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EXHIBIT 10.44
Exhibit B
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
the ___ day of ______________, 1994, by and between MOMED HOLDING CO., a
Missouri corporation ("MOMED"), and MISSOURI STATE MEDICAL ASSOCIATION, a
Missouri not-for-profit corporation ("MSMA"), XXXXXXX X. XXXXXXX, M.D., XXXXXX
X. XXXXXXX and XXXXXXX X. XXXXX, XX., M.D. (hereinafter collectively referred
to as the "Select Shareholders").
RECITALS
A. The Select Shareholders are the record and beneficial owners and have
the power to vote the respective number of shares of MOMED Class A Common
Stock, $1.00 par value, (the "MOMED Class A Common Stock") set forth on
Schedule A hereto (collectively, the "Shares").
B. The Select Shareholders desire that MSMA and MOMED enter into a Share
Exchange Agreement (the "Share Exchange Agreement") and a Nomination Agreement
(the "Nomination Agreement").
C. The Select Shareholders are executing this Voting Agreement as an
inducement to MSMA to enter into and execute the Share Exchange Agreement and
the Nomination Agreement.
In consideration of the premises and the mutual terms and provisions set
forth in this Agreement, the parties hereto agree as follows:
1. Covenants of the Select Shareholders.
a. At any meeting of MOMED shareholders called to vote upon the Share
Exchange Agreement and the Nomination Agreement or at any adjournment thereof
or in any other circumstances in which a vote or other approval of the
shareholders of MOMED of the Share Exchange Agreement and the Nomination
Agreement is sought, the Select Shareholders severally shall vote (or cause to
be voted) the Shares in favor of the Share Exchange Agreement and the
Nomination Agreement as well as in favor of such amendments to the Restated
Articles of Incorporation of MOMED as may be necessary or appropriate to
effectuate the terms of any thereof.
b. At any meeting of MOMED shareholders or at any adjournment thereof or
in any other circumstances in which a vote or other approval of the
shareholders of MOMED is sought, the Select Shareholders severally shall vote
(or cause to be voted) the Shares against any transaction or proposal which
would in any manner impede, frustrate, prevent, impair or nullify the Share
Exchange Agreement or the Nomination Agreement or any of the other transactions
contemplated by such agreements.
c. During the term of this Voting Agreement, at any meeting of MOMED
shareholders called to vote upon the election of Directors to the MOMED Board
of Directors or at any adjournment thereof, the Select Shareholders severally
shall vote (or cause to be voted) all Shares owned by them, as set forth
opposite their respective names in Schedule A hereto, cumulatively, in such
manner as shall be necessary to elect as a Director the MSMA nominee whose name
shall appear on the proxy materials distributed by or on behalf of MOMED.
d. During the term of this Voting Agreement, each of the Select
Shareholders severally agrees that this Voting Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any person or
entity to whom legal or beneficial ownership of the Shares shall pass, whether
by operation of law or otherwise, including without limitation its respective
heirs, guardians, administrators or successors and to notify such transferee or
prospective transferee of the existence of this Voting Agreement. In the event
of any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of MOMED affecting the MOMED Class A
Common Stock, or acquisition of additional shares of MOMED Class A Common Stock
by any of the Select Shareholders, the number of Shares listed in Schedule A
beside the name of each such Select Shareholder shall be revised or adjusted
appropriately and this Voting Agreement and the obligations hereunder shall
attach to any such additional shares of MOMED Class A Common Stock.
2. Representations and Warranties. Each of the Select Shareholders
severally represents and warrants to MSMA that such Select Shareholder is the
beneficial and record owner of, and has full power and authority to dispose of
and the unrestricted right to vote, the number of shares of MOMED Class A
Common Stock set forth opposite such Select Shareholder's name in Schedule A
hereto.
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3. Legends. The Shares shall be legended to indicate that such Shares
are subject to the terms and conditions of this Voting Agreement.
4. Limitation of MSMA Ownership. During the term of this Voting
Agreement, including any extensions or renewals hereof, MSMA shall not, without
the consent of a majority of the MOMED Board of Directors, directly or
indirectly, acquire additional shares of the Class A Common Stock of MOMED so
as to increase its percentage ownership of the outstanding Class A Common Stock
of MOMED to more than fifteen percent (15%). In the event that MSMA's
percentage ownership of the MOMED Class A Common Stock should be increased on
account of any redemption of outstanding stock by MOMED, a reorganization of
the capital structure of MOMED or any other action of MOMED or its shareholders
(other than MSMA), MSMA shall not be deemed in default of this Paragraph 4.
5. Term. The term of this Voting Agreement shall begin on the closing
of the transactions contemplated in the Share Exchange Agreement and shall
expire sixty (60) months thereafter, but may be renewed or extended by
agreement of the parties hereto. Any renewal or extension of this Voting
Agreement must be agreed upon, in writing, at least six (6) months prior to the
end of the term of this Voting Agreement. Failure to renew or extend this
Voting Agreement as provided in this Paragraph 5 shall cause this Voting
Agreement to automatically expire and to be of no further force or effect.
6. Severability. Any provision of this Voting Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of any such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity, enforceability or legality of
such provision in any other jurisdiction, unless the ineffectiveness of such
provision would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
7. Entire Agreement. This Voting Agreement constitutes the entire
agreement between the parties and supersedes and cancels any and all prior
discussion, negotiations, undertakings and agreements between the parties
relating to the subject matter hereof.
8. Captions. The captions used herein are for convenience only and
shall not control of affect the meaning or construction of any of the
provisions of this Voting Agreement.
9. Waiver, Amendment or Modification. The conditions of this Voting
Agreement which may be waived may only be waived by notice to the other party
waiving such condition. The failure of any party at any time or times to
require performance of any provisions hereof (other than by written waiver)
shall in no manner affect the right at a later time to enforce the same. This
Voting Agreement may not be amended or modified except by a written document
duly executed by all of the parties hereto.
10. Rules of Construction. Unless the context otherwise requires: (a) a
term has the meaning assigned to it; (b) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles; (c) "or" is not exclusive; and (d) words in the singular
may include the plural and in the plural include the singular.
11. Counterparts. This Voting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same instrument.
12. Successors and Assigns. This Voting Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and assigns. There shall be no third party
beneficiaries hereof.
13. Governing Law; Assignment. This Voting Agreement shall be governed
by the laws of the State of Missouri. This Voting Agreement may not be
assigned by any of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Voting
Agreement as of the date first above written.
MOMED HOLDING CO.
By:
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Xxxxxxx X. Xxxxxxx, M.D.,
President and Chief Executive
Officer
MISSOURI STATE MEDICAL ASSOCIATION
By
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H. Xxxxx Xxxxxxx, M.D., President
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XXXXXXX X. XXXXXXX, M.D.
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XXXXXX X. XXXXXXX
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XXXXXXX X. XXXXX, XX., M.D.
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Schedule A
Shares of Common
Stock Owned with Percentage of Total
Shareholder Power to Vote Shares Outstanding
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Xxxxxxx X. Xxxxxxx, M.D. 12,025 5.4%
Xxxxxx X. Xxxxxxx 2,500 1.12%
Xxxxxxx X. Xxxxx, Xx., M.D. 13,062 5.9%
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