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EXHIBIT 99.6
AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of July 29, 1997,
among Xxxxxxx Inc., a Canadian corporation ("Parent"), EHI Acquisition Corp., a
Delaware corporation and an indirect wholly owned subsidiary of Parent
("Purchaser"), and each other person whose name is set forth on the signature
pages hereto (individually, a "Seller" and collectively, the "Sellers").
WHEREAS, Parent, the Purchaser, and EmCare Holdings Inc., a
Delaware corporation (the "Company"), propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), which
provides, among other things, that Purchaser, upon the terms and subject to the
conditions thereof, will make a tender offer (the "Tender Offer") for all of
the outstanding shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock"), and thereafter Purchaser and the Company will be
merged (the "Merger") (the Tender Offer and Merger being collectively referred
to as the "Acquisition Transaction"); and
WHEREAS, each Seller is the holder or beneficial owner of, or
has dispositive and voting authority for, the number of shares of the Common
Stock set forth opposite the name of such Seller on the signature pages hereto
(collectively, the "Shares"); and
WHEREAS, as a condition to the willingness of Purchaser and
Parent to enter into the Merger Agreement, Purchaser and Parent have required,
among other things, that the Sellers execute and deliver this Agreement; and
WHEREAS, the Sellers are desirous of inducing Purchaser and
Parent to enter into the Merger Agreement and, therefore, are desirous of
executing and delivering this Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in
consideration of the mutual agreements, covenants, representations and
warranties contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
Acquisition Transaction
Section 1.1 Tender Offer. The parties acknowledge that
the Purchaser and Parent would not have entered into the Merger Agreement
without the concurrent execution of this Agreement and that the Sellers, the
Parent and the Purchaser would not have entered into this Agreement without the
concurrent execution of the Merger Agreement. In connection with the Tender
Offer, each Seller severally agrees that such Seller will promptly tender, and
not withdraw, the Shares of such Seller pursuant to the terms of the Tender
Offer.
Section 1.2 Grant of Irrevocable Proxy. Each Seller
hereby irrevocably grants to the Purchaser, Xxxxx X. Xxxxxxx and Xxxx X.
Xxxxxx, or any of them (each a "Proxyholder"), each with full power of
substitution, a proxy to exercise all voting and other rights with respect to
all such
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Seller's Shares, including without limitation, with respect to the Merger and
the other matters contemplated by the Merger Agreement. All prior proxies and
powers given by each Seller with respect to such Seller's Shares are, without
further action, hereby revoked for so long as this Agreement is in effect, and
no subsequent proxies or powers may be given, and if given will not be
effective. Each Proxyholder will, with respect to the Shares, be empowered to
exercise all voting and other rights of the Sellers with respect to the Shares
as such Proxyholder, in his or its sole discretion, may deem proper at any
meeting of the Company's shareholders, by written consent or otherwise. The
foregoing proxy may be exercised by any Proxyholder only to the extent
consistent with the terms of this Agreement and the Merger Agreement.
ARTICLE II
Designated Affiliate and Adjustments
Section 2.1 Designated Affiliate. It is understood
and agreed among the parties that Purchaser may cause one or more companies
which are directly or indirectly controlled by or under common control with
Parent designated by it (the "Designated Affiliate" or "Designated Affiliates")
to carry out some or all of the provisions of this Agreement (including,
without limitation, the effectuation of the Acquisition Transaction); provided,
however, that Purchaser shall nevertheless remain liable for all of its
obligations and those of the Designated Affiliate or Affiliates hereunder.
Section 2.1 Adjustment Upon Changes in Capitalization. In
the event of any change in any of the Shares by reason of any stock dividends,
split-ups, mergers, recapitalization or other changes in the corporate or
capital structure of the Company, the number and kind of such Shares subject to
this Agreement shall be appropriately adjusted.
ARTICLE III
Representations of
and Warranties by the Seller
Each Seller severally hereby represents and warrants to
Purchaser and Parent as follows:
Section 3.1 Ownership of the Shares. Such Seller has full
power and authority to tender, sell, assign and transfer the number of the
shares of the Common Stock set forth opposite such Seller's name on the
signature pages hereto (which are all the shares of the Common Stock which such
Seller so owns), and will have (without exception) good and unencumbered title
with respect to all of the Shares of such Seller, free and clear of all liens,
restrictions, charges and encumbrances and such Shares will not be subject to
any adverse claim whatsoever, and upon the delivery of and payment for the
Shares of such Seller, Purchaser will receive good and
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unencumbered title with respect to all of such Shares, free and clear of all
liens, restrictions, charges and encumbrances and such Shares will not be
subject to any adverse claim whatsoever.
Section 3.2 Authorization, Valid and Binding Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
such Seller and constitutes the valid and binding agreement of Seller
enforceable against such Seller in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency
or other similar laws affecting creditors' rights generally or by general
equitable principles.
Section 3.3 No Conflicts. Neither the execution and
delivery of this Agreement nor the performance by such Seller of such Seller's
obligations hereunder will constitute a violation of, or conflict with, or
constitute a default under, any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Seller is a party or by
which such Seller is bound or any judgment, decree or order applicable to such
Seller.
ARTICLE IV
Representations of and
Warranties by Purchaser and Parent
Purchaser and Parent hereby represent and warrant to such
Seller as follows:
Section 4.1 Authorization; Valid and Binding Agreement.
This Agreement has been duly authorized by all necessary corporate action on
the part of Purchaser and Parent. This Agreement has been duly and validly
executed and delivered by Purchaser and Parent, and constitutes the valid and
binding agreement of Purchaser and Parent, enforceable against Purchaser and
Parent in accordance with its terms, except to the extent enforceability may be
limited by applicable bankruptcy, insolvency or other similar laws affecting
creditors' rights generally or by general equitable principles.
Section 4.2 No Conflicts. Neither the execution and
deliver of this Agreement nor the performance by Purchaser or Parent of its
respective obligations hereunder will constitute a violation of, or conflict
with, or constitute a default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Purchaser or
Parent is a party or by which Purchaser or Parent is bound or any judgment,
decree or order applicable to Purchaser or Parent.
ARTICLE V
Covenants
Section 5.1 Negotiations. Following the execution of this
Agreement by the Sellers, each Seller severally agrees not to, directly or
indirectly, (i) initiate contact with, solicit or
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enter into negotiations with, any corporation, partnership, person or other
entity (a "Third Party") concerning any possible proposal that constitutes, or
may reasonably be expected to lead to, any Acquisition Proposal (as hereinafter
defined), or (ii) furnish any internal nonpublic financial or business
information to any corporation, partnership, person or other entity in
connection with any Acquisition Proposal; and each Seller severally agrees to
notify Purchaser immediately if any discussions or negotiations are sought to
be initiated, or any such information is requested, with respect to an
Acquisition Proposal or potential Acquisition Proposal of if any Acquisition
Proposal is received or indicated to be forthcoming. Purchaser and Parent each
hereby acknowledge that any action taken by a Seller in such Seller's capacity
as a director or executive officer of the Company contemplated by Section 5.2
of the Merger Agreement shall not constitute a violation by such Seller of such
Seller's obligations under this Section 5.1. The term "Acquisition Proposal"
means the occurrence of any of the following events: (a) the Company or any
subsidiary of the Company is acquired by merger or otherwise by any Third
Party; (b) the Company or any subsidiary of the Company enters into an
agreement with a Third Party that contemplates the acquisition of 35% or more
of the total assets of the Company and its subsidiaries taken as a whole; (c)
the Company enters into a merger or other agreement with a Third Party that
contemplates the acquisition of beneficial ownership of more than 35% of the
outstanding shares of the Company's capital stock; or (d) a Third Party
acquires more than 35% of the outstanding shares of the Company's capital
stock.
Section 5.2 Other Transactions. Each Seller severally
agrees that, prior to the termination of this Agreement, such Seller shall not
engage in any action or omission that would have the effect of preventing or
disabling such Seller from delivering the Shares of such Seller to Purchaser
hereunder or otherwise performing such Seller's obligations under this
Agreement or causing any representation of or warranty by such Seller to be
untrue. Without limiting the foregoing and except as provided in this
Agreement, each Seller severally agrees not to sell or transfer, or agree to
sell or transfer, any of the Shares of such Seller or any interest in such
Shares, shall keep such Shares free and clear of all liens, charges and
encumbrances and voting agreements, commitments, agreements, understandings and
arrangements of every kind and shall not give any proxy with respect to the
voting power of such Shares until the termination of this Agreement.
Section 5.3 Guaranty. Parent hereby guarantees the due
performance by Purchaser of any obligations of Purchaser hereunder.
Section 5.4 Employment Agreements. Each Seller severally
agrees and Parent agrees, and shall cause the Company, to enter into an
employment agreement in the form bearing the name of such Seller attached
hereto as Exhibit A or B, as the case may be, immediately following the
acceptance of shares of the Company's stock pursuant to the Offer contemplated
by the Merger Agreement.
ARTICLE VI
[Reserved]
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ARTICLE VII
Termination
Section 7.1 Termination. This Agreement shall terminate
at the earliest of (a) the time mutually agreed to by Purchaser, Parent and the
Sellers expressed in writing, or (b) so long as Sellers are not in default
under this Agreement, the termination of the Merger Agreement in accordance
with its terms.
Section 7.2 Effect of the Termination. In the event of
the termination of this Agreement pursuant to Section 7.1, this Agreement shall
forthwith become void and have no effect, without liability on the part of any
party or its directors, officers or shareholders. Nothing contained in this
Article VII shall relieve any party from liability for any breach of this
Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1 Expenses. No party hereto will pay any fees
and expenses incurred by any other party in connection with this Agreement,
including without limitation the fees and expenses of such party's financial
and legal advisors and any brokerage or finder's fee incurred by such party,
each party representing that such party has incurred no obligation for any such
fee for which any other party is responsible.
Section 8.2 Non-Survival of Representations and
Warranties. The representations and warranties of Purchaser, Parent and the
Seller in this Agreement or in any instrument delivered by Purchaser, Parent
and any Seller pursuant to this Agreement shall not survive the Closing except
for those contained in Sections 3.1, 4.1 and 8.3 which shall survive the
Closing and any investigation at any time made by or on behalf of any party
hereto.
Section 8.3 Non Registration. Purchaser acknowledges that
the sale of the Shares has not been registered under the Securities Act of
1933, represents that it is not acquiring the Shares with a view to the
distribution thereof, and agrees that it will not sell the Shares except
pursuant to a registration statement under that Act or an exemption from
registration thereunder.
Section 8.4 Assignment; Parties in Interest. Except as
permitted by Section 2.1 hereof or as required by operation of law, this
Agreement shall not be assignable by the parties hereto without the prior
written consent of the other parties. Notwithstanding the foregoing, Purchaser
may assign this Agreement to an entity which controls or is controlled by the
same persons who control Purchaser. This Agreement will be binding upon, inure
to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns.
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Section 8.5 Entire Agreement; Amendments. This Agreement
and the documents referred to herein or delivered pursuant hereto which form a
part hereof, contain the entire understanding of the parties with respect to
its subject matter. There are no restrictions, agreements, promises,
warranties, covenants or undertakings other than those expressly set forth
herein or therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by written instrument duly executed by all the
parties. Any condition to a party's obligations hereunder may be waived in
writing by such party.
Section 8.6 Notices. All notices, claims, certificates,
requests, demands and other communications hereunder shall be in writing and
will be deemed to have been duly given (i) when delivered if delivery is made
in person, by cable, telegram, telecopier or telex, (ii) on the next business
day after mailing by means of an overnight delivery service, or (iii) on the
fifth business day after deposit in the mails (registered or certified mail,
postage prepaid, return receipt requested), as follows:
(a) If to Purchaser or Parent, to:
Xxxxxxx Inc.
0000 X. Xxxxxxx Xxxx
P.O. Box 5028
Xxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Telecopy No. 000-000-0000
Telephone No. 000-000-0000
Attention: Xxxx X. Xxxxxx
(b) If to any Seller, to:
EmCare Holdings Inc.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
Telephone No. (000) 000-00000
Attention: [insert Seller's name]
or to such other address as the person to whom notice is to be given may have
previously furnished to the other parties in writing in the manner set forth
above. No notice, claim, certificate, request, demand or other communication
shall be deemed to have been duly given to any party hereto unless
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deemed to have been duly given in the manner set forth above to both such party
and any person or person designated to receive a copy.
Section 8.7 Law Governing. This Agreement will be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflicts of law thereof.
Section 8.8 Severability of Provisions. In case any one
or more of the provisions contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
Section 8.9 Counterparts; Headings. This Agreement may be
executed simultaneously in several counterparts, each of which will be deemed
to be an original, but all of which together will constitute one and the same
instrument. The article and section headings contained herein are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
Section 8.10 Remedies. The parties hereto agree that if
for any reason any party hereto shall have failed to perform its obligations
under this Agreement, then any other party hereto seeking to enforce this
Agreement against such non-performing party shall be entitled to specific
performance and injunctive and other equitable relief, and the parties hereto
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or other equitable
relief. This provision is without prejudice to any other rights that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Agreement.
Section 8.11 Fiduciary Duty. Nothing herein shall in any
way affect any action by any director or executive officer of the Company that
is required to be taken in order to discharge properly their fiduciary duties
to the Company.
Section 8.12 Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, property or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the Sellers, Purchaser or Parent, as the case may be, shall take all
such necessary action.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
EHI ACQUISITION CORP.
By:
-------------------------------
Title:
----------------------------
XXXXXXX INC.
By:
-------------------------------
Title:
----------------------------
SELLERS
Number of Shares
of Common Stock:______
----------------------------------
Xxxxxxx X. Xxxxx, Xx., M.D.
Number of Shares
of Common Stock:_______
----------------------------------
Xxxxxxx X. Xxxxxx, III
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