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EXHIBIT 99.4
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), dated as of August 3, 1998, is
by and among Universal Standard Healthcare, Inc., a Michigan corporation (the
"Company"), Laboratory Corporation of America Holdings, a Delaware corporation
("LCA"), Anixter International, Inc., a _______ corporation ("Anixter"), Signal
Capital Corporation, a Delaware corporation ("Signal"), Portfolio Investment
Company Limited, a Cayman Islands corporation ("PICL"), CLF, Ltd., a Cayman
Islands corporation ("CLF I"), and CLF, L.P., a Cayman Islands corporation ("CLF
II") (Anixter, Signal, PICL, CLF I and CLF II shall collectively be referred to
herein as the "Shareholders").
WHEREAS, Section 5 of the Stock Purchase Agreement dated July 16, 1998
between the Company and LCA (the "Stock Purchase Agreement") provides that the
Company, LCA and the Shareholders execute and deliver this Agreement as a
condition precedent to the effectiveness of the Stock Purchase Agreement.
WHEREAS, Sections VI and VII of the Purchase Agreement dated July 16,
1998 between the Company and LCA (the "Purchase Agreement") provides that the
Company, LCA and the Shareholders execute and deliver this Agreement as a
condition precedent to the effectiveness of the Purchase Agreement.
WHEREAS, each of the Shareholders own the number of shares of capital
stock of the Company, representing the percentages of ownership of all
outstanding stock of the Company, all as shown on Exhibit 1 attached hereto.
NOW, THEREFORE, in consideration of promises and mutual covenants and
agreements, set forth herein, and to induce LCA to enter into the Stock Purchase
Agreement and the Purchase Agreement, the parties agree as follows:
Section 1. Board Nominations. (a) So long as the Company's Articles of
Incorporation provide for the staggered election of the members of the Company's
Board of Directors, including three year terms of office for directors, (a
"Staggered Board"), in the election of directors of the Company to be held in
2001 and every three years thereafter during the term of this Agreement (each a
"LCA Nominee Election Year"), each of the Shareholders agrees to vote all shares
of Common Stock of the Company (the "Common Stock") and any and all other voting
securities of the Company ("Other Voting Securities") (collectively, the Common
Stock and the Other Voting Securities shall be referred to as the "Voting
Securities") then held by such Shareholder for, and to take all other necessary
action to cause, the election as a director of the Company one nominee to be
designated by LCA for that purpose (the "LCA Director").
(b) In the event that the Company's Articles of Incorporation
shall no longer provide for a Staggered Board, then, in each election of
directors of the Company during the term of this Agreement, each of the
Shareholders agrees to vote all shares of Voting Securities then held by them
for, and take all other necessary action to cause, the election of the LCA
Director as a director of the Company.
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(c) The Company shall deliver a written request to LCA (the
"Nomination Request") that LCA designate its LCA Director in writing no earlier
than 90 days prior to and no later than 60 days prior to the scheduled date for
the Company's annual or special meeting of shareholders to elect directors. LCA
shall notify the Company of the identity of the LCA Director no later than 10
days after LCA's receipt of the Nomination Request. The Company shall notify LCA
of the identity of each director nominee designated by any of the other
Shareholders no later than 10 days after the Company's receipt of any
designation. The Company shall notify each of the other Shareholders and LCA of
the identity of the LCA Director no later than 10 days after the Company's
receipt of such designation from LCA.
(d) If LCA fails to designate the LCA Director as provided in
(c) above, it shall be deemed that the LCA Director then serving as a director
of the Company shall be its LCA Director designee for election at the next
meeting of shareholders of the Company at which an LCA Director is so required
to be elected.
(e) Each of the Shareholders agrees to vote all shares of
Voting Securities then held by such Shareholder to remove the LCA Director upon
the request at any time of LCA by written notice to the Company and the
Shareholders; provided that LCA shall simultaneously therewith designate a
successor to fill the vacancy on the Board of Directors so created. Each of the
Shareholders agrees to vote all shares of Voting Securities then held by such
Shareholder for the election of such successor designated by LCA as a director
of the Company.
(f) Promptly following the termination of the provisions of
Section 1 of this Agreement, LCA shall use its reasonable efforts to cause the
LCA Director then in office to resign as a member of the Board of Directors of
the Company.
Section 2. Approval of LCA Transaction. Each of the Shareholders agrees
to vote all shares of Voting Securities then held by them in favor of the sale
by the Company to LCA of certain assets of the Company, as set forth in the
Purchase Agreement, (the "LCA Transaction") if the approval of the shareholders
of the Company is required to consummate such sale, provided that the
Shareholders shall not be required to vote their shares of Voting Securities in
favor of the LCA Transaction if, prior to the Closing on the Purchase Agreement,
the Board of Directors of the Company, after receiving a Superior Proposal (as
defined the Purchase Agreement), withdraws or modifies its approval or
recommendation of the Purchase Agreement, approves or recommends such Superior
Proposal, enters into an agreement with respect to such Superior Proposal and/or
terminates the Purchase Agreement, all as provided in Section XII.C of the
Purchase Agreement.
Section 3. Termination. The provisions of Section 1 of this Agreement
shall terminate (i) in the event that the aggregate number of shares of Voting
Securities beneficially owned ("Beneficially Owned") by LCA shall be less than
five (5%) percent of the outstanding shares of Voting Securities, calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and (ii) after an assignment by LCA of its rights under this
Agreement as permitted by Section 4(b), as to any LCA Shareholder (as defined
below) in the event that the number of shares of Voting Securities Beneficially
Owned by such person shall be less than
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five (5%) percent of the outstanding Voting Securities. The remainder of this
Agreement shall cease as to any Shareholder when it ceases to own any Voting
Securities.
Section 4. Miscellaneous.
(a) Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile and by courier service (with
proof of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed: (x) if to the Company, at
the Company's principal business address at 00000 Xxxxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President, (y) or, if to LCA or one of
the Shareholders, at the address of LCA or such shareholder listed in the stock
records of the Company, provided, however, with respect to LCA the address
thereto shall also state "ATTN: PRESIDENT, Special Notice From Universal
Standard Healthcare, Inc. Enclosed) or (z) to such other address as any party
shall specify by written notice so given, and such notice shall be deemed to
have been delivered as of the date so telecommunicated, personally delivered or
if mailed, the date of receipt.
(b) Assignment, Binding Effect; Benefit. Unless expressly
provided in this Agreement, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided that this Agreement shall not
be binding on any person to whom a Shareholder shall transfer any shares of
Voting Securities then held by the Shareholder, unless such person is an
affiliate of the Shareholder (as defined under Rule 12b-2 of the 1934 Act). In
that case, this Agreement shall be binding upon and shall inure to the benefit
of such transferee. No Shareholder may transfer shares of Voting Securities to
an affiliate unless the affiliate agrees in writing to be bound by the terms of
this Agreement. Notwithstanding the foregoing, in the event that (i) the Company
has defaulted on or breached any of its obligations under the Stock Purchase
Agreement or Section 10 of that certain Co-Marketing Agreement dated August 3,
1998 between the Company and LCA or (ii) any of the Company's representations or
warranties under the Stock Purchase Agreement were inaccurate or untrue in any
material respect at the time or times made, LCA shall have the right to assign,
without the consent of the Shareholders, any and all of its rights hereunder to
any Qualified Person to whom LCA shall transfer its shares of Common Stock;
provided that such transferee agrees in writing to be bound by the terms of this
Agreement. A "Qualified Person" is any person who is not in competition with the
Company and who is a bank, financial institution, insurance company, business
and industrial development corporation, registered investment company, entity
regularly engaged in the business of lending or investing money or an entity
constituting an Accredited Investor as defined in Rule 501(a)(1), (2) (3) of the
General Rules and Regulations under the Securities Act of 1933, as amended. In
the event that LCA shall assign any of its rights hereunder to one or more
Qualified Person, then all references to LCA contained herein shall be to LCA
and such Qualified Persons (the "LCA Shareholders") and all actions required or
permitted to be taken by LCA under this Agreement shall be taken upon the
written direction of LCA Shareholders holding at least a majority of all shares
of Common Stock held by the LCA Shareholders.
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(c) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
(d) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without regard
to its rules of conflict of laws.
(f) Headings. Headings of the sections of this Agreement are
for the convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(g) Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa.
(h) Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
(i) Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(j) Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that any party shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity. In connection
with any litigation brought to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs incurred at the trial and appellate levels.
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(k) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(l) Voting Securities. Each of the Shareholders agrees that
this Agreement shall apply to all Voting Securities held by it, including any
Voting Securities acquired after the date of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be delivered on their behalf on the day and year first written
above.
UNIVERSAL STANDARD HEALTHCARE, INC.
By: /s/ Xxxx X. Xxx
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Its: CFO
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LABORATORY CORPORATION OF AMERICA
HOLDINGS
By: Xxxxxxxx X. Xxxxx
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Its: E.V.P.
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ANIXTER INTERNATIONAL, INC.
By: /s/ Xxx Xxxxxxxx
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Its:
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SIGNAL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Its: Sr. Investment Manager
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PORTFOLIO INVESTMENT COMPANY LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: Authorized Signatory
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CLF, LTD
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: Authorized Signatory
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CLF, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: Authorized Signatory
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VOTING AGREEMENT
Exhibit 1
SHARES OF CAPITAL STOCK OWNED BY THE SHAREHOLDERS
Shareholder Shares Owned* Percentage Ownership*
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Anixter 190,000 2.2
CLF LTD 45,710 0.5
CLF, L.P. 173,465 2.0
LCA 1,416,667 16.7
PICL 2,178,223 25.7
Signal 584,899 6.9
* Shares owned and percentage ownership are calculated as of the Closing
Date, assuming that 8,490,200 shares are issued and outstanding
including the 1,416,667 shares to be issued to LCA on the Closing Date
of the Stock Purchase Agreement.
