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 ba-
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sis,
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
mail-
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ing
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
|
Stockholder
of Parent
|
Notice
Address
|
Number
of
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
|
|
Stockholder
of Company
|
Notice
Address
|
Number
of
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
|
