EXHIBIT 99.4
COMPANY VOTING AGREEMENT
VOTING AGREEMENT dated as of April 13, 1998 (this "Agreement") by and among
Paragon Health Network, Inc., a Delaware corporation (the "Parent"), and the
other parties signatory hereto (each a "Stockholder")
WHEREAS, each Stockholder is the beneficial owner of shares (the "Company
Common Stock") of common stock, par value $.01 per share, of Mariner Health
Group, Inc., a Delaware corporation (the "Company"), Paragon Acquisition Sub,
Inc., a Delaware corporation and wholly owned subsidiary of the Parent (the
"Subsidiary") and the Parent enter into an Agreement and Plan of Merger dated as
of the date hereof (as the same may be amended or supplemented, the "Merger
Agreement") with respect to the merger of Subsidiary with and into the Company
(the "Merger") with the Company surviving the Merger; and
WHEREAS, as an inducement to the Parent and the Subsidiary to enter into,
execute and deliver the Merger Agreement, Parent and Subsidiary requested that
each Stockholder execute this Agreement pursuant to which each Stockholder will
agree to vote the shares of Common Stock beneficially owned by such Stockholders
as provided herein.
NOW, THEREFORE, in consideration of the execution and delivery by the
Parent and the Subsidiary of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. VOTING AGREEMENTS. Subject to the provisions of Section 6 hereof, in
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connection with the efforts of the Company to cause the Merger Agreement and the
Merger to receive the required approval of the stockholders of the Company and
to be consummated, each Stockholder severally agrees with, and covenants to, the
Parent as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstance upon which a vote, consent or other approval of
stockholders of the Company is sought with respect to the Merger and the
Merger Agreement, such Stockholder shall (i) appear or otherwise take
appropriate action to ensure that such Stockholder's Shares (as defined
below) are present at such meeting for the purpose of obtaining a quorum
and (ii) vote (or cause to be voted) or execute a written consent with
respect to such Stockholder's Shares in favor of the Merger, the execution
and delivery by the Company of the Merger Agreement and the approval
thereof and each of the other transactions contemplated by or in any way
related to the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstance upon which the vote,
consent or other approval of stockholders of the Company is sought, such
Stockholder shall vote (or cause to be voted) or execute a written consent
in connection with such Stockholder's Shares against (i) any
merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of
or by the Company or (ii) any action or agreement, including any proposed
amendment of the Company's Certificate of Incorporation or By-laws or other
proposal or transaction involving the Company or any of its subsidiaries
which action, agreement, amendment or other proposal or transaction is
intended, or could reasonably be expected to impede, interfere with, delay,
or attempt to frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated thereby (each of
the foregoing in clauses (i) or (ii) above, a "Competing Transaction").
2. REPRESENTATIONS AND WARRANTIES. Each Stockholder severally represents
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and warrants to the Parent as follows:
(a) Such Stockholder is the record and beneficial owner of, or is a
trustee of a trust that is the record holder of, the number of shares of
the Company Common Stock set forth opposite such Stockholder's name in
Schedule A hereto (as to any Stockholder, such "Stockholder's Shares").
Except for such Stockholder's Shares, such Stockholder is not the record or
beneficial owner of any shares of Company Common Stock.
(b) This Agreement has been duly executed and delivered by such
Stockholder and such Stockholder intends for this to be a valid and binding
agreement and will not take any action to contest the valid and binding
nature of this Agreement. If such Stockholder is a natural person, such
Stockholder (i) has the full power and capacity necessary to enter into and
perform his or her obligations under this Agreement, (ii) has read all
provisions of this Agreement, has reviewed such provisions with counsel to
the extent such Stockholder deemed appropriate, understands each of such
provisions and voluntarily agrees to be bound thereby and (iii) if such
Stockholder is married and such Stockholder's Shares constitute community
property, this Agreement has been duly executed and delivered by and
constitutes a valid and binding agreement of such Stockholder's spouse and
such Stockholder's spouse intends for this to be a valid and binding
agreement and will not take any action to contest the valid and binding
nature of this Agreement. If such Stockholder is an entity, such
Stockholder is duly organized, validly existing and in good standing under
the laws of the state of its organization with full power and authority
necessary to enter into this Agreement and to perform its obligations
hereunder. If such Stockholder is a partnership, such partnership is duly
formed, validly existing and in good standing under the laws of the state
of its organization with full partnership power and authority necessary to
enter into this Agreement and to perform its obligations hereunder.
(c) Except as described on Schedule 2(c) hereof, neither the execution
and delivery of this Agreement nor the consummation by such Stockholder of
the transactions contemplated hereby will result in a violation of, or a
default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which
such Stockholder is a party or bound or to which such Stockholder's Shares
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are subject. Except as described on Schedule 2(c) hereof, neither the
execution and delivery of this Agreement nor the consummation by such
Stockholder of the transactions contemplated hereby will violate, or
require any consent, approval or notice under any provision of any
judgment, order or decree applicable to such Stockholder or such
Stockholder's Shares, except for any necessary consent, approval or notice
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended,
or Section 13 of the Securities Exchange Act of 1934, as amended, and (ii)
required by local, state and federal regulatory agencies, commissions,
boards or public authorities with jurisdiction over health care facilities
and providers.
(d) Except as described on Schedule 2(d) hereof, none of which as of
the date hereof impede the ability of the Stockholders to fulfill its
obligations under this Agreement, such Stockholder's Shares and the
certificates representing such Shares are now and at all times during the
term hereof will be held by such Stockholder, or by a nominee or custodian
for the benefit of such Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(e) Such Stockholder understands and acknowledges that the Parent is
entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement.
3. COVENANTS. Each Stockholder severally agrees with, and covenants to,
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the Parent as follows:
(a) Such Stockholder shall not (i) transfer (which terms shall
include, without limitation, for the purposes of this Agreement, any sale,
gift, pledge, alienation, assignment or other disposition, directly or
indirectly, by operation of law, in connection with any merger or otherwise
(collectively, a "Transfer")), or consent to any Transfer of, any or all of
such Stockholder's Shares or any interest therein, except pursuant to the
Merger, (ii) enter into any contract, option or other agreement or
understanding with respect to any Transfer of any or all of such
Stockholder's Shares or any interest therein, (iii) grant any proxy, power
of attorney or other authorization in or with respect to such Stockholder's
Shares, except for this Agreement and any proxy granted in connection with
any meeting of stockholders of the Company called to vote upon the Merger
and the Merger Agreement or at any adjournment thereof which contains
voting instructions consistent with such Stockholder's obligations under
this Agreement, or (iv) deposit such Stockholder's Shares into a voting
trust or enter into a voting agreement or any other arrangement with
respect to such Shares; provided, that any such Stockholder may, subject to
the provisions of Section 4 hereof, transfer any of such Stockholder's
Shares to any other Stockholder who is on the date hereof a party to this
Agreement, or to any family member of a Stockholder, charitable institution
or affiliate (as defined in the Securities Act (as defined in the Merger
Agreement)) of such Stockholder which prior to
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such Transfer becomes a party to this Agreement bound by all obligations of
a "Stockholder" hereunder.
(b) If a majority of the holders of Company Common Stock approve the
Merger and the Merger Agreement, upon consummation of the Merger such
Stockholder's Shares shall, subject to the terms and conditions of the
Merger Agreement, be converted into the right to receive the consideration
provided in the Merger Agreement. Such Stockholder hereby waives any rights
of appraisal, or rights to dissent from the Merger, that such Stockholder
may have.
(c) Subject to the provisions of Section 6 hereof, such Stockholder
shall not, in its, his or her capacity as a stockholder of the Company, and
shall instruct any investment banker, attorney or other adviser or
representative of such Stockholder not to, directly or indirectly, (i)
solicit, initiate, facilitate, or encourage any Competing Transactions or
(ii) participate in any discussions or negotiations regarding, or furnish
to any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, a Competing Transaction. Each
Stockholder shall immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. Without limiting the
foregoing, it is understood that solely for purposes of enabling Parent to
avail itself of the remedies available pursuant to Section 9(h) hereof, any
violation of the restrictions set forth in the preceding sentence by an
investment banker, attorney or other adviser or representative of such
Stockholder, whether or not such person is purporting to act on behalf of
such Stockholder or otherwise, shall be deemed to be a violation of this
Section 3(c) by such Stockholder.
4. CERTAIN EVENTS. Each Stockholder agrees that this Agreement and the
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obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Stockholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation, such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by any Stockholder, the number of Stockholder's Shares listed in
Schedule A beside the name of such Stockholder shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of the Company Common Stock or other voting securities of the Company
issued to or acquired by such Stockholder.
5. VOIDABILITY. If prior to the execution hereof, the Board of Directors
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of the Company shall not have duly and validly authorized and approved by all
necessary corporate action the Merger Agreement and the transactions
contemplated thereby, so that by the execution and delivery hereof the Parent
would become, or could reasonably be expected to become, an "interested
stockholder" with whom the Company would be prevented for any period pursuant to
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Section 203 of the DGCL from engaging in any "business combination" (as such
terms are defined in Section 203 of the DGCL), then this Agreement shall be void
and unenforceable until such time as such authorization and approval shall have
been duly and validly obtained.
6. STOCKHOLDER CAPACITY. No person executing this Agreement who is or
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becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer and the provisions of this Agreement shall not restrict or limit any
such person in the discharge of his or her fiduciary duties as an officer or
director of the Company. Each Stockholder signs solely in his or her capacity
as the record and beneficial owner or the trustee of a trust whose beneficiaries
are the beneficial owners of such Stockholder's Shares.
7. REGULATORY APPROVAL. Each of the provisions of this Agreement is
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subject to compliance with applicable regulatory conditions.
8. FURTHER ASSURANCES. Each Stockholder shall, upon request of the
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Parent, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Parent to be necessary or desirable
to carry out the provisions hereof.
9. TERMINATION. It is a condition precedent to the effectiveness of this
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Agreement that the Merger Agreement shall have been executed and delivered and
be in full force and effect. This Agreement shall automatically terminate and
be of no further force and effect upon the first to occur of (i) the Effective
Time of the Merger or (ii) the date upon which the Merger Agreement is
terminated in accordance with its terms. Upon such termination, except for any
rights any party may have in respect of any breach by any other party of its or
his obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder
10. MISCELLANEOUS.
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(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given upon the
same terms as set forth in Section 8.05 of the Merger Agreement, except
that notices to the undersigned Stockholders shall be sent to the address
set forth in Schedule A hereto opposite each such Stockholder's name.
(c) 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.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective as to any Stockholder when one or more counterparts have been
signed by each of Parent and such Stockholder and delivered to Company,
Subsidiary, Parent and such Stockholder.
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(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
(f) 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.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part,
through any merger, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties, except by laws of
descent or as expressly contemplated by Section 3(a) hereof. Any assignment
in violation of the foregoing shall be void.
(h) Each Stockholder agrees that irreparable damage would occur and
that Parent would not have any adequate remedy at law 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 Parent shall be entitled to an injunction or injunctions to prevent
breaches or threatened breaches by any Stockholder of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in Delaware
state court, this being in addition to any other remedy to which Parent may
be entitled at law or in equity. In addition, each of the parties hereto
irrevocably and unconditionally (i) consents to be subject to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat the personal jurisdiction of such courts
by motion or other request for leave from any such court, (iii) agrees that
such party will not bring any action relating to this Agreement or any of
the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Delaware or a Delaware state court and (iv)
that service of process may also be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of, valid service, and that service made
pursuant to this clause (iv) shall have the same legal force and effect as
if served upon such party personally within the State of Delaware.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full
force and effect, shall not in any way be affected, impaired, or
invalidated, and shall be enforced to the fullest extent permitted by law
and the provision found to be invalid, void or unenforceable shall be
immediately revised by the parties
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hereto so as to be valid, binding and enforceable to the greatest extent
then permitted by applicable law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such part y.
(k) A facsimile of this Agreement containing signatures of all of the
parties hereto shall constitute an original document for all purposes.
[BALANCE OF PAGE INTENTIONALLY OMITTED]
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IN WITNESS WHEREOF, the Parent and each Stockholder have caused this
Company Voting Agreement to be duly executed and delivered on day and year first
above written.
PARAGON HEALTH NETWORK, INC.
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
Title: Senior Vice President
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Individually
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx Partners, L.P. as General
Partner
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx as Trustee of the
Xxxxxx X. Xxxxxxx, Xx. Irrevocable
Trust Dated 11/1/91
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx as Trustee of the
Charlotte Xxxx Xxxxxxx Irrevocable
Trust Dated 11/1/91
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SCHEDULE A
STOCKHOLDER ADDRESS OF STOCKHOLDER NUMBER OF SHARES OF
COMPANY COMMON STOCK
Xxxxxx X. Xxxxxxx, Xx. 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000 2,181,183
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx Partners, L.P. 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000 862,760
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxxxx Xxxx, X.X. 2,154,696
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxx, TR 0000 Xxxxxxxxx Xxxx, Xxxxx 000 427,066
Xxxxxxxxx X. Xxxxxxx IRR Atlanta, Georgia 3032
Trust dated 11/1/91
Xxxxxxx X. Xxxxxxx, TR 0000 Xxxxxxxxx Xxxx, Xxxxx 000 427,066
Xxxxxx X. Xxxxxxx, Xx. Xxxxxxx, Xxxxxxx 00000
IRR Trust dated 11/1/91
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SCHEDULE 2(C)
Certain of the stock beneficially owned by Xxxxxx X. Xxxxxxx, Xx. has been
pledged to NationsBank, N.A. ("NationsBank") to secure financing extended by
NationsBank to Xxxxxx X. Xxxxxxx. As a part of that pledge, a contingent proxy
has been granted to
NationsBank.
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SCHEDULE 2(D)
Certain of the shares of stock beneficially owned by Xxxxxx X. Xxxxxxx, Xx. are
subject to a pledge in favor of NationsBank, N.A.
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