VOTING AND SUPPORT AGREEMENT
Exhibit
5
EXECUTION
VERSION
This
VOTING AND SUPPORT AGREEMENT (this "Agreement") is
entered into as of January 10, 2008, by and among Employers Holdings, Inc.,
a
Nevada corporation ("Parent"), and WCAS
Healthcare Partners, L.P. ("Shareholder"). Parent
and Shareholder are sometimes referred to herein as a "Party" and
collectively as the "Parties".
WITNESSETH:
WHEREAS,
as of the date hereof, Shareholder "beneficially owns" (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.01
per
share (the "Common
Stock"), of AmCOMP Incorporated, a Delaware corporation (the "Company"),
set forth
opposite Shareholder's name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common Stock
the
voting power over which is acquired by Shareholder during the period from and
including the date hereof through and including the date on which this Agreement
is terminated in accordance with its terms (such period, the "Voting Period"), are
collectively referred to herein as the "Subject
Shares");
WHEREAS,
Parent, Sapphire Acquisition Corp., a wholly-owned subsidiary of Parent ("Acquisition Sub"),
and the Company propose to enter into an Agreement and Plan of Merger, dated
as
of the date hereof (as the same may be amended from time to time, the "Merger Agreement"),
pursuant to which Acquisition Sub will merge with and into the Company, with
the
Company surviving as a wholly-owned subsidiary of Parent (the "Merger");
and
WHEREAS,
as a condition to the willingness of Parent and Acquisition Sub to enter into
the Merger Agreement, and as an inducement and in consideration therefor,
Shareholder is executing this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
Parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Capitalized
Terms. For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement. For the avoidance of doubt, the term "Affiliate," as used
in this Agreement, shall have the meaning ascribed to such term in the Merger
Agreement.
ARTICLE
II
VOTING
AGREEMENT AND
IRREVOCABLE PROXY
Section
2.1 Agreement
to Vote the Subject Shares. Subject
to Section 2.3, Section 2.4 and Section 2.5, Shareholder hereby unconditionally
and irrevocably agrees that, during the Voting Period, at any duly called
meeting of the stockholders of the Company (or any adjournment or postponement
thereof), and in any action by written consent of the stockholders of the
Company, Shareholder shall, if a meeting is held, appear at the meeting, in
person or by proxy, or otherwise cause its Subject Shares to be counted as
present thereat for purposes of establishing a quorum, and it shall vote or
consent (or cause to be voted or consented), in person or by proxy, all of
its
Subject Shares (a) in favor of the adoption of the Merger Agreement and approval
of the Merger and the other transactions contemplated by the Merger Agreement
(and any actions required in furtherance thereof), (b) against any action,
proposal, transaction or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement or of Shareholder contained
in
this Agreement, and (c) against the following actions or proposals (other than
the transactions contemplated by the Merger Agreement): (i) any
Company Takeover Proposal or any proposal in opposition to approval of the
Merger Agreement or in competition with or materially inconsistent with the
Merger Agreement; and (ii) (A) any change in the persons who constitute the
Board); (B) any material change in the present capitalization of the Company
or
any amendment of the Certificate of Incorporation or Bylaws; (C) any change
in
the Company's corporate structure or business; or (D) any other action or
proposal involving the Company or any Company Subsidiary that is intended,
or
could reasonably be expected, to prevent, impede, interfere with, delay,
postpone or adversely affect the transactions contemplated by the Merger
Agreement or could reasonably be expected to result in any of the conditions
to
the Company's obligations under the Merger Agreement not being
fulfilled. Subject to Section 2.5, Shareholder agrees not to, and
shall cause its Representatives not to, enter into any agreement, commitment
or
arrangement with any Person the effect of which would be inconsistent with
or
violative of the provisions and agreements contained in this Article
II.
Section
2.2 Effect
of Change of
Recommendation, Withdrawal of Recommendation or Company
Breach. For
the avoidance of doubt, Shareholder agrees that, during the Voting Period,
the
obligations of Shareholder specified in Section 2.1 shall not be affected by
any
(a) Change of Recommendation, (b) Withdrawal of Recommendation or (c) breach
by
the Company of any of its representations, warranties, agreements or covenants
set forth in the Merger Agreement.
Section
2.3 Grant
of Irrevocable
Proxy. Shareholder
hereby appoints Parent and any designee of Parent, and each of them
individually, as Shareholder's agent, proxy and attorney-in-fact, with full
power of substitution and resubstitution in the premises, to vote or act by
written consent during the Voting Period with respect to any and all of the
Subject Shares in accordance with Section 2.1, in each case subject to the
receipt of any Requisite Regulatory Approvals, if
required. Shareholder shall promptly cause a copy of this Agreement
to be deposited with the Company at its principal place of
business. Shareholder shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of
2
this
proxy. Shareholder affirms that the irrevocable proxy set forth in
this Article II is given in connection with, and in consideration of, the
execution of the Merger Agreement, and that such irrevocable proxy is given
to
Parent by Shareholder to secure the performance of the duties of Shareholder
under this Agreement.
Section
2.4 Nature
of Irrevocable
Proxy. The
proxy and power of attorney granted pursuant to Section 2.3 to the Parent by
Shareholder shall (a) be irrevocable during the term of this Agreement, (b)
be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy, (c) revoke any and all prior proxies and powers of attorney
granted by Shareholder with respect to the Subject Shares and (d) not give
any
subsequent proxy or power of attorney with respect to the Subject Shares, other
than a proxy solicited by the Proxy Statement to the extent necessary to permit
Shareholder to comply with Section 2.1. The power of attorney granted
by Shareholder herein is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of Shareholder and shall be binding
upon the heirs, personal representatives, successors or assigns of
Shareholder. The proxy and power of attorney granted hereunder shall
terminate upon the termination of this Agreement. It is agreed that
Parent and any designee of Parent shall use the irrevocable proxy granted hereby
only in accordance with applicable Law. For the avoidance of doubt,
the vote of Parent or any designee of Parent shall control in any conflict
between the vote by Parent or any designee of Parent of the Subject Shares
and
any other vote by Shareholder of the Subject Shares.
Section
2.5 No
Restrictions on
Obligation as Director or Officer. The
Parties acknowledge that Shareholder (or a Representative of Shareholder) is
a
director and/or officer of the Company and, in such capacity, owes a fiduciary
duty to the Company and its stockholders. Notwithstanding anything to
the contrary contained in this Agreement, nothing in this Agreement shall be
construed to impose any obligation or limitation on votes or actions taken
by
any director, officer, general partner, member, employee, agent or other
representative (collectively, "Representatives") of
Shareholder in his or her capacity as a director or officer of the Company,
including pursuant to Section 4.4(e) of the Merger Agreement.
ARTICLE
III
COVENANTS
Section
3.1 Generally.
(a)
Shareholder
agrees that during the Voting Period, except as contemplated by the terms of
this Agreement, it shall not, and shall cause its Representatives not to,
without the Parent's prior written consent, (i) offer for sale, sell (including
short sales), transfer, tender, pledge, encumber, assign or otherwise dispose
of
(including by gift) (collectively, a "Transfer"), or enter
into any contract, option, derivative, hedging or other agreement or arrangement
or understanding (including any profit-sharing arrangement) with respect to,
or
consent to, a Transfer of, any or all of the Subject Shares; (ii) grant any
proxies or powers of attorney with respect to any or all of the Subject Shares;
(iii) permit to exist any lien of any nature whatsoever with respect to any
or
all of the Subject Shares; or (iv) take any action that would have the effect
of
preventing, impeding, interfering with or adversely affecting Shareholder's
ability to perform its obligations under this Agreement.
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(b)
In
the event of a stock dividend or distribution, or any change in the Common
Stock
by reason of any stock dividend or distribution, split-up, recapitalization,
combination, conversion, exchange of shares or the like, the term "Subject
Shares" shall be deemed to refer to and include the Subject Shares as well
as
all such stock dividends and distributions and any securities into which or
for
which any or all of the Subject Shares may be changed or exchanged or which
are
received in such transaction.
(c)
Shareholder
agrees, while this Agreement is in effect, not to take or agree or commit to
take any action that would make any representation and warranty of Shareholder
contained in this Agreement inaccurate in any material respect.
Section
3.2
Standstill Obligations
of the Shareholder. Shareholder
covenants and agrees with Parent that, during the Voting Period:
(a)
Shareholder
shall not, nor shall Shareholder permit any of its Representatives to, nor
shall
Shareholder act in concert with or permit any of its Representatives to act
in
concert with any Person to make, or in any manner participate in, directly
or
indirectly, a "solicitation" of "proxies" or consents (as such terms are used
in
the rules of the SEC) or powers of attorney or similar rights to vote, or seek
to advise or influence any Person with respect to the voting of, any shares
of
Common Stock in connection with any vote or other action on any matter, other
than to recommend that stockholders of the Company vote in favor of adoption
of
the Merger Agreement, the Merger and the other transactions contemplated by
the
Merger Agreement (and any actions required in furtherance thereof and otherwise
as expressly provided by Article II of this Agreement)
(b)
Shareholder
shall not, nor shall Shareholder permit any Representative of Shareholder to,
nor shall Shareholder act in concert with or permit any Representative of
Shareholder to act in concert with any Person to, deposit any of the Subject
Shares in a voting trust or subject any of the Subject Shares to any arrangement
or agreement with any Person with respect to the voting of the Subject Shares,
except as provided by Article II of this Agreement.
(c)
Shareholder
shall not, nor shall Shareholder permit any Representative of Shareholder to,
nor shall Shareholder act in concert with or permit any Representative of
Shareholder to act in concert with any Person to, directly or indirectly,
initiate, solicit or knowingly encourage or facilitate (including, in each
case,
by way of furnishing information) any inquiries or the making of any proposal
or
offer with respect to, or any indication of interest in, any Company Takeover
Proposal, engage in any negotiations or discussions concerning any Company
Takeover Proposal, or provide any non-public information or data to any Person
(other than Parent, Acquisition Sub or any of Affiliates of Parent) that has
made, or to Shareholder's knowledge, is considering making a Company Takeover
Proposal or any Representatives thereof, or make any public statements with
respect to any Company Takeover Proposal or any matter that relates to,
supports, or could reasonably be expected to lead to any Company Takeover
Proposal.
4
(d)
Shareholder
shall, and shall (subject to Section 2.5) cause any Representative of
Shareholder to, cease immediately and cause to be terminated any and all
existing discussions, conversations, negotiations and other communications
with
any Person conducted heretofore with respect to any Company Takeover Proposal
or
any matter that relates to, supports, or could reasonably be expected to lead
to
any Company Takeover Proposal. Shareholder shall, and shall not
(subject to Section 2.5) permit any of its Representatives to, directly or
indirectly, engage in any activity which would be prohibited pursuant to Section
4.4(b) of the Merger Agreement if engaged in by the Company.
Section
3.3
Appraisal
Rights. Shareholder
agrees not to seek appraisal or assert any rights of dissent from the Merger
that it may have under Section 262 of the DGCL (or otherwise) and, to the extent
permitted by applicable Law, Shareholder hereby waives any rights of appraisal
or rights to dissent from the Merger that it may have under Section 262 of
the
DGCL.
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES OF SHAREHOLDER
Shareholder
hereby represents and warrants to Parent as follows:
Section
4.1
Binding
Agreement. Shareholder
(a) if a natural person, is of legal age to execute this Agreement and is
legally competent to do so and (b) if not a natural person, (i) is a
corporation, limited liability company or partnership duly organized and validly
existing under the laws of the jurisdiction of its organization and (ii) has
all
necessary power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Shareholder has been duly authorized by all necessary corporate,
limited liability or partnership action on the part of
Shareholder. This Agreement, assuming due authorization, execution
and delivery hereof by Parent, constitutes a legal, valid and binding obligation
of Shareholder, enforceable against Shareholder in accordance with its terms
(except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditor's rights, and to general
equitable principles).
Section
4.2
Ownership of
Shares. Schedule
I sets forth opposite Shareholder's name the number of shares of Common Stock
over which Shareholder has record and beneficial ownership as of the date
hereof. As of the date hereof, Shareholder is the lawful owner of the
shares of Common Stock denoted as being owned by Shareholder on Schedule I
and
has the sole power to vote or cause to be voted such
shares. Shareholder does not own or hold any right to acquire any
additional shares of any class of capital stock of the Company or other
securities of the Company or any interest therein or any voting rights with
respect to any securities of the Company other than the Subject
Shares. Shareholder has good and valid title to the Common Stock
denoted as being owned by Shareholder on Schedule I, free and clear of any
and
all pledges, mortgages, Encumbrances, charges, proxies, voting agreements,
liens, adverse claims, options, security interests and demands of any nature
or
kind whatsoever, other than those created by this Agreement. There
are no claims for finder's fees or brokerage commission or other like payments
in connection with this Agreement or the transactions contemplated hereby
payable by Shareholder pursuant to arrangements made by
Shareholder.
5
Section
4.3
No
Conflicts.
(a)
No
filing with any Governmental Authority, and no authorization, consent or
approval of any other Person is necessary for the execution of this Agreement
by
Shareholder and the consummation by Shareholder of the transactions contemplated
hereby.
(b)
None
of the execution and delivery of this Agreement by Shareholder, the consummation
by Shareholder of the transactions contemplated hereby or compliance by
Shareholder with any of the provisions hereof shall (i) conflict with or result
in any breach of the organizational documents of Shareholder, as applicable,
(ii) result in, or give rise to, a violation or breach of or a default under
any
of the terms of any material contract, understanding, agreement or other
instrument or obligation to which Shareholder is a party or by which Shareholder
or any of the Subject Shares or assets may be bound, or (iii) violate any
applicable Order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be expected
to impair Shareholder's ability to perform its obligations under this
Agreement.
Section
4.4 Company
Takeover
Proposal. Shareholder
represents that it is not, and (subject to Section 2.5) no Representative of
Shareholder is, engaged in any discussions or negotiations with any Person
(other than Parent, Acquisition Sub or any of Affiliates of Parent) with respect
to any Company Takeover Proposal or any matter that relates to, supports, or
could reasonably be expected to lead to any Company Takeover
Proposal.
Section
4.5 Reliance
by
Parent. Shareholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the execution and delivery of this Agreement by
Shareholder.
ARTICLE
V
REPRESENTATIONS
AND
WARRANTIES OF PARENT
Parent
hereby represents and warrants to the Shareholders as follows:
Section
5.1
Binding
Agreement. Parent
is a Nevada corporation duly organized and validly existing under the laws
of
the jurisdiction of its organization. Parent has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Parent have been duly authorized by all necessary corporate action
on
the part of Parent. This Agreement, assuming due authorization,
execution and delivery hereof by Shareholder, constitutes a legal, valid and
binding obligation of Parent enforceable against Parent in accordance with
its
terms (except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditor's rights, and to general
equitable principles).
6
Section
5.2
No
Conflicts.
(a)
No
filing with any Governmental Authority, and no authorization, consent or
approval of any other Person is necessary for the execution of this Agreement
by
Parent and the consummation by Parent of the transactions contemplated
hereby.
(b)
None
of the execution and delivery of this Agreement by Parent, the consummation
by
Parent of the transactions contemplated hereby or compliance by Parent with
any
of the provisions hereof shall (i) conflict with or result in any breach of
the
organizational documents of Parent, (ii) result in, or give rise to, a violation
or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Parent
is a
party or by which Parent or any of its assets may be bound, or (iii) violate
any
applicable Order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be expected
to impair Parent's ability to perform its obligations under this
Agreement.
Section
5.3
Reliance
by the
Shareholder. Parent
understands and acknowledges that Shareholder is entering into this Agreement
in
reliance upon the execution and delivery of the Merger Agreement by
Parent.
ARTICLE
VI
TERMINATION
Section
6.1 Termination. This
Agreement shall automatically terminate, and none of Parent or Shareholder
shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no effect upon the earliest to occur of (a) the mutual written
consent of Parent and Shareholder, (b) the Effective Time, (c) the date of
termination of the Merger Agreement in accordance with its terms, (d) the date
of any change or amendment to the Merger Agreement that results in any decrease
in the Merger Consideration, or (e) October 31, 2009. The termination
of this Agreement shall not prevent any Party hereunder from seeking any
remedies (at law or in equity) against another Party hereto or relieve such
Party from liability for such Party's breach of any terms of this
Agreement. Notwithstanding anything to the contrary herein, the
provisions of Article VII (other than Section 7.2) shall survive the termination
of this Agreement.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Publication. Shareholder
hereby permits the Company and Parent to publish and disclose in any forms,
schedules or other documents to be filed with the SEC (including the Proxy
Statement) Shareholder's identity and ownership of the Subject Shares and the
nature of its commitments, arrangements and understandings pursuant to this
Agreement.
Section
7.2 Further
Assurances. From
time to time, at the other Party's request and without further consideration,
each Party shall execute and deliver such additional documents and take all
such
further action as may be reasonably necessary or desirable to consummate the
transactions contemplated by this Agreement.
7
Section
7.3 Fees
and
Expenses. Each
of the Parties shall be responsible for its own fees and expenses (including,
without limitation, the fees and expenses of investment bankers, accountants
and
counsel) in connection with the entering into of this Agreement and the
consummation of the transactions contemplated hereby and by the Merger
Agreement.
Section
7.4
Amendments, Waivers,
etc. This
Agreement may not be amended, changed, supplemented, waived or otherwise
modified, except upon the execution and delivery of a written agreement executed
by each of the Parties hereto. 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.
Section
7.5 Notices. All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt) by delivery in Person, by facsimile or by registered or certified
mail
(postage prepaid, return receipt requested) to the respective Parties at the
following addresses (or at such other address for a Party as shall be specified
by like notice):
(a)
If
to Parent or Acquisition Sub:
0000
Xxxxxxx Xxxxx
Xxxx,
Xxxxxx 00000
Attn: Xxxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax:
(000) 000-0000
with
a copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
8
(b)
If
to Shareholder:
WCAS
Healthcare Partners, L.P.
000
Xxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx, XX 00000
Attn: Xxxxxxxx
Rather
Phone: (000)
000-0000
Fax: (000)
000-0000
with
a copy (which shall not constitute notice) to:
Ropes
& Xxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxx
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Section
7.6 Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
7.7 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the Parties as closely
as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section
7.8
Entire
Agreement;
Assignment. This
Agreement (together with the Merger Agreement, to the extent referred to herein,
and Schedule I) constitutes the entire agreement among the Parties with respect
to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the Parties, or any of them, with
respect to the subject matter hereof. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent
of
the other Party, except that Parent may assign all or any of its rights and
obligations hereunder to any direct or indirect wholly-owned Subsidiary of
Parent.
Section
7.9
Parties
in
Interest. This
Agreement shall be binding upon and inure solely to the benefit of each Party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
Section
7.10
Interpretation. When
reference is made in this Agreement to a Section, such reference shall be to
a
Section of this Agreement unless otherwise indicated. Whenever the
words "include", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof,"
"herein," "hereby"
and "hereunder" and words of
9
similar
import when used in this Agreement shall refer to this Agreement as a whole
and
not to any particular provision of this Agreement. The word "or" shall not be exclusive. Whenever used in this
Agreement, any noun or pronoun shall be deemed to include the plural as well
as
the singular and to cover all genders. This Agreement shall be
construed without regard to any presumption or rule requiring construction
or
interpretation against the Party drafting or causing any instrument to be
drafted.
Section
7.11 Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware.
Section
7.12 Specific
Performance;
Jurisdiction. 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 their
specific terms or were otherwise breached. It is accordingly agreed
that the Parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the Court of Chancery of the State of Delaware or, if
under
applicable law exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of Delaware, this
being in addition to any other remedy to which such Party is entitled at law
or
in equity. In addition, each of the Parties hereto (a) consents to
submit itself to the personal jurisdiction of the Court of Chancery of the
State
of Delaware or any court of the United States located in the State of Delaware
in the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or
defeat such personal jurisdiction by motion or other request for leave from
any
such court, (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any
court
other than the Court of Chancery of the State of Delaware or, if under
applicable law exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of Delaware and
(d)
consents to service being made through the notice procedures set forth in
Section 7.5. Each of the Shareholder and Parent hereby agrees that
service of any process, summons, notice or document by U.S. registered mail
to
the respective addresses set forth in Section 7.5 shall be effective service
of
process for any proceeding in connection with this Agreement or the transactions
contemplated hereby.
Section
7.13
Counterparts. This
Agreement may be executed in counterparts (including by facsimile), each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section
7.14
No Partnership,
Agency
or Joint Venture. This
Agreement is intended to create a contractual relationship between Shareholder,
on the one hand, and Parent, on the other hand, and is not intended to create,
and does not create, any agency, partnership, joint venture or any like
relationship between or among the parties hereto. Without limiting
the generality of the foregoing sentence, Shareholder (a) is entering into
this
Agreement solely on its own behalf and shall not have any obligation to perform
on behalf of any other holder of Common Stock or any liability (regardless
of
the
10
legal
theory advanced) for any breach of this Agreement by any other holder of Common
Stock and (b) by entering into this Agreement does not intend to form a "group"
for purposes of Rule 13d-5(b)(1) of the Exchange Act or any other similar
provision of applicable Law. To the knowledge of Shareholder,
Shareholder is not affiliated with any other holder of Common Stock entering
into a voting agreement with Parent in connection with the Merger Agreement
and
has acted independently regarding its decision to enter into this Agreement
and
regarding its investment in the Company.
[Execution
page
follows.]
11
IN
WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly
executed as of the day and year first above written.
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By:
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/s/ Xxxxxxx X. Xxxxx | |||
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Name:
|
Xxxxxxx
X. Xxxxx
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
WCAS
HEALTHCARE PARTNERS, L.P.
|
||||
|
By
WCAS HC Partners
General
Partner
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||||
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By:
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/s/ Xxxxxxxx X. Rather | |||
|
Name:
|
Xxxxxxxx X. Rather | |||
|
Title:
|
Attorney-in-Fact | |||
SCHEDULE
I
Ownership
of Common
Stock
|
Shareholder
|
Number
of Shares
|
|
|
WCAS
Healthcare Partners, L.P.
|
24,566
|
|
