VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of November 21,
2005, by and among SPECIALIZED HEALTH PRODUCTS INTERNATIONAL, INC., a Delaware
corporation ("Parent"), MED-DESIGN CORPORATION, a Delaware corporation (the
"Company"), and the undersigned stockholder of Parent or the Company
("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
shares of stock of the Company or Parent.
B. Parent, Mammoth Acquisition Sub, Inc., a Delaware corporation
("Merger Sub"), Mammoth Acquisition Sub, LLC, a Delaware limited liability
company ("LLC") and the Company are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "Merger Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub into the Company, with the Company surviving such merger, and the subsequent
merger of the Company into the LLC, with the LLC surviving such subsequent
merger (collectively, the "Merger").
C. In the Merger, each outstanding share of common stock of the Company
("Company Common Stock") is to be converted into the right to receive a number
of shares of common stock of Parent ("Parent Common Stock") equal to the
Exchange Ratio (as defined in the Merger Agreement).
D. Certain stockholders of Parent and the Company are entering into
voting agreements in order to induce Parent and the Company to enter into the
Merger Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) Stockholder shall be deemed to "own" or to have acquired
"ownership" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(b) "Proxy Expiration Date" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated or (ii) the date upon which the
Merger becomes effective.
(c) "Subject Securities" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by Stockholder as
of the date of this Agreement; (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires ownership during the period from the date of this
Agreement through the Proxy Expiration Date; (iii) all securities of Parent
(including all shares of Parent Common Stock and all options, warrants and other
rights to acquire shares of Parent Common Stock) owned by Stockholder as of the
date of this Agreement; and (iv) all additional securities of Parent (including
all additional shares of Parent Common Stock and all additional options,
warrants and other rights to acquire shares of Parent Common Stock) of which
Stockholder acquires ownership during the period from the date of this Agreement
through the Proxy Expiration Date.
(d) A Person (as defined in the Merger Agreement) shall be deemed to
have a effected a "Transfer" of a security if such Person directly or
indirectly: (i) sells, pledges, encumbers, grants an option with respect to,
transfers or disposes of such security or any interest in such security to any
Person other than Parent; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein to any Person other than Parent; or (iii) reduces such Person's
beneficial ownership of, interest in or risk relating to such security.
2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 Restriction on Transfer of Subject Securities. Subject to Section
2.3, during the period from the date of this Agreement through the Proxy
Expiration Date, Stockholder shall not, directly or indirectly, cause or permit
any Transfer of any of the Subject Securities to be effected.
2.2 Restriction on Transfer of Voting Rights. During the period from
the date of this Agreement through the Proxy Expiration Date, Stockholder shall
ensure that (a) none of the Subject Securities is deposited into a voting trust;
and (b) no proxy is granted, and no voting agreement or similar agreement is
entered into, with respect to any of the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of
Subject Securities by Stockholder (a) if Stockholder is an individual (i) to any
member of Stockholder's immediate family, or to a trust for the benefit of
Stockholder or any member of Stockholder's immediate family, or (ii) upon the
death of Stockholder, or (b) if Stockholder is a partnership or limited
liability company, to one or more partners or members of Stockholder or to an
affiliated corporation under common control with Stockholder; provided, however,
that a transfer referred to in this sentence shall be permitted only if, as a
precondition to such transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by all of the terms of
this Agreement.
3. VOTING OF SHARES
3.1 Voting Covenant by Company Stockholders. If Stockholder is a
stockholder of the Company or is the beneficial owner of voting securities of
the Company, Stockholder hereby agrees that, prior to the Proxy Expiration Date,
at any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, Stockholder shall cause the applicable Subject
Securities to be voted:
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(a) in favor of the adoption of the Merger Agreement and in favor of
any action in furtherance thereof; and
(b) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any subsidiary of the Company; (B) any
sale, lease, sublease, license, sublicense or transfer of a material portion of
the rights or other assets of the Company or any subsidiary of the Company; (C)
any reorganization, recapitalization, dissolution or liquidation of the Company
or any subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's certificate of
incorporation or bylaws; (F) any material change in the capitalization of the
Company or the Company's corporate structure; and (G) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement.
Prior to the Proxy Expiration Date, Stockholder (if Stockholder is a stockholder
of the Company or a beneficial owner of voting securities of the Company) shall
not enter into any agreement or understanding with any Person to vote or give
instructions in any manner inconsistent with clause "(a)" or clause "(b)" of the
preceding sentence.
3.2 Voting Covenant by Parent Stockholders. If Stockholder is a
stockholder of Parent or is the beneficial owner of voting securities of Parent,
Stockholder hereby agrees that, prior to the Proxy Expiration Date, at any
meeting of the stockholders of Parent, however called, and in any written action
by consent of stockholders of Parent, unless otherwise directed in writing by
Parent, Stockholder shall cause the applicable Subject Securities to be voted:
(a) in favor of the issuance of Parent Common Stock in the Merger, the
Parent Reverse Stock Split (as defined in the Merger Agreement) and in favor of
any action in furtherance of any of the foregoing; and
(b) against the following actions (other than the Merger, the
transactions contemplated by the Merger Agreement, the Parent Reverse Stock
Split and any name change recommended by the board of directors of Parent): (A)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving Parent or any subsidiary of Parent; (B) any
sale, lease, sublease, license, sublicense or transfer of a material portion of
the rights or other assets of Parent or any subsidiary of Parent; (C) any
reorganization, recapitalization, dissolution or liquidation of Parent or any
subsidiary of Parent; (D) any change in a majority of the board of directors of
Parent; (E) any amendment to Parent's certificate of incorporation or bylaws;
(F) any material change in the capitalization of Parent or Parent's corporate
structure; and (G) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the Merger
Agreement or this Agreement.
Prior to the Proxy Expiration Date, Stockholder (if Stockholder is a stockholder
of Parent or a beneficial owner of voting securities of Parent) shall not enter
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into any agreement or understanding with any Person to vote or give instructions
in any manner inconsistent with clause "(a)" or clause "(b)" of the preceding
sentence.
4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal or
any dissenters' rights relating to the Merger that Stockholder may have by
virtue of, or with respect to, any Subject Securities.
5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this
Agreement through the Proxy Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that he, she or its Representatives (as
defined in the Merger Agreement) do not, directly or indirectly: (i) solicit,
initiate, encourage, induce or facilitate the making, submission or announcement
of any Company Acquisition Proposal (as defined in the Merger Agreement) or
Parent Acquisition Proposal (as defined in the Merger Agreement) or take any
action that could reasonably be expected to lead to a Company Acquisition
Proposal or Parent Acquisition Proposal; (ii) furnish any information regarding
the Company Entities or Parent Entities (as such terms are defined in the Merger
Agreement) to any Person in connection with or in response to a Company
Acquisition Proposal or Parent Acquisition Proposal or an inquiry or indication
of interest that could lead to a Company Acquisition Proposal or Parent
Acquisition Proposal; (iii) engage in discussions or negotiations with any
Person with respect to any Company Acquisition Proposal or Parent Acquisition
Proposal; (iv) approve, endorse or recommend any Company Acquisition Proposal or
Parent Acquisition Proposal; or (v) enter into any letter of intent or similar
document or any Contract (as defined in the Merger Agreement) contemplating or
otherwise relating to any Company Acquisition Transaction (as defined in the
Merger Agreement) or Parent Acquisition Transaction (as defined in the Merger
Agreement). Stockholder shall immediately cease and discontinue, and Stockholder
shall ensure that he, she or its Representatives immediately cease and
discontinue, any existing discussions with any Person that relate to any Company
Acquisition Proposal or Parent Acquisition Proposal. Stockholder does not make
any agreement or understanding in his or her capacity as a director or officer.
Stockholder is executing this Agreement solely in his or her capacity as a
stockholder, and nothing herein shall limit or affect any actions taken by
Stockholder in his or her capacity as a director or officer of Parent or the
Company, as applicable.
6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent and the Company as
follows:
6.1 Authorization, etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
to perform Stockholder's obligations hereunder and thereunder. This Agreement
has been duly executed and delivered by Stockholder and constitutes legal, valid
and binding obligations of Stockholder, enforceable against Stockholder in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
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If Stockholder is a corporation, then Stockholder is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it was organized. If Stockholder is a general or limited
partnership, then Stockholder is a partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized. If Stockholder is a limited liability company, then Stockholder is a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it was organized.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or judgment applicable
to Stockholder or by which Stockholder's properties are or may be bound or
affected; or (ii) result in or constitute (with or without notice or lapse of
time) any breach of or default under, or give to any other Person (with or
without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to any Contract to which Stockholder is a party or by which
Stockholder or any of Stockholder's affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not, require any
consent or approval of any Person.
6.3 Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock or Parent Common Stock,
as applicable, set forth under the heading "Shares Held of Record" on the
signature page hereof; (b) Stockholder holds (free and clear of any encumbrances
or restrictions) the options, warrants and other rights to acquire shares of
Company Common Stock or Parent Common Stock, as applicable, set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
owns the additional securities of the Company or Parent, as applicable, set
forth under the heading "Additional Securities Beneficially Owned" on the
signature page hereof; and (d) Stockholder does not directly or indirectly own
any shares of capital stock or other securities of the Company or Parent, as
applicable, or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any shares of capital stock or other securities of the
Company or Parent, as applicable, other than the shares and options, warrants
and other rights set forth on the signature page hereof.
7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 Stockholder Information. Stockholder hereby agrees to permit the
Parent Entities and Company Entities to publish and disclose in any press
release or security filing Stockholder's identity and ownership of shares of
Company Common Stock or Parent Common Stock, as applicable, and the nature of
Stockholder's commitments, arrangements and understandings under this Agreement.
7.2 Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
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assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Parent may request
for the purpose of carrying out and furthering the intent of this Agreement.
8. MISCELLANEOUS
8.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
8.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed), or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
if to Stockholder:
at the address set forth on the signature page
hereof; and
if to Parent, to:
Specialized Health Products International, Inc.
000 Xxxx 000 Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Chief Executive Officer
with a required copy to (which alone shall not constitute
notice):
Xxxxxx Godward LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
if to the Company, to:
The Med-Design Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board of Directors
with a required copy to (which alone shall not constitute
notice):
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
8.3 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
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situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is 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 invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the 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
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
8.4 Entire Agreement. This Agreement and any other documents delivered
by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings between the parties with respect
thereto. No addition to or modification of any provision of this Agreement shall
be binding upon either party unless made in writing and signed by both parties.
8.5 Assignment; Binding Effect. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and
Stockholder's successors and assigns and, if Stockholder is an individual, upon
Stockholder's heirs, estate, executors and personal representatives, and shall
inure to the benefit of Parent, the Company and their successors and assigns.
Without limiting any of the restrictions set forth in Section 2 or elsewhere in
this Agreement, this Agreement shall be binding upon any Person to whom any
Subject Securities are transferred. Nothing in this Agreement is intended to
confer on any Person (other than Parent, the Company and their successors and
assigns) any rights or remedies of any nature.
8.6 Independence of Obligations. The covenants and obligations of
Stockholder set forth in this Agreement shall be construed as independent of any
other agreement or arrangement between Stockholder, on the one hand, and the
Company or Parent, on the other. The existence of any claim or cause of action
by Stockholder against the Company or Parent shall not constitute a defense to
the enforcement of any of such covenants or obligations against Stockholder.
8.7 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement, Parent or
the Company, as applicable, shall be entitled (in addition to any other remedy
that may be available, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither Parent
nor the Company nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 8.7, and Stockholder
irrevocably waives any right he, she or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
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8.8 Non-Exclusivity. The rights and remedies of Parent or the Company
under this Agreement are not exclusive of or limited by any other rights or
remedies which Parent or the Company may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not alternative).
Without limiting the generality of the foregoing, the rights and remedies of
Parent or Company under this Agreement, and the obligations and liabilities of
Stockholder under this Agreement, are in addition to their respective rights,
remedies, obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations. Nothing in this Agreement shall
limit any of Stockholder's obligations, or the rights or remedies of Parent or
Company, under any affiliate agreement between Parent and Stockholder or between
Company and Stockholder, and nothing in any such affiliate agreement shall limit
any of Stockholder's obligations, or any of the rights or remedies of Parent or
Company, under this Agreement.
8.9 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) 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 laws thereof. In
any action between the parties arising out of or relating to this Agreement or
any of the transactions contemplated by this Agreement, all of the parties
irrevocably and unconditionally consent and submit to the jurisdiction and venue
of the state and federal courts located in the State of Delaware.
(b) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
8.10 Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Facsimile copies shall be deemed to be binding originals.
8.11 Captions. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
8.12 Attorneys' Fees. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Stockholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
8.13 Waiver. No failure on the part of Parent or the Company to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of Parent or the Company in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy. Parent or the Company
shall not be deemed to have waived any claim available to Parent or the Company
arising out of this Agreement, or any power, right, privilege or remedy of
Parent or Company, under this Agreement, unless the waiver of such claim, power,
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right, privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of Parent and Company; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
8.14 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" are intended to refer to Sections of this Agreement.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Parent, the Company and Stockholder have caused
this Agreement to be executed as of the date first written above.
SPECIALIZED HEALTH PRODUCTS INTERNATIONAL, INC.:
__________________________________________________
__________________________________________________
By _______________________________________________
Title_____________________________________________
MED-DESIGN CORPORATION:
__________________________________________________
__________________________________________________
By _______________________________________________
Title ____________________________________________
STOCKHOLDER:
__________________________________________________
By _______________________________________________
Name _____________________________________________
Title (if applicable) ____________________________
Address: ___________________________
___________________________
___________________________
Facsimile: ___________________________
Additional Securities
Shares Held of Record Options and Other Rights Beneficially Owned
--------------------- ------------------------ ------------------
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