VOTING AGREEMENT
Exhibit 2
VOTING AGREEMENT, dated as of December 5, 2005 (this “Agreement”), among RGGPLS, LLC,
a Delaware limited liability company (“RGGPLS”), and Xxxxx X. Xxxxxx, M.D. (the
“Specified Stockholder”).
PRELIMINARY STATEMENTS
WHEREAS, RGGPLS and the Specified Stockholder desire to make certain covenants and agreements
set forth herein with respect to the voting of the Shares (as defined below) held by the Specified
Stockholder in order for NationsHealth, Inc. (the “Company”), a Delaware corporation, to
maintain its status as a Controlled Company status under the Nasdaq Marketplace Rules and certain
other matters; and
WHEREAS, RGGPLS and the Specified Stockholder desire to agree to act together for the purpose
of voting the Shares.
NOW THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definition of Certain Terms Used Herein. As used herein, the following
terms shall have meanings specified below:
“Affiliate” shall mean, with respect to any person, any other person that directly or
indirectly through one or more intermediaries controls or is controlled by or is under common
control with such person. For the purposes of this definition, “control” when used with respect to
any particular person, means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Exchange” shall mean Nasdaq, the NYSE, the AMEX or any other stock
exchange, as the case may be, if the Common Stock is then traded on Nasdaq, the NYSE, the AMEX or
such other stock exchange, and shall mean none of Nasdaq, the NYSE, the AMEX or any other stock
exchange if the Common Stock is not then traded on Nasdaq, the NYSE, the AMEX or any other stock
exchange.
“beneficial owner” shall have the meaning assigned to such term in Rule 13d-3 under
the Exchange Act.
“Board of Directors” shall mean the Board of Directors of the Company.
“Common Stock” shall mean the common stock, par value $0.0001 per share, of the
Company.
“directors” shall mean members of the Board of Directors.
“DGCL” shall mean the Delaware General Corporation Law, as amended.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
“Other Matter” shall mean any matter (including the election of directors to the Board
of Directors) brought before a Stockholders Meeting and proposed or sponsored by a person other
than RGGPLS, to be acted upon by the stockholders of the Company.
“RGGPLS Matter” shall mean any matter brought before a Stockholders Meeting and
proposed or sponsored by RGGPLS to be acted upon by the stockholders of the Company at such
Stockholders Meeting.
“RGGPLS Nominee” shall mean any person nominated by RGGPLS for election as a director
to the Board of Directors.
“SEC” shall mean the United States Securities and Exchange Commission or any other
United States federal agency at the time administering the Securities Act or the Exchange Act, as
applicable, whichever is the relevant statute.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
“Shares” shall mean One Million Three Hundred Fifty Thousand (1,350,000) shares of the
Company’s common stock, par value $0.0001 per share.
“Stockholders” shall mean both of RGGPLS and the Specified Stockholder, and
“Stockholder” shall mean either of RGGPLS or the Specified Stockholder.
“Stockholders Meeting” shall mean (i) any annual or special meeting of the
stockholders of the Company or (ii) any action by written consent of the stockholders of the
Company.
“Triggering Event” shall mean, if the Common Stock is then listed or quoted on an
Applicable Exchange, the failure of the Company to constitute a “Controlled Company” for purposes
of the rules and regulations of the Applicable Exchange (it being understood and agreed that if the
Common Stock is not then listed or quoted on an Applicable Exchange, then a Triggering Event shall
not be capable of occurring).
SECTION 1.02 Usage. The definitions in this Article I shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. All references in this
Agreement to Articles, Sections and Schedules shall be deemed to be references to Articles,
Sections and Schedules of or to this Agreement, unless the context shall otherwise require. The
words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, regardless of whether such phrase so appears.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Representations and Warranties of the Stockholders. Each Stockholder
hereby represents and warrants to each other party as follows: (i) the execution, delivery and
performance by such Stockholder of its obligations under this Agreement and the consummation by it
of the transactions contemplated hereby have been duly authorized by all necessary corporate action
on the part of such Stockholder; and (ii) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against it in accordance with its terms.
ARTICLE III
VOTING
SECTION 3.01 Agreement to Vote. So long as the Specified Stockholder is the
beneficial owner of the Shares, at each and every Stockholders Meeting, the Specified Stockholder
hereby agrees (x) if any annual or special meeting of the stockholders of the Company is held, to
appear at such meeting or otherwise cause its Shares to be counted as present thereat for purposes
of establishing a quorum, and (y) to vote or to act by written consent with respect to (or cause to
be voted or acted upon by written consent), (i) all Shares for which the Specified Stockholder is
the record holder or beneficial owner at the time of such vote or action by written consent and
(ii) all Shares as to which the Specified Stockholder at the time of such vote or action by written
consent has voting control, in each case:
| (A) | In favor of: |
(i) All of the RGGPLS Nominees (if directors are to be elected at such
Stockholders Meeting);
(ii) Any RGGPLS Matter; and/or
(iii) Any Other Matter, only if RGGPLS directs (by oral or written notice) the
Specified Stockholder to vote in favor of such Other Matter; and
| (B) | Against: |
(i) The election of any person or persons nominated in opposition to the RGGPLS
Nominees (if directors are to be elected at such Stockholders Meeting);
(ii) Any matter brought before such Stockholders Meeting to be acted upon by
the stockholders of the Company that is in opposition to an RGGPLS Matter; and/or
(iii) Any Other Matter, only if RGGPLS directs (by oral or written notice) the
Specified Stockholder to vote against such Other Matter.
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SECTION 3.02 Grant of Irrevocable Proxy. The Specified Stockholder hereby irrevocably
grants to and appoints RGGPLS (and any officer of RGGPLS or each of them individually) as the
Specified Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in
the name, place and stead of the Specified Stockholder, to vote, act by written consent or grant a
consent, proxy or approval in respect of such Shares with respect to such vote or action by written
consent exclusively as agreed by the Specified Stockholder in this Agreement, in the event that the
Specified Stockholder shall fail at any time to vote or act by written consent with respect to any
of the Specified Stockholder’s Shares as agreed by the Specified Stockholder in this Agreement. The
Specified Stockholder hereby affirms that any such irrevocable proxy set forth in this Section 3.02
is given to secure the performance of obligations of the Specified Stockholder under this
Agreement. The Specified Stockholder hereby further affirms that any such proxy hereby granted
shall be irrevocable and shall be deemed coupled with an interest, in accordance with Section
212(e) of the DGCL. The Specified Stockholder agrees to execute and deliver any further powers of
attorney, consents, proxies or other agreements necessary or appropriate to give effect to this
Section 3.02.
SECTION 3.03 Certain Actions. Each Stockholder agrees that it will, and will cause
its subsidiaries and Affiliates to, take all action as a stockholder of the Company or as is
otherwise within its control as are necessary to give effect to the provisions of this Agreement
and to perform, pay and satisfy all of their respective obligations and liabilities hereunder as
and when due.
ARTICLE IV
COVENANTS
SECTION 4.01 Status of the Company. At all times prior to the occurrence of a
Triggering Event and so long as the Common Stock is listed or quoted on an Applicable Exchange, the
Specified Stockholder shall publicly take the position that the Company is a “Controlled
Company” within the rules and regulations of the Applicable Exchange and cause the disclosure
in all statements, reports, schedules or other documents required to be filed by the Specified
Stockholder with the SEC pursuant to the Exchange Act to state that the Company is a “Controlled
Company” within the rules and regulations of the Applicable Exchange and the basis for such
determination. Without limiting the generality of the foregoing, if required by the rules and
regulations of the Applicable Exchange in order for the Company to constitute a “Controlled
Company” within the rules and regulations of such Applicable Exchange, the Specified Stockholder
agrees to file a Statement on Schedule 13D with the SEC on a timely basis stating that RGGPLS and
the Specified Stockholder constitute a “group” within the meaning of Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the Shares if such filing
and statement are required or allowed under the applicable rules of the SEC.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01 Specific Performance. The parties hereto hereby declare that irreparable
damage would occur as a result of the failure of any party hereto to perform any of its obligations
under this Agreement in accordance with the specific terms hereof. Therefore, all parties hereto
shall have the right to specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to enforce the
provisions hereof, any person against whom such action or proceeding is brought hereby waives the
claim or defense therein that such party has an adequate remedy at law. The right to specific
performance should be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
SECTION 5.02 Conflicts and Inconsistent Agreements. Neither the Company nor any
Stockholder shall enter into any agreement inconsistent with the terms of this Agreement.
SECTION 5.03 Complete Agreement. This Agreement constitutes the entire agreement and
understanding among the parties hereto with respect to the matters referred to herein and
supersedes all prior agreements and understandings among the parties hereto with respect to the
matters referred to herein.
SECTION 5.04 Amendment. This Agreement may not be amended, modified or supplemented,
and no waivers of or consents to departures from the provisions hereof may be given, unless
consented to in writing by RGGPLS and the Specified Stockholder.
SECTION 5.05 Successors; Assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, directly or indirectly, including by
operation of law, by any party hereto without the prior written consent of the other parties
hereto. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that
the Specified Stockholder shall be permitted to pledge its shares as collateral in connection with
a loan or financing. Notwithstanding the foregoing, the obligations of the Specified Stockholder
under this Agreement and the rights of RGGPLS to vote the Shares under Section 3.01 shall no longer
apply and this Agreement shall be deemed terminated with respect to any Shares which are sold or
otherwise disposed of (including any transfer resulting from sale or foreclosure) by the Specified
Stockholder to a third party that is not an Affiliate of the Specified Stockholder, in compliance
with the terms of this Agreement.
SECTION 5.06 Attorney Fees. A party in breach of this Agreement shall, on demand,
indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses,
including legal fees and expenses, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement. The payment of such expenses is in addition to any
other relief to which such other party may be entitled.
SECTION 5.07 Notices. All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent by
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prepaid telex, cable or telecopy or sent, postage prepaid, by registered, certified or express
mail or reputable overnight courier service and shall be deemed given when so delivered by hand,
telexed, cabled or telecopied, or if mailed, three days after mailing (one business day in the case
of express mail or overnight courier service), as follows (or at such other address, telephone
number and fax number as a party shall notify each other party hereto):
| (i) | if to RGGPLS: | ||
| RGGPLS, LLC 00000 X.X. 0xx Xx., Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxx Xxxxx and Xxxxx Xxxxx Telecopy No.: (000) 000-0000 |
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| with a copy to: | |||
| XxXxxxxxx, Will & Xxxxx 000 X. Xxxxxxxx Xxxx., Xxxxx 0000 Xxxxx, XX 00000 Attention: Xxx X. Xxxxxxx, Esq. Telecopy No.: (000) 000-0000 |
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| (ii) | if to the Specified Stockholder: | ||
| Xxxxx X. Xxxxxx, M.D. 00000 Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx, XX 00000 Telecopy No.: (954) [______] |
SECTION 5.08 Interpretation. The headings contained in this Agreement and in any
Schedule hereto are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized
terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in
this Agreement.
SECTION 5.09 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the parties and delivered
to the other party.
SECTION 5.10 Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision to any other persons
or circumstance.
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SECTION 5.11 Governing Law. This Agreement and all actions contemplated hereby shall
be governed by and construed and enforced in accordance with the laws of the State of Delaware
(without regard to conflict of laws principles).
SECTION 5.12 Submission to Jurisdiction. Any and all suits, legal actions or
proceedings arising out of this Agreement shall be brought in the Superior Court or the Court of
Chancery of the State of Delaware or the United States District Court for the District of Delaware
or in the Supreme Court of the State of New York, New York County or the United States District
Court for the Southern District of New York and each party hereby submits to and accepts the
exclusive jurisdiction of such courts for the purpose of such suits, legal actions or proceedings.
In any such suit, legal action or proceeding, each party waives personal service of any summons,
compliant or other process and agrees that service thereof may be made by certified or registered
mail directed to it at its address set forth in the books and records of the company. To the
fullest extent permitted by law, each party hereto hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue or any such suit, legal action or proceeding in
any such court and hereby further waives any claim that any suit, legal action or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 5.13 Waiver of Jury Trial. Each party hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection with this Agreement. Each party (i)
certifies that no representative of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other parties have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 5.14.
SECTION 5.14 No Waiver of Rights. No failure or delay on the part of any party in the
exercise of any power or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude other or further exercise thereof or of any
other right or power. The waiver by any party or parties hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any other or subsequent breach
hereunder. All rights and remedies existing under this Agreement are cumulative and are not
exclusive of any rights or remedies otherwise available.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
| RGGPLS, LLC |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Treasurer | |||
| SPECIFIED STOCKHOLDER: XXXXX X. XXXXXX, M.D. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
