not, and the performance by such Stockholder of such Stockholder’s
obligations hereunder will not, require such Stockholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to, any Governmental
Entity other than filings required under the Exchange Act disclosing the execution of this
Agreement and the terms hereof.
(f) No Proceedings. There is no suit, action, investigation or proceeding
pending or, to the knowledge of such Stockholder, threatened against such Stockholder at law
or in equity before or by any Governmental Entity that could reasonably be expected to
materially impair the ability of such Stockholder to perform such Stockholder’s obligations
hereunder on a timely basis,
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and there is no agreement, commitment or law to which such Stockholder is subject
that could reasonably be expected to materially impair the ability of such Stockholder to
perform such Stockholder’s obligations hereunder on a timely basis.
(g) Ownership. Such Stockholder’s Existing Shares are owned beneficially and
of record by such Stockholder except as indicated on Schedule I opposite such Stockholder’s
name. Such Stockholder’s Existing Shares constitute all of the shares of Parent Common
Stock or Company Common Stock, as the case may be, owned of record or beneficially by such
Stockholder. Except for units of NHR/OP, L.P. which are convertible into Company Common
Stock, all of the Existing Shares are issued and outstanding and, except as indicated on
Schedule I opposite such Stockholder’s name, such Stockholder does not own, of record or
beneficially, any warrants, options, convertible securities or other rights to acquire any
shares of Parent Common Stock or Company Common Stock, as the case may be. Such Stockholder
has not appointed or granted any proxy which is still effective with respect to any Shares.
Such Stockholder has sole voting power, sole power of disposition, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this Agreement,
in each case, with respect to all of such Stockholder’s Existing Shares, with no
limitations, qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(h) No Encumbrances. Such Stockholder’s Shares and the certificates
representing such Shares (if any) are now, and at all times during the term hereof will be,
held by the Stockholder, or by a nominee or custodian for the benefit of the Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever, except as
arising hereunder.
(i) No Finder’s Fees. Except as provided in the Merger Agreement, no broker,
investment banker, financial adviser or other person is entitled to any broker’s, finder’s,
financial adviser’s or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such Stockholder for
which Merger Subsidiary, Parent or Company or any of their respective Subsidiaries could be
or become liable.
7. Agreements of the Stockholders.
(a) Restrictions on Transfer; Proxies; Non-Interference.(i) Each Stockholder of
Company hereby agrees, until the Termination Time, not to (A) sell, transfer, pledge, encumber,
grant, assign or otherwise dispose of, enforce any redemption agreement with Company or enter into
any contract, option or other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, pledge, encumbrance, grant, assignment or other disposition of, record or
beneficial ownership of any of such Stockholder’s Shares (whether acquired heretofore or hereafter)
or any interest in any of the foregoing, except to Parent, (B) in connection with any Company
Takeover Proposal, vote, agree to vote, grant any proxy or power of attorney to vote, deposit into
a voting trust or enter into a voting agreement with respect to, any of such Stockholder’s Shares
except for, with, by or on behalf of Merger Subsidiary or Parent or (C) take any action that would
make any representation or warranty of such Stockholder contained herein untrue or incorrect or
have the effect of preventing such Stockholder from performing such Stockholder’s obligations under
this Agreement, or that would otherwise materially hinder or delay Parent from consummating the
Merger.
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(ii) Each Stockholder of Parent hereby agrees, until the Termination Time, not to take any
action that would make any representation or warranty of such Stockholder contained herein untrue
or incorrect or have the effect of preventing such Stockholder from performing such Stockholder’s
obligations under this Agreement.
(b) Non-Solicitation. Each Stockholder of Company acknowledges that such Stockholder
has received a copy of, and read, the Merger Agreement, including Section 4.02 thereof. Such
Stockholder agrees to comply with the provisions of the Merger Agreement to the extent applicable
to Company’s Representatives, and, without limiting the foregoing, agrees to, and to cause such
Stockholder’s Representatives to, comply with Section 4.02 thereof (for this purpose, the term
“Company Takeover Proposal” shall include any inquiry, expression of interest, proposal or offer
with respect to any matter described in Section 7(a) hereof).
(c) Information. (i) Each Stockholder of Company hereby agrees, until the Termination
Time, to notify Parent promptly of (A) the number of any additional shares of Company Common Stock
and the number and type of any other Shares of Company Common Stock acquired by such Stockholder,
if any, after the date hereof and (B) any such inquiries or proposals that are received by, any
such information that is requested from, or any such negotiations or discussions that are sought to
be initiated or continued with, such Stockholder of Company with respect to any matter described in
Section 7(a) or 7(b).
(ii) Each Stockholder of Parent hereby agrees, until the Termination Time, to notify Company
promptly of the number of any additional shares of Parent Common Stock and the number and type of
any other Shares of Parent Common Stock acquired by such Stockholder, if any, after the date
hereof.
(d) Waiver of Appraisal Rights. Each Stockholder of Company hereby waives any rights
of appraisal or rights to dissent from the Consolidation, the Merger and each of the other
transactions contemplated by the Merger Agreement that such Stockholder may have.
(e) Stop Transfer. Each Stockholder of Company will not request Company to, and
Company will not, register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder’s Shares, unless such transfer is made
in compliance with this Agreement.
8. Further Assurances. From time to time, at Parent’s or Company’s request and
without further consideration, each Stockholder shall execute and deliver such additional documents
and take all such further action as may be reasonably necessary or desirable to consummate and make
effective the transactions contemplated by this Agreement. Without limiting the generality of the
foregoing, no Stockholder shall enter into an agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) if such action would materially impair the ability
of such Stockholder to effectuate, carry out or comply with all of the terms of this Agreement.
9. Notices. All notices and other communications hereunder shall be in writing and shall be
deemed duly given (1) on the date of delivery if delivered personally, or by telecopy or
telefacsimile, upon confirmation of receipt, (2) on the first business day following the date of
dispatch if delivered by a recognized next-day courier service, or (3) on the fifth business day
following the date of mailing
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if delivered by registered or certified mail, return receipt requested, postage prepaid.
All notices hereunder shall be given the relevant party at the address stated in the Merger
Agreement, in the case of Parent and Company, and on Schedule I hereto, in the case of the
Stockholders, or at any other address as the party may specify for this purpose by notice to the
other party pursuant to this Section 9.
10. No Waivers. No failure or delay by Parent, Company or any Stockholder in
exercising any right, power or privilege under any Support Document shall operate as a waiver of
that right, power or privilege. A single or partial exercise of any right, power or privilege
shall not preclude any other or further exercise of that right, power or privilege or the exercise
of any other right, power or privilege. The rights and remedies provided in the Support Documents
shall be cumulative and not exclusive of any rights or remedies provided by law.
11. Amendments, Etc. No amendment, modification, termination or waiver of any
provision of any Support Document shall be effective unless it shall be in writing and signed and
delivered by Parent, Company and each affected Stockholder, and then it shall be effective only in
the specific instance and for the specific purpose for which it is given.
12. Successors and Assigns; Third Party Beneficiaries.
(a) Except pursuant to the Consolidation, no party shall assign any of such party’s rights or
remedies or delegate any of such party’s obligations or liabilities, in whole or in part, under any
Support Document. Any assignment or delegation in contravention of this Section 12 shall be void
ab initio and shall not relieve the assigning or delegating party of any obligation
under any Support Document.
(b) The provisions of each Support Document shall be binding upon and inure solely to the
benefit of the parties hereto and their respective permitted heirs, executors, legal
representatives, successors and assigns, and no other person.
13. Governing Law. This Agreement and each other Support Document shall be governed
by and construed in accordance with the laws of the State of Delaware, except as it relates to
shares of Maryland corporations in a way specifically governed by Maryland law
14. Severability of Provisions. If any term or other provision of any Support
Document is invalid, illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of such Support Document shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify such Support Document so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
15. Headings and References. Article and section headings in each Support Document
are included for the convenience of reference only and do not constitute a part of the Support
Document for any other purpose. References to articles and sections in any Support Document are
references to the sections of the Support Document unless the context shall require otherwise. Any
of the
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terms defined in this Agreement may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. The use in this Agreement of the word
“include” or “including,” when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not nonlimiting language
(such as “without limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
16. Entire Agreement. The Support Documents embody the entire agreement and
understanding of each of the parties hereto, and supersede all other written or oral prior
agreements or understandings, with respect to the subject matters of the Support Documents.
17.
Enforcement. The parties agree that irreparable damage would occur in the event that any
of the provisions of any Support 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 Support Agreements and to enforce
specifically the terms and provisions of the Support Agreements in any court of the United States
or of the State of New York court sitting in the Borough of Manhattan, City of New York, this being
in addition to any other remedy to which they are entitled at law or in equity.
18. Fees and Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with the Support Documents and the transactions contemplated hereby
and thereby shall be paid by the party incurring such expense.
19. Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if all signatures were on the same instrument.
20. Officers and Directors. Notwithstanding anything to the contrary in this
Agreement, in the event a Stockholder is a director or officer of Parent or Company, nothing in
this Agreement is intended or shall be construed to require such Stockholder, in his or her
capacity as a director or officer of Parent or Company, to act or fail to act in accordance with
his or her duties under applicable law in such capacity. Furthermore, no Stockholder who is or
becomes (during the term hereof) a director or officer of Parent or Company makes any agreement or
understanding herein in his or her capacity as a director or officer, and nothing herein will limit
or affect, or give rise to any liability to any Stockholder in such Stockholder’s capacity as a
director or officer of Parent or Company. For the avoidance of doubt, nothing in this Section 20
shall in any way limit, modify or abrogate any of the obligations of the Stockholders hereunder,
including (a) to vote the Shares in accordance with the terms of this Agreement and (b) in the case
of Stockholders of Company, to not transfer any of such Stockholders’ Shares except as permitted
under Section 7(a) above.
21. Waiver of Jury Trial. Each party to this Agreement, as a condition of such
party’s right to enforce or defend any right under or in connection with this Agreement or any
other Support Document, waives any right to a trial by jury in any action to enforce or defend any
right under this Agreement or any other Support Document and agrees that any action shall be tried
before a court and not before a jury.
-11-
IN WITNESS WHEREOF, Parent, the Company and each of the undersigned Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
| NATIONAL HEALTHCARE CORPORATION |
||||
| By: | /s/ R. Xxxxxxx Xxxxxx | |||
| Name: | R. Xxxxxxx Xxxxxx | |||
| Title: | Senior V.P., Operations | |||
| NATIONAL HEALTH REALTY, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | President | |||
-12-
| STOCKHOLDERS OF PARENT: |
||||
| /s/ Xxxxx Xxxx Xxxxxxxxx | ||||
| Name: | Xxxxx Xxxx Xxxxxxxxx | |||
| /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| /s/ W. Xxxxxx Xxxxx | ||||
| Name: | W. Xxxxxx Xxxxx | |||
| /s/ Xxxxxx X. Xxxxxxx, III | ||||
| Name: | Xxxxxx X. Xxxxxxx, III | |||
| /s/ Xxxx X. Xxxxxx | ||||
| Name: | Xxxx X. Xxxxxx | |||
| /s/ Xxxxxxx X. XxXxxxx, Xx. | ||||
| Name: | Xxxxxxx X. XxXxxxx, Xx. | |||
| /s/ Xxxxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxxxx X. Xxxxxx | |||
-13-
| STOCKHOLDERS OF COMPANY: |
||||
| /s/ Xxxxx Xxxx Xxxxxxxxx | ||||
| Name: | Xxxxx Xxxx Xxxxxxxxx | |||
| /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| /s/ W. Xxxxxx Xxxxx | ||||
| Name: | W. Xxxxxx Xxxxx | |||
| /s/ Xxxxxx X. Xxxxxxx, III | ||||
| Name: | Xxxxxx X. Xxxxxxx, III | |||
| /s/ Xxxxx X. Xxxx | ||||
| Name: | Xxxxx X. Xxxx | |||
| /s/ Xxxxxxx X. XxXxxxx, Xx. | ||||
| Name: | Xxxxxxx X. XxXxxxx, Xx. | |||
| /s/ Xxxxxx X. Xxxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxxx | |||
Schedule I
| Number of | ||||||
| Stockholder of Parent | Notice Address | Existing Shares | ||||
Xxxxx Xxxx Xxxxxxxxx
|
0000 Xxxxxxxxx Xx. Xxxxxxxxxxxx, XX 00000 |
10,473 | ||||
Xxxxxx X. Xxxxx
|
000 Xxxx Xx. Xxx. 0000 Xxxxxxxxxxxx, XX 00000 |
354,932 | ||||
W. Xxxxxx Xxxxx
|
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000 |
1,093,652 | ||||
Xxxxxx X. Xxxxxxx, III
|
0000 Xxxxxxxx Xxxx Xxxxxxxxxxxx, XX 00000 |
146,204 | ||||
Xxxx X. Xxxxxx
|
0000 Xxxx Xxxx Xxxxxxxxxxxx, XX 00000 |
6,000 | ||||
Xxxxxxx X. XxXxxxx, Xx.
|
0000 Xxxxxxx Xx. Xxxxxxxxxxxx, XX 00000 |
343,951 | ||||
Xxxxxxxx X. Xxxxxx
|
000 Xxxxxxxx Xxx Xxxx, XX 00000 |
720,155 | ||||
| Number of | ||||||
| Stockholder of Company | Notice Address | Existing Shares | ||||
Xxxxx Xxxx Xxxxxxxxx
|
0000 Xxxxxxxxx Xx. Xxxxxxxxxxxx, XX 00000 |
8,187 | ||||
W. Xxxxxx Xxxxx
|
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000 |
1,257,681 | ||||
Xxxxxx X. Xxxxx
|
000 Xxxx Xx. Xxx. 0000 Xxxxxxxxxxxx, XX 00000 |
436,309 | ||||
Xxxxxx X. Xxxxxxx, III
|
0000 Xxxxxxxx Xxxx Xxxxxxxxxxxx, XX 00000 |
140,000 | ||||
Xxxxx X. Xxxx
|
000 Xxxxx Xxxxx Xxxxxxxxxxxx, XX 00000 |
0 | ||||
Xxxxxx X. Xxxxxxx
|
0000 Xxxx Xxxxxx Xxxxxxxxxxxx, XX 00000 |
5,000 | ||||
Xxxxxxx X. XxXxxxx, Xx.
|
0000 Xxxxxxx Xx. Xxxxxxxxxxxx, XX 00000 |
372,714 | ||||
