EXHIBIT 99.2
VOTING AGREEMENT
This Agreement is entered into as of October 19, 2002 by Stericycle,
Inc., a Delaware corporation ("Parent"), Sharps Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Parent ("MergerSub"), and
Xxxxxx X. Xxxxxxx, Xx., a Georgia resident ("Stockholder").
Background:
A. Stockholder is a significant stockholder of Xxxxxxx Healthcare,
Inc., a Delaware corporation ("Company"). He directly owns 493,983 shares of
Company Common Stock, par value $0.01 per share (the "Direct Shares"), and is
the sole stockholder, director and officer of RPS Investments, Inc. ("Holding
Company"), which owns 1,224,235.5 shares of Company Common Stock (the "Indirect
Shares").
B. In addition, Stockholder is the sole trustee of a voting trust for
the benefit of his adult children (the "Voting Trust"), which was established
under that certain Voting Trust Agreement, dated February 23, 1997, by and among
Xxxxxx X. Xxxxxxx, III, Xxxxxx X. Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxx and Xxxx X.
Xxxxxxx and which owns 562,739.5 shares of Company Common Stock (the "Voting
Trust Shares"). Stockholder is also a co-trustee, with shared voting power, of a
trust (the "Irrevocable Trust"), which owns 340,212 shares of Company Common
Stock (the "Irrevocable Trust Shares").
C. The Direct Shares, the Indirect Shares, the Voting Trust Shares and
the Irrevocable Trust Shares together represent approximately 60% of the
4,390,264 shares of Company Common Stock issued and outstanding as of the date
of this Agreement.
D. Concurrently with the execution of this Agreement, Parent, MergerSub
and Company have entered into an Agreement and Plan of Merger, dated October 19,
2002 (the "Merger Agreement"), pursuant to which Parent will acquire all of
Company's outstanding capital stock for cash through a merger of Company with
MergerSub (the "Merger").
E. Company's board of directors, based upon the unanimous
recommendation of a special committee of its board of directors, has resolved to
recommend that Company's stockholders of Company approve the Merger Agreement
and the consummation of the Merger.
F. Parent and MergerSub would not have entered into the Merger
Agreement without the voting and other assurances provided by Stockholder in
this Agreement.
Now, therefore, in consideration of their mutual promises, and
intending to be legally bound, the parties agree as follows:
1. DEFINITIONS
Capitalized terms used in this Agreement (including the preceding
background paragraphs) without being defined have the same meanings that they
have in the Merger Agreement.
2. VOTING
During the term of this Agreement, Stockholder shall vote all of the
Direct Shares, Indirect Shares and Voting Trust Shares in favor of the Merger
Agreement and the Merger at the Stockholders Meeting and at any adjournment of
the Stockholders Meeting.
During the term of this Agreement, but subject in all cases to any
fiduciary or similar duties, obligations or laws relating to Stockholder's
status as a trustee, Stockholder shall recommend voting in favor of the Merger
Agreement and the Merger in deliberations with his co-trustee regarding the
manner in which the Irrevocable Trust Shares are to be voted, with a view to
causing the Irrevocable Trust Shares to be voted in favor of the Merger
Agreement and the Merger at the Stockholders Meeting and at any adjournment of
the Stockholders Meeting.
During the term of this Agreement, Stockholder shall not:
(a) enter into any voting agreement, or give any Person a proxy
or power of attorney violative with Stockholder's obligations under
this Agreement, in respect of the Direct Shares or the Voting Trust
Shares, but subject in all cases to any fiduciary or similar duties,
obligations or laws relating to Stockholder's status as a trustee;
(b) permit the Holding Company to enter into any voting
agreement, or give any Person a proxy or power of attorney violative
with Stockholder's obligations under this Agreement, in respect of the
Indirect Shares; or
(c) agree or consent to have any of the Irrevocable Trust Shares
become subject to a voting agreement or a proxy or power of attorney
violative with Stockholder's obligations under this Agreement, but
subject in all cases to any fiduciary or similar duties, obligations or
laws relating to Stockholder's status as a trustee.
3. TRANSFERS
During the term of this Agreement, Stockholder shall not sell, transfer
or otherwise encumber ("Transfer") ownership or control of any of the Direct
Shares, or permit the Holding Company to Transfer ownership or control of any of
the Indirect Shares, otherwise than in accordance with the terms of the Merger,
unless Stockholder first provides Notice to Parent and MergerSub of the proposed
Transfer and delivers to Parent and MergerSub, prior to or concurrently with the
proposed Transfer and in form acceptable to Parent and MergerSub, the written
agreement of the proposed transferee to be bound by the terms of this Agreement
in respect of the Direct or Indirect Shares transferred.
-2-
During the term of this Agreement, but subject in all cases to any
fiduciary or similar duties, obligations or laws relating to Stockholder's
status as a trustee, if the Voting Trust authorizes Stockholder, as the sole
trustee, to Transfer Voting Trust Shares, Stockholder shall not exercise this
authority, otherwise than in accordance with the terms of the Merger, unless
Stockholder first provides Notice to Parent and MergerSub of the proposed
Transfer and delivers to Parent and MergerSub, prior to or concurrently with the
proposed Transfer and in form acceptable to Parent and MergerSub, the written
agreement of the proposed transferee to be bound by the terms of this Agreement
in respect of the Voting Trust Shares transferred.
During the term of this Agreement, but subject in all cases to any
fiduciary or similar duties, obligations or laws relating to Stockholder's
status as a trustee, Stockholder shall not propose to his co-trustee a Transfer
of any of the Trust Shares otherwise than in accordance with the terms of the
Merger, and shall oppose the Transfer of any of the Trust Shares in
deliberations with his co-Trustee regarding any Transfer proposed by the
co-trustee otherwise than in accordance with the terms of the Merger.
4. TERM
This Agreement shall terminate on the first of the following times or
events to occur:
(a) the Effective Time;
(b) the termination of the Merger Agreement pursuant to
Sections 8.1, 8.2 or 8.3 of the Merger Agreement;
(c) if the Merger Agreement becomes terminable pursuant to
Section 8.2(a) or 8.3(a);
(d) if (i) Parent or MergerSub has breached a material
representation, warranty or obligation under the Merger Agreement or
upon the failure of any Company Closing Condition and (ii) Company's
board of directors or the Special Committee withdraws or materially and
adversely to Parent modifies its approval of the Merger Agreement and
the Merger or its recommendation to the Stockholders;
(e) solely with respect to the Voting Trust Shares, upon the
termination of the Voting Trust pursuant to its terms; or
(f) solely with respect to the Irrevocable Trust Shares, upon
the termination of the Irrevocable Trust pursuant to its terms.
Upon the termination of this Agreement, all of Stockholder's
obligations under this Agreement shall terminate.
-3-
5. SPECIFIC PERFORMANCE
If for any reason Stockholder fails to perform any of his obligations
under this Agreement, Parent and MergerSub shall be entitled, as their sole
remedy for Stockholder's failure, to specific performance and injunctive relief.
6. NOTICES
All notices and other communications under this Agreement ("Notices")
shall be in writing and sent by certified or registered mail, overnight
messenger service, personal delivery or facsimile transmission, as follows:
(a) if to Stockholder, to:
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
with a copy to counsel, if designated by Stockholder
(b) if to Parent and MergerSub, to:
Stericycle, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to counsel to:
Xxxxxxx and Colmar
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx. Esq.
Facsimile: (000) 000-0000
All Notices sent by certified or registered mail shall be considered to
have been given three business days after being deposited in the mail. All
Notices sent by overnight courier service or personal delivery shall be
considered to have been given when actually received by the intended recipient.
All notices sent by facsimile transmission shall be considered to have been
given when transmitted with confirmation that transmission was made, so long as
a copy was also sent on the same day in either of the manners provided in the
sentence immediately
-4-
preceding this sentence. A party may change its or his address or facsimile
number for purposes of this Agreement by Notice in accordance with this
Paragraph 6.
7. CONSTRUCTION
As the context requires:
(a) the term "Direct Shares" includes all shares of Company
Common Stock that Stockholder may acquire after the date of this
Agreement;
(b) the term "Indirect Shares" includes all shares of Company
Common Stock that Holding Company may acquire after the date of this
Agreement;
(c) the term "Voting Trust Shares" includes all shares of
Company Common Stock that the Voting Trust may acquire after the date
of this Agreement; and
(d) the term "Irrevocable Trust Shares" includes all shares of
Company Common Stock that the Irrevocable Trust may acquire after the
date of this Agreement.
8. NO OWNERSHIP RIGHTS
Nothing in this Voting Agreement shall be considered to vest in Parent
or MergerSub any direct or indirect ownership or incidence of ownership of any
of the Direct Shares, Indirect Shares, Voting Trust Shares or Irrevocable Trust
Shares.
9. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be considered an original copy of this Agreement and all of which,
when taken together, shall be considered to constitute one and the same
agreement.
10. GOVERNING LAW; JURISDICTION
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware, without regard to the laws that might be
applicable under conflicts of law principles.
Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any
Delaware State court, or Federal court of the United States of America, sitting
in Delaware, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the agreements
delivered in connection herewith or the transactions contemplated hereby or
thereby or for recognition or enforcement of any judgment relating thereto, and
each of the parties hereby irrevocably and unconditionally (i) agrees not to
commence any such action or proceeding except in such courts, (ii) agrees that
any claim in respect of any such action or proceeding may be heard and
-5-
determined in such Delaware State court or, to the extent permitted by law, in
such Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State or
Federal court, and (iv) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware State or Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 6. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
11. BINDING EFFECT
This Agreement shall apply to, be binding in all respects upon and
inure to the benefit of parties and their respective heirs, legal
representatives, successors and permitted assigns.
12. IRREVOCABLE PROXY
Stockholder, for consideration received, hereby appoints Xxxx X. Xxxxxx
and Xxxxx X.X. ten Xxxxx and each of them as his proxies, with full power of
substitution in each of them, to cast on his behalf all votes entitled to be
cast by Stockholder with respect to the Direct Shares, the Indirect Shares, the
Voting Trust Shares and the Irrevocable Trust Shares (subject in all cases to
any fiduciary or similar duties, obligations, limitations or laws relating to
Stockholder's status as a trustee with respect to the Voting Trust Shares and
the Irrevocable Trust Shares) at the Stockholders Meeting and at any adjournment
thereof "FOR" approval and adoption of the Merger Agreement and the Merger. This
proxy is coupled with an interest and is irrevocable until such time as this
Agreement terminates in accordance with its terms.
-6-
In witness, the parties hereto have executed this Agreement.
STERICYCLE, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: President/CEO
SHARPS ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
XXXXXX X. XXXXXXX, XX.
