STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated January 13, 2000 (this
"Agreement"), among ________________ ("Stockholder"), GS Capital Partners
III, L.P., GS Capital Partners III Offshore, L.P., Xxxxxxx, Xxxxx & Co.
Verwaltungs GMBH and Stone Street Fund 2000, LLC (collectively, the
"Purchaser").
WHEREAS, ProMedCo Management Company, a Delaware corporation (the
"Company"), and Purchaser, are contemporaneously herewith entering into a
Securities Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), which provides, among other things, for the acquisition by
Purchaser of certain securities of the Company upon the terms and subject
to the conditions set forth therein;
WHEREAS, as a condition to its willingness to enter into the
Purchase Agreement, Purchaser has requested that Stockholder make certain
agreements with respect to the shares of Common Stock beneficially owned by
Stockholder and listed under Stockholder's name on the signature page
hereto (the "Stockholder Shares"), upon the terms and subject to the
conditions hereof; and
WHEREAS, in order to induce Purchaser to enter into the Purchase
Agreement, Stockholder is willing to make certain agreements with respect
to the Stockholder Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Voting Agreements; Proxy.
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(a) For so long as this Agreement is in effect, in any meeting of
stockholders of the Company, however called, and in any action by consent
of the stockholders of the Company, Stockholder shall vote, or, if
applicable, give consents with respect to, all of the Stockholder Shares
(and any other shares of Common Stock over which Stockholder has voting
power) (collectively, "Shares") that are held on the record date applicable
thereto in favor of (i) the Purchase Agreement, (ii) the transactions
contemplated by the Purchase Agreement and (iii) any actions required in
furtherance thereof. Any such vote shall be cast or consent shall be given
in accordance with such procedures relating thereto as shall ensure that it
is duly counted for purposes of determining that a quorum is present and
for purposes of recording the results of such vote or consent.
Stockholder's execution and delivery of a proxy in accordance with Section
1(b) shall constitute full compliance with Stockholder's obligations
pursuant to this Section 1(a).
(b) Upon the written request of Purchaser, Stockholder, in
furtherance of the transactions contemplated hereby and by the Purchase
Agreement, and in order to secure the performance by Stockholder of its
duties under this Agreement, shall promptly execute, in accordance with the
provisions of Section 212 of the Delaware General Corporation Law, and
deliver to Purchaser an irrevocable proxy, substantially in the form
attached as Exhibit A hereto, and irrevocably appoint Purchaser or its
designees, with full power of substitution, its attorney and proxy to vote
or, if applicable, to give consent with respect to, all Shares with regard
to any of the matters referred to in Section 1(a) at any meeting of the
stockholders of the Company, however called, or in connection with any
action by written consent by the stockholders of the Company. Stockholder
acknowledges and agrees that (i) such proxy, if and when given, shall be
coupled with an interest, shall constitute, among other things, an
inducement for Purchaser to enter into the Purchase Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise
upon the occurrence of any event, except as provided in Section 14 hereof,
and (ii) that no subsequent proxies with respect to the Shares shall be
given (and if given shall not be effective), with respect to any of the
matters referred to in Section 1(a).
2. Covenants. During the term of this Agreement, Stockholder
agrees not to: (i) sell, transfer, pledge, assign, hypothecate, encumber,
tender or otherwise dispose of, or enter into any contract with respect to
the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender
or other disposition of, any Stockholder Shares; (ii) grant any proxies
with respect to any Shares, deposit any Shares into a voting trust or enter
into a voting or option agreement with respect to any Shares; (iii) take
any action, directly or indirectly through any of its affiliates (other
than the Company or any of its subsidiaries), which the Company is
prohibited from taking under Section 5.2 of the Purchase Agreement; or (iv)
take any action which would make any representation or warranty of
Stockholder herein untrue or incorrect or prevent, burden or materially
delay the consummation of the transactions contemplated by this Agreement.
3. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Purchaser that:
(a) Capacity; No Violations. Stockholder has the legal capacity
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Stockholder, and constitutes a valid and binding agreement of Stockholder
enforceable against Stockholder in accordance with its terms and such
execution and delivery and performance by Stockholder of this Agreement
will not (i) conflict with, require a consent, waiver or approval under, or
result in a breach or default under, any of the terms of any contract,
commitment or other obligation to which Stockholder is a party or by which
Stockholder is bound; (ii) violate any order, writ, injunction, decree or
statute, or any law, rule or regulation applicable to Stockholder or the
Shares; or (iii) result in the creation of, or impose any obligation on
Stockholder to create, any Encumbrance upon the Shares.
(b) Shares. As of the date of this Agreement, Stockholder is the
record holder of, and has good and valid title to, the Shares free and
clear of all Encumbrances. The Shares are the only shares of any class of
capital stock of the Company which Stockholder has the right, power or
authority (sole or shared) to sell or vote, and Stockholder does not have
any right to acquire, nor is it the beneficial owner of, any other shares
of any class of capital stock of the Company or any securities convertible
into or exchangeable or (except for stock options) exercisable for any
shares of any class of capital stock of the Company. There are no options
or rights to acquire, or other contracts (including proxies, voting trusts
or voting agreements) relating to, the Shares to which Stockholder is a
party.
4. Adjustments; Additional Shares. In the event (i) of any stock
dividend, stock split, recapitalization, reclassification, combination or
exchange of Shares on, of or affecting the Shares, or (ii) Stockholder
shall become the beneficial owner of any additional Shares or other
securities entitling the holder thereof to vote or give consent with
respect to the matters set forth in Section 1(a) hereof, then the terms of
this Agreement shall apply to the Shares held by Stockholder immediately
following the effectiveness of the events described in clause (i) above or
Stockholder becoming the beneficial owner of the Shares or other
securities, as described in clause (ii) above, in each case as though they
were Shares hereunder.
5. Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement.
6. Specific Performance. Stockholder acknowledges and agrees that
if it fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Purchaser for
which money damages would not be an adequate remedy. In such event,
Stockholder agrees that Purchaser shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, if Purchaser should institute an action or proceeding seeking
specific enforcement of the provisions hereof, Stockholder hereby waives
the claim or defense that Purchaser has an adequate remedy at law and
hereby agrees not to assert in any such action or proceeding the claim or
defense that such a remedy at law exists. Stockholder further agrees to
waive any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
7. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
If to the Purchaser:
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GS Capital Partners III, L.P.
x/x Xxxxxxx, Xxxxx & Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxx
Xxx Xxxxx, Esq.
with a copy to:
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Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
if to Stockholder:
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c/o ProMedCo Management Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: H. Xxxxx Xxxxx
Chief Executive Officer
with a copy to:
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Xxxx, Xxxxx & Xxxxxx
000 Xxx Xxxxxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
8. Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective
successors and assigns; provided, however, that each such successor in
interest or assign shall agree to be bound by the provisions of this
Agreement. Nothing in this Agreement, express or implied, is intended to
confer upon any person or entity other than Purchaser, Stockholder and
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
9. Entire Agreement; Amendments. This Agreement contains the
entire agreement between Stockholder and Purchaser with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect to such
subject matter. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the
party against whom any waiver, change, amendment, modification or discharge
may be sought.
10. Assignment. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that Purchaser may assign its
rights and obligations hereunder to any of its affiliates or direct or
indirect wholly owned subsidiaries, but no such transfer shall relieve
Purchaser of its obligations hereunder if such transferee does not perform
such obligations.
11. Defined Terms; Headings. Capitalized terms not otherwise
defined herein shall have the meaning ascribed to such terms in the
Purchase Agreement. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute
but one agreement.
13. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the state of New York without
giving effect to the principles of conflicts of law.
14. Termination. This Agreement shall terminate on the earlier of
(i) the date the Second Closing occurs under the Purchase Agreement or (ii)
the date of any termination of the obligations of the Company and Purchaser
to consummate the Second Closing pursuant to Section 7.1 of the Purchase
Agreement; provided, that the parties shall continue to be liable for any
breach of this Agreement following any such termination.
IN WITNESS WHEREOF, Purchaser and Stockholder have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
GS CAPITAL PARTNERS III, L.P.
By: GS ADVISORS III, L.P.,
its general partner
By: GS ADVISORS III, INC.,
its general partner
By:
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Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS ADVISORS III (CAYMAN), L.P.,
its general partner
By: GS ADVISORS III, INC.,
its general partner
By:
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Name:
Title:
XXXXXXX, XXXXX & CO. VERWALTUNGS GMBH
By:
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Name:
Title:
STONE STREET FUND 2000, LLC
By:
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Name:
Title:
STOCKHOLDER
By:
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Number of Shares Subject to this Agreement:
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the
undersigned pursuant to the Stockholder Voting Agreement, dated as of
January __, 2000 (the "Voting Agreement"), among the undersigned, GS
Capital Partners III, L.P., GS Capital Partners III Offshore, L.P.,
Xxxxxxx, Xxxxx & Co. Verwaltungs GMBH and Stone Street Fund 2000, LLC
(collectively, the "Purchaser"), a copy of such agreement being attached
hereto and incorporated by reference herein, the undersigned hereby
irrevocably appoints ______________________ and ___________________, and
each of them, attorneys, agents and proxies, with full power of
substitution, for the undersigned and in the name, place and stead of the
undersigned, to vote or, if applicable, to give written consent, in such
manner as each such attorney, agent and proxy or his substitute shall in
his sole discretion deem proper to record such vote or consent in the
manner set forth in Section 1(a) of the Voting Agreement with respect to
all shares of Common Stock, par value $.01 per share (the "Shares"), of
ProMedCo Management Company, a Delaware corporation (the "Company"), (i)
which the undersigned is or may be entitled to vote at any meeting of the
Company held after the date hereof, whether annual or special and whether
or not an adjourned meeting, or, if applicable, with respect to which the
undersigned is or may be entitled to give written consent in connection
with any action by written consent by the stockholders of the Company to
give written consent with respect thereto. This Proxy is coupled with an
interest, shall be irrevocable and binding on any successor in interest of
the undersigned and shall not be terminated by operation of law or
otherwise upon the occurrence of any event (except as provided in Section
14 of the Voting Agreement), including, without limitation, the death or
incapacity of the undersigned. This Proxy shall operate to revoke any prior
proxy as to the Shares heretofore granted by the undersigned. This Proxy
shall terminate upon the date on which the Voting Agreement shall terminate
in accordance with Section 14 of the Voting Agreement. This Proxy has been
executed in accordance with Section 212 of the Delaware General Corporation
Law.
Dated:
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