SHAREHOLDER VOTING AGREEMENT
This
SHAREHOLDER VOTING AGREEMENT (this “Agreement”) is entered into as
of December 14, 2009, by and among Fresenius USA, Inc., a Massachusetts
corporation (“Acquiror”)
and the stockholders of Xcorporeal, Inc., a Delaware corporation (the “Company”), identified on Schedule A attached
hereto (each a “Stockholder” and collectively,
the “Stockholders”).
WITNESSETH:
WHEREAS,
as of the date hereof, each Stockholder “beneficially owns” (as such term is
defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended) and is entitled to dispose of (or to direct the disposition of) and to
vote (or to direct the voting of) that total number of shares of common stock,
par value $0.0001 per share (the “Common Stock”), of the Company
as are set forth adjacent to such Stockholder’s name on Schedule A attached
hereto (the “Owned
Shares”), as such shares may be adjusted after the date hereof by stock
dividend, stock split, recapitalization, combination, acquisition,
consolidation, reorganization or other change in the capital structure of the
Company affecting the Common Stock (such shares of Common Stock, together with
any other shares of Common Stock the voting power over which is acquired by a
Stockholder during the period from and including the date hereof through and
including the date on which this Agreement is terminated in accordance with its
terms, are collectively referred to herein as the “Subject Shares”);
WHEREAS,
Acquiror, the Company, Xcorporeal Operations, a Delaware corporation and a
wholly owned subsidiary of the Company (“Operations”) and National Quality
Care, Inc., a Delaware corporation (“NQCI”) propose to enter into
an Asset Purchase Agreement dated as of the date hereof (the “Purchase Agreement”), pursuant
to which Acquiror will purchase certain assets of the Company, Operations and
NQCI, (the “Acquisition”);
and
WHEREAS,
as a condition to the willingness of Acquiror to enter into the Purchase
Agreement, and as an inducement and in consideration therefor, Acquiror has
required that the Stockholders agree, and the Stockholders have agreed, to enter
into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Capitalized Terms. For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Purchase
Agreement.
ARTICLE
II
VOTING
AGREEMENT AND IRREVOCABLE PROXY
Section
2.1. Agreement to Vote the Subject
Shares. Each Stockholder, in its capacity as such, hereby agrees that,
during the period commencing on the date hereof and continuing until the
termination of this Agreement (such period, the “Voting Period”), at any
meeting (or any adjournment or postponement thereof) of the holders of any class
or classes of the capital stock of the Company, however called, such Stockholder
shall vote or cause to be voted the Subject Shares (a) in favor of the approval
of the terms of the Purchase Agreement, the Acquisition and the other
transactions contemplated by the Purchase Agreement (and any actions required in
furtherance thereof), (b) against any action, proposal, transaction or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Purchase
Agreement or of such Stockholder contained in this Agreement, and (c) except as
otherwise agreed to in writing in advance by Acquiror, against any action or
proposal involving the Company that is intended, or could reasonably be
expected, to prevent, impede, interfere with, delay, postpone or adversely
affect the transactions contemplated by the Purchase Agreement. Any
such vote shall be cast or consent shall be given in accordance with such
procedures relating thereto so as to ensure that it is duly counted for purposes
of determining that a quorum is present and for purposes of recording the
results of such vote or consent. During the Voting Period, each Stockholder
agrees not to enter into any written or oral contract, agreement, commitment,
letter of intent, agreement in principle, or understanding with any Person that
violates or conflicts with or could reasonably be expected to violate or
conflict with the provisions and agreements contained in this
Agreement.
Section
2.2. Grant of Irrevocable Proxy.
Each Stockholder hereby appoints Acquiror and any designee of Acquiror, and each
of them individually, as such Stockholder’s proxy and attorney-in-fact, with
full power of substitution and resubstitution, to cause such Stockholder’s
shares to be counted as present at any meeting of the Company’s Stockholders
during the Voting Period and to vote or act by written consent during the Voting
Period with respect to the Subject Shares in accordance with Section 2.1.
This proxy is given to secure the performance of the duties of such Stockholder
under this Agreement. Each Stockholder shall promptly cause a copy of this
Agreement to be deposited with the Company at its principal place of business.
Each Stockholder shall take such further action or execute such other
instruments as may be reasonably necessary to effectuate the intent of this
proxy. Each Stockholder hereby revokes all other proxies and powers of attorney
with respect to its Subject Shares that it may have previously granted, in each
case to the extent such prior or subsequent proxies or powers of attorney would
prevent such Stockholder from complying with such Stockholder’s obligations
under this Agreement.
Section
2.3. Nature of Irrevocable Proxy.
The proxy and power of attorney granted pursuant to Section 2.2 by each
Stockholder shall be irrevocable during the Voting Period, shall be deemed to be
coupled with an interest sufficient in law to support an irrevocable proxy and
shall revoke any and all prior proxies granted by such Stockholder. The power of
attorney granted by each Stockholder herein is a durable power of attorney and
shall survive the dissolution, bankruptcy, death or incapacity of such
Stockholder. The proxy and power of attorney granted hereunder shall immediately
terminate upon the termination of this Agreement pursuant to Section
5.1.
Section
2.4. Other
Rights. Except as provided by this Agreement or the Purchase
Agreement, each Stockholder shall exercise the full rights of a holder of
capital stock of the Company with respect to the Subject Shares and all economic
benefits of and relating to the Subject Shares shall remain vested in and belong
to such Stockholder.
Section
2.5. Stockholder
Capacity. Each Stockholder is executing this Agreement
solely in its capacity as an owner of the Subject Shares, and nothing in this
Agreement shall limit or affect any actions taken by such Stockholder in such
Stockholder’s fiduciary capacity as an officer or director of the
Company.
ARTICLE
III
COVENANTS
Section
3.1. Generally. Each
Stockholder agrees that during the Voting Period, except as contemplated by the
terms of this Agreement, such Stockholder shall not (i) sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (collectively, a “Transfer”), or enter into any
contract, option or other agreement with respect to, or consent to, a Transfer
of, any or all of the Subject Shares, (ii) grant any proxy, power of attorney,
or other authorization in or with respect to the Subject Shares, or (iii) take
any action that would have the effect of preventing, impeding, interfering with
or adversely affecting its ability to perform its obligations under this
Agreement.
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Section
3.2. Standstill Obligations of
Stockholders. Each Stockholder covenants and agrees with Acquiror that,
during the Voting Period:
(a) Such
Stockholder shall not, nor shall such Stockholder permit any of its controlled
Affiliates to, nor shall such Stockholder act in concert with or permit any of
its controlled Affiliates to act in concert with any Person to make, or in any
manner participate in, directly or indirectly, a “solicitation” of “proxies” (as
defined in the rules and regulations of the Securities and Exchange Commission)
or powers of attorney or similar rights to vote, or seek to advise or influence
any Person with respect to the voting of, any shares of Common Stock in
connection with any vote or other action on any matter, other than to recommend
that Stockholders of the Company vote in favor of the Acquisition and the
Purchase Agreement and otherwise as expressly provided by Article II of this
Agreement.
(b) Such
Stockholder shall not, nor shall such Stockholder permit any of its controlled
Affiliates to, nor shall such Stockholder act in concert with or permit any of
its controlled Affiliates to act in concert with any Person to, deposit any
shares of Common Stock in a voting trust or subject any shares of Common Stock
to any arrangement or agreement with any Person with respect to the voting of
such shares of Common Stock except as provided by Article II of this
Agreement.
(c) Such
Stockholder shall not, and shall cause its Representatives not to, directly or
indirectly: (i) submit, solicit, initiate, encourage or discuss any
proposal or offer from any Person or enter into any agreement or accept any
offer relating to any Acquisition Proposal, or (ii) furnish any information
with respect to, assist or participate in or facilitate in any other manner an
effort or attempt by any Person to effect or seek to effect any Acquisition
Proposal; provided, that nothing in this Section 3 shall limit or affect any
actions taken by such Stockholder in such Stockholder’s fiduciary capacity as an
officer or director of the Company. Each Stockholder hereby represents that it
is not now engaged in discussions or negotiations with any party other than
Acquiror with respect to any Acquisition Proposal. Each Stockholder
shall (i) promptly notify Acquiror (orally and in writing) if any offer is made
to such Stockholder, any discussions or negotiations are sought to be initiated
with such Stockholder, any inquiry, proposal or contact is made or any
information is requested from such Stockholder with respect to any Acquisition
Proposal, (ii) promptly notify Acquiror of the terms of any proposal that such
Stockholder may receive in respect of any Acquisition Proposal, and the identity
of the prospective purchaser, (iii) promptly provide Acquiror with a copy of any
such offer, if written, or a written summary of such offer, if not in writing,
and (iv) promptly keep Acquiror informed in all material respects of the status
and details (including material amendments or proposed material amendments) of
any such Acquisition Proposal of which such Stockholder is aware.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF STOCKHOLDER
Each
Stockholder hereby represents and warrants to Acquiror as follows:
Section
4.1. Authority. Such Stockholder
has all legal capacity and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by such Stockholder and constitutes a valid
and binding obligation of such Stockholder, enforceable in accordance with its
terms.
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Section
4.2. Ownership of Shares. As of the
date hereof, such Stockholder is the lawful owner of the Owned Shares and has
the sole power to vote (or cause to be voted) and dispose of such Owned
Shares. Such Stockholder holds that number of certificated Owned
Shares and uncertificated Owned Shares, in each case, as identified on Schedule A hereto.
Other than the Subject Shares and options to purchase Common Stock, as
identified on Schedule
A (which Schedule identifies any such exception by Stockholder), such
Stockholder does not own or hold any right to acquire any additional shares of
any class of capital stock of the Company or other securities of the Company or
any interest therein or any voting rights with respect to any securities of the
Company. The Subject Shares are not subject to any voting trust agreement or
other written or oral contracts, agreement, arrangement, commitment or
understanding to which such Stockholder is party restricting or otherwise
relating to the voting, dividend rights or disposition of the Subject Shares,
other than those created by this Agreement. Such Stockholder has good
and valid title to the Owned Shares, free and clear of any and all pledges,
mortgages, liens, charges, proxies, voting agreements, encumbrances, adverse
claims, options, security interests and demands of any nature or kind
whatsoever, other than those created by this Agreement.
Section
4.3. No Conflicts. (a) No filing
with any Governmental Authority, and no authorization, consent or approval of
any other Person is necessary for the execution of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (b) none of the execution and delivery of this Agreement
by such Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions
hereof shall (i) result in, or give rise to, a violation or breach of or a
default under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or any of its Subject Shares or assets may be
bound, or (ii) violate any Applicable Law which could reasonably be
expected to adversely affect such Stockholder’s ability to perform its
obligations under this Agreement.
Section
4.4. Reliance by Acquiror. Such
Stockholder understands and acknowledges that Acquiror is entering into the
Purchase Agreement in reliance upon the execution and delivery of this Agreement
by such Stockholder.
ARTICLE
V
TERMINATION
Section
5.1. Termination. This Agreement
shall terminate, and neither Acquiror nor any Stockholder shall have any rights
or obligations hereunder and this Agreement shall become null and void and have
no effect upon the earliest to occur of (i) the mutual consent of Acquiror and
the Stockholders to terminate this Agreement, (ii) the termination of the
Purchase Agreement in accordance with the terms thereof, (iii) the Closing Date,
and (iv) the first anniversary of the date hereof; provided, however, that the
termination of this Agreement shall not prevent any party hereunder from seeking
any remedies (at law or in equity) against any other party hereto for such
party’s breach of any of the terms of this Agreement. Notwithstanding the
foregoing, Section 6.1 and Sections 6.4 through 6.18, inclusive, of this
Agreement shall survive the termination of this Agreement.
ARTICLE
VI
MISCELLANEOUS
Section
6.1. Appraisal Rights. To the
extent permitted by applicable law, each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Acquisition that such Stockholder may
have under applicable law.
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Section
6.2. Publication.
(a) Each
Stockholder agrees that, during the Voting Period, such Stockholder shall not
issue any public release or announcement concerning the transactions
contemplated by this Agreement and the Purchase Agreement without the prior
consent of Acquiror, except as such release or announcement may, upon the advice
of such Stockholder’s counsel, be required by Applicable Law, in which case such
Stockholder shall inform the Acquiror prior to the issuance thereof and shall
reasonably consult with the Acquiror regarding thereof.
(b) Each
Stockholder hereby permits Acquiror and/or the Company to publish and disclose
in press releases and any other disclosures or filings required by Applicable
Law, its identity and ownership of shares of the Common Stock, the nature of its
commitments, arrangements and understandings pursuant to this Agreement and/or
the entire text of this Agreement.
Section
6.3. Further Actions. Each of the
parties hereto agrees that it will use its reasonable best efforts to do all
things reasonably necessary to effectuate this Agreement.
Section
6.4. Fees and Expenses. Except as
otherwise provided herein, each of the parties shall be responsible for its own
fees and expenses (including, without limitation, the fees and expenses of
financial consultants, investment bankers, accountants and counsel) in
connection with the entering into of this Agreement and the consummation of the
transactions contemplated hereby and the Purchase Agreement, regardless of
whether the Acquisition is consummated.
Section
6.5. Amendments, Waivers, etc. This
Agreement may not be amended, changed, supplemented, waived or otherwise
modified, except upon the execution and delivery of a written agreement executed
by each of the parties hereto. 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.
Section
6.6. Remedies.
(a) Each
Stockholder acknowledges that irreparable damage would occur and that it will be
impossible to measure in money the damage to Acquiror if such Stockholder fails
to comply with the obligations imposed by this Agreement, and that, in the event
of any such failure, Acquiror will not have an adequate remedy at law or in
damages. Accordingly, each Stockholder agrees that injunctive relief or any
other equitable remedy, in addition to any remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of any
such remedy on the basis that Acquiror has an adequate remedy at law. Each
Stockholder agrees not to seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with Acquiror seeking or obtaining
such equitable relief.
(b) Each
Stockholder also agrees that in the event that such Stockholder fails to comply
with any of its obligations imposed by this Agreement, Acquiror shall be
entitled to recover all costs and expenses incurred by Acquiror or its
Affiliates, including reasonable attorneys’ fees and costs, in addition to any
other remedies to which Acquiror or its Affiliates may be entitled at law or in
equity.
Section
6.7. Notices. Any notices or other
communications required or permitted under, or otherwise in connection with this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or upon confirmation of receipt when transmitted by
facsimile transmission (with confirmation) or on receipt after dispatch by
registered or certified mail, postage prepaid, addressed, or on the next
business day if transmitted by national overnight courier, in each case as
follows:
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If to
Acquiror, addressed to it at:
Fresenius
USA, Inc.
000
Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000-0000
Attn:
Xxxxxxx Xxxx
Facsimile
No. (000) 000-0000
Email:
xxxx.xxxx@xxx-xx.xxx
If to a
Stockholder: addressed to such Stockholder as set forth on Schedule
A
Section
6.8. Headings. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section
6.9. Severability. If any term or
other provision of this Agreement is invalid, illegal or incapable of being
enforced by any rule of Applicable Law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent
possible.
Section
6.10. Entire Agreement. This
Agreement (together with the Purchase Agreement, the schedules and exhibits
thereto and other documents and agreements delivered pursuant to the Purchase
Agreement, to the extent referred to herein) constitutes the entire agreement of
the parties and supersedes all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
Section
6.11. Assignment. This Agreement
shall not be assigned by operation of law or otherwise without the prior written
consent of each of the parties, except that Acquiror may assign and transfer its
rights and obligations hereunder to any entity that is wholly owned, directly or
indirectly, by Acquiror.
Section
6.12. Certain Events. Stockholder
agrees that this Agreement and the obligations hereunder shall attach to the
Subject Shares and shall be binding upon any Person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by operation of
law, or otherwise.
Section
6.13. Parties in Interest. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and their respective successors and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section
6.14. Mutual
Drafting. Each party hereto has participated in the drafting
of this Agreement, which each party acknowledges is the result of extensive
negotiations between the parties.
Section
6.15. Review By
Counsel. Each Stockholder acknowledges that the Stockholder
(a) has read this Agreement; (b) understands that this Agreement
constitutes certain binding obligations upon the part of the Stockholder;
(c) has been fully advised by legal counsel; and (d) intends to be
bound personally and legally by this Agreement.
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Section
6.16. Governing
Law. This Agreement and the transactions contemplated hereby,
and all disputes between the parties under or related to the Agreement or the
facts and circumstances leading to its execution, whether in contract, tort or
otherwise, shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to the application of Delaware principles of
conflicts of law.
Section
6.17. Counterparts. This Agreement
may be executed in two or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
Remainder
of Page Intentionally Left Blank
Signature
Page Follows
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IN
WITNESS WHEREOF, Acquiror and the Stockholders have caused this Agreement to be
duly executed as of the day and year first above written.
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FRESENIUS
USA, INC.
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By:
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/s/ Mohsen
Reihany
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Name:
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Mohsen Reihany |
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Title:
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Senior Advisor To Chairman of The Board |
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STOCKHOLDERS:
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/s/ Xxxxxx X.
Xxxxxx
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Xxxxxx
X. Xxxxxx
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Xxx
X. Xxxx
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/s/ Xxxxx X. XxXxxxx
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Xxxxx
X. XxXxxxx
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/s/ Xxxxxx
Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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[Signature
Page to Voting Agreement]
Schedule
A
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Name of Stockholder (including address)
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Common Stock
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Options
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||||||
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Xxxxxx
X. Xxxxxx
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6,232,596 | 700,000 | ||||||
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Xxxxx
X. XxXxxxx
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100,000 | 800,000 | ||||||
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Xxxxxx
Xxxxxxxxx
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20,000 | 300,000 | ||||||
