AMENDED AND RESTATED
VOTING AND CONTRIBUTION AGREEMENT
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THIS AMENDED AND RESTATED VOTING AND CONTRIBUTION AGREEMENT (this
"Agreement") dated as of November 28, 2001 by and among Anam LLC, a Delaware
limited liability company (together with its assignees or designees, the
"Company"), and the other signatories hereto (together with any Additional
Stockholders (as defined below), the "Stockholders").
W I T N E S S E T H
WHEREAS, the Company, Xxxxxx X. Xxxx and Xxxxxxx X. X'Xxxxxxx, Xx. entered
into a Voting and Contribution Agreement dated as of April 16, 2001 (the
"Original Agreement") to which, pursuant to a Joinder Agreement dated as of
April 13, 2001, Xxxx X'Xxxxxxx agreed to become a party thereto and, pursuant to
a Joinder Agreement dated as of April 19, 2001, the BTM Irrevocable Trust UA
dated 09/08/89 agreed to become a party thereto, and the Company and the
Stockholders desire to enter into this Agreement to amend and restate the
Original Agreement as set forth herein;
WHEREAS, concurrently with the execution and delivery of the Original
Agreement, NextHealth, Inc., a Delaware corporation ("NextHealth") entered into
an Agreement and Plan of Merger dated as of April 16, 2001 (the "Original Merger
Agreement") with the Company and NHI Acquisition Corp., a Delaware corporation
which is a wholly-owned subsidiary of the Company ("NHI"), pursuant to which NHI
shall merge with and into NextHealth (the "Merger"), upon the terms and
conditions set forth therein;
WHEREAS, concurrently with the execution and delivery of this Agreement,
NextHealth, the Company and NHI are entering into a First Amendment to Agreement
and Plan of Merger dated as of the date hereof (the "First Amendment") which
amends, among other things, the consideration to be paid by the Company in
connection with the Merger (the Original Merger Agreement as so amended by the
First Amendment, the "Merger Agreement");
WHEREAS, each Stockholder severally desires that the Company, NHI and
NextHealth consummate the Merger and the other transactions contemplated by the
Merger Agreement;
WHEREAS, each Stockholder owns beneficially and of record and have the sole
power to vote and dispose of the number of shares of Common Stock, par value
$.01 per share, of NextHealth ("NextHealth Common Stock") set forth under the
caption "Shares Owned," opposite its name on Schedule I hereto (such shares of
NextHealth Common Stock owned by the Stockholders or acquired or otherwise
received after the date hereof being referred to herein as the "Shares");
WHEREAS, opposite each Stockholder's name on Schedule I hereto under the
caption "Options Owned" is the number of shares of NextHealth Common Stock
acquirable pursuant to stock options owned by it (such stock options owned by
the Stockholders being refereed to herein as the "Options");
WHEREAS, each Stockholder severally desires to contribute its shares of
NextHealth Common Stock to the Company as part of a transaction that is intended
to qualify as exchanges under section 721 of the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, the Company has entered into an Amended and Restated Memorandum of
Understanding dated as of the date hereof (the "Amended and Restated Memorandum
of Understanding") with TRIOD LLC, a Delaware limited liability company
("TRIOD"), certain of the Stockholders and ODE, L.L.C., which sets forth the
understanding of the parties thereto with respect to the management of the
Company and TRIOD, and the transactions and agreements expected to be entered
into in connection with the Merger, including those relating to the sources of
funds to finance the Merger;
WHEREAS, as a condition to its willingness to enter into the First
Amendment and the Amended and Restated Memorandum of Understanding, the Company
has requested that the Stockholders enter into this Agreement; and
WHEREAS, from time to time prior to the consummation of the Merger,
additional stockholders of NextHealth (the "Additional Stockholders") may be
joined to this Agreement either in substitution of or in addition to, the
Stockholders, in each case subject to the terms and conditions herein described,
by executing and delivering to the Company a copy of the Joinder Agreement in
the form attached hereto as Exhibit A.
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NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. Certain capitalized terms used and not
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otherwise defined herein have the meanings ascribed to them in the Merger
Agreement. Unless the context otherwise requires, such terms shall include the
singular and plural and the conjunctive and disjunctive forms of the terms
defined.
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ARTICLE II
VOTING AGREEMENTS
SECTION 2.01. Stockholder Meetings. Each Stockholder agrees that at any
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meeting of stockholders of NextHealth called to vote upon the Merger or the
Merger Agreement, or at any adjournment thereof, or in any other circumstances
upon which a vote, consent or other approval of the stockholders of NextHealth
with respect to the Merger, the Merger Agreement or any of the other
transactions contemplated thereby or hereby is sought, such Stockholder shall
cause its Shares to be present for quorum purposes and to vote (or caused to be
voted) its Shares in favor of the terms thereof and each of the other
transactions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof. Each Stockholder hereby
grants to the Company a proxy to vote all of the Shares then beneficially owned
by such Stockholder as indicated in this Section 2.01. Each Stockholder agrees
that this proxy shall be irrevocable and coupled with an interest, agrees to
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by such Stockholder with respect to any of the Shares.
SECTION 2.02. Competing Transaction. Subject to the provisions of Article
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VI, each Stockholder agrees that at any meeting of stockholders of NextHealth,
or at any adjournment thereof, or in any other circumstances upon which their
vote, consent or other approval is sought, such Stockholder shall vote (or cause
to be voted) its Shares against (i) any Takeover Proposal and (ii) any amendment
of NextHealth's Certificate of Incorporation or By-laws or other proposal or
transaction involving NextHealth or any of its Subsidiaries which amendment or
other proposal or transaction would in any manner impede, interfere with,
materially delay, frustrate, prevent or nullify or result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
NextHealth or any Stockholder under or with respect to, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or by this Agreement.
ARTICLE III
CONTRIBUTION
SECTION 3.01. Contribution of Shares by Stockholders. Each Stockholder
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agrees that immediately prior to the Effective Time of the Merger, each such
Stockholder shall contribute the number of Shares, if any, listed opposite such
Stockholder's name under the caption "Shares Owned" on Schedule I hereto (and,
to the extent that any of such Stockholder's Options are exercised prior to the
Effective Time, each such Stockholder also shall contribute such Shares received
upon such exercise) to the Company. The Company shall issue to each
contributing Stockholder a proportionate membership interest in the Company
("Company Interest"). Upon the issuance of Company Interests pursuant to this
Section 3.01, each contributing Stockholder agrees to
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become a member of the Company and become bound by the terms and conditions of
the Limited Liability Agreement of the Company (the "Company Agreement").
SECTION 3.02. Termination of Options. Each Stockholder agrees that
----------------------
immediately prior to the Effective Time, the Options, if any, listed opposite
such Stockholder's name under the caption "Options Owned" on Schedule I hereto
shall be cancelled pursuant to Section 2.4 of the Merger Agreement, except to
the extent that such Options are exercised prior to the Effective Time, in which
case such Stockholder also shall contribute to the Company in accordance with
Section 3.01 hereof, the Shares received upon such exercise. In consideration
for cancellation, the Company shall, in accordance with Section 2.4 of the
Merger Agreement, pay, or cause to be paid, to such Stockholder an amount in
respect of such Options equal to the product of (x) the excess of the Per Share
Merger Consideration over the exercise price thereof and (y) the number of
shares of NextHealth Common Stock subject thereto (such payment to be net of
taxes required by law to be withheld with respect thereto).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Stockholders. Each of
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the Stockholders severally and not jointly represents and warrants to the
Company as follows:
(a) Power, Organization and Standing. Such Stockholder has all requisite
--------------------------------
power and authority to enter into and perform its obligations under this
Agreement and, if such Stockholder is not a natural person, such Stockholder is
duly organized, validly existing and in good standing under the laws of its
state of organization. Such Stockholder is either an individual (who is not a
non-resident alien described in Section 1361(b)(1)(C) of the Code), estate,
exempt organization described in Section 401(a) or 501(c)(3) of the Code, or a
trust described in Section 1361(c)(2)(A) of the Code.
(b) Authority and Capacity. The execution and delivery of this Agreement,
----------------------
and the performance by such Stockholder of its obligations hereunder, have been
duly authorized by all necessary action on the part of such Stockholder. This
Agreement has been duly executed and delivered by such Stockholder and, assuming
the due execution and delivery hereof by the Company, this Agreement constitutes
a legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms.
(c) Ownership. Such Stockholder is the record and beneficial owner of,
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and has good and valid title to, the number of Shares and Options listed
opposite such Stockholder's name under the captions "Shares Owned" and "Options
Owned," respectively, on Schedule I hereto, free and clear of all Liens or other
adverse interests (including any restrictions on the right to vote, sell or
otherwise dispose of such Shares and Options). Except for this Agreement and as
otherwise indicated on Schedule I
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hereto, there are no outstanding warrants, subscriptions, rights (including
preemptive rights), options, calls, commitments or other agreements or Liens or
other adverse interests to encumber, purchase or acquire any of the Shares or
Options of such Stockholder or securities convertible into or exchangeable for
the Shares of such Stockholder. Except as indicated in Schedule I hereto,
neither such Stockholder nor any of its "affiliates" or "associates" (as such
terms are defined in Rule 12b-2 promulgated under the Exchange Act) holds either
of record or beneficially any securities, capital stock, warrants,
subscriptions, rights (including preemptive rights), options, calls, commitments
or other instruments of NextHealth or any of NextHealth's Subsidiaries other
than such Stockholder's Shares. Except as indicated in Schedule I hereto, such
Stockholder has the exclusive power to vote such Shares.
(d) No Conflict. The execution of this Agreement and the consummation of
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the transactions contemplated hereby will not require notice to, or the consent
of, any party to any contract to which such Stockholder is a party or by which
it is bound, or the consent, approval, order or authorization of, or the
registration, declaration or filing with, any governmental authority, except for
(i) approvals of, or filings or registrations with the FTC and DOJ pursuant to
HSR, (ii) the filing of the Certificate of Merger pursuant to the DGCL, (iii)
compliance with any applicable requirement of the Exchange Act, (iv) such
consents, if any, as set forth in Schedule 4.3 to the Merger Agreement or (v)
------------
where failure to make such filing or registration, give such notice or receive
such permit, consent or approval would not reasonably be expected to prevent or
materially delay consummation of the transactions contemplated hereby. Assuming
that the notices, consents and approvals referred to in the preceding sentence
have been given, made or obtained and remain effective, the execution, delivery
and performance by such Stockholder of this Agreement and the consummation of
the transactions contemplated hereby will not (i) violate any material
applicable laws, (ii) result in a breach or violation of any provision of,
constitute a default under, or result in the termination of, or an acceleration
of indebtedness or creation of any Lien under, any contract to which such
Stockholder is a party or by which it or its Shares are bound or (iii) conflict
with or violate any provision of the organizational or similar documents of such
Stockholder.
(e) Brokers, Finders, etc. No agent, broker, investment banker, financial
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advisor, or other Person (other than fees and expenses of which are the
responsibility of the Company or NHI) is entitled to any brokerage commission,
finder's fee or like payment in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of the Stockholders.
(f) Investment Representations. Each Stockholder:
--------------------------
(i) is an "accredited investor," as such term is defined in
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act");
(ii) has had access to such financial and other information, and has
been afforded the opportunity to ask questions of representatives of the
Company, and
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to receive answers to those questions, as it has deemed necessary in
connection with its acquisition of a Company Interest pursuant to this
Agreement;
(iii) acknowledges that the Company Interest that will be acquired
pursuant to this Agreement is being acquired in a transaction not involving
any public offering within the meaning of the Securities Act, and the
Company Interest has not been, and may never be, registered under the
Securities Act;
(iv) agrees not to offer, sell, transfer or otherwise dispose of the
Company Interest acquired pursuant to this Agreement in the absence of
registration under the Securities Act unless it delivers to the Company an
opinion of counsel reasonably satisfactory to the Company, in form and
substance satisfactory to the Company, to the effect that the proposed
sale, transfer or other disposition may be effected without registration
under the Securities Act and under applicable state securities and blue sky
laws;
(v) acknowledges that unless and until the Company Interest
acquired pursuant to this Agreement shall have been registered under the
Securities Act, the Company Agreement governing such Company Interest will
bear a legend to the following effect:
THE MEMBERSHIP INTERESTS (THE "INTERESTS") IN THIS LIMITED LIABILITY
COMPANY (THE "COMPANY") HAVE NOT BEEN REGISTERED WITH OR APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES REGULATORY AUTHORITY OF ANY STATE. HOLDERS OF INTERESTS WILL BE
REQUIRED TO BEAR THE RISK OF THEIR INVESTMENTS FOR AN INDEFINITE PERIOD OF
TIME. THE INTERESTS HAVE NOT BEEN REGISTERED (i) UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "FEDERAL ACT"), OR (ii) ANY STATE
SECURITIES LAW (A "STATE ACT"), AND NEITHER THE INTERESTS NOR ANY PART
THEREOF MAY BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE FEDERAL ACT AND ANY APPLICABLE STATE ACT AND WITH THE
TERMS AND CONDITIONS OF ARTICLE VII OF THIS AGREEMENT, WHICH RESTRICTS THE
TRANSFER OF INTERESTS, OR IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE FEDERAL ACT AND APPLICABLE STATE ACT OR AN OPINION OF
COUNSEL FOR THE COMPANY THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE COMPANY'S RECORDS WILL CONTAIN APPROPRIATE "STOP TRANSFER" INSTRUCTIONS
RELATED TO THE ABOVE RESTRICTIONS ON TRANSFER.
(vi) has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an
acquisition of the Company Interest pursuant to this Agreement and is able
to bear the economic
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risk of a loss of an investment in such Company Interest and is not
acquiring such Company Interest with a view to the distribution thereof or
any present intention of offering or selling any thereof in a transaction
that would violate the Securities Act or the securities laws of any state
or any other applicable jurisdiction; and
(vii) has been advised by its own counsel with respect to this
Agreement and the tax implications of the contributions and transactions
contemplated hereby.
(g) Stockholders Agreement. As contemplated by the Amended and Restated
----------------------
Memorandum of Understanding, such Stockholder acknowledges and agrees that on
the Closing Date, the Company shall dissolve and such Stockholder will receive a
proportionate share of the stock of the Surviving Corporation then held by the
Company, and such Stockholder shall enter into a stockholders agreement by and
among the Surviving Corporation and the stockholders of the Surviving
Corporation named therein (the "Stockholders Agreement"). Pursuant to the
Stockholders Agreement, such Stockholder shall agree, among other things, to
execute a consent to the Surviving Corporation's election to be treated as a
"small business corporation" for Federal income tax purposes under Section 1362
of the Code (and any similar state tax provision), effective for the taxable
year beginning January 1, 2003, and agree to not take any action that would
result in the revocation or termination of such election. Such Stockholder
further acknowledges and agrees that the stock of the Surviving Corporation to
be issued to such Stockholder as contemplated by the Amended and Restated
Memorandum of Understanding shall be subject to the Stockholders Agreement.
SECTION 4.02. Representations and Warranties of the Company. The Company
---------------------------------------------
hereby represents and warrants to each of the Stockholders as follows:
(a) Organization, Standing and Power. The Company is duly organized,
--------------------------------
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to enter into and perform its
obligations under this Agreement.
(b) Authority and Capacity. The execution and delivery of this Agreement,
----------------------
and the performance by the Company of its obligations hereunder, have been duly
authorized by all necessary action on the part of the Company. This Agreement
has been duly executed and delivered on behalf of the Company and, assuming the
due execution and delivery hereof by the Stockholders, this Agreement
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
(c) No Conflict. The execution of this Agreement and the consummation of
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the transactions contemplated hereby will not require notice to, or the consent
of, any party to any contract to which the Company or any of its affiliates is a
party or by which any of them is bound, or the consent, approval, order or
authorization of, or the registration, declaration or filing with, any
governmental authority, except for (i) approvals of, or
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filings or registrations with the FTC and DOJ pursuant to HSR, (ii) the filing
of the Certificate of Merger pursuant to the DGCL, (iii) compliance with any
applicable requirement of the Exchange Act, (iv) such consents, if any, as set
forth in Schedule 4.3 to the Merger Agreement or (v) where failure to make such
------------
filing or registration, give such notice or receive such permit, consent or
approval would not reasonably be expected to prevent or materially delay
consummation of the transaction's contemplated hereby. Assuming that the
notices, consents and approvals referred to in the preceding sentence have been
given, made or obtained and remain effective, the execution, delivery and
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby will not (i) violate any material applicable
laws, (ii) result in a breach or violation of any provision of, or constitute a
default under, any contract to which the Company is a party or by which it is
bound or (iii) conflict with any provision of the Company Agreement or the
Certificate of Formation of the Company.
ARTICLE V
COVENANTS
SECTION 5.01. No Solicitation. Each Stockholder agrees that it shall not,
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nor shall it authorize or permit any Affiliate, agent, partner or employee of,
or any investment banker, attorney or other advisor or representative of, such
Stockholder to, directly or indirectly, (i) solicit or initiate, or encourage
any inquiries regarding or the submission of, any Takeover Proposal (including
without limitation any proposal or offer to NextHealth's stockholders) or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any nonpublic information with respect to, or take any other action to
facilitate the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Takeover Proposal. Notwithstanding the foregoing, a
Stockholder may (A) furnish nonpublic information with respect to NextHealth to
the person who made such Takeover Proposal and (B) participate in negotiations
with such person regarding such Takeover Proposal, if such Stockholder is
instructed in writing to do so by the Board of Directors of NextHealth; provided
that it is understood that this Section 5.01 shall not be deemed to have been
violated if in response to an unsolicited inquiry, such Stockholder states
solely that he or she is subject to the limits of this Agreement and provides
only public information in response to such unsolicited inquiry.
SECTION 5.02. No Transfer; No Inconsistent Arrangements. Each Stockholder
-----------------------------------------
agrees that it shall not (including by way of any gift, sale, pledge or other
disposition, including without limitation in connection with foreclosures by
lenders secured by pledges of Shares or Options) (i) transfer, sell or pledge,
encumber, assign or otherwise dispose of, or consent to the transfer or pledge
of, any or all of the Shares or Options owned by it or of any interest therein,
(ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer of any such Shares or Options, or any interest
therein or result in the imposition of any Lien, (iii) grant any proxy, power-
of-attorney or other authorization in or with respect to any such Shares or
Options, except pursuant to this Agreement, (iv) deposit any such Shares or
Options into a voting trust or enter into a voting agreement or arrangement with
respect to any such
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Shares or Options or (v) take any action that would in any way restrict, limit
or interfere or in any way be inconsistent with the performance of its
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement.
SECTION 5.03. Further Assurances. From time to time, whether before, at,
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or after the Closing, each party hereto agrees to execute and deliver, or cause
to be executed and delivered, such additional instruments, certificates and
other documents, and to take such other action, as may be necessary or advisable
in order to carry out the terms and provisions of this Agreement and the
transactions contemplated hereby (including voting the Shares in favor of any
such transaction) or to cause the elimination of any circumstance that would
cause a condition under Article V hereof not to be satisfied on the Closing
Date.
SECTION 5.04. Notice of Certain Events. The Company and each Stockholder
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agrees to notify each other party hereto promptly of (a) any event or condition
that, with or without notice or lapse of time, would or could reasonably be
expected to cause any of the representations and warranties made by such party
herein to be no longer complete and accurate as of any date on or before the
Closing Date, or (b) any failure, with or without notice or lapse of time, on
the part of such party to comply with any of the covenants or agreements on its
part contained herein at any time on or before the Closing Date.
ARTICLE VI
CONDITIONS PRECEDENT TO
OBLIGATIONS UNDER ARTICLE III
SECTION 6.01. Stockholders' Conditions. The obligation of each of the
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Stockholders pursuant to Article III shall be subject to the satisfaction or
waiver on the Closing Date of each of the following conditions precedent:
(a) No Injunctions or Restraints. No temporary restraining order or
----------------------------
preliminary or permanent injunction of any court or administrative agency of
competent jurisdiction prohibiting the transactions contemplated by this
Agreement shall be in effect.
(b) No Violation of Law. The performance of the obligations of each of the
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Stockholders pursuant to Article III shall not constitute a violation of any
laws.
(c) Representations and Warranties. The representations and warranties of
------------------------------
the Company set forth in this Agreement shall be true and correct in all
material respects on and as of the Closing Date an as of the date hereof, as
though made on and as of the Closing Date.
(d) Covenants and Agreements. The Company shall have performed, in all
------------------------
material respects, all obligations and complied, in all material respects, with
all
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covenants required by this Agreement to be performed or complied with it at or
prior to the Closing Date.
(e) Merger Agreement. Each of the conditions to closing contained in the
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Merger Agreement shall have been satisfied or waived.
(f) Stockholders Agreement. The Surviving Corporation shall have executed
----------------------
and delivered the Stockholders Agreement to the Stockholders.
SECTION 6.02. The Company's Conditions. The obligation of the Company
------------------------
pursuant to Article III shall be subject to the satisfaction or waiver on the
Closing Date of each of the following conditions precedent:
(a) No Injunctions or Restraints. No temporary restraining order or
----------------------------
preliminary or permanent injunction of any court or administrative agency of
competent jurisdiction prohibiting the transactions contemplated by this
Agreement shall be in effect.
(b) No Violation of Law. The performance of the obligations of the Company
-------------------
pursuant to Article III shall not constitute a violation of any laws.
(c) Representations and Warranties. The representations and warranties of
------------------------------
the Stockholders set forth in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, as though made on and as of the
Closing Date.
(d) Covenants and Agreements. Each of the Stockholders shall have
------------------------
performed, in all material respects, all obligations and complied, in all
material respects, with all covenants required by this Agreement to be performed
or complied with it at or prior to the Closing Date.
(e) Merger Agreement. Each of the conditions to closing contained in the
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Merger Agreement shall have been satisfied or waived.
(f) Certificates for Shares. Each Stockholder shall have delivered to the
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Company certificates evidencing its Shares with all necessary endorsements, free
and clear of all Liens.
(g) Stockholders Agreement. Each Stockholder shall have executed and
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delivered the Stockholders Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
SECTION 7.01. Termination. This Agreement shall terminate without any
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further action on the part of the Company or any of the Stockholders (i) if the
Closing has occurred, (ii) if the Merger has been consummated in accordance with
the terms of the
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Merger Agreement, or (iii) if the Merger Agreement has been terminated in
accordance with Article 7 thereunder.
SECTION 7.02. Effect of Termination. In the event this Agreement shall
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have been terminated in accordance with Section 7.01, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of any party hereto.
SECTION 7.03. Amendment. This Agreement and Schedule I hereto may not be
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amended except by an instrument or instruments in writing signed and delivered
on behalf of each of the parties hereto. At any time prior to the Closing Date,
any party hereto which is entitled to the benefits hereof may (a) extend the
time for the performance of any of the obligations or other acts of any other
party, (b) waive any inaccuracy in the representations and warranties of any
other party contained herein, in Schedule I hereto, or in any document delivered
pursuant hereto, and (c) subject to applicable law, waive compliance with any
of the agreements of any other party hereto or any conditions contained herein.
Any agreement on the part of any of the parties hereto to any such extension or
waiver (i) shall be valid only if set forth in an instrument in writing signed
and delivered on behalf of each such party, and (ii) shall not be construed as a
waiver or extension of any subsequent breach or time for performance hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests, claims, demands and other
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communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to the Company, to:
c/o Xxxx X. Xxxxxxx & Company, LLC
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
with copies to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
and:
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Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
Suite 2600
Tower at Erieview
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxx Xxxxxxxx, Esq.
(b) if to the Stockholders, to their respective addresses set forth on
Schedule I hereto.
SECTION 8.02. Interpretation. When a reference is made in this Agreement
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to an Article or Section, such reference shall be to an Article or Section of
this Agreement, unless otherwise indicated. 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. 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 Merger Agreement and the
consummation of the transactions contemplated by the Merger Agreement are
transactions contemplated by this Agreement.
SECTION 8.03. Severability. If any provision of this Agreement or the
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application of any such provision shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof. In lieu of any such invalid, illegal or unenforceable provision, the
parties hereto intend that there shall be added as part of this Agreement a
valid, legal and enforceable provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible or practicable under the
circumstances.
SECTION 8.04. Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 8.05. Entire Agreement; No Third-Party Beneficiaries. This
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Agreement, the Merger Agreement and the Company Agreement constitute the entire
agreements, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of these
agreements and none of this Agreement, the Merger Agreement or the Company
Agreement is intended to confer upon any person other than the parties any
rights or remedies thereunder.
SECTION 8.06. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO ANY APPLICABLE CONFLICTS OF LAW.
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SECTION 8.07. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
SECTION 8.08. Enforcement. 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 any court of the United States
located in the State of Illinois or in any Illinois state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Illinois or
any Illinois state court 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 and (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 a Federal or state court sitting in the
State of Illinois.
SECTION 8.09. Stockholder Capacity. Notwithstanding anything herein to
--------------------
the contrary, the Stockholders enter into this Agreement solely in their
respective capacities as stockholders of NextHealth. No person executing this
Agreement who is a director or officer of NextHealth shall be deemed to make any
agreement herein in his or her capacity as director or officer of NextHealth.
Nothing herein shall limit or affect (a) actions taken by any Stockholder in his
or her capacity as director or officer of NextHealth or (b) the rights and
remedies the Company may have other than pursuant to this Agreement in respect
of such conduct undertaken in the capacity of director or officer of NextHealth.
[signature pages follow]
-13-
IN WITNESS WHEREOF, each of the parties hereto has signed this Amended and
Restated Voting and Contribution Agreement as of the date first above written.
ANAM LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. X'Xxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx, Xx.
Title: President and Chief Executive Officer
STOCKHOLDERS
/s/ Xxxxxx X. Xxxx
-------------------------------------------------
XXXXXX X. XXXX
/s/ Xxxxxxx X. X'Xxxxxxx, Xx.
-------------------------------------------------
XXXXXXX X. X'XXXXXXX, XX.
/s/ Xxxx X'Xxxxxxx
-------------------------------------------------
XXXX X'XXXXXXX
BTM IRREVOCABLE TRUST UA DATED 09/08/89
/s/ Xxxx X. X'Xxxxxxx
-------------------------------------------------
By: Xxxx X. X'Xxxxxxx, Trustee
-14-
SCHEDULE I
----------
TO
--
AMENDED AND RESTATED
--------------------
VOTING AND CONTRIBUTION AGREEMENT
---------------------------------
Name and Address
of Stockholder Shares Owned Options Owned
----------------- ------------ -------------
Xxxxxxx X. X'Xxxxxxx, Xx. 2,185,917 135,500
c/o ODE, L.L.C.
000 Xxxxx Xxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxx -0- 30,500
c/o Xxxx X. Xxxxxxx
& Company, LLC
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Xxxx X'Xxxxxxx 500,000* -0-
0 Xxxxx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
BTM Irrevocable Trust UA 195,637 -0-
dated 09/08/89
c/o Xxxx X. X'Xxxxxxx, Trustee
000 Xxxxx Xxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
*Subject to a Voting Trust Agreement, dated December 30, 1999, pursuant to which
Xxxxxxx X. X'Xxxxxxx, Xx. may exercise the voting rights of such Shares in his
sole discretion.
EXHIBIT A
---------
TO
--
AMENDED AND RESTATED
--------------------
VOTING AND CONTRIBUTION AGREEMENT
---------------------------------
JOINDER AGREEMENT
The undersigned hereby agrees, effective as to the date hereof, (i) to
become a party to that certain Amended and Restated Voting and Contribution
Agreement (the "Agreement") dated as of November 28, 2001 by and among Anam LLC,
a Delaware limited liability company (the "Company"), and the other parties
named therein, (ii) that for all purposes of the Agreement, the undersigned
shall be included within the term "Additional Stockholder" (as defined in the
Agreement), and (iii) that Schedule I to the Agreement shall be amended hereby
to include the information contained on Schedule I hereto.
The undersigned's name and address, "Shares Owned" and "Options Owned"
(as such terms are defined in the Agreement) are listed on Schedule I attached
hereto.
ADDITIONAL STOCKHOLDER
___________________________
Name:______________________
Dated:____________________
-2-
SCHEDULE I
----------
TO
--
JOINDER AGREEMENT
-----------------
Name and Address
of Additional Stockholder Shares Owned Options Owned
------------------------- ------------ -------------
-3-
