VOTING AND TENDER AGREEMENT
THIS VOTING AND TENDER AGREEMENT (this "Agreement"), dated as of the
1st day of August, 1997, by and between XXXXXX X. XXXXXX (the "Stockholder") and
INTEGRATED HEALTH SERVICES, INC., a Delaware Corporation ("Parent") and IHS
ACQUISITION XXVI, INC. ("Merger Subsidiary").
WHEREAS, Community Care of America, Inc., a Delaware Corporation (the
"Company"), Parent and Merger Subsidiary are entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement") which provides
for, among other things, an offer to purchase by Merger Subsidiary all of the
outstanding shares of the Company ("Company Common Stock"), at a purchase price
of Four and 0/100 ($4.00) Dollars per share, net to the seller in cash, without
interest thereon, followed by the merger of Merger Subsidiary with the Company
(the "Merger"); and
WHEREAS, as of the date hereof, the Stockholder owns, of record and
beneficially, 1,600,893 shares of Company Common Stock; and
WHEREAS, as a condition to the willingness of Parent and Merger
Subsidiary to enter into the Merger Agreement, each of Parent and Merger
Subsidiary has required that the Stockholder agree, and in order to induce
Parent and Merger Subsidiary to enter into the Merger Agreement, the Stockholder
has agreed, to enter into this Agreement with respect to (a) all shares of
Company Common Stock now owned, beneficially or otherwise, and which may
hereafter be acquired by the Stockholder (the "Shares") and (b) certain other
matters as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
Section 1.1 Tender Agreement. (a) The Stockholder shall, within five
(5) business days after the commencement of the Offer (as defined in the Merger
Agreement), tender, or cause to be tendered, for sale to Merger Subsidiary,
pursuant to the terms of the Offer, all of the Stockholder's Shares then owned
of record or beneficially by the Stockholder; and (b) except as provided in
clause (a) above, during the time this Agreement is in effect, the Stockholder
shall not otherwise sell, give, dispose of (whether by operation of law or by
agreement or otherwise) or tender any Shares or any right, title or interest
therein or thereto.
Section 1.2 Voting Agreement. The Stockholder hereby agrees that during
the time this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of the
Company, the Stockholder shall vote the Shares, or cause the Shares to be voted:
(a) in favor of the
Merger pursuant to the Merger Agreement; and (b) against any proposal for any
recapitalization, merger, sale of assets or other business combination between
the Company and any person or entity (other than Merger Subsidiary or Parent) or
any other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which could prevent any of the conditions to the
Company's obligations under the Merger Agreement from being fulfilled. If
requested by Parent, the Stockholder will grant Parent an irrevocable proxy to
vote the Shares in a manner consistent with this Section 1.2 for so long as this
Agreement is in effect. The Stockholder will not join in any suit or proceeding
or participate in any action that is inconsistent with, or designed or intended
to have the effect of discouraging, the completion of the Merger pursuant to the
terms of the Merger Agreement.
Section 1.3 General Release. As an inducement for Parent, Merger
Subsidiary and the Company to enter into the Merger Agreement: (a) upon the
Merger Subsidiary obtaining control of the Company, the Stockholder will remise,
release and forever discharge the Company, and its respective officers,
directors, shareholders, employees, agents, successors and assigns, from any and
all debts, obligations, suits, actions, causes of action, claims, demands, in
law or in equity, which the Stockholder ever had or now has, for, upon, or by
reason of any matter, cause or thing whatsoever, however arising; and (b) upon
the Merger Subsidiary obtaining control of the Company, the Company will remise,
release and forever discharge Stockholder and its partners, and their respective
officers, directors, shareholders, employees, agents, successors and assigns,
from any and all debts, obligations, suits, actions, claims, demands, in law or
in equity, which they ever had or now have, for, upon, or by reason of any
matter, cause or thing whatsoever, however arising. In the event any action is
instituted, the parties hereto agree to cause its immediate dismissal with
prejudice.
Section 1.4 Stockholder Capacity. The Stockholder makes this Agreement
solely in its capacity as the record and beneficial owner of the Shares. Nothing
in this Agreement shall prohibit the Stockholder or any of its officers,
directors, employees, representatives and agents from taking, or omitting to
take, any action as a director, employee, representative or agent of the Company
permitted to be taken or omitted under the Merger Agreement.
Section 1.5 Acknowledgment. The Stockholder acknowledges receipt and
review of a copy of the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent as follows:
Section 2.1 Authority Relative to This Agreement. The Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its
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obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly and validly authorized by the Stockholder and no other proceedings on
the part of the Stockholder are necessary to authorize this Agreement or to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Stockholder and, assuming the due authorization, execution
and delivery by Parent and Merger Subsidiary, constitutes a legal, valid and
binding obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or by general principles governing the availability of
equitable remedies.
Section 2.2 No Conflict. (a) The execution and delivery of this
Agreement by the Stockholder do not, and the performance of this Agreement by
the Stockholder shall not: (i) conflict with or violate the organizational
documents of the Stockholder; (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Stockholder or by which
the Shares are bound; or (iii) result in any breach of or constitute a default
(or an event that with notice, or lapse of time, or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the Shares pursuant to any note, bond, mortgage, other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or the Shares are bound or affected, except in case of clauses (ii)
and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement; and (b) the execution and delivery of
this Agreement by the Stockholder do not, and the performance of this Agreement
by the Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with, or notification to, any court or arbitrator or any
governmental body, agency or official, except for applicable requirements, if
any of the Securities Exchange Act of 1934, as amended, and except where the
failure to obtain such consents, approvals authorizations or permits, or to make
such filings or notifications, would not prevent or delay the performance by the
Stockholder of its obligations under this Agreement.
Section 2.3 Title to the Shares. As of the date hereof, the Stockholder
is the record and/or beneficial owner of 1,600,893 shares of Company Common
Stock. Such Shares are all the securities of the Company owned, either of record
or beneficially, by the Stockholder and the Stockholder owns no other rights or
interests exercisable for or convertible into any securities of the Company. The
Shares are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on the
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever. The Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective with respect to the Shares.
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Section 2.4 No Fees or Commissions. No broker, financial advisor or
other intermediary is entitled to any fee or other commission in connection with
the transaction contemplated by this Agreement based on an arrangement made by
or on behalf of the Stockholder.
ARTICLE III
COVENANTS OF THE STOCKHOLDER
Section 3.1 No Inconsistent Agreement. The Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder shall not enter into any agreement or grant a proxy
or power of attorney with respect to the Shares which is inconsistent with this
Agreement.
Section 3.2 No Encumbrances. The Stockholder hereby covenants and
agrees that the Stockholder shall not by any action or omission cause any
security interests, liens, claims, pledges, charges, encumbrances, options,
rights of first refusals, agreements or limitations on the Stockholder's voting
rights, to attach to the Shares to be tendered to the Merger Subsidiary pursuant
to Section 1.1 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARTIES
Each of the Stockholder, Parent and Merger Subsidiary has full right, power
and authority to enter into and perform this Agreement and this Agreement has
been duly authorized, executed and delivered by each of the Stockholder, Parent
and Merger Subsidiary and is a valid and binding agreement of each of the
Stockholder, Parent and Merger Subsidiary enforceable against each of the
Stockholder, Parent and Merger Subsidiary in accordance with its terms.
ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall terminate upon the
termination of the Merger Agreement or if the Shares shall have not theretofore
been sold pursuant to the Offer, on November 30, 1997, whichever is earlier.
Section 5.2 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
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Section 5.3 Entire Agreement. This Agreement constitutes the entire
agreement between Parent and the Stockholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Parent and the Stockholder with respect to the subject matter
hereof.
Section 5.4 Amendment. This Agreement may not be amended, except by an
instrument in writing signed by the parties hereto.
Section 5.5 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
regardless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated.
Section 5.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware regardless of the
laws that might otherwise govern under applicable principles of conflicts of
law.
Section 5.7 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Stockholder, Parent and Merger Subsidiary have
caused this Agreement to be duly executed as the date and year first above
written.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
XXXXXX X. XXXXXX
INTEGRATED HEALTH SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President -
Development
IHS ACQUISITION XXVI, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President -
Development
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