EXHIBIT H
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 31, 2001, between Welsh, Carson,
Xxxxxxxx & Xxxxx IX, L.P., a Delaware limited partnership ("WCAS") and the
holders of the Grant family interest (the "Stockholders"). Capitalized terms
used without definition herein having the meanings ascribed thereto in the
Purchase Agreement.
WHEREAS, concurrently herewith, WCAS is entering into a Securities
Purchase Agreement (the "Purchase Agreement") with LabOne, Inc., a Missouri
corporation (the "Company") and the several other purchasers named on Schedule I
thereto;
WHEREAS, each Stockholder is the record and beneficial owner (as
defined in Rule 13d-3 of the Exchange Act) of the number of shares of Company
Common Stock set forth opposite such Stockholder's name on Schedule I hereto;
and
WHEREAS, the Purchasers are unwilling to enter into the Purchase
Agreement unless the Stockholders enter into this Agreement concurrently with
the execution of the Purchase Agreement, and the Stockholders desire and are
willing to induce the Purchasers to enter into the Purchase Agreement by their
entry into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. AGREEMENT TO VOTE; IRREVOCABLE PROXY.
(a) The Stockholders hereby agree that, during the period commencing
on the date hereof and continuing until the termination of this Agreement, at
any stockholders' meeting of the Company at which any of the following matters
is submitted to a vote of the stockholders, they shall vote (or cause to be
voted) their shares of Company Common Stock (or shall execute and deliver a
written consent pursuant to Section 351.273 of the Missouri Code):
(i) in favor of Company Shareholder Approval;
(ii) in favor of any director nominated, appointed or selected as a
WCAS Director in accordance with Section 6.02 of the Purchase
Agreement; and
(iii) against any action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially
adversely affect the approval by the stockholders of the Company of
the actions described in (i) and (ii), including any action which
seeks to cause the removal of any WCAS Director.
(b) WCAS hereby agrees that, during the period commencing on the date
hereof and continuing until the termination of this Agreement, at any
stockholders' meeting of the Company at which any of the following matters is
submitted to a vote of the stockholders, it shall vote (or cause to be voted)
its shares of Company Common Stock and Company Preferred Stock voting on an
as-converted basis (or shall execute and deliver a written consent pursuant to
Section 351.273 of the Missouri Code):
1
(i) in favor of any director nominated, appointed or selected as a
Company Director in accordance with Section 6.02 of the Purchase
Agreement; and
(ii) against any action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially
adversely affect the approval by the stockholders of the Company of
the actions described in (i), including any action which seeks to
cause the removal of any Company Director.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
Stockholders represent and warrant to the Purchasers as follows:
(a) Schedule I sets forth, opposite each Stockholder's name, the
number and kind of Voting Securities of which such Stockholder is the record or
beneficial owner. Each such Stockholder is the record or beneficial owner of
such Securities and has entered into no other voting agreements or commitments
with respect thereto, other than the trust instruments, Company stock option
agreements and Company employee benefit plans governing the Stockholder's
beneficial ownership of such securities.
(b) Each Stockholder has full power and authority to make, enter into
and carry out the terms of this Agreement.
SECTION 3. COVENANTS. The parties to this Agreement hereby agree that
they will not make transfers of Company Common Stock to third parties for the
purposes of circumventing the voting agreements contained in Section 1 hereof.
SECTION 4. EFFECTIVENESS AND TERMINATION. This Agreement shall
automatically terminate and be of no further force or effect on August 31, 2008.
Upon such termination, except for any rights any party may have in respect of
any breach by any other party of its obligations hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
SECTION 5. MISCELLANEOUS.
(a) Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of its obligations under this Agreement. Without limiting the generality of the
foregoing, none of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
if such action would materially impair the ability of such party to effectuate,
carry out or comply with all of the terms of this Agreement.
(b) Notices, Etc. All notices, requests, instructions and other
documents that are required to be or may be given or delivered pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if delivered by hand or national overnight courier service, transmitted
by facsimile or mailed by registered or certified mail, postage prepaid, as
follows:
If to WCAS, to it at:
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx XX, X.X.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
If to the Stockholders, to them at:
c/o W. Xxxxxx Xxxxx XX
0000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxxxxx & Xxxxxx L.L.P.
0000 Xxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
or to such other address as such party shall have designated by notice received
by the other party.
(c) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or, except as expressly set
forth in Section 4, terminated, except by an instrument in writing signed by
each party hereto.
(d) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns; provided, that neither the rights nor the
obligations of any party may be assigned or delegated without the prior written
consent of the other parties, and provided, further, that this Agreement shall
be binding upon transferees of Company Common Stock and Company Preferred Stock
who are Affiliates of the transferor with respect to the shares so transferred
and shall not be binding upon any transferee who is not an Affiliate of the
transferor or any transferee who acquires shares through sales by the transferor
in the open market. It shall be a condition to any transfer by a party hereto of
shares of Company Common Stock or Company Preferred Stock to an Affiliate of the
transferor that the transferee sign an instrument agreeing to be bound by this
Agreement.
(e) Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter.
(f) Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law; provided, that in
such event, the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(g) Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief or any requirement for a bond.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of and shall not be enforceable by any person or entity who or
which is not a party hereto.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(l) Governing Law. This Agreement and all disputes arising out of or
relating to this Agreement, its subject matter, the performance by the parties
of their respective obligations hereunder or the claimed breach hereof, whether
in tort, contract or otherwise, shall be governed by and construed in accordance
with the internal laws of the State of Missouri without giving effect to its
choice of law principles.
IN WITNESS WHEREOF, the parties have duly executed this Voting
Agreement as of the date first above written.
WELSH, CARSON, XXXXXXXX &
XXXXX IX, L.P.
BY: WCAS IX Associates LLC,
Its General Partner
By: /s/ Xxxxxxxx X. Rather
____________________________________
Name: Xxxxxxxx X. Rather
Title: Managing Member
/s/ X. X. Xxxxx
_________________________________________
X.X. XXXXX, as trustee of the Trusts
for which he is acting as Trustee
identified on Schedule I
UMB BANK, N.A., as Trustee of the Trusts
for which it is acting as Trustee
identified on Schedule I
BY: /s/ Xxxx X. Xxxxxx
____________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Attest: /s/ Xxxxx Xxxxxx
________________________________
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
/s/ W. Xxxxxx Xxxxx XX
_________________________________________
W. XXXXXX XXXXX XX, individually, as
Custodian for his children under the Kansas
UGTMA and as Trustee of the Trust for
which he is listed as Trustee on Schedule I
/s/ Xxxxx X. Xxxxxx
_________________________________________
XXXXX X. XXXXXX, as Trustee of the
Trust for which she is listed as Trustee
on Schedule I
SCHEDULE I
Company Common Stock Ownership
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Number of Shares
Record/Beneficial Owner Beneficially Owned
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Xxxxxxx X. Xxxxx Trust dated September 29, 1964 for
the benefit of X. X. Xxxxx (Account Number 24-0039-00-8) 60,649
X. X. Xxxxx and UMB Bank, N.A., Co-trustees
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Xxxxxxx X. Xxxxx Trust dated December 24, 1958 for the
benefit of X.X. Xxxxx (Account Number 23-2305-00-3) 168,234
X. X. Xxxxx and UMB Bank, N.A., Co-trustees
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Xxxxxxx X. Xxxxx Restatement of Trust Agreement dated
April 12, 1992 901,695
X. X. Xxxxx, Trustee
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Xxxxxxx X. Xxxxx Trust dated September 29, 1964 for the
benefit of Xxxxxxx Xxxxxxxx (Account Number 24-0042-00-2) 60,648
X. X. Xxxxx and UMB Bank, N.A., Co-trustees
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Xxxxxxx X. Xxxxx Trust dated December 24, 1958 for the
benefit of Xxxxxxx Xxxxxxxx (Account Number 24-2303-00-8) 126,924
X. X. Xxxxx and UMB Bank, N.A., Co-trustees
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X.X. Xxxxx Testamentary Trust for Xxxxxxx Xxxxxxxx dated
November 19, 1953 (Account Number 22-0226-00-5) 356,940
UMB Bank, N.A. and X. X. Xxxxx Co-Trustees
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Xxxxxxx X. Xxxxx Trust dated September 29, 1964 for
Xxxxxxx Xxxxx, heir to Xxxx Xxxxxxx (Account Number
24-0040-00-6) 60,649
UMB Bank, N.A. and X. X. Xxxxx Co-Trustees
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X. X. Xxxxx Trust for the benefit of Xxxxxxx Xxxxxxxx,
dated February 4, 1977 67,500
W. Xxxxxx Xxxxx XX and Xxxxx Xxxxx Xxxxxx, Co-Trustees
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W. Xxxxxx Xxxxx XX as custodian for his children under
Kansas UGTMA. 31,773
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W. Xxxxxx Xxxxx XX individually 172,145
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Total Beneficial Ownership 2,007,157
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