EXHIBIT 9.1
FORM OF STOCKHOLDERS' VOTING AGREEMENT
THIS STOCKHOLDERS' VOTING AGREEMENT (the "Agreement" and any Stockholders'
Voting Agreement in substantially identical form to this Agreement between
Xxxxxx and a stockholder of America's Doctor, Inc. shall be referred to herein
at the "Voting Agreement(s)") made on this 30th day of June, 1998 (the
"Effective Date") by and between Xxxxx X. Xxxxxx, M.D. ("Xxxxxx"), whose address
is 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000, phone number: (410)
000-0000, and the undersigned party (the "Stockholder").
RECITALS
WHEREAS, the Stockholder owns shares of outstanding common stock (the
"Stock") of America's Doctor, Inc., a Delaware corporation, whose principal
place of business is 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000
(the "Corporation");
WHEREAS, in consideration for the Stock issued to the Stockholder, the
Stockholder has agreed to allow Xxxxxx to vote all the Stockholder's Stock in
any manner and for any purpose in Xxxxxx'x sole discretion, for a period of five
(5) years from the Effective Date of this Agreement;
WHEREAS, the Stockholder desires to enter into this Agreement, in
accordance with Section 218(c) of the Delaware General Corporation Law, and that
this Agreement will be specifically enforceable against the Stockholder.
NOW THEREFORE, in consideration of the issuance of the Stock to the
Stockholder at a discount, the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Stockholder agrees as follows:
1. Recitals. The Recitals are incorporated as if fully set forth herein.
2. Voting.
(a) Xxxxxx shall have the exclusive right to act in respect of and
to vote the Stock held by the Stockholder or to give written consent in lieu of
voting thereon, subject to any limitation on the right to vote contained in the
Articles of Incorporation of the Corporation and subject to the termination
provisions contained in Section 8 herein, at any and all meetings of the
stockholders of the Corporation, for whatsoever purpose called or held, and in
any and all proceedings whether at meetings of the stockholders of the
Corporation or otherwise, wherein the vote or written consent of the Stockholder
of the Corporation may be required, authorized or permitted by law. Until the
expiration of the term of this Agreement, Xxxxxx shall, in his sole and
uncontrolled discretion, in respect of any and all of the Stock held by the
Stockholder, possess and be entitled to exercise the right to vote thereon for
every purpose, to waive the Stockholder's privilege in respect thereof, and to
consent to any lawful corporate act of the Corporation.
(b) Xxxxxx is specifically authorized by way of example, without
limiting his rights hereunder, to vote the Stockholder's Stock for, or to
consent in respect thereof to: any amendment to the Articles of Incorporation or
By-laws of the Corporation whether or not such amendment adversely affects the
rights of the Stockholder; or any increase or reduction of the stock of the
Corporation; or any agreement of consolidation, merger, share exchange or the
sale or other disposition of all, substantially all, or any part of the
property, assets and franchises of the Corporation and the granting,
ratification or confirmation of any option or options therefore (whether
executed before or after the execution of this Agreement, and whether or not
such option or options extend(s) beyond the term of this Agreement), or the
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, and the judgment of Xxxxxx as to the adequacy of the consideration
thereby to be received by the Corporation and the Stockholder (provided that the
Stockholder and each holder of a Voting Agreement of each class is treated
uniformly, share for share) shall be conclusive and binding upon the Stockholder
and all persons claiming through or under him/her; or the issuance of stock or
warrants or other instruments evidencing rights or options to subscribe for, or
otherwise acquire such shares; or the redemption by the Corporation of its own
stock or the purchase or other acquisition by the Corporation of its own stock;
or a purchase by the Corporation, other than in the ordinary course of business,
of property and assets; or the making of any loans or advances by the
Corporation either to employees or suppliers of the Corporation.
(c) Xxxxxx may, directly or indirectly, transact any lawful business
with the Corporation, notwithstanding any term or provision of this Agreement.
Xxxxxx may also be a stockholder of the Corporation, may serve as director,
chairman of the Board of Directors, President and/or any compensated officer of
the Corporation and may vote for himself as such. Xxxxxx shall not be required
to give any form of bond or other insurance hereunder.
(d) At any meeting of the stockholders of the Corporation, Xxxxxx
may vote the Stock or act in person or by proxy, and Xxxxxx may give a power of
attorney to any other person to sign for Xxxxxx in case of action taken in
writing without a meeting.
(e) In voting the Stock, Xxxxxx shall exercise his best judgment to
the end that the business and affairs of the Corporation shall be properly
managed, but Xxxxxx does not assume any responsibility or liability in respect
of such management, or in respect of any action taken by Xxxxxx, or taken in
pursuance of his consent thereto, or in pursuance of his vote so cast, and
Xxxxxx shall not incur any responsibility or liability under this Agreement, or
as a stockholder, or otherwise, by reason of any error of fact or law and/or of
any matter or thing done or omitted to be done, except for any act with respect
to which it has been judicially determined that Xxxxxx has engaged in willful
misconduct.
(f) Xxxxxx shall not be entitled to any compensation for his
services in accordance with this Agreement, unless such compensation is
authorized by a majority vote of the holders of Voting Agreements (Xxxxxx
abstaining from voting on behalf of himself or any other stockholder from such
majority vote); but it is expressly agreed that Xxxxxx shall be
2
reimbursed for, and indemnified against and saved harmless from, any and all
liabilities, losses, costs, damages, expenses and liabilities (including
reasonable attorneys' fees) incurred by him arising out of or in connection with
this Agreement or any action taken in accordance with the terms of this
Agreement; and Xxxxxx shall receive such indemnity from the Corporation. The
Corporation shall be deemed to be fully entitled, by action of the Board of
Directors of the Corporation, to assume or provide otherwise for payment of any
and all losses, costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by Xxxxxx arising out of or in connection with this
Agreement or the exercise of his rights hereunder. Xxxxxx shall be entitled from
time to time to be reimbursed by the Corporation for any such liabilities,
costs, damages and expenses.
(g) Xxxxxx shall have no duty to hold meetings with the Stockholder
or holders of Voting Agreements, but he shall be entitled to do so if he wishes.
If Xxxxxx wishes to hold a meeting with the holders of Voting Agreements, Xxxxxx
shall provide written notice seven (7) calender days prior to such meeting, and
such notice shall state the place, day and hour and the purpose, if any, of such
meeting, but any holder of a Voting Agreement may waive such notice in writing,
either before or after the holding of the meeting. No notice of any adjourned
meeting need be given. Every such meeting shall be held at the main office of
the Corporation, located at: 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX
00000, unless otherwise designated by Xxxxxx and approved in writing by
two-thirds of the holders of Voting Agreements to the holding thereof at another
place. The failure to hold meetings shall not in any manner or degree impair or
reduce the authority of Xxxxxx hereunder.
3. Inscription on Stock Certificates. Simultaneously with the execution of
this Agreement, the Stockholder will inscribe on the certificate(s) representing
the shares of the Stockholder's Stock in the Corporation a legend in
substantially the following form: "The shares of stock evidenced by this
Certificate are subject to the provisions of a voting agreement executed on
___________________, 1998, a copy of which is on file at the principal office of
the Corporation."
4. Changes in Common Xxxxx.Xx the event that subsequent to the date of
this Agreement any shares or other securities are issued on, or in exchange for,
any of the shares of the Stock held by the Stockholder by reason of any stock
dividend, stock split, consolidation of shares, reclassification, or
consolidation involving the Corporation, or if any additional shares of stock of
the Corporation are issued to the Stockholder, such shares or securities shall
be deemed to be Stock for purposes of this Agreement and shall be duly inscribed
as provided in Section 3 hereof.
5. Agreement Binding Upon Transferees. In the event that, at any time or
from time to time, any share of Stock is transferred by a Stockholder to any
party (other than the Corporation), in accordance with any provision permitting
such transfer in any agreement to which such Stockholder is a party or as
permitted by law with approval by the Corporation, the transferee shall take
such shares of Stock pursuant to all provisions, conditions and covenants of
3
this Agreement, and as a condition precedent to the transfer of such shares of
Stock, the transferee shall agree (for and on behalf of the transferee, the
transferee's legal representatives, transferees and assigns) in writing to be
bound by all provisions of this Agreement as a party hereto, but if the
transferee fails to so execute a writing, the transferee is nonetheless bound by
all provisions, conditions and covenants of this Agreement. In the event that
there shall be any transfer to any person or entity as described herein, all
references herein to a Stockholder shall thereafter be deemed to include such
transferee or transferees.
6. Term. This Agreement shall expire on July 1, 2003; provided, however,
that the parties hereto may extend its duration for additional two (2) year
terms within one (1) year prior to the expiration of the then current term, or
as may otherwise be permitted by law. Xxxxxx may terminate this Agreement, in
his uncontrolled discretion, by signing a declaration to that effect and sending
copy of the same to the Stockholder.
7. Representations of Stockholders. The Stockholder hereby represents and
warrants to Xxxxxx and the Corporation that (a) he/she owns and has the right to
vote the number of shares of the Stock set forth opposite his/her name on
Exhibit A attached hereto, (b) he/she has full power to enter into this
Agreement and has not, prior to the date of this Agreement nor during the terms
of this Agreement, executed or delivered any proxy or entered into any other
voting agreement or similar arrangement other than one which has expired or
terminated prior to the date hereof and (c) he/she will not take any action
inconsistent with the purposes and provisions of this Agreement.
8. Termination of Agreement Due to Death or Disability of Xxxxxx. In the
event of the death or permanent disability of Xxxxxx preventing him from
exercising the terms and provisions of this Agreement (as determined solely by
Xxxxxx or his legal representative), then, anything contained herein to the
contrary notwithstanding, this Agreement shall cease and terminate upon written
notice to the Stockholder.
9. Enforceability. The Stockholder expressly agrees that this Agreement
shall be specifically enforceable in any court of competent jurisdiction in
accordance with its terms against each of the parties hereto.
10. General Provisions.
(a) All of the covenants and agreements contained in this Agreement
shall be binding upon, and inure to the benefit of, the respective parties and
their successors, permitted assigns, heirs, legatees, executors, administrators
and other legal representatives, as the case may be.
4
(b) This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same instrument.
(d) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of this
Agreement and this Agreement shall continue in all respects to be valid and
enforceable.
(e) No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
(f) Whenever the context of this Agreement shall so require, the use
of the singular number shall include the plural and the use of any gender shall
include all genders.
(g) All notices and other communications hereunder shall be in
writing and shall be either personally delivered, or mailed first class
registered mail, postage prepaid, or sent by reputable overnight courier
service, charges prepaid. Notices shall be deemed to have been given hereunder
when delivered personally, three (3) days after deposit in the U.S. Mail and one
(1) day after deposit with a reputable overnight courier service.
(h) This Agreement may be amended by the written agreement of
holders of Voting Agreements representing not less than two-thirds (2/3) of the
shares of stock entitled to vote.
(i) This Agreement shall be filed with Xxxxxx, and a duplicate
hereof shall be filed in the principal office of the Corporation.
(CONTINUED NEXT PAGE)
5
IN WITNESS WHEREOF, the Stockholder has executed this Agreement as of the
date first above written.
WITNESS/ATTEST:
------------------------------ ------------------------------------
Name:
Stockholder
Address:
Phone:
WITNESS:
------------------------------ ------------------------------------
Xxxxx Xxxxxx, M.D.
Address same as hereinabove written
READ, ACKNOWLEDGED AND
AGREED TO:
AMERICA'S DOCTOR, INC.
By:____________________________
Its:
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
6
EXHIBIT A
AMERICA'S DOCTOR
STOCK CERTIFICATES ISSUED AS OF THE DATE OF EXECUTION OF AGREEMENT
Name of Stockholder Number of Certificates Total Number of Shares
------------------- ---------------------- ----------------------
* * *
A similar agreement was entered into by Xxxxx Xxxxxx and each of several
individual shareholders in the Corporation. The Voting Agreement covers
approximately 35,000 shares in the Corporation.
7
