AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of July 29, 1997, among
Xxxxxxx Inc., a Canadian corporation ("Parent"), EHI Acquisition Corp., a
Delaware corporation and an indirect wholly owned subsidiary of Parent
("Purchaser"), and each other person whose name is set forth on the signature
pages hereto (individually, a "Seller" and collectively, the "Sellers").
WHEREAS, Parent, the Purchaser, and EmCare Holdings Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, that Purchaser, upon the terms and subject to the conditions
thereof, will make a tender offer (the "Tender Offer") for all of the
outstanding shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock"), and thereafter Purchaser and the Company will be merged
(the "Merger") (the Tender Offer and Merger being collectively referred to as
the "Acquisition Transaction"); and
WHEREAS, each Seller is the holder or beneficial owner of, or has
dispositive and voting authority for, the number of shares of the Common Stock
set forth opposite the name of such Seller on the signature pages hereto
(collectively, the "Shares"); and
WHEREAS, as a condition to the willingness of Purchaser and Parent to
enter into the Merger Agreement, Purchaser and Parent have required, among other
things, that the Sellers execute and deliver this Agreement; and
WHEREAS, the Sellers are desirous of inducing Purchaser and Parent to
enter into the Merger Agreement and, therefore, are desirous of executing and
delivering this Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
Acquisition Transaction
Section 1.1 TENDER OFFER. The parties acknowledge that the
Purchaser and Parent would not have entered into the Merger Agreement without
the concurrent execution of this Agreement and that the Sellers, the Parent and
the Purchaser would not have entered into this Agreement without the concurrent
execution of the Merger Agreement. In connection with the Tender Offer, each
Seller severally agrees that such Seller will promptly tender, and not withdraw,
the Shares of such Seller pursuant to the terms of the Tender Offer.
Section 1.2 GRANT OF IRREVOCABLE PROXY. Each Seller hereby
irrevocably grants to the Purchaser, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, or
any of them (each a "Proxyholder"), each with full power of substitution, a
proxy to exercise all voting and other rights with respect to all such
Seller's Shares, including without limitation, with respect to the Merger and
the other matters contemplated by the Merger Agreement. All prior proxies and
powers given by each Seller with respect to such Seller's Shares are, without
further action, hereby revoked for so long as this Agreement is in effect, and
no subsequent proxies or powers may be given, and if given will not be
effective. Each Proxyholder will, with respect to the Shares, be empowered to
exercise all voting and other rights of the Sellers with respect to the Shares
as such Proxyholder, in his or its sole discretion, may deem proper at any
meeting of the Company's shareholders, by written consent or otherwise. The
foregoing proxy may be exercised by any Proxyholder only to the extent
consistent with the terms of this Agreement and the Merger Agreement.
ARTICLE II
Designated Affiliate and Adjustments
Section 2.1 DESIGNATED AFFILIATE. It is understood and agreed
among the parties that Purchaser may cause one or more companies which are
directly or indirectly controlled by or under common control with Parent
designated by it (the "Designated Affiliate" or "Designated Affiliates") to
carry out some or all of the provisions of this Agreement (including, without
limitation, the effectuation of the Acquisition Transaction); PROVIDED, HOWEVER,
that Purchaser shall nevertheless remain liable for all of its obligations and
those of the Designated Affiliate or Affiliates hereunder.
Section 2.1 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the
event of any change in any of the Shares by reason of any stock dividends,
split-ups, mergers, recapitalization or other changes in the corporate or
capital structure of the Company, the number and kind of such Shares subject to
this Agreement shall be appropriately adjusted.
ARTICLE III
Representations of
and Warranties by the Seller
Each Seller severally hereby represents and warrants to Purchaser and
Parent as follows:
Section 3.1 OWNERSHIP OF THE SHARES. Such Seller has full power
and authority to tender, sell, assign and transfer the number of the shares of
the Common Stock set forth opposite such Seller's name on the signature pages
hereto (which are all the shares of the Common Stock which such Seller so owns),
and will have (without exception) good and unencumbered title with respect to
all of the Shares of such Seller, free and clear of all liens, restrictions,
charges and encumbrances and such Shares will not be subject to any adverse
claim whatsoever, and upon the delivery of and payment for the Shares of such
Seller, Purchaser will receive good and
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unencumbered title with respect to all of such Shares, free and clear of all
liens, restrictions, charges and encumbrances and such Shares will not be
subject to any adverse claim whatsoever.
Section 3.2 AUTHORIZATION, VALID AND BINDING AGREEMENT. This
Agreement has been duly and validly authorized, executed and delivered by such
Seller and constitutes the valid and binding agreement of Seller enforceable
against such Seller in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency or other
similar laws affecting creditors' rights generally or by general equitable
principles.
Section 3.3 NO CONFLICTS. Neither the execution and delivery of
this Agreement nor the performance by such Seller of such Seller's obligations
hereunder will constitute a violation of, or conflict with, or constitute a
default under, any contract, commitment, agreement, understanding, arrangement
or restriction of any kind to which such Seller is a party or by which such
Seller is bound or any judgment, decree or order applicable to such Seller.
ARTICLE IV
Representations of and
Warranties by Purchaser and Parent
Purchaser and Parent hereby represent and warrant to such Seller as
follows:
Section 4.1 AUTHORIZATION; VALID AND BINDING AGREEMENT. This
Agreement has been duly authorized by all necessary corporate action on the part
of Purchaser and Parent. This Agreement has been duly and validly executed and
delivered by Purchaser and Parent, and constitutes the valid and binding
agreement of Purchaser and Parent, enforceable against Purchaser and Parent in
accordance with its terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditors'
rights generally or by general equitable principles.
Section 4.2 NO CONFLICTS. Neither the execution and deliver of
this Agreement nor the performance by Purchaser or Parent of its respective
obligations hereunder will constitute a violation of, or conflict with, or
constitute a default under, any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which Purchaser or Parent is a party
or by which Purchaser or Parent is bound or any judgment, decree or order
applicable to Purchaser or Parent.
ARTICLE V
Covenants
Section 5.1 NEGOTIATIONS. Following the execution of this
Agreement by the Sellers, each Seller severally agrees not to, directly or
indirectly, (i) initiate contact with, solicit or
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enter into negotiations with, any corporation, partnership, person or other
entity (a "Third Party") concerning any possible proposal that constitutes, or
may reasonably be expected to lead to, any Acquisition Proposal (as hereinafter
defined), or (ii) furnish any internal nonpublic financial or business
information to any corporation, partnership, person or other entity in
connection with any Acquisition Proposal; and each Seller severally agrees to
notify Purchaser immediately if any discussions or negotiations are sought to be
initiated, or any such information is requested, with respect to an Acquisition
Proposal or potential Acquisition Proposal of if any Acquisition Proposal is
received or indicated to be forthcoming. Purchaser and Parent each hereby
acknowledge that any action taken by a Seller in such Seller's capacity as a
director or executive officer of the Company contemplated by Section 5.2 of the
Merger Agreement shall not constitute a violation by such Seller of such
Seller's obligations under this Section 5.1. The term "Acquisition Proposal"
means the occurrence of any of the following events: (a) the Company or any
subsidiary of the Company is acquired by merger or otherwise by any Third Party;
(b) the Company or any subsidiary of the Company enters into an agreement with a
Third Party that contemplates the acquisition of 35% or more of the total assets
of the Company and its subsidiaries taken as a whole; (c) the Company enters
into a merger or other agreement with a Third Party that contemplates the
acquisition of beneficial ownership of more than 35% of the outstanding shares
of the Company's capital stock; or (d) a Third Party acquires more than 35% of
the outstanding shares of the Company's capital stock.
Section 5.2 OTHER TRANSACTIONS. Each Seller severally agrees that,
prior to the termination of this Agreement, such Seller shall not engage in any
action or omission that would have the effect of preventing or disabling such
Seller from delivering the Shares of such Seller to Purchaser hereunder or
otherwise performing such Seller's obligations under this Agreement or causing
any representation of or warranty by such Seller to be untrue. Without limiting
the foregoing and except as provided in this Agreement, each Seller severally
agrees not to sell or transfer, or agree to sell or transfer, any of the Shares
of such Seller or any interest in such Shares, shall keep such Shares free and
clear of all liens, charges and encumbrances and voting agreements, commitments,
agreements, understandings and arrangements of every kind and shall not give any
proxy with respect to the voting power of such Shares until the termination of
this Agreement.
Section 5.3 GUARANTY. Parent hereby guarantees the due performance
by Purchaser of any obligations of Purchaser hereunder.
Section 5.4 EMPLOYMENT AGREEMENTS. Each Seller severally agrees
and Parent agrees, and shall cause the Company, to enter into an employment
agreement in the form bearing the name of such Seller attached hereto as EXHIBIT
A OR B, as the case may be, immediately following the acceptance of shares of
the Company's stock pursuant to the Offer contemplated by the Merger Agreement.
ARTICLE VI
[Reserved]
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ARTICLE VII
Termination
Section 7.1 TERMINATION. This Agreement shall terminate at the
earliest of (a) the time mutually agreed to by Purchaser, Parent and the Sellers
expressed in writing, or (b) so long as Sellers are not in default under this
Agreement, the termination of the Merger Agreement in accordance with its terms.
Section 7.2 EFFECT OF THE TERMINATION. In the event of the
termination of this Agreement pursuant to Section 7.1, this Agreement shall
forthwith become void and have no effect, without liability on the part of any
party or its directors, officers or shareholders. Nothing contained in this
Article VII shall relieve any party from liability for any breach of this
Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1 EXPENSES. No party hereto will pay any fees and
expenses incurred by any other party in connection with this Agreement,
including without limitation the fees and expenses of such party's financial and
legal advisors and any brokerage or finder's fee incurred by such party, each
party representing that such party has incurred no obligation for any such fee
for which any other party is responsible.
Section 8.2 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser, Parent and the Seller in this
Agreement or in any instrument delivered by Purchaser, Parent and any Seller
pursuant to this Agreement shall not survive the Closing except for those
contained in Sections 3.1, 4.1 and 8.3 which shall survive the Closing and any
investigation at any time made by or on behalf of any party hereto.
Section 8.3 NON REGISTRATION. Purchaser acknowledges that the sale
of the Shares has not been registered under the securities Act of 1933,
represents that it is not acquiring the Shares with a view to the distribution
thereof, and agrees that it will not sell the Shares except pursuant to a
registration statement under that Act or an exemption from registration
thereunder.
Section 8.4 ASSIGNMENT; PARTIES IN INTEREST. Except as permitted
by Section 2.1 hereof or as required by operation of law, this Agreement shall
not be assignable by the parties hereto without the prior written consent of the
other parties. Notwithstanding the foregoing, Purchaser may assign this
Agreement an entity which controls or is controlled by the same persons who
control Purchaser. This Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and permitted
assigns.
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Section 8.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
documents referred to herein or delivered pursuant hereto which form a part
hereof, contain the entire understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may be
amended only by written instrument duly executed by all the parties. Any
condition to a party's obligations hereunder may be waived in writing by such
party.
Section 8.6 NOTICES. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and will be
deemed to have been duly given (i) when delivered if delivery is made in person,
by cable, telegram, telecopier or telex, (ii) on the next business day after
mailing by means of an overnight delivery service, or (iii) on the fifth
business day after deposit in the mails (registered or certified mail, postage
prepaid, return receipt requested), as follows:
(a) If to Purchaser or Parent, to:
Xxxxxxx Inc.
0000 X. Xxxxxxx Xxxx
P.O. Box 5028
Xxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Telecopy No. 000-000-0000
Telephone No. 000-000-0000
Attention: Xxxx X. Xxxxxx
(b) If to any Seller, to:
EmCare Holdings Inc.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
Telephone No. (000) 000-00000
Attention: [insert Seller's name]
or to such other address as the person to whom notice is to be given may have
previously furnished to the other parties in writing in the manner set forth
above. No notice, claim, certificate, request, demand or other communication
shall be deemed to have been duly given to any party hereto unless
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deemed to have been duly given in the manner set forth above to both such party
and any person or person designated to receive a copy.
Section 8.7 LAW GOVERNING. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
Section 8.8 SEVERABILITY OF PROVISIONS. In case any one or more of
the provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 8.9 COUNTERPARTS; HEADINGS. This Agreement may be executed
simultaneously in several counterparts, each of which will be deemed to be an
original, but all of which together will constitute one and the same instrument.
The article and section headings contained herein are for reference purposes
only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 8.10 REMEDIES. The parties hereto agree that if for any
reason any party hereto shall have failed to perform its obligations under this
Agreement, then any other party hereto seeking to enforce this Agreement against
such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
Section 8.11 FIDUCIARY DUTY. Nothing herein shall in any way affect
any action by any director or executive officer of the Company that is required
to be taken in order to discharge properly their fiduciary duties to the
Company.
Section 8.12 FURTHER ASSURANCES. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, property or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the Sellers, Purchaser or Parent, as the case may be, shall take all
such necessary action.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EHI ACQUISITION CORP.
By:
---------------------------
Title:
---------------------------
XXXXXXX INC.
By:
---------------------------
Title:
---------------------------
SELLERS
Number of Shares
of Common Stock:______
----------------------------------
Xxxxxxx X. Xxxxx, Xx., M.D.
Number of Shares
of Common Stock:_______ ----------------------------------
Xxxxxxx X. Xxxxxx, III
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