SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of ___________, 1999, by and among Xxxxxxx Central Holdings, Inc., a
Delaware corporation ("Xxxxxxx"), Xxxxxx X. Xxxxxxxx, a representative of
Capital Health Venture Partners, the general partner of American Healthcare Fund
II, L.P., as designated agent (the "Agent") of those shareholders of CareCentric
Solutions, Inc., a Delaware corporation ("CareCentric") listed in Appendix A
hereto (the "CareCentric Shareholders"), and Mestek, Inc. ("Mestek").
WHEREAS, Xxxxxxx, Xxxxxxx Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Xxxxxxx ("Subsidiary"), and CareCentric have
entered into an Agreement and Plan of Merger dated July 12, 1999 (the
"CareCentric Merger Agreement") with respect to the merger of CareCentric with
and into Subsidiary (the "CareCentric Merger");
WHEREAS, pursuant to the CareCentric Merger Agreement, the CareCentric
Shareholders will receive, in exchange for their shares of CareCentric capital
stock, shares of $.001 par value, Series A Preferred Stock of Xxxxxxx (the
"Xxxxxxx Preferred Stock"), which Xxxxxxx Preferred Stock will be convertible
into shares of common stock, $ .01 par value, of Xxxxxxx (the "Xxxxxxx Common
Stock") pursuant to that certain Certificate of Designations of Series A
Preferred Stock attached as Exhibit 9.3(e) of the CareCentric Merger Agreement
(the "Certificate of Designations");
WHEREAS, Xxxxxxx, Mestek and MCS, Inc. ("MCS"), a wholly owned subsidiary
of Mestek, have entered into an Agreement and Plan of Merger dated as of May 26,
1999 (the "Mestek Merger Agreement"), pursuant to which MCS will merge with and
into Xxxxxxx and Mestek will receive as consideration shares of Xxxxxxx Common
Stock;
WHEREAS, pursuant to Nasdaq rules, the approval of a majority of the
shareholders of Xxxxxxx, including Mestek, may be required to approve the
issuance of the Xxxxxxx Common Stock issuable upon conversion of the Xxxxxxx
Preferred Stock;
WHEREAS, because CareCentric will be merged out of existence pursuant to
the CareCentric Merger Agreement, the CareCentric Shareholders have appointed
the Agent, as a party to this Agreement, to represent their interests and
enforce their rights under this Agreement; and
WHEREAS, Mestek and Xxxxxxx are executing this Agreement as an inducement
to CareCentric to carry out the CareCentric Merger;
NOW, THEREFORE, in consideration of the execution and delivery by
CareCentric of the CareCentric Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows: 1. Representations and Warranties. Mestek represents and warrants to
the Agent and the shareholders of CareCentric as follows:
(a) Subject to Section 3 hereof, upon consummation of the merger of
Xxxxxxx and MCS, Mestek will be the record and beneficial owner of the
number of shares (the "Shares") of capital stock of Xxxxxxx ("Xxxxxxx
Stock") set forth on Appendix B hereto;
(b) This Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, Mestek, enforceable
against Mestek in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor the
consummation by Mestek of the transactions contemplated hereby will result
in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of
any kind to which Mestek is a party or bound or to which the Shares are
subject. Consummation by Mestek of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to Mestek or the Shares.
(d) Subject to Section 3 hereof, the Shares and the certificates
representing such Shares, upon receipt by Mestek and at all times during
the remaining term of this Agreement following that receipt, will be held
by Mestek, or by a nominee or custodian for the benefit of Mestek, free and
clear of all proxies, voting trusts or voting agreements, except for any
such proxies, voting trusts or voting agreements (i) arising under or in
accordance with the provisions of the Mestek Merger Agreement or the
CareCentric Merger Agreement, or (ii) which have no adverse effect
whatsoever on the rights granted to the CareCentric Shareholders or Agent
hereunder.
(e) Mestek understands and acknowledges that CareCentric has entered
into the CareCentric Merger Agreement in reliance upon Mestek's execution
and delivery of this Agreement.
2. Voting Agreements. Subject to Section 3 hereunder, after Mestek's
receipt of the Shares, Mestek agrees with, and covenants to the Agent and the
shareholders of CareCentric as follows:
(a) At any meeting of shareholders of Xxxxxxx called to vote upon the
issuance of shares of Xxxxxxx Common Stock in connection with the
conversion of the Xxxxxxx Preferred Stock into shares of Xxxxxxx Common
Stock (the "Conversion") or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with respect to
the Conversion is sought (the "Shareholders' Meeting"), Mestek shall vote
or consent (or cause to be voted or consented) Mestek's Shares in favor of
the issuance of shares of Xxxxxxx Common Stock in connection with the
Conversion, or any other transaction necessary to effect the Conversion.
(b) At any meeting of shareholders of Xxxxxxx or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, Mestek shall vote or consent (or cause to be
voted or consented) the Shares against any amendment of Xxxxxxx'x
Certificate of Incorporation or Bylaws or other proposal or transaction
involving Xxxxxxx which amendment or other proposal or transaction would in
any manner impede, frustrate, prevent or nullify the CareCentric Merger,
the CareCentric Merger Agreement, any of the other transactions
contemplated by the CareCentric Merger Agreement, or the Conversion.
3. Covenants. Mestek agrees with, and covenants to the Agent and the
shareholders of CareCentric that Mestek shall not (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of the
Shares or any interest therein, except pursuant to the Mestek Merger Agreement
or as permitted in this Agreement, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
Shares or any interest therein (other than pursuant to the Mestek Merger
Agreement and this Agreement), (iii) grant any proxy, power of attorney or other
authorization in or with respect to such Shares, except for this Agreement, or
(iv) deposit such Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares; provided, that (a) Mestek may transfer
(as defined above) any of the Shares to any other person who is on the date
hereof, or to any family member of a person or charitable institution which
prior to such transfer becomes, a party to this Agreement bound by all the
obligations of Mestek hereunder, and (b) Mestek may transfer (as defined above)
any of the Shares or any of the stock of MCS to the stockholders of Mestek as
long as holders of at least sixty percent of the Shares executes a shareholder
voting agreement (the "Substitute Voting Agreements") for the benefit of the
CareCentric Shareholders substantially in the form of this Agreement.
4. Certain Events. Mestek agrees that this Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of the Shares shall pass, whether
by operation of law or otherwise, including without limitation Mestek's
successors or assigns; provided however that, in the event of a transfer of
Shares as permitted in Section 3(b), this Agreement and the obligations
hereunder shall not attach to or be binding upon any of the Shares transferred
to persons not executing Substitute Voting Agreements as provided in Section
3(b). In the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Xxxxxxx affecting
the Xxxxxxx Common Stock, or the acquisition of additional shares of Xxxxxxx
Common Stock or other voting securities of Xxxxxxx by Mestek, the number of
Shares subject to the terms of this Agreement shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of Xxxxxxx Common Stock or other securities of Xxxxxxx issued to or
acquired by Mestek.
5. Stop Transfer. Xxxxxxx agrees with, and covenants to the Agent and the
shareholders of CareCentric that Xxxxxxx shall not register the transfer of any
certificate representing any of the Shares, unless such transfer is made to
Xxxxxxx or otherwise in compliance with this Agreement and the Mestek Merger
Agreement.
6. Third Party Beneficiaries. All CareCentric Shareholders are intended
third party beneficiaries of this Agreement, with the right to enforce all
rights of the Agent or of the CareCentric Shareholders and obligations of Mestek
or Xxxxxxx hereunder; provided, however, such rights shall not apply to any
CareCentric Shareholders that no longer hold any shares of Xxxxxxx Preferred
Stock. Further, the Agent shall have the right to enforce on the behalf of the
CareCentric Shareholders all rights of the CareCentric Shareholders and
obligations of Mestek or Xxxxxxx hereunder.
7. Further Assurances. Mestek shall, upon request of the Agent, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by the Agent to be necessary or desirable to carry out the provisions
hereof.
8. Termination. This Agreement shall terminate (i) upon the date upon which
the CareCentric Merger Agreement is terminated in accordance with its terms,
(ii) if the CareCentric Merger is consummated, upon the date at which the
Conversion is completed, (iii) upon the closing of a Change of Control
Transaction (as defined in the Merger Agreement) with respect to Xxxxxxx, or
(iv) if the CareCentric Merger is consummated, upon the date upon which Xxxxxxx
has satisfied in full its obligations, if any, to purchase shares of Xxxxxxx
Preferred Stock pursuant to Section 6 of the Certificate of Designations.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the CareCentric
Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if (and
then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice): (i) if to Xxxxxxx, to the address provided in
the CareCentric Merger Agreement; (ii) if to the Agent, to its address
shown below its signature on the last page hereof; and (iii) if to Mestek,
to the address provided in the Mestek Merger Agreement.
(c) 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.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(f) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other parties, except as expressly contemplated by
Section 3. Any assignment in violation of the foregoing shall be void.
(g) Mestek agrees that irreparable damage would occur and that the
Agent and the shareholders of CareCentric would not have any adequate
remedy at law in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Agent and the
shareholders of CareCentric shall be entitled to an injunction or
injunctions to prevent breaches by Mestek of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of Georgia or in Georgia state court,
this being in addition to any other remedy to which they are entitled at
law or in equity.
(h) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full
force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law.
(i) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
(j) This Agreement (including the CareCentric Merger Agreement and
documents contemplated therein and any other documents and instruments
referred to herein) constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(signatures on following pages)
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
XXXXXXX CENTRAL HOLDINGS, INC.
By: ______________________________________
Chief Executive Officer
AGENT
__________________________________________
Xxxxxx X. Xxxxxxxx
Title: ___________________________________
Address: _________________________________
__________________________________________
MESTEK, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
APPENDIX A
CARECENTRIC SHAREHOLDERS
NAME ADDRESS CLASS OF SHARES NUMBER OF SHARES
BENEFICIALLY OWNED BENEFICIALLY OWNED
APPENDIX B
SHARES OF XXXXXXX COMMON STOCK TO BE BENEFICALLY OWNED BY MESTEK
7,446,644
