TENDER AND VOTING AGREEMENT BY AND AMONG THE SHAREHOLDER OF DIALYSIS CORPORATION OF AMERICA SET FORTH ON THE SIGNATURE PAGE HERETO DIALYSIS CORPORATION OF AMERICA U.S. RENAL CARE, INC. AND URCHIN MERGER SUB, INC. DATED AS OF April 13, 2010
Exhibit 2 (B)
BY AND
AMONG
THE
SHAREHOLDER OF DIALYSIS CORPORATION OF AMERICA
SET FORTH
ON THE SIGNATURE PAGE HERETO
DIALYSIS
CORPORATION OF AMERICA
U.S.
RENAL CARE, INC.
AND
URCHIN
MERGER SUB, INC.
DATED AS
OF
April 13, 2010
TABLE
OF CONTENTS
| PAGE |
|
|
1.01
|
Tender
of Shares
|
1
|
|
ARTICLE
2
|
VOTING
AND RESTRICTIONS ON TRANSFER
|
2
|
|
|
2.01
|
Voting
Agreement
|
2
|
|
|
2.02
|
Irrevocable
Proxy
|
2
|
|
|
2.03
|
Restrictions
on Transfer
|
3
|
|
|
2.04
|
Inconsistent
Agreements
|
3
|
|
|
2.05
|
Adjustments
|
3
|
|
ARTICLE
3
|
NO
SOLICITATION
|
4
|
|
|
3.01
|
No
Solicitation
|
4
|
|
|
3.02
|
Notification
|
4
|
|
ARTICLE
4
|
REPRESENTATIONS
AND COVENANTS
|
4
|
|
|
4.01
|
Representations
and Warranties of Shareholder
|
4
|
|
|
4.02
|
Covenants
of Shareholder
|
6
|
|
|
4.03
|
Representations
and Warranties of the Company
|
6
|
|
|
4.04
|
Representations
and Warranties of Parent and Purchaser
|
7
|
|
ARTICLE
5
|
DEFINITIONS
|
8
|
|
|
5.01
|
Certain
Definitions
|
8
|
|
ARTICLE
6
|
MISCELLANEOUS
|
9
|
|
|
6.01
|
Termination
|
9
|
|
|
6.02
|
Expenses
|
9
|
|
|
6.03
|
Further
Assurances
|
9
|
|
|
6.04
|
Publicity
|
9
|
|
|
6.05
|
Enforcement
of the Agreement
|
9
|
|
|
6.06
|
Survival
|
10
|
|
|
6.07
|
Amendments
and Waivers
|
10
|
|
|
6.08
|
Entire
Agreement
|
10
|
|
|
6.09
|
Governing
Law; Exclusive Jurisdiction
|
10
|
|
|
6.10
|
Waiver
of Jury Trial
|
11
|
|
|
6.11
|
Headings
|
11
|
|
|
6.12
|
Notices
|
11
|
|
|
6.13
|
Counterparts;
Effectiveness
|
12
|
-i-
TABLE
OF CONTENTS
(continued)
| PAGE |
|
|
6.14
|
Assignment
|
12
|
|
|
6.15
|
Severability
|
13
|
|
|
6.16
|
Cumulative
|
13
|
|
|
6.17
|
Interpretation;
Rules of Construction
|
13
|
-ii-
THIS
TENDER AND VOTING AGREEMENT, dated as of April 13, 2010 (this “Agreement”),
is made and entered into by and among U.S. Renal Care, Inc., a Delaware
corporation (“Parent”),
Urchin Merger Sub, Inc. a Florida corporation and a wholly owned subsidiary of
Parent (“Purchaser”),
Dialysis Corporation of America, a Florida corporation (the “Company”),
and the shareholder of the Company set forth on the signature page hereto
(“Shareholder”).
WHEREAS, Shareholder is the
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), which meaning will apply for all purposes of this Agreement) and
record owner of the number of shares of the Company’s $0.01 par value common
stock (“Company Common
Stock”) (all such shares of Company Common Stock being hereinafter
referred to as the “Shares”),
and holds stock options (the “Options”)
to acquire the number of shares of Company Common Stock, in each case, as set
forth on Annex
A; and
WHEREAS, concurrently with the
execution and delivery hereof, Parent, Purchaser and the Company are entering
into an Agreement and Plan of Merger, dated as of the date hereof (as it may be
amended or supplemented from time to time, the “Merger
Agreement”), which provides, among other things, for Purchaser to
commence a tender offer, subject to the terms and conditions set forth therein
(the “Offer”),
for all of the issued and outstanding shares of Company Common Stock and that,
upon the terms and subject to the conditions therein, Purchaser will merge (the
“Merger”)
with and into the Company, with the Company continuing as the surviving
corporation, upon the terms and subject to the conditions set forth in the
Merger Agreement; and
WHEREAS, as a condition to the
willingness of Parent and Purchaser to enter into the Merger Agreement, Parent
and Purchaser have requested that Shareholder agree, and in order to induce
Parent and Purchaser to enter into the Merger Agreement, Shareholder has agreed,
to enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to the
terms and conditions set forth herein, the parties hereto hereby agree as
follows:
ARTICLE
1
TENDER
OF SHARES
1.01 Tender of
Shares. Shareholder shall validly tender (or cause the record
owner of such Shares to validly tender) and sell (and not withdraw) pursuant to
and in accordance with the terms of the Offer, not later than the tenth (10th) day
after commencement of the Offer, all of the Shares. Shareholder
agrees that once the Shares are tendered into the Offer, Shareholder will not
withdraw any Shares from the Offer unless and until the earlier of (a) the Offer
shall have been terminated in accordance with the terms of the Merger Agreement
or (b) this Agreement shall have been terminated in accordance with Section
6.01. In the event, notwithstanding the provisions of the
first sentence of this Section 1.01, any
Shares are for any reason withdrawn from the Offer or are not purchased pursuant
to the Offer, such Shares will remain subject to the terms of this
Agreement. Shareholder acknowledges that Purchaser’s obligation to
accept for payment and pay for any Shares in the Offer is subject to all the
terms and conditions of the Offer and the Merger Agreement.
-1-
ARTICLE
2
VOTING
AND RESTRICTIONS ON TRANSFER
2.01 Voting
Agreement. Shareholder, by this Agreement, does hereby
constitute and appoint Parent and Purchaser, or any nominee thereof, with full
power of substitution and resubstitution, during and for the term of this
Agreement, as Shareholder’s true and lawful attorney-in-fact and proxy for and
in Shareholder’s name, place and stead, to vote (or to instruct nominees or
record holders to vote) all the Shares that Shareholder owns beneficially or of
record at the time of such vote, at any annual, special or adjourned or
postponed meeting of the shareholders of the Company (and this appointment will
include the right to sign on behalf of Shareholder as Shareholder’s attorney in
fact to any consent, certificate or other document relating to the Company that
Laws of the State of Florida may require or permit) (a) in favor of approval of
the Merger Agreement and the Merger, (b) against the approval or adoption of (i)
any Alternative Transaction, without regard to the terms of such Alternative
Transaction, or any other transaction, proposal, agreement or action made in
opposition to the approval of the Merger Agreement or in competition or
inconsistent with the Offer or the Merger and the other transactions
contemplated by the Merger Agreement, (ii) any action, proposal, transaction or
agreement that is intended, or could reasonably be expected, or the effect of
which could reasonably be expected, to result in a breach in any respect of any
covenant, agreement, representation, warranty or any other obligation of the
Company under the Merger Agreement or of Shareholder under this Agreement and
(iii) the following actions (other than the Offer, the Merger and the other
transactions contemplated by the Merger Agreement (not including an Alternative
Transaction)): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or its
Subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or one of its Subsidiaries, or a reorganization, recapitalization,
dissolution, liquidation or winding up of the Company or its Subsidiaries; (C)
(1) any change in a majority of the persons who constitute the Company Board as
of the date hereof, except for changes requested or expressly permitted by
Parent or Purchaser; (2) any change in the present capitalization of the Company
or any amendment of the Company’s articles of incorporation or bylaws, as
amended to date; (3) any other material change in the Company’s corporate
structure or business; or (4) any other action that, in the case of each of the
matters referred to in clauses (C)(1), (2) and (3) is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, discourage,
or adversely affect the Offer, the Merger or the other transactions contemplated
by this Agreement and the Merger Agreement, and (c) in favor of any other
matters necessary to the consummation of the transactions contemplated by the
Merger Agreement, including the Offer and the Merger.
2.02 Irrevocable
Proxy. Shareholder hereby affirms that this proxy and power of
attorney as set forth in Section 2.01 are
irrevocable and coupled with an interest sufficient to support an irrevocable
proxy under applicable Law. Shareholder hereby further affirms that
the irrevocable proxy set forth in Section 2.01 is given
in connection with, and granted in consideration of and as an inducement to,
Parent and Purchaser entering into the Merger Agreement and such proxy is given
to secure the performance of the duties of Shareholder under this
Agreement. Shareholder represents and warrants that any proxies or
power of attorneys heretofore given in respect of Shareholder’s Shares that may
still be in effect are not irrevocable and Shareholder hereby revokes all and
any other proxies and power of attorneys with respect to the Shares that
Shareholder may have heretofore made or granted. If for any reason
the proxy granted herein is found by a Court of competent jurisdiction to not be
irrevocable, then Shareholder agrees to vote the Shares in accordance with Section 2.01 above as
instructed by Parent or Purchaser in writing. The parties agree that
the foregoing is a voting agreement. For Shares as to which Shareholder is the
beneficial but not the record owner, Shareholder shall take all necessary
actions to cause any record owner of such Shares to grant to Parent or Purchaser
an irrevocable proxy to the same effect as that contained herein.
-2-
2.03 Restrictions on
Transfer.
(a) During
the term of this Agreement, except as otherwise provided herein, Shareholder
will not (i) tender into any tender or exchange offer (other than the Offer) or
otherwise Transfer
any of the Shares, (ii) acquire any shares of Company Common Stock or other
securities of the Company (otherwise than in connection with a transaction of
the type described in Section 2.05(a)(i)),
including, by exercising any of the Covered Shares (unless specifically
requested by or agreed to by Parent or Purchaser in writing prior to such
acquisition or exercise), (iii) deposit the Shares into a voting trust, enter
into a voting agreement or arrangement with any Person with respect to the
Shares or grant any proxy or power of attorney (whether or not revocable) with
respect to the Shares to any Person, (iv) enter into any Contract, option or
other arrangement or undertaking with respect to the Transfer of any interest,
in or the voting of, any shares of Company Common Stock or any other securities
of the Company, (v) commit any act that could restrict or affect Shareholder’s
legal power, authority or right to vote any or all of the Shares then owned of
record or beneficially by Shareholder or otherwise prevent or disable
Shareholder from performing any of Shareholder’s obligations under this
Agreement, or (vi) discuss, negotiate, make an offer or enter into a Contract,
commitment or other arrangement with respect to any of the matter in clauses (i)
through (v) above.
(b) Shareholder
understands and agrees that if Shareholder attempts to Transfer, vote or provide
any other Person with the authority to vote any of the Shares other than in
compliance with this Agreement, the Company shall not, and Shareholder hereby
unconditionally and irrevocably instructs the Company to not, (i) permit any
such Transfer on its books and records, (ii) issue (A) book entry shares or (B)
a new certificate representing any of the Shares or (iii) record such vote
unless and until Shareholder shall have complied in all respects with the terms
of this Agreement.
(c) Shareholder
agrees that it shall not, and shall cause each of its Affiliates not to, become
a member of a “group” (as that term is used in Section 13(d) of the Exchange
Act) that Shareholder or such Affiliate is not currently a part of and that has
not been disclosed in a filing with the SEC prior to the date hereof (other than
as a result of entering into this Agreement) with respect to any shares of
Company Common Stock or any other voting securities of the Company for the
purpose of opposing or competing with the transactions contemplated by the Offer
or the Merger Agreement.
2.04 Inconsistent
Agreements. Shareholder hereby covenants and agrees that,
except for this Agreement, Shareholder (a) has not entered into, and shall not
enter into at any time while this Agreement remains in effect, any voting
agreement or voting trust with respect to the Shares and (b) has not granted,
and shall not grant at any time while this Agreement remains in effect, a proxy,
consent or power of attorney with respect to the Shares.
2.05 Adjustments.
(a) In the
event (i) of any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock or other
securities of the Company on, of or affecting the Shares or the like or any
other action that would have the effect of changing Shareholder’s ownership of
the Shares or other Company securities or (ii) Shareholder becomes the
beneficial or record owner of any additional shares of Company Common Stock or
other securities of the Company during the period commencing with the execution
and delivery of this Agreement through the termination of this Agreement
pursuant to Section
6.01, then the terms of this Agreement will apply to the shares of
capital stock held by the Shareholder immediately following the effectiveness of
the events described in clause (i) or Shareholder becoming the beneficial owner
thereof, as described in clause (ii), as though they were Shares
hereunder.
-3-
(b) Shareholder
hereby agrees, while this Agreement is in effect, to promptly notify Parent in
writing of the number of any new shares of Company Common Stock or other
securities of the Company acquired by Shareholder, if any, after the date
hereof.
ARTICLE
3
NO
SOLICITATION
3.01 No
Solicitation. Prior to the termination of this Agreement,
Shareholder in his capacity as a shareholder of the Company will not, and shall
cause Shareholder’s Representatives not to, directly or indirectly: (a) solicit,
initiate, encourage, propose, induce, facilitate (including by way of providing
information) or take any other action to facilitate the making, submission or
announcement of any inquiries or proposals regarding any merger, share exchange,
consolidation, sale of assets, sale of shares of capital stock (including by way
of a tender offer) or similar transactions involving the Company or any of the
Company Subsidiaries that, if consummated, would constitute an Alternative
Transaction, (b) furnish any information regarding the Company or any of the
Company Subsidiaries to any Person in connection with or in response to any
Alternative Proposal or Alternative Transaction, (c) conduct, engage in or
participate in any discussions or negotiations regarding an Alternative Proposal
or Alternative Transaction; provided, however, that nothing in this Section 3.01(c) shall
prevent Shareholder, in his or her capacity solely as a director or executive
officer of the Company, from engaging in any activity permitted pursuant to
Section 5.3 of
the Merger Agreement., or (d) enter into any agreement regarding any Alternative
Proposal or Alternative Transaction.
3.02 Notification. Shareholder
shall, and shall cause Shareholder’s Representatives to, immediately cease and
cause to be terminated any discussions or negotiations with any Persons that may
have been conducted heretofore with respect to an Alternative
Transaction. From and after the date hereof until the later of the
Effective Time and the termination of the Agreement, Shareholder shall
immediately advise Parent orally (and in any event within 24 hours) and as
promptly as practicable in writing of: (a) any Alternative Proposal or
Alternative Transaction, (b) the receipt of any request for non-public
information related to the Company or its Subsidiaries, and (c) the receipt of
any request for information or any inquiries or proposals (whether or not
written) relating to an Alternative Transaction, including in each case the
identity of the Person making any such Alternative Proposal or Alternative
Transaction or indication or inquiry and the material terms of any such
Alternative Proposal or Alternative Transaction or indication or inquiry
(including, if applicable, copies of any written requests, proposals or offers,
including proposed agreements). Shareholder shall keep Parent
informed on a current basis of the status and terms of any such Alternative
Proposal or Alternative Transaction or indication or inquiry (including, if
applicable, any revised copies of written requests, proposals and offers) and
the status of any such discussions or negotiations.
ARTICLE
4
REPRESENTATIONS
AND COVENANTS
4.01 Representations and
Warranties of Shareholder. Shareholder represents and warrants
to Parent, Purchaser and the Company, as of the date hereof and for so long as
this Agreement remains in effect, as follows:
(a) Shareholder
is the beneficial owner of, and has good title to, the Shares and the Covered
Shares, free and clear of any mortgage, pledge, hypothecation, rights of others,
claim, security interest, charge, encumbrance, title defect, title retention
agreement, voting trust agreement, interest, option, lien, charge or similar
restriction or limitation (each, a “Lien”)
(including any restriction on the right to vote or Transfer any of the Shares),
except as may be provided for in this Agreement.
-4-
(b) Other
than the Covered Shares, the Shares constitute all of the securities (as defined
in Section 3(10) of the Exchange Act, which definition will apply for all
purposes of this Agreement) of the Company beneficially owned, directly or
indirectly, by Shareholder (excluding any securities beneficially owned by any
of Shareholder’s Affiliates or “associates” (as such term is defined in Rule
12b-2 under the Exchange Act, which definition will apply for all purposes of
this Agreement) as to which Shareholder does not have voting or investment
power).
(c) Except
for the Shares and the Covered Shares, Shareholder does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote, nor is Shareholder subject to any Contract or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates Shareholder to vote, acquire or dispose of any
securities of the Company. Shareholder holds exclusive power to vote
the Shares and (other than as set forth in Section 2.01) has not
granted a proxy to any other Person to vote the Shares.
(d) Shareholder
has full legal right and capacity to execute and deliver this Agreement, to
perform Shareholder’s obligations hereunder and to consummate the transactions
contemplated by this Agreement.
(e) This
Agreement has been duly executed and delivered by Shareholder and, assuming due
authorization, execution and delivery of this Agreement by the Company, Parent
and Purchaser, is Shareholder’s valid and legally binding obligation,
enforceable in accordance with its terms (except as enforcement may be limited
by (i) the effect of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other Laws affecting or relating to
creditors’ rights generally or (ii) the rules governing the availability of
specific performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a Proceeding in equity
or at law.
(f) The
execution, delivery and performance of this Agreement does not and will not, (i)
require any consent or approval under any Law, Permit or Contract, or (ii)
violate any other Contract to which Shareholder or any of its Affiliates is a
party including, any voting agreement, shareholders agreement, irrevocable proxy
or voting trust.
(g) Neither
the execution and delivery of this Agreement nor the performance by Shareholder
of Shareholder’s respective obligations hereunder will violate any Law
applicable to Shareholder.
(h) All
Contracts, transfers of assets or liabilities or other commitments, whether or
not entered into in the ordinary course of business, to or by which the Company
or any of its Subsidiaries, on the one hand, and Shareholder or any of its
Affiliates (other than the Company or any of its Subsidiaries), on the other
hand, are or have been a party or otherwise bound or affected, that (i) are
currently pending or in effect or (ii) involve continuing liabilities,
obligations or indemnification obligations that, individually or in the
aggregate, have been, are or will be material to the Company or any of its
Subsidiaries taken as a whole, have been disclosed in the Company SEC Documents
prior to the date hereof.
(i) No
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this
Agreement or the Merger Agreement based upon arrangements made by or on behalf
of Shareholder that is or will be payable by the Company or any of its
Subsidiaries (other than as disclosed in Section 3.24 of the
Merger Agreement).
-5-
(j) Shareholder
agrees that it is a sophisticated party with respect to the Shares and the
Covered Shares and has adequate information concerning the business and
financial condition of the Company to make an informed decision regarding the
transactions contemplated by this Agreement and has independently and without
reliance upon either Purchaser or Parent and based on such information as
Shareholder has deemed appropriate, made his own analysis and decision to enter
into this Agreement. Shareholder acknowledges that neither Purchaser
nor Parent has made and neither makes any representation or warranty, whether
express or implied, of any kind or character except as expressly set forth in
this Agreement.
(k) Shareholder
understands and acknowledges that Parent and Purchaser are entering into the
Merger Agreement in reliance upon Shareholder’s execution and delivery of this
Agreement and the representations, warranties and covenants contained
herein.
4.02 Covenants of
Shareholder. Shareholder hereby:
(a) agrees,
prior to the termination of this Agreement pursuant to Section 6.01, not to
take any action that would make any representation or warranty of Shareholder
contained herein untrue or incorrect in any and all respects or would reasonably
be expected to have the effect of preventing, impeding or interfering with or
adversely affecting the performance by the Shareholder of its obligations under
or contemplated by this Agreement;
(b) agrees
that if Shareholder is an individual, Shareholder shall cause his spouse or
registered domestic partner, as applicable, to execute and deliver a separate
consent and agreement in the form attached as Exhibit A
hereto;
(c) agrees to
exercise any of the Options upon the request of Parent or Purchaser on or before
the Business Day following such request unless otherwise specified by Parent or
Purchaser in writing, provided that Shareholder shall be required to exercise
any Option only to the extent that such Option, by the terms of the applicable
Company Stock Plan and agreement for such Option, is exercisable on a cashless
basis;
(d) irrevocably
waives, and agrees not to exercise, any rights of appraisal or rights of dissent
with respect to the Merger that Shareholder may have now or at any time with
respect to the Shares;
(e) shall and
does hereby authorize the Company or its counsel to, notify the Company’s
transfer agent that there is a stop transfer order with respect to all of the
Shares (and that this Agreement places limits on the voting and transfer of such
Shares)[;
and]
(f) agrees
that, upon request of Parent or Purchaser, Shareholder shall execute and deliver
any additional documents and take such further actions as may reasonably be
deemed by Parent or Purchaser to be necessary or desirable to carry out the
provisions of this Agreement[;
and]
(g) [agrees
(i) that all of his Options shall be treated in accordance with the terms of the
Merger Agreement, including Section 2.6 of the Merger Agreement, and (ii) to
irrevocably waive any and all rights and interests granted to him under the
Non-Qualified Stock Option Certificate, the Company Stock Plans or otherwise as
a result of a “Change in Control” or “Acquiring Person” (as such terms are
defined in the Company Stock Plans), including all rights related to redeeming,
keeping and holding the Options upon the occurrence of a Change in Control or
otherwise.] [Bracketed language used for Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxxxxxx]
-6-
4.03 Representations and
Warranties of the Company. The Company represents and warrants
to Parent and Purchaser, as of the date hereof and for so long as this Agreement
remains in effect, as follows:
(a) The
Company is a corporation duly incorporated, validly existing and in active
status under the Laws of the State of Florida. The Company has the
requisite power and authority and possesses all Permits, easements, consents,
waivers and Orders to own, lease or otherwise hold, use and operate all of its
properties, rights and assets and to carry on its business as it is now being
conducted, and is duly licensed and qualified to do business and is in good
standing in each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary or appropriate, except where
the failure to be so duly licensed or qualified to business or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
(b) The
Company has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery by the Company of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly, validly and unanimously approved by the Company
Board. This Agreement has been duly and validly executed and
delivered by the Company and, assuming due authorization, execution and delivery
hereof by Shareholder, Parent and Purchaser, constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforcement may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other Laws affecting or relating to creditors’ rights
generally or (ii) the rules governing the availability of specific
performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a Proceeding in equity
or at law.
(c) None of
(i) the execution, delivery or performance of this Agreement, (ii) the
compliance by the Company with the provisions of this Agreement or (iii) the
consummation of the transactions contemplated by this Agreement, will, directly
or indirectly, (with or without notice or lapse of time, or both) (A)
contravene, conflict with, or result in any violation or breach of (1) any
provision of the Company Articles or Company Bylaws or comparable governing
documents of the Company Subsidiaries, or (2) any resolution adopted by the
Company’s shareholders, the Company Board, or any committee of the Company
Board, (B) (1) give any Governmental Entity or other Person the right to
challenge the Offer, the Merger or any of the transactions contemplated by this
Agreement, (2) violate any Law applicable to the Company or any of the
Company Subsidiaries or any of their respective properties or assets, or (3)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the modification,
cancellation, acceleration or termination of or a right of modification,
cancellation, acceleration or termination under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties, rights or assets of the Company or the Company Subsidiaries under,
any of the terms, conditions or provisions of any Contract to which the Company
or any of the Company Subsidiaries is a party, or by which any of them or any of
their respective properties or assets is bound, except, with respect solely to
clause (B)(3), for such Contracts, properties, rights or assets that would not
be material to the Company or any Company Subsidiary.
-7-
(d) The
Company has taken all necessary corporate or other action (including approval by
the Company Board) to render inapplicable to this Agreement and the transactions
contemplated hereby, any anti-takeover statute or regulation, including any
affiliate transaction or control share acquisition, in each case under the
Florida Business Corporation Act, including Sections 607.0901 and 607.0902 of
the Florida Business Corporation Act, or other applicable Laws of the State of
Florida.
4.04 Representations and
Warranties of Parent and Purchaser. Parent and Purchaser
represent and warrant to Shareholder, as of the date hereof and for so long as
this Agreement remains in effect, as follows:
(a) Parent is
a corporation duly organized, validly existing and in good standing under the
Laws of the State of Delaware.
(b) Purchaser
is a corporation duly organized, validly existing and in good standing under the
Laws of the State of Florida.
(c) Each of
Parent and Purchaser has duly authorized, executed and delivered this
Agreement. Assuming this Agreement constitutes a valid and binding
agreement of Shareholder and the Company, this Agreement constitutes a valid and
legally binding obligation of Parent and Purchaser, enforceable against Parent
and Purchaser in accordance with its terms, except as such enforcement may be
limited by (i) the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other Laws affected or
relating to creditors’ rights generally or (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
Proceeding in equity or law.
ARTICLE
5
DEFINITIONS
5.01 Certain
Definitions. Capitalized terms used but not otherwise defined
herein have the meanings ascribed to such terms in the Merger
Agreement. For all purposes of and under this Agreement, the
following terms shall have the following respective meanings:
“Agreement”
has the meaning set forth in the Preamble.
“Company”
has the meaning set forth in the Preamble.
“Company Common
Stock” has the meaning set forth in the Recitals.
“Constructive
Sale” means with respect to any security a short sale with respect to
such security, entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or forward
contract to deliver such security or entering into any other hedging or other
derivative transaction that has the effect of either directly or indirectly
materially changing the economic benefits and risks of ownership.
“Covered
Shares” means, other than the Shares, any shares of Company Common Stock
or other voting capital stock of the Company and any securities convertible into
or exercisable or exchangeable for shares of Company Common Stock, including the
Options, or other voting capital stock of the Company, in each case, that the
Shareholder acquires beneficial ownership of on or after the date
hereof.
“Exchange
Act” has the meaning set forth in Recitals.
-8-
“Lien” has
the meaning set forth in Section
4.01(a).
“Merger”
has the meaning set forth in the Recitals.
“Merger
Agreement” has the meaning set forth in the Recitals.
“Offer” has
the meaning set forth in the Recitals.
“Options”
has the meaning set forth in the Recitals.
“Parent”
has the meaning set forth in the Preamble.
“Purchaser”
has the meaning set forth in the Preamble.
“Shares”
has the meaning set forth in the Recitals.
“Shareholder”
has the meaning set forth in the Preamble.
“Transfer”
means, with respect to any security, the direct or indirect assignment, sale,
transfer, tender exchange, pledge, hypothecation, or the grant, creation or
suffrage of a lien, security interest or encumbrance in or upon, or the gift,
placement in trust, or the Constructive Sale or other disposition of such
security (including transfers by testamentary or intestate succession or
otherwise by operation of law) or any right, title or interest therein
(including, but not limited to, any right or power to vote to which the holder
thereof may be entitled, whether such right or power is granted by proxy or
otherwise), or the record or beneficial ownership thereof, the offer to make
such a sale, transfer, Constructive Sale or other disposition, and each
agreement, arrangement or understanding, whether or not in writing, to effect
any of the foregoing.
ARTICLE
6
MISCELLANEOUS
6.01 Termination. This
Agreement will terminate (a) upon the purchase of all the Shares pursuant to the
Offer in accordance with Section 1.01, (b) on
the earlier to occur of (i) the Effective Time or (ii) the date the Merger
Agreement is terminated in accordance with its terms, or (c) by the mutual
consent of Shareholder, the Company and Parent. Notwithstanding the
preceding sentence, this Article 6 shall
survive any termination of this Agreement. Nothing in this Article 6 shall
relieve or otherwise limit any party of liability for any knowing and
intentional breach of this Agreement.
6.02 Expenses. Except
as otherwise expressly provided herein or in the Merger Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, whether
or not the Offer or the Merger is consummated.
6.03 Further
Assurances. Each party hereto will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary or appropriate in order to consummate the transactions contemplated
hereby.
6.04 Publicity. Shareholder
shall consult with Parent and the Company before issuing any press release or
otherwise making any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby and
shall not issue any such press release or make any such public statement before
such consultation, except as may be required by Law or applicable stock exchange
rules.
-9-
6.05 Enforcement of the
Agreement. Parent, Purchaser, Shareholder and the Company
agree that money damages would not be a sufficient remedy for any breach of this
Agreement by Shareholder or the Company. The parties hereby agree
that Parent and Purchaser shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach, and to
enforce compliance with those covenants of Shareholder and the
Company. In connection with any request for specific performance or
equitable relief by Parent and Purchaser, Shareholder and the Company hereby
waive any requirement for the security or posting of any bond in connection with
such remedy. Such
remedy shall not be deemed to be the exclusive remedy for breach of this
Agreement but shall be in addition to all other remedies available at law or
equity to Parent and Purchaser. The parties further
agree that (a) by seeking the remedies provided for in this Section 6.05, Parent
shall not in any respect waive its right to seek any other form of relief that
may be available to it under this Agreement, including monetary damages in the
event that this Agreement has been terminated or in the event that the remedies
provided for in this Section 6.05 are not
available or otherwise are not granted, and (b) nothing contained in this
Section 6.05
shall require the Parent or Purchaser to institute any proceeding for (or limit
the Parent’s right to institute any proceeding for) specific performance under
this Section
6.05 before exercising any termination right under Article 6 (and
pursuing damages after such termination) nor shall the commencement of any
action pursuant to this Section 6.05 or
anything contained in this Section 6.05 restrict
or limit the Parent’s or Purchaser’s right to terminate this Agreement in
accordance with the terms of Article 6 or pursue
any other remedies under this Agreement that may be available then or
thereafter. Shareholder and the Company acknowledge and agree that
neither Shareholder nor the Company shall be entitled to specific performance or
injunctive or other equitable relief as a remedy for any breach of this
Agreement by Parent or Purchaser, to enforce compliance with any covenants of
Parent or Purchaser, or otherwise. Notwithstanding Section 6.02,
Shareholder, on the one hand, or Parent or Purchaser, on the other hand, will
pay all fees, costs and expenses (including legal expenses) incurred by such
other party in connection with matters related to the successful enforcement of
such party’s obligations under this Agreement as set forth in this Section
6.05.
6.06 Survival. All
of Shareholder’s representations and warranties contained herein will survive
for twelve (12) months after the termination hereof. The covenants
and agreements made herein will survive in accordance with their respective
terms.
6.07 Amendments and
Waivers. Any provision of this Agreement may be
(a) waived by the party benefited by the provision, but only in writing, or
(b) amended or modified at any time, but only by a written agreement
executed in the same manner as this Agreement, except to the extent that any
such amendment would violate applicable Law or require submission or
resubmission of the Merger Agreement to the shareholders of the
Company.
6.08 Entire
Agreement. This Agreement and the Merger Agreement constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, and supersede all prior agreements among the parties with respect to
such matters.
6.09 Governing Law; Exclusive
Jurisdiction.
-10-
(a) THIS
AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY AND
ALL DISPUTES BETWEEN THE PARTIES UNDER OR RELATING TO THIS AGREEMENT OR THE
FACTS AND CIRCUMSTANCES LEADING TO ITS EXECUTION, WHETHER IN CONTRACT, TORT OR
OTHERWISE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE (WITHOUT REFERENCE TO SUCH STATE’S PRINCIPLES OF CONFLICTS OF
LAW). THE DELAWARE COURT OF CHANCERY (AND IF THE DELAWARE COURT OF
CHANCERY SHALL BE UNAVAILABLE, ANY DELAWARE STATE COURT AND THE FEDERAL COURT OF
THE UNITED STATES OF AMERICA SITTING IN THE STATE OF DELAWARE) WILL HAVE
EXCLUSIVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO,
WHETHER IN LAW OR EQUITY, BASED UPON, ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR
THE FACTS AND CIRCUMSTANCES LEADING TO ITS EXECUTION, WHETHER IN CONTRACT, TORT
OR OTHERWISE. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO AND AGREES
TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AGREES THAT PROCESS MAY
BE SERVED UPON THEM IN ANY MANNER AUTHORIZED BY THE LAWS OF THE STATE OF
DELAWARE, AND HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (ii) SUCH PARTY AND
SUCH PARTY’S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR
(iii) ANY LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT
FORUM.
(b) Shareholder
irrevocably and unconditionally confirms and agrees that it has (i) taken all
necessary action to appoint an maintain an agent in the State of Delaware as
Shareholder’s agent for acceptance of legal process, and (ii) notified Parent
and Purchaser of the name and address of such agent. Shareholder
agrees that to the fullest extent permitted by Law, service of process may be
made on Shareholder by prepaid certified mail to its address set forth in Section 6.12, and
that, to the fullest extent permitted by applicable Law, service made pursuant
to this Section
6.09(b) shall have the same legal force and effect as if served upon
Shareholder personally within the State of Delaware. For purposes of
implementing Shareholder’s agreement to appoint and maintain an agent for
service of process in the State of Delaware, Shareholder does hereby appoint The
Corporation Trust Company as such
agent.
6.10 Waiver of Jury
Trial. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT WHICH ANY PARTY MAY HAVE TO TRIAL BY JURY IN
RESPECT OF ANY PROCEEDING, LITIGATION OR COUNTERCLAIM BASED ON, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. IF THE SUBJECT MATTER OF ANY LAWSUIT IS ONE IN WHICH THE
WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY TO THIS AGREEMENT SHALL PRESENT AS
A NON-COMPULSORY COUNTERCLAIM IN ANY SUCH LAWSUIT ANY CLAIM BASED ON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHERMORE, NO
PARTY TO THIS AGREEMENT SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A
JURY TRIAL CANNOT BE WAIVED.
6.11 Headings. The
descriptive headings contained herein are for convenience and reference only and
will not affect in any way the meaning or interpretation of this
Agreement.
6.12 Notices. All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given when delivered personally
(including by courier or overnight courier with confirmation), telecopied (with
confirmation), or delivered by an overnight courier (with confirmation) to the
parties at the following addresses or sent by electronic transmission to the
telecopier number specified below:
-11-
If to
Shareholder, to
_______________________________
Attention: ______________________
Telecopier
No.: __________________
If to the
Company, to:
Dialysis
Corporation of America
0000
Xxxxxxxxx Xxxxx
Xxxxx
000
Xxxxxxxxx,
Xxxxxxxx
Attention: General
Counsel
Telecopier
No.: (000) 000-0000
With a
copy to:
Arent Fox
LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxx, Esq.
Telecopier
No.: (000) 000-0000
|
|
If
to Parent or Purchaser, to:
|
|
|
U.S.
Renal Care, Inc.
|
|
|
0000
Xxxxxx Xxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxx,
Xxxxx 00000
|
|
|
Attention: General
Counsel
|
|
|
Telecopier
No.: (000) 000-0000
|
|
|
With
a copy to:
|
|
|
Fulbright &
Xxxxxxxx L.L.P.
|
|
|
0000
Xxxx Xxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Attention: Xxxxx
X. Xxxxxxx, Esq.
|
|
|
Telecopier
No.: (000) 000-0000
|
or to
such other address as any party may have furnished to the other parties in
writing in accordance herewith.
6.13 Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by all of the other parties hereto. Until
and unless each party has received a counterpart hereof signed by each other
party hereto, this Agreement shall have no effect and no party shall have any
right or obligation hereunder (whether by virtue of any other oral or written
agreement or other communication). Signatures to this Agreement
transmitted by facsimile transmission, by electronic mail in PDF form, or by any
other electronic means designed to preserve the original graphic and pictorial
appearance of a document, will be deemed to have the same effect as physical
delivery of the paper document bearing the original signatures.
-12-
6.14 Assignment. Neither
this Agreement nor any of the rights, interests or obligations 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; provided, however, that Parent and
Purchaser may transfer or assign its rights and obligations under this
Agreement, in whole or in part or from time to time in part, to one or more of
their Affiliates at any time. Any assignment in violation of the
foregoing shall be null and void. Subject to the preceding two
sentences, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and
assigns.
6.15 Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a Court of competent jurisdiction
declares that any term or provision hereof is illegal, void, invalid or
unenforceable, the parties hereto agree that the Court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any illegal, void, invalid or unenforceable term or
provision with a term or provision that is legal, valid and enforceable and that
comes closest to expressing the intention of the illegal, void, invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified. In the event such Court does not exercise the power granted to it in
the prior sentence, the parties hereto shall replace such invalid or
unenforceable term or provision with a valid and enforceable term or provision
that will achieve, to the extent possible, the original economic, business and
other purposes of such invalid or unenforceable term as closely as possible in
an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
6.16 Cumulative. All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity will be cumulative and not alternative,
and the exercise of any thereof by Parent or Purchaser will not preclude the
simultaneous or later exercise of any other such right, power or remedy by
Parent or Purchaser.
-13-
6.17 Interpretation; Rules of
Construction. When a reference is made in this Agreement to an
Article, Section, Exhibit or Schedule, such reference is to an Article or
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated. The phrase “the date of this Agreement” and terms of
similar import, unless the context otherwise requires, shall be deemed to refer
to the date set forth in the first paragraph of this Agreement. The
table of contents and headings contained in this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this
Agreement. As used in this Agreement, (a) the words “include,”
“includes” or “including” shall be deemed to be followed by the words “without
limitation,” (b) the word “or” shall not be exclusive, (c) the words
“hereof,” “herein,” “hereunder,” “hereto” and words of similar import refer to
this Agreement as a whole (including any Exhibits and Schedules hereto) and not
to any particular provision of this Agreement, (d) all references to any
period of days shall be to the relevant number of calendar days unless otherwise
specified, (e) all references to dollars or $ shall be references to United
States dollars, and (f) all accounting terms shall have their respective
meanings under GAAP. All terms defined in this Agreement will have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes (provided that, in the case of
Contracts that are the subject of representations and warranties set forth
herein, copies of all amendments, modifications, waivers, consents or
supplements have been provided on or prior to the date of this Agreement to the
party to whom such representations and warranties are being
made). The parties hereto have participated jointly in the
negotiating and drafting of this Agreement and, in the event an ambiguity or
question of intent arises, this Agreement shall be construed as jointly drafted
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this
Agreement.
[Signatures
on following page]
-14-
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
DIALYSIS
CORPORATION OF AMERICA
By:
Name:
Xxxxxxx X. Xxxxxxx
Title: President
and Chief Executive Officer
U.S.
RENAL CARE, INC.
By:
Name: J.
Xxxxxxxxxxx Xxxxxxxx
Title: Chief
Executive Officer
URCHIN
MERGER SUB, INC.
By:
Name: J.
Xxxxxxxxxxx Xxxxxxxx
Title: President
SHAREHOLDER
By:
Name:
Title:
-15-
EXHIBIT
A
FORM OF SPOUSAL
CONSENT
Dated
April [—], 2010
Reference
is hereby made to that certain Tender and Voting Agreement (the “Agreement”) dated as
of April 13, 2010 by and among Parent, Purchaser, the Company and Shareholder
(as hereinafter defined). Capitalized terms used herein but not
otherwise defined shall have the meaning ascribed thereto in the
Agreement.
This
Spousal Consent is being delivered pursuant to Section 4.02(b) of
the Agreement, a copy of which has been provided to the undersigned (“Spouse”). Spouse,
as the spouse or registered domestic partner of ______________________ (“Shareholder”),
consents to all of the provisions of the Agreement and to the extent that Spouse
may lawfully do so, Spouse confirms that Shareholder may act alone with respect
to all matters in connection with the Agreement. Spouse also confirms
that Shareholder may enter into agreements pursuant to the Agreement and consent
to and execute amendments thereof, without further signature or consent of, or
notice to, Spouse. Spouse further agrees that he/she will not take
any action to oppose or otherwise hinder the operation of the provisions of the
Agreement and the transactions contemplated by the Agreement.
To the
extent of any property interest that Spouse may have in Shareholder’s Shares or
Covered Shares, Spouse consents to be bound by the terms of the
Agreement.
Name of
Spouse:
-16-
ANNEX A
|
NUMBER OF SHARES
|
NUMBER OF OPTIONS
|
