1
EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 8th, 2001, by and among the parties listed on the signature pages hereto
under the caption "Shareholders" (each, a "Shareholder" and collectively the
"Shareholders"), and Ameris Acquisition, Inc., a corporation organized under the
laws of the State of Tennessee ("Purchaser").
W I T N E S S E T H T H A T :
WHEREAS, as of the date hereof, each Shareholder owns of record and
beneficially, or has the power to vote, the number of shares of common stock,
par value $.01 per share (the "Common Stock"), of Children's Comprehensive
Services, Inc., a corporation incorporated under the laws of the State of
Tennessee (the "Company"), set forth below such Shareholder's signature on the
signature page hereto;
WHEREAS, KIDS Holdings, Inc., a corporation organized under the laws of
the State of Tennessee, Purchaser and the Company have entered into an Agreement
for Statutory Merger, dated as of August __, 2001 (the "Merger Agreement"),
pursuant to which, upon the terms and subject to the conditions thereof,
Purchaser will be merged with and into the Company (the "Merger");
WHEREAS, as a condition to the willingness of Purchaser to enter into
the Merger Agreement, Purchaser has requested each Shareholder to agree, and in
order to induce Purchaser to enter into the Merger Agreement, each Shareholder
is willing to agree, to vote in favor of the adoption and approval of the Merger
Agreement, the Merger and the transactions contemplated thereby, upon the terms
and subject to the conditions set forth herein; and
WHEREAS, capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Merger Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto agree as follows:
SECTION 1. VOTING OF SHARES. Until the termination of this
Agreement in accordance with the terms hereof, each Shareholder hereby agrees
that, at the CCS Shareholder Meeting or any other meeting of Shareholders at
which the Merger Agreement (as it may be amended by any amendment thereto) is
submitted for consideration and vote, however called, and in any action by
written consent of the Company Shareholders at which the Merger Agreement (as it
may be amended by any amendment thereto) is submitted for consideration and
vote, each Shareholder will vote all of such Shareholder's Shares (as defined
below) (a) in favor of the approval of the Merger Agreement (as it may be
amended by any amendment thereto), the Merger and the transactions contemplated
thereby, and (b) in favor of any other matter necessary to consummate the
transactions contemplated by the Merger Agreement that is voted upon by the
Company Shareholders. Such agreement to vote shall also apply to any adjournment
or adjournments of the CCS Shareholder Meeting. As used herein, the term
"Shares" shall mean, with respect to each Shareholder, the shares of the
Company's capital stock set forth opposite the name of such Shareholder on
Exhibit A attached hereto and any shares of the Company's capital stock acquired
by the Shareholder prior to the termination of this Agreement.
SECTION 2. PROXY. Each Shareholder, by this Agreement, does
hereby constitute and appoint Purchaser, or any nominee of Purchaser, with full
power of substitution, as such Shareholder's irrevocable proxy and
attorney-in-fact to vote the Shares in the manner, and only upon the matters,
described in
1
2
Section 1 in the event such Shareholder fails to comply with its obligations
under such section. Each Shareholder intends this proxy to be irrevocable and
coupled with an interest and will take such further action and execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by it with respect to its Shares.
The proxy granted pursuant to this Section 2 shall automatically terminate upon
the termination of this Agreement.
SECTION 3. CONDITIONS OF TRANSFER. Prior to the termination of
this Agreement in accordance with the terms hereof, each Shareholder shall not,
directly or indirectly, (a) sell, assign, transfer (including by operation of
law), encumber or otherwise dispose of any of the Shares, (b) deposit any of the
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement, (c) enter into any contract
or option with respect to the direct or indirect sale, encumbrance, assignment,
transfer (including by operation of law) or other disposition of any Shares, or
(d) take any action to impair the ability of the Shares to be voted in the
manner described in Section 1.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER.
Each Shareholder hereby represents and warrants severally and not jointly to
Purchaser, with respect to such Shareholder and such Shareholder's ownership of
Shares as follows:
(a) Such Shareholder has all legal capacity, power,
authority and right (contractual or otherwise) to execute and deliver
this Agreement, and this Agreement has been duly executed and delivered
by such Shareholder;
(b) This Agreement constitutes the valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except insofar as such enforceability may be
limited by applicable bankruptcy or other laws affecting creditors'
rights generally;
(c) The execution, delivery and performance by the
Shareholder of this Agreement will not conflict with or violate any
order, writ, injunction or decree applicable to such Shareholder, or
conflict with or result in any breach under any agreement to which such
Shareholder is a party, which breach would adversely affect such
Shareholder's ability to perform any of its obligations under this
Agreement;
(d) Such Shareholder is the record or beneficial owner of
the Shares listed as owned by such Shareholder on Exhibit A and such
Shareholder has the full right and power to vote such Shares in
accordance with this Agreement; and
(e) The Shares set forth opposite the name of such
Shareholder on Exhibit A attached hereto are the only Shares owned
beneficially or of record by such Shareholder or over which it
exercises voting control.
SECTION 5. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the Closing, (b) the termination of the Merger
Agreement in accordance with the terms thereof, and (c) the approval or
recommendation by the Company's Board of a Superior Proposal to the Company's
Shareholders; provided, that the provisions of Sections 6, 8, 12 and 13 of this
Agreement shall survive any termination of this Agreement; provided, further,
that no such termination shall relieve any party of liability for a breach
hereof prior to termination.
SECTION 6. NOTICES. All notices, communications and deliveries
required or permitted hereunder shall be made in writing signed by the party
making the same, shall specify the
2
3
Section hereunder pursuant to which the same is given or being made, and shall
be delivered personally or sent by telecopy transmission (provided a
confirmation copy is sent via an internationally recognized overnight delivery
service), registered or certified mail, or by any internationally recognized
overnight delivery service (with postage and other fees prepaid) as follows:
To Purchaser: Ameris Acquisition, LLC
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a required, simultaneous Boult, Cummings, Xxxxxxx & Xxxxx, PLC
copy transmitted in like 000 Xxxxx Xxxxxx, Xxxxx 0000
manner to: Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
To the Shareholders: To each Shareholder at the respective
address set forth in Exhibit A,
attached hereto
with a required, simultaneous Bass, Xxxxx & Xxxx PLC
copy transmitted in like 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
manner to: Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
or to such other representative or at such other address of a party of which a
party hereto may hereafter give notice to the other parties in writing. Notices
shall be effective upon the date of delivery or refusal of delivery, if given by
personal delivery, registered, certified or express mail or courier delivery, or
upon transmission by facsimile transmission, if the addressee (a) confirms by
telephone or electronic means that the facsimile transmission in question was
received in legible form or (b) responds to the communication in the facsimile
transmission in question without indicating that it was not received in legible
form.
SECTION 7. ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement among the parties hereto
relating to the subject matter hereof and supersede any prior understandings,
agreements, or representations between or among the parties, written or oral, to
the extent they related in any way to the subject matter hereof. Notwithstanding
the foregoing, this Agreement shall not supersede any other written agreement
between or among the parties entered into on or after the date hereof.
SECTION 8. ENFORCEMENT OF AGREEMENT. The parties acknowledge and
agree that each other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms and that any breach of this Agreement by any party could not be adequately
compensated by monetary damages. Accordingly, the parties agree that, in
addition to any other right or remedy to which a party may be entitled, at law
or in equity, it shall be entitled to enforce any provision of this Agreement by
a decree of specific performance and to temporary, preliminary and permanent
injunctive relief to prevent breaches or threatened breaches of the provisions
of this Agreement, without posting any bond or other undertaking.
3
4
SECTION 9. SUCCESSION AND ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and their
respective successors and permitted assigns. No party may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other party.
SECTION 10. NUMBER; GENDER. Whenever the context so requires, the
singular number shall include the plural and the plural shall include the
singular, and the gender of any pronoun shall include the other gender.
SECTION 11. CAPTIONS. The Section, Subsection and other titles
and captions contained in this Agreement are inserted herein only as a matter of
convenience of reference, shall not be deemed part of this Agreement and shall
in no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof. Unless otherwise specified to the contrary, all
references to Sections are references to Sections of this Agreement.
SECTION 12. CONTROLLING LAW; INTEGRATION; AMENDMENT; CERTAIN
CONSTRUCTION RULES. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Tennessee without
reference to Tennessee choice of law rules. This Agreement may not be amended,
modified or supplemented except by a written agreement of the parties. No
provision of this Agreement shall be construed against or interpreted to the
disadvantage of any party hereto by any governmental body by reason of such
party's or such person's counsel having or being deemed to have structured or
drafted such provision.
SECTION 13. SEVERABILITY. Any provision hereof which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction.
SECTION 14. COUNTERPARTS; EXECUTION AND DELIVERY OF SIGNATURE
PAGES. This Agreement may be executed in multiple counterparts and by the
parties hereto on separate counterparts which, taken together, shall constitute
one binding agreement. This Agreement shall also be deemed duly executed,
delivered and in full force and effect if (a) each of the parties hereto has
properly executed a signature page to this Agreement, designated as such (a
"Signature Page") on which such party's signature is called for, and (b) each
Shareholder has transmitted such executed Signature Page by facsimile
transmission or courier service to Purchaser and Purchaser has transmitted such
executed Signature Page by facsimile transmission or courier service to each
Shareholder in accordance with the information set forth in Exhibit A. Each
party hereto undertakes that, in the event such party executes this Agreement by
means of executing and transmitting by facsimile transmission a Signature Page,
such party shall forthwith after such execution send by courier service to the
other party a copy of the Signature Page hand-signed by such party, provided,
however, that any failure to dispatch such Signature Page by overnight courier
as aforesaid shall not affect the validity and enforceability of this Agreement.
SECTION 15. NO THIRD PARTY BENEFICIARY. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person other than the parties hereto and their successors or permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, or result in any person's being deemed a third party beneficiary
of this Agreement.
SECTION 16. WAIVER. Any agreement on the part of a party hereto
to any extension or waiver of any obligation of any other party hereunder shall
be valid only if set forth in an instrument in writing signed on behalf of such
party. A waiver by one party of the performance of any covenant, agreement,
obligation, condition, representation or warranty shall not be construed as a
waiver of any other covenant,
4
5
agreement, obligation, condition, representation or warranty or as a waiver by
any other party. A waiver by any party of the performance of any act shall not
constitute a waiver of the performance of any other act or an identical act
required to be performed at a later time.
SECTION 17. ACTION IN SHAREHOLDER CAPACITY ONLY. No Shareholder
makes any agreement or understanding herein as a director or officer of the
Company; rather, each Shareholder signs solely in such Shareholder's capacity as
a record holder and/or beneficial owner of such Shareholder's Shares, and
nothing herein shall limit or affect any actions taken in such Shareholder's
capacity as an officer or director of the Company, including, without
limitation, any action taken in such Shareholder's capacity as a director or
officer of the Company consistent with the provisions of Section 9.1 of the
Merger Agreement.
[SIGNATURES COMMENCE ON THE NEXT PAGE]
5
6
SIGNATURE PAGE TO THE VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be signed as of the date and year first above written.
AMERIS ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------------------
Title: President
-----------------------------------------------
SHAREHOLDERS:
NAME: XXXXXXX X XXXXXXX
/s/ Xxxxxxx X Xxxxxxx
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
43,050
-----------------------------------------------------
NAME: XXX X. XXXXXXXX
/s/ Xxx X. Xxxxxxxx
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
324,579
-----------------------------------------------------
NAME: XXXXXX X. XXXXXX, PH.D.
/s/ Xxxxxx X. Xxxxxx, Ph.D.
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
304,579
-----------------------------------------------------
6
7
NAME: XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
0
-----------------------------------------------------
NAME: XXXXXX X. FERNANDEZ, ED.D.
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
3,470
-----------------------------------------------------
NAME: XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------------------
Shares of common stock of Children's Comprehensive
Services, Inc. held of record as of the date hereof:
31,904
-----------------------------------------------------
7
8
EXHIBIT A
TO VOTING AGREEMENT
--------------------------------------------------------------------------------------
NAME OF SHAREHOLDER MAILING ADDRESS NUMBER OF SHARES
--------------------------------------------------------------------------------------
Xxxxxxx X Xxxxxxx 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 43,050
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxx X. Xxxxxxxx 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 324,579
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, Ph.D. 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 000,000
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 0
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxx X. Fernandez, Ed.D. 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 3,470
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 0000 Xxxx Xxx Xxxxxx, Xxxxx 000 00,000
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
8
